Legal Pluralism and the Search for Sovereignty in Post-Conquest Quebec

Aaron Willis

The sovereignty of British political institutions and English laws in governing Quebec eroded for a variety of reasons. One source of this erosion was the ability to work outside the strictures of the Common Law granted to officials by the use of European Natural law theory. A second critical cause is the rise of a strategy of continuity of, and collaboration with, existing hierarchies. One critical example of this is the growing importance of protecting French Catholic “customs and usages.” A focus on property eventually expanded to include broader aspects of elite cultural power. The facts on the ground made shared authority between conquered and conqueror a necessity. The strategies and ideas developed in Quebec offered critical precedents for integrating non-Britons and securing British authority in India and beyond. In the end, Quebec was not simply a colonial outpost shaped by outside influences; strategies developed in North America would influence British policy across the globe.

After 1763, stability in Quebec increasingly depended on the maintenance of an idealized French Catholic social order. While many of the assumptions underlying British views of Canadien society were ultimately imagined, as it would be in places like India and Africa, it served both officials and the seigneurial class to create policies which enshrined this illusory hierarchy.[1] Since effective authority was more important than sovereignty, officials began to focus on the protection of the rights and privileges of the pre-conquest elites rather than the imposition of English norms. The British state was confined “to the passive and defensive role of maintaining existing rights and customs.”[2] When the goal of the British state was the protection of diverse existing traditions, the sovereignty of the Common Law and Parliament was not a viable legal or political concept. The necessity of this continuity with pre-conquest norms was put forth most forcefully by Quebec’s acting governor Guy Carleton after his arrival in the colony in 1765.

Carleton built the case for his plan to strengthen and continue the established social structures in the colony as a means to ensure loyalty and stability. He reminded Shelburne, the Secretary of State for the Southern Department, that the Canadiens were “not a migration of Britons, who brought with them the Laws of England, but a populous and long established colony, reduced by the king’s arms, to submit to his dominion, on certain conditions[3] [emphasis in the original]. According to Carleton, the existing legal structures “established subordination, from the first to the lowest, which preserved the internal harmony, they enjoyed until our arrival, and secured obedience to the supreme seat of government from a very distant province.”[4] The English legal system, on the other hand, lacked any legitimacy; Carleton noted that the Canadiens continued “to regulate their transactions by their ancient laws, tho’ unknown and unauthorized in the supreme court, where most of these transactions would be declared invalid.”[5] If Canadiens refused to recognize the courts and operate within their walls, British rule would prove a chimera and the stability of the state questionable. As Carleton told Shelburne, the body of laws must be “the Foundation of all, without which, other Schemes can be little better than meer Castles in the Air.”[6]

custom_of_paris_as_practised_in_quebec_during_the_french_government

The sequel of the abstract of those parts of the custom of the viscounty and provostship of Paris, which were received and practiced in Quebec in the time of the French government…, Wikimedia Commons, public domain.

As evidenced in a report from 1765, the Board of Trade increasingly agreed that it was best to continue laws respecting property. In addition, Catholics were not to be excluded from political rights that secured their status, estates, and the stability of the colony. The question of property and maintenance of the law would be similarly important in India where many of the same justifications were used to protect older legal traditions.[7] The principal recommendation was “that in all cases where any Rights or Claims founded upon any Transactions and Events prior to the Conquest of Canada shall come into question, the several Courts shall admit and be Governed in their proceedings by the French Usages and Customs.”[8] Whether the authors introduced this language or borrowed it from another source is not clear, but it begins to pepper reports and discussions in the formulation of a final policy. Far from the ‘intolerable’ and authoritarian act decried by its critics on both sides of the Atlantic, the Quebec Act was meant to accede to the desires of the Catholic Church and the seigneurial class.

Later recourse to both the language of custom and the value of the landed classes in formulating a policy for India suggests a strong influence from the practices and ideas developed in Quebec. British politicians, jurists and officials also built upon the writings of Montesquieu and principles of Natural Law theory to develop a strong case for the bond between laws and the historical and cultural foundations of the peoples they govern. Those supporting the practice of legal diversity and social continuity understood society and law to be so intertwined that only negative consequences would emerge from the separation of a people and their traditional laws.[9] Legal pluralism and legal innovation beyond the Common Law tradition, then, became a critical part of the wider imperial structure and underpinned its ability to function while ruling over a diverse population with distinct historical, legal, and cultural traditions. For its supporters this flexibility ensured the order, legitimacy, and efficiency of British rule well beyond Quebec.

Incorporating Catholics in Quebec and the other ceded territories proved critical in developing legal arguments in support of protecting local customs over the direct imposition of English legal and political norms. After Pitt’s India Act (1784), as the government increasingly reformed East India Company structures and policies, British officials formulated a strategy based on the protection of “customs and usages” and the importance of the landed classes. These fundamental traits of British rule and reform offer tantalizing links to the practices and ideas developed in Quebec. Landed elites provided the British government a means to underpin their rule in Bengal and ultimately their means of managing the whole of the Indian subcontinent after the 1790s. The pillars of reform used in the Permanent Settlement mirrored those formulated in Quebec.[10] The language of ‘customs and usages’ and the trade-off between imperial officials and local elites ensured that British rule was supported amongst key populations within Indian society.

The imperial legacy of Quebec emerged from the process of formulating policies for incorporating French Catholics over more than a decade. What officials developed in their examination of Quebec was an argument in favor of a set of imperial practices and principles that could be generally applied to the integration of non-Britons in a range of imperial contexts. This new set of principles developed through the slow empirical accretion of novel solutions for increasingly diverse situations.

Aaron Willis teaches in the department of history at Santa Clara University. His current project examines the important place of Quebec within the broader context of the British Empire and eighteenth-century political thought. You can find him on Twitter at @a_lukefahr.


[1] On the link between social hierarchies and British concerns over governance in India see, Nicholas B. Dirks, Castes of Mind (Princeton: Princeton University Press, 2001).

[2] F.H. Hinsely is talking here of medieval European states, but the notion that the protection of rights that pre-date the new ruling authority undermines the possibility of claims of sovereignty holds true in Quebec and throughout much of the British empire. Hinsley, Sovereignty (New York: Cambridge University Press, 1986), 62.

[3] Adam Shortt and Arthur Doughty, Documents Relating to the Constitutional History of Canada, 1759-1791, vol. 1 (Ottawa: Canadian Archives, 1918), 288. Letter dated 24 December 1767.

[4] Shortt and Doughty, 289.

[5] Shortt and Doughty, 290.

[6] As quoted in Hilda Neatby, Quebec: The Revolutionary Age (Toronto: McClelland & Stewart, 1966).

[7] Robert Travers, Ideology and Empire in Eighteenth-Century India (New York: Cambridge University Press, 2007), 126-132.

[8] Shortt and Doughty, 246.

[9] This point was made by Lord Lyttleton in the Lords’ debate over the Quebec Act. See the R.C. Simmons and P.D.G. Thomas, eds., Proceedings and Debates of the British Parliaments Respecting North America, 1754-1783, vol. 5 (Millwood, NY: Kraus International Publications, 1982), 231.

[10] See Ranajit Guha, A Rule of Property for Bengal (Durham: Duke University Press, 1996) and Travers, Ideology and Empire in Eighteenth-Century India, 207-249.

Featured Image: A.E.B. Courchêne, Carte des seigneurie du Bas-Canada, 1923. Wikimedia Commons, public domain.

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Latest Comments

  1. Robert Englebert says:

    Interesting post, but this was not simply a top down imperial process. French-speaking inhabitants throughout North America were busy petitioning governing officials for the maintenance of law and property between 1763 and the early nineteenth century. The legal pluralism that emerged from Quebec City to New Orleans under Spanish, British, and American rule was indicative of colonial resistance and agency, not just imperial accommodation. I understand that your interest is primarily the consequences for British imperialism, but surely such Canadien maneuverings helped to shape the positions of Carleton and others, and consequently, broader imperial thinking. Surprised that Phil Lawson’s Imperial Challenge wasn’t mentioned.

    • Aaron Willis says:

      You are undoubtedly correct that this was not just a top down process. One of Carelton’s strongest arguments for his position was the fact that it was what the French-speaking inhabitants wanted. The underlying rationale for the continuation of French civil law and protections for the Catholic Church was to ensure that the concerns expressed by conquered populations were addressed. Carleton and others understood that British legitimacy depended on recognizing the customs and preferences of local populations. It was not expressed here, and probably should have been, but the actions of the Canadiens were fundamental to reshaping British imperial strategies. The same would happen elsewhere. The broad strategies of accommodation and collaboration are similar, but what that process looks like and the final outcome of the negotiations was largely dependent on the demands and expectations of varied populations. There was no single model imposed from above, but rather a range of general strategies that had to be fine tuned to local circumstances.

      You are right that Philip Lawson’s work should be mentioned. He is a crucial precursor to my own work in the larger project.

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