The Government of French Canada

Beyond and above all the regular tribunals, beyond and above the council itself, was the independent jurisdiction lodged in the person of the king’s man, the intendant.

Our special project presenting the definitive account of France in Canada by Francis Parkman, one of America’s greatest historians.

Previously in The Old Regime In Canada. Continuing chapter 16

In 1675, the number of councilors was increased to seven, and in 1703 it was again increased to twelve; but the character of the council or court remained the same. It issued decrees for the civil, commercial, and financial government of the colony, and gave judgment in civil and criminal causes according to the royal ordinances and the Coutume de Paris. It exercised also the function of registration borrowed from the parliament of Paris. That body, it will be remembered, had no analogy whatever with the English parliament. Its ordinary functions were not legislative, but judicial; and it was composed of judges hereditary under certain conditions. Nevertheless, it had long acted as a check on the royal power through its right of registration. No royal edict had the force of law till entered upon its books, and this custom had so deep a root in the monarchical constitution of France, that even Louis XIV., in the flush of his power, did not attempt to abolish it. He did better; he ordered his decrees to be registered, and the humbled parliament submissively obeyed. In like manner all edicts, ordinances, or declarations relating to Canada were entered on the registers of the superior council at Quebec. The order of registration was commonly affixed to the edict or other mandate, and nobody dreamed of disobeying it.

[Many general edicts relating to the whole kingdom are also registered on the books of the council, but the practice in this respect was by no means uniform.]

The council or court had its attorney-general, who heard complaints and brought them before the tribunal if he thought necessary; its secretary, who kept its registers, and its huissiers or attendant officers. It sat once a week; and, though

it was the highest court of appeal, it exercised at first original jurisdiction in very trivial cases. [1] It was empowered to establish subordinate courts or judges throughout the colony. Besides these there was a judge appointed by the king for each of the three districts into which Canada was divided, those of Quebec, Three Rivers, and Montreal. To each of the three royal judges were joined a clerk and an attorney-general under the supervision and control of the attorney-general of the superior court, to which tribunal appeal lay from all the subordinate jurisdictions. The jurisdiction of the seigniors within their own limits has already been mentioned. They were entitled by the terms of their grants to the exercise of “high, middle, and low justice;” but most of them were practically restricted to the last of the three, that is, to petty disputes between the habitans, involving not more than sixty sous, or offences for which the fine did not exceed ten sous. [2] Thus limited, their judgments were often useful in saving time, trouble, and money to the disputants. The corporate seigniors of Montreal long continued to hold a feudal court in form, with attorney-general, clerk, and huissier; but very few other seigniors were in a condition to imitate them. Added to all these tribunals was the bishop’s court at Quebec to try causes held to be within the province of the church.

[1: See the Registres du Conseil Supérieur, preserved at Quebec. Between 1663 and 1673 are a multitude of judgments on matters great and small; from murder, rape, and infanticide, down to petty nuisances, misbehavior of servants, and disputes about the price of a sow.]

[2: Doutre et Lareau, Histoire du Droit Canadien, 135.]

The office of judge in Canada was no sinecure. The people were of a litigious disposition, partly from their Norman blood, partly perhaps from the idleness of the long and tedious winter, which gave full leisure for gossip and quarrel, and partly from the very imperfect manner in which titles had been drawn and the boundaries of grants marked out, whence ensued disputes without end between neighbor and neighbor.

“I will not say,” writes the satirical La Hontan, “that Justice is more chaste and disinterested here than in France; but, at least, if she is sold, she is sold cheaper. We do not pass through the clutches of advocates, the talons of attorneys, and the claws of clerks. These vermin do not infest Canada yet. Everybody pleads his own cause. Our Themis is prompt, and she does not bristle with fees, costs, and charges. The judges have only four hundred francs a year, a great temptation to look for law in the bottom of the suitor’s purse. Four hundred francs! Not enough to buy a cap and gown, so these gentry never wear them.”

[La Hontan, I. 21 (ed. 1705). In some editions, the above is expressed in different language.]

Thus far La Hontan. Now let us hear the king; himself. “The greatest disorder which has hitherto existed in Canada,” writes Louis XIV. to the intendant Meules, “has come from the small degree of liberty which the officers of justice have had in the discharge of their duties, by reason of the violence to which they have been subjected, and the part they have been obliged to take in the continual quarrels between the governor and the intendant; insomuch that justice having been administered by cabal and animosity, the inhabitants have hitherto been far from the tranquility and repose which cannot be found in a place where everybody is compelled to take side with one party or another.”

[Instruction du Roy pour le Sieur de Meules, 1682.]

Nevertheless, on ordinary local questions between the habitants, justice seems to have been administered on the whole fairly; and judges of all grades often interposed in their personal capacity to bring parties to an agreement without a trial. From head to foot, the government kept its attitude of paternity.

Beyond and above all the regular tribunals, beyond and above the council itself, was the independent jurisdiction lodged in the person of the king’s man, the intendant. His commission empowered him, if he saw fit, to call any cause whatever before himself for judgment; and he judged exclusively the cases which concerned the king, and those involving the relations of seignior and vassal. [3] He appointed subordinate judges, from whom there was appeal to him; but from his decisions, as well as from those of the superior council, there was no appeal but to the king in his council of state.

[3: See the commissions of various intendants, in Edits et Ordonnances]

On any Monday morning one would have found the superior council in session in the antechamber of the governor’s apartment, at the Chateau St. Louis. The members sat at a round table. At the head was the governor, with the bishop on his right, and the intendant on his left. The councilors sat in the order of their appointment, and the attorney-general also had his place at the board. As La Hontan says, they were not in judicial robes, but in their ordinary dress, and all but the bishop wore swords. [4] The want of the cap and gown greatly disturbed the intendant Meules, and he begs the minister to consider how important it is that the councilors, in order to inspire respect, should appear in public in long black robes, which on occasions of ceremony they should exchange for robes of red. He thinks that the principal persons of the colony would thus be induced to train up their children to so enviable a dignity; “and,” he concludes, “as none of the councilors can afford to buy red robes, I hope that the king will vouchsafe to send out nine such. As for the black robes, they can furnish those themselves.” [5] The king did not respond, and the nine robes never arrived.

[4: Compare La Poterie, I. 260, and La Tour, Vie de Laval, Liv. VII.]

[5: Meules au Ministre, 28 Sept. 1685.]

The official dignity of the council was sometimes exposed to trials against which even red gowns might have proved an insufficient protection. The same intendant urges that the tribunal ought to be provided immediately with a house of its own.

“It is not decent,” he says, “that it should sit in the governor’s antechamber any longer. His guards and valets make such a noise, that we cannot hear each other speak. I have continually to tell them to keep quiet, which causes them to make a thousand jokes at the councilors as they pass in and out.” [6] As the governor and the council were often on ill terms, the official head of the colony could not always be trusted to keep his attendants on their good behavior. The minister listened to the complaint of Meules, and adopted his suggestion that the government should buy the old brewery of Talon, a large structure of mingled timber and masonry on the banks of the St. Charles. It was at an easy distance from the chateau; passing the Hôtel Dieu and descending the rock, one reached it by a walk of a few minutes. It was accordingly repaired, partly rebuilt, and fitted up to serve the double purpose of a lodging for the intendant and a court-house. Henceforth the transformed brewery was known as the Palace of the Intendant, or the Palace of Justice; and here the council and inferior courts long continued to hold their sessions.

[6: Meules au Ministre, 12 Nov., 1681.]

Some of these inferior courts appear to have needed a lodging quite as much as the council. The watchful Meules informs the minister that the royal judge for the district of Quebec was accustomed in winter, with a view to saving fuel, to hear causes and pronounce judgment by his own fireside, in the midst of his children, whose gambols disturbed the even distribution of justice.

[Ibid.]

The superior council was not a very harmonious body. As its three chiefs, the man of the sword, the man of the church, and the man of the law, were often at variance, the councilors attached themselves to one party or the other, and hot disputes sometimes ensued. The intendant, though but third in rank, presided at the sessions, took votes, pronounced judgment, signed papers, and called special meetings. This matter of the presidency was for some time a source of contention between him and the governor, till the question was set at rest by a decree of the king.

The intendants in their reports to the minister do not paint the council in flattering colors. One of them complains that the councilors, being busy with their farms, neglect their official duties. Another says that they are all more or less in trade. A third calls them uneducated persons of slight account, allied to the chief families and chief merchants in Canada, in whose interest they make laws; and he adds that, as a year and a half or even two years usually elapse before the answer to a complaint is received from France, they take advantage of this long interval to the injury of the king’s service. [7] These and other similar charges betray the continual friction between the several branches of the government.

[7: Meules au Ministre 12 Nov, 1684.]

The councilors were rarely changed, and they usually held office for life. In a few cases the king granted to the son of a councilor yet living the right of succeeding his father when the charge should become vacant. [8] It was a post of honor and not of profit, at least of direct profit. The salaries were very small and coupled with a prohibition to receive fees.

[8: A son of Amours was named in his father’s lifetime to succeed him, as was also a son of the attorney-general Auteuil. There are several other cases. A son of Tilly, to whom the right of succeeding his father had been granted, asks leave to sell it to the merchant La Chesnaye.]

Judging solely by the terms of his commission, the intendant was the ruling power in the colony. He controlled all expenditure of public money, and not only presided at the council but was clothed in his own person with independent legislative as well as judicial power. He was authorized to issue ordinances having the force of law whenever he thought necessary, and, in the words of his commission, “to order every thing as he shall see just and proper.” [9] He was directed to be present at councils of war, though war was the special province of his colleague, and to protect soldiers and all others from official extortion and abuse; that is, to protect them from the governor. Yet there were practical difficulties in the way of his apparent power. The king, his master, was far away; but official jealousy was busy around him, and his patience was sometimes put to the proof. Thus the royal judge of Quebec had fallen into irregularities. “I can do nothing with him,” writes the intendant; “he keeps on good terms with the governor and council and sets me at naught.” The governor had, as he thought, treated him amiss. “You have told me,” he writes to the minister, “to bear everything from him and report to you;” and he proceeds to recount his grievances Again, “the attorney-general is bold to insolence, and needs to be repressed. The king’s interposition is necessary.” He modestly adds that the intendant is the only man in Canada whom his Majesty can trust, and that he ought to have more power. [10]

[9: Commissions of Bouteroue, Duchesneau, Meules, etc.]

[10: Meules au Ministre, 12 Nov., 1684.]

– The Old Regime In Canada, Chapter 16 by Francis Parkman

The below is from Francis Parkman’s Introduction.

If, at times, it may seem that range has been allowed to fancy, it is so in appearance only; since the minutest details of narrative or description rest on authentic documents or on personal observation.

Faithfulness to the truth of history involves far more than a research, however patient and scrupulous, into special facts. Such facts may be detailed with the most minute exactness, and yet the narrative, taken as a whole, may be unmeaning or untrue. The narrator must seek to imbue himself with the life and spirit of the time. He must study events in their bearings near and remote; in the character, habits, and manners of those who took part in them, he must himself be, as it were, a sharer or a spectator of the action he describes.

With respect to that special research which, if inadequate, is still in the most emphatic sense indispensable, it has been the writer’s aim to exhaust the existing material of every subject treated. While it would be folly to claim success in such an attempt, he has reason to hope that, so far at least as relates to the present volume, nothing of much importance has escaped him. With respect to the general preparation just alluded to, he has long been too fond of his theme to neglect any means within his reach of making his conception of it distinct and true.

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