ment and proportionable debility of the French colony, operating to a discouragement of the royal grants, as well as the grants of the subject, there can be no ground for holding the grantees to a rigorous performance of the conditions of their grants.

That it was among the main causes of that low condition in which Canada was found at the British conquest, is deducible from the probability that many thousands of families had found their account in emigrating from the exuberant population of the kingdom of France, if the Government had given their lands here upon easy terms, and especially in the fertile regions and moderate climates on the banks of the rivers and lakes in the south and south-west.

That the discouragement of that system, to the settlement of the old French grants, must, in future, greatly increase; the population depending now upon the introduction of British subjects, who are known to be all averse to any but English tenures*; and the Canadian seigniors, of course, be left without a hope of multiplying their censitaires, except from the predilection of the descendants of the French planters to usages no longer prompted by interest nor recommended by example.

That the grant of the waste lands of the Crown in free and common soccage is essential to the growth, strength, defence, and safety of the province.

That unless the old French seigniories can be settled upon terms as advantageous to the husbandman as the lands of the Crown, their land-market must be at a stand, to the detriment of the proprietors, until the cultivation of the waste lands of the Crown is damped, by their remoteness from all watercarriage and the conveniences and benefits of commerce.

That, with the advantage of a vicinity to the navigable waters, and a conversion of the tenures, the seigniories will probably be the first to be fully cultivated; and with an increase of profit to the proprietors, under that ample dominion which they will then enjoy over their lands, for settling them upon such terms as themselves may concert, to form a populous tenantry, and lay a foundation in property for that perpetuity of their names and families which a wise and well-balanced government will be inclined to encourage and support.

That the King's roturier tenants cannot fail to wish for a conversion and discharge from the cens et rentes and lods et ventes, and all the other feudal burdens connected with the tenure under which they now hold.

That motives of interest will naturally make it the desire also of every seigniorial censitaire, to stand upon the same foundation of exemption with the other landholders of the colony; but as this commutation for a discharge of the rents and dues to the landlords must necessarily depend upon private conventions between them and their tenants, and involving considerations out of the contemplation of any but the parties reciprocally interested, their cases cannot be the objects of special and particular legislative provision; perhaps the surest means of securing to the tenant a fair compact, will be to hold the

* This aversion, caused by national prejudices, soon ceases when the nature of the French tenure is well understood,

lord to his dues to the Crown, until he has discharged his tenants from the feudal incumbrances in his own favour.

That the prerogative is competent to put the waste lands of the Crown under a soccage tenure; but the legislative interposition is necessary to make that tenure universal.

That if this is to be the work, not of Parliament but of the Colonial Legislature, the Royal instructions given for the greater security of the property of the subject will require an Act with a probationary or suspending clause, until His Majesty's approbation can be obtained.

That an absolute and universal commutation of the ancient tenures, though for the better, would be a measure of doubtful policy; but that no substantial objection occurs against giving such individuals that benefit as desire it, and especially to such of the seigniories whose tenants or censitaires shall conceive it to be for their own, as well as for the interest and benefit of their landlords, and may therefore signify their consent to the change.

That the ends may be accomplished by a law, with clauses to the following tenor or import :

Be it enacted, &c. &c.*

DISSENT.

Mr. Mabane's reasons of dissent from the resolution and motion of the Chief Justice, adopted by the Committee.

Because the resolutions moved for do not appear to apply to the object of the reference.

Because it appears that the slow progress of population and settlement, under the government of France, cannot be ascribed to any inherent vice in the several tenures under which lands are held in the colony; that it arose from the difficulties which the first settlers found in contending with fierce and savage nations which surrounded them; from their frequent wars with the British colonies; and, above all, from their repeated expeditions in the upper countries, and towards the Ohio, in which the ambitious policy of France had forced them to engage.

Because it appears evident, from the rapid and almost unexampled progress of population in the province (from its own resources), being from 65,000 souls in the year 1766, to about 120,000 in 1784, and who are now chiefly employed in agriculture, that the present tenures are not inimical to population and settlement of the colonyt.

Because the King's rights in the ancient tenures of the country being

* No change of this kind has yet taken place. I understand that the Honourable Mr. Hale, seignior of St. Anne, has lately renewed an application for a change of tenure in that part of his seigniory not yet conceded, which application was formerly made by Mr. De Lanaudière, seignior of the same place; but I am not yet acquainted with the result.

+ The Honourable Mr. Cuthbert, in his examination before the Committee, said: "That in no country where he had travelled, had he met with such a dense agricultural population as in Canada, except in French Flanders and Brabant.

expressly reserved in the Act 14th of the King, and by His Majesty's gracious bounty appropriated to defray the expenses of civil government, ought not to be relinquished or sacrificed without an equivalent compensation.

Because, however unproductive the territorial revenue may have hitherto been, from the indulgence or supineness of government, no judgment can be formed, from the sums actually collected, of the revenue that may hereafter arise therefrom, which must increase in proportion to the population and commerce of the province.

Because the predilection of the native inhabitants of the province to their ancient tenures and laws ought not to be interfered with, unless by their own consent, and on the strongest and clearest grounds of public utility.

Because the alterations proposed by the resolutions, or any other conversion of tenure, tending to give the seignior a more absolute and unconditional possession of the fief, would not only be a sacrifice of the King's rights, but would defeat the wise intentions and beneficial effects of the arrêts of 1711 and 1732, and the declaration of 1743, by which the seignior is obliged to grant, to such persons as will apply for them, for the purpose of improvement, lands in concession, subject only to the accustomed and stipulated rents and dues; and upon his non-compliance the Governor is authorized, on the part of the Crown, and for the benefit thereof, to the exclusion of the seignior for ever, to concede or grant the lands so applied for. By the same law the seigniors are forbid, under pain of nullity and a reunion to the Crown of the land attempted to be sold, to sell any part of their improved lands, or en bois debout; dispositions of law highly favourable to the improvement of the colony, and which secure to the children of the censitaires, or others, the means of settlement, and of employing their industry in cultivation, on fixed and moderate terms; whereas, if the conversion of the seigniories into free and common soccage should take place, the children of the present inhabitants of the country, and all others desirous to settle thereon, should be left entirely subject to the arbitrary exactions of the seigniors, to their infinite prejudice, and the manifest detriment of the country's improvement.

Because it appears that the services, or burdens, to which the censitaires, under concessions from seigniors, are subject, are few, clearly understood and ascertained, and are by no means onerous or oppressive.

J. WILLIAMS, C.L.C.

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 wretchesa 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.