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.

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 itt.

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 fi-f; 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.