Tuesday, December 20, 2011

"Lord Save Us from the Et Cetera of the Notaries"

For millennia archivists have struggled with the question of how to appraise and preserve an archival record of local, unwritten custom. The British historian E.P. Thompson, in an effort to explain why respectable local citizens would blacken their faces and poach the King’s deer, [i.e. the origins of the 18th century Black Act] and concluded that the common experiences of local custom supported resistance to the King’s expanding forests. As Thompson famously wrote, “at the interface of land and law is custom.” Common custom, he concluded, was a kind of unwritten ambience.
Similarly, when the French monarchy expanded across northern Europe in the 13th century, jurists attempted to incorporate the indigenous, unwritten customs of independent communities. To accommodate this “law of the land” jurists with some knowledge of customary law, known as coutumiers, travelled across rural France documenting local laws in a process that eventually produced the French Code Civil and ultimately the template for the Civil Code of Québec. The coutumiers shared a common problem. How to document a living custom known only by oral tradition? Medieval scholar Philippe de Beaumanoir in his famous work, Coutume de Beauvaisis summarized the need to capture in text, practices known only in unwritten custom:

It is my opinion, and others as well, that for all the customs which are currently used, are good and profitable, to be written down and registered, so that they be maintained without change, for memories are fallible and peoples’ lives are short, and what is not written is completely forgotten
But coutumiers believed it was not enough to document local custom, the custom must be authentic to be trusted. Once again in the long history of archives, we find a primary goal underscored: to preserve records in a manner both authentic and reliable. To produce trustworthy records from oral testimony the coutumiers turned to a device from Roman Law: the Enquête par turbe. The enquete is a tribunal co-opting the elders of a community to derive a common custom on a subject.

Several wise men, in good repute, are to be called.... The custom having been proposed, they are to declare and honestly transmit what they know and believe and have seen to be the practice …. Upon the swearing of an oath, they are to stand off to the side, deliberate, and communicate their deliberations...

In the enquête par turbe Renaissance French jurists offer us an example of western law trying to apply textual parameters of legal reason around local cultures built on complex personal relationships of land and unwritten heritage. A common expression of the period summarized the perspective of regional French communities experiencing the enfolding French national constitutional program and their loss of cultural authority: “Lord save us from the et cetera of the notaries.”
Once safely recorded on paper, regional custom was secured in an archives and incorporated into national law. Charles DuMoulin, Parisian jurist and advocate for documenting unwritten heritage explained the purpose in discussing the documentation of the local common customs surrounding Paris:
 The text of these customs…have been rendered the most accurate possible. They are useful to reference the original custom, and should be deposited in registers, either in the Parliament of Paris, or in courts and administrative offices of the kingdom. They can even be conserved in specialized libraries and cabinets... they can be referred to in innumerable [circumstances] to reconstruct the verbal process. 
Centuries later, Sir James Douglas was confronted with a challenge not unlike the coutumier: to attempt to reconcile and incorporate indigenous custom into the assimilating textual form of colonial governance. One of his earliest efforts to document the unwritten traditions of First Nations came in the form of the Doulgas Treaties. Since Douglas’s efforts, not unlike the French coutumiers, we have witnessed numerous attempts to document the relationship between local indigenous custom, law and confederation. To what degree did Douglas and his contemporaries capture and articulate the unwritten land practices of indigenous peoples is best summarized by Wilson Duff’s pithy characterization of the Douglas Treaties as “innocent legal fictions”. This type of recognition and reconciliation continues today in the form of  projects such as the BC Treaty Commission.

Raymond Frogner,
Royal BC Museum

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