Canada Tenures Act

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An Act to provide for the extinction of feudal and seigniorial rights and burthens on lands held à titre de fief and à titre de cens, in the province of Lower Canada; and for the gradual conversion of these tenures into the tenures of free and common soccage; and for other purposes relating to the said province.

Sixth year of George IV, chapter 59
22nd June 1825



WHEREAS in and by an act passed in the third year of His Majesty's reign intituled: An Act to regulate the trade of the provinces of Lower and Upper Canada and for other purposes relating to the said provinces, certain provisions were made for a change of the tenure of lands held at cens et rentes in the censive of His Majesty in the provinces of Lower and Upper Canada; and whereas the said provisions, in so far as they relate to the change of tenure of lands in fief and seigniory, cannot, in the said province of Lower Canada, receive execution where such lands, or parts thereof, have under grants of the seigniories become the property of persons who hold the same à titre de fief, in arrière-fief or à titre de cens; and further provision in this behalf is necessary: Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and commons in this present parliament assembled and by the authority of the same That whenever any person or persons, holding of His Majesty as proprietor or proprietors any fief or seigniory in the said province of Lower Canada and having legally the power of alienating the same, in which fief or seigniory lands have been granted and are held à titre de fief, in arrière fief or à titre de cens, shall by petition to the King, through the governor, lieutenant governor, or person administering the government of the said province, apply for a commutation of and release from the droit de quint, the droit de relief, or other feudal burthens due to His Majesty on such fief or seigniory, and shall surrender into the hands of His Majesty, his heirs or successors, all such parts and parcels of such fief or seigniory as shall remain and be in his possession ungranted; and shall not be held as aforesaid, à titre de fief in arrière fief or à titre de cens, it shall and may be lawful for His Majesty, or for such governor, lieutenant governor, or person administering the government as aforesaid, in pursuance of His Majesty's instructions transmitted through one of his principal secretaries of state, by and with the advice of the executive council of the said province, to commute the droit de quint, the droit de relief, and all others feudal rights and burthens due to His Majesty upon or in respect of such fief or seigniory, for such sum of money or consideration, and upon such terms and conditions, as to His Majesty, or to such governor, lieutenant governor, or person administering the government as aforesaid, in pursuance of such instructions, and by and with such advice as aforesaid, shall appear meet and expedient; and thereupon to release the person or persons so applying, his, her, and their heirs and assigns, and all and every the lands comprized in such fief or seigniory, from the said droit de quint, droit de relief, and all other feudal burthens due or to grow due thereupon to His Majesty, his heirs or successors, of whatsoever nature or kind, for ever; and to cause a fresh grant to be made to the person or persons, so applying, of all such parts and parcels of such fief or seigniory may be re parcels of such her or seigmory as shall as aforesaid remain and be granted in his, her, or their possession ungranted, and which shall not be held à titre de fief, in arrière-fief, as aforesaid, or à titre de cens, to be thenceforward holden in free and common soccage, in like manner as lands are now holden in free and common soccage in that part of Great Britain called England, without its being necessary for the validity of such grant, that any allotment or appropriation of lands for the support and maintenance of a protestant clergy should be therein made; any law or statute to the contrary thereof notwithstanding.

II. Provided always, and be it further enacted, That where such fresh grant as aforesaid shall be made, nothing in this act contained shall extend or be construed to extend, to take away, diminish, alter, or in any manner or way affect the feudal, seigniorial or other rights of the seignior or person in whose favour such grant shall be made, upon and in respect of all and every the lands held of him à titre de cens or à titre de fief or in arrière-fief as aforesaid, making part of him, her or their fief or seigniory, on which a commutation of the droit de quint, or droit de relief, shall have been obtained as aforesaid, but that all and every such feudal, seigniorial, and other rights shall continue and remain in full force upon and in respect of such lands so held à titre de fief, in arrière fief as aforesaid, or à titre de cens, and the proprietors and holders of the same, as if such commutation or grant had not been made, until a commutation, release, and extinguishment thereof shall have been obtained in the manner hereinafter mentioned.

III. And be it further enacted, That in all cases where any seignior or seigniors, or person or persons holding lands à titre de fief in the said province of Lower Canada, shall by reason or means of a commutation with His Majesty, or of a surrender of his, her, or their fief or seigniory, or any part thereof, to His Maiesty, or by reason or means of a commutation with his or their immediate superior lord or seignior, or otherwise howsoever, have obtained or shall or may hereafter obtain, for himself, herself, or themselves, his, her, or their heirs or assigns, from His Majesty, or from the governor, lieutenant governor, or person administering the government of the said province of Lower Canada, or from his, her, or their immediate superior lord or seignior, a release from and extinguishment of the droit de quint, or droit de relief, due and payable by him, her, or them, his, her, or their heirs and assigns, for or in respect of lands so held à titre de fief, such seignior or seigniors, person or persons aforesaid, his, her, and their heirs and assigns, shall be held and bound, when thereunto required by any of his, her or their censitaires, or the persons who now hold or hereafter may hold the said lands, or any of them, or any part thereof, à titre de fief, in arrière fief as aforesaid, or à titre de cens, to consent to, grant and allow, to and in favour of such censitaires, or other person or persons as aforesaid, requiring the same, a commutation, release, and extinguishment, of and from the droit de quint and droit de relief or droit de lods et ventes, as the case may be, and all other feudal and seigniorial rights and burthens to which such censitaire or other person or persons, his or their heirs and assigns, and his and their lands so held by him or them, may be subject or liable to such seignior or seigniors, person or persons aforesaid, his, her, or their heirs and assigns, for a just and reasonable price, indemnity, or consideration, to be paid for the same, which price, indemnity, or consideration, in case the parties concerned therein shall differ respecting the same, shall be ascertained and fixed by experts to be in that behalf nominated and appointed, according to the due course of law in the said province of Lower Canada, regard being had to the value of the said lands so held à titre de cens, or à titre de fief, in arrière-fief as aforesaid.

IV. And be it further enacted, that if any seignior or seigniors, person or persons holding lands à titre de fiefs, who shall so as aforesaid have obtained a release of and from the droit de quint, or droit de relief, shall when thereunto required by any person or persons holding any of the said lands à titre de fief, in arrière-fief, or by any censitaire or censitaires holding any of the said lands à titre de cens as aforesaid, upon the payment or lawful tender of the price, indemnity, or consideration in that behalf hereinbefore provided, refuse or neglect to consent and allow to and in favor of such person or persons holding such lands à titre de fief, in arrière-fief, as aforesaid, or of such censitaire, or censitaires, a commutation, release and extinguishment of the droit de quint, and droit de relief, or of such censitaire or censitaires, as the case may be, an instrument in writing, before two notaries, or a notary and two witnesses, containing such commutation, release and extinguishment as aforesaid, it shall and may be lawful to and for such person or persons, holding such lands à titre de fief, in arrière-fief, as aforesaid, or for such censitaire or censitaires as the case may be, to implead such seignior or seigniors, person or persons as aforesaid, in any of His Majesty's court of competent jurisdiction in the said province of Lower Canada, for the purpose of compelling him or them to accept the price, indemnity or consideration herein before provided, to be ascertained and fixed as aforesaid, for the commutation, release, and extinguishment of the droit de quint, and droit de relief, or droit de cens and droit de lods et ventes, as the case may be, and of all other feudal and seigniorial rights and burthens required and demanded by such censitaire or censitaires, or other person or persons as aforesaid, and to obtain the full and entire benefit of such commutation, release and extinguishment, and upon the payment or lawful tender and deposit of the price, indemnity, or consideration payable by such person or persons as aforesaid, or such censitaire or censitaires in the hands of the prothonotary or clerk of the said court, for the use of the said seignior or seigniors, person or persons so impleaded as aforesaid in such court, it shall and may be lawful for the said court, and the said court is hereby required, by their judgment in that behalf, to award and adjudge to such person or persons as aforesaid, or to such censitaire or censitaires, the benefit of such commutation, release or extinguishment, for and in respect of the lands for which such payment or tender and deposit shall have been made, as fully and effectually, to all intents and purposes whatsoever, as if such commutation, release and extinguishment had been voluntarily consented to be granted and allowed by the said seignior or seigniors, person or persons so impleaded as aforesaid.

V. And be it further enacted, that in all cases where such commutation, release and extinguishment as aforesaid, shall have been voluntarily agreed upon by and between any seignior or seigniors, person or persons holding lands à titre de fief, who shall have obtained a release of the droit de quint, or droit de relief, as aforesaid, and his or their censitaire or censitaires, or other person or persons aforesaid, in and by any written agreement or instrument in writing, executed before two notaries, or a notary and two witnesses, and also in all cases where such commutation, release and extinguishment shall have been declared awarded, and adjudged by any court of competent jurisdiction, by their judgment in that behalf as aforesaid, in favour of any person or persons as aforesaid, all and every droit de quint, and droit de relief, droit de cens and droit de lods et ventes, and mutation fines of every description, droit de retrait, casuel and conventionel, droit de banalité, droit de corvée, and every feudal and territorial right and burthen whatsoever, upon or in respect of the lands for which such commutation, release and extinguishment shall have been agreed upon, declared, awarded or adjudged as aforesaid, shall from and after the making of such agreement or instrument in writing, or the rendering of such judgment as aforesaid, be absolutely and for ever taken away, extinguished and discharged, as well in respect of such censitaire and censitaires, or other person or persons as aforesaid, his, her, and their heirs and assigns, as in respect of the said lands; and the tenure of the said lands shall thenceforth be converted into free and common soccage, and the said lands be held and be taken and considered to be held in free and common soccage, in like manner as lands are holden in free and common soccage in that part of Great Britain called England, any law, usage or custom to the contrary notwithstanding.

VI. Provided always, and be it further enacted, that nothing herein contained shall extend or be construed to extend to discharge any arrears of cens et rentes or any lods et ventes, or dues that may have accrued before such commutation as aforesaid shall have been required by any censitaire or censitaires or in anywise to destroy, alter, or affect the recourse which the seignior or seignors to whom such arrears, lods et ventes, or rights, shall be due, might lawfully have had or taken for the recovery of the same, if such commutation had not been made.

VII. Provided nevertheless, and be it further enacted, that in all cases where such application for a commutation, release and extinguishment of feudal or seigniorial rights, dues or burthens shall be made in respect of lands held either immediately of the crown, or as an arrière fief, as aforesaid, public notice thereof shall be given by the person so applying, for the space of three calendar months, in the Quebec Gazette, published by authority, and in two other newspapers published respectively in the cities of Quebec and Montreal, thereby calling on all persons who may have or claim to have any present or contingent right, interest, security, charge or incumbrance, either by mortgage (hypothêque) general or special, express or implied, or under any other title, or by any other means whatsoever, in or upon the lands in respect to which such commutation, release and extinguishment of feudal and seigniorial rights, dues, or burthens, shall be so applied for, to signify in writing, within three calendar months from the date of such notification, their assent to or dissent from the surrender, re-grant and change of tenure of such lands and the commutation, release and extinguishment of the feudal and seigniorial dues, and burthens so applied for; which consent or dissent in writing shall, in case of an application made by petition to His Majesty, as hereinbefore mentioned, be lodged within the said last mentioned period of three calendar months (and access shall be by all persons freely had thereto) in the office of the executive council, of the said province and in the case where such commutation, release and extinguishment of feudal and seigniorial dues, rights and burthens shall be required of a seignior, for and in respect of lands holden à titre de fief, in arrière fief, such consent or dissent in writing shall be lodged within the said time (and access shall be by all persons freely had thereto) in the office of the prothonotary or clerk of the superior court of original jurisdiction, holding civil pleas in the district where such lands shall be situate; and provided further, that no such surrender, re-grant, change of tenure, or commutation release, and extinguishment of feudal and seigniorial dues, rights and burthens, shall he good, valid or effectual to any purpose whatsoever, unless such notification shall have been previously made, and the consent of all such persons having, holding or claiming any right or interest, security, charge or imcumbrance in or upon the said lands, shall have been signified and deposited as aforesaid, or until the person applying for such commutation, release or extinguishment of feudal or seigniorial dues, rights, or burthens, shall show, to the satisfaction of His Majesty's executive council, or of his immediate superior lord or seignior, as the case may be, that no such claim hath been made or signified, or that having been made, it hath been satisfied or discharged, or been declared by a judgment of a competent court of law to be unfounded.

VIII. And whereas doubts have arisen, whether lands granted in the said Province of Lower-Canada by His Majesty, or by any of His Royal Predecessors, to be holden in free and common soccage, shall be held by the owners thereof, or will subsequently pass to other persons according to the rules of descent and alienation in force in England, or according to such rules as where established by the ancient laws of the said province for the descent and alienation of land situate therein; be it therefore declared and enacted, that all lands within the province of Lower-Canada, which have heretofore been granted by His Majesty, or by any of His Royal Predecessors, to any person or persons, their heirs and assigns, to be holden in free and common soccage, or which shall or may hereafter be so granted by His Majesty, his heirs and successors, to any person or persons, their heirs and assigns, to be holden in free and common soccage, may and shall be, by such grantees, their heirs and assigns, held, granted, bargained, sold, aliened, conveyed and disposed of, and may and shall pass by descent, in such manner and form, and upon and under such rules and restrictions, as are by the law of England established and in force in reference to the grant, bargain, sale, alienation, conveyance, disposal, descent of lands holden by the like tenure therein situate, or to the dower or other rights of married women in such lands, and not otherwise, any law, custom or usage to the contrary in anywise notwithstanding: Provided nevertheless, that nothing herein contained shall extend to prevent His Majesty, with the advice and consent of the Legislative Council and Assembly of the Province of Lower-Canada, from making and enacting such laws or statutes as may be necessary for the better adapting the before mentioned rules of the law of England, or any of them, to the local circumstances and condition of the said Province of Lower-Canada, and the inhabitants thereof.

IX. And whereas under and by virtue of a certain act passed in the forty-ninth year of the reign of His late Majesty King George the Third, intituled: "An act for establishing courts of judicature in the Island of Newfoundland, and in the islands adjacent, and for re-annexing part of Labrador, and the islands lying on the said Coast, to the government of Newfounland," and of the act passed in the fifth year of the reign of His present Majesty, intituled: "An act for the better administration of justice in Newfoundland, and for other purposes," the Coast of Labrador, from the river St. John to Hudson's Straights, and the Island of Anticosti and all the islands adjacent to the said Coast, except the Islands of Madelaine, are annexed to and form part of the government of Newfoundland; and it is expedient that certain parts of the said Coast of Labrador should be re-annexed to and form part of the province of Lower Canada, be it therefore enacted, That so much of the said coast as lies to the westward of a line to bo drawn due north and south from the bay or harbour of Anse-Sablon inclusive, as far as the 52nd degree of north latitude, with the Island of Anticosti and other islands adjacent to such part, as last aforesaid, of the Coast of Labrador, shall be and the same are hereby re-annexed to and made a part of the said province of Lower Canada, and shall henceforward be subject to the laws of the said province, and to none other; and so much of the said recited acts passed in the forty ninth year of the reign of His Majesty King George the Third, and in the fifth year of the reign of His present Majesty, as relates to such part of the Coast of Labrador, as last aforesaid, and the said Island of Anticosti and other adjacent islands, shall be and the same is hereby repealed.

X. And whereas it is necessary to enable His Majesty more ea 111 s1ty to resume from time to time such uncultivated lands within the said province, held in free and common soccage, as now are or here after may be liable to escheat, and become forfeited to His Majesty by escheat, by reason of the non performance of the conditions of settlement and cultivation, or other conditions mentioned and contained in the letters patent or grants thereof heretofore made by His Majesty, either in virtue of this act or otherwise; be it enacted That it shall and may be lawful for the governor, lieutenant governor, or person administering the government of the said province, with the advice of the executive council thereof, to constitute and appoint, by a commission under the great seal of the said province, one or more person or persons to be a commissioner or commissioners of escheats and forfeitures of land within the said province, which said commissioner and commissioners is and are hereby authorized and empowered from time to time, on information being made and filed before him or them by the attorney general or solicitor general of the said province, or other person appointed for that purpose on behalf of His Majesty, his heirs or successors, concerning the performance or non-performance of the conditions of any grants or letters patent by which any such land as aforesaid shall at any time have been held, to enquire, on the part and behalf of His Majesty, by the oaths of twelve good and lawful men, to be duly summoned for that purpose by the sheriff, upon a precept to be issued and directed to him from the office of the secretary of the province, whether the lands mentioned in the said information are or shall be liable to escheat and be forfeited to His Majesty, by reason of non-performance of any of the conditions of the respective grants or letters patents thereof; and the said commissioner or commissioners shall proceed in the cognizance of the matters aforesaid as nearly as circumstances will admit, according to the rules, course and practice of the law of England, in the like cases, and shall have power and authority to summon witnesses to attend and give evidence before the said inquest; and the testimony on oath of one or more competent witness or witnesses, either before the said inquest, or taken in writing before a person or persons to be appointed for that purpose by the said commissioner or commissioners, and returned and exhibited before the said inquest, shall be good and sufficient evidence of the matters alleged in such information; and the said commissioner or commissioners shall duly return the inquisition which he or they shall, from time to time, take by virtue of this act under his or their seals, those by whose oaths he or they shall have taken the same, into the office of the secretary of the province within thirty days after the taking thereof, and also within the same time return a transcript thereof, and of the whole proceedings relating to the same, into the supreme court of original jurisdiction holding civil pleas in the district in which the lands and premises comprised in the information shall be situate, and thereupon such lands and premises, as are thereby found to be forfeited to His Majesty for non performance of any of the conditions on which the same shall have been granted, shall be and they are hereby declared to be re-vested in His Majesty, his heirs and successors, any former grant or letters patent thereof not withstanding: provided always, that no new grant of such lands shall be made for the space of one year from the date of such inquisition, except to the person or persons, holding or claiming the same under the former letters patent thereof, or by a lawful title derived under the same.

XI. And be it further enacted, that the clerk of the said court of escheats and forfeitures, to be appointed in like manner as the said commissioner or commissioners, shall, within fourteen days after the filing of such information, insert in the Quebec Gazette, published by authority, a notice signed by him, and shall as soon thereafter as may be, cause the same to be posted upon a public place as near to the lands mentioned in the said information as circumstances will admit, thereby notifying all persons interested in such lands, that such information has been filed for the purposes aforesaid, and of the time and place of holding an inquest of office before the said commissioner or commissioners, concerning the matters therein alleged, which time shall not exceed four or be less than two calendar months from the publishing of such notice; and such notice being so published, and proof thereof made to the satisfaction of the said commissioner or commissioners, shall be instead of all other notice, process, writ, summons, or other proceeding whatever, for the notification and appearance of the person or persons interested in such lands, and shall conclude all such persons for ever: provided, that it shall be lawful for all persons interested in or entitled to such lands as are comprised in any office or inquisition so made and returned as aforesaid, to traverse the same in the court into which it shall have been returned, within three calendar months from the date thereof; and the notice hereinbefore required, and the inquisition so to be taken in pursuance thereof, shall be deemed sufficient and conclusive notice to the traverser, and all others concerned in such traverse; and such court shall thereupon hear, try and determine the said traverse, as nearly as circumstances will admit, according to the rules, course and practice of the law of England in the like cases, and the judgment of the said court thereon shall be final.

XII. And whereas divers persons within the said province of Lower Canada, hold or claim by occupancy, lawful prescription, or transfer, or by doubtful titles, divers of the lands which, in pursuance of the act of parliament made in the thirty-first year of the reign of His said late Majesty King George the Third, have been appropriated within the said province of Lower Canada, for the maintenance of a protestant clergy: And whereas divers parts of the land so appropriated as aforesaid for the support of a protestant clergy, are from time to time required as the site of public buildings and other works carried on at the public ex pence within the said province: And whereas divers parts of such appropriated lands so aforesaid, which have not been brought into cultivation by or for the benefit of the protestant clergy within the said province, are sometimes required to enable His Majesty to complete the settlement of other waste lands in the immediate vicinity thereof, but by reason of the said lands being so appropriated as aforesaid, it is impossible, except by the consent of parliament, to quiet the possession of such persons so claiming the same by such titles as aforesaid, or to obtain a surrender and conveyance, or to effect an exchange of such parts thereof, as may be so required as aforesaid for the public service or for the completion of any such settlements as aforesaid; be it therefore enacted that whenever and so often as it shall appear to the governor, lieutenant governor or other person administering the government of the said province, that the surrender and cession of any part of the lands so appropriated as aforesaid for the benefit of a protestant clergy in the said province, is necessary for quieting the titles of any of His Majesty's subjects to lands held or claimed by them by occupancy, lawful prescription, transfer, or by doubtful titles, as aforesaid, or is necessary or would be convenient for the carrying on of any public buildings or works, or for the more effectual settlement of any district or tract of land within the said province, or otherwise, for His Majesty's service or for the benefit of the said province, or of His Majesty's subjects therein resident, then, and in any or either of the cases aforesaid, it shall and may be lawful for the bishop of Quebec, for the time being, on behalf of the said protestant clergy, in compliance with any requisition in writing to him for the purpose made by such governor, lieutenant governor, or other person administering the government of the said province, and he is hereby required, by a deed under his hand and seal, duly attested by two or more credible witnesses, to surrender, yield up, and convey to His Majesty, his heirs and successors, the lands comprized and described in any such requisition as aforesaid, in exchange for other lands situate in the said province of equal extent and value, to be by His Majesty appropriated and set apart for the support and maintenance of a protestant clergy therein; and which deed, so executed by the said bishop of Quebec for the time being, shall be valid and effectual in law, to vest in His Majesty, his heirs and successors, all the land therein included and comprized; and such lands shall and may, by His Majesty, his heirs and successors, be re-granted and re-conveyed to any other person or persons, for quieting their possession and titles, or otherwise, as may from time to time be expedient or necessary, without any further appropriation of land being thereupon made for the benefit of a protestant clergy.

Notes


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