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The Intendant and the Sovereign Council

In the preceding chapter a sketch has been given of Talon's endeavors 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 favor 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-voyeur, or general overseer of roads. The office had been established in 1657, when Rene Robineau de Becancourt was appointed grand-voyeur 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-voyeur 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 councilor 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 misdemeanors 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 licenses 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 favorably 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 misdemeanors, 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 practiced, 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 honor, of humanity and divine love. The civil authorities, more interested in the financial and political advantages than in the question of principle, favored 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.

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Chronicles of Canada, The Great Intendant, A Chronicle of Jean Talon in Canada 1665-1672, 1915


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