Country wives and marriages "à la façon du pays"



These are extracts taken from the case of Connolly vs. Woolrich that went to appeals court in Quebec and the final judgement was handed down on September 7, 1869. The details can be found in La Revue Légale, Vol. 1, jurisprudence canadienne, index analytique des décisions juiciaires rapportées de 1864 à 1871, édité par Messrs. Mathieu & Germain de Sorel.

Conclusions :

415. Though the Hudson's Bay Company's Charter is of doubtful validity, yet if valid, the chartered limits of the Company did not extend westward beyond navigable waters of the rivers flowing into the Bay;--The English common law prevailing in the Hudson's Bay territories did not apply to natives who were joint occupants of the territories; nor did it supersede or abrogate, even within the limits of the Charter, the laws, usages and customs of the aborigines ;--No other portions of the English common law than that introduced by King Charles, Charter obtains in Hudson's Bay territories;--The English law was not introduced into the North-West territories by the cession by France to England, nor by royal proclamations subsequent to that date ;--Neither the decrees of the Council of Trent, nor the ordinances of the French Kings, nor the British Marriage Acts, were law nor in force at Rat River, or in any part of the North-West territories, in 1803. Connolly vs. Woolrich. S. C., 11 L. C. J., p. 197; --3 L. C. L. J., p. 14 (1867);--Q. B., 1 K. L., p. 253 (1869).

967. A marriage contracted at Rat River, in the North-West Territory, between a Christian and a Cree Squaw, without any religious or civil ceremony, but according to the custom of the Cree Indians, and followed by constant co-habitation and repute and the bringing up of a numerous family, during a series of years, is valid, and notwithstanding the existence of poligamy and divorce or repudiation at will, amongst such Indians, such marriage will be recognized by our Courts as valid, if the right of divorce or repudiation be not exercised whilst the parties reside in the territory in question. Connolly vs. Woolrich. S. C., 11 L. C. J., p- 197;--3 L. C. L. J., p. 14 (1867). Confirmed in Appeal. 1 R. L., p. 253 (1869).

968. A Christian marrying an Indian Squaw as above cannot exercise in Lower Canada the right of divorce or repudiation at will. Ibidem.

414. If a Lower Canadian reside in the North-West Territory for a series of years for the purposes of his trade or business, and afterwards return to Lower Canada and there permanently reside, he will not be held to have lost his domicile of birth and acquired one in the North-West Territory, and a community of property will be held to have existed between him and a Cree squaw, whom he may have married in the North-West according to Cree custom. Connolly vs. Woolrich. S. C., 11 L. C. J., p. 197 ;--3 L. C. L. J., p. 14 (1867) ,--Q. B., 1 R. L., p. 253 (1869).

Implications :

This means that in appeal the Highest Court of Lower Canada recognized that country marriages contracted in the North West territories, where there were neither priests or churches, were legitimate and that the children of these marriages were legitimate and had a right to the inheritance that was left by their fathers.

Summary :

On sait qu'il s'agit en cette cause de la validité et de la légitimité du mariage indien contracté par William Connolly et Suzanne dans le territoire du Nord-Ouest en 1803. William Connolly avait quitté le Bas-Canada en 1802 pour aller, bien jeune, tenter fortune dans le Nord-Ouest. Peu après son arrivée, il contracta liaison avec la fille d'un chef indien, avec qui il vécut maritalement jusqu'en 1831, époque de son retour en Canada.

Il eut de Suzanne plusieurs enfants, entr'autres le demandeur. Peu après son retour à Montréal avec la Sauvagesse et ses enfants, il quitta cette dernière et épousa à L'Assomption, en face de 1'Eglise Catholique, mademoiselle Julia Woolrich, de qui il eut deux enfants. Ce dernier mariage dura jusqu'à sa mort arrivée en 1849, précédée d'un testament par lequel il institua sa femme (Julia Woolrich) sa légataire universelle. Suzanne étant morte en 1862, à St. Boniface de la Rivière Rouge, dans un convent où l'avait

placée William Connolly, le demandeur John Connolly (fils de Suzanne) intenta contre Julia Woolrich une action pour recouvrer ses droits en vertu du premier mariage. Par cette action il a réclamé la part de communauté qu'il prétendait avoir existée entre William Connolly et Suzanne, ses père et mère. Julia Woolrich a repoussé cette action, alleguant son propre mariage et prétendant que Suzanne n'avait été qu'une concubine, qu'elle n'avait jamais été mariée avec William Connolly. La Cour de première instance et les Cours de Révision et d'Appel, ont maintenu que le mariage de Connolly avec Suzanne était un mariage valide.

The parties to the action, as qualified in the writ and declaration, are John Connolly the plaintiff against Julia Woolrich otherwise called Mistress William Connolly, fille majeure et usante de ses droits,the defendant, and the declaration then contains the following averments and allegations.

That the late Wm. Connolly in 1803 at Rat River, Rebaska or Arthabaska County in the Hudson's Bay Territory, married an Indian woman of the Cree tribe or nation called Suzanne. That the marriage was celebrated according to the usages and customs of the country and could not be otherwise celebrated, there being no clergymen or missionnarys resident there at the time.

That he was then a clerk in the service of a travelling company called the North West Company.

That these parties lived together as husband and wife continuously and happily from the time of their marriage in 1801 to 1832 during which period several children were born to them of whom the plaintiff was the first born.

That, no contract of marriage was executed between them at their marriage and consequently that acommunauté de biens, community of property, was established between them. That W. Connolly had acquired a large amount of real and personal property daring his marriage. That he died at Montreal on the 3rd. of June 1849 leaving a large estate in Lower and Upper Canada, in part set out in the declaration, all of which by his will executed in 1848 he bequeathed to the defendant to be at her disposal, etc. That upon his death she took possession of and retained the entire property.

That Suzanne survived him and was entitled by law to one half of that entire property as commune en bienswith him.

That he had no legal power of disposition of the property for more than one half thereof, and therefore his bequest to Julia Woolrich as to the one half of the property was null and void and of no effect.

That Suzanne died at Red River on the 14 August 1862 leaving issue of her marriage with William Connolly several children of whom the plaintiff was one, and as such entitled to 1/6 of her half of the community property, or 1/12 of the entire property bequeathed to Julia Woolrich by William Connolly.

To this action the defendant filed two pleas, prefacing each with a protestation of a denial of the averments of the declaration, in the first specially alledging that Suzanne never was married to William Connolly ; that the only time he ever was married, was when he married Julia Woolrich in May 1832, after which they publickly enjoyed the status of husband and wife to his death in 1849 : from that time she enjoyed the status of his widow.

In the second plea alledging that by the prevailing law of the Hudson's Bay Territory for above 100 years and particularly at Rat River, no community of property existed between husband and wife nor could result from a marriage there solemnised, nor was it created by any law or custom ; on the contrary, that by the said prevailing law of the territory, for above 100 years, the wife had no share or interest in property acquired by her husband, and the plaintiff could not invoke the law of community of Lower Canada, wherefore action should be dismissed.

Final Judgement :

With the dismissal of these pleas the contention might be closed, but in argument the defendant has objected without pleading the objection against the recognition of the plaintiff as the son and child of his father William Connolly and his mother Suzanne. By the evidence of record of witnesses both of plaintiff and defendant, and by the acts and admissions of William Connolly himself. The status of the plaintiff has been perfectly established as being one of the children, born of the marriage in question, and that he was recognized by his father as such, he is referred to by him in his letter to John Reeves filed as an Exhibit in the cause by plaintiff. The plaintiff bore his father's name, and was baptised in his father's presence and with his consent and his signature to the Act of Baptism and the Registry thereof.

The status of William Connolly and Suzanne is established as man and wife, the status of legitimacy of their children including the plaintiff born during that status follows of course.

It is objected that the status of the plaintiff can only be proved by a Baptismal certificate, and that the certificate produced invalidates his status.

Now it is undisputed that in the absence of registers in the Indian country the place of birth as in this case, oral evidence of the status from the recognition of the child by his parents, his bearing his father's name and other circumstances would form his Etat, as the child of the marriage of William Connolly and Suzanne. In fact he is admitted by the defendant herself to be their child, but, only a natural child.

It has already been shown that the marriage of his parents was contracted in due form, according to the customs of the country where celebrated, and it is also proved that plaintiff is the eldest son of that marriage. The marriage being valid, and plaintiff being the lawfully begotten child of that marriage, he is one of Suzanne's heirs and entitled to his demand, which a legatee of the estate of William Connolly has no interest in contesting as the plaintiff's claims pro matrem not pro patrem. As to the certificate of Baptism of 1813 ; it avers that he was about 8 years old and born in Upper Canada, and that his legitimate parents were unknown. The certificate does not declare him to be a bastard or a natural child, as is usual where such is the case, but simply that the legitimate parents are unknown to the recording priest. The objection of disqualification cannot be found in such a certificate.

Arguments drawn from the crime of Bigamy chargeable against William Connolly, are entirely beside this action and need not be repeated.

The technical objections against the form of declaration are of no avail. The plaintiff had a right by law to sue for his own share of his mother's estate, whatever ; his brothers or sisters may do and can act quite independant of him. - He is not bound to recognize any other detainer of his mother's estate than the defendant, from whom he is entitled to have his part and as a consequence an account of her administration of it

The procedure being right and the plaintiff's claim established. The judgment of the Court below must be maintained and the appeal dismissed.