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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 their place, without obviating two principal inconveniences - the future oppression of the husbandman, 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.
* 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.
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 shewn. Such is the certain route marked out by his Excellency, in following which we cannot run any risk of error. [Here follows a discussion of those English tenures, which were preserved by the statute of 12th Car. II., cap. 24.]
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' revenue.* These are the tenures I am about to shew, 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.
* They are but a twelfth part of the amount of the purchase-money.
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,
Ist. Fealty and homage, with the aveu et dénombrement.
2d. In case of sale or other act equivalent to a sale, the new possessor owes the quintot
3d. In case of succession, in the collateral line only, the heir owes the relief. I
4th. In those according to the Vexin le François, which are but few, the relief is due on every mutation, but never any quint.
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
* 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.
& This duty has never been required in Canada.
Solicitor-general, as well as in the replies of the honourable Charles de Lanaudière.*
I say nothing of La Justice,
1st. Because it is fallen into disuse, or useless since the conquest, particularly by the Quebec Act.
2d. Because it would create confusion in the present administration of justice.
3d. Because it is not inherent in the feudal tenure, fief et justice n'ont rien de commun.t
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 12 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 shew 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-misse, 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.
* 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 général,” paragraphe premier, No. 35, page 54, to the end.
“ 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 abandon the best law authorities. It remains to shew, that every man has a right to oblige the seignior to grant him lands, at a very moderate and certain return.
The right and facility that every individual in the province has of having lands under the present tenures, is manifestly proved by the ordinances cited by the Solicitor-General and the Honourable Charles de Lanaudière, as well as by the clauses of the concessions of seigniories, as these gentlemen have also well remarked.
1. By these ordinances, and by these clauses, it is expressly forbid to the seigniors to sell lands uncleared, on pain of re-union, to the domain of the crown.
2. It is expressly ordained, that the seigniors shall grant lands to all who ask for them.
3. If the seigniors refuse to grant them, after being required so to do, the persons asking the said lands shall make complaint to the Governors, &c. which Governors are authorised to grant them to them, under the name and for the profit of the King, at the same rate as the other concessions of the said seigniory.
To shew that the charges and redevances of the rotures are certain and moderate, it suffices to expose the highest rentes that are known to have been stipulated prior to the conquest, without examining if any seignior, under the silence of the Government since that epoch, may have stipulated for higher, or put in practice any vexation.
1. The greatest rentes before the conquest, when they were stipulated to be in cash, were two sols tournois per superficial acre.t
2. Those which were stipulated in money and wheat, were of
* Sols Parisis are three pence and one-third; and three livres, fifteen sols make thirty-seven pence balfpenny.
+ Two sols tournois are equal to a penny and one-ninth ; a sol tournois being five-ninths of a penny.