THE INTENDANT AND THE SOVEREIGN COUNCIL
In the preceding chapter a sketch has been given of
Talon's endeavours to promote colonization, agriculture,
shipbuilding, and commerce, to increase the population,
and to foster generally the prosperity of New France.
Let us now see how he provided for the good administration
and internal order of the colony.
In 1666 he had prepared and submitted to Tracy and
Courcelle a series of rules and enactments relating to
various important matters, one of which was the
administration of justice. Talon wished to simplify the
procedure; to make justice speedy, accessible to all,
and inexpensive. In each parish he proposed to establish
judges having the power to hear and decide in the first
instance all civil cases involving not more than ten
livres. In addition, there would be four judges at Quebec,
and appeals might be taken before three of them from all
decisions given by the local judges--'unless,' Talon
added, 'it be thought more advisable to maintain the
Sieur Chartier in his charge of lieutenant-general, to
which he has been appointed by the West India Company.'
It was decided that M. Chartier (de Lotbiniere) should
be so maintained, and he was duly confirmed as lieutenant
civil et criminel on January 10, 1667. He had jurisdiction
in the first instance over all cases civil and criminal
in the Quebec district and in appeal from the judgments
of the local or seigneurial judges. The Sovereign Council
acted as a court of appeal in the last resort, except in
cases where the parties made a supreme appeal to the
King's Council of State in France. In 1669 Talon wrote
a memorandum in which we find these words: 'Justice is
administered in the first instance by judges in the
seigneuries; then by a lieutenant civil and criminal
appointed by the company in each of the jurisdictions of
Quebec and Three Rivers; and above all by the Sovereign
Council, which in the last instance decides all cases
where an appeal lies.' At Montreal there was a lieutenant
civil and criminal appointed by the Sulpicians, seigneurs
of the island. In 1667 there were seigneurial judges in
the seigneuries of Beaupre, Beauport, Notre-Dame-des-Anges,
Cap-de-la-Magdeleine.
It is interesting to find that Talon attempted to establish
a method of settlement out of court, the principle of
which was accepted by the legislature of the province of
Quebec more than two centuries later. What was called
the amiable composition of the French intendant may be
regarded as a first edition of the law passed at Quebec
in 1899, which provides for conciliation or arbitration
proceedings before a lawsuit is begun. [Footnote: 62
Vict. cap. 54, p. 271.] Talon also introduced an equitable
system of land registration.
In the proceedings of the Sovereign Council, of which
Talon at this time was the inspiring mind, we may see
reflected the condition and internal life of the colony.
Decrees for the regulation of trade were frequent.
Commercial freedom was unknown. Under the administration
of the governor Avaugour (1661-63) a tariff of prices
had been published, which the merchants were compelled
to observe. Again, in 1664 the council had decided that
the merchants might charge fifty-five per cent above cost
price on dry goods, one hundred per cent on the more
expensive wines and spirits, and one hundred and twenty
per cent on the cheaper, the cost price in France being
determined by the invoice-bills. In 1666 a new tariff
was enacted by the council, in which the price of one
hogshead of Bordeaux wine was fixed at eighty livres,
and that of Brazil tobacco at forty sous a pound. In 1667
again changes took place: on dry goods the merchants were
allowed seventy per cent above cost; on spirits and wines,
one hundred or one hundred and twenty per cent as in
1664. The merchants did not accept these rulings without
protest. In 1664 the most important Quebec trader, Charles
Aubert de la Chesnaye, was prosecuted for contravention,
and made this bold declaration in favour of commercial
freedom: 'I have always deemed that I had a right to the
free disposal of my own, especially when I consider that
I spend in the colony what I earn therein.' Prosecutions
for violating the law were frequent. During the month of
June 1667, at a sitting of the Sovereign Council, Tracy,
Courcelle, Talon, and Laval being present, the attorney-
general Bourdon made out a case against Jacques de la
Mothe, a merchant, for having sold wines and tobacco at
higher prices than those of the tariff. The defendant
acknowledged that he had sold his wine at one hundred
livres and his tobacco at sixty sous, but alleged that
his wine was the best Bordeaux, that his hogsheads had
a capacity of fully one hundred and twenty pots, that
care, risk, and leakage should be taken into consideration,
that two hogsheads had been spoiled, and that the price
of those remaining should be higher to compensate him
for their loss. As to the tobacco, it was of the Maragnan
quality, and he had always deemed it impossible to sell
it for less than sixty sous. After hearing the case, the
council decided that two of its members, Messieurs Damours
and de la Tesserie, should make an inspection at La
Mothe's store, in order to taste his wine and tobacco
and gauge his hogsheads. Away they went; and afterwards
they made their report. Finally La Mothe was condemned
to a fine of twenty-two livres, payable to the Hotel-Dieu.
It may be remarked here that very often the fines had a
similar destination; in that way justice helped charity.
The magistrates were vigilant, but the merchants were
cunning and often succeeded in evading the tariff. In
July 1667, the habitants' syndic appeared before the
council to complain of the various devices resorted to
by merchants to extort higher prices from the settlers
than were allowed by law. So the council made a ruling
that all merchandise should be stamped, in the presence
of the syndic, according to the prices of each kind and
quality, and ordered samples duly stamped in this way to
be delivered to commissioners specially appointed for
the purpose. It will be seen that these regulations were
minute and severe. Trade was thus submitted to stern
restrictions which would seem strange and unbearable in
these days of freedom. What an outcry there would be if
parliament should attempt now to dictate to our merchants
the selling price of their merchandise! But in the
seventeenth century such a thing was common enough. It
was a time of extreme official interference in private
affairs and transactions.
We have mentioned the syndic of the inhabitants--syndic
des habitants. A word about this officer will be in place
here. He was the spokesman of the community when complaints
had to be made or petitions presented to the governor or
the Sovereign Council. At that time in Canada there was
no municipal government. True, an unlucky experiment had
been made in 1663, under the governor Mezy, when a mayor
and two aldermen were elected at Quebec. But their
enjoyment of office was of brief duration; in a few weeks
the election was declared void, It was then determined
to nominate a syndic to represent the inhabitants, and
on August 3 Claude Charron, a merchant, was elected to
the office; but, as the habitants often had difficulties
to settle with members of the commercial class, objection
was taken to him on the ground that he was a tradesman,
and he retired. On September 17 a new election took place,
and Jean Le Mire, a carpenter, was elected. Later on,
during the troubles of the Mezy regime, the office seems
to have been practically abolished; but when the government
was reorganized, it was thought advisable to revive it.
The council decreed another election, and on March 20,
1667, Jean Le Mire was again chosen as syndic. Le Mire
continued to hold the office for many years.
To the colony of that day the Sovereign Council was,
broadly speaking, what the legislatures, the executives,
the courts of justice, and the various commissions--all
combined--are to modern Canada. But, as we have seen, it
had arbitrary powers that these modern bodies are not
permitted to exercise. Its long arm reached into every
concern of the inhabitants. In 1667, for example, the
habitants asked for a regulation to fix the millers'
fee--the amount of the toll to which they would be entitled
for grinding the grain. The owners of the flour-mills
represented that the construction, repair, and maintenance
of their mills were two or three times more costly in
Canada than in France, and that they should have a
proportionate fee; still, they would be willing to accept
the bare remuneration usually allowed in the kingdom.
The toll was fixed at one-fourteenth of the grain. Highways
were also under the care of the council. When the residents
of a locality presented a petition for opening a road,
the council named two of its members to make an inspection
and report. On receipt of the report, an order would be
issued for opening a road along certain lines and of a
specified width (it was often eighteen feet), and for
pulling stumps and filling up hollows. There was an
official called the grand-voyer, or general overseer of
roads. The office had been established in 1657, when Rene
Robineau de Becancourt was appointed grand-voyer by the
Company of One Hundred Associates. But in the wretched
state of the colony at that time M. de Becancourt had
not much work to do. In later years, however, the usefulness
of a grand-voyer had become more apparent, and Becancourt
asked for a confirmation of his appointment. On the
suggestion of Talon, the council reinstated him and
ordered that his commission be registered. During the
whole French regime there were but five general overseers
of roads or grands-voyers: Rene Robineau de Becancourt
(1657-99); Pierre Robineau de Becancourt (1699-1729); E.
Lanoullier de Boisclerc (1731-51); M. de la Gorgendiere
(1751-59); M. de Lino (1759-60).
Guardianship of public morality and the maintenance of
public order were the chief cares of the council. It was
ever intent on the suppression of vice. On August 20,
1667, in the presence of Tracy, Courcelle, Talon, and
Laval, the attorney-general submitted information of
scandalous conduct on the part of some women and girls,
and represented that a severe punishment would be a
wholesome warning to all evil-doers; he also suggested
that the wife of Sebastien Langelier, being one of the
most disorderly, should be singled out for an exemplary
penalty. A councillor was immediately appointed to
investigate the case. What was done in this particular
instance is not recorded, but there is evidence to show
that licentious conduct was often severely dealt with.
Crimes and misdemeanours were ruthlessly pursued. For a
theft committed at night in the Hotel-Dieu garden, the
intendant condemned a man to be marked with the
fleur-de-lis, to be exposed for four hours in the pillory,
and to serve three years in the galleys. Another culprit
convicted of larceny was sentenced to be publicly whipped
and to serve three years in the galleys. Both these
prisoners escaped and returned to their former practices.
They were recaptured and sentenced, the first to be
hanged, the second to be whipped, marked with the
fleur-de-lis, and kept in irons until further order. Rape
in the colony was unhappily frequent. A man convicted of
this crime was condemned to death and executed two days
later. Another was whipped till the blood flowed and
condemned to serve nine years in the galleys.
Let us now turn to activities of another order. One of
the most important ordinances enacted by the Sovereign
Council under Talon's direction was that which concerned
the importation of spirits and the establishment in the
colony of the brewing industry. It was stated in this
decree that the great quantity of brandies and wines
imported from France was a cause of debauchery. Many were
diverted from productive work, their health was ruined,
they were induced to squander their money, and prevented
from buying necessaries and supplies useful for the
development of the colony. Talon, as we have read in
another chapter, thought that one of the best means of
combating the immoderate use of spirits was the setting
up of breweries; at the same time he intended that this
industry should help agriculture. The Sovereign Council
entered into these views and enacted that as soon as
breweries should be in operation in Canada all importation
of wines and spirits should be prohibited, except by
special permission and subject to a tax of five hundred
livres, payable one-third to the seigneurs of the country,
one-third to the Hotel-Dieu, and one-third to the person
who had set up the first brewery after the date of the
enactment. Under no circumstances should the yearly
importation exceed eight hundred hogsheads of wine and
four hundred of brandy. When this amount had been reached,
no further licences to import would be issued. The council
begged Talon to take the necessary steps for the
construction and equipment of one or more breweries. The
owners of these were to have, during ten years, the
exclusive privilege of brewing for trading purposes. The
price of beer was fixed beforehand at twenty livres per
hogshead and six sous per pot so long as barley was priced
at three livres per bushel or less; if the price of barley
went higher, the price of beer should be raised
proportionately.
In 1667 the Sovereign Council--inspired by Talon--had to
discuss a very important question. This was the formation
of a company of Canadians to secure the exclusive privilege
of trading. By its charter, the West India Company had
been granted the commercial monopoly. Under pressure from
Talon it had somewhat abated its pretensions and had
allowed freedom of trade for a time. But again it was
urging its rights. The council asked the intendant to
support with his influence at court the plan for a Canadian
company, which he did. Colbert did not say no; neither
did he seem in a hurry to grant the request. In 1668 the
council sent the minister a letter praying for freedom
of trade. This year the company had enforced its monopoly
and the people had suffered from the lack of necessaries,
which could not be found in the company's stores; moreover,
prices were exceedingly high. Such a state of things was
detrimental to the colony. The council begged that, if
Colbert were not disposed to grant freedom of trade, he
would favourably consider the scheme for a trading company
composed of Canadians, which had been submitted to him
the year before. We shall see, later on, what came of
this agitation against the West India Company.
The good understanding between the intendant and the
Sovereign Council was absolute. The council had shown
unequivocal confidence in Talon's ability and respect
for his person and authority. A few days before the
Marquis de Tracy had left the colony the council had
ordered that all petitions to enter lawsuits should be
presented to the intendant, who should assign them to
the council or to the lieutenant civil and criminal, or
try them himself, at his discretion. This was treating
Talon as the supreme magistrate and acknowledging him as
the dispenser of justice. M. de Courcelle, who was
beginning to feel some uneasiness at Talon's great
authority and prestige, refused to sign the proceedings
of that day, inscribing these lines in the council's
register: 'This decree being against the governor's
authority and the public good, I did not wish to sign
it.' At the beginning of the following year Talon, whose
attention perhaps had not been called to Courcelle's
written protest, requested the adoption of a similar
decree; and the council did not hesitate to confirm its
previous decision, notwithstanding the governor's former
opposition, which he reiterated in the same terms.
Courcelle was certainly mistaken in supposing that the
council's decision was an encroachment on his authority.
The superior jurisdiction in judicial matters belonged
to the intendant. Under his commission he had the right
to 'judge alone and with full jurisdiction in civil
matters,' to 'hear all cases of crimes and misdemeanours,
abuse and malversation, by whomsoever committed,' to
'proceed against all persons guilty of any crime, whatever
might be their quality or condition, to pursue the
proceedings until final completion, judgment and execution
thereof.' Nevertheless, in practice and with due regard
to the good administration of justice, the council's
decree went perhaps too far. The question remained in
abeyance and was not settled until four years afterwards,
at the end of Talon's second term in Canada. He had
written to Colbert on the subject stating that he would
be glad to be discharged of the judicial responsibility,
and to see the question of initiating lawsuits referred
to the Sovereign Council.
As a matter of fact [he said], receiving the petitions
for entering lawsuits does not mean retaining them
before myself. I have not judged twenty cases, civil
or criminal, since I came here, having always tried
as much as I could to conciliate the opposing parties.
The reason why I speak now of this matter is that very
often, for twenty or thirty livres of principal, a
plaintiff goes before the judge of first instance--which
diverts the parties from the proper cultivation of
their farms--and later on, by way of an appeal, before
the Sovereign Council which likes to hear and judge
cases.
Colbert did not deem the decision of the council advisable.
It is contrary [he wrote] to the order of justice, in
virtue of which, leaving in their own sphere the
superior judges, the judges of first instance are
empowered to hear all cases within their jurisdiction,
and their judgments can be appealed from to the
Sovereign Council. Moreover it would be a burden for
the king's subjects living far from Quebec to go there
unnecessarily in order to ascertain before what tribunal
they should be heard.
We must now speak of a most important matter--the brandy
traffic. The sale of intoxicating liquor to the Indians
had always been prohibited in the colony. In 1657 a decree
of the King's State Council had ratified and renewed this
prohibition under pain of corporal punishment. Yet,
notwithstanding the decree, greedy traders broke the law
and, for the purpose of getting furs at a low price,
supplied the Indians with eau-de-feu, or firewater, which
made them like wild beasts. The most frightful disorders
were prevalent, the most heinous crimes committed, and
scandalous demoralization followed. In 1660 the evil was
so great that Mgr de Laval, exercising his pastoral
functions, decreed excommunication against all those
pursuing the brandy traffic in defiance of ordinances.
This might have stopped the progress of the evil had not
the governor Avaugour opened the door to renewed disorder
two years later by a most unfortunate policy. Thereupon
Laval crossed the ocean to France, obtained the governor's
recall, and succeeded, though with some difficulty, in
maintaining the former prohibition. In 1663 the Sovereign
Council enacted an ordinance strictly forbidding the
selling or giving of brandy to Indians directly or
indirectly, for any reason or pretence whatsoever. The
penalty for the offence was a fine of three hundred
livres, payable one-third to the informers, one-third to
the Hotel-Dieu, and one-third to the public treasury.
And for a second offence the punishment was whipping or
banishment. In 1667, after the Sovereign Council had been
finally reorganized, the prohibition was renewed, on a
motion of attorney-general Bourdon, under the same
penalties as before, and it devolved many times upon the
council to condemn transgressors of this ordinance to
fines, imprisonment, or corporal punishment. Talon was
present and concurred in these condemnations. But gradually
his mind changed. He was becoming daily more impressed
with the material benefits of the brandy traffic and less
convinced of its moral danger. He was besides displeased
with the bishop's excommunication. In his view it was an
encroachment of the spiritual upon the civil power. Under
the influence of these feelings he came to consider
prohibition of the liquor traffic as a mistake, damaging
to the trade and progress of the colony and to French
influence over the Indian tribes. These were the arguments
put forward by the supporters of the traffic. According
to them, to refuse brandy to the Indians was to let the
English monopolize the profitable fur trade, and therefore
to check the development of New France. The fur trade
provided an abundance of beaver skins, which formed a
most convenient medium of exchange. The possession of
these gave an impetus to trade, and brought to Canada a
number of merchants and others who were consumers of
natural products and money spenders. Moreover, in Canada
furs were the main article of exportation. Their abundance
swelled the public revenue and increased the number of
ships employed in the Canadian trade. And last, to use
an argument of a higher order, the brandy traffic, in
fostering trade with the Indian tribes, kept them in the
bonds of an alliance and strengthened the political
situation of France in North America.
The above fairly, we think, represents the substance of
the plea made by the supporters of the liquor traffic.
Such indeed were the arguments used by the traders,
finally accepted by Talon, developed in after years by
Frontenac, approved by Colbert on many occasions; such
was the political and commercial wisdom of those who
thought mainly of the material progress of New France.
To those arguments Laval, the clergy, and many enlightened
persons interested in the public welfare had a double
answer. First, there was at stake a question of principle
important enough to be the sole ground of a decision.
Was it right, for the sake of a material benefit, to
outrage natural and Christian morality? Was it morally
lawful, for the purpose of loading with furs the Quebec
stores and the Rochelle ships, to instil into the Indian
veins the accursed poison which inflamed them to theft,
rape, incest, murder, suicide--all the frightful frenzy
of bestial passion. As it was practised, the liquor
traffic could have no other result. A powerful consensus
of evidence established this truth above all discussion.
For the Indians brandy was then, as it is now, a murderous
poison. It is for this reason that at the present day
the government of Canada prohibits absolutely the sale
of intoxicating liquor in the territories where the
wretched remnants of the aborigines are gathered. The
strictness of the modern laws is a striking vindication
of Laval and those who stood by him.
Moreover the prohibition of the brandy traffic was not
as detrimental to the material development of the colony
as was contended. It was possible to trade with the
Outaouais, the Algonquins, the Iroquois, without the
allurement of brandy. The Indians themselves acknowledged
that strong liquor ruined them. The Abbe Dollier de
Casson, superior of the Montreal Sulpicians, was perfectly
right when he made the following statement:
We should have had all the Iroquois, if they had not
seen that there is as much disorder here as in their
country, and that we are even worse than the heretics.
The Indian drunkard does not resist the drinking craze
when brandy is at hand. But afterwards, when he sees
himself naked and disarmed, his nose gnawed, his body
maimed and bruised, he becomes mad with rage against
those who caused him to fall into such a state.
Some years later the governor Denonville answered those
who enlarged on the danger of throwing the Indians on
the friendship of the Dutch and English if they were
refused brandy. 'Those who maintain,' he said, 'that if
we refuse liquor to the Indians they will go to the
English, are not trustworthy, for the Indians are not
anxious to drink when they do not see the liquor; and
the most sensible of them wish that brandy had never
existed, because they ruin themselves in giving away
their furs and even their clothes for drink: Denonville's
opinion was the more justified in that at one time the
New England authorities proposed to the French a joint
prohibition of the sale of brandy to Indians, and actually
passed an ordinance to that effect.
There were many other articles besides brandy that were
needed by the Indians, and for which they were obliged
to exchange their furs. But even had the prohibition
caused a decrease in the fur trade, would the evil have
been so great? Fewer colonists would have been diverted
from agriculture. As it was, the exodus from the settlements
of bushrangers in search of furs was a source of weakness,
and the flower of Canadian youth disappeared every year
in the wilderness. Had this drain of national vitality
been avoided, the settlement of Canada would have been
more rapid. Even from the material point of view it can
be maintained that the opponents of the brandy traffic
understood better than its supporters the true interests
of New France.
For a long while this important question divided and
agitated the Canadian people. The religious authorities,
knowing the evil and crimes that resulted from the sale
of intoxicating liquor to the Indians, made strenuous
efforts to secure the most severe restriction if not the
prohibition of the deadly traffic. They spoke in the name
of public morality and national honour, of humanity and
divine love. The civil authorities, more interested in
the financial and political advantages than in the question
of principle, favoured toleration and even authorization
of the trade. Hence the conflicts and misunderstandings
which have enlivened, or rather saddened, the pages of
Canadian history.
It is to be regretted that the intendant Talon sided with
the supporters of free traffic in brandy. We have said
that at first he wavered. The rulings of the Sovereign
Council in 1667 seem to show it. But his earnest desire
for the prosperity of the colony--the development of her
trade, the increase of her population, the improvement
of her finances--his ambition for the economic progress
of New France, misled him and perverted his judgment.
This is the only excuse that can be offered for the
greatest error of his life. For he must be held responsible
for the ordinance passed by the Sovereign Council on
November 10, 1668. This ordinance, after setting forth
that in order to protect the Indians against the curse
of drunkenness it was better to have recourse to freedom
than to leave them a prey to the wily devices of
unscrupulous men, enacted that thereafter, with the king's
permission, all the residents of New France might sell
and deliver intoxicating liquor to the Indians willing
to trade with them. The gate was opened. It was in vain
that the ordinance went on to forbid the Indians to get
drunk under a penalty of two beavers and exposure in the
pillory. A fearful punishment indeed!
Talon's good faith was undeniable. On this occasion he
doubtless thought that he was still serving the cause of
public welfare. But, without questioning his intentions,
we cannot but admit that his life's record contains pages
more admirable than this one.