ADDRESS AT THE BAR OF THE LEGISLATIVE ASSEMBLY OF CANADA, DELIVERED ON THE 11TH AND 14TH MARCH, 1853, ON BEHALF OF CERTAIN PROPRIETORS OF SEIGNIORIES IN LOWER CANADA, AGAINST THE SECOND READING OF THE BILL INTITULED: "AN ACT TO DEFINE SEIGNIORIAL RIGHTS IN LOWER CANADA, By CHRISTOPHER DUNKIN, M. A. ADVOCATE. QUEBEC: PRINTED AT THE CANADA GAZETTE OFFICE. 1853. ADDRESS. MR. SPEAKER: On behalf of a number of proprietors of Seigniories in Lower Canada, 1 appear before you, to represent certain objections which they feel themselves justified in urging, to the further progress of the Bill, which has just been called up before this Honorable House. And I do not say anything extraordinary, when I say that I so appear with a good deal of embarrassment, and even of regret. I am before a tribunal, certainly of an extraordinary-certainly also of a very high-character; and I have to contend against strong prepossessions and powerful interests. I have to speak on behalf of clients, few in number, and of extremely small influence in the community; and I feel that I labour under difficulties of a peculiar character, as well froin the physical impossibility of speaking in both the languages used by Members of this Honorable House, as from other causes. I should be happy, were I able to do so, to address the House in both languages; but I know that those Members whose language I do not use, will be capable of understanding me; and I trust they will feel that my failure to address them in their own tongue, proceeds from no disrespect. Another regret also that I feel on this occasion, is, that I am obliged to stand here alone. The season of the year, and the indifferent health of the learned Counsel-greatly my superior who is associated with me, have prevented him from appearing before you; and no one more than myself feels how impossible it is for me to fill his place. But I have not felt that I had a right to decline on this account to give my services when required. I have not shrunk from the duty; because, though I feel my inadequacy, I also feel confidence in the fairness of this high tribunal. I believe that its members will listen patiently, honestly, and impartially, because of their high position, and in spite of the insignificance of him who speaks; and I am, besides, so convinced of the truth of what I have to say, that I do not believe I shall speak in vain. Let me say here, and say earnestly, that I do not stand here as the apologist for the Seigniorial Tenure. I have nothing to do with its merits, if it have any; nor with its demerits, be they what they may. I am not here the partizan of a system; but the Advocate of individuals, whose misfortune it is that their property is of a peculiar character. As their Advocate, I speak merely of law; I have to convince you that these my clients are really proprietors, who have entered into contracts, who have rights recognized and guarded by the law, which rights this measure will most injuriously affect. When I take this position, I speak under sanction of the Speech at the opening of this Session, from the Throne, and of the reply of this Honorable House. I know that it is a position to which every branch of this Parliament is pledged; that it is admitted, that no rights of property must be disregarded, nor legal decisions of Courts set aside. Thus speaking then, under these sanctions, in spite of the prepossessions and interests against which I have to strive, notwithstanding the measure I oppose is introduced by an Honorable Member of an Administration generally understood to be strong enough in the confidence of this House to carry its measures,-I still have confidence in the justice of my cause, and in this High Tribunal; I believe that I shall not labour in vain. I have to lay before this House and the country, facts not generally known. Much has been published to the world, since this subject was last discussed, which had previously been obscure. Several volumes have been printed, which contain the greater part of the titles of the Seigniories of Lower Canada; and besides these, reports, in both languages, of a number of Arrêts which had never previously seen the light. There have also been published important extracts from the correspondence of high officers of the French Government, of the Governors and Intendants in Canada, the Ministers of State, and even of the Sovereign. And it is my belief-my full and firm belief-that from these titles now first placed in a position to be understood, these Arrêts now first made known, this correspondence now first opened to historical research and legal deduction, a case can be made out, which could never before have been made out. I have not the vanity to hope that I shall be able to make out such a case, by merely drawing new arguments from old facts; but I have studied these volumes, as attentively as possible, and as I believe non e other ever did study them; and it is upon this close examination that I found my opinion. Their contents are not arranged in order either of time, or of place; and the French and English versions are not even arranged in the same order. This I mention, to show the difficulty of studying them; and from no intention of imputing blame to those who compiled them. In going over them, I soon found that to understand their contents, it would be necessary to arrange them in the order of their dates; and I have therefore so done. Thus arranged, I have carefully gone through them all, and have ascertained with tolerable accuracy to what Seigniory each title refers. I think I have made out a nearly perfect list of them; that I understand all the titles; and I now say, that from this examination of the whole, and from the comparison of each part with the rest, I have been forced to conclusions to which I never thought I should arrive,-to the conviction, that the fact in regard to this question is that which few of late years have believed. I enter into these explanations, because I may be thought to owe an apology to the House for laying down propositions, for which those who have not studied the subject so carefully as myself are not prepared. If I fail to bring forward good reasons, on my head must be the responsibility. I believe there is no question of the truth of one proposition-that it has of late been held as the fixed tradition of the country, that the Seigniors are not proprietors are not what an English lawyer would call holders of an estate in fee simple; but are rather trustees bound to concede at low rates of charge to all who apply to them for land. On this proposition alone, can the provisions of this Bill possibly be justified. If this be properly held, I admit that much is to be said in favour of it. If the Seigniors were originally merely trustees bound to concede at low charges and reserves, it may follow that only a moderate degree of mercy should be dealt out to them. Still, even on that supposition, much may be said, owing to the peculiar position in which they have stood since the cession of the country. It would have been easy-and it is common-to object to the measure before the House on this latter ground; for, supposing even that before the cession Seigniors were bound to concede without exacting more than a certain rent, or reserving water courses, wood, banality or any thing else, still it may be argued that for ninety-three years the machinery of such old law has ceased to exist; that the Courts and the Legislature and the Government have treated them as absolute proprietors, and thus have changed the quality, so to speak, of their tenure, and placed them in a new position. This being so, it has been argued, and I think properly, that it would be hard to fail to respect those rights of property which such a usage has established. My duty to my clients, however, and to truth leads me not to stop short at this argument. It is my duty to object altogether to the proposition on which it is attempted to defend the present Bill; and I do now distinctly deny the proposition, that the Seigniors are to be looked upon as trustees for the publicas agents bound to discharge duties of any kind whatever. My proposition, on the contrary, is, that the Seigniors are and always have been proprietors of real estate; that whatever interference may ever have taken place with reference to their property, has been arbitrary, irregular, inconsistent with principle, and not equal in extent to the interference exercised over the property of the Censitaire. The grants to the Seigniors were grants of the soil, with no obligation like that supposed; and though during certain periods, their property was interfered with, it was never interfered with to the extent to which similar interference took place in respect to the property of the Habitant. If the Seigniors were not holders of property, there were no such holders; if they were not proprietors, there were none who could consider themselves so. I am aware, that in this statement I run counter to traditions of late currently held-to doctrines which are supported by the authority of men for whom I have the highest respect, and from whom I differ with reluctance; but from whom I dare to differ nevertheless, because I believe that I have looked more closely than they have done, or could do, into the titles and Arrêts, which form the evidence on this subject. I neither reflect on their ability nor on their integrity; I do not doubt the honesty of their conclusions; but at the same time, I cannot help seeing that their doctrines were well fitted to obtain popular credence, because it is always popular to tell the debtor that his obligation is not justly incurred. I cannot resist the force of the evidence which has convinced me, that on this subject, circumstances have given currency to opinions which will be found on examination to be as destitute of foundation, as any the most absurd of opinions ever vulgarly entertained. If the Seigniors be trustees and not proprietors, this much must be concededthat their capacity of trustees must arise, either from the incidents of the law in France before their grants; or from something which took place at the time of making the grants-from something done here in the colony, or by the authorities in France, before the cession; or, lastly, from something done since the cession of Canada to the British Crown. On all these points, I maintain that there is nothing to show the Seigniors to have been trustees, and not proprietors-everything to show that whatever interference was exercised over their property, was of an abnormal character. As to the tenor of the prior French law, interpreting the subsequent grants in Lower Canada, I will not say much; because, though addressing a tribunal, I am not addressing a body composed exclusively of professional men, and ought not therefore to talk too abstruse law. I shall go as little as possible into details; but, venturing as I do on a position which professional men will and must attack, it is necessary for me to state, in some detail, my reasons for the conclusions to which I come. It would be a singular thing, considering what we know of France, if in the seventeenth and early part of the eighteenth centuries, any idea should have been entertained by the French Crown, of creating a body of aristocratic land-holders, as mere land-granting trustees for the public, especially for a portion of the public then considered so low as to be unworthy of attention. For ages, indeed down to the great revolution in the 18th century, the doctrine which prevailed in France, was a doctrine which made public trusts a property; not one which made of property a public trust. The Seignior who was a Justicier, was the absolute owner of all the many and onerous dues, which he collected from the people subject to his control. The functionaries, even, whom he employed to distribute the justicesuch as it was which he executed, held their offices for their own benefit-bought them and sold them. Trusts were then so truly property, that the majority of the functionaries of the very Crown itself possessed their offices as real estate, which might be seized at law, sold, and the proceeds of the sale dealt with just as though the offices had been so much land. The whole system regarded the Throne as worthy of the very highest respect; the Aristocracy as worthy of a degree of respect only something below that accorded to the Crown; the country population, as worthy of no respect at all. Was it at a time when public trusts were property; when the masses were only not slaves; when we must suppose that the French King, about to settle a new and great country, would naturally seek to introduce there something like the state of things which prevailed in the old country; was it, too, when the King was here creating Seigniors, with the prerogatives of Hauts Justiciers, and raising some of them to high rank in the peerage; that he gave to these his grantees, what only purported to be property but was really a public trust, and this trust to be executed in behalf of a class for whose welfare he cared next to nothing? The idea is natural to us; because we associate the power of the Crown with the happiness and welfare of the people governed. We are so sensitive, that we shrink, when speaking of the classes of old called the lower orders, from calling them by that name; but this was not so then. Then the masses were emphatically the lower orders; or rather they were hardly an "order" at all. This was the state of things here, at the time of the making of these grants. Now, under the French system, there were then four principal modes of holding real estate. It was often held under certain limitations. All who did not hold by the noblest and freest tenure, may be said (if one must use a modern term) to have held in trust; not, however, in trust for the behoof of those below, but for that of those above them. Certain property, in France and in Lower Canada, was held in franc aleu noble-free land held by a noble man-held by a noble tenure, of no one, and owing no faith nor feudal subjection to any superior. There was again another kind of property, held in franc aleu roturier—a property incapable of the attributes of nobility, but in other respects free. A third description was that held in fief or seigneurie; and lastly there were lands held en roture or en censive. But all these kinds of property were alike real estate, held by proprietors. The holder |