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Lord Elgin
Chapter VIII - Seigniorial Tenure

The government of Canada in the days of the French regime bore a close resemblance to that of a province of France. The governor was generally a noble and a soldier, but while he was invested with large military and civil authority by the royal instructions, he had ever by his side a vigilant guardian in the person of the intendant, who possessed for all practical purposes still more substantial powers, and was always encouraged to report to the king every matter that might appear to conflict with the principles of absolute government laid down by the sovereign. The superior council of Canada possessed judicial, administrative and legislative powers, but its action was limited by the decrees and ordinances of the king, and its decisions were subject to the veto of the royal council of the parent state. The intendant, generally a man of legal attainments, had the special right to issue ordinances which had the full effect of law--in the words of his commission "to order everything as he shall see just and proper." These ordinances regulated inns and markets, the building and repairs of churches and presbyteries, the construction of bridges, the maintenance of roads, and all those matters which could affect the comfort, the convenience, and the security of the community at large. While the governmental machinery was thus modelled in a large measure on that of the provincial administration of France, the territory of the province was subject to a modified form of the old feudal system which was so long a dominant condition of the nations of Europe, and has, down to the present time left its impress on their legal and civil institutions, not even excepting Great Britain itself. Long before Jacques Cartier sailed up the River St. Lawrence this system had gradually been weakened in France under the persistent efforts of the Capets, who had eventually, out of the ruin of the feudatories, built up a monarchy which at last centralized all power in the king. The policy of the Capets had borne its full, legitimate fruit by the time Louis XIV ascended the throne. The power of the great nobles, once at the head of practically independent feudatories, had been effectually broken down, and now, for the most part withdrawn from the provinces, they ministered only to the ambition of the king, and contributed to the dissipation and extravagance of a voluptuous court.

But while those features of the ancient feudal system, which were calculated to give power to the nobles, had been eliminated by the centralizing influence of the king, the system still continued in the provinces to govern the relations between the noblesse and the peasantry who possessed their lands on old feudal conditions regulated by the customary or civil law. These conditions were, on the whole, still burdensome. The noble who spent all his time in attendance on the court at Versailles or other royal palaces could keep his purse equal to his pleasures only by constant demands on his feudal tenants, who dared no more refuse to obey his behests than he himself ventured to flout the royal will.

Deeply engrafted as it still was on the social system of the parent state, the feudal tenure was naturally transferred to the colony of New France, but only with such modifications as were suited to the conditions of a new country. Indeed all the abuses that might hinder settlement or prevent agricultural development were carefully lopped off. Canada was given its seigneurs, or lords of the manor, who would pay fealty and homage to the sovereign himself, or to the feudal superior from whom they directly received their territorial estate, and they in their turn leased lands to peasants, or tillers of the soil, who held them on the modified conditions of the tenure of old France. It was not expedient, and indeed not possible, to transfer a whole body of nobles to the wilderness of the new world--they were as a class too wedded to the gay life of France--and all that could be done was to establish a feudal tenure to promote colonization, and at the same time possibly create a landed gentry who might be a shadowy reflection of the French noblesse, and could, in particular cases, receive titles directly from the king himself.

This seigniorial tenure of New France was the most remarkable instance which the history of North America affords of the successful effort of European nations to reproduce on this continent the ancient aristocratic institutions of the old world. In the days when the Dutch owned the Netherlands, vast estates were partitioned out to certain "patroons," who held their property on quasi feudal conditions, and bore a resemblance to the seigneurs of French Canada. This manorial system was perpetuated under English forms when the territory was conquered by the English and transformed into the colony of New York, where it had a chequered existence, and was eventually abolished as inconsistent with the free conditions of American settlement. In the proprietary colony of Maryland the Calverts also attempted to establish a landed aristocracy, and give to the manorial lords certain rights of jurisdiction over their tenants drawn from the feudal system of Europe. For Carolina, Shaftesbury and Locke devised a constitution which provided a territorial nobility, called landgraves and caciques, but it soon became a mere historical curiosity. Even in the early days of Prince Edward Island, when it was necessary to mature a plan of colonization, it was gravely proposed to the British government that the whole island should be divided into "hundreds," as in England, or into "baronies," as in Ireland, with courts-baron, lords of manors, courts-leet, all under the direction of a lord paramount; but while this ambitious aristocratic scheme was not favourably entertained, the imperial authorities chose one which was most injurious in its effects on the settlement of this fertile island.

It was Richelieu who introduced this modified form of the feudal system into Canada, when he constituted, in 1627, the whole of the colony as a fief of the great fur-trading company of the Hundred Associates on the sole condition of its paying fealty and homage to the Crown. It had the right of establishing seigniories as a part of its undertaking to bring four thousand colonists to the province and furnish them with subsistence for three years. Both this company and its successor, the Company of the West Indies, created a number of seigniories, but for the most part they were never occupied, and the king revoked the grants on the ground of non-settlement, when he resumed possession of the country and made it a royal province. From that time the system was regulated by the Coutume de Paris, by royal edicts, or by ordinances of the intendant.

The greater part of the soil of Canada was accordingly held en fief or en seigneurie. Each grant varied from sixteen arpents--an arpent being about five-sixths of an English acre--by fifty, to ten leagues by twelve. We meet with other forms of tenure in the partition of land in the days of the French regime--for instance, franc aleu noble and franc aumone or mortmain, but these were exceptional grants to charitable, educational, or religious institutions, and were subject to none of the ordinary obligations of the feudal tenure, but required, as in the latter case, only the performance of certain devotional or other duties which fell within their special sphere. Some grants were also given in franc aleu roturier, equivalent to the English tenure of free and common socage, and were generally made for special objects.[22]

The seigneur, on his accession to the estate, was required to pay homage to the king, or to his feudal superior from whom he derived his lands. In case he wished to transfer by sale or otherwise his seigniory, except in the event of direct natural succession, he had to pay under the Coutume de Paris--which, generally speaking, regulated such seigniorial grants--a quint or fifth part of the whole purchase money to his feudal superior, but he was allowed a reduction (rabat) of two-thirds if the money was promptly paid down. In special cases, land transfers, whether by direct succession or otherwise, were subject to the rule of Vixen le francais, which required the payment of relief, or one year's revenue, on all changes of ownership, or a payment of gold (une maille d'or). It was obligatory on all seigniors to register their grants at Quebec, to concede or sub-infeudate them under the rule of jeu de fief, and settle them with as little delay as practicable. The Crown also reserved in most cases its jura regalia or regalitates, such as mines and minerals, lands for military or defensive purposes, oak timber and masts for the building of the royal ships. It does not, however, appear that military service was a condition on which the seigniors of Canada held their grants, as was the case in France under the old feudal tenure. The king and his representative in his royal province held such powers in their own hands. The seignior had as little influence in the government of the country as he had in military affairs. He might be chosen to the superior council at the royal pleasure, and was bound to obey the orders of the governor whenever the militia were called out. The whole province was formed into a militia district, so that in time of war the inhabitants might be obliged to perform military service under the royal governor or commander-in-chief of the regular forces. A captain was appointed for each parish--generally conterminous with a seigniory--and in some cases there were two or three. These captains were frequently chosen from the seigniors, many of whom--in the Richelieu district entirely--were officers of royal regiments, notably of the Carignan-Salieres. The seigniors had, as in France, the right of dispensing justice, but with the exception of the Seminary of St Sulpice of Montreal, it was only in very rare instances they exercised their judicial powers, and then simply in cases of inferior jurisdiction (basse justice). The superior council and intendant adjudicated in all matters of civil and criminal importance.

The whole success of the seigniorial system, as a means of settling the country, depended on the extent to which the seigniors were able to grant their lands en censive or en roture. The censitaire who held his lands in this way could not himself sub-infeudate. The grantee en roture was governed by the same rules as the one en censive except with respect to the descent of lands in cases of intestacy. All land grants to the censitaires--or as they preferred to call themselves in Canada, habitants--were invariably shaped like a parallelogram, with a narrow frontage on the river varying from two to three arpents, and with a depth from four to eight arpents. These farms, in the course of time assumed the appearance of a continuous settlement on the river and became known in local phraseology as Cotes--for example, Cote de Neiges, Cote St. Louis, Cote St. Paul, and many other picturesque villages on the banks of the St. Lawrence. In the first century of settlement the government induced the officers and soldiers of the Carignan-Salieres regiment to settle lands along the Richelieu river and to build palisaded villages for the purposes of defence against the war-like Iroquois; but, in the rural parts of the province generally, the people appear to have followed their own convenience with respect to the location of their farms and dwellings, and chose the banks of the river as affording the easiest means of intercommunication. The narrow oblong grants, made in the original settlement of the province, became narrower still as the original occupants died and their property was divided among the heirs under the civil law. Consequently at the present day the traveller who visits French Canada sees the whole country divided into extremely long and narrow parallelograms each with fences and piles of stones as boundaries in innumerable cases.

The conditions on which the censitaire held his land from the seignior were exceedingly easy during the greater part of the French regime. The cens et rentes which he was expected to pay annually, on St. Martin's day, as a rule, varied from one to two sols for each superficial arpent, with the addition of a small quantity of corn, poultry, and some other article produced on the farm, which might be commuted for cash, at current prices. The censitaire was also obliged to grind his corn at the seignior's mill (moulin banal), and though the royal authorities at Quebec were very particular in pressing the fulfilment of this obligation, it does not appear to have been successfully carried out in the early days of the colony on account of the inability of the seigniors to purchase the machinery, or erect buildings suitable for the satisfactory performance of a service clearly most useful to the people of the rural districts. The obligation of baking bread in the seigniorial oven was not generally exacted, and soon became obsolete as the country was settled and each habitant naturally built his own oven in connection with his home. The seigniors also claimed the right to a certain amount of statute labour (corvee) from the habitants on their estates, to one fish out of every dozen caught in seigniorial waters, and to a reservation of wood and stone for the construction and repairs of the manor house, mill, and church in the parish or seigniory. In case the censitaire wished to dispose of his holding during his lifetime, it was subject to the lods et ventes, or to a tax of one-twelfth of the purchase money, which had to be paid to the seignior, who usually as a favour remitted one-fourth on punctual payment. The most serious restriction on such sales was the droit de retraite, or right of the seignior to preempt the same property himself within forty days from the date of the sale.

There was no doubt, at the establishment of the seigniorial tenure, a disposition to create in Canada, as far as possible, an aristocratic class akin to the noblesse of old France, who were a social order quite distinct from the industrial and commercial classes, though they did not necessarily bear titles. Under the old feudal system the possession of land brought nobility and a title, but in the modified seigniorial system of Canada the king could alone confer titular distinctions. The intention of the system was to induce men of good social position--like the gentils-hommes or officers of the Carignan regiment--to settle in the country and become seigniors. However, the latter were not confined to this class, for the title was rapidly extended to shopkeepers, farmers, sailors, and even mechanics who had a little money and were ready to pay for the cheap privilege of becoming nobles in a small way. Titled seigniors were very rare at any time in French Canada. In 1671, Des Islets, Talon's seigniory, was erected into a barony, and subsequently into an earldom (Count d'Orsainville). Francois Berthelot's seigniory of St. Laurent on the Island of Orleans was made in 1676 an earldom, and that of Portneuf, Rene Robineau's, into a barony. The only title which has come down to the present time is that of the Baron de Longueuil, which was first conferred on the distinguished Charles LeMoyne in 1700, and has been officially recognized by the British government since December, 1880.

The established seigniorial system bore conclusive evidence of the same paternal spirit which sent shiploads of virtuous young women (sometimes marchandises melees) to the St. Lawrence to become wives of the forlorn Canadian bachelors, gave trousseaux of cattle and kitchen utensils to the newly wed, and encouraged by bounties the production of children. The seigniories were the ground on which these paternal methods of creating a farming community were to be developed, but despite the wise intentions of the government the whole machinery was far from realizing the results which might reasonably have been expected from its operation. The land was easily acquired and cheaply held, facilities were given for the grinding of grain and the making of flour; fish and game were quickly taken by the skilful fisherman and enterprising hunter, and the royal officials generally favoured the habitants in disputes with the seigniors.

Unlike the large grants made by the British government after the conquest to loyalists, Protestant clergy, and speculators--grants calculated to keep large sections of the country in a state of wildness--the seigniorial estates had to be cultivated and settled within a reasonable time if they were to be retained by the occupants. During the French dominion the Crown sequestrated a number of seigniories for the failure to observe the obligation of cultivation. As late as 1741 we find an ordinance restoring seventeen estates to the royal domain, although the Crown was ready to reinstate the former occupants the moment they showed that they intended to perform their duty of settlement. But all the care that was taken to encourage settlement was for a long time without large results, chiefly in consequence of the nomadic habits of the young men on the seigniories. The fur trade, from the beginning to the end of French dominion, was a serious bar to steady industry on the farm. The young gentilhomme as well as the young habitant loved the free life of the forest and river better than the monotonous work of the farm. He preferred too often making love to the impressionable dusky maiden of the wigwam rather than to the stolid, devout damsel imported for his kind by priest or nun. A raid on some English post or village had far more attraction than following the plough or threshing the grain. This adventurous spirit led the young Frenchman to the western prairies where the Red and Assiniboine waters mingle, to the foot-hills of the Rocky Mountains, to the Ohio and Mississippi, and to the Gulf of Mexico. But while Frenchmen in this way won eternal fame, the seigniories were too often left in a state of savagery, and even those seigneurs and habitants who devoted themselves successfully to pastoral pursuits found themselves in the end harassed by the constant calls made upon their military services during the years the French fought to retain the imperial domain they had been the first to discover and occupy in the great valleys of North America. Still, despite the difficulties which impeded the practical working of the seigniorial system, it had on the whole an excellent effect on the social conditions of the country. It created a friendly and even parental relation between seigneur, cure, and habitant, who on each estate constituted as it were a seigniorial family, united to each other by common ties of self-interest and personal affection. If the system did not create an energetic self-reliant people in the rural communities, it arose from the fact that it was not associated with a system of local self-government like that which existed in the colonies of England. The French king had no desire to see such a system develop in the colonial dependencies of France. His governmental system in Canada was a mild despotism intended to create a people ever ready to obey the decrees and ordinances of royal officials, over whom the commonality could exercise no control whatever in such popular elective assemblies as were enjoyed by every colony of England in North America.

During the French regime the officials of the French government frequently repressed undue or questionable exactions imposed, or attempted to be imposed, on the censitaires by greedy or extravagant seigniors. It was not until the country had been for some time in the possession of England that abuses became fastened on the tenure, and retarded the agricultural and industrial development of the province. The cens et rentes were unduly raised, the droit de banalite was pressed to the extent that if a habitant went to a better or more convenient mill than the seignior's, he had to pay tolls to both, the transfer of property was hampered by the lods el ventes and the droit de retraite, and the claim always made by the seigniors to the exclusive use of the streams running by or through the seigniories was a bar to the establishment of industrial enterprise. Questions of law which arose between the seigneur and habitant and were referred to the courts were decided in nearly all cases in favour of the former. In such instances the judges were governed by precedent or by a strict interpretation of the law, while in the days of French dominion the intendants were generally influenced by principles of equity in the disputes that came before them, and by a desire to help the weaker litigant, the censitaire.

It took nearly a century after the conquest before it was possible to abolish a system which had naturally become so deeply rooted in the social and economic conditions of the people of French Canada. As the abuses of the tenure became more obvious, discontent became widespread, and the politicians after the union were forced at last to recognize the necessity of a change more in harmony with modern principles. Measures were first passed better to facilitate the optional commutation of the tenure of lands en roture into that of franc aleu roturier, but they never achieved any satisfactory results. LaFontaine did not deny the necessity for a radical change in the system, but he was too much wedded to the old institutions of his native province to take the initiative for its entire removal. Mr. Louis Thomas Drummond, who was attorney-general in both the Hincks-Morin and MacNab-Morin ministries, is deserving of honourable mention in Canadian history for the leading part he took in settling this very perplexing question. I have already shown that his first attempt in 1853 failed in consequence of the adverse action of the legislative council, and that no further steps were taken in the matter until the coming into office of the MacNab or Liberal-Conservative government in 1854, when he brought a bill into parliament to a large extent a copy of the first. This bill became law after it had received some important amendments in the upper House, where there were a number of representatives of seigniorial interests, now quite reconciled to the proposed change and prepared to make the best of it. It abolished all feudal rights and duties in Lower Canada, "whether hearing upon the censitaire or seigneur," and provided for the appointment of commissioners to enquire into the respective rights of the parties interested. In order to enable them to come to correct conclusions with respect to these rights, all questions of law were first submitted to a seigniorial court composed of the judges of the Queen's Bench and Superior Court in Lower Canada. The commissioners under this law were as follows:--

Messrs. Chabot, H. Judah, S. Lelievre, L. Archambault, N. Dumas, J.G. Turcotte, C. Delagrave, P. Winter, J.G. Lebel, and J.B. Varin.

The judges of the seigniorial court were:--

Chief Justice Sir Louis H. LaFontaine, president; Judges Bowen, Aylwin, Duval, Caron, Day, Smith, Vanfelson, Mondelet, Meredith, Short, Morin, and Badgley.

Provision was also made by parliament for securing compensation to the seigniors for the giving up of all legal rights of which they were deprived by the decision of the commissioners. It took five years of enquiry and deliberation before the commissioners were able to complete their labours, and then it was found necessary to vote other funds to meet all the expenses entailed by a full settlement of the question.

The result was that all lands previously held en fief, en arriere fief, en censive, or en roture, under the old French system, were henceforth placed on the footing of lands in the other provinces, that is to say, free and common socage. The seigniors received liberal remuneration for the abolition of the lods et ventes, droit de banalite, and other rights declared legal by the court. The cens et ventes had alone to be met as an established rent (rente constituee) by the habitant, but even this change was so modified and arranged as to meet the exigencies of the censitaires, the protection of whose interests was at the basis of the whole law abolishing this ancient tenure. This radical change cost the country from first to last over ten million dollars, including a large indemnity paid to Upper Canada for its proportion of the fund taken from public revenues of the united provinces to meet the claims of the seigniors and the expenses of the commission. The money was well spent in bringing about so thorough a revolution in so peaceable and conclusive a manner. The habitants of the east were now as free as the farmers of the west. The seigniors themselves largely benefited by the capitalization in money of their old rights, and by the untrammelled possession of land held en franc aleu roturier. Although the seigniorial tenure disappeared from the social system of French Canada nearly half a century ago, we find enduring memorials of its existence in such famous names as these:--Nicolet, Vercheres, Lotbiniere, Berthier, Rouville, Joliette, Terrebonne, Sillery, Beaupre, Bellechasse, Portneuf, Chambly, Sorel, Longueuil, Boucherville, Chateauguay, and many others which recall the seigniors of the old regime.

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