SEIGNIORIAL TENURE
The government of Canada in the days of the French régime 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effectually broken down, and now, for the most part withdrawn from the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 régime--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_ _français_, 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-Salières. 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 _Côtes_--for example, Côte de Neiges, Côte St. Louis,
Côte 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-Salières 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 (_corvée_) 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,
René 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 mêlées_) 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, curé,_ 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 régime 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 banalité_ 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. Lelièvre, 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 arrière
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
banalité_, and other rights declared legal by the court. The _cens et
ventes_ had alone to be met as an established rent (_rente
constituée_) 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, Verchères,
Lotbinière, Berthier, Rouville, Joliette, Terrebonne, Sillery,
Beaupré, Bellechasse, Portneuf, Chambly, Sorel, Longueuil,
Boucherville, Chateauguay, and many others which recall the seigniors
of the old régime.