■>. IMAGE EVALUATION TEST TARGET (MT-3) '^ /. 1.0 I.I l^|28 |25 laft 11.25 11.4 - 6" I vl M. V] /: W "J- 7 Photographic Sciences Corporation 33 WIST MAIN smilT WIBSTIR.N.Y. 14580 (716) 873-4503 CIHM/ICMH Microfiche Series. CIHIVI/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notat/Notas tachniques at bibliographiquaa Tha Inatituta haa attamptad to obtain tha bast original copy availabia for filming. Faaturas of this copy which may ba bibllographically uniqua, wliich may altar any of tha imagaa in tha raproduction, or which may significantly changa tha usual mathod of filming, ara chaclcad balow. [V7| Colourad covars/ LiLl Couvartura da coulaur |~~| Covars damagad/ D D D D Couvartura endommagia Covars restored and/or laminated/ Couverture restaurAe et/ou pelliculte I I Cover title missing/ □ Le titre de couverture manque r~~| Coloured maps/ Cartes giographlquas en couleur □ Coloured ink (i.e. other than blue or blacic)/ Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ ReliA avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure serr^e peut causer de I'ombre ou de la distortion le long de la marge intArieure Bianit leaves added during restoration may appear within tha text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches aJoutAas lors d'une restauration apparaissent dans le texte, mais, lorsque cela Atait possible, ces pages n'ont pas AtA filmies. Additional comments:/ Commentaires supplAmentaires: The tot L'Institut a microfilm* l« meiilaur axemplaira qu'il lui a 4tA possible da sa procurer. Les details de cet exempiaira qui aont paut-Atra uniques du point de vue bibllographiqua, qui peuvent modifier une image raproduita, ou qui peuvent exiger une modification dans la mAthoda normala de filmaga sont indiquAs ci-dessous. □ □ D Colourad pages/ Pages de couleur Pages damaged/ Pages endommagtes Pages restored and/or laminated/ Pages restaur^ias et/ou pellicul6es Pages discoloured, stained or foxed/ Pages d6colorAes, tachattes ou piqutes Pages detached/ Pages d6tach6es Showthrough/ Transparence The pos oft film Ori( beg the sion othc first sion oril I I Quality of print varies/ Qualit6 InAgale da I'lmprassion Includes supplementary material/ Comprend du material suppi^mantaira Only edition available/ Seule Edition diaponibia The shal TIN( whi( Map diffe antir begii right requ metl Pages wholly or partially obscured by errata slips, tissues, etc.. have been refilmed to ensure the best possible image/ Les pages totalament ou partieilement obscurcies par un fauillet d'errata. une pelure. etc.. ont M filmies A nouveau de fa^on A obtenir la maiileure image possible. This item is filmed at the reduction ratio checked below/ Ce document est filmi au taux de reduction inJiquA ci-dessous. 10X 14X 18X 22X 26X 30X • y 12X 16X 20X 24X 28X 32X The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada L'exemplaire film6 fut reproduit gr^ce d la gin^rositd de: Bibliothdque nationale du Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. / Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettet^ de l'exemplaire film6. et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol ^^- (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les exemplaires originaux dont la couverture en papier est imprim^e sont filmis en commenpant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont filmds en commengant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaTtra sur la dernidre image de cheque microfiche, selon le cas: le symbole — ► signifie "A SUIVRE ", le symbols V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre film6s A des taux de reduction diff^rents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est film6 A pertir de Tangle supirieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 32X 1 2 3 4 5 6 5 '41^ • J SCtt HISTC ( tLlSHED BY THE ^ ■ Prlc» Twenty-five Oente THE HANITOBA 3C«00L QUESTION CONSIDERED HISTORICALLY, LEGALLY AND CONTROVERSIALLY 1 . BY L0UI8 I^ K11IJ5S. ft? •-^^o^^ t ^Toronto : ^Umm BV THE MUKKAV PHINTmo COMPANV. 13-15 ADKLAIDE ST. EAST | WILLIAt'lSnN (Sf CO'Y, MOni..s|.l,r,i:KS, * 11 TOKOi^JTO. Mar H LSI ITULISlll / THE Manitoba School Question CONSIDEUEI; Historically, Legally and Controvk RSIALLY. By LOUIS p. KRIHS. 'rolMINTO : ITI5IJS1IK1) 15V THM IMlHilAV PRINTINO C()IV1I'ANVM:M5 ADKLAIDE ST., E. iH!»r». i e i\:..| ■o Kntercd, acconliiiK to tlio Act of l'arli:iinoiit, of Ciiiuulii, in tlic yoar of our Lord one thousand ciglil hundred andnini"ly-llv(!, by Lours 1'. Kiuns, hi tlic Officn of Uio Ministt-r of At'riculture, al Ottawa. « r liEbWC E lid red It is usually, I think, the case tluit the reader will first i)eruse the work and then if time allows <,dauee over the ])refaee. You will lose nothing by adopting that most excellent i)lan in the [)re- seut instance, providing either the work itself or the preface are thought worthy of attention. I commenced a somewhat minute study of the history of the educational question in Canada with relation to denominational, dissentient and Separate Schools in the full belief that so far as Manitoba was concerned it was imi)()ssil)le, considering the date at which that Province entered the Union, that a minority — a very small minority — could have rights that overrode the will of the Legislature as expressed by an overwhelming majority. I will not deny that as a Protestant and an Orangeman, having no sympathy with Se})arate Schools as schools, though desirous of allowing my fellow-subjects of the Koman Catholic faith every i)ossible liberty of conscience and latitude of action, my desires may not have to some extent influenced my. views as above expressed. That the inexoral)le Facts as ascertained l)y careful study, force me to the o[)[)osite conclusion — to the conclusion that in- dubital)ly the Roman Catholic minority in Manitol)a hav(; in regard to Separate Schools, Itights under the law -guaranteed by the constitution and [)le(lged by the nation, lead to the belief that there might be many others, similarly circumstanced as I was and equally desirous of knowing the truth and al)iding by it. For, I venture to submit with certain confidence that the National Honor is of even great(U' im|)ortance than the; National School, and that the [)reservation of the former is essential to the eventual establishment of the latter. IV. r HE FACE. The present work is designed to give tliose who wisli to get at the facts a ready means of doing so. It ecjntains, I l)elieve, everything material to a full understanding of the matter under discussion, and yet kept within a comi)aHS that will not appal a busy man. Wherever })ossil)le legal terms have been avoided and popular language used, the aim being to supi)ly a book of instruc- tion but not necessarily a text book. For a similar reason a number of the arguments advanced and deductions drawn by })latf()rm speakers and writers in the ju'ess have not even been mentioned— they would but cloud the issue without adding to the data. May I urge here the wisdom, and not alone the wisdom Init the duty — the i)atri(jtic duty — of every Canadian, at a time like the present, when questions are at issue calculated to arouse the most rancorous feelings, the most heated })reju(lices, the dangers of a sectarian strife the end whereof no man can foi'see, to I'emombei' that the utmost tenderness and consideration for the consciences of others is perfectly consistent with the must valorous defence of the dictates of his own, and that the (equities of a dis})ute are not found in the strength of one party or the weakness of the other. He who lights the fires of sectarian strife burns straw it is true, l)ut a blaze of sti'aw may start a conflagration that will consume the whole fabric of our confederation. Let us settle our differences justly — therefore amical)ly — and instead of destroying Confederation build up in Canada a nation. LOUIS P. KIIIBS. Toronto, May, 18' lo. 1 -r*'' CONTENTS. ClIAPTKK T. — I*'i(Hii ill*; Cfipitulalioii t(» Coiifwhicatioii ClIAI'TKK TT. Tlic British Noilli America Act - GlIAPTKU TIT. — New Jjruiisvvick Scliool Case; ClIAI'TEIl IV. — Prince Edward Island .School Case CUAPTEU V. — Manitoba Down to the Union ClIAPTEH VI. — Manitoba School Laws . - . . ClIAPTKK VII. — The IJarrett and Logan Cases Chaptkr VIII.— Appeal to the Governor-C.ciuwal-iii Council Chapter IX. — Latest Judgment of the Privy Council Chapter X. — The Remedial Order - . . . Chapter XL — Explanatory and Controversial Appendix— Extracts from the Privy Council Judgnmnt f'AGK. 13 17 20 29 34 38 45 52 57 65 s THE MANITOBA SCHOOL QUESTION CIIAI'TEU I. FkOM the CaPITULATIOv to CoNFKDKRATlON. The articles of Capitulation of Quebec (17-")9) and IMonlreal (ITOO) stipulate : — " That the free exercise of the Catholic, Apostolic and lloinan Heligioiis shall hv " preserved." This stipulation was formally and solemnly ratified and niad«! a perpetual covenant between the nations of Great Jlritain and France liy the Treaty of Paris (1763), con- taining the cession of Canada from Franc*' to (Jreat Britain, in the following,' terms : — " His Britannic Majesty on his side agrees to grant the liberty of the Catholic "religion to the inhabitants of Canada; he will, consecjuently, give the most precise '•and most eti'ectual orders, that his new Roman Catholic subjects may profess the " worship of their religion, according to the rites of the Romish Church, as far as tlie " laws of Great Britain permit." To the extent then of the right oi the free exercise of their religion the Roman Catholics of Old Canada — the Canada embraced within the provisions of the Treaty of Paris — have the guarantee of a treaty between nations, and to that extent they are not subject to competent interference even from the Imperial Government. It will be noticed, however, that this right is limited in the sense that it only holds good "as far as the laws of Great Britain (up to that time enacted) permit." The Quebec Act (1771), the first imperial statute as to the government of the colony defined the extent to which " the laws of Great Britain " permitted " the liberty of the Catholic religion" in the following terms (14 George III. Cap. 8.3, 8ec. 5) — " * * * Subject may have, hold and enjoy the free exercise of the religi(»n of the "Church of Rome subject to the King's supreinacy. * k- * And that the clergy <>f the "said Church may hold, receive and enjoy their accustomed dues and rights, with respect " to such persons only as shall profess the said religion." One of the " rights " referred to was certainly the superintendence and control of the education of the children of Roman Catholic pai-entage. That has always been held in all countries and under all circumstances to be one of the especial prerogatives of the clergy of that denomination. In the words of an eminent ecclesiastic of that belief : " education should not and cannot be .separated from instruction in the \ erities of the Christian faith." That it was so understood is apparent from a clause in the Act (1791) granting constitutional government to Lower Canada (31 George III. Cap. 31, Sec. 42), in which it is provided that " Whenever any Bill shall be passed containing any provisions which shall in any "manner relate to, or affect the enjoyment or exercise oi any form, or mode of religious " worship ; or shall impose or create any penalties, burdens, disabilities or (lis(|ualifica- " tions in respect of the same ; or shall in any maimer relate to, or aHect the payment, " recovery or enjoyment of any of the accustomed dues or rights, etc.'' THE MANITOHA SOIKKtL QUESTION. Then the Royal as.s«Mit was not to be given until thirty days after the Hill sliould have been laid before the Imperial Parliament ; and this delay was to enable the Imperial authorities to decide whether any of the provisions of the Treaty of Paris or The Quebec Act of 1774 had been contravened. Theie cannot, to our mind, be any question that the "payment" specified had reference* to educational dues as well as tithes. This clause was incorpaty of Paris, and were not subject to amendment, the following provisions : "(I) Nothing in any such law shall prejujiicially aU'ed any right or privilege with " respect to denominational schools which any class of persons have by law in the Pn» " vince at t.he Union. \ »ng, raatt at t since retai THE BRITISH NORTH AMERICA ACT 9 " (2) All the powers, privileges and duties at the Union by law conferred and * imposed in Upper Canada on the Separate Schools and school trustees of the Queen's " Roman Catholic subjects shall be, and the same are hereby extended to the dissentient " schools of the Queen's Protestant and Roman Catholic subjects in Quebec. " (3) Where in any Province a system of Separate or dissentient schools exists by law " at the Union, or is thereafter established by the Legislature of the Province, an appeal " shall lie to the Governor-General-in-Council from any act or decision of any Provincial " authority affecting any right or privilege of the Protestant or Roman Catholic " minority of the Queen's subjects in relation to education. " (4) In case any such Provincial law as from time to time seems to the Governor- " General-in-Council requisite for the due execution of the provisions of this section is not " made, or in case any decision of the Governor-General-in-Council on any appeal under " this section is not duly executed by the proper Provincial authority in that l)ehalf, *' then and in every such case, and as far only as the circumstances of each case require, " the Parliament of Canada may make remedial laws for the due execution of the pro- " visions of this section and of any decision of the Governor-General-in-Council under " this section." It will perhaps, make towards a clear understanding of the matter under consid- eration to examine with some particularity into the meaning and effect of these clauses, and thereafter into the reasons that led to their adoption and incorporation into the Canadian Constitution. The main clause (93) relegates, subject to the provisions of the sub-sections follow- ing, all matters pertaining to education to the Provincial Legislatures. It may be stated that the Legislature of each Province is a sovereign power within itself in all matters that are by the Constitution assigned as within the jurisdiction of the Province. So that had the reference tt> education ended with the main clause, every Province would have luid absolute power over its sch(M)ls, excepting that tl;e French Catholics of Quebec would have had, under the Treaty of Paris, no matter what the national character of the population might have become, the right to Roman Catholic schools and the superin- tendency by the clergy of the Roman Catholic Church over the education given in those schools. But the first sub-soction limits most materially the powers of the Legislatures. No denominational school having existence at the time of the union can be disturbed. It will be well to note the term " denonunational school," as that subject will come up again in connection with the Manitoba school case. The meaning of the term "de- nominational " as applied to schools was well understood by the Iniperial Parliament at the time of the passing of the British North America Act. For thirty-six years prior to 18(57 a system of national, as distinguished from denominational schools, had existed in Ireland, while on the other hand the system of primary education in Kngland was chiefly denominational, being carried on mainly through the instrumentality of schools in connection with the various denominations. The power, for instance!, of the Legislature of Ontario to deal with (nlucational matters stops short at the system of Roman Catholic Separate Schools as they existed at the time of the union, Amendments as to the regulation of these schools, passed sinc(! 1S(17 may be altered or repealed, the system itself must remain so long as Canada retains its present Constitution. The second sub-.section diMils entirely with (Ontario and Queltec, <'onfirniing gener- ally spiMiking the system in Ontiirio, and extending all its jioweis, rights and privileges to the Protestant minority of Quebec. lor THE MANITOBA SCHOOL QUESTION. Th« third sub-section is particularly to be noticed because therein lies the root of the whole issue now in contention respecting Manitoba. It provides that after the union if a Province establish through its legislature a system of separate or dissentient schools these schools shall then kacome a Right — a permanency — as though they had existed before the union ; and provision is made for an appeal to the Governor-General- in-Council should a later Provincial authority invade the Right thus created, and in fact against any invasions of Separate and dissentient school rights however created. The fact seems to be too often lest sight of that if the rights of the Protestant minority in Quebec were impaired by the legislature of that Province, the redress of the minority would have to be sought through an appeal to the Governor-General-in-Council and a remedial order. It may be contended that in calling the status of the Separate Schools " thereafter established by the Legislature " a " right, " the intention of the framers of the Constitu- tion is exceeded, that the claim to consideration thus created is but a privilege, as to which the Governor-General-in-Council may use discretion. This contention is a neces- sary carollary to the argument founded upon the claim that the Governor-General- in-Council in hearing a case such as the one under discussion is sitting, not as a judicial, but as a political body. We will touch upon that argument later. Meanwhile we will shortly offer evidence that an absolute Right is created in the manner indicated, though perhaps the degree of difference between a right and a privilege under the circumstances is of little moment, A privilege begotten of the law and exercised under the law surely secures all the powers and possesses all the character- istics of a right in an appeal to a body expressly designated to see that neither right nor privilege is affected. Protestant dissentient Schools, as a matter of fact, were not estab- lished as a system in Quebec until after the union, yet were an attempt now made to abolish them we would contend for their existence whether as a matter of right or privi- lege just as emphatically as we support the decision in the New Brunswick school ca.se on the ground that in that Province neither a right nor a privilege had been established. Sub-section four prescribes the remedy to be applied in case of an appeal to the Gov- ernor-General-in-Council being successful. It will be noticed that after the first sub- section there is no further reference to " denominational " schools ; thereafter only Protestant and Roman Catholic Separate or dissentient Schools are considered or defined as being within the provisions of the law. Having now dealt perhaps to a suthcient length with the meaning of Sec. 93 of the B.N. A. Act, let us turn our attention to the reasons that led to such measures being engrafted upon our Constitution. This is an important matter, in that it has a very considerable bearing not only upon the subject under consideration, but upon the semi-religious agitation that as a result is developing in Ontario and Quebec, and to a lesser extent in some of the other Provinces. The confederation of the four original Provinces of the l>f»minion, the two Canadas, Now Brunswick, Nova Scotia, was a mat- ter of treaty between f(tur distinct powers. The Imperial authorities stood ready to give sanction to any agreement that should be arrived at, but the agreement was of neces- sity a matter of arrangement between t'"} four parties. It is not necessary hei-e to re- capitulate the long years of negotiation, the priiposals offered and accepted, those offered \ THE BRITISH NORTH AMERICA ACT. 11 and rejected, the arrangements and re-arrangements, the bickerings in our own Legis- lature and the fears of the Maritime Provinces — they form the history of that time. Like every treaty, except where a conqueror dictates terms to an utterly helpless foe, the terms finally decided upon were in the nature of a compromise. To reconcile interests, factions, prejudices, it was necessary, as it always is and always will be necessary in ar- rangements of a like nature, for each to give way to the other. The leading, men of all parties united to effect this compromise, and that they succeeded as well as they did is a splendid tribute not alone to their patience but to their liberality. We cannot discover however that there was much diversity of opinion as to school matters. The proposi- tion to bestow jurisdiction upon the Provincial Legislature to deal with all matters affecting education, subject only to the proviso relative to denominational schools con tained in sub-Section 1 of Sec. 93, B.N. A. Act, seems to have met with general ap proval save from one source. Hjid objection not been raised from this source, it is indisputable that Sec. 93 would have had but the first sub-section ; that the Legislatures would have had full powers over all matters of education with the single exception of denominational schools in existence at the time of union. So far as Ontario is concerned this would have mattered nothing, the additional sub-sections have had no effect upon this Province ; to Quebec it mattered somewhat; to Manitoba it now means a great deal. The objection came from the Protestants of Quebec and was formally made through their representatives in Parliament. They had their dissentient schools, it is true, and t(j that extent their rights would have Vjcen guarded by sub-.section I, but there were manv things with which they were not satisfied, many concessions which they had asked and had not received, and they were exceedingly afraid that they would be left too much under the control of the Roman Catholic majority. It must be remembered that the position of the Protestants of Quebec was quite different from the Roman Catholic minority of Ontario. In this Province the Public Schools were at that time non- sectarian, though they are not so now ; in Quebec the system was purely Roman Cath- olic. The Protestant minority, therefore, made two demands as a condition of union : first a guarantee of their educational rights as they then existed, so that the Legislature of Quebec should have no power of interference, and second, that the existing law should be amended before the union, so as to remove certain objections. In a word, the Quebec minority were determined to secure all necessary privileges as a matter of constitutional fight, and they went about it in a highly skilful and proper manner. They simply made their demands an ultimatum, nor did the B'rench Catholic representatives offer any serious objection. The matter was promptly brought before the notice of Parliament in 1865, when the articles of Confederation were under discussioti. Mr. L. H. Holton, then a leading Protestant representative from Lower Canada, interpellated the Govern- ment again and again, and was supported ably by Sir John Rose, Hon. Mr. Sanborn and others. Hon. Mr. Dorion, then chief of the Rouges, Hon. Mr. Laframboise, Hon. D'Arcy McGee, among others intimated acquiesence. Hon. George lirown, the groat champion of national schools, in asking full justice for the complainants, referred to the satisfaction the existing system in Upper Canada was giving, and complimented all par- ties on the frank and conciliatory manner in which the claim had been met. Sir E. P. Tache, the then Premier, promised an act giving full redress of any reasonable grie\- ance, Sir J(»hn Macdonald gave a strong support, and Sir George Cartier had no hesita- tion in saying " it is the intention of the Government that in that law there will be a provision that will secure the Protestant minority in Lower Canada such management 12 THE MANITOBA SCHOOL QUESTION. and control over their schools as will satisfy them." In fact, throughout the whole discussion there was hardly a question raised against the protection sought for by the Lower Canadian minority, and the distinct promise was given that before Confederation became an accomplished fact a law should be passed that would meet the views of all. Before this bill was drafted, however, a calamity befell the Government, in the defeat of the union scheme in New Brunswick, and Parliament had suddenly to prorogue with- out passing the amended law. Sir George Cartier, Sir A. T. Gait and other leaders, however, promised the Protestant members from Lower Canada that the bill would be passed at the next session. Parliament met in 1866, the bill was introduced, a motion in amendment was made that all similar privileges — one being a separate educational Board or Council for the minority — should be granted the Roman Catholics of Upper Canada. The Protestant members of the upper Province objected on the ground that the circumstances were widely dissimilar, and the Government seeing that they would be defeated had to withdraw the bill. The promise to the Protestants of Lower Canada was not carried out. The position, as can be imagined, was most awkward. The Protestants of Lower Canada absolutely refused to come into the Union, and without them the Union could not be carried. It was left to that great leader of the French Catholics, Sir George Cartier, to solve the difficulty. He gave to the Protestants his pledge that when Con- federation was a fact, and when Quebec had a Legislature of her own, one of the first acts of that Legislature would be to pass the law that had not passed Parliament. Cartier was known as a man who had never broken his word, the pledge was accepted, and it may be remarked, in passing, was amply fulfilled. Sir George himself sought and received election to the first Quebec Legislature, and his promise was carried out in good faith. But before this the Act of Confederation had to be dealt with. The educational clauses adopted in 1865 (Sec. 93 and Sub-Sec. 1), only safeguarded the rights the minor- ity had at the time of Union, To carry out the promise made to the Protestant minority of Lower Canada, clause two was added, giving them at least all the rights that the Catholic minority of Upper Canada would have ; and secondly, to make binding the law that the Quebec Legislature was to pass, clauses three and four, creating a right by legislation passed after the union, with an appeal for redress to the Governor-General - in-Council, and the remedial order arrangements were devised and incorporated, The right to the free exercise and liberties of their religion, including their schools, •stipulated for the Roman Catholics of Quebec in the capitulations of Quebec and Mon- treal, guaranteed by the Treaty of Paris, defined by the Quebec Act of 1774, reaffirmed in the Constitutional Act of 1791, and the Union Act of 1840, was engrafted in tl-.e Constitution of Canada granted in 1867 ; and in addition thereto, at the retjuest of, and to protect the rights of the Protestants of that Province, further clauses made bindinar upon the whole Dominion were consented to and were made a matter of treaty between the Provinces, and a part of the Constitution. Right or wrong, good policy or bad, there they are and there they will ptay so long as the Constitution lasts. This must be said : if Separate Schools were forced upon Uppei- Canada by tli(> P'rem-li Catholic members in 1863, as undoubtedly they were, the created right of .Separate Selmols established after the union was forced upon tiie French Catholics hv the Protestants, and in defence of Protestant interests, in 1800, and it is this latter that forms the groundwork for dispute with Manitoba at the present time. <> tic thJ th ful CHAPTER III. New Brunswick School Case. The first appeal, under the law, as described in the preceding chapter, came from the Province of New Brunswick. That Province, along with Nova Scotia, presented, at the time of the union, no especial features with regard to educational matters, and was consequently dealt with under the clauses, of Sec. 93 of the B.N.A. Act without being in any way particularized. The previous Provincial legislation on educational matters can be dealt with in very small compass. In 1858 an Act was passed entituled " An Act Respecting Parish Schools." This was the school law of the Colony of New Brunswick, the term " Parish " being used because the local sub-divisions of territory were so named. This corresponded to our phrase of " municipality," and had no other signification whatever. The Act of 1858 provided a Board of Education consisting of the governor and council, a superinten- dent to be appointed who was to act as secretary, etc., and this Board had practically control of the schools. Among their duties was (Sec. 4, sub-sec. 7) "to provide for the establishment, regulation and government of school libraries and the selection of books to be used therein ; but no works of a licentious, vicious or immoral tendency, or hostile to the Christian religion, or works on controversial Theology, shall be admitted." A provision of importance in the after dispute was that of Sec. 8, sub-sec. 5, which reed : — " Every teacher shall take diligent care, and exert his best endeavours to impress on the minds of the children committed to his care the principles of Christianity, morality and justice * * * but no pupil shall be required to read or study in or from any religious book, oi- join in any act of devotion objected to by his parents or guard- ians ; and the Board of Education shall, by regulation, secure to all children whose parents or guardians do not object to it, the reading of the Bil)le in Parish schools ; and the Bible when read in Parish Schools by lioman Catholics children shall, if required by their parents or guardians, be the Douay version, without note or comment." The teachers and districts were to receive a certain pro-rata sum from the Provin- cial Treasury. Amendments to this act were passed in 1863 and in 1867, but both had relation to the working out of the school system and did not in any way affect its prin- ciple. So that at the time of Confederation New Brunswick was under the operation of the "Act respecting Parish Schools "of 1858. In 1871 the Legislature of New Brunswick passed a measure known as "The Connnon Schools Act." This Act differed from the Parish Schools Act in some par- ticulars, but the only matters of digression that have bearing upon the present issue, are those in which almost arbitrary powers of assessment were conferred upon the trustees of the school districts, the provision giving the inspector power to appoint trustees with full powers, in case the ratepayers did not or would not act, and that all schools were to 13 14 THE MANITOBA SCHOOL QUESTION. be non-sectarian. The matter of the reading of the Scriptures is not mentioned in the Act of 1871. As a matter of fact, except as regards compulsory taxation there was no very great difference in principle between the Parish School Act and the Common School Act. The working clauses were precisely the same, the details as to the carrying out of the work thus provided for were the same. The duties and powers of the officers did not sub- stantially differ. Except as to Section 8, heretofore quoted and the non-sectarian clause, there was in reality very little difference in principle between the two measures. Against this Act of 1871 the Poman Catholic Hierarchy, clergy and laity of the province appealed by petition to the Governor-General praying for disallowance of the same, on the grounds that it would destroy or greatly diminish " the educational privi- lege which the Roman Catholics enjoyed at the passing of the B.N. A. Act and sub- sequently ; " that under the previous law " Catholics were enabled wherever their numbers were sufficiently large to establish schools in which a good religious and secular education was afforded ; " that in the larger centres the petitioners had gone to great expense to erect schools of their own ; that in the other districts they were not " compelled to the support of any schools in which they had reason to apprehend that anything] would be done to sap the faith or weaken the religious convictions of their children;" that the Act was not called for or demanded, that all powers were abso- lutely vested in the majority, that they were thereby compelled to contribute to the sup- port of a school system of which they conscientiously disapproved ; and that this was a palpable violation of the spirit of the British North America Act. There was a fur- ther contention entered that the petitioners had a prescriptive right in the money grants already made. Sir John Macdonald was then minister of justice and his report on the bill and the petition was short and to the point. He said : — " The Act complained of is an act relating to Comi \i Schools, and the Acts repealed " by it apply to parish, grammar or normal schooi^. No reference is made in " them to separate, dissentient or denominational schools, and the undersigned does not *' on examination find that any statute of the Province exists establishing such special '* schools. " " It may be that the Act in question may operate unfa^■orably on the Catholics, or "on other religious denominations, and if so, it is for such religious bodies to appeal to " the Provincial Legislature, which has the sole power to grant redress. " "As, therefore, the Act applies to the whole school system of New Brunswick, and " is not specially applicable to denominational schools, the Governor-General has, in the "opinion of the undersigned, no right to intervene. " As to the money grants Sir John held that no contract existed. Let us digress here for a moment. Certain persons, who should know better, assume to find an analogy between the New Brunswick and Manitoba cases in Sir John Macdonald's report and a clear direction as to what should be done in the latter case in the words " if so, it is for such religious bodies to appeal to the Provincial Legislature, which has the sole power to grant redress. " The dishonesty of taking this sentence without its context is so appar- ent that one is amazed that it should be ventured upon. If the preceding clause in Sir John's repori or anything bearing the same interpretation can be found in any official report or judgment of the Manitoba case, then an analogy would exist. The question remained as above until the meeting of tlje Parliament of Canada in 1872. On May 20th Mr. Costigan moved a resolution along the lines of the Roman M4B NEW BRUNSWICK SCHOOL CASE. 15 and the Catholic petition before referred to, and prayin» that His Excellency disallow the Provin- cial bill at the earliest possible period. The debate lasted many days, several amend" ments being proposed ; the motion finally adopted being an amalgamation of two amend- ments, one by Mr. Colby and the other by Hon. Alexander Mackenzie : — " That this House regrets that the School Act recently passed in New Brunswick is '* unsatisfactory to a portion of the inhabitants of that Province, and hopes that it may be " so modified during the next session of the Legislature of New Brunswick as to remove *' any just grounds of discontent that nc .' exist, and this House deems it expedient that " the opinion of the Law Officers of the Crown in England, and if possible the opinion of "the Judicial Committee of the Privy Council, should be obtained as to the right of the " New Brunswick Legislature to make such changes in the school law, as deprived the *' Roman Catholics of the privileges they enjoyed at the time of the union in respect of *' religious education in the Common Schools, with the view of ascertaining whether the " case comes within the terms of the 4th sub-section of the 93rd clause of the British " North America Act, 1867, which authorizes the Parliament of Canada to enact remedial *' laws for the due execution of the provisions respecting education in the said Act. " That portion of the motion after the words " and this House deems it expedient " was Hon. Mr. Mackenzie's amendment. In order that effect might be given to this resolution a sum of $5,000 to defray expenses was voted. The Executive Council of New Brunswick replied to the resolution of the Federal Parliament in spirited, one might almost say, indignant terms. They denied absolutely the assumption that the Roman Catholics of the Province had been deprived of any privileges they enjoyed at the time of the union. " No privileges," says the memorandum of the Executive, "are taken away by the Common Schools Act, 1871, except such as were secured by the statutes thereby repealed ; and the Executive Council regret that the House of Commons should have assumed a state of facts which should dispense with the necessity of examining the legislation of the Province upon the subject." Proceed- ing, the memorandum points out that in order to render the law inoperative under the first sub-section of Sec. 93, B.N. A. Act, there must have been at the time of the Union denominational schools in existence under the law, and that no such schools existed. As Separate Schools had not been established subsequent to the Union, none of the clauses of Sec. 93 were applicable. The Parish Schools were clearly schools of the rate- payer and not of the denomination; they existed, not in connection with the denomina- tion, but in connection with the State, and vested no rights or privileges in any class of persons. Clause 5 included the teaching of the principles of Christianity, but not of denominational Christianity, and where, as in the lilirary clause, all works on contro- versial theology were classed with obscene, vile and infidel works, it could not for a moment be contended that denominational teaching of any kind was contemplated. Even the concession of using the Douay version of the Bible had to be exercised " with- out note or comment." Surely if distinctive doctrinal teaching was to be allowed, and it it is impossible to conceive of a denominational school without distinctive doctrinal teaching, then the reading of the Douay version with note and comment must have been allowed. Moreover, the Douay version does not profe.is to be a sectarian book, but the Word of (xod. This was the ground taken by the executive and they wound up by pressing an appeal to the Privy Council to settle the matter once for all. In due course all the documents went to the Law Officers of the Crown for an opinion. Their decision was given on Nov. 29th, 1872. " We agree substantially with the opinion expressed by the Minister of Justice of 16 THE MANITOBA SCHOOL QUESTION. the Dominion. So far as appears before us, whatever may have been the practical working of annual educational grants in the Province of New Brunswick, the Roman Catholics of that Province had no such rights, privileges or schools as are the subjects of enactment in the British North America Ace, 1867, Section 93, Sub-Section, etseqa. " It is, of course, quite possible that the new Statute of the Province may work in practice unfavorably to this or that denomination therein, and therefore to the Roman Catholics, but we do not think that such a state of things is enough to bring into opera- tion the restraining powers or the powers of appeal to the Governor-General-in-Council, and the powers of remedial legislation in the Parliament of the Dominion contained in the 93rd section. We agree, therefore, in the practical conclusion arrived at by Sir John A. Macdonald." Reference was then made to the Judicial Committee of the Privy Coun- cil. The Lord President of the Council decided that as the power of disallowance of Provincial enactmenc.s rested with the Dominion Government there was nothing in the case that gave Her Majesty-in-Council any jurisdiction. There being no possibility of further appeal along this line the " Common Schools Act, 1871," of New Brunswick, was duly allowed and went into operation. Still the dispute was not at an end. The question of disallowance only had been settled. The constitutionality of the Act was next attacked, all parties being agreed as to the reference, and the Dominion Government having voted a sum to pay the costs. This reference was the celebrated Renaud case. Auguste Renaud appealed against his assessment under the Common Schools Act, on the ground that the Legislature had no power or authority to enact the law under which such assessment was levied, inasmuch as it contravened the British North America Act, and was consequently void and of no effect. The action was taken under sub-section I. of Section 93, B.N.A. Act, the contention being that denominational schools existed at the time of the Union. The Court of first instance confirmed the a-isessment and the case then went to the Supreme Court of New Brunswick. This court unanimously sustained the constitution- ality of the Act, on the ground that denominational schools did not exist by law at the time of the Union, that the " Parish Schools Act " was a general educational act for the Province under which the Roman Catholics had no exclusive rights, the reading of the Douay version of the Bible being merely a matter of regulation, and that therefore they had no case under sub-section I. of Sec. 93 of the B.N.A. Act. The Judicial Committee of the Privy Council upon appeal took the same view. We have not the judgment of the highest court before us, as at that time their lordships' decisions were not printed, but there is no doubt that their lordships' conclusions were reached upon the same grounds as influenced the judgments of the lower courts. This decision ended the dispute. To sum up briefly. New Brunswick never had denominational or Separate Schools as such under the law, either before or subsequent to confederation, consequently legisla- tion on educational matters of the Provincial Parliament could not and did not come under the iufluence of the sub-sections of Section 93 of the Act of Confederation. Im- portance is given this case as being the first to arise after the union. " dis " isla "all " tioi "as CHAPTER IV. Prince Edward Island School Case. Prince Edward Island was not one of the original parties to the Confederation, having been admitted as a Province in 1873. The Act of Union makes no specification as to education beyond what is contained in the B.N. A. Act. This Province was, how- ever, the second to raise an appeal upon matters of education and to claim the right of Separate Schools. A portion of the population are French Acadians. Prior to becoming a part of the Dominion, and therefore subject to the pi-ovisions of Sec. 93, B.N. A. Act, the school law in force was under the authority of an Act passed in 1868. This Act repealed a measut. passed in 1861 which provided a board of educa- tion to regulate the admission of teachers and the practice and system of education to be observed. It was required that every teacher should pass an examination by the hoard of education and receive a certificate of qualification. An exception however was made (Sec. 31) allowing an Acadian (French) teacher, who had not been examined, to teach at a reduced salary if he produced a certificate signed by the clergyman or priest of the district or parish wherein he taught, to tne effect that he was capable of teaching and that he had taught the number of scholars required, and had instructed one English class for three months previous to the granting of such certificate. A subsequent section (Sec. 37) however declared that all schools claiming allowance to teachers under the Act wherein the books, regulations and system of education prescribed, or to be prescribed by the school visitors and Board of Education to be observed, were not observed or adopted, should if the board thought fit and make an order to that eftect, be refused or deprived of such allowance until such books, regulations and system of education should be observed and adopted. The preamble to this act declared the schools to be free schools. It is therefore clear that up to the repeal of the Act of 1861 there had not been Separate Schools in the island. By the Act of 1868 a new system of education was introduced and all anterior statutes were repealed. A board of education was established, but no person was allowed to teach without a license from the board, granted after examination. Visitors were appointed for defined districts and each district elected a board of trustees. These trustees had power to assess householders, being parents or guardians of children, for certain current expenses and the building and repairing of schcKjl houses, hut provision was made that a teacher who could teach French should receive £5 additional salary provided the trustees of such school district raised thfit sum by supplementary subscrip- tion. There are numerous other clauses which with two exceptions need not here encum- ber the record. The exceptions are : — " Sec. 103: — The two schools, which were established, and are now in operation in the " district known as Anglo-Rustico district, or township number twenty-four in this " island (one school having been found insufiicient to aflbrd the means of education to " all the children therein), shall be continued as now in operation, and the board of educa- " tion are hereby authorized to divide and alter the said district in such way and manner " as they may deem expedient, so as to meet the exigencies of the case, anything herein 17 18 THU MANITOBA SCHOOL QUESTION. " contained to the contrary notwithstanding ; provided always, that no teacher appointed " to take charge of any such school or scholars in the said Anglo-llustico district, shall " at any time be recognized as a district teacher or be entitled to a salary, unless such " person shall have obtained a license as a first or second class teacher from the board of " education, and shall comply with the provisions of this act relating to district teachers. " "Sec. 104: Incase any other established school district in this Island shall be found similarly circumstanced with the said district hereinbefore designated the Anglo- Rustico district, it shall be in the power of ' lie Board of Education to apply the same remedy in relation thereto, by dividing and altering the same and establishing an additional school therein, as is mentioned and set forth in the last preceding section, in regard to the said Anglo-Rustico district, and with the like restrictions in all respects as therein prescribed in regard to the teacher of any such additional school, being a duly licensed teacher, and the trustees of his school shall conform in all respects to the provisions of this Act." This Act was again repealed by the Act of 1877, Prince Edward Island at this latter date being a province of the Dominion of Canada. This new measure changed some- what the personel of the Board of Education, and made many other changes which we need not here notice. Certain pertinent clauses we will transcribe : — "Sec. 15: No teacher shall receive from the Provincial Treasury the salary herein " provided, according to his respective class or grade, unless the average daily attendance " for the terra during which he claims his salary shall be at least fifty per cent, of the " children of school age within the school district, and made so to appear to the chief " superintendent's satisfaction ; and if such average daily attendance shall be less than " fifty per cent., a proportionate deduction shall be made from his salary for any " deficiency. "Sec, 16: In case such deduction shall at any time be made from any teacher's salary for the reason set forth in the preceding section, the chief superintendent shall cause the fact and the amount of the deduction to be certified to the trustees of the district, who shall forhwith npon the receipt thereof levy an assessment upon the parties in the distiict who have by neglecting or refusing to send their children to school, caused the deficiency in average attendance, and such assessment shall be distributed and paid in such proportions and amounts by such persons as the trustees in their absolute descre- tion may determine ; but should it be proved to the satisfaction of the trustees that such deficiency was caused by sickness or other unavoidable causes, the trustees shall in that case be, and they are hereby authorized to levy an assessment on the district to meet such deduction in such manner as for other school purposes." All the old school districts were continued, the trustees were given large powers, but were to keep certain conditions with regard to the employment of teachers, and then this :— " Sec. 92 : All schools conducted under the provisions of this Act shall be non-sec- " tarian, and the Bible may be read in all such schools, and is hereby authorized, and " the teachers are hereby required to open school on each school day with the reading of " the sacred Scriptures by those children whose parents or guardians desire it, without " comment, explanation or remark thereupon by the teachers ; but no children shall be " required to attend during such reading, as aforesaid, unless desired by their parents or •' guardians." Against this Act Bishop Mclntyre of Charlottetown appealed, first to Lieutenant- Governor Sir Robert Hodgson, to withold the bill, and this being denied, to the Gov- ernor-General-in-Council, under sub-section 3 of section 93 of the B.N.A. Act. His were recon PRINCE EDWARD ISLAND SCHOOL CASE. 19 Lordship's contention, backed by a memorial with 18,000 signatures, was in short, that the Anglo- Rustico schools, now increased to thirty-one in number, were in fact. Separate Schools, built by the Roman Catholics at their own expense, " where secular teaching became education by being based upon religious instruction " ; that the effect of the law would be to compel them to not only support their own schools wholly, but to pay taxes for the genera' schools ; that the effect of clauses 15 and 16 would be to create into a crime, punishable by fine and imprisonment, the desire of Christian parents to give their children Christian instruction ; that the Anglo-Rustico schools were, and always had been separate, dissentient and denominational in character ; that in these schools the books were and had been similar to those used in the Roman Catholic schools in the Province of Quebec ; that it was and had been prior to Confederation the legally recog- nized right for the Roman Catholic priest in whose parish they were situated to attend each as frequently as he deemed necessary to hear the children in Catechism and to in- struct them in the verities of the Roman Catholic faith ; and that the phrase in the Act of 1868, "shall be continued as now in operation," legalized them as Separate Schools. The Executive Council of Prince Edward Island met and gave prompt reply to the petitions, memorandums and memorials of Bishop Mclntyre and those who were sup- porting him in his claim for Separate Schools. His Lordship's first communication to Sir Robert Hodgson, bears date April 17th, 1877, his last memorial addressed to Lord Dufferin, 20th June, 1877, and the Executive made its deliverance on the 30th of the same month. The Council emphatically denied the statements in the memorials in so far as they asserted the existence of any separate denominational schools, re- cognized by law or supported at the public expense. They admitted that in the French schools as well as in the Scotch and Irish schools, books had been used that were not authorized by the Educational Board ; but affirmed, what was quite true, that no legal authority existed for their use, and pointed out that an evasion of the law, even if successfully carried out for years, could not change the law or the rights of any parties under it. Regarding Sections 15 and 16, they showed that the same principle of deducting a ratio of salary where the daily attendance was not up to the standard, was to be found in the School Acts of 1854, 1860, 1861, 1863 and 1868, and that the only change lay in the simple fact that the deduction from the teacher's salary, made because of the deficiency in the average attendance, was to be l«vied upon those who wilfully caused the deficiency. They drew attention to the fact that subsection M. of Sec. 93 was expressly inserted to meet those cases where any de- nomination of Christians, Roman Catholic or Protestant, had erected a school of their own and to enable such school to participate in the public expenditure, provided it con- formed in all respects to the public schools' rules and regulations during school hours ; a procedure that had been found to work with excellent results in New Brunswick. As to the Anglo-Rustico schools being legally recognized se parate schools prior to Confed- eration, they absolutely destroyed this contention by producing a petition presented to the Legislature in 1875, signed by Bishop Mclntyre and some 9,000 Roman Catholics, of which number nearly 2,000 were French Acadians, praying a concession of the very privileges as to Separate Schools, which in 1877, it was claimed, had legally existed for years prior to 1868. The further statements of the Executive dealing with the forma- tion of the Anglo-Rustico district we need not repeat here, the Acts which we have quoted interpret themselves. Reference may, however, be made to the fact not heretofore recorded in these columns, that by an amendment to the Act of 1861, passed in 1863, 80 THE MANITOBA SCHOOL QUESTION. the Acadian teachers as a separate class were abolished, and the powers of the priests to grant certificates and visit the schools for the purpose of giving religious instruction were revoked. It was overlooking this amendment of 1 863 that led His Lordship into the error of supposing that the privileges existing in 1861 continued "in operation" until Confederation. This minute of the Executive was transmitted to Ottawa, was referred to Bishop Mclntyre, who made reply in two memorandums, and on the 8th November of the same year the Minister of Justice, Hon, R. Lattamme, made his report. This document is somewhat voluminous, but the substance can be condensed into very close compass. The Minister says : " l^pon a close examination it is impossible to arrive at the conclusion that the.se schools were denominational by law, whatever may have been the course of instruction carried on in them. I find no provision of the law which could be interpreted as warranting the exemption of these schools from the enactment applying to the schools generally." He further found it "impossible" to discover in clauses 103 and 10-t any- thing that would "justify the claim of the Bishop to secure the right to denominational teaching in such schools." Upon this report the Governor-General-in-Council refused an appeal and allowed the bill. No comment is needed up(jn the recital of facts as above set forth. In a word, Prince Edward Island, it is clearly shown, did not have denominational schools estab- lished by law at the time of her union with Canada, did not thereafter establish Separate Schools by legislation of the Province, consequently no appeal could lie to the Governor- (xeneral-in-Council, as no rights had been acquired that could be affected. CHAPTER V. Manitoba Down to the Union. Manitoba forms part of what was known as Rupert's Land, and Rupert's Land was the territory granted in the reign of Charles II. to the Hudson Bay Company, in which Prince Rupert was one of the principal grantees. There was a portion of Rupert's Land which had been purchased by Lord Selkirk, in the early part of the present century, which had been settled by him, and which was repurchased by the Hudson Bay Com- pany and formed the district of Assiniboia, a district on the Red River. This was the more settled part of Rupert's Land. The territory of Rupert's Land was part of the territory of the Crown ; it formed part of the British Empire, but it was governed and laws were exclusively made for it by the Hudson Bay Company. That Company appointed the Governor. There was no elective representative legislature. The Company appointed certain persons as a legislative council and that council made ordinances. All legisla- tion was necessarily subject to the legislation of the Imperial Parliament, but the only local legislative authority was such as has been described. Down to the union there was no legislation of any sort or kind with regard to education. There were Roman Catholics in the territory and there were Protestants of MANITOBA DOWN TO THE UNION. 21 various denominations, chiefly Presbyterians and Anglicans. The different churches and denominations maintained their own schools where they had sufficient strength to do so, but they were purely voluntary schools supported by contributions and fees, and under no legislative authority whatever. The only right or privilege that existed was that of each denomination maintaining their own private voluntary schools at their own expense. The Hudson Bay Company supplemented the funds of these sch(x>ls by occasional grants. For instance in 1851, "to weaken the mischevious and destructive energy of those violent and untamed qualities of human nature, which so freijuently manifest them- selves in society, in a half civilized state, and to strengthen the feelings? of honorable independence, to encourage habits of industry, sobriety and economy, " it was moved and unanimously carried "that 4J1C0 be granted from the public fund to be divided equally between the bi, op of Rupert's Land and the bishop of North- West, to be applied by them at their discretion for the purposes of education. " This was considerable of a preamble for a not very large grant, but no doubt the money was welcome. At any rate the Presbyterians of Frog Plain put in a petition for £\6 on the ground that they had not received anything from the Bishop of Rupert's Land. This was granted at the next meeting of Council, and then a plea for £15 more for the Bishop of St. Boniface to even things up was put in, and this was likewise granted. It cannot be contended however, that these grants from the funds of the Hudson Bay Company were other than voluntary contributions, and the resolutions granting them did not partake in any way of the binding character of legislative enactment upon either the giver or the receiver. This was the condition of affairs down to the union. To a complete understanding of the Manitoba School case we have now to consider with some particularity the various steps taken with reference to the union and the causes which led to the agreement which was arrived at and which was embodied in the Act of Union. And first, it must be on no occasion lost sight of, that until the 15th day of July, 1870. the Canadian Government had no more right to exercise jurisdiction beyond the western boundary of Ontario than had the Akoond of Swat. The territory was as independent of Canada as was Patagonia, and was at perfect liberty to come into the union or stay out of it. It could set up as an independent Crown colony, it could decide to remain a territory governed by an executive oflicer appointed by the Imperial Government, or it could throw in its lot with the Dominion. True, Canada had made a settlement with the Hudson Bay Company and had arrived at an understanding of the money payment necessary to extinguish the Company's rights, but these were trading rights, not rights to the title in the land. True also, Canada was in negotiation for the acquisition of these territories, but the negotiation had to be conducted with the people of the territory, as the Imperial Government had emphatically and peremptorily refused to allow the settlers to be coerced into union. The union was a treaty between the Government of Canada and the settlers on the Red River. It was so designated and was so in fact. The disturbed times of 1869-70 are matters of history. We need refer to them onlv as they have bearing upon the subject at issue. At that time the population on the Red River amounted to some 12,000 souls, composed of 2,000 whites, 5,000 English half-breeds and 5,000 French half-breeds. They were about equally divided as between the Protestant and Roman Catholic religions. The French were however the first to move in the matter of resisting any encroachment upon what they considered their rights, 22 THE MANITOBA SCHOOL QUESTION. but on November 6th, 1869, a notice was published asking the English to elect twelve representatives to meet twelve already elected French delegates in order to form a Council " to consider tlie present political state of the country, and to adopt such measures as may be deemed best for the future welfare of the same. " Elections were accordingly held, and twelve representatives, two from Winnipeg and one each from the other ten districts were chosen. Two of these twelve had been forme members of the Council of Assiniboia, while all were leading men. The twenty-four delegttes met on November 16th and sat for five days. The French members proposed the establishment of a Pro- visional Government " for the purpose of treating with Canada for the future govern- ment of the country. " The English representatives had not been instructed by their constituents upon this point and an adjournment was taken until December 1st. On that date the Council reassembled and agreed upon the first Bill of Rights. The bill and the action taken upon it were as follows;, as reported in the minutes of the Council : — LIST OP RIGHTS. " 1. That the people have the right to elect their own Legislature. " " 2. That the Legislature have power to pass all laws local to the territory over ' the veto of the Executive by a two-thirds vote. " "3. That u<^ Act of the Dominion Parliament (local to the Teri-itory) be binding ' on the people until sanctioned by the Legislature of the Territory. " " 4. That all sheriffs, magistrates, constables, school commissioners, etc., etc., be ' elected by the people. " " 5. A free homestead and pre-emption land law. " " 6. That a portion of the public lands be appropriated to the benefit of schools, ' the building of bridges, roads, and public buildings. " " 7. That it be guaranteed to connect Winnipeg by rail with the nearest line of ' railroad within a term of five years ; the land grant to be subject to the Local Legis- ' lature. " " 8. That for a term of four years, all military, civil, and municipal expenses be paid out of the Dominion funds. " •' 9. That the military be composed of the inhabitants now existing in the Terri- ' tory. " " 10. That the English and French languages be common in the Legislature and Courts ; and all public documents and Acts of Legislature be publinhed in both langu- ' ages. " " II. That the judge of the Supreme Court speak the English and French langu- ages. " " 12. That the treaties be concluded and ratified between the Dominion Govern- ment and the several tribes of Indians in the Territory, to ensure peace on the frontier." " 13. That we have a fair and full representation in the Canadian Parliament. " " 14. That all privileges, customs and usages existing at the time of transfer be ' respected. " "All the above articles have been severally discussed, and mlopted by the French and English representatives, inithout a (linHciitiny voice, as the conditions upon which the people of Rupert's \,[\.\\(\ enter into Confederation. The French representives then proposed, in order to secure the above rights, thai a delegation be appointed, and .sent to Pembina, to see Mr. McDougall, and ask him if ho could guarantee these rights by ' virtue of his commission, and if he conid do so, that then tfte French jieople would join, to a imin, to encorf Mr. Mr Dougall to his yovnrtimfmt seat. But on the contrary, if Mr. ' McDougall coiild not guarantee such rights, that the delegates re(|uest him to renniin where he is, or return till the rights be guanuitiied by Act ot Caniuliau Parliament. " MANITOBA DOWN TO THE UNION. as "The English representatives refused to appoint delegates to go to Pembina tocoa- " suit with Mr. McDougall, stating they had no authority to do so from their constituenta, '* upon which the Council dissolved. " '* The meeting at which the above resolutions were adopted, was held at Fort (larry, "on Wednesday, December 1st, 1869. " It will thus be seen that the representatives of both nationalities were agreed as to their demands but that the English refused to adopt a policy of resistance pending the discussion of these demands. In the eye of the law all this was irregular and illegal, but at that time there was no law in the territory, the union had not taken place, and the people were doing what they thought was best for themselves. Meanwhile Kiel's rebellion had prevented the entrance of Hon. William McDougall into the territory as Lieutenant-Governor, a place where as Lieutenant-Goverutir he had as much right as though he were laying claim to the possessions of the Grand Khan. The Canadian Government took the wise course of sending three commissioners to the Red River to allay the apprehensions of the settlers and explain their policy. The com- missioners were Very Rev. Grand Vicar Thibault, Col. de Salaberry and Mr. (now Sir) Donald A.Smith,the present member for Montreal Centre. The latter's fitness for the posi- tion none will question. The commissioners reached Fort Garry on the 26th and "JTtli De- cember. Sir Donald took the ground at once of refusing to recognize the 'egality of the " Provisional Government," as the Council was called, stating that his conuuission, as indeed it was, was to the people of Red River. Riel was very distrustful of Sir Donald, but the latter had not served half-a-century in the employ of the Hudson Bay Company without knowing the people he had to deal with. He remained quietly firm and had his way. A mass-meeting of the settlers was called for and held on January 19tli. The assemblage was so great that it had to be held in the open air, and though the thei-- mometer registered 20 degrees below zero the meeting lasted five hours. Sir Donald read and explained his commission, and it was decided to elect twenty English and twenty French representatives " with the object of considering the subject of Mr. Smith's com- mission, and to decide what would be best for the welfare of the country." The Bishop of Rupert's Land and Judge Black were two of the most active participants in the meeting. The forty representatives were elected accordingly, and met on January 26th, Judgf their ground — and accordingly, a refer- ence of the case was made to the Supreme Court. We must now turn from the main question for a moment to ascertain how and why it is that such reference could be made to the Supreme Court. The Manitoba Education Acts of 1890 were first brought to the attention of the Pailiauient of Canada by Hon. Edward Blake on the 29th April, 1890, when he moved in the House of Commons : " That it is expedient to provide means whereby, on solemn occasions, touching the " exercise of the power of disallowance or of the appellate power as to educational legis- " lation, important questions of law or fact may be referred by the Executive to a high " judicial tribunal for hearing and consideration, in such mode that the authorities and " parties interested may be represented and that a reasoned opinion may be obtained " for the information of the Executive." In the course of the debate on this resolution Mr. Blake stated that he considered it as settled, at all events for the bulk of the Liberal party and for himself, that as a question of policy there should be no disallowance of educational legislation, for the mere reason that in the opinion of the Dominion Parliament some other and different policy than that which the Province has thought fit to adopt would be a better policy, and referred to the action that had been taken in the Now Brunswick case, when dis- allowance of an Educational Act had been refused, and the action of the Government wM,s sustained in the House of C(Mnmon8 by a large majority. Mr. Blake further stated that his resolution was mainly due to the anticipated difiiculties in connection with the Manitoba Acts, and that ho would recommend a reference to a high judicial tribunal in all cases of educational appeal, as they were cases that necessarily evolved the strong- est feelings. Sir John Macdoiiald acquiesed in the view taken by Mr. Blake and accepted the amemlmei ', pointing out, however, that appropriate legislation could not be introduced APPEAL TO THE GOVERNOR-GENERAL. 41 at the time. He promised a measure for the following session, and, in the meantime, as there was no provision under which a satisfactory reference could be made, the Federal authorities defrayed the expenses of the Barrett case in order that at least the validity of the Acts might be tested. This action has been condemned in certain quarters, very wrongly, we think, as the Government were but following the precedent set in the New Brunswick school case, where a sum of $5,000 was voted to test the constitutionality of an Act respecting education. It is contended that in the New Brunswick case the money was first voted l)y Parliament, while in the later appeal the Government acted without consulting the House ; but this argument will not hold for a moment, because Parliament, by adopting Mr. Blake's resolution, had expressly ordered the Ministry to secure a judicial decision, and this was the only way, at that time, in which it could be secured. It is further charged that the Government were rushing, with unseemly haste, to the aid of the Roman Catholics of Manitoba in a matter in which only Manitobans were concerned ; ))ut this can hardly be accepted as the allegation of reasonable men, for on the Government rested the imperative duty of allowance or disallowance of these educational measures, a power of the gravest consecjuence, to be exercised only with the greatest discretion, after the most thorough investigation, and, on a subject in which men's passions are easily aroused, only after every question of law and of fact has been authoritatively settled. In accordance with the promise of Sir John Macdonald an amendment to the " Act IlegLilating Reference to tlie Supreme Court" was passed in the session of 1891. As the measure is a short, and a most important one, we append it in full : — " Section 37 of the said Act is hereby repealed and the following substituted therefor ; " 37. Impoi tant (juestions of law, or fact, touching provincial legislation, or the "appellate jurisdiction as to Educational matters vested in the Governor-in-Council by '• 'The British North America Act, 1867, ' or by any other Act or law, or touching the " constitutionality of any legislation of the Parliament of Canada, or touching any " other matter with reference to which he sees fit to exercise this power, may be i-eferred " by the Governor-in-Council to the Supreme Court for hearing or consideration ; and " the Court shall there\ipon hear and consider the same. " 2. The Court shall certify to the Governor-in-Council for his information, its 'opinion on (juestions so referreil, with the reasons therefor, which shall l)e given in like "manner as in the ease of a judgment upon an appeal to the said Court, and any jun 93 be iiplained manlier Solicitor- titioners, (to argue. ilf of the jmewhat I revoked, lie on the APPEAL TO THE GOVERNOR-GENERAL. 43 part of Mr. Justice Taschereau, who commences by questioning his own jurisdiction and thereafter proceeds to condemn pretty much everything in sight. Possibly it is not per- missable in theory to admit that our grave and august wearers of the ermine can be subject to liuman infirmities, but in the layman at least there is aroused a strong sus- picion that the dominant idea in the minds of the majority of the Court was " very well, your Imperial Lordships liaving rlecided that no minority rights existed under sub-sec- tion 1, when we had unanimously he'd to the contrary, we will take you at your word and go you one better by deciding that the minority never had and never could have any rights, and you can take the consequences. " Of course the layman, being unlearned in the law, is quite as liable to err as even a member of the Supreme Court of Canada. Chief Justice Sii Henry Strong decided that the difierence in expression between the British North America Act and The Manitoba Act, could refer to nothing but a deliberate intention to make some change in the operation of the respective clauses, and that ev?ry presumption must be made in favor of the constitution ;il right of a legislative body to repeal the laws which it had itself enacted. He held >iat the Legislature of Manitoba had absolute power over its own legislation, untrammeled by any appeal to Federal authority and that rights or privileges created after the union only existed until the laws creating them were repealed by the legislature that had passed the laws. The appeal to the Governor-General-in-Council applied in his opinion, only to matters prior to the Union. He did not think however, that the Barrett case concluded the applica- tion. Mr. Justice Fournier took exactly the opposite view, a view in accordance with and following out the judgment he had delivered in the Barrett case. He pointed out that the demand of the Red River delegates had been for separate schools, that what was understood to be a satisfactory guarantee in this respect had been inserted in the Mani- toba Constitution, and that until 1890 the people of lManitt)ba had enjoyed those rights and privileges under the said guarantee. It having been decided that certain rights and privileges, which the Red River delegates and the Parliament of Canada had believed to exist "by law or practice in the Province at the Union," did not in point of fact so exist, sub-section 1 was, so to speak, wiped out of the Manitoba Constitutional Act. " But," said his Lordship, " if the parties agreeing to these terms of union were in error in supposing they had by law or practice, p»-ior to the union, certain rights or privileges, they certainly were not in error in trusting that the Provincial Legislature which was being created would forthwith secure, 1)V law and in accordance with article 5 of the bill of rights, separate schools, and that the moneys would be divided be- tween the Protestant and Roman Catholic denominations pro rata to their respective populations, as claimed by Ar«^icle 5 and 7, and that once established, such rights and privileges so secured by an Act of the Legislature would at least be in the same posi- tion as rights secui'ed to minorites in the Provinces of Quebec and Ontario under Sec- tion 93 of the British North America Act, and sub-sections 2 and 3 were inserted in the Act, so that they might be protected by the Governor-Genei-al against any sub.se- quent legislation by either a Protestant or Romiin Catholic majority in after years. " His Lordship proceeded to .say that the only meaning or effect he could give to the changes from the British North America Act in The Manitoba Act was that they were intended as an additional guarantee or protection to the minority, and to prevent inter- ference later on ; that there had been an undoubted interference with the rights and privileges of the minority, and that there was nothing inconsistent in The Manitoba 44 THE MANITOBA SCHOOL QUESTION. Act as compared with the British North America Act; the former did not vary but went beyond the latter. He therefore answered in the atHrmative to all the questions with the exception of number 3. Mr. Justice Taschereau, after questioning the jurisdiction of the court to act at all, decided that the British North America Act applied to all the provinces of the Domin- ion except Manitoba, because the words not quoted in The Manitoba Act were intended not to apply ; that, therefore, there could not be any appeal, that legislation could not at the same time affect legal rights and not be ultra vires, that the School Acts of 1890 had been declared intra vires and that the petitioners were virtually renewing their im- peachment of the constitutionality of the legislation of 1890 upon another ground. No rights or privileges had been created since the union, and he would therefore answer all the questions but number 3 in the negative. Mr. Justice Gwynne decided that the appeal in sub-section 2, and the redress given in sub-section 3 related to rights and privileges created under sub-section 1, and that, therefore, rights and privileges could not be created after the union. An appeal could only lie as to matters as they existed at the time of the union. He answered all the questions except number 3 in the negative. Mr. Justice King raised the point that sub-section 1 contained an express limitation as to time, wliile in sub-section 2 nothing was said as to time. The natural conclusion, he said, was that with regard to the rights and privileges referred to in the latter clause, the time of their origin was immaterial. " I can,'" said his Lordship, '* give no other reasonable interpretation to the Act in question than tnat the exercise by the provin- cial legislature of its undoubted powers in a way so as to give rights and privileges by law to the minority in respect to education, lets in the Dominion Parliament to con- current legislative authority, for the purpose of preserving and continuing such rights and privileges, if it sees fit to do so." He decided that a system of separate schools within the rights of the minority had been established, and the Acts of 1890 could not fail to affect tiie rights and privileges of the minority in respect to education. " The view," he conim' n in general language which ought to be cojistruei' consis- tently with sub-section I ; that the position of the Governoi-General is that of a person having a power of deterniining on appeal u'et>, and that being so, he is not a perst,. vested with discretion, but >nust <^\ercise judicial authority, which is the condition })rece- dent of the Dominitin Parl'ament coming in and giving effect to his decision, what- ever it may 1,9. ttmay be remarked here that the contention of the respondents in this argument was the veiy opposite of that they adopted in the sul)se(]uent proceedini,'s, but this is a lUictter that comes up later. Mr. Haldane then addressed himself to the second pai't of the ([uestion. The pith of his argument was that a system of education had been created for tiie whole connnuuit}, and that dependant upon that system there were rights or privileges granted, of (>.\emption, which had meaning, validity and eff'ect so long, and so long only, as the system continued in effect. The system might be taken away, because (he system in itself was not an iufringoment of a right oi- privilege, thougli if the system disappeared the ground or right for e.vemption disappeared, and nt» (piestion could be raised as to the right or privilege which had oidy this contingent and conditional (Existence. The learned counsel supported this ingenious theory very ably indeeil, though without much apparent effect upon their loi'dships. Hon. .Mr. r>lfdy Mr. Hlake. In dealing with this judgment it will be well lo read over again the ipiestions referred to the supreme court given in a preceding page, in t a more coujplete understanding of the etlect »»f the decision. LATEST JUDGMENT OF THE PRIVY COUNCIL. 51 Tn the first place their Lordships found it impossible to come to any otlitT conclu- sion than that section 22 of The MajHtol)a Act was intended to he a substitute for section 93 of the B.N. A. Act. They held, therefore, that it was section 22 of The Mani- toba Act that had to be construed ; but even here? they did not entirely dissent fntm the views advanced by "Slv. Blake, foi- they pointed out that it was lej^itimate to consider the terms of the earlier Act and to take advanta;,'*' of any assistance which it niiyht afford in the construction of the latter enactment, and. in fact, they did this very thint,' at a later stage of the judijinent. Their next step was to give the exact scope of the decision in the Barn^tt case, which we may deal with later on. Fn a word, tlii'\ showed that the Barrett case dealt with a condition of aiVairs that t'xisted at the union, wiiile they had now before them events that transpired subsecpiejit to the union. The question then that pn^sented itself was : aie sub-sections 2 and 3 designed oidy to enforce the prt)hibition contained in sub-section 1. The arguments against this con- tention appeared to their Tiordships conclusive, and they held it liaidly necessary to point out the improbability that it was ever intended to give concurrent remedy by ap- peal to the (jiovernor-dieneral-in-Council. Such legislation, they said, would indeed be futile. In the opinion, thereft»re, of their Loidship-s sub-section 2 was a substaniivi' en- actment atid not designed merely as a means of enforcing the provision which pieceded it. " Tt would do violence," they said, " to sound cannons of construction if the same meaning were to be attributed to the very ditierent language employed in the twn sul)- .sections"." The next (juestion was: di.N..\. Act, which, they held, made it manifest that the provision related to })ost-uiuon legislation. Taking up the contention that such a c(»nstructi()Ji (»f the Act was inconsistent with the power of the Legislature to exclusively make laws in relation to education, ami the inherent right of a I^egislature to repeal its own legislation, their Lordships ||,'ld the argument to be fallaci »us. The powei' cimfeired is not absolute but limited, the Leiilsla- ture is not supreiae in i,ll respects, it can deal only with matters reh^gated to it liy tln» B.N. A. Act as varied hy The Manitoba Act, and education was a mattei to which this limitation expressly extended. "It may be said to be anomaUms," i-eads the pidgment, " that such restrictions as that in (piestion should be imposed on the free act imi .if a legislature, but is it more anomalous than to grant to a minority, who are iiL;<,iie\ ed by legislation, an aj)p(>al from the legislature to tin* executive authority! .\ih1 \et fliis right is expr(>ssly, and beyond all controversy, conferred. ' Taking it then to be established that subsection 2 extended to rights ;un! privileges of the Roman Catholic minority accpiired by legislation in the I'rovint'e after ilie I'nion, the next (ptestion was whether any such right or privilege had been alVeclftl by the .\cts of 1890. Their Lordships were unable to see how this cpu'stion could receive any but an afiirmati\e answer. l^)mj)aring the position (»f the minority pri(»r to IS'.IO with what it would be under tilt' legislation of that year, it was not possible to say that their riiihts and privileges in relation toeducalion had not been aiVected. Their (..ordships therefore concluded that sub-section 2 of section 22 t»f The Maiutolm A.ct is the gtucrning enact- 62 THE MANITOBA SCHOOL QUESTION. mem, and that the appt.al to the Governor-General-in-Council was admissable by virtue of that enactment, on the grounds set forth in the memorials and petitions inasmuch aa the Acts of 1890 affected rights or privileges of the Roman Catholic minority in relation to education within the meaning of the sub-section. They further decided that the Gov- ernor-General-in-Council htid jurisdiction, and that; the Appeal was well-founded, but the particular course to be persued was to be determined by the Canadian authorities, whose duties were sufficiently defined in sub-section 3 of section 22 of The Manitoba Act. All legitimate ground of complaint they thought would be removed if the system estab- lished in 1890 were supplemented by provisions which would remove the grievance upon which the appeal was founded. It will be observed that there is nothing of a hesitating character about this judg- ment. On the contrary, it is as emphatic as language can make it, and reduces the issue to a very narrow compass indeed. CHAPTER X. The Remedial Ordeu. We have now reached this stage ; that it is decided by the highest authority in the realm that rights and privileges of the Roman Catholic minority of Manitoba in respect to education have been infringed upon, and that consequently an appeal to the Gover- nor-General-in-Council will lie. The meaning of the decision, in the words " an appeal shall lie," is, in law, that the Appeal must be heard and decided in accordance with the findings of the Judicial Conmiittee. There was in fact very little for His Excellency- iu-Council to do except formally start the Remedial Order upon its mission. The Privy Council had decided the law for them, decided the facts for them, decided the mode of procedure for them, and in almost so many words directed the form their order was to take. Our Government were left really no option in the u.atter, and though something was said about the discretion to be used, it is not easy to conceive where that discretion was to come in. N('\ertheless argument was heard, the Privy Council meeting on February 26th of this yt'ar for that purpose. Mr. Dalton McCarthy appeared for the Province of Manitiiha, and Mr. Ewart for the Roman Catholic minority. The learned gentlemen deliveivd <|uite excellent stump speeches, which, had they been addressed to a Halilinmnd audience would no doubt have had eH'ect. Mr. Ewart spoke with bttwed head, so he expressed it, when lie refej-red to the broken promises of the Liberal party, and his cheeks burned with shame, so he said, when lie thought of the Protestants of Manitnlia -which was all no doubt very touching, but .scarcely essential. Mr. McCarthy had a suspicion of his learned friend's truthfulness ; arraigned members of the InMly before whom he was speaking, had something to say as to the iniquitous u.se of the French Inaguiige in Canada, repudiated the P. P. A., and challenged the Premier to an encounter either on the platform or in the back yilrd — heroic, but hardly pertinent. It is scarcely worth while wasting time or space on this so-called argument, yet it may Ite as well to indicate the line taken by the respective champions, if only to show THE REMEDIAL ORDER. 53 yet it show how little wajs left to be said on the subject. Mr. Ewart, aside from his bowed head and his blvoiies, advanced a claim to a Remedial Order on the grounds : First — the compact made by the Dominion of Canada ; second — the promises made by the Protestants of Man- itoba ; third — the promises made by the Liberal party of Manitoba ; fourth — the promises made by the Greenway Government. We cannot conceive thft any but the first had V)eai'- ing. Canada did make a compact with the Red River settlers, making certain guarantees, which compact was crystalized into law, and ratified by Imperial enactment, and upon that, and that only, could the minority rest. It is true that certain Protestant members of the Manitoba Legislature, including the Premier, did promise the Roman Catholic minority, that if they would consent to the abolition of the Provincial Senate, which they looked upon in the light of a safeguard, thtir rights would never be trampled upon. It is equally true that the Liberal party, through Mr. Martin, the father of the bills of 1890, pledged themselves not to interfere with the Roman Catholic Separate Schools. It is said, though this is denied, that Premier Greenway gave a similar plerlyo to Archbishop Tache. P»ut admitting all this, what possible bearing can it have upon thu discussion. The individuals making tiie promises may have proven themselves uiiwoi-thy of belief, or they may have been unable to deliver the goods, but eithei- way promises have no binding force, no legal eflect. If the Red River were bridijed over with promises it would not alter (»ne iota the status of the minority of tlio majority. Individuals cannot bind a party or a people. When promises are reduced to law, they then cease to be promises, but become facts, and it is with these that rights are defined. Sir George Cartier's promise to the Protestants of Quebec in IS(H) would cut a sorry figure in a court of law to-day, if it had not been invested with the authority of a Legislative enactment. We may therefore brush aside the second, rhiid, and fourth contentions of ]Mr. Ewart as iuunaterial. This gentleman's fifth argument, that government could not propeily regulate the supply of religion to be taught in the schools, that this must be done by the author! tins of the Church ; and his sixth, that the schools under the Act of 1890 are Protestant .uid not non-sectarian, are ecjually open to objection in that they were not pertinent. Tlic Council were not sitting to hear argument in favor of or against Separate or any otlit-r class of schools, but as to Ihjw a remedy was to be applied to a right or privilege tliat had been adversely affected by Provincial legislation. On this point, which Mr. Ewait did at length reach, a proposal was made for a further Act to that of 1890, called a Separate Schools Act on the lines of the Ontario Statute. The powers granted tlie minority under this law would be those asked for iit the Appeal, Mr. McCarthy's reply was very elaborate and largely not material. One can soareely I'esist the conclusion that the counsel for Manitoba was preparing the ground for un attack upon the govornnuMit in the counties, rather than trying to influence the Pi ivy Council by argument. How else, for instance, can an address of some hours on tlie <|uestion of whether Bill of Rights No. \ was or was not authentic, be accounted foi' '( That matter had been disposed of by the highest court in the realm, whose decision was irrevocable. Mr. McCarthy might as well, for all purpos(Mt could have before the tri- bunal he was then addressing, contradicted tlu> moon. How to, account for a lony; dis- sertation tending to show that Ro nan Catholic scIkuiIs are poor in class, and inen'ectuiil in result, and that l^oman Catli(tlic countries are more illiterate than Protestant coun- tries. It was the right to, and not the efticiency of separate schools that was in i|ues- tion ; in fact, the right was even then established and it was only the method of (^iforce fr%i% 64 THE MANITOBA SCHOOL QUESTION. inent that was up. Mr. McCarthy is altogether too clever a man and too old a politician to stray so far from the subject matter without an object. The learned gentleman's argument, in so far as it had direct bearing, resolved itself into this ; that a grievance had been proven to exist, that the only appeal for redress was to the Council then sitting, that this was a political and not a judicial ti'ibunal, that, therefore, discretion should be exercised, and that it would not be discreet to grant a remedy, having regard to existing circumstances. There is grave objection to be taken to this line of reasoning, as to which we shall make but short reference here. That a gi'ievance did exist, Mr. McCarthy admitted not once, but several times. He could not escape from it after the explicit pronouncement of the Judicial Comuiittees judgement. Can it then be argued that when the Constitution provides a remedy that the application of that remedy is to be left entirely to the discretion of the body in whose hands the remedy lies 1 We can find nothing to warrant such a belief in either the spirit or the letter of the Constitution, nor do we conceive it to be in consonance with the theory of free institutions. No institution can be called free, if at any time, and contrary to law, it may l)e wiped out of existence by a majority, merely because a majority is a majority. This subject will, however, demand further attention later on ; meanwhile we wish to gi%e qualified a.ssent to Mr. McCarthy's contention that the Council sat as a political body, but unijualified di.ssent to the preposition that it could use discretion, in other words, that after the last Privy Council decision it could refuse a Remedial Order. The Manitoba Act says "an appeal shall lie * * * from any Act * * * affecting any right, etc." The Privy Council had decided that a right of the min"rit> 1 ad been affected by the legislation of 1890, and that, therefore, the appeal did lie. Tlieic was no escape then from hearing the appeal. But the judgment went further. It declared that the Gov- ernor-Ge eral-in-Council had power to pass a Remedial Order, and in general terms, . ! of political )arate schools gullets of a would be apt ured in those lay be able to mt will be an ' Estates bill rference with it were not sal of certain the jurisdic- It was a n which the was the very appropriated ebec acquired those rights the Manitoba ated entirely ;a share, with (government <) ground for the Df»rainion egislaoe upon Federal body '!he Dominion ion, how can Such a claim EXPLANATORY ANI> CONTROVERSIAL. Gl i. The second contention is, and it is one we formerly held, that the powsr that created legislation has surely the right to amend or annul it. Here again error arises t^^'-ough imperfect knowledge of the powers of the Provincial Legislatures in matters rela ing to education. The legislatures have exclusive p(»wers to make laws relating t<> educatiim» " subject and according to the following provisions " the limitations l)eing as to denomina- tional schools in existence before the union, and .sepaiate scho) that they are inethcient and therefore an injury to the State. This brings up the whole que.ition of the place religion should have in the educational system of a country, a most serious matter to jeal with. We have to choose between no religion, some religion and a complete sy iem of religious teaching. It is not disputed that upon the State devolves the responsibility of educating the children of the community. But what is education 1 The three R's and a county atlas ? That definition of education will not be accepted to-day. For instance a know- ledge of the human body and the laws relating to the health are now considered essential. Is not a knowledge of God and the laws relating to the salvation of the soul equally im- portant 1 The Roman Catholics say that education is not worthy of the name unless it includes instruction in the verities of their faith. The Anglican Church believes in teaching religion in the schools, not in mere religious exercises. One Baptist body has declared in favor of purely secular schools. The Presbyterians apparently stand about midway between the two last mentioned. How are we to decide l>etween these conflict- ing views and still adhere to an undoubtedly just principle that no man should be com- pelled to pay one cent of taxes to a system of education to which he is conscientiously opposed. We cannot have a school for every denomination and we cannot have a systeni of religious teachinji that will be suitable to all. The verities of the Christian faith as understood, believed and accepted by a Roman Catholic are obnoxious to an Anglican, ibhorrent to a Presbyterian, and rank poison to -i Methodist, while the precepts of Wesley and the dogmas of Knox and Calvin are viewed by the followers of His Holiness as heretical in their conception and satanic in their influence. The enormous difficulties in the way of any satisfactory solution are apparent. Usually a compromise is effected, and that the woi-st possible. Portions of the scriptures are to be read without note or comment. We cannot conceive of a more un- wise, a more pernicious practice. No child of school age should have the Bible placed in its hands without competent instruction and explanation. This applies whether it be in school or out of it. A child might stumble through the first book of Euclid without instruction and be none the worse for it, but in a study that is to affect his whole moral nature, surely, if he needs instruction in anything, he needs it there. The proposition to simply repeat the L<>. d's Prayer and rhe Ten Commandments seems equally unwi.se. Would not the daily rej» lion under such circumstances lose all essence of religion and leave nothing to the child but a tiresome form 1 Most certainly, we should say ; if we are to have religion in the schools at all, it should be taught, and carefully taught. «2 THE MANITOBA SCHOOL QUESTION. And here we come to the line of separation. To teach religion we must have separ- fl.te schools. The Protestant bodies could unite upon a J^asis that would be acceptable to the different denominations, but the cleavage between the Protestant and Roman Catho- lic beliefs is too wide to ever hope for an agreement. The " verities " are inconsistent, antagonistic, and cannot be reconciled. There may be mutual respect and toleration, there cannot be more. It comes to this : we must have secular sch'x)ls or we must have separate schools, or the majority must refuse to the minority the inalienable right of liberty of conscience. The people of Manitoba have refused, point blank, to make their schools secular, The intention originally was, when the changes were made in 1890, to do away with al' •scriptural instruction or reading, to have the schools absolutely secular, and had this been done, much of the force of the minorty's protest would have been lost. But the Presbyterians led t\\e dissent, followed prcimptly by the other Protestant bodies, and the Roman Catholics and Mr. Greenway and ^Ir. Martin had to alter their law if not their views. A salve to the nonconformists' conscience was concocted by first declaring the schools non-sectarian and then arranging for certain portions of the Protestant Bible to be read therein. It being then settled that there is to be religious instruction or exercises in the Mani- toba schools, we come back to proposition (a) thai the teaching in schools of the Roman ■Catholic religion is an injury to the State, and an injury sutHcient to warrant the Feder- al Parliament refusing to restore to the minority certain rights guaranteed them under the constitution. There is no argument to be offered here. Those who hold this belief, and they number not a few, do so from conviction and not from reason. They look upon the Papacy as the arch-enemy of Truth and they will neither offer nor accept compromise. They will vote against anything favoring Roman Catholicism i-egardless of worldly right or justice. We must even leave them as they are. Proposition (/>) that the Manitoba separate schools were inefficient does, how- ever, admit of discussion. We have no doubt that the charge is, to a certain extent, perhaps to a great extent, true. Attorney-General Sifton says they were grossly iuetfi- •cieiit, but on the other side this gentleman is suffering from a severe attack of reportor- ial inaccuracy and newspaper misrepresentation, and when Once a man contracts this fatal habit his usefulness as a reliable recorder Is greatly irapared. However, taking the worst, that can be, or has been said, wherein is the application to the present dis- pute 1 Proving inefficiency is a condemnation of the Government under which it is allowed to exist, not the class of schools in which it is found. It has never been con- tended that the Manitoba Government had not the right of inspection and supervision and regulation of all schools. In fact it is the bounden duty of the Government to see that education is efficiently imparted, and if one-half (»f what Attorney-General Sifton says is true, the administration of his Government, and the previous Government, is indeliVjIv disgraced. Again, it is contended that the Bible lessons adopted under the law of 1890 are not objectionable and should V)e satisfactory to all classes. We have read the selections of the Advisory Board and can well conceive that they should prove entirely satisfjictoiy to all Protestants and the reverse to all Roman Catholics. It is further urged that the Manito})a Governtnent were not fairlv dealt with in being allowed only seven days to prepare for the argument before the (iovernor-General- in-Council. This is one of the Attorney-General's complaints, providing always, of course, EXPLANATOHY AND CONTliOVERaiAL. 68 ive separ- iptable to in Catho- ansistent, oleration, oust have i riglit of s secular, y with all had this Hut the dies, and iw if not declaring tant Bible the Mani- le Roman he Feder- em under his belief, ^hey look or accept •egardless oes, how- extent, ly iiierti- reportor- racts this r, taking sent dis- lich it is )een con- jei'vision nt to see a) Sifton iment, is are not ctions of fict(»i-y to with in -Cieneral- »f course, that the gentleman was not at the time suffering from an attack of misreporting. The Manitoba Government had nearly five years instead of seven days to prepare for this argument, and would have been in no l)etter state of preparation if they had been given five years longer. Lastly, it is claimed that *he Domini(jn, a large body, is imposing something dis- tasteful upon Manitoba, a small body, by mere force of numbers. To most people the basis of the dispute would appear to be the attempt of a very large majority in Manitoba to impose something very distasteful and absolutely illegal upon a very small minority in the same province. These we take to Ije the chief reasons advanced why Parliament should, in exercising its functifms in tlie matter, come to the conclusion that it would Vje better for all concerned to waive the rights of the minority ajul refuse the redress provided for in the Constitu- tion. We hold them, (tn the grounds given, to be entirely insufficient. On the other hand what is to be said ? Separate schools weie devised for the benefit, not of Roman Catholics, but of Protestants. T'ae Constitution of Canada, so far as it deals with separate schools, was framed in the interest, not of Roman Catholics, but of Protestants. The regulations establishing the right of appeal in favor of separate schools engrafted into the Manitoba Constitution were made specially explicit and binding for the future use, not of a Roman Catholic, but of a Protestant minority, though as events turned out the minority is the other way. The rights of the minority in tl.is instance arise from a compact entered into between the people of Canada and those of the Red River, a conipact ratified and made binding by the Parliamsnt of both peoples and the Imperial Pai-liament as well. This compact defines the rights and prescribes the mode of redress. The minority in defence of their rights have complied with evejy form of the law, have carried their case through «very court of jurisdiction in the land to the fe in tlie form of a bill to Parliament. There the duty of the Government ends. It mav make the biil its own and stand or fall by it, but it need not do so. The measure is not a Government one in the sense of being initiated by the Government, and its rejection by Parliament need not be followed by the resignation of the Ministry, as would be the case if a measure initiated by the Govern- ment were defeated. Parliament may reject the Remedial Order, but if it does so, it will be at the expense of honor anil by the violation of treaties ; it will !>« a triumph of expeiiiency over right, and of votes over justice ; it will be by sacrificing the sacred compacts of the people to the clamor of prejudice ; it will be a despicable yielding up of the weak to the str(»ng, and that in defiance of the law and contrary to the decisions of the courts ; and it will l)e in opposition to every rule of Hritish fair play jmd every canon of British states- manship, the first principle of which is the invoilablesacredness of treaty rights. iimnion •ovision iv, and ere the i it, but litiated by the lovern- ?xpense r right, oplt' to strong, I it will states- APPENDIX. THE LATEST JUDdMENT OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. The 2ud section of the MHuitoba Act enacts that after the prescribed day th'j British North America Act shall "except those parts thereof " which are in terms made or by reasonable i:i- " tendment may be held to be specially applic- "able to or only to affect one or more but not " the whole of the provinces now compoainj; the " Dominion, and except ^<» far as the same may "be varied by this Act, be applicable to the " Province of Manitoba in the mime way inid to "the like extent as they apply to Hie several " iirovinces of Canada, and as if the Province " of Manitoba had been one of the provinces "originally united by the said Act." It cannot be (piestioned therefore that section 9.*i of the British North America Act (save such parts of it as are specially applicable to some only of the priivinces of which the Dominion was in 1870 composed) is made applicalile to the Province of Manitolwi except in so far as it is varied liy the Manitoba Act. The 22nd section af that statute deals with the same subject-matter as section 5>.'i of the British North America Act. The 2nd Bub-section of this latter section may he dis- cardml from consideration, as it is manifestly applicable only to the Provinces of (Intario and Quebec. The remaining provisions cU)sely cor- respond with those of Hcction 22 of the Mani- toba .\ot. The only ditterence between the introductory part and the Ist sub-sei'tion of the two sections, is that the Manitoba .Act in the words " or practice ' are added after the word " law " in the 1st sub-section, The .'ird sub- section of section 22 of the Manitol»a .\ct.is identical with the 4th sub-section of section '.KM of the British N«irth .America Act. The 2nd and .'b'd sub-sections respectively are the same, except that in the 2nd sub-section of the Mani- toba Act the woitls "of the Legislature of the Province or " are insertetl before tlie words "any Provincial authority," and tliat the .Mrd sub-section nf the British North America .Act commences with the wonis : " Where in any " Province a system of separate or dissentient "schools exists hy law at the I'nion or Ir " thereafter estaltlished by the Legislature of " the Province." In view of this comparison it appears to their Lordships impoHsiltle to come 60 to any other conclusion than that the 22. \ sec- tion of the Manitolm Act was intended to be a substitute for the W.'bd section of the British N(jrth .America Act. Obviously all that was in- tended ti> be identical has been repeated, and in so far as the provisions of the Manitoba Act diH'er from those of the earlier statute they must be regarded as indicating the variations from those provisions intended to be introduced in tile Province of Manitoba. In their Lordships' opiniim, therefore, it is the 22nd sectiim of the Manitoba Act which has tti i)e construed in the present case, though it is of course legitimate to consider the terms of the I' ier Act, and to take advantage of any assis- tance they may attbrd in the construction of eivictments with which they so closely corres- [)ond, and which have been substituted for them. Before entering upon a critical e.\amination of this important section of the Manitoba Act, it will be convenient to state the circuni.stance» under which that .Act was passed, and also the exact scope ()f the decision of this Board in the ca.se of /]?((/•»■.'// v. Tin- C,if\i nf WinniiM'ij, which seems to have given rise to some misapprehen- sion. In 18(i7 the I'nion of the Provinces of Canada, Nova Scotia and New Brunswick took place. .Amon^j the obstacles which had to be overcome in order to bring about that union, nolle, perhaps, presented greater diHiculty than the dill'erences of opinion which existed with re- gard to the (piestion of education. It had been tlie sultject of much controversy in I'pper and Lower Canada. In I'pper Canada a general system of umlenominational education had been estalilished, but with provision for separate Hchools to supply the wants of the Catholic in- habitants of that province. The 2nd sub-sec- tion of Hcction {>•'< of the British North .America .\ct extoiiiled all the powers, privilegen and duties which were then by law conferred and imposed in I'pper Canada (vii the separa'^e schools and school trustees of the Uoman Catholic inhabitants of that Province to the dissenrient schools of the Protestant and Uoman Catholic inhaiiitants of Queltec. Tlieri' can be no d(Uilit that the views of the Koiiian Catholic 66 THE MANITOBA SCHOOL QUESTION. inhabitants of Quebec and Ontario with regard to education were shared by the members of the same communion in the territory which after- wards became the Province of Manitoba. They rej^arded it as essential that the education of their children should be in accordance with the teaching of their Chiu-ch, and considered that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed, but could only be secured in schools conducted under the influence and guidance of the author- ities of their Church. At the time when the Province of Manitolia became part of the Do- minion of Canada, the Roman Catholic and Protestant populations in the province were about ecjual in number. Prior to that time there did not exist in the territory then incorporated any public system of education. The several reli- gious denominations had established such schools as they thought tit, and maintained them by means of funds voluntarily contributed by the members of their (jwn communicm. None of them received any State aid. The terms upon which Manitoba was to be- come a i*rovince of the Dominion were matter of negotinticm between representatives of the inhabitants of ,\Tanitoba and of the Dominion riovernment. 'j'ae terms agreed upon, so far as education was concerned, must be taken to be embodied in the 22nd section of the Act of 1870. Their Lordships do not think that anything is to be gained by the iiujuiry how far the provi- sions of this section placed the Province of Manitoba in a diileretit position from the other Provinces, or whether it was one more or less advantageous. There can be no presumption as to the extent to which a variation was intended. This can only be determined by cimstruing the words of the secti«)n according to their natural signification. .Vmong the very first measures passed by the Legislature of Manitoi>a was an \ct to establish a system of education in the Province. The 1»rovisions of that Act will rei|uire examination, t is sufficient for the present to say that the system established was distinctly denomina- tiy pleased. Itapjieared to their Lordships that this right or privilege remained untouched, and therefore could not be said to be affected by the legislation of 1890. It was not doubted that the object of the 1st sub-section of section 22 was to afford protection to denominational schools, or that it was proper to have regard to the intent of the Legislature and the surrounding circumstances in interpreting the enactment. But the ques- tioii which had to be determined was the true construction of the language used. The func- tion of a tribunal is liirited to construing 'Ue words employed ; it is not justified in forcing into them a meaning which they cannot reas«»n- ably bear. Its duty is to interpret, not to enact. It is true that the constructitm put by this Board ui)on the 1st sub-section reduced within very narrt)w limits the protection afforded by that sub-section in respect of de- nominatitmal schools. It may be that those who were acting on behalf of the Roman Cath- olic C(mnnunity in Manitoba, and those who either framed or assented to the wording of that enactment, were under the impression that its scope was wider, and that it afforded protectitm ureater than their Lordships held to be the case. But such considerations cannot properly in- fluence the judgment of those who have judicially to interpret a statute. The (iuestie, but such a course would on the whole be (|uite as likely to defeat as to further the object which was in view. Whilst, how- ever, it is necessary to resist any temptati(m to deviate from sound rules of construction in the hope of UKire completelj' satisfying the intention of the Legislature, it is ijuite legitimate, where more than i>ne construction of a statute is pos- sible, to select that one which will l»est carry out what appears from the general scope of the legislation and the surrounding circumstiuices to have been its intention. With these preliminary observations their Lordships proceed to consider the terms of the 2nd and .'{rd sub-sections of section 22 of the .\ct of 1870, upon the construction of which the • luestions submitted chiefly depend. Kor the reasons which have been given their Lordshijts conc'iu' with the majority of the Supremo Court in thinking that the main issues are not in any way concluded either by the decision in Ihnn'll h cape or liy any principles involved in that de- cision. .\t the (tutset this ouestion presents itself. .\re tiio 2nd and '.^l•^\ sui)-sections, as contended ))y the Itespondent, and athrmed l»y sonut of the .ludges of the Sunreme Court, designed only to enforce the prohiiiition contained in the Istsui)- section '. The arguments against this contention ajtpear to their Lordships conclusive. In the first place that suit-section needs ti" further pro- vision to enforce it. It imposes a limitation r.ft-T'lS' theref«>re ij^islation object <)i to afford >r that it nt of the instances he <|ue8- the true he func- •uing • ue II forcing it reason - t, not to n put by I reduced •rotection ct of do- lat those lan Cath- luse who tig of that II that its •rotection ! the case. t)erly in- lo have I (|iiustion been in- lore coni- en to the nee were Bgislation lid on the o further Ist, how- tation to in in the intention te, wliere ,e is poB- test carry te of the (tiuices to )iiH their IIS of the .'ii of the tt hid) tlie Fur the ionlAhiiis III) Court )t in any tliat do- itH itself, intended no of the only to APPENDIX. 67 iHt sub- iiititntion In the •thor pro- imitation •on the legislative {Kjwers conferred. Any en- actment conti-avening its provisions is beyond the cfinipetency of the Provincial Legislature, and therefore null and void. It was so decided by this Board in Bdiictt's cjise. A doubt was there suggested whether that appeal was o;)m- petent, in consequence of the provisions of the 2nd sub-section, but their Lordships were satis- tied that the provisions of sub-section 2 and 'A did not " operate to withdraw such a ({uestion as that involved in the case from the jurisdiction of the ordinary tribunals of the country." It is hardly necessary to point out how improbable it is that it should have been intended to give a concurrent remedy by appeal to the Governor- r-(Teneral-in Council on an appeal to him considered it idhn ri'i's, what would happen ( If the Provincial Legislature declined toyeld to his view, as would almost certainly and most naturally be the case, recourse could only be had to the Parliament of the Dominion. But the Parliament of Canada is <»nly empowered to legislate as far as the cir- cumstances of the case re(|uire "for the duo execution of the provisictns" of the 22nd sec- tion. If it were to legislate in such a case as has been supposed, its legislation would neces- sarily be declared nil in riirn by the Courts which had decided that the provisions of the suction had not been violated by the Legislature of the Province. If, on the other hand, the ( Jovernor- (Jeneral declared a Provincial law to be intiu rlii's, it would be an inetloctual declaration, [t could only be made effectual by the action of the Courts, which would have for tlieiusolves t(» de- termine the ( I uestion which he decided, and, if they arrived at a different conclusion and |»ro- nounced the enactment nit in rirex, it would be none the less null and void because the(iover- inir-(ii«neral-iii-Coun(Ml had declared it Intrn riirn. These considerations are of themselves most L'uguiit to show that the 2iid sub-section ought not to lie construed as giving to parties aggrieved an apjieal to the ( Jovernor-(ieiiefal-in- Council concurrently with the right to resort to the Courts in case the provisions of tin- 1st siili- section are contravened, unless no other con- struction of the sub-sections be reasonably pos- sil)le. The nature of the remedy, too, wiiich the ."trd sub-section provides, for enforcing the decision of the (ioveriior-liloneiiil, Htinngly con- tirms this view. The remedy is either a pro- vincial law or a law passed by the Parliament of Canada. What would l)e the utility of passing a law for the purpose ineiely of annulling an enactment whii^h the ordinary tribunals would without legislation declare to be null, and to which they wouitl refuse to give effect I Such legislation would indeed lie futile. So far the matter has been dealt with aiiart from an exainination of the terms of the 2nd sub-section itself. The considerations adverted to would seem to justify any possible construc- tion of that sub-8ecti(ui which would avoid tiie consetiuences pointed out. But when its lan. guageis examined, so far fnmi p-esenting any as8ed by the Provincial Legisla- ture because it abrogated rights conferred by previous legislation, whilst, if there had been no previous legislation, the Acts complained of would not only have been intra rires but could not have afforded ground for an a|)peal . There is no doubt force in the argument, hut it admits, their Lordships think, of an answer. Those who were stipulating for the provisions of section 22 as a condition of the Union, and those who gwve their legislative assent to the Act I'j which it was brought about, had in view the perils then apprehended. The immediate adoption by the Legislature of an educaticmal system ol)noxiou8 either to Catholics or Protest- ants would not be contemplated as possible. As has been already stated, the Roman Catholics and IVotestants in the Province were about eiiual in number. It was impossible at that time for either party to obtain legislative sanction to a scheme of education obnoxious to the other. The estaUlishmeiit of a system of ]jublic educa- tion in which both parties would concur was 1)robably then in immediate prospect. The jegislature of Manitoba first met on the 15th of March, 1871. On the 3rd of May following, the Education Act of 1871 received the Royal Assent. But the future was uncertani. Either Roman Catholics or Protestants might iiecome the preponderating power in the Legislature, and it might, under such conditions be, impossible for the minority to prevent the creation at the |)ubliu cost of schools which, though acceittable to the majority, could only be taken advantage of by the minority on the terms of sacriticing their cherished convictions. The change to a Roman Catholic system of public schools would have been regarded with as much distaste by the ProtestiMits of the province as to the change «>f an unsectarian system was by the Catholics. Whether this explanation bo the correct one or not, tlieir Lordships do not t' k that the dirticulty suggested is a sutticier .rrant for departing from the plain meanin. the words of the enactment, or for refusiii ■ adopt the construction which apart from ' j objection would seem to be the right one. Their Lordships being of oftinion that the enactment which governs the present case is the 22nd section of the Manitol)a Act, it is unneces- Stiry to refer at any length to the arguments derived from tiie provisions of section DM of the Hritish North .America Act. lUit in so far as they throw light on the matter they do not in their Lordsliip's opinion weaken, but rather strengthen, the views derived from a study of the latter enactment. It is admitted timt the Mrd and 4th sub-sections of section 5)3 (the latter of wiiich is, as his been oltserved, identical with sub-section 3 of section 22 of the Manitoba Act), were not intended to have oHect merely when a Provincial Legislature had exceeded the limit imposed on its powers by sub-section 1, for 8ub-secti(m 3 gives an appeal to the Gover- nor-General, not only where a system o* reparate or dissentient schools existed in a Province at the time of the Union, but also where in any pro- vince such a system was " thereafter established by the Legislature of the Province." It is manifest that this relates to a state of things created by post- Union legislation. It was said it refers only to acts or decisions o' a "Pro- vincial authority," and not to acts of a Provincial Legislature. It is unneces.sary to determine this point, but their Lordships must express their dissent from the argument that the insertion of the words "of the Legislature of the Province " in the Manitoba Act show that in the British North America Act it could not have been intended to comprehend the Legislatures under the words " any Provincial authority. " Whether they be so comprehended or not has no bearing on the point immediately under discussion. It was argued that the omission from the 2nd sub-section of section 22 of the Manitoba Act of any reference to a system of separate or dis- sentient iiohools " thereafter established by the Legislati'.re of the I'rovince" was unfavour- able to the contention of the Apellents. This argument met with some favour in the Court below. If the words with which the 3rd sub- section of section W.i commences had been found in sub-section 2 of secti(jn 22 of the Manitoba Act, the omission of the following words would no doubt have been important. But the reason for the dirterence between the sub-sections is manifest. At the time the Dominion .\ct was passed a system of denominational schools adapted to the demands of the minority existed in some Provinces, in others it might thereafter be established by legislation, whilst in Mani- toba in 1870 no such system was in operation, and it could only come into existence by being "thereafter established." The words which preface the right of appeal in the Act creating the Dominion would therefore have been ijuite inapi)ropriate in the Act i)y whtch Manitoba became a Province of the Dominion. But the terms of the critical sub- section of that Act are, as has been shown, (|uite general, and not made subject to any con- dition or limitation. Before leaving this part of the case, it may be well to notice the argument urged by the Respondent that the construction which their Lordships have [lut upcm the Ind and 3rd sub- sections ot section 22 of the Manitoba Act is inconsistent with the power conferred upon the Legislature of the Province to "exclusively miike laws in relation to education.'' The argument is fallncious. The power conferred is not absolute but limited, it is exercisable only "subject and according to the following Itrovisions." The sub-sections which follow, therefore, whatever be their true construction. AFPIUWIX. 69 detine the conditions under which alone the Provincial Le^^islature may legislate in relation to education, and indicate the limitations im- posed on, and tlie exceptions from, their power of exclusive legislation. Their right to legis- late is not indeed, properly speaking, exclusive, for in the case specified in sub-section 3 the Parliament of Canada is authorized to legislate on the same subject. There is therefore no such inconsistency as was suggested. The learned Chief Justice of the Supreme Court was much pressed by the consideration that there is an inherent ri^ht in a Legislature to repeal its own legislative acts and that "every presumption must be made in favour of ' ' the constitutional right of a legislative body " to repeal the laws which it has itself enacted." He returns to this point more than cnce in the «ourse of his judgment, and lays down as a maxim of constitutional construction that an Inherent right to do so cannot be deemed to be withheld from a legislative body having its origin in a written constitution, unless the con- stitution in express words takes away the righo, And he states it as his opinion that in construing the Manitoba Act the Court ought to proceed on this principle, and to hold the Legislature of that Province to have absolute powers over its own legislation, untrammelled by any appeal to federal authority, unless it could find some restriction of its rights in that respect in express terms in the Constitutional Act. Their Lordships are unable to concur in the view that there is any presumption which ought to influence the mind one way or the ctther. It must be remembered that the Provincial Legis- lature is not in all respects supreme within the I'rovince. Its legislative power is strictly limited. It can deal only with matters declared to be within its cognizance by the British North America Act as varied by the Manitoba Act. In all other cases legislative authority rests with the Dominion Parliament. In relation to the subjects specified in section 92 of the British North America Act, and not fal- ling within those set forth in section 91, the exclusive power of the Provincial Legislature may be s-tid to be absolute. But this is not so Hs regards education, which is separately dealt with and has its own C(Kle both in the British North America Act and in the Manitoba Act. It may be said to be anomalous and such a restriction as that in (|U08tion should be imposed on the free action of a Legislature, ))Ut is it more anomalous than to grant to a minority who are aggrieved by legislation an appeal from the Legislature to the Executive authority ? And yet this right is expressly and beyond all con- trctversy conferred. If, upon the natural construction of the language used, it should appear that an appeal was permitted under circumstances involving a fetter upon the power of a Provincial Legislature to repeal its own enactments, their Lordsliips sees no justifica- tion for a leaning against that construction, nor do they think it makes any difference whether the fetter is imposed by express tvords or by necessary implication . In truth, however, to determine that an appeal lies to the Governor-General in Council in such a case as the present does not involve the proposition that the Provincial Legislature was unable to repeal the laws which it had passed. The validity of the repealing Act is not now in question, nor that it was effectual. If thedecisionbe favorable to the Appellants the consequence, as will be pointed out presently, will by no means necessarily be the repeal of the Acts of 1890 or the renactment of the prior legislation. Bearing in mind the circumstances which existed in 1870 it does not appear to their Lordships an extravagant notion that in creat- ing a Legislature for the Province with limited powers it should have been thought expedient, in case either Catholics or Protestants became preponderant, and rights which had come inio existence under different circumstances were interfered with, to give the Dominion Parlia- ment power to legislate upon matters of education so far as was necessary to protect the Protestant or Catholic minority, as the case might be. Taking it then to be established that the 2nd sub-section of section 22 of the Manitoba Act extends to rights and privileges of the Roman Catholic minority acquired by legislation in the Province after the Union, the next (juestion is whether any such right or privilege has been affected by the Acts of 1890? In order to answer this (juestion it will be necessary to examine somewhat more closely than has hitherto been done the system established by the eo appointed Superintendent of the Protest- nnt schools, and one of the Catholic members Superintendent of the Catholic schools, and these two were to l)e the joint secretaries of the Board, wliicli was t^t select the books to be used in tlie schools, except those having reference to religion or morals which wore to be porscribed by the sections respectively. The Legislative grant for comimm school eilucation was to be appropriated, one moiety to sujtport the Protest- ant, the other moiety to the Catholic schools. Curtain districts in which the population was mninly Catholic were to be considered Catholic school districts, and certain other districts where the population was mainly Protestant were to be considered Protestant school districts. 70 THE MANITOBA SCHOOL QUESTION. Every year a ineetinj^ of the male inhahicants of each district, sununonecl by the Superintendent of the section to whicli the district belonged, was to appoint trustees, and to decide whether their ciintribu^ions to the support of the schools were to be raise.' by subscription, by the col- lection of a rate pel scholar, or by assessment on the prfiperty of the ilictrict. They mi^htalso decide to erect a school hout;'>, and that the cost of it should be raised by assesr.ment. In case the father or guardian of a school child was a Protestant in a Catholic district or ruo rernd, he might send the child to the school of tho nuarest diiitrict of the other section, and in case he con- tril)uted to the school the child attended a sum equal to what he would have been bound to pay if he had belonged to that district, he was ex- empt from payment to the school of the district in which he lived. Acts amending the education law in some respects were passed in subseijuent years, but it is not necessary to refer to them, as in 1881 the Act of 1871 and these amending Acts were repealed. The Manitoba School Act of 1881 followed the same general lines as that of 1871. The number of the Board of Education was fixed at not more than 21, of whom 12 were to be Protestants and 9 Catholics. If a less number were appointed the same relative pro- Eortion was to be observed. The Board as efore was to resy later Acts of tho Legislature, but they did not attect in substance the main features, to which attention has Iteun called. Wliile traces of the increase i>f the Protestant relatively to the Catholic popula- tion may be seen in the course which legislation took, the position of the Catholic and Protestant portions of the community in relation to educa- tion was not substantially altered, though the State aid which at the outset was divided eiiually between them had of course to be adjusted and made proi)ortionate to the school population which each supplied. Their Lordships pass now to the Department of Education and Public School Acts of 1890 which certainly wrought a great change. Under the former of these Roman Catholics were not entitled as such to any representation on the Board of Education or on the Advisory Board, which was to authorize text books for the u.se of pupils and to perscribe the form of religious exercises to be used in schools. All Protestant and Catholic school districts were to be subject to the provisions of the Public School Act. The public schools were to be free, and to be entirely non-sectarian. No religious exercises were to be allowed unless conducted according to the regulations of the Advisory Board, and with the authority of the school trustees for the district. It was made the duty of the trustees to take possession of all public school property which had been acquired or given for public school purposes in the district. The Municipal Council of every city, town, and village was directed to levy and collect upon the taxable property within the Municipality such sums as might be recjuired by the public .school trustees for school purposes. No Municipal Council was to have the right to exempt any property whatever from school taxation. And it was expressly enacted that any school not conducted according to all the provisions of the Act, or the regulations of the Department of Education, or the Advisory Board, should not be deemed a public school within the meaning of the law, and that such school should not participate in the Legislative grant. With the policy of these Acts their Lordships are not concerned, nor with the reasons which led to their enactment. It may be that as the population of the Province became in propor- tion more largely Protestant, it was found increasingly ditficult, especially in sparsely populated districts, to work the system inaugurated in 1871, even with the modifica- tions introduced in later years. But whether this be so or not is immaterial. The sole (pies- tien to l)e determined is whether a right or privilege which tho Roman Catholic minority previously enjoyed has been attected by the legislation of 1890. Their Lordships are unable to see how this question can receive any but an afiirmative answer. Contrast the position of the Roman Catholics prior and sui)8oquent to the Acts from which they appeal. Before these passed into law there existed den;[ht or ninority by the e uniihle but an ition (»f uont to Ik'fore nominii- inHniij^o- litholics, sed nnd 18 teiich- rtionutu share of the money contributed for school pur- poses out of the general taxation of the Province, and the money raised for these pur- poses by local assessment wat, so far as it fell upon Catholics, applied only towards the support of Catholift schools. What is the position of the Roman Catholic minority under the Acts of 1890? Schools of their own denomination, conducted according to their views, will receive no aid from the State. They must depend entirely for their support upon the contribu- tions of the Roman Catholic community, while the taxes out of which the State aid is granted to the schools provided for by the statute fall alike on Catholics and Protestants. Moreover, while the Catholic inhabitants remain liable to local assessment for school purposes, the [)ro- ceeds of that assessment are no longer destined to any extent for the supjiort of Catholic schools, but afford ^he means of maintaining sshools which they regard as no more suitable for the education of Catholic children than if they were distinctively Protestant in their character. In view of this comparison it does not seem possible to say that the rights and privileges of the Roman Catholic minority in relation to education which existed prior to 1890 have not been affected. Mr. Justice Ta!(chereau says that the legisla- tion of 1890, having been irrevocably held to be intin r/jys, cannot have " illegally " atlected any of the rights and privileges of the Catholic minority. But the word "illegally"' has no place in the sub-section in (piestion. The appeal is given if the rights are in fact atfected. It is true that the religious exercises pre- scribed for public schools are not to be distinctly Protestant, f(»r they are to be " non-sectarian," and any parent may withdraw his child from them. There may he many, too, who share the view expressed in one of the atiidavits in Hm- reft's case, that tiiere should not be any con- scientious objections lic education acceptable to Catholics and Protestants alike, tlie elaborate enactments wiiich have been the Hul>ject of so much contri>versy and consideration would have been unnecessary. It is notorious that there were acute differences of opinion betwean Catholics and Protestants on the education question prior to 1870. This is recognized and emphasised in almost every line of those en- actments. There is no doubt either what the po'nts of difference were, and it is in the light of these that the 22nd section ( f the Manitoba Act of 1870, which was in truth a Parliament- ary compact, must be read. For the reasons which have l)een given their Lordships are of opinion that the 2nd sub- section »jf section 22 of the Manitoba Act is the governing enactment, and that the appeal to the Govenier-General in Council was admis- sible by virtue of that enactment, on the grounds set forth in the memorials and peti- tions, inasmuch as the Acts of 1890 affected rights or privileges of the Roman Catholic minority in relatit)n to education within the meaning of that sub-section. The further (lues- tion is submitted whether the Governor-Gen- eral in Council has power to make the declara- tions or remedial orders asked for in the memorials or petitions, or has any other juris- diction in the premises. Their Lordships have decided that the (iovernor-(}eneral in Council has jurisdiction, and that tlie appeal is well founded, but the particular course to be pur- sued must bo determined by the authorities to whom it has been committed by the statute. It is not for this tribunal to ntimato the precise steps to be taken. Their general character is sutticiently defined by the Mrd sub-section of section 22 of the Manitoba Act. It is certainly not essential that the statutes repealed by the Act of 1890 should be re-en- acted, or that the precise provisions of these statutes should again l)e made law. The sys- tem of education embodied in the Acts of 1890 no doubt commends itself to, and adequately supplies, the wants of the great majority of the inhabitjints of the Province. All legitimate ground of complaint would l)e removed if that system were supplemented liy provisions which would remove the grievance upim which the appeid is founded, and were modified so far as might be necessary to give effect to these pro- visions. Their Lord8hi[»s will humbly advise Her Majesty that the (juestions submitted should be answered in the manner indicated by the views whicli they have expressed. There will be no c<»sts of this appeal.