THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES GIFT OF Mrs. William B. Monroe 1 THE SOVEREIGN COUNCIL OF NEW FRANCE ^ STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY Volume LXV] [Number 1 Whole Number 156 THE SOVEREIGN COUNCIL OF NEW FRANCE A Study in Canadian Constitutional History BY RAYMOND DU BOIS CAHALL, PH.D. One-time Fellow in Modern European History Columbia University Acting Assistant Professor of European History and Government Miami University $)ork COLUMBIA UNIVERSITY LONGMANS, GREEN & CO., AGENTS LONDON : P. S. KING & SON, LTD 1915 COPYRIGHT, 1915 BY RAYMOND DU BOIS CAHALL College Library ': TO MY MOTHER WHOSE SUPPORT AND ENCOURAGEMENT MADE POSSIBLE THIS STUDY IT IS AFFECTIONATELY DEDICATED 1043940 PREFACE IN the summer of 1911, Professor Carlton Hayes, while at the University of Chicago, called my attention to the dearth of information about the government of Canada under French rule. In the present study, I have confined myself to the Sovereign Council and the officials con- nected with it, in the hope that similar studies will be written by others dealing with the Governor, the Intend- ant, and the inferior courts of New France. This mono- graph is designed by its copious footnotes in the original and by frequent references to sources to save the future historians of Canada the trouble of sifting a large mass of material. The core of the work consists of the last four chapters, which treat of the organization, procedure, functions, and actual achievements of the Sovereign Council. The ear- lier chapters are designed to describe the events which increased or diminished the power of the Council and to acquaint the reader with the personality of the actors. A disproportionate amount of space is given to the two administrations of Frontenac, because during those years the disputes of greatest significance occurred. Owing to the number of these, several cases have been relegated to appendices. It is with great pleasure that I take this opportunity to thank those who have shown interest in this modest enterprise. I am grateful to Professor James Harvey Robinson for his careful revision of the proof, to Profes- sor James T. Shotwell for reading portions of the manu- 71 7 8 PREFACE [S script, and to Professor Edwin R. A. Seligman for co- operating in the publication. I am deeply indebted to Professor Herbert L. Osgood of Columbia University and Professor W. B. Munro of Harvard University for the most helpful criticisms. Among several kind librar- ians and archivists, my thanks are especially due to Dr. A. G. Doughty, Dominion Archivist, and Mr. Parker, Keeper of Manuscripts in the Archives at Ottawa. Finally I wish to express my deep gratitude to Mrs. William F. Pierce of Gambier, Ohio, for the important part which she has had in the revision of the manuscript. R. D. B. C. MIAMI UNIVERSITY, January 2, 1915. TABLE OF CONTENTS CHAPTER I PAGE THE CREATION AND EARLY HISTORY OF THE COUNCIL Importance of the Sovereign Council in Canadian history 13 The Council of 1647 14 Representative character of the Council of 1648 15 Its wide participation in administration . . 16 King dissatisfied with Governor's administration of justice .... 17 With his policy towards the Indians 18 With the Company of One Hundred Associates IQ King resumes Colony . . . 20 Sovereign Council established in 1663 21 Not a representative assembly 22 Triumph of the ecclesiastics 22 First measures of the Council 23 Action against Peronne Dumesnil 24 Dissension over election and installation of a Syndic of Quebec . . 26 Unconstitutional removal of Councillors by M6sy 29 Company of the West Indies administers New France 34 Slight influence upon the Council . . 36 Reorganization, and dominance of Talon. . 36 CHAPTER II THE SOVEREIGN COUNCIL AT ITS HEIGHT Frontenac's inaugural address 43 His great influence 44 Trial of his enemy, Jean Perrot 45 Also of the Abbe Fenelon 46 Loses control of the Council 51 Councillors obtain royal commissions 51 Intendant supplants Governor as President of the Council 52 The Council and the ecclesiastics, honors in church 52 The Rolland case 55 Frontenac attempts to retain title of President ... 58 Banishes recalcitrant Councillors 63 Is denied title by Council, and by King 65 9l o 10 CONTENTS [ I0 P\GE Governor replaced by Dean as Vice-President of Council 68 Council attempts to include the Governor in its jurisdiction. ... 69 Frontenac vs. Villeray 69 Case of Vaultier 70 Mathieu Damours . 71 Drastic policy of the Council towards the Coureurs de Bois .... 72 Council asserts jurisdiction beyond the established courts 74 Attempts to cut off appeals to the King 75 Regulates coinage without Governor's advice 76 Important measure taken without Governor and Intendant annulled by the King 80 Peaceful days for the Council 81 Return of Frontenac, honors of his reception 84 Trial of Mareuil, delivered from Council's jurisdiction by Frontenac. 85 Death of Frontenac 93 CHAPTER III THE COUNCIL IN THE EIGHTEENTH CENTURY Ecclesiastical influence, conflict of ordinance and mandate in the Gosselin case 95 Partiality towards Coureurs de Bois, the De Louvigny case. ... 97 Change of name to Superior Council 102 Councillors in trade-evil effects 102 Attempt to break wheat monopoly in absence of Governor and Intendant, the Council rebuked 107 Attempt of the Council to judge a grave ecclesiastical dispute in 1727. no Action of the Governor annulling its decrees and ordering authori- ties not to receive them 114 Intendant maintains supremacy of the Council in affairs of justice . 115 Banishment of Councillors . 116 Intendant unsupported at French court 116 Submission of the Council ,.. 117 The last days of the Superior Council 120 CHAPTER IV THE MEMBERSHIP AND ORGANIZATION OF THE COUNCIL Personnel . 122 Appointment 125 Qualifications 130 Tenure of office .... 132 Emoluments, salaries, fees, pensions 133 Honors and privileges 138 The Governor and the Council 144 The Intendant 148 n] CONTENTS u FAGB The Bishop 151 The First Councillor 154 The Attorney-General 155 Other officers 159 CHAPTER V METHODS OF PROCEDURE OF THE COUNCIL Time of sessions 161 Place of sessions 162 Quorum 166 Ceremonial 167 Judicial procedure 170 The committee system 174 Advantages 175 Disadvantages 176 Records 178 Catalogues and archives 179 Promulgation of decrees 181 CHAPTER VI THE FUNCTIONS OF THE COUNCIL Separation of powers not part of the French government 184 The legislative power of the Council 185 Registration unnecessary to legalize the great French ordinances . 186 Necessary for other royal laws 189 Necessary for deeds, commissions, etc 190 King holds it to be necessary 191 The Council as an administrative body. . 192 The power to determine expenditure 194 To regulate the trade with the Indians 196 The trade between French and Canadians 198 The power to make police regulations governing good order, pub- lic health, and safety 198 Gradual loss of this power 199 Right to erect courts 202 Supervision of lower courts . - 203 The Council as an executive body 205 The Canadian court system 207 Checks upon the Council's judicial power 211 Limited by delegation of power to Intendant 212 By appeals to France 214 12 CONTENTS [i 2 PACK CHAPTER VII THE ADMINISTRATIVE AND JUDICIAL ACHIEVEMENTS OF THE COUNCIL Failure to effect wider cultivation of the soil 216 Measures encouraging agricultute 218 Against monopoly prices of seed wheat. 219 Facilitating the sale of crops. . 220 The Council opens the Indian trade to all 223 Number of Coureurs de Bois cut down ... 225 Restrictive policy towards French merchants, their profits fixed by the Council 226 Atlantic trade opened to Canadians 230 French merchants excluded from retail and Indian trade 231 Markets established 232 Currency measures . 234 Prices fixed upon recommendation of an assembly of citizens . , . 235 Great difficulty in having roads built and streets made passable . 237 Moderate success in cleaning up Quebec 240 Measures against green and diseased meats . . 243 Failure to obtain pure water supply or establish system of quarantine. 243 Measures aimed at preventing fires 245 Failure to establish an effective fire-fighting system 247 The prevention of crime, measures against beggars 248 System of poor relief 249 Measures against runaway servants 250 Nature of crimes and the need of drastic repressive measures . . . 252 Criminal cases quickly dispatched 254 Council more merciful than lower courts 254 Terrible sentences sometimes meted out 256 Civil justice administered cheaply and without long delays .... 259 CHAPTER VIII APPENDICES TO CHAPTER II 261 BIBLIOGRAPHY 271 CHAPTER I THE CREATION AND EARLY HISTORY OF THE COUNCIL THE picturesque history of Canada, dealing with the deeds of hardy adventurers in the depths of the forest- clad interior or on the outskirts of Dutch and English settlement, has not been neglected. With the Governor of New France we are accustomed to associate the war expedition, the pipe of peace, and the courtly ceremonies of the Chateau St. Louis, that miniature Versailles. In the same way our idea of the Intendant is colored by the turbulent quarrels into which a few Intendants were drawn, and by the spectacular corruption and magnificence which constituted the crime of the unspeakable Bigot alone. Owing to the love of the thrilling and the pictur- esque, the administrative side of Canadian history has hitherto been inadequately presented. It remains to be shown that the Governor and Intendant spent their time in other occupations than Indian fighting or quarreling with each other ; that they shared in the prosaic routine of the domestic government of Canada : and that, in this capa- city, they were associated together in an institution which has heretofore almost escaped the attention of the histor- ian. Since this institution of which they were members labored quite as much as they for the preservation of property and the maintenance of good order, no consti- tutional history of New France should any longer be silent as to the history and functions of the Sovereign Council of Quebec. This Council functioned from 1663 until the English Conquest but was especially active in administrative and 13] u I4 THE SOVEREIGN COUNCIL OF NEW FRANCE [ I4 judicial achievement during the seventeenth century. Before taking up the more interesting work of analyzing its procedure and functions, and estimating its value to Canada, I shall trace the history of its formation, grow- ing importance, and decline. The reader who is tempted to conclude from these nar- rative chapters that struggles for personal power and broader conciliar jurisdiction made up the life of the Council, has only to turn to the later chapters to realize his mistake ; the achievements there chronicled could only result from scores of meetings undisturbed by any dispute. It is with the warning not to take the constitu- tional struggles to be described as typical of the every- day work of the Council, that the opening chapters are introduced. The Sovereign Council of New France was the third form of Council given to the Colony. Its predecessors were designed both to aid and check the Governor. Long before an Intendant arrived in Canada, the French gov- ernment had placed a check upon the autocratic tenden- cies of the colonial Governor, by associating with him the Superior of the Jesuits and the local governor of Montreal. This action was the result of a careful inves- tigation of representations made by the chief inhabitants of Canada and by the directors of the Company of One Hundred Associates. The Royal Regulation of March 27, 1647, provided that a Council of three, or their deputies, should supervise the detailed administration of the colony and see that the duties of all special officers were properly performed, without using their offices for their own private benefit. The Council was given wide appointive powers and was also to serve as an auditing board. Syndics, that is, persons who looked after the business interests of a city, were to be elected I5 ] THE CREATION AND EARLY HISTORY each year in Quebec, Montreal, and Three Rivers, and were to appear in the Council whenever their affairs de- manded consideration. 1 But the inhabitants of Canada desired some representa- tion in the Council and they objected to the financial burden imposed upon them. Accordingly on March 5, 1648, a Royal Warrant was issued altering the constitu- tion of the Council. 2 Thenceforth it was ordinarily to consist of the Governor, the Superior of the Jesuits, - until the arrival of a bishop in Canada - and the retiring Governor. In addition there were to be two inhabitants elected every three years by these officers and by the syndics of Quebec, Montreal, and Three Rivers. Where the Governor was retained for a second term of three years, three inhabitants might be elected in this manner to complete the number of five. Although the document named the inhabitants who were to serve for the first three years, it is probable that at the first election in 1651 the three syndics, who were themselves elected by the people, elected their nominees, since they cast three out of the five votes. Thus was a popular element introduced into the early government of Canada. The Warrant of 1648 granted wide powers to the Coun- cil, which was to have the disbursement of the public funds, the regulation of the police, the right to grant or refuse permission to syndics, attorneys, etc., to borrow money, and the right to appoint the captains of the vol- unteers. 3 1 Collection Moreau de St. Mery, series F iii, vol. iii, p. 169, et seq. 1 La Chesnaye says in 1676 that this action was taken in consequence of mutual complaints of Governor Avaugour and various families. Collection de Manuscrits de Nouvelle France, vol. i, p. 250. * Coll. Moreau St. Mery, series F iii, vol. i, p. 184, et seq. For para- phrases of the decrees establishing the Councils of 1647 and 1648 in English, see A. Shortt and A. G. Doughty, Canada and its Provinces, vol. i, p. 328, et seq. !6 THE SOVEREIGN COUNCIL OF NEW FRANCE The records of this Council have been lost but we have various accounts of its activity. 1 La Chesnaye, for example, tells us how the Council was installed and began its work. As an administrative body, it sent out ambas- sadors, decided peace and war and issued ordinances. 2 As a judicial body, it entertained appeals from the local court of Three Rivers and the ecclesiastical jurisdiction of the Sulpitians at Montreal. From its judgments appeal might be carried to the Parlement of Rouen. 3 The historian Charlevoix, not knowing how this Coun- cil was constituted, describes it as an informal body, called upon exceptional occasions to advise the Governor. "But," he observes, "this Council was not permanent: the Governor General established it by virtue of the power conferred on him by the king, and changed it as he saw fit ", 4 This description is not accurate. The Council functioned more widely, and was more stable in its or- ganization than Charlevoix indicates. It met in the absence of the Governor. 5 It participated in the most 'A few scanty records are found in Coll. de Man. de Nouv. fr., vol. i, p. 128. The record for a meeting on June 20, 1651, reads as follows: " Le Conseil assemble a neuf heures du matin ou ont assiste Mon. le Gouverneur, le Rev. Pere Superieur, Messieurs de Godefroy et Mencil." 'For the Council's share in the negotiations of 1651 with New Eng- land, see Coll. de Man. de Nouv. Fr., vol. i, pp. 127-129. 3 La Tour's description of this Council tallies with references to it in Jugements et Deliberations du Conseil Souverain. See La Tour, Mhnoire de la Vie de M. de Laval, book vii. On the other hand, Kingsford, History of Canada, vol. i, p. 191, says "with appeal to the King alone." * Charlevoix, History of France (Shea's edition), vol. i, p. 67. 5 The Sieur de la Tesserie is spoken of as " cedevant . . . chef du Conseil en 1'absence de Monsieur d'Avaugour." Jugements et Delib., vol. i, p. 281. I7 ] THE CREATION AND EARLY HISTORY ^ important business of government. 1 In fact its partici- pation was deemed to be so necessary to the legality of an act, that a grant of trading privileges made without it was declared by its successor, the Sovereign Council, to be null and void. 2 The same organization of the Coun- cil was maintained until its abolition in 1663. Argenson, the third Governor during its existence, " preserved the Council as it was established ". 3 Nor is there any evi- dence until 1662, when Avaugour changed the personnel of his Council, that tenure of office was precarious. Ac- cording to the Royal Warrant of 1648 others than the Governor shared the power of appointing Councillors. Arbitrary removal by the Governor was thus in some measure provided against. There is little doubt that the Governor upon occasion dominated the Council, neg- lected to consult it and arrogated to himself its judicial powers, 4 but nevertheless the " ancien conseil" could function and did function independently of him and in his absence. 5 It was not merely a Governor's Council. J The treaty with the merchants of Rouen in 1660 to supply the colony at a fixed profit was made " a la priere du Gouverneur [et] du Conseil du pais." Memoir of La Chesnaye, Coll. de Man, de Nouv. fr., vol. i, p. 251. * " Le diet Sieur Davaugour de son authorite n'a pu faire le diet traicte de ferme dont est question sans 1'advis du Conseil estably par le Roy a Quebecq." Jugements et Delib., vol. i, pp. 10-12. 3 Coll. de Man. de Nouv. Fr., vol. i, p. 251. 4 Charlevoix, vol. i, p. 371, says that Avaugour had acquired a reputa- tion for wise judgments based upon natural equity rather than upon law. 5 A record of January, 1664, in Jugements et Delib., vol. i, p. 94, is interesting: " II est bien vray que 1'este dernier apres le depart dufsieur Davaugour ceux qui tenoient le Conseil sous 1'authorite du sieur de la Tesserie avoient faict un tarif [allowing French merchants 50 per cent profit] sans appeler aucun des diets merchands." This is perhaps an exceptional case. Avaugour was on his way to France, and the new government had not yet been formed. jg THE SOVEREIGN COUNCIL OF NEW FRANCE Its members were bound directly to each other, not through him. It was not ambitious and yet it played a considerable part between 1648 and 1663. Shortly after Louis XIV began his personal reign, agitation was started for a second change in the compo- sition of the Council. There were several reasons on the King's part for taking such action. In the first place, he was dissatisfied with the administration of justice in the colony. In his secret instructions to Gaudais, who was sent out to Quebec to help install the new Council and watch its workings and the attitude of the people towards it, the minister said : " Up to the present there has been in that colony no regular system of justice the authority of which was universally recognized, and through the weakness of character of those who were charged with rendering justice, the judgments which were pronounced were generally unexecuted. Therefore, His Majesty resolved some time ago to create a Sover- eign Council in the said country "." The Governor in his individual capacity had drawn to himself many judicial powers to the detriment of the Council. During Avaugour's administration the Gover- nor rather than his Council became the legal court of appeals; for in 1651, the Company of New France had decided that ordinary justice should be administered under the headship of a Grand Senechal, in first instance by a lieutenant-general, and, upon appeal, by the Gover- nor General, who was empowered by His Majesty to judge finally. 2 In 1659 the King ordered resort in first instance for all civil, criminal, and police actions demand- ing prompt and exemplary punishment, to be had to the 1 Edits et Ordonnances, vol. iii, p. 26. *Doutre et Lareau, Le Droit Civil Canadien, vol. i, p. 38. I9 ] THE CREATION AND EARLY HISTORY ig local judges established by the Company, and upon appeal to the Governor 1 . There were many enemies of the Governor to point out the abuses of this system and to influence the King to create as supreme court of appeals a body of which the Governor should be but one, with the vote of an ordinary member. In the second place, the King was influenced by the ecclesiastics. Among those who called loudest for a change and for the recall of Governor Avaugour were Bishop Laval and the Jesuits 2 , and the chief cause for these demands was the question of the traffic in liquor with the Indians. Hitherto the ecclesiastical power had dominated the colony, but in 1661 the Governor, partly by chance, partly by intention, found himself in opposition to the ecclesiastics upon the matter of barter- ing brandy for skins. On May 5, 1660, the Bishop had excommunicated those who persisted in the sale of liquor to the Indians 3 . He had obtained a law punishing such sales with death. Shortly after he assumed control Avaugour had been forced to shoot two men and flog another for transgressing this law 4 . But when a woman was caught in such traffic and was protected by the Jes- uits, the Governor was exasperated. The ecclesiastics had insisted upon punishment : now they withheld from punishment. The Governor declared that he would be 'Deutre et Lareau, op. tit., vol. i, p. 44. s Says La Tour in his Memoires de la Vie de M. de Laval, book vii: " Quoique 1'etablissement d'une cour souveraine ne soit pas du ressort de 1'Eglise, le Conseil souverain de Canada fut 1'ouvrage de son premier eveque," and the King confessed in his instructions to Talon that the Jesuits had complained so often of Avaugour that he had resolved not only to recall him but to permit them to choose his successor. Coll. de Man. de Nouv. Fr., vol. i, p. 177. 3 Mandements des Eveques de Quebec, vol. i, p. 14. * Journal des Jesuites, October 7, 1661. 20 THE SOVEREIGN COUNCIL OF NEW FRANCE [ 2O no respecter of persons : none should henceforth be punished for bartering liquor with the Indians. About him grew up such a party that Laval deemed it expe- dient in January 1662 to suspend his excommunication., 1 but on February 24 the Bishop renewed the excommuni- cation owing to alleged murders, and injuries to innocent persons, committed during the intervening weeks. This time he extended it to all those who were in any way the cause of drunkenness among the Indians 2 . But the situation had passed beyond his control, and realizing the futility of his efforts to prevent what he termed the "augmentation des desordres", he set sail for France on August 12, 1662, to obtain the removal of the Gover- nor General and to curtail the power of his office. He pressed upon the King's attention the abuses in admin- istering justice in Canada and the defects in the system, and the ultimate form of the Sovereign Council bore witness to the success of his mission. The new Council was to be chosen by Governor and Bishop jointly, and the Governor was to be stripped of his power to entertain appeals. Thus the struggle over the sale of liquor to the Indians may be classed as the second cause for the erection of the Sovereign Council. In the third place, the King was dissatisfied with the administration of the Company of One Hundred Asso- ciates, which had been formed in the time of Richelieu. Being financially unable to support the country with sup- plies, it had in 1644 returned the trade in peltries, which was the only advantage it drew from Canada, into the hands of the inhabitants, upon the sole condition of an 1 Journal des Jesuites, January, 1662. " Le jour de St. Matthias, on fut oblige de relever 1' excommunication a cause des troubles et desordres extraordinaires. ' ' * Man. des Ev, de Queb., vol. i, pp. 42-43. 2i ] THE CREATION AND EARLY HISTORY 2 I annual quit- rent of 1000 beaver skins. By 1662 the number of shares had dwindled from 100 to 45.* The holders of these shares were unable to stand the expense necessary to develop their colony from which they were drawing no profit. 2 Weakened by the resignation of many of its members, the Company had been unable to send soldiers and colonists to New France. According to one decree the colonists were so few in number that they were on the point of being expelled by the Iroquois. It was necessary therefore to think of maintaining and protecting them and adding to their number. On Feb- ruary 24, 1663, the officers and a dozen of the stockholders met in Paris. They had learned that His Majesty was desirous of obtaining possession of the country and seig- niory of New France and as a mark of their profound respect and entire deference to his wishes surrendered their rights. 3 The Company thus had the opportunity both to get rid of a white elephant and to oblige Louis XIV. In March the King accepted the cession of the Company's rights explaining his resolution to take the country into his own hands. 4 This resumption, consti- tuting New France a royal province, aimed at the resus- citation of the colony. The resumption of the colony was probably a good reason for the establishment of a provincial form of tri- bunal. There were at this time so-called " Sovereign Coun- cils " at Ensisheim, Perpignan, and Arras in France, but it must be pointed out that the Sovereign Council of New 1 Many influences were brought to bear upon the King to overthrow this tottering Company. Avaugour advised him to dissolve it. Gar- neau, Histoire du Canada, vol. i, p. 146. * This is the resume in the instructions to Talon. Coll. de Man. de Nouv. Fr., vol. i, p. 177. See also (Clement) Lettres, Instructions et Memoires de Colbert, vol. iii, pt. ii, p. 389. 3 Edits et Ord., vol. i, pp. 30, 31. "Ibid., p. 32. 22 THE SOVEREIGN COUNCIL OF NEW FRANCE [ 22 France was not modeled entirely upon them. For ex- ample, the edict establishing it made no provision for an intendant. On the contrary, it was like the " ancien con- seil " of 1648 in many ways, differing chiefly in the way Councillors were chosen and in having much greater ju- dicial power. Louis XIV and Colbert had had no experi- ence in forming courts and consequently they adapted the Council to Canadian needs. They were so pleased with this experiment that they established some nineteen months later similar Councils in Martinique and Guade- loupe. 1 The form of the Sovereign Council reflected the abso- lutist notions of the young King. The Council of 1648 was not in accordance with such theories. The Coun- cil of 1663 was to be constituted by the two highest officials in Canada. The syndics were no longer to help elect Councillors. Henceforth, these men looked to those above, rather than those below, them for appoint- ment and continuance in office. The King was drawing the reigns of government into his own hands. In addition to being a step towards absolutism, this appeared like a victory for the ecclesiastics. The Edict provided that the Bishop, or the first ecclesiastic in the country, should share with the Governor General the power of appointing the other members of the Council. These were five Councillors, an Attorney-General, and a clerk. What formerly constituted in great measure the functions of the Governor, was given to the Council, in which he had but one of the seven votes cast. In cer- tain actions final judgment had rested with the Gover- 1 Arras (1530-1641-1677), Perpignan (1660) and Ensisheim (1657). Desmaze, Le Parlement de Paris, p. 473. Letters patent creating sovereign Councils at Martinique and Guadeloupe, dated October n, 1664. 23] THE CREATION AND EARLY HISTORY 2 $ nor ; now, final appeal in all actions was had to the Sov- ereign Council. It also had wide powers of administration, of regulating the judicial system in the country and of appointing officers of justice. In fact, the creation of this Council, in conjunction with the dismissal of Avau- gour and the appointment of Augustin Saffrey de Mesy 1 was clearly an ecclesiastical triumph. On September 18, 1663, the new Council entered upon its century-long career. At the first session the Edict of Establishment was registered and in the afternoon session the commissions of Governor de Mesy and M. Gaudais- Dupont were likewise registered. 2 As Mesy was strange to the Canadians this first Council was made up wholly at the suggestion of the Bishop. He chose orthodox Catholics, prominent in the affairs of the colony. The names of the first Councillors are worth remembering as these men played leading roles in the province for many years. The Councillors were commonly known by the names of Villeray, La Ferte, Auteuil, Tilly, and Damours ; the Attorney-General was Jean Bourdon and the clerk Peuvret de Mesnu. 3 'The Jesuits, allowed to choose the successor of Avaugour, "jeterent done les yeux sur le diet S r de Mesy, Major de la ville de Caen, qui faisoit profession d'estre devost, et qu'ils croyoient sans doute qui se conduiroit par leurs sentimens." Instructions to Talon, Coll. de Man. de Nouv. Fr., vol. i, p. 178. 1 Jugements et Delib., vol. i, pp. 1-3. * As they assumed names from lands they possessed, they appear in their commissions as Louis Rouer, Sieur de Villeray; Jean Juchereau, Sieur de la Ferte; Denis-Joseph Ruette d' Auteuil, Sieur de Monceaux; Charles le Gardeur, Sieur de Tilly; Mathieu Damours, Escuyer, Sieur Descaufour; Jean Bourdon, Sieur de St. Jean and St. Francois; and Jean Baptiste Peuvret, Sieur de Mesnu. Even in the struggling colony, men prized titles. In 1667, Talon and Tracy asked that four of the above should be given letters of noblesse. Later others received such patents. See Munro, The Seigniorial System in Canada, chap. ix. 24 THE SOVEREIGN COUNCIL OF NEW FRANCE [24 The earliest events in the life of the Council indicate that a change in its constitution was not sufficient to assure "bonne et briefe justice". In the following case the Sovereign Council seems to have withheld jus- tice in order to protect some of its members. The Company of One Hundred Associates some years before had sent out Peronne Dumesnil to investigate the frauds which it believed were regularly practised upon it. The commissioner thought he had gathered evidence sufficient to convict some of the leading members of the colony, among them Villeray and Bourdon. The day after the arrival of Mesy, Dumesnil begged the Governor not to appoint these two men to the Council until they should make satisfactory statements of the Company's money that had passed through their hands, basing this request upon the decrees of March 27, 1647 an d May 13, 1659.* The suspected men were nevertheless appointed on the following day. At the second meeting of the Council the said Bourdon, now Attorney General, rep- resented that a certain Peronne Dumesnil had caused an agent to force the window of the study of Auteuil, former secretary of the Council, and to carry away several papers, including some from the Council's registers, which he had used for purposes of intimidation, forcing signatures from some persons and withholding concessions from others. The other suspected member, Villeray, now First Councillor, was commissioned to search the house of Dumesnil, seize the alleged stolen papers and enclose them in a strong box. 2 Villeray, if we may believe Dumesnil, executed his commission in an unnecessarily harsh manner. Breaking into Dumesnil's house in the 1 Kingsford, vol. i, p. 306, et seq. The author has had access to the Dumesnil account of the affair. 2 Jugements et Delib., vol. i, p. 4. 25] THE CREATION AND EARLY HISTORY 25 early evening with a file of ten soldiers, he forced the place of deposit and extracted the papers while Dumesnil was held to a chair. The outraged man appealed to Gaudais, who presented his complaint to the Council accusing four of its members, Villeray, La Ferte, Tilly, and Auteuil. The petition was referred to Gaudais x and was evidently suppressed as no report of the case was ever made. The Councillors had succeeded in burying the investigation of Peronne Dumesnil in oblivion. This one incident excepted, the new Council showed remarkable moderation in its first operations. Even while granting Bishop Laval the desired decree forbid- ding the sale of liquor to the Indians, it reduced the pen- alty of death to 300 livres for the first offence, and the whip and banishment for a repetition. 2 During the de- liberations all interested parties were consulted, among others the Jesuit fathers. The same moderation was shown in the attitude of the Council towards the political work of the former Gover- nor, Avaugour, the Bishop's old enemy. On October 2 a lease that he had made of the trade of Tadoussac to a number of Canadians was annulled upon the ground that the Governor had failed to get the consent of his Coun- cil. 3 There was no hint of personal spite in this action, and this was the only case in which Avaugour's good judgment was attacked. Four actions arose on October 13, November 24, and December I, 1663, and on Janu- ary 16, 1664, which involved the question of sustaining or reversing his judgments, and in no case did the Coun- cil do more than modify them. Not one was reversed, 4 although the words " sans avoir esgard au jugement de M. d' Avaugour" which appear several times in the 1 Jugements et Dtlib., vol. i, p. 6. *Ibid., p. 8. 9 f6id., pp. 9 12. *Ibid., pp. 25, 64, 75, 93. 2 6 THE SOVEREIGN COUNCIL OF NEW FRANCE [ 2 6 record might indicate the Council's desire to arrive at a judgment independently. The first few months were filled with the work of set- tling many disputes, for the most part of a petty nature ; and only occasionally did signs of friction become appar- ent. On November 28 Governor de Mesy confessed in Council meeting that there had been some difficulty be- tween M. the Bishop, M. the Intendant, z and himself concerning his salary and " appointments ". He pro- posed that the Sovereign Council should vote to him what any one of the last three Governors of New France had received. The Council did as requested, electing to give him the salary and "appointments that had been granted to Argenson." 2 Meanwhile the question of local government for Que- bec created some dissatisfaction. On October 7, 1663, a mayor and two aldermen had been elected by the citizens of Quebec and vicinity at the instance of the Council. 3 These officers had neglected their duties and the mayor had declared to Tilly that he intended to present his resignation to the Governor. He should have addressed the Governor directly. On November 14 the Council, in consideration of the failure of these local officers to do their duty and of the informal charac- ter of the resignation, 4 ordered that the former election of mayor and aldermen should be disregarded, that these 1 Jugements et Dtlib., vol. i, p. 67. Although Gaudais did not receive the title of Intendant in his commission and secret instructions and is not accounted the first Intendant of New France, he is here spoken of as " Monsieur 1'Intendant." 'Ibid., p. 78. *Ibid., p. 15. *" Etquemesme le pais n'estant encorqu'en tres petite consideration pour le petitesse de son estendue en deserts et nombre de peuples, II seroit plus a propos de se contanter d'un scyndicq Eu esgard au peu d'affaires qui concernent le devoir de ces charges." Ibid., p. 57. 2 7 ] THE CREATION AND EARLY HISTORY 27 offices should be abolished, and that the people should proceed to elect a syndic. There is no evidence that Mesy was present at this meeting. In any case the mayor should have been encouraged to obtain his release from the Governor before the Council took this step. In view of the trouble that ensued over the local govern- ment of Quebec, one must conclude that already eccle- siastical influence was at work to prevent any other government for Quebec than the sway of Bishop and Seminary. In December a difficulty arose between the Governor and Villeray. The latter had been ordered by the Coun- cil to investigate and report a number of causes and had already introduced several. Notwithstanding this order of the Council, on February 4, 1664, public notice was given by the Governor notifying parties who had peti- tions to present, to address themselves to him when the business concerned the interests of the King, and to the Council in open meeting when it concerned justice or police, alleging that the practice was an innovation in- troduced at the instigation of certain members of the Council. 1 Any member who should suppress a petition was to be liable to exclusion from the Council. This notice was posted up " to beat of drum " by Angouville, Major of Fort St. Louis. On the I3th, this same mili- tary officer was sent by Mesy to announce to the Bishop the Governor's intention to exclude from the Council Villeray and Auteuil, Councillors, and Bourdon, Attor- ney-General, and to have their successors elected in a " popular assembly." Laval was asked to acquiesce in this arrangement, but instead he protested against the regis- tration of such a document as a dangerous precedent. 1 Coll. Moreau St. M&ry, series F iii, vol. i, p. 292. 2 g THE SOVEREIGN COUNCIL OF NEW FRANCE [ 2 g Angouville answered that the Governor would have it published without registration. 1 The same day the Gov- ernor obtained an ordinance of Council 2 signed by him- self, Tilly, La Ferte, and Damours, suspending Villeray and Auteuil from their positions as Councillors. For a few weeks the Governor and these three members con- ducted the administration of justice, but as the need of an Attorney-General was felt, the Governor proposed the erection of the office of deputy Attorney-General. 3 The Bishop opposed this project. He could not acqui- esce in the removal of former Council members unless convinced of their crime, nor proceed to the choice of a deputy Attorney-General. Nevertheless on March 10 the Council permitted the registration of letters from Mesy granting the office of deputy Attorney-General to Louis-Theandre Chartier, Sieur de Lotbiniere. 4 The Bishop again protested against the creation of an office to the prejudice of the Attorney-General. The "rump" Council thus provided with a deputy Attorney-General heard many causes during the next month. After a time the old members were re-admitted, and a general reconciliation took place on April 16. The Governor erased certain phrases from the ordinance of February 13, declared that it should be considered null and void, and re-established all as before its pro- mulgation. 5 The deputy Attorney-General gracefully resigned and the reunited Council gave itself uninter- ruptedly to the business of administration. ^Jugements et Delib., vol. i, p. 121. 2 This document accuses two Councillors and the Bishop of usurping the authority of the Governor and of fomenting sedition. Supplement Canadian Archives Report, 1899, P- 53- 3 March 5, 1664. Jugements et Delib., vol. i, pp. 127-128. *Ibid., p. 129. ~*Ibid., p. 170. 29 ] THE CREATION AND EARLY HISTORY 29 In June the Council instituted an innovation, which, in view of the somewhat electric condition of the atmos- phere, was not well-considered. It sent letters dated the 1 3th and written by the hand of Villeray to the King and minister. These were signed by " le Conseil Souverain Etably a Quebecq 'V The topics treated were such as the Governor generally discussed in his letters to the home government. There is no evidence that Mesy showed resentment at this encroachment upon the time- honored duties of the Governor, but he must have seen in it a revival of the " Cabal " under the influence of Laval for the purpose of undermining his power. During the next three months events occurred in the Council meeting which shook the foundations of the gov- ernment. On July 28 the Attorney- General had asked the election of a syndic for Quebec, which, following the Council's ordinance, duly occurred, resulting in the elec- tion of one Charron by a majority vote. As there were but twenty-three electors present, and as Charron was a merchant and inclined to consider only the interests of his class, certain citizens were prompted to petition the Council for his removal. This was effected without in- jury to Charron's feelings and another election was ordered. The second meeting was more poorly attended than the first. In fact so few were present that no elec- tion was attempted. The Governor began to realize that "the Cabal of the Council," as he called it, was deter- mined not to allow the election of a syndic and to that effect had used every effort to keep people away from the elections. He determined to outwit his opponents. He issued writs to a numerous electorate without stating the purpose of the proposed meeting, and under- the 1 Jugements et Dtlib., vol. i, pp. 201-206. 30 THE SOVEREIGN COUNCIL OF NEW FRANCE [30 supervision of himself and Councillor Damours the meet- ing was held and a syndic was successfully elected. 1 But the "Cabal" was not to be outwitted. The Bishop was at this time masking behind the Sieur de Charny, who usually attended the Council in his stead to lead the opposition. No sooner then was the syndic- elect presented to the Council to be installed in his office than objection arose from various Councillors. Charny, La Ferte and Auteuil (Villeray being absent on a voyage to France) succeeded in excluding Tilly and Damours from the deliberations and were about to reject the can- didate when Mesy postponed the consideration of the subject until another day. A second time the Governor summoned the syndic-elect before the Council to take the oath, and again Charny interfered as spokesman of the " Cabal." La Ferte and Auteuil joined in the attack, when the Governor, mindful that their term of office was nearly expired, began negotiations with the Bishop for their removal. 2 On August 25 an exchange of notes took place. Mesy asked the Bishop to agree to the choice of new Councillors to replace Villeray, La Ferte and Auteuil, Bourdon, Attorney-General, and Peuvret de Mesnu, clerk. He offered to make nominations from any twelve persons whom the Bishop might propose; or himself to propose twelve persons from whom the Bishop might make the selections. The Bishop replied that he could not consent to the election of Councilors 1 See ibid., pp. 278-280, where the greater part of this account appears as a review of the case. This review is substantially in accordance with information gathered from other records in the same collection and from the Coll. Moreau St. Mhy. * The Edict of Establishment authorized the Governor and the Bishop conjointly to dismiss from, and refill offices of Councilors at the close of each fiscal year. 31] THE CREATION AND EARLY HISTORY ^ until the arrival of M. de Tracy, 1 who had been appointed viceroy of New France and the West Indies. Driven to the wall, the Governor on September 19, 1664, declared four seats vacant. All four men accepted their dis- missal in good part, except Bourdon, the Attorney- General, who shouted out in haughty and insolent dis- dain that he did not consider himself dispossessed of his office. A violent scene followed, during which Bourdon was maltreated and put out of the Council chamber, as a salutary warning against further insubordination. 2 Mesy had gained the day. He reappointed Damours and Tilly for a second year, and a week later filled the other vacancies in the Council. Mgr. Laval 3 had occupied a strong position. While 1 Had Mesy consented he would have had a hostile Council until the middle of the summer following. These letters are found in extenso in Coll. Moreau St. Mery, series F iii, vol. i, pp. 316, 317. 2 A copy of this record of September 19 is found in the above collection; also a factum by the Bishop, in Canadian Archives Report, 1905, p. 506, where Bourdon's chastisement is set forth as follows: " M. de Charny having asked M. de Mesy the reason of his refusal to enter on the registers the deliberations of the Council, he got into a frenzy and said to the whole Council: ' I dismiss you, go out; I do not suspend you only, I dismiss you, go away from here,' threatening them with insult- ing words, a stick in his hand and looking at the registrar and the Sr. Bourdon, Procureur General, he said, 'I dismiss you also.' M. Bour- don retorted: ' As to me, Sir, I must not consider myself as dismissed; the decree of the establishment of the Council does not enact that I may be removed; I ask you, if you please, that it should be read.' Hearing this, M. de Mesy rose up out of his chair, took M. Bourdon by the throat and pulled him out of his place by force, hit him on the head with his stick, drew out his sword and struck him many times, when the Sieurs D' Amours and D'Auteuil covered him, thus enabling the said Bour- don to retire. He went out. M. de Mesy followed him outside, hit him again repeatedly with his stick and with the flat side of his sword and wounded one of his hands, saying, ' I will kill you.' S r Bourdon retired without saying a word and called on a surgeon to get his wound dressed." 3 The Roman Catholic Church preserves the memory of ancient epis- 32 THE SOVEREIGN COUNCIL OF NEW FRANCE [32 his proxy and his partisans in the Council drove the Governor most ardently to desire their dismissal, the Bishop refused him the one legitimate way out : he de- clined to cooperate in changing the personnel of the Council, a personnel that the Governor could no longer tolerate. He forced Mesy into the adoption of violent measures that placed him in the wrong before the King ' and before posterity. The new Councillors appointed by Mesy served from September 24, 1664, to July 6, 1665. During that time there was energetic and concerted action. The struggle between Governor and Bishop was now waged outside the Council chamber walls, the opposition being offered both by the Bishop and by his adherents. It was the intention of the Governor to establish the authority and prestige of the new Council. Four days after its first meeting, proclamation of its establishment was published at the door of the church, without making mention of the opposition of the Bishop, but next day Laval from copal sees which have lapsed through the decline of population or through falling into the hands of infidel or heretic nations, by bestow- ing their bishoprics as honorary titles upon coadjutor and suffragan bishops, apostolic vicars and delegates, etc. Such bishoprics are called bishoprics in partibus infidelium. As Quebec was not erected into a see until 1674, its first vicar apostolic, Fran