The Custom of Paris () was one of France's regional custumals of civil law. It was the law of the land in Paris and the surrounding region in the 16th–18th centuries and was applied to French overseas colonies, including New France. First written in 1507 and revised in 1580 and 1605, the Custom of Paris was a compilation and systematization of Renaissance-era customary law. Divided into 16 sections, it contained 362 articles concerning family and inheritance, property, and debt recovery. It was the main source of law in New France from the earliest settlement, but other provincial customs were sometimes invoked in the early period.
The Custom of Paris was introduced in 1627 by the Company of One Hundred Associates. In 1664, under the royal charter of the French West India Company, Louis XIV made the Custom of Paris the only legitimate source of civil law in any French colony. In Quebec, however, it was not replaced until the Civil Code of Lower Canada entered into force in 1866.
French inheritance The Custom first originated in 16th-century France as part of a larger project of centralization of law. French law was not unified; multiple regions with distinct laws stemming from each region's unique blend of jus commune and customary law. The Custom of Paris was just one of 360 uncodified custumals in effect across the different regions of 15th-century France.
The customary law of Paris was viewed as prestigious since it was the capital, so it began to be refined between the 13th and 15th centuries as part of a project of codification of all French custumals decreed by King Charles VII in the in 1453. It was first compiled in 1510 and subsequently revised in 1580 by order of King Henry III, following a period of disuse. A symptom of the time in which it was written, the Custom's 362 articles attempted to merge feudal land tenure with the nascent town-centered commercialization of the Ancien Régime.
Initial implementation in New France In 1663, upon the dissolution of the Company of One Hundred Associates, New France came under direct rule by the French crown. The Custom was officially introduced in New France by Article 33 of the royal charter establishing the French West India Company in May 1664. The company retained control of the colony for a decade thereafter.
The Custom had been a part of the justice system of Canada since the 1627 founding of the Company of One Hundred Associates, which previously managed French holdings in North America. The unilateral application of the Custom to the colonies was a solution imposed by the French monarchy after 1664. Despite the judicial unity, customary practice varied across regions.
Institutionally, the colony found itself governed by a three-part government in 1665. The Intendant, who represented one third of this body, was charged with the policy areas of justice, police, and finance, for which the Custom of Paris was relevant. The Custom evolved rapidly in New France, to the extent that in 1760 it was, as applied in Montreal and Quebec City, the "law of Canada", and on certain points had diverged significantly from its origins in France.
Property and tenure
Movable and immovable property Under the Custom of Paris, property was divided into movables (biens meubles: chattels, emblements, debts or 'obligations') and immovables (biens immeubles: land, buildings, fixtures, etc.).
In the interest of encouraging trade, movable property could not be mortgaged and was not considered separate property (biens propres), that is, property in severalty external to the marital community unless specified in the marriage contract. Immovables such as land, offices, and rentcharges (rentes constituées) were considered separate property if acquired by one of the spouses prior to the marriage or inherited directly by either spouse.
Immovable property purchased during the marriage was considered to be after-acquired property (conquêts) and incorporated into the marital property but would become separate property as soon as the estate went into succession. The distinction between separate property (biens propres) and community property (biens communs, or biens de communauté) was very important; many limitations were imposed on the alienation of separate property.
Feudal tenure Land was subject to feudal tenure and could be held in allod or fief, the latter coming in two distinct forms—either free socage (seigneurie) or villein socage (roture). Free socage was considered 'noble' (but the owner did not have to be a member of the nobility) and the latter 'peasant'.
Under feudal tenure, a fief could not be owned outright but was instead divided into competing interests known as estates in land; thus, a single tract of land could be held both in villein socage by a tenant and in free socage by the lord of the manor. Villein socage was subject to a number of real burdens and feudal incidents owed to the manorial landlord. For example, the Custom provided for the payment of an annual feu-duty (the cens) by villein socagers to the landlord as both revenue and as a token of submission. The entry fine () was another mandatory payment, a conveyance fee for villein socages and amounting to a twelfth of the sales price, derived from the feu-duty, as were other fees and the right of laudatio ().
Additionally, the Custom of Paris accorded a number of privileges to lords over villein socagers who were their tenants. They included the right of soke (right to hold court), restrictions, as well as astrictions such as a monopoly over mills and milling (thirlage), water power, hunting, and fishing (piscary). Peasants also had to pay a fixed quitrent for land as specified in their deeds of enfeoffment, and tenants were not permitted to run down their tenancy to the point that the revenue it generated would fail to cover their annual feu-duties. The Custom also contained the equivalent of a building code, outlining rules for property held in common, but in general, police regulations were more important for construction, fire prevention, and public hygiene in New France.
Marriage community
Overview Under the Custom, when a couple got married in New France, the couple married in community of property (communauté de biens), which means that the couple's marital property was co-owned. However, any immovable property purchased prior to marriage or directly inherited remained separate property (biens propres); all other property acquired after the marriage was concurrently owned by the spouses as community property (biens communs, or biens de communauté).art. 220, Cust. Paris
The husband was the "head and master" (seigneur et maître) of the community property; the wife could not alienate property or conduct any other property transactions without her husband's approval. However, the husband was also required to get his wife's consent to undertake a transaction involving any of their community property. Essentially, the community as a legal entity, rather than either spouse separately, was the owner of the marital property. It was possible to marry out of community of property if both prospective spouses elected in a marriage contract to separation of property. Alternatively, the right to administer the community property could be awarded by a court to a wife who could prove that her husband was unfit in some way to administer their property.
Dower and jointure Marriage contracts were often used to alter the rules of inheritance and to provide the surviving spouse and family with one or more financial safeguard(s). The most important such safeguard was dower (douaire), a fixed sum set aside for the wife to live on in the event of her husband's death and drawn from half of the marriage community reserved for the minor heirs.
The dower could take two forms: dower by custom (douaire coutumier), the income drawn from half of the husband's estate that could not be alienated during the husband's life or claimed by creditors after his death unless the wife formally renounced her rights, or contractual dower (douaire préfix), a sum of money stipulated in a marriage contract by the spouses’ respective families, with the wife's same rights applying. Dower by custom was more common among upper-class families in which both spouses held extensive assets, and contractual dower was much more common in general and used almost always by lower-class families.
Ultimately, the couple's children would inherit the dower property, but a widow had the right to live on its income for the duration of her life. Additionally, a widow could elect to walk away from the marital community on the death of her husband and therefore not be responsible for any of its assets or liabilities. This was done if the liabilities outweighed the value in the property that she was inheriting. Under such an agreement, the widow also retained control of her dower, which then became quite valuable and important for her to be able to get back on her feet. It was unavailable to widowers as they were typically the partners that incurred and held marital debt.
Both spouses had the option to put aside a certain amount of property (usually, a sum of money, certain movable property, or a combination of both) that was untouchable by creditors and did not belong to the community for the other spouse to claim in the event of the death of their partner. This was the jointure (préciput) and typically came to half the dower's value. Almost all married couples of the time created a jointure in their marriage contracts, and the vast majority of jointures were reciprocal.
In practice, the jointure allowed a widow to remove her bed, clothes, and personal effects from the marital community prior to the estate inventory, partition of the community, and payment of liabilities.
Abandonment of parental consent in New France The nature of the socio-economic environment in rural Quebec was conducive to marriage. In contrast to France, the social pressures for marriages into affluent and prestigious households was not as pronounced in the new colony, which allowed for greater leniency in gaining parental consent. Sailors and soldiers from France required the approval of their superiors to marry in the colony. Parental consent as required under the Custom became problematic when parents were unwilling to consent to young marriages.
The imbalance of the sexes in the new colony led to a great number of marriages between youths, which was especially pronounced in the early years of settlement: the average age for girls was 12, boys 14. Furthermore, the vast availability of land acted as an incentive for marriage. Local administrators facilitated young marriages despite the lack of parental consent and reprimands from the central government and the local Sovereign Council. The Sovereign Council would punish clandestine marriages by either exiling the married couple to Île Royale or annulling the marriage.
Marriage contracts, while not required under the Custom, were a form of protecting economic interests and a form of security in the New World. Contracts of marriage community (communauté de biens) were significant as they contained important safeguards for widowed men and women as well as their children and orphans.
Legal separations were uncommon in 18th-century rural Quebec. Typically, couples desiring to separate would circumvent the legal process and have a notary draw up a contract to dissolve the marriage community by dividing their movable and immovable assets. It was difficult for women to obtain legal separation; if separation was obtained, women lacked full freedom, as they could not mortgage or alienate their fixed assets without the approval of the justice or their estranged husbands.
Upon the death of a spouse, remarriage was common and frequently occurred without great delay, which created additional complications for inheritance and property principles under the Custom.
Women's rights