This article presents a brief history of the oldest written rules of the first “Canadian provinces” and introduces two unpublished manuscripts on the Rules of Quebec and Lower Canada.
From the fourteenth century until the early nineteenth century, parliamentary procedure in the House of Commons was more a matter of custom and practice rather than explicit written rules.2 It was not until 1810 that the Commons officially codified some of its procedures as Standing Orders.3
Much of the knowledge of parliamentary practice prior to 1810 was based on various works published from the sixteenth century onwards. Among them were Order and Usageby John Hooker (1572), De Republica Anglorum by Thomas Smith (1583), The Manner How Statutes are Enacted in Parliament by Passing of Bills by William Hakewill (1641), Lex parliamentaria attributed to George Petyt (1689) and works by John Hatsell, beginning with A Collection of Cases of Privilege of Parliament, from the earliest records to 1628 (1776). Considered the best authorities,4 these publications are also known to have circulated in America. A shared British colonial administration combined with these procedural sources explains why parliamentary procedure was fundamentally the same from one colony to another.
In the eighteenth century, parliamentary business in Nova Scotia, Île Saint-Jean (Prince Edward Island), Quebec, New Brunswick, Upper Canada and Lower Canada was governed by about 10 written rules. This codification of parliamentary customs and practices in British North America actually predates that of the British House of Commons.
The purpose of this article is to present a brief history of the oldest written rules of the first “Canadian provinces”. At the same time, two unpublished manuscripts on the Rules of Quebec and Lower Canada will also be introduced.
Rules of the House of Assembly of Nova Scotia
The parliamentary traditions of Nova Scotia are the oldest in Canada. From 1719 to 1758, the members of the Council of Twelve – granted legislative and executive powers to run the province – employed the elements of procedure used at Westminster.
For example, one member acts as Speaker and presides over the House, motions are introduced, minutes are prepared, and committees of the whole are created to study regulations. However, there are no formal written rules in the minutes about this “Governor in Council”.5
The first 22 members of the House of Assembly of Nova Scotia met on October 2, 1758. They did not consider it appropriate to immediately adopt rules to frame their business. It was not until November 5, 1763 that four resolutions were passed by the members of the 3rd Parliament to serve as rules of operation.6
The sole objective of these four resolutions was to reduce absenteeism. In order to promote “the better Attendance of the Members on the Service of the Public, during the sitting of the General-Assembly”, the Speaker could, subject to censure, require that an absent member be present.7 The seat of the member who subsequently failed to attend would be declared vacant, unless he had an excuse that was deemed valid by the Assembly. Elected representatives were also required from that time on to request leave from the Speaker.
Twenty years later, during the 1784 session, some 15 “standing rules and orders” were adopted. They concerned the recording of roll call votes and motions, distribution of the Assembly Journal, keeping attendance records for Assembly members (who were required to sit from opening to closing) and allowances.8 The public could request permission to attend parliamentary sittings, but the elected representatives reserved the right to meet in camera. From that time on, members who accepted a public office would lose their seat unless they were granted this privilege by House vote. Finally, members revoked the rule 14 which prohibited the taking notes of speeches of other members or talking about them outside the House.9
In addition, still in 1784, there was a compilation entitled Rules and Orders agreed on by the House of Assembly.10 This manuscript, consisting of 19 rules, bore the signature of the clerk, Richard Cunningham. None of the standing rules in force in the Lower House appeared in this document. In essence, this other set of disciplinary rules ensured the smooth running of parliamentary debates. It concerned decorum and the process surrounding the passage of bills.
These different codification exercises took place at the 17th and final session of the 5th General Assembly which was elected in 1770 and dissolved in 1785. At that time, Nova Scotia was undergoing considerable change. The province’s population had doubled with the arrival of thousands of Loyalists beginning in 1783. Though much remains hypothetical, it is possible that these codification efforts were intended to ensure that future Loyalist members would act in accordance with Nova Scotia’s parliamentary traditions.
Rules of the House of Assembly of Île Saint-Jean (Prince Edward Island)
Île Saint-Jean (renamed Prince Edward Island in 1798) was annexed from the French by the Nova Scotian government by the Royal Proclamation of 1763.11 The 67 island lots were soon divided among some one hundred non-resident landowners. However, the original island settlers could not elect representatives to the Parliament of Nova Scotia, as voting rights were restricted to landowners who were Protestant residents.
Île Saint-Jean was detached from Nova Scotia by an order-in-council in 1769. The new governor, Walter Patterson, was instructed to establish a Legislative Assembly when circumstances allowed. The area was administered by a “governor-in-council” until 1773.
An assembly of 18 members was elected and sitting as of July 7, 1773. A committee composed of six members was soon asked “to frame a set of rules and regulations for better order and government of this House”. There was no follow-up on the motion during this 10-day session. At the following session, on October 5, 1774, a resolution was passed “that Laws, regulations and orders be drawn up for the better government of this House”. Despite these indications, no rule was recorded in the minutes. Another reference was made to “Rules, Orders and Regulations” on July 1, 1776, but these did not appear in the Journal either.
Finally, on February 4, 1796, Member Robert Hodgson made a motion to add a rule to the rules of the House. It was resolved that the seat of a Member who was absent for two consecutive sessions without prior permission of the House would be declared vacant.12 This new rule entered into force on February 13 of that year in order to declare the seat of James Campbell vacant.
It should be noted that this Assembly, elected in 1790, was not dissolved until 1802 and it remained loyal to Lieutenant-Governor Edmund Fanning. Such harmonious relationships between the legislative and executive authorities might not have warranted the development of procedure.13
Rules of the Legislative Council of Quebec
A legislative council was created pursuant to the Quebec Act, 1774, to see to “the Affairs of the Province of Quebec,”14 (the area encompassing southern Quebec and Ontario at that time). Until 1791, the province had a unicameral system of government in which there was no Lower House.15
The Legislative Council of Quebec is perhaps the first Upper House in all of the British North American colonies to have written rules.16 A copy of these unpublished rules was archived in the civil secretary’s correspondence.17 This French translation of the document by François-Joseph Cugnet is entitled Règlements adoptés en Conseil. The original document bore the signature of Jenkin Williams, Clerk of the Legislative Council.
This document establishing the rules of the Legislative Council consists of 11 rules. It covers voting, debates, minutes, seconded motions, committees, the Speaker and decorum. Rule 7 sets out the terms of the legislative process:
When the Bill is prepared, the Speaker of the Committee shall introduce it. All bills shall be read three times before they are passed. No member shall make any comments on first reading. On second reading, section by section, any member may propose amendments or additions. Each motion in this regard shall be subject to a vote and, if it is passed by a majority, the amendments or additions shall be made. After the second reading, an order shall be made to copy it out. And it shall be read a third time and passed without any amendment which might be proposed and ordered on this reading. The title will then be established.18[Translation]
Unfortunately, this document was not clearly dated, nor was it recorded in the minutes of the Legislative Council. Nonetheless, we know that it had to have been written between 1777 and 1789. This is because we know that it was written after Williams was appointed clerk of the Legislative Council in 1777. We also know that the document was translated prior to November 16, 1789, the date that corresponds to the death of Cugnet, the translator.19
Aside from this manuscript, there are several references relating to the creation or use of rules in the Legislative Council minutes. For example, on February 22, 1780, Councillor Hugh Finlay proposed that the Council provide itself with rules to frame its business. A document was subsequently tabled entitled “The manner of debating and passing Bills in Parliament”, which was then read in English and French. Three days later, a seven-member committee was formed “for framing Rules and Orders to conduct the business of the Council with more Regularity in time to come”. The committee was particularly responsible for considering “the Attorney General’s Attendance thereupon”, an item corresponding to the last section of the rules document translated by Cugnet.20 However, in a letter dated October 25, 1780, Governor Frederick Haldimand indicated to the Secretary of State of the colonies that “there is no kind of Form established by the Legislative Council for its proceedings.”21
On April 27, 1784, there was another entry, “The President recommended to the Members to deliberate between this and the next Sessions upon such addition at Rules as they may think fit to adopt in their Proceedings.” The fact that the President wished to add rules indicates that some rules already existed. On January 22, 1787, an order was finally given to “Read the Rules, heretofore agreed upon, for the business of the House, in both Languages.” In sum, the Legislative Counsel had some written rules prior to 1784.
The fact remains that Quebec parliamentary practices, customs and traditions predate this period. As attested by the minutes of the Quebec Council, the origins of this procedure date back to the establishment of civil government following the military regime. From 1764 to 1775, the members of this “gouvernor in council” followed the parliamentary procedure of the civil government to enact ordinances respecting the province of Quebec.22
From 1775 to 1791, the Legislative Council established several new practices. Some were taken directly from Lex Parlementaria, particularly to guide the Speaker’s casting vote in 1787.23 That same year, Chief Justice William Smith, who presided over House business, noted that “parliamentary custom” had specific characteristics.24 In this case, contrary to the Parliament of Great Britain, bills were referred to a committee for study after first rather than second reading. In short, the distinctive procedural characteristics of the Quebec provincial legislature show that it was able to adapt British parliamentary practices to meet its particular needs.25
Rules of the Legislative Assembly of New Brunswick
New Brunswick was detached from Nova Scotia in 1784. Governor Thomas Carleton was authorized by the Crown to run the colony with the help of a Council, until circumstances would permit the establishment of a Legislative Assembly.26 The first election of 26 Members took place in late 1785.
At the first sitting of the New Brunswick House of Assembly on January 3, 1786, a committee, consisting of Christopher Billop, Solicitor General Ward Chipman, James Campbell and Daniel Lyman was formed in order to establish parliamentary procedure.27 The committee’s report was submitted and adopted by the House on January 10.
This first codification effort consisted of 10 rules. The first dealt with debate decorum. Members were to remain sitting with bare heads in their respective places. If they wished to speak, they were to stand up and address the Speaker. The recording of votes and adoption of motions was also covered. Finally, since the House always sat in camera, instructions in this regard were given to the Sergeant-at-Arms.
A new committee responsible for drafting more rules was formed on January 20, 1786. The next day, two new rules were added. The purpose of the first rule was to take away a Member’s right to speak and vote if he was called to act as counsel for the House. The second rule provided a framework for reading petitions.
These standing rules were revised in 1797 when, in the Legislative Assembly Journal of February 3, there were a total of 17 rules. The rules adopted in 1786 were not substantially reworked. The review committee made only one addition in the third section that allowed a Member who had taken a seat in the morning to keep that seat for the rest of the day. Five additional rules related to the following: 1. non-circulation of documents tabled in the House; 2. election petitions; 3. exclusion of Members during debates on bills or items concerning them; 4. obligation of a Member to abstain during debates concerning personal matters; 5. presentation of petitions related to private bills.
In fact, the process for the study and passage of bills remained unframed in the first standing rules of the New Brunswick Legislative Assembly in the eighteenth century. The practices recorded in the House Journals indicate, however, that this procedure was the same as in the other colonies.
Rules of Parliament in Upper and Lower Canada
The Constitutional Act, 1791 divided the province of Quebec into two political entities, namely Upper Canada and Lower Canada. Each of the colonies had a Legislative Assembly and a Legislative Council.
The Upper Canada House of Assembly drafted its first rules before the House of Assembly in Lower Canada. Two days following the opening of the sitting, on December 18, 1792, it adopted seven rules of procedure.28
The first rules in the Upper Canada House of Assembly framed the adoption of bills, motions and questions, committees of the whole, petitions and quorum. The simplicity of these rules was very well-suited to this first Assembly of 16 Members. These rules were amended further throughout the nineteenth century. Over this time, they also became more comprehensive. There were 27 rules in 1802, 47 in 1825, and 64 in 1840.29
In Lower Canada, on December 20, 1792, Lieutenant-Governor Alured Clarke asked that the 50 Members adopt rules for the regular “dispatch of business” of the House of Assembly.30 Two days later, a special 10-member committee was formed for this purpose.
William Grant was among the Members of this committee. He was very familiar with parliamentary procedure, as he had sat on the Legislative Council of the Province of Quebec from 1777 to 1791. In the opinion of his colleague, Joseph Papineau, “Mr. Grant from Quebec was the strongest member of the Assembly. His enlightened advice and the books he placed at the disposition of his colleagues were extremely useful to them” [Translation].31 From this evidence, we can believe that Grant played a leading role in drafting this first set of rules.
On January 11, 1793, the special committee tabled its report. The rules of the regulations were studied, debated and passed one by one that day and over the course of the next few sittings. It was during this exercise that the famous language debate took place. On January 23, 1793, the House ruled on the recognition of French as a parliamentary language.
The rules were compiled and published in a bilingual compendium by order of the House on March 27, 1793. This compendium for the House of Assembly of Lower Canada consisted of 14 chapters and 75 rules covering quorum, the Speaker, committees, bills, motions, et cetera.32 Other procedural rules were gradually added; there were 79 rules in 1802, 100 in 1825 and 101 in 1837.33
Although researchers are familiar with the rules of the Assemblies of Upper and Lower Canada, they did not know until now that the Legislative Council of Lower Canada also set down 37 written rules on January 28, 1793. Although only half the number of the Lower House rules, they are more detailed than the standing rules of the Assemblies of the other British colonies at that time.
In addition to defining the Speaker’s role, meeting procedure and rules of debate, these rules established the order in which legislative councillors were to sit. The registration of divisions was codified, as well as the procedure used for passing bills in the House and in committee. Even the times of prayer and reading of the pro forma bill were set out.34 Other rules framed exchanges between the Upper House and Lower House.
On May 30, 1794, new rules were adopted to allow the public to attend Upper House sessions. Although the admission of “strangers” into the galleries was framed by 11 restrictive rules, only 2 were added in this regard. The first allowed Members to attend Council sessions and the second stipulated that the Speaker must empty the galleries upon the request of a single councillor.35
In the eighteenth century, the legislatures of Nova Scotia, Île Saint-Jean, Quebec, New Brunswick, Upper Canada and Lower Canada codified their parliamentary procedure to govern their business. These written rules were inspired by all the customs, practices and traditions of the Parliament of Westminster.
Nova Scotia was the first of the colonies that would form Canada in 1867 to begin recording its standing rules in 1763. These were not the first parliamentary rules in North America, however. Well before the thirteen American colonies proclaimed their independence in 1776, certain Assemblies had already compiled their procedural rules.36 The first to do so was the Maryland General Assembly, which had six sections of rules in the 1637-1638 session and nine in the 1647-1648 session. It was followed by the Rhode Island Court, which adopted ten rules in 1648.37 Codifying parliamentary practices is, in sum, a tradition dating back to the mid-seventeenth century.
This tradition appears to have special significance in Quebec. In 1793, the House of Assembly (75 rules) and Legislative Council (37 rules) of Lower Canada adopted a set of rules that was more extensive than elsewhere in the colonies of the British Empire. Even when compared with American assemblies that had more rules prior to Independence, namely Pennsylvania (22 rules in 1767) and Virginia (28 rules in 1769), Quebec’s rules were more comprehensive.38
In Lower Canada, this need for more detailed procedural rules might be explained by the already present fear that its linguistic, religious and national duality might divide the members of Parliament. It could also be related to the French-Canadian civil law tradition and its natural inclination for codification (contrary to the common law tradition based on precedent).
Quebec still stands out in terms of written parliamentary rules. On May 8, 1941, a century and a half after the first rules were set down in the House of Assembly of Lower Canada, the Legislative Assembly of Quebec passed a new set including 812 rules and 89 appendices, a level unequaled in the Commonwealth.39 Today the Rules in force in the National Assembly include 327 rules and 68 rules of operation. They are still the most detailed of all of the parliaments in Canada.40
However, the current record belongs to the House of Commons in London. Its Standing Orders include 163 rules for public business and 248 rules for private business.41 It should be noted that all of the rules in force were adopted after the Reform Act of 1832, with the exception of rules 48 and 49 respecting the commitment of public funds (originally dating back to 1713 and 1707) and rule 81 on sunset legislation (1797). The House of Lords has 86 rules for public business and 217 rules for private business.42
It should be noted that the Library of the National Assembly of Quebec strives to make the unpublished rules cited in this section available to researchers. They can be found on the Internet site « Documents politiques et parlementaires du Québec ».43
- I wish to thank historian Donald Fyson from Laval University, Martin Pelletier from the Library of the National Assembly, Anne Van Iderstine, Angie Lessard and David McDonald Library of the Legislative Assembly of Nova Scotia as well as Alexandra Barry, Laura Morrell and Ryan Reddinde from the Library of the Legislative Assembly of Prince Edward Island, for their support in my documentary research.
- Sheila Lambert, Bills and Acts: legislative procedure in eighteenth-century England, Cambridge, University Press, 1971, p. 53.
- Journal of the House of Commons […] Sess. 1810-1811, vol. 66, (Appendix), p. 682. The House of Lords has compiled its Standing Orders since 1621 and printed them in 1642. The orders related to private business were printed again in 1707. Frederick Clifford, A History of Private Bill Legislation, vol. 2, London, Butterworths, 1887, p. 753. See: “Règlement de l’Assemblée nationale,” Encyclopédie du Parlementarisme québécois (online), National Assembly of Quebec. [no English translation]
- Erskine May (1815-1886), House of Commons clerk from 1871 to 1886, would later be considered the greatest authority on the subject. His book, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, published for the first time in 1844, is now in its 24th edition.
- Archibald M. MacMechan (dir.), Original Minutes of His Majesty’s Council at Annapolis Royal, 1720-1739, Halifax, n.d., 1908, 406 p.
- Cape Breton Island was reintegrated with Nova Scotia under the Royal Proclamation of 1763. However, its inhabitants did not receive the colonial executive’s agreement to elect members of parliament.
- Journal and votes of the House of Assembly for the province of Nova Scotia, 5 November 1763, p. 155-156.
- A resolution for an allowance of 10 shillings per day was passed on 21 June 1781.
- Beamish Murdoch, A History of Nova-Scotia or Acadie, Halifax, James Barnes, 1867, vol. III, p. 36.
- Rules and Orders agreed on by the House of Assembly (1784). Rules and Orders by order of Richard Cunningham, Clerk of the House of Assembly from 1783 to 1785. http://nslegislature.ca/index.php/photogallery/image_full/81/
- “Proclamation royale (1763)”, Encyclopédie du Parlementarisme québécois (online), National Assembly of Quebec, 25 September 2014. [no English translation]
- Journal of the House of Assembly of His Majesty’s Island of Saint John […] 1796, Charlottetown, William Alexander Rind, 1796, p. 5.
- A contrario, Henri Brun wrote that “the stiff opposition imposed by the exercise of the legislative function” [translation] among the three legislative bodies in Lower Canada was the very source of Quebec parliamentary law. Henri Brun, La formation des institutions parlementaires québécoises, 1791-1838, Quebec, Presses de l’Université Laval, 1970, p. 353.
- “The Quebec Act,” in Adam Shortt and Arthur G. Doughty (ed.), Documents relating to the Constitutional History of Canada, 1759-1791, Ottawa, T. Mulvey, 1921, Vol. 1, p. 559.
- Michel Bonsaint (dir.), Parliamentary Procedure in Quebec, Quebec, National Assembly, 2013, p. 15.
- We were unable to consult the minutes of the legislative councils of the other colonies; however, there is no mention of rules for these legislative councils in the historiography.
- Civil Secretary’s correspondence: A 1 – S Series: Quebec and Lower Canada: C-3005, image 789.
- The practice of bills being ‘read’ three times is not in the Standing Orders of the Parliament of Westminster, but has been developed through precedent. http://www.parliament.uk/about/how/role/customs/
- An analysis of his signature indicates that it was not the signature of his son, Jacques-François Cugnet, who succeeded him as Council translator.
- Translated into French as, “L’avocat général se rendra au Conseil, lorsqu’il en sera requis.”
- Haldimand to Germain, Quebec, 25 October 1780, in A. Shortt and A. G. Doughty (ed.), op. cit., Vol. 2, p. 714.
- M. Bonsaint (ed.), op. cit., p. 11.
- “Lex Parlementaria,” Encyclopédie du parlementarisme québécois (online), National Assembly of Quebec, 23 January 2015. [no English translation]
- Extracts of Council proceedings, Monday, 26 March 1787, in A. Shortt and A. G. Doughty (ed.), op. cit., Vol. 2, p. 855.
- It is the same in other American colonies. Peverill Squire, The Evolution of American Legislatures Colonies, Territories, and States, 1619-2009, Ann Arbor, University of Michigan Press, 2012, p. 59.
- The Privy Council in London detached Cape Breton Island from Nova Scotia in 1784 at the same time as New Brunswick. The colony was run by a Lieutenant-Governor in Council. No Legislative Assembly was ever established. The population was considered too poor to support an Assembly; in addition the majority of the population was made up of Catholics (francophone Acadians and Gaelic Scotsmen). Finally, the Crown reintegrated the colony with Nova Scotia in 1820.
- Phillip Buckner, “Chipman, Ward (1754-1824),” in Dictionary of Canadian Biography, Vol. VI, Université Laval/University of Toronto, 2003, consulted on 26 January 2015, http://www.biographi.ca/en/bio/chipman_ward_1754_1824_6F.html
- Gary O’Brien, Pre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792-1866, Ottawa, Carleton University, 1988, p. 61 and 70.
- Great Britain, Colonial Office: Canada, formerly British North America, original correspondence (CO 42): C-11907, p. 53. http://heritage.canadiana.ca/view/oocihm.lac_reel_c11907/1142?r=0&s=1
- John Hare, Aux origines du parlementarisme québécois, 1791-1793, Sillery, Septentrion, 1993, p. 63. [no English translation]
- Rules and Regulations of the House of Assembly, Lower-Canada / Règles et Règlements de la Chambre d’Assemblée du Bas-Canada, Québec, John Neilson, 1793, 73 p.http://www.bibliotheque.assnat.qc.ca/DepotNumerique_v2/AffichageNotice.aspx?idn=48714
- G. O’Brien, op. cit., p. 61 and p. 200.
- “Bill pro forma,”, Encyclopédie du parlementarisme québécois (online), Quebec National Assembly, 27 January 2015. [no English translation]
- The Legislative Council compiled its standing rules on 28 January 1817. The compilation included 42 rules.
- The Congress gathered together delegates from the thirteen colonies, in Philadelphia, and on 17 July 1776, passed 12 articles to form the “rules and orders for the government of this house”. Article 1, rules 5 of the American constitution states that: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” Thomas Jefferson, who was part of the committee in charge of drafting these regulations, also published in 1801 (and reedited in 1812) the first compendium of parliamentary procedure, entitled A Manual of Parliamentary Practice: for the Use of the Senate of the United States. http://works.bepress.com/cgi/viewcontent.cgi?article=1587&context=peter_aschenbrenner
- P. Squire, op. cit., p. 50- 52. Mention should also be made of Virginia’s House of Burgesses which included five regulations in 1658 and the South Carolina House of Assembly which passed 14 rules in 1692.
- Ibid., p. 54-59.
- Louis-Philippe Geoffrion, Règlement annoté de l’Assemblée législative, Quebec, Legislative Assembly, 1941.
- House of Commons (159 rules, plus 34 rules for the Conflict of Interest Code for Members of the House of Commons); Senate (170 rules); Ontario (145 rules); Nova Scotia (85 rules); New Brunswick (123 rules); Prince Edward Island (114 rules plus six chapters on procedure); British Columbia (120 rules); Manitoba (161 rules); Alberta (119 rules plus 26 rules on election of the Speaker); Saskatchewan (163 rules); Newfoundland (128 rules); Yukon (77 rules); Northwest Territories (103 rules); Nunavut (101 rules).
- Standing Orders of the House of Commons: Public Business, December 19, 2013. The Stationary Office. http://www.publications.parliament.uk/pa/cm201314/cmstords/900/900.pdf; Standing Orders of the House of Commons, Private Business, July 21, 2005: http://www.publications.parliament.uk/pa/cm200506/cmstords/441.pdf
- Standing Orders of the House of Lords relating to Public Business, 2013. The Stationary Office Limited. HL Paper 105 http://www.parliament.the-stationery-office.co.uk/pa/ld/ldstords/105/105.pdf; The Standing Orders of the House of Lords relating to Private Business, 2005. http://www.publications.parliament.uk/pa/ld/ldstords/ldprords.htm
- Documents politiques et parlementaires du Québec. http://bibliotheque.assnat.qc.ca/content.php?pid=282496&sid=2325933