The Administration of New France (cont.)
Until the end of the 17th century the right of haute, moyenne, et basse justice was granted fairly liberally to the seigneurs of the colony; subsequently this right was restricted to basse justice only, it being left to the royal jurisdictions to hear cases of any real importance. The seigneur possessing rights of justice was required to appoint law-officers on his lands to whom the intendant granted commissions. These seigneurial courts of justice bore different names, which do not however reflect any dissimilarity between them: there were seneschal’s courts, provost courts, bailiff’s courts, but in general one spoke rather of seigneurial (or subordinate) justice, or else of seigneurial jurisdictions. These courts of first instance were composed of a judge (called a “seneschal” [Jacques Barbel], a “provost,” a “bailiff” or a “seigneurial” judge, as the case might be), a seigneurial attorney [Hilaire Bernard], a clerk of court (who most often practised also as a notary [Paul Vachon]), and a process-server [Antoine-Olivier Quiniard]. These officials were paid by the seigneur, in whose name they dispensed justice. Appeals from the seigneurial courts came before the royal jurisdiction of the government to which they were answerable.
Indeed, in each of the three governments, Quebec, Trois‑Rivières, and Montreal, a royal court sat; it was called provost court at Quebec (between about 1680 and 1717 we also come across the expression “provost and admiralty court of Quebec”), and royal jurisdiction at Trois‑Rivières and Montreal. The provost court of Quebec, a court of first instance in civil and criminal matters, was also responsible for hearing cases concerning maritime trade (until 1719), and served as an appeal court for the seigneurial jurisdictions of the government. This court, created in 1667 by the Compagnie des Indes Occidentales, was in theory abolished in 1674 by the resignation of the company; nevertheless, it continued to sit [Louis-Théandre
These royal jurisdictions were made up of the following law-officers, appointed by the king (with the exception of the process-servers): a lieutenant general for civil and criminal affairs (royal judge) [René-Louis Chartier], assisted (except at Trois‑Rivières where this office did not exist) by a local lieutenant (deputy royal judge) from 1695 on at Quebec and from 1712 at Montreal [Paul Dupuy], a king’s attorney [Louis Boulduc], and a clerk of court [Pierre Rivet Cavelier] assisted by registry clerks and process-servers [Jean-Baptiste Pottier]. The royal notaries [Jacques Barbel], who were ancillary law-officers, were attached to these royal jurisdictions. In the absence of lawyers in the colony – where they were never permitted to practise their profession – notaries, clerks of court, process-servers, even ordinary private persons, were authorized to appear as practitioners before all the courts in New France and to represent parties and set out facts, but not to plead. These practitioners were not by virtue of this authority law-officers, and their remuneration was a matter of arrangement between them and the litigants whose interests they were espousing.
In 1677 the judicial machinery of the colony was equipped for criminal matters with a marshalcy having at its head a grand provost [Philippe
In addition to these royal jurisdictions, there still existed at Quebec a diocesan officiality, an ecclesiastical tribunal created by Bishop Laval in 1660 but not recognized officially by the state until 1684. This tribunal, of which the official (judge), promoter (attorney), and clerk of court [Jacques Barbel] were appointed by the bishop, was a court of first instance for civil and criminal cases in which an ecclesiastic or a religious was involved. Appeals from this ecclesiastical jurisdiction came before the Conseil Souverain.
The judicial organization of the colony was completed in 1719, when the admiralty court of Quebec sat for the first time; this court had been created two years earlier to lighten the load of the provost court of Quebec, which for many years had served as an admiralty court. This tribunal had judicial and administrative powers. It had to deal in the first instance, in civil and criminal affairs, with all cases concerned with maritime trade and with the Marine in general, and in time of war to decide on the validity of captures; furthermore, its officers had to ensure the maintenance of law and order in ports, docks, and harbours, regulate fishing, see to the salvaging and care of wreckage and derelict objects, and enforce observance of the laws and regulations concerning smuggling by sea. The officers of the admiralty court of Quebec, who were appointed by the grand admiral of France, in whose name they administered justice, and who were approved by the king, were three in number: a lieutenant general (judge) [Jean-Baptiste Couillard de Lespinay], an attorney [Nicolas-Gaspard
Crowning the whole judicial organization of the country was the Conseil Souverain. In the 18th century it pronounced judgement only in cases of appeal, and of its administrative rights it retained only those of registration and remonstrance; it still took part in the maintenance of law and order, but only in the intendant’s presence and so to speak on his express instructions. The number of councillors, which was five in 1663 in addition to the governor general, the vicar apostolic, and, after 1665, the intendant, was increased to seven in 1675 (these councillors being from then on appointed for life by the king). In 1703 the name of the council was changed to that of Conseil Supérieur, and the number of councillors increased to 12, one of them being an ecclesiastical councillor. With the governor, the bishops, and the intendants, the 12 councillors, the attorney general [Mathieu-Benoît Collet], and the clerk of court or secretary, the Conseil Supérieur therefore comprised 17 persons, to whom was added in 1733 the commissary of the Marine at Montreal. In 1742 the king gave seats on the council to four assessors, in theory law students who were appointed for three years, and who, except on very rare occasions, were present only in an advisory capacity. Thus composed, the Conseil Supérieur judged appeals from the royal jurisdictions, the admiralty court, and the officiality. Appeal could be made against its judgements only to the king’s council in France.
Such, in their elegant simplicity, were the administrative structures of New France. To complete the too brief description that we have given of them, it would have been necessary to analyse much more searchingly the way they operated, to evaluate their advantages and disadvantages, and especially to describe the spirit that inspired them. But the aim here was, on a modest scale, to reconstitute the framework within which moved so many persons whose careers are outlined in the early volumes of this dictionary. Indeed, in reading the biographies devoted to these persons the reader will see these administrative structures come to life, will discover their intentions and their purposes, and will appraise their results.
Directeur adjoint, Dictionnaire biographique du Canada/Dictionary of Canadian Biography; Directeur général, Les Presses de l’université Laval, Québec, Québec.
André Vachon, “The Administration of New France” in Dictionary of Canadian Biography, vol. 2. University of Toronto/Université Laval, revised edition, 1991, http://admin.biographi.ca/en/special.php?project_id=49&p=16.