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 i 
 
 New Brunswick School Act. 
 
 
 The Argument before the Privy Counoil of Great Britain. 
 
 In thi Judicial Committee op the Privy Council, July 17, 1874. 
 
 PRESENT: 
 
 Bight Honorable Sib J. W. Coltillb, Right Honorable Lord Jutnos Jambb, 
 
 Bight Honorable Lord Jcancit Mbllisu. Right Honorable Sir Montaovi Smith, 
 
 Right Honorable Sir Kobbrt P. Colubr. 
 
 e ii '/aMAHER VS. THE TOWN COUNCIL OF THE TOWN OF PORTLAND. 
 
 I 
 
 Mr. Joseph Brown, Q. C, and Mr. Duff; Q. C, (of the New Brunswick Bar,) appeared aa 
 Counsel for the Appellant, instructed by Messrs. Linklater & Co. 
 
 8b J. B. Karslake, Q, C, Mr. King, Q. L\, (the Attorney-General of New Brunswick,) 
 and Mr. Cowie, Q. C, appeared as Counsel for the Respondents, instructed by Messrs. 
 Biroham Jk Co. 
 
 Mb. Bbowx. — May it please your Lordships in this c«se, I appear for the AppeUant, 
 and I will give your Lordships as short an outline of the case as I can. The Appellant 
 is a rate vtgfet of the Town of Portland, in tlie City and County of St John, in the Pro- 
 vince of New Brunswick, an<l was rated and aH8esse<I for the year 1872, in the sum of 
 $57.83 for school purposes, under an Act of tlie Legislature of New Brunswick, called 
 "The Common Schools Act, 1871,'' 34 Victoria, cJiapter 21, and a subsequent Act amend- 
 ing the same. Tlie assessment was made by the Assessors of Taxes for the Town of 
 P<vtland, in the said City and County in pursuance of a Warrand on Notification under 
 the seal of the said town to levy and assers upon the said town and its inhabitants the 
 sum of $12,428 for the several purposes mentioned in the 9th sub-section of the 58th 
 section of tne said Act of 1 87 1. Tliis Warrant was issued by the Town (Jouncil in pur- 
 suance of a requisition of the Board of School Trustees of the said Town appointed and 
 acting under the provisions of the said Acts. Tlic order of the Town Council directing 
 the warrant to be issued is then set out. It is : " Whereas it appears from the requisi- 
 tion of the Board of School Trustees of the Town of Portland, that the sum of $12,428 is 
 required for the purpose of the "Common Schools Act 1871" in the present year, of 
 which $300 is required for the repairs and alterations of Schools. — Therefore resolved 
 and ordered that there be raised, levied and assessed upon the Town of Portland, and 
 the inhabitants thereof in the present year, the said sum of $12,428 by a special assess- 
 ment for the several purposes mentioned in the 9th sub-section of the 58th section of 
 the said Act, passed in the 34th year of Her present Majesty, intituled " An Act relating 
 to Common Schools" and under the provision of said Act, and that warrant dc issue 
 under the seal of the Town to the Assessors of Taxes for the Town of Portland to levy 
 and assess the said sum of $12,428, fur the purposes aI>ove mentioned as a separate 
 amount. The appellant conceiving himself to be aggrieved by the said assessment, made 
 upon him in pursuance of the said Warrant on Notification which has issued in pursu- 
 ance of the said order made upon the said requisit;3n, applied to the Supreme Ck>urt of 
 the Provine for rule nisi calling upon the sai(I Town Council of Portlanu to show cause 
 why a writ of certiorari should not issue to them to bring into the said Court the said 
 order witii a view of its l>eing quashed. The rule was moved upon affidavits set forth, 
 pages 5 and 6 of the Record, and upon the ground tliat the Common Schools Act 1871, 
 m which the whole proceedings, including the said order, were founded, was void as 
 having been passed in contravention of, ^lu also being repugnant to the Act of the Im- 
 perial Parliament intituled, "The British North America Act 1807," 30th Victoria, 
 chapter 3." 
 
 Ix>no Jitsticb Jaueb. — Is not that the whole point ? 
 
 Mb. Bbowk. — ^The whole point is whether or no the Act of the Province of New 
 Braiuwick called the Common Schools Act of 1871 is void at: being unoonstitntional. 
 Your Lordships may remember this British North American Act of 1867 is the Act 
 by whioh the Provinces of Upper and Lower Canada, and New Brunswiuk, and Nora 
 
 !' 
 
Stetia WW united in th» Doini- ^un of Canada, hnving a Dominion Parliatnaat aad 
 MparaU Legislatures of their own. The 93rd Section of that act provided '< in Mok 
 PlK>^ ince the Leglalature may exclusively uinke laws in relation to eduoation, subiJAOt 
 and aocorclins to the following proviaions : ' Nothing in anv such law sliall prf(judi<MUj 
 affect any right o:* privilege with respect to denoininatioual Schools which aajr olaas of 
 p/ersons have by law in the Province at the Union. We may paits over tite other sub- 
 sections. " It WAS contended bv the Appellant timt the rights and privileges of tha 
 Roman Catholic inhabitants of the Province of whom the Appellant was one, as a oUtM 
 ofperiKms, hail been prejudicially affected h? the «:iid 'Common Schools Act, 1871/ con- 
 trary to the provisions of sub-section 1 of tlie V3 section of tiie ' British Nortii Amarioan 
 Act, 1867,' aoove extracted. The motion was supporttKl by the affldaTita of the Appel- 
 lant and of two Roman Catholic gentlemen, one a priest, the last two deposing to tha 
 affect that prrtviously to end up to the passing of the said Act of 1871, and after tha 
 paMing of an act of the Province called ' An Act relating to Parish Schools,' pasaed in 
 the 2Ist year of Her Mi^estv's reign, they liad taught in schools under the fas ; men- 
 tioned Act, with the lcnowIe<lge and consent of the Inspector of Schools, to Roman 
 Catholic pupils the Roman Catholic catechism nnd other Roman Catholic books, includ- 
 ing the books published by the Christian Brothers, and other books used in the Roman 
 Catholic Schoola of Quebec and named in the said atfidavitst : that in the said Schools 
 ' the special doctrines of the Roman Catholic religion wore taught, and Roman Catholic 
 prayers used ; that these schools were imdur (iovernmtMit inspection under < The Parish 
 Schools Aot, 1858;' that tiie annual returns thereof stated that the books mentioned 
 in the affidavits were used in the school and the religion of the teachers ; that after the 
 making of the said returns they received the semi-annual allowancox from public funds, 
 made under the said Parish School Act. One of the Deponents testified to his personal 
 knowle<lge of the existence of 25 or 30 Roman Catholic Schools such as that taught by 
 himself, and, to his information and belief, that there were m tho Province 250 s<d)oofs 
 of that description, all of which were established nnd were rec- iving provincial allow- 
 ance under the said ' Parish Schools Aot, 1858, when 'The Common Schools Act, 1871' 
 was passed. It was contended that liberty of teaching sectarian or denominational 
 doctrine to the pupils and of using sectarian and denominational books and prayers in 
 the Roman Catholic Schools, which, by the said affidavits, was proved to liave been en- 
 joyed by the teachers in Roman Catholic Schools within the Pi-ovince, consistently and 
 concurrently with their receipt of allowance from public funds, lias, in the case of 
 Roman Catholic Schools, been seriously impaired and interfered with. Among other 
 matters, it wiis contended tliat sub section 12 of section 58 of 'The Common Schools 
 Act, 1871' prohibited, in effect, the grant of public aid t<:> any ' itt Schools conducted 
 under the provisions of that Act ; and that, by section 60, it was . jcpressly enacted that 
 all Schools conducted under the provisions of that Aot should be non-sectarian. 'The 
 result of this legislation, therefore, was to withdraw from such Roman Catholic Schools 
 — or from such Schools in which Roman Catholii' dootrines were distinctively taught, 
 and which were, therefore, sectarian and denominational in their character — the en- 
 joyment of aid from public funds, a right, or privilege, which, it was contended the 
 amdavits proved to have been at the pa.ssing of the said Act of 1871, ei\joyed by that 
 large class of persons — the Roman Catholics of the Province — and which ' right' or ' pri- 
 vilege,' therefore, ' with respect to denominational Schools,* was, by the operation of 
 ♦Tht Common Schools Act, 1871, -prejudicially affected,' ctmtrary to the provisions of 
 the raid ' British North .\merican Act, 1867,' sections 2 and 3 anu sections 93, sub-sec- 
 tion 1. It was contende<I. moreover, tliat 'The Parish Schools Act, 1858, which was 
 repealed by the said Common Schools Act of 1871,' was, in many respects, especially in 
 section 8, more favorable to denom. national schools, such as Roman Catholic Schools, 
 than the Act of 1871. The Supreme Court refused tiie Rule nisi, holding that 'Tha 
 Common Schools Act, 1871' nUs constitutional and valid, and that it was not repugnant 
 as was argued, to the provisions of 'The British North American .\ct 1867.' Leave, 
 however, was granted to the .\pp<?llant to appeal to the Privy Council. The Town of 
 Portland, the Respondents in this appeal, being summoned to settle the terms of the 
 appeal, which summons they attended. The .\ppollant contends that the judgment 
 of the said Supreme Court should be reversed The first point taken on the other side 
 is a preliminary one. They say that although the Supreme Court has granted us leave 
 to appeal it ha(^l no ])ower to do so, the amount being under the amount mentioned in 
 the orders of this Council, and that we ought to have obtained special leave from your 
 Lordships. I do not know whether that is seriously to be insisted on now. Your Lord- 
 ships see the enormous importance of the case. 
 
 ^Ca. Cowis.- -It is considered so desirable by the Town of Portland that the general 
 iiuestion should be heard by yoar Ix)nlships, that I shall not insist on any technical 
 point, I thought it right to raise the point, but I do not mean to insist upon it, 
 
 LoKD JcsTicE Jamb4. — Tliat is quite right. This Court would give special leave. 
 
 ^R. BaowN. — It raises a great constitution.il que^ttion whether wo are right or wrong. 
 The question may be introduced in this way. 
 
 LoiD Jravwi MltLMB.— It is 8 i^uattlon whether wa ought not to make an ordar now, 
 
6lL J. W. CoLViLUc. — Tbtire waa a ciiae the other day where we made • apeoial ordar, 
 bat we Uid down the principle that when these objeotione, which ought to b« takMi 
 lone beforv the cose is called on. are inade before lu that we (hall refuse the party who 
 took the exception costs. 
 
 8ni M. SMim. — However., Mr. Cbwie does not now raltie it. 
 
 Mr. Cowib. — No I do not. 
 
 StR J. W. C'oLTiLLE. — He merely places it on the RecoKi. 
 
 Mr. Bhuw.n. I could huve shown that the question involved 12,U00 doUA. 
 
 Lord Jcbtiog Mkllish. — Is the whole rate beyond the appealable amount. 
 
 Mr. Brows. — Far beyond It. 
 
 Lord JrsncB Mellisb. — The objection goes to the whole rate. 
 
 Mr. Brown. — Yc«. It exceeils 12,000 dollars, but I do not think there b anvthiug in 
 it. t may introiluce the Question by reminding your Lordships that in 1807 tnere was 
 an Act of the Imperial FHrliaiivent for the union of Canada, Nova Scotia, New Brunswick 
 and the (iovemnient tliei-eof. iliat Act. as your IxirdnhipA may remember, united all 
 the four Provinces, the two IVovinoes of Cpper and Lower Canada, New Brunswick and 
 Nova Scotia, into one Dominion, under the name of Canmln, and it divided them at the 
 same time uito four Provinces, (.hitorio, Quebec, Nova Scotia and New Brunswick. 
 
 Lord JrsncB Jawk8. — It created a Federal union, leaving the old Iiegislnture in posses- 
 sion of certain of their powers. 
 
 Mr. Brown. — Yes. I may just state that division of tliat .\ct of Fariianu-nt is liciuleii 
 " Distribution of Legislative Powei-s," ond section V\ gives a long enumoration of the 
 powers which ore tooelong to the Parliament of Canada, that is. the Federal Parliament. 
 Hiere Is an enumeration of 2y different subjects which are to l»elong to them. I neetl 
 not go through them, they include a variety of very important matters, but it will be 
 enough for the argument to state tlint section 91 enumerates at length th« powers wbieb 
 are to belong to the Parliament of Canada, which is the Federal Parliame. . 
 
 Lord .TrsxicE Melmsh. — They have not power respecting education in the Province 
 except under the 29th. 
 
 Mr. Brown. — That is so. 
 
 Lord .Ti-stick Mei.li.sh. — Wliat I rather want to know is whether neither the Imperial 
 nor the Local liOgislature couhl infringe against this 1st sub section of the Mi-d section, 
 or whether the General Parliament might have done it. 
 
 Mb. Brown. — I am not quite sure how tlint is, y«'i Mon 92 doaU with the exclusive 
 powers of the Provincial Legislature and exacts that in each Province the Legislature 
 con make laws exclusively coming within the class of subjects next hereinafter enumer- 
 ated, then it enumerates 16 general subjects which I neofi not rea<l. Then comes a 
 clause headed ''wlucaticn" and that is the c'.nuse with which yeur lordships have to 
 deal. That matter of education has not be^n provide<l f<»r in any of the previous sec- 
 tions; apparently section 93 is this, — " In each Province the Legislature may exclusive- 
 ly." I do not know exactly what that means unlc9.'< it means exclusively of the Domi- 
 nion Parliament. 
 
 Lord Jhsticb Mei.u.sm. — It is exclusively of the general I^cgmlature. 
 
 Mb. Brown. — Probably so — " May exclusively mako laws in relation to education sab- 
 jeot and according to the following pi-ovisions." The first is the most important one. 
 ".Nothing in any such law shall prejudicially affect any right or privilege with respect 
 to denominational schools which anv class of persons have by law in the Province at the 
 Union." Your Ijordships know these Provinces are inhabited by pei-sons of different 
 faiths, and the Imperial Parliament hod considerable difficulty in dealing with this sub- 
 ject, when the Earl of Carnarvon introduced this Bill into the House of Lortls. 
 
 Lord Justice James. — You do not suppose that wc shall be influenced in construing 
 the section by any thing that the Earl of Carnarvon said, and it is no use our having any 
 history whicli is not to effect us. 
 
 Mr. Brown. — Just as your Ix>rdship pleases. 
 
 Sir M. Smith. — ^The way in which the Public Worahip Bill was intrwluced led one to 
 tliink that it was a different Bill from what it tu-.ns out to be. 
 
 Mr. Brown. — No doubt that is so. There are <\vo question which arise in this case, the 
 iirst question will be what is meant by Denominational Schools, and I think the second 
 question will be has the Common Schools Act of 1 87 1 , of which we complain and under 
 which this order of taxation was made, prejudicially affected any right or privilege in 
 the respect to Denominational Schools which the Roman Catholics had by Law in the 
 Province at the time of the Union. 
 
 Lord Jcstico Mellish. — And then whethet' that makes the rate bad. 
 
 Mr. Brown. — I do not think there will be much difficulty about that. 
 
 Lord Justice Mellish. — It you mean it was beyond their power to pass an act creating 
 Common Schools and saying there should be i\ rate for them, that is i.ot beyond their 
 power. The rate is good I should think. 
 
 Mr. Brown. — I think the rate being mode for the support of Schools. If I auoo««d 
 ^ MtftbUibiog that it i* a rate made alike on Roman Catholics and Protestaots, 
 
LoBft Jroruni Mbixwh — Do you meau to mt they could not pM* ro Act of P»rUAiA«it 
 T— Mug Common Schools Mid making a rate 7 If they have interfered with vour ^Mohoob 
 M muoB na interfere! with Denominational HchooU and n^diing a rate will be perfeotljr 
 good. 
 
 Mb. BftowM. — It will be found when weoome to the proviaions of the Act of Paiiiament 
 thai we are deprived of the applioation of any portion of the funds raised under the 
 Aot to Denominational Schools, which was the privilege wc ei\joyed at the time the 
 Aot of Union paased. 
 
 Lofto Jotnca Jamu. — Have you any legal vested right in them Y 
 
 "Mm. Baowir. — I say the right is saved to us. 
 
 LoBO JvanoB Jauu. — What right was there existing at ^'^e time? Wliat was there, 
 if thk Aot bad not passed, to give you a vested right ? 
 
 Mr. Bbowv.— We say it was given by the ParLb Hohools Act, which was before the 
 Unioa. 
 
 8m M. Smitb. — You are going to shew that ? 
 
 Mb. Bbowm.— Certainly. 
 
 LnBO JumoB Mbllisb. — llien you say by tlie Pakish 8chuoU Act they could give funds 
 to the DoDominational Schools. 
 
 Mb. Bbown. — Certainly ; and they did so. a« 1 shad shew by tbo affidavits. We are 
 deprived of that right bv the Act, and in addition to that we are compelled by the pre- 
 sent Aot 1 represent the Koman Catholics in this case, and the Roman Catholics say. 
 they are compelled to pay taxation for the support of sonools where they are prohibited 
 from I^Ting tnat religious instruction to theu* children which they hotl u right to do 
 under the previoiu Parish Schools Aot. 
 
 Now. my Lords, I think probably the first question that arises, What is a Denomina- 
 tiooid Bohool under this section ? Upon that I submit that a Denominational School is 
 a tchool in which the religious branch of the teaching represents the tenets of some 
 tfUf^om body. Upon that subject 1 liave thought it proper to look into the diction- 
 ariee. 
 
 LoBD Jvstiob Mkllish. — From what liiw taken place lately, we know what Denomina- 
 tional Schools are pretty well. 
 
 Sib R. p. Collibr. — It is a term of recent intro<luctiou in a great, measure. 
 
 Mb. Browk. — Yes ; and it is used of course in a technical dense. It appears tlut the 
 word '* denomination" is not found in Johnson's Dictionary — it is ho ri'cent as that. It 
 is not found in Todd's Johnson's Dictionary of the dale of 1827, but when you come to 
 1861, 1 find in Dr. Webster's Great Dictioimry, which is deemed by many to be the best 
 of aU, that "denomination" is describeil thus: The third moaning given is, ''a class, a 
 sect, particularly of Christians," and thou he citt^n " philosophy, dividing it into sects 
 and danominations." That isaquotatior by8out]^ey. Then ne gives "denominational" 
 aa relating to " denominations . r sects of religion." for which he cites Pye Smiti^. Well. 
 Hmo, in Dr. Latham's Dictionary, published in 1865, Dr lAtham gives " denomination' ' 
 he deaoribes as an a^jectivo relating tOj or consisting of^ or constituting a denomination, 
 its flhief applioation being to divisions m the way of religious doctrines, whence it often 
 eoinotdei with seotarian, thaii wiiich it is a less invidious term. Tnere is a similM 
 daAaitkm in Webster's Dictionary, the edition of 1864. 
 
 LoBD JtwnoB Jambs. — A Denominational Scliool muttt ex vi termini mean a sohool 
 eetalsUahed by and exclusively belonging to a particular denomination. 
 
 LoBO JusnoR Mellisu. — The mere fact that you hod a C'nnMcienco Clause would not 
 prerent a school being denominational. The foot of a child in the village not being pre- 
 sent during tJie religious instruction, if the i-eligious instruction was that of a particular 
 sect, would not prevent a school from being denominational. 
 
 LoBD JusTiOB Jambs. — A Denominational iSohool must be a school established by a sect 
 or denomination for the purposes of that denomination. There might be a denomina- 
 tional School for Mohammedans or Parsees. 
 
 LoBO JusTicR Mrllish. — A school where the iioouliar tenets of peculiar sects are 
 taught and the tenets of no other sect are taugnt, because if you allow all sects to 
 eome at their own boura and teach their own tenets, that would not make it a Denomi- 
 national School. 
 
 Mb. Bbown. — I understand it to be a sohool where the religious teaching is that of a 
 p«rtioular denomination of Christians. 
 
 Bm M. Smith. — If you tell us what the Schools are, probably, without reading the 
 dainitftons we shall see whetlier this is a Denominational School. 
 
 Mb. Bbowm. — Before doing that would you allow me to say that the word seems to be 
 used in the sense that I was using it. In the Consolidated Statutes of Lower Canada, 
 ehapter 15, section 103, where I see "There shall be in each of those cities in Quebec 
 and Ifontreal a Board of Examiners composed of 14 persons chosen in as fair luid e<tui- 
 table a manner as possible from among tne different religious denominationB." Then 
 the next article says tiiat " half of them shall be Reman Catholics, and a half of them 
 ProtMtants." and they are to form the Board of Examiners to exunine teachers. In 
 daaltaig wlto this question, what are the Denominational Schools ? I submit it should 
 be borne in mincf that the Denominational Schools here contemplated iq>pear to be 
 
 
feuoh M htkvv itomo kind n( logal eNlabliithmttnt, in otbor word* not to relate to Bay 
 private itohool establinlied hy any religioiiM body, nucb m a private MethodJat Sobool or 
 a Baptbt School. Tliat argument seem* fortiflod strongly by the consideration that it 
 b not to be lupiKxied that the It>tfislaturoii would have any <liBpoi«ition to interfere iHth 
 private aohooU eotabliMhud by rofigiouH bodioH MU«*h as WoHioyanK, DaptiHta or Indepen- 
 denUii but with such hoIiooU hm luul legal eHtabliiibmnnt. 
 
 Having permisod thuse romarki*, I will call your LorcUhips attention to the nature of 
 the lobooU that existo<l at the time of tbo Union. These schools existing at the time 
 df the Union were governed by an Act oalle^i the Paris!) (^lohools Act, whioh is an Aet of 
 New Brunswick of the 2! of Vict. Chapter 0. This is the Act passed before the Unioh 
 and in force at the time of the Union. The general scope of tnis Act appears to be to 
 encourage the OHtabliHhment of schools all over the Prtivince of New Brunswick while 
 holding out to various narishen and districtH in the rrovmc«L that if they establiahed 
 these schools, and if tlioy voluntarily oMHesseii themsolvev for the support of these 
 schools, they shall recoivo a cerUin contribution from an annual grant oftne Provincial 
 Legislature, but it ]>rovideM for n Board of Education, for a Superiontendent of Schools^ 
 Trustees of Schools. Those are the thrt e IkmUos who imaniue the Schools ; and it pro^ 
 vides also for the duties and qualifications of toachotn. Then there are a number of 
 clauses relating to that and on ovei^- imnortant clause relating to the teaching in the 
 sehool. Under this Act of the Provuicial Parliameut, you will find that the general gov- 
 ernment of these Parish Schools was vented in a Board of Education comprised of the 
 Ghovemor and Council and the Superientondan t of SchooU. That will appear in Sections 
 1 and 2. Section I is "The Oovornor and Council may a|ii.oint a Chief Superientendant 
 of Schools," and Section 2 is "The (iovernor and Council with the Superientendent of 
 Sohoola shall constitute a Provincial Board of Education." Section 3 empowen tbo 
 Governor and Council to divide the i)rovince into 4 districts and appoint an Inspector 
 of Schools for each diatrict. Then comes some claunes headed "Board of Education." 
 You will see the powers of the Board under that h«)ad. They were to have power to 
 establish a Training School. Then they were to miiko regulation for the organiaatbn. 
 government and diHcipline of Parish .'^hools, and the examination, classification ana 
 mode of licensing teachers, to appoint examiners of teachers, and to erant and cancel 
 licenses. They were to " hoar and determine all appeals from tbo decision of Trustees.'* 
 They were to prescribe the duties of Inspectore of Schools, and to apportion all moneys 
 granted by the Legislature for the support of all such schools among the several par- 
 iahes ia pi-opurtion to the number of classes of Schools reported to have been efficiently 
 conducted for the preceding year, not exceeding an average of one thousand dollars to 
 each parish in any one County, nor one thousand three hundred dollars to any one 
 paiish therein, 'nien they were to provide for the establishment, regulrition and gov- 
 ernment of School Libraries, and the scloctior. of hooks to be used therein, but no 
 works of a licentious, vicious, or immoral tendency or hostile tc the Christian religion, 
 or works on controversial theology shall be admitted. The other provisions of that sec- 
 tion may be passed over. Then as to the Superintendent — he was to have a general 
 supervision and direction of the training and model Schools and the parish &hooIs, 
 subject to the order of the Board of Education. That is sufficient to state about the 
 Superintendent. Then I go to Clause 6 which relates to the trustees, " Three trusteea 
 of Schools shidl be annually elected in each Utvrn and parish at the time and in the same 
 manner as other town and parish officers^ who shall be subject to the same pains and 
 penalities for neglect or refusal to act, or tho non performance of their duties aa other 
 town and parish officers, and when any town or parish fails to elect the Sessions ihiJl 
 appoint as in other cases ; in incorporated Towns, Cities or Counties, the Council shall 
 appoint the Trustees, but the Trustees in office at the time of the passing of this act 
 shall continue to act until othen* ere appointed in their stead." The next sub-division 
 describes their duty. — " It shall be the duty of Trustees to divide their respective 
 
 Sarishes into convenient School districts, and from time to time to reconstruct them and 
 efine in writing the boundaries of each district and file a description thereof with a 
 Clerk of the Peace, and in incorporated Counties with the Secretary Treasurer and a 
 copy therepf with the Town Clerk." Then it uays. " They shall give a licenaed teacher 
 authority fn working to open a School in a district where the inhabitants have provided 
 a sufficient School House, secured the necessary salary and with their assent agree with 
 such teacher ;" so that it does not appear that the establishment of Schools was com- 
 pulsory on inhabitants anywhere under this act of Parliament, but that where the inha- 
 bitants had provided a School House and secured the necessary salary, there the truateea 
 were to give a licensed teacher authority to open a school. Then it says the Trustees 
 " may suspend or displace any teariher for incapacity or any improper or immoral eon- 
 duct" ana so on. Then there are provisions about electing a School Committee whioh 
 are not very important. 
 Lord JnsnoB James. — They are to be taken with the whole of it. 
 ICa. Browx.— Yes. 
 
 liORo JuanoB Mbllub. — Do you contend that the Parish Schoolg themaelvea were de- 
 ai^olnaticaal under thia act. 
 ml. B*0WK.— Certainly, that is the main point of the case. 
 
Lord JosTicK Mkllimii. — Uow can ParUh 8chcMjli« he (lenoiuinutioii:il ? I umiorttood 
 you to aay that thero wa» power under this act to give funds to exclusively Roman 
 Catholic Schools, tlint is to say if the Roman Catholics established a Roman Catholic 
 School under this act u Government subvention could be given to that School. 
 
 iiu. Bkown. — What I meant to convey was this^ that under this Act the Board of 
 Education had power to appropriate part of the funds raised by taxation in the pro- 
 vince to either n Roman (Jutholic or a Protestant Episcopal School or a Wesleyan 
 School. 
 
 Loud Jcsticb Mki.i.isii. — Do you moan those being all the Parish Schools. 
 
 Mh. Bkowx. — Certainly. 
 
 liORD JusTiOK Mkllisii. — Do you mean tliatif the Roman Catholics were a majority in 
 a particular Parish they could oret^t an exclusively Roman Catholic S<^hool ? 
 
 Mr. Brown. — Certainly, and that is precisely what they did. 
 
 liOHU JusTiCH Mklusii. — We must not loolc at wliat they did, but what the Act says. 
 
 Mh. B.u>wtr. — I moan titat thoy have not departed from what was authorized by the 
 Act. I apprehend your Lonlships will take into accoimt wliat they did in pursuance 
 of the Act. Well, then, towanls tlio end of Section 6 we find tiiut, ' In any Town, Vil- 
 lage, or populous district the Trustees amy authorize such nuinbon of Schools as the 
 wants of the population may require.'' The next clause but «»nn says, " The trustees 
 shall apportion among the School Districts in their respective pprishes any money raised 
 by oounty or parish assessment for the support and maintenance of the Schools therein 
 in such manner as they shall deem just and eiiuitable." 
 
 Lord Justick Mrixmii. — May there be several Schools in the same parish? 
 
 Mr. Brown. — Clearly. 
 
 Lord Justck Mki.i.ish. — Has each School a district of its own, or might the parish say, 
 "We will have one Roman Catholic School, one Episcopal School, and two schools of 
 other denominations in our parish." 
 
 Mr. Brown. — I shouhl tliink so. 
 
 Sir M. Smith. — One of the clauses of this section is, " It shall be the duty of 
 the Trustees to divide their respective parishes into convenient School Districts." ^ 
 
 Mr. Bhown. — As I undei stand it the effect of it is this, they are to divide their parishe 
 into oouveuient School Districts, the parishes being very largo in this Province, and 
 thoy may have one School or several in a District. Ijower down we find the words « In 
 any Town, Village or populous District the trustees miy authorize such number of 
 schools as the wants of tho population may reiiuire" Then come the clauses about the 
 trustees " apportioning among the districts in their respective parisiios any money raised 
 by county or parish assessment for the support and maintenance of the schools therein 
 in such manner as they shall deem just and equitable. Any parish or district adopting 
 the principle of assessment and the sum required for the teacher being assesscid and 
 paid, shall, for every your such assessment is so made and paid, receive from the Pro- 
 vince Treastirer 10 per cent, over the allowance to schools of the same class in parishes 
 or districts not so assessed, to bo apportioned and paid the teachers therein." Then 
 comes a clause relating to school committees. "The inhabitants of the school district 
 being ratepayers, shall, at the meeting called by the trustees as aforesaid, elect by a 
 majority of votes three persons." 
 
 Lord Justiok Mri.i.isu. — This must be the district apportioned to each pai'tioular 
 school. 
 
 Mr. Brown. — I think so. 'The inhab' bants of the school district boing ratepayers 
 shall at the meet'ng called by the trustees as aforesaid elect by a majority of votes three 
 persons, who shall constitute a school committee for that district and shall continue in 
 office for one year or until others are elected in their stead. The school committee shall 
 have the immediate charge of the school house, with the furniture, apparatus and 
 grounds. Thoy shall, when necessary, call meetings of the inhabitants or the district 
 for the purpose of pi-oviding a school house^ books, maps, apparatus, school furniture, 
 and fuel, and for the support and comfort of the scholars." 
 
 Lord Justice Mbllisu. — They say "school house;" that rather looks as if there were 
 not to be two schools in one district. 
 
 Mr. Brown.— They are to have "the immediate control of any library provided by the 
 district, and may appoint a librarian, secretary and treasurer." 
 
 Sir R. V. Collier. — It would not suit the Roman Catholics to let a committee of Pro- 
 testants havo control over the library because there might be books in it which were in 
 the Index Expurgatorius. 
 
 Mu. BaowN. — Your Lordsliip will see how it worked. Then they might "admit so 
 many free scholars and also children at reduced rates, being the children of poor, and 
 indigent parents, as they deem prudent and just, and they may apply the amount so 
 reowved to the support of the school." 
 
 Now I come to the clauses relating to the teachers which are very important. The 
 heading is "Duties and Qualifications of Teachers," and section 8 is, "The teaohen, 
 aaXp and female, shall be divided into three classes qufUified as follows : Male teaobsn 
 of Uie first class to teach spelling, reading, writing, arithmetic, English Grafiunar, 
 <i«ogr»phy," and so on. There ia nothing about rehgioua inatruetion m thAt, tt«r Jk 
 
(here in regard to the dotinitioii of the mialiticatiuu of teachera of the aooond eUas. or of 
 the third cum, hut a little lowor down tii^re iit tbia, ** Every teacher •ball take diliaent 
 eare " Your lyordshipB wiU tind thin very important, be<<au»« it is a oUuao upon wbiob 
 mjr client in thia oaae vary much reliea. "Every teacher Hhall take diligent care and 
 exert bia best endeavors to iiu^)rcrts upon the minds of the children committed to bis 
 oar* the prinoiules of Christianity, morality, justice, and a sacred regard to tnith and 
 honesty, love or their country, loyalty, humanity, and a ii iversal benevolence, sobriety. 
 industr>', and frugality, chastity, moderation and tum]>««rauce, orrler and doanbnesa, ana 
 all o^her virtues, wluch are the nrnamonts of human »ociety, but no nupil shall be re- 
 quired to read or study in or from any religious b<x>k or join any act of ucvotion objected 
 to by bin parents or guardians, and the Board of Education shall by regulation, secure to 
 all children whose |>arenta oi j^unrdiani* do not object to it, the rending of the Bible in 
 Pariah Hohools, atid the Bible when veofX in the Parish Schools by Roman (Catholic child- 
 ren, sliall if re(|ini-e<l by thoir parnutH or guardians be the Douay V'ei-sion without note 
 or comment." This, of course, in extremely im]X)rtant as l)earing on the question under 
 disoussion. We hnd here thut "no pupil is required to read or study in or from any 
 religious book if the pnrentA or guardiitns objected to it." Of course, if they did not 
 object to it he might oe so requu'od. Then "The Board of Education shall by regula- 
 tion" this is compuUory, " secure to all ohildi-en whose parents or guardians do not 
 object to it, the reoilingof the Bible in Parish Schools — and the Bible when read in 
 Pariah iSchools by Koman Catholic children shall, il' requinxl by their parenta or guar- 
 dians be the the Douay version without note or comment." 
 
 Lord Jitstiok Mrm.isu. — I suppose, though they do not say so, they mean that Pro- 
 testant children should not be made to read the Douay \'er8ion. 
 
 Mh. B'.own. — If not objected to, 
 
 Loau JusTicK Jambs. — I should liave thought if I harl wanted terms to express schools 
 which are not denominational, I should have chosen such terms as ore in tliat clause. 
 
 Mh. BitowTf. — Tliat is the argument adopted by the C«)urt below, but it is my duty to 
 submit that that is not so, when the Act comes to be looked at as a whole. 
 
 Mk. M. Smith. — Surely this is a Parish School in which there may be all denomina- 
 tions, those who do not rett<l the Bible at all, anfl those who read the Bible in its 
 entirety, and those who read only the Douuj' Version. 
 
 Mr. BiiowN. — In certain parts of the Provmce the Itoman Catholics form the majority, 
 in other districts the Protestants form the majority, and in other districts there is about 
 an equal mixture. The result of that state of tilings is that in the Koman Catholic 
 parts, practically, the schools were taught by Roman ("atholio Teachers and the Douay 
 version of the Bible read to the children ; the acts of devotion were Roman Catholic 
 aiuta of devotion ; and Roman Catholic Catechisms were used. That is, where Roman 
 Catholics constitute a great mtyority of the people. 
 
 LoHD Justice Jamrs — In the case of a School Board School in England if all the inha- 
 bitants belonged to the Church of England nobody would interfere if the School was 
 oonduoted in religious matters in accordance with the teaching of the Church of Eng- 
 land; but it would be a very difficult matter if, as is generally the case, the inhabitant* 
 were church people and dissenters of various denominations. 
 
 LoBoJirsTioE Mki.lisu. — ^They mention "the principles of Christianity," that must 
 mean those principles which are common to all christians. 
 
 Mr. BiiowN. — With regard to the Douay Version — the reason why it is directed to be 
 the Douay Bible without note or comment is this — Your Lordships may remember that 
 there ore a groat many notes in the Douny Bible of a highly controversial character and 
 that is why those notes are to be left out. Our view of the Act of Parliament is this — 
 which is the view I have to siihmst to Your Lordships, that this Act of Parliament had 
 regard, of course, to the state of religious belief among the inhabitants of the Province 
 at the time at whi'^b it was passed ; that it was designerl by this Act of Parliament and 
 that such was the practical opemtion of it, that in districts where the whole or the 
 great majority of the inhabitants were Roman Catholics that the Schools should be 
 Roman Catholic Schools ; that is to say in this son^e that the Teachers and the teooh 
 ings should be Roman Catholic. 
 
 Lord Jcstiob Meixish. — How is it secured by that? Because if the Parish changed 
 and instead of there being a majority of Roman Catholics, the Protestante became the 
 ou^ority they must elect a ditleren v body of Trustees and change evei^thing. 
 
 Mr. BRown I quite agree that the intention of the Act was that. If, for example, 
 
 there should be a district which should be vacated by the Roman Catholics and taken 
 poasession of by the Protestants h is impossible to deny that such was the intention of 
 the Aot of Parliament, the Provincial Legislature having i^ view to the variety of 
 opiniona that prevailed. 
 
 Lord Jcstiob Jambs. — A n: ^ority might moke it a denominational School becaua* the 
 majority having the control might elect and govern according to their views. 
 
 8iB M. Smith. — Supposmg that one class of children read toe Bible in its entiretnr uid 
 aaotbwr dasa read the Douay Version, should you call that a denominational School? 
 
 Afli Bsoiry. — No, I should ooll that a mixed School. I aubmit th« intontion of tho 
 Xal k thia, that where you get a mixed population you shotild hav* mixed roliglooa I 
 
\ 
 
 lag, or if ih« narenU obj«ot to it probably none, hut tliAt whttro you g«t • Romui 
 OMaolio'populAtion you Hhoultl havo Itonwn ('ntholit; tfMoliing, and where you huf • 
 Protestant population you Mhall liavp a l'rnt<«Nt4uit tcaotiinc. Tlie Act of Parliamenl 
 muat be auppoHoil to liav«s liact rernrnnot^ to the Ntnto of riMigiouH opinion in the Pro< 
 vinoe. 
 
 SlB M. Hmpth. — Ih tlioru unv part of th«> County whttrn thoy nrn all Kninan (TatholiaT 
 
 Mk. Dbown. — My loarnntl Irioml Mr. Duh' mn toll your Lonliihipa aliout tliat better 
 khan T oan. 
 
 M'i. Drrr. — Yea, a very largo part. 
 
 Mk. Brown. — Thrrn are a groat ntany NottlorH who aro nlinont all Itonuut Catliolioa. 
 
 MlB R. (JoLURR. — Still if a I'rotoittant nhihi oatnn they could not nhut him out. 
 
 Mr. Brown. The probability <it the parnnt^ would not nond him. 
 
 Loan JiriTicR Mri.mhh. — li« wouhl hav<« aM much right to 1n< taught the chrialtan 
 r«>ligion aa any child of Homun Catholic naronta. 
 
 8iR M. HMrru. — ^They are bound to roiul the Kiblo to nil thonn children whoie parent* 
 do not objoot to it. 
 
 Lord J iTitTicK .Iamhh — And to roml the ProtoitUtnt Bible. 
 
 Mr. Bk«)WN. -Tho Bible In not regarded aH u Me(^tarian book. 
 
 HiR K. P. CoLMRR.— Yen, it in in the Index ExiturgatoriuH. 
 
 LoRii JimTiflR Mrlmhh. - " The Bible" moanR the EngliMh Bible, therefore it does aav 
 the Boanl of Education i«hall neoure the rearling of the Bible, that ih the E!ngUah 
 Veraion. 
 
 Mr. Brown. - If u ProteHtant child went to a Koman Catholic School he would be 
 enabled to havu the Protestant Vernion read to him. 
 
 Loiin JvaTicR Jamrh. This ih hh clearly an anti-denominational hcIiooI an can be. 
 
 Mr. Brown. I am oblige<l to admit it is a Pariwh School, but the conitequenoe bv no 
 meana follows that it is not a denominational School in a part of the I*rovince where 
 the inhabitanta are of one denomination. I would test it in this wav, will your Lord- 
 ahipa aak youraelvea, conoidering that the termHusedarepopular, and that "denomina- 
 tional" haa only grown into umo lately? 1 believe I can remember the flrHt time it 
 waa UB«d. 
 
 Ix>Ri) JusTicR .Fames.— Would you call tho Irish Schools denominational Schools? 
 They are, as it seems to mo, exactly the same as these Schools. They must have been 
 taken from the model of the Irish Schools, and they are not denominational. 
 
 Lord Justior Mrixish. — Except that they have a Patmn. The Parish Priest is the 
 Patron and the Patron has a eood deal to do with them. 
 
 Mr. Bhown. — If your Lordships were to go into one of thoMc districts* where there was 
 a Bchool with a Roman ('atholic teacher, and the Douay Bible and Roman ^)atholio booka 
 of devotion, and (^atochisras tmed everyday, and ask any inhabitant there what sort of a 
 School it was he would say it was a Roman Catholic School. 
 
 Lord Justice Jamk.<«. — They try to abuse the Act of Parliament by making it a denomi- 
 national School. 
 
 Mr. Brown. — I apprehend that is not so. That would be an answer to my argument 
 if it woB so. 
 
 Lord Jtsticb Mri.i.isb. — There are no express woiris which say they may teaoh any 
 denominational religion they please. 
 
 Sir J. W. CoLVii.LR. — Your argument would be against the repeal of the Act. It eould 
 not make those Schools denominational, the legal constitution of which was that they 
 were not denominational. 
 
 Mr. Bhown. — I do net say it would. 
 
 Lord Justior Mkllish.— You say this Act could never be altere<I by the Local Legis- 
 lature. 
 
 Mr. Brown. — It is enough for me to say that as I construe the Imperial Act of the 
 Union they wore prohibited from taking away the right of a religious m^ority or a re- 
 ligious totality, in any particular district, to have their own books of devotion and their 
 own Bible, read and taught in that school. 
 
 Lord Justice Mbllisu. — As I collect from reading the papers there actually were in 
 New Brunswick Roman Catholic Schools established by private Aot« of I'arliament which 
 •re not interfered with by this Act at all. 
 
 Mr. Bkown — Not quite so. All that appears is (and that only appears in a passa^on 
 the judgment of one of the learned Judges) that it would seem there were some priTRte 
 Bosuan Catholic Schools not established ny Act of Parliament but alluded to in the judg- 
 ment. 
 
 Lord Justior Jamrs. Huving endowments. 
 
 Mr. Brown. — Probably, but private schools to all intents and purposes those Ronsan 
 Catholio Schools were, as also were certain Wesleyan and Baptist Schools. 
 
 LoHD Justior Mrllish. — Your argument really goes to repeal the substance of the OSrd 
 aeotion which says, " The Legislature may exclusively make laws in relation to education." 
 Yon MV7 they cannot 
 
 •< Mjr. Brown. — I do not go that length, but I say they fall under the restriction pfUiti|>on 
 tMr powtn hj imbHieoaon I. 
 
Lord Jotlio* Mclliah.— Th«re ia ui Aat r«Utlng to P»ruh Hchoola which mad* every 
 ' pMrWi Mhool in New Bruniwiok » non-4iennmin«tioD»l M'.hool. You mv th«y had • m- 
 tarn 1^ which a ou^rity of any denomination In a I'ariiili could eitabliah a aohooi for 
 Ihalr own danomination. 
 
 Mr. Brawn.— I admit a* a fact tliat thrr« aru i>omo <liHtrict« in wliinh tli« inhabitanta 
 war* mixed and the t««a«hinf( waa that of a iuix«d oharaot«r. 
 
 Lord JuB(io<« Meliiah. — Rut then a l^oman Catholic mignritv wouUI have the power of 
 naking a Roman (^atholio Hcluiol. I iln not nee how you could nwlce any diSerenoe be- 
 tween the |>!a«e« whor«« they liad not a mi^rity at the time of the r aaaage of the Aot 
 and where they might get one liert^fter. 
 
 _Mr. Brown. — You have talcen away fmm tiie totalitv of the Ro'.ian Catholic or Pro- 
 taatant inhabitanta of tho diiitrictM tlie |Miwor to PMtabluh Kohoolo in wliioh their own re- 
 Hgiotta tenets are taught. They cannot eHtabliMli auch HohoolK under tiie new Act 
 
 Hir M. Smith — Nor under thix I'ariNh Act. 
 
 Mr. Brown. — If Uiere waH an immipation of l>i<oteHtai>tit into h Itoman ('atliolic pariah 
 and a subaequent ohanve in the rcligiouM vioWH of the .majority, that change would affect 
 the diaraoter of the aonool. 
 
 Lord Juatioe Melliah. — Tho teacher {m hound to give initruot'on in the prinoiplea uf 
 GhriatUnlty. 
 
 Mr. Brown.— Yea. 
 
 Lord Juatioe Melliah. — And luiduuominatirnally. 
 
 Mr. Brown. — I aubmit tliat in not ao. 
 
 Lord Juatioe Jamea. — Do you think it v worth while going on with that ? 'i'heae worda 
 are aa dear aa tltey can be. i cannot chig^mvo that any worda could more clearly con- 
 vey the determination that theae achcjla ahnuld not Iki denominational. 'Fhat aeema to 
 be the plain meaning of thoae worda, i n plain m anything can l>e expreaHe<l in the Eng- 
 Ikh language. 
 
 Mr. Brown. la it {vwaihle to put tiiai, conatntction ii|Kin them, having regard to the 
 wav in whioli thia Aot waa worked 7 
 
 Lord Juatioe ilamea. — I do not think we cau look at that. We have a plain Aot of 
 Fariiament to oonatrue, and we have nothing to do with the mode in which it ia worked. 
 
 Mr. Brown. — ^The Legialattu^ in paaain^ thia Act of Union may l>e Htippoaed to have 
 had regard to the atate of religioua teaching at the time, and the wiahea of the nu^jority. 
 
 Lord Juatioe Jamea. — They knew what the law waa. 
 
 Mr. Brown — ^They muat be token to have had knowledge of the-atatc of thiuga dia- 
 oloaed by the affidavit, from which it diatinotly appeara that in a great number of dia- 
 triota in thia Province, Roman Catholic (oochera were elected^ they had the Roman 
 CathoUo Cateohiama in (he achoola, 
 they read the Bible alao. That atate 
 wUoh aura in terma that the achoola are to he non-aectarian. 
 
 Lord Juatioe Jamea — ^The tirat Aot aaid ao. 
 
 Mr. Brown — Of courae your Lordabip dooa not allege that there are any aueh terma 
 to be found in the iirst Aot. All that can be aaid ia what your Lordabip iuw called at- 
 tention to in aection 8, about reading the Douay veraion without note or comment, the 
 object of which I have endeavored to point out. The fact ia the notea to the Douay 
 Torakm were diatinotly notes of oontroveraial theology. 
 
 GUr Montague Smith — Suppoaing there are children who do not read the Bible at all, 
 others who read it in ita entirety, and othera who read it in the Douay veraion, how can 
 you aay that ia a Denominational tSchool ? 
 
 Mr. Brown. — I do not know that that would be a Denominational Hchool. It would 
 be difficult to aay that waa so, hut I am obliged of course, to put it in thia way, that they 
 were only Denominational iSchooIa where the majority of the inhabitants of a ai8trT.t were 
 Proteatanta or Roman Catholica or belonged to aome particular aect. 
 
 Lord Justice Melliah. — Must not a Dononiinationnl .School, within the meaning of the 
 iint sub-seotion of the 93rd section, be a achool which is to be always denominational ? 
 Would a aohooi, which may be denominational one year and belong to a particular sect, 
 and then the next year to another sect iiccording to tho majority of the innabitanta inita 
 ikvor, be a Denominational School, which any particular class ha^-n by law ? 
 
 Mi. Brown. — Your Lordship haa represented the caae in a very strong light, undoubt- 
 edly. I cannot say they were denominational in perpetuity. I am compelled by the 
 neoeeoity of the facta to admit they might cease to be so ; but still they would be so as 
 long as we mi^rity of the inhabitanta of a diatrict continue in the same faith, as they do 
 for getk rations in Uiese parts. 
 
 lord Justice Mellish.— Ia there anything more to be aaid upon that, becauae if not, 
 there seems to be an end of it 7 
 
 Mr. Brown.— I do not know whether aome light is not thrown on the oonatruotion of 
 the fittt article by the second article in section 93 of the Imperial Act : " All tiie powers, 
 priTileg<4 and duties at the Union by Law conferred and unpoac) in Upper Canada on 
 MeSeDarate Schools anu School Truatees of the Queen's Roman Ciithobc subjeote shall 
 htif MM the aene are heroby extended to the dissentient schools of the Queen's Fnbtti, 
 «Bt Mad BomMi Catholic subjects m Quebec." This second article applies to ih* ^9. 
 
 atholio (eaohera were elected, tney had the Roman 
 s, they iwed Roman Catholic hooks of devotion, and 
 ate of thinga ia diatinctly prohibited by the new Act, 
 
to 
 
 vinoes of t' ]>per and Lower Canaida, m they were formerly called, and the Separate SobooU 
 here mentioned for the Queen's Boman Catholic subject* were schools eetaoUahed bj Act 
 of Parliament in Upper Canada, and in like manner the dissentient sohools of the Queen's 
 I'rotoHtunt nnd Komau Catholic subjects in Quebec were also schools established by jiot 
 of rai-lioment in Lower Canada. They were established by Act of ParliKment in like 
 uiannor as theso Hchoolp in New Brunswick, of coiu-se with this distinction that there was 
 expreHH proviHiouH in t}\j Acts of Parliament relating to the Province of Canada, for the 
 efltablinhmeiit of these 8e])ai-ate and dissentient schools. The Act of Upper Canada was 
 in the con8olidatu<l statutes of Upper Canada, chapter 56. 
 
 Lord JuHtice Jaiuoci. How does that throw any light upon vour argument? In those 
 Provineett there were Denominational Sohools which had privileges secured to ihvm by 
 law. 
 
 Mr. Brown.^-1 iwe it a« showing that Articles 2 is intended to apply to the separate 
 and <li8sentient Schools of Upper and Lower Canada, established by Aot of Fwliainent ; 
 that it consequently doev not apply to the schools of New Brunswick or Nova 8ootia ; and, 
 theretbre, that Article 1, probably by inference, wjus intended to apply to the Parliament- 
 ary Sclioolrt in Nova Scotia, there being no others than those I have mentioned; that is 
 to say, these Parish Schools which, hi Protestant districts were Protestant Schools, and 
 in Catholic districts were (Catholic Schools. So far as Nova 8ootiii is concerned 1 have 
 been unable to discovei- that there wei-e any schools established there beyond Common 
 Scliools. 
 
 Ix)rd .Justice Mellish.— .Vrticle I would clearly apply to a case of this sort-if thj iaw 
 at that time allowed Komaii CathoUcs to establish with their own money exclusively 
 Catholic Schools, it would not be lawful for the Legislature to pass a law saying. ■< We 
 object to the Roman Catholic Keligion so much that there shall be no Koman Catholic 
 Schools in this Province." 
 
 Mr. ih'own. — That is pi-obahly so, but it is not very likely that the Legislature can be 
 supposed to have had that cose before them. There were some private Roman Cathohc 
 Sdiools and some private Presbyterian .Schools in New firunswiok. 
 
 What 1 was a going to say was, that it is more pixibable, both by the words and the 
 reason of the oaae, that Article 1 contempiutod schools of a pubUc character than mere 
 private schools. It would be almost without example in moilem times for the Legislature 
 to interfere with mere private schools of any Body. 
 
 Sir M. Smith. — "ihey interfere with endowed schools. 
 
 Lord .Justice Mellish. — No doubt they do hi this countiy. 
 
 Mr. Bi-own. It would be a veiy extraordinaiy thing here if the Legislature wore to 
 interfere with the Roman Catholic College, at Oxott, or the Dissenters School, at Mill 
 Hill. There was a School called the Madras School, which had a charter from the 
 Crown, and that was confirmed by a private Act of New Brunswick, which I have in this 
 Book ; but it does not appear that that Act did more than confirm the charter of this 
 Madni.* School. Nothing ap[)eare to have been done by Act of Provincial Parliament, 
 excepting the grant of the charter. 
 
 Ijord Justice James. It is all by law, whether by chapter or otherwise. 
 
 Mr. Brown. I submit it c^m hardly be sppposed those were the Sohools wholly and 
 solely referred to in this section. 
 
 Lord Justice Mellish. — The second clause enacts that all the powers, privileges and 
 80 on which the Roman Catholics have in Upper Canada, (which is a Protestant country) 
 shall apply to the Protestant Schools in Lower Canada. That section does not prevent 
 the Logislatpre of Upper Caniida taking away those privileges. That is already done 
 by the first section. 
 
 Mr. Brown. — I think rho thu-d Article probably provided for that — "where in any 
 Province a system of separate or dissentient schools exist by lay at the Union, or is 
 thereafter estaMished by the Legislature of the Province. An appeal shall be to thi» 
 Governor General in Conr>ci' 
 
 Lord Justice Mellish — I hat give a>. ^^i^eal to the Legislature, but still the first 
 section applies to those very schools for the pur-ose of providing that their privileges 
 shall not be taken away. 
 
 Mr. Brown. — As I understand Article 2, it was mtended to put a Umit on the powers 
 of the Provincial I.egislature to make new enactments because it says this — "In eaoh 
 " Province the Legislature may exclusively make laws in relation to education ; subject 
 "and according to the following provisions, one of which is' 'All the powers, pririlegea 
 "and duties at the Union by law conferred and imposed in Upper Canada on ti)»8«aft- 
 "rate Schools and Sobcol Trustees of the Queen's Roman Oiitholio subjects shuU M, 
 " and the same are hereby extended to the dissentient schools of the Queen's Pro- 
 " testant and Roman Catholic subjects in Quebec" That is apparently intended to h% 
 operative in the future. 
 
 Lord Justice James. — ^Do you really think it worth while to pursue this topie aaj 
 further ? 
 
 Mr. Brown. — Your Lordship sees the great importance of the otM. It ini't mj dttif 
 (e represent my own views here. As well as I oan I hav* repr«««nt«d the rlews H m^ 
 «Uent. 
 
 un4 
 Itf 
 afti 
 wl 
 
 an] 
 
11 
 
 Lord Justice Jamed. — It seorns tu be a thmg as plain m possible — a Parish School 
 under the control of a Board, op«in to all sects, there, beins a denominational school ; 
 [t is an absolute contradiction in terms. You might as well introduce the word " not" 
 after the word " shall" in an Act of Parliament, and make a clause read "shall not" 
 when the Legislature said " shall." 
 
 Mr. Brown. — If the easels to turn upon that particular point I do not think I can add 
 anything material. The case is undoubtedly as I.,ord Justice Mellish has stated and I 
 am compelled from the necessity of this to admit that what is a Roman Catholic School 
 this year may become a Protesttmt School the next. It is unavoidable from tJie Act of 
 Parliament. Still what^I do submit is that what the Legislature had in contemplation 
 was the state of things existing and the privileges enjoyed by either Protestants or 
 Roman Oatholios at the time of the Act of Union. The state of things is shown to be 
 such that in Reman Catholic districts the teaching was exclusively Roman Catholic and 
 in Protestant district, no doubt, it was the same If a person in the district was asked 
 what sort of a school this was, whether >r not it wiv^ a denominational school he woul i 
 have said "undoubtedly it is a Romm Cathslic School' and the same observation 
 would be made with regard to Protestant Schools. 
 
 If your Lordships think that it is no use my going into the other parts of the 3ase 
 1 would ask you to hear what Mr Dutf, who argued this case in the Court below, will 
 say with reference to the first article 
 
 Mr. Duff. The inhabitants of this district ha. e felt so much aggrievel that they 
 desire me to present the case before' your Lordships. They have attempted to obt in 
 redress through the Dominion Parliament and have been refused until they Krst ob- 
 tained your Lordships' judgement in the matter : therefore is is that under a great 
 many difficulties we nave felt constrained to bring the case to your Lordships' notice. 
 I shall have only a few words to >ay Of course it is a very important question as re- 
 gards the interests of a large p >rtion of her Majesty's subjects in the province of New 
 Brunswick, and they feel themselves very much aggrieved It is a question that in- 
 volves the construction of th^ir constitution We have now as they have in the United 
 States a written constitution and would like if i hod been possible to have had the 
 assistance of some of the legal minds in the United States to govern us in the con 
 struction of this Act, such men as Mr. Justice Story or Mr. Kent 
 
 Lord Justice Jame.s — I think you may assume that we can construe a statue. 
 
 Mr. Duff, [t will be fair, at all events, to refer very short y to the laws in fo ce in 
 different Provinces at the time of the Union I think on reference to t ese it will be 
 found that a 1 the laws on the subject]of education in Ontario, Quebec, and New Bruns- 
 wick hav'i a two fold object ; the one wa secular educatio i : the other was religious 
 instruction oomMned with that secular e lucaUon That wa.<« particularly the case 
 with regard to Lower Canada where the rights of the Protestant minority were secured 
 by what are called dissentient Schools. The rights of the Roman Catholic minority 
 in Upper Canada were secured by what are termed Separate Schools The righ s of 
 these two classes of chr stians, the Roman Catholics and Protestants, were secured as 
 we say in New Brunswio'c by the 8th section of the Act. 
 
 Lord Justice Mellish. - How were the Catholic Schools n Upper Canada and the 
 Protestant Schools in Quebec managed? 
 
 Mr. Duff. — By an^ assessment. 
 
 Lord Justice Mellish —By an assessment on people of a different denommation. 
 
 Mr. Dutt —No, on themselves separately. That is by the 1.5th. 
 
 Lord Justice Mellish. —Were there any schools ciiiarly denominational schools 
 Roman i 'atholic or Protestant in any one of the four Provinces which were supported 
 by taxes on all the Queen's subject** without reference to their religion 
 
 Mr. Duff. No, I think not, unless your I oidships hold that it was .so in New Bruns- 
 wick. I am oming to that presently. 
 
 Lord Justice Mellish. — That is considered a very great grievance as a rule. 
 
 Mr. Duff.- Section 58 of the consolidated statutes of Lower Canada contains this 
 provision. 
 
 Lord Justice James. — The foundation of the whole case is whether there are deno- 
 minational s hools, and the question is whether it is capabl ' of anything ike a r. a- 
 sonable argument that s si hool open to all the children in the district, in which all 
 children are to be equally taught and which is under the control of ratepayers, whe. 
 ther it is possible to contend that that is a denominational school. It is a public school 
 as distinctly as it can be. 
 
 Mr. l>utf— I wa-< about to ask your Lordship's attention to the laws of Ontario. 
 
 Lord Justice James.— I could easily understand there were denominational Schools 
 whose privileges required to be preserved ; but in New Brunswic » the schools were 
 public schools, established by public moneys, moneys raised partly by assessment and 
 partJy by the estate, into whion it was expressly provided that all ohi dren should be 
 admissible. 
 
 3irM. Smith.'— Section 24 of the Parbh Schools Act is. ''any district seho.! aup- 
 p«rt«d hf Mtesament •ball b» free to all the children resicuDg' therein." 
 
ii^ 
 
 Itr. i>uff. — Under a previous aeotion the majority of the inhabitants of that district 
 ttiusi ooneent ! efore they are liable to that. 
 
 Sir M. Smith. -When they do consent every child in the district may enter the 
 school 1 
 
 Mr. Duff. — What 1 was about to submit to >our Lorships watt that in view of the 
 state of the law of the different Provinces at the time of th« Union, the Imperial 
 Lagislatur* must have contemplated a state of circumstances such as existed in the 
 Protioce of New BrunswioK. 
 
 Lord Justice J mes. — What the I^egislature provided was that if there wa;* any 
 legal right secured by law to any class of religious denominations, the local majority 
 Iras not to deprive that class of ii ; that the leal majority was not to be at liierty to 
 Uki% away any actual legal right secured to any denomination. 
 
 Hr Duff. -Yes but perhaps I may submit to your Lordships thai the anguage of 
 this first sub-section is capable of being applied to a r ght -such as this— a right td 
 oaU into existence Schools . xdusively of any particular Denomination, under partitiu- 
 Ur oiroumsiances or rather conditions of time and place. Tke right would exist even 
 if those Schools themselves did not exist. Your Lord-ihips will observe that the Ian 
 guage is different from the other sub section. It is not a system of Separata Schools ; 
 1. is not a syst m of Denominati nal Schools ; but it is a right in respect of Denomi- 
 national Schools. I would respectfully submit to your Lordships that that right might 
 exist, capable of being called into existence under local circumstances or otherwise, 
 and in point of fact it was from time to time called into existence as shewn by the 
 affidavit of the priest, M. Cormier. We do not of course pretend to say that merely 
 because ;j certain districts sohoo s were established belonging peculiarly to the Roman 
 Catholic denomination where their doctrines were taught, their Bible read and their 
 Acts of devotion practised, therefore that you gave them a right, but if they could call 
 these schools into existence by virtue of any law in force, that, I respectfully submit 
 was a right in respect of a denominational scho I. 
 
 Lord Justice James. — That is to say, that if a school might fall into the hands of 
 persons entirely Roman Catholic or entirely Protestants there would be Roman Ca- 
 tholic electiors and Protestant electors, and a Roman Catholic Master or a Protestant 
 Master appoint d The school miget be so worked as to give it a denominational cha- 
 racter it is thought, but to say that because it h vs atsumed that character it is there- 
 fore a denominational school, any it\jury to which wo Ul be uncon titutional, is mon- 
 strous. 
 
 Mr. Duff. — I refer y ur Lordships to the 8th section in the Act 2lst Victoria, at page 
 30, of the book containing the Acts. " Every teacher shall take dilligent care, and 
 exert his best endeavours to impress upon the minds of the childmn committed to 
 his care the principles of Christianity morality and ju.stice, and a sa red regard to 
 truth and honesty, love of their country, loyalty humanitv, and a universal benevo- 
 lenc sobriety, industry and frugality chastity and moderation and tempo ance. order 
 and cleanliness and all other virtues wbi h are the ornaments of human society, t ut 
 no pupils shall b required to read or study in or from any religious jook. or join in 
 any act of devotion objected to by his parents or guardians ; and the Board of Edu- 
 cation shall, by Regulation secure to all children whose parents or guardians do not 
 object to it, the teaching of the Bible in parish schools —and the Bible when read in 
 parish schools by Roman Catho ic chi dren, shall if required by their parents or guard- 
 ians, be the Uouny version, wit out note or corameut." • 
 
 There we have the Bible secured ; we have the Roman Catholic Bible secured to 
 Roman Catholic children. This section authorises acts of devotion to be practised. 
 It authorises religious books being used. Well, if in a locality entirely Roman Catho 
 lio they appoint a Roman Catholic teacher and Roman ('atholic Trustees, they have 
 their Douay Bible, they practice their acts of devotion and they use religious books, 
 all under this section, all authori$>ed y this law. 
 
 Lord .Justice Mellish.— Is there any section in the Act about prayers in the school. 
 
 Mr. Duff*. -N (t that I recollect. It appears that a school so constituted would be 
 legally constitut d under this Act. The right to constitute such a school is a right 
 secured to them by Law in respect of a denominational school. 
 
 Lord Justice James.— It is a right to the ratepayers of a district to establish a school ; 
 but i is not a righ to a denomination. It is a right to the rate payers to whatever de- 
 nomination they I elong. but >> cause the rate payers may belong to one denomination 
 by an overwhelming majority, that does no make the school denominational. 
 
 Mr. Duff. - The 93rd section would seem to secure some such rights as this, because 
 Lower the other rights, the rights of the system of separate schools in Upper and 
 Canada weie secured by the other sections. 
 
 Lord Justice Mellish. I do not agree with you there because I can find nothing in 
 the first section w .ioh prevented the legislatur ■ of Upper Canada repealing the pe- 
 ouliar laws by which the Roman Catho ic schools in Upper Canada were established. 
 The see. ion says : " All the powers privileges and duties at the Union by law con- 
 ferred and imposed in Upper Canada on the separate schools and school trustees of 
 aU Queen's Roman Catholic subjects shall be, and the same are hereby extended to 
 
 the 
 Qu 
 all 
 sul 
 
 Gei 
 
 rig 
 
 jeo 
 
 wei 
 m 
 
II 
 
 the- diMentient sohoola of the Queen's Protestant and Romai> Catholio subjects 19 
 Quebec." There is nothing that i)re vents the Legislature in Upper Canada rejpeiUing 
 all the powers, privileges and duties conferred on separate schools for the Queen'* 
 subjects in Upper Canada, except the first section. 
 
 Mr. Duff.— The third sub-section has seme reference to it. " Where in any Provinoe 
 a syatam of separate or dissentient schools exist by law at the Union, or is thereafter 
 established by the Legislature of the Province, an appeal shall be to the Goyemor 
 General in Council from an Act er decision of any Frovmcial authority affecting aoy 
 right or privilege of the Protestant or Roman Catholic minority of the Queen's sul^- 
 jeoti in relation to education. 
 
 Lord Justice Mellish.— If you are right thi\t the Parish Schools in New Brunswick 
 were Denominational Schools, that would be a system of dissentient separate sohoola 
 in New Brunswick, and the third subjection would apply to it. 
 
 Mr. Duff.— That is not my contention. 
 
 Lori Justice James.— Do you really go so far as to say that the Act establishing 
 modem schools has never been repealed ? Was there any Act that could not be re- 
 pealed by the Legislature? 
 
 Mr. Duff.— If they simply repealed the Act, and weut no further, we should not be. 
 injured. 
 
 Lord Justice James. — If they simply repealed the Act it is as tabula rasa : therefore, 
 there would be no legal privilege interfered with. 
 
 Mr. Duff.— We should not then be supporting schools of other denominations. They 
 deprive us of the right. 
 
 Sir M. Smith.— The right is gone by the repeal of the Act. 
 
 Lord Justice James. — It seems idle to say they cannot repeal the Act. 
 
 Mr. Dull. — Well, my Lords, that is all I have to say. 
 
 [The Council Chamber is cleared and their Lordships deliberate, 
 time. Counsel and parties are re-admitted] 
 
 After a short 
 
 , at page 
 
 orTJiDa-DviEnsrT. 
 
 Lord Justice James.— Their Lordships have been unable to entertain any doubt 
 whatever upon this question The point is a very short point and depends upon the 
 construction of a very few words in the Act constituting the Dominion of Canada. 
 The question above to which we desired Counsel to confine themselves as lying at the 
 root of the whole thing is whether the Schools which existed in New Brunswick under 
 the Publ c Schools Act which existed there before the new Act, were denominational 
 Schools or not. 
 
 I think the Council would find it impossible to express their view on the subject in 
 any better or more forcible language than that which is found in the judgment of Mr. 
 Justice Fisher, which is probably the more valuable upon these points because as far as 
 their Lordships are able to gather, Mr Justice Fisher personally expressed some doubt 
 as to the policy of the regulatio ,8 under the new system. Mr. Justice Fisher's language 
 after giving some other descr ption of the old School Act is :— "It provided for a School 
 library in each district by a money grant in aid of the amount raised in the locality for 
 that purpose, and placed the selection of books under the control of the Board of Educa 
 tion, but expressly excluded works of a licentious, vicious or immoral tendency or hos- 
 tile to the Christian religion or works on controversial theology. This is the only part of 
 the law in which anything of a denominational character is referred to in any way, and i 
 shows how zealous the Legislature was in gua ding the law and in preserving the Schools 
 from any denominational or sectarian tendency. Provision was made for the educa- 
 tion of the children of the whole people, in chools of every grade and by teachers of 
 both sexes, and by the Superior Schools the wants of higher education were provided. 
 The whole machinery of th^^ Act is designed to make the schools common to the child- 
 ren of every man irrespective of his religious opinions. The Act recognizes the agree- 
 ment of the inhabitants of any locality with a teacher, licensed by the Board of Edu- 
 cation, when they have provided a sutKcient school house and secur d the necessary 
 salary raised by voluntary contributio is or tuition fees. It contains provisions for 
 voluntary assessment in the District, Parish or County where the ratepayers determine 
 to adopt that mode of supporting the schools, and in such case the schools are declared 
 to be free to the children of all the inhabitants. The system is prescribed by the 
 Board of Education ; the localities take an active part in the establishment and govern- 
 ment of the schools subject to the general control of the Government. The local 
 agency is exercised, and the local otlicers appointed in the same manner as for the 
 (Government and support of the poor, the highways or any other local or parochial ob- 
 jects, neither class, creed nor color affect or influence one more than the other. The 
 only qualification for the electors of any Oftieer is that they are to be ratepayers upon 
 
14 
 
 rmXw p«r«onal property or inoom*. No olast or oreed had undbr th« 4o4 any peoallar 
 right, either in the General Government ef the whole Provinoe. or in any Pariah or 
 Sonool. Now when all this machinery for working the Act relating to pariah sohoola 
 had been made, is it not a striking pr-'of of the determination of the Legialature to 
 avoid the very thing which it is contended the Act authorises hy restricting the power 
 of th> Board of E'tucation to make rules and regulations in thli respect, and ezpreaaly 
 excluding from the School Libraries Works hoatile to the Christian relision or worn 
 of Controversial Theology, while :t left the inhabitants free to elect their looal agents, 
 who fhall employ their T aohers and look after the Schr.ols. To secure to every man. 
 and the child of every man, a just equality with^egard to his religious faith, it enacted 
 ipcffbot that the great leading principles of Christianity should he inculcated in the 
 Schools, but there should not be in the library a book upon Controversial Theology, or 
 in other words, with denominational teaching ' 
 
 Their Lordships agree entirely with that view, and with that mode of ezpresaing the 
 law by Mr. Justice Fisher. 
 
 It has been contended on the part of the appellant that de facto they became De- 
 nominational Scliool' in this way-th t i^ to Hay, that whereas the whole machinery 
 was left looal thar the ratepayers had the power of appointing the master, nn I the 
 ratepayers had t e power of appointing the trustees of the school, but where the whole 
 inhanitants of a district or the great majo>-ity of a district belonged to the Koman 
 Catholic faith, or I elonged to a Protestant sect, ther > they could so work the school 
 practically as to give it a denominational charact r or a denominational line -that is to 
 say, if all the children were Koman Catholics, Koman Catholic teaching would be found 
 in that school; l>ut tha- that might be the accidental result of the mode of working 
 the Act under the old system, is not to giv ' a Ingal right to that denomination, which 
 was the right alone which was intended to be prot cted by the Federation Act of the 
 Dominion of Canada. It is an accident which might have happened o day, and might 
 have hcen reversed to-mo-row, by a change of the inha itants of the district or a 
 change in their views, and that is not a thing to which it is possilile to give the colour 
 of a legal right. 
 
 Their Lordships are therefore of opinion that there is nothing i i the ground taken 
 by the appellant, or anything unconstitutional in the Act of New Brunswick ; and 
 therefore their Lordships will recommend to Her Majesty that the appeal be dismissed 
 and dismissed with costs. 
 
 [From the short hand notes of Messrs. Walsh it Son, 3 Idttle George Street, Westminster.] 
 
17 p«oallitr 
 
 Pariah or 
 
 ish soliooli 
 
 (ialatars to 
 
 the power 
 
 1 ezpreMly 
 
 or Works 
 
 0*1 agents, 
 
 >Tery mui. 
 
 it enaotea 
 
 tted in the 
 
 i*ology, or 
 
 essing the 
 
 >oame De- 
 aaohinery 
 '. fln I the 
 the whole 
 le Koman 
 he sohool 
 -that is to 
 be found 
 f working 
 an, which 
 ct of the 
 nd might 
 >rict or a 
 tie colour 
 
 id taken 
 ick; and 
 ismissed 
 
 muster.} 
 
 Mi