The Custom of Paris in New France

The Custom of Paris (French: Coutume de Paris) was one of France's regional codes of civil law. It applied to Paris and the surrounding region from the 16th through the 18th century and was applied to French overseas colonies including New France.^[1] First codified in 1507 in the city of Paris, the Custom of Paris represented a compilation and systematization of medieval customary law. It was the main source of law in New France from the earliest settlement, though other provincial customs were sometimes invoked in the early period. In 1664, by the terms of the charter of the Compagnie de l'occident, Louis XIV made the Custom of Paris the only legitimate source of civil law throughout New France and other French colonies. Later, the customary law was replaced by the Civil Code of Lower Canada in 1866 which incorporated English Law into its existing legal framework.^[2]

Origins

A French Inheritance

The Custom of Paris first originated in sixteenth-century France as part of a larger project of centralization of law. France contained a plurality of laws emanating from its legal heritages of codified Roman law and customary law.^[3] Originating around the tenth and eleventh centuries, the Custom was one of 360 imprecise bodies of law practiced across the different regions of fifteenth-century France. Given its prestige in virtue of being practiced in the capital of the kingdom, it began to be refined between the thirteenth and fifteenth centuries, as part of a project of codification of all French Customs invoked by King Charles VII through the ordinance of the Montil-les-Tours in 1453.It was first codified in 1510, and subsequently revised in 1580 by order of King Henry III following a period of disuse.^[4] The Custom was a relic of the Middle Ages that attempted to incorporate through its 362 articles elements of feudal society into the nascent bourgeois commercialization of the Ancien Régime.^[5]

Initial Implementation in New France

In 1663, upon the dissolution of the ‘Compagnie des Cent-Associés’, New France had come under direct French royal rule. The Custom of Paris was officially introduced in New France by Article 33 of the edict of establishment of the ‘Compagnie des Indes Occidentales’ in May of 1664 (this company retained control of the colony for a decade thereafter). However, the Custom had been a part of the justice system of Canada since the 1627 founding of the ‘Compagnie des Cent-Associés’, which had previously managed French holdings in North America. The unilateral application of the Custom to the Ancien Régime colonies was the solution adopted by the French monarchy after 1664. Despite this judicial unity, customary practice varied across regions. Institutionally, the colony found itself governed by a sort of three-part government in 1665. The Intendant, who represented one third of this body, was charged with the policy areas of justice, the police, and finance, for which the Custom of Paris was relevant. The Custom evolved rapidly in New France, to the extent that in 1760 it was (as applied in Montreal and Quebec) as the “laws of Canada”, and on certain points had diverged significantly from its counterpart in France.^[6]

Structure of the Custom in New France

The Coutume de Paris was divided into sixteen titles concerning family and inheritance, property, and debt recovery.^[7]

Land

Landed property came in two distinct forms, as a ‘seigneurie’ (‘en fief’) or as a ‘roture’; the one was considered ‘noble’ (though the owner did not have to be a member of the nobility) and the other ‘common’. Under this feudal arrangement, a single tract of land could be held as both a roture and as a portion of a fief; the roture was held, subject to a number of restrictions and payments, under the seigneurie. For example, the Custom of Paris provided for annual payments (the ‘cens’) by roture holders to the ‘seigneur’, as both revenue and as a token of submission.^[8] ‘Lods et ventes’ was another mandatory payment, a mutation fine for rotures that changed hands and amounting to one twelfth of the sales price,^[9] and derived from the cens, as did other fines and the right of ‘retrait’.^[10] Additionally, the Custom of Paris accorded a number of privileges to seigneurs over the rotures in his/her fief and their holders. These included the right of jurisdiction (i.e. the seigneur could act as magistrate), fishing and hunting restrictions, as well as the ‘banalité’, a monopoly over mills and milling, water power, hunting, and fishing.^[11] Peasants also had to pay a fixed quit-rent for land as specified in their concession contracts, and tenants were not permitted to run down their holding to the point that the revenue it generated would fail to cover their annual seigneurial dues. The Custom of Paris also contained the equivalent of a building code, outlining rules for commonly owned property, but in general police regulations were more important for construction, fire prevention, and public hygiene in New France.^[12]

Property

Under the Custom of Paris, property was divided moveable assets (‘biens meubles’; debts or ‘obligations’ were included in this category) and fixed assets (‘biens immeubles’). In the interest of encouraging trade, biens meubles could not be mortgaged and were not considered a ‘bien propre’, or personal belonging external to the marriage community, unless specified in the marriage contract. Biens immeubles (such as land, offices, and ‘rentes constituées) were considered biens propres if acquired by one of the spouses prior to the marriage, or inherited directly by either spouse. Biens immeubles purchased during the marriage were considered to be ‘conquêtes’ and were incorporated into the community, but would become ‘propres’ as soon as the succession was open. The distinction between biens propres and ‘biens communs’, the largely moveable assets incorporated into the marriage community, was very important because many limitations were imposed on the disposal of biens propres.^[13]

Marriage & Inheritance

Under the Custom of Paris, when a couple got married in New France they entered into what was called a ‘communauté des biens’ or “marriage community”. This community is the socio-legal entity governing the property relations of the married couple.^[14] In theory this meant that other than property or other fixed assets purchased prior to marriage (or inherited directly), remained personal property (biens propres),^[15] both the husband and wife owned property jointly. The man was the “master of the community”, meaning that the woman could not alienate, buy, or sell property (or conduct any other transactions involving property) without approval from her husband. However, the man was also required to get approval from his wife to undertake a transaction involving any of their joint property.^[16] Essentially, the marriage community was the owner of the property, not either individual separately. It was possible to remove oneself from the bond of the marriage community if both parties agreed to enter into a regime known as the ‘séparation des biens’. This recovery of legal rights by judicial separation could be awarded to a wife who could prove that her husband was unfit in some way to administer their property.^[17]

The Custom of Paris also defined what would be done with people’s property at time of death and therefore living wills were fairly rare. As this was a legal matter, in the event of the death of a spouse it was important to take inventory of the property owned by the family, and a notary would do so in the event of the death of either spouse. In order to have some control over the process of inheritance and to provide safeguards for the widow and surviving family (i.e., in order to deviate somewhat from customary principles in order suit family needs and preferences) the couple could choose to specify the configuration of family inheritance, to an extent, in their marriage contract. If no marriage contract were made at the time of the union, upon the death of either the husband or wife, the surviving partner would retain half of the property of the marriage community – and half the debt.^[18] The other half would be split evenly amongst the surviving children. Children were entitled to this whether they were male or female, and could access their inheritances at age twenty-five (the legal age of majority). They could not be disinherited. ‘Noble lands’ (i.e. seigneuries, whether or not these were held by nobles) were subject to different rules of inheritance; whereas roture land had to be divided equally, a fief was inherited unequally with one-half going to the oldest son and the rest being divided equally among his brothers and sisters.^[19] In the case of the death of one partner in a childless couple, the Custom stipulated that the half of the community of goods typically reserved for the children of the family could go to a male cousin, a brother, or even the ruling seigneur .^[20] However, marriage contracts were often used to alter the rules of inheritance, and to provide the surviving spouse and family with one or more financial safeguard(s). The most important such safeguard was the ‘douaire’, a fixed sum set aside for the wife to live on in the event of the husband’s death from the half of the marriage community that was reserved for the children. The douaire could take two forms: ‘coutumier’, consisting of the returns on half of the husband’s legacy of goods, which could not be alienated during the husband’s life or claimed by creditors after his death unless the wife formally renounced her rights, or ‘préfix’ (conventional), consisting of a sum of money stipulated by the respective families of the spouses in the marriage contract, with the same rights of the wife applying. The douaire coutumier was more common among higher-class families in which both spouses held extensive assets, while the douaire préfix was much more common in general and almost universally used by lower-class families.^[21] Ultimately, the couple’s children would inherit the douaire, but the widowed woman had the right to live on its returns for the duration of her life.^[22] Additionally, a widowed woman could choose to walk away from the communauté upon the death of her husband and not be responsible for any of the property or debt. This would be done if the debts outweighed the value in the property she was inheriting. Under this agreement, the widow also retained control of her douaire, which then became quite valuable and important for her to be able to get back on her feet. This option was unavailable to widowed men as they were typically the partners that incurred and held marital debt .^[23] Both man and wife had the option to put aside a certain amount of property (usually a sum of money, certain biens meubles, or a combination of both) untouchable by creditors and not belonging to the community for the other spouse to claim in the event of the death of their partner. This ‘préciput’ typically represented half the value of the douaire . Almost all contemporary married couples created a préciput in their marriage contracts, and the vast majority of préciputs were reciprocal.^[24] In practice, the préciput allowed the widowed spouse to claim their bed, clothes, and personal effects from the community prior to the inventory and division of the community and the payment of debts.^[25] The financial security of children of a deceased parent was safeguarded in the Custom of Paris by the ‘légitime’, which was a sum equal to one half of what each child would have received in an equitable division of the community of goods if no endowments or bequests had previously diminished it. Every child heir of the deceased parent had a right to this minimum amount of inheritance, and children who had been previously endowed from the family estate to the detriment of the légitime of one of their siblings would have to compensate that sibling appropriately. In accordance with this stipulation, a parent had the right to bequeath property in a written will only if such action did not infringe on the légitimes of legitimate heirs, and only for the value of biens meubles and one fifth of inherited land. The community of goods could remain undivided after the death of one spouse if all implicated parties consented to such a state of affairs, so that the estate could be dissolved and its components divided at a later, more opportune time, usually after the death or remarriage of the surviving parent. In the various transactions involved in the case of the death of both parents, a legal guardian, who was usually a relative, would protect the rights of minor orphans. Depending on whether the estate was dissolved after the death of one or both parents, the child heirs would share equally in either half of the community, less the douaire and often the préciput, or the whole community.^[26]

Debt Recovery

The Custom of Paris contained four titles regarding debt collection and commercial transactions that were greatly influenced by the canonical censure of usury. For instance, with the exception of rentes contituées that allowed interest, notaries could not include interest charges within their contracts.^[27] Notaries were significant in the French legal tradition, in contrast to English practice, as they were valued for their services in drawing up agreements and for role as arbitrators.^[28] Performing the function of judges, notaries facilitated peaceful settlements through transactions, accords and ‘désistements.’ Most of notaries’ work concerned property law, primarily in the areas of deeds, inheritance, indebtedness, and investment.^[29] Evidence of efficient notarial work that prevented civil conflict is found in the fact that few cases concerning real property went to courts; typically, such issues were resolved between the parties.^[30]

From a desire to encourage commerce within the colony, ‘biens meubles’ could not be mortgaged under the Custom, as previously mentioned.^[31] In instances of bankruptcy certain creditors were privileged including women, judicial officials, and feudal lords.^[32] Depending on the object and extent of indebtedness, debt claims had to be filed within a given amount of time. Debts were secured by all the property of an individual.^[33] When lawsuits led to a court orders to recover debts, creditors had three options for lawful seizure in cases of non-payment of debts: ‘saisie execution’ involving the seizure of bien meubles; ‘saisie réelle’ passing the sale of land to a commissioner; and ‘saisie arrêt’ in which property or money was preserved by a third party pending a court trial.^[34]

Geography of the Custom in New France

The Custom of Paris was understood to apply to all of the French colonies of the Ancien Régime including the French West Indies and America.^[35] The application of the Custom of Paris in the territories of New France varied periodically analogous to France’s losses and recuperation of colonies.^[36] At its peak, the Custom applied to the colonies of Canada, Acadia, Newfoundland, Louisiana, and Île Royale.^[37] The Custom was practiced in the St. Lawrence Valley in the colony of Canada.^[38] Towards the east, the Superior Councils of Louisburg and Cape Breton akin to those of the southern colonies of New Orleans and Louisiana observed the same body of law.^[39] The absence of comparably formal administrative structures in continental Acadia and the western fur-trading territories led to a different pattern of legal development in these areas.^[40] English common law was practiced in the adjacent territories of New England.^[41]

The Compagnie des Indes Occidentales envisioned a system of judicial unity within a framework of institutional diversity that was to be facilitated by the judges within all of the colonies.^[42] The Company desired that judges in the colonies observe the Custom of Paris.^[43] Given the nature of the seventeenth and eighteenth-century modes of governance and arbitration, there was considerable regional variation within the practice of the law, even within a colony. From 1665 the colony’s governor controlled foreign relations and the military and, amongst other individual functions, the intendant and the Sovereign Councils of Quebec and Louisbourg operated as judicial bodies. The Custom of Paris was not a comprehensive body of law, as its provisions were not inclusive of neither commercial relations nor criminal law. In such areas that the Custom of Paris did not cover, judges were free to interpret any custom that they felt best relevant though, in theory, Roman law was meant to prevail.^[44] The flexibility of judicial interpretation was qualified by the Ordinance of 1673 – also known as the Code Marchand – that regulated commercial law and the Criminal Ordinance of 1670.^[45]

The Custom of Paris in Practice

Inheritance in Practice

The general historiographic consensus based on case studies in Quebec is that where egalitarian practices of inheritance, as stipulated in the Custom of Paris, were observed in the early period of the colony – in the sixteenth and seventeenth centuries. However, by the mid-eighteenth century there were various qualifications favouring preferential treatment. In the early settlement of New France, settlers would practice equality of the division of property post-mortem in its purest form, such that they were frequently more egalitarian than what the Custom prescribed.^[46] Between the seventeenth and eighteenth centuries qualifiers such as ‘donations entre vifs,’ dowries and wills were rare.^[47] During this period wills were primarily a form of demonstrating religious piety through their spiritual rhetoric as opposed to temporal concerns for the division of property.^[48] Equitable settlements stemmed from a familial interest in preventing an excessive fragmentation of land.^[49] During this period of early settlement, families profited from the abundant available land and frequently purchased vast plots with the foresight of establishing their offspring post-mortem.^[50] Despite the fact that many of these lands remained unexploited during the lifetime of parents, ‘habitants’ were willing to pay the seigneurial dues for these tracts.^[51] At this time, the law that provided for the equitable distribution of land amongst both female and male offspring was observed, so that girls received their due portion of the estate in conjunction with their allocation of bien meubles.^[52] Egalitarianism took on many forms so that if children did not receive an inheritance of land, they would be compensated with additional bien meubles.^[53]

The eighteenth century marked a progressive shift from egalitarian practices to more discriminatory forms of inheritance. Habitants increasingly used donations entre vifs to gift land deeds to a single heir before death.^[54] Through this method, they were able to circumvent the division of this property post-mortem. This practice led to inequality amongst heirs whereby most inheritances by the nineteenth century did not provide compensation for those who were disadvantaged.^[55] This shift from an egalitarian system to inequality was motivated by numerous factors including the institution of testamentary freedom in 1774, the development of the grain market, and the intensified bond between man and land.^[56] The rise of rural population density was a major catalyst of this shift, as it led to the saturation of land; in consequence, familial interests shifted from the preparation of all children for a productive life through individual landholdings to the safeguarding of the patrimonial family.^[57] Some historians, such as Sylvie Dépatie who performed a case study of Île Jésus, have argued that rather than the changing man-land ratio, the primary use of the deed stemmed from concerns for the productive capacity of property.^[58] Notably, donations were not limited to French Canada – or the jurisdiction of the Custom of Paris – and occurred in areas that were primarily based on cultivation such as Andover, Massachusetts in New England.^[59] These deeds do not demonstrate a pattern of preferential treatment neither for the primogeniture nor for the ultimogeniture and suggest that the primary concern was pragmatic – the preservation of landholdings – though emotional considerations is assumed to have been a motivating factor.^[60] Within these deeds, parents attempted to retain a degree of control following the secession of legal title to the land and property through exactions, ranging from the maintenance of younger siblings and the guarantee of their endowment upon marriage, to the supply of food requirements and basic necessities for the parents.^[61] Some children found these exactions so onerous that they annulled this right following a year or two. Though notaries performed the donations, they fundamentally represented the concerns and desires of the habitants.^[62]

Throughout the centuries of its existence in New France, the system of inheritance under the Custom was complicated by internal family conditions. Sons who married before the death of their parents typically desired their portion of land, and would be provided such through a donation entre vifs.

Marriage in Practice

The nature of the socio-economic environment in rural Quebec was conducive to marriage. In contrast to France, the social pressures for marriages to good households was not as pronounced in the new colony, which allowed for greater leniency in gaining parental consent.^[63] Sailors and soldiers from France required the approval of their superiors in order to marry in the colony.^[64] Parental consent as required under the Custom of Paris became problematic when parents were unwilling to consent to young marriages.^[65] The imbalance of the sexes in the new colony led to a great number of marriages between youths, which was especially pronounced in the early years of settlement: the average age for girls was twelve years and for boys fourteen. Furthermore, the vast availability of land acted as an incentive for marriage. Local administrators facilitated young marriages to despite the absence of parental consent and the reprimand of the metropole and the local Sovereign Council.^[66] The Sovereign Council would punish clandestine marriages by either exiling the married couple to Île Royale or annulling the marriage.^[67]

Marriage contracts, while not required under the Custom of Paris, were a form of protecting economic interests and a form of security in the New World.^[68] Marriage contracts were significant as they contained important safeguards for widowed men and women, as well as the children of such people and orphans, as previously discussed.^[69]

Legal separations were uncommon in eighteenth-century rural Quebec. Typically, couples desiring to separate would circumvent the legal process and create a contract through a notary to dissolve the communauté de biens by dividing their biens meubles and immeubles.^[70] It was difficult for women to obtain legal separation, the ‘separation de corps;’ if separation was attained, women lacked full freedom as they could not mortgage nor alienate their biens immeubles without the approval of the justice or their estranged husbands.^[71]

Upon the death of a spouse in the seventeenth and eighteenth century, remarriage was common and frequently occurred without great delay, and this situation created additional complexities for inheritance and property principles under the Custom of Paris, which will be discussed subsequently.^[72]

Implications of the Custom for the Family

The Custom of Paris turned the family into a legal and corporate entity that owned property (excluding certain exceptions) collectively. This arrangement contributed to egalitarian family structures and a preoccupation with “fairness” in family matters in New France.^[73] While technically property was divided into biens propres and biens de communauté at the inception of the family (marriage), early colonists often had no biens propres, or brought plots of land that were virtually worthless into their marriages, only reaping the benefit of such land after years of combined labour. Thus, in practice, many such biens propres were put into the community of goods in order to avoid future disputes about values added and the like. Even in subsequent generations, when land was well-developed and children each inherited a portion of the family estate, inheritances of family land were often treated as moveable property (biens meubles) and thus incorporated into subsequent marriage communities, complicating patterns of inheritance and linking families together in intricate ways.^[74]

The strict rules set out for inheritance by the Custom of Paris commonly forced early modern families in New France (especially those of the first colonists) to act outside the law in the interest of self-preservation. Given that upon the death of one half of a childless couple, the half of the community of goods customarily reserved for the children would revert to the relevant seigneur, most contemporary marriage contracts specified a ‘don mutuel’; this meant that if the couple in question was childless, the entire community of goods would be inherited by the surviving spouse in the event of the death of either the husband or the wife. This was an especially crucial practice for the earliest settlers, who had no family around to support them if their spouse was to die, and became increasingly common throughout subsequent generations. It must be noted that customary law prohibited such ‘dons’, but notaries drew them up nonetheless, as they were recognised to be key to the survival of individuals living in New France.^[75]

The inheritance principles of the Custom of Paris, which stipulated that children would inherit significant and equal portions of the community of goods of their family of origin, often served to keep these families tightly knit, as parents frequently opted to “set up” their children for their adult lives or ensure that their children would remain close at hand to care for them in their old age by providing them with advances on their legally provided inheritances or donations entre vifs, rather than dowries. Parents (in practice, fathers) could also favour their heirs via bequests in their wills (only common in cases of séparation des biens, which occurred more among the upper classes). If parents belonging to a marriage community did wish to favour one particular heir, customary inheritance laws necessitated a donation entre vifs, since after the death of the parents, an egalitarian division of assets would apply. Even examples of contemporary marriage contracts demonstrate that the ideals of the Custom of Paris with regards to family, inheritance, and marriage imbued families with a closeness and collaborative spirit in setting up the marriage communities of their children and protecting them as best they could.^[76]

The Custom of Paris also had important implications for blended families, which were extremely common in New France (throughout the “New France period” in early modern Quebec, approximately one quarter to one third of marriages involved at least one partner who had been previously married – this proportion decreased over time). In the case of a widowed mother who remarried, the Custom called for the dissolution of her former marriage community, which had been inventoried. Her half of the community of goods, in addition to her douaire and possibly her préciput, became moveable goods that were incorporated into her new marriage community, which was managed by her new husband. Her children from her first marriage would have no rights to their inheritances until they reached the age of majority (legally set at twenty-five); any children born to the new couple would inherit from their community of goods. However, when couples desired that each of their respective children and children together should receive an equal inheritance upon their deaths (which was common, especially among the lower classes), they circumvented these complications by adopting each other’s children (or having the husband adopt the wife’s children from a previous marriage). Thus, customary inheritance laws enhanced and facilitated the economic and social blending of families.^[77]

Implications of the Custom for Women

According to the Custom of Paris, a married woman was legally considered to be a minor, and as such was under the guardianship of her husband.^[78] The husband, for his part, was legally the “master of the community of goods” (or communauté de biens). As such, the wife was unable to carry out transactions independently; to do so, she required the permission of her husband. She was, however, protected from egregious control of her affairs by her husband by the customary (here, customary refers to “from the Custom of Paris”) provision that he had to secure her consent before mortgaging, selling, or alienating any of the couple’s joint property, embodied in the community of goods. Empirical evidence suggests that while this provision was strictly obeyed, it was largely a formality, and there is no evidence that a wife ever officially exercised her power of veto over a transaction initiated by her husband.^[79] Of the importance of the community of goods to the implications of the Custom of Paris for early modern women living in New France, historian Allan Greer says:

“The relationship between the spouses was clearly unequal, but the comunauté de biens, the fundamental principle governing marital property arrangements, gave women legal protection and a stake in family possessions that could not be ignored by any male ‘head of household’.” ^[80]

The implications of the Custom of Paris regarding property were particularly important for widows. Under the Custom, the surviving spouse (husband or wife) had a right to half of the common property encompassed in the community of goods, but the personal property of the deceased acquired prior to the marriage (biens propres), as well as the other half of the common property, was inherited by the couple’s children. Marriage contracts, however, often specified the conditions of inheritance for a widow in such a way that their financial future was prioritized over that of the family as a whole.^[81] The “master of the household” role of the husband, and his effective control over the couple’s marital property, meant that he had significant power over the material well being of the family in the event of his death. Thus, the wife largely depended on the managerial abilities and good faith of her husband in according her sufficient material holdings off of which to live and support her family in her potential widowhood. The married woman was not even allowed to manage her own inheritances, though the usual (largely nominal) rules about asking her permission applied to these. It was not possible to contravene the Custom’s principle of male marital authority or the legal incapacitation of married women by matrimonial convention. The best an egalitarian-minded couple could do was to stipulate in their marriage contract that the wife would have the right of administration over her own goods (i.e., benefit from their returns), but even in this case she did not have the right to alienate those goods freely and unilaterally. The essential point of this option was to protect the woman’s fortune from the possible incompetence or malfeasance of her future husband. It also made the wife’s nominal veto right over transactions more real in practice. However, contracts including such provisions were quite rare in the early modern period in Quebec.^[82] The Custom of Paris did include some clauses that allowed wives to evade their apparent legal and economic subjugation by their husbands, if their husbands were inclined to permit such a state of affairs. Once married, the husband could, as head of the household, explicitly authorise his wife to manage (though not to dispose of) her inheritances, make her his procurer general or special procurer, or recognize her as a public merchant capable of transacting autonomously. However, contemporary husbands were not commonly predisposed to initiating such measures.^[83]

The Custom of Paris provided for several specific measures for evening out the “balance of power” between man and wife; the most important among these were the douaire and the right of renunciation of an indebted community of goods; also important was the préciput.^[84]

The Custom of Paris stated that if such a right was specified in the marriage contract, a widowed woman could choose between receiving a douaire coutumier and a douaire préfix. The vast majority of early modern marriage contracts in New France provided for douaires, and in Quebec and Montreal, the vast majority of wives with rights to douaires also had the right to choose their form. However, the principle that transactions involving the douaire could not be carried out by the husband without the wife’s presence or written permission was not always respected.^[85]

One of the most important protective mechanisms for a widowed woman under customary law was her right to renounce a community of goods plagued by insurmountable debt and effectively walk away with her douaire.^[86] A widowed man did not have this right to renounce the community’s debt.^[87] The contemporary Canadian jurist Cugnet explains this principle as follows, demonstrating the Custom’s inherent fairness with regards to its treatment of women:

“The husband being the master of the community and being able to dispose of it at will, it is necessary to afford the wife the privilege of renouncing the community, and to give her by this means the ability to rid herself of debts incurred during the marriage and transacted by the husband, as he alone could incur debts, without her consent, and the wife being unable to do so at all, without being so permitted by her husband, it must be the choice of the wife to accept or renounce the community.”^[88] [Translated]

Accordingly, in early modern Quebec, almost all marriage contracts stipulated that a widowed woman renouncing her indebted marital community of goods could not be held accountable for any debts of that community. Normally, the widowed woman could only be held accountable for debts on her own goods (biens propres) if she had an autonomous enterprise separate from her husband’s and was recognised as an autonomous public merchant by her husband, or if she decided to continue to manage the community as an undivided entity with her minor children. Thus, it was in the best interest of creditors to insist that the wife be present for and that she participate meaningfully in all transactions involving the community of goods. This clause therefore acted not only to protect women in widowhood, but also to enhance their stature and involvement in family finances during the marriage. The majority of marriage contracts in early modern Quebec stipulated that the future spouses would not be held accountable for debts incurred by their partner prior to the marriage, meaning that if such a debt was paid by the community of goods, the spouse that did not incur the debt would have to be compensated for that payment upon the dissolution of the marriage. It was customarily permissible for a couple to stipulate in the marriage contract that the widowed woman would have the right, should she renounce the indebted community, to retake her material input to the marriage free from any debt claims. This ‘clause de reprise’ was included in the majority of relevant marriage contracts. As previously mentioned, the widowed woman who renounced the community could walk away with her douaire, but unless explicitly specified otherwise in the marriage contract, she did not have the right to also retain her préciput in the case of renunciation. Therefore, almost all relevant marriage contracts did contain such a specification. Finally, according to customary law, the widowed woman could claim from the community, prior to its division, the value of any of her biens propres that had been alienated during the marriage without the profits of that alienation being used to purchase another good. While technically this clause applied to both spouses, it essentially existed to protect the wife from the abuses of the husband-administrator, who would benefit from the returns on such a transaction at the dissolution of the marriage when, as part of the community, it would be divided between the spouses, despite being the profit of the alienation of a personal belonging of the wife. If the value of the community was insufficient to provide compensation for such a transaction, the widowed woman could lay claim to the bien propres of the deceased husband; the husband, if he was attempting to benefit from this clause upon the death of his wife, had no such option.^[89]

The Custom of Paris also provided widowed women with other specific benefits. The husband’s heirs were obliged to provide her with mourning clothes financed by their inheritance, while a widowed husband had to fund the purchase of his mourning clothes personally. Somewhat amusingly, the explanation for this clause was that it compensated a widowed woman for the fact that she would be reviled if she did not formally mourn her husband for at least a year, while no such expectation constrained a widowed man.^[90]

The dissolution of a marriage between living spouses was uncommon in New France, but it did occur. While the Custom of Paris did not specify any hard and fast rules for such a situation, there is empirical evidence of a notary drawing up a separation agreement for an early modern Quebecois couple (Félicité Audet and Etienne Ledoux) that specified a fairly egalitarian custody arrangement regarding the couple’s children together and providing the wife with a perpetual material settlement in the form of agricultural provisions. The agreement also dissolved their community of goods, enabling the wife to sell land and purchase a farm and a loom in order to support herself and her children. However, Audet likely counted herself lucky, as such a favourable settlement depended on the good will of the husband.^[91]

The notarial evidence from early modern Quebec suggests that while the value of moveable goods bequeathed to children leaving the family hearth was about equal for both sexes, land was endowed in a very discriminatory fashion. While departing sons sometimes received a piece of land when they married, this was not the case for daughters in the same position. Customary law accorded women a share in property, including land, upon the deaths of their parents, such that in the mid-eighteenth century, they did in fact receive a part of the family estate. However, when parents created specific distributions of family property to come into effect if they should die, they prioritised getting their sons established and assumed that the families of their future sons-in-law would do the same, thus taking care of their daughters. Daughters were therefore often left out of the inheritance of land. Throughout the history of New France, habitants specifically increasingly disposed of their property while they were still living, such that transmission of land through the female line had practically disappeared by the end of the eighteenth century. Truly egalitarian distributions of land had been possible and did occur in the early period because habitants were often able to acquire huge holdings with the express intention of providing future farms for a large family. However, when push came to shove, sons were prioritized over daughters, despite the equitable inheritance principles of the Custom of Paris.^[92]

One final interesting implication of the Custom of Paris for early modern women in New France is that customarily, daughters who entered religious orders were excluded from any inheritance of the community of goods of their families of origin. Such daughters were instead granted one-time dowries. For this reason, it became quite economically practical and common for daughters of typically large, financially strained upper-class early modern Canadian families to enter religious orders.^[93]

The Legacy of the Custom of Paris in New France

After the conquest of New France by the British, the Royal Proclamation of 1763 introduced English common law in the former French colony. The new French Canadian subjects that the England had just acquired were reluctant to accept this reality, and the Royal Proclamation of 1764 subsequently allowed for French law to be used in legal interactions between parties when both were natives of New France. However, French Canadians continued to protest even this situation, particularly by continuing to use notaries to handle their legal affairs, as it had been done under the Custom of Paris. In 1774, wary of the rebellion brewing in the Thirteen Colonies, the British sought to appease French Canadians and co-opt their support via the provisions of the Quebec Act, which reinstated French private law pertaining to property and civil rights (i.e., the Custom of Paris) by allowing “Canadians” to cite the “laws and customs of Canada”. The Quebec Act thereby contributed to the survival of French civil law based on the Custom of Paris in Canada, while affirming the overarching influence of English common law and its hegemony in criminal matters. The partition of the colony into Upper Canada (largely English) and Lower Canada (largely French) in the Constitutional Act, 1791 ensured the constitutional survival of French civil law in Canada. Even after the adoption of the Act of Union (which affirmed that the law of each Canadian province would remain in force unless amended by a law of the United Canadas) in 1840, legislators preserved the civil law tradition in Lower Canada (then known as Canada East). Among the reforms undertaken after 1840 was the codification of laws governing private law in Canada East, which had over the years moved away from historic French customary law (i.e., the tenets of the Custom of Paris as applied in New France) in order to better meet the changing needs of the French Canadian population, and had also incorporated elements of English common law. The result of this project, the Civil Code of Lower Canada, came into force in 1866, and the Code of Civil Procedure followed it in 1867. These codes symbolically confirmed that Quebec belonged to a civil law tradition with roots in the Custom of Paris, and the province is unique in Canadian history in entering into Canadian Confederation with a codified private law and a system of civil law statutes. Thus, the legacy of the Custom of Paris in New France is that its evolved successor, Quebec’s modern system of civil law, laid the foundation for Canadian bijuralism, which has been a distinct and important feature of justice in Canada since its inception.^[94]

References