Custom of Paris in New France

The customary law of Paris was viewed as prestigious since it was the capital, so it began to be refined between the 13th and 15th centuries as part of a project of codification of all French custumals decreed by King Charles VII in the Ordinance of Montil-les-Tours [fr] in 1453.

[3] A symptom of the time in which it was written, the Custom's 362 articles attempted to merge feudal land tenure with the nascent town-centered commercialization of the Ancien Régime.

The Custom had been a part of the justice system of Canada since the 1627 founding of the Company of One Hundred Associates, which previously managed French holdings in North America.

[6] Peasants also had to pay a fixed quitrent for land as specified in their deeds of enfeoffment, and tenants were not permitted to run down their tenancy to the point that the revenue it generated would fail to cover their annual feu-duties.

The Custom also contained the equivalent of a building code, outlining rules for property held in common, but in general, police regulations were more important for construction, fire prevention, and public hygiene in New France.

The most important such safeguard was dower (douaire), a fixed sum set aside for the wife to live on in the event of her husband's death and drawn from half of the marriage community reserved for the minor heirs.

In contrast to France, the social pressures for marriages into affluent and prestigious households was not as pronounced in the new colony, which allowed for greater leniency in gaining parental consent.

[4] The imbalance of the sexes in the new colony led to a great number of marriages between youths, which was especially pronounced in the early years of settlement: the average age for girls was 12, boys 14.

Typically, couples desiring to separate would circumvent the legal process and have a notary draw up a contract to dissolve the marriage community by dividing their movable and immovable assets.

[8] The husband's role as "head of household" and his effective control over the couple's marital property meant that he would have a significant impact on the material well-being of the family in the event of his death.

Thus, the wife largely depended on the managerial abilities and good faith of her husband in according her sufficient material holdings on which to live and support her family in her potential widowhood.

Once married, the husband could, as head of household, explicitly authorize his wife to manage (though not to dispose of) her inheritances, give her general or special power of attorney, or recognize her as a public merchant capable of transacting independently.

[8] One of the most important protective mechanisms for a widow under customary law was her right to renounce community property plagued by insurmountable debt and effectively walk away with her dower.

[6] The evidence from notarial instruments suggests that while the value of movable goods bequeathed to children leaving the family hearth was about equal for both sexes, land was endowed in a very discriminatory fashion.

Throughout the history of New France, peasant farmers increasingly disposed of their property while they were still living so transmission of land through the female line had practically disappeared by the end of the 18th century.

[6] One final interesting implication of the Custom of Paris for women in New France was that customarily, daughters who entered religious orders were excluded from any inheritance of the community property of their families.

[9] In the case of the death of one spouse in a childless couple, the Custom stipulated that the half of the marital community normally reserved for the children of the family could go to a male cousin, a brother, or even the manorial landlord.

[9] The financial well-being of a deceased person's children was safeguarded in the Custom by the legitime, a sum equal to half of what each child would have received in an equitable division of the marital community property if no gifts or bequests had previously diminished it.

[2] The strict rules set out for inheritance by the Custom of Paris commonly forced early modern families in New France (especially those of the first colonists) to act outside the law in the interest of self-preservation.

Parents (in practice, fathers) could also favour their heirs through testamentary gifts in their wills (common only in cases of divorce known as the separation of property, which occurred more among the upper classes).

[2] The Custom also had implications for blended families, which were extremely common in New France (approximately 1/4 to 1/3 of marriages involved at least one spouse who had been previously married, but that proportion decreased over time).

[2] The general historiographic consensus based on case studies in Quebec is that egalitarian inheritance practices, as stipulated in the Custom of Paris, were observed in the early period of the colony in the 16th and the 17th centuries.

In the early settlement of New France, settlers would practice equality of the division of property post mortem in its purest form so they were frequently more egalitarian than what the Custom prescribed.

[6] During this period of early settlement, families profited from the abundance of virgin land and frequently purchased vast plots with the intention of providing for their offspring post mortem.

[6] At this time, the law for the equitable distribution of land among both female and male offspring was observed so girls received their due portion of the estate in conjunction with their allocation of movable assets.

[10] The shift from an egalitarian system to inequality was motivated by numerous factors including the introduction of English freedom of testation in 1774, the development of the grain market, and the increased bond between man and land.

[10] Some historians, such as Sylvie Dépatie who carried out a case study of Île Jésus, argued that rather than the changing man-to-land ratio, the primary use of inter vivos gifts stemmed from concerns for the productive capacity of property.

[6] That shows a pattern of preferential treatment not in the fashion of primogeniture or ultimogeniture and suggests that the primary concern was pragmatic, the preservation of estates, but emotional considerations are assumed to have been a motivating factor.

[5] Evidence of efficient notarial work that prevented civil conflict is found in the fact that few cases concerning real property went to courts; typically, such issues were resolved between the parties.

Thus, the legacy of the Custom of Paris in New France is that its evolved successor, Quebec's modern system of civil private law, laid the foundation for Canadian bijuralism, which has been a distinct and important feature of justice in Canada since its inception.