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construct mills at which the grinding is fixed by law at a moderate rate. The religious and social habits of the Canadian agriculturist add the committee, "prevent him from emigrating to the township. He is there deprived of all the substantial comforts of his religion. His child cannot be baptized nor receive instruction in the principles of his religion; on the verge of the tomb, he can receive no religious consolation. He has no means of attending Divine worship.' No new settlement however small can long be without a chapel and a priest, but this can only be effected, in the opinion of the committee, by the erection of seignorial settlements. The population, say they, is adequate to the settlement of the waste lands; and in concluding their Report, they express the opinion, that the principal obstacle which had existed in that respect, has been the carelessness of the colonial administration, in executing the king's wise and gracious instructions.'
The committee observe cursorily that by the statute 12 Charles II. chap. 24, the feudal constitution is only modified, and not abrogated, even in England.
Without pretending to follow in the track of Craig and Ferriere or the other writers on the feudal law, or to attempt to throw any new historical light on questions which have been discussed and elucidated in so masterly a strain by Montesquieu, Robertson, and Hallam, we shall now endeavor to explain how far the feudal tenures have been introduced into Canada.
The feudal system has been sufficiently discredited, and its inconveniences are universally known ; but still we believe that many prejudices exist in respect to this system, as well as in respect to all institutions which are antiquated or in contradiction with the spirit of the age. In order to do justice to the ancient government of France, we must consider the modifications which had been applied to that system, long before it was demolished by the fiat of the revolutionary reformers. To be equitable to the governments which still maintain it, it would be requisite to show that it may be made consistent, to a certain degree, with modern principles, and that the feudal polity now existing, for instance in Spain and some parts of Italy, is not as we find it portrayed in ancient codes and legal disquisitions, or in philosophical denunciations against the wisdom of remote ages. But, if such an exposition is too remote from the subject which we are now en
gaged in examining, and too complicated for a rapid and general view, we may at least, advert to some of the most essential differences between the actual feudal system of Canada, and that which once existed in the greatest part of Europe, and subjoin a few remarks founded on the facts brought together in the documents, to which we have asked the reader's attention, at the head of the article.
We may set it down as an incontrovertible position, that conquest was the origin and the basis of the feudal system. The lands conquered were generally divided between the conqueror and the original proprietor. Now, Canada, was, originally, not a conquered province. The settlement of that country, though less spontaneous, and less exclusively economical than that of almost all the states, now composing the North American Union, was, nevertheless, in point of law, more like such a peaceful occupancy, than an acquisition by military force. England had a better title to the right of conqueror in 1763, than the first French monarch, who introduced into New France the system to which we allude. *
Yet as this system existed in the mother country, without being checked either by public opinion or by any legitimate power, and formed, on the contrary, the ground work of the whole political fabric in that kingdom, no objection could be urged, nor was probably urged against its introduction into the colony. It is the prevailing belief in Canada, at the present time, as we have already shown on the authority of one branch of the legislative body, that such a vast country could not in the beginning be settled, otherwise than by means of a partition of lands, among great feudatory landholders, since the first elements of its population were essentially different from those of the neighboring English colonies. The large quantities of land granted to a few individuals, were like a monopoly conceded to the promoters of a new branch of industry. Political economists admit, that manufactures, and commerce with distant countries which have long been inaccessible, may be encouraged by temporary privileges, without violating the most liberal principles towards strangers.
* Lord Grenville made in the course of the important Parliamentary debates, to which we shall repeatedly have occasion to refer, a distinction between a colony originally conquered, to which the laws of Great Britain might be transported, and a province conquered from another nation, and already possessing settled laws, agriculture, and an extensive commerce. Parl. Hist. vol. xxix. p. 656.
The colonies were generally not considered in any other point of view than as outlets of national capital and national industry. France may therefore plead, that the feudal system was nothing but a monopoly ; but on the other hand it might be objected--and the objection is irresistible—that agriculture and all the interests connected with it, are more steady, less moveable, and less independent of the general system of a country, than the other branches of industry; and that exclusive favors, once granted to any set of men in respect to landed property must have an irretrievably prejudicial influence on the destiny of the whole population.
The principal modification with which the feudal system was introduced into Canada, was the exemption from military services.
Under the French government, the seigniors exercised a territorial jurisdiction, though jurisdiction is not absolutely connected with the feudal tenure. In the earliest grants, mention is made of local judges, from whom appeals lay to the prevót or bailli at Quebec, and of superior, mesne, and inferior jurisdiction. But the territorial jurisdiction is now abrogated. The tenures are divided into noble and roturier.
. We have no English word,' says Hallam,* that conveys the full sense of roturier. How glorious is this deficiency in our political language, and how different are the ideas suggested by Commoner! But Mr Hallam forgot that there were such ' ruptuarii,' as Du Cange calls them, under the laws of Great Britain, in Canada.
The noble proprietors (who, as we shall hereafter show, need not be patricians themselves) owe to the king the same rights as the mediate tenants owe to them.
The roturier tenures are, according to Ferriere, ' inheritances held on censives and owe but two principal servitudes, the annual cens and the “ lods and ventes,” which are due from the new proprietor to the seignior censier, in virtue of sale or other conveyance, equivalent to a sale ;' and with respect to fines, they are subject to those for non-payment of the cens, or for failure of notifying the sale; the first is of 33 pence, the second of 37 pence.
* State of Europe during the Middle Ages, vol. i. p. 207. London 3d. ed.
† British sterling.
In case of collateral succession the heir is bound to pay a year's revenue of the fief, or a sum fixed by arbitration or by offer of the heir, at the option of the lord.
Fealty and homage' are probably now mere fictitious formalities. However in a work entitled an · Abstract of those Parts of the Custom of the Viscounty and Provostship of Paris,* which were received and practised, in the Province of Quebec in the Time of the French Government,'t it is said : • Fealty and homage constitute the fief and give it its name.' (Tit. II. of the Introduction.)
We findt that the cens amounted, under the French government, to fifteen eighteenths of a penny for every acre in front, by the whole depth of the grant; which varies from twenty to one hundred and twenty-six arpents.
The rents were stipulated between the lord and the tenant ; before the conquest, the highest amounted in cash to one penny and a ninth for each superficial acre, and when payable in money and in wheat, to five ninths of a penny for each superficial acre, and a bushel of wheat for forty superficial acres.
The censitaires are, besides, subject to the lods and ventes,' or the twelfth part of the purchase money, though the lords generally remit a fourth of it; and to the livery of seisin, which amounts to two thirds of a penny. According to the
Custom of Paris,' the formality of seisin is not strictly obligatory.
In regard to fines, they can only be exacted by means of a judicial sentence, and amount to 3} pence in case of refusal of paying the cens and rentes, and to 373 pence for default of giving notice of the sale.
* Mr Fox observed in the course of the debates on the Quebec Government Bill (House of Commons, May 11, 1791), that the French laws existing in Canada were not the laws of France, even at the time of 'the conquest of that Province. The whole French law was, indeed, never sent to the colony; but particular parts only. Whenever,' said he, "an appeal from the French laws and the Custom of Paris came before the Privy Council of that kingdom, the great and able men, who composed it, were put into a difficult situation, and were obliged to inquire what the custom of Paris was, in such and such a case, and how the French laws operated under such and such circumstances; and in order to ascertain those points, they were obliged to inquire of antiquaries rather than of lawyers, before the Code Marchand could be established.' Parl. Hist. vol. xxix. p. 406.
+ London, printed by the King's Printers. 1 vol. folio. 1772, (in French.)
| Report of the Committee, &c. p. 71.
ors, is that
The last feudal burthen is the obligation to bring the grain to the lord's mill, paying the fourteenth part for the grinding : to make or permit to be made all roads and bridges requisite for general intercourse (corvée), and to clear the lands and occupy them within a year and a day from the date of the deed.
These burthens being definite in their nature, it has been argued that they are analogous to soccage services. In France, says Hallam, * all lands, held in roture, appear to be considered as villein tenements, and are so termed in Latin, though many of them rather answer to our soccage freeholds. The commutation of the actual feudal tenures into free and common soccage would consequently not meliorate essentially the condition of the tenants. The most important restriction upon the right of the seign
inhabitant can insist on a grant of land, for the purpose of improvement, subject to rent and dues, whereby the grantee becomes a perpetual proprietor, without paying any purchase money, or other expenses than the notary's fee for acknowledging the deed. Again, the seignors cannot sell any portion of their landed estates, under penalty of having them forfeited to the crown and voiding the deed of sale.
These two last conditions are striking and distinctive features in the feudal system of Canada. They deserve a few words of explanation.
When the French government, about the first quarter of the seventeenth century, entrusted the administration of the Canadas to a company, the principal object and condition of the grant was to improve the country as rapidly as possible. That company distributed large tracts of land to several individuals, but always subject to the obligation of carving out from their estates suitable portions for all those, who should offer to cultivate and improve the land. By a grant made in January, 1636, of the fief of La Côte de Lauzon, it seems, besides, that the company was bound to send settlers to Canada ; for it is said that the number of those, whom the grantee and his heirs should send, would be deducted from the number which the company was obliged to furnish.
In March, 1663; the king resumed the rights surrendered to the company, and in the same month and the same year an arrêt was passed to remedy the inconveniences consequent
* Vol. i, p. 224. VOL. XXVII.-NO. 60.