Following Jacques Cartier's voyages up and down the St. Lawrence River in 1534, 1535–36 and 1541–42, French interest in the region surged. This interest was confined to the region's potential deposits of minerals, and then diverted realistically to the trade of furs, before ultimately, during the seventeenth century, it diversified to take into account the prospect of agricultural smallholding. So confined, this interest did not account for customary tenure and systems of property relations among indigenous inhabitants; generally these were matters avoided by merchants, traders, missionaries, and early settlers until the expediencies of settlement on the ground required otherwise. These were matters for which, in New France, the companies in charge devised no coherent policy. These were matters for which, at home, the French Crown was no beacon of advice either, meting out meager and inconsistent policies of empire before 1663, preferring instead to endorse trade monopolies while preparing for disputes with neighboring nations with competing designs to the New World.
Therefore, settler colonialism got underway in New France without the recognition of indigenous property rights in land. Land was granted by companies seigneurially, and came to be held and farmed by censitaires. Titles carried no endorsement from resident indigenous communities, and the vague endorsement they carried from the Crown—whose role was less important in the development of New World feudalism than it was in earlier centuries at home—was universally purveyed by outsourced corporate entities, the biggest of which being the Compangie de la Nouvelle-France, chartered in 1627.
Australia was similar, insofar as there, too, indigenous occupants were considered devoid of property rights in land, which allowed for a newly installed regime to grant land to settlers without purchase or conquest. This has enamored several historians of the concept of terra nullius, which, if defined as a combination of practices in colonial land law amounting to the dispossession of prior inhabitants without acknowledging their natural claim to the region, is certainly compatible with early New South Wales and its subsequent colonial progeny. “Terra nullius is such a basic and well-known fact of Australian history,” writes Stuart Banner in an article printed in this journal, wherein he explains how and why Aborigines were not considered owners of their land.Footnote 1
His approach, akin to Henry Reynolds's (and others'), is to regard terra nullius more as a convention of settler colonialism than as a coherent legal doctrine, used to explain the process of dispossession rather than the legal justifications behind that process.Footnote 2 Used in this fashion, terra nullius fits French Canada, although critics note that this approach is doctrinally unfaithful and potentially misleading. Lauren Benton and Benjamin Straumann convey this opinion most impressively—likewise, in this journal—warning against the misuse of Roman law ideas out of context. Terra nullius is, for them, anachronistic. As an idea in international law, it blossomed in the nineteenth century, and “merely derived from the Roman concept of res nullius by analogy.” Res nullius (things without owners), they submit, had far more coherent doctrinal substance than terra nullius during the age of discovery; however, even it was misused by “imperial agents” in this period, and the same might rightly be said for vacuum domicilium (vacancy).Footnote 3 Jumping two centuries forward to return to colonial Australia, other scholars sensitive to juristic thought and intellectual history argue that terra nullius was barely contemplated, if at all, during the first century of occupation.Footnote 4 There too, it seems, terra nullius is anachronistic. Following the considered genealogies of legal terminology emergent from this school of thought, French Canada cannot fit this framework: as neither res nullius nor terra nullius were applied to New France contemporary with its discovery and settlement by Europeans, this kind of language is irrelevant to this context and elsewhere in the early colonial Atlantic.
There exists, then, a polarized debate about terra nullius. The French Atlantic Empire does not figure in these discussions, unlike the British Pacific Empire, for example. In Australia, its application as an official colonizing rationale has been scrutinized to a greater extent than it has in other locales, which is at least partially explained by the way common law Aboriginal title developed in Australian courts (which was very different from the mechanisms concurrently in place for redressing les Premières Nations au Québec). Prompted, in large part, by the courts' appropriation of terra nullius as legal fiction up to Mabo v Qld (no. 2) in 1992, and the statutory reckoning following that decision, this intellectual history debate simmered strongly before boiling down to conflicting research methodologies, motivations, and sympathies. Amid little consensus, some things are not debated by historians of early Australia. Whether scholars regard terra nullius to be anachronistic or omnipresent in colonial policy, none argue that Aboriginal rights to land were acknowledged and acquired by purchase or cession at the outset, because this did not happen in colonial New South Wales.Footnote 5 Nor, this article will show, did this happen in colonial New France. Hereafter, where I suggest that New France was treated as terra nullius, I am not making any claims about the application of a coherent legal doctrine, but am referring instead to a set of practices whereby rights to property in land were created for newcomers after the rights of prior inhabitants to property in land were disregarded.
If, as Stuart Banner remarks in reference to Australia, “terra nullius, once underway, was extraordinarily difficult to reverse,” what remains to be explored is how the practice of ignoring indigenous land ownership persists through regime change.Footnote 6 It is axiomatic that dispossession in settler societies is more than a historical occurrence; it is a constitutional inheritance (and this explains why historians and lawyers come to share an interest in the topic). Therefore, if terra nullius was practiced in early New France—a question that requires a less fleeting examination than historians have hitherto offered it—then it is important to reflect on the longevity of its influence during regime changes in 1663 (when royal government replaced the Compagnie de la Nouvelle-France) and 1759 (when the British “conquered” Canada). How were the rights of indigenous communities understood in early New France, and how important was this understanding to what came later, namely, more and more dispossession, amid decided attempts to eradicate indigenous legal regimes? And how have historians of early Canada come to these questions?
My interest here, which is as much historiographical as historical, has been sparked by recent scholarship on law and empire, which has so far found its strongest application to sites in the English Atlantic and English Pacific. However, the intricacies of these new approaches stands in contrast to what might be called the established French Canadian interpretation of sovereignty and property in the early colonial period. There are some exceptions in recent years, however, one of whom is Allan Greer, who explores the differences of dispossession in New France, New Spain, and New England during the sixteenth, seventeenth, and eighteenth centuries, asking why purchases and treaties were necessary in some areas but unnecessary in others.Footnote 7 Elsewhere, in a compelling article in American Historical Review, Greer compares how settlers “created new forms of tenure and wrested control of lands from indigenous peoples,” and in doing so, he presents a novel narrative of dispossession in which “indigenous commons” clash with settler commons before their ultimate destruction by enclosure and improvement.Footnote 8 This approach is complemented by that developed recently by Helen Dewar, perhaps the leading historian of French colonial companies in the Atlantic. For Dewar, the Compagnie de la Nouvelle-France reflected the consolidation of French maritime authority, and was used as a vehicle to strengthen commerce and navigation. Distancing herself from indigenous–settler relations, Dewar instead looks at the negotiations among metropolitan powerbrokers, as Crown sovereignty was feebly extended to the kingdom's peripheries, and quarreled over by multiple parties claiming to represent the king's interest, in the period between 1627 and 1663.Footnote 9
Therefore, if this article is seen as an attempt to connect the legal history of early New France with the rest of the Atlantic world, then recent and emerging scholarship by those such as Greer and Dewar suggest that this trend is underway. However, this has taken time, and many interpretations of the pre-1663 period established in the 1980s and 1990s remain largely unchallenged. This is problematic because much of this research began as “juridical history” (or “indigenous rights history,” “law office history,” or “advocacy history”): a body of historical scholarship designed to connect with the concerns of lawyers and the aboriginal claimants they represented.Footnote 10 These authors often meant well, but their pragmatic methodologies often led them to make claims that were slightly inaccurate, overly politicized, and, at times, weirdly Whiggish. To be fair, often these were not the faults of the historians—or the litigators who sometimes employed them—but rather the interpretative repertoire at their disposal. As historical concepts, sovereignty and property, we know, are fickle, more so the former, which can easily be ethnocentrically and/or anachronistically and/or spatially understood.Footnote 11 Recent contributions, many in this journal, have gone a long way to address these shortfalls, in particular those by Lauren Benton amid her successful Search for Sovereignty in 2009, whose ideas tacitly animate my own contribution that follows.Footnote 12 However, here I am more interested in property than in sovereignty, which remains, I think, a safer and more empirical concept, although it, too, has received its fair share of interpretative diversity and confusion at the hands of New France's historians.
This article risks adding to this confusion by identifying, in as simple a fashion as possible, how things were possessed and dispossessed in New France. The focus here is on land, to which natives and settlers came from very different backgrounds. Respectfully turning away, for a moment, from the absorbing debate about the extent to which the Roman doctrine of terra nullius was a coherent doctrine, or legal “rationale” for superimposing European systems of property relations on top of indigenous ones across the world, this article focuses, instead, on the procedures and conventions of colonizing on the ground. Doing so makes it is easy to identify where foundational settler rights to land originate. That is to say, gauging whether or not aboriginal title is (or, perhaps more fittingly, aboriginal titles are) observed by outsiders requires a more empirical assessment than certain historians of New France have provided for, and that is what this article intends to address. Colonizers, whether employed by companies or crowns, whether entrepreneurs or servants obedient to royal ambition, acted either as though colonized communities enjoyed full rights to their land, some rights to their land, or no rights at all, and their actions jeopardized indigenous communities in different and often more devastating ways than did the Latin substance of the legal canon, irrespective of which title deeds were drawn up and which improvements were made.
Like Dewar's research, this article takes seriously the age of company rule in New France. However, our approaches to the legal history of the region is somewhat different. The negotiation of jurisdiction by indigenous leaders and company men is considered more important, in my argument that follows, than the negotiation of jurisdiction by company men and officials in France, which is Dewar's foremost concern. The company's independence in matters colonial, and its organic authority, are accordingly here discussed in relation to their influence on indigenous society and culture. Indebted to Dewar, this interpretation also takes its inspiration from the recent studies of corporate entities in the early modern period by Philip J. Stern, for whom the early English East India Company was a company with sovereignty and subjects, a company that made war and peace, a company with courts, tax-systems, and a complex governmentality; no less than a “Company-State.”Footnote 13 Companies, following Stern, warrant their own appraisal, distanced from metropolitan narratives of imperialism, because often it was they who did the dirty work of empire. It is encouraging that a very similar concern can be found animating recent international law scholarship also, at the coalescence of human rights and corporate accountability. A growing literature on nongovernmental entities has emerged in the last few years, which seeks to upset the interpretative division of state and non-state forms, a concern that has arisen in response to the jurisdictional difficulties associated with the prosecution of transnational corporate entities for human rights abuses across the globe and on the seas.Footnote 14
With these and other concerns found in a thriving legal-historical literature on imperialism in mind, this article seeks to explore what exactly we know about Franco–aboriginal diplomacy in early Canada, during a period when sovereignty was layered, and companies more than crowns established the status quo. How was property created, and how were rights acknowledged on the ground? Emancipated from the litigational methodology of juridical history, with an eye on other settler colonial locales in Atlantic and Pacific worlds, I explore the historiography and excavate relevant primary evidence to propose a number of revisions to established interpretations of empty lands and terra nullius, the importance of the French Crown, the installation of new interests in land, and the extinguishing of indigenous interests.
Indigenous, Monarchic, and Corporate Interests in New France
Malecites, Abenakis, Mi'kmaqs, Etchemins, Montagnais, and Algonquins (i.e., the Algonquian language group), and Hurons, Hochelagas, Stadaconas, Oneidas, Onondagas, and Mohawks (i.e., the Iroquoian language group) occupied territory either side of the St. Lawrence, and from Lake Ontario to the Bay of Fundy: they had done so ancestrally (probably with other communities), and they continued to do so at the time of discovery, and also during the seventeenth century (if in consolidated or variegated form). This is a simple observation, but an important one with which to commence this article. Puzzlingly, historians sometimes regard great stretches of this area as a vacuum. First explorers catalogued their meetings with Iroquoian and Algonquian communities; later, companies sought their fish and furs to trade, and missionaries set out for souls to save.
However, historians of New France sometimes establish this territory as a tabula rasa, or otherwise depict it as a shared space free of conflict, confusing the absence of purchases and treaties with the lack of necessity to make such purchases and treaties. This interpretation has found its most recent rendition in Allan Greer's comparative research, where he argues that “the French did not need to extinguish native tenure in order to institute European-colonial tenure,” because the introduction of “feudal tenure left ample room for native possession in most areas.”Footnote 15 Greer, at least, recognizes that there was some kind of “native possession” on the St. Lawrence; other historians are less sure, particularly with regard to the period of early settlement along the river. Too much, it seems, is made of the so-called “disappearance of the St. Lawrence Iroquois,” which took place, according to Bruce Trigger, “sometime between 1542 and 1603.”Footnote 16 It is true that the Iroquoian-speaking communities at Stadacona (Québec) and Hochelaga (Montreal), who met Cartier in 1535, were less interested in these habitations by the time French companies took interest in the land. But by whatever reasoning one explains the emptiness of these two sites—depopulation by disease or warfare, absorption, migration, all of them empirically uncertain—this event says nothing about the lands hugging the rest of the giant river, stretching over 1,200 km from Lake Ontario to the Gulf. Was this entire region truly depopulated of indigenous peoples at conquest? For W. J. Eccles, it was. “The entire St Lawrence valley was unoccupied. There was, therefore, no need for the French to seize the land by conquest or to obtain title by purchase,” he writes (although, in the next sentence of his oft-cited article “Sovereignty-Association,” he nevertheless submits that Hurons and Algonquins frequented the region).Footnote 17 Others interpret similarly. Legal scholar, and one of the founding fathers of the doctrine of aboriginal title, Brian Slattery rather suggests that “[m]uch of the land settled by the French in the St. Lawrence Valley seems to have been unoccupied at the time of settlement,” which for him is grounds to insist that French and Indian enjoyed “good relations.”Footnote 18 Likewise, for Cornelius Jaenen, the French established themselves “in largely unoccupied lands.” Jaenen's observations require quoting at length, as they provide one of the rare occasions in which terra nullius as an idea is broached by scholars of New France:
The valleys of the St. Lawrence and the Annapolis, where they started settlements in the early seventeenth century, were not at that time inhabited […] [This] gave initial French colonization a unique and important characteristic. In these restricted areas, the French, not unlike the Amerindians who had migrated from Asia to North America, were able to move into terra nullius from another continent. The immediate consequence of this rather unique situation was that from the outset there was no question of displacement of aboriginal residents or of concern about legitimate title to lands appropriated. The colonization of New France, therefore, began without evident concern about territorial occupancy as a factor in French-Amerindian relations.Footnote 19
From the outset, it is interesting to note that here (among many other examples in the juridical historiography of New France), the construct “territorial occupancy” is encountered in application only to indigenous communities, in contrast to concepts of possession and title, which are more commonly reserved for Europeans.Footnote 20 Putting aside the accidental invocation of an Enlightenment-style ethnocentricism (as seeing seminomadic peoples communally sharing a territory in contrast to Europeans individually carving up dominium necessarily entails), the assumption shared by these scholars, which is still prominent in the national narrative, can be put as follows: indigenous access to ancestral lands and waterways was minimally restricted during the first century of French contact; there were no victims of dispossession, because both communities lived in amity, enriching themselves from the same land, one making use of feudal tenure and the other enjoying the hunt as ever.Footnote 21 There is a discriminatory logic subtly at work in historical arguments of this kind, because the distinction between those entitled to receive usufruct and those entitled to receive value from improvements was very quickly made by administrators in New France (and would become starker as the centuries passed in Québec). One seldom encounters in the historiography, on the other hand, the counteracting assertion that this argument naturally begs: namely, that to “displace” invaded communities, and to jeopardize the “territorial occupancy” of those same communities by insisting that they share the region, are both activities that rely on a colonially imposed ideological barrier that separates the property rights of newcomers from the “territorial rights” of natives.
Akin to the frontier real estate agent, certain historians have spoken of “unoccupied” land, while making a business of its indigenous occupancy at the same time. Most “juridical historians” of the 1980s and 1990s were persuaded by Champlain's remarks on an Iroquois-free St. Lawrence, and the post-Alfred Crosby emphasis on great epidemiological catastrophes; surprisingly few were prepared to reflect on the dynamic kinds of use arrangements of Iroquoians and Algonquians, and fewer still were prepared to explore the implications of geographical mobility necessitated by seasonal migrations, demographic fluctuations, and intertribal hostility across a great part of northeastern North America during the period in question. Were such concerns to accompany their research, it would have been more difficult to suggest that any part of this territory was “not inhabited” or “unoccupied” or abandoned forever: a domain never-to-be requited. By resisting the temptation to interpret preconquest geographies relative to those introduced across the postconquest period, and by deferring to the archive wherever in doubt, it is difficult to maintain that these lands were empty, even as epidemics spread through the area.
What, then, of the “disappearance of the St. Lawrence Iroquois”? We cannot be sure. Maybe these sites were hit by disease, as this was an era of significant epidemiological volatility; perhaps these communities were absorbed by Iroquois communities (Mohawk, Onondaga) to the immediate south; perhaps they were evicted by their enemies the Hurons and Montagnais and resettled even further away. In any case, it is impossible to hold that “the Iroquois” were absent from the valley in the seventeenth century; as I will address subsequently in this article, the St. Lawrence Montagnais in the 1600s were desperate to secure company protection against raids on them by Iroquois, which led them to sign treaties of mutual protection (although not of land cession) with Champlain and the newcomers. The threat was real and it did not disappear. If anything, it grew more pressing. After 1642, new settlers on the St. Lawrence were regularly under attack from the same enemy, as the archives bear out. The most spectacular example of this came in 1660–61, when Montreal habitants copped a brutal onslaught (as detailed thoroughly in the Jesuit Relations).Footnote 22 These Iroquois were not the objects of myth; their startling and inescapable presence was known to—and despised by—all who lived along the St. Lawrence.
At the risk of preaching to the converted, it is necessary now to qualify that terra nullius was not “unique” to the French colonization of Québec, as Jaenen puts it, and explore the question more broadly than he does. If terra nullius is defined as a practice and not a doctrine, then imperial history yields several case studies rather than one or a few. The mass creation of settler freeholds before conquering the pre-existing polity, or attempting to conform to (or extinguish) its conventions of land tenure, also occurred in other patches of Atlantic North America and in parts of Southern Africa, and it also occurred incrementally across the entire continent of Australia. From the outset never recognized as the official “rationale” or legal “doctrine” of settlement in the Atlantic World, nevertheless as a practice, terra nullius was more common in the seventeenth and eighteenth centuries than some historians suggest (especially in the first generations of European settlement when chartered companies were usually the administrators, of which probably only the Somers Island Company in Bermuda and the English East India Company in St. Helena established themselves in truly vacuum domicilium). It is true that large tracts of North America were bought from indigenous sellers by settlers, if at times treacherously, as Banner best shows in How The Indians Lost Their Land,Footnote 23 but in neither Canada nor America were aboriginal titles extinguished at the outset at one fell swoop, and New France was no exception, as much of the area remained unsold and unceded into the period of British rule in 1763 (and even escaped the purview of the “Numbered Treaties” after 1870).
Regarding terra nullius as a European convention of settling without extinguishment (as opposed to seeing it strictly as a Crown-endorsed doctrine) brings us naturally to interrogate the role of the French monarchy and its official representatives in the dispossession of indigenous populations in this part of the world. In the sixteenth century, the Crown sponsored a number of expeditions of discovery, issuing a series of commissions to that effect, the most famous granted to Roberval in 1541. Research by legal scholar Brian Slattery provides the best overview of this period, a good portion of which is devoted to an argument about the impact of such decrees on indigenous sovereignty and property. Focusing on the Crown, and those whom Benton and Straumann call “imperial agents,” he comes to the conclusion that it is difficult to argue “that France prior to 1560 officially asserted territorial rights in North America in a clear or sustained manner, or that its explorers launched territorial claims on its behalf,” he writes.Footnote 24 He continues, “It does not appear that France denied the capacity of indigenous American groups to conduct relations with Christian powers, or regarded their lands as territorium nullius. The evidence is sparse, but it suggests that France accepted these peoples as independent political entities, with authority over the lands they possessed.”Footnote 25
Slattery's musings on the substance of royal legal thought, and more specifically, his speculation as to what “France” thought about the Stadacona Iroquois in accordance with international legal thought, contribute valuably to our understanding of the motivations and justifications of the metropole in this period. But in the end, such thinking—to the extent that we may assume it even prevailed—did not trickle down to the frontier; and when it did, that trickle was by no means pure. In reality, what the French king and council thought about conquest and invasion, and how subjects and settler-descendents implemented those objectives, were different things (a point that would appear to pour cold water over the warmish debate among historians of New France about Crown understandings of indigenous sovereignty and independence).Footnote 26 Also, given that there were no significant settlements and combined with this a decided lack of European interest in regions that far north before 1600, little reason, therefore, existed yet to bother rationalizing the acquisition of land by invoking any Roman law doctrines of res nullius, or vacuum domicilium, or something similar. To the extent that any metropolitan doctrine prevailed, it was that of discovery, which entailed different protocols and elaborate European advertising campaigns. On this point, Slattery is right to reject unequivocally that a few coastal ceremonies of possession—the elaborate erection of Christian-decorated navigational aids—affected imperium and dominium in New France. This is in accordance with the general current of recent scholarship on the doctrine, and contributes to body of work that is skeptical of the legal importance of glorious Christian acts of possession.Footnote 27 The French Crown, Slattery suggests—albeit at times ambivalently—was unable to take away or modify any indigenous rights, while remaining reliant on the doctrine of discovery alone.Footnote 28
This is straightforward enough; perhaps, however, this could all move further away from the monarchocentric perspective of discovery and conquest, and inquiries might instead be made as to how colonial actors engaged with indigenous polities, and what conventions of colonization were established by corporate interests on settler frontiers. It runs against the grain of the historiography of New France—and the works of some historians of the English AtlanticFootnote 29—to suggest that the Crown's direct importance in matters relating to colonial land was fairly minimal in this period, but that is a key assumption of this article. What was the job of the king and council, then? Their knowledge of such land and their imagination of it to be lucrative were enough. Funding and organizing the establishment of New France was expensive; therefore, for the most part, colonization was left up to outsourced interests. Serious commercial prospectors were slow to emerge, but eventually they did, beckoning the era that has been called the “heroic age,” although it might just as appropriately be regarded the “corporate age.”Footnote 30 Following the commission of Seigneur de la Roche in 1577, a number of jealous merchants held out their hands for monopoly rights in the New World after hustling the landed French elite for sponsorship. This was the means by which, from the reign of Henry IV up to the introduction of royal government by Louis XIV in 1663, a series of private interests—led by entrepreneurs such as de la Roche, de Tonnetuit, de Chaste, de Monts, the de Caëns, Champlain, and Richelieu—founded New France.Footnote 31
These companies sought royal permission to seek maximum profits by excluding other, unauthorized merchants from the realm of France only. This was in the king's power to authorize, but little else was. The subtlety of this point has sometimes escaped historians. Therefore, when Eccles suggests that grants of monopoly rights were designed “to exclude foreigners,” and that charters could “forestall claims by other powers,” he appears to be somewhat overestimating royal capacity.Footnote 32 Charters, commissions, letters patent, and other similar royal instructions were issued to establish guidelines for subjects of the realm of the issuing monarch; subjects of other sovereigns, whether “infidel” or Christian, had minimal (if any) obligation to acknowledge the concessions contained within these documents. Certainly this had become the status quo from the mid-sixteenth century, when the Iberian grip of the world was pried loose by Dutch, English, and French rivals. The Treaty of Tordesillas of 1494, and associated papal bulls of Alexander VI (et al.), which divided the world into Spanish and Portuguese spheres of influence in the late fifteenth century, provoked spirited debate among jurists, and slowly it became established that praescriptio sine possessione haud valeat.Footnote 33 France itself had argued as much to Spain in 1540 regarding the expeditions of Jacques Cartier,Footnote 34 as did England in 1580 regarding Francis Drake.Footnote 35 The two superpowers even quarreled among themselves on the issue. When in 1613 the Virginia Company's Samuel Argall ransacked St. Sauveur in a fit of hot-headedness—apparently, because René le Coq de la Saussaye failed to show his “commissions & royal letters,” and was therefore a “pirate” in the Virginia Company's chartered area—the resultant diplomatic row over paper rights never reached a definitive resolution.Footnote 36 In the end, both parties walked away with the idea that actual possession, and the military might to flank that possession, had become the criteria for exclusive territorial rights in Acadia, as in New France, and the rest of the Atlantic coast.Footnote 37
Crucially, this was convention by which corporate-sponsored colonists, not European statesmen, were to abide. After this, it is true that European diplomacy of the postconflict type did, occasionally, warrant reference to charters and similar documents in order to clarify claims of actual ownership and restitution. This happened, for example, when Québec was restored by the Treaty of Saint-Germain-en-Laye (1632), and later when territorial demarcations within charters were loosely observed in the Treaties of Whitehall (1686), Ryswick (1697), Utrecht (1713) and Paris (1763),Footnote 38 but in all such instances, the recognition of these rights was negotiated and never mandatory. Charters then carried no weight in international law (as now, the same may be said with respect to just about any national statute conceivable); even subjects of the issuing realm were inclined to disobey them in the Atlantic World, as, for example, in this period when established West Country fishermen in Newfoundland ignored John Guy's public readings of the London and Bristol Company's charter in Cupid's Cove throughout the 1610s.Footnote 39 Charters alone were not all that strong. The fanfare of postwar negotiations conducted thousands of kilometers away from North America in this period should not deafen us to this reality. Actual possession mattered above all, and those in actual possession of New France for most of the period between 1600 and 1663—excepter les autochtones—were company-governed merchants, missionaries, and settlers, for whom Bibles were about as important as charters when it came to the preservation of their rights to land and life.
All of this is to suggest that it is worth keeping in mind that, for most of the seventeenth century at least, French companies—likewise, English and Dutch companies—interacted with indigenous inhabitants overseas away from their realm, and beyond the direct control of the Crown. Historians of New France (and other settler-colonial locales) have occasionally overstated the wills of the monarchs making policy and issuing charters and similar documents, although this matter of interpretation is open to debate. Barely ajar, by contrast, I feel should be the debate about the impact of such documents on indigenous sovereignty and land rights. Although it is true that several clauses mention indigenous people, to imagine on that basis, as some have, that these clauses hold the key to unlocking the secrets of aboriginal title and European “effective control” is untenable.Footnote 40 Commissions and letters patent issued to various companies between January 1598 and December 1603, those issued to Champlain in 1612 and 1625, and the 1627 charter establishing Richelieu's Compagnie de la Nouvelle-France, contained only guidelines for each company to follow with respect to interactions with local chiefs for the purpose of establishing trade in their territories.Footnote 41 It went far beyond the legal capability of such documents to extinguish aboriginal title. That job had to be done—if at all—on the ground, by individuals in the service of companies. In the rest of this article, such a job will be my main concern.
Possession and Dispossession in New France to 1663
In 1600, Pierre de Chauvin de Tonnetuit undertook to plant fifty settlers at Tadoussac, a trading site on the Saguenay River. The sixteen settlers he actually planted there endured a terrible winter, and were forced to “take refuge” with the local Montagnais community. It appears that no transactions for land were made by this unfortunate party, because it seems that the five who survived the winter returned to France when their fleet returned to Paris—with two Montagnais diplomats—in the autumn of 1601.Footnote 42 Little of European significance happened at Tadoussac until Samuel Champlain visited the trading site in 1603 on behalf of the merchants of Rouen and St. Malo (custodians of de Tonnetuit's monopoly after his death). In May of that year, Champlain met with Montagnais chief Anadabijou, and approximately 100 followers of Montagnais, Algonquin, and Etchemin backgrounds, where a “tabagie” took place. There is no evidence that the rights of imperium and dominium were discussed, and no official or signed record of the agreement exists. All we have is Champlain's recollection of the event, which is descriptive but one-sided and, without question, written with his royal audience in mind. In the most important phrase of his account, Champlain reported that the chief acknowledged that “His [French] Majesty wished [them] well and wanted to people the land, and make peace with their enemies (who are the Iroquois), or send their forces to defeat them.”Footnote 43
In spite of the deficiency of Champlain's account, historians have taken this treaty very seriously. For Camil Girard and Édith Gagné, this “alliance” was the first treaty to reflect what they consider to be a more assertive French approach to New World territories.Footnote 44 For Marcel Trudel, this was Chief Anadabijou's green light to fill the country with settlers. “The French received, during the course of this formal meeting, the general authorization to inhabit the country,” he writes. “There was no stealing [land] from the indigene.”Footnote 45 On the other side of the coin, Olive P. Dickason is right to point out that this “pact of friendship […] did not involve land title.”Footnote 46 It is necessary to add that even if Champlain had purported the treaty to be a cession of land—which he never did—the absence of witnesses, signatures, and clear demarcations of the land in question renders the matter somewhat academic. At any rate, it is difficult to see how “the French Crown laid claim to the land” as a result of this interaction at Tadoussac, as Eccles insists, or that it offered “an assertion of the territorial claims of the King of France, over and above the hope of making contacts with populations in the interior and gaining access to the territories of their new allies,” as Andrée Lajoie and Pierre Verville write.Footnote 47 Here was a peace arrangement between a merchant mapmaker and an indigenous leader; it was neither a transaction of cession between two sovereigns, nor a contract of sale between a willing seller and a willing buyer.
Eccles further qualifies that “[t]he French then had no interest in the land itself, only with what it and its adjacent waters produced,” at Tadoussac.Footnote 48 The concept of usufruct problematizes statements such as this. Property has a hydra-headed nature, such that some define it as a “bundle of rights.” If we were to modify Eccles's observation accordingly, then, it would be to equivocate that having “an interest” in the commodities accruable from land, whether or not at the exclusion of other interests from accessing those commodities, is akin to having some “interest in the land itself.” Even this revision is not entirely complete, however, as it takes into no consideration the addition of improvements. Building immovable property on land complicates matters. As John Locke declared to the world, mixing labor with land “excludes the common right of other men,” and this is a theme that John C. Weaver riffs on with great success in his global history of property and settler colonialism, The Great Land Rush and the Making of the Modern World, 1650–1900 (2003). Footnote 49 Now I return to the specific example of Tadoussac: how do we conceive of the right to access and inhabit “the house (with galleries and moats) for the use of the company,” built there?Footnote 50 The title to this establishment of the Rouen and St. Malo merchants (and, likewise their great successor, the Compagnie de la Nouvelle-France), if any, was obscure in 1603, but with time and the addition of improvements, exclusive ownership became de facto: no local Montagnais desired to reside in the building, and probably would have been refused permission if they had. Likewise, this came to apply a little later to English traders, as exemplified by the eviction of the Kirke brothers' Anglo-Scotch Company in 1632.
To clarify, corporate title to Tadoussac, although obscured by the fact that it was never ratified in a transaction or acknowledged by a sovereign, appears to have been secured not after a jovial tabagie in 1603, but when external interests came to acknowledge the company's interest. In this respect, the same observation applies to the fortification of Québec from 1608 up to 1632. Although, writes Trigger, in 1614, “the settlement at Québec became the property, and therefore the responsibility, of the new company [i.e. Compagnie du Canada],”Footnote 51 only in 1632 would title to Québec be identified and thus rendered secure: in that year, title was acknowledged by Charles I of England in the Treaty of Saint-Germain-en-Laye, and restored to the Compagnie de la Nouvelle-France. Port Royal (established in 1604) was restored similarly, in spite of the royal paperwork of the Anglo-Scotch Company which also coveted that establishment. Times evidently had changed since the days of Samuel Argall.Footnote 52 Later, Port Royal, along with key other company settlements in Acadia—Penobscot/Pentagouet, St. John, La Hève, and Cape Sable—were likewise confirmed as possessions of the French by the English Crown in 1668.Footnote 53
This crucial method to concoct arriviste titles to land out of thin air was deployed in a number of seventeenth century sites of settler colonialism in northeastern North America, a method that did not necessarily entail courting with indigenous peoples; rather, what it entailed was crying foul to other Europeans.Footnote 54 Although writing in a different context, property expert Carol Rose reminds us that “[y]ou can claim that something is yours until you are blue in the face, but unless others recognize your claims, it does you little good.”Footnote 55 This observation appears to apply historically, with ethnocentric qualification, to Tadoussac, to the more significant settlements within vicinity of Québec, Trois-Rivières, and Montreal, and, to a more hectic extent, to Acadia (which changed hands many times before 1763). Title by definition has to be recognized for it to exist; the crucial pattern established in these locales was that French titles to land were recognized, but aboriginal titles were not.
Champlain remained allied to the Montagnais after his alliance of 1603, promising them assistance against the Iroquois in Québec again in the summer of 1608, and subsequently thereafter, during his brief Indiana Jones-like adventures upriver into the lands of fur-bearing Algonquians and hostile Iroquois.Footnote 56 Informal promises of protection against Iroquois were extended to the trading nations around the St. Lawrence river during these trips. They were confirmed and extended in 1615, when Champlain journeyed deeper into Huron country than ever before; there, he and a dozen comrades wintered as a sign of commitment to his alliance, and ventured on several excursions, forming peace alliances with many Algonquian communities who were encouraged to trade at Tadoussac and Québec.Footnote 57
This French–Huron–Algonquian alliance—an alliance of trade and mutual protection—soon attracted nearby Iroquois to seek peace and join. Tentatively, in 1622, the Iroquois and Montagnais made a brief alliance, for the purpose of “making peace.”Footnote 58 Two years later, thirty-five canoes full of Iroquois arrived at the St. Lawrence river to sign a treaty of mutual peace between the Hurons, the French, and the Iroquois. This treaty lasted until the beginning of 1627, when a few Montagnais warriors became compelled to slaughter two Iroquois, and open hostilities commenced again.Footnote 59 It would not be until 1653 that the Iroquois would commit to peace again with company-ruled New France, during Lauson's governance; except this time the St. Lawrence Hurons were not included, and as a result were subsequently obliterated in a series of Mohawk raids over the next three years before the French–Iroquois peace arrangement collapsed again.Footnote 60 Historian George T. Hunt, writing in 1940, was correct to emphasize the commercial nature of such peace treaties (and tellingly, this aspect of his groundbreaking argument remains unpicked at, in spite of the strangely elaborate historiography of Iroquois motivations that emerged to take issue with Hunt's interpretation).Footnote 61 Aboriginal land rights were neither acknowledged nor extinguished in transactions of this type, and sovereignty was exhibited by all parties in the diplomacy. As such, it is not for this overview to dwell upon these treaties, because colonization and missionary activity occurred irrespective of them.
Visionaries and entrepreneurs associated with the French companies were tentative to settle colonists after the failure of de Tonnetuit's Tadoussac plan. There are some exceptions. In August 1604, Jean de Biencourt de Poutrincourt was granted Port Royal in seigneury, and in 1610, he would subdivide a portion of this land and allocate patches to agriculturalist bachelors.Footnote 62 Thus, the first European property rights in Acadia came to be, without the express consent of the Malicite, Etchemin, and Mi'kmaq. À la Tadoussac, Champlain had made an agreement of “amity” with local chiefs Bessabez and Cabahis in September 1604, in which he expressed the intention of French merchants to send colonists to people the country, but yet again, this entailed no cession or purchase.Footnote 63
Slowly, settlement got underway elsewhere. In 1617, Louis Hébert moved from Paris to New France and, after a few years of indentured service, he and his family received a fief near Québec. Shortly after this, in 1624, the first serious stock farming experiments took place at Cape Torment, 50 km downstream under the auspices of the Compagnie de Caën.Footnote 64 However, until the founding of the Compagnie de la Nouvelle-France in 1627, these experiments encompassed the extent of the French settler project in the region. By the terms of the new company's charter, however, 4,000 colonists were to be settled within 15 years. Although the company fell short of this pledge, it did oversee a population rise from 50 to 3,500, and had granted over seventy seigneuries during their administration of New France by 1663. Of these seigneuries, forty-eight were granted along a 320 km strip of St. Lawrence-fronted land between Montreal and Québec, either as small town concessions or large agricultural plots with censitaires.Footnote 65 All grants were made without purchasing land from the Montagnais or the Huron, and coincidentally, they inspired the violent defiance of local Iroquois.Footnote 66
The first monastery was established near Québec in 1615 by the Récollets, but it would not be until the rule of the Compagnie de la Nouvelle-France, and the installation of the Jesuit order, that expansionist missionary work would truly commence. This expansion was checked by indigenous people, who invariably decided whether or not missionaries could preach in their land. Father Jogues and a party of Huron converts, for example, found themselves captive to the hostile Mohawk in 1642; Jogues eventually escaped, but confidently he returned with Jean Bourdon of the Compagnie de la Nouvelle-France in May 1646 to secure a French–Mohawk peace alliance. But when he attempted to ratify the treaty with the Mohawk this time, Jogues was considered an evil sorcerer and was slaughtered.Footnote 67 Another example is that of Father Ragueneau, who likewise found himself subordinate to the authority of indigenous people, although in his case, it was to the supposedly friendly Algonquins. In 1650, he crossed the Ottawa River at Allumette Island with a party of Hurons, where he faced their long-established passage toll. To avoid the toll, he told the local chief that the French were sovereigns of the land and its people. Outraged, the chief ordered that the reverend father be tied to a tree by his armpits—where, indeed, he hung until he learned the wrong of his interpretation.Footnote 68
Thankfully for Jesuit priests, the religious substance of the missionary project did not require indigenous individuals to renounce their sovereignty; but what it did require was some form of land rights. Missionaries had to establish themselves in foreign country and request temporary permission to reside among locals, as they did on the Great Lakes; otherwise they built great establishments in the hope of attracting converts, as they did around the St. Lawrence river. One such establishment was Sillery, one of the earliest missionary enterprises in the early period. Conceived in the 1630s as a place away from Québec for conversion and religious instruction, Sillery was finally established in 1651 when land was availed to the Jesuits eight kilometers upstream from Québec, and on the other side of the great river.Footnote 69
The terms of the land transfer, dated July 1651, require our attention:
The Compagnie de la Nouvelle-France has given [...] the savages [...] a league of land on the Great St. Lawrence River, bound on the one side by the headland which ends at the cove of St. Joseph or Sillery, and the coast of Québec at the other side, where this league runs along the great river four leagues deep, into the woods or in the lands to the north, with all rights of hunting and fishing in that area and in the larger region of the St. Lawrence river and other rivers, ponds, and streams which this concession breaches, all without any dependency, with all the rights of the seigneury [enjoyed] under the guidance and direction of the Fathers of the Society of Jesus [...]
[And] that the said savages shall be and always will remain under the control, management and protection of the Fathers of the Society of Jesus, without whose advice and consent they can neither deliver, concede, sell, nor alienate the said lands we give, nor allow hunting or fishing to any individual, unless with permission of the said fathers, to whom we give the direction of affairs of the said savages.Footnote 70
Described in this passage is a condition of pre-emption vested in the Society of Jesus, whose reverend fathers had the right to impose significant restrictions on the land rights of the indigenous grantees. Thus, on offer to this community was no liberal bundle of property rights. The grant is explicit that “all rights in the seigneury” enjoyed by the grantees were to be conditional on their relations with missionaries of the Society of Jesus.
Historians of New France have interpreted the Sillery grant a little differently. For the historian George F. G. Stanley, who considers Sillery “the first Indian ‘reserve’ in Canadian history,”Footnote 71 the “wording” of the land grant “makes it quite clear that, unlike the subsequent Indian grants, the lands in this instance were the property of the Indians.”Footnote 72 This requires unpacking. If Stanley's usage of “were” is to inflect the past tense rather than invoke the subjunctive mood, the grant's very opening renders his appraisal questionable: “La compagnie de la Nouvelle-France ayant donné […] dernier aux sauvages […] une lieue de terre”—that is, the company, not the community of Algonquins, Montagnais, and Hurons, was the source of title to this stretch of land. Although Stanley is correct to acknowledge the importance of this grant in terms of “the property of the Indians,” it can be argued that the grant took away more rights than it ever gave. Regardless, however, the unidirectional nature of this grant is clear: land is bequeathed by the Compagnie de la Nouvelle-France unto the indigenous inhabitants and not the other way around. Cognizable property rights here, then, as in the rest of occupied New France under company rule, were founded in an arrangement whereby aboriginal title was not extinguished by conquest or cession, but was rather ignored, by convenience, and replaced with company pre-emption: the exclusive rights of alienation were vested in the company, irrespective of indigenous inhabitation.
Therefore, if the Sillery grant says anything about the “the property of the Indians,” it is that the Compagnie de la Nouvelle-France enjoyed ultimate dominium, not the indigenous inhabitants. Certainly it originated not with the French Crown, as another historian, Louise Dechêne, suggests. Dechêne cites in combination the reproduction of the aforementioned grant in Léon Gérin's study, and a 1656 ordinance of Intendant Jean de Lauson, founding member and director of the Compagnie de la Nouvelle-France, to state that “the monarch conferred seigneuries on the natives.”Footnote 73 Dechêne's reasoning, however, is unclear. If anything, it appears based on a brief salute to King Louis in the grant, which was polite convention at the time, exhibiting loyalty, not land rights. Hard evidence of the Crown's right of ownership to, and by extension capacity to grant any portion of this four-mile stretch of St. Lawrence-fronted land, is difficult to locate in the historical record. It might also be considered that when, from 1660 onwards, parcels of this land were issued to French settlers after the Algonquins, Montagnais, and Hurons failed to exploit its agricultural potential, full seigneurial title was neither conferred through purchase from prior indigenous inhabitants, nor did it require any special endorsement from the King of France. This was company-owned land, administered by Jesuits. Indigenous interests had no place in this equation.
Sillery provides but one example of the land hunger of the missionary project, and there are others. The great merchant city of Montreal, for example, commences its European history with a similar land grant: in 1640, the Société de Notre-Dame de Montreal pour la Conversion des Sauvages received an “outright” grant from the Compagnie de la Nouvelle-France to the seigneury of St. Sulpice, along with the entire island of Montreal (dwarfing the site of old Hochelaga, and attracting the raids of nearby Iroquois).Footnote 74 Here, as in their other early settlements, Jesuits stuck close to the St. Lawrence valley, but expansion was certainly afoot. By the 1650s, the missionary enterprise had exploded onto the Great Lakes: Sainte-Agnes was established on the southern banks of Lake Ontario, and Les Apôtres, Saint-Joseph, Sainte-Élisabeth, Saint-Charles, Saint-Esprite, and Saint-Pierre flanked the shores of Lake Huron.Footnote 75
Therefore, by 1663, the geographical sphere of company influence in New France was not huge but it was certainly significant, and a pattern was well underway. Inside these areas, both settlers and missionaries came to enjoy some kind of rights to land, albeit without acquiring consent from indigenous owners. In that year, the Compagnie de la Nouvelle-France was replaced by royal government, and Crown officials administered the colony for almost 100 years, until the “Conquest of Canada” in 1759 changed the flag that flew over a land occupied without purchase or cession.
Conclusion
Although it exceeds the scope of this article by a hundred years, this “conquest” of 1759 requires brief reflection by way of conclusion, because historians have understood the event in ways that have implications for the pre-1663 period. Sometimes, the actual effects of that famous “scratch of a pen”—the Royal Proclamation of 1763—have been exaggerated.Footnote 76 In any case, it is a generally agreed-upon turning point. Most recently, Alain Beaulieu has argued that it inspired a “new legal rationale” for dispossession. “The French colonial practice, based on the non-recognition of Aboriginal land rights, and the Royal Proclamation of 1763, the symbol par excellence of the recognition of those rights, fused into a syncretic model that coated dispossession without treaties with the varnish of compensation,” he writes.Footnote 77 After this moment, in the French Canadian narrative, occurs dispossession proper; an interpretation conveniently compatible with the consensus among Québecois nationalists that British rule altered the social order of things forever.Footnote 78
Idealistic appraisals of the Royal Proclamation—which see in its clauses a stern acknowledgement of “ancestral rights” and an “Indian interest” in the lands of Québec, reflecting “full possession” of, and even “title” to those lands—are difficult to correlate with the realities of European diplomacy and the sanctity of private property under both old and new regimes.Footnote 79 Just like the lead up to the Treaty of Saint-Germain-en-Laye in 1632, postconflict negotiations in the buildup to the Treaty of Paris in 1763 for the restoration of colonial establishments were not conducted on behalf of indigenous owners. Instead, they were conducted among European diplomats on behalf of colonial interests. Hurons, Algonquins, and Montagnais (and the “disappearing” Iroquois) were not made landlords of the St. Lawrence seigneuries, and made rich from the improvements in urban Montreal, Trois-Riviére, and Québec on the morning of October 8, 1763. Instead, they remained in limbo as ever, until eventually put onto reserves without ever ceding their land; but here we are getting ahead of ourselves.
This analytical overview has offered tentative revisions to the prevailing conceptual framework of New France history, with special reference to the period 1600–63, in response to the offerings of scholars writing from the mid-1970s onwards. These practitioners of juridical history, who blended together select constitutional and common law concepts from aboriginal rights jurisprudence, and poured them back out onto the historical record, produced a unique reading of the past that was not always unproblematic. Too often, the multistep process by which various riverside plots came into the possession of dozens of title-bearing seigneurs and hundreds of censitaires has been overshadowed by a story about a colonial utopia, with traders and indigenous people sharing the common resources of land in blissful coexistence until the dawn of a darker era. But in the spirit of the dispossessed and vengeful seventeenth century Iroquois—whose constant raids on St. Lawrence settlers evidence some kind of “burden,” if nothing else—this article has offered some critical revisions of these misinterpretations.
The practice of terra nullius—whereby settlers acquire title, improve, and alienate, in a colonized region where no purchases, cessions, or conquests take place—was prevalent in New France. This is historical reality; and its serious historiographical implications are easy to identify. As I have shown, a classic justification for installing new property interests on top of existing ones, the logic of vacuum domicilium or “empty lands” (i.e., no one is here, therefore, no treaties or purchases need to be made), has been reversed to inform a seriously erroneous historical interpretation of settlement at the St. Lawrence (i.e., no treaties or purchases were made, therefore, no one was there). This interpretation has appeared in many guises (of which, maybe the narrative of a utopian colonial “middle ground” idea may be cited as one).Footnote 80 Against such interpretations, this article argues that dispossession was a central process in New France history before 1663.
Moreover, this article has suggested that the corporate lens, more so than the monarchic lens, offers the clearer picture of this process. Companies provided the momentum to settlement more than crowns did, and it is to them we must turn if we are to understand the means by which traditional property rights were overrun and replaced with European-inflected systems of land tenure in New France. The Compagnie de la Nouvelle-France, and its corporate predecessors, by magic came to enjoy the exclusive right of land alienation: a right of pre-emption that did not require any acknowledgement of aboriginal property rights to land. These rights were never considered by French newcomers to be a legal “burden” up until 1663, when approximately 3,000 settlers—seigneurs, censitaires, urban merchants, administrative officials, and entrepreneurs—enjoyed full titles to their properties. Crucially, with the regime change in 1663, this land policy became constitutionalized with one simple amendment. “Crown” replaced “Compagnie.” And so it remained through subsequent regime changes in 1759 and 1867, although the Crown in question became British.
