Inherited Empire: Civil Law and Custom in “New France” after 1763

Julia Lewandoski is a PhD student in the  Department of History, University of California, Berkeley and a Mellon/ACLS Dissertation Fellow, who tweets @JuliaLewandoski.

Adam Nadeau is a PhD Candidate at the University of New Brunswick.

Andrew Dyrli Hermeling is a PhD student at Lehigh University. He also serves as the project manager of the Digital Harrisburg Initiative at Messiah College and is the producer of The Way of Improvement Leads Home podcast.

The Docket is pleased to present revised versions of a slate of papers delivered at the Omohundro Institute for Early American History and Culture annual meeting on June 16, 2018. As Julia Lewandoski and Adam Nadeau argue, the transfer of political sovereignty over colonial territory from France to Great Britain under the Treaty of Paris in 1763 did not result in a clean or immediate transition. Rather, “the challenges of governing vast new territories, and forging relationships with indigenous peoples and former French subjects alike, prompted British authorities to extent French Civil Law and political custom well into their era of rule.” These essays, by Lewandoski, Nadeau, and Drew Hermeling, explore the causes and consequences of this carryover, particularly with regard to the territorial claims and treaty obligations between colonial rulers and indigenous peoples.

Adam Nadeau: French Civil Law and the Endurance of Viceregalism in Quebec and the Upper Country, 1763-1774

On February 10, 1763, the Treaty of Paris that ended the Seven Years’ War between Britain, France, and Spain ceded to the former the French province of Canada in the St. Lawrence River valley along with its vast interior stretching beyond the Great Lakes to the confluence of the Ohio and Mississippi rivers.

Richard Short, A View of the Church of Notre-Dame-de-la-Victoire after Bombardment (1761). Library and Archives Canada

The treaty confirmed the British conquest of Canada of 1759–60 and added to Britain’s American empire a country more than twelve times the size of the immediate realm of England, a feat not even Robert Clive’s conquest of Bengal five years later could rival in sheer scale. Many British Americans rejoiced at the reduction of Canada, “that American Carthage,” as Boston minister Samuel Cooper called it,”[1] believing it to be an indication of divine providence that Britons were to inherit the American continent. The cession of the Upper Country, or pays d’en haut, of the Ohio and Illinois river valleys especially represented for British Americans the potential for the expansion of colonial settlement and agriculture to “the happiness of posterity.”[2] A “vast continent” now lay open to British Americans, the Highlander Robert Kirkwood wrote. “The country is fertile and level and capable of being made as fine a settlement as any I have seen,” Indian agent George Croghan observed, and it “might be peopled with ease and advantage to [its] possessors,” Kirkwood added.[3]

But exactly how British officials would administer government to the ceded French territory was not immediately apparent. Firstly, there was the question of what right, if any, the conquest of Canada gave Britain to the Upper Country. British forces had only made it as far west as Niagara and Fort Duquesne before Canada was surrendered. The French still held Detroit, and Michilimackinac fell into Ottawa hands after the French garrison there fled into Louisiana following the fall of Montreal. The issue was further confounded by the additional question of whether or not the Upper Country during the French regime had been under the jurisdiction of the province of Canada or that of Louisiana. At the capitulation of Montreal, Frederick Haldimand had sought to demarcate the limits of the province of Canada “with the greatest accuracy possible,” and he and the marquis de Vaudreuil had marked a line on a map following the Illinois River to the confluence of the Mississippi and the Ohio.[4] This was the boundary eventually conceded to by the duc de Choiseul at the peace table in Paris, the territory within which was ceded to Britain with the “full right[s]” of “sovereignty, property, [and] possession.”[5] Yet the indigenous inhabitants of the Upper Country were confused by the European transfer of their lands and maintained that since “they were never conquered by any nation,” as Croghan reported, “the French had no right to give away their country.”[6]

British policymakers, moreover, were also in a bind regarding what systems of law and governance should prevail in Canada. During the early 1760s, a number of Anglo-Americans had moved into the new British province of Quebec with the understanding, guaranteed by royal proclamation, that they would enjoy the full benefit of the laws of England, including the right to be governed by an elected assembly.[7] The Articles of Capitulation of Quebec, however, had promised that Canadians would “be preserved in the possession of their houses, goods, effects, and privileges,”[8] and the contemporary Law of Nations dictated that in order for a conquered people to be preserved in their properties, recourse must be given to their own system of private law. Thus the military governor of Montreal, Thomas Gage, rightfully concluded “that in conquered countries, the laws of such countries subsist till it shall please the conqueror to give them new laws,”[9] while at Quebec, James Murray ensured inhabitants free use of their laws and customs provided they were “not inimical to the king’s service.”[10]

British officials’ understanding of their role as the conquerors of Canada was consistent with Blackstone’s contemporary explication of conquest as “no more than acquisition” of a foreign territory,[11] a mere “change of sovereignty” from one crown to another, as attorney general Edward Thurlow put it to the House of Commons in 1774.[12] As Gage and Murray properly understood things, the legitimacy of the British regime in Quebec rested on the persistence of French law in the province, the only laws subject to change being those relating to French sovereignty, in which George III and the British crown replaced Louis XV and that of France. In acquiring Canada and the Upper Country from France, Great Britain had inherited French sovereignty over its new inland empire, including with it the diplomatic relationships formerly existing between the French crown and its indigenous allies. This inherited sovereignty and its attendant diplomacy would define relations between the British crown and the indigenous peoples of Canada from immediately following the conquest until well into the contemporary era.

Andrew Dyrli Hermeling: Pontiac and the Drapeau Blanc: Re-examining French Involvement in Pontiac’s War

Unlike my co-panelists who presented arguments from well-developed projects, this paper represents a test run at answering a question embedded within a project that is itself still in its infancy, a microhistory of the diplomatic missions that followed in the wake of the so-called Pontiac’s War. Throughout the larger work, I aim to highlight the entanglement of both Indigenous and European legal and political logics. In pursuit of that goal, this paper casts new light on one of the deeper historiographical questions at the center of the study of this conflict: accusations of French collusion in support of the Indian confederacy that took up arms against the British.

Such accusations in the historiography of Pontiac’s War first appeared in the work of Francis Parkman, where the French played the role of co-conspirators alongside a romanticized portrayal of a noble savage heroically standing against an inevitable wave of white civilization. However, as Gregory Evans Dowd has demonstrated, all evidence cited by Parkman appeared in the records of British administrators—most of whom echoed Parkman’s thoughts about the military inferiority of their Indian foes. Within the official records of French administration, no such corroborating evidence exists. Furthermore, the evidence being cited by British administrators pointed not towards French officials, but instead illegal French traders who had not yet left the Pays d’en Haut. Considering the prevailing anti-Catholicism of the time—one aspect of which was the assumption that “papists” were always conspiring against the British—Dowd concludes that such anxieties say more about the mentalities of the British than they do about the legitimacy of French involvement.[13]

However, even Dowd notes that much of the talk of French support came from the “lips of Indian speakers” and thus serves as a “disturbing, repetitive skip in the record.”[14] Why, then, did so many Indian delegates claim to have support from the French? Dowd argues that it is because the Indians sought to persuade the French to reinvest in the region, which, I agree, is a substantial part of the equation. But, I also argue that the work of French traders in the Pays d’en Haut should be taken more seriously, albeit in a way that continues to center the politics of the Indians. In that spirit, I am turning my attention towards a kind of “Indigenous Law of Nations” that animated diplomacy within the North American continent. Much scholarly attention has been paid to the ways in which a European legal and diplomatic tradition, termed the “Law of Nations,” defined international relations around the Atlantic Basin.[15] However, an equally vibrant and well-defined set of Indigenous diplomatic and legal customs set the terms in Indian Country. For those speaking diplomatically—as well as those who rose to political power within their own communities—authority was granted to those who made ostentatious displays through the bestowal of gifts and as brokers of exchange. Material exchange was the engine of their political and moral economies.[16] Considering that the illegal French traders who remained in the Upper Country were in the business of such brokerage, they were legitimate negotiators within the Indigenous Law of Nations even if they lacked such legitimacy in the European legal sense. Thus, diplomacy in the aftermath of Pontiac’s War represents a moment in which these two logics became entangled. While British delegates approached these negotiations with a particular set of assumptions about treaty law, so too did Indians. When British record keepers wrote down Indian proclamations of French support, we ought not dismiss them as British misinterpretations but instead see them as a reflection of an Indigenous political and diplomatic logic.

Julia Lewandoski: French Land Tenure and Indigenous Proprietorship in British Quebec, 1763-1854

After their 1763 conquest of New France, British authorities kept French seigneurial land tenure in place for nearly a century. The extension of French-style feudal proprietorship was part of a larger set of legal concessions to the new province’s overwhelmingly French population. Yet while directed at settlers, this land policy had important implications for indigenous nations. In the St. Lawrence River Valley, Mohawks, Abenakis, Sokokis, and Wendats, among others, all used French property practices to defend their claims to land and sovereignty as British settlers increasingly encroached on their territories.[17]

At Odanak, a former Jesuit mission village on the Saint-François River, Abenaki and Sokoki inhabitants were increasingly faced with settler claims and squatters on their territories in the last decades of the eighteenth century. In the 1790s, they formalized their proprietorship to portions of two seigneuries in a series of suits and notarial acts. They referenced the original 1700 French grants made to their mission, and successfully argued that in the absence of a Jesuit missionary, the land rightfully belonged to them. In 1800, they began granting leases to settler tenants, and by the time the seigneurial system was abolished in 1854, they had made hundreds of seigneurial concessions. Collective proprietorship at Odanak was a means of economic development, a strategy to guard against encroachment by engaging settler neighbors as tenants, and a method of bolstering collective chiefly authority in signed and witnessed notarial documents.

These century-long Abenaki and Sokoki successes in appropriating French legal practices to defend territory and sovereignty broaden the implications of British legal pluralism in Lower Canada. Much more than a concession to Francophone habitants, the extension of French land tenure enabled Abenakis and Sokokis to engage with British authorities not only as subjects and supplicants, but as proprietors and legal actors.

They also complicate scholarly understandings of the intertwined trends of the next century: the solidification of settler private property through the appropriation of indigenous territories, the exclusion of indigenous peoples from property ownership, and their confinement on reserves.[18] Despite British attempts to segregate settler property and indigenous territory, British settler land policy and indigenous actions assured that both categories remained porous and unstable long after 1763.

Indigenous Proprietors Across Empires in North America, 1763-1891

This paper is part of a larger project on how indigenous peoples throughout North America used treaty property protections to claim land and sovereignty. Alongside Abenakis and Sokokis in Lower Canada, I also examine petites nations property claims in the Lower Mississippi Valley after the 1803 Louisiana Purchase, and Tongva and Tataviam landholding before and after the 1848 Treaty of Guadalupe Hidalgo in southern California. In early American Louisiana, petites nations fashioned early French and Spanish diplomatic documents into originating land titles, and in the Los Angeles Basin, Tongva and Tataviam peoples based successful U.S. property claims on their labor in California’s Spanish Franciscan missions and their brief tenure as Mexican citizens. The project foregrounds the sustained creativity and resourcefulness of indigenous actors, as they repurposed settler property processes to survive colonization by multiple imperial regimes.

Reflections on Our Panel and Larger Connections in the Field

In the panel as a whole, I was struck by the common emphasis on legal and diplomatic practices, rather than legal doctrine, in New France after British conquest. For Abenakis and Sokokis at Odanak, mobilizing French legal forms was not a straightforward matter of quoting the Coutume de Paris. Instead, French legal practices of land management, procuration, and notarial use enabled them to establish themselves as seigneurial proprietors. Clearly, there were a variety of actors who shaped what “French law” would mean and how it would be used after 1763, and they did so not only by arguing in Parliament or writing treatises, but also by engaging in quotidian legal practices.

The panel’s engagement with law and indigenous peoples in the late eighteenth century might also enrich how we understand larger trends in North American history, namely the transition from “borderlands to bordered lands,” as fuzzy imperial boundaries were replaced by clearly bordered nation-states, depriving indigenous peoples of the ability to maintain sovereignty in the midst of imperial competition.[19] In 1763, indigenous peoples lost the French empire as a military ally, but they continued to invoke their historic relationships with the French, and French legal practices, well into the nineteenth century. The relative advantages of interacting with multiple empires could still be deployed after an official imperial presence had disappeared.


[1] Samuel Cooper, A Sermon Preached upon Occasion of the Success of His Majesty’s Arms in the Reduction of Quebec (Boston, 1759), ix.

[2] Ibid., 47.

[3] The Memoirs and Adventures of Robert Kirk, Late of the Royal Highland Regiment (Limerick, 1770), 70, 94; George Croghan to William Johnson, January 13, 1761, in The Papers of Sir William Johnson, ed. James Sullivan et al., 14 vols. (Albany: University of the State of New York, 1921–65), 3:302.

[4] Frederick Haldimand to Jeffery Amherst, December 10, 1762, British Library Additional Manuscript 21661, fols. 257–259.

[5] Treaty of Paris, February 10, 1763, article 4, The Avalon Project,

[6] George Croghan to Jeffery Amherst, April 30, 1763, War Office 34/39, 665.

[7] Royal Proclamation, October 7, 1763, Avalon Project,

[8] Articles of Capitulation of Montreal, September 18, 1759, article 2, in A Collection of the Acts Passed in the Parliament of Great Britain and of Other Public Acts Relative to Canada (Quebec, 1824), 2.

[9] Thomas Gage to Charles Gould, April 10, 1764, Colonial Office 5/65, part 3, 613–614.

[10] Hilda Neatby, Quebec: The Revolutionary Age, 1760–1791 (Toronto: McClelland and Stewart, 1966), 21.

[11] William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1765–69), 2:48.

[12] J. Wright, ed., Debates of the House of Commons in the Year 1774, on the Bill for Making More Effectual Provision for the Government of the Province of Quebec (London, 1839), 30.

[13] Gregory Evans Dowd, War under Heaven: Pontiac, the Indian Nations & the British Empire (Baltimore: The Johns Hopkins University Press, 2002): 108-109. Dowd, “The French King Wakes up in Detroit: ‘Pontiac’s War’ in Rumor and History,” Ethnohistory 37, no. 3 (Summer, 1990): 254-278

[14] Dowd, 112-113.

[15] Eliga Gould, Among the Powers of the Early: The American Revolution and the Making of a New World Empire (Cambridge, MA: Harvard University Press, 2012): 26-32.

[16] David Murray, Indian Giving: Economies of Power in Indian-White Exchanges (Amherst, MA: University of Massachusetts Press, 2000). I am also indebted to Cameron Wesson and his theoretical approach in his analysis of the Creek War of 1813-1814. Cameron B. Wesson, “When Moral Economies and Capitalism Meet: Creek Factionalism and the Colonial Southeastern Frontier,” in Across a Great Divide: Continuity and Change in Native North American Societies, 1400-1900, Laura L. Scheiber and Mark D. Mitchell, eds. (Tucson, AZ: The University of Arizona Press, 2010).

[17] Daniel Rueck, “Commons, Enclosure, and Resistance in Kahnawá:Ke Mohawk Territory, 1850–1900,” CHR Canadian Historical Review 95, no. 3 (2014): 352–81; Isabelle Bouchard, Des systèmes politiques en quête de légitimité: terres “seigneuriales”, pouvoirs et enjeux locaux dans les communautés autochtones de la vallée du Saint-Laurent (1760-1860),; Michel Lavoie, C’est ma seigneurie que je réclame la lutte des Hurons de Lorette pour la seigneurie de Sillery, 1650-1900 (Montréal: Boréal, 2010),

[18] Allan Greer, Property and Dispossession: Natives, Empires and Land in Early Modern North America, Studies in North American Indian History (Cambridge ; New York, NY: Cambridge University Press, 2017), 432; Alan Taylor, The Divided Ground: Indians, Settlers and the Northern Borderland of the American Revolution (New York: Alfred A. Knopf, 2006); Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, Mass.: Belknap Press of Harvard University Press, 2005).

[19] Jeremy Adelman and Stephen Aron, “From Borderlands to Borders: Empires, Nation-States, and the Peoples in between in North American History,” American Historical Review 104 (1999): 814–41.