[bourinot] CANADIAN CONSTITUTIONAL HISTORY 163 



XXXY, Legislation Affecting the Council since 18G7. 



Before I proceed to state the opinions I base on the facts set forth in 

 the foregoing constitutional review with respect to the tenure of the 

 office of legislative councillor and the powers of the Crown in their 

 regard at the present time, it will be convenient to complete the historical 

 summary by reference to legislation that has passed since 1867 relative 

 to the legislative council. In the year previous to the coming into force 

 of the British ]S"orth America Act, the house of assembly of Nova Scotia 

 proposed an address to the Queen praying for a limitation of the number 

 of legislative councillors to eighteen, but it was not finally concurred in 

 by the upper house. ^ Since 1867, no legislation on the subject has been 

 jjassed, and consequently the number remains at the maximum of twenty- 

 one, as set forth in Lord Monck's commission. ^ Since 1872, an act ^ was 

 passed providing thai the "appointment of members of the legislative 

 council of the province shall be vested in the lieutenant-governor who 

 shall make such appointments in the Queen's name, by instrument of the 

 great seal of the province." On the consolidation of the statutes, another 

 section was added, providing that " any member of the legislative council, 

 who shall be absent from his place therein for two sessions consecutively 

 without the consent of the lieutenant-governor shall vacate his seat as 

 such councillor" — a legal enactment, in effect, of a clause that had always 

 appeared in the commissions and instructions of governors before con- 

 federation. In 1876 the legislature passed another act, one of the sections 

 of which provides that " in all matters and cases not specifically jDrovided 

 for by this act or by any other statute of this province, the legislative 

 council of this province, the committees and members thereof shall at any 

 time hold, enjoy, and exercise such and the like privileges, immunities 

 and powers as shall be for the time being enjoyed and exercised by the 

 Senate of the Dominion of Canada, and by the respective committees and 

 members thereof" The learned counsel who reported on the case of 

 bankruptcy in 1883 were quite correct in stating* that this section "does 

 not affect in any way the tenure of office of the legislative councillors.' 

 But it does give them, in my opinion, the right to inquii-e into any 

 matter affecting the conduct or character of a member and connected 

 with the rights, privileges, dignity and honour of the body. In inquir- 

 ing into the matter of Mr. Macdonald's bankruptcy in 1883 they followed 

 a course quite in accord with general parliamentary precedent and with 

 the practice of the Senate itself in analogous cases affecting the dignity 

 and constitution of the house. It was their duty to inquire into and report 

 on the facts, and to refer them to the lieutenant-governor, who alone 



1 See Bourinot's Con.st. Hist., p. 99. 

 - See above, p. 159. 

 » See N. S. Rev. Stat. (5th ser.) c. 2. 

 ■» See above, p. 161. 



