592 PARLIAMENTS OF THE DOMINIONS [PART 111
Council exercised executive as well as legislative functions
right down to 1838, when the Council was separated into
two bodies, an Executive Council and a Legislative Council.
Before that time the Upper House had become very un-
popular, and in 1837 an address was sent to the Queen
praying for the grant of an elective Legislative Council.
The position was indeed anomalous, and Judge Haliburton
in 1829 had pointed out that it was desirable to make
the Council independent of the Governor, who had then
not only the power of nomination but of suspension, and
to confine it to legislative functions. He laid stress on the
anomaly of the same persons passing a law as the Legislative
Council, and then in their capacity as the Executive Council
sitting in judgement on their own Act and advising the
Governor to assent to it.
The instructions to Lord Durham of 1838 accordingly, in
appointing him Governor-in-Chief, provided for an Executive
Council not to exceed nine in number, and for a Legislative
Council, the number of whom residing in the province was
not, by appointment by the officer administering the Govern-
ment, to exceed fifteen. As a matter of fact, it was not
the Governor-General, but the Lieutenant-Governor who
carried on the administration.
In 1845 the Legislative Council asked that it should be
remodelled so as to have a defined constitution, with
payment of members, and they also desired that members
should hold by a clearly defined tenure. Lord Stanley
replied in a dispatch to Lord Falkland, the Lieutenant-
Governor, of August 20, 1845. Me stated that he was
willing to adopt for Nova Scotia the same rule as had been
adopted in New Brunswick,! under which the seats of
members were vacated either in the case of bankruptcy,
‘ In New Brunswick the number of members was increased in the
commission to Lord Monk to twenty-three as a maximum by local appoint-
ment, the total being unlimited as far as appointments by the Imperial
Government were concerned. On federation an Act (c. 30) of 1868 limited the
number to eighteen and vested the appointment in the Lieutenant-Governor
in Council : Hannav, ii. 278.
