Possession and Dispossession in Corporate New France, 1600–1663: Debunking a “Juridical History” and Revisiting

Terra Nullius

EDWARD CAVANAGH

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.

Law and History Review February 2014, Vol. 32, No. 1 © the American Society for Legal History, Inc. 2014 doi:10.1017/S0738248013000679

Edward Cavanagh is the Osgoode Society’s R. Roy McMurty Fellow in Canadian Legal History, and the Ontario Trillium Foundation Scholar, at the University of Ottawa <edwardcav@gmail.com>. He thanks Helen Dewar and Allan Greer, experts in this area, for providing some of their research before publication, and also Rich Connors, Jan Grabowski, Élizabeth Pigeon, and the anonymous reviewers from Law and History Review for their criticisms. All mistakes of interpretation and translation are the author’s own.

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.1

His approach, akin to HenryReynolds’s (and others’), is to regard terra nul- lius more as a convention of settler colonialism than as a coherent legal doc- trine, used to explain the process of dispossession rather than the legal justifications behind that process.2 Used in this fashion, terra nullius fits French Canada, although critics note that this approach is doctrinally unfaith- ful and potentially misleading. Lauren Benton and Benjamin Straumann con- vey 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 nine- teenth 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).3 Jumping two

1. Stuart Banner, “Why Terra Nullius? Anthropology and Property Law in Early Australia,” Law and History Review 23 (2005): 95–131, quote at 95. 2. Henry Reynolds, The Law of the Land (Ringwood: Penguin, 1987); and Stuart Banner,

Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Harvard: Harvard University Press, 2007). 3. Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Roman

Doctrine to Early Modern European Practice,” Law and History Review 28 (2010): 1–38, quote at 2.

Law and History Review, February 201498

centuries forward to return to colonial Australia, other scholars sensitive to jur- istic thought and intellectual history argue that terra nullius was barely con- templated, if at all, during the first century of occupation.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 nulliuswere 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 colo- nizing 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 method- ologies, 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.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 coher- ent 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.

4. For this debate, see Reynolds, Law of the Land; Bain Attwood, “The Law of the Land or the Law of the Land? History, Law and Narrative in a Settler Society,” History Compass 2 (2004): 1–30; Michael Connor, The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation of Australia (Paddington: Macleay Press, 2005); and Andrew Fitzmaurice, “The Genealogy of Terra Nullius,” Australian Historical Studies 38 (2005): 1–15. 5. The most concerted attempt to purchase land by an individual settler (on behalf of the

Port Phillip Association) was promptly admonished by the Sydney administration. See Bain Attwood, Possession: Batman’s Treaty and the Matter of History (Carlton: Miegunyah Press, 2009).

Possession and Dispossession in Corporate New France, 1600–1663 99

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.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 nulliuswas practiced in early New France—a ques- tion 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.7 Elsewhere, in a compelling article in American Historical Review, Greer compares how settlers “cre- ated new forms of tenure and wrested control of lands from indigenous

6. Banner, “Why Terra Nullius,” 131. The point here is to encourage a greater awareness of the means by which terra nullius is historicised. Take Canada, for example: despite the often massive lengths of time between original seizures of territory on the one hand, and extinguishing treaty programs on the other (properly underway in the 1870s and carrying up to the present day), few historians or lawyers are prepared to consider that part or all of Canada was ever terra nullius. For another example, the Cape Province of South Africa: even though aboriginal title, with the exception of Table Bay, was not extinguished in the lead-up to drastic regime changes in 1795, 1961, and 1994, few in the post-apartheid era are prepared to consider it terra nullius. From the opposite point of view, it would be remarkable to consider Australia a place where Aborigines have enjoyed cognizable owner- ship rights from “time immemorial” in light of the Mabo decision, handed down 200 years after convicts first disembarked the First Fleet. 7. Allan Greer, “Dispossession in a Commercial Idiom: From Indian Deeds to Land

Cession Treaties,” in Contested Spaces of Early America, eds. Juliana Barr and Edward Countryman (Philadelphia: University of Pennsylvania Press, 2014 [forthcoming]).

Law and History Review, February 2014100

peoples,” and in doing so, he presents a novel narrative of dispossession in which “indigenous commons” clash with settler commons before their ulti- mate destruction by enclosure and improvement.8 This approach is comple- mented 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 1663.9

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 interpret- ations 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 his- tory,” or “advocacy history”): a body of historical scholarship designed to connect with the concerns of lawyers and the aboriginal claimants they rep- resented.10 These authors often meant well, but their pragmatic method- ologies 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 anachro- nistically and/or spatially understood.11 Recent contributions, many in

8. Allan Greer, “Commons and Enclosure in the Colonization of North America,” American Historical Review 117 (2012): 365–86, quote at 365. 9. Helen Dewar, “Souveraineté dans les Colonies, Souveraineté en Métropole: Le Role de

la Nouvelle–France dans la Consolidation de l’Autorité Maritime en France, 1620–1628,” Revue d’Histoire de l’Amérique Française 64, 3–4 (2011): 63–92. 10. In Canada, as in other settler societies where a similar claims-based indigenous rights

jurisprudence has emerged, public interest litigation of the 1960s and 1970s inspired what some refer to as “juridical history.” For further reflection on this development, see Paul G. McHugh, “The Common-Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past,” Saskatchewan Law Review 61 (1998): 393–429; Ian Hunter, “Natural Law, Historiography, and Aboriginal Sovereignty,” Legal History 11 (2007): 137–67. 11. The rights to seabeds and airspaces, and likewise the privilege of Arctic ownership,

continue to puzzle legal thinkers. For an introduction to some of these debates, see

Possession and Dispossession in Corporate New France, 1600–1663 101

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.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 superimpos- ing European systems of property relations on top of indigenous ones across the world, this article focuses, instead, on the procedures and con- ventions 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 com- panies 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 devastat- ing ways than did the Latin substance of the legal canon, irrespective of which title deeds were drawn up and which improvements were made.

Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400– 1900 (Cambridge: Cambridge University Press, 2010); Stuart Banner, Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On (Cambridge, MA: Harvard University Press, 2008); and Michael Beyers, Who Owns the Arctic? Understanding Sovereignty Disputes in the North (Vancouver: Douglas and McIntyre, 2009). 12. Benton, A Search for Sovereignty. In this argument about jurisdiction across “irregular

zones,” law itself is determined as much by geography as it is by cultures and conflict; sover- eignty did not just emanate from metropolitan imperial powerhouses during this period, but rather it was “layered” across contested mountains, valleys, rivers, and seabeds. This kind of interpretation encourages a new skepticism toward defining sovereignty institutionally (i.e., state/non-state) and ethnocentrically (i.e., European/non-European), not just geopolitically. However, see Janice E. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994), which addresses similar concerns, but maintains a strict state/non-state division throughout.

Law and History Review, February 2014102

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 cul- ture. 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 governmental- ity; no less than a “Company-State.”13 Companies, following Stern, war- rant 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 transna- tional corporate entities for human rights abuses across the globe and on the seas.14

With these and other concerns found in a thriving legal-historical litera- ture on imperialism in mind, this article seeks to explore what exactly we

13. Philip J. Stern, The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India (Oxford and New York: Oxford University Press, 2011). As for the Atlantic companies, “they came from the same stock; they were cor- porate bodies politic, founded in charters, letters, patents, and instruments of incorporation but functioning as political authorities and communities in their own right.” Philip J. Stern, “British Asia and British Atlantic: Comparisons and Connections,” William and Mary Quarterly 63 (2006): 702. See also Edward Cavanagh, “A Company with Sovereignty and Subjects of its Own? The Case of the Hudson’s Bay Company, 1670–1763,” Canadian Journal of Law and Society 26 (2011): 25–50. 14. This literature is extensive. For an introduction to issues relevant to indigenous

rights specifically, consult Jérémie Gilbert, “Corporate Accountability and Indigenous Peoples: Prospects and Limitations of the US Alien Tort Claims Act,” International Journal on Minority and Group Rights 19 (2012): 25–52; Brian C. Hosmer, “Indigenous Communities, Nation–States, Extranational Sovereignties and the Challenge of Environmental Justice in the Age of Globalization,” Environmental Justice 5 (2012): 264–69; and Suzana Sawyer and Edmund Terence Gomez (eds), The Politics of Resource Extraction: Indigenous Peoples, Multinational Corporations and the State (Basingstoke: Palgrave Macmillan, 2012).

Possession and Dispossession in Corporate New France, 1600–1663 103

know about Franco–aboriginal diplomacy in early Canada, during a period when sovereignty was layered, and companies more than crowns estab- lished the status quo. How was property created, and how were rights acknowledged on the ground? Emancipated from the litigational method- ology of juridical history, with an eye on other settler colonial locales in Atlantic and Pacific worlds, I explore the historiography and excavate rel- evant 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 extinguish- ing 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 consoli- dated 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, compa- nies 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, con- fusing 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 insti- tute European-colonial tenure,” because the introduction of “feudal tenure left ample room for native possession in most areas.”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

15. Greer, “Dispossession in a Commercial Idiom.”

Law and History Review, February 2014104

and 1603.”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 empti- ness 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).17 Others interpret similarly. Legal scho- lar, 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 settle- ment,” which for him is grounds to insist that French and Indian enjoyed “good relations.”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 settle- ments 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.19

From the outset, it is interesting to note that here (among many other examples in the juridical historiography of New France), the construct

16. Bruce Trigger, The Children of Aataentsic: A History of the Huron People to 1660 (Montreal: McGill–Queen’s University Press, 1988), 1:214. 17. W. J. Eccles, “Sovereignty–Association, 1500–1763,” Canadian Historical Review,

65 (1984): 480. 18. Brian Slattery, “Understanding Aboriginal Rights,” Canadian Bar Review 66 (1987):

769. 19. Cornelius J. Jaenen, “French Sovereignty and Native Nationhood during the French

Regime,” Native Studies Review 2 (1986): 84.

Possession and Dispossession in Corporate New France, 1600–1663 105

“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.20 Putting aside the accidental invocation of an Enlightenment-style ethnocentricism (as seeing semino- madic 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.21 There is a discriminatory logic subtly at work in historical arguments of this kind, because the dis- tinction 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 occu- pancy 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 epidemiologi- cal 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 necessi- tated by seasonal migrations, demographic fluctuations, and intertribal hos- tility across a great part of northeastern North America during the period in question. Were such concerns to accompany their research, it would have

20. This is certainly signalled by the title of Jaenen’s article (“French Sovereignty and Native Nationhood”). This inequality of interpretation also manifests in his definition of property, which relates not a “bundle of rights” but an idiosyncratic and restrictive reading of European ideas that are neither distinctly French civil nor distinctly English common (Jaenen, “French Sovereignty,” 103). 21. See also Slattery, “Understanding Aboriginal Rights,” 768–69; and Cornelius J.

Jaenen, The French Relationship with the Native Peoples of New France and Acadia (Ottawa: Research Branch, Indian and Northern Affairs Canada, 1984), esp. 41–47.

Law and History Review, February 2014106

been more difficult to suggest that any part of this territory was “not inhab- ited” 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 defer- ring 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 newco- mers. 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).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 his- tory 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 centu- ries than some historians suggest (especially in the first generations of European settlement when chartered companies were usually the

22. Reuben Gold Thwaites, ed. The Jesuit Relations and Allied Documents, 1610–1791, (Cleveland: Burrows Brothers, 1896–1901), 46:1–23; 47:21–25. (Hereafter: JR, with page numbers referring to originals). See also below, note 74.

Possession and Dispossession in Corporate New France, 1600–1663 107

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,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 doc- trine) 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.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.”25

23. Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Harvard University Press, 2005). See also Banner, Possessing the Pacific, com- prising perhaps the best attempt to explain why specific land policies were implemented in different sites. A complementary appraisal can be found in John C. Weaver, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal and Kingston: McGill– Queens University Press, 2003). 24. Brian Slattery, “French Claims in North America, 1500–1559,” Canadian Historical

Review 59 (1978): 167 25. Slattery, “French Claims,” 168. See also Brian Slattery, The Land Rights of Indigenous

Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories (Saskatoon: University of Saskatchewan Native Law Centre, 1979), 90–91.

Law and History Review, February 2014108

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 sover- eignty and independence).26 Also, given that there were no significant settle- ments and combined with this a decided lack of European interest in regions that far north before 1600, little reason, therefore, existed yet to bother ratio- nalizing 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.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.28

26. For example, Slattery, “French Claims’; Eccles, “Sovereignty–Association,” 475 n1; Jaenen, “French Sovereignty,” 98; Lloyd I. Barber, “Indian Land Claims and Rights,” in Les Facettes de l’Identite Amerinidienne/The Patterns of Amerindian Identity, ed. Marc Adelard Tremblay (Québec: Presses de l’Université Laval, 1975), 67; and Luc Huppé, “L’Établissement de la Souveraineté Européenne au Canada,” Les Cahiers de Droit 50 (2009): 153–206. 27. For the doctrine of discovery, see Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and

Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford and New York: Oxford University Press, 2010). For an introduction to the literature on symbolic acts of possession, compare Arthur S. Keller, Oliver J. Lissitzyn, Frederick J. Mann, Creation of Rights of Sovereignty through Symbolic Acts, 1400–1800 (New York: Columbia University Press, 1938); Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640 (Cambridge: Cambridge University Press, 1995); and Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (Cambridge: Cambridge University Press, 2006). 28. Slattery, Land Rights, 66–124; see below, note 40.

Possession and Dispossession in Corporate New France, 1600–1663 109

This is straightforward enough; perhaps, however, this could all move further away from the monarchocentric perspective of discovery and con- quest, 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 his- torians of the English Atlantic29—to suggest that the Crown’s direct impor- tance 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.”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 sponsor- ship. 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.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.32 Charters, com- missions, letters patent, and other similar royal instructions were issued to establish guidelines for subjects of the realm of the issuing monarch; sub- jects of other sovereigns, whether “infidel” or Christian, had minimal (if any) obligation to acknowledge the concessions contained within these

29. For perhaps the most persuasive argument about dispossession from the metropolitan/ monarchic perspective, consult Macmillan, Sovereignty and Possession. 30. Bruce Trigger, Natives and Newcomers: Canada’s “Heroic Age” Reconsidered

(Montreal and Kingston: McGill–Queens University Press, 1985). 31. Henry Percival Biggar, The Early Trading Companies of New France: A Contribution

to the History of Commerce and Discovery in North America (Toronto: University of Toronto Library, 1901). 32. Eccles, “Sovereignty–Association,” 479, 481.

Law and History Review, February 2014110

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.33 France itself had argued as much to Spain in 1540 regarding the expeditions of Jacques Cartier,34 as did England in 1580 regarding Francis Drake.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 resol- ution.36 In the end, both parties walked away with the idea that actual

33. For the Treaty of Tordesillas in its global context, consult Lauren Benton, “Possessing Empire: Iberian Claims and Interpolity Law,” in Native Claims: Indigenous Law against Empire, 1500–1920, ed. Saliha Belmessous (Oxford: Oxford University Press, 2012), 19– 40. Benton suggests that a concern with possession (as a means to securing dominium) figured prominently in Spanish and Portuguese ideologies of empire in this period. For Benton, “historians have exaggerated the idiosyncratic nature of Iberian legal rationales for the acquisition of empire as centering on arguments about papal authority, a preoccupa- tion with rights to people, or assertions about a right to trade based on natural law” (35). 34. Henri de Montmorency bluntly justified his King’s opinion to the Spanish ambassador

as follows: “to uninhabited lands, although discovered, anyone may go.” Emperor to the Cardinal of Toledo (November 11–13, 1540), in A Collection of Documents Relating to Jacques Cartier and the Sieur de Roberval, ed. Henry Percival Biggar (Ottawa: Public Archives of Canada, 1930), 141. 35. Judicial thinker and diplomat Robert Beale, referring to the bulls, put it this way: “So

as this donation of that which is anothers, which in right is nothing worth, and this imaginary propriety, cannot let, but that other Princes may trade in those Countries, and without breach of the Law of Nations, transport Colonies thither, where the Spaniards inhabite not, foras- much as prescription without possession is little worth, and may also freely navigate that case Ocean, seeing the use of the Sea and Ayre is common to all. Neither can any title to the Ocean belong to any people, or private man; forasmuch as neither Nature, nor regard of the publicke use permitteth any possession thereof.” Quoted in Richard Tuck, The Rights of War and Peace: Political Thought and the International Order (Oxford and New York: Oxford University Press, 1999), 112. 36. Argall’s crackdown on competing royal letterheads is fascinating, but dominium was

not the main issue here. The key distinction to be observed here is between land and prize. Immovable land was always treated differently from booty, and sensibly too, given the different challenges in terms of logistics, value, and jurisdiction posed by each. Speaking generally, whereas pirates, like competing traders, sometimes produced letters of marque and commissions to escape prosecution for stealing reserves, razing posts, and claiming a fleet’s cargo as prize, these documents empowered no privateer to claim disputed lands in

Possession and Dispossession in Corporate New France, 1600–1663 111

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.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 owner- ship 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),38 but in all such instances, the recognition of these rights was nego- tiated and never mandatory. Charters then carried no weight in inter- national 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.39 Charters alone were not all that strong. The fanfare of postwar negotiations con- ducted 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

the names of monarchs, or excavate great chunks of earth (and, with designs of profit in mind, it is unlikely they would be inspired to anyway). See Lauren Benton, Search for Sovereignty, 112–20; and Lauren Benton, “Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism,” Comparative Studies in Society and History 47 (2005): 700–24. 37. Macmillan, Sovereignty and Possession, 194–200. 38. For the impact of these treaties on French sovereignty in the New World, see Huppé,

“L’Établissement de la Souveraineté,” 179–84. 39. D. W. Prowse, A History of Newfoundland from the English, Colonial, and Foreign

Records (London and New York: Macmillan, 1895), 99–100.

Law and History Review, February 2014112

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 ima- gine on that basis, as some have, that these clauses hold the key to unlock- ing the secrets of aboriginal title and European “effective control” is untenable.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 pur- pose of establishing trade in their territories.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 compa- nies. 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 1601.42 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

40. Contra Slattery, for whom “[t]he French Crown thus implicitly asserts title to the entire eastern sector of North America” in the 1627 charter: Slattery, Land Rights, 85–86. This would appear to contradict, if not require serious qualification as a result of, his observations regarding aboriginal title and French rule in his later article, “Understanding Aboriginal Rights,” 768–69. 41. Relevant extracts from commissions and letters patent between 1598 and 1603 are

reproduced in Camil Girard and Édith Gagné, “Première Alliance Interculturelle: Recontre entre Montagnais et Français à Tadoussac en 1603,” Recherches Amérindiennes au Québec 25 (1995): 10–11. For the Compagnie de la Nouvelle–France charter of April 29, 1627, consult Edits, Ordonnances Royaux, Declarations et Arrêts du Conseil d’État du Roi Concernant le Canada (Québec: E. R. Fréchette, 1854): 5–11. 42. Biggar, Early Trading Companies, 43–4.

Possession and Dispossession in Corporate New France, 1600–1663 113

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.”43

In spite of the deficiency of Champlain’s account, historians have taken this treaty very seriously. For Camil Girard and Édith Gagné, this “alli- ance” was the first treaty to reflect what they consider to be a more asser- tive French approach to New World territories.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 auth- orization to inhabit the country,” he writes. “There was no stealing [land] from the indigene.”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.”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 wit- nesses, 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 terri- torial 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.47 Here was

43. Samuel de Champlain, Oeuvres de Champlain, 2nd ed., ed. C.-H Laverdière (Québec: Imprimé au Séminaire, 1870), 2:71. Anadabijou had learned this about the French King from discussions with his representatives whom François Gravé du Pont had earlier sent to Paris. See Elsie McLeod Jury, “Anadabijou,” Dictionary of Canadian Biography, http://www.bio- graphi.ca/009004-119.01-e.php?BioId=34142 (May 21, 2013). 44. Girard and Gagné, “Première Alliance Interculturelle,” 3. 45. Marcel Trudel, The Beginnings of New France, 1524–1663, trans. Patricia Claxton

(Toronto: McClelland and Stewart, 1973), 76; and Marcel Trudel, Histoire de la Nouvelle–France: Les Vaines Tentatives, 1524–1603 (Montreal: Fides, 1963), 268. 46. Olive Dickason, Canada’s First Nations (Norman: University of Oklahoma Press,

1992), 103. 47. Eccles, “Sovereignty–Association,” 480; Andrée Lajoie and Pierre Verville, “Les

Traités d’Alliance entre les Français et Les Premières Nations sous le Régime Français,” in Andrée Lajoie, Jean-Maurice Brisson, Sylvio Normand, and Alain Bissonnette, eds. Le Statut Juridique des Peuples Autochtones au Québec et le Pluralisme (Québec: Les

Law and History Review, February 2014114

a peace arrangement between a merchant mapmaker and an indigenous lea- der; 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.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).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?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

Editions Yvon Blais Inc., 1996), 161. For these authors, “the French” sought to acquire, in this alliance, the permission to construct an establishment at Tadoussac in 1603,” a strategy that would eventually extend “to Québec in 1608.” 48. Eccles, “Sovereignty–Association,” 480. 49. John Locke, The Second Treatise of Civil Government, ch. 5, sect. 27; and Weaver,

Great Land Rush, esp. 46–48, 81–87, 216–26, 348–60. 50. Trudel, Beginnings of New France, 164.

Possession and Dispossession in Corporate New France, 1600–1663 115

the property, and therefore the responsibility, of the new company [i.e. Compagnie du Canada],”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 chan- ged since the days of Samuel Argall.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 1668.53

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 court- ing with indigenous peoples; rather, what it entailed was crying foul to other Europeans.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.”55 This observation appears to apply historically, with eth- nocentric 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

51. Trigger, Children of Aataentsic, 1:286. 52. Francis Gardiner Davenport, ed. European Treaties Bearing on the History of the

United States and its Dependencies, (Washington, DC: Carnegie Institution, 1917–37), 1:315–23. See for context, Biggar, Early Trading Companies, 148–66. For the initial grant of Port Royal to Poutrincourt in 1604, see Trudel, Beginning of New France, 85. 53. European Treaties Bearing on the History of the United States and its Dependencies

2:132–42. See, for context, Slattery, Land Rights, 126–32. 54. As the seventeenth century became the eighteenth, England and France tussled among

themselves and both sought to bolster their claims, to the detriment of Algonquian and Iroquoian communities. England had been experimenting with this method since the early seventeenth century, as Ken MacMillan has shown, and by the mid-eighteenth, she had just started to perfect it. France emulated. As Jaenen notes, formal claims to land in New France during the period of royal government “appear to have been directed more at European competitors than at Amerindians who were theoretically becoming French sub- jects.” Such was the state of play in Québec after the period of company rule and during the period of royal administration from 1663 to 1759. Jaenen, “French Sovereignty,” 96; and MacMillan, Sovereignty and Possession. 55. Carol M. Rose, “Economic Claims and the Challenges of New Property,” in Property

in Question: Value Transformation in the Global Economy, ed. Katherine Verdery and Caroline Humphrey (Oxford: Berg, 2004), 279.

Law and History Review, February 2014116

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 sum- mer of 1608, and subsequently thereafter, during his brief Indiana Jones-like adventures upriver into the lands of fur-bearing Algonquians and hostile Iroquois.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 ven- tured on several excursions, forming peace alliances with many Algonquian communities who were encouraged to trade at Tadoussac and Québec.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 alli- ance, for the purpose of “making peace.”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 com- menced again.59 It would not be until 1653 that the Iroquois would commit to peace again with company-ruled New France, during Lauson’s govern- ance; 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.60 Historian George T. Hunt, writing in 1940, was correct to empha- size 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).61 Aboriginal land rights were

56. Trigger, Children of Aatentsic, vol. 1, chapter 5. 57. Biggar, Early Trading Companies, 90–100; Trigger, Children of Aatentsic, 1:

296–305. 58. Oeuvres de Champlain, 5:1064. 59. Biggar, Early Trading Companies, 129. 60. Trigger, Natives and Newcomers, 276–81. 61. George T. Hunt, The Wars of the Iroquois: A Study in Intertribal Relations (Madison:

University of Wisconsin Press, 1972 [1940]), 23–37, 66–86. See also Francis Jennings, The Ambiguous Iroquois Empire: The Covenant Chain Confederation of Indian Tribes with English Colonies from its Beginnings to the Lancaster Treaty of 1744 (New York: Norton, 1984); Trigger, Natives and Newcomers; Daniel K. Richter, The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era of European Colonization

Possession and Dispossession in Corporate New France, 1600–1663 117

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.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 agree- ment 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.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.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.65 All grants were made without

(Chapel Hill: University of North Carolina Press, 1992); and José António Brandão, “Your Fyre Shall Burn No More”: Iroquois Policy Toward New France and Its Native Allies to 1701 (Lincoln: University of Nebraska Press, 1997). 62. Rameau de Saint–Père, Une Colonie Féodale en Amérique L’Acadie (1604–1881)

(Montréal: Granger Frères, 1889), 1:51; and Trudel, Beginnings of New France, 85. 63. Oeuvres de Champlain, 5:729–30. 64. Biggar, Early Trading Companies, 105; and Trigger, Natives and Newcomers, 324. 65. Richard Colebrook Harris, The Seigneurial System in Early Canada: A Geographical

Study (Kingston and Montreal: McGill–Queens University Press, 1984), 20–25.

Law and History Review, February 2014118

purchasing land from the Montagnais or the Huron, and coincidentally, they inspired the violent defiance of local Iroquois.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.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.68

Thankfully for Jesuit priests, the religious substance of the missionary project did not require indigenous individuals to renounce their sover- eignty; 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 establish- ment was Sillery, one of the earliest missionary enterprises in the early period. Conceived in the 1630s as a place away from Québec for

66. These Iroquois were mostly identified as Mohawks, although sometimes Oneida and Onondaga. Perhaps it is worth speculating whether or not these “raiders” had old links to Stadacona and Hochelaga. 67. JR, 29:47–60, 31:56–144. 68. Nicholas Perrot, Memoire sur les Moeurs, Coustumes et Relligion des Sauvages de

l’Amerique Septentrionale, ed. R. J. Tailhan (Leipzig and Paris: Librairie A. Franck, 1864), 94–95. There is some doubt about the nomenclature of Perrot’s account, who suggests the priest was Father Allemand and that the chief in question went by the name of “La Borgne.” Trigger, rather, suggests the chief was Tessouat, and both he and Eccles suggest the priest was Father Ragueneau and not Allemand. See Trigger, Children of Aataentsic, 2:785; and Eccles, “Sovereignty–Association,” 499, n108.

Possession and Dispossession in Corporate New France, 1600–1663 119

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.69

The terms of the land transfer, dated July 1651, require our attention:

The Compagnie de la Nouvelle-France has given […] the savages […] a lea- gue 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 lea- gues deep, into the woods or in the lands to the north, with all rights of hunt- ing 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 with- out 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.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 expli- cit that “all rights in the seigneury” enjoyed by the grantees were to be con- ditional on their relations with missionaries of the Society of Jesus. Historians of New France have interpreted the Sillery grant a little dif-

ferently. For the historian George F. G. Stanley, who considers Sillery “the first Indian ‘reserve’ in Canadian history,”71 the “wording” of the land grant “makes it quite clear that, unlike the subsequent Indian grants,

69. JR, 6: 35–43. 70. “Lettres Patentes qui Confirment la Concession de Sillery aux Savages,” in Les

Jésuites et la Nouvelle–France aux XVIIe Siècle, d’Apres Beaucoup de Documents Inédits, ed. Le Camille de Rochemonteix (Paris: Letouzey et Ané, 1895), 1:467, 468–69. See also Léon Gérin, “La Seigneurie de Sillery et les Hurons de Lorette,” Des Memoires de la Societe Royale du Canada 6, 1 (2nd series, 1900): 83–84. 71. George F. G. Stanley, “The First Indian “Reserves” in Canada,” Revue d’Histoire de

l’Amérique Française 4 (1950): 185. For Stanley, French Canada was settled like terra nul- lius: “At no time was there any recognition on the part of the French crown of any aboriginal proprietary rights in the soil. The French settler occupied his lands in Canada without any thought of compensating the native. There were no formal surrenders from the Indians, no negotiations, and no treaties such as marked the Indian policy of the British period” (209).

Law and History Review, February 2014120

the lands in this instance were the property of the Indians.”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 com- pany, 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 ulti- mate 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.”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 endorse- ment from the King of France. This was company-owned land, adminis- tered by Jesuits. Indigenous interests had no place in this equation.

72. Stanley, “First Indian ‘Reserves’,” 184. 73. Louise Dechêne, Habitants and Merchants in Seventeenth–Century Montreal

(Montreal and Kingston: McGill–Queen’s University Press, 1992 [1974 ]), 11.

Possession and Dispossession in Corporate New France, 1600–1663 121

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).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.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 “con- quest” of 1759 requires brief reflection by way of conclusion, because his- torians have understood the event in ways that have implications for the pre-1663 period. Sometimes, the actual effects of that famous “scratch of

74. Between 1642 and 1653, the Society de Notre–Dame spent a fortune on indentured laborers to clear the land, which brought it close to bankruptcy. According to Trudel, how- ever, the initial failure of this church establishment is attributable to two factors: “the instability of the backers of this new enterprise, and the incursions of the Iroquois” (190). Only from the late 1650s did private interests emerge, slowly instigating its transformation into a site of settlement and merchant capital. But this was before a violent Iroquois attack on habitants in 1661, in which “even the women fought to the death” against their indigenous enemies. Trudel, Beginnings of New France, 188–89. The best study of seventeenth century Montreal, however, remains Dechêne, Habitants and Merchants. 75. See map at Cole Harris, The Reluctant Land: Society, Space, and Environment in

Canada before Confederation (Vancouver: UBC Press, 2009), 94.

Law and History Review, February 2014122

a pen”—the Royal Proclamation of 1763—have been exaggerated.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 dis- possession. “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.77 After this moment, in the French Canadian narrative, occurs dispossession proper; an interpretation conveniently com- patible with the consensus among Québecois nationalists that British rule altered the social order of things forever.78

76. The Royal Proclamation of 1763, and associated instructions issued to Governor Murray, have been identified as a source of aboriginal title Québec; for some, these offer proof that indigenous communities retained sovereignty over and title to the whole region, and that their independence remained strong enough to endure well into the nineteenth cen- tury. See, for example, Jaenen, “French Sovereignty,” 105; Eccles, “Sovereignty– Association,” 505–6, 510; Michel Morin, L’usurpation de la Souveraineté Autochtone: Le Cas de Peuples de la Nouvelle–France et des Colonies Anglaises de l’Amerique du Nord (Montreal: Boreal, 1997), esp. 61, 138–39; and Brian Slattery, “The Hidden Constitution: Aboriginal Rights in Canada,” American Journal of Comparative Law 32 (1984): 370, 373. For an overview of “juridical history” interpretations of the “Murray Document,” see Denis Vaugeois, The Last French and Indian War: An Inquiry into a Safe–Conduct Issued in 1760 that Acquired the Value of a Treaty in 1990, trans. Kathe Roth (Kingston and Montréal: McGill–Queens University Press, 2002), 127–69; and Alain Beaulieu, “‘An Equitable Right to be Compensated’: The Dispossession of the Aboriginal Peoples of Québec and the Emergence of a New Legal Rationale (1760–1860),” Canadian Historical Review 94 (2013): 2–11. The quoted phrase comes from Colin G. Calloway, The Scratch of a Pen: 1763 and the Transformation of America (Oxford: Oxford University Press, 2006). 77. Beaulieu, “An Equitable Right to be Compensated,” 27. 78. This may partially explain why it has taken so long for the historiography of New

France to shake off the inaccuracies of the “juridical history” school: placid Franco– Aboriginal encounters suit conventional narratives of “la thèse décapitation” (the decapi- tation thesis). This thesis first breathed life with the nineteenth century claim that the removal of organic ruling classes, and their replacement with a foreign and more powerful bourgeoi- sie, subordinated French society within a regime not of its own making. It would be devel- oped in the 1950s by historians such as Guy Frégault, Michel Brunet and Maurice Séguin, with important precursors in Francis Xavier–Garneau and Abbé Lionel–Groulx. As an idea, it has influenced the studies of subjects as diverse as women’s history (e.g., Jan Noël, “New France: Les Femmes Favorisées,” Atlantis 6 [1981]: 80–98) and demographic and emigra- tion history (e.g. Leslie Choquette, Frenchmen into Peasants: Tradition and Modernity in the Peopling of French Canada [Boston: Harvard University Press, 1997]). Aboriginal his- tory has not escaped: the decision, in 2004, to restrict the Chaire de Recherche du Canada sur la Question Territoriale Autochtone at Berri–UQAM to the period following 1759 represents perhaps the most stunning example of this. See their web site, http://www.territoireautoch- tone.uqam.ca/ (February 1, 2013).

Possession and Dispossession in Corporate New France, 1600–1663 123

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 diplo- macy and the sanctity of private property under both old and new regimes.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 censi- taires has been overshadowed by a story about a colonial utopia, with tra- ders 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 con- stant 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 con- quests 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

79. See above, footnote 76.

Law and History Review, February 2014124

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).80 Against such interpretations, this article argues that dispossession was a central process in New France his- tory 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 acknowl- edgement 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 mer- chants, 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.

80. See, especially, Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (Cambridge and New York: Cambridge University Press, 1991).

Possession and Dispossession in Corporate New France, 1600–1663 125

Copyright of Law & History Review is the property of Cambridge University Press and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s express written permission. However, users may print, download, or email articles for individual use.