Legislative Council of Nova Scotia

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Legislative Council of Nova Scotia_table_infobox_0

Legislative Council of Nova ScotiaLegislative Council of Nova Scotia_header_cell_0_0_0
TypeLegislative Council of Nova Scotia_header_cell_0_1_0
TypeLegislative Council of Nova Scotia_header_cell_0_2_0 Upper house of the General Assembly of Nova ScotiaLegislative Council of Nova Scotia_cell_0_2_1
HistoryLegislative Council of Nova Scotia_header_cell_0_3_0
FoundedLegislative Council of Nova Scotia_header_cell_0_4_0 1838 (1838)Legislative Council of Nova Scotia_cell_0_4_1
DisbandedLegislative Council of Nova Scotia_header_cell_0_5_0 May 31, 1928 (1928-05-31)Legislative Council of Nova Scotia_cell_0_5_1
Meeting placeLegislative Council of Nova Scotia_header_cell_0_6_0

The Legislative Council of Nova Scotia was the upper house of the legislature of the Canadian province of Nova Scotia. Legislative Council of Nova Scotia_sentence_0

It existed from 1838 to May 31, 1928. Legislative Council of Nova Scotia_sentence_1

From the establishment of responsible government in 1848, members were appointed by the Lieutenant Governor of Nova Scotia on the advice of the Premier. Legislative Council of Nova Scotia_sentence_2

Before Confederation Legislative Council of Nova Scotia_section_0

The Legislative Council had its origins in the older unified Nova Scotia Council, created in 1719 and appointed in 1720, which exercised a combination of executive and judicial functions. Legislative Council of Nova Scotia_sentence_3

Its functions were more formally specified in instructions issued by the Board of Trade in 1729. Legislative Council of Nova Scotia_sentence_4

The Council acted as the Governor's cabinet and as the province's General Court until the Supreme Court of Nova Scotia was established in 1754 (but its judicial function was not totally eliminated). Legislative Council of Nova Scotia_sentence_5

It assumed a legislative function in 1758, when the 1st General Assembly of Nova Scotia was called, by acting as its upper house. Legislative Council of Nova Scotia_sentence_6

The constitution of the Council and its form of tenure changed from time to time, usually upon the issue of a Commission to an incoming Governor: Legislative Council of Nova Scotia_sentence_7

Legislative Council of Nova Scotia_table_general_1

Constitution of the Legislative Council of Nova Scotia (1729-1861)Legislative Council of Nova Scotia_table_caption_1
YearLegislative Council of Nova Scotia_header_cell_1_0_0 InstrumentLegislative Council of Nova Scotia_header_cell_1_0_1 DescriptionLegislative Council of Nova Scotia_header_cell_1_0_2
1729Legislative Council of Nova Scotia_cell_1_1_0 Instructions from the Board of Trade to Lieutenant-Governor Richard PhilippsLegislative Council of Nova Scotia_cell_1_1_1 Legislative Council of Nova Scotia_cell_1_1_2
1749Legislative Council of Nova Scotia_cell_1_2_0 Instructions to Edward CornwallisLegislative Council of Nova Scotia_cell_1_2_1 Legislative Council of Nova Scotia_cell_1_2_2
1764Legislative Council of Nova Scotia_cell_1_3_0 Commission appointing Montague WilmotLegislative Council of Nova Scotia_cell_1_3_1 Legislative Council of Nova Scotia_cell_1_3_2
1838Legislative Council of Nova Scotia_cell_1_4_0 Special Royal Commission to Lord Falkland

Commission appointing Lord Durham as Governor-GeneralLegislative Council of Nova Scotia_cell_1_4_1

Legislative Council of Nova Scotia_cell_1_4_2
1846Legislative Council of Nova Scotia_cell_1_5_0 Commission appointing Earl Cathcart as Governor-GeneralLegislative Council of Nova Scotia_cell_1_5_1 Legislative Council of Nova Scotia_cell_1_5_2
1861Legislative Council of Nova Scotia_cell_1_6_0 Commission appointing Lord Monck as Captain-General and Governor-in-Chief, together with separate InstructionsLegislative Council of Nova Scotia_cell_1_6_1 Legislative Council of Nova Scotia_cell_1_6_2

During the period of 1845-1846, a sequence of ambiguous correspondence occurred between Lord Falkland and the Secretary of State for War and the Colonies (initially Edward Stanley, followed by William Ewart Gladstone), on the subject of granting life tenure to members of the Legislative Council. Legislative Council of Nova Scotia_sentence_8

Cathcart's commission and instructions were, however, not formally changed. Legislative Council of Nova Scotia_sentence_9

In 1896, however, J.G. Legislative Council of Nova Scotia_sentence_10 Bourinot expressed his opinion that the Crown had effectively yielded its right to appoint at pleasure, thus conferring a tenure for life, but he also conceded that the provincial legislature had the power to abolish the Council. Legislative Council of Nova Scotia_sentence_11

Post-Confederation Legislative Council of Nova Scotia_section_1

The Nova Scotia Legislature codified the procedure of appointment in 1872, by specifying that they would be made by the Lieutenant-Governor under the Great Seal of the Province. Legislative Council of Nova Scotia_sentence_12

This was revised in 1900 to specify that the power of appointment rested with the Lieutenant-Governor in Council. Legislative Council of Nova Scotia_sentence_13

Until 1882, the Executive Council normally included one Minister with portfolio and one Minister without portfolio from the Council. Legislative Council of Nova Scotia_sentence_14

During the administration of William Thomas Pipes, the practice was altered so that only the Government Leader in the Council would be appointed as a Minister without portfolio in the future. Legislative Council of Nova Scotia_sentence_15

After 1899, the Council performed all its deliberations on bills solely in committee, after they had been given first reading. Legislative Council of Nova Scotia_sentence_16

This effectively placed its work in obscurity, far from the public eye. Legislative Council of Nova Scotia_sentence_17

1925 reform Legislative Council of Nova Scotia_section_2

With the Assembly seemingly unable to abolish the Legislative Council without its permission, it eventually came to consider reforming the Council as a next-best alternative. Legislative Council of Nova Scotia_sentence_18

The first serious reform proposal was considered in 1916, when the Assembly passed a reform bill based on the Imperial Parliament Act 1911, which limited the veto of the House of Lords. Legislative Council of Nova Scotia_sentence_19

The bill would have changed the Council's absolute veto to a suspensory veto; if the Assembly passed a bill in three successive legislative sessions over two years, the bill would go into effect notwithstanding the lack of the Council's consent. Legislative Council of Nova Scotia_sentence_20

This bill, which was presented to the Council in the last days of the 1916 session at the height of the first World War, was received badly by the Council, which refused to pass it. Legislative Council of Nova Scotia_sentence_21

A similar bill was considered by the Assembly the following year, but was dropped after the Council threatened not to pass any other bills sent to it by the Assembly. Legislative Council of Nova Scotia_sentence_22

The subject of abolition was revived in 1922, when the Assembly passed a resolution calling for the Legislative Council's resolution. Legislative Council of Nova Scotia_sentence_23

Instead of sending an abolition bill to the Council, however, the Assembly formed a delegation to meet with members of the Legislative Council to consider methods of abolition. Legislative Council of Nova Scotia_sentence_24

When the two delegations met together, the Assembly members were surprised that while the Councillors were unwilling to accept abolition, they were quite interested in potential reforms designed to make the Legislature work more effectively, including the possibility of electing the Council. Legislative Council of Nova Scotia_sentence_25

As it was once again late in the legislative session, there was not sufficient time to negotiate a specific proposal, however. Legislative Council of Nova Scotia_sentence_26

As such, the delegations requested permission from the Assembly and Council to continue working on the matter until the 1923 session. Legislative Council of Nova Scotia_sentence_27

When the Legislature met again in 1923, the joint committee met again, but discussions once more led nowhere, as each group expected the other to offer a specific proposal. Legislative Council of Nova Scotia_sentence_28

During the 1924 session, the Assembly once more considered an abolition bill proposed by Howard William Corning, House Leader of the Conservative Party. Legislative Council of Nova Scotia_sentence_29

After vehement debate, in which Liberal MHAs defended the Legislative Council as a bulwark against radicalism, the bill was defeated in the Assembly. Legislative Council of Nova Scotia_sentence_30

The following year, Premier Armstrong introduced a bill to reform the Legislative Council in three respects: Legislative Council of Nova Scotia_sentence_31

Legislative Council of Nova Scotia_ordered_list_0

  1. it implemented a framework similar to that of the Parliament Act 1911;Legislative Council of Nova Scotia_item_0_0
  2. it limited the tenure of office of new appointees to the Council to ten years, although Councillors would be eligible for reappointment; andLegislative Council of Nova Scotia_item_0_1
  3. it imposed an age limit of seventy for new members and seventy-five for existing members.Legislative Council of Nova Scotia_item_0_2

After criticism from the Halifax Morning Chronicle, the bill was amended to drop the eligibility for reappointment. Legislative Council of Nova Scotia_sentence_32

The amended bill passed the Assembly on a party line vote, and was sent to the Council, which further amended it to remove the age limit for sitting Councillors, increase the age limit for new appointees to seventy-five, and prohibit use of the new procedure to abolish the Council without its consent. Legislative Council of Nova Scotia_sentence_33

The revised bill subsequently received Royal Assent. Legislative Council of Nova Scotia_sentence_34

As the reform bill was passed barely a month before an election in which the Liberals were expected to do poorly, it was immediately criticized by Conservatives as a ploy to extend Liberal rule beyond the grave. Legislative Council of Nova Scotia_sentence_35

When the Conservatives won a resounding victory, they almost immediately reopened plans to abolish the Legislative Council. Legislative Council of Nova Scotia_sentence_36

Abolition Legislative Council of Nova Scotia_section_3

Following the Conservative landslide in 1925, the Council abolition debate was reopened. Legislative Council of Nova Scotia_sentence_37

The Conservatives' first Speech from the Throne in 1926 called for the abolition of the Council; a few weeks later, Premier Edgar Rhodes introduced an abolition bill in the Assembly. Legislative Council of Nova Scotia_sentence_38

Meanwhile, Rhodes worked behind the scenes to try to negotiate for the Council to agree to abolish itself. Legislative Council of Nova Scotia_sentence_39

In February, Rhodes offered the pre-reform Councillors pensions of $1000 per annum for ten years, and the post-reform Councillors $500 per annum for ten years; this proposal was rejected almost unanimously by the Council as a "bribe", and inspired the Council to pass a resolution affirming its important constitutional role. Legislative Council of Nova Scotia_sentence_40

With the Council seemingly unwilling to abolish itself, Rhodes considered alternative means of achieving abolition. Legislative Council of Nova Scotia_sentence_41

In early March, he settled on a scheme to appoint twenty Councillors in addition to the eighteen already sitting in the Council. Legislative Council of Nova Scotia_sentence_42

As the Council was presumed to be limited to twenty-one, this would have resulted in seventeen Councillors over and above the presumed constitutional limit. Legislative Council of Nova Scotia_sentence_43

Wary of the constitutionality of the appointments, Lieutenant-Governor James Cranswick Tory wrote of the plan to Secretary of State in Ottawa, stating that he planned to make the appointments on March 15, 1926, unless instructed otherwise by the Governor General. Legislative Council of Nova Scotia_sentence_44

After receiving an opinion from the Law Officers expressing the belief that the appointments in excess of twenty-one would be unconstitutional, the Governor General instructed Lieutenant-Governor Tory not to make the appointments for the time being, and suggested that the matter should be judicially considered. Legislative Council of Nova Scotia_sentence_45

Rebuffed by Ottawa, the Rhodes government then filed a reference for an advisory opinion with the Supreme Court of Nova Scotia. Legislative Council of Nova Scotia_sentence_46

The reference presented four questions: Legislative Council of Nova Scotia_sentence_47

Legislative Council of Nova Scotia_ordered_list_1

  1. Has the Lieutenant-Governor of Nova Scotia, acting by and with the advice of the Executive Council of Nova Scotia, power or authority to appoint in the name of the Crown by instrument under the Great Seal of the Province so many Members of the Legislative Council of Nova Scotia that the total number of the Members of such Council holding their offices or places as such Members wouldLegislative Council of Nova Scotia_item_1_3

Legislative Council of Nova Scotia_description_list_2

  • Legislative Council of Nova Scotia_item_2_4
    • (a) exceed twenty-one, orLegislative Council of Nova Scotia_item_2_5
    • (b) exceed the total number of the Members of said Council who held their offices or places as such Members at the Union mentioned in Section 88 of The British North America Act, 1867?Legislative Council of Nova Scotia_item_2_6

Legislative Council of Nova Scotia_ordered_list_3

  1. Is the membership of the Legislative Council of Nova Scotia limited in number?Legislative Council of Nova Scotia_item_3_7
  2. Is the tenure of office of Members of the said Council appointed thereto prior to May 7, A.D. 1925, during pleasure or during good behaviour or for life?Legislative Council of Nova Scotia_item_3_8
  3. If such tenure is during pleasure, is it during the pleasure of His Majesty the King, or during the pleasure of His Majesty represented in that behalf by the Lieutenant-Governor of Nova Scotia acting by and with the advice of the Executive Council of Nova Scotia?Legislative Council of Nova Scotia_item_3_9

In October 1926, the Nova Scotia Supreme Court issued a divided opinion, in which: Legislative Council of Nova Scotia_sentence_48

Legislative Council of Nova Scotia_description_list_4

  • Legislative Council of Nova Scotia_item_4_10
    • all judges agreed that a full Legislative Council consisted of 21 members;Legislative Council of Nova Scotia_item_4_11
    • two judges ruled that the Lieutenant-Governor could appoint more than twenty-one Councillors, while two ruled that he could not;Legislative Council of Nova Scotia_item_4_12
    • three of the four judges ruled that the Councillor's tenure of office was at pleasure, but only two ruled that it was at the pleasure of the Lieutenant-Governor, while the third judge ruled that they served at the pleasure of His Majesty the King; the fourth judge ruled that Councillors served for life.Legislative Council of Nova Scotia_item_4_13

With the court effectively evenly divided on all issues, it granted leave to appeal its ruling to the Judicial Committee of the Privy Council. Legislative Council of Nova Scotia_sentence_49

In October 1927, the Board, in a decision written by Viscount Cave, ruled that: Legislative Council of Nova Scotia_sentence_50

Legislative Council of Nova Scotia_description_list_5

  • Legislative Council of Nova Scotia_item_5_14
    • from 1838 to 1867, there was nothing in any of the commissions to the Province's successive Governors that limited the number of Councillors that could be appointed, nor was there anything of that nature to be found in any other correspondence on the subject;Legislative Council of Nova Scotia_item_5_15
    • the fact that s. 88 of the British North America Act 1867 continued the constitution of the Province's Legislature did not mean that the number of Councillors was to be frozen at a given number;Legislative Council of Nova Scotia_item_5_16
    • Councillors were solely appointed at pleasure; andLegislative Council of Nova Scotia_item_5_17
    • tenure is "during the pleasure of His Majesty represented in that behalf by the Lieutenant-Governor of Nova Scotia acting by and with the advice of the Executive Council of Nova Scotia."Legislative Council of Nova Scotia_item_5_18

In the weeks before the 1928 legislative session, Rhodes dismissed all but one of the Liberal Councillors appointed before 1925 and appointed enough new Conservative members to reach the symbolic number of twenty-two (to emphasize the Lieutenant-Governor's constitutional right to increase the size of the Council). Legislative Council of Nova Scotia_sentence_51

On February 24, 1928, the now Conservative-dominated Council passed an abolition bill sent to it days before by the Assembly. Legislative Council of Nova Scotia_sentence_52

Under the terms of the bill, the Council would be abolished as of May 31, 1928, so as to avoid any constitutional problems with legislation passed during the 1928 session. Legislative Council of Nova Scotia_sentence_53

See also Legislative Council of Nova Scotia_section_4

Legislative Council of Nova Scotia_unordered_list_6

Credits to the contents of this page go to the authors of the corresponding Wikipedia page: en.wikipedia.org/wiki/Legislative Council of Nova Scotia.