Regime Change, Law, and Borders in the Heart of French North America during the Eighteenth Century

Robert Englebert

Note: The following is partial reprint (abridged and edited) of the article “The Legacy of New France: Law and Social Cohesion between Quebec and the Illinois Country, 1763-1790,” French Colonial History 17 (2017): 35-65.

 

How do we think about borders and regime change in French North America during the eighteenth century? For some this might elicit reference to recent scholarship regarding the region that the French called Acadia. Indeed, detailed examinations of imperialism, Indigenous spaces, peoplehood, and dispersal help to reorient our understanding of borders and regime change in an Atlantic context.[1] Notwithstanding these stellar recent contributions, however, I suspect that many scholars of Canadian history would still look to the British Conquest of Quebec.

Old debates over the British Conquest, the departure of French elites – the supposed decapitation of New France society – and the fate of the canadiens initially focused overwhelmingly on Quebec.[2] Hilda Neatby went so far as to argue that “the French Empire was dissolved [in 1763]; the fragile lines which had united Quebec and New Orleans were severed, and forever.”[3] In other words, larger French North America – from Acadia to Louisiana – was part of the historical legacy of New France, but had no place in Quebec’s history after 1763.[4] Select scholars naturally questioned such narrow

geographical and temporal parameters, while following an eerily familiar pattern of inevitable and tragic dénouement for French North America after 1763, especially outside of Quebec.[5]  More recently, however, scholarship has challenged this declenionist model by focusing on French colonial continuities and adaptations, and questioning how much imperial change was immediately felt on the ground.[6] Shifting our historical gaze south and westward to Illinois Country offers an opportunity to begin to reevaluate and rethink the history of French North America after end of the Seven Years’ War.

In 1786, Montreal lawyer Valentin Jautard endeavored to sell a couple of parcels of land and a stone house that he had purchased in Illinois Country twenty years prior. He hired fur trade merchant Augustin Dubuc to travel to the village of Cahokia on the Mississippi River, to represent him, act in his name, and negotiate the sale. What appeared at first glance to be a routine transaction, however, quickly became a political and legal quagmire.

Shortly after the Seven Years’ War had come to an end in 1763, amid the air of political, legal, and ecclesiastical uncertainty, Father François Forget Duverger, a missionary priest of the Seminary of Foreign Missions and last vicar general of French Illinois, sold the properties of the parish of Sainte-Famille at Cahokia and departed for France. Two years later the properties were sold again, this time to Jautard. While there were some protests over the initial sale of parish property in 1763, it was not until 1785 that the issue of legal title came under renewed scrutiny. Newly arrived resident priest Paul St-Pierre re-established ecclesiastical authority at Cahokia and began digging into the original sale of parish property. At issue was whether Father Forget had acted lawfully and conducted the sale on directives from either his ecclesiastical order in France or the bishop at Quebec. The case came before the court and after due deliberation the magistrates determined that Forget had sold off the parish property without the consent of his superiors.  The court declared all former sales null and void, and rescinded Jautard’s titles. One can only imagine Jautard’s sense of bewilderment and disbelief upon hearing the verdict, evidenced by the incredulous tone of his final appeal to the court in 1787, where he noted,

When the country was surrendered to the English by the treaty of peace, that nation was seen to respect and put in force all acts of justice passed under the French government.  Since now we are in the power of the United States, it will be seen that this power maintains in all their force the laws and usages which have existed under the two preceding governments.  The conquering powers have the right to add to the country, which they have conquered, the laws which are their own; but not to annul those which were in force before.[7]

Rather than arguing for a statute of limitations based on the twenty years that had passed since purchasing the properties, Jautard’s rejoinder asserted that new rulers were required to uphold the laws and property rights of previous regimes.  To fail to do so, he posited, was to threaten public security and, consequently, risk undermining the foundation of civilized society.

In an ironic twist the court at Cahokia used Jaurtard’s own rationale to deny his appeal. Most of the magistrates at Cahokia had signed a petition to the United States Congress in 1784, which acknowledged American sovereignty while lobbying for French legal continuity. Front and center in the first paragraph the inhabitants of Cahokia stated that, “we hope that you will give us the assistance which we need, and grant us the enjoyment of our former laws, privileges and customs, and that as American subjects we shall enjoy the same advantages as the other inhabitants enjoy.”[8] The decision regarding Jautard’s land titles was, therefore, consistent with the principles espoused in the petition to Congress; the court contended that Father Forget’s sales had, in fact, never been valid, and that the magistrates were upholding laws and titles conferred under the former French regime in Illinois Country.

The Cahokian petition to Congress was not the first such document that French-speaking residents of the Illinois Country had drafted. Regular petitioning outlined expectations for British subjecthood, and later, American citizenship, in an effort to influence evolving governance and legal structures, and to safeguard French property and wealth. For example, petitions from Illinois Country residents to American officials were issued

in 1778, 1779, 1780, 1781, 1782, 1783, 1784, and 1786 respectively. The Illinois Country was also not the only place where this type of petitioning occurred. As Bethel Saler has shown for Green Bay, Catherine Cagany for Detroit, and Hannah Weiss Muller has demonstrated for Grenada and Quebec, France’s former subjects frequently employed petitions as they adjusted to imperial change.[9] Petitions were also used in St. Louis and New Orleans.

As for Valentin Jautard’s legal assessment of the case, it was rooted in lived experience as much as political philosophy; he had seen firsthand the legal accommodations that characterized the early years of British rule in the colony of Quebec. As historian Donald Fyson reminds us, “In other colonies with established legal systems, British conquerors initially adopted a more flexible approach, based on legal pluralism.”[10] Whether it was the short-term retention of Dutch law in New York and Islamic law in India, or maintaining legal systems in newly acquired Minorca and Gibraltar, British governance of conquered territories had certainly established a powerful precedent. Moreover, the British were not alone in these accommodations. Just across the Mississippi River in Upper Louisiana, Spanish law had been introduced, but French civil law continued largely unabated.[11]

As British rule gave way to an American regime in the Illinois Country, French law continued to dominate, though there were repeated attempts to implement American legal reforms. This was certainly true in essence, if not in form, as French civil law operated from within the bosom of Anglo-American courts structures. In the Illinois Country, notaries became clerks, but continued the crucial role of drafting contracts and documents in accordance with French civil law. Similarly, newly elected magistrates ran the court at Cahokia and juries decided the outcomes of certain cases, all while making reference the old French laws and precedence. Comparable adjustments took place in towns like Vincennes, Green Bay, and Prairie du Chien, where French-speaking residents served as justices of the peace and jurors during the early years of American rule.

Despite the fact that regime change and legal pluralism played out unevenly from colony to colony, and even from village to village, on balance, the plethora of French notarial documents for the late eighteenth and early nineteenth centuries found in archives from Quebec City, Montreal, and Detroit down to New Orleans show that colonial legal conventions were remarkably persistent. Personal experience and legal precedence created an expectation that ancient laws and customs would be respected, and yet the case of Valentin Jautard reveals that these expectations coexisted alongside the general sense of apprehension brought on by geopolitical change.  Merchants and habitants were genuinely concerned that incoming governors and administrators would treat newly acquired colonies as a tabula rasa onto which foreign legal frameworks might be erected. Concern over law and property was not just local in nature but cut across colonial boundaries. After all, Jautard was trying to assert his property rights in American Illinois Country from the British colony of Quebec. As Bethel Saler has noted, the incoming American regime did not immediately comprehend “the alternative working principles guiding these socially networked towns.”[12]

The entire Jautard affair underscores the tension that existed between the longing for continuity and the fear of change. Moreover, it highlights how much was at stake for those on the ground as they grappled with how imperial change would affect property rights, commercial enterprise, family estates and wealth. There was genuine concern over how French civil law would operate, if at all, under these new regimes and across recently constituted colonial borders. Yet despite regular geopolitical change, French colonial legal traditions persisted into early nineteenth century, buttressed by the legal conventions of la Coutume de Paris like la procuration (power of attorney), marriage contracts, and laws of succession. Together, these facilitated settlement of family estates over long distances and across colonial borders and bound individuals and communities together from Canada to Illinois Country. Ultimately, by focusing on overlapping social, legal, and commercial networks, we can see the persistence of a French legal culture in North American history, as people adjusted to new imperial realities, and where old ties developed new meanings in an emerging trans-colonial, national, and early transnational context.

 

Robert Englebert is an associate professor of history at the University of Saskatchewan, Canada, where he teaches colonial North American, French colonial, and Fur Trade history. Dr. Englebert obtained his PhD in history at the University of Ottawa, Canada, in 2010. He has a particular interest in the history of French-Indigenous relations and is co-editor of French and Indians in the Heart of North America, 1630-1815 (Michigan State University Press, 2013). Current projects include a co-edited anthology on French cultural mobility in North America and the Atlantic world, and a monograph examining the transcolonial networks of merchant Gabriel Cerré through the latter half of the eighteenth century.

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NOTES:

[1] Christopher Hodson, The Acadian Diaspora: An Eighteenth-Century History (Oxford: Oxford University Press, 2012); Gregory M.W. Kennedy, Something of a Peasant Paradise? Comparing Rural Societies in Acadie and the Loudunais, 1604-1755 (Montreal & Kingston: McGill-Queen’s University Press, 2014); Jeffers Lennox, Homelands and Empires: Indigenous Spaces, Imperial Fictions, and Competition for Territory in Northeastern North America, 1690-1763 (Toronto: University of Toronto Press, 2017).

[2] These early debates over conquest are often organized into two schools characterized by historians out of Université de Montréal who adhered to the general precepts of the decapitation thesis and their counterparts at Université Laval, who, in general, refuted said thesis. See: Guy Frégault, La guerre de la conquête, 1754-1760 (Fides, 1955); Marcel Trudel, Histoire de la Nouvelle-France (Montréal: Fides, 1955); Michel Brunet, “The British Conquest: Canadian Social Scientists and the Fate of the ‘Canadiens,’” Canadian Historical Review 40, no. 2 (1959): 93–107; Jean Hamelin, Économie et Société en Nouvelle-France (Québec: Presses universitaires Laval, 1960); Michel Brunet, Les Canadiens après la Conquête, 1759-1775 (Montréal: Fides, 1969); Maurice Séguin, La nation canadienne et l’agriculture, 1760-1850: Essai d’histoire économique (Trois-Rivières: Boréal Express, 1970); Fernand Ouellet, Histoire économique et sociale du Québec, 1760-1850: Structures et conjonctures (Montréal: Fides, 1971).

[3] Hilda Neatby, Quebec: The Revolutionary Age, 1760-1791, The Canadian Centenary Series (Toronto: McClelland-Stewart, 1966), 2.

[4] A number of scholars have commented on the limited geographical, chronological, and historiographical approach to New France and French North American history. See: Thomas Wien, “Introduction: Nouvelle-France – Amérique Française,” in De Québec à l’Amérique Française, Histoire et Mémoire: Textes Choisis du Deuxième Colloque de la Commission Franco-Québécoise sur les Lieux de Mémoire Communs, ed. Thomas Wien, Cécile Vidal, and Yves Frenette (Quebec City: Les Presses de l’Université Laval, 2006), 4,15; Jocelyn Létourneau, A History for the Future: Rewriting Memory and Identity in Quebec (Montreal and Kingston: McGill-Queen’s University Press, 2004), 9; Fecteau, Jean-Marie, “Deux ou trois choses que je sais d’elle… Une «autre» histoire du Québec?,” Canadian Issues / Thèmes Canadiens, no. Quelle histoire pour quel avenir? Whose History for Whose Future? (Fall 2008): 15; Jay Gitlin, The Bourgeois Frontier: French Towns, French Traders & American Expansion (New Haven: Yale University Press, 2010), 19; Catherine Desbarats and Allan Greer, “Où est La Nouvelle-France?,” Revue d’histoire de l’amérique française 64, no. 3–4 (2011): 31–62; Yves Frenette, Étienne Rivard, and Marc St-Hilaire, eds., La Francophonie Nord-Américaine (Québec: Les Presses de l’Université Laval, 2012).

[5] Joseph Zitomersky, “Ville, état, implantation et société en Louisiane française: la variante «Mississippienne» du modèle colonial français en Amérique du Nord,” in Colonies, Territoires, Sociétés: l’enjeu Français, ed. Alain Saussol and Joseph Zitomersky (Paris: l’Harmattan, 1996), 23; W. J. Eccles, The French in North America, revised (Markham, ON: Fitzhenry & Whiteside, 1998); Cécile Vidal, “Le Pays des Illinois, six villages français au coeur de l’Amérique du Nord, 1699-1765,” in De Québec à l’Amérique Française, Histoire et Mémoire: Textes Choisis du Deuxième Colloque de la Commission Franco-Québécoise sur les Lieux de Mémoire Communs, ed. Thomas Wien, Cécile Vidal, and Yves Frenette (Quebec City: Les Presses de l’Université Laval, 2006), 127; Charles J. Balesi, The Time of the French in the Heart of North America, 1673-1818, 3rd ed. (Chicago: Alliance Française, 2000); Gilles et Cécile Vidal Havard, Histoire de l’Amérique Française, revised (Paris: Flammarion, 2006).

[6] Calloway, The Scratch of a Pen: 1763 and the Transformation of North America; Robert Englebert, “Merchant Representatives and the French River World, 1763-1803,” Michigan Historical Review 34, no. 1 (2008): 63–82; Gitlin, The Bourgeois Frontier: French Towns, French Traders & American Expansion; Carl J. Ekberg, François Vallé and His World: Upper Louisiana before Lewis and Clark, Missouri Biography Series (Columbia, MO, and London: University of Missouri Press, 2002); Carl J. Ekberg, A French Aristocrat in the American West: The Shattered Dreams of De Lassus de Luzières (Columbia, M.O.: University of Missouri Press, 2010); Morrissey, Robert Michael, Empire by Collaboration: Indians, Colonists, and Governments in Colonial Illinois Country (Philadelphia: University of Pennsylvania Press, 2015).

[7] Clarence Walworth Alvord, ed., Cahokia Records, 1778-1790, Collections of the Illinois State Historical Library (Springfield: Illinois State Historical Library, 1907), 2: 501.

[8] Ibid., 2:566–567.

[9] Bethel Saler, The Settlers’ Empire: Colonialism and State Formation in America’s Old Northwest (Philadelphia: University of Pennsylvania Press, 2015), 102; Catherine Cangany, Frontier Seaport: Detroit’s Transformation into an Atlantic Entrepôt (Chicago: University of Chicago Press, 2014), 114, 117–118; Hannah Weiss Muller, “Bonds of Belonging: Subjecthood and the British Empire,” Journal of British Studies 53, no. 1 (2014): 29–58. Also see, Gitlin, The Bourgeois Frontier: French Towns, French Traders & American Expansion, 57-64.

[10] Donald Fyson, Magistrates, Police and People: Everyday Criminal Justice in Quebec and Lower Canada (University of Toronto Press, 2006), 16. Also see: Evelyn Kolish, Nationalismes et conflits de droits: Le débat du droit privé au Québec, 1760-1840 (LaSalle, Québec: Hurtubise HMH, 1994); Arnaud Decroix, Michel Morin and David Gilles, Les tribunaux et l’arbitrage en Nouvelle-France et au Québec de 1740 à 1784 (Montréal: Éditioins Thémis, 2011); Michel Morin, “The Discovery and Assimilation of British Constitutional Law Principles in Quebec, 1764-1774,” The Dalhousie Law Journal 36, no. 2 (2013): 581–616.

[11] Hans W. Baade, “Marriage Contracts in and French and Spanish Louisiana: A Study in ‘Notarial’ Jurisprudence,” Tulane Law Review 53, no. 1 (1979): 1–92; Stuart Banner, “Written Law and Unwritten Norms in Colonial St. Louis,” Law and History Review 14, no. 1 (1996): 33–80; Carl J. Ekberg and Sharon K. Person, St. Louis Rising: The French Regime of Louis St. Ange de Bellerive (University of Illinois Press, 2015), 127–146. 

[12] Saler, The Settlers’ Empire, 122.

Cover Image: Engraving of a French Habitation in Illinois Country by Tardieu l’ainé (Sr.) in George Henri Victor Collot, A Journey in North America containing a survey of the countries watered by the Mississippi, Ohio, and Missouri…Atlas (Paris: Arthus Bertrand, 1826). Courtesy of the John Carter Brown Library at Brown University