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Justice
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Researching the Fortress of Louisbourg National Historic Site of
Canada The Administration Of Justice At The Fortress Of Louisbourg (1713-1758) Superior Council The Louisbourg Superior Council was the high court of the colony. It was solely a court of law with little administrative responsibility apart from exercising some of the duties accorded the parlements in France. French officials ordered the governor and ordonnateur not to allow the court to meddle in official business. All judicial officers of the Superior Council, including its own staff, were required to swear an oath before the court by which they promised to perform their duties faithfully and uphold the laws. Their commissions were registered by the court clerk in the same way that he recorded all other temporary or royal commissions. The Superior Council also acted as a court of record for various commercial agreements and contracts. As well, it approved fee schedules for judicial officers and other royal officials such as the surveyor, while awaiting the king's pleasure. The jurisdiction of the Superior Council was not unlimited. After the creation of the royal court in 1734, it became solely an appellate body although it could not hear appeals on decisions rendered by the ordonnateurs or his subdelegates. The Custom of Paris was the only code of civil law permitted in Québec or Louisbourg, but the Superior Council also judged cases on the basis of royal regulations and local custom, particularly in cases pertaining to the fishing industry. Judicial procedure in both civil and criminal cases was outlined in the royal ordinances of 1667 and 1670. A quorum of three councillors was needed to hear civil suits, while five councillors were required for criminal trials. Appeals could be carried from the Superior Council to the king's council in France where they were sometimes re-directed to the high court of Quebec. The Superior Council was composed of local officials and members appointed by the king on the recommendation of the governor and ordonnateur. Support personnel prepared cases for their consideration and kept records, but the support staff was neither large nor experienced with the law. Initially it consisted only of a general proctor, clerk, and usher, although the clerk was later given an assistant, and a second usher was added. Beginning in 1731, one of the councillors was appointed keeper of the seals. This official was permitted to charge 30 to 40 sols for every document to which he affixed the secL1 of the court. Joseph Lartigue, Guillaume Delort, and André Carrerot were the favoured individuals who came to hold this sinecure. Of the regular staff, the general proctor was the most important since he was the heart and conscience of the court. In the modern Canadian judicial system, there is no equivalent for the general proctor. He combined the roles of attorney general, Crown prosecutor, and public defender. As lawyers were banned from New France because the Crown considered them the source of too much costly litigation, the general proctor investigated criminal charges or civil matters that interested the Crown, church, or minors, and prepared a report for the court. He noted how the law applied to the case, established the guilt or innocence of the parties involved, and recommended the course he thought the court should adopt. However, the Superior Council was not bound to follow his conclusions. The general proctor was concerned with the law he enforced and that justice be rendered impartially. As a court administrator, he also examined the certificates of lower judicial officials before they were received by the Superior Council, supervised the conduct of the king's proctors of the inferior courts, and received the royal edicts that French official s ordered the Superior Council to register. The general well-being of prisoners was entrusted to the proctor. He was given a salary of 400 livres and did not charge fees. The duties of the other judicial officials were less discretionary than were those of the general proctor. The clerk and his assistant were not paid a salary. They charged fees approved by the Superior Council for their services in recording and registering documents. Although they were forbidden to charge money for poor inhabitants unable to pay, their fees were quite high by standards of the day. For registering the commissions of captains and majors, they received six livres; below that rank, three livres. When delivering the judgements of the court they charged from two to seven livres, depending on the value of the case. In preparing an inventory of an estate, and at the subsequent sale, they were paid one sol for each number listed. For burials, the charge was four livres inside the town, and eight outside. Money was also received for registering ships, land concessions, and royal ordinances. In 1738 the clerk, Jean La Borde, made 200 livres solely for fulfilling this last duty. The court's records were kept at the clerk's home or on rented premises until all the offices were brought together in the ordonnateur's residence in 1755. The usher (huissier of the Superior Council did more than stand at the door of the council chamber. Today he might be called a bailiff because he served writs, delivered verdicts, posted notices, and supplied the food and straw for prisoners awaiting their trials. Like the clerk, the usher was royally commissioned and swore an oath of office. Originally, there was only one usher, but the general proctor maintained that a second was needed to arouse the members of the court at seven in the morning prior to Mass, and to light the fire in chambers and prepare the table. This second appointment was made in 1725, and thereafter one usher stood at the door of the courtroom during sessions,, while the other was placed with those waiting for trial in order to prevent disruption among them. [12] [Endnotes: 12. The section on Clerks and Support Staff in the Administration of Justice has been exerpted from T. A. Crowley, "Government and Interests", pp. 317-366. ] [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. 11-13]  Superior
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