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  Researching the Fortress of Louisbourg National Historic Site of Canada
  Recherche sur la Forteresse-de-Louisbourg Lieu historique national du Canada

The Administration Of Justice At The Fortress Of Louisbourg (1713-1758)

Conseil de Guerre

When a soldier was accused of a crime for which the penalty was either death or the galleys, a Conseil de Guerre had to be called to hear the charges. If the crime was desertion the officer commanding the deserter's company was given 24 hours to request that a Conseil de Guerre be convened, under pain of being broken in rank. If this occurred the major was obliged to make the request, with the same punishment awaiting him if he too proved delinquent. [1]

Presided over by the governor, or in his absence the lieutenant de roi, the Conseil convened at the governor's residence and was composed of officers of the garrison, selected as far as possible by seniority. Seven officers or judges were necessary to try cases "en dernier ressort" (without appeal). Although he presided over the court martial, the governor was not a voting member, and it was the most senior officer who, as first councillor, collected the votes, read the findings and signed the plumitif. [2]

Seniority played an important part in the Conseil's proceedings, principally to ensure that the trials were judged by the most experienced officers who possessed a thorough knowledge of the ordinances of the king. Selection was to be made first from among the garrison's captains. If a sufficient number of captains were not available to serve, subaltern officers were chosen in descending order of seniority. In the event there were still not enough officers on hand to conduct a Conseil de Guerre , and there were no neighbouring garrisons from which additional officers might be summoned, sergeants - again according to seniority -could be called to sit on the Conseil. During the proceedings the most senior officers were to speak first but they were the last to sign the jugement. The seating arrangement had the most senior judge sitting to the right of the governor, who was at the head of the council table. The next senior judge sat opposite the most senior one, and so on down the table. The major, who acted as prosecutor, sat opposite the governor. [3]

Judges kept their hats on while the Conseil was in session. Officers wishing to attend the proceedings as observers stood with their hats off and were to refrain from interfering. Witnesses were to hold themselves ready in the event the judges wished to question them on any point, while the tambour major remained at the governor's door to receive orders when a verdict was reached. Before deciding on the sentence to be imposed all judges were to fast and attend mass in order to receive God's help in deciding the verdict fairly. [4]

If there was a commissaire des guerres attached to the fortified place he was permitted to sit at the governor's left and ensure that the ordinances of the king concerning Conseils de Guerre were followed. He was not to enter into the deliberations unless some violation of the regulations occurred. [5] This role seem to have been filled in Louisbourg by the commissaire-ordonnateur. The few court martial records available include his signature. In 1720 De M4zy charged that the Conseil de Guerre which sentenced a soldier to death for desertion had been composed of officers who were too young to be familiar with the ordinances of the king. In another instance, he alleged that the Conseil de Guerre had been unfair because four of the seven judges were related to the treasurer, at whose door the accused had been on guard when the theft was committed. In both cases the minister upheld the findings of the Conseils, and informed De Mézy that his pretentions in these matters were without foundation. [6] It was the minister's opinion that one could not use too much severity to control the troops and that stern punishment set an example for them, which was of the utmost importance in maintaining good discipline. [7]

In the course of the proceedings of a Conseil de Guerre much paperwork was generated. No code or abbreviations were to be used in the documentation of the case, nor was any space to be left between the lines. Erasures and deletions were to be signed by all involved. Prototypes of the various documents found in a case were provided, allowing the clerk to copy the general outline of the text, adding the appropriate details where necessary. Even some of the witnesses' testimony was according to a prescribed formula, making it difficult to know how much credence to place on what was said. For example, the regulations stipulated that a corporal being questioned about one of his men who was accused of desertion was to be asked if he knew the accused, to which he was supposed to reply "that he knew one ... dit ... for having been a soldier of the ... Company for about ..., that he saw him receive his pay, do the service, pass in review ... "[8] This is precisely the answer given during trials in Louisbourg, making it impossible to be certain that the corporal had actually seen the soldier do any of those things. In fact, one corporal, having given this answer at the outset of the case, stated later, during his confrontation with the accused, that he did not really know the soldier very well at all because while the soldier remained in Louisbourg as part of the guard, he himself spent most of his time away from the fortress. [9]

The deposition of one officer was sufficient to convict a soldier who was actually caught "away from his post" or asleep on duty, but normally the testimony of two witnesses was required for conviction. In cases where there was only one witness in addition to the one "offended party, the complaint should be made by an officier major or other third party.1' To prove the charge of desertion, depositions of a sergeant and a corporal or two corporals and some senior soldiers of the accused's company were sufficient for conviction. Testimony was to be taken from anyone having knowledge of the crime and able to speak for or against the accused. The judges could not refuse to hear any witness whom the accused wished to call "to justify himself." Even children, provided they were over the age of seven, could be called as witnesses. [10]

The steps involved in a Conseil de Guerre called to hear the case against a soldier accused of some military offense included:

• 1. Plainte - to begin the process a statement was addressed to the presiding officer of the Conseil, usually the governor, giving the name of the accused, his date and place of birth, his company and regiment, and the nature of the crime with which he was charged.
    

• 2. Instruction - in order to determine if there was sufficient evidence to try the soldier and gain conviction, statements were received by the judges. Witnesses would be questioned to determine their knowledge of the case. It was to this hearing that the major was to be invited when a soldier was being tried by the civil authorities for a crime against an inhabitant. According to D'Hericourt, the judges during this procedure, were to follow the "spirit of the criminal ordinance; but one does not adhere to the letter scrupulously."
    

• 3. Récoleinent - to give the witnesses the opportunity to correct or expand upon their testimony, their statements were read back to them at this stage. If, later in the trial, a witness changed his testimony in any substantial manner, he was to be treated as a false witness and punished in the same manner as the accused.
    

• 4. Interrogatoire - next the accused would be questioned on the basis of the facts contained in the witnesses' statements, relevant memoires, and items shown in evidence. If the accused did not speak French an interpreter would be provided, and if he were deaf or mute, a curateur would be appointed to act in his behalf. At the conclusion of the interrogation, the responses were read back to the accused so that he might make changes before signing or making his mark on the document. Additional interrogations were permitted as often as the case required.
    

• 5. Confrontation - when the testimony of the accused and the witnesses did not coincide, the soldier was given the opportunity to state "whether he knew them to be good and honorable people, warning him that after the reading of their depositions, nothing further to the reproaches he might propose against them would be received ... " After the soldier answered, the depositions were read again and the accused was obliged to indicate whether or not he agreed with the statements.
    

• 6. Conclusion - taking into account all testimony and related evidence, the judges then reached their decision. Their conclusion was rendered by the major. If the verdict was against the accused, the major usually recommended the maximum penalty stipulated in the ordinances.
    

• 7. Questioning on the sellette - if a guilty verdict was reached, the accused was again brought before the Conseil and made to sit on a sellette (penitence stool) or on a "chaise renversée." The president of the Conseil would ask the soldier if he had any complaints about the judges. If there were a legitimate complaint, the judge in question was obliged to retire from the Conseil and a replacement was named. The accused would again be integated by the judges and asked if he had anything to say on his own behalf. A verdict different from the one read by the major in his conclusions could be reached after this questioning took place.
    

• 8. Jugement - sentencing was done by a vote taken among the seven judges. For certain crimes, such as desertion while on sentry duty, the only penalty was death. For most other offenses, however, there were alternatives. In such cases the less severe penalty was imposed unless the the most severe was favored by a majority of two among the judges. In other words, if a deserter could be sentenced either to death or the galleys and there were- the requisite seven judges, the accused would go to the galleys unless five of the seven voted for his execution; a four/three split not providing the majority of two necessary for the death penalty. If there were three possible penalties - for example death, galleys or prison - and the vote was three for death, two for the galleys and two for prison, the accused would again go to the galleys because, while the votes for lesser penalties outnumbered those for the death penalty, the most severe penalties (galleys and death together) outnumbered the least severe penalty, imprisonment. Regardless of how the judges split in their vote on the sentence, the final jugement was to be signed by all, making it unanimous. [11]

[Endnotes: Conseils de Guerre 1 D'Hericourt, Elemens De L'Art Militaire, Vol. 2, pp. 209, 211, 235; Côde Militaire, Vol. 1, p. 165; Diderot et D'Alembert, Encyclopédie ..., Tome 4, p. 11; 2 D'Hericourt, Elemens De L'Art Militaire, Vol. 2, p. 228; Côde Militaire, Vol. 1, pp. 291-93; Diderot et D'Alembert, Encyclopédie ..., Tome 4, p. 11; A.N., Colonies, C11B, Vol. 5, fols. 78-99v., 22 août 1720; 3 D'Hericourt, Elemens De L'Art Militaire, Vol. 2, pp. 228-29; 4 Ibid., pp. 229-30; 5 Ibid., p. 229; Côde Militaire, Vol. 1, pp. 291-92; 6 A.N., Colonies, C11B, Vol. 5, fols. 78-99v., 22 août 1720; ibid., Vol. 7, fols. 78-93, 18 octobre 1724; ibid., Vol. 6, fols. 79-96v., 7 juillet 1722; ibid., Vol. 17, fols. 296-315, 24 octobre 1736; 7 A.N., Colonies, B, Vol. 48-2, fols. 964-65, 25 juillet 1725; ibid., Vol. 74, fol. 579v., 11 juin 1742; 8 D'Hericourt, Elemens De L'Art Militaire, Vol. 2, fols. 213-17, 220-22. Original quote: "qu'il connoît le nomme ... dit ... pour avoir ete Soldat de la Compagnie ... depuis environ ... qu'il l'a vû recevoir Le prêt, faire le service, passer en revue ..."; 9 A.N., Colonies, C11B, Vol. 7, fols. 78-93, 18 octobre 1724; 10 D'Hericourt, Elémens De L'Art Militaire, Vol. 2, p. 214. Original quotes: "hors son poste"; "offense, il est a propos de faire porter la plainte par un Officier Major ou autre tiers"; "pour sa justification"; 11 Ibid., pp. 210-32; Côde Militaire, Vol. 1, pp. 291-96. Original quotes: "l'esprit de l'ordonnance criminelle; mais on ne s'attache pas scrupuleusement à la Lettre"; "s'il les connoît pour gens d'honneur et de bien, l'avertissant qu'après la lecture de leurs depositions, il ne sera plus reçu aux reproches qu'il pourroit proposer contre eux ... "]

[Source: Margaret Fortier, Fortress Security and Military Justice at Louisbourg, 1720-45,  Unpublished Report H E 14 (Fortress of Louisbourg, 1980), pp. 57-62.]