LIBRARY THE UNIVERSITY OF CALIFORNIA SANTA BARBARA PRESENTED BY DR. WILBUR JACOBS U.C.S. B. HARVARD HISTORICAL STUDIES PUBLISHED UNDER THE DIRECTION OF THE DEPARTMENT OF HISTORY AND GOVERNMENT FROM THE INCOME OF Ci^e ^enri? Wanm Corret fnnh Volume XIII HARVARD HISTORICAL STUDIES. I. The Suppression of the African Slave-Trade to the United States of America, 1638-1870. By VV. E. B. Du Bois, Ph.D., Professor of History in Atlanta University. 8vo. $ 1.50 net. n. The Contest over the Ratification of the Federjil Constitution in Massa- chusetts. By S. B. Harding, A.M., Professor of History in Indiana Uni- versity. 8vo. $ 1.25 net. III. A Critical Study of Nullification in South Carolina. By D. F. Houston, A.M., President of the University of Texas. 8vo. $ 1.25 net. IV. Nominations for Elective Office in the United States. By Frederick W. Dallinger, A.m., Member of the Massachusetts Senate. 8vo. $ 1.50 net. V. A Bibliography of British Munici- pal History. 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XII. The Development of Freedom of the Press in Massachusetts. By C. A. DUNIWAY, Associate Professor of History in Leland Stanford Jr. Univer- sity. 8vo. $ 1.50 net. XIII. The Seigniorial System in Can- ada. By W. B. MUNRO, Ph.D., LL.D., Assistant Professor of Government in Harvard University. 8vo. $ 2.00 net. LONGMANS, GREEN, & CO., NEW YORK. THE SEIGNIORIAL SYSTEM IN CANADA A Study in French Colonial Policy BY WILLIAM BENNETT MUNRO, Ph.D., LL.B. ASSISTANT PROFESSOR OF GOVERNMENT IN HARVARD UNIVERSITY NEW YORK LONGMANS, GREEN, AND CO. LONDON AND BOMBAY 1907 H. E. H. DUPL. Copyright, igoy. By the President and Fellows of Harvard College. Norfaaoli i^tfsa J. 8. Gushing & Co. —Berwick & Smith Co. Norwood, Mass., U.S.A. 1 I,U5:'Af;/ \ A 3 Q UNIVERSITY OF CALIFORNIA SANTA BAliBARA PREFACE Not a few thoughtful readers have laid aside Park- man's interesting little sketch of Canadian feudalism with some desire to know more about an institution which played such a picturesque and conspicuous part in the stirring drama of the old regime in French Canada. It was this desire that prompted, some ten years ago, the beginnings of the present study, which in due time was elaborated into a dissertation and presented in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Political Science at Harvard University, and which in 1900 was awarded the Toppan Prize in that institution. The whole study has since been revised, somewhat rearranged, and con- siderably enlarged. It is now given to the press with a feeling that, whatever its organic and incidental defects, no apology need be offered for the publication of a volume dealing with a topic so important in the institutional history of New France, and yet hitherto so slightly studied by writers on the policy and achieve- ments of France in the New World. It has been my aim to base the study of the structure and workings of the seigniorial system in Canada wholly upon primary materials, — to accept, so far as possible, no point of importance from other than authoritative sources. A general adherence to this policy has limited the scope of the monograph to an uneven range of origi- nal materials, and has of necessity seriously impaired vi PREFACE. the symmetry of the study. If the discussion of the various incidents of the system is not nicely adjusted to their relative importance, this fault is perhaps due, not so much to a defective sense of proportion, as to the fact that an abundance of available data on some phases is offset by a meagreness on others. If more attention is given to the legal than to the economic aspects of the system, it is because the materials, from their very nature, deal more with the legal relations of sovereign, seignior, and censitaire, than with the actual working of these relations. Most of the material from which information has been gleaned is not at present accessible to the gen- eral reader; much of it is still in manuscript, while such of it as is in print is to be had, for the most part, only in government publications issued in limited num- bers more than a half-century ago and now not easy to obtain. It is expected, however, that during the coming year the more important documents bearing on the seigniorial tenure will be published, under the editorship of the present writer, by the Champlain Society of Canada. I should indeed be unmindful of the many obligations under which I have been placed in the preparation of this volume, were I not to record my very sincere appre- ciation of the kind assistance cheerfully tendered me from various quarters. More particularly must I thank the Hon. R. W. Scott, secretary of state, Dr. A. G. Doughty, Dominion archivist, and Mr. Benjamin Suite of Ottawa, for aid in the acquisition of material. To Professor Adam Shortt of Queen's University, under whose guid- ance the study was begun, to Professors C. W. Colby and F. P. Walton of McGill University, to Professor G. M. Wrong of the University of Toronto, and to PREFACE. vii Professors Emerton, Gross, and Haskins of Harvard Uni- versity, I am indebted for various suggestions which have proved helpful. Miss Magdalene Casey of the Dominion Archives has carefully verified the references to unpub- lished documents, and Miss A. F. Rowe of Cambridge has rendered faithful expert service in the preparation of the manuscript for the press. Most of all, however, must I acknowledge a heavy debt of gratitude to my kind friend and former master, Professor Edward Chan- ning, whose inspiration, guidance, criticism, and encour- agement have been of unfailing value to me at all stages of the study. WILLIAM BENNETT MUNRO. Cambridge, Massachusetts, April, 1906. CONTENTS. CHAPTER I. THE EUROPEAN BACKGROUND. PAGE Land-Tenure Systems and National Progress . . . . i The Origins of Feudalism 2 Feudal and Seigniorial Tenures 4 Seigniorial Obligations in France 5 The Coutumes 6 Codification of the Coutumes 7 The Custom of Paris 8 promulgafion of the custom of paris in canada ... 9 Unsuitability of the Custom to the Needs of the Colony . lo The Decay of Seigniorialism in France 12 CHAPTER n. EARLY SEIGNIORIAL GRANTS, 1 598-1666. The Discovery of the St. Lawrence Valley .... 17 Early Attempts at Colonization 18 Seigniorial Grants at Quebec, i 608-1 627 21 The Company of One Hundred Associates 22 Seigniorial Grants made by the Company, i 634-1 663 . . 25 Establishment of Royal Government in New France . . 27 The Company of the West Indies 30 Its Surrender of the Right to make Seigniorial Grants . 34 CHAPTER III. LATER SEIGNIORIAL GRANTS, 1666-1760. Seigniorial Grants made by the Royal Officials • • • 35 Revocation of Grants remaining Uncleared .... 36 Growth of Seigniorial Abuses 39 CONTENTS. The Arrets of Marly, 171 i Refusal of the King to make further Grants Report of Catalogne on the State of the Seigniories Renewal of Seigniorial Grants Later Progress of the Seigniorial System 42 45 46 47 SO CHAPTER IV. THE SEIGNIOR AND HIS SUPERIORS. Forms and Conditions of Land Tenure in the Colony Grants En Franc A leu and En Franche Aumone Grants En Fief or En Seigneurie Obligations of the Seignior to the Crown Fealty and Homage AVEU ET DENOMBREMENT .... Obligation to Subgrant Lands {Jeu de Fief) Royal Policy in Regard to Subinfeudation Quint and Relief The Obligation of Military Service . Settlement of the Carignan Regiment in the Colony Royal Reservations imposed upon the Seigniors 52 53 54 55 56 57 58 61 62 64 67 73 CHAPTER V. THE SEIGNIOR AND HIS DEPENDENTS. Grants En Arriere Fief 77 Obligations of Sub-seigniors to Seigniors 78 Grants En Censive or En Roture 79 Nature of the En Censive Concessions 80 Evils arising from the Subdivision of Small Holdings . . 82 Obligations of the Habitant to his Seignior .... 85 Cens et Rentes 86 Nature and Amount of this Payment 87 Seigniorial Exactions and the Arrets of Marly ... 89 LoDS ET Ventes, their Nature and Amount .... 96 Droit de Retrait 97 CONTENTS. XI CHAPTER VI. THE BANALITIES. Origin and Nature of the Banalites in France The Right of Mill Banality in Canada Official Regulations relating to the Mills Progress of the Milling Industry The Royal Decree of 1686 The Banal Obligation in France and in Canada Unsatisfactory Condition of the Colonial Mills Official Intervention in the Interest of Improvement . Questions as to the Extent of the Seignior's Banal Rights The Obligation of Oven Banality Official Objections to its Enforcement in the Colony . The Banal Obligations not Burdensome before 1760 PAGE lOI 102 105 106 III 112 117 121 122 125 CHAPTER VII. THE CORVEE AND OTHER EXACTIONS. Nature and Extent of the Corvee Exactions Official Regulation of the Seignior's Rights The "King's Corvee" Seigniorial Reservations .... Nature and Extent of these Reservations Seigniorial Prohibitions Fishing and Hunting Rights .... Minor Seigniorial Privileges 127 128 132 133 134 139 140 141 CHAPTER VIII. SEIGNIORIAL JUSTICE. Early Judicial Administration in New France . • . .145 Gradations of Seigniorial Jurisdiction 147 Haute Justice 148 MoYENNE Justice 15° Basse Justice 151 Infrequent Use of Judicial Powers by Seigniors . . .152 xii CONTENTS. PAGE Relation of Seigniorial to Royal Courts 153 General Character of the Colonial Judicial System . .156 CHAPTER IX. THE SEIGNIORIAL NOBLESSE. Honorary Rights of Seigniors 159 The Noblesse in France and in Canada 161 Jean Talon, Comte d'Orsainville and Baron des Islets . .162 Francois Berthelot, Comte de St. Laurent . . . .165 The Baronies of Cap Tourmente, Pobomcoup, and Portneuf . 166 The Barony of Longueuil 167 The Chatellenie of Coulonge 169 The Marquisates of Sable and Miscou 170 The Minor Nobility 171 Character and Condition of the Noblesse . . . • 173 The Gentilshommes and the Frontier Wars . . . .176 Relation of the Noblesse to the Seigniorial System . . 177 CHAPTER X. THE SEIGNIORIAL SYSTEM AND THE CHURCH. Economic and Religious Motives in French Colonization . 178 Support given to the Seigniorial System by the Church . -179 Seigniories of the Jesuits 180 Seigniories of other Orders and Institutions . . . .181 Relation of the Seigniory to the Parish 182 The Seigniorial Right of Advowson 185 Superior Management of the Ecclesiastical Seigniories . 186 Administration of Justice in the Church Fiefs . . .187 The Church as a Bulwark of Seigniorialism . . . .188 CHAPTER XI. THE SEIGNIORIAL SYSTEM UNDER BRITISH ADMINISTRATION. Articles of Capitulation and Tenure of Lands . . . 189 The Guarantees of the Treaty of Paris 191 CONTENTS. xiii Land-granting Policy of the New Administration Difficulties in the Application of English Law Views of Governor Carleton .... Views of Maseres The Seigniorial System administered in a Changed Quebec Act of 1775 The American Invasion and Military Service . The Loyalists and Extension of Socage Tenures Beginnings of the Movement for Commutation . Legislative Investigation of 1790 Constitutional Act of 1791 Spirit PAGE 194 199 202 204 209 211 214 215 216 221 CHAPTER XII. ABOLITION OF THE SEIGNIORIAL SYSTEM. Canada Trade Act of 1822 224 Canada Trade and Tenures Act of 1825 225 Facilities for Voluntary Commutation of Tenures . . . 226 Dissatisfaction of the People with this Policy . . . 227 Relation of the Tenure System to Popular Discontent . 233 Rebellion of i 837-1 838 236 Durham's Report and its Description of the Seigniories . 237 Further Legislative Investigations, 1843 239 Growth of the Movement for Abolition 242 Seigniorial Tenures Abolition Act, 1854 245 The End of Seigniorialism in Canada 251 BIBLIOGRAPHICAL APPENDIX 253 ALPHABETICAL LIST OF PRINTED MATERIALS . . 267 The physiognomy of a government may be best judged in its colonies, for there its features are magni- fied and rendered more conspicuous. When I wish to study the merits and faults of the administration of Louis XIV, I must go to Canada ; its deformity is there seen as through a microscope. — Alexis de TocQUEViLLE, The Old Regime and the Revolution. THE SEIGNIORIAL SYSTEM IN CANADA. CHAPTER I. THE EUROPEAN BACKGROUND. If the respective colonial policies of France and England in North America stand somewhat sharply in contrast with each other, this contrast is due, in no small measure, to the different circumstances in which the two parent states found themselves in regard to their own internal development at the beginning of the era of colonial expansion. The whole system of land tenure, including the system of public and private relations based upon the possession of land, is by no means the least reliable gauge of the general position which a state has reached in the scale of political, social, and economic evolution ; for, as every careful student of institutional history knows, the progress of nations has been reflected, step by step, in the development of customs and laws relating to the tenure of landed property. The system of landholding introduced by any state into its colonies, and its liberal or strict administration of such system, may very well serve, therefore, as an index to the general breadth or narrow- ness of its colonial policy. Into her North American territories France introduced, in fhp <;pvp nfppnth rentiiry , that complex code of relations based upon the holding of land commonly known as th^_seignk)rial _system._ This system, the essential incidents of which had been developed from the feudal organization of an earlier period, the French authorities in Canada fostered and elaborated for more than a century, modifying it to suit the needs of pioneers 2 777^ EUROPEAN BACKGROUND. in a new land, and giving to Canadian feudalism a character different in several important respects from that w^hich marked the system in the parent state from which it was derived. With the passing of Canada into English hands in 1760, the maintenance of the system and its future development were committed to the somewhat unsympathetic care of the new suzerains, who continued it in existence for almost a century longer. The ladli ght of feudalism was thus more prol onp^^d in French X.ajada than ill any oth(^r territory rDiitrnl]pd_by_a Fiirnppan '-84, Memoires, sec. i. 7 ff. * " Memoire sur les Plans des Seigneuries et Habitations de Quebec, les Trois- Kivieres, et de Montreal, par M. de Catalogne, Ingenieur," November 9, I7I2, Correspondance Generate, xxxiii. 278 ff. A small portion of this report is printed in the appendix to Parkman's Old Regime in Canada. 46 LATER SEIGNIORIAL GRANTS. As Catalogne visited most of the important seigniories in the colony, his report contains a great deal of interesting infor- mation regarding the topography of the grants, the extent to which the seigniories had been developed, the nature of the crops raised, the relations of the seigniors to their habitants, — in short, a mass of interesting data concerning the structure and incidents of Canadian feudalism in the earlier years of the eigh- teenth century which can be had nowhere else. He describes ninety-one seigniories in all, of which the majority belonged to the religious orders (more particularly to the Jesuits), to members of the council, to judges, and to other officials. A score or more belonged to discharged officers of the regular army, and a number to the widows and sons of officers ; of the remainder, ten belonged to merchants and traders, two to sailors, and only a dozen to those who gave their occupation as laborers. Catalogne remarked that in most of the seign- iories a considerable portion of the land was still uncleared, and that the habitants were usually unable to cultivate a quarter of what they held. Catalogne complained that the people were compelled by the church to leave their work for the too numerous fetes, a circum- stance which was very detrimental to the proper cultivation of the soil. On account of these fetes, he declared, not more than ninety working days were left to the habitants in the whole busy season between the beginning of May and the end of September. This, he thought, was one of the reasons why so many of them abandoned their lands and went off to the forest, preferring to sacrifice a whole harvest for the chance of making thirty or forty ictis} Catalogne, it may be remarked, was not the only one to complain of this practice ; successive governors and intendants adverted to the great difficulty experienced in persuading the habitants to stay on their farms. The fascina- tion of forest life appealed especially to the young men, who went off to the western wilderness by the score almost every year. According to Catalogne's report, the methods of agriculture 1 The ecu of Louis XIV may be reckoned at slightly more than five francs, or somewhat more than a dollar in American currency. LATER SEIGNIORIAL GRANTS. 47 in the colony were both slovenly and crude. " If the land were not better cultivated in France than here," he wrote, " three- quarters of the people would starve." He found, moreover, that the habitants were uneconomical and improvident, taking little thought for the morrow ; even the very poorest of them, he said, kept one or more horses, which did little but eat their heads off for seven or eight months of the year. In his opinion the people would do much better to raise beef cattle, which could be made a source of profit. As for the seigniors, they appeared to him to be lacking in energy as well as in capital. Many of them seemed poorer than their dependents, and, being often men of low extraction, were frequently unable to command the respect of their habitants. Taken all in all, the report of M. de Catalogne was not such as to convince the king or the minister that the seigniorial system was making very encouraging headway in the colony. As the old king was, however, about to close his long reign, the recommendations contained in the report appear not to have been acted upon at that time ; but two years later, when the death of Louis XIV, in 171 5, resulted in the establishment of a regency, the decision to cease making further seigniorial grants, at least for the time being, seems to have been one of the early acts of the new government. After the lapse of a decade, grants of seigniories began to be made once more, the first one to the Ursulines of Three Rivers on April 18, 1727.^ This seems to have been an isolated grant made for a special reason,^ and it does not appear that any more were made until 1731; but from that time on they became quite numerous. With the resumption of the grants, however, came a renewal of complaints regarding the existence of seigniorial abuses. Apparently the provisions of the Arrets of Marly were being evaded by many of the seigniors. If one may trust a report made to the minister by Messrs. Beauhar- ^ Dunkin, Address at the Bar of the Legislative Assembly of Canada, Appendix, No. 376. I have not been able to find a copy of this title-deed; the original was destroyed by fire at Three Rivers in 1806. ^ The Ursulines of Three Rivers had acquired by purchase and otherwise several small parcels of land. The grant of 1727 consolidated these into a single fief, adding thereto a considerable tract from the ungranted domain. 48 LATER SEIGNIORIAL GRANTS. nois and Hocqiiart in 1730, the seigniors found several wa5^s of circumventing the provisions of the first of the two arrets of 171 1, which prohibited them from exacting any entrance fee from those taking up uncleared lands within the seigniories, and ordered them to make grants, at the usual terms, to all settlers who applied for them. In this report, complaint is made that some seigniors " reserve considerable domains within their seigniories, and, under the pretext that these lands form part of their own demesne, have refused to grant any part of this reservation, claiming that they have a right to hold it for sale." It is also shown that those who hold lands en arrih'e Jief contmwe. to exact 2l prix d'ejitree, on the ground that the arret applies only to the dominant seigniors and not to sub-seigniors ; that many seigniors who *' appeared to concede their lands gratis have taken means to secure payment for such lands (without mentioning the fact on the face of the deed), by obtaining separate obligations from the grantees for sums pretended to be due the seigniors for other considerations;" and, again, that some seigniors exact an entry fee under color of some inconsiderable clearingwithoutcultivation, or under pretence that natural prairie land is to be found upon the grant. The governor and intendant refer to the fact that most of the habitants are ignorant of the provisions of the first arret of 171 1 ; and they call attention to the existence of considerable land speculation, " which is injurious to the colony and tends to foster indolence among the habitants without furthering the settlement or cultivation of the lands." Naturally enough, as they point out, " the seigniors are doing nothing to discourage this speculation, for a mutation fine {lods et ventes) accrues to them whenever the lands change hands ; in most cases, therefore, they do not seek to reunite unoccupied lands to their domain (as they have been empowered to do by the second arret of 171 1 ), preferring to have such lands made the basis of specula- tive sales as often as possible." Accordingly the governor and intendant pray the minister to secure the issue of another decree prohibiting the sale of wild lands on any pretext whatever.^ 1 Beauharnois and Hocquart to Maurepas, October lo, 1730, Correspondance Generale, liv. 106 ff. LATER SEIGNIORIAL GRANTS. 49 In due time the minister, Maurepas, replied that he had taken the matter before the king, who had " learned with pain of the inexecution of the arrets of 171 1." ^ The nonchalant manner in which both Louis XIV and his successor heard again and again that their decrees were either unexecuted or evaded in New France is worthy of remark. Instead of recalling those officials who had been responsible for the outcome, they merely ordered that the decree in question be republished, or they issued a new de- cree along the old lines. Consequently, the minister now informed the colonial officials that His Majesty stood prepared either to order the republication of the Arrets of Marly, or to issue a new and more stringent decree, as the governor and intendant might think best. The latter replied that the republication would probably effect the desired end for the time being, but that a census {terrier) of the colony was then being taken, an examination of which, when completed, would best indicate what further action would be necessary. They complained, however, that the religious orders were delaying the completion of this enumeration through their failure to respond to requests made to them for information regarding the extensive territo- ries which they held. In the following year a royal decree issued from Versailles reiterated the provisions of the Arrets of Marly, and ordered that these be forthwith " enforced accord- ing to their form and tenor." ^ As the census was not completed for two years after the issue of this decree, the colonial officials meantime delayed proceeding to the forfeiture of uncleared seigniories. Even after the census had been fully taken in 1734,^ they continued to put off action; and it was not until the spring of 1741 that the governor and in- ^ Maurepas to Beauharnois and Hocquart, April 24, 1731. This document is calendared in the Report on Canadian Archives for 1904, p. 143. It has not yet been transcribed for the Correspondance Generale. 2 Edits et Ordonnances, i. 531 (March 15, 1732). ^ This census was, it is believed, the most exact that had been taken up to this time. The total population of the colony is given as 37,716. The amount of cleared lands is placed at 180,868 arpents, of which 163,111 were under cultivation. Since 1721, when the last previous census had been taken, the area of cleared lands had more than doubled. A manuscript copy of the census is in the archives of the Quebec Historical Society ; a summary of it is printed in Censuses of Canada, 1665-1871, p. 57. 50 LATER SEIGNIORIAL GRANTS. tendant finally bestirred themselves to the work of enforcing the royal orders in the case of tardy seigniors. On May lo of that year they issued a joint judgment forfeiting to the crown do- main some twenty seigniories, the owners of which were deemed not to have showed sufficient energy in clearing and settling their lands.^ The stroke was a drastic one, for no compensation what- ever was given to the seigniors ; but it ought to be mentioned that some of the forfeited lands were later restored to their former owners by grants de novo? However, the issue of the ordi- nance had a very wholesome effect on the remaining seigniors of the colony, who from this time forward seem to have given more attention to the development of their seigniories. The procedure to be followed by the governor and intendant in making grants of seigniories and in arranging for their for- feiture had never been clearly defined until the summer of 1743, when it was set forth in detail by a royal arret. According to the terms of this arret, either the governor or the intendant might make grants in the absence of the other from the colony. When the two officials differed as to the advisability of granting a seign- iory to an applicant, they were to leave the matter in abeyance un- til the king's wishes could be known; but when they differed as to the advisability of decreeing the forfeiture of a seigniory, they were to call in the oldest available member of the Superior Council. Any seignior who felt that his seigniory had been wrongfully taken from him was, by the terms of the arret, to have the right of appeal to the king.^ During the remaining seventeen years of the French regime in Canada (1743- 1760) many grants were made; but none of them contained any peculiar features, and the system itself seems to have developed nothing that was new. This was a period of military storm and stress in New France, and all the en- ergies of the population were directed toward the attain- ment of success in the great struggle. Seigniories were often deserted, for almost the whole adult male population was 1 Edits et Ordonnances, ii. 555-561. 2 For example, the Sieur Foucault received back his forfeited seigniory on May i, 1743 {Titres des Seigneuries, 204). 3 Edits et Ordonnances, i. 572—574. i LATER SEIGNIORIAL GRANTS. 5 1 concentrated at Quebec, Montreal, and the other strategic points. Whenever possible, the habitants were allowed to go back to their farms for short periods during seed-time and harvest; but the enforced absence of the cultivators of the land was severely felt, and when the colony passed into British hands the whole agricultural area showed very plainly the disastrous results of neglect. CHAPTER IV. THE SEIGNIOR AND HIS SUPERIORS. In general it was the policy of the crown to grant out lands in the colony en seigneiirie only, and of those who received grants en seigneiirie to subgrant their lands to be held en censive. It will be found, however, that, although this was the ordinary procedure, there were some deviations from it; for, strictly speaking, there were no less than six distinct forms of tenure in existence, although four of them were clearly excep- tional. These six forms may be enumerated as follows: (i) en franc aleii noble, (2) en franc alen roturier, (3) en franche aumone, or frankalmoign, (4) en fief or en seigneiir'ie, (5) en arrih'e fief, (6) en censive, or eti roture. While it is true that there were but very few examples of each of the first three forms of tenure, and while the fifth was not nearly so general as the fourth and the sixth, some consideration must be given to even the exceptional forms. I. Grants en franc aleu noble were not really feudal, but rather allodial, grants ; they were held without other condition than that the grantee should render fealty and homage.^ When made to individuals, they conferred upon the holders rank in the noblesse ; but no grants to private individuals were ever made in the colony under this tenure. In fact, only two grants en franc alen noble were made throughout the French regime, and both to the Jesuit order, — one of a small strip of land at Three Rivers in 1634,2 the other of Charlesbourg, near Quebec, in 1637.2 The reason given for making the grants in this form rather than en seignenrie was that, since the titles of all lands 1 Henrion de Pansey, Dissertations Feodales, i. II-27. 2 This tract of about six hundred arpents was known as Pachiriny, or Pachirine. See Titres des Seigneuries, 70 ; also below, p. 180. ^ Titres des Seigneuries, 346—347. 52 THE SEIGNIOR AND HIS SUPERIORS. 53 granted to the Jesuits vested in the general of the order, the quint, or mutation fine, would, in the case of lands held en fief , become due and payable each time a change in the headship of the order was made, whereas by the tenure en franc aleti noble this payment was avoided.^ The Jesuits did not, however, find it advisable to adhere to this policy, for in the case of other grants they requested and received the allotments as seigniories. In 1678, however, they secured the issue of a royal edict where- by all their lands were amortised and freed from the usual obligations to the crown.^ 2. The grant of a tract of land to be held en franc aleii rotiirier did not bring to the grantee any rank in the nobility ; but in other respects it corresponded to a grant en franc aleu noble. It was, in fact, roughly analogous to a grant in free and common socage. Lands held en franc aleti rotu7-ier\vQ.rQ subject to no dues or payments ; indeed, they were not feudal grants at all.^ Only a few of them were made, and for each one there was usually some good reason, which was not infrequently stated in the preamble of the title-deed. Sometimes, for example, a seignior received en franc aleu rotiirier a grant of land which happened to lie where it was naturally exposed to Indian attacks, and for which, therefore, it would be difificult to obtain settlers ; or, as in one case, he received the grant of an island lying off his seigniory, merely in order that he might erect upon it any small works which he might deem essential to the proper defence of his seigniory against Indian raids. On such hold- ings it seemed only fair that no quint should be made payable. 3. Grants en franche aumone, or frankalmoign, were made in considerable number, invariably to rehgious, educational, or charitable orders or institutions. The sole obligation imposed upon the holders of such grants, in addition to that of rendering ^ Robert Abraham, Some Remarks on the French Tenure of Franc Aleu Rotu- rier and its relation to the Feudal and other forms of Tenure, 7. 2 Edits et Ordonnances, i. 102-105. The same royal favor was similarly granted, at various times, to the Recollets, the Ursulines, and to the authorities of the Hotel- Dieu of Quebec (^Ibid. 98, 243-244). ^ "A freehold, exempt from all burdens, and subject to no seigniorial rights or dues, either pecuniary or honorary " (Tocqueville, The Old Regime and the Revo- lution, 342). 54 THE SEIGNIOR AND HIS SUPERIORS. fealty and homage, was the duty of performing some specified religious, educational, or charitable service in return for the grant.^ Usually this latter obligation was definitely set forth in the title-deed. Thus, for example, some of the grants made to the Jesuit order by the Company of One Hundred Associates stipulate that the fathers shall, on the first Tuesday of the month of December, — which is the date of the annual meeting of the company, — "say and celebrate forever a mass for the repose of the souls of the deceased copartners of the company, to which they shall be obliged to invite the officer commanding for the said company within the fort of Quebec, that he may attend thereat if he think fit."^ Occasionally, however, the obligation is expressed in more general terms, as, for example, in the case of the grant of La Prairie de la Magdelaine, which was given to the Jesuits in 1647 merely in order, as the title- deed states, "that the company may be participating in their prayers and holy sacrifices." ^ One can scarcely fail to remark the ostentation with which professions of religious impulses on behalf of the French crown are inserted, not only in all the ecclesiastical title-deeds, but in many of the purely secular ones as well. On more than one occasion laymen are informed, in the preambles of their deeds, that " His Majesty has always sought, with that zeal which is suitable to his title as eldest son of the Church, the means of making known in the most unex- plored countries, by the propagation of the faith and the dif- fusion of the Gospel, the glory of God and the Christian name, — the first and principal object of his estabHshment of the French colony in Canada." ^ As the Jesuits were the most active and successful agents in this work, their order was made the recipient of the royal bounty to a very generous degree.^ 4. By far the greater part of the larger land grants were made en fief or en seigneiirie^ terms which were used synonymously in the colony. The few concessions, made either by the com- ^ On the nature of tenure en franche aumbne, see Henrion de Pansey, Disserta- tions Feodales, ii. 54-149 ; and VioUet, Histoire du Droit Civil Franfais, 702-708. 2 Titres des Seigneuries, 344. ^ Ibid. 75. * Cf. Ibid. 1 1-43. ^ See below, ch. x. THE SEIGNIOR AND HIS SUPERIORS. 55 panics or by the crown, to be held under other terms, must be looked upon as exceptions to the general rule ; for, when peti- tioners applied to the colonial authorities for grants of land, they invariably, if their applications were favorably entertained, received grants en seignetirie, unless some special circumstance or circumstances rendered some deviation from the rule advis- able. The seigniory was the basal unit of the colonial land- tenure system. Seigniorial grants were not regulated, in regard to their area, by any fixed rule, but were in this respect left to the discretion of the royal officials in the colony. Hence they varied very widely in extent, ranging from small plots con- taining only a few square arpents, to huge tracts containing many square leagues and more extensive than many European principaHties. ^ In determining the area several things were taken into consideration, — the rank of the grantee, his ser- vices to the crown, his means, the location of the grant ( whether favorable or otherwise ), the nature of the land, and so on. As a rule, the boundaries of the grant were stated in the title-deed with a fair degree of definiteness ; but not infrequently the delimitation was so vague or ambiguous as to result in subsequent disputes. The reason for this confusion seems to have been that the applicant, in making his petition, usually described the bounds of the territory, and the authorities, in drafting the deeds, merely followed this description, which would later often prove to be inaccurate. Surveys preliminary to the making of seigniorial grants seem almost never to have been made. The common practice was, apparently, to fix the bounds of a new grant by reference to some grant or grants already made;^ and, when these had themselves been vaguely defined, abundant room for dispute was afforded.^ 1 The seigniory of Minville, for example, was sixteen by fifty arpents, that of Gubin ten by twelve leagues. See Titres des Seignettries, 296, 367. 2 For example, the seigniory Des Islets de Beaumont (1672) comprised "all tJiat quantity of land which may be found on the River St. Lawrence between the property of the Sieur Bissot and that of M. de la Durantaye" {Ibid. 298). •'' In 1676 the king gave orders that all seigniorial grants should be located ciintiguously (Edits et Ordonttances, i. 90). There seem, nevertheless, to have been frequent departures from this rule. 56 THE SEIGNIOR AND HIS SUPERIORS. Whatever the area of the seigniorial grant, however, or wher- ever its location, it invariably assumed the shape of a parallelo- gram, with the shorter side fronting on the river, a fact which, as will be seen later, had a very interesting and important bearing on the system in the final period of its history, and was in- directly one of the most potent causes of its downfall.^ On being placed in possession of his seigniorial grant, the seignior was put under certain well-defined obligations toward the company or the crown as dominant seignior. First among these was the performance of the ceremony of fealty and homage {foi et hommage), an obeisance which has always been accounted an indispensable obligation of every seignior to his dominant lord. In the heyday of feudalism the ceremony consisted of two quite distinct parts, — the taking of an oath of fealty or allegiance involving pledge of fidelity, and the performing of some symbolic act of homage expressive of submission to con- trol ; but as the two parts were invariably performed on the same visit of the seignior to his dominant lord, the ceremony in time lost its double significance. In New France the seignior was under obligation to appear, within a reasonable time after coming into possession of his fief (whether by grant, purchase, or succession), or upon the occasion of each succession to the French throne of a new sovereign, before the royal representa- tive at the Chateau de St. Louis in Quebec, there with uncovered head and on bended knee to render his fealty and homage. When the colony passed into the hands of Great Britain the obligation continued in existence, and was regularly rendered by the seigniors to the representative of the new sovereign, the governor-general.2 The last act of fealty and homage was ^ Below, pp. 235-238. 2 In Actes de Foi et Hommage, iv. 43, is found a detailed description of this cere- mony as performed by one of the seigniors before General Murray, the first British governor-general : " In the year 1760, on the 23rd of December in the forenoon, in the presence and in the company of royal notaries in the military court and council of Quebec, Jean Noel, dwelling in this city . . . repaired to the government house of Quebec, and at the principal door or entrance of the said house, where being, the said Noel, having knocked at the door, there immediately came a servant, of His Excellency James Murray, governor-general of Quebec, and the said Noel having demanded of the said servant if His Excellency James Murray was in his aforesaid THE SEIGNIOR AND HIS SUPERIORS. 57 performed on the eve of the abolition of the seigniorial system in Canada, February 3, 1854, by J. S. C. Wurtele, Esq., be- fore Major-General William Rowan, administrator of the colony. In addition to rendering fealty and homage, the seignior was obliged, within the space of forty days after receiving his grant, to deposit with the proper authorities at Quebec an aveit et denombrenient. This was a paper comprising two separate documents, — the aveu, which was a general map or plan of the seigniory, showing its location in the colony, its boundaries, and configuration, and tho-denombreinejit, which was, on the other hand, a detailed description or census of the seigniory, setting forth the circumstances under which the grant was originally made and the manner in which it had come into the hands of the present owner, together with the terms of tenure, the acreage {arpentagi) of the seigniory, the degree or degrees of jurisdiction possessed by the seignior, and various other data. Within forty days after a mutation in the ownership of a fief, the aveii et detiombrement was filed again, and in this case a detailed statement of the progress made in the development of the seigniory was included. This report set forth the number of acres cleared and the num- ber under cultivation, the number of subgrants made either en arrikre fief or en censive, the number of settlers on each grant, the amount of produce raised by these settlers in the last year, government house, the said servant said that His Excellency was within and that he would go and give him notice, and His Excellency having appeared, the said Jean Noel, in accordance with his duty as a vassal, without sword or spur, his head uncov- ered, and one knee on the ground, said to him that he performed faith and homage on account of his land and seigniory of Tilly and Bonsecours holden in full fief of His Britannic Majesty, which fief belonged to him as eldest son and heir of the late Philippe Noel his father . . . which faith and homage His Excellency received from the said Jean Noel, who made oath on the Holy Evangelists to be faithful to His Britannic Majesty, to do nothing contrary to his interests, to keep his vassals in the obedience which they owe to their king, the present faith and homage received sub- ject to the condition on the part of the said Noel to furnish his aveu et denombrement within the usual time, and the dues which he may owe by reason of the mutation of the said fiefs and seigniories agreeably to the original title-deeds. Of all of which the said Jean Noel has demanded Acte of the undersigned notaries, who have granted him the same . . . and His Excellency has signed, also the said Jean Noel. . . . "J. Murray, Jean Noel, Barolet, Panet." 58 THE SEIGNIOR AND HIS SUPERIORS. the number of horses, cattle, sheep, and swine in the seign- iory, the location and structure of the seigniorial manor, mill, and church, if such had been erected, the presence of any oak or pine timber suitable for use in the royal shipyards which might have been found within the limits of the grant, and a statement of the profits annually derived from the seigniory. ^ In many of the title-deeds the stipulation was made that an aveu et denoinbrement should be made at certain specified times whether the seigniory changed hands or not,^ the usual period in such cases being an interval of twenty years. These returns were placed on file at Quebec, and formed a most convenient source of data for the compilation of the frequent reports re- quired by the home authorities as to the agricultural progress of the colony. One cannot but admire the facility with which the colonial officials were able to present detailed statements of conditions in New France on the shortest notice. Requests for such statements came from the French government by the spring vessels, and the returns had to be transmitted by the same ships when they sailed in the autumn. In almost every case the governor and intendant were able to compile the desired reports from the data on file in their office at Quebec ; and, so far as one may judge at the present day, these reports were accurate and trustworthy. It was the system of aveu et d^nom- brcmefit that rendered statistical data so accessible. A third obligation imposed upon the seigniors was that of subgranting the lands within their seigniories, or, as it was officially called, XhQJeu defief. This obligation has an especial interest from the fact that it had no existence in France, but was peculiar to the colony ; it is one of the features which served to give the seigniorial system, in Canada a character and individuality somewhat distinct from that which it possessed in the motherland. Its introduction into the colony marks an attempt on the part of the royal authorities to modify the system in such a way as to adapt it to the circumstances of a ^ Cotittime de Paris, articles viii, x, xi; cf. also Report of the Solicitor-General to the Council, 1790, Titles and Documents relating to the Seigniorial Tentire, i. 27. 2 See, for example, the title-deed of the seigniory of Isle aux Ruaux, Titres des Seigneuries, 46. THE SEIGNIOR AND HIS SUPERIORS. 59 new country whose most pressing need was an influx of set- tlers. The Custom of Paris, which was, one might say, the common law of New France, imposed upon the seignior no obligation to subinfeudate his fief. On the contrary, it expressly forbade the alienation of more than two-thirds of its extent, and even up to that point permitted alienation only under certain conditions.^ For a considerable time after the introduction of the seigniorial system in New France, the seigniors were left entirely free to alienate, subgrant, or otherwise dispose of their holdings on whatever terms might seem best to themselves ; or, on the other hand, they were left just as free to refuse to alienate or subgrant any portion of their seigniories. Down to 171 1 not a single seigniorial title-deed definitely imposed any obligation to sub- grant lands; and after that date only four deeds contained any reference to such condition.^ The seignior was regarded by the crown, not as a mere Jideicommis, but as having a dominium plenum in his grant. It was, however, as has been already noted, the earnest desire of the French crown to have the colony settled as rapidly as possible ; and it was not very long before the marked propen- sity of many seigniors to hold their grants for speculative purposes began to stand in the way of the royal desires. Settlers found, on arrival in the colony, that they had either to take up unfavorable locations in out-of-the-way seigniories, or else pay a bonus to the more favored seigniors for choice locations; and, naturally enough, they protested. As it was not the intention of Louis XIV that the seigniorial system should 1 " Le vassal ne peut demembrer son fief au prejudice et sans le consentement de son seigneur : bien se peut jouir et disposer et faire son profit des heritages, rentes, ou cens, etant du dit fief sans payer profit au seigneur dominant, pourvu que I'alien- ation n'excede des deux-tiers et qu'il en retienne la foi entiere et quelque droit seigneurial et domainal sur ce qu'il aliene " (^Coiitume de Paris, article 11). ^ These were the deeds to the following seigniories : Beaumont, April lO, 1 713, granted " subject to the condition of conceding the said lands at a simple rent charge" {Titres des Seignet0-ies,64) ; Mille Isles, March 5, 17 14, the grantee "to concede the said lands subject to simple dues" {Ibid. 59) ; Deux Montagnes, Octo- ber 17, 1 71 7, the grantee "to concede at a simple rent charge ... as provided" {Ibid. 337); St. Jean, April 18, 1727, "subject to the condition . . . not to concede the said lands except on a simple rent charge " {Brevets de Ratification, 84). 6o THE SEIGNIOR AND HIS SUPERIORS. thus operate as a hindrance to colonial development, he inter- vened, as soon as the matter was brought to his notice, in such a way as distinctly to limit the seigniorial pretensions. The first reference — but a very indirect and inconclusive one — to the existence of any obligation on the part of seign- iors to subgrant their lands appears in the title-deed of the seigniory of Ste. Anne de la Perade, in 1672. One of the con- ditions named in this deed was that the seignior should, " in granting lands, stipulate with his habitants or tenants {tena72cicrs) in such wise as to compel the latter to take up residence upon their grants within the space of one year from the date of concession." 1 This clause can, however, scarcely be taken as implying any obligation to subgrant ; it merely provides that, if the seignior did choose to make subgrants, he must, in such cases, impose a certain condition. From 1672 onward, this or a similar clause appears in a number of deeds.^ In a few cases the bond stipulates that the seignior himself shall reside on his land, without obliging him to exact any similar condition of his tenants. ^ In at least one case, that of the seigniory of Ste. Anne des Monts (1688), the wording of the deed is such as to imply that the power of subgranting seigniorial lands is permissive and not mandatory, for reference is made to "those grants which the seignior will be allowed to make in the said seigniory,"* As a matter of fact, some of the seigniories were too small in extent to permit any subinfeudation ; such, for example, was the seign- iory of Isle aux Ruaux, granted to the Jesuits to be used as a pasture for their stock, and none too large for this purpose alone.^ The seigniory of Isle St. Joseph, near Three Rivers, which comprised less than fifty arpents in all, is a type of the small seigniory to which any requirement of subinfeudation can scarcely have been intended to apply.® In some few cases the right to subgrant lands within seign- iories was expressly restricted by provisions contained in the title-deeds. Thus, the deed of the seigniory of D'Autray con- ^ Titres des Seigneuries, 275. 2 For example, the title-deed of Longueuil, Ibid. 99. * Ibid. 329. 5 ji^ij^ ^6^ 3 Ibid. 12. 6 Ibid. 85. THE SEIGNIOR AND HIS SUPERIORS. 6 1 tained a clause providing that grants might be made " only to persons already residing in New France " ; while the deed con- veying the island of Montreal to the Seminary of St. Sulpice permitted the making of grants " only to persons not already inhabitants of New France but who shall emigrate thither." ^ In the deed of the Isle aux Coudres to the Jesuit seminary at Quebec appears the provision that the lands shall be settled only by per- sons belonging to the seminary or directly connected therewith. ^ In the face of these facts, it can hardly be maintained that, down to 171 1 at least, any obligation rested upon the Canadian seigniors as a class to subgrant lands within their seigniories to all who should apply for such grants. In fact, during the earlier days of the colony's history there would seem to have been no need of the establishment or imposition of any such obligation ; common prudence would ordinarily have been enough to induce any seignior to adopt the means which were obviously the easiest and most effectual for settling his seigniory and thus increasing its value. From time to time, to be sure, the king emphasized his desire to have the lands of the colony cleared ; but down to 171 1 no attempt was made to insist upon the adoption of any particular means of attaining this end. So far as the law was concerned, the seignior could fully satisfy the royal desires by having the lands cleared by hired labor if he should see fit, instead of by making en ccnsive grants ; for the mere reiteration of the royal desire for the speedy clearing of the lands could scarcely be construed as establishing a legal obligation to subinfeudate. Unfortunately, however, the Cana- dian seignior, by his persistent neglect to have his lands cleared either through his own enterprise or through that of others, and by his policy of holding his uncleared lands for specula- tive purposes, forced the king, in the end, to drastic action. His first decisive step was the issue of the Arrets of Marly in 171 1, one of which provided that "within a year at the farthest - . . all the inhabitants of New France to whom His Majesty has granted lands en seignenrie, who have no domain cleared and who have no settlers upon their grants, shall be held to bring ^ Titres des Seigneuries, 356, 365. ' Ibid. 322. 62 THE SEIGNIOR AND HIS SUPERIORS. them under cultivation by placing settlers thereon." ^ The un- equivocal language of this arret was fully understood as estab- lishing an obligation to subgrant lands ; ^ for, in the arret drafted some years later by Messrs. Deshaguais and Dagues- seau, reference is made to the Arrets of Marly as having " obliged seigniors who have lands for concession within the limits of their seigniories, to concede them as an essential to the settlement and growth of the colony."^ Futhermore, the whole tenor of the Arret of Versailles (1732),^ and of the royal declara- tion of 1 743,^ serves to establish beyond doubt that the king de- sired to place the seigniors under a legal obligation to subgrant the lands within their seigniories ; and that it was, moreover, the royal wish that every settler who went to the colony should be entitled to demand a concession out of the ungranted lands of any seigniory, and to receive such without the necessity of paying therefor anything save and except the ordinary seign- iorial dues at such times as these might become payable. It was in order to insure these rights to settlers that the king empowered the governor and intendant to make the grants whenever the seignior should show an indisposition to do so.^ In the interest of colonial development, this action on the part of the king was highly commendable ; it shows, as many of his orders clearly show, the deep interest which Louis XIV took in everything that pertained to the advantage of New France. After 171 1 the Canadian seignior was no longer possessed of any right of property in the ungranted lands of his seigniory ; he was merely a fideicommis for the crown. His position and powers had, in this respect, become differentiated from those of the seignior at home. A fourth obligation incumbent upon all holders of lands e7t seigneurie was the payment of a mutation fine known as the quint, the only pecuniary tribute rendered by the seignior to the com- pany or the crown as dominant seignior. The amount of the quint, as fixed by the Custom of Paris," was one-fifth of the muta- ^ Edits et Ordonnances, i, 324-325. ^ See above, p. 42. 6 Ibid. 572. ■^ Article xxv. 2 See above, pp. 42-43. * Edits et Ordonnances, i. 531. 8 See above, p. 43. THE SEIGNIOR AND HIS SUPERIORS. 63 tion value of the seigniory; but it was the custom of the com- pany, and this custom was followed by the crown, to allow a re- bate of one-third of the amount paid.^ In several other French contwnes, the payment of the requint, or an additional fifth of the fifth, — making six twenty-fifths in all, — was rendered obliga- tory; but no attempt seems to have been made to exact the requint in Canada. The quint became due and payable upon each mutation of the ownership of a seigniory, whether by sale, by contract equiva- lent to sale, by gift, or by inheritance other than in direct suc- cession.2 Lineal descendants succeeding to seigniorial lands were thus the only ones exempt. As the mutation value of seigniorial lands was never great during any part of the French regime, the amount of revenue derived by the royal treasury from this source was not of importance; and even after the British conquest, when the lands of the colony had undergone a very marked increase in value, the proceeds of the quint formed but a very modest sum per year. In the general list of colonial revenues they make but an insignificant item. During the years intervening between the cession of the colony to Great Britain and the abolition of the seigniorial tenure in 1854, the average income from the quints of all the seigniories was less than fifteen hundred dollars per annum.^ During the dominancy of the Company of One Hundred As- sociates some seigniories had been granted under the special custom of the French Vexin, a small body of rules not form- ing part of the Coutume de Paris, but supplementary to it.* In these cases a mutation fine, commonly called the relief, was sub- stituted for the quint. The relief was the equivalent of one year's estimated revenue from the seigniory, and became due and payable upon every mutation of ownership, whether by ^ Cugnet, Traite de la Loi des Fiefs, 1 1. 2 Coutume de Paris, articles vi, xxiii. Cf. also Cugnet, Traite de la Loi des Fiefs, 9. 3 During the thirteen years 1775-1788 the amount was ;^ 3148. is. 4^/.; during the period 1 803-1 841 it was ;^7385. 95. 40'. See Titles and Documents, i. 40, 175. * The rules of Vexin le Francois relating to the payment of the relief are printed in Abstract of those Parts of the Custom of the Viscounty and Provostship of Paris, •which were received and practised in the Province of Qziebec in the time of the French Government (1772), 14. See below, p. 198, note. 64 THE SEIGNIOR AND HIS SUPERIORS. inheritance, purchase, or otherwise ; there were no exemptions. In some cases the company made the stipulation that one ounce of gold {une maille d'or) should be paid in lieu of the relief.^ The relief does not appear to have been exacted after the conquest. In the collection of laws compiled by order of Gov- ernor Carleton, the provisions relating to the obligation of the relief were omitted on the ground that they had " not lately been operative in Canada." Cugnet declares that the right of exacting the relief had been abrogated by the king " in an edict duly registered at Quebec in 1676." ^ This edict does not, however, contain any express abrogation of the right to exact the rehef ; but it does provide that grants made under the cus- tom of the French Vexin shall henceforth be deemed to be held under the Custom of Paris. In other words, the intention of the edict seems to have been to replace the relief by the quint in all cases in which the original title-deeds had made the former payable. In general, it may safely be said that the payment either of the quint or of the relief was never a substantial burden upon the seigniors or a source of considerable profit to the crown, and that apparently its existence did not prove an important hindrance to the transfer of seigniorial hold- ings. A fifth duty, that of rendering military service, was ex- pected of the seigniors ; but apparently it was not specifically made a condition of tenure, for the obligation does not appear in the title-deeds of any of the seigniorial grants made by the crown. It is true that, in the grant of the whole colony to the Marquis de la Roche, a provision was inserted to the effect that the marquis should make grants to persons on condition that they should " aid in the support and defence of the said coun- try " ; and, furthermore. La Roche was permitted for a short term of years to relieve his settlers from all conditions " except- ing the duty of service in time of war " ; but he made no grants upon this or any other condition.^ The fact is, the French government counted upon the service 1 For example, in the seigniory of Beauport. See Titres des Seignetiries, 386. 2 Cugnet, Traite de la Loi des Fiefs, 5. ^ See above, pp. 18-19. THE SEIGNIOR AND HIS SUPERIORS. 65 of all colonists, whether landholders or not. In all the corre- spondence which passed between the home and the colonial authorities with reference to the military resources of the colony, the liability, and even the willingness, of the whole adult male population of the colony to render military service was taken as unquestionable. This fact appears clearly in the discussion as to the advisability of disbanding regiments in the colony after the purpose for which they had been sent out had been accompHshed. The main advantage claimed for the policy was that the settlement of veterans in New France would add appreciably to its military strength. According to the laws of France, all those holding en fief or en seigneiirie mediately or immediately from the crown were, with their dependents, liable to be called upon for military ser- vice. By an important edict, issued in 1674, Louis XIV made it obligatory that " all nobles, barons, chevaliers, esquires, vas- sals, and others holding en fief or en arrierefief shall, all ex- cuses apart, put themselves in arms, mounted and equipped, according to that to which they shall be held bound, and shall be present on the days and at the places fixed." ^ The terms of this edict, however, were never expressly applied to New France ; and it is at least questionable whether any royal de- cree, issued after 1663, could be binding in the colony without having been enregistered by the Sovereign (Superior) Council at Quebec.^ Furthermore, when the seignior took the oath of fealty, which, in the words of one of the prominent seigniors after 1763, pledged " the fidelity and military service of all possessors of fiefs and arriere-fiefs," he promised his service in arms when called upon.3 In explaining to the home authorities, in 1768, 1 " Lettres-patentes pour la convocation du ban et arriere-ban," August 11, 1674, in Isambert, Recueil General des Anciennes Lois Franfaises, xix. 138-144. 2 This question is discussed at length in Doutre and Lareau, Histoire Ghierale du Droit Civil Canadien, 1 18-127. * Cf. the answers of Charles de Lanaudiere to some of the questions proposed by the "Honorable Committee of the Whole Council," October 17, 1790, Titles and Documents, i. 35, 38. " L'acte de foi et hommage . . . contenant ordinaire- ment una clause relatant les obligations militaires du vassal vis-a-vis du suzerain" (VioUet, Histoire du Droit Civil Fran^ais, 649). 66 THE SEIGNIOR AND HIS SUPERIORS. the main incidents of the seigniorial tenure, Governor Carleton declared : " The oath which the seigniors take is very solemn and binding ; they are obliged ... to discharge whatever they owe to their sovereign, and to appear in arms for his defence in case his province is ever attacked." ^ The ob- ligation of military service on the part of the seigniors, and through them on the part of those holding of them, was thus regarded as having full force and effect, even though it did not appear expressly in any of the title-deeds. This omission has apparently led some writers to the inference that the obhgation had no existence in the colony.^ During the greater part of the French regime the seigniors were forced by the stern logic of facts to be in constant readi- ness to defend their seigniories; for, exposed as it was both to the Iroquois and to the English, the valley of the St. Lawrence was almost never free from marauding bands of raiders, both white and red. The seigniories were scattered along the banks of the stream, often far removed from the nearest fortified post ; and the small force of royal troops kept in the colony was never adequate for the effective defence of any considerable portion of its area. Left thus to shift for himself, the seignior naturally sought to increase the defensive strength of his own habitants, striving in this way to compensate, as far as possible, for the weakness of the central power.^ He also aimed to build his manor-house so that it could be defended against Indian assaults, often constructing it of stone, with small windows and stanch hard-wood doors, and planning the whole with an eye to strength as well as to comfort. In a few cases the seigniorial manor-house assumed the proportions of a mediaeval castle. The commodious chateau of Lemoyne de Longueuil, for ex- ample, was built of solid masonry and flanked by four strong towers, or bastions, each loopholed in such a way as to permit a 1 Carleton to Shelburne, April 12, 176S, in State Paper Office, America and West Indies, vol. cccxxvi, No. t,t,. 2 Cf. Weir, Administration of the Old Rigime in Canada, 67; and Parkman, The Old Regime in Canada, ii. 42. 3 In 1674 Frontenac informed the minister that he had ordered all the seigniors of the colony to drill their habitants as often as possible (^Documents relating to the Colonial History of New York, ix. n6). THE SEIGNIOR AND HIS SUPERIORS. 6/ flanking fire.^ Its resemblance to the fortified castles of France was noted by Frontenac.^ Another way in which the seigniors sought to strengthen themselves in the event of attack was by offering particular inducements to retired soldiers, in order to secure them as settlers on their grants. Such settlers were given desirable locations, and were not infrequently exempted from the pay- ment of the seigniorial dues for a short term of years. They brought their muskets with them, and, in addition to holding themselves in readiness to repel Indian attacks, they rendered effective service in drilling or instructing the other habitants of the seigniories to which they came. Even the religious orders held out special incentives, in their endeavor to have lands within their seigniories taken up by veterans. Perhaps the most striking exemplification of the earnest desire on the part of the authorities to supplement the defensive strength of the colony is afforded by the numerous seigniorial grants made to the officers of the Carignan-Salieres regiment in 1668-1672. This regiment, the first body of regular troops sent out to New France, was one of the best in the French army.^ Originally recruited from the population of Savoy by the Prince de Carignan, it had seen signal service in the wars of the Fronde, and had won distinction in the service of Austria against the Turks. Under the command of Colonel de Salieres it was sent out to Canada with Tracy in 1665, in order that the Mo- hawks might be crushed once for all and the Five Nations in general impressed with the punitive power of France. When it arrived in the colony the regiment numbered about twelve hundred men of all ranks, among its ofhcers being many dashing young scions of the French noblesse. During the next half-dozen years the operations against the Mohawks and other hostile tribes were carried to a successful outcome, and a per- ^ Jodoin and Vincent, Ilistoire de Longuetnl, 296-297. The structure was 170 by 200 feet in area. See also below, p. 167. - " Son fort et sa maison nous donnent une idee des chateaux de France fortifiez " (Frontenac to Minister, October 15, 1698, Correspondance Generale, vol. xvi). * For various details regarding the history of this notable regiment both in Europe and in America, see Benjamin Suite, Le Regiment de Carigttan, in Royal Society of Canada, Proceedings, 1902, Meinoires, sec. i. 25-95. 68 THE SEIGNIOR AND HIS SUPERIORS. manent peace, based upon a new and wholesome respect for the miHtary strength of colonial France, was concluded with the Iroquois. Ordinarily the regiment, when it had finished its work, would have been ordered home again ; for the king could scarcely be expected to bear the heavy cost of maintaining so large a force in the colony.^ Talon, however, came forward with a proposal that an effort be made to keep at least a part of the regiment in the country by inducing officers and men to become settlers ; and with this object in mind the intendant, with the approval of Tracy, drew up and despatched to the minister in Paris an elaborate project of military colonization.^ He placed strong emphasis on the advantages that would accrue from the settle- ment of so many trained soldiers in the colony, mentioning, among other things, the impetus which would be given to the colonial military spirit. He pointed out that, once firmly estab- lished on the land, the soldier would be as completely at the service of the king as if maintained in garrison, while at the same time his support would no longer be a burden on the treasury, — that, in a word, the king would derive all the advantages of maintaining several hundred regular troops in the colony, and this with only the initial expense of placing the soldiers in a position to support themselves. Talon pointed to the Roman system of military colonization as a precedent.^ The discharged soldier settled in New France would, he claimed, develop a 1 Part of the regiment was sent home to France in 1668, but four companies were retained. 2 " Projets de Reglemens qui semblent etre utiles en Canada, proposes . . . par M. Talon," January 24, 1667, Edits et Ordonnances, ii. 29-34. ^ " Cette maniere de donner un pays de nouvelle conquete a son exemple dans I'antiquite romaine, et peut repondre ^ celle en laquelle on donnoit autrefois chez les memes romains les champs des provinces subjugees qu'on appeloit pradia militaria : la pratique de ces peuplespolitiques et guerriers peut a mon sentiment etre judicieuse- ment introduite, dans un pays eloigne de mille lieues de son monarque et du corps de I'etat dont il n'est qu'un membre fort detache, qui peut se voir souvent reduit a se soutenir par ses propres forces. EUe est a mon sentiment d'autant plus a estimer qu'elle fera quelque jour au roi, un corps de vieilles troupes qui ne seront plus \ charge a Sa Majeste, et cependant capables de conserver le corps de cet etat naissant de Canada avec tous les accroissemens qu'il peut re9evoir contre les incursions des isauvages ou les violentes invasions des europeens, meme dans les besoins pressants At. I'ancienne France, fournir un secours considerable a Sa Majeste" {Ibid. 32). THE SEIGNIOR AND HIS SUPERIORS. 69 peculiar attachment to the colony as his own heritage, and would in consequence have a more aggressive interest in its defence.^ He suggested that the lands given both to military and to civilian settlers should be granted on the most favorable terms, ability to serve the crown well in time of war being made the ground of exemption from the usual payments. He pro- posed, in fact, that the title-deeds should expressly state the military nature of the tenure, and that upon the grantees should be imposed the obligation of sending their eldest sons, on attaining the age of sixteen years, to serve the king for a time on garrison duty without pay.^ The proposals of Talon were favorably considered by the king and minister in France ; and in due course the intendant received despatches warmly approving of the projects, and giv- ing instructions as to the manner of carrying them into effect. In accordance with these instructions. Talon arranged to grant seigniories to the officers of the regiment, and in so doing gave locations with direct reference to the vulnerable points in the colonial frontier. The most critical spot of all was the country along the Richelieu River. Though well adapted for settle- ment, it was dangerously exposed to Iroquois attacks, for it lay between the French settlements and the territories of the power- ful and aggressive Mohawks ; hence, much as the French au- thorities wished to have the district populated, settlers had shown no disposition to push out into the region. It was only natural, therefore, that Talon should regard this district as most suitable for the settlement of the military colonists. Accord- ^ " D'un cote, elle epargnoit les finances du tresor public, et que de I'autre, elle interessoit I'officier et le soldat en la conservation du pays, comma en celle de son propre heritage" (^Edits et Ordonnances, ii, 2)Z)- ^ " Et pour le benefice qu'elles [qu'ils] regoivent par la concession de la terre au lieu de cens sur cens, censives ou autre redevances qu'emportent avec soi les conces- sions de ce pays, ils engageront au service du roi leur premier-ne lorsqu'il aura atteint I'age de seize ans, qui commen^era son noviciat dans une garnison des forts, sans qu'il puisse pretendre autre solde que celle de sa subsistance, ou celle qui lui pourra ?tre ordonnee par les etats de Sa Majeste durant le service qu'il rendra. Cette obligation n'ajoute presque rien a celle qu'un veritable sujet apporte au monde avec sa nais- sance, mais il semble que lorsque cette condition est stipulee, elle est moins rude quand elle est exigee que lorsqu'il n'en est rien dit dans les contrats des terres donnees comme se donnent toutes celles du Canada " (^Ibid.'). 70. THE SEIGIVIOR AND HIS SUPERIORS. ingly, generous tracts lying along the river, from its junction with the St Lawrence to a point near the present town of Chambly, were parcelled out e7i seigneiirie among the Carignan officers, who, in turn, were instructed to subgrant the lands among their former soldiers. In all about twenty-five or thirty officers, chiefly captains and lieutenants, together with some- what more than four hundred non-commissioned officers and soldiers, decided to avail themselves of the opportunity to be- come permanent settlers. As neither officers nor men possessed the capital wherewith to develop their grants, the king provided some twelve thousand livres to be divided among the officers as the intendant might deem fit. The sums apportioned out of this amount do not seem to have been granted according to any fixed rule. To the non-commissioned officers and soldiers fixed amounts were given from the royal treasury, each non-commissioned officer receiving one hundred and fifty livres, or one hundred livres and a year's rations, at his choice, and each soldier one hundred livres in cash, or fifty livres and a year's rations, at his option. It was in this way that the progenitors of some of the leading families of French Canada first became settlers in the country. The names of St. Ours, Saurel (Sorel), Soulanges, Contrecoeur, Dugue, Varennes, La Valterie, Vercheres, Perrot, Roque, Morel de la Durantaye, Berthier, Chambly, Lanaudi^re, Granville, and many others will be found in the list of those who received seigniories at this time. Several of these, however, subse- quently returned to France.^ It is interesting to note that, despite Talon's suggestion, there is no express mention of the obligation of military service among the various conditions of tenure imposed in the title-deeds of the military seigniories. In each case, the preamble states clearly the royal expectation that the settlement of the officers in the colony will serve materially to strengthen its capabiHties of defence ; but there is no definite provision that the rendition of service shall be regarded as an incident of tenure.^ As later ^ See Suite, Le Regiment de Carignan, 89. 2 " His Majesty . . . having judged that there were no surer means of making known the greatness of his name and the strength of his arm than to compose this THE SEIGNIOR AND HIS SUPERIORS. 71 events showed, however, there was little occasion for insistence on the obligation : the military seignior proved only too ready to gird on his sword on every possible occasion. Several of them were gentilshommes, who did not take very enthusiastically to the prosaic life of the yeoman, but found their real vocation in border raids along the frontiers of New England and New York. But when ofBcers and soldiers had been placed on the land the project of the intendant was not entirely fulfilled. If the colony was to grow from within, the military settlers must have wives; and of these New France afforded no adequate supply. Even before his plan of settlement was completed, Talon prayed the minister to send out consignments of women, strong and vigorous peasant girls for the soldiers, and fifteen demoiselles, or ladies of gentle birth, for the un- married officers who had now become seigniors of New France.^ The generous king promptly directed that the desire of the intendant be gratified ; and for a few years batches of girls in charge of nuns were sent with almost every vessel. As to the character of many of these mothers of French Canada, some contemporary writers have expressed very un- favorable opinions.^ Lahontan gives a racy description of their arrival and distribution among applicants;^ but his picture is colony of people properly qualified to fill it up by their labor and application to agri- culture and to maintain it by a vigorous defence against the insults and attacks to which it might hereafter be exposed, has sent to this country a number of his faithful subjects, officers of his troops in the Carignan regiment, most of them, agreeably to the great and pious designs of His Majesty, being willing to connect themselves with the country by forming therein settlements and seigniories . . . and the Sieur de la Durantaye, captain of a company of infantry in the said regiment, having petitioned us to make him a grant of land therein ; " We, in consideration of the good, useful, and praiseworthy services which he has rendered to His Majesty in various places, both in Old and New France since he came thither by order of His Majesty, and in view of those which he declares himself willing to render hereafter, . . . have given and granted," etc. (translated from Titres des Seigneuries, 1 5 1 ) . ^ Talon to Colbert, November 10, 1670, Correspondance Generale, iii. 86-87. ■^ William Perwich, English agent in Paris, wrote. May 22, 1669 : " What y* Gaze- tier mentions of 4 or 500 Women going for America volontaryly is false, becaus they are lewd strumpets gathered up by the officers of the citty & transported according to the law" (Camden Society, Publications, 1903, p. 13). ^ Lahontan, Nouveaux Voyages (1709), i. I1-12. 72 THE SEIGNIOR AND HIS SUPERIORS. in all probability overcolored. There is reason to believe that considerable care was taken by the authorities in selecting the prospective brides who were thus transported to the colony ; and yet we have the unimpeachable testimony of Mere Marie de r Incarnation that there was beancoup de canaille among the arrivals.^ So far as can be ascertained, about five hundred women were sent out by the authorities during the years 1669- 1673,^ an enterprise of which the result may be seen in the significant report of Laval that eleven hundred baptisms had been performed during the year 1672.^ According to the census of 1666, the population of the colony was 3,215 souls; in 1673 Frontenac estimated that it was 6,705. If these figures be accepted as accurate, the population had more than doubled in six years ; but there is every reason to believe that Frontenac's estimate was below, rather than above, the mark.* The settlement of the officers and soldiers in the colony seems to have stirred up the lay seigniors to make greater efforts in the direction of securing settlers, and for a time there was considerable rivalry in this respect. The majority of the military seigniors, however, were not very successful : as is too often the case, the good soldier made a very indifferent husbandman, for he lacked both the heart and the capacity for pioneer work. Moreover, the soldiers who settled in their seigniories knew for the most part nothing about farming ; and, finding it hard to make both ends meet, many of them aban- doned their fiefs to their creditors.^ Nevertheless, the estab- lishment of the military cantonments along the Richelieu proved advantageous to the colony in more ways than one. It formed a barrier against the Mohawk incursions ; it enabled the French to establish safe bases from which blows might be directed with stealth and rapidity against the outlying hamlets of New England ; and, in addition, on more than one occasion the Richelieu seigniories contributed generously toward the 1 Mere Marie de I'lncarnation, Lettres, October, 1669. 2 On the increase of population during this period, see Chapais, Jean Talon, 412-413. 3 Colbert, Lettres, Instructions, et Memoir es (ed. Pierre Clement), iii. pt. ii. 54^- * Cf. Chapais, /f a « Talon, ^iZ. 5 Catalogne's report (above, p. 45). THE SEIGNIOR AND HIS SUPERIORS. 73 carrying out of various defensive projects. Thus in 1673, when Frontenac decided to build a fort at the junction of the St. Lawrence with Lake Ontario, the personnel of his ex- pedition was, to a considerable extent, drawn from the disbanded Carignans ; and the success which attended the ex- pedition was attributed by the governor chiefly to the discipline which was possible among a force composed so largely of veterans.^ It is, of course, true that the colony did not depend for its defence upon the seigniorial array alone. As villages and towns grew up, an official known as the captain of the militia icapitaine de la milice) was appointed in each to see that all those capable of bearing arms were duly enrolled and drilled. It was this utilization of almost every adult male colonist which served, among other things, to give New France a mili- tary strength far greater than her population seemed to war- rant. It was this which gave her such remarkable defensive power during the Seven Years' War, when the colony was a huge armed camp. In addition to the foregoing rents and dues, the holder of lands en seigneiirie was under obligation to respect certain royal reservations which were inserted in his title-deed. These varied in different grants, some of them appearing in very few deeds, others in almost all, while a few were so common as to be counted among the permanent incidents of the sys- tem. These were the reservations (i) of lands for fortifications, (2) of timber suitable for use in the royal navy, (3) of mines, ores, and minerals {mines, mineres, et mine'reanx), (4) of rights of way, (5) of the use of beaches, (6) of the right of appeal from the seigniorial to the royal courts, (7) of the right to withhold ratification. Very many of the seigniorial title-deeds contained the pro- vision that His Majesty's representatives might at any time take from the seigniory such land as might be found necessary ^ Among the officers of the expedition were Dugue, St. Ours, Durantaye, and others. See the journal of the expedition, printed in Documents relating to the Colonial History of New York, \x. 95-114; also Frontenac to Colbert, November 13, 1673, Correspondance Generale, vol. iv. 74 THE SEIGNIOR AND HIS SUPERIORS. for the location of forts, batteries, or other military works ; and it was also frequently stipulated that the crown should have the right to take such timber from the forest of the seign- iory as might be needed for the construction of the fortifications, together with such firewood as might be desired for the use of the military garrisons placed in charge of them. For lands and tim- ber so taken, the king was not bound to give any compensation whatever, but he usually did make some return. When lands were taken, for instance, the seignior v/as compensated by a grant of equal area elsewhere ; when building materials were expropriated, monetary indemnification was given. ^ In most cases the seignior was required, by a clause in his title-deed, to report to the royal authorities at Quebec the presence on his seigniory of any oak timber suitable for use in the construction of ships, and to let this remain standing until it should be demanded by the naval officials, who were permitted to take what they desired without paying for it. In a few cases pine as well as oak timber was included within the reservation, and in one or two instances a special reserva- tion was made of " all red or pitch pine suitable for making tar." In almost every grant, stipulation was made that the seignior should give immediate notice to the king (or company) of all mines or mineral deposits found within the limits of his seign- iory, in order that the share accruing to the crown might be exacted. In a very few cases the royal rights in this regard were expressly waived, and stipulation was made that the seignior might retain full ownership in any minerals discov- ered. The king usually reserved the right to open such royal high- ways through the seigniories as the public convenience might from time to time dictate. In fact, some of the grants con- tained a provision that the seignior should himself undertake the building of a road along the water-front of his seigniory. In the case of such seigniories as fronted on the St. Lawrence, ^ A decree of the Sovereign Council in 1664, for example, ordered the payment to the Sieur Poyrier of 150 livres in compensation for timber taken from his seigniory for use in the construction of a casemate. See Edits et Ordonnances, ii. 18. THE SEIGNIOR AND HIS SUPERIORS. 75 the requirement was usually made that the seigniors should refrain from molesting fishermen using the beaches. The colonial as well as the home authorities were desirous of en- couraging the fishing industry ; and they foresaw that, unless the rights of seigniors to the river-front were strictly limited, the fishermen who plied their vocation in the St. Lawrence would be subjected to restraint and annoyance. As will ap- pear later, however, the seignior was entitled to a share in the fish taken in seigniorial waters,^ Whenever seigniors were invested with judicial rights, it was stipulated that they should permit appeals to be carried by suitors from the courts of the seigniory to the royal courts of the colony. This reservation was intended to form a check upon the spread of feudal jurisdiction, and to obviate a too ■extensive growth of private, at the expense of royal, judicial jurisdiction, a precaution which, as will be seen later, was scarcely necessary.^ As has been said, the title-deed to a seigniory was drawn up and signed by the governor and intendant at Quebec, and pos- session was given forthwith ; but the title was to be considered valid only in case the ratification of the king should be forth- coming within the space of one year.^ As a matter of fact, however, this reservation was for the most part purely formal ; for it was only on the rarest occasions that the king withheld ratification or made any important modifications in the original terms of the deed.* In addition to these reservations, there were several prohibi- tions which appeared with considerable frequency in the seign- iorial grants. Of these the most common was the provision that the seignior should not carry on any trade with the Indians, or allow his dependents to do so. Seigniorial grants made during the company regime invariably contained this injunction, and for a very obvious reason ; but grants made by the crown often omitted it. Other prohibitions, — such, for example, as that which forbade the collection of toll from vessels navigating the waters of the seigniors, — are to be found in isolated cases, but ^ Below, p. 140. "^ Below, ch. ix. ' Edits et Ordonnances, i. 89-90. * Cf. above, p. 39. 76 THE SEIGNIOR AND HIS SUPERIORS. they were far from general. In practically every case the inser- tion of them seems to have been dictated by local circumstances. These six obhgations — of rendering fealty and homage, of fil- ing the aveii et denombrement, of subinfeudating the seigniory, of paying the quint (or relief), of rendering military service, and of observing the reservations and prohibitions contained in the title-deeds — were the only ones imposed upon the Canadian seignior. Taken together, they were far from being oppres- sive ; in fact, they can hardly be called unreasonable. In view of the numerous rights which seigniors enjoyed with reference to lands granted within their seigniories, the holder of a seign- iorial grant was by no means the least favored individual in the colony. It was under one or other of these four forms of tenure that all the larger land grants in the colony were made ; but, as has been shown, the typical large grant was that of a seigniory. The others must be looked upon as clearly exceptional. CHAPTER V. THE SEIGNIOR AND HIS DEPENDENTS. In the foregoing chapter an attempt has been made to explain the various tenures under which the larger grants of land in the colony were held, and to analyze the several obligations im- posed by the crown upon the grantees. It is now in order to examine the forms of tenure in which the smaller tracts were held, and to consider, one by one, the obligations imposed by the seignior upon those who held lands within his jurisdiction. Occasionally the seigniors made grants of sub-seigniories, or concessions e7t arrih'e-fief . Grants of this sort were not numer- ous, and yet they can scarcely be called rare. So far as can be learned, there was no dearth of applications for them from incoming settlers of all ranks and conditions, and it seems to be beyond doubt that the seigniors had full power to grant such applications at their discretion ; but very naturally their general attitude was against the creation of sub-seigniories, for the profits accruing to them therefrom were sure to be small. The holder of a sub-seigniory was subject to the six general obligations which were imposed by the crown upon the seign- ior.i The only difference was that the fealty and homage of the sub-seignior was rendered to the seignior and not to the representative of the crown ; the aveii et denombrement was filed with the seignior, and not with the registrar at Quebec ; and the quint, when payable, went to the seignior instead of into the royal treasury. In making grants of sub-seigniories, the ^ At the time of the abolition of the seigniorial system in 1854, the point was raised that the Arrets of Marly (1711) did not apply the principle of compulsory sub- infeudation to these sub-seigniories. This, however, was not sustained by the Special Court. 77 y8 THE SEIGNTOR AND HIS DEPENDENTS. seigniors usually inserted such reservations and prohibitions as had been imposed upon themselves ; but the only financial emolument accruing to the seignior from the sub-seignior was that derived from the payment of the quint, and the amount of this was rarely of any substantial consequence. It is not strange, therefore, that seigniors preferred to have settlers take their lands, not en arrikre-fief, but en censive, or en rotnre ; for, as will be seen later, the seigniorial rights over such grants were much more extensive, and were more likely to be remunerative. When grants of sub-seigniories were made, there seems always to have been some special reason for giving lands under this tenure. In some cases they were made to relatives of the seignior ; in others they were made because the sub-seignior, in return, agreed to bring over from France a certain number of settlers ; and in still other cases, especially during the periods when the king decided to make no grants of seigniories, they were made to incoming settlers of rank and influence who would ordinarily have received full seign- iorial grants. Sub-seigniories usually took the same physical form as the seigniory within which they were situated, — the shape of a parallelogram with its shorter side fronting on the river. In extent they varied greatly, sometimes comprising half of the main seigniory, but more often only a few hundred square arpents of land. With very few exceptions, when an individual applied to a seignior for a grant of land, he received a small farm to be held en censive, ox en rotnre, and thus became technically a "censitaire" or "roturier" of the seignior. ^ These terms were, however, held in such aversion by the peasants that they were very rarely used ; even in the official documents of the old regime the term " habitant " was usually employed instead. Between tenure en censive and tenure en rotnre there was in the colony practically no difference. The former expression implied that the land was held subject to the payment of an annual due known as the cens {a titre de cens) ; while the latter indicated that the tenure was a base and not a noble one, and 1 Hallam {Europe during the Middle Ages, 3d ed., i. 207) points out that there are no English words which properly translate these terms. THE SEIGNIOR AND HIS DEPENDENTS. 79 that it was, consequently, subject to a different rule of succes- sion from that which regulated the descent of seigniories or sub- seigniories. For all practical purposes the terms may be used synonymously. In a very few cases, grants en ccnsive were obtained directly from the crown and not from a seignior. Some town lots in Quebec were granted in this way, but it was because the land from which the grants were made belonged to the crown. In another instance, some settlers upon en censive lands in the vicinity of Fort Pontchartrain (Detroit) received their title-deeds from the governor and intendant. In this case, titles to the lands which they occupied had, in accordance with the royal instructions, originally been given them by Lamotte-Cadillac, commandant of the fort ; but, the deeds proving to be irregular, the king, in 17 16, ordered all grants to be cancelled and new titles to be issued in regular form,^ a command which was executed some years later.^ These two cases must be regarded as ex- ceptional ; for, as a rule, incoming settlers were compelled to apply to the seigniors for their locations. In extent, grants en censive varied considerably. Although in almost every case they assumed the oblong shape, they ranged in width of river frontage from one to five lineal arpents, and in depth from ten to eighty arpents.^ In making subgrants, most of the seigniors do not appear to have followed any fixed system of survey, the boundaries of allotments being indicated with considerable carelessness. One grant would be made ; then others would be given alongside it, the more favorable locations being first chosen, and each subsequent grant being delimited in its title-deed by reference to a former concession. Frequently a settler took up a plot of land, and, having decided that it was worth keeping, applied for and received from the seignior a title to the land " held by " him, without any further description of its extent. Many settlers took up locations with- out titles of any sort, others on the mere word of the seignior, ^ Jugements et Dclibi-ratioiis du Conseil Superieur de Quebec, vi. 1 21 3 (December I, 1716). 2 Titres des Seigneur its, 173-175. * As noted above (p. 24), the lineal arpent was equivalent to 192 English feet. 8o THE SEIGNIOR AND HIS DEPENDENTS. and still others on informal tickets which established nothing but the fact of the grant. To this haphazard method of allotting lands en ccnsive many of the difficulties which arose between the seignior and his habitants, and between the habitants themselves, can be directly traced. The one feature in which there was almost absolute uni- formity was the peculiar shape assumed by all the land- holdings in the colony, whether en seignenrie, en arriere-fief, or en censive. Mr, Suite has endeavored to determine definitely the origin of this peculiar method of shaping grants, distinct traces of which remain in the configuration of the farms along the St. Lawrence River to-day, and which is further perpetuated in the present counties of Quebec, which in many cases are co- extensive with the old seigniories and bear their names. Mr. Suite is inclined to credit the origin of the system to Jean Bourdon, the first surveyor-general of New France, who is said to have thought it wise, in locating seigniories, to economize the frontage granted along the river, but to be generous as to the depth of the grants.^ This plan, it is claimed, gave the seigniors a formula which they followed closely in making their subgrants both en arrih'e-fief 2Si^ eji censive? It seems to be more likely, however, that the system merely grew out of the conflicting desires of the crown and the seigniors. Most of those who petitioned for grants of seigniories in New France were men of some rank, and it was only natural that they should want grants of extensive area. These the king, in his desire to induce men of position to emigrate to the colony, was willing to give them, until he found that most of the lands were allowed to remain undeveloped, and that the seigniors were holding them for speculative purposes. Down to the close of the seventeenth century, therefore, extensive grants were the rule. Now, those who appHed for extensive seigniorial grants naturally desired to obtain lands fronting on the St. 1 See Mr. Suite's article on " The Seigniorial Tenure in Canada," in Canada : an Encydopadia of ike Country (ed. J. Castell Hopkins), vol. iv. 2 See Jean Bourdon's map of the seigniories on the Lower St. Lawrence (1641), reproduced in Tanguay, Dictionnaire Genealogique des Families Canadiennes, vol. i, Appendix. THE SEIGNIOR AND HIS DEPENDENTS. 8 1 Lawrence and situated between Quebec and Montreal, because the river, both in summer and in winter, formed the great high- way of communication. As the amount of this frontage was not unlimited, the authorities had to see that individual seigniors did not receive too much of it ; on the other hand, since there was plenty of land back from the water-front, there appeared to be no immediate necessity of restricting the depth of grants. Hence they gave the seignior access to the river, but only within moderate limits ; and they gave him an extensive area, but only by running his seigniory miles back into the uplands. There was, moreover, a reason why the seigniors actually preferred the narrow river frontage. At an early period the colonial authorities began the construction of a road along the north shore of the St. Lawrence from Quebec to Montreal, and issued orders that every seignior should build that part of the road which was to lie in his seigniory, while the sections through the ungranted lands were to be built by the crown. ^ As those who applied for seigniorial grants were, of course, not anxious to assume the obligation of constructing any more of this road than was necessary, they probably interposed no ob- jections to receiving their grants in that shape which, while giving them plenty of land as well as access to the river, at the same time reduced the obligation and burden of road-building. Eventually a good road, built by the seigniors and the author- ities, extended all the way from Quebec to Montreal along the north shore of the St. Lawrence, passing through the front of each seigniory and giving the whole colony, as Lord Durham afterward remarked, "the appearance of a never-ending, strag- gling village." ^ The same reasons which impelled the authorities to grant seigniories in this shape influenced the seigniors to make en censive grants in oblong form. The habitants wanted lands along the river in order to be near their neighbors on the common waterway ; and after the road was built the desire for front locations was, if anything, even stronger. Moreover, a grant which ran back a long distance from the river had the 1 Edits et Ordonnances, iii. 412-413. 2 Durham, Report on the Affairs of British North America (1839), II. 82 THE SEIGNIOR AND HIS DEPENDENTS. advantage of giving the holder a variety of land, the slope toward the river being very well suited for cultivation, the uplands affording pasture, and the hills farther inland timber and firewood. These grants along the river-front, extending, as they did, frequently a mile or more inland, formed what was called the " first range " ; it was only after all the good land in this belt was taken up that settlers resorted to the "second range" farther back. But in this adaptation of the shape of the grants to the immediate convenience of the authorities, the seigniors, and the habitants, a very serious ultimate disadvantage was apparently not foreseen. This evil resulted from the repeated partitioning of the seigniories and en censive farms among the heirs of holders. By the terms of the Custom of Paris, not more than one-fifth of a holding, whether en seignenrie or en censive, could be devised or otherwise disposed of, except by actual deed of sale, to the prejudice of direct or collateral heirs, who may be said to have had the expectant reversion of the other four fifths.^ The rule of succession differed considerably in the two classes of land, however, as the following summary shows : — In the case of lands held en seignetirie, the eldest son took the chief manor-house or seigniorial residence {chateau ou manoir principal), the inner yard {basse conr), and one superficial arpent of land adjoining the house, which was supposed to include the garden {un arpent de terre de Venclos et jardiri). He also took the banal mill, if it happened to be within this enclosure ; but the profits of the mill went to all the heirs in proportion to their landed inheritance. This right on the part of the eldest son was known as the droit d' ainesse, or principle of primo- geniture.^ The remaining lands of the seigniory were disposed of in four ways: (i) when there were but one son and one other child, the eldest son took two-thirds, his brother or sister the remaining third; (2) when there were a son and more than one other child, the eldest son took one half, and the remainder of the seigniory was divided equally among the other children without distinction of age or sex;^ (3) when there were no male 1 Coutume de Paris, article ccxcii. ^ Ibid, articles xiii-xiv. * Ibid, articles xv-xvi. THE SEIGNIOR AND HIS DEPENDENTS. 83 children, the daughters divided the whole seigniory equally among themselves, without any distinction as to priority of birth ; ^ (4) when there were no direct heirs, the estate went to collaterals, but male and female collaterals did not share equally.^ Lands held en cerisive, on the other hand, were partible among the heirs without any preference of older to younger or of male to female. All direct heirs took share and share aHke ; in the absence of direct heirs, all collaterals shared equally.^ Lands held en franc aleic noble followed the same rules as lands en seigneur ie, lands held en franc aleu rotnrier the same as lands en censive.^ The effects of this system of succession soon began to show themselves. Each participant in an inheritance manifested a desire to have his share front on the river, with the result that at each partition the frontage was narrowed, the depth of each plot remaining as it was in the original grant. In the case of the seigniories the evil was not so great, for in most instances the river frontage had been liberal at the outset; but in the case of e7i censive holdings equal division of the land be- tween all the heirs of a holder soon reduced the frontage to such a narrow margin that the plots assumed a ludicrous shape. The holdings became mere ribbons of land, in some extreme cases with a frontage of less than two hundred feet and a depth of more than a mile. The evil was not, as in France, that of morcellement, for in point of superficial area the habit- ant often continued to be well provided with land ; but the abnormal shape of his holding seriously lessened its value. As his house and barns were usually located at the front of his tract, the processes of agriculture necessitated considerable travelling back and forth on the part of those who worked the land, a necessity which too often resulted in the practice ^ Coutume de Par.is, article xix. ^ /^^v/, article xxv. ^ Ibid, article cccii. * Ibid, article Ixviii. These various articles may be conveniently found in Sequel of the Abstract of those Parts of the Custom of the Viscounty and Provostship of Paj-is, which were received and practised in the Province of Quebec in the time of the French Government (1772). See also Doutre and Lareau, Histoire Generate du Droit Civil Canadien, 87 ff; and Report of the Solicitor-General, 1790, Titles and Documents i- 31-33- 84 THE SEIGNIOR AND HIS DEPENDENTS. of tilling the front of the farm and letting the rear grow wild. In more ways than one the peculiar configuration of the farms seems to have militated against rotation of crops, and to have hindered agricultural improvements in general. Furthermore, the fact that the children participated equally in inheritance to en censive lands offered a temptation for them to remain at home even after it had become apparent that their shares would be too small to support them properly ; and the situa- tion was aggravated by the prevalence of very large families, a feature which has characterized the social development of the Norman race in the New World from its first establishment to the present day. In the autumn of 1744 the governor and intendant, in a long report to the French minister, complained of the bad effects which were beginning to attend this continued subdivision of farms, an evil to which, among other drawbacks, they attributed in considerable degree the small harvests of 1743 and 1744.-^ To this appeal the king promptly responded in the following year with an ordinance relating to the practice. This document, after declaring the royal opinion that the principal hindrance to agricultural progress in New France was the ill-advised endeavor of a large part of the habitants to eke out a living from farms of too small area, ordered that no habitant should thenceforth build his house and barn on any piece of land less than one and one-half lineal arpents in front by thirty to forty arpents in depth. ^ That the authorities were in earnest in en- forcing this ordinance is shown by the fact that four years later the intendant Bigot decreed the demolition of certain houses which had been erected by the habitants of the seigniory of L'Ange-Gardien upon pieces of land the areas of which were shown to be less than that prescribed in the royal order.^ It seems somewhat strange that, in a colony where land was so abundant and where grants could be freely had on such favorable terms, the authorities should have found it necessary to inter- vene in this rather harsh fashion. Although clearings were made 1 Beauharnois and Hocquart to Minister, October 12, 1744, Correspondance Gene- rahs Ixxxi. 35 ff. 2 Edits et Ordonnances, i. 5S5-5S6. ^ Ibid. ii. 400. THE SEIGNIOR AND HIS DEPENDENTS. 85 slowly, at no time during the French era was the population of the colony large in proportion to the amount of land actually granted. It has been estimated that in 1760 the average land- holding, cleared and uncleared, per family was not less than one thousand superficial arpents ; ^ and none of this, it must be re- membered, could be permanently held for speculative purposes, for the authorities stood ready to see to it that habitants obtained on very reasonable terms all the land that they could properly cultivate. It may be added that the evils of which the officials complained in 1744 have not been eradicated in French Canada even at the present day. The obligations imposed by the seigniors upon holders of en censive grants were determined fundamentally by the Custom of Paris ; but the provisions of this custom might be, and frequently were, altered by decrees and ordinances. Though the obliga- tions were numerous, they may be grouped into three categories : those which were remunerative or were a source of profit to the seignior ; those connected with the administration of seigniorial justice, which might or might not prove remunerative ; and those which were of a purely honorary or ceremonial character. First in logical order among the remunerative obligations imposed by the seignior upon his habitants was that of paying the annual cens et rentes. This payment, though ordinarily re- garded as forming a single due, may be separated into two parts, each of which had a different origin and nature. The cens has been defined by a leading commentator on the Custom of Paris as " a moderate annual tax imposed in recognition of the seign- ior's direct authority ";^ and it is true that in New France the cens was usually regarded as a merely nominal payment, valu- able not in itself but as establishing the seignior's legal right to other and more important dues and services. As to the origin of the cens there is much difference of opinion among writers on the seigniorial system in France. 1 Tache, A Plan for the Commutation of the Seigniorial Tenure, Appendix. In I739> when the last complete census of the French period was taken, the area of cleared lands was 180,768 arpents, and the population 37,716, — or five arpents of cleared land per capita {Censuses of Canada, 1665-1871, p. 57 ; also below, p. 237). '■^ See Dumoulin, Coutumes de la Prevdtc et Vicomte de Paris (1681), under " Cens." 86 THE SEIGNIOR AND HIS DEPENDENTS. Herv^ believes that the payment was not, in its origin, a merely- nominal due, but that it was a real rental {redevance\ entailing a burden upon the censitaire and resulting in substantial profit to the seignior. He claims, however, that through successive depreciations in the value of French currency, it came to be merely nominal in amount. " At the beginning of the thirteenth century," says he, " the silver mark, which is of fixed weight, was worth three livres ; to-day [1786] it is worth fifty-four livres, thus showing an eighteenfold depreciation of the latter." He calculates that one sol of cens in 1350 would correspond in burden to nearly two livres in the currency of the latter part of the eighteenth century ; for, since the rate of cens was fixed in sols per superficial arpent, — that is, in fractions of the livre, — a cheapening of the livre meant a diminution in the burden of the cens. In other words, he estimates that a censitaire who in the eighteenth century was paying only one or two sols per arpent was rendering to his seignior what would have been a rental of very substantial amount four or five centuries before.^ This explanation, though bearing the air of plausibility, is open to some important objections. During the interval be- tween the fourteenth and eighteenth centuries there was no doubt a great depreciation in the value of the livre, and conse- quently of its fractions the sol and the denier, in terms of which the rate of cens per arpent was fixed ; but this depreciation seems to have been neither so regular nor so exact as Herve infers. Great changes in value took place even within a single century. In some years of the fourteenth century, for instance, the depreciation of the livre (in terms of the silver mark) was greater than at any time in the seventeenth.^ ^ Herve, Theorie des Matures Feodales et Censuelles, v. I09-IIO. 2 The variations in the value of the silver mark in terms of the livre and its frac- tions, by centuries, seem to have been as follows : — 1 200-1 300, from 40 sols to 3 livres, 15 sols. 1300-1400, from 2 livres, 4 sols 1400-1500, from 6 livres, 5 sols 1 500-1 600, from II livres 1600-1675, from 20 livres to 102 livres. to 26 livres. to 19 livres. to 33 livres, 16 sols. This table is compiled from I.e Blanc's Trait'e Historique des Monnoyes de France ^Amsterdam, 1692). The fluctuations in the value of money during the period in- THE SEIGNIOR AND HIS DEPENDENTS. 8/ Quite another explanation of the low rate at which the cens was fixed is that given by Henrion de Pansey, who maintains that the cens was from the very first not a source of emolument to the seignior and not intended to be such, but that on the contrary it was imposed as a badge of ignoble tenure. It grew, he claims, out of the principle expressed in the feudal maxim Nulle terre sajis seigneur, and was exacted as a symbol of seign- iorial dominance.^ In confirmation of his view he cites various royal arrets providing that, if no payment of the cens had been stipulated for by the seignior, or if the payment had been inter- rupted, the seignior must forthwith create or revive it in order to hold valid his other seigniorial rights ; and in creating or reviving the payment, he was, according to the terms of these arrets, to accept the rates current in the neighboring seigniories.^ In France, during the seventeenth and eighteenth centuries, there was of course no uniform rate of cens. The rate varied in different jurisdictions, but it was never high enough to form a real burden. The rate per arpent was ordinarily fixed by the terms of the original grant eji censive ; when it had not been specified on that occasion, the rate payable was that which happened to be current in the neighborhood.^ It must be understood, however, that in France the seignior was nowhere compelled to subgrant his lands; nor was he, when he chose to subgrant, bound to do so at the rate current in the vicinity. He was under obligation to accept this current rate only when a stipulation of the precise rate had not been made in the original title-deed. In Canada, tervening between the twelfth and nineteenth centuries are also discussed in Avenel, Histoire Economique de ia Propricte, des Salaires, des Denrees, et de tousles Prix en general depuis Pan 1200 jusqi£ en Pan 1800 (4 vols., Paris, 1894-1898). 1 This seems to have been the view taken by the colonial authorities : " Une redevance si modique, qui est plutot donnee in recognitionetn domini et pour la ninrque de la directe seigneurie, que pour faire un revenu de quelque consideration au seigneur" (^Edits el Ordonnances, ii. 489). ^ Henrion de Pansey, Dissertations Feodales, i. 269, 295. ' " As regards the amount of the cens, it is regulated by the titles if such there be ; and where there is no title fixing the amount, custom, that is to say the amount most ordinary in the same place, governs it ; it is in this last case a sure and decisive guide" (Lafontaine, Observations, 166, citing Bourjon, Le Droit Coinmun de la France et la Cotttume de Paris redicits en Principes, i. 266). See also the references given by Lafontaine to many other authorities. 88 THE SEIGNIOR AND HIS DEPENDENTS. on the contrary, owing to the persistent royal intervention in the interest of colonial progress, the fixing of the rate of cejis was not permanently left to the discretion of the seignior ; for early in the eighteenth century he was placed under obligation to subgrant lands to settlers at the rate customary in the neighbor- hood, without having any legal right to demand a higher rate.^ In the charters granted to the Marquis de la Roche in 1598, to the Company of One Hundred Associates in 1627, and to the Company of the West Indies in 1664, no stipulation was made as to the exact terms upon which lands in the colony should be granted; each charter gave to the recipients power to grant upon such terms as might seem advisable to them.^ Nor did any of the royal arrets down to the beginning of the eighteenth century make any reference, direct or indirect, to the existence of any uniform rate of cens. Consequently the matter was regu- lated by the "common law" of the colony, which was the Custom of Paris : the colonial seigniors, like those at home, stipulated with their censitaires for such rate of cens as they were able to obtain, and, when no title-deed was drawn up, collected such rate as was customary in the neighborhood. In the early days of the colony down to the close of the seventeenth century, settlers came in so slowly that there were not many applications each year for en censive grants; hence the seigniors, in their desire to obtain settlers on their lands, were willing to subgrant at a very low rate of cens. Toward the end of seventeenth century, however, when the despatch of large numbers of colonists under state auspices caused the appUcations for land grants to become more numer- ous, the seigniors began to demand more rent ; so that incoming settlers found themselves unable to get locations except on promising to pay a rate of cens very much higher than that paid by habitants already on the seigniorial lands. In a word, the seigniors, very much to the detriment of what the authorities con- ceived to be the best interest of the colony, — namely, facihty of settlement upon the land, — began to abuse their right to stipu- late at their own discretion for any amount of cens. 1 See below, p. 89. 2 cf, above, ch. ii. THE SEIGNIOR AND HIS DEPENDENTS. 89 It was for this reason that the governor and intendant from time to time asked the king to curb the power of the seigniors in this particular. In 1707, Raudot addressed Pontchartrain very vigorously on the point, asking that an arret be issued limiting the cens to the uniform rate of "one sou for each arpent in front or twenty sous for the whole grant, at the option of the grantee ... in order to prevent the seigniors from imposing vexatious conditions." ^ To this despatch the minister replied, expressing the opinion that "it would be very desirable to reduce the seign- iorial dues throughout the whole of Canada to the same level," but asking for further information as to the rates imposed in various parts of the colony.^ To this request the intendant re- sponded in the course of the same year, enclosing a memorandum showing the amount of dues exacted in different seigniories, and commenting upon the marked increase in the rates during the last few decades over those stipulated for "in innocent times when the seigniors did not so much seek their own advantage."^ The home government, however, took no decisive action till 171 1. In the first Arret of Marly, promulgated in that year, ex- plicit provision was made to the effect that no seignior should henceforth exact from an applicant for lands a higher rate of dues than that which was customary in the vicinity. If the seignior should demand more, the arret gave the governor and intendant power to step in and make the desired grant at the customary rate, the dues thereafter to become payable to the crown and not to the avaricious seignior.* At first glance, it might be thought that this provision of the Arret of Marly would have effected what Raudot desired, namely, a uniform rate of cens throughout the colony; in fact, some writers of prominence and authority have expressed the opinion that a uni- 1 Raudot to Pontchartrain, November 10, 1707, Correspondance Getter ale, xxvi. 7-34. * Pontchartrain to Raudot, June 13, 1708, Correspondence between the French Government and the Governors and Intendants of Canada relative to the Seigniorial Tenure (1853), 9 ff. 8 Raudot to Pontchartrain, October 18, 1708, Correspondance Generale,iix\\\\. 175- 187. The memorandum referred to as accompanying this despatch has, unfortu- nately, not been preserved. * Edits et Ordonnances, i. 325. 90 THE SEIGNIOR AND HIS DEPENDENTS. form rate was actually established by this royal decree. Cugnet speaks of the cens as having been definitely fixed at "one sol for each arpent in front by forty in depth," ^ Solicitor-Gen- eral WiUiams, in his report on the nature and legal bases of seigniorial rights, made in 1790, declared that the rate was fixed at "one half-penny for every acre in front by forty in depth, "^ Judge Hay decided that it was fixed at "one penny for every superficial arpent";^ and two of the judges of the Special Court established in 1854 to determine the rights of seigniors to com- pensation for the loss of their privileges, expressed the opinion that the arret of 171 1 intended to make the rate of cens uniform throughout the colony.^ Color appears to be lent to this view, furthermore, by the wording of an intendant's ordinance issued in 1737. In that year Hocquart received from certain, habitants of the seigniory of Gaudarville a petition setting forth " that the Dame Peuvret, seignioress of that place, had made some five grants en censive without having fixed the amount of dues for which the habitants should be held liable," and requesting that she be ordered to grant them titles in good form, " and this on the footing of the deeds of concession of other lands in the same seigniory." The intendant having, as he declares, " inspected the deeds of two other habitants of the same seigniory," ordered that " the peti- tioners be granted deeds of concession by Dame Peuvret . . . subject to the rate of cens ordered by His Majesty, namely, one sol of cejis for each arpent in front." ^ This ordinance would at first sight seem to indicate that, in the opinion of the intendant, the arret of 171 1 had established a definite rate of ce?is ; but a closer examination will disclose that it does not necessarily imply this. It should be noted that the intendant first inspected the deeds of other habitants in the ^ Cugnet, Traite de la Loi des Fiefs, 44. ^ This report may be found in full in Titles and Doctiments, i. 27 ff. ^ Unpublished manuscript entitled " Government and Justice in Canada," now in the library of the Provincial Parliament at Quebec. * These were Judges Smith and Mondelet. See Proceedings of the Special Seign- iorial Court (1856), 61 ; also Judge Smith's Observations, 50, and Judge Monde- let's Observations, 5. ^ Edits et Ordonnances, ii, 545. THE SElGJStlOR AND HIS DEPENDENTS. 91 seigniory. Why should he have done this if a uniform rate had been definitely fixed for all grants ? Was it not that Hocquart wished to find out what was the customary rate of cejis in the seigniory of Gaudarville, and upon this basis to determine the rate which the dame seignioress, having failed to make stipulation in the original grants, might now exact ? In other words, may not the words of the intendant's ordinance be fairly construed to read, " to the rate fixed by the king, [which in this case appears from deeds of other habitants of the seigniory to be] one sol per arpent " ? Support is given to this view by the fact that the words " to the rate ordered by His Majesty " do not appear in any other of the numerous ordinances which commanded seigniors to grant title-deeds to habitants at the customary rate, and that no other official document refers to the rate as having been uniformly fixed at one sol per arpent. As a matter of fact, the purpose of the Arret of Marly was to keep the seigniors from stipulating for an unfair rate to the detriment of colonial development, an end which did not, however, necessitate the reduction of all dues to the same level. The royal intention, as seen from the wording of certain ratifications of grants made subsequently to 171 1, appears to have been to allow the rate to be fixed by the seign- ior in accordance with the quality and situation of the grant,^ but at the same time to prevent any abuse of this discretionary power. It seems scarcely possible that the king should have expected or desired seigniors to subgrant all lands, good, bad, and indif- ferent, at the same rate. If it was the intention of the crown to establish a uniform Tate of cens for the whole colony by the arret of 171 1, it may fairly be assumed that in those grants which were made by the crown directly, without the intervention of a seignior, a uniform rate would have been prescribed ; but an examination of the title-deeds of the en censive grdiwts thus made after 171 1 shows nothing of the kind. Take, for example, the title-deeds of three en censive grants made by the crown during the years 1 750-1 75 3, all three of them grants of land near the present ^ " En egard a la qualite et situation des heritages au temps des concessions " iJBrevets de Ratification, 9), 92 THE SEIGNIOR AND HIS DEPENDENTS. site of Detroit.^ If we might fairly expect to find uniformity anywhere, it would be in the case of grants made by the same authorities at about the same time and in the same locality ; but as a matter of fact the rate of cens provided for in these three deeds varied considerably. It might furthermore be expected that, if the crown intended that the seigniors should exact a fixed rate of cens, it would have so stipulated in the title-deeds of seigniories granted after 171 1 ; but out of the scores of such deeds executed by the governors and intendants from 171 1 to 1759 there seem to be only four in which the rate of cens which might be exacted by the grantees is definitely fixed, and in each of these four the rate allowed is a different one.^ It may, then, be fairly concluded that the amount of the ceiis was never regulated by any uniform rule for the whole colony. When the colonial currency became depreciated, disputes arose between seigniors and habitants as to whether the ceiis should be paid in colonial money {monnaies de cartes^ or in French ( monnaie de France ). The seigniors, naturally enough, wished to be paid in the latter, the habitants to pay in the former; but an end was promptly put to their disputes by the issue, in 171 7, of a royal edict providing that, unless it had been otherwise stipulated in their title-deeds, the habitants should be allowed to pay their dues in French currency with a deduction of one-fourth.^ This peculiar arrangement is ex- plained by the fact that at this time colonial currency was circulating at about three-fourths of its face value.* The edict of 1 71 7 is not to be understood as giving the habitant the option of paying the full rate in colonial currency or three-fourths of the rate in French currency. That, to be 1 One to Pierre Reaume, April i, 1750, and two to Douville Dequindre, June 12, 1752, and May 16, 1753. See Titres des Seigneuries, 249, 251-252. 2 For copies of these four deeds, see Ibid. 59, 64, 84, 131. In all the others the obligation, when it appears at all, is that grants shall be made " at the customary rate." 3 Edits et Ordonnances, i. 372, § ix ; cf. also Ibid. 393, 525. On the enforcement of the stipulations contained in the deeds, see Dupuy's elaborate ordinance in the case of the habitants of Bellechasse, Ibid. 486-494. ^The best outline of the history of currency and exchange during this period is Adam Shortt's Canadian Currency and Exchange under French Rule, in Journal of the Canadian Bankers' Association, v. 271, 385, vi. I, 147, 233 (1898-1899). THE SEIGNIOR AND HIS DEPENDENTS. 93 sure, is what the arrangement practically amounted to at the time the edict was issued ; but, as the colonial currency further depreciated, the habitants, when they tendered this money, were required to pay considerably more than the sum specified in their deeds. This was particularly true of the closing years of the French epoch, when the colony was flooded with inconvertible paper money.-^ The other part of this payment, the rentes, was payable sometimes in kind, sometimes in both money and kind, and sometimes entirely in money. In many cases the amount was fixed in terms of both produce and money, — as, for example, for each superficial arpent " twenty sols or one fat capon," or " twenty sols or one demi-minot of grain. " ^ The amount of the rcjites, like that of the cens, was fixed by the seignior at the time the grant was made, otherwise the rate cus- tomary in the neighborhood obtained; and, as in case of the cens, the amount stipulated varied in different seigniories, and even in the same seigniory at different periods. The rentes was no nominal due, but a real burden on the habitant and a tangible source of profit to the seignior. When its amount was fixed in terms of poultry or grain alone, the burden varied with variations in the value of these. The value of the " fat capon," for instance, rose and fell from year to year. In a deed granting lands within the seigniory of Gaudarville in 1708, it is given as twenty sols,^ while in the title of a grant within the seigniory of Isles Bouchard in 1709 it is given as thirty sols.* The fluctuations in the price of wheat were also marked, extending, during the last thirty years of French rule, all the way from two to ten livres per minot, as may be seen from the appended table.^ ^ Stevenson, The Card Money of Canada, in Quebec Literary and Historical So- ciety, Transactions, 1873-1875, pp. 84-112. See also hzTean, A/onnaie de Cartes ail Canada, in Revue de Montreal, ii. 433-438 ; and Dionne, La Monnaie Cana- dienne sous le Hegime Fran^ais^ in Revtie Canadienne, xxix. 30-32, 72-83. ^ A minot was the equivalent of 39 litres, or 1.072 English bushels. ' Cited in Lafontaine, Observations, 178. * Ibid. 190. ^ This table is compiled by the Rev. M. Comte, and printed in Titles and Docu- ments, i. 177, 94 THE SEIGNIOR AND HIS DEPENDENTS. Year LlVRES Sols Year LiVRES Sols 1729 3 1745 3 1730 3 1746 2 10 1731 2 10 1747 3 1732 3 1748 3 1733 2 1749 2 10 1734 2 1750 3 1735 2 1751 5 1736 3 10 1752 4 1737 4 1753 3 10 1738 3 1754 3 10 1739 2 1755 3 10 1740 2 1756 5 1 741 2 10 1757 10 1742 3 10 1758^ 1759 1- 1743 4 5 Figures not obtainable. 1744 4 2I 1760 J In drawing up the deeds, many of the seigniors took care to stipulate strictly as to the quality of produce which might be tendered in payment of the rentes; thus, one will find the pay- ments fixed at "one good fat capon of the brood of the month of May for each arpent," or at " one minot of good sound mer- chantable wheat." When the rate of rentes was fixed both in produce and in money, the seignior usually stipulated that the option of payment in one or the other form should rest with him and not with the grantee ; if he omitted to do so, the habit- ants appear to have made it a point to tender their rentes in grain or fowl when prices were low and in money when prices were high. The authorities, however, seem to have felt that even in the absence of explicit stipulation the choice as to the form of payment rested with the seignior, a fact of which Raudot com- plained, in 1707, on the ground that it made the burden upon the habitants unduly heavy. "These dues," he wrote, " are paid to the seignior either in kind or in cash at the seignior's choice. The capons are valued at thirty sols, whereas they are not really worth more than ten. The seigniors often compel the habitants to give them money at great inconvenience, for the latter fre- quently have no money to give. Thirty sols may seem a mere THE SEIGNIOR AND HIS DEPENDENTS. 95 trifle, but it is very considerable in a colony where money is so scarce. It seems to me that when there is a choice of payment it should be in favor of the party owing, cash being a sort of penalty against him when he is unable to pay in kind."^ When, however, the habitants appealed to the authorities at Quebec to be allowed to choose the form of payment, the latter invariably upheld the seignior's contention, and finally, in 1730, decreed by ordinance the enforcement of the general principle that the choice should always rest with the seignior unless the title-deed of the habitant expressly stated the contrary.^ Payment of the cens et rentes took place once a year, and usually late in the fall. " Every autumn," writes Casgrain, "as Michaelmas (November 11) approached, the seignior warned his habitants at the church door after mass that their cens et rentes was payable. As soon as the winter roads were good the manor-house became the centre of as lively activity as is the presbyth-e to-day when the habitants assemble to pay their tithes. Some arrived in carioles, some in sleighs, each bringing with him a capon or two, oats by the bushel, or other products of his lands." ^ The occasion was a gala day for the seigniory. There appears to have been "a prodigious consumption of tobacco and a corresponding retail of neighborhood gossip, joined to the outcries of the captive fowls, bundled together with legs securely tied but with throats at full liberty."* When, as occasionally happened, the seignior did not reside on his seigniory, he was obliged to keep an agent on the ground to receive the payments at the time and place appointed in the deeds of the habitants. An intendant's ordinance, issued in 1714, makes it clear that the habitants could not be called upon to make payments of the cetis et rentes except on the exact day and at the particular place specified in their title-deeds.^ The second financial obligation under which lands en censive were held was that of the payment of a mutation fine, known as ^ Raudot to Pontchartrain, November 10, 1707, Correspondance Generale,-xxy\. 2 Edits et Ordonnances, ii. 512. ^ H. R. Casgrain, line Paroisse Canadienne au xyW^ Steele, 173. * Parkman, T/ie Old Regime in Canada, ii. 47. ^ Edits et Ordonnances, ii. 440. 96 THE SEIGNIOR AND HIS DEPENDENTS. the lods et ventes, which became due and payable upon the occasion of each mutation in ownership of the lands, whether by sale, gift, or inheritance other than in direct descent.^ In France the amount ^of the lods et ventes varied somewhat in different provinces, amounting sometimes to from one-fourth to one-sixth of the mutation price.^ In Canada, on the other hand, the amount uniformly exacted was that fixed by the Cus- tom of Paris, namely, one-twelfth, of which the seignior usually remitted one-third, although he was under no legal obligation to do 80.^ A judgment of the Superior Council in 1677, for in- stance, ordered certain habitants of the seigniory of Gaudarville to pay the full twelfth without rebate, despite the fact that, as the habitants alleged, " a remission of one-third was made by all the seigniors of the country." * The lods et ventes was payable in cash at the seigniorial manor-house within forty days of the date of mutation. In default of payment, the seignior might obtain from the intendant a judgment giving him the right to seize the grain or other per- sonal property of the dehnquent habitant ; or, if there were not sufficient property to distrain, he might obtain a judgment re- uniting the land to the seigniorial domain.^ At the time of making payment, the new owner of the en censive lands exhibited his title and rendered his fealty and homage to the seignior. Ordinarily the lods et ventes could not be collected on the ex- change of inheritances between direct heirs any more than on direct inheritances ; but by an edict issued in 1673 the king made provision that this exemption should not apply to those en censive lands which had been granted directly by the crown ; * and some time later the Seminary of St. Sulpice, which possessed the seigniory of the island of Montreal, was given the same 1 Couturne de Paris, article Ixxiii. 2 Taine, VAncien Pigime, 536. ^ Report of the Commissioners, 1843, Titles and Documents, i. 51. Solicitor- General Williams, in his report of 1 790, states that " a fourth of the fine was usually remitted by the seignior" (^Ibid. 30) ; but this is probably an error. * Edits et Ordonnances, ii. 75-76. 6 Ibid. 64, 341. ^ This edict does not seem to have been printed. It is cited in the report of Solicitor-General Williams, mentioned above. THE SEIGNIOR AND HIS DEPENDENTS. 97 privilege as the crown, by way of compensation for relinquish- ing its judicial privileges within the seigniory. ^ In the earlier period of the French regime the seigniorial profits accruing from the payment of the lods et ventes were not large, for lands en censive changed hands, except by inherit- ance in direct succession, very infrequently ; but in the later years of French dominion the increase of colonial population made transfers of land, especially in the vicinity of the settle- ments, much more frequent, and the seigniorial profits became, in consequence, very considerable. Still, the payment does not seem seriously to have hampered the normal course of land transfers until after the conquest, when it became one of the generally accepted evil incidents of the seigniorial system, by operating, especially in the case of valuable lands, as an unwholesome check on the free alienation of real property. As the seigniorial system developed, it became a common practice to attempt to deprive the seignior of his proper lods et ventes by concealing from him the actual transfer price and tendering him one-twelfth of an alleged mutation price, which was, in each case, fixed much below the actual. According to the Custom of Paris, the dominant seignior had the right, in case of mutation in the ownership of seigniories, to protect him- self against being defrauded out of his proper quint by exercis- ing his dj'oit de retrait feodal {jns retractuni)^ which gave him the privilege of buying a sub-seigniory at the alleged price any time within forty days from his receipt of notice of sale. The custom, however, provided no means whereby the seignior might protect himself from being defrauded of his lods et ventes. By some of the other French customs, seigniors were allowed to exercise the droit de retrait over transfers of land within thfeir seigniories ; and it would seem that in Canada they began at an early date to stipulate, in the deeds which they granted to their habitants, for the recognition of this right. Raudot, in his despatch of November 10, 1707, complains that the colonial seigniors " have even introduced in nearly all their deeds a retrait rotnrier [or right to preempt lands en rotnre'], of which no mention is made in the Custom of Paris, — although that is ^ Edits et Ordonnances, i. 342-346. * Coutume de Paris, article xx. 98 THE SEIGNIOR AND HIS DEPENDENTS. the custom observed in this country, — by stipulating that the seignior, at each sale, may withdraw the lands which he grants at the same price as that at which they would be sold ; and they have thus abused the right of feudal preemption {retrait feodal) spoken of in that custom, and which is sometimes in- serted in grants en fief . . . but is not established as between seignior and habitant. This claim, My Lord," he concludes, " shackles very injuriously all sales of land." Raudot finished by recommending that a royal decree be issued forbidding the seigniors to stipulate for this right.^ In reply to this recommendation, Pontchartrain agreed that, since the Custom of Paris had been adopted as the general rule of seigniorial rights in the colony, the exercise of any droit de retrait roturier could not be permitted ; and he said further that even the droit de retrait feodal should not be insisted upon by the crown unless special stipulation therefor had been made in the title-deeds of the seigniories.^ This reply only complicated matters : for, according to Pontchartrain, the seigniors were not to exercise the right with reference to the lands of their habit- ants, even when they had stipulated for it in the title-deeds granted by them, because it was not recognized by the Cus- tom of Paris ; while, on the other hand, the representatives of the crown were not to exercise the right in reference to the seigniories unless they had expressly stipulated for it in the deeds, although this right was permitted by the custom. The intendant did not, of course, wish the policy of suppres- sion to be carried so far ; he wanted to have the seigniors curbed in their rights without being freed from one of the checks which the authorities had upon them. He therefore communicated again with the minister on the subject, pointing out that the right of retrait fe'odal was a very serviceable one in several ways. Even if it did hinder the transfer of seign- iorial lands, it was, he claimed, not an evil, since it was well that the " ownership of seigniories should be perpetuated in the ^ Raudot to Pontchartrain, November lO, 1707, Correspondance Generate, xx^n. 7ff- - Pontchartrain to Raudot, June 13, 1 708, Correspondence between the French Gov- ernment and the Governors and Intendants of Canada, etc., 9 ff. THE SEIGATIOR AND HIS DEPENDENTS. 99 same families." ^ With this correspondence the matter seems to have dropped, for no edict on the subject followed. In the absence of express prohibition, the seigniors made good their claim to exercise the right; and in 17 14 the intendant Begon decided in one of his judgments that they were justified in so doing. ^ One writer on the subject of land tenure in Lower Canada has remarked that the existence of the droit de retrait was nec- essary in order to keep the seignior from being defrauded of his proper amount of ce?is et rentes? There seems to be no ground for this view, for the cens et re7ites was reckoned upon area and was a definite annual due ; it was only the lods et ventes which was reckoned upon the mutation price of the land and hence was liable to variation. In France, where the amount of lods et vetites was high, there was naturally a strong temptation on the part of censitaires to report a fictitious mutation price to the seignior ; but in Canada, where it amounted to only one- twelfth of the value, the temptation was much less dangerous. Still, the possibility of fraud existed, and the Canadian seignior clung to the droit de retrait as a protection. It may be worth while to note that something corresponding to this right may be found in almost every land-tenure system in which the peas- ant holder pays a mutation fine to him from whom the land is held, and where this fine is paid upon the value and not upon the extent of the lands.* It seems, therefore, to have been a natural supplement to the payment, and to have come into being as a preventive to fraud. Toward the close of the French era, complaints were made that some of the seigniors were asserting their right to purchase not only the lands, but the grain, cattle, and even the personal 1 Raudot to Pontchartrain, October 18, 1708, Correspondance Generate, xxviii. 175-187. 2 Edits et Ordonnances, ii. 438. ^ Robert Abraham, Some Remarks on the French Tenure of Franc Aleu Roturier, and its relation to the Feudal and other forms of Tenure, 25. * M. Emile de Laveleye, in his De la Propriete et de ses Formes Primitives, 98, notes the existence, among the Arabs in Algeria, of what was substantially the droit de retrait under the name oi cheffa, or chefaa. See also Leroy-Beaulieu, De la Colo- nisation chez les Peuples Modernes (5th ed.), ii, 24-25. 100 THE SEIGNIOR AND HIS DEPENDENTS. chattels, of their habitants, whenever the latter had these for sale. In some parts of France this right seems to have been exercisable by the seigniors ; ^ but the Custom of Paris gave no warrant for it, and in Canada it was never sanctioned by the authorities. Many of the Canadian habitants, however, drawn as they were from the provinces of Normandy, Perche, and Poitou, knew very little about the provisions of the Custom of Paris, and by their absolute ignorance were often led to submit to seigniorial exactions which were without any legal basis. It not unfrequently happened, indeed, that the habitants in various outlying seignories would submit quietly to the enforcement of unfounded seigniorial claims for many years before making the discovery that they were merely being made to pay the price of their ignorance. From time to time, it is true, the authorities deplored this apparent disposition of the seigniors to take unfair advantage of their unsophisticated dependents ; but they could deal only with cases which came to their notice. The cens et rentes and the lods et vejites were the only direct payments made by the habitants to their seigniors ; but there were several other obligations to which the former were subject, some of which came in the course of time to be regarded as little more than direct payments or seigniorial dues. Chief among these were the banalities, or banal rights, of the seigniors, a consideration of the nature and extent of which forms the topic of the next chapter. ^ See Glasson, Precis Elementaire de VHistoire du Droit Fran^ais, 476. CHAPTER VI. THE BANALITIES. Among the important incidents of the seigniorial system in France were the various rights and privileges known as the droits de banal, banalites, or banal rights. These were the rights of the seignior to control exclusively various public or semi-public services within his seigniory, and to compel his dependents to make use of these at a stipulated toll or charge. In various parts of France the seigniorial banalities included the right to build and operate grist-mills, cork-factories, hemp- factories, saw-mills, bake-ovens, wine-presses, cider-mills, slaugh- ter-houses, and so on ; but the nature and extent of the rights varied very greatly in different provinces. Out of the long list of privileges only two were ever claimed in Canada, the grist-mill and bake-oven banalities; and of these only the former was ever enforced to any extent. Whether, in their origin, these banal rights resulted from un- lawful usurpations on the part of the seigniors, or whether they arose naturally from the mutual wants and interests of the parties concerned, has never been very satisfactorily determined. On this point students of the development of seigniorial insti- tutions disagree. 1 According to Henrion de Pansey, however, there were in France but eleven coiitmnes which expressly recognized the banal rights as accruing to a seignior without special contract made with his dependents.^ The other customs either are entirely silent upon the whole subject of banalities, or speak of them only as rights which a seignior might exercise as the result of stipulations made in the original grant of lands within his jurisdiction. Whatever their origin, the exaction of 1 See M. Rioufol, UOrigine et VHistoirc des Banalites (1893). 2 Henrion de Pansey, Dissertations Feodaks, i. 175. LIBRARY UNIVER?^TTY OF CATJFORNIA' SANTA BARBARA I02 THE BANALITIES. the banal rights was, at the end of the seventeenth century, more or less general throughout a considerable part of France ; in fact, one writer has declared them to have been " the most terrible and the most general abuse " of the whole seigniorial system.^ The Custom of Paris recognized the right of the seignior to enforce mill and oven banalities only when he had stipulated to this effect in the title-deeds granted to his dependents, and then only under certain limitations. The articles in the custom that relate to this matter run as follows : (i) "No seignior can compel his dependents to go to the mill or oven which he claims to be banal ... if he have not such right by title . . . and no title is to be reputed valid if it has not been executed more than twenty-five years ; " (2) "A windmill {tnoulin a vent) cannot be a banal mill, nor [when a seignior possesses such only] can neighboring millers be hindered from soliciting grist within the seigniory." 2 In New France, therefore, after the introduction of the Cus- tom of Paris in 1664,^ the possession by the seignior of the rights of mill and oven banality was not a necessary incident of the ownership of a seigniory, but accrued to him only when he had made the proper stipulations with his habitants. In the title-deeds which he granted his dependents, however, it was the almost invariable practice of the Canadian seignior to insert a clause providing that the grantee should have his grain ground only at the seigniorial mill ; and if no mill had been erected at the time the grant was made, the clause was made to provide that this obligation should go into force whenever a seigniorial mill should be established.* As will be "seen, however, the provisions of the Custom of Paris requiring that a title, to be ^ Championniere, De la Propriete des Eaux Courantes (1846), 552. Tocque- ville, in his Old Regime atid the Revolution, 336, mentions that there were no banal rights in the provinces of Artois, Flanders, and Hainault. 2 Articles Ixxi-lxxii. These articles were not in the Custom of Paris as drawn up in 1 5 10, but were inserted at the time of its revision in 1580. 3 See above, p. 31. * " Que le dit . . . seront tenus de porter leurs grains moudre au moulin banal, lorsqu'il y en aura d'etabli, a peine de confiscation des grains et d'amende arbitraire " {Titres des Seigneuries, 242). THE BANALITIES. IO3 accounted valid, must have been executed more than twenty-five years, and providing that no windmill could be deemed a banal mill, were, like some other provisions of the custom, set aside by the king and by the colonial authorities as being unsuited to conditions existing in New France.^ The first mention, so far as official writings are concerned, of the existence of banal mills in the colony is to be found in an ordinance of Governor de Lauzon, issued in 1652. This ordinance has not been preserved ; but it is referred to in a decree of the Sovereign Council, which, some fifteen years later (March 28, 1667), reiterated the purport of Lauzon's decree and ordered its enforcement. This later decree,^ after declar- ing that sundry complaints had been made regarding abuses of the banal right by millers, — abuses which were apparently in the form of excessive exactions of toll and the rendering of inferior service, — went on to direct that the provisions made by Lauzon for the protection of the habitants should have their full force and effect. What these provisions were cannot, in the absence of any copy of the earlier decree, be definitely stated; but from some passages in the decree of 1667 it would appear that they had given the habitants the right to claim damages from those seigniors at whose mills their grain was improperly ground or whose millers took excessive toll. One clause of the decree, in fact, provided that seigniors who were mulcted in damages might deduct the amount of the damages from the wages of their millers. Other regulations on the subject of the banal right followed quickly, one of them, issued in June, 1667, fixing definitely the amount of toll which might be taken at the seigniorial mills for the grinding of grain. It appears that a petition, signed by a number of seigniors, had been presented to the authorities, in which attention was called to the fact " that the mills of this colony cost double or treble those of France, as well for their construction, maintenance, and repair as for the wages and board of the millers." In consequence of this circumstance, the petitioners declared that they might 1 Below, pp. 108-109. ' Edits et Ordonnances, ii, 36. 104 ^-^^ BANALITIES. very justly ask to have the rate of toll proportioned to the increased expense, — to have it fixed, perhaps, at twice or thrice the rate of toll allowed by the Custom of Paris. They did not, however, ask that this be done ; on the contrary, they declared themselves willing to maintain the mills in operation at the existing rate of toll, but requested that an ordinance be issued sanctioning this customary rate throughout the colony. In compliance with the prayer of this petition, the intendant or- dered that the rate of toll at the seigniorial mills should be one-fourteenth of the grain ground.^ The same ordinance contained various other regulations. It empowered officials, for instance, " to go from time to time and from place to place to gauge the measures used in the banal mills and to find out, in general, what is going on"; it provided that, when seigniors had leased their banal mills to private parties, the habitants, " in the event of malversation by the millers," should have recourse against the lessee and not against the seignior ; and finally, in order to guard alike against sharp practices on the part of the millers and unreasonable suspicions on the part of the habitants, it required that "all owners of grain taken to seigniorial mills to be ground shall be held to have their grain weighed in their own presence, in default whereof no subsequent complaints against the mil- ler will be heard." This practice of administrative interference in the management of the banal mills was not peculiar to the colony ; it had long been common in France, where it was justified on grounds of public policy .^ Despite the assertion of the seigniors to the effect that they would be satisfied with a toll of one-fourteenth, there seems to have been no dearth of attempts to exact a higher rate from the habitants. In the lengthy code of police regulations issued by ^ Edits et Ordonnances, ii. 39. 2 On this point Henrion de Pansey remarks : " But above the authority of the seigniors there is an authority of a higher order to which belongs all that can interest public policy, . . . and which has the right to restrict the liberty of each individual for the good of the greatest number. The mills intended to give the first prepara- tion to the chief article of food must necessarily be subject to the inspection of the chief authority, which has, then, the right not alone to control them but to regulate their number" {^Dissertations Feodales,\. 215, cited in Lafontaine, Observations, 2^cj). THE BANALITIES. 105 the Superior Council at Quebec in 1676, it was therefore deemed necessary to provide penalties against all millers who caused " more than one-fourteenth to be paid for the toll of grist," and to prohibit millers from competing with one another (yde chas- ser les tins snr les azitres), or from soUciting grist in any way from the habitants of seigniories other than their own.^ Owing to the comparative poverty of many of the seigniors, the number of banal mills in the colony increased very slowly during the last quarter of the seventeenth century.^ The establishment of a grist-mill involved considerable expense ; for, with the exception of the millstones, which were quar- ried in the colony, all the machinery and utensils had to be imported from France, and the cost of transportation was very high. Moreover, the amount of toll received was never large enough to make the operation of the mill profitable, unless the seigniory in which it was situated happened to be a popu- lous one ; in most of the seigniories the toll collected did not even sufifice to pay the wages of the miller hired by the seignior to do the grinding. Accordingly, in many seigniories no mills were built, the seigniors allowing their habitants to take their grain wherever they wished. In course of time this condition of affairs was brought to the attention of the king,^ with the request that some steps be taken to compel seigniors to provide mills for the use of their dependents even when such mills would be sources of loss rather than of profit; and in prompt response a royal decree was issued along the desired lines. After setting forth the fact that " most of the seigniors who are proprietors of fiefs in New France persistently neglect to erect the mills necessary for the subsistence of the inhabitants of the said country," the decree goes on to declare the necessity of providing some remedy for "an evil so prejudicial to colonial welfare," and to this end it ordains that "all seigniors who are proprietors of fiefs within ^ " Reglemens Generaux du Conseil Superieur de Quebec, pour la Police," May II, 1676, Edits et Ordonnances, ii. 6^-73, § xxxv. 2 The census of 1698 gave the total number of mills in the colony as 43. This included saw-mills as well as grist-mills. See Censuses of Canada, 1665-1871, p. 41. ^ MeuUes to Minister, November 12, 1684, Correspondance Generals, vi. 145 ff. I06 THE BAN'ALITIES, the territory of New France shall be bound to erect their banal mills therein within the space of one year after the publication of this decree" ; if they fail to do this, "His Majesty permits all individuals, of whatever condition and rank they may be, to erect such mills, granting them in that respect the full right of mill banality, and prohibiting any person from disturbing them in the right thereof." ^ The tenor of this decree is perfectly clear : if the seignior did not build a mill, any private individual might build one and become possessed of the banal right for all time. On October 21, 1686, this decree was duly recorded in the registers of the Superior Council at Quebec, and ordered to be promulgated at the accustomed times and places.^ Strange to say, however, this required publication was not made for some twenty years ; ^ and, outside the immediate circle of colonial offi- cials, no one seems to have known that such a decree ever ema- nated from the king. During the period 1686-1707 matters continued just as they were : the seigniors built their mills or not, as they found it profitable or unprofitable to do so. In the latter case they took good care to insert in the deeds of con- cessions made to dependents the usual obligation on the part of the latter to carry their grain to the seigniorial mill " whenever such shall be erected within the seigniory." The reason for the long delay in the publication of the decree of 1686 might easily have been surmised ; but in the despatch transmitted to the French minister by Raudot in 1707 it appears very frankly stated. Raudot writes : " I should think, My Lord, that it would be necessary . . . that the exclusive right of grinding should be preserved to the seign- iors on condition of their building mills in their seigniories within a year, failing in which their right should be forfeited, and the habitants would not be obHged, when one was built, to have their grain ground there ; otherwise. My Lord, they will never be induced to build the mills, from the deprivation of which the habitants suffer greatly, being unable, for want of ^ Edits et Ordonnances, i. 255-256. "^ J^gements et Deliberations du Conseil Souverain de la Nouvelle- France, iii. 87. ^ See the note appended to the copy of the arret in Edits et Ordonnances, i. 256. THE BANALITIES. 107 means, to avail themselves of the favor which His Majesty granted them by permitting them to erect mills in cases where the seigniors omitted to do so. . . . This privilege," he con- tinues, " was granted to them in the year 1686 by an arret which was registered by the Superior Council of this country ; but, as it was not sent to the subordinate jurisdictions to be promul- gated, the inhabitants have not hitherto profited by this favor, and it is only since my arrival here that the decree has been pubHshed, the fact of its non-promulgation having but just come to my knowledge in the course of a lawsuit, recently determined, in which the arret was produced, but could not be used to advantage by one of the parties because it had never been promulgated. . . . The fault," he adds, " can only be attributed to the Sieur d'Auteuil, whose duty it is, as attorney- general, to transmit such decrees to the subordinate courts ; but it was his interest as a seignior, as it was that of some of the other councillors who are also seigniors, not to make known this decree." ^ In the foregoing despatch we find what was, in all probability, the reason why many of the royal decrees, sent out to the colony and duly enregistered, were never put in force. The members of the Superior Council were, for the most part, owners of seign- iories, and hence sought to negative, in every possible way, any attempt to curtail seigniorial powers. Raudot, however, was a fearless and conscientious ofBcial ; and as soon as the real state of affairs came to his notice, he issued an ordinance commanding the publication of the arret at the subordinate jurisdictions with- out delay.2 From this time on, the seignior was under legal obligation to erect his banal mill within the space of one year from the date of the creation of his seigniory ; if he failed to do so, the right might be claimed by any private individual who chose to provide milHng facilities for the seigniory. Within a few months of the promulgation of the long-delayed decree, the intendant found himself called upon to enforce its provisions. During the month of June, 1707, he received a * Raudot to Pontchartrain, November 10, 1 707, Correspondance Generale, xxvL 7-34. 2 December 20, 1706, Edits et Ordonnances, ii. 145-150. I08 THE BANALITIES. petition from " all the habitants of the seigniory of Mille Isles," praying that the Sieur Dupre, seignior of that fief, "be ordered to build a mill for them, or, if he will not, to consent that they build one for themselves, and that they be, in conse- quence, discharged from banal obligations, and be allowed to utilize this right to their own profit." The seignior of Mille Isles, being duly summoned before the intendant at Quebec, admitted his inability to proceed with the erection of a mill ; whereupon the intendant issued an ordinance permitting "the said habitants to build a mill in such part of the said seigniory as they deem fit, and by their so doing to be discharged forever from the right of banality." ^ In the same month a similar enforcement of the provisions of the royal decree was obtained by the habitants of the seign- iory of Varennes,^ and during the next few years there were several examples of like action. These enforcements seem to have had a wholesome effect upon many seigniors, for a good many mills were erected during the years 1707-1720.^ After Raudot's tenure of the intendancy, however, the enforcement of the decree seems to have been tacitly relaxed ; for it is certain that many seigniors neither built their mills nor were deprived of their rights.* When the habitants could conveniently use the mill of an adjoining seigniory, they resorted to it with the consent of their seignior, who in such cases merely held the banal right in abeyance to be exercised later, when, with the in- creasing population of his seigniory, the erection of a mill would be justified by the expectations of profit. It will be remembered that, by the Custom of Paris, no seignior was entitled to exercise the banal right unless he had, in the title-deeds granted to his habitants, expressly stipulated for the exercise of this right. In Canada the seignior, when ^ Edits et Ordonnances, ii. 427. The name Dupre is not a misprint for Dugue, as Lafontaine (^Observations, 317) supposes. Dupre, a merchant of Montreal, is mentioned by Catalogne as owner of the fief in 1712. 2 Edits et Oi-donnances, iii. 132. 3 The census of 1720 gives the total number of grist-mills as 90. See Censuses of Canada, 1665-1871, p. 53. * In some cases seigniors were, by intendant's ordinance, given an extension of time. Cf. Edits et Ordonnances, ii. 364. THE BAN-ALITIES. IO9 he granted titles, seems to have taken good care that this stipulation was inserted. Whether, in the event of his failing so to do, the authorities would have supported him in the exercise of the right is not at all certain ; the question does not seem to have arisen. In a great many cases, however, as has been pointed out, the habitants took lands on the mere word of the seignior, or on the strength of location tickets, which simply stated the fact of the subgrant without naming any of the conditions on which the land was to be held ; and in more than one such case the question arose whether the seign- ior could, in view of the provision in the custom, compel such habitants to bring their grain to the seigniorial mill. On these occasions the intendant ordered the habitants to exchange their location tickets for regular titles, in which the seignior was allowed to insert the banal obligation in its regular form. The wording of several of the ordinances, moreover, seems to lend color to the idea that the colonial authorities regarded the banal right as accruing to the seigniors whenever they built their mills, whether this right had been stipulated for or not ; ^ but the invariable insertion of the stipulation seems to have relieved the officials from the necessity of passing definitely on the point and of determining whether the provision of the custom in this matter should be expressly set aside in the colony. The Custom of Paris also provided, it will be remembered, that a windmill could not be deemed banal ; ^ but as early as 1675 this technical distinction between windmills and water-mills, so far as it served as a basis for banal claims, was abolished in New France. In July of that year a petition was presented to the Superior Council by one Charles Morin, miller of the seign- iory of Demaure, praying that he might be allowed to grind the grain grown by the habitants of the neighboring seigniory of Dombourg, inasmuch as the mill of the latter was a windmill and consequently could not legally be included within the category of banal mills ; and also praying that the seignior ^ See, for example, Edits et Ordonnances, ii. 448-449 ; also Lafontaine, Observa- tions, 292 ff. ^ See above, p. 102, no THE BANALITIES. of Dombourg be forbidden to interfere with those of his habit- ants who chose to take their grain to the Demaure mill. The council, having heard the defence of the Dombourg seignior and his miller, and having taken the opinion of the attorney- general on the matter, decided " to dismiss the demand of the said Morin and to order that all mills, whether they be water- mills or windmills (^soit a eaii soit a vent\ v^\{\c\\ the seigniors have built or shall hereafter build in their seigniories, shall be deemed banal mills." Furthermore, the judgment forbade millers to offer inducements to habitants of other seigniories than their own, and provided that a habitant who took grain to any mill other than that of his own seigniory should be liable to have both his grain and the vehicle carrying it confiscated by his own seignior.^ The effect of this judgment was completely to set aside one of the important limitations which the Custom of Paris had placed upon the exercise of the banal rights ; indeed, the action of the council was but one of several instances in which the custom was disregarded and its provisions varied to suit the condi- tions existing in the colony. Many of the seigniories did not possess available water power ; and if water-mills alone were to be deemed banal, some of the seigniors would very probably have pleaded the absence of power as an excuse for refusing to proceed with the erection of their mills. In France the peas- antry were not likely to suffer through the non-erection of seign- iorial grist-mills, for, in the absence of these, facilities would be provided by private entrepreneurs ; but in the colony the sparse- ness of the population precluded any hkelihood that private enterprise would undertake to provide flour-mills for the habit- ants. The burden was therefore imposed upon the seigniors, but with a relaxation of the strict provisions of the Custom of Paris in regard to the nature of the mills. Many of the mills, perhaps most of them, were windmills, for the plain reason that in many seigniories no water power was available ; and windmills were discouragingly unreliable. Some- times, for example, men would bring their grain to the wind- mill of the seigniory, and find themselves forced to wait for ^ Edits et Ordonnances, ii. 62-63. THE BANALITIES. Ill days before the wind was strong enough to drive the clumsy wheels. To protect the habitants in this respect, the council provided that, if grain were not ground within forty-eight hours after its arrival at the mill, it might be taken to the water-mill of some neighboring seigniory. ^ It is evident, then, that by the early years of the eighteenth century the banal right in Canada had become differentiated in three particulars from that existent in France under the Custom of Paris: (i) the Canadian seignior exercised the right over every holder of en censive lands within his seigniory , — no one was exempt ; (2) any seignior who failed to build a mill within the space of twelve months from the time of receiving his seign- iory was liable, on the petition of any person or persons who chose to provide the service, to lose his banal right; (3) all mills, whether driven by water or by wind power, were capable of being made the basis for the exaction of the banality. From time to time regulations designed to reform various abuses connected with the milling system were issued by the intendants, for complaints seem to have been by no means few. In 1 71 5, for example, the bakers of the colony complained lustily that the flour made by the colonial mills was very poor, and that they were frequently cheated by the millers because the latter did not have proper weights and measures ; where- upon the council forthwith issued a code of regulations for the governance of both bakers and millers. By this code, the own- ers of mills were to be " held, under pain of fine, to have scales and weights, duly stamped and marked, wherewith to weigh the wheat which shall be carried to them to be ground as well as to weigh the flour which shall be made therefrom " ; and when these scales and weights were not provided by the seign- ior or the lessee of the mill, they were to be furnished at his charge by the judges of the royal courts. The judges were further instructed to examine the toll measure of each mill, " to see that it is made exact and plainly stamped, and to pro- hibit all millers from using any other measure than that which shall have been so inspected and marked." Millers were also enjoined to mark the weight of the grain on a tally and to hand 1 Edits et Ordonnances, ii. 63. 112 THE BANALITIES. an exact duplicate of this tally to the owner of the grain, in order that he might therewith verify the weight of his flour when it was returned to him ; and, finally, they were prohibited under pain of corporal punishment {ineme de piinition corporeile) from " wetting the grain brought to them in order to render the flour thereof heavier," — apparently a common trick of the millers.-^ In addition to this general code of regulations, ordinances were issued from time to time with a view to improving the machinery, equipment, and management of particular mills ; and from the considerable number of these ordinances it would seem that the system of seigniorial flour-making was far from being always satisfactory to the people. A few examples will suffice. In 1714 one of the habitants of the seigniory of Vincelotte, having been summoned before the court of the Prevote at Quebec to answer to the charge of having sent his grain to " strange mills," urged in his defence that the banal mill of his own seigniory was a poor one, that it " made very bad flour," and that the miller " gave a too small return of flour for the grain." ^ The court declared that the defence was a good one, and forth- with ordered the seignior to have his mill improved, giving him to understand that his exclusive right should be enforced when this order was obeyed. From this decision the seignior of Vincelotte made appeal to the Superior Council, which suspended any definite action pending a reference of the matter to the king.^ The latter promptly confirmed the action of the court of the Pre- vote, and issued instructions that, whenever the seigniorial mill was shown to be defective in any respect whatever, the habit- ants should be allowed to have their grain ground elsewhere.^ 1 " Arret du Conseil Superieur de Quebec, portant Reglement pour les Boulangers et Meuniers," December 2, 1715, Edits et Ordonnauces,\\. 169-170, especially §§ v-x. 2 A copy of this judgment is not printed, but a manuscript copy of the original was laid before the Special Seigniorial Court in 1854. See Lafontaine, Observa- tions, 323, note. ^ T\i& Jugements et Deliberations du Conseil Souverain de la Nouvelle-France does not contain the records of the council proceedings after December, 1 716. The documents in this contestation have, therefore, not been printed; but reference is made to them, and extracts are given, in Lafontaine, Observations, 322. * The royal despatch vi^as dated April 16, 1719, and was enregistered by the council on October 2, 1720 {^Ibid. 323). THE BANALITIES. II3 In 1728 a number of residents in the seigniory of Grondines set forth, in a petition to the council, that "it is most grievous and prejudicial to them to be compelled to take their grain to the windmill of the seigniory, inasmuch as the stones of this mill merely crack up the wheat ; for the mill has been absolutely ruined by the different persons who have been operating it, and the defects are increased by the fact that the Sieur Hamelin, who now works it [ Hamelin was him- self the seignior] is not a miller by trade." The seignior, being called upon for his defence, declared that his mill was in excellent order ; that, while it was true that he was trying to work the mill himself, this was not his fault, as his miller had been called out to do military service ; that he was about to secure the services of a competent miller, and hence there would be no reasonable ground of complaint in future. Finally, Hamelin asked the council to appoint experts to ex- amine the mill in order to verify the truth of his state- ments. Taking him at his word, the council forthwith ap- pointed a commission to inspect the Grondines mill, but with what result is not recorded. ^ In the same year the habitants of the seigniory of Sainte- Anne de la Perade sent a delegation before the authorities at Quebec to make complaint that the mill of their seigniory was " entirely out of order, " that the miller " not only was a dishonest man but was known to the seignior to be such," and that the mill was not of sufficient capacity to serve the needs of the numerous habitants. For these reasons, they asked to be allowed to take their grist to the mill of a neighboring seigniory. The intendant, Dupuy, finding on careful examina- tion of the complaints that the habitants had greatly exagger- ated the real condition of affairs, issued a judgment ordering them to patronize the mill of their own seigniory.^ The inhabitants of the seigniory of Neuville seemed to be more fortunate than their neighbors ; for their seignior had provided two mills for their use, a windmill and a water-mill. This double facility, however, appears not to have rendered them very satisfactory service, for in 1733 they made vigorous ^ Edits et Ordonnances, iii. 241. * Ibid, ii. 497-498. 114 ^^^ BANALITIES. protests to the intendant that one of the mills was seldom in operation and that the other turned out defective flour. " Our seignior," they further complained, "when the windmill fails for wind or the water-mill for water, keeps us hauling grain back and forth from one mill to the other as often as three times." ^ They also enumerated a list of improvements which they desired to have made in the mill of their seigniory, asking, among various other things, that the seignior be com- pelled to employ a professional miller who should live near the mill, " in order that the habitants may not have to travel leagues in search of him when they want their grain ground." In their further request that the seignior be ordered to provide his mill with " stamped weights of iron instead of common stones, the weight whereof is not shown," they unconsciously furnish an interesting commentary on the rude equipment of some of the banal mills.^ Complaints were sometimes made that the seigniorial mills were situated in inaccessible places, or at least in places which the habitants could not reach easily. Many seigniors appear to have built their mills along the banks of some rivulet or creek, without taking much thought as to the accessibility of the loca- tion ; and consequently their habitants were often left to make their way through the forest with loads of grain as best they might. In this difficulty the intendant, as usual, came to the relief of the people. In one case he ordered a seignior to re- build his mill at a point where it could be reached by water, or else to build a road to the mill at his own expense;^ and in an- other case, in which the seignior refused to open up a road, the court of the Prevote at Quebec rendered a judgment absolving all the habitants from their banal obligations to the recalcitrant seignior until a "passable road" should have been provided for their use.^ Since a seigniory frequently comprised from fifty 1 This was not the first complaint on this score ; for three years previously (1730) the authorities had found it necessary to issue a decree giving habitants of the seigniory of Saurel the right, when their grain remained unground at a windmill for forty-eight hours, to take it away and have it made into flour wherever they chose. See Edits et Ordonnances, ii. 340; also above, p. III. 2 Ibid. iii. 286-289. ^ Ibid. 210. * Perrault, Extraits ou Precedents tires des Registres de la Prcvoste de Quebec, 7 1. THE BANALITIES. II5 to one hundred square miles, the difficulty of transporting grain to the banal mill was at best often a very serious one. Ordi- narily transportation took place in winter, when heavy loads could be taken on sleighs along the river; for throughout the greater part of the French era the frozen St. Lawrence was the great inland highway for winter traffic. Apart from the necessity of building his mill in a place that would be easily accessible to his habitants, the seignior was com- pletely free as to the choice of a mill site. If he saw fit to erect it upon land which had previously been granted to a habit- ant, he might, on application to the council, obtain a decree reuniting the site to his own domain, the habitant having the privilege of selecting a new concession of similar extent from any portion of the ungranted lands of the seigniory. Several decrees of this sort were obtained.^ Through constant pressure upon the seigniors, the intendant Gilles Hocquart managed, during his tenure of office, to improve very noticeably the colonial milling industry. Hocquart hoped that Canada might become a large exporter of flour to the French West Indies, if not to France itself; but his hopes were not realized, for, even with the improvements which he managed to secure, the mills remained extremely crude. Very few seign- iors made any profit from them, and with no gain in sight were not easily induced to sink money in machinery; besides, few of them could have afforded to do so even had they been dis- posed. Moreover, the spur of competition, which serves in modern times to force improved methods in all branches of in- dustry, was entirely lacking in the milling system of the old regime, when the seignior had a monopoly of the grinding of his habitants' grain. Whatever his facilities might be, he re- ceived the same amount of toll; for the improving of his mill would not necessarily bring him a single additional minot of grist per year, or a whit more than one-fourteenth as his share. Under these circumstances, it is easy to see why Hocquart found his task of improving the system so difficult, and why the quality of the flour caused the bakers continually to complain. In one of his despatches, Hocquart advised the minister ^ See, for example. Edits et Ordonnances, ii. 466. Il6 THE BANALITIES. that the quality of the flour might be materially improved if the grain were properly cleaned before it was ground. He reminded him that there were, of course, no fanning-mills in the colony, and hinted that, since it seamed out of the ques- tion to compel the seigniors to provide them. His Majesty might lend a hand in the matter.^ As usual, the king, professing his constant interest in the development of colonial industry, promptly gratified the wish of the intendant by sending out six fanning-mills {cribles cyliiidriqiies et de fil de fer a la fa^on d'Hollande) at the royal expense. These arrived in 1732 and were distributed gratis among the more important mills, — those of the seigniories of Sault-a-la-Puce, Petit-Pre, Beauport, Pointe de Levy, St. Nicholas, and St. Famille. Accompanying the king's gift was an ordinance instructing the millers of these mills " to have all the wheat, of whatever quality, passed and fanned before its conversion into flour," and, furthermore, to take their toll merely upon the cleaned and fanned grain, not upon the whole grist. In compensation for this loss, however, they were to be allowed to exact six deniers per minot on the whole grist, in addition to the usual toll of one-fourteenth. All "tailings" were to be given back to the habitant.^ During the next year five more fanning-mills were shipped out by the king, and distributed by the colonial officials among the mills of the Montreal district.^ The king promised to send out a small number each year until all the mills should have been provided with fans ; but apparently he did not carry out his good intentions. The seigniorial mills were usually constructed of rough-hewn timber, but not a few were built substantially of stone.* The stone mills were usually of circular shape, and were frequently loopholed in order that they might be made to serve as places of refuge and defence in the event of sudden Indian attacks. The mill of the seigniory of St. Sulpice at Montreal, for ex- ^ Hocquart to Minister, October 4, 1731, Correspondence Generale, liv. 43. 2 Edits et Ordonnances, ii. 352-353. 3 They were given, one each to the mills of Lachine, Isle Jesus, and Isle Ste. Helene, and two to the mill of Terrebonne. * Several of these old stone windmills are still standing. THE BANALITIES. 11/ ample, was a veritable fort, and was rightly counted as one of the chief strongholds of the district. The mills built in seign- iories belonging to the various religious orders were, in general, much more substantial and much better equipped than those in the lay seigniories, a fact which is accounted for by the com- parative opulence of the orders. In all cases the seignior took from the lands of the seigniory, both granted and ungranted, such material as he found neces- sary for construction, and in some cases compelled the habit- ants to render their corvees in preparing the materials and erecting the mills. He was quite at liberty to have the ordi- nary annual days of corvee applied to this work when he so desired, but apparently he could not exact any special corvee for the purpose.^ In the negotiations which led to the abolition of the seign- iorial system in 1854, there were three questions regarding the extent of the banal rights which had to be determined before the amount of compensation due the seigniors for the loss of their seigniorial privileges could be properly ascertained. The first of these was the question whether all grain grown by the habitant was subject to the banal obhgation, or only such portion of it as was required for the consumption of the habitant and his family. The seigniors took the ground that their rights extended over all the grain of the habitant, whether it was intended for home consumption or for sale; but the authorities at Quebec did not support them in this view. The Parliament of Paris had decided that, according to Article LXXI of the custom, the seigniors could exercise their banal right only over the grain in- tended for consumption by the famihes of their censitaires, who were at complete liberty to have the grain intended for sale ground wherever they chose ; and this rule was fully recognized in Can- ada, as may be seen from the wording of an intendant's ordi- nance issued by B6gon in 1716, whereby the habitants of the seigniory of Champlain are ordered to take to the mill of the said seigniory the " grain intended for the sustenance of their 1 In one case, however, the intendant ordered the habitants of a seigniory to give special corvee to rebuild a bridge leading to a seigniorial mill. See Edits et Ordon- nances, iii. 459. Il8 THE BANALITIES. families on pain of paying a fine of ten livres to the church of the parish of the said seigniory." ^ During the greater part of the French era the question was of no considerable importance, for the amount of grain raised by the habitants was not much more than was necessary for their own use; in many years, indeed, it was found necessary to import grain from France. After the colony passed into British hands, however, the production of grain rapidly increased, and the question whether a seignior lawfully enjoyed a monopoly of milling all the grain raised within his seigniory became one of very considerable moment to both parties concerned. The second question was whether the banal right extended to all kinds of grain, or to wheat alone. As to the status of this question in France under the Custom of Paris there is some dif- ference of opinion. Henrion de Pansey affirms that the banal right extended not only to wheat but to barley, buckwheat, and all other grains;^ but other authorities of equal weight declare that the right could be legally enforced in regard to wheat alone.^ Judge Caron, in his opinion delivered before the Special Seign- iorial Court of 1854, declared that, while there might be a dif- ference of opinion regarding the legal extent of the right in France, the fact was that in that country wheat alone was gener- ally ground. " If any other kinds of grain were ground," says he, " it was such a rare occurrence that it was not thought of suffi- cient importance to be mentioned." In Canada, however, the extent of the right was undoubtedly wider.^ In the title-deeds granted by the seigniors the phrase '' portermoudre leurs grains'' was almost invariably used ; likewise in the various ordinances the term "grains " usually appears ; in some few instances the ex- pression is "porter moicdre leur bled" but these cases are dis- tinctly exceptional.^ The fact that, so far as can be ascertained, 1 " Grains qu'ils consomment pour la subsistance de leurs families " {Edits et Or- donnances, ii. 452). For other ordinances in which precisely the same words are used, see Ibid. i. 225, ii. 497, iii. 119. 2 Dissertations Feodales, i. 89. ^ See the authorities cited by Judge Caron in his Observations, 38. * Ibid. 39. ^ See ordinances of July 10, 1728, and July 11, 1742, Edits et Ordonnances, ii. A91> 565 ; also Titres des Seigneuries, 242-243. THE BANALITIES. II9 none of the habitants ever appealed to the authorities against the seigniors' claims to the extension of the banal right to all forms of grain would seem to indicate that the extension was not opposed. In fact, if we may judge broadly from the single case in which the matter came before the intendant, it would appear that the habitants actually desired to have all their grain ground at the seigniorial mill. In 1738, for example, the habit- ants of the seigniory of Beaumont petitioned the intendant to have it declared that the miller of the seigniory should be bound to grind " not only the wheat of the said habitants but also their other grain " ; whereupon the intendant ordered that " their other grain be ground in the said mill as well as their wheat." ^ Since there was little or no profit to be had by the seignior from the grinding of wheat, the work of grinding the less valuable grains must have been attended, in many cases, with actual loss to the mill owners. The third question was whether a habitant who purchased grain outside the seigniory and brought it within was or was not bound to have it ground at the seigniorial mill.^ There seems to be no colonial ordinance or judgment bearing directly upon this point ; but the understanding appears to have been that, when grain was both purchased and ground outside the limits of a seigniory, tlie habitant might bring home the flour without having to pay any toll to his own seignior, but when the grain was purchased outside and brought home unground, it was to be on the same footing as that grown within the seign- iory. The disposition was to look upon the right of banality as extending in no case beyond the limits of the seigniory ; the grain was held subject to the obligation if it were brought within the seigniorial limits and made use of there, even if it had been grown outside. ^ The right of banality carried with it the right, not only to pre- vent the erection of other than seigniorial mills within the seign- ^ Edits et Ordonnances, iii. 324. 2 Henrion de Pansey {^Dissertations Feodales, i. 191) asserts that in France a cen- sitaire who purchased grain elsewhere than within the limits of the seigniory might have it ground elsewhere, and might carry the flour home without violating the seignior's right of banality. '^ See Carun, Observations, 39-40. 120 THE BANALITIES. iory, but even to compel the demolition of such after they had been erected, a power which was sometimes exercised under cir- cumstances which entailed much hardship. For example, in 1698 one of the habitants of the seigniory of -Lauzon was permitted by the seignior to erect a mill, as there was at that time no banal mill in operation within the seigniory. Some few years later the seigniory was sold ; whereupon the new seignior forth- with ordered the mill to be closed, and upon the refusal of the owner to close it he procured an ordinance compelling compli- ance.^ Another case was that of the Brethren of the Hospital {Frkres Charroii) at Montreal, who had erected, on the plot of ground granted to them, a small windmill, which they used solely to grind their own grain. The Seminary of St. Sulpice at Montreal, within whose seigniory the land lay, not only de- manded the demolition of this mill, but obtained from the Superior Council an ordinance supporting its demand.^ Several other instances of the exercise of this right of demolition are on record.^ It will be seen from the foregoing consideration that the obligation of mill banality did not bear heavily upon the habit- ants so long as the country was sparsely settled. On the contrary, the presence of a mill within the limits of the seign- iory was a great convenience to the habitant; and the amount of toll exacted was far from exorbitant, especially in view of the limited custom which the mill might expect. Throughout the greater part of the French era the burden, such as it was, fell rather upon the seignior, who was obliged by the authorities to build the mill and work it, — for the most part, at a loss, — on pain of being deprived of what was sure to become in time a very valuable right. Moreover, the authorities showed them- selves ready at all times to Hsten to complaints on the part of the habitants as to the inefficiency of the seigniorial milling facilities, and were equally ready, when these complaints ap- peared well founded, to order the necessary improvements at the seignior's expense. As the population increased, however, ^ Edits et Ordonnances, ii. 145. 2 This ordinance is not printed. Its authenticity is vouched for, however, by Chief-Justice Sir L. H. Lafontaine, in his Observations, 334. ^ Cf. Caron, Observations, 40. THE BANALITIES. 121 toward the close of the French period and especially with the British acquisition of the colony, the burden shifted from the seignior to the habitants. The seigniorial mills now had plenty to do, and frequently found it impossible to handle all the grain brought in. In such cases the habitants were compelled either to wait their turn, often at great inconvenience, or to purchase the seignior's permission to take their grain elsewhere. Indeed, as will be seen later, the banal right gradually developed, with the growth of the colony in population, into a right on the part of the seignior to exact a money payment from the habitants for permission to take their grain where they chose. The other form of banal right which was claimed by the Canadian seignior, — the droit de four banal, or right of oven banality, — though exacted in very few instances, deserves some notice if only to show how zealously the authorities sought to curb any unreasonable pretensions on the part of the seigniors and to modify the seigniorial system into accord with colonial conditions. By the terms of the Custom of Paris the right of oven banality was put upon the same footing as that of mill banality ; that is to say, it was not an incident of the possession of a seigniory, but rested upon the contract made between the seignior and his censitaire when an original grant of lands was made. As the seignior could oblige his censitaire to have his grain ground at the seigniorial mill, so he had the right to stipu- late that the censitaire should make exclusive use of a banal oven or ovens erected within the limits of the seigniory, paying him a toll for such privilege.^ At the most, only three or four seigniorial ovens were ever erected in Canada ; but a clause re- quiring the habitants to bring their dough to a banal oven whenever such should be erected appears in a number of title-deeds.^ ^ The amount of toll exacted in France seems to have been usually one twenty- fourth of the bread. Cf. Mathieu, VAncien Regime dans la Province de Lorraine (1879). 285. 2 A banal oven was erected in the seigniory of Vincelotte by the seignior, M. Amiot, and there is some evidence that a few other seigniors followed M. Amiot's example ; but it is unquestionalily misleading to speak of the obligation of oven banality as having been imposed in any such general fashion as was that of mill banality. Cf. Thwaites, France in America, 132 122 THE BANALITIES. The increasing disposition to insert this obligation seems to have attracted the notice of the intendant in 1707; for in his despatch to the French minister in that year the ever-watchful Raudot speaks of this growing practice as one of the abuses of the seigniorial system. " The seigniors," he writes, " have also introduced into their grants the exclusive right of baking, or maintaining an oven, of which the inhabitants can never avail themselves, because, the habitations being at great distances from the seignior's house, where the oven must be established (which indeed could not be in a more convenient place for them wherever placed, since the habitations are very distant from one another), they could not possibly at all seasons carry their dough to it ; in winter it would be frozen before it got there. The seigniors, moreover," continues the intendant, "feel them- selves so ill-grounded in claiming this right on account of its impossibility, that they do not exact it now, but they will at some future time make use of this stipulation to compel the inhabitants either to submit to it or to redeem themselves from it by means of a large fine ; in this way the seigniors will have acquired a right from which the inhabitants derive no benefit whatever. This, My Lord, is what I call getting a title to vex them afterwards." ^ In reply to this despatch, the French minister advised the in- tendant : " With respect to the privilege of baking in seigniorial ovens, all that is to be done is to follow the arret of 1686, by which that matter has been definitely settled." ^ The minister, however, was here clearly in error, for the arret of 1686 had ref- erence wholly to banal mills, and contained not a single word in either direct or inferential relation to the question of seigniorial ovens; it simply ordered that seigniors who claimed the right of mill banality should forthwith erect their mills, or stand prepared to lose their privilege.^ Did the minister mean, then, that the same principle should be applied to the right of oven banality, ^ Raudot to Pontchartrain, November lo, 1707, Correspondance Ghierale, xxvi. 7-34- 2 Pontchartrain to Raudot, June 13, 1 708, Correspondence between the French Gov- ernment and the Governors and Intendants of Canada, etc., 9-10. ^ See above, p. 105. THE BANALITIES. 1 23 namely, that the seigniors who claimed this right should proceed at once with the erection of the ovens, or be deprived of the right for all time ? The intendant appears to have taken this to be the purport of the minister's instructions ; but as this interpretation would entail the pursuance of a policy which he did not regard as conducive to the interest of the colony, he sent a second de- spatch to France, in the autumnof 1708, in which he again adverted to the matter in order to show the minister the wide difference in the practical operation of the two forms of banal rights. In this communication Raudot stated very clearly his reasons for wishing a continuance of the obligation of mill banality and a suppression of the obligation of oven banality. " The only reason," he writes, "for which I have proposed that the privilege of baking {fours banaiix) be suppressed is that those who are subjected to it find that it is impossible to use the banal ovens on account of the distance at which they live from their seign- ior's houses, the seigniories in this country not being settled as they are in France, where almost all the inhabitants are collected in villages near each other, and all within reach of the banal ovens. Here the inhabitants of the seigniories, which are at least two leagues in extent along the river St. Lawrence, are all settled along the said river, so that, the banal oven being in the seignior's house (which is always in the centre of the seign- iory), some of the inhabitants would be compelled to carry their dough a distance of a league, or even two or three leagues, from their homes. Besides the inconvenience to which this would subject them at all seasons, there is even an impossibility in winter, as their dough would be frozen before they could reach the place where the oven was situated. It is a right. My Lord, which must be suppressed, because the inhabitants cannot derive any benefit from it, and because the seigniors have estabHshed, or wish to establish it only to oblige the inhabitants to redeem themselves from it by consenting to pay in future some heavy charge in consideration of the servitude from which they wish to be liberated. It is not so. My Lord, with the banal mill, this being always to the advantage of the inhabitants, who have not the means of erecting mills themselves; whereas the banal oven is to their disadvantage, since there is not one of them 124 THE BANALITIES. who has not an oven in his own house and as much wood as he wants to heat it." ^ This correspondence is of interest and importance as showing two significant features which seem to have characterized the working of the whole seigniorial system in Canada. In the first place, it emphasizes the occasional disposition on the part of the seigniors to stretch their legal claims to the point of interference with the normal comfort of their dependents, and to stipulate for rights which, from the very nature of things in Canada, could not be enforced in their stipulated form. On the other hand, it as clearly shows the zeal with which the colonial authorities sought to protect the habitants against obligations which, though strictly within the letter of the law, were regarded as unreason- able or detrimental to the interests of colonial development as a whole. It is evident that the authorities viewed the colonial feudal system as resting, partly at least, upon a utilitarian basis. To Raudot the question was not whether the grant of a seigniory gave the seignior a right to impose the obligation of oven banal- ity upon his dependents, for he knew that by the Custom of Paris the seignior clearly possessed such right; the question was rather whether a seigniorial privilege which operated to the inconvenience of the habitants without giving them any corre- sponding benefit should not be peremptorily suppressed. The rights of the seigniors, it may be added, were not, under the French rule, regarded as vested rights which might not be taken away without compensation ; it was only after the British con- quest that they came to be so regarded. The forebodings of the intendant in regard to the exercise of the right of oven banality proved, however, to be ill founded ; for, although no authority seems to have been obtained from the home authorities for the suppression of the right, the seign- iors, with very few exceptions, do not appear either to have insisted upon the rendering of the obligation or to have exacted a money payment in its stead. In France, as has been said, there were many other forms of banality, among them the right of maintaining banal wine- ^ Raudot to Pontchartrain, October 18,1708, Correspondance GeneraU, xxvii. 175-187. THE BANALITIES. 1 25 presses, banal slaughter-houses, and so on ; but none of these privileges seem to have been claimed in Canada. In a few in- stances the seigniors erected cider-mills ; but in each case this was done as a private commercial enterprise on the part of the seignior, and cannot be regarded as the exercise of any right of banality. It is the practice of most writers on the history of Canada to look upon the banalities as among the most odious incidents of the seigniorial system ; ^ and this attitude is, no doubt, accounted for by the fact that, with the growth of the colonial population during the latter days of the system, the enforcement of the seigniorial right of mill banality was attended with large profits to the seigniors and with considerable inconvenience to the in- habitants. The fact is, however, as has been pointed out, that both the French government and its colonial representatives sought to develop the system of banal mills in the interest of the poorer habitants, and not merely to the profit of the seign- iorial proprietors. This is shown by the issue of royal edicts like that of 1686,^ compelling the seigniors to erect their banal mills as " necessary for the subsistence of the inhabitants," as well as by the argument of Raudot that, whereas the mills were a great convenience to the people, the ovens were not, and that the rights of mill and oven banality ought, therefore, to be regarded from two entirely different points of view. It will be noticed that throughout the French period the complaints of the habitants to the authorities were not that the system of banal mills was burdensome as a system, but that individual seigniors were not living up to the obligations imposed upon them in the way of providing proper facilities. If one may judge from the amount of pressure necessary to compel the erection of the seigniorial mills, it seems probable that, had the milling industry been left to private enterprise, large tracts of sparsely settled territory would have remained ^ Cf. Parkman, The Old Regime in Canada, ii. 48. On the other hand, the milling right seems to have escaped the criticism of some in the belief that it was not enforced. Professor Goldwin Smith, for example (in his Canada and the Canadian Question, 72), thinks that it " must have been almost a dead letter." 2 See above, p. 105. 126 THE BANALITIES. without any milling facilities at all. Since, at the best, colonial agriculture developed under many very serious difficulties and discouragements, it behooved the authorities to see that any desirable conveniences which could be placed at the disposal of the farmers without expense to the public treasury should be given them, even though such favor imposed a burden upon the seigniors ; for, although the latter were by no means opulent as a class, they were better able than their habitants to bear the load. The action of the authorities of New France in encourag- ing the seigniorial milling industry is only one feature of a general economic policy which aimed at making agriculture more attractive and more profitable to the colonist; and agri- culture was strongly in need of official encouragement, for the attractions and profits of the fur trade exerted an almost irre- sistible influence in drawing the habitant off his land into the forest. Whatever judgment may be passed upon the methods which the authorities employed in fostering agriculture and in endeavoring to hold the passion for forest trade within its proper bounds, there can be little doubt that the general policy was dictated by the soundest interests of permanent colonial progress. Talon, Raudot, and Hocquart fully recognized that they could lay solid foundations for later colonial growth, not by permitting the population to devote its whole energies to the exploitation of a transitory resource, such as the peltry traffic was sure to be, but by encouraging it to clear and cultivate the land. CHAPTER VII. THE CORVEE AND OTHER EXACTIONS. The seigniorial rights enumerated in the foregoing chapters by no means exhaust the hst of privileges possessed by the seign- iors in relation to their dependents. There were various other rights, no one of which constituted in itself an important incident of Canadian feudalism, but which, taken together, contributed substantially to increase the prestige, power, and income of the seigniors. Among these were the right to exact a certain num- ber of days of corvee, or forced labor, in each year; the right to make certain reservations in the deeds of lands granted to habit- ants, and to insert divers prohibitions in them ; the droit de peche, or right to a share of the fish caught by the habitants in seigniorial waters; the right of ferry over rivers within the seign- iorial jurisdiction; and various other privileges. First in point of importance was, of course, the corv6e. By the Custom of Paris the seignior's right to exact days of corvee from his dependents stood upon the same basis as his right to enforce the banalities ; that is to say, he could legally enforce the right only when he had stipulated for it in the title-deeds of granted lands.^ It would seem that, during the earlier years of the French rule in Canada, it was not customary to stipulate for or to enforce the exaction. There may have been, and prob- ably were, exceptions to the general rule ; but the fact that in Raudot's despatches of 1707-1708 the corvee is not mentioned at all would seem to indicate that forced labor was not being exacted by the seigniors in any general fashion, otherwise the watchful intendant would in all probability have included it with the oven banahty and the droit de retrait'm. his list of "vexatious exactions."^ ^ "Nul seigneur ne peut contraindre ses sujets . . . faire corvees, s'il n'en a titre valable, ou aveu et denombryment ancien " i^Cotitiime de Paris, article Ixxi). ^ See above, p. 98. 127 128 THE CORVEE AND OTHER EXACTIONS. As time went on, however, the seigniors seem to have begun the practice of stipulating for a certain number of days of corvee per year, and apparently of exacting it even in cases in which they had made no such stipulation. In such instances the habit- ants were sometimes told that the labor was to compensate the seignior for the use of the seigniorial commons by their cattle, or for their privilege of taking wood from the seigniorial forests, or for some other benefit of a like nature.^ In 1716 the in- tendant Begon, in a despatch to the French minister, complained that many of the seigniors induced their habitants to render corvee in clearing the timber off parts of the seigniorial domains, on the understanding that, when the land had been cleared, it would be placed at their disposal for pasturage ; but that after the work was done the habitants often found that they were com- pelled, as the price of using this newly cleared land, to give their seignior a number of days of free labor each year on his other lands. Begon, therefore, asked for an ordinance forbid- ding the exaction of corvee, — and particularly upon such pre- texts as those mentioned, — except in such cases as the Custom of Paris permitted.^ In the spring of the following year (171 7) the matter was referred by the minister to the Council of the Regent, which passed a minute declaring that, in the opinion of the council, a decree in accordance with the wishes of the intendant should be issued. No special decree seems to have followed ; but in the general arret, which was drafted in May, 171 7, for the reform of the whole seigniorial system in the colony, a clause was in- serted explicitly forbidding the exaction of corvee " under any pretence whatever." Had this arret received the royal assent and been promulgated in Canada, the end sought by Begon would have been attained ; but, as has already been shown,^ it never received the assent of the authorities, and affairs remained just ^ In France, the right of the seignior to exact corvee or other compensation from peasants for the privilege of pasturing their cattle upon the waste lands of the seign- iory was known as the droit de blairie. The right was recognized in several coutiimes. Cf. Tocqueville, 77/1? Old Regime and the Revolution, 337. 2 Begon to Minister, February, 17 16, Correspondance Generale, xxvi. 90. This despatch does not bear the day of the month. 3 See above, p. 42. This unsigned arret is printed in Titles and Documents, i. 18-19. THE CORVEE AND OTHER EXACTIONS. 129 as they were before Begon brought the matter to the notice of his superiors. The unsigned arret of May, 171 7, proposed to go much far- ther, however, than the intendant had suggested ; for it sought to put an end to the exaction of corvee even when the seignior had stipulated for it, as, according to the Custom of Paris, he had a perfect right to do. On the other hand, the colonial authorities had, on more than one occasion, sanctioned the exaction when the seignior had been able to show them a copy of his contract of concession to the habitant containing the corvee clause. In 1 7 14, for example, certain habitants of the seigniory of Desjordy presented to the intendant a petition complaining that the seignior sought to exact days of corvee in proportion to the amount of land held by them ; that despite this exaction he refused them the use of the seigniorial domain for pasturage ; and that he persisted in asking for the labor in the busiest seasons of the year. The seignior, being called upon for his defence, contended that he was entitled to the corvee which he demanded, " inasmuch as by their deeds of concession the habit- ants are bound thereto " ; that he was not bound by law or custom to allow his habitants the use of his land for pasturage ; and that he had a right to select the seasons of the year in which the labor should be given. The intendant, " having heard the parties, considered the petition, and examined a deed of con- cession," issued the following decree: "The said habitants shall give to the seignior the daily corv6e labor mentioned in their deeds, which said corvee labor the said seignior will exact from them at different times and separately, — to wit, one day during seed time, one during hay time, and one during harvest; those who have more than three days to give shall give the additional ones during the season of ploughing; such of the habitants as desire to exempt themselves from the said corvee labor may do so upon payment to the said seignior of forty sols for each day of labor, provided payment be made forthwith to the person notifying them to furnish the labor." ^ It will be noticed that the exaction was enforced because it ^ Edits et Ordonnajtces, ii. 437. 130 THE CORVEE AND OTHER EXACTIONS. had been bargained for, not because it was regarded by the authorities as compensation on the part of the habitants for the use of the seigniorial domain as pasture land. It will also be noticed that the only steps taken by the intendant were in the direction of protecting the habitants against the enforcement of the right to the detriment of their own private employments. This protection he secured, in the first place, by providing that the corvee could be exacted only at different seasons of the year, and in the second place by giving the habitants the option of commuting the obligation to a money payment. Some two years later (January 22, 1716) a petition was pre- sented to the intendant by Frangois de Chavigny,^ who styled himself "seignior of the fief and seigniory of La Chevrotiere," complaining that some of his habitants had refused to perform the days of corvee to which they were bound by the terms of their title-deeds, on the ground that the seignior was not will- ing to furnish them with food and tools during their period of labor, as, they claimed, he was bound to do. Chavigny asked for an ordinance upholding his refusal to meet the demands of the habitants. The intendant, on looking into the matter, found that a some- what similar case had come before his predecessor, Raudot, in 1 7 10, and that in this case the decision had been in the seign- ior's favor.^ He therefore ordered that the habitants of La Chev- rotiere should "give their corvee labor free of all expense to the seignior, and without requiring him to procure for them their food and the necessary tools." In the concluding paragraph of this judgment, however, appears the somewhat startling prohi- bition : " We do hereby forbid the said Sieur de la Chevrotiere and the other seigniors of this colony to introduce into the deeds of concession which they may hereafter grant the said corvee clause {la dite clause de corT.'ecs) on pain of nullity." ^ It seems strange that, if the intendant had in mind a general inter- 1 In the Edits et Ordonnances this name is erroneously spelled " Champigny." ^ Although no copy of Raudot's judgment seems to have been preserved, the gist of it is given in Begon's decree of January 22, 1716, which shows that it was rendered in favor of M. Robineau, seignior of Portneuf, on June 4, 1 710. See Edits et Ordon- nances, ii. 444. 3 Ibid 445. THE CORVEE AND OTHER EXACTIONS. 131 diction of future stipulations for corvee labor in the title-deeds of subgrants, he should not have issued, or have had the Supe- rior Council issue, a general ordinance to this effect, instead of inserting the prohibition in a judgment rendered in a private dis- pute and therefore to be published only in the neighborhood im- mediately concerned. Still, the intention of Begon, as shown by the wording of the judgment, seems quite clear. This judgment was rendered on January 22, 1716; and hence it was with the case fresh in mind that the intendant, sometime during the course of the following month, wrote to the minister asking that a decree be issued dealing with the corvee " and a variety of other obligations contrary to the Custom of Paris and to the interests of colonial development." The outcome of his appeal has already been seen.^ Those seigniors who had before 1 7 16 stipulated for days of corvee continued to exact them from their dependents, and were supported by the authorities in so doing.^ There is also evidence that many of them took occasion to insert the stipulation in concessions made after 17 16; but it does not appear that they successfully sought the support of the authorities in this procedure. Extra days of corvee labor were sometimes demanded by the seignior from his dependents for certain special purposes, such, for example, as the building and repair of roads and bridges, the erection and repair of the parish church and presbytery, and occasionally for the erection of the manor-house and mill. While the habitants do not appear to have been under any legal obligation to respond to such demands, in the event of their refusal the seignior could appeal to the intendant, who, if he thought that the case was one in which the habitants ought in the general interest to help the seignior, would issue an ordinance providing a penalty for continued recalcitrancy. Thus, in 1730 the habitants of the seigniory of Demaure were ordered to proceed to work as ' Above, p. 128. ^ The Special Seigniorial Court of 1854 decided, with only one dissenting opinion, that " the covenants contained in some deeds of concession, imposing days of per- sonal labor {journees de corvee) upon the habitants for the advantage of seigniors, are legal and give ground for indemnity." Begon's judgment of January 22, 1716, was therefore held not to have established a general prohibition. 132 THE CORVEE AND OTHER EXACTIONS. soon as the harvest should have been garnered in, and "to work incessantly" until the bridge leading to the seigniorial mill should have been repaired.^ Ordinances were likewise issued from time to time command- ing the habitants to render service in the construction of fortifications, public highways, and other works of general colonial interest. The public roads of the colony were built, for the most part, by the corvee labor of the habitants super- vised by the seignior or by the captain of militia in the parish, the whole under the general coordination of a royal official known as the gi'and voyer. The duties of this official, as set forth in an ordinance of 1706, were, in general, "to visit all the seigniories in which main roads have not been built, and to build such in concert with the proprietors of seigniories, or, in their absence, with the capitaines de la milice, unless there be a royal justice present; and to decide, in ac- cordance with the opinion of six of the oldest and most promi- nent habitants of the place, where the roads ought henceforth to traverse, provided always that such roads shall be at least twenty-four feet wide. " The ordinance further provided that the habitants of every such place should, "each for himself, aid in the construction of such roads and give his days of corvee for this purpose whenever necessary." ^ This corvee, exacted for the construction of public works under authority of the royal officials at Quebec, was commonly known as the "king's corvee" to distinguish it from the ordinary annual corvee exacted by the seigniors for work upon their own domains. The amount both of seigniorial and of royal corvee exacted from the habitants varied in different sections and at different periods. Usually, but not always, the amount of seigniorial corvee was proportioned to the size of the grant obtained by the habitant, the seignior exacting from one to thirty days per year. Very rarely, however, did he demand more than six days in all. The amount of royal corvee exacted in any locality obviously depended upon the extent and nature of the public works to be constructed. In the third volume of the collection of Edits et Ordonnances will be found 1 Edits et Ordotmatices, iii. 459. 2 Ji^ij^ jj. i^-j^ § viii. THE CORVEE AND OTHER EXACTIONS. 133 many decrees ordering habitants in all parts of the colony to turn out and labor, under the supervision of the grand voyer, in the construction of all sorts of public works. ^ The extent of the burden thus imposed upon the population of the colony is not easily estimated, but it does not appear to have been so great as to evoke any general protest from the habitants. As the obligation might be commuted by the payment of a small sum, it may be regarded as little more than a tax upon the people for the construction and repair of necessary public works.^ It was, in a way, the tritioda nccessitas of the old regime in Canada, and did not differ very essentially from the so-called " statute labor " obhgation which is imposed upon the rural population in some of the Canadian provinces at the present day. After the British conquest, however, the seigniors seem very generally to have increased their exactions of corvee labor, with the object of augmenting the sum due in commutation by the habitants. In the report of the commission which was appointed by the legislature in 1843 to examine the work- ings of the seigniorial system, it is affirmed that many of the seigniors had taken occasion, whenever new deeds {Hires noii- vels) were executed, to insert obligations of corvee labor, and, despite the prohibition contained in the judgment of 1716, had very generally continued the practice. The habitants, for their part, according to the report, regarded the exaction of the corvee as " hateful, odious, humiliating, and a badge of servitude."^ In granting lands, it was customary for the seigniors to make certain reservations, the nature and extent of which varied in different parts of the colony and at different periods in the history of the seigniorial system. Although there were in many seigniories reservations of a local character made to fit local conditions, there were only four which appeared so fre- ^ See, for example, Edits et Ordonnances, iii. 176, 197, 216, 217, 284, 436, etc. 2 In response to a petition presented by certain habitants of the seigniory of La Chevrotiere in 1716, the intendant fixed the amount to be paid in lieu of corvee labor at " twenty sols per year for each farm of three arpents in frontage by forty in depth" (7^2^.11.449-450). * Report of the Commissioners, 1843, Titles and Documents, i. 70. 134 ^-^^ CORVEE AND OTHER EXACTIONS. quently as properly to be termed general features of the system. These were the reservations of wood and stone, of mines, ores, and minerals, of the use of beaches, and of mill, manor, and church sites. The reservation of wood and stone was the most common, of the four ; it appears in so large a number of the title-deeds of subgrants that it may very properly be looked upon as an almost invariable incident of tenure en censive. In the deeds of seigniories granted by the crown, it was, as has been seen,^ the custom to stipulate for the reservation by the crown of such timber as might be found suitable for use in the royal ship- yards, as well as of such building materials as might be needed in the construction of forts, batteries, and other public works in the colony. In order, therefore, that these reserved rights of the crown might be protected against any interference by the habitants, the reservations contained in the seigniorial title- deeds were repeated in the deeds of subgrants, whether held en arri^re-fief or en censive. The seigniors, however, went farther than this. In addition to reserving such materials as might be sought by the royal authorities, they usually stipulated that they should be at lib- erty to take from the granted lands such quantities of wood and stone as might be found necessary in the construction of the seigniorial manor-house, mill, and church, and frequently, also, such firewood as might be needed for heating any of these buildings when erected. Occasionally, too, they reserved to themselves all the standing timber on granted lands, allowing the habitants to fell it for use or for sale only on condition of paying a tax. From the beginning to the end, the seigniors seem to have had no legal right to make any reservations beyond what were necessary to give force and effect to the royal reservations stipulated for in their own titles. In general, the colonial authorities supported the habitants in resisting reservations beyond this point. Thus, in 1707 the intendant forbade the Sieur de Hertel to " take or carry away any wood from the lands belonging to his habitants " ; ^ and in 1714 a further ordi- ^ Above, ch. iv. 2 £;^i(s et Ordonnances, iii. 130. THE CORVEE AND OTHER EXACTIONS. 135 nance directed that the seignior of Chambly should pay for all the pine timber which he had taken from the lands of his habit- ants for use in the construction of his mill.^ Sometimes, on the other hand, the authorities pursued a different policy. In 1706, for example, the intendant supported the seigniors of the island of Montreal in their claim to the right to take firewood {bois de chanffage) from the lands of habitants on the island, whenever they had stipulated for such right in the title-deeds of subgrants.^ The fact that, in this instance, the seigniors were a religious organization may have been regarded as a circumstance warranting a departure from the usual official policy. Presently, however, the intendant Begon, in his long despatch of 1 716, complained that the practice of making wide reserva- tions was proving detrimental to the progress of the colony. " Some of the seigniors," he wrote, "reserve to themselves in their deeds of concession, the timber necessary for their houses and other buildings, and the wood necessary for fuel. Others, again, reserve timber for sale. Yet others grant to their habit- ants leave to cut timber upon the ungranted lands, on condition that they pay ten per cent of the value of the boards obtained therefrom. When they concede woodlands they reserve for themselves all the oak and pine timber thereon without com- pensation to the habitants, and thus they are able to exact any price they please for this wood, this being not only prejudicial to building, but preventing a trade in such timber with the West Indies and with France." ^ It is worth noting that the draft arret of 1717 proposed to " discharge the habitants from the seigniorial reservation which forbade them to take any wood of what kind soever, whether for building or for fuel, without payment";* but the general attitude of the authorities toward the whole matter of timber reservations is best stated in a judgment of the intendant, ^ Edits et Ordonnances, iii. 166. 2 Ibid. 123. By this ordinance the seigniorial right was, however, limited to tak- ing firewood from not more than one arpent in sixty. ^ Begon to Minister, February, 1716, Correspondance Generate, xxvi. 124. * Printed in Correspondence between the French Government and the Governors and Intendants of Canada, etc., 17—18. 136 THE CORVEE AND OTHER EXACTIONS. rendered in July, 1722, in regard to certain claims on the part of the seignior of Isles Bouchard. It appears that one of the habitants of this seigniory had, in clearing his grant, cut down some oak timber in violation of a clause in his title-deed by virtue of which the seignior had reserved to himself the exclu- sive right of cutting and using all oak timber in the seigniory; whereupon the seignior, by way of compensating himself, had seized a quantity of his habitant's grain. With a view to secur- ing its restoration, the habitant therefore made appeal to the intendant, who readily granted the redress asked for, and inter- dicted the seignior from any further interference with the habitants in this direction. ^ In the course of the judgment the official attitude toward the question of timber reservations is clearly stated as follows: "The reservation by the seign- iors in their title-deeds of concession is made in consequence of the clause inserted in all the concessions of seigniories in this colony, by which His Majesty reserves for himself oak tim- ber for shipbuilding and obliges the seigniors to reserve and cause to be reserved the said oak by their habitants. This does not confer upon the seigniors any property in oak timber found on the lands which they concede ; His Majesty's inten- tion is that the lands conceded shall be made productive, and this can be done only by the habitants cutting down and clearing off all the wood thereon ; ... it would not contribute to the advancement of this colony if seigniors were allowed to retain any property in the lands which they have conceded subject to the seigniorial cens et rentes.'' ^ This passage shows that the seigniorial rights in regard to reservations of timber were limited by the royal reservations, — that the seigniors were allowed to stipulate in the matter only so far as was essential to the proper enforcement of the reserva- tions made by the crown. From time to time the crown took advantage of the reservations which it had thus made. In 1731, for example, it issued an ordinance giving to certain naval con- structors power to take from the seigniories of Berthier and Dautray some two thousand feet of oak timber to be used in the construction of a public vessel, " agreeably to the reserva- 1 Edits et Ordonnances, ii. 471. '^ Ibid. 472. THE CORVEE AND OTHER EXACTIONS. 137 tions made by His Majesty of such timber for his own use in the concessions of lands and seigniories of the colony." ^ Even when the reservation had not been made in the original seign- iorial title, it was sometimes effected later by ordinance. Thus, in 1740 an intendant's ordinance, after declaring that informa- tion has been brought to the authorities as to the existence of considerable quantities of valuable oak timber in certain seign- iories in the vicinity of Montreal, summarily orders all proprie- tors in that vicinity, " of whatever quality and condition they may be," to refrain from cutting down any oak trees until " such of the same as shall be found suitable for the construction of His Majesty's ships shall have been marked and reserved." ^ In the same year a further ordinance summarily reserved a quantity of standing red pine in the seigniory of Sorel as being suitable for mastings for the navy ; ^ and in 1742, in order that no suitable timber should escape reservation in any of the seign- iories, Messrs. Noel Langlois and Pierre Abraham, two car- penters, were commissioned to make a tour of the colony for the purpose of looking up all serviceable timber and presenting a report of their investigations to the council.* The members of the Special Seigniorial Court, which, after 1854, looked into the validity of seigniorial reservations and the right of seigniors to compensation on the abolition of their seign- iorial tenure, were, with one exception, convinced that only such reservations were valid as the seignior necessarily imposed in order that he might be able to carry out the obligation laid upon him by the crown in regard to the preservation of suitable standing timber.^ The practice, therefore, of reserving fire- wood, stone, sand, and other materials seems to have had no legal basis ; and yet the fact remains that many such reserva- tions were made and enforced throughout the whole period of the old regime, and even under British rule. ^ Edits et Ordonnances, ii. 348. ^ Ji,ij^ -^82. '^ Ibid. iii. 447. * Ibid. 469. ^ " All reserves must be held to be legal, the object of which was the obligation upon the tenant (censitaire) to allow the accomplishment by the seignior, and the observance by himself, on his part, of the obligations of that nature, stipulated by the king in the grant of the fief" (^Proceedings of the Special Seigniorial Court, 1S56, p. 82). From this decision the Hon. Mr. Justice Mondelet dissented, for reasons given in his Observations, 50-52. 138 THE CORVEE AND OTHER EXACTIONS. With only two exceptions, all the title-deeds of lands granted en seigneurie contained a provision requiring seigniors to report to the representative of the crown in the colony the discovery of any mines or minerals within the limits of the conceded lands. This precaution was taken to secure the king in the exaction of the share due to him as dominant seignior. In order to carry out this obligation, the seigniors, in turn, inserted in the deeds which they granted to their habitants a provision reserving rights to all mineral deposits found in the subgranted lands.^ As there appear to have been no important discoveries of mineral wealth within the limits of the seigniories, however, this obligation was a formal one. Most of the seigniories, as has been noted, fronted on the St. Lawrence, in the waters of which a considerable fishing industry was carried on. As many of the seigniors claimed the exclusive right to iish in the waters fronting their seigniories, and as some of them were in the habit of farming out this right,^ it was customary for them to provide, in the deeds which they gave their habitants to concessions fronting on the river, that the grants should not include the beach between high and low water mark. The use of this the seignior reserved for himself and for those to whom he might sell the fishing rights. In such cases the habitants were not to fish in the waters fronting their lands without the permission of the seignior.^ Although this reservation was a common one, it seems in most cases to have had no legal basis. The seignior had the right to reserve for himself the beach between high and low water mark only when in his seigniorial deed this tract had been expressly given to him ; otherwise, as the Special Court held, 1 It was held by the Special Court (see its Proceedings, 82) that the terms "mines" and " mineral deposits " did not include stone and slate quarries, sand an 1 gravel pits, and so on, which, after the conquest, some of the seigniors sought to include within them. '■^ In 1723 the seignior of Portneuf, as we are told, leased his fishing rights for the consideration of " four hogsheads of eels (^quatre bar7-iques cf angtiille) per year " (^Edits et Ordonnances, iii. 205). 3 The peculiar method of catching fish and eels on the tidal beaches by means of the " traps made of twisted oziers " which were commonly used by the habitants, is described in Kalm's Travels into North America (1772), ii. 253-254, THE CORVEE AND OTHER EXACTIONS. 139 the rights of the seigniors extended "to high water mark only." ^ In only a very few cases had the crown expressly granted to the seigniors the wider right. While many of the seigniors reserved to themselves exclusive rights in the beaches of their seigniories, most of them allowed their habitants to fish freely, subject to the seigniorial droit de peche? In many cases the seignior reserved the right to take from subgranted lands such locations as might be found suitable for the erection of a mill, manor-house, church, or presbytery. The plots reserved varied in size ; but, even when no stipulation had been made, custom seems to have sanctioned the taking of not more than six arpents of land for such a location. No monetary compensation was payable to the habitant, but the practice was to allow him his choice of an equal area in the unconceded lands of the seigniory. In one case the intendant, when called upon by a seignior, forced a habitant to accept such an exchange.^ After the conquest the number of reservations which the seigniors attempted to make was greatly increased. Some tried to reserve the right to divert watercourses, some to make exclusive use of all waterways for the generation of power, some to take from the habitants any land which might be found necessary for a railroad right of way, some to change the place and time at which the seigniorial dues should be payable, and so on. The Special Seigniorial Court decided that all of these reservations were illegal.* Besides making these numerous reservations, it was custom- ary for seigniors to insert in the deeds given to their habitants various prohibitions, some of which were both legal and reason- able, others clearly illegal or unreasonable. A common prohi- bition was that which forbade trade with the redskins. Many seigniors had, by their own title-deeds, been forbidden to allow their seigniories to be made bases of trade with the Indians, and were therefore justified in placing a similar prohibition in the deeds of their dependents ; but others, although themselves not forbidden to trade, were very ready to deny their habit- 1 Proceedings of the Special Seigniorial Court (1856), 68. 2 See below, p. 140. ^ Edits et Ordonnances, ii. 468. * Proceedings of the Special Seigniorial Court, 79-80. 140 THE CORVEE AND OTHER EXACTIONS. ants the privilege. This prohibition found consistent support from the colonial authorities, whose aim it was to concen- trate the fur traffic at Quebec, Three Rivers, and Montreal : they did not desire to see a trading station at every outlying hamlet or cote. It may well be doubted, however, whether the prohibition availed much in the long run ; for, when the habit- ants were forbidden to do a little trading in their spare time, they not uncommonly abandoned their farms and took them- selves off to the wilderness to become coureurs-de-bois, beyond the reach of both the royal and the seigniorial authorities. Again, many seigniors inserted clauses in the deeds of their dependents forbidding them to sell marketable timber, to saw deals, to erect any mills, factories, or other works {jisines) moved by water, wind, or steam, with various other interdictions of a like nature. Most of these prohibitions made their appearance during the period following the conquest ; and, although none of them rested upon any legal basis, they seem in many cases to have been respected by the habitants. In so far as they were en- forced, such prohibitions assisted in retarding the industrial development of the province. Finally, there were several minor rights which some seigniors stipulated for and some did not, and which some exacted at one time and not at another. Among these was the droit de pecJie, or the right of the seignior to one fish in every eleven caught by his dependents.! Some writers have mentioned this as a gen- eral and important exaction,^ whereas it appears to have been insisted upon quite infrequently and never to have been re- garded by the seigniors as of much account. When the habit- ants fished for their own use, the seignior usually exacted nothing ; but when they made a business of fishing for the market, it was not uncommon for him to exact a hogshead {barriqiie) or so per season in commutation of his droit de peche? 1 On the origin, nature, and extent of this right in France, see Dufresnoy, His- toire du Droit de Peche dans VAncien Droit Fran<;ais (1896). 2 For example, Parkman, The Old Regime in Canada, ii. 48. 3 Of certain habitants in one seigniory who were engaged in the porpoise-fishing industry, the seignior exacted one-tenth of the oil produced. See Edits et Ordon- nances, ii. 541. THE CORVEE AND OTHER EXACTIONS. 141 In the same category may be placed the droit de chasse, or the right of the seignior to hunt over the lands of his depend- ents.^ Those who are familiar with the historical literature of the old regime in France need not be reminded of the un- reasonable and often outrageous way in which many French seigniors were accustomed to take advantage of the hunting right, by riding with large parties of friends over the growing fields of the hapless censitaires, and destroying in an hour the fruits of a season's toil. In French Canada the habitant. was never subjected to any odious exaction of the divit de chasse. Some seigniors claimed the privilege as an honorary right {droit honorifiqiie^ ; but no one seems to have availed himself of it in such a way as to give his habitants just ground for complaint. The chase-loving Canadian seignior could, of course, find abun- dant scope on the often too-extensive unconceded lands of his seigniory. Upon these he had full liberty, in which he was confirmed from time to time by decrees of the authorities enjoining the habitants not to hunt on the unconceded lands without the seignior's express permission.^ Some of the seigniors claimed the right of establishing ferries over rivers that ran through their seigniories, and of exacting toll from passengers ; and occasionally a seignior leased this privilege to some one who would provide a scow and act as ferryman. The seignior's right in this matter does not seem to have been called in question during the French period ; and in connection with the abolition of the seigniorial system in 1854 claims for indemnity were based upon the loss of this ferry privilege. The validity of such claims turned on the question as to what rights a seignior possessed in the waters of his seign- iory. In the case of navigable streams, he had no rights beyond high-water mark, unless such were expressly given him by deed from the crown ; but over the smaller, non-navigable streams, as well as over the ponds and lakes within his seigniory, his authority was complete. When a non-navigable stream divided two seigniories, the littoral seigniors had jurisdiction to the middle of the waterway. On the foregoing points the authori- ^ L. Moyat, Etude Ilistorique, Critique, et Comparee sur le Droit de Chasse {\()od). 2 Edits et Ordonnances, ii. 73, 384, 428; iii. 160, 263. 142 THE CORVEE AND OTHER EXACTIONS. ties in both France and Canada seem to have agreed ; but as to the legal basis of the seignior's control of small streams and lakes there is some difference of opinion. Some believe that his right accrued to him as seignior, that it was an incident of seigniorship ; others maintain that it belonged to him as a judicial officer, as a seignior with powers of haute justice?- In France the question was one of academic interest only ; in Canada it had a tangible importance. After the conquest all the judicial rights of the seigniors were taken away without compensation; but in accordance with the pledge made in the Treaty of Paris (1763) that all rights of property should be respected by the new British suzerain s,^ their ordinary pro- prietary rights were left intact. When, therefore, in 1854 the proprietary rights of seigniors were taken from them with compensation, the question was raised whether the seigniorial rights over rivers were among the judicial rights of the seign- iors, which had long since been abolished, or among the pro- prietary rights, which had been preserved. This was one of the most difficult points which the Special Seigniorial Court found itself called upon to decide ; but it was finally held by a majority of the justices that seigniorial rights over the smaller streams were proprietary and not judicial in their nature.^ The foregoing list does not completely exhaust the rights occasionally claimed by the Canadian seignior; it comprises only those which were exacted with some degree of frequency. Here and there one finds a shred or two of evidence indicating that a seignior laid claim to some other right, but such in- stances are not numerous. Some few seigniors, for example, appear to have claimed the right to offer their own grain and cattle for sale to buyers a certain number of days in advance of their habitants; the right to maintain tjanal slaughter-houses; the right to keep for exclusive service in the seigniory a banal bull, boar, or ram ; the right to keep a seigniorial dove- cote;* the droit de jambage, or marital right; and various other 1 See the authorities cited in Mondelet, Observations, 34 ff. ^ gee below, p. 191. 8 Proceedings of the Special Seigniorial Court (1856), 68-73. * The droit de colomhier v/3.s, by the Custom of Paris (articles Ixix, Ixx), recognized as appertaining to all seigniors possessing more than fifty arpents of land. Cf. VioUet, Histoire du Droit Civil Fran<;ais, 712. THE CORVEE AND OTHER EXACTIONS, 143 privileges.^ Although all these rights are mentioned in the data of the French period, it is almost certain that little or no serious attempt was made to enforce any of them, except per- haps in very rare instances.^ It would be safe to hazard the opinion that most of them were never exacted at all. Taken as a whole, the burdens imposed upon the habitant by the seignior of the old system in Canada were far from onerous. To declare that they were "more nominal than real" ^ seems scarcely justifiable in view of the general poverty of the class upon which they were imposed ; they certainly were not so regarded by the habitants themselves. Still, the Canadian habitant was, in this respect, much better off than his proto- type, the French censitaire. In all cases his obligations were fixed with at least some degree of definiteness, and the method of exaction was never harsh or cruel. From the most odious incidents of the seigniorial system in France he was almost entirely free. He was protected, moreover, not alone by the letter and the spirit of the law, but by the administrative juris- diction of the intendant, to whom he might appeal with little expense and with reasonable hope of success whenever a seigniorial exaction, though legal, seemed unjust or contrary to public poHcy. The Canadian habitant, though poor, seems never to have become degraded and hopelessly dispirited like the peasant in France. Various writers of the time commented upon his bon- homie and his ability to make light of his troubles and difficulties. In 1737, Hocquart sent to the minister a very interesting pen portraiture of the Canadians, in the course of which he pointed out that the habitants of New France were not " coarse and boorish rustics " like the peasantry of the provinces at home, but that they were well-dressed and displayed good manners.* Their dweUings, built of timber or stone and whitewashed on the outside, though usually small, were comfortable and 1 On the nature of these various rights in France, cf. Tocqueville, The Old Regime and the Revolution, 326 ff. 2 See Sir J. M. Le Moine on " Tidbits of Feudal Customs in Canada," in his Alaple Leaves, 4th series, 99 ff. ^ Thwaites, Frattce in America, 132. * Hocquart to Minister, November 8, 1737, Correspondance Generale,vo\.\\v\i.^o^. 144 THE CORVEE AND OTHER EXACTIONS. cleanly.^ Their daily fare, while plain, was nourishing and always adequate. Lahontan, during his stay in the colony, was impressed by the rude comfort in which the population of the seigniories lived, and recorded his surprise at finding that " the boors of these manours live with more ease and conveniency than an infinity of the gentlemen in France." ^ Whatever criti- cisms may be passed upon the seigniorial system as the em- bodiment of an economic policy, it can scarcely be said with truth that in New France it ever permitted the seigniors to op- press or degrade the peasantry. 1 Kalm, Travels into North America {i']']2), ii. 241-242. Kalm visited New France in 1749. 2 Lahontan, New Voyages (ed. Thwaites), i. 35. CHAPTER VIII. SEIGNIORIAL JUSTICE. "Of all the phenomena of feudalism," writes Professor F. W. Maitland, "none seems more essential than seigniorial jus- tice ; " 1 and yet, as that distinguished student of institutional history has pointed out, disproportionate stress has usually been laid upon the military aspect of the seigniorial system to the consequent neglect of the judicial. The exercise of jurisdic- tion seems to be, above all else, the distinguishing mark of a seigniorial system of land tenure.^ During the earliest period of French operations in Canada, — that is to say, from the first establishment of a permanent settle- ment at Quebec by Champlain in 1608 down to the formation of the Company of One Hundred Associates in 1627, — the administration of justice was vested by the French crown in the hands of whoever happened to hold the nominal post of " viceroy and lieutenant-general of New France " ; and by each viceroy, in turn, it was deputed to Champlain. Although the sparseness of the population during this period might have seemed to ren- der the establishment of any regular tribunal unnecessary, Champlain, as we learn from his writings, found it advisable to promulgate various ordinances for the governance of his somewhat unruly settlers, and to expel those who failed to give obedience. Moreover, a few years later he established the first regular court of the colony, later known as the court of the Pr6- vote at Quebec,^ and modelled upon the court of similar name in France. As the early registers of this court have not come ^ Maitland, Domesday Book and Beyond (1897), 258. 2 On the administration of feudal justice in France, see Fustel de Coulanges on " La Justice dans la Societe Feodale," in Revue des Deux Mondes, xcii. 274-298 (March, 187 1). ^ On the composition and powers of this court, see Doutre and Lareau, Histoire Generate du Droit Civil Canadien, 15 ff. MS 146 SEIGNIORIAL JUSTICE. down to us, it is impossible to tell anything about the number or the character of the cases which came before it ; but it is certain that down to 1627 there was no exercise of seigniorial jurisdiction, for only three grants of seigniories had been made prior to that year, and none of these contained any concession of judicial power.^ During the supremacy of the Company of One Hundred Associates, from 1627 to 1663, the court of the Prevote con- tinued in existence ; but in 1647 a council, commonly known as the Old Council {Tancien conseil), was organized, consisting of the governor, the superior of the Jesuits in the colony, and some prominent colonists named by the former. From this time on, appeals might be carried from the court to the council ; but how far this appellate jurisdiction was exercised it is im- possible to tell, for, although the Old Council undoubtedly kept records of its proceedings, these have never been found.^ What is more important for our purpose, however, is the fact that during this period more than sixty seigniorial grants were made by the company, and in almost every instance judicial rights were given to the seigniors.^ In no case was the extent of judicial authority precisely defined; but in every grant pro- vision was made that appeals should lie from the seigniorial courts (whenever such should have been established) to the court of the Pr6v6te. It was in this interval, therefore, that the colonial hierarchy of courts first took on a definite form. It seems to have been intended that all cases should, in the first instance, come before the seigniorial courts, and that from them appeals should be carried to the court of the Prevote, from this to the Old Council, and from the council to the king. As a matter of fact, however, there was apparently, before 1663, no serious attempt to establish courts in the seigniories ; for many of those who received seigniorial grants never came out to the colony, and of the remainder only a few seem to have taken possession of their lands. ^ Cf. Titres des Seigneuries, 89, 343, 412. 2 It is highly probable that these registers were destroyed by the fire which burned the intendant's palace at Quebec in 1713. See Chauveau, N'otice sur la Pub- lication des Kegistres du Conseil Souverain de Quebec (1885), 61. 2 See above, ch. ii. SEIGNIORIAL JUSTICE. 1 47 It is not till after 1663 that one encounters definite evidence that seigniorial jurisdiction was being exercised. Most of those who received seigniories after that year were invested with judicial rights, and some began to exercise them. Not every colonial seignior, however, possessed the right of private juris- diction ; indeed, it cannot be too strongly emphasized that in Canada the possession of a seigniory was not ipso facto an evi- dence of private judicial authority,^ In France, as various writers have pointed out, property and jurisdiction were usually, during the feudal era, inseparable;^ although several of the coiitumes explicitly declare that judicial powers were not nec- essary incidents of the possession of a fief.^ In Canada, on the other hand, the possession of a seigniory did not in itself carry any jurisdiction : the latter could be obtained only by express grant. Judicial power, when given to the seignior, might be conveyed in one or more of three different degrees, — that is, the right of high, of low, or of middle jurisdiction {Jiaute, moyenne, ou basse justice) might be granted him. Usually all three degrees were given together; but grants of middle and low justice, or of low alone, were not uncommon.* It should be made clear that the degree of jurisdiction was not proportioned to the extent of the seigniory : in some of the smallest grants the widest degrees of judicial power were given, while in a few of the most extensive only the right of low jurisdiction was be- 1 A close examination of the seigniorial titles seems to confirm the statement of Garneau {^Histoire du Canada, i. 166) that a grant of jurisdiction "almost invari- ably " accompanied the grant of a seigniory. This is certainly much nearer the truth than the assertion of a recent writer (Douglas, Old France in the Netv World, 236) that " in some few cases " judicial powers were possessed by the seigniors of Canada. Among seigniories sans justice may be mentioned those of Gentilly, Vieux- pont, Jacques Cartier, Isle St. Joseph, Pointe du Lac, Boucher (adjoining Labadie), St. Michel, and St. Jean. See Titres des Seigneuries, 12, 85, 88, 103, 120, 344. 2 "The administration of justice both in the old and new fiefs, was a right in- herent in the very fief itself, — a lucrative right which constituted a part of it" (Mon- tesquieu, The Spirit of Laws, book xx. ch. 20). ^ " P'ief, ressort, et justice n'ont rien de commun ensemble." On this point, see Loisel, Institutes Coutuinieres, ii. 271; and Viollet, Ilistoiredu Droit Civil Fran(,uis, 646. * On the administration of seigniorial justice, cf. Doutre and Lareau, Ilistoire Cinerale du Droit Civil Canadien, 133 ff. 148 SEICmORIAL JUSTICE. stowed. In some cases the seigniorial grant was first made without any judicial rights whatever, these being given subse- quently on augmentation of the original grant. In a few instances the right of low jurisdiction only was conferred with the original concession ; then later, when the holding had been increased either by purchase or by additional grants from the crown, the rights of middle and high jurisdiction were added. All these cases, however, ought to be regarded as exceptional ; for in the great majority of seigniorial title-deeds the grants appear to have been made " in full property and seigniory, with the rights of high, middle, and low jurisdiction " {en toute propriete et seigneurie, avec les droits de haute, moyenne, et basse Justice). Seigniories appear to have been granted in these terms unless some special circumstance seemed to dictate a departure from the usual course ; but it is not easy to say what prompted the making of exceptions in isolated cases. The grant of the right of high jurisdiction {haute Justice) gave the seignior power to deal with all criminal cases, includ- ing those punished by death, mutilation, or other corporal penalty, with the exception only of such crimes as were deemed to be perpetrated directly against the royal person or property. These were such crimes as Ihe niajeste divijte et Jiuniaine, treason, counterfeiting the royal signature, seal, or coinage, unlawfully bearing arms, or taking part in seditious enterprises or assemblies. In civil cases the authority of the seignior possessing this degree of jurisdiction was without limit. He had power to fine or imprison, to award damages, to order amendes honorables to be made by his habitants to himself or to one another, to banish obnoxious persons from his seign- iory, to order the retention in stocks or even the branding of incorrigibles, and to publish all such regulations for the gover- nance of the habitants as were not inconsistent with the Custom of Paris and the laws of the colony. When his habitants were convicted of offences which legally entailed confiscation of property, whether real or personal, he had the right to seize and appropriate it ; but in the case of confiscations ordered by the royal courts for offences against the crown, the forfeited property went to the crown and not to the seignior within SEIGNIORIAL JUSTICE. 149 whose domain it lay. This rule was in full accord with the well-known feudal maxim that " he who condemns the person confiscates the property " {jjid confisqiie le corps conjisque les biens). To the seignior with powers of high jurisdiction appertained also the possession of all stray cattle and other animals found within the limits of his seigniory. On finding such estray, a habitant was under obligation to deliver it to the seignior within twenty-four hours, on pain of fine ; but the seignior, on his part, was obliged to make public proclamation at the door of the parish church for three consecutive Sundays, announcing that he held such an estray. If, within the space of forty days from the date of the first publication, the rightful claimant did not appear and " pay all lawful costs and expenses, " the ani- mal became the property of the seignior in his capacity of high justiciary of the seigniory, and this without any compen- sation to the finder. To the seignior with high judicial powers reverted also the ownership of all e7i censive lands and all lands en arrihe-fief left without lawful heirs, as well as of all such lands as did not continue to be held in strict accordance with the terms of the original grant. He was likewise entitled to all flotsam and jetsam found in the waters of the seigniory or washed ashore, all treasure trove, and all bona vacantia. In the case of treas- ure trove, however, one-half went to the actual finder if the treasure was discovered by him within the limits of his own grant ; if it was found by one habitant on the land of another, the finder received one-third, the owner of the land one-third, and the seignior the remaining third ; if it was found on the land of the seignior, the finder was rewarded with one-third of the value, and the seignior took the rest. Furthermore, as has been pointed out, ^ the seignior, by virtue of his possession of high jurisdiction, claimed control over all unnavigable streams and waters within his seigniory, together with the exclusive right of establishing ferries across the same. In theory, at least, the grant of high jurisdiction conveyed very extensive judicial rights upon those seigniors who obtained it. ^ Above, p. 142. 150 SEIGNIORIAL JUSTICE. The seignior whose jurisdiction was limited to a grant of moy- en7ie justice had authority to take cognizance of all civil actions in which the amount in dispute did not exceed sixty sols pavisis} and of all criminal causes in which the awardable penalty did not exceed the same sum. If the amount in dispute in a civil cause exceeded sixty sols, or if the offence were one demanding a punishment more severe than the imposition of a fine of this amount, the whole matter was handed over to the jurisdiction of the nearest royal court. The seignior with rights of middle juris- diction had authority to order the arrest of an offender; but he was under obligation to give such person a hearing within twenty- four hours after his arrest, and at this hearing he was to decide whether or not he had jurisdiction. Since, however, there was no habeas corpus procedure in the colony, or anything correspond- ing to it, there was no security for the enforcement of this rule in behalf of a prisoner. It is, of course, true that the friends of an offender held in custody without a hearing might make appeal to the council at Quebec ; but from this body redress could be had only after an investigation of the case, and this took some time. If the seignior deemed an offence worthy of more severe punishment than he was empowered to inflict, and sent the case before a royal court, he was entitled to be reimbursed for the costs of the arrest and transport of the prisoner, and to be paid sixty sols parisis out of the fine imposed by the royal court. The seignior possessing the rights of middle jurisdiction had power to appoint tutors or curators for minors or persons 7io}t compos me?itis, to determine the compensation to be paid them, and, in general, to supervise the property of all dependents in guardianship. He also had authority to decide disputed ques- tions of measurement and acreage (faire viesiirer et arpenter\ and to determine the boundaries (bornage) of lands within his seigniory. The few seigniors who possessed the rights of low jurisdic- tion only could take cognizance of disputed matters in which the amount at issue did not exceed sixty sols, and in criminal cases could award a penalty not exceeding ten sols. The pos- 1 That is, in money of France (see above, p. 92). SEIGmORTAL JUSTICE. 151 session of this degree of jurisdiction merely gave the seignior power to settle trivial disputes between the habitants, or between himself and his dependents, regarding the amount of seigniorial dues. He was bound by the rule regarding immediate hearings for prisoners ; when he sent a case before a royal court he was reimbursed for his necessary costs, and, if a fine was im- posed, he received ten sols as his share.^ These distinctions in degree of jurisdiction were of little or no importance in Canada, for the reason that in the great ma- jority of cases the seignior who had jurisdiction at all had it in all three degrees. Every seignior possessing judicial power was supposed, before beginning to exercise it, to provide a court- room iaiiditoire) in or adjoining his manor-house, together with a prison " on the ground flour and in a dry place." He was also under obligation to provide the necessary court officials (a bailiff, a court clerk, and a crier), and, when he did not pre- side in person, to appoint a seigniorial justice.^ As a matter of fact, however, those Canadian seigniors who exercised their ju- dicial rights did not provide any special court-room, but used the living room of the manor-house for the purpose ; and in a very few cases only did they provide prisons. In some of the larger seigniories court officials were named by the seignior, and were paid small compensations whenever there was work to be done ; and in a few seigniories regular seigniorial justices were ap- pointed, as may be seen from the wording of decrees ordering such officials to hold sessions at frequent intervals, not to take fees from claimants before them, and so on.^ After the conquest, Governor Carleton declared that under the French rule no seigniorial justice could be appointed without the approval of the royal authorities.^ In the records of the Superior Council will be found a few instances in which the appointment of a seigniorial justice was thus confirmed, but it does not appear that such confirmation was regarded as indispensable.^ If the sanction of the council was given to all seigniorial judicial ^ The precise limits of the three degrees of jurisdiction are very clearly set forth in Doutre and Lareau, Histoire Generale du Droit Civil Canadien, 1 33-1 36. 2 Ibid. 135. 8 Edits et Ordonnances, iii. 118. * See below, p. 157. ^ Edits et Ordonnances, ii. 23, 566. 152 SEIGNIORIAL JUSTICE. appointments, some of these confirmations cannot have been recorded; for the number of seigniorial justices was certainly- more than the number of recorded confirmations.-^ Still, the total number of seigniors who appointed judges was comparatively small ; in most cases in which jurisdiction was exercised the seignior appears to have performed the work himself. In such instances seigniorial justice was administered in rough-and-ready fashion, with little regard for the formalities of the law : the average Canadian seignior might as well have been asked to administer the Twelve Tables as to follow the Custom of Paris in his decisions. Ordinarily the disputants or offenders were called by the seignior to the manor-house, where, after a proceeding which partook more of the nature of a conference than a trial, some satisfactory settlement was usu- ally effected. Most of the matters which came before the seigniors in their judicial capacity were concerned with disputes about boundaries of lands or seigniorial dues, with petty squabbles between the habitants, or, frequently, with the division of per- sonal property among heirs. The seigniors very rarely under- took to exercise their powers of high jurisdiction : civil and criminal cases of any importance were almost invariably left to the royal tribunals to be dealt with by them ab initio. Al- though scores of Canadian seigniors had legal power to impose even the death penalty, there is no record that such sentence was ever pronounced in a seigniorial court. The reasons for the failure of most seigniors to exercise their judicial powers to any very important degree are not difficult to find. In France seigniorial jurisdiction was a source of substantial profit ; there, according to various writers, the profits of seigniorial jurisdiction amounted to from one-twentieth to one-tenth of the gross revenue of the seigniory .^ In Canada, on the contrary, owing to the sparseness of the population very little profit could be hoped for by the seignior from fines, fees, and other incidents of jurisdiction. If any seignior had undertaken to provide himself with the full paraphernalia of jurisdiction, — ^ Cugnet ( Traite de la Loi des Fiefs, 53) states that the judges of the royal courts had the right to inspect all seigniorial courts within their districts. 2 Tocqueville, The Old Regime and the Revolution, 341. SEIGNIORIAL JUSTICE. 1 53 a court-room, jail, officials, and so on, — he would certainly have found himself exercising jurisdiction at a loss. It was not that the people were disinclined to litigation ; on the contrary, a chronic disposition toward litigiousness was one of the most marked characteristics of the Canadian habitant. The Norman colonist seems to have been naturally quarrelsome,^ and the long winters afforded him plenty of leisure to indulge in his com- bative proclivities.^ Moreover, the loose way in which land boundaries were delimited, and the somewhat indefinite status of many seigniorial obligations, gave the habitant favorable opportunities for squabbling both with his neighbor and with his lord.^ Talon, in 1667, roundly rebuked the population of New France for their lack of harmony and their disposition to invoke the aid of the higher authorities in the settlement of trivial questions at issue, and strongly urged them to settle dif- ferences of opinion among themselves and in friendly fashion.* As most of these difficulties were of such nature that their settlement cost the seigniors a good deal of time and patience without affording any tangible profit in return, it is no wonder that the seigniorial judicial powers were so seldom exercised. Another reason for the infrequent use of the power may be found in the fact that the decision of a seigniorial court was in no case final. When a grant of jurisdiction was made to a seignior, it was accompanied by the provision that in all cases appeal to the royal courts of the colony should be allowed. Be- fore the establishment of the royal courts, appeals went directly to the council at Quebec ; but when, in course of time, royal district courts were established at Quebec, Montreal, and Three Rivers, each in charge of a royal justice, appeals were first taken to these, then to the intendant and council, and finally to the king. From the time the colony was taken under the direct ^ As one writer aptly expresses it, the Norman settler had "beaucoup de chaleur dans la discussion des interets privees, et de calme dans celle des interets publics " (Bouchette, Britisk Dominions in North America, i. 414, note). 2 Gaspe {Les Anciens Canadiens) gives some interesting portrayals of French- Canadian life in the eighteenth century. ^ See above, p. 40. * Edits et Ordonnances, ii. 30. 154 SEIGNIORIAL JUSTICE. control of the crown, the royal intention seems to have been to create a hierarchy of courts, — the seigniorial courts to admin- ister justice in the first instance, and the royal courts to be primarily courts of appeal. " It is our will," declares a royal edict of 1667, " that an appeal shall lie from the seigniorial juris- dictions which are within the limits of our Prevote at Quebec, to the said Prevote, and from the said Prevote to our said council at Quebec, which we prohibit from receiving any immediate appeal from the said seigniorial jurisdictions . . . and with re- spect to the other seigniorial jurisdictions which are not within the limits of the said Prevote of Quebec, the appeals from them shall be brought immediately before the said council until such time as we shall have established other royal jurisdictions." ^ In accordance with this poHcy, it was ordained in the decree which established a royal court at Three Rivers in 1680 that appeals should no longer be taken from the seigniorial courts in that district to the council at Quebec, but to the newly estab- lished royal court, from which, of course, the issue might be further carried to the council.^ The establishment of the royal courts gave many of the neigh- boring seigniors an excuse for discontinuing their own jurisdiction. When the royal court was first set up at Montreal, the seigniors of the island at once prayed to be relieved of the right of exercis- ing high and middle jurisdiction, but to be allowed the right of low jurisdiction in order that they might on occasion be able to enforce the payment of dues within their seigniories. An ordi- nance depriving them of the two higher degrees of jurisdiction and confirming them in the enjoyment of the lowest one was ac- cordingly issued.^ Some time earlier the jurisdiction of the Jesu- its in their seigniories at Sillery and Three Rivers had, at their own request, been suppressed by a decree of the Superior Coun- cil, which ordered that cases arising in the first-named seigniory should be taken in the first instance before the royal court at Quebec and those in the latter seigniory before the royal court at Three Rivers.* 1 Edits et Ordonnances, i. 237, § viii. 2 JUd, 242. 8 Ibid. 342-346 (July, 1 7 14). * Ibid. iii. 152-153 (October 24, 1707). SEIGNIORIAL JUSTICE. 1 5 5 Feudal jurisdiction has generally been looked upon as a usur- pation by seigniors of a sovereign function, as the logical result of a weak central power. In France the origin of private justice was, in the earlier stages of feudal development, undoubtedly connected with the weakness of the monarchy ; but in Canada we see a strong central power — the strongest perhaps that ever exerted its strength in the New World — endeavoring to estab- lish a system of private jurisdiction, to decentralize the admin- istration of justice, and to force the seigniors to assume judicial functions which most of them wished to discard. Obviously the explanation is that, with the preservation of the right of appeal in every case to the royal courts, the central authority had no reason to fear the development of undue power by those who exercised jurisdiction in the first instance. As Parkman has very aptly remarked, " Louis XIV liked the feudal system, but only with its teeth drawn." ^ Although the records of cases heard in the various seigniorial courts have not been preserved, it would seem that the vast majority of cases were brought in the first instance either before the royal courts at Quebec, Three Rivers, or Montreal, or before the council at Quebec; for one finds in the registers of these courts a formidable collection of judgments dealing with all sorts of cases, from the most important to the most trivial.^ The seigniorial courts seem to have limited their jurisdiction, for the most part, to cases concerning the seigniorial dues and obligations ; and it is remarkable how comparatively few were the appeals from these judgments of the seigniors to the royal courts. The seignior, it is true, knew very little about law or procedure ; but he knew his suitors, and his disposition of the cases which came before him was usually a satisfactory one. In some of the seigniorial courts there were, naturally enough, just causes of complaint, and even abuses ; but these the authori- ties did not hesitate to correct when their attention was drawn to them. To this end, various decrees dealing with the seign- ^ Parkman, The Old Regime in Canada, Introduction. 2 Some of these are printed in Perrault, Exiraits ou Precedents tires des Registres ■de la Prevoste de Quebec, 156 SEIGNIORIAL JUSTICE. iorial courts were issued from time to time. Thus, in 1664, on the representation of the attorney-general that certain abuses existed in the seigniorial courts,^ decrees were issued by the council prohibiting " all inferior judges from taking any pay- ment or fees from parties to a suit under pain of being treated as extortioners, saving, however, the right of these officials to receive salaries from those who have named them to their posi- tions," and prohibiting them also "from exercising any jurisdic- tion until they shall have taken the oath which is required to be taken by the royal judges in their jurisdiction." This ordinance provided further that persons complaining of excessive costs levied in a seigniorial court might appeal to the royal courts to have these reduced.^ Again, in 1678 an edict was promulgated fixing definitely the amount of charges which might be exacted by judicial officials for any service.^ Moreover, in several cases the intendant intervened to secure the more prompt and effective administration of justice in the seigniorial courts. In 1705, for example, Raudot issued a decree in which, after declaring that according to his information the seigniorial justices of Batiscan and Champlain held hearings only once each month and compelled the habitants, when they wanted special hearings between times, to pay for the same, he ordered these judges to hold court at least once every week (in Batiscan on Wednesdays and in Champlain on Saturdays), and forbade the practice of exacting charges for special sessions.^ This is only one of the numerous similar interventions that might be instanced. On the whole, the administration of justice in both the seign- iorial and the royal courts seems to have been carried on with promptness, impartiality, and economy. The difference in this respect between conditions in Old and New France attracted the attention of Lahontan, who commented upon it in his usual facetious vein. " I will not say," he wrote, " that the Goddess 1 The attorney-general had general supervision over the judicial administration of the colony. The position was at this time held by Jean Bourdon, who had been ap- pointed to the post on the recommendation of Bishop Laval. See Gosselin, Jean Bourdon (Quebec, 1904), ch. xiii. 2 Edits et Ordonnances, ii. 22 ff. 8 Ibid. i. 99 ff. * Ibid. iii. 118. SEIGNIORIAL JUSTICE. 1 5 7 of Justice is more chaste and impartial here than in France, but at any rate, if she is sold, she is sold more cheaply. In Canada we do not pass through the clutches of advocates, the talons of attorneys, and the claws of clerks. These vermin do not infest Canada yet. Everybody pleads his own cause. Our Themis is prompt, and she does not bristle with fees, costs, and charges." ^ This is, in truth, very modest praise ; but such evidence as may be drawn from the comments of other contemporary writers seems to indicate that maladministration of justice was never an important ground of complaint by the people. No one can read the numerous judgments of the intendants without being impressed with the apparently earnest desire of these officials to be fair to all parties concerned ; and the frequency with which their intervention seems to have been sought by seign- iors and habitants alike bespeaks a confidence in their impartiality. It is, of course, true that possibilities of injustice lay in the system of private jurisdiction ; but these do not appear to have been reahzed. This point was very well stated by Governor Guy Carleton in one of his despatches to the British authorities. " Some of the privileges contained in the seigniorial grants," he wrote, " appear to convey dangerous powers into the hands of the seigniors, but upon a more minute enquiry these are found to be really little less than ideal. The haute, moyeiine, et basse justice are terms of high import, but even under the French government were so corrected as to prove of little significance to the proprietors; for besides that they could appoint no judge without the approbation of the government, there lay an appeal from all the private to the royal jurisdictions in every matter exceeding half a crown. It could not therefore be productive of abuse, and as the keeping of their own judges became much too burthensome for the scanty incomes of the Canadian seigniors, it was grown into so general a disuse that there were hardly three of them in the whole province at the time of the conquest."^ ^ Lahontan, Nouveatix Voyages (1705), i. 21, cited by Parkman, The Old Regime in Canada, ii. 68. 2 Carleton to Shelburne, April 12, 1768, in State Paper Office, America and West Indies, vol. cccxxvi, No. 33. 158 SEIGNIORIAL JUSTICE. Almost precisely the same view is expressed by Garneau. " All the seigniories with very few exceptions," he writes, " pos- sessed the redoubtable right of high, mean, and low jurisdiction which was acquired by express grant from the king. This was in America an anachronism at once of time and place. The seigniorial judges and the officers of their courts were obliged to obtain for themselves the sanction of the royal authorities, to whom, moreover, they were obliged to make oath that they would fulfil their duties faithfully and well. But in addition to this there were added other shackles, with the result that scarcely a seignior could be found desirous of exercising his privileges." ^ The policy of permitting private jurisdiction to be exercised in the colony did not commend itself to the new British authori- ties ; hence, while they were not unwilling to perpetuate the French system of civil law, they gave no consideration to the advisability of permitting even the theory of seigniorial judicial authority to remain. During the period of military rule (1760- 1764), all cases were brought in the first instance before the military courts which were established in different parts of the colony.^ When military rule gave place to a system of civil government, one of the early acts of the new administration was to establish a new system of courts in which no provision for the exercise of any private jurisdiction was made.^ The judi- cial prerogatives of the seigniors were in this way quietly elimi- nated. No compensation seems to have been claimed by them, and none was granted. The attempt of the French crown to establish a system of private justice in New France had failed signally ; and the chief cause of failure seems to be found in the simple fact that private jurisdiction could not, except in a very few cases, be made to pay its way. 1 Garneau, Histoire du Canada, i. 173-174. Garneau declares (^Ilid. 174) that the king forbade the granting of seigniories avec justice after 1714; but I have found no trace of any such prohibition. At any rate, seigniories continued to be granted with judicial powers after that date, and these grants were readily ratified by the crown. "^ Suite, Le Regime Militaire, ijbo-iyb^, in Royal Society of Canada, Proceedings, 1905, Appendix A. ^ Order in council of September 17, 1764, Ordinances made for the Province of Quebec by the Governor-in-Council of the said Province since the Establishtnent of the Civil Government (1767), 9-10. CHAPTER IX. THE SEIGNIORIAL NOBLESSE. The three foregoing chapters have been devoted to a descrip- tion of the various rights through the exercise of which the seigniors might hope to derive some emolument. Some of these rights, like the cens et rentes and the lods et ventes, were substantial and lucrative ; others, like the banalities and the judicial powers, afforded little profit except under the most favorable circumstances. In every case the amount of emolu- ment derived depended upon the stage of development which the seigniory had attained ; and this was gauged very accu- rately by the population within its limits. The Canadian seignior, however, like his prototype in France, possessed a number of privileges of a purely honorary nature, which gave him some prestige but no profit whatever. On the contrary, they were frequently a source of expense to him ; for they made it necessary that he should maintain a correspond- ing dignity, which was, unfortunately, quite often beyond his means. Some of these honorary privileges he had as seignior, others because he had either inherited rank in the noblesse or received it as the reward of a successful administration and development of his seigniory. Among the honorary privileges possessed by the seignior as seignior, was the right to receive the fealty and homage of each of his habitants upon the occasion of the latter's first entry upon his holding and at every subsequent mutation of owner- ship. The ceremony took place at the manor-house, and was similar to that performed by the seignior himself to the repre- sentative of the crown at Quebec.^ Again, on the first day of 1 When the inhabitants failed to render their fealty and homage, the seignior could obtain an ordinance compelling them to perform this ceremony (see Edits et Ordonnances, ii. 595). An excellent description of the ceremony is given in William Kirby's Chien d^Or. See also above, pp. 56-57. l6o THE SEIGNIORIAL NOBLESSE. May, the habitants were bound to appear before the seigniorial manor-house and plant a May-pole near the door. The occasion was made a gala day by them, and especially by the younger folks, who gathered in holiday attire and spent the day in dancing and games, while the seignior showed his appreciation of the honor by a liberal dispensation of refreshments.^ It seems hardly possible that the habitants could have looked upon this exaction as a burden ; and yet on at least one occasion they petitioned the intendant for the discharge of the obligation, and with the consent of the seignior were relieved from further performance of it.^ In virtue of his position, moreover, the seignior was entitled to a certain precedence and honor in the religious services of the parish. As there seemed to be some difference of opinion be- tween the seigniors and the cures as to what honorary rights pertained to the former, a decree of the council, issued in 1709, endeavored to make the matter clear. This edict provided that the only seignior entitled to honors in any parish church should be the one in whose territory the church was erected. For his use a special pew was to be prepared " in the most honorable place," that is to say, on the right side of the church and at a distance of four feet from the altar railing {bahistre) ; this pew, as the decree went on to provide with an elaboration of detail, was to be of the same length as those used by the ordinary lay- men, and was not to be more than double the depth. The seignior was in all cases to be the first layman to approach the sacred bread at the Eucharist, and in his absence this honor was to be accorded to any of his children over the age of sixteen. At the special religious fetes he was to be the first to approach the altar to receive the tokens of the day, as, for example, the ashes on Ash Wednesday or the palms on Palm Sunday ; and in all rehgious processions he was to take place immediately after the cure. On his decease his remains might be interred beneath the church, and even the determination of the exact spot of burial was provided for by the edict. The honors and privileges to be 1 An interesting description of the May-pole ceremony is given by Gaspe in his Les Anciens Canadietis, ch. xvii. ^ Edits et Ordonnances, iii. 132. THE SEIGISriORTAL NOBLESSE. i6l accorded to the wife and children of a seignior were also mi- nutely specified, to the end that no future misunderstandings might arise.^ Finally, the seignior was entitled to the general deference and respect of his dependents, who were supposed to salute him re- spectfully on meeting him, to give his vehicle the right of way, to remain standing when in his presence unless requested to sit, and in general to treat him with that polished deference which the men of the old regime were wont to yield to their social supe- riors. Naturally enough, matters of this sort were closely related to the wealth and personal dignity of the individual seignior; and in Canada these qualities were frequently lacking. Too often the seignior was as poor as the average habitant; not infrequently he was a man of toil, striving hard to make both ends meet, liv- ing a life little removed from that of his habitants, and attaching very little dignity to his office or position. Although it has been the custom of some writers to use the terms " seigniors " and " noblesse " interchangeably ,2 it should be emphasized at this point that not all the Canadian seigniors were members of the aristocracy. In speaking of France it is approximately correct to say that a seignior was always a mem- ber of the noblesse, but in speaking of Canada this use of the terms is clearly misleading. The possession of a fief, or seign- iory, in New France gave no noble status whatever : the com- moner who received a colonial fief remained a commoner. Some seigniors, it is true, received rank in the noblesse, but in every case by special letters patent from the crown and never as an incident of their tenure. From the beginning, the French government apparently in- tended to estabhsh in the colony some prototype of the no- blesse at home. La Roche, it will be remembered, was in 1598 authorized to create " chatellenies, earldoms, viscountships, baronies, and other dignities," and the Company of One Hun- dred Associates numbered among its multitude of semi-sovereign privileges that of granting " such titles and honors ... as the ^ Edits et Ordonnattces, ii. 1 54-156. " Eg., Coffin, The Province of Quebec and the Early American Revobciion, ch. i; Thwaites, Erance in America, 133. 1 62 THE SEIGNIORIAL NOBLESSE. Associates may deem proper" ; ^ but neither La Roche nor the company seems to have exercised any of these rights. Patents conferring rank m the noblesse were issued directly by the crown, though most of them, it is true, came to the colony as the result of recommendations made to the king or the minis- ter by the colonial authorities. As such patents of nobility were never granted in Canada except to the owners of seignior- ies, it will be seen that, while the Canadian seignior was by no means always a noble, the Canadian noble was always a seignior.^ In France just the reverse was true. Although the noblesse of New France was never a very numerous body, it included representatives of almost every rank, foremost among whom were the two counts, Jean Talon, Comte d'Orsainville, and Francois Berthelot, Comte de St. Laurent. Talon, the first active intendant of New France, came to the colony in September, 1665,^ at the beginning of a considerable movement of immigration to the domains of France in the New World. As he was under instructions to take special interest in the reception and settlement of the incoming colonists, he at once proceeded to act upon the suggestion of the minister that he should have a substantial area of land cleared each year in order that settlers might be set to the work of cultivation as soon as they arrived.* A few weeks after his arrival at Quebec, Talon decided to establish three villages, and chose as locations certain lands in the seigniory of Notre Dame des Anges, on the north shore of the St. Lawrence just below Quebec. This seigniory had some years previously (1626) been granted to the Jesuits, who now protested against the intendant's plan.^ Talon pointed out to them, however, that, in the forty years during which the seigniory had been in Jesuit hands, only a small part of it had been settled ; and he further called their attention to the decree of 1663, which provided for the retrench- ment to the crown of all seigniorial grants that had been left 1 See above, ch. ii. 2 There were, of course, several members of the French noblesse who served in Canada as officers of the forces, and who were not seigniors. 2 Chapais, yi?a« Talon, 62. * Ibid. 92. ^ Titres des Seigneuries, 53. A copy of the Jesuit protest, together with the in- tendant's reply, is printed in Chapais,y^a« Talon, Appendix. THE SEIGNIORIAL NOBLESSE. 163 uncleared and uncultivated.^ The villages were therefore laid out, the lands cleared, and as settlers arrived locations were given to many of them, titles being issued in the name of the king. The three villages, to which Talon gave the names of Bourg-Royal, Bourg-la-Reine, and Bourg Talon, soon had small but thriving populations ; for these settlers were more fortunate than most of those who came to New France, in that they received lands already cleared and sometimes already placed under seed.'*^ Talon's work did not end with this project, however. During the years 1 667-1 668 he purchased for himself large tracts of land lying along the St. Charles River, built a house and barns thereon, and proceeded to spend considerable sums from his own private means in improving his property. The example of the intendant was not lost upon the seigniors of the colony, many of whom seem to have been spurred to new effort in the improvement of their holdings.^ In 1668 Talon went home to France, where he remained until 1670; but during his absence the work of improving his property went on apace. Soon after his return to the colony, he wrote to the minister describing the progress made both in his villages and on the lands which he had purchased, and took occasion to suggest that the king might be pleased to grant him some title of honor, in order that such a recognition of his enterprise might " fill the officers and richer seigniors with a new zeal for the settlement of their lands in the hope of being recompensed with titles as well."* This request was readily granted, and in 1671 Talon received letters patent consohdating his properties and the three royal ^ Edits et Ordonnances, i. 33. 2 " On [les] a formes aux environs de Quebec, tant pour le fortifier, en peuplant son voisinage, que pour y recevoir les families venues de France, et auxquelles on distribue des terres deja mises en culture, et dont quelques-unes ont ete cette annee chargees de ble, pour faire le premier fonds de leur subsistance" (^Relation of 1667, in Thwaites, Jesuit Relations and Allied Documents, 1. 244) . 2 The census of 1667 gave the area of cultivated lands as 11,448 arpents ; that of 1668 placed it at 15,642 {Censuses of Canada, 1665-1871, pp. 7-8). The Relation of 1668 speaks in a very hopeful strain of the new activity shown on all sides (Thwaites, Jesuit Relations, li. 170). * Talon to Colbert, November 10, 1670, Correspondance Gencrale, iii. 76. 1 64 THE SEIGNIORIAL NOBLESSE. villages which he had founded into one fief, the whole to have the "title and dignity of a barony." To this new barony was given the name Des Islets.^ This patent gave Talon authority "to call, name, and style himself Baron des Islets in all acts whether judicial or other- wise, and in that quality to enjoy all the honors, armorial bearings, prerogatives, rank, and precedence, as well at war as at meetings of the nobility or otherwise, in the same manner as the barons of our kingdom"; and it commanded "that all ten- ants, men, and vassals of the said lands" should "acknowledge him as baron, and in such quality render him their fealty and homage." It gave him the right to " estabhsh gaols, a four- post gibbet in such place as he may think fit within the said barony, and a post with an iron collar on which his arms shall be engraved " ; and as a special mark of the royal favor it expressly waived the right of the king to escheat the barony in default of legitimate male heirs. Less than two years after his elevation Talon went home to France, having asked for and received his demission from office ;2 but in 1675 he was honored by the issue of a further patent "creating, erecting, and elevating" the barony Des Islets into " the title, name, quahty, and dignity of a countship, which shall hereafter be called the countship of Orsainville." To the new Comte d'Orsainville was given, " for himself, his heirs, successors, and assigns, as well male as female," all the "honors, rights, rank, and precedence belonging to the dignity of a count, al- though not here specifically detailed"; and the people of the countship were assured that they should not, by reason of the new dignity conferred upon their seigniorial lord, be subjected to " any greater duties than those which they at present owe."^ Although Talon never returned to Canada, his zeal for the in- terests of the colony in general, and for the improvement of his own countship in particular, did not flag. Down to the date of his death in 1694 his watchful care and interest continued; and on more than one occasion he was called by the minister into 1 Titres des Seigneuries, 348 ; see also Jiigements et Deliberations du Conseil Souverain de la Noiivelle-France, i. 692. 2 Chapais, Jean Talon, 454. 3 Titres des Seigtieuries, 348. THE SEIGNIORIAL NOBLESSE. 165 consultation concerning matters of policy in New France.^ By his last will and testament he bequeathed the countship of Or- sainville to his nephew Jean Francois Talon,^ who in 1696 sold the estate to Mgr. de St. Vallier, bishop of Quebec. Bishop St. Vallier gave the property to the General Hospital (which he had founded at Quebec) as part of the endowment of that institu- tion, upon condition that it should never be alienated. Two years later, however, an arrangement was made between the authorities of the General Hospital and the Jesuits, whereby the bourgs Royal and La Reine were reunited to the Jesuit seign- iory of Notre Dame des Anges, after having been separated for thirty-two years. ^ The remaining lands, with the exception of a part which in 1896 was handed over to the city of Quebec and now forms Victoria Park, still remain the property of the Gen- eral Hospital. Throughout the old regime in Canada, France found herself served by no inconsiderable number of earnest and public-spirited sons, who gave unsparingly of their vigor and means to the carrying out of the royal projects, often with scant hope of ultimate reward ; but on this roll of gifted and energetic Frenchmen who gave some of the best years of their lives to the stupendous task of creating a Bourbon empire beyond the seas, there is no name more honored or more worthy of honor than that of Jean Talon, Comte d'Orsainville. The only other countship in Canada, that of St. Laurent, comprised the island of Orleans, just below Quebec. This island had originally been granted to the Jesuits; but in 1675 Laval exchanged it for Isle Jesus, at Montreal, the seigniory of Frangois Berthelot, who is described in his title as " notre con- seiller et secretaire general de I'artillerie, poudres, et salpestres de France." In the year following the exchange, and appar- ently in connection with it, the island of Orleans was made a countship and Berthelot became the Comte de St. Laurent.* ^ Regis Roy, Les Intendants de la Notivelle- France, in Royal Society of Canada, Proceedings, 1903, Mhnoires, sec. i. 69-73. 2 Further details regarding the life and work of Talon are to be found in Chapais's Jean Talon, the appendices to which contain many interesting and hitherto unpub- lished documents. ^ Chapais, y>a« Talon, 494-500. * Dunkin, Address at the Bar of the Legislative Assembly of Canada, Appendix, 1 66 THE SEIGNIORIAL NOBLESSE. Of baronies, five in all seem to have been created, — four in Canada and one in Acadia. The first of these, that of Cap Tourmente near Quebec, was given to Guillaume de Caen in 1624 " in consideration of the great dangers, risks, and hard- ships " which he had incurred in beginning a settlement in New France.^ As Caen had important commercial interests in the colony, great things were expected of him ; but, when the Company of One Hundred Associates came into possession of the colony some half-dozen years later, it was found that a small clearing at the head of the cape marked the limits of the baron's agricultural achievements. This circumstance, with the fact that Caen was a Huguenot, led Richelieu's company to secure a revocation of his grant and title ; but some years later (1640) the French king recouped him by the grant of a barony in the West Indies. The second baronial grant in point of time was made in 1653 to the Sieur Philippe Mius d'Entremont in Acadia. In 165 1 Entremont, a French gentleman of Norman birth, came out to Acadia with Charles de Saint-Etienne de la Tour, and two years later was given the fief and barony of Pobomcoup. This grant was made by La Tour in his capacity of lieu- tenant-general of Acadia.2 The third barony was that al- ready mentioned as having been created for Jean Talon in 1671.^ The fourth barony, that of Portneuf, was erected by letters patent from the king in 168 1. The seigniory of Portneuf was originally the property of Jacques Leneuf de la Poterie, who received it from the Company of One Hundred Associates No. 148. Two years before the exchange was made, Talon had brought to the notice of the king Berthelot's services in the development of Isle Jesus, and had forwarded therewith a request that the fief be made a barony (Talon to Minister, March 9, 1673, Correspondaitce Generale, iv. 94). The population of the countship of St. Laurent is given in the census of 1681 as 1,082 (^Censuses of Canada, 1665-1871, p. II). 1 Moreau de St. Mery, Lois et Constitutions des Colonies Fran^aises de VAmeriqtie, 1. 48 ff. 2 The barony of Pobomcoup lay north of Cape Sable, at the southern point of the Acadian peninsula. The name has now been corrupted to " Pubnico." A copy of the patent creating the barony is printed in Rameau de Saint-Pere, Une Colonie Feodale en Amerique (1889), 412-413. 2 See above, p. 164. THE SEIGNIORIAL NOBLESSE. 167 in 1636.^ In 1671 Jacques Leneuf gave the seigniory to his daughter, Marie-Anne, who had, in 1652, married Rene Robi- neau, sometime seignior of Becancour.^ Robineau proved him- self a very progressive seignior. During the years following the establishment of toyal government he was so prominent a figure in New France that in 1681 the king recognized his services by elevating the seigniory to the " title and dignity of a barony, " and Robineau became Baron de Portneuf.^ One of his sons, who had taken possession of his father's former seigniory of Becancour, is sometimes referred to as Baron de Becancour ; but this appellation is entirely unwarranted, as Becancour was never made a barony.^ Perhaps the most interesting of all the baronial grants is the last in point of creation, that of Longueuil. About 1654 Charles Lemoyne, the son of a Dieppe innkeeper, arrived in Canada and took up his abode in Montreal, where on more than one occa- sion he rendered yeoman's service in the operations against the Indians. Some years later he received a seigniorial grant (which he called Longueuil) on the south shore of the St. Lawrence almost opposite the island of Montreal; and in 1668, in recog- nition of his services, he was rewarded by the king with rank in the noblesse of France. He died in 1685. Charles Lemoyne had eleven sturdy sons, ten of whom became prominent figures in the history of Canada during the French period. The eldest, Charles, after inheriting the seign- iory, took a prominent part in the repulse of Phipps at Quebec in 1690. Having purchased considerable land contiguous to his seigniory, he had by the close of the seventeenth century be- come one of the most extensive lay landholders in the colony ; and since his holdings yielded him substantial profits he soon became opulent for a colonial seignior, as was shown by his erection of a pretentious stone castle flanked by four imposing towers.^ Lemoyne de Longueuil also erected a well-equipped 1 See below, p. 170. The family of Leneuf de la Poterie must not be confused with that of Bacqueville de la Potherie, the historian. "^ Tanguay, Dictionnaire Genealogique, i. 523. ^ The patent is printed in Gatien, Histoire de la Paroisse du Cap-Sante, 367 ff. * Suite, Histoire des Canadiens-Fran^ais, v. io6. ^ See above, p. 66. The original building was gutted by fire in 1782 ; but a part l68 THE SEIGNIORIAL NOBLESSE. seigniorial mill, built good roads throughout his seigniory, and in general made it a model seigniorial property.^ As usual, such enterprise won the appreciation of the French monarch, who, in 1 700, consolidated the seignior's extensive holdings into the barony of Longueuil, mentioning in the patent of creation the very notable services rendered by various members of the Lemoyne family in the colony .^ Of all the titles of honor granted by the French crown in Canada, that of the Baron de Longueuil is the only one now included in the British peerage. After the conquest of Canada the descendants of Charles Lemoyne maintained that the cession of the colony to Great Britain did not invalidate titles pre- viously conferred; and they therefore assumed the title of Baron de Longueuil according as they were entitled to it in the order of succession under the old French rule.^ In 1880 of it, including the west tower, remained standing as late as 1885, when it was torn down to make room for the new parish church of Longueuil. ^ The population of Longueuil and Tremblay is placed by the census of 1698 at 223. Cf. Censuses of Catiada, 1665-1871, p. 40. 2 The honor was conferred by the king in response to a request made by the Sieur de Longueuil, through the governor and intendant, two years previously (see Fron- tenac and Champigny to Minister,October 15, 1698, Correspondance Gen'erale, vol.xvi). The history of the seigniory and barony of Longueuil is traced in detail in Jodoia and Vincent's Histoire de Longueuil et de la Famille de Longueuil (Montreal, 1889) ; and there is an interesting little essay on the Baron de Longueuil in Sir J. M. Le Moine's Maple Leaves, ist series, 47-53. For the order to communicate to the attorney-general the letters patent creating the barony, see Jugemetils et Delibera- tions du Conseil Souverain de la Notivelle- France, iv. 492. ^ The first Baron de Longueuil, born in 1656, died governor of Montreal in 1729. His son Charles, second baron, born in 1687, was for a time administrator of the colony, and died in January, 1755. The third baron was Charles Jacques Lemoyne (1724-1755), who, after distinguishing himself on the Monongahela, was killed at Lake George a few months after his father's death. As the third baron had no sons, the barony passed to his only daughter, Marie, who in 1 78 1 married Captain David Alexander Grant of the 94th Regiment. Their son, Charles William Grant, as- sumed the title of fifth baron in 1841, and died seven years later. The title then passed to his son, Charles James Irwin Grant, who held it till his death in 1879, when his son, Charles Colmore Grant, succeeded him as seventh baron. On the death of the last-named, in 1899, the barony passed to his half-brother, Reginald Charles d'lherville Grant, who holds the title of eighth Baron de Longueuil at the present time. The house of Longueuil is widely connected by marriage with many promi- nent families of contemporary French Canada, notably with those of Baby, Beaujeu, Lanaudiere, Gaspe, and Le Moine. THE SEIGNIORIAL NOBLESSE. 169 Her Majesty Queen Victoria, on the advice of the law officers of the crown, accorded recognition to Charles Colmore Grant as seventh Baron of Longueuil.^ The barony of Longueuil at one time included an area of about one hundred and fifty square miles, within which were the important towns of St. Johns and Longueuil ; but much of it has been sold and is now held in freehold by private owners. Such portions as had not been sold were in 1854 entailed as far as the existing laws would allow ; and, as this entail has since been renewed, the eighth baron has at present a life interest only in the estate. In the annals of French Canada from first to last there is probably no family which has consistently maintained a more favorable prominence than that of the former Dieppe innkeeper. One can read but few pages in the history of colonial America without encountering the name of a Lemoyne ; for from Hudson's Bay to the Mississippi some member of this virile family seems to have connected himself with almost every phase of French colonization.^ Among the noble holdings in New France only one chatel- lenie is numbered, that of Coulonge, which was given by the company to Louis d'Ailleboust in 1656. D'Ailleboust had come to Montreal shortly after the town was founded, and after filling important civil offices was in 1648 appointed gov- ernor of the colony. After the expiration of his gubernatorial term he remained in the country and devoted himself to the improvement of Coulonge, which the company later erected 1 The royal recognition was officially promulgated as follows : " The Queen has been graciously pleased to recognize the right of Charles Colmore Grant, Esquire, to the title of Baron de Longueuil, of Longueuil in the Province of Quebec, Canada. This title was conferred on his ancestor, Charles Lemoyne, by letters patent of nobility signed by King Louis XIV in the year 1700" {Londoti Gazette, December 7, 1880). The Baron de Longueuil is not, however, entitled as such to a seat in the House of Lords. 2 Among the brothers of the first Baron de Longueuil were Jacques Lemoyne de Ste. Helene, who fell at the siege of Quebec in 1690 ; Pierre Lemoyne d'Iberville and Jean Baptiste Lemoyne de Bienville, founders of Louisiana, and the latter gov- ernor of that colony ; Joseph Lemoyne de Serigny, naval officer and later governor of Rochefort ; and Louis Lemoyne de Chateauguay, killed in action at Fort Bourbon on Hudson's Bay. 170 THE SEIGNIORIAL NOBLESSE. into a chatellenie as a mark of appreciation of his efficient services.^ There seem to have been two marquisates in the territory of New France, but very little is known about them. About 1645, Jacques Leneuf de la Poterie, who has already been men- tioned as having received the seigniory of Portneuf in 1636, removed from this latter place and settled at Three Rivers, where he received from the company a grant of certain lands.^ This grant passed later into the hands of his son, Michel Leneuf de la VaUieres, who, in 1686, sold it to Charles Aubert de la Chesnaye through a deed of sale in which the territory is designated as the "marquisat de Sable." ^ No trace of any patent creating this marquisate has been found, however, nor does any Marquis de Sable appear to be mentioned in any of the records of the time. All that can be learned of the other marquisate is that, in the closing years of the seventeenth cen- tury, the title of Marquis de Miscou was given to one Michel de Saint-Martin, a French adventurer.* The title presumably relates to the island of Miscou in the Gulf of St. Lawrence, but there is no evidence that the marquis ever came to New France. In addition to the foregoing grants of higher dignities, many " letters of noblesse " were issued from time to time giving seign- iors rank among the lesser nobility. The term "noblesse" in its widest sense included all lay members of the privileged orders, no matter what their rank or their method of acquiring it ; for the attributes of nobility might be inherited, or obtained by letters patent from the king, or acquired through the tenure of certain designated offices in the royal service, either military or civil.^ There were, therefore, in France a large number of untitled nobles, or " gentilshommes," who, despite their lack of titles, 1 This patent is not printed in Titres des Seigneuries, but may be found in the Rapport du Minislre des Travaux Publics de la Province de Quebec (1899), 91. A summary of its contents, taken from the manuscript, is given in Dunkin's Address, Appendix, No. 44 a. ^ Titres des Seigneuries, 392. ^ Suite, Histoire des Canadien-Fran^ais, v. I02. * Ibid. no. ^"On distinguait plusieurs especes de noblesse : la noblesse hereditaire et la noblesse accordee par les rois, la noblesse d'epee et la noblesse de robe " (Cheruel, Dictionnaire Historiqiie des Institutions de la France, ii. 858). THE SEIGNIORIAL NOBLESSE. 1 71 possessed all the attributes and privileges of nobility, and trans- mitted their quality and status to their posterity. ^ Some of the emigrants to the colony, especially some of those who came out to take positions in the civil or the military service, were already members of the noblesse at home ; and these, of course, retained their rank in Canada. Others were commoners upon arrival, but received elevation as a royal reward for their interest in colonial development or for distinguished ability in the service of the crown.^ As early as 1667, Talon, in his " Memoire sur I'Etat Present du Canada," explained that "the noblesse of Canada " was " composed of four old families [that is, members of the noblesse at home] and four others to whom rank has been given by the king."^ The first four to whom the intendant referred were probably the families of Jacques Leneuf de la Poterie,* Charles Le Gardeur de Tilly, Jean Bap- tiste Le Gardeur de Repentigny, and Charles Joseph d' Ailleboust de Musseaux. The others cannot be definitely ascertained. It seems, however, that in 1661 Pierre Boucher had, on the recom- mendation of Governor Lauzon, received rank in the noblesse in recognition of his services as governor of Three Rivers, but that for some reason this patent was revoked five years later and Boucher became once more a commoner.^ Some other grants of noble status had also been made to colonials during this period, and it is probably to the holders of these that Talon had reference when he spoke of the " four other families. " In the 1 Strictly speaking, the term " gentilshommes " included only the hereditary noblesse (JZh&tn^X, Diciionnaire Hisiorigue,\. j\?>6'); but in New France it seems to have been applied to all the untitled noblesse, whether hereditary or not. 2. Robert Cavelier de la Salle, for example, received his patent in 1675 in appre- ciation of his zeal and success in exploration. See Gravier, Cavelier de la Salle de Rouen (1871), 360-361. 8 This " Memoire," which bears date of October 27, 1667, may be found in the Correspondance Generale, ii. 493-524. It contains a description of the colonial population at the time, and may be profitably compared with Hocquart's some- what different characterization of seventy years later (see Hocquart to Minister, No- vember 8, 1737, Ibid. vol. Ixvii). * On the matter of Leneuf's claim to rank in the noblesse, see Jugements et De- liberations du Conseil Souverain de la Nouvelle-France, i. 997. 5 This seems to have been an echo in the colony of the wholesale revocation of patents of noblesse which took place in France, under Colbert's auspices, in 1666. See Isambert, Recueil General des Anciennes Lois Fran^aises, xviii. 73, 172 THE SEIGNIORIAL NOBLESSE. same year (1667) the intendant asked that letters of noblesse should be given to five prominent colonists, — Godefroy, Le- moyne, Denys, Amiot, and Couillard ; ^ and at the same time Lieutenant-General Tracy, who commanded the troops in the colony, asked similar favors for Jean Bourdon, Ruette d'Auteuil, and Juchereau de la Ferte.^ Tracy furthermore urged that Boucher's patent should be restored to him. With all of these requests the king appears to have complied. The grant of these honors seems to have made such an im- pression in the colony that forthwith traders, artisans, and others were seized with a new desire to obtain seigniories in the hope that social elevation might follow. We are told, for in- stance, that Noel Langlois was a good carpenter until he se- cured a seigniory and aspired to be a gentilhomme, when he became proud and indolent ;^ and that Jacques Le Ber, a Mont- real shopkeeper, who had by years of work and thrift amassed a considerable fortune, readily paid out six thousand livres to become a gentleman.* Seigniors, merchants, artisans, and habitants sought patents of noblesse with almost equal vigor ; the whole colony became infatuated with aristocratic ideas, and men who failed to get formal recognition made a pretence of having received it. Habitants who had by years of hard labor amassed sufficient to purchase half -developed seigniories strutted about with the airs of born aristocrats, while their wives, in the words of Governor Denonville, " essayed to play the fine lady."^ The intendant Meulles was disgusted with the spirit: " Every one in the colony," he wrote, " begins by calling himself an ecuyer, and ends by thinking himself a gentilhomme."^ Many of this class of gentilshommes, genuine and bogus, be- 1 See Talon's " Memoire" of October 27, 1667, cited above. 2 See Tracy's " Memoire sur le Canada," 1667, a copy of which may be found in the Parkman Papers, Massachusetts Historical Society. 2 Duchesneau to Minister, November 10, 1679, Correspondance Ghterale, v. 62. * Faillon, Vie de la Madevioiselle Le Ber, 325. Le Ber, who became Monsieur de Senneville and seignior of the fief of St. Paul's Island, was reputed to be the richest man in Montreal. Langlois became seignior of the fief of Port-Joly ( Tii"es des Seignetiries, 130). ^ Denonville to Minister, November 10, 1686, Correspondance Generale, viii. 210.- ^ Meulles to Minister, November 4, 1683, Ibid. vi. 323. THE SEIGNIORIAL NOBLESSE 173 came so conspicuous by their " pride, sloth, and poverty," ^ that as early as 1679 the colonial authorities began to call the atten- tion of the minister to the danger of granting too many patents of nobility in the colony. " Many of our aristocratic officers," wrote Duchesneau in that year, " lead what in France would be called the life of a country gentleman, spending most of their time in fishing and hunting. As they require more expensive food and better clothes than do the ordinary habitants, and as they do not devote themselves to the cultivation of their lands, but only engage at intervals in illicit trade, they get into debt on all sides and throw out the temptation to their children to be- come coureurs-de-bois in spite of the interdictions of His Majesty . . . ; and notwithstanding their spasmodic trading operations they are in miserable poverty." ^ In 1685 Governor Denonville expressed himself in a simi- lar way. "Above all things," he wrote to the minister, " let me inform you. Sir, that the noblesse of this colony are a beggarly lot, and that to increase their number is but to increase the number of drones. A new country needs sturdy workmen to wield the axe and to handle the hoe. The only resource of the noblesse is to take to the forest, there to trade a little with the Indians and for the most part to contract their vices." ^ These are strong aspersions, but they were very probably warranted by the condition of many of those who claimed to be noblesse at the time.* In one of his lengthy despatches of the following year, De- nonville again drew the royal attention to the condition of the noblesse. This time he mentioned specifically the poverty of several families, notably that of St. Ours, who had been at one time an officer in the Carignan-Salieres regiment; and he requested the king to afford some monetary assistance to them.^ 1 Champigny to Minister, August 26, 1687, Correspondance Generale, ix. 144. 2 Duchesneau to Minister, November 10, 1679, Ibid. v. 62. 3 Denonville to Minister, November 13, 1685, Ibid. vii. 55. * It must not be forgotten, however, that many of the colonial noblesse were qnjte well-to-do. Such, for example, were the families of Lemoyne, Leneuf, Boucher, Robineau, Villeray, Lotbiniere, Saurel, and several others. 6 An interesting sidelight on the abject poverty of the noblesse is thrown by the •correspondence which passed between Governor Frontenac and the minister during 174 THE SEIGNIORIAL NOBLESSE. " Otherwise," he continued, " there is grave danger that their sons will turn bandits or go over to the EngUsh, since they have no other means of gaining a livelihood." The governor went on to impress upon the minister his belief that the colony would do very well without an aristocracy. " I had much rather," he wrote, " see good habitants in this colony ; for a habitant who can and will work can get along very well in this country, while gentlemen who do not work can never be anything but paupers." ^ As usual, the generous king came to the relief of St. Ours and the rest by sending the governor sums of money to be distributed among the struggling noblesse. This temporary succor did not avail much, however ; for before the year was over we find the intendant, Champigny, asking similar assistance for Repentigny, Tilly, and D'Ailleboust, who, it will be re- membered, were three of the "old families" to whom Talon had made reference some years before as having brought their "quality" with them from France. All of them had large households, and seem to have found it very difficult to live comfortably on the scanty seigniorial payments. Their younger children, the intendant declares, often went about half clad, while their wives and grown-up daughters found themselves compelled to pocket their pride and labor in the fields.^ the years 1690-1698, regarding various recommendations made by the governor in favor of certain seigniors. In 1690 Frontenac asked that letters of noblesse be given to Francois Hertel, seignior of Rouville, in recognition of his services. The request was promptly granted, but when the documents arrived Hertel did not have funds wherewith to pay the small fee required ; whereupon the governor asked the minis- ter to remit the amount on account of Hertel's poverty. This request the minister refused rather testily in a despatch to the governor and intendant, part of which reads as follows : " Sa Majeste n'a pas voulu entrer dans la demande du Sieur de Hertel, et sy cet homme n'est pas en estat de payer le sceau des lettres de noblesse qu' elle luy a accorde, il le sera encore moins d'en soustenir la qualite. Sa Majeste ne les auroit pas accorde sy elle avoit este informe de sa pauvrete, estant certain que cela ne serviroit qu' a jeter ses enfans dans le desordre qui auroient pu s'addonner a des travaux qui ne conviennent point ^ des gentilshommes " (" Memoire du Roy aux SieursComte de Frontenac et de Champigny," May 21, 1698, Collection de Manu- scrits relatifs a la Nouvelle- France, ii. 301). The language and expression are somewhat peculiar, but the point intended to be made is clear enough. 1 Denonville to Minister, November 10,1686, Correspondance Generale,\\\\, 192-266. 2 " C'est une chose digne de compassion de voir un grand nombre d'enfans THE SEIGNIORIAL NOBLESSE. 175 Other measures of relief than direct grants of alms were soon forthcoming. For one thing, the king arranged that male children of the noblesse should receive a limited number of mid- shipmen's commissions in the royal navy. Others were to be enrolled into cadet companies and regularly drilled in arms, and for this service were to have a small daily compensation. For the benefit of the adults a general conge was given, allowing them to engage in trade without prejudice to their rank ; but this permission was of little use to them, for in New France, as elsewhere, trade required both capital and experience, and the gentilhomme lacked both. The authorities also seem to have endeavored, when possible, to give members of the noblesse such civil posts as might fall vacant from time to time ; but the number of available offices was never large. In the long run, most of the nobility were forced to eke out a precarious existence from the dues which as seigniors they received from their dependents, supplemented by what they could raise on their ungranted domains. Very often they lived and worked like habitants, making the fruits of a hard season's toil and little more. One would naturally think that, when the complaints of the authorities as to the poverty of the noblesse first reached the king, the latter would have made an end to the practice of ennobling colonials. Not so, however. The letters patent con- tinued to come, until the intendant fairly implored the king to grant no more patents unless he simply wished " to increase the number of beggars." ^ Then the minister announced that the practice would cease ; but the promise was not kept, and before many years had passed rank in the noblesse was again being granted as freely as before. Down to the close of the period of French rule, indeed, the design of creating a colonial noblesse seems never to have been wholly abandoned. It was, however, in a calling widely different from industry or agriculture that the Canadian gentilhomme found his favorite vocation. Many of the noblesse had military training, and qu'ils ont, passer tout I'este avec la simple chemise et leurs femmes et leurs filles tra- vailler a la terre " (Champigny to Minister, August 26, 1687, Correspondance Gen- erale, ix. 144-147). ^ Champigny to Minister, May 10, 1691, Ibid. xi. 351. 176 THE SEIGNIORIAL NOBLESSE. most of them, perhaps, had military ancestry; at any rate, all seem to have had strongly warlike tastes. The gentil- homme, therefore, betook himself readily to the military service of the colony, and in the almost continual broils that took place either with the Indians or with the English found ample scope for the exercise of his belligerent propensities. He learned the science of forest warfare very quickly, and soon combined the sagacity of the redskin with the intelligence of the European. In all the incursions which wrought untold misery in the out- lying hamlets of English America, the gentilhomme took a leading if not always a creditable part. The descent on Schenectady in 1 689-1 690 was due largely to the initiative of the young Lemoynes, sons of Lemoyne de Longueuil. Le- moyne d'Iberville was in command, and with him were his two adventurous brothers, Lemoyne de St. Helene and Lemoyne de Bienville ; while on the roster of marauders accompanying them one finds the names of Repentigny, D'Ailleboust, and several other young members of the colonial noblesse. The Deerfield raid of 1704 was organized by the Hertels of the Richelieu district ; and the expedition which pounced on Haver- hill some four years later had among its leaders Hertel de Rouville, Boucher de la Perriere, St. Ours Deschaillons, and various other colonial aristocrats. On the occasion of every butchering raid across the borders of New England, the gentil- homme was readily to the front. Last in peace, he was first in war. "He was," says Parkman, "at home among his tenants, at home among the Indians, and never more at home than when, a gun in his hand and a crucifix on his breast, he took the war- path with a crew of painted savages and Frenchmen nearly as wild, to pounce like a lynx from the forest upon some lonely farm or outlying hamlet of New England. How New England hated him, let her records tell. The reddest blood-streaks on her old annals mark the track of the Canadian gentilhomme." ^ When the colony passed into British hands, many of the gentilshommes sold their seigniories and went to France. Naturally the percentage of exodus was higher among them than among the habitants. Maseres estimated that after the ^ Parkman, The Old Regime in Canada, ii. 6i. THE SEIGNIORIAL NOBLESSE. 177 treaty was signed in 1763 only twenty-two noble families re- mained in Canada ; ^ and four years later a table submitted to the home authorities by Governor Carleton showed how badly the hegira had depleted their ranks.^ The new suzerains respected the rank and privileges of all those who remained ; and Carleton suggested that, in view of the influence which they possessed over the habitants, the noblesse should be welded into sympathy with the new administration in every possible way. The institution of the noblesse was not an indispensable part of the seigniorial system, but in some ways served to strengthen it. Many seigniors were unquestionably spurred on to greater efforts in the development of their fiefs by the hope of receiving elevation to rank in the noblesse as a reward of their zeal ; for, although those who were so favored did not appear much the better for it, the royal reward was highly prized and zealously sought from first to last. Neither the seigniors nor the noblesse of Canada can properly be said to have formed a privileged order. Since no direct taxes were ever levied in the colony, there were no exemptions in favor of any class of the people. The seigniors and the nobility paid tithes, and if they engaged in trade they paid the regular import and export duties. Before the law they were but the peers of the habitant, and the intendant saw to it that this equality was no mere fiction of judicial adminis- tration. Nevertheless, like the attempt to foster a system of private justice, the endeavor to nurture a seigniorial aris- tocracy and to reproduce beyond the seas a prototype of the French nobility proved a rather discouraging failure. The little band of colonial elite was nursed liberally with royal favor and encouragement, but the gaunt, lean body would not thrive ; its debility was chronic from first to last. 1 Maseres, Additional Papers concerning the Province of Quebec, 164-168, 171. 2 This table is printed in the Report on Canadian Archives for i888, p. 41 ff. CHAPTER X. THE SEIGNIORIAL SYSTEM AND THE CHURCH. From beginning to end, one of the bulwarks of Canadian feudalism was the Catholic church, which, with its various subordinate institutions and orders, entered heartily into the spirit of the system, gave it unvarying support, and was a strong factor in securing its development and extension. During the seventeenth and eighteenth centuries, French colonial policy in America grounded itself upon a curious mixture of religious and economic motives. " That the people who inhabit these lands may be brought to a knowledge of the only God . . . and that there may be created in these newly discovered regions some trade which may become advan- tageous to His Majesty's subjects," were these motives as set forth in official language at an early date in the history of New France ; ^ and from that time to the day when the fleur- de-lys of the Bourbons fluttered down from the ramparts of Quebec, the royal authorities of France never lost sight of the religious motive in colonization. The priest and the trader, the two most prominent as well as most picturesque figures in the daily life of New France throughout its event- ful history, were the living embodiments of Bourbon colonial ideals. But religion and trade were alike militant, and their conflicting interests were often difficult to harmonize. Succes- sive functionaries — governors, intendants, commissioners — wore out their health and their patience in a futile endeavor to reconcile what seemed to be the clashing interests of God and mammon as typified in the respective aspirations of the Jesuit and the coureur-de-bois. With agriculture, however, religion was on much better terms. Men who remained on the land and tilled the soil were well 1 "Acte pour I'etablissement de la Compagnie des Cent Associes," April 29, 1627, Edits et Ordonnances, i. 5. 178 THE SEIGNIORIAL SYSTEM AND THE CHURCH. 179 within the reach of both church and state, while the lawless huckster of the wilderness was within arm's length of neither. The seigniors and their habitants could be used by the emis- saries of the church to set before the eyes of the savages an example of French civilization ; they could be utiUzed as exempli- fying the thrifty, industrious, sober, and godly life. The trad- ers, on the other hand, could never be used to this end ; on the contrary, if we may believe the clerical writers of the time, their influence upon the work of the church among the savages was wholly demoralizing, engendering among the redskins a general contempt for the ethics of French conduct. The writings of the Jesuits especially abound in blistering arraignments of these coureurs-de-bois, who, it is claimed, taught the savages all the vices of French civilization in its most degenerate days. Indeed, the dishonest and licentious conduct of the trading population was consistently regarded by the church as the greatest obstacle to the propagation of the faith in the north- ern regions of the New World. It therefore became the natural aim and policy of the church to support in every way any efforts which the civil authorities might make from time to time toward keeping the people on the land. This support the hierarchy gave, not simply by lend- ing the aid of ecclesiastical discipline against all who disobeyed the laws that forbade men to leave their lands without permis- sion, but, more particularly, by its work and example in de- veloping and cultivating lands given by the crown to the church and its subsidiary organizations. Foremost among these dependent organizations was that known as the Reverend Fathers of the Society and Company of Jesus, more commonly called the Jesuit order. As early as 1626 this order had obtained from the Due de Montmorenci, then viceroy of New France, its first grant of lands, the concession of Notre Dame des Anges, near Quebec ; and from this time on it received grants in all parts of the colony at frequent intervals. Before the close of the French period it had become by far the largest landholder in the country ; on the eve of the conquest it owned not less than a dozen estates, com- prising almost a million arpents of land. Nearly a century rSo THE SEIGNIORIAL SYSTEM AND THE CHURCH. before the cession of Canada to Great Britain, a governor whose opinion of the Jesuits was not of the highest had ven- tured to prophesy that in the course of time the Jesuits would monopolize all the best lands of the colony, a prediction which was on the high road to fulfilment by the middle of the eigh- teenth century ; for the Jesuits then held about one-eighth of all the granted lands. Nor were their lands greater in extent than in value ; for comprised within the Jesuit estates were hundreds of thousands of arpents of the very choicest lands of the St. Lawrence valley, the most fertile and the most favorably located for purposes of settlement.^ Although the Jesuits were the most favored of the various orders and institutions of the church, they were not by any means the only ones to share largely in the royal bounty. The kings of France, especially Louis XIV, sincerely desired the advancement of all the church interests in the colony, and would gladly have contributed heavily from the royal funds toward the work of the various religious orders ; on many occa- sions, in fact, Louis XIV assisted the church in New France by liberal donations of money. The treasury of the Bourbons, however, in the latter part of the seventeenth and the early 1 The following lands were held by the Jesuit order : — Charlesbourg 119,720 arpents Lorette 23,944 arpents Sillery .......... 8,979 arpents Isle aux Ruaux ......... 360 arpents Cap de la Magdelaine ....... 282,240 arpents Batiscan .......... 282,240 arpents La Prairie de la Magdelaine ...... 56,448 arpents St. Gabriel ......... 104,850 arpents Isle St. Christophe ........ 80 arpents Pachiriny 585 arpents La Vacherie ......... 73 arpents St. Nicholas 1,180 arpents Tadoussac ......... 6 arpents Total 880,705 arpents For these data, see Tache, Plan for the Comrmitation of the Seigniorial Tenure. This table may be profitably compared with the " Acknowledgment and Enumera- tiun of the Estates of the Jesuit Fathers in Canada, 1781-17S8," printed in Thwaites, Jesuit delations and Allied Documents, Ixxi. 65-95. See also Smith, History of Can- ada, i, Appendix. THE SEIGNIORIAL SYSTEM AND THE CHURCH. i8l part of the eighteenth century, was not full to overflowing, and hence for the most part the royal interest and appreciation had to show itself in grants of land instead of money. As land in the colony was plentiful, donations were lavish, — frequently tens of thousands of arpents at a time. Next to the Jesuits as extensive recipients of this form of royal generosity came the Bishop and Seminary of Quebec, with a patrimony of nearly seven hundred thousand arpents of land, an enormous accumulation which was largely the work of Laval, first bishop of Quebec and founder of the Seminary. The Sulpitians had at the time of the conquest succeeded in amassing about a quarter of a million arpents, while the Ursu- lines of Quebec had acquired a little more than one hundred and sixty thousand. The Recollets, who came to the colony at an early date and for a time bade fair to rival the Jesuits in influence and power, had failed to extend their influence to any appreciable degree, and had enjoyed almost no share in the royal liberality, their land holdings amounting to less than a thousand arpents. The superior power of the Jesuits had all but smothered the budding ambitions of the Recollets. Various other orders and institutions — as, for instance, the Ursulines of Three Rivers, the General Hospitals at Quebec and Montreal, the Hotel Dieu at Quebec — had also acquired holdings of varying amounts, which, with those of the organizations just mentioned, comprised somewhat less than a million and a quarter arpents, more land than was held by the Jesuits.^ As all of these orders (including the Jesuits) were either directly 1 The areas of the holdings were as follows : — Bishop and Seminary of Quebec 693,324 arpents Sulpitians. ......... 250,191 arpents Ursulines of Quebec . ....... 164,616 arpents Les Soeurs Crises 42,336 arpents General Hospital at Quebec 28,497 arpents Ursulines of Three Rivers. ...... 30,909 arpents Hotel Dieu at Quebec ....... 14,112 arpents Recollets .......... 945 arpents General Hospital at Montreal 404 arpents 1,225,334 arpents Jesuits 880,705 arpents Grand Total 2,106,039 arpents 1 82 THE SEIGNIORIAL SYSTEM AND THE CHURCH. or indirectly under ecclesiastical control, the church had thus acquired in perpetuity the ownership of no less than 2,106,039 arpents of land in the colony, while the laymen had received much less than six million arpents. The church, then, controlled nearly two-sevenths of the granted lands of New France ; hence its position there was relatively stronger than at home. The possession and control by the church, through its various institutions and orders, of such enormous territorial interests naturally gave it a favorable predilection toward that system under which the lands had been acquired and through the maintenance of which they could be firmly held. The seign- iorial tenure, therefore, permitting as it did the exaction of important revenues from these extensive holdings, and at the same time placing the holders under no important financial obli- gations to the state, was looked upon with high favor by those who for nearly a century held in their hands the destinies of Catholicism in North America, — Laval, St. Vallier, and Pont- briand.^ Both the seigniorial system and the parochial were strength- ened by the fact that the boundaries of the seigniories were in most cases coterminous with those of the parishes. The reason for this is to be found largely in the very late creation of the parishes ; for it was not until 1722 that, on the urgent counsel of the intendant Begon, the church authorities consented to a delimitation of parochial divisions. Up to that time it had been the policy of the bishop to keep all the priests on a missionary basis, sending them out from Quebec or Montreal to the various seigniories,^ and not permitting any priest to remain very long in one place; for it seemed to the bishops that by this means the priests could be kept more completely under episcopal con- trol than would be possible if they were permanently settled in the various parishes. In this matter the experience of the church in France was not lost upon the heads of the ecclesiastical organization in the colony. ^ The church lands had, for the most part, been freed from the usual obligations -to the crown. See above, p. 52. 2 Catalogne, in his report (see above, p. 45), makes frequent reference to this practice. THE SEIGNIORIAL SYSTEM AND THE CHURCH. 183 In the division of 1722, forty-one parishes were created in the district of Quebec, twenty-eight in the district of Montreal, and thirteen in the district of Three Rivers. In most cases the new parishes were coterminous with old seigniories ; in a few in- stances, however, larger seigniories were divided into two or more parishes, and in others a number of smaller or sparsely settled seigniories were grouped into a single parish. The seigniorial church, where there was such, now became the parish church ; but very often there was no place of worship other than a room in the seignior's house. The parish cure now resided in the seigniory ; and, as he was seldom provided with a presbytery, he not infrequently made his home with the seign- ior, with whom he often came to be a fast friend, aiding him with his assistance, counsel, and moral support. The manor- house thus became in a great many cases the centre of the religious as well as of the social relations of the seigniory. As the Abb6 Casgrain has remarked: "The system rested upon two men, the cure and the seignior, who walked side by side and extended mutual help to each other. The censitaire, who was at the same time parishioner, had his two rallying points, — the church and the manor-house. The Interests of the two were usually identical, especially as the limits of the seigniory were, with few exceptions, identical with those of the parish."^ It was not, however, obhgatory upon the seignior to provide for the sustenance of the cure, since the priests were supported out of the tithes, supplemented by gifts from the king or from philanthropic individuals in France. As early as 1663, Bishop Laval ordered an annual tithe of one-thirteenth of the produce of farms to be collected throughout the colony ; and in the same year the Sovereign Council gave this order the force of a secu- lar law.2 ^j. once there was a general outcry from the habitants that the tax was too heavy, and after a good deal of hesitation Laval agreed to reduce it to one twenty-sixth. In 1679 the king confirmed this action, and endowed the church with the 1 H. R. Casgrain, Une Paroisse Canadienne au xvii" Siecle, 40-41. 2 Mandements des Eviques de Quebec, i. 44-46 (March 26, 1663); Juge77ients et Deliberations du Conseil Souverain de la Notcvelle-France, i. 1 8- 1 9 (October lO, 1663). 1 84 THE SEIGNIORIAL SYSTEM AND THE CHURCH. perpetual right to exact one twenty-sixth. ^ The returns from this source were not large, however ; as late as 1700 the revenue did not amount to more than four or five thousand livres per year, and this sufficed to maintain only ten cures even at the low stipends paid in the colony. The tithe could be collected by the cure or by persons ap- pointed by the parishioners for the purpose, the proceeds being delivered at the parish presbytery.^ The cure had authority to have the crops of the parishioners estimated two weeks before the harvest, in order to satisfy himself as to the amount of tithes accruing to him. At first the tithe was exacted on grain only ; but when the habitants began to devote attention to the raising of flax, tobacco, vegetables, roots, and the like, the cures in some cases attempted to extend the obligation to these products as well. Against this the people protested, and in the early years of the eighteenth century the matter was taken before the Superior Council. That body promptly decided against the clerical pretensions,^ and from this decision an appeal was taken to the king, who two years later confirmed the action of the council.* Churches were erected in the various parishes by one of three means, — by funds provided by friends of the church in France, or by the subscriptions and labor of the people of the parish, or, occasionally, by the seigniors themselves. On application of the cure to the authorities at Quebec, a decree could be had ordering the habitants to furnish either materials or labor in the construc- tion or the repair of the parish church or presbytery. Thus, on the request of the cure of St. Laurent, the inhabitants of that parish were, in 1732, ordered by the intendant to " assemble and estimate the expense of constructing a new church, and to pre- pare a statement of apportionment among all the said habitants that it may be known how much each must furnish toward the building of the said church."^ Having done this, they were, by ^ Edits et Ordonnances, i. 231. It is of interest to note that the parish priests of the province of Quebec still collect a tithe of one twenty-sixth of all grain grown by their parishioners, — a right which has had legal sanction continuously from 1679 to the present time. 2 Ibid. ii. 434. 8 November 18, 1 705, Ibid. 133. * July 12, 1707, Ibid. i. 305. ^ Ibid. iii. 284. THE SEIGNIORIAL SYSTEM AND THE CHURCH. 185 a further ordinance issued later in the same year, ordered to contribute their allotted shares of material and labor ; and the royal officials were instructed to see that they did so. By the provisions of this ordinance the cure could, at his discretion, exempt from contribution any habitants whose poverty would render the exaction a hardship. A number of quite similar ordi- nances relating to the construction of ecclesiastical edifices in other parishes were issued from time to time.^ When the church was erected with funds provided from France or by the contributions of the people, the right of ap- pointment to the parish vested in the bishop ; but when the seignior built the church at his own expense it was necessary, down to the closing years of the seventeenth century, to allow him the patronage or advowson.^ This requirement was not viewed with favor either by Laval or by St. Vallier, who sought to restrict its application by refusing to allow the consecration of any seignior's church unless it were built of stone ; and this measure seemed likely to prove effectual from the fact that, without the ceremony of consecration, a church edifice could at best have a missionary and not a fixed cure. Down to 1681 only two stone churches were built by lay seigniors.^ Those of the seigniors who had erected wooden churches objected strongly to the episcopal policy, and some went so far as to prevent the bishop from undertaking the erection of stone churches within their seigniories. In 1699 the bishop brought the whole matter to the notice of the king, who issued an arret giving him power to proceed with the erection of stone churches in any seigniories in which such had not already been erected, 1 Cf. Edits et Ordonnances, iii. 205, 216, 217, 303, etc. ^ Ibid. i. 232, §§ vi-vii. 8 " Every one here is puffed up with the greatest vanity; there is not one but pre- tends to be a patron, and wants a cure on his land, yet all are heavily in debt and in the most extreme poverty. Exclusive of that at Quebec, there are, throughout the entire colony, only seven stone parochial churches. These are in the seigniories of the Bishop, of the Jesuits, of the Seminary of St. Sulpice, and in two private seign- iories. The rest are constructed of timber and plank at the expense of the proprie- tors of the fiefs, and of the settlers; the bishop, however, refuses to consecrate them, because, as he says, it is his duty and obligation not to consecrate any buildings ex- cept such as are solid and durable" (Duchesneau to Seignelay, November 13, 1681, Correspondance Generale, v. 275). 1 86 THE SEICmORTAL SYSTEM AND THE CHURCH. and to assume the right of patronage in regard to these. ^ It seems, however, that in actual practice the seigniors were often consulted before appointments were made ; for the episcopal authorities recognized that amicable relations between cure and seignior were highly desirable, and it was always the policy of St. Vallier and Pontbriand to secure this concord. In no way, however, did the church in Canada contribute so materially to the development and strengthening of the feudal system in the colony as through its example in successfully clearing, improving, and settling the individual seigniories owned by it and by its subsidiary organizations. From bishop to poorest cure, the hierarchy lent its superior intelligence zeal- ously to the work of developing the material as well as the spiritual interests of the church in New France, and with very marked success. Settlers were brought out under clerical aus- pices and placed upon the ecclesiastical seigniories, and once on the land they were counselled, assisted, and encouraged.^ As early as 1667, Laval was able to point with pride to the fact that his seigniories of Beaupr6 and Isle d'Orleans contained more than one-fourth of the colony's total population ; ^ and from this time down to the close of the French dominion the fiefs of the church never ceased to comprise within their bounds a very substantial percentage of the people of New France. Not only were the ecclesiastical seigniories among the most thickly populated, but they were, as Catalogue and others noted, among the best cultivated and the best managed.* The provisions made for the welfare and convenience of the habitants in the way of banal mills, roads, and so on, were on the whole much better than in the lay seigniories ; and there were fewer trivial disputes regarding seigniorial exactions. As one examines the host of petty difficulties which year by year came before the 1 Edits et OrdotiJiances, \. 279. 2 On the services of the Jesuits in the agricultural development of the colony, see Y^'CAon, Histoire de la Colonie Fran^aise en Canada, i. 161-164 ; and Rochemon- teix, Les /esuites, i. 154-157. ^ In the census of 1667, the total population of the colony was found to be 3,918. Of this number the seigniory of Beaupre contained 667, and that of the Isle d'Orleans 426. Cf Censuses of Canada, 1 665-187 1, p. 6. * See above, p. 45. THE SEIGNIORIAL SYSTEM AND THE CHURCH. 187 authorities at Quebec for settlement, one cannot but notice that by far the most of them came from the lay seigniories. The ecclesiastical seigniors and their habitants seem to have settled their troubles at home. The grants of seigniories to church institutions and orders were usually accompanied by the right to administer seigniorial justice. The ecclesiastical seigniors, like the laymen, usually received powers of high, middle, and low justice ; ^ but it does not appear that they ever attempted to use these powers in any considerable degree. By virtue of the right of low jurisdiction they frequently enforced the payment of seigniorial dues from recalcitrant habitants, but they seem to have made no serious attempt to exercise the two higher grades of jurisdiction. In the earlier days of feudalism in Europe, the clerical seign- iors, bishops, and abbots administered feudal justice within their fiefs, and succeeded in tincturing the customary law of these domains with those principles of the canon law with which the administrators of justice were naturally the most famihar. Ostensibly administering the customary law of the feudal unit, they in many cases applied the much more highly developed canonical jurisprudence. Had the hierarchy of New France assumed its feudal judicial power, it would have been interesting to note how far it would have departed from the Custom of Paris in favor of that system of jurisprudence with which it was more famihar ; but the various clerical officials and orders manifested no desire to exercise judicial authority. Indeed, when the royal court was established at Montreal, the Sulpitians petitioned that their seigniorial judicial powers might be revoked, and secured an ordinance effecting this revocation.^ The church in the colony never lost, as in France, the con- fidence of the masses of the people ; the higher ranks in the ecclesiastical hierarchy never lost touch with the lower, or the lower with the people. The Canadian clergy were never re- garded as a privileged order ; on the contrary, they gave to the colony much more than they took from it. If ever there were laborers worthy of their hire, these were the spiritual pioneers 1 See the grant of the fief of Sillery to the Jesuits in 1697, Titres des Seignetiries, 51. ^ Edits et Ordonnances, i. 276. 1 88 THE SEIGNIORIAL SYSTEM AND THE CHURCH, of France in the New World. Their influence with the habit- ants was deservedly powerful, and, in so far as this influence was given in support of feudalism, it formed a factor in the de- velopment of the system which is not readily overestimated. The church in New France was the firm friend of both abso- lutism and feudalism, for a stage in history had been reached wherein these were no longer antagonistic, but mutually helpful. The church owed much to both, and to each it made repay- ment in stanch loyalty. But despite the support which the seigniorial system in Can- ada received from both state and church, there were circum- stances which, during the closing years of the French era, served greatly to weaken it. The long English wars, which continued with but little interruption from 1745 to 1760, so hampered immigration from France that during this period the number of settlers who came into the seigniories was very small. The wars also laid a heavy strain upon agricultural conditions, for the authorities found it necessary to put into the field practically the entire adult male population. Whenever it was possible, however, these militiamen were allowed to return to their farms during the seeding and harvest seasons. Even in the late summer of 1759, when Montcalm was bending his utmost energies to the task of repelling Wolfe from the fortifications of Quebec, he found it necessary to allow large numbers of his sorely needed defend- ers to go home to gather in the harvests ; otherwise, a success- ful defence would have been followed by a winter of famine, for the English control of the seas rendered the importation of food supplies from France all but impossible. Under these circumstances lands went out of cultivation, or were for years left without proper care ; many holdings and even whole seigniories were abandoned ; seigniorial dues remained unpaid ; mills and churches went into decay ; in short, the whole agricultural system became disorganized. The reorganization of economic conditions, more particularly the rearrangement of those which had become entirely deranged by the enormous depreciation of the paper currency during the years preceding the conquest, was the task which first confronted the new British authorities. I CHAPTER XI. THE SEIGNIORIAL SYSTEM UNDER BRITISH ADMINIS- TRATION. The long struggle between France and Great Britain in North America was virtually brought to a close when, on the eighth day of September, 1760, the Marquis de Vaudreuil and General Jeffrey Amherst, on behalf of their respective sover- eigns, signed the Articles of Capitulation at Montreal.^ In this document, which embodied the agreement on the part of the French to withdraw their remaining military forces from the colony of New France, there were several articles which related either directly or indirectly to the existing system of land ten- ure, and which served in some measure to secure the perpetua- tion of it under the administration of the new suzerain. The terms of capitulation stipulated that all religious com- munities and all officers of the church should be preserved in the enjoyment of their property and " in the profits of their seigniories," as well as in all their " privileges, rights, honors, and exemptions." ^ Furthermore, by express provision, " all seigniors of lands, officers of the militia and of justice, all Cana- dians whether in the towns or in the rural districts, all French- men whether settled in or trading to the colony, and all other persons " were guaranteed in the " entire and peaceable posses- sion of their property whether en seigneiirie or en rotiire \en censive^." They were not to be molested under any pretext ^ " Articles de Capitulation," in State Paper Office, America and West Indies, xciii. 561-592. ■^ Article xxxiv : "Toutes les Communautes, Et tous les Prestres Conserveront Leurs Meubles, La Propriete, Et L'Usufruit des Seigneuries, Et autres biens que les uns et les autres possedent dans la Colonic, de quelque Nature qu'ils soient Et Les ■d. biens seront Conserves dans leurs Privileges, droits, honneurs, et Exemptions." i8q 1 90 BRITISH administration: whatever.^ By these articles in the capitulation the British authorities virtually bound themselves to maintain the existing system of land tenure ; for, by guaranteeing that the holders should suffer no loss through any detrimental action on the part of the new government, they assured all seigniors of a continuance of their privileges. Acting under instructions from England, General Amherst at once organized a military government for the colony, dividing it for this purpose into three military districts with headquarters at Quebec, Montreal, and Three Rivers respectively. Each district was placed in charge of a military officer, and military courts were established for the hearing of causes both civil and criminal. For the time being the French law, in so far as it could be discovered by the courts, was followed ; but from time to time each of the three district officers issued ordinances within his own jurisdiction, modifying the old laws in such respects as seemed necessary. The seigniors were supported in the exaction of their dues as soon as they had taken the oath of fealty and homage to the representatives of their new sovereign; but they were deprived of their judicial authority, all cases now coming in the first instance before the military courts.^ Even before the Peace of Paris was signed. Lord Egremont, secretary of state for the Southern Department, asked the officers in charge of the three districts to send him reports on 1 Article xxxvii : " Les Seigneurs de Terres, Les Officiers militaires Et de Justice, Les Canadiens, Tant des Villas que des Campagnes Les fran9ois Etablis ou Commer- ^ant dans toute L'Etendue de la Colonic du Canada Et Toutes Autres Personnes que ce puisse Estre, Conserveront L'Entire paisible propviete et possession de leurs biens Seigneuriaux et Roturiers. ... II n'y sera point touche ni fait le moindre domage, sous quelque pretexte que ce soit." It has sometimes been said (e.g., by Bourinot, CoJistitulion of Canada, 7) that the Jesuits, RecoUets, and Sulpitians were expressly excepted from the guarantee of proprietary rights until the royal pleasure could be known; but an examination of the articles will show that this exception was made in reference to the operation of Article xxxiii, which pledged a general continuance of ecclesiastical privileges, and not in reference to Article xxxvii, which dealt with rights of property. 2 Kegne Militaire en Canada, ou Administration Jiidiciaire de ce Pays par les Anglais du 8 Septenibre lybo au 10 Aotit 1764 Cpublished by the Montreal Historical Society, 1872). Cf. also Suite, Le Regime Militaire, 1760-1764, in Royal Society of Canada, Proceedings, 1905, Appendix A. BRITISH ADMINISTRATION. I91 the state of their respective jurisdictions, and to make recom- mendations regarding the future government of the colony. This they did, each giving an estimate of the total population in his district and expressing his opinion on existing conditions and institutions. General Murray's report shows that his short sojourn in the colony had not given him a very favorable opin- ion of the Canadian seigniors. "They are extremely vain," he wrote, " and have an utter contempt for the trading part of the colony. They were usually provided for in the colonial troops, which consisted of thirty companies. They are in gen- eral poor, except such as have had command of distant posts, when they usually made a fortune in three or four years. . . , They are great tyrants to their vassals, who seldom meet with redress, let their grievances be ever so just." ^ Before the British authorities could make any permanent disposition of affairs in Canada, however, a formal relinquish- ment of French claims on the colony had to be secured ; and this was not forthcoming until March 10, 1763, when the Treaty of Paris was ratified by the high contracting parties con- cerned. Among other things, this treaty confirmed the inhabit- ants of Canada in the concessions and privileges guaranteed them by the Articles of Capitulation three years previously, and in addition provided : " The French inhabitants and others who have been subjects of the Most Christian King in Canada may retire in all safety and freedom wherever they may think proper, and may sell their estates, provided it be to subjects of His Britannic Majesty." ^ A good many landholders in the eastern part of the colony had taken their departure to France immediately after the Articles of Capitulation were signed. Some of these had merely abandoned their lands, others had left them in charge of friends, 1 This report of June 5, 1762, though in many ways very interesting, shows rather scant knowledge of the real condition of affairs in Canada. It is the work of a man who seems to have made very little study of the questions with which he dealt. It is reprinted in full in Doutre and Lareau, Histoire Gcnerale du Droit Civil Canadien, 520 ff. 2 Treaty of Paris, article iv. The full text of this treaty may be found in George Chalmers, A Collection of Treaties betiveen Great Britain and other Powers (London, 1790), i. 467-483. 192 BRITISH administration: and some had sold them in the expectation that such sales would be held valid. Now, when announcement of the formal and final cession of the colony to Great Britain was made, a much larger number took advantage of the privilege extended them of selling their lands and leaving for France. Just how great this hegira was it is not easy to ascertain, for the census enu- merations during the long conflict-period preceding the conquest were very faulty, and the estimates of those who have made special study of the subject vary greatly. The exodus was, however, in all probability not so great as historians have usually supposed. Similarly, there are grave differences of opinion as to the nature of the outflow ; ^ but it is unquestionable that among those who left the colony during the years 1 760-1 765 were most of the former administrative officials, many notaries, and perhaps the majority of the noblesse. In a word, the colony lost many of its natural leaders. On the other hand, English settlers flocked into the country in considerable numbers, and bought the seigniories of those who wished to leave. Many of these Enghsh settlers were wise enough to see that the purchase of seigniories at sacrifice prices was an excellent investment ; for most of the estates included extensive tracts of ungranted lands, which with the increase of the colony in population would gradually rise in value. They saw, too, that with the settlement of the seigniories the dues payable by the habitants would be a source of considerable profit; and, finally, to many of the new arrivals the position and title of seignior seem to have appealed strongly. To the habitants this change was far from acceptable. They had no native re- spect for the new English seigniors, who were to them the repre- sentatives of an alien race and a heretical creed, and who were, besides, prone to insist rigidly upon the letter of their rights, and were too often, it would appear, somewhat over- bearing in their attitude toward their dependents. During the period intervening between the capitulation and the signing of the treaty, two seigniorial grants to Englishmen ^ On the extent and nature of the exodus, compare the widely divergent views of Garneau (yHistoire du Canada, ii. 393 ff.) and Suite (Z^ Regime Alilitaire, 85-S9). See also below, p. 204, note 2. BRITISH ADMINISTRATION. I93 were made by General Murray. These were the seigniories of Malbaie (Murray Bay) and Mount Murray, given in 1762, " for faithful services," to Captain John Nairn and Captain Fraser respectively, both of them officers in the regular forces. In the title-deeds or patents conveying these grants the term " seigniory " does not appear ; but in defining the conditions upon which the grants were to be held Murray seems to have made some attempt to follow the general tenor of seigniorial grants made during the old regime. He evidently took for his model the title of some earlier grant made under the custom of the French Vexin and not under the Custom of Paris ; for he provided for the payment of a relief and not of a quint upon mutations of ownership.^ Shortly after the ratification of the Treaty of Paris, a royal proclamation was issued (October 7, 1763), making provision for the establishment of a civil administration to replace the military rule which had been maintained since 1760.^ By the terms of this proclamation the government of the colony was vested in the hands of a governor to be appointed by the crown and to be assisted by a council similarly appointed. Provision was made for supplanting the existing legal system by " the law and equity of England in all cases both civil and criminal." The governor in council was empowered to make grants of land, especially as a means of rewarding those who had rendered ser- vice in the army or the navy during the war ; but, since the laws of England were prescribed as the legal system of the colony, ^ " I do hereljy give, grant, and concede unto the said Captain John Nairn, his h irs, executors and administrators forever, all that extent of land lying ... to be kni)wn hereafter by the name of Murray Bay ... for and in consideration of the possessor paying liege and homage to His Majesty, his heirs and successors, at his Castle of St. Lewis in Quebec, on each mutation of property, and byway of acknowl- ed^jment a piece of gold of the value of ten shillings with one year's rent of the domain reserved, as customary in this country, together with the woods and rivers, or other appurtenances within the said extent; the right of fishing or fowling on the same therein included, v\ithout hindrance or molestation ; all kinds of traffic with the Tn -ians of the back country hereby specially excepted." This title-deed is not l)rint d in Titres des Seigneuries, but a copy of it will be found in Troi5i'e7ne J^apport et Deliberations du Comite Special de V Assemblee Legislative (185 1 ), 95-96. ^ I'his proclamation will be found at full length in Doutre and Lareau, Histoire G'n'rale du Droit Civil Canadien, 330 ff. 194 BRITISH administration: he was, presumably, to make such grants in free and common socage and not en seigneurie or en censive. Two months after the issue of the proclamation a lengthy- code of instructions was sent to Governor Murray by the home authorities, laying down definite regulations both in regard to the attitude to be taken with respect to existing holdings of land and as to the policy to be followed in future.-^ In the first place, the governor was instructed to require all those who claimed to hold grants made to them before the conclusion of peace to present the same for registration and examination to the secretary of the governor's council at Quebec. Such titles, when found valid, were to be respected ; but, for the future, grants were to be made only in strict accordance with detailed regulations given in the instructions. These provided, in gen- eral, that, since great inconveniences had "arisen in many of our colonies in America, from the granting of excessive quan- tities of land to particular persons," who had " never cultivated or settled them," and had " thereby prevented others more in- dustrious from improving them," particular care was to be taken to avoid the practice of making to settlers larger grants than they could handle properly. The governor was instructed to observe the general rule of granting one hundred acres of land to the head of a family, with an additional fifty acres " for every white or black man, woman, or child, of which such person's family shall consist at the actual time of making the grant." If it appeared that the grantee possessed the means and the inten- tion of cultivating a larger area, the governor was authorized to depart from the foregoing rules ; but in no case was a single family to receive more than one thousand acres. The terms under which the grants were to be made were very simple : after two years from the date of the grant an annual quit-rent of two shillings for every hundred acres was to become due and payable to the crown forever ; and within three years the grantee was to clear three acres for every fifty held by him. ^ "Instructions to Our trusty and well-beloved James Murray, Esquire, Our Cap- tain-General and Governor-in-Chief, in and over Our Province of Quebec in America," December 7, 1763, in State Paper Office, Board of Trade, Canada, vol. i. These instructions are printed in Doutre and Lareau, Histoire Generale, etc., 55^-572, and in the Report on Canadian Archives for 1904, pp. 193-210. BRITISH ADMINISTRATION. 195 Failure to fulfil either obligation was to entail forfeiture of the whole grant. In the instructions a desire was expressed that the colony should furnish mast timber for use in the royal navy, and to this end the governor was instructed to reserve all such timber land. The policy pursued under French domination had been to grant lands with a specific reservation in the title-deeds that all oak and pine timber should be kept for the king's use.^ The new policy proposed the adoption of a somewhat different course; for the governor was instructed not to grant the best timber lands at all, but to see that these were held as royal reservations. It was apparently the intention of the British authorities, as evidenced by these instructions, that all future grants should be made in free and common socage, subject to the payment of a perpetual but merely nominal quit-rent to the crown ; and since, by the proclamation of 1763, the English law of real property had become the land law of the colony, this new policy seemed the only logical one.^ It was not long, however, before the at- tempt to administer English land law encountered difficulties. A system of courts was established ; but the judges and officials were Englishmen, who knew little and cared less about existing conditions in the colony. The new courts, therefore, in their attempt to apply the principles of English law to the cases which came before them, soon found themselves floundering in a maze of complications, inconsistencies, and contradictions, a situation which convinced both judges and suitors that the task of deciding disputes between seigniors and habitants by the rules of English law and procedure was an impossible one. ^ See above, p. 74. 2 I do not discuss here the vexed question whether the Enghsh law was validly introduced by the proclamation of 1763. It is maintained by some legal writers that the proclamation did not actually introduce the English law, but merely gave Murray the power to do so with the advice and consent of his council and the approval of a representative assembly. This power, it is claimed, was never exercised, be- cause no representative assembly was called into existence. It does not seem necessary, for the purposes of the present study, to examine the merits of this con- tention; but reference may be made to two leading cases in which the point is dis- cussed, — Stuart wj. Bowman, 1S51, 2 Lower Canada Reports, 369, and Wilcox z/^. Wilcox, 1857, 8 Lower Canada Reports, 34. 196 BRITISH administration: Accordingly, Governor Murray, with the consent of his council, allowed the courts, for the time being, to apply the old French law to such civil cases as could not otherwise be satisfactorily settled. This action was communicated to the home authorities, and apparently met with their approval; for in 1766 they issued instructions " that in all suits and actions relating to the titles of land, and the descent, alienation, settlement, and encum- brances of real property, and also in the distribution of personal property in cases of intestacy, and the mode of assigning and conveying it, they [the courts] do govern themselves in their proceedings, judgment, and decision, by the local customs and usages which have hitherto prevailed and governed within the province, using and applying the said usages and customs to the cases coming before them in like manner as the customs and usages of Normandy are appHed in cases from Jersey before the lords of our privy council." ^ For the time being, then, the courts applied English law in all cases save those specifically excepted as above. In this way the legal chaos was somewhat relieved, but by no means entirely so ; for not only were there inherent difficulties connected with the attempt to administer a system of law which was entirely strange to those who came within its operation, but the judges and officials seem to have been exceedingly incapable and untactful. Most of them, having no knowledge of French, could carry on their proceedings only with the aid of an inter- preter ; and as practically all of them were paid by fees, they had ample opportunities for extortion, which the covetous were apparently not slow to seize. Governor Murray branded the new English arrivals in the colony, more particularly the traders, as the most immoral collection of men he had ever known. This was the condition of affairs when Murray, in 1766, returned to England, giving over his post of governor to Gen- eral Guy Carleton (afterwards Lord Dorchester). On his ar- rival in England, Murray prepared and presented to the Earl of Shelburne, who as secretary of state for the Southern Depart- ment had charge of colonial affairs, a comprehensive report 1 " Instructions to the Hon'''^- James Murray, governor of Canada," June 24, J 766, in State Paper Oftice, Board of Trade, Canada, vol. xv. BRITISH administration: 197 on the condition of the colony. This report is an interesting- one, couched in vigorous language. It begins by giving an estimate of the population and wealth of the colony as re- capitulated from the census of 1765. It then proceeds, in marked contrast to his report of 1762, to comment rather favorably upon the seigniorial system of land tenure. "The seigniors," writes Murray, " though not rich, are in a situation to support their dignity. The inhabitants, their tenanciers, who pay only an annual quit-rent of about a dollar for one hun- dred acres, are at their ease and comfortable. They have been accustomed to respect and obey their noblesse, their ten- ures being military in the feudal manner. They have shared with them the dangers of the field, and natural affection has been increased in proportion to the calamities which have been common to both from the conquest of their country. As they have been taught to respect their superiors, and are not yet intoxicated with the abuse of liberty, they are shocked at the abuse which their noblesse have received from the EngHsh traders and lawyers since the civil government took place." He goes on to speak in the most scathing terms of the char- acter and conduct of the new English settlers : " The Canadian noblesse were hated by them because their birth and behavior entitled them to respect ; the peasants were abhorred because they were saved from the oppression they were threatened with." It was from this class, he says, that the judges and officials of the colony had been chosen during the years 1 763-1 766. "Magistrates were made and juries composed from four hundred and fifty contemptible sutlers and trad- ers. . . . The judge pitched upon to conciliate the minds of sev- enty-five thousand foreigners to the laws and government of Great Britain was taken from a jail, entirely ignorant of law and of the language of the people." Not one of the officials of administration, he declares, understood the language of the people. 1 Even before Murray's report was made the colonial office had undertaken an investigation of the causes of legal dis- 1 Murray to Shelburne, August 20, 1 766, Canadian Archives, Ilaldimand Collec- tion, B. 8, pp. 1-128. ig8 BRITISH ADMUVISTRATIOAT. order in the colony, and had commissioned the law officers of the crown to report some means of remedying the con- dition of affairs. During the early summer of 1766 these officials presented a list of recommendations which, on the whole, looked toward a further compromise between the two systems of law. In cases affecting land tenure and inheritance and the distribution of personal property in the event of in- testacy, they proposed that the French law should be retained ; but " in all personal actions grounded upon debts, promises, contracts, and agreements, and upon wrongs proper to be compensated," they suggested that the courts apply "those substantial maxims of law and justice which are everywhere the same." ^ As the home authorities took no action on either of these reports except to confirm the existing arrangements, Governor Carleton turned his attention to a personal investigation of the matter. Carleton had already spent some time in the colony as an officer of the regular forces, and was therefore fully conversant with the unsatisfactory condition of things. His personal inclination was toward the restoration of French law for the decision of all civil cases. One difficulty, however, lay in the fact that the so-called civil law was not accessible in written form ; it consisted not only of the Custom of Paris, but of the whole mass of edicts, ordinances, declarations, and decrees which had been issued either to supplement or to modify the custom. As a first step, therefore, the governor requested a number of " Canadian gentlemen well skilled in the laws of France " to make a compilation of the civil laws of the French period, in order that at least the most important of them might be rendered accessible. This work was done during the next half-dozen years.^ 1 Report of Attorney-General Yorke and Solicitor-General de Grey, April 14, 1766, in Smith, History of Canada, ii. 35 ff. 2 The compilation, when finished, was issued in four parts, three of them " drawn up by a Select Committee of Canadian Gentlemen well skilled in the Laws of France and of that Province." The titles were : ( i ) An Abstract of those Parts of the Custom of the Viscounty and Provostship of Paris, which were received and practised in the Province of Quebec in the time of the French Government ; (2) The Sequel of the Abstract . . . containing the thirteen latter Titles of the said Abstract ; (3) An BRITISH administration: 199 It was Carleton's earnest wish that the home authorities might be brought to see the desirability of reestablishing the old juris- prudence (especially now that it was being compiled) as the civil law of the colony ; and it was with this end in view that on Christmas Eve, 1767, he despatched to the Earl of Shelburne a long communication setting forth his views on the subject. Carleton first reminded the British authorities that they were not now dealing " with a migration of Britons who brought with them the laws of England, but with a populous and long-estab- lished colony reduced by the king's arms to submit to his dominion on certain conditions;" that their laws and customs, though widely different from those of England, were " founded on natural justice and equity," and "their honors, profits, and property depended on these laws and customs ; . . . and that this system of laws established subordination from the highest to the lowest and preserved the harmony of the colony until our arrival." After reminding the minister of these facts, the governor proceeded to express the opinion that the action of the home authorities in overturning in an hour this complex system and in supplanting it by a system of " laws ill-adapted to the genius of the Canadians, to the situation of the province, and to the interest of Great Britain, unknown and unpublished," had been not only an error " but a sort of severity which had never before been practised by any conqueror, even where the people had, without capitulation, submitted to his will and dis- cretion." He then pointed out that, notwithstanding the action of the home government in introducing English civil law into the colony, the people continued to " regulate all their transactions by their ancient laws, though unknown and unauthorized in the Abstract of the Criminal Laws that were in force in the Province of Quebec in the time of the French Government ; (4) An Abstract of the several Royal Edicts, and Declarations, and Provincial Regulations and Ordina^ices, that were in force in the Province of Quebec in the time of the French Government, and of the Com- missions of the several Governours-general and Intendants of the said Province, during the same Period. The last part was prepared by " Francis Joseph Cugnet, Esquire, Secretary to the Governour and Council of the said Province, for the French Language." All four parts were published in London in 1 772-1 773. After the reestablishment of French civil law in the colony in 1774, this compilation became a standard for the courts. 200 BRITISH ADMINISTRATION. courts, where most of these transactions would be declared invalid." He attributed the absence of much more violent manifestations of discontent among the people to the fact that the enormity of the change was not fully recognized by them, but declared that the recognition of it would in time cause conster- nation amongst them. The new English courts, he affirmed, had done little or nothing to alleviate the legal chaos. " They have," said he, " introduced all the chicanery of Westminster Hall into this impoverished province, where few fortunes can bear the expense and delay of a law suit." Carleton, therefore, strongly urged the home authorities to repeal entirely the ordinance establishing English civil law in the colony, and, "fol- lowing the precedent established by Edward the First after the conquest of Wales," ^ to decree the reestablishment of the old French law duly codified, with such alterations as might seem necessary. With his despatch Carleton enclosed the draft of an ordi- nance which he had at first intended to issue himself with the assent of his council, but which on reflection he had deemed of sufficient importance to submit to the home government.^ This ordinance proposed to enact, among other provisions, " that all laws and customs which prevailed in this province . . . concern- ing the rights, privileges, and pre-eminences of tenures, both such as were held immediately of the crown and such as were held of subjects ; and concerning the inheritances of the said lands upon the death of any of the proprietors thereof, and concerning the forfeiture, confiscating, re-annexing or re-uniting to the domain of the lord, escheat, reversion, or other devolution whatsoever of the said lands, either to the King's Majesty or to any of His Majesty's subjects of whom they are held; and concerning the power of devising or bequeathing any of the said lands by a last will or testament, and concerning the power of alienating the same by the proprietors thereof in their life- time; and concerning the power of limiting, hypothecating, charging, and in any way encumbering or affecting any lands in 1 Carleton to Shelburne, December 24, 1 767, in State Paper Office, Board of Trade, Canada, vol. vi, No. 23. 2 This draft accompanies Carleton's despatch in the State Paper Office. I BRITISH ADMINISTRATION. 201 the province, shall continue in full force and vigor until they are changed in some of these particulars by ordinances made for that purpose." The ordinance proposed to extend its terms " not only to all lands in this province held immediately of the crown by grants made by the French king before the conquest of the country, and to all lands held under the immediate tenants of the crown who are commonly called seigniors, by grants made by the said seigniors to inferior tenants or vassals before the conquest, but likewise to such lands as have been granted by the said seign- iors to the said inferior tenants since the conquest, and likewise to all such lands as shall be hereafter granted by the said seign- iors to the said inferior tenants or vassals ; both those that shall hereafter be made, and those that have been made already, shall be subject to the same rules, restrictions, and conditions as were lawfully in force concerning them in the time of the French government, at or immediately before the said conquest of the country by the British arms." A final clause in the proposed ordinance made provision that lands granted by His Majesty since the conquest in free and common socage should continue to be so held. As the home authorities were awaiting the compilation of the French civil law before coming to a decision, no immediate acceptance of Carleton's recommendation took place. The work on the laws was hurried on during the spring of 1768; and in April the governor was able to send to England the first part of the compilation, containing an abstract of those parts of the Custom of Paris that had been recognized in the colony. Meanwhile his secretary, Cugnet, busied himself with the ab- stract of the edicts and ordinances. In transmitting the first part of the compilation to the Earl of Shelburne, Carleton again argued at some length in favor of retaining intact the old sys- tem of land tenure. " The Canadian tenures differ, it is true," he wrote, " from those in the other parts of His Majesty's American dominions, but if confirmed (and I cannot see how it can be well avoided without entirely oversetting the proper- ties of the people), will ever secure a proper subordination from this province to Great Britain." Governor Carleton likewise 202 BRITISH administration: expressed a desire that he might be authorized to make grants en seigneiirie and en censive under the provisions of the old law as well as in free and common socage.^ But not all the officials in the colony were of the same mind as the governor. One of those who differed very decidedly from the royal representative was Francois Maseres, the attor- ney-general. Maseres was of French descent, his ancestors having gone over to England with many other Huguenots when the Edict of Nantes was revoked, toward the close of the seven- teenth century. In his sympathies, however, the attorney-gen- eral was thoroughly English, and his schooling in English law had given him a veritably Blackstonian love of his profession. Now, as Carleton desired to get the fullest possible information regarding the legal conditions and necessities of the colony, he had asked Maseres, among others, for a report elaborating his views and opinions. This request the attorney-general complied with early in 1769. As might have been anticipated, Maseres's report set forth opinions which ran directly counter to the personal views of the governor ; for in general the writer insisted that the restoration of the entire fabric of French civil law would be a misfortune both for the colony and for Great Britain. The retention of that part of the old jurisprudence which dealt with real property seemed to Maseres justifiable enough ; but farther than this he was not prepared to go. He was of the opinion that the people in general were satisfied with the law as it stood, and that their complaints arose from the expense and delays which accompanied the administration of it. What was needed, he thought, was a reform of the judicature and not of the law.^ This report was a disappointment to Carleton, who wrote to the home authorities deploring the " narrow prejudices " of his attorney-general, which he attributed to his " having conversed more with books than with men." ^ 1 Carleton to Shelburne, April 12, 1768, in State Paper Office, America and West Indies, vol. cccxxvi, No. 33. 2 Francois Maseres, Draught of an Act . . . /or settling the Laws of Quebec (Lon- don [1771]). 2 Carleton to Hillsborough, October 3, 1769, in State Paper Office, America and West Indies, vol. cccxxvii. BRITISH administration: 203 The governor had now apparently come to the conclusion that the concurrence of the home authorities in his own plans could be secured only as the result of a personal visit to Eng- land; and, to this end, in the following year (1770) he obtained a short leave of absence from the province. He was firmly convinced that the progress of the colony was being grievously hindered by the unsettled condition of its legal system. The people, for instance, were following the Enghsh system of conveyancing as simpler and less expensive than the French, even though it did not lend itself to the existing form of tenure. The seigniors were generally disregarding the pro- vision in the Arret of Marly (171 1) that no entry fee should be exacted from habitants for grants of land, but that holdings en censive should be freely conceded at the rates customary in the neighborhood. Many of them were refusing to pay their quint, some on the ground that the governor in council had no right to revive the Custom of Paris in part, and some on the ground that they had not been called upon to render fealty and homage, a duty which was, by the custom, a pre- requisite of the exaction. Many seigniors were exacting dues and services to which they were not entitled, and many habit- ants were refusing to render even their proper obligations. All this disorder served to produce a torrent of litigation which the inefficient judicial organization was utterly unable to stem with any approach to satisfaction. On his arrival in England, Carleton laid the question be- fore the authorities and recommended action. Immediate action upon a matter so important was not easy to secure ; neverthe- less the Board of Trade agreed to recommend to the king the expediency of giving permission for further grants en seigneiirie in the colony. ^ On June 27, 1771, the king in council issued instructions to the lieutenant-governor " revoking all His Maj- esty's former instructions for granting lands in the colony, and empowering the governor, with the advice of the council, to grant the lands which remain subject to His Majesty's disposal, in fief or seigniory, as hath been practised heretofore, ante- 1 Report of the Council for Trade to the King, April 24, 1770, in State Paper Office, Board of Trade, Canada, vol. xvi. 204 BRITISH administration: cedent to the conquest of Canada ; omitting, however, in such grants, the reservation of the exercise of such judicial powers, as hath been long disused within the said province." ^ The practical importance of these new instructions was not great. During the years intervening between 1771 and the outbreak of the Revolutionary War, there were numerous appli- cations for grants of land in the colony, but in very few cases were grants of seigniories dtpsired ; almost invariably the appli- cants asked for concessions in free and common socage. The instructions are important mainly as showing that the British authorities had come to the determination, not only to preserve intact the seigniorial system of the French era, but to give opportunity for its further extension. Wise or unwise as the action of the British authorities on this occasion may be deemed, it was perhaps the only step possible in view of the development of affairs since the conquest ; for never, perhaps, has any colony been placed in such a peculiar position with respect to the tra- ditions of its own past as was Canada after 1760. After the conquest many of the higher officials of administration and of justice took their departure, carrying with them the confidential archives, and thus leaving the colony with neither living nor dead depositaries of the colonial law ; for the officials who stayed behind were not the most capable of preserving a cor- rect tradition of the legal spirit of the old regime.^ New rulers and leaders arrived, not only ignorant of the tongue of those among whom they came to live, and strangers to existing laws, usages, and modes of thought and feeling, but bringing with them the opinions and maxims of a nation which was of all nations the least akin to France. The newcomers were, moreover, men who were not at all prepared to seize, or even to try to grasp, the peculiarities of the juristic system which they sought to supersede, whether such had to do with the pre- 1 Additional Instructions for Governor Carleton, June 27, 1771, in State Paper Office, Board of Trade, Canada, vol. vii. These instructions were received and en- tered on the records of the council at Quebec, June 30, 1772. They are printed in the Report on Canadian Archives for 1904, p. 228. 2 This seems to be shown by subsequent events, despite the fact that, as Judge Baby has pointed out (^U Ex ode des Classes Diris^eantes a la Cession du Canada, Montreal, 1899), a very considerable portion of the official class remained in Canada.. BRITISH ADMINISTRATION. 205 rogatives of the French crown, or with the confusion of execu- tive, legislative, and judicial functions which pervaded the whole French colonial system, or with the uncertain and purely com- mendatory character habitually attaching to its juridical acts, or with the vast and complex mass of rights of person and property subsisting under it. Under the French rule, for ex- ample, the governor and intendant had been wont to exercise a more than praetorian power in respect to land grants and the conditions of land tenure. We have the testimony of one of these officers that they could not, under the circumstances of the colony, follow the strict rules of the Custom of Paris, no matter how much they might be disposed to do so ; for any strict adherence to it would have resulted in gross injustice in many individual cases.^ The administration of the land laws under the old system was therefore exceedingly elastic. Though customary law is not by nature very flexible, in this case the possession by the intendant and council of wide discretionary powers had permit- ted elasticity in its application. Under the new government all this was changed. The executive authorities had now no judi- cial powers; the judiciary had no discretion but to follow the law wherever it could be discerned. It is no doubt true that in most cases the new English courts strove to discover the law and to follow it ; but by seeming analogies in English law they were too often misled to a misinterpretation of the ancient land laws of the province. Perhaps the most common as well as the most natural error made by the new courts in this particular lay in their attempt to apply to en censive lands the laws and customs relating to English tenure in copyhold. In England copyhold lands were governed largely, almost entirely, indeed, by the unwritten cus- toms of the various manors ; the copyholder's possession of his land was secure so long as he rendered the customary obligation to the lord of the manor. When, therefore, the colonial judges had to decide questions concerning eti censive lands, they sought to discover the customs of the seigniory and to apply these to the cases in hand. The very term " coutuine'' served to mis- 1 See Raudot to Pontchartrain, November 10, 1707, cited above, p. 124. 2o6 BRITISH administration: lead them. As a matter of fact, during the French period no stress had been laid on the custom of the seigniory except in a single particular, — namely, when land within a seigniory was granted by the royal authorities because the seignior himself refused to concede at reasonable rates. ^ The rights and respon- sibilities of seignior and habitant respectively, however, were regulated, not by any local seigniorial custom, but by the Cus- tom of Paris, which applied throughout the colony. This Custom of Paris, moreover, was not unwritten law, like the customary law of the English manors ; it was, like the other French coiitmnes, a written code, systematically drawn up and enacted by authority. In the language of jurispru- dence, it was statutory and not customary law. Although it was originally formed by the crystallization of a mass of cus- tomary rules, the perpetuation of the term "custom" rendered little service save to mislead. In a word, the English judges did not seem to grasp the fact that the Custom of Paris was a written code of law, subject to modification at any time by the authority possessing legislative power in France and in the colony. They persistently attached too much weight to " customary " rates and " customary " services, and too little both to the written contracts held by the habitants and to the written laws of the land.^ Again and again seigniors were 1 See above, p. 89. 2 Precedents had been set for the judges by the decisions of the military courts which were established during the period of military rule, 1 759-1763. An example of the somewhat peculiar attitude taken by these courts is given in the case of Le Due vs. Hunaut, decided by the military court for the district of Montreal in 1762. By the deed of certain en censive lands in the seigniory of Isle Perrot, executed in 1 718, the defendant Hunaut had been placed under obligation to pay the seignior Le Due " one half minot of wheat and ten sols per year for each superficial arpent" within the grant. Hunaut now appealed to the court against this exaction, on the ground that it was higher than the rate customary in the colony. The court decided that the rate stipulated in the deed must have been " an error of the notary," and ordered that in future the seignior should exact only "the usual rate at which lands are granted in this colony, that is, one sol for each superficial arpent and one half minot of wheat for each arpent in front by twenty in depth "(^i?^/^^^r of Arrets of the Military Council of Montreal, April 20, 1762). As has been shown in this study (above, ch. v), the court was quite in error in accepting any definite rate as " usual" throughout the colony. The habitant was entitled, after 1711, to demand a grant at the rate customary in the neighborhood ; but if he chose to accept a grant at a higher rate the right of the seignior to exact such dues was incontestable. BRITISH ADMINISTRATION. 20/ called upon to prove that they had in the past exacted certain dues and services from their habitants ; and having given this proof they received judgment compelling the habitants to con- tinue the payments. Throughout the French period there had been no dearth of cases in which the seignior enforced unwar- ranted exactions as the price of the habitant's general igno- rance : too often he repaid the confidence of his dependents by abusing his powers. When, however, any such case came to the notice of the authorities, a prompt end was made to the seigniorial abuse, and in most instances a penalty was imposed. To the French authorities a seigniorial claim did not gain va- lidity through long assertion. The only sources of seigniorial privileges were the Custom of Paris, the deeds of concession embodying the contract made by the seignior with the origi- nal grantee, and the various edicts, ordinances, and decrees of the higher civil authorities. The provision which revived the old French law in all cases affecting the tenure of lands and the inheritance of real property did not, therefore, set the lands of the colony back under the old legal system, although this was most certainly what it had in- tended to do. It placed them rather under what the judges could discover to have been the customs and usages of the period before the conquest. Such a situation was, naturally, very much more to the advantage of the seigniors than to that of the habitants.^ Prior to the conquest the habitants had had a double protection in the judicial power of the courts and the administrative jurisdiction of the intendant. Of the two the latter was by all means the more effective, and of it the habit- ants were now deprived. The three steps taken by the British authorities for the per- petuation of the feudal system in Canada may at this point be recapitulated. They were the guaranteeing to all landholders of 1 On this point the Report of the Commissioners of 1843 declared: "However unfounded the pretension of the seignior might have been considered in the Court of the Intendant, he has in the Courts of later creation invariably been successful in all his contests with his tenants, with the exception of a single instance, which occurred in the Court of King's Bench at Montreal in 1828" ( Titles and Documents, i. 66). This exception was the case of McCallum vs. Grey, King's Bench, April 18, 1828. 2o8 BRITISH ADMINISTRATION. their vested rights, the retention of the old law in all cases relating to the tenure and inheritance of landed property, and the granting to the authorities of permission to continue the concession of seigniories. All three measures together did not, however, secure the maintenance of the old system intact : the framework was retained, but the spirit which characterized the system was gone. For this one can scarcely blame the British authorities either at home or in the colony, since they had endeavored to buttress the old tenure in so far as this could be done by official action. Nor should one overlook the difficulties which even the best of courts would have encountered under the peculiar circumstances ; for, even had the justices been dis- posed to study thoroughly the old system of law, — as they were not, — they would have found the task bewildering. The various sources of the law were difficult to get together, and when collected they presented little that was attractive to an English jurist. The colonial ordinances and decrees were still in manuscript, unarranged, unindexed, to some extent incom- plete, and, above all, written in French, in a hand very hard to read. Since, then, the customs of the country were so much easier to discover than the law, it is not surprising that men trained in the common law of England should have sought the former as their rule of decision and neglected any serious attempt to ferret out the latter. During the dozen years inter- vening between the conquest and the compilation of the French law in 1772, the British officials and judges had thus, from the very nature of things, little accurate grasp of the old jurispru- dence. But to return to the mission of Carleton. The governor had proceeded to England in the autumn of 1770, with the intention of being absent about six months ; but various circumstances combined to keep him there for four full years, the affairs of the colony being administered meantime by a lieutenant- governor, the Hon. H. T. Cramahe. Carleton, upon his arrival in England, lost no time in emphasizing to the ministry his desire for the full restoration of the old French civil law. At first the ministry was not willing to accede to this proposal, especially since the opinion of Maseres had been recorded against it. BRITISH administration: 209 Moreover, the question of legal reform in the colony had now become part of the larger question of political reform. The movement for an elective legislature was gaining force ; ^ and the ministry, naturally enough, concluded that the decision of the legal question should depend to some extent upon the disposition of the political. The preHminary step to action was taken when the ministry requested the three chief law officers of the crown, — the attorney-general, the solicitor-general, and the advocate-general respectively, — to prepare reports upon Carleton's recommenda- tions. The reports of these three officials, presented during the years 1 772-1 773, were practically at one in recommending the reestablishment, substantially intact, of the whole of the old civil code.^ There can be little doubt that these reports carried considerable weight with the ministry, and that they were in no small degree responsible for the legal provisions of the Quebec Bill, which was introduced into the British Parliament during the spring of 1774. By the terms of the Quebec Bill the criminal law of England was to be maintained in the colony ; but "in all cases relative to property and civil rights " resort was to be had to the old civil law through French modes of judicial procedure. Either sys- tem of law might be modified, however, by ordinances of the colonial government; and it was expressly provided that owners of land might bequeath their real property according to English rules of bequest, if they chose to do so. Other provisions of the bill ratified the guarantees made to Canadians by the capitulation of Montreal and the subsequent Treaty of Paris, and confirmed the Roman Catholic clergy in the enjoyment of their " accustomed rights and dues." ^ The general history of this movement is traced in Christie, History of the Late Province of Lower Canada, vol. i, and in Kingsford, History of Canada, vol. v. 2 The reports of Solicitor-General Wedderburn and of Advocate-General James Marriott dealt exhaustively with the whole legal situation in the colony. Wedderburn's report, presented December 6, 1772, is printed in Christie, History of the Late Prov- ince of Lower Canada, i. 27 ff., and in Doutre and Lareau, Histoire Generale du Droit Civil Canadien, 643-658. Marriott's report, submitted on May 3, 1773, was published in the following year under the title A Plan of a Code of Laws for Quebec (London, 1774). An excellent summary of its contents is given in Doutre and Lareau, Histoire Generale, etc., 658-669. 210 BRITISH administration: The debates in Parliament on the Quebec Bill developed considerable opposition to these provisions. One of the points emphasized was that, since the French civil code made no provision for jury trials, questions involving important interests, such as titles to land, would, under the new bill, be decided by a judge alone.^ Indeed, the French civil procedure in general did not commend itself to most Englishmen. Under that system the evidence in a case was taken at a court of inquiry at which no judge was present ; the record of the evidence and exhibits was then laid before the judge, who was addressed by the advocates of the opposing parties on the matters contained in it and on the points of law involved in the case. The judge did not come into contact with the witnesses. Now, while this procedure differed very decidedly from that followed in civil cases at English law, it did not differ so much from English actions at equity ; but this seems to have been overlooked by those who opposed the legal provisions of the bill in Parlia- ment. In due time, however, the Quebec Bill passed through Parliament and became law, going into operation on the iirst day of May, 1775.^ In America, as well as in England, most of the provisions of the bill called forth criticism, the legal clause being among the number. Perhaps the most impor- tant of the criticisms offered was that of the framers of the Declaration of Independence, who enumerated among the arbitrary and injudicious acts of the home authorities that of "abolishing the free system of English law in a neighboring province." It may very well be doubted, however, whether any other course would have been expedient. The attempt to impose English law relating to civil rights upon the province had failed miserably, and the endeavor to retain parts of the two systems side by side had produced legal chaos of the worst sort. It is therefore not strange that the home authorities should have decided to adopt the third alternative, that of restoring the old system. On the assumption that Quebec 1 Cavendish, Debates of the House of Commons in the year 1774, on the Bill for . . . the Govern/nent of the Province of Quebec (ed. J. Wright, London, 1839). 2 14 George III, c. 83, printed in Houston, Constitutional Documents, 90-96. BRITISH ADMINISTRATION. 211 would for all time remain predominantly French in language, traits, and traditions, their decision was neither unnatural nor unreasonable. It certainly was not reached hastily, or without due consideration of objections from every quarter. Having seen the measure safely through Parliament, Carleton resumed his work as governor in Canada ; but before the changes in judicial organization necessitated by the act could be prop- erly made, he found his energies wholly taken up with the task of repelHng an invasion of the colony by the forces of the revolt- ing seaboard settlements to the south. This threatened danger brought up an important question connected with the obligations imposed upon the seigniors and their dependents by the seign- iorial system. It had always been recognized, during the French period, that the governor might call upon the seigniors of the colony to enrol their habitants for military service in the inter- ests of the crown. No such stipulation, it is true, was ever in- serted in any of the title-deeds of grants within the colony ; ^ but the rights of the crown in this respect seem never to have been questioned. It was now suggested to Carleton that he should issue a proclamation requiring the seigniors of the colony to enrol their dependents into companies, and to hold them at the disposal of those who commanded the small contingents of regular British troops in the colony. As the governor was ex- tremely anxious to increase the defensive strength of the colony to the utmost point, he readily accepted this suggestion, and on June 9, 1775, called upon the seigniors to muster their habitants to repel the invaders. He asked them to have the habitants provide themselves with arms, and to hold themselves in readi- ness to proceed to designated centres of mobilization. Most of the seigniors, taking the view that the representative of the crown had a legal right to command their own service and that of their dependents, promptly conveyed the orders of the governor to their habitants ; but they met with very little favorable response, for in many cases the habitants took the ground that, with the cession of the colony, their obligation to do military service had passed out of existence. Some of the seigniors pointed out to them that refusal to serve would entail ^ See above, p. 64. 212 BRITISH ADMINISTRATION. the forfeiture of their lands, and that as soon as affairs were settled the courts of the province would be called upon to decree this forfeiture ; but the habitants gave little heed to these threats, and a few of the seigniors who attempted to bully their depend- ents into enrolment were very roughly handled. In some in- stances the governor sought to assist the seigniors by sending some regular officers into the seigniories ; but the habitants re- ceived them coldly and in some cases with open insolence. In one instance the women of the seigniory put the officers to iiight with a well-aimed volley of rocks and other missiles.-^ It ap- 1 For a detailed account of the disorders which attended the attempts of some of the seigniors to enrol their habitants, see an interesting paper entitled " A Narrative of the tumultuous conduct of the freeholders of divers seigniories in the province of Quebec in the summer of the year 1775, in opposition to the endeavours used by their Seigniors to call them out to take arms against the American army, that had in- vaded the province : Shevv^ing their aversion to being commanded by their Seigniors, and the little influence their Seigniors, and the other Noblesse of Canada, have over them." This paper, which was " written by a Gentleman very lately arrived from Quebec," is preserved by Maseres in his Additional Papers concerning the Provifice of Quebec (1776), 71 ff. A few extracts from this narrative may be interesting. It begins as follows : " An opinion prevails in the Province of Quebec, (whether just or not I will not pretend to determine,) that the Seigniors owe military service to their Sovereign, by the tenure of their lands ; and that in the acts of Foi et Hommage, or fealty and homage, they promise to perform the same to the Crown, when called upon : And that, by the same act, they also engage for the personal service of all their vassals, and other tenants, who hold their lands from them, either /ar foi et hommage, or par cens et rentes, or (as it is often expressed) en Roture. It is universally believed, that the Seigniors have, by the Customs of Canada, (which are revived by the late Quebec act,) a legal right, to command the personal service of all the holders of land under them, whenever the Sovereign, or his Representative, calls upon them (the seigniors) for that purpose." It then proceeds to recount the experiences of various seigniors. M. La Corne, seignior of Terrebonne, was told by his tenants " that they were now become subjects of England, and did not look on themselves as Frenchmen in any respect whatever," and that consequently he had no right to enforce the obligations imposed by French law. When La Corne attempted to bully them, they mobbed him vigorously and compelled him to hurry back to Montreal ; when he threatened to return with soldiers and force them to their service, they resolved to arm themselves and to resist force with force. M. Deschambaud went over to his seigniory on the Richelieu and summoned his tenants to arms ; they listened patiently to what he had to say, and then peremptorily refused to accede to his demands. At this the seignior was foolish enough to draw his sword; whereupon the habitants gave both him and a few friends who accompanied him a severe thrashing and sent them off vowdng vengeance. Fearing retaliation, the habitants then armed themselves, and to the number of several hundred prepared to attack any regular forces which might BRITISH administration: 213 pears that not more than a few hundred French militiamen were enrolled in all the seigniories; and of these many were appar- ently induced to render their service through promises of a liberal bounty. The whole episode is interesting, not only because it shows the somewhat changed attitude of the habitant to the seigniorial system under the new government, but also because it seems to have been the last attempt on the part of the British authori- ties to enforce the seigniorial obligation of military service. Although the seigniorial system was still in existence during the war of 18 12-18 1 5, it does not appear that the enrolment of a feudal ban was even suggested to the authorities. The failure to enforce the obligation in 1775 seems to have ended its existence. Owing to the disturbances of the year 1 775-1 776, no steps were taken toward carrying out the terms of the Quebec Act till February, 1777, when a new system of civil courts for the administration of the revived French civil law was established. A little later a proclamation was issued requiring all holders of seigniories to render their fealty and homage to the representa- tive of the crown at Quebec.^ This step was deemed advis- able because, as there had been no general rendering of this obligation since the conquest, some of the seigniors were taking advantage of the fact to refuse payment of their dues to the crown. Since, however, the filing of aveiix et dinonibrements had to accompany the performance of fealty and homage, and since the preparation of these files by the seigniors took time, the date fixed for the rendering of the allegiance was in 1778 extended to the last day of 1779.^ be sent against them. Through the discretion of Governor Carleton, however, who hastened to send one of his officers to disavow the action of the seignior and to promise the habitants that if they returned quietly to their homes they should not be molested, they were persuaded to disperse. Mr. Cuthbert, an English gentleman, seignior of Berthier, tried in vain to secure a hearing from his tenants, who refused to assemble at his manor-house. They held a meeting of their own, however, and took oath among themselves that if any one of their number responded to the call " they would directly burn his house and his barn, and destroy his cattle." These and other examples serve to show that the habitants resisted in no uncertain way the attempts of the authorities to enforce the feudal obligation of military service. ^ State Paper Office, Board of Trade, Canada, vol. xx, August 28, 1777. 2 Ibid. November 30, 1778. 214 BRITISH administration: Meanwhile Governor Carleton had left the colony and had been succeeded by Governor Haldimand. During the next dec- ade, little occurred in connection with the history and develop- ment of the seigniorial system that is worth recording. A number of the regular troops sent out to Canada during the American Revolution took up lands in the colony and became permanent settlers there ; but these received their grants in free and common socage. During the latter part of the war, and especially after the conclusion of the peace of 1783, large numbers of loyalists made their way from the seaboard States to Canada. Comparatively few of these, however, took up lands in the settled districts of Quebec, although some came into what are now the " Eastern Townships " ; the great ma- jority went either to the maritime provinces or to the western part of Canada, — to what now forms the province of Ontario. Haldimand was instructed to treat the loyalists generously in the matter of land grants, which in every case seem to have been made in free and common socage. Even among the French population of the colony there was a growing feehng in favor of the English freehold tenure ; petitioners for public lands almost invariably asked that the grants be given in this form. In the course of this research, not a single instance of a grant en seigneiirie from the crown between 1775 and 1792 has come to light, though the colonial authorities possessed an un- doubted right to make such grants. On the other hand, there seems to have been a desire on the part of some seigniors to have their tenures converted into the new form. This feeling first manifested itself officially in a petition to the governor, in 1788, from M. Charles de Lanaudiere, a prominent seignior of the colony and a member of the council, who asked "that the tenure of his estates be converted from tenure in fief to tenure in free and common socage." ^ Lanaudiere's petition was promptly referred to a committee of the council, but no action was taken upon it. In 1790, however, the governor ordered that a committee of the whole council should hear M. de Lanaudiere on his petition, and that it should, furthermore, " investigate and report a state- 1 Minutes of the Council, August 25, 1790, Titles and Documents, i. 25-26. BRITISH administration: 215 ment of the comparative advantages of the tenure in free and common socage, and the present tenures of the province of a different description, with a view to the pubUc interest, as well as that of the individuals holding under such tenures " ; that it " deliberate, and in case a conversion of the present tenures in fief or otherwise into socage tenure shall appear to be ad- visable," that it " report upon the most eligible mode of effecting the same, without prejudice to the rights of individuals and the general interest of the country. " The committee was also in- structed to obtain information regarding the seigniorial system from every accessible source, and, if it was deemed advisable, to call upon the law officers of the crown in the colony to assist in the investigation. Early in September, 1790, the committee began its inquiry T3y calling upon the surveyor-general for a table showing the number of seigniories granted, the total acreage of the same, and, so far as possible, the conditions on which the grant had been made in each instance. It then proceeded to draw up a series of legal questions, the decisions upon which seemed necessary to a proper understanding of the seigniorial system ; and these queries, eleven in number, it submitted to the attor- ney-general and the solicitor-general for a joint report.^ Through ^ The questions (which may be found in Titles and Documents, i. 27 ff.) were as follows : — 1. " Upon what tenures were the lands of this country granted by ,the French crown ?" 2. " What kind of tenure was most prevalent, and what may be stated in probable conjecture for the proportion between them ? " 3. " What securities had the French crown by the law of the country, or the nature and tenor of the grants, to compel or promote the cultivation and improve- ment of the land granted ?" 4. " What were the legal burdens upon the grantee of the crown in reservations, conditions, rents, and services ; or what were the benefits accruing to the French crown from the nature of the grant, founded in the usual reservations, or by the gen- eral laws of the country ?" 5. " What were the benefits which the grantee of the crown might draw from the subfeudatory ; or what were the burdens, the acknowledgments, rents and services, to which the occupants under the royal grantee were liable from the nature of the concession or by the law of the country? " 6. " Was the estate of the grantee of the crown subject to partition by marriage contract, testamentary disposition, or any other mode of alienation, voluntary or 2i6 BRITISH administration: serious illness the attorney-general was prevented from assisting in answering the questions ; but early in October the solicitor- general, the Hon. J. Williams, presented the results of his in- vestigation. ^ His answers were for the most part brief, and in general showed that only a cursory inquiry into the matter had been made by him. In one or two cases they were clearly misleading.2 On the whole, however, the report, considering the haste with which it was prepared, gave a good general out- line of the legal bases of the land-tenure system existent during the old regime. About the same time the council had requested M. de La- naudiere himself to present answers to the same queries. Ac- cordingly, a week or two after the solicitor-general made his report, Lanaudiere submitted his replies to the first seven of the eleven questions, his answers agreeing in the main with those given by the solicitor-general.^ Having in these various ways possessed itself of information on the subject in hand, the council proceeded to adopt a series of resolutions embodying its views. After summarizing the in- judicial, and by inheritance in the lines direct or collateral ; or was any estate held impartible and unalienable, or in the nature of an English entail ? " 7. " Were the subfeudatory farms of the concessions of the tenantry held under the royal grantees, devisable, descendible, alienable, and partible in the like manner without limitation?" 8. " Would a conversion of the French tenures into the tenure of free and com- mon socage be advantageous to the proprietor holding by grant of the French crown in fief, seigniory, or roture, discriminating its effects as to the parcels that are settled, or such as are still unconceded and uncultivated ; and what in particular appears to you to be the instances of advantage or disadvantage to result from such conver- sion ? " 9. " Would such conversion of the tenure of estates or farms of the subfeuda- tories be beneficial or detrimental to them ; and in what respects as you apprehend, and for what reasons ? " 10. " How may the interests of the crown and public be affected by such conver- sion ; stating the points in which it may operate to the loss or emolument of the royal revenue ? " 11. "By what mode may such conversion of tenure be accomplished ?" 1 " Report of the Solicitor-General to the Honorable Members of the Council," October 5, 1790, Titles and Documents^ i. 27-35. 2 For example, in declaring that the cens et rentes was uniform in amount. Cf. above, p. 92. 3 Titles and Documents, i. 35-39 (October 17, 1790). BRITISH administration: 217 cidents of the seigniorial system under the French rule, it declared its opinion that " the feudal system . . . was among the main causes of that low condition in which Canada was found at the British conquest." Moreover, it affirmed that in all probability the continuance of the system would operate more detrimentally in the future than it had done in the past, since the population of the country now depended "for its increase upon the introduction of British settlers," who were "known to be all averse to any but Enghsh tenures." This being the case, it seemed to the council that the seigniors could hope to increase the number of their censitaires in future only by drawing upon the descendants of present censitaires ; and it expressed grave doubts whether even these would be found will- ing to take grants en censive, when grants in free and common socage were to be had from the crown. Accordingly, the coun- cil resolved that it would be to the interest of all concerned if the tenure of lands held en seigncurie or en roUire could be commuted into the tenure of free and common socage ; but since " an absolute and universal commutation of the ancient tenures, though for a better, would be a measure of doubtful policy," it decided to recommend that legislation be had pro- viding for voluntary but not compulsory commutation. In accordance with this resolution, it submitted to the governor the draft of a bill providing that any seignior might surrender his lands to the crown and receive back the same in free and com- mon socage ; that any one who held lands en censive directly from the crown might do likewise ; and that one who held a grant en censive from a seignior might arrange with the seignior for a conversion of the tenure of his holding.^ From these resolutions one of the members of the council, Mr. Mabane, strongly dissented on several grounds. "It ap- pears," he declared vigorously, "that the slow progress of popu- lation and settlement under the government of France cannot be ascribed to any inherent vice in the several tenures under which lands are held in the colony; that it arose from the difficulties which the first settlers found in contending with the fierce and savage nations which surrounded them, from their ^ Resolves of the Council, Titles and Documents, i. 39-43. 2l8 BRITISH ADMINISTRATION. frequent wars with the British colonies, and above all, from their repeated expeditions in the upper countries and toward the Ohio, in which the ambitious policy of France had forced them to engage." As a proof that the present tenures were "not inimical to population and settlement of the colony," Ma- bane pointed to the fact that the population of the colony had doubled since the conquest. He showed, moreover, — and he was right in so doing, — that the council proposed to allow the seigniors to obtain full property in the ungranted lands of their seigniories, whereas by the provisions of various royal edicts they were merely trustees of these lands and were under obligation to grant them to applicants at the customary rates. The carrying out of the council's recommendations would, Mabane claimed, greatly enhance the value of the seigniories to their holders, and would at the same time deprive the people of the colony of vast areas of lands which the seigniors held in trust for them and for their descendants. " If the conversion of the seigniories into free and common socage should take place," he declared, "the children of the present inhabitants of the country and all others desirous to settle thereon would be left entirely subject to the arbitrary exactions of the seigniors, to their infinite prejudice and the manifest detriment of the country's improvement." In conclusion Mabane asserted that the great mass of the people were satisfied with conditions as they were; "that the services or burdens to which the censi- taires under concessions from seigniors " were subject were " few, clearly understood and ascertained, and ... by no means onerous or oppressive."-^ The passing of these resolutions by a majority of the council seems to have had no tangible result whatever. The question was raised whether the power to carry out the recommendations was vested in the colonial authorities, or whether it would have to be sought from the home government; but the feeling in the country on the matter of obtaining commutation of tenures was not strong, and for many years after the recommendations of the 1 " Mr. Mabane's Reasons of Dissent from the Resolutions and Motion of the Chief Justice adopted by the Committee [of the Whole Council]," Titles and Docu- ments, i. 43-44. BRITISH administration: 219 council were made the whole subject seems to have been left in abeyance. Other important questions, such, for example, as the obtaining and inaugurating of a system of representative government, engaged the minds and attention of the legis- lators. Meanwhile, although the colonial authorities in Lower Canada stood ready to grant lands en seigneiirie whenever application for such a cession was made, there seems to have been no grants under this form of tenure.^ From time to time peti- tions were received from seigniors asking for the commutation of the tenures under which they held their lands, but in no case were the authorities bestirred to any action other than the mere acknowledgment of the petitions. During these years the land laws of the province were administered, so far as possible, as they were during the French period ; but although the judges sought to discover and enforce the legal rights of seigniors and censitaires respectively, they encountered many difficulties in their application of the law. During the old regime, for example, the intendant had been endowed with wide discretionary powers, extending, as has been shown, even to the setting aside of seigniorial claims which, however well-founded at law, seemed to him unreason- able in exaction.2 He had administrative as well as judicial powers : he could not only order a seignior to concede por- tions of his ungranted lands to a settler, but in the event of the seignior's refusal he and the governor might make the grant and convey a valid title by their own authority.^ Now, by the Judicature Act of 1793, the court of King's Bench in Lower Canada was invested with "full power and jurisdic- tion to hear and determine all plaints, suits, and demands of what nature soever which might have been heard and deter- mined in the courts of the Prevote, Justice Royale, Intendant, or Superior Council under the government of the province, prior to the year 1759, touching rights, remedies, and actions of a civil nature."* From the wording of the statute it would appear that the administrative as well as the judicial au- ^ See Dunkin, Address at the Bar, etc., Appendix. 2 See above, p. 205. ^ Above, p. 89. * 34 George III, c. 6. 220 BRITISH administration: thority of the intendant had been inherited by the new court. In several important cases the court held that the provi- sions of the arrets of 171 1 and 1732 were still in force in the colony, and, in consequence, that a seignior was under obligation to make grants of land at the rates customary in the neighborhood ; ^ but in no case did it assume to follow up this opinion by making such a grant when the seignior refused to do so.^ In other words, in declining to apply the old remedy, it deprived of its former effectiveness the important rule of law in regard to compulsory subinfeuda- tion. In a number of other matters, also, the protection of the habitants against their seigniors was far less effective than it had been under the old dispensation. The old court of the intendant exacted no fees whatever for services ; its interven- tion could be had by the poorest habitant. Under the new judi- cial organization, litigation was very much more expensive ; and, although the habitant might in theory still claim the protection of the courts against illegal seigniorial exactions, he was in most cases debarred from doing so by his com- parative poverty. This point is very plainly made in a re- port which the attorney-general submitted to the governor in 1794. In that year some of the habitants of the seign- iory of Longueuil petitioned the governor for relief against " an arbitrary increase of rents " claimed from them by their seigniors " in open defiance of the ancient ordinances of the kings of France. " The governor referred the matter to the attorney-general, who reported that, while the right of the habitants to refuse payment of the increased rentals and dues was perfectly clear, nevertheless the expense to which they had to go in order to make this right effective put them almost entirely at the mercy of their seigniors.^ The situation 1 See, for example, Langlois vs. Mart el, 2 Lower Canada Reports, 51. 2 Meredith, Observations, 1 13. 3 "They [the habitants] are able to institute and carry on their suits to judgment in the common pleas ; equal perhaps to meet the costs of the court of appeals ; but the enormous expense attending an appeal to His Majesty in council, to which the seignior is entitled, as his rights in future may be bound by the decision, deprives them of the possibihty of obtaining justice, and compels them to abandon their rights, BRITISH ADMINISTRATION. 221 was one which in practice operated very much to the advan- tage of the seigniors, and the result was apparent in the very- considerable rise in the rate of dues exacted in many of the seigniories. Since 1791 the question had become a matter of concern to Lower Canada only ; for by the Constitutional Act of that year the colony had been divided into two provinces, and in Upper Canada provision had been made for the establishment of both the civil and the criminal law of England.^ In the upper province, lands were to be granted in free and com- mon socage only ; in Lower Canada they were to be given under this form of tenure whenever the applicant so desired, but the right of the royal representatives to grant lands eji seign- eurie in other cases was in no wise abridged.^ During the fifteen years following the passing of the Consti- tutional Act, no definite steps appear to have been taken by the authorities in the direction of commuting the tenure of lands held under the old system. It seems to have been the feehng that legislation would have to be sought from the British ParUa- ment before the matter could be properly dealt with ; but this point was not regarded as settled. Consequently, toward the close of 1 8 16, when the affairs of the province so long disturbed by war had become settled, the home authorities were asked for their opinion as to whether the colonial government could, of its own powers, accept the surrender of lands held en seigneiirie for the purpose of regranting them in free and common socage. On receiving this request. Earl Bathurst, who was then in charge of the colonial office, desired the opinion of the law officers of the crown on the matter. This opinion he promptly received, and forthwith transmitted a copy to Quebec. The crown officers, after reviewing the various enactments relating to the tenure of lands in the colony, expressed the opinion that there did " not seem to be any objection to His Majesty's ac- and throw themselves upon the mercy of their antagonist, who compromises the action, and grants a new deed of concession upon his own terms" (Report of the Attorney- General, February 27, 1794, Titles and Documents, i. 93-95). 1 31 George III, c. 31. This act may be conveniently found in Houston's Con- stitutional Documents, II2-133. 2 Ibid. § xliii. 222 BRITISH ADMINISTRATION. cepting a surrender of lands holden cii seigneurie and regranting them in free and common socage," and hence that no special legislation on the point by either the home or the provincial parliament would be necessary. They bcHeved, however, that, if commutation were to be made compulsory, appropriate leg- islation to this end must be obtained.^ The colonial authorities expressed their satisfaction with this opinion, but at once raised another question of a somewhat different nature. It seems that in 1794 Lord Dorchester had assured the colonial legislature that the proceeds of the droit de qjiint, which accrued to the crown from the seigniories, should be used toward defraying the civil expenses of the colony. The question which now presented itself was whether, in the event of permitting the seigniors voluntarily to obtain commutation, this right would not be lost, and whether, therefore, the crown would not, by the use of its prerogative, have broken its pledge to the legislature. Since the permitting of voluntary commuta- tion would reduce the revenues of the colony, ought not the consent of the colonial legislature to the proposed action to be asked ? ^ To this question the home government, which was again consulted, returned answer " that to take from them [the legislature] this source of revenue without their assent, or with- out an equivalent, would be an infringement of what they might fairly consider a pledge or assurance on the part of the crown." Consequently the colonial authorities were advised that it would not be expedient, without securing legislation from the provincial parliament, to make any attempt in the direction of changing the tenure of lands.^ One other question, though not so important, is of interest as showing the difficulties in the way of effecting a commutation of ^ Bathurst to Sherbrooke, February 6, 1817, Correspondence between the Colonial Office and the Governors of Canada relative to the Seigniorial and Feudal Tenure (1853), 18-20. The opinion which accompanies Bathurst's despatch is dated Jan- uary 22, 181 7, and is signed by the Hon. W. Caron, attorney-general, and the Hon. J. Shepherd, solicitor-general. 2 Sherbrooke to Bathurst, May 20, 181 7, Ibid. 21, 3 Bathurst to Sherbrooke, August 31, 181 7, Ibid. 21-23. This despatch is accom- panied by an opinion on the question, dated August I, 1817, addressed to Earl Bathurst and signed by "Messrs. S. Shepherd and R, Gifford, His Majesty's law- officers." BRITISH ADMINISTRATION. 223 tenure even when both the seignior and the authorities were in favor of it. By the provisions of the Constitutional Act of 1791, one-seventh of the ungranted lands of the colony were to be re- served for the support of a Protestant clergy.^ The point was now made that, if a seignior surrendered his lands to the crown, he could receive back only six-sevenths of them in free and common socage ; for, by the very fact of surrender, he would put his property in the category of "ungranted lands," of which one-seventh must be reserved by the crown.^ In view of the difficulties in dealing with the matter, it was thought best by the governor and council to ask the British Parliament to pass an act affording facilities for voluntary commutation, by making provision for replacing the quints which would be lost to the colonial treasury thereby, and for obviating the necessity of holding " clergy reserves " out of any part of the regranted lands. This request was acceded to by the British authorities, and in 1822 provisions along the lines desired were incorporated in a bill dealing with Canadian affairs. The bill was passed without difficulty, and went on the statute books as " An Act to regulate the Trade of the Province of Lower and Upper Canada, and for other purposes relating to the said Provinces." ^ This enactment, which is commonly known as the Canada Trade Act, contained two important sections embodying the first legislative step toward the abo- lition of the feudal system in Canada.* 1 31 George III, c. 31, § xxxvi. 2 cf_ below, p. 224. 2 3 George IV, c. 119. The sections of this act relating to the commutation of land tenure are printed in Edicts, Ordinances, Declarations, and Decrees relative to the Seigniorial Tenure (Quebec, 1852), 290-291. * Sections xxxi-xxxii. CHAPTER XII. ABOLITION OF THE SEIGNIORIAL SYSTEM. It was the design of the Canada Trade Act of 1822 to make possible the voluntary commutation of the tenure of lands held en seigneurie. After reciting the fact that doubts had arisen whether the tenure of lands held " in fief and seigniory " could legally be changed, the act provided : " If any person or per- sons holding any lands in the said province ... of Lower Can- ada ... in fief and seigniory, and having legal power and authority to alienate the same, shall at any time from and after the commencement of this act, surrender the same into the hands of His Majesty . . . and shall by petition . . . set forth that he ... is desirous of holding the same in free and com- mon socage, [the governor of the said province] . . . shall cause a fresh grant to be made to such person or persons of such lands to be holden in free and common socage, . . . sub- ject nevertheless to payment ... of such sum or sums of money as and for a commutation for the . . . dues which would have been payable to His Majesty under the original tenures." It further provided that no " clergy reserves " should be retained out of the lands whose tenure was commuted in this way, and made provision for a like commutation of tenure in the case of lands held en censive in the seigniories owned by the crown. ^ The provisions of this act effected very little. It offered facilities for the commutation of the tenure of seigniories, and of that comparatively small category of en censive holdings comprised within seigniories belonging to the crown ; but it made no provision for the commutation of the tenure of lands held en censive within the other seigniories, although the per- 1 3 George IV, c. 119, §§ xxxi-xxxii. 224 ABOLITION- OF THE SEIGNIORIAL SYSTEM. 225 sons who desired a change of tenure were the habitants rather than the seigniors. Three years later an attempt was made to remedy this defect in the act. In 1825 the British Parliament passed the Canada Trade and Tenures AcX.} designed partly to readjust the trade relations of the two provinces of Upper and Lower Canada, and partly to supplement the previous land-tenure legislation of the latter province. The act of 1825 reenacted the provi- sions of the act of 1822, and went on to provide that, when a seignior obtained a commutation of the tenure of his seigniory, he should be bound to afford his habitants an opportunity to secure a like commutation of their holdings. It also made pro- vision that any seignior who had effected a commutation of his dues with"" the crown should be bound, " when thereunto re- quired " by any of his censitaires or by any persons who held a litre de fief, en arrih'efief, or a titre de cens, to consent to grant to such censitaires " a commutation, release, and extin- guishment of and from the droit de qiiint ... or droit de lods et ventes,'' as the case might be, and from " all other feudal and seigniorial rights and burdens " to which such censitaires and their lands might be "subject or liable, to such seignior . . . for a just and reasonable price • . . , which price," con- tinues the act, " in case the parties concerned therein shall differ respecting the same, shall be ascertained and fixed by experts, to be in that behalf nominated and appointed accord- ing to the due course of law in the said province." ^ Instruc- tions were sent to the governor-general that the commutation of the tenure of seigniories should be effected on a basis of five per cent of the value of the seigniory, a rate purposely made low "as an inducement to the seigniors to carry into effect a change of tenure from which considerable public advantage" might be anticipated.^ 1 " An Act to provide for the Extinction of Feudal and Seigniorial Rights and Burdens on Lands held a Hire de fief z.v\A a titre de cens, in the Province of Lower Canada ; and for the gradual Conversion of those Tenures into the Tenure of Free and Common Socage; and for other purposes relating to the said Province" (6 George IV, c. 59). ^ Section iii. 8 Bathurst to Dalhousie, August 31, 1825, Correspondence between the Colonial 226 ABOLITION OF THE SEIGNIORIAL SYSTEM. On the receipt of these instructions, the governor-general issued a proclamation stating the main provisions of the Trade and Tenures Act, and asserting that seigniors might take ad- vantage of these provisions on very hberal terms.^ Apparently, however, the proclamation met with little response; for on June 19 of the same year (1826) the governor reported to the British authorities that, while there were before him some few applications for the commutation of the tenure " of houses and lots in Quebec city," it would " probably be a considerable time " before the proprietors of seigniories would " come for- ward to avail themselves of the benefits of the measure." They were, he went on to declare, afraid to ask to have their tenures altered lest the habitants should also take advantage of the pro- visions of the act and demand a commutation of their dues to the seigniors on the same low basis. The seigniors, he said, were not at all averse to commuting their own dues to the crown on a five per cent basis, but they were not willing to give their habitants any such favorable terms ; still, if the crown treated them generously in the interest of the " public advan- tage," they could scarcely hope to avoid giving somewhat generous terms to their habitants in turn. Furthermore, in arranging a commutation with the crown, the seignior would be obliged to have his seigniory valued, and it would of course be to his interest to have it appraised at as low a figure as pos- sible ; when it came to commuting the dues of lands held by his habitants, however, it would be to his interest to claim for his seigniory as high a value as possible. This conflict of interests, concluded the governor, served to deter the seigniors from seeking the benefits afforded by the act.^ Another flaw in the Trade and Tenures Act lay in the fact that the five per cent commutation rule was to be applied to all seigniorial lands, whether rural or urban. Considerable portions of some of the seigniories were now comprised within the municipalities of Quebec, Montreal, and Three Rivers ; and Office and the Governors of Canada relative to the Seigniorial and Feudal Tenure (1853), 24-25. 1 Quebec Official Gazette, April 20, 1826, p. 380. 2 Dalhousie to Bathurst, June 19, 1826, Correspondence between the Colonial Office and the Govertiors of Canada, etc., 25-26. ABOLITION- OF THE SEIGNIORIAL SYSTEM. 227 as these lands naturally changed hands more often than rural holdings, the mutation fines payable to the crown accrued more frequently. To place these lands on the same basis as rural prop- erty was obviously unfair to the holders of the latter ; accord- ingly, Governor Dalhousie promptly pointed out to the home authorities that a distinction should be made between the two classes of lands. ^ In response, instructions were given that a double rate — ten per cent on the gross value of the lots — should be exacted in commuting the dues of lands lying within the limits of municipalities.^ In the same year Dalhousie received further orders that, since the act of 1825 "contemplated the entire extinction of the feudal tenure in Lower Canada," all future grants within the limits of seigniories owned by the crown were to be made in free and common socage and not en censive. He was asked, however, to make such reservations of timber, minerals, etc., as had usually been made in the old grants.^ While the wording of these instructions did not preclude the colonial authorities from making en censive grants out of the waste lands of the province not comprised within the crown seigniories, the spirit of them, especially as shown by the statement that the colonial office wished to see the complete extinction of feudal tenures in Lower Canada, seemed to dictate that waste lands should be given out only in free and common socage. A few years later (1830) the governor-general, Lord Aylmer, asked for definite instructions on this point. In his communication he laid stress on the fact that the policy of refusing to grant waste lands en seigncjirie or en censive would be unfair to the great mass of the population. " I would here take leave to remark," he wrote, "that the great majority of the inhabitants of Lower Canada hold their lands under the seigniorial tenure, to which they are much attached ; and that, in denying them the power of acquiring crown lands under that tenure, they are virtually excluded from the market when crown lands are put up for sale. Nothing can more fully ^ Dalhousie to Bathurst, June 19, 1826, Correspondence, etc., 27. 2 Bathurst to Dalhousie, August 31, 1826, Ibid. 8 October 30, 1826, Ibid. 28. 228 ABOLITION OF THE SEIGNIORIAL SYSTEM. establish the fact of the predilection to which I allude than the extremely rare occurrence of instances of French Cana- dians applying for a commutation of tenure from the seigniorial to the tenure of free and common socage. Upon the whole question I have been given to understand that the granting of the power to acquire crown lands on the seigniorial tenure would be considered a very gracious proceeding towards the Canadians of French extraction." Lord Aylmer therefore asked that, if possible, instructions might be given him making clear his authority, despite the prior orders of 1826, to give purchasers of waste crown lands the option of receiving their titles under either the old or the new form of tenure.^ To this request the authorities of the colonial office made reply that, since the intention of the Trade and Tenures Act of 1825 was clearly to provide for the gradual extinction of the old system, they could not properly instruct His Majesty's representative in Canada to take any course which would assist in the perpetuation and extension of it. Since ParUa- ment had passed the act of 1825, Parliament alone, they said, could give the authority which Lord Aylmer desired, either by repealing the act in question or by passing an amending act. In the same communication the authorities expressed a desire that a further attempt should be made to reconcile the people to the new tenure. " If the mind of the people," wrote Lord Goderich, " can be reconciled to the change, a very considerable object will be gained, because the lands of the province will thus be delivered from the absurd and injurious incidents of the feudal tenure." 2 Matters, therefore, remained as they were. Meantime peti- tions addressed to Parliament began to come to the governor- general from various quarters, praying that those provisions of the Trade and Tenures Act which related to the commutation of the tenure of lands might be repealed. The most important of these petitions was one from the House of Assembly of the province, based upon certain resolutions passed by that 1 Aylmer to Murray, December 19, 1830, Correspondence, etc., 28-29. 2 Goderich to Aylmer, March 13, 1831, Ibid. 29-30. ABOLITION OF THE SEIGNIORIAL SYSTEM. 229 "body in the latter part of March, 183 1. After a full discussion of the matter in committee of the whole, the assembly had unanimously adopted the following resolutions : — "That the introduction of English law into certain parts of this province by the act 6 George IV, c. 59, has introduced the greatest confusion into all parts of the province by destroying acknowledged rights and by affording facilities for fraud and oppression. " That the law of England as introduced in certain parts of this province ... is opposed to the feelings of the inhabit- ants, incompatible with their education and habits of life, and has been forced upon them contrary to their rights, in- terests, and desires. " That the said law ought to be repealed." ^ These resolutions, embodied in a petition, the governor-gen- eral sent to the home authorities in the course of the following month. In transmitting them he drew attention to the fact that the upper and lower houses of the colonial legislature enter- tained very different views regarding the act in question, and suggested that the appointment of a commission from England to study matters on the spot might be found advisable.^ Before this communication reached England, however. Parliament had passed an act amending the statute of 1825 in its objectionable provisions. This new enactment, entitled " An Act to explain and amend the Laws relating to Lands holden in Free and Common Socage in the Province of Lower Canada, and for other purposes therein mentioned, " gave the provincial legisla- ture permission to make such laws in relation to the mode of descent, alienation, and tenure of socage lands as might seem desirable.^ It was hoped, apparently, that, if the incidents of socage tenure were somewhat altered, the people would be reconciled to the general change in tenure. When the provincial legislature again met in December, 183 1, the lower house proceeded to action as if the imperial 1 Lower Canada, Assembly Journals, March 24, 1831. 2 Aylmer to Goderich, April 7, 1831, Correspondence, etc., 30. 8 1&2 William IV, c. 20. This act was passed on March 30, 1831, and was officially promulgated in the Quebec Gazette of September 22 following. 230 ABOLITION OF THE SEIGNIORIAL SYSTEM. act of the preceding March had given the colonial authorities a virtual right to repeal obnoxious provisions in the act of 1825. It introduced a series of resolutions setting forth the claim that the Trade and Tenures Act was in violation of the guar- antees given in the Articles of Capitulation of 1760, the Treaty of Paris of 1763, the Quebec Act of 1774, and the Constitu- tional Act of 1 79 1, in all of which the inhabitants had been assured of " a right to grants of sufficient portions of wild lands held from the crown a titre de fief, subject to the customary dues, and on conditions of cultivation and residence." The effect of the act of 1825, asserted the assembly, had been to deprive the people of this right by " vesting the said lands in the seignior, to dispose of them on such terms and conditions " as he might think fit, and at the same time by subjecting those who might settle thereon to laws with which the great majority of the people of the province were unacquainted, and which were " utterly unsuitable to their circumstances, and repugnant to their feeling and usages." The provisions of the law of 1825 were, it concluded, "contrary to the established rights of the inhabitants of the province, to the extension of settlement, and to the general prosperity." ^ These resolutions were adopted with little or no dissent, and a bill was forthwith introduced providing for the repeal of those clauses in the act of 1825 which had " provided for the commu- tation of lands heldi titj'e de fief sxid a titre de cens to be held in free and common socage subject to the laws of England." During the month of January, 1832, this bill had its three read- ings in the lower house, and on February i was sent to the upper house or Legislative Council.^ This body, however, promptly refused concurrence, ostensibly on the ground that it was not within the power of the provincial legislature to repeal the provisions of the imperial act in question, but only to vary the incidents of the tenure which the act sought to establish.^ 1 Lower Canada, Assembly Journals, January 28, 1832. - The legislature of Lower Canada was at this time composed of two houses, — an upper house, or Legislative Council, the members of which were nominated by the crown, and a lower house, or Legislative Assembly, the members of which were elected by the people. 3 Lower Canada, Council Journals, February 12, 1832. ABOLITION- OF THE SEIGNIORIAL SYSTEM. 23 1 Baffled in this direction, the assembly turned to the governor- general with " an humble address " praying that, until such time as the repeal of the provisions in question could be secfUred, commutation of the tenure of seigniories should be granted only vi^ith a reservation protecting the inhabitants in their " ancient right to demand from the seigniors concessions of land at the accustomed rates and dues." The address asked further that the same reservation be made in all socage grants given out of the waste crown lands of the province.^ The governor expressed his regret that the shortness of the time intervening before the end of the session prevented his bestowing upon the subject the attention necessary to a decision, but promised to give it " care- ful consideration before the next session." ^ When the assem- bly reconvened, however, its request was firmly negatived by the chief executive, who informed the members rather curtly that, in every instance in which he might be called upon to give effect to the Canada Tenures Act, he would not fail " to require the complete fulfilment of the law."^ The law, it may be said, re- quired the commutation into socage tenure to be made without any reservation whatsoever. Here the whole matter rested during the three ensuing years, the assembly contenting itself, meantime, with requesting returns showing the number of applications for commutation whether by seigniors, holders of sub-fiefs, or habitants, and giving a list of all " oppositions, remonstrances, or memorials which may have been presented." * These returns, which were duly forthcoming in the spring of 1833,^ disclose the fact that very few serious applications for the commutation of the tenure of seigniories under the provisions of the act of 1825 had been received, and that down to the date on which the returns were presented a commutation of tenure had been effected in two cases only.^ In the early part of 1834, however, the assembly adopted the 1 Lower Canada, Assembly Journals, February 16, 1832. 2 Ilnd. February 25, 1S32. ^ Ibid. December 7, 1832. * Ibid. November 24, 1832. ^ Ibid. March 22, 1833. ^ These were the seigniories of Ste. Anne de la Perade and Beauharnois, the tenures of which were commuted on December 28, 1830, and March 10, 1833, respectively. See Ibid. 1 832-1 833, Appendix. 232 ABOLITION OF THE SEIGNIORIAL SYSTEM. famous Papineau Resolutions, ninety-two in number, which made a violent remonstrance against the policy of the executive authorities in general.^ Seven of these resolutions were devoted to a condemnation of the existing policy in relation to land ten- ure.^ In one of them the assembly laid down its future course of action by declaring : " It is the duty of this house to persist in asking for the repeal of the Canada Tenures Act, and until such repeal shall have been effected, to propose to the other branch of the provincial parliament such measures as may be adapted to weaken the pernicious effects of the said act."^ No action appears to have been taken along this line during the session of 1835 ; but in the following year the assembly re- adopted its resolutions of four years previously,* and passed a bill similar to that which had been thrown out by the Legislative Council in 1832.^ There was no expectation on the part of members of the as- sembly that the council would pass this bill, nor did it do so. The governor-general, however, was very anxious that some compromise should be effected, and to this end had his law officers make a report to him on such a possibility. This report emphasized the crux of the whole difficulty very well indeed. "There is," it ran, "every reason to hope that, whenever a better understanding may be established between the assembly and the council, there will be no objection on the part of the former to pass some measure for the gradual discharge of lands from feudal duties and services, if not in a manner obligator}'- on the seigniors, at least by voluntary agreement ; and whenever such measure may be passed, we have no hesitation in declaring that, in our opinion, the Tenures Act of 1825 should be repealed, of course making it a condition of the repeal that all titles and advantages acquired under either of the acts are to be held valid." s This report was undoubtedly right in declaring that the main difficulty in the way of a proper settlement of the whole ques- 1 These resolutions are printed in Kingsford, History of Canada, ix. 544-554. 2 Resolutions 56-62. ^ Resolution 62. * January 28, 1832. See above, p. 229. * Assembly Journals, March i, 1836. ^ Report of the Commissioners, 1836, ch. ii. § xx. ABOLITION OF THE SEIGNIORIAL SYSTEM. 233 tion of tenures lay in the antagonism between the two houses of the legislature, or rather, perhaps, in the antagonism of the lower house to both the upper house and the governor. It is not necessary here to detail the course of events that placed these different organs of government in a state of hostility which clogged the wheels of administration in such a way that it took an armed conflict to set them free. There were, of course, causes of difference even more important than the question of land-tenure laws. The root of the whole difficulty lay in the desire of the assembly to control the executive and to have the membership of the council made elective and not appointive. Deeper still, however, the conflict was between the French- speaking majority of the provincial population, which absolutely controlled the assembly, and the English-speaking minority, which just as absolutely controlled the governor, the governor's council, and the Legislative Council, or upper house of the legislature.^ It was, as Lord Durham afterwards remarked, a case of " two nations warring in the bosom of a single state," a conflict not of principles but of races.^ Since the British conquest many of the seigniories had passed from French into English hands. English settlers with means came to the colony and bought out seigniories, and English merchants of Quebec and Montreal frequently did the same. The new seigniors were often hard masters, enforcing the seigniorial dues and services to the letter, and calling freely — and usually with success — upon the courts for assistance in this direction. They looked upon their seigniories as means of profit, whereas the seigniors of the old regime had been forced to regard them- selves merely as royal agents for the upbuilding of the colony, as trustees of lands held for the use of future settlers and for the sons of the people. The habitant therefore disliked his new master, and desired that he should have no such favor before the law as the right to obtain, for a small sum, absolute property in the seigniory. ^ For a discussion of the course of events during this decade of political conflict, see Kingsford, History of Canada, vol. viii ; Christie, History of Lower Canada, vols, iii-iv ; Bradshaw, Self-Government in Canada, chs. ii-iv. "^ See below, p. 237. 234 ABOLITION OF THE SEIGNIORIAL SYSTEM. The church, too, disliked the incoming of the English seign- iors ; for most of them were Protestants, and hence not only paid no tithes themselves, but were ready to subgrant lands to Prot- estant settlers, who also would pay none. By this freedom from the tithe and from the necessity of observing the holy days of the church, the Protestant settler had a great economic advantage in the country ; and by working his land more intelli- gently than his Catholic and French neighbor he became so much more prosperous that the habitant was jealous of him and fre- quently tried to drive him away by petty persecution and boy- cott. The new English settler, moreover, turned his attention to the growing of new products, notably hemp, and in this policy the authorities encouraged him ; but as hemp paid no tithe the church promptly frowned upon its cultivation by the habitant, despite the fact that it could be made to yield a good profit. Another class of men who opposed any interference with the old order of things were the notaries. Under the seigniorial system there had been no regular registration of deeds and titles ; every transaction relating to land had to be made before a notary, who recorded the sale or mortgage, as the case might be, and gave copies of the record to the parties concerned. Since this system brought the notaries both prestige and profit, it was only natural that the new policy, which greatly simplified the making of transactions relating to real property, should be opposed by this class of men ; and, as the notaries were numer- ous and influential, their opposition of course carried great weight with the people, especially since they insisted that the new law was all in the seignior's favor. One or two instances of their antagonism are conspicuous. It happened, for example, that in the same year in which the Canada Tenures Act was passed (1825) a charter had been given to the British American Land Company, an organization of English capitalists formed for the purpose of taking up large blocks of waste crown lands and settling them with immigrants from England.^ Taking ad- vantage of the coincidence of date, the notaries throughout the province hastened to suggest that both act and charter were 1 British Parliamentary Papers, Papers relating to Lands in Canada (1837). ABOLITION- OF THE SEIGNIORIAL SYSTEM. 235 parts of a joint scheme for the entire anglicizing of Lower Canada. Again they took up as a substantial grievance the commutation of tenures, although in reality the policy had been pursued to very slight extent ; and by flaunting it as an issue before the people many of them obtained seats in the assembly.^ t Finally, the habitants were as a class showing signs of rest- lessness and discontent during the earlier thirties. Under the influence of the French law of succession, their domains had been divided and subdivided until a holding, in the peculiar shape which it retained, would scarcely have sufficed to support a family even had the habitant adopted up-to-date methods of cultivation. This he did not do : his methods were for the most part those of his great-grandfather of the old French epoch. Fertilization of the land was rare; systematic rotation of crops would have been most difficult on the narrow strip of land which he held ; and implements showed little or no improvement. If anything, the habitant was at this time worse off than he had been before the conquest ; for, while his average holding was much smaller, neither his seignior nor his church had in the least relaxed its demands upon him. The maintenance of his numerous progeny — for large families were still the rule — was to him an uphill task, and the loyal attempt at its accomplishment too often made him a spiritless drudge. No wonder, then, that he became an easy prey to the plausible sophistry of his leaders, who exploited him to their own political advantage. The antagonism of the two arms of government representing the two races in the province came to a climax in 1836, when the assembly definitely refused to grant the funds necessary for the carrying on of the administration. A commission of three, sent over from England under the chairmanship of the Earl of Gosford, investigated the situation, and, according to its report, found the assembly wholly in the wrong. Acting upon this report, the British Parliament, in the spring of 1837, passed a series of resolutions introduced by Lord John Russell, declaring that it was advisable to curtail the powers of the ^ Cf. Bradshaw, Self-Governmetit in Canada, 62-63. 236 ABOLITION OF THE SEIGNIORIAL SYSTEM. assembly by providing ways and means of financing the provin- cial administration without the necessity of its assent. With this threat held before it, the assembly was reconvened in the hope that its members would show a more compromising spirit ; but by an overwhelming majority it declined to recede a single jot from its former stand. It was accordingly dissolved without further ado, and the last parliament of Lower Canada passed into history. Before the British Parliament could adopt any measure based upon the Russell resolutions, constitutional opposition on the part of the assembly had given place to armed opposition on the part of the followers of the assembly in the province. Passive resistance had given way to active, and the rebellion of 1837-38 engaged the attention of the executive authorities both in the colony and in the mother country. ^ For a time the revolt looked ominous enough, but being poorly organized and miserably managed by those who had it in charge, it was suppressed by the authorities without great difficulty. Some of the leaders fled to the United States on the first reverse, leaving the hapless habitants to shift for themselves as best they might. The rising was not, however, without far- reaching results ; for it drew the attention of the British authori- ties to the gravity of the Canadian situation, and caused them to seek fuller information before legislating further for Lower Canada. To this end they decided, in 1838, to send out to the colony a high commissioner with dictatorial powers, who was to assert the supremacy of the law, to hear complaints from all parties, and to recommend to the home authorities some plan of government for the province under which internal conflicts might be avoided. For this most difficult and dangerous task the British govern- ment chose John George Lambton, first earl of Durham, a man whose genius, experience, and disposition seemed eminently to qualify him for the work in hand. Durham arrived in the 1 For the course of events during the year 1837-38, see Christie, History of Lo7ver Canada, vol. iv ; Kingsford, History of Canada, vol. ix ; Dent, The Upper Canadian Rebellion; Lindsey, William Lyon Mackenzie ; Richardson, Eight Years in^ Canada; Theller, Canada in i8jy—j8j8; Read, Rebellion of iS^j. ABOLITION- OF THE SEIGNIORIAL SYSTEM. 237 colony during the early summer of 1838, and having taken what he deemed to be necessary measures for the strengthening of his own authority in the province, proceeded to make an ex- haustive study of the various grievances against which the assembly had before its dissolution complained so loudly and so long. Among other things, of course, the workings and the future of the seigniorial system of land tenure came in for his lordship's attention. The study was necessarily a cursory one, but it was conducted under the supervision of a man surpassed by none of his contemporaries in power of quick analysis or in ability to crystallize data into accurate generalizations.^ The results of the whole investigation, together with recommendations as to the future policy of the home government, were in 1839 presented to Parliament in Durham's famous " Report on the Affairs of British North America." ^ Durham recognized very clearly the wisdom of the British authorities in seeking the extinction of the old French system of land tenure. He pointed out that, while the rural population of the province was increasing steadily, the amount of cultivated land supporting this population was not increasing in the same proportion. According to an estimate made in 1826, the popu- lation of the various seigniories had more than quadrupled since the loyalist immigration, that is to say, during the forty-two years intervening between 1784 and 1826; but in this interval the quantity of land under cultivation in the province had increased by only one-third or thereabouts. Since 1826, as Durham had every reason to suppose, the same anomaly of de- velopment had been going on. The time was past, he declared, for continuing the maintenance of a system which encouraged this condition of affairs. He showed that the French rules of succession to real property had caused the oblongs of land to be so cut up into long narrow strips that healthy agricultural progress was being strangled, and pointed to the northern shore 1 The only biography of Lord Durham is by Stuart J. Reid, The Life and Letters of the First Earl of Durham (2 vols., London, 1906). 2 Report on the Affairs of British North America (London, 1839), " by the Earl of Durham, Her Majesty's High Commissioner," etc. 238 ABOLITION OF THE SEIGNIORIAL SYSTEM. of the St. Lawrence, where from Quebec to Montreal the alluvial land was shredded into mere ribbons, often with a river frontage of a few rods and a depth of a mile or more. Along this river-front ran the main road, — the carotid artery of colonial intercourse, — and along the road the habitants had built their dwellings, thus " giving the country of the seigniories the appearance of one never-ending, straggling village." The people were thus forced, he added, to devote their energies to the pursuit of what was in his apinion " the worst possible method of small farming." The commissioner saw, however, that the faults were not all on the side of the habitant. A good deal of the difficulty he very properly laid at the door of the Englishmen who had bought out seigniories from their French-Canadian owners, and had then proceeded to exercise their seigniorial rights in a manner "which the Canadian," said he, " reasonably regards as oppressive." Differing from his dependents in race, religion, and language, the new seignior needed to exercise much tact, friendHness, and forbearance in order to get along amicably with them. Too often, however, he displayed none of these qualities. Hence it was in the general estrangement of the two races that the report found one real cause of difficulties regard- ing the land-tenure system. Lord Durham did not condemn the advocates, notaries, and other leaders who had stirred up the people against the pol- icy of the administration ; he regarded it as an inevitable consequence of the grant of representative, but not respon- sible, government that popular leaders should become dema- gogues. The system of seigniorial land tenure, he believed, had passed its day of usefulness and should make way for a more suitable policy. He did not believe, however, that any radical steps toward its abolition should be undertaken by the British Parliament, but thought that the whole problem should be left for the new colonial government to solve for itself. In general, Durham was disposed to rely upon the " efficacy of reform in the colonial constitutional system for the removal of every abuse in administration which defective institutions have engendered." In a word, he thought that if the proper relation ABOLITION OF THE SEIGNIORIAL SYSTEM. 239 between the elective and the appointive organs of colonial gov- ernment were permanently determined in the way which he pro- posed, the various grievances would in time right themselves. One of Durham's entourage, Charles Duller, who ably assisted his lordship in gathering information and data regarding the land-tenure system in Lower Canada, outlined a definite scheme for the commutation of seigniorial lands, according to which the annual dues owing by either seignior or habitant should be made an annual rent charge on the land, which annual charge might at any time be commuted to a lump sum on a reasonable basis. It is interesting to note that this plan was substantially followed by the colonial legislature when it undertook to arrange a scheme of commutation some fifteen years later. As a result of Durham's general recommendations, the British Parliament, in 1840, passed the Canada Act, more commonly known as the Act of Union, because by it the two provinces of Lower and Upper Canada were united, with equal represen- tation in a joint legislature.^ This new body met in the follow- ing year, and lost little time in taking up the seigniorial problem for solution. Its first step was to present to the governor- general of the now united provinces an address asking for the appointment of an impartial commission to examine the griev- ances of landholders in Lower Canada and to report some definite plan of remedy .^ To this request Governor Bagot' acceded, naming Messrs. Buchanan, Taschereau, and Smith as members of the commission desired.^ These gentlemen made a very careful study of the situation, and though some- what hampered, as they declared, by the fact that they had not been vested with power to compel the attendance of witnesses or to enforce the production of papers, they succeeded in laying before the legislature, in October, 1843, an exhaustive report of nearly forty closely-printed pages containing a considerable ^ 3&4 Victoria, c. 35. This act may be conveniently found in Houston's Con- stitutiotial Documents, 149-173. 2 Canada, Assembly Journals, September 7, 1 84 1. 8 The governor first appointed Messrs. Vanfelson, McCord, and Doucet ; but for some reason these gentlemen declined to serve. 240 ABOLITION OF THE SEIGNIORIAL SYSTEM. amount of interesting and valuable information relating to the subject of their inquiry. ^ The report of the commission of 1843 began by tracing at some length the vicissitudes of the feudal system since its first establishment in Canada, and then proceeded to analyze in a gen- eral way the various legal rights and duties of the seignior and the habitant under the French dominion. This analysis is toler- ably accurate and just to both parties, but the commissioners in some cases displayed a disposition to generalize too broadly from the data at hand. They gave it as their opinion that at the time of the British conquest the Arrets of Marly (171 1) were still in full force, and that, in consequence, the seignior was under legal obHgation to subgrant his vacant lands to whoever should apply for them, at the rate of dues customary in the neighborhood. When he refused to do so, the governor and intendant were, under the old dispensation, empowered to step in and make the grant ; but in the exercise of this power who were the successors of these French officials } To this question the commissioners replied that, since the reestabHshment of French civil law by the Quebec Act of 1774, the power had vested first in the court of Common Pleas and later in its successor the court of King's Bench, to which, on its establishment, certain spheres of juris- diction formerly belonging to the court of Common Pleas had been assigned. The Canada Tenures Act of 1825 had thus, they maintained, unfairly " given to the seigniors an absolute and unconditional property in the ungranted portions of their fiefs, in direct violation of the wise and beneficent intentions of the arrets of 171 1 . . . by which seigniors are bound to grant lands to such persons as apply for them, subject only to the accus- tomed rates and dues."^ ^ " Report of the Commissioners appointed to inquire into the state of the laws and other circumstances connected with the Seigniorial Tenure," 1843, Titles and Documents, i. 45-91. A number of interesting documents are printed as an appendix to this report {Ibid. 92-210). 2 The assertion of the commissioners that the judicial powers of the governor and intendant of the old regime had passed to the high courts of the province is of doubt- ful validity. Certainly neither the court of Common Pleas nor the court of King's Bench had ever attempted to exercise any powers on the ground that they were the successors of these officials. Cf. Angers, Resume de la Plaidoirie, etc. (1855), 93 ; and see above, p. 220. ABOLITION OF THE SEIGNIORIAL SYSTEM. 24 1 The commission further affirmed that the people of the colony- had certain well-established rights in the ungranted lands of seigniories, — rights which the governor and intendant had stood ready to enforce ; that the British authorities had on more than one occasion pledged themselves to the observance and preser- vation of those proprietary rights enjoyed by the inhabitants of the colony at the time of the conquest ; and that the courts of law had the power to enforce these rights in behalf of the people. In 1825, however, said the commissioners, the Canada Tenures Act had offered to permit the seigniors, for a small consideration, to acquire absolute property in their ungranted lands, thus defeating the right of the people at large to share in these lands. Passing to a consideration of the "present working of the feudal system in the province," the report attempted to show that this form of tenure was "in many respects vicious and . . . productive of extreme injury." It " paralyzes the whole country by its influence," ran the vehement words. "No system can be devised better calculated to keep a man in perpetual subjection. Under it, all the generous emotions of his nature are stifled. Thus he gradually becomes impoverished ; he toils through existence without the hope of relief, and transmits to his posterity a worthless inheritance. Under the operation of such a tenure, his right of property may become a mere delu- sion ; as a moral being, he is degraded, and his position is one of perpetual dependence." The present system, moreover, " is no longer suited to the spirit of the age nor the actual wants of the population ; it is the relic of a barbarous age, and, in its practical operations, antagonistic to the growth and permanency of free institutions." Of all the anathemas passed upon the feu- dal system in Canada from its first establishment to its abolition, whether by investigating officials, commissions, or legislative bodies, none surpasses the foregoing in vigor and virulence. In fact, the report of 1 843 breeds suspicion by the very violence of its antagonism to the system. The commission recommended, in conclusion, that the legis- lature should proceed to the complete extinction of the seign- iorial tenure, indemnifying the seigniors for the loss of such 242 ABOLITION- OF THE SEIGNIORIAL SYSTEM. dues as could be shown to have a legal basis, but bearing in mind that the position of the seignior, in relation to his un- granted lands, was that of a trustee and not that of an owner. Three different schemes for effecting the indemnification of the seigniors were outlined: (i) that the habitants should pay- to the seigniors a capital sum, whereof the annual cejis et rentes would be equivalent to interest at the rate of six per cent, to- gether with one lods et ventes ; (2) that they pay an annual rent charge, to be agreed upon in lieu of all feudal dues and services ; (3) that they pay one-fifth of the value of their holdings (deter- mined by arbitration), in full commutation of all dues and ser- vices. The commissioners did not advise the adoption of any one of these three plans, but pointed out the advantages and disadvantages of each. As a result of the report, a bill was introduced into the assembly, and was passed by both houses during the year 1845 under the title, "An Act the better to facilitate optional Com- mutation of the Tenure of Lands eji roture in the Seigniories and Fiefs of Lower Canada, into Wi-aX oi franc aleu rotiirierr ^ Some four years later this act was amended in a few slight par- ticulars.^ These two acts simply provided that the habitant might arrange with his seignior to commute his feudal dues and services for a lump sum mutually to be agreed upon ; and that upon payment of such sum the habitant would receive from his seignior the grant of his holding en franc alen roiurier, the form of tenure which, during the French period, had most nearly corresponded to the English system of tenure in free and common socage. This particular provision was intended to re- tain the lands under the French rules of inheritance ; for, except in regard to this matter, the two forms of tenure were substan- tially the same. Up to the time when the first of these acts was passed (1845), the habitant could not arrange for the commutation of his dues to his seignior unless the seignior had first arranged for the commutation of his own dues to the crown ; and very few of the seigniors had chosen to do this. In fact only nine seigniorial commutations had been arranged between 1825, when permis- ^ StaUites of Canada, 8 Victoria, c. 42. ^ Ibid. 12 Victoria, c. 49. ABOLITION OF THE SEIGNIORIAL SYSTEM. 243 sion to commute was given, and 1846, a year after the new law was passed.^ Nine commutations in twenty years scarcely prove the existence of any strong desire on the part of the seigniors to take advantage of the privilege afforded them. Although the acts of 1845 and 1849 were designed to make possible the commutation of the tenure of holdings within seign- iories which had not yet been commuted, there were several reasons for doubting that this end would be attained in any general measure. The seigniors, for instance, might be counted upon to stand out for full compensation for the loss of all dues and services which they claimed, even though the legality of some of these was not beyond question. There was, for ex- ample, the corvee, which in many cases had not been exacted for several years ; the right oifoiir banal, which had never been en- forced at all ; and the right of the seignior over navigable rivers, which had been claimed by some to be an incident of seigniorial judicial power and hence to have been abrogated with the latter after the conquest. Until seigniors and habitants could agree as to what seigniorial claims were valid and what were not, it would be very difficult to reach any accord in regard to the sum to be paid in commutation of all dues. Then, too, even if the amount could be satisfactorily agreed upon, most of the habitants were so poor that it seemed impossible for them to get sufficient funds to pay it in a lump sum. A few of them were doubtless in positions to take advantage of the terms of the acts ; but, as the lapse of a few years served to show, any general commutation of the smaller holdings from tenure en censive to tenure in free and common socage seemed to be pre- vented by the two obstacles just mentioned. As time went by, this view impressed itself upon the members of the legislature. It was felt strongly that commutation must be made compulsory in the case of both seignior and habitant ; that, if necessary, the crown must forego the exaction of any 1 These commutations were as follows : Ste. Anne de la Perade, December 28, 1830 ; Beauharnois, March 10, 1833; Lotbiniere, December 31, 1835 5 Madawaska and Temiscouata, December 5, 1838 ; Mont-Louis, June 6, 1839 ; Perthuis, April 7, 1841 ; Riviere de la Magdeleine and Pabos, March 8, 1842 ; Anse du Grand-Etang, February 4, 1846. This list is printed in Correspondence between the Colonial Office and the Governors of Canada, etc. (1853), 37. 244 ABOLITION OF THE SEIGNIORIAL SYSTEM. jsum from the seigniors in commutation of their dues; and that ithe burden upon the habitants should be lightened as much as possible, partly by exact definition of the legal rights of the seignior, partly by permission to pay in annual instalments instead of in a lump sum, and partly by assistance out of the public treasury. 1 That a plan of commutation might be drafted along these lines, the assembly in the spring of 185 1 appointed a special committee to which it delegated this task.^ The committee, after a number of sessions and hearings, presented its report,^ together with the draft of a bill ; * but the legislation outlined was not regarded as satisfactory by the leaders of the house, and action upon it was accordingly postponed.^ In the year fol- lowing, however, a new ministry came into office ; and in the session of 1853 a government measure was introduced dealing with the question of tenures in Lower Canada. In general this measure proposed to afford seigniors compensation, amount- ing to a small fixed annual sum per arpent, for the loss of all rights, provided that such rights should be declared legal by the courts ; but all seigniorial rights and dues other than the right to this small annual rental were to be abrogated. After a spirited debate the measure passed the assembly, but was subsequently rejected by the council. This action of the upper house greatly irritated the assembly, which showed its temper by passing an address to the home authorities asking that the council be made an elective instead of an appointive body.^ The elections of 1854 made it clear that public sentiment was strongly in favor of the abolition of the seigniorial system, for a ministry pledged to accompHsh this end was established in ^ Canada, Assembly Journals, June 26, 1 850. 2 The members of this committee were the Hon. L. T. Drummond, chairman, and Messrs. Armstrong, Badgley, Boutillier, La Terriere, and Lemieux. ^ Troisieme Rapport et Deliberations dii Comite Special de P Assemblee Legislative . . . au Sujet de la Tenure Seignenriale {iS'ji). * " Acte pour definir certains droits des seigneurs et des censitaires dans le Bas- Canada, et pour en faciliter I'exercice," Ibid. Appendix A. ^ Cf. The Seigniorial Question : its present Position ( 1 8154), " by a member of the Legislative Assembly from Upper Canada" [Sir Francis Ilincks]. 8 Canada, Assembly Journals, February 14 to June 14, \%i,T„ passim. ABOLITION- OF THE SEIGNIORIAL SYSTEM. 245 power.^ After some delay caused by difficulties connected with the ministerial organization, the McNab-Morin ministry prepared and laid before Parliament a comprehensive measure providing for the complete abolition of the whole seigniorial system. The measure encountered much opposition and under- went several important amendments at the hands of the Legis- lative Council, but finally passed both houses. Under the title " An Act for the Abolition of Feudal Rights and Duties in Lower Canada," it received the viceregal assent on December 18, 1854.2 In the first place, the act of 1854 repealed entirely the acts of 1845 and 1849,^ but provided that deeds of commutation granted under them should remain in full force and should have the same effect as if the acts had not been repealed. It then made provision for the appointment, by the governor-general, of commissioners to such number as might be found necessary, who should visit all the seigniories in Lower Canada and in each draw up a schedule setting forth the total value of the seigniory, the rights of the crown therein (or, in the case of rear-fiefs, the rights of the dominant seignior), the amount of land held by each habitant, and the annual dues and charges payable therefor. With reference to this last item the schedule was to differentiate the various charges and services, estimating the annual value of those which were not already fixed in money, such as the banal rights or the reservations.* In order that the commissioners might act uniformly in preparing their schedules, certain definite rules were laid down for their guidance. In the case of dues payable in kind (grain, poultry, fruits, etc.), they were instructed to obtain the average prices of such commodities during the last fourteen years " from the books of the merchants nearest the place or in such 1 The question of the secularization of the clergy reserves was an equally impor- tant issue in this election. On the course of events during these years of high party tension in the Canadas, see Gait, Canada, i84g to i8jg ; Dent, 77ie Last Forty Years, vol. ii, chs. xxix-xxxvi ; David, Z' Union des Deux Canadas ; and Turcotte, Le Canada sous /' Union, vol. ii. 2 18 Victoria, c. 3. ^ 8 Victoria, c. 42, and 12 Victoria, c. 49. See above, p. 242, * Sections ii-v. 246 ABOLITION- OF THE SEIGNIORIAL SYSTEM. Other manner as may be thought equitable "; and in computing the annual value of personal labor (corvee) they were to follow a similar procedure.^ Since rural and urban holdings changed hands with different degrees of frequency, the com- missioners were instructed to take this fact into consideration in estimating the value of the lods et ventes, or alienation fines.^ In determining the value of the banal rights, they were to " estimate the probable decrease (if any) in the net yearly income of the seignior arising from the loss of such rights."^ The total value thus set on the lands of each habitant was to become a fixed rent upon the lands, payable upon the day and at the place at which the seigniorial dues had formerly been payable, unless the seignior and the habitant should agree upon some other time or place. Since the work of the commissioners was of the highest importance, the act gave them every facility for the proper performance of their tasks. Before beginning the work of computation in any seigniory, they were to give notice to that effect to all concerned, putting " placards in English and French at the door of every parish church in such seigniory for four consecutive Sundays," stating the place, day, and hour at which the work would begin. All parties were to have every possible facility in the presentation of their views, and the commissioners on the other hand were invested with wide powers to enforce the production of information when neces- sary. They might examine witnesses under oath, order the production of land titles, accounts, and other documents, impose fines for contempt, and command the services of all justices or other peace officers in the province.* Should a seignior or any twelve habitants challenge a com- putation, the commissioner was required by the act to submit his schedule to the revision of expert valuators, one to be appointed by the seignior, one by the habitants in general meeting, and a third by these two, unless the seignior and the habitants could agree upon the third. The fees of such valu- ators were to be paid from the public treasury.^ The governor- 1 Section vi. 1. ^ Section vi. 2. * Section vi. 5. * Sections vii-ix. ^ Section x. ABOLITION OF THE SEIGNIORIAL SYSTEM. 247 general, moreover, was empowered to select, from the whole corps of commissioners, a committee of four to act as a court of revision to hear appeals against the schedules drawn up by- individual commissioners, or against changes made by boards of expert valuators ; but this court might make alterations only when errors were clearly shown. ^ The act provided that, when the schedule for any seigniory- was completed and revised, copies of it should be deposited with the proper governmental authorities, and legal notice of such deposit be given in the official Gazette and in at least one local newspaper.2 It then proceeded : " From and after the date of the publication . . . every censitaire in such seigniory- shall, by virtue thereof, hold his land in franc aleu rotiirier, free and clear of all cens, rentes, lods et ventes, droit de banality, droit de retrait, and other feudal or seigniorial dues, except the rente constituce, which will be substituted for all seigniorial duties and charges ; and every seignior shall thereafter hold his domain and the unconceded lands in his seigniory, and all . . . real estate now belonging to him in franc aleu roturier . . . free and clear of all quint, relief or other feudal dues or duties to the crown or to any seignior dominant of whom his fief or seigniory is now held." Any reestabhshment of the feudal system was definitely prohibited by the clause," No seignior as such shall, after the said time, be subject to any onerous obliga- tion towards his censitaires, or be entitled to any honorary- rights, nor shall any land be granted by any seignior to be held by any tenure other than franc aleu roturier, or subject to any mutation fines or other feudal dues."^ Provision was further made for the creation of a special reve- nue fund to be raised by the issue of debentures, the proceeds of which were to be applied to the reduction of the fixed annual rentals set by the schedules upon the lands of the habitants. Every seignior was to receive a fixed percentage on the total amount of constituted rents established by the schedule in his seigniory, after deducting the value of the crown dues ; and by this percentage the annual rentals of all habitants were to be reduced.^ 1 Section xii. ^ Section xiii. ' Section xiv. * Sections xvii-xix. 248 ABOLITION OF THE SEIGNIORIAL SYSTEM. Finally, the act provided for the solution of a very important difficulty, — the question as to what claims of seigniors were valid at law and what were not. This was not a matter which the legislature could very well determine, or one that could properly be left to the commissioners ; for the right decision of it assumed a thorough knowledge of the Custom of Paris and of the various modifying edicts, ordinances, and decrees. Obvi- ously, the seigniors could expect compensation only for such alleged rights as might be shown to have a legal basis ; but as to the exact extent of these rights there was a wide difference of opinion. The legislature very properly decided, therefore, to make provision for the temporary establishment of a special court, to which should be referred the settlement of questions relating to the validity of seigniorial claims for compensation. The commissioners were not to complete their schedules until the decisions of this court should have been filed. ^ This special court was to consist of the chief-justice and justices of the court of Queen's Bench, together with the chief- justice and justices of the Superior Court for the province of Lower Canada, — making fifteen judges in all.^ The attorney- general of the United Provinces was instructed to draw up a list of questions covering all possible matters in dispute, while the seigniors and the habitants (acting through their counsels) were permitted to submit such supplementary questions as they might think fit. The tribunal was, in many ways, an extraordi- nary one. It was an assemblage of judges, yet the subject in hand was not a strictly judicial one ; the judges were to express opinions rather than to give judgment. There was a court, but no suitors, no issue, no evidence, no record, and no sentence. The judges were simply to examine the questions as students of legal history and to express their opinions. In the event of disagreement, a majority was to prevail. ^ Section xvi. 2 These were the Hon. Sir Louis Hippolyte Lafontaine, Bart., chief justice of the court of Queen's Bench ; the Hon. Edward Bowen, chief justice of the Superior Court ; the Hon. Messrs. Aylwin, Duval, and Caron of the court of Queen's Bench; and the Hon. Messrs. Day, Smith, Vanfelson, C. Mondelet, Meredith, Short, Morin, and Badgley of the Superior Court. The Hon, Mr. Justice D. Mondelet, being himself a seignior, abstained from attendance. ABOLITION OF THE SEIGNIORIAL SYSTEM. 249 The court met on September 4, 1855, and was duly consti- tuted. The Hon. L. H. Drummond, attorney-general, presented a list of forty-six questions covering the whole range of matters in dispute ; and on behalf of various seigniors and bodies of habitants thirty more questions were filed. It was arranged that the court should hear the arguments of counsel on the merits of the different questions ; and an imposing array of eminent Canadian lawyers appeared before it.^ Their argu- ments were exhaustive and showed a close study of the com- plicated legal points involved, especially that of Christopher Dunkin, who appeared on behalf of some of the seigniors. Although on most points the judges disagreed with him, his argument, which was lengthy, comprehensive, and a model of close legal reasoning, stands as perhaps the most scholarly and able plea ever made before any Canadian judicial body. After many sessions the Special Seigniorial Court, as it was called, was able to frame answers to all the questions submitted.^ In a few cases there was entire unanimity, but on almost every important issue one or more of the justices disagreed with the rest. The opinion of the majority was that the cens et rentes had never been made uniform ; that the seignior was under obHgation to subgrant his lands at customary rates, and hence did not hold any full property in his ungranted lands ; that the lods et ventes, the banalities, and the corvee were valid claims ; but that prohibitions and reservations, except in so far as they had been made for the protection of the seignior's obligation to the crown, were without validity. In the course of the deliber- ations, each member of the Special Court gave his individual opinions on the various questions at issue, justifying his accord with the answers agreed upon by the majority of his colleagues or his dissent from them.^ A careful reading of these opinions ^ Among the counsel were, in addition to the attorney-general (who was, unfortu- nately, prevented by illness from attendmg most of the sessions), Messrs. F. R. Angers, E. Barnard, and T. J. J. Loranger, Q. C, on behalf of the crown; and Messrs. Christopher Dunkin, R. Mackay, and C. S. Cherrier, Q. C, on behalf of various seigniors and others. ^ These are printed as Proceedings of the Special Seigniorial Court held under the authority of the Seigniorial Act of 18^4 (Quebec, 1856). ^ These opinions, or Observations, were published as public documents, but com- plete sets are now rare. For a discussion of their scope and value, see below, p. 261. 250 ABOLITION- OF THE SEIGNIORIAL SYSTEM. serves to show that each judge made a very earnest, and some- times elaborate, study of one or more of the legal phases pre- sented by the seigniorial system and its history both in France and in Canada. It was upon a basis of the majority opinions that the sched- ules of fixed rents were drawn up and put in force. As the work of compiling these in all the seigniories took time, it was some years before all had been completed and depos- ited with the proper authorities. Meantime the legislature had passed a short act changing a few provisions in the act of 1854 which had been found to need amendment, but which were of no great importance.^ In the session of 1859 the colonial par- liament appropriated the funds for the indemnification of the seigniors, and with this measure completed the work of com- mutation.2 The act of 1854 had exempted from the compul- sory provisions which it contained the seigniories held by the Seminary of St. Sulpice at Montreal, the " seigniories of the late order of Jesuits," the seigniories either belonging to the crown or held in trust by it for the Indians, and a few others which it enumerated.^ In most of these, however, commuta- tions were later effected by private agreement.'* As the act of 1854 changed the tenure of lands, not to free and common socage, but to franc aleii roturier, it did not intro- 1 "An Act to amend the Seigniorial Act of 1854" (18 Victoria, c. 3). 2 In some cases, however, the amounts were not paid over to the seigniors until as late as 1864. 3 Act of 1854, §xxxv. * After the suppression of the Jesuit order by Pope Clement XIX in 1773, the Jesuit seigniories in Lower Canada passed into the hands of the crown; but those who had been members of the order were supported by the revenues during the re- mainder of their lives. When, in 1814, the order was reestablished by Pope Pius VII, it began a movement for regaining its old estates ; but recovery was no longer possible, for much of the land had passed into other hands by purchase from the crown. In 1888, however, by the Jesuits' Estates Act, the government of the province of Quebec granted the Papal See the sum of 3 400,000 in order to obtain from the Catholic church and its orders a surrender of all their claims to the escheated lands. This measure evoked strong protest from the Protestant section of the popu- lation, and the Dominion government was called upon to disallow the act. This, however, it refused to do. While the ecclesiastical claims against the lands had no legal validity, it was found that, in an overwhelmingly Catholic community, the clerical bitterness served seriously to impair the value of such of the lands as the government still held. See Thv/zXifts, Jesuit Relations and Allied Documents, Ixxi. 392-393. ABOLITION OF THE SEIGNIORIAL SYSTEM. 25 I duce the rules of English law relating to the alienation, bequest, and inheritance of lands : these matters continued to be regulated by the rules of French law. It was therefore thought advisable that the civil laws and procedure of Lower Canada should be revised and recodified ; and in 1857 the attorney-general secured the passage of a measure establishing a commission to under- take this work. Messrs. Justices Caron, Day, and Morin, who had been members of the Special Court, were intrusted with the undertaking, and completed it with high credit in 1864. The seigniorial system in Canada had, by the middle of the nineteenth century, clearly demonstrated its unsuitability to its new social and economic environment, and by a large proportion of the people the prolongation of its existence had come to be regarded as a pubHc evil. The terms upon which the abolition was effected were, however, by most of the seigniors regarded as unfair, and it is altogether probable that, despite the compen- sation, most seigniorial properties were worth less after the passing of the act than they had been before 1854. Strong protests were made by the seigniors against the slowness with which the schedules were drawn up, and it was claimed that many commissioners prolonged their work unduly in order to increase their remuneration. The censitaires were given the option of commuting their annual fixed rentals by the payment of a lump sum, the determination of which was provided by the act. Comparatively few of them, however, took advantage of this provision, and to the present day they or their descendants continue to pay their retite constitute with more or less punctu- ality. Most of the habitants still refer to their landlord as "the seignior," though for a full half century no such title has been recognized by the laws of the province. The problem of abolition was a difficult one, but it may be questioned whether its solution was not attended with as little injustice as usually accompanies such important changes. That the Canadian legislators of 1854 were able to cut away the foundation upon which the social order of Lower Canada rested, without doing any violence to the superstructure, is a tribute alike to their moderation and to their progressive spirit. BIBLIOGRAPHICAL APPENDIX. Throughout this monograph an earnest endeavor has been made to observe the recognized canons of sound historical writing by giving definite references, page by page, to the sources from which informa- tion has been drawn. Nevertheless, it may not be superfluous to sum- marize in a general way the scope and the relative value of the various materials of which use has been made. One of the most extensive, and at the same time the most satisfactory, sources of data for the study of land tenure and the state of agriculture during the French period is the formidable collection of manuscript material commonly known as the Correspondance Ghierale. This mass of documents comprises a very large part of the correspond- ence, memoirs, reports, and returns transmitted by the various officials of New France to the home government throughout the entire period of French dominion in North America. The collection also contains many despatches from the king and minister to the governor and in- tendant of Canada ; for when the French authorities withdrew from the Western world they took with them all their confidential archives. This vast store of contemporary material is now in the archives of the Minist^re des Colonies, which are located in the attic story of the Pa- vilion de Flore, in the south wing of the Louvre. More than a score of years ago, officials of the Dominion government began the examina- tion and classification of this material for the Canadian archives under the supervision of Mr. Joseph Marmette ; but after a portion of the work had been done the project was interrupted, to be resumed some time later under the general direction of Mr. Edouard Richard, and continued till his death a few years ago. At the present time the work of transcribing the documents is again being pushed forward. A large part of the collection was first examined and the subject-matter of the documents calendared chronologically ; these calendars may be found in the annual Report on Canadian Archives (ed. Douglas Brymner) for the years 1 885-1 887, 1899- . Such of the transcripts as have been made are in the Dominion Archives (Series F), at Ottawa, and comprise at present nearly two hundred and fifty large folio volumes. 253 254 BIBLIOGRAPHICAL APPENDIX. As yet but a very small portion of this Correspondance Generate has been rendered available in printed form. Extracts from a large number of the documents have been printed in the Collectio7i de Manuscrits conte?iani Lettres, Memoires, et autres Documents Historiques relatifs a la Nouvelle- France, recueillis aux archives de la Province de Quebec, ou copies a Petranger (4 vols., Quebec, 1883-1885) ; but the accuracy of this col- lection has been seriously called in question. Some of the documents may be found printed in Pierre Margry's Relations et Mhnoirs inedits, pour servir a PHistoire de la France dans les Pays d'' Outre Mer, tires des archives du Minis tere de la Marine et des Colonies (Paris, 1865), and in his Decojwertes et Ftablissemetits des Franqais dans P Quest (6 vols., Paris, 1879-1888) ; but these papers relate mainly to discovery and exploration. A few of the more important reports are given in Henry Harrisse's Notes pour servir a P Histoire . . . de la Nouvelle- France (Paris, 1872) ; and some fragmentary extracts and incidental quotations from the more significant pieces are printed in the appendices to Francis Parkman's various works, more particularly in the appendix to his Old Regime in Cattada. Parkman, it may be added, had a large number of the more important documents in the Correspondance Generate copied for his own use ; and these transcripts are now in the library of the Massachusetts Historical Society in Boston. Many of the papers which have some bearing on intercolonial relations are included in Volume IX of the Documetits relating to the Colonial History of New York (ed. O'Callaghan and Fernow, 15 vols.. New York, 1853-1883). In 1 85 1 the Legislative Assembly of Canada ordered that such parts of the correspondence as had relation to the seigniorial system in the colony should be published for the use of its members, and of others who at that time were deeply interested in the movement for the aboli- tion of the system. Consequently a small blue-book entitled Corre- spondefice bettueen the French Government and the Governors and Intendants of Canada relative to the Siigniorial Tenure (Quebec, 1853) was published, copies being issued in both French and English. This volume appears, however, to have been compiled hastily and without proper care ; for it is not at all complete within its announced scope. The correspondence between the British government and the colonial officials relative to the land-tenure system after the conquest is preserved in the collections of the State Paper Office. It has been properly calen- dared in the annual Rep07-t on Caftadia?i Archives for the years 1890— 1893, along with the other documents in the State Paper Office relating to Canadian affairs. The Haldimand collection is similarly calendared in the annual reports for the years 1886-1889. In 1851 the Legislative BIBLIOGRAPHICAL APPENDIX. 255 Assembly of Canada ordered that such documents in this correspondence as had any relation to the seigniorial system should be transcribed and printed ; accordingly a small publication bearing the title Correspotid- ence between the Colonial Office and the Governors of Canada relative to the Seigniorial and Feudal Tenure (Quebec, 1853) was issued in both languages. A comparison with the calendars shows, however, that sev- eral important documents were overlooked by the compilers. Of equal importance with the Correspondance Generate is the collec- tion of Edits, Ordonnatices Royaux, Declarations, et Arrets du Conseil d^Etat du Roi concernant k Canada (2 vols., Quebec, 1 803-1 806; later edition, enlarged and improved, 3 vols., Quebec, 1854-1856). Of the latter set (which is the one referred to throughout this study under the general title oi Edits et Ordonnatices'), the first volume contains the Edits et Ordonnances Royaux, and the Arrets du Conseil d 'Etat du Roi relating to the affairs of New France ; the second contains the Arrets et Reglements du Conseil Superieur de Quebec, and the Ordoimances et Jugcments des Intendants du Canada, the latter comprising the period 1 705-1 759 only. The third volume, which is entitled Completnetit des Ordomiances et Jugements des Gouverneurs et Intendants du Canada, contains a large number of decrees issued by governors and intendants, as well as the commissions of these officers and of other royal officials in the colony. The collection is a most valuable one, admirably indexed both chronologically and alphabetically; and on any topic connected with the social or the economic life of the French period it is an indis- pensable source of the most useful data. It was printed in both English and French at the public expense ; but, although a large edition was published, sets are now rather difficult to obtain. In 185 1 the Legislative Assembly of Canada requested that a volume be compiled containing all the edicts, ordinances, declarations, and decrees relating directly to the seigniorial tenure ; and in the following year this request met response in the issue by the queen's printer of a stout octavo publication entitled Edicts, Ordinances, Declarations, and Decrees relative to the Seigniorial Tenure (Quebec, 1852), printed in both English and French. This collection is, however, very incomplete, for it omits many important decrees which have a direct bearing on the question with which it deals. For this reason references are made, throughout the present study, to the French edition of the general col- lection of Edits et Ordonnances rather than to this special compilation. The records of the Superior Council at Quebec have been preserved in fifty-six ponderous manuscript volumes covering the period from September 18, 1663, to April 8, 1760. Of these the records from 1663 to 256 BIBLIOGRAPHICAL APPENDIX. 1 716 have been printed \x\. Jugements et Deliberations du Conseil Souve- 7-ain de la Noia'elle- France (6 vols., Quebec, 1885-1891), a compilation which is a model of scholarly editing. The registers of the royal court of the Pr^vote at Quebec are preserved in the provincial archives at Quebec, but many volumes are lacking. These records have not yet been made available in published form, but are now being transcribed for the federal archives and will, it is hoped, be printed in due course. Meanwhile, some of the more important decisions of the court of the Pr^vot^ at Quebec may be found in J. F. Perrault's Extraits ou Prece- dents, tires des Registres de la Prevoste de Quebec (Quebec, 1824). It is beyond reasonable doubt that the Old Council {Pancien conseil), which preceded the Sovereign (Superior) Council, also kept registers ; but a diligent search on the part of various Canadian antiquarians has not served to bring them to light. It is more than likely that they were destroyed by the fire which consumed the intendant's palace in 1 713. The absence of these records is regrettable; for they would unquestionably serve to throw light upon certain phases of the seigniorial system before 1663, which, for want of reliable data, must be passed over almost untouched. The various orders in council issued by the British authorities in Canada, from the establishment of civil government in 1764 to the in- stitution of representative government in 1 791, are to be found in Ordi- nances made for the Province of Quebec by the Governor and Council since the Establishment of Civil Government (Quebec, 1767), and in Ordinances made and passed by the Governor and Legislative Council of the Province of Quebec, and now in force in the Province of Lower Ca?iada (Quebec, 1792); but these collections are not entirely com- plete. During the years 185 2-1 854 a very important pubHcation appeared, entitled Pieces et Docufnents relatifs a la Tenure Seigneuriale (2 vols., Quebec). An English edition containing substantially the same mate- rial, but differently arranged, was issued at the same time and called Titles and Documents relating to the Seigniorial Tenure. The first volume contains a number of miscellaneous documents ; but to a con- siderable extent it duplicates the small compilation of Correspondence betiveen the Colonial Office and the Governors of Canada already re- ferred to. In the foregoing pages reference has always been made to the English edition of this volume, since the documents contained in it were originally issued in that language. The second volume, which has been found extremely valuable for the purposes of this study, contains copies of the title-deeds of over three hundred of the most important BIBLIOGRAPHICAL APPENDIX. 2$/ seigniorial grants. The French edition of this volume is usually referred to by one of its sub-titles, Titres des Seigneuries, or Titres Seigneiiriaiix ; of these the former has been used throughout this monograph. The edicts of the king ratifying concessions en fief in the colony may be found in Edits et Ordonnances, vol. i ; and, in response to a request made by the Legislative Assembly, they were also printed separately as Brevets de Ratification (Quebec, 1853). In tracing the descent of seigniories from hand to hand, the Fealty Rolls (Aetes de Foi et Hom- mage) preserved at Ottawa are most serviceable ; abstracts of these rolls are published in the Report on Canadian Archives for the years 1 883-1 885. The task of the student who endeavors to follow the growth and changes in colonial population during the old regime has been greatly simplified by Johnson's Su?mnary 0/ the Censuses of Canada, 1665-1871 (Ottawa, 1876). On the topography of the seigniorial system a fruitful source of data are the Cadastres, or topographical and descriptive records compiled from the aveux et denombretnents made from time to time by the seign- iors. In 1863 an abridgment of these records was published at Quebec in four parts, as follows : Cadastres abreges des Seigneuries du District de Quebec, 2 vols. ; Cadastres abreges des Seigneuries du District de Montreal, 3 vols. ; Cadastres abreges des Seigneuries des Trois-Rivieres, I vol. ; Cadastres abreges des Seigneuries appartenant a la Couronne, I vol. Extremely useful works on the topography of the seigniories are Joseph Bouchette's British Dojtiinions in North America (2 vols., London, 1831), and the same writer's earlier volume, Description Topo- graphique de la Province du Bas- Canada (London, 1815). The movement for the modification, and later for the abolition, of the seigniorial system in Lower Canada brought forth a number of interesting publications. Among the earlier of these, special value attaches to the four compilations of the laws of the French period which were published under the auspices of Governor Carleton in 1 772-1 773 (see above, p. 198, note). F. J. Cugnet's Traite de la Loi des Fiefs (Quebec, 1775) and Traite de la Police (Quebec, 1775) ^""^ useful commentaries on the legal system of the old regime in Canada by a jurist who was thoroughly versed in his subject. Of much less value (for reasons given above, p. 202) is Francis Maseres's Draught of an Act of Parliainent for settling the Laws of the Province of Quebec (London, [1771]) ; but there is a considerable amount of very interesting contemporary data in the other works of Maseres, — A Collection of several Cotnniis- sions and other public Instruments . . . relating to the State of the Province of Quebec (London, 1772), Additional Papers concerning the 258 BIBLIOGRAPHICAL APPENDIX. Province of Quebec (London, 1776), and An Account of the Proceed- in<^s of the British and other Inhabitants of Quebec (London, 1775). Mention may also be made of James Marriott's Plan of a Code of Laws for the Province of Quebec (London, 1774). The various debates in the Legislative Assembly with reference to the seigniorial question may be found in the journals of that body. Journals of the House of Assembly of Lower Canada, 1 792-1837 (53 vols.) ; and the proceedings of the Legislative Council relating to the same subject are on record in fournals of the Legislative Council of Lower Canada, 1 792-1 837 (25 vols.). The parliamentary proceedings leading toward the abolition of the seigniorial tenure in 1854 are printed in full m Journals of the Legislative Assembly of Canada, 1841— 1866 (48 vols.), and Journals of the Legislative Cowicil of Canada, 1841-1866 (44 vols.). The reports of the various commissions and committees appointed to investigate the workings and effects of the seigniorial system are usually printed in the appendices to the annual volumes of the foregoing journals ; and the more important reports, such as those of 1790 and 1843, are also printed in Titles and Documents mentioned above (p. 256). In 1853 a small publication, Debats dans rAssemblee Legislative sur la Tentire Seigneuriale, was published at Que- bec ; but this contains only a small portion of the more important debates. Some of the legislative investigations on the subject, both in England and in Canada, during the period 1841-1854 were very exhaustive. Special attention should be called, for example, to the Report of the Committee on the State of the Civil Government of Canada (1828); the Report of the Committee on the Affairs of Lower Canada ; with Evidence (1834-1837) ; the Report of the Cofnmissioners on the Griev- atices complained of in Lower Canada (1837) ; and the Troisieme Rap- port et Deliberations du Comite Special de V Assemblee Legislative (Quebec, 185 1), which handles well some details of the seigniorial system. The famous Report on the Affairs of British North America, " by the Earl of Durham, Her Majesty's High Commissioner and Governor-General of British North America" (London, 1839 ; new edi- tion without the valuable appendices, London, 1900), devotes compara- tively little space to a consideration of the movement for the abolition of the old tenure ; but such consideration as it does give to the matter incidentally is of the highest interest and value, for in every paragraph this epoch-marking state paper embodies the genius of a master hand. The Seigniorial Tenures Abohtion Act of 1854, and the amending act, may be found in Statutes of Canada, 1841-1866 ; they are also printed in a separate volume with an excellent analytical index (Quebec, 1854)- BIBLIOGRAPHICAL APPENDIX. 259 Considerable light is thrown on the workings of the seigniorial system, and upon its relation to the general discontent during the period between the conquest and 1854, by the various works of travel and description in which this era was uncommonly fruitful. Volumes of this class which give more than cursory sketches of the matter are, for example, Laroche- foucault-Liancourt's Travels in the United States . . . with an authen- tic account of Lower Canada (4 vols., London, 1803) ; George Heriot's Travels through the Canadas (London, 1807) ; John Lambert's Travels through Canada (3 vols., London, 1814); Joseph Sansom's Sketches of Lower Canada (New York, 181 7) ; John Martin's Travels in Canada (London, 1824); and Sir Francis Head's £ migrant (London, 1847). When, about the middle of the nineteenth century, the movement for the abolition of seigniorialism reached its final stage, there ap- peared a veritable flood of pamphlets, articles, and other campaign literature dealing with the question from almost every point of view. Most of these were written either by strong partisans or by strong op- ponents of abolition, and few have more than a mere passing interest as showing the extent to which public feeling on the matter was wrought up. Those which have proved of some service in the preparation of the present volume are the following : J. C. Tach^, A Plan for the Commuta- tion of the Seigniorial Tenure (Quebec, 1854), which has in its appen- dix some serviceable statistical data and some valuable tables ; Robert Abraham, Some Remarks upon the French Tenure of " Franc Aleu Roturier" and on its relation to the Feudal and other Tenures (Montreal, 1849) ; Clement Dumesnil, De F Abolition des Droits Feodaux ei Seigneuriaux en Canada (Quebec, 1855) ; Alexis Kier- kowski, The Question of the Seigniorial Tenure in Lower Canada reduced to a Question of Landed Credit (Quebec, 1850) ; [A. X. Ram- bau], Le Bill Seigneurial expose sous son Vrai Jour, etc. (Montreal, 1855) ; [Sir Francis Hincks], The Seigniorial Question: its Present Position (Quebec, 1854) ; the anonymous pamphlet, Quelques Avis d'lin Cultivateur aux Censitaires du Bas- Canada au sufetde la Loi d' Abolition de la Tenui-e Seigneuriale (Quebec, 1855) ; Paie, Pauvre Peuple, Paie I "parle Frere de Jean-Baptiste " (Quebec, 1855); and the pamphlet containing the proceedings of La Convention Afiti-Seigneuriale de J/ of Com- pany of One Hundred Associates, 22- 24 ; revocation of, 27 ; of Company of the West Indies, 30-32 ; revocation of, 37- Chasse, See Droit de chasse. Chatellenie. See Coulonge. Chavigny, Francois de, seignior of La Chevrotiere, seeks enforcement of corvee obligation, 130. Cheruel, A., on gradations of the noblesse in France, 170. Chesnaye. See Aubert. Church, the, its relation to Canadian feudalism, 178 ; support given by, to agriculture, 179 ; lands controlled by, 180-181 ; superior management of seigniories by, 186; influence in France and in Canada, 187-188; dislikes new settlers, 234 ; attitude toward Jesuits' Estates, 250. See also Jesuits, RecoUets, Sulpitians, Ursulines. Churches, sometimes erected by corvee labor, 131 ; reservation of sites for, 139; right of seigniors to places of honor in, 161 ; methods of erection, 184; refusal of Laval to consecrate, 185 ; right of advowson in seigniorial, 185-186. Clergy Reserves, question of, 222-223, 224 ; prominence of, in elections of 1854, 245 ; secularization of, 245. Colbert, Jean Baptiste, his interest in affairs of New France, 14 ; organizes Company of the West Indies, 30 ; ap- proves Talon's scheme of military colo- nization, 69 ; secures revocation of patents of noblesse, 171. Colombier. See Droit de colombier. Commissioners of 1843, opinion in regard to corvees, 133; report of, 207; to be appointed to value seigniorial rights, 245-247. Company, British American Land, or- ganized to develop lands in Quebec, 234- Company of New France. See Company of One Hundred Associates. Company of One Hundred Associates, or- ganized by Richelieu, 22; its powers, 23; its organization, 24; encounters dif- ficulties, 24; seigniorial grants made by, 25; exploits fur trade, 26; surrenders its privileges, 27; grants lands subject to French Vexin, 63 ; conditions relat- ing to land grants in its charter, 88; empowered to grant titles of honor, 161-162. Company of the West Indies, organized under auspices of Colbert, 30; its exten- sive powers, 31 ; its prerogatives in law and in fact, 31-32; exploits fur trade, 32-33; sends agent to Canada, 32; makes few land grants, 33-34 ; its charter revoked, 37; its heavy losses, 37- Compensation, not granted for loss of ju- dicial powers, 1 58; given to seigniors upon abolition of seigniorial tenure, 247-248; considered inadequate by seigniors, 251. ContreccEur, Antoine Pecody de, officer of the Carignan-Salieres, becomes a seign- ior, 70. Copyhold, tenure in, confused with tenure en censive, 205-206. Corvee, exaction, in France, 5, 127; provisions of Custom of Paris relating INDEX. 281 to, 127; abuses in Canada, 128-130; exaction restricted, 129-130; futurestip- ulations of, forbidden, 1 30-1 31 ; super- vision of, 133; amount of, 133-134; commutation of, 133; "king's corvee," nature of, 132-133 ; exaction after the conquest, 133. Cote de Lauzon, habitants of, ordered to pay dues into royal treasury, 30. Couillard de Beaumont, Charles, obtains seigniory of Beaumont (1713), 44 ; rec- ommended for rank in the noblesse, 172. Coulonge, chatellenie of, given to Louis d'Ailleboust (1656), 169-170. Council, Old (I'ancien conseil), estab- lished at Quebec, 146; jurisdiction of, 146; registers of, not preserved, 146; replaced by Sovereign Council, 154- 155- Council, Royal. See Council of State. Council, Sovereign, appeals from, carried to Council of State, 14; established at Quebec (1663), 29; procedure to follow Parliament of Paris, 29; issues decree revoking land grants, 29-30; relation to Company of the West Indies, 32 ; delays promulgation of royal decree, 38; duty in registering royal arrets, 65; judgment relating to payment of lods et ventes, 96; decree regarding banal mills, 103; forbids exaction of more than legal rate of toll, 105 ; police regulations issued by, 105; orders pro- mulgation of royal orders, 106; mem- bers mostly seigniors, 107; considers petition of Morin, 109; hears appeal from the Prevote, 1 12; considers com- plaints regarding mills, 1 13; confirms appointment of seigniorial judges, 151; hears appeals from royal courts, 153; forbidden to consider appeals from seign- iorial jurisdictions, 154; suppresses seigniorial jurisdiction in Sillery, 154; orders collections of tithes, 183; pre- vents extension of tithe obligations, 184. Council, Superior. See Council (Sover- eign). Council, of the Regent, in France, adopts minute on colonial corvees, 128. Council of State (conseil d'etat du roi), hears appeals from Sovereign Council, 14. Countships. See Orsainville, St. Laurent. Courcelle, Daniel de Remy de, governor of New France (1665-1672), accepts proposals of Le Barroys, 34; makes in- formal grant to Jean Lemoyne, 35. Courts, royal. See Justice (administra- tion of). Coutume de Normandy, compilation of, 10. Coutume de Paris. See Custom of Paris. Coutumes, codification of, in France, 7; frequent revisions of, 1 1 ; English judges mistake nature of, 205-206. Cramahe, Hon. Hector T., lieutenant- governor of Canada (i 770-1 774), ad- ministers affairs during absence of Carleton, 208. Cugnet, Fran9ois Joseph, on exaction of the relief after the conquest, 64 ; on uniformity of the cens in Canada, 90 ; on supervision of seigniorial justice, 152 ; prepares abstract of edicts and ordinances, 201. Cures, sent about from seigniory to seign- iory, 182 ; permanently located in parishes, 183 ; support given by, to seigniors, 183; collect tithes, 184; might exempt habitants from payment, Custom of Paris, first official compilation of (1510), 7-8 ; revision of (1580), 8 ; arrangement and scope of, 8 ; commen- taries on, 8 ; relation to other customs, 8 ; introduced into New France, 9 ; unsuitability to colonial needs, 9-10 ; consequences of its introduction, lo-ii; provisions regarding subinfeudation, 59, 82 ; regarding exaction of the quint, 62 ; rules of succession regulated by, 83 ; provisions regarding the cens, 88 ; regarding exercise of the droit de re- trait, 97 ; its rules often disregarded in Canada, loo ; on right of mill banality, 102; its provisions set aside. III ; on scope of banal rights, 117-118; on right of oven banality, T2i ; on corvee exaction, 127 ; droit de colombier recog- nized by, 142 ; to be followed in seign- iorial courts, 152; abstract of, prepared under Carleton's orders, 198-199; nature 282 INDEX. of, misunderstood by English judges, 205 ; not customary law in English sense, 206 ; importance as a source of seigniorial law, 207; perpetuation in civil code of Quebec, 251. Daguesseau, Henri-Francois, eminent lawyer of Paris, 41 ; requested to draft an arrSt for reform of seigniorial abuses, 41-42; becomes chancellor of France, 41; opinion of, regarding provisions of Arret of Marly, 62. D'Ailleboust, Louis, governor of New France (1648-1651, 1657-1658), given the chatellenie of Coulonge, 169. D'Ailleboust de Musseaux, Charles- Joseph, member of noblesse, 171; poverty of, 174- Dalhousie, Lord, governor of Canada ( 1 820-1 828), action regarding com- mutation of tenures, 227. D'Auteuil, Denis-Joseph Ruette, Sieur, attorney-general of New France, recom- mended for rank in the noblesse, 172. D'Auteuil, Francois Ruette, Sieur, attor- ney-general of New France, delays pro- mulgation of royal decree, 107. D'Autray (or Dautre), seigniory of, stipu- lations in title-deed of, 60-61 ; timber for royal use taken from, 136— 137. Deerfield, part taken by the noblesse in destruction of (1704), 176. De Gaspe, Philippe Aubert, on daily life of habitants during the old regime, 153; description of May-pole ceremony, 160. Demaure, seigniory of, banal mill in, 109- iio; habitants ordered to give corvees, 131- Denombrement. See Aveu et denombre- ment. Denonville, Jacques-Rene de Brisay, Mar- quis de, governor of New France (1685- 1689), on poverty of the noblesse, 172-174. Denys (or Denis), Charles, Sieur de la Trinite, member of Sovereign Council, recommended for rank in the noblesse, 172. Dequindre, Douville, habitant at Detroit, receives new title to lands, 92. Deschaillons. See St. Ours. Deshaguais, M., eminent lawyer of Paris, requested to draft an arret for reform of seigniorial abuses, 41; tardiness in compliance, 42; opinions on provisions of the Arrlts of Marly, 62. Des Islets, barony of, created for Talon (1671), 163-164. Desjordy, seigniory of, disputes regarding corvee obligations in, 129. Detroit, en censive grants at, 79, 91-92. Deux-Montagnes, Lac des, seigniory of, given to the Seminary of St. Sulpice at Montreal (1714), 44; stipulations in title-deed of, 59. Dombourg, seigniory of, dispute regarding banal rights in, 109-110. Dorchester, Lord. See Carleton. Douglas, Robert, on extent of seigniorial jurisdiction, 147. Dovecotes, seigniorial. See Droit de colombier. Droit de banal. See Banality, Mills, Ovens. Droit de blairie, in France, 128. Droit de chasse, in France and in Canada compared, 141. Droit de colombier, recognized by Cus- tom of Paris, 142. Droit de jambage, mention of, 142. Droit de peche, nature of, 140; not an important exaction, 140. See also Beaches, Reservations. Droit de retrait, recognition of, in Custom of Paris, 97; different forms of, 97- 98; Raudot on extension of, in Canada, 97-98 ; Pontchartrain desires restriction of, 98; Begon's interpretation of, 99; incidents in other tenure systems cor- responding to, 99; views of Robert Abraham on service of, 99; abolilijn of, 247. Drummond, L. H., attorney-general, presents list of questions to Special Seigniorial Court, 249. Duchesneau, Jacques, intendant of New France (1676-1682), makes proposals regarding land grants, 38; refers in despatches to poverty of the noblesse, 173- Dugue, Sidrac, Sieur de Bois Briant, officer in the Carignan regiment, obtains seign- iory of Mille Isles, 44, 73; takes part in expedition to Fort Frontenac, 73; disposes of seigniory, 108. INDEX. 283 Dunkin, Christopher, counsel for seign- iors before Special Seigniorial Court, 249. Dupuy, Claude-Thomas, intendant of New France (i 725-1 728), judgment regard- ing obligation of banality, 1 13. Durantaye, Olivier Morel de la, officer of the Carignan-Salieres, receives a seign- iory in Canada, 70; member of expedi- tion to Fort Frontenac, 73. Durham, John George Lambton, first earl of, on the shape of Canadian farms, 81 ; " Report on the Affairs of British North America," 237-239; opinions on the relation of tenures to popular discon- tent, 238-239. Dusable, marquisate of, purchased by Charles Aubert, Sieur de la Chesnaye, 170. Ecu, of Louis XIV, amount of, 46. Egremont, Lord, secretary of state for the Southern Department (1761-1763), asks for reports on conditions in Can- ada, 190-191. Entremont, Philippe-Mius d', receives bar- ony of Pobomcoup (1652), 166. Exodus, of French-Canadians after the conquest, 192; conflicting views of Suite and Garneau on extent of, 192; difficulties in administration resulting from, 204; opinion of Judge Baby regarding its nature, 204. See also Noblesse, Population. Explorations, of Cartier and Roberval, 17; La Salle given rank in the noblesse for his zeal in, 171. Faillon, M. E., historian, on services of the Jesuits to agriculture, 186. Panning-mills, sent to colony by the king, 116. Fealty and homage, obligation of, in France, 56; rendered by seigniors in Canada, 56-57; last performed in 1854, 57; oath of, a pledge of military service, 65; rendered to seigniors by sub-seign- iors, 77; rendered by habitants to seigniors, 159; might be enforced by or- dinance, 159; description of ceremony by Kirby, 159; rendered by seigniors to new suzerain, 1 90; regarded as a prerequisite to the exaction of seign- iorial dues, 203. Ferland, J. B. A., on origin of French- Canadians, 9. Ferries, rights of seigniors to establish, 141; legal basis of right, 142. Ferte, Jean Juchereau de la, member of Sovereign Council, recommended for rank in the noblesse, 172. Feudalism, origin of, 2; definition of, 2-3; development of, in France, 3-4; promi- nence of the military obligation in, 3-4; decline of, 6; relation to absolutism, 13; abolition of, in England, 15; first implanted in New France, 19; fealty and homage as an incident of, 56; judicial administration an essential phenomenon of, 145; attitude of Louis XIV toward, 155; abolition of, in Canada, 245. See also Seigniories. Five Nations. See Iroquois. Foi et hommage. See Fealty and hom- age. Forfeiture, of seigniories, 29-30; of lands remaining uncleared, 36, 38; of en censive grants, 44; decree of, affect- ing twenty seigniories, 50; of banal rights, 106-107. See also Retrench- ment. Foucault, Fran9ois, receives regrant of his seigniory, 50. Franc aleu noble, nature of tenure in, 52; rules of succession relating to, 82. Franc aleu roturier, nature of tenure in, 53; Tocqueville's definition of, 53; rules of succession relating to, 83; tenure en seigneurie commuted to tenure in, 243, 245. Franche aumone, nature of tenure in, 53. Frankalmoign, nature of grants in, 53. Fraser, Captain, receives seigniory of Mount Murray (1762), 193. Frontenac, Fort, built at Cataraqui in 1673. 73- Frontenac, Louis de Buade, Count, gov- ernor of New France (1672-1682, 1 689-1698), orders seigniors to drill their habitants, 66; describes chateau of Longueuil, 67; estimates population of colony in 1673, 72; builds fort at Cataraqui, 73; praises the disbanded Carignans, 73; asks that Longueuil be 284 INDEX. made a barony, i68; recommends Her- tel for letters of noblesse, 174; pre- dicts land monopoly by Jesuits, 180. French-Canadians, origin of, 9-10; Fer- land on the origin of, 9 ; strength of Norman element among, lo ; unfamil- iar with Custom of Paris, lO ; Cata- logne's description of, 47 ; pen portrait of, by Hocquart, 143 ; Kalm and Lahontan on economic condition of, 144 ; tendency to litigiousness among, 153 ; De Gaspe on daily life of, 153 ; Talon's description of, 171 ; influ- ence of the church among, 188 ; exodus of, after the conquest, 192 ; Murray's report on the condition of, 197 ; departure of leaders among, 204 ; attitude during the Revolutionary War, 211-213; relation of English seign- iors to, 233 ; economic condition of, 234 ; influence of notaries among, 234-235 ; later attitude toward the seigniorial system, 241-245. See also Habitants, Noblesse, Population. Fustel de Coulanges, Numa-Denis, on administration of feudal justice in France, 145. Garneau, F. X., opinions on seigniorial judicial powers, 147 ; on extent to which judicial powers were exercised, 158 ; on grants of seigniories with jurisdiction after 1714, 158; on ex- tent of exodus after the conquest, 192. Gaudais, Louis, sent to Canada as royal commissioner, 29. Gaudarville, seigniory of, habitants to receive new titles at customary rates, 90; rate of rentes in, 93; payment of lods et ventes in, 96. Gentilly, seigniory of, granted without judicial rights, 147. Gentilshommes. See Noblesse. George III, king of Great Britain and Ireland (i 760-1810), recrudescence of royal power during reign of, 15. Giffard, Robert, first seignior of Beauport, 25- Gobin, seigniory of, its extent, 55. Godefroy (or Godfroy), Jean-Baptiste, rec- ommended for rank in the noblesse, 172. Goderich, Lord, secretary of state for war and for the colonies (1830-1833), instructions regarding tenures in Can- ada, 228. Gosford, Lord, governor of Canada ( 1 835-1 838), head of commission to investigate grievances in Canada, 235; dissolves parliament of Lower Canada, 236. Governor, under English rule. See Carle- ton, Durham, Gosford, Haldimand, Murray. Governor, under French rule, appoint- ment of Champlain to post of, 24; em- powered to redistribute forfeited lands, 28; Company of the West Indies em- powered to appoint, 31 ; Charlevoix on appointment of Mezy as, 32; to make grants of seigniories jointly with in- tendant, 37; instructed to grant lands en censive when necessary, 43; reports forfeiture of uncleared grants, 44; authorized to make grants in absence of intendant, 50; ceremony of fealty and homage rendered to, 56; recom- mends distribution of royal favors in the colony, 162-172. See also Beau- harnois, Champlain, Courcelle, D'Aille- boust, Denonville, Frontenac, Lauzon, Mezy, Ramezay, Vaudreuil. Grand voyer, office of, in New France, 132. Grant, Charles Colmore, recognized as seventh baron of Longueuil, 169. Grants, en franc aleu noble, 52-53; en franc aleu roturier, 53; en franche aumone, 53-54; en arriere fief, 77-78; en roture or en censive, 78-79; at De- troit, 79; shape of, 79-80; subdivision of, 81; effect of subdivision of, 83-85. See also Seigniories. Granville, Pierre Becquart, Sieur de, officer of the Carignan-Salieres, be- comes a seignior in New France, 70. Grondines, seigniory of, complaints re- garding banal mill in, 113. Habitants, explanation of term, 39; often did not receive written titles, 39-41 ; relation of Arret of Marly to, 43; ref- erences of Catalogue to condition and habits of, 47-48; ignorant of their rights, 48; nature of land grants re- INDEX. 285 ceived by, 78-80; subdivision of farms held by, 83-84; houses demolished by intendant's order, 84; dues in seign- iory of Gaudarville, 90; permitted to pay dues in card money, 92; gathered in November at the manor-house, 95; of Varennes and Mille Isles, obtain banal rights, 108; complain of ineffi- ciency of seigniorial mills, 1 1 2-1 14; banalities not burdensome, 120-121; attracted by profits of the fur trade, 126; of Desjordy, ordered to render corvees, 129; of La Chevrotiere, de- mand food and tools during corvee periods, 130; of Demaure, ordered to build a bridge, 132; royal corvee of, supervised by grand voyer, 132-133; reservations placed upon lands of, 134-139; prohibited by seigniors from trading with Indians, 139-140; condi- tion of, as compared with French cen- sitaires, 143; Kalm and Lahontan on condition of, 144; disposition to litig- iousness, 153; rebuked by Talon, 153; daily life as portrayed by De Gaspe, 153; compelled to pay for special sessions in seigniorial courts, 156; plant May-pole at the manor- house, 160; more desirable as settlers than gentilshommes, 174; protected by intendant, 177; influence of the church with, 188; respect and obey the noblesse, 197; called upon by Carleton for military service, 21 1; refuse to obey their seigniors, 212-213; rents of, in- creased after the conquest, 220; show signs of discontent, 235; deserted by their leaders in the rebellion, 236; dis- content of, discussed by Durham, 238-239; proposals for commutation of tenure of, 242; empowered to challenge valuations made by commis- sioners, 246; provisions in act of 1854 relating to, 247-248; lands to be held en franc aleu roturier, 250-251. Haldimand, Frederick, governor of Can- ada ( 1 778-1 786), instructed to grant lands to loyalists, 214. Hamelin, Louis, seignior of Grondines, 113- Haute justice. See Justice (seigniorial). Haverhill, noblesse in raid on, 176. Hay, Judge, opinion on uniformity of the rate of cens, 90. Hebert, Louis, receives seigniory of Sault au Matelot (1623), 21. Henrion de Pansey, P.P.N., on nature of tenure in frankalmoign, 54; on origin of the cens, 87; on scope of banalities in France, loi ; concerning exercise of royal authority over seigniorial mills, 104; on extension of banal rights to grain other than wheat, 118. Henry III, king of France (1574-1589), orders revision of Custom of Paris, 8. Henry IV, king of France (1589-1610), grants commission to La Roche, 18. Hertel de Rouville, Francois, forbidden to take wood from lands of habitants, 134; offered rank in the noblesse, 174. Hertel de Rouville, Jean-Baptiste, de- stroyer of Deerfield, 176; takes part in raid on Haverhill, 176. Hocquart, Gilles, acting intendant of New France (1729-1731), intendant of New France (1731-1748), discusses seignior- ial abuses, 47-48 ; calls attention to sub- division of lands, 84; orders new titles at customary rates in seigniory of Gau- darville, 90; endeavors to secure im- provement of seigniorial mills, 115; asks king for fanning-mills, 116; strives to foster agriculture, 126; his description of Canadian population, 143. Honors, accorded to seigniors in France, 5; in Canada, 159-160. See also No- blesse. Hospital, General, at Quebec, obtains Tal- on's seigniory, 165; lands held by, 181. Hospital, General, at Montreal, lands held by, 181. Hotel Dieu, at Quebec, lands held by, 181. Hurons, extirpation of, by Iroquois, 26. Iberville. See Lemoyne d'lherville. Intendant, not mentioned in edict of 1663, 29; calls attention to apathy of the com- pany, T,T,; land grants to be made by, 34; instructed to prepare a table of lands conceded, 36; to grant seigniories jointly with governor, 37; discusses seignicjrial abuses, 41-42; empowered to grant lands en censive, 43; reports forfeiture of many holdings, 44 ; might make 286 INDEX. grants alone in absence of governor, 50; complains of subdivision of small holdings, 84; protection of habitants by, 143; appeals taken to the court of, 153; enforces equality of seigniors and habit- ants before the law, 177; administrative jurisdiction of, not preserved after the conquest, 207; powers of, declared to have passed to English courts, 240. See also Begon, Bigot, Champigny, Duchesneau, Dupuy, Hocquart, MeuUes, Raudot, Robert, Talon. Iroquois, extirpation of Hurons by, 26; scourge the colony, 2)Z'^ Carignan regi- ment sent out to crush, 67; Richelieu district rendered safe against, 72. Isle aux Coudres, granted to the Jesuit Seminary at Quebec, 61. Isle Jesus, seigniory of, exchanged by Berthelot for island of Orleans, 165; progress made in cultivation of, 166. Isle of Orleans, seigniory of, exchanged by Laval for Isle Jesus, 165; population of (1667), 186. See also St. Laurent. Isle Perrot, seigniory of, rate of cens in, during period of military rule, 206. Isle St. Joseph, seigniory of, small extent of, 60; granted without judicial rights, 147- Isle aux Ruaux, stipulations in title-deed of, 58 ; given to Jesuits, 60. Isles Bouchard, seigniory of, rate of rentes in, 93; extension of reservations forbid- den in, 136. Islets, Barony des. See Talon. Jacques Cartier, seigniory of, granted without judicial rights, 147. Jambage. See Droit de jambage. Jesuits, receive their first grant of lands in Canada (1626), 21 ; receive lands en franche aumone at Three Rivers, 25 ; controversy with company over liquor traffic, 26 ; receive grants en franc aleu noble, 52; acquire Charlesbourg, 52 ; secure amortisement of estates, 53 ; receive seigniory of La Prairie, 54 ; seigniors of Isle aux Ruaux, 60 ; ju- dicial powers of, suppressed in Sillery, 154; lands of, taken by Talon, 162- 163; regain forfeited lands, 165; become largest landholders in the colony, 179; prediction of Frontenac regarding, 180 ; table of lands held by, 180; churches erected in seigniories of, 185 ; superior cultivation of their seigniories, 186; services to agricul- tural development, 186; order sup- pressed by the Pope, 250 ; estates pass to the crown, 250. See also Laval, Pontbriand, St. Vallier. Jesus, The Reverend Fathers of the So- ciety and Company of. See Jesuits. Jeu de fief. See Subinfeudation. Juchereau de la Ferte, Jean, member of council, recommended for rank in the noblesse, 172. Justice, administration of, in New France before 1627, 145 ; under Company of One Hundred Associates, 146 ; after 1663, 147 ; by royal courts, 153 ; views of Lahontan on, 156-157 ; under Brit- ish rule, 195 ; Murray's strictures upon, 197; chaos attending, 200; absence of discretionary powers in, 205 ; as provided for in Quebec Act, 209. Justice, seigniorial, early history of, in France, 5 ; Maitland on essential na- ture of, 145 ; gradations of, 147 ; haute justice, 148-149 ; moyenne justice, 150; basse justice, 150-15 1 ; adminis- tration of, in France and in Canada compared, 147-152; failure of seign- iors to exercise, 152; subject to ap- pellate jurisdiction of royal courts, 154 ; attitude of Louis XIV toward, 155 ; sundry abuses in administration of,, 156; views of Carleton on, 157 ; com- ments of Garneau concerning adminis- tration of, 158; abolished by British authorities, 158, 190; in fiefs of the church, 187. Kalm, Peter, Swedish naturalist, on methods of fishing on tidal beaches, 138 ; on dwellings of habitants, 144. Kirby, William, describes ceremony of fealty and homage, 159. Kirke, Sir David, captures Quebec (1629), 24-25. La Chevrotiere, seigniory of, disputes re- garding corvee obligation in, 130. Lahontan, Le Baron de, views on female INDEX. 287 emigrants to Canada, 71 ; on the com- fort of the habitants, 144 ; on admin- istration of justice in New France, 15^157- Lamotte-Cadillac, Antoine de, makes in- formal grants at Detroit, 79. Lanaudiere, Charles de, submits answers to disputed questions, 65, 216; peti- tions for commutation of tenure, 214. Lanaudiere, Jacques-Thomas Tarieu de, officer of Carignan regiment, becomes a seignior in Canada, 70. L'Ange-Gardien, seigniory of, demolition of houses in, by intendant's order, 84. Langlois, Noel, purchases a seigniory and aspires to be a gentilhomme, 172. Langlois, Noel, carpenter, commissioned to look up timber for the royal navy, 137- Langloiserie, Charles-Gaspard Plot dit, seignior of Mille Isles, 44. La Prairie de la Magdelaine, seigniory of, granted to Jesuits (1647), 54. La Salle, Robert Cavelier, Sieur de, given rank in the noblesse, 171. La Tour, Claude-Etienne de, governor of Acadia, grants barony of Pobomcoup, 166. Lauzon, seigniory of, banal mill demol- ished, 120. Lauzon, Jean de, governor of New France (1651-1656), ordinance relating to seigniorial mills, 103 ; recommends Pierre Boucher for rank in the no- blesse, 171. Laval, Frangois-Xavier de, appointed bishop of Petrgea and vicar-apostolic in New France (1659), 28; empowered to assist governor and intendant in en- forcing royal decree, 28 ; made bishop of Quebec (1674), 28; estimates in- creases in colonial population during year 1672, 72; exchanges Isle of Orleans for Isle Jesus, 165 ; work of, in accumulating lands for the church, 181; favors seigniorial system, 182; orders collection of tithe, 183; refuses consecration of seigniorial churches, 185 ; on progress of ecclesiastical fiefs, 186. See also Church, Jesuits, St. Sul- pice. La Valterie (or La Valtrie), Seraphin Margane, Sieur de, officer of the royal forces, becomes a seignior in Canada, 70- Law, English civil, introduced into Can- ada (1763), 193; unsatisfactory work- ing of, in relation to land tenures, 195 ; abolished as regards tenures and in- heritance to real property, 196 ; abol- ished by Quebec Act, 209 ; established in Upper Canada, 221. Law, English criminal, established in Can- ada (1763), 192; continued by Quebec Act (1774), 209; established in Upper Canada(i79i), 221. Law, French civil, replaced by English law and procedure (1763), 193; aboli- tion of, causes difficulties, 195 ; restored in part (1766), 196; recommendations of Murray regarding, 198 ; compilation of, 198-199; abolition of, regarded by Carleton as an error, 199-200; entire restoration favored by Carleton, 201- 202 ; restoration opposed by Maseres, 202; misunderstood by English judges, 203-207 ; bewildering nature of, 208 ; entire restoration recommended by law officers of the crown (1773), 209 ; re- stored by Quebec Act (1774), 209; revision and recodification of, 251. See also Custom of Paris. Le Barroys, Mille-Edme, agent of Com- pany of the West Indies, 32 ; submits proposals regarding method of granting seigniories, 34. Le Ber, Jacques, Sieur de Senneville, merchant of Montreal, purchases rank in the noblesse, 172. Le Due vs. Hainaut, case of, decided by military tribunal, 206, Le Gardeur de Repentigny, Jean-Baptiste, member of the noblesse of France, 171 ; poverty of, 171. Le Gardeur de Tilly, Charles, first seign- ior of St. Michel, 35 ; member of the French noblesse, 171 ; poverty of, 174. Le Moine, Sir J. M., on " Tidbits of Feudal Customs in Canada," 143. Lemoyne, Charles, first seignior of Lon- gueuil, 167; family of, 168-169; recom- mended for rank in the noblesse, 172; sons of, in raid on Schenectady, 176. 288 INDEX. Lemoyne, Charles, the younger, Baron de Longueuil, obtains seigniory of Belceil (1713), 44; inherits father's estates, 167; made first baron of Longueuil, 168; descendants of, 168. Lemoyne, Jean, obtains seigniory of Ste. Marie (1669), 35. Lemoyne de Bienville, Jean-Baptiste, brother of first baron of Longueuil, governor of Louisiana, 169; leader in Schenectady raid, 176. Lemoyne de Chateauguay, Louis, brother of first baron of Longueuil, killed at Fort Bourbon, 169. Lemoyne d'Iberville, Pierre, brother of first baron of Longueuil, founder of Louisiana, 169; takes part in Schenec- tady raid, 176. Lemuyne de Serigny, Joseph, brother of first baron of Longueuil, distinguished in French service, 169. Lemoyne de Ste. Helene, Jacques, brother of first baron of Longueuil, takes part in Schenectady raid, 176. Leneuf de la Poterie, Jacques, acquires seigniory of Portneuf, 1 66-1 67 ; obtains lands at Three Rivers, 170; member of the noblesse of France, 171. Leneuf de la Vallieres (or Valliere), Michel, acquires father's lands at Three Rivers, 170. Lods et ventes, early history of, in France, 4; rate of, in Custom of Paris, 96; rate of, in Canada, 96; when payable, 96- 97; hampers transfers of land, 97; re- lation of droit de retrait to, 97-99; abolition of, 247; method of estimat- ing compensation for loss of, 246-247; opinion of Special Court on legal valid- ity of, 247. Longueuil, barony of, the fortified chateau of, 66-67; created in favor of Charles Lemoyne the younger, 169; its exten- sive area, 169; its later history, 168— 169. SeeahoQxzxA (Charles Colmore). Longueuil, seigniory of, stipulations in title-deed of, 60; granted to Charles Lemoyne, 167. See also Longueuil (barony of). Longueuil, town of, situated in barony, 169. Lotbiniere, family of, in the Canadian noblesse, 173. Louis XI, king of France (1461-1483), views on compilation of the cou- tumes, 7. Louis Xn, king of France (1498-1515), codification of the coutumes during reign of, 7. Louis Xin, king of France (1610-1643), charters Company of One Hundred Associates, 22. Louis XIV, king of France (1643-1715), death of, 47; policy in regard to subinfeudation of lands, 61-62; friendly attitude to feudalism, 155; interest in work of the church in Canada, 180. Louis XV, king of France (1715-1774), progress of seigniorial system under, 50. Mabane, Adam, opinion on workings of seigniorial system, 217-218. McCallum vs. Gray, case of, 207, Maitland, F. W., on significance of seign- iorial justice, 145. Malbaie, seigniory of, granted to Captain John Nairn, 193. Manesse, L., on evils of seigniorial absen- teeism in France, 12. Marie de I'Incarnation, Mere, opinion regarding character of female immi- grants, 72. Marly, Arrets of (1711), provisions of, 42-43; their significance, 44; evaded by seigniors, 47-4S; provisions reiter- ated in Arret of Versailles (1732), 49; intentions of the king as expressed in, 61-62; forbade exaction of bonus by seigniors, 89; did not make rate of cens uniform throughout the colony, 89-92; generally disregarded by seign- iors after 1763, 203; held by English courts to have remained in force after the conquest, 220; report of the com- mission of 1843 regarding contemporary validity of, 240; failure of habitants to secure rights under, 240-241. Marquisates. See Dusable, Miscou. Maseres, Francois, attorney-general of Quebec, on exodus of the noblesse after the conquest, 176-177; train- ing in English law, 202; draws up a plan of laws for the colony, 202; Carle- ton's opinion of, 202; views influence home authorities, 208. INDEX. 289 Maurepas, Le Comte de, minister of marine, discusses evasion of royal de- crees by seigniors in Canada, 49. May-pole, to be planted at seignior's house, 1 59-1 60; description of cere- mony by De Gaspe, 160; habitants dis- charged by intendant from obligation, 160. Mazarin, Cardinal, minister of Louis XIV, lack of interest in French colonies, 14. Meulles, Jacques de, intendant of New France (1682-1686), calls attention to poverty of the noblesse, 172-174. Mezy (or Mesy), Augustin Saffrey de, governor of New France (1663-1665), empowered to regrant forfeited seign- iories, 28. Military rule, administration of justice during period of (1760-1764), 158; divisions of colony under, 190; in- terpretation of seigniorial rights by military courts, 206. Military service, obligation of, in France, 6; not mentioned in colonial title-deeds, 64; emphasized in La Roche's charter, 64 ; edict of 1 674 regulating, 65 ; pledged by oath of fealty and homage, 65-66; Carleton's opinion as to existence of, 66; frequent drill of habitants ordered by Frontenac, 66; proposal of Talon to insert obligation in title-deeds, 69; Maitland on importance of, as an in- cident of seigniorial tenure, 145; at- tempts of Carleton to enforce, during Revolutionary War, 211; opposition of habitants to exaction of, 212; obliga- tion becomes obsolete, 213. Mille Isles, seigniory of, its early history, 44; stipulations in title-deed of, 59; loss of banal rights in, 108. Mills, seigniorial, ownership of, on par- titions of seigniories, 82; provisions in Custom of Paris relating to, 102; ordi- nance of Lauzon relating to, 103; de- cree of council regarding abuses in, 103; rate of toll fixed in, 103-104; right of royal judges to inspect, 104; Henrion de Pansey on basis of royal authority over, 104; slow increase of, in Canada, 105 ; decree of 1686 relating to erection of, 106; despatch of Raudot relating to, 106-107; forfeiture of rights for failure to erect, 108; windmills placed within category of, 108; regula- tions regarding patronage of, iio-iii; complaints regarding quality of flour produced by, 111-112; rude equip- ment of, 113-114; official attempts to improve, 11 5-1 16; often built of stone and sometimes fortified, 1 1 6-1 17; some- times built by corvee labor, 117; charac- ter of grains ground by, 118-I19; meth- ods of preventing competition with, 1 19-120; service to advancement of agriculture, 125-126; compensation re- ceived by seigniors for, 246. See also Banality. Minville, seigniory of, its extent, 55. Minister of marine, obtains charge of colonial interests of France (1669), 14. See also Colbert, Maurepas, Pontchar- train. Miscou, marquisate of, given to Michel de Saint-Martin, 170. Mohawks, scourge the colony, 33; Carig- nan regiment sent to crush, 67; Riche- lieu district rendered safe against in- cursions of, 72. Mondelet, Judge, opinion regarding uni- formity of the cens, 90; on scope of seigniorial leservations, 137. Montcalm, Louis-Joseph, Marquis de, commander-in-chief of French forces in Canada, allows soldiers to cultivate their farms, 188. Montesquieu, Charles de Secondat, Baron, on the source of seigniorial jurisdic- tion, 147. Montmorenci, Henri, Due de, viceroy of New France (i 620-1 624), makes first seigniorial grant (1623), 21. Montreal, capitulation of, guarantee of proprietary rights by, 189-190; pro- visions of, confirmed by Treaty of Paris, 191. Montreal, district of, establishment of royal court for, 1 53-154. Montreal, island of, granted to the Semi- nary of St. Sulpice at Paris, 61 ; stipula- tions in title-deed of, 6l ; rate of lods et ventes in, 96. See also St. Sulpice. Morcellement, evil of, in France, 83; does not appear in Canada, 83-84. 290 INDEX. Morel de la Durantaye, Olivier, officer of the Carignan-Salieres, receives a seign- iory in Canada, 70; leader in expedi- tion to Fort Frontenac, 73. Morin, Charles, miller of Demaure, petition of 109. Mount Murray, seigniory of, granted to Captain Fraser (1762), 193. Moyenne justice. See Justice (seignior- ial). Murray General James, governor of Que- bec (1764- 1 768), accepts fealty and homage of Jean Noel, 56-57; report of (1762), 191; makes seigniorial grants, 193; proclamation establishing civil government, 193; receives in- structions regarding land grants, 194; allows partial revival of French civil law, 195-196; returns to England, 196; opinion of new English settlers, 197; de- scription of habitants, 197; on adminis- tration of justice after the conquest, 197. Murray Bay, seigniory of. See Malbaie. Musseaux, Charles-Joseph d'Ailleboust de. See D'Ailleboust. Kairn, Captain John, granted seigniory of Malbaie (1762), 193. Nantes, Edict of, revoked (1598), 18. Neuville, seigniory of, banal mills in, II3- 114. Noblesse, members of the French, among Carignan officers, 67 ; in France and in Canada compared, 161; La Roche and Company of One Hundred Associates empowered to create, 161-162; not a large body, 162; titled members of, 162-170; Talon's memoir on, 171-172; various colonials recommended for rank in. 172; letters of, purchased by Le Ber, 172; dire poverty of, 172-174; some members of, in comfortable cir- cumstances, 173; royal favors given to, 175; take part in border raids, 176; Parkmanon, 176; relation to seigniorial system, 177; exodus after the con- quest, 176-177; views of Carleton and Maseres on, 177; Murray's opinion of, 197. Normans, strength of, in Canadian popu- lation, 9-10; especially strong in rural districts, 10; unfamiliar with Custom of Paris, 10 ; prolific character of, 84; tendency to litigation among, 153- Notaries, oppose interference with seign- iorial system, 234; justified by Durham, 238. Notre Dame des Anges, seigniory of, granted to Jesuits (1626), 21; lands taken by Talon, 162-163; detached lands restored to, 165. Orleans, island of, granted to Jesuits, 165; exchanged for Isle Jesus, 165; population in 1667, 186, See also St. Laurent. Orsainville, countship of, established for Jean Talon, 164; its later history, 165. Ovens, seigniorial, right of seigniors to establish, 121; very few erected in Canada, 121 ; despatches of Raudot relating to, 122-124; instructions of Pontchartrain regarding, 122. See also Banality. Pachiriny, seigniory of, obtained by Jesuits (1634), 53; extent of, 180. Paris, Custom of. See Custom of Paris. Paris, Treaty of, concluded in 1763, 191; provisions of, 193. Parishes, creation of, 182; distribution of, 183; relation to seigniories, 183. Parkman, Francis, attributes introduction of Canadian feudalism to Richelieu, 14; describes feudalism as " effete and cum- brous," 19; on banalities, 125; on atti- tude of Louis XIV to feudalism, 155; on the noblesse in peace and war, 176. Parliament of Paris, its part in the gov- ernance of France, 14; Sovereign Coun- cil to follow procedure of, 29; decision as to scope of mill banality, 1 1 7. Peche. See Droit de peche. Perriere, Boucher de la, member of the noblesse, leader in Haverhill raid, 176. Perrot, Francois-Marie, first seignior of Isle Perrot (1672), 70. Perwich, William, English agent in Paris, on nature of female immigration to New France, 71. Petit, Jean, treasurer of the marine, given half interest in seigniory of Mille Isles (I7I4),44. INDEX. 291 Petrsea, Fran^ois-Xavier de Laval, bishop of. See Laval. Peuvret, Dame, seignioress of Gaudar- ville, ordered to grant title-deeds to habitants, 90. Piot, dit Langloiserie, Gaspard. See Lan- gloiserie. Pobomcoup, barony of, in Acadia, granted to Philippe-Mius d'Entremont (1652), 166. Pointe du Lac, seigniory of, granted with- out judicial rights, 147. Pontbriand, Henri-Marie Dubreil de, fourth bishop of Quebec (1741-1760), views seigniorial system with favor, 182; endeavors to secure concord between cures and seigniors, 186. Pontchartrain, Fort, 79. Pontchartrain, Louis Phelypeaux de, min- ister of marine, desires uniformity of cens in Canada, 89; on exercise of droit de retrait, 98 ; instructions to Raudot regarding banal ovens, 122. Population, of New France, strength of Norman element in, 9-10 ; increases during period 1669-1673, 72 ; Fronte- nac's estimate of, 72 ; disposition to litigiousness, 155 ; of Longueuil and Tremblay, 168; of Beaupre and island of Orleans, 186 ; drain on, caused by wars, 188 ; introduction of English ele- ment in, 192; increase in rural, between 1 784 and 1826, 237. See also Habitants, Noblesse. Portneuf, barony of, created for Jacques Leneuf de la Poterie (1681), 167. Poterie, Jacques Leneuf de la, seignior of Portneuf, 166 ; made first baron of Portneuf (1681), 167. Prevote, court of the, at Quebec, deals with questions concerning seigniorial mills, 112, 114 ; first estal)lished, 145 ; hears appeals from seigniorial courts, 154- Proclamation, of 1763, introduces English civil law, 193 ; right of governor to issue, 195 ; of 1775, calls for mili- tary service, 21 1. Prohibitions, royal, of trade with Indians, 75 ; of tolls upon rivers, 75. Prohibitions, seigniorial, inserted in title- deeds of arricre-tiefs, 78 ; inserted in title-deeds of en censive grants, 139— 140 ; illegal, 140. Poulin, Maurice, Sieur de la Fontaine, first seignior of St. Maurice (1668), 35; Poyrier, Vincent, ordered to be paid for timber taken from his lands, 74. Quint, nature and amount of, 62; rebate of one-third, 63; when payable, 63; amount after the conquest, 63 ; in arriere-fiefs, 77 ; proceeds devoted to civil expenses, 222 ; abolished, 247. Ramezay, Claude de, governor of Mont- real, obtains seigniory on river Ya- maska (1713), 44. Ratification, of seigniorial grants by the king, 39 ; necessary within a year from date of grant, 75. Raudot, Jacques, intendant of New France (1705-1711), directs attention of minis- ter to seigniorial abuses, 39-42 ; asks for uniform rate of cens, 89 ; discusses payment of rentes in money or kind, 94 ; on abuses of droit de retrait, 97 ; explains non-publication of decree of 1686, 106 ; protests against exaction of oven banality, 122-123 ; anxious that agriculture should be encouraged, 126; does not mention corvee exactions, 127 ; explains frequency of lawsuits, 153. Rear fiefs. See Arriere-fiefs. Reaume, Pierre, habitant at Detroit, re- ceives new title-deed, 92. Recollets, lands held by, 181 ; excepted from certain guarantees in articles of capitulation, 190. Redevances, seigniorial, nature and amount of, in France, 4-6. See also Cens et rentes, Lods et ventes. Regent, assumes direction of colonial affairs on death of Louis XIV (1715), 47 ; council of, passes order relating to corvee labor in New France, 128. Relations, Jesuit, on progress of agricul- ture during Talon's administration, 163. Relief, nature and amount of, 63 ; pro- vided for by rules of the French Vexin, 63-64 ; evidently not collected after 292 INDEX. the conquest, 64 ; opinion of Cugnet on abrogation of, 64. Renauldon, J., on character of the seign- iorial bailiffs in France, 12. Rentes, seigniorial, when and how pay- able, 93 ; usually paid in poultry and wheat, 93 ; table showing fluctuations in value of, 94 ; Casgrain on method of payment, 95 ; ordinance relating to payment, 95 ; method of estimat- ing compensation for loss of, 245 ; abolition of, 247. See also Cens et rentes. Repentigny, Jean-Baptiste Le Gardeur de. See Le Gardeur. Report, of Gedeon de Catalogne on state of the seigniories in Canada, 45-47 ; of General Murray on Canadian affairs (1762), 191 ; on administration of justice (1766), 196-197 ; of Maseres on a project of laws for Quebec, 202; of Council for Trade (1770), 203 ; of law officers of the crown on legal situa- tion in Canada (1772-1773), 209; So- licitor-General Williams on the seignior- ial system (1790), 2 1 5-2 16 ; of attorney- general (1794), 220 ; of Lord Durham on the affairs of British North America (1839), 236-239 ; of commissioners of 1843 on the seigniorial system, 240 ; committee of the legislature (185 1), 244. Requint, payment of, in France, 63. Reservations, royal, of lands for fortifica- tions, 74 ; of timber for use in royal navy, 74 ; of minerals, 74 ; of lands for public highways, 74 ; of fishing beaches, 75 ; of right of appeal to royal courts, 75 ; of right to withhold ratification of concessions, 78 ; pro- visions in instructions of 1763 relating to, 195 ; abolition of, 247. Reservations, seigniorial, of wood and stone, 134; of minerals, 138; of fish- ing rights, 139 ; of lands for seigniorial buildings, 139 ; illegal, 139; abolition of, 247. Retrait. See Droit de retrait. Retrenchment, of uncleared seigniories (1672), 36; of the twentieth part of uncleared lands (1679), 38. See also Revocation. Revocation, of seigniories remaining un- cleared (1663), 28-30; of the char- ter of Company of the West Indies (1674), 37; provided for in first Arret of Marly (171 1), 43; of the grant of Mille Isles (1714), 44; of en censive grants (i73i),44; of twenty uncultivated seigniories (1741), 50; of judicial rights in ecclesiastical seignior- ies, 154; of the barony of Cap Tour- mente, 167; of patents of noblesse, 171. See also Retrenchment, Sur- render. Richelieu, Armand-Jean du Plessis, Car- dinal, minister of Louis XIII, com- monly regarded as having planted feudalism in Canada, 14; desires to establish a military colony, 22 ; organ- izes Company of One Hundred Associ- ates (1627), 22. Richelieu River, channel of Mohawk in- cursions, 69 ; Talon's plan to settle shores of, with soldiers, 69 ; route along, rendered safe by the disbanded Carignans, 70. Rioufol, M., on origin of the right of mill banality in France, loi. Rivers, seigniors forbidden to exact toll on, 75 ; rights of seigniors to establish ferries across, 141 ; rights of seigniors in unnavigable, 142. Roads, built by seigniors, 81 ; to seignior- ial mill, 114; corvee labor exacted for building of, 131 ; duties of grand voyer in construction of, 132. Robert, Louis, first intendant of New France (1663-1665), empowered to regrant forfeited seigniories, 28. Roberval, Jean-Fran?ois de la Roque, Sieur de, expedition to New France, 17- Robineau,Rene,seigniorofBecancour,i67. Roche, Troillus du Mesgoiiets, Sieur de la, commission of, 18; powers of, 18-19; expedition to Sable Island, 18; provisions regarding military ser- vice in commission of, 64 ; authorized to grant titles of honor, 161-162. Rochemonteix, C. de, on services of the Jesuits to agriculture, 186. Romans, military colonization of, taken as a precedent by Talon, 68. INDEX. 293 Hoque, Chevalier, ensign in the Carignan regiment, obtains seigniory on the RicheUeu, 70. Roture, grants in. See Grants (en censive). Roturiers. See Habitants. Rouville, seigniory of. Sie Hertel de Rouville. Rowan, Major-General WilHam, adminis- trator of Canada (i 853-1854), receives last act of fealty and homage, 57. Sainte-Anne de la P6rade, seigniory of, stipulations in title-deed of, 60; con- dition of seigniorial mill in, 113. Sainte-Anne des Monts, seigniory of, stipulations in title-deed of, 60. Sainte-Helene, Lemoyne de. See Le- moyne de Ste. Helene. Sainte-Marie (pres Batiscan), seigniory of, granted to Jean Le Moyne (or Le- moyne) in 1669, 35. Saint-Germain-en-Laye, Treaty of (1632), restores Quebec to France, 25. Saint-Jean, seigniory of, stipulations in title-deed of, 59 ; granted without ju- dicial rights, 147. Saint- Johns, town of, in barony of Lon- gueuil, 169. Saint- Laurent, countship of, given to Franijois Berthelot, 165 ; erection of seigniorial church in, 184. Saint-Martin, Michel de, marquis of Miscou, 170. Saint- Maurice, seigniory of, granted to Maurice Poulin, Sieur de la Fontaine (1668), 35. Saint-Michel, seigniory of, granted to Le Gardeur de Tilly (1668), 35 ; without judicial rights, 147. Saint-Ours, Jean-Baptiste, Sieur d'Es- chaillons (or Deschaillons), leader in Haverhill raid (1708), 176. Saint-Ours, Pierre Roch de, officer of the Carignan regiment, obtains a seigniory in Canada, 70 ; takes part in expedi- tion to Fort Frontenac, 73 ; poverty of, 173; receives royal assistance, 174. Saint-Paul's Island, seigniory of, becomes property of Jacques le Ber, 172. Saint-Sulpice, Seminary of, at Montreal, obtains seigniory of Lac des Deux- Montagnes (1714), 61 ; excepted from provisions of act of 1854, 250. Saint-Sulpice, Seminary of, at Paris, ob- tains seigniory of island of Montreal, 61 ; receives certain favors regarding lods et ventes, 96 ; fortified mill of, I16-I17; obtains demolition of rival mill, 120; allowed extension of reser- vations, 135 ; lands held by, 181 ; secures revocation of judicial powers, 187 ; provisions in Treaty of Paris re- lating to, 190. Saint- Vallier, Jean-Baptiste de la Croix- Chevrieres de, second bishop of Quebec (1684-1727), buys Talon's seigniory, 165 ; on seigniorial right of advow- son, 181 ; looks with favor on seign- iorial system, 182 ; endeavors to secure concord between cures and seigniors, 186. Salieres, Colonel Henri de Chapelais, Sieur de, in command of the Carignan regiment, 67. See also Carignan-Sal- ieres. Sault au Matelot, seigniory of, granted to Louis Hebert (1623), 21. Saurel (or Sorel) Pierre de, officer of the Carignan regiment, receives seigniory on the Richelieu, 70. Schenectady, noblesse in the raid on (1689-1690), 176. Seigniories, population of, largely Nor- man, 10 ; La Roche authorized to make grants of, 18; number granted (1608- 1627), 21 ; Company of One Hundred Associates empowered to concede, 24 ; number granted by company, 25-26 ; too large in extent, 28 ; royal desire to reduce size of, 28-29 ; forfeiture of, for failure to cultivate, 30 ; Company of the West Indies empowered to make grants of, 31 ; Le Barroys instructed to concede, 32 ; surrender by company of its right to grant, 34 ; titles of, issued by Talon, 35 ; given to Carig- nan officers, 36 ; royal desire for re- trenchment of, 36 ; data regarding, to be prepared, 36-37 ; to be granted by governor and intendant jointly, 37 ; retrenchment of area ordered by the king, 38 ; increase in number of, 39 ; to be cleared forthwith, 43 ; few for- 294 INDEX. feited by the Arrets of Marly, 44 ; only five granted during the period 171 1- 1717, 44-45; royal decision to grant no more, 45 ; fcport of Catalogne on the state of, 45 ; ownership of, 46 ; re- sumption of grants of, 47 ; forfeiture of twenty, 49-50 ; procedure to be fol- lowed in making grants of, 50 ; shape and area of, 55-56 ; given to Carignan officers, 67-70 ; grants en arriere-fief within, 77-78 ; grants en censive within, 78-80 ; rules of succession to, 82-83; of the church, 1 79-182; sale of, to Englishmen, 192 ; granted by Murray, 193 ; description of, in Dur- ham's report, 237-238 ; valuation of, 248-250. Seigniors, powers in France, 4-5 ; hon- orary privileges in France, 12 ; rela- tion to dependents, 12 ; slow in clearing grants, 36 ; omit to give written titles to habitants, 39-40 ; forbidden to exact a bonus, 42-43 ; re- unite lands to their domains, 44 ; opin- ion of Catalogne on occupations and character of, 47 ; violate provisions of Arrets of Marly, 48 ; obligations im- posed upon, 56-76 ; drawn from mili- tary element, 67-70 ; rights over sub- seigniors, 77-78 ; judicial powers of, 147-152 ; honorary privileges of, 159- 161 ; relation to cures, 1 83-1 86; rights guaranteed in articles of capitulation, 189; ordered to enrol habitants for military service, 211 ; allowed to com- mute tenures, 223-225 ; character of English, 223-224 ; dissatisfaction with terms of abolition, 251-252. Seminary, Jesuit, at Quebec, receives seign- iory of Isle aux Coudres, 61; lands held by, 181. See also Jesuits. Seminary of St. Sulpice. See St. Sul- pice. Senneville, Monsieur de. See Le Ber. Seven Years' War, strength of New France in, 73; exhaustionof the colony by, 188; closed by Treaty of Paris, 191. Shelburne, Lord, secretary of state for the Southern Department (i 766-1 768), re- ceives report from Carleton on condi- tions in Canada, 196-197; compilation of laws sent to, 201. Shortt, Adam, on depreciation of card currency, 92. Sillery, seigniory of, revocation of judicial powers in, 154. Smith, Goldwin, on extent of banal exac- tions in Canada, 125. Smith, Judge, opinion on uniformity of the cens in Canada, 90. Sorel. See Saurel. Soulanges, Pierre-Jacques de Joybert de, officer of the troops, obtains a seigniory in Canada, 70. Sovereign Council. See Council (Sov- ereign). Special Court of 1854, decisions on jeu de fief, 77; on uniformity of the cens, 90; on scope of banal rights, 117; on seigniorial reservations, 137; on fishing rights, 139; onillegal practices of seign- iors, 139; on rights of seigniors in un- navigable waters, 142; provision in act of 1854 for creation of, 248; its com- position, 248; arguments of counsel heard by, 249; general decisions of, 249; opinions of judges of, 249-250; relation of its decisions to compensation granted seigniors, 250. Statute, 14 Geo. Ill, c. 83, 210; 34 Geo. Ill, c. 6, 219; 31 Geo. Ill, c. 31, 221; 3 Geo. IV, c. 119, 223; 6 Geo. IV, c. 59, 225; I & 2 Wm. IV, c. 20, 229; 3&4 Vict. c. 35, 239; 8 Vict. c. 42, 242; 12 Vict. c. 49, 242; i8Vict, c. 3, 245. Stuart vs. Bowman, case of, 195. Subinfeudation, articles in Custom of Paris relating to, 58-59; not made com- pulsory before 171 1, 59; relation of Ar- rets of Marly to, 61-62; provisions in draft arret of 1717 regarding, 62; pro- cedure of, 77-78. Sub-seigniories. See Arriere-fiefs. Succession to lands, rules of, by Custom of Paris, 82-83; to lands en seigneurie, 82; to lands en censive, S3; to lands en franc aleu, 83; effect on division of lands, 83-84; consequences in rela- tion to agriculture, 83-84; still follow French law, 250-251. Sulpitians, lands held by, 181; excepted from certain provisions of the articles of capitulation, 190. See also St. Sul- pice. INDEX. 295 Suite, Benjamin, on origin of French- Canadians, 9; on extirpation of Hurons, 26; on history of the Carignan regi- ment in Canada, 67; on origin of the oblong shape of grants, 80; on nature of exodus after the conquest, 192. Superior Council. See Council (Sov- ereign). Surrender, of Quebec to Kirke (1629), 25; of charter by Company of One Hundred Associates (1663), 27; of right to grant seigniories by Company of the West Indies, 34; of claims against Jesuits' estates by the Papal See, 250. Syndic, powers and duties of the, 30. Tach6, J. C, estimates per capita hold- ings of land in Canada, 85. Taine, H. A., on evils of seigniorial absen- teeism in France, 12. Talon, Jean, intendant of New France (1665-1668, 1670-1672), reports apathy of Company of the West Indies, 33; ac- cepts proposal of Le Barroys regarding land grants, 34; his liberal views, 35; returns to France for a two years' stay, 35; returns to Canada, 36; his project of military colonization, 68; arranges for grants of seigniories to Carignan of- ficers, 69-70; asks for wives for settlers, 71; aims to develop agriculture, 126; rebukes habitants for litigious disposi- tion, 153; establishes three villages near Quebec, 162; makes purchases of land, 163; receives title of Baron des Islets (1671), 163-164; gives up inten- dancy (1672), 164; receives title of Comte d'Orsainville (1675), 164; ser- vices to the colony, 165; family of, 165; asks for barony for Berth elot, 166; re- port on colonial noblesse (1665), 171 ; recommends patents of ennoblement for several prominent colonists, 172. Talon, Jean Francois, inherits his uncle's estates in New France, 165; sells lands to Bishop St. Vallier, 165. Terrier. See Census. Thou, Christofle de, famous jurisconsult, supervises revision of Custom of Paris (i579-i58o),8. Tilly, Charles Le Gardeur de, first seign- ior of St. Michel (1668), 35; member of the French noblesse, 171 ; poverty of, 174. Tithe, ordered by Bishop Laval, 183; ob- ligation made permanent by royal or- ders, 182-183; amount of, and method of collection, 183; still exacted in Que- bec, 184; not collected on products other than grain, 234. Tocqueville, Alexis de, on merits and faults of the old regime, 15; on nature of tenure en franc aleu roturier, 53; estimate of profits of seigniorial juris- diction in France, 152. Toll, amount of, in seigniorial mills fixed by decree of 1667, 103-104; millers forbidden to take more than legal rate of, 105; to be reckoned upon cleaned grain, 116. Tracy, Alexandre de Prouville, Marquis de, lieutenant-general of the forces in New France (i 665-1 667), comes to Canada with Talon, 33; accepts pro- posal of Le Barroys regarding future land grants, 34; endorses Talon's pro- ject of military colonization, 68; recom- mends various colonials for rank in the noblesse, 172. Treaty, of Saint-Germain-en-Laye (1632), 25 ; of Paris (1763), 142. Ursulines, of Quebec, lands held by, 181 ; of Three Rivers, receive seign- iorial grant (1727), 47; lands held by, 181. Vallieres. See Leneuf de la Vallieres. Varennes, seigniory of, banal rights in, 108. Varennes, Rene Gaultier (or Gautier) de, officer of the Carignan regiment, ob- tains seigniory in New France, 70. Vaudreuil, Pierre-P'ran^ois Rigaud, Mar- quis de, governor of New France (1755— 1760), signs capitulation of Montreal (1760), 1 89. Ventadour, Henri de Levis, Due de, vice- roy of New France (1625-1627), con- firms first seigniorial grant (1626), 21. Vercheres, Francois Jarret de, officer of the Carignan-Salicres, obtains seigniory in Canada, 70. Versailles, Arret of (1732), 49. 296 INDEX. Vexin, French (Vexin le Frangais), nature of, 63 ; provisions relating to relief, 63 ; followed by Murray in seigniorial grants of 1762, 193. Victoria, queen of Great Britain and Ire- land (1837-1901), recognizes the Baron de Longueuil, 169. Victoria Park, at Quebec, formed from part of Talon's seigniory, 165. Vieuxpont, seigniory of, granted without judicial rights, 147. Vincelotte, seigniory of, complaints re- garding the seigniorial mill in, 112; erection of a banal oven in, 121. Voltaire (Francois-Marie Arouet), on the frequent revisions of coutumes in France, 11. Waters, navigable, rights of seigniors over, 141 ; unnavigable, rights of seign- iors over, 142. West Indies. See Company of the West Indies. Wheat, payment of rentes in, 93 ; table showing fluctuations in price of, 94. Wilcox vs. Wilcox, case of, 195, Wilhams, Solicitor-General J., opinion on rebates of lods et ventes, 96. Wolfe, Major-General James, besieges Quebec (1758), 188. Wurtele, J. S. C, performs last act of fealty and homage (1854), 57. Yamaska, seigniory of, given to Ramezay (1713), 44. I ^■>u \i THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara Goleta, California THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW. C!ULATloM AiVL^k ISPLAY PERIOD 8,'60(B2594s4)476 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 879 226 9