1672]

RIGHTS OF THE SEIGNIOR.

303

larger villages, in the latter often preventing the sale of property and stopping all improvement; and the droit de retrait was an impediment to a proprietor's selling his property at a lower price to a relative or to anyone he desired to serve.

The seignior possessed the right of the banal mill, at which, alone, all the grain grown on the seigniory might be ground, he receiving as his perquisite one fourteenth part of the grain sent to the mill.

The seignior, on his part, was bound by certain obligations to the crown; he had to render foy et hommage and to pay the quint, the fifth part of the price on any mutation of title. He never possessed any of the ancient feudal rights as they had existed in France. The system had mainly in view the creation of a class of obedient, well ordered colonists, on the principle that the seignior did not hold the land for himself, but, consistently with the public welfare, as the trustee for those who were willing to work it. It had indeed grown out of the circumstances in which the country had been placed. In 1627, the company of the cent associés was formed under Richelieu's guidance; in 1663 the company abandoned its rights. In 1664 Louis XIV. established the company des Indes occidentales. In 1674 this company remitted its charter to the king.

It would appear by the seigniorial title deeds extant that until 1672 the grant to the seigniors was made by the intendant on the authority of the companies. We read in the conditions that the reservation of the mines, ores and minerals is made in favour of the king, or the Compagnie des Indes Occidentales. The last of these grants are dated in October and November, 1672; they bear the signature of Talon, whose efforts to develop the fortunes of Canada were so able and constant. After this time, the grant was made by the governor-general, direct from the crown, and the reservation is made in favour of the king only, without allusion to the company. De Frontenac at this period held the office of governor-general, and there is a grant from him of this character of the 5th of August, 1672. The rule was followed

until 1674 and was continued until the conquest, the seignior deriving his right directly from the crown, through the governor-general.*

The abuses which had arisen under French rule continued after the conquest. The possession of a seigniory had become to some extent a matter of commercial speculation; high rents, with onerous conditions, were often exacted; reserves were made on the part of the seignior of the timber on the land fit for building purposes; the stone quarries were held to be his property, for his own or for the public use; many seigniors claimed a right over the river shore, and a portion of the catch of fish; pretensions were likewise advanced to the exclusive use of the unnavigable stream running through the property, on the ground that the seignior alone possessed the right of constructing mills and carrying on manufactories. One effect of the lods et ventes was that if a habitant made any improvement on his lot and after his death his family disposed of the property, they had to pay the seignior one-twelfth of the additional value caused by these improvements.

In 1845 an act was passed permitting commutation when demanded, but it failed to have any effect. It was only by the act of 1854 that the tenure was abolished. This act released the land from the charges with which it was burdened, while respect was paid to the rights of the seignior. The habitant was freed from all charge upon his land, except the small annual rent which, as the right of redemption was given, obtained the character of a light privileged mortgage. The seignior received payment for all his other lucrative rights recognised by law, and the unconceded land became his property, to be held under the French law in franc aleu roturier.+

Thus it was not until sixty-four years after the first attempt to remedy the defects of the seigniorial tenure,

Titles and documents relating to the seigniorial tenure, pp. 124-5.

† Ante., Vol. I., pp. 92, 364; Vol. II., pp. 293, 504; as to the early estab lishment of the seigniories.

1856]

COMMUTATION OF THE TENURE.

305 that the system was abolished. The course followed by parliament on that occasion furnishes one of the most pleasing chapters in Canadian history. This legislation effected a peaceful revolution in the position of the agricultural population, and its influence and tendency, even now, are but imperfectly developed.

Although the subject is entirely beyond the scope of my labours, a few sentences on the subject may not be regarded as out of place. Commissioners were appointed to make cadastres of the several seigniories, but before any direct step was taken, a tribunal was constituted of the judges of the court of appeal and judges of the supreme court to determine what were the undisputed rights of the seigniors and what obligations the censitaires were called upon to redeem.

Judgment was rendered in May, 1856. The seigniors were declared bound to concede lands to censitaires when applied for, and to have had no power to alienate by sale the uncultivated land; no law had established the rate of the cens et rentes, which was, therefore, a matter of contract; and such corvées and servitudes as had been agreed upon as a part of the duty of the censitaire were recognised.

The right of the banal mill was affirmed according to the arrêt of 1686. The censitaires were declared the owners of the unnavigable streams running through their properties : an important decision in view of the claim of the seigniors, that they alone had the right of erecting mills and of establishing manufactories.

The legality of the lods et ventes was beyond dispute.

The legislature undertook to indemnify the seignior in money for the rights declared to have been his. The cost was made a national charge; an amount approximately equal was granted to the Upper Canada municipalities, and a proportionate grant was likewise made to the townships in Lower Canada, where the seignioral tenure had never been introduced. The total charge to the province of the measure was about ten million dollars. The seignior was

U

indemnified for the lods et ventes, the banalité and all other lawful charges imposed upon the censitaire, excepting the cens et rentes, which were left as they were. The amount of the cens et rentes on each separate lot in a seigniory was fixed in the cadastre and made a privileged charge, redeemable by payment of the sum, the interest of which, at six per cent., would equal the annual rent recorded.

The seignior received interest at the rate of six per cent. on the estimated value of his rights until paid, the estimated value of the rights of the crown being first deducted. The unconceded lands were granted to him in franc aleu roturier.

The description of this settlement, which I have felt myself called upon to give, will simplify any future reference to the subject.

*

After much hesitation, the imperial authorities had resolved to submit to the house of commons an act dividing the province into Upper and Lower Canada, a decision forced upon, rather than inaugurated by them. The agitation for

* It is relevant to state that this beneficent measure was enacted by the parliament of the province of Canada almost a quarter of a century previous to the foundation of confederation, in 1867. Mr. justice Drummond, then attorney-general, introduced the measure and carried it to a conclusion. He was ably aided by Mr. justice Dunkin, at the time advocate for the seigniors. The act itself owed much of its form and freedom from ambiguity to Mr. Wicksteed, Q.C., law clerk of the house of commons. At that date the office was of a widely different character to what it is at this time, the law clerk then being the confidential assistant to the legal members of the gov ernment, a duty now performed in the office of the minister of justice. Mr. Wicksteed, as I am writing, is the sole survivor of his contemporaries; he is in his 95th year, and his intellect as active and as bright as in his most vigorous years. He has done me the favour to read the narrative I have given, so I unhesitatingly claim for it the weight of an unimpeachable record. Mr. Wicksteed, in a volume of fugitive pieces, " Waifs in verse," going back over nearly seventy years of his honourable life, in a note, p. 170, furnishes some information of great value concerning this act, which I deem it a duty to append. "The Seignorial Act was passed in 1854. Mr. Drummond brought it in and very ingeniously contrived the Seigniorial Court, which finally settled the disputed points relative to the tenure. Mr. Dunkin most ably and zealously

1788]

PROPOSED HOUSE OF ASSEMBLY.

307

a change in the constitution had commenced immediately after the peace, by the demand for the establishment of a house of assembly and the trial by jury in commercial cases, concessions sought almost entirely by the English-speaking inhabitants. Their theory for the constitution of the house of assembly was to create it in such wise that the legislative power would be retained by themselves, although constituting a minority in the province by no means numerically strong. Mr. Lymburner, when in England, asked that the governor of Lower Canada should be instructed so to apportion the members that half the representatives should be chosen by the towns, evidently on the theory that by this distribution English-speaking members would be returned in sufficient numbers to constitute a majority.

*

Lymburner was a Quebec merchant of education and character who had been selected in 1788 to represent the Canadian committee in London,† a proceeding most probably explained and defended the rights of the Seigniors, and I, with the potent aid of Mr. Hincks, succeeded in getting the lods et ventes abolished, the Seigniors being compensated on equitable terms out of the provincial funds. Mr. Drummond and his friends wished to apply the government aid to the reduction of the heavy rents exacted by some Seigniors, but these, if unlawful, could be reduced by the court the lods et ventes, a fine of one-twelfth of the value, not of the lands alone, but of all buildings and improvements on it, were perfectly lawful, but were a hindrance to all improvement and to all free dealing with the land, while they were a constant source of attempted fraud on the Seigniors and of vexation to tenants and no fair terms of compensation by the tenants for their abolition could be contrived, because, while they bore so heavily on those who wished to improve, or were willing or compelled to sell their lands, they were not felt by others who had their lands from their fathers and meant to leave them to their children. Mr. Drummond for some time opposed the amendment, but eventually acceded to it. The Act went into force and was perfectly successful; so completely was every difficulty removed under its operation, that in the Act passed in 1856 for codifying the laws of Lower Canada the commissioners were forbidden to say anything of the Seignorial Tenure."

* The numbers were: Quebec, 7; Montreal, 7; Three Rivers, 3; St. John's, 2; William Henry, 2; Boucherville, I; Assomption, I; Terrebonne, 1; Beauport, I total, 25. Mr. Lymburner's theory was, that the commercial interests of Canada were contained in Quebec and Montreal, and that the well-being of commerce should be assured full protection. This specious argument was not entertained.

+ [Can. Arch., Q. 36.2, p. 469, 3rd Sept.]