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CUGNET, FRANÇOIS-JOSEPH, seigneur, judge, attorney general, chief road commissioner (grand voyer), French translator and French secretary to the governor and Council of Quebec, clerk of the land rolls, and lawyer; b. 26 June 1720 at Quebec, eldest son of François-Étienne Cugnet* and Louise-Madeleine Dusautoy (Dusaultoir); d. there 16 Nov. 1789.
Little information can be gleaned about François-Joseph Cugnet’s childhood and adolescence. He does not appear to have attended the Jesuit college in Quebec. He was a descendant of a family of Parisian lawyers – his paternal grandfather, Jean (Jean-Baptiste), and his uncle, Jean-Baptiste Cugnet, had taught law at the Université de Paris, and his father, François-Étienne, had been a lawyer in the parlement of Paris before being appointed director general of the Domaine d’Occident in New France – and he was naturally drawn to the study of law. This choice is even less surprising since, according to an inventory of property, his father had a library that was astonishingly rich for the period in treatises on all types of law, civil, criminal, and canonical. As a youth Francois-Joseph, like his three brothers and sister, was able to familiarize himself with the profession. Three of the family in fact would engage in legal activities: François-Joseph, Thomas-Marie, who became a member of the Conseil Supérieur, and Gilles-Louis, who, although he was a canon, pursued law studies up to the doctoral level in France, where he sought refuge after the capitulation of Quebec.
From October 1739, it seems, until September 1741, François-Joseph took the courses given by Attorney General Louis-Guillaume Verrier*. Then, from 1741 to 1747, a period during which his father was in the greatest financial difficulty due to the bankruptcy of the Saint-Maurice ironworks and when, as well, the elder Cugnet was using all possible means to retain the trading lease to the Tadoussac post, François-Joseph completely disappears from sight. He reappears in Saint-Domingue (Hispaniola), where from 1747 to 1750 he stayed as a scrivener in the Marine. From 30 Sept. to 31 Dec. 1751 he was incarcerated in the La Rochelle prison on a charge of having attacked Denis Goguet, the former agent at Quebec of a La Rochelle merchant. In the summer of 1752, after managing to borrow 2,400 livres to pay his passage, François-Joseph returned to Quebec for good. The debt obliged him not only to give up his share in his late father’s house, but also to relinquish all rights to the estate, as accounts rendered by his mother on 5 May 1753 indicate.
In this period, after an investigation into his conduct, Cugnet on 21 May 1755 was refused a commission as assessor to the Conseil Supérieur, an office his brother Thomas-Marie had obtained on 4 Oct. 1754. François-Joseph was able to find the means, however, to put his knowledge of law into practice as a scrivener in the head office of the Domaine d’Occident from 1755 to 1758. On 14 Feb. 1757, at the age of 36, Cugnet married Marie-Josephte de Lafontaine de Belcour at Notre-Dame in Quebec. She was 20 years younger than he. They were to have five children, of whom only two reached adulthood. The elder, Jacques-François, became a lawyer and served with his father as joint French secretary and French translator; the younger, Antoine, never attracted much attention and died unmarried.
Marie-Josephte de Lafontaine de Belcour was the great-granddaughter of François Byssot* de La Rivière and Cugnet was drawn into defending her share in the seigneuries of Île aux Œufs, Anticosti Island, the Mingan Islands, and especially the mainland seigneury of Mingan, which was the object of protracted litigation. The latter case had begun in 1763 with a quarrel between Governor Murray and Cugnet’s father-in-law, Jacques de Lafontaine* de Belcour; after Belcour’s death in 1765 Cugnet took the case in hand, at a time when many in Quebec, with Murray first and foremost, were hoping that an impending decision by London would restore to the province the north shore of the St Lawrence and Labrador, which had been joined to Newfoundland, and so allow it to continue exploiting the lucrative winter fishing grounds. However, in 1768 London refused to recognize the claims of the heirs to the mainland seigneury of Mingan. At the time of his marriage, François-Joseph had acquired three-quarters of the seigneury of Saint-Étienne, which his mother and his two brothers turned over to him. This action was tantamount to recognition at the opportune moment of the title seigneur of Saint-Étienne that Cugnet had assumed in 1751.
At the end of the French régime, at the time of the final French attempt to retake Quebec after the victory of Sainte-Foy, Montcalm*’s successor, François de Lévis, kept Cugnet under guard on board one of his frigates. Because accusations of treason were being spread about Cugnet, Governor Vaudreuil [Rigaud] even proposed an investigation into his conduct at the time of the capture of Quebec in September 1759. This rather obscure episode in Cugnet’s life has yet to be cleared up.
With the advent of the British régime Cugnet found the way to a brillant career as a bureaucrat, an achievement probably beyond his reach under French rule, since he had been held in little esteem. In December 1759 Murray appointed him judge for the parishes of Charlesbourg, Beauport, and Petite-Rivière; on 2 Nov. 1760 he became attorney general for the north shore in the District of Quebec, an office he may have held until his appointment on 20 Nov. 1765 as chief road commissioner for the District of Quebec. He retained that office until 1768.
Cugnet would lose no time, furthermore, in winning the confidence and esteem of Murray’s successor as head of the colonial government, Lieutenant Governor Guy Carleton*. His legal knowledge also impressed the new attorney general, Francis Maseres*, who considered him “a very ingenious and able Canadian gentleman . . . well acquainted with the Custom of Paris.” Maseres found in Cugnet an associate competent to initiate him into the usages and customs of the Canadians and able to interpret the regulations of the former French administration. Cugnet succeeded in making himself so valued that on 24 Feb. 1768 he was awarded the post of French translator and French secretary to the governor and the Council of Quebec.
Carleton had been ordered by the British government to carry out an inquiry into the state of the laws and the administration of justice in the colony, and he immediately pressed his French secretary into service. At his request Cugnet drew up a brief summary of the “Coutumes et usages anciens De La Province de Quebec,” which the governor hastened to send to the secretary of state for the Southern Department, Lord Shelburne, in the spring of 1768. The following year Cugnet prepared an “Extrait des Edits, Déclarations, Règlemens, ordonnances, Provisions et Commisions des Gouverneurs Généraux & Intendants, tirés des Registres du Conseil Supérieur faisant partie de la Legislature En force dans la Colonie du Canada, aujourd’huy Province de Quebec.”
But in the mean time a controversy had arisen over Cugnet’s summary, which drew criticism from both Attorney General Maseres and Chief Justice William Hey. They considered its form too “concise” and its terminology too “technical” for it to be clearly understood by the law officers of the crown. Governor Carleton therefore decided to call upon other competent people including Abbé Joseph-André-Mathurin Jacrau and Abbé Colomban-Sébastien Pressart, of the Séminaire de Québec, who undertook a new codification. Their collective work finally resulted in the publication in London in 1772–73 of what was known as the “Extrait des Messieurs,” a text in five parts, of which one was none other than the “Extrait des Edits . . .” prepared by Cugnet in 1769. Although he had collaborated in the joint work, Cugnet was nevertheless jealous because the exclusive right to perform the task had been taken away from him. In addition to suffering from hurt pride, he was apprehensive in view of the prevailing uncertainty about the fate Great Britain was holding in store for the long-standing usages and customs of the conquered people. And indeed, until the introduction of the Quebec Act, which was to reassure and calm him, Cugnet worked up a great deal of anxiety and aggressiveness in defence of the old property laws, to which, as a small seigneur, he especially clung.
It was just after the publication of the “Extrait des Messieurs” that the celebrated quarrel occurred between Cugnet and Maseres which, for historian Thomas Chapais*, had the appearance of a struggle in which Cugnet – “this Canadian by heart as well as by birth” – figured as the “national champion” for the defence and preservation of his compatriots’ rights. Maseres, the former attorney general, had returned to England after three years in Canada but continued to take an interest in Canadian affairs. Hence in August 1772 he had published in London at his own expense a Draught of an act of parliament for settling the laws of the province of Quebec. This draft recommended the adoption of the “Extrait des Messieurs” as the civil code of the province, while making provision for the possible introduction of certain parts of British law. Maseres proposed in particular that the succession laws be modified in a way that he considered “a softening” of the law of primogeniture.
When Cugnet learned of this plan, he was unable to restrain his anger and criticized it in terms Maseres considered “venomous.” He protested against adopting the “Extrait des Messieurs” as the only civil code for the province without recourse to various treatises and commentaries of French jurists, and he violently opposed the changes proposed in the succession laws, invoking principles of natural justice to support the method of land partition under the seigneurial system. He declared peremptorily that “if the British government imposed these new [succession] laws on its new subjects without their consent, it would be harsher than the Turkish government.” And Cugnet unhesitatingly attempted to prejudice the famous jurist William Blackstone against Maseres, daring to assert that the Canadians had always considered the former attorney general “as their sworn enemy.” Intellectually and emotionally a Whig, Maseres was a great admirer and defender of the British constitution and laws quite as much as he was a fierce upholder and zealous adherent of the Protestant faith, and he was deeply offended. In August 1773 he published in London a Mémoire à la défense d’ un plan d’acte de parlement pour l’établissement des loix de la province de Québec . . . in which he refuted point by point the objections raised by Cugnet. This memoir, largely devoted to the proposed change in the law of primogeniture, sheds some light on Cugnet’s fixed views. Having agreed to become a British subject in the hope of keeping “the entire peaceable property and possession” of all his belongings (according to the terms of the articles of capitulation of 1760), Cugnet showed himself determined to resist as best he could the “attempts” to deprive him of them. Judging that the seigneurial system offered him the best guarantee of protection and seeing in every effort at change a danger of encroachment, he worked furiously to defend the cause of the old property laws so as to establish a better claim to the preservation of his rights to his own seigneury of Saint-Étienne. All this controversy between the former attorney general and the governor’s French secretary did not prevent Maseres, when called to testify before the House of Commons committee at the time of the debates on the Quebec Bill, from several times naming Cugnet in support of his affirmations.
In the climate of uncertainty prevailing in the colony, only the fear of seeing “the king alter and change at will the former laws of every conquered country” prompted Cugnet to contemplate the creation of a house of assembly composed of the representatives of the seigneurial class, in order to guarantee that the old property laws would not be changed without the consent of those having the greatest interest in their preservation. Feverishly active in the period of unrest that marked the introduction of the Quebec Act, Cugnet busied himself at the end of 1774 with the preparation of a circular letter under the pseudonym “Le Canadien Patriote”: his intention was to put his compatriots on guard against the activities and intrigues of British merchants such as Thomas Walker and Isaac Todd* who “were working” at antagonizing them and making them dissatisfied. “Those people must surely take us to be wonderfully stupid, and totally blind to our own interest, that they venture to request us to join with them in complaining of an act of parliament which . . . grants us every thing we had desired, – the free exercise of our religion, – the use of our ancient laws, – and the extension of the boundaries of our province. . . .” Once the Quebec Act relieved him of his worries, Cugnet showed himself so completely satisfied with it that he opposed any change in the form of government. Like his son Jacques-François, he considered as “madmen” the Canadian “reformers” who after 1783 headed a movement for an appeal to the people with a view to forming a representative government in which laws would be subject “to the whim of an ignorant majority.”
While preparing the French translation of the Quebec Act which appeared in the Quebec Gazette on 8 Dec. 1774, Cugnet was actively compiling four treatises on French civil law, which were to be the first published in Canada. Governor Carleton himself subsidized their publication, as the accounts of printer William Brown prove. It was largely through these treatises that Cugnet acquired a degree of fame, and we must be grateful to him for having shown how the customary law of Paris was applied in the colony.
The seigneur of Saint-Étienne could not put aside the convictions, preoccupations, and claims which had led him to regard property law and seigneurial tenure as highly important. He readily assimilated His Britannic Majesty to a sovereign lord to whom his Canadian vassals had to render fealty and homage at his Château Saint-Louis at Quebec. With such a feudal concept of the organization of society in the colony, Cugnet had no difficulty in getting his views endorsed by Governor Carleton. Carleton used many arguments to plead with the authorities in London for the preservation of the seigneurial system, because he saw in it the surest means not only of winning for the British crown the “firm attachment” of the Canadian seigneurs and their censitaires, but also of ensuring that order and submission to authority reigned in the colony “from the first to the lowest.”
The governor could not haggle over favours of the new régime with so close a collaborator who in his writings supported the British crown’s domination over the colony and also favoured consolidation of the power of the colonial authorities. Consequently, after re-establishing the office of clerk of the land rolls in 1777, Sir Guy Carleton appointed none other than his French secretary to it, without much concern for the conflict of interest that might arise in the exercise of the two offices. In effect, as clerk of the land rolls Cugnet had to certify the value of the documents presented by the seigneurs, while as secretary he had to make an inquiry to establish their authenticity. Consequently there is no reason to be surprised that Cugnet endeavoured to take advantage of this situation to assert or to make the most of his own seigneurial rights and those of members of his family, particularly in the case of the mainland seigneury of Mingan. But he had to endure a stinging defeat when he made a vain attempt in 1781 to get his claims and those of five co-seigneurs of Anticosti, the Mingan Islands, and the mainland Mingan seigneury recognized by Governor Haldimand and Attorney General James Monk*, since both refused to sign their act of fealty and homage.
One of the last favours Cugnet had been able to obtain from Carleton before he was replaced by Haldimand was a commission as a lawyer; he received it on 1 May 1777, at the same time as his son Jacques-François, who was less than 20 years of age. It constituted official recognition of the title of “lawyer in the parlement” that Cugnet had assumed in 1771. In truth, his reputation was so great and his legal opinions so widely sought, that he had acted as a consulting lawyer long before receiving his commission. Governor Haldimand himself, during his noted lawsuit against John Cochrane, made use of an argument put forward by this expert in French law – and in 1783 won his case. Cugnet naturally acquired personal renown as a result.
During the final period of his life Cugnet no longer showed the fighting spirit that had but lately led him to engage so fiercely in the defence of his own and his compatriots’ seigneurial rights. Since by virtue of the Quebec Act his title as seigneur of Saint-Étienne was secure, he no longer felt the need to be vindictive. This assurance explains why he did not take a really active part in the struggle of 1784–89 between the partisans of constitutional change and the defenders of the régime set up in 1775. He was content to espouse the cause of the defenders, whose principal spokesmen were drawn from among the seigneurs.
After an exciting and busy public life, Cugnet saw the end of his career darkened by lawsuits and legal proceedings. On 27 Sept. 1783 he initiated an action against his sister’s heirs and his mother’s executor, Michel-Amable Berthelot* d’Artigny; he contested his mother’s will in the hope of obtaining more money from the estate than she had left him. Knowing her eldest son’s financial difficulties, she had wanted to protect the share of the capital she intended for her grandsons and to give him only a life interest in it. Dissatisfied, Cugnet even went so far as to lay claim to his father’s estate, which circumstances had obliged him to renounce in 1753; he also tried to arrogate to himself the share belonging to his brothers Gilles-Louis and Thomas-Marie, who by that time had died. He came off badly and had to give up all his claims in 1784. In 1786 judge Pierre-Méru Panet* had to settle the litigation over the claims to the seigneury of Saint-Étienne that Cugnet had advanced at the expense of his sister’s heirs. In all these actions François-Joseph showed himself a self-seeking haggler, capable of taking advantage of his posts to make the old records say what he wanted.
Financial worries embittered the last years of his life. Up to his ears in debt, Cugnet was unsuccessful in pacifying his most recent creditor, Michel-Eustache-Gaspard-Alain Chartier* de Lotbinière, who sued him on behalf of the estate of Louis-Joseph Godefroy de Tonnancour. From 1786 to 1789 Cugnet carried on an interesting correspondence with his creditor. He was a lively and prolific writer, and his personal writings are of great value for an understanding of him. This personal correspondence, and, as well, his “Observations succintes” of 1786 concerning the seigneury of Saint-Étienne and all the documents related to his numerous lawsuits, must be examined: in these he shows himself sometimes arrogant, sometimes despairing, but always possessed by the delusions of grandeur that caused his misfortunes and disappointments.
On 29 May 1788 Cugnet had the joy of seeing his son Jacques-François named by Lord Dorchester to the office of joint secretary and joint translator to the governor and Council of Quebec. The first French secretary’s succession was assured.
Cugnet passed away at Quebec on 16 Nov. 1789. His funeral was held in the church of Notre-Dame in Quebec, where he had been baptized and where he had been married. The seigneur of Saint-Étienne received the honour of being buried under his pew, in keeping with custom, on 18 November. The Cugnet name was soon to disappear in Canada, since François-Joseph’s two sons had no descendants.
[The four treatises on French civil law prepared by François-Joseph Cugnet were published by William Brown at Quebec in the period from February to May 1775 and bore the following titles: Traité abrégé des ancienes loix, coutumes et usages de la colonie du Canada . . . ; Traité de la loi des fiefs . . . ; Traité de la police . . . ; Extraits des édits, déclarations, ordonnances et règlemens, de Sa Majesté Très Chrétienne. . . . These treatises demonstrate that as a pupil Cugnet followed the example of his teacher, Attorney General Louis-Guillaume Verrier, who paid particular attention to the practical aspects of law rather than to its theoretical side. They are the work of an intelligent and opportunistic bureaucrat who knew how to put to use his legal knowledge and the experience acquired in various posts; but we can only regret that Cugnet did not take the trouble to prepare carefully certain of them that seem rather slapdash and superficial. On the other hand, the two manuscripts dealing with municipal law merit close study, including comparison of the 1775 copy with that sent to Blackstone in 1773. It would be interesting to know what importance Cugnet’s contemporaries attributed to his writings, but unfortunately the documents of the period say nothing about this. p.t. and m.d.-t.]
AN, Col., B, 72, f.48; C11A, 72, f.228; 75, f.166; E, 101 (dossier Cugnet). ANQ-M, Doc. jud., Cour des plaidoyers communs, Registres, 8 août 1781–11 mai 1785, 1786. ANQ-Q, État civil, Catholiques, Notre-Dame de Québec, 27 juin 1720, 14 févr. 1757, 18 nov. 1789; Greffe de Nicolas Boisseau, 28 août 1742; Greffe de P.-L. Descheneaux, 2–4 sept. 1783, ler–22 déc. 1785; Greffe de J.-C. Panet, 5 mai 1753; NF 2, 40, f.108; NF 11, 67, ff.67v, 154v, 159; 68, ff.7, 12, 41, 128v; QBC 16, 1, ff.355–61. ASQ, Polygraphie, V; 52a. AUM, P 58, Corr. générale, J.-F. Cugnet à P.-P. Margane de Lavaltrie, ler févr. 1787. BL, Add. mss 21719, f.47v; 21873, f.293v; 21883, ff.75–75v. McGill University Libraries, Dept. of Rare Books and Special Coll., ms coll., CH9.S44, CH191.S169, CH243.S221b. PAC, MG 11, [CO 42], Q, 1, pp.186–89; 2, pp.1–2, 104, 111–25; 5, pp.316–22, 432, 477–81, 482–559; 56, pp.352–87; RG 68, 89, ff.113, 175; 90, ff.64, 78; 91, f.207. PRO, CO 42/1, pp.224–360; 42/5, pp.13, 15–17; 42/6, pp.93–94 (copies at PAC). Bégon, “Correspondance” (Bonnault), ANQ Rapport, 1934–35, 160. Coll. des manuscrits de Lévis (Casgrain), VIII, 169, 180; IX, 94. Docs. relating to constitutional history, 1759–91 (Shortt and Doughty; 1918), I, 288–91, 299–301. G. B., Parl., 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, drawn up from the notes of Sir Henry Cavendish . . . (London, 1839; repr. [East Ardsley, Eng.] and [New York], 1966). [Francis Maseres], An account of the proceedings of the British, and other Protestant inhabitants, of the province of Quebeck in North-America, in order to obtain an house of assembly in that province (London, 1775); Additional papers concerning the province of Quebeck: being an appendix to the book entitled, “An account of the proceedings of the British and other Protestant inhabitants of the province of Quebeck in North America, [in] order to obtain a house of assembly in that province” (London, 1776); Maseres letters (Wallace), 99–100, 103; Things necessary to be settled in the province of Quebec, either by the king’s proclamation, or order in council, or by act of parliament ([London, c.1772]). Rapports sur les lois de Québec, 1767–1770, W. P. M. Kennedy et Gustave Lanctot, édit. (Ottawa, 1931), 11. F.-J. Audet, “Commissions d’avocats de la province de Québec, 1765 à 1849,” BRH, XXXIX (1933), 578. P.-V. Charland, “Notre-Dame de Québec: le nécrologe de la crypte,” BRH, XX, 249. P.-G. Roy, Inv. concessions, III, 198–99; Inv. ins. Prév. Québec, I, 185; III, 127, 130; Inv. jug. et délib., 1717–60, V, 279; VI, 32; Inv. ord. int., III, 188; Inv. procès-verbaux des grands voyers, I, 176–92; V, 96–141, 158. Brunet, Les Canadiens après la Conquête [In this historian’s work Cugnet appears as “a precursor of parliamentary democracy in Quebec.” Such a portrayal of him can only be understood by making a scenario from historical reality based on fragmentary and abbreviated documentation, and disregarding the profound motivations that led Cugnet to take certain initiatives in the name of the “True Canadian Patriots” before the Quebec Act calmed this seigneur’s lively apprehensions. p.t. and m.d-t.]. Burt, Old prov. of Que. Thomas Chapais, Cours d’histoire du Canada (8v., Québec et Montréal, 1919–34), I, 126–27. Gonzalve Doutre et Edmond Lareau, Le droit civil canadien suivant l’ordre établi par les codes . . . (Montréal, 1872). Adélard Gascon, “L’œuvre de François-Joseph Cugnet; étude historique” (thèse de ma, université d’Ottawa, 1941). Roger Huberdeau, “François-Joseph Cugnet, jurisconsulte canadien; essai historique” (thèse de biobibliographie, université de Montréal, 1947). Edmond Lareau, Histoire du droit canadien depuis les origines de la colonie jusqu’à nos jours (2v., Montréal, 1888–89). Neatby, Administration of justice under Quebec Act. Marine Leland, “François-Joseph Cugnet,” Revue de l’université Laval, XVI-XXI; “Jean-Baptiste Cugnet, traîte?” Revue de l’université d’Ottawa, XXXI (1961), 452–63; “Histoire d’une tradition: ‘Jean-Baptiste Cugnet, traître à son roi et à son pays,’” Revue de l’université d’Ottawa, XXXI (1961), 479–94 [This series of articles, which deserve to be assembled in one volume, is the fruit of prolonged, patient, and meticulous research. They constitute the only thoroughly researched study so far undertaken of this man, whom the author tracks through an extensive documentation of primary sources drawn from the great collections of historical archives. We can only be grateful to this specialist in French literature for having provided such full documentation, while making no claim to be undertaking a historian’s work. p.t. and m.d.-t.] André Morel, “La réaction des Canadiens devant l’administration de la justice de 1764 à 1774,” La Revue du Barreau de la prov. de Québec (Montréal), XX (1960), 53–63. Benoît Robitaille, “Les limites de la terre ferme de Mingan,” BRH, LXI (1955), 3–15, P.-G. Roy, “Les grands voyers de la Nouvelle-France et leurs successeurs,” Cahiers des Dix, 8 (1943), 215–17.