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Possession and Dispossession in Corporate New France, 1600–1663: Debunking a “Juridical History” and Revisiting Terra Nullius

Published online by Cambridge University Press:  06 February 2014

Edward Cavanagh
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Following Jacques Cartier's voyages up and down the St. Lawrence River in 1534, 1535–36 and 1541–42, French interest in the region surged. This interest was confined to the region's potential deposits of minerals, and then diverted realistically to the trade of furs, before ultimately, during the seventeenth century, it diversified to take into account the prospect of agricultural smallholding. So confined, this interest did not account for customary tenure and systems of property relations among indigenous inhabitants; generally these were matters avoided by merchants, traders, missionaries, and early settlers until the expediencies of settlement on the ground required otherwise. These were matters for which, in New France, the companies in charge devised no coherent policy. These were matters for which, at home, the French Crown was no beacon of advice either, meting out meager and inconsistent policies of empire before 1663, preferring instead to endorse trade monopolies while preparing for disputes with neighboring nations with competing designs to the New World.

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Law and History Review , Volume 32 , Issue 1 , February 2014 , pp. 97 - 125
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Copyright © the American Society for Legal History, Inc. 2014 

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References

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15. Greer, “Dispossession in a Commercial Idiom.”

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20. This is certainly signalled by the title of Jaenen's article (“French Sovereignty and Native Nationhood”). This inequality of interpretation also manifests in his definition of property, which relates not a “bundle of rights” but an idiosyncratic and restrictive reading of European ideas that are neither distinctly French civil nor distinctly English common (Jaenen, “French Sovereignty,” 103).

21. See also Slattery, “Understanding Aboriginal Rights,” 768–69; and Jaenen, Cornelius J., The French Relationship with the Native Peoples of New France and Acadia (Ottawa: Research Branch, Indian and Northern Affairs Canada, 1984)Google Scholar, esp. 41–47.

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23. Banner, Stuart, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Harvard University Press, 2005)Google Scholar. See also Banner, Possessing the Pacific, comprising perhaps the best attempt to explain why specific land policies were implemented in different sites. A complementary appraisal can be found in Weaver, John C., The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal and Kingston: McGill–Queens University Press, 2003)Google Scholar.

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26. For example, Slattery, “French Claims'; Eccles, “Sovereignty–Association,” 475 n1; Jaenen, “French Sovereignty,” 98; Barber, Lloyd I., “Indian Land Claims and Rights,” in Les Facettes de l'Identite Amerinidienne/The Patterns of Amerindian Identity, ed. Tremblay, Marc Adelard (Québec: Presses de l'Université Laval, 1975), 67Google Scholar; and Huppé, Luc, “L'Établissement de la Souveraineté Européenne au Canada,” Les Cahiers de Droit 50 (2009): 153–206Google Scholar.

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28. Slattery, Land Rights, 66–124; see below, note 40.

29. For perhaps the most persuasive argument about dispossession from the metropolitan/monarchic perspective, consult Macmillan, Sovereignty and Possession.

30. Trigger, Bruce, Natives and Newcomers: Canada's “Heroic Age” Reconsidered (Montreal and Kingston: McGill–Queens University Press, 1985)Google Scholar.

31. Biggar, Henry Percival, The Early Trading Companies of New France: A Contribution to the History of Commerce and Discovery in North America (Toronto: University of Toronto Library, 1901)Google Scholar.

32. Eccles, “Sovereignty–Association,” 479, 481.

33. For the Treaty of Tordesillas in its global context, consult Benton, Lauren, “Possessing Empire: Iberian Claims and Interpolity Law,” in Native Claims: Indigenous Law against Empire, 1500–1920, ed. Belmessous, Saliha (Oxford: Oxford University Press, 2012), 19–40Google Scholar. Benton suggests that a concern with possession (as a means to securing dominium) figured prominently in Spanish and Portuguese ideologies of empire in this period. For Benton, “historians have exaggerated the idiosyncratic nature of Iberian legal rationales for the acquisition of empire as centering on arguments about papal authority, a preoccupation with rights to people, or assertions about a right to trade based on natural law” (35).

34. Henri de Montmorency bluntly justified his King's opinion to the Spanish ambassador as follows: “to uninhabited lands, although discovered, anyone may go.” Emperor to the Cardinal of Toledo (November 11–13, 1540), in A Collection of Documents Relating to Jacques Cartier and the Sieur de Roberval, ed. Biggar, Henry Percival (Ottawa: Public Archives of Canada, 1930)Google Scholar, 141.

35. Judicial thinker and diplomat Robert Beale, referring to the bulls, put it this way: “So as this donation of that which is anothers, which in right is nothing worth, and this imaginary propriety, cannot let, but that other Princes may trade in those Countries, and without breach of the Law of Nations, transport Colonies thither, where the Spaniards inhabite not, forasmuch as prescription without possession is little worth, and may also freely navigate that case Ocean, seeing the use of the Sea and Ayre is common to all. Neither can any title to the Ocean belong to any people, or private man; forasmuch as neither Nature, nor regard of the publicke use permitteth any possession thereof.” Quoted in Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order (Oxford and New York: Oxford University Press, 1999)Google Scholar, 112.

36. Argall's crackdown on competing royal letterheads is fascinating, but dominium was not the main issue here. The key distinction to be observed here is between land and prize. Immovable land was always treated differently from booty, and sensibly too, given the different challenges in terms of logistics, value, and jurisdiction posed by each. Speaking generally, whereas pirates, like competing traders, sometimes produced letters of marque and commissions to escape prosecution for stealing reserves, razing posts, and claiming a fleet's cargo as prize, these documents empowered no privateer to claim disputed lands in the names of monarchs, or excavate great chunks of earth (and, with designs of profit in mind, it is unlikely they would be inspired to anyway). See Lauren Benton, Search for Sovereignty, 112–20; and Benton, Lauren, “Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism,” Comparative Studies in Society and History 47 (2005): 700–24Google Scholar.

37. Macmillan, Sovereignty and Possession, 194–200.

38. For the impact of these treaties on French sovereignty in the New World, see Huppé, “L'Établissement de la Souveraineté,” 179–84.

39. Prowse, D. W., A History of Newfoundland from the English, Colonial, and Foreign Records (London and New York: Macmillan, 1895), 99–100Google Scholar.

40. Contra Slattery, for whom “[t]he French Crown thus implicitly asserts title to the entire eastern sector of North America” in the 1627 charter: Slattery, Land Rights, 85–86. This would appear to contradict, if not require serious qualification as a result of, his observations regarding aboriginal title and French rule in his later article, “Understanding Aboriginal Rights,” 768–69.

41. Relevant extracts from commissions and letters patent between 1598 and 1603 are reproduced in Girard, Camil and Gagné, Édith, “Première Alliance Interculturelle: Recontre entre Montagnais et Français à Tadoussac en 1603,” Recherches Amérindiennes au Québec 25 (1995): 10–11Google Scholar. For the Compagnie de la Nouvelle–France charter of April 29, 1627, consult Edits, Ordonnances Royaux, Declarations et Arrêts du Conseil d'État du Roi Concernant le Canada (Québec: E. R. Fréchette, 1854): 5–11Google Scholar.

42. Biggar, Early Trading Companies, 43–4.

43. de Champlain, Samuel, Oeuvres de Champlain, 2nd ed., ed. Laverdière, C.-H (Québec: Imprimé au Séminaire, 1870), 2:71Google Scholar. Anadabijou had learned this about the French King from discussions with his representatives whom François Gravé du Pont had earlier sent to Paris. See Elsie McLeod Jury, “Anadabijou,” Dictionary of Canadian Biography, http://www.biographi.ca/009004-119.01-e.php?BioId=34142 (May 21, 2013).

44. Girard and Gagné, “Première Alliance Interculturelle,” 3.

45. Trudel, Marcel, The Beginnings of New France, 1524–1663, trans. Claxton, Patricia (Toronto: McClelland and Stewart, 1973), 76Google Scholar; and Trudel, Marcel, Histoire de la Nouvelle–France: Les Vaines Tentatives, 1524–1603 (Montreal: Fides, 1963), 268Google Scholar.

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47. Eccles, “Sovereignty–Association,” 480; Lajoie, Andrée and Verville, Pierre, “Les Traités d'Alliance entre les Français et Les Premières Nations sous le Régime Français,” in Lajoie, Andrée, Brisson, Jean-Maurice, Normand, Sylvio, and Bissonnette, Alain, eds. Le Statut Juridique des Peuples Autochtones au Québec et le Pluralisme (Québec: Les Editions Yvon Blais Inc., 1996)Google Scholar, 161. For these authors, “the French” sought to acquire, in this alliance, the permission to construct an establishment at Tadoussac in 1603,” a strategy that would eventually extend “to Québec in 1608.”

48. Eccles, “Sovereignty–Association,” 480.

49. John Locke, The Second Treatise of Civil Government, ch. 5, sect. 27; and Weaver, Great Land Rush, esp. 46–48, 81–87, 216–26, 348–60.

50. Trudel, Beginnings of New France, 164.

51. Trigger, Children of Aataentsic, 1:286.

52. Davenport, Francis Gardiner, ed. European Treaties Bearing on the History of the United States and its Dependencies, (Washington, DC: Carnegie Institution, 1917–37), 1:315–23Google Scholar. See for context, Biggar, Early Trading Companies, 148–66. For the initial grant of Port Royal to Poutrincourt in 1604, see Trudel, Beginning of New France, 85.

53. European Treaties Bearing on the History of the United States and its Dependencies 2:132–42. See, for context, Slattery, Land Rights, 126–32.

54. As the seventeenth century became the eighteenth, England and France tussled among themselves and both sought to bolster their claims, to the detriment of Algonquian and Iroquoian communities. England had been experimenting with this method since the early seventeenth century, as Ken MacMillan has shown, and by the mid-eighteenth, she had just started to perfect it. France emulated. As Jaenen notes, formal claims to land in New France during the period of royal government “appear to have been directed more at European competitors than at Amerindians who were theoretically becoming French subjects.” Such was the state of play in Québec after the period of company rule and during the period of royal administration from 1663 to 1759. Jaenen, “French Sovereignty,” 96; and MacMillan, Sovereignty and Possession.

55. Rose, Carol M., “Economic Claims and the Challenges of New Property,” in Property in Question: Value Transformation in the Global Economy, ed. Verdery, Katherine and Humphrey, Caroline (Oxford: Berg, 2004)Google Scholar, 279.

56. Trigger, Children of Aatentsic, vol. 1, chapter 5.

57. Biggar, Early Trading Companies, 90–100; Trigger, Children of Aatentsic, 1: 296–305.

58. Oeuvres de Champlain, 5:1064.

59. Biggar, Early Trading Companies, 129.

60. Trigger, Natives and Newcomers, 276–81.

61. Hunt, George T., The Wars of the Iroquois: A Study in Intertribal Relations (Madison: University of Wisconsin Press, 1972 [1940]), 23–37Google Scholar, 66–86. See also Jennings, Francis, The Ambiguous Iroquois Empire: The Covenant Chain Confederation of Indian Tribes with English Colonies from its Beginnings to the Lancaster Treaty of 1744 (New York: Norton, 1984)Google Scholar; Trigger, Natives and Newcomers; Richter, Daniel K., The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era of European Colonization (Chapel Hill: University of North Carolina Press, 1992)Google Scholar; and Brandão, José António, “Your Fyre Shall Burn No More”: Iroquois Policy Toward New France and Its Native Allies to 1701 (Lincoln: University of Nebraska Press, 1997)Google Scholar.

62. de Saint–Père, Rameau, Une Colonie Féodale en Amérique L'Acadie (1604–1881) (Montréal: Granger Frères, 1889)Google Scholar, 1:51; and Trudel, Beginnings of New France, 85.

63. Oeuvres de Champlain, 5:729–30.

64. Biggar, Early Trading Companies, 105; and Trigger, Natives and Newcomers, 324.

65. Harris, Richard Colebrook, The Seigneurial System in Early Canada: A Geographical Study (Kingston and Montreal: McGill–Queens University Press, 1984), 20–25CrossRefGoogle Scholar.

66. These Iroquois were mostly identified as Mohawks, although sometimes Oneida and Onondaga. Perhaps it is worth speculating whether or not these “raiders” had old links to Stadacona and Hochelaga.

67. JR, 29:47–60, 31:56–144.

68. Perrot, Nicholas, Memoire sur les Moeurs, Coustumes et Relligion des Sauvages de l'Amerique Septentrionale, ed. Tailhan, R. J. (Leipzig and Paris: Librairie A. Franck, 1864), 94–95Google Scholar. There is some doubt about the nomenclature of Perrot's account, who suggests the priest was Father Allemand and that the chief in question went by the name of “La Borgne.” Trigger, rather, suggests the chief was Tessouat, and both he and Eccles suggest the priest was Father Ragueneau and not Allemand. See Trigger, Children of Aataentsic, 2:785; and Eccles, “Sovereignty–Association,” 499, n108.

69. JR, 6: 35–43.

70. “Lettres Patentes qui Confirment la Concession de Sillery aux Savages,” in Les Jésuites et la Nouvelle–France aux XVIIe Siècle, d'Apres Beaucoup de Documents Inédits, ed. de Rochemonteix, Le Camille (Paris: Letouzey et Ané, 1895)Google Scholar, 1:467, 468–69. See also Gérin, Léon, “La Seigneurie de Sillery et les Hurons de Lorette,” Des Memoires de la Societe Royale du Canada 6, 1 (2nd series, 1900): 83–84Google Scholar.

71. Stanley, George F. G., “The First Indian “Reserves” in Canada,” Revue d'Histoire de l'Amérique Française 4 (1950): 185Google Scholar. For Stanley, French Canada was settled like terra nullius: “At no time was there any recognition on the part of the French crown of any aboriginal proprietary rights in the soil. The French settler occupied his lands in Canada without any thought of compensating the native. There were no formal surrenders from the Indians, no negotiations, and no treaties such as marked the Indian policy of the British period” (209).

72. Stanley, “First Indian ‘Reserves’,” 184.

73. Dechêne, Louise, Habitants and Merchants in Seventeenth–Century Montreal (Montreal and Kingston: McGill–Queen's University Press, 1992 [1974 ])Google Scholar, 11.

74. Between 1642 and 1653, the Society de Notre–Dame spent a fortune on indentured laborers to clear the land, which brought it close to bankruptcy. According to Trudel, however, the initial failure of this church establishment is attributable to two factors: “the instability of the backers of this new enterprise, and the incursions of the Iroquois” (190). Only from the late 1650s did private interests emerge, slowly instigating its transformation into a site of settlement and merchant capital. But this was before a violent Iroquois attack on habitants in 1661, in which “even the women fought to the death” against their indigenous enemies. Trudel, Beginnings of New France, 188–89. The best study of seventeenth century Montreal, however, remains Dechêne, Habitants and Merchants.

75. See map at Harris, Cole, The Reluctant Land: Society, Space, and Environment in Canada before Confederation (Vancouver: UBC Press, 2009)Google Scholar, 94.

76. The Royal Proclamation of 1763, and associated instructions issued to Governor Murray, have been identified as a source of aboriginal title Québec; for some, these offer proof that indigenous communities retained sovereignty over and title to the whole region, and that their independence remained strong enough to endure well into the nineteenth century. See, for example, Jaenen, “French Sovereignty,” 105; Eccles, “Sovereignty–Association,” 505–6, 510; Morin, Michel, L'usurpation de la Souveraineté Autochtone: Le Cas de Peuples de la Nouvelle–France et des Colonies Anglaises de l'Amerique du Nord (Montreal: Boreal, 1997), esp. 61, 138–39Google Scholar; and Slattery, Brian, “The Hidden Constitution: Aboriginal Rights in Canada,” American Journal of Comparative Law 32 (1984): 370CrossRefGoogle Scholar, 373. For an overview of “juridical history” interpretations of the “Murray Document,” see Vaugeois, Denis, The Last French and Indian War: An Inquiry into a Safe–Conduct Issued in 1760 that Acquired the Value of a Treaty in 1990, trans. Roth, Kathe (Kingston and Montréal: McGill–Queens University Press, 2002), 127–69Google Scholar; and Beaulieu, Alain, “‘An Equitable Right to be Compensated’: The Dispossession of the Aboriginal Peoples of Québec and the Emergence of a New Legal Rationale (1760–1860),” Canadian Historical Review 94 (2013): 2–11Google Scholar. The quoted phrase comes from Calloway, Colin G., The Scratch of a Pen: 1763 and the Transformation of America (Oxford: Oxford University Press, 2006)Google Scholar.

77. Beaulieu, “An Equitable Right to be Compensated,” 27.

78. This may partially explain why it has taken so long for the historiography of New France to shake off the inaccuracies of the “juridical history” school: placid Franco–Aboriginal encounters suit conventional narratives of “la thèse décapitation” (the decapitation thesis). This thesis first breathed life with the nineteenth century claim that the removal of organic ruling classes, and their replacement with a foreign and more powerful bourgeoisie, subordinated French society within a regime not of its own making. It would be developed in the 1950s by historians such as Guy Frégault, Michel Brunet and Maurice Séguin, with important precursors in Francis Xavier–Garneau and Abbé Lionel–Groulx. As an idea, it has influenced the studies of subjects as diverse as women's history (e.g., Noël, Jan, “New France: Les Femmes Favorisées,” Atlantis 6 [1981]: 80–98Google Scholar) and demographic and emigration history (e.g. Choquette, Leslie, Frenchmen into Peasants: Tradition and Modernity in the Peopling of French Canada [Boston: Harvard University Press, 1997]Google Scholar). Aboriginal history has not escaped: the decision, in 2004, to restrict the Chaire de Recherche du Canada sur la Question Territoriale Autochtone at Berri–UQAM to the period following 1759 represents perhaps the most stunning example of this. See their web site, http://www.territoireautochtone.uqam.ca/ (February 1, 2013).

79. See above, footnote 76.

80. See, especially, White, Richard, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (Cambridge and New York: Cambridge University Press, 1991)CrossRefGoogle Scholar.