No. XIV.

Observations on the Report of the Committee of the whole Council, respecting a Change in the Tenures of the Province of Lower Canada*.

Of all the legislators who have preceded the present age, those have been the wisest who have come nearest to an establishment of equality among the subjects. The wisest of all, because he had the Spirit of GOD, whom we adore, was Moses; he divided the lands amongst the Hebrews with so much justice and equality, that the smallest complaint was never heard. But it would have been little to have established this equality, had he not used the means of maintaining it. To succeed, he rendered these lands by their nature inalienable, and with so much wisdom, that the inalienability constantly supported itself against the efforts of avarice, which generally overturns all things. In such manner, that if any one had alienated his estate in a time of calamity, he, or his heirs, if he had any, recovered his property the year of the jubilee. Thus, every fifty years, the ancient distribution was re-established, in full right. He did more: he provided in such manner for the liberty of individuals, that, if any one had trafficked away a part of his property, he recovered it at that epoch. Thus lost members were restored to their country, who, in re-entering into the possession of their lands, recovered the title of citizens, and found themselves in a condition to fulfil the functions of a citizen. Hence, among them were never known those seditious demands of new registers, or new partitions, so common in Greece, any more than those Agrarian laws so often asked by the Romans.

If it was at present a question of a new establishment, of giving a form to a new people, a more excellent model could not be proposed. But the present question is only of procuring advantages to a people already established; of correcting faults in the culture of a delicate plant, and not of rooting it up: it is a tree, of which the trunk may be preserved, and provision made for extending its roots.

It is a tree that may be pruned; but care must be taken not to destroy it, under a pretext of giving more vigour to the roots already formed, by depriving them of the means of spreading and dividing themselves into new branches, by removing the surrounding earth. This is what must necessarily happen, if the present tenures be abolished, and the soccage substituted in

* On the 25th of August, 1790, a reference was made by His Excellency the Right Honourable Guy, Lord Dorchester, to the Honourable the Legislative Council of the province, upon the expediency of changing the tenures of the country into the tenure by free and common soccage; and it is upon their report that the above observations were made. For further information, see first and seventh Reports of the Committee of the House of Assembly.

their place, without obviating two principal inconveniences-the future oppression of the husbandmen, and the ruin of the present seigniors.

In fact, if the rights of lods et ventes and of bannalité* be retrenched, without a compensation weighed in the balance of justice, it will be lopping off the head of this tree to give more vigour to the roots. The seigniors must perish, whilst the present race of husbandmen would reap the advantage. But, on the other hand, if the future seigniors be permitted to sell their lands uncleared, and to grant leases on such conditions and charged with such services as they please, it will be taking away from individuals the means of procuring lands for their children; whence the future husbandmen would be exposed to oppression. Thus, the head of the tree being lopped off, the root would be seen sensibly to wither, and the tree would perish. Thus, to a happy and truly free people would succeed a people of slaves and wretches— a people without hope of procuring themselves a decent support, and, consequently, without any certain means of educating their children; by consequence, without morality, and void of probity.

This has not escaped the vigilant attention of the Right Honourable Lord Dorchester, in the order of reference. His views are, to establish in the province the kind of tenures best calculated to insure the progress of agriculture, to render the people happy, to attract new settlers, and procure a numerous population. Views truly wise, and worthy the representative of a great King.

To attain this end, His Excellency wishes the soccage to be considered conformable to the clauses inserted in the statute 12th Car. II., cap. 24; that the advantages and disadvantages of this tenure may be compared with the advantages and disadvantages of the present tenures: and in case a change should appear to be advantageous, the mode to be chosen of doing it without prejudice to the rights of individuals and the general interest of the country is shown. Such is the certain route marked out by His Excellency, in following which we cannot run any risk of error.

The statute 12th Car. II., cap. 24, retained the tenures in soccage, frank almoigne, petit serjeanty, the honorary services of grand serjeanty, and the copyhold, or tenures by copy of court-roll. This may be seen in Blackstone (Chap. I. of the modern Tenures).

The soccage, in its most ample signification (says this respectable author), seems to denote a tenure by any certain and determinate service. It is of two species: the free soccage, of which the services are honourable; and the villain soccage, of which the services, though certain, are of a base nature. Such as hold by honourable services are called liberi sokemanni, free sokemen; freeholders, according to Glanvil, &c. &c.

The grand criterion, the touchstone by which to distinguish this kind of

The suppression of bannal mills, it is to be feared, might be prejudicial to individuals; for if a toll be not fixed for grinding, he whose mill might be most advantageously situated, would have it in his power to avail himself of this advantage, to vex those who might be obliged to have recourse to him, in the too-frequent unhappy case of a universally dry

season.

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tenure, is by its services being certain and determinate; such, in particular, are the petit serjeanty, tenure in burgage, or the manner in which boroughs and towns hold of their lords, and gavel-kind. This is confirmed by what he says a little higher, that the military services (as escuage itself), while they remained uncertain, were equivalent to knight service; and that the instant they were rendered certain, they changed both their nature and name, and were called soccage: from whence he concludes, it is the determination of the services that gives the name to this tenure.

Nothing, adds he, better proves a great liberality, a great privilege, than the certainty of the nature of the services which frees the tenant from the obligation of obeying, without delay, the caprice of a seignior, who called on him when he pleased, as in the knight service; for which reason Britton, who describes the tenure in soccage, under the name of fraunke ferme, says, that they consist in lands, of which the nature of the services, being of chivalry, has been changed by feoffment, for certain and determined annual services, among which were reckoned neither homage, ward, marriage, or relief.

Blackstone afterwards proves, that the tenure in soccage is not less of feudal origin than the chivalry tenure; and that by the ten instances of comparison, which are too long to insert here, it suffices to say a few words, en passant, on two of these instances.

At the fourth, he says, that the tenure in soccage was of common right, subject to aids to the lord, when his son was knighted, when he married his eldest daughter, &c. &c., which aids were fixed by the statute of Westminster 1, chap. 36, at 20s. for every £.20 per annum; these aids which were originally mere benevolences, were afterwards enacted as matter of right. The statute 12th Car. II., abolished them, for what reason is easily seen. These aids, in the first instance, were only benevolences; they were raised by vexation into absolute rights; the seigniors became oppressors.

But it was not so with respect to the relief, which was paid by the heir at the death of his ancestor, and which was a year's revenue of the estate held in soccage, whether considerable or not. This relief which Bracton does not look upon as a real relief, but simply as quædam præstatio loco relevii in recognitionem domini, was retrenched by the statute of Edw I., chap. 1., which declares that the free sokeman shall pay no relief, but after the death of his ancestor shall pay double the usual rent.

The statute 12th Car. II., reserves this relief; and on lands in fee simple, holden by a rent, the relief is still due on the death of the tenant.

It would be too long to recite the tenures in villainage simple and privileged; the different modes of possessing them and their different services; what they have in common with free soccage, and in what they differ; it suffices to remark, that the statute 12th Car. II., chap. 24, sec. 7, has reserved the tenure by copy of court-rolls, with all the services dependent thereon; and, consequently, arbitrary rights, at the will of the lord, are yet acknowledged in England. It is true that the courts of justice have confined these rights within moderate bounds, to prevent their absorbing the inheritance, insomuch that, except under particular circumstances, never more

than two years' revenue of an estate are allowed in case of succession or alienation*.

Such are the tenures that have prevailed in England since the statute 12th Car. II. It is clearly seen that the free soccage, if it does not properly admit a relief, admits, at least, of a compensation.

The villain soccage admits the rights of heriot, in lieu of the relief, to be paid after the death of the tenant, by his heir; it admits the rights of alienation, even arbitrarily (at least by fiction), and according to the will of the lord; though, in one sense, they become certain, because the courts, in their judgments, will not suffer them to exceed two years' revenue on the lands they thus held.

Our roturier tenures, according to the custom of Paris, do not admit of relief in any case; and the alienation fines, called lods et ventes, can never extend to two years' revenuet. These are the tenures I am about to show, according to the custom of Paris, with the tenure in fief in capite, or immediately from the King, and the tenure in arrière fief.

All the tenures of Canada are conformable to the custom of Paris, and are divided into noble and roturier.

The noble tenures are all subject to the rights of francs fiefs and nouveaux acquêts, when they fall into hands of roturiers or in main-morte; that is, a fine which these roturiers or holders in main-morte, becoming possessors of noble estates, are obliged to pay to the King, when he shall be pleased to order a declaration of it.

Those noble tenures are either francs aleux, or fiefs subject to services or redevances; or fiefs in frank almoigne. The only object, at present, being to obviate the odium meant to be thrown on our tenures, it suffices to mention the fiefs held by services and redevances.

The fiefs are held either immediately or mediately of the King. The immediate vassal of the King, owes him,

1st. Fealty and homage, with the aveu et dénombrement.

2nd. In case of sale or other act equivalent to a sale, the new possessor owes the quint §.

3rd. In case of succession, in the collateral line only, the heir owes the relief.

4th. In those according to the Vexin le François, which are but few, the relief is due on every mutation, but never any quint.

* Notwithstanding the modifications so wisely established against oppression, can any one dissemble that these services are very onerous? In our present tenures, are there any that can be put in comparison with these?

They are but a twelfth part of the amount of the purchase-money.

The King orders this declaration nearly every forty years, according to Ferrière, verbo franc fief; this change may be looked upon as uncertain; its rate being according to the prudence of the officers appointed for this purpose, from a state of the revenues arising from the possessions.

The fifth part of the purchase-money.

It is a year's revenue of the said fief, or a sum fixed by award, or by offer of the heir, at the option of the seignior. This right can be paid but once in a year, however numerous such mutations may be in that period.

5th. The military service in virtue of the ban, if the tenant be not privileged*.

The mediate vassal of the King owes to the seignior of whom he immediately holds, all the above dues, except the military service, which is never due but to the King.

Such are the burdens of common right; there are some others very reasonable and of great advantage to the public good, imposed by clauses in the concessions cited in the report of the Solicitor-General, as well as in the replies of the Honourable Charles de Lanaudièret.

I say nothing of La Justice,

1st. Because it is fallen into disuse, or useless since the conquest, particularly by the Quebec Act.

2nd. Because it would create confusion in the present administration of justice.

3rd. Because it is not inherent in the feudal tenure, fief et justice n'ont rien de communt.

If from all these rights be excepted the right of franc fief, and of nouveaux acquêts, it may be said, that the noble tenures have no dues repugnant to the soccage, because, in this case, they have none but what are certain.

I may venture to say, they are neither onerous to the tenants nor uneasy to the government. And as the statute 12th Car. II., by the sect. 6, of cap. 24, reserves all these rights, except for estates held immediately of the King in capite, I may add, that they have nothing contrary to this statute, except what may regard the rights owing to the King. What will be said of the rotures will show that these first tenures are not oppressive for the censitaires.

A juster idea cannot be given of the roturier tenures, considered with respect to their nature, than by using the proper terms of Ferrière, in his Dictionnaire de Droit. His words are, verbo roture :

"Roture is an inheritance held en censive, different from fiefs, which are inheritances held nobly. Fealty and homage, the dénombrement, relief, quint, main-mise, retrait féodal, forfeiture, have no place in rotures.

“Inheritances held in roture owe but two principal rights; the annual cens, and the lods et ventes, which are due from the new proprietor to the seignior censier, in virtue of sale, or other conveyance equivalent to a sale.

"To these two rights must be added the fines for non-payment of the cens, or for failure of notifying the sale; the first is of five sols Parisis §, the second of three livres, fifteen sols."

To form any other idea of the rotures under the custom of Paris, is to

This duty has never been required in Canada.

They are to give notice of what mines may be found in the said fiefs; to reserve oak trees proper for building vessels; and to furnish the necessary ground for erecting forts on. -See first Report of the Committee of the House of Assembly, page 69.

Ferrière, titre premier des fiefs en general, paragraphe premier No. 35, page 54, to the end.

Sols Parisis are three-pence and one-third, and three livres fifteen sols make thirtyseven pence halfpenny.