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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 Th aSik-m^ The ADMimSTRATION OF THE Old Regime in Canada A THESIS SUBMITTEr TO THE FACULTY OF LAW OF MgGILL UNIVERSITY FOR THE DEGREE OF DOCTOR OF CIVIL LAW BY ROBERT STANLEY WEIR ADVOCATE AND BACHELOR OF CIVIL LAW (I88O) ♦f» ir 1898-1S97 \ ""* imm /yOO c J^^^ <=\y^ The Administration OF THE Old Regime in Canada A THESIS SUBMITTED TO THE FACULTY OF LAW- OF MCGILL UNIVERSITY FOR THE DEGREE OF DOCTOR OF CIVIL LA W BY ROBERT STANLEY WEIR ADVOCATE AND BACHELOR OF CIVIL LAW (1880) 1898-1897 '""''. y.iJt-'^Wj£ii:' iilMHRHBH it Subjects ami Authors upon which the candicf.ttc submits him- self for examination .■ the subject selected by him for special proficiency being Constitutional History and Law. International Law : Philliniore, Iiucrnalionni I,:iw. Dirnv Th. i .,„ r r. ■ ,• Roman Law . Ortolan, Inititmes of Justinian. Mackenzie. Roman Law. Constitutional History and Law : Dicey, The Law of the Constitution. Stiibbs, Constitutional History of England. Hearn, Government of Kngland Bagehot, English Constitution. Gneist, Constitution of England. Hallam, Constituiiona! History of England. G-irdiner, Constitution of England. M.iy, Democracy in Europe. Freeman. Growth of the English Conslitution. Mill, Representative Government. Bentham. Fragment of Government. Maine. Popular Government. Todd, Parliamentary Government in tlie British Colonies. May. Consiiiuuon of England. Constitution of Canada : HouMon, Con»litutional Documents. Criminal Law and Political Science : Stephens, History of the Criminal Law. Aristotle, Politics. Freeman, Comparative Politics. Rryce, American Commonwealth. Authorities cited in, or consulted for Thesis : Constitutional History of England. 3 vols. Stubbs. The Lawof theConMiiuiion : A. V. Dicey, The Expansion of England ; J. R. Seeley. Pioneers of New France: Francis Parkman. Old Rigime in Canada : do. do. Frontenac and New France under Louis XIV ; Francis P.ukman. The Old Rigime and the Revolution : Alexis de Tocqueville. Hisloiredu Droit Canadien : Kdmond Lareau Edits et Ordonnances, 3 vols. History of Canada.jS vols : William Kingsford Statutes of Lower Canada, vol. O. History of Canada : Robert Christie. Histo.re de la Colonic Francaise, 3 voli t L'Abbe Faillon. Jugements et Deliberations du Conseil Sou- verain. Consiitutional Documents ; Houston, Local Government in Canada : John George Bourinot. Papers on Quebec : Baron Mazires. Histcire de Montreal . : Doll er de Cassou, Repertoire de Jurisprudence: Dallo? Canadian Archives : Douglas Brymner, *' 'I he 'words constitution and government have the same f^ieaning, and the government, zvhich is the supreme authority in states, must be in the hands of one, or of a few, or of many. The true forms of government, therefore, are those in zvhich the one or t/i£ fezv, or the many, govern zvith a viczv to the common interest : but governments, zohich rule zvith a viezv to the private interest, zvhether of the vnc, or of the fezv, of of the many, are perversions. For citizens, if they are truly citizens, ought to participate in the advantages of a stated The Politics of Aiustotle, Book III. 7. Administration of the Old Regime IN CANADA. I European institutions in America— France at the beginuing of the ijtk Cent ury—Ue tat c est moi—The French Caua- dians as Britons— Administrative Law in England and in France—Edicts and Ordinances of the Old Regime. The growth of sochl and political institutions in America must always possess great fascination for the student of human affairs ; for there it is possible to trace the effect of the transplanting of European forms of government and ad- ministration, with such modifications as have been adopted of choice or necessity. Within certain limits, the introduction of the political forms and institutions of Europe into America, illustrates the tendencies that were then dominant in the older continent. It is easy, for instance, to trace in the constitutions of the United States, the conceptions of kingly power and tlie relations of parliament thereto, that were prevalent during the reign of George the Third, while the absolutism of Louis Quatorze. is nowhere more apparent than in the paternal government that was established in New E'rance. From this point of view, a special interest surrounds the Province of Quebec, a province which though greatly less in extent tlian the Canada that fell with Montcalm, includes the territory upon which the features of the Old Regime were most distinctly impressed. In those portions of the continent afterwards called the United States of America, the peculiar genius of Englishmen for self government, was tieveloped without the modifications that result when different races of "dissimilar political genius dwell side by silc. In the history of Now I'rancc, however, the student of political affairs meets a state of things altogether uiiiqu.\ He finds a territory and people controlled at great distance from another continent. Wnen the fortunes of war transfer the eminent domain to ani.thcr Euroi)ean [)ower this people still continue to occu[)y the land and to enjoy their own language, customs, laws, and religion. The conqueror, however, transplants certain of Ills oa'n peculiar political ideas ; and the spectacle is thus presented ot dual language, race, laws and institutions, existing side by side, and to- gether influencing the course of events. To pursue an enquiry into the whole subject of the relations between French and English systems of law and social order, would pr».)ve too wide for the limits of a thesis of moderate dimensions. One part onl)- of this field shall we attempt to survey that of Administrative Law in Canada during the time of the French Regime. "The physiognomy of a government "says De Tocqueville ** can best be judged in its colonies ; for there, its characteristic "' traits usually appear larger and more distinct. When I wish " to discover the spirit and the vices of the }rovernment of " Louis XIV, I must go to Canada." It is often instructive, however, to reverse this hi-,t.)rical process. The condition of France at the beojnnint,' of the seventeenth century, when the colonization of New France was seriously contemplated, presented in respect of its political constitution, the charac- teristics of feudal subordination unmodified by any strong inclinations towards popular freedom. France, in common with the three other great states of Western Christendom- England, Spain, and Germany— owed the leading principles which mark her constitutional history, to her Teutonic origin. These principles were developed in these countries, in various ways and with different results. In England, the dominant tendency towanls popula-- freedom was never long repressed, but ; • ertcd iiself among nobles and people alike, with unswerving persistence. The Feudal System, while permitting the king to control his barons, was so related to the people, that baronr and people could unite to break the power of tyrannous, kings. In France, however, the power of the feudatories was gradually absorbed by the kings. The increase of power was turned to the strengthening of administrative government in the personal interest of the possessor, despot succeeding despot, until the catastrophe of the Revolution was reached.* It is at the period when the kingly power in France is approaching its zenith, that the beginning of civil adminis- tration in New France may be traced. Above all rulers of modern times, Louis XIV was the embodiment of the mon- *Const, Hist, of England, Stubbs., vol. i, p. 3. 7 archical idea. The famous words 'ascribed to hirr- " L'etat, cest mot," were probi^bly never uttered ; but they perfectly express his spirit. " It h God's will," lie wrote in 1666, " that whoever is born a subject, should not reason but obey."* '• Control by France ceased, however, before the red days of the Revolution dawned. Wolfe's victory antedated the death of Marie Antoinette by thirty years. The efre':t that the _ Revolution might have had upon Canada, supposing that she had remained a colony of France, and the extent to which it would have relieved the colony from a long tutelage, can only be surmised. Popular liberty, ho.vever, has been attained by the descen- dants of France in the New World not less securely than by those who now sustain republican institutions in the older land. The rights and privileges of the French Canadian arc co-extensive v.-ith the rights and privileges of every Briton, and have been attained, not by any vast social upheaval, but through the political wisdom of the race who emerged victorious, in the struggle that was tern.inated by the capitu- lation at Montreal. The French colonists of Canada, '.vheti they became the subjects cf Britain, stepped forth invo a liberty scarcely dreamed of previously. The readiness with which they availed themselves of the privileges stipulated for and conceded, the aptitude which they displayed in apprec- ating political liberty and in comprehending the scope and possibilities of representative government, proved that the innate spirit of freedom, though long repressed by a watchful autocracy, had not been destroyed. ♦Cited by Parkinan, Old Ri^gime, p. 172. 8 The term Administrative Law should not be used, without explanation or definition, inasmuch as it conveys in France and other European countries, a meaning very different from that which prevails in Enirland, and in those countries whose constitutions are derived from the laws of England. Mr, Dicey, in his work on the Law of the Constitution, has enlarged upon the distinction to which we refer. IL points out (what students of the British Constitution h.ive not always remarked) that the principles which lie at the roots- of administrative law in England, are not distinguishable from those which are at the roots of the whole system of British law— that in England the term Administrative Law is entirely one of convenience, and by no means fre- quentl> used. There is not, in Britain, one law for the citizen and another law fur the official. The latter may have special duties and functions, for the performance of which he is answerable, but he enjoys no immunities from the consequences of illegal acts. He cannot plead the authority of the Crown, or of his superior, for an illegal act. The logical corollary of the maxim that "The King can do no wroig," is, that some other person is legally and individually responsible, for every act done in the King's n^me. Under the French system, on the other hund, no servant of the government, who, without any malicious or corrupt motive, executes the orders of his superiors, is civilly res- ponsible for his conduct. For the breach of official discipline he is, it may be safely assumed, readily punishable in some form cr another, but he nevertheless enjo)s a very large amount of protection against legal proceedings for wrongs ■done to private citizens. The party wronged by an official in France, must seek relief, not from the judges of the land, but from some official Court. Before such a Court, the et Louis XIII is king. .Authority is still delegate' I but it is delegated to a powerful and 'oalthy company. The petty companies and traders of the past are swept awa)-. A broad and comprehensive plan of ■administration is projected. A hundred associates confederate /ortrade and colonization and religion; and a Governor who is to anics without derogating from their status or privileges. With specious craft the hope of gain through trade was not set prominently foiward in ti.e charters of the time. Foremost among the objects of these companies, in France and Spain at least, was the glory of God, and the conversion of the heathen to the Roman Catholic and Apostolic faith. Enterprises that Heaven was thus sure to approve, and that promised, in addition, the wealth of earth, could not but become enormously popular. Accordingly, we meet in our survey of Canadian historj', the great Company of the Hundred Associates, and thu still greater company of the West Indies contemporaneous with the East India Com- pany, of both of which Louis himself and Colbert his minister* were shareholders and promoters. ft The trading companies, with special royal charters and administrative powers, that made Canada the field of exclusive trade operatioiis were thus four in number : The Company of New France, The West India Company, the Company of Canada, and The Compan}- of the West, better known as La Compacrnie des Iiides.* It will be observed that we do not include the irregniar trading companies that preceded the establishment of the Company of New France, for the reason that those companies possessed no administrative powers and derived their authority from viceroys only, *Vide Edits et Oidonnances II. 441. III. Charter of the Company of New France —Analysis, of its provisions — Its administration — Concession of the Island of Montreal — De Maissonncnve — Abandonment of its charter by the company of Nexv France. The charter of the Company of the Hundred Associates is so important and so interesting a document and to the ordinary reader so difficult of access, that no apology need be made for presenting a translation of its preamble at least, and a detailed account of its provisions. It reveals in many particu- lars the condition of things which it sought to remedy, and is also valuable as indicating the colonial spirit of France an the seventeenth century. The preamble is as follows : — " Deed establishing the Company of One Hundred Assoc- iates for trade with Canada, containing the articles (granted io the said company by the Cardiial Richelieu on the 28th April, 1867." " The King, having the same desire as the late King Henry the Great, his fathn- of glorious memory, to explore and dis- cover the countries, lands, and territories of New France •called Canada, and a place suitable for the establishment of a colony, so as to endeavour, with the divine aid, to bring the nations who inhabit them to the knowledge of the true God, .and to cause them to be taught and instructed in the Catholic, Apostolic and Roman faith and religion ; Monscigneur the Cardinal Richelieu, grand master, chief and general super- ad intendant of navigation and commerce in France, being obliged by the duties of his office to bring to success the pious wishes and designs of his said royal masters, hath formed the opinion that the only means of bringing those nations to the knowledge of the true God. is to people the said country with native French Catholics, who by their example may incline those nations to the Christian religio.i. and a civilized life, and even to the establishme- t there of the re v^al authority ; also to derive from the said newly discovered Jauds. some profitable trade for the advantage of the Kings • subjects ; Nevertheless, those to whom this task has beer conHded, have had so little interest in pcrfonning it. that up to the present only one settlement has been made there, wherein are maintained ordinarily forty or fifty Frenchmen,' rather for the affairs of the traders than for »hc welfare and ^advantagc of the service of the king of tl)e country- , and so poorly iiave these been assisted up to the present, that the I'ing has received numerous complaints in council ; and the cultivation of the land has been so little a Ivanced, that if there had been any neglect in sending each year Hour and other necessaries for this small number of men, they ^vould have died of starvation, r.ot having wherewith to aiourish themselves for a single month alter the time that the ships are accustomed to arrive there, every year. " Those also who had up to the present obtained for them- selves the exclusive trade of the country, have had so little ability or wish to pc.ple or cultivate it. that in the fifteen 3'ears which was the te-m of their charter, they diwn liveli- hood, they were not allowed to assist their companions or nny who had need, but were obliged to hand it to those who- had the charter. " These disorders having reached this stage, Monseigneur the Cardinal believed that they demanded attention, and that in removing them, it was right to follow the king's intention, so that, by securing the conversion of those nations and the establishment of a powerful colony in this province, New France might be acquired throughout its whole extent, once for all, without danger of the enemies of the Crown snatching it from the French, as might happen if precaution were not taken. " For this purpose, having examined numerous proposals, which did not however provide for the peopling of the country, and having revoked the articles heretofore granted to William of Caen und his associates, as contrary to the intentions of the king, Monseigneur the Cardinal has entrusted Sieurs de Rocqucmont, Houel, Lataignant, Uablon, Duchesne et Castillon to form a strong company and for this purpose to meet together, to discuss the subject and propose the 28 deta.ls thereof. VViuch having been done, they agreed with Monscigneur the Cardinal to form a company of One Hund- red Associates and to do their utmost to people New France •called Canada, according to the articles hereinafter ment cn- -ed." % article i. .1,. "Cent A.socfe " „„d„,„„, ,„ ,^^„,_ pon dun,,, the >.ca.. ms. two or three hundred ,nen of all t„.de.,, ^nd clunnjj the fifteen years followinjj to inere.se th,,, number to four thousand of both sexes, with the neees saries of life for three years. By article ii. it was forbidden to introduce foreigner, or others than French Catholics into the colony By article iii. it was agreed, that in each settlement ere should be at least three priests for the conversion : the savages and the consolation of the colonists, these eccle s.ast.cs to be maintained and provided for during the said f'"T >'"V"""'^ °'""" '° "" ^--P-'y. of giving to ■the clergy sufficient cleared ground for their subsistence ArtK'o ,v. conveyed to the company i„ perpetuity the who e of New France, with the coasts extending from Flor da northwards to the arctic circle and from Newfoundla'd to the sources of .he St Law.ence and its tributary waters The Company were given complete powers for .rilit.rv cnch colonists born in the colon)-, and to converted and baptized savages. Article xviii. extend the delays accorded for the fulfilment of stipulations, in the event of civil or other war. By article xix. the king reserved his right to execute the foregoing articles and by article x.x. the company was authorized ta make by-laws and regulations, which were to be submitted to- the king in council for approval. 30 S ch .ere .he prov,-.,i„„s of ,hi, historic document. A .rad,„B company „,s no. feudal proprietor of all .he domau,. of france in Nor.h America, The Kin, heap ^ favour., upon „ a., has been .seen, reserving only ftal,, „1 homage,, he appointments of judicial officers, and ,he con firma.,o„„f pa,en.s to nobiH.y. The a.s.,ocia.es, of ,vho„„ CLamplan, was one, en.ered upon .heir func.ions .,7" capital of ,300.000 livrcs.* The ad,„inis,ra.ion of this n,„K„i/5cent enterprise the Company of ^ ,.-„„,,, „,,, ,„,^,.,^^, ^^. ^^^^^P^_^^ J fa.1 re. The first ,ra„.,por.s of men and provision, .ere captured by Louis Kertk, Quebec itself .as .aken. and for hree years passed under .he domain of England, Louis Ker.k msalhng um.self as governor. Ry ,he ,rea,y ofS.. Gern.ain- e.,-Laye, ho.ever, signed March 2!), l(i;!2, Quebec through *e diplomacy of Richelieu was res.ored .o France The company of a hundred par.ners resumed their adminis.ra.ion bu. proved .holly unable .„ control affairs at ,he great' distance .hich separated France and Canada. After mucl- expendnure and loss .hey commuted .heir e.-cclusive privi 7ZZ'l' ™'°"' "" ""'"""' '" '^"^P' -' — ' payment of 1000 beaver skin.s, but do no. seem .o have had any represen.a.,ve in ,he colony .o see .ha, .he bargain .as earned out .ith fidelity. They relied upon the governor To do th,s but the governor .as disinclined to assume the .ask Iw,sh .ro,e Argenson, » .hey would send somebody .„ ook after .hen- affairs here. , .„nld gladly give him .he same lodging and entertainment as myself." ♦Pioneers of New France, Parkman p. 432. 3» About the time of this commutation, in 1(>47, the direction of the fur treicle was placed in the hands of a council composed of the Governor, the Superior of the Jesuits and others ; subsctiuentl)' another council was estabhshcd without the consent of the company, and in league with prominent merchants so engrossed the trade of the colony, that the inhabitants at large prcjfited nothing by the cession of the ■company's privileges. A trading oligarchy thus grew up. Finally, in IGOO, the company sent out from France, Pcronne Dumesnil, an advocate of aggre ;sive and tenacious character, with powers as controller.intendant, and judge, over their affairs. His advent caused great commotion. At times his life was in danger. Those who had enjoyed the mono[)olie3 of trade resented his interference and refused to acknowledge his authority To such length did heat and passion carry away certain of the disputants, that Dumesnil' sson. Peronne de Touche, was set upon one day and so grievously assaulted that in a few days he died. 'At this time "says Parkman " Quebec was a little hell of discord." The Council which, from 1647 to 16()3, assisted the Governor (who does not however seem to have been bound to accept its advice) was afterwards referred to as " Lancien conseil" It was established as the re.;ult of complaints and petitions. It consisted of the Governor, the Bishop or the Superior of the Jesuits, and the Governor of Montreal. The Council took cognizance of the affairs of the colony generally. The Commander of the Fleet, and the Syndics of the three towns had the right of audience. An audit of accounts was estabiishci. Officials held office for three years. The inhabitants were granted freedom to trade, but the furs had to be brought to 3»' riior t its iseil" tions. lor of )uncil The owns shci. were ht to the public stores to be received at a standard price. A charpe of 25,000 livres was established on the trade, for the fjovernors and {garrisons of Quebec and Three Rivers, and 10,000 livres for the garrison at Montreal. No stranpjcrs could journey to Canada, but by the company's ships. We thus perceive the exclusive and prohibitive character of the company's adminis- tration and are not surprised to learn that progress was slow. " L'Ancien ConseiV kept registers, but it is not known where they have been deposited. Mor are the Rei^istres Civile^ of the Pfevotc de Qiu'bec yet available for public use. The five governors who administered affairs in Canada between the death of Champlain and the establishment of the Sovereign Council, developed no new policy in the colony. Tliey were the representatives of the Company of New France, with power over life and property, but could follow n.) line of conduct not prescribed for them. M. de Montmagny who succeeded Champlain, lost no time in repairing and strengthening the fort at Quebec. lie also traced a plan of Quebec, marking out the streets according to a system. A pillory was erected, and served as well for the publication of written notices, and proclamations to the inhabitant.s. This governor also enlarged the fort at Three Rivers, planted by Champlain. Up to this time Quebec had been nothing more than a mission and a religious station, but under the governors Ar- genson and Avaugour, attempts were made to separate civil and religious functions. Laval the Apostolic Vicar, con- tended strenuously with the civil rulers upon points of prece- dence and authority. Argenson resisted the doctrine, which he attributed to Laval, that ' a Bishop ca.i do what he likes." 33 Avaugour no less than his predecessor failed to co-operate harmoniously with the rcli|^ious head of the colon)'. Trade disputes and the inveterate habit of his councillors to peculate, led him in l(j02 to dissolve and reconstruct his Council — ati indication of the gubernatorial powers of the day. In the same year, he was himself recalled at the instance^ it is said, of Laval, and his successor I)c Mczy became the ofiRcial head of re-constituted civil government. While Montina^ny was governor, an important separation of administr.itivc [lowers was effected by the establishment of a colony at Montreal. The cit)' of Montreal traces its- legal creation to the 17th December Ifi-tO, on which date the Company of New T'rance made a formal concession to Pierre Chevrier and Roger de la Dauversicre of the western part of the island, " entre le lac Saint-Pierre et le \ar Saint-Louis, X " prendre la dite partie dc I'isle a la pointe qui regardc le " liord-est, tirant en toute sa largeur vers le sud-oust, jusqu'a " la Montagne dc Montreal qui a doime le nom a la dite isle " et par dela icelle montagne encore quatres lieues francaises " ou environ et jusqu'a I'cmbouchure du petit ruisseau qui " est dans la dite Isle a la dite espace de quatre lieues ou " environ, sc dcchargant c':ns le canal qui separe la dite Isle d'unc autre isle appel e Cisle de J6sus."* The company of New France forbade the cessionaires to engage in the fur trade beyond what was necessary for the personal use of the local colony, unless the skins were handed over to the agents of the company at the price fixed by the Company. *Edits et Orilunnances, I. p, .:o. 34 The company also rcscrvoil its riglu to build a fort on the «' mountain at Montreal. " and to a specified area round about such fort for the use of the garrison . a rif^ht which itii posterity are doubtl'.ss grateful the company did not avail itself of The company also retained its ri^dits to fealty and ho.nage as seigneurs ; acknowledgement thereof to be made at the fort St, Louis at (Juebec. The mutation-fee was fixed at one piece of gold, graven with the figure of Xew France as shown or, the Company's seal. This concession was ratified by Royal Edict on the 13th February 1(344. two years after Maisonneuve had taken possession of it* The Company of New l-rance on the 2lst April, 1659, made a cession of the remainder of the islanrl of Moi.treaV, to the Company of Montreal.f The editors of our Edits a Onhnnances erroneously des- cribe the two conveyances above mentioned, as havit)g been made to the Seminary of Montreal ; but the title of the Seminary dates from the Oth of March 1(508. when a deed of donation was executed in their favour by the original ces- sionaires.:^ Dc Maisonneuve was appointed governor of the colony at Montreal by the King, upon nomination by the inhabitants of Montreal. The privilege of nominating the governor was granted by Louis XIV in ratifying the concession. In the deed of ratification. Louis refers to Montreal "dont les terres *Ibi.l. p. 24. fibid. tibid. P 91. il-. " sont les plus fert'les et mieux temperces ; ctpour faire vivre " ies habitants en paix, police, et concordc, ihhis lour pcrmet- " tons d'y mettre tel capitaine ou gouverncur particulier " qu'ils nous voudiont nommer." The a{)pointmcnt was not for any fixed ternn, while the rule for the term of the Gover- nors at Quebec was three years.* De Maisonneuve thus saw several governors come and go while he remained undisturbed at the head of the colony at Montreal. The distance between Montreal and Quebec also made him virtually independent of his nominal super'or. One result of this was that a certain jealous rivalry grew up between the two towns. One governor endeavoured to compel the Montrealists to trade with Quebec alone mstead of directly with France, but this was not sanctioned by the company. Some soldiers who fired a feu de joie in honour of de Maisonneuve were imprisoned by order of the governor. De Mezy, when the Sovereign Council was appointed in 1663, removed de Maisonneuve from office, and immediately re-appointed him, to show that whereas formerly de Maison- neuve owed his position to the Company, he now owed it to the governor-general. De Maisonneuve administered local affairs at Ville Marie, nominally subject to the governor at Quebec, but practically independent. He promulgated ordinances for the local welfare. Ten of these have been preserved ; four relating to the sale of liquor, three to the defences of the town, the others to the erection of a church, and the administration of justice. In 1068, the Sovereign Council assumed control of the I \ I ■""De Montmagny however was governor for twelve years ; his term being thrice renewed. ,, \- ' i administration of justice in Montreal. This was resented by de Maisonneuve, who, in 16G0, called a mcetin<; of the inhabi- tants to elect five judges, four of whom, in accordance with one of the ordinances, were to make ' police " regulations. For a time there were rival jurisdictions. Talon, the intendant, however, restored its local rights to Montreal.* In 1G50 the Company of New France ceded all its rights to the inhabitants of the new colony, in consideration of the latter assuming the expenses of main*;aining the civic and religious administration. The Company reserved only its rights in Acadie, Miscou, and Cap Breton. Three years later the Compaii)- abandoned its charter, and dissolved itself by formal act on the 2-l.th February, 1063, at the request or command of Louis.f The associates humbly submitted to his majesty's sense of justice and equity for such recompense as, in view of their losses, it might please him to bestow. In accepting the company's demission, however, the king was silent on the subject of recompense, and expressed his regret at the weak condition of the colony and com- pany. At this time, under the guidance of his great minister Colbert, he had other plans for the administration of the colony. In the month of April following, the Sovereign Council was established by royal edict (April, 16G;i). * Kingsford, vol. 1, p. 310. tEdits et Ordonnances, vol. I, p. 31. 37 IV. The West India Compntiy — lis adinini!.tyativc f-on'cr^ -The Company of Canada — La Coiiipag)iie d^ Occident— I he Mississ- ippi Scheme — La Conipagtiic des hides — Trade restiictions and monopolies. The creation of the Sovereign Council was only part of a far-reaching scheme that Louis had planned for New France. About a year afterwards, on May 24th,l(3()4, the King signed an edict creating the West India Company {Conipag,-'e di. hides Occidentales.)* Not Canada alone was included withui the scope of this company'.s operations. Western Africa, from Cape Verd to the Cape of Good Hope, South America, between the rivers Amazon and Orinoco, Cayenne and the A ntilles were also granted to it, with resci vations only of fealty and homage. A monopoly of trade was given for forty years. The trading vessels and cargoes of all others were subject to confiscation. It was endowed with sovereign powers for armament, defence and government, throughout its wide domain. As regards civil and judicial administration, the enactments of the edict were as fc^llows : — - xxxi. " Pourra la dite comi)agnie comrnc seigneurs haut- '' justiciers de tout les dits pays, etablir des juges et officiers " partout ou besoin sera, et ou ellc trouvera a propos de les " deposer et dcstituer, quand bon lui semblcra, Icsqucls con- " naitronL de toutes affaires de justice, police, commerce^ '■ navigatio- tant civiles cjue criminelles ; et ou sera besoin " d etablir des Conseils Souverains, les officiers dont ils seront ♦Edits et Ordonnances, 1, p. 40, 38 IS f " composes, nous seront nomme et prdsentes par les directcurs " generaux de la dite compagnic ; et sur Ics ditcs nominations " les provisions seront expcdid-s." xxxiii. " Seront les ji'ges ctablis en tous les dits licux •' tenus de juger suivant les lois et ordonnances du royaume, •" et les officiers de suivre et con former a la coutume de la " prevote et vicomte de Paris, suivant laquclle les habitants *' pourront contracter sans que Ton y puisse introduire aucune " coutume pour ^viter la diversite." The company was a'so endowed by its charter with seigneurial rights over all the lands conveyed to it, and could sell or otherwise bestow fiefs at pleasure (Art xxii, xxiii.) It was authorized to establish governors wherever desired, to wage war and conclude treaties of peace or alliance with the peoples in their territories, subject to the King's approval (Art. xxxix.) On the ISth August 1666, M de la Bourroys, agent general of the comp^.r.y, presented to th*^ Marquis de Tracy the lieutenant general, a petition containing thirty-one articles relating to the rights and claims of this great company'.* It was asked that the company be recognized as seigneurs of the countr)- ; that its right to name the officers of the Sovereign Council, judges, and other officials, be admitted ; that the agent-general of the company be admitted to the Council and have precedence over other councillors. These claims were admitted and the petition, with de Tracy's mar- ginal observations, was enregistered. M. T. uvret de Mcsnic *Edits et Ordonnance:. Vol. I, p. 51. 39 was appointed attorney-general at Quebec, and M. Chartier lieutenant with jurisdiction in matters civil and criminal. The West India Company was the creation of an exalted king and an ambitious minister at the summit of their power. France at the middle of the seventeenth century led the world in cnluiii:il cMitcrprise. Holland had preceded her, having wrested colonies on all seas from Spain. England in turn was to wrest colon -al supremacy frim P^'ance. ]>ut meantime Colbert was guiding France into a new path. The stimulus of international rivalry led him to devote his energies to promoting the increase of trade. The seventeenth century^ however, had not discovered that trade could only be devel- oped by waiting upon the wants of mankind. Its method was to get possession of some rich tract in the New Worlds and to exploit it under restrictions and exclusive supervision, Louis and his minister, treated Canada, not as they treated their own subjects in France but much as one would have treated a conquered people, bi..ding her with rigid rules and restraining all independence of action. The method of governing by a chartered companj*, bor- rowed from the Dutch, was doomed to failure. The colony was a ver-table prey to the West India Company. Nobody but the company had the right to bring in the necessaries of life, and nobody but the company could exercise the traffic which alone could enable the colonists to pay for these neces- saries. Moreover, the supplies were insufficient and the prices exorbitant.* The Canadian merchants remonstrated. Under pressure, the company gave up its monopoly, reserving the right to levy one-fourth of the beaver skins and one 111 *Parkman: Old Regime, p. 175. 40 tenth of the moose skins ; it also reserved the entire trade of the extensive Tadousac district, but relieved the colony of the obligation to pay 1000 beaver skins annually.* Still, this did not prevent continued disaster. The West India Company within ten years lost 3,528,000 livres, besides blighting all the colonirs placed under its control. Finally in December, 1674, its charter was revoked and its enormous privileges reverted to the Crown of France. Colbert's great company had proved a gigantic failure. On the 31st May, 1701, the king of France, approved, by edict, thirty regulations drawn up by sixty-three colonists of Canada, including the Governor de Callicre, the Intendant Champigny and members of the council for the formation of a beaver company, to be called the COMi'ANV OF CANAUA.'f The beaver trade had fallen into frightful disorganization. One, Oudiette, was the collector or fermicr of the king's i..;- post.s. He had paid the Crown 350,000 livres for the privi- lege. He had the exclusive right of transporting the beaver skins to France, but was compelled to purchase ail that the colonists delivered. The market soon became glutt'^d and Odiette was a bankrupt. Other farmers of the revenue took his place with like results. Their bills of exchange were un- paid and Canada was filled with distress and consternation. The Company of Canada was an attempt to .solve the difficulty. How it succeeded may be surmised from the Kith regulation, which compelled every trader in Canada, under paiii. of entire exclusion from trade, to become a shareholder. A fashion of small hats, is said to have augmented the difficulty * Ed-ts et Ordonnances, I, p. 6o. + Edits et Ordonnances, I, p. 280. 41 arising from the surfeit of beavers in the market. At all events, the attempt to promote trade without regard to supply and demand resulted in collapse. Another company, com- posed of Aubcrt and others, was organized in 1707.* No trader was allowed to keep a beaver skin in his possession, longer than forty-eight hours, and the company, like its pre- decessor, was to receive it and pay for it by written promises. Again the market was glutted and the promises of payment dishonourefl, confusion and distress ensuing. In 1717 another company, magm'ficent in its purview, was organized. It was styled La CoMFAGNiK D'OcciDENT. Its charter was most elaborate, comprising fifty-six articles.^ The developm^iit of Louisiana was its principal object, and the references to Canada are sli^^ht. The government at Paris declared that it would regulate, according to the demands of trade, the quantities of beaver skins that the company would be obliged to receive, and the prices it would have to pay. In the following year, 11th July 1718, an arret was passed, requiring the delivery of all beaver skins captured, to the company at its sto»"es, and forbidding trade with the colonists of New England — a prohibition that is frequently met with in the edicts of the old regime. This Company of the West was promoted by none other than the celebrated John Law. It constituted a leading feature of the notorious Mississippi Scheme, destined soon to collapse with ruin to thousands. Canadians may learn with surprise, what is now for the first time pointed out, that the charter of this ill-starred enterprise forms part of their own archives. * Edits et Ordonnances, I, p. 302. t Ibid, p. 377- 42 From an arret, of June 1719, we learn that the Compagnie ^Occident was .succeeded in Canada by La Compacjnie DKS Indes, atid under this name it was known in Canada, it exercised all the priviiee "4,1, i- v. ^ "' administration had' been Ij! l^^'^ "''• "^ ..nprofitable for the colony. Lo /:; ,'^°"'°'"^ """ Clearly that a change wa. Len.: They LT t'hT ^^^ convinced of this, in that iAtf>4 r -411.- ^*m'i I " passagers ct autres auxqucls nous voulons et entendorib *' que prompte ct brcvc justice soit rcnduc ; et pour jouir des *' dites charges par ccux qui en seront pourvus, aux hon- *' ncurs, pouvoir, autorites, preeminences, privilege-set liberty " aux dites charges appartcnants, et aux gages qui leur *' seront ordotuics par I'etat que nous et feront expcdier, '' ' .ns que les officiers du dit conseil souverain puissent " exercer autres offices, avoir gages ni recevoir presents, ou " pension de qui que ce soit que ceux qui leur seront par ** nous ordonnes, sans notre permission. " Si donnons en mandement aux Sieurs De Mezy gou- " verneur, De Laval eveque de Petree ou premier pretre *' qui sera sur les lieux, que notre present edit ils aient k " cxecuter et faire cxccutcr, pour le choix par eux fai* -i '• dits conseillers, notre procureur et grcffier, et iceux a. " bles, Ic fairc publier et enregistrer de point en point selon " sa forme ct teneur, et le contenu en icelui faire garder et " observer, nonobstant tous empechements, oppositions ou " appellations quelconques, dont si aucuns interviennent nous " nous en sommes reserves la conaissance, et icelle renvoyee " et renvoyons au dit conseil de la Nouvelle-Francc, et a " cet efifet interdite et defendue a toutes nos autres cours et " juges ; et parceque du dit present edit Ton pourra avoir " besoin en plusieurs et divers endroits du dit pays : *' Voulons qu'aux copies collationnees par le greffier du dit *' conseil souverain foi soit ajoutee comme a I'original, " scelles neanmoins du cachet de nos armes, ainsi que toutes " les autres expeditions qui seront decernees par le dit con- *' seil. Mandons en outre a tous justiciers, officiers, habitants 48 " du lilt pays, passagors et autres tie deforcr et obcir aux *' arrets qui scront reiuliis par uotre dit conscil souvcrain " sans diiriciiltd."* An ATct of date Juno 5th, IG75, confirnicd the edict which created the Sovereign Council, and increased the number of the councillors to seven. The king himself named ' hcse instead of allowing the bishop and governor to do so as formerly. The king also declared his intention of sending to New France an Intendant of Justice, Police and Finance. The grand vicar was authorized to take the bishop's place in the council, in the absence of the bishop from the country ; and the intendant was declared to have the third place in the council, and to ful the same functions as the first president of the courts in France. He accordingly presided at the sessions, recorded the votes, pronounced judgments and convoked special meetingsf ; although the presidence was a matter of violent dispute between Frontcnac and Duches- neau. Notwithstanding the arret Duchesneau's commis- sion authorized him to preside only in the absence of the governor. The king finally decided that the arret should prevail. By another arret dated June 16, 1703, the king added five to the number of the council thus making it twelve. Among these was now added " un conseiller clerc, lequel etant toujours en fonctions, sera plus instruit et plus a portee de veiller h la conservation des droits de I'Eglise, soit en la presence du dit sieur eveque, soit en son absence, pendant •*Ibi{l. tibid 1., p. 83. 49 ■if :■ 'i iaquelle le dit grand vicaire, peu instruit des lois et des usages d'j dit conseil, ne pourralt pas donner ses soins avec le Kieme sncces qu'un conseiller clerc." * The council was also enjoined to administer justice "en ^a forme portee par les ordonnances de notre royaume, et jouir les dits conseillers, tant laique que cl re, des memes droits et preseances entic eux dont jouissent les conseillers de notrc cour de parlement de Paris, ei des gages et pt;n- sions a eux attribues." One year later 18th June, 1704 the king being informed that the methods cf procedure followed in France were not observed in the colon}', issued another ordinance by which he required, for the future, that in causes submitted to the council the attorney general must announce his pretensions " de vive voix" anil that thereafter the president and judges must rise and deliberate together so that the attorney general should not become aware of their opinions ; also that in cases submitted in writing, the attorney-general must reduce his opinions to writing; upon which issue would be joined. The judges were required to read the pleadings before pro- nouncing judgment but th^ attorney general had to retire during the delivery of the judgment. The king also ordered that " si dans les proces par ecrit on il s'agira d'affaires craves le dit procureur general demande d'etre entendu, il lui sera permis d'entrer dans la chambre du conseil et d'y donner ses conclusions de vive voix; niais qu'aussitot apres les avoir donnees il se retirera et les juges opineront sans qu'il soit present." f * Ibid. p. 299. t Ibid, p. 301. SO I Finally, in 1742, the Governor and Intendant were author- ized to name four " assessors " or commissioners, for the purpose of determining questions of fact. In cases in which they had not acted as commissioners, they were authorized to sit to complete the required number of Judges.* Although the appointment of councillors was at first nom- inally made by the Governor and the .Bishop jointly, yet as the former knew nobody in the colony, the councillors were actually named by de Laval. The first council consisted of Jean Bourdon, attorney-general ; Rouer de Villeray, Juche- reau de la Fert<^, Racette d'Auteuil, Le Gardeur de Tilly and Matthieu Damours, councillors, and Peuvret dc Mesnu, secre- tary. A royal commissioner, one Gaudais Dupont, instructed to inquire into the state of tlia colony, and to take possession in the name of the king of the entire colony, which had been abandoned by the company, also sat with the council as substitute for the Intendant who had not yet arrived. f Although large administrative powers were thus granted to the Sovereign Council, the king by no means abandoned ad- ministrative control over governor, intendant, council and colony, as many an edict from the king's council of state tes- tified. The name of the council itself was changed to Superior Council in 1708. The Sovereign Council was thus constituted a couit, with criminal and civil jurisdictii^n, the procedure of tlic Pjulia- ment of Paris being followed. It was also a board of trade finance, and public order, and could name local judges and court officials, A perusal of the published volumes of its ♦ Ibid p. 56r. tParkuian, Old Regime, p. 1.36. 5« ) deliberations shows that the council's labours were largely- judicial ; at first as a court of original jurisdiction ; later as a court of appeal. It had no powers with regard to public policy ; it could not decide as to whether trade should be free to follow all markets ; it could not establish a mint or currency ; it was required to adjudicate according to the laws and ordinances of the kingdom, which the king alone could change. • The edict w'.iich constituted the Sovereign Council reveals to us the administrative sy.stem under which Canada was governed from l')(!3, until the close of the French regime. If we wish to learn how New France was governed we must 'therefore study the records of the Sovereign Council, which not only enregistered its own decrees but those of the king of France ; we must not omit of course the separate juris- diction of the intendants, shown by the numerous ordinances that have been preserved. This system possessed all the essential features which characterized the administration of provinces in France. The government of provinces had long^ been held by the high nobles, often kindred to the Crown, Close beside tliem was the intendant, an obscure figure lost amid the vain glories of the feudal sunset, but in the name of the King holding the reins of government , a check and a spy on his gorgeous colleague.* In the Sovereign Council of New France the Governor, Bishop and Intendant are the prominent figures. The exact jurisdiction of qach of these dignitaries is not always scrupu- lously preserved by them. In particular, the Governor seems *Parkmaii. Old Regime, p. 265. 52 to have complained of infringements by the Bishop and the Intendant. D'Avaugour and De Mezy engaged in warm controversies with Laval. Frontenac furiously disputed points of precedence and authority with the Intendant Duchesneau and later with Champigny. The Governor was usually a military noble : in most cases bearing a title and sometimes of high rank. The i-cope of his nominal powers may be seen b\' a reference to tbe com- missions of Montmagny, de Lauson, de Courcelles and others.* His official title was Governor and Lieutenant-general of the King. He commanded the troops, conducted negotiations with foreign colonies and tribes, possessed authority to punish delinquents to the extent of condemnation to death, " Ic tout souverainement et sans appel." Although the nominal powers of the Governor were great, they were enhanced far beyond n'hat a provincial governor in France ever dreamed of, by reason of the great distance which separated him from nis master the king. If he abused his position, the only remedy was by appeal to the court at Paris. The Intendant who constantly watched the Governor and wrote voluminous secret reports of the condition of affairs in the colony, certainly acted as a kind of check, but the governor also availed himself of the privilege of putting the result of his observations in writii^g, for his own defence and in criticism of his colleague in the council On tbe oilier hand, notwitstanding the ample powers accorded by his commission and incident to the distant scene of his labours, the Governor was constantly in receipt of dcs- ♦EditsetOrd, Vol. III. 53 patches from the couit exhorting, commanding and not infrequently reprimanding him.* Judging solely by the terms of his commission, the In- tendant was the real ruling power in the Colony. Contrary to what historians have frequently stated, no provision was- made for the appointment of an Intendant in the edict creating the Sovereign Council ; and no Intendant seems to- have exercised his office in New France until Talon arrived in 1665. His official title was Intendant of Justice, Policef and Finance. He was commissioned to hear the com- plaints that were made by the colonists or the soldiers by reason of any wrong doing or violence, to render sound and speedy justice and to proceed against the guilty until final judgment and execution. The Intendants were further com- missioned "jugcr souverainment seul en matieres civiles, et de tout ordonncr ainsi que vous verrez etre juste et a propos> validant des a present comme pour lors, les jugements qui seront ainsi par vous rendus, tout ainsi que s'iis etaient *Govemors of Canada under the Old Regime. 1540, Jean Francois "i 74 ment of Quebec , with forty-one parishes, the Government of Three Rivers, with thirt(*cii parishes, the Governmetit of Montreal, with twenty-eight pai 'shes. The '" p irishes are all fully described by their boundaries, The^ vcre piimarily ecclesiastical parishes, many of which had an anterior existence as such, but were for the first time recognized by civil authority in the edict of 1722. Thf beginnings of parishes may be traced to the Habitations or settlements of the colonists. The seigneur was the social head of these communities, admin- istering justice among his censitaires in the absence of other jurisdiction ; receiving their fealty and homage, mutation -fines, and rentes \^\\A taking the place of the syndic: d habitation. No other recognition of these parishes than that of the edict of 1722, was made by civil authorit)' until the year 1881, when a commission by the Legislative Assembly was appoint- ed to establish their limits for civil purposes. The Con.solidated Statutes of Lower Canada embody still later legislation on this subject ; the ecclesiastical parish forming in most instances the actual boundaries of the civil parish. This illustrates the close connection which existed between the civil and religious administration of the colon}-. The restrictions against Hu- guenot immigration, the legal right to 'collect tithes from the colonists, and to obtain from them materials and labour necess- ary for the construction and repairs of churches in obedience to the intendant's order, are further illustrations of this intwn- ate relation. Occasional reference has been made to the Syndics d'hab- itation. There were a class oi officials well known in France, and represented popular rights before the adminis- trative tribunals. There are records of meetings of the 1% inhabitants of the three towns at different intervals for the •election of these ofTici.ils, but these democratic aspirations found no favour in the eyes of authority, and the office fell into desuetude. " You should suppress the ofllice of Syndic," wrote Colbert to Frt)ntenac, " who presents peti: lons in the •" name of the inhabitants, for it is well that each should " speak for himself and not one for all. " The office of the Grand Voyer or Road Surveyor, though not a judicial office, was one of considerable administr itive importance. He supervised the roads and bridges the line -of streets, buildings in danger of collapse, and like rnatters. In 1668 Rene Robineau, sicur de Hecancourt, was named Orand Voyer. He had acted in this capacity since 1657 binder the Hundred Associates. The office existed long after the conquest. In 1706 the Sovereign Council collected and promulgated a number of police regulations of which the eighth refers to the office of the Grand Voyer*. It is as follows : " VIII. The Sieur de Bccancour, grand voyer, is hereby required to visit all the seigniories where main roads have not yet been established ; to establish such in concert with the proprietors of the seignieuries, or in their absence with the Captains of the Militia, unless there be a judge present and to decide, in accordance with tlic opinion of six of the oldest and most important residents of the place, where the roads shall henceforward traverse ; and such roads shall be at least twenty-four feet wide ; the Council com- mands the inhabitants of each such place, each for himself. *Edits et Ordon nances, vol. II, p. 137. 76 to make the saic! roads serviceable and to give days of labour (journccs do corvee) for this purpose wherever necessary; to> make bridges over brooks ; to fill In ditches where there arc any, in accordance with the.- direction of the grand voyer conjointly with the seigneur, judge, officers of militia and the said six inhabitants; we enjoin the said officers of militia to oversee the construction of the said roaiis and bridges and to command the inhabitants to that end ; also to make report to this Council, in the month of October next of the condi- tion of said roads; and in case of any dispute the Council reserves enquiry to itself, but forbids all persons to block up- the said roads with fences or barriers under any pretence whatever, under pain of a fine of t-venty livres, to be devoted to the fabriqiie of the parish of the Seigniory which fine the church-warden shall be bound to exact under pain of beir-' h^mself personally liable therefor." The Corvee, was the system whereby the seigneur or other landholder was entitled to a certain amount of manual labour from his tenants or censitaires, usually for the repairs of roads and bridges. It was introduced into Canada from France, and was provided for in the deeds of concession. De Tocqueville says that the plan of keeping roads in repair in France by corvees was first commenced towards the close of Louis xiv's reign, and the strange notion, that the cost of keeping the roads in repair ought to be borne by the poorest persons in the community and those who travel the least took such root in the minds of those who wer(> gainers by it, that they soon came to believe that no other system was feasible. In Canada the ceiisitaire owed corvees to his n ■p seigneur, and the intendant enforced the obhgation b)- his ordinance. Ordinarily, I le seigneur was not obliged to furnish tools or food, (ni nourritures ni outils). In 1716, Michel Begon, intendant, issued an order forbidding the in- sertion of the clause relating to corvees in future deeds of concession.* The system however had taken deep root, and remained till after the conquest. In 1791, Parliament, by special statute, sanciioned the system, permitting however a commutation of the duty of corvees by a money payment. This statute was the occasion of serious riots in Quebec and Montreal. Ill the first deed of concession of the Island of Montreal the Company of New France stipulated that a grand royal road should be allowed for, twenty toi'^rs wide all round the Island, reckoning from the shore. In 1733, a /oad was opened up between Quebec and Montreal When the Grand Voyer failed to get the hab'tants to open up or keep the roads \n repair, he reported to the intendant, whose mandate with its alternative penalties was usually effective.+ The insufficiency and instability of Currency was ever a source of financial embarrassment under the old regime. Such shipments of coin as were sent to the colony by the king, or were brought thither in the course of trade, persistently found their way back to France, in remittances to creditors there. Owing to the scarcity, wheat and beaver-skins were at one time sanctioned as legal tenders,^ but were, of course, most *Edits et Ord. II, p. 444- tEdits et Ord. II, pp. 288, 341, 383. lEditset Old. II. pp. 47 and 55. 78 inconvenient for small transa tions. To such straits was the intendant do Mcullcs chiven, to provide for the payment of the Carignan regiment, that he issued acicnowledgments written on plaving cards which he ordered the peonjc to accept as currency. This monnak de cartes proved so' great a relief to traders, that, at thcr instance, the goverment permitted a fresh issue, limited in quantity and redeemable every autumn by bills of exchange fVom France. ' -^ So long as the limitation and redemption of the card money was observed, it continued to be popular, but over-issue and the dishonouring of the bills of exchange eventually brou-ht it into disrepute, and caused great distress to the colonist^ In the year 17 17. petitions from imix.verished traders begging for the redemption of large quantities of this worth- less currency, were sent to France. In answer, tho king promised to redeem the cards at half then- pretended value announcing at the same time that he would porrnf- h,,^ o,.e more issue * But such was the dearth of small currency t hit twelve years laters. the colonists, at their wit's end,'be°r, to r:<.ppose that public meet- ings were unknowrt under the Old Regime in Canada. They were, if not frequently yet occasionally held, for purposes more or less remotely connected with public administration, and show at least that the tendency ol the French race in Canada as of all pregressive communities, was on occasion of special moment at least, to assemble together for deliberation oi remonstrance or the iormulation of requests. These meetings, however, were as jealously restricted in the colony as in France, and no meeting of a parish could be convened until permissivin had been obtained, in express terms from the intendant. When municipal officers were to be elected or public affairs discussed, the village bell summoned to poor and rich alike to the church door. There was no regular debate followed by a vote, tho all were free to speak. This semblance of liberty, however, concealed real impotence. No meeting, however unanimous, could impose a tax, or sell, or buy, or lease, or go to law, without permission from Council or Intendant. Louis and Colbert, we have sc;n, deter- mined that even these meagre forms of democracy should be gradually suppressed. The sharp rebuke administered to Frontcnac for assembling the three estates, and attempting to establish municipal institutions, seems to have been most effective in its influence upon his successors. There is record of a meeting of the habitants with the Recollet fathers and Champlain, who presided, in the year 1616. The colony was in dire straits owing to lack of means, difficulties with the trading companies, and dangers from the Iroquois, It was agreed thai the defences of the colony must be increased ; the establishment of » seminary for the educa- tion of Indian children was discussed, and Champlain was. deputed to proceed to France to make known the conditioa of the colony to the king, A similar movement among the colonists took place in 1621 The company of St. Malo and Rouen disputed with the new- company formed by de Montmorenci concerning the mon- opoly of trade. It is said that at this time the colony was on the verge of civil war. A meeting of the principal colonists was held ( n the 18th August, and it was resolved to send a deputy to France, "pour y representer avec humilite, aux pieds. du roi, la cahier du pays." One of the first acts of the Sovereign Council wa.? to con- voke an assembly of citizens of Quebec for the purpose of 8i electing in the presence of the Council, a Mayor and two aldermen " qui auront le soin des affaires publiques de la ville et de son resort," This was done at the instance of the Pro- cureur-general, who reminded the Council that the office of syndic, filled by the choice of the people, " pour la conserva- tion des droits de la communauteet interet public." had been suppressed by former governors.* A mayor and two aldermen were accordingly elected in September, 16G.'J, but in November following, these officials resigned their office and a syndic whs elected in their stead.f The arret convoking a meeting of the inhabitants for this purpose discloses no signatures, and it i* known that it was the occasion of a warm dispute between Mezy the governor and Laval which finally resulted in the recall of the former^. Indeed this controversy is one of the most animated episodes of Canadian history. Mezy seems to hav-e h? • "icnsiderable measure of popular •^''mpathy, but Laval was stronger at the court of France, The convocation of public meetings by Mezy was, besides, utterly repugnant to the young autocrat of France. * Edits et Ordonnances, II. p. 6. + Edits et Ordonnances H. p 13, ifRepentigny was chosen Mayor, and Madry and Charron aldennen; but the choice was not agreeable to the bishop, and the three function- aries declined to act, influences having probably been brought to bear on them to that end, Tlie Council novi resolved that a mayor was need-' less, and tiie people were permitted to cl'.oose a syndic in his stead. These municipal elections were always so controlled by the authorities, that the element of liberty wh'cb they seemed ro represent was little but a mockery. On the present occasion after an uiaccountable delay of ten months twenty-two persons cast their votes iii presence of the council and choire fell on Charron. ^The real question wa? whether the new syndic shf^uid belong to the governor or to the bishop. (Parkman Old Regime P- 152.) 82 Probably the most remarkable of the few public meetings that took place during the Old Rt^gimc were those that were convened by Frontenac in 1672. The story cannot be better told than in the words of Francis Park man. " At Quebec Frontenac convoked the council made them a speech and administered the oath of allegiance* This did not satisfy him. He resolved that all Quebec should take the oath together. It was little but a pretext. Like many of his station Frontenac was not in full sympath; with the centralizing movement of their time, which tended to level ancient rights, privileges and prescriptions under vhc pon- derous roller of the monarchical administration. He looked back with regret to the day when the three orders of the state, clergy, nobles, and commons, had a place and a power in the direction of national affairs. The three orders still subsisied in form, if not in substance, in some of the provinces of France, and Frontenac conceived the idea of reproducing them in Canada. He had no difficulty in forming his order of the clergy. The Jesuits and the seminary priests supplied material even more abundant than he wished. P'or the order of nobles he found three or four gentilshommes at Quebec and these he reinforced with a niimber of others. The third estate consisted of the merchants and citizens," Having assembled these three es<"ates with all the attend- ant pomp and circumstance possible, F''ontenac delivered himself of a high-sounding, and doubtless sufficiently sincere address, upon the duty of the colonists to their king and country, and afterwards administered the oath of allegiance. mG. *Registre du Conseil Souverain, «3 Frontenac also applied himself to the work cf giving muni- cipal government to Quebec. He ordered the election of three aldermen the senior oi which was to be mayor. One of the three was to retire annually, his place to be filled by a new election ; and the governor as lieutenant general of the King reserved the right to confirm or reject. He also, in conjunction with the chief inhabitants, framed regulations for the administration of a town destined, as he often declared to become the chiel city of a mighty empire. Meetings were also to be held semi-annually as above explained. But Colbert shattered all these fine projects nnd democratic germs and wrote to the governor in tht following charact- eristic words. " L'assemblee et la division que vous avez faite de tous les habitants du pays en trois ordres ou etats, pour leur faire preter le serment de fidelite, pouvaient produire un bon efifet dans ce-moment-la ; mais il est bon que vous observiez que, comme vous devez toujours suivre dans le gouverne- ment et la conduite de ce pays-la les formes quise pratiquent ici, et que nos rois ont estime du bien de leur service dcpuis longtemps, de ne point assembler les Etats gen^raux de leur royaume, pour peut-etre an^antir insensiblement cette forme ancienne, vous ne devez aussi donner que tres rarement, et pour mieux dire jamais, cette forme au cords des habitants du dit pays ; et il faudra meme avec un peu de temps, et lorsque la colonic sera encore plus forte qu'elle n'est, suppri- mer insensiblement le syndic qui presente des requetes au nom de tous les habitants> etant bon que chacun parle pour soi, et que personne ne parle pour tous." Of oth»r meetings held at this time we note one held at Three Rivers by permission of the Council on November 3rd, 1664, for the election of a syndic. Not only was this special authorization essential, but it was also ordered that the meeting be held before the judge of Three Rivers and sub- ject to the sanction of the local governor of that place. On the 24th January, 1667, the colonists were permitted to assemble for the purpose of electing a syndic to see that merchants sold their goods in accordance with the prices fixed by tariff, the meeting- to be held before the civil lieutenant. A similar meeting was sanctioned by ordinance, dated 7th October, 1675, for the purpose of considering the imposts on various articles of commerce. This muetmg was presided over by the Intendant. We next have record of an " assemblee des habitans" to consider violations of the regula- tions governing Bakers and Bread. In this arret (20th De- <:ember 1677) is cited a previous Rule of tfee Council* which provided for two meetings to be held on the 15th November and the 15th April of every year, to which the chief inhabi- tanis were invited, to consider and fix the price of bread, and generally, ways and means for developing the colony. Two councillors were to preside. This popular assembly how- ever was short lived. The arret of 20th December, 1677, ordered the lieutenant-general to convoke one meeting ^' sans tirer a consequence pour I'avenir." The hint seems to ♦This was one of forty-lwo interesting municipal rules, collected fron-. those framed by Mexy, Tracy, Frontenac anil the intcndants Talon and Bouteroue. Edits et Ordonnances vol. II. p 65. 8: have been faithfully taken, for these semi-annual meetings were thenceforward never heard of. A somewhat remarkable arret was passed by the King on the 11th May, 1717, permitting the merchants and traders of Quebec and Montreal, in response to their urgent petition, ta meet together every day in some convenient place to confer on matters of business.* The petition, as appears from the arret itself, set forth that commerce was the principal means by which the colony could grow and maintain itself, and that it could never flourish so long as traders {ue'^viianis} were not permitted to assemble together in the manner sanctioned in all the cities of France. Not only was this Exchange or Bourse allowed, but the traders were allowed to name one of their member through whom representations in regard to trade and commerce, were made to the Governor and Intendant. In virtue of this arret a meeting of merchants and traders was held, in the presence of the intendant of course, on the 6th October, 1740, and one Desauniers was chosen as their representative. Whether or not other meetings or other elections had been held in the interval of twenty-three ye;irs»- can only be surmised, as the records are silent on thesubject» ♦Edits el Oidonnances vol. I, p. 355. I 86 viir Greek and Roman cohmhation contrasted uith that of France in Canada— The solicitude of Louis XIV— Traces of the Old Regime-Freedom in France—Causes of the fall of New France — Concluding zvords. There are two methods of colonization of which ancient European history preserves permanent record-the Greek and the Roman. They might fruitfully have taught their lesson to the colonizing nations of modern times ; but rarely, if ever, have such nations looked to history for guidance! Even to-day her archives are ransacked for precedents rather than for principles. Tft# Greek colony was an expansion, It was a voluntary exodus. Jt was like the going forth of young manhood to seek fortune- -nd fame. It did not cease to form part of a '^^'^^^' ■'' »e«wained attached to the mother- land by the most filial ties, while asserting and enjoying undiminished rights and complete autonomy. The Corcy- raean ambassadors, addressing the assembly at Athens said ; " Every cobny, if well treated, honours the mother country ; but if wronged, is estranged from it: for they are not sent out to be slaves, but to be on the same footing with those who arc left at home." The Greek colonist carried with him into new lands the glorious heritage of Greece in art and poetry and philoso- phy, and in the inspiring traditions of freedom as well, and 87 became in turn the parent of liberties when grosser conquer- ors held a physical sway. Roman colonization was the imposition of her civilization upon barbarous nations by thr force of mighty conquest. Less exclusive than the Greeks, who kept aloof from those not of their race and denied them the exercise of rifrhts such as their own, the Romans gradually admitted the van- quished to the privileges of Roaian citizenship, opened up ^reat roads, encoura;;ed trade and commerce, established law and maintiined order, and promoted pro-.perity by actt'al occupancy of the conquered territory. The colonization of New France was neither an expansion nor a conquest. The vast territory of the New World seems to have been regarded by the kings of France as a hunting- ground and trade-preserve, and as a prize to be withheld from competitors for supremacy. It was well known that if France abandoned it, England and Spain would at once seize it ! France therefore determiicd to maintain her occupancy. But the natural flow of trade and population was not permitted to have its course. The Huguenots who might there have enjoyed a refuge, were excluded. Even the number of French Catholics desiring to go to the colony from F'rance was restrictecJ. " It is not his Majesty's intention " wrote one of the ministers of Marine and Colonics, " to depopulate his kingdom in order that che cf)lony may be populated." The kings of P'rance, contemporaneous with the old regime in Canada from the time of Jacques Cartier, were Francis I, Henry II, Francis 1 1, Charles IX, Henry HI, Henry IV, Louis XIII, Louis XIV and L<.uis XV, but it was during the reign of Louis XIV, that the characteristic features of that period were n • developed. The administration, as we have -^cen.was paternal, autocratic, and repressive to an extreme de;;ree. The colon- ists had no determining voice in trade, or justice, in peace or war. Ihc occasional manifestations of a desire to partici- pate 111 public affairs, were sternly rebuked and repressed* There was nothing that the Grand Monarch so greatly abhorred as the Vox Popuii. T( liim it was veritably a Vox Diaboli. Still, of his genuine concern for the Canadian ■colony, there can be no doubt He was moi^i lavish in his ■expenditure upon it. His personal labours in mastering the prolix reports of governors and intendants were gre.it and unwearied. By gifts of men and money ; bounties to large families; the- .shipment of wives to the colonists ; alternate banishments and amnesties to the cottnurs dc bois who fled from the restrictions of the settlements ; by an immense number of edicts relating to trade, finance and the general life •of the habitants, he sought to build up in Canada a powerful ^ ^\ w^ rv 23 WEST MAIN STREET WEBSTER, N.Y. 14S8C (716) 872-4503 r« 5c^W' ^ o^ at home, energy and expenditure abroad. It demanded qualifications that Louis Bienaimc conspicuoujly lacked Hi& rule was despotic bu. feeble; his cou-t was stately but scandalous ; degraded by vice and frivolity ; unredeemed by wisdom or capacity in statecraft.* The old methods of administration were continued in Canada, but with greatlj' dimm.shed energy. Louis XIV, had been lavish, but' Louis XV was niggardly. The strategic schemes of La GalLssonii-re for defence were disregarded ; the supremacy of France in America was therefore doomed. The policy of the two Louis' failed because it was autocratic, prohibitive, restrictive, in times of peace, and deficient in concentrated purpose and energy in the crisis of war. What the fate of Canada would have been, had English aggression been succe3sfully resisted.-xvhether she would have b.come another Algeria, or ere now an independent state born of revolution, :t is perhaps idle to speculate upon^ unless it be true that absolutism is everywhere doomed to impermanence.t The long contention between France and England for colonial supremacy was decided upon the Plains- of Abraham, and the old regime f-en passed away. Not however, without leaving traces In the Coutume de Paris and the Ordinance of 1667. there remained vestiges of its judicial system ; the seigneurial tenure until it was abolished * " Beautiful Armida Palace, where tlie inuir-tcs live enchanted lives ; lapped in soft music of adulation ; waited on by the splendours of the world; whi. h never 'leless hangs wondrously as by a single hair.' Cailyle, Frencii Revolution, 1.4. tSir Henry Mai.ie, on the other hand, is of opinion that history has demonstrated the impcrmanence of popular government hitherto. Vide his Popular Government Chap. I. 90 in 1856, preserved traces of its social system ; and there still remains as the unimpaired witness of the old order and of the new, the Church, whose influence was acknowledged and disclosed in almost every edict and ordinance from the time of Jacaues Cartier onward. In commenting upon the paternal and indeed autocratic nature of the administration of the old regime, and compar- ing it with the full measure of self government, with rights of public meeting, persona! liberty and general equality before tho law which resulted from British supremacy, expressions have been frequently employed by writers not a few, tending to convey the impression thr.t France wa? pre-eminent among European nations in the arbitrary and despotic character of her governmental administration. But it is only with Eng- land that she suffers from comparison in these respects. In France, public opinion was far more potent and law was vastly more influential, than in Germany or Spain or Italy. Mr. Dicey has well said on this very point that " All the " evils of despotism which attracted the notice of the world ' in a great kingdom such as France, existed under worse " forms in countries where, just because the evil was so much ** greater, it attracted less attention."* De Tocqueville also, in commentmg upon the causes of the French revolution, shows that although a European revolution destined to abolish the remains of mediaeval instituiions was inevitable, it did not break out in countries, such as the principalities of G( rmany where those institutions were in full vitality and most oppressive, but, (and here is ♦Dicey. The Laws of the Constitution, p. 180 91 the special pertinence of his remarks) in a country, France, v/here they were hardly felt at all and where peasant proprie- torship and freedom of control were well established.* The history of Canada under the Old Regime is well worth ^examination from any point of view, but the advantages of an examination from what may be termed a legal stand-point are unaoubtely superior. What to the lay mind is merely a wearisome reiteration of Indian wars, fur trade disputes, and -ecclesiastical wranglings, relieved here and there by such moving episodes as the e. can only be maintained either by great native energy or great extrinsic support. The colonists of New France never became their own defence. As warriors their only skill was in la petite guerre. Large achievements were beyond their conceptions. Restraints upon their personal freedom made it impossible for them to devise measures for the protection of the co- lony, while all impulses in that direction were made powerless by trade restrictions, monopolies, and administrative corrup- tion. But Quebec fell by reason of another co-operating cause. In the 18th century the great duel between France and Eng- land for colonial supremacy was almost continuously wageu. France had preceded England in colonial enterprise. Her standards were planted in America, and in the Indie. East and West long before those of her rival, She had long pursued a definite colonial policy, guided by a succession of able admin- istrators Richelieu, Mazarin, and Colbert. She had spent enormous sums upon her colonies long before Etigland had awakened to consciousness of her opportunity for expansio.> and trade. Bu.^ England, the sea-girt isle, was able to keep aloof from the contentions of the continent. J.-, the fifteenth century she withdrew from France. In the two succeeding centuries, though frequently involved in European wars, she- wa.s never directly concerned in maintaining European as- cendancy. Her chief opponent in European wars was France. France however, not only fought England, but Prussia and Austria and the Netherlands as well. When the fate ot 93 Canada was placed in issue, the energies of France were thus divided between colonial expansion and European supremacy. She proved unequal to the double strain. '1 he counsels of the sagacious Galissionicrrc were disregarded, the brave Montcalm contended against difficulties insuperable, and New France fell. If, in any survey of historic events, the student has imper- fectly performed his task, unless he discern some large con- clusion which tliey teach, he may learn from an investigation of the Old Rd'gime that, so long as Canada was regarded as a territorial prize, to be exclusively preserved for the advantage ■of France alone, she became of necessity a perilous possess- ion. Had she been permitted to develop as an expansion ■of a great nation, she might have become her own defender. This indeed she did become under the new order. When the only serious disruption that the British Empire has ever known took place in 178G ; when France sought to avenge her loss by sending Lafayette to the help of Washington, Canada r::mained staunch and firm in her new allegiance ; and once again during the Napoleonic wars did she resist with successful valour, invasion from the South.* The old regime has passed away ; the old order has given place to the new. The invigorating and irresistible light of a larger freedom resulting from the development of popular * I venture to think that Mill in his work on Representative Govern- ment (p. 337) is scarcely just in remarking that, " until the present generation England has been on the same bad level with other countries as to the amount of self-government which she allowed her colonies to exercise through the representative institutions that she conceded to them." In this respect England has notably been first and alone. Elsewhere Mill more correctly notes, that the vicious theory of colonial policy which regarded colonies as exclusive trading-markets, has not been as yet completely relinquished by any other nation than England. 94 government, has spread throughout the ancient colony and throughout its motherlands as well. Goverment by the One or the Few, has, in Aristotelian phrase, given place to govern- ment by the Many, not (at least ostensibly) for the private but for the common interest. And although we cannot flatter ourselves that the political problems of an advancing civilization have all been solved ; and even though we concur in the opinion that of all forms of government the democratic is the most difficult,* we may with confidence affirm that political difficulties can best be solved by the inheritors of freedom,— that freedom, oft in peril but never wholly lost, which can be traced through many memorable events, in many years of human story, even to the dim borderlands of authentic history, when the assembled democ racy, with shouts and clashing spears, pioclaimad its will, at once a testimony and a prophecy ; that freedom which Plato and Aristotle, Cicero and Seneca, St. Thomas Aquinas and John of Salisbury, Milton and Locke, Montesquieu and Edmund Burke-these and their kindred, cherished and preserved by the power of their genius, thereby exalting literature to unfading honour ; that freedom for which the Gracchi and Livius Drusus, Arnold of Brescia and Rienzi Olgiati and Lampugnani, the heroes of Morgarten and Sem- pach, Philip van Artevelde and William of Nassau, not less than the martyrs of our awn fatherland, have shed their blood : that freedom, oft in per 1 but never wholly lost, which is now, it may be hoped, exparding into full and fair fruition for the' healing of the human race ! *Such is the opinion of Sir. Henry Maine. Popular Government, Chap, ii. Pi 95 / Ihe Administration of the Old Regivie in Canada. Three hundred and fifty copies printed. No %. *aP'7^ti««.w j^ ^nf^^'J .i.v. ;.■<::'" * z Prjmted by L. E. & A. F. WAVERS, Montreai,. i