The Abolition of the Legislative Council of Nova Scotia, 1925-1928 Charles Paul Hoffman Institute of Comparative Law McGill University December 7, 2011 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws. © Charles Paul Hoffman, 2011 Abstract From 1758 to 1928, Nova Scotia had a bicameral Legislature made up of the House of Assembly and the Legislative Council. In the period following Confederation, the Legislative Council came under increasing fire as unnecessary, expensive, and anachronistic. Yet, for a period of half a century, all efforts to abolish it failed. Following the landslide Conservative victory in the provincial election of 1925, however, incoming Premier Edgar Nelson Rhodes led a crusade to abolish the Legislative Council once and for all, a crusade that ultimately led to the Judicial Committee of the Privy Council in Westminster. Armed with a Privy Council opinion permitting him to dismiss existing members of the Legislative Council and appoint an unlimited number of replacements, on February 24, 1928, Rhodes was able to push through an abolition bill. At the end of the 1928 session, the Legislative Council ceased to exist, its powers devolved upon the House of Assembly and Lieutenant- Governor. This thesis examines the history of this battle, including the nature of the Nova Scotia constitution, Rhodes’ initial push for abolition, his appeal to Ottawa when that proved unsuccessful, the litigation before the Supreme Court of Nova Scotia and the Judicial Committee of the Privy Council, and the final abolition of the Legislative Council. ! ! ! ! De 1758 à 1928, la Nouvelle-Écosse a eu une législature bicamérale constituée de la Chambre d’assemblée et du Conseil législatif. Au cours de la période suivant la Confédération, le Conseil législatif fut incessamment attaqué, accusé d’être inutile, coûteux et anachronique. Cela étant, durant une période d’un demi-siècle, tous les efforts pour l’abolir faillirent. Suite à l’écrasante victoire des Conservateurs aux élections provinciales de 1925, cependant, le Premier Ministre entrant Edgar Nelson Rhodes lança une croisade pour abolir définitivement le Conseil législatif, qui arriva jusqu’au comité judiciaire du Conseil privé à Westminster. Armé d’une opinion du Conseil privé lui permettant de démettre les membres existants du Conseil législatif et de nommer un nombre illimité de remplaçants, Rhodes put faire voter un projet de loi d’abolition le 24 février 1928. A la fin de la session législative de 1928, le Conseil législatif cessa d’exister, et ses pouvoirs furent dévolus à la Chambre d’assemblée et au lieutenant-gouverneur. Ce mémoire étudie l’histoire de cette bataille et se penche notamment sur la nature de la constitution de Nouvelle-Écosse, l’impulsion initiale donnée par Rhodes à la bataille pour l’abolition, son appel à Ottawa lorsque l’impulsion initiale fut infructueuse, le litige à la Cour suprême de Nouvelle-Écosse et au comité judiciaire du Conseil privé, et enfin sur l’abolition finale du Conseil législatif. Table of Contents Introduction! 1 The Legislative Council in the Nova Scotia Constitution! 24 1925-1926: The Final Battle for Abolition Begins! 54 The Supreme Court of Nova Scotia and the Judicial Committee of the Privy Council! 102 1927-1928: Abolition and Aftermath! 129 Conclusion: Into the History Books! 167 Bibliography! 175 Table of Figures Figure 1: Photograph of the Red Chamber! 1 Figure 2: Donald McRitchie, “Will He Get a Bob?”! 49 Figure 3: Donald McRitchie, “When a Feller Needs a Friend”! 54 Figure 4: Donald McRitchie, “His Last Stand”! 101 Figure 5: Donald McRitchie, “To the British Privy Council”! 120 Figure 6: Donald McRitchie, “Anything but Permanent”! 131 Figure 7: Donald McRitchie, “Still Going Strong”! 137 Figure 8: Donald McRitchie, “Release at Last”! 139 Figure 9: Donald McRitchie, “Washing away Old Landmarks”! 140 Figure 10: Donald McRitchie, “The Old Rusty Key Ain’t What She Used to Be”! 151 Figure 11: Donald McRitchie, “Clearing the Way”! 158 Figure 12: Donald McRitchie, “The Passing of the Old Order”! 167 Cover Image: Harry J Moss, composite photograph depicting members of the last Legislative Council (1928), Halifax, Province House Collection/CNS. Acknowledgements I would like to thank everyone who has provided assistance in bringing this thesis to a successful conclusion, most especially my supervisor, Tina Piper, who provided invaluable advice and support and who never turned me away from her office when I had a problem; my classmate and friend Mathilde Groppo for translating my abstract into French; the dedicated personnel at the Nova Scotia Legislative Library, Nova Scotia Archives & Records Management, and the McGill University Library Government Information Service for the assistance in locating the documents without which this story could not have been told; and the McGill University Faculty of Law for providing me with the research funding that enabled me to travel to Halifax, without which this thesis would not have been possible. Finally, I would like to thank Shannon and Thessaly for bringing joy to the half of my life that does not involve musty old documents. I. Introduction Visitors to Province House in Halifax, Nova Scotia, are likely to find three rooms of interest on the second floor. At the north end of the building is the power centre of the province: the Green Chamber, home of the Nova Scotia House of Assembly, where government and opposition have faced off since before the introduction of responsible government in 1848. Down the hall, across from the grand centre stairway, is the chamber formerly belonging to the Nova Scotia Supreme Court, where Joseph Howe defended himself against charges of seditious libel in 1835, now home to the beautiful Legislative Library. Finally, at the end of the hall, at the south end of Province House, is the Red Chamber, a room Figure 1 without a purpose since 1928, when its prior occupant, the Legislative Council, was abolished. In contrast to the still- living Green Chamber and Legislative Library, The Red Chamber, photograph by Charles Paul Hoffman visitors will find the table and chairs of the Red Chamber blocked off by rope. It is, in essence, an empty museum to an unmourned entity. From the origins of British government in Nova Scotia, there had been a council. The first, established in 1719, combined the roles of cabinet, court of appeal, and upper house of the provincial Legislature. Known simply as the Council or the Council of Twelve (for the twelve members of which it was customarily composed), it came under increasing attack. In 1838, the British Government, finally giving in to popular demands for reform, split the Council of Twelve into separate Executive and Legislative Councils (the judicial functions having for the most part earlier been transferred to the Supreme Court of Nova Scotia). Although the Legislative Council was initially accepted as an integral component of Nova Scotia government, as decades passed it came to be seen as increasingly antiquated and unnecessary, especially after Confederation transferred many of the most important (and controversial) concerns to the Dominion Parliament. While an appointed upper house might have served an important role when the Nova Scotia Legislature had to face questions of international trade, national defence, criminal justice, and navigation, it seemed an extravagance when the Legislature’s jurisdiction had been circumscribed to matters such as education, public health, and management of public lands. Confederation also took a second toll on the Legislative Council, as it suddenly found its benches empty as Councillors left to take up seats in the Dominion government, House of Commons, or, especially, Senate. Robbed of its most important functions and its most respected members, the Legislative Council of Nova Scotia suddenly seemed a lot less important. Even under these circumstances, the Legislative Council might have been able to survive, a vestige of an earlier time when all British-inspired governments had bicameral legislatures. But, one final fact militated against the Council: from the grant of responsible government in 1848 until the 1950’s, the Liberal Party dominated Nova Scotian politics. During that hundred years, Conservatives held a majority in the Assembly only four times, from 1857-1860 (under Premier James W. Johnston), 1863-1867 (Premiers Johnston/ 2 Charles Tupper/Hiram Blanchard), 1878-1882 (Premiers Simon H. Holmes/John Sparrow Davis Thompson), and 1925-1933 (Premiers Edgar Nelson Rhodes/George S. Harrington), for a total of less than nineteen years. As the Legislative Council consisted of members appointed for life by the Lieutenant-Governor on the advice of the Premier, this meant the Council was strongly dominated by the Liberals for almost the entire period. In 1882, for instance, the moment of greatest Conservative strength in the Council prior to 1928, the Liberals still held a majority of three.1 This naturally created a situation in which the Conservative Party, never able to gain a majority in the Legislative Council, became vocal proponents of abolition, while the Liberals, the reforming party that had brought responsible government to Nova Scotia, were reticent defenders of the Council at best. The Legislative Council thus frequently found itself as its sole genuine defender, an awkward position for a house without democratic legitimacy. While other Canadian provinces had also had Legislative Councils, none found it as difficult