The Foundations of Parliamentarism in Quebec, 1764–1791

Article 5 / 11 , Vol 43 No. 2 (Summer)

The Foundations of Parliamentarism in Quebec, 1764–1791

Employing research from his doctoral dissertation, the author breaks with the consensus position that the first meeting of the House of Assembly of Lower Canada on December 17, 1792, marks the beginning of parliamentarism in Quebec. Instead, he traces a rudimentary form of parliamentarism back to 1764 and shows how it developed over nearly 30 years.

On December 17, 1792, the first members of the House of Assembly of Lower Canada met in the chapel of the episcopal palace in Quebec City. This historic event is considered the beginning of parliamentarism in Quebec. But I must break with this consensus interpretation. In my doctoral dissertation on the origins of parliamentarism in Quebec, entitled Aux sources du parlementarisme dans la Province de Québec, 1764–1791, I show that the foundations of parliamentarism in the province precede the Constitutional Act of 1791.1

I do not contest the fact that “parliamentarism” and “democracy” are concepts that have commingled since 1758 in Nova Scotia, 1773 in Prince Edward Island, 1786 in New Brunswick and 1792 in Lower Canada and Upper Canada. However, in the period after a British civilian government was installed in the Province of Quebec in 1764, it seems that parliamentarism could be separated from elective democracy.

A review of the minutes of the Council of Quebec (1764–1775)2 and the minutes of the Legislative Council of the Province of Quebec (1775–1791) reveals that the members of these institutions legislated by following British parliamentary practice.3 This means that, in the Province of Quebec between 1764 and 1791, there existed a rudimentary parliamentarism, but a parliamentarism nonetheless, in its form, conventions, practices, and traditions.

Parliamentarism in the XVIII century

What was parliamentarism in the Great Britain of King George III? What was parliamentarism in the royal provinces of North America in the XVIII century? What was parliamentarism in the Province of Quebec between 1764 and 1791? Three different answers to these three questions are needed to fully explain the unique characteristics of parliamentarism in each of these locations during this period.

British parliamentarism was malleable. It was flexible enough to address and adjust to the various colonial experiences. The specific context in the Province of Quebec gave rise to a more rudimentary parliamentarism than that of the Thirteen Colonies. And the specific context of the Thirteen Colonies gave rise to a more rudimentary parliamentarism than that of Westminster. Parliamentarism existed in multiple forms in the XVIII century.

The Province of Quebec’s legislative history begins with an interpretation of Governor James Murray’s royal instructions which, as of 1764, gave the Council of Quebec the power to make ordinances. While the Council of Quebec exercised both legislative and executive powers, its members did not hesitate to call their institution a “legislature.”

The Westminster Parliament changed the constitution of the Province of Québec in 1774. The Quebec Act stipulated that the Council of Quebec did not have the power to legislate. This constitutional law established the Legislative Council of the Province of Quebec. This legislature made up of unelected members was legally empowered to legislate from 1775 to 1791.

The issue turns on the definition of these concepts. What is a parliament? What is a legislature? In my dissertation, I accept the idea that there may be differences between a parliament and a legislature. Or, rather, I can identify the many similarities between a parliament and a legislature.

A legislature is defined as “a country’s legislative body.” Is the National Assembly of Québec a parliament or a legislature? It is both according to the Act respecting the National Assembly of 1982: “The National Assembly and the Lieutenant-Governor form the Parliament of Québec. The Parliament of Québec assumes all the powers conferred on the Legislature of Québec.”4 The concepts of “Parliament” and “Legislature” are portrayed as being on a continuum.

Does this mean that “Parliament” and “Legislature” are two sides of the same coin? Arthur Beauchesne, Clerk of the House of Commons in Ottawa from 1925 to 1949, argued that Canadian provincial legislatures are not parliaments.5 Today, provincial legislative assemblies are recognized as parliaments. Moreover, I am entirely comfortable placing the adjective “parliamentary” next to the practices, procedures and traditions of the legislators of the Province of Quebec from 1764 to 1791.

Accordingly, I am calling into question the strict definition of parliamentarism, in the specific context of the administration of the Province of Quebec from 1764 to 1791. Under the Second British Empire, parliamentarism and democracy did not necessarily go hand in hand.

Parliamentary frameworks

The Canadian Compendium of Procedure states that the “parliamentary framework” is defined by the fact that Canada’s parliamentary system stems from the British, or “Westminster,” tradition. This definition encompasses those of “Constitution,” “Crown,” “legislative branch,” “executive branch,” “responsible government,” “political party” and “opposition.” The compendium highlights another fundamental aspect of parliamentary practice: “Some of Canada’s most important rules are not matters of law but are conventions or practices.”6

Most of these key parliamentary principles underpinned the operation of the Council of Quebec and the Legislative Council. In other words, a parliamentary backdrop was set up in Quebec City in 1764. As for the actors who came onto the capital’s stage, I found that they immersed themselves in their roles as parliamentarians.

It should be noted at the outset that debating and legislating is associated with jargon unique to British parliamentary practice. To determine whether the nouns and verbs that emerged from customs at the Westminster Parliament were transplanted to the Province of Quebec, my corpus was submitted to a battery of lexicographical analyses.

The main terms of the parliamentary lexicon in use in Lower Canada and Westminster were identified. A bank of 126 terms was established. Next, 30 terms specifically associated with speech, debate, deliberation and parliamentary actions and procedures were selected. The frequency of these terms in the minutes of the Council of Quebec was determined, and the analysis was repeated for the minutes of the Legislative Council. In all, these 30 terms occurred more than 3,500 times in the minutes of the Council of Quebec and over 13,000 times in the minutes of the Legislative Council.

This growing use of the parliamentary lexicon by the members of the Council of Quebec and, to an even larger degree, the members of the Legislative Council is telling because parliamentary terms are necessarily associated with a parliamentary framework and parliamentary practice.

Parliamentary calendar and ceremonies

Today, parliamentary proceedings in Quebec and Canada unfold by sitting, session and parliament. A similar parliamentary calendar was established in the Province of Quebec.

First, the constitutional framework of 1763 provided for the 280 sessions of the Council of Quebec. Second, the constitutional framework of 1774 led to the 18 parliamentary sessions of the Legislative Council. Third, the constitutional framework of 1791 resulted in the 15 parliaments punctuated by the same number of general elections.

The advent of parliamentary sessions at the Legislative Council explains the appearance of parliamentary ceremonies. After 1775, ceremonies marked the opening of a session with the Speech from the Throne and following the Address in Reply to the Speech from the Throne. Finally, a ceremony marked the conclusion of parliamentary proceedings when the governor issued a prorogation.

By 1791, the British parliamentary framework was nearly complete. To summarize, in 1764, the setting was ready. The members of the Council of Quebec sat in a room of the Castle St. Louis that had the look of a parliament, with seats, a table in the centre, and a throne for the chairperson. In 1775, at the Legislative Council, speeches—such as the Speech from the Throne—and actions—such as the councillors’ journey from the episcopal palace to the Castle St. Louis to give the Address in Reply to the Speech from the Throne—constituted the parliamentary ceremonies of the Province of Quebec. All that was missing was elected members and various accessories, such as the mace and the black rod, which appeared in the Parliament of Lower Canada in 1792.

Written and unwritten rules

The minutes of the Council of Quebec and the Legislative Council contain resolutions, standing orders, and rules adopted to expedite routine business. These written rules, but also unwritten ones, governed the debates and deliberations of the members of these political bodies.

In 1764, none of the members of the Council of Quebec had prior parliamentary experience in London or in other British colonies. Out of necessity, the councillors nevertheless had to adopt a work routine to deal with their regular business. They did not need to invent new parliamentary practices. They simply imitated the “mother of all parliaments.” It seems that these politicians learned by reading the Quebec Gazette and works of parliamentary doctrine.

For example, during votes, the practice of the House of Lords was followed. Voting began with the most junior councillors and ended with the most senior ones. Another custom adopted by the Council of Quebec was to refer matters to a special committee or committee of the whole for study. The same was true of concurrence in the reports that resulted from committee studies.

The Council of Quebec adopted only two written rules. The first (which would not even be adhered to) was passed in 1765 and stated that the council would meet every Wednesday at 10 a.m. The second, passed in 1768, provided that draft ordinances must be translated into French and adopted during the council’s proceedings.

While the members of the Council of Quebec did not feel the need to pass many rules of procedure, this was not the case for the Legislative Council, which better defined itself as a legislature after 1775. New practices appeared.

Among the unwritten rules was the first recorded vote in 1777. During this vote, the legislative councillors used the terms “Aye” and “Naye” from the British House of Commons. Later, in 1782, the first recorded division was noted. In addition, like the lords at Westminster, the legislative councillors had the privilege of registering protests to explain their votes.

However, legislative councillors at the time were aware of the gaps in their procedural knowledge. Accordingly, in 1780 legislative councillor Hugh Finlay tabled in the council chamber a document entitled The manner of debating and passing Bills in Parliament; this was a seven-paragraph article taken from an encyclopedia. It was read in English and translated into French to educate councillors about practices at Westminster. The document would serve as the basis for parliamentary procedure in Quebec.7 A committee was then struck to draft written rules to ensure the council’s business was conducted in a more consistent fashion.

The written Rules of the Legislative Council were adopted on March 23, 1784. These were the first parliamentary rules in the history of Quebec. The rules had 11 provisions and were genuine parliamentary rules—nine of them would be codified in Lower Canada in 1793 as part of the Rules of the House of Assembly or the Rules of the Legislative Council.

Legislative procedure

Starting in 1792, the passage of laws in Lower Canada was governed by rules of procedure. The same was true for ordinances in the Province of Quebec between 1764 and 1791.

The Council of Quebec considered 67 draft ordinances in 67 different ways. The minutes nonetheless show that some aspects of the Westminster Parliament’s procedure were followed. However, between 1766 and 1775, the Council of Quebec did less legislative work. The councillors therefore did not find it necessary to adopt formal legislative rules.

After 1775, parliamentary procedure developed at a remarkable pace. Yet, not until 1778 did procedure move beyond the complacency of the Council of Quebec era. Then, starting in 1779, most draft ordinances were read three times, as at Westminster, but some were still read four times.

The adoption of written rules in 1784 established the required practice. Rule 9 set out an eight-step legislative procedure:

  1. Introduction of the draft by the chair of the committee and first reading (no member may comment);
  2. Clause-by-clause consideration at committee and consideration of its report;
  3. Second reading;
  4. Optional step: Referral to attorney general;
  5. Order to engross;
  6. Third reading (adoption of the ordinance title);
  7. Adoption; and
  8. Royal Assent.

In 1787, Chief Justice William Smith noted an important difference between the way ordinances were adopted in Quebec and the way bills were passed in London and the other colonies. Smith—who was a member of the Legislative Council of the Province of New York before the American Revolution—lamented that, in Quebec, bills were considered at committee after first reading rather than after second reading, which had the effect of limiting debate.

This issue was corrected in 1789. Legislative Councillor William Grant spearheaded the unanimous adoption of a motion to have draft ordinances read twice before being referred to committee. The written rules of the Legislative Council would not be amended again until 1791, simply because they were basically consistent with legislative practice at Westminster.

Finally, let us compare the legislative procedure the Legislative Council of the Province of Quebec used to consider a draft ordinance in 1791 to that used by the Parliament of Lower Canada for a bill in 1793. This comparison will use a single legislative proposal introduced by Councillor René-Amable Boucher de Boucherville in 1791 and 1793: the bill “for repairing and amending the Public Highways and Bridges in the Province of Quebec.”

In 1791, this measure was read twice; it was considered at committee; it was adopted at third reading; and, finally, it was reserved by the governor. Guy Carleton refused to grant it Royal Assent to give it force of law.

After the Constitutional Act of 1791, Boucher de Boucherville was still a legislative councillor, but in the Parliament of Lower Canada. He introduced the same bill in the Upper House: the bill of “An Act to give effect to the regulations relating to Highways and Bridges.” Forgive the repetition, but this measure respecting public highways and bridges was read twice; it was considered at committee; it was adopted at third reading; and—this part is new—it was sent to the Lower House. There, once again, this measure respecting public highways and bridges was read twice by the members; it was considered at committee; it was adopted at third reading. Finally, the legislation was granted Royal Assent by the lieutenant governor to give it force of law.

This comparison raises a question. Why would a legislative process that led to the adoption of the same legislation be considered parliamentary in 1793 but not in 1791? There is no reason to accept this distinction.

Conclusion

Parliamentarism existed in the Province of Quebec between 1764 and 1791. It was a rudimentary parliamentarism that did not involve elections, but it was still parliamentarism in its form and legislative practice. One could say that “the Legislative Council of Quebec continued the genesis of parliamentarism in Quebec begun by the Council of Quebec in 1764 and that it laid the foundation for the operation of future representative institutions.”8 [translation] The members of the Council of Quebec (1764–1775) and the Legislative Council (1775–1791) used many aspects of the procedure, practice, principles and customs of the Westminster Parliament. Although some of the structures and functions of Quebec’s parliamentary regime were undeveloped compared with those of the British Parliament, this was the consequence of the constitutions of the British royal colonies being different from those of the home country or the parliaments of modern states.

Notes

  1. Christian Blais, Aux sources du parlementarisme dans la Province de Québec, 1764–1791, Dissertation (PhD), Quebec, Laval University, 2019, 431 p. https://corpus.ulaval.ca/jspui/handle/20.500.11794/37604 [in French only].
  2. Christian Blais (ed.), Procès-verbaux du Conseil de Québec, 1764–1775, Quebec, Library of the National Assembly of Québec, 2019. http://www.bibliotheque.assnat.qc.ca/guides/fr/document/183 [partly in French only].
  3. Christian Blais (ed.), Procès-verbaux du Conseil législatif de la Province de Québec, 1775–1791, Quebec, Library of the National Assembly of Québec (forthcoming) [partly in French only].
  4. http://legisquebec.gouv.qc.ca/en/ShowDoc/cs/A-23.1.
  5. Arthur Beauchesne, The Provincial Legislatures are not Parliaments, s. l., The Canadian Bar Review, 1944, p. 1.
  6. https://www.ourcommons.ca/About/OurProcedure/ParliamentaryFramework/c_g_parliamentaryframework-e.htm.
  7. Cyclopædia: or, An Universal Dictionary of Arts and Sciences […], 5th Edition, London, D. Midminter […], 1752, Vol. II.
  8. Christian Blais, Gilles Gallichan, Frédéric Lemieux and Jocelyn Saint Pierre, Québec: quatre siècles d’une capitale, Québec, Les Publications du Québec/National Assembly of Québec, 2008, p. 175 [in French only].