Summary of the Required formalities in Use in Canada for the administration of justice both in the first instance, at the provostship and admiralty courts, as well as for cases on appeal at the Conseil superieur

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To begin with, the lieutenant general of the provostship hears both Civil and Criminal cases, together with the special lieutenant And the king’s prosecutor for both the said provostship and admiralty, the two Jurisdictions being compatible since cases on appeal in both instances come under the jurisdiction of the Conseil supérieur.

Provostship audiences are Generally held every Tuesday and Friday at eight in the morning.

The time allotted for a summons is normally three full days, not including the date on which the writ is issued nor The expiry date.[...]

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[...] Criminal proceedings are also undertaken before the said lieutenant at the request of Either the Civil party or the king’s prosecutor. He grants permission to Inquire into the complaint presented to him & sets the date on which the witnesses are to be summoned; They are heard in the audience chambers or at the Registry, alone with the clerk; he then orders the information to be Communicated to the king’s prosecutor. Based on his Conclusions he calls for a summons against the accused and If he does not Appear He converts the summons into an order to Arrest him. The Accused having been arrested and Led to the gaols as Ordered, he proceeds with the interrogation of the said accused (both the Civil parties and the king’s prosecutor are permitted to supply the judge with questions for the interrogation of the accused). And following this the judge ordains that everything Be communicated to the king’s prosecutor, who states his initial conclusions; If these conclusions suggest the re-examination of the witnesses and their confrontation with the accused, or the release of the Accused, the proceedings are subject to a hearing; all is reviewed and the judge pronounces on it, etcetera. If his decree calls for the

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witnesses to be re-examined and confronted with the accused, then the Civil party or the king’s prosecutor, when the proceedings are carried out at his Request, obtains an ordinance from the judge in order to summon the witnesses heard at the Information to Appear & be confronted with the accused; this ordinance stipulates the day & hour of the Appearance, at which time the judge proceeds with the said re-examination And Confrontation in the Gaol chambers. And ordains that the proceedings be communicated to the king’s prosecutor, who gives his final Conclusions And then the final judgment is pronounced in its ordinary form.

Next the Procureur General appeals to the Conseil supérieur, which pronounces itself based on his Conclusions; it receives the appeal and consequently ordains that the trial be entered in the Registry of the Conseil supérieur by the provostship clerk in Person. And names a Counsellor Reporter for the trial, whose Report is allowed after having been communicated to the said Procureur general: the Registry of the provostship is informed of this decision at the request of the king’s prosecutor.

Once the proceedings have been transmitted to the registry; the clerk provides a receipt and relieves the representative from the provostship; he then takes the proceedings to the counsellor Reporter who gives him a receipt for them, and having Examined the documents, If he finds the trial to be sufficiently conclusive, the proceedings are returned to the registry to be [communicated?] to the Procureur general who gives his initial Conclusions, which tend to be that the defendant be heard and interrogated in court; the information

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received in the first Instance is kept and there is no new hearing, unless the accused makes New declarations or more proof or Clues have been discovered that will lead to the conviction or release of the accused. If this is the case, an Inquest Is called for by the Procureur General if the Civil party does not itself request it following the Interrogation; the proceedings are immediately Communicated to the Procureur General who states his final conclusions in writing, and the complete proceedings are presented during an audience by the Counsellor Reporter, who also makes a written report.

At the audience the president Names an Assistant Counsellor to read the said proceedings to the Conseil supérieur; the accused is sent for in order to be interrogated as required In regards to the fact, then sent back; the Procureur General states his said conclusions, which are frequently sealed and Retires from the Conseil supérieur; it is only in criminal cases that he departs from the Conseil supérieur after having given his conclusions & then returns following the trial judgment, when called by the bailiff; the president counts the Votes and pronounces on the majority, and If the votes are divided, the Conseil supérieur always comes down in favour of the lighter sentence.

When the audience has been concluded the Counsellor Reporter & the bailiff go read the verdict to the accused and the execution is carried out on the same day. [...]

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[...] The gaols serve both for military matters and for Civil and Criminal cases among the bourgeois; they are visited by both the king’s prosecutor and the Procureur General whenever they wish. Prisoners are provided with what they Need at the request of the Procureur General and he has the gaols cleaned and the straw bedding Changed on a monthly basis.

The Procureur General presents the Conseil superieur with such requests & Requisitions as he may make for both the administration of Justice, and the Good of the public.

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The officers of the provostship and of the admiralty are received by the Conseil superieur. When the holder of a Commission wishes to be received, he submits a Request to This end, Regarding which the Procureur General decides on behalf of the king that an inquiry be conducted into the Life, customs and mental Capacity of the holder; the Conseil supérieur acknowledges his Requisition and orders that at his Request the said Inquiry be carried out before a counsellor named by the president; and that the Results of this Inquiry be [communicated?] to the said Procureur General and his Conclusions accepted.

He obtains an ordinance from this counsellor to summon witnesses, who must number at least three, including one Ecclesiastic, who will depose If the holder is of the Catholic apostolic & Roman faith, leads a Christian life and has performed his Easter duties; the other two are usually two practitioners and, if Not, Two Notable bourgeois who depose that they know the holder and deem him Capable of fulfilling the functions under his responsibility. This information is [communicated?] to the Procureur General, who, if he deems it pertinent, provides his Conclusions in writing and below his Notes indicates that he does not object on behalf of the king that the said Someone etcetera be Received by way of ordinary Oath.

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The Reporter makes his Report in the same way as for criminal matters and then the said Someone is brought into the audience chambers and is asked to swear an Oath to fulfil the functions under his responsibility well & faithfully; to act in the king’s interest, to denounce those who prejudice the king's interests inasmuch as he is Aware of them, and to denounce as well all wrongdoers, and those who Disrupt the Peace. He is to conform to the king’s ordinances and ensure that they are followed, and keep secret all that is said & done at the Conseil supérieur. After the counsellor has formally acknowledged his oath, he Receives him & serves him with his responsibilities and if he is to be a counsellor of the Conseil supérieur or a Procureur general he immediately invites him to sit in at an Audience, and if he is to be a procureur general the aforementioned formalities are conducted at the request of He who held the functions previously.

The lieutenant general and special lieutenant as well as the king’s prosecutor are also received by the Conseil supérieur with this difference as regards the lieutenants, that upon being sworn in by the Conseil supérieur, it is ordained that they be Installed in their jurisdiction by the counsellor Reporter during an Audience arranged for this purpose.

The Counsellor makes his way to the audience chambers in the said jurisdiction and with all sitting around the table He

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has a Case brought forward by the court bailiff and having heard the parties he Takes note of the Votes of Both the one who is being Installed and of the other lieutenant, and considers the conclusions of the King’s prosecutor, and then pronounces the Sentence, which he marks in the court minute-book then Retires from the Audience, And the others continue with the audience.

The same is done with the king’s prosecutor with the exception that the counsellor reporter simply makes his way to the audience chambers of the provostship, in order to forthwith deliver and present the king's prosecutor, along with the decision of the Counsellor who Received him, and enjoins the lieutenant general to Install him, which he does in the presence of the counsellor who then retires, following which the king’s prosecutor, according to decorum, seats himself to the left of the said Lieutenant general.

As for the clerks & bailiffs, each Court receives its own and installs the holders of the said offices following an inquiry and an oath sworn as stated above.

The Procureur General can view the Records of the Registry in order to verify that they are in order and, if they are Not, request that they Be attended to. [...]

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[...] All that the Conseil supérieur ordains in the Interests of His Majesty or of the public is always done at the request of the Procureur general and upon his instructions, since it Is He whom the counsellors or others must inform regarding what they know of that which prejudices these same Interests. Etc.

The Conseil supérieur Recesses from the feast of the Epiphany to the first Monday of Lent, from the Monday after Palm Sunday to the Sunday following the feast of Easter, also called Quasimodo, and from the 1st Monday in September to the 1st Monday in October. Some audiences are held during these times, but under extraordinary circumstances. The parties must request it of the president who orders the court bailiff to notify the counsellors of the date the Conseil supérieur will meet, and in such a case the party must pay the said bailiff a sum of ten sols for each counsellor and for the clerk. There is also a charge of ten sols for each Case heard.

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Besides this there are One hundred livres in salaries per year; and the court bailiff of the said Counsellor assumes the functions of bailiff at the provostship.

The clerk has a register that serves as a court minute-book, in which only the names of the parties and the pronouncement of the decisions are written; the president signs only at the end of the audience, with each decision or judgment following one after the other with no space in between.

At the end of an Audience the clerk lists the terms of each decision, inserting the comments of the parties, And taking note of the exhibits; he writes out the decision in full in a separate register and has them both signed Separately by the said president; he must note in the margin the official copies he is issuing.

He is required to have another Register in which to record the edicts, decisions and declarations of the king that are sent to the Conseil supérieur; in the same register he must include the funds for the counsellors and lower ranking court officers, the seigneury concessions granted by his Majesty to individuals along with the Requests they present in order to have them registered.

There is yet another register for recording deeds and donations, etc.
Finally, there is a Register for recording declarations, denunciations and affirmations provided by individuals

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in various court cases, or otherwise. All of the Registers must carry the mark and initials of a Counsellor appointed by the Conseil supérieur at the Request of the Procureur General. Likewise, at his request the Conseil supérieur sets a Tariff for the salaries of the clerk and The said bailiffs, which is registered.

Source: France. Archives nationales, Fonds des Colonies, Série C11A, Correspondance générale, Canada, vol. 5, fol. 148-155v, Inconnu/Unknown, Summary of the required formalities in use in Canada for the administration of justice , ca. 1719.

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