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The Impact of the Change in Legal Metropolis on the Development of Lower Canada's Legal System: Judicial Chaos and Legislative Paralysis in the Civil Law, 1791–1838

Published online by Cambridge University Press:  18 July 2014

Evelyn Kolish
Evelyn Kolish
Affiliation:
History Department, Université du Québec à Montréal
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Abstract

This paper contends that the chaos and uncertainty characteristic of the administration of the civil law in Lower Canada resulted fundamentally from the impact of the change in legal metropolis on the process of transfer and adaptation of a European legal system to a colonial setting, in a context of ethnic or national struggle for hegemony. After a brief look at the situation existing under the Quebec Act and the explanations previously offered, the paper examines the functioning of the two major mechanisms of legal adaptation or reform--legislation and jurisprudence--in order to analyse their failure to reduce judicial chaos between 1791 and 1840. Ethnic conflict combined with the change of metropolis acted to prevent any modernization of the law not inspired by English legal principles and thus effectively eliminated the possibility of legislative reform of the laws. In this context, a predominantly British judiciary became the prime avenue for anglicizing Canadian law and thereby increasing rather than decreasing the existing uncertainty and confusion in the administration of the civil law.

Résumé

Cet article affirme que le chaos juridique qui prévale dans l'administration du droit privé au Bas-Canada découle fondamentalement des effects du changement de la métropole juridique sur le transfert et l'adaptation d'un système juridique européen à un milieu colonial, et ce, dans le contexte d'une lutte pour l'hégémonie nationale ou ethnique. L'étude décrit d'abord la situation sous l'Acte de Québec et l'historiographie associée. Ensuite, on procède à l'analyse du fonctionnement des deux principaux mécanismes de réforme juridique--la législation et la jurisprudence--afin de mieux cerner pourquoi ils n'ont pas diminué la confusion et l'incertitude dans le droit privé entre 1791 et 1840. La réforme juridique par voie législative se voit bloquée, car le changement de la métropole juridique, joint au conflit ethnique, empêche toute modernisation du droit privé qui n'est pas d'inspiration anglaise. Dans ce contexte, une magistrature dominée par des juges britanniques devient la source principale de changement. Cherchant à angliciser le droit privé canadien, le magistrature augmente plutôt que réduit la confusion dans l'administration du droit privé.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 3 , 1988 , pp. 1 - 25
Copyright
Copyright © Canadian Law and Society Association 1988

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References

Notes

1. Girod, Amury, Notes diverses sur le Bas-Canada (Village Débartsch: De l'imprimerie de J.-P. Boucher-Belleville, 1835), 36.Google Scholar

2. Reported in the Journal of the House of Assembly of Lower Canada (Henceforth JHALC) 1836, Appendix EE, paragraph 1163.

3. Until quite recently, if one excluded the old traditional legal history texts such as Gonzalva Doutre and Lareau, Edmond, Le droit civil canadien (Montréal: A. Doutre, 1872)Google Scholar and the production of course notes for the legal history courses offered in Quebec's law faculties (such as those by the late Jean-Charles Bonenfant at Laval and André Morel at the University of Montreal), about the only published work available on Lower Canada's laws or legal system was an article by Jean-Pierre Wallot that reprinted criticisms of the administration of justice made in Le Canadien in 1807 and set them in context. See “Plaintes contre l'administration de la justice (1807),” Revue d'histoire de l'Amérique française (RHAF) 19 (1965–1966): 551–560Google Scholar; 20 (1966-67): 29-43, 281-290, 366-379. Most of the recent work in this area has been produced since 1980: for example, Hay, Douglas, “The Meanings of the Criminal Law in Quebec, 1764-1774” in Knafla, L. A. (ed.), Crime and Criminal Justice in Europe and Canada (Waterloo, Ontario: Wilfrid Laurier University Press, 1981)Google Scholar; Fecteau, J.-M., La pauvreté, le crime, l'état: essai sur l'économie politique du contrôle social au Québec, 1791-1840, Ph.D. thesis (Paris VII, 1983)Google Scholar; Fecteau, J.M., “Regulation sociale et répression de la déviance au Bas-Canada au tournant du 19e siècle (1791-1815),” RHAF 38 (1985), 499–522Google Scholar; Kolish, Evelyn, Changements dans le droit privé au Québec/Bas-Canada entre 1760-1840: attitudes et réactions des contemporains, Ph.D. thesis, (University of Montreal, 1980)Google Scholar; Kolish, E., “Le Conseil législatif et les bureaux d'enregistrement (1836),” RHAF 35 (September 1981) 2: 217–230Google Scholar and “L'introduction de la faillite au Bas-Canada: conflit social ou national?” RHAF 40 (Fall 1986) 2:215–235Google Scholar; Brisson, Jean-Maurice, La formation d'un droit mixte: l'évolution de la procédure civile de 1774 à 1867 (Montreal: Editions Themis, 1986)Google Scholar.

4. Neatby's, Hilda pioneering work, The Administration of Justice under the Quebec Act (Minneapolis: University of Minnesota Press, 1937)Google Scholar did not attract her colleagues into the field, nor did she pursue it further herself. Only in the 1970s does the field of legal history begin to arouse much consistent interest See for example Risk, R.C.B., “A prospectus for Canadian Legal History,” Dalhousie Law Journal 1 (December 1973), 277Google Scholar; Beattie, J.M., Attitudes Towards Crime and Punishment in Upper Canada, 1830-1850: A Documentary Study (Toronto: Centre of Criminology, University of Toronto, 1977)Google Scholar; Flaherty, D. (ed.), Essays in the History of Canadian Law (Toronto: University of Toronto Press), volume 1 (1981), volume 2 (1983)CrossRefGoogle Scholar.

5. A glance at the civil list is most revealing. For Lower Canada, for example, an average of 27% of the budget spent on civil government was allocated to the administration of justice between 1794 and 1812--the single largest sector of expenditure. See Pacquet, Gilles and Wallot, Jean-Pierre, Patronage et pouvoir dans le Bas-Canada (1794-1812) (Montréal: Les Presses de l'Université du Québec, 1973), 30–31Google Scholar, for the source of the above average and for a breakdown of the civil list by sector.

6. See, for example, Eccles, W. J., The Canadian Frontier, 1534-1760 (Albuquerque: University of New Mexico Press, 1976), 79Google Scholar.

7. For New France, see Lachance, André, La justice criminelle du Roi au Canada au 18e siécle (Québec: Les Presses de l'Université Laval, 1978)Google Scholar and Dickinson, J.A., Justice et justiciables: La procédure civile à la Prévôté de Québec, 1667-1759 (Québec: Les Presses de l'Université Laval, 1982)Google Scholar. For the American colonies see, for example, Select Essays in Anglo-American Legal History, Association of American Law Schools (Boston: Little, Brown and Co., 1907)Google Scholar, especially the articles by Paul Samuel Rheinsch (367-416) and St. George Leakin Sioussat (416-423).

8. Rheinsch, Paul Samuel, “The English Common Law in the early American Colonies,” in Select Essays in Anglo-American Legal History, Association of American Law Schools, 370Google Scholar.

9. I am writing here in terms of the private law. The Conquest constitutes an even more definitive rupture in terms of the criminal law, where there is never any serious question of returning to French criminal law and procedure. The significance of this rupture is a matter of some debate and disagreement, with Morel, André, “La réception du droit criminel anglais au Québec (1760-1892),” Revue juridique Thémis 13 (1978), 449–541Google Scholar and Hay, Douglas, “The Meanings of the Criminal Law in Quebec, 1764-1774” in Knafla, L.A. (ed.), Crime and Criminal Justice in Europe and CanadaGoogle Scholar, generally agreeing on the importance of the changeover, and Fecteau, J.-M., “Régulation sociale et repression…” suggesting that the introduction of English criminal law “n'eut certes pas l'impact qu'on serait tenté de lui attribuer,” RHAF 38 (1985) 4: 507Google Scholar. But at least the new criminal law would pose no problems in terms of the normal functioning of the process of the transfer and adaptation of the law from the European metropolis to its colony. The same cannot be said of the private law.

10. The need for definition was especially strong because of the multiplicity of sources upon which Canadian law drew under the French regime. (Note that throughout this paper the term “Canadian” will be used as it was during the period under study to designate “French-Canadian.”) The general basis for the colony's private law became the Custom of Paris in 1664. Roman law was also part of the system, referred to, as in the territories of customary law in ancien regime France, whenever customary law was silent or inadequate, as in the important area of contracts. Canon law was applied with regard to marriage. Royal legislation, both French and local, completed the tally. Determining exactly what parts of French legislation had applied to New France was to be one of the major problems for the British.

11. These were Lord North's words in the debate on the Quebec Act. SirCavendish, Henry, Debates of the House of Commons (1774) (London, 1839), 11Google Scholar.

12. Neatby, Hilda, Quebec: The Revolutionary Age, 1760-1791, Canadian Centenary Series, No. 6 (Toronto: McClelland and Stewart, 1966), 140Google Scholar.

13. Shortt, Adam and Doughty, Arthur G. (eds.), Documents Relating to the Constitutional History of Canada, 1759-1791 (Ottawa: Public Archives of Canada, 1907), 599Google Scholar.

14. Carleton chose to keep these instructions secret, as they ran counter to his own plan for ensuring the support of the Church and the Canadian seigneurs.

15. Neatby, , The Administration of JusticeGoogle Scholar.

16. “Investigation of the Judges of the Common Pleas,” PAC, M.G. 11, Q. 29-2: testimony of Mr. Grant, 313.

17. Neatby, , The Administration of Justice, 172–173Google Scholar.

18. Ibid., 347.

19. The law in question is 34 Geo. III ch. 6. Confusion exists regarding the date of this law as it is listed in the statute book as 1793. The 34th year of George III's reign began in October of 1793, but the law in question only had its first reading in February 1794 and was adopted by both houses in May and then reserved for the signification of the King's pleasure at the end of the session. See JHALC, 1793-1794.

20. The purpose of the article in question is clearly set forth in James Monk's letter to Dundas, June 6, 1794, as a means of forestalling discontent and rebellion among the Canadian peasantry. Doughty, A.G. and McArthur, D., Documents relating to the Constitutional History of Canada, 1791-1818 (Ottawa: Public Archives of Canada, 1935), 118Google Scholar.

21. James Reid, a singularly able, conscientious and non-political judge, was one exception. See his decision in the case Terrien v. Madame de Longueil in his Notes and Cases in 6 volumes, 1 (1810-1812), 411 in the collection of his papers at the Bibliothèque du Barreau de Montréal, or Kolish, Changements, 317.

22. The serment decisoire allowed one litigant to leave the establishing of a contested fact to his opponent under oath.

23. The only documented opposition came in a report from Attorney General Sewell after the bill had been adopted by both Assembly and Council. For the details of his opinion see Sewell to Milnes, 4 April 1801, PAC, M.G. 11, Q. 86, 270-275 or Kolish, Changements, 264-267.

24. For a detailed treatment of a highly complex issue, see Morel, André, Les limites de la liberté testamentaire au Québec (Paris: Librairie générale du Droit et de Jurisprudence, 1960)Google Scholar.

25. For a detailed treatment of the debate on bankruptcy, see Kolish, Evelyn“L'introduction de la faillite au Bas-Canada: conflit social ou national?” 215–235Google Scholar.

26. 2 Vict. ch. 36.

27. Although British opposition to the seigneurial regime has often been explained as the inevitable reaction of dynamic merchants working to lay the basis for an industrial economy, such an interpretation is in contradiction with the actual behaviour of the British party prior to 1840. The contradictions between the rhetoric and the behaviour of these anti-seigneurialists are well presented by Bernier, Gérald and Salée, Daniel in “Appropriation foncière et bourgeoisie marchande: éléments pour une analyse de l'économie marchande du Bas-Canada avant 1846,” RHAF 36 (September 1982) 2: 163–194Google Scholar.

28. An Act to provide for the Extinction of Feudal and Seigniorial Rights and Burthens of Lands held à Titre de Fief and à Titre de Cens in the Province of Lower Canada; and for the gradual conversion of those tenures into the tenure of Free and Common Soccage; and for other purposes relating to the said Province. Complete text published in the Montreal Gazette, October 8, 1825.

29. Article 9 read: “Provided always, that nothing in this Act contained shall extend or be construed to extend, to any Lands that have been granted by His Majesty, His Heirs and Successors, to be holden in free and common soccage.” Shortt, and Doughty, , Constitutional Documents, 558Google Scholar.

30. Doughty, A.G. and Story, N. (eds.), Documents Relating to the Constitutional History of Canada, 1819-1828 (Ottawa: 1935), 316Google Scholar.

31. In addition to regularizing former transactions, the bill proposed: allowing the French mode of sale (by notarial contract) as simpler and better known than conveyancing; allowing hypothecs as well as mortgages on soccage lands provided that the hypothec was specific rather than general; replacing English law by French with regard to ab intestat inheritance. These changes were contested by part of the British community as being contradictory to the letter and spirit of the Canada Tenures Act, and Governor Kempt, confronted by hostile criticisms from Attorney General Stuart and an equally forceful defence of the measure from Chief Justice Sewell, reserved the bill. It only received royal assent in 1831, after the Imperial Parliament had passed a law authorizing the provincial legislature to make any changes it felt necessary, “any repugnancy or supposed repugnancy of any such regulations to the law of England … notwithstanding.” Statutes at Large, 1 Will. IV ch. 20.

32. For more on registry offices, see Kolish, Evelyn, “Le Conseil législatif et les bureaux d'enregistrement,” 217–230Google Scholar.

33. Reports from the Select Committee on the Civil Government of Canada and on the Affairs of Lower Canada. With Minutes of Evidence, Irish University Press Series of British Parliamentary Papers (Shannon: Irish University Press, 1968), 5Google Scholar.

34. Ibid.

35. See, for example, Pierre Bédard's letter to John Neilson, in which he (the Provincial Judge for Three-Rivers) tries to get information on a recent case in appeal. PAC. M.G. 24, B.1, Neilson Collection, Bédard to Neilson, January 1815.

36. Neatby, , The Administration of Justice, 347Google Scholar.

37. Kennedy, W.P.M. and Lanctôt, G. (eds.), Report on the Laws of Quebec, 1767-1790 (Ottawa: Publications of the Public Archives of Canada, 1931), no. 10, 75Google Scholar.

38. Alexander Gray to Lord Melville, June 1787, PAC, M.G. 23, G. II. 15.

39. Ibid. Note that Scots law is not the same as English law, but rather much closer to continental legal systems, particularly as regards the influence of Roman law. Gray's suggestion seems very apt--Quebec could have made good use of a Lord Mansfield, who would have had both an understanding of and appreciation for a civilian legal system.

40. The division of the judiciary along ethnic lines is a constant, with very few exceptions. For example, in 1803 the Governor asked the judges of the King's Bench to give their opinion as to whether lands held in free and common soccage were subject to the English or Canadian law of descent and dower. All the Canadian judges believed that Canadian law applied, all the British judges but one disagreed. (Justices de Bonne, Panet and Monk opted for Canadian law, and Justices Elmsely, Dunn, Williams, Davidson and Ogden for the Common Law.) PAC, M.G. 11, Q. 92, 161-202.

41. There was never more than one Canadian judge per district before 1836. During the period under discussion (1791-1840), the normal situation for the two major judicial districts of Montreal and Quebec was one Canadian and three British judges. The lesser districts that were gradually established in the less populous regions had only one resident judge each: a Canadian at Three-Rivers and British judges in the Eastern Townships and the Gaspé.

42. The notable exception was Louis-Charles Foucher, Solicitor General from 1795 to 1804, at which time he was elevated to the bench.

43. Happily for future researchers, the court records of Quebec are now in the process of being made available, as they are being gradually transferred from the Ministry of Justice to the Archives Nationales du Québec, in accord with Quebec's recent (1983) law on archives.

44. Perrault the elder to J.-O. Perrault, July 14, 1807, Baby Collection, Archives of the Université de Montréal, Box 188.

45. For more details on this case, see J.-P. Wallot, “Plaintes” (Note 3). For more details on Osgoode's objections to the 1801 law on willing, see my thesis, 322-338.

46. A rash of accusations against several judges were investigated by the Assembly in the late 1820s and taken up again by the Standing Committee on Grievances in 1836 (see reports 6, 7, 9, 10 and 13 of the Committee on Grievances in the JHALC for 1836). Judge Kerr, one of the older, English-trained judges, was reported as saying that Canadian law was “unworthy of an English judge.” (Speech by Gugy in Montreal Gazette, December 3, 1831). He had also been heard to declare from the bench that “he did not know what the law of Lower Canada might be, as applicable to the particular case then under consideration” (testimony of de Saint Réal, Vallières, JHALC (1829) app. LL)Google Scholar. John Fletcher (Eastern Townships) was reported not only to despise Canadian law, but also to refuse to use French rules of evidence in any cases whatsoever, even though English rules of evidence were only legally applicable to commercial cases. (Testimony of Marcus Child, February 16, 1836. See also testimony of Kimball, George and Short, Edward, JHALC (1836) app. EE)Google Scholar.

47. When Sewell became Chief Justice in 1808, Le Canadien, organ of the parti canadien, rejoiced that finally the colony had a Chief Justice “élevé dans l'étude des loix du pays” and hoped that he would devote his talents and erudition to reducing the judicial chaos. Le Canadien, August 27, 1808.

48. And this not only through the legal system. See Wallot, J.-P., “Sewell et son projet d'asservir le clergé canadien,” RHAF 16 (1962-1963), 549–566Google Scholar.

49. Doughty, and McArthur, , Constitutional Documents, 264Google Scholar.

50. Ibid., 265.

51. Ibid., 255.

52. Journal of the Legislative Council of Lower Canada (Henceforth JLCLC), (excerpts, 1795–1813), 179Google Scholar.

53. Sewell to Milnes, April 2, 1801, PAC, M.G. II, Q. 86, 249-255. In sharp contrast was the justification offered by Panet, who believed that it was necessary to give women the right to dispose of their share of the matrimonial community by will in order to preserve the Canadian concept of marriage as a partnership. Under English law in 1801, married women had no right of willing as they had no juridical capacity and no property, all of a woman's property being automatically conveyed to her husband at marriage. See “Observations on a Protest of the Honourable William Osgoode, Speaker of the Legislative Council, on a Bill intituled (sic) An Act to explain and amend the Law respecting last wills and Testaments,” P.L. Panet, PAC, M.G. II Q. 86, 259-267.

54. Sewell became the Chief Justice of the Province and Speaker of the Legislative Council in 1808 and remained in these highly influential posts until 1838.

55. He followed up his work as Attorney General in the Duchesnay case by his ruling on the bench in 1811 in Grant and Greenshields v. Planté. For a more detailed explanation of this issue, see my thesis, 282-291.

56. Pyke's Reports of Cases argued and determined in the Court of King's Bench, for the District of Quebec in the Province of Lower Canada, in Hilary term in the 15th year of the reign of George III, (no editor, 1811), 11–19Google Scholar.

57. See, for example, Manning, H.T., The Revolt of French Canada (1800-1835) (Toronto: Macmillan, 1962), 106–108Google Scholar; Chapais, Thomas, Cours d'histoire du Canada, 8 volumes (Montreal: Boréal Express, 1972) 3: 17–30Google Scholar; Ouellet, F., Histoire économique et sociale du Québec, 1760-1850, Les Cahiers du Québec (Montréal: Editions Hurtubise HMH, 1972) 1: 228Google Scholar.

58. Bédard to Neilson, November 3, 1814, PAC, M.G. 24, B. 1, Neilson papers.

59. Bédard to Neilson, February 23, 1814, PAC, M.G. 24, B. 1, Neilson papers.

60. James Monk to Jonathan Sewell, n.d., PAC, M.G. 23, G.II.10, Sewell papers, 2041-2042. Monk was discussing objections made to rules of practice changing the time limit for initiating an appeal.

61. For example, they replied to the Assembly's first accusation by declaring that the rule in question was “sanctioned by the precedents in England in the House of Lords and the Courts of Chancery and the Exchequer”; with regards to the fourth accusation, they found that there were “many similar declaratory rules in England in the King's Bench and Common Pleas”; to the ninth accusation they replied “justified by the precedents of similar rules and proceedings in England”; to the twelfth: “general practice in England”; to the thirteenth: “similar rules practised in England”; to the eighteenth: “many precedents in English Courts”; “Extracts of a Report,” PAC, M.B. 23, G.II. 10, Sewell papers, volume 16.

62. Bédard to Neilson, December 15, 1815. PAC, M.G. 24, B.1, Neilson papers.

63. Letter from Bédard to Neilson, July 1, 1820, in Neilson papers at PAC, cited in Audet, F.-J., “Joseph Levasseur Borgia,” Transactions and Proceedings of the Royal Society of Canada (Ottawa: The Royal Society of Canada, 1925), 3rd series, volume XIX, 72Google Scholar.

64. For more details on this episode, see Kolish, , Changements, 404–420Google Scholar.

65. SirStuart, James, Observations on the proposed union of the provinces of Upper and Lower Canada, under one legislature, respectfully submitted to His Majesty's Government, by the agent of the petitioners for that measure (London: William Clowes, 1824), 81Google Scholar.

66. “Report of the committee on the language of writs of summons, March 11, 1826,” JHALC (1826)Google Scholar.

67. Ryland, H.W., “Observations relative to the Political State of Lower Canada” in Doughty, and McArthur, , Constitutional Documents, 349.Google Scholar

68. Aylmer to Spring Rice, November 28, 1834, PAC, M.G. II. Q. 217-2, 544.

69. See, for example, Craig, G.M., Upper Canada: The Formative Years, 1784-1841, Canadian Centenary Series (Toronto: McClelland and Stewart, 1963), 203–206Google Scholar.

70. This is not to deny the doubtless important contribution of the members of the bar as well. The same general tendency found in British judges was very likely common to many British lawyers in the colony. As M. Bibaud put it, the “avocats Anglais travaillaient de leur côté à introduire quantité de lois et de procédures anglaises”; “Essai de logique judiciaire,” Revue de législation et de jurisprudence 1 (1845–1846), 135Google Scholar, cited in Brisson, La formation d'un droit mixte, 107, note 231. This factor is harder to document, however, and would require the systematic examination of surviving collections of lawyers' private papers, or extensive work in the case files of court archives.