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 1653 Cost Main Street 
 
 Roctiester, New York U609 USA 
 
 (716) 482 -03CO- Phone 
 
 (716) 288 - 5989 - Fax 
 
.5 
 NHi 
 
 OF THE SUPREME COURT OF NEW BRUNSWICK, 
 
 tJpon the question of the Constitutionality of '« The Common Schools Act, 
 
 1871," delivered in IJilary Term 1873, in the case of 
 
 A C G US TE RENA UD and othen. 
 
 The Chief Justice delivered the following, as the Judgment of himself 
 and Justices Allen and Weldon. 
 
 North AmerLa Act I8I57 ,\^J!-'""«"'"'^'» "«' '* '« '^""tended, it contravenes ' The British 
 x^uiiu America Act, l«b7, and IS consequent y TO d and of no efifeot W« l,„„« j , 
 
 ».. Court. Wo hwo alwajs thought it a oonstitmioiial prinoitlo loocWr M k. 7 
 
 <luo.t,ou8tl, that the subordinate legialati™ power of a ColoZ r 1 , 7 "°°''' 
 
 .0 the supreme legiabti™ power Tud eo„tr7S L SSettTf ^.T •°""°''' 
 .herefore have heretofore eo..ide„d ii ^U^^J ^l^^ZZlyllXXT" 
 
 of Parhament extending to the Colony to which sUch Law ra.y rel L "puZf 1 
 
 :;ir'sa^s-dtore»r'tj^^^^^^^^ 
 
 of Parliament, order, or regulation as aforesaid." And this St«h!f! ^ ? 
 
 judicial comment in the case of Phillips.. Eyre (Law Ren 6 OR 90 ^"^ "r^''^°°' 
 in delivering the judgment of the E.ch. ^K ilZ^lt^li^^^^^^^^^^^ 
 putting forward what has always been considered Law'rtyf A ,i t ,tTh t 
 English statute only binds the Province when it is by the expresrwol V J" . "" 
 or by necessary intendment. m„1a nl.„,l„ „„„i:„.v,.. .. Vt ?"" '" ''°''^' °^ *^« «tat"te, 
 
 that the Aet ,, ,„e!.t,oa („ *e, f^ bj «.. iegjsjajur. oi J^..^) Jl ™^7,' 
 
" the principles of English Law, and therefore void. This " he «nv, " ;« „ .„ 
 ;; sion, and ™ust .nean either eontrar, to son. positive U. of Z'^LZZZZIZ 
 .pie of natural justice, the violation of .hich would induce the Cour to del Idv nJ 
 effect even to the Law of a Foreign Sovereign State. I„ the former point of wi! 
 lea that the repugnancy to English Law which avoids a Colonial Act. n.ea «p J 
 
 " the Co o„?b ?"' '''T " "'■" '""'^^ '' ""'''''"'> «f «-•' «^«^"^« appl cable fo 
 the Colony by express words or necessary intendment, and that so far as such renur 
 nancy extends, and no further, the Colonial Act is void." ^ ^' 
 
 But long prior to the passing of either the 28th & 29th Vie can 63 or ' Th. W„v k 
 
 L„ ... 0. .b„ ,„bj.ct, ,„ .„.„„ ,„ . ,„..i<,„ pofo^M t, the J„dg.. bj .ho Bo..„ 
 
 lastly propounded, (question 3), which is as follows —" Whether tJl „ w^ T 
 
 hlLf\t . '""'^^ '" '^^ «'"P'«' "" °^ -y °f the said Clergy Reserves and 
 
 which have been or may be invested under the authoritv of the Aot nf M.„ t "J*"^' 
 
 rities within the Province of IJnnPr P„noH„ *., ^"'"'^''sn, lor investing m any secu- 
 
 " of the Act of the W LT rHlm . f" T"^ ^' '"'^^'^'^ """^^^ ''^^ '^"*'>°"*y 
 
 '< rizing the s. e of nTrt of tfrr I V"'''*^ '" '^' '^'^ * ^'^ ^'''^' 4t^ ^- ««tl^o 
 
 " from .h. „ie. ,f .„ or .„, „f .b?. J Sr™ 'iV.h :"„!:„ T;-'" ■"■ '""""■ 
 •• iuoonsisteat wi.h .„d ....,.dicu,r, u, .bo pmW™. o'tb, u ^7,1 "r' '" '" IT"' 
 
I a vagiio expres- 
 or to some prin- 
 decline giving 
 int of view, it is 
 ), moans repug- 
 ito applicable to 
 as such repug- 
 
 •r ' The British 
 dared what the 
 8 by the House 
 
 Common Pleas 
 d Dcnnian and 
 )ns of Law pro- 
 to the question 
 gislative Coun- 
 To provide for 
 ereof,' enacted 
 fecutive Conn- 
 Reserves ; and 
 such Reserves 
 Imperial Par- 
 Majesty King 
 le Clergy Re- 
 ich orders and 
 g in any secu- 
 land, together 
 said Reserves, 
 d their lawful 
 1) we all agree 
 3ce of Upper 
 he sale of the 
 Bt of both the 
 It it should be 
 to sell, alien- 
 in answer to 
 msietent with 
 the proceeds 
 th6 authority 
 h, for autho- 
 'T and Lower 
 jouncil shall 
 pper Canada 
 • be received 
 in its terms, 
 mperial Par- 
 
 3S aUtaOfity 
 
 ■; ™»rv.d V .hat Ac. .o .... C.loni., U,;.Ui.,. .„ „p..l .,,o p,,...i... .f ,„t ,.„„ 
 
 By the 9Jrd section of ' The British North America Act 18fi7 ' if i. . a .v. 
 
 ." [f ) ^" t''e powers, privileges and duties at the Union by law conferred and hnr....A 
 - .n Up,er Canada on the Separate Schools and School Trusfees of the 0„rn' 7 
 
 " m.de, or i„ c..o an, dcci.bn of ,he Governor Ocnoral in iC on .„v Ann ! T 
 " . » ™c.,o„, i. „„. dul, „.«ed b, .h. proper Pro.ineW .„Z .rinltS Atn' 
 nd ,a every such c.», .„d M f.r only .. .ho cironn,etoce. of e.ch c c rc2 ^h. 
 
 -luoo." ■ °°'' "■''^ '""'■"' »'•"'« Oov«.o, General in Council under Z 
 
 :th:t.^et;^:ruC?:;:l::^^^^^^^^^ 
 
 ecu sirongiy, ana wUb great force urged, were not within th- ""r'---'-- 
 
Imporinl Parliament, or infrn<Icd to bo nffeofcd hv ' TJ,n Ti -r u xr , 
 
 but we refer to «„ch .,ehool« „s M.e Wcslevl a^ T d , ^'"■''' ^"""'''"' '^'''- 18«7;' 
 
 n« wc presume also, in fact from tbn r n \ J-rporation entirely ,?i.stinct in Law 
 
 autbori.d to found and ellZ u'l 1 r^tV^tJ'";"^^ 1 ^'""^^^^^""^ "" 
 under the eontrol of the Weslevun ,UnnJ . ?' ^' ^' "" Institution entirely 
 
 thereof, or in any reli«i u ^ le" ZZon7 ,'" "'"°'' °^ '" ""^ '^'T^^-' 
 person shall teaeh, maintain, pro^ie or o f "' r"'""' '' '« ^""^"«'' ^'-' »<> 
 
 trary to what is eontdncd i ceTin Notes onTh" 7 'J^'"" '°''"''' '' P'-^-« -"- 
 bo the Notes of the Kev. John Wes^y'^t 3" n^dtThlTTr*' T""""^ "^"'"^ '^ 
 commonly reputed to have been written and nuhlil u u °"' '°'""'''' "'* ^«'-»«"*. 
 dowed by the late Mark Varley, wT " cathed t ' '""• '''" ^''^^^'^ S<'''^-'. -' 
 Wesleyan Methodist Chureh ol' the C ^oft nt J rr?,"'' " f'' *'^ '""«'"«" °^ ''^^ 
 nance of a day school," which devise wis onled t't,: ^.^^''^^-f -^ -i-te- 
 perty vested in certain persons viz the Tr„«f„ / Vl ^ '"• °"P- ^' ""^ the pro- 
 
 City of Saint. Join i„ Ine eti^n wit theCsVr "f "'^^^^ ^lothodist Chureh i/the 
 Will. The Madras School, which its Chart r;"?' "'"" ''" ^'"«'«' ^^°' '" -'^ 
 called the Madras system, is i.npr, ve by CL 1 a 'd ""'"^"^'^'^--^-K to the system 
 National Education Society, incorporated and .Kr.."'" """^ P'""^''*'''^ '" '^' «"tish 
 Society established in ISuf^as in o^^^^^^^ ^^>"^ ^ -l^ioh Na^onal 
 
 poor ,„ the principles of the Establiled Churcl th r"°J'"« '^' •^^"'•"""" °f the 
 schools established by such Society bintpu'l .^"^^^^^^^ ^^'""'^ -^ Wales; the 
 are to be instructed in the Holy Sc ^tu^es „d tTT""'' " "'"'' ^'•<^^'''^-- 
 Established Church, and, " with resnelVtn 1 I ■^""''^^ """^ Catechism of the 
 
 to the superintendence of the ParoTht Clerl'^'^l", ''"' "'"°'« "^ ^« ^° -^^J 
 to be Members of the Church of Ent a d > ^d ^"V "' "' ""' Mis.resscs'are 
 he lomaa Catholic School established "n the CUv J f^'^W^^'^^y «' «-„inary_ 
 Portland, under the Board of Commissioners of Tv. 7, '^''^"-the Free Schoofin 
 
 John the Roman Catholic School PeLton tie iT" 'n''f° '^''°°' '» «-* 
 Stephen-the Roman Catholic School in Sain A 7 """ ^"'''•'''" '^•^''""^ i" Saint 
 
 name by the Legislature in ^ur^sZs^^^^^^^^^ '^'"'"^'^ "- --^'-ed by 
 
 .pacific annual grants from the P^blfe p;ore 7l^ *^ ^ ^^'J -P- «- and received' 
 In the year 1857 and 8ub«.„ H .. ' ° "*^' ''^' ^""^^ School AcU 
 
 ba^beenaLually^itn^^^^^^^^^^^ 
 
 purposes." not specifying any parUcular Thiol ^ ^'""''^' ''" '^^''"'" «"^"<^''tio„al 
 
 tomary. But the EstimatesVf the P^b e Exl 17""' I' ^'^ ^'''' ^^-'''^^-^ -- 
 
 Journa:, hew that appropriations of fsmlafera;^^^^^^^^^^^ appear in the P„bHc 
 
 Thus ,n the yea. 1867, but before the 1st daTof ^1*/.. 7 "7 ''""' """"^"^ ™»^o- 
 
 Been by the Journals of the House of UlL ^i?° ^"^ "^ *'>« U^^on), it will be 
 
 authorized by Law, the followiTs LtramotXt ' '''' ^" "'''"°" *° '^« --" 
 
 The Madras School; the Wesleyan Academy he B^.' T"-"""" '^'"''^ «'""'«' ^^^-^- 
 
 Scbool, Fredericton; the Presbyterian sS^tsfepC *?«""' *'° ^°"^" C"'''°«« 
 
 John ; the VarJey School, St. John ; the Roman CaTh„r ' ^l "^T ^''^'^'' School, St. 
 
 Cathohc School, St. Andrews, male and femaTe the R «°^°°^' Milltown ; the Ro^.u 
 
 Woodstock. Portland, and Bathurst; the Csby'teria^ Seh", Tf"^"'"''''' «''''«*°«. 
 
 - ^:::°^ii t:^- trt? ? -^ -- ^^ sr* 
 
 -ols;sothat.sobvilthe;;r>^;-~^^^^^ 
 
merica Act, 1807;' 
 ncorporatetl' by the 
 ly (liHtincf, in Law, 
 tliat Academy aro 
 nstitution entirely 
 n any department 
 
 enacted that no 
 10 or practice con- 
 anionly reputed to 
 umes of fiermona, 
 'arley School, en- 
 10 Trustees of tiie 
 ment and luainto- 
 ?• 2, and the pro- 
 list Church in the 
 rusts, itc, in said 
 ing to the system 
 ce in the British 
 
 which Nal^onal 
 education of the 
 and Wales; the 
 ich the;;|chi!drcr» 
 'atechisni of the 
 "0 to bo subject 
 d Mistresses aro 
 ' or Seminary — 
 ' Free School in 
 :5chool in Saint 
 School in Saint 
 recognized by 
 9, and received 
 ish School Act. 
 
 'tional purposes 
 ain educational 
 heretofore cus- 
 '1 the Tublio 
 mnuallj made, 
 ion), it will bo 
 to the amount 
 grants, viz :__ 
 Oman Catholic 
 )lic School, St. 
 ; the Romia 
 'ols, Carleton, 
 )man Catholio 
 871, the year 
 for the above 
 ion, and have 
 
 loon ever s.nco m th.s Provmcc, npnrt from Schools established under the Parish School 
 Ac. dcnon„nat,onaI Schools, recognized by the Legislature ,.nd aided fron. the pub io 
 Itovcnucs. J,„t ..H ,t is not contended that the Comu.on School Law prejudi i Iff'Z 
 
 CL\ I . 1,^0 T "^"'•'^^"'•y toexnnm,e n.inutoly and crilirally tho Parish 
 
 School Act of l.m, under which it is contended • Rights nud Privileges ' exilted wl i 
 :« allege have been so afleoted. By that Act. the'oovernor in C ncil w rslo 
 endent appo.nted by the Governor and Council, constituted the Board of iducation 
 he Provnco was to be divided into Districts by the Governor and Council who were to 
 nppo,nt an Inspector for each District ; and to the Board of Education w 'coLId the 
 power of ma ,ng 1 egulations for the organization, government and dLll e 
 ur.sh Schools, and for the examination, elassifieation and mode of licen ing teae.e 
 ppo,nt exannncrs of teachers; to grant and cancel licenses, and to he ancleter! 
 o Sebnn "'r ^ho decision of T.ustoes; to prescribe U.e duties of n poetr, 
 
 o Sehool.; to apportion all moneys granted by the Legislature for the suppo ofTd 
 school, among the several Parishes, i„ proportion, &c, ; and to provide forT s b is 
 
 Ted', uf :rrsor7""r'°''"'°"' ''''-'-'^ andthe'seleetionof Book to bo 
 used but no Books of a licentious, vie.ous, or immoral tendency, or hostile to the Chri, 
 .an Religion, or Works on Controversial Theology, were to be m mitt d t1 t S^ 
 Jntcn.lent was confided, subject to the order of the Bold V) « . • ^'" 
 
 ieache 8. to be furnished with copies of the Regulations of the Board of Education fen 
 
 of k1 k! / ' r 1 7^>?"°"^' "^"""-"Panied with a return of moneys received for the sale 
 
 wm BM teithjri tom.pend or duplnco toaohors for inoapaoiu &o Thev w«r. ™ 
 " " "»"»"=« •"" mpiojmoi.1 of an A.ai.lant Lioc^Bod Teacher in any 
 
-n.„, , ,. . ' "*''^'"'''''""'' P"'"'«"'l""l'KC"t parents, &o. 
 
 .iJ, i.ir.:'!"""'-"""" ""'""'"■ "" ■"^" ^ ^"•""'•' i" -i- i. Tu«.,„. 
 
 " Lvery teacher shiill take dilii'oiit onro n,ui «»/>>» i • u ^ i 
 n.c«U „,• ,.,„.„ .„.ie„ , b„. „„ p„pu .,,.1, b„ r„„i™ ', ari y „"r flT; 
 
 
ify or Parish 
 liy tlio riitc- 
 Ko tii' nfhdo!- 
 iDiiNo, l>ookn, 
 I icct'ivc ami 
 
 > uduiit freo 
 luruiitg, &o. 
 
 • That aeo- 
 
 (lualilied aa 
 
 tic, Knplisli 
 
 l-survoyinx, 
 
 urithniotio, 
 
 s — spelling, 
 
 d to impart 
 I'roviDco of 
 
 notic, Knp;- 
 IflHS — spell- 
 eedlcwork ; 
 iwork. 
 
 > open for 
 Inapcotors, 
 ^iplino, and 
 
 press upon 
 ', morality, 
 y. loyalty, 
 ity, modor- 
 I the orna- 
 r from any 
 guardians ; 
 parents or 
 ; and the 
 squired by 
 
 ihools and 
 never the 
 ne to pro- 
 y District 
 rein. As 
 ry to refer 
 7, which, 
 in of Dis- 
 i, was the 
 of "The 
 
 School Ac 1H71 ; and l.oonu.e .t in ullc,..,| ,hat ri^htn and privilc^ro. .ocured by or 
 enjoyed un.lcr th.« Act have boon prejudicially affected by The Common Schools Act it is 
 contended that the latter Act is void. ' 
 
 Tho Parish School . Act dearly contemplated ,ho establishment throu,hout the Province 
 of I ubi.e ( onnnon .S.d.ools for the benefit of the inhabitants of the F'n-vince ,o„en.lly • 
 nd ,t cannot, we th.nk. be disputed, that the Kovernin, bodies under that Act were L't 
 n any one respect or particular, • denominational.' The Hoard of Kducation was the 
 Governor and Councl. with a Superintendent appoi.,,., by them. The Trustees w o 
 c eced or appou.ted as the case n.ight be, as nff.rr V.usU ofiicors. and thoy were put Z 
 other respects on precsely the same tootinj, „s other F'arish officers, ami the .ichooi 
 Comm.ttee was elected by the ratepayers; and in nothin, pertaini g to the orlan 
 .zat.on. re.ulat,on .r government of the schools, had any class of persons' r d..,„ mi o„ 
 whatever as such the slightest voice or ri.ht of interference. The Hoard of Kd „ 
 
 on behalf of the .nhab.tants of the Province at large, being responsible for the general 
 work.ng of the system, and the Trustees and S.du,ol C nittees having the n , a' e 
 
 for wh eh hey were respect.vely elected, but (without reference) so far as can be gathered 
 from the . tatuto, in any or either case to class or creed. k'>tl>erod 
 
 The schools established undc^ this Act, were then. Public Parish or District Schoola 
 not belong.ng to or under the control of any particular denon.ination ; neitluy- , at; 
 cla.ss of persons nor any one denomination-whether Protestant or Catldic-ly rt It's 
 or pr.v eges ,„ the government or control of the schools, that did not belon! t'o vty 
 oth«r class or denom.nafon, .n fact, to every other inhabitant of the I'arish or IMs ri 7 
 Ir^'Lol'r °" V ^r"" "^ <^-"""n"tion. nor any individual, any r 1; 
 
 under it a denomina.onal school, or to gi^U :i:!::.^:iln :!:: "'V:^":! 
 ha been sa.d as o the u.tention of the Imperial Parliament in using the words "Im 
 nat.on.1 schools ',nsub.section (1), There seems to bo no difficulty in g ing ale" 1 
 
 well-est.bl.shed canon of construction, that an Act is to be construed aecm-Ut ho 
 
 ordinary and grammatical sense of its language if precise nnrl nn„n K- " i 
 
 Jikewisearuleestahlishedbythehighestap^ellat'lro^rrr 
 
 la d^ in f ""' "''""^ """-""' ""' ''« P^'^'^y - -PP°-J intenUon- « the f 
 
 this.l!^' r 'i"""^ '^' ^'^ '" ^°' '^'' 'f '*>« ^-ds of he Act a e of 
 
 themselves precise aod unambiguous, then no raore can be necessary than to 1. i 
 those words in their natural and ordinary sense • tb„f .», "^^^ssary than to expound 
 case best declare the intention of the LeTrtu^^^^ ''"' ''^ ""'^^ *^^">«^'-« '^ - «-»> 
 The 5th paragraph of section 8, of the Parish School Act has been verv «fr„„ 1 r , 
 en, as establishing a right in respect to denominational scho b Un haT Z^^ th 
 eacher ,s most certainly enjoined to take diligent care, and exert lis best end ^ 
 
 impress on the minds of the children committed to his ea^^ // • z endeavours to 
 
 ^oral,,, ^c. &c. As we think it cannoTb den d It he Seh''";"''r ''<^''-'*""-'^^ 
 to be Public Parish Schools, for the benl nP T't !^t--r^ " • "'"•■'" ^°' ""^ 
 i. Which the, „,hth«.tahlisho.,.,,,,,„^—:— — ^ 
 
8 
 
 in a vast majority of cases throughout tho Province, bo children of parents belonging to 
 different denominations ; can it be supposed, with any reason, that the Legislature could 
 have intended that the teacher, who might possibly himself belong to a persuasion differing 
 from all his pupils, should impress on the minds of his pupils the principles of Christianity, 
 by instructing each one in the peculiar doctrines of tho denomination of its parents ? Stiil 
 less, do we think it could have been intended, that the principles of Christianity to be im- 
 pressed, should be those of a denomination to which any of the pupils did not belong, 
 simply because they might happen to be those of a denomination to which the teacher, of 
 even a large majority of his pupilp, may have belonged. It seems to us, that in view of 
 the entire scope, object, and policy of tho Aci., that the duty imposed on the teacher by 
 the 6th paragraph of section 8, was a duty outside of the Educational teaching of tho 
 school, (which is specifically provided for in paragraphs 1 & 2), to be performed as oppor- 
 tunities occurred, by precept and example, rather than by any direct or continuous system 
 of dogmatic teaching ; that the principles of Christianity, honesty, &c., to be impressed, 
 were to be principles of general applicability, interfering with the peculiar religious views 
 of none; — doctrines, precepts, and practices, which all christian people hold in common, 
 rather than the dogmuLic teachings or tenets of a particular denotnination or sect. This 
 view would seem to be strongly confirmed by the last clause of the 4th paragraph, because, 
 while Under the first clause of that paragraph, the duty referred to is to be discharged by 
 the teacher in respect t^) all the children committed to his carCj without any exception 
 in favor of any class or creed ; the provision in the last clause is — " but no pupil shall 
 " be required to read or study in or from any religious book, or join in any act of devotion 
 " objected to by his parents or guardians," leaving the duty still on the teacher " to im- 
 " press on the minds of the children committed to his care, the general principles of 
 " Christianity, morality, justice, a sacred regard for truth and honesty, &c. &c. ; " and the 
 paragraph ends by providing that the Board of Education shall, " by regulation, secure to 
 " all children whose parents or guardians do not object to it, the reading of the Bible in 
 " Parish Schools ; and the Bible, wlien read ih Parish Schools by Roman Catholic children, 
 " shall, if required by their parents or guardians, be the Douay version, without note of 
 " comment." This paragraph, so far from making the schools denominational, or giving 
 any rights or privileges in respect to a denominational school, appears to us to be directly 
 opposed to the idea of denominational teaching in the schools. Does not the very last 
 clause, (that most relied on at the argument), permitting the use of the Douay version, 
 by the addition of the wofds " without note or comment," shew, that with the Bible read 
 from that version, no denominational views of any kind shall bo put forward j and is not 
 the whole in this view entirely consistent with tho exclusion from the School Library, 
 and from use, of all works on controversial theology ? But it has been said, that under 
 the Parish School Act, schools were in fact established in certain localities where all, or a 
 large majority of the rate-payers, happened to belong to one particular persuasion, in 
 which the catechisms of particular Churches were taughi, prayers peculiar to a particular 
 religious body were used, and books inculcating the doctrines, views and practices of a 
 particular denomination were used as Class Books ; and that these schools were therefore 
 denominational, and consequently the class of persons belonging to any such denomina- 
 tion, had a legal right or privilege with respect to denominational schools. Assuming 
 what is alleged to have been the case, — though on the point We have no information before 
 us of which we can take judicial notice, — surely it is begging the whole question. How 
 can the mere fact, that in exceptional cases, certain schools under the Parish School Act, 
 drawing Provincial aid, may have been made for the time being, with or without the 
 knowledge or sanction of tho Board of Education, denominational; by reasob of the 
 
confer any legal right or privilege on ant ? T P''"''"' ^'''''^ denomination, 
 
 «ebool, 0^ gi^e tL de„r:i:^rn wl 11:"^::^:^' "^^^^ to do„o.i„ational' 
 Bchools, rights or privile-^es other thl^ hIT ^ ^ 7! ^''" '** ^""S'^* '» »"y «»ct 
 inhabitant of the Plish Fa which LJn^^^^ PTH ^' '^' ""'^ ^^"^^^ ^'^ '^"'"b'-* 
 national connection ? ^"°' '''''°''' ^^'^^ '^'"^ independent of all denomi- 
 
 principles of Christianity may have hi ,f "°'' '' '' '''"^ '^' ^'^'^^ '» ^'''ch thl 
 
 «el.o. which .ay ha:? rrX^Tub^ Jn^ld^r'SI^; 77 ^ f"^'^^ 
 question in a legal view must be deternnned • we mustlnl ! r "^ ^''' '^"^ *^° 
 tiu>e of the Union, and by that, and that al n^be ^ov r d wt ^J' "! '' "^ "' *'° 
 legal exclusive right or privilec^e conferred on In! f ^''"."^- . ^^^^^-e then do we find any 
 or that might be ^stabliled under (^0 17 '^"?"'"«^'°» *« -^ -^ool established 
 class of persons to deal with such a 'oh- •«' u T ''^^'' '' ^''''^'^' «°»^«-«J on any 
 nomination ; or as being udethir cont ^^'°"'"^*° "^' ^"^""^ ^« ^ «='-« - ^- 
 
 to have taught the.in, the peelTd^roV^e ; dl^^^^^^^^^^^ ''' Tf' 
 
 the character or status of the school ,.m.u i, i n , "'"'nation f 1 he assumption that 
 
 by reason of the religious opili:';:' ^^L^^Z ''tf': ''''' ^"^^^ 
 of them, because in such a case Trustees and a In IP '*' "^ " ""•'"'"^y 
 
 elected from a particular denominatio a d To itten thTsXT '"'f ^P-'^-- ^e 
 nnnational, is in our opinion entirely e roneous To th^ P school might be made deno- 
 the controlling, governing power Bv Z! , . ""'^ of Education is entrusted 
 
 ^vithin the lettt and sph^Vthe Act must W "" "l'' ?^"'''"°^' ""''' ^^ -<l-ned 
 ^vholly independent of^ ^iot 'op n o "o^ t^e T t" 'TT'''' ""^ ^°^--^' 
 Trustees elected by them. It appears t u hi .. f"' '^' ""''''''''' '' '' '^^ 
 the Legislature contemplated a .ene a 2 V i? '" ^"''''^ '^' ^'"'^ School Act, 
 inhabitants of the Pr" ince wiru tr Z \ f """°" '" '''' ^"^-^^ '' ^^^ the 
 to be organised, regulate n^^ " T'-' ^'^^ ^"^' ^^^°°'« -- 
 
 being in any way under the con'tro "f any'cl or denl' ""*^"^^^^•^ "-^ence to. or 
 provision for any schools established thereunde bl ^T ^""'"''^ ' '^'' *''« Act made no 
 that any seet or denomination wh te as tct ^^^^ denominational and did not provide 
 or precedence, nor in any way dve or rnnn ' /°^ '""^ ''^'^^' '« ''^ve cont:,l 
 
 in the schools'establishJ ZleZ: ZlZnZ' ^f' 1" "^ ''''' '' ^^^^°°« ^° ''- 
 tion taught as part of the system of n'trucl to havT' V Tf ''"^ '^^"°•"■- 
 denominational in their character ThT^T f f "'' ''^°°''' '" ^"^ °ther respect 
 
 the duty of impressing on he mmdo^^^^^^^^ the Act simply recognLd 
 
 honesty. &c., common alike to all chri tia„s a3 2':,f "^"^ ^^T' °' ^'"^*'^"'*^' 
 lation the reading of the Bible as th Zp^r d Cd oVS" ""'Yr^^^ ^y -g- 
 as the basis of their faith, securin.. alwavs to tt P "^^^^od accepted by all christians 
 Roman Catholic children if .e ule^;; the r p^^^^^^^^^ ^e " '^^ "««' ^^^ ^^^ by 
 Church, but without note or comment -but at th? 1' . °'' ''ecognized by their 
 
 caution and scrupulous care, lest thr^^Hg o t ^ iS Vfl^ ^^^^^ «-^«t aPparent 
 providing that even with respect to the inculcatinHh • TJ ft ^" ''''''^''"^ ^'*h' 
 
 Ac, as indicated, no pupil sho.ld be requterto re d r«^^'' ^^ '^^ 
 
 hnr^h- nv ioir in o- " ' ■ »«4uirea to read or study m or from nn,, -«!;„;— ^ 
 
 ; '"^ join in auy act or aevoiion ol ]pot^A tn U^ u;„ . " ■'' ■•'■s'""* 
 
 »i.l. r.,p.», „ .h. „»di»g of th. Bib r U "to bo ""T "'; ^""'''•"- '^"i "'■ "" 
 
10 
 
 or the teaching of denominational doctrines, vras not recognized or provided for by the 
 Act and the Roman Catholics had therefore no legal rights, as a class, to claim any control 
 over or to insist that the doctrines of their Church should be taught in all or any schools 
 under the Parish School Act, how can it be said (though as a matter of fact such doctrines 
 may have been taught in numbers of such schools) that as a class of persons they have 
 been prejudicially affected in any legal right or privilege with tespect to " Denominational 
 schoois," construing those words in their ordinary meaning, because, under ' The Common 
 Schools Act 1871', it is provided that the schools shall be non-sectarian ? 
 
 But it is contended in this case, that the words " Denominational schools" were not used 
 by the Legislature, and should not be construed by us, in their ordinary grammatical sense 
 and meaning, but should have a much broader interpretation. While freely admitting 
 that thou-h the general rule is, that every word must be understood according to its legal 
 meaning, °in construing an ordinary, as opposed to, a penal enactment, where the context 
 shews that the Legislature has used it in a popular or more enlarged sense, Courts will so 
 construe the language used; we are at a loss to discover anything in "The British 
 North America Act, 1867," indicating a legislative intention of using the words otherwise 
 than in their ordinary meaning. It is clear enough that the reference in sub-section 2 to 
 separate and dissentient schools in Ontario and Quebec, is especially to schools of Protes- 
 tants and Catholics; and it is, perhaps, equally clear that sub-section 3 applies only to 
 • schools of a like character existing in any of the four Provinces. But we are at a loss to 
 understand why sub-sections 2 & 3 should be held to control or in any way limit or aflect 
 a previous distinct enactment, couched in plain and unambigious language, and which, 
 by quite as clear and unequivocal terms, has relation to all classes of persons or denomina- 
 tions and to all the Provinces of the Dominion ; or why, because separate and dissentient 
 schools as between Protestants and Roman Catholics, not only in Ontario and Quebec, but 
 in any Province in which they may exist at the Union, or be thereafter established, are 
 provided for and protected, therefore we must necessarily infer therefrom, that in using 
 the term " Denominational schools" in sub-section 1, the Legislature intended to legislate 
 only as between Roman Catholics and Protestants, and then also as to schools not neces- 
 sarily denominational in the ordinary acceptation of the term. We think that the term 
 •'denomination" or "denominational" as generally used, is in its popular sense more 
 frequently applied to the difiFerent denominations of Protestants, than to the Church of 
 Rome • and that the most reasonable inference is, that sub-section 1 was intended to mean 
 just what it expresses, viz. that " any" that is, every " class of persons" having any right 
 or privilege with respect to denominational schools, whether such class should be one of 
 the numerous denominations of Protestants, or Roman Catholics, should be protected in 
 Buch rights. If it had been intended that the clause was to be limited in its application 
 to Roman Catholics and Protestants, only as dissentient one from the other, and apply to 
 schools other than those usually understood as denominational schools, is it not fair to 
 presume that the Legislature would have used some expression in the sub-section itself 
 indicating such a particular sense, especially as we have seen there were at the Union, m 
 this^ Province at any rate, strictly denominational schools, both Protestant and Roman 
 Catholic, to which such a clause would be applicable ; a ad for the very reason also, that 
 when dealing with schools as between Protestant and Roman Catholic in sub-sections 2 & 
 3, the language clearly confines it to those bodies respectively ? 
 
 But assuming that the term " Denominational Schools" is not to be construed in what 
 has been called its narrow signification, perhaps the most favorable position to assuuie 
 would be, to read the' sub-section 1 as meaning substantially that nothing in any such law 
 shall prejudicially aflfect any right or privilege which any class of persons, as a denomina- 
 
 I 
 
1 for by the 
 1 any control 
 • any schools 
 ich doctrines 
 ns they have 
 nominational 
 rhe Common 
 
 vere not used 
 matical sense 
 3ly admitting 
 ig to its legal 
 e the context 
 Courts will so 
 ■' The British 
 irds otherwise 
 b-section 2 to 
 ols of Protes- 
 pplies only to 
 .re at a loss to 
 limit or aflect 
 ;e, and which, 
 . or denomina- 
 nd dissentient 
 d Quebec, but 
 atablished, are 
 that in using 
 ed to legislate 
 lols not neces- 
 that the term 
 ar sense more 
 the Church of 
 ended to mean 
 ving any right 
 ould be one of 
 le protected in 
 its application 
 r, and apply to 
 I it not fair to 
 b-section itself 
 1 the Union, in 
 nt and Roman 
 lason also, that 
 ub-sections 2 & 
 
 istrued in what 
 
 itiou to aSaunic 
 
 in any such law 
 
 OS a denomina- 
 
 ]1 
 
 tion, had by law with respect to schools in the Province at the Union. Let us endeavour 
 
 ScZ r.mf 7" ""' ^ case we would be justified in pronouncing I ComZ 
 BcLools Act 1871, ultra vires, and therefore v* v^ommon 
 
 Except nn the mutter of compulsory taxauo here is no very great difference in prin- 
 
 r; IStT "th""""^' ^'""" ''' ^'^"^^ ^'--°' ^^* «^ ^«^« -^ ^^e ComZ Schol 
 ,A Vl\ ^T g°^^"-"°'«"*. superintendence and control of the schools are 
 
 under both laws vested in a Board of Education almost similarly composed, the o W d f! 
 ference be.ng hat to the Governor and Council and Superintendent, I added the Pre [- 
 dent of the University, under the latter Act; in fact, the power to make Regulations for 
 the organization government and discipline of the Schools, appointment of Ex m s 
 Te hers, and the power of granting or cancelling licenses, and of making such Regda- 
 . tions as may be necessary to carry into effect th. Act, and generally to provide torC 
 J exigencies tha may arise under its operations, ai. precisely the same in both ;-(See sec 
 
 4, paragraphs 3 to 10 of the Parish School Act, and sec'e, sub-sections 4 to 8 of the 
 Common Schools Act : and the details are to be carried out by a Superintendent In pec 
 tors and Trusses, alike substantially under both Acts ; and the duties and pow;" sofTse 
 officers do not in principle substantially differ. But there are, of coui^'e, diffe ences 
 Ihose rehed on are that the Common Schools Act has no enactment simila to secTon 8 
 of the Parish School Act ; that the Parish School Act had no enactment similar to sect^a 
 58, sub-section 12 of the Common Schools Act; and this section, it is alleged, prh bits 
 tTlZ' "^T'f^^V' -y ^-' Schools under the Common' Schools L and h 
 by he 60th section of the Common Schools Act, all schools conducted under its provisions 
 shall be non-sectanan-a provision not to be found in the Parish School Act; and it is 
 conten ed, that the omission in the one case, and the express enactment in the ther pr 
 judicially affect the rights and privileges which the Roman Catholics, as a class of persons 
 
 under the Parish School Act; m other words, that the rights and privile^^es which thev 
 
 With reference to the omission : The Parish School Act no doubt declares that th. 
 
 ofX B bf "1r rf ''-'It' :" ''''-^ -^- P-"*« ^° not obS : e d ng 
 of the Bible and that when read by Roman Catholic children, if required by their parel 
 
 It shal be in the Douay version, without note or comment. Here, we have exp^; 
 directed o be secured to all children, what many persons no doubt c nsider a grearriS 
 and privilege; and Roman Catholic parents have a great right secured to them vi fo 
 have, If they require i , a particular version of the Bible read. As to the reason whv I 
 similar provision, securing the«e important rights in which Protestants and Catho ics were 
 both interested, was excluded from the Common Schools Act, it is not our W in s Jn 
 quire; what we have to determine is, does this omission make the Law void f L ther" 
 respect, unobjectionabe? We think not. If this was a right or privirege wi. oh , tj 
 at the Union, the Legislature certainly have not protected it by any express raetment 
 But IS t e right taken away ? May it not still exfst, provided aLyVitTrigh; which 
 legitimately comes under sub-section 1, section 93? Because thai section decla el that 
 nothing ,n any such Law shall prejudicially affect any such right- and in MT 
 reading the Common School Law by the lighl of this seS would i be t tut^f 
 the Board of Education und.r the Common Schools Act, instead of making ReVuSoa 
 
 close the daily exercises of the school by reading a portion J ^..;^.„,. ..T.T 
 " t'om«on or Douay version, as he may prefer), and'by Bering Vho~Lord'7pia;;rlany 
 
32 
 
 " other Prayer may be used, by permission of the Board of Trustees ; but no teacher 
 " may compel any pupil to be present at those exercises, against the wishes of his parents 
 •' or guardian, expressed in writing, I the Board of Trustees;" to secure by Regulation, 
 just what the Board of Education were bound to secure under the Parish School Act of 
 1858; that is, to make just such a Regulation as the Parish School Act required to be 
 made? We have seen they have precisely the same, and only the sauie powers to make 
 Regulations, as the Board had under the Parish School Act. By this simple means, the 
 rights of all the children and their parents in the Province — as well Protestant as Roman 
 Catholicr-which existed at the Union, would be preserved, and all just cause of complaint 
 on this head removed. Why the Board of Education should have departed from the 
 principle and policy of the Parish School Act, and taken from the parents of all the chil- 
 dren of the country — Protestant and Roman Catholic alike — the great boon and privilege 
 of insisting on the Bible being read in schools, as they have done, and should have confer- 
 red on the teacher, not only the privilege of reading the Bible or not as he likes, but out 
 of the Common or Douay version — not as the children or their parents may choose, but as 
 the teacher may prefer, though he cannot compel the attendance of the pupils, — is not for 
 us to attempt to' explain ; we sim^ • point out the fact. But if the right secured by the 
 Parish School Act i^ protected by ' The British North America Act, 1867,' we full to 
 i3ee, because the Board of Education may not have made such a Regulation as they ought in 
 such case to have made, or have made a Regulation they ought not to have made, that the 
 action of the Board, or its non-action, can render the Act of the Legislature inoperative. 
 
 If the right and privilege falls under section 93, and if there is no power to com- 
 pel the Board of Education to make such a Regulation, or the Legislature should have 
 inserted a clause in the Common Schools Act, requiring them to do it, is not this just a 
 case where sub-section 4, of section 93 of ' The British North America Act, 1867', applies? 
 viz : — " In case such Provincial Law, as from time to time seems to the Governor General 
 " in Council requisite for the due execution of the provisions of this section is not made, 
 " then as far only as the circumstances of the case may require ; the Parliament of 
 " Canada may make remedial laws for the due execution of the provisions of this section." 
 In this conntction we may refer also to the 20th Regulation, which, it has been contended, 
 prejudically affects the rights and privileges which the Roman Catholics had under the 
 Parish School Act. This Regulation declares that " symbols or emblems distinctive of any 
 " national or other society, political party, or religious organization, shall not be exhibited 
 " or employed in the school room, either in its general arrangement or e;»ereises, or on the 
 " person of any ten her or pupil." It may be, that the Board of Education have disre- 
 garded the general policy of the Common Schools Act, and interfered with the rights of 
 teachers, parents, and children, in excluding from the schools alike teachers and pupils, 
 who may exhibit on their persons, in dress or ornament, symbols or emblems distinctive 
 of ayn national or other society, political party, or religious organization : for, however 
 clear the right of the Board of Education may be to make regulations necessary for the 
 good government and discipline of the schools ; to make arbitrary, restrictive regulations 
 as to the dress or personal adornment of the teachers and pupils, or which are calculated 
 unnecessarily to interfere with their feelings, national, social, or religious, in matters not 
 calculated to give any just cause of offence to others, or to interfere with good order in 
 the schools, is quite another question. And while it is by no means clear to us, that any 
 power exists in the Board of Education, under the Common Schools Act, by regulation, 
 to deprive teachers, parents, and children, of their right of access to tb '~'ree Schools of 
 the country, to the support of which they, and all others, are forced to contribute, unless 
 they submit to such rpguiations ; aod though the assumption of such a power of practical 
 
; no teacher 
 'his parents 
 Regulation, 
 !hool Act of 
 "juired to be 
 crs to make 
 ) means, the 
 it as Roman 
 )f complaint 
 !(! from the 
 all the chil- 
 nd privilege 
 have confer- 
 kes, but out 
 loose, but a3 
 , — is not for 
 ured by the 
 ,' we fail to 
 ley ought in 
 ide, that the 
 nopcrativc. 
 ver to com- 
 ihould have 
 t this just a 
 J7', applies? 
 nor General 
 is not made, 
 irliament of 
 lis section." 
 I contended, 
 i under the 
 ictive of any 
 )e exhibited 
 es, or on the 
 have disre- 
 he rights of 
 and pupils, 
 I distinctive 
 or, however 
 sary for the 
 regulations, 
 i calculated, 
 matters not 
 od order in 
 IS, that any 
 ■ regulation, 
 i Schools of 
 3ute, unless 
 of practical 
 
 13 
 
 »«. p.,„„e^.; .4:,::;: e^e::::: le:.:";::;:^ .'r;r'"' ""'* - 
 
 the ca«e .lands, the lle.ulation, ar. „„, l.f w lurlhcr, alj wo can ««j 1,, ,s 
 
 then,, and Ihe/af.™ welt, /a ed ' " r^ '" '"*","'?',"■•"'«"" <'«l "* 
 
 »„„.!.. „„., int was intended .„ applj ^enLl,, U.\Zl:L',mZ:7.r '" "l 
 assumes, what does it amount to ? Tf nonLf * i ^ , "'"' "'^ "^^- '^^^ s argument 
 
 tho Lienlcnanl Governor and no donbfll f n .1 . "'" ' "" """""mended by 
 
 Coal, ro.r,ed .0, (-'.^^0^ ^r.^.r: ry^;:^^:;":':^"!^""! "" 
 was ultra vires, and we declarprl i- ^niA -t v t . ^' ^ " ^^"'^'^ » clause 
 
 .be AC, and wha. w^ld ^ ■,,; t";^ 1 1""/ ^'j;;;"".";' '*" '»• "'h- p.r« of 
 elause stand, or i, declared void do in. ^ tnl.J. \ f ""«. "he.hor .he 
 
 pnblie fund,. ' '' '"''"'" "''°"' ^'•"n'lnS or withholding the 
 
 " r;iir„r:f li^rrhrbe't:"; f°""-^ " '^i •" ■"^°°" ""^™« -^^ 
 priviie e, wbieb the Ro^ s^'il;::::::'^^,;?;^!:^ rs" -^ 
 
 of the Union. It cannot be denifd th^f tn ih. p • . r ^°"'^ ''* *^« *"n8 
 
 exclusive right of making Lwll^t^attn^ 'l ^uX'^a '' TT'' ^'^ 
 
 have the right to establish a general svstem of ZZZ ' ^l^^^f^^^ «"d they only, 
 
 vince, and all classes and deuLin: olC,^- d ^a :l%rv ? ^ ^'^ "'"'' ^'" 
 rights and privileges protected by section' oVof The BftLbN^rim"'- 'T' *° *'^ 
 Now, what in this case, is the right or privilege cafmd to h!\' ^''' ^^^^•' 
 fected ? Is it a legal right or priviLe thatolll h k I ^''° prejudicially af- 
 
 the Roman C.tholi:. as^a e.ass":!^ ^ J^stares^^^^^ ^^^ ^^ 
 
 bchool ; or ,s .t a legal right confined to the Roman Catholics as a bo7v . 7""° 
 
 equally to all and every of the other denominations of h a" n thfs p" '' '"'""^ 
 
 pable by them of enforcement: or on the contrarv !. ^ ™' '" *•"« l^rovince, and ca- 
 
 having .ligious denomination^ ^^^^i::::^ z::i:::z:^::^- - 
 
 tal circumstances; as, on what might happen to be the religious views of h«r T "' 
 Parish, and then on the accidental result of the election of IruresTnd 80^00??° "^ '" * 
 and on the views of the parties so electa,! «, * . ^™e« '•^"d bchool Committee, 
 and their willin^ne.. to p.,'„it U Z trhol,' .jSZ .tr.trZ' '"^ 
 .n,t.e, had any discretion in the matter, which perLap, i, n^orl tl ,„ d!b „n 1" ■?°'°" 
 al,o dependent on the Board of Education, who had the jenera Iconlr^m . °°' 
 
 dependent .„ eirea„.ta„cc, such a. these,' how can it be fo r d .^.''le'':.7,i ',"' 
 could have been contemplated by the Imnerial Parlianmnf ;, I ^ '^ht as 
 
 ' The Britiah North A^iea Ac^ mrTX^XZllX^I tt' a'' S" °' 
 proprietv be tnrmed a I«o..,l ,.:o.i,t ? c.,-i-_ ., r . , ^ ° "^°^' ^""i with any 
 
 »Ub le/a, ri,ht."an7pVSle^',: How 'i:lt'rbXrhr:n?rcdT°"''' "^ *"' 
 
_ It by no means follows as a necessary legal consequence, that because a majority of the 
 inhabitants of a Parish or School District may belong to a particular persuasion, they 
 would necessarily vote for Trustees favourable to denominational teaching, nor could they 
 be compelled by any legal process so to vote ; nor docs it follow that Trustees when 
 elected even by a majority of one denomination, would necessarily prove favourable to 
 denommational teaching; and by what legal process could they be constrained to assent 
 to Its introduction in the schools ? And again, suppose up to this point all were favourable 
 might not the whole scheme be ignored by the Board of Education ; and how then could 
 any class of persons, as such, no matter to what denomination they may belong, claim of 
 right to control or direct the acts or doings of any of these parties ; or how could Electors 
 Trustees, School Committees, or the Board of Education, be compelled to make any school 
 in any sense denominational, or in other words, to confer on any such class, denominational 
 rights 1^ Surely the rights contemplated, must have been legal rights: in other words, ri-hts 
 secured by law, or which they had under the law at the time of the Union. If any such existed 
 they must have been capable of being clearly and legally defined, and there must have existed 
 legal means tor their enforcement, or legal remedies for their infringement ; for it is a clear 
 maxim of law, that ubi Jus ibi remedium. It was said long ago in a celebrated case, that if 
 a man has a right, he must have a means to vindicate ^nd maintain it, and a remedy if ho 
 is aggrieved in the exercise and enjoyment of it ; and that it was indeed a vain thing to 
 imagine a right without a remedy, for want of right and want of remedy are reciprocal. 
 What possible legal means could any denomination have invoked under the old Parish 
 School Act, to compel any one school to be made denominational, or to require and insist 
 that in any one school, denominational tenets, doctrines, precepts or practices, should be 
 taught or used ? But then it was repeatedly urged upon us, that under the Parish School 
 Act, circumstances might and very often did concur, where schools might, and in numer- 
 ous cases did, become denominational ; but that by reason of section 60 of the Common 
 Schools Act, such was not now possible. The answer is simply this : The inability of a 
 class of persons to have under the Common Schools Act, that which possibly they mi^^ht 
 under certain exceptional and accidental circumstances have had under the Parish Sch°ool 
 Act of 1858, but which they had no right to insist on having, is a damage not occasioned 
 by any thmg which the law esteems an injury.-a kind of damage termed in law, damnum 
 absque v,jur^a and for which there is no remedy. And so, in this case, as there was no 
 legal right to have denominational schools or denominational teaching, there is no iniurv 
 in legal contemplation committed, by the Legislature dealin,^ with the question in such a 
 manner as to present the possibility arising, and consequently no right to have the action 
 of the Legislature abrogated. It may be a very great hardship, that a large class of per- 
 sons should be forced to contribute to the support of schools to which they are conscien- 
 tiously opposed, or be shut out from what they have hitherto under certain circumstances 
 enjoyed and be without remedy ; but by any such considerations, Courts of Justice ou-^ht 
 not to be influenced : hard cases, it has been repeatedly said, are apt to make bad la°w 
 and It has also been justly remarked, that if there is a general hardship affecting a 
 general class of cases or persons/ it is a consideration for the Legislature, not for a 
 Court of Justice 
 
 FlSHEK, J. . 
 
 I concur in the judgment of my brethren, as to the constitutionality of The Common 
 bchools Act 1871 ; but as there are some sentiments in it in which I do not agree I have 
 thought :n a matter of so much delicacy and importance, it was better to read the judg- 
 ment that I had written, than attempt to qualify opinions which my brethren had soVullv 
 considered, ^ 
 
ajority of the 
 suasion, they 
 or could they 
 rustees when 
 avourable to 
 led to assent 
 e favourable, 
 w then could 
 )np-, claim of 
 uld Klectora, 
 ce any school 
 nominational 
 words, rights 
 such existed 
 have existed 
 ■ it is a clear 
 case, that if 
 •emedy if he 
 din thing to 
 e reciprocal. 
 B old Parish 
 •e and insist 
 8, should be 
 Irish School 
 d in numer- 
 he Common 
 ability of a 
 they might 
 rish School 
 
 > occasioned 
 IV, damnum 
 lere was no 
 s no injury 
 
 > in such a 
 the action 
 
 lass of per- 
 e couscien- 
 Jumstances 
 itice ought 
 3 bad law ; 
 affecting a 
 not for a 
 
 8 Common 
 ee, I have 
 the judg- 
 id so fully 
 
 ' (1) Nothing m any such law shall prejudiciallv affect nnv rl^U „« • m 
 
 Catholic subjects, shall be and the same are hereby extended to th./ ^ ? u ?"" 
 the Queen's Protestant and Koman Catholic subjeL t Qul:;'^ "^^^""" ''''''' '' 
 law at fh. n '' '" ""^ ^T'"'"" " '^'''™ °^ ^^P"^''^^ °^ Dissentient Schools exists bv 
 
 B«l., or m «„„ .„, deci,i„„ „f ,h, Oo,er.or General in Colm """""^ " ""' 
 . i. .ecUon. , .„. ,.„ „e„,ea b, .he „er Prl'." ^;^:2^i:^^t: 
 
 for! Zuntn'l"""*"!.''^''' '''' ^"'"'^ °' *'« ^'°''"-« ^'^-h "O'-Pnsed -ianada be 
 
 <.r prmlege. A den<,»l„.li„„a| right „, privilege of iteelf if , T I ' '*'" 
 
 00. .,o„e ™ko The Oo.„o„ School AetVJot", i^U": Sf Irbfa^hu/'-'^ 
 log. «.th re.poo, to . deoomio..ion.I .ehool, whioh . oIm, oI o".1 Lj? '"'1'" 
 
 r;p: "jrsiih'rr^ '^ '^^^ '^"^ *° '^-'^ ='"-1^ " 
 
 AD appears to me, that the first mquirv is_Wljaf ;= - j-,.-^.-_ , ^ 
 
 opinion, it is a school under the ex^^nsiv; govo-nme"nt"of It". T°'' ''"'•"' ' ^" "^ 
 
 tians, and where the tenets of th.^ 7 ^.'"":: "^ «°™e ""e denomination of chris- 
 
 , wnere the tenets of that denomination are taught. But assume that a school 
 
16 
 
 rights they had at the Union ' "^ '"""'" ^" ^'^^ ^"j°^'-"' o^' »'! tho 
 
 it has been superseded h^Th^C '1 SlTerSrVY"^".' ^'° ^"'°"- '' 
 refer to its provisions to ascertain whether Ualttd' T •" "^■''''''^ '"' ^^ '""^^ 
 it did not, then the Act under consi^^lra o h" ^ 1 ^Tof^r'"''" "'°°'' ''' '' 
 
 positive z:;:!:: l ht i ::'i:;r^zr "v'r^^^^ -^ ^""^' *° -^^ ™^"^- - ^^« 
 
 should be non-sectarianla lis provl n il" f ."^'r^'^' ""'^^ ^''^ P^^'^- 
 establishment of such schools " ^"' ^^'^^ ^'^"« P'°^'ded for the 
 
 th^:;:;;c?S;:':^i s^i^ir (tz^/-^^^ ^-i';: ^'-'-«' — ^^-^ - 
 
 sustained by public aid aceordl„rtoh;ron"S^^^ ^7"^' -^/--l'-. distributed and 
 
 and classes of the schools must In the ve' „ T^^^ "'^ Parish,_thc number 
 
 I will now refer to the p'viions of 217 ."■"'' '° ''''" '''''' denominational. 
 
 establishment of a denomi 'at"n s hoo und; •." ''' '' ''"^ ^^ ""^ ""'^''"'^ ^- ^^^- 
 a school. '"^""^ ""'^''' •'' «•• «"y countenance in the Act for such 
 
 inspection of the schools is done atl .^ I ' T"'"'"*' ''^' ^^''''^ ^^ J^^""'^*!""- The 
 is authorized to divt t P^ „^ ^^^'^ ^'^ ^«^«'"- ^ ^^--^ 
 
 District. ' '"**' ^''"' ^"""«t«' ""d appoint one Inspector for each 
 
 o^^^^:1^^::J:^£!''' body -,e rules and regulations for the 
 schools, subject to the ^rde^ :; TheB^^ *'^ ^^"^''^^ ^'^'^ -^ -P-ision of the 
 
 b.r;^::r:: r:r ^: !:^tr:^ ^^ ''-'- ^™^^- — "^ «^-^ 
 
 officers were elected, and subiect TiLT , "'°""' "' "*^^' ^^^^ »' P'^risb 
 
 vision for appointini tSerii cI „f J . -^'f ''? ""' ^'^^''"'*'^«' ^^^^^ *J>« ««»"« Pro- 
 and may dlmiss tl^ Object t^ I: l::,? t^^^^ They employ the Teachers, 
 
 to examine the schools aTdanlr?- \^^ ^' ^""'^ °^ Education. They are 
 
 • amongst tho different stol '' " '' """^ "^""^ ^^ "«— *' -^en so rLed^ 
 
 b " rl;iy7r:fthf yri:f " V^^^^^^ -'^ '-'-^ «-^^- ^lected annuaHy 
 ohildren of ^ol parents at a educed rlj ""' '"^°'"^' *^ ""''' ^^ — -' -^ 
 
 .i^l -XSSo!:' ' '''''-' '-'-' ^" -^ ^-^«^> thus ..0 supplying the 
 
» tho lowest 
 time of the 
 any class of 
 
 rlcy School 
 
 liey are" not 
 
 of all tho 
 
 h sonic un- 
 f^nion. As 
 0, we must 
 ool ; for if 
 Bjudicially 
 
 nd, as tho 
 provisions 
 i for the 
 
 iording to 
 )uted unci 
 e number 
 inational. 
 'Y for the 
 ; for such 
 
 Governor 
 in. The 
 1 Council 
 for each 
 
 for the 
 deemed 
 e power 
 mining, 
 
 1 of the 
 
 elected 
 Pariah 
 ne pro- 
 achera, 
 ey are 
 raised, 
 
 nually 
 s, and 
 
 ig the 
 
 17 
 
 The Teachers both male and fen.ale, were divided into three classes, with an appropriate 
 
 owance to each class from the Provincial Treasury, and with duties, as to the' uhj ! 
 
 taught, prescribed in the Act for each class ""Uccw 
 
 rais'edTthllfr! 'f T,' '''"'' '" '"' '"^•^'^"- '^ " "'"'^^ ="^""' '" "'^ "^ '''—»"» 
 of he .r'? '^^"/'"'r^P'^-' -^ P'--J "- -l-tion of books under the control 
 of he Hoard of Education ; but espressly excluded works of a licentious, vicious or im- 
 mo aUendency or hostile to the christian religion, or works on controversial theolo "y 
 
 ref Zd t in° ' '"' "' T '^^ '" ''''^'' ""^ ''''^' '' " denominational characterls 
 eferred to in any way; and it shews how jealous tho Legislature was in guarding the 
 
 Irwas'mTr?.' ''; "'°°'^ '"■" ""^' •^«"--"'"-' - -tarian ten eney. ""p o. 
 vision was made for the education of the children of the whole people, in schools of every 
 g ade and by teachers of both sexes; and by the Superior sfhod, ihe wants of h gl. r 
 education were provided. The whole machinery of the Act is d signed to mak the 
 sc u^ols common to the child of every man, irrespective of his religions opinions T 
 
 tV'7TfT. '^'''"''"' "'"'^ '"'"^'^"•""^ "^" ""^ ''"'»'"y "'^1' - t^'oher licensed 
 by the Board of Education when they have provided a sufficient school-house and secur d 
 
 for voluntary assessment in tho District, f'arish or County where the rate-payers det r 
 clared to be free to tho children of all the inhabitants 
 
 in T. TITk' ^"■''""■'^^ ^^ "" '^""'■'^ "^' '^'^"•'"""" ■' "'« '»««"•!«« take an active part 
 
 Government " '"'"■""" °'''^ "''""'"'' ^"''J*^^' '^ ''^ ^~' -"'-' o/T. 
 
 The local agency is exercised, and the local officers appointed, in the same manner as 
 
 object. Neither clas. creed, nor colour, affect or influenoe the one more than the other 
 Th only qual. eation for the electors of any officer is that they are to be rate- paye son 
 real or personal property, or income. No class or creed had, under the Act, any peeufiar 
 N w wh" " ,f ;,f "^-' .«-~' 0^ the whole Province, or in any Parish or' ch, 
 Now, when all this machinery for working the Act relating to Parish Schools had been 
 m de, ,s It no a striking proof of the determination of the Legislature to avoid the verj 
 thing which It IS contended the Act authorizes; by restricting the power of the BoarJ 
 
 the sthlT-r ""'' """'r T' ''^^"^''""^ '" ^'^'^ -P-^- -^ -P-->y excludtig fTom 
 te School Libraries works hostile to the christian religion, or works on controvers 
 h logy ; while 1 left the inhabitants free to elect their local agents, who should emZ 
 the teachers, and look after the schools. To secure to every «ian, and the child of every 
 man, a just equality with regard to his religious faith, it enacted, in effect, that the great 
 
 ^Ue'in'rS t't"'^^'"'' '' '"^"'""^^ '" ''^ -•^-^^ b^t there ifouTd 
 
 in rillr^ denominational school would that be, where the master would not be aided 
 n, hi dogma ic teaching by the writings of men of his own faith ? When a denomina 
 
 on our Statute Book, and examine its provisions. I will refer to the Act ineorporutinir 
 held «,«„ the s.,d oremiM., ««„,, to what i, »o„tai„ed i„ ce,t.i„ Note, of th. N., 
 
I'Nhud by hin, " "°"'J' ««portc(J to have been written niid pub- 
 
 Take tlio Chartprof tbo M-,,),. « i i 
 <^r ao,...atic teachi.., in n.;;!! i t:^:^ 1^ ,7 '^^' r.'""" «"'"-^-' P-inion 
 ' ounsel on the „r,u„.ont on thi. n.Ie as o/ L r 1 T\ '"'' """ ^'"'"'''^ '^^ V the 
 "'e category cootcnded for. ' """*^'^'"' "* '''« '"^"i^y. if they are within 
 
 " To provide for the csfai.Ii.snmoi.t i-,wn,1 ,■ 
 -d the seleetion of Hooks to ^.^Z^ ^T^r' ^°7""-^ "'' «ehooI Libraries, 
 wnmora! tendency, or hostile to the nhris ^ "" "'"'f "' " "«""!"'»- vicious, or 
 
 >f'all he admitted." " "''»'""' "•• «'"''ks on controversial theology, 
 
 It has been urged that the .sixth para..ra,,h of •. .• o 
 toach.ng. I think no one ean read hat"sei„ ,;:;;'•; ^' ?."""'«"-'-'J de„„„.i„ationaI 
 contrary. The words of the para-.-aph are -' "'" '•"" " ''""'^'^ ^'^^ ^'^-'i' 
 
 "Kvery teacher shall take dili"vnt c,,,,.' .,. i 
 the minds of .he children eon.n.itt;, L ; 'c 7 'f "'^"^""" '^ '"'1-- «" 
 
 and justice, and a sa.red regard to truth a..d' h '";"'^"'l'''-" "^ Christianity, ...orality. 
 
 -nity, and a universal bonllenee ti y Z !) ^ ' V"' 'f """"•^' '«^"'^^- '- 
 and temperance, order and deanline s, and .i ;^, '^ '"'"? 'f^' '''>"*''"^' "'"•^-"^ion 
 
 human society." ' "" """^' ^"'u«« which arc the ornaments of 
 
 Surely it cannot be disputed that th's e..„ hn l ' • . 
 or, in the language of the statute, with u „tt"' ""^ de"on.inationaI teaching, 
 
 There are certain great fundament ;:':;ri'sr"-:""''' ''"'"^'^• 
 be enforced without trenching upon debatahl gl^. ''I^k: ^l.^r^" '" "\ '""* ''''' 
 
 the Legi„aturcVoceeds f^rtlr ^e^^: S: ''^ Tf"'' '" ^''" ''"-'' ^^'^'^^ 
 «tudy in or from any religious book r join i^ " ^"^ / "" ^' '"^'^"''^ '' '^'^'^ '"• 
 parents or guardians." Here is a po.;itive ea.ct nenfr ,''"'""" "^''''"^ '" ^^ ^'^^ 
 
 Knowing it to be possible for a desilli,,! T "T' ''^""""'"^ti^n^'l teaching, 
 press upon the minds of the children the rindl^' of"", '' "'"' °' ^'" ""''^"•"'^^ ^" - 
 ■stealthily to teach doctrines of a denon ir . ' ^'"-'.^t.anity, and all other virtues, 
 
 child from the influence of such te ^g ' Lir'"'"'" ^''^^"^"^^' -'^ '° P-'ect the' 
 draw the child from any such teaching 'f'o;Tr" '"■'"''"''" ''^''^^'^'•'^ °"^ 
 such a tendency. =" °' ''""' •'*^'"'"» '" «ny act of devotion having 
 
 The paragraph then proceeds thus-- and the P,.,..) r lm ■ 
 
 Book. It i, the common s,„j„j „. lii,,, . i " "'"''""'? " "»' « a<!nomiMtional 
 lono.1 Stl..trte„th.,„e,,i„„°„f °Y^ ' ^.''^° ."''''« ' I' i« »aid to bo a„ hi.. 
 
 - at.fl, , h, Jrt, „,„a l„r ,1, on ,ho ground that it „., 
 
'3'. A. >l.,aiid 
 ttcn mid pub- 
 
 lict provision 
 red to by the 
 cj arc within 
 
 IcH the whole 
 t>f tho fourth 
 ucation. It 
 
 )1 Jiibrarieu, 
 I, vicious, or 
 al theology, 
 
 oniiniitional 
 cts the very 
 
 impress on 
 f, Hioruiity, 
 
 oylty, hu- 
 
 nuideriition 
 nanients of 
 
 I teaching, 
 
 , (hut n:ay 
 be Mount, 
 
 1 Schools, 
 0* read or 
 to by his 
 ching. 
 ty to im 
 !• virtues, 
 otect the 
 ind with- 
 1 having 
 
 ?uIation, 
 g of the 
 
 and all 
 Jould be 
 national 
 they all 
 an his- 
 f one of 
 t it was 
 
 
 10 
 
 illfrd' " '"' '■"""^'"" -' ^""^-- ^-- «'• ^^e -^ii- principle, of .orality 
 
 that Hon.e words, Hon.e ixpre.sil o nTlJI ' • '^^ ^^'''"^^'' *^"'''""'' ''»'J<'«» 
 -ry Kngli«h version, and reco^^i ' alt l vr en' r^ •"""""'^ ''"''''' '" ^^ -'^•- 
 of such words, expressions, and sentonr l'-"K»".ore correct interpretation 
 
 required b. their parents or guar-nrr^rtpoXt^ri-rV';''^^^^ "^""' ^^ 
 the very word. " without note or comment " of tl ! . . l ""'" °' «°'""'«nt; 
 
 intention of the I.c^Mslature. ' ''•'""'^*-"'^'««. "^e significant proofs of the 
 
 Assuming that the Hible is a denon.inational book and I o„„n,. ,!,• . 
 «er,ousIy contend that it is, and that this provision ere t'o, „ rid . ""^ ""' '^'" 
 
 if you please-that will not help the nlJrircs argunb'TA '"""'""''"""' "^'^^ 
 or privilege which a class of persons hnrl I v I . r ^ '^ *'"''' ""' '* '» " ''ght 
 
 Parish School, not in a Deno^nar^ LJ : I i'""' ^ '": ''^ "'^'° '''' '" ^ 
 British North Anicrica Act, 1867/ eve., if it Ixistl " " "''^'* '""'"''^ ^^ ' ^^' 
 
 scLrrtzri: zr\i!;::rr r i" ;'-^ ^"^ ---^ '» ^-^«^ 
 
 not important. Every other Act ^li h co f r ' '" "'' ''"^ ""-cndn.ents, which are 
 lege with respect to Denonainntt alt lis f:';!''"'', 'rT''^'' " "^'^^' °' P"-" 
 
 enjoyed by any class of persons unde ^ su h U ^t j^^^^ "° "«"' ^ P-''^^^ 
 by tKe Act under consideration prejudicially or in any way itffected 
 
 School.. »Utot.„t,..l|y ,1,0 „,„„ „ ,^„ ^„ „f J j.g^ ^^1^^.^^^ ^^ ^ „,^^ 
 
 Tbo dotie. of ll„ Supori„tc,„lo„, ,„e Iho B.n,c. 
 arises from the differLt modes Z:;;^ the s^l^ ' "'^^^"^^ ''^^ ' ^^ ^-»-. 
 
 by a^ti;^::; '^k:i.^:i:!r::r-' '-''''''' '^ ''- ^"'^-^^-^ ^« ^-^^ed 
 
 the different modes of payinrandrPPorUn ' hT "^ ■•^, ^^ -'^'"S this out. and 
 difference. In other respects thisAc^nrn.^ r \ "'"' '^'' '' ^"^°'^««' i« ^^e only 
 the same means. ^ ' "^'^ P'"'"^''' '^^'- ^^'^ ""^^'^^n' of the same object by 
 
 Th^sz? T^zz:'^tn::s:^^' Tt^-°^ ^^° ^^^'^ - ^'^ -^-^«- 
 
 Parish Schools. If it were otLr^J^ T ,. ^ "^^ ^"' ''' "« '" ^^^^ ^°t "lating to ' 
 
 the schools could be shir rbr^LroiV" '"^ ^'^ ''^''•" '"- -^"--' -°- 
 
 nif V^^"«""'"*' '' ^''•^ '^°"t«°<led that 
 
 ngbis ul a Class ul persons. 1 confess T w^.. „„ u, . j"- "^ intcrfcrca witn tiie 
 
 ment upon the question. How if he T nw .' '^'''°''' "^' ^''"""S "^ th'^t "«"- 
 
 ilow, If the Law were good, a bad Regulation-if such there 
 
20 
 
 Wa«-rouM affect it ;' A««u., tli« th •- contention U correct, an.l thut it prejudicially 
 affo t. the right that a cl.^ ,r ^on i^ „t e,.e »:„!„„, ,«,,, a ri^ht, i( it exUted. i. 
 not .aved by • f',. British N- >n<, ,, .efle. Act, mi;' Ucause it would bo a right or 
 prmlego with re.poot U. ^ Kr.«h 8ch. ' and not to a df.../«.inati(^n.l school. 
 
 I cannot dmovor th^ i,V« Regulations have .n> thing to do with rhe question of the 
 power of the Ufs^hnm to pass the Act, or can forn. any guide in tM nu.rprotation of it. 
 It appears to fl.e that urod.r either of the Acts of 1858 or 1871, it was competent for the 
 Board of KducatJot r.o ™.,k« „„^ „f j^„ R,g^,^^i^_^ referred to ; whether they exercised 
 their powers wisely or ^i^wlsely, u„J,r the Act of 1871, is anothe- question. 
 
 The propriety of the Rc^ul.t/. ,l« obje( h^d to is a question of pa^»v.n p„lioy, upon which 
 I am not called upon to expre.« „ opinion. I may, as an individual, entertain a very 
 strong opinion as to its policy As u Judge, all I feel called upon to do is to consider it., 
 legality, and for myself, on that point, I entertain no doubt. 
 
 I am therefore of opinion that the Rule should be discharged. 
 Wktmobz, J. 
 
 While fully concurring in the opinion of my learned Brethren as to the constitutionality 
 of The Common Schools Act 1871,' I do not wish to be understood as expressing a par- 
 ticipation in any doubt whatever us to th« Regulations of the Board of Kduontion. 
 
 I think the only question properly before the Court is, as to the Act itself, and not as 
 to the Regulations. Wo are only called upon to decide whether or no, the Schools Aot. 
 or any part of it, is ultra vires ; and upun the decision, the Assessments, to set which aside 
 the application is made, are to be affected. 
 
 If the Act itself is not ultra virrx, I do not sec how the promulgation of any Regulation, 
 ever .DpoR..va- ,t to be one which the Schools Act would not warrant, or to be in violation 
 ot th.^roviR, of Section 93, sub-section 1, of ' The British North America Aot, 1887 ' 
 ^an affect the .use, any more than Assessors acting in violation of the law under which 
 an Assessmen .s imposed, would affect the law authorizing the Assessn.eut. In such case, 
 If the Assessment is imposed in a manner not warranted by law, parties aggrievpd would 
 have their remedy for obtaining relief; and so, with reference to a Regulation sought to 
 be established by the Board of Education If that body should exceed the power given 
 by law in such case, the Regulation would not have the support of law to uphold it and 
 therefore could not be maintained; but the law,. nevertheless, would remain in full force 
 and authority. 
 
 The application to this Court is simply to sot aside an Assessment in consequence of 
 the invalidity of the Law ; it does not touch the Regulations ; and though they have been 
 referred to by Counsel in the, -. rgument, it does not seem to me they are before us in such 
 a way as to call for a decision, or the expression of an opinion upon any one of them. 
 Indeed, I do not see that a most positive and direct expression by the Court, as to the 
 legality or illegality of any of the Regulations, would in the slightr^,-;! degree affect the 
 constitutionality or unconstitutionality of the Law ; and I therefore purposely abstain from 
 expressing my opinion upon any one of the Regulations. Should a question arise respect- 
 ing the Regulations, or should a decision upon them be necessary for any other matters 
 before the Court, then, of course, I would be required to express my opinion ; until it 
 does arise, I decline doing so : to ■> ,. an expression of Cockburn, C. J. in Rimi-ii vs. Van 
 Praagh, (L. Rep. 8 Q. B. 4,) " It v ' le time enough to do so, when the necessity arises." 
 
 itule for a Certiorari diseharsred. 
 
 k