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 ,V 1) D R E S S 
 
 AT THE BAH OP THE 
 
 ¥ LEGISLATIVE ASSEMBLY OE CANADA, 
 
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 DELIVERED ON THE 11th AND 14th MARCH, 1! 
 
 ON' JU:[rAL.V OF CERTAIN 
 
 PROPETETOPvS OF SEIGNIORIES f 
 
 4 AG 
 
 LOYfER CANADA. 
 AINST THE SECOND READING OF THE BILL 
 
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 I X T I T tr L E D : 
 
 
 A.N ACT TO DEFIISiE SEIGNIORIAL RIGHTS IN LOWER CANADA, 
 AND TO FACILITATE THE REDEMPTION THEREOF."' 
 
 
 •X'' 
 
 By CHRISTOPHER DUNKIN, M. A. 
 
 A D V O C A T 
 
 ^' 
 
 QUEBEC: 
 
 FRlNTriD AT THE CANADA GAZETTE OFFICE 
 
 1853. 
 
 4* 
 
 l^4^4^^^4^^^4^''^^-4'^^ 
 
ADDRESS 
 
 AT THE BAR OF THE 
 
 LEGISLATIVE ASSEMBLY OF CAMDA, 
 
 DELIVERED ON THE 11th AND 14th MARCH, 1853, 
 
 ON BEHALF OF CERTAIN 
 
 PROPETETORS OF SEIGNIORIES 
 
 IN 
 
 LOWER CANADA, 
 
 AGAINST THE SECOND READING OF THE BILL 
 
 intituled: 
 
 AN ACT TO DEFINE SEIGNIORIAL RIGHTS IN LOWER CANADA, 
 AND TO FACILITATE THE REDEMPTION THEREOF." 
 
 By CHRISTOPHER DUNKIN, M. A. 
 
 ADVOCATE 
 
 QUE BEC: 
 PRINTED AT THE CANADA GAZETTE OFFICE. 
 
 1853. 
 
Digitized by the Internet Archive 
 
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 IVIicrosoft Corporation 
 
 http://www.archive.org/details/addre^satbarofleOOdunkrich 
 
K e€ixih P< as. irs3./nAiM 
 
 ADDRESS 
 
 Mr. Speaker: On behalf of a number of proprietors of Self^niories in Lower 
 Canada, 1 appear before you, to represent certain objections which they feel 
 themselves justified in urging, to the further progress of the Bill, which has just 
 been called up before this Honorable House. And I do not say anything extra- 
 ordinary, when I say that I so appear with a good deal of embarrassment, and even 
 of regret. 1 am before a tribunal, certainly of an extraordinary— certainly also oi a 
 very high — character ; and I have to contend against strong prepossessions and 
 powerful interests. I have to speak on behalf of clients, few in number, and of 
 extremely small influence in the community; and I feel that I labour under, 
 difficulties of a peculiar character, as w^ell from the physical impossibility of 
 speaking in both the languages used by Members of this Honorable House, as from 
 other causes. I should be happy, were I able to do so, to address the House in 
 both languages; but I know that those Members whose language I do not use, 
 will be capable of understanding me ; and 1 trust they will feel that my failure to 
 address them in their own tongue, proceeds from no disrespect. Another regret 
 also that I feel on this occasion, is, that I am obliged to stand here alone. The 
 season of the year, and the indifferent health of the learned Counsel — greatly my 
 superior — who is associated with me, have prevented him from appearing befoie 
 you ; and no one more than myself feels how impossible it is for me to fill his 
 place. But I have not felt that I had a right to decline on this account to give my 
 services when required. I have not shrunk from the duty ; because, though I feel 
 ray inadequacy, I also feel confidence in the fairness of this high tribunal. I 
 believe that its members will listen patiently, honestly, and impartially, because of 
 their high position, and in spite of the insignificance of him who speaks ; and I am, 
 besides, so convinced of the truth of what I have to say, that I do not believe I shall 
 speak in vain. 
 
 Let me say here, and say earnestly, that I do not stand here as the apologist for 
 the Seigniorial Tenure. I have nothing to do with its merits, if it have any ; nor 
 with its demerits, be they what they may. I am not here the partizan of a system ; 
 but the Advocate of individuals, whose misfortune it is that their pioperty is of a 
 peculiar character. As their Advocate, I speak merely of law ; I have to convince 
 you that these my clients are really proprietors, who have entered into contracts, 
 who have rights recognized and guarded by the law, which rights this measure will 
 most injuriously afifect. When 1 take this position, I speak under sanction of the 
 Speech at the opening of this Session, from the Throne, and of the reply of this 
 Honorable House. I know that it is a position to which every branch of this 
 Parliament is pledged ; that it is admitted, that no rights of property must be 
 disregarded, nor legal decisions of Courts set aside. Thus speaking then, under 
 these sanctions, in spite of the prepossessions and interests against which I have to 
 strive, notwithstanding the measure I oppose is introduced by an Honorable 
 Member of an Administration generally understood to be strong enough in the 
 confidence of this House to carry its measures, — I still have confidence in the 
 justice of my cause, and in this High Tribunal ; 1 believe that I shall not labour in 
 vain. 
 
 I have to lay before this House and the country, facts not generally known. 
 Much has been published to the world, since this subject was last discussed, which 
 had previously been obscure. Several volumes have been printed, which con- 
 tain the greater part of the titles of the Seigniories of Lower Canada ; and besides 
 these, reports, in both languages, of a number of Arrets which had never previously 
 seen the light. There have also been published important extracts from the cor- 
 respondence of high officers of the French Government, of the Governors and In- 
 tendants in Canada, the Ministers of State, and even ol"the Sovereign. And it is my 
 belief — my full and firm belief— that from these titles now first placed in a position 
 to be understood, these Arrets now first made known, this correspondence now first 
 opened to historical research and legal deduction, a case can be made out, which 
 could never before have been made out. I have not the vanity to hope that I shall be 
 
 481 
 
able to make out such a case, by merely drawing new arguments from old facts ; 
 but I have studied these volumes, as attentively as possible, and as I believe none 
 other ever did study them ; and it is upon this close examination that I found my 
 opinion. Their contents are not arranged in order either of time, or of place ; and 
 the French and English versions are not even arranged in the same order. This I 
 mention, to show the difficulty of studying them ; and from no intention of impu- 
 ting blame to those who compiled them. In going over them, I soon found that to 
 understand their contents, it would be necessary to arrange them in the order of 
 their dates ; and I have therefore eo done. Thus arranged, I have carefully gone 
 through them all, and have ascertained with tolerable accuracy to what Seigniory 
 each title refers. I think I have made out a nearly perfect list of them ; that I under- 
 stand all the titles ; and I now say, that from this examination of the whole, and from 
 the comparison of each part with the rest, I have been forced to conclusions to 
 which I never thought 1 should arrive, — to the conviction, that the fact in regard to 
 this question is that which few of late years have believed. I enter into these ex- 
 planations, because I may be thought to owe an apology to the House for laying 
 down propositions, for which those who have not studied the subject so carefully as 
 myself are not prepared. If I fail to bring forward good reasons, on my head must 
 be the responsibility. 
 
 I believe there is no question of the truth of one proposition — that it has of late 
 been held as the fixed tradition of the country, that the Seigniors are not pro- 
 prietors — are not what an Enghsh lawyer would call holders of an estate in fee 
 simple ; but are rather trustees bound to concede at low rates of charge to all who 
 apply to them for land. On this proposition alone, can the provisions of this Bill 
 possibly be justified. If this be properly held, I admit that much is to be said in 
 favour of it. If the Seigniors were originally merely trustees bound to concede at 
 low charges and reserves, it may follow that only a moderate degree of mercy 
 should be dealt out to them. Still, even on that supposition, much may be said, 
 owing to the peculiar position in which they have stood since the cession of the 
 country. It would have been easy — and it is common — to object to the measure 
 before the House on this latter ground ; for, supposing even that before the cession 
 Seigniors were bound to concede without exacting more than a certain rent, or 
 reserving water courses, wood, banality or any thing else, still it may be argued 
 that for ninety-three years the machinery of such old law has ceased to exist ;~that 
 the Courts and the Legislature and the Government have treated them as absolute 
 proprietors,^and thus have changed the quality, so to speak, of their tenure, and placed 
 them in a new position. This being so, it has been argued, and I think properly, 
 that it would be hard to fail to respect those rights of property which such a 
 usage has established. My duty to my clients, however, and to truth leads me not 
 to stop short at this argument. It is ray duty to object altogether to the proposition 
 on which it is attempted to defend the present Bill; and I do now distinctly deny 
 the proposition, that the Seigniors are to be looked upon as trustees for the public — 
 as agents bound to discharge duties of any kind whatever. My proposition, on the 
 contrary, is, that the Seigniors are and always have been proprietors of real estate; 
 that whatever interference may ever have taken place with reference to their 
 property, has been arbitrary, irregular, inconsistent with principle, and not equal in 
 extent to the interference exercised over the property of the Censitaire. The grants 
 to the Seigniors were grants of the soil, with no obligation like that supposed ; and 
 though during certain periods, their property was interfered with, it was never 
 interfered with to the extent to which similar interference took place in respect to 
 the property of the Habitant. If the Seigniors were not holders of property, there 
 were no such holders ; if they were not proprietors, there were none who could 
 consider themselves so. I am aware, that in this statement I run counter to tradi- 
 tions of late currently held — to doctrines which are supported by the authority of 
 men for whom I have the highest respect, and from whom I differ with reluctance ; 
 but from whom I dare to differ nevertheless, because I believe that I have looked 
 more closely than they have done, or could do, into the titles and An-ets^ which 
 form the evidence on this subject. I neither reflect on their ability nor on their 
 integrity ; I do not doubt the honesty of their conclusions ; but at the same time, I 
 cannot help seeing that their doctrines were well fitted to obtain popular credence, 
 because it is always popular to tell the debtor that his obligation is not justly in- 
 curred. I carinot resist the force of the evidence which has convinced me, that on 
 this subject, circumstances have given currency to opinions which will be found on 
 
examination to be as destitute of foundation, as any the most absurd of opinions 
 ever vulgarly entertained. 
 
 If the Seigniors be trastees and not proprietors, this much must be conceded — 
 that their capacity of trustees must arise, either from the incidents of the law in 
 France before their grants ; or from something which took place at the time of 
 making the grants — from something done here in the colony, or by the authorities 
 in France, before the cession ; or, lastly, from something done since the cession of 
 Canada to the British Crown. On all these points, I maintain that there is nothing 
 to show the Seigniors to have been trustees, and not proprietors — everything to 
 show that whatever interference was exercised over their property, was of an ab- 
 normal character. 
 
 As to the tenor of the prior French law, interpreting the subsequent grants in 
 Lower Canada, I will not say much ; because, though addressing a tribunal, I am 
 not addressing a body composed exclusively of professional men, and ought 
 not therefore to talk too abstruse law. I shall go as little as possible into details ; 
 but, venturing as I do on a position which professional men will and must attack, 
 it is necessary for me to state, in some detail, my reasons for the conclusions to 
 which I come. 
 
 It would be a singular thing, considering what we know of France, if in the 
 seventeenth and early part of the eighteenth centuries, any idea should have been 
 entertained by the French Crown, of creating a body of aristocratic land-holders, 
 as mere land-granting trustees for the public, especially for a portion of the public 
 then considered so low as to be unworthy of attention. For ages, indeed down to 
 the great revolution in the 18th century, the doctrine which prevailed in France, 
 was a doctrine which made public trusts a property ; not one which made of pro- 
 perty a public trust. The Seignior who was a Justider^ was the absolute owner of 
 all the many and onerous dues, which he collected from the people subject to his 
 control. The functionaries, even, whom he employed to distribute the justice — 
 such as it was — which he executed, held their offices for their own benefit — bouo^ht 
 them and sold them. Trusts were then so truly property, that the majoiity of the 
 functionaries of the very Crown itself possessed their oflices as real estate, which 
 might be seized at law, sold, and the proceeds of the sale dealt with just as though 
 the offices had been so much land. The whole system regarded the Throne as 
 worthy of the very highest respec t; the Aristocracy as worthy of a degree of respect 
 only something below that accorded to the Crown ; the country population, as wor- 
 thy of no respect at all. Was it at a time when public trusts were property ; when 
 the masses were only not slaves ; when we must suppose that the French King, 
 about to settle a new and great country, would, naturally seek to introduce there 
 something like the state of things which prevailed in the old country ; was it, too, 
 when the King was here creating Seigniors, with the prerogatives of Hants Justi- 
 cierSj and raising some of them to high rank in the peerage ; that he gave to these 
 hig grantees, what only purported to be property but was really a public trust, and 
 this trust to be executed in behalf of a class lor whose welfare he cared next to 
 nothing ? The idea is natural to us ; because we associate the power of the Crown 
 with the happiness and welfare of the people governed. We are so sensitive, that 
 we shrink, when speaking of the classes of old called the lower orders, from 
 calling them by that name ; but this was not so then. Then the masses were 
 emphatically the lower orders ; or rather they were hardly an " order " at all. 
 This was the state of things here, at the time of the making of these grants. 
 
 Now, under the French system, there were then four principal modes of 
 holding real estate. It was often held under certain limitations. All who did not 
 hold by the noblest and freest tenure, may be said (if one must use a modern term) 
 to have held in trust ; not, however, in tmst for the behoof of those below, but for 
 that of those above them. Certain property, in France and in Lower Canada, was 
 held in franc aleu noble — free land held by a noble man — held by a noble tenure, of 
 no one, and owing no faith nor feudal subjection to any superior. There was again 
 another kind of property, held in franc aleu roturier — a property incapable of the 
 attributes of nobility, but in other respects free. A third description was that held 
 in fief or seigneurie ; and lastly there were lands held en roture or en censive. But 
 all these kinds of property were alike real estate, held by proprietors. The holder 
 
m franc aim noble held by the most independent tenure possible, a tenure which 
 admitted of his disposing of his land in whatever way he pleased. The holder in 
 franc aleu roturier held as freely; with this reservation only, that he could not 
 grant to inferiors, retaining to himself feudal superiority. The holder en fief was 
 bound to his superior, and couid grant, (either en fief or en roture,) if he pleased, 
 to inferiors under him ; and the holder en roture or censive was bound to his supe- 
 rior, but could have no inferior below him. 
 
 As to the essential character of the contract involved in the granting of land 
 en fief, 1 refer here to one authority only, that of Herve, the latest and perhaps 
 most satisfactory writer on the whole subject of the Seigniorial Tenure. In his First 
 Volume, on page 372, he says, speaking of this contract: '* ildoit etre d^fini une 
 ** concession faite d la charge d/une reconnaissance loujours subsistante, qui doit 
 *^ se manif ester de la maniefe convenue'^ ; *Mt must be defined to be a concession 
 *' made subject to the charge of an always subsisting acknowledgment, which must 
 *' be manifested in the manner agreed upon." This, then, is the essential of the 
 contract ; a superior, holding nobly, grants to an inferior, who admits his inferiority 
 and acknowledges it — how ? In the manner agreed upon. The style of acknow- 
 ledgment is the creature of the agreement between the parties. Here, again, is the 
 definition of the holding d titre de cens, taken from the same author, Volume 5, 
 page 152. *' C'est le bail d'une portion de fief ou d'aleu, d la charge par lepreneur 
 " de conserver et de reccnnaitrc, de la maniere convenue, un rapport de sujetion tou~ 
 *' jours subsistant entre la portion concedee et celle qui ne t'est pas, et de jouir 
 *' roturier ement ; " it is the grant of a portion of a fief or aleu, subject to the charge 
 *' upon the taker, of maintaining and recognising, in the manner agreed upon, a 
 '^ relation of subjection ever subsisting between the part conceded and that not 
 '* conceded, and of holding as a roturier.'^ The holder en roture was a proprietor, 
 but he must always recognize his chief — and this, as a roturier or commoner ; 
 while the holder en ^^/ held as a noble. Both tenures were creatures of contract. 
 In some parts of France one Custom, in others another, prevailed ; and in the 
 silence of contracts the Customs governed the relations between the parties. The 
 Custom which prevailed throughout Lower Canada, is well known to have been 
 the Custom of Paris; and under it, as indeed under most Customs, the grantor of 
 land was at liberty to grant on all kinds or conditions, and the appeal was only 
 made to the regulations of the Custom in the silence of the contract. Particular 
 Customs prohibited certain conventions ; but in general men granted, whether en 
 fief or en censive, as they pleased, only observing not to transcend whatever might 
 be the conditions of the Custom under which they contracted. 
 
 1 admit, of course, that during a long period of dim antiquity, neither land held 
 en fief nor land held e7i censive was really and truly property. In those days, such 
 grant of land was merely the grant of its use ; and the holder could not leave it to 
 his children, or in any other way dispose of it. But in process of time it became 
 the rule, that holders of land en fief could part with it by will, or by any contract 
 known to the law, — by sale, lease, grant d cens or d rente, or in any other way. If 
 the holder did thus part with his land, the Lord of the land might claim his certain 
 amount of dues ; if it was a fief or part of a fief that was sold, the buyer had to 
 pay a quint. But I repeat, subject to these payments, the holder could sell his fief 
 or any part of it ; only in the latter case, he could not make such part a new fief. 
 The purchaser would merely become a co-proprietor with himself. 
 
 Indeed, subsequently, still further relaxation came to be allowed. Within 
 varying limits the holder en fief became entitled to alienate, without dues accruing 
 to the Lord. According to the Custom of Paris, this point was regulated in a very 
 precise manner ; the holder of a fief being at liberty to sell, grant or otherwise 
 alienate, two thirds of his fief, if he only reserved the foi to himself—that is to say, 
 if he held himself still as the feudal tenant or Seignior of the whole, and retained 
 some real right, large or small, over the land alienated. He might take the value 
 in any way he pleased, provided he only retained something payable annually as a 
 token of his feudal superiority, and provided also he did not dispose of more than 
 two thirds of his holding. In Brittany and elsewhere, the whole of this system of 
 disposing of ^e/s was unknown. There, the Seignior could not sell part of his fief. 
 He could either grant it nobly or en roture; but could take only a small cash 
 payment ; and, supposing he had ever granted land at a particular amount of rent, 
 
he could never afterwards grant it at a less rent, and this for the reason that th« 
 interest of his Superior Lord in the land would be affected by any reduction of the 
 amount of its permanent rent. That Superior Lord, therefore, had the right to 
 demand that the Seignior holding of him should not make away lightly with his 
 property — that its value should be kept up. 
 
 No lawyer will deny, however, I believe, that by the law of France the 
 obligations on holders of land granted en fief were in the interest of the lord and not 
 in that of the inferior. It was not then the fashion to think of the inferior at all ; but 
 only to take care that the Seignior was neither cheated by his feudal Vassal, nor by 
 his Censitaire. The same principle thus held in France, was equally recognized in 
 England by Magna Charta ; which was to a great extent identical with the Custom 
 of Normandy. One of its articles provided, that no free man should grant away so 
 much of his land, as that enough should not be left to enable him to fulfil all his 
 duties to his lord. It was the lord who made this condition ; who claimed fiom his 
 vassal the letention ot'so much land as was necessary for the service of the lord. 
 In those days there were no objections made to wide spread properties in the hands 
 of individuals. Individuals held most extensiva possessions ; and cultivated them 
 by dependants of all grades, for their own benefit ; not at all for that of their 
 subordinates. The higher classes were regarded, to the all but utter exclusion of 
 the lower. I repeat ; it would have been strange, indeed, if the Crown had created 
 here a class of nobility, and granted them large tracts of land to be held by a noble 
 tenure, intending all the time that they should be mere agents for a class below 
 them, — a class in those days hardly in the least cared for. 
 
 I pass to the consideration of the terms of the grants made in Canada, and of 
 the law and jurisprudence of the country, from its settlement to the cession in 1760. 
 The period being a long one, 1 divide it into three parts ; the first ending with 1663, 
 when the Company of 'New France, or of the hundred Associates, was dissolved ; 
 the second, from that period to the passing of the Arrets of Marly, registered in 
 1712 ; and the third, from 1712 to the cession of the country to the Crown of Great 
 Britain. If throughout these periods there can be found any thing adverse to these 
 antecedent dispositions of the French law, as to this matter, I am greatly mistaken. 
 
 In 1627, the French Crown, after several previous attempts, resulting in 
 nothing, to settle Canada, created the Company of New France with extraordinary 
 prerogatives. The terms of the Boyal Edict creating this Company, are to be found 
 in the Second of the Volumes lately laid before Parliament, on the 3rd and follow- 
 ing pages. By it the King granted in full property all the country of New France 
 or Canada. The document sets forth : — 
 
 " IV. And for the purpose of repaying to the said Company the heavy 
 " expenses and advances necessary to be made by the said Company, for the 
 " purposes of the settlement of the said colony and the support and preservation of 
 *• the same. His Majesty will grant to the said hundred associates, their heirs and 
 ** assigns forever, in full property, justice and seigniory, (en toute propn'ete, justice 
 " et seigneun'e,) the fort and settlement of Quebec, with all the country of New 
 ** France called Canada, * * * together with the lands within, and along the 
 ** rivers which pass therein and discharge themselves into the river called Saint 
 '* Lawrence, otherwise the Great River of Canada, and within all the other 
 " rivers which flow therein towards the sea, together also with the lands, mines 
 " and minerals, the said mines to be held always in compliance with the terms of 
 *' the ordinance, ports and harbors, rivers, streams, ponds, islands and islets, and 
 ** generally all the extent of the said country, in length and in breadth, and beyond 
 '* as far as it shall be possible to extend and to make known the name of His 
 " Majesty, — His Majesty merely reserving the right of Fealty and Homage, 
 " which shall be rendered to him and to his royal successors," &c. 
 
 " V. It shall be lawful for the said associates to improve and deal with the said 
 " lands as they may see meet, and to distribute the same to those who shall inhabit 
 ** the said country, and to others, in such quantities and as they may think proper; 
 " to give and grant to them such titles and honors, rights, powers and faculties, as 
 " they may deem proper, essential and necessary, according to the quality, condition 
 ** and merits of the individuals, and generally under such charges, reserves and con* 
 
8 
 
 " ditions as they may think proper. But nevertheless, in case of the erection of any 
 *' duchy, marquisate, county or barony, His Majesty's letters of confirmation shall 
 " be obtained, upon application of his said Eminence the grand-master, chief and 
 ** general superintendent of the trade and navigation of France." 
 
 Such, then, were the terms of the grant of the whole country, made in 1627, to 
 a commercial Company ; a Company created with most extraordinary privileges ; 
 empowered to make war or peace ; to have fortresses j in fact clothed with all the 
 attributes of sovereignty. All limitations upon their power of alienation, which 
 might appear to be made by the Custom of Paris, or otherwise, were dispensed 
 with. They were to grant to anybody and everybody, on just such terms 
 as they pleased. 
 
 There had been some grants of land in Canada, made before this period ; but 
 none of them seem to be in force ; so that I begin with this grant to the Company 
 as affording the key idea, which interprets and governs all that follow. The Com- 
 pany granted, under this ample charter, a considerable number of Seigniories 
 between the years 1628 and 1663. By examining the printed titles, and adding 
 several others, the existence of which I have ascertained elsewhere, I find in all 
 sixty-one grants en fief oi ihis period, of which sixteen are either duplicates or have 
 never been taken possession of, or have been forfeited. Forty-five are thus still in 
 force, and of these thirty-five are to be found in the Volumes lately laid before this 
 Honorable House. The total grants en fief in Lower Canada, are about two hundred 
 and eighty. The Company's grants, therefore, form about one sixth of the whole of 
 those now existing. These grants cover an extent of nearly three millions of 
 arpents, according to the estimate of a gentleman of great accuracy in these matters ; 
 and as all the lands held in Seigniory amount to some ten millions of arpents, the 
 quantity now held under grants by the Company is not far from one third of the 
 whole. 
 
 Of these grants, three contain also grants d titre de cens; and one of these is 
 the grant to Robert Giftard, of the Seigniory of Beauport, dated the 15th of January 
 1634, and to be found on page 386 of the First of the Volumes laid before this 
 House. It sets forth that the Company "being desirous to distribute the lands" of 
 Canada, ^^ give and grant by these presents the extent and appurtenances of the 
 '' following lands, to wit : one league of land along the bank of the River St. Law- 
 '* rence, by one league and a half of depth on the lands situated at the place where 
 ** the River Notre Dame de Beauport falls into the aforesaid river, including the 
 ** river (Notre Dame); to enjoy the said lands, the said Sieur Giffard, his succes- 
 '' sors or ayans cause, in all justice, property and seigniory forever, with precisely 
 '* the same rights as those under which it has pleased His Majesty to grant the 
 " country of New France to the said Company, (m toutte justice, propriele et 
 *' seigneurie, d ])erpetuite, tout ainsy et a pareils droits quHl a plu d Sa Majeste 
 ^' donner le pays de la Nouvelle France d la elite Compagnie.'^) Is not this an irre- 
 vocable and absolute grant of property ? I think, if there are words which can 
 convey such a grant, I have just read them. But the grant conveyed other pro- 
 perty ; it gave another piece of land d titre de cens, in the following terms. " Besides 
 " which things the Company has also accorded to the said Sieur Giffard, his succes- 
 " sors or ayans cause, a place near the fort of Quebec, containing two arpents, for 
 " him there to construct a house with the conveniences of a court yard and garden, 
 •* which places he shall hold d cens of the said place of Quebec." The strong ex- 
 pressions contained in the other grant, are not in this. I, of course, do not mean to 
 say that this was not a grant of property : but when I have the much larger and 
 more emphatic expressions of the other portion of the grant, I cannot believe that 
 they were not meant to give the most absolute property. If one was a grant of 
 property, which cannot be denied, the other was such a grant ten times over. The 
 one was a grant, made as to a commoner ; the other was a grant of all kind of 
 property, with right of justice and lordship over the tract of country comprised 
 within it. 
 
 The following, again, is the wording of the grant of Deschambault ; another 
 of these grants, comprising as well land en roture as land en fief. I cite from page 
 375 of the same First Volume, — the French version : — 
 
9 
 
 " We have, to the said Sieur de Chavigny, given, granted and conceeded, and 
 '^ in virtue of the power conferred on us by His Majesty's Edict for the establishh 
 '* ment of our Company, do by these presents give, grant and concede the lands 
 *< and places hereinafter described, that is to say : two arpents of land to be taken 
 " in the place designated for the city and 6aniieue of Quebec, if there remain still any 
 ** unconceded lands therein or adjoining the same, to build thereon a dwelling with 
 ** a garden where he may reside with his family ; moreover, thirty arpents of land 
 *' to be taken outside the said banlieue of the said city of Quebec and close to the 
 " same, in the lands not yet conceded ; — 
 
 " And we have moreover to the said Sieur de Chavigny given, granted and 
 ** conceded, and by these presents do give, grant and concede, in virtue of the 
 ** power conferred on our said Company, halt a league of land in width, to be taken 
 ** along the said River St. Lawrence above or below Quebec, at any place from 
 " Three Rivers down to the mouth of the said River, by three leagues in depth in- 
 *< land, either on the side where Quebec is, or on the other shore of the said River, 
 '* as the said Sieur de Chavigny may desire ; to have and to hold, unto him, his 
 *•' successors and assigns, the above conceded lands, in full property, and to possess 
 ** the same, to wit: (en pleine propriete, et les possederj sgavoir:) the said two ar- 
 '' pents of land in the city and banlieue of €luebec, and the said thirty arpenta near 
 <* and outside the said ftaw^iewe, inroturey subject to the payment of one t/cjiier of 
 •* cenSy payable at the Fort of Quebec, every year, on the day which shall hereafter 
 '* be appointed, the said cens bearing lods et ventesy saisine et amendes ; and the said 
 *' half league on the River St. Lawrence by three leagues in depth inland in all 
 *' property, justice and seigniory also for ever, unto him, his heirs and assigns {en 
 " toutte proprietey justice et seigneurie aussi d toujours, pour luy, ses hoirs et ayans 
 *' cause. '^) 
 
 Here, again, one property was granted en fief, and another en roturti — both as 
 real property ; only, one as a much higher kind of property than the other. 
 
 Again , on page 351 of the same Volume — I of course continue to cite the FreHch 
 version, as being the original — will be found a grant wholly en roture, to one Jean 
 Bourdon. After reciting a setting apart by the resident Governor, in favor of the 
 grantee, of " an extent of about fifty arpents, of land covered with growing wood, 
 *' situate in the banlieue of Quebec, to have and to hold the same unto him, his heirs 
 *' and assigns, fully and peaceably, in simple roture, under the charges and censives 
 " which Messieurs of the Company of New France shall order, on condition that 
 '* the said Sieur Jean Bourdon shall cause the said lands to be cleared, and shall 
 *' allow the roads which the officers of Messieurs of the said Company may establish, 
 <* to pass through his lands, if the said officers judge it expedient, and that he shall 
 " take a title of concession from Messieurs of the said Company of the said lands," — 
 this grant thus proceeds : — ** The Company has confirmed and hereby confirms 
 ** the said distribution uf land, and as far as may be necessary, has granted and.con- 
 ** ceded it anew to the said Jean Bourdon, to have and to hold the same unto him, 
 ** his successors or assigns, (pour en jouir par luy, ses successeurs ou ay ant cause,) 
 *' under the said charges and conditions above mentioned, and moreover subject to 
 •' the payment of one denier of cms for each arpent every year to be computed from 
 <* the date of the said grant." 
 
 The same omission of all strong forms of expression as to grant of full property, 
 characterizes all these roture grants. Yet they were grants of property. Were 
 the grants en fief, where so much more was said, really meant for lees ? 
 
 No less than twelve of these grants by the Company of New France contain 
 expressions equivalent to that which I have read from the grant of Beauport ; con- 
 ferring the same rights as the Company had from the King. The seigniories thus 
 granted are the following, viz : In 1634, Beauport and a fiefaX Three Rivers to the 
 Jesuits ; in 1630, Lauzon, Beaupre, and the Isle d'Orleans ; in 1640, part of Mont- 
 real and St. Sulpice ; in 1652, Gaudarville ; in 1653, an Augmentation of Beauport, 
 Mille Vaches, the Augmentation of Gaudarville, and Neuville or Pointe aux Trem- 
 bles ; and in 165S, the remainder of Montreal. Of these, Gaudarville was granted 
 for the purpose of inducing the grantee to defend a dangerous post. There are 
 three other grants in franc aleu ; words which absolutely relieved the holder from 
 
10 
 
 any obligation, except those to which he was liable as a subject ot the French 
 Crown ; feudal superior he had none. Several other grants were made in franc 
 almoigne to religious bodies, on condition of their giving an honorable place to 
 members of the Company at the performance of mass on certain days of ceremony, 
 of their taking care of the sick, &c. Many grants were so worded as to exempt 
 the owner from the duty of paying a quint on mutations by sale, and thus gave him 
 the power to part with the property exactly as he pleased. A large proportion of 
 the grants contain the words en pleine propriete ; and not one excludes the notion 
 implied in those words. Several expressly grant some river or rivers ; many grant 
 ** all the rivers ;" and of course whenever the Company granted with the same 
 rights as they held themselves from the Crown, tliey gave the rivers, mines, minerals 
 and everything else. So far indeed, did these giants go, that in some cases it was 
 even thought necessary to make a reserve of this kind — <*'The Company does not 
 <* intend that the present concession should prejudice the liberty o^ navigation 
 " which shall be common to all the inhabitants of New France." This clause is to 
 be found in the grant of Montreal, in 1640 (see page 365 of the same Volume) ; 
 and similar provisions are to be found in some eight other grants ; shewing clearly 
 how perfect was the property intended to be given, when it was thought necessary 
 to reserve such rights as these. In some of these grants this clause is so worded 
 as to stipulate in terms, that the grantees shall charge no duty on ships passing 
 their lands on the St. Lawrence. Were not men, in whose grants it was thought 
 requisite in express words to reserve even this right of sovereignty over the great 
 river of the country, intended to be proprietors of something ? The grants 1 speak 
 of, are of dates ranging from 1640 to 1659, and are in all no less than nine. They 
 are the grants of Deschambault ; part of Montreal and St. Sulpice ; Riviere du Sud ; 
 an Augmentation of D' Autre ; Portneuf ; Repentigny, Lachenaie and L'Assomption ; 
 Becancour ; an Augmentation of Deschambault ; and the remainder of Mont- 
 real. Other clauses equally indicative of meaning, are to be found in a number of 
 the grants. Several, for instance, expressly prohibit the erection of forts, and a 
 considerable proportion imply the understanding of the parties, that the grantee 
 would probably make application to the Crown for a title of honor ; the Company, 
 as it will be remembered, not having power to grant such title. Was it meant that 
 men, receiving such grants, were to be something short of proprietors ? 
 
 There is of course no question, but all these grants implied the duty of settle- 
 ment and clearing of the land ; that when the Crown granted land, the giantee was - 
 to take possession and make use of it. If not, the contract was not fulfilled; and 
 either the Crown, or the Company — in case the Company were the grantor— might 
 take it back, as if it had never been given. This 1 admit. All I contend for is, 
 that the grantees were not bound to settle the land in any particular manner ; that 
 they were lords and masters ; not obliged to concede or part with theii land in any 
 particular way ; whether en arricrejiej) or d cens^ or otherwise. There were diffi- 
 culties arising out the state of the new country, which rendered it impossible to 
 carry out in it the manners of the old ; but these were circumstances of geographical 
 position, not restrictions of law. The law imposed no restraint whatever ; and as 
 to the grants, very few indeed made any mention of the amount or kind of settle- 
 ment to be effected by the grantees. In the grant of Deschambault, (from which I 
 have already quoted,) it is provided that the grantee " shall send at least four 
 ** working men to commence the clearing, besides his wife and servant-maid, 
 ** and this by the first ships that shall sail from Dieppe or La-Rochelle, together 
 '* with goods and provisions for their support during three years, which shall be gra- 
 " tuitously brought and carried for him to Quebec in New France, on condhion 
 '•' that he send the whole on board of the ships of the C^ompany at Dieppe or La- 
 " Rochelle." There was thus a stated consideration for this grant ; not, however, 
 an obligation to take out emigrants by the hundred ; nor yet to concede to all and 
 sundry who might come and demand the land. You could not in those days have 
 induced a man of substance to go out and settle, without giving him a large quan- 
 tity of land ; and no man would have thanked you for such a grant, unless he were 
 to be the master of it. The grant of Montreal, (also already quoted) is another of the 
 two or three that imply an obligation on the part of the grantee to bring out settlers. 
 But there is not one that imports obligation as to the terms on which land should be 
 given to such settlers. Some on the contrary, even limit the power of granting 
 land in a whimsical manner. Thus in the grant of Beauport in 1634, the land is 
 given '^ without the said Sieur Giifard, his successors or assigns, having the right 
 
11 
 
 " to dispose of the whole or part of the lands hereinabove granted to him without 
 <Mhe will and consent of the said Company, during the term and space of ten 
 years." So far, then, from its having been his duty to concede, his grant re- 
 strained his power to concede. The grant of D'Autre provides that concessions be 
 made only to persons residing in New France, or who shall go out there. That 
 of Montreal and St. Sulpice, on the contrary, limits them to persons not inhabitants 
 of New France, but who shall bind themselves to emigrate there. So various were 
 uU these grants; so adverse to the ideas that then prevailed, the notion, that the 
 grantees were bound to sub-grant their lands, — by any uniform rule, a cens, or 
 otherwise, — or indeed to part with them at all. 
 
 Besides, a number of these grants en fief were grants of tracts of land, too small 
 for sub-granting to have been possibly thought of. Isle des Ruaux was a small 
 island granted for purposes of pasturage to the Jesuit B'athers. Another grant was 
 made to one Boucher, of two hundred arpente, en fief; and another on the Cap 
 Rouge Koad, called Becancour, was but ten arpents by one. Another of them, was 
 a mere erection of a house called St. Jean, at Quebec, with sixty arpents of land 
 adjoining, into a fief The owner Bourdon by name, held it en roture ; and the 
 Company converted it into a fief — expressly to gratify him, by making his tenure 
 that of a man of rank. 
 
 Under all these circumstances, can it for an instant be imagined that the grantee 
 of land en fief -was at all bound to sub-grant? He was to all intents a proprietor ; 
 only with a higher social rank, a right of property more admitted, than were pos- 
 sessed by the holder en roture. it was impossible that such a condition should 
 have been thought of. The grantees must sometimes bring people out from France ; 
 the Company could not require them, after they had done so, to make any other 
 bargain tJhan they and their emigrants might think fit to make. The Seignior could 
 grant his land or not, as he thought proper. The beginning, middle and end of 
 his obligation was, to take possession of it and settle on it ; when he had done this, 
 he might do whatever else he pleased. Generally speaking, the grants were made 
 for the avowed purpose of enriching the grantee. Several, indeed, were to reli- 
 gious bodies, and set forth the intenlion of securing them ample revenues; a notion 
 obviously irreconcileable with the idea of their being bound, as a sort of Govern- 
 ment Agents, to concede their lands at low rates. 
 
 So much for the tenor of the grants of nearly three tenths, in extent, of all the 
 land at present held en fief in Lower Canada. 
 
 I pass to my next period ; that between 1663, the date of the dissolution of the 
 Company of New France, and 1712, when the Arrets of Marly were promulgated 
 in Canada. The Company was dissolved, because it did little for the settlement of the 
 country; the majority of the Seigniories were not settled; and the French King 
 revoked his grant of 1627, and took the Colony again into his own hands. Not 
 Jong after several Royal Arrets were issued ; which have sometimes been cited, 
 as though they imported the revocation, more or less absolute, of all the antecedent 
 grants made by the Company. It has been taken for granted by those who have 
 so cited these Arrets, that because the King said by them, that these grants were 
 to be revoked, in whole or part, they were so. But the fact was not so. I 
 admit, of course, that some of the grants made by the Company were taken back 
 again. A number were, no doubt, so dealt with. But it was not under these 
 Arrets , or any of them, as I will presently show, that this was done. 
 
 The first of these Arrets is that of the 21st of March, 1663, printed on page 
 135 of the Third of the Volumes laid before Parliament. In it the King complams 
 of the failure to settle the country, and alleges : *« that one of the chief causes for 
 *' the said country not becoming so populous as he desired, and even that several 
 ** settlements had been destroyed by the Iroquois, is to be found in the grants of 
 " large quantities of land which have been accorded to certain inhabitants of the 
 ** said country, who never being able to clear their lands, and having established their 
 " residences in the middle of the said lands, have by this means found themselves 
 ** placed at a great distance from each other, and, therefore, unable to succour or 
 " aid each other." And the Arret goes on to say, that, to prevent this evil, the 
 King ordains, that " within six months of thd publication of the present Arret in 
 
12 
 
 ** the said country, all the inhabitants thereof shall cause to be cleared the lands 
 *' contained in their concessions ; or otherwise, in default of their so doing within 
 *' the time mentioned, His Majesty ordains that all the lands not cleared shall be 
 " distributed by new concessions in the name of His Majesty ; His Majesty re- 
 " yoking and annulling all concessions of land by the said Company still remaining 
 ** uncleared." It might naturally be supposed that this meant something ; but, 
 under date of almost the same day, there will be found in the Edits et Ordonnances^ 
 printed in 1803 and 1806, (on page 26 of the Second Volume,) a document ad- 
 dressed-by the King to a M. Gaudais, a Commissioner of Inquiry, whom he seems 
 to have been sending out to Canada. This is dated the 6th of May, 1663 ; and in it 
 the King treats the injunction just mentioned as comminatory, and never intended 
 to be carried out to the letter. *^ In case any of those," says the King by this instru- 
 ment," to whom concessions have been made, set to work at once to clear them 
 " entirely, and before the expiration of six months as mentioned in the Arret ^ shall 
 ** have commenced to clear a good part, it is the intention of His Majesty, that on 
 " their petition, the Sovereign Council may grant a new term of six months only, 
 " which being ended He desires that all the above mentioned concessions shall be 
 ** declared null." When the Arret came to Canada, however, we find that nothing 
 was done upon it ; the Sovereign Council contented itself with merely having it 
 communicated to the Syndic of the Habitans, before proceeding further, ** avant 
 /aire droit.'' This done, no one appears to have thought any more about it. Cer- 
 tainly, the uncleared grants were not all resumed under it ; nor indeed, so far as 
 one can see, were any. 
 
 In May 1664, the King created a new Company, the Company of the West 
 Indies, with powers and privileges as regarded all the American possessions of the 
 French Crown, nearly answering to those which the Company of New France, 
 had enjoyed in respect of Canada. 
 
 Nearly three years later, we arrive at the date of the earliest in order of time, 
 of the documents forming the first part of the Fourth Volume lately laid before this 
 Honorable House. As those documents (the documents obtained within the last 
 year from Paris) have been said to furnish strong evidence against my clients, I 
 shall feel it necessary to advert to all of them ; and I begin with this. It purports 
 to be an extract from a draft of a regulation {jprojet de rcglemeni) prepared by 
 Messrs. De Tracy and Talon, then respectively Governor and Intend ant of New 
 France, under date of the 24th of January, 1667, relative to the granting of land ; 
 and is to be found on page 5 of the Volume in question. It is thereby suggested : — 
 
 ** That an Ordinance be made, enjoining all inhabitants of the country, and all 
 *^ non-residents (etrangers) possessing lands therein, to declare what they possess, 
 " whether in fief oi liege homage or of simple homage, in arriere-Jief or in roture, 
 ** by a statement and acknowledgment (denomhrement et aveu) in favor of the 
 " Company of the West Indies, giving the conditions and clauses contained in their 
 *' titles; so that it may be ascertained whether the Seigniors (Seigneurs Dominants) 
 *' may not have had anything inserted in the deeds given to them by their Su- 
 " perior Lords (^Seigneurs Suzerains ou Dominaniissimes) to the prejudice of the 
 " rights of sovereignty (^droits de souverainete) ; and whether they themselves, in 
 *' distributing the lands of their fief dominant to their vassals, may not have ex- 
 " acted anything that may infringe on the rights of the Crown and the subjection 
 *^ due only to the King : * * * and to avoid all confusion and give the King a 
 " perfect knowledge of the changes which shall be effected each year in Canada, 
 " that it be ordered that in future no grant, whether special or general, shall be 
 " made in the name of the Company of the West Indies, or on the part of the 
 " Seigniors of fiefs who shall be distributing their dx)maine utile to Habitans, unless 
 *' (and this as a condition of their validity) the same be verified and ratified by the 
 " official having power from His Majesty, and be registered in the office of the 
 *' domain of the said Company ; for whose benefit a land-roll (terrier) shall be com- 
 ** menced forthwith." 
 
 The Governor and Intendant, then, at this time were evidently under the im- 
 pression, that grants of land had been made under the regime of the Company of 
 New France, giving too extensive rights to the grantees ; rights in fact, of a nature 
 to trench on those of the Crown. Their purpose was, to enquire as to that matter. 
 
13 
 
 They clearly never thought of any of these grantees, as being something less than 
 owners of real estate. And, as clearly, they entertained no thought of making them 
 so. The notion of an obligation on a Seignior's part to sub-grant his land, was not 
 their notion. They neither hint at the existence of such an obligation, nor propose 
 to create it. On the contrary, their proposal (a proposal never acted on) is, to throw 
 a certain measure of obstruction into the way of their so doing. Aside from these 
 inferences, this document proves nothing. It purports to be a mere project ; and 
 was never acted on. 
 
 The second in order of date, of the Arrets of the French King to which I just 
 now alluded, is an Arret of the year 1672 ; registered in Canada on the 18th of 
 September of that year. It is not printed in the Volumes lately laid before Par- 
 liament ; but is to be found on page 60 of the First Volume of the Edits et 
 Ordonnances. It was issued immediately after the appointment of a new Gover- 
 nor, the Comte de Frontenac ; and is really little more than an order to M. Talon, 
 the Intendant, to make out a land roll, or terrier of the country— a duty, it thus 
 seems, which still remained to be performed, notwithstanding the intention five 
 years before expressed by him on that head, in the extract last read. The King 
 complains, that his subjects in New France have obtained too extensive grants of 
 land, great part of which remains uncleared, " by reason of the excessive size of 
 " the grants, and the want of means of the proprietors thereof — (a cause de la trop 
 " grande etendue des dites concessions ^ et de lafoiblesse des proprietaires dHceltesy^ ; 
 and he thereupon orders M. Talon to make out an exact return of the grants made, 
 and of . their state as to number of persons, cattle, &c. on each, — after which, he is 
 to resume the one half of the extent of the grants made previous to the last ten 
 years, and to re-grant them to new applicants, on condition always of their clearing 
 them entirely in the course of the four years immediately following. Again, no 
 trace of the notion of any of these grantees not being owners of their grants. On the 
 contrary, they are expressly so called. Nor yet, of their being under obligation to 
 .sub-grant. The whole intent of the Arret, is to say to these grantees, as proprietors 
 of land given them for settlement ; you have had too much given you ; you cannot 
 clear your land, for want of means ; I intend to take back half, and give it to others 
 who shall. But the very fact of this Arret having been issued in 1672 shows con- 
 clusively, that the Arret of 1663, on which I remarked a few moments since, was 
 merely comminatory, and had not been acted on. If it had been acted on, there 
 would have been no grants in force of a date previous to the last ten years. Nor 
 was this of 1672, acted on a whit more. Talon drew up no such return as was ordered ; 
 and resumed no halves of grants. There is no trace of any half of a grant having 
 ever been resumed. Instead of acting on this Arret, in fact, M. Talon did some- 
 thing quite different ; for he immediately granted a great number of Seigniories, 
 A* ithout so much as putting into the grants the condition of clearance within four 
 years, as by this Arret he was pointedly enjoined to do. 
 
 A third Arret of the same class is to be found on page 136 of the Third of the 
 Volumes laid before Parliament. Its date is of 1675, and it was registered here on 
 the 21st of October of that year. It is a transcript, almost without change of a 
 word, from that of 1672 ; and' in fact, issued on the occasion of the appointment of 
 M. Duchesneau to succeed Talon, as Intendant of the country. Equally with its 
 predecessor, however, it failed (as regarded escheat of land) to be acted on. 
 
 In 1676, the King issued a Commission, (to be found on page 24 of the First 
 of the Volumes before Parliament) by which he vested the power of granting land in 
 New France, in the Governor and Intendant jointly ; that power, up to that time, 
 having been exercised sometimes by one, and sometimes by the other, of those 
 Officers. The grants were to be made subject to confirmation by the King within 
 the year, and on condition also of clearance and improvement of the land within 
 the six next following years ; and were to be made contiguous to one another and 
 to the grants already made and cleared — "de proche en proche et contigues aux 
 " concessions qui ont ete faites ci-devant, et qui sont defrichees.^^ No other conditions 
 were enjoined. And in fact, in the grants as made, these injunctions were not obeyed; 
 The six years' clearance clause was never inserted ; any more than the four years' 
 clearance clause previously enjoined had been. 
 
14 
 
 The fourth and last Arrit of which I have to speak in this connexion, bears 
 dafe three years later, in 1679; and ie only to be found on page 247 of the first 
 volume of the Edits et Ordonnances. It recites that, at last, the return or land-roll, 
 ordered in 1672 and 1675, had really been made, and that it showed the greater 
 part of the granted lands to be still unimproved and <* useless to its owners (inutile 
 aux proprietaires) ;" and thereupon, it first ordered the execution of the Arret of 
 1675, — admitted, therefore, till that time to have remained unacted on, — and then 
 enjoined a course quite other than the course indicated by thai Arrets — that is to say, 
 ordered that one fourth o( all the lands granted before 1665, and not presently 
 cleared and cultivated should be " taken I'rom the proprietors and possessors thereof, 
 *< (retranche aitx proprietaires et possesseurs d'iceUes,y^ and one twentieth part of 
 whatever should be the uncleared remainderof each grant, yearly thereafter. There 
 is not however, the least trace of this Arret any more than its predecessors, having 
 ever been put in force. It was merely comrainatory. Neither one half, nor on« 
 fourth, nor one twentieth of any Seigniory was ever escheated. All was a dead 
 letter — a threat never executed, perhaps never meant to be executed. 
 
 I pass to consider the grants made by the Company of the West Indies, or in 
 the King's name, from the date of the dissolution of the Company of New France 
 to the year 1712. These grants were very numerous — in all something less than 
 two hundred and sixty, of which some eighty-three are not in Canada or for other 
 reasons should be struck off. There remain a hundred and seventy-six ; of which 
 a hundred and sixty-four are printed in the Volumes before the House. Two of 
 those not so printed, I have obtained elsewhere. In all, ihey exceed four sevenths 
 of the grants now in force ; and they cover more than four millions of the ten mil- 
 lions of arpents held en fief in liower Canada. 
 
 A few of them, some six in number, were granted by the Company of the 
 West Indies ; all in the same terms. The grant of the Seigniory of Kiviere-du- 
 Loup en has, is one of these ; and is to be found on page 39 of the First of the 
 Volumes laid before Parliament. It grants, *' on the south side of the great River 
 '^ St. Lawrence, one league above and one league below the Riviere du Loup, by 
 " one league and a half in depth, and the ownership (jpropriete) of the said Riviere 
 '* du Loup, and of the mines and minerals, lakes and other rivers which may be 
 ** found within the said concession, and also the islands and beaches in the said 
 " River St. Lawrence, opposite the said concession, with the right of hunt'ng and 
 *' fishing throughout the whole of the said concession ; to have and to hold the 
 *' same unto the said Sieur de la Chesnaye, his heirs and assigns for ever, in full 
 " property and seigniory, (en toute propriefe et seigneurie^y subject only to the 
 rendering of 'foi et hommage, with payment of an ecu d^or on every chancre of pos- 
 sessor, and on condition of clearance being begun, a survey mads, and bounds 
 (homes) planted, within two years. The grants of Terrebonne and Petite Nation 
 (neither of them printed in the Volumes laid, before Parliament, but of which 1 
 have obtained copies) are in the same terms. 
 
 These grants by the Company were confirmed by the Royal Edict of 1674 (see 
 page 20 of the Second Volume laid before Parliament) revoking the Company's 
 Charter. " vVe declare valid, approve and confirm," says that Instrument (p. 23) " the 
 *' grants of land accorded by the Directors, their agents or attorneys, and the sales 
 ** (venies particulieres) which have been made of any habhations, stores, lands 
 *' and heritages, in the Countries by us conceded" heretofore to the Company. So 
 that there was evidently no more idea then, of questioning the right of the Com- 
 pany to sell, than there was of questioning their right to dispose of land in any 
 other way. 
 
 The remainder of the grants of this period were made in the King's name ; 
 first, a large number by Talon in 1672, — to Officers of the Carignan Regiment and 
 others; then several, by the Comte de Frontenac, the Governor; then, some by 
 Messrs. Frontenac and Duchesneau, under separate instruments executed bv each; 
 and afterwaids, the remainder, under instruments jointly executed by the Governor 
 and Intendant for the time being. 
 
 In the terms of these grants there is great variety. Some lefer back to grants 
 by the Company of New France, and augment them ; the new grants being quite 
 
15 
 
 as destitute of clauses of restriction on the grantee as the original gnrants. A great 
 number ep«cially grant particular rivers, or all the rivers within their limits, as the 
 case may be. Others set forth as the object of the grant, that it is to endow reli- 
 gious bodies, or to reward services to the state. Some carried with them rank in 
 the peerage. Others, again, were granted as an inducement to the establishment 
 of Fisheries. These, of course, granted the rivers ; and contained no expression 
 hinting at the idea of the land being sub-granted at ail. The thing intended was 
 the creation of fisheries, not of agricultural establishments. One grant was made 
 with a view merely to the establishment of a slate quarry, at Anse de V hi tang ; the 
 only condition being that the grantee was to give notice to the King, of the mines 
 and minerals, which he might find. 
 
 I might heap proof on proof of the absence of any intention to compel the grantee 
 to sub-grant. It is even certain that several grants, as large as Seigniories, were 
 made a titre de cens — that is to say without the faculty to regrant, because the 
 holder d titre de cens could have no censitaire under him. I repeat, during several 
 years grants were repeatedly made, of an extent of from two to four leagues, d titre 
 de cens, at the rate of six denier^ of cens ; which grants it was legally impossible 
 for the grantee to dispose of either cw fiefov d cens. Numbers of grants, in this way 
 or otherwise, are utterly inconsistent with the idea of an obligation to sub-grant. 
 One, indeed, that of Isle aux Coudres, to the Seminary of Quebec, (to be found on 
 page 322 of the First of the Volumes laid before Parliament, was made upon express 
 condition that the Seigniory granted should not be settled upon, except by persons 
 belonging to the Seminary. So far from obliging the grantees to sub-grant, with 
 a view to the settlement of the country, it actually prohibited them from so doing. 
 The ecclesiastics were to use their grant, lor the education and conversion of the 
 Indians ; and none but ecclesiastics were to live in their settlement there, lest the 
 work of education and conversion should be interfered with by lay irregularities of 
 any kind. 
 
 I have felt anxious to be able to support these statements, by a much fuller and 
 more precise detail of facts. Had time permitted, I would have drawn up and laid 
 before this Honorable House, a complete/aciwm, setting forth my clients' case ; in 
 which I would have set forth as succinctly and clearly as I could, the precise tenor 
 of all these varying forms of grant. This, however, I have been unable to do ; and 
 can only say tliat I purpose yet to do what I can towards supplying this omission, 
 by laying before the public in print, with as little delay as possible, such a state- 
 ment as to these grants. In the meantime, all I can do, is to state results in 
 general terms, and cite occasional instances, as I am now doing. 
 
 The only kind of reference in any of these grants, to their probable settlement by 
 tenants or sub-grantees of any kind, is to be found in certain clauses upon which I 
 proceed to remark ; and which clauses, as I have said, are by no means to be found 
 m all of them. 
 
 I cite them first, in their longest and most stringent form, — from the grant of Ste. 
 Anne de la Perade, by Talon, made in 1672, and to be found on pages 10 and 275 
 of the Frst Volume so often mentioned. They there read thus : 
 
 " On condition that they " the grantees ** shall continue to keep or cause to be 
 *' kept hearth and home (feu et lieu) on their said Seigniory ; and that they shall sti- 
 <* pulate in the contracts they may make with their tenants (^€na?iciers,)'that these 
 *' latter shall be held to reside within the year, and keep hearth and home on the 
 " concessions that maybe or may have been accorded to them, and that in default 
 " of this, they shall re-enter of full right {de plein droit} into possession of the said 
 *' lands; — that they shall preserve the oak trees, fit for ship-building, that may be 
 '• found on the land which shall be reserved for their principal manor house, and 
 " also that they shall reserve the said oaks in all the extent ot the particular conces- 
 '' sions made to their tenants, {tenanciers.) 
 
 It is evident, however, that these are not clauses to oblige the grantee to have 
 censitaire tenants. The very word ienancier is an ambiguous one : it may mean 
 censitairea, or it may mean something else ; it is applicable to censitaires, fermiers, 
 holders under 6ai7 d renfe—tenanls of any kind. But apart from this, I repeat that 
 
 I 
 
18 
 
 these clauses do not require the grantee to have tenants at all. They merely re- 
 quire him, if he have tenants, to make them live on their lands and preserve their 
 oak trees. He is not to part with his land or to create claims upon it, without 
 binding down the parties to these terms. 
 
 To show, beyond the possibility of question, that this and no more was the 
 meaning of these clauses, it is enough to turn to other titles of the same period. We 
 shall see that they soon got shortened ; and in fact, appear as early as the year 1676, 
 in a grant of part of Longueuil, (on page 101 of the same Volume) in the following 
 words : — " that he shall continue to keep and cause to be kept by his tenants (tenan- 
 ** ciers) hearth and home (feu et lieu) on the said seigniory ; that he shall preserve 
 " and cause to be preserved the oak timber fit for ship-building which may be found 
 *^ there," &c. In other grants of the same year, those of St. Maurice and Gentilly, 
 (on pa^es 155 and 13 of the same Volume,) the whole is cut down into a clause, in 
 which the very word tenancier does not appear. *< He shall continue to keep and 
 " cause to be kept hearth and home on the said seigniory ; and shall preserve and 
 " cause to be preserved the oak timber thereon fit," &c. The evidence goes even 
 further. For a number of grants are actually so worded, as in terms to show that 
 the having of sub-grantees was not a thing compulsory on the Seignior, but purely 
 facuhative. Thus in the grant of Ste. Anne des Monts (see page 329 of the same 
 Volume) under date of 1688, the expression used is, that the grantee shall 
 insert the requirements insisted on ** in the concessions which he will be at 
 '' liberty to make (quHl luy sera permis defaire) on the said land ;" and in a number 
 of other instances, the same or like words are used. 
 
 Nor were these varying forms of expression the result of mere unauthorized 
 caprice on the part of the Governor and Intendant. They were fully sanctioned by 
 the Crown. There are printed two Royal Arrets, (see pages 242 and 243 of the 
 Second of the Volumes laid before Parliament,) each confirming a number of grants ; 
 one dated in 1680, the other in 1684. By these the King declared that he confirmed 
 those grants precisely as they were made ; only adding a clause to require clear- 
 ance within six years. I have also obtained another, bearing date the same day 
 3.S the Arrets o{ Marly, the 6th of July 1711; which contains the ratification of 
 eleven grants, of various dates and granted under various conditions, but none of 
 them hinting at any obligation on the grantee to concede to Censitaires, or at all. 
 In this document which I have from a client, (and the terms of which correspond 
 almost word for word with those of every subsequent Brevet of Ratification that I 
 have been able to procure,) the King distinctly sets forth the Seignior's obligations 
 as the following, and no other : — " To render foy et hommage at the Castle of St. 
 ** Lewis at Gluebec, of which they shall hold under the ordinary dues ; to preserve 
 *' and cause to be preserved the oak trees proper for the construction of the King's 
 " ships ; to give notice to His Majesty, or to the Governors and Intendants of the 
 ** said country, of mines, ores and minerals, if any be found within the extent of 
 " the said concession ; to keep hearth and home thereon, and to make their tenants 
 " do the same, failing which the grants shall be reunited to the domain of His 
 ** Majesty; to clear and cause to be cleared the said lands forthwith; to 
 *' leave space for all roads necessary for the public good ; to leave the beaches 
 " free to all fishers, except such beaches as they may want for their own fisheries ; 
 *' and in case His Majesty shall need any part of such lands, for the construction 
 " thereon of any forts, batteries, places d'armes, magazines or other public works, 
 ** His Majesty shall be entitled to take the same, as also all trees that may be 
 ** necessary for such public works, without having to make any compensation 
 <* therefor." 
 
 In all this, most surely, — in all, I repeat, that is to be found in all the grants to 
 this date, — there is no word indicative of the imposition on the Seignior of any 
 obligation to sub-grant his lands on any particulai terms, or indeed to sub-grant 
 them at all. 
 
 We come, then, to the Arrets of Marly, of the 6th July, 1711 ; promulgated in 
 Canada in December, 1712. It need hardly be observed that there are two Arrets 
 of that date ; one aimed at the Seigniors ; the other at the Censitaires. Before 
 speaking, however, of the precise terms of these Arrets, I must remark on some 
 matters of fact only of late Drought to light, and which are established by the docu-' 
 
17 
 
 ments contained in the last of the four volumes laid before this Honorable House 
 From the second of these — it will be remembered that I have already commented, 
 upon the first — from the second of these, to be found on page 6 of that Volume, it 
 appears that in 1707, M. Raudot the elder, the then Intendant, wrote to the Minister 
 (Monseigneur de Poutchartrain, apparently) complaining of many abuses, as he 
 thought them, which prevailed in the country; and especially lamenting the 
 *^ esprit d'affaires^^ which, he says, was beginning to manifest itself, and to cause 
 or threaten a fearful number of law suits. According to his ideas, it was necessary, 
 in order to put a stop to all this litigation, to introduce an entirely new law, estab- 
 lishing an absolute Five years' Prescription, by which all sorts of people should 
 be prevented from bringing all sorts of suits ; for, said he, unless this universal 
 litigation is put an end to, the most dreadful results to the colony must follow. 
 After a good deal of writing upon this subject, he turns upon the Seigniors, and 
 says that many Habitans have settled on land on the bare word of their Seigniors, 
 without deeds setting forth any conditions, and that the consequence is that these 
 Habitans have often been subjected to rents and dues of a most onerous character ; 
 the Seigniors refusing to give deeds except at charges such as they ought not to 
 be compelled to pay. This, says he, has caused the dues to be different in almost 
 all the seigniories ; in some, one rule prevailing; in some, another. He further 
 complains that it has become usual for Seigniors to stipulate in their concession 
 deeds, the droit de retraity a right which he characterizes as inadmissible under the 
 Customs of Paris. On this last point, I should observe, that that Custom does 
 give the right of retrait as regards land held en Jief ; that is to say, whenever 
 such land may have been sold, the Superior Lord may by the Custom come in 
 and take it at the price paid, — as not being obliged to accept of any Vassal whom 
 he ma;y not like. The Custom does not accord him such right, as regards land 
 held of him en censive ; but it does not preclude his agreeing with his Cendtaire 
 for its exercise. Such agreements were always common ; and whenever made, 
 were valid. M. Raudot was merely wrong in his law, on a most obvious point, 
 when asserting the contrary. 
 
 He goes on to say : — 
 
 *' There are grants according to which the capons paid to the Seigniors are 
 " paid either in kind or in cash, at the choice of the Seignior. These capons are 
 " valued at thirty sols, and the capons are not worth more than ten sols. The Sei- 
 " gniors oblige the tenants to give them cash, which they find very inconvenient, as 
 ^* they frequently have none : for, although thirty sols appear but a trifle, it is a great 
 " deal in this country where money is very scarce ; and moreover it seems to me 
 " that as to all dues, when there is a choice, it is always in favor of the party owing, 
 " cash being a species of penalty against him when unable to pay in kind. 
 
 " Seigniors have also introduced into their grants the right of the banal oven 
 " (four banal) of which the Habitans can make no use, because of their habitations 
 " being at a great distances from the Seignior's house, where such oven must 
 *' be established." 
 
 Raudot, then, proposes that all these things should be changed, and a new order 
 of things established as to all sorts of matters. Some ot his proposals, — as for 
 instance, that for suppressing the four banal, or exclusive right of keeping an oven 
 in the Seigniory, were not unreasonable ; but others of them were absurd ; and one 
 in particular — for the reduction of all Seigniorial rents, past and to come, to one low 
 uniform rate, was (to say the least) a proposal to interfere with contracts and 
 established rights of property, in a manner utterly indefensible. 
 
 The next document in the same Volume (page 9) is a letter, or pait of a letter 
 from Monseigneur de Poutchartrain in answer to the preceding ; a diplomatic note, 
 intimating a civil disposition on the part of the Minister, to act on the recommenda- 
 tions given him ; but asking for more information. 
 
 Following this, in the same Volume, are two notes (see pages 10 and 11) from 
 Poutchartrain to Messrs. Deshaguais and D'Aguesseau — two lawyers, the latter 
 then Procureur General ; in which the Minister requests those two gentlemen to 
 draft an Edict on the subject. 
 
 I 
 
18 
 
 The importance of these two notes, however,, is not obvious ; although, no 
 doubt, the name of D'Aguesseau, afterwards Chancellor of France, is a great name. 
 There is nothing to show that any such Edict ever was drafted by him, or by any 
 one else ; and it is at least quite certain none was ever passed. 
 
 M. Raudot, in the meantime, in 1708, sent home another letter, (the next docu- 
 ment, commencing on page 11 of this same Volume,) accompanied by a memoir 
 showing the various rates, which prevailed in different seigniories. This memoir 
 has not%een printed, and seems not to have been found; but this much is clear, that 
 by it, in 1708, Raudot informed the King that the dues paid to the Seigniors were 
 most various, and many of them most onerous, considering that at the time there 
 was little or no money in the country.— that they were, in fact, so various and so 
 many, that he sent home this memoir with the recommendation to bring all to the 
 same level, and this by way of reduction, in order to go back to the early days, 
 " les iemps dHmiocence " as he called them, when all the rates were low. To these 
 two papers, we have no answer from the Minister. There is a short document, 
 dated in 1711, the next in the Volume, (see page 13,) but it has no reference at all 
 to the matter of Raudot's letter ; and after that we have nothing more in the Volume, 
 till we come to the year 1716. 
 
 Did I say, we have no answer ?— I am wrong. We have the King's own answer, 
 in these Arrets of Marly, of the year 1711 ; showing how extremely small a frac- 
 tion of all M. Raudot's sweeping recommendations. His Majesty saw fit to regard 
 with any sort of favor. The former of these Arrets of Marly, that which is directed 
 against the Seigniors, is to be found on page 245 of the Second of the Volumes before , 
 Parliament, and is in these words :— 
 
 " The King being informed that among the tracts of land which His Majesty 
 " has been pleased to grant and concede aiseigneurie to his subjects in New France, 
 " there are some which have not been entirely settled, and others on which there 
 *' are as yet no settlers to bring them into cultivation, and on which also those to 
 " whom they have been conceded en seigneurie, have not yet commenced to make 
 ** clearings for the purpose of establishing their domains thereon : — 
 
 '* His Majesty being also informed that there are some Seigniors who refuse, 
 *"' under various pretexts, to concede lands to Habitans who apply to them, with the 
 " view of being able to sell the same, imposing at the same time upon the pur- 
 ** chasers the same dues (droits de redevances) as are paid by the Hahitans already 
 *• settled ; which is entirely contrary to His Majesty's intentions, and to the clauses 
 *' of the deeds of concession, {aux clauses des litres des concessions,) by which they 
 *' are merely permitted to concede lands subject to dues (d litre de redevance) ; and 
 ** which also causes very considerable injury to the new settlers, who find less land 
 '* open to settlement in the places best adapted to commerce : — 
 
 ** For remedy hereof, His Majesty, being in His Council, has ordained and 
 *' ordains, that, within one year at the farthest from the day on which the present 
 " Arret shall be published, the inhabitants of New France to whom His Majesty 
 " has granted lands en seigneurie, who have no domain cleared and no settlers on 
 '* their grants, shall be held to bring them into cultivation and to place settlers 
 " thereon ; in default of which, at the^expiration of the said time, it is His Majesty's 
 " will that the said lands he reunited to his domain, at the suit of the Attorney 
 " (general of the Superior Council of Quebec, (Procureur General du Co7iseil Supe- 
 ** rieur de Qael}ec,) and on the Judgments [Ordonnances) to be rendered in that 
 "behalf by the Governor and Lieutenant General of His Majesty, and the 
 *' Intendant in the said country : — 
 
 "His Majesty ordains also, that all the Seigniors in the said country of New 
 " France do have to concede (ayent a conceder) to the Habitans the lots of land 
 " vrhich they may demand of them in their seigniories, subject to dues (d litre de 
 " redtvance) and without exacting from them any sum of money as a consideration 
 " for such concessions ; otherwise, and in default of their so doing. His Majesty 
 *| permits the said Habitans to demand the said lots of land from them by a formal 
 " summons, and in case of their refusal, to make application to the Governor and 
 " Lieutenant General and Intendant of the said country, whom His Majesty enjoins 
 
19 
 
 " to concede to the said HabiCans the lands demanded by them in the s^id seigni- 
 *' ories, for the same dues as are laid upon the other conceded lands in the said 
 '* seigniories ; which dues shall be paid by the new settlers (nouveaux Habitans) 
 " into the hands of the Receiver of His Majesty's domain, in the City of Quebec, 
 ** without its being in the power of the Seigniors to claim from them any dues of 
 " any kind whatever." 
 
 What, now, does this Arret amount to? The King has been told that certain 
 Seigniors have not settled their lands ; and he says, if they do not do so, he will 
 take their Seigniories away from them, — a course ot procedure which he had 
 threatened before, but had never carried out. This course, however, was now to be 
 taken through the agency of the Attorney General as prosecuting officer, and by 
 the Governor and Intendant acting conjointly. The King further says, that he 
 learns that certain Seigniors refuse to grant to Habitans, unless they get cash pay- 
 ment, and that this keeps back the settlement of the country ; which being contrary 
 to his royal intention, he orders that they shall be bound to make grants without 
 any payment in money. The ivord used to express the dues to be stipulated, is 
 not ceTiSf but redcvance, a general word, which does not necessarily imply a holding 
 a litre de cens. I do not mean to say that this kind of holding was not present to 
 the mind of those who drafted the Arret; but I do say, that the thing commanded 
 is, merely, that the Seigniors should grant in consideration of future dues, redcvances, 
 to be stipulated, — in other words, that they should grant on a sort ot credit, instead 
 of insisting on a consideration in cash. If it had been intended that the grants 
 must be d tiCre de cens, why was not the appropriate and definite word employed ? 
 If it had been intended to fix a constant rate, why was not that rate mentioned? 
 Raudqt, as we have seen, in 1707 and 1708 had called attention to the variety of 
 rates prevailing in the country ; and yet, acquainted with that fact, and after his 
 minister had called on Messrs. Deshaguais and D'Aguesseau to draft an Edict on 
 the subject, what does the King do ? Do we find him say, you shall concede at 
 so much, d litre de cens ? Not at all. You are to concede, he says, for rede- 
 yances — and without exacting ready money. What again is the one penalty 
 imposed? It is explicitly stated in the Arret. The Attorney General >shall 
 prosecute you, it says to the Seigniors, and shall confiscate your land, if 
 you fail to settle ; and if you refuse to concede at redevanceSy and insist on 
 cash, we permit the Habitans to implead you. What was to be done then ? 
 Was the land, in that case, to be granted at any one fixed rate ? Not at all : 
 we know that the King knew there was no fixed rate in the country ; for the fact, 
 as we have seen, had been brought under his notice. The land demanded by the 
 coinplaining Habitant^ was to be granted by the Governor and Intendant acting 
 conjointly, and this for the Crown — not for the Seignior — and it was to be so granted 
 at the rales of the other lands in the seigniory. These were vague words, which 
 might do when the officers of a despotic master had but to refer to him on all 
 occasions to find out his will ; but they are words altogether too uncertain for any 
 legal purpose now. The fact was, the Seigniors were by law at liberty to do 
 what they pleased, in the way of granting their land d litre de redevance, or refusing 
 isO to do and insisting on cash. This Arret purported to take from them the right of 
 so refusing. But it did not take from them the right of making any bargain that 
 any Habitant might be willing to make with them, — whether as to rate of dues or 
 otherwise. Supposing, indeed, any Seignior, instead of refusing a grant, to have 
 insisted on some enormous rate of rent, such as the Habitant could not in reason 
 be called upon to give, that might well enough have been taken, according to 
 the spirit of the law, for a refusal ; and the Governor and Intendant might then 
 have granted the land : that is to say, if really the Arret had been ever acted 
 upon — as I will presently show there is no reason to believe it ever was. But I 
 repeat ; the Arret did not make it illegal to dispose of land otherwise than by grant 
 d cens. It was only in case, upon application, the Seignior refused to grant d titre 
 de redevance^ that the law became applicable, and his land grantable by the 
 Governor and Intendant ; in which case the dues were to be paid to the Crown and 
 not to him. 
 
 But this Arret was coupled with another, to be found on page 246 of the same 
 Volume ; and how is it that those who are so anxious to enforce (as they pretend) 
 the first, show no anxiety to enforce the second also ? This second Arret sets forth, 
 that the King had been informed that the Censitaires did not live on their grants ; 
 
 2* 
 
20 
 
 and this also was contrary to His Majesty's intentions ; and he therefore by, this 
 Arret ordered that all Censitaires must keep hearth and home upon, and must clear 
 tlieir trrants ; and that in case of their failure so to do, upon a simple Certificate from 
 the (Are and Captain of the Cote (" sur les certificats des Cures et Capitaims de la 
 *• Co7c") that such and such Habitants had failed for one year to keep hearth and 
 home upon their lands and had not brought them into a state of cultivation 
 (^*com7ne les diis Habitans auront ete un an sans faire feu et lieu sur leurs terres^ 
 ** etne les auront point inises en valeur/^) their lands should be at once escheated to 
 the domain of the Seignior, by Judgments {Ordonnances) to be rendered in that 
 behalf by the Intendant. Thus any number of Censitaires not keeping hearth and 
 home could be, by an exparte proceeding, ejected from their holding. This Arret, 
 unlike the other, was frequently acted upon. Sometimes the Intendant was kind 
 enough to grant delay ; at others, he escheated the land without any delay at all, 
 according to the terms of the Arret. 
 
 The two An'ets, it is obvious to remark, were far from being equally stringent. 
 When the Seignior disobeyed the one, it required the Governor and Intendant, to 
 bring him to terms. When the Censitaire failed of obedience to the other, 
 nothing was required but the authority of the Intendant, acting upon the certificate 
 of the Cure and Captain of the Cdte. 
 
 This legislation of 1711 was all that really took place on the representations of 
 M. Raudot. 
 
 I return to the consideration of the documents forming the first part of the 
 Fourth Volume laid before this Honorable House. 
 
 The extract in that Volume, next following those of which I have already 
 spoken, being that under date of the 1st of March 1716, I pass over without remark ; 
 because it has no reference to anything in controversy here. It relates only to the 
 making of a rent toll (terrier) of the domain of the Crown. 
 
 Next comes an extract, a single sentence, having reference to the censive of 
 the Island of Montreal, a purely local matter ; and this again is followed by a 
 sentence from another document, which also calls for no present remark. 
 
 The two documents next following (to be found on pages 15 and 16 of the 
 same Volume) are, however, documents of much importance. They purport to be, 
 the one a minute of the proceedings, or of part of the proceedings had at a sitting of 
 the Conseil de la Marine, (the Board of Direction of what was then the French 
 Colonial Office,) held on the 9th of May, 1717, — and the other a copy of a draft of 
 an Arret which at that sitting that Board resolved to recommend to the King. 
 
 It would seem from these papers, that Begon, then the Intendant, (for Raudot 
 had ceased to be so,) had made some representations, which unfortunately are not 
 printed, on a variety of matters ; and that he had complained greatly of a number of 
 practises characterised by him as abusive. Among other such matters, he seems to 
 nave represented that a droit de retrait was sometimes stipulated, so sweeping in its 
 range as to give the Seignior a right of pre-emption of all manner of articles that 
 his Censitaire might have to sell, I remark particularly on the onerous character 
 of some of these charges, because the statements here, and in M. Raudot's 
 despatches of 1707 and 1708, made in regard to them, show the utter miatake of 
 the assertion frequently made, that onerous demands have been made by the 
 Seigniors only since the cession of the country to the British Crown. It is common 
 to say that everything onerous or odious connected with the tenure took its rise after 
 the cession. Here, however, we find that long before that date, clauses much more 
 stringent and odious than any that now prevail were complained of, and were even 
 not reformed by those in authority. I say, they were not reformed ; because, though 
 the Council of the Marine seem to have passed a vote affirmatory of the principle 
 that all these matters should be set right, yet the Arret contemplated by that vote 
 never passed into law. It was a document which had the sanction of the Count de 
 Toulouse, Admiral of France, and of Marshal d'Estrees, — doubtless a very arood 
 sailor and a very good soldier, — and it was worthy of their naval and military 
 education. A number of its clauses are so singularly contrary to every notion of 
 
21 
 
 IftW, thatitis impossible it could ever have been oromulgated with the force of 
 
 law. In truth it never paseld into an Arr^t y — a draft of an Arrdt it may have 
 
 been — an Airet it never did or could become- — One thing, too, is particularly 
 
 worthy of remark, that neither in this minute of the Council of the Marine, nor in 
 
 this draft, any more than in the Arrets of Marly, is there any proposal to interfere 
 
 ^ with any past contracts, or even to regulate future contracts, in so far as the 
 
 ll amounts or kinds of dues stipulated or to be stipulated (various as these were known 
 
 *' to be) were ia question. There is no trace of the notion of acting on the proposal 
 
 of M. Raudot, to equalize the rate of cens el rentes all over the country. 
 
 That this draft of an Arret, such as it was, never really so much as had the 
 Royal sanction, is a fact still further evidenced by the next extract to be found in 
 the same Volume. This extract (on page 18) is short ; and yet must be read two or 
 three times, in order to ascertain what it means. It is part of an instruction from 
 the King to the then Governor and Intendant, under date of the 26th of June 1717 ; 
 and (rendered into English as closely as I can render it ) reads thus :— 
 
 " * * The attention they are to pay to the execution of the Arret 
 
 " of the 6th July, 1711, which reunites to the domain of the Crown the seigniories 
 " that are not inhabited, and to the obliging of Seigniors who have lands for conces- 
 *' sioii within the limits of their seigniories to concede them, is very necessary for 
 " the settlement and augmentation of the colony. They are to prevent the Seigniors 
 *' from receiving cash (ils doivent empecher que les seigneurs recoivent de l^argent) 
 ** for the lands which they concede in standing wood, it not being just that they 
 " should sell property on which they have laid out no money, and which is given to 
 ** them only to get it settled (qui ne leur est donne que pour /aire habiier.y 
 
 These words show what the Crown meant by the Arrets of Marley. Here is 
 the Crown's own gloss on the Crown's Arrets. They were to prevent the Seigniors 
 from taking money for lands conceded en bois debout. Not that there was a fixed 
 rate at which lands were to be granted ; but that money was not to be taken for 
 wild land. Most surely, too, this extract further proves that the draft proposed by 
 the Minute of 1717 could not have had the Royal sanction. Had it been approved, 
 inese instructions could not have been written. 
 
 The next extract in the same Volume, of date of 1719, is interesting as showing 
 that in 1716 the Crown had sent orders to the colony, to cease granthig seigniories. 
 The despatch conveying these orders is not printed ; though, curiously enough, an 
 uninteresting extract from a letter of the same date appears in the collection. 
 
 I pass on, then, to speak of the terms of the grants made after 1712,'the date of 
 ■—.the promulgation in Canada, of the Arrets of Marly. 
 
 IHr I have already stated, and any body who will study the grants may verify the 
 assertion, that none of the grants made before this date imply the condition to sub- 
 concede in any manner or to any body. The only obligations are on the grantees 
 themselves ; and those to whom they may grant, to do certain other things. There is 
 no obligation to sub-grant at all. — Coming, now, to the grants since that period, I 
 find that they are ninety in number, of which thirty-five are not here to be counted, 
 as being either not in Canada, or as revoked, or for other causes. Of the fifty-five 
 which remain, fifty-one have been printed, and I have procured copies of three 
 others ; so that we have the terms of fifty-four. These form nearly one fifth of the 
 total number of grants now in force, and they cover some three millions of arpents, 
 or three-tenths of all the land granted en fief. 
 
 In 1716, as I have stated, the King prohibited the granting of more seigniories 
 in Canada. And from the date of the publication of the Arrets of Marly, to that of 
 the enforcement of this order, five seigniories only were granted. One of these, 
 granted in 1713, (and printed on page 454 of the First Volume laid before this House,) 
 seems never to have been taken possession of. Another, of the same dale (printed 
 on page 455 of the same Volume,) was that of an Augmentation of BeloBil. 
 Singularly enough, these are printed as embodying an unintelligible combination 
 of the ^/and censive tenures ; the grants purporting to be en fief, and yet subject 
 to a nominal cens. I suppose this to be a clerical error. But it is of no consequence 
 
 I 
 
22 
 
 for my present argument. All I need observe as to these grants is, that like the 
 older grants, they contain no clause hinting at any obligation to sub-grant. 
 
 The other three grants of this period, however do contain clauses, which, if 
 sanctioned by the Crown, would have changed greatly the character of the grants, 
 as compared with preceding grants. The first of these in order of time was the 
 grant, in 1713, of a small Augmentation of a Seigniory in the District of Quebec ; 
 and is printed on page 64 of the same Volume. This grant provides that the grantee 
 shall concede the said lands at redevances of twenty sols and a capon for each arpent 
 of front by forty in depth, and six deniers of cens^ without power to insert in the said 
 concessions either any sums of money or any other charge than that of the mere 
 title of redevances^ and those therein above mentioned, agreeably to the intention of 
 his Majesty. Here re-appeared the idea which Raudot, when Intendant, had desired 
 to carry out by an Edict ; but which the King- would not carry out. 
 
 The year following, another grant was made, of the large seigniory of Mille 
 Isles, in the District of Montreal. And here again a like clause appears ; but with 
 this remarkable variation, that whereas in the grant last above mentioned the rate 
 is fixed at twenty sols and a capon par arpent of front hyjorty in depth, in this, of 
 Mille Isles, the fixed price is twenty so^ and a capon for each arpent by thirty. But 
 what is more remarkable is, that this clause was left out in the Brevet by which the 
 King ratified the grant in the year 1716 ; showing that the King never had ordered 
 and did not even sanction its insertion. This Brevet of Ratification is not printed ; 
 but I have had the good fortune to be able to peruse an authentic copy of it, and so 
 to ascertain the fact, that, while it purports to recite at full length all the conditions 
 of this grant, the clause in question is omitted from it. 
 
 The last in date, of these three grants, is that of the seigniory of the Lake of 
 Two Mountains to the Seminary of St. Sulpice. This grant contains the same 
 clause as the preceding, except that the rale is calculated on a depth of forty 
 arpents instead of thirty. And now we arrive at another fact of the utmost interest 
 and importance. From the extracts from these titles, printed some years ago in 
 the Appendix to the Report of the Seigniorial Tenure Commissioners, — and from 
 copies of the titles themselves which I have myself procured, — I find that in the 
 i^reue^ of Ratification of this grant by the King, which was issued in 1718, this 
 clause was — not indeed wholly omitted — but very materially altered, by the King. 
 In the first grant by the Governor and Intendant, the clause reads as I have stated. 
 But in the Brevet in question — the Letters Patent of the King — it is made to read: — 
 " On condition * * of conceding the said lands tvhich shall be uncleared (qui seront 
 ** en bois debouty^ on the terms specified in the first grant, but with the added 
 clause—" permitting them, nevertheless, to sell or grant at higher dues (^d redevances 
 *^ plus fortes) any lands whereof there may be as much as a fourth part cleared.^^ 
 
 It is, then, perfectly apparent, that when the King saw this grant, he did not 
 choose to make the terms so stringent. He said, you must grant your wild lands at 
 this rate, but you may do what you please with any lands which have been partially 
 cleared. — I shall show presently, that some years later His Majesty went much 
 further in the way of relaxation, of even this modified requirement, in favor of these 
 grantees, and with reference to this very Seigniory. 
 
 In the meantime, it is clear that in these grants the King would not insert this 
 clause. It is not in the ratification of Mille Islea at all, and in that of Two Moun- 
 tains it is cut down to half its original meaning. As to his intentions on this head, 
 some further evidence is to be drawn from the fact, that on the very day of the date 
 of the Arrets of Marly, he ratified (by a Brevet pf Ratification, to which I have already 
 alluded, and of which one of my chents has furnished me with a copy) as many as 
 eleven anterior grants ; adding therein new clauses not to be found in the originals, 
 for the purpose of reserving land for forts, &c. ; but not putting in this clause, — and 
 this too, notwithstanding the Brevet in question, purports to set forth in detail all 
 the conditions under which the grantees were to hold. Again, five years later, in 
 1716, 1 have ascertained that he did precisely the same thing in two other Brevets of 
 Ratification then granted, for concessions originally made in 1702, of the two sei- 
 gniories of Soulanges and Vaudreuil. One of these last mentioned documents is 
 
23 
 
 printed on page 240 of the JFirst Volume laid before this House. The other, I have 
 procured. 
 
 In one word, the case is clear, that the insertion of this clause by the Governor 
 and Interidant in these three instances, was their own unauthorized act, — dictated, 
 no doubt, by a wish on their part to carry out a policy of control over the Seigniors, 
 far beyond any thing warranted by the Arrets of Marly, or even contemplated by 
 the King ; and that the King in fact never even sanctioned it in any way. 
 
 I say never ; and the next step in the proof of this, is to be found in the 
 circumstances of the next grant made after that of Two Mountains. I refer to the 
 grant of an Augmentation of St. Jean or Maskinonge (I hardly know by which 
 name the Augmentation ought to be called) granted to the Ursuline ladies of Three 
 Rivers, in 1727 ; up to which year no grants had been made since 1717. I have 
 already mentioned that all farther grants had been stopped in this latter year; 
 but in 1727, Messrs. Beauharnois and Hocquart, as Governor and Intendant, took 
 on themselves to make this small grant to these ladies. It was a very peculiar 
 one, and contained the obligation to concede ; but in the present case the rate varies 
 again, and becomes twenty sols and a capon for one arpent by — neither forty nor 
 thirty — but, this time, twenty arpents of depth. I have the Brevet of Ratification 
 of this grant, furnished me by the Seignioresses ; and it does not contain this 
 clause. Like the others I have mentioned, it purports to recite all the grantees' 
 obligations ; but the King would not put into his grant what his Governor and 
 Intendant had put into theirs, upon this head. 
 
 Yet again, in 1729, the King made a grant of his own mere motion— the first 
 grant of the Seigniory of Beauharnois, which was afterwards granted again in 
 1750 ; a document printed on page 240 of the Second of the Volumes laid before 
 this House. This grant gives six leagues by six leagues to the Governor and his 
 brother j and I need hardly say that he does not oblige the grantees to concede, 
 nor indeed to do any other thing than take the land and turn it to account. The grant 
 was meant to be a magnificent endowment to a man whom the King had chosen 
 to raise to the government of the country. 
 
 Further evidence will still be found, the more we examine into the acts of the 
 King in this respect. On page 140, of same Second Volume, will be found an 
 Qrdonnance of the Governor and Intendant, by which on the petition of Louis 
 Lepage, the Seignior of Terrebonne, those officers (under date of the 22d of July 
 1730) declare that, " waiting the order of His Majesty, and under his good will 
 *^ and pleasure, we have allowed and do allow the said petitioner to continue his 
 " settlements to the depth of two leagues beyond that of his said seigniory, to take 
 *' out pine and oak timber, and to make such roads as may be necessary for the 
 " drawing out of the same ; and we prohibit all persons from molesting or distur- 
 " bing him until the will of His Majesty be known." The recitals in this docu- 
 ment set forth, that Lepage had been lumbering extensively, and manufacturing 
 pitch and tar, and was under contracts for the public service, and in fact wanted 
 more land and especially more wood-land for all these purposes. Whereupon, 
 instead of granting him more, they say that having seen the concession of the 
 Seigniory of Terrebonne, waiting His Majesty's order, they grant him this permis- 
 sion. No title of Terrebonne nor of its Augmentations appears in any of the 
 Volumes laid before Parliament. I suppose the register is in a state of confusion, 
 and that from some difiiculty of this kind it has happened that neither the remark- 
 ably liberal grant of Terrebonne nor the actual title of this Augmentation, now 
 called Desplaines, have been published. I have, however, obtained a copy of the 
 King's grant thereafter made in 1731 ; and 1 find that, after the same recitals, it 
 concluded thus : — 
 
 ** Having respect to which, and wishing to facilitate to the said Sieur Lepage 
 " de St. Clair, the means of sustaining establishnments which cannot be other than 
 " useful for the colony. His Majesty has conceded, given, and made over a territory 
 " of ^ two leagues, to be taken in the unconceded lands in rear and along all the 
 ** width of the said Seigniory of Terrebonne ; to enjoy for himself, his heirs, or 
 " ayant cause as his and their own property, (comme de propre) and this with the 
 
24 
 
 ** iame rights that belong to his said Seigniory, and under the same dues, clauses, 
 *< and conditions with which it is burthened." 
 
 This Seignior, then, wanted a large tract of land for lumbering and making 
 pitch and tar, and not for mere agricultural settlement. It is granted to him on the 
 same charges and conditions as the seigniory of Terrebonne ; and these are just 
 none at all. The grant gives mines, rivers, and everything else, out and out ; 
 nothing was imposed but the duty of planting homes within a certain time ; yet 
 this grant is of 1731, twenty years after the date of the Arrets of Marly, and at a 
 time when the Governor and Intendant were putting in clauses of a restrictive charac- 
 ter, which the King was leaving out. At this very time, I say, the King himself 
 made this grant, for lumbering and other commercial purposes, under a title as free 
 as that which was granted to the predecessor of the grantee, by the Company of 
 the West Indies, some sixty years before. 
 
 I return once more to the documents contained in the Fourth of the Volumes 
 before this House. The extract next following those on which I have already 
 remarked, is one dated 1727; which calls for no remark, beyond the observation 
 that it relates merely to the question of a particular Seignior's claim to what were 
 known as the droits dPechange. By the Custom of Paris, a Seignior was entitled to 
 lods, that is to say, to a fine of a twelfth part of the price, in case of any mutation 
 by sale, or by contract equivalent to sale. But on exchanges there was no such 
 right, till the French King in 1673 created it. The King afterwards sold or gave 
 the right to particular Seigniors, as he pleased. — An Edict, anterior to the date at 
 which we have now arrived, had granted this right to the Seminary of Montreal ; 
 and a question had arisen as to the circumstances under which the Seminary had 
 so acquired this privilege — a matter of no interest at present. 
 
 The next extract in the Volume, (on page 20,) is equally irrelevant, though 
 on another subject. It is part of a despatch to the Governor and Intendant, of date 
 of 1730 ; and states that upon a report by the Minister on a number of decisions of 
 conflicting tenor, which had been rendered in Canada by the Intendant and his pre- 
 decessor, — 
 
 " His Majesty has thought necessary to make his Declaration hereunto 
 ** annexed, in interpretation of the 9th article of that of the 5th July, 1717. He 
 ** ordains that witliout regard to the Ordonnances of the said Sieurs Begon and 
 *< Dupuy, the cens^ rentes, dues and other debts contracted before the registration of 
 " the Declaration of the said 5th day of July, 1717, when money of France, or 
 " Toumois or Parisis, is not stipulated, shall be paid in money of France, deduct- 
 ** ing one fourth, which is the way of reducing the currency of the country 
 <* (monnaie du pays) to that of France ; and that when money of France, or Tour- 
 " nois or Parisis is stipulated, they shall be paid in money of France without any 
 ** deduction. You will please to have the same published and registered, and you 
 ** will take care that it be strictly executed." 
 
 This Declaration of 1717 is not — and I thus mention it to say so — is not the 
 draft of .4r7<?i of the same year, printed in this Volume, and upon which I have 
 already remarked'; but a Declaration really issued by the King at the time in 
 question, on quite another subject. Before 1717, there was current in the Province 
 a sort of debenture money, called monnaie des cartes. This had become very much 
 depreciated, and the King called it in ; declaring at the same time that all debts 
 incurred during its prevalence, should be paid in money of France, but subject to a 
 deduction of one fourth. Under this regulation, a number of troublesome suits had 
 taken place, on questions whether certain particular dues were to be paid in full or 
 not; and this stale of things had given rise to several judgments (Ort/onnances) 
 utterly inconsistent with each olher. It was plain that the Authorities in the country 
 did not know what to do in the matter. By this despatch, therefore, the Minister 
 said, on the representations which you have sent home, the King has felt it neces- 
 sary to issue an explanatory Declaration, herewith sent out. This last document 
 is in print, and well known ; and it shows what the King meant should be done 
 as to these payments ; but it has nothing to do with any matter now in controversy. 
 
95 
 
 The next of these extracts (on page 21) bears date the 10th of October 1730 j 
 and it is of great importance. It is a despatch from Messrs. Beauharnois and 
 Hocquart, to the Minister at home, and is in these terms : — 
 
 " During our late stay in Montreal, complaints were made by several individuals, 
 ** that the Seigniors refused to give them grants in their seigniories, itnder various 
 " pretexts, although bound by the Arret of the Conseil d^Etat, of the month of 
 *' July, 1711, to make such grants to the Habitans who may require them, under 
 *< provision in ihe event ot refusal, that such Habitans may apply to the Gover- 
 *' nors and Intendanls of the country, who are commanded by His Majesty to grant 
 *•' to the said Habitans the lands required by them. We have the honor to report, 
 *' that upon this subject a variety of abuses have been introduced, as well by the 
 *' Seigniors as by the Habitans, which are equally contrary to the Arret of the 
 *' Co7iseiL d'Etat of 1711, and the settlement of the colony. Some Seigniors have 
 '* reserved considerable domains within their seigniories ; and under the pretext 
 " that these lands form part of their domain, have refused to concede the lands 
 " therein which have been demanded by way of grants, believing they were 
 ** entitled to sell, and have in fact sold, the same. We have also observed, that 
 " in the partition of seigniories among co-heirs, such of them as have not the right 
 " of justice (droit de justice) or the principal manor-house, ceasing to hold them- 
 ** selves out as the Seigniors of the fief^ refuse to grant to the Habitans the lands 
 ♦* which are required of them within the portion which has accrued to them, and 
 ** deem themselves to be without the operation of the Arret, which requires Seig- 
 ** niors to concede, and on the contrary believe themselves entitled to sell the lands 
 ** which they grant. 
 
 " Another abuse has arisen on the part of the Habitans, 'vsrho having the right 
 ** of obtaining concessions from the Seigniors, after having so obtained lands, 
 ** shortly after sell them to others, the effect of which has been to establish a sort 
 " of trade (une sorte d^agiot) in the country, injurious to the colony, and not fur- 
 " thering the settlement and cultivation of lands, but tending to Ibster habits of 
 " indolence among the Habitans ; a practice to which the Seigniors are not averse, 
 <* inasmuch as tods et ventes accrue to them on the sale of such lands. la this way 
 ** a number of grantees do not reside upon their grants, and the Seio-niors are not 
 ** anxious to reunite them to their domains ; and when such re-union is demanded, 
 " those who are in poseession cannot recover back the sums of monev paid by 
 " them. 
 
 " We are therefore of opinion that by way of mantaining the Arrets oi^ the 
 " Conseil d^Etat of 1711, it would be well to render another, prohibiting Seigniors, 
 *' and all other proprietors, from selling wild land, on any pretext whatsoever ; 
 " under penalty against the Seigniors and proprietors of all lands so sold, of the 
 " nullity of the deeds of sale, the restitution of the price thereof, and deprivation 
 ** of all right of property in the said lands, which should be de plein droit reunited 
 " to the iCing's domain, and reconceded, by us, in his name. 
 
 " It is true that generally the Seigniors concede, or pretend to concede, their 
 << lands gratis ; but those who evade Ihe provisions of the Arret of the Council, 
 " take means to obtain payment of the value of such lands, without its appearing 
 " upon the face of the deed ; either by obtaining obligations from the grantees for 
 " sums pretended to be due them for other considerations, or under color of some 
 inconsiderable clearing without cultivation, or under pretence of natural prairie 
 " land found upon the grant. 
 
 i( 
 
 "If it had pleased M. Hocquart to adjudicate upon all the contestations arising 
 " from the abuses which we have had the honor to bring under your notice, he 
 " would have disturbed a number of families and have given occasion to consider- 
 *' able litigation. He has deemed that the grantees, not having taken advantage 
 ** of the provisions of the Arrets of the Council which were favorable to them, it 
 '* was altogether their own fault if they have paid sums of money for the grants 
 *' made to them, and that they are not entitled to recover them back, according to 
 ** the maxim of law : Volenti nonfit injuria. 
 
26 
 
 " We Velieve that it is for the advantage both of the Seigniors and of the 
 *' Habilans, to allow matters to remain in their present state, awaiting the Arret of 
 " the Council, which we have the honor to request ; and not to alter the practice 
 " which has heretofore obtained. It would nevertheless appear to us equitable, 
 <* that in the event of clearings or natural prairie land being found, the Seigniors 
 " should derive the advantage thereof ; ana ihat in the grants made by them, such 
 *' clearings and prairie lands should be indicated, as well as the amounts received 
 " by them from the grantees. 
 
 *' The wild lands are becoming valuable in this colony, inasmuch as the grantees 
 *' in the front ranges require wood, and are under the necessity of asking for grants 
 " of land in the third and fourth ranges, to supply this want. The generality of 
 " the Habitans are not aware of the provisions of the Arret of^ the Council touching 
 *' them in relation to tliis matter. Mr. Hocquart has caused some of the principal 
 ''among them to be informed upon the subject, without causing publication anew 
 " of the Arret. Before doing so, he awaits the orders which we shall receive from 
 " you during the ensuing year." 
 
 It is only justice to Messrs. Beauharnois and Hocquart to observe, that in all this 
 they do not propose to destroy existing contracts : but adhere to the sound principle, 
 volenti non fit injuria. The proposal they made, was to render the sale of wild 
 lands a kind ot crime, to be visited by the penalties of nullity, and so forth. As to 
 the ^rre^ of Marly, their understanding of it was most raanitestly, just that which 
 I have given to it — nothing more nor less. It told the Habitant^ if the Seignior re- 
 fused him, to go before the Governor and Intendant, and get from them a conces- 
 sion ; but it still left him in this position, that if he chose to go and make a contract 
 with the Seignior, he must put up with the consequence. So understanding, they 
 go on to recommend that for the past, every thing should be left as it was ; and 
 then they propose the new law, which they think should be made about wild 
 lands. — If, moreover, any proof were wanting that the Arret of Marly had fallen 
 into desuHudSy this letter would furnish it; ibr it would appear that in 1730, it was 
 so little known, that Hocquart had to explain its provisions to some of the chitf 
 Habitans, — a mode of procedure, perhaps less open to comment then, than the like 
 conduct on the part of a public functionary of like rank would be now. , 
 
 In reply to this despatch we have next, on page 23 of the same Volume, a 
 letter, or rather extract from a letter, addressed by the Minister to Messrs. Beau- 
 harnois and Hocquart, reminding them that they had been somewhat remiss in the 
 matter of the making up of the papier terrier, or Crown rent-roll of the colony, and 
 expressing a disposition to resort to a line of policy not very closely corresponding 
 with that recommended by them. 
 
 In their answer to this, of October, 1731, the next in order (page 24) of the 
 extracts under review, these gentlemen excuse themselves for their want of despatch 
 as to the terrier ; and say that the fault was not theirs, but that of some of the vas- 
 sals of the Crown ; and they go on to ask that what they had suggested might be 
 done without waiting for this ; adding — '* In respect of the concessions accorded to 
 ** the Habitans by the Seigniors, M. Hocquart has governed himself, up to the 
 *' present time, by the Arret oi the 6th July, 1711, and since he has been in Canada. 
 '' has pronounced the reunion of more than two hundred concessions to the domain 
 " of the Seignior, in default of the Habitans observing the duty of keeping hearth 
 *' and home." From which we see that these Ministers of the Crown — who had 
 never acted on the first Arret of 1711, who had never granted a Seignior's land to 
 a Censitaire, had acted on the second Arret of the same date, in two hundred 
 cases. The first Arret^ in fact, never was acted on as law ; the second was con- 
 stantly so acted on. 
 
 The first representations of Raudot in 1707 and 1708, as we have seen, were scar- 
 cely, if at all, acted upon, in the framing of the Arrets of Marly in 1711 ; but these re- 
 presentations of 1730, by Beauharnois and Hocquart, renewed in 1731, produced 
 full fruit in the Arret of 1732, which was passed in exact accordance with their 
 suggestions. This Arret (io be found on page 228 of the Second of the Volumes 
 before this House) orders a new comminatory publication of the two Arrets of 
 Marly j and, to prevent the double abuse of sales of wild land by Seignior or Cen- 
 
sitaire, expressly prohibits " all Seigniors and other proprietors (lous Seigneurs et 
 *' autres •propHetaires) from selling any land in forest (tcrre en hois debout^) on pain 
 " of nulhly of the contracts of sale, and of restitution of the price ol such sold lands ; 
 ** which lands shall further be re-united de piano (de ptein droit) to the domain of 
 " His Majesty." 
 
 The fact, that it was deemed necessary in 1732 for the Kmg to legislate in 
 this manner — for I admit the power of the King to legislate — proves, at all events, 
 that in 1711 he had not so legislated. True, he had then said that Seigniors should 
 concede, or their lands might be conceded, to their loss ; but he had not said that 
 if they should not concede but sell, the sale should be null. He merely gave a 
 certain remedy in case of refusal. Now, he promulgates a new penalty 5 the nul- 
 lity of the contract and the re-annexation of the land to his domain, in 
 order to punish the one otfence, which he desired to put an end to, that 
 is to say, the sale of wild land. It would seem that the notion prevailed in those 
 days, that if one allowed land to be sold without its being first cleared, it was less 
 likely afterwards to be cleared ; and that an edict against the sale of land en bois 
 deboutj was thus likely to promote the clearance of the country. 
 
 I pass to a further piece of evidence, still tending the same way ; and connected 
 with the grant of Argenteuil. The document 1 am about to cite is not one of those 
 laid before Parliament. I cannot even say whether or not it is to be found in the 
 Provincial Archives. But I have a copy of it, authenticated by the signature of M. 
 Hocquart ; which the proprietor of that Seigniory (one of ray clients) has placed in 
 my hands. And from it I am about to quote. 
 
 Argenteuil was first granted (or rather, the grant of it was first promised) by 
 two short instruments, one signed by Duchesneau, the then Intendant, in 1680, the 
 other by the Comte de Frontenac, then Governor, in 1682 ; both of which are prin- 
 ted in the First of the Volumes laid before Parliament — on page 372. By these, 
 those functionaries promised that Seigniory to the Sieur D'Ailleboust, to be held en 
 fief, with all droits de justice attached thereto, and absolutely without condition or 
 reserve, — so soon o.s the King should see fit to allow the country above Montreal to 
 be settled. — The Seigniory, as I need hardly say, is on the Ottawa ; next above 
 that of the Lake of Two Mountains, which latter was afterwards granted to the 
 Seminary of Montreal, in 1717 and 1818, as I have before observed. 
 
 For a number of years, settlement on the Ottawa continued to be forbidden. 
 But in 1725 the widow of the original grantee was admitted to foi et liommagc for 
 the grant. 
 
 Shortly previous to this, a dispute had arisen between her and the Seminary, 
 with reference to the line of division between their respective Seigniories. The 
 Seminary contended that this line should be run, in such a way as to cut off a 
 large part of the tract which Madame D'Ailleboust desired to possess. The dispute 
 was brought for trial before the Conseil Suf)erieur at Quebec, and that body decided 
 in favour of the Seigriioress of Argenteuil ; but among other propositions which had 
 been put forward durmg the contestation, was this, — that the lady really owned no 
 seigniory at all ; having no grant — but merely a promise of one. This being- 
 referred to the King, the result was a reply, under date of the 6th of May, 1732, 
 from the Comte de Maurepas to the Governor and Intendant — of which the follow- 
 ing is a literal translation : — 
 
 " I have received the letter which you wrote to me, on the 21st of October of 
 " last year, with the paper which accompanied it on the subject of the contestation 
 ** between the Seminary of Si. Sulpice, and the Dame D'A rgenteuil. On the 
 " leport which I have made of the whole matter to the King, His Majesty is plea- 
 ** sed to leave to the Dame D'Argenteuil the enjoyment of the Seigniory in ques- 
 ** tion, conformably to the boundary line fixed by the Arret of the Conseil Superieur 
 ** of Quebec, on the 5th October 1722, on condition that she settle it (qu^elle 
 " Pet Mir a) and that she do not attract to it the trade of the Indians, and so injuriously 
 " affect the propagation of the faith. You will take care to explain to her the inten- 
 ** tions of His Majesty, and will not fail to give effect to them." 
 
38 
 
 Thus it appears that Mad. D'Ailleboust was to have the seigniory on certain 
 conditions : but these did not oblige her to sub-grant on any particular terms. The 
 report had gone home, that this lady had begun to clear upon her seigniory ; and 
 the King replied that she was to continue to do so, but was not to draw to her settle- 
 ment the Indian trade — so counteracting her neighbours' efforts in spiritual matters. 
 This, and no more, the King insisted on. His Governor and Intendant had been 
 inserting in their grants the clause requiring concession at fixed rates. The King 
 had not done so, — did not do so in this case. 
 
 In the meantime, Messrs. Beauharnois and Hocquarthad begun to put into their 
 grants a new clause — the following: — "d la charge * * de faire inserer pareilles 
 *^ conditions dans les concessions quHLfera d ses tenanciers aux cens et rentes et rede- 
 <* vances accoutumes par arpent de terre de front sur quarante de profoundeur,'^-- 
 " on condition * * of causing to be inserted the like conditions," (this clause fol- 
 lows several others, requiring the grantee to preserve oak timber, give notice of 
 mines, keep hearth and home, allow roads, and so forth) oa condition, I say of the 
 Seignior's causing the like charges to be inserted " in the concessions he shall 
 *^ make to his tenants at the cens et rentes and dues accustomed per arpent of land of 
 " front by forty of depth." 
 
 This clause is vague — ambiguous even ; may be read to mean, that the 
 grantees shall sub-grant at some cens accoutumes ; or, as merely meaning, that when 
 they shall so sub-grant, they are to put into their deeds certain clauses, held 
 necessary on grounds of public policy. Beauharnois and Hocquart may have meant 
 to put upon it the former meaning. But that is not the question. The clause is to 
 be read and made out, as it stands j not explained into a something else, by any 
 consideration from without. Limiting the terms of a grant, and this in derogation 
 of the common law, the rule of law is clear,~ihat any ambiguity in it is to be 
 interpreted favorably towards the grantee, restrictively of the limitation to be 
 imposed. 
 
 Vague as it thus is, this clause was put by Messrs. Beauharnois and Hocquart, 
 and their successors as Governors and Intendants here, into forty-five of the sub- 
 sisting grants of seigniories in Lower Canada. Three other grants, those of Grande 
 Riviere in 1750, an Augmentation of Riviere Quelle in the same year, and an 
 Augmentation of Rimouski in 1751, — though granted here by ihe Governor and 
 Intendant, — do not contain it, but simply declare the grantees to hold on the terms 
 of their older grants. Another grant, during the same period, was made by the 
 King himself ; the second grant of the seigniory of Beauharnois, in 1750 5 and this 
 also contains no such clause, but answers word for w^ord to the earlier grant of 1729, 
 already remarked upon. So that, between 1731 and 1760, there were these lour 
 grants in Lower Canada made without this clause ; and forty-five with it. 
 
 But I come now to perhaps the most important point of all. How did the King 
 deal with this clause? If, in ratifying the grants which contained it, he qualified 
 or explained it away, or wholly left it out, there can be no doubt as to his meaning 
 in the premises. And that he did so, I shall have no difficulty in proving. 
 
 I begin by taking up the case of one of these forty-five grants, as to which we 
 have (in the Fourth Volume, so often cited) some most interesting correspondence, 
 — the grant of the Augmentation of Two Mountains to the Seminary of Montreal. 
 1 need not repeat here what I have already said as to the circumstances of the grant 
 of Two Mountains in 1717, and its Ratification by the King in 1718, on easier 
 terms than those first proposed by the Governor and Intendant ; nor yet, as to the 
 afler controversy that had arisen between the Seminary and the Seignioress of 
 Argenteuil, as to the boundary between their properties, and the consequent decision 
 of the King as to the terms on which the latter was to hold the Seigniory of 
 Argenteuil. The material new fact is, that in 1733, a grant was made by Beauhar- 
 nois and Hocquart to the Seminary, of a large Augmentation of their Seigniory ; 
 and in that grant they inserted — not the clause fixing a rate of cens, which was 
 first inserted in the grant of the Seigniory in 1717, nor yet the modification of it 
 which the King had put into his ratification, of 1718 ; but this last, new, ambiguous 
 clause above quoted. 
 
29 
 
 I was aware, before I saw the correspondence I am about to remark upon, that 
 the King, in 1735, did, by the terms of his Ratification of this last grant, materially 
 change the tenor of this clause. For the fact had been brought out, by the publica- 
 tion in the Appendix to the Report of the Seigniorial Tenure Commissioners, of 
 extracts from the grant and ratification — showing such to have been the case. But 
 till I read this correspondence, I was not aware how deliberately and advisedly this 
 had been done ; how attentively the matter was canvassed ; how explicitly the King 
 had put it of record on the occasion, that he would not do that which his servants 
 in the colony were so bent on getting done. 
 
 To come, then, to the first document of the series, en page 25 of the Fourth 
 Volume. It is a despatch from the Minister (his name not given) to Messrs, 
 Beauharnais and Hocquart, and is dated the 6th May, 1734. It opens thus : — 
 
 ** M. I'Abbe Couturier, Superior-general of the Seminary of Saint Sulpice, 
 '* has applied for the confirmation of the grant which you made by order of the 
 " King, to that Seminary, on the 26th September of last year ; but he at the same 
 ^' time prays that it may please His Majesty to explain some clauses inserted in 
 '* that grant as well as in tliat which was made in 1717 to the same Seminary, and 
 ^' even to change others agreeably to the draught of a patent {Brevet) which he has 
 '* presented me. He has asked that the boundary line fixed for the Seigniory of 
 " the Seminary be altered, and that the same direction be laid down for it as for that 
 *' of the Sieurs de Langloiserie and Petit ; and he has represented the necessity of 
 *• doing so, to avoid the contestations which might arise from diversity of the 
 " directions of the lines of those seigniories ; that the clause which obliges the 
 ** Seminary to preserve the oak timber fit for the building of the King's ships be 
 '* restricted to such oak trees as may be found on the parts of the seigniory which 
 ** the ecclesiastics of the Seminary may reserve for the principal manor house or 
 " domain, a restriction which he has represented as necessary for the settlement of 
 ** the private grants to be made by the Seminary ; that the clause be suppressed 
 '- which provides the penalty of re-union to the King's domain, in default of actual 
 " settlement (d^etablirfeu el lieu) within the year and day, on the grant ; that the 
 ^* clause be also suppressed which imports (porte) that the private grants shall be 
 ** made at the usual cens et rentes lor each arpent in front by forty arpents in 
 '* depth 5 and as the same clause is found in the grant of 1717, he asks that it 
 " likewise be cancelled ; that the clause be also suppressed, as useless, which 
 '* provides that the beaches shall be left free to all fishers ; that the clause be 
 " likewise struck out, which declares that if the King should hereafter want any 
 ^' parts of the land for the purpose of erecting thereon forts, batteries, places cfarmes, 
 '' magazines and public works. His Majesty may take them without being held to 
 '* any indemnification ; and he has remarked that this clause had, been inserted in 
 <' the grant of 1717, but was omitted in the patent of confirmation of 1718 ; — that the 
 ** clause inserted as well in the grant of 1733 as in that of 1717, which declares that 
 " the ecclesiastics of Saint Sulpice shall hold their lands of His Majesty, subject to 
 " the usual rights and dues, be interpreted, and restricted to simple fealty and ho- 
 *' mage at each new reign, releasing the Seminary, when need may be, from all 
 *' dues of amortissemetit, prestation (Phommes vivants et mourants, and others, by 
 *' reason of these grants ; and finally that there be added a discharge from the obli- 
 " gation to buid a stone fort on the land granted in 1717, and an extension of that 
 " land to six leagues in depth." 
 
 On all these demands, the report of the Governor and Intendant is called for ; 
 and it is added that a copy of the draft prepared by the Seminary, and of their obser- 
 vations in support of it, accompany the despatch. 
 
 It is unfortunate, to say the least, — with a view to the right understanding of 
 the whole matter, — that these all important documents are not printed. I have tried 
 to obtain a copy of them in another quarter ; but have not yet succeeded. 
 
 The answer of Beauharnois and Hocquart, hoAvever, is printed, au long — on 
 pages 29 and following of our Fourth Volume. Much of it is of no immediate im- 
 portance, as regards our present subject. I cite, therefore, from it, for the present, 
 only such parts as are, 
 
30 
 
 The clause of the grant threatening re-union to the domain, in default of set- 
 tlement, — I observe en passant, — itJ most explicitly declared to be comminatory. 
 The Governor and Intendantin so many words say, *^the Ecclesiastics of the Sem- 
 " inary need give themselves no uneasiness abcnt it." 
 
 As to the clause more particularly under discussion, I translate their language 
 as exactly as 1 can. It is thus : — 
 
 " We do not know the reasons which induced his Majesty to fix, in the Letters 
 " Patent (Brevet) of 1718, the depth of the grants at forty arpents, and the amount 
 " of the cens et rentes. It was thought it would be agreeable to his intentions to 
 *' insert only, in that of 1733,— at the usual cens, rentes and dues, for each arpent 
 " of land in front by forty arpents in depth. 
 
 " The observation on the justice and equity of proportioning the rentes and 
 " dues to the extent of the property, which may be more valuable in one place 
 " than another, merits consideiation ; and it appears to us that his Majesty might 
 *' content himself with merely having inserted in the new Brevet to be issued, — at 
 " the usual cens, rentes and dues, for each arpent of land. 
 
 " This vague expression will leave the Seminary free to grant more or less in 
 " depth, and at more or less cens et rentes in proportion to the extent of the lands, 
 ** and even to their value. And as the usages are different in almost every 
 *' seigniory, the term "usual" will only restrain the ecclesiastics from granting, 
 " ordinarily, less than twenty arpents in depth, and from exacting higher rentes 
 ** than twenty sols for every twenty arpents in superficies, and one capon or its 
 *' equivalent in wheat. With regard to the cens^ as it is a very trifling due, which 
 *' has been presumed to be established only to mark the direct seigniory, and 
 " which carries with it lods eiverites, the usual amount in Canada is from six deniers 
 *' up to one sol for each arpent in front by the whole depth of the particular grants, 
 '^ whatever that depth may be. 
 
 ** The statement in the memorial, that the Seigniors in Canada, as every 
 " where else, have the right to grant, d cens et rentes^ whatever quantity of land 
 *' and subject lo whatever charges they please, is not correct as to the charges ; 
 *' the unitbrm practice being to grant at the charges above explained, or more 
 " frequently below them. If the right alleged were admitted, it might be abused 
 **■ by making grants, which ought to be, as it were, gratuitous, (quasi-gratuUes) 
 " degenerate into mere contracts of sale." 
 
 It is impossible not to notice here, the strange style in which this document 
 deals with the clause of the Brevet of 1718, as to the qualified obligation thereby 
 imposed, of sub-granting wild lands in lots of a fixed depth, and at a fixed rate. 
 The writers do not know how His Majesty came to fix upon that depth and rate ! 
 Why, the fact — as we have seen — is, that the King never had fixed either. It 
 was the then Governor and Intendant, who did all that was done in that direction. 
 The King had merely relaxed the rigor of their clause ; so showing it to have been 
 theirs, not his. In every other instance, so far as we can find, he had utterly 
 ignored the clause. 
 
 Nor can one help noticing the frank admission made, that the Ecclesiastics were 
 right in their proposition, that of right there ought not to bo any requirement made 
 for the sub-granting of lots of any prescribed depth, or at any fixed rate. True, it 
 is said that the Ecclesiastics were wrong in asserting (as it is manifest they had 
 done, strongly) the absolute right of a Seignior in Canada, as in France, to grant 
 in any quantities and at any price he pleased ; but all that is said against this pro- 
 position (one as clear in law as man could state) is — what? Why, that a 
 ♦' uniform practice^^ obtained to grant at certain charges, <' or more frequently be- 
 low them." Un iform practice, of lener departed from than followed! Undoubtedly, 
 it was usual to grant at low rate ; for land was a drug and cheap. But every 
 thing proves there was no " uniform practice" of stipulating any particular rate; 
 this particular despatch, no less than every other on the subject, that has been 
 printed. 
 
31 
 
 But, says the despatch, the proposed " expression vague'' of a customary rent 
 per arpent, will leave the Seminary free to do a good deal. " As the vsages are 
 (liferent in almost every seigniory,^' all it will do will be, to restrain the Seminary 
 from '' ordinarily^' granting less than twenty arpents, or charging more than so 
 much. The scquitnr is hardly clear ; and the word " ordinarily'' is hardly without 
 a certain significance of meaning. Was the restriction meant to be absolute, or 
 was it not? If not, it was properly no restriction at all. For, how say what rule is to 
 be followed as to its application ? Yet, that it was not understood as intended to be 
 absolute, even by this Governor and Intendant, we have their own written words to 
 show. 
 
 The answer of the Minister is to be found in the despatch enclosing the Brevet 
 of Ratification, as granted by the King in 1735, — and which despatch is the next 
 document given us (see page 33) in the same Volume. The clauses of it, having 
 reference to the matters [ am presently discussing, are as follows : — 
 
 " The obligation of keeping hearth and home within the year on pain of re- 
 ^^ union to the domain, has been expressed in it, agreeably to your observation ; 
 " but this clause is not to be strictly enforced, and His Majesty relies on your pru- 
 " dence in this respect. 
 
 **' He has been pleased to change the clause which you had inserted in your 
 *' grant, and which is also found in the grant of the Lake of Two Mountains, with 
 " respect to the cens et replies of the private grants ; and, in conformity with your 
 " advice on this article, it has only been declared in the Brevet^ that these grants 
 ** shall be made subject to the usual censy rentes and dues for each arpent of land." 
 
 It is said here, the King has. as to this latter clause, issued his Letters Patent 
 in terms of your suggestion. But, however courteous and accordant with diploma- 
 tic form, such a statement may have been, it happens not to have been the fact. 
 The extract in question from this instrument, has been printed in the Appendix of 
 the Commissioners' Report, (though, by the way, not quite correctly,) and it is not 
 in the terms indicated by this despatch. I have obtained a copy of the document ; 
 and the clause in question, in truth runs thus ; — 
 
 " And on condition * * of causing to be inserted like conditions in the par- 
 " ticular concessions which they will make to their tenants, at the ceris, rentes et 
 ** redevances per arpent of land, usual in the neighboring seigniories^ regard had to 
 *• the quality and situation of the heritages at the time of the particular concessions; 
 *^ which also His Majesty wills to be observed for the lands and heritages of the 
 " seigniory of the Lake of Two Mountains, belonging to the said ecclesiastics, not- 
 " withstanding the fixing of the said cens et redevances, and of the quantity of land 
 <• in each concession, set forth in the said Brevet of 1718, to which His Majesty 
 <* has derogated." 
 
 The '' expression vague^" then, of Messrs. Beauharnois and Hocquart, is not 
 taken. It is made still more vague. I should rather say, it is made clear and 
 unmistakeable. The King had been told that hardly any two Seigniories followed 
 like rules. He qualifies the term ''usual" {accoutumes) by express reference 
 to neighbouring Seigniories, presumably varying in this respect. He will not at 
 all limit the measure of the lots to be granted. He will not allude to any usual 
 rates, without explaining that they are of course to vary with the quality and value 
 of the lots to be granted, at the times of the concessions to be made of each. 
 
 What was all this, but in efiect, to bid the Seminary make their own bargains, 
 as occasion should serve ? The limit really put upon them ; what was it more than 
 this, that if they should charge too high rates, they wefe to be liable to suit before 
 the Governor and Intendant? If any man agreed with them as to any rate, — was 
 it meant to let him on the one hand keep the land, and on the other get relieved 
 from payment ? The law does not — common sense and justice do not — lightly 
 pronounce the nullity of a contract. A contract must be contra bonos mores, or ex- 
 plicitly prohibited by law on pain of nullity ; or it is not null. He who has waived 
 his right, by making a contract that he need not have made, such contract not being 
 by law null, must abide the result. Volenti nonfit injuria. So ruled this very Go- 
 
32 
 
 vernor and Intendant, in regard to this very matter. One nullity only, they had 
 themselves created, — the nullity of all sales of wild land by whomsoever made. Is 
 even that nullity of force now ? Is wild land escheated to the Crown, dc plein droit, 
 whenever sold? — Contracts never threatened with nullity, by anything purporting 
 to read as law, are they null ? Or rather — for that is the question here raised — are 
 they to be maintained as valid contracts against the grantor, so as to vest the land 
 in the grantee ; and yet set aside as null in favor of the grantee, so as to free him 
 from his obligation to pay, as he has voluntarily promised ? 
 
 But to return. I have said, there were forty-five grants in Lower Canada, made 
 from 1731 to 1760, and having in them (as issued here) this ambiguous clause. 
 We have seen how the King, enpleine connaissance de cause^ saw fit to deal with 
 one of them. How did he deal with the rest ? 
 
 In the Second of the Volumes laid before Parliament, at page 239, will be 
 found his Brevet of Ratification of one — that of Nouvelle Longueuil ; bearing date 
 in 1735, some months after that of the Augmentation of Two Mountains above ad- 
 verted to. It is a Brevet drawn in the style, and as nearly as may be in the words, 
 of those of somewhat earlier dates, of which I have made mention ; and like them, 
 purports to recite au long the obligations of the grantee. But it does not contain 
 this clause. Precisely as in former cases the King had left out the unambiguous 
 clause then put in by his officers, — so now, did he leave out this. 
 
 And this case is no exception to the rule. I have been able to obtain in all, 
 twelve other Brevets of Ratification of different grants, out of this total number ol 
 forty-five ; and in every one of them the case is the same. They are those of 
 Rigaud, granted in 1733 : an Augmentation of Berthier, in 1734 ; Noyan, in 1735 ; 
 the Augmentation of Lavaltrie, in 1735; D'Aillebout, in 1737; De Ramsay, m 
 1740 ; the Augmentation of Monnoir, in 1740 ; the Augmentation of Sore), in 1740 ; 
 the Augmentation of Lanoraie and Dautre, in 1740; St. Hyacinthe, in 1749 ; Bleury, 
 in 1751 ; and Sabrevois, in 1751. I have not been able to find one,— I do not, 
 cannot believe there is one, — that fails to omit the clause. 
 
 I have shown, then, — to recount the facts as they stand, from the day of the 
 date of the Arrtls of Marly,— that on that day the King certainly ratified eleven 
 grants, in terms that imposed new charges on several of the grantees, but without 
 inserting any clause at all bearing on this matter ; that in 1716, he did the same 
 thing as regarded two more grants ; that in the same year he ratified the grant of 
 Mille Isles, (issued here by his lieutenants with the clause of the fixed rate,) in 
 terms not imposing that clause on the grantee ; that in 1718, he materially relaxed 
 its stringency, when ratifying the grant of Two Mountains; that in 1729, he granted 
 Beauharnois, without it; that in 1731, he granted the Augmentation of Terrebonne, 
 known as Desplaines, not merely without any such clause, but, as one may say — 
 absolutely without clause or restriction ; that in 1732, he in effect granted Argen- 
 teuil, with no such restriction; that in 1733, he ratified the Ursulines' grant of an 
 Augmentation of St. Jean or Maskinonge, again omitting the clause of the fixed 
 rate ; that in 1735, in the case of the Augmentation of Two Mountains, he cut down 
 almost to nothing the newer ambiguous clause by that time contrived by his lieute- 
 nants, as to usual rates, and wholly struck out from the Tw^o Mountains grant of 
 1718, the stricter clause then left in that grant; that in thirteen other instances, 
 ranging from 1733 to 1751, (being all the other instances as to which I have been 
 able to find out what he did with their grants,) he uniformly omitted this ambiguous 
 clause of his Canadian servants' insertion ; and that in 1750, he issued his second 
 grant of Beauharnois, — still, as ever, omitting it. 
 
 Is there, can there be, a doubt of the fact, that neither the one clause nor the 
 other ever in truth had the Royal sanction ? Or can there be a doubt that neither 
 the Governors and Intendants here, nor yet the King and his Ministers in France, 
 ever took the Arrets of Marly, to have fixed a rate of ceits — much less to have made 
 contracts for any higher rate, illegal and null? These clauses were put in, to en- 
 able the (Governor and Intendant to exercise a power known and felt not to have 
 been given them by the ^rrcVs of Marly. Their inseriion was never sanctioned. 
 The King never meant to grant them— never did grant them-— the power they thus 
 sought to get. 
 
I 
 
 33 
 
 One other point, in reference to this correspondence of 1734-5 about the grant 
 of the Augmentation of Two Mountains, may call lor a word of remark. The Se- 
 minary, we have seen, complained of the clause requiring them to leave the 
 beaches free with the exception of such as they should require lor their own fish- 
 eries. In their letter, Messrs. Beauharnois and Hocquart had entered into some 
 explanations as to the droit de peche in Canada, as lo which I may have to speak 
 hereafter ; and had in guarded terms recommended the maintenance of this clause. 
 But what answer did the King make ? " The clause concerning the freedom of 
 *^ the beaches has been omitted (relranchee.) You have observed that this clause, 
 " according to the construction put upon it in Canada, only meant that the Sei- 
 *^ gniors should be bound to grant tneir tenants the right of fishing opposite their 
 '* lands, on condition of their paying a certain rate either in fish or in money; and 
 *' you add that the liberty of fishing, to the tenants, must be favorable to the settle- 
 ^< ment of the lands, which would be less in demand if the new tenants were de- 
 *• nied this right, by means of which they obtain a livelihood at the commencement 
 " of their clearings; but it is for this reason that it hasnot appeared necessary to 
 ** express in ihe Brevet the obligation of granting thai liberty to the tenants ; the 
 " matter, in fact, is one for private agreement between them and the Seignior 
 *' (c'est Id, en ejfet, une convp.ntion particul'wre entre eux et le Seigneur) ; and besides, 
 *^ the clause is not in the Brevet of 1718." 
 
 If proof could be wanting, as to the meaning or effect of the omission in a 
 Brevet of Ratification of a clause inserted in the first grant, — it is here. The Minis- 
 ter declares that it is not the King's will to bind the Seminary to the observance of 
 this clause. It is simply left out of the Brevet. So left out it is no longer a condi- 
 tion of the grant. 
 
 Another inference is no less obvious. So far from its having been the royal 
 policy, as late even as 1735, to tie down Seignior and Censitaire to fixed rules, 
 prohibitory of such reserves or other clauses as they might agree upon from time to 
 time, we have here the royal declaration, on the one hand that the right of fishing 
 was unquestionably one that the Habitant by all means ought to have, but at the 
 same time, on the other hand, that the King would not force the Seignior to grant it. 
 He is to be allowed freely to dispose of it ; to get whatever he can for it. The 
 relation of Seignior and Censitaire on all these matters, was to remain matter of 
 mere contract. 
 
 So much for the King's views and conduct in relation to these matters. What, 
 as to those of his Governors and Intendants here 1 
 
 Let me observe only, by the way, that this (properly speaking) is by no means 
 the real question in the case. The King's officers here, acted only in his name 
 and by his authority. It was their fashion, of course, always to call whatever they 
 did and said, the King's will. If it was not, if in any matter wherein his will was 
 signified to them one way, they acted and spoke otherwise, they at all events could 
 not thereby make the law other than what the King, as law-giver, declared and 
 made it. 
 
 Another remark is this. These functionaries not only had no power of them- 
 selves, to make the law other than what the King willed to have it ; but, moreover, 
 even when not exactly misrepresenting the royal will, they were not unapt to make 
 mistakes as to the law, public and private, — which mistakes were by no means 
 law. 
 
 For instance, in 1709, Mr. Intendant Raudot, whose plans (shortly before that 
 time submitted) for the fixing of a uniform rate of cms, and doing a great many 
 other things, were not adopted by the Crown, as we have seen — Mr Raudot, I say, 
 issued an Oidonnance, (to be found on page 67 of the Second Volume of the 
 Edits et Ordonnances,) by which he declared all Indians of the tiibe or class called 
 Panis^ and all negroes escaping to this country, to be slaves. And in 1736, M. 
 Hocquart, by another Ordonnanc.c^ (printed on page 105 of the same Volume,) de- 
 clared that such slaves could not be manumitted otherwise than by Notarial Acte. 
 Yet the Code Noir never was enregistered here ; and the law of the land did not, 
 in truth, recognize slavery. These Ordonnances never needed to be repealed ; 
 
 3 
 
34 
 
 because, though practically for a time enforced, they never really had the force of 
 law. 
 
 i^gain, as late as 1740, the same M. Hocquart, by another Ordonnance, (to be 
 found on page 177 of the Second of the Volumes lately laid before Parliament,) after 
 reciting that he had just seen a valuable pine wood in the Seigniory of Sorel, coolly 
 declared the same to be a reserve for the supply of His Majesty's navy ; forbade 
 Seignior and Censitaires from cutting any part of it under heavy penalties ; and 
 appointed a resident guardian to take care they were enforced. The title of the 
 Seigniory contained no reserve of pine timber. And the wood in question was no 
 property of the Crown. The consequences to the parties, of any infringement ofthe 
 prohibition, might have been unpleasant ; as it was probably ordained with the full 
 intention of enforcing it. But it was still not law. Its illegal enforcement by an 
 arbitrary ruler, once out ofthe question, there was no need for its repeal. 
 
 What, then, in truth, as to these Seigniorial questions, was the Jurisprudence 
 f so to speak) established by the decisions and general course ofthe Governor, Inten- 
 oants and Courts of Law in Canada ? 
 
 So far as regarded the re-union to the Crown domain, of Seigniories which the 
 grantees might fail to clear, it is obvious to remark that there was practically no 
 need of an Arret of Marly to authorize it. If, after the Ciown had granted a sei- 
 gniory, the grantee did not, by himself or others, take steps to settle on it, he might 
 fairly enough be taken not to have accepted the grant. The Crown, under such 
 circumstances, was always held to have full power to take back its unaccepted 
 gift. Long before 1711, numbers of grants were undoubtedly so resumed ; some with, 
 some without, the formality of an express i4rre^ or decree to that effect. All that 
 the first of the two Arrets of Marly did in that behalf, was to point out the precise 
 mode of procedure to be thereafter followed, for the escheat of such lands. The 
 Attorney General was to prosecute ; and the Governor and Intendant, acting conjointly 
 as the special and extraordinary tribunal alone competent to take cognizance of the 
 matter, upon due ascertainment ofthe facts, and by Ordonnances indue form, were 
 to pronounce the escheat. 
 
 The Mih'tary man, head of the Executive, and the Civilian, head ofthe Judiciary, 
 Police and Finance Departments, must concur in every such Ordonnance; or it 
 could not be made. I find trace, by the way, of but one such Ordonnance, as ever 
 really promulgated ; of date as late as 1741, for the escheat of twenty grants. 
 Further incidental evidence ofthe habitually comminatory character of these legis- 
 lative Arrets of the French King. 
 
 Again, there was no need ofthe second ofthe Arrets of Marly, to authorize the 
 re-union to the domain of a Seignior, of any lot of land not cleared and settled 
 on bv the Censitaire, Equally with the Seignior, a Censitaire not settling on his grant 
 was held not to have practically taken it. Besides, in all but the earliest grants of 
 seigniories, the Crown had systematically bound the Seignior to enfore residence 
 by the express terms of his contract with his sub-grantees. And beyond doubt, 
 clauses to that efl'ect were always put into the grants to Censitaires, with that view ; 
 and whenever appealed to (as they often were) were at all periods rigidly enough 
 enforced. All that this Arret of Marly had to do, was to provide a short and easy 
 mode of enforcing this obligation. And it did so, most decidedly. No prosecution 
 in this case by an Attorney General, or before a Governor and Iniendant who must 
 agree in judgment in order to act at all. Property speaking, no prosecution at all ; 
 for the parly complained of need not be (sometimes, was not) so much as summoned. 
 On the mere certificate ofthe Cure and Captain ofthe Cote, the Intendant— acting 
 alone, summarily and with no appeal from his decision— was to do all the justice 
 that that kind of case was held to need. 
 
 But for the other of the three procedures contemplated by these Arrets, the case 
 was diflerent. It was an extraordinary procedure. The Crown had made grants ; 
 the lands granted were the Seignior's,— and he alone, of course, could sub-grant, 
 or in any way alienate them. Here, the Crown in effect said to such Seignior— the 
 Seignior holding, the while, under the Crown's grant — you are to make a certain 
 kind of contract for the alienation of this land of yours, whenever you are called on 
 
35 
 
 BO to do ; and if you refuse, the Crown (on complaint of the refused party) will do it 
 in spite of you, and in so doing will by the way practically escheat — not your whole 
 grant — but that particular pan of it which in each such case may so be dealt with. 
 Till, by its Arret here in question, the Crown had said this, it was impossible it 
 could have done it. Bef:)re 1712, there could have been no enforcement of a des- 
 cription of control over the Seigniors, which to that date had never been so much 
 as threatened. 
 
 After 1712, then, how did the case stand? How far did successive Governors 
 and Intendants act upon this power to sub-grant in the contingency supposed ? Or 
 how far may they not have transcended it — have assumed, without right, the far 
 larger power of control sought by Raudot, as we have seen, in 1707 and 1708, but 
 never granted by the King ? 
 
 I find mention in the Second Volume of the Ed\t8 et Ordonnances (p. xxxiii) of 
 din Arret, which, I am aware, has been quoted as an instance of the exercise of 
 these larger powers. It is of date of 1713, the 29th of May, a few months only after 
 the en registration in Canada, of the Arrets of Murly ; and it is given as an Arret of 
 the Conseil Superieur de Quebec. It is thus printed : — 
 
 " Arret importing regulation, (poriant reglement,) which prohibits the Sieur 
 " Duchesnay from conceding any village lots (emplacements) in the village (Jbourg) 
 *' of Fargy de Beauport, at any higher rate of dues {d plus haul titre et redevances) 
 " than one sol of cens for each arpent, and a capon-fowl (poulei pret d chaponner) of 
 *' seigniorial rent, as on grant of land, and irredeemable; to which cens et rentes are 
 ** reduced all the concessions made to Hahitans m the said village, by the said Sieur 
 ** Duchesnay and his predecessors, Seigniois of Beauport." 
 
 But if any proposition can be clear, this must be, — that this Arret had not in 
 law any — the very slightest — sanction from, or reference to the Arrets of Marly. 
 They delegated no function or authority, to the Conseil Superieur- They contain 
 no word of village lots, nor of concessions already made to Habitans, nor of any 
 lowering of any rates fixed by contract, nor indeed of interference with contracts of 
 any sort. Nor had it, indeed, any the slightest sanction in law at all. It was as 
 mere an interference with property and tights, as plainly contrary to law, as were 
 the recognitions of slavery, and the reservation of the Sorel pine-wood, to which I a 
 few moments since referred. 
 
 Let me add, that I can find nothing to show it ever to have been drawn into 
 precedent. It stands alone. There is no other printed, in the least like it. That 
 the Intendant of that day, M. Begon, having just received the Arrets of Marly, 
 should have been inclined to stretch his authority far beyond their purview, may 
 easily be accounted for. That neither he nor his successors should have followed 
 up an Arret of this kind, by others like it — is a fact of far more weight and signi- 
 ficance.* 
 
 An Arret or rather Ordonnance, of M. Be.^on, of the 28th June, 1721, (printed 
 on page 68 of the Second Volume laid before rarliament,) may perhaps be thought 
 to bear such reference to the subject, as here to call for remark. But it is mani- 
 festly what lawyers call an -4rrei de circonstance, a. judgment in a special case, 
 and that not at all the case contemplated by the Arret of Marly. There was here 
 no refusal to concede ; on the contrary, the Seignior impleaded had long before 
 granted ^' billets de concession,'^ written promises of grant, only just not in form to 
 serve the grantees as an absolute title to their lands. The dispute was merely as 
 to the terms in which the notarial deeds of grant were to be drawn up ; the Seig- 
 nior wishing to put into them more onerous terms than the Censilaires were willing 
 to accept. The Intendant was called on to interpret and enforce a contract made — 
 the contract established by these written promises ; was not acting under the Arret 
 of Marly at all. The Defendant, with reason good, began by excepting to his 
 jurisdiction, on the double grounds, — first, that the case was one for the ordinary 
 Courts, and not for the extraordinary cognizance of the Intendant, — and secondly, 
 that the Intendant had expressed a strong opinion against him, The Intendant, 
 i ■ 
 
 ♦ 5ee, however y Postcript, 
 
 3* 
 
36 
 
 by the recitals of the Ordonnance, sets forth his own decision that the matter, as 
 coming within the scope of the Arret of Marly, was matter for decision by no other 
 Judge than himself, and that he had plainly told the Defendant that he meant to 
 enforce that Arret in the case ; and he then proceeds to fine the Defendant fifty 
 Livres — no small sum in those days — for his impertinence in daring to question 
 his, the Intendant's authority and impartiality ! Whereupon, still not without 
 reason, fearing, I suppose, a heavier fine if he should venture to plead his cause 
 any more, the Defendant Svalked out of court under protest ; and the Intendant's 
 Judgment went ea: parte. Of course, it went for the Plaintiffs. But of necessity, 
 it was not at all in terms of the Arret of Marly. The Defendant is ordered to 
 pass deeds on certain terms — the terms no doubt, on which the Intendant meant 
 to say they ought to be passed ; but failing the Defendant so to do within the 
 month of delay allowed, what was the alternative ? " This delay expired," says 
 the Judgment, "we do hereby authorize the Plaintiffs to apply to the Marquis of 
 *• Vaudreuil and to ourselves, demanding the grant of the said lands in the name 
 *' of His Majesty, upon the same charges and conditions, conformably to the said 
 *' Arret of the Conseil d^Etat of His Majesty, of the 6th July 1711 ; and this 
 ** Ordonnance shall be executed notwithstanding appeal, but without prejudice 
 <' thereto." 
 
 So that here we have of record the all obvious truth, that so far the procedure 
 had not been under the Arret of Marly. If it had been, the Intendant, so far from 
 being Judge ot it, to the exclusion of all others, could not have been the Judge of 
 it at all ; but could only have sat upon it with the Governor. The Defendant may 
 not have been right. His pretensions, as they appear to have been put forth, were 
 harsh, and probably not warranted by any proper interpretation of the biltets he had 
 given ; but certainly, his Judge was not right, and shewed none too much of the 
 Judicial spirit in dealing with the case. And—which is here the whole point — 
 the case had no real reference to the Arret of Marly. 
 
 The next case I find, at all seeming to bear on this matter, is an Ordonnance of 
 the Governor and Intendant, of the 13th of October of the same year 1721, — printed 
 on page 72 of the same Volume. — Here, those functionaries undoubtedly did in the 
 King's name grant to a certain widow Petit, a tract of land within the censive of the 
 Fief Si. Ignace belonging to the Ladies of the Hotel Dieu of Quebec. But it is 
 expressly recited that this was done — not under the Arret of Marly, — but under an 
 Arret of the Conseit d^Etat du Eoj/, of date of the 2nd of June, 1720,— a special 
 Arret evidently predicated on special circumstances of controversy between the 
 parties. By this Arret, the King in Council had declared the widow Petit to be 
 entitled to a deed of this particular land ; and had ordered the Governor and Inten- 
 dant to grant it to her, if the Ladies of the Hotel Dieu should persist in their resis- 
 tance to her claim. — They did persist. — The urgent but vain efforts of the Plaintiff 
 to bring them to a compliance, are set forth at great length ; and the grant was made 
 accordingly. Jt is the one only grant in the King's name, that has been found, — 
 made by a Governor and Intendant within the censive of a granted Seigniory. 
 There is no other printed,— I venture to say, no other of record. 
 
 It is a fact not wholly without significance, that neither of these Arrets names 
 any rate of dues. The notion of a uniform rule as to that matter, started by Raudot 
 in 1707 and 1708, is no where— save in his despatches— to be found. 
 
 A third Ordonnance of an Intendant, M. Dupuy, rendered Nov. 16, 1727, (see 
 page 180 of the same Volume) has been cited, as containing an important reference 
 to this general subject. It will be found, however, that it" has really none at all. 
 The case is one of those, to which I have already made some reference, — turning 
 wholly on the question of the rate at which debts incurred during the currency of 
 the monnaie dcs cartes were to be paid. Certain Censitaires of BelJechasse naturally 
 wanted to pay their dues, accrued and accruing under deeds which had been passed 
 during that period in certain terras, subject to the reduction of a fourth, to convert 
 them, as they claimed, info money of France. The Seignior as naturally wanted 
 to be paid without such reduction. In part of his argument, which is given at great 
 lerigth as part of the recital of the Ordonnance, he urges that of all kinds of debts. 
 Seigniorial dues ought not lightly to be taken to come within the range of the re- 
 duction in question, "because," says he, " the King having willed in order to the 
 
37 
 
 '^ more prompt settlement of the country that the Seigniors here should grant their 
 ** lands at a low price, (donnassent les teires d bas pri.v,) there is hardly any land 
 " granted at more than" so much, and much that is granted far lower, though 
 covered with wood, and so forth. Add to which, says he, pushing his argument 
 further, low as these their dues are, the Seigniors have heavy burthens to bear, 
 for all sorts of objects of public utility ; and it is absurd to suppose that the King 
 means them to form an order of noblesse here, as he surely does, burthened thus, and 
 yet subject to a cutting down of dues so much too light for such ends. But all this 
 proves nothing ; except that this gentleman saw fit to urge this argument in a case 
 where it really had no legal bearing. Good or bad, as fact or argument, it is his 
 mere statement made for a special purpose under peculiar circumstances. The 
 Judgment did not turn upon it, — and neither embodies nor at all indicates any ex- 
 pression of the Intendant's notions (supposing even them to signify) as to the 
 matter. 
 
 A fourth Ordonnance has been cited ; rendered by Mr. Hocquart on the 23rd 
 of January 1738, and which is to be found on page 170 of the same Volume ; the 
 Ordonnance in lact which was printed during the last Session of Parliament at 
 Toronto, as bearing on this question. But, like the others I have remarked upon, 
 it will be found to have really nothing to do with it. Several Habitans of Gaudar- 
 ville in this case impleaded their Seignioress, the Delle. Peuvret, demanding — not 
 a grant of lands which she had refused to make— but <* titles in due form of the 
 *' lands she had conceded them, (Hires en bonne forme des tcrres qu^elle leur a con- 
 *• cedees,) and that, upon the footing of the titles of the other lands of the said Sei- 
 "gniory." Her reply was, that she was quite willing to pass "deeds to ihe Habitans 
 " Plaintiffs, of the new lands she had granted, the same to be taken immediately 
 *' behind the first grants of the said seigniory, — and at the cetis, rentes and seignio- 
 *'' rial dues which the Intendant should please to indicate (et aux cens, rtntes 
 " et droits seigneuriaux quHl nous plaira regler.^^) Hereupon, the Plaintiffs 
 objected by their answer — and this manifestly was the sole point in serious dispute 
 between the parties — that behind the first range of grants there was a swamp, 
 and that their lots ought to be marked off in rear of it. To this the Seignioress in 
 turn made objection ; and here the Intendant had to decide. The Grand Voyer 
 visited the ground, and reported. The Intendant settled the point in favor of the 
 Seignioress's pretention ; and, so doing — and in terms of her express consent, of 
 record in the cause — directed that the grants should be " at the cens, rentes ordained 
 " by His Majesty, to wit : one sol of cens per arpent of front, and one sol of rente 
 " per arpent in superficies, and a capon or twenty sols at the choice of the said 
 " Seignioress, per arpent of front." — ** Ordained by His Majesty." How ? When? 
 dpropos of what? There is nothing to show. It may have been, that such orders 
 had been sent out, in reference to grants en censive, within ihe domain of the 
 Crown ; though the fact is at least noticeable here, that these rates are not those 
 which, as we know from other documents now published, were fixed lor grants in 
 the censive of the Crown, about the same period. To this consideration I shall 
 have to advert presently : and I pass from it therefore now, merely observing as 
 1 do so, that it is certain that at this very period the Governor and Intendant 
 were fixing variant rates of dues, not identical with this rate nor with each other, 
 for censive grants within the Crown domain ; and, that the case, as an authoritative 
 decision, amounts to nothing, because — as I have said — it purports to have been 
 on this point a mere Judgment by consent. For aught we know, the Seigniorets 
 may have gained by it, may have got higher rates than those of her older grants. 
 Nothing in the case indicates that they were lower. 
 
 One more Ordonnance I cite in this connexion ; not as making against my 
 view, (lor I have found none that do,) but as the one other, which I have found, 
 indicative of any material control exercised by an Intendant over the terms of a 
 grant d cens made by a Seignior. It is another Ordonnance of Mr. Hocquart, 
 under date of the 23rd of February, 1748, and is to be found at page 202 of the 
 same Volume. In this case, the Fabrique of Berthier impleaded the Seignioress, to 
 obtain from her a notarial deed to a lot held by them for the last thirty-eight years, 
 under a billet de concession. The Defendant declared her willingness to pass the 
 deed, but demanded to be allowed to insert in it certain clauses, — one to the effect 
 that the land, if ever alienated by the Fabrique, should become chargeable in her 
 favor with a certain rate of dues, stated by her to be that of the other lands in her 
 
 I 
 
S8 
 
 Seigniory,— and some other clauses of a kind not likely to have been contemplated 
 at the time of the granting of the biUct de concession. To these latter clauses the 
 Fabrique gave no consent; and the Intendant, rightly no doubt, disallowed them, 
 — and directed the passing of a deed that should merely stipulate for payment of 
 du es by any party acquiring from the Fabrique. The rate named in the Judgment 
 is not identical with that proposed by the Seignioress, as the rate usual in her sei- 
 gniory ; the former being partly payable in capons, and the latter in wheat ; and 
 no reason is given for the variance. Indeed, it reads as though made by inad- 
 vertence. Be this, however, as it may, so much at least is clear, that this Orclon- 
 nance, equally with the others I have been commenting on, is not a case ever so 
 remotely coming within the purview of the enactments of the Arrets of Marly. 
 
 I say more. I dare not undertake to weary this Honorable House with com- 
 ments on every Ordonnance and Arret in detail ; thus over and over again to prove 
 a negative. But this I must say, after thus remarking on these cases, — the few I 
 have found, of a tenor which has seemed to me to call for notice here,— that I have 
 most carefully studied every printed Edit^ Arret and Ordonnance laid before this 
 Honorable House in connection with this whole subject, and every other that I have 
 been able to find ; that I have arranged them all in order of date; have read and 
 re-read them all, so arranged; have made a written abstract of them all ; and, 
 though I will not say that the Edit, Arret or Ordonnance does not exist, which 
 shovvs this procedure by Habitant against Seignior, provided for by this Arret of 
 Marly, in some stray instance to have been resorted to and carried out, I will and 
 do say, that after every effort made I have not found it. I do firmly believe that it 
 is no where to be found. 
 
 And not only do I find no proof of this procedure under this Arret of Marly 
 having ever been carried out; I fail equally to find a case of the enforcement of 
 the after Arret of 1732, which prohibited all sale ol wild land, by whomsoever made, 
 under pain of nullity and escheat. Both, so far as one can see, were mere threats. 
 I will not say they were never meant for more. But that they were no more, I 
 cannot doubt. 
 
 Indeed, that this part of the first i4rre^ of Marly had Mhn into desuetude ^ is fur- 
 ther to some extent evidenced by the tenor of the Declaration of the French King, of 
 the year 1743, to be found on page 230 of the Second Volume so often quoted. By 
 that Declaration the King undertook to regulate the course to be followed by the 
 Governor and Intendant, and in pioceedings had before them, in regard to the mat- 
 ter of the granting and escheating of land. But there is not in it, nor yet in the King's 
 subsequent Declaration of 1747, (on page 142 of the Third Volume laid before 
 Parliament) explanatory of it, — any reference to this peculiar procedure (most ol all 
 requiring regulation, one would say, if then a procedure really ever taken) for the 
 quasi escheat of land part of a granted Seigniory, and its grant by the Crown to the 
 Habitant, prosecutor in the cause. It was not a procedure seriously thought about. 
 
 I would not be misunderstood. My position is not, that the Governors and In- 
 tendants let the Seigniors alone. They let no one alone. They were for managing 
 everything and everybody; for not allowing wild land to be sold by any one ; lor 
 not letting men of any class make their own bargains or deal freely about anything. 
 I dare say they interfered with Seigniors. Very likely — the Arrets of Marly not 
 coming up to their notion of the extent or kind of interference they were inclined to 
 resort to, — they interpreted them more or less to be what they were not. Some of 
 the Arrets I have remarked upon, are indicative of this sort of thing. And very 
 possibly a vague impression as to what might be done by an Intendant in any 
 given case, under color of his notions of these Arrets, or representations as to what 
 was the King's pleasure, may have had more or less of effect at one time or an- 
 other, in leading Seigniors to concede at lower rates or under less onerous charges 
 and reserves than they otherwise would have done. The same kind of considera- 
 tion, no doubt, influenced other classes of men as to other matters. But such influence 
 was no influence of law ; changed no man's tenure of his land ; affected in no way 
 the legal incidents attaching to a man's property. 
 
 And without any such influence operating to that end, it was impossible the 
 rates of concession of land should have been high. By 1663, we have seen that not 
 
39 
 
 far from three millions of arpents of the land now so held, had been granted en fief ^ 
 under those of the titles of that period which still remain in force ; and perhaps 
 twice that quantity had in all been granted under all the titles then extant. The 
 French population, to that date, is stated not to have amounted to t\renty-five hun- 
 dred souls. At a low calculation, the extent of llie grants must have averaged 
 something like ten thousand arpents for every family. In 1712, when the Arrets 
 of Marly Mrere promulgated, the grants en jief covered more than seven millions of 
 arpents, for a population Indians excluded) of hardly twenty-two thousand souls ; 
 some eighteen hundred arpents at least on the average for every family. And in 
 1760, the grants were ten millions of arpents, to a population of about fifty-nine 
 thousand ; or still, about a thousand arpents to a family. Could land bear any- 
 thing but a low price, under such circumstances ? And these figures all under- 
 state the fact. For they are given without reference to the large grants made 
 beyond the present limits of Lower Canada, and where the population bore a still 
 smaller proportion to the extent of the land granted, than it did in Lower Canada. 
 
 But low (as compared with present values) as the ruling rates always were in 
 Lower Canada during these periods, they weie never uniform, nor fixed by any law 
 or rule. 
 
 It would have been contrary to all precedent, to every notion of law anteced- 
 ently prevailing in the country, if they had been. No doubt, the doctrine will be 
 found laid down in most of the books, that the cms was in its nature a small rede- 
 rawce or due — nominal, so to speak — imposed merely in recognition of the Seignior's 
 superiority, and mainly valuable as establishing' nis right to the mutation fine, 
 known under the Custom of Paris as lods et ventes. And from this fact, some have 
 thought and spoken, as though it was of the nature of the fixed yearly Sei- 
 gniorial dues, upon land granted e7i censive^ to be low and nominal. But it is for- 
 gotten by those who draw this mistaken inference, that the doctrine I have referred 
 to is by these feudist writers laid down, only with reference to the cens^ properly so 
 called, as contra-distinguished from the rentes which also formed part — and by very 
 far the larger part — of these yearly dues. Even, however, as to the cens, in France, 
 there was no kind of uniformity ; and for the amount and character of the rentes, 
 no limit whatever can be assigned to their variations. The total amount, in France, 
 of a Seiguior's yearly dues accruing on his lands granted eri ccnsive, were as variant 
 as the caprice of local customs, and special contracts, possibly could make them ; 
 and as a general rule they were anything but low. Indeed, it has been clearly 
 established as matter of historical research, that the cms itself was not in its origin 
 a nominal due, but (as the very word, cens, census^ imports) a real and onerous 
 tribute — fixed in money and in the course of ages rendered light in aniount, by 
 reason not merely of advance in money prices, but also of the enormotis deprecia- 
 tions of the currency that for some centuries disgraced the history of France. — 
 Herve, the writer from whom I have already quoted, and the weight of whose 
 authority on these matters cannot be questioned, alter conclusively establishing 
 this historical fact, in his Fifth Volume, lays it down (on page 121) '* que toujours 
 ** le cens a ete proportionne au veritable produit de la chose accensee, lorsqu'on a fait 
 ** de veritables baux d cens ; et non pas des ventes sous le nom de baux d cens, et 
 " qu^il n^est point -par sa nature une simple redevance fictive et honorijique ; that the 
 " cens has always been proportioned to the veritable product of the estate granted 
 " d cens, when the parties have made real grants d cens, and not sales disguised 
 ** under the name, and that it is not in its nature a mere fictitious, honorific due." 
 The cens et rentes here in question, no less than the cens et rentes of old subsisting 
 in France under our Custom of Paris, bear, and ever have borne, this legal charac- 
 ter ; are as to amount and kind, whatever the parties may have agreed to make 
 them ; represent the consideration of the grant, in terms of the contract establish- 
 ing the grant. 
 
 To turn to facts. 
 
 The terms of a few grants en censive, made before 1663, are to be found in the 
 First of the Volumes laid before Parliament. In 1639, for instance, (see page 351,) 
 a piece of land close to Quebec was granted at one denier, the twelfth part of a 
 half-penny of our currency, per arpent. In 1647 (page 12) a tract of a quarter of a 
 league by a league in depth was granted at the same rate ; but with the proviso, 
 
40 
 
 that such rate per arpent was to be paid " lorsquHl sera en valmtr seulemmt, — as it 
 " shall be brought into cultivation only," — a curious passing indication of the idea 
 then entertained of the value of the twelfth part of the coin now passing as a half- 
 penny. Two years after, in 1649, (page 382) land at Three Rivers was granted at 
 the enhanced rate ol three deniers per arpent ; and in the same year (page 344) two 
 months later, other land, to be taken at Three Rivers or Quebec, was granted 
 at the further advance of six deniers per arpent. These grants, and some others 
 like them, are grants by the Company of New France, 
 
 Almost at the same date, in 1648, 1 find mention in the recitals of an Arret, 
 (on page 176 of the Second Volume of the Edits et Ordonnances,) of a grant d 
 cens by a Seignior, at the rale of twelve deniers per arpent of cleared or meadow 
 land, together with a quart of well salted eels. And it may be added, by the way, 
 that this grant (thus early made) stipulated the droit de retrait, or right of pre- 
 emption by the Seignior, in case of sale of the land by the grantee. 
 
 I was desirous to have had it in my power to lay before this House some- 
 thing like a statement of the extent of range of the variations observable at different 
 periods and in difi'erent parts of the Province ; but they are so almost infinite, that 
 I soon felt it to be quite impossible, with the very little time 1 was able to devote to 
 this particular branch ot research. A friend, to whom I applied a few days since 
 to aid me in this respect, was able to spend a very short time in an examination of a 
 limited number of old grants in the vaults of the Prothonotar}- 's Office at Montreal. 
 Taking the first in alphabetic order, of the names of the Notaries of the old lime, 
 whose minutes where there deposited — that of one Adhemar, — and striking on the 
 year 1674, as remote enough to fall within Mr. Raudot's times of innocence, he 
 examined as many of that Notary's deeds as the short time he could give to the 
 matter allowed. From their state and style of writing he was unable to examine 
 many in that time ; but all that he could examine showed an almost incredible ab- 
 sence of rule or usage, as well at that date as at others, — whether as to amount or 
 kinds of dues or as to the quantities granted, or as to the clauses and reserves 
 attached to grants. Hereafter— so soon as time shall allow — I will establish this 
 fact (for it is a certain fact) beyond the possibility of doubt, by ascertaining and 
 laying before the public the terms of a sufficient number of these all-varying deeds. 
 For the moment, I must be content to cite four ; the first four that my friend chanced 
 to examine, and of which I hold authenticated copies in my hands. They are of 
 dates falling within eight consecutive days of September, 1674; the first, being of 
 the 5th, the second, of the 12th, and the third and fourth, of the 13th, of that month ; 
 in fact, I believe them to be the four consecutive deeds of concession which it was 
 that Notary's fortune to pass in those eight days. The first, second and fourth, are 
 of grants in Batiscan ; the third is of a grant either in Batiscan or Cap de la Mag- 
 deleine. Either seigniory belonged to the Jesuit fathers ; presumably not the most 
 exacting, or irregular in procedure, of the Seigniors of the time. 
 
 The first of these grants is one of forty arpents by forty ; sixteen hundred square 
 arpents. The yearly dues are stated at thirty Livres 7'oumois, ten capons, and ten. 
 deniers (ten twelfths of a half-penny) of cens. Valuing the capons at fifteen sols 
 a-piece, the money rate per arpent is something over half a sot — something over a 
 arthing of our currency. 
 
 The second of these grants is of four arpents by an unstated depth ; the rate, one 
 sol Tournois per arpent, one capon per twenty arpents, and four deniers, (one-third 
 of a half-penny) of cens : in all— upon the same valuation of the capon — about one 
 sol and three quarters per arpent, more than treble that of the grant of the week 
 before. 
 
 The third is of two arpents by forty ; the rate, as though the parties had not 
 liked ever twice to do the same thing in the same way, or on like terms, is stated at 
 half a boisseau of wheat, two capons and two deniers of cens. 
 
 The fourth— a grant of sixty feet square near the mill of Batiscan— is for three 
 Livres Tournois, and one denier of cens j a rate of more than one sol for every foot 
 of front by sixty feet of depth. 
 
41 
 
 Quantities — amounts — rate — styles of rate — could scarcely have varied more. 
 
 Again, to take another kind of proof, and from another and later lime. In 1707 
 and J70S, wefind M. Kaudot complaininir of the extraordinary diversity everywhere 
 prevailing : sending home a table to exhibit it ; and proposing, by way of remedy 
 (see page 8 of the Fourth Volume laid before this House) the adoption of a rule of 
 universal application, of the rate of ** a sul of rente per superficial arpent, and a 
 ** capon or twenty sols at the payer's choice, per arpent of frontage." As we have 
 seen, the suggestion was not adopted. In 171G, when the subject was again under 
 review, notliing approaching to it appears to have been suggested by Mr. Begon, or 
 thought of by any one elser 
 
 Between 1734, however, and 1753, we have copies of some ten grants en cen- 
 sive, (printed in the F'irst and Fourth of the Volumes laid before Parliament,) made 
 by the Governor and Intendant for the Crown. And here, at all events, if unifor- 
 mity of rate could have been the rule any where, one would expect to find it. 
 Five of these grants, from 1734 to 1750, (Vol. 4, page 27, and Vol. 1, pages 242, 
 243, 247, 248 and 249) are at the same rate, being all grants near Detroit. This 
 new rate is one sol of cens per arpent of front, twenty sols for every twenty arpents 
 of extent, and a quarter of a minot of wheat per arpent of front by forty arpents. 
 A sixth grant at the same place, in 1753, (Vol. 1, page 252,) is made nominally at 
 the same rate, but the deptti being sixty arpents, the real rate per arpent is, so much 
 lower. A seventh — of the Isle aux Cochons, in Lake Erie — in 1752, (Vol. 1, page 
 251, is inade with no reference to this rule, at two sols of cens, four Livres of rente, 
 and a minot ol wheat, for the entire grant — being twenty arpents by half a league. 
 The eighth and ninth of these grants are ai Port St. Frederic, in 1741 and 1744, 
 (Vol. 1, pages 245 and 246,) and the rate is an advance — not inconsiderable, 
 according to the notions of those times — on that of the four grants at Detroit first 
 referred to. It is one sol of cens per arpent of front, twenty sols of re7ite per twenty 
 arpents, and halj a minot of wheat (mstead of a quarter) per forty arpents. And 
 the tenth grant of the number, at La Presentation, in 1751, (Vol. 1, page 250,) 
 being of an arpent and a half square, for convenience of a saw-mill built by the 
 grantee, is at five sols of rente, and six deniers of cens. 
 
 No observance, therefore, of a fixed rule, even in the censive of the Crown ; 
 the Governor and Intendant, granting ; and through the period presumably that of 
 the nearest approach to regularity of system ever attained under the French Gov- 
 ernment. 
 
 In truth, uniformity of rule and absolutism have very little to do with one 
 another. We have seen already that even in the four cases, betw^een 1713 and 
 1727, in which the Governors and Intendants attempted, by their fixed rate clause, 
 to enforce a rule on grantees of Seigniories, they could not bring themselves to make 
 that rule one and the same, — ^but, by prescribing three difterent depths of grants 
 in three out of the four cases, laid down in truth three different rules, for three 
 several Seigniories. 
 
 The rechals of numbers of the Ordonnances and Arrets, as we find them in the 
 Second of the Volumes laid before this Honourable House, all tend to the same 
 conclusion. Over and over, we find the Intendants taking pognizance of rates not 
 at all alike ; and constantly enforcing them, just as tlie contracts chanced to set 
 them forth. Sometimes, the Arrets clearly show more than one rate in a Seigniory. 
 In one, that occurs to me, (to be found on page 165 ot this Second Volume.) three 
 such rates are incidently referred to as co-existent in one and the same Seigniory ; 
 and this not as a matter at all extraordinary — as in truth it was not. 
 
 Further, to turn to still another description of proof. In the table on the subject, 
 printed as part of the Appendix to the Seigniorial Tenure Commissioners' Report, 
 (see pages 159 and following of the Third of the Volumes before Parliament,) are 
 stated, in all, the teims of some forty-seven grants encensive, of dates prior to 1760, 
 made in eighteen Seigniories. And these grants exhibit some forty variances of 
 rate. In one Seigniory alone, six or seven of these variances are shown ; in 
 another, five ; in several others, two, three or four. 
 
42 
 
 But to what end heap proof on proof, of a fact so certain,— so every where 
 patent on the face of every document we have, that at all refers to it ; of a fact so 
 consonant with every probability arising out of the antecedent law of the land, — 
 so certainly made known as a fact, to the Crown by its Governors; and Intendants, 
 — so certainly recognized and sanctioned by the Crown ? There can nothing be 
 proved, if this is not. 
 
 I pass to another consideration. I said, not long since, that the Seigniors, if 
 at all more controlled by the authorities than the law warranted, were at all 
 events not the only parties so controlled. But that is not all I must say. They 
 were the parties least so controlled. Why, the very obligation imposed on so 
 many of them by their deeds, was an obligation to aid in controlling the class 
 below them, — to compel that class to live on their lands, to reserve oak timber 
 for the King, and so forth. Before, as well as after the Arrets of Marly, the 
 grants made to that class were constantly escheated for failure so to settle them. — 
 The complaint of the Intendants was, that the Seigniors were only too little 
 zealous in enforcing this control. 
 
 The ArrHs of Marly threatened a penalty hard of enforcement and not 
 prac.ically enforced, against the Seignior, and for the Censitaire ; but contrived 
 the shortest and most summary mode possible — a mode constantly resorted to — 
 of enforcing its penalty against the Censitaire, and for the Seignior. 
 
 The ArrSt of 1732 pretended, — not to annul simply a Seignior's sales of 
 wild land, — but all such sales made by any one. If ever enforced, we may take 
 it for certain, that the Censitaires' sales would not have been the sales to escape 
 the forfeiture. 
 
 The Censitaires were uot then the powerful or favored class. 
 
 Even where favored, it was seldom to an extent that would be thought 
 much of, in days like ours. For example, in 1706 (I refer to page 35 of the 
 Second Volume laid before this House) Mr. Raudot was called on to interpret a 
 clause, general it would seem in the grants made by the Seminary, in their 
 Seigniory of Montreal, (and in those days, by the way, not uncommon else- 
 where,) by which that body had reserved to themselves the right to take without 
 payment any quantity of wood they pleased on their Censitaires^ land. The 
 Seminary expressly consented, as a favor, to limit this reserve, to the right of 
 cutting down for their own fire wood one arpent in every sixty, to be chosen by 
 themselves, near the clearings of the Censitaires, and for their buildings or other 
 public works any further quantity they might require. — And this offer was 
 accepted ; and by such consent of parties, Mr. Raudot pronounced accord- 
 ingly. 
 
 At all dates, we find the Intendants strictly enforcing the prohibition to fish 
 against the Habitants, unless by leave of their Seignior, from whom they had to 
 acquire the right — of course for value. The same strict enforcement was 
 uniform, of the Seigniors' right of banality, of which I shall have to speak more 
 hereafter, and by virtue of which no man was allowed to resort to any other than 
 his Seignior's grist mill. And even as to Corvees, or the obligation to involuntary 
 labor at the Seignior's requirement, notwithstanding the Ordonnance of 1716, 
 printed last year at Toronto (and to be found on page 57 of the Second Volume 
 now before this House,) under which it has been contended that all Corvees 
 were then prohibited, — and notwithstanding the dislike of them expressed to the 
 Government at home, in 1707, 171.8 and 1716 by Messrs. Raudot and Begon, — 
 not even herein was the Censitaire in fact relieved. Everywhere I find them 
 enforced. Nay, as late even as 1723, (see page 85 of the same Volume,) I find 
 an extra day of Corvee ordered by the Intendant, for all the Habitans of 
 
43 
 
 Longueuil, on the ex parte demand of the Seignior — the Censiiaires not so 
 much as summoned to make answer to the demand before judgment rendered. 
 
 And this control and these interferences were not merely resorted to, in 
 matters where the Seignior's interests may be said to have dictated them. In 
 1709, for instance, — I quote now from page xli of the Secord Volume of Edits 
 et Ordonnances, published in 1806, — Mr. Raudot, whose especial mania for 
 interference with all sorts of people and things I have so often had to notice, 
 issued his ukase, *' forbidding the Habitans of the neighborhood of Montreal to 
 " keep more than two horses or mares and one colt, as their doing so would 
 " prevent their raising horned cattle and sheep, and would lead to a scarcity of 
 " other animals." 
 
 !► 
 
 From this absurd caprice of an Intendant, I pass to a piece of serious 
 legislation by the King, as to which again there can be no mistake. In 1745, — 
 I cite from page 151 of the First Volume of the Edits et Ordonnances, published 
 in 1803, — the King by an Ordonnance forbade the Habitans throughout the 
 country, to build any house or stable, whether of stone or wood, on any piece 
 of land of less extent than an arpent and a half by from thirty to forty deep, 
 unless it were within the limits of some ^ot^ror or village declared such by the 
 Governor and Intendant ; and this, on pain of demolition of such building and 100 
 Livres of fine. And from the time of its promulgation down to 1760, that 
 Ordonnance with all its severity — a severity pressing only on the Habitant 
 class — was, as is well known, most rightly enforced. 
 
 And it did not quite come up to the ideas cherished by the functionaries of 
 the then Government, as to the extent and oppressiveness of the control that 
 ought to be brought to bear on the unfortunate class of men for whom it was 
 intended. By all means whatever, they were to be forced to abide the life of 
 risk and hardship then falling to the lot of the rural settler, — neither suffered to 
 hold only so much land as they might want, nor under any pretext to leave their 
 forest wilderness for the easier life of the town. By 1749 (see page Ixxxvii of 
 the Second Volume of Edits et Ordonnances, of 1806) an Intendant's Ordon- 
 nance, " with intent to advance the cultivation of the country, forbids the 
 " Habitans who have land in the country, from coming to settle in town, without 
 " leave of the Intendant granted in writing ; and orders all persons of the town 
 " letting houses or rooms to any whom they shall suspect to be Habitans of the 
 " country, to declare the same to the Lieutenant General of Police," — of course 
 that they be sent back, punished or unpunished, as occssion shall require. 
 
 Control ! Every one, 1 repeat, was controlled, as happily none can be now. 
 But the weight of the control pressed on the Censitaire, The Seignior in 
 comparison was free. Such as it was, moreover, that control is of the past ; to 
 all intents, as regards the law of the land, is as though it had never been. No 
 man's tenure of his property is affected by it ; neither Censitaire'^s, nor Seignior's. 
 Both hold as j»roprietors ; their rights defined and protected equally, by the law. 
 — For my clients, I am here, not to ask for a return, in any the very slightest 
 particular, towards the old system under which they were (as I have shown) the 
 comparatively favored class. I recall that past, as it was; only that I may 
 protest on their behalf against the monstrous error and injustice of any attempt 
 now to subject them (and them only) to its influence, — or rather to the in- 
 fluence of a system of arbitrary, despotic interference, ether and far worse than 
 that past ever inflicted on their predecessors, — such as may not, cannot be made 
 to affect any class whatever, where (as with us) the law alike and equally 
 protects all classes, all property, all rights. 
 
44 
 
 I proceed to another portion of my argument. I have said, that the propo- 
 sition on which alone this Bill can for an instant be defended, is the proposition, 
 that the Seigniors of Lower Canada are not truly proprietors, but trustees bound 
 to concede a* some low rate, and under few or no conditions or restrictions ; and 
 that this alleged trustee capacity of theirs, if it be the fact, must arise either from 
 something in the tenor of the antecedent law of France, as interpretative of their 
 position ; or from something done when their grants were made, or afterwards, 
 down to the cession of this country to the British Crown ; or from something done 
 since that cession. Unless I am much mistaken, I have shown, that alike the 
 tenor of the old law, the terms of their grants, the action, legislative and other- 
 wise, of the French Crown, and the whole course and character of the jurispru- 
 dence (so to speak) of the country, while under the French Crown, establish in 
 terms the contrary proposition ; prove that, to the date of the cession, they not 
 only were proprietors, but were even the proprietors who held by the higher and 
 more perfect and favored t3nure. — were in fact emphatically the proprietors of 
 the favored class. Passing now to the period which has elapsed since the ces- 
 sion of the country to the British Crown, I believe that my lurther proposition, 
 that nothing has been done since ihe cession to take from them their proprietor 
 quality, does not require much argument for its support. I shall easily show that 
 the history of this whole matter since the cession, is such, as to suffice of itself to 
 assure to them that quality, with all its incidents, were it even doubtful (as it is 
 not; how far it attached to them before. 
 
 But, before occupying myself with this part of my subject, I perhaps ought to 
 offer some remarks on a point which maybe said to suggest itself incidentally, 
 as one passes from the consideration of the French period of our history, to our 
 own. It is this ; how far what has been said and written since the cession, can 
 be suffered to affect our inferences on this matter, drawn from what we have 
 before us of all that was said and written pres'iously ; how far, in a word, the 
 expressed opinions of men of mark since the cession, can go to prove the exis- 
 tence before that date, of a state of things in Canada, different from that which 1 
 have (as I think) established, by the examination of the grants, Arrets, Ordon- 
 nances, despatches and other documents of all kinds, of date before the cession. 
 
 The truth is, that th^e tradition ,(so to speak) against which I argue, is attri- 
 butable to statements made since the cession of the country. It has grown up 
 since that period ; and it may not be uninteresting to show how it has grown 
 up ; and that it has done so in a manner and under circumstances to attach no 
 importance whatever to It. At first sight, indeed, this must seem tolerably ob- 
 vious ; for it is a maxim of law, and of common sense too, that the best evidence 
 alone is to be tiken. If it be the fact, that from the tenor of the law of France, 
 of the Seignior's grants, direct from the French King or througls his officers in the 
 colony, and the legislation and jurisprudence of the country under the French 
 Crown, one has to assign to the Seigniors of Lower Canada the quality of 
 proprietors — as I have shown it to attach to them ; if this, I say, be proved by the 
 best — the only real evidence we can obtain ; it is not necessary to show how 
 any counter-impression may or may not have since grown up. But, evident as 
 this is, I may be allowed, 1 trust, in consideration of the extent to which it has 
 latterly prevailed, to offer some observations by way of accounting for its origin 
 and progress. 
 
 Perhaps there never was a country in so peculiarly false a position with 
 respect to its traditions of its own past, as Lower Canada. On the occasion of 
 the cession, the high officers who had administered the government left the 
 country ; with them they took its confidential archives ; with them^went, too, the 
 •uperi or judicial functionaries, and a large proportion of the men of higher rank 
 
45 
 
 and better education ; leaving behind them, comparatively few who were not pf 
 the less educated class, or at any rate of the class less capable of preserving in 
 the country a correct tradition as to the spirit of its old institutions. New rulers 
 arrived in the Province, not speaking the tongue of those amongst whom they came, 
 and whom they had to govern ; wholly strangers to their laws, usages, and modes of 
 thought and feeling ; bringing with them the maxims and opinions of the nation of 
 all others the least resembling that which had first settled Canada ; not at all the men 
 to seize — or even to try to seize — the peculiarities of the law they came to super- 
 sede ; whether as to the prerogative ol the French Crown, the confusion of legis- 
 lative, judicial and executive functions pervading its whole system, the uncertain 
 and purely comminatory character habitually attaching to it, or the vast and 
 complex detail of laws and rights of property subsisting under it. 
 
 All this, I say, they were not likely to understand, or make the effort to 
 understand. 
 
 The law of England, their law, one need hardly observe, is essentially a 
 law of unwritten custom ; and most of al!, perhaps, with regard to that particular 
 description of Engli^-h real property, which answered most nearly to what they 
 liere found subsisting as land held en censive. In England, copyhold property is 
 almost entirely — perhaps I should say, is entirely and essentially — governed by 
 unwritten customs peculiar to the different manors and holdings. The very 
 term " Custom," as they found it in use here, was ateim calculated to mislead 
 them. The Custom of Paris here established, and the otlier Customs locally 
 prevalent in France, were not unwritten customs, like those of an English manor, 
 or the great, general body of unwritten custom known as the Common Law of Eng- 
 land. They were written documents, enacted by authority — Statutes, in English 
 phrase, not Customs. 
 
 Indeed, in Canada there was even less of resort to unwritten usage, as 
 regarded the terms of the holding of censive lands, than in old France. In 
 France, undoubtedly, in many cases, rates o( cens and other dues could only be 
 traced back to local unwritten usages which, as it were, supplemented the 
 known written Customs of the land. But in Canada there was no dark anti- 
 quity to peer into ; here every thing w^as new, had had its origin within a date 
 that could be reached ; every grant d cens was by an authentic instrument, the 
 precise tenor ot which could be ascertained ; or if in particular instances it hap- 
 pened that this was not the case, it was merely that the parties had tru>ted each 
 other's faith, and so entered into a contract which they might possibly have 
 ome practical difficulty in proving and enforcing to the letter ; but the terms of 
 which were yet to be ascertained and enforced in all such cases, as well as 
 might be, in common course of law. 
 
 All this, I repeat, was not calculated to lead to a very correct first impression, 
 en the part of these new rulers of this country. Inclined naturally to see in the 
 Canadian Seigniory an English Manor, and in its Censitaires a body of English 
 Ct pyholder*, it was not possible for them to avoid attaching too much weight 
 to the notion of customary rates and obligations, and too little to the terms of the 
 actual contracts. They hardly could realize how entirely in Canada the exis- 
 tence of these written laws and written contracts dispensed with— precluded, one 
 might say — reference to unwritten custom in this class of cases. 
 
 And this was not all- If they had been ever so disposed to study Canadian 
 law, — as they were not, — they would have found it hard to do so to much 
 purpose. Books of such law were not plenty to their hand ; nor of inviting bulk, 
 or style, or language. Of the model treatises on French law, to which at the 
 present day lawyers of all countries resort, by far the greater part did not then 
 
46 
 
 exist. What books there were, were the older, larger, in every sense heavier 
 volumes, of an earlier age. They v^^ere little likely to find readers in men, 
 inclined neither to fancy their language nor their law. 
 
 The Provincial records, moreover, as I have said, were in the same foreign 
 tongue, in a hand-writing not easy to decipher, imperfect, in disorder ; and 
 there were few or no persons in the country, likely much to help the authorities 
 in the attempt to fiind out what they amounted to. 
 
 Besides, the first Courts in the country, after the cession, by courtesy called 
 Courts of Law, were Military Courts, made up of soldier-judges ; and as, no 
 doubt, it is true that the lawyer is apt to be an indifferent soldier, it is no less true 
 that the soldier is apt not to De much of a lawyer. 
 
 And even this was not all. These Courts, thus set to declare and administer 
 the law of the land, were set to declare and administer they knew not what law. 
 The general impression with the new, English ruling closs, of C( urse was, that a 
 great deal of English law was to be introduced ; and it was a question that no 
 one could answer, hovs^ far French law, how far English law, how far a mixture 
 of the two in some way or other to be worked up, was to be the rule. 
 
 It was under these circumstances that an JlrrU^ the only one of the kind 
 which I find cited, as making against my clients' interests, and of which I have 
 now to speak, was rendered. I refer to the Jirrel of the 20th of April 1762, 
 printed on the last page of the Fourth of the Volumes laid before this Honorable 
 House. It purports to be taken from the Register of Arrets of the Military 
 Council of Montreal ; such Council composed of Colonel Haldimand, the Baron 
 de Munster, and Captains Prevot and Wharton ; four highlj' respectable officers 
 of Her Majesty's army, I have no doubt. And it reads thus : — 
 
 " Between the Sieur Jean Baptiste Le Due, seignior of Isle Perrot, Appel- 
 " lant from the sentence of the Militia Court {Chambre des Milices) of Pointe- 
 " Claire, of the fifteenth March last, of the one part ; — 
 
 " i\.nd Joseph Hunaut, an inhabitant of Isle Perrot aforesaid. Respondent 
 " of the other part ; — 
 
 " Having seen the sentence appealed from, by which the said Sieur Le 
 " Due is adjudged {condamne) to receive in future the rents of the land which 
 " the Respondent holds in his Seigniory at the rate of thirty sols a year and 
 <* half a minot of wheat, the Court not having the power to amend any ol the 
 " clauses contained in the deed of conce^sion executed before Maitre Lepailleur, 
 "notary, on the 5th Aug. 1718; the petition of appeal presented to this 
 " Council by the said Sieur Le Due, the Appellant, answered on the 19th 
 " March last, and notified on the 3rd inst. ; a written defence furnished by the 
 " Respondent, and the deed of concession referred to ; and having heard the 
 " parties ; — 
 
 " The Council, convinced that the clause inserted in the said deed, which 
 " binds the lessee {preneur) to pay yearly half a minot of wheat and ten sols for 
 " each arpent, is an error of the notary, ihe usual rate at which lands are granted 
 " in this country being one so[ for each arpent in superficies and half a minot of 
 " wheat for each arpent in front by twenty in depths orders that in future the 
 " rents of the land in question shall be paid at the rate of fifty-four sols in money 
 *' ?Lnd a minot and a half of wheat a-year.'' 
 
47 
 
 Now, what is this Judgment worth 1 Four gentlemen, not lawyers, reverse 
 a sentence which every lawyer must say was perfectly sound and right ; and 
 condemn a CensHaire, who by his written contract was to pay thirty sols and 
 half a minot of wheat only, to pay fifty-four sols and a minot and a half of 
 wheat ! The Court below had maintained the contract ; the Seignior, for some 
 extraordinary reason, had appealed ; and, what is more extraordinary, the 
 Court maintained the appeal, — not, be it observed, reducing the rent, but raising 
 it, so as actually to give the Seignior more than his written contract established 
 in his favor. And they did this, not on proof of circumstances, showing the 
 deed to have been wrong, as they took it to be ; but merely on the ground of the 
 supposed existence of a customary rate so fixed and invariable as of itself to 
 prove the clause of the deed an error. And this, in a deed of forty-four years 
 standing! And thDugh, as we have seen, at all time?, as well after as before 
 the time of its date, all manner of varying rates had ever prevailed — the Go- 
 vernors and Intendants themselves testifying. And though the very rate which 
 they coolly declared to be the one legal rate of " concessions in this couniry^"* 
 absolutely was not so much as one of the various rates which we know to have 
 been prevalent, in the Crown censives immediately before the cession. I have 
 shown that most of the Detroit grants of the Crown, at this period, were made 
 at a nominal cens ; with a sol of rente per arpent, and a quarter of a minot of 
 wheal for every arpent by /07/y ; some, however, fixing this same quantity of 
 wheat for every arpent by sixty ; and I have shown that there were Royal 
 grants during the same period at Fort St. Frederic, where the rate was the like 
 cens, the same sol per arpent, and the half of a minot o(w[\eat,Tper forty arpents. 
 And we have here the declaration (^par parent hese) that any rate below the yet 
 higher allowance of a half minot per twenty arpents, is so repudiated by custom, 
 that though stipulated before n^tanes forty-four years ago, a Court of law is to 
 pronounce the deed wrong and raise the rate to this new standard. 
 
 The Judgment is merely as unjust and mistaken from first to last, as its 
 authors could well have made it. 
 
 It furnishes one further proof, that in fact there was no fixed, known rate 
 of concession ; and it proves, for all matters presently in issue, nothing more. 
 
 To return, however, to the matter more immediately under consideration — 
 the question of the rise and progress of the mistaken impression which has grown 
 up, as to the existence of this supposed fixed rate, and so forth. 
 
 Till 1772, 1 am not aware of the appearence in print of any work purport- 
 ing to set forth the tenor of the old French laws and customs of Canada. There 
 was then printed in London, for Parliamentary purposes, (Parliament being then 
 on the point of discussing what became the Quebec Act of 1774,) a remarkably 
 well drawn, though short, abstract of those laws and usages, which had been 
 sent home by Governor Carleton, from a draft prepared by a committee of French 
 Canadian gentlemen. About the same time there appeared also a publication 
 by Mr. Maseres, who had been Attorney General here some years previously ; 
 and which contained, not indeed anything like a connected statement of Canadian 
 law, but several papers and documents having more or less bearing on Canadian 
 law, and as a whole, of considerable interest. The other publications of that 
 time, connected whh the discussion of the Quebec Act so far as I am aware, 
 were not of a kind to call for mention ; as they hardly, if at all, tended to throw 
 light on any point of present interest. And it was not till 3 years later, in 1775, 
 that Mr. Cugnet's well known (though now rather scarce) treatises — valuable, 
 though much too short and slight of construction — were published in this 
 country. 
 
48 
 
 The imperfection and inaccuracy of slatement which more or less irjark 
 these works, in reference to the present subject, I shall have to note presently 
 For the moment, I observe merely, that they appeared after a lapse of from 
 twelve to fifteen years after the cession of the country to the British Crown; 
 that within three years after that event the King's Declaration (of 1763) had 
 assured His Majesty's subjects, ot the introduction, as nearly as might be, of the 
 laws of England ; and that about the same time it had been ordered that the 
 granting of Crown Lands in Canada was to be in free and common soccage, 
 that is to say, under the English law. All this time, therefore, people were kept 
 in uncertainty as to the very existence of the old laws of the land ; besides that 
 they had hardly any means of ascertaining (had they wished it ever so much) 
 what those laws were. Of the Seigniors, in particular, few held even the titles 
 of their Seigniories ; and many, no doubt, had never seen them, and had no kind 
 of knowledge of their terms. To those who are not familiar with the law and 
 usages of this part of the Province, it may seem strange that people should 
 not be in the habit of keeping their own deeds. But it is well known, to those 
 who are, that such is the case. Deeds are passed, a.? matter of course, before 
 Notaries, — public functionaries, who preserve the originals, and whose certified 
 copies of such originals are always authentic, proving themselves in all Courts 
 of law, whenever produced. In the same way, copies of a Royal grant or other 
 public document, certified by the proper officer, serve every purpose of an 
 original. Thus, nothing is commoner than for persons not to keep what one 
 would call their most valuable papers ; and it is not uncommon for them to 
 become strangely ignorant of what they contain. There is even a peculiarity in 
 the position of a Seignior, that makes this habit one into which he is peculiarly 
 apt to fall ; for in all those classes of action which a Seignior ordinarily has to 
 institute in maintenance of his rights, he is under no necessity of showing his 
 title. It is enough, if he allege and show himself to be the Seignior de facto in 
 possession ot such and such a Seigniory. 
 
 Under all these circumstances, I repeat, there can be no wonder that the 
 tradition which gained ground in the popular mind, should have been a tradition 
 wide of the truth. It would rather have been strange, if the fact had been the 
 other way; for the mass of the people, threatened with the loss of their laws 
 a!id language, and apprehensive even for their faith, under the rule of strangers 
 alien to themselves in all these respects, would naturally incline to cherish too 
 favorable notions of the past ; and the more educated classes would as naturally 
 share, direct, develope and intensify this feeling. The past could not be remem- 
 bered as it was ; was painted of brighter color than the truth ; its bad forgotten, — 
 good, that it never had, attributed to it. 
 
 Till the times of the discussion of the Quebec Act, however, we have 
 nothing, to show satisfactorily, how this particular matter was dealt with, or 
 spoken of. Let us see how the writers of that time treated it. 
 
 Maseres has been spoken of, as an authority for the since current impres- 
 sion. The first document in his book (the book I have already mentioned) is a 
 draft of a Report drawn by him, when Attorney General in 1769, and proposed 
 by him for adoption by the Governor and Executive Council, — but which was 
 not by them adopted, — on "the state of the laws and the administration of 
 justice" in this Province. In the main, it is -a strongly written expose o( the 
 evils arising out ofthe then existing uncertainty as to the state of the law — as 
 between the conflicting French and English systems ; and the writer argues ably and , 
 forcibly in favor of an entirely different policy, for their removal, from that adopted 
 by the Quebec Act. All that he says on the point here under discussion, in this 
 document indeed the only passage in his book, that I find, having reference 
 to it, is the following: — « Leases," says he, (on page 21) in the course of his 
 
49 
 
 recital of the miscliiefs of the existing state of things, " have likewise been made 
 " of land near Quebec for twenty-one years by the Society of Jesuits in this 
 " Province, though by the French law they can only be made for nine years. 
 " This has been done upon a supposition that the restraints upon the power of 
 " leasing land imposed on the owners of them by the Custom of Paris, of which 
 " this is one, have no longer any legal existence. Upon the same principle 
 '^ many owners of Se-gniories, Canadians as well as Englishmen, have made 
 " grants of uncleared lands upon their Seigniories for higher quit-rents than they* 
 " were allowed to take in the time of the French Government, without regard 
 " to a rule or custom that was in force at the time of the conquest, that restrains 
 " them in this particular. And as the Seigniors transgress the French laws in 
 " this respect, upon a supposition that they are abolished or superseded by the 
 *' laws of England, so the freeholders or peasants of the Province transgress them 
 " in other instances upon the same supposition. For example, there was a law 
 " made by the King concerning the lands of this Province, ordaining that no 
 *' man should build a new dwelling house in the country (that is, out of towns or 
 <' villages) without having sixty French arpents, or about fifty English acres, of 
 *' land adjoining to it, and that if upon the death of a freeholder and the partition 
 '^ of his lands amongst his sons the share of each son came to less than the said 
 '* sixty arp?nts of land, the whole was to be sold and the money prodnced by 
 " the sale divided among the children. This was intended to prevent the children 
 " from setting themselves in a supine and indolent manner upon their little 
 " portions of land, which were not sufficient to maintainthera, and to oblige them 
 <« to set about clearing new lands (of which they had a right to demand of the 
 " Seigniors sufficient quantities at very easy quit-rents, by which means they 
 " would provide better for their own maintainance and become mere useful to 
 " the pubUc. But now this law is entirely disregarded ; and the children of the 
 " freeholders all over the Province settle upon their little portions of their father's 
 " land, of thirty, twenty, and sometimes of ten acres, and build little huts upon 
 " them, as if no such law had ever been known here ; and when they are 
 " reminded of it by their Seignior and exhorted to take and clear new tracts of 
 " land, they reply that they understand that by the English law every man may 
 " build a house upon his own land whenever he pleases, let the size be ever so 
 " small. This is an unfortunate practice, and contributes very much to the great 
 " increase of idleness, drunkenness and beggary, which is too visible in this 
 " Province." 
 
 It is obvious to remark, upon the passing reference, here made to this sup- 
 posed " rule or custom" as to quit-rents, how much more vague and slight it is 
 than the after reference to the Ordonnancc of the French King of 1745, pro- 
 hibitory of building by Habitans on lands of less size than an arpent and a half 
 by thirty or forty, of which I have already spoken. Yet even this latter law 
 is loosely and inaccurately paraphrased ; and the added sentence, relative to the 
 sale of land whenever division had to be made between the " sons " of a 
 deceased proprietor, formed no part of it, — indeed, never was the law, as it is 
 loosely staled to have been. It is manifest that this paragraph was written argu- 
 mentatively, for an end quife other than that qf precisely stating- the tenor of the 
 old French law on any of these points, indeed, with no care for such accuracy, 
 and as an inev table consequence, not accurately. Even as it stands, it fails to 
 indicate the notion of a uniform rate. And, loose as it is, it is not at all borne 
 out by facts ; by the known tenor of those documents of the antecedent 
 period, which embody the laws at which he glances. 
 
 I pass to the abstract of French Canadian law, of which also I have 
 spoken, sent to England by the Governor, and there printed in 1772. In thii 
 work is to be. found the first distinct printed mention that we find, of the Arrits 
 4 
 
50 
 
 of Marly of 1711. And it occurs (on page 25) in precisely the connection in 
 which, according to the view I have taken of this whole subject, I should expect 
 to find it ; that is to say, it occurs at that part of the work which treats of the 
 limit set by the Custom of Paris to the right of the Seignior to alienate in any 
 way portions of his ^e/, without the incurring of mutation fines in favor of his 
 Superior Lord. That limit the compilers of this work correctly state (as I have 
 already done) at the two thirds of the whole extent of the fief ; adding, still 
 correctly, that if that limit be exceeded, the party acquiring will at once hold of 
 such Superior Lord — of course on payment of the proper fine. This explained, 
 they add : — 
 
 " It is to be observed that this prohibition by the Custom to alienate more 
 " than the two-thirds, is no obstacle to concessions tending to clearance, because 
 " these are rather an amelioration than an alienation of the part of the fief, 
 " Accordingly, the Sovereign, by an Jirret of the Council of State of the 6th 
 "July, 1711, directed the Seigniors of this Province without reserve, {a ordonne 
 " aux Seigneurs dans cette Province sans aucune reserve) to concede the lands 
 " which should be demanded of them ; in default of which they were to be con- 
 " ceded by the Governor and Intendant, and reunited to the King's domain." 
 
 On page 29 of the same work, the compilers speak of the tenure en censive. 
 And here, if indeed they had known of any uniform rate, or even fixed maximum 
 of rate, for grants under that tenure, they were bound to state it. But they do no 
 such thing. All they say is this : — " c€7is, censive, or fondde terre is an annual 
 " payment which is made by the possessors of a heritage held under this charge, 
 '' to the Seigneur Censier, that is to say to the Seignior of the fief from which 
 " the heritage is held, in acknowledgement of his direct seigniory (direde ieig- 
 " neurie,) This due (redevance) consists in money, grain, fowls or other 
 articles in kind {autre espece.y^ 
 
 No hint here — none throughout the work — at any limit or restriction what- 
 
 ever. 
 
 On page 13, however, of a subsequent part of the same Volume, consisting 
 of a recital of important Arrtis, &c., the King's Ordonnance of 174 5, so often 
 mentioned, prohibitory of building.- no lots under a certain size, is of course given, 
 as an important patof ths old law. And further on, upon page 2 of the last part 
 of the Volume, and as introductory to a resume of what are printed as the Police 
 Laws (^Loix de Police) in force before 1760, occur the following remarks, 
 indicative of the importance attached to that Ordonnance as part of the past public 
 law of Canada : — 
 
 "The laws of which we here give a synopsis were generally followed, 
 " with the exception of some few articles of little importance, which were 
 " changed by later laws. It were to be wished for the general good of the Pro- 
 " vince, that government would insist on their execution. The ncm-observance 
 " of some o{ them for nine or ten years past, has akeady caused considerable 
 " harm as to the clearance of lands ; and witln ut desiring to enter into any de- 
 " tail, we can testify that the mere non-enforcement of the Jirret of the Conseil 
 " d'Etat of the 28th April, 1745, is one of the principal causes of the dearth 
 " which we have suffered for some time past. That Arret prohibited Habitants 
 " from establishing themselves on less than a arpent and a half in front by thirty 
 " or forty in depth. It was enacted because children in dividing the property 
 " of their parents established themselves, each on his portion of the sauic land, 
 " insufiicient for subsistence ; a practice hurtful alike as regarded the subsis- 
 " tence of the towns, and the clearance of the country. The former govern^ 
 
51 
 
 " ment considered this matter so important, that they caused to be demolished all 
 " houses built in opposition to this Jlrret ; notwithstanding which, nothing at 
 " present is so common as establishments of this sort." 
 
 Following this introductory notice, and printed at the head of these Loix de 
 Police, are tiie two Arrets of Marly of 1711, and the Jliret of 1732, prohibitory 
 of all sale of wild land. The compilers h^d no need to say particularly, as to 
 these, that since 1760, they had not heeri enforced. There had been no Court or 
 functionary vested with the powers of the Governor and Iniendantof the old time, 
 to enforce the first ; and no Captains of the Cote, to do their part towards carrying 
 out the summary procedure enacted by the second. And as to the third, it would 
 have been strange indeed, if under English rule wild land could have been 
 thought of by any Court or Judge or functionary, as an unsaleable commodity. 
 
 Cugnet, then, is the remaining writer of this poriod, of whom I have to 
 speak. 
 
 And the passage from his book, in relation to this matter, (pages 44 and 
 45 of the Loix de fiefs,) reads thus : — 
 
 " The rules of concession {les regies de conceder) in this Province are one 
 " sol o{ cens for each arpent of frontage, forty sols for each arpent of frontage by 
 " forty of depth in Argent Tournois, currency of France, one fat capon for 
 " each arpent of frontage, or twenty sols Tournois, at the choice and option of 
 " the Seignior, or one half minot of wheat for each arpent by the depth of forty, 
 " as seigniorial ground rent, (^de renfefonciere et 6eigneuriale)'inc]u6'wg \he other 
 " seignional rights, {compris les auires droits sei gneuriaux) ; and this in con- 
 " sequence of titles of concession that the Intendants gave in the name of the 
 " King, on the lands conceded in the King's Censive." 
 
 " There does not appear (?7 ne parait point) in the archives any Edict of 
 " the King, which fixes the seigniorial cens et rentes that the Seigniors are to im- 
 *' pose. These rules grew up by usage. {Ces regies se sont etablies par 
 " Pusage.) The King conceded thus the lands o( Habitons in his censive ; (le roy 
 " a concede ainsi les terres d^kabitans dnnssa censive;) and there will be found 
 " two judgments only of Intendants (deitx jugemens d''Intendans sevlemeni) 
 " which confirm this usage ; the one of Mr. Begon, Intendar.t, of the 18th 
 " April, 1710 ; and another of Mr. Hocqunrt, also Intendant, of the 20th July, 
 "1733. Besides, the lands are not conceded at one rate (77 c sont point con- 
 " cedees egalement.) They are in the District of Montreal at a higher price 
 "than in that of Quebec; no doubt, because the lands of Montreal are more 
 *• valuable {plus avantageuses) than those of Quebec. These two Judgments 
 " relate to lands in the District of Quebec." 
 
 t This passage, T am aware, — far as it is from really stating it, — has contri- 
 buted a good deal towards the formation of the popular belief in the existence, 
 under the French government, of some uniform or maximum rate. 
 
 I remark, however, that it bears date fifteen years after the cession of the 
 country ; and, whatever it may purport to say, can be no good evidence as to 
 what was the fact before that event, — the documents of the time itself existing, 
 and making full proof to the contrary. 
 
 But what in truth does it say ? — That the rules of concession in the Province 
 — or rather that the ruling rates of concession in the Province, (for this lat- 
 ter expression, though a less literal translation, is certainly that which belter 
 gives the meaning of the French words used,) are so and so ; and this, ap 
 
 4* 
 
52 
 
 a consequence of the rates of grant in the King's censives ; there is no edict 
 of the King imposing observance of them on the Seigniors in their grants ta 
 their Censitaires ; there are but two judgments of Intendants, confirmatory of 
 the usage prevailing in that behalf, which, moreover, was not uniform, — the 
 rates in the District of Montreal, ruling higher than those in that of Quebec 5 
 and lastly, these two judgments are as to land in the District of Quebec. 
 
 But this is in effect to say, that though there had come to be ruling or 
 prevailing rates, there was no uniformity, no fixed rule, no enacted maximum. 
 
 Let me note, further, that in giving these ruling rates, as they are here given ,^ 
 for the grants in the Crown domain, Mr. Cugnet has unfortunately not con- 
 trived to be accurate. He was evidently not aware of the extent to which 
 (as we now know, from the papers lately printed on the subject) these rates 
 taken up by the Intendants had varied, according to circumstances of place, 
 time and otherwise. He has given tw^o rates. One of these is the rate named 
 in the Ordonnance of the 23rd of January, 1738, on which I remarked some 
 time since, (page 170 of the Second of the Volumes laid before this House,) 
 and by which M. Hocquart — the Seignioress interested having fyled her consent 
 — named a rate for certain grants theretofore made by her in her Seigniory ; but 
 this, as I then stated and must now repeat, does not appear from any of the 
 printed grants of land within the Qvown censives to have been a rate ever fol- 
 lowed in any of those censives. The other is that of the two Point St. Frederic 
 grants, on which also I have remarked ; but I have shown from the documents 
 themselves, that this last rate was by no means the only rate of the period,, 
 even for Crown grants en censive ; that it was higher than those of the Detroit and 
 Lake Erie grants of the same time, — and this, notwithstanding the fact (shown 
 by Messrs. Beauharnois and Hocquari's despatch of 1734, — on Page 28 of Vol. 
 4,) that in 1734 the King's sanction had been specially asked — and presumably 
 obtained — for one of these Detroit rates. Not aware of these facts, and writing 
 with no great effort at precisian, Cugnet has fallen into error. 
 
 I say, not writing with much effort at precision. And this — apart even 
 from the mere looseness of his style, and the inaccuracy of statement which I 
 have noted — it is easy to show. 
 
 He speaks of two judgments of Intendants, as the only judgments of which 
 he is aware, tending to confirm his "usage" — so called — as regarded grants in the 
 censive noi belonging to the Crown. 
 
 One of these, he cites as a Judgment of Mr. Begon, under date of the 18th 
 April 1710. Begon became Intendant here, only in 1712. The judgment 
 referred to, must be one of the 1 8th April 1713, printed on page 40 of the 
 Second of the Volumes laid before this House. Cugnet himself did not take the 
 pains to print it among the Exiraits of Edicts &c, which form the concluding 
 part of his Volume. And I do not find that it was ever printed until now. As 
 now printed, however, it proves to be a mere Arret de circonstance, wholly 
 without bearing on this vexed question of a fixed rate. The Seignior of Eboule- 
 mens had petitioned the Intendant to reduce by one half the extent of a grant of 
 twelve arpents of frontage theretofore made by a former Seignior, to one Trem- 
 blay ; but for which a billet de concession only had been granted. The Intendant 
 did'so ; and in so doing ordered Tremblay to take a deed for the part left to him, at 
 the rate of twenty sols, and a capon or twenty sols at the choice of the Seignior 
 (in all forty soh} for each arpont of front by forty of depth, and a sol of cens 
 for the six arpents of front. Why this rate was fixed, there is nothing to show. 
 It may have been the rate stated in the original billet. It may have been the 
 rate stipulated in the deeds of the adjoining lands. It may have been the rale 
 
53 
 
 specially prayed for by the Seignior. There is no word of its being a usual rate 
 for the whole country. Besides, it positively does not answer to either of the 
 two rates styled usual, by Cugnet. So far from giving color to his notion, that 
 two rates were usual, and as such enforced on Seigniors by the Intendant, it 
 shows the precise reverse, — that the Intendant here sanctioned quite another 
 rate. It admits of remark — merely as an indication of the temper of those 
 times — that the Judgment seems to have been an exparte order, on a Seignior's 
 application ; the defendant Censitaire^ half of whose grant it took away, not 
 being stated to have appeared — or been summoned to appear. 
 
 Of the other Judgment cited, under date of the 20th July 1733, Cugnet 
 gives a short abstract, (page 6-i of his Extraits^) just long enough to show that 
 it also is no case in point. It is printed au long on page 157 of the Second 
 Volume lately laid before Parliament. In this instance, the Seignior of Portneuf 
 got an injunction against a number of his Censitaires, ordering them to take titles 
 for their lands ; but not at either of the rates mentioned in Cugnet, not yet at any 
 one of those now known to have been stipulated at the time in any of the 
 censives of the Crown, nor answering to those fixed in the case just mentioned. 
 Indeed, the command is in the alternative, so that one cannot precisely say 
 what terras were ordered. The Seignior had produced two old deeds of con- 
 cession, granted in his Seigniory ; the terms of which are not stated, though 
 it is apparent from the recital, that they embodied a clause stipulating Corvees, 
 or the performance of labor for the Seignior by the CenHtaire, and also pay- 
 ment of an eleventh of all fish caught by the Censitaire. And the injunction 
 granted on his application, against all occupants of lands in his Seigniory who 
 had not taken deeds, was this ; that they should forthwith take such deeds, 
 either on the terms of these two deeds ( Corvees and all) or else at the rate 
 of thirty sols and a capon (equivalent to fifty sols in all) per arpent by forty, 
 six deniers o^cens, and the eleventh of all the fish that they might take ; a rate 
 certainly not accordant with any one of the many I have yet had to particu- 
 larize. 
 
 Is more proof wanting to show that the tradition of a fixed or known 
 maximum rate, is not to be maintained on the authority of M. Cugnet? 
 
 Fifteen years more arc to be passed over. In 1790, we find the Seignioral 
 tenure and its proposed commutation into that of Free and Common Soccage 
 again — and this time somewhat seriously — taken up. Apropos vUh'is discussion, 
 we have several documents, printed in the Third of the Volumes laid before 
 Parliament ; a report of Mr. Solicitor General Williams, addressed to the Com- 
 mittee of the Executive Council ; a document drawn up by Mr. DeLanaudiere, 
 and laid before that body ; certain resolutions of the Council on the subject ; and 
 the dissent and reasons of dissent of Mr. Mabane, a member of the Council, from 
 those resolutions. 
 
 The first of these documents (see page 30 of the English version of this 
 Volume) refers to this matter of the ArrMs of Marly and so forth, in language 
 which has been cited as furnishing important evidence of the existence and 
 amount of this fancied fixed rate of dues. I cite the words : — 
 
 " By one of the Arrets aforementioned of the 6th July, 1711, the Grantees 
 *•' were bound to concede lands to their Subfeudatories for the usual cens et rentes 
 " et redevances, and by the Ar7'St of the 15th of March, 1732, upon non com- 
 " pliance on the part of the Royal Grantee, the Governor and Intendant were 
 "empowered and directed to concede the same on the part of the Crown to the 
 " exclusion of the Grantee, and the Rents to be payable to the Receiver 
 General*" 
 
54 
 
 Now, in this short sentence, there are two obvious inaccuracies, such as 
 one could hardly suppose that a man of high official and professional standing 
 could have made. First, there is not in the ^rret of 1711, as we have seen, 
 a word about "usual cens et rentes et redevances ;*' but only a requirement that 
 lands be granted "c titi'e de redevance,''^ enforceable in a prescribed way, and in 
 no other. The very words '^censet rentes''^ do not appear in it, any more than 
 the word "usual." Next, it is not the Arr'it of 1732, which gave the power 
 spoken of, to the Governor and Intendant j but the first Arrit of 1711. 
 
 I continue. " The Grantees are thereby also restricted from selling any 
 "Wood Lands (Jbois debout,) upon pain of Nullity of the Contractor Conces- 
 "sion, a reunion of the lands to the Royal Domain, and Restitution of the pur- 
 " chase Money to the Subfeudatory." 
 
 A loose and again inaccurate paraphrase ; as it conveys the idea that only ihe 
 grantees of the Crown, or Seigniors, were prohibited by the Arret of 1732 from 
 selling land eii bois debout ; the certain fact being, that all persons, " Seigniors 
 and other proprietors," were alike prohibited from so doing. The writer proceeds 
 — still on the same page : — 
 
 " By the roiure Tenure, the Grantor, whether the King directly, or his Grantee 
 " en fief mediately, stipulated a specific Sum (one half-penny for every acre in front 
 ** by forty acres in depth) payable to him by the roiure Grantee annually on a fixed 
 ** day, and at the Seigneur's Mansion House, for what is termed cens, evidencing 
 *' thereby that he was the Seigneur censier et fancier, or immediate Seigneur ot the 
 *' roiure Grantee, marque de la direcie Seigneurie ; a specification indispensibly 
 ** necessary to entitle the Seigneur to be paid the tods et ventcs upon every subse- 
 ** quent alienation of the Land granted, (^cens parte lods et venies), and another spe- 
 ** cific Sum (one half-penriy for every superficial Acre contained in the Grant) for 
 *' what is called rente. In the towns of Quebec and Three Rivers, the Reservation 
 " of the cens et rentes, for small lots, are variable and very low, but specifically as- 
 ** certained." 
 
 Thus, in two parentheses thrown in by the way into this one sentence, without 
 if, or but, or qualification or alternative of any kind, we have here Mr. Solicitor 
 General Williams's confession of faith in the existence of a one fixed unvarying 
 rule, first as to the cens, and next as to the rentes — for all the Seigniories in the 
 land ; the towns of Quebec and Three Rivers alone excepted. Every censive grant 
 through the country, out of Quebec and Three Rivers, alike! And at a rate, not 
 squaring with any one of all the score or so of variant rates that I have had to cite, 
 as in turn, candidates for the distinction of being the one true rate. Yet, with all 
 the certainty there is, of the existence of all these variances of rate, this loose sen- 
 tence of Mr. Solicitor General Williams's inditing — of date of 30 years after the 
 close of the period he is speaking of, has been gravely elevated into aproof of some- 
 thing else than the writer's incredible confidence and carelessness. 
 
 The page I quote from bears still further testimony to these constitutional ten- 
 dencies of its author. The next sentence reads : — 
 
 " Upon every mutation of ro^wr/? lands, the new proprietor was bound to produce 
 " his titles to the Seigneur, and in forty days after exhibiting the same, the Sei- 
 '* gneur, in cape of a mutation by sale, and even upon Donations inter vivos, from 
 *' a Collateral Branch or Stranger, was entitled to the Alienation Fine called droits 
 " de lods et ventes, (Art. 73,) which is the twelfth penny or a twelfth part of the 
 " price or value of the Land." 
 
 A donation inter vivos from a collateral branch or stranger, giving rise to lods 
 et ventes, to be calculated on the value of the land given ! Authority had need be 
 in demand, when a writer thus rash in his misuse of words, misquoting Arrets, 
 mis-stating usage, mis-reciting the very alphabet of the law, must be pressed into 
 the service. 
 
55 
 
 Of Mr. DeLanaudiere's answers laid belore the Council, and the resolutions of 
 that body, it is enough here to say that I find in them no statements at all confir- 
 matory of these peculitir views. 
 
 Mr. Mabane's Reasons of dissent contain a few words, which have been cited as 
 evidence. Among other things, he says, — see pages 23 and 24 of the French version 
 of the same Volume, — that the proposed change 'would not only be a sacrifice of the 
 ^' King's rights, but would defeat the wise intentions and beneficent effects of the 
 *' Arrets of 1711 and 173'2, and of the Declaration ot 1743. by which the Seignior is 
 '' obliged to grant to such persons as may apply lor them, for the purpose of improve- 
 '' menr, lands in concession, subject only to the rents and dues accustomed and stipu- 
 '* lated (aux rentes et droits accoutumes et stipules) and upon his refusal the (jovernor 
 '* is authorized on the part of the Crown and for its benefit, to the exclusion of the 
 " Seignior for ever, to concede the lands so applied for. By the same laws" he 
 proceeds, *' the Seigniors are forbidden, under pain of nullity and a reunion to the 
 " Crown, of the land attempted to be sold, to sell any part of their lands uncleared or 
 " en bois dtbouty dispositions of law highly favorable, to the improvement ol the 
 *• Colony," &c. 
 
 It must be admitted that Mr. Mabane was less unguarded in his use of words, 
 than Mr. Williams. His statements are far enough from being correct ; for, (as 
 I have already observed) the Declaration of 1743 contains no reference to this 
 matter of the Censiluir'S^ claim to concessions of wild land; and under the Arr t 
 of 1711, it was not the Governor, but theGovernoi and Intendant conjointly, to whom 
 in the case supposed the power to concede was given ; and by the An^H of 1732, 
 not the Seignior alone, but everyboi^y, was lorbidden to sell wild land. But at all 
 events, he treats us to no parenthetic asseition of the uniform rate theory. On 
 the contrary, from his use of the plirase '* accustomed and stipulated,^' one would 
 rather infer that the notorious fact of the variety of the rates stipulated, was present 
 to his recollection as he wrote. 
 
 Nearly four years later in date, we come to another document of considerable 
 importance in relation to this matter. A number of Hahitans of Longueuil appear 
 to have petitioned the House, complaining of certain conduct on the part ol their 
 Seignior. The petition itself is not printed ; so that I can only state its purport 
 from the abstract given of it in the Attorney General's report upon it — the document 
 I am about to remark upon. It is there said of it : 
 
 " The petition brings forward questions for public discussion, upon which 
 ** there are various opinions. The second clause states that Mr. Grant, in open 
 " defiance of the ancient ordinances of the Kings of France, has arbitrarily increased 
 " the rents of three lots ot land which he has conceded to his tenants since he be- 
 " came their Seignior ; and the remaining clauses complain that he has increased 
 *' the redUus paid by the petitioners for lands conceded by his predecessors," 
 
 This petition was referred by the Governor to the then Attorney General (Mr. 
 Monk) for report ; and his report on it, under date of the 27th of February 1794, to 
 be found on page 93 of the English version of the Third of the Volumes laid before 
 this House, is another of the documents which have been cited as confirmatory of 
 the opinion I am combating. Is it really so ? 
 
 • In the first place, it states the tenor of the first ^!Zrre^ of Marly, in quite 
 other terms than those of Mr. Williams's report of 1790. " The Royal Edict" 
 says the Attorney General, "of the 6th of July 1711 enacted, that every 
 " Seignior should concede, upon application, such quantities of ungranted lands 
 '' as any inhabitant should ask, within the limits of his Seigniory, d Hire dere- 
 ^^ devance, et sans exiger d^eux aucune somme d^ argent ; and in case of the 
 *• Seignior's refusal, the same edict authorized the Governor and Intendant to 
 " grant the land required, aux memes droits imposes sur les autres terres conce- 
 ^^ dees dans les dites Seigneuries.^^ A paraphrase, copying verbatim the essen- 
 tial words of the jlrrSt ; and precisely accordant with the view I have been 
 maintaining, in regard to it. 
 
56 
 The report proceeds: — 
 
 " There does not however appear among the records of the Province, any 
 " Edict of the French King fixing the exact quanium of the redifus or cens et 
 " rentes seigneuriales ; but prior to the conquest, a rule taken from the conces- 
 •' sions made by the Crown, where the King was the immediate Seignicr, was 
 " much followed. By this rule, to render any one estimate applicable to the 
 '^ whole province, the cens is fixed at one sol argent tournois, or a half penny, 
 " for every acre in breadth by forty in depth, and one capon or ten pence 
 " sterling at the Seignior's option, or half a bushel of wheat where ihc rediivs 
 " was made in grain. 
 
 " There are two Judgments, one of the Intendant Begon of the 18th April, 
 « 1710, and the other of the Intendant Hocquart of the 20th July 1733, in. 
 '' some degree confirming this customary regulation but it must however be 
 *' remarked, that this rule was not absolutely general, and that the rediius in 
 " the district of Montreal has always been greater than that of the district of 
 *' Quebec. It was perhaps impossible, from difference of soil, situation and 
 "climate; and upon the whole, I do not think that any general rent was by 
 " law established, and I conceive the Edict of 6th July 1711 to be the only 
 " guide for determining the question." 
 
 Still, of course, other than confirmatory of the high authority of Mr. Wil- 
 liams. And evidently, I might add, taken from the statement on the same 
 matter, of Cugnet's book, on which I have already commented. Even to the 
 misprint of the date of the Begon Judgment of 1713, the two agree. Cugnet's 
 two citations cannot possibly have been verified. Had they been so, they could 
 not have been reproduced. 
 
 But this matters comparatively little. The important point of the case, is 
 the fact, that Mr. Monk, (as Cugnet had done before him) admits distinctly the 
 non-existence of any authoritatively fixed rate, before 1760. 
 
 I continue to cite the words of the report : — 
 
 " This Edict clearly shows an intention, in the Legislature of the day, to 
 " compel the Seigniors to grant their unconceded lands to the inhabitants, and 
 " in my apprehension to grant them at the customary rent in their respective 
 " Seigniories, because that is declared to be the standard by which the Intendant, 
 " who conceded in case of the Seignior's refusal, was directed to estimate the 
 " legal reditus which he was authorized to establish. 
 
 " I am therefore of opinion, that the present Seigniors of Canada have in no 
 " instance a right to exact from their tenants more than the accustomary 
 '* reditus fixed by their predecessors before the conquest ; and that the legal re- 
 ^'ditusm each Seigniory is a matter of fact established by the evidence of 
 *' ancient deeds of concession. And if it was then in the tenant's power to 
 " compel his lord to grant his land to him as he had granted it to others, 
 " through the intervention of the Court of the Intendant, these terms were and 
 " still are his legal right ; the edict of the 6th July 1711 is still in force. 
 
 " As to the clauses of the petition complaining that the Seignior has arbi- 
 " trarily increased the reditus paid for lands formerly granted to the petitioners, 
 " I am clearly of opinion, that in all cases of leases or concessions already made 
 " by the Seigniors to their tenants, the reditus fixed by the deeds of concession 
 " can never be increased under any pretence whatsoever. But it is a question 
 
57 
 
 " whether the petitioners have at present a legal mode of redress against the 
 " innovations of vvliich they complain. 
 
 " As the law stood bef< re the conquest, the tenant, in cases similar to the 
 " present, would have found an immediate remedy upon application to the Court 
 " of the Intendant ; and I am of oj)inion that the present Courts of ibe Province 
 " are adequate to the purpose of affording them effectual relief." 
 
 Not having the petition to refer to, one caniiot be sure as to the precise 
 intent of this opinion, on some points. Part, at least, of the complaint, seems to 
 have been, that the Seignior was exacting from parties who held under conces- 
 sions made by his predecessors, more than the terms of their grants warranted. 
 As to that charge (the one last reported on in the extract I have read) there 
 can be no question of the correctness of the opinion given, that such exaction 
 was illegal, and that the parties had their remedy. As to the other part of the 
 complaint, it is not so clear what it was, or what redress the petition ners had 
 asked, or even how far the Attorney General meant to go in the expression of 
 his opinion in the premises. 
 
 His words may be twisted into meaning — I believe they have been cited as 
 though they did mean — that even from tenants who had agreed to pay a higher 
 rate than was common before the conquest, such higher rate could not be 
 recovered. But I cannot pay the writer so poor a compliment, as to believe him 
 to have so meant them. His argument amounts to this. No one rate was ever 
 fixed. The JlrrH of Marly alone, which fixed none, nmst guide us. I infer 
 {^omW. an intention on the part of the legislator to enable parties to compel 
 Seigniors to grant at the rates theretofore usual in their respective Seigniories. 
 And I therefore think that a Seignior has no right to stand out for a higher rate, 
 when parties call on him for grants. — But, suppose a party not to have stood out 
 uj»on this supposed right, but to have made his bargain at such higher rate, does 
 it follow that the bargain is to be just so far set aside as to relief him from such 
 rate, and no further, — no one pretending that any law ever said it should be ? 
 One has no right to say that any lawyer can have meant to advance so 
 monstrous a doctrine,— unless, indeed, his words were too clear (as here they are 
 not) to make it possible to put any other sense upon them. 
 
 Giving the expressions here used, then, the other meaning; understanding 
 them to go no further than to advance the doctrine, that people could enforce 
 concession at some customary rate, to be established according to circumstances 
 for each case; a single remark will suffice. Not to repeat the considerations of 
 fact, which I have already urged, as to the constant recognitions under the 
 French Government, of all sorts (»f rates as prevailing everywhere, the commina- 
 tory character of this JlrrH of Marly, the manifest expressions of the King's 
 will, subsequently to its promulgation, that no uniformity of rate or contract was 
 to be enforced under it, and so forth, — considerations of fact, decisive of the 
 whole question, in the sense adverse to the conclusions I combat, — I observe 
 that it proceeds on a further mistaken impression, into which, after correctly 
 reciting the ArrH of Marly, it is most unaccountable that the writer should have 
 fallen, as to the procedure which alone that Arrit indicated and allowed. " ]f\i 
 " was in the tenant's power," says the report, *' to compel his lord to grant his 
 " land to him as he had granted it to others, through the intervention of the 
 " Cowt of the Intendant, these terms were, and still are, his legal right." It 
 never was. The ArrM was express. The sole recourse was to Governor and 
 Intendant together. That recourse, if ever practically enforced or available, had, 
 at all events, ceased to exist, from the day on which there had ceased to be a 
 Governor and Intendant in t^ie land, to give effect to it. 
 
58 
 
 But to return from this digression. I have remarked on every authority I 
 have been able to find, that either has been, or (so far as my researches go) 
 can be cited in support of this tradition, during these first thirty-four years of 
 the history of Canada alter its cession to Great Britain. And to what do 
 they amount? An absurd, unjust, ih'egal sentence passed by four military 
 men in 1762 ; a careless, passing phrase or two of Maseres, in 1769 ; some 
 loose, inaccurate sentences, and references to Ariits^ by Cugnet, in 1775; 
 some extravagant mistakes made in 1790 j an Attorney General's opinion, 
 not countenancing them, in 1794. 
 
 A few years later, in 1803 and 1806, we reach the time of the printing of 
 the two well-known volumes of our Edits et Ordonnances. And from that 
 time, there have been before the public, in print, in those volumes, most of the 
 successive comminatory Arrets of the French King as to the escheating of 
 Seigniories, on which I have had occasion to remark ; and the Arrets of Marly, 
 with the untrue recital on the face ot one of them, that the taking of money for 
 land by Seigniors, was " entirely contrary to the clauses of the titles of their 
 " concessions, whereby they are permitted only to concede lands subject to dues 
 " (a Hire de redevancef ; but there has not been before the public, that context 
 — so to speak — of the ArrUs^ title deeds, and other documents of the period, 
 which I have had the advantage of being here able to bring to bear upon their 
 interpretation. In the absence of the proof these furnish, it could not but be, 
 that such recitals as these two volumes contain, should have tended most power- 
 fully to confirm the impression, that the old state of the law and jurisprudence 
 of the Province, as to all these matters, was anything but what it really was. 
 
 Still following down the history of the Province ; considering the long feuds 
 of its contending parties; the natural influences on the feelings, views and lan- 
 guage of what was inevitably the popular party in the land, — of the passing of the 
 Imperial Trade and Tenures' Acts, in 1822 and 1825 ; the fact, undoubted, that 
 this whole matter had for long years before been, and has ever since been, and 
 is, a leading matter of political faith and profession ; that it could not but be a 
 pleasant style of address to the many debtors of the few — to become a popular 
 doctrine with the many — that their indebtedness to the few ought not to be, and 
 of right was not, what the few held it, — that lands held by the few were not pro- 
 perly theirs, but were held under a sort of trust for them, the many; and that, 
 with all these influences at work, the full half of the very facts of the case lay 
 buried, so to speak ; I cannot affect to wonder at the fact — which I admit — of 
 the gradual settling down of the minds of most men, into the impression against 
 which I have now to contend ; an impression, however, be it noted well, not at 
 all consonant with the tenor, during all this period, of the jurisprudence of the 
 Courts of Law, — the course of policy of the Executive and Legislature, — the 
 inferences fairly to be drawn as to the effect, in equity and law, of this period of 
 our history, upon this question. 
 
 We come, then, to the further proposition I have laid down ; that since 
 the cession of this country to the British Crown, there has nothing occurred to 
 abate my clients rights, or in any wise unfavorably affect their position, such as 
 I have established it, as proprietors not holding under any kind of trust ; that on 
 the contrary, the jurisprudence of the Courts of Law, the action of the Exe- 
 cutive and Legislative powers, — all that for these ninety-three years past has 
 g< ne to make up the history of this matter, — has gone to strengthen this their 
 position; would suffice to assure them in it now, were there even a doubt (as there 
 is not) how far it attached to them before. 
 
 One thing must be tolerably apparent. By the cession, an instant end was 
 put, for the time at any rate, to that whole system of interference and control 
 
59 
 
 which had previously pressed, somewhat (it may be) upon the Seignior, but most 
 surely far more heavily upon the Censitaire. Both had become, to use the brief 
 phrase of the capitulation, "subjects of the King." They could no longer be so 
 controlled, either as to person or as to property. The inalienable right at Common 
 Law, the major prerogative (so to speak) of the British subject, had settled that 
 point, beyond question or appeal. The Habitant oH ihe cotes de Montreal could 
 no longer be told by an Intendant how many horses, mares, or colts, he might be 
 allowed lokeej); nor the Habitant o{ Longueuil be condemned unheard, to the 
 rendering of corvees not stipulated by his deed ; nor the Habitant of whatever 
 parish be forbidden to choose a town life, without written leave. Prevented 
 under the Ordonnance of \l^>b, from building house or stable on land of any less 
 width or depth than suited the pleasure of the French King, he became free to 
 build what and where he pleased. Thej^ne/ of 1732, making the sale of wild 
 land, whether by him or by the Seignior, illegal, on pain of nullity and escheat, — 
 if indeed it ever was, for any practical purpose, law, — ceased so to be. The 
 provision of the one Arril of Marly, under which a Governor and Intendant 
 might grant a Seignior's land, in the King's name, to the complaining applicant 
 whom the Seignior should have refused, — if, again, ever matter of practically 
 enforced law, — also ceased so to be ; for (besides that it was repugnant to prin- 
 ciple,) there was no Court or body through whom it could be put in force. And 
 the corresponding provision of the other ^rrit of Marly, under which the Hnbi- 
 tanVs land could be — and had been — escheated on mere certificate, and without 
 his being heard or summoned, also lapsed ; for (besides that it, too, was in dero- 
 gation of common right) there had ceased to exist in the land, the machinery to 
 give effect to it 
 
 And the passing of the Quebec Act in 1774«, made no change in this be- 
 half. These powers of control, exorbitant of the Common Public Law, could 
 not be, were not, in whole or part revived. 
 
 Indeed, as regards this peculiar procedure for the granting by the Crown, 
 of a Seignior's land, the case is most especially clear. For, though the Courts of 
 Common Pleas, at first, and afterwards the Courts of King's Bench, were invested 
 with the judicial powers formerly held by the Intendant. they never were in- 
 vested, — no Court or body ever was in vested, — with any power, judicial or other- 
 wise, that before the cession had been held by the Governor and Intendant jointly. 
 
 I am aware that thia omission has been spoken of, as a sort of oversight. 
 But I apprehend that, duly considered, it will be apparent enough that it was no 
 such thing. This power, on the Crown's behalf to grant what was not the 
 Crown's to grant, was no judicial power. There was involved in its exercise, the 
 ^Masi-adjudicalion (at private suit) of an implied escheat to the Crown, and the 
 executive act besides, of a grant by the Crown to such party, ofthelandso 
 impliedly escheated. A King of France might vest such powers in his Governor 
 and Intendant, the two officers who together represented all his own despotism, 
 executive and judicial. But a King of England could not. Under English rule, 
 escheat to the Crown is a matter for the Crown alone to prosecute, and is a 
 direct — nptan implied— process. Under English rule, a grant by the Crown is 
 a grant of what the Crown holds as its own ; and made by executive authority, — 
 not through a Court of law, by a proceeding to which the Crown, is no party. 
 The whole procedure is one alien to every principle of our public law. No 
 Court or Judge, no Governor and Court or Judge together, could have been set 
 give eflTect to it. 
 
 IT 
 
 And yet, unless by means of this procedure, or else, under the ArrH of 
 1732, which declared all sale of wild land (by whomsoever made) to be null, — 
 an enactment, which I believe no one has the courage to call law, — there was 
 
 I 
 
60 
 
 no means ever by any law provided, io give effect to the Fren(^h King's will, 
 signified in 1711, that the Seigniors of Canada — proprietors holding their land 
 under no such condition — should not exact money for it while uncleared, but 
 should grant it ^^ dtitre dercdevance^^^ by tenure of? Wevarice, for the conside- 
 ration of dues infuturo. 
 
 Nor is this negative evidence, all. I turn to the positive jurisprudence of 
 our Courts. 
 
 One thing is notorious. The standing complaint of all the complainers 
 against what are called the exactions or usurpations of Seigniors, has ever been 
 of the seigniorial character of that jurisprudence. It has passed into a by-word 
 with them, that all our Courts have constantly been seigniorial ; and many, no 
 doubt, have been led into the mistake of fancying that the Judges, as a general 
 rule, must have been Seigniors, or in some way interested on the Seigniors' 
 side. 
 
 Secure in this notoriety of the general course of the decisions of our Courts, 
 I shall content myself with a passing remark or two, as to a very few only, of 
 the most leading cases. 
 
 Six are specially referred to, and the proceedings in them given more or 
 less fully, in the Appendix to the Report of the Commissioners of inquiry into 
 the Seigniorial Tenure, printed in 1843. 
 
 The first in order of time, is that of Johnson vs. Mutchins ; adjudged 
 upon in 1818 by the Court of Queen's Bench for the District of Montreal, and 
 afterwards in 1821 by the Court of Appeals. (See pages 88 and following, of 
 the English — 110 and followng, of the French version, of the Third of the 
 Volumeb laid before this House.) 
 
 The Plaintiff in this case was the Seignior of Argenteuil. A previous 
 Seignior had some time before granted a block of some thousands of acres of wild 
 land in that Seigniory, by a deed, on the face of which it was set forth that he 
 received for such grant a large amount of ready money ; and by which he 
 stipulated the extremely small yearly quit-rent of one half penny for every forty 
 acres, adding a release of the grantee from all future claim on his part, to lods et 
 ventes, or the enforcement of any other seigniorial burthens. Some years after, 
 the Seigniory was seized and sold under judicial process. And the new Seignior 
 sued the holder of a part of the land thus granted ; seeking to recover from him 
 some years' arrears of cens et rentes, calculated not at the rate of a half penny 
 per forty acres, but at that of three bushels of wheat and five shillings currency 
 per ninety acres — the rate paid for most of the neighbouring lands ; together 
 with the fines for not having shown his deeds, and all lods et ventes or mutation 
 fines accrued on the several sales of the property which had taken place. The 
 Defendant, of course, set up the title, under which the original grantee from 
 the Plaintiff's predecessor, held ; and said, your predecessor agreed, when he 
 so granted to my predecessor, that in consideration of the large sum of money 
 paid, the quit-rent on this grant was to be the small quit-rent stipulated by the 
 deed ; and that lods et ventes were never to accrue upon it. I therefore, can be 
 made to pay no higher yearly rent, and am liable for no lods et ventes. The 
 Seignior in reply pleaded, that the act of the former Seignior was illegal ; that he 
 could not so alienate his land as to bar lods et ventes upon it, or even prevent 
 its being charged with the usual and proper rate o^cens ct rentes. It was proved 
 in the cause, that (irrespective of the particular grant of this tract) the lands in 
 the seigniory were by no means all granted at one rate ; but that the rate above 
 mentioned was that charged on most of them. The Court condemned the 
 
61 
 
 Defendant to pay his arrears of cens et rentes at the ruling rate thus estahlished, 
 and the fines for not having exhibited his title-deeds j implying thereby, of 
 course, that they held him liable to pay lods et ventes. 
 
 The Judgment was appealed from, and in 1821 reversed, in so far only as 
 related to this rate of cens cf rentes; the Court of Appeals holding the quit-rent 
 stipulated to be, by operation of law, cens, recognitive of the tenure of the land 
 en censive of the seigniory, and necessarily importing liability to lods et ventes 
 on all sales of the land ; but not admitting of alteration in amount, from that borne 
 on the face of the deed creating it. 
 
 The sale of this wild land by the former Seignior (for, a sale, and at a cash 
 pricp., it was) was thus no nulliiy ; as the Arret of 1732, if law, would have made 
 it. Tho quit-rent stipulated was the only rate of cenSy that could be recovered ; and 
 could not be altered, to bring it into conlormity with any ruling or common rate. 
 The whole restriction on the Seignior's power to alienate, held to obtain, was this : 
 that, alienating encensive — giving to his vendee the quality of Censitaire, he could 
 not (by private contract with such Censitaire) prevent the ordinary legal incidents 
 ot the tenure en censive from attaching to the grant, — could not free the land from 
 liability towards the domain of his eeigniory, for lods et ventes. — Had the alienation, 
 indeed', been held not to be a grant en censive, — it must in law have been taken 
 ior a sale of a part of the ^^/ or seigniory; the acquirer, a co-vassal with the 
 vendor ; the sale, and all alter sales, of the land, chargeable with the heavier 
 mutation fine of the quint ^ or fifth part of the price, to the Crown as the Seignior 
 Dominant, or Superior Lord. 
 
 The second of the cases in question, is thatof Duehesnay vs. Hamilton, decided 
 by the Court of Queen's Bench lor the District of Quebec, in 1826, and to be found 
 on pages 84 and following, of the French — 106 and following, ofthe English 
 version, of the same Volume. 
 
 It was an action- instituted by an Advocate not very likely to be absurdly wrong 
 in his view ofthe law that governed it — a gentleman more, perhaps, than almost 
 any other of his day, the admitted ornament and honor ofthe profession in Lower 
 Canada — the late Mr. Chief Justice Vallieres. The action was against certain 
 parties holding land in the Seigniory of Fossambault ; to require them to pass a 
 deed acknowledging such lands to be charged with censet rentes at the rate oifour 
 pence currency per ar-pcnt, as well as with other seigniorial burdens, as the neigh- 
 l^ouring lands were; and to pay threee years' arrears of such cens et rentes. The 
 Defendant pleaded, that when he acquired the land, no such rent was stipulated or 
 mentioned as charged on it, by the Plaintiff, or by the party of vi^hom the land was 
 bought ; that he had ever been and was willing to take a deed of the land at the 
 rate of one so/ per arpent, being that at which a great part of the lands in the 
 Seigniory had been granted ; and that the rate demanded, of four pence currency, 
 waa a higher rate than by law could be demanded ; a Seignior having by law no 
 right to grant at a rate higher than that of the old rates m his Seigniory. But he 
 was expressly condemned to take title as demanded ; and to pay the three years' 
 i rears in question, at the rate demanded ; being double the rate fixed by the Bill 
 !ow before this HonoialDle House, as the maximum rate legally chargeable by a 
 Seignior — the rate to which all higher rates ever stipulated are to be cut down. 
 The Court of Queen's Bench so fixed this very rate, by a Judgment never appealed 
 from. Can it be, that it is proposed, by Act of Parliament, to cut it down, for all 
 time to come, by one half? 
 
 The third case I have to notice, is that of McCallum vs. (jrey, adjudicated upon 
 by the Court of Queen's Bench for the District of Montreal, in 1828. This action 
 was brought by the owner of one of the Seigniories within the township of Sher- 
 rington, held by a peculiar tenure to be presently adverted to ; and was a Petitory 
 Action, to turn out the Defendant from the occupation of a lot of land in the Seig- 
 niory. It was a hard action — not to say a very hard one. The fact was pleaded 
 and clearly ghown in evidence, that the Plaintiff, having reason to apprehend that 
 his lands might be taken possession of by parties claimant under adverse title, had 
 •a efiect induced the Defendant to go upon the lot in question upon a clear under- 
 
 I 
 
62 
 
 standing, that he should have the land on easy terms. This, of itself, was a decisive 
 consideration in the case ; for if one man get another to go and settle on his land 
 with a promise to let him have the land on favorable terms, he cannot afterwards, 
 by a common Petitory Action, turn him out of it. The Judgment, accordingly, was 
 for ihe Defendant ; but in giving reasons (or their Judgment, the Court, after reciting 
 this sufficient reason, went on with what may be called an obitei' dictum — a further 
 reason, not necessary to their conclusion, to the effect that moreover, ^"^ every sub- 
 *'ject of His Majesty is entitled to demand, and obtain, from every or any Seignior 
 *' holding waste and ungranted /ands in his Seigniory , a lot or concession of a portion 
 "of said waste and ungranted lands, to be by every such subject, his heirs and 
 " assigns, held and possessed as his and their own proper estate, for ever, upon the 
 " condition of cultivating and improving the same, and of paying and allowing to 
 *' every such Seignior tiie reasonable, usual and ordinary rents, dues, profits and 
 ** acknowledgments, which, by the feudal tenure in force in this Province, are paid, 
 '* made and allowed to such Seigniors by their tenants or Censitairts, for all such 
 " and similar lots of land ;" by reason ot all which, they dismissed the Plaintiff's 
 Action. 
 
 Now, it is to be observed, that even admitting this considerant ever so unre- 
 servedly, it is far from affirming (on the contrary, it does not so much as counten- 
 ance) the notion of a fixed or maximum rate for the whole country,— much less, the 
 notion that contracts entered into for higher rates, are not thereafter to be enforced, 
 as made. But it was, besides, a considerant, not necessary as a reason for the 
 Judgment given ; and it is an obvious and universally admitted rule, that reasoning 
 not necessary to a Judgment, is not to be held part of such Judgment. Indeed, as 
 regards this particular case, whatever may or may n<'t be the law as to any other 
 Seigniory, it is at least certain that the Seigniory in this Judgment referred to, 
 was held by such a tenure as to be out of the purview of this supposed rule of law. 
 
 This case is referred to, in the report of the Seigniorial Tenure Commissioners, 
 as the •* single instance," so lar as they were aware, in which a Seignior had been 
 unsuccessful in contest against a Censitaire^ upon any point connected with this 
 matter of the rights of Seignior and Censifaire under i\e Arrets oi' Marly. I am 
 myself aware of no other ol like tenor. Though I am of course aware, that the 
 doctrine incidentally laid down in it, and on which I have remarked, has often been 
 spoken of, as though it had the support of a settled jurisprudence to the same 
 etfect. 
 
 The next case to be noted is that of Guichaud vs. Jones, also decided by the 
 Court of King's Bench for the District of Montreal, in 1828, and lobe found fully 
 reported on pages 93 and following, of the French, — and 116 and following, of the 
 English version of the same Volume. The action was one ol a large number of the 
 same date and tenor, ail involving the same considerations, decided alike, and 
 submitted to without appeal by the Defendants. The Seigniory involved was that 
 of St. Armand, one of those granted in the later days of the French regime. About 
 the year 1796, the then Seignior of that ^p/ granted nearly if not quite the whole of 
 its extent, in lots, to a numbei of grantees, by deeds very much of the character of 
 the deed 1 remarked upon some moments ago in speaking of the case of Johnson vs. 
 Hutchins. They were called deeds of sale and concession ; and set forth the 
 engagement of the vendee to pay ihe price agreed upon with interest, by a day 
 fixed, as also a small quit-rent for ever. And it was added, that the Seignior 
 released the lands from lods ct ventes, and every other claim, seigniorial or oUier- 
 wise, forever, such quit-rent alone excepted. The action in question was against 
 the holder of one of these lots, for this unpaid purchase money, with a long arrear 
 of interest, and the arrears of this quit rent. The question of the exigibility o^loda 
 et ventes was not raised ; the Plaintiffs setting- out the terms of their predecessor's 
 grant in that behalf, and not pretending by their Declaration that any hds et ventes 
 had accrued, or indeed that the land had ever been sold since the date of its original 
 grant lo the Defendant's predecessor. 
 
 The case was keenly contested by Counsel of the very highest standing and 
 ability at the Bar ; Mr. Ogden and the late Mr. Buchanan, for the Plaintiffs ; the 
 late Mr. Walker for the Defendant. The latter by his pleadings most distinctly 
 and precisely raised the whole question of the force and validity of the Arrets of 
 
63 
 
 nil and 1732 ; averring that the late Seignior, the grantor of the land, was bound 
 by Jaw to have granted d titre de redevance only, and without exacting or recei- 
 ving any lurther price ; and that being wild land, he could not by law Bell it, 
 under pain of nullity of the contract, and escheat of the land. And the evidence 
 consisted entirely of the Admissions of the Plaintiffs, fyled (so as precisely to meet 
 the whole question of Jaw raised) in these words : — 
 
 a 
 
 " Firstly. — That the seigniory of Saint- Armand, in the Declaration of the 
 Plaintiffs in tliis cause mentioned, was granted and conceded under seigniorial 
 tenure, a titre de fief et seigneurie, by the most Christian King, whilst the Pro- 
 vince ot Lower Canada was subject to his authority, and previously to the 
 conquest of the said Province by Great Britain. 
 
 " Secondly. — That by virtue of the said original grant or concession^ the said 
 fief and seigniory of Saint-Armand, from the conquest of the said Provmce, and 
 until after the day of the date of the deed specially mentioned and declared on, 
 in the Declaration of the said Plaintifls in this cause fyled, was, and continues 
 to be, held by seigniorial tenure, d titre de fief el seigneuric, of our Lord the 
 King, according to the Jaws, usages and customs in force in the said Province 
 before and at the time of the conquest thereof as aforesaid. 
 
 " Thirdly. — That on the day of the date of the said deed in the Declaration of 
 ** the said Plaintiffs recited and set forth, the late Honorable Thomas Dunn therein, 
 ** and also in the said Declaration named, was Seignior, proprietor, and in posses- 
 " sion of the said /</ and seigniory of Saint-Armand. 
 
 ** Fourthly. — That the tract of land mentioned and described as well in the 
 *' said deed as in the Declaration of the said Plaintiffs in this cause fyled, was at 
 " the time of the execution thereof waste, uncultivated and unconceded land, terres 
 " en hois debout et non concedees, of the said fief and seigniory of St. Arm.and." 
 
 That is to say, the admission of the Plaintiffs was, that every averment of 
 fact urged by the Defendant was truly urged,— that the land when sold by the 
 former Seignior was wild land, never before granted, within his Seigniory, — such 
 Seigniory then being held according to the old Jaw of the land, as subsisting under 
 the French regime. And their position was, that the sale was nevertheless not 
 DuJl in Jaw, nor the land forfeited ; but that the purchase money with interest, and 
 the arrears of the quit-rent, were due and exigible. — The Court maintained that 
 pretension ; thus afhrming in express terms, that contracts by a Seignior for the 
 sale of wiJd Jand in his Seigniory were valid, and must be enforced, — the Arrets in 
 question, notwithstanding. 
 
 Two other cases remain ; to be found in the same Volume ; the one that of 
 Holland vs. Molleur— (see pages 101 and following, of the French, 115 and 
 following of the EngJish version.) conducted lor the Plaintiff by two learned 
 gentlemen, both of whom are now Judges of the Superior C- urt, and defended by 
 Counsel then and still holding the highest position at the Bar ; the other, that of 
 HamiJton vs. Lamoureux, (see pages 119 and fojlowing of the French, and l43and 
 foJJowing of the EngJish version,) conducted for the Plaintiff, by one of the 
 gentlemen just referred to, now a Judge of the Superior Court, and defended by 
 another gentJeman, also now a Judge of high rank and standing on the same 
 Bench, and by another gentleman still at the Bar, and enjoying there the highest 
 reputation for ability. Both actions were ably and keenly fought ; to rec«^ver rents 
 very considerably higher than the rate which is assumed by the Bili now before 
 this Honorable House, as the higliest that admits of Jegal sanction or excuse. The 
 pleadings in both causes were put into every form, in which the skill of the ablest 
 Counsel could slate them ; with the view, in one shape or other, to make out the 
 illegality of these rates and obtain for the Defendants a reduction of them, as exces- 
 sive, in the former of the two cases, it is true, it was in answer set out and shown 
 that the land had been granted and re-acquired by the Seignior, before its conces- 
 sion at the rate impeached. But in the latter case, (which, by the way, was one 
 of a large number of like cases brought about the same time by the same Plaintiffs, 
 defended on lilte ground, and decided in the same terms,) there was no such 
 answer ; and the question of law came fairly before the Court, as raised by the 
 
64 
 
 Pleas. It was clearly proved, however, as in all such cases it can be, that all 
 manner of rates have at all times prevailed, not only as between different Seignio- 
 ries, but even as between different grants in the same Seigniory. And, notwith- 
 standing all that could be said and cited for the Defendants (and nothing that could 
 be done in their behalf by professional skill and zeal was left undone) it was held 
 by the Court that the high rates sued for were perfectly legal rates ; and they 
 were enforced accordingly. 
 
 One more case I must notice in this connexion, as of later date, — decided only 
 last year by the Superior Court sitting in the District of Quebec ; the case of 
 Langlois vs. Martel, to be found on the 30th and following pages of the Second 
 Volume of Lower Canada Reports. 
 
 The concession (in the Seigniory of Bourg Louis) had here been made at the 
 rate per arpentof one aol or half-penny of Seigniorial ccns et rente properly so called, 
 and of course irredeemable, and of seven sols or three pence half-penny more of 
 rente constituee, or redeemable rent not bearing a Seigniorial character, — in all four 
 pence per arpent — double the maximum proposed to be declaratorily enacted by 
 this Bill. Some years of arrears due under this grant were sued for. The De- 
 fendant again raised, by a variety of pleadings, the question of the legality of a 
 grant on such terms. The highest talent of the Quebec Bar was engaged on either 
 side ; and the cause, equally with those before remarked upon, was unquestionably 
 contested as keenly and ably as cause possibly could be. Yet, — and notwithstand- 
 ing the fact that the stipulation in this instance of part of the rate agreed on, in the 
 form of a rente constituee^ made the case one rather more advantageous for the 
 defence than that of Hamilton vs. Laraoureux, where the whole rent was Seignio- 
 rial, — the Court again affirmed the antecedent jurisprudence ; maintained the con- 
 tract, as valid ; held the Censitaire, as of right, to the bargain he had made. 
 
 And these cases that 1 have been citing, in which the validity of sales and 
 grants (at whatever rate) of wild land by Seigniors, have been thus maintained 
 after the fullest argument, are no isolated cases, against which counter decisions 
 can be cited, or that fail of support from the constant practice of every Court. All 
 manner of varieties of rates of concession, all manner of varieties of concession 
 deeds, as to quantity of land, rate, mode of payment, charges, — every thing that 
 can form part of such deeds, — have been put in suit, times without number. Never 
 Court or Judge, administering the law under sanction of the judicial oath, set aside 
 or altered one such deed, in respect of any quantity, or rate, or mode of payment, 
 or charge, by the parties thereto covenanted. 
 
 I know it has been said, that these decisions have not been carried to find 
 appeal, and therefore are not to be regarded as constituting a settled jurisprudence, 
 decisive of the tenor of the law. But whose fault has it been, that they were not 
 appealed ? Not, certainly, the Seigniors' ; for they were the successful parties who 
 could not appeal. The reason is soon given. The Court at Montreal was of the 
 same opinion as the Court at Quebec ; the Jwdgraents were all of the same cha- 
 racter; the Judges all of the same mind. Appeal, so far as the Courts in Canada 
 were in question, was plainly useless; and with every Judge here pronouncing in 
 this matter of local law, favorably to the Seignior??' rights, it was felt to^be idle to 
 hope for a reversal of their decision by the Privy Council. Able, zealous, deter- 
 mined men, fought the battle, and fought it well'; but having lost it, they kncAV that 
 it was lost. The time has long gone by, v/hen the Censitaires as a class were too 
 poor to appeal. They are as well the richer — by very far the richer — as the larger 
 and more, powerful class. They have failed to carry' out their contest in appeal, 
 because their Counsel told them— because they knew and felt — that appeal was 
 hopeless ; that the Judges of last resort, sitting in Her Majesty's Privy Council, 
 would interpret and administer the law, as the Courts here had done. 
 
 I know, too, that what is called judge-made law has often been held up to po- 
 pular suspicion ; and those whose habit has been to reflect on our Courts of Law 
 as unduly seigniorial in their jurisprudence, have not failed to derive a certain degree 
 of advantage from the feeling so raised. But there is really here no question of 
 judge-made law, at all. No text of law, ho principle of jurisprudence, adverse to 
 this rule of decision, can be cited. Unvaryingly ahered to, and well known so to 
 
65 
 
 be, no text of law ever was enacted to reverse it. If such a rule be not truly law, 
 who shall say what is ? 
 
 In truth, it is precisely in these decisions of the Courts of Law, that the tenor 
 of the law is for practical purposes to be read. Men do not study the statute book ; 
 they do not ask Counsel — Uounsel, even, do not content themselves with asking — 
 what is in the statute book ? They ask what is the law? That is to say, what is 
 it practically ? How do the Courts hold it ? What will they enforce ? What will 
 they set aside ? If for ninety years and more, Courts have gone on enforcing all 
 contracts of a particular kind, — if in a number of important cases, ably argued and 
 solemnly adjudged, they have adhered to one and the same style of decision, — by 
 what right dare Counsel tell his client that such decision is not law? It argues a 
 most dangerous state of the public mind, when men lightly run down what the 
 Courts of Law have for ages held as law. The land whose Judges are distrusted, 
 where men fear or hope that any day may witness a reversal of the Judgments of 
 a century, is a land where all property and all contracts must be unsafe; where 
 man cannot trust man. 
 
 But, besides all that the change of public law consequent on the cession of 
 this county to the Crown of Great Britain, has done, and all that this jurisprudence 
 since has done, to confirm and strengthen my clients' position, there is yet more. 
 
 Grants of Seigniories have been made since the cession, by the British Crown ; 
 affected, equally with those of earlier date, by this Bill. 
 
 Two of these grants are of Murray Bay and Mount Murray: of the same date 
 (1762) and on the same terms. The former is to be found on page 94 of the English 
 version of the Third Report of the Special Committee named by the then House of 
 Assembly, on the Seigniorial Tenure, in 1851. It is by Governor Murray ; and 
 after acknowledging the *' faithful services" of the grantee, an officer of His Ma- 
 jesiy^s Army, runs thus : — 
 
 '* I do hereby give, grant and concede unto the said Captain John Nairne, his 
 *' heirs, executors and adminisirators for ever, all that extent of land lying on the 
 '* north side of the River St. Lawrence from the Cap mix Oyes, limit of the Parish 
 *' of Eboulemens, to the South side of the river oi Malbaie and for three leagues 
 ** back, to be known hereafter, at the special request of said Captain John Nairne, 
 ** by the name of Murray's Bay ; firmly to hold the same to himself, his heirs, 
 *' executors and administrators for ever, or until His Majesty's pleasure is further 
 " known, for and in consideration of the possessor's paying liege homage to His 
 " Majesty, his heirs and successors, at His Castle of St. Lewis in Quebec; on each 
 ** mutation of property, and by way of acknowledgment a piece of gold of the 
 *' value often shillings, with one year's rent of the domain reserved, as customary 
 *' in this country, together -with the Woods and Rivers, or other appurtenances 
 " within the said extent ; right of fishing and fowling on the f-ame therein 
 " included, without hindrance or molestation ; all kinds of traffic with the Indians 
 ** of the back country, hereby specially excepted." 
 
 Do or do not these terms convey the idea of an absolute property, to be vested in 
 the grantee ? — Was it, or was it not, present to the mind of the grantor, (writing 
 arid thinking- the King's English,) that the party to whom this grant was thus made, 
 with no reservation except that of trade with the Indians, was thereby constituted 
 a proprietor in fee simple, holding for himself and no other ? vVas it understood 
 by grantor or grantee, or any one, that nothing was conveyed, but some sort of 
 trust to sub-grant on some terms or other — neither trust nor terms of anv sort being 
 hinted at? 
 
 The Mount Murray grant, I have said, was of the same date and tenor, though 
 not printed. I have, however, an authentic copy of the Letters Patent of 1815, 
 under the Great Soal of the Province, by which it was confirmed — still m the same 
 terms. And I understand, though I liave not seen the Letters Patent, that the 
 grant of Murray Bay also was confirmed at the same time and by an Instrument of 
 the like tenor. 
 
66 
 
 The right of the Crown to grant thus absolutely in 1762, and to ratify such grants 
 in 1815, I presume will be admitted to be clear ; equally with this language of 
 the grants themselves ; unless, indeed, law and language be held alike inscrutable. 
 
 These two grants were made in virtue of the undoubted Prerogative of the 
 BritishCrown. I come now to some others of later date, made in most peculiar 
 terms, under peculiar circumstances, and in literal execution of a Provincial Statute. 
 
 The Seigniory of LaSalle, in what is now the County of Huntingdon, was many 
 years ago held by a gentleman who seems to have either not known or not cared 
 where the rear line of his Seigniory ran ; as he granted d cens to number of 
 Habitans a large extent of the wild lands of the Crown lying beyond it. Some 
 time after, in 1809, these Crown lands were erected into the Township of Sherring- 
 ton, and granted to certain applicants, by Letters Patent, in Free and Common 
 Soccage. And in process of time, as was to be expected, a frightful number of 
 ruits came to be instituted by these grantees of the Crown, to eject from their 
 holdings the grantees of the Seignior of LaSalle. Parliamentary inquiry, result- 
 ing in a compromise, was the result. To give effect to that compromise, the Act 
 3rd Geo. IV, chapter 14, was passed in 1823 ; providing, that the grantees of the 
 Crown might relinquish their grants to the Crown, and take them back en franc aleu 
 noble^ on most peculiar terms. They were to maintain in their respective posses- 
 sions, all parties bona fide holding under title from the Seignior of La Salle, on the 
 terms of the various grants of that Seignior, themselves receiving all dues, accrued 
 and to accrue, upon such grants ; they were to be indemnified by Government for 
 the loss lo result to themselves from this obligation ; and, with regard to all that 
 part of their lands not occupied by tenants of La Salle, they were to hold the same 
 with the fullest right to do anything nnd everything they pleased with it. The 
 words of the 3rd Section of the Act are : — 
 
 *' And be it further enacted by the authority aforiesaid, that when the said 
 '* Letters Patent" (meaning the Letters Patent originally granting in Free and 
 Common Soccage) *• shall have been in part revoked in manner afbiesaid, it shall 
 *^ and may be lawful for the Governor, Lieutenant Governor or Person adminis- 
 '' tering the Government, by other Letters Patent under the Great Seal of this 
 *^ Province, to regrant to the said grantees or their legal representatives, in Fkf 
 " and Seigniory, en franc aleu, witli all Seigniorial rights, privileges and preroga- 
 " tivcs,as well the said lands occupied as aforesaid by the said persons claiming 
 " as tenants of La Salle, or of the said adjoining Seigniories, save and except the 
 ** Clergj/" Reserves comprised therein, as any other lands within the said Town- 
 *' ship, in respect of which the said Letters Patent shall have been revoked and 
 *< annulled in the manner hereinbefore mentioned ; with power to the said grantees 
 " or to their legal representatives lespectively, without limitation or restriction 
 " to alienate or dispose of such lands or any part thereof, either freely or absolutely, 
 *' or for such rents, reservations and acknowledgements, and on such terras and 
 *' conditions, or in such other manner as they shall think proper; together with 
 *Mhe right of exacting, recovering, and receiving all such, cens et rentes, lods et 
 ** ventes, redexiances and other seigniorial dues and rights whatever, which shall or 
 ** may have accrued or become payable since the said 22nd day of February, 1809, 
 *' by the said persons claiming as 'Tenants of La Salle under and by virtue of the 
 ** deeds of grants, titres de concession, or by virtue of any other right or title, by or 
 " under which they have held or now hold such lands." 
 
 Under this Act, and by Letters Patent reciting its very words, which explicitly 
 set forth the grantee's right to do what he will with so much of the land granted ; 
 to })art wilhii en franc aleu, or en fief, or en roture, at any price, and on any terms, 
 ■ — the whole grant to be free of Qnint or Seigniorial burthen towards the Crown, — 
 four Seignioiies were granted, those of Thwaite, St. James, St. George, and St. 
 JNormand. Even since the Union, an Augmentation has been granted on the same 
 terms, to one of these Seigniories, (if not, as I believe, to all,) consisting of the 
 Clergy Reserve Lots in and near it ; Government thereby again granting land 
 seigniorally, with this power expressly recognized on the grantee's part, not merely 
 to hold the land absolutely as his own property, but even to determine 
 without reserve or limitation, the tenure under which it should be held, if he should 
 see fit to alienate it. The Bill before this Honorable House treats even the holders 
 
67 
 
 of these Seigniories, as something short of proprietors. With as good reason, 
 perhaps, as others. 
 
 And it has not been with reference to these Sherrington seigniories only, that 
 legislation has recognized Seigniors in Canada as proprietors holding for them- 
 selves, and under no trust limitation. 
 
 The Trade and Tenures' Acts, the work of Imperial legislation, not popular 
 (I admit) in Lower Canada, but yet law and law, which Provincial legislation can- 
 not constitutionally touch, — have declared every Seignior to be entitled, upon mere 
 payment to the Crown, of the value of its pecuniary rights over his Seigniory, to 
 obtain commutation, as between the Crown and himself, of the tenure of his Sei- 
 gniory. This done, he becomes at once, under those Acts, owner of his ungranted 
 lands, free from the burthens of their former tenure. But this legislation of neces- 
 sity implies that those burthens were to the Crown alone — the burthens from which 
 the Seignior so buys relief; that they did not comprehend any burthen, in the nature 
 of an unexpressed trust, — from which he has not to free himself, of the exislence of 
 which the law breathes no hint. 
 
 i 
 
 And I have further, and Provincial legislation to cite ; still in the same sense. 
 
 I turn to an Ordinance, of an exceptional Legislature, I admit, but yet of a 
 Legislature of Lower Canada; an Ordinance, too, which this Bill proposes to res- 
 pect and maintain unaltered; the Ordinance of the 3rd and 4th Vict, chapter 30, for 
 the incorporation of the Seminary of Montreal, and the voluntaiy gradual commuta- 
 tion of the tenure in iis seigniories. 
 
 By that Ordinance, that Legislature recognized and treated the seigniories of 
 the Seminary as their absolute property, held by and for themselves, — that is to 
 say, for the mere spiritual and charitable ends of their corporate life, — and not as 
 having been granted to them under any trust for sub-concession to other parties, in 
 any particular way, or on any particular terms. I admit, of course, that terms of 
 commutation were imposed upon them, which under ordinary circumstances would 
 have been objectionable ; as not securing to them the true value of the rights to be 
 commuted. But this was done in an enactment which for the tiret time admitted 
 the corporate character of their body ; a character till then disputed, and held open 
 to grave doubt ; and the gentlemen of the Seminary, to assure to themselves that 
 character, were willing and consented to submit to those terms, as a fair compro- 
 mise. This consideration alone can justify the terms of the commutation, which 
 by this Ordinance were imposed upon them. But, aside from this, in what light 
 does this Ordinance regard the Seminary? As proprietors in their own right, or as 
 trustees for the sub-granting of land to Censitaires ? I quote the words of the 2nd 
 section : — 
 
 " The right and title of the said Ecclesiastics of the Seminary of St. Sulpice of 
 " Montreal, in and to all and singular the said fiefs and Seigniories of the Island 
 " of Montreal, — of the Lake of Two Mountains, — and of St. Sulpice, — and their se- 
 ** veral dependencies, — and in and to all Seigniorial and feudal rights, privileges, 
 " dues and duties arising out of and from the same, — and in and to all and every the 
 " domains, lands, reservations, buildings, tenements and hereditaments, within the 
 " said several ^?/s and Seigniories, now held and possessed by them as proprietors 
 ** thereof, — and also in and to all monies, debts, nypotheques and other real securi- 
 '* ties, arrears of lods et veides, cens et rentes, and other Seigniorial dues and duties, 
 *^ payable or performable by reason of lands holden by Censitaires, tenants and 
 " others, in the said several ^^/s and Seigniories, • * * shall be and are hereby 
 " confirmed and declared good, valid and effectual inlaw; and the Corporation 
 ** hereby constituted shall and may have, hold and possess the same as proprietor 
 ** thereof, as fully, in the same manner and to the same extent" as the Seminary 
 of St. Sulpice in Paris, or that at Montreal, or either or both of them did or might 
 have done before 1759, — ** and to and for the purposes, objects and intents follow- 
 ** ing, that is to say: — the cure of souls within the parish of Montreal, — the mission 
 " of the Lake of the Two Mountains for the instruction and spiritual care of the 
 *'_ Algonquin and Iroquois Indians, — the support of the Petit Seminaire or Collige at 
 Ireal, — the support of schools for children within the Parish of Montreal,— the 
 
 6* 
 
68 
 
 " support of the poor, invalids and orphans, — the sufficient support and maintenance 
 *' of the membeis of the Corporation, its officers and servants,— and the support of 
 " such other religious, charitable and educational institutions as may, from time to 
 '* time, be approved and sanctioned by the Governor, &c., — and to and for no other 
 " objects, purposes and intents whatever." 
 
 The next section of the Ordinance, in the same spirit, goes on to provide, 
 <* that all and singular the said fiefs and Seigniories * ♦ * and all and every 
 " the said domains, lands, buildings, messuages, tenements and hereditaments, 
 <* seigniorial dues and duties, monies, debts, hypotlicques, real securities, arrears of 
 *« lods et ventes, cens et rentes, and other seigniorial dues, goods, chattels and move- 
 ** able property whatsoever, shall be, and the same are hereby vested in the said 
 ** Corporation * * * as the true and lawful owners and proprietors of the same,, 
 " and of every part and parcel thereof, to the only use, benefit and behoof of the 
 " said Seminary or Corporation and their successors for ever, for the purposes 
 " aforesaid," &c. 
 
 There is here — there is in this Ordinance — no trace of the notion, that these 
 Seigniories were held under trust for settlement, or subject to limitation as to the 
 terms on which land within them could legally be sub-granted,— or as to the re- 
 serves, of land or otherwise, that could legally be made. The corporate capacity 
 of the Seminary admitted, all followed. The Seigniories, and whatever formed 
 part of, or belonged to Uiem, — domains, reserves, wild land, — all, were absolutely 
 its own ; its past contracts touching them, all binding ; its power to contract freely 
 as to them thereafter, beyond question. 
 
 Admitted, that as the Trade and Tenures' Acts were not of Provincial framing, 
 so also this enactment was not of the work of an ordinarily constituted Provincial 
 Legislature. But its work was law ; was never by any legislative or other public 
 Body in the Land, complained of, as wrong in this behalf ; is treated by this very 
 Bill as right, and by all means to be respected. It ought to be respected ; but 
 while respecting the rights it recognizes, the Legislature cannot ignore the fact that 
 there are other rights besides, which must be respected equally. 
 
 Nor can this further fact be ignored ; that legislation of the Parliament of this 
 Province of Canada has confirmed the principle npon which the legislation of the 
 Imperial Parliament and Special Council has thus proceeded. I speak of the Acts 
 of the 8th Vict, chapter 42, passed in 1845, and 12th Vict, chapter 49, passed in 
 1849, for the facilitating of voluntary commutation of the tenure in Seigniories not 
 held by the Crown ; and by the Act of the lOlh and 11th Vict, chapter 111, passed 
 in 1847, with the same object, for the Seigniories of the Crown. By these ActSj^ 
 Seignior and Cmsitaire are empowered • to commute the tenure as they please ; 
 to agree as to the price, and then freely carry out their bargain. None of these 
 Acts hint at any legal limitation of their right, in time past, to contract as they saw 
 fit — whether as to rate of cens et rentes, clauses of reserve, or otherwise. They are 
 to take their contracts as they stand, — as the Courts interpret and enforce them, — 
 and are to treat and deal freely with each other, for the redemption of their rights 
 so established, or for the conversion of the contracts themselves into contracts of a 
 character better suited to the agp. The parties are men ; who have outgrown the 
 tutor-authority— so to speak — of French Governors and Intendants; who may part 
 with or acquire land, wild or cleared, by any kind of contract known to the law, 
 and on any terms they please ; who may even change the legal incidents of its 
 tenure (matter though these are, in great part at least, of public law) when and on 
 what terms they please. 
 
 And it is not to be forgotten, that this legislation by two successive Parliaments 
 of Canada, was legislation subsequent to, and (in effect) the complement of, the 
 Tenures' commutation enactments of the Imperial Parliament ; legislation in their 
 spirit; confirmatory of their view as to the relative position and rights of all the 
 parties interested, — Crown, Seigniors and CensUaires ; legislation, which throughout 
 took for granted all that absolute proprietary right, on the part of my clients, for 
 which I here contend; which nowhere implied, ever so slightly, that trustee 
 limitation of their rights, which nevertheless must be proved in order to the defence 
 of this Bill. 
 
69 
 
 In one word, from the cession in 1760 to this day, by the Common Public Law 
 of the British Empire, the jurisprudence of the Courts, the acts of the Crown, and 
 the legislation of Parliament, Imperial and Provincial, the whole system of inter- 
 ference and control, of the French regime^ alike as to Seignior and Censitaire, has 
 been set aside and reversed. The antagonist principle has been unreservedly 
 adopted and carried out. Men have been free to make and modify their contracts 
 as they chose ; to sell, buy, grant, take — deal in all things with their own — as they 
 might see fit. Such is the spirit of all English law and legislation, whether as to 
 lands held in free and common soccage, or en franc aim, or under the obligations 
 of the Jief or censive tenures. There can be no exception to the rules, that make 
 property and contract sacred, and men free to hold the one, to frame and give efiect 
 to the other. 
 
 Now, under all these circumstances of this present case ; doing one's best to put 
 out of view that state of the old law ot France on which I have insisted as the true 
 view to be taken of it, — the tenor and character of the old grants under which my 
 clients (those of them who hold under French grants) own their property, — the true 
 intent and meaning of all that the King of France ever did, legislatively or other- 
 wise, in respect of those grants and of their rights under them, — and the jurispru- 
 dence of his Courts, as fixing all that down to the cession of the country was on 
 these matters law ; I say, putting all these things, to the utmost of one's power, out 
 of sight ; doing our utmost to believe that there once was a time, when — the 
 country being governed by the French King — Seigniors were not proprietors in 
 their own right, but trustees, bound to grant their lands on some terms or other, as 
 to rate, reserves, or what not ; need I ask, whether the state of things so supposed 
 to have then prevailed, is the state of things that prevails now, or towards which in 
 this latter half ot the nineteenth century we here are to go back ? Is it that, in 
 which this Legislature can declare this country to be, or towards which it can try 
 to carry it back a single step ? Have these ninety-three years' prescription done 
 nothing ? Ninety-three years, during which all kinds of property have passed from 
 hand to hand, under all kinds of contracts, and been affected in all kinds of ways 
 known to the law, under security of the great under-lying maxim of all English 
 law, written or unwritten, that none shall be disseized of his freehold, or abated of 
 any his claims of property or right, otherwise than in due course of law. Under 
 the English Crown, and by English iaw, it was never possible to pretend to put 
 into force either the Arrtl of 1711, or that of 1732, of both of which it has lately 
 been the fashion to talk so much and so inaccurately. Attempted in the case of 
 Guichaud vs. Jones, the attempt failed ; and at alf events no one, I feel well 
 assured, will venture to contend that a sale of wild land is null, or that wild land 
 sold is escheated de plein droit to Her Majesty. Yet, if it is not, — if the Arret of 
 1732 is efiete, how has that of 1711 escaped the like fate ? For ninety-three years, 
 there has been no machinery to effect either of the two escheats which it threate- 
 ned ; the absolute escheat of the unsettled Seigniory ; or the ^wasi-escheat and 
 aftergrant of the land, part of a Seigniory, which a Seignior might have refused to 
 grant. During all this period, the jurisprudence of all our Courts has maintained 
 all contracts, whether of sale or grant, and at whatever rates. During all this 
 period, the action of the Crown and Legislature has harmonized with that of the 
 Courts ; has in no wise contravened their decisions ; on the contrary, has lent all 
 countenance to them ; has constantly affirmed their principle, the principle of all 
 British law and rule, — that in a British country men are men, not cnildren, — their 
 property their own, not their rulers',— their contracts, what they choose to make 
 them, not what their rulers may choose to wish to have them made. Can it be, 
 that now, — with all men's position, properties and rights, determined by these 
 ninety-three years' uniformity of precedent and rule, — it is seriously proposed to go 
 back towards a fancied former state of things ; to take up, not the system which 
 prevailed in 1711, in its entirety, but merely a small fraction of it, or rather what is 
 wrongly said to have been such fraction of it, — for (as I have shown) this control- 
 ling of the Seignior was in those days more of a pretence than of a reality ; to 
 take up just so much of it as shall press hardly, unjustly, on a small class of the 
 community, whose misfortune it is that they have few votes and little influence ; 
 and in so doing, to ignore all that far larger and more real remainder of the system, 
 which in its day pressed on the larger class, and the revival of which against that 
 larger class, insanity itself would Hardly dream of ? 
 
70 
 
 It were to destroy the whole fabric of the relations between man and man. 
 All the relations in life of the proprietor, Seignior or Censitaire, are predicated on 
 the value of his rights of property, as the jurisprudence of the Courts, aulhoritaiive- 
 ly establishing the law of the land, has determined and guaranteed them. I gave 
 60 much for my Seigniory, borrowed so much on the security of it, bound myself in 
 all manner of ways to all manner of obligations by reason of its being mine ; be- 
 cause I knew that the revenue arising from the cens et rentes and dues stipulated to 
 accrue on the granted part oCit, amounted to so much ; because I knew that the 
 average of its lods et vcnies came to so much more ; because I knew that it con- 
 tained such and such an extent of ungranted land, of certain value, and from 
 which I could derive so much by lumbering on it, cultivating it, or otherwise ; 
 because I knew that its mills yielded so much revenue, and had (attached to them) 
 such and such rights ; because 1 knew that this and that water^ power within it, 
 which otherwise might have competed with those I myself should use, were not 
 the property of the Censitaire holder of the land adjacent, and could not be used in 
 competition with mine. Another bought land in my seigniory, precisely so much 
 below what otherwise would have been its worth ; because it was burthened with 
 a certain known rate of cens et rentes; because, whenever sold, lods et ventes 
 were to be paid upon the sale ; because such and such reserves in favor of the 
 Seignior were charged upon it; because the valuable water power in front 
 of it formed no part of it. Is all this state of things to be reversed? Are our 
 respective rights and obligations to be legislatively annulled ? Is the property 
 that I bought because it was valuable, to have its value taken from it ? Are rights 
 that another did not buy, — rights doubhng, trebling the value of the property, for 
 which he paid a low price just because he did not buy them, — to be given to him, 
 at my expense ? And is this to be done, moreover, notwithstanding that on the 
 faith of the declared law o( the land the Crown in due course took its fifth part of 
 the high price that I so paid, as being its legal right upon that my honest purchase, 
 — or perhaps even sold to me my Seigniory, at such high price, as being the honest 
 value of the righis legally attaching to it ? 
 
 I refer to no imaginary cases. The Crown does take its Quint on the sale of 
 every Seigniory ; it has — and lately — sold Seigniorial property at the value predi- 
 cated on this received state of ihe law, which is now threatened with legislative 
 reversal. 
 
 One of the clients for whom I here speak, came to this country but a few years 
 since, to settle and invest his means here. Before buying the Seigniory which at 
 this moment (unfortunately perhaps for him) is his property, he took advice — the 
 best professional advice to be obtained — as to the nature of Seigniorial property. 
 The Seigniory he thought of buying, was in part granted at rates ranging beyond 
 the maximum now talked ol, and in great part was wild, ungranted land. He was 
 advised, of course, of the tenor of the jurisprudence of our Courts ; bought at the 
 price thereon predicated ; paid the Crown the fifth part of that piice ; the Crown 
 took such payment ; and this Bill now threatens — I dare not say what reduction of 
 the value of his property, thus bought fn. reliance on the law, thus in part paid for 
 to the Crown. 
 
 Another of my clients owns a Seigniory on which there was not (I believe) a 
 settler at the time of the session of this country to the Crown ; a Seigniory, every 
 Censitaire of which holds under grants of later date than the days of the French 
 government, and, (as matter of course, I might say) at rates exceeding — most of 
 them lar exceeding — this two pence currency per arpent, which by some wonderful 
 arithemetic has been cyphered out to represent that unknown quantity, the undis- 
 coverable fixed rate of the olden time. He Was the purchaser of his Seigniory at 
 Sheriff's sale ; and the Plaintifi procecuting the sale was no other than the Crown. 
 He paid the Crown, not the mere Quint, but the entire purchase money ; and that 
 purchase money was the price — the market price — of these high rents, which this 
 Uill would make illegal. The Crown took that price, for those rents ; which, aa 
 vendor, it most surely then held out as legal rents. This Bill threatens that buyer, 
 with something little short of the destruction of the value of the property which 
 the Crown so sold him, for which he so paid the Crown. 
 
71 
 
 What each of these gentlemen bought and paid for, they are not to be allowed 
 to have. No Court of Law, by possibility, could be brought to abridge either of 
 them, of one iota of the rights sought to be taken from them. But it is proposed to 
 cut down those rights by Act of Parliament; leaving them — wronged, impoverished 
 losers by such abridgment of their legal rights — to pray thereafter, at their proper 
 cost, risk, and peril, for an uncertain, insufficient, illusory shadow of a so-called 
 indemnity. Is this justice ? Is this law ? The measure of right to be meted forth 
 by the British Crown, to British subjects ? Can such a measure be laid before the 
 Crown for sanction? Can the Crown give it the name and force of law? The Crown 
 cannot — will not. 
 
 I have characterized this measure, as one that cannot possibly be defended for 
 an instant, unless upon the ground — which I have proved to be untenable — that 
 my clients are not in very truth proprietors, but public trustees — so in default that 
 no mercy should be shown them ; as a measure that unsettles their contracts, 
 abates their legal rights, despoils them in great part of their property, inflicts upon 
 them loss of every kind, and offers them no indemnity, but such as is a very 
 mockery of the term. And to prove this, I proceed now to take up — and, as rapidly 
 , aa I can, to comment upon— the leading clauses of this Bill. 
 
 r It is intituled " An Act to define Seigniorial Rights in Lower Canada, and to 
 ** facilitate the Redemption thereof"; and it begins by declaring that it is desirable, 
 ** to facilitate the commutation of lands held en rolure in the several Seigniories of 
 *' Lower Canada, by more ample and eflectual legislative provisions than are now 
 " in force," and further, " to define the Seigniorial rights to which such lands will 
 " in future be subject, and to restore, in so far as circumstances will allow, all such 
 " legal remedies as the Censilaire forraeily possessed against all encroachment or 
 " exaction on the part of the Seignior, as well as those ot which the Seignior could 
 " avail himself for the maintenance of his rights." Now as to any facilitating of 
 the redemption of Seigniorial rights, I have not a word to say against it. I repeat, 
 emphatically and sincerely, that I am here to say no word against any redemption 
 of the rights of Seigniors. My clients are anxious to have tneir property relieved 
 from the odium of an unpopular tenure ; and would rejoice, as citizens and as pro- 
 prietors, to see it change its form. At the same lime, it is not their business,--and 
 speaking as I here dolfor them, it is not mine, — to suggest the mode in which this 
 is to be done- The proprietor has no light to urge any particular mode of proce- 
 dure as that by which (for great ends of public policy) the form and character of 
 his property is to be changed. His right is merely, to insist that the change be not 
 made to his loss ; that for what the public take from him, the public see that he be 
 indemnified. Others here propose a change of the tenure, as a change which the 
 public i iterest demands. My clients, provided only that they be indemnified, — 
 that their rights, before being abrogated, are redeemed, — have no objection to offer. 
 Against any change of the tenure, on this principle to be effected, (no matter what 
 the machinery,) they do not desire me to say — and if they did, I would not say — a 
 single word. • But when it is proposed, as here it is, to define Seigniorial rights, 
 and when, besides defining, it is furiher proposed to alter, by restoring — with modi- 
 fication always — one knows not how much of certain alleged provisions of old laws 
 admitted not now to be law, I have my objections. Define my clients' rights? 
 They are not doubtful. The tenor of their titles is not doubtful ; the tenor of their 
 contracts with their Censilaires is not doubtfnl; the law, as applicable to the inter- 
 pretation and enforcement of their contracts, is not doubtful. There is nothing 
 doubtful about the matter. The very mistaken impression that has assumed the 
 form of a popular doubt as to the matter, is not doubtful; but is plainly, clearly, 
 an impression having no basis of fact or law to rest upon. And, restore in part the 
 past ? The past never is restored. Everything changes, onward. The further 
 changes we have to make, must be — not backward, towards the past, but — onward 
 to the future. If every document which has been laid before this House and the 
 country do not utterly deceive, if every historical authority be not at fault, no part 
 of that state of things which prevailed before the cession of this country to tlie 
 British Crown, and which that cession abrogated, was of such a character as to 
 make it possible one should be willing (weie it possible) to go back to it. What 
 we have to do, is to go honestly forward ; further amending, in the spirit of the age, 
 the Btate of things we have. 
 
72 
 
 But this First Section of this Bill, as it proceeds to its enacting porlian, savors 
 only of retrogression, not at ail of progress. It proposes lo repeal the two Provin- 
 cial Acts of 1845 and 1849, of which I spoke a few moments since, for the facili- 
 tating ot the optional commutation of the tenure. And the Bill contains no provi- 
 sion in any of its after clauses, for the facilitating or even allowing hereafter of 
 such optional commutation, by mutual consent of the parties, as these Acts provided 
 for. My clients regret that this should be proposed. These Acts provide for 
 voluntary commutation, by mutual agreement, between themselves and their 
 Censiiaires. Why should this be made impossible ? Why should the machinery 
 for commutation, which the existing law allows, be taken away ? Is this, part of a 
 Bill to facilitate the redemption of Seigniorial rights ? To that end, there is 
 needed no definiton of rights that by law are clear,— no restoration of forms and 
 modes of legal process that are obsolete and forgotten, — no repealing of statutes 
 that already put it into men's power, by mutual agreement, to effect such redemp- 
 tion. Rights must be taken as they are ; their redemption on terms fair to both 
 parties, whether ascertained so to be by their mutual consent or otherwise, must be 
 made easy ; those legal processes and those only, that are best calculated to effect 
 this end, and are suited to the spirit and principles of the age, must be provided, as 
 the means by which it is to take effect. 
 
 &o much for the First Section of this Bill. 
 
 From the Second to the Fifteenth Sections, it is taken up with provisions by 
 which it is proposed to regulate the matter of the sub-granting or concession of the 
 lands not at present sub-granted, in the Seigniories. 
 
 The Second Section provides : — 
 
 '* II. That from and after the passing of this Act, all and every the judicial 
 " powers and authority vested in and granted to the Governor and the Intendant of 
 *' New France or Canada, by the Ar/et of His mont Christian Majesty, the King of 
 *' France, dated at Marly, the 6th of July, 1711, in relation to lands in iNew France 
 " or Canada aforesaid, conceded in iSeigniories, and by any laws in force in Ca- 
 ** nada at the time of the cession of the country to Great Britain, shall and may be 
 *' exercised by the Superior Court of Lower Canada, and by the Judges of the 
 " said Court, or by the Circuit Courts, due regard being had to the -extensions, 
 '* restrictions and modifications of the said judicial powers and authority made by 
 " this Act." 
 
 That is to say, all these powers, be they what they may, are vested not 
 merely in the Superior Court, but in each individual Judge thereof and also in 
 every single Judge of the Circuit Court. The phrases used are **' the Judges" of 
 the Superior Court, and ^* the Circuit Courts ;" but it will be seen presently, that 
 the summary procedure contemplated may be taken before any one Judge of the 
 Superior Court, and therefore never would be taken before the two or three Judges 
 who alone can form a quorum of that Court itself; and the Circuit Court existing 
 for Lower Canada, (as I need not say, except for the information of gentlemen from 
 Upper Canada not conversant with our system,) though nominally a Court consist- 
 ing of several Judges, never sits as such, — but must always sit and act as a Court 
 of one Judge only. The proposal is, to vest all the powers as to all land conceded 
 en fief, that were ever vested in the Governor and Intendant together, that is to say, 
 in the two officers of the French Crown who together embodied all its despotic 
 authorily, the one the head of its military and state executive, the other its highest 
 civil, financial, police and judicial functionary, — to vest all these powers, I say, in 
 any and every single Judge in Lower Canada, whether of the Superior or Circuit 
 Court. I venture to express the opinion, that this is not to restore the past. The 
 Arrets, one after another, show that the Intendants jealously guarded from all 
 encroachment by inferior Judges, the high powers vested in themselves, — much 
 more those yet higher powers entrusted "only to the Govemors and themselves 
 acting conjointly. These were powers lar transcending any mere judicial autho- 
 rity. The Intendant — absolute Chancellor, Chief Justice, and what not, as he 
 was — could not himself exercise them alone ; any more than the Governor. No- 
 thing short of the direct interference of the whole embodied absolutism of the 
 French King, could put them into operation. And yet it is proposed— calling them 
 
73 
 
 to that end, " judicial powers" as in truth they were not— to place them in the 
 hands of every single Judge of the Circuit Court; of every incumbent of a judicial 
 office, the qualification for which is five years' standing at the Bar, and a willing- 
 ness to accept a judicial position of inadequate emohiment and not of the higher 
 grade; for without meaning the slightest disrespect to the gentlemen who hold 
 that position, — and 1 have the highest respect for everyone of them, and only regret 
 that the emolument and rank of their po'sition are not more in accordance with 
 what I believe to be their personal deserts, — it yet is an indisputhble fact, that the 
 jurisdiction entrusted to them is the inferior jurisdiction only, of the country. Under 
 this clause, as worded, I do not see hut that any one of these gentlemen might 
 decree the escheat to the Crown, of an entire Seigniory ; and certainly the high 
 power — half state, half judicial — to escheat and grant away Seigniories piecemeal, 
 is meant to be conferred on each of them. Again I say, there is not here any 
 restoring of any feature of the past. 
 
 Indeed, the concluding words of the Section make it clear that no restoration is 
 meant ; for it is there said that this power is only to he exercised^ ** regard being 
 ** had to the extensions, restrictions, and modifications of the said judicial powei-s 
 '* and authority made by this Act." Not merely are they to be exercised by any one 
 of a score or more of lunctionaries. in place of being exclusively the function of two 
 acting together; not only are they to devolve on functionaries of a rank less 
 elevated ; but they are not to be exercised as of old, at all. They are to be 
 extended, restricted and modified, — to be converted into other powers; and then, 
 and then only, put into force, — new powers, by new machinery, to new ends. 
 
 I read the next Section, as the first of those clauses that together set forth the 
 extent and nature of these innovations, which it is proposed to make, undercolor 
 of a restoration of the past. 
 
 " III. And in order to facilitate the exercise of the said judicial powers and 
 " authority — Be it enacted, That no Seignior shall hereafter concede to any one 
 i' individual any extent of wild land, exceeding 120 superficial arpents, otherwise 
 " than by two or more separate deeds of concession, bearing dale at least two years 
 " from each other, or unless the excess over the said quantity of 120 arpents be 
 " conceded to the father, mother or tutor for the use of one or more minor children ; 
 " and in the latter case, the extent of land conceded for each such minor shall not 
 *' exceed 120 superficial arpents, and the minor in favor of whom each concession 
 ** shall be made, shall be named in the deed of concession." 
 
 That this Honorable House may understand the meaning of these words "wild 
 land," as they here occur, I must beg its attention to the Eighty-ninth Section, 
 nearly the last Section of the Bill, and one of its Interpretation clauses. It is 
 thereby provided : — 
 
 "LXXXIX. The words *wild lands,' or 'wild land,' whenever they occur in 
 '^ this A(?t, shall be construed to apply not only to all wood lands or lands other- 
 " wise in their natural state, but also to all land in part settled or cleared, or other- 
 " wise improved by any other person than the Seignior of the ceiisive within which 
 *' such land shall lie, if such land so settled, or in part cleared or improved, be not 
 " yet conceded." 
 
 In other words, supposing any land in a Seigniory, not theretofore sub-granted 
 by the Seignior, to be partly settled or cleared, or otherwise improved ; if this have 
 been done by any one but the Seignior, or a party acting at his instance and for 
 him, — for I take it for granted, that it is not meant by the words used, to require 
 that he should himself have been the clearing settler, — such land is to be considered 
 "wild land," within the meaning of this Bill. But need I go into argument, to 
 show that no such idea as this was entertained in 1718, when the French King 
 limited the obligation of the Seminary of Montreal to concede at a certain rate, to 
 wild land, (" en bois f/c6ozt/,"— land in forest) and expressly saved their right to 
 (leal as they would with any land, a fourth part of which should be cleared (" dont 
 il y aura un quart de defriche") no matter by whom or how ? Or, in 1730, when 
 Messrs. Beauharnois and Hocquart, writing in a spirit of hostility to the Seigniors, 
 (see page 22 of the Fourth Volume laid before this House,) proposed to let them 
 
74 
 
 take the full advantage of all clearings, and of all natural meadows, C^des defriche- 
 merits et des prairies naturelleSj^) wherever to be found within their Seigniories ? 
 Or in 1735, when the King expressly refused to tie down the Seminary ever so 
 loosely, to any usual rale that should limit their right to take advantage of whatever, 
 lor any cause, might be the reasonable excess of value of one lot of land over 
 another ? Is it a revival of old law, or a mocking play upon old words, that is 
 intended, when it is said, — first, that wild land is to be granted in such and such 
 quantities only, — and then, that these words " wild land" are to be held to mean — 
 not wild land, but any cleared land which the Seignior may not have sub-granted 
 and may not have cleaied himself ? If the land be not wild, and belong to the 
 Seignior, what matter by whom it was cleared t Whether it be wild or not, 
 whether it be his or not, are questions to be determined at Common Law, not by 
 Act ol Parliament. To say by Act of Parliament, that land shall be called wild, 
 and held not the Seignior's property, because it was cleared by some one else, and 
 has not been by him the Seignior alienated, is to declare the thing that is not; to 
 enact the thing that cannot be. 
 
 So interpreting these words, however, this Third Section which I have read 
 proposes to declare, that such "wild land" (cleared or not) shall never be granted 
 in quantities exceeding one hundred and twenty arpents, unless it be to some father, 
 mother, or tutor, on behalf of minor children. That is to say, man or woman with 
 any number of children on their hands, of a day old or upwards, may get their five, 
 six, seven, or more, hundred arpents. The man without children may not get more 
 than his one hundred and twenty. As though — I say nothing of the wide door to 
 fraud which such a provision opens — the man burthened whh alarge family of small 
 children could clear land faster than the man without. Or as though, in these 
 days, he were to be rewarded by the State, as for public service rendered. 
 
 The Fourth Section proceeds thus : — 
 
 ** IV. No Seignior shall hereafter concede any wild land, of a less extent than 
 " 40 superficial arpents, unless such concession be made for a town or village lot, 
 ** or a site for building a mill or other manufacturing establishment (awire wst?i(?) 
 ** or unless the said land be so circumscribed or situated as to prevent its being 
 " otherwise conceded than in less quantity than 40 superficial arpents." 
 
 Both these limitations of quantity (maximum and minimum alike) are strange 
 to the old law ot the country. Take the four grants of Seigniories, of date 
 from 1713 to 1727, by which the Governor and Intendant sought to tie down 
 the Seignior most tightly as to the terms on which he was to sub-grant, (the King 
 the while undoing what they so sought to do,) and what limitations do we find ? 
 You shall concede, said they, at such and such a rate per arpent of frontage by so 
 many arpents in depth ; but no word was said as to the whole size of the conces- 
 sion ; no requirement thought of, that it should not as a whole contain more than 
 a hundred and twenty arpents nor less than forty. Among the grants en censive 
 which I have had occasion to remark upon, was one ( it may be remenibered) of 
 1674, by the Jesuit fathers, ol forty arpents by forty. At all times, grants 
 Were made freely, of all possible dimensions. No law or Arret ever proposed 
 in this respect to regulate or limit them. It is proposed at last to do so ; to do 
 so, by provisions that every where leave all possible room for fraudulent 
 evasion by grantor or grantee, or both, and all possible latitude for the discretion 
 (or indiscretion, as the case may be) of the one Judge by whom all disputes 
 about them are, summarily and without appeal, to be adjudged upon. 
 
 But I proceed to the Fifth and Sixth Sections ; which read thus : — 
 
 *« V. No Seignior shall establish by any Deed or Contract of Concession, on 
 " any wild lands which shall hereafter be conceded, any rights, charges, condi- 
 " tions, or reservations other than that of having the land surveyed and bounded at 
 *' the expense of the co?ice5sionaire, — of keeping house and home on the land so 
 " conceded, within a year from the date of the Deed of C^oncession, and of pay- 
 " ment by the concessionnaire of an annual rent not exceeding in any case the sum 
 *' of pence currency for every superficial arpent of the land conceded. 
 
76 
 
 ** VI. All such concessions shall be made in the terms of the form A annexed 
 " to this Act, or in terms of like import, and shall have the effect ipso facto of 
 '* changing the tenure of the land therein mentioned, into /rone aleu roturier^ and 
 *' of freeing it for ever from all seigniorial rights and all other charges, except ihe 
 " annual rent mentioned in the section immediately precedmg this section ; which 
 '* said rent shall be considered, lor all legal purposes, as a constituted rent {rente 
 ** constituee) redeemable at any time, representing the value of the immoveable 
 <' charged therewiih, and carrying with it the privileges oi'bailieur defonds.^^ 
 
 Again I read clauses of innovatory legislation. There never was law in force 
 in the days of the French Governmeni, that thus limited the conditions, which the 
 Seignior might put into his grants, if the Censitaire were willing to have them 
 there. So lar from it, the Seignior by the terms of his own grant was commonly 
 obliged to insert a number of other conditions limitative of his Censitaire^ s rights. 
 As to his own power of inserting more than he was so obliged to stipulate, there 
 can be no question. I, of comse, do not mean to say that the public law of the land 
 at the present day will allow the stipulating of conditions of a servile character, or 
 otherwise inconsistent with what is held to be public right ; nor indeed, that stipu- 
 lations ever could be made, in contravention of whatsoever might for the time be 
 held as public law. But for practical purposes, such restrictions on the right of the 
 Seignior to stipulate on his own behalf in his concession deeds, was in former days 
 next to nothing; and is still but slight. Within the limits allowed by the Public 
 Law, which limits are tolerably wide, Seigniors and Censitaires are in law masters 
 to do as they will in the framing of their deeds. For the first time, it is here pro- 
 posed to declare that they shall be so no longer ; that the Seignior, proprietor as he 
 IS, shall be told not merely that he may not grant any more than so much nor less 
 than so much, but that he must grant this prescribed quantity on no other than cer- 
 tain prescribed conditions, — the same probably not being those which by the terms 
 of his grant he has heretofore been required to stipulate, whether he would or not, — 
 and lastly, that he is to do all this, at a prescribed price in the shape of a yearly 
 rent — the amountof which is in this Bill, as it yet stands, left in blank ! The quan- 
 tities in which, the conditions on which, f must alienate ray land, I am told ; but 
 the price I am not yet told. It is not yet determined, 1 suppose ; hut the blank ia 
 satirically significant of an intention not to let it be extravagantly high. 
 
 One word of comparison between this proposal of a fixed rate — amount un- 
 known — with that olM. Raudot in 1707 for something of the same sort, and which 
 the King of France would not sanction. When Raudot proposed to compel Seigniors 
 to giant at a rate that should be low, it was on the full understanding that the land 
 was so to be granted subject to the right of lods et rentes. This is not here to be 
 the case. And the difference is material ; for upon grants en censive such sus Raudot 
 contemplated, the lower the cens, the higher would the tods be. If the land be 
 burthened with rent to its full value, so as to yield no surplus profit to the holder, it 
 will be worth nothing, will sell for nothing, will yield no lods. If on the other hand, 
 the rent be small, the land at once hecomes worth much, sells readily at a fair 
 price, yields a fair return to the Seignior in the shape of lods. Raudot proposed to 
 take away on the one hand ; but also at the same time to give on the other. This Bill 
 proposes that the rent shall be a certain sum of money, — a blank sum, small 
 enough of course, — and thnt the land shall be held en franc aleu, that is to say, by 
 a tenure that shall yield no /ods at all. » Raudot's proposal, as we have seen, was 
 too much an invasion of the right of property, to be acted on in those days. Is this 
 proposal one to be acted on in these ? 
 
 I look, too, at the form of the deed which the Seignior is to give, — annexed to 
 this Bill. And I find that as a thing of course it requires of him as grantor, unre- 
 servedly to guarantee to the grantee the quiet possession of his grant. As grantor, 
 I am not to get the value of the land 1 grant. My price for my land, the law 
 is to limit. Liut my liability, as having granted it, the law is to leave unlimited. 
 Tied down as to quantity, and conditions, and price. — not myself alienating my 
 land, — in fact havmg it taken from me,— I am to be just as unreservedly liable to 
 the man who takes it from me, if he is troubled in his possession, as though I had 
 sold or granted it to him for a fair value, of my own Iree will. And, as if to keep 
 up throughout, the style of satire in which the whole is drawn, my rent, (of blank 
 amount,) I am told, is to be '^ considered for all le^l ptirposes as a «onstituted 
 
76 
 
 " rent (rente constiiuee) redeemable at any time, representing the value of the 
 " immoveable charged therewith." It is to be considered to represent such value. 
 Why is it not to do so? Why am I not to have that value? My predecessors had 
 it, under the French Crown. My right is, to have it now. 
 
 Once more I say ; clauses like these could not have entered into the mind of 
 man, unless by reason of ihe doctrine, in all its length and breadth and fulness, 
 that the Seigniors are wrong-doing trustees, to whom no mercy is to be shown. 
 That doctrine disproved,— and disproved it is,— these clauses, one and all, admit of 
 no word of defence or apology. 
 
 But there is more to come. The Seventh and Eighth Sections read:— 
 
 *' VII. All sales, concessions, agreements or stipulations hereafter made, 
 " contrary to the preceding provisions, shall be null and of none effect. 
 
 " Vfll. Every Seignior who shall receive, directly or indirectly, any sum of 
 *' money or any other valuable thing as and tor the price or consideration of the 
 "concession of a quantity of wild and unimproved land, over and above the annual 
 " rents and dues, or over and above the capital they represent, shall repay such 
 " surplus to the party who shall have so paid or given the same, or to his represen- 
 <* tatives ; and any person who shall so pay or give any sum of money or any other 
 " valuable thing, shall have an action lor the recovery thereof with costs in any 
 ** Court of competent jurisdiction." 
 
 Again, no restoration of anything that was law before the cession. The one 
 nullity in those days ever thought of, as I have shewn, was that threatened by the 
 Arret oi 1162 , — the nullity of every sale of wild lands, by Censitaire or Seignior. 
 The sale of land not absolutely wild,— the grant of land, in any state, at high rates 
 or under onerous charges, — were never threatened with nullity. There was one 
 remedy and but one, for the one complaint that the Censitaire might make ; and 
 ihat remedy was by appeal to the Governor and Intendant, and the obtaining from 
 them oi'the concession, which the arbitrary will of the King had committed to them 
 (on such complaint made, and not otherwise) the right of granting. But by this 
 threatened legislation, lam told the size of the grants I am to make ; they are 
 neither to be too large nor too small ; all freedom as to conditions and price of grant, 
 is taken from me ; and if any man for any cause agree to let me have the advantage 
 of other and to my mind better terms of any sort, such agreement — no matter how 
 freely made — is to be '* null and of none effect." I cannot bind him to his word. 
 He cannot bind himself. Nay, in the case, even, of his having given me any kind 
 of consideration whatsoever, to induce me to prefer him to another, for any lot that 
 may chance to have been particularly in demand, I must give it back to him, or his 
 representatives, w^henever he or they shall see fit to ask me so to do. There is 
 such a thing as immoral legislation; and, as one instance of it, I must say that the 
 law that wantonly enables men of full age and sound mind to unsay their word, to 
 get back what they may have freely given, or keep what they may have agreed to 
 give, for that which at the time was an honest consideration, is not moral. The 
 less we have of such law, the better. 
 
 I proceed to the Ninth Section : — 
 
 ^ IX. Every Seignior who possesses within his censive any wild lands, shall be 
 " entitled to dismember from such wild lands and to preserve for his own private 
 " use, without being obliged to concede any part thereof, a domain which shall not 
 " consist of more than superficial arpents ; Provided always, that Seigniors 
 
 " who have already domains within their censives, intended for their private use, of 
 " the said quantity of arpents or more, shall not have the right of reserv- 
 
 " ing for such use any part of the wild and unconceded lands in the same censive ; 
 " and that Seigniors whose domains already reserved for iheir private use, are 
 '' under the said quantity of arpents, shall have the right to reserve only 
 
 *' so much of the wild lands in the said censive as will complete the said quantity of 
 " arpents." 
 
77 
 
 Innovation, still.— The old law of the Feudal Tenure, as we have seen, required 
 the grantee of land en fief Xo keep such land himself. Ever}'- permission to sub-grant 
 was a relaxation of the nile. And that relaxation was carried in Canada to its utmost 
 length, by the Arret of Marly ; under which the granting ol land was not merely 
 permitted, but in general terms, and without specification of any particular extent of 
 reservable domain, directed. But there could have been, at the time ot the framing 
 of this Arret J no idea of preventing a Seignior from reserving any extent of domain, 
 no matter what, that he could make use of. When the King granted a Seigniory 
 of six leagues square, to noblemen of high rank, — as for instance, he did Beauhar- 
 nois. — was it to be supposed that the Marquis de Beauharnois, the Governor of the 
 country, and his brother, men of their position and pretensions, were meant to be 
 limited to a blank number ot arpents for their domain ? Never. And Jhe grantees 
 of Seigniories were, in the great majority of instances, men of mark and consequence ; 
 many were of noble family ; many were to be rewarded for valuable service ren- 
 dered ; many rendered special service as a consideration for their grants ; some 
 had their Seigniories (the Comtes of St. Laurent and D'Orsainville, and the Baron- 
 nerics of Porlneuf and Longueuil, for example) so specially ennobled as to give 
 rank to their owners in the peerage of France itself; as a body, all were meant to 
 be the nobles of New France. Was it ever meant to say to them, that they must 
 not hold and use lor themselves, more than some fixed maximun fraction of the vast 
 grants of land, which by its letters patent the Crown gave them in full property for 
 ever ? The Arret of Marly could have meant to threaten no more than this j you 
 are not to keep these grants wild and unused in your own hands so as to stop 
 the clearing of the country; the King's object being to get the country cleared, he 
 enjoins on you that you sab-grant it to settlers, as occasion shall require, in consi- 
 deration of dues to be stipulated, and without insisting upon what under the circum- 
 stances the King does not choose that intending settlers be required to give — payment 
 of money in advance. When the King said this, he said all that he meant to say ; 
 more than he meant to have carried out. The enforcement of the order was left to 
 the two highest functionaries in the country; necessarily with the widest range of 
 discretion as to such enforcement; and we know that they were never indisposed 
 to enlarge that range. 
 
 Practically, I repeat, no Seignior's domain was ever limited. 
 
 But now, it is proposed (under pretext always of restoring the old state of 
 things) to fix upon some blank number of arpents, as such limit; to tell the des- 
 cendants and representatives of these proprietors of the old time, — proprietors, many 
 of them, under titles that only did not quite invest them with sovereign prerogatives 
 within the limits of their properties, — that they are not to retain more than so many 
 arpents for themselves, the number not known, but sure not to be extravagant ; and 
 that they must part with all the rest, to whom, on such terms, at such prices, as the 
 Legislature — no, I ought not to say the Legislature — as any one Judge of the Supe- 
 rior Court or Circuit Court shall determine. 
 
 Let us see, then, what are to be the prerogatives of such Judge, in this pro- 
 posed new capacity, as representing the Governor and the Intendant of the days of 
 French absolutism. They are rather high. 
 
 The Tenth and Eleventh sections read :~ 
 
 ^' X. Any person who, after the passing of this Act, shall have called upon the 
 ^' Seignior of any Seigniory whatsoever to concede to him or to his minor child, a 
 *' lot of land forming part of the wild and unconceded lands of such Seigniory, may, 
 " if the Seignior so called upon refuse or neglect to concede such lot of land, sum- 
 ** mon and sue such Seignior by action or demand in the form of a declaratory 
 '• petition, (requete libellee) in the Superior Court, or before any one of the Judges 
 " thereof silting in the District, or in the Circuit Court sitting in the Circuit, in 
 " which such lot of land is situate, for the purpose of obliging such Seignior to con- 
 " cede the same. 
 
 " XL Whenever the Seignior shall have no domicile in the Seigniory in which 
 " such concession is demanded, the writ of summons and the petition thereunto 
 ** annexed shall be served upon his agent, or upon the person charged with the 
 
 l^r " aunexeu 
 
78 
 
 " collection of the rents of the said Seigniory ; and if there be no such agent or no 
 " such person having his domicile in the Seigniory, the service of the writ of sum- 
 " mons and of the petition thereunto annexed, shall be made by posting c-n the 
 ** door of the place appointed for the receipt of ihe seigniorial rents, for the year 
 ** next preceding such service, a duly certified copy of such writ oi summons and 
 " of the petition thereunto annexed." 
 
 I see nothing as to the length of time to elapse between the service or posting 
 of this petition and its presentation to the Judge. I suppose it is intended, there- 
 fore, that It shall be the usual length of time allowed for return of a summons. This 
 in the Superior Court is ten days, with an allowance for the number of leagues 
 to be travelled ; and in the Circuit Court five days, with a like allowance. That 
 is to say, within irom five to ten, or at most tweniy days, by a summons that need 
 not be personal, nor even a summons made at his domicile, — of the issue of which 
 he may often not be made aware, — every Seignior may be summoned to answer for 
 himself, on this matter, (the refusal to concede his own land to " any person'' ' — 
 vagabond, stranger, alien, no matter who — or to any ^^ minor child " of such person- 
 boy or girl, no matter how young,) and this before the Judge whom such person may 
 select ; and the afiair, as the next Section of the Bill advises us, is then to be 
 " determined in a summary manner," unless such Judge shall think fit to order 
 a plea to be fyled, and written evidence te be adduced. 
 
 I read the clause, lest I be thought to mis-state its tenor: — 
 
 " XII. Every such action or demand shall be determined in a summary 
 " manner, unless the Court or the Judge, before whom the same is brought, shall 
 ** think fit, for the interests of justice, to order a plea to he filed and written 
 *< evidence to be adduced ; and in every such action the said Court or the said 
 ** Judge shall condemn the Seignior so sued to give a Deed of Concession of the lot 
 ** of land so demanded, in favor of the Plaintiff, on the conditions and in the manner 
 " prescribed by the Sections of this Act, within such delay as shall be ap- 
 
 *< pointed by such Court or Judge, unless the Seignior so sued, shall show that the 
 ** lot of land so demanded as a concession forms part of the lands reserved by him, 
 *^ under the sanction of the law, as a domain for his own use, or that he is not by 
 *' law obliged to make such concession : and in any case in which it shall be more 
 •'* in accordance with equity to order that a lot of land other than the one de- 
 ** manded, be conceded to the Plaintiff", it shall be lawful for the said Court or for 
 ** the said Judge so to do ; and whenever the Seignior shall, after the expiration of 
 " the delay allowed, have neglected to grant a Concession Deed in favor of the 
 " Plaintiff, such Judgment shall to all intents and purposes be for the said Plaintiff" 
 *' in the place of a Concession Deed of the lot of land designated therein, on the con- 
 ** ditions therein specified." 
 
 And so, when, as the representive of the grantee of any Innd held en fief (that 
 is to say, nobly) whether under grant from the French Crown or from the British 
 Crown — say, as representative of the first grantee of Beauport, Desplaines, Mount 
 Murray, or St. George in Sherrington — holder under grants of property as absolute 
 and unrestricted as can be expressed in French or English words — I find myself 
 impleaded before any Judge whom any person impleading ma may have selected, 
 my cause is to be heard ** in a summary manner," that is to say, without written 
 plea, or a day's delay for preparation to plead verbally, or record of the evidence 
 taken ; unless such Judge see some special cause to order otherwise. Implead me 
 for fifteen pounds and one farthing, or as to any other matter than- this, at all affect- 
 ing real estate, or any right in future ; and I have, of right, my delay to plead — my 
 plea fyled in writing — my adversary's written answer —the evidence of every wit- 
 ness recorded — a written Judgment, froni which I can appeal. But here, with my 
 property at stake — real estate too — to a value perhaps of hundreds, perhaps of 
 thousands of pounds, I may be impleaded by a process not amounting to a legal 
 summons, before a Judge to be selected by my adversary ; and, unless by that 
 Judge's permission, I am not to have the poor satisfaction of time to plead, or the 
 right to record my plea, or the right to have the evidence reduced to writing, so 
 that I may take my chance of bringing up any scoundrel, who may have committed 
 perjury to my prejudice. 
 
79 
 
 And even this is not all : the Judge, if he please to think such course '* more 
 in accordance with equity," may order me to grant any other lot oi land than that 
 sued for. I may, perhaps, not be present: I may be ill ; the roads or the weather 
 may have detained me ; 1 may have staid away, thinking it of little consequence 
 what was done, — the lot demanded being one I did not value. But ray one Judge, 
 if (for whatever cause to his own mind at the moment seeming sufficient) he shall 
 see fit so to do, may give this " any person " any other part of my laud than the 
 part he so demanded. Perhaps it may not matter much, as matters are meant to 
 stand by this Bill, what part of my land is given to one, and what part to another, 
 or which parts are to go first. They are all to go ; and will not be long in going. 
 Still, the last feather, says the proverb, is what breaks the horse's back. 
 
 But we are not come to this last feather yet. The Thirteenth Section is as 
 I follows :— 
 
 IB *' XIII. Whenever it shall appear to the said Court or Judge that the lot ofland, 
 ■^^ so demanded as a concession, is not susceptible of cultivation, or forms part of a 
 " mountain, hill, rock or other land, which it might be necessary or advantageous 
 " to reserve for the making of maple sugar, either for the use of those who shall 
 " have acquired that right under agreement whh ihe Seignior, or for the use of the 
 " Censitaires of such Seigniory generally, or for any other object of public useful- 
 ** ness in such Seigniory, it shall be lawful for the said Courts, or Judges to reject 
 " such demand." 
 
 IIP That is to say: it shall not be lawful for my Judge to reject the demand, on 
 my production of the titles of my seigniory, showing ihat the land claimed is mine ; 
 on my showing that the applicant has no more right to it, than any other man oa 
 this earth — or perhaps, that as a vagabond or as an alien he has (if possible) less 
 claim to it than most others ; on my proving that it is not only mine by written title, 
 but has a houte (my property) upon it, and that it is under cultivation by a party 
 holding for me, or at any rate not denying my right. If this one Judge shall think 
 that it does not form part of ihe lands reserved by me under the sanction of the law 
 as a domain for ray own use, or that I am by law (this very Bill to be such law) 
 obliged to raake concession of it. — I may not keep it. Unless it please the Judge 
 to let me, I may not pnt in my plea to assert my right to it ; nor examine a witness 
 brought against me in writing. But the Judge may, in his discretion, take from 
 me any other lot ofland instead. And if (still in his limitless d'scretion) he shall 
 think the lot ** not suKceptible of cultivation," or a lot which it would be ''advanta- 
 •* geous to reserve for the making of maple sugar," or for any other end that he 
 may regard as an " object of public usefulness," — that is to say, if he think the lot 
 likely to be of use as a reserve, to any one but me its owner, — he may reject the 
 demand ; and, I take it for granted, may reserve the lot accordingly. 
 
 The Fourteenth Section carries us a step further : — 
 
 I 
 
 jHt ** XIV. In all such demands, the exception based upon the allegation that the 
 ^^ lot so demanded forms part of the lands reserved by the Seignior as a domain for 
 •* his private use, shall be rejected on uncontradicted proof by two credible wittiesses, 
 •* that the Seignior, or his agent, has, before the filing of such demand, refused to 
 " point out to the Plaintiff the situation and extent of lands so reserved by him, or 
 " that he has pointed out, as forming such domain, lands in which the lot, deman- 
 " ded as a concession, was not comprised." 
 
 If then, any two persons (on the occasion of this summary hearing) shall come 
 up and make oral deposition that I have refused to point out, whenever asked, the 
 lots on my seignioiy, reserved as by this Bill required, for my domain ; or that I 
 have pointed out as such, other land than that in dispute ; unless I have ready upon 
 the spot (as I can scarcely have,) other witnesses to contradict them on this point, 
 my defence — though it be that the land is part of such specially reserved domain, 
 and though I prove it never so unanswerably — is not to avail me. If even it be so 
 sworn that roy agent ever did such a thing, the result is to be the same. 
 
 and every man, though not at the time impleading me, or expressing anj 
 80 to do, nniistbe shown by me (or by my agent, as the case maybe) punc- 
 
so 
 
 tually and before witnesses, whenever and how often soever he may ask either of 
 ns, what lands I claim to have specially reserved for my domain. Or else, I may 
 find him hereafter bringi^ng up his two witnesses, to prove that we would not do so ; 
 and thus cutting away my defence to any claim he may make to any land what- 
 ever, that he shall choose to claim of me. It is hard to think that such a clause 
 can be meant in earnest. The land may be part of ray reserved domain, beyond 
 any kind of question ; not a stone's throw from my manor house; but the Judge 
 is to take it from me, if it only be sworn by two witnesses, whom I cannot on the 
 spot contradict by others, that I or my agent ever refused to show the Plaintiff my 
 reserved domain, or did not show him that land as part of it. The depositions 
 may be false ; but 1 have no right to insist on their being taken down in writing, 
 lo help me in a prosecution for forgery. I do not say, there is a Judge in Lower 
 Canada, who would refuse to let me take such evidence in writing. 1 believe the 
 Judges would be better than the la^<^. But law and Judges alike ought to be 
 above suspicion as to purity. The Bill that leaves to the Judge such discretion as 
 must expose him to suspicion, ought never to be law. 
 
 But lastly, to make it impossible to question the intent of this part of this 
 Bill, its Fifteenth Section (the last affecting this particular part of it) runs thus : — 
 
 *' XV. And all Judgements rendered upon a demand for a concession, either 
 ^'•bythe Superior Court or a Judge thereof, or by a Circuit Court, shall be final 
 " and without appeal." 
 
 For anything over fifteen pounds currency, as I have said, 1 have my appeal, 
 first from the Circuit Court to the Superior Court, and then from the Superior 
 Court to the Court of Queen's Bench. For anything over fifty pounds currency, I 
 must be sued in the Superior Court; and have my appeal to the Queen's Bench. 
 For anything over five hundred pounds sterling, I have my appeal to Her Mnjesty 
 in Her Privy Council. In any case but this, involving my real estate or rights in 
 future, be the amount never so small, my appeal lies of right to that high tribunal 
 of last resort. But, under this bill, by this one procedure, my land, the land 1 hold 
 by grant from the Crown of France or of Great Britain, it may be under the direct 
 sanction of the Legislature of the Province, may be taken from me without legal 
 summons, without written pleading fyled or evidence taken ; by any single Judge, 
 summarily, finally, without revision or appeal forever. Is this French law ? Is 
 it English? Can it ever be Canadian ? 
 
 I have arrived at the Second Part of this Bill ; which purports to provide for 
 the Reunion to a Seignior's Domain, of lands granted to CensUaires but not by the 
 latter duly settled upon. This part of the Bill covers Irom the Sixteenth to the 
 Twenty-eighth Sections, both included. 
 
 The Sixteenth Section reads as follows :— 
 
 ** XVL And in order to facilitate the reunion to the domain, of such lands or 
 ** parcels ol land, in the cases provided for by law, and to render such reunion less 
 " expensive to the Seigniors and to the Censitaires — Be it enacted^ that any Seig- 
 " nior may by one and the same action or demand, in the form ol a declaratory 
 ^'' petition, (requete libellee,) sue and summon before the Superior Court, sitting in 
 " the District in which such Seigniory is situate, any number of persons holding 
 " lands in the said Seigniory, on the condition of settling on the same, andofkeep- 
 ^' ing house and home (ttnir feu et lieu) thereupon, and who shall have failed to 
 ** perform any one of the said conditionsj and to demand, in and by such action, 
 " the reunion to the domain of such Seigniory, within such reasonable delay as shall 
 " be ordered by the Court, of all the lots of land, in respect to which such condition 
 " or conditions shall not have been fulfilled; and it shall be lawful for the said 
 '< Court, to proceed and to give such Judgment in the action as to law and justice 
 *< shall appertain, with regard to the reunion of all such lots of land to the domain 
 " of the Seigniory in which they are situate." 
 
 Fully lo show its purport, some remarks may be necessary. 
 
81 
 
 The two Arrits of Marly gave to the Habitant desirous of becoming a Censi- 
 ^airc, a certain right of procedure against the Seignior; and gave the Seignior a 
 certain other right of proceduie against the Censitaire. The Censilaire by the Jatter 
 of these two procedures could be turned out of his holding, without summons, upon 
 the certificate of the Cure and Captain of the Cote that he did not keep hearth and 
 home upon it. Now, I do not approve of that summary proceeding. I do not want 
 to go back in any respect, to the past. Most surely, I do not want to revive this 
 procedure. The present had need be made better for all ; not worse for any. But 
 ■what is it proposed by this Bill, to enable the Seignior to do against his Censitaire ? 
 After the proposal to let a man who has no right to my land, take it from me against 
 my will, by petition to one Judge, summarily and without appeal ; what am I to 
 be empowered to do with the Censilaire^ to whom I granted land on express condi- 
 tion (among other things) of settling and living on it, but who has failed to perform 
 his contract on the faith of which 1 so granted? By this Section I am to have the 
 great privilege of being allowed to sue any number of such defaulter Censitalres^ if 
 1 please, in one action ; but this action must be before the Superior Court, where 
 written pleas and written evidence are rights at Common Law. I have heard o[ 
 persons, thankful for small mercies; but 1 never met with a well authenticated 
 case of a man thanlvful for no mercy at all. This privilege is one, of not the very 
 smallest practical value. If I have not it now, the reason is not more to be traced 
 to the technical difficuhies in the way of such a procedure, than to the consideraliou 
 hat it was never worth any man's while to try to overcome them. It is easier and 
 safer to sue five hundred men — each on averments of fctct affecting himself only — 
 by five hundred several actions, than it would be to sue them all by one. What 
 sort of a rtquete libellee could I bring into Court, to turn out five hundred CensUaires^ 
 for failure by each to settle on his land ? All I could do, would be to write out the 
 substance ol five hundred separate declarations, one after another, each complaining 
 of one, but all on the same paper. My requete would be only five hundred different 
 requites tacked together. And I should just have to serve a copy of the whole on 
 each man, instead of serving on each man no more than the one requete that pro- 
 perly concerned himself. VVould it not be simpler to bring each action sepajately ? 
 
 Besides, if I brought them all in one, I should have a most unmanageable ac- 
 tion on my hands ; and — for it is nr*ore than doubt! ul whether I could possibly 
 get Juilgment against any one or more of the five hundred, till the cases of all 
 should be ready lor final hearing — I should further be tolerably sure to have the 
 whole of my procedure hung up before the Court for a somewhat intolerable term 
 of time, by our system of procedure, as it stands, (and I see no proposal here, to 
 alter it in this respect.) any one of several Defendants by pleading would delay the 
 suit against all. But supposing that difficulty avoided, this proposal slill gives me 
 nothing ; for I had better (on other grounds) bring my five hundred suits than be 
 hampered with one unwieldy procedure against five hundred. In the days of the 
 French system things were very different in this respect. Then, the proceeding 
 under the second Arret of Marly, against the Censitai'-e was summary as heart of 
 man unfriendly to the Censitaire could wish. Then, the Seignior came before 
 the Intendant, with two certificaies against any number ol Cenr.taircs ; and the 
 Intendant, if so minded, could make out his order against them all, without ever 
 asking them what they had to say. If disposed to be more considerate, he would 
 summon them ; one or more would perhaps appear ; and on their appearance, or 
 default, as the case might be, Judgment would go, as readily and unreservedly 
 against those who might not appear as against those who should. These things 
 were common then. It is well, that they are not so now. The procedure of our 
 Courts, the law, is not such now, as that any man can turn a number of men out 
 of property, without first proving his case distinctly against each. And this being 
 60, it is no boon to tell him, that he can sue any number of men, for different causes 
 of action, by the same suit. A suit against each is his best course. 
 
 The Seventeenth Section provides for the mode of Summons ; and calls for no 
 particular remark. 
 
 The Eighteenth Section is as follows : — 
 
 '* XVIII. Whenever the said Court shall be of opinion, that the lands the 
 ** reunion whereof to the domain of the Seigniory in which they are situate, is 
 
 6 
 
82 
 
 " demanded, ought to be so reunited, it shall be the duty of such Court to order, 
 *^ by an Interlocutory Judgment, that on a day which shall be at least six months 
 ** irom the dale of the said Judgment, the said lands shall be so reunited to the 
 " domain, unless some party interested shall then shew to the satisfaction of the 
 " said Court, that the reunion of such lands, or any part thereof, ought not to take 
 *•' place ; and it shall be lawful lor every person so sued to prevent the reunion of 
 ** his land to the domain, by proving that he has, within the delay allowed by 
 *' euch Interlocutory Judgment, fulfilled the conditions of his deed of concession, 
 *' without however being thereby exonerated from his share of the costs incurred in 
 ^' the action." 
 
 The differences between the two modes of procedure are beginning to appear. 
 
 In that against me, in the procedure by which any man shall demand (for 
 himself, or for his minor child of a day old) to have land that is mine, — or at any 
 rate not his, — he gets a Judgment at once, on the day he comes before the one 
 Judge of his choice, if that Judge thinks proper. He may get such Judgment, 
 hough I may have had no such summons as in any other kind of case the law 
 would assure to me, and though I be absent — ignorant of the fact of his demand. 
 And I can have no appeal ; no help, even though the Judge may have made the 
 most obvious blunder. But, when 1 have a right in strict law, to get back my land, 
 because the man who took it of me has not done with it what he bound himself to 
 do — on express pain of forfeiture of the land — as the condition of his having it ; 
 after written pleadings fyled as of right, with all delays of right, evidence taken in 
 writing, argument by Counsel before the Court, (the Superior Court — no one Judge 
 can be trusted here,) after all the cost, trouble and delay of all this, 1 get, if the 
 Court are satisfied that 1 am right—what? Not a Judgment upon my demand, on 
 the day the Court are so satisfied. No such thing. " Any person," in the other 
 sort of case, with no legal right, would get a Judgment against me,~a Judgment 
 giving me no more delay than the one Judge giving it should appoint,— a Judg- 
 ment executing itself the instant that delay should have expired, were it a week, 
 or a day, or an hour,— a Judgment I could not appeal from. But here, with my le- 
 gal right, after due suit decided by a full Court of high jurisdiction, I am to* have a 
 mere Interlocutory Judgment, to theefiect, that as I have a right to the land, it shall 
 on a day " at least six months" off in the future, and as much longer as may be, 
 become mine ; that is to say, '' unless^'' by that time the Defendant — no, not the 
 Defendant — " unless some party interested,''^ no matter who, no matter how, shall 
 then (as by this clause he may) put himself into the suit, and fyle new pleaoings 
 in the suit, bunkum pleadings, il he be so minded,' — alleging that for any kind of 
 reason imaginable my declared right ought not to be accorded me. In which case, 
 I, perhaps, ought to he thankful thai at Common Law I c^n answer his pleadings, 
 take down and sift his evidence, argue ray cause again, and after such further cost, 
 trouble and delay as may be, perhaps get my right at last. 
 
 As the law stands, without this Bill, the Seignior can sue his Censitaire on this 
 ground of complaint, any day ; and when he has proved his case, is entitled of right 
 to Final Judgment. He does not so sue, because it is not practically worth his while. 
 This part of this Bill pretends to help him ; offers him the boon of leave to sue any 
 number at once, by way ofhavingonhis hands a case that never can be got througli 
 with ; and assures him in any case, of some extra loss of time and annoyance, to 
 say the least, in the conduct of his cause. 
 
 The next Section, the Nineteenth, proceeds :— 
 
 '*X1X. A copy of every such Judgment so rendered shall be published in 
 '* the Canada Gazette, or other newspaper recognized as the Official Gazette of the 
 ^' Province, in the English and French languages, at least three times during the 
 ^* period which shall intervene between the date of the said Judgment and of the 
 *' day fixed therein for the reunion of such lands to the Seigniorial domain ; and 
 •" such publications shall not be made at an interval of less than four weeks, nor 
 *' more than six weeks from each other." 
 
 My procedure is to be simplified and made cheap and easy. And I am to 
 be thankful that it is so. But^ when I have got my Interlocutory Judgment, in 
 

 ^3 
 
 place of the Final Judgment which the law as it stands would give me ; and 
 while I am waiting my six months or more, to see whether the Defendant or any 
 one else will amuse me with a new contest ; my patience is not to be too severely 
 tested. I am to do something, — of course, at some cost. J am to advertise in 
 the Canada Gazette, in both languages. Unless I do, I cannot go on ; for of course 
 the Defendant will not. Therelore, I must. And if 1 have put my five hundred 
 Censitaires into one action, 1 may perhaps put them all into one advertisement ; 
 and in the end have the luck to get back the five hundreth part of my costs from 
 each of them. Till that end, I am to amuse myself as best as I may, over the out- 
 lay of such cost. 
 
 The Twentieth and Twenty-first Sections make detailed provision for the fy- 
 ling of oppositions by the Defendant's creditors, and others ; that is to say, for the 
 putting of record before the Court, of all objections that any one (claiming lo be in- 
 terested) may be disposed to urge against the Plaintiff's getting back his land, as 
 prayed for. Of those details I need not speak. But I cannot but remark, en pas- 
 santy on the fact that in this my procedure, ray opponent's creditors — every one 
 claiming on or through him — can come in, to embarrass or defeat me. When the 
 question was, as to the taking away of my land, no creditors of mine, or claimants 
 through me, were allowed a word. The obvious idea pervading the whole Bill, is, 
 that the Seignior is no proprietor, has no rights, can have created none, upon his 
 land, given him by the Crown ever so unreservedly ; but that the moment any 
 part has passed through him to another man, (albeit subject to a condition, the 
 non-fulfilment of which is admitted to have wrought a forfeiture,) that man 
 -became its absolute proprietor, and his creditors, and all claimants under him, are 
 to be cared for. Even I, who have a written contract giving me the right to resume 
 it, cannot get it back, but by a most troub'esome and dilatory litigation. Under the 
 law as it stood before the cession, I might have got it in an hour, by an application 
 that might even be (and sometimes was) ex'pavte. It may not be so now. It ought 
 not to be so. My clients do not ask to have it so. But if nothing summary is to be 
 done for them, as of old it was to be, and was, done ; why is everything summary 
 to be done against them, as of old it might not be, and was not 1 
 
 The Twenty-second Section reads as follows : — 
 
 <' XXII. On the day fixed by such Interlocutory Judgment, or on any other 
 " subsequent juridicaj day, the Court shall proceed to order the reunion to the 
 '* domain of the Seigniory in which they are situate, of such lands as ought, 
 *' according to law, to be so reunited, and to the reunion whereof no opposition 
 " shall have been made ; and to declare the Censitaires who took them d litre de 
 '* concession, or who previously held them, to be for ever deprived of all rights of 
 ** property therein." 
 
 If, then, no one claimmg to be interested shall come forward with an Opposi- 
 tion, to make me fight another battle, — if neither Defendant nor any on e else 
 pretend anything against me, — if nothing in anywise untoward intervene, — 1 am at 
 last to have my Final Judgment. 
 
 But — says the Twenty-third Section :— 
 
 <^ XXIII. In any case in which the Court shall maintain any one or more of 
 *' the Oppositions made to the reunion to the domain of the lands the reuion whereof 
 " is so demanded, it shall be the duty of the said Court to order the Sheriff of the 
 ** District to proceed to the sale of the lands or of such of the lands the reunion 
 " whereof to the domain is so opposed, subject to such charges or servitudes as 
 ** may have been established by such Oppositions." 
 
 If any man show the Censitaire to have done any act of a nature to give him, 
 such Opposant, a cl.aim or right over the land — and every such pretension ad- 
 vanced, I must contest at my own cost and risk, unless I make up my mind to let it 
 take effect, — the land is to be sold ; but sold at my expense, for of course the 
 Defendant will make no outlay for such sale. By the Twenty-fourth Section, the 
 Sherifi is to sell in a certain maimer; and by the Twenty-fifth, he is to make his 
 return within a certain delay; but, of course, I am at the expense of all his doings. 
 
84 
 
 The Twenty-sixth Section at last lets me do a something to protect myself, if 
 I can. 
 
 '< XXVI. The Seignior, Plaintiff in the cause, may file in the office of the said 
 *' Prothonotary, at any time between the date of the Judgment ordering such sale 
 ** and the expiration of the two days immediately following the return made by the 
 *•' Sheriff of his proceedings thereon, an Opposition a fin de conserver, in order to 
 " obtain payment of the arrears due to him upon any land so sold.'' 
 
 If arrears are due to me on the land, as presumably they will be, I too may fyle 
 my claim in Court, for payment out of any money, that the Sheriff (after paying 
 himself) may possibly have to pay into Court, from the proceeds of the sale. This 
 is certainly some thing ; but not a great deal. 
 
 The Twenty-seventh Section says :— 
 
 ** XXVII. The said Seignior and the other privileged Opposants, if any there 
 " be, shall be the first paid out of the amount arising from such sale, according to 
 '* the preference of their respective privileges ; the hypothecary creditors shall be 
 *' collocated according to the order and rank of their respective privileges j and the 
 *' remainder of the amount arising from the sale shall be distributed among the 
 " opposing creditors claiming for chirographical debts, at so much in the pound, or 
 " according to the preference ol the privileges they may be entitled to." 
 
 The proceeds of the sale, if any there be, are to be dealt with, that is to say, in 
 common course. I take it for granted, that my costs, as well as my arrears, are to 
 come out of them, if possible. But the worst of the matter is, that, as the land sold 
 is land on which the Censitaire would not do settlement duty, — as it is sold merely 
 because he has not thought it worth while to keep it, or get it kept,— it is ten to 
 one if it sell for the Sheriff's charges. My other costs, and my arrears, are in small 
 danger of being paid. If I get them, I may write myself fortunate ; if not, rather 
 otherwise. 
 
 But there is more behind. The evicted Censitaire may carray his cause 
 through every appeal ; though the evicted Seignior (as we have seen) may not 
 through any. So, to, rnay any defeated Opposant or other party, with whom I 
 may have had to contend. It is only when <* any person" wants my land, that I 
 am to have no appeal. 
 
 And suppose me ever so fortunate ; no second fight with any one, after my In- 
 terlocutory Judgment; no Opposition; no Sheriff^s sale; no appeal. Appeal, 
 indeed, we shall soon see, on the part of the Defendant will be hardly probable. — 
 The land is again mine. But the man I have just evicted, can at once turn round 
 and get it back, again ; may implead me summarily before any one Judge, and 
 force it from me, at a nominal rent bearing no relation to its value, the blank amount 
 which this Bill is yet to fix in that behalf. 
 
 Will a sane man take this trouble and incur this cost, to get back land, after 
 such delay ; w^hen any one may take it from him, the day after? Of course, the 
 thing will never be attempted. No client would think of it. No Counsel could dare 
 suggest it. 
 
 Still, the Twenty-eighth Section reads as though a lurking impression had been 
 entertained, that such a thing might be ; as though it were determined to make 
 assurance doubly sure, that it should not. It runs thus: — 
 
 *' XXVIIT. Nothing in this Act or any other law contained, shall be interpreted 
 **' so as to give any Seignior the right of demanding the reunion to his domain, of 
 " any town or village lot or emplacement, nor of any laud settled and cultivated or 
 " reserved for cutting firewood, ahhough the proprietor should not have house and 
 " home thereon." 
 
 So that really, if any man ever were to do so absurd a thing as to institute an 
 action of this kind, all that the Defendant would have to say or prove in order to his 
 
Ifr 
 
 85 
 
 defence, would be, that he had reserved the Jand in question " for cutting fire- 
 wood" ; and this is to be taken to be that keeping of hearth and home, to which his 
 contract in express terms binds liim, and which of o'd meant (and was at law en- 
 forced as meanin<r) not mere clearing, not mere cultivation, but literal residence 
 upon the land. On the one hand, if, when any man demands my land from me, I 
 answer that it is mine and is not wild land, he has only to reply, (according to the 
 new dictionary which under this Bill will be wanted, to mterpret tlie Queen'a 
 English,) " it is not yours, and it is wild, — because you never alienated it, and 
 *' though cleared, was not cleared by vou." On the other hand, when I bring him 
 before the Court and complain that he does not keep hearth and home, '• oh yes !" 
 he will say, " I do: that is to say, I do not, but I have reserved it for firewood, and 
 " I cut one faggot last year, and shall cut three sticks this." I trust I have not 
 spoken with too much .levity. Sure I am, that I feel none. I feel the matter to be 
 grave enough. 
 
 In one word, the old system gave the Censitaire hardly a chance against 
 the Seignior. It was bad ; bad especially in this. I ask on the Seignior's behalf, 
 for no restoration of any part of it. Under the system proposed by this measure. 
 as such restoration, the Seignior can have no chance against the Censitaire. I 
 have good right, in the interest of all, to protest against it. 
 
 I pass to the Third Part of the Bill ; that which undertakes to treat of mills, 
 water powers, and banality ; and which extends from the Twenty-ninth to the 
 Thirty-second Clauses, both included. 
 
 The Twenty-ninth Section is in the following words : — 
 
 " XXIX. And whereas since the said cession of the Country, divers Seigniors 
 " Proprietors of Fiefs in Lower Canada, have imposed on lands conceded by them 
 *' rents exceeding those at which such lands ought to have been conceded accord- 
 " ing to ihe ancient Laws of the Country, and have burthened the said lands with 
 " various reserves, charges and conditions which impede industry, delay the settle- 
 *' ment of the Country and check the progress of its inhabitants ; ami whereas it is 
 *' just to remedy such abuses — be it enacted, That no Seignior shall herealter be 
 " entitled to the exclusive use of annavigable rivers, except such part or parts of 
 '' the said rivers the waters whereof run through or along the domain reserved, or 
 *« hereafter to be reserved by him, and through or along the lands and lots of land 
 *' acquired, or to be hereafter acquired, by him for his own private use; and any 
 " agreement made between the Seigniorand the proprietor who has the domaine utile 
 '*' of any land held by him d titre dc cens, in any Seigniory whatsoever, with the 
 " view of depriving such proprietor ot the right of building mills, or other manufac- 
 " turing establishments, (autres usines,') is hereby declared to be null ; and every 
 " such agreement shall, to all intents and purposes, be hereafter considered as not 
 " having taken place, whether the same be stipulated hereafter, or made before the 
 '* passing of this Act." 
 
 The reference to excessive rents, is here out of place; and I suppose must have 
 Ibund its way into the clause, by some error of copyist or printer ; and therefore I 
 will not here speak of it. But as respects the remainder of this clause, several con- 
 siderations suggest themselves. 
 
 It is drawn, as though' all that is obnoxious in the Seigniorial Tenure, were the 
 consequence of contracts which Seigniors have insisted on making in contravention 
 of the ancient laws of the ceuntry. Such cannot be the case. The heaviest of 
 the burthens of the Tenure result (independently altogether of contract) from what 
 I may call the Public Law of the Tenure. The lods et ventes or mutation fine of a 
 twelfth part of the purchase money, payable on every sale, the burthen which more 
 than any other presses upon the public, and retards improvement, — and the right of 
 banality, or exclusive privilege of grinding grain at the Seigniorial or Banal Mill, 
 as it here exists and is maintained by our Courts, — are no result ot special contract, 
 but arise out of the la ; the former, out of the old Common Law of the Custom of 
 Paris ; the latter out of the local legislation, for Canada, of the Consul Supeneur de 
 QuebeCj and of the French King. And it is these, which form the comparatively 
 onerous and objectionable part of the Seigniorial sygtem, as it here wxisti. The 
 
86 
 
 mere fact of a farm being burthened with a ground rent of at most a few pence per 
 arpent, is a matter of far less moment, — in fact, a matter of no great moment in a 
 political point of view. And as to the other special burthens and reservations stipu- 
 lated by some contracts, they are practically of still less consequence ; being 
 many of them little more than waste paper, not enforced, nor likely to be. The lods 
 et ventes and banality are what press the most ; and these, as I have said, are not 
 the result of Seigniorial cupudity, but of legal enactment. 
 
 To return, however, from this digression. The true question is : are or are not 
 any particular clauses and reservations, between Seignior and Censiiaire, illegal, — 
 repugnant to Public Law, — so that, although agreed to by the parties interested, the 
 law will not enforce them ? If the law gave me the right to make a contract, though 
 the making of such contract may not perhaps be for the public interest, no man has 
 the right to require afterwards that it be held null. It was a legal, binding contract, 
 when made ; and such it must remain. Farther, the burden of proving that a con- 
 tract is thus repugnant to law and null, must rest with those who assert it to be so. 
 Have they, as regards this present matter, cited any text of law that cfeclares clauses 
 of reservation by a Seignior, null ? Or any Jurisprudence of our Courts, that might 
 be presumed to show the law so to be ? There is no such text of law ; no such Ju- 
 risprudence. — They are characterized as prejudicial to the public. If so, it may 
 be a public benefit to get rid of them ; but in getting rid of them, we have at 
 least no right to punish the one, and to reward the other, of the two parties who 
 originally agreed to constitute them. Take measures now to put an end to them ; 
 put things as they ought to be: but do not say, the public has changed its mind, — 
 what was once lawful, shall be so no longer, — we are going to make a new world, 
 and so doing, we mean to enrich or ruin whom we may. 
 
 The enacting part of this Section proposes to deal only with one description of 
 reserve clause in concession deeds, — that, namely, having for object the reservation 
 from the Censitaire^ of water-powers on non-navigable rivers. All such water- 
 powers, it is proposed to declare to belong to the Censitaire holding the adjacent 
 land ; all clauses to the contrary in the deeds of concession, it proposes to declare 
 null. 
 
 Now the question of the right of property in these minor rivers and streams ia 
 tolerably complex; and its solution in each case presented, must depend on the par- 
 ticular circumstances of such case. It is impossible, in a few lines of an Act of 
 Parliament, to say anything declaratory of the law about them, without doing the 
 greatest injustice to all sorts of people. 
 
 Nothing can be more certain, than that under the old French law, when a 
 Seignior (himself having the droit de peche, or right of fishing, within his Seig- 
 niory) granted land bordering a river, to a Censitaire, if he did not in terms grant 
 also the right of fishing therein, it was presumed that he kept it. The Censitaire, to 
 have the right, had to get it. If his deed did not show that he had got it, the 
 Seignior was understood to have retained it. I am not saying that this was as it 
 should be. I am not urging it as a doctrine to be now practically enforced, as of old 
 it was with all the rigor possible. I cite this rule of the old law, merely as showing 
 beyond a doubt, that by law, the Censitaire who held the land did not as of course 
 hold any right approaching to that of property in the water running past it, — had 
 not even the right to fish in surh water. The correspondence between Messrs. 
 Beauharnois and Hocquart, and the French Government, of the years 1734 and 
 1735, (pages 31 and 32 of the Fourth Volume so often cited,) on which I have al- 
 ready remarked^ (if authority were wanting) is decisive of this point. The Governor 
 and Intendant, it will be remembered, wished to oblige the Seminary to grant this 
 right of fishery to all settlers ; but the King would not so far change the law, as 
 at all to fetter the free action of the Seminary in that respect. 
 
 A constant succession of legal decisions in the Province, also attest the rigor 
 with which this rule was maintained. Two Ordonnances or Judgments, in par- 
 ticular, I may allude to, rendered by M. Begon, the one in 1723, the other in 1730, 
 (see pages 83 and 133, of the Second Volume laid before Parliament,) in the mat- 
 ter of a somewhat obstinate dispute between the Seignior of Portneufj and two of 
 bis Censitaires. The Seignior complained of two of his Censitaires whose deeds gave 
 
87 
 
 them no right to fish in front of their lots ; alleging that they did so fish, and yet 
 would not pay him the yearly rent which he was willing to take for the right. 
 They replied that though the right had not been expressly granted to ihem, their 
 neighbours all had it, and they ought to have it too. But the Intendant held them to 
 have no such right ; and at once condemned them, either to pay the Seignior or ab- 
 stain from fishing. Some time after (in 1730) we find the same parties again 
 brought before the same Intendant ; the Seignior sotting forth, that they had of late 
 refused to pay the rent ordered in 1723, that he had thereupon leased the right of 
 fishing in front of their lots to another party, and that they persisted in fishing and 
 otherwise molesting such party. They were at once condemned, on pain of a heavy 
 fine, to abstain from all fishing and to leave the Seignior's lessee in exclusive 
 enjoyment of his right.— In 1732 and 1733, again, two other Judgments in the same 
 sense (see pages 150 and 154 of the same Volume) were rendered with respect to 
 certain disputes between the Seignior of St Fran9oi8 on lake St. Peter, and a num- 
 ber of his Censitaires. The title of that Seigniory carries it out a quarter of a league 
 into the Lake. The Seisrnior insisted on his exclusive right ot fishing there, and it 
 was maintained against his CensitaireSyXhRt none but he, and those to whom he should 
 specially grant the right, could fish there; that he could even lease the right to a 
 third party, to the exclusion of the Censitaires whose land bordered on the Lake, 
 and who were contesting with him the point of their right to fish without his leave. 
 —Later still, in 1750, only ten years before the cession of the country, (see page 
 Ixxxix of the Second Volume of the Edits et Ordonnances) the Censitaires of Sorei 
 were forbiden to fish, under heavy penalty, unless pursuant to written permission 
 from the Seignior; for which of course they had to pay. 
 
 I allude to these cases, not because there is at this day any difliculty about 
 the right of fishing ; but because it is here proposed to give to every man, what- 
 ever the terms of his grant,— though it be thereby expressly stipulated, even, that 
 he did not take the water,— that the water is his ; that the stipulation to the con- 
 trary is null ; that the man who said, I take the land without the water, who ac- 
 knowledges that he never acquired the water, shall notwithstanding have it given 
 to him; and that the man who with the consent of his co-contractant reserved it for 
 himself, shall not be suffered to keep it. Was such a reservation contrary to 
 law? The law holding, that even in the absence of any stipulation, a grant of 
 land conveyed so little control over the water, as not to give the grantee so much 
 as a right to take fish in it ? If it be said, indeed, that the owner of the land ought, on 
 grounds of public policy, to be the owner of the water in front of it, or to have the right 
 (on payment of the fair price) to become so, I can understand the proposition. If 
 that is to be adopted as a new principle of public policy, let it be so called. Con- 
 trive the machinery for effecting the required change ; but do not declare away the 
 vested rights of parties, whose relative position, as the law stands, admits of no 
 shade of doubt. 
 
 I am of course aware, that there is a certain amount of controversy, as to how 
 far the Seignior is owner of tliese streams. In the case of Boissonnault vs. Oliva, 
 (Stuart's Reports, page 564,) where, however, the precise point was not material 
 to the decision given, the learned Judge who stated the Judgment of the Court, 
 spoke of the waters of non-navigable rivers as belonging to the Seigneurs Haut 
 Justiciersy and hinted that as the Seigniors of Canada were practically no longer 
 Haut Justiciers, the Crown alone dispensing all Justice, the Crown had become 
 the owner of all these small streams. The doctrine, that the waters of the smaller 
 rivers were in France the property of the Hauls Justiciers , is undoubtedly the opin- 
 ion of many writers of high mark : but many again, also of high mark, think difter- 
 ently. No question arising out of the old law of France, has perhaps been contested 
 more keenly ; or at this time more divides the opinions of the able men who have 
 examined it. As to which side has the weight of authority, or the abstract truth of 
 the case, I would not wish (referring to the subject as 1 do, incidently) to be under- 
 stood as venturing to offer a strong opinion. But certainly, the most satisfactory 
 work I have been able to find on the subject, that of Championniere, holds that 
 these rivers were the property of the Seignior of the Fief, or Seigneur Feodal, the 
 true owner of the land ; and that the Seigneur Haut Justicier was no owner either 
 of the land or water, but merely a grandee of more or less importance, ^vho owned 
 the right of levying certain dues (^droits de Justice) on persons within his jurisdic- 
 tion, and of dispensing justice — a profitable employment in the olden time— within 
 
88 
 
 limits more or less extensive, among such persons. In France, the Haut Justider 
 was not necessarily the holder of any landed Fi<5/ whatever ; and where he was, the 
 territorial limits of his Justice and of his Fief were constantly not the same. It 
 became thus a question, whether the ownership of the non-navigable streams was 
 ia the Seignior who held the Justice, or in the Seignior who held the Fief. The 
 Crown at an early date had made good its claim to be held the proprietor of all 
 navigable rivers, as a necessary consequence of its rights as being what one may 
 call the supreme Justiciar, charged with the exercise of all haute police and juris- 
 diction over them. And the Hants Justiciers on the like ground claimed a like pro- 
 peity in the minor streams. In some parts of France, and at some periods, their 
 claim was maintained ; ia other localities, and at other times, that of the Seigniors 
 of the mere Fief wsis held good against them. No one ever thought of the doctrine, 
 that the stream in controversy, could belong to a Censitaire, unless by reason of 
 some unequivocal grant made in his favour by the Seignior (whichever it might be) 
 there and then held, by presumption of law, to be such owner. 
 
 Since the abolition of all feudality in France, the question has there assumed 
 a new aspect ; but the old controversy remains unsettled. On the assumption that 
 the streams belonged to the Lord of th.e Fief, they must have passed, under the le- 
 gislation which destroyed the Seigniorial Tenure, to the Censitaire of the land ad- 
 joining. On the assumption that they were the property of the Lord of the Justice, 
 they must have passed to the State. As of old in France, the State has -its vant- 
 age ground, in all controversies with the individual. But, notwithstanding this, 
 the controversy cannot be said to be yet settled either way. 
 
 In Canada, the state of things has always been, in these respects, materially 
 different. The Seignior, grantee of a Fief was not always constituted a Justiciar ; 
 though he was so in most cases. But the Justicier at least always held a Fief, and 
 his Justice and Fief were co-extensive. Every Seigneur Haut Justicier was. 
 therefore, in one quality or other, originally the proprietor of these waters, as well 
 as of the land, within the limits of his Fief. Of course the navigable rivers (though 
 in some grants of early date, expressly given away) were by virtue of the Public 
 Law, and have remained, the property of the Crown, whether of France or of Great 
 Britain. Those here who hold that the non-navigable streams were originally the 
 property of tiie Seignior in his quality of Justicier, may hold further (as was hinted 
 mtlie case of Boissonnault vs. Oliva) that by reason of the Crown aione exercising 
 jurisdiction of any kind under our Public Law, such right of property has vested 
 in the Crown ; though such inference, by the way, admits of grave controversy. 
 But even admitting such inference, we come to the conclusion that the Crown, and 
 not the Ctnsitaire must be the true owner of these waters. If, on the other hand, 
 there be any flaw in this reasoning, — if the property went to the Seignior as grantee 
 of the Fief, and not as grantee of the Justice, — or if, going to him in his latter 
 quality, it be not held to have passed from him in consequence of his merely losing 
 the rights of jurisdiction that were once attached to it, the Seignior, and not the 
 Crown, is such owner. On either supposition, the Censitaire (unless his grant be 
 in such terms as in law may be held to pass title to him) is not such owner. 
 
 But the case does not even rest here. Numbers of the grants to Seigniors, as I 
 have had occasion to observe already, in express terms give them the property of 
 certain rivers, or of all rivers, in their Fiefs. I have only to-day had placed in my 
 hands the original document by which the French king ratified the grant of the Sei- 
 gniory of Rimouski; and it in so many words grants <'the river Rimouski" and so 
 much land adjoining it. There are some scores of such grants ; and scores of 
 others that give rivers and streams in general terms : none, that imply the idea of 
 not giving them. Now, in cases where the grant of streams is mentioned in the 
 instrument of concession, it must be clear that the property in such streams granted 
 was not given as an incident of the Justice, but as part of the Fief. Indeed, it was 
 sometimes so given, where no Justice at all was granted. There are certainly cases, 
 therefore, and those not few, where it is impossible to hold the Seignior's right over 
 streams to have ever been that of the Justicier — where it carmot have passed to the 
 Crown. — where it must be his, unless indeed (and this is matter of legal inference 
 from the deeds of concession he may have granted) he be found to have parted 
 with it to his Censitaire. 
 
89 
 
 In any and every supposable case, however, the fact is patent, that the Censi- 
 iaire, unless his deed — interpreted as the law shall bo found to interpret it — has 
 given them to him, is not the proprietor of the streams. And whether, in particular 
 cases, the Crown can claim to be such proprietor, or not, it is at all events not for the 
 Legislature to step in and say ; this man, who has no right to the water, shall 
 have both land and water, — and that man, to whom both were given, shall have 
 neither. On principle, you might as justly say, that the land on each side of a 
 stream must belong to the owner of the stream, as that the stream must belong to 
 the owner of the land. 
 
 I am not without high local authority, in taking this view of this part of my 
 case. I have had placed in my hands, a public document — an authentic copy of 
 iin order in Council, of the Executive of this Province, bearing date as late as 1848, 
 and having reference to this question, as it then arose for decision by government 
 within the Seigniory of Lauzon, a property belonging to the Crown by private title. 
 A Censitaire holding land in that Seigniory, but who did not own the water power 
 adjoining his lot, — or rather who had acquired from the former Seignior, one water 
 power only, out of two that existed there, with a mere permission subject to the 
 {Seignior's revocation to use the other for certain special purposes, — had applied for a 
 commutation of tenure. The question presented itself, whether by commuting the 
 tenure he would become the proprietor of both water powers, that is to say of the 
 stream in its entirety. If so, the whole value of the stream would have to be taken 
 into account, in fixing his commutation money. If not, not. This question, in the 
 document I speak of, is fully and ably treated. It is therein laid down, that non- 
 navigable streams clearly belong either to the Seigneur Haul Justkier or to the 
 Seigneur Feodal ; that on either supposition, this stream had become the property 
 of the Crown ; that this Censitaire was wrong, if he thought that he could become 
 the proprietor of the other water privilege, by merely commuting the tenure of the 
 land ; ihat therefore, the value of such other privilege was not to be taken into 
 account in estimating his commutation fine ; and lastly, that (to avoid the risk of a 
 doubt as to the intended efiect of his commutation) a clause should be inserted in 
 the deed of commutation, expressly declaratory of the fact, that the water power 
 in question remained the property of the Crown. 
 
 That decision was a right one. The Seignior who has once acquired the 
 Btream, and has not parted with it, has the right to hold it as his own. No man has 
 the right to take it from him. You may, if you will, provide lor its being taken from 
 him, as you may for any other property being taken iiom him, for any sufficient end 
 of public policy; but he must be paid for it, and paid its full value, when it shall be 
 so taken. — It is not to be taken first; and he left alterwards to prove the fact and 
 amount of loss thence resuUing, and to pray lor an uncertain indemnity, which he 
 may very likely never succeed in getting. 
 
 Yet this is what this section proposes to do, as to this matter. 
 
 The Thirtieth Section proceeds to the kindred subject of the right of banality ; 
 and reads thus :— 
 
 " XXX. The right of the Seignior to require the Censitaire to carry his grain 
 <* to the banal mill to be there ground, on paying lo the Seignior the ordinary toll 
 ** for the grinding of such grain, shall hereafter he considered as applying to no 
 " other grain than such as is grown on the lands held d tilrede cens in i\ni Seigniory 
 " in which such banal mill is situate, and is intended for the use of the family or 
 ** families occupying the said lands." 
 
 Now this right of banality, I may say without doubt, (for I am confirmed in 
 so saying, by all the jurisprudence of the Iniendants and Courts before the cession, 
 as well as by that of the Courts since,) exists in Canada by virtue of the law, and 
 independently of contract between Seignior and Censitaire; athoughitdid not exist 
 in France within the local range of the Custom of Paris, unless by virtue of such 
 contract, or other sufficient title ; and it involves the right on the part of the Seignior, 
 to prevent any other mills than his own, from being put or kept in operation within 
 the limits of his banality, — to prevent any miller beyond those limits from beating 
 up for custom within them,— and lastly, to oblige his Censitaires to bring their 
 
90 
 
 wraiii for grinding at his mill, on certain fixed terms, as to price and otherwise. 
 Under the Custom of Paris, I have said, this right did not exist at Common Law ; 
 but it could always be enforced, and was enforced, to the letter, whenever any 
 Censitaire was shown by his deed to have agreed to it; and it could even be en- 
 forced, and was enforced against all the world, whenever the Seignior could show 
 what was called a " tiire xalahW^ — a sufficient title to warrant such enforcement. 
 I do not here go into the detail of what constituted such litre valable ; the consent 
 or recognition of such and such a proportion of all the Censitaires^ and so forth. 
 The only important point, here, is the fact, that in Canada, the state of things, as 
 existing under the Custom of Paris, was altogether changed, by two leading ^rre/s 
 of a legislative character. The first of these was an Arret or decree of the Conseil 
 Superieur de Quebec (a body undoubtedly capable of making such a law) under 
 date of the 1st of July, 1675 ; and which is to be found on page 225 of the Second of 
 the Volumes laid before Parliament. This Arret ordained, " that all mills, whether 
 ** water mills or wind mills," — by the Custom of Paris, no wind mill could be pre- 
 sumed banal — " which the Seigniors shall have built or shall cause to be built here- 
 ** after, shall be banal." The other wag an Aro'et of the King himself in his Conseil 
 d'Etat or Privy Council, under date of the 14th of June, 1686, (printed on page 
 227 of the same Volume,) which ordained ^' that all Seigniors, possessing Jiefs 
 " within the limits of the said country of New France, shall be held to cause to 
 " be erected banal mills within a year after publication of the present Arret : and, 
 " the said delay expired, in default of their having so done. His Majesty permits 
 " any persons, of what rank or condition soever, to build such mills, attributing to 
 *•' them to that end the right of banality, and forbidding all persons to disturb them." 
 By force of these two Arrets, every Seigniorial mill was constituted a banal mill ; 
 and every Seignior was declared to have the right of banality, in respect of such 
 mill. He might lose it, it is true, by non-user ; and in such case any one else 
 might acquire it. But unless he did so lose it, it was by law his. 
 
 And as to his losing it, I should perhaps say a word or two. To any one not 
 conversant with Lower Canadian law, the second of the two Arrets I have read, 
 may seem to imply that a Seignior who should not have built within the year after 
 its promulgation, would ipso facto lose the right. But such is not, and never was 
 held to be its meaning. Like the first of the two Arrets of Marly, it merely enjoins 
 a duty— so limiting to a certain degree a pre-existent right which it admits ; and 
 after such injunction, it provides a remedy against the possible case of failure to 
 obey. That remedy consisted, in the right to be given to any one else to build 
 mills, and so acquire the banality of the Seigniory, to the exclusion of the Seignior. 
 Till this should have been done, the Seignior, though he might have no mill in 
 operation, retained his right to have such mill (whenever put into operation) held 
 a banal mill. And any other person, in the meantime wishing to avail himself of 
 the remedy provided against the case of the Seignior's neglect to build, had first to 
 summon the Seignior by legal process, so as to establish judicially the fact of his 
 being in default, and thereupon to obtain a judicial sentence forfeiting his right, 
 and attributing it to himself the Plaintiff. 
 
 It has been argued, with much ingenuity, that the right of banality, as intro- 
 duced into Canada in 1675, did not comprehend (as in France, wherever existent, 
 it undoubtedly did) the right to prevent the working of any other mills in the Seig- 
 niory. The Arr^t of 1675, after the words I have already cited, declaratory that all 
 mills built or to be built by Seigniors ** shall be banal", proceeds thus : — *.*And 
 ** thereupon, that their tenants who shall be bound by the contracts of concession 
 *' that they shall have taken of their lands (qui se seront obliges par les iitrcs de con- 
 *' cession quHls auront prisde leurs terres) shall be bound to take their grain there to 
 " be ground, and to leave the same there at least twice twenty-four hours, after which 
 '« it shall be lawful for them to take the same away if not ground, and to take it 
 '' elsewhere for grinding," &c. And it has been urged, that the only banality 
 granted here, is a banality granted against Censitaires who by express stipulation 
 to that effect in their deeds should have subjected themselves to it ; that the right 
 was therefore not an absolute right of the Jief, but a mere right to enforce a certain 
 contract, if made. On which latter supposition it is further urged, that it could 
 not go the length of preventing any one not bound by such contract, from setting 
 up a mill within the Jief. This view, however, has never been maintained judi- 
 cially ; on the contrary, in the last case decided upon the subject,— that of Monk 
 
91 
 
 vs, Morris, (see pa?e 3 of the Third Volume of the Lower Canada Reports,) decid- 
 ed quite lately by the Superior Court at Montreal, — though wged with the utmost 
 ability by the Defendant's counpel, it was over-ruled by the Court. And all former 
 decisions, before as well as since the cession of the country, are against it. And 
 with good reason. For, if such were the meaning oi^ the Arret, it had — so to 
 speak — no meaning at all. By the Custom of Paris, any Censitaire who had bound 
 himself to grind at the Seignior's mill, was so bound, whether the mill was or was 
 not banal. To say that a mill was banal, was to say a great deal more than that 
 Censitaires, thereto bound by special contract, must go to it. The mill need not 
 be banal for that. The word banal was a word, the meaning of which was well 
 known, and of wide application. There were in various parts of France, banal 
 rights of various sorts — banal ovens, banal wine-presses, and so forth. And the 
 term everywhere imported the ban, prohibition, or exclusion of all rivalry within 
 the territorial limits of the banality. It everywhere imported also the holding of all 
 who came within its range (irrespective altogether of contract) to the obligations 
 it imposed. No Censitaire within a banality could escape from it. The latter part 
 of this Arrtt of 1675 regulated certain details of procedure and so forih, as regarded 
 those obligations. But it could not, and did not import ihe freedom of any person 
 bound by a deed of concession, — that is to say, of any Censitaire or holder of land 
 under such a deed, — fiom such obligations. On the contrary, its very letter imports 
 precisely the reverse. 
 
 Now, the clause of this Bill which I read last, this Thirtieth Section, does not 
 indeed in terms profess to abrogate this right, of exclusion of other millers from a 
 Seigniory. But — and more especially as read in connection with the preceding 
 Section— it tacitly imports such abrogation. By the Twenty-ninth Section, the 
 Seignior's water powers are declared to belong to the Censitaire^ and all agreements 
 by the Censitaire to the effect that he will not build mills on his land, are declared 
 null. By this Thirtieth Section, the right of banality is spoken of as though it 
 were a mere right " to require the Censitaire to carry his grain to the banal mill." 
 Such enactment and recital once passed, it is clear that any one could build any 
 sort of mill in any Seigniory ; that this part of the existing right of banality would 
 lost to the Seignior. 
 
 IT 
 
 And it is obvious to remark, that this is really the only part of his right worth 
 keeping. It is that, through which alone he can practically be said to have any 
 right at all. In former days. Seigniors used to sue Censitaires, to oblige them to 
 grind at their mills, or pay the toll of what they ground elsewhere. But those 
 times are past. It is worth no man's while so to sue now. And no man does so 
 sue. The Seignior's only hold is through his ownership or reservations of water 
 powers, and his right at law to stop rival millers from competing with him. This, 
 it is now proposed most effectually to take from him. It requires to be paid for, 
 before it is so taken. 
 
 This clause goes even further. It would give the Censitaire the legal right to 
 evade the grinding of any of his grain at fhe so called banal mill ; for he would only 
 have to sell his own grain and buy other, or even to exchange it away; and he could 
 then say, the grain you claim to grind, is no grain grown here for my family, — 
 what I raised here was not so intended, and I have parted with it, — this that I am 
 using, I got elsewhere. The evasion is of small practical moment; because such 
 suits are never likely to occur. But it shows the spirit and tendency of the Bill, — 
 that, besides giving every one the right to build rival mills to mine, it should thua 
 go on to give every one the power of evading the nominal obligation which it 
 professes to leave in force, to give my mill a certain measure of preference. 
 
 I repeat; I am in no wise contending for the maintenance of banality in any 
 shape. I might, of course, say with truth, that the banal mills of Lower Canada 
 grind at a considerably lower rate than obtains any where in the country, beyond 
 the limits of the Seigniories; and that they do their work well, to ihe satisfaction of 
 those who use thera. Indeed, the Seigniors can be compelled at law to keep 
 them in good o-der ; are under stringent legal ability in respect of rate of toll, a nd 
 quality of grinding. But I have nothing here to do with all this. I am defend ing 
 no part of the existing system. I only insist, that its pecuniary advantages to my 
 clients, are not to be taken from them piece-meal and by indirection, leaving them 
 
 I 
 
92 
 
 to prove their past existence and value, and beg for tardy, inadequate, uncertain 
 compensation afterwards. 
 
 I have not quite done, however, with tjiis matter of banality. The Bill con- 
 tains two more Sections, the Thirty-first and Thirty-second ; which I must read, 
 leet I should bethought to paraphrase or represent* them otherwise than as they 
 are : — 
 
 *'XXXI. Every Seignior having more than one hundred Ceiisiiaires holding 
 " lands in his tensive, and who, after the expiration of two years from the passing 
 ** of this Act, shall not have constructed at least one ba?ial mill for the grinding of 
 " the grain in his Seigniory, and every Seignior who, after the expiration of 
 " two years from the period in which there shall be more than one hundred Censi- 
 " taires holding and settled upon lands in his ccnsive, shall not have constructed 
 »* such mill, shall, as well as his heirs and representatives for ever, forfeit his right 
 <* of banality in such Seigniory ; and it shall be lawful for any person to construct 
 '* one or more mills for the grinding of grain in the said Seigniory, and to grind or 
 *•' cause to be ground in any such mill all grain brought thereto, without being 
 '' liable to be disturbed by the Seignior as such, in the enjoyment of the said rights ; 
 " but no such person shall be entitled to exercise the right of banality in respect to 
 •* any mill so constructed. 
 
 '^ XXXII. And whenever a banal mill shall not be in proper order, or shall be 
 ** insufficient for the grinding of grain belonging to the Censitaires of the Seigniory, 
 *■* or of the part of the Seigniory in which it is situate, any Censitaire settled upon 
 *' any land in such Seigniory shall be entitled to sue the Seignior of such Seigniory 
 " before the Superior Court sitting in the District in which such mill is situate, for 
 ^' the purpose of obliging him to repair such mill, or to place it in such a state as 
 *< will make it sufficient for the wants of the Censitaires ; and it shall be lawful 
 " for the said Court, to proceed and give such Judgment in every such action, as to 
 " law and justice shall appertain." 
 
 The right of banality has been cut down to a shadow ; made valueless to the 
 Seignior. His water-powers are taken from him. Every one may build mills to 
 compete with his. No one need prefer his mills to any others. But they are still 
 ironically called banal mills. And enactments of regulation are proposed as to 
 such mills hereafter to be built; as though it were possible any should be. And 
 further enactment is proposed, to make it clear that the Seignior's obligations as to 
 his existing mills are in no wise to be abated. Banal in nothing but name, for any 
 use he is to have from them, his mills are to be every whit as banal as they ever 
 were, for all purposes of annoyance to him by any Censitaire. With no hold lelt 
 to him upon his Censitaires^ every one is to have firm hold of him. 
 
 Again I say, all this is of a style of legislation that cannot be. 
 
 We arrive at the Fourth Part of the Bill ; that which treats of honorary rights, 
 pre-emption, (retrait,) rents and hypothecary privileges; extending firora the 
 Thirty-third to the Forty-second Sections, both included. 
 
 On the Thirty-third Section, which proposes to abolish all Iionorific rights of 
 Seigniors, I need make no comment. My clients will be happy if, abandoning 
 ihern — such as they are — they can but secure the common immunities, as regarda 
 property and personal rights, of all others their fellow subjects. They ask only, in 
 all respects to have the same measure of right dealt forth to Censitaire and Seignior 
 equally. 
 
 The Thirty-fourth Section is as follows :— 
 
 " XXXIV. The right of conventional pre-emption {reirait conventionnel) 
 '« shall not be exercised in respect of any immoveable property sold under a writ 
 " of execution, (par decret,) or other judicial authority, and it shall not be exer- 
 " cised in the case of any such immoveable property being sold in jiny other man- 
 " ner than by judicial authority, unless the Seignior prove that the eaid sale is 
 '< tainted with fraud." 
 
93 
 
 To part of this clause, I have no objection to offer. That property be not sub- 
 j 'ct to retrait, when publicly sold under process of law, is an enactment of which 
 my clients would not be disposed to complain. The remainder of the clause, 
 however, they do complain of, strongly. 
 
 To make the whole matter clear to Members of this Honorable House, not 
 conversant with Lower Canadian Law, I ought, however, to go into some explana- 
 tion of what this retrait is. By the Custom of Paris, when land has been granted 
 d cens, it is held subject to payment of a rent — the rent stipulated in the deed — 
 which rent, or at least that part of it designated as the cciis properly so called, car- 
 ries with it lods et rentes ; or, in other words, entitles the Seignior to a fine of one- 
 twelfth of the purchase money, whenever the land shall be alienated by sale or 
 other contract equivalent to sale. The same kind of due accrues to the Superior 
 Lord, or Seignior Dominant, upon land by him granted en fief ; but the fine in that 
 case is much higher. Land granted en fief is charged with no annual feudal due 
 payable to the grantor; and for that reason among others, is more heavily burthened 
 as regards casulil dues. The mutation fine on its sale, is fixed by the same Custom, 
 at the Quint or fifih part of the price. 
 
 Historically, no doubt, both these fines had their origin in that uncertainty of 
 tenure, which (as I have observed) once characterized both kinds of grants. The 
 holder had no right no alienate, without his Lord's leave, the Lord — owner still of 
 the land granted — being entitled to insist on having neither Vassal nor Ce'sit ire 
 on his land, whom he might not trust or like. In process of time, as the practice 
 of allowing such .alienation grew into a right, payment came to be settled by usage, 
 as the price of the Lord's consent. Partly as a remnant of this old right of pre- 
 venting alienation, and partly as a means of preventing fraud as to the amount of 
 the mutation line, the Custom of Paris gave the Lord, the right, upon the sale of a 
 Jief held from him, either to come in for the Quint or to say, 1 am not satisfied as to 
 this sale, and decline to take this buyer for my Vassal ; instead of accepting the 
 Quint offered me, I take back the fief; here is the amount of what you call the 
 purchase money, with that of your reasonable expenses; and now, thej^>/is mine. 
 This retrait feodal was of common right throughout France. And many of the 
 Customs gave the Seignior the same right, in reference to land held of him a cens ; 
 so that when the Censitaire sold it, the Seignior might in just the same way exercise 
 what was called the retrait roturier. The Custom of Paris, however, did not ^ive 
 the Seignior this latter right, as a ihing of course ; but it did not at all prevent him 
 Irom stipulating it in his grants made en censive. Whenever he did so stipulate, he 
 enjoyed the right. And such stipulation was of course, common enough. 
 
 The obvious value of the stipulation, as a protection against fraud, — more 
 especially where, as was the case in Canada, lands were commonly granted low, 
 and Seigniors looked for their future wealth mainly to the proceeds of their banality 
 and lods^ to accrue thereafter as the land should acquire value, — made the stipula- 
 tion here, from the earliejt period, an almost universal usage. And such it has con- 
 tinued ever since. 
 
 The right so stipulated is commonly termed, as in this section of the Bill, that 
 of the *^ retrait conventionnel,^^ ox retrait stipulated by contract. And it is, precisely 
 what this designation imports. 
 
 Now, this Section first propoi-es to enact, that when land en cwszre is sold under 
 judicial authority, this stipulated right shall not be exercised. The contracts 
 establishing it make no spch exception. But at the same time, as the publicity of 
 judicial sales must always enable the Seignior to guard against fraud by bidding at 
 the sale, the right of retrait afterwards, is not one that he ought on equitable 
 grounds, to have. And I know of no Seignior who would care to object to its being 
 done away with, in that case. 
 
 But the Section goes much further, it would enact, that though it is matter 
 of binding contract that this right is mine, 1 am not to have it, to any practical use 
 whatever. I am not to exercise it, unless I prove the sale fraudulent. Why, if I 
 can prove fraud, I can of course at law have my lods et ventts, from the buyer, cal- 
 culated on the value of the land-— 'its true price. Nine times out of ten, it would 
 
 I 
 
!>4 
 
 belter suit me to have that payment, than to buy in the land. Besides, the end for 
 which I made the contract, was to guard against fraud that I might feel sure 
 enough of) but could not prove. Nine times out often, I should very likely fail to 
 prove the fraud ; however sure I might be that the price stated was a fraud upon 
 me. This retrait is the only reliable protection I can have. I stipulated it, law- 
 fully. It is my legal right.— Why is it to be taken away ? 
 
 Is it said, that like others of my rights of property, it is a kind of right, which 
 had better not be ? Take it, then ; but indemnify me first, for its loss. I have no 
 right to object, I do not object, to any changing of the law for the public good ; but 
 I protest against such changes involving me in ruin. 
 
 The Thirty-fifth Section carries the powerof repudiation of contracts as regards 
 this matter, further still. It reads — 
 
 "XXXV. Any sum of money, or other valuable thing, which, after the passing 
 " of this Act, shall be paid or given to any Seignior, either directly or indirectly, 
 " to induce him to refrain from exercising the right of retrait in the case of any 
 *' sale or mutation efl'ected within his censive, shall be recoverable, with costs, by 
 " action before any Court of competent jurisdiction." 
 
 Conscious of fraud, fearful of my suit — whether for full lods et ventes, or for the 
 exercise of my retrait — the parties indemnify me. I am satisfied ; so too are they. 
 But this Bill is not. It puts it into their power to recover back from me the pay- 
 ment they have made, with costs. 
 
 I must sue ; must risk loss of costs, and more, in an action to prove fraud. If 
 I do not ; if I let the party pay me, without the cost and discredit to himself, of 
 such suit ; I give him the power to mulct me in costs for my folly, in a suit to get 
 back his money. 
 
 I find it hard to think of such a clause, as part of a seriously proposed enact- 
 ment. Its irony is too cutting. 
 
 The next following Sections, the Thirty-sixth and Thirty-seventh, are clauses 
 of extreme importance ; and again, extremely open to objection, as injuriously 
 affecting my clients' vested interests. They read as follows : — 
 
 '* XXXVI. No Censitaire or occupier ot land in any Seigniory conceded before 
 " the passing of this Act, except building lots in a Town or Village, shall be 
 " required to pay as an annual seigniorial rent, to fall due hereafter, any sum of 
 " money or other value exceeding the sum of two pence currency for each super- 
 " ficial arpent of land occupied by him a iitre de cens ; notwithstanding any sti- 
 " pulation to the contrary made by himself or by his predecessors. 
 
 "XXXVII. All seigniorial dues payable annually in personal labour (corvees^) 
 " grain or otherwise than in money, shall hereafter be paid in money,' at the price 
 '^ at which the same shall be worth at the time the said rents shall fall due, and 
 " shall be reduced to two pence currency for each superficial arpent of the land 
 ** upon which the same shall be charged, in the same manner as rents payable in 
 " money." 
 
 By a former clause, the Fifth, — as I have shown, it is proposed to fix a blank 
 price as that at which I must part with my lands not as yet conceded. That, at all 
 events, though affecting my vested rights, was in show a project of prospective 
 legislation. It purported to tell me the terms on which I was to be allowed, or 
 rather forced, for the future, to deal with what I claim to hold as my own. But 
 here are clauses referring to land that I have parted with upon terms long ago 
 established, by contracts then freely made under legal sanction. Those who then 
 so dealt with me, took such land, engaging to pay me a yearly rent of four pence, 
 six pence or perhaps a shilling, per arpent ; perhaps they agreed with me to pay 
 in wheat, for tlie express purpose that the rent, being made payable in a kind of 
 food, the chief support of human life, should never thereafter materially change in 
 value. It is now proposed, by law to tell me, that tliough such was our contract 
 
If 
 
 95 
 
 1 shall not have the benefit of it. I am not to get more than two pence currency, 
 payable in money, per arpent, yearly from this day for ever. And on what pre- 
 tence ? Under tlie French regime, it is said, few rents exceeded in amount, what 
 was then the money value of a single penny currency, per arpent ; though in fact 
 pome, by the way, did. Well, however that may have been as matter of fact, I 
 have at least shown that there never was a maximum rate, fixed by law, beyond 
 which it was illegal to stipulate. I have, even shown, on the contrary, that in 
 very truth as a general rule, every man in those days, as regarded these stipulations, 
 did just what v;as right in his own eyes ; that there were about as many diflerent 
 kinds of bargains made, as there were diffeiences of disposition on the part of those 
 who made them. Since those times, land has become much more valuable. 
 Some Seigniories were not granted till after the cession ; a good many were gran- 
 ted a very short time only, before it. There are Seigniories, little* or no part of 
 which, under what I may call the police regulations of the French Government, 
 was suffered to be sub-granted before the cession. Many at that time had hardly 
 a settler on them. Since then, what has been the course of the Government and 
 Legislature and Courts of Law, that Parliament should now be called upon to 
 reduce the rates at which I or my predecessors may have sub-granted any portion? 
 of our property ? If, in old time, i he control of the Intendant would at all events 
 have tended to keep down our rates, it at least tended to force men to take more 
 of our land than they otherwise would have done ; and so would have helped off 
 our land sooner, and made it sooner valuable to us. If granted years ago dt lower 
 rates, we should ever since have been in receipt of revenue from it, casual as well 
 as fixed. As the case has been, from the date of the cession, enormous and most 
 improvident grants of land in free and common eoccage have been constantly going 
 on. Great difficulties — not precisely legal difficulties, to be sure, but still real 
 difficulties — have been thrown and kept in the way of extending settlement in the 
 rear of all the Seigniorial country. The emigrant population irom the old world 
 were drawn by a variety of considerations to the free and common soccage lands 
 of their countrymen. The French Canadian population would not push back into 
 the forest, without their churches and Cures. Instead of being driven back, as of 
 old, they were kept under special attraction, in their front settlements, by the 
 singularly unwise policy which long discouraged and retarded the establishment of 
 new parishes, the buildini^ of churches, the orderly settlement of the clergy of their 
 faith, in the rear portion of what was professedly the land reserved for their especial 
 settlement. In the meantime, while much of my land has thus lain unproductive, 
 the value of money has been falling, and the value of land rising. My predeces- 
 sors and myself, left free to make our bargains with whom we would, and as we 
 would, have contracted with others equally free, and on terms contravening no 
 law whatsoever, past or present. By what show of right aie such past contracts to 
 be touched ? 
 
 If touched at all, on what show of reason are they to be cut down to the mea- 
 sure of this two-pence currency per arpent ? If the two sols said to have been 
 seldom exceeded a century ago, cannot now be maintained as a maximum for 
 contracts of yesterday, the process of doubling such two sols does not give us an 
 amount, according to the values of these days at all equivalent to the two so/s of the 
 eai 1712 or 1730. 
 
 Besides, with what pretence of right, fix a maximum in money, at all ? 
 Because no one knows what may be the real value of two-pence currency, a few years 
 hence 1 Because the value of money is just now changing more than anything else 
 whatsoever ? A bushel of wheat will go as far to sustain human life, fifty or sixty 
 years hence, as now. But two-pence currency in money ! Who knows what that 
 may be worth, — even a few years hence ? When men have freely bargained for 
 payment in kind, of set purpose to avoid this risk ; Avhat pretext can there be, for 
 applying to their conventions that very money rule, which they had a right not to 
 adopt, and deliberately did not adopt, as the rule of their transaction ? 
 
 True, the change is one to cause heavy further loss to my clients. But is that 
 reason enough ? 
 
 The Thirty-eighth and Thirty-ninth Sections propose to enact as follows :— 
 
96 
 
 '< XXXVIII. No sale under writ of execution {par decrcO shall have the effect 
 " of liberating any immoveable property held d litre de reus, and so sold, from 
 *'• any of ihe rights, charges, conditions or reservations established in respect of such 
 '* immoveable properly in favor of the Seignior, but every such immoveable pro- 
 <' perty shall be considered as having been sold, subject to all such rights, charges, 
 *' conditions or reservations, except in so far as they may exceed those allowed by 
 " the Section of this Act, without its being necessary for the Seignior to 
 
 ** make an Opposition for the said purpose before the sale. 
 
 *^ XXXIX. If, notwithstanding the provisions of this Act, any Opposition djin 
 *' de charge be made hereafter for the preservation of any of the rights, charges, 
 " conditions or reservations mentioned in the next preceding Section of this Act 
 *' such Opposition shall not have the eflcct of staying the sale, and the Opposant 
 *' shall not be entitled to any costs thereon, but it shall be returned into Court by the 
 " Sheriff after the sale, to be dealt whh as to^ustice may apppertain." 
 
 Upon these clauses, in so far as they merely tend to obviate the necessity of 
 putting in Oppositions in order to the saving of Seigniorial charges upon land en 
 censlve sold by the Sheriff, I have nothing to say. In connection with the forty- 
 first Section, I shall presently have occasion to speak of the limitation which this 
 clause hints at, as intended to bo wrought, in respect of the charges to be allowed 
 on such land. 
 
 The Fortieth Section reads :— 
 
 **■ XL. The privileges and preference granted by law to Seigniors, to secure to 
 '* them the payment of the Seigniorial rights which shall hereafter become due, 
 '' shall only be exercised for arrears which shall have fallen due during the five 
 ** years next preceding the exercise of such privileges and preferences." 
 
 At present, they can be exercised for thirty years' arrears. And it may be 
 hard to assign a good reason for proposing this piece of exceptional legislation ; 
 unless, indeed, it be such reason, that it tends to the disadvantage of the Seignior. 
 There is even a dash of the e.v post facto in it, as in so many others of the clauses 
 I have had to notice. — Secure in the existing law. Seigniors have refrained from 
 suing ; well knowing that at any time within the thirty years, the arrears due to them 
 would be recoverable as a debt having a certain known priority of claim. But they 
 are to find out their error. Whatever amount of such arrears they may have 
 allowed to run, beyond the term of the last five years, they are not to be sufiered 
 to recover, as such privileged claim. 
 
 T?audot, in 1707, suggested a new short term of Prescription, against every- 
 body. This proposal is against the Seignior only. And yet, one would be tempted 
 to think that he is hardly the man to be so selected ; since his accruing dues fall 
 in yearly, in such small amounts as to make it no slight hardship that he should 
 have to collect them even for the time to come, (to say nothing of his vested rigUt 
 for the past,) within the five years, on pain of risking their loss. It forms part of 
 the plan, too, we must remember, to cut them down, in those cases where other- 
 wise their amount might make them worth that sharp collection which this Section 
 would enjoin. Straws show the wind. In great matters and in small, it is not the 
 Seii2rnior who is to gain. 
 
 'to' 
 
 The next Section, the Forty-first, is in these terms : — 
 
 " XLI. All stipulations in any deed of concession, new title deed or recogni- 
 " zance (titrc-nouvd ou recognifif) made before the passing of this Act, in so far 
 " as such stipulations tend to establish in favor of the Seignior upon any land con- 
 ^' ceded d titre de cens, with the exception of land conceded as a town or village 
 *' lot, any rights, charges, conditions, or reservations other than or exceeding the 
 " following, are with respect to such excess or difference hereby declared null and 
 " void, namely : 
 
 " 1. — The obligation to keep house and home on the land conceded* 
 
97 
 
 '' 2. — That of surveying and bounding the land conceded, at the expense of 
 " the concessionaire. 
 
 ** 3. — That of payin T an annual rent (redevance) which shall not in any case 
 *' exceed the sum of two pence currency for each superficial arpent of the land 
 " conceded, and which, in any Seignioiy wherein the customary rents are below 
 '* the said rate, shall not exceed the highest annual rent stipulated or payable in 
 ** the said Seigniory. 
 
 " 4. — That of exhibiting deeds of acquisition, executing new title deeds, 
 '• (iilres nouvels) and paying mutation fines {lods ct ventes) according to law. 
 
 " 5. — That of grinding at the Banal mill the grain grown on the conceded 
 ^* land, and intended for the use of the family or families occnpying the same. 
 
 a 6. — The right of the Seignior to take back (retraire) the land conceded, in 
 " all cases of fraudulent sale, or mutations made with a view to defraud such 
 " Seignior, or in such manner as to deprive him of the whole or of part of the 
 '' lads et veiUeSj or other just rights. 
 
 *' 7. — The right of the Seignior to take, in any part of his censive, and as often 
 *• as the case may happen, a parcel of land for the construction of a Banal mill and 
 '< its dependencies, not exceeding six superficial arpents, on payment by him to 
 " the proprietor, of the value of the land and expenses. 
 
 Ex post facto legislation again. In I know not how many thousands of deeds, 
 are contained no one knows how many clauses in favor of Seigniors; freely agreed 
 tOj at all dates through the last two centuries. There are clauses too, of course, 
 not always alike, in favor of the Censitaire. None of these latter are to be touched. 
 But as to the former, though it is most certain that they are not clauses repudiated 
 by the law as it stands. Taw is to be manufactured to sweep them all away, 
 saving only the seven 1 have read. Did I say, saving such seven ? Saving even 
 them — how ? 
 
 Why, as to the obligation to keep hearth and home, we have seen that this Bill 
 proposes to declare, that it shall be held to import no more than the duty of reserv- 
 ing the land for firewood. 
 
 That of surveying the land, being no great matter, is left to its natural meaning. 
 
 That of paying rent, at a rate often less than the deed promises, is curiously 
 stated. The grantee is to remain under the obligation to pay a rent, never to 
 exceed our fatal two pence currency of money; but in any Seigniory where most 
 of the r£.tes are below that figure, the payments to be mad^ are not to exceed the 
 highest rate known in the Seigniory ! Of course they cannot. They are to be 
 cut f'own everywhere to the two pence; and sometimes, if this clause mears any- 
 thing at all, they are to be cat down to some lower standard. But, to what 1 
 
 The exhibiting of deeds, passing of new deeds and paying of Zods, according to 
 law, are all proper acts ; but with the right of retraii practically lost, they are little 
 like I V to be too punctually performed. 
 
 As for the banality and retrait clauses, I have shown that in the shape they are 
 intended to assiiL-se, they are worthless. Like most other things that might be 
 worth the Seignior's keeping, they are to go. it may save appearances, to take 
 them without exactly saying so ; but the substance of the act is the same. 
 
 And lastly, there is to be left the power (wherever stipulated) to take not more 
 than six arpents for a new banal mill, due payment first made, cf course, the sup- 
 posed payee being a Censitaire. A likely thing, the building of a new banal miil ; 
 after banal mills shEdl havo been made what this Bill would make them. 
 
 Is this style of Legislation possible? It is not true, the bold assumption, that 
 the contracts thus all twept aside, are contracts which the law can disallow. 
 
 7 
 
98 
 
 They are legal ; binding. If they were not, no statute would be wanted to put 
 them out ot the way. They cannot be legislated away, merely because one ot the 
 two classes of men, parties to them, is more powerful than the other. 
 
 The last clause of this part of the Bill, is the Forty-second ; and reads thus : — 
 *' XLII. And whenever a Corporation shall have acquired lands en ro/wre and 
 
 *' shall have paid the indemnity (indemnite) to the Seignior, no lods et ventes shall 
 
 " thereafter be payable on any mutation of the same land." 
 
 I say no more of it, than this. As the law stands, if land held d cens be ac- 
 quired by a Corporation, the Seignior has his right to this indemnity ; and if it be 
 afterwards sold, he lias his right to lods et ventes. This clause is the taking away 
 of one thing more, — a smaller thing than many, — but something. It is in keeping 
 with its predecessors. 
 
 The Fifth part of the Bill follows ; from the Forty-third to the Seventy-second 
 Sections ; the portion of the Bill which takes up the matter of the Commutation of 
 the Tenure of lands held a cens. 
 
 The First Section of the Bill, it will be remembred, has proposed to repeal the 
 Acts, under which at present Seignior and Censitaire can agree as to terms for such 
 Commutation, and can carry into effect their agreement, whatever it may be. 
 These Sections contain no provisions of that character. The Censitaire individually, 
 or the Censiiaires of a Seigniory collectively, may be willing to make their bargain 
 with me, and I with them. But under this Bill, no such thing may be. The 
 terms of the transaction are all fixed for us. And how? 
 
 By the Forty-third and Forty-fourth Sections, we are told that any holder of 
 land en roture may commute his tenure, on paying in the wajr to be designated by 
 after clauses, the price of the redemption of his Seigniors's rights, — that is to say, 
 firstly, of the Seignior's fixed rights (whether in kind, money, labor, or otherwise) 
 and banality, — and secondly, of his casual rights or lods et ventes. 
 
 The Forty-fifth and Forty-sixth Sections provide for the appointment by 
 Government, of three Commissioners; to be sworn before a Justice of the Peace, 
 and paid as the Governor shall direct. It is not said, that they are to be professional 
 men of any particular standing, or indeed professional men at all; yet we shall see 
 presently, that they had need be lawyers of high mark ; for they will have (or 
 rather, each by himself will have) to decide knotty questions of law in abundance, — 
 to interpret thousands upon thousands of deeds, or rather first to interpret and then 
 alter their interpretation as this Bill directs, — to pronounce on the rights of property 
 of some hundreds of thousands of people, — and all without appeal ; and afterwards, 
 they will together have to sit as an extraordinary Court, and adjudge upon a class 
 of causes, the most intricate and difficult, as well in respect of law as in respect of 
 fact, that ingenuity could well devise. On the other hand, however, it might not 
 do to say they shall be lawyers ; for the Advocate is not usually eminent as an 
 investigator of accounts and settler of values of all kinds, as we shall see these 
 Commissioners are bound to be. They are to be sworn to perform their duty. 
 I hope they may be able. But they had need be all but omniscient. 
 
 By the Forty-seventh Section it is to be enacted that each of them is to draw 
 up in triplicate, a tabular Schedule of all the lands in each of the Seigniories to be 
 allotted to him, — showing the amount of the redemption money for each lot of land, 
 and distinguishing such redemption money in every case, into three parts, that is 
 to say, the price set on the yearly fixed charges, on the banality, and on the casual 
 rights. 
 
 The Forty-eighth Section gives some instructions, as to how these prices are 
 to be set. 
 
 The yearly fixed charges, we are told, are to be rated at the capital represent- 
 ed by them at six per cent. And if this rule were carried out, there would on this 
 score be nothing to complain of. But it is not. There is first to be met the case 
 of the charges stipulated in kind ; and how is this met ? The Commissioner is to 
 
99 
 
 value the articles stipulated, according to their prices as " taken from the books 
 *' of the merchants nearest to the place," and he is to come at his average, by 
 taking' the values of each of the last fourteen years, thus ascertained, — tliea 
 striking off the two highest and the two lowest — and lasily striking the average of 
 the remaining ten. Then, the value of all correes or stipulated labor, is to be 
 turned into money by the same not very easy process. And then, the postscript 
 follows ; that the whole *' shall in no case be calculated at a higher rate than two 
 '' pence per annum for each superficial arpent of the land subject to such annual 
 " charges, unless the said land be a town or village lot." 
 
 Of course, after all that has preceded in the Bill, this last provision could not 
 but follow. But it is not the less a direct reversal of the professed principle of this 
 valuation, that the price of redemption of these charges is to be the capital sum 
 they represent. 
 
 Besides, — not to speak of the cumbrousness of this procedure for valuing 
 charges in kind and labor, of the impossibility of the Commissioner's ordinarily 
 finding the evidence that he is told to lake, and of its unreliable character when he 
 may hud it, — on what principle are four years out of the fourteen to be struck off? If 
 fourteen years are to be looked up, the average from them all will be a truer aver- 
 age, than one drawn from any ten of them. And in truth, on what principle of 
 right, is an average of any number of past years to be taken at all ? Because 
 prices as a general rule have been rising ; so that a money value of some years 
 ago will be lower than the money value of to-day ? Or on what principle, as 1 
 have already urged, on what principle turn all into money, — when, as we shall see, 
 it is not cash payment or even payment within any term of time whatever, that 
 is comtemplated ? Above all, why cut the result down, to a money maximum ? 
 Unless, indeed, it be that nothing short of the maximum of wrong that can inci- 
 dentally be inflicted on the Seignior, will suffice to meet the exigencies of this 
 peculiar case ? 
 
 For the setting of his value on the banality rights of the Seignior over each 
 lot, our Commissioner is thus directed. 
 
 ** To establish the price of redemption of the right of banality, an estimate 
 " shall be made of the decrease in the annual receipts of the banal mills to arise 
 ** from the suppression of the right of banality and from tlie inhabitants being 
 " freed therefrom ; the amount of the said estimate shall represent the interest at 
 *' six per cent, of the capital which shall be the price of redemption of the banality 
 " for the whole of the Seigniory, and the said capital shall be apportioned among 
 '* all the lands subject thereto, according to their superficial extent." 
 
 Good. But how is he to make this estimate? And when? If immedi- 
 ately, what will it be, but a sheer guess? Five years hence, or ten ? Is the 
 whole machine to stand still so long ? And if it were ; to what use ? For five 
 [ years or ten, no new mill may be built in my Seigniory ; and I may in that 
 case have lost nothing. The next year, when 1 have been pronounced to have lost 
 nothing, an enterprizing miller steps in ; and I find I have lost all. 
 
 Further,-— though, perhaps, the cinding part of this clause may se 3m to be more 
 my Ccnsitaires^ business than mine, — I cannot help asking myself, why the value 
 of niy banality, thus to be guessed at lor my whole Seigniory, is lo be «< appor- 
 " tiontid among all the lands subject thereto, according to their super Icial extent?" 
 Is it ir erely, that the poor CcnsUaire who keeps hearth and home, by keeping up 
 an int«mtion to cut his firewood, on 90 arpents of land that he cm hardly sell 
 for its very worthlessness, may have to pay as much to clear it fron my banality, 
 as his neighbour is to pay to the same end, Tor the 90 arpents, all laid ^lown in grain, 
 that form pait of his abundant wealth? Or, is it also, that the extent of my un- 
 conceded lands, which I am not to keep, may be made a pietextfor throwing only 
 a part of the price of my banality, on those who ought to pay it to mt in full ? 
 
 My casual rights are to be valued by the same sort of process a^ my rents in 
 kind ; that is to say, by an average of ten years out of tcurteen. Again, I ask 
 
 7* 
 
100 
 
 why ? Perhaps, because income from lods et ventes is the most fluctuating and 
 uncertain income possible. The revenue of the years struck out as highest or 
 lowest may affect the average to any conceivable amount, or to none at all ; just as 
 it shall happen. For example, from Ihe public returns of the quint revenue of 
 the Crown, (a revenue precisely analogous to the Seignior's revenue from lods et 
 ventes.) I find its average for thirty-eight years ending in 1842, was i:836 5s 5^. 
 The maximum year's receipt during that term was £2,856 17s 5d ; the minimum 
 £5 6s 4d. In 1845, it was £3,470 13s 8d; in 1847, £2 3s — d ; in 1851, nothing. 
 
 But, aside from the objection arising out of these fluctuations, the chances of 
 course are, that a revenue thus valued at an average of past years, will be set below 
 its value. In an old country, this might not be so much the case. But we have heie a 
 new country, with its fast-changing values, to deal with. And there will even be 
 the greatest differences in the working of the rule, as between different Seigniories. 
 In many, it must work the most enormous injustice. A large part of a Seigniory 
 has been conceded wiihin the last ten years ; its revenue from lods et ventes is of 
 the future. Another was all conceded a century and a half ago. Is this one rule 
 o be the rule for both ? 
 
 The Forty-ninth and Fiftieth Sections direct the Commissioner to issue certain 
 notices before he begins his work; and give him certain powers for the conducting 
 of his inquiry. On these sections I make but a passing remark. His duties are 
 not more all-comprehending than his powers. He can summon and examine any 
 one; and enforce the production of anything. Upon refusal of any body to appear 
 or ** answer any lawful question," or "produce any book, paper, plan, instrument, 
 '• document or thing whatsoever, which may be in his possession and which he 
 '^ shall have been required to bring with him or to produce," the Commissioner 
 may arrest him and commit him to the common gaol of the District, — but happily, 
 not for more than one month of confinement, nor with the added pleasure of hard 
 labor. One hopes that no Commissioner will ever want to see what ought not to be 
 shown. V For if he should, one's rights would not be too secure. 
 
 By the Fifty-first Section it is provided, that as soon as he has finished with 
 each Seigniory, the Commissioner is to deposit one of his triplicate Schedules with 
 the Receiver General, and another in the office^of the Superior Cour in the District ; 
 keeping the third himself. And this done, he is to give notice of the fact in the 
 Canada Gazette, and in some other newspaper of the District, or adjoining Dis- 
 trict, as the case may be. Thus deposited, the award is irrevocable. He may have 
 made the grossest blunders or committed the most flagrant injustice ; but there is 
 no appeal. He may find out and confess that he has blundered ; but even he can- 
 not amend or revise. The triplicates may not accord ; but none can be altered, so 
 as to bring them into accord, and make it sure what the true award is. The sum- 
 mary Judgment that is to give away my land to any person who may want it, is not 
 to be more *• final and without appeal," than is to be this Schedule, or rather, each 
 triplicate thereof, — signed, " that it be not changed, according to the law of 
 the Medes and Persians, which altereth not." 
 
 Unalterable, these triplicate Schedules 'of ray Seigniory are deposited ; and 
 their deposit advertized. The Fifty-second Section shows the right which is there- 
 upon to accrue to each of my Ceoisitaires, in respect of the commutation of the te- 
 nure of his land : — 
 
 " LII. It shall be lawful for the owner of any land held en roture, as ^oon as 
 *' the Schedule for the Seigniory in which sucli land is situate shall be completed 
 '* and deposited as aforesaid, to redeem all the Seigniorial rights to which such land 
 *' is subject, at the rate specified in such Schedule, by adding thereto interest cal- 
 " culated at the rate of one per cent, per annum on the price at which the casual 
 ** rights may be redeemed, from the day of the dale of the deposit of the said Sche- 
 " dule, as required by the clause of this Act; and such redemption shall 
 
 <• be made in some one of the modes hereafter provided, but not otherwise." 
 
 The following Sections, to the Sixty-seventh inclusive, are taken up with the 
 subject of these modes of redemption. I shall not comment upon them in detail, 
 because it is not to mere detail that I have to object, but to the entire principle upon 
 
101 
 
 which they all rest. It is enough to say, that no time is fixed within which the 
 redempilon must take place ; that every Censitaire is free to commute when he 
 pleases ; or.not at all, if he does not please. Till he shall please to commute, the 
 schedule remains a dead letter, so far as he is concerned. He remains a Censi' 
 taire, fraed from half his obligations, or more, as the case may be, — but in name a 
 Censitaire ; and the obnoxious tenure of his land subsists. When he wants to 
 change it, he is to so, w^i to me, but to the Receiver General of the Province, or 
 such officer as the Receiver General shall name to that end ; and is either to pay 
 him Ih3 redemption money, or simply declare to him his desire to commute.— ia 
 which latter case, the redemptionmoney becomes a constituted rent (rente constiiuee) 
 or redeemable charge upon the land, bearing interest till redeemed. Such consti- 
 tuted rent, again, whene\rer redeemed, is so to be by payment to the Receiver Ge- 
 neral. And all monies so paid, whenever paid, are to find their way to me, by a 
 process not the quickest in the world, calculated in some measure to protect my 
 creditoj's, who are not to be left quite so badly off as I. If three months after any 
 payment, 1 can givo the Receiver General a certificate from the Clerk of the Superior 
 Court for my DistricI, that he has no Opposition in his hands on the part of any of 
 my creditora, I can get the amount willi the interest on it, paid over lo myself. If 
 not, — the more probable case, by the ^vay with most Seigniors, — my money is to 
 lie with the Receiver General for three years, or till it amount to £500, as the case 
 may be, and is then to be paid into Court, with interest, for my creditors and myself 
 to fight over, as we best may. 
 
 And this is a raluin^ and redeeming of my rights. Not by agreement be- 
 tween my debtors (individually or collectively) and myself; nor by the niatler of 
 course process of an arbitration between us, if we should not agree. A man named 
 by neither of us, is in all sorts of indirect ways to undervalue, by a slow, costly, 
 uncertain process ; and then he is to cut down his undervaluing ; and neither of us 
 — nor yet even he — can correct any error or injustice he may commit. And when 
 all is done, I am not to have my mockery of a cash price, in cash, nor even in 
 one sum at any time ; as, were it valued ever so faiily, my right would be to have 
 it. It is to be paid in dribblets, no one knows when, just as any one but myself 
 may choose. 
 
 True, it is provided by the Fifty-second Section just read, that as each dribblet 
 shall be paid (or promised, as the case shall be) there is to be added to its amount, 
 what is oddly called " interest calculated at the rale of one per cent, per annum on 
 *' the price at which the ca-sual rights maybe redeemed, Irom the day of the date 
 " of the deposit of the said Schedule." But why one per cent ? Why such one per 
 cent, on part only of the price ? Above all, why only on that part which lepresents 
 my casual rights ? " Interest" it clearly is not ; and is not meant to be. It can 
 be taken only as a sort of recognition of the certain fact, that as year> pass on, 
 the value of money certainly will be falling, and the value of my Seigniorial rights 
 rising. But who will say how fast ehher process is to go on ? Most persons be- 
 lieve money is on the eve of a rapid and long continued lail in value. Will a rise 
 ol one per cent, per annum protect rae even against that ? If it will, it still ought 
 lo be taken, not upon a part, but upon the whole of the so-called money value 
 fixed for the redemption of my righis. But apart from all fall in the value of 
 money, it is to be remembered that the value of all property is rising ; lands be- 
 coming more extensively cleared and better cultivated, — sales more frequent, — 
 crops to be ground at the Seigniory mills, larger. My revenues from banality and 
 Lod3 et Vf^itts must be held to be increasing revenues. In many Seigniories, they 
 are fast increasing revenues. What is now their money value, I could afford to 
 take now. But if I am tube paid twenty years hence, I must have what their value 
 will be then. Adding one per cent, per annum, merely, to an undervaluing of my 
 lods et ventes alone, is a mockery j another mockery added to the many that this 
 Bill offers me. 
 
 And not one pa3rment ever is to be to myself. When my land was to be taken 
 from rae, my creditors were not remembered. Against any person wanting it be- 
 low its value, they are to have no rights, any more than I. But when money is to 
 come to me, they are remembered. Against me, they are not to lose their lights. 
 I do not ask that they should. Protect them by all means. But protect me also. 
 It ig my right — and theirs too— that my property be not dealt with after thia 
 
102 
 
 fashion. What other class of men was it ever proposed so to treat? Ask the 
 merchant or professional man, how he would like to have his books handed over to 
 a stranger, all his accounts squared without appeal, and all his debtors told to settle 
 when they pleased, with a public functionary, who should then hand over the 
 proceeds to his creditors. Bankruptcy ! No Bankrupt law that ever was, ever 
 dealt so hardly with its victims. Protect my creditors, I repeat ; by all means. 
 But at least do not ruin me. If my rights are to be taken, take them ; but secure 
 to my creditors and myself their honest value. To do this, that value must be 
 settled fairly, and laid before us in one sum ; not every separate six and eight- 
 pence, five pounds, ten pounds, twenty pounds, of an mider-stated value, paid in at 
 all sorts of intervals, just as a thousand people may chance to choose. There is no 
 way but one, in which to take private property for the pubHc good. 
 
 The remaining Sections of this part of the Bill, from the Fifty-eighth to the 
 Seventy-second inclusive, are clauses which contemplate the contingency of two 
 thirds of the Censitaires of a Seigniory desiring to commute upon the terms set 
 forth by the schedule ; and which enable them in that case to effect the conversion 
 of all Seigniorial dues therein into constituted rents, — and further, if they shall so 
 please, to act together as a corporation for the redemption of such constituted rents. 
 
 Upon these clauses I have no other remark to make, than that I regret not to 
 find in the Bill a far more complete developement of the principle upon which 
 they rest ; as it is to that principle one must look Cif wc are to look at all) for any real 
 commutation of the tenure upon the voluntary principle. They create no machi- 
 nery by which the Seignior on the one hand, and his Censitaires as a corporate 
 body on the other, can agree on terms of commutation, or failing to egree can 
 settle any ditfereiice by the ready means of arbitration. There could be no mate- 
 rial difficulty in arranging the details of such a system, in a way to wor^: neither 
 inconvenience nor wrong. But these clauses, as they stand, do not do this ; and 
 failing in this respect, they can hardly be said to be of any practical importance as 
 part of the Bill. The despotic machinery for cutting down the value of ny rights 
 remains. An 1 it is not even likely that these clauses (limited as their scope is) 
 will ever be thought worth acting on ; so as to lessen ilie additional injury to be 
 done me by the piecemeal mode of settling for them as so cut down, which is 
 established as the rule of procedure under this Bill. 
 
 I have done, then, with this portion of the Bill, and pass to the next or Sixth 
 Part, extending from the Seventy-third to the Eighty-fifth Sections inclusive j and 
 which treats of the proposed indemnity to Seigniors. 
 
 The recital of the Seventy-third Section commences thus: — 
 
 " LXXIlI.—-And whereas some of the powers formerly vested in the Gov- 
 *' ernor andlntendant of New France, under the laws promulgated by the Kings of 
 " France, for the purpose of restraining all undue pretentions on the part of Sei- 
 <* gniors, have not been exercised since the said cession of the country ; and 
 whereas differences of opinion have existed in Lower Canada, and conflicting 
 " decisions have been pronounced by the tribunals established since that time in 
 *' reference to the character and extent of various Seigniorial rights ;" 
 
 An unfair recital. If powers adverse to Seigniors have remained unexercised 
 since the cession, to what has it been owing, but to the fact that the law of the land 
 has not provided for, or allowed their exercise ? And tiave no other powers, far 
 more vexatious, adverse to Censitaires, remained unexercised ? Are they alluded 
 to? Or proposal made for their revival? And "conflicting decisions" of the 
 tribunals of Lower Canada? As to what points; in what causes ; when? I will 
 not here undertake to say, that there have been none. But I do say, that I never 
 heard any cited, or their existence asserted by any one. Whj^, as I have said, the 
 notorious complaint has been, that the Courts of Lower Canada have decided al- 
 ways for the Seignior. '* Difference of opinion" I well know there has been ; a 
 difference of opinion between a large class of persons not Judges on the one hand, 
 and the Tribunals ou the other. But for the Courts ! If anything in this world can 
 be certain, it is that this large class of whom I speak, have for years steadily 
 assailed them for the uniformly Seigniorial tenor of their decisions. If anything 
 
 <( 
 
103 
 
 can be new, it is this assertion that their decisions, the meanwhile, have been con- 
 flicting. 
 
 But I proceed with this recital : — 
 
 '* And whereas, while it is the duty of the Legislature, to restore to persons 
 " continuing to hold lands en roture, (in so far as present circumstances will permit) 
 *' the rights and immunities secured to them by law as interpreted and adminis- 
 " tered at the last mentioned period, it is at the same time just that Seigniors who 
 *' have enjoyed lucrative privileges, of which they will in future be deprived by 
 '* this Act, notwithstanding the enjoyment of such privileges may have been 
 * sanctioned by the said tribunals since they ceased to exercise the aforesaid 
 '' powers, should be indemnified for the losses they will suffer from the manner in 
 *• which the rights to be herealter exercised by Seigniors are defined by this Act, 
 *' Be it therefore enacted,— That it shall be lawful for any Seignior to lay before the 
 " said Commissioners, a statement in detail of the amount of losssu.-tained orthere- 
 '* alter to be sustained by him, by reason of his having been curtailed, limited or 
 }' restrained by this Act, in the exercise of any lucrative privilege, or in the receipt 
 ** of any rents or profits which as such Seignior he would have been entitled to exer- 
 " ciseor receive before the passing of this Act." 
 
 When the Seignior's land is wanted by any person, we have seen how, sum- 
 marily and without appeal, one Jucge is to take it from him. When his contract 
 with his Censitaire is to be enforced, we have seen how, formally and deliberately 
 and subject to appeal, a Court of three Judges is not to enforce it. When his rights 
 aie to be first undervalued, and then cut down below such undervaluing, we have 
 seen how, again summarily and whhout appeal, one Commissioner is to do all that 
 that case requiies. We have now to eee how, after loss suffered by ihe Seignior 
 from these processes, loss amounting (it well may be) lo ruin, he is to proceed, 
 hopefully if he can, formally and subject to appeal at all events, with his after 
 prayer for some measure of Indemnity for his loss. 
 
 He Is to begin, by laying before the three Commissionners— not before one-- 
 his precise '* statement in detail of the amount of loss sustained or thereafter to 
 " be sustained by him, by reason of his having been curtailed, limited or re- 
 '' strained by this Act, in the exercise of any lucrative privilege, or in the receipt 
 '* of any rents or profits which as such Seignior he would have been entitled to 
 *' exercise or leceive before the passing of this Act." All I can say, is, that any 
 Seignior who shall sit down to make his statement for himself, will find it pretty 
 hard ; and any one who shall get it done for him, will find it pretty costly. A 
 statement in detail, of all his losses by this Bill? Why, the best lawyer, and the 
 best accountant and man of figures, in the country, together, could not draw it as 
 it had need be drawn. And all would depend on a detail of facts, which if denied, 
 no man could prove. It would be the procedure the most difficult and su'-e to fail, 
 that could be ; worse, if possible, than the suing of five hundred Censitaires together, 
 for failure to keep hearth and home on land, by reserving it for cutting firevfood. 
 
 Well ; by the following Sections it is set forth, that my " statement or petition," 
 when ready, is to be fyled '* in duplicate " with the Commissioners ; who, after 
 handing the duplicate of it to the Secretary of the Province, are to meet and take 
 the matter into consideration, first giving notice by advertisement, of the when and 
 where. Whenever the interests of the Crown may require it, the Attorney 
 General or other Counsel duly authorized, is to represent Her Majesty, and oppose 
 the prayer of the petition. And, as the interest of the Crown will require this in 
 all cases, — the indemnity coming out of a public fund, — it will of course always 
 be the duty of the Attorney General or his deputy, to oppose and sift the statements 
 (of law and fact) of every petitioner. 
 
 The Commissioners— not necessarily professional men — are to sit as Judges ; 
 and, after hearing the petitioner '* in person or by Attorney," and the Crown by the 
 Attorney General or otherwise, are to render their Judgment in writing. And by 
 the Seventy-eighth Section, it is specially provided that '' every such Judgment 
 shall contain the grounds thereof." No easy matter. Petition in detail ; Judgment 
 in detail ; reasons in detail. The Commissioners may find their job as hard as the 
 
104 
 
 Seignior will have previously found his. It is the Seignior's remedy that is in 
 question. Delay and difficulty are no matter. 
 
 Cfirtainly not. By the Seventy-ninth Section, he is to have the right of 
 appeal — as also is the Crown— to the Queen's Bench ; and thence, to the Privy 
 Council, whenever (as must commonly be the case) the demand shall amount to 
 £500 Srerliiig. — Such appeal, upon such matter, may be slow and cootly. Still no 
 matter. 
 
 The nexi clause, the Eightieth, carries us one step further ; and had need be 
 read carefully, for Its tenor to be seized, or credited : — 
 
 ** LXXX. The said Commissioners, and the Courts which shall hear any such 
 '* petition in appeal, shall reject every demand for indemnity based on the privilege 
 " granted by this Act, to persons possessing lends en roture to free them from thrt 
 " tenure by the redemption of the dues with which they are charged ; and shall 
 ^^ establish the amount of indemnity due to the petitionc r, vuly upon the differ e:ice 
 '* existing between the manner in lohich the rights hereafter to be exercised by the 
 *' Seignior are defimd by this Act^ and that by vMdi Ihe rights they exercised befire 
 " thepassingofthi'i Act would aave been interpreted if this Act had not been passed.'^^ 
 
 The question is not then to be, how much the petitioner has lost. No loss to 
 result Ironi the piece-meal and round-about way in which his rights are to be (as 
 the phrase is) redeemed, — no loss from any undervaluing or cutting down of them, 
 in the redemption schedules, — no loss, even, Irom any quantity of sheer mistake 
 that a Commissioner may have made in such schedules, — is to count. The measure 
 of his loss is to be the dilTerence between two unknown quantities, — between "the 
 manner in which his rights hereafter to be exercised are defined by this Bill, and 
 that in which his rights as now exercised would have been interpreted but for this 
 Bill." Ascertained, such difference would not compensate him. But how ascer- 
 tain it ? How state it in his petition? How prove it before the Commissioners? 
 How get it written, and the grounds of it set forth in their Judgment? How attack 
 or defend it in appeal ? This Bill purports to call it doubtful, how his rights as now 
 exercised should or would be interpreted at law. Suppose the Commissioners to 
 hold lor true the recitals of this Bill ; to define these rights as now exercised, so as 
 on legal grounds to give him nothing, let him prove as matter of fact what he may. 
 If they will, they can. And the Crown is to be by, — party to the suit, to require 
 them (so far as may be) so to do. 
 
 The Eighty-first Section takes the next step, thus : — 
 
 ** LXXXI. Every Judge who shall have presented a petition for indemnity in 
 <' his own behalf, in virtue of this Act, shall be liable to recusation in every case in 
 " appeal from the Judgment rendered by the said Commissioners upon any such 
 *^ petition ; and every Judge who shall have sat in appeal from any one of such 
 " Judgments, shall be deemed to have renounced all right to present any such peti- 
 *' tion in his own behalf." 
 
 Was ever law heard of, or proposed, that a landlord Judge might not sit in a 
 cause between landlord and tenant; or a proprietor Judge, in a case against a 
 squatter; or a Judge that had taken or given or endorsed a promissory note, in a 
 case involving promissory note law? By this Bill, the Censltaire^ Judge of any 
 Court, is to take away the Seignior's land ; the Censitaire Commissioner, Judge of 
 no Court at all, is to cut down the Seignior's rights : all, without recusation or appeal. 
 But the Cliief Justice or Judge of the Q,ueen's Bench, the highe-t tribunal in the 
 land, if he be a Seignior injured by this Bill, is not to sit — though with other Judges, 
 and subject to appeal to the Privy Council — upon any Seignior's claim of right 
 against like injury. The Judge of the highest grade, whose character may not 
 suffer but with ihat of his Country, is to have a stigma cast upon him, such as the old 
 French law — all unworthily suspicious as it is of Judges — never put upon the pettiest 
 magistrate. Any man but sucti Judge, is to be trusted, as though wrong or error to 
 "be wrought by him were the thing that could not be. 
 
105 
 
 The Eighty-second and Eighty-third Sections of the Bill take care, that if a 
 Seignior shall make good a claim, its amount shall not be paid, till his Creditors 
 shall have had their oppormnit) of making good their claims upon it. 
 
 And, fittingly to conclude this pail of the Bill, the Eighty-fourth and Eighty- 
 fifth Sections read : — 
 
 " LXXXIV. — And be it enaci^d, That the: emoluments and disbursements of 
 *' the Commissioners who shall be nanud under this Act, the expenses to be incurred, 
 " and the amount of indemnity which shall become due under the authority of this 
 " Act, shall not be paid out of thj Consolidated Ilevenue Fund of the Province ; but 
 " it snail be lawful for the Governor to raise by loan, on debentures to be issued for 
 ** that purpose, the interest of which shall be payable annual!) , and the principal at 
 ^' such time as the Governor shall Jueni most advautagaous lor the public interest, 
 " out of tne Special Fund, hereinafter mentioned, such sum as may be requi^-ed for 
 ** the payment of the said emoluments, disbursements, expenses and indemnity. 
 
 *< LXXXV. — The said Special Fund shall bo designated as the " Seisnioria 
 " Fund, and shall consist of: 
 
 " 1st. — All monies arising from Quint, lieluf and other dues which shall 
 ** become payable to the Crown in all the Seigniories of which the Crown is the Sei- 
 " gnior Domijiant, as well as all arrears of such dues. 
 
 *' 2nd.— The Kevenue of the Seigniory of Lauzon and the proceeds of the sale 
 *' of any part of the said Seigniory that may be hereafter made. 
 
 " 3id. — All monies arising from auction duties and auctioneers' licenses in 
 <* Lower Canada." 
 
 I have, then, at last got something awarded. Appeal or no appeal — at whatevei 
 cost, and after whatever delay — the award is final. No creditor, even, contests my 
 right to take it. But the credit of the Province is not pledged that I shall have it. 
 It is "not" to come — so reads the Bill — it is not to come out of the Consolidated 
 Fund. If the Special Fund here designated, suffice to pay it, after paying all Com- 
 missioners' salaries and schedule-making and other disbursements whatsoever, — no 
 small sum, — I am to be paid. If not, 1 am not to be paid. In the best case suppo- 
 sable, my award is not to cover all ray loss; I am to get it in no hurry ; and no 
 clause gives me a hope of geiting, along with it, any award of costs on my petition, 
 or on any contestation of it, or appeal or appeals, that I may have sufiered from. In 
 the worst case, I have lost the whole ; money, time, costs, together. 
 
 As to the sulTiciency of the proposed Fund, one is bound to presume that it is 
 intended to be ample. But if so, why not at once give me the guarantee of the Conso- 
 lidated Furd ? As that is not to be^done, one must feel an uncomfortable misgiving, 
 that when the Commissioners are paid, and all the rest of the expenses are paid, 
 there may not be enough to discharge the awards of indemnity ; that is to say, inaeed, 
 unless — as well enough may be the case— there be next to none made, at all. The 
 designated sources of revenue are, besides, not remarkable for productiveness and 
 security. Rtlief is never exacted by the Crown ; and it is hard to say why it is 
 named here as a source of revenue. Quint can accrue no more, after this Bill 
 should have become law ; for no man can be fool enough under such a law to buy a 
 Seigniory. The Seigniory of Lauzon is a property yielding but a very moderate 
 revenue. And auction duties and auctioneers' licenses in Lower Canada, yield no 
 large sum ; to say nothing of questions that may arise, as to the permanent mainte- 
 nance of that form of tax, at its present rate of productiveness. 
 
 The last part of the Bill remains; the concluding Section, headed as Interpre- 
 tation clauses. 
 
 The first of these— tlie Eighty-sixth of the Bill— is this :— 
 
106 
 
 " LXXXVI. And, for the interpretation of this Act — Be it enacted, That nothing 
 " in this Act contained shall extend or apply to any Seigniory held of the Crown, 
 '* nor to any Seigniory of the late Order of Jesuits, nor to any Seigniory held by 
 " the Ecclesiastics of the Seminary of St. Sal pice, nor to either of the Fiefs 
 ** Nazareth, Saint Augustin and Saint Joseph, in the City and County of Montreal, 
 " nor to any of the lands held en roiure in any of the said Fiefs and Seigniories." 
 
 Against so much of this clause as relates to the Seigniories of the Seminary of 
 Montreal, and the Fiefs Nazareth, St. Augastin and St. Joseph, I have not a word 
 to say. They are regulated by express legislative enactment ; and (as 1 have 
 already said) it is well that at least that one enactment should be respected. It 
 is respected, precisely as the whole body of law by which the property of all my 
 clients is assured to them, ought also to be respected. 
 
 But there is a further exception here made, which 1 cannot admit. By what 
 right is it proposed to save from the operation of this Bill, the Seigniories held by 
 the Ciown, whether as part of the domain, or as having belonge(! to the late order 
 ol Jesuits, or — as the Seigniory of Lauzon is — by purchase. These Seigaiories 
 contain ungranted lands, lands granted at higher rales than two-pence and under 
 reserves of all kinds, water-powers, banal mills, — everything this Bill proposes to 
 meddle with. Surely, if any. Censitaires can be favored as to such matters, theirs 
 can. If the Province can give any rights away, it might give its own. This Bill, 
 however, provides othervp^ise. The Province is to guard its own rights jealously ; 
 to be liberal, at the expense of every rule of right, with mine. 
 
 The Eighty-seventh Section purports to save from the operation of this Bill, 
 arrears accrued, and past payments, and leases of mills or water powers, and lands 
 conceded alter cultivation, improvement or re-acquisition by the Seignior, or 
 dismemberment from his reserved domain. So far, so good. But upon what princi- 
 p'e ? Unless, that such arrears are legally due ; that such payments were made 
 in discharge of legal debts; that such leases and grants are valid ; in a word, that 
 my contracts — one and all— are not contrary to law nor null? If so, on what 
 principle can they be dealt wiih, as this Bill would deal with them ? If ihey are not 
 contrary to law nor null, why are they not let alone? Either they are legal, and 
 as such sacred ; or they are illegal, and as such worthless. They are my right as 
 they stand ; or they are not my right at all. Once cut down for the future, they 
 cannot be made safe to me for the past. The first blow struck, I cannot be secure 
 from blows to follow. 
 
 The Eighty-eighth Section defines, among other words, the word ^' Seigniory ;" 
 and so defines it as to include within it, every kind of Seigniory, however held ; 
 the Sherrington Seigniories given with the unlimited powers, and under the 
 circumstances I have alluded to ; the Seigniories of Mount Murray and Murray Bay, 
 given by the British Crown to subjects who had shed their blood in its service; the 
 Seigniories granted in _//a«c a/tti, or otherwise on terms all but importing sover- 
 eignty as well as property, by or for the French Crown. The grantor, and the 
 terms of the grants, are to import nothing. In this at least, the Bill is to be con- 
 sistent. No Seignior is or can be a proprietor ; or shall be go treated. Our property 
 — the property of every one of us — is to be denied to us ; our contracts are to avail 
 against us, but not for us ; our whole civil status is to be changed ; we are to be 
 dealt with, just as it suits the interests of the more powerful class of the community 
 to deal with us ; mocked with the offer of a future mdemnity, that shall be no 
 indemnity,— which, however it may keep its present word of promise to the ear, 
 shall break it hereafter to the hope. 
 
 The Eighty-ninth Section, the last I notice, fittingly adds — as I have observed 
 already — that, for the ends of this Bill the words '* wild land" are not to be held as 
 meaning wild land, but something else. 
 
 My task is nearly done. I have not willingly taken up so much of the time 
 of this Honorable House; nor spoken more at length than I could help. But I 
 cannot, before concluding, avoid asking once again, after this review of the clauses 
 of this Bill, whether Legislation of the kind thereby proposed can be held to be in 
 any sense or shape a restoration of any old law which ever at any former time regu- 
 
107 
 
 lated Seigniorial property ; whether there would be any going back to the past, in 
 the enactment of a new law, containing such provisions as this Bill contains ; 
 whether any such project of law ought to be enacted, or indeed can so much as be 
 discussed, as likely to become law, — unless with the most disastrous consequences. 
 It cannot be, that such a measure should be the last project of its kind. VVeie it 
 passed to-morrow, — as it cannot be, — its etfect would only be to maintain in morbid 
 existence the very Tenure which it purpoits to intend to sweep away. It would 
 have declared much, and implied more ; would have unsettled every-tbing ; esta- 
 blished nothing. The legislative word would have gone forth, thai my clients are 
 not proprietors ; that then- rights are nothing but what the Legislature may see fit 
 to make them. We should be sure to be told, that what this Bill may leave us is 
 no more ours, than what it should have taken from us. We must defend ourselves, 
 as well against the proposal of this measure as against those that must come after 
 it. We must set forth — here, every where — the whole strength of our case. We 
 must declare, — for we are ruined otherwise, — however unwillingly, however we 
 may love this our country, however anxious we may be to maintain her character 
 and credit, we must declare, — and, so declared, what we say must everywhere 
 instinctively be felt to be true, — that measures such as we are threatened with, are 
 measures, of a kind to destroy all trust in our institutions, or in the character of our 
 people. We may save ourselves ; or we may be ruined. But we cannot be ruined 
 alone. The agitation that shall have beggared us, will have demoralised this 
 country, and destroyed all public faith in its institutions. Public confidence is of 
 slow growth. We have seen how slowly, as regards this country, it has grown to 
 be what it is, — to give promise of the fruit, which it does at this day promise to the 
 lately reviving hopes of our community. Is it so, that we are to see those hopes 
 fail, — the tree cut down to its roots, its re-growth doubtful, — at best, to be but after 
 long delay, yet more slowly, with less promise lo others than now to ourselves ? 
 
 Nothing by any possibility to be gained— and there is in fact. nothing whatever 
 that by this measure can be gained — could compensate for such loss, I know, 
 indeed, that'many people ignorant of Ihe facts think of the Seigniorial Tenure, 
 with what they call its abuses and extorlirns, as of a something so monstrous and 
 oppressive, as to make it hardly any matter what means may be taken to get rid of 
 it. With a vague impret^sion of the horrors that accompanied the destruction of 
 the Seigniorial system in France, and ascribing them (as is often done) to unwise 
 delay, resistance and I know not what, they draw the inference that here in Ca- 
 nada, by whatever means — one need not care how — the country population must 
 be freed from its burthens ; or, beloie long the whole fabric of Society will be 
 broken up. No mistake can be greater. The Seigniorial Tenure as it existed in 
 France in 1789, Wvis a system, to which nothing can be more unlike, than that 
 which now subsists under the same name here. The twe have hardly a feature 
 in common. There, indeed, there was extortion ; an extortion dating back through 
 long ages of oppression and wrong of every kind, 10 the conquest of one race by 
 another; extortion, sometimes more or less veiling itself under the form of contract, 
 but oftener subsisting as mere custom, the custom of a conquering tyranny ; ex- 
 tortion, that under every variety of form, by exactions the most multiplied and 
 oppressive — the very names ol most of which have long since lost meaning, save 
 to the antiquary — ground down and kept in abject want and prostration the whole 
 rural population of the land. It was swept away utterly, in a moment of madness, 
 and with every accompaniment of crime and horror. It was not swept away, 
 without violation of contracts and rights of property. But may it not at least be 
 suggested, that the sweeping away of that system, all bad as the system was, has 
 perhaps not yielded all ttie fruits that were hoped for, by those who then did the 
 wrong, of abolishing it otherwise than with a due regard to right ? They sowed 
 the wind. Did they not — do they not — reap the whirlwind ? Who will say, that 
 the French nation, so far, has cause to congratulate itself on the results of its fearful 
 experiment of social and political destruction? But to all that state of things, I 
 repeat, there is here nothing that can be compared. Here, everything appertaining 
 to the system is matter of contract and law. What in France was mainly fiction, 
 has here been fact. The obligations that subsist, are obligations resulting from 
 bondjide grants of land ; obligations, partly of free contract, partly superadded by 
 public law upon the basis of such contract. Besides, there the rural population had 
 forages been kept in a state of poverty and wrong, not much more humanizing 
 in its influences than a slate of slavery would have been, and may be eaid to have 
 
108 
 
 first woke to political existence, at tha moment when it seized on all the powers of 
 the State. Here, we have a rural population, as easy in its circumstances, as res- 
 pectable for every moral quality, as respectful of law and property, as any on the 
 lace of the globe. To liken our population to that of France iu 1789, is a mistake 
 as great as a man well can make j and one as well calculated, by the way, as any- 
 ihintr can be, to destroy our character. The matter in dispute here, what is it? A 
 question whether lands shall continue to pay a penny, two pence, two pence half 
 penny — possibly a shilling — an arpent, of yearly rent. The systenj, unless as car- 
 rying wi.ii it lods et ventes, is not one of hardship. The burthens it imposes, are 
 not heavily lelt by those on whom they fall. That, upon public grounds, it were well 
 to put an end to it, I do not question. But it were better it remained forever, than 
 that it should be put an end to, unjustly, — ai the cost ol the character of the country. 
 I say no word against the commutation of the Tenure. 1 desire it. My clients 
 desire it. It can be effected, without involving them in loss. It ought, if done at 
 all, to be so done. It must be so done. — They are not guilty trustees to be punished ; 
 but proprietors to be protected. They have the right to require that their property 
 be protected. They have the right to except, they do most respecllully bat firmly 
 except, to the competency of this Legislature — of any Legislature — to destroy their 
 vested rights, to give away what is theirs, toothers. The great Judge, whose name 
 perhaps more than that of any other is of the history of cur Common Public Law, 
 long ago laid down the maxirn, as appearing from the books, that *'in many cares 
 **' the Common Law will control Acts of Parliament, and sometimes adjudge them 
 " to be void : For when an Act of Parliament is against Common Ptight and Reason, 
 '* or repugnant or impossible to be performed, the Common Law will control it, and 
 ** adjudge such Act to be void." The tradition of that maxim of that great man 
 has never been lost ; but remains yet, a maxim of the Common Public Law, by the 
 side even of ihat other tradition which holds that Parliament — the Imperial Parlia- 
 ment — is omnipotent, may do what it will. And most surely it is not too m.uch for 
 me to say, that this Parliament — a Parliament not Imperial — has not, at Common 
 Law, the right to break contracts, to take from one man what is his, to give it to 
 another. 
 
 My clients ask — I here ask for them — no preference or privilege over any class 
 of our countrymen. They have no wish to go back towards that past, wherein they 
 were judged by one tribunal, and their Censitaii'cs hy another; their position then 
 the favorable one. But they do ask, that they be not carried into a future, where- 
 in they shall be judged by one tribunal to their ruin, and their Censitaires by a- 
 iiothe/to their own gain. They do ask— ask of right — that upon the Statute Book of 
 this Province, as touching them and theirs, that only be declared which is true, that 
 only enacted which is right. And pleading here this their cause, before this Honor- 
 able House, the Commons House of Parliament of this British Country of Canada, 
 — appearing to this Country here represented,— recalling, too, the assurance but 
 lately given as to this very matter from the Throne, and the answering pledge of 
 the Country, signified through both Houses of its Parliament, — I have too firm faith 
 in the absolute omnipotence, here and now, of the true and right, to be able to feel 
 a fear as to the final judgment which the Country and the Crown shall pass 
 upon it. 
 
109 
 POSTSCRIPT. 
 
 My remarks (on page 35), upon the Arret of the 29th of May, 1713, ren- 
 dered by the Conseil Superip.ur de Quebec, in the matter of the Fargy de Beauport 
 Village lots, were predicated upon the abridged report of its tenor, to be found in 
 the Second Vohune of the Edils ci Ordnnnances, and which I quoted verbatim. 
 Before eo quoting,— as I was aware that ihese abridgments are often not to be 
 reUed upon, — I had endeavoured to ascertain the tenor of the Arret iiself as 
 recorded ; bat had not been able to do so. A day or two afterwards, I learnt that 
 my enquiries had led to the finding of the Arret in question; and I have now an 
 authentic copy of it before me. 
 
 Its tenor unequivocally proves (as I was sure it must do) that the case was 
 not one ever so remotely connected with the matters involved in the Arrets of 
 Marly. 
 
 As long back as the 22J of July, 1669, an ArrH or Judgment had been 
 rendered by the Conceil Supericur, between the Seignior and a number of Habi- 
 tans, holders of Village lots in the Village in question. I have not been able to 
 obtain it; but from the manner in which it is referred to, it is plain that it was a 
 Judgment regulating the establishment of the Village (after the fashion of the day) 
 in all manner of particulars. 
 
 In 1713, disputes had arisen between the Seignior and some of the Habitans of 
 the Village, as to several matters not very clearly explained, but evidently arising 
 out of these regulations. And the Arret here in question, was a(;cordingly there- 
 upon rendered " by way of explanation of the Arret (en expliquartt V Arret) of 
 *'■ the 22d of July, 1609 " It began by maintaining each Habitant in his holding 
 of the lot — one arpent in extent — granted to him. Then, it went on to provide as 
 to the rnodo of apportionment of the rest of the Village plot among the claimants 
 for further grants; and then, and as part of these regulations, it directs — first, that 
 these further grants be made at a rate not exceeding one sol and a capon-fowl (a 
 value of some ten-pence half-penny according to the then valuation of the capon) 
 for each of such Arpent lots, — and secondly, that all grants made in the Village 
 ** since the said Arret of the 22d July, 1669" be reduced to that amount. 
 
 Those made before that date are not touched. And the inferences are ob- 
 vious; first, that there were higher rates of grant bearing earlier date, which were 
 held good ; and secondly, that for some reason not now apparent, the Judgment of 
 1669 had so fixed the rights of all parties from that time forward, as in the opinion 
 of the Conseil, silting m 1713 upon the case, to warrant this cutting down of 
 grants made since that date. 
 
 Whether they were right or wrong in so holding, one cannotsay, in ignorance 
 of the terms of the old Judgment which they were professing to carry out. But it 
 is clear that the case was a special case, and wholly unconnected with the subject 
 matter of the Arrets of Marly. 
 
 Yet the inaccurate abridgment of it, to be found in the Secoad Volume of the 
 EdUs et Urdonvances, has been misconstrued into an evidence of the supposed 
 meaning and style of enforcement of the first of those Arrets. 
 
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