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Tous les autres exemplaires originaux sont film^s en commenpant par la premidre page qui comporte une empreinte d'impression o\i d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole — »► signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, pjanches, tableaux, etc., peuvent dtre film6s d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est filmd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. by errata ied to ent une pelure, fapon d 1 2 3 32X 1 2 3 4 5 6 ip '. i s.i ! K ^1 I n. CANADIAN PARLIAMENT. il- ?:ij f»S?^ " ! ' -' t I J ; ! LEGISLATIVE ASSEMBLY, QUEBEC, March 11, 1853. ADDRESS OP C. DUNKIN, Esq., before the Lejjislative Assembly of Canada, on bekalf of certain Seigniors, petitioners of the Honorable House against a Bill introtluced by the Hon. Mr. Attorney General Drummond, entitled "An Act to " define rights of Seigniors and Censltai'cs in Lower Canadi, and to facilitate re- " denaption tlHtreof." Mr. SpKAKKn: On bcliiir of ipropriftors of Seigniorit* in Low Uii' p.titioH'is r CaiW(la, 1 up- jficar before you lo rcpreseut ciKtuiii o!jj(!Plioii.i arhich Ihey fuel tht'inMcIvf:s jti.siilioil, in nr,.jiim; to ithe further pro^rcis of th? bill, wliich has just ibeeu called up btfors tbi^ 11 'ii. H^ai;!'. And curely I do not H:;y ;inyLhin^ C/i'.ruo.-'iiiKiry wlif'u K doclaro that I appear before you wit!) a gojd 4eai of embirras^iiituit, and ov<-n of regn;t. 1 am Swfore a tribunal corlainly of an «-Kliiioi(!ina;y — ♦srtainly also of a Vc-rj bi^li chuactLT ; and I have to contend against atn^ng prepissssiions a k! powerful iulereits. I havo to apo;i!c on bt-half "*" eJieiits,r*w in cumber, a:v.! of •-"x'.reiiii?!y aiiall i.. SuenPe in th(»con;imuiiity ; ;tad I find tiiit I iubjiir «ndi;r dih"i'uUi(N* of ap'^cnliar clurac;*?;-, as w II (from tiio phyiiral innpossibility of speakiisg in botk the languages usjd by members of tlii* Hon. Houie, as from other causes. I should be hajjpy, were 1 able to do no, to adihcrjs the House m bi>Ui liiBgnages ; but I know that those members wl.ose ikngiiage I do i:ol use will be capable of und.r- tftaoding me, and I tnjit they will feel that my Jfiilure to addreaj them iu their own tongue pro- <0cdi from no dUrespeet. One other re;jtret also A have oa thia occasion ; it is that I am obliged to cause, though 1 ns ol l.'.iuris set a5ide. Thus speakii),'; tlicji — under thc-i; sauctioiis — iu spile of prepo.isessions, notwitlis:;u.'diiig the mea- sure I oppose is introLluced iiv an IJ.'.iiOrable Mem- b.*r of an Administration gi-r;'!rally understood to bt!stro;ig enou;,'h in the coiJideiici; of this House to c.irry its m(:afiures — ! still hsv,- confidence in the justice of my cause and in this lii;il> Tribunal — I still believe that I sh.'ll !:ot labour in vain. I shall lay buloro tlie House aivl the country f.ict^ iiotgenerallv ki;own A goodd^'al has been published to t)io worl ) since this Bobjocl was last discussed, which htd previously been obscure. .Sjveral volumes have been printed which contain the great 'r part of tiie titles of the Seigniories of f.ower Canada ; aud besides these, rpoiti in both languages ol a number of orrti* wiiich had ncvtr previously seen the light. Thare have also been published considerable extracts fr'jin the corresjjondence of the high officers of the French Government, of the Goveniors and In- tendants in Canada, the Ministers oi State, and even of the Sovereign, and it is my belief — my full and firm belief— that from these titles now first placad in a poiitiou to be understood — these tirr^ts uow first made known — this correspondrtoce now first opened to historical research and legal deduction — a case can be mude out, which could Dover beforo have been made out. I have not the vanity to hope that I shall he able to do this by me; fliy drawing new arguments from c d facts ; but I have studied these dorum''rfj as attentively as possible, aid as 1 believe none olh ,* ever did study them, and it is upon this close examination that I found my opinion. They »••? arranged not in order of time, noi of place; and the Freijch ar.J English versions are not eveji arranged in the same onlw. This I m.'ntion tixshosv the dilii'-ultv' ofstudyiag them, and from no iiitectioii of iiujiiiting blamo to t lose who compiled th(\m. In going over these vo'umes 1 soon found that th undtraland those docu!!i;.'n:s it would be ne?essaiy to arrajige t.hem in the order of their dates, and 1 ho.ve therefore so done. Thus a: ranged, I htve carefully gone through them all, and hwc aicenaiued wila tolerable accuracy to what Seigniory each title referred. I think t have made owt a nenrly per- lect list ; that [ understand all tnetilles; and I now say that from this examination of the wliole, and from the comparison of each part with the ©ther, I have been forced to conclusions to which 1 never tSooght I should arrive, — to the conviction that the fact in regard to this question is that which »ery few peonle of late years, have believed.— I enter into these explanations bficause I may he thought to owe an apology to the House for laying down propositions, for which those who have not studied the subject so carefully as myself are not prepared : If 1 I'dil to bring forward good reasons, o;i my head be the resporibibiiify. I believe there is no (piestion of the truth of one proposition — that it has of late been held as tbe fixed tradition ol the country that the Seig- niors are not proprietors — are not what an Eng- lish lawyer would be cjlled holdei ; of freehold es- tHie ; but are rather trustees bound to concede at low rates of charfre to all who apply to them for land. On this pio[>osition alone can tho provi- sions of this bill possibly be justified. If this be properly helil, I admit that much is to be said m favour of the measure. If the Seigniors were ori- ginally merely trustees bound tu concede at low charges and reserves, it may fidlow that only a moderate de^jree of mercy should be dealt out to them. Still even on that head much may be siiid, 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 fhe House on this ground ; for, supposing even thai bel'ore the cession seigniors were bound to concede without exacting more than a certain ren'., or reserving water courses, wood, banalUc, or ■> hing else, still it may be argued that for • three years the machinery of such old , us ceased to exist ; that the courts and ^the l^^.iature, and the government have treated these persons as absolute proprietors ; and that thus they iiave changed the properties of the tenure, and placed the Seigniors in a new position. That being so, it has bcvMi argued, and 1 think properly, that it would be hard to fail lo respect those rights of property whi'-.h a usage of ninety years has established. My duty to my clients and to truth, however, lead me not to stop short ■with this argument. It is my duty to object al- together to the jnoposition on which it is attempt- ed to defend the prf.sent bill ; and I do now dis- tinctly deny the proposition that the seigniors are to be looked on as trustees of the public — as agents bound to discharge duties of any kind whatever. My proposition, on the contrary, is that the Seig- niors are and always have been proprietors of real estate ; that whatever interference may ever have taken place with reference totheir properly was ar- bitrary, irregular, inconsistent with principle, and not equal in extent to the interference exercised over the properly of the ccrwiTaire. 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 look place in respect to the property of the habitant. If the Seigniors were 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 1 run counter to vhe traditions of i«te currently held — to doctrines which are sup- ported by the authority of men for whom I have the highest respect, and trom whom I differ with Kluctance ; but from whom I dure to differ never- tiieless, because I believe I h&ve looked more closely than they have done, or eoald do, into tbe titles and arrets which form tbe evidencr. on thia subject. 1 neither reflect on their ability nor on their integrity — I do not doubt ttxe honesty of their conclusions : but yet I see that their doc- trines were well fitted to obtain popular cre- dence, because it is always popular to tell th« debtor that his obligation is not justly incurred. I do see that certain circumstances have given currency to opinions that will be found on exam- ination as destitute of foundation, as any the most absurd of opinions ever vulgarly entertained. If the Sei;i,'niors be trustees and not proprietors, this much must be conceded — that their capacity of trustees must ar'se eitiier from the incidents of the law ill France before their grants ; or from some- thing which link place at the time of making the grants — from somethini: done here in the colonj or by the authorities in France before the cession ; or, lastly, from soniething done since the cession ol Canada to the British crown. On all these points, I maintain that there is nothing to show the Seiirniors were trustees, and not propri- etors — everything lo show that whatever inter- ference was exercised over their property was ot an abnormal character. As to the tenor of the prior French law interpreting the subsequent grants in Lower Canada I will n"l say much, because, though ad- dressing a tribunal, I am not addressing profes- sional lawyers, and ought not therefore to talk too abstruse law. I shall therefore go as little aa possible into details ; but venturing as I do on a position which professional men will and must attack, it is necessary (or me to state some reasons in support of llie conclusions to which I come. it would be a singular thing, considering what we know of France, if in the sevente3nth and the early part of the eighteenth centuries any idea should havt been entertained by the French crown and government of creating a body of aris- tocratic land-holders as mere trustees for the pub- lic, especially for that part of the pub!ic which was considered eo low as to be unworthy of atten- tion. For ages, indeed down to the great revolu- tion in the 18th century, the doctrine which pre- vailed in France was a doctrine which made public trusts a property, certainly not one which made of property a public trust. The Seignior whc was a Jusiicier was the absolute owner of all the many and onerous iues, which he collected from the people subject to his con- trol. The functionaries, even, whom he employ- ed to distribute the justice — such as it was — which he executed, held their offices for their own ben- efit—bought them and sold them. Trusts were then so truly property, that the majority of the functionaries of the vory crown itself possessed their offices as real estate, which might be sei- zed at law, sold, and the proceeds of the sale dealt with just as though the offices had been so much land. The whole system regarded the throne as worthy ol the very highest respect ; the aristocracy as worthy of a degree of respect only something below that ac- corded to the crown ; and the people as worthy of no respect at all. Was it at a time when pub- lic trusts were property ; when the people were only not slaves ; v^hen we must suppose that the French King, about to settle a new and grtet country would seek to introduce the state of thing! which prevailed in the old country— was it, i«o, when tH A« & :')si| fjf the u name :, pk wer iney w^ the statd these g| Now, ivho 4' I s ■i "wb«n the Kins was here creating Seicniora Haut Jititieun, and raising some ot therii to high ranU in the peerage ; that he gave the grantees what only liurported to be property and was reall/ a public trust, and this trust to be executed in behalf of a clas" for whose wcllare the king cared no- thing ? The idea is natural to us, because wo ikfcsociate the poworof the crown with the happi- rK.«s and welfare of the people governed. We are HO t jMsitive that we almost shrink when speakini; fjf the 10 wcr orders, from callinj; them by that name ; but this was not so then. Then the peo- ple were cmpliatically the lower orders, or rather ■iTiey were hardly an "order" at nil. 'I'his was the state of things here at the time of making these grants. Now, umier the French system, there were four principal modes of holding real estate. It wa* Bometimes held mule.- certain limitations. All ■who did r>nt hold by the noblest and freest tenure, >nay be said (il out wants to u or cucf/nye. But all these kinds ot property were alike real estate held by pro- prietors. The" Mer in /ra/ic rt/cu no6/e held by the most independent tenure possible, which ad- mitted of their dispoiing of their 'and in what- ever way they pleased. 'Jh? holder in/n/n(," alcu roturier held as tr- ely ; with this reservation only, that he could not grant to inferiors retainiiijr feudal superiority. The holiier en fief was bound to his superior, and could grant to inferiors under him ; and the holder en roture or cennve was bound to his superior, but could have no inferior below him. As to the essential character of the contr'^ct in- volved in the granting ot land en fief, I refev here 10 one authority only, that of Herv6, the latest and perhaps must satisfactory writer on the whole Biibject of the Seigniorial Tenure. In his Ist vol. p. 372, he says, speaking of this contract : '' il doit itre difinie une concession faite d la charge d'une reconnaUsance toujours subsislante, qui doit »e manifester de la maniire convenue^' ; " i! '* must be defined to be a concession made "subject to the charge of an always subsisting "acknowledgment, which must ba :nanif cited in " the manner agreed upon." This then is the essential of the contract — a superior holding nobly grants to an i.iferior who admits his in- feriority and acknowledges it — how ? Why, ob- serve — in the manner agreed upon. The k-'id of acknowledgment is the creature of the agreement between the part es Here, again, is the defini- tion of the holding d tt/re decent taken from the same author, vol. 5, p. 152. " Cist le bail d^une " portion defiefou d'alleu d la charge par le pre- '* neur de cotuerver et de nconnditre, de la ma- " ixiirt convcnue, un rapport de sujition toujour* " tubsiatant entrt la portion eoncidee et celU qui " iM l'e»t pas, et de jouir roturiirement ; " it is *' Ibe grant of* portion of »fie/ot aieu, subject to " the charge upon the taker of maintaining aaJ "reco;ni8inK, in the .itanner of^ttd upon, a rela- *' tion of subjection evei subsisting between tke " part conceded and that not conceded, and of " Holding as a roturier." The holihr tn rohtrr was a propiietor, but he muit always lecosiiin^ his chief— ne was a commoner, while the holder en fi'f held as a noble. ISoth tenures were crea- tures of contract. In some parts ot France some customs, in others other customs prevailed, and in the silence of contracts the customs governed the relations between the parties. That custom which regulated everything in Lower Canada is well known to be the Covtvinc de Paris ; and under that, as indeed under most customs, the grantor was at liberty to grant on all kinds of conditions, and the appeal was only made to the regulatioru of the ('us^om in the al)sence of contract. Par- ticular customs prohibited certain conventions ; but ill genera! tnen granted whether en fitforen ccn^irc, as t. -jy pleased, only observing not to transcend ct^rtaiii conditions of the cus^OTi to 'vhich thoy belonged. ! admit, of course, that durinf a long period of dim iintiqiiiiy neither land held enfufnor that held en cdi'ivc was really and truly property. In those days such grant of land was merely the f^rant of its use, and ti.e holder could not leave it to his children or in any oth^^r way dispose ot it. But in process of time it became the rule that holders of land en /tc/ could part with it by will, o' by any contr.»ct known to the law — by sale, lease, gr r\t rf ccns or d rente, oi in any other way. 'l ti.e holder did thus part with his land, the Lord o' th** land might claim his certaia amount of dues : if it was a^ic/that was sold, the buyei had to pay a r/um<. Hut I repeat, subject to these pajineniH the holdei could soil hiafiff or any part of it ; only in the latter case he could not make such part a /lew fief. The pur- chaser would merely become a co-proprietor with himself. Indeed, subsequently, still further reUzatlrn came to be allowed. Within varying limits the holder en fi'j 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 other* wise alienate two thirds of his fief, if he only reserved the foi to himself — that is to say, if beheld himself s'ill as the master of the who!e, and retained some real rieht, large or small, over the land. He might take the valae either in yearly payments or one sum of money, provided he only retained something payatile an- nually in token of his feudal superiority and pro- vided also he did not dispose of more than two thirds of his holding. In Brittany and elsewhere the whole of this system of disposing of fief t was unknown. There the lord could not sell part ot his/ie/. He could either grant it nobly or tn ro' lure ; but could take only a small cash payment ; and supposing he had ever granted land at a par* ticular amount of rent, he could never afterwar«ls grant it at a less rent, and this for the reason that the interests of his superior in the land was affect- ed by the amount of the permanent rent. Thut he had the right tc demand that the bolder below him should not make away lightly with his pr*- ' porly— that th« value of his property •bould he i. kept «r. Thai w«» the rMtriction in thMt cim- lom : b«t it did not •nil in the cuiiom of P«ri», No lawyer will deny that by ihe lawofFrnnce »Jlthe©blii:«tiorn on holdort o< land were iii the iaterrtt of th« lord and not in that of his inferior. Jl wai not ihen Ihn fwhion to think of the infe- rior at all ; but only fo take care that flie 'hipf was not cheated by hi.i vaasal, nor the Seiunior by hit C€n«7a»re. This doctrine thus held in Fiance waiequdlly recognized in Kuglund by Jii.te.mi Ckarta, which whs to a Kri'al Client idoiiticul •with the custom of Normandy. On<( of its arli- ciia nrovid'-d ihiil no {ret> muu shou'd ijiant u'.v::y aomuch of hit* l.«.id. a!< (hit ciiowf:h thoolt! ml U left lo mubl« him to (uUil all hia dutios to hu ]ord H'-re it WR.1 pliin toa* it w;ts lit! lord who made the dfrnutvl— that h \\m ho v.l;.. clai.u.-d from his vassal tho rritution of no nriii.'i) laud m tras necesnaiy lor lh»' servi. n of lii^; lord. In those day th-re were no oljtu rioi^i niiidc to vvidx •nread nrojiertii « in li.<' ban Is of indivi.lu ils. In- dividuils tn>Jd n ohI c.Kten-ivo pofsi-.BJin.s and cultivated limn by d^pcnd.T.ts ofall sjrulcs, Jor tkein wu bei cfit ; not at nil fur thui of t!) ir .si;!)- ordinateg. Thj Linhcr c!a>:^.s alone wtn? r.'- garded.andit vrould l.ave hv.eu h\\An%>}, if the crown had cr.-.ited a cla^scf nobiliiy and f!;ranf«Hl tliem largH fr/clK ot land, and yet Lsd JKl-ndid tiiat they should b.' tr.t're agents for classes behw t'lem f II- cUbscs for whi;'li th*i ruleis cared r.ot I now pass to tho concideration of the terms of tke granta oiade in Canada, and of tbu ju inpru- deiice wliicii |)!«vjiicd Irom tho sellleRH-iit ol th' country to i's nssion. Tho poriod beir.fja long otie.I may Jiviil.! It into ihi^o purls— tiie lir i ending with I6'»3, when the t'onipany of New France or the hundred Associatcf. was dib.solve'd ; ijlip secoml fiom ihar period to thf^ pmsing ot ihn tmU of Marly rogitteied in PI I \ and the third, ■koxa tht nre to tho cession of tha couii'ry to the crown of Great Britain. Iftbrouuhout th1ike volume-i printed for this Houae ; by it the ■ling eranted in lull property all the country of Mew France or Canada. The document eets Iwth :— ** And for the pnrp<'sa of rtpayin? to the mid connpany the hoitv 7 expenses and RdvancLvs iae«e»sary to be made by the said company, for the purjK'Sts of the setllenmnt of the said cdnny WKi the iwpporl and preservation of tht; gam.*. His Jlajeity wilt grant to th-? said associates, thi'ir iheiia and as.3igi« forever, in full property, with right of sei:;niciy, the fort ai.d setilcmen! of f-lwe- ib«c, with ai! the cmitUry of New-France calle^l Caaada, &c., toeelher with the lands wiiMti, and along the rivers which paei 'herein and disrhir Great River of Canada, and in all other rivers which flow herein towards the .si a, together also w ith the lnnd<, mines and minerals, the said mines to hold aiwayg in cotr] li- a&ee with the terms of the ordinance, ports and hafborij rivers, pondt, islands and ieletp, and gf^n- •ra'ly all Iks extent of the said eouutrj, in WiwH^ • id in brtadth, and beyond as far as it wilTbe postiblo to extend and to mikt known (he nam* of I lis Majesty,— His Majesty meiely reserving th t rif(ht of Fitaliy and Hom.igu, which shall be reiiilered to him and to hi,s royal successors kc." " It will be lawful (or the said associates tu improve and dual with the said lands as ihey maf soti meet und to disliibnte the si.me {\y th'>80 who shall inhabit the said country ^r.d to otb'T.H, ill such (J lantities and in such manner as they may think pr p m ; to give aaJ giant them &iii h ii(l.:s und hunors, rii;hiH and poweis as they may dfi'iu projii-r, esuealiii! ardnecoMary accoriT- inj; t» Ih'i q lality, condition and rn'irits ot tlie in- d/.id'.iils, and yiicrally upon each charges, re- B.rves and cm tliiioif as ihey nay think pro)>ei-. {"u' nevoiih;''i'S<. in case cf th. ertciion of any duchy, inaiqiii.^Ue, county or barony, His Ma- jesty's It^ltcru of conftrm.iiion fthall be obtained •ip-ace; to huv; fortrcese.i, in fact to be ciothni with all the altribnies of sov.'iei/nty ; an«l it Is provided that ali limitations wliicb might appt.'ar lo be made by the Custom of Paiii, or o:herwise, were to be dia- p::iiS8l with. Thuv vvero to grant lo anybody anil everybody on just such ternn a.s they plcasid. Tut ru Wert; grar.i.s ni.idtj befor • this period ; but iionu of ih ■nis«em I" be in fiice ; ao that 1 bogirt with this {^raiit lo the Company ai iffording the hoy idea, wbich inteipr(>ts and govorr.s all that fill ow. Th« Compri!!y g:a;.ti'd, under thisam- pl'! charter, a conrider.tbie numbur of Seignioriea liolwetn ihe years Hi2*f and lGi53. By extmia- in^ tho printed titles and addinysnveral others ob- tained elsL-w heru, I have found out in all sixty ons, of which sixteen are either duplicates or hare nover be^n takeu possession ol.or have been for- fiiited. Forty five are thus still in force, and othtse thirty tire are in th:> dooument.s laid before ti'iis hon. House. The toiai grants in Lower Ciioa^ daareabnut t»rohur>dieJ«n tj-itfhty. ThoCompa- nj 's giants, theretore. form about one sixlH of tke whole of those no a »xisliiig. Hjese grant* cover £n «.xti:iit of nearly S.OOO.OOO of arpents, accord- ing , p.'opprly '■' and «eiuniory forever vuiii p-reeis^ly tha same '• rights as those und'.-r w hich it has pleased Hi.i "tkesaK)( •nd absolut words whi< re*d tk«:n. perty ; it g trut in the " thing* lb< " wii ">ie',i; '' a place ii " arpentfi i\ " the conv.; " whirl} pi ' oifQueboc the other gr mcaa tosav hut when I pressioiis of not believe Dioet ab^ol property; 'v sucb a g;r-.)n leade as to . property, \v ike tract of The to'lj' Descharnba " We hav cn, granted power conf«i the establii-l presents giv places herei arpents of (•ign ted for there rem.-. ii OTftdjoinin;' with a s'ini* }j ; moreov outside th'} • bee and olos conceded ;- " And ha* vigny wiven presents do the power CI league uf la: said River ^ lo commenc tfie moith < depth inland or on the oil Sieur de Ch Itotd, unto hi bove conced 1h«m, to wi city and and ikirty arpen n roture, s>. ctni, payab on the day \ the sanl cea anendcs ; a St. Lawrenc full proper!] ever, unto i crtheless to Here agai and another but one a v« ibaa the oth nuntrj. in \ef^ far M it winV (noMn the nam* leicly rraerviflf wbich ahaH be succoisor* kc." lid iMuc i«te« ti> iiids as they niaf the Bumo ft> country tr.d to such manner as aoJ giaiit them |!OWfis as tbey uro(.« .uy accord- noritti of tti« in- ch ch.»rgn», re- y think pro|>«f. c/tctiofi cl any roiy, His Ma- all b<> ohuined Kiiiinence the uppiinletiJai.tor I lfi2'< toacom- raordii.ary pri- ir or pnacp ; to d wirh all the is provided that r to bt* ir.nJe by were to b« dia- tit to anybody as they pleas, d. lis period ; but HO that I bogin 13 ^ffordin;^ the ovoiiis all that under this am* r of Seigniories By <>X'iaii«- vera) others o^ in all sixty oiis, catcfi or haro have been for- in force, and tents laid beforv in Lower Caaa'* y. TboCompa- onesixiHof the ise grant* C0T«r rpcots, accord- of gre;it accu- a lands in Sei^ of arpeiita, the iny is not far these grants CfiM, and one of it the St!igni(»r}i> d'h lt)34, aiMl i)g dr^irous to jive and grant apjiuitenance* one le'-gue of St. Lawrence^ I on the lands f River Notre ifoif.'said rire*, inRf ) to ett\(>y irG;ffard, his "itict', properly fl-ly iha same is plyasw! nil " M«j«t1]r •• gnuil itia reantrv of Saw Franca to " thaaaid Company." Is not that an irravoeable «Ad absolute grant of property t I think if there are words which can cutvey such a grant I have just rsad lh«.-n. Hit the i(rant conveyed other pro perty ; it gives another piece of land d titrt 'U ffiMinthe fjllowin^ terra*. " llfiides which " things the (^oinputy has alsa iiC':arJt!d to the " sail '>j«««r(;ift\rd h.s sjriosio-s or a|/rm? fau,.i! " a place near the fo;t of Quebec, containing two " arpentis ire88ioii8 of the other portion of the grant, I can- not believe that they were not meant to j,'ive the most ab«i' ur de Chavigny, giv- en, granted and conceded, and in virtue of the power conferred on v.t by H;^ Majesty's edi:t for th« establii-hiij'int of o;ir Company, do by these | jiresenis ijive, gran*, nrid concede t hi lands and i pJaces hereinalt.-r dr-'s •ribed, thit is to say : two | arpents of landti be tak'M in th; placode- j n:gn teit lor th.; city and binli'Mieof 'ii-jhoc, if there reuMin util! any tincorcdid lfjr» !>« takf n oijiside ih'j said ba;iij(:ue uf iha saw] ciy of Qu;- bec and close t J the aanue, in th« laiidi lut yi-i conceded ; — " And have mo: cover to ;he ?!\id Sicor do Chi- i-igny n:iven,gia!;t,,'d i'.nd coiictd.^d, and by th-.-ae presents do iiiv", ijrant ami concede, in virlne ol the powi'r co)t'i,'rred o.i oursiid C'^inp.iny, hail a teague of l.uid in wid h, to be t:?keii r.lonjj th.i said River .St. Liuvrence above .-tnd viulow (J-j .'bee to commence !Vo:n Throe Rivers only, down to themoith of ihe s.,id riv.ir, by three leajju'rs in depth inland, eith;'r on lU". sivk* where Quebec is, or on the oih'^r ohoru of the said river, as the said Sieur d« Chaviijny moy desire ; to have nn<» to koJd, unto him, his .•;u:re33or8 and assigns, the a- bove conceded lands, iij fuil properly, and possess Ibem, to wit-: the said two arpents of land in the city and and banlieue of Quebec, and the said thirty arpents near and outuide the said banlieue, . him, his successors or a«- signs, under the said charges .lUil coruUtiuni above a»«"ntioned, and mjreov-jr subj-.'ct to the payroent of one (/c'licr of tv'is r.>r each arpent every year to he computed from the lUite i)t' the said grant" Tho h;ime rcwt • 'tive oharacteristios mark ail tlte grants of laniU c/i roture. The ex;ires.«iori« con- veying property, in tli" grants o\fi-\t': ar.- always itiooini)ar.ib!y stroiiijer thin in tl.vs-'. N-) less than twelve of the grants by this com" piny contain expres^jionH i"([UiviiIont to that which I have read Irom the grant of Deauport, conferring tlio same ri!;hts as the Company bad Irom l!io Kiii;,f. Anioi.ijst tlieneigiiiories thus granted were the following, viz : In Itiol, Jany., i5th B aupoit ; Feby., i5ih ; a ^j./ to the Jesuits — in \'<\Zi Lauzon, i5'.aupr6. and Isle dH>.-L'ans — in KJlJ part of Modtr.-.'.l r.n 1 .^t. .Stilpice — in \iVsi Kcb., 8 t;n.uhiiville~lf.r>;j .March 31 Aiicjmeislation of IJ^iiuport ; Nov. 13, Mille Vachi"-', and the au;^ui(i< ntution of Guad- arvill;!; Doer. l.)tli N'.-uviile or Pointe anx TreinljIcF — 1G:')8, the r-iiwind'-r of Montreal. Of these, Giiardarvillc was jjrantcd for the pur- pose of inducing the grantee to defend a dangerous p:ist. There are ibrco oth-'r grants in franc aku, words which ahrjolutoly relieved the liolder from any obliq;at!on, except ihost to which be was liable as a subject of the French crown ; teutlal sup.'rior he Fiad none. Several other grants were made in fraiu alnoynt to relicioiis hollies, on condition of their giving an Lonorable place to m>.'tnb' rs of the con>- panyat the performance of mass on certain days of ceremony, of taking care of tfie sick, &c. Many exempted the owner from the duty of paying a i/uin/ on mutations, and thus gave him the power to part with the property exactly as he pkaseiL A large proportion of these grants contain tiie words enpUine propriiti, and not one excluded the notion implied in those words ; Several expressly grant some river or some rivers ; many had the words " r.ll the rivers" ; and of course when the company granted with the same rights as they held themselves from the the crown, they gave the rivers, mines, minerals and everything else. So far did these grants go indeed, that in some cases it was even thought ne- cessary to make a reserve of this kind — " The Company does not intend that the present coDr ceMion iliould pmiudice'the liberty of navit{aiion which ihall be roinmon to all the inhabilaniM of Nevr Frunop." Tiiii* clauBt) wa» to be foumi in the gnint of Muntni! in Kill) (p. .'((if) pitcti tt (lucumrnli); an. In .several of IIichk gruntit lliix clause goes on to provide that the Nei^iiiorN •hould cliar^je no N pa«flinK their lundii on the St. fiUwrenee. Were not men, in whose ^(riint.s it wan thomjht r(>(|iiisile to re- serve evt-n the fjreal nviis of the country, intended to be pro|)riett)r>* of Munelhinix ! These (jranls were from Kild to ItifiU, and Were in all no less than nine, which in va- rious ways rr-iervi'd the navigation of the SI. Lawrence. They were ihi- turanl.s of De.scham- bault ; part of Monlrriil, & St. .Sulpice ; Uivitire du Sud ; i)'Aiitro, aui^nientation; rortneui; llepenti;;- ny, Lachenaie & I/A.SMoniption ; FJiTuncour, ini!j;u- mentation of Di-scliunibault ; and ine remainder of Montreal. Itesidi-s these nine, other ^iiniiar re- markable reservations of which 1 cannot mention, every detail, occur in others of these thirly-five grant:9. Anionic these rtservalions, some i'orbid the erection of forts ; and a number of the (;rants imply the intention of the grantee to apply for titles of honour. The (Company of New France could not grant this privilege to its cessionaires without application to the crown, and the grants, therefore provided for thegrantee applying for that favour. There is of course no (|uefltion hut that all these grants implied the duty of settlement and clearing of the land — that when the crown granted land, the grantee was to take possession of, and make use of it. If not, the contract was not fulfilled ; and either the crov^n, or the company — in case the Company were the grantor — might take it back, as if It hid never been given. This 1 admil ; all I contend for is, that the grantees were not bound to settle the land in any particular manner — that they were lords and masters, not obliged to concede en arrifrc.fief nor yet ti rem. There were physical dilFiculties m the state of the new country which rendered it impossible to carry out in it the manners of the old ; but these were circum- stances of geographical jiosition, not restrictions of law. The law imposed no restraint whatever ,* ana as to the grants, very few indeed mnde any mention whatever of the amount or kind of settle- ment to be effected by the grantees. In the grant of Deschambanlt, Pieces et document j). ,'{75, jt was provided the grantee " shall send at least " four working men to commence the cleariiif;, be- " sides his wifo and servant-maid, and this by the ^'' first shii)s that shall sail from Dieppe or' La- " Rochelle, together with the goods and provisions " <■"- their sui)port during three years, which for II shall be gratuitously brongiit and carried h)r II him to Quebec in New France, on condition I' that he send the whole on board of the II ships of the said company at Dieppe or La- ' Rochelle." There was tlius a consideration for this grant— not however an obligation to take out emigrants by the hundred— not 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 come out and settle, with- out giving him a lur^e «iuantity of land, and i«> man would have thanked you for such a (rkot uiileSM he Were to be the muster of it. The grant of Montreal shows asimilnr kind oi. ex|tifclatiligatioii us to the terms on which land shonlil be given to iheso settlers. Someof ihem positively limit the |>ower of grtuit- iiig land ill a very wUiinsiciil iiianiier. Thus in. the grant of Deaiiporl in l*)i)l, the land is \i\\w *' witliDUl the said .Siiur Uitfard, his successors or *' assigns, having tne riglit to di.'poso of the whole " or part i>l the lands hereinabove grunted to him " without the will and consent of the said con:- " j)any, during the term anti .space of ten years." So far then froin its beint; the duly of the Seignioi toeoHCfde, his grant restrain.n his jjower to con- cede. The grant of D'Autirf provides that con- cessions shall be made only to pei.ions residing in new Krai, re, or who shall go out there. That ot .Montreal & St. Sulpice on tlie contrary limits them to persons not inhabitants of New France, but who shall bind themselves to emigrate there. Thirf shows how various were all these grants, and how adverse to the ideas that then prevailed, mus'. have been the notion that the grantees were boutid to subgrani their lands, d ctivt, or otherwise. Besides, a number of these grants tnfief, Were of tracts of land too small for sub-granting (o have been po.ssibly thought of. Isle des Riiaux was a smnll i.sland granted for pur- poses of pasturage to the Jesuit Fathers. Another grant was made to one 13oucher of tv^o hundred ar- ptnts, enjief; and another on theCap Rouge Road, called Becancour, was but ten arpcnis by our>. It appears also that one Bourdon had a house whicU he called Ht. Jean, and which was held en roture. This the company erected, with sixty arpenta of land adjoining it, into nfief; no doubt to gratify the proprietor by making his tenure that of a matt of rank. Under such circunistancos, can it be imagioed that the owner ol Xhejie/ wa.s necessarily bound to concede ? No, he was the proprietor, only with a higher social rank a. d superior privileges than were po.sses.sed by the holder en roture. It was impossible that such a condition should be thought of. The grantees must sometimes bring people out from France ; but the Company could not require them, after they had done so, to make any other bargain than they and the emigrants thought fit to make. The .Seignior could grant or not, as he thought proper. The beginning, inidiilo and end of his obli<;atioii was, to take possession of his land and settle on it ; whsii he had done this, he might do whatever else he pleased. Again, several of tlie.se grants were made to leligiouo bodies for the purpose of securing to therti a rer- enue ; u notion altogether advcr-je to the idea that they were to concede at very low rates. 1 have now considered the lilies of three tentlis of the land held en firf in Lower Canad!». I pass next to the period between Hifio, the date of the dissolution of the Company of New F'-ance, and the year 1712, when the .■Inds of Marly were published. The Company was dissolved because it did little for the settlement of the country ; the ma- jority of the Seigniories were not settled, andd the French King revoked his grant of 1627, ao. took the Colony again into his own hand,;), About the same time several urrels were issued I ol lundi aud it4> >r »uch a (r«ol of it. »iii)il»r kiiul oi lid briiiKout mI- u.i to the t«*riiis > tlicsu vettlerf*. inner, 'i'liua in (• liind in niveu WiH Nuri'eiwors ot itoso of llie whoif ;> grunted to him r ihc said con:- ?o ot' ten years." ^' o( the Seignioi * power to con- I) v ides that coa- i.soris residiug iit tlierc. That ot trnry iiniitt! them Fruncc, but who ate there. Thi.< ■ tyrants, and how prevailed, miu'. nteoH were hound >r otherwise, nts en fief, Were bub-granting to of. Isle dea ranted for pur- athers. Anothet f two hundred or- Cap Rouge Road, (jcnis by oug. It. li a houte which. a held en Toture. sixty arpenta of doubt to gratify iro that of a tnait it be imagined essarily bound to etor, only with a privileges than. roturt. It was hould be thou{;ht bring people out sould not require nake any other t.s thought fit to t or not, as he middle and end sse^'sion of hia id done this, he ieused. Again, ade to religiouiv J to then) a rer- to the idea that ■ rates. i of three tenths ^anad?. I pass the dale of the w Fi-ance, and of Marly were iolved because it ountry ; the ma- it settled, andd It of 1627, an. s own handd, were issued. vtiich have been cited as thouvh th<>y imnorted Uis revocation of th-3 antertident ((rants by 1i)ft (Ompany. Many have thou;:hi that because I hit king said these KtantH '/ere to be revoked, they w»re revoked. I ada.^l, some were : indeed all those which do rot at prf.ierit »ubsiat werfl no ('oubl taken possession oi and granted ni;ain. The fir»t of these JrrtU is of Ib(i3, March 21 , (page 13.). o( the Third Volmnn laiil before Parliament). In it the kiiii; comnlains of tie failure to settle the country aiid alleges : " that one of ihe chiff causes for the siiil " country nut beconiiiig so populous n.s lif '' desired and even ihat ^cveir.i sfltli'iii'Mits Im>I •' been destroyt-d by the lro(|Uois is lo be found in '* in the grants of large (juaiililic^* ol I.imI which " have been accoided to certitiii inliahitunlj of tlio " aaid country, who never being able to tit ar ihfii " lands, and having e.slablihlied their re.sidiico "in (he middle of the said land.'), hive by ihis "means fouml them.selvcs placed at a great dis- *' tance from eiich other, and, liierefore, unable to " succour or aid each other. " At;d the arret goes on to say that, to prevent this evil, tlin king ordains that " within .six months o( Ihe publira- " lion of the present nrret'w Ihe said country all " the inhabitants thereof th.ill ca<:.se to i>e clear- " ed the lands contained in their concessions ; or " otherwi.se, in default of their so doin<; within " Ihe time mentioned, his Majesty ordiins that " all the lands not cleared shall be dis'Wbuted '• by new concessions in the name of His Majesty; "His Majesty revoking and annulling all con- " cessions of land by the said company still re- " maining uncleared." It might be supposed that liiis meant something ; but almost on the same day there will be found in the old edition of the Edit* tt Ordonnances, vol. 2, p. 20, a document directed to a M. Uuadais, a Commissioner of In- quiry. This is dated May fith, I6ti3, andinit the king treats the injunction just mentioned as merely comminatory, and never intended to be carried out to the letter. " In case any of "those to whom concessions have been made, " set to work at once to clear them entirely, and " before the expiration of six months as mention- ■' ed in the arrd, shall have commenced to " clear a good part, it is the intention of His Ma- "jesty, that on their petition, the Sovereign " Council may grant a new term of six monltis " only, which being enled he desires that all the "above mentioned concessions shall be declared " null. " When the arret came to Canada, how- ever, it appears that nothing was done with it the Sovereign Council concenled itseif with merely having it communicated to the Syndic of the habi- tans. before any thing was done upon it—iivunl /aire druit. In f.ict nothing wa.s done, except as to those concessions already relerred to which were resumed and regranted. In May 1664 the French king grtinled a new charter to the company of the West Indies, and shortly after this, was written one of the extracts of correspondence lately laid before this House. I feel it necessary lo a y to the proprie- tors of lands, we .see that yon have got too much to settle ; therefore hiilf must he taken away from you ; but the mere fact of this itrret being i.s-ued showed thiit iho j)ieeediiig one of IfitiS was iiierel V comininatury and had iioi bi.'en acted u])ou. \or wa.s that ori(i72, any more than the other, for almost immediately after. Talon griinted a great nuniher of S';igmories willioiit giiii^ through any formiility whatever, for reuiiitiiig to the do- main of the crown any grants previously made. A third arr-:l on this suliject, al.so diicetiiig the C'icheat of one half of all niiScttled lauds wa^ issued in Uh 1, and dirfcted lo Mt. Diichisneau the then Inlemlant ; but this again wcs merely coinrninatory ai>d never acted upon. Then iu 1676 ioiiit j)owers were yiveu to the liovernor aiid 8 i !'■ Hm TntaBditnt to fmnt kiH()« ; aid la Hf79, Atet ytVB htttr, there was a fourth arret on the lame •ubjeet, which, iike atl the rest was a mere tlixeat. The terms of this laut were anbiogoiifl to tho«e of the vrccedin* one, except that it sets forth that the Papier Terrier or land roll had really been made. The lands granted befor« 1665 were to be cleared with aH dispatch ; if not, they were not as a whote to he forfeited ; bnt one quarter wi:: to be taken off the grants, and one twentieth part . yeaily overy year afterwards. Tlit-rt' is not, howiver, the loast trace of this having tvcr been put in force ; it was merely comn'jinatory ; neitiier one half, nor one fourth, nor one twentieth of any seigniory was ever condsciUcl. Ail w.is a dead letter — u threat i-.ever executed, nor .-pparontl) intended to Iw ex- ecuted. 1 jiass to consider tlu- grants made by the West India Company, or in the Kinjr's name, to !.he year J 712. These grants were very numerous — in all somathinjr .'ess thnn two hundred and aixty, of which some 83 uic eilhf?r not in Canada or for other reasons should be struck off. There r.:';niiin 176, of which one hundred and sixtj' tour arc printed in the vo'iirres bnlbrc ihe (T.nise Two of those not so printed 1 have ob;ained elsewhere. They exctvA four sevenths of the grants now in force, aj.d they cover more than four millions of thi? ten millions of arperit* held tM fip.f That 01 River du Loup {n&ii.T is Oi;(; of those ^ranted by the \V. I. Compuiy. If i^rants "On the south side o: the «r.3at River St. Lawrence, one league above and one lea:jiie below the River du Loup, by one league and a half in depth, and the owaership of thes;iid Kiver du Loup, and of the mines and iuin.'r::l;, hires and other rivers which may be found wit!ii;i the said concehsion; and a!.so the islands and b;;riches in the .-raid Kiv<;r ^-t. Lnw- renc, opposite thr* srr-i.i ( oncopsion, with the ri^ht of hnntiuij av.d Ihhu.i; throughout the who'o of the said cone, ssion ; to have and to hold the same unto th- siul ^hcat dc ia Chesnnyo, h:s heirs and assigns, for ever, in Adl property and seig- niory." The grant of Terte'.iorni? is in similar terms, and both w»re oonfirrnei; hy the Kin,'; in 1674, iit the time of the !v>voca ion of the char er of the W ... Conipany. Indesid ihe clause ofihu r."V()ca?i;)n 1./ which these <;'.Mnts w^ere corLlrm-xl was of a \'vTy extensive natur"-. '* We l;ave rendered yr'iii, approve and corifir.-n (he concessions <.f " land accord, d oy :he directo s, their aijeiitsorat- " torneya.and the i^Rrti.'uhr salc^ wbith h.;vc " been m;ido "f any b imitations storehouses, fam;s •' or inheritances." So thut hy this act, even sales xnade by the Compiriy w.;.-c coniirmed. Besides these grant? by th- Company, six in number, there were many in the na:iK* of the Kine diuing this period by Talon, especially to officers r-{ the Regiment Carignan v/hj were then settling in the country. A number were also granted by Frontenac and by Dtichesneau. first separately and then togathei- as (iovernor and Intenrfan'.-— And the remainder were granted hy subsequent Governor ai:d Intendanis. In thcH' documents there is great varitty, some Mferring back to grants by the Conpany of ^'ew France, and anirineatiiig them ; the new grants bting qaite ii.s dcfititiite of clauses of restrictions on th»? grantee as the originals. A great number mtntion rivars, like tlMt of Bivar ^ It^iif t Mk^n- Mt furth aa ^hc objc.t af tbc grant ItMt il » to aa- dow religions bodies, or to reward aarvieaa to tVa State. Some even carried with them raiiJl in the. peerage. Others agram were intended to eaaae \h» establiehment of Fisiieries. These of eoarse granted the rivers ; and contained no exprcMiott in any way hintir.g at the id«a of the land beirvg sab-g:anted at all. Tlic thing inteixicd was the creation of fisheries, not of agricultural establish- ments. One grant was made, almost without any eludes, for the establishment of a slate qoarry at jlT^?ttirg forth with di.5:inctnesG each of thwe c isos. I propose here- after to state he who!^ of thos'5 c?Bes and the oihers in print; in the nuMntime I crientiou some of thorn as ex;\mple8. {)n>^ of the^e grants is ol the Isle aux CouvlroB to ihn Seinin.iry of Quebirc ; ^nd' this was expressly upon co:idi!ior» that the land should not be inhabited excep' by pjrsuns belon-j;- in;;; to the Sfrnir.rtry. So fir frirn etlle- merit in favour 'if ih-3 ed loation .\i.'d •inwersionof \\\i In !i;ir3, .;;;d th'refore none but e;c!"siastie3 were tJ live there, iKSt I'lc work of conversion- sh'iirl be int irf;:'rt-l with by lay I'isorders. Thf; o.-)iy kind of refeienc;' in any of these grants to llie probableseltler.ientof iherri by tenantsat aH' is to be found in a elaocie to v;hi h I now ;.3k atten- tion, liken from a grant by Talon of St. Anne d<* la P.:T.:de. " O.'i tho condition that they (shall) continue to hold causa to be held hearth and home on ••••*•• ^ • and that they shaU stipulate in the contracts they may make witli> their tenants, that those latter shall be held to reside within the year, and hold hearth and home on the concessions that may be or have been accorded ta ihem, and that in default of doing this, they shall re enter irito full and lawful possession of the said land.s, — that they shall preserve the oak trees, that may be found on the land which shall be reserved for the principal manor house, also that theyshali' reserve tlie said oaks in all the extent of the parti- cular concessions made to their tenants, that may be proper for &e." It is evident that these wers not clatvies to oblige the grantee to have tenant* The very word tenancitr is an artihiguoiw one : it may mean ccndtaircs, or it may mean something tisu — it is applicable to Ctrtsilciirca, fermitrt^ I I I ■'i 9 I it M to tSL- rvicM to lK« t rank in tks toeaMetiM I of eoara« expreMiM' (and being (i was tbs. tl pstablish- witbotrt any e qoarry at t^ing that tba ing. o/ tb« It (jn'l. absetKe of tor to eom- I certain !bat .*crc granted : the tacultf k ecus could }cat, durini; mads of an litre de cen». t'bich it waa ilsub-holdfir. lers incon- were matte, this state- d«tai)8. To I regret tbat I compfete ig forth with ropase here- ses ar>d the tio!) some of inVi is ol the ;uc'b'.-p ; ■■•nii lat ths fanil S'l.'iB bflori'j;- ibliging tlie • prohibited' ike iiiietlle- 'inversion of e;t;!"«;iastica I'onveifiioft ders. tbcee grants lenanisiit all' w :.3!{ atten- >'. Anne d«:* ' continue to 1 home on at thoy shaU make with' iwld to reside liome on the accorded t» i, they shaU \ ofthCBaid >k trees, that be reserved lat they shall' of the parti- ts, that may these were we tenant* uoneone: it 1 sonwthing :3, fermieri^ ■i Mitn i bail d rtntt, Ate. Bat ap«rt from this am- bicnity, I repeat that these clauses do not require iKe |[rantee to have tenants at all. They merely f«<]Uire, him if he have tcnaiite, to make them live CTi their landa. He was not to part T/ith his lawJ or to create claims upon i? wi*h- cut making those to whom he gave it resirte upon rt ; and they were not tlieii to have it except upon condition of prewjrving tL.<; oak timbur. To show this was the whole meaning of the c lease, it will be enough to turn to other titles of the same period. We Bnall see for instance, that this claiu;c gradually got shortened, an.l tliat it apjK'arcd in a grant of Longuoail, July 10th lti7G (p. ^0 pUccs etducu- ■ntnti) in the fullowiog words : — "that he shall con- tinue to keep and cau.se )o be kept by nis tenants hearth and bom*.; ( Au fi ^J'«) on ths snid soigniory ; that he shall preserve and cause to be preserved the oak tim') jr fit for ship-btiildin,'; which in;iy be found there, &c." In the gri'.nts of St. Maurice and Gentilly, the saine year, the clause is nnrely " He shall contif, le to kceplicuith and hoine(i»»ii> " feu €t licii) on the said seigniory, and shall pro- " serve and caits-^ to be pres.'rvcil the oak timber "thereon." Wherever, irvked. any mention of tenants is to bo found in those grants, it is to pro- vide that the seignior .shall hold them to the duties he waa re'|uired to enforce on them. This was in the spirit of the times, when the highest exerciKod rights on those b.;!ow them, and rocts of .Marly, ♦ith July, nil ; which contains the ratification of 11 grants of various dato? *£ granted under variou-s conditions, but none hmtujg at any oSIigation on the grantee to concede. In this document which 1 have from a client (?.nd the terms of which corr^'spond al- most word for word with those of every hubse- q«ent brevet of ratification that I havo been able to procure) the King expre.ssly recites the Soig- j»ior's obligations as the following, and no other : " To render t'oyd homniai^e at the Castle of St. Lewis at Qu';bec, of which they shall hokl un,Jer ; (to pay) the ordinary dues ; to preserve & caivse to be preserved the oak tre.;s proper for the con.struc- lioa of »es«eU of the king ; to give notice to His Majesty or to the (Governors and Intendants of the said country, of min-^s, ores and minerals, if »ny be found in any par* of the said concessions ; t« keep hear: h and ' -:, and to make their te- nantB do th'* sanr ..ij? which the grants shall b« reunited to the domain of HLs Majesty ; to clear and eausc the sdH knds to Kt ekartd ; s(v« space for roads necessary for th« pablic gmd ; to leave the beaches free, cxecpt those whicli they mav -vant for their owr» fisheries ; and i» case Hir ijesty shall need any port of rocA lands, f(i. the construction of any torts, batteriest /jfrtCM d'(«rmc», majiaiines or other fublie worka. His Majesty shall be entitled to take the same, as also all trees that inay bo n^'cessary for soch pab^ lie works, without huving to make any compee- sation therefor." In ail this, most EiTely,— in all, I repeat, thiit is to be found in all the ;j:rants to this dale, — there is no word indicative of ;!ie imposition on tha Seignior of any oblijtation to sub-grant his lands on any particula terms, or indeed to su*>graut theua at all. We come, then to the arrr.ts of Marly, of th« 6th July, 1711, proni'jlgat.d in Canada m De- cember, 1712. It need h.irdly be observed thai ;here are t^vo arre/s of that date; one aiiiwd a^ the Sciuniors ; the other at the censitaires. Be- fore speaking of the precise terms of these 'irrets, I must remark on some matters of fact only of late brought to light, and which arc estabLshed by the extracts of corrcpfindence printed in the last of the four volumes laid before this Honorable House. From the second of ihc«e extracts, it ap- pears fbi'.t in 17u7, Mr. Raudotthc elder, tna then Intendant, svrotc to th- ing of manyabnsi'N, as he thought them, whicii prevailed in the co'.mtry, and especially stigma- tized the e-T/T it d\t.j}'alrc^ and of law suits whicb bad taken possession of the peopk\ According t<» his id 'as, it was necessary, m order to put a stop to all this litisation, to introdui'e an entirely T>ew law, establishing an absolute five years prescrip- tion, by whi>.^h all sorti* of people sboui€en soW, tKe Superior Lord may by the Cu,-tora come in and take it at tkis price paid, — as not being obliged to accept ol any vassal whom be may not like. The cus- tom (iocs not accord him such rigist, as regards land hold ol him en ccmnoe ■ but it does not prechi4e his agreeing with his censitaire for its exercisew Such .agreements were always common ; and. whenever made, were valid. M. Raudot merely wrong in his law on a most obvij f oint, when asserting the contrary. He go«t on to say : — 10 St ii " There are grants in wliicb the capons paid to the seiKniorv are paid either in kind or in auk, at the choice of the seignior. These caponfc are valued at thirty sotm (lifteen pence,) and the capons are not worth more than tin sous. The seigniors obliije the tenants to give them ash, which they find very ineovrfvient, as hey frequently have none : for, afihou^h 30 soua ap- pear but a trifle, it is a great deal in this country where money is very scarce ; and moreover it •eems to me that as to all dties, when there is a choice, it in always in favor of the party owing cash being a species of penalty against him when unable to pay in kind. \*' The seigniors have also introduced in their grants the exclusive right of baking or keeping oven (/bur tana/,) of which the inhabitants can never avail themselves, because of the habitations being at great distances from the seignior's house, where this oven mast be established." Raudot, then, proposes that all these things should be changed and a new setllonient made — as to all sorts of matters. Some of his proposals, — as for instance, that for suppressing the four Itanal, 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 proj)osal to interfere with contracts and established rights of property, in auianne. utterly itidefensible. The next document in the same voluiou is a letter, or part of a letter from M. del'ontchartrain in aiiswer to this despatch ; a dij)lomatic note, intimating a civil disposition on the part of the Minuter at home to act on the recommendations g}ven him ; but asking for more information. Following this, in the same volume, are two notes from Pontcharlrain to Messrs. Deshaguais aad Attorney General D'Aguesseau — two law- yers ; in wiuch the minister reqUests those two gentlemen to draft an edict on the subject. The importance of these two notes, however is not obvious ; as there is nothing to show that any »uch edict ever was drafted — and it is at least quite certain none was ever passed. M. Ilaudot, in the meantime, in 1708, sent home another letter, accompanied by a memoir showing the various rates, which prevailed in different seigniories. This memoir has not been printed, and it seems has not been found; but this much is clear, that in 1708 Raudot informed the King that the dues paid to the Soijrniors were most various, and mrny of them mo.it onerous, considering that at the time theie was little or no money in the country— that they wore, in fact, so various and so many, that he sent home this memoir with the rccoiiiinendation to bring all to the same level, and this by way of reduction, in or- der to go back to the early days, ics temps d'inno- cence as he called ihiiii when all the rates were low. To these two papers, we have no answer ol Pont- charlrain. There is a short document, dated J711, which has no reference at all to the matter ofRaudoi's letter; and after that we have no ex- tracts till the year 171(5. Did I say, we have no answer I — I am wiong. We have the Kini('s own answer, in these arrets of Marly, of the year 1711; showing how ex- tremely small a fraction of all ,M. Rauool's sweeping recommendations His Mjjesty saw At to regard with any sort of favor. The former ol these arrets of Marly, that which is directed against the Seigniors is in these words :— " The King bein;; informed that among the " tracts of land which His Majesty has beea " pleased to grant and concede in seigniory to " his subjects in New France, there are sooi* " which have not been entirely settled, and oth- " ers on which there are as yet no settlers to " bring them into cultivation, and on which also " those to whom they have been conceded in " Seigniory, have not yet commenced to make " clearings lor the purpose of establishing their " domains thereon : — " And His Majesty being also informed that " there are some seig-niois who refuse, under va- " rious pretexts, to conc.de lands to settlers who " apply to them, with the hope of being- able to " sell the same, and at the same time irnpose " upon the purchasess the same dues as are paid " by the inhabitants already settled on lands, " which is entirely contrary to His Majesty's iu- '•■ tentions, and to the clauses atid conditions of " the concessions, by which thev are merely per- " mitted to concede lands subject to dues (a " litre lie reikvajiccs) whereby very great de- " triment is done to the new settlers, who " And less land 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 "n seigniory, who " have no domain cleared and who have no set- " tiers on their grants, shall be held to bring thecn " into cultivation and to place settlers thereon ; in " default of wnich it is His Majesty's will that the " said lands be reunitad to his domain after the " lapse of the said period, at the diligence of the " Attorney General of the superior council of Que- " bee, and on the judgments (,ordonnances) to be " given iP thatbeha'f by the governor and iieute' " nant general of His Majesty, and the Inteudaat " in the said country ; " And His Majesty ordains aI.so, that all the "seigniors in the said country of New France " have to concede (ayenf d conceder) to the habi- " tans th" lots of land which they may demand "of tlem in their seignioriis, subject to dues " (d litre ttey get cash payment, and so keep back the settle- ment of the land ; which being contrary to the royal intention, he orders that they slmil be bound to make the grants without any payment in money. The irord used to express the dues which were to be stipu- lated is not ccm, but redcvajiccs, a general word, which does not necessarily a holding a titrc de cevs. 1 do not say that this kind of holding was not pre- •ent to the mind of those who drafted the arret ; but what I do say is, that the thing intended was merely that the seigniors should be compelled tograntoncre- dit, instead of demanding a consideration in cash. If it was intended that thegrants must be a titrc de cens, why was not the appropriate and definite word era- ployed ? If it were intended to fix a constant rate, why was not that rate mentioned ? Raudot, as we have seen, in 1707 and 1708 called attention tc the rariety of rates ; and yet, well acquainted with these circumstances, and after his minister had called on MM. Deshaguais and D'Aguesseau to draft an edict, what does the King do ? Do we find him say. you riiall concede at so much, a titre de cenx ? Not at all. You are to concede, he says, for redevancen— •od this without exacting r*. ,dy money. What •Cainistha one penalty imposed? It is explicitly •Uted in the edict. The Attorney General shall prosecute jou, it says to the seigniors, and shall con- iscate your land, if you fail to settle; and if you refuse to concede at redevajic's and insist on cash, wo permit the habitants to implead you. What was to be done thea ? Was the land to be granted at a fixed rate ? Not at all : we know the king knew there was no fiiod rate, for that had been brought under his n >- tice. It was to be granted by the Governor and In- teadant acting conjointly, and this for the Crown— aot for the Seignior— and it was to be so granted at Ae rates of the other lands in the seigniory. These were vague words, which might do when the officers of « despotic master had but to refer to him on all oc- easiona to find out his will ; but are altogether too uncertain for any legal purpose now. The fact was, the seigniors were by law at liberty to do what they pleased. If any seignior indued, instead of refusing to grant, asked some perfectly enormous rate of rent, that might probably have been taken, accordingfo the npirit of the law, for a refusal. I admit so much. And the Governor and Intendant might then have granted the land, that is to say, if really the arret were ever acted upon. But let me repeat ; the arret did not make it illegal to dispose of land otherwise than by grant It ccns. It was only in case upon ap- plication the seignior refused to grant, that the law became applicable, and his land grantable by the Go- Ternor and Intendant ; in whioh case the dues were to be paid to the crown and not to Inni. But this arret was coupled with another ; and how kit that ihi\,ii who aro so anxious toenforoe the first do not V ish to enforce the second also ? This second arret acts forth, that the King had been informed the ceruitaircs did not live on their grants j and his Majesty then orders that in case the C' nsitaire did not settle and clear, on a simple certificate from tho cur^ and captain of the cote that such and such a man was not keeping hearth andhomc,thelntendant alona was to escheat the land. Thus any number of cm- sitaircH not keeping hearth and home could be, on &n ex 'i)arte proceeding, ejected from their holding. This arret, unlike the other, wa^ frequently acted upon. Sometimes the Ir.tendant was kind and grant- ed delay ; at others, however, he escheated the land without any delay at all, according to the terms of the arret. Tho first of these laws, note, was not nearly so stringent as the other. When tho seignio; was in fault, it required the Governor and Intendant to bring him to justice. When {haccnsitaire failed to fulfil tho conditions of his grant, nothing w&» required but the authority of the Intendant, acting upon the certificate of the cure and the captain. This legislation of 1711 was all that really took place on the representations of M. Krndot. Tho extracts which I find in the same volume, taken from letters bearing date in Nov. 1711 and MariJi 1710, I pass over without remark, because they have no reference to nnythmg in controversy here. The latter merely relates to the making of a rent roll of the domain of the crown. Next comes an extract, a single sentence, having reference to the censive of the Island of Montreal, a purely local matter ; and this again is followed by a sentence from another document, which also calls for no present remark. The two documents next following (on pages 15 to 18 of the same volume) are, however, documents of much importance. They purport to be, the one a minute of the proceedings, or of part of the proceed- ings had at a sitting of tlie Conaeil de la Marine, (the Board of Direction of what was then the French Co- lonial Office) held on the 9th of May, 1717,— and tha other a copy of a draft of an arret which at that sit- ting that Board resolved to recommend to the Kin^;. It would seem from these papers, that Begon, then the Intendant, (for Raudot had ceased to be so,) had made some representations, which unfortunately aro not printed, on a variety of matters j and that he had cimplained greatly of a number of practices charac* terised by him as abusive. Among other such mat- ters, he seems to have represented that a droit de rctrait was sometimes stipulated, so sweeping in its range as to give the seignior a right of pre-emption of all manner of articles that his censitaire might have to sell. I remark particularly on the onerous char- acter of some of thet-o chartres, because they show tha absurdity of tho assertion frequently made, that oner- ous demands have been made by tho seigniors only since the cession of the country. It is common to say that everything which is obnoxious connected with the tenure took its rise after the cession. Here, however, we find that long before that date, clauses much more stringent and odious than any that now prevail were complained of, and were even not re- formed by those in authority. I say they were not reformed ; because though the Council of the Marine passed a vote to set all these matters right, yet the arret contemplated by that vote was never passed into law. It was a document which had the sanction of the Count de Toulouse, Admiral of France, and of Marshal D'Estrees— doubtless a very good sailor and a very good soldier—and it was worthy of their naval and military education. A number of its clauses are so singularly contrary to every notion of 12 kw. tkflt it h KnpAwibia it oobM aT«r har* b«ea pre- nnlgattd with th« (oree of Uw. In truth it ncrcr WM an a^rel— ttdraft of an arret it bmt have been, a» Afrct it ncTcr did or eoald become. One thing is worthj of reotark, that neither in this minnte of the Connci) of the Marine, nor in this drnft, nor in the arrttt of Marlj, itf tlmre any proposal to interfere with any past contr»cti4, or crcn ti> rcRnlate futur" contracts, in so far as the amounts <>r kinds of due:* stipniated or to be fitipul>ited (various as these were known to be) were in rjuestion, Thare is no trace of the notion of acting on the proposal of iM. Kauviot, tj (tqaalixe the rate uf WiS ct renica all over the conn- That this dra!t of an aff«t, such as it was, nercr really so much as had th m Kayal sanction, is ft fjct still further evidanccd by the next lixtra.it to ho found in the same volimie. This extnot ia short, and yet most be rraJ two or throe time«, in ordor to ascertain whut it means. It is part of an in itructioii from the Kiii^ to the than Governor un'l lutiiulAnt, ai\d (rendered into Engliih as eJoscly as I can render it; reads thus : — '* * * Tha Kttantion thty are fopay to " the execution of the arret of the 6th July. 1711. " which rennit'jB to the donoain of the Crown the *' seigniories that are not inhabited, and to the oblijs; " ing of seigniors who have lands for concession " within the limits of their seii?nioricj to concede " them, is very nef:iissary for the se;t]ement and " augmentation of tha coliny, Tiiey are to prevent " the seifiniors from receiving cash for tho lands ** which they concede in standing wood, it not beinR i " just that they lihojld sell property on whioh they " have laid out no money, and which is give'i U) " them only to jfot it settled, (qui tie kar tstdoiini " que pour fair e habitcr.") These words show what the Crown niciiit hy tho ^■■irretJ of Mar'./. Here is tha Crov.n':; own gloss on the Crown's arrets They were tJ prevent the seigniors fro:n taking money fn;- LkI; 2jn:tdyd «,» bois de bout, N( t thnt ihera was a fixed rate at ■whicn lands wm-i^ io be granted ; Ijut ih.it money was not to be taken for wild land. Mo-^t surely, such • letter as this proves that the! draft pripn-^cd hy tlie Minute of 1717 could never have iiasoed into law: bad that been the case, these instructions cobIJ never bave been written. The next i;jitract, of dale of 1719 is only interest- ing as sbowinj? that in 1 7 1 6 the crown sent orders to tlM colony to cease granting seigniories. The dos patch conveying these orders is not printed ; though onriously enough, an nnintercsting extract from a letter of the same date appears in this collection. I pass on, then, to s(H:alt of the terms of the grants a:ide after the date of the arrets of Marly. I have already stated, and any body who will study the grants before the date of those arrets, may ▼erify the assertion, that none of those grants imply tfce 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, tg d« certain things — there is no obligation to sob gratrt tit all. Coming to the grants since that period, 1 find that thev are ninety in number, of which thirfy-fivo are not here to bo counted, as being cither not in Canada, or as revoked, or for other causes. Of the fifty-five which remain, fifty-one have been printed, and I have procured copies of three others ; so that wa have the t«r«i of Mjrrw, tiA tkfr cover soma 3,000,000 of arpeats, ar t)irae-laBt)w w all the land grinted enjiif. In I71(S, as I have stated, thekinf; prohibited tW granting of more sciKniorics in Canada. And ffta the date of the pnblication of the arrtta of Marly, t» that of the enforcement of this order, five seigniurtet only were gr.-tnted. One of these, granted in 17 1 3^ seems never to bave been taken po!-BCS«ion of. A»« other, of the same date, was that of an angmcntatioa of Beia'il. Sin,;ularly enough, these are printed aa embodying i;n unintelligiblo combination of tho j6«f and ctnsive tenures ; the grants purporting to be <» Jief, and yet subjjct to a nmninal cent, I srppoeo this a cljiioal cr;or. I!utthi« is of no conseqnonc* for my present argument. All I need observe as to ■ tl:('se grants is, that like tho oldor grarts, they coR' tain no elaus^} hinting at any obligation to sub-grant. The other three grants of this period, howeyer, do contain cla.isc, which if saucti-ined hy the crown, v/oald have changed groatly the clia'.'acter of the gr,^nts, ascompared with prcceoding granlB. The first of these in order of time was tho grant, in 1713, of a sm.;ll augmentation of a seigniory in the district of Quebec ; and is printed n p. t!i of the Ist of the volumes lai.l before this Hon. House This grant p.-ovides that the grantee shall concede the said landa at rcikoi-tnces of twenty sola unJ a ckapon Jot each srpent of front by 40 in depth, and six aemiert <>{ cens. without power to insert in tho said conces- nions either any sums of moivey or any other charge than that of themeretitleofrty a brovot of confirmation, of which one of my | Majesty be known." 'I'he rocit^is in this document ients has furnished nic with a copy) as many n.s i sit forth tbst Lepage had been liiniboriiig estinsively, eleven anterior grants abiding new clur.ses not to be I nnd ni.aniifacturing pilch and tar, snd was under Ibund in the origioal.->, for the pisrposy of rcservin;.; cintract-i for the public service, and in fict wanted Bond for forts, Ac. ; but not putiing in this clause, — more, land and especially more wood-land for all the«e •ad this too, noiwith.staiiding the 6/Yiv< in question, I I'urpose.s. Whereupon, inste:'.d of granting him l^rports to set fcrtli in detail nil the condition.s under twhich thcKrantees were to hold. Again, five years iater, in 17IC. I have ascertained that he did preci.se '^ the same thing in two other brcvcti of connrmaiion 'Oien granted, for cDncoisiDus originally made in 170?, •f the two iSeigniories of HoiiliinKCs t id Vaudreuil. 0«o of these last mentioned documents is prii:ted in Ae papers laid bctore thi.i House, 'i'he other I have 'froourud, !■ one word, tho case is oleer. that the insertion «f tkiselausc by the Governor and Intendintiu these Area instaace.s, was their own unauthorized act — tUetated by a wish on their part to carry out a policy ^feontrol over the Siii^nior.-t, far beyond any thinn amrraitted by tho arrdtt of Marly, or even conteni- gUUd by the King ; and that the King iu fact never «r«a aanetioned it in any way. I aay memer ; and the next step in the proof of this -ii to be found in the circumstances of the next gr.ed in the latter yMr ; but in 1727 He^iu !karnfiiiiaiid lloequsrt, Goveniorand Intendant, took •a themselves to make this small made to the Ursu- ttses of Three Kivers. it was a very peculiar one, M»d contained the obligation to concede ; but in the .freaent ea.se the r.tte varies aKain.and becomes twen- ty sous and a c.tpon for one arpi^nt by — neither forty •or thirty — but, this time, twenty arpents of dcpib. I hAvethe eonHrmaitin, furnished me by the Seigni<» Mwea, and it does not contain tl.is clause. Like the •ther confirmations I have ninntioned, it pnrport.s to wcite all the grantees' obligations ; but the Kirij< vould not put into his grant what his Governor and latendiuit had put there upon this head. fet again, in 17-'9, the King made a grant of hia »VB Bore oaotioa — the tJrst grant of the fc^eigniory of more, they say tliat luHving seiu the conces.sionoftho Seigniory of Terrebonne, waiting ll'ti Majesty'j order, they grant him this permission No title (»f Terrelionne nor of its augmentations appears in any nf the volumes laid before Parliament. 1 acppoiM the re;»ister i.s iu a ststo of confusion, arid that fronj some difficulty of this kind it has hsjjponed that neither the extraordinarily liberal f;rant of Terre- bimne, nor the actual title of t!iij augm i.tation, now called Dosplaines, liave been pe.bii.shed. I haro, iiowever, obtained a copy of tlio King's giant there- after made in 17.^1 ; end 1 find that, after the Mma recitals, it concluded thus : — " Having respect to which, ftnd wisliing t» fHcili ate to the said Siour Lop.tgo de St. Ciairs the mcHiis of «Ui>tainii)g cstHhli.Hhmcnts which cannot be cthtr than useful for the colony, Ilia Majesty ha.s conceded, given, and msiJe over A territory of two league.^ to he taken in uticoa- reded lands, in the depth and on all the Croat ijfthos.-iid Seigniory of Terrehoni;e, to enjoj for himself, his heirs, or aynnt cnust, a.s his and tlioir own property, {cc>mi7ie dc propre) and th ' w:th tliH sauie rights that lelui^^ to his said 8eit nister at home, and is in these terms : — "' During our late stay in Montreal, complaind were made by several individuals, that the sei- gniors refused to give them grants in their sei'- gniories, under variou's pretexts, although bound by the arret of tlie Council of State of the month of July 1711, to make such grants to the habitans who may require them, under provi- sion in the event of refusal, that such habitans may apply to the governors and intendants of the country, who are commanded by His Ma- jesty to grant to the said habitans the lands required by them. We have the honor to re- port, that upon this subject a variety of abuses have been introduced, as well by the seigniors as by ih'j Jiabitajis, which are equally contrary to tlie ar>c^ of the Council of State of 1711, and the settlement of the colony, bo'^ic sei- gniors have reserved considerable dou^ains within their seigniories ; and under the pretext that these Ir.nds form part of their domain, iiavc refused to concede the lands therein whick have I '.en demanded by way of grants, believ- ing they were entitled to sell, and have in fact sold, the same. We have also observed, that in the parti. ion of seigniories among co-heirs, such of ihem as have not the right of jurisdic- tion {droit de justice) or the principal manor- house, ceasing to hold themselves out as the seigniors of the fief, refuse to grant to th« habitans the lands which are required of them within the portion which hab accrued to them, and deem themselves to be without the opera- tion of (he arret, which requires seigniors to concede, and on the contrary believe themsetvM entitled to sell the lands which they grant. " Another abuse has arisen on the part of tha habitans, who having the right of obtaining concessions from the seigniors, after having 8« obtained lands, shortly after sell them to others, the efTect of which has been to establish a sort of trade [une sortc d'agiot) in the country, injuriont to the colony, and not furthering the serMement and cultivation of lands, but tending to foster habits of indolence among the habiiaiis ; a prac- tice to which the seigniors are not averseinasmuck as lods ct venies accrue to tiiem on the sale of auoh lands ; in this way a number of grantees do not reside upon their grants, and the seigniors art not anxious to reunite them to their domains, and when such re-union is demanded, those who are in possession cannot recover back the suoiic of money paid by them. " We are therefore of opinion that by way of maintaining the arrets of the Council of St»te of 1711, it would be well to render aootheir, prohibiting seignior8> and all othck* proprietbn^ I it I 15 t way of lt»te bt DOther, rietbrif fro*: lelling wild land, on any pretext nrhiitsoe? er ; onder penalty ai;ainst ttie seigniors a*i(i proprietors of all lands so sold, of the nullity of the deeds of sale, the rentitation of ihe price thereof, and deprivation of all right o!' property in the said lands, which should be^ dt pkin droit reunited to the King's domain, aad reconceded, by us, in his name. " Itis truethnt generally the seibrlors con- cede, or pretend (o concede, their lands, gratis ; hut those who evade the provisions of the Arret oftne Council take means to obtain payment of the value of ';uch lands, without its appearing apon the face of tho deed ; either by obtaining obligations from the grantees for sums pretended to be due them for other considerations, or under color of some mconsiderable clearing withont cultivation, or under ptetence of natural prairie land found upon the grant. " If it had pleased M. liocquart to adjudicate upon all the contestations arising from the abuses whicii we have had tlic honor to bring nnder your notice, he would have disturbed a iiamber of families and havo given occasion to Considerable litigation. Ho has deemed that the grantees, not having taken advp-tige of the provisions of the arrets of the Council which were favorable to them, it was altogether at- tributable to tliem if they have paid sums of money for the grants made to them, and that they are not entitled to recover them back, ac- cording to the maiim of law : Volenti nan fit injuria. •' We believe that it is for the advantage both of the seigniors and of the /iaiitan.^, to- allow matters to remain in their present state, await- ing the arret of the Council which we have the honor to request ; and not to alter the practice which has heretofore obtained. It would ne- vertheless appear to us equitable, that in the event of clearing: or natural prairie land being found, the seigniors should derive the advan- tiiga thereof, and that in the grants made by them such clearings and prairie lands should be indicated, as well as the amoucts 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 neces- ftity of asking for grants of land in the 'bird and fourth ranges, to supply this want. The ge- nerality of the habilans are not aware of the provisions of the arret of the Council touching them in relation to this matter. Mr. Hocqaart has caused some of the principal among them to be informed upon the subject, without causing publication anew of the arret. Before doing ■0, he awaits the orders which we shall receive from you during the ensuing year." It is only jnstice to Messrii. Beauharnois and Hoc- «piart to observe, that in all thic they do not propose to destroy existing contracts ; but adhere to the Mind principle, volenti nonfit injuria. The propo- sal tbey made was to render the sale of wild lands a kind of orime, to be visited by the penalties of ■■!•' ity, and so fortk. As to the arret of Marly, their understanding of it was moat manifestly jnst that which I have Riven to it— nothing more nor !«••. li told the habitant, if the deignior refused liim, to go before the Governor and Intendant, and get from them a conceiision ; but it still left him in this posi- tion, that if he chose to go and make a contract with the seii;nior, he must put up with the eonaequene«. So understanding, they go on to recommend that for the past everything should be left as it was, and the* propose the new law, which they think should b« made about wild lands. — If any proof were wanting that the arret of Marly had fallen into desuetude, this letter would furnish it \ for i., would appear that in 1730, it was so little known, that Hocqnart had to explain its provisions to some of the chief habitOMB — a mode of procedure, perhaps less open to com- ment 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, in'the aama volume, a letter, or rather extract from a letter, ad- dressed by the minister to Nfcssrs. Uuauharnois and Hocquart, reminding them that they had been some- what remiss in the matter of the making up of th« I'opi.er Terrier, or Crown Kent Roll of the Colony, and expressing ;k disposition to resort to a line of policy not vf.ry closely corresponding with that re- commended by them. In their answer to this, of October, 1731 , the next in order of the extracts under review, these gentle- men excuse themselvi's lor not having forwarded the terrier, and say that the fault was not theirs, but that of some of the vassals of the Crown ; and they go on to say that what they bad suggested might be done withont waiting for this ; adding—" In respect of th« '' concessions accorded to the habitans by the seig- '' niors, 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 pro- " nouuced the reunion of more than 200 concessions " to the domain of the seignior, in default ofth» " habitans observing the duty of keeping hearth and " home" From which we see that those ministers of the crown — who had never acted on the first arrSf' of 1711, who had never granted a seignior's land to a censitaire — had acted on the second arret of th« same year in 200 cases. The first arret, in f|»ct, never was acted on as law ; the second was constantly so acted on. The first representations of Raudot in 1707 aad 1708, as we have seen, were scarcely, if at all, acted upon, in the framing of the arrets of Marly in 1711 ; but these representations of 1 730 b> Ueauharnois and Hoc|uart, renewed in 1731, produced full fruit in the arret of 1732, which was passed in exact accordance with their suggestions. This arret declares that there shall be a new comminatory publication re*. pecting the escheating of lands ; and then, to prevent the double abuse of sales of wild land by seignior or censitaire, there is a farther declaration that all salts of land en bois debout shall be nail, that the porchaso money paid shall be recoverable from the party taking ii, and that the land so sold shall be escheated to the crown. The fact, that it was ncoesBary in 1732 for the King to legislate in this manner for I ad- mit the power of the King to legislate— proves that in 171 1 he had not so legislated. True, he bad thesi said that the seignoirs should concede, or their laadl might be conceded, to their loss ; but he did aot aiy le tf Ch«7 l(>«»t cMCHide b«t icM, the MleihiU bo r.u11. 1[6 Benl/ garea MrUin remedy ia eue of refurtl. ■•w, he proni«Ig«tM a now pennltjr; which WMtbn «B-wnec»(ion of dto hied to hit* (iouiaio, in order to j^aish the one oiTonce, which he dnAir'x) to put an «ad to, that ii to •.iy, tha valtt uf wild land It ttaeau that a notion prevailed in thoso dayn, that if on* allowed land tu be si'ld vitiiout its being first cicAre'J, it was loii likely aftcmards to be clear- ad, andthat the odiot uaaiiv-^t tiie valo of land en bo!s ie bout, was thus likuly to pronioto the cluaranra of tlio couotiy. I pass to a further piece of evidence, still taiuU iag the same w.iy ; ami coan.'cted with thu grant ot Argontcuil. The do.-iiincnt 1 am about tu citi; w not one of tiioie l:uJ b .f >re I'arlii'.ment. I cannot even eiy wliether or uot it is to ii • found in the Provincial Arcliivts, But I have a copy of it, autiicnticatcd by llic; signature of M. lloc- JTiart ; which the piOi>.-i(tor of that Seij^niory oiieofiny cliontt,) has jJacud iu my hands. Aud from il I am about to quote. ArgPQteiii! waa first (granted (or rather, tho eraul o( it was first jiroinisKl) by two shoil juifltrumcntij, one aigncd by Diiflif-Rneau. (the then Inteadant) ia IMO, the olLer by the ConHc- do Vrontenac, (then Governor) iu IGS'i ; both of which are piiritwl i.u ihu first of the volumes laid 'before I'arliaiuent — on pa;j;(i37;i. By thctK;, ihose ftinctionaries proii;iscd it to t!)o Sifiur D'Ailleboust to be held cnji/, vilh all droi:>i dc ju^H'-f attach- ed thereto, and absoiutnly without condition or rescrvo. — so8oona.s the Kiii;^ s!;ould see fit tu ailow the country al >ve Montreal to be pettlwl. — The Seigniory, as i .T'ed ha.dly say, i'S on the Ottawa ; next above that of tiio Laky cf Two IfoutitaiiiS, which latter was aft-irwards granted to tho Seminary of Monlrc'il, in 1717, and 1818, as before observed. For a number of yeara, eettlement on the Otta- a bctwi^cn their respective Sei- Siioriofl. 'l^e Seminary centuiMl.'d that thi? line ould be run in isuch a way as to cut ofT a larje ^ji«rt.of the tract which Madame D'Ailieboust de- «red to paBs<>s8. Tho dUpute wa« hrou;;ht for \tial before the C iniurioualy afftut tbe " propitiation of the taith. You wiU take " care to explain to her the intentions of His Ma- " jesly,and will not fail to (five effect to theoi." Thus it appears tliat .Mad. D'Ailieboust wa« t» have thi» seigniory on certain coutlitions ; but the«e did not ohlij^e her to ^rant on any particul ir teriM. It apj>ears tliat the report w-nt horn.", that tlua lady had began to clear upon her seigniory ; aai the Kin;; replied that she was to continue to do so, i>ut vva.s not to draw to hf.-r Het'lcrnrriit thi? Indiaa. tride — so counteracting her no!.''\bour8' eflbria in spiritual matliir-t. Thi.s, and m, mure, the Kin|; insisted on. His Governor. and Intecdanl hail beea inserting in tiwir grant.s llu- clau,;' requiring' con • Ct'ssion at fix^'d raten. Th? Kin^ iiul not do»e so, — did not do .so in this case. In the meantimij, Mef-.'ir.s. Ueaiihirnois and ITocquart had be;.run to put inlo their p.ants anew I'Liuse — thefoHovviu'j,-: — "iUjchatj;^* * defairt ijirrerp areilics conditio rut dann leu concessions qu'U ff.ru d w; liH'tnr.if.nt aux csns et rcn!es el rid&- vanci's accoutv Mites pur arpcnt dc tene dcfronl tur qnaajiite d>' profjndeur, '' — " on condition • • »f e:insiuy; to b;; insffted the liki' coiiditions, " (tliifl clause follows several cliic-rs re.jniring the 'j^rantee to pro'ii^rve oak limber, give notice of mines, keep hearth and ham •, alKm rDad.j, and so t".>ith) on condition, I say of the Seignior's causing the like charges to be inserted " in ihecoiicessionj ho fhall mnke to his ten ints at th" cens ti rtnte$ and dues accu.' tonu'd p'>r arpent of kiid of front by 40 of depth. " This clause is va^'ue — ambiguou.v even ; may W reod to mean, that the Rratitets shall sub-grant at ■iorne ccns accoutumf^ ; or as merely meaoing, that waen they ahall so suli-^raxit, thef are to put into their deeds certain clauses, heJd necessary on grounds of public policy. Beau- harnois aud Hocfjuart may have m.ajit to put upon ittha former moaning. But that i«" aot tfae question. The clause Ls to be read and made out, as it stands ; not explained into a something else, by any considerations from without. Limiting the terms ol a grant, and this in derogation of t^ common law, the rule of law ia clear, — that aof ambiguity iu it is to be interpreted favorably to- wards the grantee, restiictivoly of tiie limitation lo be imposed. Vague as it thus li, this clause was put by Me.ssrs. Beauharnois and Hocquart, and their iuc- censors as Governors and Intendants here, into 46 of the subsisting grants of Seigniories in Lower Canada. Three other grants, tliose of Grande iiiviere in 1750, au augmentation of Aivicre Quelle in the same year, and an fiugmentation of Uiinouski in 1751,— ihou^'h granted here by the Governor and I'Uendant, — do col contain it, but iiniply dfclaie the grantees to hold on tlie teria* of their older grants. Another grant, during the same period, was made by the Ki;ig himself; the second grant of ihe Seigniory of Beauharuoi;!, ia 1750; and ihif a'so contains no such clause, but answers word for word to the earlier gjant •f 172;), already remarked upon. So that, bstween 17J1 aiid 17ovi, thcr.. were these 4 grants iu Loww I 1717 " oth;;r8 '' vet) H "edlh;i "of th "the s, " for thi '* and he B i— 17 iT r» . •« t Vf uyir*} Aile of tke &if*-i had been done, how attentively (he matter was canvassed how explicitly the King had put it of record ou the occasion, that lie would not do that which his servants in the colony were 80 bent on getting done. To come, 'hen, to the first document of the se- ries, on page 25 of volume 4. It is a despatch from the minister (his name not given) to Messi-s. Beauharnois and Hocquart, and is dated the 6th May, 1734. It opens thus ; — " M l'Abb6 Couturier, Superior-general of the Seminary of Saint Sulpice, has applied for the confirmation of the grant which you made bv order of the King, to that Seminary, on the 26th Septemb'.'r of last yeaf ; but he at the same time prays that it may please His Majes- ty to explain some clauses inserted in that grant as well as in that which was made in 1717 to the same Seminary, and even lo change othc'rs agreeably to the draught of a patent {bra- vet) w.iich he has [iresented me. He has ask- ed that the boundary line fixed for the Seigniory of th • Sjminary may be altered, and that the sime direction be iaid down for it as foi that of ttie sieuis do Langloiserie and Petit , and he has represented the necessity of doing so B " to avoid the contestations which might arise " from diversity of the directions of the lines of " those seigniories ; that the clause which obliges " the Seminary to preserve the oak timber fit for " thvi building of the King's ships may be res- " tricteJ to such oak trees as may be found on the " parts of the seigniory which the ecclesiastics of " the Seminary niav reserve for the principal ma- " nor house or domain, a restriction which he " has represented as necessary for the settlement " of the private grants to be made by the Sem- "inary; that the clause may be suppressed " which provides the penalty of re-union to the " King's domain, in default ot actual settlement " ((I'itablir feu d lUu) within the year and day, " on the grant ; that the clause may also be sup- "y ssod which imports (^0)7e) that the private " grants shall be made at the usual cens et rentes " K)r each arpeiit ill front by forty arpents in " depth ; and as the same clause is found in the " grant of 1717, he asks that it may likewise be " cancelled ; that the clause may also be sup- " pressed, as useless, which jnovides that the " beaches be left free to all fisliers ; that the " clans ! be likewise struck out which declares " that if the King should hereafter want any parts " of the land for the purpose of erecting thereon " forts, batteries, parade grounds, magazines and " public works, His Majestv may take them with- " out being held to any indemnification ; and he " has remarked that this clause had been in- " serted in the grant of 1717, hut 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 ecclesi- " astics of Saint Sulpice shall hold their lands of " His Majesty, subject to the usual rights and dues " m"y be interpreted and restricted to simple le- " alty and homage at each new reign, releasing " the Seminary, whi.-n need may be, from all dues " of amortissement, prtstation d'liommes vivunts '' and mour,in's and others, by reason of these " grants ; and finally that there may be added a " discharge from the obligation to build a stone '' forth on the land granted in 1717, and an exten- " sion of that land to six le.ign.- in depth." On all these demands, the report of the Govern- or and Intendant is called for ; and it is added that a copy of the draft prepared by the Seminary, and of their observations in support of it, ace 'm- pany the (U^sjia'.ch. It is unfortunate, to say the least, — with a view to the right understanding of the whole matt t, — that these all important documents are not printed. 1 have tried to obtain a copy of them in another quarter ; but have not yet succeeded. The answer ot Beauharnois and Hocquart, how- ever, is printed, au long : Much of it is of no im- mediate importance, as regards our present sub- ject. I cite, therefore, from it, lor the present^ only such parts as are. The clause of the grant threatening re-union f) the domain, in default of settlement, — 1 may ob- serve en passant, is mist explicitly declared to be comminatory. The Governor and Intendant (p. 30.) in so many words say, " the Ecclesiastics of " the Seminary need give themselves no uneasi- " iiess about it.'' As to the clause more particularly under dis- cassion. I translate their language as exactly as I can. It is this : — 18 " iVe do not know the reasoni which induced " bii MtijeBty to fix, in the Letters Patent (6rft?(>0 •• on7l8, the depth of the grants at 40 arpents, " and the amount of the cen$ et rentes. It was " thought it would be agreeable to his intentions " to insert only, in that of 1783 ; at the usual " ccn$, rentes and dues, for each arpent of land in •' fionl by 40 arpents in depth." " The observation on the justice and equity of " proportioning the rentes and dues to the extent " of the propeity, whrch may be more valuable " in oiif place than another, merits consideration. " and it appears to us that his Majesty might con- " tent himself with merely having inseited m the « new patent to be issued; at the usual cens, " rentes and dues, for each arpent of land." " This vague expression will leave the Semi- " nary tree to grant more or less in depth and at " more or less cen? et rentes in proportion to the •' extent of the lands, and even to their value. " And as the usages aie different in almost every " seigniory, the term 'usual' will only restrain " the ecclesiastics from grantin£, ordinarily, less " than twenty arpents in depth, and from exact- " ing higher rentes than twenty sous for every ar- " pent in superficies, and tne capon or its equiva- " lent in wheat. With regard to the cens, as it is " a very trifling due, which has been presumed to " be eatabliihed only to mark the direct sei^nioiy, "and which nrries with il tods et ventes, ihe usu- " al amount in CanAtla is from six deniers up to " one sou for each arpent in front by the whole •'depihofthe particular grants, whatever that " depih may be." " The statement in the memorial, that the seig- " niors in Canada, as every \^ here else, have the " light to grant, dcens et rentes, whatever quan- " tity of land and subject to whatever charges "ihey please, is not coiiect as to .he chuigts ; the " uniform practicj being to grant at the charges " above explained, or more frequently below "them. II the right alleged were admited, it " misiht be abused by makmg grants, which ought " to be, as it were, gratuitous, 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 fixed eith- er. It was 'he then Governor and Intendant, vi ho did all that was done in that direction. The King had nierely relaxed the rigor of their clause ; so showing it to have been ibeirs, not his. In every other instance, so far as we can find, he had utter- ly ignored the clause. Nor can one help noticing the frank admission made, that the Ecclesiastics were right in their proposition, thatol right there ought not to be any requirement made for the subgranting of lots of any prescribed depth, or at any fixed rate. True, it is said that the Ecclesiastics were wrong in as- serting (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 thai is said against this pro- position (one as clear in law as man could state) is— what t Why, that a " uniform practice" ob- tained to jjrant at certain charges, " or more fre- uu^ntly below them." Uuniform practice, often* er departed from than followed ! Jndouhtedly, it was usual to grant at low rat»"; j for land was a drug and chean. Bui •'v- '»-T.g proves there was no " uniform pr i stipulating any particular rate ; this p. . »/ despatch, no less than every other on the subject, that has been printed. But, says the ("espatch, ttie proposed " ex- pression vaifue" of a customary rent per arpent, will leave the .Seminary free to do a good deal. " jIs the Jisatfes are different in almost every Seigniory," all it will do will be to restrain the Seminary from " ordinarily" granting less than 20 arpents, or charging more than so much. The sequitur is hardly clear, and the word " ordinar- il'j" is hardly without a certain significance of meaning. VVas the restriction meant to be abso- lute, or was it not 1 U not, it was properly no restriction at all. For, how say what rule is to be followed as to its application 1 Yet, that it was not understood as inteded to be absolute, even by this Governor and Intendant, we have their own written words to show. The answer of the minister is to be found in tho despatch enclosing the 6r«y«< of confirmation, as granted by the King in 1735, — and which des- patch is the next locument given us in the same volume. The clauses of it, in reference to the matters I am presently discussing, are as fol- lows : — " The obligation of keeping hearth and home " within the year on pain of re-union to the do- " mam, has been expressed in it, agreeably to " your observation ; but this clause is not to be " strictly enforced, and His Majesty relies on " your prudence in this respect. " He has been pleased to change the clause " which you had inserted in your grant, and " which is also found in the grant of the Lake of " Two Mountains, with respect to the cens «( " ren<« of the private grants, and, in conformity " with your advice on this article, it has only " been declared in the brevet that these grants " shall be made subject to the usual cens, rente* " and dues lor each arpent of land." It is said here, the King has, as to this latter c'ause, issued his Letters Patent in terms of your suggestion. But, however courteous and accor- dant with diplomatic form, such a statement nnay have been, it happens not to have been the fact. The extract in question from this instrument has been printed in the appendix of the Commissioners Report (though, by the way, not quite cor- rectly) and it is not in the terms indicated by this despatch. I have obtained a copy of the do- cument ; and the clause in question in truth, runs thus : — "And on condition * * ofcausingtobeinser- " ted like conditions in the particular concessions '• which they will make to their tenants, at the " cens, rentes et redevances per arpent of land, usu- " alii the neighboring seigniories, regard had to " the quality hnd situation of the heritages at ihe " time of the particular concessions ; which also " His Majesty wills to be observed for the lands & " heritages of the seigtiiory of the Lake of Two " Mountains, belonging to the said ecclesiastics, '■ notwithstanding the fixing of the said cern et ^^ redevances, and of the quantity of land in each I I mv' 19 or more fre- actict. often* idoubtedly, it ' land wai a proves there pulatiiig any itch, no less lat has been posed " ex- per arpent, I good deal. almost every restrain the int; less than much. The rd " or dinar' gnificance of it to be abso- I properly no hat rule ia to Yet, that it ibsoiute, even e have their e found in tha tirmation, as d which des- in the same rence to the are as fol- th and home )n to the do- agreeably to is not to be ty relies on ihe clause ir grant, and the Lake of the cens et a conformity it has only these grants cens, rente* this latter terms of your and accor- atement may en the fact, stiument has jmmissioners quite cor- indicated by )y of the do- ll truth, runs igto be inser- ■ concessions ants, at the of land,usu- l^«)v/ had to ittigcs at the which also r the lands & >ake of Two ecclesiastics, said cens et land in each « concession set forth in the said brevet of one thous- " and seven hundred and eighteen, to which His " Majesty has derogated.' The " txpremon uu?u«," then, of Messrs. Beauhariiois and Hocquart, is not taken. It is made still more vague. I shuuld tuther say, it is made clear and uiimistakeable. The King had been told that hardly any two Seigniories foflovv- ed like rules. He qnafifies the term " usual" {aranUumii) by express reference to neighbour- ing Seigniories, presumably varying in this re- spect. He will not at all limit the measure of the lots to be granted. He will not allude to any usdal 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 nil this, but in effect, to bid the Seminary make their own bargains, as occasion served. The limit really put upon them ; what was it more than this, that if they should charge too hi";h rates, they were to be liable to suit he- fore tne Governor and Intcndant. But if any man agreed with them as to any rate, — was it meant to let him on the one hand keep the land, and on the other get relieved from payment 1 The law does not — common sense and justice do not — lightly pronounce the nullity of a contract A Contract must be co;i/ra 6o«os ;ftor«s, or explicitly prohibited by law on pain of nullity ; or it is not null. He who has waived his right, oy making a contract that he need not have made, such con- tract not being by law null, must abide the re- sult. Volenti nonjit injuria. So ruled this very Governor and Intcndant, in regard to this very matter. One nullity only, they hail thcniyolvos created, — tne nullity of all sales of wild uind. by whomsoever made. Is even that nullity of force now 1 Is wild land escheated to the Crown, de plein droit, whenever sold '! — Contracts never threatened with nullity, by anything purporting to read as law, are they null 'i Or rather — for that is the question here raised — are they to be maintained as valid contracts against the grantor, 80 as to vest the land in the grantee ; and yet set aside as null in favor of the grantee, so a"» to free him from his obligation to pay, as he has volun- tarily promised 1 But to return. I have said, there were 45 grants in Lower Canada, made from 1731 to 1760, and having in them (as issued here) this ambi- gious clause. We have seen how the King, en pltine connaissance de cause, saw fit to deal with one of them. How did he deal with the rest 1 In the second of the volumes laid before Parlia- ment, at page 23t), will be found his brevet of ra; tilication of one— that of Nouvelle Lon^'ieuil- bearing date in 1735, some months after that of the augmentation of Fwo Mountains above ad- verted to. It is a brevet drawn in the style, and as nearly as m^y be in the words, of those of somewhat earlier dates, of which 1 have made mention ; and like them, purports to recite au long the obligations of the grantee. Bu* it does not contain this clause. Precisely as in former cases the King had left out he unambisfuous clause then put in by his officers, — so now, did he leave out this. And this case is no exception to the rule. I have been able to obtain in all, 12 other brevets of ratification of ditTerent grants out of this total num- ber of 15 ; and in every one of them the case is the same. They are those of Rigaud, granted in 1733; an augmentation of Berthier, in 1734; Noyan, in 173.5; the augmentation of Lavaltrie, in 173.5; D'Ailleboiit, in 1737; De Ramsay, in 1710; the augmentation of Monnoir, in 1740; the augmentation of Sorel. in 1740; the augmenta- tion of Lanoraie and Dautrd, in 1740; St. Hya- cinthe, in 1711); Bleury, in 1751 ; and Sabrevois, in 1751. I have not been able to find one, — 1 do not, cannot believe there is one — that does not omit the clause. 1 have shown, then, — to recount the facts as they stand, from the day of the date of the arrets of Marly, — that on that day the King certainly ratified II grants, in terms that imposed new charges on several of the grantees, but without in- serting any clause at all bearing ou this matter ; that in 1716, he did the same thing as regarded two more grants ; that in the same year he rati- fied the grant of MiUe Isles, (issued here by his lieutenants with the clause of the fixed rate,) in terms not imposing that clause on the grantee ; that in 1718, he .naterially relaxed its stringency, when ratifying the grant of Two Mountains ; that in 1729, he granted Beauharnois, without it ; that in 1731, he granted the augmentation of Terre- bonne, 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 Argeiiteuil, with no such restriction; that in 1733, he ratified the LTrsulines' grant of an augmentation of Maskinonge. again omitting the clause of the fixed rate^ that in 1735. in the case of the augmentation of Two J*' ntains, he cut down almost to nothing the nt ver ambiguous clause by that time contrived b^ his lieutenants, as to usual rates, and wholly struck out from the Two Mountains grant of 1718, the stricter clause then left in that grant ; that in 13 other instances, ranging from 1733 to 1751, (being all the other in- stances as to which I have been able to find out what he did with their grants,) he uniformly omitted this ambiguous clause of his Canadian servants' insertion ; and that in 1750, he issued his second grant of Beauharnois, — still, as ever, omitting it. Is there, can there be, a doubt of the fact, that neither the one clause nor the other ever in truth had th<> lloyal sanction ? Or can there be a doubt that nei'nerthe Governors and Intendants here, nor yet the king and his ministers in France, ever took the a/reis of Marly, to have fixed a rate of cens— much less to have made contracts for any higher ratt* illegal and null 1 The clauses were put in, to enable the Governor and Intendant to exercise a power known and felt not to hwe been given them by the arre/s of Marly. Their inser- tion was never sanctioned. The king never meant to grant ih^m — never did grant them— the power they thus sought to get. One other point, in reference to this correspond- ence of 1734-5 about the grant of the augmenta- tion of Two Mountains, may call for a word of re- mark. The Seminary, we have seen, complain- ed of the clause requiring them to leave the beach- es free with the exception of such as they should require for their own fishpries. In their letter, Messrs. Beauharnois and Hocquart had entered into some explanations as to the droit de peche in Canada, as to which I may have to speak hereaf- 20 I ter J and had in cuanled terrm recommpinled the mainlrnance of thia clauHc. Bui what anivvpr did the King make 1 " The clauie concemmif " the freedom of the beaches has been omiltt.-d " (rttranchh.) You have obicrved that this " clause, Hccordintr to the conMruotion \nn unon it *' in Ciinnda, only meant that the seigniors should " be bound to grant their tenatila tlie ri^ht of fi*h- " ing oppo!;ht to have, but at the same time, on the other hand, that the king would not in this in- stance force the seignior t" grant it. He is to bo al- lowed freely lo dispose of it, to get whatever he can for it. The rotation of seignior and censitaire on all these matters, was to remain matter of mere cen- tral t. So much for the king's views and conduct in rela- tion to these matters. Wliat as to those of his Go- Ternors and Intendants there ? Let me ob.siirvn only, by the way. that this (pro- perly speaking) is by no means the real question in t' J case The king's officers here acted only in his p .me and by his authority. It was their fashion, of 0;.ur had just seen a valuable pine wood in the Seigniory of Sorel, coolly declared the same to bo a reserve for thu supply of His Maje.sty's navy; for- bade Soiirnior and irimtairea from cutting any part of it under heavy penalties; and aiipointcd a resident guardian to lake care they were enforced. The title of the .Seigniory contained no reserve of piiio timber. And the wood in qucHtion was no property of tho Crown. Tho consciiuences to the parties ofany in- fringement of the prohibilicn, might have been un- pleasant ; as it was probably ordained with the full intention of enforcing it lint it was still not law. Its illegal enforcement by an arbitrary ruler, once out of thu quesliim, there was no need for its repeal. What, then, in truth, as to the.se Seigniorial ques- tions, was the Jurisprudence (so tospeik) establishd by tho decisions aii'l general course of the Governor, Intendants and f'ourts of Law in (.'anada? Ho far as regarded the reunion to the Crown do- main, of Seigniories which the grantees failed to clear, it i* obvious to remark thai there was practically no need of an arret of Marly to authorize it. If, after the Crown hud granted a Seigniory, the grantee did not, by himself or others, take steps to si ttle on it, he might fairly enough bo taken not to hr.ve accepted tho grant. The Crown, under such circumstances, was always held to have full power to take back it, unaccepted gift. Lung before 1711, numbers os grants wcru undoubtedly so resumed ; some withf some without, the formality of an express arret or decree to that effect. All that tho first of the two arrets ot Marly did in that behalf, was to point out the precso nuxlo of proceduie to bo thereafter fol- lowed, for tho escheat of such lands. Tho Attorney General was to prosecute ; and the Governor and Intendant, acting conjointly as the special and ex- traordinary tribunal alone competent to take cogni- zance of the matter, upon due aseertainuient of the facts, and by ordonnanies in due form, were to pro- nounce the escheat. The .Military man, head of the Executive, and the Civilian, head of the Judiciary, Police and Finance Departments, must concur in every such Ordon- nance ; or it could not be msde. I find trace, by the way, of but one such Ordonnnnce, as ever really promuluated ; of date as late as 1741, for the escheat of 20 grants. Further incidental evidence of the habitually comminatory chaiacter of these legislative arrets of the French King. Again, there was no need of the second of the arrets of viarly, toauthorize the re-union to the do- main of a Seignior, ofany lot of land not cleared and and settled on by the cencttotre. Equally with the Seiirnior, a cemitaire not settling on hi.^ grant waa held not to have practically taken it. Besides, in all- II II II II ii (I II II II II II \>f which ha d» ana called I'ania, itry, to be (laves, hor Orilonnanco, I.) duclarcd that il otiicrwiae than AoiV nover was the land did not, He Ordonnancea w, thnufih plac- er really had the f Ilocqiiart, by f the 2nd of the t.) aftpr rpoiting no wood in the he Hame to bo a ly'9 navy ; for- utting any part infcd a ruitidcnt ■ced. The title of pino timber, property of tho rties of any in- liavo been iin- 1 with the full » still not law. ry ruler, once I for itH repeal, signiorial qucs- Bik) estabhshd the Governor, ada ? he Crown do- fuik'd to clear, practically no ! it. If, after lie grantee did ■0 8( ttle on it, hr.ve accepted lircuniKtances, I take back it, I numbers os ; some withf ress arret or rat of the two i to point out hereafter fol- I'he Attorney fovernor and lecial and ex- o take cogni- niuent of the were to pro- live, and the and Finance uch Ordon- id trace, by » ever really r the escheat r-nce of ihe le legiHlative icond of tho to the do- uleared and f with the grant was lilies, in all 21 but the earliest grants of Ssigniories, the Crown had ■yiteiflstically bound the Seignior to enforce real- denoe by the espraM term* of hia contract with hi* ttiib-granttes. And beyond doubt, clauses to that effect were always put into the grunts to censiOnreii, with that view ; and whenever appealed to (as they often were) wore at all periods rigidly enough en- forced. All that this rtrrei of Marly had to do, was to provide a short and easy mode of enforcing this obligation. And it did so, most decidedly. No Eroseoution in thiscaxe by an Attorney General, or efore a Governor and Intendant who must agree in judgment in order to act at all. Properly speaking, no prosecution at all ; for tho party com|ilaincd of need not be (sometimes, was not) no much as sum- moned. On tho mere certificate of tho CurS and Captain of tho Cfdc, tho Intondunt—acting alone, ■umuiarily and with no appeal from liis decision — was to do all the justice that that kind of case was held to need. But for the other of tho three procedures contem- plated by these arrets, the case was different. It was an extraordinary procedure. The (.'rown had made grants ; the lands granted were the seignior'!),— and ho alone, of course, could subgraiit, or in anyway alienate them. Here, tho Crown in cfTcct said to luch seignior — the seignior holding, tlie while, under the Crown's grant— you are to make a certain kind of contract for the alienation of this liinil of yours, whenever you are called on so to do ; and if you re- fuse, the Crown (on complaint of tho lufused party) will do it in spite of you, and in so doing will by tlio way practically escheat — not your vvliolo grant — but that particular part of it which in each such case may so bo dealt with. Till, by its arret here in question, the Crown had said this, it Was impossible it could have done it. Before 1712, there could have been no enforcement of a de.icription of control over the seigniors, which to that date had never been so much as threatened. After 1712, then, how did the case stand ? How far did successive Governors and Intondaiits act upon this power to sub-grant in the contingency siipi)o.sed ? Or how far may they not have transcended it — have assumed, without ri;^lit, the f;ir larger ))ower of eon trol sought by lliudot, as we have seen, in 1707 and 1708, but never granted by the King '? I lind mention in the 2d Volume of tho old Ji'J//^ tD Ordonnanccs (|). xxxiii) o( anarrct, which, I am aware, has been qiiotod as an instance of the exercise ofthese larger powers. It is of date of 1710, the 29th of May, a f(!w months only after tho enregistration in Canada, of the arrds of Marly ; and it is given as an arret of tho Conscit Sapcrieur de Quebec. It is thus printed : — " Arret importing regulation, (portani rcr/Jement,) " which prohibits tho Sieur Duehesnay from con- cinling any village lots (e/»j>Zat'ewe;//^) in tho vil- lage (boiirff) of Fargy de Heauport, at any higher rate of dues {a plus hauttitre et redcvances) than 1 sol of ecus for each arpcn'', and a capon-fowl (pmdetpret a chaponiier) of seigniorial rent, as on " grant of land, and irredeemable ; to which cens et rentes are reduced all the concessions made to hahitans in the said village, by tho said Sieur Du- ehesnay and his predecessors, seigniors of Beau- port " But if any proposition can be clear, this must be, — that this arret had not in law any — the very slightest —sanction from, or reference to the arrets of Marly. They dalp^ated no fanctioa or authotity, to tha Cb*- teil Superitur. 1'hey contain no word of village lots, nor of oonoessions already made to hvbitant, nor of any lowering of any rates fixed by contract, nor indeed of interference with contracts of any sort. Nor had il, indeed, any the slightest sanction inlaw at all. It was as mere an interference with property and rights, as plainly contrary to law, as were tha recognitions of slavery, and the reservation of tha Borol pine-wood, to which I a few momenta since referred. Let ine aild, that I can lliul nothing to show '^ ever to have been drawn into precedent. It stand* alone. There is no other printed, in the least like it. That the Intendant of that day, M. Begon, having just received the arrds of Marly, should have been inclined to stretch his authority for beyond their purview, may eu.sily be accounted ioT, That neither he nor Ins successors should have followed up an arret of thiti kind, by others like it, — is a fact of I'ur more vvtight and signifi* ciince. An arret, or rather ordonnaiire, of M. Bcgon, of the 2Stli of June 1721, (printed on p. 6H of tho 2(1 Vol. laid before I'ailiaineii) njay perhaps be tliouglil to bear such releri'iice to the subject, as hcrij to cull for remark. Hut it is niaiiifesliy what lawyers call an arret de circunUuiue, a jiiJgment III a special case, and th.it not iitall the ease con- templated by thi.' arret of Marly. There was here no refusal to concede ; on the contrary, the Seignior impleaded hud long before grunted " bil- liis (le cunceasion ,'''' writlen pioinisi.'s of grant, only just not ni form to serve the grantees as an alwolute title to their lands. The dis))uto was merely us to the terms in which the notarial deeds of grant were to be drawn up, the Seignior wish- ing to put into them more onerous terms than the censii\tires were willing to accept. The Inten- dant was called on to inlerprt-t and enforce a eou- liact made — the coiitrael establisiied by these written promises; was not actirg under iha arret of Marly at all. Tlie Dei'enthmt, with reason good, began by excepting to his jurisdiction, on the double grounds, — liist, that the case was ono lor the ordinary Courts and not for the e.Ktraor- dinary cognizance of the Inlendunt, — and second- ly, thiit the intendant had exi)re».seil a strong opi- nion against him. The Intendant by the recitals of the oi-donnanre, sf l.s I'orth liis own decision that tho matter, as coming within the scope of the (//•rc< ofMarly, was matter for decision by no other Judge tlian himself, and that ho had plainly told the 'Defendant that he meant to enforce that amt in the case ; and he then pioceeils to fine the Defendant 5U Livrcs— no small sum in those days— for his impertinence in daring to question his, tho liitendant's authority and impartiality! Whereupon, still not without reason, fearing, I suppose, a heavier fine if he should venture to plead his cause any more, the defendant walked out of court under protest; and the Intendant's judgment went ca-;»(ir/e. Of course, it went for the plaintiffs. But of necessity, it was not at all in terms of the arret of Marly. The defendant is ordered to pass deeds on certain terms— the terms no doabt.on whichthe Intendant meant to say they ought to be pasted ; but failing the defendant so to do within the month of delay allowed, what was the alternative 1 " This delay expired," says i 22 the judgment, "we do hereby nuthorize the nlain- " tiff* to apply to the Marquu of Vaud; "iil and •' to ourselves, demanding the grant of the said *• lands in the name of His Majesty, upon the same " charges and conditions, conformably to the said *' arret o{ the ConseU d'Etat of His Majesty, of " the 6th July 1711 ; and this ordonnance shall be " executed, notwithstanding appeal, but without ♦' prejudice thereto." So that here we have of record the all obvious truth that so far the procedure had not been under the arret of Marly. If it had been, the Intendant so far from being Judge of it, to the exclusion of all others, could not have been the Judge of it at all ; hut could only have sat upon it with the Gover- nor. The Defendant may not have been right. His pretensions, as they appear to have been put forth, were harsh, and probably not warranted by any proper interpretation of the billets he had given ; but certainly, his Judge was not right, and showed none loo much of the Judicial spirit in dealing with the case. And — which is here the whole point — the case had no real reference to the arret of Marly. The next case I (ind, at all seeming to bear <"i this matter, is an Ordonnance of the Governor and Intendant of the 1 3th of October of the same year 1721, — printed on p. 72 of the same volume. — Here, those functionaries undoubtedly did in the King's name grant to a certain Widow Petit, a tract of land within the cenHve of the Fief St. Ignace belonging to the Ladies of the Motel Dieu of Quebec. But it is expressly recited that this ■was done — not under the arret of Marly, — but nnder an arret of the Conseil d'Etat du Roy of date o\ the 2nd of June, 1720, — a special arret evidently predicated on special circumstances of controversy between the parlies. By this arret Vl\3 King in Council had declared the widow Petit to be entitled to a deed of this particular land ; end had ordered the Governor and Intendant to yrant it to her, if the Ladies of the Hotel Dieu should persist in their resistance to her claim. — They did persist.— The urgent but vain efforts of the Plaintiff to bring them to a compliance are set forth at great length ; and the grant was made accordingly. It is the one only grant in the King's name, that has been lound, — made by a Governor and Intendant within the ccnsive of a granted Seigniory. There is no other printed,— I venture to say, no other of record. It is a fact not wholly wilhout 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 nowhere— save in his despatches- to be found. A third Ordonnance of an Intendant, M. Du- puy, rendered Nov. 16, 1727, (p. 180 of the same volume) has been cited, as containing an impor- tant reference to this general subject. It will be found, however, that it really has none at all. The case is one of those, to which I have already made some reference,— turning wholly on the question of the date at which debts incurred during the currency of the monnaie des cartes were to be paid. Certain censitaries of Bellechasse naturally wanted to pay their dues, accrued and accruing under deeds which had been passed during that period m certain terms, subject to the reduction of a fourth, to convert them, as they claimed, in- to money of France. The Seignior as naturally wanted to be paid without such reduction. In . part of his argument, which is given at great length as part of the recital of the Ordonnance, he urges that of all kinds of debts. Seigniorial dues ought not lightly to be taken to come within th« range of the reduction in question, " because," says he, " the King having willed m order to the " more prompt settlement of the country that the " Seigniors here should grant their lands at a low " price, (donnassent les terres d has prix,) there " IS hardly any land granted at more than" so much, and much that is granted far lower, though covered with wood, and so forth. Add to which, says he, rushing his argument further, low as these iheir dues are, the Seigniors have heavy burthens to bear, for all sorts of objects of public utility ; and it is absurd to suppose that the King means them to form an order of noblesse here, as he surely does, burthened thus, and yet subject to a cutting down of dues so much loo light for such ends. But all this proves nothing ; except that this gentleman saw fit to urge this argument in a case where it really had no legal bearing. Good or bad, as fact or argument, it is his mere state- ment made for a special purpose under peculiar circumstances. The judgment did not turn upon it, — and neither embodies nor at all indicates any expression of the Intendand's notions (supposing even them to signify) as to the matter. A fourth Ordonnance has been cited ; rendered by M. Hocquarton the 23rd of January 1738, and which is to be found on p.l70 of the same volume, the Ordonnance in fact which was printed during the last Session of Parliament at Toronto, as bear- ing en this question. But, like the others I have remarked upon, it will be found to have really nothing to do with it. Several /tu6trix,) there than" so iver, though Id to which, ler, low as ave heavy ts of public it the King sse here, as it subject to ght for such sxcept that 3;ument in a ring. Good mere state- ler peculiar it turn upon idicates any (supposing r. 1 ; rendered ry 1738, and ime volume, nted during nto, as bear- thers I have have really isofGaudar- jnioress, the ant of lands 'titles in due Ihem, {litres mr a conci- the titles of ^" Her re- ling to pass le new lands en immedi- said Seigni- gniorial dues ' to indicate uriaux qu^il he Plaintiffs manifestly ite between first range and that )ff in rear made objec- lecide. The Jul reported, avor of the ing — and in cord in the 1 be " at the ty, to wit : and one sol tnd a capon Seip;nioress, y His Majes- 'hat ? There 1b hothing to show. It may have been, that such orders had been sent out, in reference to grants en censive, within the domain of the Crown ; though the fact is at least noticeable here, that these rates are not those which, as we know from other do- cuments now published, were fixed for grants in the censives of the Crown, about the same period. To this consideration I shall have to advert pre- sently ; anti 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 censive grants within the Crown domain ; and. that the case, as an authoritative decision amounts to nothing, because — as I have said — it purports to have been on this ))oint a mere judgment by consent. For aught we know, the Seignioress may gained by it, may have got higher rates than those of her older grants. Nothing in the case indicates that they were lower. One more ordonnance I cite in this connexion ; not as making against my view, (for I have fouiul none that do,) but as the one other, which 1 have found, indicative of any material control exercised by an Intendant over the terms of a grant a cens made by a Seignior. It is another ordonnance of JVI. Hocquart. under date of the 23rd of Fe- bruary 1748, and is to be found at p. 202 of the same volume. In this case, the Fabrique of Ber- thier impleaded the Seignioress, to obtain from her a notarial deed to a lot held by them for the last 38 years, under a 6i//ef de concession. The Defendant declared her willingness to pass the deed, but demanded to be allowed to insert in it certain clauses, — one to the effect that the land, if ever alienated by the Fabrique, should become chargeable in her favor with a certain rate o/ dues, stated by her to be that of the other lands in her Seigniory, — and some other clauses of a kind not likely to have been contemplated at the time of the granting of the billet de concession. To these latter clauses the Fabrique gave no consent ; and the Intendant, rightly no doubt, disallowed them, — and directed the passing of a deed that should merely stipulate for payment of dues by any party acquiring from the Fabrique. The rate named in the judgment is not identical with that proposed by the Seignioress. as the ratu usual in her Seignio- ry ; the former being partly payable in capons, and the latter in wheat; and no reason is gi^'en for the variance. Indeed, it reads as though made by inadvertence, lie this, however, as it tviay, so much at least is clear, that this ordonnance, equal- ly with the others I have been commenting on, is not a case ever so remotely coming within the purview of the enactments of the urrct.J of Marly. I say more. I dare not undertake to weary this Honorable House with comments on every Ordonnance and ^drret in detail ; thus over and over again to prove a negative. But this I must say, after thus remarking on these cases — the few I have found, of a tenor which has seemed to me to call for notice here, — that I have most careful- ly studied every prin'ed Edit, Arret and Or- donnance laid before this Honorable House in connection with this whole subject, and every other that I have been able to find ; that I have arranged them all in order of date ; have read and re-read them all, so arranged ; have made a written abstract of them all ; and, though I will not »zy that the Edit, Arret or Ordonnance does not exist, that shows this precedure 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 effort made I have not found it, I do firmly believe that it is nowhere to be found. And not only do I find no prool of this procedure under this arret of Marly having ever been car- ried out. 1 fail equally to find a case of the en- forcement of the after flrre< of 1732, which pro- hibited 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 arret of Mar- ly had so fallen '\n\o desuetude , is further to some extent evidenced by the tenor of the Declaration of the French King, oi the year 1743, to be found on pai^e 230 of the second volume so often quoted. By that Declaration the King undertook to regu- late the course to be followed by the Governor and Intendant, and in proceedings had before them, in regard to the matter of the granting and and escheating of land. But there is not in it, nor yet in the King's subsequent Declaration of 1747 (p. 172 of the third volume laid before Parlia- ment) explanatory of it, — any reference to this peculiar procedure (most of all requiring regula- tion, one would say, if then a precedure really ever taken) for the quasi escheat of land part of a granted Seigniory, and its grant by the Crown \.o\he hubilant, prosecutor in the cause. It was not a pioi'edure seriously thought about. I would not be misunderstood. My position is not, that the Governors and Intendants let the Seigniors alone. They let no one alone. They were foi- manging everything and everybody ; for not allovving wild land to be sold by any one ; for not i.tting 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 no- tion of the extent or kind of interference they were inclined to resort to, — they interpreted them more or less to be what they were not. Some of 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 Inten- ilant in any given case, under color of liis notions of those arrets, or representations as to what was the King's pleasure, may have had more or less of edect atone lime or another, in leading Seigniors to concede at lower rates or under less onerous charg- es and reserves than they otherwise would have done. The same kind of consideration, no doubt, inlluenced other classes of men as to other mat- ters. But such intluL'nce was no iutluence 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 far trom 3,000,000 of arpents of the land now so held, had been granted en fief, under those of the titles of that period which still remain in force ; and perhaps twice that quan- tity had in all been granted under all the titles 'M m- 24 then extant. The French population, to that date, la stated not to have amounted to 2,500 souls. At a low calculation, the extent of the grants must have averaged something like 10,000 arpents for every family. In J 712, when the ar- rets of Marly were promulgated, the grants en fief covered more than 7,300,000 of arpents ; for a population (Indians excluded") of hardly 22,000 souls ; some 1,800 arpents at least on the average for every family. And in 1760, the grants were 10,000,000 of arpents, to a population of about 59,000; orstill, about 1,000 arpents to a family. Could land bear anything but a low price under such circumstances ? And these figures all un- derstate the fact. For they are given without re- ference to the large grants made beyond the pre- sent limits of Lower Canada, and where the pop* ulation bore a still smaller proportion to the ex- tent of the land granted than it did in Lower Ca- nada. But low (as compared with present values) as the ruling rates always were in Lower Canada during these periods, they were never uniform, or fixed bv any law or rule. It would have been contrary to all precedent, to every notion of law antecedently prevailing in the country, iftliey had been. No doubt, the doctrine will be found laid down in most of the books, that the ceiis was in its nature a small redcvunce or due — nominal, so to speak — imposed merely in recognition of the Seignior's superiority, and mainly valuable as establishing his right to the mutation tine, known under the Custom of Paris as lodset veiites. And from tnis fact, some have thought and spoken, as though it was of the nature of the of the fixed yearly Seigniorial dues, upon land granted en ceimve, to be low and nom- inal. But It is forgotten by tljose who draw this mistalcen nifercnce, that the doctrine 1 have re- ferred to is by these feudist writers laid down, only with reterenco to the ceiis, properly so called, as contra-distinguished lioni the rentes which also tormed part— and by very far the larger part --olthese yearly dues. Even, however, as to the cens, in France, there was no kind of unifor- mity ; and lor the rnotint and character ot the rentes, no limit whatever con be assigned to their variations. The total anio.int, in Franco, of a beignior's yearly dues accruing on his lands grant- ed en censive, were as variant as ilio caprice of local customs, and special contracts, possibly could make them ; and as a general rule they were ar.ythmg but low. Indeed, it has been clear y established as matter of historical resaaich. that the mis itself was not in its origin a nominal Clue, >ut(as the very word, cens, census, imports) a real and onerous tribuie-llxed in money and m the course ot aires ren.i..,-.,! \i,r\a i„ amount. by n nson no merely of advance ,n money prices, but also ot the enormous dejireciations of the cur- rency that loi-;ome centuries dis..race.l the history already quoted, and the weight of whose authoi- iLrrl I ''^ "''itters cannot he questioned, tTu.Z '7'^^ establishing this historical fact m his .nh volume, lays it down (p. 121) " nue «' 13T// /'"f " ''' Proportionne au Urituble pi odiiit (le la chose acceufee, Ion veritabies buux d cens; ct rsffi'on a fait de nan pas des ventes .. „„, „, , «' 9"'i' 'I'est point " «L'- '"""1' ""', '"''P^' redcvance fictive et ho- non/ique ; that the cens has always been pro- sous tc nom de buux d cens " f ortioned to the veritable product of the estata " granted d cens, when the parties have made " real grants d cens, and not sales disguised under " that name, and that it is not in its nature a mere " fictitious, honorific due." The cens et rentes here in question, no less than the ctns et rentes of old subsisting in France under our Custom of Pa- ris, bear, and ever have borne, this legal charac- ter ; are, as to amount and kind, wbatevtr the parties may have agreed to make them ; repre- sent the consideration of the grant, in terms of the contract establishing the grant. To turn to facts. The terms of a few grants en censive, made be- fore 1663, are to be found in the 1st of the volumes laid before Parliament. In 1639, for instance, (see p. 351) a piece of land close to Quebec was grant- ed at 1 denier, the twelfth part of a halfpenny of our currency, per arpent. In 1647 (p.l2) a tract of a quarter of a league by a league in depth, was granted at the same rate : but with the proviso that such rate per arpent was to be paid "lorsqu^il " sera en valtur seulement," "as it shall be brought "into cultivation only," — a curious passing indica- tion of the idea then entertained of the value of the twelfth part of the coin now passing as a half- penny. Two years after, in 1649, (p. 382) land at Three Rivers was granted at the enhanced rate of 3 deniers per arpent ; and in the same year (p. 344) two months latter, other land, to be taken at Three Rivers or Quebec, was granted at the fur- ther advance of 6 deniers per arpent. These grants and some others like them, are grants by the Cotnj)aiiy of New France. Almost at the same date, in 1618, I find men- tion in the recitals of an Arret, (vol. II, p. 176 Edits et Ordonnances of 180ti) of a grant d cens by a Seignior, at the rate of 12 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 rciruH, or right of pre-emption by the Seignior, incase of sale of the land by the grantee. 1 was desirous to have had it in my power to lay liefoie this House something like a statement of the extent of range of the variations observable at different periods ami indifferent parts ot the Province; hut they are sj almost inliriite, that I soon lelt it to be quite impossible, with the very little time I was able to devote to this par- ticular branch of research. A friend to whom I applied a few days since to aid me in this res- pect was able to spend.a very short time in an examination of a limited number of old grants in the vaults of the Piothonotaiy's olFue at Mont- real. Taking the first in alphabetic order, of the names of the notaries of the old time, wbose mi- nutes were there deposited— that of one AdhtSmar, — and striking on the year 1674, as remote enough to fall within M. Raudol's times o( innocence, he examined iis many of that Notary's deeds as the shoit time he could give to the matter allowed. From their slate and style of writing he was un- able to examine many in that time ; but all he could examine showed an almost incredible ab- sence of rule or usage, as well at that date as at 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 (tor it is a certain fact) beyond the possibili- !.5iU 25 }f the estate have made guised under lature a mere ns et rentes I et rentes of istom of Pa- sgal charac- ^hatevtr the lem ; repre- I terms of the ve, made be- the volumes nstance, (sea c was grant- lalfpenny of 'p.l2)atract n depth, was the proviso aid "loi'squ^il ill be brought ssing indica- he value of ng as a half- p. 382) land ihaiiced rate ame year (p. I be taken at 1 at the fur- These grants rants by the I find men- II, p. 176 inttf ceiis by r aipent of h a quart of ed, by the ) stipulated emption by nd by the ' power to statement ubservable larls ol' the tiite, that I th the very this par- te whom I in this res- time ill an Id grants in i at Mont- rder, of the wliose mi- Adhemar, lole enough locence, he eeils as the I- allowed, he was un- but all he redibie ab- date as at of dues or the clauses reafter — so ablish this e possibili- ty of doubt, by ascertaiaini; and laying before the public the terms of a sufficient number of these all-varying deedb. For the moment, I must be content to cite four ; the first four that my friend chanced to examine, and of which I hold authenticated copies i i my hands- They are ol dates falling within 8 consecutive days of Sep- tember, 1674; the first, being of the 5th — the second, 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 Batiscan ; the third is of a grant either in Batiscan or Cap de la Magdeleine. Either Seigniory helot ged to the Jesuit fathers ; pre- sumably not the most exacting, or irregular in procedure, of the Seigniors of the time. The first of these grants is one of 40 arpents by 40; 160') square 3' pents. The yearly dues are BtAted at 30 Livres Toiiniois, 10 capons, and 10 deniers (ten twelf;.is of a half-penn,) of ccns. Valuing the capons at 13 sols a piece— the money rate per arpent is something over half a so/— something over a farthing of our currency. The second of these grants is of 1 arnents by ai unstated depth ; the rate, 1 sol Tour'nois per arpent, 1 capon per 20 arpents, and 4 deniers (J ofa half-penny) of cens: in all— upon the same valuation of the capon— about 1 J so/s per arpent, more than treble that of the grant of the week before. The third is of 2 arpents by 40 ; the rate, as though the parties had not liked ever twice to do the same thirg in the same way, or on like terms is stated at halfaiioisseouof wheat, 2 capons and 2 deniers o[ ccns. The fourth— a grant of 60 feet square near the mill of Batiscan— is for 3 Liurcs Tournois, and 1 denier of cens; a rate of more than 1 so/ for every foot of Iront by 60 feet of depth. 0. ar.tities-amuMtE— rate— styles of rate- could sc:ircely have varried more. Again, to take another kind of proof, and from another and later time. In 1707 and 1708, we find Mr. Rauilnt complaining of the extraordinary diversity everywhere prevallill^' ; sending home a table to exhibit it ; and proposing, by way of remedy (p. H of Vol. 4, as laid before this House) the adoption as a rule of universal application, of the rate of '• a sol of rc.tc, n falling to suffered to it want, nor St wilderness 1749 (seep. Is et Ordon- Ord"nnanct ation of the have land in tie in town, granted in if the town, )m they shall intry, to de- t General of ( sent back, an shall re- \s controlled, he weight of . The Seig- :h us it was, t; to a" In- , is as though ! of his pro- ntaire's, nor ; their rights e law. — For a return, in towards the 'i old system under which they were (is I hare shown) the comparatively favored class. I recall that past, as it was, only that I may protest on their behalf against the noonstrous error and injus- tice of any attempt now to subject them (and them only) to Its influence,, .or rather to the influence of a system of arbitrary, despotic interference, other and far worse than that past ever inflicted on their predecessors, — such as may not, cannot he made to affect any class whatever, where (as with us) the law alike and equally protects all classes, all property, all rights. I proceed to another portion of my argument. 1 have said, that the proposition on which alone this Bill can for an instant be defendsd, is the proposition, that the Seigniors of Lower Canada are not truly proprietors, but trustees bound to concede at some low rate, and under few or no conditions or restrictions; and that this alleged trustee capacity of theirs, if it be the fact, must arise either from something in the tenor of tbe antecedent liw of France, as interpretative of their position ; or from something done when theii' grants made, or afterwards, down to the ces- sion of this councry to the British Crown ; or from something done since that cession. Unless I am much mistaken, I have shown, that alike the tenor of the old law, the terms of their grants, the action, legislative and otherwise, of the French Crown, and the whole course and character of the jurisprudence (so to speak) of the country, while under the French Crown, establish in terms the contrary proposition ; prove that, to the date of the cession, they not only were proprietors, but were even the proprietor who held by the higher and more perfect and favored tenure, — were in fact emphatically the proprietors of the favored class. Passing now to the period which has elapsed since the cession of the country to the British Crown, I believe that my further propo- position, that nothing has been done since the cession to take from them their proprietor quality, does not rei,'iire much argument for its support. I shall easily show that the history of this whole matter since the cession , is such, as to sufHce of itself to assure to them that quality, with ail its incidents, were it even doubtful (as it is not) how far it attached to them before. But before occupying myself with that part of my subject, I perhaps ought to offer some remarks on a point which may 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 I'ar what has been said and written since the cession, can be suffered to affect our in- ferences on this matter, drawn from what we have before us of all that was said and written previously; how far, in a word, the expiessed opinions of men of mark since the cession, can g > to prove the existence before that date, of a state of things in Canada, different from that which I have (as I think) established, by tha examina- tion of the grants, arrets, ordonnanees, despatches and other documents of all kinds, of date before tbe cession. The truth is, that the tradition (so to speak) against which I argue, is attributable to state- ments made since the cession of the country. It has grown up since that period, and it may not be uninterestaig to show how it has grown up ; and that it has done so in a manner and under cir- cumstances to att£ch no importance whatever to it. At first sight, indeed, this must seem tolerc- bly obvious ; for it is a maxim of law, and of com- mon sense too, that the best evidence alone is to be taken. If it bethe fact, that from the tenor of the law of France, of the Seignior's grants, direct from the French King or through his officers in the colony, and the legislation and jurisprudence of the country under the French Crown, one has to assign to the Seigniors ofLower Canada the quali- ty of proprietors — such as 1 have shown it to at- tach to them ; if this, I say, be proved by the best —the only real evidence we can obtain ; it is not neccsary to show how any counter-impression may or may not have since grown up. But, evident as this is, I may be allowed, I trust, in consideration of the extent to which it has latterly prevailed, to offer some observations by way of accounting for its origin and progress. Perhaps there never was a country in so pecu- liarly false a position with respect to its traditions ofits own past, as Lower Canada. On the occa- sion of ihp cession, the high officers who had ad- ministered the government left the country ; with them they took its ronfidential archives; with them went, too, 1 lie superior judicial functionaries, and a large proportion of the men of higher rank and better education ; leaving behind them com- paratively few who were not of the less educated class, or at any rate of the class less capable of preserving in the country a correct tradition as- to the spirit of its old institutions. New rulers arrived in the Province, not speaking the tongue of those amongst whom they came, and whom they had to govern ; wholly strangers to their laws, usages, and modes of thought and feeling ; bringing with them the maxims and opinions of the na'ion of all others the least resembling that which had first settled Canada ; not at all the men to seize — or even to try to seize — the peculi- arities of ihe lav. they came to supersede ; whe- ther as to the prerogative of the French Crown, the jonfnsion of legislative, judicial and executive functions pervading its whole system, the un- certain and purely comminatory character habit- ually attaching to it, or the vast and complex detail of laws and rights of property subsisting un- der it. All this, I say, they were not likely to under- stand, or make the effort to understand. The law of England, their law, one need hard- ly observe, is essentially a law of unwritten cus- tom ; and most of all, perhaps, with regard to that particular description of English real proper- ty, which answered most nearly to what they her«^ found subsisting as land held en censive. In England, oopyhc'd properly is almost entirely— perhaps I should say, is entirely and essentially — governed by unwritten customs peculiar lo the different manors and holdings. The very term " custom" as they found it in use here, was a term calculated to mislead thom. The Custom of Paris here established, and the other customs locally prevalent in France, were not unwritten customs, like those of an English manor, or the great, general body of unwritten custom known as the common law of England. They were written documents, enacted by authority, — sta- tutes, in English phrase, not customs. Indeed, in Canada there was even less cf.c-^ ,it to unwritten usage, as regarded the terms ci the 28 1)1 !l'. holdingofcenstvc lands, than in 'iJ France. In France, undoubtedly, in many cases, rates of cent and other dues could only be 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 antiquity to peer into; here every thing was new, had had its origin within a date that could be reached ; every grant d cens was by an authentic instrument, the pre- cise tenor of which could be ascertained ; or if in particular instances it happened that this was not the case, it was merely that the parties had trusted each other's faith, and so entered into a contract which they might possibly have some practical diffici'lty in proving and enforcing to the letter; but tne terms of which were yet to be ascertained and enforced in all such cases, aa well as might be, in common course of law. All this, 1 repeat, was not calculated to lead to a very corrc^ct (iist impression, on the part of these new rulers of this country. Inclined naturally to see in the Canadian Scij^inory an English manor, and in its ccnsitaires a body of English copyhold- ers, it was not possible for them to avoid attaching too much weight to the notion of customary rates and obligations, and too little to the terms of the actual contracts. They hardly could realize how entirely in Canada the existence of these written laws and written contracts dispensed with — pre- cluded one might say — reference to unwritten cus- tom in this class of cases. And this was not all. If they had been ever so disposed to study Canadian law, — as they were not, they would have found it hard to do so to much purpose. Books of sucli law were not plen- ty to their hands; not of inviting bulk, or slyler or language. Of the model treatises on French law, to which at the present day lawyers of all countries resort, by far tiie greater part did not then exist. What books there were, were the older, larger, in every sense heavier vohnrics, ot an earlier age. They were little likely to find readers in men, inclined neither to fancy their lan- guage nor their law. Tiie Provincial records, moreover, as I have said, were in the same tongue, in a hand-writing not easy 10 decipher, imperfect, in disorder; and there were few or no persons in the country, like- ly 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 Couits of law, were military Courts, made up of soldior-judges ; and as, no doubt, 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 be much of a lawyer. And even this was not all, ' These Courts thus set to declare and adr,:inister the law of the lands were s'it to declare and administer they knew not what law. The general impression with the new, English ruling class, of course was, that a great deal of 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 in some way or other to be worked up, was to be the rule. It was under these circumstances that an arret, the only one of the kind which I fined cited, as making against my clients' interests, and of which I have now to speak, was rendered. I refer to the arret of the 20th of April 1762, printed on the last page of the fourth of the volumes laid before this Honorable House. It purports to be taken fmm the Register of arrets of the Military Coun- cil of jMontreal ; "uch Council composed of Col- onel Haldimand, the Baron de Mnnster, and Cap- tains Prevot and Wharton ; four highly respec- table oliicers of Her Majesty's army, I have no doubt. And it reads thus : — " Between the sieur Jean Baptiste Le Due , " seignior of Isle Perrot, appellant from the sen- " tence of the Militia Court (Chambre rfc? Milices) " of Pointe-Claire, of the fifteenth March last, of the one part ; — " And Joseph Hunaut, an inhabi ant of Isle " Perrot aforesaid, Respondent of the other part ;— " Having seen the sentence appealed from, by " which the said sieur Le Due is adjudged (con- " damni) to receive in future the lents of ihe " land which the Respondent holds in his seignio- " ry at the rate of thirty sols a-ytar and half a " tiiinot of wheat, the court not having the power " to amend any of the clauses contained in the " deed of concession executed before Maitre Le- " pailleur notary, on the 5th Aug, 1718 ; the peti- " tion of appeal presented to this Council by the " said sieu ^e T re, 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; and " having heard the paities ; — " The Council, convinced that the clause in- " serted in the said deed, which binds the lessee " (prcneiir) to pay yearly half a minot of wheat " and ten kols for euch arpent, is an error of the " notary, the usual rate at which lands are granted " in this counlry bcin^ one sol for each arpent in "superficies and half a minot of wheat for each " arpent infro'.d by twenty in depth, orders that in " future the rents of the land in question shall be " paid at the ra'e of fifty-four, so/.s in money and a " minot and a h^lf of wheat a-year." Now, what is this judgment worth 1 Four gentlemen, not lawyers, reverse asentence which every lawyer must say was perfectly sound and right; and condemn a censitairc, viho by his wtiilen contiact was to pay thirty so/sand 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 extraoidinary reason, had appealed ; and, what is more extraordinary, the court maintnin- ed the appeal, — not, be it observed, reducing the rent but raising it, so as actually to give the Seig- nior more than his written contract established in his favor. And they did this, not on proof of cir- cumstances, showing the deed to have been wrong, as they took it to be ; but merely on the ground of the supposed existence of a cutomary rate so fixed and invariable as of itself to prove the clause of the deed an error. And this, in a deed of 44 years staiding! And though, 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 Governors and Intendants themselves testifying. And though the very rata which they coolly declared to be the one legal rate of " concessions in this country," absolutely was not so much as one of the various rates which M 'I 29 k * we know fo have been prevalent, even in the Crown cemives immediately before the cession I have shown that most of the Detroit gv »nts of the Crown, at this period, were made at a nomi- nal cens. wi h a sol oi rente perarpent, e^nAa quar- ter of a minot ot wheat for every arpent by forty ; some, however, fixing this sume qunmity of wheat for every arpent hy sixty ; and I have shown that there were Royal grants during the same period at Fort St. Frederic, where the rat" Was the \ike cens, the same sol per arpent, and the half of a minot of wheat, per /orr an end quite ng the tenor of se points, indeed, ind i3 an inevita^ Even as it stands 1 uniform rate, ill borne out by se documents of body the laws at h Canadian law, t to England by n 1772. In this net printed men- r Marly of 1711. sely the connec- iew I have taken spect to find it ; art of the work the Custom of to alienate in any the incurring of Superior Lord. 3 work correctly the two thirds of ing, still correcl- d, the party ac- Superior Lord — er fine. This ex- 1 prohibition by ! than the two- sions tending to ather an ameli- he part of the ign, by an arret 6th July, 1711, vince without re- rs dans cette Pro- oncede the lands ( them ; in de- conceded by the reunited to the k, the compilers nd here, if indeed ate, or even fixed der that tenure, Jut they do no s : — " cens, cen~ innual payment jrs of a heritage seii^neur censier, )f the fief from in lowledge- re cigneurie.) a money, grain, d (lutre espice.) ut the work — at )3eqiii-nt part of 1 recital ot im- Ordonnance of itory of buildings course given, as And further on, :he volume, and as introductory to a resunU of what are printed as the Police Laws {Loix He Police) in force be- fore 1760, occur the (following remarks, indicative of the importance attached to that Ordonnance as part of the past public laws of Canada : — " The laws of which we here give a synopsis " were generally followed, with the exception of " some few articles of little importance, which " were changed by later laws. It were to be " wished tor the general good of the Province. " that government would insist on their execu- '• tion. The non-observance of some of them for '' nine or ten years past has already caused con- " sideri jie harm as to the clearance of lands ; and " without desiring to enter into any detail, we " can testify that the mere nou-enforcement of " the arret of the Consul d'Etat of the 28lh " April, 1745, is one of the principal causes of " the dearth which we have suffered for some '■ time past. That arret prohibited the habitants " from establishing themselves on less than an ar- " pent and a half in front by thirty or forty in " depth. It was enacted because children in di- " vidiri;; the property of their parents established " themselves, each on his portion of the same " land, insufficient for subsistence ; a practice " hurtful alike as regarded the subsistence of the " towns, and the clearance of the country. The " former government considered this matter so " important that they caused to be demolished all " houses built in opi)osilion to this arret ; not- ': withstanding which nothing at present is so " common as establishments of this sort." Following this introduclory notice, and printed at the head of these /.oi'x rfe Po/icc, are the two arrets of Marly of 1711, and the arret of 1732, prohibitory of all sale of wild land. The compi- lers hnd no ne?H to say particularly, :is to ii, tie, that since 17liO ihey had not beeneiiloiceu. Ihere had been no court or functionary vested with the powers of the Governor and Intendant of the old time, to enforce the first ; and no captains of the Cote, to do their part towards carrying out the summary procedure enacted by the second. And as to the third, it would have been strange indeed, if under English rule wild land would have been thought of, by any Court or Judge or functionary, as an unsaleable commodity. Cugnet, ihen, is ihe remaining writer of this period, of whom I have to speak. And the passage Irom his book, in relation to this mailer, (pages 44 and 45 of the Loix des fiefs) reads thus : — " The rules of concession, (lesreglesde conceder) " in this Province are 1 sol ofcen- for each arpent '■' of frontage, 40 sols for each arpent of frontage " by 40 of depth in Jirgint Tournois, currency ot " France, I fat capon tor each arpent of frontage, " or 20 sols Toiirnois, at the choice and option ot " the Seignior, or one half minotof wheat lor each " arpent by the depth of 40, as seigniorial ground " rent, (de rente fonciire et seigneuriale) inclu'ing "the other seigniorial rights, (coinpris tes autres "droits seigneurtaux) ; and this in consequenre " of titles of concession that the intendants gave '' in the name of the king, on the lands conceded " in the king's Censive." " There does not appear (il ne parait point) In " the archives any Edict of the King, which fixes "the seigniorial ce?is ei rentes that the Seigniois '' are to impose. Ihese rules g.ew up by usage. " (C«» regies se sont itiiblies par Vutage.) The king "conceded thus the lands of A«6i/a/w in his cen- " tive ; (le roy a concedi ain.sic les terres d^habitans " dans sa ceniiue ;) and there will be found true "judgments only of Intendant* (rfeux ju^^cmen* " d^ Intendans seulement) which confirm this " usage ; the one of Mr Begon, Intendant, of the " 18th April, 1710 ; and another of Mr. Hoequart, " also Intendant, of the 20th July, 1733. Besides, " the lands are not conceded at one rate (ne sont "point concedces egalement) They are in the " District of Montrenl at a higher price than in that " of Quebec ; no doubt, because the lands of Mon- " treal are more valuable {plus avantageuses) then " those of Quebec. These two judgments relate " to lands in the District of Quebec." This passan;e, I am aware, — far as it is from really stating it, — has contributed a good deal to- wards the formation of the popular belief in the existence, under the French government, of some uniform or maximum rate. 1 remark, however, that it bears date 15 years after the cession of the country ; and, whatever it may purport to say, can be no good eviilence as to what was the fact before that event, — the do- cuments of the time itself existing, and making full proof to the contrary. But what, in truth does it say 1 — That the rules of concession in the Province — or rather that the ruling rates of concession in the Province, (for this latter expression, though a less literal transla- tion, is certainly that which better gives the mean- ing of the French words used,) are so and so ; and this, as a consequence of the rates of grant in the King's ceiisives ; there is no edict of the King imposing observance of them on the Seigniors in their grants to their censituires ; there are but two judiiiDoiits of IntciKliinls. conlirmatory ofthe usage prevailing in that behalf, which, moreover, was not uniform, — the rates in the District of Montreal, ruling higher than those in that of Quebec ; and lastly, these two judgments are as to land in the District of Quebec. But this is in effect to say, that though there had come to be ruling or prevailing rates, there was no uniformity, no fixed rule, no enacted maxi- mum. Let me note, further, that in giving these ruling rates, as they are here given, for the grants in the Crown domain, Mr. Cugnet has unfortunately not contrived to be accurate. He was evidently not aware of the extent to which (as we now know, from the papers lately printed on the subject) these rates taken uji by the Intendants varied, ac- cording to circumstances of place, time and other- wise. He has given two rates. One of these is the rate named in the ordonnance of the 23rd of January, 1738, on which I remarked some time since, (p. 170 ofthe second of the volumes laid before this House,) and by which M. Hocquart— the Seignioress interested having fyled her consent — named a rate for certain grants theretofore made* by her in her Seigniory ; but this, as I then stated and must now repeat, does not appear from any of the printed grants of land within the Crown censives to have been a rate ever loUowed in any of those censives. The other is that of the two Point St. Frederic grants, on which also I have remarked ; but I have shown from the documents themselves, that this last rate was by no means the only rate of the period, even for Crown grants ,7»>» 32 encensive; that it was higher than those of the Detroit and Lake Erie grants of the same time,— ami this, notwithstarulitijf tile fact (shown by M.M. Beauhnrnoio and Horquart's despatch o( 1731— on p. 28 of vol. 4,) that in 1731 the King's sanc- tion had been specially asiced- and presumably obtained— for one of these Detroit rules. Not aware of these facts, and writing with no great ef- fort at precision, Cii;{net has fallen into error. I say, not writing with much elPorl at precision. And this, — apart even from the mere looseness of his style, and the inaccuracy of statement which I have noted, it is easy to siiow. He speaks of two judgments of Intendants, as the only judgments of which he is aware, tending to coniirin his "usage" — so called — as regarded grants in the ccnsives not belonging to the Crown. One of these, he cites as a judgment of Mr. Be- gon, under dale of the 18th April 1710. Begon became Inlendanl here, only in 1712. The judgment refe-red to, must be one ofthelSlh April 1713, printed on page U) of ihe second of the Volumes laid before this House. Cugnet himself did not take the pains to print it among the Ex- traits of Edicts kc, which form the concluding part of his Volume. And I do not find that it was ever printed until now. As now printed, however, it proves to be a mere arret de circcmlance, wholly without bearing on this vexed question of a fixed rate. The Seignior of Kbbulemens had petitioned the Intendant to reduce by one hall the extent of a grant of 12 arpents frontage theretofore made by a former Seignior, to one Tremblay ; but for wiiich a billet (!■<• concession only had been granted. The Intendant did so and in so doing ordered : — Trem- blay to take a deed for the part left to him, at the rate of 2 » sols, and canon or 20 sols at the choice of the Seignior, for each arpenl of front by 40 of depth, and 1 sol ot'cens for the 6 arpen of front. Why this rate was fixed, tliere is nothing to show. It may have been the rate stated in the original billet. It may have been the ra'e stipulated in the deeds of the adjoining lands. It may have been the rate specially prayed fi)r by the Seignior. — There is no word of its being a usual rate for the whole country. Besides, it is positively does not answer to either of the two rates styled usual, by Cugnot. So far from giving color to his notion, that two rates were usual, and as such enforced on Seigniors by the Interdant, it shows the precise reverse, — that the Intendant here sanctioned quite another rate. It admits of remark — merely as an indication of the temper of those times, — that the judgment seems to have been an exfxirte order, on a Seignior's application ; the de- fendant cemitaire, half of whose gr.mt it took away, not being stated to have appeared — or been summoned to appear. Of the other judgment cited, under date of the 20th July 1 733, 1'ugnet gives short abstract, (p. 64 of his Extraits,) just long enough to show that is also is no case in point. It is printed au long on fage 157 of the second Volume lately laid before arliament. In this instance, tlie Seignior of Port- neufgo an injunction against a number of his can' sitaires, ordering them to take titles for their lands; but not at either of the rates mentioned in Cugnc'^ not yet any one ot those now known to have been stipilated at the time in any of the censives of ihe Crown, nor answering to those fixed in the case juiit mentioned. Indeed, the command is in the alternative, so that one cannot precisely say what terms were ordered. The Seignior had produced two old deeds of concession, granted in his Sei- gniory ; the terms of which are not stated though It is apparent from the recital, that they embodied a clause stipulating corvies or the performance of labor for the Seignor by the censituire, and also payment of an eleventh ol all fish caught by the censitaire. And the injunction granted on his ap- plication, a°;airist all occupants of lands in his seigniors who had not taken deeds, was this ; that they should forthwith take such deeds, either on the terms of these two deeds (corvfes and all) or else at the rate of 30 so/s and a capon nor arpent by 40, 6 deniersoi'ceni, and the eleventn of all the fish that they might lake: a rate certainly not accordant with any one of the many I have yet had to particularize. Is more proof wanting to show that the tradition of a fixed or known incximum rate, is not to be maintained on the authority ofM Cugnet 1 Fifteen years more are to be passed over. In 1790, we find the Seigniorial tenure and its pro- posed commutation into that of Free and Com- mon Soccage again — and this time somewhat se- riously — taken up. Apropos oi \\ns discussion, we have several documents, printed in the thinl of the volumes laid belore Parliament ; a report of Mr. Solicitor deneral Williams, addressed to the Committee ot the Executive Council ; a document drawn up by Mr. OeLanaudiere, anci laid before lhatbo?)re "on "f. '•■ 111 if J 33 ■ecisely say what or had protluced ted in his Sei- ot stilted tliough it they embodied perfortnatice of tuire, and also eaii(,'ht by the anted on his ap- of lands in his 1, was this ; that eeds, either on I'^M and all) or pon npr arpent evt-nth oColl the certainly not my I have yet hat the tradition s. is not to be Ciignet 1 ssod over. In e and its pro- 'ree and Com- somewhat se- ! discussion, we II the third of t ; a report of iddressed to the :il ; a document and laid before he Council on reasons of dis- the Council, ! p. 30 of the ers to this mat- i'orth, in lan- ishing import- mount of this he words : — ntioned ol the ere bound to tories for the , and by the 2, upon non- :"yal Grantee, re impowered on the part of the Grantee, the Receiver are two ob- Id hardly sup- d professional there is not in a word about " but only a d litre de re- ed way, and ns et rentes" an the word rret of' 1732, the Governor ■ 17 ). thereby also Lands (.bois the ConTact Lands to the the purchase m A loose and uf^ain inacriirato paraphrase ; as it conveys the idea that only 'lie grantees of the Crown, or Seigniors, were prohibited by t\iv anct 011732 f;om selling land eu huu Uebout ; llii- certain fact benig, thai all persons," Seigniors and other proprietors," were alike prohibited from so doing. The wri(ur j)roceeds — still on the :>amo page :— ^ ^ " J3y the rolurc Tenuri!, the (jianlor, whether " the Iving directly, or his (nuntio en Jhf inc- " diaUhj, sli|iu!iiteil aspf'i'ilic Slim (one hall-penny '■ for every acre ill I'loat by foiiy iicrt s in dejilli) '• payable to him by the rulure tJraiitee aniiinilly ''on a (ixcd day, & at the Seigneur's Maiisioiilh.iise '• for what i.s termed ccns, eviilenciiii; thereby that " he was the Seigneur ccnsier it fuiificr, or iiii- '■' mediato Seiga(;nr of tiie rolurc liiMAoo, muriiua "lie la (lirecti: sei'^nriiriv: a siiecificalion iiidispeiisi- " hly iiec(.'.ssaiy to iiiiitle the Soigiii ur to be paid " tlie luilt el ci'itU'-; upon every tiubj^equeiit a'ien- " atioii of the Laud granted, {rcn>i jioile lols et " vrnti's'), and auolr.er specillc Sum (one liilf- " penny far every superfici.il Acre conlainid in '■ the (iruiil) for what is eallrd renlr. In the " towns of (^u"bec and Three Rivers, the Rc- " servatiion of ihi.' ccn>ict renter for sjuall lots, are '' variable and very low, but spccilically ascor- " tallied." Thus, in two i)areiit'u >li,iuli:s)ia\d upon his refusal ihi' Gov- " ernori.s authorised on the part ol thet,'rowii unci " for its benelit, to the exchi.sion ol'lhe .Seignior lor " ever, to concede the lands so applicl lor. " 15y the .'•■ami; laws" hi,' ))rocerdj, "ihu Siignior.s " are foihidtlen, under jiain of nullity am! a reunion " to the Crown of llie land atlciiipli'd :.i be sold '' to .sell any part of their laiRlbniieli;a.-'d or en " bois '/t'/>oW, dispositions of law highlv lavorable, " to the improvement o; the Colony,"" Ue. It must be admitted that Mr. Mabaiie wr.s les.s unguarded in his use of words, tlun Mr. Williams. Hid statements are farenous^hCiom being con ect ; lor, (as I have already observed; the DecLuatiou of 1713 contains no reference to tliis matter of the censititircs'' claim to concessions of wild land ; and under the (()•/•€/ of 171 1, it was not the Gov. rnor, but the Governor and Intendant conjointly, to whom in the case supposed the power to concede was given; and by the arret ol 1732, not the Seismor alone, but everybody, was forbidden to sell wild land, l^ut at all evrnis, ho treats us to no jiarenthetic assertion of the uniform rate theory. On the contrary, from his u.se of the phra.se " ac- " customed and stipulated.'^ one would ratlier in- fer that the notorious fact of the variety of the rates stipulated, was present to his recollection as he wrote. Nearly (our years later in date, we come to another document ot considrrnble iiii])ortanco in relation to this a. Iter. A liiimber of /i;'Ai7«)t.s of Longueuil appear to have pt itioned the Hou.?e, complaining of certain conduct on the part of iheir Seignior. The petition itself is nor printed ; so that I can only state its piupoit from the abstract given of it in the Attorney (General's report upon it — the document I am about to renuuk upon. It is there said of it : — "The petition brinss forwaid questions for " public discussion, upon which there are various " opinions. The second clause states that Mr. " Grant, in open defiance of the ancient ordinances " of the Kings of France has arbitrarily increas- " ed the rents of three lots of land which he has '' conceded to his tenants since he became their " Seignior ; and the remaining clauses complain " that he has increased the reditus paid by the " petitioners for lands conceded by his predeces- " sors." This petition was referred by the Governor tO' the then Attorney General (Mr, Monk) for re- port ; and his report on it. under date of the 27th of FeOruary 17i^4, to be found on page 93 of the English veision ol the third of the Volumes laid before this House, is another of the documents (i 34 ..'* m which have been cited as confirmatory of the opinion I ann romb.itiiiK Ii it reully »o ? In Ihf first place, it stntos thf tenor of fho first Jrret of Marly, in fpiito other terms tlmn thoup of Mr. Willintiu's report of 1790. " The HoyRJ "Ediel" i«HyN the Attorney (icnernl, "of the (>lh of " July 171 1 enneted, that every Sf-ignioi should " concede, iijion application, sncli ([unntilies of " implanted land) DM any inhubitiint should a.sk, " willun the limits of his Seigniory, d litre de re- " devttnre, ft siiiif rxiijcr il'mx aticune Bomine d\tr- ** gent ; and in crise of the Seigi ior's refusal, the " same edict authorized the (iovernor and Inteii- " daiit to grant the land required, (/i/a: mememlruils " imfiostK nur ks autres Icrrrs conrhUen dam let " dites Seiuineuriet." A paraphrase, copyin;j verbatim the essential words of \\\e .4rret ; and precisely accordant with the view I have been nmintaiiiing. in regard io it. The report proceeds : — " There does not however appoar among the " records of the province, any eaict of the French " King fixing the exact qumitum of the reditus or " cens el rentes seii;;netiriales ; but prior to the " coiuiuesit, a rule taken from the concesaions " made by the Crown, where the King was the '\immediate seignior, was much followed. By " this rule, to reiidei' any one estimate applicable " to the whole province, the cens is fixed at one " sol (/rcrci< lournois, or a hall penny, for every " acre in breadth by forty in depth, and one capon " or tell pence sterliiii; at the seignior's option, or '' half a bushel of wheat where lUn reditus was " friad(; in grain. " There are two judgments, one of the Intendant " Begon of the 18th April 1710, and the other of '' the intendant Hocquart of the 20th July 1733, " in some degree confirming this customary regu- *' lation ; but it must however be remarked, that " this rule was net absolutely general, «iid that *' the reditus in the district of Montreal has ai- rways been greater than that of the district of " Quebec. It was perhaps impossible, from dif- " fereiice of soil, situation and climate ; and upon " the whole, I do not think that any general rent " was by law established, and I conceive the edict ''of 6th July 17J1 to be the ofly guide for de- " termining the que^diun." Still, of course, other than confirmatory of the high authority of Mr. Williams. And evidently, I mij;ht add, taken from the statement on the same matter, of Cugnet's book, on which I have al- ready commented. Even to the misprint of the date of the Begon 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 ol any authoritatively fixed rate, before 1760. I continue tocife the words of the report: — " This edict clearly shows an intention, in the ** Legislature of the day, to compel the Seigniors " to grant their unconceded lands to the inhabi- " tants, and in my apprehension to g.-ant themt " at the customary rent in their respec've Seiir- " niories, because that is declared lo be the "standard by which the Intendant, who conceded " in case ol the Seignior's refusal, was directed to I ' eatimalfl the legal rediliis which he was author* " i/ed to establiih. I " I am thereloro of opinion, that the prenent I " (eitsniorR of Canada have in no instance a right I " to exact from their tenanis more than the ac- j " customary rcditui fixed by their predecessors I " before the coiujui-st ; and that the legal reilitus I " ill each ^'ei|{niory is a matter of fact established ! " by the evidence ot ancient deeds ol concession. j " And if it was then in the tenant's power to " compel his lord to grant bib land lo him as he " had Kranted it to oihers, throu!;h the interven* " tion of the IJourt of the Intendant, these terms " Mere and still are his legal ri!{ht ; the edict uf " the 6th July 1711 is Rtdl in force. " A.s to the clauses of the petition complaining that ' the Seignior has arbit>arily incrcas'>d the reditut ' paid for lands forrac.ly granted to the peiitioners, { " I am clearly of opinion, that in all ca^os of leased I " or concessions already made by the Heigniors to j " their tenants, the reditiis fixed by the deeds of I" concession can never be increased under any pro- ' *' tence whatsoevur, But it is a question whether j " the pctitiuiiors have at present a legal mode of re- I " dress aga'nst the innovations of wJiidi they com- I '' plain. " As the law stood before the conquest, the tenant, " in cases similar to the present, would have found '• an immediate remedy upon application to the Court " of the Intendant; and I am of opinion that the " present Courts of the Province are adequate to the " purpose f .iffording tliein effectual relief." Not having the petition to refer to, one cannot ha sure as to the precise intent of this opinion, on some points. T'art, at least, of the complaint, seems to have been, that the Seignior was exacting from par* ties who held under concessions made by his prede- cessors, more than the terms of their grants warrant- ed. As to that charge (the one last reported "n in the extract I have read,) there can be no questioa of the correctness of the opinion given, that such ex- action was illegal, and that the parties had their re- medy. As to the other part of Ke complaint, it U not BO clear what it was, or what redress the peti- titioners had asked, or even how far the Attorney General, meant to go in the expression of his opin- ion in the premises. Mis words may be twisted into meaning — 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 before the conquest, such higher rate could not be recovered. Hut 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 arret of Marly alone, which fixed -.one, must guide us. I infer from it an intention on the part of the legislator to enable parties to compel Seigniors to grant at the rates theretofore usual in their idspective Seigniories." And I therefore think that a Seignior has no right to stand out for a higher rate, when parties call on him for grants.— But, suppose 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 just so far set a.side as to relieve him from such rate, and no further, — no one pre- tending 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 35 > was author* the preient itaiice d right Ihan the ac< prod«c««8ori lei{iU reditu^ t estublishcd if ronceision. 'a power to n him na he the interven- these terms the edict o( iiplaining that (I th(! reditut Uo pi^iitionerH, ;a!*OH of leases Hcigniors to the duedii of ndor any pro- Htion whctlier al mode of re- ich they com* st, the tenant, d have fouud n to the Coart iniun that the Icquate to tlio dicf." one cannot bt niun, on some lint, seems to jng from par- by his prede- •ants warraut- opoited "n in ) no quetjtioa that such ex- h&d their re- smplaint, it id dress the peti- the Attorney I of his opin- ng — I believe d mean— that pay a higher anqucst, such liut I cannot to believe him nt amounts to The arret of ; guide us. I the legislator grant at the 'e Heigniories.' has no right parties call oa not to have to have made it follow that as to relieve —no one pre- Id be? One n have meant inless, indeed, jy are not) to Otike it poMiblu to put any other sense upon tliem. the naturitl influenoos on the feilingi, views and Ian- (Jiving the lUprnKsions here uicd, then, the Dthcr gnagti of what waa inevitably the popular party in meaning ; undnrNtiiii. A few years l:\ter, in 1803 and 1803, we reach the time of the ijrintingof the two well-known volumes of our Eilits et Onlonnances. 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 Seignio- ries, on which I have had occ ision to remark ; and the arret of Marly, with the untrue recital on its face, that the taking of money for land by Seigniors, was •' entirely contrary to the clauses of the titles of their *' concession!, whereby they are permitted only to •' concede lands subject to dues {a litre de rede- *' vance)"; but there has not been before the public, that context — so to speak — of the arrets, title deeds, and other documents of the period, which I have had the advantage of being here able to bring to bear upon their interpretation. In the absence of the proof these furnish, it could not but be, that such reci- tals as these two volumes contain, should have tended most powerfully to confirm the impression, that the old state of the law and jurisprudence of the Prov- ince, as to all these matters, was anything but wha^ it really was. Still following down the history of the Province ; considering the long feuds of its contending parties ; trol which had previously pressed, somewhat (it may be) upon the Seignior, but most surely far more heavily upon the cenaitaire. Both had become, to use tho brief phraso of the capitulation, " subjects of the King." I hey could no longer bo so controlled, either as to person or as to property. The inalien- able right at common law, the major prerogative (so to speak) of the British subject, had settled that point, beyond question or appeal. Tho iMbitant of the cotes de Montreal couli no longer be told by an Intendant how many horses, mares, or colts, he might be allowed to keep ; nor the liahitant of Longueuil be condemned unheard, to the rendering o( corvees not stipnated by his deed ; nor the luibi- tant of whatever parish be forbidden to choose a town life, without written leave. Prevented, under the Ordonnance of 1745, from building house or sta- ble on land of any less width or depth than suited the pleasure of the French King, ho became free to build what and where he pleased. The arret 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 arret of Marljjt under which a Governor and Intendant might grant a Seignior's land, in the King's name, to tho complaining applicant whom the Beignior should have refused, — if, again, ever mattre 36 seigniors, or in some wlied i ed ; seeking to recover from him some .vears' arrears escheat to the Crown, and the executive act besides, of a grant by the Crown to such party, of the land so impliedly escheated. A king of France might of ccufi ct rrntcs, calculated not at the rate of a half penny per A() acres, but at that of 3 bushels of wheat and i) shillings currency per 'JO acres — iho rate usu- vest such powers in his Governor ai.d Intendant, the ; ally paid for the neighbouring lands ; together with two othcors who together rejjresented all his own the fines for not havirig shown his deeds, and al". fcf/s et rentes ov mutation ilnesaccrucd on the several .«ales of the property which had taken place, 'i'hc Defen- dant, of coui'se, set up the title, under which the ori- despotism, executive and judicial. But a king ot England could not. Undi/r English rule, escheat to the Crown is a matter for tlie Crown alone to prose- cute, and is a direct — not an implied — process. Un- i ginal grantee from the riaintilf's predecessor, held ; der English rule, a grant by the Crown, is a grant of and said, your predecessor agreed, when he so granted what the Crown holds as its own ; and made by exe- to my predecessor, that in cmisideration of the large cutive authority,— not through a court of law, by a sum of money paid, the quit-rent on this gi'ant was proceeding to which the C^own is no party. The to be the snuill quit-rent stipulated by the deed ; and whole procedure is oni, alien to every principle of our piibiu law. No court or judge, no governor and court Oi judge together, could have been set to give elTectto it. And yet, unless by means of this procelure, or else under the arret of 1732, which decla,-ed all sale of wild land (by whomsoever made) to be null, — an enactment, which I believe no one has the courage to call law, — there was ,,■ means ever by anv law that lods ti veides were never to accrue upon it. I therefore, can be made to pay no higher yearly rent, and am liable for no lods ci vcv/cs. The Seignior in rei)ly pleaded, that tin; act of the former Seignior was illegal ; that he could not so alienate his land as to bar /oi/a et rentes upon it, or even jirevent its being charged with the usual and i)roper rate of eois et renie-i. It was proved in the cause, that (irrespective of the particular grant of this tract^ the lauds in tho provided, to give efT-.iot to the French king's" will, | ^^'gniory were by no means all granted at one rate ; signified in 1711, thiit the seigniors of Canada— pro- ' ^"^ '''"' '''*' '''^'•^ above mentioned was that charged prietors holding their land under no such condition-- i "" "'"-'''■ of them. The Court condemned tho ~!:"e'd not ex.act innnoy for it while uncleared, but i '^'''''^"''""' *° P'^y '''*' arrears of (T;;.? et rentes at the f.\'::'U<^. grunt it" a litre (lere(kvance,"hy tcimre of!''"''''f^ '''*''' thus established, and the fines for not /•erfewa?ice, for thecon>ideration of dues m/«^i/rt). j having exhibited his title deeds; implying thereby, Nor is this negative evidence, all. I turn to the ' '''^''°"''^^> '''*' ^''^^ '^''''^ '"'"^ liable to 2)ay Ws f< positive jurisprudence of our courts, ! wc't's. One thing is notorious. The standing comnlaint I '^'^^ J'>Jg'"f;"t was appealed from, and in 1821 re- of all the complainers against what are called the ex- I ^'^ ' '" ^° °" ^' "'' '"-*- ""''-'^ " ^'^'"^ ^* actions or usurpations of seigniors, has ever been of the seigniorial character of that juiisprudence. It has pa.ised 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 rentes; the Court of Appeals holding the quit rent stipulated to be, by operation of law, ceris, recognitive of the tenure of the land en censive of the seigniory, and necessarily importing liability to loda ct ventes on all sales of the land ; but not admitting of altera- tion in amount, from that borne on the face of tho deed creating it. 37 the seigniors^ al course of ilent myself iry few only, proceedings a|)j)endix to ly into the Johiisonw. the Court of ontrcal, and il>eals. (I^ee and follow- of the V'ol- giiior of Ar- time before acrt's of wild the face of r such f;rant >y which he itrent of one cicase of the t, to lods et gniorial bi r- )■ was sei'.ed e new Seig- tliMs grant- cars' arrears te of a half licls of wheat liQ rate usu- igfthcr with and al" Jods several sales The Defen- liich the ori- 'essor, held ; so granted of the large is giant was 3 tU'cd ; and upon it. I yeaily rent, Seignior iu ieignior was s land as to 'ut its being of ccns et irrespective ands in the t one rate ; at charged Binned the :nk's at the ics for not ig thereby, pay lods et n 1821 re- e of cens et e quit rent 'ecognitive seigniory, ct ventes ', of altera- ce of the The sale of this wild land by the former seignior (for, a sale, and at a cash price, it was) was thus no nullity ; as the arret o{\732, if law, would have made it. The quit-rent stipulated was the only rate of cetis, that could be recovered ; and could not bo altered, to bring it into conformity with any ruling or common rate. The whole restiiction on the seig- nior's power to alienate, held to obtain, was this in evidence, that the Plaintifl", having reason to ap« prehend that his lands might be taken possession of by parties cUimant under adverse title, had in effect induced the Defendant to go upon the lot in question upon a clf:ar understanding, that he should have th, land on easy terms. This, of itself, was a decisive consideration in the case ; for if one man get another to go and settle on his land with a promise to let him that, alienating en ce)i.sjye— giving to his vendee the I have the land on favorable terms, he cannot after- quality ofcensitaire, he could not (by privat3 con- 1 wards, by a common Petitory Action, turn him out tract with such 6r«st<(u"re) prevent tlie ordinary legal i of it. The judgment, accordingly, was for the ncidents of the tenure eu cansive from attaching to Dtfendant ; but in giving reasons for their judgment, the grant, — could not free the land from liability to- wards the domain of his seigniory, for lods ct ventes. the Court, after reciting this sufficient reason, went on with what may be called an obiter diction — a fur- — Had the alienation, indeed, been held not to be a ther reason, not necessary to their conclusion, to the grant cncensivc, — it must in law have bei'u taken for \ effect that moreover, " every subject of His Majesty a sale of a part of thc_//(/ or seigniory ; the acquirer, a co-vassal with the vendor ; the sale, and all after sales, of the land, chargeable with the heavier muta- tion fine of the i/uitit, or fifth part of th^ price, to the Crown as the Scujiiior Doninant, or superior lord. The second of the cases in question, is that of Duchesnay rs. Hauiilton, decided bv the Court of Queen's Bench for the District of Quebec, in 182(i, and to be found on pp. 81 and following, i-f the French — 10(3 and following, of the English version, of tb.e same volume. It was an action instituted bj' an advocate not very likely to be absurdly wrong in his view of the law that governed it — a gentleman more, iierhaps, than almost \ any other of his day, the admitted ornament and , honor of the profession in Lower Canada — the late Mr. Chief .lustif'o \'allieres. The action was against certain parties holding land in the Seigniory of Fos- sambanlt ; to require them to pass a deed acknow- ledging such land to be charged with ccns ct rentC'i at the rate of l pence currency, as well as with other , seigniorial burdens, as the neighbouring lands were \ and to pay three years' arrears of such crvs ct rentes. is entitled to demand an ; obtain, from every or any I " Seignior holding waste anil ungranted lands in his [ '' Seigniory, a lot or concession of a portion of said " waste and ungranted lands, to be by every such ■' subject, his heirs and assi(;ns, held and possessed " as his and their own i)roi)iM' estate, for ever, upon " the condition of cultivutiiif? and improving the " the samp, and of paying and aliowinf: to every such " Seignior the reasonable, usual and ordinary rents, " dues, profits and acknowled^iinirnts, which, by the " feudal tenure in force in this I'rcvince, are paid, " made and allowed to such .Sttisniors by their tenants " or censitaircs, for all such and similar lots of land ;" by reason of all which, they dismissed the Plaintiff's Action. Now, it is to be observed, that even admitting tiiis cohsidcrunt ever so unreservedly, it is far from aflirming (on the contrary, it does not so much as countenance) the notion of a fixed or ma.iimum rate for the whole country— much less, tlie notion that contracts entered into for liisher rates, are not thereafter to bo enforced, as made. But it was, be- sides, a considerant, not necessary as a reason for The Dcrend.int ploalcd, that when ho acquired the : th'> jiulsment given ; and it is an olivious and miiver- land, no such rent was slipuLtted or nirntioncd as charged on it, by the Plaintiff, or by the party of whom the land was bought; that ho had ever been and was willing to tako. a deed of the l.uid at the rate of 1 sol por arpont, bvung tlcit at which a great pa;i of the lauds in the .S.'igniory had been "ranted ; and that the rate demanded, of four pence ':.'rcncy, was a higher rate than by law could be demanded ; a Seig- nior having by law no ri;,'ht to i^raiit at a rate higher than that of the olil ra'c^s in his Sei.:;niory. Cut he was expressly condemned to take title as deniauded ; and to pay tlie throe yjars' arrears in (luestion, at the rate demanded ; being double the rate fi.xed by the bill now bc-fore tins Honorable House, as the ina.v- iinum rate legally chargeable by a Seignior — tl.e rate to which all higlier rates ever stipulated are to be cut down. The Court of Queen's Bench so fixed this very rate, by a judgment never appealed from. Can it be, that it is proposed, by .Act of I'arliament, to cut it down, for all time to comn, by one half! The third case 1 have to notice, is that of .McCmI- lum vs. (Jrey, adjudicated upon by the Court of Queen's Honch for the District of Montreal, in 1828. This action was brought by the owner of one of the yeigniorios witliin the township of Sherrington, held by a peculiar tenure to be presently adverted to ; and was a Petitory Action, to turn out the Do- fend ;ut from the occupation of a lot of land in the Seigniory. It was a hard action — not to say a very hard one. The fact was pleaded, and clearly shown sally admitted rule, that reasoninR not necessary to a jiulKinent, is not to be held part of such jiulgment. Indeed, as regards this particular case, whatever in.-iy or may not be the law as to any otliei' Siugniory, it is at least certain that the Seii;niory in this judg- ment referred to, was held by such a tenure as to be out of the purview of this supposed rule of law. Tlii'-. case is ref(!rred to, in the rcjiort of the Seigniorial TiMuiro Comtnis-ioiiers, as the '•' sin- gle iMslaiice," so f.ir us tliry were aware, in wiiich a Seignior had been iinsuccossfnl in con- test asrainst a ccnsitairc, upon any ))oint connect- ed with this matter of 'he rights of Seignior and fcn.'.i/ftjrc under the «;■/■('/•? oi Marly. 1 am my- self awaro of no other ol'like lenor. Though I am of course aware, that the doctrine incideiitiilly laid down in it, and on which I ha\ e remarked, h,is ol'Icii been spoken ol) as thougli it hail llie support ol" a settled jurisiniidcuce to the same ed'ect. The next case to bo noted is that of (iui<'haud rs, Jones, also d(.>eided by the Court of King's Heiich for the District of Montreal, in 1828, and to be found fully reported on p. 93 and following, of the French, — and IKi and lollowing, of the Knglish version of the same volume. The action was one of a lar;;e number of the same date and tenor, all involving the same considerations, de- cided alike, and submitted to without appeal by the defendants. The Seigniory involved was that of St. Arm^iid, one of those granted in the 38 later days of the French regime. About the year 1796, the then Seignior of that yie/ granted nearly if not quite the whole of its extent, in lots, to a nuniber of grantees, by deeds very much of the character of the deed I remarked upon some mo- ments ago in speaking of the case of Johnson vs. Hutchins. They were called deeds of sale and concession ; and set forth the engagement of the vendee to pay the price agreed u[)on Avith in- terest, by a day fixed, as also a small quit-rent for ever. And it was added, that the S«ignior released the lands from lods et ventes, and every other claim, seigniorial or otherwise, forever, such quit- rent alone excepted. The action in question was against the holder of one of these lots, for this un- paid purchase money, with a long arrear of in- terest, and the arrears of this quit rent. The question of the exigibility of /orfs et ventes was not raised ; the Plaintiffs setting out the terms of their predecessor's grant in that behalf, and not pretending by their Declaration that any lods et ventes had accrued, or indeed that the land had ever been sold since the date of its original grant to the defendant's predecessor. The case was keenly contested by Counsel of the very highest standing and ability at the Bar ; Mr. Ogden and the late Mr. Buchanan, for the Plaintiffs ; the late Mr. Walker for the Defend- ant. The latter by his pleadings most distinctly and precisely raised tne whole question of the va- lidity of the arrets of 1711 and 1732 ; averring that the late Seignior, the grantor of the land, was hound by laAv to have granted a titre deredevance only, and, without exacting or receiving any fur- ther price ; and that being wild land, he could not by law sell it, under pain of nullity of the con- tract, and escheat of the land. And the evidence consisted entirely of the admissions of the Plain- tiffs, fyled (so as precisely to meet the whole question of law raised) in tsese words : — ." Firstly.— That the seigniory o) Saint-Armand, m the declaration of the plaintiffs in this cause ' mentioned, was granted and conceded under ' seigniorial tenure, d titre de fief et seigneurie, ^1 by the most Christian King, whilst the Pro- ^^ \-inceof Lower Canada was subject to his au- thority, and previously to the conquest of the said Province by Great Britain. ^^ " Secondly.— That by virtue of the said origi- ^^ nal grant or concession, the said fief and scig- ^^ niory of Saint-Armand, from the conquest of ^^ the said Province, anduntil after the day of the ^ date of the deed specially mentioned and de- ^^ claredon.in the declaration of the said plain- «< 1' u'l* ^^'^ '^""^^ ^y^^'^' ^'^^' '""• continues to be, held by seigniorial tenure, d titre de fiefctseig- ^^ neune, of our Lord the King, accordnig- to the ^ laws, usages and customs in ibrco in the said Province before and at the time of the conquest thereof as aforesaid. " Tiiirdly.— That on the day of the date of the said deed in the declaration of the said plain- tiffs recited and set forth, the late honorable ^^ Ihoinas Dunn therein, and also in the said dc- ' claraiion named, was seignior, proprietor, and in possession of the said fief and seigniory of " Saint Armand. " Fourthly.— That the tract of land mentioned ' and described as well in the said deed as in the " declaration of the said plaintiffs in this cause " fyled, was at the time of the execution thereo " waste, uncultivated and unconceded land, /er- " let en bois debout et non concidies, of the said " fiefixA seigniory of St. Armand." That is to say, the admission of the Plaintiffs was, that every averment of fact urged by the Detendant was truly urged, — that the land when sold by the former Seignior was wild land, never before granted, within his Seigniory,— such Sei- gniory then being held according to the old law of the land, as subsisting under the French r6gime. And their position was, that the sale was never- theless not null in law, nor the lend forfeited ; but that the purchase money with interest, and the arrears of the quit-rent, were due and exigible. — The Court maintained that pretension ; thus affirm- ing in express terms, that contracts by a Sei- gnior for the sale oi wild land in his Seigniory were valid, and must be enforced, — the arrets in question, notwithstanding. Two other cases remain ; to be found in the same volume ; the one that of Holland vs. MoUeur — (see pp. 101 and following, of the French, 115 and following of the English version,) conducted for the Plaintiff" by two learned gentlemen, both ot whom are now Judges of the Superior Court, and defended by Counsel then & still holding the high- est position at the Bar ; the other, that of Hamil- ton vs. Lamoureux, (see pp. 119 and fo'.jowing of the French, and 143 and following of the Enr^lish version,) conducted for the PlaintiflT, by one of ti>e gentlemen just referred to, now a Judge of ftie Superior Court, and defended by another gentle- man, also now a Judge of high rank and standing on the same Bench, and by another gentleman still at the Bar, and enjoying there the highest re- putation for ability. Both actions were ably and keenly fought ; to recover rents very considerably higher than the rate which is assumed by the Bill now before this Honorable House, as the highest that aduilts of legal sanction or excuse. The pleadings in both causes were put into every form, in which the skill of the ablest Counsel could state them ; with the view, in one shape or other, to make out the illegality of these rates and obtain for the Defendants a reduction of them, as exces- sive. In the former of the two cases, it is true, it was in answer set out and shown that the land had been granted r.nd re-acqui;ed by the Seignior, before its concession at the rate impeached. But in the latter case, (which, by the way, was ore of a large number of like cases brought about the same time by the same Plaintiffs, defended on like ground, and dcided in the same terms,) there was no such answer; and the question of law came fairly before the Court, as raised by the Pleas. It was 'learly proved, iowever,asin all such cases it can bo, that all manner of rates have at all times jiievuiled, not only as between different Seignio- ries, but even as between diflerent grants in the same Seigniory. And, notwithstanding all that could be said and cited for the Defendants (and nothing that could bo done in their behalf by pro- fessional skill and zeal was left undone) it was held by the Court tliut tiif high rates sued for were perfectly legal rates ; and they were enforced ac- cordingly. One more case I must notice in this connexion, as of later date, — decided only last year by the Superior Court sitting in the District of Quebec ; the case of Langlois vs. Marteli to be found on the Lov T had 39 !Ution thereo ed land, ter- , of the said the Plaintiffs urged by the le land when d land, never y,— such Sei- the old law of rench rigime. e was never- forfeited ; but :iest, and the nd exigible. — . thus afRrm- cts by a Sei- his Seigniory -the arrets in found in the id vs. Molleur 2 French, 115 n,) conducted emen,bothot or Court, and iing the high- hat of Hamil- 1 foliowing of f the Enrflish by one of ti'e Judge of flie other gentle- : and standing er gentleman he highest re- •ere ably and ' considerably ed by the Bill 3 the highest xcuse. The Jo every form, spI could state or other, to s and obtain em, as exces- i, it is true, it hat the land the Seignior, eached. But y, was ore of lit about the L-iidcd on like IS,) there was )f law came he Pleas. It such cases it at all times •ent Seignio- grants in the ling all that ^ndants (and ?half by pro- one) it was ucd for were enforced ac- ? connexion, ear by the 3f Quebec ; s found on the 30th and following pages of the 2d volume of Lower Canada Reports. The concession(in the Seigniory of Bourg Louis) had here been made at the rate per arpent of one sol or half-penny of Seignioral ccns et rente pro- perly so called, and of course irredeemable, and of seven sols or three pence half-penny more of rente conslUuie, or redeemable rent not bearing a Seigniorial character, — in all four pence per arpent — double the maximum proposed to be de- clarator) lyenacted by this Bill. Some years ol arrears due under this grant were sued for. The Defendant again raised, by a variety of pleadings, the question of the ley^ality of a grant on such terms. The highest talent of the Quebec Bar was engaged on either side ; and the cause, equal- ly with those before remarked upon, was unques- tionably contested as keenly and ably as cause possibly could be. Yet, — and notwithstanding the fact that the stipulation in this instance of part of the rate agreed on, in the form of a rente constituce, made the case one nither more advan- tageous for the defence than that of Hamilton vs. Lamoureux, where the vvholc rate was Seignior- ial — the Court again affirmed the antecedent jurisprudence ; maintained the contract, as valid, held the censitaire, as of right, to the bargain he had made. And these cases that I have been citing, in which the vaidity of sales and grants (at what- ever rate) of wild land by Seigniors, have been thus maintained, after the fullest argiip:}ent, are no isolated cases, against which counter decisions can be cited, or that fail of support from the con- stant practice of every Court. All manner of varieties of rates of concession, all manner of varieties of concession deeds, as to quantity of land, rate, mode of payment, charges, — every- thing that can form part of such deeds — have been put in suit, tiroes without number. Never Court or Judge, administering the law under sanction of the judicial oath, set aside or altered one such deed, in respect of any quantity, or rate, or mode of payment, or charge, by the parties thereto co- venanted. I know it has been said, that these decisions have not been carried to fin?.l appeal, and there- fore are not to be regarded as constituting a settled Jurispiudence, decisive of the tenor of the law. But whose fault has it been, that they were not appealed ■? Not, ce/'ainly, the Seiijniors' ; for they weie the successful jiaities who could not appeal. The reason is soon given. The Court at Montreal was of the siime opinion as the Court at Quebec ; the judgments were all of the same character ; the Judi;ts all of the same m;iid. Appeal' so far iis the Courts here were in ques- tion, was plainly useless ; and with ^•v^ry .liid^e here pronouncing in this mntfer of local law, fa- vorably to the Seigniors' rights, it was f-li to be idle to hope for a reversal of thi-ir decision b5' the Privy Council Able zealous, deleimimd men, fought the battle, ar fought it well ; but having lost it, they knew ihat it was lost. The time has long gone by, when the rcimt'nrca as a class were too poor to appeal. They are as well the richer by very far the richer — as the larger and more powerful class. They have failed to curry out their contest in appeal, lifcause iheir Counsel told them— because they knew and filt— that ap- peal was hopeless ; that the Judges ol last resort, Kitting in Her Majesty's Privy Council, would in- terpret and administer the law, as the Courts here had done. I know, too, that what is called judge-madc- law has often been held up to popular suspicion ^ and those whose habit has been to reflect on our Courts of Law as unduly Seigniorial m their juris- prudence, have not failed to derive a certain d. - greeol advantage from the feeling soTraised. Bu'; there is really here no question of judge inadt law, at all. No text of law, nor principle ol jurisprudence, adverse to this rule of decision, can be cited. Unvaryingly adhered to, and well known so to be, no text of law ever was enacted toreveiseit. Jf such a rule be not truly law, who shall^ say what is 1 In truth, it is precisely in these decisions of the' Courts of Law, that the tenor of the law is for practical purposes to be read. Men do not study the statute book; they do not ask Counsel — Coun- sel, even, do not content themselves with asking — what is in the statute book ? They ask what is the law 1 That is to say, what is it practically ? How do the Couits h 'Id it 1 What wdl they enforce? What will they set aside? If for ninety years and more, Courts have gone on en- forcing all contracts of a particalar kind, — it in a number of important cases, ably argued and solemnly adjudged, they have adheied tooneand the same style of decision, — by what right dare Counsel tell his client that such decision is not law ? It argues a most dangerous state of the public mind, when men lightly run down what the Courts of Law have for ages held as law. The lain! whose Judges are distrusted, where men fear or hope that any day may witness a reversal of the judgments of a century, is a land where all |)roperty and all contracts must be un« safe ; where man cannot trust man. But, iiesides all that the change of public law conseqi: -nt on the cession ol this country to the Crown (pfGreat Britain, has done, and all that this jurisprudence since has done, to confirm and strengthen my client's position, there is yet more. Grant* of Seigniories have been made since the cession, by the British Crownc; afTecte.l, equally with those of earlier date, by his Bill. Two of these grants are of Murray Bay & Mount Murray : of the same date (17(52) and on the same terms. The former is to be foune, free of Quint or Seiiiiiorial buthen towaids the Crown, -four Seig- nioiies were gianted, those of Thwaite, St. ,Tames, St. George, and St. Noimand. Even since the ' Union, an augm'.'iUatioii has beea granted on the ' same terms, to one of these Seiiiiiiories, (if not, as 1 believe, lo all,) consisting of the Clergy Reser- ve Lots in and near it; (.■ovenunent thereby again irranting land Seigniorially, wilh this power ex|)ie-sly recognized on the grantee's put, not meiely to hoUl the land absolutely as bis own properly, but even to determine wilhont reserve or limitation, the tenure, under which it shou'd he held, il he should see fit to alienate it. 'J"he Bill before this Honorable House treats even the holders of these Seigniories, as something short of proprietors. With as good reason, perhaps, as others. And it has not l)een with reference to these Sherrington seigniories only, that legislation has re- cognized Seigniors in Canada as proprietors hold- ing for themselves, and under no trust limitation. 41 result to them- I'ith regard to )ied by tenants ame with the I'erything they 3rd Section of the authority ctters Patent" [lally granting lall have been ?said, it shall or, Lieutenant r the Govern- Ller the Great t to the said lives, in Fief 1 all Seigniorial s, as well the ' the said per- illo, or of the lid except the in, as any oth- p, in respect of ill have been uier hcreinbe- he said gian- es respective- m, to alctiiate part thereof, such rents, re- , and on such other manner Ihor with the receiving all cs, rcdevunces his whatever, d or become of February, ; as Tenants of Ihe deeds of virtue of any I" whicli they >tent reciiing set forth the vith so much en franc aleii, , and on any of Qui III or vn,-four Seig- ite, St. .Tames, en since the •anted on Die ies, f if i:ol, as -Clergy Rescr- nent thereby th this power !e's part, not as bis own ihout reserve ich it shou'd ate it. The eats even the thing short of perhaps, as icc to these slation has re- prielors hold- st limitation. The Trade and Tenures Acts, the work of Im- perial legislation, not popular (I admit) in Lower Canada, but yet law, and law which Provincial legislation cannot constitutionally touch, — have de- clared every Seignior to be entitled, upon mere payment to the Crown, of the value of its pecu- niary rights over his Seigniory, to obtain commu- tation,, as between the Crown and himself, of the tenure of his Seigniory. This done, he becomes at once, under those acts, owner of his ungranted lands, free from the burthens of their former te- nure. But this legislation of necessity implies that those burthens were to the Crown alone — the burthens from which the Seignior so buys relief," that they did not comprehend any bur- then, in the nature of an unexpressed trust, — from which he has not to free himself, of the existence of which the law breathes no hint. And 1 have further, and Provincial legislation to cite ; still in the same sense. I turn loan Ordinance, of an exceptional Legis- laUirc, 1 admit, but yet of a Legislature of Lower Canada ; an Ordinance, too, which this Bill pro- poses to respect and maintain unaltered ; the Or- dinance of the 3rd and -Ith Vict, chapter 30, for the incorporation of the Seminary of iNIontreal, and the voluntary gradual commutation of the tenure in its seignioiies. By that Ordinance, that Legislature recognized and treated the seigniories of the Seminary as their absolnte proj)erly, held by and for them- selves, — thai is to say, for the mere spiritual and charitable ends of thi.'ir corporate life, — and not as having been granted to them under any trust for sub-concession to other parties, in any par- ticular way, or on any particular terms. I ad- mit, of course, that terms of conniuitation were imposed upon them, which under ordinary cir- cumstances would have been objectionable ; as not securiuif to them the true value of the rights to be commuted. But this was done in an enactment which for the first time admitted the corporate character of their body ; a character till then dis- puted, and held oiien to grave d'Mibt ; and the gentlemen of the Seminary, to assure to them- selves that character, were willing and consented to submit to those terms, as a lair compromise. This consideration alone can justify the terms of the commutation, which by this (Jrdinance were imposed upon them. But, aside from this, in what light does this Oidinance regard the Seminary ? As proprietors in tliL'ir own right, or as trustees for the sub-granting of land tj cciisilairts 1 I or en franc (lieu, oc under the obli- gations of the Fief or Censive tenures. There can be no exception t^ 'le rules, that make pro- perty and contract saced, and men free lo hold the one, to frame and give etrect lo the other. Now, under all these circumstances of this present case ; doing one's best to put out of view that state of the old law of France on which I have insisted ns 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 in- tent and meaning of all that the King of France ever did, legislatively or otherwise, in respect of those grants and of their rights under them, — and the jurisprudence of his Coirts, m fixing all that down to the cession of the country was on these matters law ; I say, putting all these things, to the "tmost 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 i)roprietors in their own right, but trustees, bound to ^rant their lands on some terms or other, as to rate, reserves, or wnat not ; need I ask, whether the state of things so supposed to have then preva 'ed, is the state of things that prevails now, or towards which in this latterhalf of 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 1 Have these ninety three years' prescription done noth- ing ■? 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 of all English law, writtei.or unwritten, that none shall be disseized of his freehold, or abated of any his claims of pro- perty or right, otherwise than in 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, ofboth of which it has lately been the fashion to talk so much and so inaccurately. Attempted in the case of Guichaud us. Jones, the attempt failed; and at all events no one, I feel well afsured, will venture to contend that a sale of wild land is null, or that wild land sold is escheated de pleiu droit to Her Majesty. Yet if it is not, — if the arret of 1732 is effete, how has that of 1711 escaped the like fate 1 For ninety three years, there has been no machinery to effect either of the two escheats which it threatened ; the absolute escheat of the unsettled Seigniory ; or the yuosi-escheat and after grant of the land, part of a Seigniory, which a Seignior might have refused to grant. During all this period, the jurisprudence of all our Courts has maintained all contracts, whether of sale or grant, and at whatever rates. During all this period, the action of the Crown and Legislature has harmonized with that of the Courts ; has in no wise contravened their decisions ; on the con- trary, has lent all countenance to them ; has cons- tantly affirmed their principle, the principle of all British law and rule, — that m a British country men are men, not children,— their property their own, not their ruleis' — their contracts, what the}' choose to 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 p,evailed in 1711, in its entirety, but merely a small fraction of it, or rather what is w'rongly said to have been such fraction of it, — for (as 1 have shown) this controlling of the Seignior was in those days more of a pretence than ofa 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 few votes and lit- tle influence ; and in so doing, to ignore all that far larger and more real remainder of the system m 43 under them, — rta, as fixing kII ountry was on all these things, of sight ; doing ice was a time, d b)r the French ors in their own their lands on serves, or wnat ate of things so is the state of Is which in this ' we here are to Legislature can ds which it can step 1 Have )tion done noth- vvhich all Ivinds to hand, under affected in all under security ill English law, 11 be disseized of claims of pro- e course of law. English law, it put into force 1732, of both of lion to talk so mpted in the ttempt failed ; 1 afsured, will Id land is null, ie pleiu droit to if the arret of 1 escaped the there has been e two escheats escheat of the scheat and after iory, which a It. During all all our Courts ther of sale or iring all this id Legislature ourts ; has in ; on the con- em ; has cons- jirincipleof all ritish country property their lets, what they ir rulers may ^ Can it be, properties and '• three years' it is seriously incied former system which but merely a > wrongly said [or (as 1 have igiiior was in afa reality; to press hardly, nunity, whose votes and lit- jnore all that 3f the system which in its day pressed on the larger class, and the revival of which against that larger class, in- sanity itself would hardly dream of { It were to destroy the whole fabric of the re- lations between man and man. All the relations in life ot the proprietor, Seignior or Censitairt, are predicated on the value of his rights of proper- ty, as the jurisprudence of the Courts, authoi iative- ly establishing the law of the land, has determin- ed and guaranteed them. I give so much for my Seigniory, borrowed so much on the security of it, bound myself in all manner of ways to all manner of obligations by reason of its being mine; be- cause I knew that the revenue arising from the cens and rents and dues stipulated to accrue on the granted part of it, amounted to so much ; because I knew that the average ol its lods and ventes came to so much more ; because I knew that it contained such and such an extent ot ungranted land, of certain value, and from w hich I could de- rive so much, by lumbering on it, cultivating it, or otherwise ; because I knew that its mills yield- ed so much revenue, and had (attached to them) such and such rights ; because I knew that this and that water power within it, which other wi might have competed with those 1 myself should use; were not the property of the cerisiiaire hol- der of the land adjacent, and could not be used in competition with mine. Another bought land in my seigniory, precisely so much below what oth- erwise would have been its worth ; because it was burthened with a certain known rate of cens and rentes; because, whenever sold, lods et t'cnfej- were to be paid upon the sale ; because such and such reserves in favor of the Seignior were charged upon it ; because the valuable wa- ter power in front of it formed no part of it. Is all this state of things to be reversed t Are our respective rights and obligations to be legislative- ly annulled 1 Is the property that I bought be- cause it was valuable, to have its value taken from it 1 Are rights that another did not buy,— rights doubling, 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 1 And is this to be done, moreever, notwithstandina: that on the faith of the declared law of the land, the Crown in rlue course took its fifth 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 to 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 predicated on this received state of the law, which is now threatened with legislative reversal. One of the clients for whom 1 here speak, came to this country but a few years since, to settle and invest his means here. Before buying the Sei- gniory which at this moment (unfortunately per- haps for him) is his property, he took advice — the best professional advice to be obtained — as to the nature of Seigniorial property. The Seigtnory he thought of buying, was in part granted at rates ranging beyond the maximum now talked of, and in great part was wild, ungranted land. He was advised, of course, of the tenor of the jurisprudence of our Courts ; bought at the price thereon predi- cated ; paid the Crown the fifth part of that price ; the Crown took such payment ; and this Bill now threatens — I dare not say what reduction of the value of his property, thus bought in reliance on the law, thus in part paid for to the Crown. Another of my clients owns a Seigniory on which there was not (I believe) a settler at the time of the cession of this country to the Crown; a Seigniory, every censitaire of which holds under grants of later date than the days of the French government, aiid, (as matter of course, I might say) at rates exceeding — most of them far exceed- ing — this two pence currency per arpent, which by some wonderful arithmetic has been cyphered out to represent that unknown quantity, the un- discoverable fixed rate^of the olden time. He was the purchaser of his Seigniory at Sheriff's sale i and the Plaintiff prosecuting the sale was no other than the Crown. He paid the Crown, not the mere Quint, but the entire purchase money; and that purchase money was the pri^e — the market price — of these high rents, which this Bill would make illufjal. The Crown took that price, for those rents; which, as vendor, it most surely then held out as legal rents. This Bill threatens that buyer, with something little short ot the destruc- tion of the value of the property which the Crown so sold him, for which he so paid the Crown. What each of these gentlemen bought and paid for, they are not to be allowed to have. No Court of Law, by possibility, could be brought to abridge ehher of them, of one iota of the rights sought to be taken from them. But it is proposed to cut down those rights by Act of Parliament ; leaving them — wronged, impoverished losers by such abridgment of their legal rights — to pray there- after, at their proper cost, risk, and peril, for an uncertain, insufficient, illusory shadow of a so- called indeminity. Is this justice ? Is this law 1 The measure of right to be meted forth by the British Crown, to British subjects ? Can such a measure be laid before the Crown for sanction 1 Can the Crown give it the name and force of law i The Crown cannot — will not. I have characterized this measure, as one that [ cannot possibly be defended for an instant, unless upon the ground — which I have proved to be un- tenable — that my clients are not in very truth jiroprietors, 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 proper- ty, indicts upon them loss of every kind, and of- fers 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 entitled " An Act to define Seigniorial " Rights in Lower Canada, and to facilitate the " redemption thereof" ; and it begins by de- claring that it is desirable, " to facilitate thecom- " mutation of lands held en roture in the several " Seigniories of LowerCanada, by more ample and " effectual legislative provisions than are now " in force," and further, " to define the Seignior- " ial 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 cen- " sitaire formerly possessed against all encroach- " ment or exaction on the part of the Seignior, " as well as those of which the Seignior could " avail himself for the maintenance of his rightg.»> "* 44 Now, as to any facilitating of the redemption of Seigniorial riglits, 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 the rights of Seigniors. My clients are anxious to'have their projierty relieved from the odium of an unpopular tenure ; and would rejoice, as citi- zens and as proprietors, to see it change its form. At the same time, it is not their business, — and speaking as 1 heio do for them, it is not inine — to suggest the mode in which this is to be done. The proprietor has no right to urge any particular mode of procedure as that by which (for great ends of jjublic policy) the form & character of his property in to be changed. His right is merely, to insist that the chiuige be not made to his loss ; that for what the jniblic take from him, the public see that he be iudemnilied. Others licre j)ropo.se a change of the tenure, as a change ^.vliich the public interest demands. I\[y clients, provided only that they be indemnififd, — that their lights, before being abrogated, are redeemed, — have no objection to olfer. Against any change of the tenure, on this principle to be etfected, (no matter what the machine ly,) they do not desire me to say — and if they did, 1 woulil not say — a single word. Bui ^vllell it is proi^osed, as here it is, to deiine .Seigniorial rights, and when, besides defi- ning, it is further proposed to alter, by restoring — with modificalioii always — one knows not how much of cerluin alleged provisions of old laws admitted not now to be law, 1 have my objections. Deiine my clients' rights ] They are not doubt- ful. The tenor of their lilies is not doubllul ; the tenor of their contracts with their cciisitaires is not tloubtful ; the law, as applicable to the in- terpretation and enforceujonl of Uu'ir cortracts, is not doubtful. There is nothing donbuiil about the matter. The very mistaken iniiiression that has assumed the form of a popular doubt as to the matter, is not doubtfid ; but is jilainly, clearly, an impression having no basis of fact or law to rest upon. And, restore in jiarl the past 1 Tli'> past never is restored. Everything changes, oinva:il. The i'urllier changes wo have to m.ike, miistj,,be — not backward, towards the pa»l, but onward to the future. If every docuuient which has been laid before this House and the country do not ut- terly deceive, if every historical authority be not at fault, no part of that stale ot thiiijjs which pre- vailed before the cession of this country to the British Crown, and which that ce.-.-siou abrogated, was of such a character as to make it jiossible one should be willing (were it possible) to go back to it. What we have to do, is to go honestly for- ward ; further amending, in the si)irit ot the age, the state of things we have. But this first section of this Bill, as it proceeds to its enacting portion, savors only of retrogres- sion, not at all of progress. It projioses to re- peal the two Provincial Acts of 1845 and 1849, of which I spoke a few moments since, for the faci- litating of the optional commutation of the tenure. And the Bill contains no provision in any of its after clauses, for the I'acilitating or even allowing hereafter of such optional commutation, by mutual consent of the parlies, as these acts provided for. My clients regret that this should be proposed. These Acts provide for voluntary commutation, by mutual agreement, between themselves and their ccnsitaires. Why should this be made im- possible 1 Why should the machinery for com- mutation, which the existing law allows, be ta- ken away ? Is this, part of a Bill to facilitate the redemption of Seigniorial rights? To that end, there is needed no definition of rights that by law are clear, — no restoration of forms and modes of legal process that are obsolete and forgotten, — no repealing of statutes that already put it into men's ))ower, by mutual agreement, to effect such re- demption. Uighst must be taken as they are ; their redemption on terms fair to both parties, whether ascertained so to be by their mutual con- sent, or otherwise, must be made easy ; those le- gal processes and those only, that are best calcu- lated to elfect this end, and are suited to the spirit and jirinciiiles of the age, must be provided, as the means by which it is to lake eifect. .So much for the first section of this Bill. From the second to the filteeiith sections, it is taken up with provisions by which it is pro- jos(!d to reguliite the matter of the sub-granting or concession of the lands not at j)resent sub- granted, in the Seigniories. The Second section provides : — " H. That from and after the passing of this " Act, all and every the judicial j)owers and au- " Ihority vested in and granted to the Governor " and the Inteiuianl ofiN'ew I'^ancc or Canada, by " the arret, of llij JNIost Cliristiiui r^lajesty, the " Kingof France, dated at Marly, the (ilhof July, '■ 1711, in relation to lands in New France or Ca- " nada aforesaid, conceded in Seigniories, and by " any laws in force in Canada at ihe time of the " cession of the country to Great Britain, shall " and may be exercised by the Superior Courts "of Lower Canada, and by the Judges of the " said Court, or by llie Circuit Courts, due regard " being had to the extensions, restrictions and " niodilicalions of the said judicial powers and "' authority m.ide by this Act." That it is to say, all these powers, be they what they may, are vested, not merely in the Su- l)erior Court, but in each iiulividualJudge thereof antl also iu every single Judge of the Circuit Court. The jihrases used are "the Judges" of the Superior Court, and '"the Circuit Courts;" but it will be seen presently, that the summary proce- dure con tern |)lated may be taken before any one Judge of the Superior Court, and therefore never would be taken bi.'fore the two or three Judges who iilone can form a (juoruin oflhat Court itself; and the Circuit Court existing for Lower Canada, (as I iKM'd not say except for the information of gontlemen fiom Upper Canada not conversant witii our system.) though nominally a Court con- sisling of several Judges, never sits as such, — but must always sit and act as a Court of one Judge only. The pioposal is, to vest all the powers as to all land concecded cnjicf, that were ever vested in the Governor and Inlendanl together, that is to say, in the two o/iicers of the French Crown who together embodied all its despotic authority, the one the head of its military and state executive, the other its highest civil, financial, police and judicial functionary, — to vest all these powers, 1 say, in any and every single Judge in Lower Ca- nada, whether of the Superior or Circuit Court. I venture to express the opinion, that this is not to restore; he past. The arrets, one after another, show that the Intendants jealously guarded from all encroachment by inferior Judges, the high powers •**• 45 linery for com- allows, be ta- to facilitate the To that end, rhts that by law s anil modes of 1 ioi'i^'otten, — no nit it into men's /Feet such re- 1 as they are ; both parties, cir mutual con- casy ; those le- are best calcu- suited to the ist be provided, ; elFect. lis Bill, th sections, it lich it is pro- c sub-grantiiji; ]iret,eiit sub- passinjj of this )owcrs and au- tlie Governor or Canada, by ^Majesty, the It' (ithofJuly, France or Ca- iorios, and by e time of the Britain, shall iperior Courts Jud^'us of the rts, due rc^^ard '.striclions and 1 i)o\vors and ei's, be they cly in the Su- Jiidgi; thereof f the Circuit dkljies" of the urts ;" but il unary proce- fore any one I'ofore never liuue Judjfes I Court itself; ivver Canada, formation of )t conversant a Court con- as si;cli, — but )f one Judjje 10 powers as e ever vested icr, that is to . Crown who ithorily, the e executive, , police and ese powers, n Lower Ca- iciiit Court, this is not to fter another, rded from all high powers vested in themselves, — much more those yet high- er powers entrusted only to the Governors and themselves acting conjointly. These were pow- ers far transcendinj; any mere judicial authority. TheJIntendant— absolute Chancellor, Chief ,lu.s- lice, and what not, as he was — could not himself ( xercise them alone ; any more than the Governor. Nothing short of the direct interference of the whole embodied absolutism of the French King, conid put them into operation. And yet it is i)ro- posed — calling tbeiri lo that end, "judicial pow- ers," as in truth they were not — to 'lace them in the hands of every single Judg'! oi the tliicuit (.'ourt;o( every incumbent of a .riulicial ollicis tin' (lualilication for which is live years' staiiduiii; at the bar, and a willingness to acce))t ajnilicial ])n- : ition of inade(juale emolument and not of the higher grade ; lor witliont meaning the sli^lilcst disrespect to the gentlemen who hold that i)o,silion — and I have the liighi'st respect for every one of them, and only regret that the emolument and rank of their position are not more in accordance with what 1 believe to be their personal de.'-orts, — il yet is an indis|)utable fact, that the jurisdiction entrusted to them is the inferior jurisdiction only, of the country. Under this clause, as worded, 1 do not see but that any one of these gentlemen might decree the escheat to the Crown of an entire Seigniory ; and certainly this high ])Ower — half stale, half Judicial — to escheat and grant away Seigniories piecemeal, is meant to be conlerred on each of them. Again 1 say, there is not here any restoring of any feature ol ihe past. Indeed the concluding words of the Section make it clear that no restoration is meant ; for it is there said that this (lOwcr is only to be exercis- ed, "regard being had to the extensions, res'ric- " lions, and modilications of the said judicial " powers and authority made by this Act." Not merely are they to be exercised by any one of a score oriiKireof functionanos, in place of being ex- clusively the function of two acting together ; not only art' they to devolve on functionaries of a rank less elevated ; but they are not to be exercised as of old, at all. They are to be extended, restricted and modified, — to be converted inloother powers ; and then, and then only, put into force, — new powers, by new machinery, to new ends. 1 read the next Section, as the first of those clauses that logi.'ther set forth the extent and na- ture of these innovalions, which it is proposed to make, under color of a restoration of the past. "HI. And in order lo facilitate the exercise of " the said judicial powers and authority — Be it " enacted, That no Seignior shall herealV'r con- " cede to any one individual any extent of wild " land, exceeding l:iO superficial arpents, other- " wise than by two or more separate deeds of con- " cession, bearing date at least two years from " each other, or unles, the excess over the said " quantity of 120 arpents be conceded to the fathers " inother or tutor for the use of one or more min- " or children ; and in the latter case, the extent " of land conceded for each such minor shall not " exceed 120 superficial arpents, and the minor in " favor of whom each such concession shall be " 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 attention to the 89th Section, nearly the last Section of the Bill, and one of its interpretation clauses. Is it thereby provided that :— " The words 'wild lands' or 'wild land,' when- " ever they occur in this Act, shall be construed " to a])ply not only toall wood lands or lands " otherwise in their natural slate, but also to all " land in part settled or cleared, or otherwise ini- •• proved by any other person than the Seignior of • the crnsivc within which such lanil shall lie, if •• such land so settled, or in jiart cleared or im- " provtnl, be not yet conceded." Inother woids, su|)pos,iiigany land in a Seigniory not ihpretofore su'i-gianted by the St ignior, to be partly setiled or cleared, or otherwise improved ; if this have been ilone by any one but the .Seignior, or a p;irty acting at his instance and for him — tor 1 tiike it for granti.'d, that it is not meant by the words used, to reipiire that he should himself have been the clearing se'tler, — such land is to be con- sidered " vviKI land," Within the meaning of that Bill. But need I go into armnnent, to show this no such idea as this was entertained m 1718, when the French ICing limited ihe obligation of the Seminary of Montreal to concede at a certain rate, to wild land, (" p;i buis deboiit," — huid in Ibreat) and expressly saved their ri^rht to deal as they v.onld with any land, a fourth part of which shouU' be cleared {"doiil il y aura iin qnurt (Ic (Ivfrii hi') no matter by whom or how ? Or, in 17;iO, when Messrs. Beaubainois and Horquart, writinir in a spirit of hostility to the Seiijniois, (p. 22, of Vol. 4 of prt))eis bet'ore House) proposed to let them take the full advantage oi all clearings, and of all natui.al meadows, (•' r/cs (Iffikhcmeals et ilcf prairies »u//iy the terms of required to stip- -and lastly, that 'd price in the nt of which is in blank ! The •ns on which, I d ; but the price itermined, I sup- signilicant of an antly high, en this proposal 1— M'ith that of ig of the same ince would not sed to compel lould be low, it t the land was right of lods et ' case. And the rants en censive lower the cens, the land be bur- 30 as to yield no 1 be worth no- ield no lods. If all, the land at readily at a fair >eignior in the ) take away on le time to give 3 that the rent -a blank sum, the land shall ay, by a tenure Raudot's pro- much an inva- le acted on in o be acted on in Jeed the Seig- ill. And I iind oi him aj gran* tofi unreservedly to guarantee lo the grantee the quiet possession of his grant. As grantor, I am not to get the value of the land I grant. My price for my laml, the law is to limit. But my liability, a» having granted it, the law is to leave unlimited. 'J'ieJ down as to quantity, and conditions, and price, — not alienating my land, —in fad having it taken from me, — I am to be just as unreservedly liable to the man who takes it from me, i( he is troubled in his possession, as though 1 h«d sold or granted it to him for a fair value, of my own free will. And, as if to keep up throughout, the style of satire in which the whole is drawn, my rent, (of blank amount,) I am told) is to be "considered for all legal puposes " as a constituted rent {rente cunslUuie) redeem- " able at any time, representing the value of the " the immoveable charged therewith." It is to be considered to represent such value. Why is it not to do so ? Why am I not to have that va- lue ? My predecessors had it, under the French Crown. My right is, to have it now. Once more I say ; clauses like these could not have entered into the mind of man, i niess by rea- son of the doctrine, in all its 'ength and bread'h and fulness that the Seigniors are wrong-doing trustees, to whom no mercy is to be shown. That doctrine disproved, — and disproved it is, — the«!e clauses, one and all, admit ot nc word of de- fence or apology. But there is more to come. The Seventh and Eighth Sections read : — " Vll. All sales, concessions, agreements or sti- " pulations hereafter made, contrary to the prece** " ding provisions, shall be null and of none efl'ect. " VUI. Every Seignior who shall receive, di- " reef ly or indirectly, any sum of money or any " other valuable thing as and for the price or con- " sideration of the concession of a quantity of wild " and unimproved land, over and above the an- " nual rents and dues, or over and above the ca- " piial they represent, shall repay such surplus " to the party who shall have so paid or given the " same, or lo his representatives ; and any per- " son who shall so pay or give any sum of money " or any other valuable thing, shall have an ac- " tion for the recovery thereof with costs in any " Couitot competent juisdiction." Again, no restoration of anything that was law before the cession. The one nullity in those days ever thought of, as I have shewn, was that threa- tened by the arret of 1732,— the nullity of every sale of wild lands, by ctiisitaire or Seignior. The sale of land not absolutely 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 censitaire might make ; and that remedy was by appeal to the Governor and Intendant, and the oiitaUiing from them of the concession, which the arbitrary will of the King had committed to them (on such complaint made, and not otherwise) the right of granting. But l>y this threatened legislation, 1 am told the size of the grants I am to make; they are neither to be too large nor too small ; all freedom as to condi- tions and price of grant, is taken from me ; and if any man for any cause agree to let me have the advantage of other and to my mind better terms of any sort, such agreement— no matter how free- ly made— is to be •' null and of none effect." 1 cannot bind him to his word. He cannot bind himself. Nay, in the c.ise. even, of his having given me any kind of consideration whatsoever, to induce me to prefer him to another, for any lot that may chance to have been particularly in de- mand, I must give it back to him, or his represen- tatives, whenever he or they shall see fit to ask some to do. There is such n thin* is immoral legislation ; and, as on- instance ol it, I must say that the law that wantonly enables men of iull age and souikI mini to unsay their word, to get back what they may have feely given, or keep what they may have agreed to give, for that which at the time was an honest consideration, is not mural. The less we have ot su.b law, the better. I proceed to the iiinth soclion : — •• IX. Every Seignior who possesses within his " censive any wild lands, shall be entitled to dis- " member from such wild lands and to preserve for " hiftown private use, without being oblieed to con- " cede any prt thereof, a domain which shall not " oonhist of more than superficial ar- • ' pcnts ; Provided alwiiys, that foigniors who have •' already domains within their censivea, intended for • ' their piivate u«2, of the said quantity of • ' arpents or more, sha'l not have the right of ro- «' serving for snch use any part of the wild and un- <' conceded lands in the same censive; and that Beig. «' niors wh'.>so 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 censive as will '' complete the saiU quantity of arpents." Innovation, still. — The old law of the Feudal Te- nure, as we have seen, required the g-untce of land en fief to keep such land himself. Every permission to sub-grant was a relaxation of the rule. And that relaxation was carried in Canada to its utmost length, by the arret of Marly ; under which the granting of land was not merely permitted, but in general terms, and without specification of any particular extent of reservable domain, directed. But there could have been, at the time of >'ie framing of this arret, no idea of preventing a Seignior from reserving any extent of domain, no matter what, that he could make use of. When the King granted a seigniory of s'X leagues square, to noblemen of high rank, — as for in- stance, he did Bcauharnois — was it to be supposed that the Marqu' i de Beauharnois, the Governor of the country, and his brother, men of their position and pretensions, were meant to be limited to a blank number of arpents for their domain ? Never. — And the grantees of seigniories were, in the great majority of instances, men of mark and consequence ; many were of noble family ; many were to be re- warded for valuable service rendered ; many render- ed special service as a consideration for their grants ; some had their seigniories (the Comt^a of St. Lau- rent and D'Orsainville, and the Baronneriea of Portneufand Longueuil, for example,) so specially en- nobled as to give rank to their owners in the peerage of France itself; as a body, all were meant to be the nobles of New France. Was it ever meant to say to them, that they must not hold and use for them- selves, more than some fixed maximum fraction of the vast grants of land, which by its letters patent the Crown gave them in full property forever? The arret of Marly could have meant to threaten no more 48 than tbi( : you are not t.) koop these grants wild and i UDUiv^d in your own h«n(lH, ao as to Htop the clearing ' of the country ; the kiiiK'.s olijuet LtMrig to get the I country ulenrcil, lie onjoinH mi you that yuu Huh- graitt it to sKttluri, as ocunsion nhnll ruciuiro, in con- sideration of dues to l)u Htipiilatud, and without in- j (iating upon whiit uii'ler the circuni.stancns the king docs not choose tliat intouJint,' nuttlcrs bu re(|uircd i to give- payment of money in advunco. When tiiu j king Maid tiii^, he .<*uid nil thut lie meant to cuy ; | more than hi; nii'ant to liave ciirriud out. 'I'lie un- > forcement of the order was left to tho twohij;hu.stfuiiu- tionariui in tlio country ; nncr-sariiy with iht! wiilcst range of discretion as to such rnfDrcunicnt ; and wc I know that they wuru never indi^sposed to enlarge I tliat raMi.;<-. I IVftctically, Ircp'iit, no .Seignior'ji domain was! ever limited. I Uut now, it is propo-;(jd (und^r pretext always of, restoring the old .st;itu of tilings) to (ix upon soniL' j hlttiik iMunb'r of arpeiits, ii.s such limit; to toll the dejceudiwits ai.d ri'prointatives ut these propi-ietnrs of the old time- -propru'tors, ninny of them, undiT titles that only di I not (luitc invest tliein with sove- reign prerogatives within tlu! limits of their proper- ties, — that tli''yaro not to retain more than so many arpents for themselves, the niimher not known, but sure not to bu extravagant ; and that they must part with all the rest, to whom, on suoh. terms, at such prices, as the Legislature— no, I ought not to say the Legislature— as any .Judge of tho Superior Court or Circuit Court shall determine. Let us see, then, wlr.t are to be the prerogatives of such Judge, in this proposed new capacity, as re- presenting till! Governor and the Intendant of the days of French absolutism. They are rather high. 'J'hc tenth and eleventh scclions read : — " X. Any person '.vho, after the passing of this " Act, shall have called upon tho seiynior of any " seigniory whatsoever to concede to him or to liis " minor eliild, a lot of land forming part of the wild " and unconccded lands of such seiijni jiy, ;nay, il " the seignior so called upon refuse or neglect to | " coiiceJo such lot of land, summon and sue such " seignior by action or demand in the form of a do- " claratory petition, ((•C(/(/('^i Hbcliec) in the Supc- " rior Court, or before any one of tho .Judges there- '' of sitting in the district, or in the Circuit Court " sitting in the Circuit, in which such lot of land is '• situate, for tl'o purpose of obliging such seignior to " concede the same. " XI. Whenever the seignior shall have no domi- " cile in the seigniory iu which such concession is " demanded, the writ of stunmons and tho petition " thereunto annexed shall bo served upon his agent, " or upon the person charged with the collection of " the rents of the said seigniory ; and if there bo no " such agent or no such person having his domicile " in the seigniory, the service of the writ of sum- " mons and of the petition thereunto annexed, shall " be made by posting on the door of t he place appoint- " ed for the receipt of the seignior! ;1 rents, for the " year next preceding such service, a duly certified " copy of such writ of summons and of the petition " thereunto annexed." I see nothing as to the length of time to elapse be- tween the service or posting of this lotition and its presentation to the Judge. I suppose it is intended, therefore, that it shall be the usual length of time allowed for return of a summons. This ia the Supe- rior Courtis 10 days, with an aliowanrcfor the nun* ber of leagues to bn travelled ; and in the Circuit Court 5 tiays, with a like allowance. That is lo say, within from !'> to 10, or at nn)»t 'JU days, Ny a sum- mons that need not ho personal, nor even a summons made at his domicile, — of tho issue of whicl ho may often not bo made aware, — every seignior may bo Hnmincmud to answer for himself, on this matter, (tho refusal to con cede his owti land to '• an// jicrnun "— vagiihoiid, stranger, alien, no matter who — or to any " Mtiior chUil " of such person — boy or girl, no mat- ter how young,) and this before the Judge whom such person may select ; and tho alVair, as tho next section of tho Hill advises ns, is then to be '* deter- niiiii'd in a snininary manner," unless such Judge shall think lit to order a plea to be fylcd, and writ- ten evid(!n2o to bcadiluced. I read the clause, lest I bo thought to mis state it.^ tenor : — " Kvnry such action or dcmnnd shall ho dclcr- " mined in a summary manner, unless tho Court or " the Judge, befori! whom the same is brought, shall '' think lit, for the interests of .justice, to order a plea " to be (lied and written evidence to be adduced ; and " ill every such action the said Court or the said " Judges shall condemn the Seignior so sued to give " a iJecd of Concession of the lot of land so demand- " ed, in favor of the I'laintitr, on the conditions and " in the manner prescribed by the sections " of this Ac, within .-^uch delay as shall be appointed " by such Court or Judge, unless the Seignior so " sued, shall show that the lot of land so demanded " as a concession forms part of the lands reserved by " him, under the sanction of the law, as a domain for " his own use, or that lie is not by law obliged to " make such concession ; and in any case in which it " .shall be more in accordance with equity to order " that a lot of land other than the one demanded, bo " eoticedcd to tlie riaintifT, it shall be lawful for the " said Court or for the said Judge so to do ; and " whenever the Seignior shall, after the expiration of " the delay ellowed, have neglected to grant a Con- " cession l^eed in tavour of the I'laintift', such judg- " nient shall to all intents and purposes be for the " .said I'laintift' in the place of a Concession Deed of " the lot of land designated therein, on the conditions " therein specified." And so, 'vhen, as the representative of tho grantee of any land held en fie/ (that is to say nobly) whether under grant from tho Fnmch Crown or from thn IJritish Crown— say, as representative of the first grantee of fJeauport, Des[)laines, Mount Murray, or St. (ioorge in Shcrrine ton— holder under grants of property as absolute and unrestricted as can be ex- pressed in French or J'iUglish words — I find myself impleaded before any Judge whom any person im- ))k-ading me may have selected, my cause is to be heard " in a summary manner," that is to say, with- out written plea, or a day's delay for preparation to plead verbally, or record of tho evidence taken ; un- less such Judge see some special cause to order other- wise. Implead mo for fifteen pounds and one farthing, or as to any other matter that this, at all aflfecting real estate, or any right in futufe ; and I have, of right, my delay to plead — my plea fyled in writing — my adversary's written answer — the evidence of every witness recorded — a written Judgment, from which 1 can appeal. But here, with my property at stake — real estate too — to a value perhaps of hundreds, perhaps of thousands of pounds, I may be impleaded I 4. •J 49 mis stato ita hy a proceii not amounting to a Ingal lummon*, b«- fore a JiidRe to be nnlocted bjr mj adfersary ; «nd, unless by that JudKo''* porniisHiuii, I am not to liave tbo poor satisfaction of time to plead, or tho ri^bt to record my plea, or the rigbt to liavo tho «ridcnco rodiicod to writing, so tlmt 1 may taku my chance of briiiKixg up any scoundrel, who may have committed perjury to my prejudice. And even this is not all: tho Judge, if ho please to think such course " more in accordance with ecjuity," may order mo to grant any other lot of land than that sued lor. I niay, pcrhop'*, noc be present : I may bo ill ; the roads or thu weather may have de- tained mo ; 1 may have staid away, thinking it of little conseiiuencu what was done, — the lot demanded being one I did not vilue. llut niv one Judge, if (for vhatuvor cause to hi-i own mind at the moment hcem- iug sulFicient) ho .sliuli see fit so to do, may f^ivc this " any person " any other part of my land than tiie part he so demanded. Peiliaps it may nut matter much, as matters arc meant to stand by this Hill, what part of my land is given to one, and what part to another, or whicli parts are to go first. Tiic.y arc all to go ; and will not bo long in going. Htill, tho lust feather, says the proverb, is what breaks tho horse's back. But wo aro not come to this last feather yot. The thirteenth section is as follows :— ■ " XIII. Whenever it shall appear to tho said Court *' or Judge that tho lot of land, so demanded as a " concession, is not susceptible of cultivation, or forms " part of a mountain, liill, rock or other land, which •' it might bo necessary or advantageous to reserve •' for the making of maple sugar, either for tho use " of those who shall have acquired that right under <' agreement with tho Seignior, or for the use of the " censitaires of such Seigniory generally, or for any }' other object of public usefulness in such Seigniory, " it shall be lawful for the said Courts or Judges to " reject such demand." That is to say : it shall not be lawful for my Judge to reject the demand, on my production of the titles of my Seigniory, showing that the land claimed is mine ; on my showing that the applicant has no more right to it, that any other man on this earth — or per- haps, that as a vagabond or as an alien ho has (if possible) less claim to it than most others ; on my proving that it is not only mine by written title, but has a house (my property) upon it, and that it is un- der cultivation by a party hoMing for me, or at any rate not denying my rii,'ht. If this one Judge shall think that it does not form part of tho lands reserved by me under tho sanction of the law as a domain for my own use, or that I am by law (this very Bill to be such law) obliged to make concession of it, — I may not keep it. Unless it please tho Judge to let me, I may not put in my plea to assert my right to it ; nor examine a witness brought against mo in writing. But the Judge may, in his discretion, take from me any other lot of land instead. And if (still in his limitless discretion) he shall think the lot "not sus- ceptible of cultivation," or a lot which it would be " advantageous to reserve for the making of maple sugar," or for any other end that ho may regard as an " object of public usefulness," — that 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 the de- mand ; and, I take it for granted, may roaerv* Uio lot Kcoordingty. Tho Fourteenth Section oarriei us a itep further : " XIV. In all such damandit, the exception baaed " upon tho allegation that tho lot so demanded forma " part of tho lands reserved by tho Seignior as a do- " main for his private use, shall bo rejected on un- " contradicted proof hy two credible witnesses, that " the Seignior, or his agent, ban, before tho filing of " such demand, refused to point out to the I'laintiQf •' the situation and extent of lands so roserrcd by " him, or that ho has pointed out, as forming such " domain, lands in which the lot, demanded as a " concessiou, was not comprised." If then, any two persons (on tho occasion of this summary hearing) shall come up and make oral de- position that I have refused to point out, whenever asked, tho lots on my seigniory, reserved as by this bill required, for my domain ; or that I have pointed out as such, other land than that indi.'^pute; unless I have ready upon thu spot (as 1 can starculy have,) other witnesses to contradict them on this point, my defence — though it be that the land m part of such specially reserved domain, and tiiouuh 1 prove it ne- ver so unanswerably — is not to avail me. If even it be so sworn that my agent ever did such a thing, tha result is to bo the same. Anv and every man, though not at tho time im- pIcA'' igmo, or expressing any intention so to do, mu.-i be shown by me (or by my agent, as the casQ may be) punctually and before witnesses, whenever and how often soevc- he may ask either ot us, what lands I claim to hava specially reserved for my do- main. Or else, I may find him hereafter bringing up his two witnesses, to prove that we would not do so ; and thus cutting away my defence to any claim ho may nuike to any land whatcvet, that he shall choose to claim of me. It is hard to think that such a clauso can be meant in earnest. The land may be part of my reserved domain, beyond any kind of quchlion ; not a stone's throw from my manor house; but tho Judge is take it from me, it' it only be sworn by two witnesses, whom I cannot on tha spot contradict by others, that I or my agent ever refused to .show tha plaintiff my reserved domain, or did not show him that land as part of it. The depositions may be false ; but I have no right to insist on their being taken down in writing, to help me in a prosecution for forgery. I do not say, there is a Judge in Lower Canada, who would refuse to let me take such evidence in writing. I believe the Judges would be better than the law. But law and Judges alike ought to bo above suspicion as to purity. The IJill that leaves to the Judge such discretion as must expose hira to suspicion. Ought never to be law, But lastly, to make it impossible to question tha intent of this part of this Bill, its fifteenth section (the last aflfecting this [particular part of it) runs thus : — " XV. And all judgments rendered upon a de- " mand for a concession, cither by the Superior Court " or a Judge thereof, or by a Circuit Court, Bhall ba " final and without appeal." For anything over fifteen pounds currency, as I have said, I have my appeal, first from the Circuit; Court to the Superior Court, and then from the Su- perior Court to the Court of Queen's Bench. For anything over fifty pounds currency, I must be sued j in the Superior Court ; and have my appeal to tha li Qomb's Bendi. For tajthiag ortr 6re bnbdred pounds sterling, I h»T6 my appeal to Her Miyestjin Her PriT/ Council. In any omb but this, invoWing mj real estate or rights in future, be the amount never so small, ntiy appeal lies of right to that high tribunal of last resort. But, under this bill, bj this one procedure, my land, the land I hold by grant from the Crown of France or of Great Britain, it may be under the direct sanction of the Legislature of the Prorinee, may be taken from me without legal summons, without written pleading fy led or evidence taken, by any single Judge, summarily, finally, with- out revision or appeal forever. Is this French law ? Is it English ? Can it ever be Canadian ? I have arrived at the second part of this Bill ; whicii purports to provide for the Reunion to a Seignior's Domain, of lands granted to censitaires but not by the latter duly settled upon. This part of the Bill covers frona the sixteenth to the twenty-eighth sections, both included. The sixteenth section reads as follows : — " XVI. And in order to facilitate the reunion to " the domain, of such lands or parcels of land, in " the cases provided for by law, and to render " such reunion less expensive to the Seigniors and " to the censitaries — Be it enacted, that any Seig- " nior, may by one and the same action or de- " mand, in the form of a declaratory petition, " (requeie libellee,) sue and summon beforo the " Superior Court, silting in the District in wiiich " such seigniory is situate, any number ol persons '' holding lands in the said Seigniory, on the con- " dition of settling on the same, and of keeping " house and home ( tenirfeu et lieu) thereupon, " and who shall have failed to perform any one " of the said conditions, and to demand, in and by •' such action, the reunion to the domain of such " Seigniory, within such reasonable delay as shall " be ordered by the Court, of all the lots of land, " in respect to which such condition or conditions " shall not have been fulfilled ; and it shall be " lawful for the said Court, to proceed and lo " give such judgment in the action as to mw and " justice shall appertain, with regard to the rj- " union of all such lots of k-,id to the domain of " the Seigniory in which they are situate." Fully to show its purport, some remarks may be necessary. The two arrets of Marly gave the habitant desirous of becoming a censitaire a certain right of procedure against the Seignior ; and gave the Seignior a certain other right of procedure against the censituire. The censitaire by the latter of these two prcccdures could be turned out of his holding, without summons, upon the certificate of the cure and captain of the cote that he did not keep hearth and home upon it. Now, I do not ap- prove of that summary proceeding. I do not want to go back m any respect, to the past. Most surely, I do not want to revive this procedure. Tiie present had need be made better for all ; not \for8e forany. But what is it proposed by this lill, to enable the Seignior to do against his censi' taire ? After the proposal to let a man who has no right to my land, take it from me against my will, by petition to one Judge, summarily and without appeal ; what am I to be empowered to do ■with the censitaire, to whom I granted land on ex- press condition (among other things) of settling & iiTing on it, but who oaa failed to perform wm contract on the faith of which I so granted 1 Bj this section I am to have the great privilege of being allowed to sue any member of such default- er, censitairex, if I please, in one action ; but this action must be before the Superior Court, where written pleas and written evidence are rights at common law. I have heard of persons, thankful for small mercies ; but I never met with a well authenticated case of a man thankful for no mercy at all. I. his privilege is one, of not the very smallest practical value. If I have not it now, the reason is not r^ore to be traced to the techni- cal difficulties in tne way of such a procedure, than to the consideration that it was never worth any man's while to try to overcome them. It is easier and safer to sue five hundred men — each on averments of fact affecting himself only, — by five hundred several actions, than it would be to sue themjall by one. What sort of a requete libellie could I bring into Court, to turn out five hund. (\ censitaires, for failure by each to settle on his hi; 'J 1 All I could do, would be to write out|the substance of five hundred separate declarations, one ■'.,' 3r another, each complaining of one, but all on the same paper. My requete would be only five hundred different requetes tacked together. And I should just ha\ o to serve a o.ipy of the whole on each man, instead of serving on each man no more than the one requetr that proj erly concern- ed himself. Would it not be simpler to bring each action separately 1 Besides, if 1 brought them all in one, I should have a most unmanageable action on my hands ; and -for it is more than doubtful whether [ t..u!d porsiDly get judgment against any one or more oi the five hundred, till the cases of all should be ready for final hearing — I should further be toleraH'y s"re to have the whole of my proce- dure hung up before theCiurt for a somewhat mto« lerable tenu of time. By our system of procedure, as it stands, (and I see no proposal here, to alter it in this respect,) any one of several defendants by pleading would delay the suit ag'inst all. But supposing that difficulty avoided, this proposal still gives me nothing ; for I had better (on other grounds) brin^; my five hundred suits than be hampered with one unweildy pronsdure against five hundred. In the days of the French system things were very different in this respect. Then, the proceeding under the second ariet of Marly, against the censitaire was summary as heart of man unfriendly to the censitaire couid wish. Then, the Seignior came before the Intendant, with two certificates against any number of cemi- taires ; and the Intendant, if to minded, could make out his order against them all, without ever asking them what they had to say. If disposed to be more considerate, he would summon them ; one or more would perhaps appear ; and on their appearance, or default, as the case might be, judgment would go, as readily and unreservedly against those who might not appear as against those who should. These things were common then. It is well, that they are not so now. The procedure of our Courts, the law, is not such now, as that any man can turn a number of men out of property, without first proving bis case distinctly against each. And this being so, it is no boon to tell him that h? can sue any number of men, for different causes of action, by the same suit. A suit against each is bis best course. ci^ 51 ranted 1 By privilege of such default- tion ; but this ;:Jourt; where are rights at ions, thankful with a well 1 for no mercy not the very ! not it now, ,0 the techni- a procedure, never worth me them. It ed men— each elf only, — by it would be of a requete turn out five ich to settle on write out|the claiationsjone one, but all on il be only five gether. And the whole on each man no [erly concern- r to bring each one, I should on my hands ; jtful whether nst any one or e cases of all should further J of my proce- iomewhat into- n of procedure, here, to aher it defendants by 'inst all. But this proposal etter (on other suits than be oedure against French system jspect. Then, riet of Marly, ry as heart of e could wish, the Intendant, umber of censi- minded, could 1, without ever f. It disposed ummon them ; ; and on their ase might be, 1 unreservedly tear as agamst were common t so now. The i not such now, r of men out of case distinctly it is no boon to ter of men, for same suit. A The Seventeenth Section provides for the mode at Summon! ; and calls for no particular remark. The eighteenth Section ie as follows : — '• XVIII. Whenever the said Court shall be of "opinion, that the lands the reunion whereof to •' the domain o( the Seijjniory in which they are " situate, is demanded, ought to be so reunited, it " shall be the duty of such Court to order, by an " interlocutory judgment, that on a day which *' shall be at least six months from the date of the " said judgment, the said lands shall be so reunited " to the domain, unless some party interested shall "then shew to the satisfaction of the said Court, " that the reunion of such lands, or any part Ihere- " of, ought not to take place ; and it shall b-; law- " ful for every person so sued to prevent the re- " union of his land to the domain, by proving that " he has, within the delay allowed by such inter- " locutory judgment, fulfilled the conditions of his " deed of concession, without however being " thereby exonerated from his share of the costs " incurred in the action." The differences between the two modes of pro- cedure are beginning to appear. In that agf,inst me, in the procedure by which any man shall demand (for himself, or for his mi- nor child of a day old) to have land that is mii , — or at any rate not his, — he gets a judgment at once, on the day he comes before the one Judge of his choree, if that judge thinks proper. He may get such judgment, though I may have had no such summons as in any other kind of case the law would assure t'' me, and though I be absent — ig- norant of the fr ct o. ais demand. And I can have no appeal ; no help, even though the Judge may have made the most obvious blunder. But, when I have a right in strict law, to get back my land, because the man who took it of me has not done with it what he bound himself to do — ori express pain of forfeiiure of the land — as the condition of his having It ; after written plead- ings fyled as of righ'i, with all delays of right, evidence taken in w.i'iting, argument by Counsel before the Court, (the Superior Court — no one Judge can be trusted here,) after all the cost, trou- ble and delay of all this, I get, if the Court are satisfied that 1 am right — what ? Not a judg- ment upon my demand, on the day the Court are so satisfied. No such thing. " Any person," in the other sort of case, with no legal right, would get a judgment asjainst me, — a judgment giving me no more delay than the one Judi^e giving it should appoint, — a judgment executing itself the instant that delay should have expired, were if 3 week, or a day, or an hour. — a judgment I could not appeal from. But here, with my legal right, after due suit decided by a full Court of high ju- risdiction, I am to have a mere Interlocutory judg- ment, to the effect, that as I have a right to the land, it shall on a day " at least six months" off in the future, and as much longer as may be, be- come mine ; that is to say," unless" by that time the Defendant — no, not the Defendant — " unless lome party inttrested," no matter who, no mat- ter how, shall then (as by this clause he may) put himself into the suit, and lyle new pleadings in the suit, bunkum pleadings, if he be so minded, — alleging that for any kind of reason imaginable my declared right ought not to be accorded me. In which case, I, perhaps, ought to be thankful iwt at common law i can answer his i/leadinga, take down and sift his evidence, argue my cau^e again, and after such further cost, trouble and de- lay as may be, perhaps get my right at last. As the law stands, without this Bill, the Seig- nior can sue his ceruitaire on this ground of com- plaint, any day ; and when he nas proved his case, is entitled of right to final judgment. He does not so sue, because itjis not practically worth his while. This part of this Bill pretends to help him ; offers him the boon of leave to sue any number at once, by way of having on his hands a case that never can be got through with ; and as- sures him in any case, of some extra loss of time and annoyance, to say the least, in the conduct of his cause. The next Section, the nineteenth, proceeds : — " XIX. — A copy of every such judgment so ren- " dered shall be published in the Canada Gazette, " or other newspaper recognized as the Official " Gazette of the Province, in the English and " French languaMs, at least three times during the " period which shall intervene between the date of " the said judgment and of the day fixed therein for " the reunion of such lands to the Seigniorial do- " main ; and such publications shall not be made " at an interval of less than four weeks, nor more " than SIX weeks from each other." My procedure is to be simplified and made cheap and easy. And I am to be thankful that it is so. But, when I have got my Interlocutory Judgment, in place of the Final judgment which the law as it stands would give me ; and while I am waiting my six months or more, to see whether the defendant or any one else will amuse me with a new contest ; my patience is not to be too severely tested. I am to do some- thing, — of course, at some cost. I am to adver- tise in the Canada Gaiette, in both languages. Unless I do, I cannot go on ; for of course the defendant will not. Therefore, I must. And if I have put my five hundred censitaires into one action, I may perhaps put them all into one ad- vertiFement ; and in the end have the luck to ge back the five hundredth part of my costs from each of them. Till that end, I am to amuse my- self as best I may, over their outlay. The twentieth and Twenty- first Sections make detailed provision for the fyling of op- positions by the Defendant's creditors, and others ; that is to say, for the putting of record before the court, of all objections that any one (claiming to be interested) may be disponed to urge against the Plaintiff's getting back his land, as prayed for. Of those details 1 need not speak. Bull cannot but remark, eft T^as^an/, on the fact that in this my procedure, my opponent's creditors — every one claiming on or through him — can come in, to embarrass or defeat me. When the question was, as to the taking away of my land, no creditors of mine, or claimants through me, were allowed a word. The obvious idea pervadinj the whole Bill, is, that the Seignior is no proprie- tor, has no rights, can have created none, upon his land, given him by the Crown ever so unre- servedly ; but that the moment any part has pass- ed through him to another man, (albeit subject to a condition, the non-fulfilment of which is admit ted to have wrought a forfeiture,) that man be* came its absolute proprietor, and his creditors, and all claimants under him, are to be cared for. Even I, who have a written contract {iving Am 52 the right to resume it, cannot get it back, but by a most tioublesome and dilatory litigation. Un- der the old law as it stood before the cession, I might have got it in an hour, by an apniication that might even be (and sonnetimes was) exparte. It may not be so now. It ought not to be so. My clients do not ask to have it so. But if noth- ing summary is to be done for them, as of old it was to be, and was, done ; why is everything summary to be done against them, as of ,old it might not be, and was not 1 The Twenty second Section reads as follows : — " XXII. On the day fixed by such Iiitorlocu- " tory Judgment, or on anv other subsequent juri- " dical day, the Court shall proceed to order llio •' reunion to the domain of the Seigniory in which " they are situate, of such lands as ouglit, accord- " ingto law, to be so reunited, and to the reunion " whereof no op])osition shall have been made ; " and to declare the Censituires who took them d " litre de concession, or who previously held them, " to be for ever deprived of all rights of property " therein." If, then, no one claiming to be interested shall come forward with an opi)osition, to make mc fighl another battle, — if neither Defendant nor any one else pretend ai'ylhing against me, — if nothing in any wise untoward intervene, — 1 am at last to have my Final Judgment. But — says the Twenty third Section : — " XXllI. In any case in which the Court shall " maintain any one or more of the oppositions " made to the reunion to tlie domain of the lands " the reunion whereof is so demanded, it shall be " the duty of the said Court to order tlic Sheriff of " the District to proceed to the sale of the lands or " of sucii of the lands tlie reunion whereof to the " domain is so opposed, subject to such charges " or servitudes as may have been established by " such oppositions." If any man show {\\c Ccn^itaircAo have done any act of a nature to give him, such opposaut, a claim or right over the land — and every such pre- tension advanced, I must contest at my own cost and risk, unlosj 1 make up my mind to let it take effect, — the land is to be sold ; but sold at my expense, for of course the Defendant will make no outlay for such sale. By the Twenty fourth Section, the sheriff is to sell in a certain manner ; and by the Twenty lil'th, he is to make his return within a certain delay ; but, of course, I am at the expense of all his doings. The Twenty-sixth Section at last lets me do a something to jnotecl niyscll, if I can, " XXVi. Tile Seignior, plaintitf in the cause, may file in the odice of the said Prothonotary, at any time between the date of the jud^^menl ordering such sale and the expiration of tli(; two days inimi'diately following the return made by " the SherilFolhis proceedings thereon, an oppo- " sitioii djin lie cunscrvcr, in order to obtain pay- '• ment of the arrears due to him upon any land so " sold. " If arrears are due to me on the land, as pre- sumably they will be, I too may fyle my claim in Court, for payment out of any money, that the Sheriff (after paying himself) may possibly have to pay into Court, from the proceeds of the sale. This is certainly some thing ; but not a great deal. The Twenty-seventh Section says :— . II «, unless by reason of some unequivocal grant made in his favour by the Seig- nior (whichever it might be) there and then held, by presumption of law, to be such owner. Since the abolition of all feudality in France, the question has there assumed a new aspect ;^but the old controversy remains unsettled. On ihe assumption that the streams belonged to the Lord of the Fief, they must have passed, under the le- gislation which destroyed the Seigniorial Tenure, to the censitaire of the land adjoining. On the assumption that they were the property of the Lord of the Justice, they must have passed to the State. As of old in France, the State has its vantage ground, in all controversies with the in- dividual. But, notwithstanding this, the contro- versy cannot be said to be yet settled eith«r way. In Canada, the state of things has always been, in these re8pect8,I[materially different. The Seig- nior, grantee of a Fief, was not always constitut- ed a Justicier ; though he was so in most cases. But the Justicier at least always held a Fief, and his /usiice and ine/ wpre co-extensive. Every Seigneur Haut Justicier was, therefore, in one quality or other, originally the proprietor of these waters, as well as of the land, within the limits of his Fie/. Of course the navigabi • rivers (though in some grants of early date expressly given away) were by virtue of the public law, and have remained, the properly of the Crown, whether of France or of Great Britain. Those here who hold that the non-navigable streams were orij^inally tho property of the Seignior in his quality of Justicier, may hold further (as was hinted in the case of Boissonuault us. Olivii) that by reason of ihe Crown alone exercising jurisdic- tion of any kind under our public law, such right of property has vested in the Crown ; though such inference, by the way, admits of grave con- troversy. Buteven adtnitlin^ such inference, we come to the conclusion that the Crown, and not the cc/(s'i/((i>(! must be the true owner o! these wa- ters. If, on the other hand, there be any lliiw in this reasoning, — if Ihe property went to th'^ i^cig- nier as grantee ot the Fief, r.-id not as eraiitee of the Justice,— ov il, going to him in hishitteni'iali- ty, it be not held to have passed Aorn him in con- sequence of his merely losiiiij the riuhts of juris- diction that were once attached to it,theSe;{:iiior, and not the Crown, » auch owner. On eirhar supposition, the cemitirirt (unlaaa his grant be in such terma as in law may be held to pui title to him) i» net luch owner. But the case doca not even reat here. Nutn« berg of the granU to Seigniors, aa I hare had oc- casion to observe already, in express term* give them the property of cerUin rivers, or »t 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 Seigniory of Rimouski ; and it in so many words grants " the river Rimouski" and so much land adjoining it. There are some scores of such grants ; and scores of others that give rivers and streams in general terms ; none, that imply the idea of not givmg them. Now, in cases where the grant of streania is mentioned in the instrument of concession, it must be clear that the property in such streanaa granted was not given as an incident of the /usaid its full value, when it shall be so taken. — It is not to be taken first ; and he left afterwards to prove the fact and amount of loss thence result- ing, and to pray for an uncertain indemnity, which he may very likely never succeed in getting. Yet this is what this section proposes to do, as to this matter. The thirtieth section proceeds to the kindred subject of the right of banality ; and reads thus : — " XXX. The right of the Seignior to require ihe " cendtaire to carry his grain to the banal mill to " be there ground, on paying to the Seignior " the ordinary toll for the grinding of such grain, " shall hereafter be considered as applying to no " other grain than such as is grown on the lands " held d litre de cens in the Seigniory in which " such banal mill is situate, and is intended foi " the use of the family or families occupying the " said lands." Now this right of banalitj', I 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 since) exists in Canada by virtue of the law, and independently of contract between Seignior and censitaire ; although it did not exist in France within the local range of the Custom of Paris, unless by virtue of such contract, or other sufficient title ; and it involves the right on the part of the Seignior, to prevent any other mills than his own, from being put or kept in operation within the limits of his banal- ity,— to prevent any miller beyond those limits from beat! ni up for custom within them, — and lastly, to oblige Wis ccnsif aires to bring their grain for grinding at his mill, on certain fixed terms, as to price and otherwise. Under the Custom of Paris, I have said, this right did not exist at com- mon law ; but it could always be enforced, and was enforced, to the letter, whenever any cend- /oi're was shown by his deed to have agreed to it{; and it could even be enforced, and was enforced against all the world, whenever the Seignior could show what was ciUed a " Hire valuble^—a suf- ficient title to warrant such enforcement. I do not here go into the detail of what constituted such litre viilable ; the consent or recognition of such and such a proportion of all the censitaires, and so forth. The only important point, here, is the fact, that in Canada, the state of tilings, as ex- isting under the Custom of Paris, was altogether changed, by two leading arr«/s of a legislative character. The first of these was an arret or decree of the Cornell SupSrieur de Quibec (a body undoubtedly capable of making such a law) under date of the iBt of July, 1675. This arrd ordained," that all mills, whether water " mills or wind mills," — by the Custom of Paris, no wind mill could be presumed banal — " which " the Seigniors shall have built or shall cause to " be built hereafter, shall be banal." The other was an arret of the King himself in his Conseil d'etat or Privy Council, under date of the 14th June 1686, which ordained " that all Seigniors, " possessing fiefs within the limits cf the said " country of New France, shall be held to cause " to be erected banal mills within a year after pub- " lication of the present arret ; and, the said delay " expired, in default of their having so done. His " Majesty permits any persons, of what rank or " condition soever, to build such mills, at'ri- " buting to them to that end the right of bana- " lity, and forbidding all persons to disturb them." By force of these two arrets, every Seigniorial mill was constituted a banal mill j and every Seignior was declared to have the right of banality it, it is in respect of such mill. He might lose true, by non-user ; and in such case any one else might acquire it. But unless he did so lose it, it was by law his. And as to his losing it, I should perhaps say a word or two. To anyone not conversant with Lower Canadian law, the second of the two ar- rets I have read, may seem to imply that a Seig- nior who should not have built within the year after its promulgation, would ipso fact o lose the right. But such is not, and never was held to be, its meaning. Like the first of the two ar- rets of Marly, it merely enjoins a duty — so limiting to a certain degree a pre-existent right which it admits ; and after such injunction, it pro- vides a remedy against the possible case of failure to obey. That remedy consisted, in the right to be given to any one else to build mills, and so acquire the banality of the Seigniory, to the ex- clusion of the Seignior. Xi 11 this should have I been done, the Seignior, though he might have no I mill in operation, retained his right to have such mill, whenever put into operation, held a banal mill. And any other person, in the meantime wishing to avail himself of the remedy provided against the case of the Seignior's neglect to build, had first to summon the Seignior by legal process, so as to establish judicially the fact o( his being in default, and thereupon to obtain a judicial sen- tence forfeiting his right, and attributing it to himself the plaintiflT. It has been argued, with much ingenuity, that; the right of banality, as introduced into Canada in 1675, did not comprehend (as in France, wher- ever existent, it undoubtedly did) the right to pre- vent the working of any other mills in the seig- niory. The arret of 1675, after the words I have already cited, declaratory that all mills built or to be built by seignors " shall be banal", proceeds thus : — " And thereupon, that their tenants who " shall be bound by the contracts of concession " that thoy shall have taken of their lands {qid se " seront obligez }iar les litres de concession qu'ils " auronl prisde leurs ic?Tes) shall be bound to take " their grain there to be ground, and to leave the " same there at least twice 24 hours, alter which 57 " it shall be lawful for them to take the same away " if not ground, and to take it elsewhere for grindr " ing," &c. And it has been urged, that the only banality granted here, is a banality granted against censitaires who by express stipulation to that ef- fect in their deeds should have subjected them- selves to it ; that the right was therefore not an absolute right of the yje/^, but a mere right to en- force a certain contract, if mads. On which lat- ter supposition it is further urged, that it could not go the length of preventing any one not bound by such contract, from setting up a mill within \hcfief. This view, however, has never been maintained judicially ; on the contrary, in the last case decided upon the subject, — that of Monk vs. Morris, (see L. C. Reports, vol. 3, p. 3) decid- ed quite lately by the Superior Court at Montreal, — though urged with the utmost ability by the defendant's counsel, it was over-ruled by the Court. And all former decisions, before as well as since the cession of the country, are against it. And with good reason. For, if such wer j the meaning of the arret, it had — so to spealc — no meaning at all. By the Custom of Paris, any cerisitaire who had bound himself to grind at the Seignior's mill, was so bound, whether the mill was or was not banal. To say that a mill was banal, was to say a great deal more than that censitaires, thereto bound by special contract, must go to it. The mill need not be banal for that. The word banal was a v^-ord, the meaning of which was well known, and of wide application. There were in various parts of France, banal rights of various sorts — banal ovens, banal wine presses, and so forth. And the term everywhere imported the ban, prohibition, or exclusion of all rivalry •within the territorial limits of the banality. It everywhere imported also the holding all of who came within its range (irrespective altogether of contract) to the obligations it imposed. No censi- iaire within a banahty could escape from it. The latter part of this arret of 1675 regulated certain details of procedure and so lorth, as regarded those obligations. Butit cou'd not, and did not import the freedom cf an- person bound by a deed of concession, — that is to say, of any censitaire or holder of land under such a deed, — from such obligations. On the contrary, its very letter imports precisely the reverse. Now, the clause of this Bill which I read last, this thirtieth section, does not indeed in terms profess to abrogate this right, of exclusion of other millers from a seigniory. But — and more espe- cially as read in connexion with the preceding section — it tacitly imports such abrogation. By the twenty- ninth Section, the Seignior's water- powers are declared to belong to the censitaire, and all agreements by the censitaire to the eflect that he will not build mills on his land, are declar- ed null. By this thirtieth Section, the right of banality is spoken of as though it were a mere right " to require the censitaire to carry his grain " to thj banal mill." Such enactment and recital once passed, it is clear that any one could build any sort of mill ia any seigniory ; that this f)art of the existing right oi banality would be ost to the Seignior. And it is obvious to ivtnark,that this is really the only ))art of his right wor'di keeping. It is that, through which alone hj can pnictically be 6' aid to have any right at all. In former days, Seigniori ns(»d to sue centilaires, to oblige them to grind at their mills, or pay tne toll of what they ground elsewhere. But those times are past. It is worth no man's while so to sue now. And no man does so sue. The Seignior's only hold is through his ownership or reservations of water- powers, and his right at law to stop rival millers from competing with him. This, it is now pro- posed most effectually to take from him. It re- quires to be paid for, before it is ho taken. This clause goes even further. It would give the censitaire the legal right to evade the grinding of any of his grain at the so called banal mill ; for he would only have to sell his own grain and buy other, or even to exchange it away ; and he could then say, the grain you claim to grind, is no grain grown here for my family, — what I raised here was not so intended, and I have parted with it, — this that I amusing, I got elsewhere. The eva- sion is of small practical moment; because such suits are never likely to occur. But it shows the spirit and tendency of the Bill, — that, besides giv- ing every one the right to build rival mills to mine, it should thus go on to give every one the power of evading the nominal obligation which it professes to leave in force, to give my mill a certain mea- sure of preference. I repeat ; I am in no wise contending for the maintenance of banality in any shape. I might, of course, say with truth, that the banal mills of Lower Canada grind at a considerably lower rate than obtains any where in the country, beyond the limits of the Seigniories ; and that they do their work well, to the satisfaction of those who use them. Indeed, the Seigniors can be compelled at law to keep them in good order ; are under stringent legal liability in respect of rate of toll, and quality of grinding. But I have nothing here to do with all this. I am defending no part of the existing system. I only insist, that its pe- cuniary advantages to my clients, are not to be taken from them piece-meal and by indirection, leaving them to prove their past existence and value, and beg for tardy, inadequate, uncertain compensation afterwards. I have not quite done, howe ver, with this mat- ter of banality. The Bill contains two more Sections, the Thirty-first and Thirty-second ; which I must read, lest I should be thous^ht to paraphrase or represent them otherwise than as they are : — " XXXI. Every Seignior having niore than ",one hundred censitaires holding lands in his cen- " sive, and who, alter the expiration of two years " from the passing of this Act, shall not have '' constructed at least one banalmiW for the grind- " ing of the grain in h'^ ?.;s"iory, and every " Seignior who, alter tne expiration of two years " from the period in which there shall be more " than one hundred censitaires holding and settled' " upon lands in his censive, shall not have con- ' structed such mill, shall, as well as his heirs " and representatives for ever, ferfeit his right of " banality in such Seigniory ; and it shall be law- " ful for any person to construct one or more " mills for the grinding of grain in the said Seig- " niory, and to grind or cause to be ground in any " such mill all grain brought thereto, without be- "ing 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 .he 58 Ill ? " rifht of bualitj in reipect to any mill ra con* " ttrueted. " XXXn. And whenever ■ btnal mill ihall not " b« in proper order, or ahall be iiiiufRcient for ** the grinding of grain belonginf to the etntUairn " of the Sei^nior^, or of the part of the Seigniory " in which It iaiituate, tny eentitaire settled upon " any land in such Seigniory shall be entitled to " sue the Seignior of such Seigniory before the " Superior Court sitting in the District in which " such mil) is situate, for the purpose of oblieing " him to repair such mill, or to place it in such a " state as will make it sufficient for the wants of " the censitairet ; and it shall be lawful for the " said Court, 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. Every one may build mills to compete with his. No one need prefer his mills to any others. But they are still ironically called banal mills. And enact- ments of regulation are proposed as to such mills hereafter to be built ; as though it were possible any should be. And further enactment is pro- ]>osed, to make it clear that the Seignior's obliga- tions as to his existing mills are in no wise to be abated. Banal in nothing but 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 purpo- ses of annoyance to him by any censitaire. With no Luld left to him upon his censitaires, every one .\> them is to have firm hold on him. Again I say, all this is of a style of legislation that cannot be. We arrive at the fourth part of the Bill ; that which treats of honorary rights, pre-emption, (re- trait,) rents and hypothecary privileges ; extend- ing from the Thirtv third to the Forty second Sec- tions, 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— such as they are — they can but secure the common immunities, as regards pro- perty and personal rights, of all others their fel- low subjects. They ask only, in all respects to have the same measure of right dealt forth to Censitaire and Seignior equally. The Thirty fourth Section is as follows : " XXXIV. The right of conventional pre-emp- " tioii {retrait conventionnel) shall not be exer- " cised in respect of any immoveable property '• sold under a writ ot execution, {jxir decret,) or *' other judicial authority, and it shall not be exer- ' cised in the case of any such immoveable pro- ," P'"'.^y ^"^'"S sold in any other manner than by ^' judicial authority, unless the Seignior prove that '■ the said sale is taintod with fraud." To part of this clause I have no i "jjecfion to of- fer. That property be not subject to retrait, when publicly sold under process of l.iw, is an en- actment, which my clients would no; be disposed to complain. The remainder of the clause, how- ever, they do com])lain of, strongly. To make the whole matter clear to [Members of this Honorable House, not conversant with Low- er Canadian law, I ou^jlit, however, to go into some explanation of what this retrait is. By the Custom of Paris, when land has been granted a cent it is held fubject to ptTtnent of » rent—the reat stipulated in the deed — wnick rent, or at leaat that part of it designated as the e$ni properly so called, carries with it tods tt venttt ; or in other words, entitles the Seignior to a fine of one-twelfth oftht purchase money, whenever the land shall be alie- nated by sale or other contract equivalent to aale. The same kind of due accrues to the Superior Lord, or Seignior Dominant, upon land by him granted en fief ; but the fine in that case is much higher. Land granted en fief is charged with no annual feudal due payable to the grantor ; and for that reason among others, is more heavily burthened as regards casual dues. The mutation fine on its sale, IS fixed 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 characterised both kinds of grants. The holder had no right to alienate, without his Lord's leave, the Lord — owner still of the land granted — being entitled to insist on hav« ing no Vassal or Censitaire on his land, 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. Partly as a remnant of this old right of pre venting alienation, and part- ly as a means of preventing fraud as to the a- mount of the mutation fine, the Custom of Paris gave the Lord, the right, upon the sale of nfief held from him, either to come in for the quint or to say, I am not satisfied as to this sale, and de- cline to take this buyer for my vassal ; instead of accepting the quint offered me, I take back the fief\ here is the amount of what you call the pur- chase money, with that of your reasonable expen- ses ; and now, the fief is mine. This retrait fio' dat was of common right throughout France. And many of the Customs gave the Seignior the same right, in reference to land held of him d cens, so that when the censitaire sold it, the Seignior might in just the same way exercise what was called the retrait roluitr. 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 him from stipulating it in his grants made en censive. Whenever he did so stipulate, he enjoy- ed the right. And such stipulation was of course common enough. The obvious value of the stipulation, as a pro- tection against fraud, — more especially where, as was thecase in Canada, lands were commonly granted low, and Seigniors looked for their future wealth mainly to the proceeds of their banality and lods to accrue thereafter as the land should ac- quire value, — made the stipulation here, from the earliest period, an almost universal usage. And such It has continued ever since. The right so stipulated is commonly termed, as in this section of the Bill, thut 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 censive is sold luuler judicial autho- rity, this stipulated right shall not be exercised. The contracts establishing it make no such excep- tion. But at the same lime, as the publicity of judicial sales must alwavs enable the Seignior to guard against fraud by bidding at the sale, the vinhioH relrait afterwards, is iiot one that he ought, 59 «A cqiiiUbte gtounit, to htre. And I know of no S«ifnior who would care to object to its being done tway with, in that case. But the Section foe» much further. It would enact, that though it is nnatter of binding contract that this right is mine, I am not to have it, to any practical use whatever. I am not to exercise it, unless I prove the sale fraudulent. Why, if I can prove fraud, I can of course at law have my lodi et vtntet, from the buyer, calculated on the value of the land — its true price. Nine times out often, it would better suit me to have that payment, than to buy in the land. Besides, the end for which I made the contract, was to guard against fraud that I might feel sure enough of, but could not prove. Nine times out of ten, I should very likely fail to prove the fraud ; however sure I might be that the price stated was a fraud upon me. This re- tratt is the only reliable protection I can have. I stipulated it, lawfully. It is ray legal right. — Why is it to be taken away 1 Is it said, that like others of my rights of pro- perty, it is a kind of right, which had better not be 1 Take it, then ; but indemnify me first, for its loss. I have no right to object, I do not object, to any changing of the law for the public good ; but I protest against such changes involving me in ruin. The thirty fifth Section carries ♦he power of repudiation of contracts as regards this matter, further still. It reads— " XXXV. Any sum of money, or other valuable " thing, which, alter the passing of this Act, shall " ba paid or given to any Seignior, either directly " or indirectly, to induce him to refrain from ex- " ercising the right oiretrait in the case of any "sale or mutation effected within his ctntive, " shall be recoverable, with costs, by action before " any Court of competent jurisdiction." Concious of fraud, fearful of my suit — whether for full loda et rentes, or for the exercise of my retrait — the parties indemnify me. I am satis- fied ; so too are they. But this bill is not. It puts into their power to recover back f:om me the payment 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 1 let the party pay me, without the cost and discredit to himself, of such suit ; I give him the power to mnlct me in costs for my follyf in a suit to get back his money. I find it hard to think of such a clause, as part of a seriously proposed enactment. Its irony is too cutting. The next following sections, the thirty-sixth and thirty.seventh, are clauses of extreme impor- tance ; and again, extremely open to objection, as injuriously affecting my clients' vested interests. They read as follows : — " XXXVI. No censitaire or occupier 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 as an annual " seigniorial rent, to fall due hereafter, any sum " of money or other value exceeding the sum of ■' two pence currency for each superficial arpent ■" of the land occupied by him d litre de cens : " notwithstanding any stipulation to the contrary " made by himself or by his predecessors." " XXXVII. AH seigniorial dues payable annu- " ally in personal labour {corvees,) grain or other- " wis* than in money, iball hereafter be paid ia " 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 cnarged, in the same manner " as rents payable in money." By a former clause, the fifth, — as I have shown, — it is proposed to fix a blank price as that at which 1 must part with my lands not as yet con- ceded. That, at all events, though affecting my vested rights, was in show a project of prospec- tive 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 here are clauses referring to land that I have parted with upon terms long ago established, by contracts then freely made under legal sanction. Those who then so dealt with me took such land, engaging to pay me a yearly rent of four pence, sixpence or perhaps a snilling, per arpent ; perhaps they agreed with me to pay in wheat, for the express purpose that the rent, be- ing made payable in a kind of food, the chief sup- port of human life, should nover thereafter mater- ially change in value. It is now proposed, by law to tell me, that though such was our contract I shall not have the benefit of it. I am not to get more than two pence currency payable in money, per arpent, yearly from this day forever. And on what pretence 1 Under the French rigime, it is said, few rents exceeded in amount, what was then the money value of a single pen- ny currency, per arpent ; though in fact some, by the way, did. Well, however that may have been as matter of fact, I have at least shown that there never was a maximum rate, fixed by law beyond which it was illegal to stipulate. I have, even shown, on the contrary, that in very troth as a general rule, every man in those days, as re- garded these stipulations, did just what was right in his own eyes ; that there were about as many different kinds of bargains made, as there were differences of disposition on the part of those who made them. Since tho^e times, land has become much more valuable ; some Seiguiories were not granted till after the cession ; a good many were granted a very short time only, before it. There are Seigniories, little or no part of which, under what I may call the police regulations of the French Government, was suft'ered to be subgranted before the cession. Many at that time had hardly a settler on them. Since then, what has been the course of the Government and Legislature and Courts of Law, that Parliament should now be called upon to reduce the rates at which I or my predecessors may have granted any portions of our property 1 If in old time, the control of the Intendant would at all events have tended to keep down our rates,it at least tended to force men to take more of our land than thev otherwise would have done ; and so would have helped off our land sooner, and made it sooner valuable to us. If granted years ago at lower rates, we should ever since have been in receipt of revenue from it, casual as well as fixed. As the case has been, from the date of the cession, enormous and most imniovi- deut grants of land in free and common soccage have been constantly goin? on. Great difficul- lies — not precisely legal difficulties, to be sure, 60 iM lif but still real (liiricuItieB — have been thrown and kept in the way of extending nettlement in the rear of all the seigniorial country. The emigrant population from the old world were drawn by a variety of considerations to the free and common soccage lands of their countrymen. The French Canadian population would not push buck into the forest, without their churches and ciirSn, In- stead of being driven back, as of old, they were kept under special attraction, in their front settle- ments, by the singularly unwise policy which long discouraged and retarded the establishment of new parishes, the building of churches, the or- derly settlement of the clergy of their faith in the rear of what was professedly the land reserved for their especial settlement. In the meantime, ■wliile much of my land has thus lain unproduc- tive, the value of money has been falling, and the value of land rising. My predecessors and my- self, left free to make our bargains with whom •we would, and as we would, have contracted with others eiiulilly free, und on terms contraven- ing no law whatsoever, past or present. By what show of right are such past contracts to be touched 1 If touched at all, on what show of reason, are they to be cut down to the measure of this two- pence currency per arpent ? U the two sols said to have been seldom exceeded a century ago, cannot now be maintained as a maximum for contracts of yesterday, the process of doubling such two sols does not give us an amount, accord- ing to the values of these days at all equivalent to the two sols of the year 1730. Besides, with what pretence of right, fix a maximum in money, at all? Because no one knows what may be the real value of twopence currency, a few yaars hence ? Because the va- lue of money isjust now changing more than any- thing else whatsoever ■? A bushel of v/heat will go as far to sustain human life, iifty or sixty hence, as now. But two-pence curency in mo- ney ! Who knows what that may be worth, — even a few years hence ? When men have free- ly bargained for payment in kind, of set purpose to avoid this risk, what pretext can there be lor applying to their conventions that very money- rule, which they had a right not to adopt, and de- liberately did not adopt, as the rule of their trans- action 1 True, the change is one to cause heavy further loss to my clients. But is that reason enough ? The thirty-eight and thirty-ninth Sections pro- pose to enact as lollows : — " XXXVIII. No sale under writ of execution " (par decrel) shall have the effect of liberating " any immoveable property held d litre de cens, " and so sold, from any of the rights, charges, " conditions or reservations established in respect " ol'such immoveable property in favor of the " Seignior, but every such immoveable property " shall be considered as having been sold, subject " to all such rights, charges, conditions or reserva- " tions, except in so far as they may exceed those " allowed by the Section — of this Act, without " its being necessary for the Seignior to make an " opposition for the said purpose before the sale. " XXXIX. If, notwithstanding the provisions " of this Act, any opposition djin de charge be " made hereafter for the preservation of any of " the rights, charges, conditions or reservations " mentioned in the next preceding Section of this " Act, such opposition shall not have the efT.',* :' " staying the sale, and the opposant shall not " entitled to any costs thereon, but it shall be ; • " turned into Court by the Sheriff after the s.u, " to be dealt with as to justice may appertain. " Upon these clauses, in so far as they merely tend to obviate the necessity of putting in opposi- tions in order to the saving of Seigniorial charges upon land en tensive sold by the Sheriff, I have nothing to say. In connexion with the forty-first Section, I shall presently have occasion to speak of the limitation which this clause hints at, as in- tended to be wrought, in respect of the charges to be allowed on such land. The fortieth Section reads : — '• XL. The privileges and preferences granted " by law to Seigniors, to secure to them the pay- " ment of the Seigniorial rights which shall here- " after become due, shall only be exercised for " arrears which shall have fallen due during the " 5 years next preceding the exercise of such pri- " vileges and preferences. " At i)rcsent, they can be exercised for 30 years' arrears. And it may be hard to assign a good reason for proposing this piece of exceptional le- gislation ; uidess, indeed, it be such reason that it tends to the disadvantage of the Seignior. There is even a dash of the ex post facto in it, as in so many others of the clauses I have had to notice. — Secure in the existing law. Seigniors have refrain- ed from suing ; v/ell knowing that at any time within the 30 years, the arrears due to them would be recoverable as a debt having a certain known priority of claim. But they are to find out iheir error. Whatever amount of such arreari. they may have allowed to run, beyond the term of the last 5 years, they are not to be suffered to recover, as sucn privileged claim. Raudot, in 1707, suggested a new short term^ of prescription, against everybody. This propo- sal is against the Seignior only. And yet, one would be tempted to thintc that he is hardly the man to be so selected ; since h'S accruing clues fall in yearly, in such small amounts as to make it no slight hardship that he should have to collect them even for the time to come, (to say nothing of his vested right for the past) within the 5 years, on pain of risking their loss. It forms part of the plan, too, we must remember, to cut them down, in those coses where otherwise their amount might make them worth that sharp collection which this section would enjoin. Straws show the wind. In great matters and in small, it is not the Seignior who is to gain. The next Section, the forty-first, is in these terms : — '' XLI. — All stipulations in any deed of conces- " sion, new title deed or recognizance (titre-nou- •' vel ourecognitif) made before the passing of " this Act. in so far as such stipulations tend to es- " tablish in favor of the Seignior upon any land " conceded « litre de cens, with the exception of " land conceded as a town or village lot, any " rights, charges, conditions, or reservations " other than or exceeding the following, are with " respect to such excess or difference hereby de- " clared null and void, namely : " 1. — The obliuation to keep house and home " on the land conceded. "2. — That of surveying and bounding the land II . (I 61 ion of thia eeff..* ;f all not lull be, the Halt, rtain. " y merely in opposi- al charges ff, I have forfy-lirat to apeak iit, as in* liiirges to s granted the pay- ar- pents for a new banal mill, due payment lirst made, of course, the supposed payee being a wn- xituire. A likely thini<, the building ot a new banal mill ; after banal mills shall have been made what this Bill would make them. Is this style of Legislation possible 1 It is not true, the bold assumption, that the contracts thus all swept aside, are contracts that the liW can disallow. 'J'hey are legal ; binding. If ihey were not, no statute would be wanted to put them out of the way. They cannot be legislated away, merely because one of the two classes of men, parties to them, is more powerful tlinn the other. The last clause of this part of the Bill, is the forty-second ; and reads thus : — "XLIl. And whenever a Corporation shall " have acquired lands en roture and shall have " paid the indemnity (iildemnite) to the Seignior, " no /o(/.v c/ ot'rt/t.v shall thereaftei be payable on " any mutation of the same land." I say no more ot it, than this. As the law stands, if land held (2 ce/is be acquired by a Cor- poiation, the Seignior has his right to this indem- nity ; and if it be afterwards sold, he has his right to lods el rentes. This clause is the taking away of one thing more, — a smaller thing than many, — but something. It is in keeping with its prede- cessors. The fifth part of the Bill follows ; from the for- ty third to the seventy second Sections ; the por- tion of tbe bill which takes up the matter of the Commutation of the Tenure of lands held d ccns. The first Section of the Bill, it will be remem- bered, has projiosed to lejical the Acts, under which at ])roseiit Seignior and Ccnsilain can agree as to terms for such Commutation, and can car- ry into ertect their agreement, whatever it may be. These Sections contain no provisions of that character. The Censiluire individually, or the rciisiUiircaoi i\ Seignioiy collectively, may be willing to make their bargain witii me, and I with them. But under this Bill, no such thing may be. The terms of the transaction are all lixed lor us. And how '. By the forty third and forty fourth Sections, we are told that any holder of land en roture may commute his tenure, on paying in the way to be desigriuted by after clauses, the price of the re- demption of his Seignior's rights, — tliat is to say, firstly, of the Seignior's fixed rights (whether ill kind, money, labor, or otherwise) and banality, — and secondly, of his casual rights or lods et ven- tes. The forty fifth and forty sixth Sections provide for the appointment by Government, of three Com- missioners ; to be sworn before a Justice of the Peace, and paid as the Governor shall diiect. It is not said, that they are to be professional men of any particular sumdiiig, or indeed professional men at all ; yet we shall see presently, that they had need be lawyers of high mark ; for they will have (or rather, each by himself will have) to de- cide knotty questions ot law in abundance, — to in- terpret thousands upon thousands of deeds, or rather first to interpret and then alter their interpretation as this Bill directs, — to pronounce on the rights of 62 property of tome hundredi of thouiandi of people, —^nd all without appeal ; and afterwards, tney will together have to sit an an extraordinary Court, and adjudee upon a class of causes, the most intri- cate and (litricuit, as well in respect of law as in respect of fact, that ingenuity could well devise. On the other hand, however, it might not do to say they shall hn lawyers ; for the Advocate is not usually eminent as an investigator of ac- countH and settler of values of all kinds, as we •hall see these Comiiiissioners are bound to be. They are to be sworn to perform their duty. 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 tliem is to draw up in triplicate, a tabular Schedule of all the lands in each of the Seisfnio ies to be allotted to him, — showing the u- mount of the redemption money for each lot of land, and distinguishing such redemption money in every case, into three parts, that is to say, the price set on the yearly fixed charges, on the bana- lity, and on the casual rights. The forty eighth Section gives some instruc- tions, as to how these prices are to be set. The yearly fixed charges, we are told, are to be rated at the capital represented by them at 6 per cent. And if this rule were carrieil out, there \vould on this score be nothing to complain of. But it is not. There is first to be met the case of the charges stipulated in kind ; and how is this met 1 The Commissioner is to value the articles stipulated, according to their prices as ''taken from " the books of the merchants nearest to the place;" a.nd he is to come at his average, by taking the vaiuesof each of the last 14 years, thus ascer- tained, then striking off the 2 highest and the 2 low.ist, and lastly striking the average of the re- mainin" 10. Then, the value of all corvfes or sti- pulated lab*, is to be turned into money by the same not very easy process. And then, the post- script follows; that the whole "shall in no case be " calculated at a higher rate than two pence per " annum for each superficial arpent of the land " subject to such r.nnual charges, unless the said " land be a town or village lot." Of course, after all that has preceded in the Bill, this last provision could not but follow. But it is not the less a direct reversal of the professed prin- ciple of this valuation, that the price of redemp- tion of these charges is to be the capital sum they represent. Besides, — not to speak of the cumbronsness of this procedure for valuing charges in kind and la- bor, of the impossibility of the Commissioner's ordinarily finding the evidence that he is told to take, and of its unreliable character when he may lind it, — on what principle are 4 years out of the 14 to be struck otll If 14 years are to be looked up, the average from them all will be a truer aver- age, than one drawn from any 10 of them. And in truth, on what principle of right, is an average of any number of past years to betaken at all? Because prices as a general rule have been rising ; so that a money value of some years ago will be lower than the money value of to-day 1 Or on what principle, as I have already urged, on what principle turn all into money, — when, as we shall see, it is not cash payment or even payment with- in any term of time whatever, that ia contemplat- ed 1 Above all, why cut the result down, to a mo- ney maximum ? (Tnleu, indeed, it be that nothing •hort of the maximum of wrong that can incident- ally be inflicted on the Seignior, will lufAte to meet the exigencies of thia peculiar caae 1 For the setting of hit value on the banalitf rights of the St>ignior over each lot, our Commis- sioner 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 the 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 shat I " represent the interest at six per cent, of the " capital which shall be the price of redemption " of the banality for the whole of the Seigniory, " and the said capital shall be apportioned among " all the lands subject thereto, according to their " superficial extent. " Goll' revenues from banality and lods et vcntes must be held to be increasing revenues. In many Seigniories, they are fust increasing revenues. What is now their money 7alue, 1 could afford to take now. But if I am to bu paid twenty j'cars hence, I must have what their value will be then. Adding one per cent, per annum, .nerely, to an undervaluing of my lods et ver.tes alone, is a mockery; another mockery added to the many that this i3ill offers me. A;id iiot one payment ever is to be to myself. . When my land was to be taken from me, my creditors were not remembered. Ag inst any person wanting it below its value, they are to have no rights, any nore than 1. But when mo- ney is to come to me, they are remembered. Against me, they are not to lose their rights. I do not ask that they should. Protect them by all means. But protect me too. It is my right — and theirs loo — that my proi)erty be not dealt with after this fashion. What other class of men ■was it ever j)roposcd so to iwnl '? Ask the mer- chant or professional man, how he would like to have his books handed over to a t:t»anger, all his accounts squared without appeal, and all his deb- tors told to settle when they pleased, with a public functionary, who should then hand over the proceeds to his creditors. Bankruptcy ! No Bankrupt law that ever was, ever dealt so hard- ly with its victims. Protect my creditors, I re- jieat ; by all means. Eat at least do not ruin me. If my lights are to be taken, taketliem ; but se- cure to my creditors and myself their honest va- lue. To do this, that value must be settled fair- ly, and laid before us in one sum ; not every sep- arate six and eight pence, live pounds, ten pounds, twenty pounds, of an understated value, paid in at all sorts of intervals, just as a thousand people may chance to choose. Theie is no way but one, in which to take private i)roperly for the public good. The remaining Sections of this part of the Bill, from the Fifty-eighth to the Seventy-second in- clusive, are clauses which coiitemjilate the con- tingency of two thirds of the censitdircs of a seig- niory desiring to commute upon the terms set forth by the schedule; and which enable them in that case to effect the conversion of all Seigni- orial dues therein into constituted rents,— and fur- ther, if they shall so please, to act together as a corporation for the redemption of such constitu- ted rents. Upon these clauses I have no other remark to mak", than that I regret not to find' in the Bill a "ir more complete developement of the principle upon which they rest ; as it is to that principle one must look (if we are to look at all) for any real commutation of the tenure upon the voluntary principle. They create no machinery by which the Seignior on the one hand, and his censitaires as a corporate body on the other, can agree on terms of commutation, or failing to agree can set- tle any difference by the ready means of arbitra- tion. There could be no material difficulty in arranging the details of such a system, in a way to work neither inconvenience nor wrong. But these clauses as they stand, do not do this ; and failing in this respect, they can hardly be said to be of any practical importance as part of the Bill. The despotic machinery for cutting down the value of my rights, remains. And it is not even likely that these clauses (limited as their scope is) will ever be thought worth acting on ; so as to lessen the additional injury to be done me by tiie piecemeal mode of settling for them as so cut down, which is established as the rule of procedure under this Bill. I have done, then, with this portion of the Bill, and pass to the next or sixth part, extending from the seventy-third to the eighty-fifth sections inclusive ; and which treats of the proposed in- demnity to Seigniors. The recital of the seventy-third section com- mences thus : — '• LXXUI. — And whereas some of the powers " formerly vested in the Governor and Intendant " of New France, under the laws promulgated by " the Kings of France, for the pur|)ose of res- " training all undue pretentions on the part of " Seii^niors, have i:ot been exercised since the " said cession ol )ho country ; and whereas dif- " ferences of opinion have existed in Lower Ca- " nada, an i conllictiiig decisions have been pro- '■ nounced by the tribunals established since that " time in reference to the character and extent of " various Seigniorial rights ;" Anunlair recital. If powers adverse to Sei- gniors have remained unexercised sin^ ' 'he cession to what has it been owing, but to the fact that the law ol the land has not provided for, or allowed their exercise 1 And have no other powers, far more vexatious, adverse to censititires, remained unexercised I Are they alluded to 1 Or juoposal made for their revival '\ And '' conflicting deci- sions" of the tribunals of Lower Canada '! As to what points; in what causes ; when! 1 will not here undertaki; to say, that there have been none. But I do say, lliit I never heard any cited, or their existence asserted by any one. Why, as I have said. l!ie notorious complaint has been, that the Courts of Lower Canada have decided always for the Seignior. " Differences (jf ojiinion" I well know there have been ; a difference of opinion between a large class of persons not judges on the one hand, and the tribunals on the other. But for the Courts ! If anything in this world can be certain, it is that this large clase of whom I speak, have for years steadily assailed them for the uniformly Seigniorial tenor of their decisions. If anything can be new it is this assertion that their decisions, the meanwhile, have been conflict- ing. But I proceed wlih this recital : — " And whereas while it is the duty of the " Legislature to restore to persons continu- 65 rule of " iiii; to hold laiul.s en rolure, (in so fur as " pi'fseiit circumstunccs will peimit.) tho ri|ihls *■ and immunities secured tothi-'Ui by law as in' i- " preted and adnmiistered at liio Uiat nioiilionod " period, il is at lhi> same lime just thai Seigniors " who have enjoyeil Ineralive pi-ivilei^cSjof which '■ tliey will in fuUU'o be dei)riveil by this Act, " notvvilhslanding the enjoyment of such pri- " vileges may have been sanctioned by the ■' said tiibniia's since they ceased to exercise " the afoiesaid powers, should be indenniilied for '• the losses they will sutfT from the maruier in "which the rii^hts to b. hereafter exercised by " Seigniors arc defined by this Act, Be it there- " fore enacted, — That it sliall be lawful for any ■' Seignior to lay betbre the said Commissioners, '■' a slalenient in detail of llie amount of loss sus- " taiaed or thereafter to be sustained by him, by " reason oi his having' been curtailed, limited or •' restrained by this Act, in the exercise of any " lucrative privilege, or in the receipt of any •' rents or profits which as such Seignior lie would " have been entitled to exercise or receive before "' the passing of this Act." When tlie"Seignior"s land is wanted by any j^ersou, wo have seen liov,-, suintnarily and with- out apjieal, one Judge is to take it fioin him. — When his coiitraci with \ns ccndtuiix is to be en- forced, we have sei.'ii how formally and deliborate- Iv andsul)jjcttoap|->eal,a Courlof three Judges is liot to enforce it. When his rights are to be iirst undervalued, and then cut down below such un- dervaluing, we have seen how, again summarily and without ajjpeal, one Commissioner is to do all that that case requires. We have now to see how, after loss sulfeied by the Seignior from these pro- cesses, loss amounting (it well may be) to ruin, lie is to iiroceed.hupel'uUy it he can, formally and subject toapp' I at all events, with his after ])rayer for some measure of Indenmity for his loss. He is to begin, by laying before the three Conaiiissiouers — not before one — !"iis precise •' statement in detail of the amount of loss sustain- " ed or thereat'te. to be suslaiiit'd by liim, by reason •' of his having ueen cur'ailed, limited or restrain- " ed by this Act. in the exercise of any lucrative " privilege, or in the receipt of any rents or pro- ■' tits which as such Seignior lie would have been '' entitled to exercise or 'receive before the passing " of tills Act." All I can say, is, that any Sei- gnior who shall sit down \o make his statement for himself, will iind il pretty hard ; and any one who shall get it done for i.im, will liiul it pretty costlv. A statement in detail, of all his losses by this Bill ^ VNMiy, the best law er, and the best ac- eouutant and man of ligures, in the country, toge- ther, could not draw it as it had need be drawn.— And all would depend on a detail of facts, which if denied, no man could prove. It would be the pro- cedure the most (lifHcult and sureto fail, that could be ; worse, if possible, than the suing of live hun- dred ceiiiilaii-oi toiielher, for failure to keep hearth and home on landj by reserving it for cutting lire- wood. Well ; by tbe following Sections it is set forth, that my "statement or petition," when ready, is to be fyled "in duplicate" with theCommissioners; who, after handing the duplicate of it to the '-ccre- tary oi the Province, are to meet arid take the E matter into consideration, fust giving notice by advertisement, of the when and where. Whenever the interests of the Crown may reipiire it, the Attorney General or other Counsel duly authoriz- ed, is to represent Her 3[ajesty, and oppose th(! prayer of the pe'ition. And, as the interest of tlu' Crown will reijuire this in all cases, — tin.' indem- nity comingoutof a jiublic fund, — it will of coarse 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 profession- al men — are to sit as Judges ; and, after hearing tlie 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 Iind their job as hard as the Seignior will have previously found his. It is the Seignior's remedy that is in question. Delay and dilliculty are no matter. Certainly not. By the Seventy ninth Section, he is to have the right of appeal — as also is the Crown — to the (Jueen's Bench ; and thence, to the Privy Council, whenever (as must commonly be the cuse) lae demand shLill amount to £jOO Sterling. — Such appeal, upon such matter, may be slow and costly. Still no matter. Till! next clause, the ICightieth, carries us one step further ; and had need be real carefully, for its tenor to be seized, or credited : — "■ LXXX, The said Commissioners, and the Courts which shall hear any such jxtition in ap- peal, shall reject every demand tor indemnity b.ised on the privilege granted by this Act, to persons possessing lands en rot arc to free tlunn from that tenure by the redemption of the dues wiili which tliey are charged, a /u/ shall cslublkh the amount of in'km'iity due to the petitioner, onlij upon the (/(//(^rcnri? existing between the manner in a-hicli tlie ri'A-hts hereafter to be exercised bij tlic Seignior arc dejlncd by this jM, and that b'j which tlie ris^hls they exercised before the passing of this . let would have been interpreted if this Act had not been pass- ed." The question is not then to be, how much the jjetitioner has lost. No loss to result from the piece-meal and round-about way in which his rights are to be (as the phrase is) redeemed,— no loss I'rom any uiuler-valuin^r or cutting down of them, in the redemption jchedules, — no loss, even, from any ([uantity ot sheer mistake that a Coni- missioner may have made in such Schedules, — is not to count. The measure of his loss ia to be the dilPerence between two unknown quantities,— between "the manner in which his rights hereaf- ter to be exercised are defined by this Bill, and that in which his rights as : ow exercised would have been interpreted but for this Bill." Ascertain- ed, such ditferenco would not compsnsate him. But how ascertain it l How state it in his peti- tion 1 How prove it before the Commissioners I How get it written, and the grounds of it set forth in their judgment I How attack or defend it in appeal 1 This Bill purports to call it doubtful , how his rights as now exercised should or would be interpreted at law. Suppose the Commissioners to hold the recitals of this Bill ; to define these rights 66 \'n as now exercIseJ, so as on le^al grounds to give liim nothing, let him prove as matter of fact vvhat he may, li'they will, they can. Ami the Crown is to be by, — party to the suit, to require them (so far as may be) so to do. The Eighty first Section takes the next step, thus : — " LXXXr. EveryjiiJge who shall have present- " ed a petition for imdemnity in his own behalf, " in virtue of this Act, shall be liable to recus- " ation in every case in appeal from the judgment •' rendered by the said Commissions upon any such " petition ; and avery judge who shall have sat in " appeal from any one of such judgments, shall be "deemed to have renounced all right to present "any such petition in his own behalf. Was ever law heard of, or proposed, that a landlord judge might not sit in a cause between landlord and tenant ; or a proprietor judge, in a case against a squatter ; or a judge that had taken or given or endorsed a promissory note, in a case involving promissory note law ? By this Bill, the ceinitaire, Judge of any Court, is to take away the iSeignior's land ; the censitaire Commissioner, .Fudge of noCouit at all, is to cut down the Seigni- or's lights ; all without recusaiioii or appeal. But the (;hief Justice or Judge of the Queen's Bench, the highest tiibunal 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 sufl'e: but with 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 j dges— never pu', upon the pettiest magistrate. Any man but such Judge, is to be trusted, as though wiong or error to be wrought by him wern the thing that could not be. The eighty second and eighty third sections of the Bill take care, that if a Seignior shall make 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, /ittingly toconcluds this part of the Bill, the eighty fourth and eighty fifth sections read : — " LXXXIV.— And be it enacted, That the en- " dowments and disbursements of tiic Comniission- '' ers who shall be named under this Act, the ex- " penses to be incurred, and the amount of in- " demnity which shall become due under the au- " thority of this Act, siiall not be paid out of the " consolidated Revenue Fund of the Province ; " but it shall be lawful for the Governor to raise " by loan, ou debentures to be issued for that ])ur- " pose, the interest of which shall be payable 'I annually, and the principal at such time as the ' Governor shall deem most advantageous for the " public interest, out of the Special Fund, here- " inafter mentioned, such sum as may be recjuii-' " cd for the payment of the said emoluments, dis- ■' buisemenls, expenses and indemnity. " LXXXV.— The satd Special Fund shall be " designated as the " Seif^norial Fund," and shall " consist of : " 1st.— All monies arisinj; from Quint, Relief " and other dues which shall become payable to " the Crown in all the Seigniories of which tlie " crown is the Seignior dominant, as well as all " arrears of such dues. " 2iid.— Tlie Kevenue of the Seigniory of Lau- " zon and the proceeds of the sale of any part of " the said Seiijniory that may be hereafter made. " 3rd. — All monies arising from auction duties " and auctioneer's licenses in Lower Canada. I have, then, at last got something awarded. Appeal or no appeal — at whatever cost, and after whatever delay — the award is iinal. No creditor, even, contests my right to take it. Bat the credit of the Province is not pledged that I shall have it. It is " not" to com.e — 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 Commissioners' salaries and schedule-making and other disbursements whatso- ever, — no small sum , — I am to be paid. If not, I am not to be paid. In the best case supposablc, my award is not to cover all my loss ; I am to get it in no hurry ; and no clause gives me a hope of getting, along with it, any award of costs on my petition, or on any unsuccessful contestation of it, or on any appeal or appeals, that I may have suffered from. In the worst case, I have lostthu whole ; money, time, costs, together. As to thesulficiency of the proposed Fund, one is bound to presume that it is intended to be am- ple. But if so, why not at once give tlie guaran- tee of the Consolidated Fund l As that is not to be done, one must feel an uncomfortable misgiv- ing that when the Commissioners are paid, and all the rest of the expenses are paid, there may not be enough to discharge the awarils of indemnity ; that is to say, indeed, unless — as well enough may be the case — there be next to none made, at all. — The designated sources of revenue are, besides, not remarkable for ])roductivei;ess and security. Relief is never exacteil by the Crown ; and it ia hard to say why it is named here as l source of le- venue. 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 projvjrty yielding but a very moderate revenue. And auction du- ties and auctioneers' license? in Lower Canada, yield no large sum ; to say nothing of ([uestions that may arise, as to the permanent maintenance of that form ot tax, at its present rate of produc- tiveness. The last part of the Bill remains; the conclud- ing Sections, headed as Interinetation clauses. The first of these — the Eighty-sixth of the Bill — is this : — " LXXXVI. And, for the interpretation of this " Act — Be it enacted. That nothing in this Act '•contained shall exttnd or apply to any Seig- " niory held of the Crown, nor to any Seigniory " of the late Order of Jesuits, nor to any Seig- " niory held by the Picclesiastics of the Seminary •' of St. Sulpice, nor to either of the Fiefs Naza- " reth, Saint Augustin and Saint Joseph, in the " City and County of Monlreai, 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 Monlreai, and the Fiefs Nazareth, St. Augustin and St. Joseph, I have not a word to say. 'i'hey are regulated by express 'egislative enactment ; and (as f have al- ready said) it is well that at least that one enact- ment should be respected. It is respected, pre- cisely aa the whole body of law by which the 67 property of all my clients is assured to them, ought also to to be respected. But there is a further exception here made, which I cannot admit. By what right is it pro- posed to save from the operation of this Bill, the .Seigniories held by the Crown, whether as part of M domain, or as having belonged to the late or- der of Jesuits, or — as the Seigniory of LauMii is — by purchase. These Seigniories contain un- granted lands, lands granted at higher rates than two-pence and under reserves ot all kinds, wa- ter-powers, banal mills,— everything this Bill proposes to meddle with. Surely, if any ccnsitai- rescnn be favored as to such matters, theirs can. If the Province can give any rights away, it niight give its own. This Bill, however, pro- vides otherwise. The Province is to guard its own rights jealously ; to be liberal, at the ex- pense ofevery lule of right, with mine. The Eighty-seventh Section purports to save from the operation of this Bill, arrears accrued, and past payments, and leases of mills or water powers, and lands concede . after cultivation, im- provement or reacquisition by the Seignior, or dismernbennent from his reserved domnii:. So far, so good. But upon what principle ? Unless, that such arrears are legally due ; that such payments were made in discharge of lejal debts ; that such leases and giants are valid in a word, that my con- tracts — one and all — are not contrary to law Mor rniU ' If so, on what principle can they be dealt with, as this Bill would deal with them l If they are not contrary to law nor null, why are they not let alone"? Either they are legal, and as sucir sacred ; or they are illegal, and as such worthless. They are my I'iglit as they stand ; or they are not my light at all. Once cut down for tiu! future, they cannot be made safe to nie for the past. The lirst blow struck, 1 cannot be secure from blows to follow. The Eighty eighth section defines, among other words, the word ''Seigniory ;" and so defines it as to conclude within it, every kind of Seigniory, however held, — the Sherrington Seig.iiorits given with the unlimited powers, and under the circum- stances I have alluded to, the Seigniories of Mount Murray and Murray Bay, giveir by the British Crown to subjects who had shed their blood in its service ; the Seigniories granted in franc aleu, or otherwise on terms all but importing sover- eigirty 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 consistent. No Seignior is or can be a pro- prietor ; or shall be so treated. Our property — the property of every one of us — is to be denied to us ; our contracts are to avail against us, but not for us ; our whole civil status is to be changed ; we 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 indemnity, 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 1 have observed already — that, for the ends of this Bill the words " wild land " are not to be held as meaning wild land, but some- thing else. My task is nearly done. I have not willingly taken up so much of the time of this Honorable House ; nor spoken more at length than I could help. But I cannot, before concluding, avoid ask- ing once again, after this leview of the clauses of this Bill, whether Legislation of the kind thereby proposed can be held to be in airy sense or shape a restoration of any old law which ever at any former time regulated Seisniorial property; whether there would be any'going back to the past, in the enact.nent of a new law, containing such provisions as this Bill coutains ; whether any such project of law ought to be enacted, or indeed can so much as be discussed, as being like- ly to become law,— unless with the most disas- trous 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 exis- tence the very Tenure which it purports to intend to sweep away. It would have declared much, and implied more ; would have unsettled every- thing ; established nothing. The legislative word would have gone forth, that my clients are not pro- prietors ; that their rights are nothing but what the Legislature may sec iit 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 a- gainst 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 oth- erwise, — however unwillingly, however -.ve may love this our country, however anxious wo may be to maintain her character and credit, we must declare, — and so declai-ed, what we say must everywhere instinctively be felt to be true, — that measures such as we are threatened with, are measur-ps, of a kind to destroy all trust iir our in- stitutions, or in the character of our people. We may save ourselves ; or we may be ruined. But we cannot bo ruined alone. The agitation that shall have beggared us, will have demoralised this country, and destroyed all public faith in its insti- tutions. Public confidence is of slow growth. We have seen how slowly, as regards this country, it has grown to be what it is, — to give promise of the fruit, which it 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 tlian now to ourselves 'S 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 the facts think of this Seigniorial Tenure, with w at they call its abuses and extortions, as of a something so monstrous and oppressive, as to make it hardly any matter what means may be taken to get rid ot 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, resistance and 1 know not what, they draw the inference that here in Cana- da, by whatever means — one need not care how — the country population must be freed from its bur- thens ; or, befoie 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 68 ■I :•, more unlike, than that which now subsists under the same name here. Tlie two have hardly a feature in common. There, indeed, tiiero was ex- tortion ; an extortion datins back throu<;h lonjj ages of op{. res,- ion and wrong of every kind, to the conquest ni' one race by another ; extortion, sometimes ind. ,.1 more or less veiling itself under the form of contract, but oftcner subsisting as mere custom, tiie custom of a conquering tyranny ; extortion, that under every vaiiety of form, by exactions the mos* multiplied and oppressive, — the very names oJ .nost of whi;:h have long since lost meaning, save to the antiquary — giound down and kej)t in abject want ai;d prostration the whole rural population of the land. It was swejit a- wiiy utterly, in a moment of madness, and with every accompaniment of crime and liorror. It was not swept away, without violation of con- tracts and rights of property. But, may it not at least be suggested, that the sweeping away of that system, all bad as the system was, has per- haps not yielded all the fruits that were hoped for, by those who then did the wrong, of abolishing it otherwise than with a due regaid to light. They sowed the wind. Did they not — do they not — reap the whirlwind '? VVho will say, that the French nation, so far, has causeto congratulate itself on thf> lesultsof its iearfid experiment of so- cial and political destruction 1 But to all that state of things, I repeat, there is here nothing that can be compared. Here, everything apj.er- taining to the system is matter of coniraot and law. What in France was mainly lictioii, hushere been fact. The obligations that subsist, are obli- gations resulting from fcoua y/f/t; grants of lard ; obligations, partly of iree contract, partly super- added by public law upon the basis of s,Hch con- tract. Besides, there the rural population had for ages b^en kept in a state of poverty and wrong, not much more humanizing in its inlluences than a state of slavery would have beeii, and may be said to have first woke to political existence, at the very moment when it seized on all the powers of the State. Here, we have a rural populaticn, as easy in its circumstances, as respectable for every moral quality, as respectful of law and property, as any on the lace of the globe. To liken our population to that of France m 1789, is a inistake as great as a man well can make ; and one as well calculated, by the\say, as anything can be, to destroy our character. The matter in dispute here, what is it ? A question whe- ther lands shall continue to pay a iien- ny, two pence, two pence half penny — pos- sibly a shilling — an arpent, of yearly rent. The system, unless as carrying with it lods et vcnlcs, 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 beller it remained forever, than that it should be put zn end to unju.stly, — at the cost of the character ol the country. 1 say no word against the commuta- tion of the Tenure. I desire it. My clients de- sire it. It can be eilected, without involving them in loss. It ought, if done at all, to be so done. It must be so ilone. — They are not guilty trustees to be punished ; but proi)rietors to be protected. They have the right to require that their juo- perty be protected. They have the right to except, they do most respectfully but firmly except, to the competency of this Legislature — of any Legisla- ture — to destroy their vested rights, to give away what is theirs to others. The great Judge, whoso name ])erlia])S more than that of any other is ol the history of our Common Public Lav/, lung ago laid down the maxim, as appearing liom the books, that " in many cases the common law will " control Acts of Parliament, and sometimes ad- " judge them to be void: For when an Act of " Parliament isagaint Common Bight and Beason " or repugnant or imnos.'^ible to be perlormed, " the Common Law will control it, and adjuilge " such Act to be void.'' The tradition of that maxirn of that great man has never been lost ; but remains yet, a maxim of the Common Public Law, by the sitle even of that other tradition, v.'hich holds that Parliament — the Imperial Parlia- ment — is omnip.otent, may do what it will. And most siu-ely it is not too much for me to say, that this Parliament — a Parli<.:r'"nt not Imperial — Im.s not, at Common Law, the right to bieak contracts, to take from one man what is hi.s, to give it to another. JNIy clients ask — I here ask for them — no pre- ference or privilege over any class of our coun- trymen. They have no wi.sh to go back to- wards that past, wherein they were judged by one tribunal, and their tciisitaircs by another ; their position then the favorable one. But they do ask, that they be iiot carried into a future, wherein they .shall be judged by one tribunal U> their ruin, aial their ccinitiiirct: uy another to their own gain. They do ask — ask of right — that u|, on the titatute Book of tliis Piovince, as touching them and theirs, that only be declared wliicli is true, that only enacted which is right. Ami pleading here this their cause, before this Honor- able House, the Commons House of Parliament of thi.s British country of Canada, — ajjpealing to this country here represented, — recalling, too, the as- .surance but lately given as to this very mattei from theTlnone. and the answering pledge ol' the coiuitiy, signified througli both Houses of its i'ar- liament, — I have too firm I'aith in the absolute omnipotence, here aid now, of the true and right, to be able to teel a fear m, to the linal judgment which the country and the Crown shall pass upon it. bo put an laiactiT ol e coinmuta- clicnts cle- olving them )e so (lone, ilty trustees prolecteii. it their pro- it to except, jcccpt, to the uy Le^isla- 1 ^ive away udKe, whoso other is ol ,w, loii^ ago I from the nnu law will nuctimes ad- aii Act of taiul Keasoti e performed, ai;d adjudge .ion of ituit ecu lost ; but moil Public er tradition jierial I'arlia- t will. And e to say, that inperial — lias ak contracts, to giv(; it to em — no pre- if our coun- <^o back to- e judged by by another ; But they to a future, e tribunal to lother to their ht — that upon , as touching red which is right. And •(> this Ilonor- I'ari lament of jcaling to this r, too, the as- very matter pledge of the ses of its I'ar- the absolute •ue and right, nal judgmen', idll pass upoi:.