A GUIDE TO LEGISLATION IN PRE-CONFEDERATION QUEBEC AND LOWER CANADA
From Donald Fyson, Colin M. Coates and Kathryn Harvey eds., Class, Gender and the Law in Eighteenth and Nineteenth-Century Quebec: Sources and Perspectives (Montreal: Montreal History Group, 1993): 5-27.
Note: in this text, I have made one change with regards to the original, printed version, concerning the Consolidated Statutes for Lower Canada. 1860 marked the publication of the report of the consolidation commissioners, and thus the first codification of existing law, but the Consolidated Statutes themselves were proclaimed and published in 1861. I have thus modified the dates accordingly.
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Mention legislative history, and the historian, the social historian in particular, is apt to groan and reach instead for Braudel or Foucault. And not without reason: until relatively recently, the history of the law has been overburdened with leaden descriptions of the legislative process and endless tabulations of statutory enactments, along with arid discussions of historical case-law and legal commentary.(1) Quebec legal historiography is no exception: as a recent review article noted, "There has been heavy reliance in existing scholarship on statute books and case reports and, as a result, the historical questions posed are often one-dimensional."(2)
And yet, legislation is a fundamental historical source, not only for historians of the law, but for anyone seeking to know a historical society. It reflects elite attitudes towards particular issues; it helps in reconstituting the formal administrative structures interposed between state and society; and for the historian-as-practitioner, it is indispensable in interpreting the records produced by those administrative structures.
The present paper, for example, came out of my experience in using legislative sources for two recent projects in Quebec history: the first, a sketch of the court structure of Quebec and Lower Canada up to 1860, essentially as a guide to extant court records;(3) and the second, with Kathryn Harvey, an examination of nineteenth-century social attitudes towards alcohol consumption, partly through legislation and court records. In both cases, I was confronted with a convoluted, overlapping, multi-layered regulatory framework, with legislation ranging from Imperial statutes through proclamations of the Governor to local by-laws, and available in such disparate sources as statute books and local newspapers. There was no easily accessible guide to understanding and using eighteenth- and nineteenth-century legislation; and after a researcher on the first project spent several weeks combing the Quebec Gazette for eighteenth-century ordinances, only to find that they had all been collected and reprinted in the early twentieth century,(4) the utility of such a guide was readily apparent.
This paper is thus a basic guide to legislation in Quebec and Lower Canada(5) between 1764 and 1867. It is intended for those who, in using court and other legal records to address a particular historical question, need a "rough and ready" guide to the legislation that might affect or be referred to in such sources. As such, it does not have the analytical rigour necessary for those attempting a detailed reconstruction of Quebec's legal culture, or even for the sort of "retrospective legislative history ... marked by rigid formalism,"(6) that used to characterize legal historiography. Rather, it adopts the perspective of the finding aid: it is "positivist" insofar as it limits itself to description, and "formalist" insofar as it uses labels and categories inspired by the internal logic of the sources it addresses.
The guide has three sections. First, there is a discussion of legislation as a category. Then there are descriptions of the main bodies of legislation in force in Quebec and Lower Canada between 1764 and 1867. And finally, there are general notes on how to read legislative sources.
A. Legislation: A Definition
From a critical, analytical perspective, isolating "legislation" from the other sources of the law is problematic, for it is a category "predicated upon the 'internal' aspects of the law," rather than one of the "broad categories which reflect the 'place' of the law in society."(7) Nevertheless, the bulk of the legal sources used by historians were the products of an official administrative system that, in organizing and referring to the documents it produced, tended to respect and use the classic divisions of legislative promulgation, executive order, and judicial application. As a result, most eighteenth- and nineteenth-century legal sources are physically segregated into these three categories, albeit with considerable overlap. Hence, it is appropriate in a guide to such sources to concentrate on one of these fundamental, internal categories of the law, legislative promulgation.
However, there remains the problem of defining what is meant by "legislation". A strict definition limits it to the written rules promulgated by the legislature of a state or nation;(8) but more loosely, it can extend to the laws enacted by any lawmaking body.(9) Because of this ambiguity, legal scholars often favour more specific phrases such as "statutes and statutory instruments;" but these terms in turn are fraught with problems.(10)
As "legislation" is both succinct, and a term commonly used in legal historiography, I have chosen to retain it here, while providing an explicit definition that respects the internal divisions of the sources. For the purposes of this guide, legislation is any written rule (rather than an unwritten practice),(11) promulgated by any body with officially sanctioned legislative authority (whether general or limited to certain areas of competence), concerning general circumstances (rather than a specific case),(12) and regulating the public (whether at large or a specific sub-population). My definition thus includes laws made by bodies with general legislative authority over the province, such as the British parliament or the various colonial legislatures; quasi-public organizations with a specific legislative mandate, such as municipal corporations; and private corporations with jurisdiction over the public they dealt with, such as transportation companies. However, it excludes treaties and other agreements between governments; case law; unwritten custom; executive orders pertaining to specific circumstances; and internal regulations made by private corporations for their members or employees. And it also ignores the entire range of sources of the law that were not produced in an official context, especially learned commentaries.
The definition I have adopted is open to criticism. Unwritten rules, such as judicial decisions or established customs, were an integral part of the law, especially in common-law jurisdictions.(13) Learned commentaries were in practice as influential as official texts, since they were far more likely to be consulted by legal practitioners.(14) And the definitions of "general circumstances" and "public" are problematic.(15) However, this simply reflects the arbitrary and imprecise nature of the administrative system that produced the legal sources covered in this guide, which it is beyond the scope of this paper to criticize.
B. Legislation in Quebec and Lower Canada, 1764-1867
Following the definition outlined above, there were four principal groups of legislation in force in Quebec and Lower Canada between 1764 and 1867. There was European and colonial legislation that, though not specifically enacted for Quebec and Lower Canada, nevertheless became part of the colony's legal heritage through the process of "reception". There was British legislation that was specifically extended to the colony, and was thus automatically in effect. There was the legislation made by colonial institutions with general legislative authority over the province. And there were the regulations made by colonial institutions with limited or specific legislative authority.
1. The legal substrate: European and colonial legislation received into Quebec and Lower Canada
As in most colonies in which the culture of the European settlers came to dominate, the law of Quebec initially rested in large part on the general law of the successive colonial powers, France and Great Britain. Along with portions of the law of its predecessor colony, New France, this European legal heritage became the substrate on which law specific to the colony was based, although it was substantially modified by later colonial and imperial enactments.
In English colonies, the nature of this legal substrate was determined by the principle of reception, a complex legal theory based both on common-law practice and on case-law that determined which portions of which European law were considered to have been "received" into the colony, and thus in force.(16) As it stood in the eighteenth century, the theory of reception distinguished between colonies acquired by the English crown through settlement of "uninhabited" territory (which included the territory of "barbaric" native peoples), and those acquired, by conquest or treaty, from other colonial powers.(17) In the latter, which included Quebec, the law in effect under the previous colonial power remained unchanged until specifically modified or repealed by British or colonial legislation.(18) Such legislation usually stipulated the reception into the colony of all or part of the law of England as it stood on a specific date, the "date of reception." This had the effect of establishing as the colony's legal substrate the received portion of English law, and whatever portions of the law previously in force that were not specifically superseded. Conversely, no other English law was in force in the colony, including any law made after the date of reception, apart from legislation specifically extended to the colony;(19) and of course, no law made by the previous colonial power after the date of conquest or cession had any force.
In Quebec and Lower Canada, this principle meant that two main bodies of European legislation were in force: legislation made in France and New France that had affected the civil law of New France; and English statutes affecting the criminal law of England. As well, a miscellany of other English legislation was also in effect.
Before 1775, the civil law that had applied in New France was debatably in force in Quebec,(20) although most civil suits were, in practice, determined roughly according to the pre-existing civil law;(21) but as of 1775, its force was formally recognized by the Quebec Act. This meant that legislation of France or New France made before 1760 and affecting the civil law of New France was in force in Quebec and Lower Canada, although subject to considerable modification by later legislation. In particular, there were Ordonnances, Edits, and Arrêts of the King (such as the Arrêt de Marly); officially sanctioned codifications (such as the 1589 Coutume de Paris); Ordonnances and Arrêts of the Sovereign Council of New France; and Ordonnances of the Intendant.
Most of this legislation has been reprinted at various times in the nineteenth and twentieth centuries. For French legislation, Isambert's multi-volume reproduction of all ancien-régime French legislation is the most authoritative source;(22) there are also works that reprint most of the more important pieces of legislation relative to Canada.(23) Much of the legislation of New France has also been reprinted, although not completely.(24) As well, the various commentaries on the civil law used by legal practitioners often make reference to the original legislation, and thus provide an easily accessible guide. These include the works of French commentators such as Ferrière and Pothier;(25) the commentaries prepared by Cugnet in response to Quebec Act's formal revival of the civil law;(26) the works of Desrivières-Beaubien, Doucet, and Bibaud in the 1830s, 40s, and 50s respectively;(27) and the original 1866 formulation of the Civil Code.(28)
The criminal law of England as it stood in 1763 was received into Quebec in 1764 by the Royal Proclamation; in 1775, it was received again by the Quebec Act, although this time as it stood in 1774.(29) In terms of legislation, this meant that between 1763 and 1775, statutes of the British Parliament made up to 1763 and affecting the criminal law of England were in force in the colony, while after 1775, such statutes made up to 1774 were also in force.(30)
One important difficulty lay in defining what was meant by "criminal law". In terms of actions that were unmistakably "criminal", such as murder or larceny, there was no doubt that English legislation was in force. The difficulty arose over whether legislation affecting the "police", in its eighteenth-century sense of local administration, was included in the "criminal law of England" received into the colony.(31) In the eighteenth century, the situation was confused. On the one hand, the Justices of the Peace who were charged with local administration in the colony applied many of the English "police" statutes, including those covering poor orphans, apprentices, ferries, and local regulations.(32) On the other, many French-Canadian legal commentators were equally sure that such laws did not apply.(33) By the nineteenth century, however, the situation was largely moot, since most "police" matters were by then specifically regulated by colonial ordinances and acts.
The most authoritative sources for British criminal statutes are the various compilations that reproduce the text of all British public(34) statutes in chronological order. However, while these are widely accessible and relatively easy to use, their sheer bulk(35) makes them useful only when a researcher has a reference to a specific statute (as is often the case with court records). For a researcher seeking to know in a more general sense the English statutes relating to a particular matter, it is far more practical to make use of the various contemporary reference works on the subject, which were at any rate the sources most often used by legal practitioners in Quebec and Lower Canada. Foremost among these were the fourth volume of William Blackstone's Commentaries and Richard Burn's The Justice of the Peace, although there were also many others.(36)
English criminal law was not the only English law introduced into Quebec and Lower Canada. For one thing, the cession of New France to the Crown of England automatically introduced into the new colony of Quebec those portions of English constitutional law that governed matters relating to the nature and operation of the state itself, such as the rights and duties of public officials, the administration of justice, and the rights of the Crown with regards to lands and public works.(37) Likewise, certain bodies of law based on the exercise of royal prerogative, such as martial law, also became part of the general law of the colony.(38) And other specific portions of English law were introduced later, including the law relating to evidence and bills of exchange, and Admiralty law. Unlike the criminal law, most of these rested on unwritten practice or (in the case of Admiralty law) learned commentary, which do not concern us here. However, any English legislation that touched upon these matters, such as statutes regulating the duties of public officials or the conduct of soldiers, were in theory in force in Quebec and Lower Canada. Such legislation can be consulted in the statute books in the same fashion as criminal legislation, and can also be accessed through specialized works.(39)
2. The imperial prerogative: British legislation specifically extended to Quebec or Lower Canada
By the principle of reception, the general law of Great Britain did not automatically apply in Quebec and Lower Canada, with only the criminal law as it stood in 1774 being received. However, by the doctrine of legislative supremacy, any British legislation that was extended specifically to Quebec or Lower Canada was in effect in the province, no matter when it was made or on what subject. Such legislation could include the colony explicitly by name, as with the Quebec Act of 1774 or the Canada Jurisdiction Act of 1803; or it could include it implicitly under general words, such as "all of the King's dominions" or "His Majesty's North American possessions," as with the various Navigation Acts. In the latter case, even legislation made before the Conquest applied: thus, revenue acts made before 1760 for the regulation of the American colonies also applied to Quebec after 1760, even though when these acts were made, Quebec was still a French possession.
Statutes or acts of the British parliament were the most common instances of this sort of legislation. As with English criminal statutes, the statute books are the most authoritative source, but also the most unwieldy. More accessible are the various collections of British statutes relevant to Canada that were made for contemporary legal practitioners faced with the same problem, although their coverage is not necessarily exhaustive.(40)
Less common were proclamations of the King or orders-in-council of the King and Privy Council that touched on Quebec and Lower Canada, and had legislative force, such as the Royal Proclamation of 1763. There is no readily accessible source for these; some of the more important ones were published as pamphlets,(41) in the Quebec Gazette, or at the beginning of the colonial statute books, or are available in modern reprints.(42)
Finally, there was also legislation made by other British institutions by delegation of authority from either Parliament or the King, and which were applied in Quebec and Lower Canada. For example, the Commissioners for Executing the Office of Lord High Admiral were empowered to enact regulations concerning matters under their jurisdiction. Unless specifically cited in Quebec and Lower Canadian sources, however, consulting this legislation is probably too time-consuming for the small amount of information that can be gleaned from it.
3. The colonial authority: Quebec and Lower Canadian legislation made by institutions with general legislative authority
The legislation most often referred to in Quebec and Lower Canadian legal sources was that made by colonial institutions with general legislative authority over the province. This included ordinances and acts made the various legislatures of the colony, and proclamations and orders-in-council made by the executive.
3.1 Ordinances and acts of the legislatures of Quebec and Lower Canada
The ordinances and acts made by the various legislatures(43) of Quebec and Lower Canada form the body of legislation that is by far the easiest to consult. The series changes with the various modifications in the colony's political-administrative structure: from 1764 to 1773,(44) there are the ordinances made by the Governor and Council; from 1777 to 1792, those made by the Governor and Legislative Council;(45) from 1793 to 1836, the acts of the Legislature of Lower Canada;(46) from 1838 to 1841, the ordinances made by the Governor and Special Council; and from 1842 to 1866, the acts of the Legislature of the Province of Canada that related to the Province of Canada in general, or to Lower Canada specifically.(47) The English and French text of ordinances made from 1764 to 1792 is reprinted in the Canadian Archives Report for 1913 and 1914-1915, the Rapport sur les travaux de la division des archives pour l'année 1913, and the Rapport concernant les travaux des archives publiques 1914-1915;(48) the originals can usually be found in the Quebec Gazette by referring to the date of publication noted in the reprints, or failing that, in the collection of official manuscript copies in the National Archives of Canada.(49) All later acts and ordinances are available in both their English and French versions in contemporary bound collections, whose titles vary,(50) but which are often collectively referred to as the "statute books."
Ordinances passed between 1764 and 1773 were only in force until 1775, when they were abrogated wholesale by the Quebec Act. Conversely, all ordinances and acts passed from 1777 on were in force throughout the period covered by this guide, unless repealed, expired, or amended. This created a sort of legislative sedimentation which, when combined with the common practice of amending or repealing laws piecemeal, resulted by the nineteenth century in a legislative framework that was extensive and convoluted enough to begin posing serious practical problems for legal practitioners.
There were two approaches taken to alleviate this problem. In the first place, there were at least three nineteenth-century indexes to Quebec and Lower Canadian ordinances and acts made from 1777 on, with the latest, G.W. Wicksteed's Table of the Provincial Statutes and Ordinances in Force or Which Have Been in Force in Lower Canada ... being the most useful to researchers. This lists all ordinances and acts made in chronological order, with a brief description and a summary of the "life" of each, including cross-references to other ordinances or acts that amended or repealed it.(51)
The other approach to the problem of legislative sedimentation was the consolidation of all ordinances and acts previously passed and still in force. There were two such efforts made for Lower Canada in the 1840s and 1850s. In 1845, all ordinances and acts passed before 1842 and in force in 1845 were reprinted as The Revised Acts and Ordinances of Lower-Canada, although this work stopped short of being a full consolidation.(52) And in 1859 and 1861 respectively, all ordinances and acts in force were consolidated into The Consolidated Statutes of Canada (for those applicable to the province of Canada as a whole) and The Consolidated Statutes for Lower Canada (for those applicable only to Lower Canada). This effectively produced a codification of the statute law then in force, and these volumes became the official texts to which most subsequent legal sources referred. However, these consolidations only included legislation considered to be "public" or "general" in nature, that is, legislation that affected the public in general; "private" or "local" legislation, that affected only a specific group, such as members of a corporation, was not included.(53) As well, they are of limited use to the historian interested in how the law stood at any time before their publication, as they make no reference to legislation that was no longer in force. And finally, the consolidations themselves were almost immediately amended by later legislation, leading to a further layer of sedimentation.
The net effect of all of this is that the sources for ordinances and acts in Quebec and Lower Canada are complicated, varying both according to the time, and to the type of legislation. These sources are summarized in Table 1.
TABLE 1: SOURCES FOR ORDINANCES AND ACTS OF QUEBEC AND LOWER CANADA
Public / General
Private / Local
In force before 1859/1861
Canadian Archives Reports and Quebec and Lower Canadian statute books, supplemented (up to 1857) by Wicksteed's Table
Canadian Archives Reports and Quebec and Lower Canadian statute books, supplemented (up to 1857) by Wicksteed's Table
Passed before 1859/1861 and in force after 1859/1861
The Consolidated Statutes of Canada (1859) (applicable to the Province of Canada) / The Consolidated Statutes for Lower Canada (1861) (only applicable to Quebec and Lower Canada)
Passed after 1859/1861
Statute books of the Province of Canada
3.2 Legislation made by the executive
As was the case with British legislation, colonial legislation made by the executive was important, but far less common than ordinances and acts of the legislature. Most notable were proclamations of the Governor (or other head of the executive), and orders-in-council of the Governor and (Executive) Council. While most of these were directed at specific, transitory circumstances, and thus do not fall under the rubric of "legislation" as used here, certain of these instruments addressed more general circumstances. For example, the small claims courts that were set up in the late 1780s and early 1790s were erected and partially regulated by proclamations of the Governor;(54) and the regulations that governed the conduct of the militia were issued by the Governor as orders-in-council.(55)
The English and French versions of proclamations issued from 1764 to 1815 are reprinted in the Canadian Archives Report and the Rapport des Archives Publiques for 1917-1918 and 1919-1920, which also include indexes. For the period after 1815, the researcher must have reference either to the Quebec Gazette or to the official manuscript copies in the National Archives of Canada.(56) Orders-in-council are even more difficult to consult. Some of the more important were published as pamphlets;(57) however, the only sources for most are the Quebec Gazette, or the minutes and journals of the Executive Council. Given the difficulty of consulting these sources, the law of diminishing returns argues against considering them without a specific reference.
4. The local power: Quebec and Lower Canadian legislation made by institutions with specific or limited legislative authority
The body of legislation in force in Quebec and Lower Canada that has been most neglected by historians are the rules and regulations that were promulgated by institutions with specific or limited legislative authority. These could be quasi-public institutions, such as municipal corporations; or they could be private corporations who had been given the right to impose their own regulations on members of the public who dealt with them, such as transportation companies. In both cases, they could have considerable impact on society at large.
Colonial ordinances and acts often delegated specific, limited legislative authority to quasi-public institutions. In particular, there were the by-laws of municipal corporations, by which they regulated public conduct in their cities and towns; and the regulations made by institutions with control over certain activities, such as the regulations for pilots and inland navigation made by the Trinity Houses. In a few cases, the delegation of authority went even further, with private corporations being given the right to regulate the conduct of members of the public with whom they dealt. Thus, for example, an 1819 act permitted the Lachine Canal company to make regulations for persons using its facilities, and gave it the right to impose fines;(58) and similar grants of legislative authority were made later to railway companies.(59)
Legislation produced by these institutions is the least accessible of all legislative sources. The municipal by-laws of Quebec and Montreal are relatively easy to consult, as regular compilations were issued from the beginning of the nineteenth century.(60) Regulations of other institutions with local or specific jurisdiction were at best published in pamphlet form, of which a few ephemeral examples have been preserved.(61) However, most were published only in newspapers or by handbills, such that this legislation is impossible to consult without reference to the official manuscript records of whatever institution produced them.
C. Reading legislative sources: some general principles
1. Legislative precedence
In the internal logic of the legal system in force in Quebec and Lower Canada, the different bodies of legislation occupied definite positions in a hierarchy of precedence. As represented in Table 2, the hierarchy can be conceptualized as having four basic layers. At the top, representing the supremacy of the colonial power, was British legislation specifically extended Quebec and Lower Canada. Next in precedence was legislation passed by those institutions in the colony with general legislative authority.(62) Below this ranked the European and colonial legislation that had been received into the colony. And finally, there was the legislation made by institutions with specific or limited legislative authority.
TABLE 2: HIERARCHY OF LEGISLATION IN QUEBEC AND LOWER CANADA, 1764-1867
British legislation specifically extended to Quebec and Lower Canada
Statutes of the British Parliament
Proclamations and Orders in Council of the King (and Privy Council)
Legislation made by other British institutions by delegation of authority from the above
Quebec and Lower Canadian legislation made by institutions with general legislative authority
Acts of the Legislature of the Province of Canada extended to Lower Canada (1842 to 1866)
Ordinances of the Governor and Special Council of Lower Canada (1838 to 1841)
Acts of the Legislature of Lower Canada (1793 to 1836)
Ordinances of the Governor and (Legislative) Council of Quebec (1764 to 17731 and 1777 to 1792)
Proclamations of the Governor
Orders in Council of the Governor and (Executive) Council
European and colonial legislation received into Quebec and Lower Canada
Legislation of France and New France affecting the civil law of New France2
Statutes of the British Parliament made up to 17743 affecting the criminal law of England
Statutes of the British Parliament affecting other bodies of received law
Quebec and Lower Canadian legislation made by institutions with specific or limited legislative authority
Regulations made by quasi-public institutions
Regulations made by private institutions
The importance of this legislative hierarchy was that with few exceptions, legislation higher in the hierarchy took absolute precedence over and could modify legislation below it, whereas legislation lower in the hierarchy could neither specifically modify legislation above it in the hierarchy, or be generally incompatible with it. Thus, for example, colonial ordinances and acts could modify received European legislation, such as the ordinances and acts which criminalized the illicit sale of alcohol;(63) but they could not be incompatible with over-riding British legislation such as the Quebec Act. Likewise, municipal by-laws had to be constructed so as not to be incompatible with any of the British, colonial, or received European legislation, and could be disallowed if they did not fulfil this condition.(64) Finally, later legislation of the same type could always modify earlier legislation; thus, for example, all ordinances of the Governor and Special Council could be modified or repealed by acts of the Legislature of the Province of Canada.
2. Reference systems
Various numbering and naming systems were applied to legislation, to which sources often make reference. Statutes of the British parliament and ordinances and acts of the various legislatures of Quebec and Lower Canada were usually referred to by the session of the legislature in which they were passed (identified by the year of the reigning monarch and his or her name, often abbreviated) and a chapter number, as in 14 George III c.83 or 15 Vic c.47.(65) However, ordinances passed by the Governor and Council before 1775 had no chapter numbers assigned to them, and in the case of older English statutes, the chapter number was often omitted in references. Proclamations of the King or Governor were referred to by the name and/or position of the issuer and the date, as in "A Proclamation of Sir John Colborne dated ..." Legislation from the French régime was referred to either by a specific name, as in the Arrêt de Marly, or by the type of instrument, name and/or title of the issuer, and date, as in "An ordonnance of the Intendant Bigot dated ..." Legislation made by colonial institutions with specific or limited jurisdiction followed a variety of more-or-less consistent numbering schemes; for example, by-laws made by the City Council of Montreal between 1841 and 1864 were numbered consecutively from 1 to 294, with the numbering starting over again at 1 in 1866 following the 1865 codification of the by-laws.(66)
3. Date in force
In cases where legislation had to be sanctioned by a higher authority, there was often a difference between the date the legislation was promulgated (usually indicated in the text of the legislation itself), and that date of its official "sanction" by the higher authority. In most cases, this difference was unimportant, amounting to at most a few months. However, in some cases legislation was officially published before it was sanctioned, and sanction was then refused. Thus, three ordinances of Murray's concerning tavernkeepers, Sunday sales, and billeting, were published in the Quebec Gazette in November 1764, but refused royal sanction in late 1765, and thus were never legally in effect.(67)
4. Temporary and permanent legislation
Legislation could be temporary or permanent. Temporary legislation was in effect either for a specified period,(68) after which it was said to have "expired" (unless it was continued by later legislation); or until a specified set of conditions was fulfilled, after which it was said to have become "effete". Thus, ordinances passed by the Governor and Council of Quebec between 1777 and 1792 were all temporary, and had to be renewed every two years by new ordinances; likewise, ordinances passed by the Governor and Special Council between 1838 and 1841 were all to be in force only until 1841.
Permanent legislation, on the other hand, was in force until it was specifically amended or repealed by later legislation. It was this type of legislation that primarily led to the sort of legislative sedimentation discussed above. In the case of ordinances and acts of the colonial legislature, the various indexes make it relatively easy to trace the life of a particular piece of legislation. However, in most other cases, these reference tools do not exist, or at least are not very accessible. Thus, for example, most of the rules and regulations passed by the municipal corporation of Montreal after 1840 were permanent, such that knowing which regulations were in force in 1860 requires examining every regulation made up to that date.
5. Amendment, repeal and revival
As noted above, all legislation could be amended or repealed by subsequent legislation either higher than or equivalent to it in legislative precedence. This amendment or repeal could take one of several forms. In the simplest case, the change was explicit, with the affected legislation being specifically cited. In other cases, general words were included to the effect that all previous legislation incompatible with the current legislation was to be considered null and void. And finally, where new legislation dealt with specific matters covered by a previous legislation, the previous provisions were considered to have implicitly been superseded.
If legislation was repealed by later legislation, and the repealing legislation in turn either expired or was repealed, the first legislation was held to have "revived", or come back into force. Thus, two permanent militia acts were passed in Lower Canada in 1794 and 1796 which imposed unpopular duties on militia members.(69) They were repealed by a series of temporary acts beginning in 1803; but during the political crisis under the administration of Dalhousie in the late 1820s, the repealing acts were allowed to expire, thus reviving the older militia acts. Many French-Canadian militia officers, however, did not accept that the older acts had been revived, and refused to enforce provisions that they believed had lapsed twenty years previously; this gave Dalhousie the excuse he needed to dismiss a number of them.(70)
As the other papers in this collection demonstrate, legislation is but one of the many sources produced by the legal system that can be used by the historian to reconstruct the past. However, it is an especially important one, as it forms much of the basis for other legal sources, and is crucial to understanding their language and construction. In this paper, I have tried to give some basic guidelines to using this source which, at first sight, may seem dauntingly complex, especially to a historian who has little interest in the law itself but nevertheless needs to know its potential impact on a particular aspect of society. Though convoluted, the system of legislation in force in Qubec and Lower Canada had its own internal logic which, once elucidated, makes it one of the easier legal sources to consult.
1. Two prime Canadian examples are W.H.P. Clement, The Law of the Canadian Constitution (Toronto: Carswell, 1916) and W.P.M. Kennedy, The Constitution of Canada, 1534-1937: An Introduction to its Development, Law and Custom (London: Oxford University Press, 1938). For a more detailed discussion of Canadian and Quebec legal historiography, see G. Blaine Baker et al., "A Survey of Quebec Legal Historiography" in Sources in the Law Library of McGill University for a Reconstruction of the Legal Culture of Quebec, 1760-1890 (Montreal: McGill University, 1987), pp. 19-63.
2. Baker et al., "Survey", p. 31.
3. Donald Fyson, The Court Structure of Quebec and Lower Canada, 1764-1860 (Montreal: Montreal History Group, 1993).
4. See below.
5. While the Province of Canada after 1841 was divided into Canada East and Canada West, legislation and other legal records usually made reference to Lower Canada and Upper Canada in place of these (as in the Superior Court of Lower Canada, established in 1849); as such, the latter terms are used in this paper.
6. Baker et al., "Survey", p. 30.
7. Ibid., p. 20.
8. Jowitt's Dictionary of English Law, 2nd edition (London: Street & Maxwell, 1977).
9. Black's Law Dictionary, 6th edition (St. Paul, MN: West, 1990).
10. The term "statutory instrument," for example, dates from a British statute of the 1940s; and its predecessor, "statutory rules and orders," is limited to rules made under the authority of a specific act of Parliament, which was not the usual practice until the mid-nineteenth century (Jowitt's Dictionary). Even the term "statute" is ill-defined, meaning everything from a public act of Parliament (ibid.) to any enactment of any legislative body (Black's Law Dictionary).
11. This roughly follows William Blackstone's classic division of the law into the lex scripta and the lex non-scripta (Commentaries on the Laws of England (London: 1803), volum 1, p. 63), although Blackstone limits the first to "statutes, acts, or edicts" made by the king with the consent of parliament (ibid, volume 1, p. 85), and does not mention laws made by other institutions by delegation of authority from the king and parliament and whose force also came from their being formally written down (such as the acts of colonial legislatures).
12. Again, this follows Blackstone's definition of laws as rules applicable in general terms, such as the definition of a crime, rather than rules applicable to a specific circumstance, such as the confiscation of the goods of one person (ibid, p. 44).
13. Case law in particular is covered in Eric Wahn, Tamara Myers, and Peter Gossage, "Stating the Case: Law Reporting in Nineteenth-century Quebec" infra pp. 55-79.
14. For an idea of the range of such commentaries available to Quebec and Lower Canadian legal practitioners, see Baker et al., Sources.
15. The distinction between rules applicable in general terms and rules applicable to a specific circumstance is blurred in the case of statutes designed to regulate particular institutions that nonetheless affect the public at large, such as public-service corporations. The distinction between regulation of the public and internal regulation is equally problematic: even though in theory voluntary employees or members of a corporation "choose" to submit themselves to such rules, this is stretched in the case of factory labourers submitted to disciplinary regulation, or even the members of an all-inclusive professional corporation, such as doctors.
16. The fundamental text for the theory of reception as it stood in the eighteenth and early nineteenth centuries is Blackstone's Commentaries, volume 1, pp. 108-110. This work informed many Canadian legal commentators, such as Nicolas-Benjamin Doucet, whose discussion of the subject is lifted almost word-for-word from Blackstone (Fundamental Principles of the Laws of Canada... (Montreal, 1841), p. 18). The best scholarly discussion of the theory of reception is J.E. Côté, "The Reception of English Law" Alberta Law Review 15 (1977): 29-92, although since this was written with the modern lawyer in mind, it also incorporates later nineteenth- and twentieth-century case-law modifications to the reception principle.
17. Finer distinctions between types of colonies were also made; for example, "conquered" colonies that had a previous system of law incompatible with the Christian "laws of God" were treated in much the same fashion as "settled" colonies, although this in turn was tempered by other considerations (Côté, "Reception": 37-40).
18. Again, the theory made some exceptions to this general rule: for example, the acquisition of the colony by the British crown automatically introduced portions of English constitutional law (ibid., 41-43).
19. See the discussion of Imperial legislation below.
20. This was due to the contradiction between the articles of surrender and the treaty of Paris on the one hand, which could be construed to guarantee the French Canadians the maintenance of their civil laws, and the Royal Proclamation of 1763 on the other, which could be interpreted to have introduced the law of England in toto. See Hilda Neatby, Quebec: The Revolutionary Age (1760-1791) (Toronto: McClelland and Stewart, 1966), pp. 45-48.
21. Ibid., pp. 52-55.
22. F.-A. Isambert et al., Recueil général des anciennes lois françaises (Paris: 1822-33). This work is also available in a modern reprint.
23. An Abstract of those Parts of the Custom of the Viscounty and Provostship of Paris, which were Received and Practised in the Province of Quebec, in the Time of the French Government (London: 1772) [available on microfiche in the collection of the Canadian Institute for Historical Microfilming (hereafter CIHM), number 38448]; The Sequel of the Abstract... (London: 1773) [CIHM 24341]; Edits, ordonnances royaux, déclarations et arrêts du Conseil d'Etat du roi, concernant le Canada (Quebec: 1854-1856); see also Edits, ordonnances, déclarations et arrêts relatifs à la tenure seigneuriale... (Quebec: 1851) [CIHM 61642].
24. Pierre-Georges Roy, ed., Inventaire des ordonnances des intendants de la Nouvelle-France (1705-1760) conservées aux archives provinciales de Québec (Beauceville: L'Eclaireur, 1919) and Ordonnances, commissions, etc., etc., des gouverneurs et intendants de la Nouvelle-France, 1639-1706 (Beauceville: L'Eclaireur, 1924). The first gives only a summary description of each ordonnance, and the researcher must have reference to the original copies preserved in the Archives nationales du Québec; the second reproduces the complete text of each. For less comprehensive works that nonetheless reproduce many of the more important pieces of legislation, see François-Joseph Cugnet, An Abstract of the Several Royal Edicts and Declarations, and Provincial Regulations and Ordinances, that were in Force in the Province of Quebec in the Time of the French Government... (London: 1772) [CIHM 27867], which also appeared in French in Quebec in 1775 [CIHM 34905]; Ordonnances des intendants et arrêts portant règlements du Conseil supérieur de Québec... (Quebec: 1806) [CIHM 40524]; and Edits, ordonnances, déclarations et arrêts relatifs à la tenure seigneuriale... (Quebec: 1851) [CIHM 61642].
25. Claude de Ferrière, Nouveaux commentaires sur la coutume de la prévôté et vicomté de Paris (numerous editions in the late seventeenth and eighteenth centuries); Robert-Joseph Pothier Oeuvres de Pothier (Paris: 1823), and the English translation of his work on obligations, A Treatise on Obligations Considered in a Moral and Legal View (Newbern, N.C.: 1802).
26. Especially Traité abregé des anciennes loix, coutûmes et usages de la colonie du Canada... (Quebec: 1775) [CIHM 33321] and Traité de la loi des fiefs... (Quebec: 1775) [CIHM 33322].
27. Henri Desrivières-Beaubien, Traité sur les lois civiles du Bas-Canada. (Montreal: 1832-1833) [CIHM 34786-89]; Doucet, Fundamental Principles; Maximilien Bibaud, Commentaires sur les lois du Bas-Canada... (Montreal: 1859-1862) [CIHM 46876-78 and 29576-78].
28. Thomas McCord, The Civil Code of Lower Canada... (Montreal: 1867) [CIHM 40178].
29. There was some argument over whether the reception under the Quebec Act included English statutes made between 1763 and 1774, but in practice it seems that the later date was accepted. See André Morel, "La réception du droit criminel anglais au Québec (1760-1892)" Thémis 13 (1976): 472.
30. Only acts of parliament were received into colonies; other legislation that did not specifically extend to the colony, such as proclamations or orders-in-council, were generally held not to apply. See Côté, "Reception": 60-61.
31. Ibid.: 77-79.
32. This is evident from the Registers of the Quarter Sessions of the Peace for the District of Montreal, which are in the Pre-archivage of the Ministère de la Justice; see for example 5/8/1765 (ferries), 10/4/1766 (local regulations), 11/6/1773 (poor orphans), and 11/7/1781 (apprentices).
33. François-Joseph Cugnet's Traité de la police (Quebec: 1775), which reproduced many of the pre-Conquest colonial ordinances on police matters, stated that the work was designed to aid Grands Voyers and Justices of the Peace, the implicit assumption being that the matters covered by such ordinances were not encompassed under English criminal law as introduced by the Quebec Act; similarly, Joseph-F. Perrault's Le juge à paix et officier de paroisse, pour la province de Québec (Montreal: 1789), a translation of Richard Burn's widely used English manual for Justices of the Peace, left out all of the original's chapters on police matters as not being applicable to Quebec.
34. See the explanation of the difference between "public" or "general" statutes and "private" or "local" statutes, note 53 below.
35. Depending on the compilation, there are some 25 thick volumes of statutes for the period before 1775.
36. Blackstone, Commentaries volume 4 (in numerous editions throughout the late eighteenth and nineteenth centuries); Richard Burn, The Justice of the Peace and Parish Officer (also in numerous editions, including its French translation, Perrault's Juge à paix). Other such works include Jacques Crémazie, Les lois criminelles anglaises, traduites et compilées... (Quebec: 1842) [CIHM 33347], Joseph Chitty, A Practical Treatise on the Criminal Law... and The Practice of the Law in All its Departments... (both in several editions from the 1810s to the 1840s), and Hugh Taylor, Manual of the Office, Duties and Liabilities of a Justice of the Peace (Montreal: 1843) [CIHM 43246]; see also Baker et al., Sources, pp. 100-132, and Morel, "Réception": 524-26.
37. Côté, "Reception": 41-43.
38. This is clear from the various impositions of martial law in Quebec and Lower Canada, most notably during the American invasion in 1775-1776, and during the 1837-38 Rebellions.
39. Such as John F. Archbold, A Digest of the Law Relative to Pleading and Evidence... (London: 1821).
40. For example, William Earnshaw, ed., A Collection of the Statutes Now in Force, Relating to Shipping, Navigation, Commerce, and Revenue in the British Colonies and Plantations in America... (London: 1818) [CIHM 48659]; A Collection of the Acts Passed in the Parliament of Great Britain and of Other Public Acts Relative to Canada (Quebec: 1824) [CIHM 42695]; Statutes of the Imperial Parliament: Merchant Shipping, Customs, Passengers, Steam Navigation... (Montreal: 1853); Imperial Statutes Affecting British North America and Some of the British Possessions (Ottawa: 1869) [CIHM 54971]; or R.J. Wicksteed, Table of the Statutes of the Dominion of Canada... With... an Index to Imperial Statutes Affecting Canada and Wholly or Partly in Force (Ottawa: 1874) [CIHM 10743].
41. For example, Extract of the Minutes of Council... Containing His Majesty's Late Regulations Relative to the Waste Lands of the Crown (Quebec: 1798) [CIHM 36427].
42. Such as Arthur Doughty et al., eds., Documents Relating to the Constitutional History of Canada [1759-1828] (Ottawa: Public Archives of Canada, 1914-1935), and W.P.M. Kennedy, ed., Documents of the Canadian Constitution, 1759-1915 (Toronto: Oxford University Press, 1918).
43. I use "legislature" in its broadest sense, being any body that makes laws for a country or people.
44. The post-conquest civil government of Quebec was inaugurated in September 1764; the last ordinance passed by the Governor and Council before the Quebec Act was in 1773.
45. Although the Quebec Act came into force in May of 1775, the administrative turmoil caused by the American invasion later in 1775 delayed the passage of any new ordinances until 1777.
46. While the Constitutional Act came into effect in 1792, the first acts were not passed by the Legislature and sanctioned by the Governor until 1793. The last acts of the Legislature prior to the suspension of the Constitutional Act were passed in 1836.
47. These two types of acts are intermingled in the published collections of the acts, along with acts that extended only to Upper Canada; however, the text of each act clearly indicates whether it extended to Lower Canada, Upper Canada, or both.
48. The only gap in this collection is 1792 (4 George III), whose three ordinances are to be found only in the Quebec Gazette or the original copies in the National Archives in Ottawa. There are also several nineteenth-century reprints of ordinances made between 1777 and 1792, but as they do not include the text of ordinances not in force at the time of printing, they are of limited use.
49. National Archives of Canada, RG4 B6.
50. For the copies held by McGill's law library, for example, the English titles are Statutes of Lower Canada (1793-1836); Ordinances of the Governor and Special Council (1838-1841); Provincial Statutes of Canada (1841-1851); and Statutes of the Province of Canada (1852-1866).
51. (Toronto: 1857) [CIHM 54547]. The others indexes are A Complete Index to the Ordinances and Statutes of Lower-Canada... (Quebec: 1817) [CIHM 54822], and Tables Relative to the Acts and Ordinances of Lower Canada (Kingston: 1843) [CIHM 57555]. The two earlier indexes are useful for ascertaining in detail amendments made to ordinances or acts that were still in force at their respective dates of publication, but had been entirely repealed by the time Wicksteed's work appeared in 1857, as the latter simply noted such legislation as repealed, without tracing its previous life.
52. As the commissioners charged with this project explained in their preface, although the original intent was to produce a full-scale consolidation, in the end this proved too complicated, and they contented themselves with reprinting any legislation then wholly or partly in force, re-arranged under various headings, and with marginal references next to repealed or amended provisions.
53. This division was based on the English distinction between "public" and "private" statutes, the importance lying in the fact that while courts were expected to apply the former in all circumstances, they were to ignore the latter unless they were specially pleaded by one of the parties (Blackstone, Commentaries, volume 1, pp. 85-86). The logic of this distinction is not always clear: for example, acts relating to municipal corporations were considered "private", even though they affected the public at large.
54. Proclamations of the Governor, 21/2/1788, 24/7/1788, 29/3/1790, and 24/11/1790.
55. Rules and Articles for the Better Government of the Militia of the Province of Lower-Canada ... (Quebec: 1795) [CIHM 57298]; Règles et règlemens pour la formation, l'exercice et mouvemens de la milice de Bas-Canada (Quebec: 1804) [CIHM 48138]; Rules and Regulations for the Formation, Exercise & Movements of the Militia of Lower-Canada (Quebec: 1812) [CIHM 40474].
56. National Archives of Canada, RG68 (records of the Registrar General); this collection also includes an index to all proclamations issued before 1867.
57. Apart from the militia regulations cited above, other examples include Order of the Administrator in Chief in Council ... for the Regulation of Commerce Between This Province and the United States of America (Quebec: 1815) [CIHM 49139], and Regulations for the Management and Protection of the Provincial Canals... (Toronto: 1857) [CIHM 22608].
58. 59 George III c.6.
59. See, for example, the 1832 act incorporating the Champlain and St. Lawrence Railway (2 William IV c.58).
60. For Montreal, see Rules and Regulations of Police for the City and Suburbs of Montreal... (Montreal: 1810) [CIHM 40238]; Rules and Regulations of Police, for the City and Suburbs of Montreal (Montreal: 1817) [CIHM 40779]; Règles et règlemens de police pour la cité et les faubourgs de Montréal (Montreal: 1821) [CIHM 21100]; By-laws, Rules, Regulations and Ordinances of the Common-Council of the City of Montreal (Montreal: 1833) [CIHM 21419]; Additional By-laws, Rules, Regulations and Ordinances of the Common-Council of the City of Montreal (Montreal: 1833-40) [CIHM 46496]; Compilation of the Bye-laws and Police Regulations in Force in the City of Montreal... (Montreal: 1842) [CIHM 63664]; and Charles Glackmeyer, The Charter and Bylaws of the City of Montreal (Montreal: 1865). Regulations issued before or between these compilations are available in local newspapers such as the Quebec Gazette, the Montreal Gazette, or La Minerve.
61. For example, Extracts from the Laws of Lower Canada: By-laws and Regulations of the Trinity House... (Quebec: 1812) [CIHM 18509] or By-laws, Orders, Rules and Regulations of the Trinity House of Montreal... (Quebec: 1860) [CIHM 28077].
62. The changing hierarchical relationship between legislation made by the legislature, and legislation made by the executive, is a highly complex issue of constitutional law that lies beyond the scope of this paper; as such, I have chosen to represent them as occupying the same level on the hierarchy.
63. See for example the ordinance 6 George III (1766), the acts 35 George III c.8 (1795) and 6 William IV c.14 (1836), and the Consolidated Statutes for Lower Canada c.6 (1861). There were some qualifications to this general rule, especially with regards to criminal legislation. Before 1775, the Governor and Council could not pass any legislation affecting "the Life, Limb or Liberty of the Subject," thus effectively barring them from modifying any criminal legislation that imposed corporal or penal punishments. This disability was largely removed by the Quebec Act; however, few significant modifications were made to the criminal law proper (as opposed to legislation affecting the police) until the nineteenth century (Morel, "Réception": 474-75).
64. As specified in the 1777 ordinance giving Justices of the Peace the power to enact municipal regulations (17 George III c.15), or the 1840 charters of Montreal and Quebec (3&4 Victoria c.35 and c.36).
65. Statutes, acts, and ordinances passed in each session of the legislature were given consecutive chapter numbers based on the order in which they were passed; in each new session, the chapter numbers began again from one. When more than one session of the legislature was held in a particular year of a sovereign's reign, the different sessions were distinguished by an extra number after the sovereign's name, as in 2 Victoria (1) c.3 and 2 Victoria (2) c.4. Likewise, if a session of the legislature spanned more than one year of the sovereign's reign, both years were given, as in 10&11 George IV c.26.
66. Archives de la Ville de Montréal, conseil et comité exécutif, règlements et ordonnances, règlements municipaux (version officielle).
67. Proclamation of James Murray, 25/4/1766.
68. The period was usually given in the legislation itself, in a separate clause. In some cases, however, the period was given only in the superior legislation, as in the case of the 1777 ordinance giving Justices of the Peace of Quebec and Montreal the power to make municipal by-laws, which limited the force of these to two years from their date of promulgation.
69. 34 George III c.4 and 36 George III c.11.
70. Robert Christie, A History of the Late Province of Lower Canada... (Quebec: 1850), volume 3, pp. 133-136; Helen Taft Manning, The Revolt of French Canada, 1800-1835: A Chapter in the History of the British Commonwealth (Toronto: MacMillan, 1962), pp. 145-146.