* The governor and intendant made frequent appeals to the
court to settle questions arising between them. Several of
these appeals are preserved. The king wrote replies on the
margin of the paper, but they were usually too curt and
general to satisfy either party.
** Déclaration du Roi du 16me Juin, 1703. Appointments were
made by the king many years earlier. As they were always
made on the recommendation of the governor and intendant,
the practical effect of the change was merely to exclude the
bishop from a share in them. The West India Company made the
nominations during the ten years of its ascendancy.
*** Cheruel, Administration Monarchique en France, II. 100.
remained the same. It issued decrees for the civil, commercial, and financial government of the colony, and gave judgment in civil and criminal causes according to the royal ordinances and the Coutume de Paris. It exercised also the function of registration borrowed from the parliament of Paris. That body, it will be remembered, had no analogy whatever with the English parliament. Its ordinary functions were not legislative, but judicial; and it was composed of judges hereditary under certain conditions. Nevertheless, it had long acted as a check on the royal power through its right of registration. No royal edict had the force of law till entered upon its books, and this custom had so deep a root in the monarchical constitution of France, that even Louis XIV., in the flush of his power, did not attempt to abolish it. He did better; he ordered his decrees to be registered, and the humbled parliament submissively obeyed. In like manner all edicts, ordinances, or declarations relating to Canada were entered on the registers of the superior council at Quebec. The order of registration was commonly affixed to the edict or other mandate, and nobody dreamed of disobeying it. *
The council or court had its attorney-general, who heard complaints and brought them before the tribunal if he thought necessary; its secretary, who kept its registers, and its huissiers or attendant officers. It sat once a week; and, though
* Many general edicts relating to the whole kingdom are
also registered on the books of the council, but the
practice in this respect was by no means uniform.
it was the highest court of appeal, it exercised at first original jurisdiction in very trivial cases. * It was empowered to establish subordinate courts or judges throughout the colony. Besides these there was a judge appointed by the king for each of the three districts into which Canada was divided, those of Quebec, Three Rivers, and Montreal. To each of the three royal judges were joined a clerk and an attorney-general under the supervision and control of the attorney-general of the superior court, to which tribunal appeal lay from all the subordinate jurisdictions. The jurisdiction of the seigniors within their own limits has already been mentioned. They were entitled by the terms of their grants to the exercise of “high, middle, and low justice;” but most of them were practically restricted to the last of the three, that is, to petty disputes between the habitans, involving not more than sixty sous, or offences for which the fine did not exceed ten sous. ** Thus limited, their judgments were often useful in saving time, trouble, and money to the disputants. The corporate seigniors of Montreal long continued to hold a feudal court in form, with attorney-general, clerk, and huissier; but very few other seigniors were in a condition to imitate them. Added to all these tribunals was the bishop’s court at Quebec to try causes held to be within the province of the church.
* See the Registres du Conseil Supérieur, preserved at
Quebec. Between 1663 and 1673 are a multitude of judgments
on matters great and small; from murder, rape, and
infanticide, down to petty nuisances, misbehavior of
servants, and disputes about the price of a sow.
** Doutre et Lareau, Histoire du Droit Canadien, 135.
The office of judge in Canada was no sinecure. The people were of a litigious disposition, partly from their Norman blood, partly perhaps from the idleness of the long and tedious winter, which gave full leisure for gossip and quarrel, and partly from the very imperfect manner in which titles had been drawn and the boundaries of grants marked out, whence ensued disputes without end between neighbor and neighbor.
“I will not say,” writes the satirical La Hontan, "that Justice is more chaste and disinterested here than in France; but, at least, if she is sold, she is sold cheaper. We do not pass through the clutches of advocates, the talons of attorneys, and the claws of clerks. These vermin do not infest Canada yet. Everybody pleads his own cause. Our Themis is prompt, and she does not bristle with fees, costs, and charges. The judges have only four hundred francs a year, a great temptation to look for law in the bottom of the suitor’s purse. Four hundred francs! Not enough to buy a cap and gown, so these gentry never wear them.” *
Thus far La Hontan. Now let us hear the king; himself. “The greatest disorder which has hitherto existed in Canada,” writes Louis XIV. to the intendant Meules, “has come from the small degree of liberty which the officers of justice have had in the discharge of their duties, by reason of the violence to which they have been subjected, and the part they have been obliged to take in the
* La Hontan, I. 21 (ed. 1705). In some editions, the above
is expressed in different language.