THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES i D C C U K E N T S relating to the Seigniorial Tenure IN CANADA I. The Opinions of Hon. justices Caron, Day, Badgeley, Meredith and Smith, on Questions submitted to the Special Court for the Abolition of the Seig- tilorial Tenure 1854. 2. The Seigniorial Tenures Amendment Act of 1856. 3. Index to the Seigniorial Tenures Abolition Act. (Collected 1894/98) f lower-Canada reports. DECISIONS DES TRIBUNAUX ' DU BAS-CANADA. jSEIGNIORIAL (tUESTIOniS; A C0mxILA1>N CoBliining Iho Seigniorial Act, the Amendment to liie Seigniorial Act, of 1855, the Qaestisai inbmilted bj theAltornej Genera! for lower Canada, the Coantcr-Qaeslions subnitted bj diTcrs Seigniors, the Proceedings and Decisions of the Special Conrt consliluled under the anthoritj of tht Seigniorial Act of 1854, the Pleadings and Memoirs of the Adrocates, and tbe ObserTations of the Judges, &c., &t. ■ILUO «_]JJJLUJ Editors : MM. LELIEVRE & ANGERS. PRINTED, Pautly at Quebec, by A. Cdif , & partly at Montreal, BY DUTERNAY BROTHERS. 1856. \ TABLE Of the matters contained in this volume. Hi PAGES. 1. Opinion of the Honorable Bowen, Chief Justice la 2. Opinion of the Honorable Justice Aylwin 16 3. Opinion of the Honorable Justice Duval 1 c 4. Opinion of the Honorable Justice Caron Id 5. Opinion of the Honorable Justice Day le '^ 6. Opinion of the Honorable Justice Smith If 7. Opinion of the Honorable Justice C. Mondelet 1 g 8. Opinion of the Honorable Justice Meredith 1 h 9. Opinion of the Honorable Justice Badgley 1 i - 10. Amendment to the Seigniorial Act of 1856, with an index to the Seigniorial Acts ij 1 C>02(i^!^ Id P I XI 1 N OF THE HOXORABLE JUDGE CARON. The Legislature of the Country, acceding at last to the pressure of public opinion, ^vhich for a long time past de- manded the abolition of the feudal system, and the suppres- sion of the Seigniorial rights in that part of Lower Canada which was still subject to that system, enacted, during the Session of 1854, a law which will be for ever memorable in our history. That law has effected, without any commo- tion or tumult, a reformation of the most vital importance, and has created in our institutions a remarkable change, which had become indispensable, and which could not have taken place elsewhere unless during a period of turmoil, revolution and anarchy, and even then it must have been brought about by violence, injustice, and spoliation. As might be expected, a change such as that, ordered under such circumstances, could not take place, unless upon a just basis, and in such a manner as to render full and entire justice to all the parties who would be affected by it, therefore our law of abolition of 1854 lays down the princi- ple, that the suppression of the feudal rights and duties cannot take place, unless the Seignior be guaranteed a reasonable indemnity for all the lucrative rights which he held by law, and of which this enactment must deprive him. It also declares that in consequence of the immense advantages ^vhich the Province in general must derive from the abolition of these feudal rights and duties, and the establishment of a free tenure instead of the one under which property subject to it, had been held up to that time, it was expedient to assist the Censitaire to redeem those charges. 2d With a view of carrying out these declarations and of granting suitable indemnity and assistance to those entitled to it, and rendering to each man the justice due to him, the law provides for the nomination of Commissioners upon whom those duties devolve, and who are bound to make, in such manner as may be pointed out to them, such valua- tions and estimates as may be necessary to ascertain the value of those rights, charges and obligations, the abolition and suppression of which will give a right of indemnity, com- pensation, or reimbursement, together with the proportion of them in each case. It was easy to foresee what numerous difficulties those Commissioners would have to encounter in the execution of such varied and complicated duties, and what serious and perhaps irreparable errors they might commit, more par- ticularly in the interpretation of the law o{ fiefs which is so obscure and so uncertain, and in the application of that law to the particular cases which would come up before them. In order to assist them in this task, to direct them in this operation, and to point out to them the principles of law by which they were to be governed, and upon which they were to base their decisions, the Legislature, at the time of enacting this law, created an exceptional Tribunal, com- posed of all the Judges of the two principal Courts of the Country, upon whom it imposed the duty of pronouncing their decisions and expressing their opinions upon the questions which would be submitted to them by the Attorney General, touching those points of law which it was believed would require the consideration of the Commissioners, in determining the value of the rights of the Crown, of the Seignior, and of the Censitaire, and also touching such sup- plementary questions or counter-questions which every Seignior would have a right to make in support of his rights and pretensions. Jn order to discharge the duty imposed upon him, the 3d Attorney General has prepared a series of questions which comprise and recapitulate the probable difficulties which the Commissioners will have to meet ; and on their part, several Seigniors, availing themselves of their right prepared supplementary questions or counter-ques- tions, together with some propositions which they wish to maintain in their favor. Those questions and counter- questions have been argued and maintained before this tribunal, by the Counsel retained on both sides with such zeal, skill and talent that nothing more can be desired, and in a manner fully equal to the important interests entrusted to them, and which they had undertaken to maintain. The importance of those interests, together with the de- licacy and difficulty of the questions to be decided, has imposed upon the Judges forming this tribunal, a responsi- bility, the importance of which they fully feel, more particu- larly when they consider that the decision which they are to pronounce upon each of these questions and propositions must guide the Commissioners in their determination, and must be considered by them as a final judgment, without appeal, binding them in their adjudication upon every similar or anologous case Avhich may be raised before them. In order the more easily to fulfil that portion of the duty which has fallen upon me as one of the members of this Tribunal, the few remarks which follow have been written. They are the result of the researches and reflections made by me before coming to a final decision upon the different questions which we were called upon to solve. In the preparation of my work, the plan which I follow- ed was, in the first place, to examine, with all necessary care, the questions and counterquestions proposed to this Court in their entire ; and without undertaking to answer each one separately, I divided them into a small number of classes, comprising in a general manner the princi])al 4d subjects to wiiich they have reference. I have divided those classes into a small number of questions which I have put to myself, and which I have answered according to such principles as I thought most applicable. I have made use of my answers to these questions as the basis for the solu- tion of such questions as were put to us pursuant to the law. The whole of the subject contained in these questions and counter questions may be summed up in the three great divisions which follow : 1. The nature and extent of the right of ownership of the Seigniors of this Countiy, in their jf?e/j$ and Seigniories. 2. The nature and extent of their right of Banalite. 3. The proprietorship of the Rivers and running waters^ as well navigable, as unnavigable, FIRST DIVISION. Tlie nature and extent of the right of the Seigniors over the lands composing \heh fiefs and Seigniories. The first division may be subdivided in the following manner : 1. According to the deeds of concession from the King of France, and the laws in force at the time they were granted, did the Seigniors of the country acquire the full and entire ownership of their Seigniories ; if not what were the limitations and restrictions imposed upon them ? 2. If the Seigniors did originally obtain and acquire this full and entire ownership without any restrictions, has that right been limited and restricted since then, what is the nature of those limitations and restrictions, and when and in what manner were they imposed ? 3. If the Seigniors were originally obliged by their titles, 5d tnf since then have been constrained by law, to concede the lands within their Seigniories, were they bound to do so at a fixed, uniform, and determined rate ; if so what was that rate, Avas it the same for the whole country, did it vary in different Seigniories, and in what manner was this rate determined ? 4. Whether the rates of the concessions were fixed and determined, or whether they were unlimited and voluntary, and dependent on the stipulations entered into between the parties, could the Seigniors, in their titles, legally impose other dues besides cens et rentes^ and annual dues ; or were they allowed legally to stipulate such other charges, reser- vations and restrictions as the Censitaires might be willing to submit to ; if such charges and reservations were prohi- bited, were they, void of themselves, or could they merely he declared void ? 5. Upon what laws is this prohibition founded ? 6. If at any time any competent authority has passed any Legislative enactment relative to fixed and limited rates, and to the prohibition to concede otherwise than for cens et rentes^ and annual dues, have those laws or Legislative enactments been followed up and enforced, or have they been abandoned ; have they fallen into desuetude and thereby become null and of no effect ? 7. If those laws were still in force at the time of the cession of the country, have they ceased to be so since that time, either in consequence of the change of Government and of the influence which such a change would have on laws of such a nature, or because there have been no tribu- nals in the country since that time competent to carry them out ? 8. If those laws did exist, were they only for the ad- vantage of individuals, so that these latter might renounce them and deviate fi-om them, by making contrary stipula- 6 d tions, or were they laws of public order [d'ordrc public) so that they could not be departed from by private individuals in any manner or under any pretext whatever ? The answers to those several questions will be found in as many paragraphs which are in the following pages : § 1. From the time when the fii'st concessions of Seignior- ies were granted in the country, the custom of Paris was the law in force, having been introduced both by the Edict creating the Superior Council (April, 1663,) and by the deeds of concession and other documents anterior and sub- sequent to the said Edict. December, 1640, Concession of the Island of Montreal to the Seminary, — and, December, 1640, Concession to Chavigny by the company of New-France, — Establishment of the Company of Xew France (1627-28.) In order, therefore, to be able to state what was the feudal law of Canada at the time of the first establishment of the country, (we may say from 1627 to 1711,) from the forma- tion of that Company up to the arrets of Marly, it is neces- sary to ascertain what was at the same period the law which governed fiefs in the country subject to the Cus- tom of Paris ; for it is according to the dispositions of that law that the right of the Seigniors of the Country must be judged, so long as they are not governed by some special law and have not been altered by the deeds of concession, which, as they emanated either directly or indirectly from the King, the Seignior paramount of the whole of New France, might legally contain Avhatever charges, clauses and conditions as he or his representatives chose to insert, although they might be contrary to the common law of the country. In France the Seigniors had an absolute right of property over Iheir/e/i, which allowed them to dispose of the land forming those j'i'e/i', upon whatever conditions they thought proper. The right of disposing of their lands was only Id restricted in so far as the quantity which they might alienate was concerned ; this restriction is to be found in articles 51 and 52 cf the custom, which establishes the full power which the Seignior has over his fief. The regulations con- cerning the power held over the fiefs^ were, as we know, all in favor of the dominant Seignior, in order that he might be protected, in his rights, against his vassal, and in order that the latter should not have the power of putting himself in such a position as to be unable to fulfil his obli- gations as a vassal, which obligations formed part and parcel of the feudal system and were imposed upon him both by his titles and by common law. To attain the object which I have at present in view it is unnecessary to discuss and examine into the effect of those two articles of the Custom,the only object of which was to restrain and limitthe right which thevassal had in France, of disposing of his /^e/", by alienating more than a certain portion of it : no per«^on has ever contended that this right does not belong to the Seigniors of this country ; not only is the most unlimited power given to them to dispose of their lands, but it is even contended that they obliged them to alienate those lands. It is sufficient to say that in France it was optional with the Seignior to retain the whole of his (ief^ of whatever extent it might be, he might make use of it as he thought proper, he might cultivate it or not, accordingto his own option, without being bound to render an account to any person whatever ; but when he did alienate any portion, with the exception of such reservations as were made in favor of the higher powers, he could alienate upon such charges and conditions as he thought proper to impose, if the purchaser submitted to them. In short the Seignior in France was not bound to alienate the lands composing his JieJ\ no person could oblige him to do so, but he had a right to alienate a certain proportion of them upon such charges and conditions as might be agreed upon. We have already stated that the Seignior in Canada would be in the same position, unless that position has been altered either by law, jurisprudence or by titles. During the space of time, which we have denominated " the commencement of the establishment of the country" (from the time of the formation of the Company of New France, 1627-28, to the Edicts of Marly, in 1711,) I do not find any Legislative documents, emanating from the Legis- lative authority of that time, or any law which can be con- sidered as having altered, in a positive and direct manner, the rights and obligations of the Seigniors arising from the common feudal law of France, unless it is desired to give a legal character to the two decrees of revocation and retrenchment passed during that time, the one bearing date the 20th April, 1663, and the other the 4th June, 1675. But these two decrees, which only have reference to certain particular concessions upon which the necessary works and clearings had not been made, and which, moreover, are applicable to all the uncultivated lands of that time, and therefore include the lands held en routure as well as those held en fief^ cannot be considered as establishing in a general manner the law oijiefs^ and as introducing formal and durable changes. These decrees were merely the regulations which were made to remedy the inconveniences mentioned in them, and they ceased to be in force from the moment of the attainment of the object for which they had been passed; it is therefore out of our power to infer from them that the Seigniors were obliged to concede their lands, upon one condition more than upon another. The whole result, which is very important, is tliat in the two cases in question, the King publicly announced his desire and firm determina- tion to have the land of the country cleared, cultivated and settled, and made a summaiy and expeditious use of the right, which he maintained he had, of punishing all infrac- tions, in that respect, of his royal will and pleasure, by 9 d confiscation and retrenchment. I say that this result is important, since it leads us to inquire into and ascertain the source of such a power, which cannot be attributed to an arbitrary will, unless no other cause can be found. The source therefore of this exorbitant power, which did not exist in France and is contrary to common law, is to be found in the deeds of concession and other public documents of the period of which we speak. In the public documents emanating either from the sovereign him- self or from his representatives, Ave everywhere discover the strongest expression and the most evident proof of his intention to use all the means in his power to settle and colonize the country, and to cause the land to be cleared, cultivated and settled upon, together with the firmest de- termination to set aside the obstacles which might oppose the fulfilment of his plan, and severely to punish those persons who should put any obstacles in the way. The enumeration of all those documents would be too long, it will be sufficient to mention a few of them, from which we may judge of the others, and in order to be brief I will cite, without any comment, from the two arrets which have been spoken of: 1. The Act creating the Company of New France in 1627-28. 2. The resigna- tion of that Company, and more particularly the acceptance by the King of that resignation in 1663. 3. The forma- tion of the Company of the West Indies, in 1664. 4. The revocation of that Company in 1674. 5. The lengthy cor- respondence betAveen the Colonial authorities of Canada and the Colonial Department in France during the years 1707 and 1708. But if the King's intentions, in relation to that matter, are made clearly manifest by means of those documents, and many others which might be cited, we find, in the deeds of concession of the period in question, the positive proof that those intentions were perfectly understood by the 10 d parties to whom those concessions were made, and that those parties had formally promised to agree to them. In order to become satisfied of the truth of this assertion, it is only necessary to refer to the numberless grants of Seignior- ies, in which the obligations of conceding or cultivating, of settling upon or causing the land which had been granted to them to be settled upon, is mentioned in the most clear and express terms. Within the lapse of time which comes under our notice, we find a number of titles of different dates, which contain that obligation, which was moreover so reasonable, so conformable with the position of the country, and in such harmony with the interests of the Seigniors themselves, as well as with that of the colony itself. Those titles have been recapitulated in Mr. Dunkin's work, to which I refer generally, confining myself to the citation of a few concessions only, which will give an idea of the others. According to my mind, although those conditions were stipulated in the titles, they did not prevent the Seigniors from being the real proprietors of their fiefs ; those condi- tions do not constitute the Seigniors mere trustees, as it has been pretended they did, into whose hands all the lands of the country had been confided for the purpose of being subsequently distributed to such persons as might require them. No, the Seignior in this country, as in France, was the master ofhis fief he had the dominium directum^ and dominium utile of it, he could use it and cultivate it himself, and retain for himself such portion as he thought proper ; the French Government, whose object was to colonise and settle the country, merely saw that the Seigniors did not, either through apathy, negligence, or false views of pros- pective profit and speculation, retard the realisation of plans which would benefit them as well as the other settlers. In one word, the object in view was, and it was all that could be reasonably desired, that the conceded lands should be 11 d cleared, cultivated and become inhabited, not only in order that they should not remain useless and valueless for those to whom they belonged, but also that they should not be- come an obstacle and a nuisance to those persons who were desirous of deriving benefit from their own lands. In several of these titles we actually do find the condition, that the Seigniors shall he bound to concede^ but that clause was about the same as the one to cidiivate^ settle upon and im- prove ; because it was well known that those lands could not be obtained unless by conceding, sousinfeodant ou acansant. We will now refer to some of these concessions. The first that I cite is that of the 16th January, 1634, to one Gifiard, of the Seigniory of Beauport, that concession confirms what I have just stated ; the following clause is to be found in it : " On condition, upon each mutation, of the payment'of " one year's revenue of whatever the said Gifiard " may have reserved for himself, after having grant- " ed a fief or a cens or a rentes the whole or a portion " of the said premises." By that clause GifTard was at perfect liberty to grant ajief or a cens all the lands of his Seigniory, if he thought proper to do so, but it was equally optional with him only to grant a portion, and to retain as much as he pleased ; and even upon what he thus re- tained, he paid no dues to the Sovereign who had only stipulated payment upon what was sold, and not upon the remainder. The concession of the 15th January, 1626, contains a like clause and gives rise to the same inference ; there are several more in the same terms, or in analogous ones, and I conclude from that, that the Seigniors were bound by their titles to cultivate their lands, but were not absolute ly obliged to grant them a fief or a cens, nor even to alienate them at all. 12 d But in order to become convinced as to the existence of the obligation on the part of the Seigniors, by virtue of their titles, to work and cultivate those lands or have them culti- vated, it is only necessary to refer to some of those titles, in which that obligation is fally and plainly expressed. The following citations are due to Mr. Dunkin, to which I refer, merely giving for my own part the numbers of the titles pointed out; to wit : No. 5, 8, 9, 10, 12, 13 and a great number of others, in which is mentioned, in varied terms, the obligation which the grantees contracted or had contract- ed of cultivating the lands which had been granted to them, and of introducing into the country persons able to do so. In other titles such as No. 43, 55, 57, 61, 62, 63, 64, 65, 66, 67, and several others, the Seignior is obliged per- sonally to reside upon his Seigniory (tenir feu et lieu) and to force his tenants to reside upon the lands {tenir feu et lieu) which may have been granted to them, and to make an express stipulation in their deeds of concession to that effect, in default whereof the said lands would return to the Seigniors. Finally there are others wherein it is stipulated that, with- in a certain time, the Seignior shall commence the clearing of his concession, in defavilt whereof the lands forming the same shall be reunited to the domain of the Company, (see Nos. 135, 140, 163, 167, 169, 177, 192, 202, 258, 267,328,) or else he shall have them cleared and settled upon, and put up buildings and stock them with cattle within two years, otherwise the grant shall become void, (see Nos. 173, 174, 175, 176, 282, 287, 295, 321.) All those concessions and many others contain one of the clauses above mentioned, that is to say, 1. To reside upon the land [tenir feu et lieu) or cause others to reside upon it \ 2. To bring over to the country a certain number of persons to reside upon, establish and cultivate the said lands ; 3, To clear them and cause them to be cleared within a certain 13 d time, in default whereof the concession should become void. 'J It is nevertheless true that there are some titles, and they are sufficiently numerous, in which no mention whatever is is made of that obligation, neither in one form nor in another ; it is not to be understood trom this omission that the concessions which do not contain that obligation, have been made upon any other conditions than the others, and that the persons to whom they had been granted, were not bound to cultivate, improve, and reside upon the said lands, and cause them to be cultivated, improved and inhabited, and that this is the place to apply the maxim, inclusio unius fit exclusio alterius. Such a conclusion would be absurd, since it cannot be reasonably imagined that the authorities had an idea of making a difference between some of the Seigniories and the others, upon such an important point ; that they could have desired to see some Seigniories improved, while they allowed others to remain without any improvement ; such a sup- position is not possible, since it would have the effect of entirely paralysing the settlement of the coun- try, which they were so desirous of colonising, in such a case these Seigniories would become an obstacle to the clearing and cultivation of the others, upon which that obligation had been imposed under pain of forfeiture. It is much more natural to suppose that, in those concessions where that obligation is not expressed, it has been under- stood ; it was not thought necessary to insert it, since the interest of the Seigniors being, as it has been before stated, identical, in that respect, with the interest of the State, it might be expected that they would act of themselves in accordance with the requirements of that interest, without its being necessary to state it in a formal manner. From all that prcedes I come to the conclusion (and I thus answer the first question I have put to myself) that within the interval which elapsed from the settlement of the country up to the year 1711, the custom of Paris has been the common Ud feudal law of Canada ; that during that period no general law was promulgated which altered it, and, therefore, accord- ing to law, the rights and duties of the Seigniors, at the period in question, were the same as they were in France in such localities as were governed by that custom ; conse- quently the Seigniors, here as well as there, were the pro- prietors of the lands composing their ^p/5 ; and here as well as there, they had the domirvhim directum.^ and the dominium utile, but, nevertheless, that right of property was, from the commencement, limited and circumscribed according to the circumstances of the country, to the obligation of resid- ing upon the said lands and causing them to be settled and cultivated either by themselves personally or by their ten- ants ; that this obligation was imposed upon them by their deeds of concession, in a number of which it is expressly mentioned, while in the others it is perfectly understood, as it is established by the regulations and public documents previously mentioned, and by others emanating from the Royal authority which, although it was not in the form of a law, and did not impose any punishment against those con- travening it, was nevertheless of such an obligatory charac- ter that it could not be misunderstood, and in fact was not misunderstood. §2. But as experience has proved, that neither the clauses contained in the titles, nor the warnings from the authorities, nor the self-interest of the Seigniors were sufficient motives to induce them to carry out an obli- gation so important to the prosperity of the country, the King of France, being informed by his representatives in the colony of the abuses which existed in that respect, thought the time had arrived when it was no more right to leave to the Seigniors the performance of a duty which they had so long neglected to fulfil, and the non-execution of which had been so prejudicial to the interests of the colony. It was for these reasons that the King of France promulgated the ^n'^^ of the 6th of July, 1711, which may be considered as the first legislative document concerning 15 d the concession, and the manner of disposing of the lands forming the Seigniories of Canada. The preamble to this Arrit points out three abuses which the Seigniors of the country were guilty of ; the first is that the lands which had been granted as Seigniories were not settled upon nor cultivated as they should have been ; the second is that the Seigniors themselves had not yet com- menced to clear the land in order to establish their domain, and the third is, that some Seigniors refused to concede lands to such settlers as required them, with a view of selling them. It was for the purpose of remedying these abuses that this ^n-^/ was made, and that it was thereby ordained : — 1. That the proprietors of those Seigniories who had not cleared their domain, and who had placed no settlers upon their lands, should be bound to put the land under cultiva- tion and have it settled within one year from the date of tha Arreij in default whereof, after the expiration of that time, the said Seigniories were to be reunited to His Majesty's domain, at the suit of the Attorney General, and by virtue of the ordinances to be passed for that purpose by the Governor and Intendant. 2. That the Seigniors should concede to the settlers such lands as they might require in their Seigniories on condition of the payment of dues, and should not require any sum of money on account of such concessions, in default whereof those settlers should have a right of demanding those lands by summons and, in case of refusal, to appeal to the Governor and the Intendant, whom his Majesty commanded to concede the lands required within the said Seigniories for the same dues as were imposed upon the other lands conceded within the said Seigniories, which dues should be paid by the new settlers into the hands of his Majesty's Receiver, and the Seigniors should have no share whatever therein. The first part of this decree does nothing more than order under form of law, the putting into execution of the clauses we have mentioned, which were either expressed or un- derstood in all the deeds of concession, and which obliged 16^ the Seigniors to live {ienir feu et lieu) upon their lands, to cultivate and improve them, and also to cause their tenants to reside upon them, and oblige them to cultivate and im- prove the lands which were granted to them. By this condition the King of France was desirous of making up for many omissions which had been made in certain deeds of concession, and of establishing uniformity throughout all the Seigniories, and more particu- larly of providing expeditious and sure means of enforcing the fulfilment of an obligation of so much importance, by establishing a penalty with which they would be visited. This clause in the law, refers both to the concessions already made, and to those which might be made thereafter. There was no injustice in this, if it be true, as it has been stated above, that the concessions granted up to this time contain- ed the obligation, either expressly made or implied, that this law was to be put into execution. As to the second enactment in this decree, it is without doubt, introductory of a new right, and effected a remarka- ble alteration in the freedom which the Seignior had pos- sessed up to that time of disposing of his fief as he thought proper. For we have already remarked that, although the Seignior was bound to cultivate his lands, reside upon them and improve them, he had nevertheless full and en- tire liberty as to the mode by which he attained that object ; he could either cultivate them himself or by persons in his employ ; he could sell, give, exchange or otherwise dispose of his lands. When conceding, which was the easiest system, and the one generally followed, he could do so under such charges and conditions, and at such rates and terms as might be agreed upon with the Censitaires. Before 1711, there was no law, either expressed or understood restraining the powers of the Seigniors in those respects ; so long as the lands were settled and cultivated, he had fulfilled his obli- gation, and nothing more could be required of him. lid The preamble to this decree set forth a state- ment which, in point of fact, was false, that is to say, that the right of selling and disposing of their lands on any other conditions than for dues, is prohibited by the clauses contained in the deeds of concession to the Seigniors. This statement is incorrect and is not founded on fact ; no such prohibition is to be found in the titles ; nevertheless it was quite sufficient that it should be contrary to his Majesty's intentions, as it is stated in the preamble to this decree, for the King of France, whose authority was unlimited, legally to ordain, as in fact he did ordain, that in future the Seigniors should be bound to concede lands in their Sei- gniories to such settlers as would request them to do so. This provision of the Arrit, although based upon an erroneous statement, is not the less binding for that reason, and from the date of its promulgation, the Seigniors of the countiy had no right to receive any sum of money for the concessions of their lands, nor to sell them. From that time they could be obliged, by the means provided by the Arr^t^ to concede for dues alone ; and we must understand from this, that from the time of the passing of that law, the Seigniors were not only obliged to concede their lands to such persons as would re- quire them, but moreover they were not at liberty, in these ■concessions, as they had previously been, to impose such charges, reser\'ations and restrictions as they thought proper ; but that the only charges which they had a right to ■stipulate for, were the cens et rentes or a presentation either in grain or money or other produce, payable annually, as intended by the word dues [redevances] which means a debt^ charge or rent to be paid every year. Consequently from the time of the passing of the ArrSl of Marly, the Seigniors were bound to concede on condition of payment of dues only, {a titre de redevances.) All other charges in the form of reservations and restrictions were illegal and contrary to this law. But the right of the Seignior thus limited, was not re- 18 d stricted, so far as the amount of dues to be imposed is con- cerned. In that respect no restriction was made by this Arrety which did not establish the rate at which those con- cessions were to be made. It is only in the case, foreseen by the decree, where the concession was to be made by the Governor and the Intendant, that it should be made " upon the same conditions as were imposed for the other lots of land conceded in the same seigniories." The reason of such a condition is easily understood ; the Governor and the Intendant had no right of ownership over the lands which they were empowered to concede ; they could not make any stipulations with the purchasers ; they required a certain and uniform rule of conduct, applicable to all cases ; and this rule was naturally applicable to the concessions already made in the seigniories, wherein the lands to be conceded were situated. No more just or satisfactory suggestion could be made with reference to the conditions to be inserted in the concessions, than to adopt those which the parties interested had freely agreed to in the other deeds of concession in the same locality. This rule was moreover conformable in every respect to the com- mon law observed in France, according to which, in those cases where the original deeds of concession could not be produced, either by reason of their having been lost or from any other cause, the Censitaire of a lot of land was bound, so far as the Seignior was concerned, to submit to the same charges and dues as were imposed upon the lots of land situate in the same seigniory, and in certain cases to those imposed in the adjoining seigniories. Consequently, that portion of the ^rre7 of 1711, which establishes the rates at which the Governors and the Intendants were to grant con- cessions, is merely the expression of the common law. But the same reason did not exist where the Seignior was the person who conceded to the Censitaire who freely accepted ; both being parties to the agreement, so far as the amount of cens et rentes and annual dues was concerned. 19 c^ they could make such stipulations as they thought proper, since the law did not deprive them of that right. From all this, we must conclude that the first ArrH of Marly limited the rights of the Seigniors of the country, so far as the right of keeping and retaining their lands, and the obligation which had been imposed upon them to con- cede them for dues alone, (redevances) were concerned. But with reference to the amount of those dues, {redeva?ices) they had the right to settle them as before. The ArrSt of 1732 did not make any innovation in that respect ; it merely confirmed the Arret of Marly, and order- ed the more precise and rigorous execution of it, and more particularly of that portion of it which prohibits the Sei- gniors to sell their forest lands, and which commands them to concede for dues alone (redevances.) It is proper to remark here that, in several deeds of conces- sion of Seigniories granted immediately after the Arret of 1711, is to be found the stipulation : "to concede for dues " alone {redevances) and not to insert any other condition in " the deeds than for dues alone {simple titre de redevances^\) (see Dunkin's Digt. Nos. 369, 370, 374, 375, 376,) and that in several other subsequent deeds is to be found another clause obliging the Seigniors to concede " for the custo- mary cens, rentes or dues," (see Nos. 380, 383, 384, 385, 386, 387, &c.) These conditions, which are almost in the very words of the An-^t of 1711, are not found in any of the titles granted previous to the passing of this Arr^t, from which we must conclude, that it was in order to put this ArrSt into force^ that they were inserted, and they assist in confirming and explaining that Arret. In framing my answer to the second question I re- capitulate what I have said by stating : that the right of pro- perty in the land belonging originally to the Seigniors, sub- 20d ject only to the obligation expressed or understood in the deeds of concession, of residing upon them, of cultivating and of increasing their value, has since then been further limited by the ^rr^^ of Marly of the 6th of July, 1711, which deprived the Seigniors of the right of disposing of their lands upon such terms and conditions as they thought proper, and commanded them to concede those lands for dues alone (a simple aire de redevances,) and this was under the penalty of reunion to the domain of the Crown, according to the terms of the said ArrSi by which the obligation of residing upon, establishing and increasing the value of the Seigniories was put into the form of a law and was made general and uniform for all the Seigniors, independently of the deeds of concession. § 3. But the obligation to concede for dues alone, imposed upon the Seigniors by the Arret of Marly, is not accom- panied by any obligation to concede at any certain rate more than at another. Not a word is said about it in this Arr^t, and everything is left in the same state in which it was at first. This law did not, any more than any other, either anterior or subsequent to it, fix or limit the rate at which concessions were to be made ; the law of the country did not establish it either, since we do not find in any of the decisions of the tribunals, any fixed rate or uniformity in the acknowledged rates, there being a variance in that res- pect at different times and in different Seigniories ; from this I must conclude, while giving an answer to the third question, that, neither according to law, nor according to jurisprudence or custom, there was no uniform and fix- ed rate at which all the Seigniors were bound to concede their lands ; that they were always free legally to stipulate with their Censitaires for such an amount of dues, {rede- vances) as the latter chose to submit to. § 4. But by the ArrH of Marly, confirmed in that respect by that of 1732, the Seigniors are particularly commanded to con- cede merely on condition of payment oi dnes^{simples redevan- c e;) therefore, all the charges, restrictions and reservations which do not come under the category of dues, {redevances) are 21 d prohibited by law, and must be looked upon as being void. I shall not at present inquire whether these charges and reservations, over and above the dues (redevances) are null pleno jure, or if it is merely possible to have them annulled ; for the present I shall only state, with the understanding that I shall hereafter have a right of giving my reasons, that those reservations being prohibited by a positive law, the Seigniors have no right to make them the foundation of a claim for indemnity on account of the suppression of rights which they had arro- gated to themselves contrary to law, although it was done with the consent of the Censitaire ; more parti- cularly when, as in the present case, the Censitaire is not the only one who is called upon to pay this indemnity, but that a large portion of this indemnity has to be paid out of the public Treasury, while the country has had nothing to do with these illegal stipulations. Therefore to the fourth question which I have put, I answer that the different reservations contained in the deeds of concessions, over and above the annual cens et rentes and dues, are illegal and contrary to a positive law, and cannot be a reason for paying an indemnity to the Seigniors. § 5. The illegality of those reservations which do not come within the category of dues, {redevances) and could not legally form part of the conditions of the concessions, is founded upon the first ArrU of Marly, which is confirmed by that of 1732. § 6. It will be seen that the Arrit of Marly, as I under stand it, has not fixed, nor limited, the rate at which the Seigniors could make their concessions ; that no other law has deprived them of the right of making such conditions with their Censitaires as they thought proper in respect to 22 d the amount of dues to be exacted. The laws which pro- hibit the Seigniors from selling their forest lands, and which oblige them to concede those lands on the condition of the payment of dues alone, are the Arrets oi Marly and of 1732. The difficulty which I have to solve in order to answer the sixth question, is to ascertain if those two laws have fallen into disuse, or if they are still in force. The affirmative is maintained on behalf of the Seigniors who pretend that those laws are not now in force, that they have fallen into disuse, in so far as the obligation is con- cerned under which they were, pursuant to those Arrets^ of conceding their land to the Censitaires who demanded any on condition of the payment of dues only ; and that for two reasons : 1. because previous to the conquest these laws were not put into force ; 2. because since the conquest, they were not enforced, and they could not be enforced, there being no tribunal competent to enforce them. These laws did exist, they had been legally promulgated, and at one time they were in force in this country. It re- mains for those who pretend that they have been abrogated, to show what law, custom, or jurisprudence could have caused the abrogation of them ; the onus pro- bandi remains with them, and so long as they have not established that, these laws may be looked upon as being in force, and may be set up against them. Let the authorities which establish what is necessary in law, to cause the abrogation of any law by its not being in use, or because it was not conformable to the ordinary custom be read, it will then become necessary that the parties, who invoke the nullity of these laws should show that in point of fact what is necessary to establish such nullity can really be invoked against those laws. It is not sufficient for this purpose to say that no judgments were rendered upon those laws ; it is possible that the Seigniors did not expose themselves to the penalties 2Sd imposed by the decrees in question, or, that if they did so, it was not remarked, or that the law was not carried into effect. It would be necessary to establish that the question was regularly submitted to a tribunal, and that by a series of uniform decisions given after due examination, and in cases where the question had been raised by the parties and submitted to the judges, it has been decided contrary to those laws. §7.1 shall now pass on to the seventh question by which it is asked whether the cession of the country, and the change of Government, could affect the validity of those laws, if they were previously in force ; and if since that time, there have been any tribunals having authority to put those laws into execution. The laws relating to fiefs form, of necessity, part of the civil law of the country, and those laws were guaranteed to us by the capitulation and the treaties. The Arrets oi 1711 and 1732 which had modified the laws of fiefs^ being pan of our civil laws at the time of the conquest, were allowed and preserved in the same manner as the others ; and since then have continued to form a part of our system, as they had previously done, and have been in full force and effect as they were previously. But on behalf of the Seigniors, it was pretended that these Arrets were nothing but penal laws, that they were only rules of police, and as such they had become void with the change of Government, which at the same time that it placed us under the control of the English Criminal Code, had abrogated all the laws of that kind in existence before the period in question. But this pretension is too absurd to merit any serious con- sideration. These Arrets only modify the Custom of Paris, they repress a mere civil abuse, they impose a penalty which is entirely a civil one, not for the punishment of a mis- demeanor, but to enforce an ordinance relating to property, 24 d Avhich is in every respect essentially a civil one, and they cannot for that reason, be numbered among the criminal laws of which we have been deprived by the conquest. Consequently the cession of the country has not, in the slightest degree, had any effect upon the Edicts which are now before us ; it remains for us to ascertain if, since that period, it is really true that there have been no tribunals in the country with competent authority to have them enforced, and if in consequence of that supposition, it must necessari- ly follow that these laws are abrogated and have ceased to exist. As to the first point, it has been pretended that the powers granted to the Governor and the Intendant jointly, by the fijst of the two ^rre^5 of Marly were, at least in part, ad- ministrative and not judicial powers. It appears to me that the terms of the decree are repugnant to such a pretension. In the first place the reunion to the domain must be efiected by the Attorney General whose duty is purely judicial, under the ordinance of the Governor and the Intendant. The word ordinance is equi\Tilent to the wordjudgment, and that cannot be rendered by any but a judicial tribunal. By the second pai't of the decree, those persons who have been refused lands by the Seigniors, are allowed to appeal to the (Governor and the Intendant. The word appeal im- plies that those officers formed a tribunal for that purpose. But this proposition appears much clearer when we look at the King's declaration of the 17 July, 1743, relating to concessions in the colonies, in which it is stated among other things " that the Governor and the Intendant shall con- titiue to take cognizance, to the exclusion of all other Judges,''^ of all contestations which may arise among the settlers ; and they shall also have the right of ordering reunions to the domain. The terms of the fourth article of this declaration can only 26 d be applicable to a Tribunal. In the fifth clause, it is stated " that all reunions shall be null T\-hich shall not be pronounced^ and all judgments void, ivhich shall not be ren- dered by both of them.^^ The seventh clause speaks ot nomination of experts, reports and enquetes in the same manner as such matters are conducted before an ordinary Court of Justice. The eighth clause speaks of appeals from Judgments rendered by those officers. The preamble of this same declaration does not leave the slightest doubt, that the Governor and the Intendant really formed a Judicial Tribunal, which had a right of taking cognizance of those cases within the category of which came those arising out of the Arrets of 1711 and 1732. If that be the case, I do not hesitate to say that the powers possessed by the Governor and the Intendant were transmitted to our Courts by the 34th Geo. IV. cap. 6, and have remained with the different Tribunals which have since succeeded that one, up to the present time. The second clause of this Act is entirely general and gives to the established Courts jurisdiction in all cases both civil and criminal, without any exception whatever. The first part of the eighth clause gives power to the Court of King's Bench " to hear and determine all legal matters and causes " for the rescision of all contracts and deeds, and to rescind " and annul the same, in the same manner as if special " Letters of rescision had been obtained." The reunion to the domain which the Arret of Marly commands the Gov- ernor and the Intendant to pronounce in the cases provided for in the Arret, is really a rescision of the deed of con- cession, and notwithstanding this, that portion of the clause w^hich has just been cited, would authorise the Court of King's Bench to decide upon that rescision. But the argument against the jurisdiction of our Courts, is that in a subsequent portion of this eighth clause, juris- diction is specially granted in those cases where the Inten- 26 d dant alone had a right to act, while there is no mention made of those in which the Governor and the Intendant could act jointly ; that, according to the principle inclusio unius Jit exdusio allerius, we must come to the conclusion that the Court of King's Bench had juridsiction in those cases where the Intendant alone had a right to act, but not in those where he had to be assisted by the Governor, as in the cases provided for by the Ar7'^t of 1711. We have been for a long time aware of the value of the maxim " inclusio unius, c^c," at the present time, no per- son looks upon it as a rule to be followed. Nevertheless there is no case in which it is less applicable than in the present one. Every body is aware that, under the French Government, the Intendant was the person charged with the administration of justice. His Court was not the only tribunal, but it was the most common one, and the one in which the greatest number of cases were decided. At the time of the conquest, the powers of the Seigniorial Courts were carried out to a very limited extent, they were badly organised and were almost forgotten. The Superior Coun- cil, although competent to decide certain important cases which came within its jurisdiction as a judicial tribunal, was looked upon more as a legislative body than as a Court of Justice. With reference to the Tribunal composed of the Governor and the Intendant, it was an exceptional Court, established for a particular object ; it was for the purpose of looking after the settlement of the lands in this country, and for seeing to the punishment of infractions of the law? made to carry out that object. The settlement of the lands and the colonisation of the country were looked upon as matters of such vital importance, that it was thought proper not to leave them in the hands of the ordinary Judge. It was requisite that the ordinary Judge, in the accomplish- ment of that portion of his duty, should be assisted by the principal functionary of the country, the Governor himself, in order doubtless to give greater weight and solemnity to 21 d their decisions. But, as I have before stated, this Tribunal was established for a particular purpose, and did not ex- ist for any other. If these facts be correct, it is not surpris- ing that the authors of the Act 34, Geo. Ill, which has established our Courts of Justice, while defining the juris- diction of the Tribunals which it created, should, among other things, have bestowed upon them the jurisdiction of the tribunal of the Intendant, which was well known, and that we should have forgotten that exceptional tribunal, com- posed of the Intendant and the Governor, who in their capacity of Judges, previous to the conquest, had acted in such a small number of cases that it is quite pro- bable that even the existence of that Tribunal was un- known to the authors of the Judicature Act. This omission was not made intentionally, if it had been known that this Court existed, it would certainly have been included in the Act, more particularly when we consider the impor- tance of the object for which it had been created. Or per- haps it may have been thought that when the Intendant was mentioned, it was at the same time intended to include aJl the cases in which he had jurisdiction, those in which he had a right to sit alone, and those where he was to be .assisted by the Governor. What appears to be very certain is, that this omission could not have been willingly made ; conse- quently we cannot come to any conclusion as to the desue- tude. If that was not a voluntary omission, and if it creates a void in the law and renders it incomplete, it is a part of our duty to supply that omission and to include in the law what has been omitted, if it be possible ; and I have shewn that nothing is more easy to do, according to the second clause, and the first part of the eighth clause of the above mentioned Act. But supposing that I should be in error in that respect, and that in point of fact there should be no means, while interpreting this law, to bring the present case within its limits, still it would not foUlow that such an omission proved that, at the time of the passing of the Act 34, Geo. 28^ III, the Arrets of ITllandof 1732 were looked upon as having fallen into disuse, because it was not thought proper to establish a tribunal to put them into execution. The reasons given above forbid such an idea ; the only fact which remains is, that since the conquest, the law in ques- tion could not have been carried out judicially because there was no tribunal established for the purpose ; this would not have had the effect of abolishing those laws, but would only have rendered them ineffective for a time, the abolition by disuse being founded upon the presumption that the law, thus abrogated, has been abandoned by the mutual consent of the authorities and of those subject to it, and that it has been agreed to look upon it as being no more in existence. It is however false that, since the conquest, there has been no tribunal to put those Arrets into execution : the con- trary is clearly proved. §8. The eighth and last question is whether those laws were laws of public policy [ordre pubHce^) and whether pri- vate individuals were allowed to derogate from them by any private agreements. This question was partly answered when I stated in re- ply to the fifth question that there was no necessity to solve the difficulty raised by the desire of ascertaining if the charges, conditions and reserves stated in the deeds of con- cession contrary to the edicts above mentioned, were null pleno jure or merely voidable ; that it was sufficient to state that they were illegal and contrary to a positive law, and that consequently they could not form sufficient ground for any indemnity in favor of the Seigniors. But I am de- sirous of explaining, and of giving, at greater length, the reasons upon which I found my opinion. It is necessary to examine the enactments of a law in order to ascertain if it is a law of public policy, {cPo/dre 29 d public), or if the parties subject to them, have a right to de- rogate from them. The jfirst ArrSt of Marly contains two separate provisions. 1. The obligation on the part of the Seigniors to cause their lands to be cultivated, and to place settlers on them within one year, under penalty of re- union to the domain ; 2. The obligation to concede their lands for dues alone, a simples redevances, to such persons as should require them ; otherwise, after having demanded the concession and having been refused, they had a right to obtain the concession of the lands from the Governor and the Intend- ant, who were commanded to grant those concessions upon the same conditions as the other lands were conceded in those Seigniories. There is not the slightest doubt that the first provi- sion, which obliged the Seigniors to reside upon the lands and cultivate them, or cause them to be cultivated, was one of public policy, and that no individual could avoid obeying it. The public authorities were bound to see that it was put into execution, in order to promote the settlement of the country, for public interest. As to the second clause, which obliged the Seignior to concede for dues alone, (a simple litre de redevances,) it gave the person who was desirous of obtaining a grant of land, in case of refusal a right to cause it to be granted by sum- moning the Seignior before the Governor and the Intendant ; this right was in favor of private individuals, and also for the general interest of the country. Nevertheless this portion of the law could not be carried into effect unless at the request of private parties ; it was only when they made a complaint, and the Seigniors had refused, that the Governor and the Intendant could make use of the powers conferred upon them by the Arrit ; so long as no complaint was made, the authorities were supposed to ignore the grievance and could not interfere. I infer from this, that that portion of the law was more particularly in favor of private individuals. If these latter, instead of taking advantage of 30 d the right given them to summon before the Governor and the Intendant, the Seigniors who should have refused to grant them by way of concession the land they required, upon the con- ditions pointed out by law, had preferred submitting to condi- tions other than those at which they had a right to obtain the concession, this agreement, so far as they were concerned, was valid and binding upon them ; the public authorities had nothing to do with the matter, for, in that particular case, public interest was satisfied, inasmuch as the concession was granted, and the land was taken for the purpose of being improved as required by law, although it was upon less favorable conditions than the tenant might have obtained. This view of the subject appears reasonable, for without entering into an examination of the question to ascertain if, under those circumstances, the Censitaire^ by appealing to the authority of the law, could be exonerated from the obligations he might have voluntarily contracted, we may say, without any hesitation, that he alone had that right, and that no other person would be justified in making such a request, because he was the only person interested in making it, and that the public were not interested in the least. But that is not the view we must take of the subject. The Sovereign power which enacted the law in question now desires to abolish it in the interest of the public, but it does not wish to make this reformation without a good and sufficient indemnity to the persons entitled to the same. In order to establish the amount of that indemnity, the repre- sentatives of that power to whom the execution of the new law is entrusted, have caused the Seigniors to produce their titles, and have discovered that they contain clauses prohibit- ed by the Arrets of 1711 and 1732, upon which these latter found their claim for indemnity under the pretence that the Censiiaires had voluntarily agreed to them. Is the 31 d Seignior justified in his pretension ? that is the question. For my part I think this question should be decided against the Seigniors. * So long as the violation of the law was kept secret be- tween himself and his Censitaire^ the public authority could not, and had no right to interfere. But from the moment the question is regularly brought before the public, it must reject a claim based upon an infringement of the law, more particularly when, as in the present case, the public treasury furnishes a large portion of the indemnity ; would it not be an absurdity to indemnify the Seigniors for having violated a public and general law which we acknowledge they were bound to submit to. These arguments might be carried much further, but what has already been said is, I think, sufficient to prove that the Seigniors are ill advised in demanding an indemnity for the loss of the value of charges and reservations which they should never have imposed nor stipulated, and for the im- position of which they might have been punished by the law which was in force at the time they were imposed. I am therefore of opinion that without declaring those deeds to be null and void which contain those illegal stipulations, and without declaring those clauses themselves to be void pleno jure^ or only voidable, the Court has a right to state, and it is the duty of the Court to declare, that those con- ditions are illegal, and in direct contradiction to a law which prohibits them, and consequently that no indemnity should be paid to the Seigniors for the loss of the pretended rights which they had thus acquired. In consequence of the above reasons, in answer to the eighth question I state that the Arrets of Marly, and the Arret of 1732, were public laws from which neither the Censitaires nor the Seigniors could derogate to the detriment of the public. ^2d SUMMARY OF THE FIRST DIVISION. Before 1711 the common feudal law of Canada was the !?ame as that in force under the Custom of Paris. Up to that period no general law had modified it so as to make any alteration in the rights of the Seigniors of the country over their ^e/5, from what they were in France. But in the deeds of concession of the Seigniories and in the public documents of that period, we find inserted, either expressly or otherwise, the obligation of settling upon the lands which had been granted them, or having them settled upon and put under cultivation ; but they had a right to fulfil this obligation in the manner they thought proper ; they could retain the lands in their own possession or alienate them upon such conditions as the purchaser thought proper to accept. So long as the Seigniories were established, the Seigniors fulfilled their duty, and in that respect they had the same power as they had in France. But this power was limited in 1711 by the ArrSt of Marly, which, under the form of a law, caused the obligation to establish the lands, or to have them established, inde- pendently of the deeds of concession, and of the condi- tions which had been imposed, to be a general one for all the Seigniors of the country ; another obligation was imposed upon them at the same time, which was to concede the land to those persons who should require them for dues alone; and an express prohibition was made to sell those lands. This Arrit as well as the other one of the same date, on the same subject, relating to the Censitaires^ have been confirmed by another Arrit of 1732 which commanded the preceding ones to be put into effect : the whole three were enforced, they never fell into disuse, and were part and parcel of our laws at the time of the passing of the Seigniorial Act of 1854, 33^ These Arrets, while obliging the Seigniors to concede for dues alone, debarred them from the right of inserting in their concessions any other charges than cens and rentes and other annual dues which come under that denomination ; con- sequently they had no right to impose upon their Censitaires th"e different charges and reservations which are inserted in their titles ; these charges and reservations being illegal, the Seigniors have no claim for an indemnity in consequence of their suppression. With respect to the amount of those dues, no law having yet established that amount, the Seigniors were allowed to impose such dues as the Censitaires agreed to, and whatever might be the amount of those dues, they have a right to be fully indemnified for them. These are public laws, {dPordre public^) and the Censi- taire by derogating from them in favor of the Seignior, could not confer upon him, contrary to public interest, rights which were prohibited by those laws, and for the loss of which the Seignior claims an indemnity, to be paid partly by the Country. SECOND DIVISION. NATURE AND EXTENT OF THE RIGHT OF BANALITY. This second division may be subdivided in the following manner : 1. At the time of the first settlement of the country, what was the character of the banality possessed by the Seigniors, was this banality legal and was it the result of law or cus- tom, or was it merely conventional, and did it result from the titles ? 2. Did this right subsequently change its character, and has it since then become obligatory, independently of any agreements between the parties ; at what period and by what means was this change effected } Sid 3. According to the law of the country such as it existed at the time of the passing of the Seigniorial Act of 1854, what was the extent of the right of banality, what was the quantity and quality of the grain which the Cemitaire was bound to have ground at the banal mill belonging to his Seignior, was it only the wheat which had been grown upon his land, and which was necessary for the use of his family, or was it every kind of grain which the Cemitaire must have ground, whether the same was necessary for the use of his family or not ? 4. Did the right oibanalite consist solely in obliging the Censitaire to carry his grain to be ground at the banal mill, or did it also go so far as to prevent the building of all kinds of flour mills, within the extent of the banalite^ with- out the consent of the Seignior, and to cause the demoli- tion of those w^hich had been built for that purpose ? 5. Was this privilege of preventing the building and causing the demolition of such mills, merely an accessory, a protection which the law granted the Seignior, in order to facilitate the execution of his principal right of obliging his Censitaires to have their grain ground at his banal mill, and as such accessory, should it be set aside with the other privilege pleno jure and without any indemnity ; or was it a separate and distinct right from the other one which did not necessarily disappear with the other, and for the loss of which the Seigniors consequently may exact an in- demnity ? 6. If the Seigniors had a right to prevent the building of any mills as above stated, was it by virtue of the right of hanalite and independently of the ownership which they might have in the waters within their Seigniories ? § I. At the time of the settlement of Canada, the Seigniors possessed the right of banaliie throughout France. In certain provinces this right existed by virtue of the law and of the customs, independently of any private agreement between 35 d the parties ; in other provinces, the right of bmialite was looked upon as a mere servitude, which, like all others, could not be acquired unless by virtue of a title. For the first, the right of banalite was legal and customary ; for the latter, it was merely conventional. The custom of Paris being included in the latter class, it contained for that purpose a particular clause in the 71st article, which declares, in express terms, " that the Seignior cannot oblige his tenant to go to the banal mill or oven, unless his title binds him to do so, or that there be an acknowledge- ment of long standing to that effect. We have already seen that the custom of Paris was introduced into the country as well as the Common law, from the time of its first settle- ment, and the article relating to the banalite having been introduced as well as the others, had the effect of law so long as it was not changed. Therefore at first, the right of banalite was merely conventional, and continued so during a long period of time, when we find that that obligation was imposed upon the Censitaires in almost every, or in all the deeds of concessions up to the year 1686, when an ArrSt was passed which altered the law in that respect. It is true that we find an ArrSt of the 1st July, 1675, relating to the right of banalite ; but that Arret, instead of altering the law in that respect, rather confirms what has been said, that at the period in question the right of banalite was still conventional ; at the same time that it de- clares that windmills shall be considered as banal mills, it states that those persons only shall be held to carry their grain to them to be ground, who may have obliged them- selves to do so by their titles. Therefore in answer to the first question I state that, at first, the right of banalite in this country was neither legal nor customary, but was purely conventional, and only affect- ed those persons who had subjected themselves to it by their titles. 36 d § II. Previous to 1686, the Arrets made relative to the right of banalite^ were only with a view of settling the difficulties which had arisen between the Seigniors and the Censitaires as to the fulfilment of the agreements entered into on that subject between them by virtue of their deeds. The Arr4t of 1686 (4th June,) made an alteration in this order of things ; up to this period the right of banalite was conventional according to the custom of Paris, but the Arret in question rendered it legal and obligatoiy both for the Seignior and the Censitaire^ independently of all condi- tions and stipulations between them. By this J.?Te'^e very seignior was bound to have banal mills built in his Seigniory within one year, in default whereof any individual had a right to build such mills, and he ac- quired, by that means, the right of banalite. The right of banalite granted in the latter case, to the ex- clusion of the Seignior, can be nothing more than the same right which belonged to the Seignior in the case where he should himself have built the said mills, which proves that he did possess the right oi banalite when he had built the mills which were required. It would however be absurd to oblige the Seignior to incur heavy expenses in building mills, without at the same time obliging the inhabitants to conform to the obligations of banalite. Consequently I look upon the edict of 1686 as a modifica- tion of the law such as it had existed up to that time, by obliging the Seigniors to build mills, and the Censitaires to conform to the right of banalite. A number of judgments subsequently rendered in this country, confirm this interpretation of the Arret of 1686 aind lead me to believe that from the time of its promulga- tion, the right of banalite became legalised and was law in 37^ all tlie Seigniories (27th May, 1716, Cugnet 36— 10th July, 1728, CugnetSO— 10th July, 1728, Cugnet 51— 18th Febru- ary, 1731, Cugnet 58— 10th March, 1734, Cugnet 65— 23rd June, 1736,Cugnet 69— nth July, 1747— Cugnet 74. §111. The third question goes to ascertain : 1. If wheat was the only grain which a tenant, subject to banalite^ is bound to have ground at the banal mill ; 2. If all the grain grown within the banalite whether consumed within it or not, are subject to the banalite ; 3. If the grain purchas- ed beyond the limits of the banalite and brought into it for use is subject to banalite ? With reference to the first point, all the writers in France are not of the same opinion ; some of them pretend, with the Notiveau Denizart^xo. banalite, No. 9, vol 3, p. 148, "that " wheat is not the only grain' subject to banalite, but that all " other kinds of grain are subject to it." This opinion ap pears to me to be more in conformity "with reason and with the principles upon which the rights oibanalite are based, if it be true that it arose out of the obligation, either expressed or understood, that the Censitaire should indemnify his Seig- nior, who had constructed a mill, for the expenses incurred by him for such building, and for those which the Seignior must incur to keep the mill in repair. We see no reason in this proposition to make a distinction between wheat pro- perly so called, and other grain such as barley, oats and Indian corn, and other kinds which it is necessary to have ground, and which in fact the Censitaire gets ground for the use of his family, within the extent of the Seigniory. The Sei- gnior having gone to the expense of putting his mill in a fit state to grind that grain, should, according to my mind, have the preference over all other mill owners, in order that he should be indemnified. This extension of the right of banalite, according to certain authors in France, appears to have been adopted in Canada, 38 6^ if we can judge by the different Arrets^ ordinances^ and judgments rendered relative to that subject by the tribunals of the country, in the greatest number of which, no distinc- tion is made between wheat and any other grain, which should all, it appears to me, be taken to the banal mill to be ground, I say the greatest number, because it must be understood that there are some /Irre^^ or judgments in which mention is only made of wheat. It is certain that in those cases in which the Censitaire has bound himself by his title, to have his grain or all his grain ground at the banal mill, it is very difficult to assert that he fulfils his obligations by taking his wheat alone to the mill; and by having the remainder of the grain which he requires for the use of his family, ground elsewhere. Other authors in France limit the right to the obligation on the part of the Censitaire of having his wheat alone ground, (see some of these authorities, 3 Lefebvre 168, 173, 175, 174 ; 1 Grand Cout : 1031 — Rousseau DeLacombe : vo. ba- nalite^ No. 2, p. 67) I do not find any one of them more positive on this subject than the Nouveau Denizart already cited. Sometimes the authors mention wheat, at other times they mention grain. The fact is that in France, it was only wheat which was generally ground. If any other kinds of grain were ground, it was such a rare occurrence, that it was not thought of sufficient importance to be men- tioned while writing on this subject. Upon the whole I am inclined to believe that the right of banalite included not only wheat, but all other kinds of grain. The right of banalite is a personal right ; consequently it is not because grain has been grown within the limits of the 39 d Seigniory, that it should be subject to the right of banalite, but because it was to be made use of within the Seigniory. Consequently the grain grown within the limits of the country subject to the right of banalite by a person who does not reside there, may be ground where he pleases. 8 Pothiev, 176. — " If I possess grain out of the limits of *' the banalite where I reside, I may have it ground else- " where and bring the flour produced therefrom to my own *' house." The tenant who purchases wheat elsewhere than within the limits of the Seigniory, may also cause the said wheat to be ground elsewhere, and carry the flour home without violating any of the rights of banalite ( I Freminville^ Principes des fiefs ^ 143 ; Lacombe^ 67 ; \. H. de Pamey^ 191.) In answer to the third question, I am of opinion that not wheat alone but all kinds of grain, are subject to the right of banalite ; that the Censitaire is only bound to cause the grain which he requires for the use of his family to be ground, and that all the grain grown within the banalite is not subject to that right; that what he sells elsewhere in flour may also be ground elsewhere : that what he purchases elsewhere rriay also be ground elsev/here, although the flour may be consumed within the Seigniory ; that the grain purchased elsewhere and brought into the Seig- niory must be ground within its limits. IV. This question should be answered in the affirmative, and I do not hesitate to- say that from all the authorities which can be consulted on the subject, the right of banalite in France included that of preventing the building of any other mills within the limits of the banalite. This result of the right of banalite did exist and was acknowledged without any difficulty, both in the provinces where the right was legal and customary, and in those where it was only conventional. With reference to this 40 d . matter, it is well to remark here, that although the origin of those two kinds of Z>a^^a/^Ye was different, still the effect of both was the same, whether it was legal or only conven- tional ; miless some particular derogation had been stipulat- ed in the title which established it. [Lacombe^ banalite^ 68 ; Duplesst's, fiefs, 66 ; 2 Rept. banalite, 1 12 ; l.H.de Pansey, 89 ; 3 Despeisses, No. 5, p. 296 ; 8 Pothier, 174 ; Carondas sur Paris, Art 1.) Our law, in that respect, is the same as it is in France ; all the authorities cited there are applicable here. The consequence is that in this country as well as there, the Seignior has a right to prevent the building of all mills within his Seigniory, and to cause the demolition of those which may be built without his consent. § V. This fifth question is of great importance ; it causes the necessity of examining the pretension which is generally set up against the Seigniors, by saying : " Admitting that " the right of banalite includes the right of preventing the " erection or causing the demolition of mills erected within " the^e/s without the consent of the Seignior; this right is " only an accessory of the principal right, and only pro- tects the banalite ; and as this banalite has been abolished, any accessory to it falls with it ; being nothing by itself, the suppression of it cannot be a reason for paying an indemnity. In order to add more weight to this proposition, this privi- lege of the Seignior has been compared to the ri^hXoiretrait which as an accessory of the right of lods et ventes, and as being granted to the Seignior in order to protect him from fraud, must have become extinct at the time the lods ei rentes were done away with, and was abolished without any indemnity. This proposition appears to me to be unjust and false in itself and the reasons upon which it is b ased appear erroneous. 41 d As to the comparison made with the right oiretrait^ I must say that the Legislature itself has seen a difference between those two rights, since it has thought proper expressly to sup- press the retrait^ without any indemnity, whereas nothing at all has been said with reference to the right of banalite. I must add that I have some doubt as to the justice of that decision of the Legislature, and as to the question whether that decision is quite in accordance with the de- clarations contained in the Seigniorial Law, that no indivi- dual can be deprived of his rights without being indemnified. The right of retrait which really owes its origin to the cause already mentioned, was, notwithstanding that, a lucrative right, which the Seignior could make use of for his own benefit, or could make over for a certain con- sideration to a third party, who could then exercise it in his name. It was an odious right, it had been abused of; and it became necessary to abolish it ; but as it was acknowledged by and founded upon law, was it just to do away with it without paying an indemnity ? For my part I doubt it. It is with all due deference that I make these reflections, and merely to come to the conclusion that with reference to the privilege now under consideration (that of allowing or prohibiting thebuilding of mills,) that privilege has in no wise been suppressed. The law has abolished the right of batialite^ and the privilege in question, being attached to it, arising out of it and forming part of it, cannot exist without it ; but if this consequence, this portion of the right of banalite^ was of itself a lucrative right by which the Seignior could benefit, could it be set aside without paying any indemnity ; that is the question now before us. All the authors agree in stating that the Seignior being vested with the right of preventing the building of mills within his Seigniory, it follows as a natural consequence 42 d of the banalile that the person who possesses the right of banalite, possesses also by law the right of causing the de- molition. I am inclined to believe that the reason which gave rise to this privilege, was to prevent frauds, and to assist the Seignior in enforcing his principal privilege, which was to oblige the Censitaire to come to his mill. But let the origin of that right be what it may, it nevertheless existed as a distinct portion of the banalile ; it was in itself a lucrative privilege. The Seignior could sell his rights, and acquire, by such sale, profit which no person has a right to call him to account for, inasmuch as he sold only what was his own, and what no person could oblige him to dispose of. If you do away with the banalile^ you de- prive him of that source of revenue ; and I think that can- not be done away with without some indemnity. Whether this indemnity be granted to him as a part of the principal right, or only as forming a distinct branch of it, it is a matter of indifference, but in the amount to be paid him in conse- quence of the suppression of the banalile^ the right of which we have spoken should be taken into consideration. § VI. Theprivilege possessed by the Seignior of prevent- ing the building of mills within his Seigniory, belonged to him by virtue of his right of banalile and independently of the proprietorship which he might have over the Avaters of his Seigniory, since the erection of wind or steam mills, would have been a violation of his privilege, just as well as mills driven by w^ater power. THIRD DIVISION. Proprietorship of rivers and running waters, both navigable and unnavigable. Of all the subjects submitted for the consideration of the Court, there are perhaps none of greater importance than the one which forms the subject matter of this division, and without doubt it is the one which presents the greatest diffi- culty, uncertainty and difference of opinion, and it may for 43 d the present purpose be subdivided into two principal ques- tions. The first one is what were the rights of the Seigniors over navigable rivers and streams, at the time of the aboli- tion of the seigniorial tenure in this province. The second one is to whom the non-navigable rivers and streams belonged, at the same period. I. The entire doctrine relative to the ownership of naviga- ble rivers will be found summed up in the following passage of Boutaric, in his Institutes, at page 125, where he says : " Most decidedly the navigable rivers belong to the King ; " they form a portion of the Domain of the Crown, with the " exception of the rights of fishing, of building mills, " placing ferries, and other rights which private indivi- " duals may legally possess by virtue of their titles." According to this doctrine, which is really the trae one and which cannot be contested, the Seigniors have no rights over such rivers ; in the same manner as all other individu- als, they can exercise such rights as may have been granted to them by the Sovereign, by virtue of special titles, and which are not contrary to the custom of navigation and trade, and to the general interest of the State. We must look into those titles and into the possession which corro- borates such titles, in order to be able to judge of the extent and nature of those rights w^hich, being a deroga- tion to the common law, must be kept within the terms of the charters by which they were established. If those rights, by their constitution, partook of the Seigni- orial or feudal tenure, and that the law of 1854 had the ef- fect of abrogating or setting them aside, such suppression might give room to the payment of an indemnity. If on the contrary, the grant made of those rights, contains nothing of 44 d a Seigniorial or feudal nature, in such a case, the law of 1854 does not affect them in the least, they do not come under the class of those upon which this Court is called upon to decide, and consequently it is useless to mention them here. II. The second question relating to non-navigable rivers, reduced to its most simple meaning, and put in a practical manner, is made in order to ascertain : Whether the Seigniors or the Censitaires of the country were the proprietors of the non-navigable and non-floatable rivers and streams at the time of the passing of the Seig- niorial Act of 1854. In order the more easily to arrive at a solution of this question, I shall, in the first place, state some propositions which appear to me to be incontestable and which I shall consider as being admitted, that is to say, that these rivers form a portion of the private domain and may belong to pri- vate individuals ; and that for such reason they are subject to the control of the civil laws of the country ; that, in Canada we have no particular- law relative to this matter, and there- fore that this question must be decided according to the French laws in force in this country in 1854 ; that even in France there never was any special law to settle this diffi- culty before 1789, at which time the abolition of the feudal and Seigniorial rights and of everything arising out of them was decided upon : that in order to come to a solution of the question before us, it is necessary to have recourse to the laws and jurisprudence in force in France before the period of 1789, and to the decisions of the french courts and of our provincial courts. This w^as a question relative to which much difference of opinion existed in France ; nevertheless the conflict was not between the Seigniors and the Censitaires ; on the con- trar}-, almost all the authors who have written on the sub- ject, and almost all the Arrets attest that, in fact, 45 d the ownership of the rivers and non-navigable running waters did not belong to the Censitaires or riparian proprie- tors, but generally to the feudal Seigniors or to ihe jusiiciers : I sav generally because some authors, the first of whom is Pothier, say that " The rivers belong to those persons who have a right to them by virtue of their titles or by possession, and who can call themselves the proprietors of them within the limits mentioned in their titles or of which they have possession. This doctrine being perfectly correct so long as it is pro- perly understood, does not in the least contradict the one which is generally admitted, that this o"v\Tiership is vested, by the common law, in the feudal Seigniors or justi- ciers. This passage of Pothier states nothing more, in substance, than that those rivers, forming part of the Do- maine prive, may belong to the persons who should have obtained titles from the proprietors, and that those indivi- duals acquire all the rights over them, that is to say those risrhts only which mav be mentioned in their titles. Conse- quently unless there be a title or a possession during a long period which leads to the presumption of the existence of such title, no individual possesses any right over those rivers which, as Pothier says in the same place, " belong " to those Seigniors justiciers within whose ^rritory they " are, when they do not belong to the individual proprietors." In other words it means that the Seigniors Justiciers are the proprietors of the non-navigable rivers which they have not themselves disposed of, or Avhich may not have been grant- ed to other parties by the Sovereign, to whom they all ori- ginally belonared, and who had every right to dispose of them to whom and upon such terms as he thought proper, inas- much as he possessed the same right with respect to the navigable rivers. What has been said above was in order to show that in France the general opinion and acknowledged jurispru- 46 d prudence were that the non-navigable rivers did not belong pleno jure to the Censitaires who lived along the banks of those rivers, but that by virtue of the common law {droit commun) they were the property of the Seigniors, either as possessors of the ^e/, or as exercising jurisdiction, [droit de justice.) I shall not at present cite, in support of this statement, the opinions of the authors, or the Arrets upon which it is based ; the counsel of the parties cited them, and they will be found in the statements which have been laid before the Court ; I shall merely refer to them as I feel satisfied that any one who shall look into them, must finally come to the conclusion that at the time of the abolition of the feudal right in France, in 1789, the rivers in question were all really in the possession of the Seigniors, and that the pro- prietors of the land through which they ran laid no claim to them. The only point upon which there was a difference of opinion was the one which has been already mentioned, that is to say, whether it was a right coming from the fief or from the right of jurisdiction, which we may ascertain by referring to the following authorities : " Under the feudal system, (says Henrion de Pansey, " Competence des Juges de paix, page 233,) the small rivers " belonged to the Seigniors, they were the proprietors of " them and had control over them, consequently no person " had a right to dispose of the waters belonging to the Seig- niors, unless such person had a concession from them." (( " The best possible reason for stating that the bed of the " non-navigable rivers was not transferred to the riparian " proprietors by any enactment of our law, arises out of " the numerous efforts which have been made to introduce " into our code of laws, such an enactment which it is " impossible to find in it." (3 Foucard^ Droit public et ad- ministratis page 422.) 41 d " Another rule was followed in France ; these rivers " (that is the non-navigable rivers) belonged in almost every " locality to the Seignior justicier as an indemnification for " the duties imposed upon him in the administration of " justice." (Troplong, prescription, No. 145.) The above authorities and a number of others which could be cited, prove this fact, that so long as the feudal system existed in France, the riparian proprietors, did not for that reason have the ownership of the non-navigable rivers. , If such be the case, and if it be true, which cannot be doubted, that with respect to the non-navigable rivers, our position in the year 1854, is the same as it was in France in the year 1789, it would be useless to examine further in- to the subject, since we might, apparently, say that in this country the /^e/" and the jurisdiction are almost in every case united in the one person, consequently it becomes a matter of slight importance by virtue of which of those two titles the rivers in question belong to the Seignior ; so far as the latter is concerned, the result is the same. With reference to the Censilaire^ he either has a title or he has none ; if he has a title together with the possession his right will be acknowledged, and he obtains what he demands ; if he has no title, his -demand is dismissed, and in such a case, he can have no interest in ascertaining who will possess what he knows does not belong to himself. It would consequently appear that we might at once set the Censitaire aside, declare his claim to those waters unfound- ed, and adjudge them to the seignior, without in the least trying to ascertain if they are to belong to him as a fief or by virtue of jurisdiction. Such however is not the case, for according to the view taken of the subject by several persons, the question of ascertaining whether the rivers belonged to the Seigniors or lo the Censitaires in 1854, depends entirely upon the answer 4Sd given to this other one " was the ownership which the " Seigniors had or might have had in those rivers, a right " acquired as owners of the fief^ or was it a right acquired " by jurisdiction." According to those who hold this opinion, it would be necessaiy, in order that the Cetisitaires should gain their point, to decide in favor of the feudality, and to declare that it is not a right acquired by jurisdiction. Those persons who support the inteiest of the Censitaires in this respect, maintain that these latter have a right to those rivers, because the right was transmitted to them through the feudal Seigniors to whom it belonged, while it is stated in opposition to this pretension that as the feudal Seigniors never possessed that right themselves, they could not transmit it to the Censitaires. Let us now briefly explain these two theories, and then examine into the reasons why one should be preferred to the other. Those persons who look upon the right in question as a dependent part of the fief, say that the Sovereign, as absolute master of everything that he had not alienated, previous to the concession which he makes of the fief watered by a non-navigable river, was the proprietor of such river as well as of the lands in the fief; that he could have reserved them for himself if he had thought proper; but as those rivers might fall into the private domain, there was nothing to prevent him from alienating them ; moreover he was ex- pected to have disposed of them with the land through which they ran, unless there was an express stipulation to the contrary ; and consequently whenever the rivers and streams were not expressly excepted in the deed of concession of a Jief they passed into the possession of the grantee, as a portion of the fief. In this theory no distinction is made between those rivers which merely flow along the border of the fief and 49 d those which run through it ; although those rivers which flow along the border of the fief, are pointed out as the boundary of the concession, still they form a portion of it as well as the others. Consequently, according to this doctrine, the pro- prietor of a fief possesses, as proprietor, every right of property over the non-navigable rivers and streams, which it is possible for him to have, unless there be an express stipulation to the contrary. Taking this principle for a basis and drawing the conclu- sions from it, those parties who have adopted it add : " since the Seignior of the ^e/ has become the proprietor of the non-navigable streams which run through it or along its border, as being a portion of it, merely because no reser- vation or exception was made of them, it must follow that when that same Seignior disposes of a portion of his fief either by subinfeudation or by accensement^ without at the same time reserving or excepting those streams, he makes them over to the new proprietor in the same manner as they were made over to himselfpersonally by virtue of his title, as a portion of the property alienated. The same rule which was applicable to himself with respect to his dominant Seignior, may be invoked against him by his grantee, who shall ac- quii-e the waters in the same manner and for the same reason that he had acquired them, under like circumstances, from his dominant Seignior." They come to the conclusion from this, that at the time of the passing of the Seigniorial Act of 1854, the Seigniors of fiefs^ in this country, were only proprietors of the non-navi- gable waters which ran through or alongside of the lands which they had not disposed of, and which had remained in their possession either as a part of the domain, or be- cause they had not been conceded ; but that tliey had lost all right of property in those waters, upon all the lands which they had disposed of by subinfeudation or by accensement. According to this system we perceive that it was through 50^ the Seigniors that the waters in question came to the riparian proprietors and that it was necessary that they should first have belonged to the Seigniors in order to come into the pos- session of the tenants. s Let us now look at the doctrine of those who say that the right of property in the waters is derived from the right of jurisdiction, and who give it to the justider to the prejudice of the Seignior of the fief. These latter, starting from the principle that the fief and the right of jurisdiction have nothing in common between them, separate the fief and the right of jurisdiction into two distinct and different rights, existing independently of each other, which may belong to two different parties, may be disposed of separately, and which confer upon' the per- sons to whom they may belong advantages which may be of quite a different nature and impose obligations quite dis- similar. The Sovereign who, in the origin, is the possessor of both those rights, may grant one of them and retain the other ; if he grants the Jief without including the right of jurisdiction in the grant, the latter remains with him ; in such a case the grantee becomes a feudal Seignior, but he is not a justicier. If both are included in the grant, and there is nothing to prevent it, the grantee then unites both qua- lities in his own person, he is both feudal Seignior and Sei- gnior justicier. The two however do not become one and the same, they remain separate, there are certain rights which he can exercise only in the one capacity, and of which he becomes deprived the moment he loses it. Finally there are in this case, in the eyes of the law two separate and dis- tinct beings, so much so that the Seignior may, by the alien- ation of the fief lose his feudal rights and renvain justicier, and this same rule would apply equally well the other way. According to this doctrine, the feudal Seignior becomes, as such, the proprietor of the soil, of the land composing his 51 d fief, but he has no right to the ownership of the running waters which may be in the ^'e/, whether they are naviga- ble or not. They both require to be looked after with par- ticular care, in the public interest, and to be governed by rules and regulations emanating from public authority, of which the Sovereign is the fountain head, and for that pur- pose they should remain under his control and not leave it unless upon the express condition and with the firm assu- rance that those important duties, with v/hich he was charg- ed, will be properly fulfilled. With respect to those navi- gable rivers intended for the use of the country in general, and which are the means of communication between the different provinces and even between different States, they have remained under the immediate control of the King, who has retained the right of exercising in person jurisdiction over them, and of making the necessary regulations for that purpose ; and in order that he might meet with no diffi- culties in the accomplishment of that duty, it has been his will to reserve for himself the exclusive ownership of those rivers, and he has retained the exclusive privilege of per- sonally granting such rights which he should think proper and compatible with the public interest. It is particularly for the reasons just given that the navi- gable rivers belong to the King and form a portion of his domain ; and that is why he receives the dues and emolu- ments arising from them, in order to be able to defray the costs and expenses of maintaining order upon them. With respect to the non-navigable rivers, the utility and importance of which are much less, when compared with the others, and the use of which is much more limited, it has been thought that the care of maintaining order and pro- per regulations on them was not of such great importance, but that the King might free himself from that duty by de- legating other persons to fulfil it. That is exactly what was done, when the Seigniorial jurisdiction extended over those rivers, and the Seignior justicier was empowered to exer- cise the same authority over the non-navigable rivers, per- 52 d sonally and in his own name, as the King exercised ; it being universally admitted that the grant of superior juris- diction (Jiaute justice) conferred upon the person, to whom it was made, jurisdiction over all the non-navigable rivers and running streams within his territory, and obliged him to maintain order thereon at his own cost and expense, and to administer the law independently of and without reference to the Royal Tribunals, which only had jurisdiction over the navigable rivers, but not over such as were not navigable. From this doctrine we come to the conclusion, that the ownership and control of the non-navigable streams, was by common law, one of the dependencies of the superior jurisdiction, (Jiaute justice) and belonged to the Seigniors hautsjusticiers to the exclusion of the feudal Seignior, who had no right whatever over those rivers, any more than other individuals, his fief being limited to the soil and not extending to the waters. Any grant which he might give of a portion of his land, could not empower the Censitaire to exercise rights over those waters which he, as grantor, did not possess, himself : consequently neither the feudal Seig- nior nor the Censitaire did or could hold any rights over the waters which, in every case, belonged, by common law, to the Seigniors having superior jurisdiction, when such superior jurisdiction had been conferred by the Sover- eign ; and which rights remained the property of the King in all cases where he had retained that jurisdiction. It is difficult to make a choice between those two sys-- tems, which are so diiferent in their results ; they are and may both be supported by good and plausible reasons ; they are both advocated by authors whose talents it is im- possible to call into question : nevertheless a choice has to be made, and after serious consideration I have adopted that theory which maintains, that the ownership to the waters in question is derived from the right of jurisdic- tion. I have nothing more to do at present, than to give the reasons which induce me to decide in this manner. 53^ In the first place, I must state that I am very much mis- taken, if the greatest number and the best of the French authorities upon this subject, (I mean those authors who have Avritten, and the Arrets which were passed previous to 1789,) are not in favor of the doctrine which I support. To the long list given by Mr. Championniere, the greatest adversary of the Seigniors, and the most zealous and able advocate of the riparian proprietors, we may add the names of several authors w^ho are quite as respectable and quite as celebrated as those named by him. He has omitted men- tioning them, and the omission will appear the more surpris- ing, Avhen their names are given, I shall give the names only of some of those Juris-eonsults whom Mr. Championniere has not deigned to mention, commencing with Boutaric, in his Traite des Fiefs^ where he says : " At common law and in the customs that are " silent on the subject, most certainly the Seignior justider " alone has the right of allowing a mill to be built upon his " river," and he adds further on : " It is necessary to hold *' a title for all the other banalites^ but for the banalite of the " river, it is quite sufficient to be the Seignior with superior " jurisdiction over the land through which it passes." This author advances the same doctrine in his Institutes. (Serres, Institutions de droit ; Lefevbre de Laplanche^ Traite du Do- maine ; Despeisses ; Renaiildon^ Diet, des Fiefs ; Rousseau de Lacombe, vo. fleuve ; Jacquet^ Traite des Justices ; Pocquet^ Regies du Droit Fra7i^ois ; Pocquet^ Traite des Fiefs; Ancien Rept.vo. Riviere et vo. Peche.) I shall now stop, although it would be easy for me to add to this list the names of a num- ber of authors who have been forgotten by Mr, Cham- pionniere, The opinions advanced in relation to this subject by all those writers are confirmed by, or are founded upon a num- ber of Arrets rendered in the different Provinces of France, both in those governed by the civil law, and in those which were governed by Customs. Almost all those Arrets acknow- 54 d [edge the Seigniors IwAits-jusiiciers to be the proprietors of the non-navigable rivers, ^\dth the exclusive right of fishing in them or allowing others to fish in them, of building mills or factories, and allowing or preventing the building of them. One of these 4rre/5 may be seen, among a great number of others, in the II vol, of 3Iarechal, Droits honorifiques : page 99. It cannot be denied, and I am far from doing so myself, that there are Arrets also, Vv'here the Seigniors oi fiefs appear in that capacity, as the proprietors of the rivers. Without positively stating it, and without having any positive infor- mation authorising me to make the assertion, I must say however that in those cases, it might have happened that the Seigniors of the Fief were sdso justiciers (and this happened frequently) and inasmuch as it did not matter in which capa- city they acted, they might have taken the title of feudal Seig- nior, instead of that oijusticier. But I can state that I have not found one Arret^ "svhere a decision has been come to between the feudal Seignior and the Seignior justicier^ in any case where the question has arisen directly between them. But let us admit, which is doing a great deal, that the authorities and the Arrits are both equal in standing and respectability on both sides of the question, it appears to me that that equality should have no weight in the face of the solemn declarations contained in the Arret of the King of France, of the 22d November. 1695, which applies to the entire Kingdom. This Arr4t acknowledged and made known, in the fullest manner, that all the non-navigable waters belonged to the Seigniors within whose superior jurisdiction they were, just as those same waters belonged to the King, when they were within the limits of those superior jurisdictions of which he himself had remained in possession as proprietor. This Arret appears to me to be very important and very decisive. 55 d The importance of it consists more particularly in this, that, by this general law, which afler all was merely de- claratory, the King proclaims, as existing' laiv, that the ownership of the non-navigable rivers is one of the depend- encies of the Superior jurisdiction. The King thereby claims for himself the ownership of the waters within the limits of the superior jurisdictions which belong to him, and recognizes to the Seigniors the same undoubted rights within their own jurisdictions. Under these circumstances, this Arrit would be sufficient to maintain me in my opinion in favor of the Seigniors hauls justiciers. But I have a still stronger reason for adopting this opinion and holding to it, which is the difficulty of reconciling the contrary doctrine with the historical facts, upon this subject, with which \ve are acquainted. We have already seen, that it is a fact beyond dispute, that, at the time of the abolition of the feudal rights and cf the Seigniorial jurisdiction in France, in the year 1789, all or nearly all the ncn-navigable w^aters were in the posses- sion either of the feudal Seigniors or of the justiciers^ and that such was the case long before that period. This fact is proved by all the modern authors who have treated this sub- ject, and in addition to those already mentioned, more particularly, by Mr. Rives, in his " Traite de la propriete des Rivieres non-navigables et non-jiottahles^'' where he states at the 48 page : " From all that precedes, the consequence is " that at the time the Assemblee Constituante opened, the " feudal Seigniors or hauls justiciers^ in virtue of our public " law, had the entire ownership of all the streams of water " which were neither navigable nor floatable. The Court of " Cassaiioti maintained it, against the conclusioiis taken " by Mr. Merlin, on the 20th ventdse, an X, and main- " tained it again by its Arr^t of the 19th July, 1830." If that be the case, how can we possibly reconcile the 56 6^ possession of the waters in question by the Seigniors, with the system which attributes the ownership, by means of in- feudation to the Seignior, and by the accensement to the Censitaire. How can we, according to that theory, explain by what means the Seigniors liauts justiciers had acquired that pos- session ? was it by means of grant from the Crown ? We do not find mention made any w^here of such grant. Was it by deed of purchase or by other contract between pri- vate individuals ? Nothing proves that to be the case, nor leads us to presume it. Was it by pretcription ? That is very improbable, or rather it is impossibe. We cannot consequently assign any reason which will explain the origin of the possession which the Seigniors justiciers in France had of the lucrative rights over most of the non-navigable rivers, unless we attribute it to the right of jurisdiction itself, as being a portion of it, and arising out of it naturally and legally ; if we reject this theory to explain the fact of such a possession, which is so well established, we must have recourse to suppo- sitions which have nothing to support them. With respect to the feudal Seigniors, how does it happen that, in a number of cases, they should be found in posses- sion of those waters, if it be true that the proprietorship of them is transferred either by infeudation or by accensement to the grantee of the soil through which they run ? If the Seignior acquired it from the Sovereign by infeudation, he can only have retained it so long as he retained the lands ; from the moment he granted the land, that ownership, as a matter of course, was transferred to the Censitaire^ as a portion of the concession, and the consequence in such a case would be that the Censitaires and not the Seigniors, would have been generally found in possession of the non- navigable rivers running through the conceded lands. 61 d Such would be the inevitable consequence, unless we sup- pose, and this is neither pretended nor proved, nor is it pro- bable, that in every case the Seignior made a reservation of those waters in his own favor in the deeds of concession ; or unless we suppose again, which is hardly more probable, that after transferring those rivers, the Seigniors should have acquired them anew from the Censifaires, either by agreement or by prescription. Such suppositions as these are entirely gratuitous, and it would be unreasonable to make them the basis of a theory upon such an important subject as the one now before us. Consequently from the fact of the possession by the Sei- gniors of the non-navigable waters, I have come to the con- clusion that their ownership was not a privilege appertain- ing to the Fief ; for, it was not so, it would be necessary to suppose, which some persons have already done, that the proprietorship of those waters is transferred, as a matter of course, and without any express mention of the same being made, to the feudal Seignior, by means of the infeudation, but that that same ownership is not transferred to the Cen- sitaire by the accensement. That is a doctrine which could not be received counsel for the Censitaires^ whose system is, by that means, shaken to its very foundation. In this theory I find the same difficulty in explaining the fact of the possession by the Seigniors justiciers^ in those localities where they had such possession. If the non-navi- gable waters be an appendage of the jurisdiction, there can be no difficulty ; the Seigniors justiciers are in possession of them, because they have retained a right which always belonged to them ; so long as they had the right of jurisdic- tion, they had or they should have had the proprietorship and the possession of the non-navigable waters. But if they did not acquire that right as a portion of their jurisdiction, by what means could they have acquired it over such a 58^ large extent of territory, as that which they had possession of, at the time of the abolition of all those rights in 1789. In answer to that question it is pretended that the origin of that right in the hands of those Seigniors, is due to fraud and usurpation, which consisted in changing, by unjust means, the right of jurisdiction which they had over the rivers, and which no person contests, into a right of pro- perty which never legally belonged to them. This explanation does not appear satisfactory and is not founded upon any solid basis; fraud and usurpation may easily be employed in certain cases to the disadvantage of a few isolated individuals ; but they become quite imprac- ticable, when used openly and publicly against important interests and facts, which may sensibly affect the most numerous class of the community. However this proposition has been so frequently and so cleverly set aside by the best authors, that I shall not say anything more about it ; I will merely state again that the theory, which makes the ownership of the non-navigable waters one of the dependencies of the Fiefs^ presents diffi- culties which I find answered nowhere to my satisfaction. If on the contrary, we adopt the opposite theory, which makes that right a consequence, a dependency of the Su- perior Jurisdiction, those difficulties disappear, or they are explained. In France, in 1789, the Censitaires were not in posses- sion of the non-navigable rivers ; nothing could be more simple and natural than that, inasmuch as they never had any right to them ; the feudal Seignior from whom alone this right could have been acquired, could not grant it, inasmuch as he did not hold it himself ; the concession must liave been bounded by the river at which it abutted, without including that river, which belonged to another who 59 d >vas the Seignior haut justider from whom the Censitaires were bound to obtain a title to the river, in order to be able to prefer a claim to it as proprietors. According to this system, it was to be expected that the Seigniors hauts-jvsticiers would have been found in possession of the largest number of those rivers ; and such was really the case ; this was the natural consequence of the fact, that the grant of jurisdiction, while it obliged the Seigniors to maintain proper regulations upon the rivers of which we are now speak- ing, at the same time it gave them the ownership of those rivers, and granted them all the rights and privileges arising out of that ownership, as an indemnity for the trouble and expenses they incurred. With respect to such of those rivers which belonged, at the time of the abolition of the feudal system in France, to the Seigniors of Fiefs and were found in their possession, the matter may be explained, either by what has been already stated, that in those cases the rights of the i^/e/" and Jurisdiction, being united in the same person, it was useless to enquire upon which of those two titles the possession was founded ; or because that owner- ship had been acquired by the feudal Seigniors by prescrip- tion or otherwise, from the parties who were the proprietors of it by virtue of special deeds of concession from the Crown ; or because having originally recsived the grant of the Fief together with the right of jurisdiction, they might have parted with their right of jurisdiction, and reserved their rights over the rivers with the Fief which they retained. But we may be told : " Supposing your proposition to be correct for France, it cannot be correct for Canada. 1. Because, in this Country, the Superior Jurisdiction never was carried into effect by the Canadian Seigniors to whom it had been granted, so as to give them a right to the advantages and privileges arising from it. 2. Because admitting that, at a certain period, the Seig- niors had a right to avail themselves of the advantages and 60 d privileges of the Superior Jurisdiction, they lost those ad- vantages afterwards, when the Seigniorial Courts were re- placed by other Tribunals, and when the Seigniors JKsticiers ceased to continue in the exercise of their jurisdiction. To the first of these objections, I will answer that there is no proof, and there is no authority, for stating that the Seig- niors justiciers ever refused or neglected to administer that justice which they were bound to administer ; it is not at all established that they did not do so as much as was necessary and in such a manner as was con- formable to the circumstances under which the country was placed; th-at, in the absence of such proof, the pre- sumption is that they did fulfil their duty ; moreover that this Court has no jurisdiction authorising it to decide upon such a question ; and if it had such jurisdiction, it would be necessary, in order to come to a decision, to have heard the interested parties, to have given them the means of shewing whether they had fulfilled their obligations fully and in a legal manner, or that the parties who Avere thus bound, had been exonerated from so doing by the proper authorities, whose duty it was to see to their proper fulfillment. With reference to this subject, we may here mention, that it is a matter of notoriety which is recorded in history, that before the Cession of the country, the French Goverment, instead of insisting upon the fulfihnent, to their full extent, of the obli- gations of the /?<5^/cz6T5, with respect to the administration of Justice, on the contrary did all in its power to depreciate the Seigniorial Courts and render them unpopular, and to bring the suitors before the Royal Courts, which were established in different parts of the country. At the present time and under the present circumstances, it would be most unjust to declare that certain persons, who have not been and who could not be heard, have forfeited rights of the greatest importance and value, upon a supposi- tion, which is perhaps unfounded, that^ about a century or 61 d more ago, certain persons, who consequently would not suffer by the decision, had failed to fulfil obligations and duties, which had been imposed upon them and confided to them. It is a well known fact, at the present day, which no per- son contests, that the superior jurisdiction was veiy rarely ad- ministered in this country by the Seigniorial judges, and that the other jurisdictions which had been granted to the Seig- niors, that is mean and inferior jurisdiction, were only ad- ministered in a very imperfect manner. But that negligence, if it can be called so, did not entail forfeiture or abrogation of the jurisdiction, {pleno jure) nor of the advantages and prerogatives attached to it. It would most certainly have been necessary for the authorities of that period to have adopted proceedings, and have had the confiscation or abrogation of those rights declared in a legal manner. Nothing of the kind took place. It is true that we da find examples, where abuses and negligence in the adminis- tration of justice have been repressed and punished, but in no place do we find any decision declaring that the Seig- niors were deprived of the rights of jurisdiction, for having failed in the performance of their duties or for any other cause. From this, we are bound to conclude that the Seig- niors performed the duties they were obliged to perform, or that they were exonerated from performing them by the authorities having a right to take cognizance of the matter. To the second of these objections we answer, in the first place, that the rights of jurisdiction granted to the Canadian Seigniors were never suppressed, revoked or abolished in a positive manner or by any positive law. The Seigniorial Courts w^ere only replaced by other tribunals which were found to be more convenient and more in conformity with the position of the country ; by that means, the Seig- 62 d nioi'S were indirectly deprived of the exercise of their juris- diction, and they were exonerated from and even prevented from fulfilling their obligations in that respect ; if the fulfilment of that duty had been beneficial and profitable to them, they might have demanded and obtained an indemnification for the loss they would have suffered involuntarily ; but they did not demand that indemnity, and the question now be- fore us is not to ascertain, if they would have had a right, but the question raised by the objection, which I am answering, is to ascertain if the lucrative advantages, at- tached to the right of jurisdiction at the time the same was granted, but which do not form an inseparable portion of it, such as the right to the rivers and some others of the same kind, which although arising out of the right of jurisdiction, do not indispensably exist through the exercise of it, may, with a shadow of justice and reason be abolished, suppressed and lost, so far as the Seigniors are concerned, by the mere fact that the authorities had thought proper, without the consent and participation, and probably against will of those same Seigniors, to put them under the im- possibility of fulfilling a duly, which had so many advan- tages attached to it. The emoluments arising out of the administration of justice, if there were any, disappeared as a matter of necessity and were done away with by the sup- pression of the right of jurisdiction, but the other preroga- tives which owed their existence to it, and which could exist without it, could not be set aside at the same time. That doctrine, so reasonable and so just in itself, is the one we find mentioned in Renaiddon., Diet : des Fiefs^ vo. rivieres^ page 21o, where he says : " But the Seignior, " who loses his right of jurisdiction, does not, for that reason, " lose the other rights which may appertain to it, such as " epavcs, islands, islets, alluvions, &c." If we were to act contrary to such a just rule, we would be doing worse than the Assemblee Constituante did in France, 63 d in August, 1789, when it abolished, in one instant and with- out any indemnification, all the Feudal and Seigniorial rights ; there was in that case, at all events, an ordinance emanating from the Legislative power then in existence ; in the present case, that formality even is wanting, since it would be attempted to effectuate a spoliation by mere im- plication, without having received any order whatever from any competent authority. I think, therefore, that I have good reason for stating that if the grant of jurisdiction had the effect of investing the Seigniors of the country with the ownership of the non-navi- gable rivers and waters within the limits of theii' jurisdic- tion, those Seigniors could not, since then, have lost that right any more than the other lucrative privileges arising out of the jurisdiction, by the mere suppression of the Seigniorial Courts, and that notwithstanding that suppression, their rights have remained the same. Those are the principal reasons which have induced me to adopt the theory, which I have just now explained in such an imperfect manner ; it is susceptible of being develop- ed at much gi-eater length, which I have been unable to do for want of time ; but what I have said appears to me to be sufficient to establish : — 1. That the navigable rivers belong to the State, but that private individuals, such as Seigniors and others, may ex- ercise such rights over them as may have been granted them by public authority, so long as they are not incompatible with the general interest. 2. That with respect to the non-navigable rivers and running streams, they were, in this country in the year 1854, as they were in France, in 1789, an appendage of Superior Jurisdiction, and were the property of the Seigniors to whom that Jurisdiction had been granted. 3. That in the few cases where the Superior Jurisdiction was ju>i j^nuiunl, (ho liii'hl u> ihost^ rivers n^mainotl wiih the Sovoivii^u, auil wus \\o\ \u\nMo\i\\\ \o \\u' Srimiiov u> whom \lw Fi^'/' hiul hcmi ^n\\\U\\ \\ Uhoui {\\o. right ol' jurisilioiioii. 4. Th.u ih(> Soii;i\ior <>{" tho ?Vf7", luit hu\ inq-, it\ his rnpMoily uf Soignior. auv vi;;li( u^ \\\c w atcMs m (jiu'siion. ivMiKl lU'l ii'ivnslVr tluMu tv> his (\ '^AV/rMmv, oithcr in ('\pr(>ss t«Minsorl)y siilnutVuJ.uion or «xYr?mv/»- CiVrA' of t.ho. oomUty, o.i(h(-r nMuam th(^ pi\''inu-(ors of iho rivers ill qiiost ion. i>i- \\\c\ \\:\\c a n:;h( (o bo uuloumilii^l, it Vlxey ari> ilc^pvivrJ ot thoui. OESEEVATIONS OF THE HONOEABLE MK. JUSTICE DAY. This Court is one of an extraordinary character, and I must be permitted briefly to advert to the nature of the duties imposed upon it, and the peculiarity of the position which as Judges we occupy here. The object of the statute under which we sit, as declared in its preamble is " To abolish " all feudal rights in Lower Canada, whether bearing upon " the Censitaire or the Seignior, and to secure fair compen- " sation to the latter, for every lucrative right which is now " legally his, and which he will lose by such abolition." One of the chief difficulties in legislating upon the subject is indicated by the foregoing extract : it consists in settling the extent to which the rights claimed by the Seigniors ought legally to be sustained. With a view to such settlement it is provided by the 16th section of the act that in order to avoid all errors as to matters of Law, the Attorney General shall frame such questions " as he shall deem best calculated " to decide the points of law, which will in his opinion " come under the consideration of the Commissioners, in " determming the value of the rights of the crown, of the " Seignior, and of the Censitaire." These questions with such others as may be submitted by the Seigniors and Cen- sitaires, the Judges are to take into consideration, and after having heard counsel upon them, but without previously re- quiring any case or pleadings, which is prohibited by the 1 1/ 2 e statute, they are to render their decision or opinions, with reasons assigned, [motivees) ; and it is provided, that the de- cision so to be pronounced on each of the questions, shail guide the commissimiers and the Attorney General, and shall in any actual case thereafter to arise, be held to have been a judgment in appeal en dernier' reseort on the point raised by the question in a like case though between other parties. In conformity with these provisions, a series of questions framed by the Attorney General, and six distinct 'f series from as many Seigniors have been submitted to us, ■ embracing almost every hypothesis and proposition which can be suggested By a study of the Feudal Tenure, and of I the local laws modifying it in this country. By our answers to these questions we are expected to lay down abstract rules as an authoritative inteipretation and settlement of all the conflicts, obscurities, and uncertainties with which the whole subject is embarrassed. It is not, therefore, too much nto say of this Court, in the words of the Attorney General, that " its mode of organization and the powers with which "it is endued are extraordinary, and without precedent in * " other countries." Its character and functions are indeed altogether anomalous. There is an assemblage of Judges ; but the office to be executed is not judicial : they are to ex- press opinions but to give no judgment ; for there is nothing before them to serve as the basis of a judgment, no suitors, no issue, no evidence, no case or record, and the statute in terms declares, that no sentence is to be given against any party. The duty then would have been little more than that of commentators on the Law, were it not that a sanction is given, which confers upon our answers a real and formida- ble power. The statute enacts that they shall have the vir- tue of judgments in the last resort ; and this not merely against the parties who have appeared before Ihe Court, leaving to others interested the right of testing the soundness of these opinions, and of maintaining iheir rights before 3 e other Courts or Judges ; but llml they shall be absolutely binding against all classes of persons. These opinions, therefore, in effect not only interpret but supersede the Law, and if erroneous they repeal it, and substitute a n^w law in its place. Hence the functions we are exercising, are in their nature legislative : our position is not that of Judges, applying special rules to a particular case, for regulating and enforcing the rights of individual parties ; but it is that of legislators, giving an authoritative interpretation of the law for the governance of tlie whole community ; or which is the same thing establishing a declaratory law, — (1) " II y a" says Toullier" deux sortes d'interpretations, " I'une par voie de doctrine I'autre par voie d'autorite. " L'interpretation par voie de doctrine consiste a saisir le " veritable sens d'une loi dans son application au cas par- *' ticulier . L'interpretation par voie d'autorite consiste " a resoudre ies doutes et a fixer ie sens d'une loi " par forme de disposition generale , obligatoire pour " tous Ies citoyens et pour tousles tribunaux " II est evident qu'une telle disposition ne differe en rien " de la loi ; et par consequent que l'interpretation par voie *' d'autorite doit appartenir au pouvoir legislatif " L'art : 5 du code defend aux juges de prononcer par voie " de disposition generale et reglementaire sur Ies causes " qui leur sont soumises. Ce serait usurper le pouvoir le- " gislatif." I do not insist upon this peculiar and anomalous char- acter of the Court, with any design of questioning the wis- dom of the law by which it has been created. I am willing to believe that amid all the difficulties surrounding the set- tlement of this gi'cat public question, difllcultics which the agitation of the country has greatly increased, the course adopted has much to justify it ; but I would couple the extra (1) Tonl, Nos. 121, 136, 137, Mo. 4 e judicial nature of the office imposed upon us, with the in- trinsic importance of the subject, in order to shew how deli- cate and arduous is the duty, and how grave the responsibi- lity, which by this SdLgniorial act has been shifted from the legislative to the judicial body ; and 1 would derive from it this practical consequence, that since we have to deal with the matter we must be careful to do so with a severe and jealous logic, founded upon known principles of judicial in- terpretation, and upon them alone. It is to be viewed by us in its legal aspect only ; without regard to the interest it has excited abroad, to the unpopular and objectionable char- acter of any rights, or of any class to which it relates or to any other extrinsic consideration whatever. The questions and propositions laid before the Court by the Attorney General in substance tender the conclusion that the contracts affecting some of the most important rights of property under the feudal system, as it exists in this country, are illegal and null. It is Certainly a startling con- clusion. If the law be so, we must of course declare it ; but nothing less than an absolute certainty that it is so, can justify this Court in thus subverting the rights stipulated arid enjoyed by a whole class of great landholders in Seigniorial Canada, and confirmed to them by long and undisturbed possession. In all ages it has been the policy of civilized nations to sustain conventions and the rights of property. Every where we find rules established, which after the lapse of a certain period, preclude all question of the validity of Titles. Such rules are necessary for guarding against the insecurity which must result from the power of invoking cincient causes of nullity, long after the changes and chances of life may have rendered it impossible for the possessor to defend his rights ; without them nobody could feel safe. This is a consideration of great public moment, even in reference to individual cases, but when ancient nullities are invoked to impair the titles, not of one man or of ten, but of-an entire 6 e class of landholders in a country, it becomes a matter which yields in importance and solemnity to few which can arise in human society. In this view then of the subject, I repeat, that I turn to the closest and most inflexible rules of law, and of judicial interpretation of the law as the only safe guide. I feel that I am not to cast abroad for conjectural or remote reasons for such a construction of the law, as would disturb the established order of things, but that, on the con- trary, it will be my duty, to maintain the integrity of con- tracts, unless I find a settled principle or an express law of Qo doubtful meaning Avhich declares them bad. I have said that the questions and propositions of the Attorney General tender in effect a conclusion, that the conventions between nearly the whole body of Seigniors and their Censitaires, regulating some of the most important terms and conditions of the concessions of land, are illegal and null. The great question then, in its ultimate form and practical conse- quence, is not merely how the laws of Canada, anterior to its cession to Great Britain, and especially the arrets of 1711 and 1732 were understood at or immediately after their pro- mulgation, or how concessions were modified by their au- thority ; nor is it even solely, what the true construction of these laws was : but it is, whether the present owners of Seigniories, claiming under deeds many of which are more than a century old, can by the decision of this Court be now deprived of the benefit of their titles ; and the rights stipu- lated in them be virtually declared an abuse and a fraud. And with this statement of the question are to be coupled its dependent facts : First. That none of these titles have ever been declared null by judicial authority, but have with- out exception been acquiesced in and acknowledged in a variety of forms and in repeated instances, sometimes by successive generations. Second. That the parties to the original contracts have, in most cases, long ceased to exist, and are now chiefly represented by those who have paid for 6 e their property, according to its value under an order of things existing universally throughout Seigniorial Canada. This statement olfthe true question is important; for in the multitude of propositions, and the variety and extent of the discussion, we are in danger of losing sight of the ulti- mate character of the points which we have to determine, and of the great consequences which hang upon our deci- sion. Upon the whole subject counsel have taken a very wide range ; but the members of the Court cannot individually be expected to follow in this course. From the nature and magnitude of the interests at stake, it was proper that the largest scope of discussion should be encouraged ; but when we come to deal with it as Judges, we must fall back upon narrower and safer grounds. As an able diflusiveness has characterized the argument on these questions, so it is to be desired, that legal precision and a strict adherence to prin- ciple should characterize our answers to them. They are not to be disposed of, by the Court, as a matter of historical speculation, of social economy or of political expediency, but simply as unmixed questions of legal right. To their elucidation and settlement as such, great variety and force of reasoning, and profound learning have been applied from a variety of sources, as well at the Bar as on the Bench. 1 therefore design to avoid as well the citation of books and documents, which others have brought under the notice of the Court, as the repetition of reasonings already urged ; and to confine myself, so far as is practicable, to an announce- ment of the result of my deliberations, without entering upon any detailed exposition of the process by Avhich such result has been attained ; except in cases of obvious necessity, and those in which I may differ in opinion from the majority of my brethren. The observations, which I shall tlius otler, will constitute mv reasons or motifs for the answers in wliicb 7 e I concur with the Court, and for my dissent from those ans- wers upon which I am in the minority. The whole subject seems to me to resolve itself into three principal divisions. Tlie first division comprehends all the questions of the Attorney General numbering from one to five inclusive ; 're- lating to the effect of the feudal contract, and to the nature and extent of the Seigniors right of property dominium in the lands of his fief, under the Custom of Paris ; and all the supplementary interrogatories relating to the same subjects. The second division comprehends all the questions re- lating to the obligation of Seigniors in this country to con- cede their lands on a rent charge ; to the rate of such rent being fixed by law ; to the character and effects of the arrets of the 6th July 1711, and of the 15th March 1732; and to the powers of the Courts of Justice in this Province, to en- force those arrets since its cession to Great Britain. This division embraces the questions of the Attorney General numbering from seven to twenty-five inclusive and the thirty- ninth, fortieth, forty-first, and forty-second questions, together with the supplementary interrogatories relating to the same subjects. The third division comprehends the questions relating to the rights of the Seigniors in the waters ; and to the rights of banalite, banalite des moulins. It embraces the questions of the Attorney General numbering from twenty-six to thirty- eight. FIRST DIVISION. Upon the questions included in this division, relating to the nature and extent of the Seignior's rights of property dominium in the lands of his fief, and the effect of the feudal contract as to the division of property in them under the 8 a Custom of Paris, it appears to me that no difficulty can be felt. I take it to be undeniable that under that system of law, the Seignior was as truly proprietor of the lands held by him en fief ^ as a proprietorunder any other form of tenure can be. He had both the dominium directum and the do- minium utile^ or more properly the dominium plenum^ sub- ject of course to certain fundamental rules, which charac- terize that tenure just as certain other rules characterize the termre en franc aleu or in free and common soccage. By accensementy this right of property was divided, and the Seignior parted with just so much of it as was formally con- veyed to the censitaire ; subject always to certain dues im- plied by law, such as cens et rentes and lods et ventes, and also to such conventional charges and conditions, as he might see jfit to stipulate. This was the measure of the dominium utile^ and all that was not so conveyed was the dominium directum. The accensement or subinfeudation was optional with the Seignior. He might retain in his own possession the lands of his fief, and use and enjoy them as he pleased, or he might if he saw fit alienate and dispose of them ; but in the latter case, he was subject to certain restrictive rules established by the 51st and 52nd Art. of the Custom, which have already been recited and explained. The above view of the Seignior's rights, under the Cus- tom of Paris, is founded upon recognized rules of law resting upon the concurrent authority of the best writers on the feu- dal system. Henrion de Pansey says : " L'universalite du " territoire appartenait originairement au seigneur direct, et " il est encore proprietaire de tout ce qu'il n'a pas alicne, " de toutes les parties qu'il n'a pas comprises dans lesbaux " a cens qu'il a juge a propos de faire." (1) I make no fur- ther citation here, because these authorities are before the Court in a variety of forms, and particularly in the elaborate (1) Dissertations Feod. Eaux. §VII pp. 557 to 559. 9 e and able examination of the question by his Honor i\\& pre- siding Chief Justice. SECOND DIVISION. The second general division comprehends the questions which relate to the obligation of the Seigniors in this country io concede their lands on a rent charge ; to the rate of such rent being fixed by law ; to the character and effect of the Arrets of the 6th July 1711, and of the 15th March 173:2 ; and to the powers of the Courts of this province, to enforce these arrets since its cession to Great Britain. In entering upon this division of the subject, it may be at once assumed that the great design and policy of the Crown of France, in granting large tracts of land in New France, was to colonize the country. This is apparent from the tenor of the Royal Grants, from the acts of ratification from the arrits de retranchement and indeed, from all tha orders and proceedings of the government, relating to the matter, as well before as after the arrets of 1711. In the Royal Grants, the policy has been indicated by the insertion of terms and conditions, of gradually increasing stringency. In the few concessions made before the year 1627, it does not appear at all ; and in those by the company of New France up to the year 1663, an express condition of culti- f \ vation is only found when they are made en censive. In the ! grants from 1664 to 1674 by the West India company, the | condition to clear and cultivate the land is not universal, or I \ even general, but it may be frequently found in them and becomes more frequent with the advance of time ; and in these grants we find also the obligation imposed, to make the tenants cultivate and inhabit their lands, under penalty ' of their being reunited to the Seignior's domain. Almost, '• f all the grants under the Royal Government from 1674 con u?.in these conditions of cultivation ; and from about the yeai" ? i 10 tf 16S3, ihey are inserted in a nriore stringenl form, providing^ that if the lands be not cultivated withm a specilied time (usually 2, 3 or 6 years) the grant shall be null ; and in the ratification by the King of the grants of eleven Seigniories between the 6th July and the 6th November 1711, it is de- clared that the grantees shall be held " d'y tenir feu et lieu, " et le faire tenir par leurs tenanciers, a faute de quoi, les " terres seront reunies au domaine de Sa Majeste ; et de " deserter et faire deserter incessamment les dites terres." Subsequently to the year 1711, four gi-ants require in spe- cific terms, that the lands shall be conceded " a simple titre " de 7'edevance sans inserer ni sommes d^argent ni aucune " autre charge^^ and prescribe the amount of the rent. These are the augmentation of Beaumont conceded on 10th April 1713. Mille Isles conceded 5th March 1714. Lac des Deux Montagues conceded 17th October 1717 and the augmentation of St. Jean, Riviere du Loup, conceded 18th April 1718. In the Lac des Deux Montagnes these condi- tions were, by the acts of ratification in the years 1718 and 1735, relaxed and changed for others of a very favorable na- ture ; shewing that the King after the arr6t of 1711, followed no certain rule, but inserted in each grant such terms as he deemed fit. A considerable number of the grants, subse- quent to that period, have the following clause, " de faire *' inserer pareilles conditions, dans les concessions qu'il fera " a ses tenanciers, aux cens et rentes et redevances accou- " tumes par arpent de terre de front sur 40 arpent de pro- " fondeur." There is also a series of royal arrets or decrees extending over almost the whole period of the french domi- nation. The first is on the 22d March 1663 and is an order for the revocation of all grants of land, unless they were cleared {defrichees) within six months. Then comes an ar- r6t of the 4th of June 1672 requiring the Intendant Talon to make a report of the unsettled lands in order that one lialf of them might be resumed by the Crown. This was followe d by another arr^t in the same terms on the 4th June 1675, and li e by both these arrets it was to be a condition of the regrants of the lands, that they were to be cleared within four years from the grant. By letters patent dated the 20th May 1676, the King empowered his Lieutenant General Frontenac, and the Intendant Duchesneau conjointly, to make grants ; sub- . ject always to ratification within a year from their date ; and to the condition of the land being cleared and cultivated {defrichee et mise en valeur) within six years, under pain of nullity of the grant. On the 8th May 1679 an arret orders, in conformity with the arret of the 4th June 1675, (under which the Intendant had made his report as required) that one fourth of the unsettled lands should be resumed by the Crown ; and also that in each year after 1680, one twentieth of them should be resumed, and regranted to others by the Lieutenant General and Intendant, by virtue of their letters patent of the 20th May 1676. It is to be observed with res- pect to all these arrets or decrees, that they are not restricted in tlieir operation to lands held in fief and Seignioiy, but in- clude all grants of lands which had not been redeemed from a wild state. The same obligation to settle and cultivate is announced in the acts of confirmation of the grants. There is one by Frontenac 1674, another by him in conjunction with Duchesneau, on the 29th May 1680, in which it is made a condition to cultivate defricher vvdthin six years under pain of nullity. The same rigorous condition is inserted in the confirmation by the King, on the 15th April 1684, of the grants made by the Governor LaBarre, and the Intendant De Meulles between January 1682, and September 1683 ; and also in the confirmation, on the 14th July 1690, of the grants made by the Governor Denonville, and the Intendant Champigny, between November 1698 and October 1699. The royal confirmation 6th July 1711 of the grants made by the Governor DeCalliere, and the Intendants Talon and Champigny up to October 1710, among various other condi- •tions, contains that of clearance and habitation, " d^friche- 12 € merit et tenir feu et lieu^^ under pain of nullity; and spe- cially provides that these conditions shall be binding al- though not stipulated in the grants. Taking then the con- ditions of the grants, and those contained in the acts of con- firmation, together with the comprehensive terms of the se- veral arrets de retranchement, it may, I think be asserted "without hesitation, that all the lands granted previously to the arrM of 1711, were independently of that arret liable to be reunited to the domain of the Crown, in case they were tiot cleared and settled within a specific period of time. Indeed, nothing can be more explicit or more stringehtj than the terms in which the obligation to clear and cultivate {defricTier) is expressed in these instruments. But even without such expressions, the design and policy of the so- vereign must be inferred from the nature of things. After the Great Companies, which successively became proprie- tors of the colony, had surrendered their rights, and a Royal Government had been established, the first object of admi- nistrative and legislative action would naturally be to sub- due the wilderness of this wide territory in the new world, and to cover it with cultivation, and a population from the parent state. So far the intentions and policy of the Kings of France are too manifest to admit of controversy. But when we come to enquire into the particular means by which this policy was to be carried out, and whether for that pur- pose, a legal obligation to concede his land, was imposed iipon the Seignior from the beginning, a question is raised touching the rights of property, which assumes an entirely different character. By the law, as it obtained under the Custom of Paris, the Seignior was under no obligation to concede. If such an obligation were to be found as an ex- press condition of his gi^ant, of course, no difficulty could be felt : the contract would make the law for those who were jjaarties to it ; but it is admitted that no such expressed con- dition exists in any grant anterior to the year 1711, and iti« 13 e surely not allowable to assume, as a matter of implicatioii, and in tlie lace of the law, that merely because an object of declared public policy might be advantageously attained by a certain course of action, therefore that particular course of action becomes obligatory upon all parties. The case must go much further to justify such an inference ; it must shew that in point of fact, the declared object of the grant, and the obligation imposed by it could not be satisfied in any other way. But it is certain that such a case is not before us i for the business of cultivation and settlement, might have been promoted and carried on in a variety of ways other than by conceeding the land. The Seignior might, for in- stance, have cultivated large tracts by his own servants ; or he might have given long leases ; or he might have caused them to be cleared by third parties, on the condition of their retaining as their own a certain proportion of them. By these and a variety of other modes, the lands might have been cleared and settled, as they have been in other colonies, without any concession en censive being ever made. The law, which exists as well for the protection of private rights as of public interests, cannot be changed upon an assump- ' tion so unsubstantial as this : nor yet can it be controlled by a declaration of the policy of the legislator, or by his inten- tions, unless these be expressed in the form, and subject to | the conditions necessary to make them law. Such legisla- tive expression of the royal intentions, I no where find an- terior to the arr^t of the 6th July 1711 ; and the conclusion, that, prior to this arret, the Seignior was bound to concede his lands en censive merely because that was apparently the most effectual made of settling the country, although such an obligation was unknown to the law of his tenure, and the object of settlement might have been attained by other means, appears to me far too loose and illogical to be made the basis of a judicial decision. Tixe truth seems to be^ that up to the date of the airrfit 14 fe of the 6th July 1711, the matter of concession by the Seigniot was left to his own discretion. That arret declares, that by the royal concessions to them they were permitted [per- mis seulement) to concede their lands, not obliged to do so, and the same form of expression occurs in the other arret of the same date. The government considered that self-inter- est, and common prudence would induce the Seignior to adopt the means obviously the easiest and most effectual, for causing his Seigniory to be settled and cultivated. His in- come and means of subsistence depended upon it ; and the preservation of his property also depended upon it, for if not put in a state of cultivation, he v/as liable to be summarily deprived of it. The Crown, the sole legislator, insisted con- stantly, and inflexibly, upon the work of colonization going on, but if the end were attained, left the means to the choice of the Seignior. It is apparent however, as well from the terras of the arret of 1711, as from the official correspon- dence which preceded it, on the subject of concessions and the relations between the Seignior and his Censitaire, that there had grown up a state of things greatly at variance with the royal views. The King expected that the Seignior would of course, for his own benefit, concede as fast as he could, but instead of doing so he speculated in the wild lands of his Seignioiy by selling them to other speculators, so that no settlement w^ent on. This description of commerce was regarded as a public abuse, and the arrets de Marly were the consequence then, and later the arret of 1732. The pre- amble of the first of these arrets, that relating to the Seigniors, sets forth, first : That the lands conceded in Seigniory remain uncultivated and w^ithout settlers ; and secondly : That the Seigniors refuse to concede their lands, in order to sell them, imposing at the same time like dues {droits de redevance) as were paid by the established inhabitants ; which, says the preamble, is entirely contrary to the intentions of His Majes* ty, and to the clauses of the titles of concession, by which it ^s permitted only to concede the landsmpon a title of rent (ti 15 e Hire de redeva/ice). The remedy applied by the arf6t tu these evils consisted of two orders or requirements, the first Avas that the lands should be settled and cultivated within a year from that date, and in default, should be reunited to the Royal domain ; and the second, that Seigniors should concede their lands upon a title of rent a litre de redevance^ without exacting any sum of money ; and in default of so doing the inhabitants were permitted to demand the conces- sion by summons, and on refusal, to resort (se pourvoir) be- fore the Governor and Intendant, who are ordered to concede the lands to the inhabitants so applying, for the same dues (droits) imposed upon other lands conceded in the said Sei- gniory ; and these dues were to be paid to the Receiver Ge- neral of His Majesty's domain, without the Seignior being entitled to any claim whatever upon them. It is to be observed of this arr^t, that it did not intro- duce any new rule respecting the obligation of Seigniors to clear and settled their lands ; that obligation, as has been shewn, existed before in its most rigorous form by virtue of the Royal Grants, and acts of ratification and the arrets de retranchement ; but it conferred an authority upon the Pro- vincial officers, the Governor and Intendant, to pronounce ordinances or decrees for escheating and reuniting lands to the domain of the Crown, and this was a new authority, which up to that time had not been exercised except by the direct intervention of the King. The arret also introduced a new provision, in relation to the manner in which the settle- ment of lands held in fief and Seigniory was to be carried out ; by obliging the Seignior to concede a titre de redevance without exacting money ; and by ordering the Governor and Intendant upon his refusal to do so, to concede his land for certain dues (droits) to be paid to the Crown. A further observation is rendered necessary by the ques- rion which relates to the extent of the application of this law. 16 e \ cannot avoid the conviction that in its terms it applies oni)' to those grants which had been made en seigneurie before its promulgation. The preamble, and indeed its whole tex- ture and phraseology seem to me to shew that it was not intended to affect subsequent grants ; which of course, the King could regulate by such special conditions as he might see fit. But on passing from the terms of the law to the fact of its repeated recognition, both under the French domi- nion and since, as being of universal application, I feel that it is too late to rest the interpretation of it, and to limit its operation simply upon the language in which it is express- ed ; and it is upon the ground of its having been invariably treated as a law applying to all gi'ants without regard to the time at which they were made, that I have concurred in the answer on the subject given by the Court. Upon the provisions contained in this arret relating to the concession of lands by the Seigniors, three important .questions have arisen. First. — Does the arret in imposing upon the Seigniors the obligation to concede, establish or shew either directly or by legal implication, that he was bound to do so at any fixed rate of rent ? Second. — Is a concession which stipulated the payment of a sum of money or other charges in addition to the rent void or voidable in whole or in part ? Third. — Has the authority conferred on the Governor and Intendant to concede under the terms of the arret passed io the Courts of this Province ? The first of these questions, viz : whetlier the arret obliges the Seignior lo concede at any fixed rate of rent, has perhaps been regarded with more interest and been more elaborately discussed than any other submitted to this Court,. 1.7 e h is certain tlie law contains; no express terms by which j | any specific amount of rent is fixed ; bat several proposi- ' tions have been argued for the purpose of shewing from its general scope and character, and the object it had in view, that there was such a specific amount fixed by law, or by Custom, or by both combined. These propositions may be ; reduced to two ; First. It is said the mere requirement to ; concede, necessarily implies the obligation to do so atacer- ; i tain rate ; otherwise the requirement becomes inoperative, ; i for the Seignior has only to demand an exorbitant rent, and | | thus avoid the law. The obvious answer to this argument i * is that in all cases turning upon the refusal of a party to do something required of him by law or by contract, the refu- sal may be either direct or implied, and in the latter case ; \ the Court exercises its discretion in determining what cir- cumstances constitute an implied refusal. Such a discre- tion belongs to the Judge even under our strict judicial sys- tem, and there can be no doubt that officers holding the larg- ^ er powers belonging to the Governor and Intendant, would ■ at once have determined, that the demand of an extravagant rent was a virtual refusal to comply with the law. They w^ould exercise a discretion in that respect as they would be obliged to do upon other points of at least equal importance. The general and imperfect manner in which the arrit is ex- | pressed, necessarily left much to be supplied by the officer enforcing it. For instance, they would be obliged to determine the quantity of land which the habitant was entitled to de- mand, for the arrM and the preceding law are silent on the subject ; and also to fix the amount of dues, droits, at which they w^ere to concede lands in Seigniories, where there had been no previous concessions, or where the concessions had not all been made upon equal terms. The truth is, that in order to carry out this law at all, il would have been neces- sary to exercise a large discretionary power. But there is a broader answer to this proposition. The arret of 171 1 had .provisions of a most stringent character for compelling Scig- 3 j8 e uiors lo obbfi've ilb reqiiiieiucnts. The abiiolLilc uixler iiicide upon them to concede implies, not a legal obligation, but a plain necessity for conceding on the terms customaiy in the Country, for the obvious reason, that nobody would be found to pay more ; just as in our time, it rarely happens that any body will pay more than the current price for wild lands or for the rent of a house. It is a matter which regulates itself w^ithout legislative intervention. The law says, concede for a rent ; if you do not, one of two things must follow ; either the King's officers will concede your land and take the rent, or if the land remain unconceded and unsettled it will be forfeited to the Crown. With these alter- natives before the Seignior, who can doubt that the rate of rent in concessions must from the necessity of the case as a matter of fact, but not as a rule of law, have been the customary one. But again it is argued as a second {proposition, that the requirement to concede, taken with tlic order that the Governor and Intendant shall do so, for tlie same dues imposed upon other lands conceded in the same Seigniory, justifies the conclusion that there was a univer- sal customaiy rate, to which the Seigniors under the law were bound to conform ; and this conclusion it is said is aided and sustained, as Avell by the fact that all the con- cessions in the Province up to the time of its cession to Great Britain, were made at low rates varying but little in amount ; as by certain judgments of the Intendants ; and the public correspondence and documents of the period, relating to the subject. The special question here submitted is still whether by implication of law, the Seignior was bound to concede at a certain rate of rent. The provision of the arrit which is relied upon, as thus legally implying that the rate of rent was fixed and obligatoiy, whether taken by itself, or aided by information derived from external sources, does not appear to me to justify the construction put upon it ; and for ihis reason. When upon the refusal of the Seignior to con- cede, it became the duty of the ofFiccrs of the Go\ einmcnt 19 t to do so in the name of llie King, the idea of the settlemeni of the terms of tJie concession by convention was of course exchided. It tlierefore became necessary that some certain rule should be established for their guidance in relation to such concessions, and no better or more obvious rule could be adopted, than that the terms should be the same as those of the concessions already made by the expropriated Seignior within whose Seigniory such lands lay. There was nothing new in this rule, it was derived from the recog-nized usage in France. In cases there, when the terms under which the Censitaire held were not settled by convention, or could not be otherwise ascertained, they were taken to be the same as those prevailing in the neighboring concessions. So far then from considering that the establishment of this rule, for the guidance of the public officers, shews that the same rule was applicable to the concessions by the Seignior, it seems to me to tend the other way, and to justify the presumption that as the rule was not expressly extended to these latter concessions, they M^ere to be made on such terms as the con- tracting parties might agree upon. As to the decisions of the Courts under the French do- ""' minion, I find none Avhich warrant the conclusion, that there was any fixed uniform rate obligatory by law or by custom 1 having the force of law. The chief, in fact, the only case ■ which has been presented to the Court as bearing materially upon this point is that of the Inhabitants of the Seigniory of Gaudarville and the Demoiselle Peuvret adjudged by the Intendant Hocquart on the 23rd January 1738. (1) In this case, the contest turned upon the situation and boundaries of certain lands conceded bv her, but of which no formal titles of concession had been given. She (the Defendant) offered before the Intendant to concede for sucli cens renics el droits as he should be pleased to order. She was main- tained in her pretension by the judgment, and the plaintiffs (1) E.l. et Ord. 8vo. 2a vol. p. 545. 20 e were ordered to take their titles from her accordingly, at the " cens et rentes ordonnes par Sa Majeste, savoir : un solde " cens par chaque arpent et mi sol de rente pour ehaque ar- '' pent en superficie et un chapon ou vingt sols au choix de " 'la dite demoiselle pour chaque arpent de front." From what source this alleged order of His Majesty was derived, whether from this rate having been specified in two or three of the Royal Grants before that time, or from the King's in- structions to his oflicer, or from that ready knowledge of his intentions which the intendants seem always to have had at hand, does not appear ; but it is Certain that notwithstand- ing all the researches which have been made, no such order has hitherto been found in the form of law. I abstain from any thing more than a bare mention of the decision on the 5th of Feb. 1675, by Daillebout in the case of Noir dit Hol- land vs. Berthe reducing the amount of cens ; for it appears upon the face of the judgment, that it was an exercise of ar- bitrary power, and it does not even assume to have been based upon any existing law. I do not deem it necessary to dwell upon the peculiar character of the decisions of these Courts, or upon the influence which they ought to have in the formation of our opinions ; but it may be said of them in general terms, that they so often combine with the ap- plication of the law, a discretion that is beyond law and without law, that it is difficult to extract fi'om them, I will not say any uniform jurispradence, but even any certain rule. They are frequently more in the form of orders or reglemens than of judgments, not unfrequently arbitraiy, and such as no Court of Justice acting upon recognized principles, and subject to the restrictions observed by mere judges, could ever have rendered. The fact undoubtedly is that the In- tendant, keeping in view the general policy of forcing sett- lement hi the country, applied the means which under the circumstances immediately before him, he thought best adapted to that end, and thus constantly gave decisions and orders, which could not have been justified in any Court in 21 e France ; and which certainly no Court in British Canada could venture to give. It would be a grave and dangerous error to suppose, that such decisions given under a political and judicial system, and in a state of society so radically different from ours, can be received as an unerring expo- sition of the law, or that as Judges, we can safely regard them with any other, than a very qualified respect. I pass therefore to the concessions. There is without doubt a uni- formity in the amount of rent, and in the general terms sti- pulated in a great multitude of the concessions anterior to the conquest ; and the change in these respects from first to last, is with a very few exceptions remarkably small. But these lo\v rates, and this uniformity do not establish that | | there was a legal obligation not to exceed them. They simply shew that the value of land was inconsiderable, and the progress of the country very slow. And these are indeed facts of history for in 1759. 150 years after the found- ing of Quebec, the whole population had attained only to some 65,000 ; and the accounts given by Charlevoix some 30 years earlier of the condition of the Seigniors, and of the colony generally aftbrd no exalted idea of the prosperity of either. But the uniform low rents even if unexplained by the circumstances of the Province, could establish no rule of universal obligation. I am willing to bow to the authority of a Jurisprudence of arrets and judgments, and to accord to them the force of law, — but a jurisprudence of concessions ^« is a novelty which I am not yet prepared to receive. I would admit that every concession in ccnsive in French Canada, and all in British Canada, had been made at one fixed and unvarying rate with the, exception of one Avhich Avas higher ; yet in the absence of positive law declaring such higher rent illegal and the stipulation of it null, I should hold it to be valid and binding. With respect therefore to the concessions, I have no difficulty in saying 22 e That they are not of a nature to sustain the argument, that there was at any time either before or after the arret of 171 1, any fixed amount of rent ; nor is the corresDondence relied upon any more effectual for that purpose. The official letters preceding the arrets of 1711, which call tiie atten- tion of the French minister to the necessity of lemslation upon the subject of the Seigniorial Concessions; — thememc^ rials of the King ; — the brevets of ratification of grants from the Crown, are not Law ; are not an authoritative interpre- tation of the Law. They are mere suggestions, or illustra- tions, or records of existing evils, and of remedies which it might be expedient to apply to those evils. All these sources of information, together with historical investigations into the State of the Country, the necessities of the population, and the immediate occasion of the law, may be admitted for the purpose of elucidating an ambiguous expression found in it, but not to supply a defect, and still less to make a law, wiiere none exists. If it had been the intention of the Legislator by the arret of 1711, to confine the Seignior in his concessions to a fixed unvarying amount of rent, surely it was the easiest thing possible to have declared it. Fin- ding no such declaration, I can presume no such intention ; and it is my settled conviction, that notwithstanding that arrdt, it was lawful for the Seignior to take avantage of the increasing value of lands, and by agreement with the habi- fant, increase his rates accordingly ; and that he might at any time concede one tract of land at any higher rate than another, in conformity with his estimate of their relative value, and the convention he could make with the party applying for it. This matter now cast before us in an aggregate form has been repeatedly presented to the Courts of British Canada in a great many particular cases, and the decisions upon it, without I believe a single exception; have substantially sustained the views above expressed. Wlieth- er then, upon grounds of original judicial interi)retatiou, or upon the anthoritv of lone: cslnblislied and nniforni jurispmd- 2:1 e ence, ihc pretension that there was at any lime a rixect amount of rent at which the Seignior was bound to concede, and which could not be varied by convention, may with safety be pronounced to be without foundation. The second question stated in the present division, is, whether a deed of Concession stipulating the payment of a sum of money, or charges reservations or proliibitions in addition to an annual rent, is void or voidable in whole or in part. And in connection with this question, it will be necessary to examine the points whether the arrets of 1711 and 1732 are still in force ; and if so, whether the law of prescription can be invoked, notwithstanding their provi- sions. My opinion has already been expressed, there was no rate of rent fixed by law, and consequently that any deed of concession stipulating an unusually high rent was not for that reason invalid. The immediate question now is, wheth- er it would be invalidated under the arret of 1711, by sti- pulating a money payment or any charges reservations or prohibitions in addition to the rent. I am clearly of opinion that it would not. In assigning the grounds upon which this opinion rests, I shall apply them directly to the case of the exaction or stipulation of a money payment ; because the Vv^ords " sans exiger aucune somme cVargent " are prohibitive, and make that a stronger cause of nul- lity, than is presented by the stipulation of reservations, with respect to which the arrdt has no express provisions. But the whole of my argument will apply to the latter case also, and for the reason just mentioned it will apply with greater force. To proceed then : the effect of the arret of 1711* in relation to this subject, is to create a right in, favor of the inhabitant to obtain from the Seignior a conces- sion upon a rent charge, d litre de redevance ; and if he insist upon that right and the Seignior denies it, the remedy 24 € is provided by the Law : — the applicant receives his con- cession from the public authority, and the Seignior is punish- ed by the forfeiture of his property. But if the party interested, instead of insisting upon his strict legal right and availing himself of his remedy, be willing to settle the conditions of the concession by convention with the Seignior, he is not forbidden in terms to do so ; nor can I find in the arret anything which seems to me by legal implication, to warrant a Court in pronouncing the nullity of such a con- vention. It is indeed not pretended that the arret in terms makes the convention void, but it is said, it requires a specific thing to be done in a particular manner, and prohi- bits the doing of another thing in connection with it ; and this requirement and prohibition are both founded on public policy. The Law therefore is one d'ordre public, and any contract derogating from it, must be regarded as null. Upon this proposition, that all acts at variance with the requi- rements or prohibitions of a Law founded on public policy, d''ordre public, are necessarily void, I have to remark, that it is one which must be received with caution and great qualification. If the acts complained of fall within the operation of the public criminal Law, or interfere with the fundamental institutions of the Realm, or afl'ect personal liberty, or the civil status, or violate public morals, the question of their nullity can rarely involve any difficulty ; but out of this class of subjects the expression, public policy, d^ordre public, becomes of uncertain signification, and conveys no precise or fixed idea ; for in this looser sense it may be said that every law which enacts rules for the Governance of the whole community upon matters of general interest, is a law of public policy, d'' or dre public, in so far as such interests are efiected. When therefore a L9.W like the arret of 1711 regulates merely civil rights and rights of property, but with a public object in view, the declaration of nullity under it must depend upon the circumstances of 25 e each case. ll is not enough for the voidance of the confmcfy to say that it is at variance with the provisions of the Law ; but it must also be shewn tiiat such variance is upon the pre- cise points, in whicli the policy of the Law or in other words, the public interests are essentially involved. " Multa prohi- benhir injure fieri qucB tamen facta tenenf^^ says Ulpian and again " Lex imperfecta, veluti Cincia, quse super certum " modum donare prohibet, et si plus donatum sit non " rescindit " and the same rule will be found to prevail in the jurisprudence of France. My meaning will be more fully illustrated by Vviiat follows. The requirement of the arret is to concede ; the prohibition is against the exaction of money on the concession. This prohibition is for the purpose of aflbrding to the inhabitant an additional facility in obtaining land, and thus to promote settlement in the Colony ; which is the great public object in view. If the inhabitant refuses to pay the mone}-, he has a remedy by which he may nevertheless obtain the land ; but if he consents to pay the money, and thereby obtains the land, the public policy, which is settlement, is answered, and the Law in so for as its object is of public interest is satis- fied. This then is the whole extent, to which the Law can be regarded as being of a character which prevents indivi- duals from regulating their rights by contract upon terms at variance with its provisions. It should never be lost sight of, that in matters of property, the primary Law is that which the parties make for themselves by mutual agi'eement, and that all the presumptions should favor its observance. For although it is unquestionable, that private rights must yield, when they are in conflict with n Law intended for the promotion of the general interests, yet they yield so far onlv, as is absolutely necessarv, and the invasion of the private right by tlie public necessity must be stopped at the precise point a\ liere such necessity ceases. In the case before us, the necessity ceased when the settler obtained his^ 4 26 e land, and tiie principle applies to prevent tin? exlcni^ion by implication, of any further invasion of the common Law right of parties to regulate their afi'airs as they might see fit. But before leaving this point, I will briefly state the argu- ment upon it, in another and more technical form. The arrfit, it is admitted, does not in terms pronounce the nullity of the contract. Does it create such nullity by legal impli- cation ? The general rule seems to be, that direct and absolute prohibitions not coupled with penalties imply the nullity of all acts contravening them ; and prohibitions coupled with direct and absolute penalties or forfeitures, might in some cases, but far more doubtfully, be held to fall within the same rule. But the arret of 1711 presents neither of these conditions. The refusal to concede, merely gives to a private party, a right to a certain remedy. Upon his option to pursue this remedy the forfeiture depends ; no other authority public or private can provoke it. If he drop the pursuit the matter remains as it was before. The Seignior notwithstanding his refusal, keeps his land, and the Law,, although defeated, is inoperative and powerless. The forfei- ture then under the Law, is secondary to the enforcement of the private right, and if the only person entitled to enforce it,. and who may if he please thus abstain altogether from enforcing it, waives a part of his interest and his rights and enters into a contract by which the great object of the Law is attained ; by what possible latitude of construction,, and upon what satisfactory reason, could a Court declare sucli a contract null ? I have looked carefully into the doctrine of nullities implied in cases of positive requirements and prohibitions, with penalties, and without, and I can fmd none which goes so far as to include a case like this. Indeed the observations of Mr. Hocquart in his letter of the lOtb October 1730, concluding with the maxim " volenti non fit injuria, " shew that this idea of the nullity of the fonression, under the arr^t of 1711 in corisrqucncr of lh«" payrnrnt of mnupy, is ^hogpthera Tnodern one. 27 i 1 pass to the c-o)isideralioii of the arr^l of 1732, wliioii ;ifier reciting at fall length the two arrets of the 6th July 1711 and alleging their infringement in strong and pointed terms, requires that all proprietors of lands held in Seigniory iheii uncleared, shall bring them into a stale of cultivation, and settle inhabitants upon them within two years from that date, under pain of forfeiture, without any further proceed- ing being had. It then prohibits all Seigniors and other proprietors fromsellingany woodlands, ien'es en hois deboui^ on pain of nullity of the deed of sale, and restitution of the price, and also of the forfeiture and reunion of the land to His Majesty's domain. The arrdt also orders that both the arrets of 6th July 1711 be put in execution according to their form and tenor. There can be no doubt, that this law makes null all sales of wild land by any person whatever ; its declared object being to exclude all commerce in such lands, as an abuse prejudicial to the public interests. The law is prospective in character, applying only to contracts of sale vrhich might afterwards be executed. It contains no declaration of nullity of the sales previously made, al- though it sets forth that Seigniors and others had in viola- lion of both the arrets of 1711 sold and resold wild lands ; thus confirming the opinion that no nullity was created by the arret of 1711 relating to the Seigniors. Further it is to be observed that the law introduces nothing new, except the general prohibition to sell wild lands, and the annulling ol' all such sales, with restitution of the price and confiscation of the land to the royal domain. In all other respects, this arrgt is nothing more than a recital of the arrets de Marly ^ with an injunction that those arrets should be put in execu- tion. Every thing therefore contained in this arret, could have been enforced under those of Marly if it had never been pro- mulgated, with the sole exception mentioned of declaring the nullity of sales of wild land and the forfeiture consequent jjpon such nullity. 28 e It remains to inquire, wliether tlie stipulatioii of con- ventional charges, reservations and prohibitions in the con- cessions in addition to the rent, was a cause of nullity. The observations which I have made on the arret of 1711 as af- fecting stipulations for the payment of money apply as I have already stated, with additional force to stipulations of this nature ; for if there is no nullity where there are express prohibitive words, it is certain there can be none where such words are wanting. All that I would now add is, that the requirement of that law upon the Seignior is, not to concede for an annual rent, but to concede on a rent charge a titre de redevance, which I understand to mean an aliena- tion by contract of perpetual Lease, Bail it cens, in contradis- tinction to an alienation by contract of sale, a titre de vente. The arr^t prescribes the nature of the Title by which the land shall pass and nothing more ; it has no restrictive expres- sions as to the terms on which it shall so pass, except the prohibition to exact money, which has already been dispo- sed of. But in looking closely, at that portion of the arr^t which imposes upon the public authorities the duty of con- cedino: in case of the Seis'niors refusal to do so, we find new terms used in relation to such concessions. It is no longer the word '' redevances^^ but the more general term rights or dues imposed, aux memes droits imposes sur les autres terrcs concedees dans les dites seigneuries. This expression droits imposes^ may include all stipulated rights of whatever description, and the unqualified use of the term warrants the conclusion, that the law recognized and adopt- ed as legal and binding on the parties all those rights which had already been settled by convention between the Seig- nior and his Censitaire. It cannot be answered to this, that the concessions, anterior to 1711, contained no burdensome charges or reservations ; for from cases recorded, we find the contrary to be the fact. There is for example an ordonnance of M- Raudot. the great reformer of seigniorial abuses, dated 29 e 'die ;2nd July 1706, maintaining a reservation of a mobt onerous character by the Seigniors of the Island of Montreal, to cut firewood upon the lands of the censitaires ; the judg- ment merely subjecting the right to a very liberal limitation which the Seigniors themselves proposed. Another ordin- ance of the 4th June 1710 by the same Intendant maintains the Seignior of Chevrotieres in his right of corvee ; and this right was again confirmq^ and enforced, by an ordinance of the Intendant Begon, dated 22nd June 1716. A similar decision, in favor of the Seignior of the Isles Bouchard, upon the right of corvee^ was rendered by M. Begon on the 8rd June 1714. It is unnecessary to seek for other cases ; for the admission involved in any one case, that a right which is not legally incident to the tenure, may be validly stipulated, is fatal to the entire argument for the nullity of stipulations imposing the same rights or other rights of the same nature. If one such right may be established or reserved by convention, no reason can be assigned why the others may not. It may be objected, that the particular rights maintained by these ordinances, were not of a nature to be exacted or stipulated in behalf of the Royal Domain ; but that does not affect the argument, which is that the use of the expression " m^mes droits imposes sur les autres terres concedees dans les dites seigneuries,'''' taken with the fact, that burdensome rights had before that time been imposed by convention and judi- cially enforced, overturns the pretension, that the obligation to concede "a titre de redevances et sans exiger aucune som- me d'argent ;" implies a prohibition to stipulate any right or reservation not legally incident to the tenure. The Arret of 1732 adds nothing to the others in this respect. It recites literally and fully both arrets of the for- mer date and then goes on to say that His Majesty was in- formed " qii'au prejudice des dispositions de ces deux arrets il y a des seigneurs qui se sont reserve dans leurs terres des domaines considerables, q^iHls vendent en bois debout, au 30 e lieu de ita concvdtr siinpleinent a I'drt de redevances,''^ and therefore, Seigniors and other proprietors are ordered to clear and settle their wild lands, within two years on pain of for- feiture. The use of this v\ ord simplement, has been made the basis of an argument, to establish the exclusion and nul- lity of all stipulations of charges in addition to the rent ; but it seems lo me that it only requires to read the passage to be convinced that it does not sustain such a conclusion. The King is informed, " qu'ils vendent leurs terres en bois debout au lieu de les conceder slmplement a. titre de rede- vances." There is here no legislative disposition ; it is the mere assertion of a fact, and that not in connection with any question of imposing charges, but in connection with the sale of wild lands. All that it amounts to is that Seigniors pell their wdld lands instead of simply conceding them d litre de redevance. Nothing follows this announcement to give greater stringency to the former laws, which are mere- ly ordered to be executed according to their tenor and effect ; without any modification being made in them. Surely, contracts ought not to be set aside upon authority so remote- ly inferential and so uncertain as this. It may be proper, before leaving this subject, to allude to an opinion given nth February 1767, by MM. Elie de Beaumont, Target, and Kouchet, three eminent lawyers of the Parliament of Paris, and registered at Quebec 28th August 1782. It is to be found in the second volume of Seigniorial Doc. p. 235. These gentlemen state in positive terms. " Quant aux bois 6tant sur les terreins de vassaux : si ie seigneur s'en est ex- pressement reserve la propriete nul doute que les vassaux ne les peuvent couper ny vendre puisqu'ils ne font pas par- tie de la concession " and I am satisfied that these expres- sions are intended to apply not as between the Crown and the Seignior, but as between the Seignior and the censitaire. In several statutes of the Provincial Parliament, there is to be found in terms more or less direct a general admission 31 & of the legally of stipulated rights. These are piincipally the statutes which relate to the commons, in difrerent parts of the Province. The 1st Geo. IV, cap 17, to par- tition the common of the Seigniory of Boncherville in its 13th section has the following language " nothing shall " extend to prevent the Seignior from having and exercising " all and every the rights of cens et rentes, lods et ventes, " corvees, retrail and other rights to him due and owing " and which may become due and owing by virtue of the " original deed of grant of the said concession or by virtue " of the deeds of grants of the lands or dwellings of the said *' proprietors, or by virtue of the instrument of grant of the " said Seigniory generally, all each and every which right " and rights whatsoever are wholly and specially reserved ; " which reservation shall be expressly stipulated in the con- " tracts, which shall be passed in manner hereinbefore pres- " cribed." This is, by implication at least a large recogni- tion of the right to stipulate charges beyond those legally in- cident to the tenure and (1) the same or similar expressions occur in other statutes. The statute 3rd Geo. IV, capr 14, relating to the township of Sherrington, and the Seigniory of Lasalle, in the 1st, 2nd and 3rd sec. seems also to recognize the validity of conventional charges. It may also be mentioned that in very numerous cases opposi- tions a fin de charge by Seigniors for the preservation of these conventional rights , against the effect of sheriffs' sales, have been maintained ; but in all the instances which have come to the knowledge of the Court, this has been without contestation . These jiidgments therefore establish no jurisprudence ; but they indicate what for a great length of time has been the course acquiesced in and pursued both by the parlies interested and the Courts. (1) 3r(l Geo. IV, cap. IS, and tho. kh Geo. IV, cap. sec. 6. 1st. William 1\' , cap. 32, sec. 7 an'l 1"3, and the 3rd William IV, cap- 24- sfc. 9, 3:2 e There are .some obvious limitations to stipulations of this nature, to which I will briefly allude. The first is ap- plicable to all acts of alienation, and seems almost too plain to require mention. It is, that the deed must not contain such and so many reservations as taken in the aggregate, would comprehend the whole estate ; as would be the case if «/Z the reservations specified under the Attorney Generals thirty ninth question, were found together in the form they are there put. But the reserv^ation of any part of the estate less than the whole, is not liable to the same objection. The other limitation is that every such reserve, isliable to be modified and defeated, whenever it manifestly hinders cul- tivation and settlement. Thus the Seignior could not, by a reservation of timber or firewood, obstruct the clearance and habitation of the land by his censitaire. Subject to these limitations and such others as are by the common law ap- plicable to all contracts, I am of opinion that the Seignior reserving a recognition of the Domaine directe, could law- fully stipulate all such charges reservations and proliibitions as he might think fit, and that neither the censitaire holding under the contract to which himself or his predecessors were a party, nor the crown, is entitled to obtain any reduction of such stipulation. I am desirous that any opinion expressed upon the subject of these reservations and prohibitions, should be regarded as simply the opinion of a lawyer and a judge compelled to declare whether they are legal or illegal. In holding them to be legal, I cannot avoid feeling as a citizen, that from their exacting character, they constitute a feature in the Seigniorial Tenure of this countiy peculiarly odious, and although they may not after all, be of much pecuniary value ; yet without doubt, among a free and in- telligent population, their pressure would be sensibly felt, and perhaps more impatiently suffered, than those incidents of the tenure, which in so far as their effect upon the pros- prrity of the country is concerned, arc far more burdensome 33 e and objectionable. In order thai the precise opinion which I entertain upon the nature of the arrets of 1711 and 1732, and upon the subject of these reservations and prohibitions may be recorded, answers have been prepared to the 18th, 19th and 20lh and also to the 39th and 41st questions of the Attorney General, and in these answers M. Justice Meredith and M. Justice Badgley concur. The question here presents itself w*hether these arrets of 1711, and 1732, have still the force of law. With res- pect to that one of the 6th July 1711, which relates to Sei- gniors, I have acquiesced in the answer which affirms that it has. It must I think be admitted to be in force, at least in that restricted sense, in which a law can be so consider- ed, which establishes a rule of conduct, that for want of competent official authority, it is impossible to carry into execution. The arret of 1732 offers greater difficulties in reference to this question. I have said of this latter arret, that the only new dispositions contained in it are those by which sales of wild land are declared null, with the penal- ties consequent upon such nullity. The point of examina- tion therefore is narrowed to these dispositions. I must con- fess that I have felt great embarrassment and perplexity in coming to a final opinion upon this subject. Considerations of great weight, favored the conclusion that these disposi- tions of the arret had ceased by the lapse of time, and the change of circumstances, to have the force of law. I shall content myself with a brief statement of some of these con- siderations. The prohibition to sell wild lands, and the nullity of such sales, are by the terms of the law of univer- sal application ; including the Seignior, the censitaire, and the franc aleutier. The nullity of every such sale under all circumstances, is declared without limitation or qualification. If therefore this portion of the arret be in force, no censitaire could buy from his neighbor a few acres of uncleared land ierxcs en bois dtboiit for the snpplv of fuel to his house, no 5 34 c man with too much land, could sell a portion ol the wooded acres, in order to be able the better to cultivate the remaind- er ; and a party after having bought the land in a wild state, and cleared and improved it into greater value, would still fall under the ban of the law ; and his title be of no validity. Under the french dominion, all this might be adjusted and controlled. The Intendant possessed functions of a mixed nature, partly judicial, partly legislative. With his various and flexible powers he could always measure the applica- tion of the law according to his discretion. He could en- force it, in such cases as he might deem it just and bene- ficial to do so ; and in other cases, such perhaps as I have supposed above, he would abstain from its enforcement ; and with a declaration from his intuitive knowledge that such were His Majesty's intentions, would send the parties out of Court. But under the existing system, no Judge can exercise the same discretion. If the law be in force, it is in force for all parties, and for all cases, which fall within its provisions. Every prohibition, and every right which it establishes, may be invoked, and the Courts of law will be compelled to enforce them, without regard to the evident in- justice, or other circumstances of evil public or private, wiiich may be inseparable from their enforcement. Ought not then tlie disappearance of the official powers, which could extract from the law all that was salutary in it, and avoid all that was mischievous, to carry with it, the abro- gation of the law ; when under the inflexibility of the new system its execution might lead to so much injury ? Is not such a law temporary from its intrinsic character ? Again it may be said that a law prohibiting the sale of wild lands is necessarily temporary, as being founded upon a transient condition of society, which in a young and growing coun- try, every successive year must modify. Tlie inevitable re- sult of progress, must be to change the relative value of wild and cultivated lands ; so that at last the former will become the more valuable of the two, This is even now 35 e t!ie case in a large portion of seigneurial Canada ; and so completely are circumstances inverted, that the present po- licy in most of the seigniories, is to preserve, and not to clear the wood lands. When such a state of things has re- placed the old order, it would seem that a case is presented, in which under the rules of the civil law, inapplicability, cessation of motives, and change of times, of manners, and of circumstances might be regarded as having effected a re- peal. " Une loi (says Merlin) cesse d'etre obligatoire, non " seulement lorsque le legislateur I'abroge par une disposi- " tion expresse, non seulement lorsqu'elle est suivie d'une " autre loi qui lui est contraire, mais encore lorsque I'ordre " des choses pour lequel elle avait ete faite n'existe plus, et " que par la cessent les motifs qui Pavaient dictee, Ratione " legis omnino cessante cessat lex, disent tons les interpr^- " tes." (8 Merlin Qu. de Dr. p. 547, vo. Tribunal d'appel, § 3.) This is the expression of the civil law, and it has been followed under the dispositions of the modern code in France. (1) The only addition which I shall make to this view of the subject, is that the dispositions of the law under examination, from the time of its promulgation to the pre- sent day, nearly a century and a quarter, have never in any instance that has come to the knowledge of the Court been carried into execution. It is true that it has in many ins- tances, and with a greater or less degree of directness been declared to be in force, but I think it may be safely asser- ted, that notwithstanding all the diligence of research which from so many quarters has been applied in the inves- tigation of the important subject before the Court, no man can affirm as a matter of fact, that these dispositions of the (1) Authoiities, 1st. Toul. No. 153 and IGl to 165, Rep. de Guyot' vo. Desuetude, p. 55S, Ptep. de Merlin, vo. usage, % 2, Hub. de Conf" Leg. p. 20, no. 9, En H. Inst. p. 19, no. 45. Dwarris on Stat. 672' Disc. Prele. du premier projet du Code civil, 1 Doniat. C. 12 et no- 5, p. xxiv, fol, Ed. Also Liv. 1, tit. 1, Sec. 17, p. 4, Reflexions by Jus. sieux de Montluel, pp. 59, 74 — 9 D'Aguesseau, pp. 446-7. Titre 329, Dal. Diet, de Leg. vo. Lois, nos. 355-6. 36 e arrSt of 1732 have ever been judicially enforced. It would certainly seem, then, that this arret, in so far as relates to the new dispositions contained in it, falls within many, if not all the conditions which are necessary for the abroga- tion of a Law by desuetude. And when we consider the in- trinsic character of this portion of the law, its utter inap- plicabilily to the present state of the Country, the mischiefs which might follow its indiscriminate enforcement, the change of views as to what is prejudicial to the public interest, and the consequent explosion of the idea that wild lands ought not to be bought and sold ; joined to the fact, that it has never in one known instance been carried into execution, it can scarcely be denied that there is much to favor the conclusion, that the Arret of 1732, in so far as it is a new law ought now to be regarded as inoperative and a dead letter. But notwithtanding all these considera- tions, I have after great hesitation, and a long balanced deliberation been led to a conclusion adverse to them. The arret without doubt presents features which shew that it is in some respects intrinsically temporary and inapplicable to the present order of things ; — And the evil which might arise from its indiscriminate enforcement might be great. In the examples given, I have by no means exhausted the possible illustrations of it. But in so far as the^dispositions prohibiting sales, apply to the Seignior in his relation to the Censitaire, their enforcement is not liable to the same ob- jection. In this respect these dispositions are merely the completion of a system. They cover the imperfection in the Arret of 1711 ; which in requiring the Seignior to concede without exacting money failed to declare null the contract by which money was to be paid. The new law is a sequel to the old, adding to its provisions a more stringent vindication. And it is to be remembered, that in now dea- ling with this question, we cannot deal with it in any point of view, or with reference to any relation, other than that between the Seignior and the Censitaire. What is to be 37 e done with other classes of cases, which might appear be- fore the ordinary tribunals, we are not now called upon to consider ; and it may be answered to the argument founded on these, and similar cases, that after all it is only an ar- gument ab inconvenienti^ and does not afford legal ground for holdino', that the law has lost its force. But there is a stronger and I think a conclusive view of this subject. It is always a matter of extreme delicacy, for a Court to de- clare that it will not execute a Law, because in its opini- on, it has fallen into desuetude. This position should never be taken without great caution and careful examina- tion. It is safe only in cases admitting of no reasonable doubt ; for strictly speaking, it his beyond the legitimate province of the judge, and belongs more properly to that of the Legislator. It is the business of Courts to apply and enforce the Laws ; it is that of the Legislature to determine when they have become useless, or mischievous and to abrogate or change them accordingly. In the pre- sent case, reasons of this nature apply with unusual force to oppose the judicial declaration, that the law has by desuetude, become a dead letter. A Provincial Legisla- ture in one form or another, has been constantly at hand from year to year almost ever since the cession of the Country. Before this Legislature this Arret together with that of 1711 has been brought at various times, and formed the subject of elaborate discussion, and the opinion that it had ceased to be in force has never been sustained ; but the contrary has invariably been affirmed. This affirmation would of course not have made it law, if it had ceased to be so , but the affirmation by the popular branch of the Legislature, that it Avas laAv, without any action being taken to repeal it, shews that in the opinion of that body, its repeal was inexpedient. But besides what has occurred in the Provincial Legislature, there is a series of opinions from Law Officers, and other public functionaries, begin- ning from an early period after the cession of the Country 38 e and continuing down to our own day, in avor of tlie vitality of the law ; and the same conclusion is expressed or implied by different Judges, and in numerous cases which have come before the Courts. I refer to the judg- ments already cited by the presiding Chief Justice, against the seignior of Longueuil ; and those by the representa- tives of the late Mr. Dunn, against the holders of property in the seigniory of St. Armand ; and the others of later date rendered in the districts of Quebec and Montreal. It is true, as has been before stated, that these new dispositions of the Arret of 1732, were never actually enforced ; but it is impossible to escape the conviction, that they were regarded in all these various instances, as still possessing the virtue of law. In the face of these opinions of Judges, Law Officers, and Legislators, I have felt that the case presented for declaring the law inoperative, is not sus- tained by reasons so absolutely conclusive, as to warrant me in entering upon the delicate and debateable ground which I must necessarily occupy in deciding that the ArrSt of 1732 ought to be regarded as an abrogated law ; when the Legislature has recognized its existence and advisedly abstained from repealing it. Upon the conclusion that these laws are in force, there arises under one of the supplementary interrogatories, an enquiry of importance, as applying to the question of the nullity of the contracts between ^e seignior and censitaire, in all the forms in which it has presented itself. I mean the efl'ect of the lapse of time upon them. In my opinion, there is no reason why the laws of prescription should not be available to those now interested in maintaining these contracts, in the same manner and under the same conditions as they are in relation to other contracts. The uninterrupted possession and enjoyment for thirty years, by seignior or censitaire, ouglit I think, to constitute a title, not lial)le to be invalidated by any alleged cause of 39 e nullity, which may be supposed to exibl in the original convention. The only plausible objection which has been urged against this conclusion is that the original titles were contrary to laws " d'ordre public " and therefore so absolutely void that no lapse of time could cover their nullities. The ansAver to this objection, is to be found part- ly in the view, I have already expressed, as to the extent and meaning within which the Arrets of 1711 and 1732 are to be considered laws " d'ordre imhlic ;" and it wall be completed, by a brief examination of the nature of the nullity declared by the latter of these Arrets. The nullity declared by the Arrit of 1732, cannot I apprehend, be regarded as absolute, [nullite ahsolue) in the stringent, and most unqualified sense of that term ; such as it w^ould be if the contract stipulated a crime, or immorality, or some- thing which could not produce even a natural obligation. In these and like cases, the nullity might be opposed, not only by the party interested, or by the public officer, but by any third person whatever ; and if not opposed, it would be the duty of the Judge himself to take notice of it. Nullities so absolute as these, no prescription can cover ; but it seems to me to be plain, that the nullity of sales under the Arr^t does not belong to this class. I think it will scarcely be contended, that any party other than the vendee, who is entitled to the restitution of the price or at most the vendee and the Crown could invoke it. This feature alone, necessarily gives to it the char- acter of a relative nullity, as between the vendor and vendee . As a consequence , the law of prescription would apply in relation to these parties, and the right of the seignior as against the censitaire might be established by it ; and when established, I do not see how the Crown could interfere for the benefit of the censitaire, to defeat the right which the seignior had thus acquired against him. As to the Arr^t of 1711 if any nullity had been created by it, which 1 have shew not to be the case, it 40 e tV'ould be one exclusiveley between the seignior and cen^ sitaire and with respect to which no action is given to the Crown. Therefore beyond a doubt it would be covered by the lapse of time. Let us see, whither the doctrine, that no prescription can cover this nullity, would lead us. Suppose land sold in a wild state, en hois debout, by a seignior, or by one eensitaire to another fifty years ago, and afterwards redu- ced by the purchaser, to a state of cultivation and value. Could any stranger, who might happen to obtain possession of the land, answer to a petitory action by him, that the original sale was null under a law cVordre public ; and that therefore, no title could be acquired, either under the sale, or by the law of prescription ? Or if no such excep- tion were raised, w^ould it be the duty of the Court to raise it, and thereupon to dismiss the action and leave the trespasser in possession of the land ? Those who hold, that the nullity of the sale is absolute, in the strictest sense of the term, under a law d''ordre j)vMic ; and that no pres- cription cover it, must be prepared to accept thes conse- quence of their doctrine. Is this the existing law of the land and in the cases which may hereafter present them- selves, will Judges be bound to apply and enforce such a law ? I feel convinced that it is not so, and that neither of the laws referred, can, by a sound judicial interpreta- tion, be made to deprive parties of the benefit of those salutary rules, which in all countries have been found so important, for quieting titles, and securing tranquility of society. On third Question which presents itself for examina- tion, upon the provision and effect of the ArrM of 1711 is whether the authority conferred by it upon the Governor and Intendant to concede lands has ever passed to any of 22, line 7, in lieu of concession, read : concessions,, " line 15, in lieu of of law, read : of the law. " line 20, in lieii of unvarging, read : unvarying^ 40, line " in lieu of exclusiveley, read : exclusively. " line 20, in lieu of cover, read : can cover. " line " in lieu of thes, read : this. " line 28, in lieu of tranquillity, read : the tranquil^ lity. " line 30, in lieu of On, read : The 60, line 1, in lieu of Bingham, read : Jfarwood. 64, line 6, in lieu oi terns, read : terms. " line 27, in lieu of grand, read : guiding. INDEX. Page. Preliminary remarks 1 e 1st. Division 7 e 2nd. Division 9 e 3rd. Division 49 e Mill Banality 54 e Droit de Relief » 58 e o It OPINION a? THK MOIVORABLE JUDGE BADGLEY. To arrive at a satisfactory determination of our present in- vestigation, which involves a variety of usages, rights and duties, extending from the earJy settlement of Canada to the present time and, applying to settlers of two distinct national origins, and which presents different views and aspects at different periods, obviously demands something more than die mere collection and collocation of doctrinal or judicial authorities, and necessarjjy requires a close examination and consideration of no small portion of our provincial history ■as well before as after the Cession of Canada to Great Britain by the Treaty of 1763. The discovery and subsequent occupation of Canada by French adventurers necessarily subjected the country to the ■domination of France, and to the public laws of that King- dom, as a part of the Royal Domain, which embraced not «3nly Canada proper, but also, from an early period, the whole of Acadia, which with Canada was then designated New- France, la Nouvelle France. From the middle of the sixteenth centuiy, when Cartier explored the river Saint-Lawrence, until the early part of the succeeding century, no permanent French settlements had been established in the country. Various attempts had been made with little positive success, but the temptation offered by the trade in furs and skins of wild animals was irresis- tible, and in consequence, early in the seventeenth century, the combination of commercial enterprize with the spirit of foreign adventure then pervading civilized Europe, led to the permanent occupation of the country, under the direction 2f of Champlain, at his second voyage in 1608 ; thence fom'^ard the attention of the French Monarchs was favourably direct- ed to the only Colony for some lime held by France, whilst the fur trade itself and the profits proceeding from it, created in that Kingdom a lively interest respecting its settlement and progress. The Royal desire for the prosperity of the country, was much thwarted by the great European contests, in which France was so constantly engaged during the seven- teenth and eighteenth centuries, whilst a variety of local causes combined together to retard the increase of the popu- lation and to prevent the growth of the Colony, during the entire period of its connection with the French empire. Colonization was evidently not the object contemplated by the early adventurers to the Colony ; their chief induce- ment for remaining abroad was connected more or less in- timately with the trade to which allusion has been made, and which was conducted, from the first, not by individual en- terprize, but by associated companies to whom a monopoly was granted, and by whom that trade and its increase were considered paramount to every public or patriotic conside- ration. It is recorded in the Preamble to the Royal Charter incor- porating the Company of the Hundred Associates in 1627, that " only one habitation existed in the Colony, wherein forty " or fifty persons were collected mo^e for commercial purposes " than for the King's advantage, that the cultivation of the " land had been so little encouraged that these persons were " supported by supplies from France, and that they would have " perished had the annual arrivals from France been delayed " for a month beyond their usual period. 75 The accredited French records demonstrate that in 1666 the population of Canada had reached to 3,418 souls, which had increased to 9,400 in 1679, in 1719 it was 22,530^ 37,152 in 1734 and at the conquest in 1759-1760, the esti- mated population was about 60,000 in the whole Si Until the year 1627, when the Charter grant was executed in favor of the Company of the Hundred Associates, the his- tory of the Colony exhibits frequent disastrous and un- successful attempts at settlement, whilst, at the same time, the most extensive and arbitrary powers were confided to a succession of Governors appointed to administer what was in fact a wilderness, tenanted solely by roving tribes of Savages who acknowledged no subjection to French autho- rity, but who, it was believed, might be induced or at worst compelled to yield to French power. From Roberval and de la Roche, the latter authorized by his commission to '' engage in the ports of France such vessels, captains and " seamen as he might require ; to raise troops, make war and ••' build cities in his Vice Royalty, to make and promulgate " laws, with power to enforce them ; to grant lands to gentle- " men with the titles of y?e/i', seigneuries^ barnnnies^ comtes, " &c., attached to the grants" ; through Chauvin who secured for himself the entire monopoly of the fur trade of the Colony ; de Chaste who first induced Champlain to accompany his expedition to America ; down to de Monta who brought out Champlain a second time, and who was appointed Governor and Lieutenant, by whom Quebec was founded in 1608, when the settlement of Canada may be considered to have* taken its rise, all were more interested in the success of their trading adventures than in the colonization of the country. The powers delegated to those officers of a despotic cha- racter indeed, whether executive, administrative or judicial, were all united in one hand, and, although better fitted for an old established and populous Colony than for an infant set- tlement, may nevertheless have been justified by the cir- cumstances of the time and the state of the country ; they were however continued until the grant of 1627, and some of the most important of them even long beyond that period. The terms of Champlain's commission as given by Garneau in his 1st vol. Histoire du Canada^ p. 127, are : " En paix, repos, tranquillite y commander tant par mer " que par terre ; ordonner, decider et executer tout ce que 4i " vous jugerez se devoir et pouvoir faire pour maintenir, " garder et conserver les dits Jieux sous notre puissance et " autorite par les formes, voies et moyens prescrits par nos " Ordonnances. Et pour y avoir ogard avec nous, com- " mettre, etablir et constituer tous officiers tant es affaires " de la guerre que de la justice et police pour la premiere " fois, et de la en avant nous les nommer et presenter pour '' en etre par nous dispose, et donner des lettres, titres et " provisions tels qu'ils seront necessaires. Et selon les oc- " currences des affaires, vous-meme avec I'avis de gens " prudents et capables, prescrire sous notre bon plaisir des " lois, statuts et ordonnances, autant qu'il se pourra, con- " formes aux notres, notamment es choses et matieres aux- " quelles n'est pourvu par icelles." It has been well observed by Garneauthat in the exercise of these powers : " les Gouverneurs n'avaient pour temperer leur *' volonte que les avis d'un conseil de leur choix et qu'ils " n'etaient pas tenus de suivre. Ce systeme avait pen d'in- " convenients dans les commencements parce que la plupart *' des planteurs etaient aux gages d'un Gouverneur ou d'une " Compagnie sous les auspices desquels se formait I'etablis- " sement." The last Canadian Company established previous to that of the Hundred Associates was formed by Champlain in 1611, actually for trading purposes but ostensibly for the co- lonization of the Colony. Its existence was limited to a period of fifteen years, and to promote its success and afford it protection, it was placed under princely patronage, first, that of a Bourbon, the Comte de Soissons, who was succee- ded by the prince de Conde, who afterwards ceded his patronage to the Duke de Montmorency for 11,000 ecus, and which was finally ended in the hands of the Duke de Ventadour in 1626. The patronage of these eminent noble- men was evidently obtained for the support of the commer- cial rather than of the colonizing purposes of the Company, and the price paid by the Duke de Montmorency shews that 6i the adventure was considered extremely lucrative. " But " even to the last moment, complaints were made to the " Duke de Ventadour of the indifference of the Company " to the interests of the Colony, which was represented as " only requiring a little assistance to flourish and prosper." It was under these last circumstances that Cardinal de Richelieu projected the Company of the Hundred Asso- ciates, to whom he proposed, in the King's name, a proprietary grant of New France under the very favourable and ex- tensive terms and conditions contained in the instrument establishing the Company. The Associates, among other conditions, were required to establish a joint stock Com- pany for effecting their enterprize, to be governed by articles of association which were afterwards approved by Riche- lieu, and the Company was named " The Company of New France." Their capital was 300,000 livres, £12,500 0, divided into 100 shares of 3,000 livres or £125 each, of which 1000 livres or £41 13 4 was to be payable within the year, and the balance by instalments at the call of the directors. The instruments and articles of association were fully ratified and approved by the Royal letters patent of 6 May, 1628, and the Company thereby became fully con- stituted. The complaint against the last, or Champlain's Company of Canada, as stated in the Charter of 1627, " that they had " so little power or inclination to settle and cultivate the " country, that during the fifteen years of their charter ex- " istence, they proposed to carry over only fifteen men, and " that even at that time, after they had existed for some years, " that they had made no attempt or preparation whatever to " perform their obligations," was endeavoured to be removed by the new Company who pledged themselves " to employ " their best efforts to settle New France called Canada, " and among other obligations " engaged to transport to Ca- " nada in 1628 two or three hundred mechanics, and to in- " crease the number of settlers there to 4000 of both sexes 6i " during the course of the following years to expire in 1643, " supporting them for three years after their arrival, and after " that time settling them on cleared lands with sufficient " w^heat for seed and their support until the next harvest, " or otherwise providing- for them in such manner that they " might by their own industry and labour support them- " selves in the country." The Royal grant was a full proprietory conveyance to the Company, their heirs and assigns for ever, in full property, justice and lordship, enperpetuite, en pleine propriete, justice et seigneurie of the fort and habitation of Quebec, together with the entire country of New France called Canada, including rivers, lands, mines and minerals, ports and havens, streams, rivulets, ponds and islands great and small, and generally the whole extent of the country in length and breadth, &c., &c., together with a variety of rights, exemptions and privileges, of which the most important to the Company, was the greatly coveted monopoly of the trade of the Country. The Company of the Hundred Associates protracted a languid and unprofitable existence until 1663, when, becom- ing aware of the King's determination to revoke their grant, they wisely forestalled the Royal intention by a voluntary surrender to His Majesty of all their proprie- tary and domanial rights, titles and property, all of which were formally reunited to the Royal demesne by the Letters Patent of Acceptance of March 1663, and among the motives therein stated, is the following : " that seeing the long period of time in which the company have been in possession of the Country, the King learned with regret that not only the number of its inhabitants was small, but also that even they were daily exposed to be driven away by the attacks of the Iroquois." In May, 1664, Letters Patent issued, establishing a second great proprietory Company called " the Company of the 7 I West Indies," to whom were granted all the French pos- sessions in Africa, in New France, and the West Indies, with the monopoly of the trade in those countries and a variety of powers and privileges ; but this Company was even less successful than its predecessor, and after an existence of about ten years, their Charter was revoked in 1674, and all the territory granted to them was reunited to the King's de- mesne, to be thereafter governed and administered like the other fonds et domaine de la Couronne. Monsieur Petit, in his Histoire des Colonies Frangaises en Amerique^ observes : " The object of the establishment '* of these Colonies was the creation of means for the for- *' mation and extension of national commerce, and every kind *' of encouragement and support Avas extended to the Com- " panies by the state. That of 1664 was unable to realize " these views, and the King abolished that Company by his " Edict of December, 1674, which reunited to his demesne *' all the granted lands and countries, to be governed there- " after like the other Crown domaines, the domanial rights " and dues were to be collected and received at the times " and in the manner that the King should direct." From that time, Canada ceased to be a proprietory and became a Royal Colony which continued as long as the French dominion existed in the country. In the interval of time between 1626 and 1674, the French King had not only established those two important com- mercial proprietory corporations intimately connected with the Colony, but had ceded and conveyed to them the entire country ; and after their abolition, he himself continued to exercise the same domanial right of appropriation, by special grants to individuals, of greater or less extent of territory in the Colony. The Royal right to make these grants cannot be question- ed, because, according to the generally acknowledged doc- line of public law, at that time generally understood by the 8« powers of Europe, the savage occupants of the conntry were- not considered to have any property in the soil which they hunted over, and the absolute proprietary and domanial rights were held to belong to the European nation by which the country was first discovered and subsequently occupied. These discoveries, thereforeby, French subjects, whether act- ing or not under the authority of the Government of France^ Were admitted as of right to have been made for the benefit of the nation ; the King was the acknowledged legitimate organ by whom alone the public demesne could be disposed of, because the discovered territory was held by him in his public capacity as the national representative, and therefore in him alone resided the right to grant vacant lands, as an exclusive branch of the prerogative. But in making all such grants, the necessary subjection of the granted territory, as well as the national allegiance of the grantee to the French Crown, were of paramount importance, and hence the King^s power to grant was limited by the public law of the Kingdom in this respect, which required the grant itself to contain a stipulation by which the depen- dence upon and connection with the parent state should be se- cured, not simply as a mere condition of state policy, but. as a conventional obligation reciprocally binding upon grantor and grantee. It is observed by Henrion de Pansey, in the first volume of his Dissertations Feodales, p. 22, under the head " Aleu^^^ " that the Crown demesne was alienable, but not without re- '• servation of the directe, the immediate demesne," and after citing Chopin, Traile du Domaine^ in support of his prin- ciple, he thus proceeds : " The authors referred to by Cho- " pin were of opinion that if the King had power to alienate " portions of the demesne, he could do so only by title of in- *' feodation. The laws in relation to such alienations required " that the grants should contain the express reservation of the " immediate demesne, propriele directe^ (see second Edict of '• 1566 and the Royal Declaration of 8 April, 1672) ; tke 9 i stipulation was in the following terms : to hold the g;rant of the Croum in full Jief^ and to render fealty and homage " to Usj with payment of a gold croivn^ comme redeva?icc, as a ''^ recognitive duty of dependence^ SfC. This is still our " public law, confirmed by written laws and by an usage " long anterior to them. The King cannot alienate his "■ demesne without this reservation, and if that stipulation " shall have been omitted in the deed of alienation, it must. " be supplied. The rule of law nulle terre sans Seignieur^ " no land without a lord or owner, is the legal rule wherever " the municipal laws are not in express opposition to it, '' wherever the customary laws have not rejected it, and " wherever dispositions of law have not established the " existence of the opposite maxim, " Nul Seigneur sans " terre.^^ See also Guyot, Traite des Fiefs, 1 vol. p. 440. Freminville, Praticien des Terriers, 4 voL p. 449, and others^ who all sustain Henrion de Pansey's position. The form of the Royal Grant in this respect was govern- ed by the principles of the public policy of France above ad- verted to, for the purpose of maintaining the connection of the granted territory with the Kingdom, whilst at the same time New France, as a French Colony, and considered as a portion of the Royal demesne, became subject to the public general law of France, as has been well observed by Petit : — " The public demesne of countries discovered by France, or " united to her by treaty, become of right an integral portion " of the French public demesne, and the legislative disposi- " tions of those countries posterior to their union also be- " come subject to the domanial legislation of France, and "• to that legislation of general interest and public policy "^ which is fundamental to the French State." The proprietory grants of 1627 and 1664, after reciting the conveyance to the Companies of the granted country, to its full extent and contents, for ever, in full property, lordship and justice, settled the consideration of the grant, at a reserva- tion to the grantor himself and his successors, Kings of 10 i France, in recognition of Sovereingty and in conformity with the above stated requirements of the public law, of the mere fealty and homage, ressort de la foi et honunage, to be per- formed by the grantees upon each change of Sovereign together with payment of a gold crown. Three grants of little importance appear to have been made by Champlain's Company previous to the Charter of the Hundred Associates ; several were made by the great proprietory Companies during their existence, to which a very considerable addition was subsequently made by the Royal Administration under the authority of the King, until the Cession : by these grants the Colony was parcelled out into tenancies of greater or less extent of territory, covering the surface of the country from the mouth of the St. Lawrence to beyond Detroit in length, and only limited in breadth to the south by the British settlements. These various grants with a small number made early under the British dominion, are necessarily at the bot- tom of the matter upon which this Tribunal is excep- tionally called upon to determine, and involve a considera- tion, not only of the technical language of the grants themselves, the extent and nature of the property granted, with its tenure, incidents and rights, but also of the laws and institutions of that part of France from which the settlers chiefly emigrated or proceeded, the municipal law itself of the Colony in connection with the grants, their ob- ject and intent, together with the contemporaneous construc- tion given to their terms, conditions and stipulations, and the usages in connection with them, during the long period of their existence and recognition by the judicature and legislature of the Colony, French and British, Imperial and Canadian. The apparently wide scope here presented will, notwith- standing, occupy but short space ; a large mass of detail lit having been collected together and explained by the Pre- sident of the Tribunal, requires no repetition, and the result only need be noted, whilst the remaining portion of the subject matter will be disposed of a-s succinctly as its nature and importance will admit, premising however that mere law and legal controversy have comparatively but little connection with the explanation or determination of the points of difficulty submitted to us. It was in anticipation of the necessity for this examina- tion, that the previous remarks upon the early administrative and proprietory history of Canada have been made. The principle of general public law already adverted to, which appropriated newly discovered and savage coun- tries to the nation whose subjects first possessed and occupied them, and authorized the national representative to dispose of them as the patrimony of the nation and as part of the national demesne, may be assumed as an incontrovertible and acknowledged principle of French law. The extent and nature of the grant, subject to the limitations of that law, were restricted only by the Royal will and the object contemplated, namely the settlement of the country, subsi- diary nevertheless to the commercial advantages, and the increase of funds in the national Exchequer from the pos- session of the colony ; hence the grants of 1627 and 1664 were in full and absolute property of the entire territory in- cluded within their terms, with unlimited authority and right to allocate and distribute the country in such quan- tities, to such persons, and upon such terms as the Com- panies should think proper, and most for their own advan- tage, and with power moreover to ennoble the grants with titular dignities, subject to the King's confirmation ; these great proprietory grants distinctly gave the Companies un- limited power of alienating their lands in such manner as they pleased ; and the charter of 1664 contained the power, in express terms, either to sell and dispose of the lands, or to infeodate them at such rent, charges and seigniorial dues as 12 i the Company should think proper, but without directing any particular mode for the purpose. These Royal grants were in both instances full and entire conveyances of the property of the grant by the King to the Companies with the rights therein, entirely unlimited and unrestricted by law either national or municipal ; and the subsequent Royal grants were not only equally full and complete convey- ances of property, but invariably abstained from specifying the mode of their sub-distribution. Sub-infeodation was not compulsory in any instance, and was adopted only when the grantee could not himself improve his grant. Furgole, Treatise of Franc-Alteu, p. 59, observes : " It is true that " the King is the Sovereign lord throughout his Kingdom in " jurisdiction and power which are rights united with and " inseparable from the Monarchy. But feudal lordship is " not a right of Sovereignty ; it is derived from another " source, that is to say, from the convention and the con- " veyance of lands a litre de fief^ to effect M^iich the grantor " must necessarily have the possession of them, because the " fief^ which conveys the useful demesne to the grantee, but " reserves the immediate demesne to the lord, cannot ope- " rate that effect unless the full property be in the grantor " at the time of the sfrant." is' The Custom of Paris itself has no provision for any compulsory grant. Its provisions, in perspicacious and intel- ligible language, authorize alienations by any form of con- tract, even by sales, in fact par tous les contrats qui trans- portent la propriele ; but fealty and somerecognilive render must be retained ; beyond this there is no legal interference with the grantee whether Seignior or tenant. The sub-grants made by the chartered Companies and the very numerous Royal additions, were uniformly proprie- tory grants of a certain realty in full property, with other rights attached, and subject to fealty and recognitive duties, as re- quired by the French public law ; they were in the common form either a titre de fief or en censive^ in the former held 13 ^ by the stipulated recognitive duties of homage and render, and in the latter at a rent charge or service wilh such spe- cial stipulations and conditions in both cases, as the Com- panies or the King might consider fit to impose, and which were accepted by the grantee, but in no manner limited or cxjntroilcd the proprietory effect of the grant itself. These grants offer no peculiarity for remark, if the cir- cumstances of the time at the progressive periods of the grants and the nature of the granted Country be considered. In connection with the increasing desire in civilized and maritime Europe for the extension of foreign commerce and the consequently anticipated enrichment of the Nation, a so- licitude for colonization became generally prevalent and strongly manifested itself in France as well as in other Eu- ropean States early in the seventeenth Century. However desirous therefore the French Government from the time of Richelieu downwards, may have been to augment the commercial wealth of the Nation, French Statesmen ex- hibited a great political anxiety to extend the Imperial possessions of France by means of foreign Colonies. The language employed in the public documents by which the proprietory Companies were established and revoked, as well as that used in the ArrSts de retranchement or orders of revocation registered in Canada of grants of Canadian territory and the expressed or broadly implied condition of settlement to be found in the several grants themselves pre- vent all doubt upon the subject, whilst the futility of the desire is apparent in the frequent revocation of royal grants, the slowly increasing population of the Colony from natural causes alone, and the acknowledged inability of France amidst her European contests to furnish settlers, except of the military class ordered out for the military pro- tection of the colony, or of a description of forced emigrants, who were sent out as a relief to the mother Country rather than as an advantage or assistance to the Colony in the way of settlement. 14* The settlement of the Country became however at last from political motives the paramount consideration in the Royal mind, and to foster and encourage that important object, grants were purposely lavished under the persuasion that private interest and enterprize would more readily effect the purpose, than the efforts of the Government under the con- trol and superintendance of its agents ; the Country was in consequence parcelled out by grants evidently in many in- stances beyond the means and capacity of the grantees, as will be apparent from the fact that up to 1667, upwards of seventy grants had been made covering more than of 40,000 superficial miles, and necessarily spreading over a much more extended surface from the grants not being contiguous, whilst at that same period the entire population of the Co- lony did not reach 4,000 souls of whom the largest portion were in Quebec, and only 11,000 arpents^ acres of land, were under cultivation. The same lavish system of land grants was continued during the entire period of the French domi- nion, with this difference only, that the relative dispropor- tion between the extent of the grants and the amount of the population was greater after than before the year last men- tioned. These proprietory sub-grants as well as the subsequent Royal grants invariably professed to convey the full and un- limited property in the land or realty described in them by the usual formula en ioute propriele for ever, to the grantee, his heirs and assigns, with absolute power of disposal and distribution of the estate granted, but subject to the special condition of settlement and improvement expressed by another formula de lenir feu et lieu par lui et ses tenaneierSy or words of like import ; the grantees however were not in the most remote degree controlled by the letter of the grant oi^ by any public or municipal law in the mode or manner of effecting the settlement, and in fact could not have been controlled, as well from the inability to procure settlers from France and the very heavy outlay required to be in- 15 i curred in bringing them across the Atlantic, as from the un- certainty of retaining their service after they had been land- ed in the Country. The grantee was therefore in fact at perfect liberty to im- prove his grant by his own hands, by the labor of his ser- vants, by leasehold tenants, by subgrants or mode of any other alienation which he should deem best for his own interest, but always at the same time liable to the special penalty of for feiture of the grant upon failure to accomplish the condi- tion of improvement : in truth no revocation of a Royal grant was ever made by reason of any other cause or breach of condition on the part of the grantee. French jurists concur in considering such grants as conveyances of the full proprietory and domanial rights in and over the property conveyed. Merlin Repertoire de Jurisprudence^ vo. Domaine^ p. 755, stiles it " an incom- mutable property," Guyot, Traite des Fiejs^ 1 vol. p. 139, and Herve, Matieres Feodales et Censi/elles, concur with Merlin, Herve observing " when I can give, sell or alienate " my property in any way, &c., in a word dispose of it as " I please, it must be admitted that I possess the jus utendi et " abutendi in which true property consists." It is true that these authorities apply to holders of property in France, where titles could not at all times be produced, and pres- cription was more frequently invoked than title, yet how much more is the right of property assured in this Country, where the Royal right to grant and the grantee's capacity to receive were alike unquestionable and visible in existing deeds, and where nothing in the language of the grant or of the law of the land was found to limit the absolute property in the estate conveyed. The grants became of course technically synallagmatical contracts between the King and his grantee. Herve, 1 vol, p. 386, says : " The first fundamental principle is tiiat the " grant enjief is a perfect synallagmatical contract ; indeed 16 i ••' the lord's obligation, under the contract, to give to the *' Vassal full enjoyment of the object granted, in the man- " ner agreed upon, and the Vassal's obligation to maintain *^ a constantly subsisting acknowledgment of the lord are " two essentially correlative obligations and equally princi- " pal which cannot subsist independent of each other and " from which a direct action results to each party." Such a contract necessarily became subject to the municipal law of tlie Colony for its construction and enforcement in so far as that law could be rendered applicable ; it therefore be- comes necessary to ascertain the nature and extent of that law and its applicability to the contractual grants them- selves. Until the creation of the Superiour Council of Quebec in 1663, the only acknowledged law of the Colony was to be found in the Royal Instructions contained in the Commissions of the Governors " to make and prescribe Laws and Ordi- " nances subject to the King's pleasure and as conformable •' as might be with existing Royal Laws and Ordinances in " matters and things not already regulated by the latter." Charlevoix, Histoire du Canada^ 2 vol. p. 135, says: " Until " 1663, no Court of Justice could properly be said to exist '' in Canada ; the Governors judged upon differences sub- " mitted to them in a sufficiently arbitrary manner, ap- " peals from their decisions were not thought of, their Arrets " or judgments were generally rendered only after arbitra- " tion had been ineffectually attempted, &c., &c." "In 1640 " a Great Seneschal of New France was appointed, and a " jurisdiction established at Three Rivers for this military " magistrate, magislrat de Vepee, whose functions however " were subordinate to the powers of the Governors, the latter " invariably retaining in their own hands the administra- " tion of justice whenever application was directly made to them and which very frequently occurred." u This system continued until the establishment of the Su- periour Council of Quebec in 1663, composed in the first in- m stance, of the Governor, ihe Bishop and five Councillors, selected by the Governor and Bishop ; by a subsequent Royal Arrets the Intendant and five other Councillors, were added to the original Council. The jurisdiction of the Council was supreme and final in effect in the Colony in all matters civil and criminal, but not as a Court of original jurisdiction. The Council were required to judge according to the Laws and Ordinances of the Kingdom, and to adapt its proceedings as closely as possible to the form a?id manner practised and observed in our Court and parliament of Paris: the King reserving the power and right to himself to abrogate or alter existing laws or to enact such others as he might consider most advantageous for the inhabitants of the Country : whereupon, Charlevoix descants upon the Royal anxiety to secure a prompt and ready administration of justice and remarks that " the Superiour " Councils of Martinique, Saint Domingo and Louisiana " were formed on the model of that of Quebec, but that all " were Military Councils : tous ces Conseils sont d^epee.'''' They could scarcely be otherwise with a Military Governor at their head, whose influence was paramount. The enactment of police laws for general as well as spe- cial purposes was first intrusted to the Intendant Talon in 1672. In the proprietory Charter gi-ant of 1664, the King ordered that the Judges who were to be appointed, should decide according to the Laws and Ordinances of the Kingdom, and that the judicial officers should act according to the Custom of the Prevote de ^aris, according to which Custom the inha- bitants might contract with each other, ivithout admitting the legal existence in the Colony of any other French Custom in order to insure uniformity. The original language employed •is: " Zei" Juges a jiiger suivant les lois et Ordonnances du " Royanmc et les Officiers suivreet se conformer a la Coutume *' de la Prevote et Vicomte de Paris suivant laquelle les ha- 18 ^ " bitanls pourront contrader mns que Vo7i y puisse introduire " aucune autre Coutume pour eviter la diversite.''^ Until 1663 therefore, the Colony was without civil tribu- nals or municipal law and was subjected to the arbitrary power of the Governor or of the Military Seneschal at Three Rivers, presumably subject to the influence of so much of the public general law of France as accompanied the French emigrant and was applicable to his condition in the wilder- ness of Canada. By the Ordinance establishing the Supe- riouT Council, the Laws and Ordinances of France for the first time, became the legal texts for the Council and the Judges, whilst the Custom of Paris was declared to be the only law for the regulation and enforcement of contracts entered into by the inhabitants with each other. This last provision ■vv^as evidently introduced to prevent the continuance of the Norman Custom whicli, up to that time, had probably been generally followed, the Normans having been the first settlers and in consequence till then the appellate juris- diction reached to Rouen and not to Paris. The Custom of Paris was not introduced in any more formal or explicit manner, or by any other public document or act of Legislative power, hence the Municipal law of the Colony from 1664, was composed of the public laws and Ordinances of France, in so far as they applied to the Country, and of so much of the Custom of Paris as regulated the contracts of the inhabitants, together with the local legislation established for and in the Colony by the Crown and its Executive Officers to whom that power was de- legated. The commonly received doctrine that colonists are ac- companied to their new settlements by the law of the parent state, in so far as it applies to their condition in an infant Colony is scarcely correct in its application to France at that period, with its various provincial Customs and local laws ; indeed France possessed no other established and 19 i settled Colony than Canada until many years after Cham- plain's settlement at Quebec in 1608, and had no colonial legal system for such an event : after 1663, the Custom of Paris being set out in terms in the subsequent Royal Co- lonial or charter grants gave occasion to French jurists to affirm the maxim, that the Custom of Paris was exclusive Colonial law ; but that maxim is not to be found in any author until long after 1663, and its authority has always been supported by a reference to public documents bearing date after that year. See 1 Ancien Denizart, vol. Colonies Frangatses, p. 502. The establishment of Colonies by Royal suiferance or grant in the first instance, with subjection of the emigrants to the delegated power contained in the Governor's Com- niission, naturally rendered them dependent on the Royal will and the public laws of the State without consideration of the particular Customary laws of the parent French pro- vince from wdience the settler had proceeded. The subsequent introduction into the Colony of any one French provincial custom by the mere effect of the Royal will gave it force of paramount local law to the extent of its express establish- ment, and to that extent alone it became municipal law; hence the Custom of Paris introduced as above was Muni- cipal only in so far as it regulated contracts among the Co- lonial inhabitants. It must be evident therefore from the foregoing that the so called feudal tenure of the Paris Custom was not and could not have been established in the Country by the Edict of Crea- ation of the Superior Council of Quebec, nor by the provi- sions of the Proprietory Grant of 1664; the tenure of the estate granted is in fact a creature of the grant alone and by that in the first instance imposed upon the grantee to the extent of its obligations : this is in strict conformity wdth the well established rule of feodal law tenor est qui legem dat fimdoy it is the tenor of the grant which regulates its effect and extent : these were to be found in the stipulation 20 i of fealty, the recognition of and obligation to the dues and duties expressed in the grant as mere conventional stipulations and conditions, but they did not introduce with them the rights, obligations and incidents of the law of sei- gniories. Fiefs et Censives, of the Custom of Paris or of the Common law of France in relation to that description of property, except in so far as any of these laws had applica- tion to the terms and conditions expressed or legally implied in the grant. This is strikingly exemplified in the case of Louisiana, which at first formed part of the Government of Canada. The Letters patent of 1712 granting Louisiana to a pro- prietoiy Commercial monopoly through the agency of the Sieur Crozat expressly provides, that " Our Edicts, Ordinances " and Customs and the usages of the Custom of Paris shall " be observed as the Laws and Ordinances of that Country ;" and by the subsequent Royal Grant and Conveyance of that Country in 1717, to the Compagnie cV Occident^ similar proprietory rights over the Country are granted and similar language employed as in the proprietory Canadian Grants of 1627 and 1664 above mentioned, namely in full property, justice and lordship, " ioute proprieU^ justice et seigneurie^'"' w^ith the usual recognitive reservations of fealty and a gold crown : the game power is given to appoint Judges and officers in precisely the same language as that employed in the Canadian grants with the same requirement in the former to judge accordingto the laws and Ordinances of the Kingdom, and in the latter to conform themselves to the practice of the Custom of Paris, according to which the inhabitants may contract, sans que Von puisse introduire aucune autre cou- tume pour eviter la diversite.^^ No grants could be more . similar in language and conditions, yet notwithstanding this peculiarly striking similarity, the tenure law of the Paris Custom never was introduced into Louisiana and never formed a part of its municipal system. Moreover, Petit states that the Superiour Councils in the 2li West Indian possessions, judged it necessary to cause the Custom of Paris to be registered there in extenso, bodily, in order to give it full effect, yet the lands were held by an allodial tenure free from seigniorial rights and dues, although those possessions were originally granted in the Charter of 1664 above referred to en toute justice^ propriete et seigneurie^ ivith the same infeodation as Canada^ and subject to the same judicial system. The cause of the difference of tenure between Canada and those countries in this respect is manifest, and must be sought not alone in the Royal grants, but in the subsequent sub-grants which, in Canada, generally contained the feudal stipulations of censual grants known to the Custom of Paris, whilst the sub-grants to the terre tenants in Louisiana and the West Indian Islands were allodial ignoring altogether the feudal tenure of the Canadian concessions. Upon this part of the subject an examination of the British proprietory grants of the American possessions, some of them mad* at about the period of the French grants, will shew the similarity of the nature and extent of the grants made by the two Royal National representative the con- currence in the extent of the grant, full property and lordship and the recognitive obligations of fealty and render, the Spanish grants were also similar in these particulars ; yet in none did feudality as a tenure follow the original grant. Mr. Williams, Solicitor General of British Canada in 1790, and afterwards Chief Justice of the Province characterized the . matter in the following terms, in his report to the Executive Council of the Province in that year, upon the subject then mooted of the abolition of the feudal tenure : " There appears to be engrafted on the Royal grants a " fiction of feudal tenure drawing after it the servile " appendages of alienation fines. Quint &c., upon the " tenure en fief and lods et rentes and the servitude of banalite upon that en censive^'' corroborating the origin of the tenure in the grant, but by error ascribing to a fiction. 22 i what in so far as it was stipulated, was a convention as regards the fines, and what was positively established by Royal Legislation, as will hereafter be shewn, as regards the Banalite' The jurists are precise upon this point of the establish- ment of the tenure by title alone, and their opinions are thus summed up by an eminent modern French jurist Cham- pionniere in his Treatise des Eaux Courantes^ p. 190, in whose work the citations will be found and the principle commented upon at length. " The fief is a contract having " like all other contracts substantial, natural and accidental " conditions ; the entirety of these conditions forms the " law of the fief the law that governs it, for conventions " are naturally the law of the contracting parties. Hence " the true text of the feudal law is the Deed constituting the '"'' fief its spirit is the will of the contracting parties." The determinate extent of the territory granted which formed the property of the grantee, and his proprietory right in it with the legal qualifications and characteristics, condi- tions and stipulations attached to the grant, as the law of the parties, compose the fief and form but one and the same whole. Herve, 1st vol. pp. 377, 595, says : " It is for tliis " whole ensemble determinately, collectively and according to " its state and condition at the date of the contract, that the " Seignior must be acknowledged. . . . The nature and extent " of the seigniory can only be known and appreciated there- " fore by the terms of the title or grant. The Custom is " powerless and inapplicable in the presence of titles:. the " most respected law for all parties is that voluntarily made " by themselves ; this very simple rule of good sense is " laid down by Dumonlin and d'Argentre as an undoubted " legal maxim." Ferriere, Commentaire sur la Coutume de Paris ^ Ed. i^ Fol., pp.99, 100, observes : '•'■ Fiefs were " contracts made by powerful lords who conveyed their " lands, under certain conditions, to individuals whom they " desired to gratify; wherefore the powers of Seigniors and 23 z ^ the duties of Vassals are those which they have imposed " upon each other and upon which they have agreed." And Guyot, 6 vol., p. 692, observes : " The fief is formed by the " will of the grantor who grants as he thinks proper one or " more estates contiguous to or distant from each other, and " upon his own terms, which become binding by the " acceptance of the grantee ; this reciprocal consent once " consummated forms the fief, or feudal contract, truly " synallagmatical, which neither of the parties can change, " increase or diminish without the consent of the other." It is assumed therefore as a sound deduction of common sense and of law, that Canadian feodality exists only in the express terms, conditions and stipulations of the contractual grant and in its acknowledged legal incidents ; whatever was beyond these was conventional not feodal, and thus the feudality of the Custom of Paris, with all its legal or cus- tomary incidents established in France within the Prevote of that custom, except as they are brought within the extent of the terms of the grant and its legal incidents as above stated, are inapplicable in Canada. The mystification which has arisen in the discussions in Canada upon this subject, had its origin in the absence of all advertence to this essential element of the nature and extent of Canadian feudality, and in the search for it in the Articles of the Custom of Paris and the opinions of the host of commentators, upon that and all the other feudal Customs of France, which were examined and discussed in litigated forensic questions in Canada : this has been not a little aided by the absurd supposition that Louis the 14th con- templated the formation in Canada, with a population of one person to 20 or 30 square miles, of a system of feodality which was already dying out in France itself, and that the words fief and seigneurie with their magniloquent appen- dages haute, moyenne et basse justice, avec droit de chasse ct de p4che, at once and immediately converted the new made grantee into an exact imitation of the haught^^ Barons of 24 i France, whilst all the time their traite avec les Sauvag^es^ trading with the Indians, which was allowed to these terri- torial wilderness lords, was the most general and the most profitable although the least honorific part of their grant, and one which as a Bourgeois accomplishment would have been viewed v/ith little favour or respect by the Seigniors of France ; it would be the height of credulity to believe that either Louis the 15th or his successor viewed the feudal system so favourably as to desire its perpetuation in Canada alone of all the French Colonies ; a notion which no doubt sprung from the use of the terms u litre de fief et seigneurie which were merely amplificative of the property granted and did not fix the tenure, and is one of the many absurd examples offered to notice of the appliance of old world technical legal terms to new and uninhabited or at best newly settled countries or colonies. t It has been already remarked that the grantee was under no compulsory obligation to sub-grant his land ; but its ex- tent, in almost every case, was beyond his means to improve^ and this compelled him, mcdgre lui^ to secure the assistance of others for carrying out the improvement necessary for his own advantage and for preventing the revocation of his grant for a breach of the Royal condition of settlement. As previous- ly mentioned, he was uncontrolled in the mode of alienating his estate, but circumstances compelled him to select one as the most efifectual, namely that by proprietory sub-grants to parties capable and willing in their own interest to put their grants under improvement. Garneau observes : " the " Monarch made to his Civil and Military Officers and " to others of his subjects whom he desired to reward or " favour, grants of lands in the Colony extending from two " to ten leagues square. These great land holders unable,, " from their limited means or personal unfitness, them- " selves to improve their grants were under the necessity " as it were to distribute their estate among veteran soldiers " and other colonists for a perpetual rent charge called 25 i " cens et rentes.^'' Charlevoix, 5 vol. p. 160, says : " Canada " was a great forest when Frenchmen first settled there. " The grantees of seigniories were unable to improve their " grants ; they consisted of Military Officers, Gentlemen, " Religious Bodies none of whom possessed sufficient funds " to maintain and support the labourers and workmen re- " quired for the purpose. They were therefore compelled " to effect settlements by inhabitants who could advance " their own labour and money upon sub-grants before any re- " turn could be derived from their outlay. Their contracts " with their Seigniors were in consequence at a very mode- " rate rent charge, modique redevance^ and this with lods et *' ventes, fine on mutations, which added little to the means " of the Seignior, his right of toll for milling and grinding, " and the profits of his own cultivation of his own property *' rendered a seigniory of two leagues in extent in front by " almost unlimited depth, a source of little really productive " revenue in so thinly populated a country and where so " little internal commerce existed." These remarks were written by the very intelligent and instructive Jesuit in 1721. He subsequently proceeds to describe his visit to the Grand Voyer de la Nouvelle France^ the Baron of Becancourt and Seignior of Portneuf, at Portneuf, and the details which he has left are not only amusing but exceedingly instructive in this matter, as being characteristic of the state of things at that period existing in the Colony : ex uno disce omnes. " The Baron's mode of life in this desert, because there is " no other near settler, naturally recalls to mind that of the " patriarchs who did not disdain to cultivate their property " with their servants, and the Baron lives almost as fru- " gaily as they did. The profits which he derives from the " trade with the Indians, his neighbours, in the purchase of " their furs at first hand from themselves, is fully equal to all " the redevances, rents, which he might receive from tenants " to whom he might concede his lands. Hereafter he may " have tenants and will improve his position when all his 26 i " estate shall be cleared. " This visit as stated above was made in 1721, ten years after the publication oiihe Arrets of Marly which have formed a very prominent ground of discussion in the investigation before us and which will be referred to at length hereafter. From the foregoing it must be apparent, that with the uncontrolled freedom to make use of his grant as the grantee considered best for his own interest, the adoption of the bail a ctns or sub-grant with a rent reserved was a necessity not a choice, in preference to sale for a paid price, in a country without money capital and offering labour only as the means of improvement, whilst it is equally undeniable that the consideration of the sub-grant must have been subjected to some understanding or con- tractual agreement betwen the grantor and his sub-grantee. The consideration in this manner agreed upon for the con- cessions including the rent charge, of course thus matter of bargain between grantee and subgrantee or tenant became the criterion of the rate of charge on subsequent concessions or subgrants in not essentialy dissimilar circumstances, at periods ranging about the same time, for lands of similar character, in the same seigniory and locality and present- ing generally the same quality and feature, although not affecting with the same uniformity the more advantageous localities of the same seigniories or other seigniories where the grantors were uncontrolled in that respect, or who pos- sessed sufficient means themselves to accomplish their set- tlement duties without fear of forfeiture. Still however as a general rule, the very great quantity of unoccupied land offered and the very limited number of intending set- tlers or applicants for grant necessarily and constantly re- tained the rate of rent charge within extremely moderate terms until the Cession of the Country to Great Britain, from which time an entire .change took effect in the Colony. The following figures are adduced in support of that bar- gained, modicite^ moderate rent charge, shewing the. popula- tion and extent of cultivation at different distinct periods. 21 i In 1667 4312 souls with 11000, arpents under cultivation 1679 9400 " 22000 " " 1719 22000 " 48000 " " and 8000 " in prairies. 1734 37000 " 163000 arpent? in cultivation and 17000 " in. prairies., in 1721, 25000 souls, of whom 7000 in Quebec and 3000 in Montreal with 62000 arpents under prairie and cultivation giving 2 1 arpents for each soul of the entire population, or 4 arpents for each soul out of the Cities. The form of the sub-grant or concession was attractive to these intending settlers, from being in harmony with a sys- tem in operation in their mother Custom in France, whilst the consideration in the shape of an annual rent charge with particular service, placed the sub-grants within the reach of a class of settlers whose circumstances prevented the payment of a price for the land, but whose labour upon it would soon enable them to satisfy the annual rent ; hence subgrants became generally adopted as a mode of alienation and ac- quisition ; the reserved rent was technically known under the term cens et rentes and the sub grants as concessions a cens or grants in censive. This reserved rent was in effect a recognition of the sei- gniorial connection and dependence in the same manner as the render in the Royal grant, and was usually stipulated in money, grain or kind with such other charges and con- ditions as might be agreed upon by the parties. Seignior and tenant, as the consideration of the grant, and which became in fact the representative of the settled value of the conces- sion ; it thus evidenced a conventional bargain and agreement in which the grantor must be supposed in his own interest to have stipulated the highest rate he could obtain, whilst the tenant in his own interest kept it as low as his means would warrant. On the one hand, the Seignior not absolutely nor by law compelled to sub-grant, exercised his full proprie- tory right over his property in settling his own estate a$ 28 z much as possible by fixing his own terms and conditions upon his sub-grants, whilst on the other hand, the settler having no claim or right to participate absolutely in the royal bounty to the Seignior or to compel the latter to parcel out the land for his advantage or occupation alone, was con- tent to take his sub-grant upon the best terms he could ob- tain it for : self interest on both sides wisely left to work out its legitimate consequences, acting and acted upon by a scanty population or small demand on the one hand and an immense quantity of land offered for settlement, an over abundant supply on the other, exhibited the result that must have been anticipated, a moderate rent charge in the early concessions, and the same self interest continuing to operate at all subsequent times continued to make the consideration of the concession a matter of bargain bet jveen grantor and grantee, subject to interference only in the special exceptional case provided against by the first Arrit of 1711, the refusal of a Seignior to grant a land to an intending and applying tenant, and which, singular to say, has in no instance ever been rendered operative since the promulgation of that Arr^t. The concession so made was necessarily a synallag- matical contract between the grantor and grantee, or to use the common terms. Seignior and Censitaire^ Lord and tenant, and conveyed an estate in as full property and right to the latter and as incommutable in its nature as the Royal grant to the Seignior himself ; its conditions were expressed in the terms of the concession and in the legal incidents necessarily flowing from them; to the extent of these condi- tions and incidents it was of feudal nature " tenor estqui legem dat fundo^'' " ainsi la veritable loi censuelle c'est facte constitutif de la censive, son esprit est la volonte des contract a^its^'''' hence Mr. Solicitor General Smith's feudal fiction of tenure in the concession, as between Seignior and tenant, is to be found in the grant alone, and not in the provisions of the law either customary or municipal ; this principle appears to have been fully adopted in the Seigniorial Act of 1854 itself, 29 i which provides in the 6th Section of the 5th Clause, that " in deternmiing the seigniorial charges to which each lan^ is subject^ the Commissioyier shall be guided by the title of the owner from the Seignior^ 4*6-." The same desire for settlement evinced in the condition of the Royal grant to the Seignior, was expressly extended to his sub-grants and his Censitaires who were, by theRoyal condition in the original grant, required to agree de tenir feu et lieu upon their concessions on pain of forfeiture and revo- cation of the concession, and hence this stipulation has made part of the conventional contractual undertaking between Censitaires and Seignior. The distinctive rights between the Sovereign the dominant Seignior and the Seignior his immediate grantee, and between the latter and his sub-grantee the Censitaire^ were plain and apparent and thus the exact proprietory rights of each became full and absolute. The ancient derivations and speculative notions upon the origin of feudal property were at that time abandoned and replaced in France by a modern and more common sense system. Herve, 5th vol. pp. 75, 89, says that the old technicalities, droite seigneurie immediate seigniory, appropriated to the Seigniors, and the old prohibitions imposed upon the tenants no longer applied, and a direct proprietory right existed in each under his title. Championniere, p. 146, thus explains the matter and sums up much authoritative learning upon the subject; " In this " system the full, entire, absolute property constituted " the dominium plemim the jus integrum^ and he who united " all its*elements in his own possession enjoyed jure pro- " prietario in integritate. By the effect of the feudal " contract this property was divided, the feudatory or " tfenant received the useful demesne whose profits consisted " in the produce of the soil, the grantor reserved the im- " mediate demesne whose profits consisted in the obligations " and dues of the feudatory." At page 589, he proceeds : " These considerations fix the true meaning of the wordsj^^f^/", 30 i " Seignior oi f,ef^ feudal law; in Customs all posterior to ".the extinction of the state of society which had es.tablished "it, as its chief object no personal superiority re- " mained, the Seignior could no longer command his vassal, " the latter was independent of the former. The seigniorial " association only subsisted in one of its means of existence^ " namely infeudation. The grant was not set aside with " the cessation of the chief object of that association, the " grant survived in its nature though not in its original ef- " fects. It no longer produced actually and usefully, fealty, " military service nor the right to administer justice: but. " it always consisted in a division of the property, and a " partition of its elements between the Seignior and the " vassal. The former was always proprietor of the im- " mediate, the latter of the useful demesne ; their respective " relations extended no further. All that the vassal held by " his contract constituted the useful demesne." Henrion de Pansey, 1 vol. pp. 270 to 2, admits that " property or sei- gneurie privee" as he designates it, " was of two kinds, the " immediate and the useful, originating in the Roman law, " and proceeding from the annual return due by tlie one to " the other under a contract, recoverable by the direct or the " useful action as the circumstances of the case required ; " these actions became synonimous with and were replaced " by the terms immediate and useful demesne." Prud- homme, Droits en rotiire^ p. 95, says : " the censual contract " is that whereby the proprietor of a fief disseises himself, " and gives up the whole or part of his property, and " conveys it by grant to the tenant in full property in " consideration of a perpetual reserved rent charge* on the " realty in recognition of its immediate connection with the fief, &c." Neither the immediate nor the sub grant purported ta settle mere feudal rights or privileges, but actually con- veyed a portion of territory, a certain extent of land, a realty in fact subject to certain stipulated conditions of the 31 i contracts and establishing the Seignior as well as the tenant equally full and absolute proprietors .of the property' granted to either. Thus an immense allodium was in effect parcelled out into distinct individual properties, all charged distinctly and expressly with the condition of settlement under the penalty of forfeiture and revocation of the grant in favour of the respective grantors, the King and the Seignior,. as the case should occur, upon the neglect of the Seignior or tenant to carry out that object of the grant, but the mode of settlement in both instances was left to the discretion of the grantee, and no revocation can be shown to have taken place when im- prov.ement had actually been performed. The chief and great objection raised at the argument before this tribunal with reference to concessions is that the rent charge, cens et rentes^ stipulated in the concession or sub- grant is excessive and that the law has fixed and establish- ed a certain quotiU ; this is a mere repetition of former forensic efforts and has been the staple of the popular orator at the hustings and in the Legislature but it has no foundation either in law or in justice. Upon this point the discussion may be narrowed to small dimensions ; no complaint has been urged by the tenants themselves with reference to their concessions or the stipu- lations contained in them ; the existence of the charge as matter of fact payable by all seigniorial tenants, individual and collective, is undisputed and unquestioned as having existed from early Canadian times and growing with the growth of the Colony ; the President of the Court has however so entirely exhausted this part of the subject thai a repetition would be tedious and unprofitable ; suffice it to notice briefly some of its principal features. By the Custom of Paris, the owner of a fief was only permitted to alienate two thirds of it without fine to the immediate Seignior, but in Canada where the grants pro- 32 1 ceeded from the King, the dominant Seignior and Legis- lative Lord, by whom a general settlement was intended by the terms of the grant itself, where the entire wilderness was required to be made useful and productive and where-no ancient family or political distinctions existed, the restriction of the Custom was not and in common sense could not be law, and the Seignior grantee might alienate his entire grant by sub-grants of right without fine to his dominant Lord the King whose object was free and early settlement ; the obvious reason is given in the report of the Ca- •nadian Committee to Governor Carleton in 1775, " se jouer " de son fief is to alienate a portion of the y^^/" without divi- " sion of the fealty ; but this alienation could not by the *' law of the Custom exceed two thirds ; the excess even " without division of fealty, becomes the property of the " dominant Lord. But this customary prohibition is in no " way an obstable to concessions tending to settlement be- " cause these are rather an amelioration than an alienation " of thej^'e/;" and Henrion de Pansey, p. 390, establishes that principle as law. The technical words of the Custom se jouer de son fief et faire son profit have been uniformly explained by French jurists of admitted authority, as signifying the power to alie- nate the limited quantity of the estate by sale or any other mode of alienation agreeable to the Seignior at such price and terms as might be agreed upon. 1, Henrion, pp. 375, 380-3, Herve, p. 361-1, Guyot, p. 115, 116, 142-1, Bro- deau, p. 534-1, Ferriere, Grand Com., p. 842, 848, cum mul- tis aliis — The customary restriction, as applicable to the ex- tent of the sub-grants being inoperative to that portion of the Seigniory in France, namely the alienable two thirds, did the custom, if indeed applicable at all, establish a quotite or fixity of rentcharge for the restricted portion or did it in fact establish such quotite at all ? It has been shewTi that the rent charge was in fact a matter of bargain and agreement, and the custom giving latitude of alienation, 33 ^ within the limited extent of the alienable portion of the sei- gniory requires only the retention of fealty and of some do- manial or seigniorial right on the property alienated, without however specially establishing what it shall be. The Custom in its text is silent, and its expounders, the French authors and jurists, are united in the opinion, that the Seignior had" power to convey and concede at any rate that he could obtain from his grantee or tenant. Guyot, 1 vol. p. 162, says : " A primary " principle acknowledged by all feudists is that DGminus " concedit ad modum quern viilt.'''' Herve, 5 vol. p. 91, sect. 9, discusses the question \vhether the cens is a rent charge pro- portioned to the true produce of the subject accew^e, or a mere honorific right recognitive only of seigniorial connection. He establishes it " to have always represented the value " of the property, and to be a revenue "proportioned to the " produce of the land," and adds, "the object of ihe jeu de " fief is to enable the Seignior to obtain the greatest possible ''• benefit from his property, to profit by it as laid down in the "51 article of the Custom, and thereby to advantage himself " in the most ordinary and usual way, which is shown by " the authors to be by the bail a cens or censual contract ; " how could that advantage be reached, if the cens were " merely honorific ?" he adds " that the old money rates had " become exceedingly small by comparison with the then " value of money, but that the old rates in grain and kind '• were still high and marked a very striking connection " with the then exact return and produce of land ; that the •' sol and denier of old times were gold and silver coins, and " that all the services and obligations charged upon a conces- " sion, including the cens, formed a censual unity of consider a- " tion explaining the seeming modicity of the ancient rate ;" he thus concludes : " it was natural for an intending tenant " to calculate the whole charge and payment to be made, •' and to pay so much less in money in proportion as his " land should be subject to a number of services or obliga- " tions charged upon it ; no rent charge great or small in ^' amount is of the essence of the bail a cens, and its defini- 34 i " tion cannot be made to depend or rest upon the greater " or less redevance censueUe always stipulated either in the " contract or by usage." A multitude of authors support the above, and it will be sufficient to add that the rent was of diffe- rent kinds, according to the produce of the French Province in which it was payable, and according- to the title fror» the Seignior. In the Paris Custom it was, as stated, made payable in money, grain or kind, whilst in Champagne the number of horses employed served as the rule. Freminville, 1 vol. p. 211, mentions, in corroboration of his opinion of the cens being representative of value, that " in the sales of " Crown lands in France in the Reign of Louis the 14th, the "rent reserved was fixed at 1-20 or 5 per cent on the an- " nual revenue of the land sold." This was the usual in- terest rate at wh'ich sales of land were made a constitute shewing the common known value of the return not only in France but in French Canada also, and at which, from the force of usage, they continued to be made among the French inhabitants of the Colony, long after the interest rate had teen raised to 6 per cent by the Legislature. The quotite was not stipulated in the original grants themselves of lands in the Colony, except in four exceptional cases explained by the President of the Court, and which form no precedent, as well from their limited number as on account of the peculiar circumstances connected with three of them in the grants themselves. Perfect freedom in this respect was established by judicial decisions from very early times; the Superior Council, by its Decree of enregistration of the Compagnie du Canada^ sustained the application of the Company's agent Du Barroys, " that the grants proceeding from the Company should be made for such rent charge, cens et rentes, as the Intendants should deem proper, and declared that nothing could be more conformable to the Royal inten- tions, and that it was just and proper to accord the demand." The same principle of non interference was continued not only by the Judicial action of the Colonial Intendants down 35 i lo the period of the Conquest, except in the case of one judg- ment rendered by Hocquart in 1738, evidently defective in the report given of it, and which defect or omission has been clearly and conclusively explained by the President, but also since the conquest, by numerous decisions of the British colonial tribunals, for nearly a century to the time of the passing of the Seigniorial Act of 1854, under which we have been compelled to act judicially in this matter. One word on that part of the ArrSt de Marly of 1711, which is supposed to sustain the fixity. The Arret provides for the grant to applicants, by the Governor and Intendant jointly, of particular portions of land refused to be conceded to them by Seigniors, and these officers are directed not only to divest the latter of the particular really applied for grant, but to charge it for the use of the Crown, with the same, droits^ charges as were imposed upon conces- sions in the same locality. This provision evidently goes upon the assumption that the Seignior had already admitted and established his own value for similar lands by his own contracts with his Censitaires^ tenants, and was clearly based upon an uncontradicted legal principle, that in the absence of proof by the contract itself as between the Seignior and tenant to fix the rent charge, the redevance paid by neigh- bouring tenants should be sufficient prinid facie evidence of the rate for the grant in such case : it is only necessary to repeat that this provision of the Arrit has never been en- forced. This point has been elaborated and discussed at so much length, that it may be considered as conclusively settled ; that neither the law of the Country nor the law of the Cus- tom of Paris alludes to a fixity of rate, that the Royal grants generally contain no such stipulation, that the freedom from fixity is involved in the complaints, made by the Chief Executive and Judicial Officers of the French King, in the "Colony, to the Home authorities, of the want of uniformity in that respect, as an evil to be remedied, but which was never 36 i accomplished ; that the British Chief Justice and Attorney General, as "early as 1769, declare it not to be uniform, that Cugnet, a Canadian lawyer, publishes the fact in 1775, in his Treatise of the laws of the Country, pp. 44, 45, in which he asserts, " that no Royal Edict exists fixing the " rate imposable by the Seignior ; that lands are not con- " ceded at equal rates ; that they are higher in the District " of Montreal than in that of Quebec, because the lands are " more favourable in the former than in the latter ;" that it has varied at different times and in different seigniories ; that there is a marked v/ant of uniformity in that respect where chiefly of course it should not be expected particu- larly to exist, in the Crown seigniories themselves, and that the judicial decisions of the British Canadian Courts of Justice have uniformly sustained the contract rate what- ever that might have been. From all this it is manifest that the rent charge has never been fixed and has not been uniform, and that the want of uniformity has been sustained by an unbroken series of decisions reaching to present times, maintaining the stipu- lated rates agreed upon and settled by the title or deed of concession, bail a cen^, and by them concluding the rate in the absence of contract. An en'oneous impression prevailed for a long time after the conquest and extended down to a recent period^ that a quolite or rate fixed by provincial custom had been established as a rule of law which might be enforced between Censitaire tenant and Seignior ; a more full examination into the subject, assisted very materially by the mass of documents published by the Govern- ment at various times during the late parliamentary dis- cussions and before unknown, has shown the error broadly and distinctly, but it existed as early as 1769, when the then Attorney General Maseres stated in his unadopted report to the Executive Council, that " wild lands are conceded at higher rates " than allowed under 37 i "**■ the French Government without regard to a custom or *** rule in force at the time of the conquest that restrained *' them in this particular^'' but he admits the absence of a uniform rule, and says " that the sub-grants were or- dinarily at one sol per square acre, but two sols were charged where the lands were richer, with one half minot of wheat additional for each sub-grant." Maseres was incorrect in his statement of the fixity of the rate, but his belief in the establishment of a customary rate continued to prevail, and impressed myself and others of my colleagues upon this inquiry as well as others whose opinions were entitled to respect ; it was however clearly an error and has been found to be no longer tenable. The next point of interest submitted for our determination as the supposed compulsion upon the Seignior to concede his lands, and this is based almost exclusively upon the Arr4t of 1711, technically and generally known as the first ArrSt de Marly, because no such stipulation exists in any of the grants themselves nor in any law or regulation previous to the promulgation of that Arr^t. It might suffice to observe that defrichement, improvement, not concession, subgrant, was the condition of the original grant, the neglect of which entailed its revocation ; as this Arret has been adverted to, its terms and provisions must now be briefly examined to ascertain the support which they are supposed to give to this compulsory obligation upon the Seignior. It may be here observed that publication of the ArrSt was not generally or fully made in the province for twenty years after its date, and indeed only by the Arr^t of 1732 which repeated its terms and provisions. The ArrSt sets out distinct complaints, and provides distinct remedies. The first com.plaint stated in the preamble to the Arrit, is that " among the Royal grants of lands en sei- gneurie to His subjects in New France, there are some which are not entirely settled,'''' this is passed over without ob- servation and without remedy, and evidently not considered 38 i to be an evil, because no remedy is provided. The second is " that other grants have no inhabitants on them to bring them under cultivation, and that the Seigniors have not com- menced clearances on them for their own residence thereon :"" for this evil, which is assumed to be an absolute breach of the condition of the grant to improve the estate granted, a remedy is expressly provided, commanding " those " Seigniors, grantees, within one year from the publication " of the Arret, to bring their grants under cultivation and " place inhabitants thereon, under the penalty of revocation " of the grant and re-union of the granted estate to the King's^ " demesne by the Governor and Intendant, upon the com- " plaint to that effect of the Attorney General, Procure ur du " Soz." The compulsory concession is evidently not to be found in the Arr^t so far. The third evil is " that some Seignieurs refuse, under various pretexts, to concede lands to inhabitants applying for them, with the view to sell them imposing at the same time upon the purchased lands the same dues and duties, droits de redevances, as the settled inhabitants are charged with, which His Majesty declares " to be entirely contrary to His intentions and to the terms of His grants, which permit concessions of lands subject to dues and duties a litre de redevanccs merely," and for this evil a special remedy is also provided, " His Majesty ordaining that all Seigniors do concede quails ayrnt a conceder in their seigniories the lands demanded of them subject to dues and duties, without exacting any sum of money as a price for such concessions, otherwise and on the Seignior's con- travention of His commands in that respect, that the demanded lands on the formal summons of the applicant shall be escheated to the Crown, and concession thereof made by the Governor and Intendant for the same dues and duties, droits de redevances, as those imposed upon the other concessions, and which are ordered to be paid to the King's Receiver." It is too much to seek in this third evil, and its remedy, for a general compulsion on the Seignior to concede his lands, whereas its object was the prevention of 39 i land speculation, and of obstructions by Seigniors to the settlement of the Country by sub-grants at a rem charge only, sale impeding the habitants, whose scanty monied means preventing purchase, were essentially and absolutely necessary for their first settlement upon their concessions. The King himself explains his meaning on the subject of the ArrSt de Marly in his Instructions to the Governor and Intend ant of 26th June, 1717, in which he observes "that " their attention to the enforcement of the Arr6t of 6th July, " 1711 (the Arrit de Marly), which provides for the escheat " to the Crown of unimproved seigniories, and to the obliga- " tion upon Seigniors to concede lands in their seigneu- " vies which they desire to part with, is very necessary for " the settlement and extension of the Colony ; they must " prevent Seigniors from receiving money for conces- " sions of wild lands terres e?i bois debout, as it is not just " that they should sell the property on w^hich they have " incurred no expense, and which was given to them only " to have it settled." To discover a compulsory obligation to concede in the plain and evident words of the ArrH above transcribed argues a manifest mis-apprehension of the plain object and intention of its provisions, and a mis-application of the plain language of the enactment itself, whilst it is at the same time at variance with every just principle of the legal construction of such documents. It is sufficient to add that no authoritative adjudged case can be discovered in which the Arr^t has been enforced in this particular, evidently in- dicating the supposed intention of its promulgators to have it considered what it became a mere brutum fulmen. The subsequent Arret of 1732, which re-enacted the pro- hibition to sell of the ArrH of 1711, was as ineffective for compulsion as the former, whilst the Royal Declaration of 1743, which provides a code of practice to be observed in matters of escheat, makes no special enactment in respect of the compulsory concession of lands. 40 ^ It may here be observed that in several of the Royal grants, chiefly in those subsequent to 1732, a condition will be found that the concessions shall be " aux cens et rentes accoutumees par arpent de terra de front^'' which was evidently inserted by the advisers of that last Arret^ solely for the purpose of reaching the difficulty above adverted to, of the sale of wild lands by Seigniors, and of giving contractual effect to the prohibitions and penalty of the Arrets. This condition however had not the most distant connection with com- pulsory concessions by the Seignior when he could improve his grant without .resorting to sub-grants. To the extent, therefore, of a legislative and authorative settlement of the consideration of a sub-grant, namely for droits de redevances, dues and duties alone, when a sub-grant was made by the Seignior, and the prohibition to demand a price for the concession in addition to those recognized droits^ and in the further legislative and authorized enforce ment of its observation for the purposes of cultivation, not speculation or land jobbing, the ArrSt of 1711 was un- doubtedly compulsory, but to that extent alone ; it did not, nor by any mode of discovery or explanation that can be legally applied to it could it be intended to interfere with or compel Seigniors to part with their property : as under the Custom of Paris when alienation was made en fiet\ which the Seignior was however not compelled to do, some feudal recognition was required to attach to it, so in Canada, when the Seignior was willing to sub-grant, it was with the dis- tinct understandino; that it should be a titre de redevance and without exacting in addition a price in money ; this clearly was the sole object of the Royal Legislation of the Arrets oi 1711 and 1732. To obviate long argumentative responses in the judgment, no objection was recorded by me to the 7th, 8th, 9th and 10th answers touching this point of compulsion, with its farther references, because, in fact, the matter was of no im- portance or interest in a practical point of view for the solu- 41 i tion of Ihe legal points involved, and might have been omitted altogetlier in the reference ; and moreover, because the language of the answers discussed and agreed upon by the Judges at their final adoption, in fact conveyed undeniable facts and references which offered grounds for a partial acquiescence in them ; but to avoid mis-concep- tion, reservation was made to explain my assent as published with this Judgment, and to state my distinct denial of the compulsion to sub-grant either by the terms of the Arrit or otherwise. The first ArrH of 1711 and that of 1732 had reference to Seigniors and their grants; but the second Arret of 1711, which was registered in the Superior Council of the Colony at the same time wath the first, above referred to, provided for the escheat in favour of the Seignior, of con- ceded but unoccupied sub-grants, a summary process for its enforcement before the Intendant alone was thereby pro- vided ; no discussion has arisen with reference to this se- cond Arr4t^ which has been frequently enfoi'ced, as well under the French as under the British Dominion. It is obviously important to refer for explanation on this head of escheat, reunion^ to the course pursued in France in the matter. From early times unoccupied lands were viewed with disfavour wdaliter et utiliter^ and Freminville, 3 vol., pp. 344, 5, says : "that they might have been taken " possession of by the first occupant ; this occupation be- " came in time the right of the Seignior justicier^ whicli "by the Ordinance of Charles 9th, of 1566, was intro- " duced into all Letters Patent granting to Seigniors power " to renew their Terriers, and was the more legal because " it tended to the public good, for the useful cultivation " of unoccupied lands in the seigniory, and this appears by " the Arr^t of 13th Oct., 1693." 1 Henrion de Pansy, p. " 237, repeats the words of Dumonlin : " Vacant and unoc- " cupied lands belong to the feodal seigniors, because they 42 ^ " were in the origin of fiefs invested with the entire territory " of the fef, and those lands remained uncultivated only be- " cause it was not thought proper to infeodate or accense " them ; in as much, therefore, as the Seignior did not alie- " nate them he remained proprietor of them, this is the le- " gal presumption ; all te?-re tenants within the limits of a " seigniory are presumed to hold their lands under concession " from the Seignior, in virtue of successive alienations made " by him as new acquirers offered. The uncultivated lands " must therefore be considered as portions which the Sei- " gnior of the ^e/" has not accensed, because he has either " been unwilling to do so or has met with no applicants for " them." DePansy further observes that " Dumoulin's opinion is sustained by legal principle and the nature of things, and has never been controverted." In France, the King had no power of appropriation and escheat, reunion, to his demesne of any abandoned and unoc- cupied lands not within it ; that right over seigniorial lands resided in the Seignior Haut-Justicier of the Seigniory. Furgole, Treatise of Aleu, p. 6, observes : " However " exalted the Royal influence may be within the State, " Kings have not presumed to stretch their power to the " disposal of the property of their subjects without their " participation, or without some object or motive of public " good as a ground for their proceeding." In Canada, the grants proceeded directly from the King himself, and con- tained his own stipulations and conditions agreed upon and accepted by the grantee, and specially the paramount obli- gation of settlement ; a breach of that obligation was a breach of the subsisting contract between the grantor and grantee, and brought the unoccupied land clearly within the law of the escheat and reunion, of the granted estate to His Royal Demesne, by his mere right as Seignior dominant, immediate Seignior ; the first Arret of Marly in eflect did no more than declare the existing law, whilst it provided a speedy means for its enforcement, in a summary manner, by an extraordinary special tribunal, composed of the Cover 43 i nor and Intendant, instead of by the tedious course of legal proceedings before the ordinary tribunals of the Province, even if these had been competent to adjudge between the King and his grantee. Both the Arrets of Marly in this respect affirm the prin- ciple of the common law, and offer novelties only in the mode of proceeding for its enforcement, the first providing a species of Land Board for determining upon the propriety of the escheat and the subsequent regrant, and the second pro- viding an easy mode of proof, and an expeditious proceed- ing to adjudication, without the necessity for the employ- ment of counsel, or the incurring of expense by the Seignior whose sub-grant had been abandoned and was unoccupied; the chief object of the first Arret of Marly was to relieve the King himself from the necessity of personal interference with his grants, whilst that of the second was to procure prompt action for the reunion to the seigniorial domaine of vacant land. This joint tribunal, first established by the first Arret of Marly, may be, with truth and correctness, denominated an administrative Land Board, whose attributes and powers it becomes necessary to appreciate and understand, inasmuch as the conclusions to be therefrom deduced bear strongly upon the answers to be given to several of the questions prop(junded. As previously stated, those attributes and powers had connection only with the grant and regrant of land?, and did not extend farther. The Board not only controlled the grant of ungranted or unoccupied land, but directed the escheat or re-union of granted land and its regi-ant as unoccupied land ; the escheat was simply formal, the regrant being essential as part of the Royal intention of settlement, for which alone the power to escheat was given as subsidiary : these attributive powers were uncontrolled by any legal rules, and solely influenced by the discretion of the Board, by their consideration of the King's supposed or express intention, and by their appreciation of the best 44 i and most effective mode of advancing the interests of the Colony. The objects within the scope of tiiese attributes and powers conferred upon the Governor and Intendant jointly, as above mentioned, could not with any propriety be in- trusted to judicial authority, because the subject was of administration and police, without any law whatever appli- cable to its exigency, or by which a Court of justice could be directed or guided. Monsieur Petit pertinently remarks upon this subject, " that the laws have not explained what " the Arrets call the settlement, which is inquired, to be es " tablished for the avoidance of the re-union of lands to the " domaine. This would be difficult to determine by a ge- ^' neral law, because circumstances cannot always be alike " at all times, and all lands are not susceptible of the same *' culture, &c. Hence the necessity for the interposition of " the Executive Government, not only to declare upon the " propriety of re-uniting the grant but, also upon tlia re-con- *' cession of the property re-united, or the arbitrary grant of the ^' Seignior's land applied for and refused." " At first all '' grants were made by the Intendant, as the representative of *' the principal agent of the great Companies. This authority '' was afterward intrusted to the Governor and Intendant " jointly, because the selection of the land to be granted, and ^' of the person of the grantee, might and did interest the pre- ^'- servation of the Colony under the King's dominion, and " for which the Governor was responsible " : > " This un- " doubtedly was the reason for the attribution extended by " Letters Patent, within a few years after the re-union of the *' Colonies to the Crown domaine, to these two officers in " common and to none other than themselves, conjointly and ^' not to either of them, to make grants of lands." With re»- ference to the administration in relation to French and English concessions in America, Petit observes " that the " legislation of both nations was the same in matter of con- ^' cessions. The officer accountable for the preservation of -^ the Colony confided to his charge could not be a stranger " to it : the choice of grantees is evidently too important a 45 i *• matter to be made independently of the Governor. The " police over the reunion to the domain of lands granted by " abusive concessions is the same, and for the same reasons : " the conditions of the Crown grants are potestative in the " grantees, who can only blame themselves if they neglect " or refuse to fulfil them. The threatened penalty of for- " feiture of the grant, like the obligation imposed upon the " West Indian grantees to have and maintain a certain " number of black and white persons on their estates, des- " troyed the laws requiring the performance of the con- " dition. If it could be held just and necessary in regard " of persons in good circumstances, how much less '^ should it apply to grantees who, with small means and " little or no credit, or who depended upon the feeble ex- " pectations derived from plantations upon which they were " compelled to labour with their own hands to preserve theiii " from forfeiture. It is impossible to expect any good result " from such conditions of concessions, the first of which " should have been to limit the extent of the lands granted, " according to the nature of the plantations or culture of '• which they were susceptible ; the omission of this con- ^ dition has prevented the increase of the population in the " Colony. Re-union is a punishment, it is true, but if the " settlement made by the first settler has exhasted hi* " means, the Colony loses an inhabitant whom she would " retain if his outlay in labour and advances were accounted " to him by his successor, who has the advantage of enter^ " ing upon a cleared or partially opened land, the whole " profit from which would soon be within his own grasp. •)•> The joint nature of the attributes intrusted by the ArrSts of 1711 and 1732 to the Military Governor and Judicial In- tendant, not alone for the reunion or escheat of the unimprov- ed grant, but for its subsequent re-grant in the same manner as any other ungranted land, the fact of the preponderance distinctly given to the Governor over the Intendant by virtue of the Royal Declaration of 1743, and to which Chief-Justice- Hay adverts in 1767 in the following terms : " the power of 46 i ** the Governor was absolute in his department and he could *' even control the Intendant in civil matters ; in matters of *' great importance, particularly in granting lands, it was ne- *' cessary that both should join" these, together with the reasons stated above, demonstrate these attributes therefore to be merely of state policy, intrusted to this peculiar administra- tive Land Board, and bearing about them no judicial attri- bute or organization whatever. One instance only has been found of the enforcement of the Arrdts of 1711 and 1732, namely the Arrdt de reunion of 10 May 1741, Edits et Or- donnances^ 1 vol. p. 555, but this was a special case, pro- ceeded upon by the express and special order and direction of the King himself, for non settlement of the grants after a delay of twenty years and without any attempt at occupa- tion or improvement, and yet, notwithstanding that neglect, the Governor and Intendant promise new grants of the es- cheated estates to the same ejected grantees, if they would undertake to perform some slight settlement duty within a year ; thereby clearly shewing that the attributes of this special Board were administrative not judicial. The peculiar provisions of these Arrets, examined at this distance of time and without having received at any time any operative effect, present them to our notice as pecu- liarly inapplicable to any country in which settlement is progressing ; they were in fact eminently favorable to the Seignior, inasmuch as the prohibition to sell, applying exclu- sively to wild uncleared lands, ferres en hois debout^ did not reach cleared lands at all, and were strongly recommended by the Board not to affect the natural pastures, prairies ; their inapplicability may also be acknowledged from an ap- preciation of the nature of the country, and the habits and character of ils inhabitants, and from the fact, that the re- quirement to settle and improve the grant within the limit of one year, according to the ArrSt of 1711, extended to two years by the Arrdt of 1732, was neither more nor less in- tended to be made operative, than as a covert declaration of confiscation under the guise of a liberality, which could not 41i within the knowledge of the Legislator and his colonial ad- visers by any possibility be carried into effect. These observations necessarily lead to an inquiry into the nature and character of the Arrets themselves, keeping in mind that the second Arret of 171 1 does not fall within the dis- cussion. The inquiry in the first instance may be sought for in the correspondence between the Home authorities in France and the Colonial authorities in Canada in relation to them. The joint annual report of the Governor and Intendanl in October 1730 informs the Minister that the Arr^t of 1711 was generally unknown in the Colony, but would be pro- mulgated in the following year, unless H. M. should other- wise direct ; the continuance of the then state of thing«< without interference was however recommended until H. M. should publish a second Arret to prevent the sale of wild lands under the penalty suggested by the writers and adopted in fact in the Arr^t of 1732 ; their report of Oc- tober 1731, especially declares the fact that Seigniors do in general concede their lands, and that Censitaires have never complained against them, but the necessity is urged for another prohibitive Arret^ and the report concludes with the intimation that since 1712, the intendant has given operative effect to the second Arr^t de Marly, by re-uniting to the do mains of Seigniors two hundred vacant concessions. The Arr^t of 1732 followed out these suggestions, repeating the provisions of the Arrets of Marly and promulgating a special prohibition against the sale of wild lands, under the penalty suggested by the Governor and Intendant, but extending the limit for settlement to two years instead of the more limited period of one year fixed by the Arr^i of 1711. . Upon the subject of this limitation for settlement, the Go- vernor and Intendant themselves state in their annual Report of 1734, " that it is a provision which it is impossible to enforce a la lettre ; they observe that settlements can only be established after several years, " on croit que ce ii'est gu^apres quelques annees qit'ellepeut avoir lieu.,'''' but that " the 48 z matter was within the range of their discretionary powers." The extract from the Report of 1734 above adverted to is as follows, " the penalty of re-union for non settlement within the year and day must not be taken literally. We know that settlement cannot be effected until after several years, and that it is in the power of the Governor and Intendant alone, under the Arrets of 1711 and 1732, to pronounce the re-unlon, which they will never rigorously enforce against the Seminary of ISIontreal to whom the writers are ordered to extend the utmost reasonable facilities. " It is even proper for the King's service and the Colony's advancement to ex- lend the time, according to circumstances, to the concesion- naires of the gi-anteess, one year being insufficient : but it appears indispensable, seeing H. M's intentions, that the clause should remain to excite seitlements more promptly : as to the Seminary they need have no fear." The temporary nature of these Arrets will thus be found in the correspondence of these Colonial Officials with the Home Authorities, in a referrence to the language of the Arrets themselves, and in an examination of the state, condition and local circumstances of the Colony at the time. No Colony was in fact ever placed in more peculiar and distressing cir- cumstances than French Canada : the settlement from the commencement of the eisrhteenth century was almost con- stantly exposed to Indian surprizes, or to a system of harrass- ing attacks from the neighbouring British Provinces ; the Co- lony had a succession of military governors who at all times rejoiced to head military expeditions not only near home but at a distance from their seat of government, and it contained a limited population of a roving and military disposition, rather than fixed and permanent settlers as agriculturists, and who were not only liable to be called out at all seasons to repel aggression, but more frequently themselves volun- tering to make attack. Tiie state of the Country is exem- j)lified by General Carleton in his examination before the House of Commons in 1774, previous to the passing of the Quebec Act, in the following terms : 49 i '" Under the French Government, the spirit of the govern- ment was military, and conquest was the chief object ; very- large detachments were sent up every year to the Ohio, and ■other interior parts of the continent of North America. This drew tliem from their land, prevented their marriages, and great numbers of them perished in those different ser- vices they were sent upon. Since the conquest, they have enjoyed peace and tranquillity ; they have had more time and leisure to cultivate their land, and have had more time to extend their settlements backwards ; the natural con- sequence of which is, that wheat is grown in great abun- dance, &c. It has been observed by an esteemed French Vv^riter : " that the French government seeing that private enlerprize did not succeed in peopling New France gave to its colonization a character almost entirely military, not so much as a means of rapid settlement as a defensive precaution for the protection of the colony. Beausejour, Niagara, Frontenac, Detroit, Fort Duquesne were merely military Colonies. The fur trade and constant wars had distasted the Canadians with peaceable pursuits. A hunting and warlike people, they despised agriculture, arts and comi- merce : reputation and honor could only be gained in hardy and dangerous enterprizes or in battle. The Canadian, ins- pired by his Government too poor to protect him by regular troops, seized his gun, became a soldier and acquired that love for war which so greatly impeded the developement and progress of the country." And Charlevoix, 5 vol. p. 127, observes whilst remarking upon the faults of the system adopted in Canada : " Premierement, on a ete un temps " infini sans se j&xer ; on defrichissait un terrain sans I'avoir " auparavant bien examine ; on I'ensemencait, on y elevait " des batiments, puis sans trop savoir pourquoi on I'aban- " donnait et on allait se placer ailleurs.-' In such a state of things it was not wonderful, that the second Arrit of Marly was so frequently enforced in favour of the Seignior, 50 t and that in fact frequent reunions, escheats, had been obtained even without it, from the Intendant in his judicial capacity^ for years previous to its publication in the colony, for breach by the Censitaire of the condition of settlement stipulated in the sub-grant or concession. It is in the face of such a system and of such circum- stances, that the Arrets of 1711 and 1732 are asserted to be municipal laws intended for enforcement and execution as applying to Seigniors-; a supposition at variance with the temporary character attribn'ed to them by the Colonial Offi- cials themselves, by their futility to be enforced and by their inapplicability to an improving and progressive country. They were in fact emanations of state policy as already observed for temporary and special purposes only, and en- tirely abandoned to the Governor and Council by whom the enforcement of the escheat was altogether discretionary : the French Minister intimating to them the Royal will : " that the obligation to settle within the year, inserted in the grants must not be taken strictly and H. M, leaves it entirely within your discretion, S, M. s'en rapporte a voire prudence a cet eo-ard. ^O' Admitting, however, that these Arrets were municipal laws within the powers and authority conferred upon the French Governor and Intendant, can they be legally brought within the attributes of a British Colonial Judiciary ? It is un- deniable that no power to dictate land grants to the Crown could reside in such a body, that power having been clearly deposited by the Royal Instructions in the hands of the British Governor of the colony alone, acting for and in the name of the Sovereign ; unless indeed it can be conceived, that the British Crown and its Colonial Executive were sub- jected, in the grant of lands, to the judicial supervision of the Canadian Courts of Justice, constituted for the sole purpose of deciding upon litigated difficulties arising among the inhabitant a of the colony, with reference to their posses- sions and their civil rights : land granting clearly is not 51 i within the recognised powers of the British Canadian Judges. What remains ? The enforcement of settlement within the stipulated limited period of one or two years, upon the prose- cution of the Attorney-General as directed by the Delcaration of 1743, without whose action the judges had no power to act at all, and upon whose prosecution alone the Arr^t must have been carried into absolute operation, without possible com- mination or locus panitentice afforded to the grantee : the discretionary power of the Governor and Intendant admi- nistrative and executive united in those officers, but judicial only in the Colonial Courts, could not avail at all, and the reunion would be absolute at the expiration of the period of limitation. But by what rules of law could the Courts appreciate the grounds and reasons of the Seignior's refusal, the politic or personal capacity or bona fide intention of the applicant, or his m6ans and ability to render the con- cession available for settlement ? No such rules exist or can exist in such case : the action of the public officer or of the Courts, if authorised to act, must necessarily therefore be discretionary and above as well as beyond law, and could not belong to a British Court of Justice, how- ever eminent, bound to administer law. I am not aware that the British Crown has, in any instance, profited by and appropriated to itself land grants in any of its con- quered or ceded Colonies, under penalties established by a law of forfeiture promulgated by the foreign legislature of the colony, before its conquest or cession to the British Crown. It is difficult to conceive any combination of cir- cumstances imperial or colonial, administrative or judicial which can sustain, at this day, the existence of such provi- sions or the devolution of the powers contained in the^lrre'^^, to the existing Courts of Justice in the Colony constituted by the unarnbiguous language of the statutes of their creation, to administer municipal law and justice to the subjects of the Crown and not to declare or control the public or state policy of the Colony in the grant of lands. 52 i Upon this matter Monsieur Petit observes that " the 4th Art. of the Declaration of 1743 assumes as already existing and confirms the power conferred upon the Governor and Intendant, to the exclusion of all ether judges, to determine upon all disputes respecting the validity and execution of land grants, their position, extent and limits." If these attributes were actually included in the jurisdiction confer- red upon the Colonial Courts, it must follow that they could control the position, extent and limit of a land grant in defiance of the Crown, a supposition as absurd, as the alleged erection of the Governor and Intendant into a Court of Justice, because of the use of such common technical terms as " Ordonnance rendu " " connaitre des contestations " in the Arret of 1711 and Declaration of 1743 conveying the Royal intentions upon the subject, and the investiture of those state officers with an extraordinary judicial jurisdic- tion as a Cour Royale, because certain regulations were imposed by that Declaration upon their observance in the performance of their duty of granting and regranting lands in the Colony ; with such reasoning the present Crown land Department and its regulations for granting lands would necessarily become a Court also, and its reports, judgments Ordonnances, of similar judicial eifect. In a word, the exceptional authority of this joint delega- tion which could not be and never was administered by the existing French Courts in the Colony, which had no con- currence with those Courts and could not be extended be- yond the subject matter and parties for which that delega- tion was specially established, or the acts as such and only such as were necessary to carry out its powers, is suppos- ed to have been devolved upon the British Colonial Courts, because their jurisdiction was, by special statutory enact- ment, declared to embrace all the civil matters which those French Courts took cognizance of, amongst which were, however, none of those executive acts performed by the public Officers, the Governor and Intendant jointly, and in- volving discretion and judgment in determining whether 53* the duty existed, for their application of the law of the Arrets as part of the ordinary routine of the business of Go- vernment. With the Cession therefore, the first Arret of Marly of 1711 and the Arret of 1732 in corroboration of it ceased to exist, and the Declaration of 1743 in so far as it applied to the provisions of these Arrets or to the joint power of Governor and Intendant had lapsed ; no subsequent legislation has re-established them or either of them. As early as 1767, the Attorney General Maseres was under the impression " that a formal enactment was neces- sary to restore the laws in force under the French ad- ministration relating to the tenure and alienation of lands and to the forfeiture, confiscation, re-annexation or re- uniting to the domaine of land by escheat or other devo- lution of same whatsoever :" this was in the interval bet- ween 1764, the date of the Ordinance of the Governor and Council which had assumed to abolish all the French laws and to substitute the entire body of the laws of En- gland civil and criminal in their place, and the year 1774 when the 14 George III was passed, w^hich enabled the King's Canadian subjects " to hold and enjoy their pos- sessions and property with the usages and customs relative thereto, and all other their civil rights in as large a manner as if the Proclamation of 1763, and the Ordinances for the admi- nistration of justice, including that of 1764 above cited, had not been made, and as may consist w^th their allegiance and subjection to the Crown and Parliament of Great Britain." The 14 Geo. Ill also provided, " that in matters of controversy relative to property and civil rights resort should be had to the laws of Canada, as the rule for the decision of the same and that all causes to be instituted in Courts of Justice to be appointed within the Province by His Majesty should, with respect to such property and rights, be deter- mined agreeably to those laws until altered by the Governor and Council." The 34 George III reconstituted the judiciary 54 i and settled their jurisdiction, extending to the King's Bench Court thereby constituted, power and jurisdiction " over all plaints, suits and demands which might have been heard in the Courts of prevofe, justice royale^ Intendant or Supe- rior Council before 1759, touching rights, remedies and actions of a civil nature and not specially provided for by legislation since that year," but without a word of the joint action of the Governor and Intendant or their joint powers respecting land grants. The jurisdiction formed by these statutes therefore is distinct and altogether separate from the peculiar and spe- cial duties and powers imposed upon the Governor and Intendant as public administrative functions, these latter and their official exercise in that respect cannot be included within the jurisdiction and powers of a civil nature^ or within the denomination of either the Court of Prevote^ the Cour Royale or the Superior Council, whose attributes and juris- diction were invested in the provincial Courts constituted to decide upon the litigated rights and property of the provin- cial inhabitants among themselves. The power of reunion and regrant conferred upon the Governor and Intendant jointly, as such public administrative officers, could not and did not manifestly form any part of the jurisdiction of the British Colonial Courts of Justice esta- blished by the Statutes. The difference between the at- tributes of the old French land Board and those of the Colonial Courts of Justice are so plain and palpable as to require no comment. It is not possible to conceive, that the administrative and discretionary powers specially and distinctly conferred upon the Board could be conferred upon the Courts of Justice by implication alone, and in op- position to the express instructions of the British Sovereign, by which the grant of lands was intrusted to the Governor of the Colony and the Executive Council, whilst it is at the same time undeniable, that the powers of the Intendant in his acknowledged judicial capacity and attributes, un- 55 t der the second ArrH de Marly, were expressly given to and do exist in the Colonial Courts. It may be asked in conclusion, whether the arbitrary authority conferred upon the procureur du roi under the said Arrets and Declaration of 1743, fall within the scope of the official duty of the At- torney General of Lower Canada ; that he could or would act of his own mere motion as in the French time, and without the previous order of the Governor in Council, is not credible nor i« it possible ; and it is difficult to dis- cover the ground for the belief of the existence of such a power in any delegation of royal authority to Colonial Courts at any time by any British or Colonial legislation. Before concluding this part of the reference, it is proper briefly to notice that part of the ArrSt of 1732 which pro- hibits the sale of wild lands ; the preceding portion being a repetition of the Arret of 1711 has been fully discussed. The Arr4t of 1732 states as preamble to this special enact- ment, H. M's., information " that in contravention of the Arret of 1711 some Seigniors have retained large tracts of uncleared wood lands, as domaines, which they sell, instead of conceding them at a reserved rent, that their grantees re- sell these lands to others who again sell them and thereby in- jure the growth commerce of the colony, wherefor H. M. expressly prohibits all Seigniors and other proprietors from selling any uncleared wood lands, under the penalty of nullity of the contracts of sale and reunion of the land to the Crown domaine." This provision is evidently a regulation of state policy, and although probably few in- stances have occurred in which it has been con- travened by Seigniors, it is idle to suppose that it can be existing law to control or limit the sale of wood or unclear- ed lands by holders, when it is known that the wood of Ca- nada has been one of its chief staples and commercial com- modities for nearly a hundred years certain ; and that no judicial ease under this enactment has ever occurred either since or previous to the Cession. The terms of the enactment moreover shew that it was not applicable to Seigniors alone. 56 i A moment only need be given to the Ordinance of the Governor and Council above referred to of 1764, be- cause in its effect, this Ordinance was supposed to have more or less interfered with these Arrets. This Ordi- nance passed by the Governor and his Council of the day, un- dertook to establish a new judicial system for British Ca- nada, and to substitute for the laws and usages of the Co- lony under the French regime, the entire system of the English civil and criminal law. Whether correctly or not.^ the Ordinance was generally understood to have abolished all the French laws and legislation, and in the generality of its revocation, to have embraced these very Arrets of 17 1 1 and 1732 as public laws with the Declaration of 1743 as the Code of practice for their enforcement and for that of the forfeitures and penalty therein contained, at the suit of the public pro- fe-ecutor, the Attorney-General. The Ordinance is no longer in force, and its constitutionality need not be questioned ; It was, however, recognized as law for ten years and though it was distasteful at the time, its legal existence was affirmed by the Stat : 14 Geo. 3rd, which not only established by Sta- tutory enactment the Criminal law expressly introduced into the province by this very Ordinance, but did not in fact revive- or restore the provisions of the Arrels of 1711 and 1732 and the Decl : of 1743, in so far as these had reference to Imperial or public rights and attributes ; the 14 Goi 3rd, did authorize,^ all Canadian subjects in the province to hold and enjoy their possessions and property, together with all Customs and usages relative thereto and all other their civil rights as if they had not been questioned, and moreover did require the decision of all controversies relative to properly and civil rights to be governed by the lav>'-s and customs of Canada until altered by competent authority. The administrative attributes affecting land grants and escheats under the Arrets above referred to were, however, evidently not contemplated and certainly not revived by the 14 Geo. 3. The foregoing observations might suffice for a negative answer to the Questions submitted, whether the law of those- 51 i Arrets was of public policy and still in force at the passing of the Seigniorial Act. This matter has been elaborated more than its importance in this controversy or the Questions in con- nection with it deserves : the subject might have been omitted altogether, inasmuch as the existence or otherwise of the Arrets or of the administrative or even judicial powers of the Gover- nor and Intendant jointly, has no practical bearing upon the settlement of the rights of the Seigniors for commutation : their antiquarian value has been recognized and submitted to us for the expression of our opinion, but notwithstanding their unimportance practically, a legal point with reference to them has been raised and asserted by the Counsel for the Seigniors, not without reason and strong authority to support the pretension, that even admitting these Arrets to have been laws of public policy at the Cession, a contrary usage for a century and an entirely new order of things in Canada have absolutely and altogether nullified them. The following authorities were cited at the Bar and are here repeated as conveying their own explanation. " Laws may be abrogated by usage coniraire : — 1 Solon, des Nullites, p. 267 : " Nos lois nouvelles n'^ont rien de contraire a des prin- " cipes aussi generalement admis, et comme autrefois, elles " sont susceptibles d'etre abrogees par un usage contraire. " Nous devons meme dire que si ce genre d'abrogation a " ete toujours considere comme tenant a la paix des fa- " milles et a I'ordre public, il a dil acquerir plus d'impor- " tance dans les nombreuses revolutions que nous avons eu " a subir depuis '89. Combien de lois en effet ont ete faites " avec legerete et repoussees par Popinion publique ! Com- " bien de lois n'ont du qu'a des circonstances passageres " une vie aussi courte que la cause qui les avaient pro- " duites, et nos bulletins ne sont ils pas remplis de dispo- " sitions legislatives qui ont cesse d'exister sans aucune " abrogation formelle ! 5Si No, 394. La jurisprudence a aussi confirme sur ce point Jses anciens principes. No. 399. Quid si la loi etait prohibitive de tout usage contraire ; si par example le legislateur avait declare que la loi serait observee, nonobstant tout usage qui tendrait a I'abroger ! Nous ne saurions partager cette opinion : sans doute I'abrogation serait beaucoup plus difficile a s'operer ; il faudrait beaucoup plus de temps et un plus grand norabre d'actes contraires, mais du moment que ces actes seraient multiplies qu'ils se renouvelleraient journellement avec les characteres ci-dessus, ils abrogeraient la loi, malgre la de- fense qui se trouverait comprise dans ses dispositions. Avant d'aller plus loin, il est a propos de rappeler les principes de la jurisprudence fran^.aises sur les effets de la desuetude et I'abrogation qui en resulte. M. Dupin fait observer que les lois ne sont pas seulement abrogees par la volonte expresse du legislateur ; elles peuvent I'etre par la desuetude, c'est-a-dire iorsque, par un long temps, on s'est accorde a ne point les executer. " Cette inexecution, quoiqu'elle ne soit qu'un fait negatif, *' a cependant une force positive dont le legislateur lui- *' meme est oblige de reconnaitre I'empire. Ainsi les au- *' teurs des lois romaines," ajoute-t-il, " reconnaissent que " c'est avec tres grande raison qu'on a admis que les lois *' seraient valablement abrogees, non seulement par le suf- " frage expres du legislateur, mais aussi par le tacite con- " sentement de tous, si I'on s'accordait generalement a les " laisser tomber en desuetude." " Chez nous I'ordonnance de 1619 en avait aussi une dis- " position expresse dans son article ler qui enjoint I'execu- *' tion de toutes les ordonnances qui ne sont specialement *' revoc|uecs ni abrogees par usage contraire^ regu et appiouve ** de nos pr^decesseurs et de nous. — Et a cet egard il faut re- '■'• marquer que cette approbation elle-meme n'a besoin que 59* " d'etre tacite et qu'elle resulte suffisamment de ce que " I'autorite qui a le pouvoir de faire executer toutes les lois, " s'est dispensee de tenir la main a cette execution, et a *' laisse pratiquer ouvertement le contraire." Dupin, Ma- nuel des Etudiants en Droit, Notions sur le droit, p. 406, Paris, 1835. Le chancelier d'Aguesseau a reconnu la puissance du non-usage, en disant qu'on ne pent recourir en cassation pour violation d'une lot abroge par desuetude. Cochin reconnait aussi I'abrogation des lois par desuetude. " Ainsi, quand les lois sont demeurees sans execution, " et qu'un usage contraire a prevalu, on ne pent plus in- " voquer leur sagesse ni leur puissance ; on pent bien les " renouveller pour I'avenir et arr^ter le cours des contraven- " tions par une attention exacte a les faire executer, mais " tout ce qui a ete fait auparavant subsiste et demeure ine- " branlable, comme s'il etait muni du sceau meme de la " loi." Vide^ CEuvres de Cochin, tome 3, LII consultation, " p. 707. Suivant Dupin, ce mode d'abrogation s'applique princi- palement aux lois pea rejlechies, a celles qu'on pent appeler de ctrconstance, lois d'exception, etc., categoric dans la- quelle se place naturellement I'arret dont il s'agit. On pent aussi consulter, sur la desuetude, Solon, Traite des Nullites, Tome 1, chap. VI., De la Desuetude, p. 364 et suivantes, and also 9 Dalloz. Jurisp. Generale du . Royaume, vol. Lois, Sect. 7, Chap, des Lois and Merlin Questions de Droit, vol. Droits et EfFets public, Sect. L' )> In addition to the foregoing citations from jurists, it is true that non user cannot, as a general principle of English law, be invoked against an Act of Parliament, but it is equally a principle of the Municipal law of Lower-Ca- nada and of every country in which English Common Law, does not prevail as paramount to the Civil Law, that laws 60 i may go into desuetude. In Scotland, where the Civil law prevails, the principle of disuse applies even to Statutes themselves, which lose their force by desuetude if they have not been put into operation for sixty years. The framers of the Code Napoleon forcibly observe upon this point : " Les " Lois conservent leur effet tant qu'elles ne sont point abro- " gees par d'autres loix ou qu'elles ne sont point tombees " en desuetude. Si nous n'avons point forme! lement au- " torise le mode d'abrogation par la desuetude ou le non " usage, il eut ete peut-etre dangereux de le faire. Mais " peut-on se dissimuler I'influence et Putilite de ce concert " indelibere, de cette puissance invisible par laquelle sans " secousse et sans commotion, les peuples se font justice de " mauvaises lois et qui semblent proteger la societe contre les surprises faites au legislateur et le legislateur contre " lui-meme. — 2 Dwarris on Statutes, p. 673. a Upon this point therefore our municipal law is at va- ance with the common law of I in this respect in Lower Canada. riance with the common law of England which has no effet The facts stated at length above in connection with these Arrets and their provisions, appear to bring them within the principles of desuetude. The Arrets were evidently not made for any necessary or expedient remedial purpose, inasmuch as they were never inforced : no cause of com- plaint existed requiring their existence or their promul- gation, because the advisers of the Arrets admit, " that Seigniors do concede their lands at a redevance and that no complaints exist" ; they were, moreover, inapplicable to the state of the Country down to the Cession to Great Britain. It is scarcely necessary to repeat the assertion, that they have never had an operative effect since the Colony became a British dependency, and its w^onderful progress and advance in settlement and population since that time, are conclusive against any possible necessity for their existence from the close of the French dominion in Canada. 61? Having dieposed of these speculative matters, the im- portant practical questions in connection with the waters and water privileges so called now present themselves, and these must, of coarse, be considered in conection with the grants expressly or impliedly conveying them to the imme- diate grantees. The Royal proprietory grant necessarily included every thing technically lying within the terms of the grant, and corporeally within the limits of the estate granted. The general formula employed, included the description or spe- cification of the granted realty with its contents and boun- daries, of such extent in front and in depth, either bordering on a river if that were the case with " ensemble les rivieres^ ruisseaux et tout ce qui s^y trouve compris " or " ensemble ious les boiSy pres, isles, rivieres et lacs qui s''y trouvent " or " avec les rivieres^ ruisseaux et etangs si aucuns y a''"' ox'-'-jusqu'd la riviere icelle comprise''' or " /e long de la riviere avec les isles, islets, etc The only difficulty with respect to the waters, arose as to their inclusion in the grant and as to the riparian rights of the Seignior, where the granted estate was bounded or traversed by a river. The difficulty was susceptible of easy adjustment in France where the rules and principles of the feodal law were para- mount, where possession and prescription filled up all in- tervals, and where titles, if any existed, never or rarely ap- peared in the controversy. The riparian Seignior extended his proprietory grant to the mid stream ad filum aquce dividing his grant from that of his neighbour, and appro- priated the river traversing the seigniory entirely to himself, upon the principle of the feodal law as laid down by Guyot, p. 669. " It is a general customary principle that the entire " extent of the seigniory belongs to the feodal Seignior " either in useful or immediate property : hence the water " which runs over his land incontestably runs over the land 62* *' of the feudal Seignior." The property in the river in France was therefore a legal incident ofthe/?e/establishedby law apart from and independent of the technical construction of the terms of the grant. Herve, p. 363, de la Peche, says : " The Crown right of fishing is not domanial or inherent : " the right of fishing in the waters of its domaine or public " property is like that of individuals exercising their rights " on their private property ; but they do not hold their pis- " cary from the King more than they hold from him their " lands, fields, woods and all their property. These remarks " he says do not apply to special grants." The diversity in this respect between the Canadian grants and the tenure of France shews that the feodal incidents established in the latter cannot control or extend the terms of the former, which must be taken in their technical sense alone, subject to such legal construction as contracts conveying property necessa- rily bear, and to the operation of such general principles of the public law of the country as properly apply to them, for the simple reason that the lands were all held by grant. It must be observed that the land of Canada before grant and as it lay in grant, was a great allodium held by the King as the representative and for the benefit of the Nation, and that his grants only conveyed what they expressly compre- hended, and so far as they were not inconsistent with state policy, public laws or the restrictions and limitations of his grant. The grant to include rivers could therefore pass them subject to those limitations only as property, in the same manner as the property of the realty was passed, not as mere rights or privileges, and the operation of the grant wherever it affected the rivers at all, was to consider them as immoveable property. Henrion De Pansy in his 2 vol. pp. 639-40, says : " A navigable river is an immoveable, a " realty, in a word a material part of the domaine and as " such may belong to individuals ; it is subject to the gene- " ral laws affecting the alienation of the domaine. Hence " the King may alienate the bed of rivers in the same way 63 i " as all other parts of the domaine ;" and Pothier, Traite de Propriete^ No. 53, says : " As to non navigable rivers, " they belong to the different individuals who have title and " possession to qualify them as proprietors within the ex- " tent comprehended by their titles or their possession. " Those rivers which do not belong to individual proprietors " belong to the Seigniors Haut-Justiciers of the territory in " which they flow. No person is free to fish in them without " the permission of their proprietor." A great number of concurring authorities declare, that they belong to the King and form part of the domaine of the Crown, but subject to separation from it by special grant : thus the sol or bed of these rivers may be alienated like any other immoveable, but for that purpose particular and spe- cial words of grant, and the observance of certain forms, for the determination and fixation of the extent of the grant are specially needed and require. Mere general terms used in the grant are not sufficient. De Pansy, p. 644, 645, remarks : " A river navigable sans artifice or rendered na- " vigable at the King's expense is nothing but a royal high- " way. Great rivers and great roads have the same object, " the same destination, the same public interests and must " in many respects be governed by the same rules." This author then makes the very evident distinction between a natural navigable river and a proprietory unnavigable river rendered navigable at the expense of the Crown, " The former is absolutely within the King's domaine, but " the property of the sol or bed of the improved river is in " the proprietor, the grantee, any interference with it is a " privation by the Crown of the subject's property and can " only be admitted after indemnity made. The joint pro- " prety is reconcileable. Navigable rivers belong to the *' Crown on account of their importance ; the instances of " their grant to riparian proprietors are very rare ; but small " rivers having been included in the feodal grant with the " remainder of the estate, surplus du territoire^ form the pa- 64 11 ** trimony of the Seignior, who must submit to the sacrifice " on the Crown demand for the general interest ; the extent *' of the sacrifice however is controlled by the public ne- " cessity, which does not compel the Seignior to give up his " property in the sol or bed of the river and all his other " rights over it, but only its police or regulation during the *' period of its consecration to commerce : during that time, " the river in some sort becomes domanial, without however " becoming an integral part of the Crow-n domaine. Such " an improved river traversing a seigniory and made na- *' vigable by the Seignior himself, remains not only his pro- " perty but also subject to all his rights even to that of police " as before its improvement." So also 4 Herve, p. 249 ; Le Bret, p, 62 ; Freminville, p. 418. The latter says : " Streams and all rivers qui portent bateaux^ which are " called navigable, and floatable rivers belong in full pro- " perty to the King jure speciali although they traverse the " territory and justice of Seigniors. So also 6 Guyot 663. " 2 Henrys, p. 19, Quest. 41. Merlin Rep. vo. Peche, " p. 214, vo. Riviere, p. 541. The law, which subjects navigable rivers to the Crown domaine, is based upon the principle of the public interest ; whenever the river ceases to be navigable, the Crown rights over it cease also and those of the Seignior com- mence ; from that point the river becomes une petite riviere, une riviere seigneuriale, une riviere banale, and therefore the property of the grantee. Arret du 9 Mars 1651. 2 Hen- rys, p. 20 — 4 Herve, p. 250— Jousse on 41 Art. of 27 Tit. of Ord. of 1669. Whatever differences of opinion may have existed in France, as to the respective rights of the Haiit-Justiciers and Feodal Seigniors, on the subject of rivers, and their res- pective property and rights in and over them, no such dif- ference can exist in thi& country, because the grant of Haute- Justice as well as that of moyenne et basse justice almost invariably accompanied the grant of the property 65 i to ihe Royal grantee. The feodal rights attributed to this Haute- Justice., to control the use of rivers traversing a seigniory, as a regalian Royalty of general police either by grant or presumption, for the purpose of preventing the di- version of streams, removing impediments and interrup- tions to the employment of the rivers, the exclusive appro- priation of fisheries, islands, etc. and the regulation of fisheries by others, were not included in the Canadian grants, and could not therefore give toihe Canadian Seignior!^- any feodal privileges over rivers. The great Royal police control of the King, which unde- niably extended over his State and every property in it, also included rivers T\dthin it, because of their connection with commerce and public advantage. De Pansy, p. 640, 1, says : " Navigable rivers as well as the sea are assistant?? " to commerce, and as such belong to the entire nation, "' meme a toutes nations^ and are under the control and *' protection of the temporal sovereign : that is, the general " police and sovereign administration over the rivers must " be in the prerogative, for the conservation of governmen- " tal unity and the advancement and protection of the public " prosperity : hence it is a sovereign charge, enabling the " Crown to remove all obstacles to the improvement of pub- *' lie commerce and securing for the public every possible *' advantage from the free navigation of the rivers them- *' selves ; this right of police with its incidents, the right of " fishing, the construction of mills, &c., differs from the " rights of property in the rivers themselves ; the domaine *' and the sovereignty, the property of the Crown and the " rigths attached to the Crown are different and distinct ob- *' jects " and Freminville, p. 62 of his 4 vol. speaking oi this Royal property, police, &c., in all navigable streams, says : " It is so, not because the King owes his protection to *' strangers coiTiing into his dominions for commercial pur- *' poses, but for the sake of commerce itself as that which ** promotes the wealth of his Kingdom and the prosperity 66 { " of his people ; his power alone can provide for the police' " of his ports, rivers, &c., and if some Seigniors have the " droit de piche., de moulins et autres plus grcmds droits c'est " qu'ils sont fondes en titre. 6 Guyot, p. 663." These prin- ciples have received the unanimous approval of all the feudists, and Herve, 4 vol. p. 229 says that it is a principe constant in French law, and that the Ordonnance des eaux et forets of 1669 confirms the right, which is more ancient even than the Ordinance itself. It was in imitation of this regalian police control over navigable rivers, that Hauts-Justiciers in France assumed a similar right for similar objects over non navigable rivers, see 2 Henrion de De Pansy, pp. 639, 40, 41 ; Lacombe, vbo. Fleuve, p. 314 ; 4 Herve, p. 441, 454, 55. Renauldon, p. 387 ; but as these matters never were in their keeping nor exercise in Canada, their Haute-Justice as such, in this respect never existed legally over the non navigable rivers of the grant, and hence the authority to control the enjoyment of the river, as a feodal right, by withholding droit de p^che or preventing the construction of mills or manufactories, usines, on their banks, even if it had come down to the Ces- sion, absolutely died out with the Haute-Justice^ upon the occurrence of that event. From the foregoing it will be evident that the question is narrowed to the terms of the original grant and the legal construction to be put upon them ; and that a similar rule will apply to the subgrants or concessions from the Seig- niors to their Censitaires^ applying in both cases to the mere grant of certain real property. The grants to the Seigniors are not uniform, some bound the estate by the river, whilst some have the river com- prise, some include the navigable streams, whilst other in- clude the river with its banks, dattures, isles, islots, Sec. This absence of uniformity necessarily leads to the conclu- sion, that no particular or fixed principle governed the grant, which appears to have been drawn out, in many instances \ 67 i from the description of the estate gireu in by the grantee him- self in his application to the Crown, whilst the reasons ad- duced in the grant for its allowance plainly indicate the ei- feet of private influence ; in the construction of law how- ever, it must be presumed, that the King's grant did not con- vey more than was expressly and specially granted or intend- ed to be, without interfering with the public interests: whatever part of the common fund intrusted to the King for the common benefit, did not expressly pass by the clear and special words of the grant denoting the conveyance of an exclusive property or right, remained in the Crown for the benefit and advantage of the whole community and required a strict construction. A general enunciation, la ri- viere y comprise^ is therefor not sufi&ciently special or formal in law to convey the navigable stream in the proprietory grant, whilst the common rule of construction would include the non navigable stream traversing the grant, 4 Freminville, p. 430. Salvaing, ch. 7. D'Olive 2, ch. 3. Arret of 14 April 1628, Despeisses Droits Seigneuriaux^ lib. 5. art. 5. sect. 9. 6. Guyot^ lib. 5. Livoniere, p. 621. Renauldon, p. 365, because the latter, called Rivieres Ba- nales, Rivieres a Cens were actual property and considered as such, whether traversing or in any way included in the estate granted, or whether mentioned or not in the grant ; hence the right in them, as property in the grantees, was un- questionable. A navigable river boundary limited the es- tate granted to high water mark in tidal rivers, and to the high water line in other navigable streams, and the extension of those boundaries beyond those limits required a special express and peculiarly formal grant. A non navigable river boundary limited the estate to the mid water line or mid stream, including of course the ripa or river bank within the property of the grantee. These principles, consecrated by a host of jurists and legal commentators, are equally ap- plicable to the immediate or Royal grant and to the sub-grant or concession by the Seignior to his Censitaire, tenant, and will serve as grounds for the answers to be given upon the submission to us of these points. 68 z In addition to the realty conveyed as above stated, the immediate grants professed to convey other rights, such at^ the droit de justice specifying in some of them the Haute, Moyenne et Basse Justice and in others one or both of the latter tv^^o. It is unnecessary to investigate the ancient legal learning upon this subject, nor attempt to discover the origin of the right, whether as proceeding from agreement or usur- pation :• it is sufficient to observe that the maxim of the older law, point de fief sans justice, was replaced in later times by another maxim, fief et justice ri' ynt rieri de com- mvn, and that the territorial grants in which jW^i'ce was also mentioned should be examined in a technical sense in con- nection with the latter maxim. The terms appear to carry with them only the proprietory legal incidents of the grant oi justice, which consisted in the profits de justice, such as the droits de caduc.ite, de batardise, les epaves including wreck of the sea, the right of appropriating all vacant and unoccupied property in the seigniory, with all fines and con- fiscations. These rights were originally allowed to the Hauts-Justiciers as an indemnity for the expenses incurred by them in the administration of justice. Renauldon, p. 55, p. 8. Livoniere, p. 21, and others. No grant oi \\ve justice was made in this country disconnected from the realty ; it was exercised in only three or four instances, and, upon the Cession of the Country, under the influence of the establish- ment of a different system of judicature, ceased to exist either as a feudal or as a proprietory right ; it possesses no interest whatever in this discussion. The other rights professed to be conveyed, were droit de chasse et de peche et traite avec les Sauvages dans tout Peten- due de la seigneurie : none of which are exclusive. The droit de chasse even in France was not proprietory, it was merely honorific ; it never could be feodai or seigniorial in Canada, otherwise the droit de traite or traffic with the Indians granted in the same category, must have been feu- dal also. So little was chasse deemed exclusive or feodai 69 i in this country, that a variety of Ordinances and Arrets were made by the King's Council, by the Superior Council and by the Intendants, in which the general right to hunt in the wilderness was regulated in different and frequently con- tradictory ways at different times. The reasons given for its restriction to the nobility and gentlemen in France, are simply ridiculously inapplicable in Canada, where the trade in furs constituted the chief motive for the original occupation of the country. In France it was a Royal and noble pastime, in Canada it was a necessity, and conse- quently, whilst the legislation of the Colony regulated its exercise it did not deprive the people of its advantages. The trade in the skins of wild animals killed by hunting was the staple trade of the country during the French dominion, and must necessarily have been left free under certain regulations, which were rather de police than prohi- bitions, such as not going over seeded lands, and not going into the depths of the wilderness, to the encampments and hunting grounds of the Indians, without the Governor's per- mission, with others of like character. Charlevoix referring to the officers of Carignan's Regi- ment who had settled in the country, remarks, " ce qui peu- " pie le pays de gentilshommes dont la plupart ne sont a leur ^" aise : ils y seraient encore moins si le commerce ne leur etait " pas periniSy et si la chasse et la peche n'etaient pas id de " droit commun. On, chasse beaucoup^ quantite de gentils- " Iiommes n'ont guere que cette ressource pour vivre a leur " aise.'''' The droit de chasse was therefore, in no sense either patri- monial or feodal in Canada, although nominally granted witk the estate. The droit de piche was not more privileged. Thi» grant was exclusive, however, in a rery few instances such as the special grant to the Seminary of Quebec of the beach of their seigniory of Beaupre, and the case of one or two other seigniories, and in a very few special grant* an the shoes of the Gulf of St. Lawrence for the p^che d 70 z marsoiiins and others of that description, where the fishing was the express object of the grant ; the special grant in those instances prevented fishing witliin the limits of the gi-ant, except with the permission of the grantee, but at the same time proved the general freedom when no such spe- cial grant existed. Moreover, in the Royal Ratification of grants from the 6 of July 1711 inclusive, which confirmed a number of previous grants commencing in 1672, it wa« expressly and in terms conditioned, that the beaches of the rivers connected with the grants, should be left free for fish- ing, except what the Seignior might require for his private use, " de laisser les greves libres a tons pecheurs a Vexception " de celles dont Us {les Seigtieurs) auront hesoin pour leur " piche.^'' In all thes3 therefore, the peche cannot be con- sidered in the nature of a feodal right in Canada in the water of the river, or in the fish floating in it. The object of the grant and of the sub-grants, was the establishment of the colony : indeed the freedom of fishing could not well be prohibited ; for the men who first formed the settlements, could not have been expected to encounter the hardships, that unavoidably attended the first opening out the lands in this new world, and to people the banks of its bays and rivers, if the land under the water at their very doors, was liable to immediate appropriation by another as private property, and the settler upon the fast land thereby excluded from its enjoyment, or unable to take a fish from its water or fasten a stake or even bathe in its stream, without be- coming a trespasser upon the rights of others. The droit de peche was part of the common fund in the Colony, intrust- ed to the King for the common benefit, and could not be passed, as an exclusive right, without some special grant beyond the mere formula above mentioned, and such as was given in the Beaupre grant. The Arrets cited at the argu- ment in support of the prohibition, and the law authorities which distinctly applied to the droit de p^che SiS, o. known feodal right in France, are alike inapplicable in this Colony. The Arret of the Intendant, in the" matter of M. de Ramzay Hi against the Inhabitants of Sorel, prohibiting the inhabitants to fish in front of their own lands without the Seignior's per- mission, was not only illegal but arbitrary and unjust ; the grant of the seigniory did not contain even the usual for- mula, droit de pSche^ and the King's ratification of that grant commanded the freedom of beaches for all fishermen. The Arrit for the protection of the Seigniors of Beaupre, was in strict conformity with the special grant in that case, as also were some others, whilst the remaining'eight oxXen Arrets had reference, not so much to the protection of fishing rights, as to the inflicting of penalties upon strangers for trespassing upon property not their own nor in their possession. The situation of the Country and the wants of the inhabitants in new settlements, at considerable distances from each other, must necessarily have contemplated free hunting and free fishing, as a necessary means of subsistence, and were just so far and no more feodal and exclusive in the Seignior, as they happened to be mentioned specially in his grant from the Crown, and to no greater extent than the droit de traite avec les Indiens. The exclusive proposition is unsupported either by special words in the generality of the gi'ants or by common sense. This opinion is supported and strengthened by the report of the Governor and Intendant of 6 Oct, 1734 to the Home authorities, on the subject of the grant of the Augmentation of the Lake of Two Mountains to the Seminary of Mon- treal, in the ratification of which by the King, the clause of free beaches was left out ; these Officials remark, that it was an ancient protocol inserted in a great number of ratifica- tions of very early grants, and was not confined to Seign- iories only on the borders of the Sea : that the power to fish by the tenants, greatly facilitated settlements and improvements in concessions which would be less sought after, if that right were refused to new settlers, as by means of fishing, they were enabled to subsist at the commencement of the settlement and clearance ; moreover, that its reserva- tion in favour of the Seminary, in such a country as Canada, 72 i would be impossible, in as much as Seigniors could not pro- tect their droit de p^che, and that it would produce endless disputes and quarrels between Seigniors and Censitaires. The droit de traite avec les sauvages^ the right to trade with the Indians, is the last of the so-called specific privilegeSj which are mentioned in general terms in the immediate grants from the Crown. It is simply sufficient to deny the feudal right or character of this grant, as well as those of pe- che et chasse, all granted together in the same category and in immediate connection with each other, in very few cases with special words of exclusion, in favour of the Seignior. They plainly indicate the use of a common formula, impossible to enforce as positive exclusive rights in the Seignior, and clearly exorbitant of the feodalism, such as it was, to be found in the articles of the Custom of Paris. No feoda- lism could, by any possibility, attach either to the use or abuse or non-use of these rights, or to their retention or alienation : if indeed they were appreciable at all, they could be so, only as proprietory rights. Neither were the limitations and restrictions contained in the immediate grants, other than of a proprietory char- acter : they were all of a territorial nature and had in view, not the establishment of feodalism in the Colony^ but the carrying onward to completion, of the great princi- ple of settlement, and the securing to the State the advan- tages not feudal but mateiial in the realty described in the grant. Among these may be noticed, the condition for the discovery to the Crown, of mines and minerals in the estate granted, the conservation of all the oak timber on the granted estate for the construction of H. M. ships, the maintenance by the grantees of the public roads, the ap- propriation to the King's use of so much of the estate, as might at any time be required for fortifications and public works, with the necessary timber for their construction, and the fire-wood for the use of the garrisons ; of course the great condition of defrtchement overode the entire 73 z grant and all its stipulations and conditions, but in no way affected the right or title of the grantee in the estate conveyed. The conclusion plainly to be drawn from the foregoing details is evident, that the immediate grant was a full and entire conveyance of property, limited by one great condition only, the de frichement of the estate, that it was free from all feodalism or feudal incidents, except those expressly conditioned, that it was in fact the title to a full and perfect property in the grantee of the express contents of the Deed of grant and of all incidents, which the law ap- plicable to such grants would include within them. The remaining objects of interest submitted for our investigation are connected with sub-grants, or the con- cessions from the Seignior, to which cannot be denied the full proprietory character established by the grant from the King. The authors generally admit that the sub-granted estate is property in the tenant. Herve observes, p. 376, " in general, the tenant, le Censitaire may dispose of the censual land as he may think proper ; he may build upon it, destroy his buildings, make pleasure walks of it, &c, he has the absolute property of the domaine util e of his grant, and may use it as he shall think proper." hence it is a necessary legal inference that the tenant has a full title of property in his sub grant and it is idle to waste time upon this point. The charges affecting the grant, either expressly set out in itself or by implied operation of law from its terms, do not interfere with the right of property in the land granted, which is full and incommutable. These charges, are either conventional between the parties in the terms of the sub- grant, technically called the Deed of Concession or simply Concession, agreed upon between the sub grantor and grantee, or created by the plain operation of law. Of this latter, which will be first adverted to, the most important is Banalite, known to the English law, as " doing suit to the mill." 74 i The indispensable necessity for mills for the sustenance of families, naturally, not only compelled extensive landed proprietors to erect mills on their respective domains for the public advantage, but also enabled them to fetter their gift with the condition, that the inhabitants and residents within their respective Estates, should bring their corn to be ground at the mill so erected ; this was called in France droit de Banalite, and in England, " doing suit to the mill " ; it became a principle of customary law in France, and was gradually incorporated into the feudal system in force in the custom of Paris, as a legal right in the Seignior inde- pendent of title, and compulsory upon the inhabitants of his Seigniory. In 1580 this legal principle was, by the operation of the reformed 7, and 72 articles of that custom, altogether altered in effect, and the subjects of the Seigniors, were relieved from this duty, unless the Seignior had title to require it, custom thus being replaced by contract. In the settlements in this colony, the King's grants made no mention of this duty, and difficulties supervened which required the attention of the local Government, and which were afterwards settled and enforced finally by the Imperial authority. The interests of the Royal Grantees and the poverty of their tenants, naturally combined to compel the Seignior to erect mills for grinding the grain required for the sustenance of the inhabitants of their seigniories, and jus- tified the expectation, that all the grain required for such support, should be brought to the mill to be there ground for a customary toll. In this there was nothing of a feudal character, the tenant had not the means to erect the mill, and his Seignior was willing to make the outlay, provided he was protected against interference by others, and that a return for this expenditure was secured to him, this was in effect established by positive legislation. The very early legislation of the colony evidently con- templated such an arrangement and, undertook not only to 75 i enforce it, but arbitrarily established a rate and regnlations, by which both mill owner and mill employer should be go- verned. As early as 1667 within four years of the creation of the Superior Council at Quebec, upon a representation of mill owners, proprietaires de moulins de cepays, shewing the great expense incurred by them in the erection of their mills and in keeping them in good order, as well as in the high wages of their millers, exceeding those of old France, and their claims to a higher toll than that exacted or obtained in that country, the Superior Council of Quebec enacted, that one fourteenth should be the toll, and directed certain regula- tions to be observed by the millers, in weighing the grain before being ground and the flour after the milling. The Ordinance of the same Council in 1675, bannalizes all water and wind mills, then erected or to be erected by Sei- gniors in their seigniories, and directs the tenants who have agreed thereto by their concession deeds, to carry iheir grain to mill and there leave it for forty eight hours, after which, they might remove it elsewhere without claim of toll, if unground, concluding by prohibiting millers from collect- ing grain, out of their seigniories, for grinding under a penal- ty. Finally, in 1686, the King's Edict, charges all Sei- gniors of fiefs in New France to erect banal mills, sufficient for the subsistence of the inhabitants of their respective seigniories, and on their failing so to do within a specific time, gives the right oibanalite to any person who might erect such mill. The effect of this positive legislation was to abolish the 71 and 72 articles of the custom as regards the conventional banalite, and to establish a legal banalite in Canada in its place, at the same time investing the wind mill with the same character, of banalite unsustained by convention, as the water mill. Banalite has therefore in this colony been established by positive law, not by feudal right, and has been so declared and sustained by a long array of French and British judicial decisions. The doing suit to the mill, on the one hand, 76 » compelled the inhabitants of the Seigniory to " bring to the mill' all the grain which would be used in their family, whether gi'own in the Seigniory or imported into it for the purpose, and on the other hand interdicted all other persons from erecting or working such mills within the Seigniory, where a Banal Mill existed : without those means, the right would have been nugatory, and the outlay made by the Seignior, in obedience to the law and the Royal legis- lative, command, would have become injuriously burden- some, rather than profitable to him. It may be observed here that the discussions of French jurists upon the subject of Bnnalite in France are idle in this colony, in the face of positive law and a settled jurisprudence, and that as to the extent of the right, it is co-extensive with the Seigniory, but not beyond it, and affects not wheat alone, but all grain milled for the sustenance of the inhabitants of the Seigniory: a limitation of the right to ^vheat alone, might be highly detrimental to the mill owner, and could not have been contemplated by the Legislator : positive authority hais formally settled that point. 3 Nouv. Denisart vbo. Bana- lite, §111 p. 148, observes, " wheat alone is not the only gi'ain subject to the Banalite. All other grain is equally subject to it, wherefore all persons who use other grain are bound to employ the Seignior's mill." This very respec- table authority is precise. The various Arrets, ordinances and judgments of the Intendant on the subject of mills and Banalite de Moulin^ extends to the general inclusion of all grain capable of being manufactured ; the terms grains et bledsj bleds et autres grains are frequently found together in the same Arrets, in some grains alone, in others bled alone is used according to the circumstances of the case, evidently without design in the selection of the word ; and 5 Herve, p. 235, observes " the term " wheat" is more or less re- strained in our Customs: usage must be the guide for settling the extent of certain words used with reference to the right of champarty." No case has presented itself of a juridical character in this province, either extendining or 77* limiting the term, and no difficulty has arisen on that part of the matter of Banalite. It is only necessary to add, that Banalite is not absolutely connected with Rivers, because positive law has attachod that quality to wind as well as to water mills : that it is not a feodal right in the sense of the French authors as pro- ceeding from the mere possession of a Seigneurie^ but froDi the erection of a Seigneurial Mill in the possession of the Seignior, and lastly that it does not originate in this colony in the law of the Custom of Paris, but in the special Legislation made in or applied to the Colony and in the common law of France in reference to it. The concluding portion of this part of the subject embrace? the questions which apply to the reservations and prohib- tions contained in the concession deed. It might suffice simply to answer, that these are found in formal contracts entered into between the Seigniors and their Censt'tatres, and that such stipulations are in lalilu- dine voluntatis contralienlium. Both these grounds have been disputed, and it therefore becomes necessary to ascertain if that latitude of will has been controlled in either of the parlies. It is difficult to conceive on the one hand that any municipal law can interfere to prevent a C ensi taire {rom sub- mitting to the terms of a contract, voluntarily entered into by him, of which he has at no time complained, and which the public officers, the guardians of public rights and morals, have never questioned : it is moreover difficult to believe on the other hand, in the possibility of a legal interference to prevent a Seignior from stipulating in his own favour and in- terest, conditions and terms in the grant of his own property, not contrary to good morals nor to the express prohibitions of any public law. But how stands the case ? The absolute right of property of the Seignior in the estate granted to him is admitted, his voluntary and non-compulsory aliena- tion of any part of it has been demonstrated, and his perfect 78 « freedom to obtain the best terms in his own interest in the disposal of it, has been generally conceded. It has been shown that the Bail a cen.s, commonly called concession, was the most advantageous mode of parting with the estate in portions, to carry into effect the condition of defrichement^ and finally, that no quotite of cens was directed to be taken. The French jurists have harmoniously concurred in the principle asserted by Dumoulin, that " Dominus concedit ad tnodum quern vult^ Guyot already cited denominates this a " a primary principle," and declares "that the Seignior " concedes at his own conditions : it is for the vassal, or " rather for the applicant for a concession to accept or reject " it. The contract perfected is irrevocable for both." 1. Herve, p. 296, says : " The reason is that as both " Seignior and tenant are in the exercise of their just rights, " the Seignior may attach to his concessions his own con- " ditions, and that their acceptance by the vasssal is not " subject to be controlled or interfered with by other per- " sons, " Consessu vassalli facto, non licet quidquam immu- lare aid derogare. Renauldon, p. 173, says : " Censual " grants proceed from the Seignior's liberality or from con- " ventions freely entered into : it would be eminently unjust "not to sustain them, or at least faithfully to maintain the " stipulations solemly contracted between the parties." " Herve, 1 vol., p. 386, 389, 393, " Le troisieme " principe est que tous les devoirs que le vassal doit au seigneur, comme seigneur, outre la reconnais- " sance (de quelque espece qu'ils soient, et de quelque "maniere qu'ils aient ete etablis) sont censes dans I'usage " et I'etat actuel, etre la charge et la condition de Pinfeoda- " tion primitive, et I'effet d''une convention volontaire a " laquellc il rCest pas per mis de toucher.'''' " Le seigneur de son cote, ne peut etendre ses droits, " sous pretexte d'interpretation et de presomption de la " volonte des parties, lorsqu'elles ont contracte ; ce serait " ajouter au titre primitif, Non opporlet ab extraneo juT% " supplcri quod spontanea omissio repudiavit.^^ 79 e " En un mot ]e seigneur et le vassal ne peuvent ni Pun " ni I'autre rien changer au contrat sans un consentement " commun, mais ils peuvent, de concert, y apporter tel " changement et telle modification qu'ils jugeront a propos " en ce qui ne touche point a son essence. Nihil enim tdm " naturale est qudm eo genere quod que dissolvi quo cotliga- " turn est'"' It is unnecessary to multiply quotations in support of the principle above adverted to, but upon this point it is merely just to employ the language of Herve, already quoted ; " That all the services and obligations charged upon a con- " cession, including the cens formed a censual unity of " consideration, explaining the modicity of the ancient rate ; " that it was natural for an intending tenant to calculate the " whole charge and payment to be made, and to pay so " much less in money in proportion as his land was subject " to a number of services and obligations charged upon it." The reservations and prohibitions inquired of, have the legal character of a stipulated consideration for the grant of the land. The concession deed bail d cens^ between the Seignior and Censitaire^ containing those charges has ex- isted for an exceedingly long period, publicly and without contradiction, these charges have been constantly enforced in the Courts of justice as universally acknowledged and undoubted rights without objection, and the Seigniorial property of the country has changed hands more or less frequently since the cession with those charges included as part of the property sold or conveyed, and for which the price has been calculated and paid. Even if the charges inquired of were against the /M5 /?M6Z/ce/m or public law, it was in the perfect right of Seignior and Censitaire to make the agreement by which the concession should be charged with those reservations and prohibitions : this is the common case of volenti nonfit injuria, with which Courts of justice cannot gratuitously interfere. 80 ^ It is asseted, that because the Arrets of 1711 and 1732 require the concession to be made at a rent charge only, that this provision is preventive of the Reservations : this is clearly erroneous, because the direction in reference to the rent charges, was evidently dictated for a particular pur- pose, as antagonistic only to the complaint of the sale of wild lands, and for the purpose of restraining that job- bing alleged to be prejudicial to the colony and prevent- ing the increase of clearance and settlement. It will be seen that the penalty of the Arrets applies to all proprietors of wild lands as well as to Seigniors, and that no mention is made of the reservations in the terms of the Arrets. A general examination of these Arrets themselves is repugnan! to the interpretation desired to be put upon particular ex- pressions contained in them, as annulling the reservations or setting aside the stipulations as being contrary to the principle of public law implied in those expressions. The expressions referred to " it leur est permis seulement de con- cedrr a titre de redevance'''' in the preamble of the Arr4t of 1711 must be taken in connection with its context, with reference to the sale of wild lands, which is " contraire aux " intentio ns de S. M. et aux clauses des titres de coficessions ^^ par lesqiielles it leur est permis^'''' &c. as above ; and '"'' qu'ils " vendent en bois debout au lieu de les conceder simple- '■'■ ment a titre de redevance''' in the Arr^t of 1732, must likewise be taken in connection with its context, which refers to the Seigniors retaining " des domaines considerables " quHls vendent^'" &c,, as above. The entire language of the Ari'Sts, and the collocation of those expressions are oppos- ed to connection or reference with the stipulated reservation!"! inquired of : " on ne distingue point ou la loi n'^a pas dis- " tingue^ car c^est dans Pesprit de la loi qii'on doit en chercher " V interpretation^'' The maxim " modus et conventio vincunt le(/em" is only controlled by the other maxim ^^ fortior et " potenlior est dispositio legis quam /lominis" The Royal intention to promote settlement in itself alone, without de- clarative legislation or judicial exposition enforcing that Sli intention generally, is ineffectual to set aside a contract voluntarily made by Seignior and Censitaire, or to annul the reservations and prohibitions agreed upon between them. But in eveiy case of positive legislation, such as the positive law of Lower Canada with reference to the construction or Churches the clear assumption of a right and control over property without title and contrary to public usage, such as the prohibibition by Seigniors against the erection of manufactories usines on the banks of navigable streams, and against the use of the water of such streams for such manufactories, the reservation is a nullity clearly within the law, and must be declared to have no effect. The general principle of law, that contracts cannot be interfered with unless they are ille- gal, repugnant or impossible, none of which apply in this matter, will sustain the charges, which are moreover sup- ported by another principle " quilibet potest renunciare juri pro se introducto^'' every man can renounce a benefit which the law would have introduced for his own con- venience ; the inconvenience, if it be one, has been volun- tarily adopted by the Censitaire, and it is not for this tribu- nal to interfere with his own agreement. The principles above with respect to to the reservations apply equally to corvees, which are legal when stipulated. I will only add, that in the investigation of the questions submitted, the most prominent points for investigation were confined within the titles from the Crown and from the Seigniors, and the operative effect of the municipal laws of the colony upon the stipulations and conditions contained in them. The immediate and the sub grant in every instance was of a certain realty, conditioned to be held subject to the performancee of certain stipulated and agreed upon a render, as recognised and used in certain customs in France. The evident intention in both grants, was the conveyance of land in full and indisputable property, so long as the con- ditions of the grant were fulfilled, and the explanation and 82 i extent of those conditions were obtained in the provisions of the custom to which they had reference. Beyond those con- ditions the grantees were free agents and proprietors of their respective estates, and could in no way be interfered with by King or Seignior. It is idle to examine beyond this : The old French tribunals invariably sustained the right of property, and ahhough some of the Colonial officials were over zealous in their representations and applications for Imperial Legislation, which they never applied, upon m.atters of complaint, which had no real foundation, the Royal Legislator never by the strong hand, interfered with or cancelled his own grants, but left them to their full opera- tion. It is be3'-ond my power or inclination to consider these grants whether Royal or Seigniorial other than as deeds concerning property, which compels me to regard them as titles to property in the grantees, quite as sacred as those by which any description of realty may be held. The deeds themselves, their existence and their validity have been sustamed for nearly two centuries of French and British rule, by French and British Legislation ; and juris- prudence. Imperial and Colonial. The determination of questions of abstract right or possible defeasance, or mis- feasance, cannot affect contracts ; in them alone are their terms, extent and stipulations to be discovered and to these only when discovered, should the application of the muni- cipal law be made. It has been my desire to avoid all discussions arising from disputed questions of feudal or Seigniorial law, the origin of Seigniories in old France, and the rights and incidents belonging to them or their owners, and whether they were derived from grant or ex ' tortion: such questions were idle in reference to grants within a not distant period, which were submitted to us for investi- gation in their own terms, with the contemporaneous public and private history connected with them. It is from these that my opinion has been formed upon the matters sub- mitted, and on these has that opinion been expressed. A change was made by the Canada Trade Act, 3 Geo. 4 ch. 59, by which Seigniors were enabled to 83 i effect with the Crown a commutation of their Seigniories and of their ungranted lands, thereby extinguishing all Crown rights and dues on the Seigniory generally, and at once converting their unconceded lands from the tenure en fief into that of free and common soccage. . It is generally admitted that the unconceded lands so converted into free and common soccage were entirely and absolutely freed from all feudal incidents. As to the effect of the Statute upon the granted or con- ceded lands, it is expressly provided, that the commutation of the Seigniory effected by the Seignior, shall not interfere with the fe dual dues and duties of the tenants as they exist- ed at the time of the commutation, but that all and every such fedual Seigniorial or other rights shall continue and remain in full force upon, and in respect of such lands. The Imperial legislation provides for a voluntary commu- tation and release of the feudal burthens upon the conceded lands, for a just and reasonable price, indemnity or consi- deration to be established by private agreement or by experts chosen by the parties, to be paid to the Seignior for the same by the tenant, whereupon the tenure of free and common soc- cage became substituted for the feudal, in the conceded land : but the feudal rights shall continue between Seignior and tenant unlil the changes shall be fully effected, as pro- vided in the terms of the statute above mentioned. The Imperial law is enabling not mandatory in its cha- racter, and in whatever instance it has been carried into effect by the Seignior, would appear to be conclusive of his rights, as well as of colonial legislation with respect to them. The section 2 of 6 Geo. 4, ch. 659 provides, " pro- " vided always, &c., that where such first grant as afore- " said shall be made, nothing in this act contained shall " extend or be construed to extend to take away, diminish " alter or in any manner or way affect the feodal, seignio- 84 i " rial or other rights of the Seignior or person in whose fa- " voiir such gi-ant shall be made upon and in respect of all " and every the lands held of him, &c., as aforesaid, mak- " ing part of his Jief or seigniory, in which a commutation " of the droit de quint^ SfC.^ shall have been obtained as " aforesaid, but that all and every such rights shall con- " tinue and remain in full force upon and in respect of such " lands and the proprietors and holders of the same as if " such commutation or grant had not been made, until a " commutation, release and extinguishment shall have been " obtained in the manner hereinafter mentioned." The clear and unambiguous terms of the Statute and of the foregoing proviso in particular, remove all possible hesi- tancy upon the inapplicability of provincial legislation to the disturbance of or interference with the rights of the commuted Seignior, until the Censitaires shall have them- selves taken advantage of the law : and the House of As- sembly of Canada in its address to H. M. of the 29 August 1851 praying for the repeal of those Imperial Statutes, in their relation to the tenure of Canadian lands, professes to abstain from such interference ; in addition to which the following language in relation to Canadian Legislation on the subject, is to be found in the Official Report of the Attorney General, dated 26 January 1852, prepared for the information of and transmitted to the Home authorities for their guidance. " The rights acquired by the holders of these fiefs, naming several commuted seigniories, as well as those of all others who have taken advantage of the facilities accorded to them by the Imperial enactments, should of course, be maintained as suggested in the address now under conside- ration. The Imperial Parliament is not called upon to any interference with rights acquired under the enactments com- plained of, but to prevent individual holders oifiefs not yet commuted from availing themselves of the Imperial Statutes, to deprive the bond fide settler of rights acquired to him under the preceding laws of Canada, namely, the right of claming unconceded lands in seigniories, upon the 85 i payitient of a moderate rent, which the proprietors oifiefs prevent by converting them into a free tenure under the Imperial Acts." These complaints do not appear to be sup- ported by law and are set aside by the act of 1854. Nothinof has since that time occurred to alter the relative position of parties in the commu.ted seigniories, and the Sei- gniorial Act of 1854 cannot affect them or be put in opera- tion in any such seigniory, nor in seigniories or lands com- muted under provincial Statutes, which have ceased to exist, by the provisions of the Seigniorial Act. It has been objected that the Seigniorial Act of 1854, can- not coexist with the Imperial Statutes as not only being in;- jmri materi but as being also repugnant to them. It miglit be sufficient to observe that the Imperial Statutes are not man- datory but enabling, and only become mandatory upon the fnll advantage being taken of the facility offered, and that Sei- gniors and other proprietors who have not taken advantage of their facilities, have not intended to avail themselves of those provisions and facilities, and that as to them the maxim applies volenti non fit injuria. In fact however, there is no such repugnancy between the Imperial and Colonial Legis- lation, as prevents the operation of the Act of 1854. The 14 Geo. 3, which secured to the inhabitants of Ca- nada their property and possessions together with all cus- toms and usages relative thereto, also subjected all matters in controversy relative to property, &c. and civil rights, to the laws of Canada until these should be varied by subsequent competent authority. The first constitutional holders of that authority derived their power from the Imperial Act 31 Geo. 3, ch. 31, which constituted a provincial Legislature for Lower Canada, and gave that Legislature the power of making laws not repugnant to the Act of its creation, and provided, that all such laws passed and assented to by the Governor should be valid and binding laws in the province, subject however to disallowance by the Sovereign within 86 2 two years, and to becoming ipsto facto void after the signifi- cation of the Sovereign's pleasure of disallowance thereof ; this Act also restricted to a certain extent the action of the Colonial legislature on the subject of religious classes, but did not interfere with or limit its legislative power over the tenure of the Country. The Union Act of Upper and Lower Canada 3 and 4 Vict. ch. 35, also provides, for the validity and binding effect to all intents and purposes of all laws passed by the Colo- nial Legislature and assented to by the Governor in H. JNI. name, such laws not being repugnant to that Act or to such parts of the 31 Geo. 3, as were not thereby repealed or to any Act of parliament made or to be made and not thereby re- pealed extending to Canada ; but these laws are also sub- ject to Royal dissallowance within two years after their re- ceipt by the Secretary of State, and to being declared void and null after the signification of H. M. pleasure of dis- allowance. The Union Act also limited the les^islative delegation with reference to Ecclesiastical and Crown rights, but did not restrict legislation upon the tenure of the Country. In the interval of the dissallowance of any existing Co- lonial Act, and until its dissallowance, it was valid and bind- ing in the Colony. It appears therefore that by the Imperial Act 14 Geo. 3, the laws and customs of Canada with reference to property and possessions in Canada, were to remain in force until varied or altered by any Ordinance to be passed by the Governor and Council, a power afterwards vested in the Provincial Legislature of L. C. by the Imperial Act 31 Geo. 3, and continued to the present time in the United Legislature by the Imperial Act 3 and 4 Vict. ch. 35, unless that power shall have been restricted or repealed by other Imperial Legislation, v/hich is said to exist in the two Canada Trade and Tenure Acts alone. The former declares, that doubts exist whether 87 i the tenure of lands in Upper and Lower Canada holden in fief and seigneurie^ can legally be changed, and provides that holders of lands in fief and seigniory may surrender them to the Sovereign and may petition for their re-grant in free and common soccage, which shall be accorded on payment of an agreed upon commutation, to be applied to the administration of justice and the support of the Civil Government in the Province. The latter 6 Geo. 4 making further provision in the matter provides, that any pro- prietor of a fief or Seigniory in Lower Canada having lands therein granted by and held of him u Litre de fief or a cens, on petition therefore and surrender of the ungranted lands, in the fief or Seigniory, and on pay- ment of the agreed upon commutation, shall have his fef and Seigniory and lands freed from all Royal Seigniorial rights and burthens, and shall receive a re-grant of all the unconceded lands in the tenure of free and common soccage. It must be observed with reference to this Act, that it is facultative merely, enabling the Seigniors at their pleasure to obtain the tenure advantages offered, and thereupon authorizing their tenants at the pleasure of these last, to com- pel the Seignior to commute their conceded lands into the tenm'e of free and common soccage. In the Imperial Statutes the voluntary principle for action and commutation is adopted, but there are no restrictive words or limitations upon the powers of the colonial legislature to enact compulsory mode of commutation for such Seigniors as are not willing to take advantage of the Imperial Legis- lation, which contains no mandate upon them to adopt its provisions, and which might therefore remain for ever un- applied for, to the public disadvantage in this matter, if it could be considered as restrictive of Colonial Legislation. Wherever the Seignior has omitted to secure the operation of the Imperial Statutes, they are a dead letter, and the right of Colonial Legislation at once takes effect. Moreover it is clear, that the Imperial Legislation of the Union Act, 3 & 4 Victoria, passed since the Canada 88 « Trade and Tenure Acts, has validated and given l)inding effect in the colony to the Seigniorial Act of 1854, from the time of its assent by the Governor, wherever it can legally apply, as in uncommuted Seigniories, and that all acts done under it are legal, until the disallowance of the Provincial Act shall have been signified. This is carrying out the principle laid down by Dwarris on Statutes, 2 vol. p. 999 in which he says : " Acts however, passed in a " Colony without a suspending clause, immediately that " they are assented to by the Governor, become and con- " tinue in force till notice is given of their being disallow- " ed." He then illustrates the rule by reference to the course of proceedings, adoped in England by the Commis- sioners of legal inquiry for the colonies, and thus proceeds : " from the preceding statement it appears, that comparative- " ly few of the Statutes passed in the Colonies receive " direct confirmation or disallowance of the King. It is " clearly understood, that so long as this prerogative is not " exercised, the Act continues in force under the qualified " assent which is given by the Governor in the Colony itself, " on behalf of the King ;" and this doctrine is affirmed ipsissimis verbis by Clarke, in his Colonial law, p. p. 41, 2, 3, 4. From the foregoing, therefore, it is evident that the Act of 1854 is good law in the Colony, that it does not operate in commuted Seigniors, but that it applies in all other cases, suspending the /«CM/^e of the Colonial subject, under the tjnabling Imperial Statutes, and preventing him from taking advantage of its provisions. It is true that the Constitution of the United States has formally extended to the Supreme Court, the necessary power and authority to question ths legality of any Legisla- tive Act, whether made by the General or by a State Legislature ; but this has arisen from the peculiar federative union of the different Sovereign States in one large body, and their agreement to submitthe constitutionality of their laws to 89 i some independent arbiter who will confine them within the terms of their written constitution or constitutional com- pact because inthat sense the interpretation or construction of the constitution or compact, is as mnch a judicial Act and as much requires the exercise of the same legal dis- cretion in the interpretation or construction, as of a law. In England the generally received doctrine certainly is, that an Act of Parliament, of which the terms are explicit and the meaning plain, cannot be question- ed, or its authority controlled in any Court of Jus- ice. This principle applies equally in this Pro- vince, where we may be held to obey Provincial Legis- laton, whilst it is equally our duty to shew in what manner it may conflict with the paramount Legislation of the Empire. It only remains to be observed, that the judgment pro- nounced upon the various questions of the Attorney General, contains the answers which it has beenconsidered expedient to give, to them. Page ERRATA In Opinion of Hon : Judge Badgley. 16 6 line, read, or any other mode of. 17 1 line, " and the Bishop with. 22 22 line, " 395. 31 27 line, omit, as. 41 17 line, " was thereby provided. (( 34 line, read, 251. 57 4 line, " observe. 59 29 line. " it may be observed as true. 63 17 line, " required. 65 18 line, " territorial sovereign. 73 17 line. " 5 Herve 86. 74 14 line. « 71 and 72. 75 20 line, " millers, under a penalty. (( 21 line, omit, under a penalty. 78 19 line. read, consensu. 81 6 line. " of churches and in the assumption. (( 16 line. " charges with above exceptions, and t< 32 line, " of a certain. (( " " omit, a, before render. 83 12, 14 lines, read, feudal. {( 22 line, read, become. ;4 OPINION OF THE HOAORABLE JUDGE MEREDITH. PART I. CENSET RENTES. Section 1. Rights of Seigniors under the Custom of Paris, as to the concession of their lands. The learned Counsel, in their able and elaborate argu- ments, have treated the . important subject which now en- gages our attention, under four distinct heads : . 1st. The annual rents, cens et rentes, payable to Seigniors ; 2d. The nature and extent of the right of banalite ; 3d. The rights of Seigniors in the rivers watering their seigniories ; 4th. The reservations and prohibitions stipulated in the contracts of concession between the Seigniors and the Censi- taires. In the remarks which I am about to make, I shall adopt this division of the subject, which appears natural and con- venient, slightly altering however the order from that given above, so as to make my observations on the fourth head (the reservations and prohibitions) follow immediately those on the first — the cens et rentes ; as it appears to me that the questions, under both these heads, must be determined by a reference to the same principles and rules of law. 2h According to this division of the subject, the question first in order, as it is first in importance, among those to be considered is the following : "Under the law, as it existed in this country immediate- " ly before the passing of the Seigniorial Act of 1854, have " CensitaireSj to whom seigniorial concessions have been " made after the cession, at higher rates than those that " were customary before that time, a right to be relieved " from those onerous dues ? " (1) On the part of the Crown it is contended, that the Sei- gniors were under a legal obligation to concede their wild lands, at an annual rent not exceeding two sols per arpent ; and that the concession deeds, between the Seigniors and their Censitaires, in so far as they purport to secure to the Seigniors a higher rate of rent, than two sols per arpent, are illegal ; and that the rents stipulated therein, whenever they are above that rate, should be reduced to it. To enable us to answer this question, we must ascertain what was the law of France on this subject, at the time that law was introduced into Canada ; and then consider how far the question is affected by subsequent legislation for the Colony, or by the titles under which the Seigniors hold their fiefs. Some time was allowed to elapse after the first settlement of the Country, without any express provision having been made, to determine what portion of the laws of France should be observed in this Colony ; but such a provision was plainly necessary ; for France was then divided into the pays de droit ecrit, in which the Roman law generally obtained, and the pays de droit coutumier, in the different parts of which about 60 general, and 300 special or local Customs, had force of law. (2) (1) Question of Attorney General, no. 25. (2) Repertoire de Guyot, vol. 5, p 14.5. On compte environ 60 Coutumes gene- ral«3 dans lo Royaume, c'est-a-dire, qui sont observees dans one province enti6re, et environ 300 Coutuaaes locales qui no sont observees que dans une Beule ville, bourg, ou village. 3^ By the edict of 1663, establishing the Consdl Superieufy that Court was required to observe the laws and ordinances of France, and to proceed as nearly as possible according to the practice of the Parlemefit de Paris, Further provi- sion on this subject however was required ; for the general laws and ordinances of France, did not regulate the tenure of land, and were silent on a variety of other subjects, in relation to which it was necessary that the Colony should have some certain rules of law. We find accordingly that the Edict, establishing the West India Company, bearing date the following year, in art. 33, declares that " the Judges appointed in the said " places (Canada being one of them) will be held to give " Judgment according to the laws and ordinances of the " realm ; and the officers of Justice bound to follow and to " comply with the Custom of Paris ; according to which, ^' the inhabitants shall enter into contracts, without its " being lawful to introduce any other Custom in order to ■" ensure uniformity." Some persons hold that the Custom of Paris became of necessity the law of the Colony as soon as the country was settled by subjects of the French Crown. But this is not cer- tain. On the contrary, according to the President Bouhier, (1) Guyot, and many other Jurists, that Custom had no greater authority, than any other beyond the territory for which it was specially framed. (2) We find, as a matter of fact, however, that a number of the grants, made even before 1663, refer expressly to the Custom of Paris as the law by which the Colony was to be governed ; (3) while a few refer to the Custom of the Vexin (1) Bouhier, vol. 1, p. 373, Coutume de Bourgogne. (2) Repertoire de Guyot, vol. 5, p. 145, speaking of the Custom of Paris. " EIIo " n'a pas plus d'autorite que les autres hors de son territoire." But see Ferriere, Diet, de droit, vol. 1, p. 590, and Coutume do Paris, 1 vol. pp. 19 and 21, folio edition. (3) See the grants nos. 15, 17, 19, 20, 21, 22, 23, 25, 27, 28 in Mr. Dunkin'a abstract — The usual words are as follows, or to the following eifeet : '• Le tout sui- " vant et conformement a la Coutume de la Prevot6 et Vicomte de Paris, que la com- " pagnie entend etre observee et gardee par toute la Nouvelle-France." See also no. 12 of 1 Deer. 1637, in which I believe the Custom of Paris is first referred to as regulating the grant ; see also no. 14. 4h le Francais, as the rule under which they were to be held j but the Vexin le Francais was merely a particular usage,, observed within part of the " PrevoUet Vicomte de Parish We need not however dwell upon this point, as, for our purposes, it is enough to know that in 1664, the Custom of Paris became part of the common law of Canada. This being the case, we have next to consider, what, under that Custom, was the rule of law, as to the question under examination. On this point, there is no room for doubt. Under the Cus- tom of Paris, it is certain that a Seignior was not obliged to concede any part of his fief ; and that, when he did concede any portion of it a litre de cens^ the conditions of the con- cession deed, bail a cens, as to the rent to be paid, and as to the reservations and prohibitions in favour of the Seignior, were purely matters of agreement, between the parties, who had the same liberty of contracting, when they entered into a deed of concession, as they had in making any other contract. I do not dwell upon these points, however important they may be, for they are, as I understand, admitted by the Counsel for the Crown ; nor do I deem it necessary to cite authorities ; for the opinions of all the most esteemed "writers on the feudal law, have been collected and quoted by the learned presiding chief Justice. Indeed I am not aware, that any writer, either ancient or modern, has ex- pressed a doubt as to the law on this subject, under the Custom of Paris. If then, the owners of Jiefs.m Canada had not the right of conceding their lands on the most favourable terms for themselves, the restriction in this respect, of their common law rights, must have had its origin, either in the laws made for the Colony, or in the titles under which they hold their Jiefs. In addition therefore, to examining our Colonial laws on ihis subject, which however important they may be, are few and simple, I have deemed it my duty to examine all the grants of seigniories in Lower Canada, printed under the authority of our Government ; and after giving to the whole the best consideration in my power, I have arrived at the conclusion, that, although before the first of the arrets of Marly, the owners oi fiefs in. Canada, generally speaking, were under an obligation more or less stringent, to settle on their lands, and to cause them to be improved ; yet that the legal obligation to sub-concede, was first established by the ai'ret of Marly, and that even according to that arrSt, the parties to a deed of concession were competent to make any agreement they thought fit, as to the rent and charges to be established in favour of the Seignior ; provided the conditions agreed upon, were not opposed either to the ex- press provisions or to the obvious policy of the law. If all the Judges regarded the arrSi of Marly in the same light, it might perhaps be needless, upon the present oc- casion, to advert to any of the laws, or to the title deeds, anterior to it in date. But several of the Members of tliis Court consider that arret as being merely declaratory of a pre-existing obligation ; while other members of the Court are of opinion, with me, that the arrSt in question, in com- pelling Seigniors to sub-concede, imposed upon them an obligation, unknown to the common law, and not justified by the terms of a majority of the grants then in force. In order then to see what was in truth the legal position of Seigniors, in relation to their fiefs, at the time of the passing ol the arr^t in question, and thus to obtain light by which we may be enabled the better to read the provisions of that most important law, I propose to examine all the prior laws on the same subject, and also all the grants en jief made before the date of its promulgation. 6h Section 2. Charter by which Louis the ISth granted Canada to the Com- pany of the hundred associates, afterwards called the Com- pany of la Nouvelle France. The first Act to which reference is necessary for the pur- pose mentioned in the concluding observations of the fore- going section, is that by which Louis the 13th established the Company of the hundred associates, and gave to them the veiy extensive territory then known as New France or Canada. This charter is generally represented by the opponents of the Seigniors' claims, as having subjected the Company to an obligation to sub-concede the land granted to them ; and the obligation thus supposed to have been contracted by them, is alleged to have passed to their sub-feudatories, and then by some means (not clearly explained) to have been trans- mitted to all persons, who afterwards held lands en fief in Canada, whether through the company or otherwise. The provisions of an act, which is supposed to have pro- duced such important consequences, demand doubtless the most attentive consideration. The object of the King in establishing the Company of the hundred associates (afterwards known as the Company of New France,) are very clearly announced in the preamble, which has already been read and commented on by the other members of the Court. The principal obligations contracted by the Company are contained in the first section of the act. (( C'est a savoir que les dits de Roquemont, Houel, La- " taignant, Dablon, Duchesne et Castillon, tant pour " eux que pour les autres faisant le nombre de cent, leurs " associes, promettront faire passer au dit pays de la Nou- " velle France, deux a trois cents hommes de tous metiers " des I'annee prochaine 1628, et pendant les annees sui- " vantes enangmenterle nombre jusqu'aquatre mille de Pun " et de I'autre sexe, dans quinze ans prochainement venans, " et qui finiront en decembre, que I'on comptera 1643, les " y loger, nourrir et entretenir de toutes choses generale- " ment quelconques, necessaires a la vie pendant trois ans " seulement, lesquels expires, les dits associes seront de- " charges, si bon leur semble, de leur nourriture et entrete- " nement, en leur assignant la quantite de terres defrichees " suffisantes pour leur subvenir, avec le ble necessaire pour " les ensemencer la premiere fois, et pour vivre jusqu'a la " reeolte lors prochaine, ou autrement leur pourvoir en telle " sorte qa'ils puissent de leur industrie et travail subsister " au dit pays, et s'y entretenir par eux-memes." The expense of conveying 4000 persons from France to Canada, and providing them with board and lodging, and all things necssary for their subsistence for three years, would even at the present day be very great ; but when we bear in mind the length of time that was then taken to cross the Atlantic, the risk and dangers attending the voyage, the tonnage of the vessels, and the state of the colony in which the settlement was to be made ; we cannot fail to see, that the cost of carrying out such an undertaking now, would be small indeed, compared with what it must have been in the early part of the 1 7th century. As throwing light upon the onerous nature of the obligation thus assumed by the Com- pany, I may mention that it appears from Chalmers' Poli- tical annals of the Colonies, that in 1630 (just two years after the creation of the Company of la Nouvelle France)^ the expense of conveying 1500 emigrants, with the Officers, required by their charter, from Southampton to Salem in new England, amounted to upwards of one hundred and twenty thousand pounds (1), and that the transportation of people and provisions to Maryland, during tlie first two years of the settlement of that Colony, cost Lord Baltimore, (1) Chalmers, p. 151. the projDrietary, (1) £40,000 ; large sums, especially when we consider the great difference between the value of money at that day and at present. I notice the magnitude of the obligations assumed by the Company of la Nouvelle France^ because the charter granted to that Company has generally been treated, as if it contai- ned a gratuitous donation from the King to the adventurers. The second section in the charter of the Company pro- vides for the peopling of the Country with natural born french subjects professing the Roman Catholic religion. The third section compels the Company, at their own ex- pense, to make provision for the conversion of the Savage tribes, and for affording the consolations of religion to the French who settled in New France. This obligation also was far from being merely nominal. One of the main objects of the King of France, in providing for the settlement of the Colony, as stated in the charter now under consideration, and in the other similar documents of those times, was the propagation of the Christian religion ; and the numerous and important grants made from time to time in the Colony to various religious bodies, show that that object was not neglected. The fourth and fifth sections are those setting forth the principal rights given to the Company and are as follows. " lY. Et pour aucunement recompenser la dite compa- " gnie, des grands frais et avances qu'il lui conviendra faire " pour parvenir a la dite peuplade, entretien et conservation " d'icelle, Sa Majeste donneia a perpetuite aux dits cent " associes, leurs hoirs et ayans cause, en tonte propriete, jus- " tice et seigneurie le fort et habitation de Quebec, avec " tout le dit pays de la Nouvelle France, dite Canada, tout " le long des cotes depuis la Floride, que les predeccsseurs (1) Chalmers, p. 207. " rois de Sa Majeste ont fait habiter, en rangeant les cotes " de la mer jusqu'au cercle Arclique pour latitude, et de " longitude depuis I'Isle de Terre Neuve, tirant a I'ouest " jusqu'au Grand Lac, dit la Mer Douce, et au dela, que " dedans les terres et le long des rivieres qui ypassent, et se ^' dechargent dans le fleuve appele Saint-Laurent, autrement " la Grande Riviere de Canada, et dans tous les autres " fleuves qui les portent a la mer, terres, mines, minieres, " pour jouir toutefois des dites mines conformement a I'or- " donnance, ports et havres, fleuves, rivieres, etangs, isles, " islots et generalement toute I'etendue du dit pays au long " et au large et par de la, tant et si avant qu'ils pourront " etendre et faire connoitre le nom de Sa Majeste, ne se " reservant Sa dite Majeste que le ressort de la foy et hom- " mage qui lui sera portee, et a ses successeurs rois, par les " dits associes ou Pun d'eux, avec une couronne d'or du " poids de huit marcs a chaque mutation de rois, et la pro- " vision des officiers de la justice souveraine, qui lui seront " nommes et presenles par les dits associes lorsqu'il sera " juge a propos d'y en etablir : permettant aux dits associes " faire fondre canons, boulets, forger toutes sortes d'armes " offensives et defensives, faire poudre a canon, batir et " fortifier places, et faire generalement es dits lieux toutes " choses necessaires, soit pour la surete du dit pays, soit " pour la conservation du commerce. " V. Pourront les dits associes ameliorer et amena2;er les " dites terres, ainsi qu'ils verront etre a faire, et icelles dis- " tribuer a ceux qui habiteront le dit pays et autres en telle " quantite et ainsi qu'ils jugeront a propos ; lear donner et " attribuer tels titres et honneurs, droits, pouvoirs et facultes " qu'ils jugeront etre bon, besoin et necessaire, selon les " qualites, conditions et merites des personnes, et genera- " lement a telles charges, reserves et conditions qu'ils ver- " ront bon etre. Et neanmoins en cas d'erection de duches, " marquisats, comtes et baronnies, seront prises lettres de " confirmation de Sa Majeste sur la presentation de men 10 h " dit seigneur grand-maitre, chef et surintendant general de " la navigation et commerce de France." By the ninth section His Majesty undertook to give the Company two vessels of war, of two or three hundred tons, equipped and ready for sea, which the Company were to. victual and to man with such commanders, soldiers and sailors as they might think fit ; the said vessels to be kept in order by the Company and to be employed for their benefit and advantage ; and in the event of their deteriora- tion from any cause whatsoever (save and except the vessels being taken in open warfare by His Majesty's enemies), the Company were obliged to substitute others in their place ; such other vessels to be kept in a fit and proper state for the advantage of the Company. It is thought by some of the learned Judges, that under this charter, the Company were obliged to concede the wild land of Canada to any French subject wishing to settle there ; but in this opinion, I am unable to concur. Had it been intended to subject the Company to such an obligation, it would obviously have been necessary to make some pro- vision as to the terms upon which they might be compelled to make concessions of land ; whereas nothing of the kind was done. If the power of determining the terms had been left to the Company, the supposed obligation in favour of the public, could not have been enforced ; and if that power had been given to the King, there would, in effect, have been no grant to the Company. The terms of the act however, according to my views, negative in the plainest manner the existence of any such obligation. The grant is made a. perpetuite aux dits cent associes, leurs Iwirs et ayans cause^ en toute propriete^ justice et seigneurie ; the only limitation, in relation to these land, being in the words 2^our jouir toutefois des dites mines conformement a Vordonnance. The Company it is true undertook to convey to the Co- lony 4000 persons, and to provide them with " board and 11 h " lodging and all things generally, which may be necessary " to life, during three years, after which period the said as- " sociates will be discharged, if they so desire it, from the " obligation of providing for them, (the persons so to be " conveyed to the Colony) by giving them a stifficientquan- " titqj of cleared land to enable them to support themselves," or to provide for them otherwise in such way, that they might by their labour and industry, subsist in the said Country and support themselves. But assuredly from this qualified obligation to grant cleared land to 4000 persons, we cannot infer an obligation to grant uncleared land to all their fellow subjects. The only other w^ords in the act, referring directly to the subgranting of land by the Company, are those to be found in the fifth section already quoted ; but I cannot comprehend how the clause, " it will be lawful for the said associates " to improve and ameliorate the said lands as they may " deem it necessary and destribute the same to those who " will inhabit the said country and to others in such quan- " titles and in such manner as they will think proper ", can be converted into an obligation, to grant land in such quantities or in such manner as any person or persona,, other than the Company, might think proper. There can be no doubt that the King desired, as the pre- amble to the act declares, to establish a powerful Colony in his north American dominions ; but we must recollect, that the Colony was to be founded, mainly by the exertions and with the means of the Company ; and we must therefore consider, not merely, what were the intentions or wishes of the King as one of the contracting parties, but, what were the terms and conditions agreed upon by both parties ; and we have no right in looking for those terms or conditions to go beyond the charter ; which was prepared evidently w4th much ability and care, and which is very explicit as to the nature and extent of the rights and obligations of the Com- pany. 12 h It is however contended, that, ahhongh the charter does not in express terms contain an obligation to sub-concede, yet such an obligation must necessarily be inferred from the nature of the grant. For my part I must say, that I cannot see in the facts, anything to warrant such an inference. I find that four years after the grant of Canada to the Company of la Nouvelle France, Charles the first of England granted the province of Maine to Sir Ferdinando Georges ; that seven years afterwards he granted Maryland to Lord Baltimore, and that Charles the 2nd in his time granted Pennsylvania to the celebrated Wm. Penn ; and yet notwithstanding the vast extent of the territory thus granted, it never, so far as I am aware, has been supposed that the grantees could be compelled to alienate any portion of the land granted to them. Story at p. llOof the first vol. of his Commentaries on the constitution of the United States, says : " that the charter cons- " tituted Penn the true and absolute proprietary of the Ter: " ritory thus described." And at the next page he says : " Penn immediately invited emigration to his province by " holding out concessions of a very liberal nature to all " settlers." Thus admitting as a matter of course, that Penn could hold out such concessions as he thought fit. •o' The mode in which these and many other like grants, were made by English Sovereigns, and colonies esta- blished under them at least in some cases (1), shows that a new country can be settled, without subjecting the pro- prietaries, as they were then termed, to an obligation to make subsfrants. '&' The fact that Canada was given en fief does not make in this respect any difference : for a grantee oi fief, by the common law, is not under any greater obligation to alienate (1) Story, same yol. p. 94. 13^ any portion of his property, than a gi'antee in free and common soccage. Upon the whole then, I am of opinijon that the obligation to sub-concede, which certainly was not imposed upon the Company by the express terms of their grant, and which is at variance, with the whole spirit of the feudal tenure, can- not, as has been contended, be inferred from the nature of that grant, or from the circumstances under which it was made. The King of France probably felt satisfied, that the in- terests of the state, and those of the Company, in this res- pect were identical. If experience had shown this not to be the case, the King for the public good, by his legislative power, could have deprive the Company of the whole, or of a part of the land granted to them ; not rightfully however without giving them a reasonable indemnity. Section 3. Seigniorial grants by the Company of la Nouvelle France. From 1623, until 1663, excepting for a short time, afte'r the taking of Quebec by the English, in 1629, Canada re- mained in possession of the Company of la Nouvelle France. Daring the existence of that Company, they made about twenty eight extensive seigniorial grants (1) in Canada ; to each of which I shall now advert, in so far, and in so far only, as they relate to the clearing or sub-conceding of the land granted. I confine myself to the conditions bearing on these points^ because it is only in so far as the Seigniors were subject to the obligation of sub-conceding their lands, that it is con- (1) The Company also granted several small lots of land en ^ef, but these from their size, did not admit of sub-concessions being made in them, for agricultural purposes. It is therefore needless to refer particularly to the conditions contained in those grants. See no. 40, Mr. Dunkin's abstract, 40 or 50, arp. granted en Jitf. No. 44, 200 arpens enfef—Ao, 10 arp. enfief. uk tended, or can be contended that their right of property as ■Seigniors was limited. The 13th legal proposition submitted to our consideration by the Crown Officers is in the follow- ing terms : " The ancient laws of the Country oblige the *' proprietors oifiefs and seigniories in Canada to concede " their lands a titre de redevances, when thereunto required, " and their right of property in those lands was limited and ^' restricted by such obligation to concede." The right of property in the Seigniors is here distinctly and rightly ad- mitted, and the limitation or restriction contended for, is that only which results from the supposed obligation to con- cede. No one who has read the titles under which the fiefs in Canada have been granted, can hesitate to admit (if the obligation to sub-concede be left out of the question) that the owners of them, have as high and as extensive estates, in those Jiefs, as it is possible for Seigniors to have in their fiefs under the Custom of Paris. The most zealous advocates of the interests of the Censi- taires, do not contend that there is any thing in the nature of a trust or agency, in the estate which Seigniors have in that part of the lands which they clear themselves, nor in the domaine direct which they retain in the lands which they concede. The supposed trust is confined to the uncon- ceded land, and is founded on the obligation to concede the same. I therefore deem it unnecessary to dwell upon the portions of those titles which convey a right of property to the Seigniors. That right is not, cannot be denied ; all that is contended for, against the Seigniors is, that this right of ownership was limited as regards uncleared land, by an obligation to concede it. What I now wish to show is, that the obligation in question was not established prior to the arrit of 1711. In adverting to each of the titles for the sake of facility of reference, I shall speak of each Jief under the number, and by the name given to it in Mr. Dunkin's abstract ; which I have found most useful. Indeed without some such 15 h work, as the titles have not been printed according to the order of their dates, it would be impossible to form an exact idea, as to the conditions of the grants, at any par- ticular period ; or as to the change that took place, in those conditions, according as the settlement of the Country ad- vanced. Following then the numbers given in Mr. Dunkin's ab- stract, we find that two of the printed grants were made be- fore the Charter of 1628 to the Company of New France, which has already engaged our attention. Grant from the Duke of Ventadour, Vice-roy of New-France to Louis Hebert. No. 1. — 28 February 1826. — This deed in the recital sets forth that the grantee, Louis Hebert, was the head of the first French family settled in Canada, that he had established him- self on certain lands " near the Great River St. Lawrence " at the " place called Quebec ;" that he had " by his labour " and industry assisted by his domestic servants " cleared a certain portion of said lands, enclosed the same and built a house thereon, &c., of ail which he had obtained from the Duke de Montmorency the previous Vice-roy " the gift and grant *' in perpetuity by Letters patent dated the 4th Feb. 1623." The deed then, for the above " stated considerations, and " in order to encourage those who might thereafter desire to " people and inhabit the said Country of Canada ", ratifies the grant which had been so made to the said Hebert, " to " have and to hold the same in fief noble unto him, his heirs '' and assigns for ever as his own lawfully acquired property, " and dispose thereof fully and peaceably, as he may think " proper, the whole depending on the Fort and Castle of " Quebec, subject to the charges and conditions which shall " hereafter be imposed by us." The same deed contains in favour of the same grantee, his successors, heirs and assigns, " a grant of the Fief St. Joseph 16 h or Epinay " to possess, clear, cultivate and inhabit the same " as he may deem fit on the same conditions as the first do- " nation." No. 2. — 10 March 1626, is a grant by the same Vice-roy to the Rev. Jesuit Fathers, " as a perpetual and irrevocable " donation " of the seigniory of Notre-Dame des Anges — " it being our will that they peaceably enjoy all the woods, " lakes, ponds, rivers, rivulets, &c., &c., which may be " found within the limits of the said lands, on which they " shall have the right of erecting, if they think fit, an habita- " tion, dwelling noviciate or seminaiy for themselves, and " to educate and instruct the children of the Savages," This grant contains no further conditions as to settlement, and does not either directly or indirectly refer to any obligation to sub-concede. We now come to the first grant made by the Company of la NouveUe France. No. 3. — 15 January 1634, Beauport. — This deed of con- cession recites the willingness of the Company to distribute the land of the Company to men " able to have them cleared and cultivated " ; — but does not contain any stipulation as to the clearing or sub-infeudation of the land by the grantee. It does however contain a clause to the following effect : " That the land should be held subject to fealty and homage, " which the grantee should render by one full homage at " each mutation of possession of the said land, with a piece " of gold weighing one ounce, and one years revenue of " what the grantee shall have reserved to himself, after he " shall have granted en fief ox d cens et rentes the whole or part of the said land." (( The learned Counsel for the Crown, drew our attention particularly to this clause, which is also to be found in a lew of the subsequent grants ; but I must say it does not appear to me to have much bearing upon the present con- n h troversy. It abolishes the droit de quiiit^ and modifies the droit de reliefs in relation to the fiefs to which it applies ; but it cannot be regarded as compelling the grantees to sub- infeudate the land granted to them, and indeed has no ten- dency in that direction. The clause in question doubtless contemplates the proba- bility of sub-concessions being made ; but this assuredly affords no proof of a legal obligation to make such sub-con- cessions. The only other stipulation in the grant no. 3 of Beauport, having any direct bearing upon the improvement of the land granted, is the following : " That the men, " whom the said Giffard or his successors, shall send to New- " France, shall serve to the discharge of the Company in di- " minution of the number which it- is obliged to send to " that Country, and, to that end, he shall deliver each year a " list of them at the office of the Company." No. 4, — 16 february 1634, the next grant, is one of 600 arpens, near Three-Rivers, to the Jesuits, &c. It contains these words : " to cultivate and erect the necessary build- " ings on which (said cract of land) the said Rev. Fathers " shall send such persons as they may choose ; — and when " the said Rev. Fathers send persons to cultivate the said " lands, they shall every year transmit a list of them to the " office of our said Company, so that it may be assured " thereof, and so far discharged, they being deducted from " the number of those whom it is obliged to send over, &c." Grant no. 5, of Lauzon ; no. 6, Beaupre ; no. 7, Isle Orleans ; no. 8, confirmation of grant of Notre-Dame d^s Anges ; contain clauses to the same effect as to the men to be taken out by the grantees. (1) No. 10, part of Grondines, a grant to the Duchess d'Ai guillon for the Hotel-Dieu, near Quebec, contains a like obligation. (2) (1) No. 9 is a grant of 12 arpens, site of Jesuits' «ollege. (2) No. 1 1 not printed. 18^ No. 12, part of Dautre. The mode in which the obli- gation to furnish the list of men is worded in this grant, shows the importance the Company attached to it. " And the " sieur Bourdon and his successors — as well as others to " whom grants have been made, shall be held to hand, in " every year, to the secretary of the Company, a list of the " men whom they shall send over to New France, so that the " Company may know by how many the Colony shall have " been augmented." No.' 14, Deschambault. — " And the said Chavigny (grantee) " shall send at least four working men, quatrehommes de tra- " vail.) to commence the clearing, besides his wife and ser- " vant maid, and that, by the first ships which will sail from " Dieppe or la Rochelle, together with goods and provisions " for their support during three years." No. 24 is another grant to the same person on the same conditions. List of men to be delivered each year. No. 15, a portion of the Island of Montreal and St. Sulpice. Grantees prohibited from conceding lands to persons already in Colony. — Grants to be made to those only who may be willing to go there for the express purpose of settling thereon so that the Colony may be so much the more extended ; an' in order to commence the settlement of the said granted lands, the said grantees shall be held to send to New France a number of men by the first shipment which the Company shall make, with the provisions necessary for their food, and shall continue from year to year, so that the said lands shall not remain uncultivated, and that the said Colony may be so much extended. List of men to be forwarded annually by secretary. No. 16 is King's ratification, &c. No. 17, Riviere du Sud or St. Thomas, — contains no direct 19 h obligation to send men. In the preamble, the readiness of the Company to make grants to those " willing to under " take the cultivation of some portion of the lands granted " to our Company ", is set forth ; and the settlement of the lands granted is referred to indirectly thus ; neither the said (grantee), nor his successors, nor any other persons, ivho may go to the Country to inhabit and cultivate the lands hereinabove conceded, shall have the ris-ht of tradina; for skins and furs with the Indians, &c. No. 19, grant of part of Dautre ; nos. 20 and 25, St. Gabriel and St. Ignace ; no. 21, Portneuf; no. 22, Repentigny, La- chenaie and I'Assomption ; no. 23, Becancour ; are all made in effect on same condition as no. 17, that is to say, without any express obligation either to sub-concede or to clear ; the intention of settling on the land being however adverted to in the preamble, as an inducement to the grant ; and the duty of clearing the land being indirectly adverted to among the conditions of the deed, thus : " Neither the said (grantee), " his successors or assigns, nor any other persons who may " go to the Country to inhabit and cultivate the aforesaid lands, shall have the power to trade for skins, &c." a No. 27. The grant of Vieux Pont (5 square leagues) is made in consideration of the " zeal (of the grantee) for the " extension of the Colony, he having already brought under " cultivation several laii^s which we have heretofore " granted to him," subject to feudal and seigniorial dues agreabl}^ to the Custom of Paris, — but without any other conditions. No. 28, Jacques Cartier, is, as to conditions, same as no. 27, Vieux Pont. No. 29, Sillery, confirmed by no. 30, is a grant to the Jesuit Fathers for the benefit of certain converted Indians, and is made without any conditions as to settlement, &c. 20 h No. 32 is also a grant to Jesuit Fathers, Notre-Dame des Anges, &c., not subject to any conditions as to settlement. In the recital in the deed we find these words : " Et de plus " que, par leurs constitutions, ils ne peuvent accepter aucune " fondation qui les oblige a autres charges, qu'a celles aux- " quelle s, en consequence de leur institut et de leurs voeux, " ils se tiennent volontairement, et desquelles ils s'acquittent " si dignement, qu'il n'est pas juste de les y contraindre, ni " honneste de le stipuler d'eux." No. 33, Gaudarville. The grant mentions in the recital that the grantee " is desirous with time of settling in New-France, " and causing lands to be cleared, improved and occupied " by as many families as possible, in order to fortify the " Country against those who might be disposed to make any " attempt upon it." The grant however contains no condi- tion as to clearing or sub-conceding. No. 34 annuls the grants nos. 14 and 24 to Francois de Chavigny, on the ground that he had left the Colony " and abandoned all that he possessed there" and regrants the lands on the conditions of the former grant to the wife of said Chavigny. No. 34 h is grant of St. Ignace, | league by 10, to the Rev. 3Ieres Hospitalieres de Quebec^ without any condition as to clearing or sub-conceding. No. 35, augmentation of grant no. 3 to GifTard of Beau- port ; — no new conditions. No. 36. Grant of Mille Vaches ; — no condition as to clearing or conceding. No. 37, augmentation of Gaudarville, — recites continual irruptions of the Iroquois, massacres of inhabitants, aban- donment of the place, &c., so that it runs the risk of being ei.tirely lost on account of its not being within the reach of 21 A assistance, and its wanting the presence of some powerful person, who, with the aid of his friends, might withstand the efforts of those barbarians, by causing some place of refuge reduit to be erected there, and judging that Louis de Lau- zon, Seignior of La Citiere and Gaudarville might under- take the defence of the said post, &c. ; — grant made and on condition of fealty and payment of one year's revenue at each mutation ; — no condition expressed as to clearing or sub-conceding. No. 38, Neuville or Pointe aux Trembles ; no. 39, St. Etienne ; No. 41, St. Rochdes Aunais. — No. condition as to clearing or sub-conceding. No. 43, A. D. 1656, Point du Lac or Tonnancour. This 'grant is more explicit as to the settlement duties that are to be performed than any of those that precede it. The words are as follows, " the said (grantee) shall cause " the said lands to be inhabited throughout their extent, and " work to be done thereon within four years from this date." But the mode of fulfilling those obligations is left altogether to the discretion of the grantee. No. 46, part of Montreal, on same condition as former grant of part of same seigniory, viz : no. 15. This is the last of the grants en fief of any considerable extent, (1) made by the Company of la Nouvelle France ; and it appears to me sufficiently plain that they did not sub- ject the grantees to any obligation to sub-concede the land granted to them. Assuredly an obligation to sub-concede, is not expressed in any one of those grants ; and when we bear in mind that such an obligation was unknown under the Custom of Paris, which is referred to in many of the grants, as the rule by which they were to be governed ; it (1) After this date, by title no. 47, certain small islands were added by the Com- pany to the sei^iory of Becaneour, and by no. 43, Jean Bourdon's-boiise and 60 arpents of land were erected into ajief; but for the reasons already mentioned it is needless to refer to the conditions of these titles. 22 h seems manifest, that if that obligation had been contem- plated by the parties, it would have been expressed : whereas not only is no such obligation contained in any of the deeds ; but in some of them the power to alienate was expressly limited. (1) SECTIOJf 4. Seigmorial grants by West India Company. Early, in the year 1663, Louis the fourteenth deter- mined to re-unite Canada to the Crown of France ; and the company of la Nonvelle France^ which was then far from being in a prosperous state, having become aware of the King's intention, on the 24 febry. 1663, executed a deed of surrender, which was accepted by His Majesty. In the following year, a charter was granted to the French West India Company ; under the first article of which the Lee- ward islands, Canada, Acadia, Virginia, Florida, &c., &c., were granted to the said Company " in full property and " seigniory with rights of justice, &c." The permanent proprietary rights of the Company were, by subsequent clauses, (2) limited to such lands as the Company should conquer, inhabit or cause to be inhabited, cojiquerir et habiter^ during the period of forty years for which they were to have, under their charter, the exclusive trade of the countries granted to them. There is nothing in tliis second charter which requires the new Company to sub-concede any part of the land granted to them, on the contrary, under the 23d clause, they could in this respect pursue wiiatever course they deemed best. That clause is as follows : " The said Company shall " have povmr to sell^ or dispose of the said land by way of (1) See titles 3, 12, 15. (2) Sec. 19. of the charter of the French West India Company. Edits et Ordon nances, vol. 1, p. 45. 23 h " enfeofment, either in the said Islands or continent of Ame- " rica, or elsewhere in (lie countries granted ttpon pai/nient " of J atidfor such cens ei rentes^ and other seigniorial rights " as may be deemed proper^ and to such persons as the Com- " pany may deem fit." Having thus very briefly adverted to the rights conferred on the West India Company, I now pass to the conside- ration of the grants made after the date of the charter to that Company. — No. 49 is the first of those grants. — It is a grant to the Jesuit fathers, of a small tract of land, and was made on same conditions as the grant no. 4, hereinbefore referred to. (1) No. 51, Ste. Marie, is merely the promise of a grant, and was made " in order that the grantee might work the- reon immediately." No. 52, Labadie — was made on condition that the grantee shall cause work to be immediately performed thereon and render the same lUDre valuable " — a la charge d'y faire tra- " vailler incessamment, et la mettre en valeur suivant et " conforraement aux intentions du Roi." No. 53, Tonnancour : — " A la charge d'y faire travailler suivant les intentions du Roi." No. 54. By this grant which is direct from the Crown, Desilets is erected into a Barony and three Royal Burghs are attached thereto. The grant recites, as the reason of the conferring of the dignity, that the grantee had cleared the property called Desilets, and that the King was de- sirous to promote the settlement of Ne-W" France by marks of honour where grants well cleared, &c. No. 55, D'orvilliers. — This is the first of a number of grants made about this time to the officers of regiment of (1) This grant was made before tho registration at Quebec of the charter in favour of West India Company. 24 h Carignan, which was disbanded in Canada on condition that the men should receive land and settle there. (1) The preamble is very foil, and explains clearly the in- tentions of the French authorities at that time and is therefore given at length. (2) " His Majesty having always sought with care and that " zeal which is suitable to his just title of eldest son of " the church, the means of making known in the most un- " known countries by the propagation of the faith and diffu- " sion of the gospel, the glory of God and the christian name, " first and principal object of establishing the french " Colony in Canada, and accessorily of making known to " the parts of the eartli remotest from the intercourse with " civilized men, the greatness of his name and the strength " of his arms, and having judged that there were no " surer means to that effect than to compose this colony " of persons properly qualified to fill it up, to ex- " tend it by their labour and application to agriculture and to " maintain it by a vigorous defence against the insults and " attacks to which it might be exposed hereafter, has sent " to this Country a number of his faithful subjects, officers " of his troops in the regiment of Carignan and others, most " of them, agreably to the great and pious designs of his Ma- " jesty, being willing to connect themselves with the Country " by forming therein settlements and seigniories of an " extent proportioned to their means ; and the said, &c., &c., " having petitioned us to grant him a part thereof, we, &c., " &c." The conditions as to settlement are : " That the grantee " shall keep house a«d home on his seigniory within one " year ; and that he shall stipulate in the title deeds which " he shall give to his tenants, that they shall be obliged " within one year to reside and keep house and home on (1) Garneau, Tol. 1, p. 202. (2) A preamble in nearly the same words is to be found in several of the grants made ahout this time. 25 /i " ihe concessions which he shall have granted to them, and " that, in default thereof, he shall le-enter pleno jure into the " possession of the said lands." This is one of the clauses which, it has been contended, show that Seigniors were under an obligation to sub-in- feudate their lands ; but in my opinion it merely establishes that the making of such concessions was deemed probable, as it certainly was ; and the Company therefore stipulated, that the persons receiving grants from the Seignior, should, as to the performance of settlement duties, be subject to an obligation in favour of the Seignior, similar to that con- tracted by the Seignior in favour of the Company. It cannot however be contended that, because the grantee of a^e/" un- dertook to insert certain conditions in any concession made by him ; that therefore he undertook to grant such conces- sions deeds to any persons asking for them. After the grant no. 55, about (1) 64 other grants of ^e/i were made in Canada, during the time it was in the posses- sion of the West India Company ; and in about 59 of these grants, conditions similar to those last mentioned, viz : those of grant 55, or some other of the same nature and having the same object in view, are to be found, sometimes in one form, and sometimes in another. (2) (1) Exclusive of small augmentations of grants, Ac. (2) viz.no. 61 1672 Ste Anne de la Parade, 62 do Isle Ste Therese, 63 do Contrecceur, 64 do Berthier, 6.5 do St. Ours, 66 67 68 da do do Varennes et Tremblay, Tilly, Sorel, 69 70 do do Durantaye, Isle Morau, 71 do Lavaltrie, 72 do Chambly, 73 do On Richelieu, 74 75 do do Isle au portage, Nicolet, 76 do Isle Perrot, 77 do Ste Anne de la Pocatiere, 73 do Riviere Quelle, 26 h . ' In four of the later grants, made during the existence of the West India Company, the condition obliging the grantee to keep house and home is omitted and in lieu of it, we find a clause in the following words : " And moreover " subject to the charge and condition that the said Sieur. . . . " shall, within three years, begin to cause the said tract of " land to be brought under cultivation, and the same to be " surveyed and bounded within the said space of time, in Vercheres, Eerthier en laaut, Isle Bouchard, Lussaudiere, Eellevne, Bouclierville, Beaumont, On Riv. I'Assomption, Part of Longueuil, Part of Masquinonge, Isle Jesus, Gros bois or Yamachiche, Part of Masquinonge, Vincelot, Chicot et Isle au pas, Pointe du Lac et Tonnancour — part 3, Labadie, Maranda, Part of LotbiniSre, Lepinay, etc, Lachevrotiere, Ste Marie, Gatineau, Grondines, Bonsecours, Maranda, Guillaudiere, I.sle Fortunee, Yincennes, Part of Lotbinifere, On Riv des Prairies, Ste Marie, T. R. part, Riv. du Loup, en haut, Isle Bourdon, St. Joseph or Fournier, Eelair or Ecureuils, Lusson, Chateauguay, Deschailons, Berthier, en haut, augmentation, Kamouraska, 131, 132, 133, 134, are augmentations to former grants and do not require notice. Great variety will be found in the clause.^ as to the keeping of house and home. In 1-15, St. Maurice, the clause is worded thus. " La dite, etc., se continuera de tenir et faire tenir feu et lieu sur la dite seigneurie " 184, Lotbinicre. " Qu'il y tiendra ou fera tenir feu et lieu par les particuliers ii. qui il accordera des terres, etc." 231, Augn. Yincelot. " Bt que les habitants seront obliges d'y tenir feu et lieu." Ami also 235, 232, augn. of Lotbinicre "Et faire tenir feu et lieu aux habitants " qu'ils y pourront placer " no. 79 do 80 do 81 do 82 do 83 do 84 do 8i do 86 do 87 do 88 do 89 do 90 do 91 do 92 do 93 do 94 do 95 do 96 do 97 do 98 do 99 do 100 do 101 do 102 do 103 do 104 do 105 do 106 do 107 do 108 do 109 do 110 do 111 do 112 do 113 do 114 do 115 do 121 1673 127 1674 129 do 130 do 21 h " default of the fulfilment of which conditions, the land con- " tained in the said concession shall be re-annexed to the " domain of the Company, who shall have the right to dis- " pose of them as they may think fit." This condition is to be found in the grants nos. 123, 124, 125 and 126, excepting that by the grant no. 124, the clearing is required to be commenced in 2 years instead of in 3 years as mentioned in the other three. The condition as to the clearing in no. 135, (Petite Nation, 1764), which is the last grant made by the West India Company, is a follows : " The grantee shall be bound " within four years to commence making clearances upon " the said concession, unless he be prevented fi-om so doing " by war or other reasonable cause ; and that the boundaries " shall be fixed at the two extremities of the said con- " cession, &c., failing which, the Company shall have a right " of disposing, &c., &c." In 1774, the West India Company gave up their charter to the Crown, on condition of being reimbursed the Capital expensed by them, and then remaining unpaid, amounting to 3,523,000 livres, which in the edict revoking the charter, is treated as so much lost on the capital stock. The fate which attended this Company, and the Company of New France, and which they shared in common with nearly all the great Companies established for the coloniza- tion of North America, (1) shows that grants of territory however extensive, made on condition of settlement, were far from being as profitable as they might at first sight have seemed to be. (1) Chalmers, p. 95, political annals of Colonies. 28 /i Section '5. Grants subsequent to dissolution of West India Company and down to arret of Marly^. From the end of the administration of the affairs of the Colony by the West India Company, until the promulgation of the celebrated arrM of Marly, in 1711, about 114 sei- gniorial grants were made in Canada. * Of these about 34 (1) were made upon the conditions, which we have found in so many of the grants made by the West India Company, as to the keeping of house and home Roquetaille, Mitis, &e., Longueuil, Isle St. Paul, part of, do do St. Maurice, Gentilly, Isle au Castor, Rheaume, Isle Bouchard, Islet St. Jean, Port Joli, Vercheres et augn. St. Frangois du Lac, &c., Isle Bizard, Isle Mingan, St. Denis, Riviere do la Magdelaine, Anticosti, Isle a la fourche, Lotbiniere, Trois-Pistoles, * Bonsecours, Rimouski, Lanoraie, Grande AUeo des Monts, Ste. Marguerite, Martiniere, Vincelot augn. Lac Mitis, Augn. Lotbiniere, Durantaye, Lake Madapediac, Lus8audi5re. on the land granted. (1) no. 136 1675 137 do 142 1676 143 do 144 do 145 do •146 do 149 1677 150 do 151 do 152 do 153 do 154 1678 155 do 156 do 157 1679 158 do 159 do 161 1680 166 do 184 1685 186 1687 . 187 do 190 1688 191 do 219 1691 221 do 228 1692 231 1693 232 do 235 do 237 do 245 1694 258 1695 29 li In about 15, (1) of the 114 grants, made between the dis- solution of the West India Company and the arret of 1711, the grantee is required to commence to clear his land within a specified time ; and in about 32 (2) other grants made during the same interval, the grantee is obliged not merely " to begin to clear " but " to clear " the land granted ; a certain time being mentioned In some ?>f the grants for the fulfilment of that obligation, in others not. (n no. 197 1688 St. Anne des Monts, 198 1689 Riviere Mitis, 233 1693 Dauteuil, 234 do Fossambault, 243 1684 EouviUe, 244 do Beloeil, 246 do Ft. Denis, 255 1695 On Richelieu, 256 do Cournoyer, 259 do On Richelieu, 260 de On Richelieu, 264 do Beauehemin, 266 do Grand Pre, 327 1701 St. Charles, 347 1706 St. Paul. Each of the above fifteen grants contains a clause as to the keeping of house and home, excepting no. 197, St. Anne des Monts, and no. 198. riviere Mitis. (2) 167 16S2 Bonhomme or Belair, 168 1683 Eboulemens, 169 do Riviere du Loup, en haut, 170 do Isle Madame, &c., 173 do Lussaudiere, 174 do Plerreville, 175 do Baie St. Antoine, 176 do Yamaska, 178 do Madawaska, &c.. 181 1684 Isle verte. 271 1696 Lessard, 274 do Desaulnets or Chaudifire, 282 do Grand Pabos, 283 do Lepage and Thibierge, 284 do Port Daniel, 285 1697 St. Anne de la Parade, 298 do Riv. de Bonaventure, 300 do Jolliet, 301 do Lepage and Thibierge angn., 304 do Grande Riviere, 303 1698 Hubert, 321 1700 Augn St. Anne de la Parade, 325 1701 Lepinay, 328 do St. Jean, 333 1702 On river Etchemin, 334 do Bonsecours, 336 do Soulanges, 337 do Vaudreuil, 344 1705 Carufel, 345 1706 Belair or Ecurenils, 353 1707 Pasbebiac, 365 1711 Ste. Marie. Each of the above thirty two grants contams a clause as to the keepirg of house and home, excepting no. 234, Port Daniel. 20^ There are a few grants made within the same period, that is to say, from 1674, when the charter of the West India Com- pany terminated, until 17 1 1, date of the arrit of Marly, which do not come within any of the foregoing classes, and which I therefore notice separately, but as succinctly as possible. Nos. 138, 171, 203, 273, 299, are additions to former grants the conditions of which are made applicable to the additio- nal grants. No. 214, includes a like additional grant. Nos. 160, 180, 188, 189, 293, 302, 306, 307, 310 and 320, relate to Islands or greves adjacent to former grants which are added thereto. Nos. 164, 165, 286, 312 et 313, are grants for religious purposes, and do not impose any obligation as to clearing or sub-conceding; — and no. 214, includes a grant for a like purposes. — Nos. 302 et 305, are granted for a fishery and slateqaarry respectively. No. 177. Beaumont contains the clause as to the keeping of house and home, and further requires that the said grantee shall " furnish the said land and seigniory with buildings and cattle," — et garnira la dite terre et seigneurie de buti- mens et bestiaux. No. 31 1, A. D. 1698, augmentation of Longueuil, is made in consideration of grantee having expended 60,000, on a former grant and contains no conditions as to clearing or sub-con- ceding. The seigniory of Longueuil w^as afterwards erected into a Barony for distinguished services of the " Lemoine " family. See no. 326. No. 354, A. D. 1708, Monnoir, contains a clause as to the keeping of house and home, and another requiring the grantee " to clear and cause to be cleared the said land after the present war ;" but the first only of these obligations is made a cause of forfeiture. The proviso is thus worded, " the « said grantee shall be held to have these presents confirmed 31 h " within one year, and after the said confirmation shall have " been obtained and the present war ended, in default of his " keeping house and home thereon within one year the " said concession shall be re-united to His Majesty's do- " main." This grant was made to the Siem- Ramsay, Governor of Montreal, who probably knowing that the im- mediate clearance of the land granted was utterly imprac- ticable, caused his grant to be so worded, as to prevent it from being liable to forfeiture, for the non-fulfilment of a condition, the accomplishment of which was impossible. No. 355, A. D. 1708, Bourg-Marie ; no. 361, A. D. 1710, augmentation of Longueuil ; no. 362, A. D. 1710, Montarville ; no. 363, A. D. 1710; De Ramsay — are made upon conditions in substance the same as those in the grant 354, of Monnoir just adverted to. No. 364, A.D. 1711, augmentation of Grondines — the last grant but one befoi'e the arr^t of 1711, is made in conside- ration of services ot the grantee as Capitaine de Milice de sa cdte for a period of 20 years, and of his having a large fami- ly, and contains no conditions as to clearing or sub-con- ceding. Here it is to be observed, that £j,lthough but comparatively few of the grants prior to 1711, contain a condition requiring the grantee to clear the land granted, yet as early as 1676, the King of France, in his instructions to Messrs. Frontenac and Duchesneau, ordered that the concessions of land should be made upon condition that the land should be cleared and improved within 6 years from the date of the grant. — Messrs. Frontenac and Duchesneau seem to have paid np attention to this order, for although they made numerous grants be- tween 1676 and 1680, that condition is not to be found in any one of those grants. The successors of Frontenac and Duchesneau, namely, Messrs. De La Barre and Demeules, inserted the condition in question in almost all the deeds granted by them during the first five years of their adminis- 32 /i tratioii. But in 1685 they granted the augmentation of Lolbi- niere to the Sieur De Lotbiniere, then Lieut. General of the Prevote de Quebec^ ^vithout that clause ; and in a conside- rable number of deeds, later in date than that just mentioned, the condition in question is also omitted. It is not the less true however, that many of the grantees, who subsequently to 1676, obtained land without any condition as to the clear- ing of the land, were, by the royal ratifications of their grants, expressly subject to the obligation of clearing and improv- ing the property given to them. (1) Some of the ratifications, however, although subsequent to the instructions of 1676, do not contain any such con- dition. (1) SECTION 6. Arrets de Retranchement. Having thus reviewed the printed seigniorial titles prior in date to the arrets of Marly, and having also noticed the edict establishing the Cornell Sitperieur of Quebec, and considered the charters of the Company of la Nouvelle France and of the Company of the West Indies respectively, I shall now advert to the other laws generally relied on as proving that, even before 1711, Seigniors w^ere under a legal obligation to concede their wild lands. I refer to the four arrets de retranchement^ as they are generally called. The first of these arrets bears date the 21 march 1663, and a translation of it is to be found in the third Vol. of the Seig. Doc. page 160. (" Edictof the King of France^'' '^Xst Marsh IQQ^^ revolving grants oj lands not cleared.) " The King having caused to be laid before liim, in his " council, his edict of the present month, whereby His (1) See particularly the Royal Ratifications, nos. 163, 183, 223, 366, Ac, which em- brace a great number of grants. (2) Sae' or instance nos. 191, 193, 211, 252, 253, 324, Ac 33^ " Majesty, in consequence of the grant and sui-render by " the persons interested in the Company of New-France, " resumed all the rights which had been granted to them by " the deceased King, in consequence of the treaty of the " 29th of April 1627, and His Majesty, having been informed " that one of the chief causes of the said country not having " become as populous as might be desired, and even that " several settlements have been destroyed by the Iroquois, " is to be found in the grants of large quantities of land " lohich have been given to all persons inhabiting the said " country^ ivho not having ever had nor having the power of " clearing the same, and having established their residence " in the midst of the said lands, have, by that means, been " placed at a great distance from each other, and even from " obtaining succour from the officers and soldiers of the " garrison of Quebec and other places in the said country, " and thus it even happens that, in a very great extent of " country, ivhat little land there is in the environs of the " dwellings of the grantees being cleared, what remains can " never become so ; which requiring a remedy, — " His Majesty, being in his council, hath ordained and " doth ordain that, within six months from the date of the " publication of this arrH in the said country, all persons " so being inhabitants thereof shall cause the lands contained " [contenues) in their grants to be cleared, in default whereof " at the expiration of that time. His Majesty doth ordain " that all lands remaining uncleared shall be distributed by " new grants in His Majesty's name, either to the former or " to the new inhabitants thereof, His said Majesty revoking " and annulling all grants of the said lands not as yet clear- " ed by those of the said Company. " His Majesty doth enjoin and command the Sieur de " Mezy, governor, the Bishop of Petree and Robert, inten- " dant to the said country, to see to the punctual execution " of this arrSt, even to make a distribution of the said un- " cleared lands, and to grant them in the name of His Ma- " jesty. 34 h " Given in the Council of State, in presence of the King, on the 21st day of March 16&3. " The second of the arrets de retranchement bears date the 4th day of June 1672, and is almost in the same words as the third, bearing date the 4th day of June 1675, of which we have also a translation at page 161 of the third vol. of Seig. Doc. Arret of the Kinii {4th of Jvne 1675), for reducing the con- cessions ivhich are too extensive^ and for making' a census. " The King having been informed that all the subjects " who have gone from Old to New France, have obtained " grants of a very great quantity of land along the rivers in the " said country, which they have been unable to clear by rea- " son of their too great extent, which is an inconvenience to " the other inhabitants of the said country, and even pre- " vents other Frenchmen from going thither to settle, which " is entirely contrary to the intentions of His Majesty as to " the said country, and to the attention he has been pleased " to bestow, for eight or ten years, on the extension of the " colonies which are settled therein, inasmuch as a part " only of the lands bordering on the rivers is cultivated, the " rest not being so, nor admitting of becoming so, by reason " of the too great extent of the said grants and a ivant of ^'' means in the proprietors thereof; which requiring a re- " medy, — " His Majesty, in his council, hath ordained and doth or- " dain that, by the Sieur Duchesneau, councillor in his coun- " cils and intendant of justice, police and finance in the said " country, there shall be made an accurate statement " of the quality of the lands granted to the principal inha- " bitants of the said country, of the number of arpents (or " other measure used in the said country) which they con- " tain on the borders of the rivers and in the interior of the " lands, of the number of persons and cattle fit for and em- 35^ ''* ploijed in cultivating and clearing the same, in consequence " of lohich statement, one half of the lands which were granted " before the last ten years, and which are not cleared and cul- " tivated as arable or as meadow land, shall be struck out " of the grants and given to such persons as shall come for- " ward to cultivate and clear them. " His Majesty ordaineth that such ordinances as shall be *' made by the Sieur Duchesneau, shall be executed accord- " ing to their form and tenor as being supreme and of ulti- " mate resort, as decrees of a superior tribunal, His Majes- " ty, to that end, attributing to him plenary jurisdiction and " -cognizance, " His Majesty thus further ordaineth that the said Sieur " Duchesneau do give provisionally grants of the lands " which shall have been so struck off, to new settlers on con- " dition, however, that they do completely clear the same " within the four next ensuing years, in default whereof, at " the expiration of the said time, the said grants shall be and " remain null. " His Majesty enjoins, &c., &c.,. . . . given in the King's w Council of State holden in the Camp near Namur, on the " 4th day of June 1675." The fourth and last of the arrets de retranchement bears date the 9th of May 1679. It recites the arr^t of the 4th of June 1675, and sets forth that the intendant Duchesneau had prepared a statement or land roll, such as the King had ordered ; and that it appeared from that statement, that the grants of land were of such extent that the greater part thereof was useless to the proprie- tors, for want of men and cattle to clear and improve it, '■'-faute " dViommes et de bestiaux pour les defricher et metlre en va- " leur ; " that the lands remaining to be conceded were dif- ficult of access, not being near any navigable river, so that many of His Majesty's subjects who went to the colony, S6h abandoned the idea of settling there ; the arr^£ theretipoB ordered that the arret of 1675 should be executed according to its tenor, and declared that one fourth of all the lands conceded before the year 1665, and remaining uncleared at the time of the passing of the arret, should be taken from the proprietors and possessors thereof; and further that each year thereafter, one twentieth of the uncleared remainder of each grant should be taken from the owner and distributed among His Majesty's subjects resident in the colony, wha were able to cultivate the same, or to Frenchmen going to the colony to settle there. These arrets are constantly referred to as showing that Seigniors, even at that time, were under the obligation to- sub-infeudate their lands ; but, in my opinion, they furnish no evidence on that point, the only one in relation to which I am now considering them. They do not, in the preamble, declare that the Seigniors had refused to sub-concede their lands, or that they were liable t& be compelled to do so ; nor do the enacting clauses tend to impose any such obligation. These arrits do not even purport to be based on any breach of the conditions upon which the grants were made. They affect equally all the grants, irrespective of the con- ditions stipulated, or the tenure under which the land was held ; and make no distinction betw^een the grantees who had, and those who had not fulfilled the conditions imposed upon them. The first of these arrets declares " that one of the chief " causes of the country, not having become as populous as " might be desired " — is to be found in the grants of large quantities of land which had been given to all persons in- habiting the said country, loho not having ever had^ nor hav" ing the power of clearing the same, and having established their residence in the midst of the said lands, have, by that means, been placed at a great distance from each other, &c.y and thus it even happens that in a very great extent of coun- 37^ try, " ivliai little land there is in the environs of the divellings " of the grantees being cleared^ what remains can never be- " come so." This statement assumes that the mode in which the gran- tees were to improve their lands, was by clearing it themselves, and that any part of a fief which the owoier himself could not clear, was not likely to be cleared in any other wav ; thus ignoring sub-concessions as a means of setling and improving the wild lands of the country. The enacting clause, in accordance with the preamble, requires the gran- tees to cause the " lands contained in their grants, to be cleared within six months, from the date of the publication of the said arret," but does not contain any order of any kind as to the sub-conceding of the lands. The second and third arrets de retranchement, in like man- ner mention that, " part only of the lands bordering on the " rivers is cultivated, the rest not being so, nor admitting of *' becoming so, by reason of the too great extent of the said " grants and the want of means in the proprietors thereof. " — Now, if, at this time, it was understood that Seigniors were to cause their lands to be improved by means of sub-conces- sions ; and if it be true, (as has been contended) that Seig- niors, from the first settlement of the countiy, were mere trustees or land agents, how could the King declare that the too great extent " of the grants, and the icant of means in the proprietors thereof "prevented \he'u fiefs from being cultivated. Want of means might prevent the Seigniors from clearing land themselves, but it could have no tendency to prevent them from making sub-concessions, and thereby increasing their means. The fourth arret is framed in the same spirit as the others. — After mentioning that the intendant Duchesneau had pre- pared the statement or land roll ordered by the two former arrets, it proceeds to declare that it appears by that state- ment, " que ces concessions sont d'une si grande etendue, 38 h " que la plus grande partie est demeuree inutile aux pro- " prietaires faute (Phommes et de bestiaux pour les defrichei " et mettre en valeur." If the King understood that these lands had been given to the Seigniors merely to sub-concede them to others, and that to sub-concede their lands was their paramount duty, how could he have said that the greater part of those lands were useless to the proprietors for want of labourers and cattle, faute dViommes et de bestiaux jwtir les defricher et mettre en valeur ? Opinions are divided as whether the arrits de retranche- meni ever were carried into effect. As that point is of very little practical importance, I shall content myself with ob- serving that I know of no instance in which they were ac- tually enforced ; that is to say, I know of no instance in which a Seignior was deprived without compensation, of all his uncleared land by virtue of the first arrit de retran- chement ; or of the one half of his uncleared land by virtue of the 2nd and 3rd of those arrits^ or of the one fourth or of one twentieth by virtue of the 4th and last of those arrits.. Doubtless many tracts of land, which had been granted either en fief or otherwise, were afterwards re-united to the Crown domain. But so far as I am aware, this occurred in cases only where the grantees had failed to fulfil the condi- tions of their grants ; and therefore may have been done, and very probably was done under the general law of the country, and in pursuance of the contracts between the King, as Seignior suzerain^ and his Vassals ; and not in j)lain violation of those contracts^ as ordered by the arrits de retranchement. It is quite certain that those arrits^ of themselves, did not operate a defeasance of the grants. The first arret gave the parties against whom it was directed, six months from the time it was enregistered, to clear their lands ; and it was af- 39 h terwards modified by the other arrSts^ which required that a certain portion only of the uncleared lands should be resumed. In order to enforce these arrets^ some proceeding would have been necessary to determine what portion of the fief was resumed by the Crown ; and what portion was left to the Vassal ; and of any such proceeding we can find no trace. The seigniory of La Citiere (1) was referred to as an instance of the execution of these arrets^ but that was the reunion of the whole ^f/" to the Crown domain, and not the resumption of a certain part of the wild land of a fief under the provisions of the arrets de retranchement. A case is to be found in the first volume of the Seig. Doc. p. 113, in which one twenty fourth part of the seigniory of Lauzon was taken from the owner and granted to the Jesuits; the governor and intendant declaring in the deed that, al- though they might have taken the land of their own autho- rity, as it had not been cleared, yet, in order to satisfy and in- demnify the owner of Lauzon, they granted to him an equal quantity of uncleared land. Thus we see that, ten years after the date of the last of the arrets de retranchement^ the Provincial authorities, although they declared that they had the power to deprive a Seignior of his wild land, yet would not do so even for the benefit of a religious body, without giving the owner a full indemnity. According to no. 214 of M. Dunkin's summary (which has not been controverted), the Jesuits do not appear to have availed themselves of this grant. Extensive owners themselves of wild lands, the prudent Jesuit fathers may probably have considered it unadvisable (even for their own immediate benefit) to lend their sanction to an exercise of power, on the part of the governor and the inlendant, which might probably afterwards be regarded as a precedent in dealing with their own possessions. (1) Alluded to in Seig. Doc. vol. 1, p. 453. 40 h Section 7. Sub-infeudation of wild land not made obligatory before arret of 1711. I have now, I believe, noticed all the important printed grants enfiefm^de prior to the arr^t of Marly, and also all the legislative acts up to the same period, bearing on the subject now under consideration ; and I must say I do not find any thing in those laws, which, according to my views, would justify me in asserting that they created or enforced, or were intended to create or enforce an obligation on the part of the owners of fiefs to sub-concede their wild lands. Indeed, I cannot find that they allude to such supposed obligation in any way. They evince a constant determination on the part of the Sovereign to cause the colony to be settled and improved; but settlement, by means of sub-infeudation, certainly is not enjoined, and does not appear to have been the principal mode then contemplated. As to the titles, not one of them, so far as I know, con- tains an express obligation to sub-concede the land granted. The conditions of a great majority of the grants thus made could (it is plain) have been fulfilled without the making of any sub-concessions ; and it appears to me unreasonable to infer an obligation to sub-concede, from conditions, the ful- filment of which had no tendency to require a performance of any such obligation. A considerable number of the titles, it is true, subjected the grantees to the obligation of clearing the whole of their lands ; but there is an important and obvious difference be- tween the obligation to clear and the obligation to sub-con- cede ; indeed, in a legal point of view, the two obligations have hardly any thing in common. The latter obligation, if carried into full effect, would leave the original grantee with- 41 h out an acre of land ; whereas the former, even if carried out to the utmost extent, would leave him in possession of his whole Jief. The french authorities, although they may, in common with others, have had erroneous views as to colo- nization, knew perfectly the force and meaning of words ; and if, from 1628 to 1711, they had constantly intended to compel the owners of fiefs in Canada to sub-concede their lands, express words to that effect would have been found in some of the hundreds of grants made during that long interval ; and yet we have seen that no such words are to be found in any of them. It does seem strange that the laws and grants prior to 1711, which are wholly silent as to sub-concession, should be considered to have as effectually imposed the obligation to sub-concede as the arr^t of that year, which expressly enjoined it. Moreover the clause containing the condition that the land granted should be cleared within a certain time, was ob- viously, even as regards the duty of clearing, a comminatory clause, and could not have been considered otherwise ; for the fulfilment of it was not only utterly, but plainly impos- sible, either by sub-concessions or otherwise. The ^efs granted prior to 1712, contained, it is stated, about 7,000,000 arpents, and as late as 1734, according to a census then made, the whole of the land cleared in Canada did not exceed 180,768 (1) arpents — so that the whole of the land cleared during a period exceeding a century, did not amount to three per cent of the land granted prior to 1711- We can thus form some idea as to how far it would have been practicable for the owners of the ^efs, of which we are now speaking, to clear the land granted to them, within the time mentioned in their titles, either by means of sub-con- cessions or otherwise. (1) Garneau — 2 vol. p. 440. 42 h Such then are the grounds upon which, notwithstanding the sincere respect which I entertain for the opinion of the learned Judges, from whom I have the misfortune to differ upon the present occasion, I have come to the conclusion that the concession of wild lands for the purpose of settle- ment was not made obligatory upon Seigniors prior to the arret oiXlW. Before proceeding to the consideration of that arret., it may be well to observe, that whatever doubt may exist, as to whether Seigniors, prior to the date of that law, were or were not under a legal obligation to sub-concede their wild lands, there is most assuredly nothing in any of the laws or titles of which I have spoken, which had any, even the slightest tendency, to prevent a Seignior, when he did con- cede, from obtaining the best terms possible in his own favour. In none of those laws or titles, do we find any trace of a fixed rate at which, or of any particular conditions upon which a Seignior could be required to concede his land. A careful review of the grants and laws prior to the arrit of Marly, must at least prove this much, that, up to that time, the parties to deeds of concession could exercise the same unrestricted freedom in those contracts, that they could in making any other agreement, and that, in this respect, our common law, namely, the Custom of Paris, remained un- changed. With these remarks on the legislation and titles prior to the arrSt of 1711, I now proceed to the consideration of that arrit which is doubtless one of the most important of our colonial laws. Section 8. ArrH of 1711. This arrit contains two distinct enactments ; of these, one relates to those Seigniors who had no domain cleared or 4Sh settlers established on their seigniories, the other to certain Seigniors who had refused to concede their lands to settlers. The preamble is divided in like manner with reference to these two subjects. The first enactment affords further evidence, if indeed any were needed, of the determination of the King of France, to compel Seigniors to improve their lands; but beyond this, it has not any direct bearing on the matters now in controversy. I therefore pass at once to the consideration of the second enactment and of that part of the preamble which has re- ference to it. " Sa Majeste etant aussi informee qu'il y a quelques Sei- " gneurs qui refusent, sous differents pretextes, de conce- " der des terres aux habitants qui leur en demandent, dans " la vue de pouvoir les vendre, en leur imposant en meme " temps les memes droits de redevances qu'aux habitants " etablis, ce qui est entierement contraire aux intentions de " Sa Majeste, et aux clauses des titres des concessions par " lesquelles il leur est permis seulement de conceder les " terres a titre de redevances ; ce qui cause aussi un pre- " judice tres-considerable aux nouveaux habitants qui trou- " vent moins de terre a occuper dans les lieux qui peuvent " mieux convenir au commerce " Ordonne aussi Sa Majeste que tous les Seigneurs au " dit pays de la Nouvelle-France, ayent a conceder aux " habitants les terres qu'ils leur demanderont dans leurs " seigneuries, a titre de redevances, et sans exiger d'eux au- " cune somme d'argent, pour raison des dites concessions, " sinon et a faute de ce faire, permet aux dits habitants de " leur demander les dites terres par sommation, et en cas de " refus, de se pourvoir par-devant le gouverneur et lieutenant " general et Pintendant au dit pays, auxquels Sa Majest§ " ordonne de conceder aux dits habitants les terres par eux " demandees dans les dites seigneuries, aux memes droits " imposes sur les autres terres concedees dans les dites sei- 44 h *' gneuries, lescpiels droits seront payes par les nouveaux " habitants entre les mains du receveur du domaine de Sa '^' Majeste, en la ville de Quebec, sans que les Seigneurs " en puissent pretendre aucuns sur eux, de quelque nature " qu'ils soient." The words of this arret, in so far as it imposes upon Sei- gniors the obligation to sub-concede, are too plain to admit of doubt. Unless, therefore, (as has been contended,) it can be shewn that the law was null from the first, it is clear that, from the time of its promulgation, the Seigniors to whom it applied were subject to the obligation in question. But if the obligation, under this arr^t, to sub-concede be plain, I think it is equally so, that His Majesty did not fix and did not intend to fix an invariable rate at which all concessions of land for the future were to be made. The words of the law are : " Ordonne aussi Sa Majeste que tons les Seigneurs au " dit pays de la Nouvelle France, ayent a conceder aux ha- " bitants les terres qu'ils leur demanderontdans leurs seigneu- *' lies, a titre de redevances, et sans exiger d'eux aucune " somme d'aro^ent." 'O"^ What is there in these words to fix any one rate of rent more than another ? To me it appears as plain as any legal proposition can be, that a concession deed made in good faith, at an annual rate of six pence or a shilling per ai-pent, would be as truly a concession a titre de redevances, within the meaning of the law, as a concession deed at a penny per arpent, — Where are we to discover in this airet the origin of a penny rent or of any other fixed rent ? And when it is borne in mind that the lands to be affected by this law ex- tended over a vast range of country of about 1500 miles in length, and that they, therefore, were necessarily widely dif- ferent from each other as to climate, soil and situation, il must be evident, that it would have been as unreasonable as unjust to establish such a rate. We know, moreover, that in the correspondence which led to the arret of 1711, the establishment of a uniform rate 45 It for the whole colony had been repeatedly and strongly urged' upon the french minister, by Mr. Raudot senior, then intendant in Canada ; his proposal being, " that his Ma- " jesty should ordain that they (the Seigniors) should only " take for each arpent of the contents of the grants, one " sou of rent and a capon for each arpent in front, or 20 " sous at the choice of the grantee." (1) We know also, from the printed correspondence, that this subject was for some time under the consideration of the authorities in France ; and when, with these facts before us, we compare the proposal, made by Raudot, with the arret actually promulgated, it seems difficult to avoid the conclusion, that that proposal was deliberately rejected ; certain it is, that it was not adopted. It has however been contended, that the obligation to sub-concede, must necessarily have been nugatory, unless a certain rate had been established, at which concessions should be made. The ai-gument, I think, has little weight. The obligation to sub-concede would indeed have been nu- gatory if no rule had been laid down, according to which that obligation could have been enforced ; but there is a manifest difference bettveen the establishing of such a rule, and the fixing of a uniform rate, Mr. Raudot repeatedly and earnestly suggested the latter alternative ; His Ma- jesty in his council of state, after the subject had for some time been under consideration, adopted the former. Under the common law, if a Seignior agreed to concede land with- out naming the rate, it was determined according to that usually paid for the adjoining lands in the same seigniory; and this rule was adopted as to concessions to be made by the governor and intendant under the arret. In doing this, the King not only did not establish one uni- form rate, but, on the contrary, sanctioned an almost in- finite variety of existing rates ; and virtually permitted the (1) 4 Vol. S. D. p. 9. 46 h establishment of others without any limit as to number or amount. And from the official correspondence, to which I have already adverted, we must presume that this was done advisedly. Mr. Raudot, in his letter of 10 Nov. 1707, had complained " that, in almost all the seigniories, the dues are " different ; some pay in one way, others in another, accor- " ding to the different characters of the Seigniors by whom " the grants tvere made ;" and, in his letter of the 18th of Oct. of the following year, the same intendant says : " It " would also be necessary, with regard to the seigniorial , " dues, to make them unifonn by reducitig them all to the same " scale, and for this purpose, my Lord, I have the honour to " send you a memorandum containing the dues which I ^^ have found in several deeds of concession all different from " each other.'''' We find the same words in the letter of the 10 July 1708, from Mons. de Pontchartrain to Mr. d'A- guesseau. And yet we see, that, with these facts before them, the King in his council ordered the governor and intendant in Canada, in case of a refusal on the part of the Seigniors to concede their lands, " to concede to the said " settlers the lands demanded by them, in the said sei- " gniories, for the same dues as are laid upon the other con- " ceded lands in the said seigniories :" — thus adopting and sanctioning, for each seigniory, when the governor and in- tendant were required to intervene, the rate usual there at the time of the making of the sub-concession demanded ; that being the interpretation put by the colonial authorities, on the words " in the said seigniories," and the only one of which they are susceptible, It is to be observed that, although the arrSt lays down a rule for the concession to be made by the governor and in- tendant in case of a refusal on the part of a Seignior to con- cede, it does not attempt to define what should be deemed a wrongful refusal to concede on the part of a Seignior. The public officers named in the arrit would therefore have had to determine, according to the particular circums- tances of each case, whether the refusal, on the part of the Seignior, to concede was justifiable or not. And in the event of there being no refusal to concede, but an offer to do so, on terms not accepted by the applicant, the go- vernor and intendant would then have had to decide whether the terms proposed by the Seignior were such as he could legally exact. But if their was no refusal to concede, nor disagreement between the Seignior and the Censitaire ; if, on the contrary, they had agreed as to the land to be conceded and as to the rent to be paid, and that a contract of concession had accor- dingly been made in good faith, there would not then have been a case to which the terms of the arrH could possibly apply. The power of the governor and intendant to concede the wild land of a Seignior could only be exercised where he wrongfully refused to concede it himself; and therefore could not be exercised, where a concession had been made and carried into effect in good faith. The other laws particularly cited by the attorney general, as relating to the concession of seigniorial lands, are the arre'^ of the 15 March 1732, and the royal declaration of the 17 July 1743. As to the royal declaration of 1743, it makes provision for the granting of the wild lands of the Crown, also as to the manner in which lands should be re-united to the Crown domain, and upon other subjects ; but does not in any way refer to the conditions upon which concessions were to be made by Seigniors. The arrH of 1732 prohibits the sale of wild lands by Sei- gniors and other proprietors, in terms as plain as those by which, under the arre'^ of 1711, Seigniors are required to concede the same kind of land. 48 h The words of the law are : " His Majesty expressly pro- " hibiting all Seigniors and other proprietors from selling " any wood land on pain of nullity of the deed of sale, and " of restitution of the price of lands sold as aforesaid, which " lands shall in the same manner be re-united by force of " law to the domain of His Majesty." This fffre'^ further orders the 2 arrets of 1711 to be exe- cuted according to their tenor and effect, but does not in any way extend or modify the provisions of the arret of 1711, in so far as they relate to concession of woodlands belonging to Seigniors. I therefore maintain that the arret of 1711 is the only law which compels a Seignior to make sub-concessions ; and that there is no other law, which contains any provision as to the manner in which sub-concessions were to be made ; and I hold it to be certain, that the arret of 1711 did not establish any uniform or fixed rate at which all concessions en censive were to be made thereafter. The learned Crown officers appear to have been aware that the laws on which they rely could not, of themselves, cause the seigniorial rents to be reduced as contended for. That they entertained this opinion may be gathered from the terms of the thir- teenth proposition in which it is said : " The rates and " conditions of the concessions of land in the seigniories of " Canada were regulated by special enactments to be found " in divers royal edicts and ordinances as interpreted by ^^ usage, by the judgments of the intendants, and by a large " number of concessions en fief or by the acts {brevets) " confirming such concessions." Had it been possible to refer to the provisions of any law or laws, which, taken by themselves, would justify the court in cutting down the rents agreed upon between the Seigniors and their Censitaires, those provisions of law, it is to be presumed, would have been cited, and had it been possible to cite any such provisions of law, the attempt to 49 h interpret the ffrr (D •2^ o ho C" ^ suBn^) •saonT59 •qaqsng; z -(Mrc^: - ro:: ::c^:: rc^jMcvt:: :: " t-t - o ; t^ in t^ - m n kQ »Q CD - ic t^ ^-. t^ ; : la t-- c^ -*~'--'~^— •— •--^-«»— *;i-^;;f-Hr-(^;; in s «^ s^J^nf) 6[aqsna; C20i^"t^«oc5Tj cVOOOOOOOC200000 C^IMIMCMCOlM?<-^C-iC<(NCMrtCMC^(CMCMCM(MC^ cDoocDcnacajociC ccr. oo_oooa)00 ■0 0:^0^'C«3'CCC'S'^0':3r5'T3'a'T3;o'Bt- J5 -= c o rl ^ © p 3 S j2 o tc q 3 •■_§ s^ S aa <5 S ►^ g ;=) < O Pi t-j |i( *-; o ft -►-jlZift 0■<:l^Tt^dODm!^''noD^»■^05C5^00CDl— 1 ■-<•-< (M CM CM CM CM (M CM _, cM —i CoO r-i CM f-^ f-i »-^ 66 h Rent of 1218 arpents at 2 sols per arpent £5 1 6 Rent according to wheat and money rate of Attorney-General : say 1218 arpents at 1 sol per arpent , 2 10 9 Cens " 2 9 i Bushel of wheat per 40 arpents. 4 3 0^ £6 16 6| 1 4 61 Wheat, 30 bushels and -| at 5s. 5di 8 6 5^ Rent according to contracts : cash 14 6^ £9 11 Recapitiilatian. Rent at 2 sols per arpent £5 1 6 Rent at money and wheat rate of At- torney General 6 16 6| Rent according to the contracts 9 11 67 A r^. o C a c o r^ n >» S£<1 C^C^- C^- MM!Me^C<(N!M t^r~ir:t^u5CJ(Nt^t^t~.t^t^ o •-H O GO — ro 1— ( o c: »fl 1— 1 ^ ro I— < to lO ^ o 00 =t^ ^ •4^ g o u -4-3 S-t a , ,^ t-l o c « «j sapgiadns — op — ■qidap m —op — inojj ai s^nadjy J= CO c-j -o ^ o o -^ o -o § § ooooooooc^r-it— , P=^oo^^colOlr^coM:v:!:-^^c a o 13 o •2 h S g 58 3 o ° o a. o >. a ^ .a 3 a a tj a :-gf' tJOd a o 8 "> '^'^ -a c c cs — ■ c 3 a pi < — 00 b- ODIN t^ 6Sh 03 pq a> F— I as i-i O >5 !^ O • 1-1 a •I— t > ■s^iun^ Z Ci—> CO ^ i o a o •suoii^f) : t^— ' CD a . b 1 ej « •Bigqsng: <— < ^ •— • I^ o s a Hct-4;( "^ o !0 t^O ^ fcJCti »— 1 ■M.< 5^ t~t o >> • moan o o . p. 14. 12 h " And inasmuch as it is the intention of the council that the " clauses inserted in the deeds of concession which are " contrary to the provisions of the Custom of Paris shall be " declared null and void, it becomes necessary that Ms Majesty " should make a decree so ordering it.''"' A draught of the pro- posed decree immediately follows the report of the Council. The proposed decree recites the edict of 1664, which esta- blished the Custom of Paris in the colony, and declares " thai, notwithstanding the provisions of the said edict, se- " veral persons who hold lands in seigniory in New " France, impose in the contracts of concession of the lands " which they gi-ant, very burthensome clauses and servitudes " contrary to the provisions of the said Custom " and preju- dicial to the settlement of the colony, such as the days of husbandry service, corvees, the retrait conventionnel^ the reservation of all wood necessary for their houses or for other works or for fuel, the reservation of all pine and oak trees that may be found in the gi'ant, and various other reservations enumerated in the preamble. To remedy those abuses, the draught in question contains an enacting clause annulling all the objectionable reservations and prohibitions. This document, although merely a draught, seems to me of very great importance. It shows that neither the autho- rities in the colony nor those in France, attributed to the arret of Marly the effect that is now proposed to be given to it, of making void all reservations beyond a mere annual rent. Mr. Begon, five years after the passing of that arrSt^ complains of the reservations made by Seigniors wo^ as being contrary to the arrit of Marly ^ but as being contrary to the Custom of Paris ; and the council, in like manner, proposed to prohibit those reservations not as being at variance loith (he arret of Marly ^ but as being contrary to the Custom of Paris. And one most important point, at least, this draught oi arret establishes conclusively, it is this : that neither the intendant in Canada nor the council in France contem- plated the possibility of setting aside the reservations in question under the arret of Marly, and yet _ that is exactly what is now being done by the judgment of a majority of the members of this court. The interpretation which was thus put upon the arret of marly at the time it was passed, accords (so far as I know) with that which it has invariably received from our own courts. I am not aware that the reservations in question have ever been objected to in any judicial proceeding since the conquest. We all know that from the earliest period, w-ithin our re- collection down to the passing of the seigniorial act of 1854, oppositions founded on these charges, have been constantly allowed, without any difHculty ever having been raised on the part either of the Bar or of the Bench. We also know that lands e7i censive, sold under the authority of our courts by sheriff's sale or otherwise, have, generally speaking, been so sold subject to the charges and reservations now im- pugned ; and if these charges and reservations are now declared null, the result will be, that those who purchased lands e?i censive under the authority of the courts, will receive more than they paid for ; whilst those who have purchased seigniories under the same authority, will receive less than they paid for ; that is to say, the Censitaires will be dis- charged without any payment from obligations which they assumed, whilst Seigniors will be deprived without indem- nity of the rights to which they were entitled by reason of the same obligations. The opinion on this subject given by chief justice Reid in 1842, before the seigniorial commissioners, is entitled to great weight. He says : " Quant a une forde d'autres re- " serves contenues dans les titres de concession, telles que le " droit de banalite, dc faire reparer le chemin du moulin, " de couper et prendre le bois sur la terre pour certains " objets, le droit de retrait et tons les autres droits, charges " et reserves imposes en sus de cens et rentes stipules ; " comme toutes ces charges sont d'une nature arbitraire et in- 74 A " certaine, et qu'elles sont d'ailleurs les charges les plus " onereuses et les plus vexatoires du regime feodal, on " devrait les estimer au plus bas taux possible. " (1) The learned judge whose words I have just quoted, was one of the members of the court of King's bench for the district of Montreal for a period of 33 years, during fifteen of which he presided as chief justice in that court. The charges and reservations now in dispute must have come very frequently under his no'tice during every year, pro- bably during every term of his long judicial career ; and yet, although regarding them as he evidently did with dis- favour, it does not seem even to have occurred to him that they could be treated as null and void. Like the authorities in the colony and in France, at the time the law w^as passed, and like his predecessors and contemporaries on the bench, he failed to discover that the re- servations in question were prohibited by the arret of 1711. I wish to guard myself from being misunderstood on this point. I have not asserted and am far from maintaining that the reservations mentioned in the questions of the At- torney General ought to be held legal in all cases and under all circumstances. Some of those reservations might render it impossible for the settler to cultivate and improve his land, and in such cases they ought to be held null as being contrary to the policy of the law. In like manner the legality or illegality of the prohi- bitions mentioned in the questions of the Attorney General would depend upon the circumstances of the case in which they were made. If, for instance, a Seignior not having a saw mill, were to covenant that none of his Cemdtaires should erect any such mill, I tliink the covenant v/ould be illegal (1) Keport of commissioners in 1644, p. 237. 75 /^ as being in restraint of trade ; but, on the other hand, where, in consequence of the Seignior having himself a mill or from any other such cause, the covenant was made for the protection of the Seignior's just interests, I would hold it unobjectionable. In fine I do not hesitate to say that I view these reser- vations and prohibitions in the same unfavourable light in which they ^vere regarded by the late chief justice Reid ; but still as the law has not expressly prohibited them, I can declare them to be illegal in so far only as they plainly conflict with the policy of the law, which was the settle- ment and improvement of the wild lands of the colony. PART 3 . Banalite. The right of banalite is one of the most important rights enjoyed by Seigniors in Lower Canada ; and it is important, not only on account of the profits resulting from it, but also in consequence of the large amount of capital that has been expended with a view as well to the present enjoyment of that right, as in order to secure it for the future. There is however, but one practical question of importance, con- nected with this subject, in relation to which, according to my views, any doubt can be raised ; and that is whether Seigniors, having the droit de banalite^ have as an incident, the right to prevent all other persons from building grist mills within the limits of their seigniories ; and to cause such mills, if erected without their consent, to be demolished. The existence of this incidental right has been very posi- tively denied by the learned council for the crown ; and I, therefore, think it necessary to show that the authorities on this subject are so numerous and weighty as really to leava no room for doubt on the point. 16 h I deem this citation of authorities the more necessary, because the incidental right controverted (which is not one of d, favourable nature) cannot be supported by any positive text of law. Moreover some of the authors generally cited in support of it, were spoken of in disparaging terms at the argument. It will not, however, be denied, that, on this subject, the opinion of Henrion de Pansey, Herve and Merlin are of the greatest weight ; and in addition to these, there will be found, in the following list, the names of many of the es- teemed commentators upon our own Custom, and of many others of the old Avriters usually cited as authorities. Henrion de Pansey, vol. 1, p. 174, says : — " Les etTets de " la banalite consistent principalement en deux points. Le " premier, de contraindre les sujets de venir au moulin-ba- " nal ; le second, d'interdire a toutes personnes de cons- " truire dans I'enclave de la banalite, des moulins, etc." Same vol. p. 216 : " Ceux qui sont assujettis, soit par " convention, soit par I'autorite de la loi, a moudre a tel " moulin, ne peuvent pas en batir meme sur les eaux qui " sont dans leurs domaines et qui leur appartiennent, parce- " que ce serait enfreindre la convention ou choquer la loi, *' parce que Passujettissement a la banalite de moulin emporte *' naturellement I'abdication de la faculte d'en construire." Herve, 5 vol. p. 493 : — " Un troisieme effet de la banalite " de moulin est de donner au Seigneur droit d'empecher de *' construire d'autres moulins dans les limites de sa banalite." Herve refers to Basnage et Poulain-Duparc, who report three arrets on this subject. Merlin — Rep. verbo moulin, vol. 21, p. 9, art. 1. — " Regies " du droit commun sur la faculte de construire des moulins " sur son propre fonds." — " II faut distinguer le cas ou le " lieu dans lequel il s'agit de savoir, si un particulier qui *' pent batir un moulin, est sourais a une banalite, d'avec 11 h " le cas, ou ce lieu est parfaitement libra. Dans le pre- " mier cas, personne ne pent construire un moulin sans la " permission du Seigneur de la banalite. Des qu'un moulin " est banal, il n'est plus permis de rien faire qui tende a " priver le proprietaire des profits qui doivent lui en venir, " Or n'est-ce pas donner une atteinle manifeste que de se " permettre la construction d'un autre moulin quel qu'il " soit ? " Charapionniere, p, 616, no. 364 : — " La restriction la plus " large et la plus absolue du droit de construire moulin re- " sultait des banalites ; Id oil le Seigneur avail droit de mou- " Un banal^ nul autre n'en pouvait construire.^'' See also — Pocquet de Livoniere, p. 608 ; — Freminville, vol. 2, p. 355 ; — Bacquet, Droits de Justice, vol. 1, p. 428, ch. 29, no. 4 ; — Despeisses, vol. 3, p. 229 ; — Ancien Deni- sart, verbo banalite, no. 5, p. 255 ; — -Lacombe, same wordy no. 7 ; — Guyot, Repertoire, verbo moulin, p. 685 ; — same, verbo banalite, p. 112 ; — Nouveau Denisart, same word, vol. 3, p. 150, § 4, no. 18 ; — Charondas, ed. of 1578, Com- mentary on Custom of Paris, p. 117. Brodeau, Commentary on Custom of Paris, ed. of 1658, on art. 72, p. 770, no. 6 : — " Le Seigneur etant fonde en " litre valable de banalite de moulin soit a eau ou a vent, " il peut contraindre tous ses banniers d'y venir moudre, les " empecher d'aller ailleurs, ni de construire aucun moulin " d hie dans Vetendue de sa banalite ; et sHls en ontfait bdtir " sans son consentcment et sa permission, les contraindre de " les demolir, etc.'''' Duplessis, Treatise on Custom of Paris, vol. 1, p. 66, on art. 71 : — " L'effet de la banalite consiste en trois points. " Le premier, de contraindre les sujets de venir au moulin, " etc. ; le second, de les empecher d'en construire dans son "•' ressort, etc." Ferriere, Custom of Paris, vol. 1, p. 1038, art. 71, glose lie, no. 13 ; — Le Camus, on same article, vol. 1, Custom of 78 /j Paris, ed. in-folio, p. 1047, no. 4 : — " L'efFet de la banalite " est qu'en attribuant le droit au Seigneur, il donne en meme " temps Pexclusion a tons les autres ; ainsi celui qui a ba- " nalite de moulin peut empecher tous les autres d'en batir " dans toute I'etendue de son territoire." Le Maistre, Commentary on Custom of Paris, same 'art. p. 92 ; — Auzanet, Commentary on same Custom, p. 52. — The judgments of our own courts, on this point, are in perfect harmony with the opinions of the authors above cited, as will be found on reference to the following cases, in each of which the incidental right in question was for- mally maintained. The first decision on this point appears to have been ren- dered on 6 Sept. 1774, Court of Common Pleas of Quebec. No. 74. — Dame Genevieve Alliee. for her minor son, Sei- gneur de la seigneurie de la riviere du sud vs. INIichel Blais. The words of the judgment are : " La cour declare le moulin du dit Michel Blais etre indiiment etabli, et en con- sequence condamne le dit Blais ademolirson dit moulin eta le denaturer de facon qu'il ne puisse servir a moudre du grain, etc." This judgment was confirmed by the court of appeals on 23rd December 1777. 2d case. — Three Rivers: Munro et al. vs. Lamy, judgment 27 Jan. 1820, confirmed in appeal, 30 April 1821. 3rd case. — iNIontreal : Baroness of Longueail vs. Charles Frechette, judgment 10 April 1820. 4th case. — Montreal : Seminary of Montreal vs. William Fleming, judgment 20 June 1852, chief justice Reid, justices Foucher and Pyke. 5th case. — Quebec : Noel vs. Langevin, judgment 20 Oct. 1823, chief justice Sewell, justices Kerr, Perrault and Bowen. 79 h 6th case. — Three Rivers : Delery vs. Claugh, judgment 23 Sept. 1839. 7th case. — Quebec : Larue vs. Dubord, judgment 25 nov. 1850. Sth case. — Montreal : ]Monk vs. Morris, judgment 22 June 1852. Thus we know of ten decisions of our own tribunals confirming the right in dispute. Three judgments in the district of Montreal ; a like number in the district of Que- bec ; two in the district of Three Rivers ; and in fine two judgments of the provincial court of appeals. As to the jurisprudence in France on this subject, it is sufficient to quote the following passage from Merlin. — Re- pertoire, verbo moulin. — " On cite neanmoins un tres-an- " cien arret du parlement de Paris qui a juge le contraire " (that is against the right now claimed, the date of the " arret being in April 1301), mais c'est une decision isolee " qui dans des temps plus modernes, Ti'a pas trouve un seul " partisan^ et que le parlement de Paris lui-meme a renversee " par un arret du 2 aout 1558." The foregoing authorities and decisions must be con- sidered as establishing beyond controversy the incidental right now particularly under consideration. P AMT 4 . Unnavigable Rivers. Division of the Subject. § 1. — Under the ancient law of France, unnavigable rivers were private property. § 2. — The grants en fief, in Canada, included unnavi- gable rivers within the limits of the land granted. 80 h § 3.— The right to those rivers passed, not as incidental to the right of haute justice^ but as accessory to the land granted. Authorities on this point. § 4. — Land passes as completely under a grant en censive, as it does under a grant en fief, excepting as to honorary rights ; the right to unnavigable rivers is not an honorary right ; Censitaires therefore entitled to unnavigable rivers within limits of their own lands. § 6. — This conclusion appears to be at variance with the state of things which existed in France, at the time of the french Revolution. Observations on this discrepancy, ■ § 6. — Notice of ancient authorities cited in support of the claim of the Seigniors as Seigneurs feodaux. § 7. — Notice of the proposition that the courts under the code civil and the majority of the modern french writers, are opposed to the claims of the riparian proprietors, and of two other propositions advanced on the pari of the Seigniors. § 8. — Conclusion. — § 1. There has been much controversy as to whether under the code civil even unnavigable rivers are susceptible of being private property ; but whatever doubts may exist as to the bearing of the modern law of France on this subject, it is indisputable that, before the Revolution of 1789, unnavigable rivers in France were universally held as private property, subject to certain easements and ser- vitudes in favour of the public, and that the state did not pretend to have any right of ownership therein. Henrion de Panscy, writing in 1789, says : " Les rivieres sont absolument dans le commerce, le proprietaire pent les u (1) I confine my observations to the case of unnavigable rivers, as tbe questions relating to navigablo rivers present comparatively little difficulty, 81 h *' vendre, les donner, les echanger, les afFermer, cela se voit "" tous les jours." (1) This is one of the few points, on the subject of unnavi- gable rivers, respecting which there can hardly be said to be any difference of opinion among the ancient writers ; to use the words of Raymond Bordeaux : " Quant aux anciens " jurisconsultes, ils n'avaient jamais songe a une pareille *' question, et ils ne paraissent pas avoir doute de Ja pos- " sibilite de la propriete." (2) It is also, I think, well established that these rivers were, for the most part, held by the Seigniors in France, either hauts-justiciera or feodaux, as their private property. § 2. — Such being the case, it appears to me to be clear, ihat when the king of France made grants of land in Ca- nada, the unnavigable rivers within the limits of the land so granted were included in the grant. It is needless however to dwell upon this point, as it is admitted both by the counsel for the Seigniors and by the coimsel for the crown. The pretention of the Seigniors is that the unnavigable rivers passed to them with their seigniories, and that they still continue to hold them as their own property, notwith- standing the subgrants made by them of the lands through which those rivers flow. The counsel for the crown contend on the other hand, that as the unnavigable waters passed with the land from the crown to the Seignior, so afterwards they pas.>:^ed in like manner from the Seignior to the Cenailaire. § 3. — As most of the grants of seigniories in Canada in- cluded the right of haute justice^ it becomes necessary for the decision of the highly important point thus in contro- versy, to ascertain whether these rivers passed to the Sei- gniors, in the first instance, as an accessory to the land, ot (1) Henrion de Pansey, Dis. Feo. des eaux, vol. 1, p. 669, § 13. (2) Raymond Bordeaux, p. 75. See also Daviel, vol. 2, p. 12. 82 h as an incident to the right of haute justice. The importance of this enquiry is obvious, not only as between the Seigniors and their Censitaires^ but also as between the Seigniors and the crown ; between the Seigniors and their Censitaires, because if the ownership of the rivers be an incident to the right oUiaute justice, it is clear that that ownership could not have passed from the Seigniors to the Censitaires, as the latter never had or could hive the right of hautejusiice ; as between the Seigniors and the crown, because if the right to the rivers be an accessory to the right of haute justice, it may be contended that the Seigniors have no longer the prin- cipal right, (1) and therefore, that they have lost the inci- dental right to the rivers. On this question a:, to the ownership of unnavigable rivers, the most conflicting views are expressed by the old french jurists ; some maintaining that they belonged to the Seigniors hauts justiciers ; others that they were the property of the Seigniors feodaux ; and a third class holding that the ownership of these rivers wholly depended on title and possession. After giving to this subject the utmost care, I feel sa- tisfied that there was not throughout those ])arts of France, known as les pays coutumiers, any general law giving either to Seigniors hauts-justiciers, or feodaux, or to any other class of persons, an exclusive right to unnavigable rivers. (2) The authors, who are generally relied upon as holding that the Seigniors hauts-justiciers in France were entitled to the unnavigable streams within their jurisdiction, are no doubt numerous and deserving of respect ; but it will be found that many of them wrote with especial reference to (1) Merlin, Questions de droit, cours d'eau, vol. 4, p, 396, § 1,~-Bru33els, ed. ef 1329. (2) Davie!, vol.2, p. 12. " Et au milieu de ce conflit d'opinions contradietoires, "la seule conclusion qu' on puisse adopter, c'est qu'on ne peutetablirla-dessus aucune " rigle ojenerale, et que tout cela depend des titre.s et do la possession." See also, Ancien Repertoire, verbo riviere. — " On demande si les rivieres qui ne sont pas na- " vigablcs appartionnent aux riverains ou aux Seigneurs. Mais il parait qu'on " ne peut etablir a cet ogard aucune regie generale et que tout depend du titre e^ " dela possession." — See also other autorities cited by Championniere, p. 693. 83^ the paqjs de droit ecrit. As instances, I may mention Henrys (1), Boutaric (2), Despeisses (3), Bretonnier (4), LaRocheflavin (5), Salvaing (6) and Series (7). But those authors, who distinguish between the pays de droit ecrit and the pays coutumiers^ are far from asserting that any such rule existed in the pays de coutume. Guyot, who wrote in 1738, after observing that the opinion of Bacquet (which is opposed to the pretentions of the Seigniors) is contrary to the pratique universelle in France, adds : " Es pays de " droit ecrit, communement elles (ces rivieres) appartien- " nent aux hauts-justiciers. Dans les pays de coutume elles " sont generalement un droit de fief (8)." Herve, who wrote in 1785, in the fourth volume of his work which purports to be an exposition de la doctrine feodale particulierement appliquee a la coutume de Paris^ observes : " II est a re- " marquer que les rivieres sont en general un droit de fief et " non de justice^ (9) And Henrion de Pansey, who wrote in 1789, in discussing the question as to whether unnavigable rivers belong to the Seignior haiit-justicier or to the Seignior feodal^ remarks : " Cette question qui parait decidee en " faveur du haut-justicier par la jurisprudence des par- " lements du droit civil, partage les auteurs des pays de '■^coutume; (10) but in the following part of the same section, he supports with his own opinion, which doubtless is entitled to great weight, the right of the Seigneurs feo- daux. We thus see that Herve and Henrion de Pansey, who both wrote during the very last days of the existence of the feudal tenure in France, and who directed their atten- (1) Henrys was avocat du Red au bailliage de Fores. (2) Boutaric, professor of law in the university of Toulouse. (3) Despeisses, avocat de Mantpellier. (4) Bretonnier devoted himself principally to the study of the Roman law and the usages despays de droit ecrit. See page 9 of the notice which precedes his work "RecueU de Bretonnier," (5) LaRocheflavin at one time conseiller au parlement de Paris, afterwards pre- tident aux requites du Palais cl Toulouse. (6) Salvaing, president de la chambre des comptes en Dauphine. (7) Serres, law professor at Montpelier jV. B. Fores, Toulouse, Montpelier and Dauphind were all "pays de droit ecrit." (8) Guyot, Traite des fiefs, vol. 6, p. 664. See same vol. p. 666. (9) Herve, 4 vol. p. 251. (10) Sonrion de Pansey, vol. 1, p. 656. 84 /* tion specially to this point, concur with Guyot and many other esteemed writers on the feudal law, in asserting that, in the pays de coutume^ unnavigable rivers belonged to the feudal Seigniors and not to the Seigniors hauts-justiciers. In so far as Guyot, Herve and Henrion de Pansey are opposed to the claims of the Sei'j^neurs hauts-justiciers^ they agree with Bacquet (1), Loyseau (2),Domat (3), Pothier (4), Souchet (5), Merlin (6), and several authors of less note, cited by Championniere, all of whom, either expressly or impliedly, deny that there was any general rule of law, which gave either to the Seigneurs hauts-justiciers or to the Seigneurs feodaux^ an exclusive right to the unnavigable rivers within Xheh fiefs or jurisdictions respectively. In considering the conflicting authorities and argument an this subject, we must bear in mind that the Censiiaires claim merely the water courses on their own lands ; whereas the Seigniors claim, not only the water courses on their own lands, but also those on the lands of their Censitaires. The Seigniors therefore claim an exclusive privilege, which cannot be maintained, unless it be founded upon some well established rule of law; and even supposing the claim of the Seigniors as Seigneurs hauts-justiciers to have a preponderance of authority in its favom* (which in my opinion it certainly has not, in so far as regards les pays covtumiers^) still a mere preponderance of authority, can not be deemed equivalent to a rule of law, for the purpose of giving one class of persons a privilege against all others. (1) Bacquet, Droit de justice, ch. 30, no. 25. (2) Loyseau, des seigneuries, ch. 12, no, 120 and no. 131. (3) Domat, lois civiles, liv. 2, tit. 6, sec. 1, page 174. (4) Filthier, Propriete, no. 53. (5; Southet, Coutume d'Angoumois, tit. des fiefs, ch. 1, art. 39, no. 44. (6) Merlin, Questions de droit, verbo peche. All the above authorities and many •thers having the same tendency, will be found collected in nos. 371, 39S and 399 of Championnicre's work. See also other authors cited by Prudhon, Dom. pub vol. 3, p. 266 ;— an I also Duplessis on Custom of Paris ; — Traitc des fiefs, liv. 8, ch. 2, vol. I, page 66 ; — LeMaistre on art. 71, Custom of Paris. I do not think it necessary to . . »n;cribc the above authorities here, as they almost all have been already quoted. 85 h I am therefore clearly of ojDinion, that even those Seigniors, whose titles include the droit de justice^ cannot claim the unnavigable rivers within their grants, as an incident to the right oi haute justice ; but that they became the proprietors of those rivers, as part of the property to which they were entitled under their grants. Their rights to their land, and to the unnavigable streams watering that land are preci- sely of the same nature and of the same origin ; they are proprietary rights held under the tenure en fief. This view is in accordance with the opinions of Herve and of Henrion de Pansey. The latter says : " Le Seigneur " feodal a la propriete des rivieres, puisqu'on les regarde " comme appartenantes a la classe des proprietes privees " lors de la reunion presumee de ces proprietes dans sa " main, (1) etc.," and Herve, in his 7 vol. p. 364, says : " On n'a la seigneurie, ou la propriete des eaux que parceqii'on a celle du sol qu'elles baignent ; c'est la un tout indivisible. La distinction des eaux et du territoire est veritablement une distinction futile et inadmissible.''^ Being then, as I am, of opinion, that the grants en fief in Canada included the unnavigable waters within the limits of those grants, I, of course, hold, that the unnavi- gable rivers, within the domain and unconceded land be- longing to a Seignior, are still his property. This point admits of no doubt, but brings us to one, that is by no means free from difficulty ; and that is, as to whether the grants eti censive^ made by the Seignior, in- clude the unnavigable streams, within the land granted, in the same w^ay as they are held to have been included in the grants en fief made to the Seigniors. (2) § 4. — It must be admitted, that the land passes, as com- pletely under a grant en censive, as it does under a grant (1) Henrion do Pansey, vol. 1, p. 660. (2) I speak of eontraib which innke no express provision on the subject. Con- tracts which expressly either exclude or include water courses, according to my yiews, present no diflSculty. 86^ en fief. In both cases the grantor retains a domaine direct^ and in both cases the grantee receives the domaine utile. Henrion de Pansey, (1) speaking of the domaine utile acquired under a bail a cens., says : " En general le Censi- " taire pent disposer a son gre du fonds censuel, il peut y " batir, renverser les edifices qui y sont constraits, en ex- " traire les mineraux qui y sont renfermes, en faire des " promenades, convertir les etangs en terres labourables, " et les terres labourables en etangs ; il a /a propriete ab- " solue du domaine utile et il peut en user comme iljuged " propos. " Pothier defines the domaine utile thus : " La seigneurie " utile comprend le droit de percevoir toute I'utilite de la " chose, en jouir, user et disposer a son gre, a la charge " neanmoins de reconnaitre le Seigneur direct." (2) It is true that the domaine utile of a Seignior is in one res- pect more extensive than that of a Censitaire^ for the latter, according to the words of Pothier, " n'a que Vutilite pe- " cuniaire de la chose., et ne peut se rien arroger de ce qui " consiste plus en honneur qu'en uiilite pecuniaire ;" whe- reas to use again the words of the same author : " La sei- " gneurie utile de celui qui tient un heritage a titre de fief, " comprend meme les droits honorifiques attaches a Vheritage ^'- quHl tient en Jief.'' (3) In short, the grantee en censive has the land and all rights attached to it of merely pecuniary value ; whereas the grantee en fief has the same rights, and, in addition, those of an honorary character. In order, then, to determine whether water courses pass under a bail a ceWs, it would seem to be necessary to as- certain simply, whether the right to such rivers ought or ought not to be deemed an honorary right ? (1) Henrion de Pansey, vol. 1. p. 285. (2) Pothier, vol. 5, p. 4 ;— see also Dumoulin, Jiifs, tit. 1, § 51, glos. 2, no. 29 ; Prudhommo, eh. 17, p. 9o. {3) Pothier, vol. 5, pago 4. . Slh Now I am not aware that any writer upon the feudal law has ever asserted that there is any thing more hono- rary in the right to water than in the right to dry land. The droit de c/iasse was doubtless an honorary right, droit honorifique^ and, under the law > of France a mere rotnrier was not allowed to exercise that right on his own property, even held enfranc-allea. (1) The droit de ji^che^ on the contrary, certainly was not deemed a droit honorifique. Herve, after a careful examination of the subject, concludes thus : " 11 est done vrai que la peche n'est pas un droit es- " sentiellement feodal. Cependant comme ce droit estle " plus communement exerce par les Seigneurs de jiefSj tant " parce que les T^ro^xieies. feodales sont les plus nombreuses et *' les plus etendues, que parce que les concessions a cens em- " brassent rarement la piclie^ ce meme droit tient presque " toujours a la feodalite dans Vusage et par le fait. Ainsi, *' c'est un droit de propriete^ auquel un caractere de feoda- " lite se m^Ie le plus urdinairrment.'^'' (2) And Henrion de Pansey, althoagh he speaks of t'la droit de piclie as belonging to Seigniors — says that the droit de peche differs from the droit de cJiasse in this essential point, that — " le droit de *' chasse est purement honorifique ; et tout le monde est d'ac- *^ cord que la peche est un droit utile et domanial." (3) As to the other advantages resulting from the ownership of water courses, such as the right to use them for agricul- tural and manufacturing purposes, it certainly cannot be pretended that they consist plus en honneur qu'en utility pecuniaire. The foregoing authorities and remarks establish, I think, these three propositions : — Istly. That the owner of a/?e/"is entitled to the unnavigable rivers within the limits of his (1] Pothier, Propriete, no. 37. (2) Herve, vol. 7, p. 369 (3) Henrion de Pansej, vol, 1. p. 671. 88^ grant, as an accessory to the soil ; or as Herve says : parce quHl a la propriete du sol qu'eUes haignent^ and as part of the domaine utile vested in him by the conirat dHnfeodcUion, 2dly. That the domaine utile which is transferred by a bail d cens, is as extensive as the domaine titile held under a grant en fief ^ excepting only, as regards those rights which consist "plus en honneur qv?en uiilite pecuniaire. — 3rdly. That a right to unnavigable rivers cannot be considered as one of the last mentioned rights : la distinction des eaux et du ter- ritoire^ being as Herve says, veritablement une distinction futile et inadmissible. The three foregoing propositions, if well founded, (and I am satisiSed they are so) justify the conclusion, that Censi- taires are entitled to the unnavigable rivers within the limits of their own lands. § 5. On the part of the Seigniors, however, it is contended that, as a matter of fact at least, it is certain, that in France Seigniors owned the rivers even that v^^atered the lands of their Censitaires ; and that it is impossible to reconcile that fact with the doctrine that the water passes with the land from the Seignior to the Censitaire^ in the same way that it passed, with the land, from the Crown to the Seignior. The fact alleged on behalf of the Seigniors (which I feel to be one of very great importance,) is far from being a settled point, and is still regarded as an undecided question in France. I must admit, however, after a careful examination of all the works on this subject to which I have had access, that there seems good ground for believing that the unnavigable rivers in France, even dans les piys coutiimicrs^ were not, gene- rally speaking, owned by the Censitaires whose lands were watered by them ; but, on the contrary, that those rivers ge- nerally, although not universally, belonged to the Seigneurs feodaux. The apparent discrepancy between the state of things, which it would seem existed in France, at the time of the 89 h Revolution of 1789, and what I consider was, even then, the abstract rule of law on the subject, may perhaps be explain- ed in some one of the modes suggested by the learned pre- siding chief JQSticc, who dwelt fully upon this point ; or it may, perhaps, be accounted for by the change that has taken place in the nature of the bail a cens, since the great mass of the lands in France were conceded. At that time, the domaine utile of a Censitaire was hard- ly more extensive than the right which a tenant now has, under a bail a ferme ; the Censitaire could not remove the buildings on his land, nor even make any important change in the mode of cultivation, he was not in fact the owner of the soil. (1) It was not until the time of Dumoulin, that the bail a cens commenced to be viewed in the light in u^hich we now regard it, and we have seen that, before the end of the feudal tenure in France, the estate of the Censitaire was described by Henrion de Pansey, as la propriete absolue du domaine utile. The same principle therefore, which gives the unnavigable rivers in Canada to the Censitaires., would have precluded the great mass of the Censitaires in France from any claim to them. In one woi-d, Censitaires^ in Canada, were from the very first really proprietors of their lands ; whereas the Censi- taires^ in France, were not so at the time when the great bulk of the lands in France were conceded en censive. The change which, in later years, took place in France in the nature of the bail a cens, of course, gave to the Cen- sitaires a higher estate in their lands than tiiey had before ; but could not enable them to advance a claim to water cour- ses, which had remained in the possession of the Seignior at the time the grants en censive were made. (1) Championnicre, p. 591 ;— Dumoulin, Fiefs, t. 1, § 51 ;— glos. 2, no. 28. 90^ Assuming however for the argument, that the unnaviga- ble rivers in France were generally in the possession of Sei- gniors, still with the knowledge which we possess as to the origin and growth of seigniorial rights, I do not think we would be justified in inferring, from the fact of such pos- session, that the Seigniors had acquired those rivers under a rule of law upon which we could now act in Canada. Such an inference would be the less justifiable, when we bear in mind that the existence of any general rule of law, in France, to that effect, is, as I have already observed, de- nied by Bacquet, Loyseau, Domat, Pothier, Souchet, Mer- lin and many others ; and it appears to me impossible that any such rule of law could have existed in France, without its being known to those men ; or that, if it had been known to them, they could have written as they have done. § 6. It will moreover be found that but very few^ of the au- thors cited in support of the pretention of the Seigniors, can be understood, as affirming the existence of any such general rule of law in favour of the Seigneurs feodaiix. I am not now to be understood as alluding to the writers who support the claims of the Seigneurs as hants-justiciers. I have already explained the grounds upon which I deem it impossible to assert that, under the Coutume de Paris^ Sei- gniors haiits-justiciers were entitled to all the waters within their jurisdiction ; and the authorities which tend to cause water courses to be regarded as a droit de jf/slice, are, not only, not in favour of the claim of the Seigniors as Seigi?pvrx feodaux, but are directly adverse to that claim. Putting aside, therefore, the writers who are in favour of the Sei- gneurs hauts-justiciers, the following are, I believe, the au- thors cited as supporting the claims of the Seigniors as Sei- gneurs feodaux. (1) (1) Seo Mr. Chorrier'a factum, pp. 53, 54. 91 h Coquille, Loysel, Chassanee, Legrand, Chopin, Sal- vaing, Lebret, Poulain-Duparc, Lefevre de la Planche, Guyot, Herve, Henrion de Pansey. (1) I shall now refer very briefly to the above authorities in detail, in order to show that but few of them can be cited as affirming the existence of any general rule of law, either throughout customary France generally, or the Custom of Paris in particular, under which owners of fiefs could claim water courses within the lands of their Censilaires. Coquille is doubtless a high authority ; but it must be borne in mind that the work quoted from is a commentary on the Custom of Nivernois, which differs very materially from the Custom of Paris, as will be seen by reference to the three chapters, titres^ in the Custom of Nivernois, relating to rivers^ &c., forests and banalite^ &c. As regards the matter now under consideration, it is sufficient to observe that the Custom of Nivernois expressly speaks of bannal rivers, rivieres banales, whereas there is not one w^ord on this subject in the Custom of Paris, although it bears date 45 years after that of Nivernois. Coquille, after observing that unnavigable rivers were repiitees publiqiies^ under the Roman law, adds : " Mais en France les Seigneurs le s tiennent pour la pluspart en propriete domaniale." I understand this passage as meaning simply, that, although under the Roman law, the rivers in question were deemed public property, yet that, in France, they were con- sidered private property, and that they were generally in the possession of the Seigniors. The expression " les Seigneurs les tiennent pour la pluspart en propriete domaniale^ " is not one which such an accurate writer as Coquille would have used, had he intended to say that Seigniors /eoJawx had, by law, an exclusive right to all unnavigable rivers within their (iefs^ whether upon conceded or unconceded land. (1) I do not include the quotation from the Repertoire de Guyot in tliislist; because, although the article 3fo!//i7i, in that work, concludes in favour of the Sei- gniors, the subse(|uent article Rivihre^ in the.-ame work, is against them. 92 /j Loysel remarks merely : " Les petites rivieres et chemins " si>nt aux Seigneurs des terres et les ruisseaux aux parti- '' culiers tenanciers" (1) ; and cites in support of this opinion Bouteiiler, Souwie rurale, (which, it is to be observed is in favour ol the Seigniors hauts-justiciers^) and the passage from Coquille to which I have already adverted. With respect to Chassanee and Legrand, (two of the other authors on the list) it is sufficient to observe, that the former wrote with reference to the Custom of Bourgogne and that the latter is a commentator upon the Custom of Troyes ; both of which Customs speak expressly of bannal rivers (2) and, in that respect, differ from the Custom of Paris. Chopin is quoted by Charapionniere as one of the authors who maintain that the ownership of unnavigable rivers is regulated exclusively by title and possession, and the passage from Chopin, in Championniere, shows clearly that such was the opinion of the former. The opinion of Salvaing (who must, I think, be considered as speaking of what was law in the pays de droit ecrit rather than in the pays coutumiers) (3) seems to be in favour of the Seigneurs hauts-j us f icier s and not of the Sei- gneurs feodaux. (4) " Et ces rivieres appartiennent en " propriete aux Seigneurs du territoire ou elles coulent par " la Coutume de France attestee par Bouteiiler. " Now the Custom of France, as attested by Bouteiiler, is in favour not of the Seigneur feodal^ but of the Seigneur haut-jii slider. The observations of Salvaing, in the page following that just quoted from, show most plainly that he did not imagine that there was any exclusive rule of law on this subject in favour of Seigniors. (1) 1 Loysel, p. 275. (2) As to Custom of Bourgogne, see Richebourg, vol. 2, p. IISO ; as to that of Troyes, see same author, vol. 3, p 252. (3) Salvaing was Seignior of the place of that name, and premier president de la ohambre des comptes du Roien Dauphinc, {pays de droit ccrit.) (4) Salvaing, page 216, ed. of 1731. 93 A Lebret and Poulain-Dnparc speak positively of iinna- vigable rivers as belonging to Seigniors ; but they do not advert to any general law on the subject ; nor do they give any reason in support of their opinions. Lefevre de la Planche does not express any opinion of his ov/n, but remarks that Bacquet who maintained that Seigniors had no greater rights in those rivers than other persons, s'ecarte de Vavis des autres auteurs en ce point. Guyot (1) gives very satisfactory reasons in support of the opinion, that, in the absence of any express rule of law, the claim of the Seigneur feodal should be considered su- perior to that of the Seigneur Iiaut-justicier, and adds that, in les pays de coutume, ces rivieres sont generalement vn droit de Jief. This author does not however discuss the question whether a Sei^jnior can be deemed the owner of the water courses upon the lands of his Censitaires. The opinions of Herve and of Henrion de Pansey, on a question of this kind, are entitled to the highest consi- deration ; and they are, in so far as regards the mere his- torical fact of possession, directly in favour of the claim advanced by Seignioris ; but it is to be remembered that those learned writers do not, in any way, countenance the idea, that there was any law which gave Seigniors an exclusive right to the unnavigable rivers within their seigniories. The passages already cited from their works, sufficiently esta- blish, that, in their opinion, the owners of fiefs were en- titled to the water courses within those fiefs simply as ac- cessories to the land upon which they flowed. The authors, above referred to, establish, I think, that, as a matter of fact, the Seigniors in France were generally be- fore the Revolution in possession of the rivers within their ^efs ; but it does not seem to me that they attempt to prove, or have any tendency to prove the existence of any general (1) Vol. 6, p. 633 andseq. 94 h rule of law on this subject ; and more particularly any law, under which, Seigniors, within the Custom of Paris, could claim the nnnavigable rivers upon the lands of their Censi- taires ; which is really the point in controversy. I In the course of the foregoing remarks, I have laboured to keep prominently in view the difference between the question, whether Seigniors, in France, were generally in possession of unnavigable rivers; and the question, whe- ther there was any general rule of law, giving to Seigniors, or to any other class of persons, an exclusive right to rivers of that kind. In connection with this point and with a view to indicate the practical importance of not confounding these two questions, I may observe that, although the mode in which the Seigniors, in France, originally acquired the ownership of the rivers which they held, may not after the lapse of centuries, have been of any importance, in so far as regarded the validity of their own titles (for a title by prescription is as valid as any other title) ; yet, that when the possession of those Seigniors is urged in support of the claim of the Seigniors here to rivers of the same description, it then does become essential to know, whether the pos- session of the french Seigniors was really the result of a rule of law or of some other and different cause. Before closing this brief notice of the long and valuable list of authorities from the old french law, for whicli we are indebted to the industry and research of the learned counsel for the Seigniors, it may be remarked that that list does not contain the names of any of the commentators upon our own Custom, the Custom of Paris. If it be said that the Custom of Paris is silent on this subject, I may ask, is not that silence itself of great impor- tance ? Several Customs anterior in date to the Custom of Paris, ex- pressly recognise the rights of Seigniors to unnavigable rivers. 95 h At the redaction of one Custom at least, (1) the Seigniors claimed an exclusive right to unnavigable rivers, and their claim was, after deliberation, rejected. We know that at the redaction of our own Custom, several hundred Seigniors were present, and the proces-verbal of the deliberations upon that important occasion, shows the number and variety of the claims that were advanced by Seigniors, and yet we do not find either in the text of the Custom, or in the statement of the rights to which Seigniors hauts-justiciers were entitled (2), or in the proces-verbal of the deliberations, even one word tending to show, that under that Custom, Seigniors either hauts-justiciers or feodaux had an exclusive right to unna- visfable rivers. "O" The Custom of Paris provides in a manner truly remar- kable, considering the period at which it was framed, for the freedom of property, (3) and for the protection of the in- terests of the lower classes, (4) and not only is there no pro- vision in it, under which any class of persons could claim an exclusive right to rivers, but, on the contrary, the article 187 furnishes an argument for the denegation of any such right. Under our Custom, " qui a le sol a ce qui est au-dessus et au-dessous." (5) This rule is in effect the same as the maxim of the english law, " that he who possesses land possesses also that which is above it " ; and it is under that rule, that, whenever the english law prevails, water courses are held to pass with the land upon which they run. The eminent men by whose advice the Custom of Paris was, in preference to so many others, extended to the french colonies, were influenced, one may reasonably suppose, in (1) Championniere, pp. 622, 640, and Richebourg, 4 vol. p. 708. (2) See Baequet, vol. 1, p. 2. " Articles concernant ces droits de justice, haute, moyenne et basse, contenus au cahier dresae lors de la redaction de la nouvelle Coutume de Paris." (3) Vide ex gr. art 186. "Droit de servitude ne s'acquiert par longue jouis- 'I sauce, quelle qu'elle soit, sans titro, encore que Ton en ait joui par cent ans, mais -' la liberte se peut reacquerir contre le titre de servitude par trente ans." (4) Vide ex gr. art. 71. (5) Le Camus on art. 187, 2 vol, G. C. p. 1573. 96 ^ such preference, by the considerations to which I have just adverted. They gave the colonists the feudal system : but it was the feudal system free from at least its worst abuses, and reformed in a spirit not only of justice but of liberality ; and the judges of this court would commit not only a grave error, but a grievous wrong, were they, in the absence of special legislation for the colony, to subject the seigniorial lands of Lower Canada to any burthen, however distinctly recognized by other Customs, if it have not in dubitably the sanction of the Custom of Paris which alone has force of law here. § 7. I do not now propose to review the authorities from the modern law of France that have been cited by the learned counsel for the Seigniors. The task would demand much greater powers than I possess, and would require more leisure than I have at my command. Moreover the contro- versy in France turns in a great degree upon provisions of the code civil^ to which we have nothing analogous in our law. I would not wish however that, from my silence in this respect, it should be inferred that I admit the proposition that has been advanced, namely, that, at present, not only the courts, but the majority of authors in France are op- posed to the claims of the riparian proprietors. (1) In order to show that it is not without reason that I refuse my assent to that proposition, I will give a few passages from the works of two very highly esteemed french authors, who, being among the latest who have written on this subject, have had the advantage of seeing and weighing almost all the arguments and opinions that have been adduced before us in support of the claims of the Seigniors. The works to which I refer are the Treatise of Raymond Bordeaux publised in 1849, and the supplement by Garneau (in 1851), to his former work " Regime des Eaux. " Raymond Bor- deaux, p. 75, no. 37, observes : « L'opinion qui fait les petits cours d'eau la propriete de« (I) Seo Mr. Chorrier'a factum, p. 85 97 A ' riverains, est assure mcnt la plus ancienne et la plus vul- ' gaire. ' Si elle compte parmi ses defenseurs des juriscon- ' suites reputes : M M. Pardessus, Toullier, Duranton, ' Troplong, Garnier, Daviel, Dupin, Chardon, Champion- ' niere, Sirey, Devilleneuve, (1) elle peut aussi passer pour ' etre I'opinion publique. Tous les proprietaires, tous les ' praticiens n'ont jamais doute que les petites rivieres ne ' dependissent des fonds qu'elles arrosent, et jusqu'a ces ' derniers temps ou la question qui nous occupe est sortie ' des arcanes de la science et s'est revelee au public, un ' grand nombre de contrats disposaient de la propriete de ' ces cours d'eau." At no. 40, the same author continues thus : •* Le premier argument qui se presente est un argument " historique. Merlin et Henrion de Pansey ont accrecUte " dans la jurisprudence moderne I'opinion que les Seigneurs " etaient proprietaires des petites rivieres. Personne ne " s'etant donne la peine de verifier Pexactitude de cette " premisse, les decrets des 4 et 10 aout 1789, qui firent " tomber la feodalite, furent invoques des deux cotes. " On a discute longtemps sur ce terrain, lorsque I'opinion " qui servait de base, est devenue I'objet de doutes qui se " sont afFermis depuis. De consciencieux travaux histo- '" riques ont demontre que d'abord toutes les rivieres, " grandes et petites, ensuite les rivieres non navigables " seulement, etaient dans notre ancien droit, des proprietes ••' privees, et que I'opinion qui tendait a en faire la propriete " des Seigneurs avait ete mise en faveur par les feudistes '' au moment seulement de la chute de la feodalite. Toute (1) " Voyez dans la nouvelle collection de M. Devilleneuve, tome 9, 2e partie, p. 337, " un releve tres-exact de tous les auteurs qui ont combattu pour ou contra. On peut " remarquer ici que les commentateurs du code civil ont soutenu generalement lo " droit des riverains ; qu'au contraire les auteurs de traites generaux sur I'ensemblo " du droit administratil' se sont plutot ranges du cote oppose, et qu'enfin, pahni ceux " qui n'ont traite que la question speciale des cours d'eau, les jurisconsultea ont "' apiwrte leur appui a la cause de la propriete privee, tandis que les ingenieurs se •' sont constitues les champions de I'administration. C'est I'antagonisme de deux " doctrines opposees, le resultat de preoccupations dififerentes, la consequence logiquo " des principes de deux ecoles antipathiquea." 98 h " discussion sur ce point est done desormais impossibU^ e.t " r argument a perdu toute sa force contre les riverains^ The passage from Gamier, which I cite at length, is in- teresting not only as giving a succinct review of some of the latest works on this subject ; but also as containing some valuable remarks on the french decisions relied on by the learned counsel for the Seigniors, and more particularly in relation to the arret of the cour de cassation of the 10th June 1846, upon w^hich much stress has been laid. The author refers to the opinion expressed by himself at page 132, vol. 3 of his former work, and remarks : " Dcpuis que nous avons public cette opinion, la question " de propriete des cours d'eau non navigables ni flottables a continue d'occuper les tribunaux et les jurisconsultes." ii. " Aux auteurs que nous avons cites, il faut ajouter M. " Rives, conseiller a la cour de cassation, dans un travail " pxtrait de son grand ouvrage sur les delits et contraven- " tions, extrait publie en 1844 ; M. Dufour, Traite du droit " administratif ; M. Marcade, Elements du droit civil, M. " Cotelle, Droit administratif, M. ' Championniere, De la " propriete des eaux courantes ; M. Ratier et M. Raymond " Bordeaux. " De ces divers auteurs, MM. Rives et Ratier sont les " seuls qui contestent la propriete privee ; le premier attri- " bue a I'Etat, au domaine public, la propriete des cour;? " d'eau non navigables, ni flottables ; le second, adoptant " la doctrine d'un arret de cassation du 10 juin 1846, sur " lequel nous reviendrons tout-a-1'heure, les range dans la " classe des choses qui n'appartiennent a personne et dont " I'usage est commun a tons. " M. Dufour distingue le courant d'eau du lit qui le re^oit. " II considere le courant d'eau comme une chose qui n'ap- " partient a personne, qui est commune a tous ; mais il re- 99 h " connait que la propriete du sol ou lit appartient aux ri- ** verains. " Quant a MM. Championniere, Marcade, Cotelle et " Bordeaux, ils n'hesitent pas a attribuer aux riverains la " propriete du lit et de Pelement qu'il conlient. Leur con- " viction est entiere. lis soutiennent leur opinion avec " beaucoup de force et de talent. Le premier et le dernier " ont donne, dans des traites speciaux, de grands develop- " pements a la these qu'ils ont adoptee. " Nous ne connaissons que deux arrets explicites sur la question qui nous oecupe. L'arret de cassation du 10 juin 1846 (1) et l'arret, tres-bien motive et en sens op- pose de la Cour d'Amiens, casse par celui que nous ve- " nons de rappeler. " Malgre notre respect pour les decisions de la cour su- " preme, nous ne pouvons nous rendre a la doctrine de son " dernier arret, et, apres une nouvelle etude de la question, " nous persistons a regarder les riverains comme proprie- " taires ; notre conviction est complete ; nous croyons qu'elle " serait partagee par le pouvoir legislatif si la question lui " etait soumise, comme nous le souhaiterions pour terminer une controverse qui peut se. prolonger longtemps encore. (( " Nous dirons d'abord que l'arret precite a ete rendu par " defaut apres une deliberation de trois jours, et, si nous " sommes bien informes, a la majorite rigoureuse des voix, " avec la participation d'un president de chambre qui avait " recemment quitte le ministere des travaux publics ; or, " I'on sait que les agents attaches a ce ministere, les inge- " nieurs, les prefets, sont generalement opposes a la pro- " priete des riverains, ne veulent voir dans les cours d'eau " non navigables, ni flottables, qu'une matiere que I'admi- " nistration peut reglementer a son gre, et dont elle a la (1) Dal'oz, 1846, v. 1. p. 177 ;— Journal du Palais 1846, p. 5 ;— Davilleneuve 1846, T. 1. p. 433. 100^ " libre disposition, bien entendu, dit-elle, pour le pins " grand avantage de Pagriculture et de I'industrie. f' Cette arret ne saurait, a notre avis, faire jurispradence. " II serait a desirer que la question fut portee devant les " chambres reunies et soumise a un debat contradictoire. " Nous pensons qu'elle y recevrait une solution favorable " aux riverains." I shall now briefly advert to two propositions in connec- tion with this branch of the question, which have been ad- vanced by the learned counsel for the Seigniors ; the first is that water courses pass under a grant en fief^ contrat dHn- feodation^ although not expressly mentioned, but that they cannot pass under a bail a cenSj unless expressly granted. No positive law of any kind has been or can be cited, in support of this pretension. Some passages from the valuable work of Henrion de Pansey have been cited as sanctioning it; but these extracts merely indicate the author's opinion that unnavigable rivers running between or over lands held en censivc did not belong to the Censitaires^ but to the Sei- gnior feodal. The author does not, however, speak of the Seigniors' ownership of the river, as being the consequence of the rule for which the Seigniors contend. In one passage he mentions the rivers as not being comprised (1) in the dif- ferent baiix d cens made by the Seigniors ; and in another he writes " puisqu'en donnant les terres adjacentes le Sei- ^' gneur s'est reserve la riviere." (1) These passages and the observations of Herve afford (I may observe incidentally) very conclusive evidence that, as a matter of fact, the owners oifiefs in France, even dans les pays coutumiers^ were, as a general rule the possessors of the rivers within the lands of their Censitaires ; but both Henrion de Pansey and Herve plainly attribute that possession to the conventions between the parties and not to any rule of law on the subject, (1) Henrion de Pansey, vol. 1, p. 660 — Same, p. 6C4. (1) Uenrion de Pausey, vol. 1, p. 664. 101 h The second proposition that we are called upon by the advocates of the Seigniors to affirm, is, that a grant of a riparian estate, if made en fief ^ will reach the middle of the river ; but that if made en cetisive^ it must be considered to stop at the water edge. Rives, Proudhon, Freminville, Caepola, Bouteiller, Le- ^and and Guyot (Repertoire) are cited as supporting this proposition. As to Rives and Proudhon, it may be remarked that they support a doctrine which would be fatal equally to the aquatic proprietary rights of Seigniors and of Censitaires. They hold " que le corps et le lit des petites rivieres font *' partie du domaine public aussi bien que T the appoint- ^ x o i i mentofii.T- visions relative to the appointment of Experts^ contained in ' the tenth Section of the Seigniorial Act of 1854, or in any other Section of the said Act, shall be repealed ; and in all Seigniories in which there shall have been requisitions for or appointments of Experts, the Commissioners shall act in every respect as though there had been no such requisition for or appointment of Experts, Seetion 11 of y, ^\\ the words after the words " following the said Seigniorial Act . ' \ c- icii • of 1854, amen- notice " in the first paragraph of the eleventh section ol the said Seigniorial Act of 1854, (including both the sub- Wherethe sections.) are repealed, and in lieu thereof the following are Schedule shall , . , „ . . , . , „ . . be left for exa- substituted, "ill some Convenient placc in the Seigniory, viva \ . <■'■ \ji charge of some fit and proper person, and the name of " such person and the place of deposit shall be indicated in " such notice ; and any person interested in the Schedule " may point out in writing, addressed to the Commissioner "^ and left with the person in charge of the Schedule, any " error or omission therein, and require that the same be Commissioner " corrected or supplied ; and at the expiration of the !!bjoctions°'^ " said thirty days it shall be the duty of the Commissioner " to be present at the place indicated in such Notice, and to " examine into and decide upon the objections made in " writing as aforesaid. " Sub-section 4 yj. The fourth sub-section of the twelfth section of the to apply oni'y Said Seigniorial Act of 1854, shall apply only to the Com- 8ioner°c"m- missioner who shall have finally completed the Schedule in s'h^'d°/'^° question, and not to the Commissioner or Commissioners who shall have taken any of the proceedings preliminary Xcf the completion of the Schedule. Sub-sections 5 VII. The fifth and sixth sub-sections of the twelfth sec- 12, repealed. tioH of the Said Seigniorial Act of 1854, are hereby repealed. 3y VIII. No revision of any Schedule shall be allowed, un- Period for de- iess application be made for the same within fifteen days ™jn of Sche-' after the Commissioner shall have given his decision, as^*^^®' ^'"^'^*^- provided for by the eleventh section of the Seigniorial Act of 1854, as amended by this Act ; and every such appli- cation shall be made by a petition presented on behalf of the party interested, to the Revising Commissioners or any one of them, si>ecifying the objections made to such Schedule. Upon the receipt of any such petition, it shall be the duty Proceedings of the Revising Commissioners, after having given eight |^ demamied'. days' notice to the parties interested, in the manner pres- cribed by the seventh section of the said Seigniorial Act of 1854, to proceed to revise the Schedule therein mentioned, and for that purpose, to hear, try and determine the matters alleged in the said petition. The proceedings upon such revision shall be kept of record, and if the Commissioners find any error, they shall correct the same. IX. The Commissioners selected to form a Court for the \vhere the re- revision of the Schedules, shall sit at Montreal for the Sei-mi^sioners gniories in the districts of Montreal and Ottawa; at Three ^'^^^^ ^'*- Rivers for those in the District of Three Rivers ; at Quebec for those in the District of Quebec ; at Kamouraska for those in the District of Kamouraska ; and at New Carlisle for those in the District of Gaspe ; but any petition for the revision of a Schedule may be presented to the Re- vising Commissioners, or any one of them, in any District. X. And inasmuch as the following fiefs and Seigniories, Special pro- namely : Perthuis, Hubert, Mille Vaches, Mingan and the tX°un^ettie" Island of Anticosti, are not' settled, the tenure under ^'''sniories- which the said Seigniories are now held by the present pro- prietors of the same respectively, shall be and is hereby changed into the tenure oi franc aleu roturier : The diffe- rence in value between each of the said Seigniories as here- tofore held and the same Seigniory when held in franc •aleu roturier, and also the value of the casual and other 4y Governor in Council may extend this section to Seigniories proved to be unsettled. rights of the Crown in the said Seigniories, shall be ascertained and entered in the. Schedule of the Seigniory, and the amount of the whole shall ujwn the fyling of the said Schedule become due and payable by the Seignior to the Crown, and shall form part of the fund appropriated in aid of the Censitaires ; And whenever the Governor in Council shall have been satisfied that any oXher fief or Sei- gniory is wholly unconceded, it shall be lawful for the Go- vernor to issue a Proclamation declaring that such fief ot Seignioiy shall thenceforth be subject to the operation of this Section of the present Act : and from and after the date of the publication of any such Proclamation in the Canada Gazette^ the tenure under which the fief or Seigniory or fi€:fs and Seigniories therein mentioned are now held, shall be changed into the tenure of franc aleu roturier ; and in making the Schedules thereof, the Commissioners shall deal with snch fiefs or Seigniories in every respect as if they had been specially mentioned in this Section. Special pro- XI. And whereas the third section of the Sei^nioral vision as to ^ Crown Seig- Amendment Act of 1855, does not apply to Seigniories held by the Crown in Lower Canada, whether such Seigniories form part of the domain of tlie Crown, or are so held under any title or from any other cause ; and it is expedient to grant to the Censitaires in the said Seigniories, advantages similar to those granted to the Censitaires in other Seigniories by the said Section ; therefore it is enacted, that — yioiodset 1. 'So Lods et Ventcs shall be demanded from purchasers rentes on sales . • i o, • • • i i i i i <-, after 30 May, in the Said Seigniories held by tfie Crown, upon purchases °^' made since the thirtieth day of May one thousand eight hundred and fifty-five ; Crown Agents 2. The Crown Agents for the said Seigniories shall, in by de^cblo^ns of ^^6 Collection of the revenue of the Crown therefrom, and Coim^""'^^ in regard of all other rights of the Crown as Seignior of Buch Seigniories, take notice of and be guided by the an- swers and decisions of the Special Court under the Seig- 57 niorial Act of 1854, upon the questions of Her Majesty's Attorney General for Lower Canada, except in so far as such rights may have been reduced or modified by any order or orders of the Governor in Council. o. All unconceded lands and waters in the said Sei-Fnconceded gniories, shall be held by the Crown in absolute property waters to be and may be sold or otherwise disposed of accordingly, and pg^ty"|,f j^g°' when gi-anted shall be gi-anted in franc aleu roturier. Cro^vn. XJI. And in amendment of the third section of the said ^®<=ti°° 3^^f P, . . . I , « -Act of l&oo, Sejgnional Amendment Act of 1855, it is enacted, that the amended : Commissioners or any one or more of them, shall forthwith viiue^of^u- make a separate statement for each Seigniory, shewing, as 1^^'^°;^°^'^!^''^ nearly as can then be ascertained, and subiect to correction J^^an time to "^ . ' •* the beigrnior, thereafter: instead of in- terest on his appro: share fund. . rranc- ,, , ^ • i n i i i • i i a/ei£. notto \)Qei} jrcinc aleu roturiev^ shall be charged with any perpetual in-ed^emabie irredeemable rent ; and whenever any such rent shall be rents or mu- go Stipulated, the capital thereof may be at any time re- tation fines, &c. i ? r j j deemed at the option of the holder of the land charged there- with, on payment of the capital of such rent calculated at the legal rate of interest ; and any stipulation in any deed of conveyance {translatif de propriete) of any such land, tending to charge the same with any mutation fine or any payment in labor, or tending to entail upon the holder of any such land, the duty of carrying his grain to any particular mill, or any other feudal duty, servitude or burthen what- soever, shall be null and void. 9/ XIX. And whereas the notice of the deposit of the Sche- Correction of an dule of any Seigniory, which the provisions of the thirteenth 22 and 26 of Section of the Seigniorial Act of 1854, should be given by ^^'t^^^^^jfj^^^^' the Commissioner who shall have made such Schedule, is (Jeposit of Sche- ' dule. erroneously referred to in the twenty-second and twenty- sixth Sections of the same Act, as a notice to be given by the Receiver General, — it is hereby declared and enacted, that the said twenty-second Section should, and the same shall henceforth be read and interpreted as if the words " by the Receiver General ", in the second and third lines of the said twenty-second Section, had never been inserted therein, — and that the said twenty-sixth Section should, and the same shall henceforth be read and interpreted as if the words " of the Receiver General ", in the third line of the said twenty-sixth Section, and as if the words, " in his hands ", in the fourth line of the same Section, had never been inserted therein. XX. This Act shall be called and kno^^^l as " The Sei- Short Title. gniorial Amendment Act of 1856." INDEX TO THE SEIGNIORIAL ACTS. {The items printed in Italics refer to the parts no longer in force.') ACTS, Repealed, vol. A, 2 a, 35 a ADMINISTRATORS, May redeem rentes constituees, vol. A, 24 a ANTICOSTI, To be held in franc-alleu roturier, " B, 3 j APPEAL, From decision of Judges, " A, 18 a ARREARS, Five years' rentes constituees may be recovered, *' Due at time of commutation, " ARRIERE-FIEF, Definition of, « • Value of lucrative rights of Seignior Dominant therein, " ATTORNEY GENERAL, To frame questions : — See Questions, " " 15 a BANALITY— Dm7 de banalite, Yearly value thereof on each lot, " " 4 a Mode of establishing the same, vol. A, 6 a ; vol. B, 1 j To become a rente constituee, vol. A, 6 a Application of revenue from Special Fund in reduction thereof, « « 22a CASUAL RIGHTS, Yearly value thereof on each lot, " " 3 a Mode of establishing the same, vol. A, 5 a, 6 a ; " B, 1 j To become a rente constituee, " A, 6 a OftheCrown, " " 7a Yearly revenue from, to be ascertained, " B, 5 J (( 26 a a 28a <( 30 a u 3a INDEX. CENS ET RENTES, Yearly value thereof on each lot, vol. A, 3 a Mode of averaging the same, « " 5 a To become a rente consiituee, ■ " " 6 a Application of revenue from Special Fund in reduction thereof : — See Rentes constituees, << « 22 a CENSITAIRES, May file appearance to the questions on seigniorial rights, " " 17a May be heard by counsel, " " 17 a May submit counter-questions, '' " 17 a Value of Crown rights in the seigniory to be apportion- ed among them, in reduction of the rentes constituees, " " 21 a May redeem the whole of the rentes in any seigniory, whether an opposition has been filed or not, " " 27 a May not pay the capital of rente consiituee, when oppo- sition has been filed to distribution of commutation monies, " " 23 a Provision for redemption of lands, when an opposition is in force, " " 33 a Seignior may receive the rente consiituee from the Cen- sitaire six months after deposit of schedule, when no opposition has been filed, " " 24 a Allowed eight days in each year (when Seignior is allow- ed to receive the capital) to redeem their rentes cons- tituees, without consent of Seignior, " " 35 a Persons occup}'ing land with consent of Seignior, to be deemed Censitaires, " " 39 a CLAIMS, Opposition to the distribution of the commutation money, within six months after notice of deposit of schedule, " " 23 a Effect and duration thereof, " " 23 a Of minors and others, " " 23 a Existing before notice of deposit (when an opposition is filed,) " " 25a COMMISSIONERS, Appointment of, " " 2 a Oath to be taken by, " " 2a Each may act in any part of L. Canada, yol. A, 3 a, 37 a Who shall severally be held to be the Commissioners,. . vol. A, 37a One Commissioner may give the notice, and others act thereon, " " 37a To prepare a schedule for each seigniory, a a Sa Public notice by, before commencing schedule,. vol. A, 7a, 37a May enter upon lands, &c., vol. A, 8 a May take evidence on oath, " " 8 a May cause a valuation to be made by experts, " " 9 a All lands heretofore commuted to be dealt with by Com- missioners (in making the schedule) as if they were \\q\(\ en roiure, SfC., '' " 28 a INDEX. COMMISSIONERS, No proceeding? of, to be impeached for informality, &c., vol. A, 29 a. Punishment lor obstruction in execution of duty,, vol. A, 39 a, 40a May inspect Notaries' repertories, vol. B, 7 j COMMUTATION, Acts of 8 & 12 Vic, repealed, " A, 2a Commuted lands to be entered in the schedule, u « 4 a Rente payable by any Censitaire in lieu of lods et rentes on any land partially commuted, to be held to be the value of such lads et rentes, " " «3 a. Lands heretofore commuted declared free from all sei- gniorial rights, " " 28 a CONCESSION OF LANDS, No lands to be conceded until after deposit of schedule, " " 14 a Future concession, " B, Sj CONVICTION, For obstructing Commissioner, &c., not to be quashed for want of form, vol. A, 39 a, 40a CORPOEATIONS, May redeem rentes constituees, vol. A, 24 a COSTS, May be awarded against either party, upon application for revision of schedule, " ** 13 a COUNSEL, May be heard by the Judges on the questions submitted, " " 16 a Number limited, vol. A, 16 a, 17 a COURT, Special, of Judges of Queen's Bench and Superior Court, vol. A, 18 a CROWN RIGHTS, Value to be ascertained in each seigniory, " " 3 a Casual how estimated, " " 7 a B, Ij To cease upon publication of notice of deposit of schedule, " A, 14 a Revenue therefrom to form part of fund, " " 20 a To be applied in each seigniory, to reduction of rentes constituees Tepresenting the lods ct rentes, " " 21a CROWN SEIGNIORIES, Schedules may be made, vol. A, 38 a ; vol. B, 4 J Lands to be granted in franc-alleu roturier, " " 5 / CURATORS :— See Tutors. DEBENTURES, May be issued, ... " A, 20 a Amount issuable, " " 20a A, 26 a (I 34 a 2.; , 3 .? A, 38 a B, 9 J INDEX, ENTAIL, Rentes constituees upon entailed lands may be redeemed, if there be an opposition in force, vol. Redemption allowed, '« ERRORS, Correction of, in the schedule, yol. A, 11 a; vol. B, In french version of Act of 1854, vol. In sections 22 & 26, « EXECUTION, Rentes (either above or under £10), maybe recovered by execution, for arrears not exceeding five years, '' A, 26 a Sale under execution not to have the effect of paying seigniorial rights or rentes constituees to which the property may be liable, " " 27 a EXPENSES INCURED UNDER THIS ACT, Payable out of Consolidated Revenue Fund, " " 19 a Separate accounts thereof to be kept, " " 21a EXPERTS, May be appointed in certain cases, vol. A, 9 a, 10a How appointed, " "9 a, 10 a Their powers, " " 9 a, 10a Appointment of a third, " " 9 a, 10 a Their decision to be entered in the schedule, " " 9 a, 10 a A sole expert may be appointed, vol. A, 10 a Commissioner may be either sole or Ikird expert, " " 10 a Filling up of vacancies, vol. A, 9 a, 10 a Their fees,.. , vol. A, JO a Repeal of all provisions relating to, • " B, 2 / EVIDENCE, Commissioners may take evidence on oath, " A, 8 a Penalty for refusal to give, " " 8 a May be denranded by Commissioners for revision of schedules, " '< 12 a Copies and extracts from schedules deposited in office of Superior Court (certified by the Clerk), to be deemed authentic,. " « 13a FEES, Experts, " " 10 a Clerk of Superior Court, for copies, &c., of schedules, " " 13 a FIEF NAZARETH, &c., Montreal, Act not to apply to fiefs Nazareth, St. Augustin, St. Joseph, Closse and Lagauchetiere,.. .• " " 29a Fiefs, certain, declared to be held in franc-alleu ro- turier, " B, 3; Governor may declare others to be held in in franc-alleu roturier, " " 4; INDEX. FRANC-ALLEU ROTURIER, Lands granted after deposit of schedule, to be in, vol. A, 14 a Lands heretofore commuted declared to be held in, " " 28 a Lands upon which mortmain dues have been paid de- clared to be so held, " <' 29 a Certain fiefs declared to be held in, " B, 3; Governor may declare other fiefs to be held in, " " 4 j Lands in Crown seigniories to be granted in, " " 5 j FUND CREATED FOR PURPOSES OF THIS ACT, Revenues appropriated to form a Special Fund, . . vol. A, 20 a, 21 a Separate accounts thereof to be kept, vol. A, 21 a Special Fund to be applied (after payment of expenses), in aid of the Censitaires, " " 21 a Proportion of fund coming to any Seignior may be paid to him (with interest) within six months after deposit of schedule, if no opposition is filed, " " 24 a Mode of distribution when opposition is filed, " " 24 a Receiver General to invest any portion not immediately required, " " 37a No part to be applied to the Crown seigniories or Je- suits' estates, " " 38a HUBERT, To be held in franc-alleu roturier, " B, 3 j HYPOTHECARY CLAIMS ON SEIGNIORIES, Persons having the same, to file an opposition to the distribution of the commutation money within six months after notice of deposit of schedule : — See Op- position,... " A, 23 a Rentes constituees created under this Act, to have pre- ference over other hypothecary claims, " " 25 a Mode of disposing of redemption or commutation money, when an opposition is in force, based on hypothecary claims, " " 34a INDIANS, Act not to apply to lands held in trust for, " " 29 a INFORMALITY, No schedule, or proceedings of Commissioners, to be invalidated by, " " 39a No proceedings for obstructing a Commissioner, to be quashed for,... " " 40a INTEREST, In what cases payable to Seigniors, vol. A, 36 a; " B, 5 J INTERDICTED PERSONS, Opposition by, " A, 23 a INDEX. INTEEPEETATION, • Act not to extend to certain Ecclesiastical, Crown, Jesuits' estates, or Ordnance seigniories, vol. A, 29 a Act not to affect arrears or other claims of Seigniors,.. . . " " 30 a Interpretation of certain words, <« « 30 a Intent of Act declared, " « 31a Interpretation Act to apply, " « 31a JESUITS' ESTATES, Act not to apply, « « 29 a Governor may direct schedules to be made for, " " 38a No part of Special Fund to be applied thereto, " " 38 a JUDGES OF QUEEN'S BENCH & SUPERIOR COURT, Attorney General to submit certain questions ; — See Questions, « " 15a Special session to be called for the hearing thereof, ... " " 18 o Who shall preside, « « 19a Special Judges may be appointed to replace others, vol- A, 18 a, 19 a Equal division, vol. B, Ij JUSTICES OF THE PEACE, Commissioners may command their assistance, " A, 8 a May commit any person convicted of obstructing Com- missioner, " « 39a LANDS, Description of in schedule, " '' 4 a May be entered upon by Commissioner, in making his examination for the schedule, " " 8 a None to be conceded until after publication of notice of deposit of schedule, " " 14a How may now be conceded, " B, 8 j Definition of the word " land," " A, 31 a Persons occupying with consent of Seignior, to be deem- ed Censr^aires, " " 39a Not to be hereafter charged with irredeemable rent, " B, S j LAUZON, SEIGNIORY OF, Revenues arising therefrom to form part of the seigniorial fund, ,. " A, 20a LETTRES DE TERRIER, Right of Seigniors to obtain, abolished, " *< 35 a LODS ET VENTES, Yearly value thereof on each lot, *' " 4a Mode of averaging the same, vol. A, 5 a ; vol. B, 1 j To become a rente constituee, vol. A, 6 a Apolicalion of revenue from Special Fund in reduction thereof, " « 21a Rente payable by any fiensitaire in lieu of lods et ventes, to be held to be the value of such lods et rentes on the land referred to, , " " 6 INDEX. LODS ET VENTES, To cease upon publication of notice of deposit of sche- dule, vol. A, 14 a from the passing of the amending Act, " " 36 a None payable in Crown seigniories, " B 4j Yearly revenue from, to be ascertained, " " 5 ; MARRIED WOMEN, Opposition by, " A, 23 a MILLE-VACHES, To be held in franc-alleu roturier, . " B, 3 j MINGAN, To be held in franc-alleu roturier, " " 3 J MILLS :— See Water Power. MINORS, Opposition by tutors, &c., « A 23 a MONIES ARISING FROM REDEMPTION OF SEIGNIORIAL RIGHTS, Opposition by persons having claims on any seigniory, to distribution of, vol. A, 23 a MORTMAIN, LANDS HELD IN, Rentes constituees thereon may he redeemed, " " 25 a Declared to be held en franc-alleu roturier, ** *' 29 a MUNICIPAL LOAN FUND, Money may be raised by Censitaires for redemption of the whole of the rentes in any seigniory, on the credit of, « « 27 a MUTATION FINES, To cease from and after deposit of schedule for seigniory, " " 14 a None to accrue after the passing of the amending Act, . . " " 36 a Provision for compensating the Seigniors, " " 36 a NOTARIES, Repertories may be inspected by Commissioners, " B, 7 J Penalty for refusal to allow inspection, " " 7 j NOTICE, By Commissioner, before commencing a schedule,, vol. A, 7a, 27 a Of public meeting in a seigniory, for appointment of experts, vol. A, 9 a Of appointment of a third expert, " " ^a Of schedule bemg ready for inspection, .... vol. A, 11a; vol. B, 2 j Ofdeposit of schedule, " « 11a; " " 2j Of the filing of questions, vol. A, 16 a OATH, To be taken by Commissioners, '^ " 2 a Commissioners may take evidence on, " *' 8 a INDEX. OPPOSITION TO DISTRIBUTION OF COMMUTATION MONIES, Must be filed within six months after deposit of schedule, vol. A, 23 a Effect and duration thereof, " " 23 a What parties must file, " " 23 a In default of, each Seignior may receive his share of Special Fund, &c., ._. « « 24a Mode of distribution when there is opposition, " " 24 a Seigniorial rights and rentes preserved in sales under execution, " " 27 a Opposition for preservation to be null, ,. " " 28 a ORDNANCE SEIGNIORIES, Act not to apply thereto, " " 29 a PENALTIES, For obstructing Commissioner, vol. A, 39 a, 40 a For refusing to give evidence, vol. A, 8 a PERTHUIS, To be held enfranc-olleu roiuner, " B, 3 J PROVISIONS, Average annual value of, " A, 5 a QUESTIONS, To be submitted to the Judges by the Attorney General, " '' 15 a To be published, « « 16 a To be taken into consideration and decided as soon as possible, " " 16 a Seigniors may be heard thereon by counsel, and may file counter-questions, '' " 16 a Censitaires may do likewise, " " 16 a Copies of counter-questions to be furnished to all parties, " " 17 a Mode of hearing, " " 17a Form of decisions, " " 17 a Effect of decisions, " " 18 a Separate decisions may be reradered upon particular questions, " *' 18 a Appeals allowed when there is a dissentient Judge,. ... " " 18 a Equal division of Court on, '' B, 7j QUINT, Release from, " A, 14 a Yearly revenue of, to be ascertained, " B, 5 j RECEIVER GENERAL, Triplicate of each schedule to be transmitted to him,. . . " A, 13 a To pay to each Seignior his share of the Special Fund, with interest, on receipt of a certificate from Clerk of Superior Court that there is no opposition to the pay- ment of the redemption monies, " " 21a To pay the same to the Clerk of the Superior Court when there is an opposition (except the interest, which is to be paid to the Seignior,) " " 24 a INDEX. EECEIVER GENERAL, Further directions concerning payment wlien an oppo- sition is in force, vol . A, 33 a To pay interest to the Seigniors after 1st January, 1856, if the fund be not then devided, " << 36 a To keep special accounts thereof, , " " 36 ft To invest any portion of the fund not immediately re- quired, « « 37a REDEMPTION OF RENTES :— See Rentes constituees. REGISTRATION, Rentes constituees to have preference over other hypo- thecary claims, without registration, " " 26 a RELIEF, Value to be ascertained, <' B, 5 RELIGIOUS COMMUNITIES, May invest in real estate monies accruing from re- demption of rentes constituees on any lands in sei- gniories held in mortmain, or out of the Special Fund, " A 25 a Act not to apply to the seigniories held by the semi- nary of St. Sulpice, « " 29a RENTE CONSTITUEE, Yearly value of seigniorial rights on each lot to become, « « 6 a Value of rights of Seignior Dominant to be the capital of a rente constituee payable yearly to him, " " 7 a Revenue from Special Fund (after deducting expenses), to be applied in aid of the Censitaires in each sei- gnior}', in reduction of, (f " 21a Seignior may receive from the Censitaires the price of,. " " 24 a Corporations, tutors, &:c., and persons holding entailed lands, may redeem, « " 25 a Religious communities holding seigniories may invest the redemption monies of any rentes constituees in real estate, " " 25 a To be considered as representing the seigniory, in res- pect of claims prior to deposit of schedule only, " " 26 o. To have preference over other hypothecary claims, with- out registration. ., '< « 26 a Not exceeding five years' arrears, may be recovered by execution, " '< 26 a Not purged by sale of land under execution, " " 27 a Opposition for preservation thereof shall not prevent sale, " " 28 a To be redeemable, by consent unless the seigniory is entailed, or held by tutors, &c., " " 24 a Censitaires in any seigniory may redeem the whole of the rentes therein, whether there be or be not an oppo- sition, " « 26a Mode of payment, " " 27 a Money may be borrowed from Municipal Loan Fund, . " '' 27 a May be redeemed, notwithstanding the filing of an op- position, by payment of capital and interest to the Re- ceiver General, " " 33 a INDEX. RENTE CONSTITUEE, How disposed of, when •pposition is founded on a substi- tution, vol. A, 34 a Censitaires allowed eight days in each year on which to redeem, « " 35 a REPERTORIES, Of Notarie? may be inspected by Commissioners, *' B, 7j Expense of inspection payable by Seignior interested,. . . " " 1 j HETRAIT— (Droit de Retrait), Not to be deemed a lucrative right, " A, 4 a Retrait conventionnel abolished,. " " 37 a REVISION OF SCHEDULES, Commissioners to be selected to form a court of revision, " " 11a Commissioners disqualified to sit, vol. A, 12 a ; vol. B, 2 j Where Commissioners shall sit, vol. B, Bj Application for revision of schedule, " A, 12 a Proceedings on application, " " 12 a Period for revision limited,. « B, 3 j Proceedings when revision is demanded, o.... " " 3 J ST. SULPICE SEMINARY, Act not to apply to seigniories held by, "^ A, 29 a SALES UNDER EXECUTION :— See Execution. SCHEDULE, To be prepared for each seigniory, " " 3 a Contents of, vol. A, 3 a, 4 a Public notice before commencing the same, vol. A, 7 a To be open for inspection when completed, " B, 2 J Correction of errors, " " 3 jf Not to be completed until all questions in dispute regard- ing rights of Seigniors are decided, '' A, 11a Court for revision of schedules to be formed by selection of four Commissioners, ^ " " 11a No revision to be made except upon due applica- tion, vol. A, 12 a ; vol. B, 2 _; Proceedings thereon, " " 12 a; " " 3 j To be deposited in triplicate, vol. A, 13 a Clerk of the Superior Court to give extracts, &c., " " 13 a If all have not been deposited by 1st January, 1866,. ... " " 36 a For the lands in Sherrington, may be deposited without waiting for decision of Special Court, *' " 37 a Governor may direct schedules to be deposited for Crown seigniories and Jesuits' estates,. . » " " 38 a Not to be impeached for informality, " " 39 a SEIGNIOR, Definhion of the word " Seignior," '* " 30 a Debts due by, to the Crown, " B, 1 j SEIGNIOR DOMINANT, Value of his rights to be ascertained, " A, 3 a INDEX. SEIGNIOR DOMINANT, Amount of Special Fund apportioned to each seigniory- shall belong to the Seignior, subject to the right of Seignior Dominant, - vol. A, 22 a Debts due by, to the Crown, " B, la SEIGNIORY, Definition of, " A, 30 a Boundaries of, " B> 8/ SHERRINGTON, Lands in, vol. A, 29 a, 37 a SUPERIOR COURT, Triplicate of each schedule to be deposited in office of the district, vol. A, 13 a Clerk to give extracts, &c., " " 13 a TITLES OF ACTS, Act of 1854, " « 31a Amending Act of 1855, " " 40 a 1856, " B, 9; TITLES OF LANDS, In determining charges on each lot. Commissioner to be guided by the title of the owner, " A, 4 a TUTORS, CURATORS, &c,, Opposition by,. " " 23 a Responsible for neglect, " " 23 a May effect the redemption of rentes constituees, " " 24 a If there be no opposition in force, " " 27 a Redemption allowed, " ** 33 a VALUATION, Of Seignior's rights, " " 3 a Of Crown rights, " " 3 a Of rights of any other Seignior Dominanf, " " 3 a Of total rights on each lot,.. " " 3a Average annual value of provisions, « « 5 a General rules for, vol. A, 5a ; vol. B, 1 j Banality, " " 6a; " " Ij Other rights, vol. A, 6 a Ma7j be viade by experts i » certain cases, " " 9 a WATER POWER, Provision concerning the taking of land required for using water power by Ihe Seignior ; or by the owner of adjoining land, " " 14o V UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. Form L9-32m-8,'58(5876s4)444 -5anada,t_3p ec i a 1 Court Held under the^uthority of the Seignior- ial Act of 1854 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 548 566 9 ]bower -Gasada' -y-f^rsfw-i-m JL 41 C165 1 V.2