CHANGES IN THE PENAL LAW IN QUEBEC ACROSS AND AFTER THE CONQUEST
Donald Fyson, Histoire, Université Laval (donald.fyson@hst.ulaval.ca )
A paper for the annual meeting of the American Society for Legal History, Toronto, October 1999
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Introduction

Comparative legal history is fundamental to the understanding of the historical relationship between law and society. Of particular interest is the way in which societies react to profound changes in their legal culture, either through internal transformation or external imposition. The British colony of Quebec, as has often been observed, is a marvellous laboratory for observing the latter, since following the British Conquest of New France in 1760, its relatively homogeneous French population came into rapid contact with English legal culture. Indeed, it is a commonplace to present the Conquest as marking a fundamental transformation in the public law of the colony, in particular with the reception of English criminal law; this in contrast with a much greater continuity in the private law (which, after a decade of uncertainty, remained essentially pre-Conquest French in inspiration). The radical shift in the criminal law was all the more significant since, following reception, there was little additional modification of English criminal law until the 1840s; as in England, criminal law in Quebec remained ossified and ill-adapted to the fundamental transformations of Western society. The impact of this shift in legal culture on the francophone population of the colony was profound. A substantial part of their native legal culture, especially that which defined their relationship to the State, was replaced by an alien law which, even in its native land, had become outmoded and inadequate, and which remained unreformed for some eighty years. The incomprehension and even hostility of francophones towards this new legal culture, and towards the English colonial state more generally, was thus assured, resulting for example in a francophone boycott of the criminal justice system. (1)

This analysis, though, does not fit with the empirical evidence. In a study of the lower reaches of the criminal justice system in the period from the Conquest to the 1820s, I found substantial numbers of francophones both as defendants and as plaintiffs; further, the personnel at this level had a strong francophone presence, both elite (in the form of magistrates) and less so (in the form of court officials, police, and the like). (2) This francophone participation on both sides of the bar seems to belie the notion of culturally-based incomprehension and hostility. (3)

But how, then, to explain this? One possibility is that francophones were highly adaptable, and thus able quite rapidly to assimilate and then use the English criminal law; another is that in any case, criminal law, and legal culture in general, were alien to most members of Western society, so that it mattered little whether it was French or English criminal law that they confronted. There is substantial truth to both of these assertions, most especially their underlying instrumentalist assumptions about the relationship between society and criminal justice. But I believe that the relatively rapid adaptation of the francophone population of Quebec to the new criminal law also had much to do with the nature of the law itself, both substantive and procedural. Specifically, I will argue that we need to nuance significantly both the notion of a radical transformation of the criminal law following the Conquest, and the idea of a relatively fixed, unchanging English criminal law through to the reforms of the 1840s.


Penal law across the Conquest

There is little doubt that in theoretical and ideological terms, the British Conquest of New France represented a dramatic shift in the colony's legal culture. As André Morel and Douglas Hay pointed out long ago, the advent of English criminal law brought along with it a host of novelties, such as private prosecution, public trials, and the jury system, and also led to the disappearance of fundamental elements of the French criminal law, such as inquisitorial procedure, the right of appeal, judicial torture, and extreme punishments such as breaking on the wheel. Even more fundamental is the question of the changes in the meanings attached to these concrete institutions, which Hay explored in a seminal article some fifteen years ago; undoubtedly, the English criminal justice system did not have the same deep-rooted constitutional resonances for the newly conquered francophones as it did in England. (4)

But we can also take another approach, by looking at the penal law not in the abstract, but as it was actually applied and thus directly experienced by the francophone population, both before and after the Conquest. This implies a comparison not of different systems of positive law as expressed in the ordonnances, statute books and legal treatises, nor of the ideological meanings attached to the criminal law, but rather of that subset of book law and legal procedure that are revealed through a close analysis of the actual workings of the criminal justice system. From this perspective, a comparison between New France in the decades leading up to the Conquest and Quebec in the decades following it suggests that changes in the criminal law, though certain, were perhaps less dramatic than such a shift in legal cultures might lead us to expect. It is impossible for me to cover the entirety of the substance and procedure of criminal law, but I will touch briefly on the normativity that each system enforced, the procedures used to enforce that normativity and the punishments in which criminalized behaviour resulted. (5)

Let us start first with the normativity that underlay each system, as expressed by the actions or inactions which each penalized. In the abstract, the two systems of positive law expressed normativities that had some substantial differences, notably with the much wider range of offences penalized by England's "Bloody Code". But for the population of the colony, it mattered little if the English criminal law prohibited going about in the forest with one's face blacked, if this particular norm was never enforced. Indeed, in the concrete terms of offences that the criminal justice system actually dealt with before and after the Conquest, the pattern was very similar: a small number of serious crimes such as murder, violent assault, rape, infanticide, theft and forgery, constituting perhaps a tenth of all offences, with a particular emphasis on murder, violent assault and theft; a much greater number of minor misdemeanours, mostly assaults, with few morality offences, constituting a little under a third of all offences; and an even larger number of regulatory offences, such as infractions of liquor licensing provisions, breaches of the road maintenance regulations, and the like, constituting well over half of all offences. (6) The bulk of these offences were defined similarly under both the French and the English systems: for serious crimes (for example, under both systems homicides were divided into the equivalent of murder, voluntary manslaughter and involuntary manslaughter, with widely varying penalties consequent on each); for misdemeanours (thus, assaults were similarly defined under both systems); and even for regulatory offences (since, as we will see, legislators of all stripes under the English regime continued much of pre-Conquest regulatory practice). The only significant differences in terms of offences that were actually frequently dealt with concerned insults, more criminalized under the French régime than under the English, (7) and a new range of offences that accompanied the imposition of British civic responsibilities, such as refusing to serve as a constable or juror. (8) But in general, the change in penal law brought no substantial change in the normativity that it enforced. This is unsurprising, given the broader social constructions that underlay both systems: judaeo-christian traditions that penalized significant violence as well as immorality; a fundamentally patriarchal system which in theory protected women but in practice dealt severely with female deviance; (9) and a class-based system which ranked property crimes among more serious offences and which used regulatory measures to attempt to impose order on what was perceived to be an unruly population. But it also explains why francophones, both elite and popular class, had little trouble adapting to the new rules: quite simply, they were on the whole not new.

If we turn to procedure, we enter the area that most commentators have identified as the most significantly different between the two systems. And yet, without denying that significant formal differences did exist, what is also striking is the extent of the similarities. This was particularly evident in the early stages of a criminal procedure, in other words at the stage where most people first encountered the criminal law.

Let us start with the question of prosecutorial initiative. This is often cited as a fundamental distinction between the French system, where prosecutions were closely directed by the State, and the English, founded essentially on private prosecution. For more serious crimes, the driving force behind prosecutions in New France was certainly the procureur du roi (the King's attorney); but as Jean-Marie Fecteau found, unlike in England, this was also the case in post-Conquest Quebec, where virtually all prosecutions in the King's Bench were managed by the Attorney General and paid for by the Crown. (10) If we turn to lesser offences, especially the cases of interpersonal conflict which dominated, under both systems private initiative played a much larger role. Certainly, in New France the procureur du roi decided which of these cases were worthy of pursuit and which should be directed towards civil resolution, but even in cases directed towards the criminal side, it was still up to the parties to maintain the initiative; indeed, between 1700 and 1760, between 40% and 70% of criminal cases for assault were abandoned. (11) This was also the case under the English system that prevailed after the Conquest. Assault cases were largely left to the initiative of the parties, so that even if such prosecutions were technically public, (12) no attempt was made to force parties to pursue; as a result, a similarly large proportion of assault complaints never arrived at a formal judicial resolution. (13) Finally, prosecution of regulatory offences in New France was mainly the purvey of lesser State officials, with offenders detected by huissiers (bailiffs) or militia captains and prosecuted before the lieutenant général criminel et civil (the main royal judge); under the English system, it was theoretically possible for anyone to engage such a prosecution (and recover half of the fine) but in practice, it largely fell to minor State officials, such as bailiffs, constables, market clerks or chimney inspectors, to launch the prosecution, and for the Clerk of the Peace to conduct it in court. (14) The underlying assumptions about who should be responsible for prosecuting what crimes were the same in both systems. The most serious offences were firmly taken in hand by government officials and prosecuted at the expense of the State; the initial plaintiff became simply an accessory in a process controlled by the principal law officers of the Crown. For less serious interpersonal crimes, on the other hand, technically criminal proceedings took on an almost civil aspect, with the Crown explicitly or implicitly encouraging civil or even out-of-court resolution of disputes. Finally, regulatory offences were also treated as State matters, although in these instances, prosecution fell to the lesser officers who, on the ground, represented the State.

The routes taken by plaintiffs and defendants through the criminal justice system (the hoops, as it were, that they had to jump through) also showed considerable resemblances, especially at the initial stages; and this despite the often-cited opposition of the inquisitorial and adversarial systems. First, both before and after the Conquest, regulatory offences were dealt with summarily by judgement before a judge or magistrate, a process which seems to have been very similar under both systems. For other offences, the process started in both systems with a complaint, generally by a private individual, which followed the same basic form (a general description of what had happened and its results). (15) In more serious cases, the next step was also very similar: the informations of the French system, or preliminary examination of witnesses prior to the judge's decision to have the suspect arrested, was closely analogous to the preliminary inquisitions held by justices of the peace, with statements from the principal witnesses and, when necessary, a medical report (though in the case of murders, under the English system this came in the form of a coroner's report); in both systems, all the relevant papers were then forwarded to the state prosecutor for examination and action. Under the English system, however, there was no preliminary examination of witnesses for less serious cases, such as assaults; though this seems also to have been the case under the French régime for the many assault cases that never made it past the stage of an initial complaint. Another significant difference lay in the moment of arrest of the suspect, which came somewhat earlier under the English system and at the discretion of the justice rather than at the direction of the crown prosecutor; still, under both systems, suspects in less serious cases, notably assault cases, were almost never imprisoned while waiting for trial (the standard practice in post-Conquest Quebec was for the justice of the peace immediately to issue a recognizance to appear at the next court), while suspects in more serious cases (felony cases under the English system and those subject to the procédure extraordinaire under the French) might spend months in jail. Another difference lay in the preliminary questioning of suspects by judges or magistrates following their arrest; while this was undertaken under both systems for more serious cases (the interrogatoire under the French system, the voluntary examination under the English), the English system did not use it for less serious offences, and the English voluntary examination (as the name implies) seems to have been far less rigorous than the French interrogatoire. Overall, though, despite these differences, the initial stages of criminal proceedings had many resemblances: the hoops may have been arranged a little differently, or been of slightly different sizes and colours, but the same familiar pattern held. Even more importantly, this familiarity extended even to language, which has often been identified as another fundamentally dislocating feature of the post-Conquest criminal justice system: despite the much-vaunted English formalism as regards language, documents produced at the initial stages of the proceedings, such as depositions, warrants, summonses and recognizances, were frequently in French.

The importance of the similarity of the two procedures in their initial stages is further underscored when we consider what has often been identified as the most notable judicial innovation resulting from the British Conquest: the jury system. Though most certainly a fundamental change in terms of the constitutional meanings attached to the institution, its concrete impact must be considered in light of the filtering effect that meant that only a minority of cases in post-Conquest Quebec actually made it to a jury. The records are too sketchy to permit anything more than a few general observations. First, the majority of offences were dealt with summarily, including almost all regulatory offences and most offences relating to duties towards the State; this becomes even more important when we consider that it was at the level of regulatory offences that francophones were most strongly represented. (16) Of complaints that could have led to an indictment, many of the less serious, notably assaults, never progressed beyond the level of complaints, being resolved one way or another before an indictment was laid; this was the case with at least half of assault complaints made between 1785 and 1799. Again, this was particularly significant for the francophone population, since here too they were heavily represented as both plaintiffs and defendants. (17) In the Quarter Sessions of the Peace, even for offences for which an indictment was laid before a Grand Jury, only about half ever made it to a full jury trial, due to the combined effects of Grand Jury decisions, out-of-court settlements which were readily accepted by the bench and simple non-appearance by the parties. It was only in the King's Bench, which in the eighteenth century dealt with perhaps 15% of cases in all, that a jury trial was the most likely outcome of an indictment; and this was the court where francophones were the least represented as both plaintiffs and defendants. (18) The impact of the jury system was immense at a symbolic level; practically, it had much less effect on the law as it was actually experienced by the francophone population.

Finally, if we turn to the punishments that the criminal law imposed, the parallels are also striking. Certainly, the range of punishments open to judges in New France was far greater than under the English system, but in practice there were very significant continuities. Virtually all regulatory offences, both in New France and in post-Conquest Quebec, were punished by fines. Assaults, which constituted the bulk of misdemeanours, also generally led to monetary penalties, though under the French régime, more often in the form of direct restitution of damages rather than the fines more common under the English system; in both cases, though, the most significant expense for the loser was often the court costs. (19) At the other end of the scale, as Douglas Hay has pointed out, despite other options, hanging was by far and away the most common form of execution under both systems, and at any rate executions seem to have been rare under both. (20) The similarities between the two systems extend even to public ignominy, so crucial to the French system in the case of more serious crimes: for example, in the first decade of English rule, there were several public whippings following a processional route through the town of Montreal, in exactly the same fashion as was done under the French régime. (21) On the other hand, such English innovations as benefit of the clergy were used quite rarely in the colony. (22) Even the right of appeal in more serious criminal cases in New France, which disappeared under the English system, led only rarely to the reversal of a lower court conviction, though fairly frequently to a diminution of the sentence, (23) which renders it somewhat analogous to the frequent use of the royal pardon in post-Conquest Quebec. (24)

I don't want to overstate the degree of continuity between the two systems to the extent of downplaying any differences, for important differences there were, which were particularly evident in terms of procedure and which increased the further one advanced into a criminal proceedings. For example, apart from those differences already mentioned, for the minority of cases under the English system that did go to a full jury trial, the fact that the defendant had the right to call witnesses, rather than simply question the prosecution witnesses (as under the French system), substantially changed the nature of proceedings (although in both systems, in more serious cases defendants did not have access to counsel and had to conduct their own defence). Likewise, rates of acquittal at trial for more serious offences were much higher under the English regime than the French, and government prosecutions did not always succeed (although in post-Conquest Quebec, conviction rates for regulatory offences were more in line with the high rates experienced under the French system). But what I am trying to suggest is that the continuities were considerable, especially at the lower levels of the criminal justice system and in the initial stages of criminal proceedings, and that francophones would thus have had much less difficulty understanding this new system, especially since this is where their presence was greatest. This is a far cry from, for example, the civil law, where the differences between the French and English systems, both in terms of the normativity enforced and the procedures followed, were far more significant and led to bitter battles between francophones and anglophones over issues such as testamentary freedom and secret mortgages. (25) And it goes a long way to explaining why it is so difficult to find systematic francophone hostility to the criminal justice system in post-Conquest Quebec on the grounds that it was an alien system. Francophone elite opposition is limited to the comments of one or two nobles who found themselves temporarily excluded from power following the Conquest, while many more accepted the system by serving on juries and by becoming active justices of the peace as soon as this position was opened to them (including the son of the most famous critic, Chartier de Lotbinière); indeed, we can find as many instances of disrespect for the criminal law from English elites than from French. (26) As for popular opposition, it certainly existed, for example in the regular instances of resistance towards bailiffs and constables in the execution of their duties or the assistance afforded to prisoners to escape from the jails; but this directly parallelled similar opposition under the French régime, and in both cases derived from the broader power inequalities embedded in both systems. (27)


Penal law transformed through the 1830s

I want to turn briefly now to the question of the rigidity of the English criminal law in the decades between the Conquest and the reforms of the early 1840s. As already noted, this constitutes the second fundamental assertion regarding the imposition of English criminal law on the colony: not only was it an alien legal culture, it remained essentially unreformed for some eighty years, testimony to a significant blockage in the colony's system of social regulation that was only resolved following the Rebellions. (28) This assertion can indeed be sustained if one adopts a narrow definition of the "criminal law": book law only and, more specifically, book law concerning the most serious offences (the definition of "criminal" adopted by some modern positive law systems, notably the French). With this narrower definition, which is nonetheless that often adopted by historians of the law, (29) changes were indeed numerically few, though significant nonetheless: notably, the 1789 re-definition of petty larceny to theft of goods worth under 20 shillings (rather than one shilling); the 1801 replacement of burning by hanging for wives convicted of petty treason; a series of measures in 1812 regarding infanticide; and the 1824 abolition of the death penalty for a number of common types of larceny. (30)

There are however two problems with this definitional stance. First, it puts aside the broader sociological definition of crime as any action or inaction addressed by the penal law, essential to any understanding of law and society. (31) Indeed, regulatory offences, which do not fall under the narrower definition of the criminal, are often as or more important in defining the relationship between individuals and the State (one of the key ends of the criminal law) than are more "serious" offences and were often flashpoints in popular resistance to the colonial state: thus, in the 1790s, new road maintenance legislation led to riots in the colony, while in the early 1840s, an ordinance concerning sleighs generated significant popular resistance. (32) Second, the narrower definition does not take into account the fact that even for contemporaries, the term "criminal law" often had a broader significance. Certainly, one can find examples of the more limited definition, as in the King's Bench Grand Jury which, in 1826, declared that since 1763, "our criminal legislation in fact has remained nearly stationary." (33) But there are also many contrary examples. Take the only significant Quebec compilation of penal law, Joseph-François Perrault's Questions et réponses sur le droit criminel du Bas-Canada, dediées aux étudiants en droit, published in 1814. (34) Despite its title, his digest covered the entire range of penal law, down to and including regulatory infractions. Likewise, in justifying his crackdown on drunkenness, the Chairman of the Quarter Sessions at Quebec City, Jean-Thomas Taschereau, declared in 1827 that "whenever a charge of drunkenness is laid against a person, it becomes the duty of the magistrate (in as much as drunkenness is by law a crime) to inquire into and determine upon the accusation in due course of law". (35)

If we adopt this broader definition of what constituted the criminal law, though using the term penal law to avoid any confusion, we find some quite substantial transformations, both in the substantive penal law and in penal procedure. Indeed, rather than being constrained by the rigidity of the English criminal law, colonial judicial and legislative elites had a considerable margin of manoeuvre that allowed them to adapt the penal law to their needs.

First, on the substantive side, it is crucial to remember that the reception of English criminal law following the Conquest had a very important proviso: it did not apply to offences defined by statutes that concerned purely "local" situations in England rather than those "manifestly intended to be of general effect throughout the realm." (36) Already, this was taken in the colony to exclude such important English statutes as the game laws and the poor laws, crucial to defining a large part of the penal law in England and, as numerous studies have shown, to the structuring of social relations through the criminal law. (37) As a result, a whole range of activities that the state prohibited in England, such as moving from one parish to another, were not offences in Quebec.

But the absence of these more "local" measures left a gap in the colony's penal law, and to fill this gap, local legislative bodies enacted a series of legislative measures that created what was in essence an autonomous colonial penal code. Thus, if we examine the ordinances and acts passed by the successive legislatures of the colony from the 1760s to the 1830s (the appointed Council which ruled Quebec between 1764 and 1791 and then the partially elected legislature in place from 1792 onwards), we find several hundred different acts and ordinances that attached penal provisions to actions ranging from the desertion of voyageurs to the upper country, through shipowners allowing people to leave the colony without a pass, to children begging in the countryside. In many cases these acts and ordinances responded to the specific needs of the different fractions of the colonial elites that controlled these legislative bodies, rather than simple repetitions of British provisions. (38) For example, legislation attaching penal provisions to such matters as universal militia service, trade with natives and the configuration of winter roads had no real counterparts in England, which had no universal militia service, no natives to trade with and not enough snow to create winter roads. For the colony's elites, however, the importance of a well-regulated militia, of maintaining trade monopolies with the natives and of ensuring adequate winter communications were evident. Nor can we simply dismiss these as mere administrative measures with little bite: between 1764 and 1830, some fifty of these acts and ordinances allowed magistrates to imprison violators summarily, and the 65 francophone militiamen crammed into the Montreal gaol in the late 1770s for refusing to obey the militia ordinances can testify to their potentially severe effects. (39)

But penal legislation in the colony came from more than just the legislature. Following the traditions established especially in the American colonies, the colony's justices of the peace had, from the very beginning, the right to make rules and regulations of police for their respective cities, a right which they exercised with great frequency: in Montreal for example, between 1764 and 1832 (when the justices were replaced by an elected municipal council) they made such regulations on about eighty different occasions, including eleven full sets of regulations that were essentially codes of municipal by-laws. (40) Far from being unimportant, these municipal regulations allowed the justices, drawn from the towns' local elites (both francophone and anglophone), to regulate such important matters as master/servant relations, begging, building practices, road repairs and, more generally, public conduct in the towns. These regulations went beyond simple common-sense rules and changed to reflect the changing values of the colony's local elites. For example, from about the beginning of the nineteenth century, the regulations drawn up by Montreal's justices took on an increasingly moral tone, with more and more attention paid to regulating spontaneous actions on the part of the populace as a whole which did not fit with the elites' conception of a well-ordered society: in 1799 "idle boys" were prohibited from playing on Sundays in the Place d'Armes, with constables assigned to ensure that they did not; in 1803, balls, assemblies, and dances were banned on Sundays and holidays; from 1806 it became illegal to bathe nude in the Saint Lawrence; from 1817 charivaris were outlawed, along with skating or sliding with a sledge in the city or playing at marbles or cards in the marketplace; from 1821 the prohibitions were extended to throwing snowballs and playing with hoops. the beginning of the nineteenth century was also a turning point in other ways: 1802 marked the year that the justices first issued detailed regulations concerning the licensing of beggars and master/servant relations, reflecting the increasing need of the city's elites to adapt the broader English penal law on these matters to their particular local needs.

What is even more striking about these penal measures, both those enacted by the legislature and the justices, is the extent to which, in the eighteenth century at least, they also represented a substantial continuation of the pre-Conquest penal code. When the legislature attached penal provisions to acts regulating the militia, or the repair of roads, it was essentially repeating similar provisions that had existed under the French régime. (41) Even more strikingly, the municipal regulations drawn up by the justices of the peace were strikingly similar to the equivalent regulations drawn up under the French régime. (42)

On the procedural side, unreformed English penal law was also changed by legal practice in the colony. We have already seen some examples of this, notably the marginalization of private prosecution for more serious offences and the ready use of French in all but the most formalized legal documents; to these we could add as well the right of Catholics to sit on juries and, from 1775, to occupy the position of magistrates. But there were also other substantial modifications of English criminal procedure that belie the notion of a slavish attachment to English penal law as it stood at reception.

Some of these modifications seemed almost to introduce French law as it were by the backdoor of procedure. The best example of this is without doubt bastardy laws, which were applied in the colony up until the mid-1790s. In England, bastardy laws, an integral part of the Poor Laws, were intended to avoid bastard children becoming a burden on the parish rate-payers, and were often accompanied by the punishment of the mother of a bastard child by a term in the local House of Correction. In post-Conquest Quebec, however, there were neither parish rate-payers nor Houses of Correction; bastardy prosecutions were instead used by young women (or their parents) to pursue the fathers of their children in order to secure support payments, in a direct continuation of the practice under the French régime. (43)

There was a similar gap between theory and practice on the issue of reception itself. Though strictly speaking reception of English criminal law occurred in 1763 or 1775, colonial jurists seem to have taken a more pragmatic attitude than many modern scholars. (44) Perrault's compilation, for example, makes frequent reference to English statute law that post-dates the latest possible date of reception (1775), including such provisions as the possibility for judges to replace the burning in the hand required for benefit of the clergy by other punishments. (45) Likewise, we find Quebec and Lower Canadian magistrates using as their guide various editions of Richard Burn's Justice of the Peace and Parish Officer, the principle English magistrate's manual, but not necessarily the edition published just before reception, but rather whatever was available, right up to and including early nineteenth-century editions. We also find citations of such works as Chitty's Practical Treatise on the Criminal Law, first published in the early nineteenth century. The effects of this continued bleeding across of English legal culture remains to be studied in detail, but it does suggest the possibility of changes that had nothing to do with formal modifications in the positive law.

Finally, if we turn to the other end of the process, sentencing, we can see also some substantial modifications. Notably, there was an increasingly frequent imposition of jail sentences in the case of crimes: thus, from 1819 to 1829, of sentences passed in the Montreal Court of King's Bench, more than two-thirds involved some form of imprisonment, while more traditional punishments such as the pillory declined rapidly; (46) on the other end of the scale, Jean-Marie Fecteau notes the rapid increase in the numbers of vagrants and itinerants imprisoned summarily by justices of the peace from the 1830s onwards; (47) and all of this with few real changes in the substantive law. The inference is clear: as Peter Oliver found for Upper Canada, pre-reform judges were already profoundly changing the penalties attached to the criminal law. (48)

Overall, it is thus very difficult to argue that the penal law Quebec and Lower Canada remained essentially unchanged through to the 1840s. Instead, it was substantially modified to fit both local circumstances and to follow broader trends in Western society. Again, the reasons are not hard to fathom. Local elites needed the penal law as one of the instruments by which they maintained their power in society; further, they needed a penal law adapted to their particular needs. The English criminal justice system, as implemented in the colony, gave them the space necessary to put this penal law into place, through the legislative powers that it accorded them and through the modifications possible in practice. The penal code that resulted was the result of an on-going negotiation between the fundamental premises of English penal law and local circumstances, including the pre-existing colonial legal culture; and it also reflected substantial changes in social relations, especially in the first decades of the nineteenth century.


Conclusion

The specific conclusions of this analysis of the penal law in Quebec across and after the Conquest are evident: that the changes in the penal law wrought by the change from French to English law were perhaps less dramatic than has been assumed, and that despite its apparent immobility in the eight decades following the Conquest, the colony's penal law in fact underwent quite considerable adaptations, largely at the behest of the colonial elites who controlled the various legislative bodies and the judiciary. But beyond that, I believe that this admittedly rapid overview suggests some more fundamental points about the way that historians approach legal history, and comparative legal history in particular. The first is the importance, when dealing with criminality and criminal justice history, not to be seduced by the temptation to limit artificially our definition of crime and criminal law according to the definitions proposed by one or another system of positive law or legal doctrine. From a social perspective, criminal law is fundamentally about deviance from norms and its sanctioning by State law, not about arbitrary notional lines, whose adoption may hinder a better grasp of the way in which different criminal law systems handled deviance. Another point is the importance of going beyond book law to look at the law in action. This has long become a commonplace among many legal historians, (49) but there are still many historians who are not specialized in the law, and many lawyers not specialized in history, who tend adopt an overly positivist conception of what the law is. More importantly, it is essential to any comparative legal history approach, especially one that seeks to compare formally incomparable systems. Indeed, it is only by eschewing a formalist approach, and looking at the criminal law in action, as it impinged on those who came in contact with it, that we can actually compare the apples of an inquisitorial system with the oranges of an adversarial one; otherwise, any change from one formal legal culture to another will inevitably appear to effectuate a fundamental transformation in the law, thus masking any substantial concrete continuities based on broad cultural similarities. Again, this is not a new assertion, and was suggested some twenty years ago by Alfred Soman in his attempt to compare English and Continental law; but it bears repeating. (50)

Notes

1. Proponents of the notion of a radical change in the criminal law effectuated by the Conquest include André Morel, "La réception du droit criminel anglais au Québec (1760-1892)", Revue Juridique Thémis 13(2-3)(1976): 449-541 and Louis A. Knafla and Terry L. Chapman, "Criminal Justice in Canada: A Comparative Study of the Maritimes and Lower Canada, 1760-1812", Osgoode Hall Law Journal 21(2)(1983): 245-274; more nuanced versions are found in Douglas Hay, "The Meanings of the Criminal Law in Quebec, 1764-1774", in Louis A. Knafla ed., Crime and Criminal Justice in Europe and Canada 2nd ed. (Waterloo: Wilfrid Laurier UP, 1985): 77-110 and Jean-Marie Fecteau, Un nouvel ordre des choses: la pauvreté, le crime, l'Etat au Québec, de la fin du XVIIIe siècle à 1840 (Montréal: VLB, 1989). This same general view is presented in the most recent synthesis of Canadian criminal justice history, Jim Phillips,"Crime and Punishment in the Dominion of the North: Canada from New France to the Present", in Clive Emsley and Louis A. Knafla (eds.), Crime History and Histories of Crime: Studies in the Historiography of Crime and Criminal Justice in Modern History (Westport: Greenwood Press, 1996): 164-167. The position fits more broadly into the debate over the effects of the Conquest on the francophone population, a fundamental theme in Quebec historiography.

2. Donald Fyson, "Criminal Justice, Civil Society, and the Local State: The Justices of the Peace in the District of Montreal, 1764-1830" (Ph.D., Université de Montréal, 1995).

3. This is in notable contrast to another of the main instances of the imposition of English criminal law on a continental European population in North America, the Dutch in New York, who seem largely to have retreated into private arbitration (Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691-1776 (Ithaca: Cornell UP, 1976).

4. Morel, "La réception du droit criminel anglais au Québec"; Hay, "The Meanings of the Criminal Law in Quebec".

5. What follows is based, for New France between 1700 and 1759, on André Lachance, La justice criminelle du roi au Canada au XVIIIe siècle. Tribunaux et officiers (Québec, PUL, 1978), Crime et criminels en Nouvelle-France (Montréal: Boréal Express, 1984) and "Les criminels, 1712-1759", in André Lachance (ed.) Les marginaux, les exclus et l'autre au Canada aux 17e et 18e siècles (Saint-Laurent: Fides, 1996): 151-165; Jean-François Leclerc, "Justice et infra-justice en Nouvelle-France: les voies de fait à Montréal entre 1700 et 1760", Criminologie 18(1)(1985): 25-39; Jean-Philippe Garneau, "Justice et règlement des conflits dans le gouvernement de Montréal à la fin du Régime français" (M.A., UQAM, 1995); and John A. Dickinson, "Réflexions sur la police en Nouvelle-France", McGill Law Journal 32(3)(1987): 496-522. For the English régime between 1764 and 1799, it is based on Fecteau, Un nouvel ordre des choses and Fyson, "Criminal Justice, Civil Society and the Local State" as well as on the data that I have collected on the lower courts in the district of Montreal and that collected by Jean-Marie Fecteau on the King's Bench, which he has kindly shared with me.

6. From my estimates (Fyson, "Criminal Justice, Civil Society and the Local State": 319), regulatory offences in post-Conquest Quebec, dealt with summarily mainly in the court of Weekly Sessions of the Peace, constituted a little over 60% of all cases; combining the figures from Lachance, Crime et Criminels and Dickinson, "Réflexions sur la police", we can estimate a similar proportion of 60%-70% for New France (Fyson: 326 note 749). Excluding regulatory offences, a rough-and-ready comparison of cases before the royal courts in New France between 1712 and 1759, and those in the two main criminal courts (King's Bench and Quarter Sessions) between 1764 and 1799 in the district of Montreal (the only district for which we have sufficient surviving records), yields the following proportions for the four main types of offences used by Lachance:

Type of offence 1712-1759 1764-1799
Against the person 54% 53%
Against property 24% 27%
Against morality 6% 5%
Against the State 16% 15%

The resemblance is striking; though it must be noted that under the French régime, for the district of Montreal alone, there was a slightly higher proportion of crimes against the person (59%).

7.

8. In New France, insults comprised some 8% of cases brought before the criminal courts (Lachance, Crime et criminels: 25); in the years following the Conquest, I have found no cases of slander, and only a handful of libel cases. Civic duty-related offences constituted perhaps 8% of defendants judged before the Montreal Quarter Sessions between 1764 and 1799; Lachance's figures, on the other hand, seem to exclude the summary fines imposed on parties for not appearing, for not pursuing to appeal, and the like, so the difference may be less important than it seems.

9. For example, Marie-Aimée Cliche shows that the Conquest brought little change in the treatment of infanticides ("L'infanticide dans la region de Quebec (1660-1969)» Revue d'histoire de l'Amérique française 44(1)(1990): 44-46). Likewise, both before and after the Conquest, rape, despite being theoretically a very serious crime, was very rarely before the courts: numerically, Lachance (Crime et criminels: 59-60) found only two cases in the period from 1700 to 1760, whereas there were a dozen cases of rape and attempted rape brought before the King's Bench in the period 1764-1799, but both before and after the Conquest, such cases were rare and almost never led to convictions.

10. Fecteau, Un nouvel ordre des choses: 81, 110-111.

11. Leclerc, "Justice et infra-justice en Nouvelle-France": 37 note 38; on the number of potentially "criminal" complaints that never made it beyond the initial complaint, being then transformed into civil cases, see also Garneau, "Justice et règlement des conflits": 37.

12. This is evident from their frequently being described as such, as in the "Schedule of public prosecutions ... in the years 1787 and 1788" prepared by the Montreal Clerk of the Peace (NA RG4 A1: 13865-68) which consists largely of assaults.

13. Thus, for example, no attempt was made to enforce recognizances to appear when both parties settled; even further, the clerk of the peace often inscribed the indication "Settled" in the official register of the Quarter Sessions itself, hardly an acceptable formal outcome in a criminal court. The absence of reliable documentation for the eighteenth century makes difficult any determination of the exact proportion of complaints so dropped, but certainly by early nineteenth century, about two thirds of assault complaints never made it to a jury. Even in the case of assault indictments laid before the King's Bench in the years immediately following the Conquest, there are several examples of cases being dropped after arrangement between the parties.

14. Dickinson, "Réflexions sur la police en Nouvelle-France"; Fyson, "Criminal Justice, Civil Society and the Local State": 198-203, 303.

15. Technically, under the French system the complaint was drawn up by a huissier, while under the English system, it was made before a justice of the peace; nevertheless, the fluidity of these distinctions is made evident by the fact that under the English régime there are several examples of plaintiffs going first to a local bailiff, who then accompanied them to the local justice to have the complaint drawn up.

16. In the eighteenth century, francophones accounted for upwards of 85% of defendants in cases brought before the Weekly Sessions of the Peace, the main venue for the trial of regulatory offences.

17. Francophones represented over 60% of prosecutors and defendants in complaints destined for trial in the Quarter Sessions in the period from 1785 to 1799.

18. Fyson, "Criminal Justice, Civil Society and the Local State": 317-336; Fecteau, Un nouvel ordre des choses: 130, 133.

19. Garneau, "Justice et règlement des conflits": 37-38; Fyson, "Criminal Justice, Civil Society and the Local State": 336-341.

20. Hay, "The Meanings of the Criminal Law in Quebec": 91. There is as yet no systematic study of executions in the period from 1775 onwards, but my impression is that there was no large upsurge in executions, and this would accord with the situation in Upper Canada, where Peter Oliver had found that executions were relatively rare ("Terror to Evil-Doers": Prisons and Punishments in Nineteenth-Century Ontario (Toronto: UTP/Osgoode, 1998): 29-35).

21. Lachance, La justice criminelle du Roi: 115-116.

22. For example, among 135 King's Bench cases between 1764 and 1799, collected by Jean-Marie Fecteau, where the verdict is know (in a sample of 600 cases altogether), there are only fifteen instances of benefit of the clergy being granted, of which eight also had an additional prison term imposed. This is a far cry from the frequency of its use in the American colonies a few decades previously, where between a third and a half of all felony convictions led to benefit of the clergy (Jeffrey K. Sawyer, "'Benefit of Clergy' in Maryland and Virginia", American Journal of Legal History 34(1)(1990): 59, figures for the eighteenth century).

23. Lachance, La justice criminelle du Roi: 131.

24. Again, no study has yet been undertaken of pardons in post-Conquest Quebec, but the pardon system was certainly an important feature of the colony's penal economy.

25. As detailed by Evelyn Kolish in Nationalismes et conflits de droits: le débat du droit privé au Québec, 1760-1840 (LaSalle: Hurtubise HMH, 1994).

26. Judging by the fines imposed for non-attendance as grand jurors, French elites were less reticent to serve on juries than English: in the period from 1778 to 1809, in the Montreal Quarter Sessions, francophones represented half of all grand jurors but only a third of those fined. As for the magistracy, in the period from 1776 (when they were first admitted to the magistracy) to 1793, francophones represented between 50% and 70% of active justices of the peace; their numbers dropped dramatically in the latter half of the 1790s, but rose again just as dramatically from 1800 on through 1820 (Fyson: 132). On Michel Chartier de Lotbinière, the only francophone elite to produce a detailed critique of the English criminal law, see Morel, "La réception du droit criminel anglais au Québec": 494-500; on the son, Michel-Eustache-Gaspard-Alain Chartier de Lotbinière, see Fyson, "Criminal Justice, Civil Society and the Local State": 120-121.

27. Lachance, Crimes et criminels: 66-67.

28. Fecteau, Un nouvel ordre des choses: 111; Morel, "La réception du droit criminel anglais au Québec": 473-474.

29. As, for example, by John Beattie in his seminal study, Crime and the Courts in England, 1660-1800 (Princeton: Princeton UP, 1986): 6-8.

30. For an overview, see Fecteau, Un nouvel ordre des choses: 111-112, and Morel, "La réception du droit criminel anglais au Québec": 473-75.

31. See for example André-Jean Arnaud et al., Dictionnaire encyclopédique de théorie et de sociologie du droit (Paris, Librairie générale de droit et de jursiprudence, 1993): 122-126.

32. F. Murray Greenwood, Legacies of Fear. Law and Politics in Quebec in the Era of the French Revolution (Toronto: University of Toronto Press, 1993): 87-92; Stephen Kenny, "Cahots and Catcalls: An Episode of Popular Resistance in Lower Canada at the Outset of the Union", Canadian Historical Review, 65(2)(1984): 184-208.

33. ANQM TL19 S1 SS11 (registers of the Court of King's Bench for the district of Montreal), September 1826.

34. Québec, 1814. Perrault, one of the prothonotaries of the Court of King's Bench of the district of Quebec, was also one of the colony's foremost legal scholars.

35. NA RG1 E15A volume 60 file "Quarter Sessions of the Peace 1827". Further examples of both definitions of crime can be found in Fyson, "Criminal Justice, Civil Society and the Local State": 42-46.

36. Seaman Morley Scott, "Chapters in the History of the Law of Quebec 1764-1775", Ph.D., University of Michigan, 1933: 84.

37. As in the various articles in Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Middlesex: Penguin, 1975).

38. That part of the local penal legislation relevant to the justices of the peace of Montreal between 1764 and 1830 (103 ordinances and acts altogether) is presented in Fyson, "Criminal Justice, Civil Society and the Local State": Appendix II.

39. NA RG4 A1: 7654-57.

40. A complete list is presented in Fyson, "Criminal Justice, Civil Society and the Local State": Appendix III.

41. On the penalties attached to the roads acts, for example, see Léon Robichaud, "Le pouvoir, les paysans et la voirie au Bas-Canada à la fin du XVIIIe siècle" (M.A., McGill, 1989): 21, 25, 41-42; Robichaud notes more generally how, after an initial attempt to change the French system, colonial authorities quickly reverted to it (22-24).

42. Dickinson, "Réflexions sur la police en Nouvelle-France"; Garneau, "Justice et règlement des conflits": 30.

43. On bastardy, see Donald Fyson, "Women as Complainants Before the Justices of the Peace in the District of Montreal, 1779-1830", Canadian Historical Association, St. Catharines, June 1996 (http://www.hst.ulaval.ca/profs/dfyson/WomComp.htm); on New France, Lachance, Crimes et criminels: 55-56, 61 and Marie-Aimée.Cliche, "Unwed Mothers, Families, and Society during the French Régime", in Bettina Bradbury (ed.), Canadian Family History: Selected Readings (Toronto: Copp Clark Pitman, 1992): 33-65.

44. Especially the standard accounts of Morel, "La réception du droit criminel anglais au Québec" and J.E. Côté, "The Reception of English Law", Alberta Law Review 15(1977): 29-92. An excellent examination of the complexities of reception, as it applied to Nova Scotia, is found in Jim Phillips, "'Securing Obedience to Necessary Laws': the Criminal Law in Eighteenth-Century Nova Scotia", Nova Scotia Historical Review 12(2)(1992): 92-106.

45. On benefit of the clergy, see Questions et réponses sur le droit criminel: 79, which cites the English statute 19 George III c.74; that this was actually applied in the colony is evident from three sentences handed down in May 1780 which substituted three months imprisonment.

46. Of 316 sentences pronounced altogether, 227 involved terms of imprisonment ranging from a few days to two years; in the same period, there were less than ten sentences to the pillory (NA RG4 B21, computerized by Peter Orr of the Montreal Business History Project).

47. Un nouvel ordre des choses: 249.

48. "Terror to Evil-Doers": 3-35.

49. See for example J.S. Cockburn, "Trial by the Book? Fact and Theory in the Criminal Process, 1558-1625", in J.H. Baker (ed.), Legal Records and the Historian (London: Royal Historical Society, 1978): 60-79.

50. "Deviance and Criminal Justice in Western Europe, 1300-1800: An Essay in Structure", Criminal Justice History 1(1980): 1-28.