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Formerly published by GlobalGazette.ca
Article Published June 23, 2000
Vital Records in the Province of Quebec - Part II - Laws, Customs and Practices
By Xenia Stanford
Click here if you missed Part I
One of the reasons it is difficult for those who are not familiar with Quebec to find relevant records is that the laws of this province are different from those of other provinces and other English based systems. This is not surprising before the English conquest or even before the Confederation of Canada. However, to this day Quebec has had separate and unique laws affecting the handling of vital and other records.
Generally there are four types of law to consider when looking for legal documents including vital records. These are civil law (laws of the state or secular government that applies to human rights and duties), common law (rules or practices based on custom, tradition and precedence), criminal law (also called penal law as it pertains to punishable offences against the public or social order) and canon or ecclesiastical law (codes governing religious practices of a church). There are other systems, such as military and/or naval law, that may apply during certain circumstances as well.
(N.B. Although I briefly studied law, I am not a lawyer nor qualified in any other way to give legal advice. The discussion of law in this article is only offered to benefit family historians in finding and understanding records of genealogical significance to them.)
CHURCH AND STATE
Prior to European settlements in North America, church (canon) and state laws (i.e. secular or non-religious laws) were one and the same or had equal weight in the countries from which the settlers came. Thus the development of the civil legal system and the common laws of a country were influenced by the practices of the church to which they were allied during the development of these laws. The combination of civil and church laws creates common law or the customary practices determining what are right rules of conduct in a society.
Thus common law is so called because it is not a single act of Parliament but the total of judicial decisions and commonly accepted rules of conduct regarding property, inheritance, marriage and other general human behaviour. The judicial decisions form a basis for civil conduct based on legal code and precedence but this is not all that governs our lives. Judicial decisions and acceptable practices are affected by the traditional or customary code of conduct based the canon laws of the primary religion of the culture. Thus religious practices are almost as much the foundation of civil and common law as are the rules of the state. By the same token civil laws often directly affect the religion, such as we find when the rulers of France mandated how the parish priests would record baptisms, marriages and burials.
The customary or common laws of England and France had divergence evolutionary paths. Although the foundation of English common law was the French practices brought to England by William the Conqueror of Normandy in 1066, it further evolved and developed through the edicts of British kings and courts and through English customs and legal precedence. One of the major of these regal influences was Henry VIII, who broke off relations with the Pope over the King's request for a divorce from Katherine of Aragon. Henry established the "Anglican" religion, i.e. Church of England, and declared himself head of it in 1534. Thus the changes in what was acceptable Christian practice for those in England and the countries she conquered changed with the influence of evolving Anglican Church practices and beliefs. Those countries settled or conquered by the English for the most part base their systems on English common law.
Meanwhile France maintained a close relationship between ruler and Pope until the post-revolutionary First French Republic in 1792, which was a decade after the last of their North American holdings, including Quebec, were lost to the English and Americans. As one would expect, those areas settled by the French either followed or were influenced by French customs and Roman Catholic canon laws. The French systems were based on the French equivalent of English common law, which before the French Revolution was called "Coutume de Paris" or Customs of Paris.
In 1790 the French Revolution overthrew the monarchy and began its drastic changes. This First French Republic wanted to replace practices they believe were based on monarchist and superstitious practices. It revised the government and divided the country into new administrative districts. A new system of measures and The French Republican Calendar were invented. Major changes to civil and church law, thus to common law as well, were made. Civil registration of all vital statistics began though registration has never been centralized.
Many of the reforms established by this government were reversed by Napoleon who rejected the French Republican Calendar and, of course, re-established the monarchy when he had himself crowned "Emperor of France". He also realigned to the Church of Rome though he revised some practices especially those regarding marriage annulment. Much of what Napoleon reverted to was based on the former Coutume de Paris. However, Napoleon kept the metric system and other reforms of the French Republic. He also established new rules and to ensure the populace knew what was now acceptable and what was not, in 1800 he appointed a commission of jurors to combine all French laws into one code. In 1804 the same year Napoleon took the title Emperor, the new Code Napoléon went into effect.
This was the code that Quebec used in developing its Civil Code in 1866. However, the code was not accepted in total and even the Napoleonic Code has been amended over time, as are all legal systems and common practices.
NORTH AMERICAN EXCEPTIONS TO ENGLISH COMMON LAW
It is strange though that Quebec used the civil code of France when by this time Quebec had been a part of a country under English rule for over 100 years. It wasn't that the French in Canada was used to the Code Napoléon because the Quebec was legally ceded to England in the Treaty of Paris in 1763, over 40 years before the Napoleonic Code was devised in France. Perhaps it is not so strange that the French wished to maintain their cultural and legal roots rather than accept English common law. However, it would have made more sense historically if Quebec had maintained the French common law or old Custom of Paris in their new civil code since this had been part of their culture since 1663.
Quebec is not the only jurisdiction in North America to choose to follow the Napoleonic Code. Louisiana in the United States also uses this French set of laws as the basis of their civil code.
Although Quebec and Louisiana share similarities in their history and culture since both chose the Napoleonic Code as the foundation of their civil system, they have followed different paths in history and evolved differently. Therefore, what applies in this article to Quebec law, since this is our focus, may or may not apply to Louisiana law.
One might expect that Louisiana would be influenced by Quebec culture with an influx of Acadians when the French were deported from Acadia. However, though the original roots were from the same country in the beginning, the development of Quebec was unique from Acadia and Acadia from Quebec. Thus what is claimed about vital statistics and other records in this article does not necessarily apply to Acadia.
Another misconception might be since Quebec partially used the Napoleonic Code, it might have accepted all the same systems as established in France including full civil registration and the same methods of collecting records. However, Quebec did not accept all parts of French law and we must remember that France has evolved and amended their laws since 1804 and even since 1866. Therefore, not only can we not draw inferences from current French methods to Quebec law, we cannot assume this article defines current French laws. The purpose here is to understand the unique development of Quebec law and how this affects the finding and interpretation of vital records in this jurisdiction.
Luckily, it is often easy to find vital records as many priests and other individuals or organizations have undertaken the collecting and indexing of vital records for Quebec and former French parishes in northeastern United States. Still we must be wary about how these records could be misinterpreted if English practices or cultural philosophies are applied when trying to understand these records.
Also when the indexed resources are exhausted or it is necessary to verify results using alternative sources, one may puzzle over where to look for the primary or original records. If it is assumed these vital records are recorded in the manner and located in the same types of places as records of other North American jurisdictions, the search can be long and fruitless.
EVOLUTION OF FRENCH LAW IN THE AREA NOW CALLED QUEBEC
So how did Quebec develop its unique system of government and law and how does this affect how we find and understand the records throughout time? To answer this we must follow the history as it pertains to law and how the changing laws impacted records.
There are several eras that can be separated for our study. The following is a summary of the laws and significant events affecting records in each period:
2. Struggles to settle and survive: 1604 to 1662. New France was not administered in the manner of France. France already had established a system of recording vital statistics through parish registers but New France did not maintain a similar system until 1621. Records prior to 1621 may be found in letters, contracts, explorers' logbooks or letters and journals kept by priests (compiled as "Jesuits Relations"). After 1621 Catholic parish registers exist. In 1627 a law was passed forbidding non-Catholics to settle in New France. Notarial records also began to be kept in the colony for marriage contracts, wills, property settlements and other uncontested civil contracts.
A unique and separate type of government under the Company of One Hundred Associates was started in 1627 to help settle this foreign land. The Company had barely begun their efforts when England took over possession the colony briefly from 1629-1632 and 60 of the 80 French people returned to France. After the return of the territory to France, efforts were made once again to encourage settlement. Thus the Company of 100 Associates in 1634 started a seigniorial system granting land to "sieurs" or "seigneurs" which they were responsible for settling with families from France. This land system continued until 1854.
3. The Royal Colony: 1663 to 1759. New France was declared a Royal Colony in 1663 and subject to the "Coutume de Paris" (Custom of Paris) but another unique government structure replaced much, but not all, of the previous system devised by the Company of 100 Associates. The Sovereign Council was formed with at three administrative districts: Quebec (city), Trois-Rivieres and Montreal. Later these administrative districts developed Palais de Justice. Notarial records were kept by the notary but deposited after his death in the archives of one of the three administration districts (i.e. the one in which the notary practiced). 1674 Code Louis in France required priests to make duplicate copies of records. In 1679 New France began to comply with this requirement: one copy kept in parish and one copy sent to the Palais de Justice in prothonotarial districts. Between 1736-1746 France added new requirements for parish records. Acadians deported in 1755. Defeat of Quebec by English in 1759 on Plains of Abraham. Defeat of Montreal in 1760.
4. The Province of Quebec from 1760-1790. After the English conquest and the Royal Proclamation of 1763 in which France ceded the area to England, the area formerly known as New France and sometimes as Canada was referred to as "the Government of the Province of Quebec". The Quebec Act of 1774 formally changed it to "The Province of Quebec". Under the terms of the agreement the French in Quebec were guaranteed certain rights and freedoms such as retaining their system of civil law but counties and English criminal law were introduced. Churches were still responsible for vital records and sending second copies of the parish registers to the prothonotarial districts. Protestants were allowed to settle and register their vital statistics in church record books starting with Anglicans in 1760 and other Protestant groups in 1779.
5. The Beginning of Two Canadas: 1791-1839 sees Province of Quebec divided into Lower Canada for the French (Quebec) & Upper Canada for English and growing United Empire Loyalist population. Census and other records show this as L.C. for Lower Canada or C. F. for Canada French or F.C. for French Canada and U.C. for Upper Canada or C.E. for Canada English (confusing as you will see from later name Canada East for French portion) or E.C. for English Canada. Also "Eng." or "Fr." was used instead of E. or F. as abbreviations for these two regions.
Both Canadas had own assembly and lieutenant governor. Upper Canada rejected Quebec civil law and accepted English common law as basis of their system. The county system was introduced for both Canadas in 1792. However, Lower Canada records still went to prothonotarial districts but the districts and the counties did not exactly match - several counties were in one district but the borders of a county were not always in one district. Counties also changed over time. Thus the county system is still of limited help in determining where to look for French Catholic records. Also now some past records for former French areas are in Upper Canada. Some of these end up in National Archives of Canada or Ontario Public Archives.
6. United & Divided: 1840-1866 The Union Act united "the Canadas" for one year before it was again divided into Canada East (now Quebec) abbreviated C.E. and Canada West (now Ontario) abbreviated C.W. (This name should not be confused with the provinces or area we now informally call "western Canada".) Canada East continued church registration of vital records but enacted Civil Code of Lower Canada "inspired by" Napoleonic Code.
During the 1790s the French Revolution had occurred and changed the Custom of Paris into new laws, government, system of measures, calendar and civil registration (took it out of hands of the church). Since Canada was under British control during this period there was little impact in Quebec. Following the First French Republic Napoleon took over and returned to Custom of Paris with amendments (though he left system of measures and civil registration intact). His new "customs" and civil code was enacted in 1804 and became known as Code Napoléon or the Napoleonic Code. Both Quebec and Louisiana used it as basis of their later civil codes even though both were no longer under French dominion.
7. Dominion of Canada: 1867-1925. The Dominion of Canada was created with four provinces: Quebec, Ontario, New Brunswick and Nova Scotia. Another 6 provinces join Confederation from then until 1949. Vital records in Quebec still maintained by churches and duplicates sent to prothonotarial districts.
8. Quebec Begins Civil Registration. 1926-1993. Quebec allowed municipalities to register births in 1926 and marriages in 1970. Churches continued to register these and were still the only means of obtaining death certificate. Copies were still sent to The Palais or Ministere de Justice in the prothotonotarial district in the jurisdiction into which the parish or town fell. Nine regional archives called "Archive Nationales due Quebec" were started for the collection of records older than 100 years and records older than 100 years were transferred from the Palais de Justice and moved to the Archives Nationales in the appropriate region. There were 40 Palais at this time so several districts' records were sent to one of the nine archives. Again it was not possible to keep all county boundaries together. Confusion over what was kept where was increased. Divorces were made easier to obtain after 1970. Quebec begins work on new Civil Code, which was enacted in 1991 but did not fully come into effect until 1994.
9. Full civil registration: 1994 to present. "Civil Code of Québec" replaces the "Civil Code of Lower Canada". Now all registration for births, marriages and deaths are the full responsibility of the "Etat Civil". All records after 1900 moved from the Palais de Justice (i.e. from prothonotarial districts) to one of two regions: Quebec and Montreal. These records are closed to the public except to qualified individuals who can obtain them from "Directeur de l'etat civil" in one of the two cities. If sent to the wrong office, it will be referred to the correct one. The plan is to sometime in the future combine into one registry for current vital statistics. Those requesting copies must know exact dates and locations (religion & parish) of vital event for records before 1994. Any records before 1900 that were still located in the prothonotarial offices were moved to one of nine regional "Archives Nationale du Québec" (Quebec's National Archives) and available on limited basis (clerk can spend no longer than 20 minutes per request). The Palais de Justice or prothotonotarial offices were closed after the transfer of records.
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