Editing New France (section)

==Judiciary of New France==
===Early history in New France (pre-1663)===
[[File:Constitution-of-new-france-1759.png|thumb|A chart showing the political organization of New France, {{Circa|1759}}]]
In the early stage of French settlement, legal matters fell within the [[Governor of New France]]'s purview.<ref name="Lareau 244">{{Cite book |title=Histoire du droit Canadien depuis les origines de la colonie jusqu'à nos jours, Vol. I : Domination Française |last=Lareau |first=Edmond |publisher=A. Périard |year=1881 |location=Montréal, Quebec |page=244 |url=https://books.google.com/books?id=NvE_AAAAYAAJ&pg=PA244 }}</ref> Under this arrangement, legal disputes were settled in an incoherent fashion due to the Governor's arbitrariness in issuing verdicts.

Since 1640, a Seneschal (''sénéchal''), a Judge (''juge d'épée'', which literally means 'sword-bearing judge'), and a jurisdiction in [[Trois-Rivières]] were created.<ref name="Lareau 244"/> However, the Seneschal was under the oversight by the Governor, hence the Governor still had rather extensive control over legal matters in New France.<ref name="Lareau 244"/> In 1651, the [[Company of New France]] made the Great Seneschal (''Grand Sénéchal'') the chief justice.<ref name="Lareau 244"/> However, the [[Island of Montreal]] had its special Governor at that time, who also administered justice on the Island, and had not handed over justice to the Grand Seneschal until 1652.{{sfnp|Lareau|1881|page=246}}

In practice, though, the Great Seneschal was awarded as an honorary title to the son of [[Jean de Lauson]], then Governor of New France; judicial functions were in fact carried out by the Seneschal's deputies.{{sfnp|Lareau|1881|page=245}} These deputies included such officials as the civil and criminal lieutenant general (''lieutenant général civil et criminel''), the special lieutenant (''lieutenant particulier'', acting as assistant royal judge), and the lieutenant fiscal (''lieutenant fiscal'', acting as tax magistrate).{{sfnp|Lareau|1881|page=245}}

The Civil and Criminal Lieutenant General sat as judge in trials at first instance, whereas appeals would be adjudicated by the Governor, who held the sovereign right to settle final appeals on behalf of the French king. The Great Seneschal also had a magistrate in [[Trois-Rivières]], as well as a [[bailiff]] formed by the [[Society of Priests of Saint Sulpice]] on the [[Island of Montreal]].{{sfnp|Lareau|1881|p=}}
[[File:Frontenac with the Indians.jpg|thumb|upright|[[Louis de Buade de Frontenac|Governor Frontenac]] performing a tribal dance with indigenous allies]]

Apart from judicial responsibilities, the Great Seneschal was also in charge of convening local nobility in New France, as well as issuing declarations of war if necessary.{{sfnp|Lareau|1881|page=246}} However, such alternative role of the Great Seneschal was much weakened soon after by having the rights to declare war and to administer finances stripped off from the office because the French crown feared that colonial officers held too much authority.{{sfnp|Lareau|1881|page=246}}

===Legal reforms (1663)===

====Royal judges and the Sovereign Council====
On 13 October 1663, the royal court replaced the Seneschal Office (''sénéchaussée''). Canada was divided into three districts: the district of Quebec City, the district of [[Trois-Rivières]], and the district of [[Montreal]].{{sfnp|Lareau|1881|page=247}} Each district had its own separate jurisdiction with a judge appointed by the Crown, known as the civil and criminal lieutenants general.{{sfnp|Lareau|1881|page=247}} They were responsible for all legal matters, civil and criminal, in each of the districts.{{sfnp|Lareau|1881|page=247}}

In addition to the royal judges, there were other judicial officers in each district. The clerk of court (registrar) was responsible for transcribing all court proceedings as well as other documents relevant to each of the cases.{{sfnp|Lareau|1881|p=}} The king's attorney (''procureur du roi'') was responsible for inquiring into the facts and preparing the case against the accused.{{sfnp|Lareau|1881|page=249}} In the districts of Quebec City and Montreal, the royal judges had special lieutenants to substitute them whenever they were absent or sick.{{sfnp|Lareau|1881|page=249}} Feudal courts heard minor cases.<ref>{{cite book |first=W.J. |last=Eccles |title=The French in North America (1500–1783) |location=East Lansing, Michigan |publisher=Michigan State University Press |date=1998 |page=80 |isbn=978-1-5504-1076-1}}</ref><ref>{{cite web |url=http://www.champlain2004.org/html/08/08_e.html |title=Exhibitions/Administration/The Administration of Justice |publisher=Champlain2004.org |access-date=30 June 2010 |archive-date=11 June 2011 |archive-url=https://web.archive.org/web/20110611233729/http://www.champlain2004.org/html/08/08_e.html |url-status=dead }}</ref>

The reform also brought the [[Sovereign Council of New France]] (''Conseil souverain'') into existence, which was later renamed the Superior Council (''Conseil supérieur''). The Sovereign Council effectively acted as the functional equivalent of a Council of State (''Conseil d'État'') for New France, having the authority to hand down verdicts on final appeal.{{sfnp|Lareau|1881|page=248}} Initially, the Council convened once every week, and the quorum of the Sovereign Council was seven for criminal matters, or five for civil cases.{{sfnp|Lareau|1881|page=248}} The council's practices evolved over time. At the Sovereign Council there was a king's attorney-general (''procureur général du roi'') in charge of the similar tasks as the district king's attorneys.{{sfnp|Lareau|1881|page=251}} He was also responsible for supervising the king's attorneys' daily operations as well as execution of royal edicts and regulations passed by the council in their respective districts.{{sfnp|Lareau|1881|page=252}}

====The Custom of Paris====
{{Main|Custom of Paris in New France}}
In 1664, the [[Custom of Paris in New France|Custom of Paris]] (''coutume de Paris'') was formally set as the main source of law for civil law in France's overseas empire. All royal judges and king's attorneys in New France had to be thoroughly familiar with this compilation of rules.{{sfnp|Lareau|1881|page=248}} The Custom governed various civil aspects of the daily life in New France, including property, marriage, inheritance, and so on.

=====Montreal Island: transition from feudal justice to royal justice=====
The [[Island of Montreal]] was a special case because its judiciary had been previously held by the Society of St-Sulpice. In 1663, Governor-General of New France [[Augustin de Saffray de Mésy]] originally considered appointing [[Paul de Chomedey, Sieur de Maisonneuve]] the Governor of the Island of Montreal and consolidating a royal jurisdiction on the island, but the plan garnered the [[Society of Priests of Saint Sulpice|St-Sulpicians]]' disapproval, who held the Island as its own [[fief]]dom and effectively acted as the island's governor.{{sfnp|Lareau|1881|page=253}} In other words, the [[Sovereign Council of New France|Sovereign Council]] had not been able to seize effective control over the legal matters of the Island; instead, the [[Society of Priests of Saint Sulpice|St-Sulpicians]] administered justice on the island.

It was not until 16 September 1666, that the St-Sulpicians finally handed over the justice of the Island of Montreal to the Intendant of New France.{{sfnp|Lareau|1881|page=254}} In 1693, the French king commanded the replacement of the ecclesiastical courts in Montreal with a royal court composed of one royal judge, with appeals going to the [[Sovereign Council of New France|Sovereign Council]]. The introduction of a royal court on the Montreal Island also resulted in the abolition of the feudal court in the fief of [[Trois-Rivières]] (then held by the [[Jesuits]]).{{sfnp|Lareau|1881|page=261}}

=====Quebec: founding of the Provostry of Quebec=====
In the Quebec City district, the lower court (''tribunal antérieur'') was established in 1664 and had jurisdiction to try cases at first instance, but then it was abolished in 1674.{{sfnp|Lareau|1881|page=264}} The Sovereign Council appointed trial judges (''juges inférieurs'') to adjudicate cases at first instance until the [[Provost (civil)|Provost]]ry of Quebec (''prévôté de Québec'') was created in May 1677.

The Provostry of Quebec was located in the Hall of Justice (''palais de justice'') in Quebec City and had only one royal judge, also known as the civil and criminal lieutenant general of Quebec City, who heard both civil and criminal cases, as well as district police.{{sfnp|Lareau|1881|page=264}} Additionally, a court clerk and a king's attorney were appointed to the court; if either of these two officers could not attend the trials due to illness or other untenable circumstances, the Intendant would appoint a temporary substitute.{{sfnp|Lareau|1881|page=264}}

===Criminal justice===
{{Main|Criminal justice in New France}}
In the early stages of French colonization, the execution of criminal justice in New France was rather arbitrary. The [[Governor of New France]] served as the judge to the colonists as well as soldiers. He would announce his verdict at the presence of the chiefs of the Company of One Hundred Associates and that would be final.{{sfnp|Lareau|1881|page=286}}

After the Sovereign Council was established in Quebec in 1663, the Council carried out criminal justice according to the general ordinances of France.{{sfnp|Lareau|1881|page=286}} In 1670, the [[Criminal Ordinance of 1670|Criminal Ordinance]] was enacted in New France by order of the French king as a codification of the previous criminal laws passed by the [[Sovereign Council of New France|Sovereign Council]].{{sfnp|Lareau|1881|page=282}}

===Special courts===
====Ecclesiastical court====
{{Redirect|Officialité (New France)|the ecclesiastical court|Ecclesiastical court}}
The ecclesiastical court (''tribunal ecclésiastique'', or ''Officialité'') was a special court for hearing first instance trials on both religious and secular affairs involving members of the Church.<ref name=":1">{{cite web|url=http://www.justice.gouv.qc.ca/francais/ministere/histoire/structures.htm#Anchor-LE-45838|title=Les structure judiciaire dans la justice sous le Régime français|website=Justice Québec|url-status=dead|archive-url=https://web.archive.org/web/20160303232947/http://www.justice.gouv.qc.ca/Francais/ministere/histoire/structures.htm#Anchor-LE-45838|archive-date=3 March 2016|df=dmy-all}}</ref> It first appeared in around 1660 but was not officially recognized by state authorities for it was not administered by a bishop, until 1684.<ref name=":1" /> Appeals from this court lay with the Sovereign Council.<ref name=":1" />

====Admiralty court====
The court of admiralty was created on 12 January 1717 and was the last judicial body set up in Canada during the French colonial period.{{sfnp|Lareau|1881|page=268}} The court had a judge (also known as the lieutenant-general of the court) appointed by the French admiralty, a king's attorney, a clerk of court, and one or two bailiffs (''huissiers'').{{sfnp|Lareau|1881|page=269}} The admiralty court was located in Quebec City and had jurisdiction over all of New France except [[Louisiana]] and [[Fortress of Louisbourg|Louisbourg]].<ref name=":1" /> The court heard first instance trials on maritime affairs, including commerce and seamen's conduct.<ref name=":1" /> During wartime, it also commanded maritime police.<ref name=":1" /> Before 1717, the Quebec Provostry performed the duties of the admiralty court.<ref name=":1" />

===Acadia===

Unlike Canada, [[Acadia]]'s judicial system was somewhat under-developed during the New France period. Prior to 1670, [[Acadia]] was in a state of being contested between various European colonists. None of the Euroean countries—France, England, the Netherlands—were able to put in place a stable jurisdiction there.

In 1670, France regained control of Acadia and appointed Mathieu de Goutin as the Civil and Criminal Lieutenant (''lieutenant civil et criminel'') of Acadia.<ref>{{Cite book |title=Lieutenant Civil et Criminel: Mathieu de Goutin en Acadie Française (1688–1710) |last=Vanderlinden |first=Jacques |publisher=Chaire d'études acadiennes, Université de Moncton |year=2004 |isbn=978-0-9192-4116-9 |location=Moncton, New Brunswick |page=28 }}</ref> Simultaneously, the [[Governor of Acadia]] was set up and his job was primarily the defense of [[Acadia]] from English attacks.{{sfnp|Vanderlinden|2004|page=55}} The Civil and Criminal Lieutenant was essentially supervised by the Governor, who held superior judicial authority over the Lieutenant, but for most of the time would let the Lieutenant mediate and decide legal affairs.{{sfnp|Vanderlinden|2004|page=201}}

Due to the situation in [[Acadia]] as a small settlement of around 399 settlers in 1670–71, vulnerable to foreign invasion, courts were minimal, consisting of only a Civil and Criminal Lieutenant and a king's attorney.{{sfnp|Vanderlinden|2004|page=55}} There was not an official court in [[Acadia]], although the king's attorney of Acadia performed very similar duties as his counterpart in New France.{{sfnp|Vanderlinden|2004|page=69}} Yet since [[Acadia]] never actually had a court, there was no clerk of court; instead, trials were recorded by a local [[Civil law notary|notary]].{{sfnp|Vanderlinden|2004|page=69}} It is difficult to trace the judicial history of French Acadia as the relevant archives were destroyed in a fire in 1708.{{sfnp|Vanderlinden|2004|page=69}}