CHAPTER VIII

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effectually broken down, and now, for the most part withdrawn from the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.

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