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The Invention of Custom
T H E H I S T O RY A N D T H E O RY O F
I N T E R NAT IO NA L L AW
General Editors
NE HAL BH U TA
Chair in International Law, University of Edinburgh
In the past few decades the understanding of the relationship between nations has undergone a
radical transformation. The role of the traditional nation-state is diminishing, along with many
of the traditional vocabularies which were once used to describe what has been called, ever since
Jeremy Bentham coined the phrase in 1780, ‘international law’. The older boundaries between states
are growing ever more fluid, new conceptions and new languages have emerged which are slowly
coming to replace the image of a world of sovereign independent nation states which has dominated
the study of international relations since the early 19th century. This redefinition of the international
arena demands a new understanding of classical and contemporary questions in international and
legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional
divide between international legal theory, intellectual history, and legal and political history. The aim
of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the 21st
century, that are theoretically informed and for philosophical work that is historically conscious, in the
hope that a new vision of the rapidly evolving international world, its past and its possible future, may
emerge.
FRANCESCA IURLARO
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Francesca Iurlaro 2021
The moral rights of the author have been asserted
First Edition published in 2021
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v3.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm)
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2021942611
ISBN 978–0–19–289795–4
DOI: 10.1093/oso/9780192897954.001.0001
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Series Editors’ Preface
The Law of Nations –the ius gentium –had originally been merely the law which
the Romans had applied to their –predominantly commercial –relations with non-
Romans. It took on a wholly new significance, however, after the ‘discovery’ of the
Americas, which had in effect brought into existence what the German jurist Carl
Schmitt in 1951 described as ‘the traditional Eurocentric order of international
law’. In this book Francesca Iurlaro offers a broad-ranging and powerfully compel-
ling new account of just how this new ‘order of international law’ transformed what
had once been a form of law based upon a voluntary agreement between peoples,
into one which was supposed to be binding on all peoples across the globe –and
might thus be imposed by one people upon another. She charts the evolving strat-
egies by which a succession of jurists, theologians, and humanists from Francisco
de Vitoria in the 16th century until Emer de Vattel in the eighteenth, sought to
create a ‘new law which was universally applicable to the global community (orbis),
regardless of the specific cultural and historical contexts of local political commu-
nities’. This tied the Law of Nations to the Law of Nature (the ius naturae) –the
Thomist and neo-Thomist elaboration of the claim that there existed in nature it-
self a single basic form of knowledge for all humankind, which was discoverable
through the use of human reason. The Law of Nature, however, was in effect a piece
of cognitive machinery capable only of generating a universal order of justice. The
jurists who contributed to the creation of Schmitt’s ‘traditional Eurocentric order
of international law’ required something more precise –and ultimately enforce-
able –something capable, in effect, of creating a true positive law. To do this they
turned to custom to provide the normative foundation for a universal legal code.
In so doing, however, they transformed what was understood to be ‘custom’ from
a collection of exemplary regulations –which inevitably varied greatly from one
people to another –into ‘an unwritten norm that the jurist could unravel from the
diverse manifestations of human history.’ Out of this emerged a new genre: the
‘Law of Nature and Nations’ which dominated the thinking about the relationship
between peoples and states from the mid sixteenth until the end of the eighteenth
centuries. Custom was now cast, not as the accumulated practices of individual
societies but as the collective expression of the consensus of all peoples (consensus
omnium gentium). It was, as Francesca Iurlaro explains, interpreted ‘as being both
temporally situated –an institution whose foundations resided in Roman law,
Christian religion [and] European classical antiquity –and universal at the same
time.’ Although there were recognized to exist customs that were restricted to in-
dividual communities, and which were, where possible, accepted as valid by the
vi Series Editors’ Preface
Anthony Pagden
Acknowledgments
It is incredibly hard to do justice to all the people and institutions that supported
the publication of this book. It took way more than the proverbial village. However,
I will try, while I take full responsibility for any errors or mistakes it may contain.
This book is a revised version of my PhD dissertation, which I defended in
September 2018 at the European University Institute (EUI), under the supervi-
sion of professor Nehal Bhuta. Nehal Bhuta deserves a special place in this thankful
note. Over the past years, he has always supported and challenged me with his bril-
liant mind and enthusiasm, and always encouraged me to see the theoretical forest
whenever I was getting too lost in my textual trees. I am grateful that I had the
chance to meet him, and to have been exposed to his intellectual generosity.
The openness of the EUI academic environment made this journey even more
engaging. Thanks are due to all the people I met there, professors, fellow re-
searchers, and friends, who have supported me over these years in various and
often unconscious ways. Special thanks are due to the members of my PhD com-
mittee, Benedict Kingsbury, Martti Koskenniemi, and Ann Thomson, who offered
stimulating feedback, guidance, and support to help me turn this thesis into a book
for publication. To achieve this goal, I have benefited from the support of various
institutions which provided me with all the time, financial support, and intellec-
tual excitement I needed to finish it. I am grateful to Anne Peters and Armin von
Bogdandy for their hospitality at the Max Planck Institute for Comparative Public
Law and International Law (MPIL) in Heidelberg back in 2018, where I spent the
summer as a visiting scholar; and for welcoming me again in 2020 as an Alexander
von Humboldt Postdoctoral Fellow. Thanks are due to the Alexander von
Humboldt Stiftung for granting me such fellowship, time, and freedom to think,
and financial support to work with ease. I am immensely grateful to Benedict
Kingsbury, my supervisor at New York University School of Law, where I spent the
academic year 2019–20 as a Global Postdoctoral Fellow, as well as to the Hauser
Global Law School Program for sponsoring the fellowship; and to Marco Geuna
(Università degli Studi di Milano), with whom I had the privilege to work as a re-
search fellow in the first months of 2019.
Thanks are also due to Daniel Allemann, Stefano Bacin, Alessandro Barchiesi,
Erica Benner, Tommaso Braccini, Annabel Brett, Hans Blom, Maria Adele Carrai,
Paolo Carta, Gianmario Cattaneo, Bhupinder S Chimni, Janet Coleman, Emanuele
Conte, Jean D’Aspremont, Grainne de Burca, Wim Decock, Stefano di Bella, Paul
J du Plessis, Vanda Fiorillo, Alberto Frigo, Marco Geuna, Frank Grunert, Pablo
Kalmanovitz, Claus Kreß, Matthias Kumm, Randall Lesaffer, Karin Loevy, Ian
x Acknowledgments
Maclean, Loris Marotti, Panos Merkouris, Christoph Möllers, Luigi Nuzzo, Paolo
Palchetti, Pasquale Pasquino, Anne Peters, Marie Petersmann, Andrea A Robiglio,
Merio Scattola, Florian Schaffenrath, Peter Schröder, Luca Scuccimarra, Luigi
Silvano, Gabriella Silvestrini, Koen Stapelbroek, Benjamin Straumann, Laura
Viidebaum, Armin von Bogdandy, Christopher Warren, Jan Waszink, Joseph H
Weiler, Tleuzhan Zhunussova, and Simone Zurbuchen, who provided valuable
comments on single chapters or on the project itself, and have all definitely helped
me get this book in a better shape. My conversations with Martti Koskenniemi
offered precious intellectual stimulation throughout the process of writing and
thinking about history and international law; I am deeply grateful for his gener-
osity and support. Anthony Pagden provided essential feedbacks to an early draft
of my chapter on Vitoria, and to the project in general. I am grateful for his encour-
agement. Thanks are due to Thomas Duve, who kindly agreed to let me workshop
the first part of the book at the Max Planck Institute for European Legal History in
September 2020. I owe much gratitude to him and the Salamanca Team. Christiane
Birr, Andreas Wagner, José Luis Egío García, Matthias Lutz-Bachmann, Manuela
Bragagnolo, Stephan Vogenauer, and Alexandra Woods all helped me think
through the book, and about its weaknesses and its strengths. I also would like to
thank the amazing editors at OUP Law, Jack McNichols and Merel Alstein, for their
valuable support during the publication process, and the anonymous reviewers for
their precious comments to the book manuscript.
My fellow EUI friends Rían Derrig and Dimitri van den Meerschen, as well as
Mark Somos and Edward Jones Corredera, have read various drafts and sections
of this book and considerably improved its shape: a big, heartfelt thank you to all
of them for their friendship and collegiality, which made me feel less isolated in
this strange world named academia. My discussions with Ed were immensely in-
spiring and helped me look at the main narratives of this book with more clarity
and boldness; his intellectual generosity and support have been essential in the last
weeks prior to submission, and nurtured many of the reflections I discuss in the
introduction and conclusion to this book. I am really grateful that Grotius made
us colleagues. A similar huge thank you to Raphael Schäfer, Silvia Steininger, Julia
Emtseva, Erin Pobjie, and Tom Sparks, for helping me feel at home in Heidelberg
with the kindness of their friendship; and to all the participants of the ‘Tuesday
Round’, our weekly meetings at MPIL, for providing essential feedback to the final
drafts of the book.
My family has always been there for me and I cannot thank enough my father
Benedetto, my mother Maria, and my sister Alessandra for their unconditional
love. A big chunk of this book was revised during our first Covid lockdown to-
gether, while cooking, baking nervously, and occasionally yelling at each other.
I am grateful I could spend that particularly unsettling time, and explore what
it meant existentially, with all of them. Giuliano Graziani, Noemi Macerola, and
Antonella Patrizi have provided essential, both personal and professional, support
Acknowledgments xi
in the final stages of revision of the manuscript. Grazie davvero. Claire Vergerio
would deserve a whole book of thank yous, one that would stretch way beyond
the scope of this one. Most of the thoughts I explore in this book were nurtured by
our conversations, while skinning bellpeppers on a kitchen counter, eating burrata,
dancing in the streets of Brooklyn, or recording endless voice notes for each other.
Merci, my dear friend.
I am also extremely grateful to Luca Bombardieri, whose love and amazing
support have accompanied me throughout the process of thinking of and writing
this book. Finally, I am grateful to Alessio and Leo, two little men with blue eyes
and an unquenchable thirst for pasta whom I was lucky enough to meet while
I was working on this book. They taught me a thing or two about love and light-
heartedness. In the perhaps futile attempt to freeze in time the memories of all the
pasta dishes we had together, and to prevent these moments from vanishing com-
pletely as time goes by, I dedicate this book to them.
Contents
PA RT I C U S T OM , C O N S C I E N C E , A N D NAT U R A L L AW
1. The Problematic of Custom in Roman and Canon Law 21
1.1 Custom in Roman law 21
1.2 Custom in the Middle Ages 23
1.3 Custom and empire: how natural law and ius gentium became
customary 28
1.4 Possession, prescription, custom: the problem of time 29
1.5 Local customs and universalizing the native past: law and
historiography as imperial projects 34
1.6 Custom as a case of conscience: natural law, moral persuasion, and
the power of confession 37
2. ‘Like Beginners in Arabic’. Custom and Reason in Francisco de
Vitoria’s Doctrine of ius gentium 43
2.1 A clarification on Vitoria’s texts 43
2.2 Vitoria reads Aquinas (1): on reason and consensus 46
2.3 Vitoria reads Aquinas (2): on natural law and habitus 49
2.4 Consensual ius gentium: a counterfactual proof 51
2.5 A custom under the law of nations: slavery in Vitoria, de Soto,
and Báñez 55
3. Obligation through Agreement, Agreement on Obligation: Ius
gentium as custom in Francisco Suárez 63
3.1 Conscience and habitus: custom in Suárez 63
3.2 Is the ‘international’ community perfect? Ius gentium as custom, and
its source of obligation 66
3.3 The naturalism of habitus and the self-legitimizing role of the will 70
3.4 How to do things with custom: ius gentium and change 71
xiv Contents
PA RT I I R H E T O R IC A N D
H UM A N I SM : H I S T O R IC I Z I N G C U S T OM
4. Custom as Historiography: Alberico Gentili 77
4.1 Custom and the historical exemplarity of humanism 77
4.2 Historiographic pragmatism and ‘the others’: Alberico Gentili on
custom 89
4.3 Gentili’s ius gentium: justice, empire, and humanitas 95
4.4 Gentili’s custom 101
5. A Literary History of Custom: Hugo Grotius 105
5.1 Consuetudo, mos, consensus: custom as a distinctive feature of the law
of nations 105
5.2 Grotius, Dio Chrysostom, and the ‘invention’ of custom 108
5.3 The ‘poetic’ of natural custom vs the conjectural assessment of the
voluntary customary law of nations: two examples from Grotius’ De
iure belli ac pacis 115
PA RT I I I T H E ‘B I RT H’ O F C U S T OM A RY I U S G E N T I UM A S
AN INDEPENDENT LEGAL REGIME
6. A Turn Inward: the Europeanization of Customary ius gentium 127
6.1 Custom as a social construct: reputation, official historiography, and
the birth of state practice 127
6.2 Custom, love, and perfection: the problem of obligation 134
6.3 Against stylistic dryness: how custom freed itself from antiquity 136
7. Custom in Concentric Circles: Samuel Pufendorf ’s Customary ius
gentium Between Glory and State Interests 141
7.1 Pufendorf ’s main conceptual innovations 141
7.2 Natural law as the science of morality 142
7.3 Law of nations in times of peace: international agreements and
reason of state 146
7.4 The problem of consensus: Pufendorf ’s method 151
7.5 Law of nations in times of war: customary ius gentium and social
reputation 156
8. Christian Wolff and His ius gentium consuetudinarium 162
8.1 Wolff ’s philosophization of customary ius gentium 162
8.2 Wolff ’s system: the psychological foundations of natural law 164
8.2.1 Consensus 168
8.2.2 Perfectio 169
8.2.3 Concursus 170
8.3 Laws of nature, natural law, and ius gentium: the perfection of civitas
maxima 172
Other documents randomly have
different content
effect on the petrefactions, which lay elevated above, and in a
manner glued on the stones. [32]
The mountains near the shore are amazingly high and large,
consisting of a compact grey rock-stone, which does not ly in strata
as the lime-stone, and the chief of whose constituent parts are a
grey quartz, and a dark glimmer. This rock-stone reached down to
the water, in places where the mountains flood close to the shore;
but where they were at some distance from it, they were supplied by
strata of grey and black lime-stone, which reached to the water side,
and which I never have seen covered with the grey rocks.
The Zizania aquatica grows in mud, and in the most rapid parts of
brooks, and is in full bloom about this time.
July the 17th. The distempers which rage among the Indians are
rheumatisms and pleurisies, which arise from their being obliged
frequently to ly in moist parts of the woods at night; from the
sudden changes of heat and cold, to which the air is exposed here;
and from their being frequently loaded with too great a quantity of
strong liquor, in which case they commonly ly down naked in the
open air, without any regard to the season, or the weather. These
distempers, especially the pleurisies, are likewise very common
among the French here; and the governor told me [33]he had once
had a very violent fit of the latter, and that Dr. Sarrasin had cured
him in the following manner, which has been found to succeed best
here. He gave him sudorifics, which were to operate between eight
and ten hours; he was then bled, and the sudorifics repeated; he
was bled again, and that effectually cured him.
We are very well acquainted in Sweden with the pain caused by the
Tæniæ, or a kind of worms. They are less abundant in the British
North-American colonies; but in Canada they are very frequent.
Some of these worms, which have been evacuated by a person,
have been several yards long. It is not known, whether the Indians
are afflicted with them, or not. No particular remedies against them
are known here, and no one can give an account from whence they
come, though the eating of some fruits contributes, as is
conjectured, to create them.
The soil about fort St. Frederic is said to be very fertile, on both
sides of the river; and before the last war a great many French
families, especially old soldiers, have settled there; but the king
obliged them to go into Canada, or to settle close to the fort, and to
ly in it at night. A great number of them returned at this time, and it
was thought that about forty or fifty families would go to settle here
this autumn. Within one or two musket-shots to the east of the fort,
is a wind-mill, built of stone with very thick walls, and most of the
flour which is wanted to supply the fort is ground here. This wind-
mill is so contrived, as to serve the purpose of a redoubt, and at the
top of it are five or six small pieces of cannon. During the last war,
there was a number of soldiers quartered in this mill, because they
could from thence look a great way up the river, and observe
whether the English boats approached; which could not be done
from the fort itself, and which was a matter of great consequence,
as the English might (if this guard had not been placed here) have
gone in their little [37]boats close under the western shore of the
river, and then the hills would have prevented their being seen from
the fort. Therefore the fort ought to have been built on the spot
where the mill stands, and all those who come to see it, are
immediately struck with the absurdity of its situation. If it had been
erected in the place of the mill, it would have commanded the river,
and prevented the approach of the enemy; and a small ditch cut
through the loose limestone, from the river (which comes out of the
lake St. Sacrement) to lake Champlain, would have surrounded the
fort with flowing water, because it would have been situated on the
extremity of the neck of land. In that case the fort would always
have been sufficiently supplied with fresh water, and at a distance
from the high rocks, which surround it in its present situation. We
prepared to-day to leave this place, having waited during some days
for the arrival of the yacht, which plies constantly all summer
between the forts St. John 12 and St. Frederic: during our stay here,
we had received many favours. The governor of the fort, Mr.
Lusignan, a man of learning and of great [38]politeness, heaped
obligations upon us, and treated us with as much civility as if we had
been his relations. I had the honor of eating at his table during my
stay here, and my servant was allowed to eat with his. We had our
rooms, &c. to ourselves, and at our departure the governor supplied
us with ample provisions for our journey to fort St. John. In short,
he did us more favours than we could have expected from our own
countrymen, and the officers were likewise particularly obliging to
us.
About eleven o’clock in the morning we set out, with a fair wind. On
both sides of the lake are high chains of mountains; with the
difference which I have before observed, that on the eastern shore,
is a low piece of ground covered with a forest, extending between
twelve and eighteen English miles, after which the mountains begin;
and the country behind them belongs to New England. This chain
consists of high mountains, which are to be considered as the
boundaries between the French and English possessions in these
parts of North America. On the western shore of the lake, the
mountains reach quite to the water side. The lake at first is but a
French mile broad, but always encreases afterwards. The country is
inhabited [39]within a French mile of the fort, but after that, it is
covered with a thick forest. At the distance of about ten French miles
from fort St. Frederic, the lake is four such miles broad, and we
perceive some islands in it. The captain of the yacht said there were
about sixty islands in that lake, of which some were of a
considerable size. He assured me that the lake was in most parts so
deep, that a line of two hundred yards could not fathom it; and close
to the shore, where a chain of mountains generally runs across the
country, it frequently has a depth of eighty fathoms. Fourteen French
miles from fort St. Frederic we saw four large islands in the lake,
which is here about six French miles broad. This day the sky was
cloudy, and the clouds, which were very low, seemed to surround
several high mountains, near the lake, with a fog; and from many
mountains the fog rose, as the smoke of a charcoal-kiln. Now and
then we saw a little river which fell into the lake: the country behind
the high mountains, on the western side of the lake, is, as I am told,
covered for many miles together with a tall forest, intersected by
many rivers and brooks, with marshes and small lakes, and very fit
to be inhabited. The shores are [40]sometimes rocky, and sometimes
sandy here. Towards night the mountains decreased gradually; the
lake is very clear, and we observed neither rocks nor shallows in it.
Late at night the wind abated, and we anchored close to the shore,
and spent one night here.
July the 20th. This morning we proceeded with a fair wind. The
place where we passed the night, was above half way to fort St.
John; for the distance of that place from fort St. Frederic, across lake
Champlain is computed to be forty-one French miles; that lake is
here about six English miles in breadth. The mountains were now
out of sight, and the country low, plain, and covered with trees. The
shores were sandy, and the lake appeared now from four to six miles
broad. It was really broader, but the islands made it appear
narrower.
When we were yet ten French miles from fort St. John, we law some
houses on the western side of the lake, in which the French had
lived before the last war, and which they then abandoned, as it was
by no means safe: they now returned to them again. These were the
first houses and settlements which we saw after we had left those
about fort St. Frederic.
The yacht which we went in to St. John was the first that was built
here, and employed on lake Champlain, for formerly they made use
of bateaux to send provisions over the lake. The Captain of the yacht
was a Frenchman, born in this country; he had built it, and taken the
soundings of the lake, in order to find out the true road, between
fort St. John and fort St. Frederic. Opposite the windmill the lake is
about three fathoms deep, but it grows more and more shallow, the
nearer it comes to fort St. John.
Seal-skins are here made use of to cover boxes and trunks, and they
often make portmantles of them in Canada. The common people
had their tobacco-pouches made of the same skins. The seals here
are entirely the same with the Swedish or European one, which are
grey with black spots. They are said to be plentiful in the mouth of
the river St. Lawrence, below Quebec, and go up that river as far as
its water is salt. They have not been found in any of the great lakes
of Canada. The French call them Loups marins. 13
The French, in their colonies, spend much more time in prayer and
external worship, than the English, and Dutch settlers in the British
colonies. The latter have neither morning nor evening prayer in their
ships and yachts, and no difference is made between Sunday and
other days. They never, or very seldom, say grace at dinner. On the
contrary, the French here have prayers every morning and night on
board their shipping, and on Sundays they pray more than
commonly: they regularly say grace at their meals; and every one of
[44]them says prayers in private as soon as he gets up. At fort St.
Frederic all the soldiers assembled together for morning and evening
prayers. The only fault was, that most of the prayers were read in
Latin, which a great part of the people do not understand. Below the
aforementioned wind-mill, the breadth of the lake is about a musket-
shot, and it looks more like a river than a lake. The country on both
sides is low and flat, and covered with woods. We saw at first a few
scattered cottages along the shore; but a little further, the country is
inhabited without interruption. The lake is here from six to ten foot
deep, and forms several islands. During the whole course of this
voyage, the situation of the lake was always directly from S. S. W. to
N. N. E.
The lake was now so shallow in several places, that we were obliged
to trace the way for the yacht, by sounding the depth [45]with
branches of trees. In other places opposite, it was sometimes two
fathom deep.
In the evening, about sun set, we arrived at fort St. Jean, or St.
John, having had a continual change of rain, sun-shine, wind, and
calm, all the afternoon.
July the 21st. St. John is a wooden fort, which the French built in
1748, on the western shore of the mouth of lake Champlain, close to
the water-side. It was intended to cover the country round about it,
which they were then going to people, and to serve as a magazine
for provisions and ammunition, which were usually sent from
Montreal to fort St. Frederic; because they may go in yachts from
hence to the last mentioned place, which is impossible lower down,
as about two gun-shot further, there is a shallow full of stones, and
very rapid water in the river, over which they can only pass in
bateaux, or flat vessels. Formerly fort Chamblan, which lies four
French miles lower, was the magazine of provisions; but as they
were forced first to send them hither in bateaux, and then from
hence in yachts, and the road to fort Chamblan from Montreal being
by land, and much round about, this fort was erected. It has a low
situation, and lies [46]in a sandy soil, and the country about it is
likewise low, flat; and covered with woods. The fort is quadrangular,
and includes the space of one arpent square. In each of the two
corners which look towards the lake is a wooden building, four
stories high, the lower part of which is of stone to the height of
about a fathom and a half. In these buildings which are polyangular,
are holes for cannon and lesser fire-arms. In each of the two other
corners towards the country, is only a little wooden house, two
stories high. These buildings are intended for the habitations of the
soldiers, and for the better defence of the place; between these
houses, there are poles, two fathoms and a half high, sharpened at
the top, and driven into the ground close to one another. They are
made of the Thuya tree, which is here reckoned the best wood for
keeping from putrefaction, and is much preferable to fir in that point.
Lower down the palisades were double, one row within the other.
For the convenience of the soldiers, a broad elevated pavement, of
more than two yards in height, is made in the inside of the fort all
along the palisades, with a balustrade. On this pavement the soldiers
stand and fire through the holes upon the enemy, without being
exposed to [47]their fire. In the last year, 1748, two hundred men
were in garrison here; but at this time there were only a governor, a
commissary, a baker, and six soldiers to take care of the fort and
buildings, and to superintend the provisions which are carried to this
place. The person who now commanded at the fort, was the
Chevalier de Gannes, a very agreeable gentleman, and brother-in-
law to Mr. Lusignan, the governor of fort St. Frederic. The ground
about the fort, on both sides of the water, is rich and has a very
good soil; but it is still without inhabitants, though it is talked of, that
it should get some as soon as possible.
The French in all Canada call the gnats Marangoins, which name, it
is said, they have borrowed from the Indians. These insects are in
such prodigious numbers in the woods round fort St. John, that it
would have been more properly called fort de Marangoins. The
marshes and the low situation of the country, together with the
extent of the woods, contribute greatly to their multiplying so much;
and when the woods will be cut down, the water drained, and the
country cultivated, they probably will decrease in number, and vanish
at last, as they have done in other places. [48]
July the 22d. This evening some people arrived with horses from
Prairie, in order to fetch us. The governor had sent for them at my
desire, because there were not yet any horses near fort St. John, the
place being only a year old, and the people had not had time to
settle near it. Those who led the horses, brought letters to the
governor from the governor-general of Canada, the Marquis la
Galissonniere, dated at Quebec the fifteenth of this month, and from
the vice-governor of Montreal, the Baron [49]de Longueil, dated the
twenty-first of the same month. They mentioned that I had been
particularly recommended by the French court, and that the
governor should supply me with every thing I wanted, and forward
my journey; and at the same time the governor received two little
casks of wine for me, which they thought would relieve me on my
journey. At night we drank the kings of France and Sweden’s health,
under a salute from the cannon of the fort, and the health of the
governor-general and others.
July the 23d. This morning we set out on our journey to Prairie, from
whence we intended to proceed to Montreal; the distance of Prairie
from fort St. John, by land, is reckoned six French miles, and from
thence to Montreal two lieues (leagues) and a half, by the river St.
Lawrence. At first we kept along the shore, so that we had on our
right the Riviere de St. Jean (St. John’s river). This is the name of
the mouth of the lake Champlain, which falls into the river St.
Lawrence, and is sometimes called Riviere de Champlain (Champlain
river.) After we had travelled about a French mile, we turned to the
left from the shore. The country was always low, woody, and pretty
wet, though it was [50]in the midst of summer; so that we found it
difficult to get forward. But it is to be observed that fort St. John was
only built last summer, when this road was first made, and
consequently it could not yet have acquired a proper degree of
solidity. Two hundred and sixty men were three months at work, in
making this road; for which they were fed at the expence of the
government, and each received thirty sols every day; and I was told
that they would again resume the work next autumn. The country
hereabouts is low and woody, and of course the residence of millions
of gnats and flies, which were very troublesome to us. After we had
gone about three French miles, we came out of the woods, and the
ground seemed to have been formerly a marsh, which was now
dried up. From hence we had a pretty good prospect on all sides. On
our right hand at a great distance we saw two high mountains, rising
remarkably above the rest; and they were not far from fort
Champlain. We could likewise from hence see the high mountain
which lies near Montreal; and our road went on nearly in a straight
line. Soon after, we got again upon wet and low grounds, and after
that into a wood which consisted chiefly of [51]the fir with leaves
which have a silvery underside. 15 We found the soil which we passed
over to-day, very fine and rich, and when the woods will be cleared
and the ground cultivated, it will probably prove very fertile. There
are no rocks, and hardly any stones near the road.
About four French miles from fort St. John, the country makes quite
another appearance. It is all cultivated, and a continual variety of
fields with excellent wheat, pease, and oats, presented itself to our
view; but we saw no other kinds of corn. The farms stood scattered,
and each of them was surrounded by its corn fields, and meadows;
the houses are built of wood and very small. Instead of moss, which
cannot be got here, they employ clay for stopping up the crevices in
the walls. The roofs are made very much sloping, and covered with
straw. The soil is good, flat, and divided by several rivulets; and only
in a few places there are some little hills. The prospect is very fine
from this part of the road, and as far as I could see the country, it
was cultivated; all the fields were covered with corn, and they
generally use summer-wheat here. The ground is [52]still very fertile,
so that there is no occasion for leaving it ly as fallow. The forests are
pretty much cleared, and it is to be feared that there will be a time,
when wood will become very scarce. Such was the appearance of
the country quite up to Prairie, and the river St. Lawrence, which last
we had now always in sight; and, in a word this country was, in my
opinion the finest of North-America, which I had hitherto seen.
The men are extremely civil, and take their hats off to every person
indifferently whom they meet in the streets. It is customary to return
a visit the day after you have received one; though one should have
some scores to pay in one day. [58]
I have been told by some among the French, who had gone a
beaver-hunting with the Indians to the northern parts of Canada,
that the animals, whose skins they endeavour to get, and which are
there in great plenty, are beavers, wild cats, or lynxs, and martens.
These animals are the more valued, the further they are caught to
the north, for their skins have better hair, and look better than those
which are taken more southward, and they became gradually better
or worse, the more they are northward or southward.
White Patridges 17 is the name which the French in Canada give to a
kind of birds, abounding during winter near Hudson’s Bay, and which
are undoubtedly our Ptarmigans, or Snow-hens (Tetrao Lagopus).
They are very plentiful at the time of a great frost, and when a
considerable quantity of snow happens to fall. They are described to
me as having rough white feet, and being white all over, except
three or four black feathers in the tail; and they are reckoned very
fine eating. From Edward’s Natural History of Birds (pag. 72.) it
appears, that the ptarmigans are common about Hudson’s Bay 18. [59]
Hares are likewise said to be plentiful near Hudson’s Bay, and they
are abundant even in Canada, where I have often seen, and found
them perfectly corresponding with our Swedish hares. In summer
they have a brownish grey, and in winter a snowy white colour, as
with us 19.
July the 27th. The common house-flies have but been observed in
this country about one hundred and fifty years ago, as I have been
assured by several persons in this town, and in Quebec. All the
Indians assert the same thing, and are of opinion that the
[60]common flies first came over here, with the Europeans and their
ships, which were stranded on this coast. I shall not dispute this;
however, I know, that whilst I was in the desarts between Saratoga
and Crownpoint, or fort St. Frederic, and sat down to rest or to eat,
a number of our common flies always came, and settled on me. It is
therefore dubious, whether they have not been longer in America
than the term above mentioned, or whether they have been
imported from Europe. On the other hand, it may be urged that the
flies were left in those desarts at the time when fort Anne was yet in
a good condition, and when the English often travelled there and
back again; not to mention that several Europeans, both before and
after that time, had travelled through those places, and carried the
flies with them, which were attracted by their provisions.
Wild Cattle are abundant in the southern parts of Canada, and have
been there since times immemorial. They are plentiful in those parts,
particularly where the Illinois Indians live, which are nearly in the
same latitude with Philadelphia; but further to the north they are
seldom observed. I saw the skin of a wild ox to-day; it was as big as
one of the largest ox hides in Europe, [61]but had better hair. The
hair is dark brown, like that on a brown bear-skin. That which is
close to the skin, is as soft as wool. This hide was not very thick;
and in general they do not reckon them so valuable as bear-skins in
France. In winter they are spread on the floors, to keep the feet
warm. Some of these wild cattle, as I am told, have a long and fine
wool, as good, if not better, than sheep wool. They make stockings,
cloth, gloves, and other pieces of worsted work of it, which look as
well as if they were made of the best sheep wool; and the Indians
employ it for several uses. The flesh equals the best beef in
goodness and fatness. Sometimes the hides are thick, and may be
made use of as cow-hides are in Europe. The wild cattle in general
are said to be stronger and bigger, than European cattle, and of a
brown red colour. Their horns are but short, though very thick close
to the head. These and several other qualities, which they have in
common with, and in greater perfection than the tame cattle, have
induced some to endeavour to tame them; by which means they
would obtain the advantages arising from their goodness of hair,
and, on account of their great strength, be able to employ them
[62]successfully in agriculture. With this view some have repeatedly
got young wild calves, and brought them up in Quebec, and other
places, among the tame cattle; but they commonly died in three or
four years time; and though they have seen people every day, yet
they have always retained a natural ferocity. They have constantly
been very shy, pricked up their ears at the sight of a man, and
trembled, or run about; so that the art of taming them has not
hitherto been found out. Some have been of opinion, that these
cattle cannot well bear the cold; as they never go north of the place
I mentioned, though the summers be very hot, even in those
northern parts. They think that, when the country about the Illinois
will be better peopled, it will be more easy to tame these cattle, and
that afterwards they might more easily be used to the northerly
climates 20. The Indians and French in Canada, make use of the
horns of these creatures to put gun-powder in. I have briefly
mentioned the wild cattle in the former parts of this journey 21. [63]
The peace, which was concluded between France and England, was
proclaimed this day. The soldiers were under arms; the artillery on
the walls was fired off, and some salutes were given by the small
fire-arms. All night some fireworks were exhibited, and the whole
town was illuminated. All the streets were crowded with people, till
late at night. The governor invited me to supper, and to partake of
the joy of the inhabitants. There were present a number of officers,
and persons of distinction; and the festival concluded with the
greatest joy.
The Waterbeech was planted here in a shady place, and was grown
to a great height. All the French hereabouts call it Cotonier 22. It is
never found wild near the river St. Lawrence; nor north of fort St.
Frederic, where it is now very scarce.
The red Cedar is called Cedre rouge by the French, and it was
likewise planted in the governor’s garden, whither it had been
brought from more southern parts, for it is not to be met with in the
forests hereabouts. [66]However, it came on very well here.
About half an hour after seven in the evening we left this pleasant
island, and an hour after our return the baron de Longueuil received
two agreeable pieces of news at once. The first was, that his son,
who had been two years in France, was returned; and the second,
that he had brought with him the royal patents for his father, by
which he was appointed governor of Montreal, and the country
belonging to it.
They make use of fans here, which are made of the tails of the wild
turkeys. As soon as the birds are shot, their tails are spread like
fans, and dried, by which means they keep their figure. The ladies
and the men of distinction in town wear these fans, when they walk
in the streets, during the intenseness of the heat.
July the 30th. The wild Plumb-trees grow in great abundance on the
hills, along the rivulets about the town. They were so loaded with
fruit, that the boughs were quite bent downwards by the weight.
The fruit was not yet ripe, but when it comes to that perfection, it
has a red colour and a fine taste, and preserves are sometimes
made of it.
Black Currants (Ribes nigrum, Linn.) are plentiful in the same places,
and its berries were ripe at this time. They are very small, and not
by far so agreeable as those in Sweden.
They commonly give one hundred and fifty livres a year to a faithful
and diligent footman, and to a maid-servant of the same character
one hundred livres. A journeymen to an artist gets three or four
livres a day, and a common labouring man gets thirty or forty sols a
day. The scarcity of labouring people occasions the wages to be so
high; for almost every body finds [71]it so easy to set up as a farmer
in this uncultivated country, where he can live well, and at a small
expence, that he does not care to serve and work for others.
In the town is a Nunnery, and without [74]its walls half a one; for
though the last was quite ready, however, it had not yet been
confirmed by the pope. In the first they do not receive every girl that
offers herself; for their parents must pay about five hundred ecus, or
crowns, for them. Some indeed are admitted for three hundred ecus,
but they are obliged to serve those who pay more than they. No
poor girls are taken in.
The king has erected a hospital for sick soldiers here. The sick
person there is provided with every thing he wants, and the king
pays twelve sols every day for his stay, attendance, &c. The
surgeons are paid by the king. When an officer is brought to this
hospital, who is fallen sick in the service of the crown, he receives
victuals and attendance gratis: but if he has got a sickness in the
execution of his private concerns, and comes to be cured here, he
must pay it out of his own purse. When there is room enough in the
hospital, they likewise take in some of the sick inhabitants of the
town and country. They have the medicines, and the attendance of
the surgeons, gratis, but must pay twelve sols per day for meat, &c.
The declination of the magnetic needle was here ten degrees and
thirty-eight minutes, west. Mr. Gillion, one of the priests here, who
had a particular taste for mathematicks and astronomy, had drawn a
meridian in the garden of the seminary, which he said he had
examined repeatedly by the sun and stars, and found to be very
exact. I compared my compass with it, taking care, that no iron was
near it, and found its declination just the same, as that which I have
before mentioned.
Several of the friars here told me, that the summers were
remarkably longer in Canada, since its cultivation, than they used to
be before; it begins earlier, and ends later. The winters on the other
hand are much shorter; but the friars were of opinion, that they
were as hard as formerly, though they were not of the same
duration; and likewise, that the summer at present was no hotter,
than it used to be. The coldest winds at Montreal are those from the
north and north-west.
August the 2d. Early this morning we left Montreal, and went in a
bateau on our journey to Quebec, in company with the second major
of Montreal, M. de Sermonvile. [78]We fell down the river St.
Lawrence, which was here pretty broad on our left; on the north-
west side was the isle of Montreal, and on the right a number of
other isles, and the shore. The isle of Montreal was closely inhabited
along the river; and it was very plain, and the rising land near the
shore consisted of pure mould, and was between three or four yards
high. The woods were cut down along the river-side, for the distance
of an English mile. The dwelling-houses were built of wood, or
stone, indiscriminately, and white-washed on the outside. The other
buildings, such as barns, stables, &c. were all of wood. The ground
next to the river was turned either into corn-fields, or meadows.
Now and then we perceived churches on both sides of the river, the
steeples of which were generally on that side of the church, which
looked towards the river, because they are not obliged here to put
the steeples on the west end of the churches. Within six French
miles of Montreal we saw several islands of different sizes on the
river, and most of them were inhabited; and if some of them were
without houses on them, they were sometimes turned into corn-
fields, but generally into meadows. We saw no mountains, hills,
rocks, or stones to-day, the [79]country being flat throughout, and
consisting of pure mould.
All the farms in Canada stand separate from each other, so that each
farmer has his possessions entirely distinct from those of his
neighbour. Each church, it is true, has a little village near it; but that
consists chiefly of the parsonage, a school for the boys and girls of
the place, and of the houses of tradesmen, but rarely of farm-
houses; and if that was the case, yet their fields were separated.
The farm-houses hereabouts are generally built all along the rising
banks of the river, either close to the water or at some distance from
it, and about three or four arpens from each other. To some farms
are annexed small orchards; but they are in general without them;
however, almost every farmer has a kitchen-garden.
I have been told by all those who have made journies to the
southern parts of Canada, and to the river Mississippi, that the
woods there abound with peach-trees, which bear excellent fruit,
and that the Indians of those parts say, that those trees have been
there since times immemorial.
There are several Crosses put up with the road side, which is parallel
to the shores of the river. These crosses are very common in
Canada, and are put up to excite devotion in the travellers. They are
made of wood, five or six yards high, and proportionally broad. In
that side which looks towards the road is a square hole, in which
they place an image of our Saviour, the cross, or of the holy Virgin,
with the child in her arms; and before that they put a piece of glass,
to prevent its being spoiled by the weather. Those crosses which are
not far from churches, are very much adorned, and they put up
about them all the instruments which they think the Jews employed
in crucifying our Saviour, such as a hammer, tongs, nails, a flask of
vinegar, and perhaps many more than were really made use of. A
figure of the cock, which crowed when St. Peter denied our Lord, is
commonly put at the top of the cross.
The country on both sides was very delightful [81]to-day, and the fine
state of its cultivation, added greatly to the beauty of the scene. It
could really be called a village, beginning at Montreal, and ending at
Quebec, which is a distance of more than one hundred and eighty
miles; for the farm-houses are never above five arpens, and
sometimes but three, asunder, a few places excepted. The prospect
is exceedingly beautiful, when the river goes on for some miles
together in a strait line, because it then shortens the distances
between the houses, and makes them form exactly one continued
village.
All the women in the country, without exception, wear caps of some
kind or other. Their jackets are short, and so are their petticoats,
which scarce reach down to the middle of their legs; and they have
a silver cross hanging down on the breast. In general they are very
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