Lord Elgin by Sir John George Bourinot (ebooks online reader .txt) 📖

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once at the head of practically independent feudatories, had been effectually broken down, and now, for the most part withdrawn from the provinces, they ministered only to the ambition of the king, and contributed to the dissipation and extravagance of a voluptuous court.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