- Introductory Essays of the DCB/DBC
- The Indians of Northeastern North America
- The Northern Approaches to Canada
- The Atlantic Region
- New France, 1524—1713
- The Administration of New France
- The French Forces in North America during the Seven Years’ War
- The British Forces in North America during the Seven Years’ War
- The Acadians
- The Integration of the Province of Quebec into the British Empire, 1763—91
- The Colonial Office and British North America, 1801—50
- Provincial Justice: Upper Canadian Legal Portraits
The Administration of New France
It was only gradually, with the emergence of new needs occasioned by its territorial and demographic expansion, that New France received its administrative structures. These were not to attain their complete and final form until about 1720. For nearly a century the internal administrative apparatus was in continual evolution, particularly under the influence of the different régimes that were imposed on the colony: those of the Compagnie de la Nouvelle-France or Compagnie des Cent-Associés (1627–63), the Compagnie des Indes Occidentales (1664–74), and the royal government (1663–64; 1674–1760). These administrative institutions, therefore, should not only be described in their state of perfection, but a brief outline of their origin and development should also be given; in this way the reader of this dictionary, perhaps less familiar with the French period of our history, will not be totally baffled by the complexity of operation, more apparent than real, of the various bodies – military, civil, and judicial – which controlled the life of the colony at any given moment.
Compagnie des Cent-Associés (1627–63)
New France had always been under the authority of the king, but this authority had so far been exercised only in remote fashion, through the intermediary of monopoly companies little concerned with their commitments and of inactive viceroys, both of whom were under the somewhat vague jurisdiction of the admiral of France. But in October 1626, wishing to bring colonial affairs under control, Richelieu had himself appointed “grand master, head, and superintendent general of French navigation and trade.” The cardinal abolished the offices of admiral of France and viceroy of New France, annulled the existing monopolies, and on 29 April 1627 established the “Compagnie des Cent‑Associés for trade in Canada,” and made over New France to it, “with full seigneurial rights of ownership and justice.” As seigneurs of New France, the Cent‑Associés were made responsible for administering it under Richelieu’s supervision, acting in the name and under the authority of Louis XIII, and according to the terms of their charter.
The first form of government adopted for Canada was extremely simple. On presentation of three candidates by the company, Richelieu chose and presented in his turn to the king the one who, “in the absence of his lordship the cardinal,” would command in New France “for the king’s service.” Samuel
The first important change occurred in 1647, two years after the formation of the Communauté des Habitants. Indeed, the king established, in association with the community, a managing and supervisory council formed of the governor general (Montmagny), the superior of the Jesuits, and the governor of Montreal (27 March 1647). This council, often called the first council of New France – and sometimes council of the fur trade – to distinguish it from the Conseil Souverain, was enlarged the following year (5 March 1648): on it were to sit, as well as the governor general [Louis
Another improvement in the administrative organization of New France was made in 1651, when Governor Jean
Despite the existence of a council and various tribunals, the governor general’s authority remained intact, and was still exercised in all spheres of civil and military activity, including that of justice. But on 7 March 1657 the king reorganized the council of 1647 and 1648: composed of the governor general, a director apppointed by the Compagnie des Cent‑Associés, and four councillors elected for two years (two by the inhabitants of Quebec, the other two by those of Montreal and Trois‑Rivières respectively), the new council received numerous legislative, executive, and judiciary powers, but above all it was made responsible for the commerce, fur trade, and financial management of the colony. Despite the increased importance of this council, the governor still retained the liberty to act at his discretion; in reality this was becoming more difficult. A second statute, obtained like the first by the Cent‑Associés, is dated 13 May 1659. It decreed that cases of all kinds should be referred in the first instance to the judges set up by the company, that appeals should be taken to the parlement of Paris except for matters of very little consequence or requiring immediate judgement, and that the governor no longer had authority to suspend or revoke law-officers, the king reserving this right to himself after due investigation. One might as well say that the governor immediately lost almost all his prerogatives (which were considerable) in the field of justice, and even the possibility of exercising effective control over the legal system. The real power, in the field of justice, passed into the hands of the seigneurial attorney of the company in Quebec. Consequently, from then on the governor found himself ill-placed for intervening directly in matters of law and order, and still more so for imposing on his colleagues in the council an authority about which he himself could have no illusions.
First Royal Government (1663–64)
This reduction of the powers of the governor general was only the prelude to radical changes which were to be brought about abruptly in 1663. In March of that year the Cent‑Associés handed their resignation to the king and returned New France to him. The whole administrative structure of the colony, founded on the seigneurial rights of the company, collapsed. The king replaced it by an administrative system similar to that of the French provinces, which comprised a governor general, a Conseil Souverain, and an intendant. But the Sieur Robert, who was nominated to be intendant of New France, did not come to Canada; the legislative, executive, and judicial powers were divided temporarily between the governor and the Conseil Souverain, who were to administer the colony under the direct authority of Louis XIV.
The Conseil Souverain was created in April 1663. It was composed of the governor general [Augustin de
Just like the provincial parlements which had inspired it, the Conseil Souverain was essentially a supreme court of justice, responsible, in addition to its purely legal functions, for the recording (or transcription in the registers of insinuations) of royal ordinances – which it thus implemented in the colony; like the parlements also, it possessed (after 1667) the right of remonstrance, and had the power to make regulatory rulings (that is, to settle provisionally and on a suppletory basis questions which the customary law and the ordinances did not cover). But in 1663 this council, as the result of an intendant’s absence, found itself entrusted with an important administrative and political role which the French parlements did not have: it was to control the colony’s finances, supervise the fur trade, maintain law and order, regulate commerce, appoint judges, law-officers, and notaries, and finally it could designate councillors to see that its decisions were carried out. On the legal plane, the council played the double role of an appeal court and a court of first instance, for both civil and criminal affairs; an appeal against its sentences could be made only to the king’s council. Furthermore, the Conseil Souverain was responsible for exercising surveillance over the entire legal machinery of New France.
Without delay, the council gave its attention to organizing the colony’s judicial system, which had been wiped out by the resignation of the Cent‑Associés. Using its right to act as a court of first instance, it did not deem it necessary to give Quebec another royal tribunal; but Montreal and Trois‑Rivières still had to be provided for. On 18 Oct. 1663 the council ratified the establishment of a royal seneschal’s court at Montreal, and the appointment by the governor general and the vicar apostolic of a royal judge for civil and criminal affairs, a king’s attorney [Charles Le
In this administrative system of 1663, which was to last only a year, the governor general had again lost some of his powers: all civil administration had passed into the hands of the council; in the legal sphere he was now simply the president of the Conseil Souverain; in the vast field of public order he could intervene only conjointly with the council; he had to share with the vicar apostolic the appointing of councillors and the granting of seigneuries. In his own right, there now remained to this once all-powerful personage military affairs, a rather general supervisory duty, and of course a great moral authority as personal representative of the king in New France.
Compagnie des Indes Occidentales (1664–74)
Scarcely a year had passed since the resignation of the Cent‑Associés when Louis XIV, influenced by Colbert, created in May 1664 the Compagnie des Indes Occidentales, and granted New France to it, “with full ownership and rights of seigneurial justice.” Once more the colony was to experience seigneurial administration, albeit in a somewhat mitigated form. By the company’s charter the king reserved to himself the prerogative of granting their commissions to the governors and officers of the Conseil Souverain, who were to be chosen and appointed by the company; to the latter belonged the right of commissioning all the other officials and law-officers. Nevertheless, it was Louis XIV who appointed the governors, and later on the intendants; in turn the governors and intendants appointed the councillors. This infringement of the company’s charter was a constant source of trouble in the administration of the colony: the king’s men, in their attempts to impose royal policy everywhere and control the law-officers, fought with the company’s men. The whole mechanism of administrative institutions was disrupted for some 10 years.
From 1664 to 1674 New France was therefore subject to a double metropolitan authority: that of the king, which was normally exercised through the intermediary of the “minister” Colbert (he was to become secretary of state for the Marine in 1669), and that of the Compagnie des Indes Occidentales, which was represented at Quebec by its agent general. In the numerous conflicts over jurisdiction that resulted from this division of authority, it was the company that gave way most often, so much so that the seigneurial structures provided for in the charter of 1664 soon began to show stronger and stronger traces of royal influence.
The entry of the Compagnie des Indes Occidentales upon the Canadian scene had profound repercussions on the institutions set up in 1663. The Conseil Souverain, at the same time that it allowed the company’s agent general to take a seat on the council, had to make over to the company the supervision of the fur trade, the regulating of commerce, and the appointment of judges, law-officers, and notaries, as well as sharing with it the control of colonial finances; only its powers with respect to finance and to the maintenance of law and order, which it shared with the company and the governor respectively, still distinguished the Conseil Souverain from the parlements of France. For his part the governor, in the sphere of military affairs, became theoretically an agent of the company, whose entire jurisdiction in this field was affirmed by the charter of 1664. On this point, however, as on many others, the king changed his mind; through the governors, whom he appointed himself, he kept military and diplomatic control of New France. Finally, judges, law-officers, and notaries could no longer cite their royal titles as legal authority; once again the administration of justice depended on a seigneurial regime.
Had it not been for the arrival at Quebec, in the autumn of 1665, of the first intendant of New France [Jean
The same year that Intendant Talon arrived (1665), another personage landed at Quebec, entrusted with an extraordinary task and armed with extraordinary powers: the lieutenant general Alexandre de
At the end of 1665, as a result of the conflict between Saffray de Mézy and Laval and of the changes that had occurred since 1664, justice in the colony was in need of a complete overhaul. The Conseil Souverain had not met since the preceding 6 July, thus depriving the town of Quebec of any court of first instance and leaving the other jurisdictions without a court of appeal. At Trois‑Rivières and Montreal the “royal” courts had been more or less maintained, but the judges and law-officers, who had been appointed under the royal regime, had not yet been confirmed in office by the company, and they sat irregularly. At Quebec, to prevent the inconveniences resulting from the paralysis of the council, the intendant heard cases and gave judgement himself. On 6 Dec. 1666 the Conseil Souverain was finally reorganized, on the same footing as in 1663, but including the intendant, who seems to have replaced the agent of the company; there is no further mention of the latter as a member of the council.
At the beginning of 1667, using its rights of justice, the Compagnie des Indes Occidentales established at Quebec a court of seigneurial justice – the provost court of Quebec – responsible for hearing in first instance all cases relating “to affairs of justice, public order, trade or navigation, whether they be civil or criminal,” and for receiving appeals from the seigneurial jurisdictions. This court consisted of a lieutenant general for civil and criminal affairs [Louis-Théandre
As long as the lieutenant general, Prouville de Tracy, stayed in the colony, the institutions, once set up, functioned more or less normally, without the representatives of the Compagnie des Indes Occidentales being too sharply beset by the royal power. But Tracy’s departure (1667) really set hostilities in motion. The Intendants Talon and Claude de
Second Royal Government (1674–1760)
At the time when the royal government began, the great administrative institutions of the colony were already created. For another half-century, it is true, they were to evolve somewhat, and gradually to be completed and take precise shape, but the general framework erected from 1663 on was to remain unchanged. The whole administration, both civil and military, would depend on the governor general and the intendant, and justice, of which the pyramidal organization had been sketched out from 1663 to 1667, would have at its summit the Conseil Souverain, a sort of supreme court which would pass judgements without appeal in Canada.
In theory the jurisdiction of the governor general, the intendant, and the Conseil Souverain extended to the whole of New France, that is to the totality of French possessions in North America; in practice, because of distances and the difficulty of communications, Acadia and Louisiana had their own governments, which were authorized to correspond directly with the mother country. The inhabited area of the colony – Canada properly so called – was divided into three governments, or administrative territories, centring around the towns of Quebec, the capital and also the episcopal see, Trois‑Rivières, and Montreal. The government of Quebec extended, on the north shore, from Les Éboulements to Grondines, and on the south shore from Rimouski to Deschaillons; that of Trois‑Rivières, from Sainte-Anne-de-La-Pérade to Maskinongé on the north shore and from Saint-Pierre-Ies-Becquets to Yamaska on the south; to the west of Maskinongé and Yamaska, the government of Montreal had as its limits the last farms in the region of Châteauguay and Vaudreuil. The west and the pays d’en haut, which were fur-trading and mission territories where a whole network of forts sprang up, were direct dependencies of the authorities of New France, at Quebec.
From 1674 to 1760 New France was under the authority of the king, whose representative and spokesman for colonial affairs was the minister of Marine (or more exactly the secretary of state for the Marine). During the regency, however, as a result of the temporary abolition of the offices of secretary of state, royal authority was exercised over New France through the intermediary of the council of Marine (1715–23). But the accession of Louis XV brought a return to the old formula. In France the ministry of Marine took the place of a ministry of colonies, the colonies, however, being clearly subordinated to the former, as a study of the correspondence of the minister and of the budgets of New France makes quite plain.
The principal function of the governor general, the first person in the hierarchy of the colony, who was appointed by the king and removable at his pleasure, was to represent the person of the sovereign in New France. Consequently he held authority over all orders in Canada, and had to maintain them in their obedience to the king and their respect for the monarchy. In all matters, even in those which did not belong to his immediate jurisdiction, he was required to support with his prestige – which was great, as were the honours that were rendered to him – and with his authority the intendant, the Conseil Souverain, and in general all officers responsible for the colony’s welfare and the king’s service. In exceptionally grave circumstances, and if he deemed them prejudicial to the country’s welfare and the interests of the state, he had the power to oppose the decisions of the intendant himself, on condition, however, that he justified his conduct fully before the minister and the king. This great moral authority, which was conferred on him by his dignity as the monarch’s personal representative, explains why he was acknowledged to have a kind of joint jurisdiction, with the intendant, in the fields of population and colonization, trade and industry, maintenance of order, and religion (supervision of clergy, of religious communities, and of hospitals), although in all sections of economic and social life the intendant was the initiator, promoter, and indispensable king-pin. Again in his capacity as the representative of the sovereign, the original owner of the “domain” from which they were taken, he shared with the intendant the granting of seigneuries, and, with him, delivered judgement in the legal disputes and contestations that might result.
Beyond these general powers derived from his pre-eminent status as the king’s representative, the governor general had special attributions in two spheres where his jurisdiction was exclusive: military affairs and diplomatic relations. He acted in the colony as commander or general in chief of the armies, with authority over any commander or general who might land there on behalf of the king. He commanded the troops, presided over the council of war, was responsible for fortifications and could decide alone on peace or war with the Indians. He directed the colony’s diplomacy with the Indian tribes (as with the English colonies of America) and thereby exerted his authority over the pays d’en haut and the territories of the west, which were studded with forts and trading-posts and traversed by Indians. It was he who appointed the commandants of the posts and forts, making of them agents of his Indian policy; it was he also who issued fur-trading licences (congés), but in conjunction with the intendant, because of the commercial implications; finally he had a certain jurisdiction over the mission territories, the missionaries too being in some sort agents of French policy [Jacques and Jean de Lamberville].
The only limitations imposed on the governor general, in the military and diplomatic spheres, might come to him from Versailles (which authorized him to decide alone on the building of stockaded forts, for example, but not on the building of stone forts), but also from the intendant, to the extent that the latter held absolute control over the colony’s finances, since all expenditures, for military, diplomatic, or other purposes, had to be determined and authorized by him. It is true that the governor shared in the preparation of the colony’s budget, which he submitted to the minister jointly with the intendant; but once this budget was accepted he was, for any expenditure not explicitly provided for, at the mercy of his powerful colleague … give or take 10,000 livres. To the governor, indeed, was turned over the revenue from the sale of fur-trading licences and from the leasing of posts; from this he was allowed to deduct, before paying it into the treasury, up to 10,000 livres for gratuities and charity.
In his specifically military duties the governor general was assisted by a general staff authorized to sit as a council of war, and constituted by the combined general staffs of each of the Canadian governments. Indeed the governor general had a military deputy, the local governor in each of the governments of Montreal [Louis-Hector de Callière] and Trois‑Rivières [Claude de Ramezay]; he himself filled the role of local governor for the government of Quebec. The governor general and each of the two local governors were flanked by a king’s lieutenant [Louis de La Porte de Louvigny; Claude-Michel
The governor general commanded both the colonial regular troops (troupes de la Marine) garrisoned in New France and the colonial militia, which was organized in its final form in 1669. In the 18th century the regular troops in Canada numbered 28 companies, each having at least 4 officers: a captain, a lieutenant, an ensign on the active list, and a second ensign. The main body of the troops was billeted in the government of Montreal, near the colony’s strategic points and the waterways leading to them. For its part the militia grouped all able-bodied male settlers from 16 to 60, except for military officers, law-officers, and officials. Under the command of the local staffs, the militia had its own cadres: each government had at its head a colonel, a major, and an adjutant (aide-major), and each parish provided at least one company, comprising a very variable number of militiamen, whose officers were a captain, a lieutenant, an ensign, and a sergeant; in the towns the companies were distributed by districts [René-Louis Chartier de Lotbinière]. Although he was general in chief of New France, the governor general did not have the power to appoint the officers of the general staff, or even, in the case of the regular troops, to grant promotions; he could only recommend to the minister and the king candidates for higher rank or for decorations (in particular for the prestigious cross of the order of Saint-Louis). As far as the militia was concerned, however, the right of appointment and promotion belonged to him exclusively.
As a result of his virtually exclusive jurisdiction over the posts of the pays d’en haut, the governor had some share with the intendant in the administration of justice (in addition to that which he already had in the granting of seigneuries). Indeed the commandants of these posts, who were appointed by the governor, rendered justice in the area of their jurisdiction. It was a rather rough and ready sort of military justice; appeals against it had to come before both the intendant, who was responsible for justice in the colony, and the governor, who authorized its exercise in the commissions which he issued to the commandants of distant posts. In the same way, because of the possible repercussions on relations with the Indians, the governor and the intendant heard together the Indians’ complaints and claims, resulting from thefts of which they might have been victims at the hands of Frenchmen.
If he had to share certain of his duties, particularly with the governor, the intendant, the third person in the colonial hierarchy – after the governor general and the bishop – was none the less the strongest man in New France by the number, extent, and importance of his powers. Appointed by the king and removable at his pleasure, he had the title of “intendant responsible for justice, public order, and finance,” to which was going to be added, for
Everything that was not within the exclusive jurisdiction of the governor general and the bishop came under the intendant alone, required his participation, or was carried out under his authority. To go back to the very terms of his commission, the duties of the intendant concerned the vast spheres of justice, public order, and finance. He had first of all to see that “good and prompt” justice was rendered to all without distinction; he therefore had to exercise constant supervision over tribunals, judges, and law-officers, and see to the execution of decrees, edicts, ordinances, and regulations. By virtue of this general duty and his special responsibilities, the intendant could either call before himself any case, civil or criminal, that was pending before the courts, or send back to a regular tribunal an affair referred to him, or again, revoke a sentence passed by the Conseil Souverain if he deemed it contrary to the interests of justice, or even on occasion depart from the habitual procedures. He did not, however, have the right to appoint judges and law-officers, whom he could remove only in quite exceptional circumstances and with the obligatory participation of the governor general. Nevertheless, he did appoint and could suspend the clerk of the marshalcy, process-servers, and notaries, as well as surveyors. He was himself the only competent judge in cases of crimes against the security of the state, in actions relating to public order, the levying of dues, smuggling, the fur trade or the king’s domain, and in all questions concerning the seigneurial regime, in respect to which he was the interpreter of the customary law. Appeal could be made against the intendant’s judgements only to the king’s council, the Conseil Souverain of Quebec being inferior to the intendant (who was moreover the real president of this tribunal; the governor was its honorary president). In summary cases, which he had the right to hear, the intendant’s judgement was without appeal.
Also under the intendant’s control was the very large sector concerned with the maintenance of public order, that is to say everything that concerned not only law and order but also in a general way the whole colonial administration. In New France administrative regulations were aimed principally at increasing the population, developing land holdings, and establishing trade and industry, all of these being sectors which were under the intendant’s jurisdiction, although the governor general normally countersigned ordinances on these subjects and the Conseil Souverain occasionally played a role in these matters with the intendant, accompanied or not by the governor. Breaches of regulations and ordinances concerned with public order came exclusively under the intendant, who was authorized to pronounce sentence in all cases.
In the sphere of finance the intendant’s authority was in practice absolute in the colony; only the governor general could, theoretically, oppose him in this area, and then only for extremely serious reasons. The intendant held the funds and could alone authorize even the smallest expenditures. Moreover, he had exclusive jurisdiction over the levying and collection of the dues in force in the colony, particularly those of the Domaine d’Occident in Canada (or king’s domain), over imposts (taxes), of which he controlled the receipt and disbursement (the king alone being able to order the tax itself), over the circulation of currency in the colony and over “card money” (playing cards used as currency to relieve the shortage of coin [see Jacques de Meulles]), which was countersigned by the governor general and by the comptroller of the Marine at Quebec. Likewise the intendant, as manager of the possessions of the crown, had jurisdiction over those of the distant posts which were carrying on trade on the king’s behalf. Since he was the only one holding the funds and authorizing their outlay, the intendant was alone entitled to give orders for public works (except in the case of fortifications, where the governor had to act with him) and to make purchases in the name of the state. In short the whole civil life of the colony, including its seigneurial life, was animated, directed, and controlled by the intendant.
To assist him in his duties the intendant appointed subdelegates, who were occasional rather than permanent officials, sometimes commissioned for very short periods (during a brief absence of the intendant for example), and having a mandate which could be very general [René-Louis Chartier] or restricted to one particular matter. Thus a councillor or notary could be appointed the intendant’s subdelegate with the sole purpose of settling a dispute, conducting an inquiry, or carrying out a precise task [François Genaple]. The number of these delegates could vary a great deal, according to contingencies. At Montreal, however, which was “the place in Canada where there were always the most troops,” the intendant was represented permanently by the commissary of the Marine [Clairambault d’Aigremont], who was his subdelegate by right. From 1733 on, the latter was a member of the Conseil Souverain in his own right, and could even preside over it in the intendant’s absence.
Under the intendant three groups of officials evolved: those of the “offices” of the Marine, those of the Domaine d’Occident, and finally the chief road officer and his subordinates. To the offices of the Marine were entrusted the king’s storehouses and the care of the provisions, ammunition, and other merchandise which were the property of the state. These offices were under the direction of the comptroller of the Marine [Clairambault d’Aigremont], who was responsible for the management and accounts of the king’s storehouses and who resided at Quebec. Under his orders were two staffs, one at Quebec and the other at Montreal, both made up of a keeper of stores, a treasurer, and writers (book-keepers), that is, some 30 officials. For his part the director of the Domaine d’Occident was entrusted with the administration of certain territories being exploited for the benefit of the king (the king’s domain, or the Tadoussac trading concession), and with the collection of certain dues, such as the levy of 25 per cent on beaver furs and of 10 per cent on moose hides, and the other levy of 10 per cent on wines, spirits, and tobacco. His staff included a comptroller, visitors (inspectors), a captain of the guards, and writers, that is, altogether (apart from the guards) fewer than 10 men. As for the chief road officer, he was in charge of the building and repair of roads and bridges, the alignment of houses in the towns, the upkeep of paved thoroughfares, in a word the system of roads, as his title indicates [Pierre Robinau de Bécancour]. He had clerks who assisted him or replaced him in case of absence [Genaple].
This two-headed administration, founded on a division of powers between the governor general and the intendant, was however embodied and as it were unified in the person of the militia captain, who at the level of the parish and the seigneury represented both the governor and the intendant, the military and the civil authorities. In reality only the governor had jurisdiction over him, but the intendant often entrusted him with the application, in the territory for which he was responsible, of certain regulations and ordinances, with the supervision and even the direction of road-building operations, etc. In this respect the militia captain, although a copyholder, was above the seigneur.
The militia captain’s civil role was nevertheless reduced in seigneuries provided with a court of justice: the intendant then instructed the officers of the tribunal to see to the execution of his ordinances. These minor courts were not without importance: if indeed the seigneury was the culmination, the focal point of the administration of the colony, it was at the same time the starting point for the administration of justice, which from jurisdiction to jurisdiction went right up to the king.