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The Custom of Paris as practised in New France during the French government

The Custom of Paris (French: Coutume de Paris) was a collection of non-written and non-codified laws accepted and respected by the people of France and New France. First codified in 1507 in the city of Paris, the Custom of Paris became the main source of law throughout New France in 1664 under Article 33 of the decree by the King of France, Louis XIV. Later, the customary law was replaced by the Civil Code of Lower Canada in 1866 which incorporated English Law into its existing legal framework.

Origins

The Custom of Paris was created in the middle of the 15th century after the Hundred Years' War ravaged France and its political and social structures. In 1454, King Charles VII of France decided to transform the custom within the kingdom from non-written, oral laws to written ones. This provided state officials and members of parliament with greater opportunities and capabilities in improving the justice system. Later, the Custom of Paris was employed in New France despite a poor enforcement mechanism by the state. There, it lasted from 1608 to 1664 and included legal definitions of property rights, inheritance procedures and creditor rights.

Structure of the Custom in New France

The Coutume de Paris was divided into sixteen titles concerning family and inheritance, property, and debt recovery. As in other areas of the French colony, the Catholic Church played a major role in the formation of these laws as many derived from Catholic moral regulations.

Under the rule of the monarch, property was owned by the seigneur. Residents were required to pay their seigneur what was called cens et rentes. As well as paying a fixed amount of money (the cens), they also had to pay rentes, in the form of manual labour, a portion of agricultural production, or through other kinds of non-monetary goods. Lods et ventes was another mandatory payment, equivalent to one twelfth of the sales price. After a 1686 royal edict, the banalité was introduced, whereby the seigneur held a monopoly over mills, water power, fishing and hunting in his seigneury.

Under marital law of the Coutume, when a husband and wife were married, they owned the land in common under the communauté de biens. When one spouse passed away, the other, regardless of gender, was entitled to the land. The husband held managerial authority over the wife, but could not alienate his wife’s assets. Property or other fixed assets purchased prior to marriage or inherited remained personal property (propres). If the husband were to die first, the wife could claim a douaire, provided she had not been accused of adultery, did not live “scandalously” in her year of mourning, and did not remarry beneath her social standing (a stipulation relating to the Catholic Church). The douaire was a fixed amount, above the normal inheritance, but it disallowed the widow to claim property rights. If they had children, each child, again, regardless of gender, was entitled to a portion of the family’s assets. This could take the form of a portion or all of the land, money, or goods. If a couple decided to favour a particular child, they had to do so with the consent of the other heirs. Children were considered adults at the age of twenty-five. They could not be disinherited, as long as they did not marry against their parent’s will, or leave the Catholic Church. The nobility had different rules of inheritance than non-nobility. Nobles did not have to divide their inheritance equally; rather, the eldest son received the title as well as a large portion of the land.

Debts and commercial transactions were heavily influenced by Church law because notaries were prohibited from charging interest, a form of usury. The only way to obtain interest on debts was through a court order. If no payment was made within a given amount of time, the creditor could either seize the debtors moveable goods (saisie execution) that would be auctioned off if the debtor did not pay in eight days. The creditor could hire a commissioner to take hold of the real estate (saisie réelle); or goods and money could be kept by a third party until a judicial ruling was made concerning their disposal (saisie arrêt).

Realities of the Custom for the People of New France

Although the Coutume de Paris provided strict procedures for handling inheritance, households would often turn to additional safeguards to protect their assets, especially in the colony's early years. For example, for the first colonists with no kin ties outside of the marriage community, were their partner to pass intestate, the deceased spouse's half of the marriage community would fall to the seigneurs. Thus, marriage contracts could be written with a clause wherein all real estate and moveable property would fall as a gift, most often in the form of a donation, to the surviving spouse were his or her partner to pass. These clauses were embedded in marriage contracts despite the fact that such donations were prohibited by the Coutume de Paris. Moreover, those of higher rank would commonly include another safeguard, known as the préciput; this guaranteed the surviving spouse the right to an amount before the estate was divided for inheritance purposes.

Furthermore, the donations inter vivos, as included in the Coutume de Paris, were often drawn up by parents not to favour one heir over another, but to essentially exchange more of their assets to one child for support of the parents in their old age. These were primarily family agreements, involving all heirs, and were drawn up to provide for elderly parents of the family who could no longer manage their own upkeep.