Legal Principles in French America

Sources

New France. In the early 1600s the North American interests of France lay chiefly in the hands of explorers like Samuel de Champlain and the Company of New France, which possessed a royal monopoly on the French North American (Canadian) fur trade. But New France was reorganized in the 1660s, an effort led by Louis XIV’s chief minister, Jean-Baptiste Colbert. It became a royal colony, with an appointed governor, an army, and a mandate to increase France’s economic profit from the fur trade. The principle at work was the same as in the English empire—the colonies existed to further the interests of the mother country.

Government. As in the Spanish colonies, power in New France was shared among a governor responsible for military and Indian matters, an intendant responsible for civil and local government, and a bishop who headed the Catholic Church. Unfortunately the arrangement caused problems and struggles within the government, especially between the church and the secular authorities. Compared to the organization of the English colonies, it was a model bureaucracy, and it was undemocratic—not a single French official was elected by the people.

Judicial System. The governor, intendant, bishop, and several others formed the Sovereign Council, seated at Quebec, which served as the highest court in New France. The judicial system was the responsibility of the intendant, who could handle many cases on his own. Most matters were handled by the local, seigneurial courts, while appeals were heard by royal courts at Montreal, Quebec, and Trois Rivières. Royal court decisions could be appealed to the Sovereign Council, and some wealthy individuals appealed these decisions all the way to the Conseil de Parties in Paris, thus giving the wealthy a significant advantage over less-prosperous litigants.

Practices. Lawyers were even less well-liked in France than in England, and New France outlawed lawyers altogether. The intendant was trained in law, but notaries handled most routine legal matters at the local level. In court people represented themselves, as typically occurred in the English colonies. Witnesses were paid for their appearances, the fee varying according to social rank. Though their testimony could be challenged, they could not be cross-examined.

The Accused. French law allowed the accused to be interrogated and under some circumstances even tortured, neither of which was allowed under English law. Torture in France usually entailed pouring water into the mouth of the accused, but French Canadians were more likely to use “torture boots”—wooden slats tied to the legs with wedges driven between the wood and the flesh. Three physicians were required to be in attendance, but this rule was not rigorously obeyed. Any confession obtained became invalid if not confirmed by the prisoner after he or she had recovered. The practice could be used only under strict circumstances, and only eight men are known to have been tortured.

Punishments. Executions were rare but could be inflicted through hanging, beheading (for nobles), or being broken on the rack. From 1665 until 1763 only eighty-five persons were executed. Hangings were not popular among the populace, and they were not nearly the public events they were in England and its colonies. Indeed, workers tried to avoid constructing the gallows or removing the corpse afterward. The stocks and lashing were infrequently used. Theft or breaking and entering might bring the punishment of banishment, branding, or service on a king’s galley. Branding with a fleur-de-lis was not only painful but also served to permanently identify a convicted criminal.

Sources

W. J. Eccles, The Canadian Frontier, 1534-1760, revised edition (Albuquerque: University of New Mexico Press, 1983);

Eccles, France in America (New York: Harper & Row, 1972).