It is said by those who were present on this interesting occasion that His Excellency was the most astonished person in the council chamber. Mr. Fennings Taylor, the deputy clerk with a seat at the table, tells us in a sketch of Macdonald that Lord Elgin's face clearly marked "deep displeasure and annoyance when listening to the speaker's address," and that he gave "a motion of angry impatience when he found himself obliged to listen to the repetition in French of the reproof which had evidently galled him in English." This incident was in some respects without parallel in Canadian parliamentary history. There was a practice, now obsolete in Canada as in England, for the speaker, on presenting the supply or appropriation bill to the governor-general for the royal assent, to deliver a short address directing attention to the principal measures passed during the session about to be closed.[14] This practice grew up in days when there were no responsible ministers who would be the only constitutional channel of communication between the Crown and the assembly. The speaker was privileged, and could be instructed as "the mouth-piece" of the House, to lay before the representative of the Sovereign an expression of opinion on urgent questions of the day. On this occasion Mr. Macdonald was influenced entirely by personal spite, and made an unwarrantable use of an old custom which was never intended, and could not be constitutionally used, to insult the representative of the Crown, even by inference. Mr. Macdonald was not even correct in his interpretation of the constitution, when he positively declared that an act was necessary to constitute a session. The Crown makes a session by summoning and opening parliament, and it is always a royal prerogative to prorogue or dissolve it at its pleasure even before a single act has passed the two Houses. Such a scene could never have occurred with the better understanding of the duties of the speaker and of the responsibilities of ministers advising the Crown that has grown up under a more thorough study of the practice and usages of parliament, and of the principles of responsible government. This little political episode is now chiefly interesting as giving an insight into one phase of the character of a public man, who afterwards won a high position in the parliamentary and political life of Canada before and after the confederation of 1867, not by the display of a high order of statesmanship, but by the exercise of his tenacity of purpose, and by reason of his reputation for a spiteful disposition which made him feared by friend and foe.

Immediately after the prorogation, parliament was dissolved and the Hincks-Morin ministry presented itself to the people, who were now called upon to elect a larger number of representatives under the act passed in 1853. Of the constitutionality of the course pursued by the government in this political crisis, there can now be no doubt. In the first place it was fully entitled to demand a public judgment on its general policy, especially in view of the fact, within the knowledge of all persons, that the opposition in the assembly was composed of discordant elements, only temporarily brought together by the hope of breaking up the government. In the next place it felt that it could not be justified by sound constitutional usage in asking a parliament in which the people were now imperfectly represented, to settle definitely such important questions as the clergy reserves and the seigniorial tenure. Lord Elgin had himself no doubt of the necessity for obtaining a clear verdict from the people by means of "the more perfect system of representation" provided by law. In the debate on the Representation Bill in 1853, John A. Macdonald did not hesitate to state emphatically that the House should be governed by English precedents in the position in which it would soon be placed by the passage of this measure. "Look," he said, "at the Reform Bill in England. That was passed by a parliament that had been elected only one year before, and the moment it was passed, Lord John Russell affirmed that the House could not continue after it had declared that the country was not properly represented. How can we legislate on the clergy reserves until another House is elected, if this bill passes? A great question like this cannot be left to be decided by a mere accidental majority. We can legislate upon no great question after we have ourselves declared that we do not represent the country. Do these gentlemen opposite mean to say that they will legislate on a question affecting the rights of people yet unborn, with the fag-end of a parliament dishonoured by its own confessions of incapacity?" Hincks in his "Reminiscences," printed more than three decades later than this ministerial crisis, still adhered to the opinion that the government was fully justified by established precedent in appealing to the country before disposing summarily of the important questions then agitating the people. Both Lord Elgin and Sir John A. Macdonald—to give the latter the title he afterwards received from the Crown—assuredly set forth the correct constitutional practice under the peculiar circumstances in which both government and legislature were placed by the legislation increasing the representation of the people.

The elections took place in July and August of 1854, for in those times there was no system of simultaneous polling on one day, but elections were held on such days and as long as the necessities of party demanded.[15] The result was, on the whole, adverse to the government. While it still retained a majority in French Canada, its opponents returned in greater strength, and Morin himself was defeated in Terrebonne, though happily for the interests of his party he was elected by acclamation at the same time in Chicoutimi. In Upper Canada the ministry did not obtain half the vote of the sixty-five representatives now elected to the legislature by that province. This vote was distributed as follows: Ministerial, 30; Conservatives, 22; Clear Grits, 7; and Independents, 6. Malcolm Cameron was beaten in Lambton, but Hincks was elected by two constituencies. One auspicious result of this election was the disappearance of Papineau from public life. He retired to his pretty chateau on the banks of the Ottawa, and the world soon forgot the man who had once been so prominent a figure in Canadian politics. His graces of manner and conversation continued for years to charm his friends in that placid evening of his life so very different from those stormy days when his eloquence was a menace to British institutions and British connection. Before his death, he saw Lower Canada elevated to an independent and influential position in the confederation of British North America which it could never have reached as that Nation Canadienne which he had once vainly hoped to see established in the valley of the St. Lawrence.

The Rouges, of whom Papineau had been leader, came back in good form and numbered nineteen members. Antoine A. Dorion, Holton, and other able men in the ranks of this once republican party, had become wise and adopted opinions which no longer offended the national and religious susceptibilities of their race, although they continued to show for years their radical tendencies which prevented them from ever obtaining a firm hold of public opinion in a practically Conservative province, and becoming dominant in the public councils for any length of time.

The fifth parliament of the province of Canada was opened by Lord Elgin on February 5th, 1854, and the ministry was defeated immediately on the vote for the speakership, to which Mr. Sicotte—a dignified cultured man, at a later time a judge—was elected. On this occasion Hincks resorted to a piece of strategy which enabled him to punish John Sandfield Macdonald for the insult he had levelled at the governor-general and his advisers at the close of the previous parliament. The government's candidate was Georges Etienne Cartier, who was first elected in 1849 and who had already become conspicuous in the politics of his province. Sicotte was the choice of the Opposition in Lower Canada, and while there was no belief among the politicians that he could be elected, there was an understanding among the Conservatives and Clear Grits that an effort should be made in his behalf, and in case of its failure, then the whole strength of the opponents of the ministry should be so directed as to ensure the election of Mr. Macdonald, who was sure to get a good Reform vote from the Upper Canadian representatives. These names were duly proposed in order, and Cartier was defeated by a large majority. When the clerk at the table had called for a vote for Sicotte, the number who stood up in his favour was quite insignificant, but before the Nays were taken, Hincks arose quickly and asked that his name be recorded with the Yeas. All the ministerialists followed the prime minister and voted for Sicotte, who was consequently chosen speaker by a majority of thirty-five. But all that Hincks gained by such clever tactics was the humiliation for the moment of an irascible Scotch Canadian politician. The vote itself had no political significance whatever, and the government was forced to resign on September 8th. The vote in favour of Cartier had shown that the ministry was in a minority of twelve in Upper Canada, and if Hincks had any doubt of his political weakness it was at once dispelled on September 7th when the House refused to grant to the government a short delay of twenty-four hours for the purpose of considering a question of privilege which had been raised by the Opposition. On this occasion, Dr. Rolph, who had been quite restless in the government for some tune, voted against his colleagues and gave conclusive evidence that Hincks was deserted by the majority of the Reform party in his own province, and could no longer bring that support to the French Canadian ministerialists which would enable them to administer public affairs.

The resignation of the Hincks-Morin ministry begins a new epoch in the political annals of Canada. From that time dates the disruption of the old Liberal party which had governed the country so successfully since 1848, and the formation of a powerful combination which was made up of the moderate elements of that party and of the Conservatives, which afterwards became known as the Liberal-Conservative party. This new party practically controlled public affairs for over three decades until the death of Sir John A. Macdonald, to whose inspiration it largely owed its birth. With that remarkable capacity for adapting himself to political conditions, which was one of the secrets of his strength as a party leader, he saw in 1854 that the time had come for forming an alliance with those moderate Liberals in the two provinces who, it was quite clear, had no possible affinity with the Clear Grits, who were not only small in numbers, but especially obnoxious to the French Canadians, as a people on account of the intemperate attacks made by Mr. Brown in the Toronto Globe on their revered institutions.

The representatives who supported the late ministry were still in larger numbers than any other party or faction in the House, and it was obvious that no government could exist without their support. Sir Allan MacNab, who was the oldest parliamentarian, and the leader of the Conservatives—a small but compact party—was then invited by the governor-general to assist him by his advice, during a crisis when it was evident to the veriest political tyro that the state of parties in the assembly rendered it very difficult to form a stable government unless a man could be found ready to lay aside all old feelings of personal and political rivalry and prejudice and unite all factions on a common platform for the public advantage. All the political conditions, happily, were favourable for a combination on a basis of conciliation and compromise. The old Liberals in French Canada under the influence of LaFontaine and Morin had been steadily inclining to Conservatism with the secure establishment of responsible government and the growth of the conviction that the integrity of the cherished institutions of their ancient province could be best assured by moving slowly (festina lente), and not by constant efforts to make radical changes in the body politic. The Liberals, of whom Hincks was leader, were also very distrustful of Brown, and clearly saw that he could have no strength whatever in a province where French Canada must have a guarantee that its language, religion, and civil law, were safe in the hands of any government that might at any time be formed. The wisest men among the Conservatives also felt that the time had arrived for adopting a new policy since the old questions which had once evoked their opposition had been at last settled by the voice of the people, and could no longer constitutionally or wisely be made matters of continued agitation in or out of parliament. "The question that arose in the minds of the old Liberals," as it was said many years later by Thomas White, an able journalist and politician,[16]

"was this: shall we hand over the government of this country to the men who, calling themselves Liberals, have broken up the Liberal party by the declaration of extravagant views, by the enunciation of principles far more radical and reckless than any we are prepared to accept, and by a restless ambition which we cannot approve? Or shall we not rather unite with the Conservatives who have gone to the country declaring, in reference to the great questions which then agitated it, that if the decision at the polls was against them, they would no longer offer resistance to their settlement, but would, on the contrary, assist in such solution of them as would forever remove them from the sphere of public or political agitation."

With both Liberals and Conservatives holding such views, it was easy enough for John A. Macdonald to convince even Sir Allan MacNab that the time had come for forgetting the past as much as possible, and constituting a strong government from the moderate elements of the old parties which had served their turn and now required to be remodelled on a wider basis of common interests. Sir Allan MacNab recognized the necessity of bringing his own views into harmony with those of the younger men of his party who were determined not to allow such an opportunity for forming a powerful ministry to pass by. The political situation, indeed, was one calculated to appeal to both the vanity and self-interest of the veteran statesman, and he accordingly assumed the responsibility of forming an administration. He communicated immediately with Morin and his colleagues in Lower Canada, and when he received a favourable reply from them, his next step was to make arrangements, if possible, with the Liberals of Upper Canada. Hincks was only too happy to have an opportunity of resenting the opposition he had met with from Brown and the extreme Reformers of the western province, and opened negotiations with his old supporters on the conditions that the new ministry would take immediate steps for the secularization of the clergy reserves, and the settlement of the seigniorial tenure, and that two members of the administration would be taken from his own followers. The negotiations were successfully closed on this basis of agreement, and on September 11th the following ministers were duly sworn into office:

Upper Canada.—Hon. Sir Allan MacNab, president of the executive council and minister of agriculture; Hon. John A. Macdonald, attorney-general of Upper Canada; Hon. W. Cayley, inspector-general; Hon. R. Spence, postmaster-general; Hon. John Ross, president of the legislative council.

Lower Canada.—Hon. A.N. Morin, commissioner of crown lands; Hon. L.P. Drummond, attorney-general for Lower Canada; Hon. P.J.O. Chauveau, provincial secretary; Hon. E.P. Tache, receiver-general; Hon. J. Chabot, commissioner of public works.

The new cabinet contained four Conservatives, and six members of the old ministry. Henry Smith, a Conservative, became solicitor-general for Upper Canada, and Dunbar Ross continued in the same office for Lower Canada, but neither of them had seats in the cabinet. The Liberal-Conservative party, organized under such circumstances was attacked with great bitterness by the leaders of the discordant factions, who were greatly disappointed at the success of the combination formed through the skilful management of Messrs. J.A. Macdonald, Hineks and Morin.

The coalition was described as "an unholy alliance" of men who had entirely abandoned their principles. But an impartial historian must record the opinion that the coalition was perfectly justified by existing political conditions, that had it not taken place, a stable government would in all probability have been for some time impossible, and that the time had come for the reconstruction of parties with a broad generous policy which would ignore issues at last dead, and be more in harmony with modern requirements. It might with some reason be called a coalition when the reconstruction of parties was going on, but it was really a successful movement for the annihilation of old parties and issues, and for the formation on their ruins of a new party which could gather to itself the best materials available for the effective conduct of public affairs on the patriotic platform of the union of the two races, of equal rights to all classes and creeds, and of the avoidance of purely sectional questions calculated to disturb the union of 1841.

The new government at once obtained the support of a large majority of the representatives from each section of the province, and was sustained by the public opinion of the country at large. During the session of 1854 measures were passed for the secularization of the reserves, the removal of the seigniorial tenure, and for the ratification of the reciprocity treaty with the United States. As I have only been able so far in this historical narrative to refer in a very cursory manner to these very important questions, I propose now to give in the following chapter a succinct review of their history from the time they first came into prominence down to their settlement at the close of Lord Elgin's administration in Canada.



CHAPTER VII



THE HISTORY OF THE CLERGY RESERVES, (1791-1854)

For a long period in the history of Canada the development of several provinces was more or less seriously retarded, and the politics of the country constantly complicated by the existence of troublesome questions arising out of the lavish grants of public lands by the French and English governments. The territorial domain of French Canada was distributed by the king of France, under the inspiration of Richelieu, with great generosity, on a system of a modified feudal tenure, which, it was hoped, would strengthen the connection between the Crown and the dependency by the creation of a colonial aristocracy, and at the same time stimulate the colonization and settlement of the valley of the St. Lawrence; but, as we shall see in the course of the following chapter, despite the wise intentions of its promoters, the seigniorial tenure gradually became, after the conquest, more or less burdensome to the habitants, and an impediment rather than an incentive to the agricultural development and peopling of the province. Even little Prince Edward Island was troubled with a land question as early as 1767, when it was still known by the name St. John, given it in the days of French rule. Sixty-seven townships, containing in the aggregate 1,360,600 English acres, were conveyed in one day by ballot, with a few reservations to the Crown, to a number of military men, officials and others, who had real or supposed claims on the British government. In this wholesale fashion the island was burdened with a land monopoly which was not wholly removed until after the union with the Canadian Dominion in 1873. Though some disputes arose in Nova Scotia and New Brunswick between the old and new settlers with respect to the ownership of lands after the coming of the Loyalists, who received, as elsewhere, liberal grants of land, they were soon settled, and consequently these maritime provinces were not for any length of time embarrassed by the existence of such questions as became important issues in the politics of Canada. Extravagant grants were also given to the United Empire Loyalists who settled on the banks of the St. Lawrence and Niagara rivers in Upper Canada, as some compensation for the great sacrifices they had made for the Crown during the American revolution. Large tracts of this property were sold either by the Loyalists or their heirs, and passed into the hands of speculators at very insignificant prices. Lord Durham in his report cites authority to show that not "one-tenth of the lands granted to United Empire Loyalists had been occupied by the persons to whom they were granted, and in a great proportion of cases not occupied at all." The companies which were also in the course of time organized in Great Britain for the purchase and sale of lands in Canada, also received extraordinary favours from the government. Although the Canada Company, which is still in existence, was an important agency in the settlement of the province of Upper Canada, its possession of immense tracts—some of them, the Huron Block, for instance, locked up for years—was for a time a great public grievance.

But all these land questions sank into utter insignificance compared with the dispute which arose out of the thirty-sixth clause of the Constitutional Act of 1791, which provided that there should be reserved for the maintenance and support of a "Protestant clergy," in the provinces of Upper and Lower Canada, "a quantity of land equal in value to a seventh part of grants that had been made in the past, or might be made in the future." Subsequent clauses of the same act made provision for the erection and endowment of one or more rectories in every township or parish, "according to the establishment of the Church of England," and at the same time gave power to the legislature of the two provinces "to vary or repeal" these enactments of the law with the important reservation that all bills of such a character could not receive the royal assent until thirty days after they had been laid before both Houses of the imperial parliament. Whenever it was practicable, the lands were reserved under the act among those already granted to settlers with the intention of creating parishes as soon as possible in every settled township throughout the province. However, it was not always possible to carry out this plan, in consequence of whole townships having been granted en bloc to the Loyalists in certain districts, especially in those of the Bay of Quinte, Kingston and Niagara, and it was therefore necessary to carry out the intention of the law in adjoining townships where no lands of any extent had been granted to settlers.

The Church of England, at a very early period, claimed, as the only "Protestant clergy" recognized by English law, the exclusive use of the lands in question, and Bishop Mountain, who became in 1793 Anglican bishop of Quebec, with a jurisdiction extending over all Canada, took the first steps to sustain this assertion of exclusive right. Leases were given to applicants by a clerical corporation established by the Anglican Church for the express purpose of administering the reserves. For some years the Anglican claim passed without special notice, and it is not until 1817 that we see the germ of the dispute which afterwards so seriously agitated Upper Canada. It was proposed in the assembly to sell half the lands and devote the proceeds to secular purposes, but the sudden prorogation of the legislature by Lieutenant-Governor Gore, prevented any definite action on the resolutions, although the debate that arose on the subject had the effect of showing the existence of a marked public grievance. The feeling at this time in the country was shown in answers given to circulars sent out by Robert Gourlay, an energetic Scottish busy-body, to a number of townships, asking an expression of opinion as to the causes which retarded improvement and the best means of developing the resources of the province. The answer from Sandwich emphatically set forth that the reasons of the existing depression were the reserves of land for the Crown and clergy, "which must for long keep the country a wilderness, a harbour for wolves, and a hindrance to compact and good neighbourhood; defects in the system of colonization; too great a quantity of land in the hands of individuals who do not reside in the province, and are not assessed for their property." The select committee of the House of Commons on the civil government of Canada reported in 1828 that "these reserved lands, as they are at present distributed over the country, retard more than any other circumstance the improvement of the colony, lying as they do in detached portions of each township and intervening between the occupations of actual settlers, who have no means of cutting roads through the woods and morasses which thus separate them from their neighbours." It appears, too, that the quantity of land actually reserved was in excess of that which appears to have been contemplated by the Constitutional Act. "A quantity equal to one-seventh of all grants," wrote Lord Durham in his report of 1839, "would be one-eighth of each township, or of all the public land. Instead of this proportion, the practice has been ever since the act passed, and in the clearest violation of its provisions, to set apart for the clergy in Upper Canada, a seventh of all the land, which is a quantity equal to a sixth of the land granted.... In Lower Canada the same violation of the law has taken place, with this difference—that upon every sale of Crown and clergy reserves, a fresh reserve for the clergy has been made, equal to a fifth of such reserves." In that way the public in both provinces was systematically robbed of a large quantity of land, which, Lord Durham estimated, was worth about L280,000 at the time he wrote. He acknowledges, however, that the clergy had no part in "this great misappropriation of the public property," but that it had arisen "entirely from heedless misconception, or some other error of the civil government of the province." All this, however, goes to show the maladministration of the public lands, and is one of the many reasons the people of the Canadas had for considering these reserves a public grievance.

When political parties were organized in Upper Canada some years after the war of 1812-14, which had for a while united all classes and creeds for the common defence, we see on one side a Tory compact for the maintenance of the old condition of things, the control of patronage, and the protection of the interests of the Church of England; on the other, a combination of Reformers, chiefly composed of Methodists, Presbyterians, and Baptists, who clamoured for reforms in government and above all for relief from the dominance of the Anglican Church, which, with respect to the clergy reserves and other matters, was seeking a quasi recognition as a state church. As the Puritans of New England at the commencement of the American Revolution inveighed against any attempt to establish an Anglican episcopate in the country as an insidious attack by the monarchy on their civil and religious liberty—most unjustly, as any impartial historian must now admit[17]—so in Upper Canada the dissenters made it one of their strongest grievances that favouritism was shown to the Anglican Church in the distribution of the public lands and the public patronage, to the detriment of all other religious bodies in the province. The bitterness that was evoked on this question had much to do with bringing about the rebellion of 1837. If the whole question could have been removed from the arena of political discussion, the Reformers would have been deprived of one of their most potent agencies to create a feeling against the "family compact" and the government at Toronto. But Bishop Strachan, who was a member of both the executive and legislative councils—in other words, the most influential member of the "family compact"—could not agree to any compromise which would conciliate the aggrieved dissenters and at the same time preserve a large part of the claim made by the Church of England. Such a compromise in the opinion of this sturdy, obstinate ecclesiastic, would be nothing else than a sop to his Satanic majesty. It was always with him a battle a l'outrance, and as we shall soon see, in the end he suffered the bitterness of defeat.

In these later days when we can review the whole question without any of the prejudice and passion which embittered the controversy while it was a burning issue, we can see that the Church of England had strong historical and legal arguments to justify its claim to the exclusive use of the clergy reserves. When the Constitutional Act of 1791 was passed, the only Protestant clergy recognized in British statutes were those of the Church of England, and, as we shall see later, those of the established Church of Scotland. The dissenting denominations had no more a legal status in the constitutional system of England than the Roman Catholics, and indeed it was very much the same thing in some respects in the provinces of Canada. So late as 1824 the legislative council, largely composed of Anglicans, rejected a bill allowing Methodist ministers to solemnize marriages, and it was not until 1831 that recognized ministers of all denominations were placed on an equality with the Anglican clergy in such matters. The employment of the words "Protestant Clergy" in the act, it was urged with force, was simply to distinguish the Church of England clergy from those of the Church of Rome, who, otherwise, would be legally entitled to participate in the grant.

The loyalists, who founded the province of Upper Canada, established formally by the Constitutional Act of 1791, were largely composed of adherents of the Church of England, and it was one of the dearest objects of Lieutenant-Governor Simcoe to place that body on a stable basis and give it all the influence possible in the state. A considerable number had also settled in Lower Canada, and received, as in other parts of British North America, the sympathy and aid of the parent state. It was the object of the British government to make the constitution of the Canadas "an image and transcript" as far as possible of the British system of government. In no better way could this be done, in the opinion of the framers of the Constitutional Act, than by creating a titled legislative council;[18] and though this effort came to naught, it is noteworthy as showing the tendency at that time of imperial legislation. If such a council could be established, then it was all important that there should be a religious body, supported by the state, to surround the political institutions of the country with the safeguards which a conservative and aristocratic church like that of England would give. The erection and endowment of rectories "according to the establishment of the Church of England"—words of the act to be construed in connection with the previous clauses—was obviously a part of the original scheme of 1791 to anglicize Upper Canada and make it as far as possible a reflex of Anglican England.

It does not appear that at any time there was any such feeling of dissatisfaction with respect to the reserves in French Canada as existed throughout Upper Canada, The Protestant clergy in the former province were relatively few in number, and the Roman Catholic Church, which dominated the whole country, was quite content with its own large endowments received from the bounty of the king or private individuals during the days of French occupation, and did not care to meddle in a question which in no sense affected it. On the other hand, in Upper Canada, the arguments used by the Anglican clergy in support of their claims to the exclusive administration of the reserves were constantly answered not only in the legislative bodies, but in the Liberal papers, and by appeals to the imperial government. It was contended that the phrase "Protestant clergy" used in the Constitutional Act, was simply intended to distinguish all Protestant denominations from the Roman Catholic Church, and that, had there been any intention to give exclusive rights to the Anglican Church, it would have been expressly so stated in the section reserving the lands, just as had been done in the sections specially providing for the erection and endowment of Anglican rectories.

The first successful blow against the claims of the English Church in Canada was struck by that branch of the Presbyterian Church known in law as the Established Church of Scotland. It obtained an opinion from the British law officers in 1819, entirely favourable to its own participation in the reserves on the ground that it had been fully recognized as a state church, not only in the act uniting the two kingdoms of England and Scotland, but in several British statutes passed later than the Constitutional Act whose doubtful phraseology had originated the whole controversy. While the law officers admitted that the provisions of this act might be "extended also to the Church of Scotland, if there are any such settled in Canada (as appears to have been admitted in the debate upon the passing of the act)," yet they expressed the opinion that the clauses in question did not apply to dissenting ministers, since they thought that "the term 'Protestant clergy' could apply only to Protestant clergy recognized and established by law." We shall see a little farther on the truth of the old adage that "lawyers will differ" and that in 1840, twenty-one years later than the expression of the opinion just cited, eminent British jurists appeared to be more favourable to the claims of denominations other than the Church of Scotland.

Until 1836—the year preceding the rebellion—the excitement with respect to the reserves had been intensified by the action of Sir John Colborne, lieutenant-governor of Upper Canada, who, on the eve of his departure for England, was induced by Bishop Strachan to sign patents creating and endowing forty-four rectories[19] in Upper Canada, representing more than 17,000 acres of land in the aggregate or about 486 for each of them. One can say advisedly that this action was most indiscreet at a time when a wise administrator would have attempted to allay rather than stimulate public irritation on so serious a question. Until this time, says Lord Durham, the Anglican clergy had no exclusive privileges, save such as might spring from their efficient discharge of their sacred duties, or from the energy, ability or influence of members of their body—notably Bishop Strachan, who practically controlled the government in religious and even secular matters. But, continued Lord Durham, the last public act of Sir John Colborne made it quite understood that every rector possessed "all the spiritual and other privileges enjoyed by an English rector," and that though he might "have no right to levy tithes" (for even this had been made a question), he was "in all other respects precisely in the same position as a clergyman of the established church in England." "This is regarded," added Lord Durham, "by all other teachers of religion in this country as having at once degraded them to a position of legal inferiority to the clergy of the Church of England; and it has been most warmly resented. In the opinion of many persons, this was the chief predisposing cause of the recent insurrection, and it is an abiding and unabated cause for discontent."

As soon as Sir John Colborne's action was known throughout the province, public indignation among the opponents of the clergy reserves and the Church of England took the forms of public meetings to denounce the issue of the patents, and of memorials to the imperial government calling into question their legality and praying for their immediate annulment. An opinion was obtained from the law officers of the Crown that the action taken by Sir John Colborne was "not valid and lawful," but it was given on a mere ex parte statement of the case prepared by the opponents of the rectories; and the same eminent lawyers subsequently expressed themselves favourably as to the legality of the patents when they were asked to reconsider the whole question, which was set forth in a very elaborate report prepared under the direction of Bishop Strachan. It is convenient to mention here that this phase of the clergy reserve question again came before able English counsel at the Equity Bar, when Hincks visited London in 1852. After they had given an opinion unfavourable to the Colborne patents on the case as submitted to them by the Canadian prime minister, it was deemed expedient to submit the whole legal question to the Court of Chancery in Upper Canada, which decided unanimously, after a full hearing of the case, that the patents were valid. But this decision was not given until 1856, when the whole matter of the reserves had been finally adjusted, and the validity of the creation of the rectories was no longer a burning question in Upper Canada.

When Poulett Thomson came to Canada in the autumn of 1839 as governor-general, he recognized the necessity of bringing about an immediate settlement of this very vexatious question, and of preventing its being made a matter of agitation after the union of the two provinces. The imperial authorities had already disallowed an act passed by the legislature of Upper Canada of 1838 to reinvest the clergy reserves in the Crown, and it became necessary for Lord Sydenham—to give the governor-general's later title—to propose a settlement in the shape of a compromise between the various Protestant bodies interested in the reserves. Lord Sydenham was opposed to the application of these lands to general education as proposed in several bills which had passed the assembly, but had been rejected by the legislative council owing to the dominant influence of Bishop Strachan. "To such a measure," says Lord Sydenham's biographer,[20] "he was opposed; first because it would have taken away the only fund exclusively devoted to purposes of religion, and secondly, because, even if carried in the provincial legislature, it would evidently not have obtained the sanction of the imperial parliament. He therefore entered into personal communication with the leading individuals among the principal religious communities, and after many interviews, succeeded in obtaining their support to a measure for the distribution of the reserves among the religious communities recognized by law, in proportion to their respective numbers."

Lord Sydenham's efforts to obtain the consent "of leading individuals among the principal religious communities" did not succeed in preventing a strong opposition to the measure after it had passed through the legislature. Dr. Ryerson, a power among the Methodists, denounced it, after he had at the outset shown an inclination to support it, and the Bishop of Toronto was also among its most determined opponents. Lord Sydenham's well-meaning attempt to settle the question was thwarted at the very outset by the reference of the bill to English judges, who reported adversely on the ground that the power "to vary or repeal" given in the Constitutional Act of 1791 was only prospective, and did not authorize the provincial legislature to divert the proceeds of the lands already sold from the purpose originally contemplated in the imperial statute. The judges also expressed the opinion on this occasion that the words "Protestant clergy" were large enough to include and did include "other clergy than those of the Church of Scotland." In their opinion these words appeared, "both in their natural force and meaning, and still more from the context of the clauses in which they are found, to be there used to designate and intend a clergy opposed in doctrine and discipline to the clergy of the Church of Rome, and rather to aim at the encouragement of the Protestant religion in opposition to the Romish Church, than to point exclusively to the clergy of the Church of England." But as they did not find on the statute book the acknowledgment by the legislature of any other clergy answering the description of the law, they could not specify any other except the Church of Scotland as falling within the imperial statute.

Under these circumstances the imperial government at once passed through parliament a bill (3 and 4 Vict., c. 78) which re-enacted the Canadian measure with the modifications rendered necessary by the judicial opinion just cited. This act put an end to future reservations, and at the same time recognized the claims of all the Protestant bodies to a share in the funds derived from the sales of the lands. It provided for the division of the reserves into two portions—those sold before the passing of the act and those sold at a later time. Of the previous sales, the Church of England was to receive two-thirds and the Church of Scotland one-third. Of future sales, the Church of England would receive one-third and the Church of Scotland one-sixth, while the residue could be applied by the governor-in-council "for purposes of public worship and religious instruction in Canada," in other words, that it should be divided among those other religious denominations that might make application at any time for a share in these particular funds.

This act, however, did not prove to be a settlement of this disturbing question. If Bishop Strachan had been content with the compromise made in this act, and had endeavoured to carry out its provisions as soon as it was passed, the Anglican Church would have obtained positive advantages which it failed to receive when the question was again brought into the arena of angry discussion. In 1844 when Henry Sherwood was solicitor-general in the Draper-Viger Conservative government he proposed an address to the Crown for the passing of a new imperial act, authorizing the division of the land itself instead of the income arising from its sales. His object was to place the lands, allotted to the Church of England, under the control of the church societies, which could lease them, or hold them for any length of time at such prices as they might deem expedient. In the course of the debate on this proposition, which failed to receive the assent of the House, Baldwin, Price, and other prominent men expressed regret that any attempt should be made to disturb the settlement made by the imperial statute of 1840, which, in their opinion, should be regarded as final.

A strong feeling now developed in Upper Canada in favour of a repeal of the imperial act, and the secularization of the reserves. The Presbyterians—apart from the Church of Scotland—were now influenced by the Scottish Free Church movement of 1843 and opposed to public provision for the support of religious denominations. The spirit which animated them spread to other bodies, and was stimulated by the uncompromising attitude still assumed by the Anglican bishop, who was anxious, as Sherwood's effort proved, to obtain advantages for his church beyond those given it by the act of 1840. When the LaFontaine-Baldwin ministry was formed, the movement for the secularization of the reserves among the Upper Canadian Liberals, or Reformers as many preferred to call their party, became so pronounced as to demand the serious consideration of the government; but there was no inclination shown by the French Canadians in the cabinet to disturb the settlement of 1840, and the serious phases of the Rebellion Losses Bill kept the whole question for some time in the background. After the appearance of the Clear Grits in Upper Canadian politics, with the secularization of the reserves as the principal plank in their platform, the LaFontaine-Baldwin cabinet felt the necessity of making a concession to the strong feeling which prevailed among Upper Canadian Reformers. As they were divided in opinion on the question and could not make it a part of the ministerial policy, Price, commissioner of Crown lands, was induced in the session of 1850 to introduce on his sole responsibility an address to the Crown, praying for the repeal of the imperial act of 1840, and the passage of another which would authorize the Canadian legislature to dispose of the reserves as it should deem most expedient, but with the distinct understanding that, while no particular sect should be considered as having a vested right in the property, the emoluments derived by existing incumbents should be guaranteed during their lives. Mr. Price—the same gentleman who had objected some years previously to the reopening of the question—showed in the course of his speech the importance which the reserves had now attained. The number of acres reserved to this time was 2,395,687, and of sales, under two statutes, 1,072,453. These sales had realized L720,756, of which L373,899 4s. 4d. had been paid, and L346,856 15s. 8d. remained still due. Counting the interest on the sum paid, a million of pounds represented the value of the lands already sold, and when they were all disposed of there would be realized more than two millions of pounds. Price also pointed out the fact that only a small number of persons had derived advantages from these reserves. Out of the total population of 723,000 souls in Upper Canada, the Church of England claimed 171,000 and the Church of Scotland 68,000, or a total of 239,000 persons who received the lion's share, and left comparatively little to the remaining population of 484,000 souls. Among the latter the Roman Catholics counted 123,707 communicants and received only L700 a year; the Wesleyans, with 90,363 adherents, received even a still more wretched pittance. Furthermore 269,000 persons were entirely excluded from any share whatever in the reserves. In the debate on the resolutions for the address LaFontaine did not consider the imperial act a finality, and was in favour of having the reserves brought under the control of the Canadian legislature, but he expressed the opinion most emphatically that all private rights and endowments conferred under the authority of imperial legislation should be held inviolate, and so far as possible, carried into effect. Baldwin's observations were remarkable for their vagueness. He did not object to endowment for religious purposes, although he was opposed to any union between church and state. While he did not consider the act of 1840 as a final settlement, inasmuch as it did not express the opinion of the Canadian people, he was not then prepared to commit himself as to the mode in which the property should he disposed of. Hincks affirmed that there was no desire on the part of members of the government to evade their responsibilities on the question, but they were not ready to adopt the absurd and unconstitutional course that was pressed on them by the Clear Grits, of attempting to repeal an imperial act by a Canadian statute.

Malcolm Cameron and other radical Reformers advocated the complete secularization of the reserves, while Cayley, Macdonald, and other Conservatives, urged that the provisions of the imperial act of 1840 should be carried out to the fullest extent, and that the funds, then or at a future time at the disposal of the government "for the purposes of public worship and religious instruction" under the act, should be apportioned among the various denominations that had not previously had a share in the reserves. When it came to a division, it was clear that there was no unanimity on the question among the ministers and other supporters. Indeed, the summary given above of the remarks made by LaFontaine, Baldwin, and Hincks, affords conclusive evidence of the differences of opinion that existed between them and of their reluctance to express themselves definitely on the subject. The majority of the French members, Messrs. LaFontaine, Cauchon, Chabot, Chauveau, LaTerriere and others, voted against the resolution which affirmed that "no religious denomination can be held to have such vested interest in the revenue derived from the proceeds of the said clergy reserves as should prevent further legislation with reference to the disposal of them, but this House is nevertheless of opinion that the claims of existing incumbents should be treated in the most liberal manner." Baldwin and other Reformers supported this clause, which passed by a majority of two. The address was finally adopted on a division of forty-six Yeas and twenty-three Nays—"the minority containing the names of a few Reformers who would not consent to pledge themselves to grant, for the lives of the existing incumbents, the stipends on which they had accepted their charges—some perhaps having come from other countries to fill them and having possibly thrown up other preferments."[21] The address was duly forwarded to England by Lord Elgin, with a despatch in which he explained at some length the position of the whole question. In accordance with the principle which guided him throughout his administration of Canadian affairs—to give full scope to the right of the province to manage its own local concerns—he advised Lord Grey to repeal the imperial act of 1840 if he wished "to preserve the colony." Lord Grey admitted that the question was one exclusively affecting the people of Canada and should be decided by the provincial legislature. It was the intention of the government, he informed Lord Elgin, to introduce a bill into parliament for this purpose; but action had to be deferred until another year when, as it happened unfortunately for the province, Lord John Russell's ministry was forced to resign, and was succeeded by a Conservative administration led by the Earl of Derby.

The Canadian government soon ascertained from Sir John Pakington, the new colonial secretary, that the new advisers of Her Majesty were not "inclined to give their consent and support to any arrangement the result of which would too probably be the diversion to other purposes of the only public fund ... which now exists for the support of divine worship and religious instruction in the colony." It was also intimated by the secretary of state that the new government was quite ready to entertain a proposal for reconsidering the mode of distributing the proceeds of the sales of the reserves, while not ready to agree to any proposal that might "divert forever from its sacred object the fund arising from that portion of the public lands of Canada which, almost from the period of the British conquest of that province, has been set apart for the religious instruction of the people." Hincks, who was at that time in England, at once wrote to Sir John Pakington, in very emphatic terms, that he viewed "with grave apprehension the prospect of collision between Her Majesty's government and the parliament of Canada, on a question regarding which such strong feelings prevailed among the great mass of the population." The people of Canada were convinced that they were "better judges than any parties in England of what measures would best conduce to the peace and welfare of the province." As respects the proposal "for reconsidering the mode of distributing the income of the clergy reserves," Hincks had no hesitation in saying that "it would be received as one for the violation of the most sacred constitutional rights of the people."

As soon as the Canadian legislature met in 1852, Hincks carried an address to the Crown, in which it was urged that the question of the reserves was "one so exclusively affecting the people of Canada that its decision ought not to be withdrawn from the provincial legislature, to which it properly belongs to regulate all matters concerning the domestic interests of the province." The hope was expressed that Her Majesty's government would lose no time in giving effect to the promise made by the previous administration and introduce the legislation necessary "to satisfy the wishes of the Canadian people." In the debate on this address, Moria, the leader of the French section of the cabinet, clearly expressed himself in favour of the secularization of the reserves in accordance with the views entertained by his Upper Canadian colleagues. It was consequently clear that the successors of the LaFontaine-Baldwin ministry were fully pledged to a vigorous policy for the disposal of this vexatious dispute.

A few months after Lord Elgin had forwarded this address to the Crown, the Earl of Derby's administration was defeated in the House of Commons, and the Aberdeen government was formed towards the close of 1852, with the Duke of Newcastle as secretary of state for the colonies. One of Sir John Pakington's last official acts was to prepare a despatch unfavourable to the prayer of the assembly's last address, but it was never sent to Canada, though brought down to parliament. At the same time the Canadian people heard of this despatch they were gratified by the announcement that the new ministers had decided to reverse the policy of their predecessors and to meet the wishes of the Canadian legislature. Accordingly, in the session of 1853, a measure was passed by the imperial parliament to give full power to the provincial legislature to vary or repeal all or any part of the act of 1840, and to make all necessary provisions respecting the clergy reserves or the proceeds derived from the same, on the express condition that there should be no interference with the annual stipends or allowances of existing incumbents as long as they lived. The Hincks-Morin ministry was then urged to bring in at once a measure disposing finally of the question, in accordance with the latest imperial act; but, as we have read in a previous chapter, it came to the opinion after anxious deliberation that the existing parliament was not competent to deal with so important a question. It also held that it was a duty to obtain an immediate expression of opinion from the people, and the election of a House in which the country would be fully represented in accordance with the legislation increasing the number of representatives in the assembly.

The various political influences arrayed against Hincks in Upper Canada led to his defeat, and the formation of the MacNab-Morin Liberal-Conservative government, which at once took steps to settle the question forever. John A. Macdonald commenced this new epoch in his political career by taking charge of the bill for the secularization of the reserves. It provided for the payment of all moneys arising from the sales of the reserves into the hands of the receiver-general, who would apportion them amongst the several municipalities of the province according to population. All annual stipends or allowances, charged upon the reserves before the passage of the imperial act of 1853, were continued during the lives of existing incumbents, though the latter could commute their stipends or allowances for their value in money, and in this way create a small permanent endowment for the advantage of the church to which they belonged.

After nearly forty years of continuous agitation, during which the province of Upper Canada had been convulsed from the Ottawa to Lake Huron, and political parties had been seriously embarrassed, the question was at last removed from the sphere of party and religious controversy. The very politicians who had contended for the rights of the Anglican clergy were now forced by public opinion and their political interests to take the final steps for its settlement. Bishop Strachan's fight during the best years of his life had ended in thorough discomfiture. As the historian recalls the story of that fight, he cannot fail to come to the conclusion that the settlement of 1854 relieved the Anglican Church itself of a controversy which, as long as it existed, created a feeling of deep hostility that seriously affected its usefulness and progress. Even Lord Elgin was compelled to write in 1851 "that the tone adopted by the Church of England here has almost always had the effect of driving from her even those who would be most disposed to co-operate with her if she would allow them." At last freed from the political and the religious bitterness which was so long evoked by the absence of a conciliatory policy on the part of her leaders, this great church is able peacefully to teach the noble lessons of her faith and win that respect among all classes which was not possible under the conditions that brought her into direct conflict with the great mass of the Canadian people.



CHAPTER VIII



SEIGNIORIAL TENURE

The government of Canada in the days of the French regime 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 regime—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 francais, 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-Salieres. 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 Cotes—for example, Cote de Neiges, Cote St. Louis, Cote 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-Salieres 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 (corvee) 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, Rene 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 melees) 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, cure, 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 regime 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 banalite 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. Lelievre, 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 arriere 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 banalite, and other rights declared legal by the court. The cens et ventes had alone to be met as an established rent (rente constituee) 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, Vercheres, Lotbiniere, Berthier, Rouville, Joliette, Terrebonne, Sillery, Beaupre, Bellechasse, Portneuf, Chambly, Sorel, Longueuil, Boucherville, Chateauguay, and many others which recall the seigniors of the old regime.



CHAPTER IX



CANADA AND THE UNITED STATES

In a long letter which he wrote to Earl Grey in August, 1850, Lord Elgin used these significant words: "To render annexation by violence impossible, or by any other means improbable as may be, is, as I have often ventured to repeat, the polar star of my policy." To understand the full significance of this language it is only necessary to refer to the history of the difficulties with which the governor-general had to contend from the first hour he came to the province and began his efforts to allay the feeling of disaffection then too prevalent throughout the country—especially among the commercial classes—and to give encouragement to that loyal sentiment which had been severely shaken by the indifference or ignorance shown by British statesmen and people with respect to the conditions and interests of the Canadas. He was quite conscious that, if the province was to remain a contented portion of the British empire, it could be best done by giving full play to the principles of self-government among both nationalities who had been so long struggling to obtain the application of the parliamentary system of England in the fullest sense to the operation of their own internal affairs, and by giving to the industrial and commercial classes adequate compensation for the great losses which they had sustained by the sudden abolition of the privileges which England had so long extended to Canadian products—notably, flour, wheat and lumber—in the British market.

Lord Elgin knew perfectly well that, while this discontent existed, the party which favoured annexation would not fail to find sympathy and encouragement in the neighbouring republic. He recalled the fact that both Papineau and Mackenzie, after the outbreak of their abortive rebellion, had many abettors across the border, as the infamous raids into Canada clearly proved. Many people in the United States, no doubt, saw some analogy between the grievances of Canadians and those which had led to the American revolution. "The mass of the American people," said Lord Durham, "had judged of the quarrel from a distance; they had been obliged to form their judgment on the apparent grounds of the controversy; and were thus deceived, as all those are apt to be who judge under such circumstances, and on such grounds. The contest bore some resemblance to that great struggle of their own forefathers, which they regard with the highest pride. Like that, they believed it to be the contest of a colony against the empire, whose misconduct alienated their own country; they considered it to be a contest undertaken by a people professing to seek independence of distant control, and extension of popular privileges." More than that, the striking contrast which was presented between Canada and the United States "in respect to every sign of productive industry, increasing wealth, and progressive civilization" was considered by the people of the latter country to be among the results of the absence of a political system which would give expansion to the energies of the colonists and make them self-reliant in every sense. Lord Durham's picture of the condition of things in 1838-9 was very painful to Canadians, although it was truthful in every particular. "On the British side of the line," he wrote, "with the exception of a few favoured spots, where some approach to American prosperity is apparent, all seems waste and desolate." But it was not only "in the difference between the larger towns on the two sides" that we could see "the best evidence of our own inferiority." That "painful and undeniable truth was most manifest in the country districts through which the line of national separation passes for one thousand miles." Mrs. Jameson in her "Winter Studies and Summer Rambles," written only a year or two before Lord Durham's report, gives an equally unfavourable comparison between the Canadian and United States sides of the western country. As she floated on the Detroit river in a little canoe made of a hollow tree, and saw on one side "a city with its towers, and spires, and animated population," and on the other "a little straggling hamlet with all the symptoms of apathy, indolence, mistrust, hopelessness," she could not help wondering at this "incredible difference between the two shores," and hoping that some of the colonial officials across the Atlantic would be soon sent "to behold and solve the difficulty."

But while Lord Durham was bound to emphasize this unsatisfactory state of things he had not lost his confidence in the loyalty of the mass of the Canadian people, notwithstanding the severe strain to which they had been subject on account of the supineness of the British government to deal vigorously and promptly with grievances of which they had so long complained as seriously affecting their connection with the parent state and the development of their material resources. It was only necessary, he felt, to remove the causes of discontent to bring out to the fullest extent the latent affection which the mass of French and English Canadians had been feeling for British connection ever since the days when the former obtained guarantees for the protection of their dearest institutions and the Loyalists of the American Revolution crossed the frontier for the sake of Crown and empire. "We must not take every rash expression of disappointment," wrote Lord Durham, "as an indication of a settled aversion to the existing constitution; and my own observation convinces me that the predominant feeling of all the British population of the North American colonies is that of devoted attachment to the mother country. I believe that neither the interests nor the feelings of the people are incompatible with a colonial government, wisely and popularly administered." His strong conviction then was that if connection with Great Britain was to be continuous, if every cause of discontent was to be removed, if every excuse for interference "by violence on the part of the United States" was to be taken away, if Canadian annexationists were no longer to look for sympathy and aid among their republican neighbours, the Canadian people must be given the full control of their own internal affairs, while the British government on their part should cease that constant interference which only irritated and offended the colony. "It is not by weakening," he said, "but strengthening the influence of the people on the government; by confining within much narrower bounds than those hitherto allotted to it, and not by extending the interference of the imperial authorities in the details of colonial affairs, that I believe that harmony is to be restored, where dissension has so long prevailed; and a regularity and vigour hitherto unknown, introduced into the administration of these provinces." And he added that if the internal struggle for complete self-government were renewed "the sympathy from without would at some time or other re-assume its former strength."

Lord Elgin appeared on the scene at the very time when there was some reason for a repetition of that very struggle, and a renewal of that very "sympathy from without" which Lord Durham imagined. The political irritation, which had been smouldering among the great mass of Reformers since the days of Lord Metcalfe, was seriously aggravated by the discontent created by commercial ruin and industrial paralysis throughout Canada as a natural result of Great Britain's ruthless fiscal policy. The annexation party once more came to the surface, and contrasts were again made between Canada and the United States seriously to the discredit of the imperial state. "The plea of self-interest," wrote Lord Elgin in 1849, "the most powerful weapon, perhaps, which the friends of British connection have wielded in times past, has not only been wrested from my hands but transferred since 1846 to those of the adversary." He then proceeded to contrast the condition of things on the two sides of the Niagara, only "spanned by a narrow bridge, which it takes a foot passenger about three minutes to cross." The inhabitants on the Canadian side were "for the most part United Empire Loyalists" and differed little in habits or modes of thought and expression from their neighbours. Wheat, their staple product, grown on the Canadian side of the line, "fetched at that time in the market from 9d. to 1s. less than the same article grown on the other." These people had protested against the Montreal annexation movement, but Lord Elgin was nevertheless confident that the large majority firmly believed "that their annexation to the United States would add one-fourth to the value of the produce of their farms." In dealing with the causes of discontent Lord Elgin came to exactly the same conclusion which, as I have just shown, was accepted by Lord Durham after a close study of the political and material conditions of the country. He completed the work of which his eminent predecessor had been able only to formulate the plan. By giving adequate scope to the practice of responsible government, he was able to remove all causes for irritation against the British government, and prevent annexationists from obtaining any sympathy from that body of American people who were always looking for an excuse for a movement—such a violent movement as suggested by Lord Elgin in the paragraph given above—which would force Canada into the states of the union. Having laid this foundation for a firm and popular government, he proceeded to remove the commercial embarrassment by giving a stimulus to Canadian trade by the repeal of the navigation laws, and the adoption of reciprocity with the United States. The results of his efforts were soon seen in the confidence which all nationalities and classes of the Canadian people felt in the working of their system of government, in the strengthening of the ties between the imperial state and the dependency, and in the decided stimulus given to the shipping and trade throughout the provinces of British North America.