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EDVv .RD MEEK 
 
 MAIL BUILDING, 
 TORONTO, ONT, 
 
 THE 
 
 PRICE, 20 CENTS 
 
 IHPIJ" 
 
 LEGAL AND CONSTITUTIONAL ASPECTS 
 
 OF THE 
 
 MANITOBA SCHOOL QUESTION 
 
 The STATUTES, The PRIVY COUNCIL DE 
 CISIONS, The REMEDIAL ORDER, and 
 The ANSWER of Manitoba, 
 |/9 considered. 
 
 BY 
 
 EDWARD MEEK 
 
 Barrlsier, etc., Toronto, Out. 
 
 TORONTO : 
 
 THE HUNTER, ROSE CO. Ltd., PRINTERS 
 
 1895. 
 
THE LEGAL AND CONSTITUTIONAL ASPECTS 
 
 OF 
 
 THE MANITOBA SCHOOL (jDESTION 
 
 AND THE REMEDIAL ORDER. 
 
 My purpose is to consider briefly the lerrislation and 
 decisions affecting the Manitoba Scliool controversy 
 —the rights of reli<rious chisses and denominations to 
 have separate, dissentient, or denominational schools, 
 under our constitution, the principles which n)ust govern 
 the consideration of these ([ucstions, and the jwivers and 
 duties of the Dominion Government and Parliament in 
 relation thereto. 
 
 So much has been M^ritten, that some may say, " We 
 know all about it," others, " Nothing new can be said." 
 
 The prejudiced do not want their opinions disturbed. 
 The interested fear to have their case weakened. The 
 intolerant see only one side. Fanatics will not reason. 
 
 All great (|uestions have many aspects ; their discus- 
 sion cannot be exhausted. We each see but a limited 
 landscape. Our views are always from a <leHnite stand- 
 point. No one can observe a scene from every point of 
 view. The same may be said of every great question. 
 It may present a different aspect from every standpoint. 
 
 The political constitution of a covmtry is a great ques- 
 tion. The education of a people is a great ([uestion. 
 
 /! 
 
 '«Ki*^»r4!i«.1i'35K--<*> 
 
4 
 
 2 he Leyal and GonRtitutional AapecU 
 
 Ueli<'ion is a ^n-cat question. The Marutoba Scliool (jucs- 
 tioii embraces all these, hence the Manitoba School (jues- 
 ^tion is a great ([iiestion. 
 
 The majority of people have not time to read books 
 on all <|uostions, not even on great (jueations. They 
 want the pith and substance only. The Tacts and observa- 
 tions must therefore be compressed. 
 
 Here lies the difficulty of the v^^riter. He must com- 
 press, and at the same time he must be clear and accu- 
 rate. He must keep the mental condition of the aver- 
 age reader in mind, and, at the same time, he must omit 
 all details that do not necessarily a^'ect the result. 
 
 I shall not say much about education in general, nor 
 about what constitutes education. 
 
 The legal and constitutional aspects of the Manitoba 
 School question, the Remedial Order, and the Answer of 
 the Province, are my principal themes ; and yet, the 
 duties of the State with regard to education, and the 
 merits and demerits of religious education will call for 
 some incidental remarks. 
 
 A Remedial decision has been given by the Dominion 
 Cabinet — the popular name for the committee constitu- 
 tionally styled " The Queen's Privy Council for Canada," 
 and " the Governor-General-in-Council." For brevit}^ 
 we may call this committee the ])ominion Government 
 or simply the Council. 
 
 First, as to the nature of our political constitution. 
 Much is being said and written about Provincial Rights. 
 Many seem not to know, or to forget, that in Canada 
 both Provincial rights nnd Dominion rights are limited. 
 
 The Dominion of Canada has a written constitution, 
 
 
of the Manitoba School Qi ted ion. 
 
 
 just as the iriiit(Ml States has a written constitution. We 
 have constitutional resti ictions on Provincial rights, just 
 as they have constitutional restrictions on State ri«;hts. 
 
 The courts are the interpreters ol' our constitution and 
 of each ol' its provisions, just as the courts are the inter- 
 preters ot the Fedei-ai constitution and of each ol' the 
 State constitutions in the United States. 
 
 The validity of the Acts, both of the Dominion Parlia- 
 ment and of the Provincial Lef^islaturos, may be (]ues- 
 tioned and determined in any of our courts, just as the 
 validity of the Acts of Conrri-ess and of the State Leois- 
 latures may be ((uestioned and determined in the courts 
 of the ITnited States. 
 
 In both countries, the courts may decide an Act to be 
 ultra vires or unconstitutional. There is the power of dis- 
 allowance by the Dominion Government, of provincial 
 legislation ; a ])ower which is not possesse<l by tin; Fed- 
 eral Government over state legislation ; but, in both 
 countries, the courts alone can determine the constitu- 
 tionality of any legislation. In this respect, the courts 
 are above the Legislatures. In this res])ect, both coun 
 tries differ from Great Britain. There, Parliament is 
 supreme, and the validity of its acts cannot be (j uestioned 
 in any court. 
 
 Hence, where any conflict or difficulty in constitutional 
 interpretation arises under our constitution, the courts 
 must decide. The Judicial Gommittee of the Imperial 
 Privy Gouncil is the final Goiu't of Appenl foi- the whole 
 Bri ish Empire, on Golonial (piestions. 
 
 I should also add that, as our constitution has been 
 created by Acts of the Imperial Parliament of Great Bri- 
 
6 
 
 The Legal and Constitutional Aspects 
 
 \l 
 
 tiiiii, it can only \)0 chan^'od, anicndcd or added to (cxcopt 
 to the extent to vvhicli the power to chani^^e or amend its 
 provisions has been conferred on the Doniinion Parlia- 
 ment and F^-ovincial Le^n.slaturea I'espcctively) by Im- 
 perial legislation. 'I'hese preliminary observations will 
 help to elucidate what follows. 
 
 The Confederation Act of IHi)/' united the four pro- 
 vinces of Upper and Lower Canada, Nova Scotia, and 
 New Brunswick, and made provision for the subsecjuent 
 admission of the other colonies and territoi-ies of British 
 North America into the Canadian Confederation. It de- 
 fined and limited the lej^islative and governinf,^ powers of 
 the Dominion Parliament, and of the Provincial Legisla- 
 tures respectively ; and Section 93 assigned to the Pro- 
 vincial Legislatures the e,i:clusive power to make laws 
 " in relation to education," but with this restriction, viz. : 
 that no Provincial Legislature shall pass any law pre- 
 judicially affecting any right oi- privilege with respect to 
 denominational schools, which any class of persons had 
 by law at the nnion. 
 
 It seems clear that this is a liniitafion on the exclusive 
 power conferred, and that any ^^rovincial law violating 
 this restriction would be ultra vires and void. 
 
 But there is a further provision, applicable only to 
 " Protestant " and " Roman Catholic " minorities, in the 
 provinces, and applicable only where any system of 
 " separate" or " dissentient" school existed by law at the 
 unio)}, or is thereafter established by the Legislature of 
 the Province. This provision gives a right of appeal to 
 the Governor-General in Council from any Provincial 
 Act or decision affecting any right or lyrivilege of such 
 minority in relation to education. 
 
oj the Manitoba i^chuui Qaetition. 
 
 I >v 
 
 It is (juite clear from this that any valid Provincial 
 Act affecting any ri^Mit or privilc^^o posHeHHod hy a Pro- 
 testant or Konian Catholic minority, in any provinct;, in 
 relation to education, no matter when accjuired, may be 
 appealed a;^ain.st. 
 
 This clause is not a limitation on the powers conl'erred 
 on Provincial Lcf^islatures. Its object is solely to ^ive a 
 rijy^ht of appeal from the Provincial authority to the Fed- 
 eral authority, a;;ainnt Provincial educational laws that 
 arc intra vires and valid, but which may afiect the 
 rights or privileges of the minority. 
 
 The Confederation Act, therefore, creates, — firstly, a 
 limitation on Provincial rights; and, secondly, gives a 
 right of appeal against Provincial Acts, — in relation to 
 education. 
 
 Now let us consider the ]\Ianitoba Act, (82 and 33 vie. 
 cap. 3 sec. 22, Canada), and find wherein it diil'ers, il* 
 at all, from the Confederation Act. 
 
 For convenience, I will place in parallel cohnnns the 
 sections of the Manitoba Act, and the correspondii>g sec- 
 tions of the British North America Act, in relation to 
 education, omitting sub-section 2 of Sec. 93, as it does 
 not affect the ({uestions under consideration': — 
 
 British North Amkrica A(;t, 
 Sko. !};}. 
 
 In and for each province the 
 Legislature may exclusively 
 make laws in relat !o;i to educa- 
 tion, subject and according to 
 the following i)rovisions : — 
 
 (1). Nothing in any such law 
 shall prejudicially altect any 
 
 Manitoba Ac!T. Skc, 22. 
 
 In and for the [)rovince the 
 said legislature may exclusively 
 make laws in relation to educa- 
 tion, subject and according to 
 the following provisions : — 
 
 (1). Nothing in any such law 
 shall prejudicially afiect any 
 
 r.'.*it^&£;.;*.:^*^'ia.aj*.- s 
 
 ^.■»ms->if:-i.--i'p.^-:3\-ij6k\i.^s^-:- 
 
 'i.y):^■S.'Kl?^Z^i■'^S^'^:.■i■4f^-y'■->Zn*tKS^^■:S,::^^ 
 
•s 
 
 'Hie Lt(jal ovd CondUKflondl A>^/m:(s 
 
 ri^jlit <»r piivilfj^o with rcMjM'ct 
 
 to llcl!n||li!!!lti<'!i;il HcIkhiIs wllicll 
 
 any cIjiss ot jhmxiiih liavo Ity luw 
 in tli«j province ut tin; union. 
 / {:\). VVhure in any piovinco a 
 Hystuiu of 80[)iiriit»M»r(li8Huntient 
 HchttolM Dxi.stH by luw !lt tlio 
 miion, (tr is tluMcat'lur cHtab- 
 lirtnod l»y (liu li'^islatuii! of tlio 
 |(io\inci\ an api»c;al sliall liis to 
 till! (iovonior (Juneral in Conn- 
 from any act or tlocision of any 
 provincialautliorityatloctinj^'any 
 rij^lit or privi.,go of tho l'r(»to8- 
 tantor IJouian Catholic minority 
 of tho (Jineen'.s subjects in rela- 
 tion to education. 
 
 (4). Tn case any such provin- 
 cial law as from time to tinio 
 seoniB to th'j Oovernor-Gonoral 
 in Council ronuiaite for tho duo 
 execution of the provisions of 
 this section is not made, or in 
 case any docisicm of the (Jovern- 
 or-Gcneral in Co\uicil on any 
 appeal under this section is not 
 duly executed by tho proper 
 l)r(n'incial authority in that bo- 
 half, then and in every such case, 
 and as far only as the circuui- 
 stancos of each case require, 
 tho Parliament of Canada may 
 make remedial laws for the due 
 exeaition of the provisions of 
 this section and of any decision 
 of the Governor-General in 
 Council under this section. 
 
 The political condition of 
 
 rij^'lit or privileu;e willi irspfct 
 to (htnoiiiinational schooj.s which 
 any class of pcrHons have by law 
 or pratitice in tho province at the 
 union. 
 
 (2). An appeal shall lio to the 
 (iovernor-Goneral in Council 
 fr<»m any Act or decision of the 
 le^'isliiture of the [trovinco, or of 
 any provincial authority, atl'ect- 
 ing any ri^^ht or piivile^e of the 
 I'rotostant or Roman Catholic 
 minority of the Queen's subjects 
 in relation to education. 
 
 (15). In case any such provin- 
 cial hiw as from time to time 
 seems to tho Governor-General 
 in Council re»|uisite for the duo 
 execution of the provisions of 
 this section is not made or in 
 case any decision of the(»overn- 
 or-(«cnoral in Council on any 
 appeal under this section is not 
 duly executed by tho proper 
 provincial authority in that be- 
 half, then and in every such 
 case, and as far (mly as the cir- 
 cumstances of each case re(|uiro, 
 the Parliament of Canada may 
 make remedial hiws for the due 
 execution of the provisions of 
 this section and of any decisi(jn 
 of tho Governor-General in 
 Council under this section. 
 
 the North- West Territories 
 
0/ the Manitoha School Quest Ion. 
 
 
 
 prior to tlio creation ol' tlie Province of 'ManitoltH in 1<S7() 
 need not be (leHcrilMMJ ; all are HuHicitintly familiar with 
 the Hul)ject. 
 
 The general pi'ovi.sion.s of tlui Confederation Aet of 
 1807 were, hy tlu; Manitoha Act, inadea})[)li('ahl(' to that 
 province. Ihit, as one of the provisions of see. f)H (suh- 
 8ec. 2, which I have omitted), reiatiss and refers particu- 
 larly to the educational conditions existinir in tlu? I'ro- 
 vinces of Ontario an«l Quc^hec ut the time; of C/onfcdcra- 
 tion, the terms of that s(!ction were not appropriate to 
 the new Province of Mjinitoba, 
 
 Hence, section 22 of the Manitoba Act was substituted 
 for section D.'i of the Confederation Act. 
 
 It will be observed that the l'hnif<Uion in relation to 
 denominational schools, and the yjrovmoii (jivlnf/ the 
 right of ((ppealioihe (lOvernor-Cjcneral in Council from 
 Provincial lej^islation afiectinf]f any right or priviN^ge of 
 tlie Protestant or Roman Catholic ndnority, in relation 
 to education, are embodied in section 22, in language al- 
 most identical with that used in section 9'^ of the Con- 
 federation Act. The; intention in both vVcts is no doubt 
 identical. 
 
 It will also be ol)servc(l that the language used in r3C- 
 tion 22 gives an appeal to the (lOvcn-nor-C^ciiei-al in Coun- 
 cil from any Provincial Act or decision aliecting any 
 right or privilege of the Protestant or Roman Catholic 
 minority in relation to education. 
 
 All that I liave said, therefore, with regard to the limi- 
 tations and restrictions on Provincial legislative powers 
 in relation to education, undet the (.onfcMleraticm Act 
 applies to the Manitoba Legislature, under the Manitoba 
 
 i)r4»pjgfrsai^iu^-4:^>.« ^^ 
 
 »^ H # -r , yt ii n-n ii ^-* -jtJ . ».4|i|»r^;iv-^*«'".*i'w ■"■*• 
 
 .■1 -*» ns ^aatui^-. 
 
i 
 
 , 
 
 I 
 
 10 
 
 The Legal and Constitutional Aspects 
 
 Act. Tts poweffe are not exclusive or absolute, but strict- 
 ly limited, and in some respects subordinate to the Do- 
 minion Parliament. 
 
 After the creation of the Province, the Provincial Le- 
 jrislature, by an Act passed in 1871, called the Manitoba 
 School Act, established a system of schools under the con- 
 trol of a Board of Education, one-half of whom were to 
 be Protestants, and the other half Catholics; the two 
 sections to meet separately'' ; the Pro ,estants to appoint a 
 Protestant Superintendent, the Catholics a Catholic Su- 
 perintendent ; each Board to select its oivn text hooks, re- 
 lating to morals and religio^n.. In the sections where the 
 Protestants predominated the schools were to be regarded 
 as Protestant schools, and where the Catholico predomi- 
 nated, Catholic schools. Thus, a doubb system of pub- 
 lic schools was, at the very beginning, created iij the Pro- 
 vince. 
 
 Acts amending this education law, in some respects, 
 were passed in su1jse(|uent years, but it is not necessary 
 to i:efer to them. The Manitoba Scliool Act of 1881 re- 
 pealed all prior acts, but it re-created and re-established 
 the double system of Piotestant and Roman Catholic 
 schools on the same general lines as the Act of 1871, 
 only that it made the distinction between the Protestant 
 and Roman Catholic schools more marked, hy providing 
 that each section of the Board of Education should se- 
 lect all hooks to be used in the schools under its control, 
 and gave a right to the minority, when sufficiently nu- 
 merous, to establish a separate school in any section 
 where the majority ali-eady possessed a school. 
 
 Bv virtue of this leifislation, Protestant and Roman 
 Catholic schools were created and built up in the pro- 
 
 o 
 
of the Manitohit School Question. 
 
 11 
 
 vince, and the right or privilege of Koman Catholics to 
 have and maintain schools under the direction and cont- 
 rol of their church, was not only permitted but lega- 
 lized. This educational condition continued in the pro- 
 vince from 1870 until 1890. The children of 1870 had 
 gi-own to maturity under its operation, and many had 
 themselves become parents of families. 
 
 In the meantime, by reason of the J-ifluK of innnigra- 
 tion, the popuhition had vastly increased. The great ma- 
 jority of the innnigrants being Protestants, an agitation 
 for the abolition of lloman Catholic separate or demoni- 
 national scliools was commenced and carried on for some 
 time. This agitation was finally given eifeet to by the 
 passage by tlie Manitoba Legislature in 1890, of two 
 Acts relating to education. One of these created a De- 
 partment of Education and an '' Advisory Board." The 
 Advisory Board was empowered to authorize text-books, 
 and to prescribe the form of " religious exercises to be 
 used in schools." The other Act, termed " The Public 
 Schools' Act," purported to establish a system of public 
 education entirely " non-sectarian," no religious exercises 
 being allowed, except those conducted according to the 
 regulations prescribed by the Advisory Board. 
 
 The effect of these acts was to do away with all separ- 
 ate and denominational schools as legal establishments, 
 and to create one public school system for the whole 
 province, under the control of a Minister and Depart- 
 ment of Education and of an Advisory Board. The 
 Roman Catholic minority were deprived of the legal right 
 of collecting taxes from their own people to suppo t their 
 separate schools, and were compelled to pay taxe .n sup- 
 port of the public schools created under the Act. Under 
 
12 
 
 TJte Legal and Constitutional Aspects 
 
 these circumstanccH, it became necessary for the minority 
 to consider what course they would adopt. Three courses 
 were open to them. 
 
 1st. Tliey could ask the Dominion Government to dis- 
 allow the Acts. 
 
 2nd. They could resist the operation of the Acts, and 
 thus test their validity in the courts, or, 
 
 3rd. They could appeal by petition to the Dominion 
 Government (the Governor-General in Council), under 
 the constitution of the province, for some remedial order. 
 
 It must have been apparent from the first that the 
 Dominion Government would not disallow the Acts in 
 question, as their operation and effects were entirely 
 local, and confined to the province, and did not interfere 
 with or trench upon the rights or powers of the Federal 
 Government. 
 
 If they were to adopt the third course, and appeal to 
 the Dominion (lovernment for a remedial order — what 
 would the Dominion Government say ? Naturally, they 
 would say to the applicants — " The Acts you are appeal- 
 ing against may be ultra vires and void ; we are not a 
 tribunal constituted to determine such questions — that 
 is the province of the courts. If the courts hold that the 
 Acts are of no validity, you are not affected by them. 
 They are only so much waste paper ; the previous law is 
 not repealed, and you have no grievance. If, on the other 
 hand, the courts hold the Acts to be valid and constitu- 
 tional, you can then come to us with your appeal, as pro- 
 vided in the Constitution of your province, and we will 
 then hear your petition, and will make such remedial 
 order as the facts and circumstances of the case and as 
 
of the, Maniioha School QuesfAoTi. 
 
 13 
 
 our powers and duties under the Constitution may re- 
 quire us to make." 
 
 Governed by these considerations, the agf^rieved min- 
 orioy determined to test the validity of the Acts com- 
 plained of in the courts. This could only be done by 
 questioning their constitutionality, and resisting their 
 operation on that ground. 
 
 The Public Schools Act of 1890, came into force on the 
 1st of May of that year. By virtue of its provisions, 
 By-laws were made by the municipal corporation of the 
 City of Winnipeg, under which a rate was to be levied 
 upon Protestant and Roman Catholic ratepayers alike 
 for public school purposes. 
 
 An application was thereupon made to the Court of 
 Queen's Bench of Manitoba, on behalf of one Barrett, to 
 quash these by-laws, on the ground that the Public 
 Schools Act of 1890 was ultra vires of the Provincial 
 Legislature, inasmuch as it prejudicially affected a right 
 or privilege, with respect to denominational schools, 
 which the Roman Catholics had by law or practice in 
 the province at the union. The Court of Queen's Bench 
 refused the application, being of opinion that the Act in 
 question was intra vires, and, therefore, constitutional and 
 valid. This decision was reversed by the Supreme Court 
 of Canada, and an appeal was taken to the Judicial Com- 
 mittee of the Imperial Privy Council — the court of final 
 resort on colonial question for the whole British Empire 
 — where the judgment of the Supreme Court of Canada 
 was reversed, and the judgment of the Manitoba Court 
 of Queen's Bench restored. Thus the validity of the 
 Manitoba School Acts of 1890 was finally established. 
 Tiie highest tribunal in the ejiipire had declared them to 
 
14 
 
 The Legal and Constitutional Af^pects 
 
 be intra vires and valid. These Acts wore now indis- 
 putably part of the law of the province, and must be 
 obeyed The test case above referi'ed to is Barrett vs. 
 The City of Winnipe^^ reported in \o\. 19 of the Cana- 
 dian Supreme Court Reports, and in Vol. 1 of the Privy 
 Council appeal cases for 1892. 
 
 The Roman Catholic minority had, therefore, most un- 
 deniably a ^a-ievance. The educational rights and privi- 
 leges which they had legally acquired, and which had 
 been exercised by them for nearly twenty years, had been 
 taken away. 
 
 At great expense, they had established these facts. 
 One would naturally have supposed that nothing now 
 stood in the way of their appealing to the Governor- 
 General in Council. It was the only legal recourse left 
 to them. Conse(|uently, they decided to appeal, and in 
 November, 1892, presented their petition to the Dominion 
 Government, praying for relief. 
 
 Sir John Thompson, the then Premier, with the wisdom 
 and solidity of judgment, so characteristic of his polit- 
 ical career, and with the judicial thoroughness and states- 
 manlike prudence which so admirably adapted him for 
 the responsible office which he filled, knowing that the 
 appeal would necessarily result in an interference by the 
 Dominion Government or Dominion Parliament with 
 legislation, which had been deliberately adopted by the 
 Manitoba Legislature, knowing, too, that doubts were en- 
 tertained and objections would be raised as to the right 
 and power of the Dominion Government to interfere in 
 the matter, and that prejudices and passions wjuld be 
 stirred up by fanatical, bigoted or unscrupulous agi- 
 tators, if tlie appeal were entertained before all doubtful 
 
of the Manitoba School Question. 
 
 15 
 
 and difficult questions had been fully discussed, carefully 
 considered, and finally settled, — determined to submit 
 every question involved in the controversy, aii'ectin^ the 
 right and duty of the Government to entertain the appeal 
 in question, to the courts for determination. With this 
 object in view, six questions, covering every possible 
 doubt ai)d difficulty which the most astute mind could 
 suggest, were carefully prepared, and these questions, 
 along with the complainant's petition, the material veri- 
 fying it, and the statutes bearing upon the matter, were 
 submitted to the Supreme Court of Canada for its con- 
 sideration ; the future action of the Government to be 
 governed by the decision. Mr. Ewart, Q.C., ably repres- 
 ente<l the petitioners and supported their right of appeal. 
 Mr. Christopher Robinson, Q.C., opposed the petition, 
 contending that by reason of the decision in Barrett vs. 
 Winnipeg, and under the circums^'ances of the case, no 
 right of appeal to the Dominion Government existed ; 
 that the petitioners had no grievances, the Manitoba 
 Legislature having a right to repeal the educational legis- 
 lation which it had previously enacted ; that every legis- 
 lative enactment is subject to repeal by the same body 
 which enacts it. This last was one of the principal 
 points discussed by the respective counsel, and by Chief 
 Justice Strong, in his judgment delivered 20th February, 
 1894. The Chief Justice, and Justices Gwynne and 
 Taschereau, decided against the petitioners, and Justices 
 Fournier and King in their favor. From this decision 
 of the Supreme Court of Canada, the case was taken to 
 the Judicial Committee of the Imperial Privy Council. 
 On the hearing of the case before that tribunal, the Hon. 
 Edward Blake supported the petition in a most elaborate 
 and masterly argument, occupying two days, assisted by 
 
16 The Legal and Constitutional Aspects 
 
 Mr. Ewarfc. Mr. Cozens Hardy and Mr. Haldane, two of 
 the most eminent members -of* the English Bar, opposed 
 the appeal. 
 
 The arguments were concluded on the 18th December, 
 1894. Judgment was reserved. 
 
 On the 29th of January, 1895, the Judicial Committee 
 delivered a most carefully considered and exhaustive 
 judgment, dealing with every conceivable point involved 
 in the controversy, unanimously sustaining the conten- 
 tions made on behalf of the Roman Catholic minority, 
 establishing their right of appeal to the Dominion Gov- 
 ernment for such remedial order as would meet the 
 grievances of which they complained, and indicating the 
 duty of the Government in reference to such appeal. 
 This case entitled Broph3/ and Others vs. the Attorney- 
 General of Manitoba, will be found reported in Vol. 1 of 
 the Privy Council Appeal Cases for 1895, page 202. 
 
 All difficulties being now settled and every obstacle re- 
 moved out of the way, fortified by this final decision of 
 the tribunal of last resort, Mr. Ewart again presented the 
 petition of the Roman Catholic minority to the Federal 
 Government, which was argued from the 4th to the 7th 
 of March, 1895, inclusive, by Mr. Ewart on behalf of the 
 petitioners, and by Mr. D'Alton McCarthy, who was re- 
 tained by the Manitoba Government to oppose the Peti- 
 tion and Appeal. 
 
 Before pursuing the narrative further, it will be neces- 
 sary to pause and consider the last clause embodied in 
 Section 93 of the Confederation Act, and in Section 22 of 
 the Manitoba Act. The language of this clause is exactly 
 the same in both sections. 
 
 It deals with the powers and duties of the Dominion 
 
 1 
 1 
 
of the Manitoba School Question. 
 
 17 
 
 Government and of tlie Dominion Parliament, when such 
 an appeal as this is presented. 
 
 The clause contemplates the arisinf^ of grievances from 
 two different sources, the " Provincial Legislatures " being 
 one of the sources, and some " Provincial authority" being 
 the other source. Where the thing complained of is a 
 Provincial law, it empowers the Governor-General-in- 
 Council to direct or request the Provincial Legislature to 
 pass a law remedying the grievance; and where the thing 
 complained of is the Act or decision of some " Provincial 
 authority" it empowers the Governor-CJeneral-in-Council 
 to direct or ret^uest that provincial authority to do some- 
 thing or to refrain from doing something, so as to remedy 
 the grievance. In either case, the action of the Domin- 
 ion Government must take the form of a remedial decis- 
 ion and request to the Provincial Legislature, or to the 
 proper provincial autliority. I do not say that the Dom- 
 inion Goyernment is obliged to give a remedial decision, 
 and to make a remedial order in every case presented. 
 No doubt the Government may refuse the appeal, and 
 may decide against the appellants, Just as any court may 
 decide against appellants and refuse an appeal. But, 
 just as it would be a monstrous thing for a court to re- 
 fuse, or to dismiss an appeal where the appellant's case is 
 clearly made out, so it would be an ini(]uitous thing for 
 the Government to refuse an appeal of this kind where 
 the appellants have made out a clear case entitling them 
 to relief. There is this distinction between the position 
 and powers of the government, under this part of the 
 constitution, and the powers of an ordinary court. A 
 court can enforce its judgments ; the Dominion Govern- 
 ment cannot enforce its decision. That power it does not 
 
18 Ihe Legal and Constitutional Aspects 
 
 possess. The decision must have been passed upon hy 
 the parliament, and confirmed by, and embodied in, 
 Dominion lec,nshition, before the Federal Executive or the 
 Courts can enforce it. 
 
 But the courts will enforce the law passed by the Dom- 
 inion Parliament, just as they enforce any other law of 
 the land. 
 
 The clause provides that in case the remedial decision 
 or order is not obeyed by the Provincial Legislature or 
 by the proper Provincial authority, the Parliament of 
 Canada, may, as far as the circumstances of each case 
 may require, make remedial laws for the due execution of 
 the provisions of the section, to the extent of the remedies 
 provided in the remedial decision, which has been dis- 
 obeyed or ignored by the Provincial Legislature or Pro- 
 vincial authority, but only so far as may be necessary 
 for the due execution of the provisions of the section. 
 The Federal Government were placed in this position,— 
 the validity of the acts complained of had been established 
 The effects of these acts upon the Roman Catholic minor- 
 ity had also been established. The right of the complain- 
 ing minority to petition for relief had been determined in 
 their favor. The provisions of the Constitution requir- 
 ing the Governor-General-in-Council to hear the appeal, 
 under the circumstances, were, therefore, clear and indis- 
 putable. 
 
 What was to be the attitude of the Canadian Privy 
 Council under these circumstances ? What were its duties 
 and functions ? These are the important questions raised 
 on the argument, more important than the appeal itself. 
 Mr. McCarthy contended that the Council was not in any 
 sense a court, — that its functions were not judical ; he 
 
 'I 
 
of the Manitoba School Question. 
 
 19 
 
 says : " My object in to show that you cannot be act- 
 in^r judicially. It is upon political considerations the mat- 
 ter must be determined. I an\ not going to say there is 
 not a grievance, I am precluded from that by the judg- 
 ment. I hope^to show that you are to deal with it as a 
 matter of policy. My argument is that they cannot re- 
 establish seperate schools unless they are convinced that 
 the separate school system is preferable to the public 
 school system." These (juotations are sufficient to indi- 
 cate the line of argument pursued. But I think a fair 
 and unbiased consideration of the law will lead to the 
 conclusion that these arguments are incorrect. In the 
 words of the constituting statute, the Governor- General- 
 in-Council may, in case of an appeal against provincial 
 school legislation, advise or request the Provincial Legis- 
 lature to pass any such law as may seem requisite for 
 the due execution of the section relating to education. 
 
 The Council had three things to consider and deter- 
 mine, viz.: (1). The right or privilege claimed, its nature 
 and extent. (2). The interference, its nature and extent. 
 (3). The remedy to be applied, its nature and extent. 
 
 The remedial decision must be such as shall seem neces- 
 sary and appropriate to meet the circumstances of the 
 case. 
 
 These functions are clearly and indisputably judicial 
 functions. There is nothing in the statute indicating or 
 suggesting that party or political considerations are to 
 have any weight or influence with the Council, much less 
 to govern its action in the matter. It is appointed to 
 fulfil a constitutional duty. Like a court, it must hear 
 and decide upon the evidence, and upon the law applic- 
 able to the case. Like a court, it must render a decision 
 
20 
 
 The Lcjjal and (Jonslitutiunal Anpi'dn 
 
 on the law ami the evidence. The ilecinlun can unly take 
 the t'onn of a requcnt, but it is none the less a decision or 
 judgment. If the iVovincial Lef(islature chooses to 
 ignore the decision, and to disregard the re(|uest, the 
 Council cannot enforce it — that matter remains entirely 
 for I'aj'l lament. 
 
 Political considerations, no doubt, will influence the 
 action of Parliament, sliould it become necessary for 
 Parliament to deal with the matter. 
 
 If the Council were allowed to act upon politi(.*al or 
 party considerations, it would be freed from all constitu- 
 tional restraints, and from all considerations of justice 
 and ecpiity. Surely this could not have been the inten- 
 tion of the framcrs of the constitution. Clearly the con- 
 stitution intends that the Council shall assume a disin- 
 terested and judicial attitude in dealinf^ with appeals of 
 thi&^kind. 
 
 There is, therefore, no distinction between its duties and 
 functions, and those which devolve upon the ordinary 
 courts of justice. 
 
 The other view pressed upon the Government during 
 the argument was, that the members of the Council had 
 the right to act upon their own views and opinions of the 
 matter brought before them. If this view were correct., 
 what would be the result ? Protestants might petition 
 against Provincial Legislation, and contend that their 
 rights and privileges had been taken away or affected by 
 it. The members of the Council might be all Roman 
 Catholics. If allowed to act upon tlieir own individual 
 views and opinions, they might say to the petitioners, 
 " In our view, the abolition of the rights and privileges 
 claimed lias been beneficial to tlic Province, and to th() 
 
 M 
 
 •^'Sf 
 
of the AfanUifhd School QacMioii. 
 
 21 
 
 nation, the Provincial L(!^rislation coniplainoil ol" is right 
 and sahitary, we will, therefore, «leeline to j^n-ant any re- 
 (Ire.SH, we will refuse to make any remedial order." 
 
 Will any sane perHoti contend that this is the meatdn^ 
 and intention of the constitution i The members of the 
 (Jovernment are not made ju«l<;es of what education 
 should l)C i^iven to the people. Tluy are not made ju<lgeH 
 of what constitutes education. They have no ri<^dit to 
 say what reli<rioua education shall he taught. They 
 may think the religious (sducation claimed l)y the minor- 
 ity entii-ely wrong, and even pernicious, hut they have 
 no right to allow their own individual views to iidluence 
 their decision. 
 
 If it is established that the right or privilege claimed 
 legally existed, and that this right or privilege has been 
 atlected or taken away, or if it is established that the 
 legislation gives undue or improper jirivileges to the 
 minority, and the petitioners complain of this and estab- 
 lish their case, some remedial decision and order must be 
 made — and it nnist be apparent to every unprejudiced 
 mind that the decision and remedial order must be in the 
 direction of restoring to the complaining minority the 
 rights or privileges of which they have been deprived ; 
 or, in case the appeal is made on Ijehalf of the majority 
 — complaining that extraordinary or improper privileges 
 have been granted to the minority — then the remedial 
 decision and order must be in the direction of taking 
 away or reducing the eft'ect of these privileges within the 
 previous limits. The result is this — Provincial Legisla- 
 tures may grant separate educational privileges to any 
 sect or class of Protestants or Catholics ; and they may 
 repeal all sucli Acts, and nholisli thcprivileores so ^ranted, 
 
22 
 
 l^he Lvijal and Oonatifatlonal Aspcdfi 
 
 Imt the cln8s or Hecfc uffcctod will then have the right to 
 appeal to the (iovernor-General-in-Council, and on the 
 facts being established, the Council must inak( a reme- 
 dial decision of some nature, which, if diHoluiyed or ig- 
 nored by the I'rovincial authority, may be Icgishited upon 
 by the Dominion Parliament ; and the federal legislation 
 will be enforced by the eourti and by the I^Y'deral Ex- 
 ecutive. 
 
 'I'his is not a (piestion ol Provincial rights. It is a 
 question of MinoiUij rights. It is not a (piestion of the 
 coercion of a Fro\mce by the l^Y'deral authority. It is a 
 «|Uestion of the attem[)ted coercion of a weak Minor'itji 
 by the Legislature of a Province.— The rpieation to be 
 faced and grappled with is — may a Province disregard 
 the constitutional decision of the Governor-(jleneral-in- 
 Council ?— or must the Federal Parliament, — the miar- 
 dian of the Constitution — maintain and enforce its edu- 
 cational provisions ? — is the Federal compact meaningless 
 and valueless ? — Or must its terms be respected and 
 obeyed ? — Is the C-anadian Constitution a mere tliincr of 
 paper and ink ?~0r is it a frame-work of steel— within 
 which the political machinery of 'the Provinces and of 
 the Dominion must perform their designated functions ? 
 
 The tyranny of the majority over the minority, is one 
 of the things against which society needs protection. 
 
 John Smart Mill, whose writings, both in diction and 
 thought, will always be classics as long as English litera- 
 ture is read— in his essay on Liberty, has said—" Tliere 
 needs protection against the tyranny of the prevailing 
 opinion and feeling."—" There is a limit to the legitimate 
 interference of collective opinion with individual inde- 
 peiidcncc, to find that limit and uiaintaiu it against en- 
 
 I 
 
 I 
 
of the Mdnitoha School Quealion. 
 
 23 
 
 cronchrnont, is as indispensablo to a j^'ood condition of 
 human afrains, aa i)iotoction a<,oiinHt political (U-spotiHui." 
 " Mankind are ^a-catcr ^^ainorH by sufforinn- each other 
 to live aH Heeins ^^ood to theniNelvo.s, than by compelling 
 each to live as HeeinH good to the rest." 
 
 The lengthy and exhauHtive arguments of Mr. McCar- 
 tliyand Mr. K wart, before the (-anadian Privy Council, 
 have been publi.slR'd. With deference to all concerned, I 
 think that much of those arguments was entirely for- 
 eign to the real (juestions which the ( Vmncil had to deter- 
 mine. '1^1 ie various l^ills of Rights, for example, had no 
 Ix'aring on the (juestion. The Council could not go be- 
 hind the Statute, and the lengthy references to matters 
 anterior to the Statute, were therefore useless. 
 
 After the argument, the Privy Council on the 21st of 
 March, 1805, gave a decision, endjodying are<|uest, which 
 is the Remedial Order about vvliieh so mucli has been 
 said. This decision deterniined that the Minority had 
 been deprived of three classes of rights or privileges 
 which they had ac(|uired by virtue of Provincial Legis- 
 lation, passed subscipient to the Union, viz : 
 
 (1) The right to br'.id, maintain and manage separate 
 schools; (2) The right to share proportionately in any 
 grant for educational purposes ; and (3) The right of ex- 
 emption from contribution to the support of o^her schools. 
 
 And it, in* effect, recpiested the Manitoba Legislature to 
 supplement the educational legislation of 1890 by such 
 Act or Acts as might be necessary, to restore to the 
 Roman Catholic minority the said rights and privileges. 
 
 This Remedial Order was forwarded to the Manitoba 
 Legislature, on the 2ot}i March, l.SOS, and that Lemsla- 
 
 1 
 
24 
 
 The Legal and Const UvMonal Aspects 
 
 ture, after taking three months to consider the matter, 
 (but without having complied with the re(|uest contained 
 in the Order) returned an Answer — tlie terms of which 
 must be considered. 
 
 1. The Answer he^ins by admitting that "tlie privi- 
 leges the Legishiture is commanded to restore, are sub- 
 stantially tlie same as the Roman Catholics enjoyed pre- 
 vious to 1890," but it alleges tliat the Roman Catholic 
 "Schools " did not possess the attributes of efficient mod- 
 ern Public Schools ;" — " that their conduct, management, 
 and regulation were defective," — " that many people 
 gi'ew up in a state of illiteracy," and therefore, " that the 
 expenditure of public money in their support, could not 
 be justified." Now, we have no constitutional guide or 
 criterion, as to what should be the " attributes of efficient 
 modern Public Schools." What may be considered 
 " education," and what may be considered " illiteracy," 
 by any one class or sect, ma}^ not be so considered by an- 
 other class or sect. There is no " standard of education" 
 provided for in our Constitution, and the majority have 
 no legal right to impose what they may consider the 
 proper standard of education, en the minorit}^, or on any 
 class or sect. If the public money of a Province belongs 
 to the people of that Province, the minority are entitled 
 to the benefit o^' a proportionate part thereof. 
 
 2. " The Anglicans, the Mennonites, or the Icelanders, 
 may possibly demand separate schools,* if Roman Ca- 
 tholic schools are allowed to be established." Surely 
 this no answer. The withholding of separate schools 
 from Roman Catholics does not a^l'ect the rights of the 
 other classes, if they have any. If these classes are en- 
 titled under the Constitution to have se])arate schools, 
 
 • 
 
of the Manitoba Sc/iool Question. 
 
 25 
 
 
 they have the rif^ht to (.leniaml them, and their ri^rhts (if 
 any), cannot be forever refused oi' i«;nored. The incon- 
 veniences which niight result concern tlie sects them- 
 selves. 
 
 3. The alle,(Tation that tlie Governor-General-in-Coun- 
 cil did not possess " full and accurate information on the 
 sul)ject when the Remedial Order was made," taken in 
 connection with the fact that the litipition had been in 
 progress for nearly five years, that the (juestions involved 
 all arise out of Statutes of the Province, and that the 
 facts and law are fully discussed in all the arguments, 
 and set out in the reports of the legal proceedings, looks 
 like what lawyers call trilling or shuJiiing. The invitation 
 to enter upon further investigations is equivalent to say- 
 ing, " We have mailed to make out a defence, but irive us 
 another chance, and we will try again." 
 
 Although the legal difhculties suggested seem so fanci- 
 ful and unsubstantial as almost to provoke a smile, yet 
 they are the Answer of a Province. Let us therefore 
 consider them briefly seriatim. 
 
 1. " Dominion legislation will l)e irrevocable." Of 
 course, irrevocable by the Provincial legislature. But 
 if there is one principle more clearly established tlian 
 another, it is the right of parliament to rei)eal or amend 
 its own Acts. Need I afhrm that the sovereignty of par- 
 liament over its own legislation is a fundamental prin- 
 ciple of the British Constitution. The authorities, from 
 Sir Edward Coke to the present, unanimously support 
 this proposition. 
 
 The Imperial Statute which confirms the Manitoba 
 Act, only prohibits th-i Dominion Parliament from am- 
 ending or changing that particular Act, thus placing 
 
 I 
 
«"P 
 
 26 
 
 Tfic Legal and Constitutional Aspects 
 
 Manitoba on the sariic secure constitutional footing as 
 the other provinces. 
 
 2. " The power to collect taxes for educational pur- 
 poses may rest upon sub-section 2 of section 92 of the 
 B. N. A. Act, and may therefore be one of tlie exclusively 
 provincial powers, and the Dominion Parliament may, 
 therefore, be powerless to restore this privilege." Tliis 
 argument or objection was evidently inspired by the 
 maxim, " That a poor excuse, and therefore a poor objec- 
 tion, is better than none." 
 
 The Constitution gives the Dominion Parliament 
 power " to make remedial laws for the due execution of 
 the decision of the Governor-General-in-Council," and 
 therefore power to restore the privileges of which the 
 minority have been deprived. If it be true that the 
 greater includes the less, surely this language invests 
 parliament with all the re(juisite power to pass an Act 
 providing in every particular for the circumstances of the 
 case, and for effectually restoring every privilege which 
 the "Remedial order" declares has been taken awav. 
 
 If sub.-sec. 3 of sec. 22 of the Manitoba Act is con- 
 //'strul^ed, according to the ordinary rules applicable to 
 the construction of statutes ; or according to the plain 
 common-sense meaning of its language, only one inter- 
 pretation can be given to it, which is this, when the cir- 
 cumstances warranting Dominion interference, (mention- 
 ed in the section) arise, any law passed by the Parliament 
 of Canada within the limits of the Remedial order, must 
 supersede and override any Provincial law with which 
 it may conflict, otherwise tlie section is meaningless and 
 useless. 
 
of the Manitoba School Quest iov, 
 
 27 
 
 3. " No part of the public funds of the province could 
 be made available for the support of separate schools 
 without the consent of the Provincial Legislature." The 
 public funds of the province are not more absolutely un- 
 der the control of the Legislature of the Province than 
 education is under its control. 
 
 The public funds of the Province are composed of the 
 Dominion Subsidy and Provincial Fees and Taxes. The 
 inhabitants of the Province are supposed to have an equal 
 per capita interest in these funds. Each of the minority 
 is, therefore, interested in these funds to the same extent 
 as each of the majority. 
 
 The Roman Catholic separate schools, if reestablished 
 by Dominion legislation, could not be justly deprived of 
 a proportionate part of any Provincial educational grant. 
 The Dominion legislation would provide that the restored 
 schools shall receive their proper proportion of any such 
 grant, nnd such Dominion law would override any Pro- 
 vincial law to the contrary on the subject. 
 
 4. As a summing up of all the arguments, the " An- 
 swer" proceeds : " It would appear, therefore, that any 
 action of the Parliament of Canada, looking to the res- 
 toring of educational priviliges to the Roman Catholic 
 minority, must be supplemented by the voluntary action 
 of the Provincial Legislature." 
 
 For 'he reasons given, tiiis proposition cannot be con- 
 ceded. The Constitution and the Decisions are a(»-ainst 
 it, and tlie language of the last Judgment of the Privy 
 Council conclusively estabhshes the completeness of the 
 Fed 'ral authority. 
 
 This objection does not recpiire an argumentative re- 
 
 I 
 
. . ;BatM^^^^'**'"^>" ■^»^-.>^^-'-r>3f^ 
 
 1 i-^ »i»^j*y' fc- ^^ iM*isi«iaittiaiate^^ 
 
 '^ 
 
 2cS The Legal and Gov fifitvfi oval Ai^peets 
 
 futation, but a few words may make its nnteimblenesa 
 more ap])arent. 
 
 The provinces have exclusive jurisdiction over * pro- 
 perty and civil ri^dits." Tlie Dominion has jurisdiction 
 over " Bankruptcy and Insolvency." Ev^ery Insolvent 
 lav^^ deals with " pi-operty and civil rights," and conflicts 
 in several ways, with provincial laws, for example in the 
 discharge of debtors — but the insolvency laws do not 
 retjuire to be supplemented by Provincial laws to make 
 them effective, much less witfc a Dominion Educational 
 law, which the Parliament of Canada is expresslj^ em- 
 powered to enact, recjuire to be supplemented by Provin- 
 cial legislation to make it effective. 
 
 5. The fact, stated at the conclusion of the " Answer," 
 that the members of the present Legislature of Manitoba 
 were elected before the last Privy Council Decision, and 
 "had given pledges to their constituents" (to support the 
 School Acts of bSDO), " which they feel in honor bound loy- 
 ally to fulfil," iH the only olViection in the " Answer" de- 
 manding serious consideration. This may l)e a valid rea- 
 son against any hasty action Ijcing taken by the l3omin- 
 ion Parliament, and is of itself (juite sufficient excuse for 
 the delay by Parliament to legislate upon the (piestion 
 for a reasojiaf)le time to allow the members ^f the Legis- 
 lature to confer with their Constituents, or a dissolution 
 and new election to take place. 
 
 Such is a brief consideration of the statutes, the pro- 
 ceedings, the litigation, and the facts, bearing upon the 
 legal and constitutional .aspects of the Manitoba School 
 Question. 
 
 With regard to the duties of tl\e state in relation to 
 education, some contend that education should be com- 
 
of the Manitoha School Questio^n. 
 
 21) 
 
 pulaory ; otliers, that it Rhonld bo voluntary. Some de- 
 mand a liitrli standard ; others, that a knowledge of read- 
 in^r, writing, and arithmetic, is all that Government 
 should provide or enforce. But the feeling is gaining 
 ground with all classes and sects, that only those branches 
 of useful knowledge, respecting which there are no rea- 
 sonable differences of opinion, should be taught in the 
 public schools which are under the control of the state, 
 and which are supported to any extent by public money. 
 
 The value of religious teaching in schools, is a disputed 
 question. The majority, however, still think that school 
 education should, to some extent, embrace religious edu- 
 cation. And the very wide differences between Protes- 
 tants and Roman Catholics, as to what constitutes "re- 
 ligious education," had to be provided for, and gave rise 
 to the special provisions in our constitution, in relation 
 to it. Tliese provisions may be right or wrong, wise or 
 unwise. But they are there — they are the law — and the 
 law must be obeyed. The machinery for settling all 
 these disi)utes and differences, is (|uite adequate to meet 
 every emergency. If wisely applied, it will adjust all 
 dilficulties in a fair and satisfactory manner. Thei-e 
 sliould be no prejudices stirred up; no excitement, no 
 fanaticism. This is a free constitutionally governed 
 country. People should agree to differ. Each class 
 should respect tlie opinions and religious beliefs of others. 
 Changes can only be brought about with the consent of 
 the governed. The attempted coercion of minorities, is 
 worse than useless. Tiiere must be complete freedom 
 and the widest possi})le tolei-ation. The unreasonable 
 prejudices, and hatred of any class towards the religion 
 or language of any other class, should be discouraged and 
 
30 The Ls(jal and Constitutional Aspects 
 
 discountenanced. Canada is now, and is evidently des- 
 tined to continue, a nation of two languages at least. A 
 nation with two such literatures as the French literature 
 and the English Literature, is far richer, intellectually, 
 than a nation with only the literature of one language. 
 The suppression or loss of cither the English language, or 
 the French language, would be a calamity to civilization. 
 It would be an advantage to the whole people, if both 
 languages, were taught in all our public schools. 
 
 My observations have been brief and condensed, but I 
 conclude by hoping that what I have said may help 
 somewhat to elucidate the questions under consideration, 
 and to allay unreasonable prejudices and passions. 
 
 > 
 
 »>- 
 
 ^^x^.S^(r^)-~j> 
 
 ■<•