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chievous to the last degree. They delayed the collision of the races for a time ; only to make it longer and more severe when it should occur at last. They produced a state of things in the mean time, which was far worse for both parties than the collision itself, had it taken place at its natural time, would have been, for the short period during which it would in that case have lasted.
The policy of the United States, when they came into possession of Louisiana, was precisely the reverse of this. The statesmen who made the purchase of that territory, and had the ordering of its affairs immediately afterwards, well knew, that in an extensive country, where a popular government is to prevail, it is an object of the last importance to have for the whole a common language ; and an object only second in importance to this, to have a general similarity in the laws, institutions, and usages throughout even its most remote districts. To give the command of the Mississippi, the outlet of the great Western valley, to a community which should keep itself apart in speech and laws from the other States, was an idea never entertained. The difficulty, which the presence of a French population presented, was at once met and overcome. The simple process of extending the jurisdiction of the courts of the United States over the new Territory, requiring that the language of the United States should be that of its constitution and public acts, and throwing open its rich lands for settlement on equal terms to all comers, was enough. Every thing else has followed. Louisiana has become a State, with every privilege and power any other State possesses. She is as heartily American as any ; and, though the French language is not yet wholly superseded, no contest in regard to it, or effort to perpetuate it as a local language, is anywhere maintained. Her laws, though touched by no rude hand from without, have been thoroughly revised by herself ; the anomalies which a concurrent action of French and Ainerican legislation had produced in abundance in the practice of her courts, have been effectually removed ; and the code of Louisiana is a model which jurists of the old world have studied, and from which they have borrowed. The collision, in a word, was brought on at once, by the simplest and yet most efficacious means. There has been jealousy and heart-burning. But it has found vent within a narrow space, where it has done the smallest imaginable amount of
VOL. xlix. — No. 105. 53
harm. A little legislative bickering, never carried beyond the State ; a harmless rivalry of municipalities, confined to the city of New Orleans ; and, in a few years, it is all but over. — Great Britain, for her Canadian experiment, had the advantage of us, in point of time, by many years. Perhaps she had an advantage too, in the superior facilities which her form of government afforded her, for governing her Territory as she pleased, while her fusion of the races should be going on, and till they should be sufficiently one people, and her own people, to be safely intrusted with self-government. She was wise enough to throw away her time. How much has it cost ? And how and at what cost can the time now be bought back again ?
Was there any thing in the then position of the colony, to require that this course should be taken? At the conquest, the French Canadian population numbered about 70,000 ; in 1791, probably not 100,000. What could have been easier than to have done with them at the first the little that was done in Louisiana, and then to have let things take their course? The French Canadians are now 400,000 strong, perhaps more ; and no step has been taken yet towards assimilating them to the overwhelming majority who speak the English tongue in all directions round them. To dam up a river, though, is not to stop its source, or to make the rush of its waters, after they shall have burst the dam, useful or safe. It might not have been altogether easy in 1774, for the government, which had then so embroiled the affairs of all the other colonies, to manage the experiment, had they been so minded. At each successive period the difficulty has been growing. And it has to be met at last.
Setting aside, however, the principle of sameness of language and a general similarity of institutions throughout a State ; what were these laws and customs of French Lower Canada, that they should have been recalled from the tomb of the Capulets, to linger through a fifty years' semblance of renewed vitality ? Of the many antiquated systems of law which the French revolution blessed the French nation by sweeping from its courts, there was one which had prevailed over a fraction of the country, and was in no way favorably distinguished, that we ever heard, from any other abrogated by the Code Napoléon. This was the " Coutume de Paris," a matter for an antiquary to amuse himself withal in France ; a law for advocates to study, and judges to decide by, in Lower Canada. It is a curious fact, in how many of the colonies of Great Britain, laws of foreign origin, which their authors have long since abrogated, are to this day retained, just as the Coutume de Paris is retained in Lower Canada. Her old gift of conquering her neighbours' colonies, has done strange service to the antiquary.
The “ Custom of Paris,” however, is not all that is peculiar to the Lower Canada courts. It was modified by edicts and ordinances of the French government, which never were of force beyond its limits; and these are still the law of the land. The ordinances of successive English governors and their Councils come in again to affect this body of law. And last of all, the acts of the Provincial Parliament, and some special acts of the Imperial Parliament, contribute further to swell the confusion of principles, precedents, and rules, French, English, and Canadian, which pass current under the sobriquet of Civil law, in the Lower Province. The Criminal law is that of England in 1763, with a few changes made in it by ordinances and provincial acts. The great reforms, which England has of late years made in it at home, are of no avail for her colony, which “ might, could, would, or should ” have made them for herself, if she had wanted them.
We have a right to look upon the whole of this compound in its present state, as that which Mr. Pitt and his immediate predecessors entailed on Lower Canada, by the course they followed. Had they retained the whole French law of the colony, as the basis of its future code, -making in it at once a few necessary changes, so as to strip it of such features as were irreconcilable with English ideas of criminal procedure, — the result would at least have been a somewhat less confused chance-medley of conflicting principles. How could the criminal law of England harmonize with the real-estate, commercial, and other laws of a part of France ? *
* In illustration, we may just remark, that the “ Coutume de Paris " gives the full force of a mortgage on a man's whole property, real and personal, to any written engagement he may make before a notary. The notary is the sole Custodier of all these papers. The French law had its penalties for abuse of the vast facilities this system gave for fraud. But the English law, knowing nothing of such a practice, is silent on this head. The two together, therefore, leave the Canadian notary to act in the premises as he pleases !
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Had the whole law of England been established, and the abrogation of the French code been made perpetual, the result would still in time have been a system of intelligible and pracricable law. The transition would have been violent; and some rights of property would have suffered, while it was going on. But time would have effected it; and in time its vexations would have been forgotten. In either of these cases, the courts and future legislature of the country might easily have been so constituted, (by the exercise of an ordinary degree of foresight on the part of those who should create them,) as to have performed this work gradually, indeed, but still effectively. As the case stood, the country was placed in a position, in which it was morally impossible for it to remedy the embarrassments of that position. We do not mean to say, that the mere fact of two incongruous codes having been put into operation, side by side, prevented their fusion into one code applicable to the wants of the community. A general constitutional system, that should have worked well, might have overcome this difficulty ; but we have seen to some extent, what that of 1791 was in this respect. The ordinances passed before 1791, had done very little to bring things into form. The laws enacted since have done, — we were on the point of saying, — nothing. The vision at any rate must be microscopic, that can see aught they have done, which would not have been much better left undone.
We profess not to be learned in these cherished “ laws and customs ” of Lower Canada; nor would we wish our readers so hard a fate as that of being forced to make themselves learned in them. * But we must not pass on without endeavouring to convey some faint idea of their necessary effect on all persons, matters, and things, subject to their sway. They are essentially anti-commercial ; and yet the country where they prevail must be, to a great extent, commercial, not merely because a commercial people, of English and American origin, have gained a footing in it, but because, from its command of the St. Lawrence, the trade of a great part of the continent must pass through it, must keep that commercial race on its soil, and must give them wealth there, and influence, and, in the end, numbers ; all laws and usages
* For some account of them, see North American Review, Vol. XXVII. pp. 1 et seq.
of any uncommercial handful of men born there, to the contrary notwithstanding. Can a law, for example, which, along the whole course of the St. Lawrence, so far as it is directly open to the sea, would keep every acre of real estate subject to the payment of a heavy tax, on all improvement, to a seignior who does nothing to improve it, — can such a law, by any skill of man, be kept in force for ever? Yet there it is in force, in this thirty-ninth year of the nineteenth century. All land, held under the seigniorial tenure, is burdened with a yearly payment of a fixed irredeemable rental (cens et rentes), to the seignior, often light, but not unfrequently the reverse. Whenever it is sold, a twelfth part of the purchase money is due to this same seignior, in the shape of lods et ventes. Thus, if a man buy land for $1,000, and in a year or two improve or build upon it to the value of $20,000, it will cost him a twelfth part of that sum to dispose of what he has just spent so much to get. If he had made no improvements, he might have sold again for the twelfth part of his first $1,000, the cost at which his unimproving predecessor parted with it. Let an estate change hands often, and its whole value is soon gone, in successive twelfths to the do-nothing seignior. The seigniories extend all along both banks of the St. Lawrence, and for miles back on each side, till we get beyond Montreal, the head of all navigation from over sea ; on both sides of the Richelieu almost to the province line, or outlet of Lake Champlain ; and for some distance up most of the other considerable rivers of the province ; in a word, everywhere, where trade and enterprise have the best field offered them by nature. There is a law in force (an act of the British Parliament by the way, and most vehemently complained against by the French Canadian Assembly) providing a means for getting rid of this tenure ; but unluckily it put the cart before the horse, by requiring the seignior to move first in each case, and the said cart has stood remarkably still on the strength of it. There is an ordinance, too, just passed by the special Council, for the emancipation of the city and island of Montreal ; but, from some of its provisions, it may be doubted, whether the procedure under it will not prove much too tedious for the exigencies of the case. What those exigencies are, may be readily inferred from the fact, that the city of Montreal, among the very oldest European settlements on the continent, and with natural advantages probably inferior