Bailliage (Royal Court) 

By the 1730s Louisbourg had become established as a major fishing and trade center on the North Atlantic. The colony's population (excluding Ile Saint Jean) had grown to over 4,000 people by 1737. The commercial and demographic expansion increased the amount of litigation brought before the Superior Council, and led French officials to inaugurate one of the three royal courts forecast in the edict of 1717. The bailliage was empowered to hear in the first instance all civil and criminal matters within Louisbourg, except for maritime suits. Outside the town the subdelegates, appointed by the ordonnateur and the Admiralty, continued to judge cases within their respective jurisdictions unless the settlers chose the more costly alternative of carrying their suits to the capital. After the French returned to Ile Royale in 1749 the Ministry reduced the judicial establishment by attributing the functions of the royal court to the Admiralty because there had always been many cross-appointments between the bodies in the past.

The royal court was structured in a way similar to the Superior Council, although there was only one presiding judge (bailli). Below him were a king's proctor, court clerk, and usher. Two men requested the post of judge in 1734, de Goutins and Lartigue, but the latter received the appointment. When Lartigue died nine years later he was replaced by Hertel de Cournoyer, who never received a commission. Initially, there was no salary attached to the position of magistrate other than the 300 livres Lartigue drew as a member of the Superior Council. As the Admiralty tried the more lucrative commercial cases, the royal judge was left with rendering justice "a des pauvres habitants, a quelques ouviers et à Beaucoup des gens au Service d'auberge dont les différents doivent etre réglées sommairement sans frais."

The royal court sat at the home of the presiding judge. It followed the same laws and procedures as the Superior Council. Civil suits naturally varied with the nature of the individual action, but procedure in criminal trials was outlined in the royal ordinance of 1670. During the ancien regime, criminal justice was expedited and careful attention was paid to documenting meticulously each stage in the proceedings. More than one judgement from Louisbourg's inexperienced courts was rejected by the king's council or the Ministry of Marine on these grounds. The form of criminal trial differed little from Quebec or the mother country except that Louisbourg had no marshalcy, and either the court ushers or colonial regulars arrested suspected parties.

The salient features of criminal justice during the French period were as follows. When the court received word that a crime had been committed the presiding judge registered the complaint, and the court clerk recorded this and all later proceedings. The judge went to the scene of the crime to make an investigation and prepare a report. If a suspect had not been apprehended at the time, the king's proctor secretly conducted further inquiries and separately questioned witnesses under oath. If the-proctor concluded that the evidence warranted an arrest, he asked the judge to order the arrest of the suspect. The usher then stopped the accused, prepared a report, and left one copy with the prisoner. If property were seized, an inventory was prepared, and the two closest neighbours signed it. After imprisonment, the judge was required to begin interrogation within 24 hours, but only after he had administered an oath to the suspect. If the court clerk failed to record the taking of the oath, proceedings were quashed. When more than one individual was accused, each was questioned separately. Judicial procedure was allowed for the confrontation of the suspects with each other or their accuser, when evidence conflicted. In a capital case, the judge could order the prisoner be put to torture (question preparatoire) if he had good reason to believe that not all the evidence had surfaced, or if the accused had not confessed. The form of torture was clearly stated, and the prisoner could not be condemned to death if he did not confess during the ordeal. But if a capital verdict were rendered, and the guilty party had not named his accomplices, he could again be submitted to torture (question préalable). Depending on its intensity, torture was either ordinaire or extraordinaire. The most common method in Canada was to affix boards to the legs of the prisoner, insert wedges, then strike with either a hammer or a mallet. All death sentences were appealed automatically to a higher court. When the Louisbourg Superior Council acted as a trial court, appeals were carried to the king's council, but after the beginning of the royal court, the Superior Council was itself the appellate division. After appeal, sentences were usually executed the same day.

At every stage in both civil and criminal proceedings, the officers of the royal court were permitted to charge fees for the preparation of the numerous documents required by the law. Fee schedules were sanctioned by the Superior Council during the king's pleasure. Justice was not cheap for complicated civil suits nor even criminal cases, although civil matters involving less than 200 livres that were judged summarily cost only 3 livres paid to the clerk. For civil inquiries, the magistrate received a livre for each witness questioned and six for the sitting. The king's proctor was paid two livres, and the clerk charged for each documents. If the court were required to go outside the town the judge was paid 16 livres a day, the proctor 12, the clerk eight, and the usher four. Although no money was exchanged when criminal proceedings were initiated, dues were collected at every turn thereafter. For example, when the court moved to the scene of the crime for a preliminary investigation', the magistrate was paid six livres, the proctor four, and the clerk two and a half. Even the jailor charged for the release of prisoners. Although four livres was the officially recognized sum, Louisbourg's jailors were reputed to have charged more than three times that amount on occasion. The high cost of royal justice was shown in one long criminal trial that extended over a month. The clerk extracted 200 livres, the usher 40, and the hangman 90. That left the complainant only 90 livres 5 sols because the property of the convicted brought only 429 livres 5 sols when it was auctioned.

[Source: Ken Donovan, Clerks, Notaries and Support Staff in Ile Royale: A Manual for Interpreters, Unpublished Report O C 62 (Fortress of Louisbourg, May, 1986), pp. 13-16]

Joseph Lartigue, fisherman, merchant, councillor, judge, born circa 1683 in the province of Armagnac, France; died 28 May 1743 at Louisbourg, Ile Royale (Cape Breton Island) ... After acquiring some legal experience as a clerk from 1715, he was appointed a councillor in the Conseil Supérieur in 1723 and keeper of the colony's seals in 1731. In 1734 he became the first (and only) judge of the Louisbourg bailliff court on the recommendation of the governor, Saint-Ovide, and the financial commissary, Sébastien-François-Ange Le Normant de Mézy, who described him, perhaps a little flatteringly, as a "very steady fellow, honest and straightforward." ...[1]

Two men requested the post of judge in 1734, de Goutins and Lartigue, but the latter received the appointment. When Lartigue died nine years later he was replaced by Hertel de Cournoyer, who never received a commission. Initially, there was no salary attached to the position of magistrate other than the 300 livres Lartigue drew as a member of the Superior Council. [2] 

... The basic features of criminal justice during the French period were as follows. When the court received word that a crime had, been committed, the presiding judge registered the complaint, and the court clerk recorded this and all later proceedings. The judge went to the scene of the crime to make an investigation and prepare a report. If a suspect had not been apprehended at the time, the King's proctor secretly conducted further inquiries and separately questioned witnesses under oath. If the proctor concluded that the evidence warranted an arrest, he asked the judge to order the arrest of the suspect. The usher then stopped the accused, prepared a report, and left one copy with the prisoner. If property were seized, an inventory was prepared, and the two closest neighbours signed it. After imprisonment, the judge was required to begin interrogation within 24 hours, but only after he had administered an oath to the supect. If the court clerk failed to record the taking of the oath, proceedings were quashed. When more than one individual was accused, each was questioned separately. Judicial procedure also allowed for the confrontation of the suspects with each other or their accuser, when evidence conflicted.[3]

[Source: [1] Ken Donovan, The Lartigue Property: A Manual for Animators and Interpreters, Unpublished Report O C 70 (Fortress of Louisbourg, May, 1988); [2] Ken Donovan, Clerks, Notaries and Support Staff in Ile Royale: A Manual for Interpreters, Unpublished Report O C 62 (Fortress of Louisbourg, May, 1986), p. 14; 3 Donovan, The Lartigue property ...]

The Local Context

... Since the Bailliage was not created in Ile Royale until 1734 (the Admiralty had existed since 1717), the Superior Council served as the basic court until that time, but it left routine functions ... to the ordononnateur, the chief civil administrator whose responsibilities included the administration of justice ... The bailli or judge and the Lieutenant General of the Admiralty each had the authority and the supporting staff to order and administer judicial [matters] ... Each held regular sittings in his own home, where there was little room for an audience other than court officials, the disputing parties and others with a direct interest in the case at hand ... [Source: Christopher Moore, "Public Auctions in Louisbourg," (February, 1977) in Christopher Moore, Second Draft Report, Contract Research 1977, Unpublished Report H F 39 R (Fortress of Louisbourg, 1977)

Bailliage