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 THE 
 
 MANITOBA SCHOOL CASE, 1804. 
 
 E D I T E ID 
 
 KOK 
 
 THE CANADIAN GOVERNMENT 
 
 HV THK 
 
 APPELLANTS' SOLICITORS IN LONDON 
 
 PRINTED 
 
 KOIt 
 
 THE aOVERNMENT OF THE DOMINION OF CANADA 
 
 BY ' 
 
 REYNOLDS BLOGG & COPE, 
 4, Union Court, Oi,d Rroad Street, 
 
 London, E.G. -^ 
 
 iHiin. 
 
'\ 
 
 2^ ffL3 
 
 \ 
 
 < 
 
5 
 
 CONTENTS. 
 
 i 
 
 \ 
 
 Editor's Note . .. .. . . ^ 
 
 Appellants' Case in the Privy Council - ' . . 
 
 Respondent's Case in the Privy Countil 
 
 Arguments in the Privy Council— 
 
 First lh,y.— Mr. Blake's Speech - . 
 
 .SVcowrt' /;r/v.— Same continued. 
 TAm/ />>^;)'.— Speeches on the Death of the Right 
 Honourable Sir John Thompson - 
 Mr. Ewart's Speech - 
 
 Mr. Cozens-Hardy's Speech - 
 Mr. Haldane's Speech - 
 Mr. Blake's Reply- 
 Judgment of the Judicir.l Committee of Her Majesty's 
 Privy Council 
 
 rA(iK 
 iv 
 
 10 
 
 22 
 
 57 
 
 1/4 
 
 1/5 
 184 
 
 ail 
 
 260 
 
 267 
 
 p* 
 
 
»v. 
 
 RnrroRS* note 
 
 The Appellants' and Respondent's Cases and the Judgment 
 are reprinted from the official documents, and the arguments of 
 Coun^jl and remarks of the learned Lords who heard the Appeal 
 are taken from the shorthand writers' :iotes. Thanks are due to the 
 Counsel who took part in the Appeal for revising the manuscript 
 notes of their arguments immediately after the conclusion of the 
 ' Case. 
 
 R.B. D. C. & B. 
 
 4, Grkat Winchkstek Stkkkt. 
 London. 
 
 31 January^ TffgS. 
 
 f 
 
 I 
 
 ♦ 
 
 ).. 
 

 In tin ^DvibH ©ounril 
 
 No. 21 ()n8!)4. 
 
 ON APPEAL FR(»r TlfE SUPREME (OURT OF 
 
 CANADA. 
 
 //* f/t«f Mattor of ccrfani St<ttKtoft of thr Prort'nre of 
 M(Uiitoh(t rcldtinfi fo Eilncdtion, 
 
 Uktwkkn 
 
 (JERALD F. BUOrilY and Noo Clicvrier 
 and lloiiry Napoleon IJoiroaml Roo-er Goiilet 
 and Patri(;k O'Connor and Francis McPhillips 
 and Frank [. Clarke and Josi'ph Leconiie 
 and Michael lluglios and Henry JJrownrigg 
 and Frank l>rownri»ig and Tlieo])lnhis 
 TcHsier ami li. Arthur Lt^veque and Edniond 
 Tnidi'l and Josc])h Honore Ocfavien Lambert 
 and Jean l)a])tiste Poirier and (Jeorge 
 ('outure and J. Ernest (yvr and Franyois 
 Jean and Davdd Dassault and Charles 
 Edouard Masse and Fran(;ois Ilardis and 
 Jost^pli Jiuron and l^ouis Fournier and 
 Phileas Trudeau and Edouard Guilbault and 
 HouHiald Guilbault and Ah^honse Phaneuf 
 and W. Clooplias German and Edward R. 
 Lloyd and Louis Laventure and Louis J. 
 Collin, all of the Province of Manitoba, in 
 the Dominion of C'anada, on behalf of them- 
 selves and of all other ])ersons forming the 
 Roman Ciitholic minority of the Queen's 
 sul)jeets in (he Province - Appellcmts 
 
 AM) 
 
 THE ATTORNEY-GENERAL OF MANI- 
 TOl^A - _ - _ Ucfipomletit. 
 
 CASE OF THE APPELLANTS. 
 
 « 
 
 1. This is an appeal from the Judgment of the 
 Supreme Court of Canada rendered on the 20th February 
 1894, upon a Case referred by the Governor-General in 
 
2 Mamtoha School ('ahk, 1804. 
 
 Council lo tliG Supn^ino Court, orCyUiKuhi lor li(;arin«j,';iu(l 
 conHidcration ])nrsuant to (ho proviHions of tlio Act ro- 
 sju'cting the Suprouic and Exch('(|Uor ('ourtH (UcvIscmI 
 Statutes ()r(^aua(hi (Chapter l.'}5), as aniciuhMl by an Act 
 ot Canada passed hi 181)1 ('A and 55 Vic, cap. 25, 
 BCC. 4). 
 
 2. The questions involved turn upon the construction 
 of certain sections of the IJritish North America Act and 
 of the Manitoba Act and ui)on the elfect of certain Sta- 
 tutes of the Province ot Manitoba. 
 
 3. In the year 1800 certain Acts were passed by tlu^ 
 Leg-islature of Manitoba, vi/. : — (Jhapters 37 and 38 of 
 53 Victoria entitled respectively '^ An Act rcNjtcctinf/ the 
 Dt'parttiient of Edncntion,^^ and " An Act respcdinj PuJih'c 
 >S'r/^oo/.s' " which alfected very injuriously certain rights 
 and privileo'cs of the Roman Catholic minority of the 
 Queen's subjects in that Province in relation to education 
 ac<[uired by them under various prior Statutes of the 
 Lc,i!,'islative Assendjly of Manitoba, as well as rii^hts and 
 privik\u,'es possessed by them before the creation of 
 Manitoba as one of the Provinces of Canaihi. 
 
 4. Manitoba was created a Province bv the Act of 
 Canada commonly known as " The Manitoba Act 1870 " 
 (33 Vic. cap. 3). This Act was confirmed anil declared 
 to bo valid and etfectual by a Statute of the United 
 Kingdom (34 Vic, cap. 28). The second section of the 
 Manitoba Act 1870 jn'ovides that from and after a day 
 named " the provisions of the Pritisli North America 
 " Act 18(i7, shall, except those parts thereol' which arc 
 " hi terms made, or by reasonable intendment, may be 
 " held to bo specially applicable to, or only to affect one 
 " or more, but not the whoh; of the Provinces now com- 
 " posing" the Dominion, and except so far as the same 
 " may be varied by this Act, be applicable to the Pro- 
 " viiice of Manitoba, in the same way, and to the like 
 " ext(mt as they apply to the several Provinces of 
 " Canada, and as if the Province of Manitoba had been 
 " one of the Provinces originally united by the said 
 " Act." 
 
 5. Provisions are made by the 93rd Section of the 
 P)ritisli North America Act, 1867, and the 22nd Section 
 
Manitoha School ('ask, 189 1. 
 
 8 
 
 of 
 
 .1 
 
 ol'llic Mimitol)a Act, l.S7(), I'oi* an a]ip('al to llic flovrnioi'- 
 (Jt'iicral ill ('oiiiicil IVom AcIh ol' tli;' Ijc^'islalivo 
 Asscinldy allrctiiin' the riii'lits and privilc^cH aforesaid. 
 
 11. Si'ctioii il.'Joftlu' lU'itisii Xorlh America Ad. ISiw, 
 j)rovitl('S as lollows : — 
 
 '• III and for each IVovincc tlic Lcn'ishiliirc may cxcln- 
 " sivcly mako Laws in relation to ciliicatiDii. siiliject and 
 •' awMirdiiiH' to iIk^ rollovviii,i;' provisions : — 
 
 '• (1.) Notliini;- in any Hiu-li law shall prejudicially 
 " alfecl. any ri,L;iil or |)rivil(\i4'e with respect to Denonu- 
 " national Schools which any class of p'.'rsons havo 
 " l»y law in the l'ro\inc(.' of the Union. 
 
 "(2.) All the powers, privih>^vs and d 'ies at tlui 
 " Union hy law conferred and iinposci in rp[)er 
 " Canada on the se[)arate schools and School 'rrustooH 
 " of lh(KJiieen's Uonian Catholic Snhjecis, shall bo 
 '' and the same are herehy exteiidi^d to tlie Dissen- 
 " tii'iit Schools of tlu; (.()iiec^n's I'rotestanI and llomau 
 " Catholic sul)je(!ts in C^nelxjc. 
 
 " (H.) Where in any Province a system of s(3parat(^ 
 " or Dissentient Schools exists l»v law at the rnion, 
 " or is thorcaftor ostahlishod by the I^e^'islat lire of 
 " the Province, an appeal shall Tk! to iIk^ Goveriior- 
 " (ieneral in Council I'roni any act or decision of any 
 " Provincial authority aifectin^- any ri^ht or [)rivile^"e 
 " of the Protestant or Roman Catholic minority oi' tlio 
 " Queen's subjects in ndation to eilucation. 
 
 " (4.) [n case any such Provincial Law as IVom lime 
 " to time seems to the Governor-General in ('ouncil 
 " ref[uisiti,' for the due execution oL' the ])rovisions of 
 " this section is not made, or in case any decision of 
 '"the Governor-General in Council on any appeal 
 " under this section is not duly executeil by the pro[)er 
 " Provincial Authority in that behalf, then, and in 
 " every such case, and as far only as the circumstances 
 " of each case re(piire, the Parliament of (Janada nuiy 
 " nuike remedial Jjavvs for the due execution of tlie 
 " provisions of this Se(!tion, and of any decision oi" 
 " the Governor-General in Council under this Section." 
 
4 Manitoha SciiuuL ('ask. isyi. 
 
 7. Section 22 1)1' I ln' M;mit(»l):i Act, l-STO, provides uh 
 I'ollowH : — 
 
 " In and for llu! Province, tlie said Le^-iHlatiire may 
 " excliisivrly make liaws in relation to e(lneation, 
 " Hnl)ject and accordine- (o tlio rollowin;^,' provisions : — 
 
 " (1) Nothin<]j in any sucli Law siiall preiudicially 
 " all'ect any ri^lil or priviie.i;e with respect to I)eno- 
 " minational Schools which any chiss ol persons have 
 " by l^aw or practice in liie Province al the I'nion. 
 
 " (2) An Apiu'al shall lie to the (lovi'rnor-CJeneral 
 " in ('onncil from any Act or decision of the Le^is- 
 " latnre of the Province, or of iiny Provincial 
 " Anthority, alVecting any ri^^ht or privile^'e of the 
 '• Protestant or Roman Catholic minority of the 
 " Qneen's snbjects in relation to lulncation. 
 
 " (3) In case any snch Provincial Jiaw, as from 
 "time to time .^eems to thc^ Governor-(«eneral in 
 " Conncil re(|nisit(! for the dne execntion of the 
 " provisions ol" this secticm is not made, or in case 
 " any decision of the Oovernor-Ciieneral in Conncil (m 
 " any appeal nnd^r this section is not duly executed 
 " by the proper Provincial Anthority in that behalf 
 " then, and in every such case and as far only !is the 
 " circnmstances of eacli case rc(inire, the Parliament 
 " of Canada may make remedial laws for the dne exe- 
 " cution of the provisions of this section, and of any 
 " dc>cision of the (liovernor-dteneral in Council under 
 " this section." 
 
 8. Memorials and Petitions were ])resented to the 
 Governor-General of (Janada in (-ouncil and amon^ji," the 
 rest one by the Ap])ellants and by many other Uoman 
 Catholic inhabitants of the Province and on behalf of 
 the Poman (Catholic ^Minority of the Qneen's subjects in 
 the Province by way of appeal from t-he two Acts of 
 Manitoba of 1890 before referred to, which petition 
 prayed as follows : — 
 
 " (1) That Your Excellency the (iovernor-General 
 " in Conncil may entertain the said Appi^d and nuiy 
 " consider the same, and may make snch ])rovision 
 " and give snch directions for the hearing*" and consi- 
 
 ♦ i^ 
 
 'A 
 
♦ 
 
 1 
 
 i» 
 
 Mamtoha Sciinoi, Cask, 1H94. 6 
 
 " (Icralion of lli.' s;ii(l Ai»|>cal jih may 1)0 llioii^lit 
 '• ]»r(»|i('r. 
 
 " (I'l TliMt il iiKiy lie (l('clar('(| ili;»l |Im> said Ads (53 
 "Vic, ("haps. 'MX- :\X] do prejudicially aH'ccI iIm! 
 " ri^-lils and privilcn-rs witli rc.i^ard to dciioiiiinafioiial 
 ''schools udnch Koiiiaii Calhojics had l»y law or 
 '• piaclicc ill the Province al the I'liion. 
 
 '* (M) 'IMial it may 1)0 declared that tlu^siiid last men- 
 " tionecl Acts do alVeet the j'i,i;lils and jirivile^c's of 
 " the IJonian Catholic minority of the (^)iieeirs siihjectH 
 " ill relation to education. 
 
 '•(4) That it may he (h-clai-ed that to "^'oiir Kx- 
 " celleiicy t he ( iovei'iior-lieiiural in Coimcil, it seeniH 
 " re<|i',isite that the provisions of the Statutes in loreo 
 '• in tlu^ I^rovince ol" Manitoha prior to the passa;i,'(f of 
 '• the said Acts, should he i-e-enacteil in so far at least 
 " as may h(> necessary to seciiri' to the i{oman ( 'atholics 
 " in the said IVovinee the ri;^ht to hiiild, maintain, 
 " equip, manage, conduct and sup|)ort these schools in 
 " the manner provid(,'d for liy the said Statutes, to 
 "secure to tliem their pro[)ortionate share of any 
 " i!,'rant made out of the puhlic funds lor tiie pm'poses 
 " ol' education and to relievi; such memlx'i's of the 
 " Koman Catholic Church as contrihuto to such Ixomaii 
 " Catholic Schools from all payment or contribution 
 " to the support of any other schools, or that tlu^ said 
 " Acts of 18"J() should he so modilied or amended as to 
 " cifect such purposes. 
 
 " (5) Ami that such further or other declaration or 
 " order may be made us to Your Excellency the 
 " Governor-General in Council shall, under the cir- 
 " cumstances, seem pro|)er, and that such directions 
 " may be ^iven, provisions made and all thing-s done 
 " in the premises lor the purpose of ailbrdino- relief to 
 " the said Roman Catholic Minority in the said 
 " Province as to Your Excellency in Council may 
 " seem meet." 
 
 I). Thereafter the (Jase hcreinln'rore mentioned was 
 referred to Ihe Supreme Court of Canada, by which Case 
 
M 
 
 \NiTOHA School Case, 1894. 
 
 various (inoKtioiis wore siibniillcd lor lliu opinion of llic 
 Court. Tlieso wvi'v as follows : — 
 
 " (1.) Is the Appeal referred lo in tlie said Memorials 
 " and Petitions and asserted thereby, siieh an Ap])eal 
 " as is adniissal)le by sub-section il ol' s-'ction 1)3 of the 
 " IJritish North America Act 1807, or l)y snb-section 
 " 2 of section 22 of the Manitoba Act. 33 Vic. (1870) 
 " chapter 3. Canada? 
 
 " (2.) Are the grounds si't Ibrth in the Petitions and 
 " Mcnnorials sucli as may be the subject of appeal 
 " nnder iho authority of the sub-sections above 
 " referred to, or either of them? 
 
 "(3) Do(>s the decision of the Judicial Connnittec 
 " of the Privy Council in tlie casi3s of l?arri>tt /,'. the 
 " City of Winnipeg, and Jjogan v. the City of Winnipeg 
 dispose ot or conclude the iippiication for redress 
 based on the contention that the rights of the Roman 
 Catholic minority which accrued to them after the 
 Union under the Statutes of the Province liaNO hccn 
 int(>rfered with by the two Statutes of 1800, com- 
 plained of in th(! said Petitions and Memorials? 
 
 " (4) Does sub-section 3 of section 5)3 of the British 
 " North America Act 1867, apply to Manitoba? 
 
 " (5) Has His Excellency the Governor-Cxeneral in 
 " (Jouncil jiower to make the declarations or remedial 
 " orders Avhich are asked for in the said Memorials 
 " and Petitions, assuming the material facts to be as 
 " stated therein, or has His Excellency the Govern- 
 " Gencn'al in (Juuncil any other jurisdiction in the 
 " premises ? 
 
 " (6.) Did the Acts of Manitoba relating to Educa- 
 " t ion, passed prior to the sessi(m of 1890, confer on 
 " or conthiU(3 to the minority a ' right or piivilego in 
 " relation to education ' within the meaning of sub- 
 " section 2 of section 22 of the IVIanitoba Act, or 
 " establish a system of separate or dissentient schools 
 ' wnthin the nu'aning of sub-section 3 of section 93 of 
 the Ik'itish North America Act 1867,' if said section 
 " 93 be found to be applicable to Manitoba : and if so 
 " did the two Acts of 1890 complained of, or either of 
 
 u 
 u 
 
 u 
 
 u 
 u 
 
 -> l«.., 
 
'm 
 
 )r ilie 
 
 Manitoma School Case, 1894. 7 
 
 " tliom, affect ;mv ri<;lil or privil('<2,-o of (lie ininorily in 
 " such ;i iiKinncr tluit an appeal will lie thereunder 
 " to the Governor-General in (Council." 
 
 10. Oonnsol for tlie Appellants and other Roman 
 Catholics as aforesaid and for tlie Province of Manitoba 
 appeared before the kSu])renie Court as did also the 
 Solicitor-General for Canada whoa[)peared to sul)init the 
 Cast! on behalf of tlie (h'ovvn. The counsel of Manitoba 
 not desiring to be heard, the Supreme (.'ourt jjursuant to 
 section 4 of the Canadian Act of 1891 bclbre referred to, 
 re(]uestcd a counsel to argue the case as to tlu^ interest 
 of Manitoba, and such last mcntionc*! counsel thereupon 
 appeared and argued the ('aso lor Manitoba as did also 
 counsel I'or the A])|)ellants and other Kon.an ( 'atholics as 
 albresaid, but the Solicitor-General did not desire to bo 
 heard. 
 
 11. Afterwards written Judgments were delivered by 
 the five judges Avho heard the arguments. The result 
 was to show a majority of three Judges ont of live for 
 a negativ(> answer to all of the quc^stions. 
 
 The Chief Justice answered all the questions in the 
 negative. 
 
 Mr. Justice Fournier answered the third (piestion in 
 the negative and all the others in the ailirmative: 
 
 Mr. Justice Taschereau answered the third quest ion in 
 the affirmative and all the others in tlu> negative : 
 
 Mr. Justice Gwynne answeri'd the first, second, fourth 
 and fifth questions in the negative, the third in tlu? 
 affirmative, and the sixth as foUovvs : — '" The Acts of 
 1890 do not nor does either of them affect any right or 
 privilege of a minority in relation to education within 
 the meaning of sub-section 2 of section 22 of the jMani- 
 toba Act in such maimer that an a])peal will lie there- 
 under to the Governor-General in Council. The residue 
 of the (luestion is answered by the answer to (luestion 
 No. 4." 
 
 And Mr. Justice King answered all the (picstions 
 except the third and fourth in the affirmative, the third 
 in the negative and to the fourth he replied : — " Yes, to 
 
s 
 
 Manitoba School Cask, 1894. 
 
 the oxtcnt as oxplaiiied by the above reasoiiB for my 
 opinion." 
 
 12. The Appellants submit that the answers of the 
 majority of tlie Supreme Court are wrong, save as U) 
 question 3, and that the answers to all the (piestions save 
 question 3 should be in tlu? affirmative ; and that th(^ 
 judg-ment should be varied and it should bo declared 
 accordingly, for the following among other 
 
 iip:asons. 
 
 (1.) ]5ecausc there are several marked distinctions 
 of the same character, between the language of the 
 first and that of the sec(md sub->iection of the clause 
 of the Manitoba Act, ami between the language of 
 the first and that of the third sub-seclion of the 
 clause of the British North America Act, shewing 
 that the first sub-section of each clause relates to a 
 different class of cases and to a ditt'erent condition 
 from that dealt with by the later sub-section. 
 
 For example, sub-section 1 of the Manitoba Act 
 refers to a right or privilege with respect to 
 denonunational schools ; sub-section 2 to a right or 
 privilege in relation to education. 
 
 Sub-section 1 refers to a right or privilege of any 
 class of persons, whether such class constitutes a 
 majority of the population or not ; sub-section 2 to 
 a right or privilege of the Protestant or Koman 
 Catholic Minority. 
 
 Sub-section 1 relates to any right or privilege 
 existing by law or practice at the Union ; sub- 
 section 2 to any right or privilege existent at the 
 date of the Provincial Act or decision complained 
 of, although created after the Union. 
 
 Sub-section 1 is limited to cases in which the 
 right or priviK.>ge is pr(!Judicially afl'ected ; sub- 
 section 2 is not so restricted, and would thus extend 
 to a case in which the relative status was altered by 
 an improvement in the position, even though that 
 of the minority was not in itself changed for the 
 worse. 
 
 <v 
 
Manitoba School Case, 1894. 
 
 
 
 (2.) Bucaiise an attempted law in violation of the 
 earlier sub-sections of each clause would be ultra 
 i'ircs and absolutely void, and any attempt to enforce 
 it could be successfully resisted in the Courts by 
 imy person ag'^ricjved. Tliese sub-sect ions are thus 
 complete in themselves, and no appeal to the 
 (Jovernor-in-Council, nor any decision or leg'isla- 
 tion by either Legislature, would be requisite, 
 appropriate or useful. But the classes oi" cases 
 dealt with by the later sub-sections are those in 
 which the legislative action is not ultra rires or 
 absolutely void, and in which an api)eal and decision 
 or legislation might be reipiisite, appropriate and 
 useful. 
 
 (3.) lU'cause the IVIanitoba Education Acts passed 
 prior to 181)0 did confirm or continue to the 
 minority a right or privilege in relation to 
 educati(m within the meaning of sub-section 2 of 
 the Manitoba clause, and did establish a system 
 of separate or dissentient schools within the 
 meaning of sub-section 2 of the British North 
 America clause; and the Manitoba Acts of 181)0 
 did affect a right and privilege of the minority 
 in such sort that an appeal lies to the Governor 
 in Council. 
 
 (4.) Because the appeal is admissible under the 
 law ; the grounds set forth in the petitions and 
 memorials are such as may be the subject of an 
 appeal ; the decision in Baiictt v. Winnipeg does 
 not dispose of or conclude the contention of the 
 minority ; sub-section 3 of the British North 
 America clause does apply to Manitoba, and His 
 Exc(dlency the Governor-General in Comicil has 
 power to make the declaration or order prayed for, 
 or to give other appropriate relief, if it shall seem 
 i-ixpedient to him so to do. 
 
 EDWARD BLAKE. 
 JOHN S. EWART. 
 
10 
 
 Manitoba School Case, 1894. 
 
 fin tfte ^^ribg ©ounciL 
 
 (No. 21 of 1894.) 
 
 ON AITEAL FKO^r THE SUPREME COURT OF 
 
 CANADA. 
 
 In the Matter of certain Statutes of the Province of 
 Manitoba relatinr/ to Education. 
 
 Between GERALD F. BROPHY and Noe Cliovrior 
 and Henry Napoleon Boiro and Roger Goulet 
 and Patrick O'Connor and Francis McPliillips 
 and Frank I. Clarke and Joseph Leconito 
 and Michael Hughes and Henry Brovvnrigg 
 and Frank Jirownrigg and Tlu^ophilus 
 Tessier and L. ^Vrthnr Jjevequo and Edniond 
 Trudol and Joseph Honore Octavien Lambert 
 and Jean Jiaptistc; Poirier and George 
 Couture and J. Ernest Cyr and Francois 
 Jean .and David Dussault and Charles 
 Edouard Masse and Frani^-ois Hardis and 
 Joseph Buron and Jjouis Fournier and 
 Phileas Trudeau and P^douard Guilbault and 
 Ronmald Guilbault and Alphonso Phaneuf 
 and W. Cleophas German and Edward R. 
 ]jloyd and Louis Laventuro and Louis J. 
 Collin, ;dl of the Province of Manitoba, in 
 the Dominion of Canada, on behalf of them- 
 selves and of all other persons, forming the 
 Roman Catholic minority of the Queen's 
 Subjects in the Province - Appellants 
 
 and 
 
 THE ATTORNEY-GEINERAL OF MANI- 
 TOBA - - _ - Respondent. 
 
 CASE OF THE EESPQNDE NT. 
 
 1. This is an A])peal by special leave of Her 
 Majesty in Council from tlu' Opinion of the Supreme 
 
Manitoba School Cask, 1894. 
 
 11 
 
 Court of Caiiiida, dated < lie 20th Fobruary, 1894, on a 
 certain case referred by the Governor-General to the 
 said (Jourt. i'or liearing and consideration, liy tlie case 
 various questions were submitted for the opinion of the 
 Court, but th(! substantial (juestious at issue were, 
 whether eitiuu" uuder subsection 3 of section 93 of the 
 ]kitish North America Act, 1867. or under subsection 
 2 of section 22 of the jManitoba Act, o3 Vic, chapter 3 
 (Dominion Statute) any appeal lay to the Governor- 
 General in Council from two Statutes passed by the 
 Legislature of Manitol)a in the year 1890, whereby a 
 general system of uonsc^ctarian public education was 
 established in the place of the denominational system 
 that had previously existed, and whether the Governor- 
 General in Council had power to make the declarations 
 or remedial orders which were asked for in certain 
 meuuu'ials that had been pn'sented to His Excellency 
 in Council, complaiuhig of those Statutes. 
 
 2. The case was stated and referred by the Governor- 
 General in Council to the Supreme Court of Canada, 
 })ursuant to " The Supremo and Plxchequer Courts Act," 
 Revised Statutes of Canada, chapter 135, as amended 
 by 54 ami 55 Vic, chapter 25, section 4 (Dominion 
 Statute), in consotpumce of the above-mentioned 
 memorials, which had been presented by or on behalf 
 of the Roman Catholic minority in Manitoba. The 
 memorialists complained that their rights and privileges 
 in relation to education had been affected by the two 
 Statutes before-mcmtioned. and asked for a declaration 
 that such rights and privileges had been prejudicially 
 affected by the said Statutes, and that the Governor- 
 General in Comicil should give such directions and 
 make such remedial orders for the relief of the Roman 
 Catholics of the Province of Manitoba as to His 
 Excellencv in Council miii'lit seem lit. 
 
 3. The Supreme Court of Canada, consisting of 
 Strong, C. J., Fournier, Taschereau, Gwynne, and 
 King, J. J., after argument decided by a majority that 
 no such appeal lay from the said Statutes, and Strong, 
 C. J., and Taschereau and Gwynne, J. J., held that no 
 appeal lay and that the Governor-General in Council 
 
12 
 
 Manitoha School Cake, 1894. 
 
 liad not the power to make the ortlors asked for : 
 Foiirnier and Kin^-, J. J., were of the contrary opinion. 
 
 4. Manitoba joined the Union in 1870 upon the terms 
 of the Manitoba Act, 33 Vic, chapter 3 (Dominion 
 Statute), wliich Act was (U'clarcd valiti and ("tfectual by 
 tlie IJritisli North America Act 1871, 34 and 35 Vic, 
 cluipter 28, section 5. The cpu'stions submitted for tlio 
 opinion of the Supreme Court turned upon tlie con- 
 struction of si'ctions 2 and 22 of the Manitoba Act and 
 section i)3 of the Ikitish North America Act lH(i7. 
 
 5. It is enacted by section 2 of the Manitoba Act as 
 follows : — 
 
 " 2. On and after the said day on whicli the order 
 " of the Queen in Council shall take effect as afore- 
 '• said, the provisions of the Dritish North America 
 " Act 18(j7 shall, except those parts which are in 
 " terms made or by rt>asonable intendment may be 
 " held to be specially applicable to or only to afiect 
 '' one or more but not the whole of the rrovinees 
 " now composing the Dominion, and except so far as 
 " the same may be varied by this Act, be applicable 
 " to the Province of Manitoba in the same way and 
 " to the same extent as they apply to the several 
 " I'rovinces of Canada, and as if the Province of 
 " Manitoba had been one of the Provinces originally 
 " united by the said Act." 
 
 And it is enacted by section 22 of the Manitoba Act and 
 by section 93 of the IJritish North America Act 1867 
 as follows : — 
 
 The Manitoha Act. 
 
 "22. In and for the Pro- 
 " vince (?>., of Manitoba) 
 the said Legislature (?>., 
 the Provincial Legisla- 
 ture) may exclusively 
 
 The British Xorth America 
 
 Act 1867. 
 
 " 93. In and for each 
 
 " Province the Legislature 
 
 " (/.c, the Provincial Legis- 
 
 " lature) may exclusively 
 
 " make laws in relation to 
 
 make laws in relation to " education, subject and 
 
 " education, subject and ac- " according to the following 
 
 " cording to the following " provisions : 
 
 " provisions : " (1) Nothingin any such 
 
 "(1) Nothingin any such "law shall prejudicially 
 
 \ h 
 
Manitoha School Cask, 1894. 
 
 18 
 
 \ /I 
 
 " law Hliall prejiulicially 
 " atl'ect any right or privi- 
 " lo*^'o witli roH])0('t todeiio- 
 " miiiatioiial schools which 
 '' any class of persons have 
 " by law or practice in the 
 '' Province at the Union. 
 
 " (2) An a])peal shall lie 
 " to tli(3 Governor-General 
 " in Council from any act or 
 
 I'tl 
 
 le Legishiture 
 
 " decision o 
 " of the Province;, or of 
 " any Provincial authority, 
 " atfecting any right or 
 •' privilege of the Protestant 
 " or Roman Catholic mi- 
 " nority of the Queen's 
 " subjects in relation to 
 " educiation. 
 
 " (3) In case any such 
 " Provinciiil law as I'rom 
 " time to time seems to the 
 " (Jrovenior - General in 
 Council requisite for the 
 due execution of the pro- 
 visions of this section is 
 not made, or in case 
 any decision of the 
 Governor - Gimeral in 
 " Council on any appeal 
 " under this section is not 
 '• duly executed by the 
 '• proper Provincial au- 
 " thoriy in that bolialf, 
 " then, and in every such 
 " case, and as far only 
 " as the circumstances of 
 '• each case reijuire, the 
 " Parliament of Canada 
 " may make remedial laws 
 " for the due execution of 
 the provisions of this 
 
 u 
 
 '• affect any right or ju'ivi- 
 " lego with res])ectto deno- 
 " minational schools which 
 '• any class of persons have 
 " by hiw in the Province 
 " at the Union. 
 
 " (2) All the ])owers, pri- 
 '' vilegc^s, and duti(3S at the 
 " Union by law conferred 
 '• and imposed in Upper 
 " Caiuida on the separate 
 " schools and school trustees 
 " of the Qu(!cn's Roman 
 '' Catholic subjects shall be 
 " and the same are hereby 
 " ext(!nded to the dissentient 
 " schools of the Queen's 
 " Protestant and Roman 
 " Catholic subjects in Que- 
 " bee. 
 
 " (3) Where in any Pro- 
 " vince a system of separ- 
 " ate or dissinitient schools 
 " exists by law at the 
 " Union, or is there- 
 " after established by the 
 " Legislature of the Pro- 
 •' vhice, an appeal shall lie 
 " to the Governor-General 
 •' in (Jouncil from any act 
 " or decision of any Pro- 
 '• vincial authority atfecting 
 '• any right or privilege of 
 " the Protestant or Roman 
 " Catholic minority of the 
 " Qu!jen's subjects in re- 
 " lation to education, 
 
 '' (4) in case any such 
 •• Provincial law as from time 
 '• to time seems to the Go ver- 
 " nor - General in Council 
 " rec^uisite for the due exe- 
 
 ' 1 
 
14 
 
 IManitoha School (Lvse, 1894. 
 
 " section, and of any doci- 
 " sion of tlie Govcrnor- 
 " Gonoral in Council under 
 " this section." 
 
 " cution of I ho ])rovisi()ns 
 " of this section is not 
 " made, or in ease any 
 " decision of the Govornor- 
 " General in Council on any 
 " a])|)eal under this section 
 " is not duly executed by 
 " the proper Provincial 
 " authority in that behalf, 
 " then and in every stich 
 " case, and as far only as 
 " the circumstances of each 
 " case recpiire, the Parlia- 
 " nient of Canada may 
 " make remedial laws lor 
 " the due execution of (he 
 " provisions of this section, 
 " and of any decision of the 
 " Governor - General in 
 " Council under this sec- 
 
 u 
 
 tion. 
 
 6. Tlie Governor-General in Council, in submitting 
 the case to the Supreme Court, set forth the evidence in 
 two cases, called PaiTctt's case and Logan's case, as the 
 evidence on "which the case was to be decided. The 
 proceedings in those two cases were initiated in the 
 Court of Queen's Bench for Manitoba, and the matter 
 came on appeal before the Judicial (yommittee of the 
 Privy Council. The question !it issue was, whether the 
 Public Schools Act 181)0 (Manitoba Statute), Avhich is 
 one of the Statutes complained of by thi'. memorialists, 
 was void as offending against subsection 1 of section 22 
 of the Manitoba Act, whereby the Legislature of 
 Manitoba is prohibited from passing any law prejudi- 
 cially affecting any right or ])rivilege with respect to 
 denomination;d sehools which any class of persons had 
 by law or practice at the Union. The two cases were 
 heard together, and it was decided by the Judicial 
 Committee that the Public Schools Act 1890 did not 
 prejudically affect any right or privilege with respect to 
 denominational schools which any class of persons had 
 
 --»)% 
 
 I 
 
 <* 
 
Manitoua RrirooL Cahe, 1894. 
 
 16 
 
 •)'j 
 
 ■.wm 
 
 by law or pnu-ticL' in llu' Province! :it tiic Union, and vviis 
 conHtN|Montly 'ntra viros and const itutional. The wliolo 
 of tlicso ])rooetMlin^'s, and tiiu said ovidcneo, and the 
 judgment deli\'ored by Lord Macnau<2,hton on behalf of 
 the Judicial Conunittee, are to bo found in the record. 
 
 7. The elfect of the ovi<Umce was fully stated in tho 
 judgment ol! the Privy Couiuril, and the following is a 
 short sinnmary thereof : — 
 
 At tho time when Mar'^oba was acbnitted to the 
 Union there was no law or regulation or ordinance with 
 respect lo ecbication in Ibrce. TJiore were no public 
 schools in the sense of State schools, but there existed 
 throuahout thi^ Province a number of denominational 
 schools maintained by school iees or voluntary con- 
 tributions, and conducted according to the tenets of the 
 ri'ligious body to which they might belong. These 
 schools were neither suppcn'ted by grants from the 
 public funds nor were any ol' them in any way regulated 
 or controlled by any public officials, fn 1871, however, 
 the year after admission of Manitoba to the 
 Union, a law was passed which established through- 
 out th(! Province a system of denomination.al educa- 
 tion in the couunon schools, as tlu^y wen; then 
 called. A IJoard of pAlucation was formed, which wjis 
 to be divided into two sections — Protestant and Roman 
 Catholic. Each secticm was to have under its control 
 and nianagemcut the discipline of the schools of the 
 section. Each of the twenty-four electoral divisions 
 into whicli the Province had by the Manitoba Act been 
 divided was constituted a school district in the first 
 instance, antl there was to be a school in each district. 
 Twelve electoral divisions " comprising niainl}' a Pro- 
 •' testant population " were to be considered Protestant 
 school districts ; twelve "comprising nuiinly a Roman 
 " Catholic population " were to be considered Ronuin 
 Catholic school districts. These schools, none of which 
 could properly be calh^d " separate or dissentient 
 " schools," were to be maintained by grjints from the 
 public funds, to be divided equally between the Pro- 
 testant and Roman Catholic schools, and contributions 
 
16 
 
 INfAMToHA School Cakk, 1804. 
 
 from tlio ])co[)lt! of t'licli school district. Such coiitribu- 
 tiouH ini<>'Iit })v raised l)y an assossmcnt on the [U'opcrty 
 of the school district, which must have involved in some 
 rases at any ratt' an assessment on Roman Catholics for 
 the support of a Protestant school, and an assessment (m 
 Protestants for the support of a Uoman (Catholic scliool. 
 
 The laws relating* to education were modified from 
 time to time. From the year 1870 to 18i)() enactnu'nts 
 were in force declarin<Ji* that in no case should a 
 Protestant ratepayer \)v. obli^i'd to pay for a Poman 
 Catholic school, or a Uoman ('atholic ratepayer for a 
 Protestant school, and by an Act passed in 1881 it was 
 provided that th(( legislative ^-rant should no longer be 
 divided ecpially between Protestant and Roman Catholic 
 schools, but should be divided between the Protestant 
 and Roman (.atholic section of the Board in ])roportion 
 to the number of children between the ages of 5 and 15 
 residing in the various Protestant and Ronmn Catholic 
 scliool districts. 
 
 The system of denominational education was main- 
 tained in full vigour until 1890, when the Statutes com- 
 ])lained of by the memorialists, vi/., 53 Vic, chapter 37, 
 and the Public Schools Act 1890 (Manitoba Statutes), 
 were passed. The former established in the place of 
 the P)oard of Education a Department of Education, and 
 a lioard consisting of seven members, known as the 
 " Advisory IJoard." 
 
 The Public Schools Act 1890 repealed all previous 
 legislati(m relating to public education, and enacted that 
 all Protestant and Roman Catholic school districts should 
 be subject to the provisions of the Act, and that all public 
 schools should be free schools. At the option of the 
 school trustees for each district, religious exercises con- 
 ducted according to the regulations of the Advisory 
 Board and at tlu> times jn'eseribed by the Act were to bo 
 held in the public schools. The religious services were 
 to be entirely nonsectariau, and any pupil whose parent 
 or guardian should so wish was to be dismissed from 
 school before the ri'ligious exercise should take place. 
 
 The Act then provided for the formation, alt(?ration, 
 and union of school districts, for the election of school 
 
 I 
 
 d 
 
 ! 
 
Mamtoha School Cahk, 1804. 
 
 17 
 
 1 
 
 *■ 
 
 *f 
 
 i 
 
 i 
 
 f 
 
 ■I 
 i 
 
 tnisiocH, and lor Icvyinp; a rato on the taxJiblo |)i'()[)('i'ty 
 ill each st'liool district I'or sciiool purpoHcH. A jH)rtion 
 of tlio l('^-islativ(^ n^raiit I'or oducatioiiai i)nrpoHOH wan 
 idlottcd to public hcIiooIh l)Ut no school was to participato 
 in the •j:;rant iinluss it w(>ro conductiMl according' to all 
 tho ])rovi.sions of tlu* Act and tlio rc^'nlations of tin; 
 Department of Education and of the Advisory Hoard. 
 
 8. Alter the d<M;ision in Harrett's and iiO^'aii's cases 
 had Iteen o'iven hy the .Iiulicial ( 'oniniittee, the memorials 
 herorc-meiitioned wcire presented to the (lONcrnor- 
 (leneral in (Jouncil by or on behairol'tho lloman (Jatholic 
 nunority in Manitoba, alleging- that — 
 
 (1) Th(! Statutes complained of iiad de|)rived the 
 lioman Catholic minority of the rights or privileges of a 
 separates contlitionas regards education and oforguiii/iug 
 their schools under tho system of [)ublic education in the 
 Province which they had ])reviously enjoyed by tho 
 Education Acts passed since tho Union. 
 
 (2) That their schools had boon mergoi! with those of 
 Protestant denominations. 
 
 (3) That they are reipiircd to contribute througli 
 taxation to tlu^ support of schools which are called ])id)lic 
 schools, but are in substance ii continuation of the old 
 Protestant schools. 
 
 (4) Thar the religious exercises in the ])ublic schools 
 are not acceptal)le to them, and praying that tho 
 (jTovernor-General in Council would, pursuant to tho 
 lU'itish North America Act 1<S(')7, section !).'>, subsocti(m 
 ','>, and the Manitoba Act, si'Ction '22. subsection 2^ hear 
 and imtertain tlu! memorialists' appeal irom the Statutes 
 complained of. 
 
 9. The memorialists' contention was — 
 
 (1) That the Statutes com|)lained of had prejudicially 
 alfectod rights and privileges in relation to education 
 which they had acrpiired since the Uni(m. 
 
 (2) That by subsection 2 of section 22 of tho Manitoba 
 Act an appeal would lie to the Covernor-Ceneral in 
 Council from any Act of the Provincial Legislature 
 affecting such rights and privileges, even though tho 
 Act were intra vires and constitutional. 
 
18 
 
 Manitoha ScModi, Cask, 1894. 
 
 (3) That, l»y virliu! of Hcctimi liol'ilic Maiiilolta Act, 
 Hiil)H(H'ti()n '.\ ofst^ction U.'i of \\n) IJi'ii.iHli Xortli Aiuci'ica 
 Act 1807 applictl to Maiiitobii, and tlial a similar ri^lit 
 of ai)]H'al was provided by that Hoction. 
 
 10. Tlun'oupon tho Govc^'nor-OiMiora! in ('ouikmI, 
 ])ursuaiil tothr authority ol'f hi' St at III cs alto vi'-nicii I ioMcd, 
 rclcrrc*! the inatlcr to tlio Sii|irt'iiio ('oiirl ol' ( 'aiiada lor 
 lioarinji;' and coiisidcralioii. and (h'sircd tho ('oiirt, to 
 cortify to him in Council their opinion on the lollowin^j;' 
 qucHtionH : — 
 
 (1) Ih the a])peal referred to in the Haid tnoniorialH and 
 petitions and asHerted thereby such an apj)eal as is 
 adniiHsibhi by subsection 8 of section U.'> of the iU'itish 
 North Anu'nca Act I8(i7, or bv subsection 2 of section 22 
 of tho Manitolja Act, 33 Vic. (1870), chai)tor 3, Canada? 
 
 (2) Are the grounds set Forth in the petitions and 
 memorials such as may bo tlu^ sul)je(;t of appeal under 
 tho authority ot tho subsections above rel'orred to, or 
 either of them ? 
 
 (3) Does the decision ol' the Judicial Connnittce of 
 the Privy Council in tho cases of liarrott ?;.s. the (^ity ol' 
 Winnipeg- and Logan rs. the City ol' Winnipeg dis[)()St? 
 of or conclude! the a])[)lication for redress, based (m the 
 contention that the rights of the Roman Catholic minority, 
 which accrued to them after the Union under the Statutes 
 of tho Province, have been intori'ered with by the two 
 Statutes of 1890 complained of in the said petitions and 
 memorials ? 
 
 (4) Does subsection 3 of section 93 of the British 
 North America Act 18(i7 a])ply to Manitoba '? 
 
 (5) Has His Excellency tho Governor-General in 
 Council power to nudce the declarations or remedial 
 orders which are asked for in the said memorials and 
 petitions,, assuming the material facts to bo as stated 
 therein, or has His Excellency the Governor-General in 
 Council any other jurisdiction in the premisi's '? 
 
 (6) Did the Acts of Manitoba relating to education 
 passed prior to the Session of 1890 confer on or continue 
 to the minority a " right or privilege in relation to edu- 
 cation " within the meaning of subsection 2 of section 22 
 
Manitoha School Cahk, 181)4. 
 
 19 
 
 la Act, 
 iiicricii 
 r ri^lil 
 
 itioiKMl, 
 adii ior 
 tiirt to 
 llowiii^' 
 
 als aiul 
 I an is 
 IW'itisli 
 't ion 22 
 aiiada ? 
 
 »ns and 
 I uiid(4' 
 I to, or 
 
 liltcc of 
 (^ity ol" 
 
 lis[)()S(! 
 
 I on tho 
 
 inority, 
 
 tatutcs 
 
 111' two 
 
 )ns and 
 
 liritish 
 
 Tal in 
 
 •niudial 
 
 als and 
 
 stated 
 
 icral in 
 
 ucation 
 ontinue 
 to udu- 
 ition 22 
 
 of tlio Manitoba Act, or cHtablish a Hystcm of separate or 
 dissentient schools within the moaning of sub-section H 
 of section Duol'thc Mritisii North America Act 1807, if 
 the said section i).'i be found to be applicable to Manitoba ; 
 ami, if so, did the two Acts of IH'JO coiui)lained of, or 
 either of them, alVc'i any ri^-lit or privilege of the 
 minority in sui'h a manner that an appeal will lies 
 ihercnnder to tli** (lovernor-(ieneral in ('oiincil ? 
 
 11. The case was argued before the Suju'eme (.'ourt on 
 the 17th October iHy.'l by counsel on behalf of the 
 Ap[)ullants and other Roman Catholic inhabitants of 
 Manitoba. (Jounsel for Manitoba appeared but did not 
 desire to address the (!ourt, ami at tlie reijuest of tlu* 
 Court Mr. Robinson, Q.C., argued the case as to the 
 interest of Manitoba. 
 
 12. After such hearing and consideration tho said 
 .Judges certitied to tho (lOvernor-Clenoral in (Jouncil, for 
 his information, their oi)in ion on the (pu^st ions so referred 
 to the Court, with their reasons therefor. 
 
 To the first (juestion: Stnmg, C. J., Tasehereau, J., 
 and Gwynne, .1., gave a negative answer; and Fournier, 
 J., and King, J., gave an afKrmative answer. 
 
 To the secontl (piestion : Strong, C. J., Tascliereau, J., 
 and Gwynne, J., gave a negative answer ; and Fournier, 
 J., and King, J., gave an affirmative answer. 
 
 To the third question : Strong, C. J., Fournier, J., and 
 King, J., gave a negative answer; and Tasehereau, J., 
 and Gwynne, J., gave an affirmative answer. 
 
 To the fourth ({uestion : Strong, C. J., Tasehereau, J., 
 and Gwynne, J., gave a negative answer ; and Fournier, 
 J., and King, J., gave an affirmative answer. 
 
 To the fifth question : Strong, C. ,J., Tasehereau J., 
 and Gwynne J., gave a negative answer ; and Fournier, 
 J., and King, J., gave an atHrmative answer. 
 
 To the sixth ipiestion : Strong, C. J., and Tasehereau 
 J., gave a negative answer ; and Fournier, J., and King, 
 J., gave an affirmative answer; and Gwynne, J., 
 answered : — " The Acts of 1890 do not, nor does 
 " either of them, affect any right or privilege of a minor- 
 " ity in relation to education within tho meaning of sub- 
 
20 
 
 Manitoba School CIask, 1894. 
 
 i 1 ' 
 
 } 1 
 
 2 •) 
 
 " section 2 of section 22 of the Manitoba Act in such 
 " manner that an appeal will lie thereuntlcr to the 
 " Govei lor-General in Council." 
 
 The majority oC the Court wore therefore of opinion 
 that no appeal would lie to the Govcrnr General in 
 Council from the Statutes complained of 
 
 13. The Appellants thereupon, on behalf of them- 
 selves and the rest of the Roman Catholic :ninority in 
 Manitoba, presented a petition to tlu^ Queen in Council 
 for special leave to a])peal from this decision of the 
 Supreme Court, and such special leave was <>,Tanted 
 upon terms which have been complied with. 
 
 14. Tlu; Respondent submits that the opinions which 
 the majority of the Jud^-es of the Supreme C^ourt gave; 
 upon the questions submitted to them are correct Cor the 
 followinc;, amongst other 
 
 REASONS. 
 
 1. Because the provisions of section 22 of rhe 
 Manitoba Act were iiltended to deline completely 
 the power of the IjCgislature of the Province to 
 make laws in relation to education, and the provi- 
 sions of section 93 of the liritish North America 
 Act do not in any way limit, or i>xtend, or alfect the 
 power of the lA-g-iHlature ol' the Province in that 
 behalf. 
 
 2. Pecausc the provisions of sub-section 3 of 
 section 93 of the Pritish North America Act 18()7 
 are varied by the provisions of sub-section 2 of 
 section 22 of the Manitoba Act, and are not there- 
 fore by virtue of section 2 of the Manitoba Act 
 
 )a. 
 
 II th 
 
 )f sub- 
 
 ipplicable to Manitol 
 
 3. Pecause, assumin_i>,' all tlic provisions o 
 section 3 of section 93 of the Pritish North America 
 Act to apply to Munitob;i, no appeal lies under that 
 sub-section from the Statutes complained of, the 
 only ap])eal being- fr(>m an " Act or decision of any 
 Provincial authority," and a Statute passed by the 
 Lei>:islature of the Province is not an A(!t or deci- 
 
 sion of any Provincial authority within the meanin 
 of that section. 
 
 .O" 
 
Mamtoha School Case, 1894. 
 
 ^1 
 
 II such 
 to the 
 
 opinion 
 L'l'iil in 
 
 tliom- 
 oritv in 
 C'oun^u 
 
 of tliO 
 :^Tiinted 
 
 which 
 ■t gavui 
 I'or the 
 
 of rhe 
 
 ipk^toly 
 inec to 
 provi- 
 inierica 
 bet tho 
 in that 
 
 II 
 
 3 of 
 ct 1807 
 n 2 of 
 i thurc- 
 ba Act 
 
 ol' siib- 
 nierica 
 cr that 
 of, the 
 of any 
 )y the 
 r ik'ci- 
 eaning 
 
 ■■j| 
 
 ■»L 
 
 4. rxH'ausc, assuniinn- all tho provisions of sub- 
 section o of section i)3 of tlu; iJritish North America 
 Act to apply to Manitoba, there is not and never has 
 been a svstem of separate or dissentient schools estab- 
 lished by laAV in Manitoba. 
 
 .'). lU'cause, under the ])rovisions of s(vtion 22 of 
 tlu^ Manitoba Act, an appeal to the CloviUMior- 
 (Jeneral in Council can lie oidy when rights or 
 j)rivile,ij,'es existing by law or |)ractice at the Union 
 liave been aHected — and tlu> decision in Uarrott's 
 and Logan's csises precludes the Appc^Uants from 
 saying that any such rights or privileges have been 
 all'ected by the Statutes complained of. 
 
 (). l)ecaus(>, even if the rights and ])rivilege nu'U- 
 tioned in section 22 in( hided rights and ])rivileges 
 created since the Union, the Statutes complMined of 
 have not alfected any right or privilege of the 
 Kouum (■atholic minority in relation to education 
 establislu'd by law or])ractice since that time. 
 
 7. Jjccause. if the a|-peal contended for by the 
 Ap])ellants lies, the JiCgisIature of Manitoba would 
 be de])H .'('d of the right, inherent in all Ji(\gislatures, 
 of repealing its own laws, and the J.egislature, 
 having once passecl a Statute giving a right or 
 privilege to any (lenominatit)n, could never rc^peal 
 or alter that Stahite. 
 
 8. Jn'causc the Appellants' contention ascribes to 
 tlieGovernor-(Jeneral ill Council, and the Parliament 
 of Canada, a ])eciiliar and arbitrary jurisilicticm to 
 review and reschid, according to their discretion, 
 and without any reference to the constitutional 
 rights of the Province of Manitoba, intra rircs and 
 constitutional laws passed by the Legislature of 
 Manitolia. 
 
 I), liccause the Appellants' contention reducers the 
 exclusive right of the JjCgislature of Manitol)a to 
 make laws in relation to education in and for the 
 Province of Manitoba, conferred on it by positive 
 enactment, to a nulity. 
 
 HERIJEKT H. COZENS-ilAuIJY. 
 R. M. I5RAY. 
 
 ?!i 
 
fti 
 
 ir 
 
 22 
 
 Manitoba School Case, 1894. 
 
 Jutririal (ffommittrr of tfji' i^tibv (ffounril, 
 
 Council Ciiambkr, AVhiteiiall. 
 
 Present : 
 THE RIGHT HON. THP: LORD CHANCELLOR. 
 THE RIGHT HON. LORD WATSON. 
 THE RIGHT HON. LORD MACNAGHTEN. 
 THE RIGHT HON. LORD SHAND. 
 
 In the Mattel' of ceiiain Statutes of the Province of 
 Manitoba, relating to Education. 
 
 Between GERALD F. BROPHY & Others Appellants 
 
 and 
 
 THE ATTORNEY-GENERAL OF MANI- 
 TOBA Respondent. 
 
 On Appeal from the Supreme Court of Canada. 
 
 Counsel for the Appellants Mr. Edward Blake, Q.C, M.P., 
 
 and Mr. John S. Ewakt. v^.C. 
 Solicitors for the Appellants, Messrs. Bompas, Bischoff 
 
 DoDGsoN, CoxE & Bom pas. 
 Counsel for the Respondent Mr. Cozens- Hardy, Q.C, M.P., 
 
 Mr. Haldane, Q.C, M.P. and Mr. Reginald Bray. 
 Solicitors for the Respondent, Messrs. Freshfields 
 
 AND Williams. 
 
 FIRST J) KY.— Tuesday, December 11th, 1894. 
 
 Mr. Edward Blake, Q. G. My Lords, I appear with my 
 learned friend Mr. Ewart, of the Manitoba Bar, for the 
 Appellants in this Case. The Case is, so to speak, the 
 complement of a Case already before your Lordships 
 arising under another form, and with reference to other 
 parts of the section of the British North America Act 
 and of the Manitoba Act which are relevant to the 
 
 41 
 
'i V 
 
 Manitoha School Cahk. 1804. 
 
 23 
 
 
 subject ol" Kidnoation and the rio-lits of religioua minorities 
 in respect of education in the ditferont provinces of 
 (Janathi. Tiiis particuhir case comes before yonr Lord- 
 ships tluis : — As your Lordsliips are awan^, l)esidos 
 ])rovidin,L>,- a certain restriction upon the powers jo 
 ]n'ovinces g-enerally in th(! tirst instance, and by the 
 ManitolKi Act u])on thepovv(>rsofthat provinccitoleo-i^hato 
 in res])eet of e(hicatiou, an Appeal un(h'r certain con- 
 ditions, in certain circumstanc(>s a,u,'ainst Acts of the 
 Leo-ishiture or (h'cisions of Provincial Authorities is 
 a'ranted to the Governor-General in Council. Such 
 an Appeal was taken, and was pending* in a sense, 
 that is to say. it had been presented at the time tiie 
 former Manitoba school case, W/'nntpetj r. Darrctt, 
 was before your Lordships, but its c(msidera- 
 ti(m by the tribunal which the law had 
 created for the pur[)ose of dealing with it had been 
 deferred until the decision in IVirmipeq v. Barrett, and it 
 was so deferred nj)on the express ground tluit the 
 decision in Wi)inipe(j v. Barrett might rcuider any con- 
 sideration of that Appeal unnecessary, and that therefore 
 the time for dealing with it would not arise until after 
 that decision had binni reached. There were various 
 memorials or petitions making this ai)])eal sent to His 
 Excellency the Governor-G(nioral in Council. Those 
 which had l)eon before him were supplemented in the 
 end by a further memorial, which is the memorial of 
 Brophy iuid others, the memorial in ri'spect of which 
 more particularly this Appeal is brought. 
 
 Perhaps 1 may most conveniently introduce" to your 
 Lordships the considerations of the case by reading* a 
 paper, although I am glad to believe that the very full 
 discussion which the former ciise has received has ren- 
 dered it not necessary that I should entt;r so fully into 
 many of the particulars as it was incumbent upon coun- 
 sel to do on that occasion ; yet this docunumt to which I 
 am about to refer your Ijordships states succinctly — and 
 I shall readonly sonu) extracts from it — what the condition 
 of the case was upon which the Governor in Council acted, 
 so far as he did act. At page 8 of the Case it In^gins. It 
 is a report of a Committee of the Privy Council approving 
 a lleport of a Sub-committee of that Council, thus 
 
u 
 
 Manitoba School Case, 1894. 
 
 !l:.l' 
 
 \i '''i' 
 
 II I 
 
 I ,1 
 
 making' it a IVIinutc of tlie Privy Coimcil of Canada ; and 
 the Koport of tlio Snb-committoe is of course what is 
 material. That sub-conimittco's report states tliat certain 
 Memorials adch'essed to the Governor in Council had 
 been referred to them, and it gives an account wliicli I 
 do not know that it is necessary now to read in detail as 
 to what thes(! earlier Memorials were. Then at abont 
 the mi(hlle of the tenth pao:e : 
 
 The petition of the "Congress" then sets forth the minute of 
 Council, approved by Your Kxcellency on the 4th April, 1891, 
 adopting a report of the Minister of Justice, which set out the scope 
 and effect of the legislation complained of, and also the provisions of 
 the Manitoba Act with reference to education. That report stated 
 that a question had arisen as to the validity and effect of the two 
 statutes of 1890, referred to as the subject of the appeal, and inti- 
 mated that those statutes would probably be held to be u/tra vires 
 of the Legislature of Manitoba if they were found to have prejudici- 
 ally affected '' any right or privilege with respect to denominational 
 schools which any class of persons had, by law or ])ractice, in the 
 province, at the union." The report suggested that questions of 
 fact seemed to be raised by the petitions, which were then under 
 consideration, as to the practice in Manitoba with regard to schools, 
 at the time of the union, and also questions of law as to whether the 
 state of facts then existing constituted a "right of privilege" of the 
 Roman Catholics, within the meaning of the saving clauses in the 
 Manitoba Act, and as to whether the Acts complained of (of i8qo) 
 had " prejudicially affected " such " right or privilege." The Report 
 aCt forth that these were obviously questions to be decided by a legal 
 tribunal, before the appeal asserted by the petitioners could be taken 
 up and dealt with, and that if the allegations of the petitioners and 
 their contentions as to the law, were well founded, there would be 
 no occasion for Your Excellency to entertain or to act upon the 
 appeal, as the courts would decide the Act to be ultra vtrcs. The 
 report and the minute adopting it were clearly based on the view 
 that consideration of the complaints and appeal of the Roman 
 Catholic minority, as set forth in the petitions, should be deferred 
 until the legal controversy should be determined, as it would then 
 be ascertained whether the Appellants should find it necessary to 
 press for consideration of their application for redress under the 
 saving clauses of the British North America Act and the Manitoba 
 Act, which seemed, by their view of the law, to provide for protec- 
 tion of the rights of a minority against legislation (within the com- 
 petence of the legislature), which might interfere with rights which 
 had been conferred on the minority, after the union. 
 
 That is a statement of the general nature as under- 
 stood at the earlier jieriod by his Excellency in Comicil, 
 of the character of the application for redress : 
 
 The memorial of the " Congress " goes on to state that the Judicial 
 Committee of the Privy Council, in England, has upheld the validity 
 
Manitoha School Cask, 1894. 
 
 25 
 
 of the Acts complained of and the " memorial " asserts that the time 
 has now come for Your Excellency to consider the petitions which 
 have been presented by and on behalf of the Roman Catholics of 
 Manitoba for redress under sub-sections 2 and 3 of section 22 of the 
 Manitoba Act. 
 
 There was also referred to the sub-c(Jinmittee a memorial from the 
 Archbishop of Saint Boniface, complaining of the two Acts of 1890, 
 before mentioned, and calling attention to former petitions on the 
 same subject, from members of the Roman Catholic minority in the 
 province. His Grace made reference, in this memorial, to assurances 
 which were given by one of Your P'xcellency's predecessors before 
 the passage of the Manitoba Act, to redress all well founded griev- 
 ances and to respect the civil and religious rights and privileges of 
 the people of the Red River Territory. His Grace then prayed 
 that your Excellency should entertain the appeal of the Roman 
 Catholics of Manitoba and might consider the same, and might make 
 such directions for the hearing and consideration of the appeal as 
 might be thought proper and also give directions for the relief of the 
 Roman Catholics of Manitoba. 
 
 The sub committee also had before them a memorandum made by 
 the " Conservative League " of Montreal remonstrating against the 
 (alleged) unfairness of the Acts of 1890, before referred to. 
 
 Soon after the reference was made to the sub-committee of the 
 memorial of the " National Congress " and of the other memorials 
 just referred to, intimation was conveyed to the sub-committee, by 
 Mr. John S. Ewart, Counsel for the Roman Catholic minority in 
 Manitoba, that, in his opinion, it was desirable that a further me- 
 morial, on behalf of that minority, should be presented, before the 
 pending application should be dealt with, and action on the part of 
 the sub-committee was therefore delayed until the further petition 
 should come in. 
 
 Late in November this supplementary memorial was received and 
 referred to the sub-committee. It is signed by the Archbishop of 
 Saint Boniface, and by the President of the " National Congress," 
 the Mayor of Saint Boniface, and about 137 others, and is presented 
 in the name of the '' Members of the Roman Catholic Church resi- 
 dent in the province of Manitoba.'' 
 
 Its allegations are very similar to those hereinbefore recited, as 
 being contained in the memorial of the Congress, but there is a 
 further contention that the two Acts of the Legislative Assembly of 
 Manitoba, passed in 1890, on the subject of education, were " Sub- 
 versive of the rights and privileges of the Roman Catholic minority 
 jirovided for by the statutes of Manitoba, prior to the passing of the 
 said Acts of 1890, thereby violating both the British North America 
 Act and the Manitoba Act." 
 
 This last mentioned memorial urged : — 
 
 (i.) That your Excellency might entertain the appeal and give 
 directions for its proper consideration. 
 
 (2.) That Your Excellency should declare that the two Acts of 
 1890 (chapters 37 and 38), do prejudicially affect the rights and 
 privileges of the minority, with regard to denominational schools, 
 which they had by law or practice, in the province, at the union. 
 
Manitoha School Cahk, 1804. 
 
 (3.) That it may be declared that the said Acts affect the rights 
 and privileges of Roman Catholics in relation to education. 
 
 Those are the two propositionn which the Memorials 
 set up, one which was in ctVcct states! by the Canadian 
 Privy Council to be an attempt to re-discuss the question 
 whicli vf>^i^* ]jordsliips had disposed of, tlie second tliat 
 wliich IS practically now before your rjordshi[)S that it 
 may be declared that the Acts aH'ect the ri^'hts and 
 privileges of Roman Catholics in relation to education. 
 
 The Lord Chancellor. It is not before us what should 
 be declared, is it ? 
 
 Mr. Blake. No, what is before your I^ordships is 
 whether there is a case for Appeal. 
 
 2 he Lord Chancellor. What is before us is the func- 
 tions of the Governor-General. 
 
 Mr. Blake. Yes, and not the method in which he shall 
 exercise them — not the discretion wliich he shall use 
 but, whether a case has arisen on those facts on which 
 he has jurisdiction to intervene ? That is all that is before 
 your Ijordships. 
 
 Lord Shand. Is there any distinction between 2 and 
 3? 
 
 Mr. Blake. Doubtless a most vital distinction. 
 
 Lord Shand. Is " the rights and privileges of the 
 minority " different from " the rights and privileges of 
 Eoman Catholics " ? 
 
 Mr. Blake. No, not in that respect. The distinction 
 is this : You see the last words of 2 are " which they 
 had by hiw or practice in tlu^ Province at the Union." 
 What we have now to deal with is rights and privileges 
 which they allege they accpiired by post-Union Legisla- 
 tion which rights and privileges have been interfered 
 with by still later legislation. 
 
 Lord Shand. Then Article 2 refers to at the Union, and 
 Article 3 post Union. 
 
 Mr. Blake. Yes. Article 2, your Lordships, will 
 find is practically precluded in advance from discussion. 
 The submission is a submission of the second and not 
 of the first position. Of course that is a very brief 
 statement of Article 3, but the substance is what I have 
 stated. The prayer of the last memorial is : 
 
 " That a re-enactment may be ordered by your Excellency of the 
 
 ■I 
 
Manitoha School Cahk, 1894. if 
 
 Statutes in force in Manitoba, prior to these Acts of 1890, in so far 
 at least as may be necessary to secure for Roman Catholics in the 
 Province the right to build, maintain, &c., their schools in the 
 manner provided by such Statutes, and to secure to them their pro- 
 portionate share of any grant made out of public funds of the 
 Province for education, or to relieve such members of the Roman 
 Catholic Church as contribute to such Roman Catholic schools from 
 payment or contribution to the support of any other schools ; or 
 that these Acts of i8qo should be so amended as to eflFect that 
 purpose." 
 
 Then follows a gonoral prayer for relief. Then the 
 report of the Siib-Coinmittee goes on to deal with these 
 memorials, saying that they will comment only on the 
 last one, as it embraces all and a little more than the 
 others. They say : 
 
 " As to the request which the petitioners make in the second 
 paragraph of their prayer, viz., ' That it may be declared that the 
 said Acts (53 Vic. 37 and 38 do prejudicially affect the rights and 
 privileges with regard to denominational schools which the Roman 
 Catholics had by law or practice in the Province of Manitoba, at the 
 time of the Union, the Sub-Committee are of opinion that the 
 Judgment of the Judicial Committee of the Privy Council is conclu- 
 sive as to the rights with regard to denominational schools which 
 the Roman Catholics had at the time of the Union, and as to the 
 bearing thereon of the Statutes complained of, and your Excellency 
 is not therefore, in the opinion of the Sub-Committee, properly 
 called upon to hear an appeal based on those grounds." 
 
 Lord Skand. What was that Sub-Committee ? 
 
 Mr. Blake. It was a Sub-Committee of the Privy 
 Council of the Dominion to which this question was 
 referred, 
 
 Lord Shand. By His Excellency ? 
 
 Mr. Blal'c. Yos, by His Excc^llency in Council, which 
 reported to tlu* full Council, ;ind the full Council adopted 
 this r(!port, so that it now stands as the report of the 
 Privy Council of Canada approved by the Governor. It 
 has the virtue not merely of the report of a sub-com- 
 
28 
 
 Manitoha ScHooi. Cask, 1894. 
 
 Tiiillco, l)iit of a luinuto in council of llio Govcrnmoni of 
 Caniula. 
 
 " That judgment is as binding on your Excellency as it is on any 
 of the parties to the litigation, and therefore, if redress is sought on 
 account of the state of affairs existing in the province at the time of 
 the Union, it must be sought elsewhere and by other means than by 
 way of appeal under the sections of the British North America Act 
 and of the Manitoba Act which are relied on by the Petitioners as 
 sustaining this Appeal. The two Acts of 1890 which are complained 
 of must, according to the opinion of the sub-committee, be regarded 
 as within the powers of the Legislature of Manitoba," (that was 
 following your Lordship's decision), " but it remains to be considered 
 whether the App'^al should be entertained and heard as an appeal 
 against statutes which are alleged to have encroached on rights and 
 privileges with regard to denominational schools which were acquired 
 by any class of persons in Manitoba, not at the time of the Union, 
 but after the Union. 
 
 " The sub-committee were addressed by Counsel for the 
 Petitioners as to the right to have the Appeal heard, and from his 
 argument, as well as from the documents, it would seem that the 
 following are the grounds of the appeal. A complete system of 
 separate and denominational schools was, it is alleged, established by 
 Statute of Manitoba in 1871, and by a series of subsequent Acts. 
 That system was in operation until the two Acts of i8()0 (chapters 
 37 and 38) were passed. The q3rd section of the British North 
 America Act in conferring power on the Provincial Legislatures 
 exclusively to make laws in relation to education imposed on that 
 power certain restrictions, one of which was (sub-section i) to 
 preserve the right with respect to denominational schools which any 
 class of persons had by law in the province at the Union." 
 
 Lord Shand. Av^liat is the dale of the P>rilisli Nortli 
 America Act ? 
 
 Mr. IJ/cdi'c. 1867. As to this restriction, it seems to 
 impose a condition on the validity of any Act relating 
 to ednealion. and the sub-committee have already ob- 
 served that no question it seems to them can arise since 
 the decision of the Judicial Committee of the Privy 
 
Manitoba School Cask, 1894. 
 
 29 
 
 iiiionl, of 
 
 IS on any 
 sought on 
 e time of 
 s than by 
 lerica Act 
 :ionc'rs as 
 miplaincd 
 regarded 
 [that was 
 onsidered 
 m appeal 
 ights and 
 ; acquired 
 e Union, 
 
 tor the 
 
 from his 
 
 that the 
 
 ^'steni of 
 
 ished by 
 
 ;nt Acts. 
 
 (chapters 
 
 h North 
 
 jishitures 
 
 on that 
 
 >n i) to 
 
 hich any 
 
 North 
 
 ems to 
 elating 
 ly ob- 
 B since 
 Privy 
 
 Council. The tliinl sub-soction howcvor is as follows: — 
 " Wiicro in any province a systeni of separate or dissen- 
 tient schools exists by law at the Union, or ia thereafter 
 cstal)lishe(l by the le^^'isliitiire of the ])rovince an ap]wal 
 shall lie to the Govcriior-licMUiral in Council from any 
 Act or decision of any provincial authority alfecting any 
 rio'ht or privilege of the Protestant or Roman (/afholic 
 minority of the Queen's subjects in relation to education." 
 The Manitol)a Act passed in 1<S70 by which the Province 
 of Manitoba was constituted, contains the following pro- 
 visions, as regards that province ; by Section 22 the 
 power is conferred on the Legislature exclusively to 
 make laws in relation to educati<m, but subject to the 
 following restrictions. That enabling power is textuallv 
 the same as the enal)ling power in the British North 
 Auu'rica Act with refcn-nce to the province to which it 
 related. '' (1) Nothing in any such law shall prejudici- 
 ally allect any right or privilege with respect to (hjnomi- 
 national schools which any class of persons have by law 
 or i)ractice in the provinci; at thennion." That again is 
 textuallv the same as th(^ llrst sub-section of the 
 lU'itish North America Act, with the exception of 
 the introduction of the words " or practice " which 
 Ibrnied the main subject of discussion on the former 
 occasion before your Lordship's Board. The restriction, 
 the sub-committee again observe, has been dealt with by 
 the judgment of the Judicial Committee of the Privy 
 Council. Then follows : — " (2) An appeal shall lie to the 
 Grovernor-General in Council from any Actor decision of 
 the jjcgislature of the province, or of any provincial 
 authority, affecting any right or privilege ot the Protes- 
 tant or Roman Catholic minority of the Queen's subjects 
 in relation to etlucation." It will be observed that the 
 restriction contained in sub-section 2 is not identical 
 with the restriction of sub-section 3 of the J)3rd section 
 of the British North America Acr, and ([uestiims are 
 suggested, in view of this difference, as to whether sub- 
 section 8 of secticm 98 of the British Ncu'tli America Act 
 applies to Manitoba, and if not, whether sub-section 2 of 
 section 22 of the Manitoba Act is sufHcientto sustain the 
 case of the Appellants, or in other words, whether in 
 
fi 
 
 80 
 
 Manitoha School Cahk, 1894. 
 
 
 ru^'urcl to Manitoba tlio minority liaH tliu Hanio protection 
 against laws whioli the Logislaturo ol' tlio provineu has 
 j)o\vi'r to pass, as tlio nunoritics in otlicr provinces have 
 under llie sub-seetion before ([noted from the JJritisli 
 North America Act, as to separate or denominational 
 schocls establislied nWvr the union. 
 
 7'//e Lord (Hianv.cllor. I do not (|uite folhivv. Are the 
 Manitoba words narrower than \\\y\ IJritish North 
 America Act ? 
 
 Mr. Jilakc. We hokl them to be wider. 
 
 2'he Lord Chancellor. The sugg(>stion here is that tliey 
 are narrower, 
 
 Mr. Blake. Tliey say tiie question arises whether they 
 be narrower or not. 
 
 Lord Hhand. They say it is not identical witli the 
 restriction. 
 
 Mr. Blake. And if not, wliether it is sufficient, or in 
 other words, whether in regard to Manitoba the minority 
 has the same j^rotection as the minorities in other jn'o- 
 vinces huve ? 
 
 The Lord Chancellor. That is wliy it puzzled me — 
 why they say in other words imless you assume 
 Manitoba legislation gives a more limited protection 
 than the Piritish North America Act. 
 
 Mr. Blal'e. I'hat is really the crucial (juestion in this 
 case. That is the (juestion for argument, what is the 
 meaning of that particular section of the Manitoba Act 
 whether it means more, as we contend, or less, as the 
 other side contend ? 
 
 The Lord Chancellor. The British North America Act 
 gives the right of appeal from any Act or decision of 
 any provincial authority. It might be open to question 
 wnether that applied to an Act of the liCgislature — 
 whether " Act " meant statement or enactment. That, 
 of course, is free from any doubt in the Manitoba Act. 
 
 Mr. Blake. I shall have to trespass very much upon 
 your Lordship's attention with a somewhat minute con- 
 sideration of both the Causes. My points will be 
 cumulative and, I hope, conclusive. At present I 
 thought I would not enter in a fragmentary manner into 
 that discussion. 
 
Manitoha Sciiooi, Cask, 1894. 
 
 31 
 
 protection 
 )viiici3 Iiaa 
 incoH lifivo 
 lo Jiritinli 
 iTnnationul 
 
 An; tlio 
 sh Nortli 
 
 that they 
 
 other they 
 
 with the 
 
 ent, or in 
 ! minority 
 3th er pro- 
 
 dcd nic — 
 I assume 
 [jrotection 
 
 m 
 
 The Lord C/ianrcl/or. I ihiiik ihi' I'rivy (yomu'il siiy 
 mon^ in otlier words. 
 
 .]f)\ Ulnkf. This is what thi^ Privy (Joiiiicil meant, T 
 tliink'. and it is absolutely true — ii' Sul)S('eti()n 2 of Se(!- 
 tiou 22 is not sullicieiit to maintain tiu? Appeal by 
 reason of its l»eiu^' less ])ot('Ut than Subscfetiou .'i of the 
 IJritisli \orth America Act, and if that Subsection .'J 
 (h)es not ai>|)ly, then it is tru(^ with regai'd to Manitoba 
 that the minority has not the same protection that the 
 minorities have in the other provinces. That is tiiu 
 sense I think in which the phrase is usetl by the Privy 
 (Joimoil. 
 
 The Lord Ch'ince/lor. Is it certain that you would be 
 right undi-r the British North America Act? 
 
 Jfr. Blake. Oh, yes, absolutely bc^yond the slightest 
 d()td)t according to my conec^jtion. 
 
 Jjord Shdud. Admittedly so ? 
 
 ^fr. lilakc. I. do not know that tlujre is anything 
 a(bnittod in this case. I believe wo are at dagger's 
 [)oints all through. 
 
 Lord Shawl. When you say " absolutely " it looks as 
 it' it ought to be admitted. 
 
 Mr. Blake. T agree it ought to be. I think it is very 
 wronti' that they do not admit it. 
 
 'Ihe Lord Chancellor. Is there any decision upon it 
 which binds them ? 
 
 ^fr. Blake. No, I would siiy, to adopt a phrase pro- 
 perly challenged a moment ago, that that construction is 
 manifestly right. 
 
 The argument presented by counsel on behalf of the petitioners 
 was that the present Appeal comes before your Excellency in Council, 
 not as a request to review the decision of the Judicial Committe of 
 the Privy Council, but as a logical consequence and result of that 
 decision, inasmuch as the remedy now sought is provided by the 
 British North America Act and the Manitoba Act, not as a remedy 
 to the minority against Statutes which interfere with the rights 
 which the minority had at the time of the Union, but as a remedy 
 against Statutes which interfere with rights acquired by the minority 
 after the Union. 
 
 Lord Shand. I understand you to say those rights 
 were acquired by legislation. 
 
32 Manitoma HcirnoF, Cahe, 1804. 
 
 Mr. lilnhr. Vi's, Kiircly (liort! was no oilier way ? 
 
 Lonl SltiiH'L One of tlio cxpivsHions wan " by jn-ac- 
 
 ti('«' 
 
 i; ' 
 
 Mr. Ilhih'o. Tliat was prior to llio Union. I(, docs n»»t 
 ap|tly lo anylliin<4' y>asY union. 
 
 *' Thu remedy, tlicrcforc, which is soiij^ht is ajjainst Acts which arc 
 iiiti'd vires of the Provincial I.cRislaturc. I lis argument is also that 
 the Appeal does not ask your Kxccllency to interfere with any rights 
 or powers of the Legislature of Manitoba, inasmuch as the power to 
 legislate on the subject i»f education has only been conferred on that 
 Legislature with the distinct reservation that your Excellency in 
 Council shall have power to make remedial orders against any such 
 legislation which infringes on rights acquired after the Union by 
 any Protestant or Roman Catholic minority in relation to separate 
 or dissentient schools. Upon the various questions which arise on 
 these petitions the sub-committee do not not feel called upon to ex- 
 press an opinion, and, so far astliey are aware, no opinion has been 
 expressed on any previous occasion in this case or any other of a like 
 kind by your Excellency's Government or any other Government of 
 Canada. Indeed no application of a parallel character has been made 
 sincetheestablishmentof the Dominion. The application conies before 
 your Excellency in a manner difllering from applications which are 
 ordinarily made under the constitution toyour Excellency in Council. 
 In the opinion of the sub-committee the application is not to be 
 dealt with at present as a matter of a pol. ...1 character or involving 
 political action on the part of your Excellency's advisers." 
 
 4 
 
 Your Lor(lslii])s will observe the phrase "at. present." 
 On the preliminary question which is a (piestion whether 
 there are g-ronnds to entertain an Appeal the Coinniitteo 
 thonght they were going to act judicially bnt very 
 properly they added the words " at })ri'sent " because it 
 IS ijuite obvious that when they enter ni)on the sphere of 
 action of entertaining an Appeal their I'linctions must be 
 political, oi' expediency and of disd'etion, jnst as much 
 as the functions which in the last resort upon their 
 recommendation are assignetl to the Parliament of Canada 
 
Manitoha School Cahk, 1894. 
 
 33 
 
 vj\y f 
 
 " 1)V priic- 
 
 :ts which are 
 t is also that 
 th any rij^hts 
 the power to 
 L'rrecl on that 
 excellency in 
 list any such 
 the Union by 
 1 to separate 
 hich arise on 
 d upon to ex- 
 ion has been 
 )ther of a like 
 overnment of 
 las been made 
 1 comes before 
 ns which are 
 cy in Council. 
 I is not to be 
 r or involving 
 rs." 
 
 it prcsont." 
 )ii wln3tlier 
 Coininittee 
 but vcr^ 
 bucauHc it 
 le sj)liin'c of 
 >iiH inust bo 
 rit as much 
 upon their 
 it ol; Cuiiada 
 
 itHcir, of courso a political body. Iftlu' recoiimu'iulation 
 of Hin Kxcolicncy in Council ih not obifytnl by iho Local 
 Aiitlioriii('Htli<'io«lovolvoH uj)on the Parliaiiu'iit of Canada 
 the lio-lit to li'^-iHlato to the extent that iw necoHHary to 
 achieve r<MlresH wanantiMl by tho recoinmeu<lation of lliH 
 Kxcelh^ncy in (Joimcil, Hotli thoHo traiiKactionH tho prior 
 HiibHtantive transaction of (hu-idino- on tlie Action of tho 
 (lovernnu^nt in ('oiincil, and tho Action of the? Parliament 
 in (.anada are of course not judicial but political. 
 
 /"vo;v/ Watson. Tho only ellectivo authority iu the 
 Canadian Parlianiont. 
 
 Mr. lllalx-e. Yos, the onlv authoritv that can do any- 
 thing ; the (Jovernor in Councd (Min roconinuMid only. 
 
 Lnrd Wnt.^on. Tho others may bo of opinion that ycui 
 ought to havo it. l)Ut thoy cannot give it you. 
 
 J/r. liltihe No, but thoy can do that thing without 
 which we cannot got it l)ocauso excerpt upon thoir 
 recommendation the I'arlianu nt of (>anada has no power. 
 
 Lord Wat'ion. Except upon tiiat condition the rarlia- 
 mont of ('anada havo no jurisdiction. 
 
 Mr. lilahe. They have not. Then fore it is ossi^ntial 
 to tho subject l)eing dealt with by tiiat body which in 
 the last resort has thc! power to deal with it thaf it 
 should be treated by this Tribunal. 
 
 Lord Shand. Was this sub-coinmittoo of a legal 
 character ? 
 
 Mr. Blake. If I remember rightly it includeil tho 
 Piimo Minister, who is tho Minister of Justice, and also 
 one or two more lawyers. In point of fact tin; members 
 of ho Cabinet of CaiuKhi are generally lawyers. I can- 
 not be certain whc^ther the Prime Minister was a member 
 of it, but there were certainly some law vers in it. 
 
 Afr. Coi^cn.'i-Ifardf/. It is stated at page 1(). 
 
 7'Ae LortI Chancellor. Sir John Thompson was one. 
 Is that the Sir John Thompson who is Prime Minister ? 
 
 Mr. Blake. Yes ; he was also the Attorney-General 
 and Minister of Justice. Mr. Chapleau was a lawyer 
 of some eminence and filled tho office of Provincial 
 Secretary. Mr. Bowell had the misfortune not to be of 
 the Jiar, and Mr. Daly, I think, was a lawyer though 
 not practising. 
 
 'h 
 
34 
 
 Manitoba School Case, 1894. 
 
 ! tl 
 
 I It: 1 
 
 If; 
 
 
 Lord Shand. At line 42 they say, 
 
 " If the contention of the Petitioners be correct, that such an 
 Appeal can be sustained, the enquiry will be rather of a judicial than 
 a political character." 
 
 Mr. Blake. 
 
 *' The sub-committee have so treated it, in hearing Counsel and in 
 permitting their only meeting to be open to the public. It is ap- 
 parent that several other questions will arise in addition to those 
 which were discussed by Counsel at that meeting, and the sub-com- 
 mittee advises that a date be fixed." 
 
 Then they proceed to state certain preliminary questions, 
 and these I may as well proceed to state here, because 
 these are substantially the questions which they ulti- 
 mately decided should be submitted preliminarily, under 
 a Canadian Statute, to the Supreme Court for deter- 
 mination after argument, and the Judgment u])on that 
 Case so submitted to them is the Judgment which is to 
 be discussed by your Lordships upon this Appeal. 
 Among the questions which the sub-committee regard 
 as preliminary, are the following : — 
 
 (i.) Whether this appeal is such an appeal as is contemplated by 
 sub-section 3 of section 93 of the British North America Act, or by 
 sub-section 2 of section 22 oithe Manitoba Act ? 
 
 (2.) Whether the grounds set forth in the petitions are such as 
 may be the subject of appeal under either of the sub-sections above 
 referred to ? 
 
 (3.) Whether the decision of the Judicial Committee of the Privy 
 Council in any way bears on the application for redress based on the 
 contention that the rights of the Roman Catholic minority which 
 accrued to them after the union have been interfered with by the 
 two statutes of 1890 before referred to ? 
 
 (4.) Whether sub-section 3 of section 93 of the British North 
 Act applies to Manitoba ? 
 
 (5.) Whether Your Excellency in Council has power to grant such 
 orders as are asked for by the petitioner, assuming the material facts 
 to be as stated in the petition ? 
 
 (6.) Whether the Acts of M:.nitoba, passed before the session of 
 1890, conferred on the minority a ''right or privilege with respect 
 to education," within the meaning of sub-section 2 of section 22 of 
 the Manitoba Act, or established "a system of separate or dissentient 
 schools," within the meaning of sub-section 3 of section 93 of the 
 British North America Act, and if so, whether the two Acts of 1890, 
 complained of, afi'ect " the right or privilege " of the minority in such 
 a manner as to warrant the present appeal ? 
 
 I do not think those are textuallv the ultimate 
 questions, but they are substantially the questions, I 
 
 ) 
 
Manitoba School Case, 1894. 
 
 36 
 
 lat such an 
 udicial than 
 
 unsel and in 
 :. It is ap- 
 ion to those 
 lie sub-com- 
 
 questions, 
 3, because 
 they itlti- 
 rily, under 
 for deter- 
 ii])on that, 
 k'hich is to 
 s Appeal. 
 tee regard 
 
 .•mplated by 
 Act, or by 
 
 are such as 
 !ctions above 
 
 of the Privy 
 
 aased on the 
 
 lority which 
 
 with by the 
 
 ritish North 
 
 o grant such 
 naterial facts 
 
 le session of 
 with respect 
 ection 2 2 of 
 )r dissentient 
 3n 93 of the 
 Vets of 1890, 
 ority in such 
 
 ultimate 
 sstions, I 
 
 may say his Lordship, the Chief Justice of the Supreme 
 Court, in delivering judgment upon the Case, boiled 
 down the questions. 
 
 Lord Watson. They were consulted and returned 
 their individual opinions — not in the form of a Judg- 
 ment of the Court. 
 
 Mr. Blalce. They declaree those opinions to be the 
 opinion of the Court. I suppose, perhaps, it might have 
 been more formal if they had found a formal Judgment, 
 but substantially we collect them, and we find the 
 result in our Case. I read to your Lordships the 
 concise form in which the Chief Justice (and I make no 
 substantial complaint of it) puts the qucsticm with which 
 your Lordships have to deal. It is at the bottom of 
 p;ige 165. 
 
 Tjord Watson. Which of those questions did he deal 
 with. ? 
 
 The Lord Chancellor. He dealt with them all. 
 
 I^ord Watson. Did he knock thom all into one? 
 
 ALr. lilalic. Yes, and I think tolerably successfully. 
 To put it into a concise form, the questions which we 
 are called upon to answer are whether an appeal lies to 
 the Governor-General in Council, cither under the 
 British North America Act 1867 or under the Dominion 
 Act, establishing the Province of Manitoba, against an 
 Act or Acts of the Legislature of Manitoba passed in 
 1890, whereby certain Acts or parts of Acts of the same 
 Legislature, previously passed, v/hich had conferred 
 certain I'ights on the Roman Catholic minority in 
 Manitoba in respect of suparate or denominational 
 schools were repealed. The question, therefore, is one 
 of novelty, and one of great importance. The position 
 of the minoriti(.>s, general and local, throughout the 
 Country render it one of very widespread interest and 
 ini])ortance all over the Dominion. Speakinfr very 
 roughly, the Roiran Catholics form somewhere about 
 two-fifths of the population of the whole Doiu.nion. In 
 the Province of Quebec they are in an overwhelming 
 majority, perhaps five-s'xths. In the other ])rovince8 
 they ai'e in minorities, roughly speaking, of one-fifth or 
 one-sixth, or something of that kind, so they are in a 
 
.1 
 
 \\ 
 
 86 
 
 Manitoba School Cask, 1894 
 
 t ^l'. 
 
 \' I i^ 
 
 minority everywhere except in Quebec, and in a niiijority 
 there so overwhehning that the Protestants in that 
 province occupy towards them tlie same rehition of 
 weakness which they occupy of strength in the other 
 provinces of the Dominion, and in tiie aggregate in the 
 Assembly of hist resort, before wliich the uhimate 
 decision of this question is to come, if there be a case for 
 an appeal the Roman Catholics are still in a minority. 
 Under the clause of the Manitoba Act which is th(3 main 
 ingredient of this case, section 22, which unquestionably, 
 as I shall show your Lordships, was designed 
 upon the face of it to give as much and more 
 consideration to the position of the religious 
 minority in that province than had been given 
 or might be argued to have been given by section 93 of 
 the British North America Act, as much at least, and 
 in some particulars more, and in no sense, as I 
 shall argue less, under the construction which has 
 been placed upon that clause it has turned out that the 
 situation of things at the time i . the Union was not such 
 as to give to ^he mivority the rights which they or some 
 of them hoped they would have obtained by virtue of 
 the first sub-section. There remains only practically for 
 consideration whether they have the mmor but the not 
 unimportant, and on the contrary, as they estimate it, 
 the invaluable right of appealing to the Governor in 
 Council, a political body it is true, and to the Parliament 
 to which that Government is responsibh'. a Parliament 
 in which they are in a minority very much smaller than 
 cbe proportions of the population. Speaking again 
 roughly, my recollection is that the Roman Catholics in 
 the Parliament of Canada are and always have been 
 about one-third of the body. It is to a body overwhelm- 
 ingly Protestant that the Ronuiii Catholics appeal 
 for redress against acts of the Provincial Authori- 
 ties which as thev conceive affected the riiihts and 
 privileges accorded to them by the local legislature. It 
 is plain, as ajjpears by the circumstances of the case, by 
 the documents which are before your Lordshi])^ and 
 indeed as appeared and was stated in the judgment 
 which was delivered by this Board on the former occa- 
 sion, that the question is one of deep interest, not only 
 
 I 
 
 i 
 
Manitoba School Cask, 1894. 
 
 87 
 
 niJijority 
 in that 
 lation of 
 lie other 
 e in tho 
 iihimato 
 1 case for 
 
 iiinority. 
 th(j mam 
 tionably, 
 Llesigncd 
 id more 
 religious 
 1 given 
 on 93 of 
 oast, and 
 so, as I 
 lich has 
 that the 
 not sueli 
 or some 
 i^irtne of 
 ically for 
 t: the not 
 rimate it, 
 ernor in 
 rliament 
 rliament 
 lh>r than 
 again 
 lolics in 
 ve been 
 fvvhehu- 
 appeal 
 \utliori- 
 its and 
 
 U1"0. It 
 
 ase, by 
 ])h and 
 dgment 
 er occa- 
 ot only 
 
 [' 
 
 I 
 
 to I lie IVovinee of Manitoba, but also throughou' the 
 wlioU; of the Dominion. It is a (|uestion, cognato it is 
 true, but entirely distinct from, and esscmtially dilfering 
 from the questi<m which has been already before the 
 l)oard. It comes up under other clauses. It deals with 
 a diH'erent state of tilings. It proposes the application 
 of altogether a different antl a very much more elastic 
 remedy. 
 
 Lord S/mnd. Is it any where succinctly stated what 
 theses privileges are, or have you read anything which 
 shows it? 
 
 Mr. Jl'ake. I have not read anything y(3t. I am about 
 to rcnid an authentic document which states them pretty 
 satisfact( rily. 
 
 yitc Lord Chancellor. Do you say that these provisions 
 r(^lat(! only to rightn secured by legislation subse(pient to 
 the Union ? 
 
 Mr. Blake. I do. 
 
 The Tjord Chancellor. By legislation ? 
 
 JAr. Blale. I do. 
 
 The Lord Chanc'llor. Do you m(3an by that that when 
 there has been an Act we will say in the direction desired 
 by tho Roman Catholic minority that Act can never be 
 repealed ? 
 
 Mr. Blake, No, n(^t at all. 
 
 Lo7'd Macnaz/hten. It uuiy be the subject of Appeal to 
 the Governor. 
 
 The Lord Chancellor. That is what I mean. Though 
 exclusively created by the Provincial Legislature, the 
 power that created it has not the power to put an end 
 to it. 
 
 Mr. Blake. Yes, no mKj^ualified power : that will be a 
 part of my argument. I deny that the Provincial 
 Legislaturii have any unqualified power as to any 
 subject of legislation at all, either to legislatei or to repeal 
 legislation ; but I say in this case, their power is by the 
 express language of the clause which gives it to them 
 subject to the special restriction. 
 
 Lord Shand. If the Appeal is bc>fore the Governor, 
 would he be entitled to take political c(msiderations into 
 view. 
 
ll 
 
 38 
 
 Manitoha School Case, 1894. 
 
 Mr Blake. Doubtless. 
 
 Lord Shand. That is what you got into il" your Appeal 
 is a successful Appeal. 
 
 Mr. Blake. I should say so. 
 
 Lord Shand. It is not a more consi ruction. That is 
 out of it. It would be purely poliiical, I suppose ? 
 
 Mr. Blake. It is not out of it. That is one of the 
 reasons we are here. Suppose the case of post Union 
 privileges granted and retracted more or less then the 
 Council has to decide ; first of all, whether the Case 
 comes within the law at all ; secondly, whether there 
 has been such a retraction, and then they proceed to 
 decide what they think ought to be done in order to 
 give to the minority substantially the position which 
 has been withdrawn from them. 
 
 Lord Watson. The very first question to bo determined 
 is what, if any privilege was acipiired after the Union ? 
 
 Lord Shand. Surely if it were not a question of 
 political character to some extent that would be deter- 
 mined by Courts of law. 
 
 Mr. Blake. In my conception after His Excellency in 
 Council has got rid of this preliminary (piestion and by 
 the light that the Courts of Justice throw upon the 
 construction of the Statutes has found that there is a 
 case for entertaining an appeal he proceeds to deal with 
 that ex necessitatae ret in a political sense, because what 
 is to be done ? Counsel is to say to the Legislature of 
 Manitoba, we think such and such things should bo 
 done in order to restore to the minority the rights which 
 we think they had and which we think they ought to 
 have back again. 
 
 The Lord Chancellor. All we have to see is what we 
 think the jurisdiction of the Governor-General is. 
 
 ]\lr. Blake. The question whether upon the whole 
 acting in their political capacity, the Privy Coimcil 
 believes that they ought not to act, or to act in what we 
 may consider a lame and half-hearted way, or to go the 
 whole length of our demand, is no part of the question 
 I have to submit to your Lordships. 
 
 Lord Watson. If our duty is limiteci to that, it must 
 also be limited to deciding whether prima facie a case 
 has arisen. 
 
Manitoba School Case, 1894. 
 
 39 
 
 I 
 
 }fr. B/nke. Perlmps so. 
 
 Lord IVdtson. It may be that after fiiil consideration 
 jmd ]ioarini>' the grievance.' out, wo may come to bo satis- 
 Jiod tliat there is no real grievance. 
 
 Mr. Blake. I ask no more. 
 
 Lord ]V(itson. I sii[)p()se wo are not asked to give any 
 such iinding or opinion as would tie the Governor- 
 (ienoral to follow any recommendation of the Canadian 
 rarliament. 
 
 J/?'. Blake. I do not think your Lordslii])s are. I do 
 not like to make an absolute concession at this time. 
 
 Jjord ]Vati>i>n. I rather took it from your statement 
 that we are in a position in which we ought not to do 
 that. 
 
 Mr. Blake. I think your Lordships are not bound to 
 go i'urther. 
 
 Ljord WaUon. I suppose we are bound to give liim 
 advice in this Appeal. He has asked nothing (ijso but 
 advice throughout. He has not asked for a political 
 decision which shall fetter him in any way. . 
 
 ^fr. Blake. It could not be. The law which creates 
 \]w Tribunal for the purpose of giving advice expressly 
 states that in their political capacity they are not bound 
 by that advice. 
 
 Jjord WatHon. That is a Canadian Statute. 
 
 Mr Blake. Yes. 
 
 Jjord Watson. A Canadian Statute which authorised 
 the Governor-General to consult the Supremo Court and 
 lays a duty on the judges of the Supreme Court to give 
 advice. 
 
 Mr Blake. Yes. 
 
 Jjord Shand. Is it to be your argument that the Legis- 
 lature of 1890 was idtra vires upon this matter ? 
 
 Mr Blake. No, that is concluded. 
 
 Jjord Hhand. That is concluded even in this (juestion. 
 
 ^fr. Blake. I agree. 
 
 Lord Shand. It occurred to me, if that were the kind 
 of (piestion that would be more f(U' a judicial tribunal, 
 but that is concluded by the former decision, even as 
 applicable to tho present. 
 
 Mr Blake. Yes. 
 
40 
 
 Manitoha School Cask, 1894. 
 
 
 !i I 
 
 U ;'i 
 
 Lord Watson. TIk? Governor-Gonoral is hero asking 
 us to givo him our sulvico in tlie form of iin appual. 
 
 Mr. Blale. Tho Canadian LegiHlatiiro as far as it 
 coiikl assimilated the finding of thi^ Supremo Court, 
 around which tliey east all the guards and cheeks pos- 
 sible, by providing for Counsel, and so on ; they as far 
 as they could assimilated that to a decision in an action 
 at law and expressly allude to that question of an appeal 
 to the Board. 
 
 Lord Shand. What was it in the result that the 
 Judges did recommend to the Governor-General ? 
 
 The Lord Chancellor. It is impossible to say what 
 they recommended till you read the questions and read 
 the answers to each one. 
 
 Mr. Blake. By a majority of three to two, but differ- 
 ing in its composition, they answered each question in 
 the negative. That is as far as 1 can say in one 
 sentence. 
 
 Lord Watsoti. For reasons identical, pro and con, or 
 for different, reasons ? 
 
 Ml'. Blake. Ah, no. Your Lordships know the 
 Supreme Court. One question which they answered in 
 our favour by this majority, and in respect of which, 
 unfortunately, some of the Judges favouring us other- 
 wise were against us, else we should not have been the 
 Appellants, on this occasion, was, whether the decision 
 of your Lordships on the former occasion had con- 
 cluded the questions against us. On that question 
 we have a negative answer by three to two. The Chief 
 Justice was of that opinion, he was against us on the other 
 five questions, but he was with us on that question, and was 
 of opinion that the decision of this l^oard did not affect the 
 question then before the Court. That made a majority 
 of three to two in our favour upon that question. 
 Therefore there is upon that no appeal by us now. I 
 will say upon it only a very few words, which I say not 
 so much because I even understand that the proposition 
 is to be seriously disputed, as because it is perhaps 
 needful to clear up from the Judgment itself and from 
 the facts of the case what the real thing is which has 
 been decided as contrasted with that which is now up 
 
Manitoha School Cask, 1894. 
 
 41 
 
 ^ 
 
 
 for Jiul^mont. I say ilic ])oint of lliiy (jucHtioii whicli 
 is siil>inilted lo your LordsliipH m Hubslantiully ilic 
 (|ii('s(ion vvhofliur rights or j)rivilo<i,os ac(|uiriHl by post 
 Union legislation intra vires, and afterwards atfcctod by 
 later ])rovin('ial legislation intra vires also, but subject as 
 w(> contend to this Appeal, is subject to the Appeal or 
 no. We do not say that this legislation is void, we say 
 only that it is subject to this Appeal. 
 
 i'he Lord CknnccUor. The only (pu'stion before the 
 Jioard before was the validity of these Acts, was it not? 
 
 J/?-. Wake. The validity of the Acts of 1890, and that 
 validity was to be tested by the condition of things by 
 law or ])ractice as existing at the Union. I will run 
 very briefly over the points in support of the proposition 
 that yom* Jjordships have not dealt with adversely, nay, 
 I say as far as the leanings and indications of this Board 
 went they were favourable even when the question has 
 not been disposed of 
 
 Lord Sliand. That is a matter which stands in your 
 favour now. 
 
 'ihc Lord Chancel lor. Surely if the question then was 
 the validity of the Act, and if this present argument 
 assinnes the validity of the Act, it is clear that this 
 (picstion cannot have been determined by the last Case. 
 Perhaps it is a rash thing to say one sees there is a 
 ditference of opinion, that I ought not perhaps to have 
 said that, but it strikes one so as a matter of hrst 
 impression. 
 
 Afr. Blake. My learned friend tells me, as I expected, 
 that he does not agree. 
 
 Lord Hhand. It is to be maintained against you that 
 you are prechided by this decision ? 
 
 Mr. Blake. Yes. 
 
 Lord Watson. I can (piite understand it is to be main- 
 tained against you that the principle upon which their 
 Lordshi[)S proceeded in the former case if it applied in 
 this cas(^ ougiit to be fatal to your agreement. 1 SMp[»os(! 
 that is the way it is dealt with, not that it was directly 
 matter of decision. 
 
 Mr. Blake. I did not suppose that I did not put it in 
 that technical form. I understood my learned friend to 
 mean 
 
 ii 
 
 ii 
 
42 
 
 Manitoha vSchool Case, 1894. 
 
 .1 I - 
 
 I li 
 
 t 
 
 i,j 
 
 Lord ]V(itmn. That there wore principles or rules hiid 
 down in tliat case wliich would prejudice you in your 
 
 ar^'unienl 
 
 The Lord i'luincellor. 1 thiidc it is ^•(3n(M'ally convenient 
 not to ar^'ue a point wliich has been (h'cidcd in your 
 favour. It only makes the ar^-umenta ^roat dcsal longer, 
 without nuich benclit. We shtiil hear it from them, and 
 ■then you will have a reply. 
 
 Mr. Jilake. Verv well, mv Lord. Omittinu,', then, on 
 that statement the consideration of that question, and 
 assuming that the case is absolutely Tree, it yet devolves 
 on me on one or more points in the argument to allude 
 to passages in the Judgment tor other reasons. I 
 suppose that these questions, sub-dividing the single 
 proposition, tlu^ single phrase in which the Chiei' Justice 
 of the Supreme Court stated their essence, divide them- 
 selves mainly into two, one :is to whether subsection 3 
 of section 1)3 of tlu; IJritish North America Act has 
 application to Manitoba ; I mean direct positive appli- 
 cation, for application of the most vital consequence in 
 all other phases of the discussion section 93 necessarily 
 has, but whether it is directly applicable to and is a 
 governing sentence 
 
 T/ic Lord Cham'cUor. Did Manitoba come unto the 
 Dominion afterwards ? 
 
 j\[r. Blake. Yes, Manitoba came in under its Special 
 Act of 1870. It was created in 1870 out of the Hudson's 
 liay Territories. 
 
 The Lord Chancellor. This may be a (Question of con- 
 troversy or it may not. When a new Province canio 
 into the Dominion did the British North American Act 
 ipso facto apply ? 
 
 Mr. Blake. Not ipso ficto. Provinces miglit come in 
 in various ways. Some Provinces come in upon 
 addresses of the Houses and of the Provinces to the 
 Queen in Couacil. 
 
 Lord Watson. Certain provinces were named in the 
 Act. 
 
 il/?'. Blake. Yes, there were four. There was pro- 
 vision for the admission of other provinces from thne to 
 time. The general machinery was that there should be 
 
 ■I 
 
Manitoha School Cask, 1804. 
 
 43 
 
 ulcs laid 
 ill yonr 
 
 ivcuiont, 
 
 ill your 
 
 I lon^'or, 
 
 0111, und 
 
 leii, on 
 
 tl 
 
 ion, and 
 lovolves 
 :) alludo 
 ion a. I 
 ! sin^-lo 
 ' Justice 
 o tlioin- 
 L'ction 3 
 Vet lias 
 
 appli- 
 ence in 
 'ssarily 
 id is a 
 
 1 to the 
 
 Special 
 idson's 
 
 f con- 
 caino 
 111 Act 
 
 )me in 
 upon 
 |to the 
 
 in the 
 
 pro- 
 lue to 
 lid be 
 
 joint addresses of the Parliament of Canada and of the 
 proviiiet'S eoneeriied to ihe Queen in Council, and those? 
 joint addresses beiii*]!; ideiilieal slatcMl the terms of the 
 Union, and then an Imperial Order in Council was 
 passed briii.L'iiig the province into the Union upon those 
 terms, which terms introduced the clauses of the British 
 North Ameri(;a Act with such sli^'ht exceptions or 
 modifications as ini,u:ht l)e reipiired, the main one beino- 
 that there were in the Uritish North America Act certain 
 clauses which ap[)lied (mly to one or more, and not to 
 all the provinces, and these mii^ht or mi^-ht not be 
 ap[)lied to any province. Ihit this of Manitoba was an 
 exceptional ease, because here you had no legislative 
 body, no representative body, in that unorganised coni- 
 munitv which was about to be induced to assume the 
 status of a province, being at the time nominally, though 
 not more than nominally, under the control of the 
 Canadian Parliament, because your ]jordships may 
 remember that the Hudson's l>ay Company's territories 
 were assigned over to Cannda, that there was a resis- 
 tance; on the part of the population largely upon this 
 (piestion to the entrance of the Canadian officials, that 
 there was a riot (dignitiiHl by the name of a rebellion), 
 and tJiat, ultimately, delegates came down, neg(»tiations 
 took place, and the Manitoba Act — the Act in question 
 — was passed. That^fanitoba Act had not the character 
 of permanence which the constitutions of the other pro- 
 vinces had, because it was passed by the Parliame.'nt of 
 Canada, which might have repealed or changed it, but 
 it was confirmed and made jDermanent by the Imperial 
 Parliament, and so that province acepiired its rights by 
 a title as solid and enduring as the other provinces. 
 What I was saying was that the rpiestion miglit be sub- 
 divided into these two (piestions, the hrst applicable to 
 Sub-section 3 of Section 1)3 of the JJritish North America 
 Act. _ • 
 
 The Lord ChameUo,'. You say that the liritish North 
 America did not ipso Jiido become applicable because 
 Manitoba became a Province. How is it suggested that 
 section 93 of the ] British North America Act became 
 applicable to Manitoba. 
 
44 
 
 Manitoha School Cask, 18!)4. 
 
 Mr. lUal'c. Tn \\w Act wliicli creulod (ho rroviiico of 
 Maiiito))ii and wliicrh wuh conliriiKMl uh J liav»' said, jlio 
 Mrilisli North Aiucrica Act Ih made in a 0(M'tain ^oiicral 
 H('ns(> and in a ('(^'tain gonoral way aj»i)!i('al)io. 'I'lio 
 qucKtion is wlustlior (lioso ])aiti('ular clausi's of it are 
 ai)nli(.*abl('. That is tlio whole qucBtion. I am not 
 ^oni^ to detain your IjordshipH nioro tiian a nioniunt on 
 tliat (luostion, becauHo I have to aiWrosH your Jjordslnpfi 
 at groat length on otlior points on which I can do so 
 nioro nsefnlly. My intention is to rely on the reasons 
 of Mr. Justice Fournier given at page 177, hne 2i), of 
 tli(5 Judgment (beginning with the v/ords " Docs sub- 
 section 3 of section 93," &c.) as indicating the application 
 of sub-section 3. [/SVe infra.^ 
 
 The Lord ('hance/hr. Do you say that this section of 
 the British North America Act is more favorable to you 
 than the section of the Manitoba Act? 
 
 Mr. Jihikc. I do not tiiink so. 
 
 lite Lord Chanceli'or. Supposing it differs, which 
 prevails ? 
 
 Mr. Blake. The theory was stated in that passage of 
 the Judgment to which I have just referred your Jjord- 
 ships. AH the sections of the British North America 
 Act arc to apply provided they refer to all the provinces 
 except where they are varied by the Act in ipiestion. 
 Some of the clauses of si-ction 93 are expressly re- 
 enacted textual ly by Section 22 of the Manitoba Act. 
 Some of the clauses are re-enacted textually with a slight 
 addition as of the words " or piactice." I do not suppose 
 it coidd be serionsly contended in such cases that the 
 clauses of the Britisli North America Act were intended 
 to have a vigour of their own because there is an express 
 provision with a slight alteration. As to this particular 
 sub-section 3. 
 
 The Lord Chancellor. Does that appear re-enacted ? 
 
 Mr. JJ/ake. Tlien^ is another, sub-section 2 of the Mani- 
 toba Act, which we contend does as ni\u'\v or more but 
 in a ditforent phraseoh)gy. 
 
 Mr. Blake. Yes. 
 
 Lord Shand. If one failed you would fall back on the 
 other. 
 
 Mr. Blake. Yes, the learned Judge suggests that it is 
 in addition to it. 
 
 ^.i 
 
 l^v 
 
ovinco (tf 
 said, tlio 
 II general 
 .lo. T\w 
 of it aro 
 am not 
 Dinoiit on 
 jor(lsliij)H 
 L'an do HO 
 I reason H 
 no 2i), oC 
 'ocs snb- 
 )p Heat ion 
 
 section of 
 •le to you 
 
 s, wliich 
 
 asHagc of 
 
 lur Jjord- 
 
 Ameriea 
 
 provinces 
 
 iinostion. 
 
 ^ssly re- 
 
 oba Aet. 
 
 1 a sliglit 
 
 suppose 
 
 that the 
 
 intended 
 
 express 
 
 articular 
 
 nacted ? 
 le Mani- 
 lore but 
 
 k on the 
 hat it is 
 
 i 
 
 Manitoba School Cask, 1894. 
 
 a 
 
 J 
 
 ; 
 
 '/'lie Lord (^hancellor. Th it not railier against tliat that 
 vou iind some of the sub-S(;ctions textually re-enaeted ; 
 *s(mie with aUerations that might be a reason for putting 
 them in ? But if you iind, whilst some are textually 
 re-enacted there is one not re-enacted, and you Iind a 
 sjM'cial enactmt^nt which cK^als with that same subji^ct 
 matter, woi'.' 1 not the; natural inference he that that was 
 intended to be the substitute for that? 
 
 Mr. lilakc. I have no doubt tiiat is the argunu'nt 
 that will be addressed to your Lordsliips in answer to 
 my argument ? 
 
 Ihe Lord Chancellor. You argue that the Manitoba 
 Section is just as good for you as the other ? 
 
 Mr. Jihlce. 1 do in a different Ibrm. I contend very 
 strongly for that, but I liave to proceed when \ get a 
 little further on to discuss the clauses of the IJritish 
 North America Act as exhaustively as if they had direct 
 applicatio!!, even those which I concedtj have no direct 
 application because of this. — It is perfectly phiin that in 
 construing the Main Constitutional Act, and this graft 
 on the Main Constitutioiuil Act, we must look at 
 both ])rovisions, in order to deal first of all with that 
 whic^h [ venture now to say is the basis of the Manitoba 
 clause, and which is, at any rate, in jmri materia 
 with the Manitoba clause, and 1 trouble your L(mlships 
 with a full discussion upon the clauses of the liritish 
 North America Act with the less reluctance because the 
 main bulk of everything I have to say on the liritish 
 North America Act has direct application to the Manitoba 
 Act. It would have to be said even if the British North 
 America Act were not there at all. 
 
 Lord Shand. Were you going to read that passage at 
 page 177 ? 
 
 Mr. lilake. I will read it if your Lordship wishes. 
 
 Lord Shand. Not unless you inten i to. 
 
 Mr. Blake. I was anxious to open my argument as 
 soon as I could, knowing that under any circumstances 
 I shall be taking up a great deal of your Lordships' 
 tune. 
 
 Lord Shand. This very much embraces the substance 
 of your argument. 
 
46 
 
 Manitoba SniooL (^Arti:, 1891. 
 
 
 Mr. lUiike. VcH, lli(» Hul)KtaiU'{! of wliat my ar^imi(;nt 
 on thai Hul>j('('t would bo il" I had statt'd it. 
 
 fjord Watson. A [)OHt-a('i[uir('d h'gal ri^'lit or privihjg'u. 
 Tliat in wliat 3-011 Hay ? 
 
 Mr. lUnLe. Yes. 'V\\(\ chuiHos of botli StatntoH aro to 
 ho found in tli(^ AppcliantH' case — th(* chiumi of tho 
 IW'iliHli North America Act at pa^c 2, and tlic chiiiHo of 
 the Manitoba Act at pa^'c .'{. 
 
 Mr. (.'ozms-Jfart///. Vour Lordships will fmd (hem 
 Hide l»y side in parcllcl cohnnns on pa^o3 of tho Ucspon- 
 dont's (y^iso. [l*(i(j<' 12 .snjtra]. 
 
 Mr. Blake. I gave your Lordships tiie Apjx'lhints Cwav. 
 towards which I have a natural h^aning. 
 
 Lord Sliand. It is a great convenience to have them 
 side by side. 
 
 ^fr. Tilakc. Yes. 'VXnm I will tak(! ])ago 3 of tho 
 Kespond(!nt's (^ase. Now the enabling clause is "the 
 said legislature may exclusively make laws in relation 
 to education subject and according to the following 
 provisions." That is the clause in both. 1 am reading 
 from section i).'J of the Hritish North America Act and 
 section 22 of the Manitoba A(!t. They aro identicid so 
 that tlie ])ower given to the Provinces of (Janada origi- 
 nally, and to the I'rovince of Manitoba when it was 
 created is " exclusively to make laws in relation to edu- 
 cation std)ject and according to the following provisions." 
 The ([uestion is what tliose provisions are by the Jh'itish 
 North America Act, and what differences, if any exist 
 in those jjrovisions in the Manitoba Act. I call your 
 Lordshi])s attention to the phrase " in relation to 
 education." That is the widest ])hrase. It is the 
 enabling phrase. It is the all embracing phrase and the 
 form of it and the use of it, and the circumstances in 
 which it is used here enable me to induce an arguminit 
 when I come at some I feardistant time to the end of this 
 clause, where yonr Lordships will si>e the same phrase 
 recurs '' in rehition to education." This is one of the 
 points of distinction between sub-section 1 and sub-section 
 3 in which one of the elements is that " in relation to 
 education " occurs in sub-section 3 and in sub-section 1 
 "a privilege with reference to denominational schools." 
 As we say it is a larger phrase and a dilferent phrase in 
 
 I 
 
Manitoha School Cakk, 1894. 
 
 47 
 
 sub-Ht'ctioii '^ ft'oin siil>-H('('li()ii 1 , and I ;j,'iv(' a coldur, atul 
 Htrcn^i'lli and cxh'iil to \\\v plirasn hy showing" to your 
 l^ordsiiipH tliat it is the pliras*; which tlic h';4iHlatiiri' has 
 ad()|il»'d, that wht'ii it wvino to ^-ivo the j)roviiu'ial 
 K'niHhituro power to mako hiwa it waH " in rohition to 
 I'thication." 
 
 /,(»'>/ W'dtsott. 'I »- 'V had liic cxciiisivc power whatc^Ncr 
 may he its extent. 
 
 J/r. IU<,U>. Y(^H. 
 
 Lnril Shawl. Wliat paiticular force (h) yor. gi't by tho 
 words " in rehiticni to education " that do not occur to 
 n»e on reading" tl»ein. 
 
 Mr. /i/dlio. I ask niyHidiiu what stjnso tlie pliraso was 
 used in that chiUBe ? I answer tliat it is hauguage of 
 tiio widest oliaracter, and that tho ])urposeH wore of tlio 
 wicU^st charact(4', and therefore I find that it is a very 
 wi(h' ])hrase. "In rehition to c(hication " (hx's not 
 mean niendy EUMnontary Scliools — it nunms any sid)jcct 
 all'ecting education at all, and tlien I liud liavin^* nivcii 
 that intc^rpretation, tho natr.ral inter j)retation to tho hm- 
 ^•ua/j,'e in the phico in whicli it occurs, that tlie same 
 ])hrasiMs used at tho (Mid of suh-so "on ^^, and \ ask 
 your Lordships to re«j,'ard that circunistanco when you 
 are called on to contrast it with, and by my friend on 
 tho other side, to assimilate it to tlu; ])hrase — " With 
 n^spect to Denominational Schools " which occurs in 
 sub-section 1. I have come a little ])rematurely into 
 that, but th(( contention on tho other side is that sub- 
 section 3 has a relation to or connection with sub-section 
 1, and, when I ^et to sub-section 8, I shall ask your 
 Lordship to rocur to the I'act J have now stated. 
 
 I'/ie Lord Chancellor. Tt cannot aj)plv oidy to that 
 obviously, because sub-section 1 is to dciine the ri^'hts 
 and privile^(>s at the Union, and sub-section 3 certainly 
 extends to thin,ii's established al'terwards. 
 
 j\[r. Blake. Tlu>ro are at least lour marks of distinction 
 of which this is one which I am only illustrating' at this 
 moment, because in going' through the clauses in tlnir 
 order the pliri so " in relation to education " occurred. 
 But that power, >'l-ombraeing' though it is as to education, 
 is yet " subject and according to provisions," and your 
 
 ■\' 
 
 m 
 
48 
 
 Manitoba School Case, 1894. 
 
 Lordslii[)S have alroady hold that the effect of those 
 words is that if the provisions which are found kter are 
 contr.'ivened bv the haw, the hiw is void. The law is 
 void and beyond the power of the le«!,'is]ature to the 
 extent at any rate of the contravention, and perhaps 
 beycnul, because it may be impossible to separate the 
 contravening part from the other, and to give ellcct to 
 the Statute. That is one of the ])()ints decided by the 
 ])oard in the course of *he illscussion of the other cases. 
 
 Then, my Lords, I take sub-section 1 of the liritish 
 North America Act, which dilfers only from sub-section 
 1 of the Manitoba Act by the addition of the words " or 
 practice," and I ask your Lordship to refer to that 
 phrase " with reference to denominational schools," 
 which is the phrase which is contrasted with, or rather 
 is alleged to be the same as " in relation to education " 
 in the third sub-section. Now the Im])erial V "liament 
 when they were enacting the British North America 
 Act, were conjoining four provinces. Nova Scotia, New 
 Drunswick, and the two provinces, newly created, or 
 Svi lo speak, restored provinces of Ontario and Quebec. 
 In Nova Scotia and New IJrunswick there were no pro- 
 Union rights or privileges, unless it be alleged that the 
 right of using the Douay Version for the IJible teaching 
 in certain schools was a privilege in the Province of 
 New Brunswick ; but that is not material to the present 
 vliscussi(m as far as I can see. So that Nova Scotia and 
 New Brunswick are to be put out of sight as being dealt 
 with by Sub-section 1. In Ontario the general system 
 of education was non-denominational, partly no doubt 
 because there the overwhelming majority of the people 
 were Protestants of different sects ; and in order that 
 they should unite in a ])ublic si-hool systt^n, it was an 
 element of necessity that the general plan should be 
 non-denominational. There were there certain slight 
 religious exercises subject to a conscience clause ; but 
 while the general system was thus denominational — 
 there were certiiin •ights given to the Poman Catholic 
 denomination under the Ontario Separate Schools Act. 
 The Roman Catholic denomination had the right to set 
 up separate schools, and these separate schools when 
 set up were under the control of the public authox ities. 
 
Manitoba School Cask, 1894. 
 
 49 
 
 Lord Watson. Upper Canada and Quebec had logiwla- 
 tion of their own, had they, at that time? 
 
 ^[,-. Blake. Doubtless. 
 
 Lord ]\'atson. They were brought in by sub-section 2 
 of 189.'). Tliis rii>'ht is made reciprocal in these two 
 ])rovinces. Whatt^vcr ri«;'hts tlie Cathi.Mcs liad in Upper 
 Canada the Protestants had in Qncbec. 
 
 Mr. Blake. The Protestants and Uouian Catholics were 
 ])rotectcd to<^'ether in Quebi'C. 
 
 Lord WaiAon. 'Wa Protestants had in Quebec the 
 same ri«i'hts of minorities. 
 
 Mr. Blake. liut there th<' Roman Catholic local 
 iinnorities were given the s .me riglits by sub-si'ction 2. 
 Hut I was endeavouring to ex])lain what the state of 
 things liad been in Onrario. 
 
 Lord Watson. Then? was no provision made with 
 respect to reciprocal ecpiality in any other province. 
 
 JAr. Bhdi-e. No, I do not think it ever was the intent ot 
 tlie British North America Act to alter the conditions in 
 the other ])rovinces. Ontario an'l Quebec were in a 
 ditVerent ])osition. Tliey were being separated. They 
 were together up to the moment of this Act, 
 
 Ljoril Watmn. They were one province. 
 
 ^^r. Blake. Yes. 
 
 Lord Watso)i. And had been for nearly 40 years in 
 Union. 
 
 Mr. Blake. For 25 years or so — a quarter of a century 
 — from 1841 to 18(i7. It is a long while now since the 
 British North . America Act was passed. The system 
 which (so far as the rights which the minorities, or the 
 rights whieh any class of persons at the Union had) was 
 crvstjillised in Ontario, was a svstem under which, 
 si)eaking generally, thdv was non-denominaticmal edu- 
 cation, with a right to the Roman (Jatholics to set up 
 S(>])arate schools. 
 
 Lord Sliand. With the right to any denomination to 
 set up separate schools ? 
 
 Mr. Blake. No, I think not. 
 
 Lord Shand. I think Lord Watson said that whatevci 
 rights the Roman Catholics had the Protestants had the 
 same, 
 
50 
 
 Manitoba School Cask, 18{)4. 
 
 Mr. Blal-e. That was in tlio proA'inoo ol" Qiioboo. 
 
 Lord Shand. J thought you wore talking of Ontario. 
 
 Mr. Blake. Not at that point. 
 
 Lord Shind. T lioard that ohscrvation mach', and I 
 thouglit you asHont(Ml to il. 
 
 Mr. Blal'e. No, my Lord. Jlis Lordship perhaps over- 
 looked one senlenco as to Q)iiel)ee. 
 
 Lord Hltand. \ am s])eaking ol' Ontario alone. 
 
 Mr. lilake. Yes, that is what 1 am trying lo do. 
 There wjis a certain condition, namely, where the teacher 
 in a public school was a Eonian Catholic in which case 
 some limited right was given to the Protestants in the 
 Province? of Ontario. It is not worth speaking about. 
 The Protestants were dominant. If the sects could 
 agree amongst themselves, they were live to one, and 
 the general system they had engrafted on themselves 
 was non-demoninational. 
 
 Lord Shand. If that was so, surely they had the sanu3 
 privilege as the Roman Catholics of setting up any 
 schools they liked. 
 
 Mr. Blali'c. No, they did not want it. They did not 
 take it. Tlu'y might have taken it, of course. 
 
 Lord Sliand. That is all I nu>ant. They had the same 
 power. 
 
 Mr. Blalv. No, my Lord. The Legislature could 
 have given it to them, but it did not, They had not the 
 power. They were dominant in the sense that they 
 were five to one, and returned" five to one of the 
 members, and directed the c(uu'se of legislation, but the 
 legislation was not that at all. 
 
 Lord Shaud. They were content, wert^ they. 
 
 ]\fr. Blake. They consenti'd to and preferred the 
 system of non-denominational education, subject to this 
 right to the Ponum Cvatliolic denomination, to which 
 some of th{3 minority, and which was indeed ])assed in 
 the common Ijegislaturt; by tlie influence of i,^uebec, ob- 
 jected, and that was the system (Migrafled on Ontario, 
 and crystalli/ed at the tiuu^ of confederation, hi Qut'bec 
 the majority was of a different type. The majority 
 belonged to one denomination instead of twenty or 
 thirty as in Ontario, though I am glad to say they ari^ 
 reduced to five or six now, of any account, The pre- 
 
Manitoua School Cask, 1894. 
 
 51 
 
 ntario. 
 i! and I 
 ipsovcr- 
 
 ; jo do. 
 3 teiK'licr 
 icli C'uso 
 s in tlio 
 o; iiLout. 
 ts could 
 one, and 
 L'nisclves 
 
 tlio same 
 up any 
 
 did not 
 
 the same 
 
 re conld 
 d not the 
 hat they 
 of thV, 
 ])nt the 
 
 •red the 
 •t to this 
 () which 
 )asscd in 
 '])('C, ob- 
 
 Ontai'io, 
 1 Quebec 
 majority 
 
 only or 
 they ar(^ 
 The pre- 
 
 ponderating- majority in Quebec was Roman Catholic — 
 and these of one denomination. The general system 
 tlierc, as one would expect from the fact of there beinp^ 
 an overwhelming majority of one denomination, and of 
 tliat ])arlicnlar dcnoniinalion, although called a public 
 school system, was denominational. Ihit there was also 
 the right to the Protestants to set up their schools, but 
 the ])opulation was so circumstanced that there were 
 Roman (!atholic minorities in certain [)laces and 
 Protestant nnnorities in others, and any number of 
 persons, however, ditlerin^ from th(^ faith of the 
 majority had the right to set up what were 
 called dissentient schools in their own locality, and 
 when they set them up they became pid»lic schools, 
 of their Order. They became public schools subject to 
 the public regulations, getting their share of the iniblic 
 grants, and in either case in each province the ratepayer 
 being bound to contribute to the school of his own 
 faith, was free from contributing to the schools of the 
 other faith. The Roman Catholic in Ontario had the 
 right to adopt the undenominational form, and become a 
 subscriber to the public schools. That was the state of 
 things there. 8o that ^ ou find in eflect the population 
 of these two ])rovincec, where alone there were pre- 
 Union rights, divided in practice with reference to the 
 schools of the country, organised by the law of the 
 country into two bodies — the Roman C;itholic denomina- 
 tion and th(^ aggregate of the Protestant sects or 
 denominaticms. 1 contend that '• Denominational 
 schools," when it appears on this iirst sub-section, there- 
 Ion^ has application to schools, as to the Roman 
 Catholics, of course, of their denomination. In Quebec 
 all the public schools were denominational, just as 
 much as in Ontario all the Ronuiu Catholic schools were 
 separate. In each case they were denominational. I 
 contend that the dissentient schools of (^)uel)ec where 
 they were Prot(>stant, Jind a fortiori whert^ they were 
 Roman Catholic (for as I have said there might be 
 Roman Catholic dissentient schools), were also denomi- 
 national schools within the meaning of this clause ; 
 and that, in short what has been called a monster vvus 
 
 .1' 
 
52 
 
 Manitoha Sciiooi- Cask, 1804. 
 
 i I 
 
 more or l(3ss set up by the Statnti'. There is u sort of 
 statutory aggregation for the purposes of this section of 
 the body of tiie Protestants into one body, which is called a 
 denomination, for the purpose of denominational schools. 
 I press most strongly on your Ijordships the ])r()p()siti<iii 
 that, looking at this Act l)y tlu^ light of the existing 
 facts of the school U'gislat ion, and the schools, and the 
 rights which all had, you find nothing but the aggrcga 
 tion of the Protestant sects, called lor the ])iirpose of 
 this legislation a denomination, and the Roman Catholic 
 another denomination. 
 
 Lord Shand. I understand you to siiy that this section 
 has really no operation now and is ineH'ectual in any 
 way with reference to Nova Scotia and New Brunswick. 
 
 Mr. Blake. Yes ; there were no rights or privileges 
 with respect to denominational schools given by law, 
 and it had no operation at all as to them, and that is a 
 very important circumstance when I come to deal with 
 sub-section 3. Sub-section 1 had operation only as to 
 Ontario and Quebec and the denominational schools were 
 such as I have described to your Lordships. Of course, 
 my Lords, there were negligabb^ and neglected quanti- 
 ties, there was the question of the Unitarians, the ques- 
 tion of the Jews, and the question of the Pagany, but 
 the great bulk of the population, those who counteti at 
 the polls, I suppose, were dealt with in this way by 
 these Statutes. Now that interpretation I have invited 
 your Lordships to give to denominational schools. 
 
 The Lord Chance/lor. I am not sure I see in contrast 
 to what you suggest your interpretation of it. To what 
 is the other interpretation applied ? 
 
 Mr. Blake. The suggestion which has been made, 
 which was strongly pressed upon the Board on the 
 former occasion, and which, as far as I can judge, is to 
 be relocated, is that the necessary effect of the success of 
 an Appeal under this section would be to render impos- 
 sible any system of public national education, because 
 it would involve rights to all the dilferent sects of Pro- 
 testants to set ujj separate schools in respect of which 
 they might complain. The answer that I make is that 
 these are rights of niinorities only ; and I find what the 
 
Manitoiu School Case, 1894. 
 
 53 
 
 I sort of 
 
 3ction of 
 
 ; called a 
 
 schools. 
 
 )p()Hilioii 
 
 cxisliiig 
 
 iiiul tlio 
 
 lo-o-rcga • 
 
 rpose of 
 
 Catholic 
 
 s section 
 1 in any 
 unswick. 
 )rivileges 
 1 by law, 
 
 that IS a 
 ileal with 
 ily as to 
 ouls were 
 )f course, 
 1 quanti- 
 rho ques- 
 >'any, but 
 )unteci at 
 
 way by 
 invited 
 
 I contrast 
 To what 
 
 en made, 
 I on the 
 dgc, is to 
 uccess of 
 3r inqjos- 
 , because 
 s of Pro- 
 of which 
 vc is that 
 what the 
 
 classes of minorities are — that these nro. not rights of 
 tlie uiajority ; and the majority is a Trotestant majority, 
 and is not to be divided into iive or six sects, each of 
 wliom may be rc^latively to the whole or to the I'rolostant 
 [>o|)uliition a minority. 
 
 '/7tc' Lord ('Iinuvollor. If the maioritv is an undenomi- 
 national majority, all that is to bo protected is the 
 denominational-school-desiring minority. 
 
 Mr. lilahc. Yi'S, the majority protects itself. 
 
 Tlie Lord ('/tancc//or. And if it is a denominational 
 majority, it is only the undcjnomhuitional minority who 
 need protcctu^n. 
 
 J/r. Jilake. TIh! privilege which is to hv protected is 
 a privilege of the I'rotestantor Koman Catholic minority 
 of the Queen's sul)jects. I have the exju'ession Protes- 
 tant minority 
 
 The Lord Chancellor. You aggregate them. 
 
 Mr. lilal'c. I aggregate them up here as non- denomi- 
 national ; 1 aggregate them down there as Protc'stants ; 
 and 1 hold that taking the Provhice of Manitoba where 
 the Protestants are in a majority, there is no right to be 
 protected by an Appeal, for the simple reason that they 
 can protect themselves. They an^ seven or eight to one, 
 and they can legislate as they please. The (piestion is, 
 whether the weaker sIkjuUI go to the wall to the extent 
 to which the strong could push them there. 
 
 That contention as to Denominational schools is 
 supported by the fact, I submit, that the separate schools 
 of Ontario are said in sub-secti(m 2 to be those of Roman 
 Catholics, wdiile the Dissentient schools of Quebec arc 
 said to be those of the Queen's Protestant and Roman 
 Catholic subjects. You find the Dcnomin;itional schools 
 of the Roman Catholics called separate schools in 
 Ontario, and you lind the Dissentient schools, which 
 would be usually Protestant in Quebec, called tlit^ schools 
 of the Protestants and the schools of the Catholics. 
 
 The Ontario Roman Catholic where ho is in a minority 
 is given a right to establish a separate school, and 
 the Quebec Protestant or Catholic, where he happens 
 to be in a minority, is given a right to establish a 
 Dissentient school — Dissentient meaning there simply 
 
 » ■ 
 
54 
 
 Manitoha School Cask, 1894. 
 
 that he diHseniod from thci public stihools, wliicli pul)lic 
 schools wore almost invariably, but iiol, invariably, 
 Roman (catholic schools. 
 
 Now, it is nocussary to clear away tlin sug_,:>stion 
 formerly advanccMJ I hut Denominational schools, as 
 expounded in tlu.'so Statutes, resemble at all schools such 
 as exist elsewhere under such names. 
 
 Lord Sh(tn<l. You said some time ag'o you would 
 mention what the privileo-os were which were the subject 
 of discussion. Have you done that '.' 
 Mr. Blake. No. 
 
 Lord Shand. I should understand all this more if you 
 could say in short what were the privileges you make 
 the subject of contention, if it is a new subject f do 
 not want you to do it, but perhaps you can tell me in 
 a word. 
 
 Mr. Blake. Our privileges are not to be mentioned in 
 a word, but f will read to your Jjordship a short 
 exposition or statement from the Judgment of this 
 Board. 
 
 Lord WaUon. What we decided last year as far as my 
 imderstanding went was this. I understood the Board 
 to determine that a right or priyilege with reference to 
 Denominational schools in Manitoba, which was asserted 
 to have existed at the period of the Union and to be 
 prejudicially aifected by the two Statutes, which were 
 said to be idtra vires had no existence in fact or law, 
 that there was no such pri\-ilege. 
 
 ^fr. Blake. I was not about to read that part of the 
 Judgment. I was, in answer to Lord Shand, about t,o 
 read that part of the Judgment which describes the state 
 of things created by the Post Uni(m Legislation. 
 Lord WatHon. This is subse(|uent to the Union. 
 Lord Shand. I do not want to take you out of the 
 order of your argument. 
 
 Mr. Blake. I am very glad to answer your Lordship's 
 ([uestion, which is entirely pertinent, but I think perhaps 
 1 can give a more distinct statement. 
 
 The Lord Chancellor. What you want to mention is 
 what are the rights and privileges. 
 
 Lord Shand. That is what I want to know. 
 
Manitoha School Cask, 1894. 
 
 55 
 
 Lord Watson. Wlial is \\w privilo^'o ? 
 
 The Lord Cliaucellor. The privil(.\i>;o you arc su[)porl,- 
 iug is tlio privik'ui' of liiiN'iuL!," liic rii^hi to tiling's crcatod 
 1)V the loi'iiu'r Act. 
 ■ .\h: lilnhc. Yes. 
 
 Lord S//iind. Is lli:it a j)ri\ il(-,L!,'(! tht>ri of iiaviug 
 schools of your (^wn. anil not l>ciii,i;' obliged to ])ay rates 
 for other schools. 
 
 J//'. Ilhdcc. Thai is one of the things and organisation 
 and so forth. 
 
 Lonl Shdud. I understand now. 
 
 J/r. BhdiC. I will give your Lordshi[) a rt^ferencc to 
 the history that th(( Judicial Comtnittee itsell gives of it. 
 At page !.').'). line io, is the Statement. 
 
 Lord S/iftnd. Then 1 will read that afterwards. 
 
 Jfr. lilaliC. I will also give your Ijordships a possibly 
 somewhat briefer Statement, which I. am able mainly — I 
 shall have a word or two to say u])on it — to adopt I'roni 
 the Respondents' case, l)age 4, line 2<S down to \\\\v 32 
 on the following page, which gives generally speaking a 
 tolerably corri'ct stalimicnt of the condition of things 
 created by tlu^ ])ost Union Schools and al'terwanls 
 changed by the latest l(\gislation. [^Sujn'd p. 15 '■^ In 
 1871,'' (f;r., to jK 17 ^^ (ind of the Adn'sor// Jioard.''] 
 
 Lord Shtind. I will read this afterwards. 
 
 Lord ]\",itson. There was no (piestion dealt with in the 
 Judgnu'nt as to the fact of post Union Acts except to 
 C(msider whether they prejudicially affected privileges 
 existing at the date ol' the Union. 
 
 Jfr. lilah'e. I (['litc agree. That is my argument. It 
 is r,;"* agunicnt which your Lordships luive kindly 
 relieved mi> from elaborating. At this moment I Avas 
 citing the indyment only as an authentic history of that 
 state of fact" which Jjord Shand wanted to be informed 
 upon. 
 
 Lord Shand. I have got what I wanted. 
 
 Lord ]\'ai.son. The iirst Act Wiis an Act in 1.S71 after 
 the Union, and it was said that that Act encroached 
 upon these privileges. 
 
 Jfr. Blake. No, my Lord. We should be only too 
 phrased to get that. 
 
 Lord Macnauf/hten. You would like to go back to that ? 
 
56 
 
 Manitoiu School Cask. 1804. 
 
 Mr. BJnh'. Yes. Wr did not ooiiiplain of it at any 
 time. We ahvavH approved ol" it, an<l would like it to l>u 
 there still. What I was saying was. and the only 
 additional observation I have to make upon tliis subject 
 of denominational schools is that it is not to be muh-r- 
 stood for a nuinu-nt that as meant hcn^ it ineludes 
 private schools or schools which arc other than State 
 schools. The dciu)minational schools are State schools. 
 They arc, in a sense, public schools. They are schools 
 supported pr.rtly by the ])ublicnu)ney. They are schools 
 subject to regulation, subject to inspection, subject to 
 orders, obliged to keep up to a standard, and sujjported by 
 rates and so forth. They are a machinery by which the 
 public and political organizati(m provides for the educa- 
 tion of the nuiss of the whole people according, as we 
 say, to the wislu'S of every part of the connuunity. That 
 is the sens(^ in which you iind (h'uominational schools 
 used in the connection in which wv Hud it in this Act. 
 Now I pass to sub-section 3, which is, from whatever 
 point of view you look at it, whether as in force or 
 whether as throwing light upon sub-s(»ction 2 of the 
 Manitoba Act, the most important of the sections, I find 
 there a statement of a system of separate or dissentient 
 schools as one of the conditions on which an Appeal 
 shall lie. " Where in any province a system of separate 
 or distientient schools exists by Law at the Union or is 
 thereafter established by the Legislature of the Province." 
 I ask your Lordships to observe that the meanings of these 
 two words "separate or d issentient ' ' are shewn by reference 
 to the Ontario and Quebec systems I have already briefly 
 brought before your Lordship's attention. But they are 
 also shown by the Statute, because if your Lordship 
 refers to sub-section 2 you find " separate " schools 
 described and " dissentient " schools described. The 
 separate schools are the schools of Roman Catholic sub- 
 jects in Upper Canada, and the dissentient schools are 
 the schools of the Queen's Prot(^stant and Roman 
 Catholic subjects in Quebec, and therefore ''a system of 
 separate or dissentient schools " is merely a way of re- 
 ferring to the svstems which were already in existence 
 in the provinces of Ontario and Quebec. The words 
 
Iv 
 
 Manitoba School Cask, 1894. 
 
 67 
 
 at any 
 
 it to bo 
 
 10 only 
 
 Hiibjcot 
 
 nndor- 
 
 ncliuloK 
 
 ,n State 
 
 schools. 
 
 schools 
 
 schools 
 bji'ct to 
 Di'ted by 
 hich tho 
 3 I'duca- 
 r, as wo 
 y. That 
 
 scluiols 
 his Act. 
 ^■hatover 
 force (n* 
 of the 
 s, I find 
 jsentient 
 L Appeal 
 separate 
 ion or is 
 ovince." 
 i of these 
 eference 
 y briefly 
 they are 
 
 ordship 
 
 schools 
 d. The 
 olic sub- 
 lools are 
 Roman 
 ystem of 
 ay of re- 
 
 xistence 
 le words 
 
 iav(^ a 
 
 tccl 
 
 mica I sense w 
 
 hich 
 
 ifl 
 
 1 IS sunicientiv moica 
 
 tb 
 
 ited b 
 
 the section. (Jfcoiirsc I do not contend — but on the con- 
 Iraiv 1 contend stronn-ly the other wav — that there is the 
 if<'st need that any system of separate or of dissen- 
 ticnt schools which maybe created, alter the union under 
 this Act or the Manitoba Act shall conform exact 1\' to either 
 of the systems here, because they dilfer. In Ontario tin; 
 system is dilferent from (Quebec, at least in its relation 
 to the schools of the majority, in Ontario you ha\'e a 
 system iu \yhich tin; sch(>ols ol' the majority are non- 
 denominational. In (.,)uebcc you have a system in which 
 the schools of tlu> majority are denoniiiiational. Hut in 
 
 eacli case y(ju liave a proxision 
 
 for tl 
 
 le se])arate instruc- 
 
 tion of the relie-ious minority. You may theri.'fore have 
 
 a system absolutely 
 
 Nat 
 
 lonai and (,'ommon 
 
 and 
 
 non- 
 
 denominational, in theory at any ratt^ for the majority, 
 as is the case in Ontario combiiUMl with separate' schools 
 for the minority, or you may have a denominational 
 system for tho majority, and se])arate scho(*ls for the 
 niiuority — one or the other — and in either case you 
 come within the meaning- of those words. It is not 
 necessary then that the majority system should be at all 
 denominational. It may be one or the other, and the 
 existence of tlie ri_ij,'hts of the minorities, though they 
 volve tlu^se se])arate dissentient schools is entirely 
 
 in 
 
 consistent wi 
 
 th tl 
 
 le existence ot a a'cneral anc 
 
 I all 
 
 em- 
 
 bracing system of education for the people. In either 
 
 case the minorities iiiive, and minorities similarly cir- 
 cuinstancetl elsewhere are intended to have protection 
 for their rights. 
 
 [Adjourned to to-inorroic at lidlf-j^xid 10 o'c/ock,] 
 
 SECOND DAY.— \rcdnes,laf/, Dccemhcr 12, 1804. 
 
 Mr. IJlaliG. My Lords, having reached those sections 
 of both the Acts which bear directly, and which are 
 really the sections in respect of which the rights set up 
 in this Appeal, both those we claim under the British 
 
58 
 
 Mamtoha School Cahk, 1894. 
 
 ii I 
 
 North America Act, uikI Ihosc wo cliiiiii iindur I ho 
 Maiiiloha Aot arc, aH wc all(\i;'c. prolccMcch it may, 
 "|)(M'ha|)s, ho coiivcnicTil if Itcl'ui'c (h'aliii^' I'lirthcr with 
 Kiib-ycction H of th(! Ih'itish North America Act and Hiib- 
 Hcctioii 2 ol' the Maiiitoha Act, I sh(»iil(l bri(?lly rd'cr to 
 tlic slate oi' I'aeis upon whicli we aUc^'c llieso sections do 
 a[)i)ly, and I would refer your Lordships to ihe summary 
 iH'iven l)y Mr. .Iiistico Foiiniier, at |)a,!j,'e L7() ol'tiie poni- 
 tioii wlucli l)y tile post Union Le^'ishition the (latholicH 
 occupied. It is very hrici'. " \W rclerrin^' to tlie k'gis- 
 lalion Irom the date of tiie Union till iJSUO. it is ovi<h'nt 
 that tile Catholics enjoyed the immnnily ol" l)ein*i; taxed 
 for otiior schools than theirown, the right ol' Mgani/ation, 
 the right of sell' government in this school matter, the 
 right of taxation of their own ])(M)ple, tlu^'ightof sharing 
 in Government grants for education, and many other 
 rights under the Statute of a most material kind. All these 
 rights were swept iway by the Acts of 18*J0, as well as 
 the properties the; had ac(|uired under these Acts, with 
 their tuxes and their share of the ])ubJIc grants for edu- 
 cation. Could the prejudice caused by {lie Acts of 18'JO 
 be greater than it lias been?" 1 may say that I think- 
 no one ()£ the Judges in the Court below has doubted 
 that the post Union rights have been alVectod, the doubt 
 has been whether, post Union rights bchig ati'ected, the 
 remedy ai)[)lied. Mr. -lust ice Taschereau was the only 
 Judge who (^xpress{>d a doubt, and that doubt, as far as 
 I can see, is based upon what I may be ])crmitted to call 
 a fundamental error in his juilgment, that this case had 
 been concluded by the decision of this lioard. 
 
 Tlien I feel it riglit to go a little more into detail upon 
 this subject so that the case may be presented to your 
 Lordships, and for that purpose 1 propose now to read 
 the sunnnary ol' the position which was given by the 
 Judgment on the f(U'mcr case. That is at page 155. 
 
 Lord Slanxl. What does he mean by "riglits of taxa- 
 tion" in that passage '? That would be voluntary, would 
 it not. 
 
 Mr. BUih-e. No, voluntary is subscription. 
 
 Lord Watson, ^^'e will come to the Acts by and bye. 
 
 Mr. liJake. Yes, that is a brief sunnnary, and is open 
 to the objections to which a brief summary is open, but I 
 
Manitoba School C^ahk, 1894. 
 
 (lor I ho 
 it may, 
 lor with 
 111(1 sub- 
 
 rclcr to 
 'lions do 
 minuary 
 1 10 porii- 
 lalholics 
 10 logis- 
 1 cvi(U'nt 
 iti; taxod 
 iii/alioii, 
 iter, tho 
 
 sliaring 
 ly other 
 All these 
 i well as 
 L'ts, with 
 lor edu- 
 
 of 18D0 
 ; I think 
 doubted 
 lie doubt 
 cted, the 
 tho only 
 as i'ar as 
 hI to call 
 jase had 
 
 !ini n'oinjLJi,' to ('idari;'o it. This is tlu^ statcMucMit which 
 \-oin" LnrdshipH IJoard make at [)a,ii,'e 1')'), line IH : — 
 
 " Manitoba having been cfMistitutcd a I'rovincc of the Doininioii 
 in I ''^70, the I'rovincial Legislature lost no lime in dealing with the 
 question of education. In 1S71 a 1 av was passed whieli established 
 a system of denoniinalional eilucatioii in the common schools as they 
 welt; then called." 
 
 The Lord ('//ancc'//or. lUd'ore the Union was there no 
 educational provision ol' any sort? 
 
 Mr. r>h(ke. No, that was what your jjordships de- 
 (•i(le(l. 'I'liere was no leo'islature, and there was an 
 absohitiily voluntary system by which the adherents of 
 the dilVerent churches had, no doubt, under the guidance 
 Ip of their spiritual i)ast()i's, done what they pleased, and 
 
 done what they could. That was all, and your Jjord- 
 shi;)S held that that "all" had not been iid'ringed upnr 
 hy this. That being [he condition, the ground was 
 
 ' aiisolutely clear and tree for what was done by [)ost Union 
 
 legislation. In 1870 the [jower to legislate was given 
 hy the creation of tlu! I'rovince. Your Lordship's 
 judgnunit continues : — 
 
 In 1871 a law was passed which established a system of di;noinina- 
 tional education in the common schools, as tliey were then called. 
 A B(xu-d of Education was formed, which was to be divided into two 
 sections, Protestant and Roman Catholic. F^ach section was to have 
 under its control and management the discipline of tlie schools of the 
 
 1 section. I'nder the Manitoba Act the province had been divideil 
 
 into 24 electoral divisions, for the purpose of electing mend^ers to 
 Serve in the Legislative Assemblj'. By the Act of 1871 each electora' 
 division was constituted a school district, in the first instance 
 Twelve electoral divisions, " comprising mainly a Protestant popu 
 lation," were to be considered Protestant school districts ; twelve 
 "comprising mainly a Roman Catholic population," were to be con- 
 sidered Roman Catholic school districts. Without the special 
 sanction of the secti(jn there was not to be more than one school in 
 any school district. The male inhabitants of each school district, 
 assembled at an annual meeting, were to decide in what manner 
 they should raise their contributions towards the sui)port of the 
 school, in addition to what was derived from public funds. It 
 is perhaps not out of place to observe that one of the 
 modes prescribed was '' assessment on the property of the 
 school district," which must have involved in some cases at 
 any rate, an assessment on Roman Catholics for the support of 
 a Protestant school, and an assessment on Protestants for the 
 support of a Roman Catholic school. In the event of an assessment 
 there was no provision for exemption, except in the case of the 
 
00 
 
 Manitoha Sciiooj. (!ask, 18U4. 
 
 father or guardian of a school cliild, a Protestant in a Roman 
 Catliolic school district, or a Roman Catliolic in a Protestant school 
 district — who mi^ht escape by sending tiie chilil to the school of the 
 nearest district of the other section and contributing to it an amount 
 eijuai to what he would have paid if he had belonged to that district. 
 The laws relating to education were modified from time to time, but 
 the system of demoninationa' education \vas maintained in full 
 vigour until iHoo. An Act passed in i 'IS i, following an Act of 1S75, 
 provided among other things that the eslablishmeiil of a school 
 district of one denomination should not prevent the establishment 
 of a school district of the other denomination in the same place, 
 and that a Protestant and a Roman Catholic district might include 
 the same territory in whole or in part. From the year 1H76 until 
 1890 enactmt "ts were in force declaring that in no case should a 
 Protestant rate yer be obliged to pay for a Roman Catholic school, 
 or a Roman Catholic ratepayer for a Protestant school. 
 I piuiHo llicrc ht'oauso that is th(^ ond of your LonlKlii[)s' 
 (IcHcriplioii of the HVHtoin, I ])aiiHo thoro jiiHt to niako a 
 i^viicral obsoi'vatioii. without onlar^iii*^,' ii{)()n the dcH- 
 cription further. Your liordyliipK will ku(! that IIkto 
 llio licoinlaturu was dealing with a stale ol' i'a<;t,s vv'hicli 
 very soon chaiio-cd as t(; tho gcooraphical diHtrilmfioii, 
 and lluMUiioiiiit of the ])Opiilation orig'inally there was 
 a very small population almost ('([ual in nundxu's, 
 and it so happened that the population was ahuost 
 
 1; 
 
 in 1)loc'ks of one religion or the otluu", not abso- 
 luti^ly exclusively so, but so for i»raftieal ptirposes. 
 Therefore they attem])te(] to achieve tho object of a 
 complete system of edncation for all the people by 
 reference to those Geographicrd con<litions by tlividing 
 the wlioh^ Province, which was not then so large as it 
 lias since become, but which was very large no doubt, 
 into twenty-four scliool districts, corresponding to tho 
 electoral divisions which had themselves bet^n constituted 
 with reference to tlu; Geogra])hical distribution of the 
 population into Protestant and (Jatholic, and by providing 
 Protestant schools for one district and Roman Catholic; 
 schools for iinother district. Put as time passed it 
 became necessary, ami it was possible without in the 
 slightest degri^e interfering with the principle of de- 
 nominational education, indeed it became necessury in 
 order to carry it out in its force and vigour as applied to 
 the altered conditions of the province to make various 
 changes. There arose an inequality in the total popu- 
 
Manitoija School ('ahk, 18^4. 
 
 01 
 
 Iiitioii whicli olili;i,'('(l alterations in tlic iiimilMTH of the 
 IJoard. TliiTc arose (lillerenees in tlie «iistril)iitiou of 
 tli(» population wliich ol)li^('(l an arran^'enient to he made 
 ulieri'by there nii^^lit \nt a ('atholie school district and a 
 I'rotcHtant school district not al)soliitely identical, for I 
 helieve the laet was there was none sileli. There nii^'ht 
 he. JioweNcr, ami there were many distriels whieli were 
 overlappin,!;'. 
 
 All these siiltstitiitions and modilications were dcsin'iicd 
 to render the h!,i;'islation apt in the altered conditions to 
 carr) out an eH'octivo systeiu of oilncation vot preserving', 
 as your Lordshi[)S see the denominational system in its 
 t'idl viji'onr ; and of all this, therc^ has ncN'cr hecni any 
 complaint on the part of tlu^ minority. They have never 
 ohjected to these changes, and tlun' do not now ask 
 reliel' From anv ol" tlu.' chan^'cs which werii made from 
 IS7() to 1S!)()/ 
 Now what transpired in l8iK) ? I reefer to the Jud^'- 
 
 mcnt : — 
 '" III iHqo the policy of the past iiinctt'cn years \v;'s reversed." 
 I call your Jiordshi[)s' attention to that again — 
 ''The denominational system ot public education \va^. entirely 
 swept away." 
 
 That is your Lordships' delinition of the change made 
 by the Acts of which we complain. 
 
 Two Acts in relation to education were passt;d. The first (^}, Vic, 
 c. 37) established a Department of Education and a board consisting 
 of seven members known as the " Advisory Board." Four members 
 of the board were to be appointed by the Department of Kilucation, 
 two were to be elected by the public and high school teachers, and 
 the seventh member was to be appointed by the I'niversity Council. 
 One of the powers of the Advisory Board was to prescribe the forms 
 of religious exercises to be used in the schools. The Public Schools 
 Act, iMqo (53 Vic, c. 38), enacted that all Protestant and Roman 
 Catholic school districts should be subject to the provisions of the 
 Act, and that all public schools should be free schools. The pro- 
 visions of the Act with regard to religious exercises are as follows: — 
 " b. Religious exercises in the public schools shall be conducted 
 according to the regulations of the Advisory Board. The time for 
 such religious exercises shall be just before the closing hour in the 
 afternoon. In case the parent or guardian of any pupil notifies the 
 teacher that he does not wish such pupil to attend such religious 
 exercises, then such pupil shall be dismissed before such religious 
 exercises take place. 7. Religious exercises shall be held in a public 
 school entirely at the option of the school trustees for the district, 
 and, upon receiving written authority from the trustees, it shall be 
 the duty cf the teachers to hold such religious exercises. 8. The 
 
62 
 
 Manitoua School (-ask, 1804. 
 
 ' t 
 
 ii 
 
 public schools shall be entirely non-sectarian, and no religious 
 exercises shall be allowed therein except as above provided." 
 So thai ovory scliool Avas to !>(> a public school, all 
 (/atholic as well as i'rolcstaiit school districts Avcrc to ho 
 tiinuMl into public school districts, and cxci'v i)ublic 
 school was to ho entirely non-sectai'ian. (Jranteil ihat a 
 system of denondnatio'ial schools had becTi in ibi'ccs and 
 was in lull vioour I'or nineteen ^'ears. Take the clianoe 
 which is now described bv your l.ordshii)S. And is it 
 ])ossible to say that riohts or ])rivile_o'es ol' the Ivonian 
 Catlndic minority liavo not been interlered with or [U'e- 
 jiidiced by that chanii'e ? 
 
 7 /it' Lord Cliayicellor. The (piestion seems to me to bo 
 tliis — Jt' you are right in saying- that the abolition ol' a 
 systtnu of denominational education which was created 
 ])y ])Ost-UiHon legislation is within the 2nd Section of 
 the Manitoba Act and the ord Subsection of the other, 
 if it aj)])lies, then you say there is a case For the juris- 
 dictiou ol' the Uovernor-CJeneral, and that is all we have 
 to decide. 
 
 Mr. Jiliihe. Tluit is all that your l.ordshij)s have to 
 decide. A\'hat remedy \\o shall ]tro])ose to iip])ly is 
 (|uite a ditl'cirent thing. 1 have alrt^ady shown that it is 
 t'ntirely consistent with the view that certain rights may 
 be cri'iited that there shouUl be an elasticity in the way 
 oi' moulding the system. \ want I'ven now to suo-o-est 
 to vour Lordships what it will be my duty to endeavour 
 to impress u])on you more I'ully — that there is no barrier 
 whatexer to any change in a system ol' diMionunational 
 educationexce])t in solar as it alVecfstlu' a'.Miiiirt'd rights ol' 
 ndnorities, that we ha\c no right to complain il'adenonu- 
 national system of education aU'ectino- the majority has 
 been altogether altered, has become non-denominational ; 
 it does not all'ect tlu? rights which we have ac((uired. 
 Under this Clause it is the right of the Protestant or the 
 Konum ('atholic minority which is preserved. The rights 
 of the majority art' lel't to \)v altended to by themselves 
 and the legislation as to them to be moidded as they 
 wish to mouhl it. 1 may add that we have 
 exam[)les ol' what tlu^ Legislatui'e nu-ant in Ontario 
 and in C^uebec, in owv the general system being non- 
 denominational in the other, the general system being 
 
IVIanitoha Sriiooi, Cask, 1894. 
 
 63 
 
 (loiioiiiiiiatioiial, )»iit oach boin^ji,' oonsisk'iil Avilli the 
 riti'lits which were intended to ])v protected in tlie 
 ininority jib to their schools^. The stateiueiit then "oes 
 on to say — 
 
 '' Tlie Act tlii'ii proviiks fur tlio toniuitioii, alteration aiul union 
 of school districts lor the election of school trustees ami for levying" 
 a laie on the taxable pid|)erty in each school di^lricl tor school 
 purposes. Ill cities the Municipal Council is requned to levy and 
 collect u]ion the taxable propertv within the municipality such sums 
 as the school trustees may require for school ]iurposes. A portion 
 of the Icffislative grant for educational purposes is allotted to public 
 schools, but it is provided that any school not conducted according 
 to all the provisions of the Act, or any Act in force for the time 
 being, or the regulations of the Department of Kducation or the 
 Advisory Board shall not be deemed a public school within the 
 meaning of the law, and shall not participate in the legislative 
 grant." 
 
 So that the h'o-ishitive u'rant was al»stracted ironi all that 
 
 (Ik 
 
 1 not 
 
 come within tiio nieanino- oi a |)ul)lie scliool 
 
 Section 1-41 provi(k's that no teacher sl.all use or ])ern»it 
 to he used as text, books any books except siieh as are 
 authorized l)y the Advisory Board, and that no portion 
 of the le<;'islative L>rant shall be paid to any school in 
 which nnauthori/etl books an; nsed. Your Jjordshi[) 
 will tind the contrast ])resently : — 
 
 Then there arc two sections (17.S and 179) which call for a passing 
 notice, because, owing apparently to some misapprehension, tliey arc 
 spoken of in one of the judgments under appeal as if their ctTect 
 was to confiscate Roman Catholic property. They apply to cases 
 where the same territory was covered by a I'rotestant school ilistrict 
 and by a Roman Catholic school district. In such a case Roman 
 Catholics were really placed in a better position than Protestants. 
 Certain exemptions were to be made in their ^^■"vour if the assets of 
 tlieir district exceeded its liabilities, or if the liabilities of the 
 Protestant school district exceedeil its as.^els. Put no corresponding 
 exemptions were to be nuule in the case of Protestants. Such being 
 the main jirovisions of the Public Schools Act, tS(io, their Lordships 
 have to determine whether that Act |)rejuiliciallv atlects any right 
 or privilege with respect to denominational schools which any class 
 of persons had by law or practice in the province at the union. 
 
 You swet!p out all this hislorical stateuient as irrele\ant. 
 and at a later passage point out that your Lordship's 
 doubt (which was a polite way of saying' that the 
 
HHHH 
 
 64 
 
 Manitoba Hcbool Case, 1894. 
 
 Suju'umc Court was wrong in doin^' it) tlu; ])orniisHibility 
 of referring, as even throwing a light on the subject to 
 intermediate h'gislation. 
 
 *' They doubt," say your Lordships, "whether it is permissible to 
 refer to the course of legislation between 1H71 and i<S')0 as a means 
 of throwing light on the previous practice or on the construction of 
 the saving clause in the Manitoba Act." 
 
 I desires to refer at this moment, while your Jiordships' 
 observations are fresh in your memory (line 40 on page 
 156 dealing with the case of identical districts) to 
 the facts on that subject. It is true that there does 
 appear to have been misa])prehension in the minds of 
 some of the Judges of the [Supreme Court, but it is also 
 true that while special provision was made for those 
 particular hy])othetical cases of Roman Catholic and 
 IVotestant school districts being identical, I am informed 
 such was not at all the casi'. and that such was not the 
 general case was admitted on the last occasion by Mr. 
 McCartliy. The general case was the case of overlap- 
 ping to which I have referred. That was the gc^neral 
 case as your Lordship wouKl naturally expect. In that 
 general case the confiscation which I refer to was 
 accomplished substantially by the provisions of the Act, 
 because the Roman Catholic school distriet was turned 
 into a public school district. The school coidd no longer 
 bo used and eontr()lle<l by the okl school trustees. The old 
 school trustees were made for tiie ncmce, aiul until acertain 
 short period school trustees under the new Act and the 
 only way in which the scliool could be conducted was 
 under the regulations of the new Hoard. 80 that the 
 ])roperty and rights ac(|uired by the taxation which they 
 had submitted themselves to under the law were availed 
 of, and the school was turned into a ])ublic non-Sectarian 
 school. In that way thi're was — I no not want to use 
 the invidious word " coutiscation " — but there was 
 ap])r()])riation of the old for the purpose of the new 
 schools, ditlcring so completely as they do. 
 
 The Lord (Jhanrel/or. You mean that where in a 
 Ron)an (Catholic school district they had assessed them- 
 selves, as they had power to do, from which assessment 
 a Protestant could exempt himself, so that it would be 
 
Manitoba School Case, 1894. 
 
 M 
 
 exclusivoly, excopt so far as the Protestanl-s ploasod, 
 inonoy raised by assistance of the Roman Catholics, 
 the school built by money so raised has now become a 
 free school. 
 
 Mr. B/aJi'c. Yes, under this Act every school has so 
 becouK^ and wo cannot use I ho school otherwise. Wo 
 jiave no riii'hl to use it for denominational purposes, and 
 carry it on under the old regulations which are repealed, 
 but the power to carry it on there even as a voluntary 
 enterprise has ^ono. A new set of trustees are to be 
 elected. Now, what happened ? There are, or at any 
 rate they may be still, I believe there an^ but at any 
 rate there may be, school districts (Exclusively or almost 
 exclusively Catholic. As I have said thev can no Ioniser 
 use those Luildings, or levy rat(js upon tfieir own |)eople 
 lor tlu? school in those or in any other buildings. They 
 are thrown back on voluntary and unorganized effort, 
 while the property which they had acipiired under the 
 old Acts is dedicated, if that hv, a proper word to a])ply, 
 to public school ])urposes instead of to the [)urposi's for 
 which they creaunl it. The Act calls upon them to 
 elect trustees from time to time. Of course, if the 
 Roman Catholics are not exclusively in possession, a 
 very small minority of Protestants may hold a meeting 
 and elect trustees. If the district is exclusively Catholic, 
 they nuiy not (T believe it is the case, but that doi's not 
 ap})ear), tluiy may not choose to elect trustees. 
 
 The Lord (^hancellor. Of course, if they elected 
 trustees, the trustees would be only in conformity with 
 the Act. 
 
 Mr. BInl-e. Yes, that is the reason they would not go 
 on and elect them. There is a provision which covers 
 even that case of inaction, which would not simply 
 refuse them the right to retain a school, or for organised 
 eifect and assessment to carry on their school, but would 
 deju'ive them of their right to the building. What 
 happens ? The Municipality, which has a large area 
 containing it nuiy bt* a nuijority of Protestants, but, at 
 iiny rate, in all probability a large admixture of 
 Protestants, has, after a certain interval of neglect on 
 the part of the district to elect trustees, the [)ovver itself 
 of appohiting trustees who are to carry on t he school. 
 
Manitoba School Case, 1894. 
 
 The Lord ChmcelJor. That socms to nio of very minor 
 importance, because of course if the school can only be 
 used, whoever be the trustees, in this way it does not 
 much matter what trustees are appointed. 
 
 Mr. Blale I agree. The purpose of the school for 
 the future is a purpose absolutely different from the 
 purpose for which it was created under the taxation of 
 the Roman Catholics. Of course I need not say that the 
 question of property, although Jin important consideration, 
 is relatively a minor question. The (juestion of the 
 immunity from taxation for the public schools, and the 
 right to Government aid and to taxation for and 
 organisation of their own schools, all those are beneiits 
 and great advantages obtained by the Legislation of 
 which we are now deprived. 
 
 Lord ]\^atfion. I suppose a non-sectarian school would 
 not be entirely ap])roved by Roman Catholics, even if 
 the majority of the trustees were Roman Catholics. 
 They would still be under the Advisory J)oard. 
 
 J/r. Ji/ake. The view of the Roniiui Catholics upon 
 this subject is stated very clearly in the Judgment of 
 your Lordships, and was there stated correctly, not as 
 rhe view of individual Roman Catholics, not as the view 
 even of individual members of the heirarchy, but as the 
 view of the Church, and that was that the (nlucation 
 must be a religious education, an education in which 
 religion is interfused throughout. That is the purpose. 
 It is a lesser evil if you are going to establish the law 
 offeree, disregarding rights of conscience. 
 
 Lord M'atsoii. I suppose that is what is nu'ant and 
 understood bv non-sectarian teachino-, undenominational 
 
 teacl 
 
 ]mg. 
 
 Tl 
 
 le statutory word here is " non-seclariau. 
 
 iMr. JUalxC. There are a number of statutory wt)rds 
 There is " denominational " as well. I do not find 
 
 much difficult V in lindinii" what " denominational 
 
 means 
 
 generally. As 1 have shown to your Lordships, I think 
 1 have proved that there is a special meaning in this 
 Statute. Take the word "sectarian." The difficulty I 
 have is in ffnding the exact shade or pale colour of that 
 religion. 
 
 Jjord Watson. It is sometimes used as a word of re- 
 proach. 
 
Manitoba School Cask, 1894. 
 
 m 
 
 nniior 
 ily bo 
 
 OS not 
 
 ol for 
 n tlio 
 ion of 
 lat the 
 ration, 
 of the 
 id the 
 r and 
 (moiits 
 ion of 
 
 would 
 >von if 
 tholics. 
 
 ■< upon 
 lent of 
 not as 
 
 as the 
 neat ion 
 
 which 
 nrpose. 
 
 ic hiw 
 
 tl 
 
 nit and 
 ational 
 iriaii." 
 words 
 hud 
 
 Mi: Blake. Yes, but not with us, where all the sects 
 are equal. 
 
 Lord ]VatsoH. " Denominational " does not convey the 
 same imputation. 
 
 Mr. Blake. No. 
 
 Lord Shand. How is that as to rcli^'ious exercises 
 ])ractically worked out. Were there diU'creiit reliu,M«)ns 
 exercises ill diil'erent districts? Do these re,jj,-u lat ions 
 apply to all schools ? 
 
 Mr. Blake. I think your Lordship will hiid, when I 
 bring your Lordships to the more detailed information, 
 that the (piestion whether religious exercises should be 
 carried on in any particular school was a (piestion to be 
 determined by the authorities of that school, but if the 
 religious exercises were to be carried on they are stereo- 
 typed ; the character of the religious exercises is given 
 
 Lord Jfacnaufjhten. Do the Advisory Doard interfere 
 with the teaching of the particular denominations ? 
 
 Mr. Jilake. There is iif) deuoiiiiiiational teacJiiiii''. 
 
 Lord MacnangJtten. The religious exercises ? 
 
 Mr. Blake. The religious exercises are reading cer- 
 tain selected and prescribed passages of Scripture and 
 a form of prayer. 1 think that is all. 
 
 Lord Shand. There was no avoidance of teaching the 
 doctrine of a particular body. 
 
 ^[r. Blake. It was an exercise — it was not a teaching. 
 
 Lord Watson. Teaching religion from which all 
 denominational ideas were eliminated ? 
 
 Mr. Blake. I wish we could find it, because then we 
 should find the common religion. 
 
 Jjord Sliand. I sujipose that was the effort ? 
 
 Mr. Blake. There was no teaching at all. T am ii'oiiiir 
 to come to it. What thev call religious exercises were 
 
 Lord Maoiai'j/den. It was part of the public education. 
 There was no time set apart for providing teaching. 
 
 Mr. Blake. I think not. 
 
 Mr. llaldane. Section (i defines it " after hours." 
 
 Mr. Blake. There may be something of that kind. 
 But it is the public exercises that I was speaking of. I 
 
68 
 
 Manitoha School Cask, 1894. 
 
 thonnjht my friond intorpoKod to Hay tli(^ro wiih a time 
 for toacliiii^. Jt iw the last tiling- ol' tlu! day, so that the 
 boy or girl may go if they (h) not want it, and ho that it 
 may b(3 n^coivcMl, at any rato, at ;i period vvlicn thu infant 
 mind is full(>st ol' other tilings alter a day's seliooling. 
 All that happens at the most is. as I understand it. the 
 reading ol' a seleeled passage and a ju'inted prayer. That 
 happens only when the local trustees direct that it shall 
 happen. 
 
 I was saying that nnder Section 89 of the Act of 1890, 
 the last of the series, the municipal rates levied over the 
 district, that is on the whole of the municipal district 
 which may and docs comprise several school districts, 
 comprise a grant to the extent of 20 dollars a month per 
 teacher. That is a tax over the whole area, and conse- 
 (piently where there is no jndjlic school used by the 
 ratepayers in any particular area, hecanse the Roman 
 Catholics cannot use their own school for their own ])nr- 
 ])oses and do not organize themselves nnder the Public 
 School Act, thev are taxed bv a common rale over the 
 whole area of the municij)ality for the ])urpose of paying 
 to the pnblic schools in the district the snp[)lementary 
 contribntion. lUit they do not get any ])ortion of it 
 themselves, because they do not er(^ct a ])nhlic school or 
 continne their own school as a public school, in conse- 
 quence of their conscientious objections to teaching from 
 which religion is elinunated. 
 
 Now I refer also to the other statement to which I re- 
 ferred your Lordships yesterday upon the altered condi- 
 tion, namely, that given in the Hesj)onilent'scase, to which 
 I said, with an exception or two which 1 wish to maki', 1 
 gave a general adhesion. I refer to it as establishing 
 from another source authentic and important from the 
 point of view of this Ap])eal. the existence ol' privileges 
 and the abrogation of those privileges. I get it from 
 page 4, line 2S of the Respondent's case. \1Su2m1 2>- 1^ 
 tojj. 17.\ 
 
 "In 1871, however, the year after the admission of Manitoba to 
 the Union, a law was passed which established throughout the 
 Province a system of denominational education in the common 
 schools as they were then called. A Roard of Education was formed 
 
Manitoba School Cask, 1894. 
 
 60 
 
 wliicli was to be divided into two sections — Protestant and Roman 
 Catliolic. Each section was to have under its control and manage- 
 ment the discipHne of the schools of the section. Each of the 24 
 <'Ic(toral divisions into which the Province had by the Manitoba Act 
 been divided, was constituted a school distridt in the first instance, 
 and there was to be a school in each district ; 12 electoral divisions, 
 coni])iising mainly a Protestant population, were to be considered 
 Protestant school districts ; 12, comprising mainly a Homan Catholic 
 population, were to be considered Roman Catholic school districts." 
 
 This is a siimiuary of your ijordships' Juclgim'nt ; 
 porliiipa it is iiiorc important that 1 should advert to the 
 point which I was just rcacliirig. 
 
 '• These schools, none of which could jjroperly be called separate 
 or dissentient schools." 
 
 I (h) not thiidv it is material under the Manitoba 
 Act at all, nor do I think it is material in this case, 
 as the law stood in the end, but I suj)p()se it is 
 founded upon the proposition that the whole pro- 
 vince beini"' bv the iirst Act divided into Protestant 
 and Ivoman Catholic school districts, n(m(3 could bo 
 called separate and dissentient schools, each one is a 
 separate school. At any rate, what is important to me 
 is th(j Roman C-atholics. Vou may have some dithculty 
 in treatino- the I'rotestant schools as separate, because 
 you may say "What sect does it bidong tc) ? " IJut 
 when you lind a school as to which authority is given to 
 conduct it under the control of religious teaching, which 
 applies exclusively to one religious body, that for which 
 1 appear, and which is the minority, can you call it other 
 than a separate school for the denomination. Jt is a 
 school having religious teaching, the religious teaching 
 of a single denomination, the Roman Catholic denomi- 
 nation, authorised, erected and created by the State in 
 order that such teaching may take })laco. 
 
 Lord \V<itso)i. A denomination may inchule a great 
 many sects. 
 
 J^*. Blake. Here I am not dealing with the ([ucstion 
 of denomination, but with the criticism of the Respon- 
 dent's case on the phrase " separate or dissentient 
 schools." 
 
fO 
 
 Manitoha Bcfiool Cask, 1804. 
 
 Lord Shawl. Tliut plirawe m (luotod. F Hiipposo il ia 
 taken IVoiii one ol' tlio Stalulcs ? 
 
 Mr. I>l(ilx-e. Yes ; \ piMisuino tho ol)joc't is to allog'o tliat 
 ilio lliinl Kiil)-Hoct 1^)11 of tho IJritisli North Aniorica Aot, 
 would not apply to this case, because a system ofseparale 
 or dissentient schools was not created, [ say a system ol' 
 separate schools was creatc'd as lar as Roman ('atholies 
 are concerned, which is all I have to deal with. \ do 
 not care if tin > wcv' lo system created as to anybody 
 else. I do n( '••'• wl'o.lier the system as to others 
 be absolutely uViut i.cniinational or strictly denomina- 
 tional. I am <(iMjcn.'e(' (mly with the system of 
 separate schools for thai minority which I represent 
 here, and which claims a continuance of the privile^-e 
 created. Rut I point out that the subsoipient legisla- 
 tion altered the condition and removed (!ven that 
 criticism as to the Manitoba Act. The momtnit that 
 instead of having- the whole country cut into 2-4 school 
 districts, of which 12 were crystallised into Protestant 
 and 12 into Roman Catholic districts, differing from, 
 although frauK^l in substance upon the distribution of 
 the population the moment that you substituted for that 
 the right to have school districts overlapping one 
 another, identical with one another, Protestant or 
 Roman Catholic, you established a system of separate 
 and dissentient schools. In the very nature of things 
 the school the minority established is a denominational 
 school. The minority has a right to establish out of the 
 whole or part of the area the school which is to be tho 
 school of the minority, conducted according to its views 
 of Roman Catholic education. 
 
 The Lord Chancellor. The word " separate " applied 
 before the Act only to schools in Ontario, 
 
 Mr. BJahe. Yes. 
 
 The Lord Chancellor. The separate schools were a 
 system of Ronuin Catholic schools as distinguished from 
 the general non-denominational system of the whole 
 Province. 
 
 Mr. Blake. Precisely. The separate school was the 
 technical term applied to the Roman Catholic schools of 
 the Province, and was grafted upon a non-denomina- 
 tional school system. 
 
Mamtoha School Cask, 1894. 
 
 71 
 
 TJic fjonl Chance//or. Sub-section 3 deals with soparato 
 s'jliools existing' at tlio tinu! of the Union. That of 
 (!()iirse I'dbrs to tiio soparatt; school in Ontario and tho 
 dissentient schools in Quebec. When it si)eai<s of "Or 
 as lluireal'ter establisiie(l by the legislature of tho 
 Province," that is soinetlung new, and in order to ascer- 
 tain what conies within " sei)arate or dissentient," you 
 must look at what the nature of " separ.ate and dissen- 
 tient" was at tho time of tlu' passing of the Act. 
 
 Mr. Ill ((he. You are not tied down to the exact forms 
 eud)odied in legislation, but you must find the essence. 
 1 say the essence may be and is proveil to be capable of 
 being engrafted on a genc^ral system of non-denonuna- 
 tional education as in Ontario, or on a system in whi'"'(i 
 the general education was denominatioiud as in Quebe.-, 
 because^ the majority by an overwhelming prepondera. "«. 
 weri' of one denouunation, and iherefore could hr i( 
 so; iu)n-denomination in Ontario, mainly though, n ' 
 exclusively, because the e(|iuilly preponderant Prot' -^tant 
 uKijority were of dillerent sects. 
 
 Lord Watson. Your first proposition is a legal i^no on 
 the construction of sub-section 2 of the Act. T was 
 looking at page )\ of the case. The provisions of that 
 sub-section are '' An Appeal shall lie to the Governor- 
 General in Council from any Act or decisi(m of tho 
 ]jegislature of the Province, or any provincial authority 
 eifocting any right or j)rivilege of the Protestant or 
 Ivoman Catholic minoritv of the Queen's subjects in. 
 relation to education." Von read that as if it ran — lam 
 putting a gloss upon it for the purpose of illustrating 
 the contention I nnderstand you to make — meaning 
 thereby any right or [)rivilege which they may enjoy 
 under previous provincial legislation. I do not say that 
 is exhaustive, but ycm say it is so. 
 
 Mr. JUake. If your Jjordship/ says " including," I am 
 satisHed. [ do not know of anything else. 1 am bound 
 to argU(Mhat it does include aright or privik'ge enjoyed 
 by legislation, and I know oi" no right or [)rivilege which 
 thev could i>'et otherwise than bv leL!,islation. 
 
 Lord Watson. You say that within the moaning of this 
 clause those are privileges which you enjoyed at tho 
 date of the Act of 18U0. 
 
 I < 
 
 .1 
 
72 
 
 Manitoha ScHooh Cask, 1894. 
 
 }fr. lilnkr. Y(!H, lliat in flio vvliolo argiimonl. 
 
 Thi, Lord (!/i(inrf//(>i'. 'Vhv- dilliciilly is lliis. On llial 
 ooTisI ruction, inasiniioli aH at tlic timo of the Union, 
 there was no Hyst<'ni) Jind, thcn^fon'. no ri<i,'lit or ])rivil('^(! 
 onjoyful by law. iliis Hystoni towhicli von take ('X(!0|)tion, 
 f!onl(l liave been cstablislicd after tlu* Union witlioni 
 objection, if there iiad been no interin(>diate lou^inhition. 
 
 Jfr. /)/((/,■('. ^'es, I have l)een a little puzzled how to 
 adch'eHS your Lordships in the ar^'nuHMit. I l)ogan l)y 
 an attempt wiiich I pcu'ceive waH, ]H^rha{)s, not a iiaj)pv 
 one, to deal with the construction of tiiis Act hy[)oth(jti- 
 cally and without reference to our concrijte case. On 
 reflection, I think Lord Shand was ([uite correct^ in 
 invitin<i; mo to state what the claimed rights were. I 
 am gomg to argue all that which your Ijordship has 
 stated. 
 
 Lord Shnnd. I felt a diHieulty in following you 
 without getting a foundation lor it. 
 
 Mr. Jilakc. t admit I may have made an error, but I 
 only venture to ask that now I be not drawn into a con- 
 tinuance of that error in tlie course of my attempt to find 
 the facts. 
 
 Lord Watson. It does not follow that it is not the 
 meaning of the Legislature, because the Legislaticm may 
 be peculiar. It would seem to follow that if the Pro- 
 vincial Legislature had sim])ly begun by establishing 
 non-sectarian education at lirst, it could have done so 
 without check or hindrance. 
 
 Jifr. lilalx'c. Yes ; but will your Lordship allow me not 
 to jump till I con.e to the fence. 
 
 Jjord Watson. It does not follow that after the privileges 
 were established, tliey should not have thought it right 
 to impose some safeguard upon subsequent legislation. 
 
 7'he Lord Chancellor. I do not say the s(;cond sub- 
 section of the Manitoba Act may not be enough, but it 
 may make it of importanc(> to consider whether the third 
 sub-section of 93 applies. That third sub-section api)lies 
 where a system of separate or dissentient schools is 
 thereafter established, appeal shall lie. 
 
 Mr. Blal-e. I have already stated that I consider it of 
 very great constMpunice from my point of view, my 
 learned friends will consider it, perhaps, of equal 
 
Manitoha Sriiooi, ('ASK, 1804. 
 
 n 
 
 Sul)st'('ti<)ii .') is applic'ihlo, wlictlier you arc to troal U3 
 as boiiiff as a wliolo iiiapi)lit'aI)lo bocaiiso as a wliole it 
 
 coiis('"nu'n('(' from tlicir point <tl' vit'W to i)iV(^H(i<j^ato llio 
 iii(';miii,ii,' of Siihscction ."5 wlicthcr it directly ^"ovorns tlio 
 case or not. I do not think that wo can construe Suh- 
 Hoction 2 of 22 vvitiiout a carclul consi(h'ration and ox- 
 position ol' the iMoanin;L!;' of vSul)H(.'ction 'A (ifil.'J. 
 
 '/'//(' fjtnl ('liniK'cllor. It is impossible to avoid con- 
 sidei'ina' l)otii ; you cannot axoid consi(K'rin.u' iiow far 
 .') is appli 
 a whole 
 is varie(i, or wliothor you arc to tn^at tlu; whole as 
 apj)lical)I(( (except in so far as then! is an inconsisten(!y. 
 
 Mr. lihihc. \es. 'I'hen, a'l.'ain, I hold, as mv h^arned 
 friends hold, thou,i!;'h from ditlerent po.its of view, that, 
 even if your J^ordshi]) should conu^ to the conclusion 
 that U3 is not applicabU'. yet still, as the bar.;' {ind foun- 
 dation, it is essential to find out whiit is the nie.vning- of, 
 and what was done by. Section i)3. 1 do not shrink 
 from that discussion, and I am about to enter on it when 
 I have com})h'ted this statement of the condition of 
 
 lungs. 
 
 Lord Shawl. There is that striking diircrcnce tho.t the 
 words •' a system" are introduced into the one section 
 an<l do not occin- in tiie other. 
 
 J/r. lilidxc. Yes, there are several other dilVoren(;eB. 
 J cannot take them up in a fragmentary manner. 
 
 Lord Shand. As I nnderstanfl, the result is that you 
 cannot object to the legislation. The legislation may 
 alfect the right, and does aifect the right, upon a con- 
 struction of tii(3 Statute. All you say is that, if it does 
 affect a right or a privilegi>, then you ought to be 
 allowed to ap])eal to the Governor-General so as to get 
 redress by some subse(iuent h^gislation. 
 
 Mr. Jilakc. We cannot object \o it as ultra vires. Ex 
 conccs.HiM it is intra viren. 
 
 Lord Sliand. Your object is to get the Governor- 
 General by some subs(M[uent legislation to remedy it. 
 
 Mr. lilahe. \\y a stiggesticm of subsequent legislation, 
 for he is not a legislative body — subse(iiient legislation 
 which may or may not be aci^uiesced in by a legislative 
 body. 
 
 Jjord Wat.son. The provisions of the tvo Acts may 
 
74 
 
 Manituua ScirooL ('ask, 181)4. 
 
 ; f 
 
 1 
 
 il 
 
 llirow Komc li^'lit on oach oilier. Do ihoHo proviHions of 
 iho MiiiiitoltH Act nol HiiporHinlc tluM)tlior ? 
 
 Mr. lihthc. Tliiil is tli(! ur^'i'.nciil on llio oilier side — 
 (hat iIk'so provisions are llu* comjilete j)rovisions. 
 
 Loiul W'dtsDii. No'loiiht there is Hi/melliiii^' to Ik^ lonnd 
 in tlu^ Manitoba Act which is not in LIm; IJrilish North 
 Anieriea Act. 
 
 Mr. liltiko. I am intending' when f near it to endeavour 
 to Klat(^ to your Jiordshijts very Inlly vvhai is to hu found 
 juid what is not to be I'ound, and what tlu! ditlereiieeH 
 are. I know that I have to ;irapple with that subjcut. 
 
 Ijoril Sli(in<l. The majority '>!" the Judges are against 
 you on that point arc they? Do tln^y hol<l that the 
 Manitoba Act su[)ersedeH the other. 
 
 Mr. lihiLc. Ves, the majority were against me on all 
 (piestions excej)! the one li'om arguing which your 
 liOi'(lHhi[)S havt^ relieved me for the moment ; tlu^y are 
 three to two against me. That one question oeing 
 auHwcred in the negative was in my favour, the otherH 
 were adverao. 
 
 Now I wish to give vonr JjordshipH a reference to the 
 Beries of Statutes \\hich were dealt with. 
 
 Lord Shawl. Is the purpose of this to show that they 
 ' were Hecunul ])rivileg(>8 ? 
 
 JAr. Blake. Yes. 1 am continuing this portion of the 
 argument and concluding it with wliat I am now about 
 to state. I am endeavouring to enabh^ your Lordships 
 to master what the situation was and how it has been 
 changed. TIu' tirst Act was tlie Manitoba Act of 1871, 
 34 Victoria, chapter 12. Under that the Government 
 was to appoint the members of the Board of Education, 
 of whom one half shoukl be Protestants and one half 
 Catholics. The 7th section gives to the JJoard power to 
 makc^ regulations for the general organisation of tlie 
 public schools, to select books, maps, &c., other than 
 those relating to religion and morals, English l)ooks 
 for Englisii schools and French for French schools, to 
 alter and subilivide school districts ; each section of the 
 Board to have under its control and management the 
 disci[)line of the schools of the section. The section 
 regulates the licensing of teachers, it prescribes books 
 relating to religion and morals, and so on. 
 
ManitoUa Srifoci, Cask. 1894. 
 
 n 
 
 'Tlir fjoni (Jhinn-f;//o): How in .'issciit ^'ivcii to the 
 rrovinciiil Act ? liy tlui Lioiitiiiiaiit-Uovornor ? 
 
 ,1//'. /i/ii/rc. Always. 
 
 T/tc Lonl (J/f(inn'//(H'. I« tlicrc; uny control over tlicin 
 l»v tlu' < 5(>v('rn()i'-( Icncnil. 
 
 Mr. /{/(ih\ Vcs, there is a power ol" (lisallowance. I 
 was alxtiil to l)rini; that l)etor(! your LonlHliips. Certain 
 divisions to he Catiiohi' dislriets the j)eo[)le to elect the 
 trustees. lli(> truHtecH to (lelenuinti how to raise moneys 
 and to assess the |)roj)erty in the <lislriet. the teachers to 
 he licensed. I'roiestanI or Catholic to send his chdd to 
 the nearest school ol' his railh.and it" he conlrihule to he 
 Tree from payment in the district ol' his residence. There 
 was no ])rovision I'or the estiihlishment of a school ilis- 
 triel of another denomination than that prescrihed in the 
 same district, llul in iSJo hy the .'>Sili Vic. Caj). 21 
 (and that, 1 am sorry to say, is not in the Hook of 
 Statutes) it was enacl(!d that the estahlishmeni of a 
 school district of one denomination shall not prevent the 
 estahlislnnent ol' a school district of the other ni the same 
 ])lace. There you get " Roman (Jalholic " and " Trotes- 
 lanl " described as denominations obviously, and you 
 get a ju'ovision I'or ovcrlappiuL;' or identical school dis- 
 tricts. The Ac! ol' 1877 is not in the book, 40th Victoria 
 (>ap. 12. That j)rovides by ihe 10th section that in no 
 cas(^ a Protestant ratcpayiu' shall In; obliged to pay for a 
 ('atholic school, or a CiUholic ratepayer I'or a Protestant 
 school. He was not obliged to [)ay elsewhere ; no one 
 was obliged to pay except for the school of his faith. 
 Then comes 1881, 44 Victoria, which is in the Hook ol' 
 Statutes, chapter 4. It repeals the former Statutes and 
 makes the same [)rovision for the appointment ol" a 
 Poard of Education, except that I think it was in a dif- 
 fident majority, viewing the preponderance which had 
 come about the 'rotestant population. The joint board 
 was made to con 'st of 21, 12 and *J, but the })owers of 
 ihatjoiiH bcjard as a whole were reduced, the fornu-r 
 power of selecting books, maps and so forth and altering 
 districts being given to the sections. 
 
 77(te I^oi'd Chaticcllor. It is section 5, sub-section C. 
 
 Mr. Blake. I was endeavouring to refer to the powers 
 of the board as a whole. Certain powers were taken 
 
r>AJi4iSMWin tfrnfmrnmiim^ 
 
 n 
 
 Manitoha School Ca8e, 1894. 
 
 M 
 
 away and given to the sections, and as your Lordship 
 sees, section 5 provides that the board sliall resolve 
 ilself into sections, and ro each section isg'ivcn complete 
 control over its own school with this exception, that in 
 the cas(^ of books having' reference to religion and morals 
 the selection o^ the Catholic section of tlu^ board shall 
 be snbject to the ajiproval of the competent religions 
 authority. 
 
 Lord Sliand. What is that ? 
 
 Afr. Blake. I suppose the Hierarchy. T do not know 
 whether that goes to St. Peter's in the end. 
 
 Lord Shand. It is their own denominational authority. 
 I thought it might be some general authority. 
 
 Mr. JilaJiC. Surely it was intensifying the denomina- 
 tional characteristics, if possible. Inhere is no generally 
 competent authority there or anywhere else that I know 
 of. Once again we are reaching after aconnnon religion. 
 Each section is to have control and management of its 
 schools, to examine, giade, and license teachers, to select 
 all books and maps with the above provision and to 
 appoint inspectors. I refer also to sections 78 and 70. 
 Then under section 12 the school districts were regu- 
 hited by the Municipal Councils. It was provided that 
 schools of both kinds may occu])y the same territory. 
 
 Ljord Sliand. That had bc>en provided for. 
 
 J\lr. Jilal'c. Yes. This is a repeal and recast of the 
 ? law. It gives you the law as it stood at the time of the 
 Act of 1890. 
 
 Lord Shand. Then it 'y not of nmch value looking 
 back to anything if that is a repeal and recasting. It 
 gives the history of it, but if this is rei)ealed and recast 
 you get in ciubstance in this Act what you say were the 
 jirivileges. 
 
 Mr. Blake. This is the condition of things as it stood 
 in 1890, and it contained our existing privileges. For 
 the pur])ose of showing how we stood, the Act of 1881 
 is apt. Under that Act, section 13, live lieads of families 
 with 15 children may be a school district so that although 
 the distric'.s were to be arranged by the Municipal 
 C{/Uncils any five heads of families with fifteen children 
 were entitled to have a school. The school trustees of 
 
MANinmA SciKHti, Cask, 1894. 
 
 77 
 
 each district wi'i'o to 1)0 i^loctod ; the Munici{)aIitit'S wciv 
 to raise l)y taxes the amount required l>y each district. 
 The ratepayers wore to pay to tlie schools ol' their own 
 d(^noniination, and in no ease otherwise. Tlien ther«3 is 
 \hv. provision for llie cases of corporations and el" [)roj)((rly 
 held jointly, a ])rovision as to how their rates siiould ho 
 divided. That is, 28 to :52, 18S4, ^-ives the leu-islalive 
 ^•rant to be divided between the sections in jjidportion 
 to the iHunber of children. Those are the niosl material 
 provisicms, and althoug'h there wen^ sligiit amendments 
 oven of this Act, yet there was no subtantial amendment 
 nor anything" as 1 understand that inti'rfered with any of 
 the (|uesti(ms your Jj()rdshi})s have to deal with until the 
 Act ot" 18'J() came and swept all away and substituted 
 the system now in von-ue. Well, now, by that Act, as [ 
 have stated the Homan Catholic school ])ro})erty was 
 j)ractically conliseated, not by changing' the ownership 
 ol" the property in one sense, because it was in the hands 
 of school trustees api)ointed under the old law, but by 
 changing the character of the trustt>es in wiiom it was to 
 be for the future, by ])rovi(ling for trusti'es who were to 
 aduunistera non-sectarian or non-denominational system 
 being elected, and for the property biung so controlh'd. 
 Thus, by so altering the charactiu' of the education, the 
 Roman Catholics could no longer mak(> use of the 
 property, and in some cases, where the poi)ulation was 
 mi.xed of course, the complexion of the ccmstitution of 
 the Uoards was changed. Wherever you had a district 
 in which Uomaii Catholics had their separate school, 
 and in which under the new regulations a public school 
 was to 1)0 managed, the irustees ol" that school being 
 chosen by the whole of the district, unght be Protestant 
 in whole or in part. The -ird section of the Act ol" l.S'JO 
 j)rovided, in fact, that all sc!u)ol districts agreemenis 
 and assessments should be subjt'ct to the proxisions of 
 the Act. l>y Section 4 the oM Iruslcc was to continue 
 as if his tta-m had bet'U created by virlui' of an election 
 under the Act, and by Secticms and 7 certain linuttnl 
 reli<!,'ious exercises were to be permitted. I>y Sc ctiou 8, 
 pid)lic schools were to be entiridy nou-SL'ctarian, and no 
 religious exercises allowed, except as above provided. 
 
■-j^ - .t aujui tm't i oetifomnmii 
 
 78 
 
 Manitoba School Case, 1894, 
 
 ! 
 
 By Section 108 " Any Bchool not conductud ii '.'cording to 
 all the provisions of the Act, sluUl not ])articipjito in the 
 Grant." (4) " No teacher shall nse or permit to be 
 used as text books any books in a model or public school, 
 except such as are authorised by the Advisory lioard, 
 and no portion of the legislative grant shall be {)aid to 
 any school in wliich unauthorised books arc; used." 
 
 Now I wish to observe this also that it luis been sug- 
 gested on a former occasion — although the argunumt 
 has not in my mind as direct an a])]»lication as it had 
 npcm that occasion — it has been suggested that whereas 
 the right of the Uonum Catholics fornuM'ly was to be free 
 from assessment to lienonunalional schools, their right 
 nowistobe free from assessment to non-sectarian schools, 
 and that is a different sort of business. Of course the 
 right to bi' frec^ from taxation for the schools other than 
 schools of their own faith, is a very im])ortaut ])art of 
 the whole, one of the most important ])arts of the whoh;. 
 1 submit it would be al)surd to say tha! the difhcully 
 was renu^ved bv nuikini'" the schools to which the 
 Catholics are to subscribe what is called non-denomina- 
 tional t)r non-sectarian. What was their prisilege? 
 Their privilege was that the ])ublic taxes should l)e 
 devoted to the education of the children of the country 
 in ju'oportion to the population ol the different faiths, and 
 therefore (which is all they are interested in) that they, 
 the minority, should get the pro])ortion due to the pro- 
 portionate number of children of their I'aith that they 
 should raise such local taxes as they required I'or carrying- 
 out tlu'ir ])art of tluit system educating the children of 
 that religious minority, and that the rest, the nuijority, 
 should raise such as they recpiired for carrying out the 
 education of llu'lr children. And to alleges that because 
 under the new svstem — the fundamental objection of the 
 Roman Catholics Ix-inii,- aLiainst a svstem in which 
 denominational and dogmatic religious teaching is not 
 admitteil and is not interi'use(l with the whole of 
 the education — because lor that is substituted a 
 non-sectarian system of education which they object to. 
 therefore no right or privil(>ge of theirs secured to them 
 under the law in respect of immunity Irom taxation is 
 
Manitoiu Bchool Cahe, 1894. 
 
 79 
 
 obviated, is to my mind notliin*;' loss than futile and 
 absurd. Tlu^y are to bo exposed under this view to 
 
 double taxation whieli they had not before 
 
 Lord l^hand. Can you call it double taxation? They 
 are exposed to taxation, but il" th(>y wish it they must 
 ]U"ovide another sehool. You cannot call the second a 
 taxation, can you? It' you are not content with tin* 
 schools that are now established, you have voluntarily 
 
 to] 
 
 )rovi( 
 
 U' otl 
 
 tlou 
 
 bl( 
 
 lers. 
 
 axatu)n 
 
 I 
 
 was ( 
 
 hall 
 
 euffniir vour ('xi)ression 
 
 th 
 
 le second is not taxation 
 
 but 
 
 voluntary payment. 
 
 Mr. Blnh-e. Very well, my Lord. 
 
 The Lord Chancellor. Jt is clear under the British 
 North America Act that the privil(><>'e of liavinc; a 
 
 sej)arate system, ani 
 
 1 not beiiiii' brought within an 
 
 undenominational system, is one of the ri^'hts 
 (rivileii'es hitcnded to be i)reservt'd. 
 
 aiK 
 
 V 
 
 It 
 
 .1 
 
 Mr. Jlhdi'c. That was the Ontario system. It existed. 
 
 th 
 
 was tnen^ 
 
 ou 
 
 had 
 
 (Icnonnnationiu 
 
 Th 
 
 \ public sc 
 >f tl 
 
 hool 
 
 svstcin non- 
 
 ic lutilitv ol this aru'umcMt is to be 
 
 n 
 
 shown Irom the facts ])rov('(l in the case presented o 
 this Appeal, because^ all the material which was bc^lbre 
 your Lordships in the other case was laid by the Order 
 of the Governor in Council bel'ore the Supreme (.'Oiirt. 
 The undisjmted fict is that the ])ractical operation and 
 workiuii' under the new law of so-called non-seetaria 
 
 n 
 
 ])uhlic schools IS the sanu' as was the practical operation 
 and working- under the old law of the so-called Protestant 
 schools. So that the thiuir obliu'ation to contribute to 
 
 AN 
 
 Inch 
 
 1 we escai)e(l m j)raetice was the same thing' winch 
 is now erected. It may be that there was a ])ower to 
 have additional religious educati<»n in the old Proieslant 
 schools, but the particular proofs to which I shall refer 
 your Jjordships, and which }'our Lordships at'cepted as 
 stating- the facts, in triiih they could not bo contradicted, 
 indicate that under the new and under the old the nih; 
 
 was the same 
 
 In 
 
 a word 
 
 tl 
 
 le condition (m thmu'S 
 
 foredoomed a common system of education conducted 
 for the benelit of the various Protestant denominations 
 to something next door to secularity. It was impi)ssible 
 in ])ractice to providt' for fervent, energetic, strictly 
 
 ■■■V 
 
'i t 
 
 f. f 
 
 1 
 
 ,1 
 
 i 
 
 ■■i 
 
 rj " 
 
 L-L 
 
 80 
 
 Manitoha School Cask, 1894. 
 
 oiitlinod (logiiuitic teaching in a school vvliicli should 
 concoiitrato and enlist the loyalty and sympathy and 
 su])[)ort oi' Anglicans, o£ Presbyterians, of Methodists, 
 and some of the other denominations which were there. 
 So lliat the conditions of the (!ase show that i'or .all 
 ])ra('ti('al [jurposcs your statutory I'rotostant denomina- 
 tion is, and must he, a d(Miomination which can oidv 
 stand togelhc!" as a denomination hccausc it gives up 
 
 I'or the oc(!asion the distinctive h'atiires ol denomma- 
 tional teaching, and, in fact, gives up everything but the 
 
 ■lous exercises to which I have referred. That was 
 the condition of things before. That is the condition of 
 things now. And that under the condition of things 
 there should be any doubt that we have? in 1881 
 important rights and privileges of a nn'nority in relation 
 to education secureil j^y Statute, which rii^'hts and 
 
 pr 
 
 ivileues have been swe 
 
 pt 
 
 awav, ol 
 
 w 
 
 hicl 
 
 I w(i have 
 
 bt^en divested, does seem to me to be a futile argument. 
 
 r ])as-i on now to thti construction of the two sections 
 that art most important. The two sections which deal 
 with this subject as apjilied to Manitoba either together 
 or exclusively. As to secticm 22 I am now arguing the 
 case on th.c iheory that I have to rely on section 22 
 having already referred to your Lordshi|)s tlu^ <>'dy ob- 
 servations I can nud<e, thosi^ contained in the judgment 
 of Mr. Justice Fonrnier as to the ap{)li(;ability in that 
 sense of sub-section 8 of the IJritish North America Act. 
 I have said that I entirely cimcedethe absolute necessity 
 of gra])})ling Avith the meaning of this sub-si'ction both 
 from my point of view and from the point of view of 
 my learned Iriends. 
 
 Lortl Sliand. If you get it under either section it 
 serves yonr ])urpose, does it not ? 
 
 Mr. BlaJk'c. Ct'rtainly. 
 
 Jj<mJ SJkukI. ^\'hich do yon sav is the wider section ? 
 
 Mr. lUake. I think the Manitoba section is the witiei 
 secti(m. That is the view I intend to press n])on your 
 Jjordships. If 1 were to commence to construe sub- 
 section 2 ol 22, I shouUl be met at once by such obser- 
 \ itions as these: " You must look back and see what is 
 il>e effect of the other Act. Vou must construe it by 
 
Manitoba School Case, 1894. 
 
 81 
 
 the lio'ht of the other Ant," and so forth. Therefore, 
 inconvenient in one sense as the course is, and quite 
 ready as I am to adopt any intimation from your Lord- 
 ships as to your preference in the argument, I have 
 thought it bettor 
 
 Lord Hhand. It had not occurred to mo that you could 
 naiiow the meaning of Section 2 of the Act ol' 1870 by 
 the terms of Section 3 of the previous Act of 1807, if it 
 is wider in its terms. 
 
 Lord Watson. It seems to me to be a good deal wider 
 in its terms. Sub-section 2 of the Manitoba Act refers 
 to any Act or decision of the Legislature of the province 
 or of any provincial authority, sub-Section 3 of the 
 British Kortli America Act does not deal with any Act 
 or decision of the Legislature. 
 
 The Lord ChanceUor. It removes the doubt, but it is 
 by no means certain that "provincial authority " does not 
 include the Legislature. 
 
 Lord Watson. It uses the word " Legislature." Your 
 Advisory Board is a provincial authority. 
 
 Mr. Blake. If your Lordships think it more con- 
 venient LO pass away from the construction of sub- 
 Section 3. 
 
 Lord Watson. I am not sure, if within the same c'ause, 
 the word " Legislature " is used as having enat ted a 
 Statute that it is not intended to include the same 
 Legislature ; it may mean simply that the Governor- 
 General is tu have control over these provincial autho- 
 rities, which are constituted for the purpose of carrying 
 out the Act. I do not wish to give a final intimation - 
 opinion, but I do say that the two clauses are not 
 similar terms. 
 
 Mr. BInkc. Doubtless. 
 
 Lord Watm7i. And that sub-Section 2 of the Manituba 
 Act will obviously serve your purpose better thai the 
 other. 
 
 Mr. BlaJce. " How happy could I be with either." 
 Your Lordship, before arriving at a conclusion upon that 
 restricted meaning of sub-Section 3 would, I think, enter 
 into a number of considerations, including, for example, 
 sub-Section 4, which to my mind adds a good deal of 
 
82 
 
 Manitoba School Case, 1894. 
 
 
 '' f 
 1 
 
 colour to sub-Section 2 of Soction 22. It ia alto<i^ether 
 in my favour to give a narrow construction to tliis one. 
 
 Lo7'd Shand. What do you say is the moaning of the 
 words " Provincial Authority " ? 
 
 ]\[r. Blahc. If your Lordsliip asked lue, I shouhl havo 
 said that you could not throw any !i<.;ht on tlie construc- 
 tion of an Act of the Imperial Parliament passed in 
 1867 by the lanf2;uag'o used in an A(!t oC the Canadian 
 Parliament in 1870. I should say, going back, therefore, 
 unenlightened as to the intentions of the Imperial 
 Parliament in 1867 by the expressions of tlu^ Act of 
 Parliament of Canada of 1870, and dealing with this 
 Section with the light thrown upon it by Section 4, that 
 any provincial authority did include the highest pro- 
 vincial autl.ority — that provincial authority which moulds 
 all others. 
 
 Lord Shand Namely ? 
 
 i/r. Blnlx'c. Tlie Legislature. T should havo thought 
 that the word ' Act " was a word ap})ro{)riate to the 
 conclusions and hndings of the Legislature. I should 
 have said that the circnn'3tance that a provincial law is 
 by the 4th Section indicated as being perhaps calletl for 
 in order to carry out an Appeal, a^.l that idtimately a 
 remedial law of the Parliament of Canada is indicated as 
 the proper remedy for the executicm of an Appeal, indi- 
 cates something much stronger than the mere dealing 
 with provincial autliurities, officers, Administrative 
 Boards and so ^'ortli, under the control of and susce})tible 
 of being handled by the Provincial Legislature itself. 
 There are ntnnerous obstTvations which I should have 
 made, and my intention had been to enter into an en- 
 quiry on that subject, bui ])erhaps your Lordships would 
 prefer that I should 
 
 The Lord Chancellor. Take your own course. Yw 
 Blake. 
 
 Mr. Blal'e. £ will state as liriefly as I can the line 
 of observation in part, I daresay, favouring my learned 
 friend's views, which I would make with reference to 
 sub-section 3. I am endeavouring to curtail the elabora- 
 tion of that as much as possible. I have said that I 
 suggest that the Appeal is to be from an Act which is 
 
Manitoba School Cahe, 1894. 
 
 ilie appr()priat(> word Cor an Act of Legislation an Act 
 oi" any provincial authority, and that the Legislature is 
 included, it being the chief! provincial authority. I 
 have said that the provision in sub-section 4 of the 
 remedy " in case a requisite provincial liiw is not 
 made " indicates that something which the Pro- 
 vincial Jjt^gislaliire had done could bo complained of. 
 To |)lace the A(!ts of the Legislature outside ol' the Appeal 
 would he to give the Aj)peal only Irom decisions of 
 oIHcials created by and acting under tin? authority of 
 Acts oi'the Provincial Legislature. Such decisions would 
 b(^ either warranted or unwarranted by the law under 
 which they were created. If they were warranted there 
 would be no ground for an Appeal whatever. If they 
 were unwarranted the Local L(^gislature putting upon its 
 Statute IJook, and kei'ping upon its Statute Book, tho 
 law, and the local Courts administering the law, would, 
 of course, enforce the observaTice of their own law by 
 their own officers, and Ihorefore there would be no need 
 for nor any us(^ of an Appeal. Put if you are *r: .issunie 
 that this Ap[)eal is solely hi order to prevtmt the d^i.iger of 
 local officers of the Province disobeying local laws of the 
 Province, and to force local officers to (djcy local laws, 
 to vvliat use ? Because if the Legislature thinks that 
 the !oca) officers in their neglect are acting in the best 
 interests of the country they will alter the law so as to 
 make it conform to the action of the local officers, and as 
 there is on the hypothesis no Appeal from legislation 
 you reach absolute futility. Unless you got an Appeal 
 from that wliich controls all laws, whicli governs all 
 biws, which nuiy make all that is wrong right and all 
 that is right wrong, you get no effective Appeal what- 
 ever. 
 
 The Lonl Chancellor. I i seems clear thai it contem- 
 plates a remedy for a slatt^ oi' things done in and 
 according to the law existing in the Province. It must 
 contemplate that apparently, because if it did not, 
 new legislation would not be re([uired. It contemplates 
 certainly that the only effectual remedy may be new 
 legislation. 
 
 Lord Shand. Has there been any difficulty in the 
 
84 
 
 Manitoba School Cask, 1894. 
 
 decision in the Coiu't bolow as to the moaning of the 
 words '• any Provincial authority ? " 
 
 Mr. Blake. Oh, yos. When thoy come to deal with 
 the British North America Act, thoy find as one of their 
 grounds, tliat " Provincial authority " in tho Pritish 
 America Act does not inchidc it. Tho Chief Justice 
 rests his decision very largely on tho light which he 
 says is thrown by the words used there. 
 
 Lord S/umd. Take the later Act, tho words are, " or 
 any Act or decision of the Legislature of the Province, 
 or of any Provinc: il authority." Have the Judges in 
 tho majority given any narrow meaning to that expres- 
 sion ? 
 
 Mr. Blake. No, it is hnpossiblo. There is no such 
 attempt. The Legislature of the Province is the l^cgis- 
 lature of the Province. They have concluded by a 
 majority that the l^ritish North America Act, although 
 it is doubtful — tho Lord Chief Justice says he is very 
 doubtful ; he finds very great difficulty in arriving at 
 that conclusion — yet that the British North America Act 
 does not embrace an appc;d against the law. 
 
 The Lord Chancellor. Certainly it 7nay embrace it. 
 If it is intended to embrace it the language is not 
 happy. 
 
 Mr. Blake. That is an observation which is not in- 
 frequi'i'tly made with reference to Acts of Parliament. 
 
 IVie Lord Chancellor. It certainly is not conclusive 
 against its having been intended. 
 
 3[r. Blake. No. 
 
 Lord Watson. The two Acts arc not the products of 
 the same Legislatures. 
 
 Mr. Blake. No. 
 
 Lord Watson. Therefore we cannot argue from one 
 Act to another. 
 
 3fr. Blake. I thought not ; at any rate from the later 
 to the earlier. 
 
 Lord Watson. If it had been a liritish Act, of course, 
 it would have been said by one side that the second 
 Act was in order to make things plain. It would have 
 been said against that that it shewed tliat they recog- 
 nised the distinction. 
 
Manitoha School Case, 1894. 
 
 85 
 
 the 
 
 Act 
 
 I 
 
 Mr. Blake. Yos, I sliall have when I read the Judg- 
 ment ol" the Chief JuBiico to recur to some extent to that. 
 
 Lord Watson. Tlie Legislature, the body which is 
 supreme, when I'rovincial logiBhition ib spoken of, is tho 
 Provincial Authority ? 
 
 Mr. Blake. I bIiouUI liave said it was the Provincial 
 authority. 
 
 Lord Watson. I cUj not think they speak of this iu 
 that way. 
 
 Mr. Blake. In the second Act it says, "The Provincial 
 Legislature or any Provincial authority," and that is 
 one argument usimI against me. They say it is clear 
 that there was an interpretation by the Canadian Parlia- 
 ment, that high ;ind competent authority, upon the 
 phrasing oL' Lnperial Jjegislation, showing that "Pro- 
 vincial Jjegislature " was not included in " Provincial 
 authority," because they speak of the one or the other. 
 
 The Lord Chancellor. \i is very difficult indeed to 
 rely upon such an indication as that If anybody had 
 said it is not clear that the " Provincial authority " 
 includes " the Legislature," it might be said, "Oh, well, 
 we will make it clear." 
 
 Mr. Blake. That is tho arguu;ent I intended to use. 
 
 I go < now to a point which is absolutely common 
 to both iiL , and theretbre has adde/i importance. It is 
 absolutely common to both the sub-sections. The 
 arguments seem to me to be just the same. Grant mo 
 for argument's sake that the Appeal in the British North 
 America Act extends to Acts of the Ijcgislature : I. want 
 to know to what kind of Acts it extends, whether to Acts 
 ultra vires or to Acts intra vires? This question arises 
 here, because the argument on the one side is that in tho 
 result an Appeal is only an additional sauelion for 
 sub-section 1, and that it )ias not to do with any contra- 
 vention or rather change made hy the iiegislature in 
 Acts which were intra vires. 
 
 Now there are various arguments which to my mind 
 make a cumulative case absolutely conclusive aji^ainst 
 that interpretation. " •* 
 
 ^ 
 
Manitoha School Cask, 1894 
 
 I / 
 
 Lord Shand. If an Act iw ultra ro'csj yon do nol ro([uiro 
 ail a])p('iil to llio Govuriior. 
 
 Mr. JlJnke. \ wjih about to Hay so. 
 
 The Lord (■lianallor. Moiooviu", you cannot r(M|uiro 
 anodicr Act, bocaiibc there would bu no end to it in that 
 case. 
 
 J/r. lllah'c. That is a eonslniction a,u,'ainst vvhicli I 
 have to conlcnd. I tliink it is al)Soiiitc^iy clear the otiicr 
 way, but I say so with i;Teal diiruhnice, having" rcg'ard 
 to the opinions expri'ssed. 
 
 Lord Watson. Suit-section 1 in both are imperative, 
 " Nothing in any sucli hiw shall jtrcjudicially allect." 
 
 The Lord Chancellor. Is it disjtuted that under that 
 first sub-section you could obtain a decision that the Act 
 was ultra m'res in that respect? 
 
 Mr. Jilake. Oli no, my Ijonh Wo have obtained a 
 decision that it was idtra vires below, and your Jjordships 
 reversed it here. 
 
 Jjord Wat.son. If we had held it to be ultra vires the 
 result would have been tiiat the law woukl have been 
 inoperative. 
 
 Mr. Blake. Surely. 
 
 Lord Watson. The Act, sub-Section 1 does not appear 
 to me to raise any case of the discretion of the Governor- 
 General. 
 
 Mr. Blake. Your Lordships, I am happy to observe, 
 are anticipating all that I was about to say. Looking 
 at the enabling clause and sub-Section 1, the enabling 
 clause gives power to enact subject to certain provisions. 
 So far as an attempted law may contravene those pro- 
 visions it is tdtra vires and is absolutely void. It cannot 
 be used against anyone. The Couris will hold it waste 
 paper, just as they set aside the bye-law in Barrett's caSe 
 below on the erroneous idea that the law had contravened 
 the provisions, but on the accurate idea that if it had 
 contravened the provisions it would have been void. It 
 was not argued before your Lordships that the law 
 would not have been void if it had contravened the pro- 
 visions. The question was whether a case of contraven- 
 
Manii'oua School Cask, 1894. 
 
 87 
 
 tion lias an'son. If llio cnac whicli Iho Court l»olo\v 
 iisHiimcd luu! iiriHoii, ilio com ra volition being bIiowii, 
 thcri! would h;ivo luicii un end of the law. 
 
 Lord S//(im/. 'I'hcrc iiuiHt he a marked dilVereiice with 
 relereiice to anythiiii;' interrerinn; with what was tlio 
 Htate of matters at the Union, and anytiiiii^' inlerl'ering 
 with th(^ state of matters which had been ehan^'cd hy 
 the Leo-islatiire art(ir the Union. In the one ease it 
 would be bad in point of law and n/fni n'rcs, in th(! 
 other yon can destroy the ri_^'ht, but that destruction 
 of the ri<i,ht is liable to aiJpeal. 
 
 Mr Blake. That is precisely tlu; line whi(;h I am 
 about to adopt. 
 
 Lord lUatswi. ft may bo (jualilied or abro/^'ated. 
 
 J/r. Blake. The case does not aris(! if there are 
 ])rivileges which luive not, been broUeii. I siiLC/^'est that 
 the provision ol' the onablino- (jlause with sub-section 
 1, is absolutely comj)l(!te in itself. It reipiires in its 
 nature no supplement of anv kind — no a[)peal to a poli- 
 tical executive Tribunal astlie l*rivy Council ofC'anada — 
 no appeal to a legislative Tribunal as the Parliament of 
 Canada, is wanted. Nothing exists for the oxecutivo 
 tribunal or for the legislative tribunal to operate upon. 
 No question of oxpctlioncy, no quest i(m of discretion 
 arises. The course of law is all, and it is enough. That 
 is the whole theory. 1 ask your Jjordships to attach 
 force to that view. The general cast of the British 
 North America Act forbids the construction that an 
 appeal of this nature shall exist against an Act nltra 
 vires of the local Legislature, because tlioro may be and 
 there have been innumerable attempted excesses per 
 mcun'am or otherwise of their legislative powers by the 
 Provincial Legislature and by the Dominion Parliament. 
 It must have been foreseen that niuhu" a Statute like this, 
 with its dilHculties of construction, with its inlerlacings, 
 and over lappings of jurisdiction, such excesses might 
 tidvc place. But no special remedy is given for any of 
 those excesses whatever. The law is held to be sutli- 
 cient. The attempt is void. You depend on your 
 
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 common right to attack, if necessary, or lo defend if 
 necessary, before the Courts of Justice of the land, who 
 compare the Provincial or the Dominion Act as the cuse may 
 be, witli the Supreme Law, the Constitution, and who 
 find whether it is within or without the power. If it is 
 without the power, the Act is at an end. That was 
 deemed adequate to all the people of Canada in order to 
 deal with all excesses of jurisdiction. Why should 
 there be an}^ necessity, if that bo so, for the establish- 
 ment of this particular tribunal to dual with this dry 
 legal question of excess of jurisdiction ? What pro- 
 priety would there be in sotting up the political tribunal 
 of the Privy Council of Canada to deal not with 
 any question of political expediency (as whether legisla- 
 tion should be dealt with in a special way,) but to deal 
 with the question of law whether a particular Act 
 accorded with or went beyond the Constitutional limits 
 of the powers of the provincial Legislature ? 
 
 These are general considerations. They apply to the 
 question whether you ought to expect any further pro- 
 tection in this regard, but If you look at the language 
 the argument is overwhelming, and of course the same 
 observations apply absolutely to sub-section 2 of the 
 22nd section of the Manitoba Act. There is no intention 
 needlessly to supplement by this extraordinary and 
 inapt remedy the absolutely and complete provisions of 
 sub-section 1. The remedy is an appeal ; but you do 
 not appeal from null or void legislative Acts. You 
 resist in Court an attempt to make them a reality. You 
 demand justice with reference to any man who sets up a 
 document which is a void Act. The appeal which is 
 given applies to Acts or decisions which " affect any 
 right or privilege ; " but a void Act affects nothing. It 
 only makes an ineffectual attempt to affect. It is a futile 
 and absolutely void attempt to affect, which the Courts 
 do not regard. The Appeal is against something which 
 does affect the right. The appeal is to a political and 
 non-judicial tribunal. Could it be said that it was 
 deliberately intended by the British North America Act 
 to change the course of justice by giving an appeal on a 
 question of law to a tribunal like that ? What does this 
 
Manitoba School Case, 1894. 
 
 8d 
 
 appeal aim at. It aims at obtaining from the Privy Council 
 ot" Canada a declaration that some provincial legislation is 
 required to remedy an accomplished wrong. Legislation 
 is required for something that has been done which is 
 wrong ; but no legislation is required to remedy an un- 
 successful attempt, an abortive attempt to do a wrong, 
 as would be the case if you were dealing with something 
 that was beyond the powers of the legislature. If there 
 had been privileges by law or practice in Barrett's case, 
 no appeal of this kind would have been required, as Sir 
 John Thompson put it in the memorandum upon the 
 theory of which he deferred until this stage the proceed- 
 ings m this appeal. No appeal is reijuired at all, because 
 the law has power to deal with the case. 
 
 Lord Macnagliten. No appeal would lie because it says 
 "from anything affecting any right or privilege." Sub- 
 section 1 does not affect it. 
 
 Mr, Blake. That is what I say. I say this Appeal is 
 from a transaction Avhich does something. That would 
 be an appeal I'rom an abortive attempt to do something. 
 
 Lord Macnarjhten. An appeal trom something as affect- 
 ing the rights and privileges which the Statute itself 
 says does not affect them. 
 
 Mr. Blake. Yes. On the theory of the case, nothing 
 in the law shall prejudicially affect, and therefore any 
 case which appeared to affect would be void, and would 
 in fact not affect ; but the Appeal is from something 
 which does affect. 
 
 Lord IVatson. It simply shews that there may be 
 legislation affecting the interests of the denominations, 
 which is permitted. 
 
 M)'. Blake. Certainly. The legislation I complain of 
 is permitted. 
 
 7%e I^ord Chancellor. It is quite clear legislation which 
 affects minorities is permitted if it does not affect some- 
 thing which exists prior. 
 
 Mr. Blake. Quito so. It is ponnittcd, and the only 
 safeguards we have are two, and I am coming to them 
 presently. There is the safeguard of Appeal, and that 
 is the check against the effectuating of that legislation. 
 
 T • 1 1 • » 
 
 it 18 good law if assented to by the Lieutenant Governor ; 
 
90 
 
 Manitoba School Case, 1894. 
 
 ' ! 
 
 1 i 
 
 1' 
 
 it comes upon the Statute Book properly ; and no one 
 can properly contest it. Now the Appeal is to end how? 
 In case the Provincin.l L(!g'islaturo does not .net in pur- 
 suance of the vitnvs of the Governor in Council it 
 depends on the dotcrniination of the Canadian Parliament 
 whether or not they will pass a remedial law, " make 
 remedial laws." 
 
 To remedy what ? To remedy something- wliich has 
 gone wrong. To remedy something affecting a right, 
 not to remedy somc^thing abortive, not to deal with waste- 
 paper, with something which by the Statute has already 
 been in etfeet declared waste-paper, but to remedy, as I 
 say some existing wrong. 
 
 As I submit the class of cases in the mind of Parlia- 
 ment in sub-section 3 of the British North America Act 
 and sub-section 2 of the Manitoba Act was another class 
 altogether from that which was dealt with by the first 
 sub-section. It was a class in which the Legislature or 
 the authorities acted intra vires, but in such a manner 
 that they did afiect certain rights or privileges existing 
 at the date of the action complained of Now I will refer 
 your Lordships to your Judgment at page 15?-, line 34, 
 as throwing some light also upon this point. 
 
 '* At the commencement of the argument a doubt was suggested 
 as to the competency of the present appeal in consequence of the 
 so-called appeal to the Governor-General in Council provided by the 
 Act. But their Lordships are satisfied that the provisions of sub- 
 sections 2 and 3 do not operate to withdraw such a question as that 
 involved in the present case from the jurisdiction of the ordinary 
 tribunals of the Country." 
 
 I do not say that your Lordships will consider 
 that as conclusive, and of course to the extent to 
 which it favors me it might be conceded in a certain 
 sense to be obiter. But there it is. Your Lordships 
 thought that this particular Appeal did not affect 
 the appeal to the ordinary tribunals of the coimtry in the 
 case on hand, wliich was the case of a suggestion 
 that the law had contravened the fundamental law. Then 
 again as to an .appeal from the provincial authorities 
 on pre-Union laws, is the decision of the provincial 
 authority on the pre-union law not according to law ? 
 
Manitoba School Case, 1894. 
 
 91 
 
 ; :'S 
 
 IE so the local authorities should of course maintain and 
 enforce the local law. Is the decision within the local law ? 
 Then no successful appeal is possible. But I acknow- 
 ledge and I su»i,'gest that it may be that cases of 
 enornionsly wide discretion may exist under the law in 
 administrative bodies wiih reference to the class of 
 subjects which I aver are covered by this Appeal. 
 
 The Lord Chancellor. The law might not in itself if 
 administered in a particular way affect any rights or 
 privileges, but you might have such power vested in an 
 individual as enabled him to affect them. 
 
 Mr. Blake. You giv(^ such a power to make regula- 
 tions without, perhaps going beyond the law in a way 
 which would make Courts of Justice say you were going 
 beyond them, that the practical eff'ect would be to 
 thwart vdiat you found was the intention of the law ; 
 I fancy it was to meet that. There is no doubt that in 
 some provinces of Canada, and I believe examples are 
 In be found elsewhere, a very large propr^Jju of the 
 educational system has by the law been entrusted to 
 administrators, the administrators being responsible of 
 course to Parliament, who will amend and alter the law 
 in case they find the authority is abused. The adminis- 
 trators may have power to colour and change the system 
 to a very great extent. 
 
 Lord Sharid. Have there been appeals of that kind — 
 not from an Act or decision ? 
 
 Mr. Blake. No, there is no instance of any appeal. 
 This is the first. 
 
 Lard Shand. A pretty large question would arise 
 afterwards if there should be any future legislation and 
 a prospect of other discussions. 
 
 Mr. Blake. That would be an additional good fortune, 
 my Lord. 
 
 Lord Shand. " Or in case any decision of the Governor- 
 General in Council on any Appeal under this section 
 is not duly executed by the proper Provincial authority 
 in that behalf, then and in every such case and as far 
 only as the circumstances of each case require, the Parlia- 
 ment of Canada may make remedial laws." It is very 
 curious. 
 
92 
 
 Manitoba School Case, 1894. 
 
 t I 
 
 :h 
 
 ii g I 
 
 ff ; 
 
 if' 
 
 i t 
 
 Mr. Blalce. Now all that I have said up to this applies 
 as expressly to sub-section 2 of Section 22, as to sub- 
 section 3 of Section 93. Ikit what I am now about to 
 point out to your Lordships has a more limited applica- 
 tion, although I think it throws some light upon the 
 other statute. If your Lordships will look now at sub- 
 section 3 you will find that the draughtsman, as too often 
 perhaps happens, has attempted to mass together 
 
 llie Lord Chancellor. Do they say that Sub-section 2 
 only applies as regards legislation for the purpose of 
 enforcing No. 1 ? 
 
 Mr. Blake. Yes. 
 
 The Lord Chancellor. Only. 
 
 Mr. Blake. Yes, my Lord, only. Of course it is 
 enough for me if it applies to both. 
 
 The I^ord Chancellor. If so upon the construction 
 which has been put upon sub-section 1 by this Board 
 the whole has no application at all. 
 
 Mr. Blake. The whole protection given to the minority 
 might just as well be blotted out. it would be blottea 
 out. 1 our Lordships have established that there was no 
 occasion for the first sub-section, and then there would 
 be nothing whatever for the Manitoba minority at all. 
 
 The Lord Chancellor. This is not a general enactment 
 applicable to the Provinces, to some of which it might 
 apply and to others not ; it is a special enactment 
 applicable only to Manitoba. 
 
 Mr. Blake. And that is part of the light which is to 
 be thrown upon it by the argument I am now about to 
 adduce. I want to find what the effect of the general 
 provision was over the other provinces. My argument 
 is that although it was by no means intended by the 
 British North America Act to establish a general equality 
 of condition where pre-Union conditions differed, yet, 
 subject to the one arrangement made between Ontario 
 and Quebec, it was intended to apply a similarity of 
 conditions of protection and of check to Provinces 
 similarly circumstanced ; and I find thus in this case as 
 in other cases of the British North America Act a general 
 attempt to deal with one plain and level condition which 
 was to be created for the Provinces, though not an 
 attempt to put them all in the same condition by some 
 
Manitoba School Case, 1894. 
 
 93 
 
 
 forced onactment at tho tiino of the passage of the Act. 
 Your Lordships will please to look at sub-soctioii 3, and 
 allow me to divide it up into the two classes of cases 
 with which it clearly and on its face deals. " Where in 
 any Province a system of separate or dissentient schools 
 exists by law at tho Union or is thereafter established by 
 the Legislature! of tho Province an Appeal shall lie." 
 
 Will your Lordships permit mo to taKc lirst of all the 
 second provision, and to read the clause with it, "Where 
 in any province a system of separate or dissentient 
 schools is after the Union established by the Legislature 
 of the Province an Appeal shall lie from any Act or 
 decision." I osk your Ijordship to say that is a perfectly 
 fair reading. Now is it not absolutely clear 
 
 The Lord Chnncellor. In the tlnrd sub-section as 
 regards the first part of it, " Where in any province a 
 system of separate or dissentient schools exists by law 
 at the Union," a consideration of the state of things 
 created by subse(iuent logislatir a could not exist accord- 
 ing to you, because it would be prevented by sub- 
 section 1. 
 
 Mr. Blake. There might be some changes. 
 
 The Lord Chancellor. I mean a change which prejudi- 
 cially affects by taking away their rights or privileges. 
 
 Mr. Blake. I wish to put to your Lordships an argu- 
 ment in a moment which involves the question of 
 " prejudicially affecting." There is a distinction adverted 
 to before on that, which I intend to deal with later. 
 Shortly it is this : In the case of rights and privileges 
 protected from being affected by a subsecjuent change in 
 the legislation — additional legislation — now legislation — 
 which did not alter absolutely to our disadvantage but 
 which gave, as for example, an added grant upon prin- 
 ciples which gave more absolutely to us than we had 
 before, but gave less to us relatively to the majority than 
 we had before — might involve an " affecting," by 
 putting us in a position which could not be said to be 
 " prejudicially affecting," because we got more money. 
 
 The Lord Chancellor. Could you say that there would 
 ever be an Appeal against something which affected you 
 beneficially? Your argument suggests that — that although 
 there ie more money, on the whole there is a prejudice 
 
94 
 
 Manitoba School Cahe, 1894, 
 
 :' i 
 
 otliorvviso you would not appeal against a Loncfit? 
 
 Mr. Blake. I have just onduavourcd to state 
 
 Lord Watson. Wo were dealing with the (piestion 
 under that sub- -section — whether an Appeal is not given 
 to the Goverrjr-Goneral from a deeision of any Pro- 
 vincial autlu rity constituted by this sauie Act. 
 
 }fr. Blake. Upon that I have ah'eady addressed the 
 argument to your Ijordships which occurred to mo. 
 
 Lord Watson. The chiuse is ])erlectly intelligible as 
 giving an Ai)peal against the aduiinistration ol' existing 
 Acts. The decision ol" a Board appointed by one of 
 these Acts establishing denominational schools and 
 separate schools, might very well be appealed. 
 
 Jjord tShand. Do vou contend that under sub-section 1 
 and the first part of sub-section 8, there would bo an 
 alternative remedy in case of legislation which went 
 too far ? 
 
 Ml'. Blale. I do, as a possible constructicm. 
 
 Ijord Shand. And you might have an action in Court 
 to say that is bad — that is absolutely struck out, or, J 
 may go to the Governor about it. 
 
 Mr. Blake. My view is, that though tho clause may 
 be wide enough to embrace these things, the mind of 
 Parliament had reference to other things. 
 
 Jjord Shand. I do not know what benefit or use these 
 may be. 
 
 Mr. Blake. They are no use. I was desirous to be 
 allowed to point out to your Lordships what is the 
 necessary result of the division into its two parts of this 
 clause, beginning with the case of J30st Union Acts. 
 Your Lordship will see at once why I am going on 
 sub-section 2 of 22, and contending that it should be 
 held to apply in a case in which there are no pre-Union 
 rights or privileges at all. Your Lordships have so 
 decided. 1 have got the case of no pre-Union rights. 
 Now, is there in the British North America Clause, 
 any provision for a case in which there are no pre-Union 
 rights ? I say, yes, expressly, and I read this clause in 
 that way. " Where in any Province a system of 
 separate or dissentient schools is after the Union 
 established by the Legislature of the Province an Appeal 
 
Manitoba School Cahe, 1894. 
 
 95 
 
 Tro- 
 tl l.lio 
 
 3 these 
 
 5 to be 
 
 is the 
 
 of this 
 
 Acts. 
 
 -■ i 
 
 sliivll lie." Ih it not perfectly clear ? And it is 
 eiiouo-h for my purpose that the Imp(>rlal Parliament 
 contemplated giving an Appeal to the Governor in 
 Council in cases in which there were no pre-existing 
 rights, no ])re-l'nion rights, no rights protected by sub- 
 section 1 at all, no rights, a contravention oi" which 
 W(tuld be a null Act. That is perfectly plain. These 
 were the cases of Nova Scotia and New Brunswick. 
 
 Lord ]}'afso)L The dilTcrenco becomes material having 
 regard to sub-section 2 of the Manitoba Act, at least to 
 my mind. The Appeal in the two cases is of a different 
 kind. The A])peul against an Act of the Legislature it 
 may mean, and does mean, I take it. The Act of the 
 Legislature which has become law would be the law of 
 the province if it were not modified on appeal to the 
 Governor-General. The effect of that is that if the 
 Governor-General decides that it is wrong that law will 
 stand modified. 
 
 l^he Lord (Jhancellor. It must bo modified by 
 legislation. 
 
 Lord Watson. It must be modified by legislation, and 
 if it is not modified by the Provincial Ijegislaturo in 
 itself, then provision is made for the modification being 
 enforced by an Act of the Parliamciit of Canada. In the 
 other case the Act or decision Ol the Legislature of the 
 province, or of any provincial authority affecting the 
 right can be abrogated without touching upon the legis- 
 lation which establislied that provincial authority. On 
 the other hand it might very well be that abrogating an 
 Act of the provincial authority which affected the right or 
 privilege of the Protestant minority, might be effected 
 without in the least degree touching upon educational 
 legislation. 
 
 Supposing the Advisory Hoard laid down that certain 
 Roman Catholic books should bo used in those schools 
 where Roman Catholic publications were to be per- 
 mitted. The Governor-General would have a right to 
 say I cancel that ordinance, and I say that such other 
 books substituted by the Roman Catholics themselves 
 shall bo substituted. The grievance might consist in 
 the selection of books by an authority constituted for the 
 
96 
 
 Manitoba School Cask, 1894. 
 
 ; I 
 
 b. 
 
 piirposo of administoring tlio Act. That might very 
 well bo 80. It clifillcngcH what is done by those who 
 arc administering th(; law. I (piite admit their actions 
 may be of siieh a kind that ont; rnns very elosc^ly to tlu; 
 other. There might b(^ a ehallenge of both. First 
 against the statute giving too great latitude, and secomlly 
 against the aeticm of the Administrative IJoard. 
 
 l]fr. Jihthc. I say at this moment, my l^ords, T am 
 engaged upon the argument of the nu-aning of this 
 Clause. 
 
 Tlie Lord Chancellor. What you are saying is this, 
 that the third sub-section of Section 93 clearly pointed 
 to the protection of r ghts acquired by legislation subse- 
 quent to the Act of Union. 
 
 Mr. Blake. Yes. 
 
 The Lord Chaiicellor. That is what yon are upon. 
 
 J/?', Blake. Thai is all I am upon, and respectfully ask 
 your Lordships that I may be permitted not to further 
 discuss the question whether this includes legislation or 
 not, because I think I have already dealt as fully with 
 that whole subject as I am able, I do not think I can 
 usefully add anything further upon that. What I main- 
 tain is this, that I have submitted to your Lordships that 
 the Imperial Parliament designed that in a case whore 
 there were no pre-Union rights or privileges whatever, 
 where, therefore, there was nothing which could make 
 any law in relation to education void under sub-section 1, 
 where by consequence the Provincial law would be 
 effective law, it yet provides an Appeal against post 
 Union legislation 
 
 The Lord Chancellor. Or the effects of post Union 
 legislation 
 
 Mr. Blake. Or the effects of post Union legislation : 
 one or the other, affecting any right or privilege of the 
 Protestants, of the Protestant or Roman Catholic 
 minorities. No pre-Union right could in that case be 
 established. From the very language of the Act the 
 right affected was to grow out of the power exercised 
 subsequent to the Union by the legislation of the 
 Province lo set up separate schools. The section is, 
 " Where in any Province a system of separate or dig- 
 
I 
 
 Manitoba School Case, 1894. 
 
 97 
 
 Union 
 
 S 
 
 Bontiont schools o o o o jg r^f^^j. ||,q JJnion oHtab- 
 IIhIioiI by tliL' LcgiHlfituro of tho I'rovinco an A]){k;{vI 
 8liall liu " " *•* *■' from any Act or docision 
 *■* " *■* '-^ atVeotinf^ any ri<;'lii or |)rivil('<;'('." 'I'liero- 
 foro an Act or decision passed hMlis(M|iient Jo tho 
 post Union legislation. An Appeal was ^'iven I'roni an 
 Act allectin^ thing's created by the Iji'i:;islatiir(i of tho 
 Provinci^, /Wm r/;Y'.s of tho I'rovince, iiithe ease of tho 
 two I'rovinces, Nova Scotia and New IJrnnswick. 
 
 7 /ic Lord (!h(m('f'//or. That mif^lit be satisfied sup- 
 ])()sing' you liad a system of non-denominational educa- 
 tion previously which was o])en to all, a system we will 
 suj)pose somewhat similar to that wliicli was created in 
 l.S'JO in Manitoba, and then you af'erwards establish a 
 denominatioiuil system. It mi^'ht jr, intended to pre- 
 serve the rig'hts which existed by that h^^'islation to a 
 conscience clause, or somothin*^ of that sort. It can 
 hardly bo said tliat those words would hv purposeless, 
 unless they intended and included rights created by 
 post Uniim leo-islation. They may bo a protection from 
 post Union denominational education ? 
 
 Mr. Blake. Not so, my Lord. 
 
 The Lord Ghanecllor. I understand what you say. It 
 could not be so, because tho first sub-section deals with 
 that case. 
 
 Mr. Blake. Not only that, but because this section in 
 the limb with which 1 am now dealing deals only with 
 the case of the creation of privileges after the Union. 
 
 The Lord Chancellor. Is it necessarily the creation of 
 the privilege ? It does not say the creation of tho 
 ])rivilege. They set up after the union these denomina- 
 tional schools, we will suppose. These denominational 
 schools may bo so administered as to allect rights then 
 existing — persons who desire undi'uominational educa- 
 tion. It is true denominational schools have come into 
 existence, but there are two sides to this question. You 
 may injure denominational people by non-tlenominational 
 education, you nuiy injure non-denominational people by 
 denominational education, and therefore the words would 
 be satislied by an application (I do not say there was 
 such a case) to a case where post Union denominational 
 education affected the rights of those who desired and 
 bad theretofore enjoyed non-denominational education. 
 
98 
 
 Manitoha School ('ahk, 1894. 
 
 Lord Shawl. Tluit dooH not in tlio leant all'ec't your 
 iirguniont that you iiro putting*. 
 
 The Lord ( h(inc('//or. Woll, it allbctH tlu^ ar^uin(Mit 
 Mr. Blako is jnittin^-, but it doos not atl'cct his ar^unicnt, 
 nndcr Section 22. I nndcrstood tlu; arniiniont to Ix* 
 thiw — and if it can be OHtablislicd there would \)v. force in 
 it as throvvin<;' Ii;;-ht on tlie otlu>r — thaiHub-HOotion 8 must 
 have been (k'sigiied to protect ri^litH ac([uired unth'r 
 (h'noniinational ieg'ishitioii of a post Union cliaracter. It 
 does not Heeni to bo certain tluit that must be so, aiuh if 
 BO, the force of the Jirgnnient is ^one as assisting- yon. 
 
 Ml'. JUake. Will your Lordship, then, allow me, for 
 the pnrpos(^ of meeting yonr argument, to refer to the 
 other limb as throwing light on this one. The cases 
 provided for are two in class. They are exhaustive. 
 There is to be Appeal in no otlier than either of these 
 two classes of eases. The first class is where a system 
 oC separate or dissivntient schools exists by law at the 
 Union. Now that is already protected. It is protected 
 by the ])rior clanses. It cannot be struck at. 
 
 The Lord ChanceUor. Well, it is protected so far as 
 regards the law. It cannot be altered by law, but it 
 may bo most materially atfected by the administration of 
 the law. 
 
 Mr. Blake. Yes, my Lord, but your Lordship is deal- 
 ing with ir, in the sense of protection of the non-denomi- 
 national part of the commnnity, but it is the protection 
 of those who go for the system of separate schtjohi such 
 as the Roman Catholic denominational school, or the 
 dissentient school, which was the title mainly of the 
 distinctively Protestant separate school in the Province 
 of Quebec. Those were the two systems which were 
 referred to. 
 
 The I^ord Chancellor. Yes, but then yon may have 
 thereafter what I will call the Quebec system, where the 
 majority is denominational and creates a denominational 
 system. Yon might have that created afterwards, not 
 having existed at the time of the Union. 
 
 Mr. Blake. Doubtless. 
 
 The Jjord ChanceUor. And by its creation affecting the 
 educational rights which were existing at the timQ of the 
 Union, 
 
 
Manitoba Siikiol Cakk, 1894. 
 
 99 
 
 Mr, lilnke. Not uflbctin^ it witli regard to tliin Anneal 
 bocaUHo upon tliat theory it iH a general HVHtcni wliieli in 
 to be altered — the general Hysteni applicabh^ to the 
 niajoritv of tlu^ popiilafion, but this A])p('ai is only IVom 
 Acts which allcct liif minority ol'the popiihilion. 
 
 'The Lord Chdnvcllitv. \ am putting the case '.vliero 
 you iiad a non-<lenominalional systi-m existing. 
 
 Mr. lihthc. Take Ontario. 
 
 The Lord Clnwn'llor. Very well, we will HU|)poHe that 
 afterwards tlu' eases wero reversed, and liiat in Ontario 
 the Roman Cat holies beeanie the nnijority and the 
 ProtestantH the minority. Of course we eannot take tiuit 
 particular case, beeaust; Ontario and Quebec are [)rovide(l 
 for by the special provisions, but I am taking the casooi! 
 another ])rovince. 
 
 Mr. Jilnkc. Will your r.ordship allow mc to interpose. 
 It is utterly impossible Tor your Lordshij), knowing all 
 the circumstances of the case, to omit Ontario and 
 Quebec, because there were four provinces covered by 
 the Hritish North America Act, ami you know what their 
 laws were. These clauses show that there was a systt'ui 
 of denominational schools in Ontario and Quebec. 
 
 The Lord Chancellor. What were there in the other 
 provinces ? 
 
 Mr. Blake. There wore none, my Lord. In Nova 
 Scotia and New Brunswick there was no system of 
 separate or dissentient schools. 
 
 The Lord Chancellor. Was there an educational sys- 
 tem? 
 
 Mr. Blake. Yes there was ; but one, which did not 
 provide lor se[)aratt; or ilissentient schools. 
 
 The Lord Chancellor. But in one of tlu^ ])rovinces there 
 might have been a system which did establish a separate 
 system, and you might have needed, owing to the estab- 
 lishment of that separate system, a protection for tlie 
 minority who were outside it, or did not want it — -just 
 as much as a protection for the persons who were in the 
 minority. 
 
 Mr. Blake. Your Lordship suggests that the applica- 
 tion of it would be to a case in which the majority in 
 the provinces established a system of separate or dissen- 
 
100 
 
 Manitoba School Case, 1894. 
 
 ) I 
 
 i I 
 
 tient scliools — separate or dissentient scliools wlijch in 
 all cases are scliools of the minority — for the majority, 
 and so oppressed the minority by making the general 
 public school system a system to which they could not 
 send their children. 
 
 Lord Watson. I think it was intended to give an equal 
 remedy. 
 
 3fr. Blake. I ask your Lordship to consider that it is 
 tiie establishment of a system of separate and dissentient 
 schools, which means schools for the minority, and once 
 that is established, whether they were established before 
 the Union, or if they had been established after the 
 Union, then an Appeal lies. 
 
 The Lord Chancellor. You say that separate or 
 dissentient cannot mean a general system ; that separate 
 or dissentient implies that it is a separate part. 
 
 Mr. Blake. You are separate. What are you separate 
 from ? From the bulk. You are dissentient. You are 
 dissentient from the majority. 
 
 The Lord Chancellor. I think that may bo an answer. 
 
 Lord Sha7id. There is that idea of the minority which 
 occurs afterwards. 
 
 Mr. Blake. Yes, my Lord, it is all the same. 
 
 The Lord Chancellor. The point I was putting to you 
 would equally affect the minority. If you had a general 
 system established, we will suppose, in Nova Scotia, 
 and the Roman Catholics got the upper hand and 
 established a system of denominational educaticm and 
 said, " We will have nothing but Roman Catholic schools, 
 where nothing but the Roman Catholic religion shall be 
 taught," of course, there the Protestants nmst be most 
 materially and prejudicially alfected by it. 
 
 Mr. Blake. Doubtless. 
 
 The Lord Chancellor. Do you say that there would be 
 no remedy in such a case as that ? 
 
 Mr. Blake. The case never occurred to me, because it 
 is so absolutely opposed to ;dl the traditions and leelings 
 and actions of the people concerned. 
 
 lite Lord Chancellor. It may be that it was not 
 anticipated, and therefore it may be an answer to say 
 that it was so improbable that nobody contemplated it, 
 
Manitoba School Case, 1894. 
 
 101 
 
 and therefore they did not provide for it, but your con- 
 struction would leave it unprovided for. 
 
 Afr. Blake. I have not thought it out. It never 
 occurred to mo as w^ithin the reahns of conjecture. 
 
 Lord Shand. The rights and ])rivileges of the Pro- 
 testants are as well guarded here as the Catholics. 
 
 J\lr. Blake. Certainly. The intention was to guard 
 them as well. 
 
 The Lord Chancellor. Certainly, you are so far justi- 
 fied that the provision relating only to the establishing 
 oC a system of separate or dissentient schools does seem 
 to indicate that it was only ap])lying to an educational 
 system thereafter created for the benefit of the 
 minority. 
 
 Mr. Blake. For the benefit of the minori.'y. 
 
 The Lord Chancellor. T (piite agree that the use of the 
 words " separate and dissentient " points to it. 
 
 Mr. Blake. Yes, because you have got systems 
 created 
 
 The Lord Chancellor. You say that it is a matter that 
 could not be contemplated because it is impossible that 
 it ever could come about, but it would be a curious 
 result if there were no protection to either a Protestant 
 or a Roman Catholic minority if you had a denomi- 
 national system unpalatable to the minority created 
 without any separate system. 
 
 Mr. Blake. That is true, my Lord ; but I really think 
 that it never occurred to anybody to suppose that it 
 could be done. 
 
 The Lord Chancellor. Quite so ; they were dealing 
 with places where they had these schools in Quebee and 
 Ontario, and, as to the others, still you might have, of 
 course, a Protestant system. 
 
 Mr. Blake. For instance, my Lord, it passes the 
 wildest dreams of conjecture to suggest that there would 
 be a Roman Catholic majority in the Province of Nova 
 Scotia or New Brunswick, 
 
 The Lord Chancellor. Supposing that thoy established 
 a general system of schools, the Roman Catholic majority 
 might be prejudicially affected, and there wotld be no 
 redress. 
 
102 
 
 Manitoba School Case, 1894 
 
 Mr. Blahe. It may be so, but I really conceive that 
 that was a case not thought of. What was apprehended 
 as possible was that the privileges given to the minori- 
 ties by the existing legislation might be affected or 
 impaired by the majority, but nobody thought of the 
 majorities clianging colour, creed or complexion ; but 
 thai to the full extent all these existing privileges were 
 intended to be guarded by sub-section 1. Then, as I 
 conceive, the intention of this one was to deal with the 
 post Union creation of rights. 
 
 The Lord Chancellor, t am not sure that attempting 
 to illustrate the 2nd sub-section of Section 22 by this 
 one is not ohscuritr.i per ohscurius. 
 
 Mr. Blahe. Perhaps so. 
 
 The Lord Chancellor. Although I quite appreciate 
 your point. 
 
 Ifr. Blake. Then my Lord, I was endeavouring to 
 point out to your Lordships that under that, considering 
 the system of separate or dissentient schools as ex- 
 pounded by the whole clause, the prior parts of the 
 clause and this one, and by reference to the existing 
 plans of separate or dissentient schools, the foundation 
 of the rights acquired in future and intended to be pro- 
 tected, is the establishment of a system of separate or 
 dissentient schools later on in either of the Provinces of 
 Nova Scotia and New Brunswick. That done, an appeal 
 lies from any Act or decision affecting any right or pri- 
 vilege so acquired whether by the Protestant or the 
 Roman Catholic minority. Now, if that be so, and I 
 submit that any reasonable construction is conclusive of 
 that proposition, why should the minority of the Queen's 
 subjects, Protestant or Roman Catholic, in Quebec or 
 Ontario, be deprived of the same right of appeal in the 
 case of any subsequent privileges granted to them, 
 although they had a system of separate or dissentient 
 schools at the Union. I got an application for the first 
 limb of the sentence i'rom the consideration of what the 
 second limb does for those jDrovinces in which there was 
 no pre-union system. 
 
 The Lord Chancellor. That of course is on the 
 assumption, I do not say it is well or ill founded, that 
 the privileges and rights intended to be protected by 
 
 \ 
 
Manitoba School Case, 1894. 
 
 103 
 
 -if 
 I 
 
 the third sub-section in the caso of the post-Union 
 Legisliition, are the privileges and rights acquired under 
 that Legislation which so establishes the separate or 
 dissentient schools. 
 
 Jfr. Blake. My Lord, in the case of pre-Union legis- 
 lation it is just the contri?ry. 
 
 The Lord Chancellor. I say you are applying now 
 post union to pre-union legislation. That application, 
 so far as it assists you, depends upon your making good 
 your contention that t'lie rights and privileges intended 
 to be protected by sub-section 3 in the case of post 
 Union Legislation, are the rights and privileges acquired 
 by that Legislation. 
 
 Mr. Blake. Granted, my Lord. Then, on that 
 assumption, I point out that it may happen, and, as a 
 matter of fact, it has happened, that in both Ontario and 
 Quebec where there were systems — in the one of sepa- 
 rate, and the other of dissentient, schools — at the Union, 
 there has been further legislation granting additional 
 privileges to the Protestant minority in Quebec, to the 
 Catholic minority in Ontario. It is enough for me to 
 say it might have happened, as a matter of fact it has 
 happened. I ask on what principle, on the assumption 
 which your Lordsbip is nuiking and which I concede, 
 could that minority in Ontario and Quebec be deprived 
 of that same protection for post-Union added rights and 
 privileges granted to them which is given to the 
 Protestant and Poman Catholic minorities in other 
 provinces for rights and privileges created after the 
 Union ? And so you get a reasonable meaning and con- 
 struction for the two limbs without dealing with the pre- 
 Union rights at all. You have two cases of pre-Union 
 legislation where certain rights and privileges have 
 been granted, and are absolutely protected. You have 
 two cases where there were none, and in both those 
 classes of cases it was possible that after the Union, in 
 the one a system might be created giving rights and 
 privileges to the minority and in the other further rights 
 and privileges might be given to the minority. Both 
 these transactions would be intra vires but liable to 
 repeal. Acts repealing these rights and privileges would 
 be i7itra vires ; but as to repealing, these rights once 
 
104 
 
 Manitoba School Case, 1894. 
 
 1 r 
 
 i ( 
 
 i 
 
 M 
 
 hi 
 
 r 
 
 created are subject to possible check under an appeal. 
 That is the suggestion I have to make on that subject. 
 
 Now one hist observation. In sub-section 4 you find 
 " In case any such provincial law as from time to time 
 seems to the Governor in Council requisite for the due 
 execution of the provisions of this section " and so on. 
 The phrase " from time to time " would rather indicate 
 an idea that from time to time there miii'ht be transactions 
 
 affectina: the 
 
 mmoritv, 
 
 and that from time to time 
 
 remedial laws might be required, than that it refers to 
 one single set of transactions before the Union, sought to 
 be and sought ineffectively to be struck at, by transac- 
 tions after the Union. 
 
 Now, I do not at this moment turn to sub-Section 2 
 of 22, because I propose to treat sub-Section 2 sepa- 
 rately, so far as it retjuiros separate treatment. I want 
 to finish my examhiation of the British North America 
 Act on points which are common to it and to sub-Section 2 
 of Section 22. There are other reasons I aver against 3 
 and 4 being a remedy for breach of the prohibition in 
 sub-Section 1, and they are to be found in both sub- 
 sections, in the marked differences between the sub- 
 sections themselves. First, as to the persons who can 
 take advantage of, or who are within the benefit of the 
 sections respectively. The persons who can take advantage 
 of the first sub-section are " any class of persons " 
 whether the majority or the minority, or any individual 
 as I suggest, belonging to any class, or perhaps any one 
 at all, although he stands alone if he is attempted to be 
 touched or affected by the void law. If he is attempted 
 to be touched or affected by the void law he has a right 
 to complain on being so attempted to be touched or 
 affected. If he is struck at he has a right to set up that 
 the law is void, and this by its nature — by the nature 
 of the provision — and by the definition. 
 
 The Lord Chancellor. I suppose you would say that if 
 you had an undenominational system in Nova Scotia or 
 New Brunswick wliicli gave educational rights to all 
 persons of undenominational character it would be an 
 interference with this sub-section 1 if you were to create 
 an entirely denominational system. The words are, 
 " any right or privilege with respect to denomhiational 
 
Manitoba School Case, 1894. 
 
 105 
 
 schools," but I suppose that would as much cover a 
 right to have education undenominational as a right to 
 have it denominational. 
 
 Mr. Blake. Tliat may possibly be, my Lord. I do not 
 know 1 am sure, I have not considered that ([uestion. 
 
 Lord Macnatjhtcn. They were guarding denominational 
 schools. 
 
 Mr. Blake. I am convinced that the legislation had the 
 aspect of guarding denominationalism. 
 
 The Lord Chancellor. It made provision for a denomi- 
 national system. 
 
 3fr. Blake. Theoretically ; what practical men were 
 dealing with was this — that the trend of thought, if 
 there was a trend of thought, was rather in favour of the 
 uniform system, and those who thought that uniform 
 system an abominable injustice in the sense of its allow- 
 ing denominational education, and compelling children 
 to attend schools where they were taught no religion or a 
 religion which they did not profess, and those who feared 
 the danger of its offending the views of the minority, 
 who insisted on religion being mixed with education 
 
 Lord Watson. 1 think the difficulty I had in following 
 the argument in connection with this is that sub-section 
 1 of the Manitoba Act seems to me to be conceived in 
 terms which, j^rinia facie show that a certain subject was 
 to be excluded from the field of legislation — ahogether 
 shut out. 
 
 Mr. Blake. Yes, my Lord. 
 
 Lord Watson. Well, I think it is hardly probable that 
 the Legislature would proceed to deal with legislation 
 upon that forbidden topic, legislation liable to be re- 
 vised and altered by the Governor-General to such an 
 ex^^ent as he sha^l think fit. 
 
 Mr. Blake. I am very glad to hear your Lordship say so. 
 
 Lord Watson. I think the power of the Governor- 
 General must have reference to some subject matter 
 which was within the competency of the provincial 
 Legislature to make laws upon. 
 
 Mr. Blake. Yes, my Lord. 
 
 Lord Watson. They are subject no doubt to it and 
 they may be constrained by force majeure in the shape 
 of the Governor-General and the Canadian Parliament, 
 but until that is done their legislation stands. 
 
106 
 
 Manitoba School Case, 1894. 
 
 ■i '■ 
 
 i ! 
 
 The Lord Chancellor. Are there instances of laws of 
 the provincial Legislature having been disallowed on the 
 ground that they were uJtra vires. 
 
 Mr. Blake. Yes. my Lord, there are rare instances of 
 that kind. I may touch upon the subject afterwards. 
 
 Now, as I was saying to your Lordship, your Lordship's 
 proposition is that what the Legislature was thinking of 
 and trying to guard against, was the creation of a system 
 by the majority, by which they should compel the 
 minority to attend schools in which religious doctrines 
 in which they did not believe were taught, and would be 
 crannned down their throats. Now that we looked upon 
 as an impossibility. We are not past the age in which 
 it is thought that the proper system may be, (and it is 
 in some places thought to be) one which is absolutely 
 non-denominational, if it can be so framed, and without 
 religion in that sense. That is another question. But 
 the idea of a majority, whether Catholic or Protestant, 
 using or abusing power to force the minority to come to 
 schools and be taught, if Protestants, by a priest 
 
 The Lord Chancellor. No, no ; I do not know that it 
 is an inconceivable case that the Roman Catholic, if in a 
 majority, might create a system of purely denominational 
 schools, with a Conscience Clause. There is nothing 
 extraordinary in that. 
 
 Mr. Blake. No ; because the very system of educa- 
 tion, as your Lordship finds from the admitted state of 
 facts, is not a mere question of sacred images being 
 stuck up on a wall or concealed in a cupboard, or of the 
 children staying away if they do not wish to attend, but 
 what they contend for is the question of interfusing 
 religion all through the teaching. 
 
 The Lord Chancellor. I believe there are Roman 
 Catholic schools in parts of Ireland which are available 
 for Protestant children, and where their only protection 
 is the Conscience Clause. 
 
 3Ir. Blake. It may be, my Lord ; but of course in this 
 case we are dealing with a state of facts, so far as the 
 facts are concerned, as to doctrines held 
 
 The Lord Chancellor. But it was looking to the future, 
 it was not intended for a time, if I may say so. 
 
 Mr, Blake. No, I do not make myself clear. What I 
 
 » 
 
Manitoba School Case, 1894. 
 
 107 
 
 being 
 
 I'd 
 
 I 
 
 i 
 I 
 
 mean is that the doctrine of the Church and the view of 
 the Church, is to teach religion throughout the teaching 
 in the schools. I refer to the evidence which was 
 accepted and upon which your Jjordships acted on the 
 last occasion. I will refer your Lordships later to pas- 
 sages of the evidence of the Archbishop which were 
 accepted as common ground, and as correct as to the 
 Roman Catholic view. And I think your Tjordships will 
 sec that such a view is absohitely inconsistent with the 
 idea that the full development of the Roman Catholic 
 plan which they assert as their right under denomina- 
 tional schools, could be effected by them without doing- 
 violence to the consciences of Protestants. 
 
 Lo7'd Macnacjlden. If an Act, similar to the Act of 
 1890, had been passed in 1871, you would have had no 
 privileges at all. 
 
 Mr. Blahe. Granted, my Lord. 
 
 Lord Macnaghten. It would have been the first Act. 
 AVould you have had any privileges ? 
 
 Mr. Blake. I do not think so. I have not considered 
 the subject ; my impression is that your Lordship is 
 correct. 
 
 Lord Shayid. I think that is quite clear, because it 
 must be a privilege that has been affected by subsequent 
 legislation. 
 
 Ljord MacnagJiten. You say such a thing was not in 
 contemplation at that time. 
 
 Mr. Blahe. I was not saying that, my Lord, at the 
 moment ; what I say was not contemplated at that time, 
 and is not contemplated now. Much as I may object, the 
 Act of 1890, is the creation of a system in which a 
 distinctly dogmatic teaching contrary to the opinions of 
 those who have to attend the schools would be forced 
 upon them. 
 
 The Lord Chancellor. Of course you might have this 
 state of things. This is a Manitoba Act. It is framed 
 with a view to the condition of things there. It may 
 have been known that at that time the parties were as 
 nearly balanced that to take for instance the Roman 
 Catholics, they were (juite able to protect themselves 
 against legislation which would, deal with them unfairly, 
 but that the character of the population as it grew by 
 
,! . 
 
 108 
 
 Manitoba School Case, 1894. 
 
 emigration and so on, would change, and that in that 
 way the legislation which was then obtained, and which 
 thev knew they were in a position to obtain, might bo 
 prejudicially obtained. 
 
 Air. lihke. That is what T was about to argue later on. 
 Take the circumstances of Maniloba as to population, 
 take the contentions that wore raised, follow up the 
 power given in relation to education with what was at 
 once done,and you find the Legislature itself recognizing 
 the condition of equality by the Roman Catholic claims, 
 and dealing with education in this way. It was in con- 
 templation that it should be so. There was no difficulty 
 about it tlien, and that state of things continued for 19 
 years. I think if we are to enter into the realms of 
 conjecture, we may well conjecture that the people of 
 Manitoba and the people of the Dominion in framing 
 this provision framed it on the theory that that would 
 be done which was done, and that being so, the question 
 was whether at some future time a condition of things 
 altogether different might not arise in which the ex- 
 pected legislation might be altered, and whether there 
 should not be some protection against the danger of that 
 alteration. There is no doubt that it would be a reason- 
 able conjecture in view of the circumstances of the 
 Province, and of the other Provinces, and viewing the 
 sources from which emigration might be expected, that 
 those who were then the majority would become the 
 minority, that the Protestants would be overwhelmingly 
 in that majority. Nobody conceived anything else as 
 within the realms of possibility, and that being so, it 
 was expected that laws thought just and at any rate 
 acceptable to the population at the time would be passed, 
 and it was intended to give some security against their 
 subsequent repeal. Now, when one of your Lordships 
 took up that other question, 1 was asking your Lordships 
 to take three or four points of distinction which add to 
 the force of the proposition that this sub-section and the 
 Manitoba sub-section are not additional means or 
 sanctions for the observance of sub-section 1, but are 
 directed to something else. The first one is that the 
 persons who can take advantage of or come within the 
 benefit of sub-section 1 are all classes of persons, 
 
 « 
 
Manitoba School Case, 1894. 
 
 109 
 
 whether of the majority or the minority. Logan, for 
 example, who was belbro your Lordships in the former 
 case, was one of tlie Protestant majority. In Barrett's 
 case there was another intervener. Lo^an, who ap- 
 ])eare(l niulor sin^-uhir oiroiimstanoes in favour of the 
 Ani;li('an ('luircli. Ijogan was ouv ol'lho majority, but 
 nolxxly denied llial lie was witiun Ihe l)enelit ol' this 
 soclion, and could ('om[)hiiu that this haw was void if it 
 had viohited rights or privileges with regard to his 
 denominational school. Thus any person touched by 
 the void law, and ny class of persons according to the 
 express language, although that class may be the 
 majority, can strike at the law and avail themselves of 
 the protection of the law under the first sub-section, 
 liut who are saved by the later sub-section ? You are 
 not to atfect any right or privilege of the Protestant or 
 the Roman Catholic minority of the Queen's subjects. 
 Tlie law alters the class of i)ersons ; anyone, whether of 
 the minority 
 
 Tlic Lord Chancellor. That Sub-section 2 seems to 
 indicate the view that what was the minority, whether 
 the Roman Catholic or the Protestant might from time 
 to time be changed. 
 
 Afr. Blake. Yes, my Lord, it may be, and probably 
 was, the case, that it was uncertain which was in the 
 majority at that moment. They were about on an 
 0(|uality. 
 
 Lord Macnaghten. About 25,000 each. 
 
 Mr. Blake. I do not think there was as many, though 
 I do not remember now. 
 
 Lord Macnaghten. It is only my recollection. I 
 dare say I am wrong. 
 
 Mr. Blake. I do not reuicmber clearly how that was. 
 
 Lord Macnaghten. It was very small, they were very 
 equally balanced. 
 
 Mr. Blake. They were very equally balanced, as 
 everything shows. The Board is made equal by the 
 subsequent legislation. The districts are made equal — 
 there are 12 Protestant and 12 Catholic districts. I do 
 not know really which was in the majority at the time, 
 but it was well known that that condition of things would 
 not remain. 
 
/ : 
 
 no 
 
 Manitoba School Camk, 1894. 
 
 Lord Macnaghtcn. I ratliur iliink that tho Itoinaii 
 CatliolicH were Hlightly in the majority. 
 
 Mr Jilahe. That waH tho vjigiu! improHision I ha<l, but 
 thoy boiiig my cliontH I did not liko to way ko ; tho 
 va;j,'U(' iiiipresKion I had was that they wcn^ nhghtly in 
 jlio iiiaioritv, l>iit cvcrylxMlv know that that Htatc! of 
 thiu^H would not contimie. Now, as 1 way, tho second 
 cluHH of ])orHonH who could alono take advantage of this 
 hitor sub-Hoction were tho Trotostant or Roman Catholic 
 minorities ; so that, while a member of the religious 
 majority of the population can take advantage of No. 1, 
 he cannot at all take advantage of No. 2. You have 
 different classes. Then tho rights protecteil are different. 
 In sub-section 1 they are rights with respect to denomi- 
 national schools existing by law at tho Union, but in 
 sub-section 3 they are rights in relation to education, 
 and here comes in an observation I made yesterday 
 pointing out to your Lordship how wide the phrase " in 
 relation to education " is. There is a different phrase 
 adopted, and, of course, there is no limitation of time. 
 Nothing is said about " at the Union." On the contrary, 
 as I have argued, there is an express indication of post- 
 Union rights being intended to be dealt with. There 
 certainly is no limitation, so that you have a new phrase 
 used as to the rights and a new phrase as to the persons. 
 
 Lord Watson. If you confine it to these cases under 
 Sub-section 2, it looks very like prescribing rules for 
 taking Appeals in Actions which cannot be completely 
 brought. 
 
 Mr. Blal'c. Yes, my Lord, no doubt. 
 
 Ijord ]Vatson. In other words. Appeals for the purpose 
 of correcting legislation, which is functus mcotnpeteus ; 
 it may be so. It may be an awkward way of saying it. 
 
 Mr. Blal-e. So that you have in the first rights with 
 regard to denominational schools existent at the Union, 
 and in the second you have rights in relation to educa- 
 tion in cases in which certanily after the Union, though 
 also possibly owing to the width of the language, but 
 not according to my conception in the mind of Parliament 
 before the Union, a separate and dissentient class is 
 established. Then thirdly, the character of the Acts 
 
 ♦ 
 
Manitoba School Cahe, 1894. 
 
 Ill 
 
 (( 
 
 in 
 
 liougli 
 
 niianlod a^aiiiHt Ih ilitturent : Hnl>Hoctioii 1 HuyH shull 
 " projudicially atrect ; " Bub-Hoction 3 navH only " aHi^ct- 
 in<;," and as I haw already said to your Lordsliips, a 
 cuso nii<;lit arise in wliicli tlioro nii^lit bo an " aHec'ting" 
 under this clauHo of tlic privilc^'cH ol' tlui minority with- 
 out |)»ittin<T,' tluMu positively in a more disadvanta^'cous 
 position with rofcrcuieo to existing' grants; a case vviiich 
 should put them relatively in a less good position, as ibr 
 exam])lo, it' an added numey grant were niad(!, but made 
 in ditibrent proportions from the existing money grants 
 — made in pro])ortion8 which did TU)t conform to the 
 pro])ortion8 of the existing money grants, giving them 
 loss and the majority more. Their existing rights and 
 privileges would bo " affected," but they would 
 not, perhaps, be " prejudicially affected." At any 
 rate your Lordships find that word " prejiulicially ' 
 omitted, and very strong observations wore made by 
 Lord Watson on the occasion of the last argument on 
 the utter impossibility of ignoring the fact that the word 
 '• projudicially " was omitted and the need of giving 
 some other interpretation to the word " affecting," in 
 consequence of its standing without " prejudicially." 
 
 Now, these observations apply also to tho second sub- 
 section of the Manitoba Act. 
 
 I turn now, my Lords, to that section of tho Manitoba 
 Act, and, in construing it, I. ask your Lordships to take 
 into consideration the general principle which I submit 
 is applicable to the interpretation of any doubtful 
 phrases. I submit that the general view of tho original 
 Jh'itish North America Act, and the general view of the 
 Manitoba Act was to put all the provinces as near as 
 may bo on the same footing as to the rights given by 
 the Act. As I have saiil before, I never have suggested 
 anything so absurd as that it was intended by a stroke 
 of tho pen to alter the conditions which existed in 
 different provinces on many local points. But when tho 
 British North America Act was providing for their 
 inclusion in tho federation, the general intent of that Act 
 as indicated by its provisions, is to put the provinces as 
 near as may be on the same footing with reference to 
 their rights under tho Act. So you find in Section 93 it 
 
112 
 
 Manitoba School Cahk, 1894. 
 
 i ; 
 
 JH " Notliin^ in any snoli law sliall j)roju(Hoially afToot 
 any ri^ht or privilege witli regard lo ticiioininational 
 HchooJH wliicli anv claHH of pcrKoiis HJiail iiavc hy law in 
 the [uovincc" That is gcni'ral in i(H apnliealion. In 
 Home ol' the provineeH there may !»' no rights. 
 
 Liir<1 WdtxotK All that I am disposetl to inl'ei' from ih(^ 
 ierniH ol'tlie A<!t ol' IH07, ai'(> that these eonditioiis an to 
 edueation which arc endxxlied in Section U.'J were Huch 
 as the provinc(^H considered suitable for themselves at 
 that period, and wen^ willitig to suhniit to — that is one 
 of the terms of confederation U])on which they were 
 agreed. I can (|nite easily conceive that another ])ro- 
 vince coming in at a more recent date, such as Manitoba, 
 should stand out for terms which that province con- 
 sidered more suitable for their own position. 
 
 Mr. JJlaJiC. Doubtless. I do not dispute that proposi- 
 tion. 
 
 Lord ]\^(itson. I do not think there is Jiny absohite 
 desire on the part of any to inflict the same rigidly on 
 each province. I do not see why it should be so. You 
 may assume that they were willing to do what was just 
 and right in each case with as near an approach as 
 possible. 
 
 il/r. Blalx'e. Very well, T am not unwilling to accept 
 your Lordship's phrase " v ith as near an approach as 
 possible." 
 
 Lord Watson. The confederation of the provinces was 
 the result not of compulsion but of agreement. 
 
 Mr. Blake. Doubtless. 
 
 Lord Watson. It is really a confederation by consent 
 and tliere were no means of com])elling it. Of course 
 the Imperial Legislature might have it in their power, 
 but it certainly never was the intention of the Imperial 
 Legislature to compel it, and certainly the adjustment 
 of the terms were left to the contracting parties. 
 
 Mr. BlalxC. They did in point of I'act compel one pro- 
 vince but they did not intend to and I have no doubt 
 they will never compel another, having regard to the 
 unfortunate circumstances which tnisued. 
 
 I^ord Watson. I think vou must read that Act in order 
 to see what was intended. 
 
 Mr. Blake. Yey, and I was reading it when your 
 
MiVNiTonA ScFrooL Case, 1894. 
 
 UH 
 
 LordHliip inlt'ipoHcd. T waH roadin^- it in order to hIiow 
 tluit the (daiiHc do(>H deal with tho Huhjoot. in that Hpirit. 
 
 Lonl Wdtsoti. 'VU\H contract waH roally made, I Hup- 
 poHc, between tluf Li^giHlutiiros of Canathi and tho now 
 rrovince. 
 
 Mr. Itlahu: 'V\m^ Act oF 1870? 
 
 Lonl Watson. V(iH. 
 
 Mr. llhthc. Well, my Lord, thero waH no Le^'inhitun) 
 of th(; I'rovince at tliat time. Tlio Lo^'islature waH iirst 
 created un(h'r tliin Act. 
 
 fMrtl ]V<its(»i. There Ih a chanf^e in the rolationH 
 hotvvtH^n tlie one and tho otlior. whatovor wuh intondod 
 hy it. 
 
 Mr. lilnke. \ es, that T am not at all ]irepiirod to deny. 
 
 fjord Watsim. It cannot 1)0 said that they iiitemh'd to 
 legislate in the samt^ terms, or tiiey would have legis- 
 lated in the same terms ; they have le^'islated in slightly 
 (litlercnt terms — then; ir.ay not bo much dilference. 
 Von must discover what was intended from the con- 
 struction of that Clause. 
 
 Mr. Jildke. Yos, my Lord ; I am not even asking 
 your Lonh'hi]) 
 
 The Lord Chancellor. You are on that (Clause ? 
 
 Mr. HI ale. Yos, my Lord, I am endeavouring to deal 
 with that Clause. 
 
 Lord Watson. You are asking us to extend that right 
 of Appeal by Sub-section 2 to a class of injuri'^s against 
 the privileges of minorities other than those which jiro 
 provided against by Section 1. That is the lirst ])oint, 
 is it not ? 
 
 Mr. ijlake. Yes, my Lord. [ must ask your Lordship's 
 indulgence to be allowed to state some few considera- 
 tions, wliich I will state as briefly as I can. 
 
 Lord M'^at.son. Certiiinly. You were proceeding to 
 state those considerations, but I am afraid I interrupted 
 you, Mr. IMake. 
 
 Mr. Blake. I welcome, my Lord, all interruptions 
 because I quite recognize that they are the way to elicit 
 the truth and to get at the root of the matter. 1 should be 
 very sorry indeed if your I ordships thought that I 
 objected to interruptions. But what I was trying to do 
 
114 
 
 Manitoba School Case, 1894. 
 
 was to argne that the British North America Act in 
 itself shews in its general features, and also in this 
 clause which I have discussed, that the Manitoha Act 
 also shows in its general features and in this clause — I do 
 not say an absolute determination, but a general dispo- 
 sition — not unnatural but eminently reasonable and 
 eminently calculated to promote the great pm'poses ot 
 the Union — to put the Provinces as near as might be 
 on the same footing with reference to positions created 
 for them by the Act. I do not say there may not be 
 some one case different, because I know of differences in 
 which special circumstances involve special considera- 
 tions. That does not in the slightest degree interfere 
 with, nay, perhaps it rather enhances, the force of my 
 argument as to the general intent, and that general 
 intent is shown even in this section, which attempting 
 to act no doubt in the legislation by the Imperial Parlia- 
 ment at the suggestion of the Provincial Legislatures, 
 yet attempts, with c?ie necessary exception in sub- 
 section 2 of Section 93, to clothe them in general 
 language. It deals with the rights which any persons 
 in any Province have in respect of denominational 
 schools at the Union ; it deals with the case of any 
 Province having a system of separate or denominational 
 schools, and of any Province having no such system ; 
 and it puts them, each such Province, in the same 
 position. Now the Manitoba Act of 1870 makes a 
 general provision. Section 2 of the Manitoba Act 
 applies the British North Amei'ica Act generally. 
 
 J'he Lord CJianccIIor. It is set out at the bottom of 
 page 2 of the Respondent's case before the comparative 
 view of the Sections. [Siqjva, iiaije 12.] 
 
 Mr. Blal-e. Yes, my Lord, 1 refer to that as con- 
 firming this argument. 
 
 Lord Shand. Was not there some argument founded 
 on that section, as being peculiar in the way it is worded, 
 or is it quite clear that there is no question of construc- 
 tion of that section. 
 
 71ie Lord Cha'nCcHor. There is in this way — that it 
 depends on that section how far the Act of 1867 applies; 
 the words are " The provisions of the Ih'itish North 
 
Manitoba School Case, 1894. 
 
 115 
 
 America Act, 1867, shall, except those parts which are 
 in terms made, or by reasonable intendment, may be 
 held to be specially applicable to or only to affect one or 
 ir. ore, but not the whole of the provinces now composing 
 the Dominion, and except so far as the same may be 
 varied by this Act, be applicable to the province of 
 Manitoba." And the question is whether this 22nd 
 Section is to be treated as an alternative scheme to 
 Section 93, and so as varying it, or wheUior you can 
 road into Section 22 so much as would not be incon- 
 sistent with it. 
 
 Mr. Blahe. Yes, my Lord. 
 
 Lord Macnmjhten. Then there is also the exception of 
 those that are specially applicable to one or more pro- 
 vinces, and this reference to separate and dissentient 
 schools seems to be particularly applicable. 
 
 Mr. Blake. I should say that that eliminated Sub- 
 section 1, but I should not say that it eliminated part of 
 Sub-section 1 or 3. 
 
 The Lord Chancellor. Sub-section 3 which is " Where 
 a system of separate or dissentient schools is in any 
 province by law at the Union, or is thereafter by the 
 L'^gislature of the province established" would apply to 
 ^ ow Brunswick and Nova Scotia. 
 
 Lord Macnacjhten. It is specially made applicable by 
 the Act. 
 
 Mr. Blake. Sub-section 3 ? Oh no, my Lord, Sub- 
 section 3 is exhaustive, because it deals with the two 
 possible cases. 
 
 The Tjord Chancel /or. It is only the second part of 
 Sub-section 3 that can be applicable to Manitoba. 
 
 Mr. Blake. Certainly, by your Lordships' finding. 
 
 Ijord ]Vatson. I do not know whether there is any 
 canon of construction to that effect, but I have always 
 had an impression that when there is a question whether 
 certain statutory provisions are to be concurrent with, or 
 are to supersede this previous legislation, it always 
 affords an argument in favour of the intention to super- 
 sede the provisions of the earlier statute, (that is the pro- 
 visions of the British North America Act) when you find 
 that there is an identity between the provisions of the 
 two Acts and they are repeated. 
 
116 
 
 Manitoha School Case, 1894. 
 
 Mr. Blalce. Yes, my Lord, T have said from the be- 
 ginning that my impression 
 
 Lord Watson. If they were merely intended to qualify 
 and alter, for the purposes of Manitoba, the provisions 
 of the British North America Act, why repeal all these ? 
 There is noc the least occasion for it. 
 
 Mr. Blalce. Yes, and I think thai is a very slron*;- 
 argument. My Lord, I have already stated that my 
 opinion is that the difference between the two clauses is 
 that the Manitoba clause is wider than the other, and I 
 am about to endeavour 
 
 Lord Watson. To the extent of the difference they 
 must take effect, whether they supersede the provisions 
 of the other Act, or do not. 
 
 Mr. Blake. I think so, my Lord. I cannot, I think, 
 blot them out of the Statute Book ;dtogotlier. Then as 
 to the Manitoba Clause, as I. have pointed out, the 
 enabling clause is the same as the British North 
 America one, and the first sub-section is the same with 
 the exception of the addition of the words '' or practice." 
 Here I may pause to say that you begin to find varia- 
 tions which show added tenderness for the rights of 
 classes. Where you find a change, it is not a 
 change indicating a determination that the rights of 
 classes in respect of denominational schools shall be 
 less, but that they shall be greater. The reasons for 
 this particular difference which occurs in sub-section 1 
 were suggested in the last case. There had been a little 
 before, the beginning of trouble about the New Bruns- 
 wick law, in which, under administrative or elastic 
 powers, greater latitude was given in Roman Catholic 
 communities within th(3 province to conduct schools more 
 according to their own views, and in which there had 
 been a change, but it was decided that there Avas no law 
 at the Union, and that there was, therefore, no legal objec- 
 tion to the Act under sub-section 1. Then came the Mani- 
 toba local trouble, to which I have alluded in connection 
 with the acquisition of that territory by the Dominion, 
 the rebellion, the sending of a mission to Ottawa, the 
 discussion of terms of Union suggested by a so-called 
 legislative assembly, organized ad 7ioc^ these terms con- 
 
Manitoha School Case, 1894. 
 
 117 
 
 I roii^' 
 
 taining express reference to this question and making 
 (leuiands upon the Dominion, and therefore the (question 
 being- expressly before the consideration of the Lei^is- 
 hiture. Tlien tliere was also the situation of Manitoba, 
 or rather oft hat piece of liupert's Land which became Mani- 
 toba, whicli was absolutely unorganised as a community 
 before the Union, and therefore had not anything in the 
 proper sense of local laws. All those considerations 
 were propounded on the former argument, and are now, 
 without further repetition of them, urged as reasons for 
 the addition of tlie words " or practice, ' giving an acUled 
 right to these whom I represent. Now, that being the 
 policy indicated by sub-section 1, I ask your Lordships 
 to say that it would be a strange thing if that policy of 
 added tenderness, enlarged consideration for the rights 
 of classes with respect to denominational schools, were 
 to be reversed by the alterations nuide in the second 
 sub-section. When we find a clear indication at the 
 beginning of the Clause that an enlargement of this 
 class of rights was the object of the IjCgislature, and 
 when we are told that in the second clause the Legis- 
 lature had departed from that policy and given a less 
 extended set of rights than were given in that class of 
 cases in the older Act, the first sub-section sheds 
 a Hglit, I think, whicli may guide us in the ex- 
 position of the renuiinder, and may lead us to avoid 
 the construction. Now take sub-section 2, " An 
 appeal shall lie to the Governor-General in Council 
 (I will discuss the absence of the prefatory words 
 presently) from any Act or decision of the Legis- 
 lature of the province or of any Provincial authority." 
 Tliere you find the same principle of enlargement. 
 Either it was belicAcd that the British North America 
 Act did not include or it was believed that it was 
 doubtful whether or not it included the Provincial 
 Legislature. It was determined to settle the ({uestion, 
 and to settle it in whose interests ? In the interest of 
 those whom I represent. It was determined to make it 
 abundantly plain and clear that in the case of that 
 province at any rate, whatever doubt might hang over 
 the cases of the other provinces, this Appeal should be 
 
118 
 
 Manitoba School Case, 1894. 
 
 I! I 
 
 4 ! 
 
 i I 
 ■i I 
 
 
 from the Acts of the Lep^islature. If the view of Lord 
 Watson be correct, that the words of the 93rd Section 
 do not inchide an Act of the LogisLaturo, then there was 
 an enlargement of the ]5ritish North America Act in 
 favor of the Province of Manitoba. If it bo only that it 
 was doubtful in tlie minds of the Legislature, then there 
 is a determination to make it clear that the mind of the 
 Legislature was that an Appeal should lie from the Acts 
 of the Manitoba Legislature. So that we find the same 
 intent. 
 
 Lord Watson. I am upon the question whether the 
 words " Provincial authority mean the legislature of the- 
 province." My authority is not worth much I nmst cone 
 less, all that I know is that I have never met with the 
 expression " Provincial authority," as intending to 
 include the Government or Legislature of the country. 
 
 Ml'. Blake. Of two things, one the right 
 
 Lord Watson. You put it alternatively. 
 
 3Ir. Blake. Yes, the Parliament of Canada thought 
 either that it was not included, as your Lordship has 
 suggested, or that it was doubtful whether or not it was 
 included ; and they decided if it was not included, there 
 to include it here, they decided if it Avas doubtful 
 to make it clear it was included, and in either view 
 there was a tenderness of consideration for the rights of 
 the minority, and either an enlargement or a settlement 
 on a sure and certain foundation of those rights and 
 privileges, making them inclusive of a right of appeal 
 against a Legislative Act. Now the Avords " Where in 
 any province a system of separate or dissentient schools 
 exists by law at the Union, or is thereafter established 
 by the Legislature of the province," disappear in this 
 recasting of the clause. Why should they appear ? The 
 original clause was dealing with a number of provinces, 
 and with different cases in those provinces, some of 
 them hypothetical and conjectural cases. It attempts, as 
 draughtsmen too often do, to deal with the vvdiole of them 
 together ; and it makes provisions which enact that the 
 
 of pre-existing 
 
 section is to apply both in the case 
 
 dissentient schools, and in the case of post-Union 
 
 establishments. The prior parts of the British North 
 
Manitoba School Cask, 1894. 
 
 119 
 
 America Section hatl been dealing with some of the 
 Provinces only, and the language was used to make 
 clear that now it was dealing with all, and that it in- 
 cluded the cases of pre-Union separate schools and also 
 of possibly post-Union systems. But here, as I say, 
 they were dealing with one Province only. As the 
 result has shown the pre-Union position of Manitoba 
 must be regarded to have been at tlio least dcmbtful. It 
 luis been judicially decided that there were no rights of 
 this nature upon which sub-section 1 operated. Had 
 they attempted to draw this Section on the lines of sub- 
 section 3 they would have had either to affirm that in 
 Manitoba there were pre-Union rights of some kind or 
 another and to define them, or to speak hypotiietically of 
 the (juestion of pre-Uuion rights. They designed not 
 to do so. They designed to leave that (Question open, 
 and so designing what could they have done? They 
 would have had either to declare that Manitoba had pre- 
 Uuion rights or to say what would be a peculiar thing 
 for the Legislature to say, " In case it be found judicially 
 that Manitoba had by law or practice before the Union 
 some rights, no rights shall be contravened without the 
 cliance of Appeal, and in case any system is established 
 afterwards those rights shall not be contravened without 
 a like chance." But by the simple omission of both 
 these conditions they leave an absolute generality for 
 the application of the Section. Now what is the Appeal 
 from ? It is from " Any act or decision of the Legis- 
 lature of the province or any Provincial authority." 
 Take sub-section 1. It speaks of any right or privilege 
 which they have by law or practice at the 
 Union. Take sub-section 2. It is an appeal which 
 lies from " any act or decision of the Legislature 
 of the Province, or any Provincial authority," and there- 
 fore you find a limitation in Sub-section 1 which does 
 not exist in Sub-section 2. The word " any " is general, 
 and it is not limited by any ([uestion of time. Then 
 there is another distinction : In the Manitoba Clause, as 
 has been already pohited out, the question is not limited 
 by the existence of separate or dissentient schools at all. 
 The prefatory words being omitted, the right is general 
 
120 
 
 Manitoba School Ca><e, 1894. 
 
 without suggesting the question of separate or dissentient 
 schools. The right is absohitc, therefore, to appeal from 
 any act of the Legislature, or from the decision of any 
 Provincial authority affecting any right or privilege 
 (which must be a right or privilege created by or under 
 the operation of the provincial legislation) of the Protes- 
 tant or Roman Catholic minority. It touches therefore 
 any right or privilege of the Protestant or Roman 
 Catholic n\inority created by the Legislature. 
 
 The Lord Chancellor. It really strikes me that the 
 whole of this case will turn on two (piestions depending 
 on this second sub-section. First, is sub-section 2 
 meant to do something more than afford a remedy in 
 cases within sub-section 1 ? Secondly, if it is, does it 
 apply a remedy in the case of rights accpiired by post- 
 Union legislation ? 
 
 Lord WaUon. I think that is the (piestion. 
 
 The Lord Chancellor. I think those will turn out 
 really to be the only two (piestions in the case. 
 
 Lord Watson. I should say, those two points being 
 decided in your favour, even Mr. Haldane would find 
 himself hampered in his argument. 
 
 Mr. Haldane. Subject to the (question whether there 
 has been any question of interfering with the right 
 and privilege of the minority. That will be another 
 question. 
 
 Lord Watson. I do not know how that question is one 
 for us. 
 
 Mr. Haldane. We do not desire to make any admis- 
 sion on that point. 
 
 Lord Shand. Of course it is a condition of the clause 
 coming into operation that there shall have been such a 
 right or privilege interfered with. 
 
 Mr. Haldane. That is what I moan. 
 
 Lord Watson. I should say that a privilege established 
 by post-Union legislation would constitute such a 
 privilege. 
 
 The Lord Chancellor. It will not be for us to consider 
 the extent to which the decision operates. 
 
 Mr. Haldane. I should not ask your Lordships to do 
 that. 
 
Manitoba School Ca8E, 1894. 
 
 121 
 
 Lord Watson. I should not like to say that it is a pri- 
 viU'^'e inturi'ercd with. 
 
 }fv. TIaldane. All we say is that your Lonlships must 
 look at the kind of Act which is complained ol", in order 
 to see whether the conditions of the Appeal to the 
 (lOvernor-Gcneral have arisen. 
 
 Lord Watson. I am prepared to advise the Governor- 
 General, and decide on Iho m(>aning ol'this clause, but I 
 am not prepared to relieve him of the duty of considering 
 how I'fir he ought to interfere. 
 
 Mr. Ualdane. That may be. 
 
 Lord Watson. That would be trenching upon very 
 dangerous groimd. However, we will see about that 
 by-and-bye. We must decide these two points first, or 
 the other will never arise. 
 
 Mr. Blake. My Lords, I was endeavouring to find 
 what this Appeal was, and I was pointing out to your 
 Lordships that it was an appi'al from " Any act ot the 
 JjCgislature of the province " or " any decision of any 
 Provincial authority, affecting any right or privilege of 
 the Protestant or Roman Catholic minority of the 
 Queen's subjects in relation to education." I have 
 stated already to your Lordships in connection, it is 
 true, with section 93, but expressly stating that the 
 observations apply to section 22, the reasoning which, 
 as it seems to me, and as I understood, with the concur- 
 rence of some of your Lordships, render it impossible to 
 say that the appeal provided for in sub-section 2 is a 
 sanction for sub-section 1. I do not propose to trouble 
 your Lordship with even the briefest statement by way 
 of repetition of that argument, but all the differences 
 which I pointed out in that connection in the Manitoba 
 Act exist here and all the reasons, and the choice there- 
 fore that you have is between a harmonious construc- 
 tion 
 
 Jjord Watson. What occurs to me very mr.ch on one 
 point upon this (which is rather in your favour than other- 
 wise) is that if upon taking the North British America 
 Act, there seems to be in sub-section 1 an absolute 
 prohibition of certain legislation any Act would be null 
 and ultra vires. No doubt Sub-section 3 gives no remedy 
 
I 
 
 < i 
 
 1 I 
 
 122 
 
 Manitoba School Case. 1894. 
 
 against it unless it bo an Act or decision of a Provincial 
 authority. If it is not referred to in that sense, then the 
 only remedy is to have it declared nidi. In the other it 
 is not null. It would not be null under the Manitoba 
 Act. It would only bo subject to appeal, and in the 
 other i)r()vinces it would be a nullity. 
 
 The Lord Chancel/or. You would have to go for the 
 purpose of getting rid of that which was not within their 
 legislative power in the last resort if they would not get 
 rid of it by themselves by legislation, to the rarliament 
 of Cauada to legislate upon it. 
 
 Mr. Blale. It is all absolutelv futile, because it is not 
 there. It is non-existent. It is on paper, but that is all. 
 
 [Adjommed for a short time]. 
 
 Mr. Blake. Now, my Lords, I desire to refer your 
 Lordships in connection with this particular branch of 
 my argument to the judgment of your Lordships at page 
 153, line 40 :— 
 
 " Sub-sections i, 2, and 3 of Section 22 of the Manitoba Act, 1870, 
 differ but slightly from the corresponding sub-sections of Section 93 
 of the British North America Act, 1867. The only important 
 difference is that in the Manitoba Act in sub-section i, the words 
 ' by law ' are followed by the words ' or practice,' which do not occur 
 in the corresponding passage in the British North America Act." 
 
 Those words were, no doubt, introduced to meet 
 the special case of a country which had not as yet 
 enjoyed the security of laws properly so called. 
 It seems to me that that observation must imply 
 the view then taken by your Lordships' Board 
 that the British North America Act embraces in 
 the words " provincial authority " the Legislature, 
 because, certainly, if your Lordships held otherwise, it 
 would be a very important difference ; and yet your 
 Lordships refci to the words " or practice " as the only 
 important difference. It seems to me that those obser- 
 vations iuiply that your Lordships held that the 2nd 
 sub-Section of Section 22 did deal with post Union 
 cases inasmuch as I have shown, as I submit that the 
 3rd sub-section of Section 93 does deal with such cases, 
 and it would be a very important difference indeed if 
 
Manitoba Sciio,)L Cahk, 1894. 
 
 123 
 
 I meet 
 
 as yet 
 
 called. 
 
 imply 
 
 Board 
 
 legiwlatioii 
 
 iho 2nd 8ub-Sccti()n of the Manitoba Act had not dealt 
 with them. 
 
 Lord Watson. It comes to this, that it would rather 
 indicate that wh(;ther an Appeal is taken or not, 
 you may iiave procedure that follows 
 tluit violates the provisions of the sub-section 1 
 
 Mr. Blahc. Unipiestionably the power to legislate is 
 restricted. 
 
 Lord ]Vatnon. We did not decide whether you could 
 appeal against it. 
 
 Mr, Blake. I have read what your Lordships havo 
 said as to the difference between the two Acts which 
 your Lordships limited to the introduction of the words 
 " or practice " as being the only important ditference. 
 
 Lord Macnaghten. For the purpose that we were then 
 considering. 
 
 Mr. Blake. That may be, my Lord. 
 
 I now advert to another firgument which has been 
 pressed as an aid to the adverse construction, and as 
 properly inducing the Court to limit the construction 
 which wo desire to press on your Lordships, the argu- 
 ment namely, that it is an extraordinary thing that an 
 Act should be passed interfering with the power of a 
 legislature to repeal or amend anything which it is given 
 a power to enact, that is an argument that has been 
 pressed all through, and which was adverted to yester- 
 day by one of your Lordships. On this subject I want 
 to submit to your Lordships that the Provincial Legisla- 
 ture have no absolute and conclusive power of making 
 effective legisbcion on any subject, because any law may 
 be disallowed under the general provisions of the British 
 North America Act by the Governor-in-Council, and 
 may be thus nullified ; and of course therefore there is 
 no more conclusive power to repeal or amend than there 
 was originally to enact. 
 
 Of course the whole of this argument has as its basis 
 the suggestion that it is almost impossible to conceive 
 that the Provincial Legislature should be authorised to 
 make laws and not have the power of repealing. 
 
 Lord Watson. Sub-section 2 un(][uestionably appears 
 to contemplate an Appeal against a complete Act, not 
 merely an Act that is in its inception. 
 
124 
 
 Manitoba Scjiool Case, 1894. 
 
 I! 
 
 Mr. Blake. Certainly not. 
 
 The Lord Chancellor. You uro trying to UK^ot tli(^ 
 objection that it could not have cont(Mn|)lat(!(l an Ajmoal 
 in tlio caHO of an Act which merely repealed or niodilicd 
 an Act already passed. 
 
 Mr. Blnkc. Yes. The theory present (3d against me is 
 this ; you acknowledge that the JjOgislature liad powi^r 
 to pass the primary Act ; the Legislature being given 
 power to pass an Act, is it not absurd <o say it should 
 not have power to rt'peal, amend, or modify tlu^ Act it is 
 empowered to pass. That is the general proposition. I 
 am desirous of meeting, by several considerations, that 
 argument. 
 
 Lord Watson. Tlie Governor was unquestionably given 
 some power unless he is to be impotent. It is clear 
 when you read the whole provisions of the section that 
 the Governor has power in some cases. A (juestion may 
 arise as to what those cases are, but, when the Governor 
 is in the position to exercise the power given him, on 
 appeal as against an Act by sub-section 2, he can 
 qualify the Act of the Legislature, and, if they will not 
 pr.ss an Act amending it in conformity with his sugges- 
 tion on appeal, it is in his power to apply to the 
 Canadian Government to compel them to do it, or do it 
 for them. 
 
 Mr. Blake. To the Canadian Parliament to pass them- 
 selves a remedial law. I hold that in any written consti- 
 tution it is the frame of the writing that 
 
 Lord Watson. It is a power given undoubtedly to 
 amend and revise. 
 
 Mr. Blake. Perhaps your Lordships will think it well 
 that I should await the argument on the other side 
 before troubling your Lordships with any further argu- 
 ment on this point. 
 
 Then, my Lords, I pass to the last portion of my duty, 
 namely, the reference to the Judgments in the case. At 
 page 165 is the Judgment of the Chief Justice. After 
 staling the questions as I read them a long while ago 
 he puts them in a concise form, and says : — 
 
 " To put it in a concise form, the questions which we are called 
 upon to answer are whether an appeal lies to the Governor-General 
 
Manitoba School Cask, 1894. 
 
 125 
 
 in Council, either under the British North America Act, 1867, or 
 under the Dominion Act estabUshing the province of Manitoba 
 against an Act or Acts of the Legislature of Manitoba passed in iHtjo, 
 whereby certain Acts or parts of Acts of the same [legislature pre- 
 viously passed, which had conferred certain rights on the Roman 
 Catholic minority in Manitoba in respect of separate or denomina- 
 tional schools, were repealed." Then he says, "'i'he proper answers 
 to be given to the questions propounded depend principally on the 
 meaning to be attached to the words 'any right or privilege of the 
 Protestant or Roman Catholic minority of the Queen's subjects in 
 relation to education ' in sub-section 2 of section 22 of the Manitoba 
 Act. Do these words include rights and privileges in relation to 
 education which did not exist at the Union, but (in the words of 
 section 93, sub-section 3, of the British North America Act) have 
 been thereafter ' established by the Legislature of the province,' or is 
 the right or privilege mentioned in sub-section 2 of Section 22 of the 
 Manitoba Act the same right or privilege which is previously referred 
 to in sub-Section i of Section 22 of the Manitoba Act, viz., one which 
 any class of persons had by law or practice in the province at the 
 Union, or a right or privilege other than one which the Legislature 
 of Manitoba itself created ? " 
 
 Then his Lordship states sub-section 3 of section 93 
 of the British North America Act, and says, 
 
 " It is important to contrast these two clauses of the Acts in 
 question, inasmuch as there is intrinsic evidence in the later Act 
 that it was generally modelled on the Imperial Statute, the original 
 Confederation Act, and the divergence in the language of the two 
 Statutes is therefore significant of an intention to make some change 
 as regards Manitoba by the provisions of the later Act. It will be 
 observed that the British North America Act, Section 93, sub- 
 Section 3, contains the words ' or is thereafter established by the 
 Legislature of the province ' which words are entirely omitted in the 
 corresponding section (Section 22, sub-Section 2) of the Manitoba 
 Act." 
 
 Yes, but also are omitted the words referring 
 to the existence of a pre-Union system of separate 
 schools. His Lordship refers to the one without 
 the other. The omission of both neutralises the 
 
126 
 
 Manitoha School Cask, 1894. 
 
 offbct to bo (lorivod IVoni I ho oininnioii of ono 
 only. 
 
 if 
 
 " Apaiti, the same sub-section of the Manitoba Act Rives a right of 
 appeal to the (iovernor-Cieneral in Council from the Legislature of 
 the province as well as from any provincial authority, whilst by the 
 Ikitish North America Act, the riyht of appeal to the (iovernor- 
 (ieneral is only to be from the Act or tlecision of a provincial 
 authority. I can refer this difference of e.xpression of the two Acts 
 to nothing but to a deliberate intention to make some change in the 
 operation of the respective clauses. I do not see why there should 
 have been any departure in the Manitoba Act from the language of 
 the British North America Act unless it was intended that the mean- 
 ing should be diflurent." 
 
 The Lord Chancellor. There "ih a possiblo reason — to 
 mako it certain that it did inohido. 
 
 Mr. lilale. Certainly. That is my contention ; lliat 
 tliuy thought it waa doubtful, and they wanled to make 
 it clear. 
 
 !■ I 
 
 '' On the one hand it may well be urged that there was no reason 
 why the provinces admitted to confederation should have been 
 treated differenlly, why a different rule should prevail as regards 
 Manitoba from that which by express words applied to the other 
 provinces. On the other hand, there is, it seems to me, much force 
 in the consideration that, whilst it was reasonable that the organic 
 law should preserve vested rights existing at the Union from spolia- 
 tion or interference, yet every , .^sumption must be made in favour 
 of the constitutional right ff a legislative body to repeal the laws 
 which it has itself enacted." 
 
 I may say that his Lordship, as your Lordsldj) will 
 find, lays much stress on that i)roposition, the contrary 
 of which I was about to elaborate a moment ago. 
 
 
 •' No doubt this right may be controlled by a written constitution 
 which confers legislative powers, and which may restrict those powers, 
 and make them subject to any condition which the constituent legisla- 
 tors may think fit to impose. Anotable instance of thisis,asniy brother 
 King has pointed out, afforded by the Constitution of che United 
 States according to the construction which the Supreme Court, in 
 the well-known Dartmouth College case, put upon the provision 
 prohibiting State Legislatures from passing laws impairing the 
 
Manitoba School Cark, 1894. 
 
 127 
 
 ohliffatioM of contracts. It was there held, with a result which has been 
 fouiul most incotneiiieiit. that a Legislature which had created a 
 private Corporation could not repeal its own enactment granting the 
 franchise, the reason assigned being that the grant of the right of 
 franchise of a Corporation was a contract. This has in practice 
 been got over by inserting in such Acts an express reservation of the 
 right of the Legislature to repeal its own Act. Hut as it is a pn'mn 
 fiitir presumption that every Legislative enactment is subject to repeal 
 by the same body which enacts it, every statute may be saiil to con- 
 tain an iinplieil provision that it may be revoked by the authority 
 which has passeil it unless the right of repeal is taken away by the 
 fundamental law, the overriding constitution which has created 
 the legislature itself." 
 
 The Lord Chancellor. You do not dinputo that. You 
 do not sav tliat tliu Lei>'iHlatnro of Manitoba could not 
 repeal the Act. 
 
 Mr. lilnkc. No, my Lord. 
 
 The Lord ( 'hinircflor. Only that when it haw repealed 
 there iH an Appeal Ircm its conduct or act in repealing 
 I he Act. 
 
 Mr. Ji/ake. Yes. 
 
 The Lord Chancellor. That is all. 
 
 Mr. Jilah'c. Yes. It is possible that the repeal may bo 
 made in the end more or less inefficient by virtue of this 
 Appeal and the remedial legislation upon it, but thoy 
 can repeal. I had a great number of considerations 
 which, out of respect to this Judgment, I was prepared 
 to address to your Lordships in support of my propo- 
 sition that there is no such strong presumption with 
 reference to the Provinces, and particularly with refer- 
 ence to Manitoba as to this Act as his Lordship suggests 
 here. 
 
 Lord Watmn. T do not think this ilhistration throws 
 any light whatever on it. It results from the funda- 
 mental law of this constitution that a statute interfering 
 with the particular rights must be passed by the B'ederal 
 liCgislature. This seems to be a suggestion for evading 
 it. 
 
128 
 
 MANi'n^BA School Case, 1894. 
 
 }fr. lilaJx'c. T do not tliink llic Federal Lt'ii'it^laturc 
 
 woiilil luivo any sucli powor. i\\o (locision loll Imoho 
 clmrtors niiloiu'hiddo iind iinattackablo allos'-otlu'r hvauv 
 lo^'islation. Oiico von iMul)ra('od a charter ii,Tanled by 
 llie liei>'lslalur(> wilhiii Ihe deliiiilioii ol' a coiilracl, yon 
 applied the j)rineiple ol tlu> elause as to iinpairini;' the 
 ol)lii;'ation of contracts, and nobody lionld overs(3t it. 
 \\\\\ they L!,'ot ronnd i( as peoj)le will o-d round thing's 
 they cannot «;'et over. Al'ter hall' a century or so tlu^y 
 found a way round. Then he says. 
 
 " The point is a new one, but having regard to the strength and 
 universality ot the presumption that every legislative body has 
 power to repeal its own laws, and that this power is almost indis- 
 pensable to the useful exercise ot" legislative authority since a great 
 deal of legislation is of necessitv tentative and experimental, wt»uld 
 it be arbitrary or unreasonable or altogether unsii]iported by analogy 
 {o hold as a canon of constitutional construction that such an 
 inherent right tt) repeal its own acts, cannot be ileemeil to be withheld 
 from a legislative body having its origin in a written constitution un- 
 less the constitution itself by express wt)rds takes away the right." 
 
 And yet tliut very illustration lu» has i>'iven was one of a 
 rio'ht taken away not by exprc^ss words, but taken ;i\vay 
 by a construction, which may be perhaps strained con- 
 struction which embraced in the won! ''contract' a 
 Legislative Act, namely, a charter. 
 
 Lonl ]Vatso)i. That really is a (piestiof whetlu'r a cer- 
 tain device is a constitutional way ol' ^'citing' o\er a 
 constitutional dilHcidty. 'IMiat is ]U)t thi> sort of (pu'stion 
 we havi^ to dettl with here at all. I do not know how it 
 can be reo-arded as a strict constitutional ridt>. 
 
 Mv. lilnke. This wtis a very i>asy way ol' over-riding 
 all this dilliculty. 
 
 Lord Watxon. 1 thitdv it would ri><iuir(> som(> discnssion 
 before that point is settled, and I do not think wo reiiuiro 
 to settle it now. 
 
 Mr. Ilahhinc. We shall not cite the Dartmouth College 
 Case. 
 
 Mr. Blake. No, because it woidd be (piitt> against yon. 
 
 Fjord Watson. No device of that sort rcipiircs to be 
 rosorted to here. 
 
ManiT(iha School Cask, 1804. 
 
 129 
 
 'I'Jio Lonl ( 'Itanrr/lor. With all (liiloroiico I do not hoo 
 ill ])n'S(>iit the ii[)}>lioabilil y of this at all. Tlio (|uestion 
 at issue was not the powor of the Manitoba li(>i>-islaturo 
 lo ro[)oal all jlioso Acts. It is assumcHl that it lias tl 
 
 10 
 
 )()W('r, 
 
 Mr. lil'tlcr. Vcs. 
 
 The L())(l (^lianrcllor. \\\\\ tho niu>stion is whether 
 when by repeal it has altered tlu^ position of certain 
 persons who had rig'hts under the previous Aer, there 
 uiav be an apj)eal to the (loviM'nor in (-ouneil on tho 
 liTound that that alVeels in a wav it oui'-ht not to allbct 
 llu> rii;'hts of the minority. 
 
 Mr. lilah'o. Yes. 
 
 Lord Sh'iwl. That is subject to this observation, that 
 iiuder sub-section '^ of the ^fanitoba Act, vou cannot s; 
 
 ly 
 
 there is an absolute ri_«;"ht to appeal, because it says : " In 
 c;ise any such pi'ovincial law as from time to time seems 
 lo the (Joveriior-( Jcneral in (!!ouncil rcipiisiti^ for the duo 
 (>xecution of the provisions ol" tiiis section is not mad(>." 
 
 Mr, lllah'i'. That is afterwards. 
 
 Lord SlntnL lie can practically say the rcjx^al is 
 
 bad, 
 
 o 
 
 r in cas(> anv decision of the ( io\ ('ruor-lJcncral 
 
 in (Council on any ap[)eal under this section is not <luly 
 executed by the j)rop(n* provincial authority in that be- 
 
 lli, I lien and m (n'c>rv such easi 
 
 am 
 
 1 as f 
 
 ir onlv as tlio 
 
 circnmstam'(>s in such case rcipiin^ tiie Parliament of 
 Canada may niaki^ reiiunlial laws." 
 
 Tin' Lord Chdnccllor, lie cannot say the n-pcal is 
 had; tho repeal stands, lie can no doubt say that you 
 
 ouiiiit no! Iw !i 
 
 cn^ite 
 
 th 
 
 stat(> oi 
 
 tnin 
 
 U's vou have 
 
 created by the Act o[ re[HMlin^' ; but in any case, all he 
 can do as reg'ards any .\ct, whethei a rcpcalini;" Act, or 
 any otlu>r Act, is to say il is an interference with the 
 orii;-inal Act of rarliamcnt of tlu> Legislature of Mani- 
 toha, and lu> can sav this slate of ilriiiii,';' will no) do. 
 
 ai 
 
 id unless vou bv leii'islation will do what I think 
 
 no 
 
 ccssary to renu'dy it, the I'ai'liamc" : of ( 'anada then has 
 the jurisdiction to It\j4'islat(^ within your province, 
 
 Mr. lihdxi'. Tf it chooses. 
 
 The Lord Chancellor. It st^cnis tome no strongvr to 
 introduce such a power to control a static of things 
 
130 
 
 Manitoba School Case, 1894. 
 
 created by an ordinary Act, than to control a state of 
 things which, ex-hypothesi^ it can do created by an 
 original Act. I say ex-hipothesi, that is if the second 
 sub-section is not merely a mode of enforcing what is 
 contained in the first sub-section. 
 
 • Mr. Blake. Of course, tliero are all sorts of limitations 
 of the power of the Legislature. Sub-section 1 is a 
 limitation, and when you provide this power of enact- 
 ing, you may limit the power of repeal. That was 
 not done here. The repe.'d itself may be modified 
 under certain special conditions, and to a certain 
 limited extent. Then his Lordship goes on, keep- 
 ing in constant view this canon of construction 
 that he has set up, that you must find in express terms 
 some restriction of the power of the Legislature. 
 
 " Then keeping the '■"le of construction just adverted to in view, is 
 there anything in the lerms of sub-section 2 of Section 22 of the 
 Manitob;; Act by which the right of appeal is enlarged, and an 
 appeal from the Legislature is expressly added to that from any 
 provincial authority, whilst in the British North America Act, Section 
 93, sub-section 3, the appeal is confined to one from a provincial 
 authority only, which expressly or necessarily implies that it was the 
 intention of those who framed the constitution of Manitoba 
 to impose upon its Legislature any disability to exercise the ordinary 
 powers of a Legislature to repeal its own enactments." 
 
 All the phrasing of the judgment seems to me to give 
 an extreme and incorrect view of the extent to which it 
 is necessary to go, and to which we ask the Court to 
 go. 
 
 •' I cannot see that it does, and I will endeavour to demonstrate 
 the correctness of this opinion. It might well have been con- 
 sidered by the Parliament of the Dominion in passing the Manitoba 
 Act that the words ' any provincial authority ' did not include 
 the Legislature. Then, assuming it to have been intended to 
 conserve all vested rights — ' rights or privileges, existing by law or 
 practice at the time of the Union,' and to exclude or subject 
 to federal control even legislative interference with such pre-existent 
 rights or privileges, this prohibition or control, would be provided 
 
Manitoba School Case, 1894. 
 
 131 
 
 for by making any act or decision of the Legislature so interfering 
 the subject of appeal to the Governor-General in Council." 
 
 So that your Lordships see the application he boldly 
 makes in order to avoid a violation of this newly- 
 created canon of construction is a violation of the 
 first sub-section. 
 
 Lord Watson. He puts this, that the intention of the 
 Dominion Parliament was to extend the right of appeal 
 to Acts of the Legislature. He was evidently of 
 opinion in the outset of his Judgment that in the 
 British North America Act the right of appeal was or^y 
 as to the provincial authority. 
 
 The Lord Chancellor. It has this curious effect that, 
 if he is right, and if from the wording of section 93, 
 sub-sectio7i 3, there is no appeal to the Governor from a 
 provincial Act upon the people's rights being affected by 
 a provincial Act, then, in the case of any of the pro- 
 vinces incorporated under the British North America 
 Act, and subject to its provisions, the only remedy in 
 case of a breach of the first sub-section is to treat the 
 law as null, because, if the third sub-section does not 
 apply to the Acts of the Legislature, then there is 
 nothing for it but to say that the law is null. 
 
 Mr. Blake. No doubt. 
 
 The Lord Chancellor. Then you would have this 
 curious result, that exactly the same provision in the 
 same terms relating to the subject matter dealt with by 
 the first sub-section is found in the Manitoba Act, which 
 ex hupothed could make the legislation null, which is the 
 only protection, and which is considered a sufficient pro- 
 tection in the Jh'itish North America Act, and you add 
 in the case of Manitoba a provision for an appeal to the 
 Governor with all the machinery which was considered 
 necessary in the case of the other provinces. 
 
 Mr. Blahe. Yes. 
 
 Lord Watson. That is, that in Manitoba alone has the 
 Governor the power to take action which can in any 
 way qualify or alter an Act passed by the Legislature. 
 The learned Judge seems to distinctly express an 
 opinion that by the earlier Act the right of appeal to the 
 Governor-General is only to be from the Act of the pro- 
 vincial authority, and then he says he can refer this 
 
132 
 
 Manitoba School Cahe, 1894. 
 
 difference of expression in the two Acts to nothing but ii 
 deliberate intention to make some change in the opera- 
 tion of the respective clauses. There cannot be any 
 change in the operation of the clauses unless the Mani- 
 toba x^ct brings in the Governor-Gonc^ral, wlicroas Ik^ 
 was not before included in the words " provincial Legis- 
 lature " at all. 
 
 The Lord Chancellor. If in the British North America 
 Act an Act of the Legislature was not included, you 
 would have this curious state of things. By sub- 
 section 2 " all the powers or jDrivileges and duties at the 
 Union by law conferred and imposed in Upper Canada" 
 are extended to dissentient schools in Quebec. That 
 was a new right then acquired. 
 
 Mr. Blake. Yes. 
 
 The Lord Chancellor. It was not a right existing at 
 the Union because it was a right given by that. 
 
 Mr. Blake. Yes. 
 
 The Lord Chancellor. As far as I can see according to 
 the contention that "Act" does not include an Act of the 
 Legislature, there would have been nothing to ])revent 
 an Act taking away those rights from the rrotestantsof 
 Quebec, and then inasmuch as it was done by an Act of 
 the Legislature and was not an act or decision of a 
 Provincial Authority there would have been no Appeal 
 to the Governor-General. What remedy would there 
 have been ? 
 
 Mr. Blake. May I venture to suggest to your Lordship 
 that inasmuch as by that sub-section those Acts were 
 extended they were Acts at the time of the Union? 
 They were not pro-Union. 
 
 The Lord Chancellor. '"At the Union " would include 
 what was then obtained ? 
 
 Mr. Blake. Yes, at the moment of the Union they 
 were applied. 
 
 2'he Lord Chancellor. Perhaps so. 
 
 Mr. Jilake. 1 should say that that was the intention, 
 and I rather think your Lordships would come to the 
 conclusion that the intention did not fail. The palpable 
 and plain object was to give those rights and to put 
 those rights under the same protection as the riglits 
 under the analagous clauses in the Province of Ontario. 
 
Manitoba School Case, 1894. 
 
 133 
 
 The Lord Chancellor. It ir? a curious thing '• All the 
 powc^rs privileges and duties at the Union by law con- 
 ferred and imposed in Upper Canada," and so on shall 
 be, and the same are hereby, extended. 
 
 JAr. 7i/«/.'e. " Are hereby." 
 
 The Lord Chancellor. It treats " at the Union " as a 
 time prior to "hereby." 
 
 Mr. Blalx'c. It could not be, because the Union only 
 took effect by the terms of the Act some months later on 
 a proclamation. 
 
 Ihe L^ord Chayicellor. That may carry it out. They 
 would if comprised in this be extended at the Union. 
 
 Mr. Blake. 
 
 If, however, the words of Section 93 Sub-section 3 : "Or is 
 thereafter established by the Legislature," had been repeated 
 in Section 22 the Legislature would have been in express and 
 unequivocal terms restrained from repealing laws of the kind in 
 question which they had themselves enacted, except upon the con- 
 dition of a right to appeal to the Governor-General. 
 
 This is a slight limitation of the too-wide phrase 
 used by his Lordship in the former part of his judgment. 
 
 If it was intended not to do this but only to restrain the Legisla- 
 ture of Manitoba from interfering with " rights and privileges " of 
 the kind in question existing at the Union, this end would have 
 been attained by just omitting altogether from the clause the words 
 " or shall have been thereafter established by the Legislature of the 
 .province.'' This was done. 
 
 I have already made the observation that occurs 
 to me on this, namely, that the British North America 
 Act contains provisions as to both pre-Union and post 
 Union rights. Both are omitted ; but his Lordship seems 
 to give potency ronlyto the omission of the latter words. 
 
 " Next it is clear that in interpreting the Manitoba Act the words 
 any provincial authority do not include the Legislature for that 
 expression is there used as an alternative to the Legislature of the 
 province." 
 
 I quite admit that that is true. Taking the Manitoba 
 Act by itself, you have the two expressions, and 
 unquestionably " any provincial authority " does not 
 include the Legislature, because it is " or " one or 
 the other. 
 
134 
 
 Manitoba School Case, 1894. 
 
 H 
 
 ''It is not to be presumed that Manitoba was intended to be 
 admitted to the Union upon any different terms from the other pro- 
 vinces, or with rights of any greater or lesser degree than the other 
 provinces." 
 
 Lord Watson. Ho has just demon si rated ytni vvoro to 
 bo adniitted on terms somowliat different. 
 
 Mr. Blake. But ho says it is not to b(^ presumed. I 
 suppose his Lordship was putting forvv'ard the sug>jjes- 
 tion I made some time ago as to a general sort oi' 
 presumption. 
 
 Lord ]\^atson. What is tlie use of speculating about 
 presumptions. 
 
 Afr. B/ake. 
 
 " Some difference may have been inevitable owing to the differences 
 in the pre-existing conditions of the several provinces. It would be 
 reasonable to attribute any difference in the terms of Union, and in 
 the rights of the province, as far as possible to this and by interpreta- 
 tion to confine any variation in legislative powers and other matters 
 to such requirements as were rendered necessary by the circumstances 
 and condition of Manitoba at the time of Union." 
 
 Lord Watson. He said they would not presumably 
 make any alteration in the different provinces except to 
 introduce such alterations as were suitable in the case of 
 each, or were necessary to provide for pre-existing con- 
 ditions within the province which might not be the same 
 in all. That is his argument, and therefore 1 suppose he 
 goes on to argue against you that presumably they did not 
 intend to legislate at all as to any state of things subse- 
 quently created by Parliament. 
 
 Mr. Blal'c. Your Lordship will find later on he adopts 
 a construction which altogether contradicts this premiss, 
 that he adopts a varying construction, a construction 
 which gives an additional variation instead of a har- 
 monizing construction. 
 
 " Now let us see what would be the effect of the construction 
 which 1 have suggested of both Acts — the British North America 
 Act, Section 93, and the Manitoba Act, Section 22, in their practical 
 application to the different provinces as regards the right of pro- 
 vmcial legislatures tu interfere with separate or denominational 
 schools to the prejudice of a Koman Catholic or Protestant minority. 
 
Manitoba School Case, 1894. 
 
 135 
 
 First then, let us consider the cases of Ontario and Quebec, the 
 two provinces which had by law denominational schools at the 
 Union. In these provinces any law passed by a provincial legislature 
 impairing any right of privilege in respect of such denominational 
 schools, would by force of the prohibition contained in sub-Section 3 
 of Section 93 of the British North America Act, be ultra vires of 
 the legislature and of no constitutional validity. 
 
 Should the legislatures of these provinces (Ontario and Quebec) after 
 confederation have conferred increased rights or privileges in relation 
 to education or minorities, I see nothing to hinder them from repeal- 
 ing such Acts to the extent of doing away with the additional rights 
 and privileges so conferred by their own legislation without being 
 subject to any condition of appeal to federal authority." 
 
 I have already combatted that proposition. 
 
 Lord Wataon. That is (juite clear from the construction 
 the loarnod Judge put before on Section 3. 
 
 Mr. Blake. I have already combatted the accuracy of 
 the proposition, because I have pointed out that Section 
 3 is quite wide enough to include the case of prior 
 privileges conferred on Ontario and Quebec. 
 
 Lord WatfiO)i. Has the learned Judge not made a mis- 
 take where he says " In these provinces any law passed 
 by a Provincial Legislature impairing any right or pri- 
 vilege in respect of such denominational schools would 
 by force of the prohibition contained in sub-section 3 of 
 Section 93, &c." I think that must be a mistake and 
 must mean sub-section 2. 
 
 Mr. Blake. No, my Lord. 
 
 Lord Watson. I doubt it. 
 
 Mr. Blake. I think it must be sub-section 1. 
 
 The Lord Chancellor. He has referred to the first part 
 of sub-section 3, which deals with existing denomi- 
 national schools. 
 
 Mr. Blake. Well, but then, my Lord, he would not 
 say that, it was made ultra vircs^ and of no constitutional 
 validity by means of sub-section 3 ; sub-section 3 says 
 nothing as to ultra vires. 
 
 The Lord Chancellor. It must be sub-section 1. 
 
136 
 
 Manitoba School Cask, 1894. 
 
 Mr. Blake. Yes, it is a misprint lor 1. Then I liiivu 
 pointed out to your Jjt)r(lsliips with regard to that 
 paragrapli boh)\v lino 40 (coninioncing " Slioukl the 
 Logishituros, &c.") tL it increasiul rights or privih'gos 
 conferred by post-Union logishition in Ontario and 
 Quebec on educational minorities nuiy be well protected 
 and are protected to the extent of the right of an appeal 
 under sub-section 3 of the Jiritish North America Act. 
 
 " What is meant by the term provincial authority ? The ParHa- 
 ment of the Dominion, as shewn by the Manitoba Act, hold that it 
 does not include the legislature," (his Lordship reflects the light of 
 that candle on the Imperial Legislation) — " for in sub-Section 2 of 
 Section 22, they use it as an alternative expression and so expressly 
 distinguish it from the Legislature. It is true the British North 
 America Act did not emanate from the Dominion Parliament, but 
 nevertheless the construction which that Parliament has put on the 
 British North America Act, if not binding on judicial interpreters, 
 is at least entitled to the highest respect and consideration. Secondly, 
 the words '' provincial authority " are not apt words to describe the 
 Legislature, and in order that a provincial Legislature should be 
 subject to an appeal, when it merely attempts to recall its own Acts, 
 the terms vised ehould be apt, clear, and unambiguous. To return 
 then to the case of Ontario and Quebec, should any ' provincial 
 authority ' not including in these words the Legislature, but inter- 
 preting the expression as restricted to administrative authorities 
 (without at present going so far as to say it included Courts of Justice) 
 by any Act or decision affect any right or privilege, whether derived 
 under a law or practice existing at the time of confederation, or con- 
 ferred by a provincial Statute since the Union still remaining unre- 
 pealed and in force, that would be subject to an appeal to the 
 Governor-General." 
 
 So that he agrees that post-Union action is subject to 
 appeal, but he says that it must not be post-Union legis- 
 lation, though it may be post-Union action under a 
 provincial Statute since the Union. 
 
 Lord Watson. Yes, but then he introduces the impor- 
 tant qualification on your proposition in the word " un- 
 
Manitoba School Cask, 1894. 
 
 137 
 
 repealed." It miiKi be a Statute alive and in eflectivo 
 operation at the tiniu. 
 
 Mr. Blal'c. \^>s. 
 
 Jjord Watson. His conclusion is based on tlio intro- 
 duction in tlic Uritisli North America Act of the words, 
 "Or is thcreal'tcr cslahlislied by the Ijcgislature of the 
 province." The learned Judge is evidently of opinion 
 that there was some change made upon that law applic- 
 able to Manitoba, that these clauses were adjusted to lit 
 Manitoba, and that Manitoba, whilst it g'cts Acts of Par- 
 liament post-Union which are struck at by sub-section 
 1, at the same time loses the beneiit of the words "or 
 is thereafter established by the Lt^gislature of the pro- 
 vince." 
 
 Mr. BJnkc. Tn the ])ortion T am rc^ading his Lonlship 
 is not di'aliug with the Maiiit(jba Act at all. 
 
 Jjord ]Vats(>n. I may bi; wrong. 
 
 Mr. lilahc. He is dealing with the liritish North 
 America Act. and not with the Manitoba Act, 
 
 Lord Watson. But lie is shewing what the ]5ritish 
 North America Act is. 
 
 J\ir. BJal'c. He is dealing with (Ontario and Quebec 
 under the British North America Act, and not with 
 Manitoba at all. 
 
 " Secondly, as regards the p'o^inces of Nova Scotia and New 
 Rrunswicl<, those provinces not having had any denominational 
 schools at the time of the Union, there is nothing in their case for 
 sub-section i of Section 93 to operate upon." 
 
 Lord Watson. Did they come in under section 93 ? 
 
 Mr. BlaJi'c, Surely, four provinces come in under 
 Section 93. 
 
 2 he Lord CkanccUor. They came in at once. They 
 were two of the four who came in under Section 93. 
 
 Afr. Blal'c. Yes, they were two of the K u original 
 provinces. 
 
 Lord Watson. I had forgotten that. 
 
 Mr. Blake. 
 
 '' Should either of these provinces by after confederation legisla 
 tion create rights and privileges in favour of Protestant or Catholic 
 minorities in relation to education, then so long as these statutes 
 remain unrepealed and iu force, an appeal would lie to the Governor- 
 
138 
 
 Manitoba School Cahk, 1894. 
 
 General from any Act or decision of a provincial authority aficcting 
 any of such rights or privileges of a minority, but there would be 
 nothing to prevent the Legislature of the provinces now under con- 
 sideration from repealing any law which they had themselves 
 enacted conferring such rights and pri\ileges, nor would any Act so 
 repealing their own enactments be subject to appeal to the Governor- 
 General in Council." 
 
 !t 
 
 I i 
 
 
 Of coiirso I liavo alroiidy pointod out tho abso- 
 lutely nugatory character of the power ho limited. 
 If you do not include an appeal i'roni the Legisla- 
 tive Act itself, as long as you acknowledge that 
 tho right of a provincial Legislature to mould 
 the law is not within the provisions of an appeal, it is to 
 little, and I may say to no purpose, to provide this 
 special remedy with reference to the case of other pro- 
 vincial authorities. 
 
 2%e Lord Chancellor. That is true, but, nevertheless, 
 the Legislature may have overlooked that fact and not 
 given such an appeal, but givcm an a])peal from the acts 
 of authorities not meaning the Legislature. I cannot 
 help thinking that by these continual throwings together 
 of Section 93 and Section 22 one only confuses and 
 does not assist, I should have said that the logical 
 method of dealing with it would be to look and see what 
 Section 22 gives, and then to ask whether there is any- 
 thing in Section 93 which, having regard to the like 
 provision of Section 22 of the Manitoba Act, must be 
 added to the provisions of Section 22. 
 
 Mr. Blake. I should not at all object to that method of 
 treating the case. 
 
 The Lord Chancellor. Because Section 22 is the guid- 
 ing, governing and special provision relating to Mani- 
 toba. Whatever was done under the British North 
 America Act, that is what is done for Manitoba. What- 
 ever is tho true construction of those sections Manitobahas 
 got, and Manitoba is to be governed by them. The ques- 
 tion then arises, whether tliere is something more to be 
 added to these, and that depends upon whether having 
 regard to the fact that all provisions of the British North 
 America Act are to apply to Manitoba when it becomes 
 a member of the Union unless they are varied by the 
 
Manitoba School Cawk, 18U4. 
 
 139 
 
 Manitoba Act, tho ('odo (if I may so way) rolating to 
 (.Mliication, in Section 22, is to be- taken aH a substitiito 
 for tli(! wholes (Jotlo of Section 93, or wlictlicr tlicrc is 
 Hoin«itliin^- in Section 93 wliicb, not beinu,' (b'alt with by 
 Section 22 by way of substitution, may be added to it. 
 J)Ut to assume tbat tiiey must be meant to be [)ractically 
 the same, and tben to make uj) your mind what is ^"iven 
 by Section 93, and therefore to c'oucbi<U! that Section 22 
 cannot give substantially more than Section 93 gives, 
 seems to me to have a ten(h.Micy to lead one olf the path 
 rather than guide one to it. 
 
 Mr. Blah'c. I agree. 
 
 Lord WaUon. If you come to the conclusion that both 
 scctiony applied, it would be ditrerent, but when you are 
 starting from the conclusion that only the Act of Mani- 
 toba applies to Manitoba, I think that the assumption of 
 what the Legislature; presumably wanted to do in assi- 
 uulating, is (mly calcidated to mislt>ad. The tirst 
 (jucstion to deteruiine is what is lueant by the words of 
 the Act of 1(S7(). If there are any andjiguities you may 
 refer to the other. 
 
 The Lord ChnnccJlor. The only part, of the liritisli 
 North America Act which could be applicable, woukl be 
 the latter part of sub-section 3. 
 
 Mr. Blake. And that is the only (jucstion that is put. 
 
 Tlie Lord (Jh(i)icellor. 'JMiat would be the only part 
 that would be applicable ; but if the effect of that would 
 be to limit (if its operation be more limited than what is 
 contained in sub-section 2 of Section 22) then sub-section 
 2 of Section 22 must prevail, because it is varied. 
 
 Mr. Blake. Yes. 
 
 The Lord ChanccUor, If you add to it it must only be 
 not because it any way diminishes or detracts from what 
 is given by Section 2:'i sub-section 2, but because it adds 
 to it. If so, we nnist see what it adds. 
 
 Mr. Blah'e. That is precisely the argument. We have 
 all that is containeil in Section 2'2, witliout any limitation 
 on the more general words by means of sub-section 3 of 
 Section 93. Wt; may j)ossibly have something more if 
 we find that there is in the latter sub-section something 
 extra, and not included in or excepted out of Section 22. 
 
140 
 
 Manitoba Scfiool Cahe, 1894. 
 
 Lord Watfion. riliinktliiit appi'oiicliiii*^ lliocoiiHidcratinn 
 (iT Section 22 For tlio lirst linus witli u ^rcjil cloud of 
 prolKiMliticH and siijjpoHitionH and analo^'i((H from other 
 Hvstenis of GovenuncntH, Ih only capaltlc? of inislcading. 
 If it does not inJHlead it crcalcH (.'onfiision, which in a 
 very adniirabU.' way of niiHiuading. 
 
 Mr. lilakc. Then tho Chief JuHti('o continucH : — 
 
 j 
 
 1 ' 
 
 i ■ 
 
 "Thirdly, \vc have the case of the Provhice of Manitoba ; here 
 applyinj^ the construction before mentioned the Provincial powers in 
 relation to education would be not further restricted but somewhat 
 enlarged in comparison with those of the other Provinces. 
 
 " Acting upon the presumption that in the absence of express 
 words the Act of the Dominion Parliament which embodies the 
 constitution of the Province withholding from the Legislature of the 
 Province the normal right of altering or repealing its own Acts, we 
 must hold that it was not the intention of Parliament so to limit the 
 Legislature by the organic law of the Province." 
 
 H 
 
 IHh Lordship hiys down tho canon of conHtruction which 
 ho H.iys is to govern. 
 
 The Lord Chancellor. It is what he has ah'eady hiiii 
 down. 
 
 3rr. niake. Yes. 
 
 '' What, then, is the result of the legislation of the Domion as 
 regards Manitoba ? What effect is to be given to Section 22 of the 
 Manitoba Act ? By the first sub-section any law of the Province 
 prejudicing any right or privilege with respect to denominational 
 schools in the Province existing at the Union is ultra vires and void. 
 This clause was the subject, and the only subject, of interpretation in 
 Barrett and Winnipeg, and the point there decided was that there 
 was no such right or privilege as was claimed in that case existing at 
 the time of the admission of the province into the Union. Had any 
 such right or privilege been found to exist, there is nothing in the 
 Judgment of the Privy Council against the inference that legislation 
 impairing it would have been unconstitutional and void. That 
 decision has, in my opinion, but a very remote application to the 
 present case.'' 
 
 Then ho reads the second sub-section of Section 22 of 
 the Manitoba Act, and says : — 
 
Manitoha Sc'iinoL Cask, 1894. 
 
 141 
 
 '• I put aside as ciuircly irrcvchmt here the question wliether it ua:^ 
 not inteiuleil by this sub-seclion 2 to confer on the Privy Council of 
 the Dominion Atipelhite jurisdiction from the provincial judiciary, a 
 question the decisi(jn of which I may say in passinjj imjfht well be 
 infhuiuedby the consiiler.ition that the power ^'iveii to Parliament 
 by t''e North Hrilish America Act to create federal Courts, 
 had n at the time of the passage of the Manitoba Act been exer- 
 cised." 
 
 I will not iroiiblo your LonUliipa with that puHwago. 
 7'he Lord Chanrcllor. Wo huvo not to doal witli tliiit. 
 
 Mr. Blal-c. 'Fhon 
 
 " Tne first subject of appeal is then, any act or decision of the 
 Legislature of the province affecting any right or privilege of the 
 minority in respect of the matters in question. Now if we are to 
 hold, as I am of opinion we must hold, that it was not the intention 
 of Parliament by these words so to circumscribe the legislative rights 
 conferred by them on Manitoba as to incapacitate that Legislature 
 from absolutely ml without any subjection to Federal control, 
 repealing its own enactments, and thus taking away rights which it 
 had itself conferred, the ri;'^t of appeal to the (iovernor-Cieneral 
 against legislative Acts must oe limited to a particular class of such 
 Acts, viz., to such as might prejudice rights and privileges not con- 
 ferred by the Legislature itself, but rights and privileges which could 
 only have arisen before confederation being those described in the 
 first sub-section of section 22." 
 
 Your Lordships find llio canon of conslruclion it: in- 
 exorable, and its application compels you to limit this 
 to uetH which interfere with pre-nnion rights. 
 
 The Lord Chancellor. And so, compollino' yon, it com- 
 pels you to say that an elaborate system of apjjcal 
 provided by the Leo'jslature specially applicabli! to 
 Manitoba meant nothing' becaus(> the circumstances to 
 which it was applicable never could have arisen. 
 
 Mr. Blake, itas no result at all. 
 
 " That we must assume, in absence of express words, that it was 
 not the intention of Parliament to impose upon the Manitoba 
 Legislature a disabilii/ so anomalous as an incapacity to repeal its own 
 enactments except subject to an appeal to the Governor-General in 
 Council and, possibly, i'le intervention of the Dominion Parliament 
 as a paramount Legislatui -•, is a proposition I have before staled." 
 
142 
 
 Manitoba School Case, 1894. 
 
 lU 
 
 i I 
 
 f. I 
 i ; 
 
 IJiC Lord Chancellor. I confess myself I have a diffi- 
 culty in seeing why to lijnit the power to make an Act 
 which repeals is a tremendous interference with the 
 I^o-ialature, while a power to prevent their making an 
 Act in the first instance is no serious limitation of it. 1 
 have a little difliculty in seeing why (he one is worse 
 than the other. 
 
 Lord Wataon. The one; is a total negation ol! all right 
 to legislate, the other appears to me to be a good deal 
 within it ; that the main purpose of the JjCgislature may 
 be maintained, but to be amended in such a way as not 
 to tram])le on the rights of particular classes. 
 
 Mr. Blake. In fact, it cannot be interfered with except 
 so far as it has trampled on rights. 
 
 Lord Shand. Which is the section whicili gives tl 3 
 Governor General a right to interfere ? 
 
 The Lord Chancellor. vSub-section 2 of Section 22. 
 
 Lord ]ratso7i. In the next sentence you are about to 
 read, the Learned Judge appears to me rather to change 
 his position a little, for what it really comes to is, that if 
 he is right he goes on to say that the right of Appeal is 
 confined to what existed at the Union ; if that bo so, 
 legislation, which is struck at by Sub-section 1, may 
 become the subject of a process of rescission in the 
 ordinary course, and may be cut down as idtra vires, 
 or alternatively, according to the learned Judge's view, 
 may be treated as not ultra vire,<i, but as mtra vires and 
 mendable by appeal. It seems to give an alternative. 
 
 Mr. Blalce. Yes, that is the view. 
 
 Lord Watson. I can hardly conceive that the Legis- 
 lature tf Canada intended iirst to absolutely declare 
 that particular Legislation on a particular subject, was a 
 nullity, and then to allow the nullity to be the subject of 
 appeal. 
 
 Mr, Blake. An appeal on the question of its validity. 
 
Manitoba School Case, 1894. 
 
 143 
 
 The Lord Chancellor. I suppose the other side would 
 say, I do not know whether they wouhl, and that is not 
 wliat has been said, that it does not make it null. It is 
 only a direction to the Legislature that nothing they do 
 is to have that oflect, aii'l the remedy, if they do legis- 
 late, is to appeal to the Governor-General. 
 
 Mr. Blahe. That has ni^ver been said anywhere. In 
 all the various mazes of the controversy and its various 
 forms, that has never been put ibrward. 
 
 Lord Wats^ a. That is a view which, if the Learned 
 Chief Justice is correct, I think is a more plausible and 
 reasonable way of putting the case. He says it is 
 absolutely ultra vires. 
 
 The Lord Chancellor. Yes, he says it is null. 
 
 Mr. JilaJie. All thvoughout it has been conceded that 
 the power of the Legislature was limited by this sub- 
 section 1. 
 
 Lord ]raison. I could ipiite understand if sub-section 2 
 was a sort of warning to naughty boys not to do a par- 
 ticular thing, but if they do it so and so will happen. 
 That is not an ordinary mode of legislation. 
 
 Mr. Blake. 
 
 " Therefore the right of Appeal to the Governor-General in 
 Council must be confined to acts of the Legislature afiecting such 
 rights and privileges as are mentioned in the first sub-section, namely, 
 those existing at the Union when belonging to a minority, either 
 Protestant or Catholic." 
 
 That is to say, it is more limited in the future as to the 
 purpose of the Appeal, it is more limited as to the 
 classes that can use it, and more doubtfid as to the 
 result, and it is based on the theory that the Act if bad, 
 except to the extent that special laws may be passed 
 leaving out the portion which had made the Act void 
 altogether, 
 
144 
 
 Manitoba School Gasp], 1894. 
 
 j 
 
 if 
 
 i 
 
 Lord Watson. Not the Act altogether, only the pro- 
 vision of the Act. 
 
 Mr. Blake. Yes, the provision of tho Act. The Act 
 would not be void if the provision is suparablc. It 
 mio'ht strike at tho root of tho enactment and so avoid it 
 altogether. In tho large majority of cases it has 
 occurred that the ultra vires provisions in the Act of 
 Parliament objected to affected only a part, and lel't the 
 Act itself good. 
 
 Then there would also be the right of Appeal from any provincial 
 authority. I will assume that the description "provincial authority'' 
 does not apply to the Courts of Justice. Then these words '' provincial 
 authority could not, as used in this sub-section 2 of section 22 of 
 the Manitoba Act, have been intended to include the provincial 
 Legislature, for it is expressly distinguished from it being mentioned 
 alternately with 'the Legislature.' An appeal shall lie from any Act 
 or decision of the Legislature, or of any ' provincial authority,' is the 
 language of the section. It must then apply to the provincial, 
 executive or administrative authorities. No doubt an appeal 
 would lie from their Acts or decisions upon the ground 
 that some right or privilege existing at the date of the 
 admission of the province to the Federal Union was thereby 
 prejudiced. In this respect Manitoba would be in the same 
 position as Ontario and Quebec. Unhke the cases of those 
 provinces, and also unlike the case of the two maritime pro- 
 vinces, Nova Scotia and New Brunswick, there would not, however, 
 in the case of Manitoba, be an appeal to the Governor-General in 
 Council from the Act or decision of any provincial authority upon 
 the ground that some right or privilege not existent at the time of 
 the Union, but conferred subsequently by legislation, had been violated. 
 This construction must necessarily result from the right of appeal 
 against Acts or decisions of provincial authorities, aild against Acts or 
 decisions of the Legislature being limited to such as prejudiced the 
 some class of rights or privileges. The wording of this sub-section 2 
 shows clearl}' that only one class of rights or privileges could have 
 been meant, and that the right of Appeal was therefore to arise upon 
 an invasion of these, either by the Legislature or by a Provincial 
 authority. Then as the impossibility of holding" (it has become now 
 an impossibilit}') "that it could have been intended to impose fetters 
 on the Legislature or to incapacitate it from repealing its own Acts 
 requires us to limit the Appeal against its enactments to Acts affect- 
 ing rights and privileges existing at the LTnion. it must follow that 
 the right of Appeal must be in )ike manner limited as regards acts 
 or decisions of Provincial authorities. This, however, although it 
 makes a difference between Manitoba and the other Provinces, is not 
 a very material one. The Provincial authorities would, of course, 
 be under the control of the Courts ; they could therefore be com- 
 pelled by the exercise of judicial authority to conform themselves to 
 law. 
 
Manitoba School Case, 1894. 
 
 145 
 
 in 
 
 Lord WaUoJi. Ono observation that ocpiirs to me on 
 that reasoning is this. It may bo right or wrong, but I 
 think the h>arnod Judge overlooks the fact that in Sub- 
 section .3 of 8(!ction 93 the words of tlie Section contain 
 words of limitation which make it necessary to bring in 
 that ex])ression. You liave not tlie words of limitation 
 " existiiiii' hv law at the Union " in Sub-section 2. It is 
 absolutely necessary — if all legislation, whctiier prior 
 or post-Union as you call it, was to be brought in 
 effectively tlnni it was absolutely necessary to put in 
 these words " or may be alter established," 
 
 Mr. Blake. Certainly. 
 
 Lord Watson. But in Sub-section 2 oC 22 you start 
 with the limitation of the general words. 
 
 Mr. Blake. Jjut your Lordship places force on the 
 omission of one set oC descriptions. 
 
 Lord Watson. It was rendered necessary if they meant 
 to make it necessarv. 
 
 Mr. Blake. If you omit both, the geuerality is main- 
 tained. 
 
 Lord Watson. I merely mention that I do not think it 
 is conclusive, but it rather weakens the force of the 
 criticism. 
 
 Mr. Blake. 
 
 " Munh greater would have been the difference between Manitoba 
 and the otlier provinces, if we were to hold that, whilst as regards the 
 provinces of Nova Scotia and New Brunswick, their Legislature 
 could enact a separate school law one session and repeal it the next 
 without having their repealing legislation called in question by 
 appeal, and whilst as regards Ontario and Quebec, although rights 
 and privileges existing at confederation were made intangible by their 
 Legislatures, yet any increase or addition to such rights and privi- 
 leges which these Legislatures might grant could be withdrawn by 
 them at their own pleasure subject to no Federal revision, yet that 
 the legislation of iManitoba on the same subject should be only 
 revocable subject to the revisory power of the Governor-General in 
 Council." 
 
 The Lord Chancellor. It might have been strange, but 
 if the provincial authority does not mean the Legisla- 
 ture, they have not dealt with the Act of I^egislature. In 
 
146 
 
 Manitoba School Case, 1894 
 
 Manitoba they hfi\^o dealt with an Act of the Loo-jsLiture, 
 and thorctbre, however strange it may bo, tliey liave 
 done it. They have made that ditreronce. I am not 
 dealino; with what the extent of the rights are that are 
 aUuded to. and there is tliis broad and substantial diit'cr- 
 ence. In the one case you are allowed to a[)j)eal under 
 the Act of the Legislature on this hypothesis, and in 
 the other you are not, and that is brought about by the 
 plainest enactment in the world. 
 
 Mr. Blal'e. His result after all this strained argument 
 and these canons of construction is this : 
 
 " I have thus endeavoured to show that the construction I adopt has 
 the effect of placing all the provinces virtually in the same position 
 with an immaterial exception in favour of Manitoba, and it is for the 
 purpose of demonstrating this that I have referred to appeals from 
 the Acts and decisions of provincial authorities which are not other- 
 wise in question in the case before us." 
 
 My opinion is he has aggravated the dilTerences in- 
 stead of diminishing them by the construction. 
 
 The Lord Chancellor, If he is right in his construction 
 of the words "provincial authority," why the Legislature 
 has made the marked distinction between them and why 
 there should be an endeavour to fritter away such a dis- 
 tinction as that in the one case an appeal to the 
 Governor-General against the Legislative Act is allowed, 
 and in the other it is not, I do not know. 
 
 Mr. Blake. No. 
 
 The Lord Chancellor. I should say the more you 
 fritter it away, the more you are destroying the apparent 
 intention of the Legislature to nuike a difference. 
 
 Mr. Blal-e. 
 
 " That the words ' provincial authority ' in the third sub-section 
 of Section 93 of the British North America Act do not include 
 the Legislature is a conclusion which I have reached not with- 
 out difficulty. In interpreting the Manitoba Act, however, 
 what we have to do is to ascertain in what sense the 
 Dominion Parliament in adopting the same expression in the 
 Manitoba Act, understood it to have been used in the 
 British North America Act. That they understood these words 
 not to include the Provincial Legislatures is apparent from 
 
Manitoba School Cask, i894. 
 
 147 
 
 Section 22 of the Manitoba Act, wherein the the two expressions 
 ' provincial authority and legislature of the province ' are used in the 
 alternative, thus indicating that in the intendment of Parliament 
 they meant different subjects of appeal. Again, why were the words 
 contained in the 3rd sub-section of Section 03 of the British North 
 America Act, ' or is thereafter established by the Legislature of the 
 province ' omitted, when that section was in otlter respects trans- 
 cribed in the Manitoba Act." 
 
 His Lordshij), once uo-ain, I tliink lor tlic fourth 
 or liftli time, treiils the post-Union arrangements as the 
 only thing oniitte<l, and says that the section is m other 
 respects tlie same, whereas, as his Lordship, Lord 
 Watson, has pointed out tliiit inference is obviated by a 
 reference to the provision hichiding pre-Union arrango- 
 uients. Tlie two are omitted. His Lordship thinks 
 there; was only one. 
 
 " The reason it appears to me is plain. So long as these words 
 stood with the context they had in the British North America Act, 
 they did not in any way tie the hands of the Legislatures as regards 
 the undoing, alteration, or amendment of their own work, for the 
 words ' any provincial authority ' did not include the Legis- 
 lature. But when in the Manitoba Act the Dominion Parliament 
 thought it advisablu for the better protection of vested rights — 
 rights and privileges — existingat the Union, to give a right of appeal 
 from the Legislature to the Governor-General in Council, it omitted 
 the words ' or is thereafter established by the Legislature of the 
 province,' with the intent to avoid placing the Provincial Legislature 
 under any disability, or subjecting it to any appeal as regards the 
 repeal of its own legislation, which would have been the effect if 
 the third sub-section of section 93 of the British North 
 America Act had been literally re-enacted in the Manitoba Act, 
 with the words ' of the Legislature of the province ' interpolated as we 
 now find them in sub-section 2 of the latter Act. This seems to me 
 to show conclusively that the words ' rights or privileges ' in sub- 
 section 2 of Section 22 were not intended to include rights and 
 privileges originating under the provincial legislation since the 
 Union, and that the Legislature of Manitoba is not debarred from 
 exercising the common legislative right of abrogating laws which it 
 has itself passed relating to denominational or separate schools or 
 educational privileges, nor is such repealing legislation made subject 
 to any appeal to the Governor-General in Council." 
 
 Lord Skarul. I do not see anywhere in his Lordships 
 opinion that he touches the (pieslion oC what really would 
 be the atlvantage of an appeal to the Governor in 
 Council, in addition to an enactment that the thing itself 
 should be null. 
 
 Mr. Blalic. No, I do not find anyone touches on it. I 
 am not able to see the advantage. 
 
' } 
 
 148 
 
 Manitoba School Cask, 1894. 
 
 Lord Sh(m<L If you have an onactmeiit that I ho thin^ 
 ia null, tlion tho Court ot'Ijaw would declare it so, anil 
 you do not want the necessity of an appeal to the 
 Governor. 
 
 Loi'd l}litso7L If you are referring to these ahernatives 
 that are given, 1 think it sliews considerable lack of 
 ingenuity not to be able to suggest some reason. It 
 might l)e said to give to persons an option whether thoy 
 wished to gel rid of it in toto, or have it amended. 
 
 Lord SJidud. So far as it is u/fvd vires they 
 proceed to tlie Court of Law to declare so much 
 vire.s. 
 
 Lord ]]\tt.'ion. I think there is a 
 improbability about it 
 
 could 
 idtra 
 
 Mr. Blake. 
 
 Then 
 
 certain amount of 
 I come to Mr. Justice Fourniers 
 
 Judgment — 
 
 By the Statute 
 Act the 
 
 provision:. 
 
 33 Vic. ch. 3 sec. 2 (D) the Manitoba 
 of the British Nortli America Act except 
 so far as the same may be varied by the said Act are made 
 applicable to the Province of Manitoba in the same way and to the 
 like extent as they apply to the several Provinces of Canada, and as 
 if the Province of Manitoba had been one of the provinces united 
 by the British North America Act. This Act was Imperialized so 
 to speak by 34 Vic. ch. 38 Imp. which declares that 32 & 33 Vic. 
 ch. 3 (D) shall be deemed to have been valid and efl'ectual for all 
 purposes whatsoever. 
 
 If we are now called upon to construe certain provisions of this 
 Statute, it seems to me that the same considerations will apply as if 
 the provisions appeared in the British North America Act itself 
 under the heading " Manitoba " and therefore, as stated by the late 
 Chief Justice of this Court, in the case of Severn v. the Queen 
 [2 Can. S. C. R. 70] '' in deciding important questions arising under 
 " the Act passed by the Imperial Parliament for federally uniting 
 " the Provinces of Canada, Nova Scotia and New Brunswick, we 
 " must consider the circumstances under which that Statute was 
 '' passed, the condition of the different provinces, their relations to 
 " one another, as well as the system of government which prevailed 
 " in those provinces and countries." For convenience therefore I 
 will place in parallel columns the sections of the Manitoba Act and 
 the corresponding sections of the British North America Act in 
 relation to education upon which we are required to give an answer. 
 [Supra p. 12.'] 
 
 What was the existing state of things in the territory then being 
 formed into the Province of Manitoba ? Rebellion, as I have already 
 stated in the case of Barrett v. Winnipeg, had thrown the people 
 into a strong and fierce agitation, inflamed religious and national 
 passions caused the greatest disorder, which rendered necessary the 
 intervention of the Federal Government, and, as matters then stood 
 on the 2nd March, 1870, the Government of Assiniboia in order to 
 
Manitoba School Cask, 1804. 
 
 149 
 
 pacify the inhabitants appointed Rev. W. Ritchot and Messrs. Black 
 and Scott as joint delegates to confer witli the Government of 
 Ottawa, and nej^otiate the terms and conditions upon which the 
 inhabitants of Assiniboia would consent to enter confederation with 
 the Provinces ofCanada. 
 
 Mr. Ritchot was instructed to inmiediately leave with Messrs. 
 Black and Scott for Ottawa, in view of openinjr nej^otiations on the 
 subjects of their mission with the Government of Ottawa. 
 
 When they arrived at Ottawa, the thre'- delej;ates, Messrs. Ritchot, 
 Black and Scott, received on the 25th April, 1870, from the Hon. 
 Mr. Howe, the then Secretary of State lor the Dominion of Canada, 
 a letter informing them that the Hon. Sir John A. Macdonald and 
 Sir George Cartier had been authorised by the Goverimient of 
 Canada to confer with them on the subject of their mission., and 
 that they were ready to meet them. 
 
 The Rev. Mr. Ritchot \vas the bearer of the conditions upon which 
 they were authorised to consent for the inhabitants of Assiniboia to 
 enter confederation as a separate province. 
 
 These facts appear in Exhibit L, Sessional papers ofCanada, 1893, 
 33 D, and in Exhibit N of the same Sessional paper we see that the 
 following conditions. Articles 5 and 7 read as follows : — 
 
 " 5. That all properties, all rights and privileges possessed be 
 
 respected, and the establishing and settlement of the customs, 
 
 usages, and privileges be left for the sole decision of the local 
 
 legislature." 
 
 " 7. That the schools shall be separate, and that the monies for 
 
 schools shall be divided between the several denominations pro 
 
 rata of their respective populations." 
 
 Now, after negotiations had been going on, an.d despatches and 
 instructions from the Imperial Government of Canada on the subject 
 of the entrance of the Province of Manitooa into the Confederation 
 had been received, the Manitoba Constitutional Act was prepared 
 and section 22 inserted as a satisfactory guarantee for their rights 
 and privileges in relation to matters of education as claimed by the 
 above articles 5 and 7. And until 1890 the inhabitants of the Pro- 
 vince of Manitoba enjoyed these rights and privileges under the 
 authority of this section and local statutes passed in conformity 
 therewith. 
 
 However, it seems by the decision of the judicial Committee of 
 the Privy Council in the case of Barrett v. Winnipeg, that the dele- 
 gates of the North-West and the Parliament of Canada although 
 believing thau the inhabitants of Assiniboia had before the union 
 " by law or by practice, certain rights and privileges with respect to 
 denominational .schools " — for the words used in sub-section i of this 
 section 22 are " which any class have by law or practice in the 
 province at the union " — had in point no such right or privilege by 
 law or practice with respect to denominational scIkjoIs, and there- 
 fore that sub-section i is, so to speak, wiped out of the Constitutional 
 Act of Manitoba, having nothing to operate upon. 
 
 But if the parties agreeing to these terms of union, were in 
 error in supposing they had by law or practice, prior to the union, 
 
 V r\ 
 
150 
 
 Manitoha School Cask, 1894. 
 
 I < ( 
 
 i! : 
 
 ' 1 
 
 certain rights or privileges, they certainly were not in error in 
 trusting that the provincial legislature as the Legislature of Ouehec 
 did t/f/cr confederation for the Protestant minority which was heing 
 created would forthwith settle and estahlish their usages ami 
 privileges and secure hy law and in accordance with articles 5 and 7 
 of the hill of rights, separate schools for the Catholics of Manitoha, 
 and would make provision so that the moneys woidd he divided 
 hetween the Protestant and Catholic denominations //o />/ A? to their 
 respective populations. Then once established and secured by their 
 own local legislature in accordance with the terms of the union, is 
 not the minority perfectly within the spirit and the words of the 
 Constitutional Act in contending that rights and privileges so secured 
 by an Act of the Legislature are at least in the same position as 
 rights secured to minorities in the Provinces of Quebec and Ontario 
 under section 93 of the British North America Act and that sub- 
 sections 2 and 3 were inserted in the Act so that they might be pro- 
 tected by the Governor-General against any subsequent legislation 
 by either a Protestant or Catholic majority in after years. 
 
 In the present reference being again called upon to construe this 
 same Section 22, but as if sub-Section i was repealed or wiped out 
 by judicial authority, we must, I think, take into consideration the 
 historical fact that the Manitoba Act of 1870 was the result of 
 the negotiations with parties who agreed tojoin and form part of the 
 Confederation as if they were inhabitants of one of the Provinces 
 originally united by the British North America Act, and we must 
 credit the Parliament of Canada with having intended that the 
 v\-ords " an appeal shall lie to the Governor-General-in-Council from 
 an}^ act or decision of the Legislature of the Province or of any 
 Provincial authority aflFecting any right or privilege of the Protestant 
 or Roman Catholic minority of the Queen's subjects in relation to 
 education " (which are also the words used in the 93rd Section of the 
 British North America Act) should have some effect. The only 
 meaning and effect I can give them is that they were intended as an 
 additional guarantee or protection to the minority, either Protestant 
 or Catholic, whichever it might happen to be, that the Laws which 
 they knew would be enacted innnediatel\- after the Union, by their 
 own Legislature in reference to education, would be in accordance 
 with the terms and conditions upon which they were entering the 
 Union, this guarantee was given so as to prevent later on, inter- 
 ference with their rights and privileges by subsequent legislation 
 without being subject to an appeal to the Governor-General in 
 Council should such subsequent Act of the Legislature affect any 
 right or privilege thus secured to the Protestant or Catholic minority 
 by their own Legislature. 
 
 In ni)' opinion the words used in sub-Section 2 " an appeal shall 
 lie from any Act of the Legislature" necessarily mean an appeal 
 from any Statute which the Legislature has power to pass in relation 
 to education, if (it tlic time of the passing of such Statute there 
 exists by law any right or privilege enjoyed by the minority. There 
 is no necessity of appealing from Statutes which are ultra vires for 
 the assumption of any unauthorised power by any local Legislature 
 
Manitoha School Cask, 1894. 
 
 151 
 
 under our system of Goveriiuicnt is not remedied by appeal to the 
 Govenior-C/eiieral in Coimtil, hut by Courts of Justice. 
 
 Then, as to the words " right or privile^fe" in this suh-Section, 
 they refer to some right or privilege in relation to education to he 
 created by the Legislature which was being brought into existence, 
 and which, once established, might thereafter be interfered with at 
 the hand of a I-ocal majority so as to afTect the i'rotestant or Catholic 
 minority in relation to education. It is clear, therefore, that the 
 (iovernor-(ieneral in Council has the right of entertaining an appeal 
 by th(; British North America Act as well as by sub-Section Z of 
 Section 22 of the Manitoba Act. He has also the power of consider- 
 ing the application upon the merits. When the application has 
 been considered by him upon its merits if the Local Legislature 
 refuses to execute any decision to which the Governor-General has 
 arrived in the premises, the Dominion Parliament may then under 
 sub-vSection 3 of Section 22 of the Manitoba Act, pass remedial 
 legislation for the execution of his decision. 
 
 In construing, as I have done, the words of sub-.Section 2 of the 
 22nd Section of the Manitoba Constitutional Act, which is as regards 
 an appeal to the Governor-General in Council, but a reproduction of 
 sub-Section 3 of Section 03 of the British North America Act, 
 except that the clear unequivocal and comprehensive words " from 
 any act or decision of the Legislature of the Province " are added, I 
 am pleased to see that I am but concurring in the view expressed by 
 Lord Carnarvon in the House of Lords on the 19th February 1H67 
 when speaking of this right of appeal to be granted to minorities 
 when a Local Act might aflect rights or privileges in matters of 
 education, as the following extract from Hansard's Parliamentary 
 Debates, 3rd Series, February iq, 1867, shows : — ''Lord Carnarvon. 
 — Lastly, in the q3rd Clause, which contains the exceptional 
 provisions to which I referred, your Lordships will observe some 
 rather complicated arrangements in reference to education. I need 
 hardly say that the great question gives rise to nearly as much 
 earnestness and division of opinion on that as on this side of the 
 Atlantic. This clause has been framed after long and anxious con- 
 troversy in which all parties have been representLcl, and on conditions 
 to which all have given their consent. It is an understanding 
 which, as it only concerns the local interests aftected, is not one that 
 Parliament would be willing to disturb, even if in the opinion of 
 Parliament it were susceptible of amendment, but I am bound to 
 atld, as the expression of m\- own opinion, that the terms of agree- 
 ment appear to me to be equitable and judicious. For the object of 
 the clause is to secure to the religious minority of one Province the 
 same rights and privileges and protection which the religious 
 minority of another Province may enjoy. The Roman Catholic 
 minoritv of Upper Canada, the Protestant minority of the Maritime 
 Province, will thus stand on a footing of entire equalitj-. But in the 
 event of any wrong at the hand of the local majority, the niinority 
 have a right of appeal to the Governor-General in Council, and may 
 claim the application of any remedial laws that may be necessary 
 from the central Parliament of Confederation." 
 
152 
 
 Manitoha School Cabe, 1894. 
 
 ;1 
 
 This beiiifi so, the next point of enquiry is whether the Acts of 
 iHoo of Manitoba affect anyrijrht or privilege secureil to tlie Catholic 
 minority in inaltcrsof education after the Union, for we have notiiiiijr 
 to do with the enquiry whether the CathoMc minority luid at the 
 time of llie Union any lijfJU by law or practice, that point as I iiave 
 already staled having been decided adversely to tiieir contention by 
 the decision of tlie Privv Council in tiie case of "Harrett r<. 
 Winnipejf." By referring to the legislation from the (hite of the 
 Union till iH<)o, it is evident that tlie Catholics enjoyed tiie im- 
 munity of bein^ taxed for other sclviols than their own, tiie ri^iit of 
 organization, tlie rij^hl of self-i;..v eminent in this school matter, the 
 rijfht of taxation of their own people, the rijj[ht of sharing in (lovern- 
 meiit grants for education and many other rights under the statute 
 of a most material kind. All these rights were swept away by the 
 Acts of 1 800, as well as the properties they had acquired under 
 these Acts with their taxes and their share of the public grants 
 for education. Could the prejudice caused by the Acts of iHqo be 
 greater than it has bcjn ? The scheme that runs through the Acts 
 of 1 87 1 and 1 88 1 up to i8qo, as Lord Watson of the Privy Council 
 is reporttd to have so concisely stated on the argument of the case 
 of "Bariett v, Winnipeg" (which is primed in the sessional papers 
 of Canada, 1893) appears to ha\e been that "no ratepayer shall be 
 taxed for contribution towards i ny school except one of his own 
 denomination " ; and I will add th.'t this scheme is clearly pointed 
 out in Articles 5 and 7 of the Conditions of Union above already 
 referred to which were the basis of the Constitutional Act. 
 
 Now is this a legal right or privilege enjoyed by a class of persons ? 
 In this case the immunity from contributing to any schools other 
 vhan one of its own denominaiion was acquired by the Catholic 
 minority and Catholics by statute, and Catholics certainly at the 
 time the legislation was passed represented a class of persons com- 
 prising at least one-thirc! of the inliabitants of the Province of Mani- 
 toba. It is unnecessary, I think, after reading the able Jutlgments 
 delivered in the case of '' Barrett v, Winnipeg " to show by authority 
 that the right so acquired by the Catholic minority after the Union 
 b)' the Act of 1871 was a legal right, and that, if it is shown by sub- 
 sequent legislation enacted by the Legislature of the Province -^^f 
 Manitoba that there has been any interference with such right, then 
 I am of opinion that such interference would come within the very 
 words of this Section 22 of the Manitoba Constitutional Act, which 
 gives a right of appeal to the Governor-General in Council from 
 '' any Act of the Legislature (words which arj not in Section 03 of 
 the British North America Act, but are in sub-Section 2 of Section 
 22 of the Manitoba Act) affecting a right acquired by the Roman 
 Catholic minority of the Queen's subjects in relation to education." 
 
 The only other question submitted to us I need refer to is the 
 4th question. 
 
 Does sub-Section 3 of Section 93 of the British North America 
 Act, 1867, apph to Manitoba ? The answer to this question is to be 
 found in the second section of the Manitoba Act, 32 and 33 Vic, 
 cap. 3 which srys " from and after the said date the provisions of the 
 British North America Act shall apply, except those parts thereof 
 
Manitoba School Case, 1894. 
 
 153 
 
 which arc in terms made, or by reasonable intendment, may be held 
 to be specially applicable to, or only to affect one or more, but not 
 the whole of the Provinces now comprisinjr the Dominion and 
 except so far as the same may be varied by this Act and be applic- 
 able to the Province of Manitoba in the same way and to the like 
 extent as they apply to the several Provinces of Canada, and as if the 
 Province of Manitoba had been one of the Provinces oriirinally united 
 by the said Act." The Manitoba Act has not varicil the British 
 >forth America Act, though sub-section 2 of Section 22 has a some- 
 what more comprehensive wordinjf than sub-section 3 of Section <)3 
 of the British North America Act in relation to appeals in educa- 
 tional matters. A Statute does not vary or alter if it merely makes 
 further provision, it is simply an addition to it. The second sub- 
 section is wider but does not vary at all from the third sub-section of 
 the 93 section of the British North America Act, save in this that 
 there is an addition to it, that it includes it and goes beyond it by 
 adding the words " and from any Act of the Legislature.'' The third 
 sub-section of the British North America Act pr^vi^Ies that in two 
 cases there is to be an Appeal. There is nclunig inconsistent in the 
 Manitoba Act which says that in a// cases there shall be an Appeal, 
 it goes beyond the British North America Act, it does not vary it, it 
 leaves it as it is and adds to it. 
 
 We see by the opinion expressed by some of the Lords of the 
 Privy Council how far the right of Appeal extends under Section 2 
 of the Manitoba Act, for in the argument on that question before 
 the Privy Council (Sessional papers i 8 No. 33a, 33b, 1S93) we read 
 at page 134, that when Mr. Ram, Counsel, was arguing on behalf of 
 Mr. Logan in the case of " Winnipeg ?'. Logan " he said " I venture 
 to think that under sub-section 2 what was contemplated was this, 
 that apart from any question ultra vires or not, if a minority said, ' I 
 am oppressed ' that was the party who had to come under that 
 sub-section 2 and appeal to the Government. 
 
 " Lord Hannen : It has a right to ap^ieal against (tni/ Act of the 
 Legislature. 
 
 " Lord Shand : Even iiltni /•//vs." 
 
 This being also my opinion, I will only add that, having already 
 stated that 1 think that we should read the Mar,itoba Constitutional 
 Act in the light of the British North America Act, and that it was 
 intended as regards all civil rights in educational matters to place the 
 Province of Manitoba on the same footing as the Provinces of 
 Quebec and Ontario, and that sub- section i of Section 22 having 
 been enacted for the purpose of protecting rights held by law or 
 practice prior to the Union, but which have been declared not to 
 exist. I am of opinion that sub-section 2 of Section 22 of the Mani- 
 toba Constitutional Act provides for an Appeal to the Governor- 
 Gcneral in Council by memorial or otherwise, on the part of the 
 Roman Catholic minority, contending that the two Acts of the 
 Legislative Assembly of Manitoba passed in i8qo on the subject of 
 education, are subversive of the rights and privileges of the Roman 
 Catholic ratepayers not to be taxed for contribution towards schools, 
 except one of their own denomination, and that such right has been 
 acquired by Statute subsequent to the Union. 
 
154 
 
 Manitoha School Cask, I8i)4. 
 
 For the above reasons I answer the t|iiestions suhinitteil by His 
 Excellency, the Governor-General in Council, as follows : — 
 
 (i.) Is the appeal referred to in the said memorials and petitions 
 and asserted thereby, such an appeal as is admissible by sub- 
 section 3 of Section ')3 of the Hritish North America 1H67, or by 
 sub-section 2 of Section 22 of Manitoba Act 33, \'ic. (1X70) cap. 3, 
 Canada ? Yes. 
 
 (2.) Are the grounds set forth in the petitions and memorials 
 such as may be the subject of appeal umler the authority of sub- 
 sections above referred to, or either of tlutn ? Yes. 
 
 (3.) Does the decision of the Judicial Committee of the Privy 
 Council in the cases of " Rarrett /•. The City of Winnipeg;" and 
 " Logan 7'. The City of Winnipeg," dispose of or conclude the 
 application for redress, based on the contention that the rights of 
 the Roman Catholic minority which accrued to them after the 
 Union under the Statutes of the Province have been interfered 
 with by the two Statutes of 1X90, cojnplained of in the said 
 petitions and memorials ? No. 
 
 (4.) Does sub-section 3 of Section 93 of the British North 
 America Act, 1867, apply to Manitoba ? Yes. 
 
 (5.) Has His K.\cellency, the Governor-General in Council, 
 power to make the declarations or remedial orders which are 
 asked for in the said memorials and petitions, assuming the 
 material facts to be as stated therein, or has His Kxcellency, the 
 Governor-General in Council, any other jurisdiction in the pre- 
 mises ? Yes. 
 
 (6.) Did the Acts of Manitoba, relating to education, passed 
 prior to the Session of 1890 confer on or continue to the minority 
 a "right or privilege in relation to education " within the meaning 
 of sub-Section 2 of Section 22 of the Manitoba Act, " or establish 
 a system of separate or dissentient schools " within the meaning 
 of sub-Section 3 of Section 93 of the British North America Act, 
 1867, if said Section 93 be found applicable to Manitoba, and if so, 
 did the two Acts ^i 1890 complained ot, or either of them, alTect 
 any right or privilege of the minority in such a manner that an 
 appeal will lie thereunder to the Governor-General in Council ? 
 Yes. 
 
 Then ]\fr. Justice Taschercau says : — 
 
 I doubt our jurisdiction on this reference or consultation. Is 
 section 4, of 54 & 55 Vic., ch. 25, which purports to authorize such a 
 reference to this Court for herring "or '' consideration w/ni 7 ires of 
 Parliament ? By which section of the British North America Act is 
 Parliament empowered to confer on this Statutory Court any other 
 jurisdiction than that of a Court of Appeal under section 101 thereof? 
 This Court is evidently made, in the matter, a Court of First Instance, 
 or rather I should say, an Advisory Board of the Federal Executive 
 substituted //'o //rtt 77lr for the law officers of the Crown and not 
 performing any of the usual functions of a Court of Appeal, nay, or 
 any Court of Justice whatever. However, I need not, at present, 
 
AIanitoha School Cahk, 1894, 
 
 165 
 
 further invLstij^alc this point. It has not been raised, and a similar 
 enactment t(t the same import has already been acted upon. That is 
 not conchisive, it is true : but our answers to tlie questions submitted 
 will bind no one, not even those who put them, nay, not even those 
 who >iive them, no Court ol justice, ikH even this Court. We ^ive 
 no judgment, we determine nothinj^. we enil no controversy: and 
 whatever our answers may be, should it be deemed expedient, at any 
 time b\- the .Manitoba Kxecutive, to impuj^n the constitutionality of 
 .uiy measure that miyht hereafter be taken by the Federal authorities 
 against the provincial lef(islation, whether such measure is in accord- 
 ance with or in opposition to the answers to this consultation, the 
 recourse, in tin; usual way, to the Courts of the country remains 
 open to them. 'IMiat is, 1 presume, tiie consiileration, and a very 
 lej:;itimate one, I should say, upon which the Manitoba K.xecutive 
 acted by refraining to take part in the arjjument on the reference, a 
 course that I would not have been surprised to see followed by tlie 
 Petitioners, unless indeed they are assured of the interference of the 
 Federal authorities, should it eventually result from this reference 
 that constitutionally the power to interfere with the provincial legis- 
 lation as prayed for exists. For if as a matter of policy, in the 
 public interest, no action is to be taken upon the Petitioners' 
 application, even if the .Appeal lies, the futility of these proceedings 
 is apparent. 
 
 Assuming, then, that we have jurisdiction, I will try to give as 
 concisely as possible the reason upon which I have based my answers 
 to the questions submitted. In the view I take of the application 
 made to His Excellency, the (jovernor-General in Council, by the 
 Catholics of Manitoba I think it better to introvert the order of the 
 questions put to us, and to answer first the fourth of these questions, 
 that is, whether sub-section 3 of section 93 of the British North 
 America Act applies to Manitoba. To that question the answer, in 
 my opinion, must be in the negative. That section of the British 
 North America Act applies to every one of the Provinces of the 
 Dominion, with the e.xception, however, of Manitoba, for the reason 
 that, for Manitoba, in its special charter, the subject is specifically 
 provided for by section 22 thereof. The maxims lex fiastcrior 
 dcrognt priori and spcciala gcncralihns dcrogant have both liere, it 
 seems to me, their application. If it had been intended to purely 
 and simply extend the operations of that section 93 of the British 
 North America Act to Manitoba, section 22 of its charter would not 
 have been enacted. The course since pursued for British Columbia 
 and Prince Edward Island would have been followed. But where 
 we see a difierent course pursued we have to assume that a difference 
 in the law was intended. I cannot see any other reason for it and 
 none has been suggested. True it is that words " or practice " in 
 sub-section i of section 22 are an addition in the Manitoba Charter 
 which the Dominion Parliament desired to specially make to the 
 analogous provision of the British North America Act, but that was 
 no reason to word sub-section 2 thereof so difTerently as ii is from 
 sub-section 3 of section 93 of the British North America Act. 
 Then this difference may be easily explained, though its conse- 
 quences may not have been foreseen. I speak cautiously and 
 
156 
 
 Manitoba School Case, 1894 
 
 ! i 
 
 I ! 
 
 •I 
 
 mindful that I am not here allowed to controvert or even doubt, 
 anything that has been said on the subject by the Privy Council. 
 It is evident, to my mind, that it was simply because it was assumed 
 by the Dominion Parliament that separate or denominational schools 
 had previously been in that region, and were then, at the Union, the 
 basis and ];rinciple of the educational system ; and with the inten- 
 tion of ac'apting such system to the new province, or rather of con- 
 tinuing it as found to exist, that in the Union Act of 1870 the words 
 of sub-section 3 of section 93 of the British North America Act : 
 " Where in any province a system of separate or dissentient schools 
 exists by law, at the Union, or is thereafter established by the Legis- 
 lature of the province " — were stricken out as unnecessary and inap- 
 plicable to the new province. And I do not understand that the 
 Privy Council denies to the Petitioners their right to separate schools. 
 However, the reason of this difference between the constitution of 
 the Province and the British North America Act cannot, in my view 
 of the question, bring much assistance in the present investigation ; 
 the fact remains — whatever may have been the reason for it — that no 
 appeal is given to the minority in Manitoba in relation to the rights 
 and privileges conceded to them since the Union as distinguished 
 from those in existence at the Union. They have no rights but 
 what is left to them by the judgment in the Barrett case ; and, if I 
 do not misunderstand that judgment, the appeal they now claim to 
 {sic) is not, as a logical inference, thereby left to them. 
 
 And in vain now, to support their appeal, would they urge that 
 the statute so construed is unreasonable, unjust, inconsistent, and 
 contrary to the intentions of the law-giver ; uselessly would they 
 contend that to force them to contribute pecuniarily to the main- 
 tenance of the public non-Catholic schools is to so shackle the exercise 
 of their rights as to render them illusory and fruitless ; or that to 
 tax not only the property of each and every of them individually 
 but even their school buildings for the support of the public schools 
 is almost ironical ; uselessly would they demonstrate the utter im- 
 possibility for them to efficaciously provide for the organization, 
 maintenance and management of separate schools, and the essential 
 requirements of a separate sciiool system without statutory powers 
 and the necessary legal machinery ; ineffectively would they argue 
 that to concede their right to separate schools and withal deprive 
 them of the means to exercise that right is virtually to abolish it, or 
 to leave them nothing of it but a barren theory. With all these and 
 kindred considerations, we here, in answering this consultation, are 
 not concerned. The law has been authoritatively declared to be so, 
 and with its consequences we have nothing to do. Dura lex, scd 
 lex, judex lion coiistitiiititr ad leges reformntidas. Non It'cetjiidtcibus 
 dc legihtts Judicnre, sed sectmdiiin I'pstis. The Manitoba legislation 
 is constitutional, therefore it has not affected any of the rights or 
 privileges of the minority ; therefore the minority has no appeal to 
 the federal authority. The Manitoba legislature had the right and 
 
 f)0wer to pass that legislation, therefore any interference with that 
 egislation by the federal authority would be ultra vires and uncon- 
 stitutional. 
 
Manitoba School Case, 1894. 
 
 157 
 
 The Lord C hancclhr. That is a very wide exti'iision, 
 as it Keeins to mo, or rather a broad interpretation of 
 wliat was deei(h'd l)y this Board in that case. 
 
 Mr. Blake. Yes, I ([iiarrel very much with this Judg- 
 ment. 
 
 ]jor<l ]\\its(»i. I lliink it mii»ht be more briefly stated 
 in the proposition. — A minority has no rights. 
 
 Mr. ]il<ikc. His Lonishij) did not like to say your 
 liordships had (h-eided that in so many words. 
 
 The Lord Chance/for. Then lie goes on to discuss that. 
 
 Lord ]\'titsou. It is applicabl(> to either view of the 
 case. As I read these remarks they are equally appli- 
 cable. 
 
 Mr. Blake. Then they mnst be very admirable remarks. 
 I take up now the first of these questions. Does the right of 
 appeal claimed by the Petitioners exist under Section 22 of the 
 Manitoba Act ? And here again, in my opinion, the answer must 
 be in the negative for the reason that it is conclusively determined 
 by the Judgment of the Privy Council that the iManitoba legislation 
 does not prejudicially affect any right or privilege that the Catholics 
 had by law or practice at the Union, and if their rights and privi- 
 leges are not affected there is no Appeal. 
 
 The Lord ('ha)icellor. I suppose ho is right in saying 
 that the decision does not go that length it' sub-section 2 
 only applies to Acts ad'ecting rights existing prior to the 
 Union. 
 
 J/r. Blake. 1 quite agree. 
 
 The Lord Chancellor. And that, I tlnnk, is his hypo- 
 thesis ? 
 
 Mr. Blake. I think so. His liypothesis is that the 
 Section we are now dealing with has to do only with 
 rights and ])rivil(.'ges (\-:'sfing at the Union. 
 
 Lord Watson. The IcariK'd Judge is in error in saying 
 that the Jndguient of the Privv Council determhies any- 
 thing to the eti'eet he states. It would be conclusive to 
 that effect I ([uite admit ii" you add to the Judgment of 
 the Privy Council in tlu' Winnipeg ease the further 
 decision that the provision as to Ap[)eals under sub- 
 section 2 agaiust Acts of Legislature only applies to 
 those Acts of the Legislature which fall under sub- 
 section 1. 
 
 Mr. Blake. Yes. 
 
 Lord Watson. Unfortunately, we did not decide that. 
 That is an open question. 
 
168 
 
 Manitoba School Ca8R, 1894. 
 
 ■\ 
 
 li 
 
 lit 
 
 Lord Shaml. I iliink you n-ot in tlio next. Hontcnco 
 exactly wliaf tlio Lord CJlumcellor liiis said. 
 
 Mr. Blahe. 
 
 The rights and privileges mentioned in sub-Secti^in 2 of Section 
 22 are the same rights and privileges that are mentioned in sub- 
 Section I that is to say, those existing at the Union upon which sub- 
 Section 3 provides for the interference in certain cases of His Ii)xcel- 
 lency the Governor-Cieneral in Council, and it is as to such rights 
 and privileges only that an appeal is given. The appeal given in the 
 other Provinces bj' section 93 of the British North America Act as 
 to the rights and privileges conferred on a minority after the Union 
 is, as I have remarked, left out of the Manitoba Constitution. As- 
 suming, however, that the Manitoba Constitution is wide enough to 
 cover an appeal by the minority 
 
 Here I. quarrel very nmcli with Iiia Lordship's judg- 
 lueiit — 
 
 upon the infringement of any of their rights or privileges created 
 since the Union, or assuming that Section 93 of the British North 
 Amercia Act sub-Section 3 applies to Manitoba, I would be inclined 
 to think that, by the ratio decidendi of the Privy Council there are 
 no rights or privileges of the Catholic minority that are infringed by 
 the Manitoba legislation so as to allow of the exercise of the powers 
 of the Governor-in-Council in the matter as the Manitoba Statutes 
 must now be taken not to prejudicially affect any right or privilege 
 whatever enjoyed by the Catholic community. 
 
 Your Lordships (U'cided no sucli thing. Your Lord- 
 ships decided that tliey did not att'cct any riglit or 
 privih'gcs enjoyed by the Catiiolic connnunity at the 
 time of the Union, whicli was the only (piestion beibrc 
 you, and was so stated by your Lordships. 
 
 Lord Watmn. What the learned Judge means U) say 
 rightly or wrongly, is that that which was not a right or 
 privilege before cannot be a right or privilege after. It 
 does not at all follow there would not havi^ been a right 
 or priviK\ge if tluu'c had been prior to 1870 the same legis- 
 lation in Manitoba that there was between 1870 and 18i)0. 
 
 The Lord (Chancellor. 1 should have said reading the 
 Judgment on this part of that previous case that if there 
 had been such legislation the ratio decidendi would have 
 indicated that the Act of i8'J0 would have been void. 
 
 Mr. Jilake. C'ertainlv tiiat is the whole arii'umcnt of 
 the case, and 1 hold that that is to be deducecl I'rom the 
 statement by your Lordships of the character of the 
 legislation. 
 
 i 
 
Manitoba School Case, 1894, 
 
 159 
 
 It would seem, no doubt, by the language of botli Section 93 of 
 the British North America Act and of Section 22 of the Manitoba 
 Charter, that there may be provincial legislation which though int)a 
 vires, yet might affect the rights or privileges of the minority so as 
 to give them the right to appeal to the Governor-in-Council. For 
 it cannot be of iiltrn I't'rcs legislation that an appeal is given. And 
 the Petitioners properly disclaiming any intention to base their 
 application on the unconstitutionality of the Manitoba Statutes, 
 even for infringement of rights conferred upon them since the Union, 
 urge that though the Privy Council has determined that the legisla- 
 tion in question does not affect the rights existing at the Union so 
 as to render it ultra tires yet that it does affect the rights conferred 
 upon them by the Provincial Legislature since the Union, so as to 
 give them though intra I'trrs, an appeal to the (jovernor-in-Council. 
 I fail to see, however, how this ingenious distinction, for which I am 
 free to admit, both the Uritish North America Act, aad the Manitoba 
 Special Charter give room, can help the Petitioners. I assume here 
 that the Petitioners have an appeal upon the rights and privileges 
 conferred upon them since the Union as contra-distinguished from 
 the rights previously in existence. The case is precisely the same as 
 if the present appeal was as to their rights existing at the Union. 
 They might argue that though the Privy Council has held this legis- 
 lation to have been I'/itra vires, yet their right to appeal subsists, and, 
 in fact exists because it is intra vires. But what would be this 
 ground of appeal ? Because the legislation affects the rights and 
 privileges they had at the Union. And the answer would be one 
 fatal to their appeal, as it was to their contentions in the Barrett 
 case that none of these rights and privileges have been illegally 
 affected. Now, the rights and privileges they lay claim to under the 
 provincial legislation anterior to 1 8qo are, with the additions ren- 
 dered necessary by the political organization of the country to enable 
 them to exercise these rights, the same in principle, that they had 
 by practice at and before the Union, and which were held by the 
 Privy Council not to be illegally affected by the legislation of 1890. 
 
 TJic Lord Cluuivellor. This Jjoartl said there was 
 really no practice bel'ore the Union, which could bt? said 
 to ^\\'{i any right to avoid taxation. 
 
 ^fr. Blal'c. It was all voluntary and by individual 
 action. 
 
 Tlie Lord C/i(inrc'//or. Any practice in the nature of 
 law governinij,' the scliool rates. 
 
 J/r. lUalx-e. That was the trouble, 
 legal organisation of any kintl but 
 connnon right ol' A. and I>. and (J. 
 faith, to subscribe together for the education of their 
 children. 
 
 Lord Watson. There was no positive law, and there 
 was no practice having the force of Uw. 
 
 There was no 
 he exercise of a 
 who were of one 
 
Ill' 
 
 160 
 
 Manitoba School Case, 1894. 
 
 il/r. 7i/ffl/.e. That was all 
 
 Ihe Lord Chnncel/or. And !'irtlier what was said was 
 that whatever the t'ffect of the practice was that was loft 
 untouched, that if all that existed was power to suh- 
 scribe to schools of their own, and ])ay for them, that 
 ])Ower r(!inained — that is the ground. 
 
 Air. Jilake. That is the ground of the di'cision. ]>ut 
 you have a series of statutes now creating the rights and 
 privileges your Lordships have described, and you have 
 got an Act which your J-.ordshi])s have described in that 
 judgment as sweeping away all those rights and privi- 
 leges, and yet his jjordship finds himself constrjdned by 
 the effect of the decision of the Privy Council to decide 
 obviously contrary to what would have been his view 
 otherwise. 
 
 Tlie Lord Chancellor. He did not like the decision of 
 the Privy Council. 
 
 Mr. JJlal-e. That is tolerably obvious. 
 
 The Lord Chancellor. And it may have looked blacker 
 to him than it really was. 
 
 Lord Watmn. It is not quite correct to say that what the 
 Board held in the Winnipeg case was that these privileges 
 and rights at the Union had not been illegally affected. 
 What the Board determined was that they had at that 
 date no privileges which were capable of being affected. 
 
 ^^r. lilale. 1 !ini not certain about that. 
 
 Lord Watson. They were not i)ossesse(l of any privi- 
 leges within the meaning of sub-section 2. 
 
 Mr. Jilake. Jt was not before your L(U'dship to decide, 
 but a questi(m of this kind might have arisen. Sup- 
 posing there had been subsecpient legislation prescribing 
 voluntary denominational schools. Jt is very absurd to 
 suppose it, for the considerations I have already stated ; 
 but I can conceive a right or privilege of that kind being 
 violated if we were not living at the close of the nine- 
 teentli century. Then he says : — 
 
 The Petitioners, it seems to inc, would virtually renew their im- 
 peachment ol the constitutionality ot the Manitoba legislation of 
 1890 upon anotiicr ground than the one taken in the Barrett case, 
 namely upon the rights conferred upon them since the Union, whilst 
 the controversy in the Barrett case was limited to their rights as 
 they existed at the Union. But that legislation, as I have said, is 
 
Manitoba School Case, 1894. 
 
 161 
 
 irrevocably held to have been intra vircs^ and it is not to the Peti- 
 tioners to argue the contrary even upon a new ground. And if it is 
 vitrn vires it cannot be that it has illegally affected any of the rights 
 or privileges of the Catholic minority, though it may be prejudicial 
 to such right. And if it has not illegally affected any of those rights 
 or privileges they have no appeal to the Governor-in-Council. 
 
 It has been earnestly urged, on the part of the Petitioners, in their 
 attempt to distinguish the two cases, that in the Barrett case it was 
 only their liability to assessment for the public schools that was in 
 issue, and consequently that the decision of the Privy Council, bind- 
 ing though it be, does not preclude them from now taking on appeal 
 from the provincial legislation of 1890, the ground that this legisla- 
 tion sweeps away the Statutory powers conceded to them under the 
 previ us Statutes, and without which their establishment and ad- 
 ministration of a separate «chool system is impracticable. But here 
 again it must necessarily be on the ground that these rights and 
 privileges or some of their rights and privileges have been prejudici- 
 ally affected that they have to rest their case, and from that ground 
 they are irrevocably ousted by the Judgment of the Privy Council, 
 where not only the Assessment Clauses thereof were directly in 
 issue, but each and every one of the enactments of the Statutes im- 
 pugned, were as I read that Judgment, held to have been and to be 
 intra ri^cs. 
 
 Of course tliev wore. 
 
 The Lord Chancclhr. Tlicro is some little inconsistency, 
 is there not, because I think in a ])revi()us part the 
 learned Ju<l<^'e said that the Appeal was in cases where 
 it was intra fires, but it was not conlined to that case. 
 
 Mr. Blake. There is some part of his eJudgment which 
 seems to be a sort of excrescence in which he does say 
 that :— 
 
 Were it otherwise, and could the question be treated as res intefi^ra 
 it might have been possible for the Petitioners to establish that they 
 are entitled to the Appeal claimed on that ground, namely, that the 
 Statutes of 1890, by taking away the rights and privileges of a Cor- 
 porate body vested with the powers essential to the organization and 
 maintenance of a scliool system that has been granted to them by 
 the previous Statutes are subversive of those rights and privileges 
 and prejudicially affect them. 
 
 They might cogently urge in support of that proposition, and 
 might perhaps have succeeded to convince me, that to take away a 
 right, to cancel a grant, to repeal the grant of a right, to revoke a 
 privilege, prejudicially affects that grant, prejudicially injuriously 
 affects that privilege. They might also p'*rhaps have been able to 
 convince me that the license to own real estate, the authorisation to 
 issue debentures, to levy assessments, the powers of a Corporation 
 that had been granted to them, constituted for them rights and 
 privileges. And to the objection that no appeal lies under Section 22 
 
' } 
 
 ' f 
 
 162 
 
 Manitoha School Cask, 1894. 
 
 of the Manitoba Charter, but upon rights existing at the Union, 
 they might perhaps have successfully answered, either that Section 93 
 of the British North America Act extends to Manitoba, or, if not, 
 that the legislation of Manitoba in the matter, since the Union, 
 prior to 1890, shouW be construed as declaratory of their right to 
 separate schools, or a legislative admission of it, a legislation required 
 merely to secure to them the means whereby to exercise that right 
 and that consequently their appeal relates back to a right existing at 
 the Union so as to bring it, if necessary, under the terms of vSec- 
 tion 22 of the Manitoba Union Act. 
 
 However, from these reasons the Petitioners are now precluded. 
 If any of their rights and privileges had been prejudicially affected, 
 this legislation would be tt/tm rirrs, and it is settled it is not u//ni 
 vires. And the argument against their contention is very strong, 
 that it being determined that it would have been in the power of the 
 Manitoba Legislature to establish in 1871, at the outset of the 
 political organization of the Province, the system of sjhools that 
 tliey adopted in 1890 by the Statutes which the Petitioners now 
 complain of, it cannot be that by their adopting and regulating a 
 system of separate schools, though not obliged to do so, they for ever 
 bound the future generations of the Province to that policy, so that 
 as long at least as there would be even only one Roman Catholic 
 left iij the Province, the Legislature should be, for all time to come, 
 deprived of the power to alter it, though the constitution vests them 
 with the jurisdiction over education in the Province. 
 
 There aa'aiii, of course, there is a most extreme view 
 
 taken oi" the meaning to be attached to the h'o-jslation. 
 
 The Appeal is not taken away. The Appeal is subsisting. 
 
 Lord Wat.son, This is merely the conclusion, granting 
 his premises. 
 
 Afr. Blahe. Yes, my Lord. 
 
 To deny to a legislative body the right to repeal its own laws it 
 may be said is so to curtail its powers that an express article of its 
 constitution must be shown to support the proposition, it is not one 
 that can be deductively admitted. If this legislation of 1890, it may 
 still be further argued against the Petitioners' contentions, had been 
 adopted in 1871, it would, it must now be conceded, have been 
 constitutional, and that being so, would the Catholic minority then, 
 in 1 87 1, have had a right of appeal to the Governor in Council ? 
 Certainly that is partly the same question in a difl'erent form. But 
 it demonstrates, put in that shape, that the Petitioners have now no 
 right of appeal. 
 
 Of course things are j^ist the reverse. 
 
 Lord Shaiid. The general ground of the Judgment 
 seems to bo tho decision of this Board. 
 
 Mr. Blahe. Yes, it is perfectly obvious that if it had 
 not been for an inaccurate conclusion 
 
 Lord Watfon. "What is given in one sub-section is 
 
Manitoha School Case. 1894. 
 
 163 
 
 entirely diffi^ront from what is given in the othei. It is 
 not in the nature o£ a privilege, but you have to give it 
 to them first. Is there nothing given you by hiw ? 
 
 }fr. BJnle. It is quite a different thing not to give, and 
 having given to take away. 
 
 Lord iVatmn. It is (juito a difterent thing getting a 
 priviK-.ge and glutting none. 
 
 Mr. BInhe. Then Mr. Justice Gvvynne sets out the 
 ([uestions and states the memorials and petitions at very 
 great length. Perhajjs your Lordships would hartlly 
 desire me to trouble you with them. That goes on at 
 ])age 190, where he makes a statement : — 
 
 The learned members of the Judicial Committee of the Privy 
 Council who advised Her Majesty upon the Appeals in the cases of 
 Barrett r. Winnipeg and Logan r. Winnipeg, adopting the evidence 
 of the Archbishop of St. Boniface as to the rights and privileges in 
 relation to denominational schools enjoyed by Roman Catholics 
 before the passing of the Manitoba Act in the territory by that Act 
 erected into the Province of Manitoba, say in their report : — 
 
 Lord Watsoii. He merely gives an account of it. 
 
 Mr. Blake. Yes, my Lord. Then \w, adds — 
 
 The judgment then summarily rejects the contention that the 
 public schools created by the Acts of I Hqo are in reality Protestant 
 Schools, and concludes in declaring and adjudging that those Acts do 
 not prejudicially affect the rights and privileges enjoyed by Roman 
 Catholics in the territory now constituting the Province of 
 Manitoba, prior to the passing of the Manitoba Act, taking those 
 rights and privileges to have been as represented by the Archbishop 
 of St. Boniface, and even assuming them to have been secured or 
 conferred by positive law, and so that they are not enacted in 
 violation of Section 22 of the Manitoba Act, but are within the 
 exclusive jurisdiction of the provincial legislature to enact. 
 
 Their Lordships of tiie Privy Council in Barrett r. Winnipeg, and 
 Logan r. Winnipeg put a construction upon this Section 22, which 
 independently is to my mind sufficiently apparent, but which I 
 quote as a judicial enunciation of their Lordship's opinion. They 
 say :— 
 
 " Their Lordships are convinced that it must have been the inten- 
 tion of the Legislature to preserve every legal right or privilege 
 with respect to denominational schools, which any class of persons 
 practically enjoyed at the time of the Ihiion." 
 
 The language of the Section is, I think, sufficiently clear upon 
 that point and all its sub-sections are enacted for the purpose of 
 securing the single object, namely, the preservation of existing 
 rights. 
 
 Lord WaUon. The then existing rights. 
 
164 
 
 Manitoha School Cask, 1894. 
 
 Mr. Blal'e. Yck, that Ih the koy note of his Ijordship's 
 jud^'niDnt. Then he proceedy to state the sect ion, ami 
 says : — 
 
 If any law should be passed in violation of the qualification con- 
 tained in the first sub-stction upon the general jurisdiction conferred 
 by the section to make laws in relation to education, that is to say 
 in case any Act should be passed bv the provincial Legislature pre- 
 judicially i:*Tectinfr any right or privilege with respect to denonii- 
 natioiv sch )ols which any class of persons had by law or practice in 
 liie ;" "Ninct at the Union, such an Act would be ii/tiui rircs of the 
 j^i. , ! ;. inl i^egislature to enact and would therefore have no force, 
 atid ris :; >vas to preserve these rights and privileges with respect to 
 d> ;iuna'.irial schools whatsoever they were which existed at the 
 time of tin ' .ion, that the 22nd Section was enacted, it is obvious, 
 I think, that it is against such an act of the Legislature and against 
 any decision of any provincial authority acting in an administrative 
 capacity prejudicially aflecting any such right that the Appeal is 
 given by the second sub-section, and so likewise the remedies 
 provided in the third sub-section relate to the same rights and 
 privileges, and to the better securing the enjoyment of them. 
 The second and third sub-sections are designed as means to 
 redress any violation of the rights preserved by the section. 
 To subject any act of the legislature to the Appeal provided in tlic 
 second sub-section and to the remedies provided in the third sub- 
 section it is obvious that such an Act must be passed in violation of 
 the condition subject to which any jurisdiction is conferred upon the 
 provincial legislature to make laws in relation to education, and 
 must therefore be ultra n'rcs of the provincial legislature, for the 
 language of the section expressly excludes from the provincial 
 legislature all jurisdiction to pass such an Act. The jurisdiction, 
 whatever itj extent may be, which the provincial legislature has 
 over education being declared to be exclusive there can be no appeal 
 to any other authority against an Act passed by the legislature under 
 such jurisdiction and any Act of the legislature passed in violation 
 of anj- of the provisions in section 22, subject to which the juris- 
 diction of the legislature is restricted is not within their jurisdiction 
 and is therefore iiltrn n'rcs. The appeal, therefore, which is gi\en 
 by the second sub-section must be only concurrent with the right of 
 all persons injuriously affected by such an Act to raise in the 
 ordinary Courts of Justice the question of its constitutionality. 
 
 Here your Jjonlships are cited again. 
 
 If any doubt could be entertained upon this point it is concluded 
 in my opinion by their Lordships of the Privy Council in Barrett r. 
 Wimiipeg and Logan v. Winnipeg (1S92 A.C. 445) in the following 
 language : — 
 
 "At the commencement of the argument a doubt was suggested as 
 to competency of the present appeal in consequence of the 
 so-called appeal to the Governor-in-Council provided by the Act, 
 but their Lordships are satisfied that the provisions of sub-Sections 2 
 and 3 do not operate to withdraw such a question as that involved 
 
Manitoha School Cabk, 1894. 
 
 165 
 
 iirtlic present case from ihe jurisdiction ot the ordinary tribunals of 
 the country." 
 
 I am ([uite certiiin lliero vvjih no iiilLMition oriimkino- any 
 (K'livt'i'iincc wlialovcr n[)()n \hv (pioslion we now havo, 
 anil llial no siicli (IcllNcranco was at any rale niadt^ liy 
 llic passaoc I li;ivu now cited. I cited it in elVcct I'oi' Ihe 
 jjurpose oi" idiewin^- tliat the (yonrt indicated nit her a 
 feanino- the oth(>r way, lint not more 
 
 If an Act of the provincial legislature which is impeached upon 
 the sugjfestion of its prejudicially affecting such rights and privileges 
 as aforesaid is not made by the 2nd section of the Manitoba Act, 
 ti/tni vires of the provincial legislature, it cannot be open to appeal 
 under sub-Section 2 of that section. The sectioi' does not profess 
 to confer upon the executive of the Dominic i,. Mie Dominion 
 Parliament any power of interference whatevf.i v • any Act in 
 relation to education passed by the provincial 1 isla. ■ of Manitoba 
 which is not open to the objection of prej .(ii 'lily affecting some 
 right or privilege with respect todenominat' .. ' si. '.ools, which some 
 class of persons had by law or practice in tln' prv nee at the Union 
 
 lUit it docH not lU'oi'eyK to ahcr ^ at. all. That way 
 the phrase in the iirst. Tin; phrut. ,s omitted in the 
 second, and his Lordship says it does not. profess to do 
 the thing which 1 snbmit it does j^rol'ess to do. 
 
 All Acts of the provincial legislature not open to such objection arc 
 di.'clared by the section to be within the exclusive jurisdiction of the 
 provincial legislature , and as the Acts of 1890 are declared by their 
 Lordships not to be open to such objection and to have therefore 
 been within the jurisdiction of the provincial legislature to pass, 
 those Acts cannot, nor can either of them, be open to any appeal 
 under the 2nd sub-section of this section. 
 
 It has been suggested, however, that the rights and privileges 
 whether conferred or recognised by the Acts of the Legislature of 
 Manitoba in force prior to and at the time of the passing of the Acts 
 of 1890, and which were thereby repealed, were within the protection 
 of the 22nd section and that this was a matter not under considera- 
 tion in Barrett ?'. Winnipeg and Logan v, Winnipeg, and that 
 therefore the right of appeal under sub-Section 2 of the 22nd 
 Section against such repeal does not exist, notwithstanding the 
 decision of the Privy Council in Barrett ?'. Winnipeg and Logan 
 V. Wimiipeg. This contention appears 10 liave been first raised 
 expressly in the Petition presented in October 1892, although it is 
 impiiedly comprehended iu the paragrapl'.s of the Petition of April 
 1890 which is repeated verbatim in that of October 1892, wherein 
 the Act of the provincial legislaturt; ')f 1871 is relied upon as 
 having had the effect to continue to the Roman Catholics that 
 separate condition with reference to ecii'ca^ion which they had 
 enjoyed previous to the creation of "^lie Province, and in so far as 
 Roman Catholics were concerned merely to organize the efforts 
 
166 
 
 M..NITOHA School Cask, 1894. 
 
 which the Roman CathoHcs had previously voUiutarily made for ihe 
 education of their own children and for tiie continuance of schools 
 under the sole control and manaj^ement of Koman Catholics and ol 
 the education of their children according to the methods hy which 
 alone they believe children should he instructed. 
 
 But this Statute of 1H71 and all the Statutes passeil by the legis- 
 lature of Manitcjba in relation to education prior to iHqo were 
 specially brought under the notice of their Lordships of the Privy 
 Council, and were fully consid'jred by then, in their judgment as 
 already pointed out, and if the lepeal by the Act of 1X90 of the Acts 
 of the Provincial Legislature tlien in force in relation to education, 
 constituted a violation of the condition contained in section 22, 
 subject to which alone the jurisdiction of the Provincial Legislature 
 to make laws in relation to education was restricted, it is inconceiv- 
 able to my mind that their L')rdships having all these Statutes before 
 them could have pronounced the Acts of 1890 to be within the 
 jurisdiction of the Provincial Legislature to pass. 
 
 7hc Lord. Chnnrc'/hr. 'I'liat is (inito right, so they did. 
 They did not coiiBider that a viohition ol'tho conditiouH. 
 The condition refbrred to is in sub-section 1. 
 
 Mr. Blake. Certainly. 
 
 I'he Lord Chance' lor. If tliat sub-section is only a 
 remedy I'or sub-section 1 cadet quaestio it is settled by 
 the previous decision. 
 
 Mr. Blake. I (luite agree. 
 
 Lord Watson. We did not decide, and I do not tliink 
 we necessarily laid down or found by our Judgment 
 that the Act was intra vires and effectual but simply that 
 it did not sin against sub-section 1. 
 
 Mr. Blake. Your Lordships thought that it was not 
 idtra rires, and you expressly stated that you doubted 
 whether it was permissible in considering the question 
 beiore you to look at the course of intermediate legis- 
 lation. That is expressly stated, and yet he says that, 
 although your Lordships adjudge that it is not permis- 
 sible to look at the course of intermediate legislation, 
 you were looking at it and deciding on it. . 
 
 Lord Watson. There is a want of discrimination 
 occasionally between what we do decide and what 
 would be the logical result of our decision if you were 
 to take in connection with it one or two propositions 
 established by the Judges themselves and not by us. 
 
 Lord Shand. The Learned Judge could scarcely have 
 intended to mean those words to refer to the Act of 1890. 
 
Mamtoha School Cask, 1894. 
 
 167 
 
 Mr. lihthc. Tt Ih Honii'wliat (lifTioult to hui)[)()8c that ho 
 f'onid have read tho docision, and have written those 
 words wliieh lie lias written. 
 
 fji)ril Watson. \ (h) not lliink tl»e IJoard liave the h'aHt 
 viglit to complain ol' the Judgment. It may be erroneoi'H 
 hnl tlicy s|);'ak of llic N)<j,'ical result of our Judgment, 
 and it would be the h»;^ical r(;suh, [ tliink, in most eascH 
 it' wo assumed additional hiw and facts. We are not 
 responsibh^ for that. The .Iiidgment is wliat we have 
 got to review and consider. 
 
 Mr. lilahe. Yes, my Lord. That is his Jjordsliip's 
 Judgment, and then we come to Air. Justice King. Ho 
 says : — 
 
 It may be convenient first to ti;^r.''d the constitutional provisions 
 respecting education as they affect tlie original Provinces 
 
 Then he states them, f tliink iliat a hirgo part of it 
 your Lorilships have already had a good deal too mucli 
 of. 
 
 Lord Watson. Did the learned Judge suggest any new 
 view or concur in tlu^ other vi<.'ws ? 
 
 The Lord dhancellor. You liad better read any parts 
 of his judgment you would like to read. 
 
 Mr. Jilake. Mr. Justice King's was a judgment which 
 favoured my view, and I should like your Lordships to 
 hear it. It will be a variety, at any rate. 
 
 The Jjord dhancellor. Yes, otherwise yon would have 
 accepted tho suggestion. 
 
 Mr. Blake. I hope not. My oftbrt beibre your Lord- 
 ships is to give you all the assistance that 1 ought to 
 give you. 
 
 Lord WaUon. Then Mr. Justice Fournier and Mr. 
 Justice King are those in your favour ? 
 
 Mr. Blake. Those are the Justices in favour of my 
 argument. The liOarned Judge points out that the 
 3rd sub-section of secti<m 1)3 and the 2nd sub-section 
 of section 22 deal with a like subject the right of a 
 religious minority, and so on. Then 1 will go to page 
 li)H, line 33, which is where I think tho substantial part 
 connuenees. 
 
 One difference is, that whereas by the clause in the British North 
 America Act the appeal lies from an " act or decision of any pro- 
 vincial authority " affecting any right or privilege of the Protestant 
 or Roman Catholic minority in relation to education, in the Mani- 
 
168 
 
 Manitoba School Cahe, 1894. 
 
 , t 
 
 toba Act the appeal lies from "any act or decision of the legislature 
 of the province" as well as from that of any provincial authority. 
 This was either an extension of the right of appeal or the getting 
 rid of an ambiguity, according as the words " any nrovintial 
 authority " as used in the British North Ameiica Act did not nor 
 did extend to cover '' acts of the provincial legislature." 
 
 The addition to the first sub-section of the Manitoba Act of the 
 words "or practice" and the addition in sub-section 2 of the words 
 " of the legislature of the province," would (so far as the context of 
 these words is concerned) seem to show an intention on the part of 
 Parliament to extend the constitutional protection accorded to 
 minorities by the British North America Act, or at all events to 
 make no abatement therein. 
 
 Then there is another diflference between the language of the third 
 sub-section of the British North Amercia Act and that of the second 
 sub-section of the Manitoba Act. The former begins as follows : — 
 •' Where in any province a system of separate and dissentient schools 
 exists by law at the Union or is thereafter established by the Legis- 
 lature of the Province, an appeal shall lie," etc., while in the Mani- 
 toba Act the introductory part is omitted and the clause begins with 
 the words " an appeal shall lie," etc., the two clauses being thereafter 
 identical, with the exception that in the Manitoba Act (as already 
 mentioned) the Appeal in terms extends to complaints against the 
 effect of Acts of the Legislature as well as of Acts or decisions of 
 any provincial authority. 
 
 Alter this reference to points of distinction, I cite sub-section 2 of 
 the Manitoba Act again in full for sake of clearness. 
 
 " An appeal shall lie to the Governor-General in Council from any 
 Act or decision of the legislature of the Province or of any Provincial 
 authority affecting any right or privilege of the Protestant or 
 Roman Catholic minority of the Queen's subjects in relation to 
 education." 
 
 On the one side it is contended that in order to give the appeal, 
 the rights or privileges of the religious minority need to have been 
 acquired and to have existed prior to and at the time of the passage 
 of the Act. On the other side it is contended that it is sufficient if 
 the rights and privileges exist at the time of their alleged violation 
 irrespective of the time when they were acquired. 
 
 Then tlioro is a considerable portion of Sir Horace 
 Davey's argument. 
 
 Lord Shand. You do not quite adopt that argument 
 now, I think? 
 
 Mr. Blake. No, my Lord. 
 
 llie Lord Chancellor. Sir Horace Davey was on the 
 other side ? 
 
 Lord Shand. Was he ? 
 
 Mr. Blake. Yes, he was on the other side. 
 
 The Lord Chancellor. You have to deal with case* 
 which are intra vires. You say they are clearly intra viresi 
 
Manitoba School Cahk, 1894. 
 
 169 
 
 Mr. Illakc^ YcH, my Lonl. Thru I l-o to pa^o 198 : — 
 In the Judgniciit their I.ordsliins say that * • • there wouKi he 
 a marked and very coiisidcrahle dilTercncc helwceii the corres- 
 ponding; clauses, it in the one case rights and privilejjes of 
 the rcliffioiis minority wrre recognized as subjects of protection 
 whenever acquired, while in the other case they were not recogni/ed 
 as subjects of protection, unless they existed at the tune of the i)ass- 
 iiig of the Constitutional Act. Not wantinjr to nut unilue stress 
 upon this, let us look at the clauses for ourselves. In sub-Section I, 
 .Nianitoba Act, thert; is an express limitation as to time, the rights 
 and privileges in denominational schools that are saved are such as 
 existed, by law or practice, at the I'nion. Hut in sub-Section 2 
 nothing is said about time at all, and the natural conclusion upon a 
 reading of the two clauses together is that with regard to the rights 
 and privileges referred to in the latter clause the time of their origin 
 is immaterial. Such also is the ordinary and natural meaning of 
 sub-Section 2 regarded by itself. Kead by itself, it e.xtends to cover 
 rights and privileges existent at the time of the act or thing com- 
 plained of. The existence of the right and not the time of its 
 creation is the operative and material fact. 
 
 The Lrrd (7t(inn'/lo)\ If all llial was inl('ii(U>(l by 
 Hiib-Seciion 2 is what, has bucii siio-m'sted l)V fliu Icanird 
 .hidges w1h)H(! Jiuminonts you have road, one woidd 
 rather havo oxpoctud. to iiiid liingiiao-o simply " aiVet'liiig 
 any such right or privilege as aforesaid." 
 
 J/r. Jilakc. Thai is the whole. 
 
 The Lord C/mticelfor. That is, according to theiu, 
 what it means. 
 
 JAr. Blake. Yes, My liord. That is the whole, and 
 they were shortening up the chiuse, as your Lordship 
 sees. The draftsman was shortening from the Ih'itish 
 North America Act. Wliy does he proceed to deal with 
 it in that wav ? 
 
 And this agrees with the corresponding provisions of the British 
 North America Act where sub-section i refers to rights, &c., 
 acquired before or at Union, while sub-section 3 in terms covers 
 rights, &c., acquired at any time. In any other view there was 
 learly no necessity to add the words " or any act of the legislature "' 
 It the remedial provision of the Manitoba Act, for such act would 
 be wholly null and void under sub-section i. 
 
 which is of course (luitc true. 
 
 There is indeed an undeniable objection to treating ns an appeal- 
 able thing the repeal by a legislature of an Act passed by it-elf. 
 Ordinarily all rights and privileges given by Act of riMliament are to 
 be enjoyed snd moc/o, and are subject to the impt'ed right of the 
 same legislature to repeal or alter if it chooses to do so. But thr, 
 fundamental law may make it otherwise. 
 
170 
 
 Manitoiia School Case, 1894. 
 
 11 
 
 i I 
 
 Tlion he cilcH tlio Lo^-islaiion and iho (Joiisliluliou of 
 the United Slates wliieli lias been already relerred to. 
 
 It is certainly anomalous, under our system ami theory of Parlia- 
 mentary power, that a legislature may not repeal o. alter in anyway 
 an AlI passed hy itself. 
 
 Still, weighty as this consideration is, 1 can give no other reason- 
 able interpretation to the Act in question than that, under the con- 
 stitution of Manitoba, as under the constitution of the Dominion, 
 the exercise by the Provincial Legislature of its undoubted powers 
 in a way so as to give rights and privileges by law to the minority 
 in respect of education lets in the Dominion Parliament to concur- 
 rent legislative authority for the purpose of preserving and con- 
 tinuing such rights and privileges if it sees fit to do so. 
 
 By the British North America Act it was not clear whether the 
 words " act or decision of any Provincial authority '' covered the case 
 of an Act of the Provincial legislature, or was confined to adminis- 
 trative Acts, but in the Manitoba Act the words explicitly extend to 
 an Act of that legislature, 
 
 Any ambiguity in sub-section 2 of the Manitoba Act is I conceive 
 to be resolved in the light of the corresponding provisions of the 
 British North America Act. As the provisions of the British North 
 America Act are to be applicable unless varied I think it reasonable 
 that ambiguous provisions in the special Act should be construed in 
 conformity with the general Act. 
 
 Passing, however, from it as a matter of construction it does not 
 seem rea.sonable that Parliament in forming in 1870 a constitution 
 for Manitoba intended to disregard entirely constitutional limita- 
 tions such as were three years before established as binding upon the 
 original members of the Confederation. On the contnry by the 
 addition of the words " or by practice " ni first sub-section, and of 
 the words "or any Act of the legislature " in the second sub-section, 
 and by the provision of Section 23 providing for the use of the French 
 and Knglish languages in the courts and legislature there is mani- 
 fested a greater tenderness for racial and denominational differences. 
 Further unless sj'j-section 2 has the meaning suggested the entire 
 series of limitations imposed by sub-sections i, 2 and 3 are entirely 
 inoperative. For the Judicial Committee has in effect declared that 
 no right or privilege in respect of denominational schools existed 
 prior to the union, either by law or practice, and therefore there was 
 nothing on which sub-section i could practically operate and as there 
 was clearly no system of separate or dissentient schoolsestablishedin 
 Manitoba by law prior to the Union, the provisions of sub-sections 
 2 and 3 are inoperate if the rights and privileges in relation to 
 education are to be limited to rigbts and privileges before the Union. 
 There is no doubt that this construction limits the powers of the 
 legislature and restrains the exercise of its discretion, but the same 
 thing may be said of the effect of an Appeal against '' any act or 
 decision of any provincial authority" in Nova Scotia or New 
 Brunswick, in case either of such provinces were to adopt a system 
 of separate schools. The legislature might not choose to pass the 
 remedial legislation necessary to execute the decision of the Governor- 
 
Manitoba School Case, 1894. 
 
 171 
 
 Cfcneral in Council and the Dominion Parliament could then exercise 
 its concurrent power of legislation, in eficct overriding the legislative 
 delcmination of the provincial legislature. The provision may be 
 weak one-sided as giving finality to achancelegislative vote in favt)ur 
 of separate schools inconsistent with a proper autonomy, and with- 
 out elements of permanence, but if it is in the constitutional system 
 it must receive recognition in a court of law. 
 
 Assuming then that clause 2 covers rights and privileges whenso- 
 ever acquired, the next question is as to the meaning of the words 
 "rights and privileges of the Protestant or Roman Catholic minority 
 in relation to education." Here again, I think, we are to go to 
 clause 3 of Section 93 British North America Act. I think that the 
 reference is to minority rights under a system of separate schools, 
 and that it is essential that the complaining minority should have 
 had rights or privileges under a system of separate or dissentient 
 schools e.xisting by law at the Union, or thereafter established by the 
 legislature of the Province. The generality of the words under 
 clause 2 of the Manitoba Act is to be explained by clause 3, section 93 
 British North America Act, and to have the same meaning as the 
 corresponding words in it. The two remaining questions then are : 
 Was a system of separate or dissentient schools established in Mani- 
 toba prior to the passage of the Manitoba Education Act of 1890 ? 
 And have any rights or privileges of the Roman Catholic minority 
 in relation thereto been prejudicially affected ? One of the learned 
 Judges of the Queen's Bench of Manitoba thus succinctly sunnnarises 
 the school legislation of Manitoba in force at the time of the passing 
 of the Act of 1800. 
 
 lite Lord ChanceUor. That we nL'(3tl not have. Then 
 you go to Uni! -ll ? 
 
 Mr. Blake. Yes, my Jjorcl. 
 
 Now, the system of education established by the Act of 18H1 was 
 not in terms and co nomine a system of separate or dissentient 
 schools, and if the constitutional provision requires that they should 
 be such in order to come within the Act, then the minorit}' did not 
 have the requisite rights and privileges in respect of education. As to 
 this, I have had doubts arising from the opinion that where rights 
 and privileges have no other foundation than the legislative authority 
 whose subsequent acts iii affecting them is impeached, the restraint 
 upon the general grant of legislative authority snould be applied 
 only where the case is brought closely within the limitation. At 
 the same time, we are to give a fair and reasonable construction to 
 a remedial provision of the constitution, and are to regard the sub- 
 stance of the thing. 
 
 Lord tiluind. 'I'hat seems to be the main point. When 
 you are asked vvh.'it the privilege is, I tliink it is that 
 wliich is mentioned there. 
 
 Mr. Blake. Yes, my Lord ; this set of privileges. I 
 do not sav " that " but " these," there are several of them. 
 
172 
 
 Manitoba School Case, 1894. 
 
 Now, the Roman Catholics were in the minority in 18H1, and are 
 still, and a system of schools was established by law, under which 
 they had the right to their own schools — Catholic in name and fact 
 — under the control of trustees selected by themselves, taught by 
 teachers of their own faith, and supported in part by an assessment 
 ordered by themselves upon the persons and property of Roman 
 Catholics, and imposed, levied and collected as a portion of the public 
 rates ; the persons and property liable to such rate being at the same 
 time exempt from contribution to the schools of the majority — i.e., 
 Protestant schools. This, although not such in name, seems to me 
 to have been essentially a system of separate or dissentient schools, 
 of the same general type as the separate school system of Ontario, 
 and giving therefore to the minority rights and privileges in relation 
 to education in the sense of sub-Section 2, Section 22, Manitoba Act, 
 and sub-Seciion 3, Section 93, British North America Act. 
 
 It is true that the schools of the majority were Protestant schools, 
 and that the majority had the same right as the minority ; but I do 
 not think that this renders the minority schools any the less essen- 
 tially separate schools of the Roman Catholics. In Quebec the 
 majority schools are distinctly denominational. 
 
 Then was the right and privilege of the Roman Catholic minority 
 in this system of separate schools prejudicially afTected by the Act 
 of 1H90 ? And if so to what extent. 
 
 Tlic Lord Chance/lor. Then they ([iiolc tho Judgniont 
 of the Judicial Committee ? 
 
 Afr. n/akc. Yes. 
 
 Lord Shand. It is worthy of noting', before you pass 
 on, thiit the Arclibishop. in tlie description of the 
 privik^ges (kies not (h>seribe anything Hke the privik^ges 
 wliich are k)und(.ul on here. 
 
 Mr. Jihihe. II:jw coukl lie ? He had none of them. 
 He was referring to the etmdition at the time of the 
 Union. That shows how much more we have got. 
 since. 
 
 Lord Shand. That is what distinguishes the two 
 cases. 
 
 The Lord Chancellor. Then T think the next passage 
 is on ]iage 202, lino 10. 
 
 Mr. JJlal'e. ^es, my Lord. 
 
 The question then is whether the language of their Lordships is 
 applicable to this st;Uc of things, and whether or not it can be said 
 (changing thei'^ Lordships' language to suit the facts) that the esta- 
 blishment of the national system of education upon an unsectarian 
 basis is so inconsistent with the right to set up and maintain, by the 
 aid of public taxation upon the denominational minority, a system 
 of denominational schools, that the two cannot co-exist, or that the 
 existence of the system of denominational minority schools (sup- 
 posing it still in existence) necessarily implies or involves immunity 
 
Manitoba SniooL Cask, 1894. 
 
 17.^ 
 
 two 
 
 from taxation for the purpose of the other. It rather seems to me 
 tliat IK reasonable system of legislation could consistently seek to 
 embrace these two things, viz. : the support of a system of denomi- 
 national schools for the minority, maintainable through compulsory 
 rating of the persons and property of the minority, and, second, the 
 support of a general system of unsectarian schools, through the com- 
 pulsory rating of all persons and property, both of the majority and 
 the minority. The effect of such a scheme wonld be to impose a 
 double rate upon a part of the community for educational purposes. 
 
 The logical result of this view would he that by the establishment 
 of a general non-sectarian system (as well as by the abrogation of 
 the separate school system) the rights and privileges as previously 
 given by law to the denominational minority in respect of education 
 were necessarily atTected. Of course the minority would obtain 
 equality by giving up their schools, but the present enquiry at this 
 point is whether a right acquired by law to maintain a system of 
 separate schools had been affected by an Act which takes away the 
 legal organization and status of such schools and their means of 
 maintenance, by the repeal of the law giving these things, and which 
 subjects the persons and property of the denominational minority to 
 an educational rate for general non-sectarian schools, instead of 
 leaving them subjected to an educational rate for the support of the 
 separate and denominational schools. It is true that by the Act of 
 l8Hi and amending Acts, the exemption was an exemption from con- 
 tribution to the Protestant schools, and the schools under the Act of 
 1890 are not Protestant schools, but the substantial thing involved in 
 the exemption under the Acts of 1881 and ameniling Acts was, that 
 the ratepayers to the support of the Catholic schools should not have 
 to pay rates for the support of the schools established by the rest of 
 tlK community, but should have their educational rates appropriated 
 sc^lelv to the support of their own schools. This was an educati(»nal 
 right or privilege accorded to them in relation to etlucatiou under a 
 system of separate schools established by law, which the Legislature, 
 if possessing absolute or exclusive autliority to legislate on the 
 subject of education without limitation oi' restraint, might very well 
 withdraw, abrogate or materially alter, but which under the con- 
 stitutional limitations of the .Manitoba Act can be done only subject 
 to the rights of the minority to seek the intervention of the 
 Dominion Parliament, througii the e.xercise of the concurre.it legis- 
 lative authority that thereupon becomes vested in such Parliament 
 upon resort being fust IkuI to the tribunal of the (iovernor-(n neral 
 in Council. 
 
 Although there are points of diflerence between this case a'ld what 
 would have been the case if the prior legislation of Man'ioba had 
 established a system of separate schools following precisely the 
 Ontario system, I cannot regard the differences as other than 
 nominal, and treat this case as though the Act of iS.Si and amending 
 Acts distinctly established a system of separate schools, gixiiig for 
 the general public a system of undenominational public schools and 
 to the Catholic minority the right to a system of separate schools. 
 In such case I Jo ni>t see how tiie passing of such an Act as the Act 
 of 1890 could fail to be said (by abolishing the separate schools) to 
 
174 
 
 Manitoha School Came, 1894. 
 
 aflfect the rights and privileges of the minority in respect of educa- 
 tion. With some change of phraseology and some change of method, 
 I think that what has been done in the case before us is essentially 
 the same. 
 
 If the clauses of the Manitoba Act are to have any meaning at all, 
 the}' must apply to save rights and privileges which have no other 
 foundation originally than a statute of the Manitoba legislature. 
 
 The constitutional provision protects the separate educational 
 status given by an Act of the legislature to the denominational 
 minority. The view that the effect of this is to restrain the proper 
 exercise by the legislature of its power to alter its own legislation is 
 met by the opposite view that there is no improper restraint if it is 
 a constitutional provision, and that in establishing a system of 
 separate schools the legislature may well have borne in mind the 
 possibly irrepealable character of its legislation in thereby creating 
 rights and privileges in relation to education. 
 
 Lord S/fdnd. \ uixlci'staiKi that tliis loanitMl Jii(lo-(> 
 takes the ijrovision as beiiio,' (juitt^ intra rirefi of tliis later 
 Act. 
 
 J/r. lihih'o. Certainly, my Lord. That concludes the 
 Judgments. 
 
 [Adjourned till to-morrow at 10.30.] 
 
 THIRD l)\Y.— TInn'.sd<n/, Drccmher 13, 1894. 
 
 The Lord ClianrolJor. IJelore ]trocoedin<»; with this 
 A])])eal, which arises on a I'd'erence i'roni tlu^ Ciovern- 
 nient of Canada, T cannot refrain from alluding to the 
 ])ainful event which lias (le])rived that conntry of its 
 chief minister. He had I'eceived at the hands of Her 
 Majesty a signal murk of appreciation of the iiii>li ser- 
 vices which he had rendered, He h;ul just been sworn 
 a mend)er of this Council. In a few minules the hand 
 of death Vvas npoii him, and the country he served so well 
 has been dejjrived of his most valuable^ aid. This is not 
 the time or ])lace for (udooy or for an estimate of tlu,' 
 services he rendered, but in the oreat trouble which has 
 fallen upon the Doun'nion of Canada, I desire on behalf 
 of myself and my colleagues to express our deep 
 sympathy with the government and peoT)le of that 
 coimTry, and to associate ourselves with their sorrow. 
 
 li 
 
Manitoha School Cask, 1894. 
 
 175 
 
 }fr. liJake. Perhaps your Lordships will aUow nic, as 
 a resident of th :>t country to which your Lordship has 
 just alhided, to suy how grateful I am that your I^ord- 
 sliips have thouglit lit to say a word upon the very 
 tragic event which has o-'purred. and to assure; you tliat 
 I believe, without distinciiim of ])arty, the inhabitanis 
 of the Dominion of (Canada wiU rec(Mve with gratitude 
 the expression of sympathy wnl] a grief which they 
 entertain in common. 
 
 Mr. Eitmrt. .My iiords. \ desire to add ;i few words u])on 
 tiio two principal points in the case. 1' irst upon the 
 (piestion whether sub-section 2 was intendtul and devised 
 as a remedy merely for cases coming within sub-section 1. 
 In considering that question I think ii will bo perfectly 
 fair to regard the secti(m and the iirst sub- section as 
 declaring and limiting the jurisdiction of tlie Legislative 
 AssiMubly. They are both necessary for that purpose 
 and togt'ther they complete and linish the subject. The 
 section gives jurisdiction over the whole subject of 
 educj tion which may be represented (say) by the ligure 
 U. The tirst sub-section is a subtraction of certain 
 ])OW(!rs which may be represented by the ligure 1, 
 leaving the net result of 8 or 8-'Jtln' of education. It is 
 with this result — 8-l.Mhs of the edi.cation — that we pass 
 on to sub-section 2. The (piestion, then, is whether it 
 is fnmi the 8-Oths the net result, or from the l-Dtli, the 
 l)art subtracted, that the Appeal lies. I venture to t!:ink 
 that if any one who had never seen these Statutes were 
 asked from which of these he thought more probable 
 that an Appeal would be giN'en, he coi not hesitate to 
 reply that an Appeal would no doi be in respect 
 of those thhigs with which the Legislature was going 
 to deal, and he would be nuu:! surprised if he 
 were told that he was (piite wr"iig, that extensive 
 powers (jf appeal were to I giN'i'ii from tlie 
 liCgislatiire in resptu-t of siibjt cis over which the 
 Legislature had no control and with which jnvsumably 
 it would never in all time to come attempt to deal. If 
 the Statute had been giving jurisdi(;tion to a C()urt, 
 instead of to a political body, 1 do not think there; could 
 be any doubt as to the construction. Tf a Statute gave 
 to a Court jurisdiction, say, in matters of debt, and pro- 
 
176 
 
 Manitoba School Case, 1894. 
 
 vi(U'(l lliiit it nhoiild not liiivo jurisdiction if over £1,000 
 vvcro invol\{ul, and then an Ap])('al was ^-ivon I'roni any 
 decision att'cctin^' anybody's nglits, I tliink there could 
 1)0 no reason to doubt thai an A])poal was 1'roni t]u)sc 
 matters wliich were within tlie jurisdiction of the Court 
 and not from tliose wliich wei'c^ witluh'awn I'rom that 
 jurisdiction. The only appearance of dillicuhy, as it 
 seems to me, arisi's from \\\v superlicial resend)lauc(> 
 between the lano;ua<;"(Mis(^d in limiting" tlie jurisdiction, 
 and \\w hmguag'o used in (h'scril)ing' the cireumstauces 
 under which an Appeal will lie. Roughly it may he 
 said, if riglits are ailected, then there is ?f/trn rives, and 
 roughly again, if rights are affected, then there is an 
 AppeaL l'>ut the language is iu)t identical. Jf it were 
 itlentical avo should be then loft to imagine how we 
 could possibly succeed upon an A])])eal in convincing 
 His Excellency that an ti/ir(( r/res Statute had ailected 
 us, and how possibly we were in need of legislation to 
 remedy something which resdly had not hapjx'iiec^ l)Ut 
 the hmguiige, as is pointed out by my learned leader, is 
 very far from identical. On the <-ontrar; , as it sccnis to 
 mo as he has ])oint'i'. out, it is in ahnost ev(!ry point of 
 view in contrast ; foi" instance, if wo are to ask who is 
 to complain or who miiy complain under tlie dilTerent 
 sub-sections, the answer is that anybody can com|ilaiyi 
 under t lie lirst sub-section. The Statute is fi/tni r/n's ; 
 anyone can plead that tlu^ Act is u/tra r/'ycs ; anyone who 
 is brought into an Action in which that clauso comes in 
 (pu'st ion can contend that it is f(/tni rircs : but in Sul;- 
 
 scction 2 it is onlv a uuMubi'i 
 
 I uarticular rclurious 
 
 1 
 
 body, and then only in case that religi<.us body be in a 
 minority that anyone can ajjpeal. I say ilu- persons are 
 entirely dilVerent. Then, if we are to ask what riglits 
 o protected we iind aaain a contrtist. Undi^r Sub- 
 
 ar( 
 
 section! they are rights '"at the Union," under Sub- 
 section 2, "any rights," leaving out the words, "at 
 tlu^ Union ;" and then if one rt'gards the circumstances 
 under which C()m[)laint can be ma<le und<>r Sub- 
 
 se 
 
 ction 1, it is if 
 
 ri 
 
 rliti 
 
 wit 11 re 
 
 ■pect 
 
 to 
 
 denominational schools" have been " prejudicialiy 
 affected," and under Sub-section 2 it is if '' rights relat- 
 ing to education are affected." So with reference to 
 
Manitoba School Cask, 1894. 
 
 177 
 
 every olement tliere in more of contrast than there is of 
 identity. 
 
 Lord Watsoji. Sub-section 2 of Section 22, and Sub- 
 Roction 3 of Section 93, admittedly are different in 
 expression. Whether they are or are not substantially 
 identical, it seems to me not ^"'fin^ too hir to say we 
 have be(m shewn is a debateablo ciucstion. If the 
 lang'uage of Sub-section 2 is by itself intelligible^, and 
 free from ambiguity, wo have no occasion to solve that 
 (liiestion. 
 
 J\fr. E/rart. No. These two clausi^s are not associated. 
 The S(H'ti()n, and the iirst sub-secti(m together make up 
 the jurisdiction, and then we pass on to have an Appeal. 
 I am confining my reuiarks to the Manitoba Act at pre- 
 sent, and I am shewing the difference between the iirst 
 au<l the second sub-section. 
 
 Lord ]\''<itson. Whether thev differ in substances or not, 
 the ([uesiion still reuiains a question upon Sub-section 2 
 of the Act of 1870. If they differ in substance the one 
 tlu'ows no light on the other. '^ hey arj3 identical in 
 substance, the one may throw i.ght to lead you to the 
 conclusion that the two Legislatures meant the same 
 thing. But that do(}S not lu^lp you to construe the 
 Statute. 
 
 Mr. Ewart. No, I. admit all that. What I was trying 
 to do was to point out the point oi! contrast l)etW(;en the 
 sections ol" the jNIanitoba Act, showing that they had 
 nothing in common. I desire to point out that if that 
 was devised as a rcunedy for an ultra vires Statute, that 
 is the only example we have of such an extraordinary 
 remedy ; that yet there are plenty of cases of ultra vires 
 Statutes, and under the scope ot the Ihitish North 
 Anit'iuca Act there are clauses which would have invited 
 tlie provision of an Ap])eal if that wore thought to be the 
 best or proper way oi getting rid oL' an ultra vires 
 Statute. For instance, under Section 92 of the 
 Ih-itish North Ameri(.'a Act, Sub -section 10, 1 
 iind a clause worded in somewhat the same fashion ; 
 at all evcnis constructed on the same principles, namely, 
 the subject ot legislation given to the Trovincial Legis- 
 lature " Local Works and Undertakings " and then a 
 subtraction I'rom that wide gift, " Other than such as 
 
178 
 
 Manitora School Cask, 1894. 
 
 ! > 
 
 are of the Ibllowing classoH ; " an<l vol wo novor liavo 
 any ajjpoal, although it \h ])hun tluit I hat might hu 
 violated in tho nanu^ way aa this chiiiso might bo vio- 
 latoch On tho other hand wo have exam])h'S of appeal 
 somewhat at all events of tho same nature. 
 
 Lonl ]\'(tts()H. There are two eases in which I'esorl 
 may be had to the Tarliament of ('aiiada. 'l\\v ^irst is, 
 where provincial laws from time to time an* rcMpiisito 
 for the due execution ol' the section. The S(;cond is, 
 \vh 're any decision of the Oovernor-Cleneral on Ap])eal 
 is lot given elleet to by an Act. There are two 
 ditfeimt cases, and only two cases. They are put 
 alternatively in sub-section 3 ol' the ]\Ianitol)a Act. 
 Under tho second it is perfectly clear, and there can be 
 no doubt as to what is meant. The Governor-CJeueral 
 says that such and such an enactment must bi; modilied 
 or altered. If elfect is not given to that ordiiuiuce or 
 ruling ol" the (jovernor-Geni'ral by the Provincial l^egis- 
 latnre, then he may appeal to the Canadian j.egisliiture 
 — the Dominion Legislature to give effect to it, to do 
 what the I'rovineial Government ought in deh'renct^ to 
 tho Governor's ruling, to have done. Thi^ language 
 nsed seems to give bv the third sub-section to tlu^ 
 Canadian Legislature more than power simj)ly to repeal 
 a particular chnise of an Act, or to declare it null. 
 Perhaps we need not distress ourselves with that. 1 do 
 not know what to say that partu'ular provision points 
 to. They are empowered to pass laws which apj)ear to 
 the Governor General to be reiiuisite lor the due ex(!cu- 
 tion of the j)rovisions of the section. One of the things 
 which is to be done in due execution ot'lh(> seclion is to 
 avoid legislating to (!ertain ell'ects ])rohibiled by Sub- 
 section 1. 
 
 j\f)'. Kicart. In that ease there would be no ajipeal at 
 all. They would not reipiire to pass renu'dial legisla- 
 tion. 
 
 The Lord Chancellor. It seems to suggest I hat there 
 might be on the part of the Canadian Legislation some 
 prohibiiory Act. 
 
 Mr. EuHvrt. To take elfect in the future — that they 
 must not do so and so. It seems to me that the Appeal 
 lies only in case our rights have been alfected, and we 
 
Manitoba School Case, 1894. 
 
 179 
 
 i 
 
 havo to :sho\v, aH a ground for our Appeal, lliat Hoire 
 rip,'lita havo boon atroctcd. 
 
 Lord Watson. It may bo ; tlio lano;nap' is tolerably 
 wide ; remedial mea«nro8 obviously for ilu.i pnrpoKe of 
 proven! iii«;' any departure from the terms of this partiou- 
 ar elau8e. 
 
 Mr. Eirai-t. 1Mio first clause ? 
 
 Lord Watson. That includes the whole section. It is 
 the two preceding- clauses. 
 
 }fr. Kir'irt. My point is that the first relates to ultra 
 circs and the secoiul to intr<t vires, and that the third is 
 wide enouo'h to embrace both. Yet in its application it 
 is necessarily conlined to the second, because we could 
 only say it was aiK^ctinl by an intra vires statute. 
 
 I desire to ])oint out that this is not the first instance 
 of an appeal from an i7itra vires statute. Aly learned 
 I'ricud nuiy sii^-o-ost that it is somewhat of a novelty, but 
 I can g'ive at least two examples from our constitutional 
 history of something- at all events of the same natur(.'. 
 The very early Constitutional Act of 17U1, 'M Ceor<^'e III., 
 Cap. 31, Sec. 12, had ii provision Ibr the purj)ose of 
 safc<;'uardin<2,' the rights of jiersons with respect, (jf con- 
 trovi'rsial matters. It is a long si'ction, but the <iist of 
 it is to this olVect, that whenever anv bill shall be passcnl 
 containing any j)r()visions which shall in any manner 
 relate to or atlect the enjovmont or exercise of any form 
 or mode of religious worshi|), or shall impose or creat(3 
 any penalties, iV:c., in respect of the same, or shall in any 
 manner relat(! to or aU'ect the payment, recovery or en- 
 joyment of any of the aceustonu'd dues or riglits — the 
 royal assent was to be withheld for oO days after the 
 l>ill was laid beloi-c llu! I'aiiiament. 
 
 Lord Wdfson. Tlu' l'ro\incial rarliamcnt does not 
 hold (luiic the same relation to the I'ros ince as the 
 Donnnion does. . . i > 
 
 ^L'. Eicart. This was an Act of the Legislature of 
 Quebec. 
 
 TJie Lord Chancel/or. Vou are speaking of a case in 
 Appi'al in a nuitter intra vires f 
 
 Mr. Emtrt. Yes. ■.. ,. 
 
 Lord Shand. What followed bosffles that they were to 
 allow 30 days to elapse '^ 
 
180 
 
 Manitoba School Cask, 1804. 
 
 
 ( • 
 
 Mr. Ewart. Tlid asHcnt Hliall nol bo fijiven, in cjiho 
 oithor lIouHo addrcHS Ilcr Mujosty to witliliolil it. 
 
 Lord Shawl. Road tho roHt of llio chiiiHO. Tlio hmI)- 
 stanoo of it was that during tliat tinio thoro ini<;lit lie 
 an addrcHK proaoiitod. 
 
 Mr. En-art. Yos, within the .'U) dayK In fart, llicro 
 wonld 1)0 an Appeal to l»oth lloiiscs, (»i to cither IIoiihc^, 
 iroiM intnt rirrs Icn-ishition in ('anada mi(h'r tins Statute. 
 Your Lordsliips will liiid tlu; sanic provision, or one 
 almost identical with it, carried into tho Union Act ol' 
 1840 (3 and 4 Vic. C. 35, Soc. 42). That provision was 
 in force right down to (Jonfoderation. 
 
 Lord Watson. In both thoHo Statute's tho Imperial 
 Legislature seems to have laid down th<> rule for 
 Provincial or Canadian Legislation. 
 
 Mr. Eicart. Yes. 
 
 Lord Watson. That is quite within their con)petence. 
 The Dominion Pai'liamont hav(i, so lar as I can see, no 
 ])ower lo intorfoio with Provincial legislation ujxin the 
 subject of education, exoo])t in so far as it is given thorn 
 by those two clauses. 
 
 ^fr. Kicart. Quitc^ so. It is only an oxam])lo ol' the 
 right of Appeal given. 
 
 Lord Wat.'ion. A right o[ Appeal to the Governor, 
 and in a sense an Appeal to the Parliament ol" C'anada. 
 
 Mr. EicaH. The next liighest legislative power. 
 Another exam])l() nuiy l)0 given from tlie Pritish North 
 America Act. 
 
 Lord Wat.wn. The power given of Ap])eal to tho 
 Governnu'nt, and upon roipicst by tho Oovernor to tho 
 Legislature of Canada, seems to be wholly discretionar\ 
 in both. 
 
 Mr. I'hmrt. No doubt. 
 
 Ijord Watson. Both in the Governor and in the Legis- 
 lature, 
 
 Mr. LJimrt. Yes. Another examph^ I desire to give 
 is to bo found in Section !I5 of the British North America 
 Act where something in the nature of an Appeal was 
 given in connection with the subjects of " agriculture 
 and emigration." Legislative control is given to the 
 Legislatures in connection with those snbjects, but it is 
 provided that such legislation is only to have eflect in 
 
Manitoha School Cakr, 1504. 
 
 181 
 
 and for llio Province, as loii^;' and as lar otdy as in nol, 
 ropunnant to any Act ol' I'arliaMxmt ot'(/anada. Sotliat 
 it' any minority t'oiind itsolt' improju'i'ly dealt with or 
 liarsiily dealt with in any i'rovincc; there would he an 
 Appeal over to the Parliainenl ol'l'anada. 
 
 Lord S/kuh/. \ sMppos(i there is iKxiiieHlion upon this; 
 from sub-section li otthc Act o£ 18(17, there is no douht 
 that in sonic cases an Appi^al would lie to the Governor- 
 General Irom any Act or decision ol' the IVovincial 
 authority y 
 
 J/r. Eii-nvt. Yes. 
 
 Lord k^IkukI. 'V\\v. only (picstion is whether "Pro- 
 vincial authority " does or does not include the Legisla- 
 ture ? 
 
 Mr. Ewart, Y(>s. 
 
 Lonl W<tts()n. If it were clear that in stdj-s(>ction 4 ol" 
 Section 93 of the Ac! ol' 1867 the le,i;'islation ol" iho 
 Parliament of ('anada was not to extend to the subject 
 matter of Hub-suct ion I, il would be almost convincing 
 evidenct^ that tin* Provincial authority was m(>ant to 
 include the Provincial Legislature, because in that case, 
 on tlu^ assumption I j)Ut, what would be; (Ik^ use ol" in- 
 voking the power of the Dominion Parliament (except 
 for the purpose of over-riding Provincial legislation '? 
 
 Mr. Eirart. That is all. 
 
 Lord Watson. It is not eh'ar that sub-secti(m 4 does 
 not refer to legislation connected with sub-section 1. 
 The argument on the other sid(>, I understand, is that 
 the introdu'-tion of tlu* Dominion Parliament (and that 
 is the view taken by some members of the (^ourtj is to 
 be explained by reference to sub-section 1. 
 
 Mr. Eicaii. J was going to sunnnarize what I have to 
 say. The reasons I oiler are in the iirst place because 
 if 2 was inteniled us a remedy for 1, the language ol.' 2 
 would have been very ditferent. It would have been 
 " affecting any .wvh right." And if it had been thought 
 necessaiy to describe the rights again it would have 
 been done in the same language as before. (2) Jiecause 
 if 2 be a remedy, it would be given to the same persons 
 mentioned in 1. (3) Because if 2 is a remedy, it would 
 be given in respect of the same rights as L (4) be- 
 cause if 2 is u remedy, it would be given under the 
 

 
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 182 
 
 Manitoba School Case, 1894. 
 
 [Stances. (5) Because no such remedy is 
 respect of void Acts. (6) Jiecause such a 
 
 same circumstt 
 necessary m 
 
 remedy is wholly inappropriate — an appeal on a dry 
 legal cpiestion of n1tr<i vires to a political body without 
 any reason for its withdrawal from the Courts. (7) De- 
 cause no such remedy is given in respect of any other 
 ultra vires h'gislation. (8) liecause the reliel' to hegivcn 
 is not that which would follow upon an appeal from an 
 ultra vires act — remedial laws are to be nuide. If the 
 Governor-General thought an act ultra vires against 
 which we were appealing, ho would not re(|uest local 
 legislation to pass an act, and would not ask the Do- 
 minion Piirliament to legislate upon default, (D) — which 
 I think was suggested by the Lord Chancellor — because 
 if " provincial authority " does not include " legislatun,'," 
 then the Appeal given by the British North America 
 Act is clearly not a remedy for cases witliin 1 ; for in 
 that case there would be no appeal from an Act at all. 
 
 Lord Watson. The Governor might be of opinion to- 
 day or this year that it was not desirable in the interests 
 of the community that certain previous privileges given 
 by Parliament shoidd be repealed ; but ten years hence 
 he might be of a different opinion. If there were legis- 
 lation of a prohibitive kind included in this remedial 
 legislation, there would be an Act of Parliament in the 
 way of his exercising his discretion on the subject. 
 
 Mr. Eicart. He would have to exercise his discretion 
 to begin with to give Parliament jurisdiction. 
 
 Lord IVafson. Is there any further jurisdiction given 
 to the Dominion Parliament than to pass measures which 
 would give eftect to the opinion or determination of the 
 Governor upon points that are completely brought before 
 him by appeal. 
 
 Mr. Eicart. I should think not, 
 
 I now wish, my Lords, almost as shortly to summarize 
 the rensons why I contend that sub-section 2 applies to 
 post Lnion rights. In the first place, I point to the 
 generality of the Statute. It says " An appeal 
 shall lie to the Governor General from any Act," 
 and there is nothing in the section itself to limit 
 the generality of that phrase. It seems to be 
 the retiuisite of an appeal that some rights should have 
 
Manitoha School Ca8E, 1894. 
 
 183 
 
 existed, and it Is not material as to the date of their 
 birtli. Tlien I point out also in that connection the 
 absence oE the words •' at the Union." Thirdly 1 would 
 su<4'<i;"()st that the scope of the Act is to protect minorities, 
 and that not merely in respect oC rig'lits that are enjoyed 
 at the time of the Union ; but it is an Act whicli is in- 
 tended to last for a great length oC time. It might go 
 on lasting for ever, at all events for a great period of 
 time. In the course of time rights would no doubt be 
 very much changed, the whole system might undergo a 
 change in various respects, and it can hardly be, I should 
 submit, the intention that only rights conso'ved at the 
 Union were to be protected, although those rights would 
 have been supplanted by others which had been accepted 
 by all the denominations of the community, and which 
 were now held in substitution. It would be a bar to 
 tlu; acceptance of any charges of that kind, no matter 
 how beneficial if all safeguard was given up. It 
 seems to me therefore that the first sub-section 
 relates to pre-Union rights and the second to 
 post-Union rights. Then the fourth point I make 
 is that the corresponding section of the JJritish 
 North America Act, clearly applies to post Union rights 
 so far at all events as Nova Scotia and New Jirunswick 
 arc concerned. Then 1 would urgw also that this being 
 a constitutional Statute, and in so;.ne measure a Treaty, 
 a very large and a liberal interpretation ought to bo 
 given to the languages, rather than a narrow and subtle 
 construction, which would have the etfect of j)roducing 
 a nullity. 
 
 Before closing I would like to say a word or two as 
 to what we are seeking. As it has been already 
 remarked, we are not asking for any declaration as co 
 the extent of the relief to bo given by the Governor 
 General. We merely ask that it should be held that he 
 has jurisdiction to hear our prayer, and to grant us some 
 relief if he thinks proper to do so. It may be that the 
 l)(uninion Authorities may not choose to re-establish us 
 in all the rights and privileges which we enjoyed prior 
 to this Act of 18y0, although that was a system that had 
 been approved of by the more important religious 
 bodies, and ucciuiesced in by everybody, and it remained 
 
184 
 
 Manitoba School Case, 1894. 
 
 as a good working Act for a period of nineteen youra, 
 and although I may say also that that is the system, or 
 almost the system, which has existed in the Province of 
 Quebec for more than a quarter of a century. It may 
 be that the Dominion Authorities may prefer the 
 Ontario system, under which there is a closer Govern- 
 mental control — a system under which Government 
 control is very complete, under which books are cliosou 
 by the Government Inspectors appointed by Govern- 
 ment, and all school regulations are made by Govern- 
 ment. Or it may be that some other system may bo 
 devised which will enable the Roman Catholics to teach 
 in schools to which no Protestant child now goes, the 
 religion of its parents under limited circumstances, 
 without thereby being penalised by ostracism from the 
 public school provisions. We cannot tell, nor have I 
 come here instructed to state what the measure 
 of relief will be which will be asked if it 
 be held that the Governor General has juris- 
 diction to deal with the matter, but this much 
 I think I may properly say that we have no desire to 
 withdraw from the operation of State Statutory control. 
 That position we never did possess under the Manitoba 
 Statutes, and we do not seek — nor, indeed, can we ask — 
 to be placed in any better position than the position 
 which we occupied prior to the Act of 1890. 
 
 Mr. Cozens Hardy. My Lords, I appear with my 
 learned friends, Mr. Haldane and Mr. Bray, for the 
 Government of Manitoba, and although it will not be 
 necessary for me, I hope, to trouble your Lordships at 
 any very great length, having regard to the fact that all 
 the Judgments and almost all the documents have been 
 read to your Lordships, I am sure your Lordships will 
 pardon me in a case of so much interest and importance 
 to the Dominion if I think it my duty to put before you 
 in some detail the various points which arise. 
 
 My Lords, the point, and I submit the only point, 
 which is before your Lordships now may be divided 
 into two ; in the first place, is there any Appeal from a 
 post-Union intra vires Act of the Legislature, and next, 
 even if that be so, there is the further point whether tliis 
 post-Union legislation including in that term the Act of 
 
Manitoba School Case, 1894. 
 
 185 
 
 tl 
 
 10 
 
 1890 affects any right or privilege of the Protestant or 
 Roman Catholic minority of the Queen's subjects ? Both 
 those points have to be answered in the aflirmativo if 
 this Appeal is to succeed, 1 propose to suggest to your 
 Lordships tliat Section 22 of the Manitoba Act is the 
 only Section which has to be considered. It may be 
 right to refer to Section 9;} of the IJritish North America 
 Act, but Section 22 1 submit to your Lordships com- 
 pletely defines the power of the Legislature of Mani- 
 toba, and no part of Section 93 of the Act of 1867 is 
 operative in the sense of having express or definite 
 legislative effect. 
 
 Lord Watsoti. It was the intention of the l^egislature 
 to substitute in the case of Manitoba Section 22 of the 
 Act of 1870 for Section 93 of the Act of 1807. 
 
 Mr. Cozens- llardjj. Your Lordship has put the pro- 
 position which 1 am endeavouring to submit. That is 
 the view 1 take — Section 22 says this at the beginning 
 of it : " In and for the province the provincial Legisla- 
 ture may exclusively make laws in relation to education 
 subject and according to the following provisions." 
 Those are the provisions following in Section 22, and it 
 seems inconsistent with that to say that it is not only 
 subject and according to the following provisions, but 
 also subject and according to such provisions of Sec- 
 tion 93 of the British North America Act as in any way 
 are not identical. 
 
 Lord Watson. It might be suggested that in 1870 this 
 province is brought in the same way within the pro- 
 visions of the Act. 
 
 J'he Lord Chancellor. You mnst take it with this, 
 tluiu Section 93, unless there is reason shewn to the con- 
 trary, would prima facie be applicable to Manitoba. You 
 have to shew that Section 93 has been varied by the 
 Manitoba Act in order to make it inapplicable. It does 
 not rest on them to make it applicable ; it rests on you 
 to make it inapplicable by shewing that it has been 
 varied by the Manitoba Act. 
 
 Mr. Cozens- Hard jj. Is that (pute so having regard to 
 Section 2 ? Section 2 says : " The provisions of the 
 British North America Act, 1867, shall, except those 
 parts which are in terms made or by ri^asouable intend- 
 
186 
 
 Manitoha School Case, 1894. 
 
 ment may be held to bo Hpecially applicable lo or only 
 to affect one or more, but not the whole, of the ])rovinee8 
 now coinposhig tlie Dominicm." Section D^i does not 
 affect the whole oi' the provincen in tlu^ Dominion. 
 
 Tlic Lord Chancellor. Yes, surely. Section 2 says 
 " now composing,'' ^bat is at the tim.e that that Act was 
 passed. At that time Section 93 applied to the whole of 
 the provinces. 
 
 Mr. Cozens- Hardy. Snb-section 3 of Section 93 which 
 is the only material ])oint of difference, does not aj)ply, 
 because that is " where in any province a system of 
 separate or dissentient schools exist by law at the 
 
 IT " 
 
 Union. 
 
 The Lord (lianccUor. "Or is thereafter established." 
 That sub-section applied to all the provinces forming the 
 Dominion. 
 
 Air. Cozens- liar djj. There are no separatee /dissentient 
 schools in M.anitoba. 
 
 The Lord Chancellor. This has nothinfr to do witli 
 Manitoba ; " now composing the Union " did not include 
 Manitoba. It was the then provinces. Sub-section 3 
 applied to all the then provinces of the Dominion. 
 
 Mr. Cozens-IIerdy. No, I think my learned friend ad- 
 mitted that it did not. It did not apply to Nova Scotia 
 and New Brunswick. 
 
 The Lord Chancellor. Sub-section 3 clearly applies to 
 all the provinces of the Dominion. 
 
 Lord Watson. The Imperial Ijogislature in the Act of 
 1867 left niches to be filled by other provinces. As 
 soon as those other provinces came in they were within 
 the terms of Section 93, but I quite admit, in this case, 
 the terms upon which Manitoba came into the Federation 
 were settled by the Dominion Parliament, otherwise 
 they could not have exempted Manitoba from the pro- 
 visions of Section 93. 
 
 Mr. Cozens-Ilardy. Let me now proceed with Section 2. 
 1 stopped at those words " now composing the 
 Dominion." Then we come to this : " and except so 
 i'ar as the same may be varied by this Act." Then 
 when you come to Section 22, I suggest to your Lord- 
 ships that it is varied by this Act, because there is an 
 express assertion that the exclusive power to make laws 
 
Manitoha School Cask, 1894. 
 
 187 
 
 relating to education is subject and according to the 
 following provisions. 
 
 Lovtl Shdwl. To what (\\tent do you concede that you 
 look at Sub-section IJ in the construction oC Sub-seciion 
 2 of the Act of 1S7(). 
 
 Mr. Cozcns-Iliirdii. 1 say you must not look at it at 
 all, exci^)! so far as it may be. and I suppose is, legiti- 
 mate in a C(.nstitutional Act of the I'rovince of Manitoba 
 to look at the general legislation of the whole Canadian 
 Dominion. 
 
 Tlte Lord Chduccljor. Beyond that yon must surely 
 look at it fcu" this ])urp()se. The only thing that makes 
 it inapplicable is that it is varied by this Act of 1870. 
 In order to see whether it is varied or not you must see 
 what it says, and tJierefore you must see what the 
 variation is, otherwise you cannot come to the conclusion 
 that it is varied and inapplicable. It is something more 
 than looking to a piece of general legislation. 
 
 J/r. Cozens- 1 lard ij. Your Lordships will bear in mind 
 the point 1 was endeavouring to make was that on the 
 face of Section 2'2 it is exhaustive and complete, because 
 it says they may make laws subject and according to 
 the following provisions. 
 
 The Lord Chancellor. Is that conclusive ? On the 
 other hand, if 9o is applicable, it is conceivable that it 
 might import a further condition. Supposing there 
 were some condition entirely difterent from those with 
 which we are dealing, those found m 93 and in 22, and 
 that that separate and independent condition were found 
 in 93, I am not at all sure that it would be clear that 
 that would be inapplicable. You see, prima facie., it is 
 incorporated. I'rima facie, all the conditions of 93 
 apply to Manitoba. You have got to see whether they 
 do or do not, by seeing whether they have been varied 
 " except so far as the same," that is, except so far as 
 the provisions to be Ibund here and the conditions to bo 
 found have been varied. It is quite conceivable that 
 there might be certain conditions added in the case of 
 Manitoba, and yet that some of tl.'O conditions of tho 
 British North America Act might still be applicable. 
 
 Lord ]Vat'ion. What T think was the intention of tho 
 Dominion Parliament in enacting that Statute of 1870 
 
188 
 
 Manitoha School Cask, 1894. 
 
 was tliiB, llu^y iiieaiit to ro-oiiact, Section 1)3 with 
 alteralions winch would luako it suilablo to the circuiu- 
 Btaiices of Manitoba at the tinu^ 
 
 Mr. ('ozens-I /a )'(/}/. Ych, and to make it a coniplett! 
 code orie<4'iHlation with respect 'o (Mliication for Manitoba. 
 
 LortI ]\'otson. I think that is so. li they liiid li'it out 
 a substantive ])rovision that would have otherwise 
 aj)plie<i to Manitoba, I think that omission woukl 
 probably show that they did not intend that particular 
 provision to aj)ply in the case; of Manitoba. 
 
 J/r. (Jo?:eHs-II(ir</9/. That of cours(^ is my submission. 
 
 Lord Watson. They have left out that which obviously 
 does not apply. 
 
 Mr. Cozcm-llardij. ]Uit, my liord, even if that be not 
 so, on the mere face of Section 22 I submit it is. 
 
 Lord Watmn. Your contention is, and I feel very 
 much inclined to agrcH' with it, and I do not think it was 
 seriously disputed on the other side, and I do not think 
 it very materially alfects the (piestion we have to decide 
 — I tninK. it was intended that that (Jlause 22 should 
 comprehend the whole code of legislation with respect 
 to education in Manitob'i. 
 
 2[r. Cozens- Hardy. No doubt. 
 
 The Lord Chancellor. That tlu>re should be, in short, 
 a variation of Section 93. If it is not a variation of 
 Section 93 then Section 93 would be applicable. 
 
 Lord }Vatson. They have repeated these provisions in 
 93 which they have intended to apply, and have left out 
 those provisi(ms in 03 which they intended not to apply, 
 and have inserted provisions which, whether difl'ering or 
 not, in substance are certainly ditierently expressed. 
 
 Mr. Cozens-Hardy. That is the first point which I 
 desh'e to make, and that is the point on which I think 
 three Judges took the view I am addressing to your 
 Lordships, and two took the other view. 
 
 Lord Shand. Do vou mean the two Judges in minoritv 
 woidd not have come to the same conclusion without 
 Sub-section 3 of the British North America Act ? 
 
 Mr. Cozens-Hardy. I do not know that I can quite say 
 that ; I am not putting my case so high as that. 
 
 Lord Shand. I think it could not be put so high as 
 that. 
 
Manitoha School Cahk, 1894. 
 
 189 
 
 r^ Willi 
 
 C'irciim- 
 
 oiiiplotc 
 ai)it()b;i. 
 left oiil 
 licrv^'iKc 
 would 
 irticiilar 
 
 iysion. 
 )vioiiHly 
 
 bo not 
 
 ol very 
 k it was 
 )t think 
 (locidn 
 ) slioiild 
 respoct 
 
 1 short, 
 ation of 
 
 sions ill 
 left out 
 apply, 
 3ring or 
 sed. 
 
 rvhich I 
 I think 
 to your 
 
 ninority 
 without 
 
 Liite say 
 
 bigh as 
 
 Loi'il Watson. TIuto an? Honiostronn- stalonu'iils totho 
 etFect that it ought to bo assuiuod ; that tho intention 
 was to assunio it. 
 
 Lord Shand. \ rathor r(!ad tho two Judges, as putting 
 it alternatively, that with the Act of 1870 alone tht^y 
 would ooino to the same n^sult, but with the light of tho 
 Aet of lS(i7, it was made clearer. 
 
 Mr. (Jo.Z(')is-If(f)'d//. I vc^iture to think they were in- 
 lluenced undoul)t«;dlv bv tlie conviction which they 
 formed that Sul)-secti()n 3 ol' Section U8 so far as it 
 differed from Section 22 assisted their view and enabled 
 them to arrive at the decision which they did arrive at. 
 
 Now, my Lords, dealing with Section 22, and with 
 Section 22 .'done for the present, what is its object ? I 
 ventnre to submit to yonr Lordships that its object is to 
 define and to limit the exclusive powers of legislation 
 which were givi!n to the Provincial Legislature of Mani- 
 toba in and for Manitoba. It shows an intention to 
 preserv'e the rights and ])rivileges with respect to 
 denominational schools which existed at the Uiiitm 
 and those only. It enabled the Legislature to pass a 
 law affecting and preyudicially affecting any right or 
 privilege with reference to denominational schools 
 which was created only by post- Union hjgisla- 
 tion and which was not in existence at the tlate 
 of the Union. And further that the only rrfect of sub- 
 Section 2 is to give a special means of testing whether 
 the Legislature has or has not gone outside of the limits 
 imposed upon it by Sub-section 1. Now my learned 
 friends have argued that cannot be. They say that 
 cannot be because if the Act is ii/tra virea that is a point 
 which may bo raised, and properly raised, in proceed- 
 ings in the ordinary Courts of Law. 
 
 Lord Watson. Then it really and truly comes round 
 to this contention tiiat in construing Sub-section 2 you 
 must read tho words " affecting any right or privilege of 
 the Protestant or Roman Catholic minority "just in the 
 same way as though they ran "affecting the albresaid 
 right or privilege." 
 
 Mr. Cozens- Hard/j. Yes. 
 
 7he Lord Chancellor. Aforesaid does not say any- 
 thing about majority or minority — " affecting the rights 
 
190 
 
 Manitoba School Cahe, 18!>4 
 
 ul'orcHiiid " you HubKtitutcj for '' air('C'tin<i,' any ri^lit or 
 privih'^'e of the Protustaut or Roman (Jatliolic luiiioritv 
 relating lo odiicalion." fs not there rather an o])jec'tion 
 at \\w oiitHet to sncli a construction from the aUerod 
 hm^'iia^o of Sub-sect icm 2 ? 'J'lie words at the (.md aru 
 very mudi \vi(h^r than the words of Snl)-soc(ion 1. 
 Wouhl it lu! aceordiufj^ to ordinary rules of construction 
 to limit them in that way ? 
 
 uVr. CorxHs-Ifardf/. T sii«i'o-ost to your Lordships there 
 was a special reason for ^'iviii<i- this means of testiii;^'. 
 
 T/fc Lord Chanrt'llor. I am not on tlii^ "nutans of 
 testing." Suppose you are riglit in saying you can 
 shew reasons which wouhl justify them, what I am call- 
 ing your attention to is your argument that this second 
 Sub-section relates only to nuittc>rs referred to in the first. 
 AVhat I am pointing out is that where you have such a 
 change of language as you have here for the words "any 
 right or privilege which any (dass have by law or 
 ])ractice in the province at the Union," and when 
 you find instead of those the words " affecting any 
 right or privilege of the Protestant or Reman Catholic 
 minority in reference to education," the ordinary rules 
 of construction suggest that the second prima facie 
 means something different from the first. 
 
 Laid Watwyi. If the Ijegislature had chosen so to 
 limit the right of Appeal expressly to the aforesaid right 
 without saying anything more, I should not have been 
 prepared to challenge the propriety or reasonableness of 
 what they had done, but it does not in the least follow 
 that I am to be guided by that circumstance. 
 
 Mr. Cozenn-IIardji. In considering Sub-section 2 and 
 Sub-section 3 also, it may be necessary, and probably is 
 necessary, to consider what are the functions of the 
 Governor General. Has he any jiulicial character ? 
 
 The Lord (lumceUor, J think the primary (piestion is 
 to determine what the second applies to, which is 
 independent of the functions of the Governor General. 
 The functions of the Governor General come in later. 
 
 JAr. Cozens-IIard/j. Section 2 begins by saying : " An 
 Appeal to the Governor General shall lie." 
 
 The Lord Ghayiccllor. The question is, from what ? 
 You say only from an Act which infringes the rights 
 
Manitoba ^ 'hool (/Ask, 1894. 
 
 101 
 
 tl 
 
 loro 
 
 so to 
 
 what ? 
 ) rights 
 
 wliicli are protectud by Sub-Hcction 1. That iw tho 
 iii'Ht stop you liavu to tako. 
 
 J/r. Co:- ens- /[(()•<///. I do not (Ksny that" Act" inchulos 
 " Statute " hoiv, l»iit " Aft " (hn'H not mean '' Statute." 
 "Act or (h'cision ol' any Provincial Aiuliorily " moans 
 sonictliiiii;' (lone by the Jjc^'islaliiru t)r Provincial 
 Authority. 
 
 V'ho /jord ('hdniellor. 'V\\v only way in which tl 
 IjG^islatiire acts is by Statute, is it nt)t 
 
 10 
 
 \f)'. Co.^cns- 1 Id )')///. Is that (juite so? Certainly that 
 
 al Authority. The 
 
 lid not bo tl 
 
 ith a P 
 
 VVOUl 
 
 same words apply to botli. 
 
 LonI M'atson. And Provincial Authority under this 
 clause is distin^'uished. 
 
 Mr. Conenn-Ifdnhj. Yes, it is. I su])niit, alth(^"T<j;h the 
 word " Act " would include a Statute oi" the Le«^.. slat are, 
 yet it is not in terms so describetl, but it is said to bo 
 subject to an Appeal because it is something' which is 
 contrary to the main purpose, object and intent ol' the 
 Act. 
 
 The Lord Clianvellor. As applied to the licgislaturo 
 does not that mean Statute? 
 
 Mr. Cozens- 1 [ardij. It would include it. 
 
 The Lord Chancellor. What else can the Legislature 
 do but enact ? 
 
 Mr. Cozens- Hardji. Then? may be resolutions passed. 
 There may be various acts. They might have done 
 some things not in the shape of an Act. 
 
 The Lord Chuncellor. We are not talking of an 
 assembly which may have some prerogatives at common 
 law. 
 
 I^ord Watson. I do not think any resolution of the 
 Assembly which was not in the form of an Aci and not 
 sanctioned by the Crown would allect private rights. 
 
 Mr. Blake. The Jjegislature is com])osed of the 
 Lieutenant-Governor and the Assembly. It is an Act of 
 the Legislature. 
 
 Mr. Cozens-Hardy. That still leaves open a question 
 which I desire to submit to your Lordships. My friends 
 say this cannot apply to an extra vires Statute. 
 
 The Lord Chancellor. I do not think they said it can- 
 not apply. 
 
102 
 
 Manitoha School Cask, 18'J4. 
 
 Mr. Cozcns'Ilardi/. I fhink my iVii'nd'K argument went 
 to that longtli. 
 
 77/e Ao/v/ Chnnrcllor. Tlioy Haiil it caimot apply in 
 tliiH H(MiH(^ lliat the proviKion all'cctin;^,' tliri'i, if it wcru 
 void under Sul)-Heelion 1, could not Ik; descrihed aH an 
 Aet oi'llu; Le^'islalure, liecaune an Acl olllie Jjc^-iHlaliire 
 muHt nu-aii Hometldn^- vvhieh it eU'eefually does and not 
 Honiclliing which it purports to do and does not. 
 
 Mr. ('o.icns-Ifftrf/i/. Is that right ? It is m)t of coursi! 
 iimial to ])rovide any maehinca'v for docid in <•• the abstract 
 (juestion whether a l)y(!-law of a corporation or an act 
 of a subordinate legislative authority is or is not valid? 
 
 Lord M'dtson. It does not seem very ja'obahK^ jtritiut 
 facie that there should l)e a reference given to tla; 
 (Jovernor to ccmsiiler whether an Act which this Statute 
 declares to be ultra vires sJiall be retained on th(^ Statute 
 Jiook or shall be nuuliiied. What is given to the 
 Governor is a discretion to do what he thinks tit on ap- 
 peal. How is he to exercise that discretion in the case 
 oi' an Act which has been declared by the Imperial 
 Legislature itself or the Dominion Legislature, acting 
 under the authority of the Imperial Legislature to be in 
 itself idtra vires? 
 
 Air. Cozens- Hardy. I should answer vour Ijordship's 
 question by saying that he is judicially to determini?. 
 Of course he had the oppiulunity of taking the opinion 
 of the Court, and ultinuitely the opinion of your J^ord- 
 ships of the Privy Council. 
 
 }(r, Blal'e. He had not at the date of the Act. 
 
 Mr. Cozens- Hard ij. That is true. 
 
 Lord Wat'^on. I should think that was the only case in 
 which an Appeal contemplated — if that case is inclnded 
 it is the only case in which an Appeal contemplated by 
 Sub-section 2 would be judicial. 
 
 The Lord Chancellor. You would have a rather curious 
 state of things, because supposing the Governor yaid 
 that it was idtra vires, and accordingly told them to pass 
 an Act, and they did not, and then tlie Canadian I'arlia- 
 ment proceeds to legislate, and then the nuitter goes on 
 as it might before a Court of Justice 
 
 Lord Wat^&n. And both Acts are invalid ? 
 
 M'l. Cozens-Hardtj. That may be, . . 
 
 
Manitoha School Cask, 1894. 
 
 10.'^ 
 
 Lord Watson. I appi'ohoiid tlml \\\v. Apju'al to ilio 
 Govornor jh an Appeal to \\w Oovornor'n diHcrotion. It 
 iw a political adiiiiniHtrativc Appeal and not u judicial 
 Ajjpcal in any proper HunHoof'thu lonn, and in tlu; Hanio 
 way alter lie liaH decided llio name latitude! ol" diHcretion 
 is H'iveu to the Douiiniou Parliament. They may le^-iw- 
 late <»r not as they tliiiik fit. 
 
 Mr. lihthe. Only within the limitH of his discretion ; 
 they cannot ffo btn-ond. 
 
 jfr. Cor.em-llardji. He has to decide vvdiether it allbcts 
 any ri^lit or privilege. 
 
 Lord Wiitson. That id not ))erore us now. 
 Lord Shdud. Su[)])ose both were legitimate, an A])[ieid 
 to the Court of Jjaw and an Aj)peal to tlu! (lovernor 
 (ireneral in (Jouncil oven in the case of an vltra vires 
 Statutt! that would not settle this ([uestion by any means. 
 It might (piite well be so. 
 
 Mr. CoPX'nH-IFdrdji. I was now dealing with the matter 
 by steps. I say ih'st of all this does include an Appeal 
 in respect of an vltni rircs Act. 
 
 Jjonl Shdnd. Von must no doubt look to the exac't 
 hmguage of the Section, l)ut then you nuist see how it 
 is controlled by the reason of the thing. I do not tliink 
 it at all shuts out the question wo have to deal with, 
 even supposing it was done as you were suggesting. 
 
 }fr. (Jozens-fLird//. That may be so, but now what 
 light (h)es Sub-section 3 throw upon it? Sub-section 3, 
 I venture to tliink, throws a groat light upon it and helps 
 us very much. " In case any such Provincial law as from 
 time to time seems to the Govornor-General in Council 
 rcipiisite for the d\U3 execution of the provisions of this 
 Section." That nuist mean, I submit to your Lordships, 
 to give effect to Sub-section I of Section 22. 
 
 Lord Watson. It does not re([uire legislation to give 
 effect to the leading part, the introductory part of that 
 Section. 
 
 Mr. Cozcns-ITardij. Legislation might be necessary to 
 wipe ont an Act, whether wholly or in part. 
 
 Ihe Lord Chancellor. To annul the Act altogether. 
 Mr. Cozens-Hardij. To clear the Statute Book of that 
 which was nnll and void, which was ultra vires. It goes 
 ou, " Or in case any decision of the Governor-General in 
 
194 
 
 Manitoba School Case, 1894. 
 
 ^if 
 
 
 Council on any Appeal under this Section is not duly 
 executed by the proper Provincial authority in that 
 belialt, then and in every such case, and so i'ar only as 
 the circumstances of each case reiiuire, the Parlianieut 
 of Canada may make remedial laws for the due execution 
 of the provisions of this Section and of any ilecision of 
 the Governor-General in Council under this Section." 
 
 Tlie Lord Chancellor. Do you suggest that tlie 
 Dominion Arf -d' Parliament is lo be an Act annulling a 
 void enactment of the Provincial Parliament ? 
 
 Mr. Cozeyis-IIardij. That is my submission, because 
 Sub-section 3 is divided into two parts, as Lord Watson 
 pointed out, The first gives the Canadian Parliament 
 power to legislate on the recommendation of the Governor- 
 General without any Appeal to him imder Sub-section 2. 
 It is a separate and distinct power. The Governor- 
 General may say, " This Act which has been passed by 
 the Legislation of Manitoba is one which is idtra vires, 
 one whif'li is inconsistent with Sub-section 1. That ought 
 not to be a matter of doubt that ought to be left to bo 
 decided by a ]3rivate Action which might be raised 
 betw(3en a subject of Manitoba and some rating authority 
 or otherwise, but it ought to be got rid of by the Parlia- 
 ment of Canada in order to secure " the due execution of 
 the provisions of this section." The first part of Sub- 
 section 3, I submit to your Lordships, must jjlaiuly 
 apply and apply only to Sub-section 1. 
 
 The Lord Chancellor. 1 do not see why. 
 
 Mr. Cozens-IIardi) . My Lord, the first part of Sub- 
 section 3 contemplates a case where no Apjjcal has been 
 made to him at all. 
 
 Lord 2Iac7uujhten. I do not quite follow that. You say 
 the first part of Sub-section 3 applies to a case where 
 there has been no Appeal to him. 
 
 Mr. Cozenti-IIardt/. I suggest so. 
 
 Lord Macmu/htcn. Why is thai ? 
 
 Mr. Cozens- Ilardij. The words art 
 Provincial Law as Ironi lime to 
 Governor General in Council recpiisite for the due 
 execution of the provisions of this section. " 
 
 The Ljord Chancellor. But the "due execution of the 
 provisions of this scheme " jneaus when there has been 
 
 " In case any such 
 ime seems to the 
 
Manitoba School Case, 1894. 
 
 196 
 
 an Appeal iiiado to liiin, it is in order to carry out his 
 views upon that Appeal, that is all. 
 
 Mr. Cozens- Hard f/. With submission, is that consistent 
 with the following words : "Or in case any decision of 
 tlie Governor General in Council on any Appeal under 
 this section is not duly executed by the proper Provincial 
 Authority." 
 
 11(6 Lord ChanccUor. Yes, because there might be 'a 
 decision wliich would not be a legislative Act. They 
 might be aflected in two ways, they might be affected 
 by an administrative Act, they might be affected by a 
 legislative Act, and in both cases therein is an Appeal 
 
 given. 
 
 Ah. Cozens - ITard/j. But Sub-section 3 deals with 
 remedial laws in both cases. 
 
 2 he Lord Chancellor. It might be, if there was an 
 Appeal against an administrative Act which was not put 
 right, you might have to have a remedial law in order 
 to take away that power wliich had been abused. 
 
 Mr. Cozens- Hard//. I submit to your Lordship that 
 8ab-se(;tion 8 is merely intended to provide for the due 
 execution of the exclusive power of Legislation in the 
 matter of education which is given to the Province of 
 Manitoba, and that it has no reference whatever to any- 
 thing except a matter which is outsidt^ the powers of 
 Manitoba in this Section, and something which is neces- 
 sary to secure the due execution of the provisions of 
 this Section. 
 
 The Lord Chancellor. On that point of course we can- 
 not but look to the effect of Section 93 if that view be 
 correct, because if" provincial authority " in Section 93 
 does not inchide "Legislature" in Sub-section 3, then 
 it is quite clear — at least it strikes me so — that the 
 Appeal wliich is given by Sub-section 3 must apply to 
 Sub-section 1. 
 
 Lord Watson. I do not understand this altog(>tlier. 
 There was a good deal of argument and a great diuil of 
 expression of opiuicm in the Court below, which I liardly 
 follow, upon the improbability of the Dominion JjCgis- 
 lature superseding the Provincial Legislature. They 
 have done so in some cases, and the question is in what 
 cases. They have most unquestionably substituted the 
 
196 
 
 Manitoba School Case. 1894. 
 
 Dominion Legislature, and laid upon fchem the duty of 
 considering and doing everything proper to be done to 
 effect that which the Provincial Legislature ought to 
 have done. That is to a very large extent at any rate 
 affecting their legislative powers. 
 
 Mr. Cozens-TTanhj . This brings uie, my Lord, to llio 
 next point T was coming to, which is this — I say it is 
 contrary to principle that an admitte<lly intra vires 
 Statute cannot be revoked by the legislative body which 
 creates it. Now, there is no similar restriction so far as 
 I am aware to bo found in the legislation of Canada. I 
 have looked through the Act carefully, and I am not 
 aware of any instance, nor have my learned friends 
 referred to any instance in which an admittedly intra 
 vires Act cannot be revoked bv the body which admit- 
 tedly rightly passed it origmally. 
 
 Mr. Blalce. I was stopped on that point. 
 
 The Lord ChanceUor. The revocation might give a 
 right to appeal on the ground that it destroyed cer- 
 tain rights. For example lot me take a case. 
 You say that it is applicable to the provisions of 
 Sub-section 1. Supposing that there had been 
 in Manitoba some rights and privileges (it was 
 clearly thought there were) existing at the time of the 
 Union, Supposing that immediately after that the Pro- 
 vincial Parliament had passed a law putting into the 
 shape of an enactment all the rights that existed, and 
 repealed any pre-existing law. At that time those rights 
 and privileges would have been perfectly secured by 
 that Act, and they would have been secured by that 
 Act alone. Suppose they had repealed that Act, it would 
 not have revived the former law. You say they have 
 perfect power to repeal it, so they have, but the question 
 would arise, what was the effect of that repeal. 
 
 Mr. Cozens-IIardy. It would not be competent for them 
 to interfere with a right existing by law prior to the 
 Union. 
 
 The Lord ChanceUor. Quite so, and when you are 
 saying that there must be an absolute right to repeal, it 
 might be that their repeal would be etiectual as to certain 
 provisions, and ineffectual as to others. This right of 
 repeal would not be complete, because there were certain 
 
Manitoba School Cask, 1894. 
 
 197 
 
 rights which they could not affect, even by a repealing 
 Act. 
 
 Lord Wataon. Yon suom rather to ignore this fact that 
 whilst it was not competent for them prejudicially to 
 affect or to repeal rights and privileges with respect to 
 denominational schools which were possessed by any- 
 body prior to the Union, it was entirely within their 
 legislative competency to do anything to give effect to 
 those rights. 
 
 Mr. Cozcm-IIanlf/. The view I pr( sent to your Lord- 
 ships is this, not that there were no rights and privileges 
 at the date of the Union, because I do not \mderstand 
 your Ijordships in the liarrett case decided that there 
 were no rights or privileges existing with regard to 
 denominational schools at the date of the Union. The 
 only decision was this, that there were no rights or 
 privileges which were aff"ect(^d by tlio Act of 18!)(). 
 
 The Ijord Chancellor. But those rights and privileges 
 must have been of a very limited cliaracter. 
 
 Lord Hhn7id. CJan you suggest any rights or privileges 
 prior to the Union ? 
 
 J/?'. Copx'ns-IIardij. I can suggest to your Lordships 
 many rights which they had then which couhl have 
 been interlered with. For instance, if an Act were 
 passed compulsorily re(|uiring every child to attend the 
 public schools, and disabKng any child attending de- 
 nominational schools, that woukl be an interference with 
 a right or privil(>go, and I apprehend that would have 
 been an idtra vires Act, and that this Jioard would have 
 so decided. 
 
 The Lord Chancellor. Is that quite certain that they 
 enjoyed the right or privilege of not going compulsorily 
 to a public school. 
 
 Mr. Cozens- Hardij. No, but they enjoyed the right or 
 privilege of going to a denominational school, and if 
 they are compidled to go to another school it necessarily 
 follows that they cannot go to a denominational school. 
 ]\[y construction, therefore, does not render Sub-section 
 2 nugatory, it leaves it perfectly operative, and there 
 are many cases to which it might a[)ply. 
 
 The Lord Chancellor. If you look at the corresponding 
 Sub-section of Section 93 and see what was the nature 
 
». 
 
 198 
 
 Manitoba School Case, 1894 
 
 M 
 
 I! 
 I 
 
 I 'i 
 
 I 
 
 of the ri^lits of tliG minority which it was intended to 
 protect, it does not go very near that, I think, beciiiiho 
 yoii cannot look at Section 93 of the original Act without 
 seeing that the separate ehass, whether by that was 
 meant the Catliolics where the Protestants wer(} in the 
 majority or whether it was meant specially for Protes- 
 tants where Catholics were in the majority, it was the 
 rights in respect of that particular class which were 
 intended to be pj'otectetl. I'ractically speaking, there is 
 no such protection in Manitoba if you are right. 
 
 Mr. Cozens- Hardy. That may be so, but of course the 
 language of Section 22 is very different from that of 
 Section 93 on that point. 
 
 The Lord Chancellor. I mean it is very difficult to 
 shut one's eyes to the fact that at the time the Manitoba 
 Act was passed — one is entitled to look at the circum- 
 stances — you had a Catholic and Protestant population 
 nearly balanced ; you had notoriously (for that you may 
 certainly look at this legislation, and indeed it is common 
 knowledge) the Catholic part of the population set upon 
 separate schools for their denomination. It is with a 
 view to the protection of rights of that sort that this 
 legislation is passed. Practically your contention would 
 place Manitoba in a worse position for the Catholic 
 minority as it might be or the Protestant minority as it 
 might be in a position of less protection than you get in 
 Ontario. 
 
 Mr. Cozens-Hardy, I accept that. It is undoubtedly 
 so. That is the eftect of the legislation according to my 
 submission. They are put in a different position, and it 
 may be in a worse position. Now the opposite view 
 lands my learned friends, 1 venture to think, in this 
 difficulty 
 
 The Lord Chancellor. You have not yet grappled with 
 my difficulty, it is not touched by any observations you 
 have made. It is true that the language of Sub-section 
 2 seems to indicate that the Act of the Legislature which 
 is to be the subject of the right of Appeal is not that 
 whicdi aftects the rights referred to in Sub-sec ion 1, 
 because the language is altogether different. Sub-section 
 1 deals with affecting " any right or privilege with 
 respect to denominational schools which any class of 
 
Manttoha School Case, 1894. 
 
 199 
 
 persons have by law or pratico in the province at the 
 Union ;" Sub-section 2 in terms g'ives an Appeal from 
 "any Act of the Legislature alfectinu; any right or 
 pi'ivilego of the Protestant or Roman Catholic minority 
 of the Quetm's subjects in relation to education," The 
 words are diifercMit, presumably they mean a different 
 thing. It is for you to show tlmt they must mean the 
 same?. The onus is entirely on you when those wide 
 words are used. 
 
 Lord Watson. There is not only a change in the 
 language used, but whereas in Hub-section 1 the right 
 and privilege referred to is a specilic and limited right 
 and privilege, in the other it is in the widest possible 
 terms, " any right or privilege." There are no words 
 of reference back to Sub-seclion 1. 
 
 Tite Lord ChanccUor. You are asking us to limit 
 very general wide words, and to construe them as if 
 they were much narrower and applied on^- to the right 
 referred to in the 1st sub-section. Now, I do not say 
 that in some cases there may not be arguments for 
 saying that you must put, and that you cannot help 
 putting, upon wide words a narrow meaning, but that 
 meaning is only to be given if you are driven to it, if from 
 some part of the Act you see that you cannot read it or 
 give effect to it reasonably without doing so ; prima 
 facle^ however, you have the words, and that is the 
 point you have to grapple with. 
 
 Lord Watson. You infer some coercive words into the 
 Act which iuiply that a more limited meaning must be 
 
 given. 
 
 Lord Shand. The words of Sub-section 2 are 
 " affe-^ting iiny right or privilege." That is very 
 general, but then it is " affecting any right or privilege 
 of the Protestant or Roman Catholic minority." That 
 is different language to the language of Sub-section 1. 
 
 Mr. Cozcns-Hardy. I am coming to tliiit as a separate 
 point, if your Lordshi]) will pardon me. 
 
 Lord lla^so/j. The limitation is in point of time in 
 Sub-section 1 ; there is no limitation in point of time in 
 Sub-section 2. 
 
 Mr. Cozens- Hard ij. The way I desire to put this to 
 your Lordships is, that from the nature of the powers 
 
200 
 
 Manitoba School Case, 1894 
 
 I 
 
 ?! 
 
 and from the context and from the reason of the tiling, 
 Sub-section 2 must be limited to an Act which infringes 
 Buch a right or privilege as could not be touched by an 
 intra vires Act, and I ask your Lordships to come to 
 that conclusion, because in Section 22 the exclusive 
 power of making laws relating to education is given to 
 the Provincial Legislature. I gather that the Canadian 
 Parliament would have no power to pass a new TCduca- 
 tion Act : it could not do that. 
 
 The Lord Chancellor. AVliy not ? 
 
 Mr. Cozens-Hardy. All it could do was to make 
 remedial laws. 
 
 The Lord Chancellor. It is not given exclusively. 
 It is given exclusively, " subject to the following pro- 
 visions," and if you find the following provisions in 
 certain cases enabled the Parliament of Canada to 
 legislate, it seems to me that it means that so far it is 
 not exclusive. 
 
 Mr. Cozens-Hardy. But it is only " remedial laws for 
 the due execution of the provisions of this section." 
 
 The Lord Chancellor. That is if an Act has been 
 passed which on Appeal is thought to contravene rights 
 which are intended to be protected, that is intended to 
 enable the Dominion of Canada to pass, if the Legis- 
 lature of the Province will not pass a law relating to 
 education which will set that right. 
 
 Lord Macnaghten. If the authority of the Dominion 
 Parliament is once properly invokod, what limit is there 
 to their powers of remedying any mischief that has been 
 created ? 
 
 Mi . Cozens-Hardy., All it could do would be to make 
 " remedial laws for the due execution of the provisions 
 of this Section " in order to see that nothing goes beyond 
 the provisions of this Section, but they could not pass a 
 new Educational Act. 
 
 Lord Macnaghten. It might be necessary, surely ? 
 
 The Lord CJiancellor. It might be necessary to deter- 
 mine that certain officials should only have certain 
 limited powers, or it might be necessary to vest rights 
 in trustees. There are a hundred cases where it might 
 bo necessary to give effect to the intention of this Section 
 and to protect the rights acquired (I am not dealing 
 
Manitoba School Case, 1894 
 
 201 
 
 with tlu! (iiiust ion wliotlier there are any) tlcnouiinational 
 schools. 
 
 Lord S/tantJ. Supposing the Legislature passed an Act 
 which adinittedly did aflect these privileges prejudicially, 
 your argument is that that is not a matter intended to hv 
 within their rrovince at all. 
 
 J/r. Cozens- 1 fa rdi/. Does your Lordshi]) refer to the 
 (piestion of dealing with an ante-Union privilege ? 
 
 Lord Shand. I nnderstand that the contemplaticm of 
 these Sections is that in and for the Province of Mani- 
 toba the Provinciid Legislature is to have exclusive 
 power ? 
 
 Mr. Cozens- Hard f/. Certainly. 
 
 Lord Shand. Ihit if they were to proceed to pass an 
 Act of I'arliament which admittedly and avowedly was 
 intended to prejudice the rights of certain })ersons with 
 regard to education, your argument is that it would be 
 beyi)nd their power? 
 
 Mr. Cozens-Uardi). Yes. 
 
 Ljord Watson. You start this part of your argument 
 by saying that the Legislature of Manitoba is to have 
 exclusive legislative powers in the nuitter. But that is 
 not in the Act. They are to have exclusive power ex- 
 cept in so far as it is ([ualilied by the provisions of the 
 Act, and that leaves it open. We cannot assume that 
 the Legislature meant to give them the entire exclusive 
 power without the qualification of these provisions, and 
 the only (question really is to what extent is their ex- 
 clusive right qualified by the provisions of the Section. 
 You cannot take any benefit from the assumption that 
 the Legislature did give or meant to give them the whole 
 power. They did not mean to give them the exclusive 
 power. 
 
 Lord Macnaijlden. They had the exclusive power till 
 they overstepped the limits of the Section. When they 
 did that I do not see any limit to the remedy which the 
 Dominion Parliament might apply, except the mischief 
 which had to be renu'died. 
 
 Lord Watson. I think they have gone rather beyond 
 that. Unless your construction of Sub-section 2 is 
 right, in other words if " any right or privilege " include 
 the other rights, they have a legislative power and can 
 
•MIBMMl 
 
 202 
 
 Manitoba School Cahe, 1894. 
 
 Jiflbct lliose rights, but their lo<i,'islation affect ing those 
 ri^'lits may be set aKido by tlie Governor General, and if 
 tliey will not give etfeet to the Governor General's ruling 
 then effect can bo given to it by the Dominion Parlia- 
 ment. 
 
 Lord SharuL At the same time the expression used in 
 givhig power to the Dominion Parliament is " then and 
 in every such ease and as far only as the circumstances 
 of each case require the Parliament of Canada may 
 make remedial laws." 
 
 Mr. CozcnH-lIarilij. That is my point. I am now using 
 this, of course, to meet the Lord Chancellor's observa- 
 tion. 
 
 Lord fShaiid. That would moan putting things back as 
 far as they could by remedial laws, not initiating a new 
 law that might be mischievous in itself. 
 
 Jjord ]]^(itson. I do not think it necessarily ..cans that. 
 I think "remedial laws" here means to do what the 
 Provincial Legislature ought to have done in the execu- 
 tion of the Act. 
 
 J/r. Cozens- Jlardfj. There is a limit imposed upon the 
 exclusive power of the Manitoba Legislature to correct 
 laws. 
 
 Lord Watson. If it is anything it is a qualification of 
 their exclusive power. It is simply to correct something 
 that has been wrongly done, not to legislate themselves 
 upon the subject of education one hair's-breadth further 
 than to set right what has been wrongly done. 
 
 Mr. Cozens- Hard f/. Exactly. Nothing is wrongly done 
 which is intra vires. 
 
 The Lord Chancellor. That of course is the whole 
 question. 
 
 Mr. Cozens-Hardij. This Board has decided of course 
 that the Act of 1890 was not wrongly done. 
 
 The Lord Chancellor. They have decided that it is 
 intra vires. That is not saying that it is not wrongly 
 done. I think there has been some confusion of view in 
 some of the Judgments below. It is said that this 
 Board has decided that the Act was iJitra vires., and that 
 therefore it follows that they cannot infringe the pro- 
 visions of Sub-section 2, but that of course is the whole 
 question. 
 
Manitoba School Cask, 1894, 
 
 203 
 
 Mr. (Jozcns-llardij. Wliiit I doHiro to iir^o is, not that 
 {\\v UarroLt cumc dt'cidecl tliiH. I do not tliink it did. 
 
 The Lord Chanv.eUor. Thoy have said that it did not 
 infringo Sub-secticm 1 bocanso it did not att'('(!t " any 
 rio-lit or |)rivil(\<4'c with respect lo denominational schools 
 which any class of persons have by law or practice in 
 the Province at the Union." They havi; not said that 
 it did not attect the rights or privik'o't^s oC a Roman 
 Catholic minority in relation to education. 
 
 Mr. Conem-IIardii. lint what are the provisions of tliia 
 Section which can be applii JjI-^ to a case like the 
 present ? There is no " remedial hiw " re(piired in 
 dealing with a Statute of the Manitolia Legislature which 
 is intra I'ireii. There is no " remedial law " Tiecessary. 
 
 Ue Lord Chancellor. I confess the words *' remedial 
 hiw " point, to my mind, to legislation and not to merely 
 annulling something which the Lc^gislatur*^ has said 
 shall be annulled. You cannot call the mere ex(!cution 
 of the Section a " remedial law." And they are not to 
 go beyond what is necessary. 
 
 Ijord Shand. And it is " in every such case and as far 
 only as the circumstances of each case ret^uire." 
 
 The Lord Chancellor. Yes. Now it does not require 
 at all remedial legislation to annul an ultra vires law. 
 
 Mr. Cozens- Hard//. Except that it is the mode of 
 getting rid of an Act. 
 
 Lord Watson. You suggest this would l)e a mere 
 declaratory Act, declaring that the original law was 
 wrong. 
 
 Mr. Cozens- Hard//. Yes. 
 
 The Lord Chancellor. Is that not rather straining the 
 words, "as far as the circumstances of each case require ?" 
 In that case " the circumstances of the case " would 
 always "require" precisely the same thing — sinqjly to 
 annul the law. 
 
 Mr. Cozens-IIardi/. The circumstances might not 
 require the annulment of the whole law. They might 
 require a declaration of the invalidity of a part of the 
 law. 
 
 The Lord Chancellor. But in each case it would be 
 annulling a law ; there would be no variation from case 
 to case. 
 
204 
 
 Manitoha School Case, 1894. 
 
 Mr. Cozens- flarth/. No, it would bo declaring' tluil tlio 
 law wan cither wholly or, aw the circiiniBtancL'H ol" the 
 caHc mi^ht rcuiiiiro, partially void. 
 
 The J Ami Clianrc'llor. If that iH all that was meant 
 it would hav(! b(!en very Himplc! to have put it in very 
 dilll'rent lan^-uao'e. That is not a conclusive ar^iiiuent 
 1 quite a^Tce, but the langua^'e does not :scciu to be 
 very appropriate lan^-ua^'e. You Bay Sub-isoction 3 
 tendB to show that Sub-section 2 must mean somethinn* 
 less than at lirst sight it says. So far Irom that the 
 language of Snb-secti(m 3 seems to me rather to point 
 in the contrary direction. 
 
 Mr. Cozens- 1 lardy. The way I endeavour to meet the 
 Lord Chancellor's observjition is this. 1 say tiiat Section 
 22 anxiously provides that the Manitoba Ijcgislaturo 
 is exclusively to have the power within certain limits, 
 but that it. is not intended to confer any general legisla- 
 tive power upon the Canadian Parliament. 
 
 Lord Watson. It is just the same as if it had been 
 " subject to the exceptions hereinafter enacted, the Pro- 
 vincial Jjcgislatiu'e shall have exclusive power." 
 
 Lord Shand. Vmt the exception is that they are to 
 remedy anything as to which the -Manitoba Legislature 
 
 goes wrong. 
 
 Mr. Cozens-IIardy. Exactly. 
 
 The Ljord Chancellor. Is it not conceivable legislation 
 to say " We will trust to you the Provincial Legislature 
 the power of dealing with education, but this is a ques- 
 tion upcm which there is known to be a keen feeling and 
 a dilference of opinion, and you are not to destroy any 
 privileges or rights existing at the time of the Union. 
 Further than that, if you legislate within your powers 
 the minority shall not be without protection ; there shall 
 be then an Appeal to a superior authority, the Governor- 
 General in C'ouncil, and if he thinks that within your 
 powers you have been depriving the minority of any 
 riglit or privilege in relation to education then he may 
 express that decision, and effect shall be given to that 
 decision or may be given to that decision by the 
 Dominion Parliament." I do not see anything extra- 
 ordinary or inconceivable or revolting to one's notions 
 in such legislation. I don't say that it follows, that that 
 
Manitoha ScirooL Cask, 1894. 
 
 205 
 
 lull tlio 
 ol" Iho 
 
 is the k'^'iHliilion ; 
 
 lie 
 
 P- 
 
 )ut ihcn you arc jiHkin;^' uh apptinmtly 
 to ii])HUiiii i'rom ^'ivin^' to vvido words ihcir apparont 
 m('aiiin<2,', bccaiiHci there would l)o Koniothin^' ropu^'iiant 
 to ordinary uotionw in legiHlatiou ol'tluit dt'scription. 
 
 JAr. (!(>.:cns-II(U'(h/. Yoh, that Ih tho way I put it. 
 
 Lort/ W^dfsou. Ak i'ar as I can sco, and as Car as I 
 uiKhMstaiid, tlu! Dominion I'arliauicin have no pow(T 
 wliatciver lo originate K'^'islation with regard to i^hiea- 
 tion in the Provinee. They liave power to interfere, and 
 that for remedial purposes only, when their attention is 
 called to certain grievances hy the (lovernor-tJeneral 
 accompanied with thi^ statement that the (lovernor- 
 General is of opinion that these grievance's ought to bo 
 reniedii^l in a [jarticular way. Whether the Governor- 
 General must ])oint out wdiat that way is or leave it to 
 the Parliament I do not think it is necessary to deter- 
 mine. 
 
 Lord .]f<tcna(/hten. And that tho I'rovincial Legislature 
 has declined to set matters right. 
 
 ]\fr. Cor^em-IIard//. With submission, is that last 
 qualification right? The first part ofSulnsection 3 does 
 not seem to reijuire tluit. 
 
 Lord Watson. That indicates that tho legislation of the 
 Provincial Parliament is not to bo treated as ultra vires. 
 They Jiro to have a chance, if tho Governor-General 
 thinks right, of remedying tluMr defective legislation by 
 putting in a clause for the protecrtion of those rights snd 
 privileges referred to in Sub-section 2. If they decline 
 to give protection in the Way suggested, or in any way, 
 then it becomes matter of refenMice to the Dominion 
 Parliament. 
 
 'rhe Lord ChinceUor. Can you say that undei" tho first 
 part of Sub-section 3 the Governor-General is to keep a 
 sort of constant eye upon the legislation of the Province? 
 Is not that part of Sub-section 3 only applicable where 
 there is an Appeal under Sub-section 2, and where it is 
 brought by means of that Appeal to the notice of the 
 Governor-General ? You suggest something much 
 wider ? 
 
 Mr. Cozens-TIardij. Yes. The second part deals with 
 cases where the provisions have not been duly executed. 
 The first part is not limited to that. 
 
 Lord Watson. What is the meaning of these words ? 
 
206 
 
 Manitoha School Cawk, 1894 
 
 Tliin \H nil oxcoplioii from Iho fxcluhivf povvorn of tlio 
 ProvitH'C! and an except ioii in I'avonr of llio Honiinion 
 rarlianicnt. What power liavc (lie Deniinion Parliament 
 to interfere at all or to le^-iHlate upon the Mii'tjcct iinlcKH 
 the (lovernor-Cieneral has taken the initialiv(^ and ex- 
 presHod to th(^ Provincial Legislature his opinion that 
 certain le<^iHlation Ih nccosHary and the ['rovinciai 
 liC^'iBlature has d(!clined to ])aHH it ? 
 
 Mr. Copicns IldVihi. Yoiu' liordslii]) does not lind that 
 limitation in the tirst part oi" Sub-section .'J, thou^-Ji you 
 do in the Hocond [)art. 
 
 Ijord Shand. Hut snppose you are ri^ht in that, docH 
 it make any dillbrenco ? It does not atl'ect the construc- 
 tion ol' th(! previonH clause. The miHchiol' nnist occur 
 bel'oro there can Lo any api)oal. 
 
 Lord Watson. Yom* first contention is that the only 
 Ap[)eal ^'iven by Sub-section 2 is an i\i)peal in respect 
 oi' an interference with a ri^ht or privile^'e referred to in 
 Sub-section 1. 
 
 Mr. ( 'o:icns-l[ardij. Yes. 
 
 Lord ]V(itson. It' your inter])retation of Sub-section 2 
 is right cadit qucdio .lo such Apj)eal has been made to 
 the Governor General in this case. On the other hand, 
 if their Lordships should be of opinion that your con- 
 srruction is not right, and that Sub-section 2 brings in 
 what have been called post-Union rights and privileges 
 acquired through legislation by the minority, it docs not 
 appear to me to be a very important in([uiry whether 
 under that general classification, including all those 
 rights a case falling under Sub-section 1 mayor may 
 not bo also included. It becomes simply an Academic 
 question. 
 
 Mr. Cozcns-IIardjj. Yes. I was only using it to nuike 
 my point clear. 
 
 The Lord Chancellor. Your case is that tlie only por- 
 tion of the Section which is effective is the first, but 
 what is the meaning of saying •' any such provincial 
 law as from time to time seems to the Governor General 
 in Council requisite for the due execution of the jn'ovi- 
 sions of this Section " as distinguished from the decision 
 of Governor-General in Council on any Appeal. 
 
 Mr. Cozens-IIardij. It may not, of course, be a law, 
 
Manitoha School Oahk, 1894. 
 
 207 
 
 It may l)u some acliiiiuiHtralivt! act ol'Huint' atliiiiiUHtralivo 
 
 body. 
 
 'lliat, my LohIh, Ih what I dcHirc! to Hay on tlio firHt 
 ])art of tlio c'aH(\ Now I coiiu! to anotlicr part of (lio 
 case |o wliicli I am not sure tliat my Iciinicd IViciidH on 
 the oilier side have ( I uilc HO I'ldly dircctcti yoiir liordnliipn 
 atlt'iiiioii. I'lvni it' wc arc wroii^- and your LordHliiiiH 
 hIiouIiI liold thai an Appeal dooH lio from a poKt- Union 
 Statute it only licHurcoiirHO il' it allectHany ri^lit or nrivi- 
 lis^'ool'tln* I'rotoHtant or Komatii 'atliolicminority in relation 
 to education. On that il in iicccHHary to ank your Lord- 
 HlupH* attention to iIk^ legiHlalion from 1870 up to and 
 including' the Act of 181)0, hecauHt^ il in only that Icgin- 
 tion which in Htak'd to he intericrc'd with or pre- 
 judicially alloctcd l)y the Act of 181)0. 
 
 Lord Watson. Ihit how can you ajiply the wordn 
 " provincial authority " il" the righlH and privilc«;'cs arc 
 limited to those Hpcx'ilicd in Suh-soction 1 "r* 
 
 Mr. Concns-Ifdrdf/. There might he many ailminiHlra- 
 tive Acts iniericrine- with them. 
 
 Lord Shiuul. Then may I ask with what ohject you 
 are going to refer to the legislation ? Ih it lor tlus 
 pur[)ose ui' showing that there is no privilege interlered 
 with? 
 
 Mr. Cozens-IIardi/. Yes; there is no right or ])rivik'ge 
 of the Protestant or Uoman Catholic miiioritv of the 
 Qut.'cn's suhjects in relation to education which has heen 
 interfered with. Your Lordships will observe that these 
 words Jire very peculiar. It is not '' any right or 
 privilege in the matter of education," it is only "any 
 right or privilege <.^i' the Protestant or Uoman Catholic 
 minority of the Queen's suhjects in relation to education ;" 
 that is to say, it must he some right or privilegt; which 
 a minority, as such, has under the Acts as against a 
 majority in a particular loctdity. 
 
 The Lord Chancellor . Not necessarily. 
 
 Mr. Co.zois-IIardf/. 1 mean it is not a right or privilege 
 which any one has, it nnist be some right or j)rivilcge 
 which persons in the character of a minority hav(\ The 
 language is very peculiar. 
 
 The Lord Chancellor. Is not light thrown upon that 
 by what we are certainly entitled to look at — »Sub-section 
 3 of Section 93 ? 
 
208 
 
 Manitoba School Case, 1894. 
 
 i I 
 
 Mr. Cozens Hanhj. They are identical words there. 
 
 The Lord Chancellor. Yes, but the identical words 
 there arc preceded by certain words the insertion oE 
 which of course was natural, havino- regard to the 
 provinces with which they were dealing, and the 
 insertion of which was necessary in this section. But 
 seeing that they are identical words, might not one look 
 at the preliminary part of Sub-section 3 of Section 93 
 to see what their object was ? 
 
 Mr. Gozenfi-Hard//. Yes, except this, of course — your 
 Lordship rather anticipated my observation — you do not 
 find those words at the beginning of Sub-section 2. 
 
 The Lord Chancellor. You of course would not, 
 because Section 93 was dealing with the provinces then 
 in or that might thereafter come in, to which those 
 words would be applicable ; Section 22 of the Act of 
 1870 was dealing with a state of things in which they 
 knew exactly what the provinces were. You do not 
 need the general words applicable to an existing or 
 future state of things in one or other of several provinces. 
 
 Mr. Cozens-ITard?/. No. It is legitimate, no doubt, 
 to look at Sub-section 3 of Section 93, but still the fact 
 remains that your Lordships must find as a fact, not 
 merely that rights and privileges given to the whole 
 conununity come under the Act, but it must be the 
 rights and privileges of the Protestant minority or the 
 Roman Catholic minority, as the case may be, in different 
 parts of Manitoba. 
 
 Jjord Watson. You say it must be conferred eo nonmie? 
 
 Mr. Cozem-IIardij. Yes. Just as your Lordships in 
 the Barrett case held that the only rights and privileges 
 which were preserved were privileges that any class of 
 persons had, so here the (mly privileges which are in 
 any way to be considered are the rights or privileges of 
 the Protestant or Roman Catholic minority of the Queen's 
 subjects. 
 
 Lord Shand. But supposing in any district there is a 
 minority, and that that minority is injured by the legis- 
 lation ? 
 
 Mr. Cozens-IIardji. If tlioy are injured, not as a 
 minority, but if every member of the community is 
 treated alike 
 
Manitoba School Cas^e, 1894. 
 
 209 
 
 lore IS a 
 
 The Lord ChanceJlor. With the reaiUt that the mmority, 
 Protestant or Catholic is injured. 
 
 Lord Watson. With the result that the minority are 
 not (|uite so well treated as they were before. 
 
 Mr. Cogens- Hard f/. My submission will bo wlien I 
 take your Lordships through the Acts, which I hope to 
 do very shortly, that there is no part of this K^gislation 
 which in any way does confer any right or privilege 
 upon th(3 Protestant or Roman Catholic minority. 
 
 The Lord Chancellor. Is it a privilege with reference 
 to education to tax your own pockets and so have 
 denominational education ? 
 
 Mr. Co.zens-IIard//. The privilege of paying the taxes ? 
 
 Zo?y/ Shand. The privilege of im])Osing taxes. 
 
 Mr. Cozenfi-IIard//. The whole taxing system of these 
 Acts is gone. They had ti certain exemption from 
 liability to pay taxes to schools of another faith. 
 
 Lord Watson. They had a subvention. 
 
 Mr Cozens-llardtj. Every school had a subvention. 
 
 Jjord Watson. Not in their character as a minority. 
 
 1 he Ijord Chancellor. This does not mean surely in 
 their character as a minoritv, but it means those who 
 from time to t'uie form the minority who may be Roman 
 Catholics at o. o time and Protestants at anotiier, and per- 
 haps Roman Catholics in one place and Protestants in 
 another. 
 
 Lord Watso7i. I should doubt if minority has the sort 
 of meaning you attribute to it. I think it ])lainly con- 
 templates where the majority was powerful enough to 
 carry in the Provincial Legislature measures which took 
 away that which the nuijority were willing to surrender, 
 but which the minority in the Legislature did not agree 
 to. 
 
 Mr. Cozens- Hard//. Your Lordship is interpreting the 
 word "minority" as meaning a minority in the i^egis- 
 lature. 
 
 Lord ]ratson. A minority in the state. They do not 
 have to go inio every village and find who is the 
 minority there, or into every district and find who is the 
 minority there, and give the minority in that district, 
 because they happen to be a majority in the other place, 
 no remedy. 
 
V I 
 
 2W 
 
 .Manitoba School Case, 1894. 
 
 Ml'. Cozens-IInrdi/. If that bo, your Lordships, true, 
 your Lordship is striking out the words "Protestants or 
 Roman Catholics." 
 
 The Lord ChanceUor. No, because it might be at any 
 future tine. At one time being a Protestant majority 
 and at another time a Catholic majority. At the time 
 this Act was passed it may have been contemplated that 
 the Catholics were likely to becom(3 a minority. 
 
 Lord Watson. It is quite obvious from the division 
 into districts under the Act of 1890 that there aie 
 Catholic and Protestant districts, and in some places you 
 find under the administration of that Act they are all 
 Catholics together, and in a great nuijority, but they are 
 the Legislative minority, and they feel aggrieved because 
 they have not any denominational schools. They have 
 unsectarian schools with certain rules, and they are 
 advised by an Advisory Board to use their discretion oC 
 saying what books Catholic children shall be allowed to 
 use in the course of education, and such religious exer- 
 cises as are permitted. 
 
 ^fr. CozenH-IIardi). I was going to refer to the passage 
 which Lord Watson has alluded to, namely that in 
 Manitoba it was perfectly notorious there were certain 
 districts in which there was a Protestant minority, and 
 certain other districts where there was a Catholic minority. 
 If that be the view I (pute admit that there may be 
 provisions in those intermediate Statutes 
 
 Lord Watson. They are people who, if they had been 
 a majority in the State instead of a minority, would 
 hfive taken care that that legislation would not have 
 become law. 
 
 Mr. Cozens-Hardfj. Then, my Lords, I have put to 
 your Lordships such observations as occur to me. 
 
 Lord Shand. Has it any different meaning than this — 
 that if in any district a minority, Protestants or Catholics, 
 are injuriously affected — that raises a question. 
 
 Mr. Cozcns-IIardjj. That is the view I desire to put 
 before your Lordships. 
 
 The Lord Chancellor. That nuiy be, but it is not 
 necessary to determine that. It nuiy be it includes 
 local minorities, but it is perhaps not necessary to 
 determine that. It includes also the total population. 
 
Manitoba School Case, 1894. 
 
 211 
 
 )us excr- 
 
 1 do not say it might not bo tipplicable to local minorities 
 but local minorities if on the poll a majority have pro- 
 tection in their own hands. It is not for the Governor 
 or the Dominion Parliament to interfere and set it aside. 
 It may bo the wishes of the majority of Catholics. 
 
 Lord Watson. One should not expect any person to 
 admit he had the matter in his own hands. He could 
 not establish, no matter how nmcli he was in the majority 
 anything but a non-sectarian school. 
 
 Mr. Cozcns-IIardi/. He could not. He can open as 
 many denominational schools as he likes. 
 
 2'ke Lord Chancellor. But he would have to pay his 
 quota to the other schools. 
 
 Ijord Wat.son. He cannot create a State-aided school. 
 
 Mr. Cozens-IIardji. No. State aid can only bo given 
 to such public schools as are contemplated by the Act. 
 
 Lord Watson. He would have to contribute to the 
 State-aided schools as well. 
 
 Mr. Cozens- Hard fj. My Lords, these are the grounds 
 on which, on behalf of the Legislature of Manitoba, I 
 submit to your Lordships that the Supreme Court of 
 Canada were right, and that the powers of the Legisla- 
 ture cannot be interfertul with in a matter which is intra 
 vires of the Legislature by an Appeal to the Ciovernor- 
 General of Canada, who apparently claims to exercise 
 his powers not in his judicial character but from political 
 considerations, which may be, and probably must be, 
 foreign to those which would have weight in Manitoba. 
 
 Mr. Ilaldane. M}' Lords, if I had been following my 
 learned friend, Mr. Cozens-Hardy, in an ordinary Appeal 
 I sjiould not have presumed to add much to what he has 
 sai I, but the magnitude of the case and, I may add, its 
 difficulty makes me desire again to touch upon some of 
 the grounds which he has already gone over. I promise 
 your Lordships I will not occupy an undue or long period 
 of your time. 
 
 The Lord Charicellor. The case is such, and its diffi- 
 culty such, that no excuse need be made for any assist- 
 ance you can render. 
 
 Mr. Ilaldane. I am sure I shall have your Lordships' 
 indulgence. Now, my Lords, there are two points which 
 my learned friend has stated at the opening of his 
 
212 
 
 .Manitoba School Case, 1894 
 
 l! 
 
 address, and on those two points not only am I bound to 
 concnr with him but I do most sincerely concur with 
 him. We are here to argue two matters of substance, 
 and two matters of substance only. Thejirst is whether 
 Sub-section 1 does not exhaustively delino the limits 
 which are set to the legislative powers ol' the Provincial 
 Legislature and whether the provisions of Sub-section 2 
 are not merely provisions ex])ressed in general terms, 
 covering, it may be, a wider field, but which are to be read 
 as consistent with, and not as cutting down the language 
 of Sub-section 1. That is the hrst point The .second is 
 whether the conditions of an Appeal to the Governor- 
 General have actually arisen by reason of the fact that a 
 ri^ght or privilege of the minority within the meaning of 
 Sub-section 2 has been affected ? 
 
 My Lords, there was a further (question which has 
 been much discussed in the course? of this case, and that 
 is whether we have any thing to do on this Appeal with 
 the British North Aniierica Act, 1867, or whether the 
 question was exclusively governed by Section 22 of the 
 Manitoba Act. To my mind that is a very important 
 (question. Your Lordships perha])S may be tak(!n to 
 have indicated that probably Section 22 contains the 
 complete code of the provisions subject to which ex- 
 clusive power in educational matters is given to the 
 Provincial Legislatnre. Whether it be so or not seems 
 to me to nuitter very little for the purposes of this 
 Appeal. I do not think on the one hand it much assists 
 the Respondents to Siiy that it does ; and on the other 
 hand it makes very little difference to the A])pellants. 
 
 21ie Lord Chancellor. Do you concede or dispute that 
 in the 93rd Section " j)rovincial authority " includes the 
 Legislature ? 
 
 Mr. Ilaldanc. I think, my Lord, that under Sub-section 
 2 it does indicate the Legishtture for some purposes. 
 
 2he Lord Chancellor. One further ([uestion. Suppose 
 in accordance with the provisions of Subsection o, or 
 within the terms of the provisions of Sub-section o. 
 denominational schools or separate or dissentient schools 
 were established in the province thereafter would the 
 rights intended to be protected in that case be only 
 those that had existed at the time of the Union. 
 
Manitoba School Cahk, 1894. 
 
 21d 
 
 Mr. TTahlana. Yes, T think so. 
 
 The Lord ChanccUor. What is the use or moaning o£ 
 putting- in the words "or is thereafter ostahlished " if 
 Sub-section o only applies in eitlier case to retain tliat 
 wliicli exists at the time ol' tho Union ? Why should the 
 prL'Servation of tliose riglits be in any wjiy (h'pcnih'iit 
 on an Appeal, or be dependent on an Act oi' the Dominion 
 Parliament ? 
 
 Mr. ITaldanc. I^ecauso it was not merelv to control 
 the Provincial Legislature ; it was meant to control Acts 
 of tho executive and the judicial authorities, as I read 
 the Section. 
 
 The Lord Chancel/or. Admitting that, would those 
 words have? been inserted, ''or is thereafter established 
 by the legislature," ii' it had boon intended and had 
 already becni enacted that you were to protect all those 
 rights existing at the time oC the Union, which is quite 
 independent of whether separate or dissentient schools 
 had been established or not. 
 
 Mr. Haldnne. As I road thes(^ words they are words 
 limiting the right of Appeal, and not very ;ipt words, 
 and it seems to mo that it is probable that it is for that 
 reason the expression is omitted when you come to 
 Sub-section 2 of tho Manitoba Act 
 
 The Lord Chancellor. Why should they have meant 
 to have limited the right of Appeal in the case of 
 provinces other than Ontario and Quebec to a province 
 which afterwards established separate or ilissontient 
 schools? The right of Appeal was a right of Appeal 
 to secure the protection given by Sub-section 1 to all of 
 them alike at the outset. 
 
 2Lr. Ilaldane. I answer that by saying that it appears 
 to me that the draftsmen of these Constitutional Acts 
 changed their minds when they came to Sub-section 2 
 of the Manitoba Act. My explanation of tho omission 
 of those words in the Manitoba Act is that it was made 
 when they found they had introduced an inapt limitation 
 to tho right of Appeal. Why in tho world should there 
 be that Hmitati(m in Sub-section o of tho British North 
 America Act, and yet when you come to look at it they 
 are words of limitation. 
 
 The Lord Chancellor. In one view it is perfectly 
 
■•waui 
 
 214 
 
 Manitoba School Case, 1894. 
 
 intelligible if what was intended to bo protected by 
 
 Sub-section 3 were 
 
 rights 
 
 then existinc; or thereafter 
 
 created in relation to denominational schools ; then it is 
 perfectly intelligible why they put in both limbs of 
 the Appeal part m Sub-section 2. 
 
 Mr. Ilaldane. Thoy have not said lliut in terms of 
 Sub-section 3 as drawn. 
 
 The Lord Chancellor. Something very much like it. 
 They have said " Where in any province a system of 
 separate or dissentient schools exists by law at the Union, 
 or is thereafter established by the Legislature of the 
 province." 
 
 Mr. Haldane. There is to be an Appeal. 
 
 The Lord Chancellor. An Appeal shall lie from what '? 
 
 Mr. Ilaldayie. From any Act or decision of any 
 Provincial authority. 
 
 The Jjord Chancellor. " Affecting any right or privilege 
 of the Protestant or Roman Catholic minority of the 
 Queen's subjects in relation to education." The system 
 of schools which was first referred to was a system of 
 schools for the benefit of the minority. The words 
 " separate or dissentient " indicates it. " Thereafter 
 established " appears to apply to separate or dissentient 
 schools, namely to schools of the minority. Does not 
 that indicate an intention where such schools are estab- 
 lished to give an appeal against any infringement of 
 rights in relation to such schools. 
 
 Mr. Haldane. I am not entitled to put a question, but 
 if I were I would ask why does not "right or privilege " 
 in that 3rd Sub-section mean right or privilege for the 
 time being, leaving the operation of Sub-section 1 un- 
 controlled ? That at any rate is my submission on the 
 construction, but I must come back to that 
 with my first point. 
 
 Now, my Lords, we have to construe provisions which 
 are admittedly and on the face of them difficult to con- 
 strue, and ambiguous, and for that purpose it seems to 
 me important we should bear in mind what the scheme 
 of the British North America Act was, because obviously 
 the Manitoba Act, which as your Lordships know by the 
 statute of the subsequent year was made an Imperial Act, 
 was passed on the lines of the British North America 
 Act. The British North America Act had a perfectly 
 
 in dealing 
 
Manitoiu School Case, 1894. 
 
 215 
 
 disiinc't ])laii. That pl.'iii is oxpresscd in tlio proaiiiblo 
 to tlio Act — lo establish a federal constitution in Canada 
 called the Dominion, includinn' in the term the "Dominion" 
 the ag^Te«2,'ate ol' the Provincial Legislatures as well as 
 the Dominion Parliament itself, and to provide for the 
 federal distribution of the executive power as well as of 
 the legislative power. The scheme of the Act is not to 
 make the i)omini(ui Parliament in any sense sovereign 
 or supreme over the Provincial Legislatures. The scheme 
 of the Act is to distribute. ' Federally " is an inaccurate 
 and inapt term, and how it came to be used in this 
 statute it is difficult to conceive ; but what really took 
 place was this : The Imperial Legislature intended to 
 part with certain functions which I suppose tlieorc^tically 
 are as much its functions to-day as they were then, but 
 which were delegated with tlie indication that the Im- 
 perial Legislature did not intend to interfere in Canadian 
 matters. They were delegated to the Dominion Parlia- 
 ment on the one hand and to the Provincial Legislatures 
 on the other hand. 
 
 Lord Watson. The intention was obviously to distri- 
 bute the whole complement of legislative power between 
 the two Legislatures. 
 
 Mr. Hahlane. Yes ; there is nothing reserved in terms 
 to the Imperial Parliament, and it has been only in rare 
 cases, in some matters relating to copyright and merchant 
 shipping and other international matters, that there has 
 been legislation which would affect the subjects which 
 were so distributed or delegated. 
 
 Now, my Lords, the scheme of the distribution was 
 not to make one Parliament supreme over the other in 
 matters which were delegated. The scheme of the 
 distribution was distribution proper by creating co- 
 ordinate Legislatures ; the Provincial Legislature exer- 
 cising such legislative functions as were, properly 
 speaking, of a provincial nature and the Dominion 
 Parliament exercising the other functions. There are 
 certain cases, two occur to mc at this moment, in which 
 there was a slight departure from this, but these two 
 were perfectly specilic. The case of agriculture is 
 mentioned in Section 95. The Provincial Legislature 
 may make laws as well relating to agriculture as to 
 

 216 
 
 i;V*; 
 
 Manitoba School Cxm, 1894. 
 
 immigration. But that, however, in subject to this, tliat 
 the Dominion Parliament if afterwards it shouUl think 
 fit to interfere may take that su])ject out of the liands of 
 the Provincial Locfislature. '^l^hen then; is unotlun* 
 
 instance, which is a little ditferent. You will ronicmher 
 that some of your Lordships sat and heard an A])p(!al 
 in a case that came before this Boartl last year about 
 bankruptcy and insolvency. 
 
 Lord ira^.s'072. There have been a fi^roatr number of 
 cases. There are a great number on the articles in the 
 specification in the Clauses 01 and i)2 which interlace. 
 
 Loi'd Shand. Section 1)5 is subject to this qualification, 
 " And any law of the Legislature of a Province relating 
 to agriculture or to immigration shall have effect in and 
 
 for the Province as 
 
 long 
 
 and 
 
 as 
 
 far only as it is not 
 
 repugnant to any Act of Parliament of Canada." Parlia- 
 ment seems to be the supreme authority there. 
 
 Mr. Haldane. When it is supreme it is said it is to be 
 supreme, and the question of agriculture is so far as I 
 am aware the only one in the Act in which there is a 
 provision analogous to that. When it is intended that 
 the Dominion shall have power to take matters out 
 of the hands of the provinces, as it was in that 
 case, it was so said. With reference to the observation 
 of my Lord Watson as to the subjects interlacing, your 
 Lordships have laid down more than once that they do 
 not theoretically interlace, but that subjects that are 
 within Dominion cognisance in one aspect (I am 
 endeavourhig to quote the words of one of the decisions 
 of your Lordships' Board) are within provincial cog- 
 nizance in another aspect. 
 
 Lord Watson. So long as the Dominion do not legis- 
 late. 
 
 Mr. Haldane. The Dominion, of course, having regard 
 to the provisions of Section 92 cannot legislate in any- 
 thing properly provincial. You have only to look at 
 Section 92 to see it has no such power. What there is 
 is this. All matters which are of a provincial nature or 
 of a nature exclusively under Section 92, are within the 
 competence of the Provincial Legislature, and your 
 Lordships have ruled time after time at this I3oard that 
 attempted legislation by the Dominion is absolutely ultra 
 
Manitoba School Case, 1894 
 
 217 
 
 cog- 
 
 legis- 
 
 vircK if onco you got thai condition oHtablishcd. Tlicro- 
 for(5 it cannot bo 8jii<l tluit liicre in any indication in the 
 Act of any intention on tlit^ part of the Iinj)crial Pariia- 
 luimt that the Honiinion Parliament Khould liavoanover- 
 lianling power. '^^Fliat is not tlie sclieni(>. It is only 
 wlien you get what is outside Section 1)2 — it niay be it 
 is anotlier aspect of tlie same subject, but still it is an 
 aspect that is outside — that you iind it in Section 91 ; 
 and 1 was reminding your Lordships of your decision 
 last year in the insolvency case in which yoii held that 
 notwithstanding bankruptcy and insolvency belong 
 to the Dominion it still was competent so long as 
 there was no Dominion legislation for the province 
 nnder " Property and Civil Righ*^s " to deal with some 
 things, which in oni; aspect would belong to bankru])tcy 
 and insolvency. Ihit that is not an interference with 
 the absohite co-ordinate power of the Provincial Legis- 
 lature. It is simply this, that your Lordships held that 
 on the true construction a certain matter came within 
 Section 91. 
 
 Now, my Lords, that being the Scheme of Sections 5)1 
 and 92, and all other cases such as that of agriculture 
 being specdally dealt with, what your Lordships would 
 expect to find, if it had been intended or oven contem- 
 plated that the Dominion Parliament should in the 
 present case have authority in respect of the legislation 
 of the provinces, would be that that should be given in 
 clear language. It may be that it has been given in 
 clear language. That is the question to bo determined. 
 
 7'he Lord Chancel/or. Education has a code to itself. 
 I am not sure that what you have been saying really 
 tells in favour of your argument particularly, because 
 that is dealt with exactly. Educational (luestions would 
 come within " Property ;ind Civil Rights" in the pro- 
 vinces. I suppose legislation as to education would 
 
 come within legislation as to civil rights. 
 Mr - . - . 
 
 the end. 
 
 The Lord Chancellor. Ihit you have it taken out of the 
 general provisions dealing with either the power of the 
 Dominion Parliament or the exclusive power of the 
 Provincial Legislature as a thing which cannot be dealt 
 
 Ilaldane. It might be so, or "local matters " at 
 
218 
 
 Manitoba Scfiool Case. 1894 
 
 r'' 
 
 with un(l«T either of tliein. Tl miiHt be deah willi l»y 
 itKcir. 
 
 Lord Wittsnn. V \\\\\'v. no doubt th(' province would 
 have ])Ower under the lOlli liead " (ienerully ''M uialters 
 of a merely h)eal or private nature in the provineeH'" 
 
 Mr. Ilaldanc. I tliiuk it is poHsibh^ it nii^'ht have been 
 held to come under that. 
 
 Lord Watnon. It is a matter purely local. 
 
 Mr. Ilnldanc. It is trc^ated st^pjirately, but the point of 
 my iir^ument is not (piite that. It is this, that the 
 Scheme bein^- that of co-or<Hnale distribution when you 
 come to the Code of Education in tiie 22nd Section of 
 the Manitoba Act, which I will take as the section on 
 which I shall arg'ue, vou have the matter assi^-ned in 
 the first instance to the Provincial Legislature, I (piite 
 aduiit " subject and according to the following pro- 
 visicms," but you begin by having education assigned as 
 a matter with which the provincial authorities deal. 
 
 The Lord ChanccUor. Would you dispute that the 
 whole of the educational code of this Act suggests a 
 distrust in this issue of the Provincial Legislature ; tliat 
 there is a fear that they m.'iy not deal fairly with the 
 rights of the minority ? 
 
 Mr. ifaldane. With the rights of the minority as par- 
 ticularly specified. How are they specifiecl, is the 
 question. 
 
 The Jjord Chancellor. That is another thing. Is not 
 that the basis of these educational provisions, that it was 
 not proposed to trust entirely, as in other cases, to the 
 power of the majority to determine what the legislation 
 should be. 
 
 Mr. Ilaldanc. T think it is so. I think it is intended 
 certainly to make some special provision. But now, 
 my Lords, that does not so far aftect the point which 1 
 am upon, which is, that we start with the assignment of 
 education to the Provincial legislative authority, and 
 certain limitations and certain limitations only defined 
 as limiting that right, and when you come to the con- 
 struction of the limitative provisions, we suggest to your 
 Lordships as the canon of construction, that things must 
 be presumed to be within the competence of the Pro- 
 vincial Legislature, excepting in so far as they have 
 
Manitoha School Cahk, 1894. 
 
 219 
 
 buL'Ti taken away by tliu limit ativo provisions. 
 
 Lord WatHon. I thinit you aro ontitliul to make that 
 observation by the' terms of the chiiisu itself. 
 
 Mr. Hahkuic. Yes. 
 
 Lord Watmn. Thou it lias on the other Hi<le to be 
 slit^wn tliat this is ont; of the matters excepted. 
 
 Mr. Ilaldanc. The bunion must be ou them to slunv 
 it is so. 
 
 Lord Watmn. It does not rc^st on that only. 
 
 il/r. Ild/dane. Of course it is always a (piestion of 
 construct i(m and a question of construction merely ; but 
 we start with that. 
 
 Now, my Lords, that being' so, and bearing that in 
 mind, I pass to the construction of the Section, and this 
 is the construction which I suggest for your Jjordships' 
 consideration : that Sub-section 2 exhausts the limita- 
 tions upon the legislative powers of the Provincial 
 Legislature. Starting with that presum])tion that the 
 Legislature is to have the supervision of educational 
 nuitters and tlu^ power of legislation, and starting with 
 this that you have got these words spec if y in <^ the 
 provisicms according to which the right is limited, you 
 come in Sub-S(;ction 1 to what I suggest is the only 
 limitation upon the power of the Legislature to nuike 
 laws. It is not to prejudicially affect any right or 
 privilege with respect to denominational schools which 
 any class of persons have by law or practice in the 
 province at the Union. If those words had stood alone 
 there would have been no doubt they would have been 
 equivalent to an affirmative statement that in respect of 
 any other legislation the Provincial Legislature had 
 complete competence. Then we come to Sub-section 2, 
 and the question is whether Sub-section 2 cuts down 
 what has already been stated in Sub-section 1. 
 
 2'he Lord Chancellor. Cuts down ? I do not under- 
 stand that. 
 
 Mr. Ilaldane. Yes. 
 
 The Lord Chancellor. Do you say it cuts down ? 
 
 ^[r. Ilaldane. I say it does not, but in Sub-section 2 
 you have merely general provisions to be read consis- 
 tently with what has gone before. 
 
 The Lord Chancellor. I do not think anybody suggests 
 
•««■•■ 
 
 220 
 
 Manitoba Rciiool Cahk, 1894. 
 
 t t 
 
 it cuts down, r iliou^'lit the Hii^'^'obtioii had hocii llial 
 it (Milar^'od. 
 
 Mr. Ildhhini'. On Su])-H('ction 1 I liavo Hlal(Ml wluil 
 my ar^iiiiu^iil in : lliat you liavo ^'ot an cxliaiislivii 
 iltilinilion of hucIi liniitalioiiH as llu'rc ai«' upon llic 
 l(!^MKlaliv(' j)o\v('i' of I Ik; Provincial anlliority. 
 
 Lord Shiind. ^'ou aro ^'<»i>'^;" "n to Hay llial Sub-section 
 2 deals merely with rights which persons had at tho 
 Union ? 
 
 Mr. llahUinc. No, my Lord, not tiecessarily so in tli(! 
 case of non-legislative Acts and decisions. 
 
 fjortl Shmul. It is contended on the oth(>r side tiiat it 
 deals with rights thai persons may luivc ae(|uired i)ost 
 Union. 
 
 Mr. /f(f/(/(tnr. That, is not qnife my argument. Tn 
 Sub-section 1 you have negatively a restricti(m u])onihe 
 power oi' the JjCgislature and allinnatively a statement 
 by implication that the Legislature has complete j)ower 
 to make any law as to education it pleases provided they 
 do not infringe rights and privileges at the Union, and 
 as incident to that there is an Appeal if a law is so made. 
 
 The Lord Chancel/or. You cannot separate it from 
 thii^, that these ])ower8 are all subject to the whole of 
 tho following provisions. 
 
 Mr. Jfnidane. T am taking it step by step, and I am 
 asking whether it is not possible to come to a construc- 
 tion of these two sections, which will leave the language! 
 of Sub-section 1, which it is to be obse. vod expressly 
 limits the restrictions of the legislative powers ti> such 
 rights as there aro existing at the Union— whether it is 
 not possible to so construe the language of Sub-section 2 
 lis to leave Sub-section 1 operative as fully as according 
 to its language it would have been if it stood alone. My 
 objection is that there is no inconsistency between Sub- 
 section 2 and Sub-section 1 ; that Sub-section 2 in no 
 sense cuts down what is given by Sub-section I. Sub- 
 section 2, I suggest to your l^ordships has a much wider 
 operation and bearing and is of much wider scope than 
 Sub-section 1 , It is intentled to deal not merely, perhaps 
 not even primarily, with legislative matters but with 
 the executive and judicial authorities in the Province. 
 
 21ie Lord Chmwellor. Judicial, do you say ? 
 
Manitoua ScirooL (Jakk, 18U4. 
 
 221 
 
 Mv. Iltilditnc. I think HO. A ('ourt would l)o ii pro- 
 vincial auliioiily, and I will tell your LordnIiipH why. 
 Lot uio remind vour liordshipH lirst that at the date of 
 tho paHHiiin- of tfiis Act in ISTO and in 1S71 when tho 
 Imperial lie^^islature conlirini'd it, there was no Supreme 
 (!ourl in ( 'ana(hi. 'I'here wan power under the ilrilish 
 Noriii America Act to or^-anisi' one, hut none had Keen 
 or^'anised. On these federal tpiestions the Appeal would 
 ha\(' had to come straight to yoin* Lordships' hoard, and 
 that would have heen a very serious and onerous thin^' 
 for the dalholic ndnorily to have uudertakcMi. 
 
 Tlie Lord Chanct'llor. What tho .hul^'e did would ho 
 the interpretation of the l;iw intra n'ras. 
 
 Mr. Ihihhtnc. Ves. 
 
 The Lord (JlKUiccllor. TIumi was the (iovernor-iJeiu'ral 
 in Council to decide that tho Jutl^'o had nUHintorpruted 
 tho law ? 
 
 2fr. Ifiddanp. Yoh. 
 
 'Tlir Lord ClKuiccllor. That is rather stiirtlin^'! 
 
 Lord M(irn<tf//dfn. A (Jourt of Ap[)eal on matters of law 
 from th.e iloeision of a com[)et(;nt .Lidi;'o ? 
 
 Mr. Ilaldanc. A Court ol' Appeal froi:> ;i (le(Usionofa 
 Provincial (Jourt, which was the only Court which could 
 give .lud^inont. 
 
 Jjor<l MdnuKjhten. Ft is a most startling- su^'gi^stion. 
 
 The Lord (Jhnncellor. An id)soluto ('ourt with an 
 u])pi'al to this ])oard. Supposing tho (lovornor-Uonoral 
 in CJouncil said it was ultra vires and rcMpiestod tho 
 Dominion Legislature to legislate, and then it oanu; up to 
 this JJoaril and this Hoard hehl it intra rire.^^ that would 
 create an awkward situation. 
 
 Mr. llaldane, Tho position which tho Governor- 
 General and tho Dominion Legislature wouhl have boon 
 in wotdd bo a matter Tor them to consider, but it seisms 
 to me these words are wide enough to cover the releronce. 
 It is called an appeal in terms and it is s[)oken of as a 
 decision. Take the words from the beginning, '' An 
 appeal shall lie to the Governor-General in Council Irom 
 any Act or decision of the Legislature of tho I'rovinco or 
 of any Provincial authority." Snpi)osing the Governor- 
 General under that Act were deciding a question of the 
 validity of a bye-law, how could it have been raised aB 
 
■''^■'■MiMmiiBn 
 
 222 
 
 Manitoba School Case, 1894. 
 
 an answer to him that there was a decision of a Judge of 
 the Queen's I^ench in Manitoba affirming the vahdity of 
 the bye-law. 
 
 The Lord Ghancclhr. There are only two remedies 
 given : The first is in case they do not pass the Pro- 
 vincial law he reijuires them to pass, or in case a decision 
 of his is not duly executed by the proper provincial 
 authority ; that is to say, if he has reversed the judguient 
 and eflect is not given to it by the Court beh)w. 
 
 Mr. ITahlane. It may be unusual, but the whole situa- 
 tion is unusual. You have here a position of matters in 
 which it was desirable to protect the rights of minorities 
 and in which there was no way of dealing with the 
 Acts of the local authorities of the Provinces, except by 
 the expensive process of Appeal to your Lordships here, 
 and further than that, in which there was no machinery 
 by which the minority, whether Protestant or Catholic, 
 could bring the (juestion of the validity of legislation 
 before any tribunal at all. 
 
 Lord Watso7i. In the Winnipeg case it was said, 
 " Their Lordships are satisfied that the })rovisions of 
 Hub-sections 2 and 3," that is the Manitoba Act, ''do 
 not o])erate to withdraw such a question as that involved 
 in the present case from the jurisdiction of the ordinary 
 tribunals of the country." 
 
 Lord j\facnagJden. Mr. Haldane says it does not with- 
 draw it, but it nuikes the Governor a Supreme Court o^ 
 Appeal from the decisions, and if the Court below will 
 not make the order of the Goveruor-General an ordi^r 
 of that particular Court, then he has to apply to tho 
 Legislature — a most extraordinary position to put 
 Judges in — theru being also a right of Appeal I suppose 
 to her Majesty in Council. 
 
 Mr. Ihddanc. A right of Ap})eal, no doubt, if the 
 prerogative is exercised. 
 
 Lord Macnagldcn. That woidd get them in a very nice 
 mess. 
 
 Mr. Ilaldanc. Your Lordships put that difficulty, but 
 I put another difficulty. 
 
 Lord Watson. Supposing the Legislature were to say, 
 "We will abide by the decision of the Court. The 
 Court have held this wrong. We will take it oti' the 
 
Manitoba School Case, 1894. 
 
 223 
 
 Statute l)Ook." And then you Appeal, and the Governor- 
 General says, " This must de amended and made an 
 Act." 
 
 Mr. Ilnhhnie. Lord ^^'atson suggests it to me as if it. 
 were a ditlicuhy tliat arose out of my argument, but it 
 must -irise out of the terms of the Statute whenever an 
 Appeal is brought on the allegation that a right (U' pri- 
 vilege has been infringed. What is that in nine eases 
 out of ten but a (luestion of law. Supposing there has 
 been a decision of a Magistrate at Manitoba on the sub- 
 ject, is the Governor-General bound, or his action 
 fettered ? Can the Dominion rarlianumt be excluded 
 from legislating ? 
 
 Lord 11 rt^A'ow. The Statute may be made consistent in 
 that view by reading it in this way, that Sub-section 1 
 gives an absolute remedy for every interference that 
 falls within it, every interference with a right or 
 privilege existing at the date of the Union, and a separate 
 provision was made for rights and privileges springing 
 up afterwards which are not dealt with in Sub-section 1. 
 
 Mr. llaldane. That is a possible construction, but there 
 is another construction ecjually possible, and that 1 ven- 
 ture to submit. It is the one I am suggesting to your 
 Lordships. It may involve in the functions of the 
 Governor General that he might decide constitutional 
 ({uestions and (Questions of law. It may involve in it 
 that he uuiy not be obeyed. 
 
 Lord Watson. It had ceased to be a constitutional ([ues- 
 tion, and resolved itself into a mere ([uestion of I'act. 
 The decision is such tlia* in one way it necessitated iho 
 applicatiim of the Act which made the Act of the Pro- 
 vincial Legislature voiil. When that provision was 
 made in Sub-seclion 1 that (pieslion appears to me to 
 have ceasetl to be a constitutional <[ueslion, and to have 
 resolved itself into a simple ([uestion of fact. 
 
 Mr. ITaJdanc. Take it upon the const ructioii u'hich 
 has been expressed by some ol" your Lords) ps, and 
 which I am eiideavouring to condjat. 
 
 Lord ll'alfion. What constitutional (piestion has the 
 Court to consider when it is merely determining 
 whether such privilege existed 
 
 Mr. llaldane. Perhaps 1 used the word " Constitu- 
 
224 
 
 Manitoba School Case, 1894. 
 
 tional " inaccurately there ; it is a question of law 
 
 Lord Watson. Whether a state of things existed that 
 l)rou<2,"ht into operation a condition of nullity inijiosed by 
 Act of Parliament. 
 
 The Lord Chancellor. If you were onc(3 to concede 
 that Sub-section 2 ap])lied to rig-hts and privileg-us 
 acquired by post-Union legislation, or including them at 
 all events, the (piestion whether a right or privilege had 
 been aftected really would be a ({uestion of fact in Ji 
 sense. You may say it is a cpuistion of law possibly in 
 a sense, but not in the ordinary sense, because there 
 would be no difficulty in any person of connnon sense 
 determining whether what had been given, which was 
 for his benefit, was taken away. It would not be a 
 question oC law 
 
 J/"r. Ilaldane. It would be a question whether this was 
 a right or privilege of the minority always. That is a 
 (piestion of law. 
 
 llie Lord Chancellor. It may be in that sense a 
 question of law. 
 
 I\[r. Ilaldane. 8o muuli so that it is submitted, and the 
 sixth (piestion on which the Governor-General has asked 
 your Lordships' assistance and advice is whether this 
 particular Act of 1890 does infringe a right or privilege 
 of a minority within the meaning of Sub-section 2. 
 
 The Jjord Chancellor. IJecause the contention is that 
 that covers the point that the second Sub- section does 
 not cover any right or privilege accpiired aftei the Union. 
 
 L';". Ihddane. I think more than that. It is not put 
 so. That is not the way ^Le (pu'sticm is put. The 
 (question which is put is this 
 
 Lord Watnon. That is splitting one (question, or two at 
 the outside, into six. 
 
 Mr. Ilaldane. " Did the Acts of Manitoba relating to 
 education passed prior to the session of 1800 confer on 
 or continue to the minority a ' right or privilege in 
 relation to education ' witliin the meaning of Sub-section 
 2 of Section 22 oi' tlu^ Manitoba Act." And then it puts 
 a number ol" altenuitives, I need not ccmsider it yet in 
 detail, but that seems to me to be the question which 
 your Lordships, I will not say are bound to advise upon, 
 because you are not bound by any Canadian Statute at 
 
Manitoba School Cake, 1894. 
 
 225 
 
 sense a 
 
 all, but which the Canadian Statute which makes you a 
 Court of Appeal ml hoc from the Suju'eme Court, necessi- 
 tates your answering. 
 
 Lord ]ratsofi. It is a mere corollary of answers given 
 by the previous questions 
 
 Mr. Hnhlane. I think so 
 
 Lord Watson. If these words in Sub-S(H!tion 2 include 
 any right or privilege conferred by a Statute intermediate 
 betwecm the date of Union and that of 18i)0. 
 
 Air. Haldane. I misunderstood your Lordship in sug- 
 gesting an affirnuitive answer. Still there remains the 
 point ; but li is an abstract and acatlemic ([uestion which 
 nobotly may ever raise. 
 
 Tjord Watson. All we have got to say is whether it 
 raises such a prima jado case that the Governor- 
 General ought to proco(3d with the Appeal. 
 
 Mr. Haldane. The Government of Manitoba is not 
 here to argue at your Lordshii)s' Bar an abstract or 
 academic question on the Constitution. They are only 
 here because they hold that a condition precedent to a 
 right of A])])eal ro the (xovernor-Geueral has not arisen. 
 
 Jjord Watson. If there is any intermediate privilege 
 conferred it is unnecessary for us to decide whether it is 
 struck at by the Act of 18^0. 
 
 ^fr. Blake. Yes, that is one of the questions. 11' your 
 Lordship will look at the latter part of the sixth (piestion, 
 it is llie last limb of the sixth question. 
 
 Lord ]\'atson. Whether the Act of 1890 aft'ects any 
 right only in such manner as that an Appeal will lie. 
 That is all. 
 
 Mr. lilake. (^uite so. 
 
 The Lord (^haneeUor. It seems to me that if Sub- 
 secti(m 2 refers to privileges and rights created by post 
 Union legislation, tlien it is a (Question of fact for the 
 Government to determine, rather than a <| uestion of law, 
 whether any privileges or rights acipiired by post Union 
 li'gislation were being interfered with by the Acts of 
 1890. 
 
 Mr. Haldane. Can it bo said to be a ([uestion of fact ? 
 If we are dealing simply with the right or privilege 
 which is the creation of Statute, surely the condition 
 precedent of the (xoverno}- General's Appeal arises on 
 the consideration of the two Statutes. 
 
"•■■■HiMii 
 
 226 
 
 Manitoha Scii(>ol Cask, 1894 
 
 
 The Lord (Jhmiccllor. But it may be a (luestion ol' 
 fact, and not oni^ of law. Tliei't' is no mystery about 
 the words " right or privile<i,e." A rig'lit is a rii^'lit and 
 a privilege is a privilege, and the (jiiestion is whether a 
 man's rights become less or his privileges berome less. 
 If so they are affeeted. 
 
 Mr. Ilahlane. The learned Judges in the Court below 
 who assumed a good many things, seem to have assuuK^l 
 that this was a simpler question than we venture to 
 suggest to your Lordships it is. I will keep that point, 
 and say a few words on it when I come to 8ub-si'ction 2. 
 I am anxious to follow out just now a point that arose a 
 few minutes ago on the position of the Governor-General. 
 As I understand the other side it involves this, that if 
 the meanest Court of Manitoba had given a decision that 
 a Statute was intra vires the jurisdiction of the Governor- 
 General was ousted. It conu:'S to that. 
 
 The Lord Chnncellor. Nobody suggests that though 
 intra rires, it might still be mattci of appeal to him. 
 
 Air. Haldane. Well, my Lord, that is hardly our pro- 
 position. 
 
 The Lord Chancellor. No, your proposition is not that. 
 
 ]\[r. Haldane. Still — matter of appeal to your Lord- 
 ships here. Let me point out this. It might have been 
 some man in humble circumstances sued for his school 
 fees or school rate that he had not paid up, and he 
 would not be likely to incur the expense of coming here. 
 In that case it might well be that it was not competent 
 to the Catholic minority as distinguished from the 
 individual party to raise the question. It might well be 
 in the contemplation of those who framed the Act that 
 it was desirable to give to the Catholic minority an 
 appeal to another tribunal, that tribunal being the 
 Governor-Cireneral, who as we know is not only able to 
 get the assistance of his Council and now of the 
 Supreme Court, but even if necessary to get the advice 
 of this Board. It may well be that that was the inten- 
 tion of those who I'ramed those ])rovisi()ns, and I suggest 
 that that was so, that when you come to these (pu'Stions 
 involving the rights of minorities, it was intended 
 to constitute the Governor-General a special tribunal 
 to deal with them, dealing it may be to a limited extent 
 
Manitoba School Case, 1894. 
 
 227 
 
 with mattera of policy, but probably deal^^^' with these 
 (iuestions which indeed were the only (iiicstions which, 
 in the first instance were submitted to him, whether 
 the ri<i;ht or privilege of a minority had been interfered 
 with. 
 
 Now observe how consistently that construction woiks 
 out. Taking the first yecti(m it exhaustively defines the 
 competence of the Provincial Legislature. The second 
 sub-section deal with all sorts of acts. It would deal 
 primarily with executive and administrative acts. 
 
 llie Lord ('Ita?iccI/or. Not primarily, because the other 
 is mentioned first. 
 
 Afr. Hahlane. I will tell your Lordship why I say 
 primarily. Because in Sub-section 3 of Section 93 of 
 the British North America Act it seems, whatever may 
 be the scope of the words they have used, that in using 
 the words " Act or decision of the Provincial authoritv " 
 the Legislature was contemplating executive and 
 administrative authority. 
 
 The Lord (Ikanccdlor. When they c;ome to derd with 
 Manitoba, if that is the principle, they put the legisla- 
 tive in tlie fore front to show there is no mistake about 
 it, and that they are thinking of that first. 
 
 Ml'. Ilaldnne. Quite true. liut they take the words 
 " Act or decision," which are the words they have 
 selected in contra-distinction to " law" in the beginning 
 of the Section from the British North America Act, ancl 
 they make use of them in a sense still contra-distinguislujd 
 from " law," whicl\ I suggest shows they primarily had 
 in view executive and administrative acts. 
 
 Ijord Shand. What aduunistrative or execvtive act do 
 you suggest as an act of the Legislature ? 
 
 Mr. HaJdaiie. It may be that the Legislature may pass 
 a Resolution. 
 
 The Jjord Chancellor. The Legislature consists of the 
 Lieutenant-Governor jind the House, and therefore no 
 Resolution would be an Act of the Legislature. 
 
 Mr. Unldane. Supposing that was so, and sup})osing 
 that the Legislature meant nothing short of the three 
 component elements ? 
 
 Mr. Blal-e. Two. 
 
 Mr, Hahlane. I thought there was an Upper Chamber. 
 
228 
 
 Manitoha School Case, 1894. 
 
 TTWimKfTZ V 
 
 Mr. Ji/al'e. That was abolished many years a^o. T 
 did it. 
 
 Mr. Ilaldane. T only know it from what it was under 
 the original Statutes. 
 
 Mr. Blake. There was an Upp(>r House of seven ; a 
 nominated Houses 
 
 Mr. Ilaldane. My friend, Mr. I^lake, ainono-st tiie 
 interesting things hc^ told us, did not tell us how it was 
 abolished. I was under the impression that at the time 
 when the Legislature of Manitoba was eonstituted there 
 were two Houses. 
 
 The Lord Chancellor. There were two at this time, in 
 1870. 
 
 Mr. Ilaldane. I think there were. 
 
 Mr. Blal-e. Yes, it was so till it was abolished. 
 
 The Lord OnanccUor. Then the Legislature here 
 meant the Lieutenant Governor and the two Houses. 
 
 Mr. Blake. That is (juite true. 
 
 Mr. Ilaldane. That is so. Assume the Leti'islatun' 
 meant the complete Legislature, and that that term was 
 not wide enough to cover the resolution of one House or 
 two Houses, without the assent of the Jjieuteuant- 
 Governor, still that leaves me scope for the section, and 
 abundant scope. If I am right in sa}'ing that the 
 Governor-General was not to be bound by the decision 
 of the Manitoba Tribunal in the conclusions he came to 
 as to what I have called constitutionality, perhaps 1 had 
 better call it idtra vires to avoid confusion, it might well 
 be that an Act was passed by the Manitoba Legishiture 
 which contravened the provision of the Sub-section 1 
 and was theretore void, and yet had been pronounced 
 by the Manitoba Tribunal, taking too friendly a view of 
 the rights of the Province, to be intra riren. My Lords, 
 then you would leave upon the vStatute Hook administered 
 by the Courts an Act of the Manitoba JjCgislature which 
 it would be extremely expedient to get rid of. It is 
 obvious it would be desirable to have somethin<>" more 
 than a bare abstract decision, and that there should be 
 legislation following upon that which should declare the 
 true position of matters upon the (question of ultra vires 
 or i?itra tires by way of enforcing the decision of t\w 
 Governor-General, and what I am suggesting to your 
 
Manitoha School Cask, 1894. 
 
 229 
 
 Hovon ; a 
 
 s tiino, in 
 
 Lor(lHlii])H is tliai Sub-section 2 luis boon drawn in wide 
 and general jernis, wide and general enouo-h to eov(>r 
 acts or decisions of" the Legislature, not really "laws," 
 because void, for the word "decision" applies to the 
 Ijcgislaturo, too, of that nature. It was also primarily 
 intended to cover executive and a(hninistrative acts of 
 the atithorities in the provinci\ 
 
 Now, ni}' Lords, if that construction is the right one 
 it harmonises both. It makes Sub-section 1 a complete 
 code of the limitation of the power of the Legislature ; it 
 makes Sub-section 2 doal M-itli those othermatters which 
 tlu) Governor General had to be cognizant of, and which 
 might be concerned with rights or privileges for the time 
 being existing, and the infringement of those by the 
 executive. 
 
 y/'e Lord ('hnncclfor. Why? How for tlie time being 
 existing? All that Sub-section 1 deals with is those 
 wliich existed at the Union. 
 
 J/r. Hahlane. I am talking of Sub-section 2. 
 
 TJie Lord ('Ji<tnrt'l(or. If Sub-section 2 deals with others 
 than those existing at the Union you must concede that 
 it deals Avith rights that have arisen after the Union 
 came into existence. 
 
 Mr. Hahlane. Bnt subject to the power of the Legis- 
 lature to repeal or alter. 
 
 Ihe Lord Chancellor. If yon concede that rights of the 
 minority in relation to education include rights ac(piired 
 by post Union legislation, then an appeal against an Act 
 depriving them of any of those rights would come within 
 the hmguage of Sub-section 2. 
 
 Mr. Hahlane. An Aj^peal from the administrative or 
 executive authority, but not an Appeal from the legislative 
 authority. 
 
 The Lord, Chancellor. The Act of the Legislature, and 
 the Act of the Judicial Authority are put on the same 
 footing exactly. 
 
 Mr. Llaldane. There is no difficulty in reading the 
 section as I put it, because I am merely asking your 
 Lordships to read it so as to leave intact what I have 
 called for short, the code contained in Sub-section 1 as 
 to rights and privileges at any time, but rights and 
 2irivileges only so long as tliey exist. It does not take 
 
230 
 
 Manitoba School Case, 1894. 
 
 away tho ri^lit of a paramount and oxclusivu aiitliorit y lo 
 alter tlioHO ri^lits and privileges. 
 
 The Lord Chancellor. Tliat is a very fooblo protection. 
 As long as the Legisl.ature has left them, yon can appeal 
 against an administration wliicli contravenes the intention 
 of the Legislature, hut the Legisliitiu'e may sweep theui 
 altogether away, and against that you have no protection 
 at all. That is a very imperfect protection. 
 
 Mr. Haldanc. My answer to that is that wlieu respon- 
 sible Government and when representative Govern- 
 ment were given, as they were by these Acts, to the 
 Province of Manitoba, it was intended to enable the 
 majority to prevail, subject to such limitation as in this 
 Act is introduced. If you were going to introduce such 
 restrictions as would confer the whole jurisdiction over its 
 educational laws on another authority, surely it would 
 have been natural to say so. It is a very substantial if 
 not a very strong protection on the one hand. I do not 
 think it is very strong, and I doubt whether it was 
 meant to be, and anything else would certainly be a 
 most unusual and extraordinary way of dealing with the 
 matter. 
 
 The Lord Chancellor. Is it so extraordinary when yon 
 remember that this was an arrangement made as one of 
 the terms on which the Union was to be effected ? It 
 would be shutting one's eyes to the most obvious facts 
 which were exhibited on the face of the IJritish North 
 Amerija Act itself, if one were not to see that one of the 
 obstacjles to this Federation Scheme was the fear of 
 educational legislation in the separate or distinct pro- 
 vinces which might affect the position of those who 
 desired a denominational education. That runs through 
 all the provisions of Section 93, and it appears to me to 
 be on the face of Section 22 also. Therefore it is not 
 extraordinary in that case to find limitations and safe- 
 guards and superior legislative power given to the 
 Dominion Parliament, which represents the country as a 
 whole. It does not strike me as extraordinary. 
 
 Mr. Haldane. The general proposition, I agree, is not 
 so anomalous, but it is the way that it is carried out. 
 That is if it was meant to be done, my submission is it 
 would have been done in some specific form. 
 
Manitoba School Casi:, 1894. 
 
 231 
 
 )rotooti()n 
 
 The Lord (litincrllor. Ih it carried out in such an 
 anoiujilous way ':* What it docH is this. It ^'ivoH 
 the iiltiniato rcMiicdy in this form hy lo^'islation by 
 tlic Donnnion Parliament, vvliicli otliervvise lias no power 
 to k\i;'islate on any sucli matter in the ])rovince. That 
 is the uHimate rciinody. It interposes betwecm the 
 Action ol" tlie Dominion rarliament and the Provincial 
 Jjcgislaf ure, the (ioviu'nor, and his consideration ol' the 
 matter, and his decision, and therefore it is a check 
 upon tli(? interference by the Dominion Parliament in its 
 legislative capacity with the province us regards 
 education. 
 
 Lord j\ft(cna(j/de)i. And the Dominion Parliament 
 cannot interfere, I suppose, unless it is asked to do so, 
 and they are not bound even then. 
 
 Mr. Haldanc. You couhl not bind them. Nobody 
 ever heard of bintling a legislative body. II' it had been 
 intended to adopt a scheme of that kind I could have 
 understood it, but that is not tlu^ scheme. 
 
 The Lord (liancellnr. That is just tlu^ (|uestion. I 
 tiiought you were saying that that could not bo the 
 construction of this si-cticm, because that would be such 
 an extraordinary and anomalous scheme. It w.is to that 
 iny observation was directed. If it is not the scheme, 
 there is an end of it. 
 
 Jjord Widson. Were thos(^ provisicms really a matter 
 of arrangeuumt between the Dominion Parliament and 
 the province '^ The provisions of the British North 
 America Act do not include Manitoba, but it was 
 admitted on no other terms. It is Section 14G, "It shall 
 be lawful for the Queen, by and with the advice, and so 
 on," on Addresses from the Houses of the Parliament of 
 Canada, and from the Houses of the respective Legis- 
 latures ot the Colonies or Provinces of Newfoundland 
 and Prince Edward's Island iind IJritish Columbia," 
 which have all been admixted, and then on other 
 Addresses respecting Rupert's Land and the North 
 Western Territory to admit, and so on, " all or each of 
 them into the Union on such terms and conditions in 
 each case as are in the Addresses expressed, and as the 
 Queen thinks ht to ajjprove, subject to the provisions 
 of this Act." It is a voluntary arrangement made, and 
 
232 
 
 Manitoha School Cakk, 1894. 
 
 tho particH lo tlic arrjmo;oniont arc on the oiio hand lli(« 
 Dominion rarliununt, and on t\\v. oilier liand llic 
 provinces necking admisHion. Tliis Aet onibodien llie 
 f.erinH on wliieli Manitol)a was admitted. 
 
 Ml'. IfaliJano. Tf we were dealing* with a question tliat 
 was jieenhar to Manitoba there would ho more f'oree in 
 your Jjor(lslii])'s observation than I venture to submit 
 there is, but if" vou take what we are dealing- with here 
 in Sub-seetion 8 of tho Manitoba Act and Sub-section 4 
 of 8ecti(m 9.'i of the IJritish North America Act, which 
 are tho relevant Sections for tlu^ purpose of «>ivin^ an 
 answer to the question the Lord Chancellor put, they are 
 identical in both cases. Thoy are meant to be of 
 general application, and they are identical clauses, and 
 if it were mtendod to carry out \\\v. general ])roposition 
 to which the Ijord ('hancellor has referred they would 
 have been framed diflerently. 
 
 Lord Macnaghtcn. I do not understand how you would 
 have franuMl them differently. When you once see the 
 obj(!ct thoy are framed very well and are not unreason- 
 able. They leave as much room for consideration and 
 negotiation before the Governor-G(^neral steps in and 
 requests an Act of the Dominion Parliament in invi'tum 
 of the Provincial Legislature as could be. 
 
 ]\fr. Hahlanc. What is it the Dominion Parliament 
 comes in for ? 
 
 Lord Macnnyliten. As the last resort. 
 
 Mr. Ilaldane. To give effect to a decision of the 
 Governor-Grcneral on A])peal. 
 
 Lord ]\facna<j1itcn. AVhich has been set at naught by 
 tho Provincial Legislature. 
 
 ]\fr. Ilaldane. lie it so, but they do not come in for the 
 purpose of giving tho Dominion Legislature seisin of 
 the educational question. 
 
 The Jjord Chancellor. They give them seisin of the 
 educational question in so far as it is necessary to pre- 
 vent what are called oppressions of the minority by 
 making remedial laws. 
 
 Mr. Ilaldane. To the extent of making them a Sheriffs' 
 Officer to enforce the Governor-Gonerars decision. 
 
 TJie Lord Chancellor. No, it is by legislation. 
 
 Mr. Ilaldane. I (juite agree, but it was only by legis- 
 
Manitoma School Cask, 1804. 
 
 L>;i3 
 
 l.'ilion that lliis could be ciil'onHMl il' it wan tlic appro- 
 j)riat() rciiu'dy. J^ook al il. •• An appeal Hliall lie lotlic 
 (iovonior-Gcncral in ('oimcil Ironi any Act or dcciHion." 
 That is the lirst tldn*;-. TIumi " In case any such Pro- 
 vincial law as I'roni lime to tinic seems to th«' (Jovernor- 
 (ieneral in Council re(|uisit(^ lor thi; due execution of the 
 ])rovisi(»ns ol' this seciion is not made." 
 
 Tlio Lonl C/ffntrrf/o)'. That I lake it to bo a j)rovincial 
 law which prevents the allection of a ri^'ht or priviU>^e 
 of the Protestant or Koman (Jalholic minority in relation 
 to education. That is the law he submits to them they 
 ought to make. Then if tlu^y do not make it, such a 
 law can bo n»ad<.! by the Dominion Parliament. 
 
 Mr. Ilalddne. Is not that anotlan- way of ])rovidin<i; an 
 a])poal on some law that has been passed by tho })ro- 
 vincial authority to pri'vent a right or privilege being 
 affected, that cannot be aileclod till there has boon pro- 
 vinciid hiw. 
 
 The Lord CJinnccJIor. No ; yon might leave tho pro- 
 vincial law existing and yot you nught add to it an 
 enactment that might j)revent (he rights of tho minority 
 being aiU-ctod. 
 
 Mr. IlaJdane. My answer to that is, that it is " only 
 in so far as tho circumstances of each case may ro(piire." 
 It is strictly limited — First there is what I have read 
 and then, " or in case any (h'cision ol' tho Govornor- 
 Gentu'al in Council on any aj)peal nndor this section is 
 not duly executed by tho proper Provincial authority in 
 that behalf, then, and in every such cas(>, and as far only 
 as tho circumstances of each case reijuiro, the Parliament 
 of Canada nuiy make remedial laws for tho duo execution 
 of the provisions of this section and of any decision of 
 the Governor-General in Council under this section." 
 It looks as if all that was intended was to give the 
 Dominion Parliament, not general boisin of the educa- 
 tional question, but jmwer to enforce tlu^ decision of tho 
 Governor-General. 
 
 The Lord ChanccJlor. It is a little beyond that. It is 
 the execution of this section. That depends on what the 
 8e(.*tion was intended to give. If you are right that the 
 section was intended to give no more than is given by 
 Sub-section 1, that would bo something loss. If, on the 
 
"■MM 
 
 234 
 
 Manitoha PciiooL Oahk, 1804. 
 
 oilier liiuid, it cxIriidH to privilc^'cs find ri^'lils hcyoiid 
 tlijit, lliiit would l»o HOMU'tliiii;;' iiioiT ; hut whiiti'Vcr it 
 w.'iH intended to ^ive, the I'rovinciid Le^^islalui-e is to he 
 invitcid in tlu; lirst niaco to puHH Huch K'^isliuion as will 
 protect all tlu; rights intendiMl to he proleete(l, aixl if 
 they will not do it, then it is left to iIk^ Doiniidon i'ar- 
 lianieiit to devise any remedial law they please that will 
 have that eiVoot. 
 
 Lord Shnml. Do f understand that you say there is an 
 appeal hoth to the (Courts of Law and from those Courts 
 to this Hoanl, and an apj)eal to th(^ (iovernor-( Jeneral in 
 Council at the same time with relerencu to any inl'ring'o- 
 ment ol' Sub-scetion 1 ? 
 
 }[r. ILtliUmc. Yes. 
 
 Lord S/i(tnd. Supposing* this IJoard were of oj>inion 
 and n-ave tlu^ opinion and llu; decision that tlu^ law did 
 not j)rojudi('ially alleet any ii<;'hts or privileg-es with 
 regard to the denominational schools, and the (iovernor- 
 Geuoral a dillerent opinion, what then ? 
 
 Mr. llaldanc. The (iovernor-i Ji-neral would bo bound 
 by thc^ opinion ol' this JJoard. The Governor is only a 
 servant oi' the Queen. 
 
 Lor<l Sliand. Why so ? 
 
 il/r. Ilnldano. IJecause the Governor isuhimately only 
 a servant of the C^u(ien. 
 
 TJif Lord Chanct'llor. I (h) not know; because it says 
 such law as •'seems to the (iovernor-lieiu'ral in (>ouncil 
 retpiisite." It has been generally held that does not 
 mean what /.v, but what ticoins. ]{' it seema to him 
 recpiisite, it comes within liis i'unctions, though, in pohit 
 of iact, it may not be. 
 
 Lord lla^soM. The power given in those other cases, 
 if it be given, appears to mo to be nnquestionably a 
 powc^r to be exercised in the discretion of the Governor. 
 I cannot conceive, if he is nuide a Court of Ai)peal to 
 determine whether it is ultra vtres or no, that it is to be a 
 matter depending on his discretion. It is a matter to be 
 determined judicially, whoever determines it. 
 
 Mr. Ualdane. Why is it to be said it is a matter of 
 discretion ? 
 
 Lord WaUon. The question is whether it complies 
 with or sins against a positive enactment of the 
 Legislature. 
 
Mamtoha Sci.'ooh Cask, iH'j-l. 
 
 236 
 
 }fr. I/ti/i/dNc. Tlicn' in nol a word ulioiii diHcivfion. 
 
 /,(>n/ W'dfson. I do iiol lliiiik if ;i (|iU'stioiH»l' iluil kind 
 iri I'aiHcd for dcciHion tln-ro can 1h! aiiytliiii^ of wliut I 
 call discrotioii. 
 
 Mr. Ildlihtnc. Tlicrc is no (|iit'Hlioii of discrc'tion l>y tlio 
 (lONcnior (ifMcr. " in liicsc cases. 
 
 Lord W'ntsott. It. "s all otiicr cases than an Appeal, and 
 the worcjs oi' Snlj-scciion ."» still more stroiiii'lv KUti'y'esl it. 
 
 Mr. Ildhlitni'. He is to he a iribunal of Ap|)eal in 
 relation to Provincial .luthoritics, and if that covorH 
 jndicial anthorities it is not unnatural, hecaiise he ap,-oints 
 th(^ I'rovincial Lieutenant-vJovcrnor and some of the 
 Jiid^'cs. 
 
 L()V<I W on. If ho is a (Jourt of Appeal at all in 
 matters laditi^- under Sub-suction 1 that is makin,!;- two 
 concurrent (JourtH of concurrent iurisdiction, and tlu! 
 f^eiicral ride with re^'ard to two (^oiu'ts of concurrent 
 jurisdiction is that wlien the one is fairly sciseil of the 
 case the jurisdiction of thr other is ousted. I do not 
 know of any concurrent jurisdiction which consists of 
 two going on at the sanio time, '''hat is quite novel to 
 me. There may be such things, but I have never heard 
 of them before. I have heard ol concurrent jurisdiction 
 very often. 
 
 Mr. Ifithhinc. The' A])peal here ia to tlus Sovereign. 
 The supreme authority directing \\\v (Jovernor-CJencral 
 is the Sovereign. \\'\\\\ regard to what the l^ord 
 Chancellor said about the expression " seems," it cannot 
 be that the (Jovernor-General could make a mistake and 
 invite the Dominion Parliament to pasw, and that they 
 did pass some legislation thai was grossly ultnt. rircf, 
 without its being subject to the jurisdiction of the Queen 
 and the jurisdiction of your Lordships. Surely it would 
 re(|uire much stronger words to do that. 
 
 'The Lord Chance/for. It means " as in the opinion of 
 the Governor-Ceneral in Council is re(pusite." That is 
 what it seems to nu) to be. 
 
 Mr. llaldanc. If the Governor-General is to be in a 
 position to enable the Dominion to go wrong, and go far 
 over the line as it would be with regard to educational 
 matters in legislating, surely there must be souk; way of 
 challenging that '.'' It is not to be assumed there is not 
 

 236 
 
 Maxitoka School Cask, 1894. 
 
 in the al)B(>iico of some words taking it away. T do sub- 
 mit it is a possible construction of these sections and a 
 consistent construction of them to say there was to be 
 some judicial authority which might be more trusted 
 and mor(^ apt for the protection of the minority, whether 
 Trotestant or Catholic for the time being, than the mere 
 ordinary tribunals of the land. It seems to me to be 
 quite natural it should be so, and it that is onci; estab- 
 lished, then you get it quite ])lain and distinct what the 
 C(mstruction of the Section must be. As regards Sub- 
 section 2 all questions of control over provincial authori- 
 ties, taking the expressi»m in the widest sense, and it 
 might well be all (juestions directing the repeal of Acts 
 which were not within the competence of the Provincial 
 Legislaturi> by reason of their being idti'a vires imder 
 Section 1, but which might be decidod by some judic 1 
 authority to be ultra vires, would come within the com- 
 petence of the Dominion Parliament on the initiation of 
 the <jrovernor-General, but the functions of the Dominion 
 Parliament would be confined, and strictly confined as 
 they are, I submit by Sub-sections 4 and 3 under both 
 Acts to giving effect to the decisions which the Governor- 
 General iiad come to — not to the exercise of his discre- 
 tion, but to his position as an authority, who is made 
 supreme. 
 
 Now, my Lord, there is very little which 1 wish to say 
 further about that section. My learned friend, Mr. 
 ]Make, referred to various nuitters, and amongst 
 others the questic^n of the veto of the Crown. Why 
 was it necessary, if these matters were legislative as 
 distinguished from judicial, to deal with them at all upon 
 this view if it had been intended to bring in the larger legis- 
 lative 'luthority and the power of the Dominion Parliament, 
 But for the mere purpose of annulling an Act, if it was 
 intended to gWo a discretionary power to the Governor- 
 General, the answer is he had got it ; because at any 
 time within two years atier assent given by the Lieu- 
 tenant-Governor to the Act he might under Section UO 
 disallow it. 
 
 'The Lord Chance/ lor. He disallows it as a whole, and 
 could not disallow a section. 
 
 Mr. llaldane. That is so. 
 
Manitoba School Cask, 1894. 
 
 237 
 
 The Lord Chancellor. It might bo a very Huboi'dinatc! 
 point, iiml yet it might bo very objectionable to defer 
 the beneficial legislation. 
 
 Lord Watson. And it might bo very di^sirable in the 
 public interest that the Act slumld be retained, but yet 
 certain provisions ought to come cut and clauses be 
 introductid for the protecti(m of the minority. lie could 
 not effect that legislatively but for the enactmeut of this 
 Siatute. 
 
 Mr. llaldane. ihit it vvouUl be a powerful instrument 
 in his hand for the purpose of putting pressure to attain 
 the object. 
 
 The Lord Chancellor. Still you would not dispute 
 this — if these provisions are stipulated for the protection 
 of those who have particular views with regard to 
 education, they might well have stipulated for such an 
 Appeal to the Governor, even though he had the pow<!r 
 of disallowing the Act. 
 
 Mr. llaldane. It might have boon so. 
 
 Jjord Watson. He would not otherwise have the power 
 to decide what ought to be done and to have it legisla- 
 tively enacted, though the Pi\)vincial Legislature refused 
 to be a party to rhe Act., 
 
 J/?\ llaldane. All I say is if it is so it is a circum- 
 stance to be taken into account in construing this 
 Section that the matter was not one which, having regard 
 to the limitations of Sub-section 1, was wholly within 
 the power of the Province. 
 
 Now, my Lords, if the other construction is taken 
 there is rath(>r a curious state of things, because in 1871, 
 immediat(dy after this Act got Imperial validity, it was 
 un(piestionably |)ossibli' for the Provincial Legislature 
 to have passed the Act of ISUO, and no ([uestion could 
 have bsen raist d about it. Then comes the conse({uence, 
 if the construct iim contended for by my learned friends 
 is right, that what the Legislature had power to do, and 
 what in ordiuary circumstances they would have the 
 power to undo, or alter, or vary at their pleasure, as the 
 necessities of the changing condition of the persons 
 entrusted to their jurisdiction denumded, they are 
 deprived of having power to do by their own Act. I do 
 not say it is not a possible conclusion to come to, but it 
 is not a very usual one. 
 
238 
 
 Manitoba School Case, 1894. 
 
 Lord Macnaghteii, T suppose you must bear in mind 
 the situation of the parties and the population at the 
 time. I suppose an Act like that of 181)0 could not 
 have been passed, and I suppose it was necessary to 
 pass some Acts witli reicrcncc to education at tliat time. 
 
 Mr. llaldane. Ther(^ might have been Acts of a 
 ditlerent kind in Now JJrunswiek and Nova Scotia. The 
 Acts passed have been purely undenomin;itional. 
 
 The Lord Chancellor. In the very next year fd'ter the 
 achnission of Manitoba to the Union, there was a law 
 passed. They began at the outset by passing a law 
 relating to denominational education, and one knows 
 that it was an arrangement between Protestants and 
 Roman Catholics. Each of these classes must have 
 been consulted before you could arrive at any agreement 
 in favour of the Union, if they were commg into the 
 Union. Is it an unfair inference that at that time both 
 parties understood one another, and that denou.inational 
 education with protection to the other party would be 
 ])rovided in Manitoba ? We find they tlid so legislate 
 the next year ; and if that be the case, may not that 
 explain their not having made any demand which wouKl 
 have prevented such an Act being passed, because it 
 was a nuitter they had reason to know was not within 
 their contemplation at all. Is it not shown that that is 
 not «'i mere speculation, but probably well grounded, by 
 the fact that they did in the next year pass this denomi- 
 national systeu). 
 
 Lord Watson. I do not think it is at all surprising in 
 the circumstances that such should be the outcome of 
 the Union. 
 
 Lord Sha7id. The point you are making now, as I 
 understand, is that it is a remarkable thing they should 
 not be able to repeal a Statute that they themselves had 
 passed. 
 
 The Lord ChanceUor. That if they had passed this 
 Statute at once belore they ])assed any denominational 
 education at all it would not have aifected any right. 
 
 J^ord Watson. May not it be suggested — 1 know 
 nothing about it — if it is open to speculate about it that 
 you could not have passed any statute going this length. 
 If the non-Sectarian portion of the community were of 
 
Manitoha School Case, 1894. 
 
 239 
 
 that streniilh in 1871, why did they pass an Act the 
 very reverse of the Act they wished to have ? Why 
 did they pass a denominational statute when they were 
 all for non-8ectarianisin — assuming they were so at that 
 time? If tliey were not all for non-Sectarianism I do 
 not sec how they could have passed it. 
 
 Mr. IldhliDW. This Act gave non-dcuominational tnlu- 
 cation to all. 
 
 Lord Wat>inn. I think a change has come over the 
 spirit. 
 
 The Lord Chancellor. What you are entitled to look 
 at is the condition of the population, this being a Par- 
 liamentary bargain, and the condition of the piirties at 
 the time, when you are dealing with an Act which 
 speaks of majorities :ind minorities. 1 do not know 
 which had the superiority, but at all events they were 
 ])retty evenly balanced. 
 
 Mr. Hal dune. All I am saying is that if it had been 
 intended to impose the restriction on the power of the 
 Manitoba Legislature which has now beeri contended for 
 by the Ap[)ellants, that restriction ought to have been 
 put in some different language to what it is here. It 
 might well be said * 't any right and privilege once 
 constituted by legislation was not to be taken away or 
 rei)ealed without the consent of the Governor-General. 
 It is such an unusuj.l thing to put in, that I do submit 
 that if it was intended to insert it there, it would have 
 been put in some language that was plain, and not in 
 language which, to say the least of it, is ambiguous. 
 
 lAdJour?ied for a shoH time']. 
 
 Mr. JIaldane. My Lords, I have said all that I feel 
 justihed in saying on the first point. I will simply sum 
 up my propositions — that Sub-section 1 exiiaustively 
 deiines the powers and the limitations of the Provincial 
 Legislature — that Sub-section 2 is a sub-sectiun in geueral 
 languagi^ which ought to be construed, as all sub-sections 
 in general language iu Acts of a similar kind would be 
 construed, consistently with Sub-section 1 — that the 
 position of the Governor-General is that of a person 
 having a power of determining on appeal questions of 
 
I 
 
 240 
 
 Manitoba School Cask, J 894. 
 
 law, and not a person vestt d with an admin istrative 
 discretion — that to hold otherwise would be to put him 
 at the mercy of any judgment of any tribunal which 
 might or might not bo a])pcak'(l from to this Board 
 before the Supreme Court of Canada was constituted 
 — that hennist bo put in a position to deliberate and decide 
 upon ([Uestions of v/tra rirc.s — and that beiug so, ho is 
 not a person vested with a tliscretion, he is a person who 
 has to exercise a judicial authority which is the cf)nditiou 
 precedent of the Dominion Parlianient coming in and 
 giving ett'ect to his decision whatever it may be, That 
 is my submission to your Lordsliip as to the proper con- 
 struction of Section 22 of tiie IVIanitoba Act. 
 
 Biit now, assuming against myself for the sake of 
 argument, that on the proper construction of this section, 
 the rights and privileges so far as they are legislative, 
 are not rights and privileges for the time being, as I 
 contend they are, but are rights and privileges which 
 have once been established by the Manitoba Legislature, 
 and which cannot on the hypothesis in question b(^ 
 abohshed by tlie Legislature ; I still contend before your 
 Lordships that the conditicms which alone enable an 
 appeal to the Governor-General have not arisen, and 
 that that is a (juestion which your l^ordships in the 
 exercise of the dnty which you have taken upon your- 
 selves of advising the Governor-General are bound to 
 answer. My Lords, as formulated by the Governor- 
 General, the (question which he addresses to your 
 l^ordships is, whether the Act of 1890 constitutes 
 such an infringc^ment and affection of the rights 
 and privileges cojd'erred by the jn'cci 'ing Acts as to 
 ii'ive iiTounil for his interl'ercnce under Section 22. Now, 
 my Lords, upon that it is important to observe — I shall 
 not have occasion to trouble your Lordshij)s with a 
 detailed argument upon it — but it is important to observe 
 what tlu^ provisi<ms of the previous Statutes really are in 
 order to sec^ whether they constitute a right or ])rivilege 
 of the minority, and as I submit to your Lordships, of 
 the minority as such. It is not enough, for instance, 
 that there is a right to rate lor education, because that 
 would be a right which was given to the comnmnity as 
 a whole. The question is whether there is a right or 
 
Manitoba School Case, 1894 
 
 241 
 
 XT C'Oll- 
 
 privilego ^iven to the minority as sucli, and what I 
 suggest to your Lordships as the true interpretation of 
 the rights and privileges conferred by these previous 
 Statutes is that they are rights and privileges of 
 exemption from liability which is created by these 
 Statutes upon the whole community ; that, in other words, 
 there is a system whicli is passed for the whole community, 
 and that dependent upon that system there is a right or 
 I)rivilege of (exemption which has meaning, validity and 
 effect so long, and so long only, as the system ccmtinues 
 in effect. The system may be taken away, if the 
 argument is well founded, because the system in itself 
 was not an infringement of a right or privilege, but if the 
 system disappears then the ground for the exemption 
 disappears, and accordingly if the Legislature abolishes 
 the system no question arises as to the right or privilege 
 whicli had only this contingent and conditional existence. 
 
 Lord Watson. The right given to the whole community 
 by a Statute of this year you say does not confer any 
 right or privilege when it is taken away by an Act next 
 year — it does not give any right or privilege to those 
 who under next year's Statute become a dissentient 
 minority. Is that the proposition ? 
 
 Mr. Ilaldane. Yes, but I should like to state it a little 
 more fully. 
 
 The Lord (Jhancel/or. Your point is that those Statutes 
 between 1871 and 1890 do not give any right or privilege 
 at all to the minority in relation to education ? 
 
 Mr. Haldane. That is it. They do give what I have 
 called contingent and conditional rights and privileges of 
 exemption from the system which had been established. 
 
 Lord Watson. The privilege was to be given in the 
 shape of exemption from the general rule as to education. 
 
 Mr. Ilaldane. Yes. 
 
 The Lord Chancellor. But had not they power to tax in 
 the first place ; and in the next place to tax all with the 
 exception of those who were contributing to some other 
 schools not of their faith for the support of the schools ? 
 
 Mr. JIaf<lane. They had power to tax, and they did 
 tax, but the contributions of those of a j)articular faith 
 were allowed to go under that system to the support of 
 their particular schools. 
 
242 
 
 Manitoba School Ca8E, 1894 
 
 19 ' 
 
 The Lord CJianrellor. Is not the power to tax for the 
 support of schools where thut kind of ('(hication is <i,'iven 
 which is in accordance with the view of the niino -ty, a 
 ri<^'ht or privik'<j,'e of the minority ? 
 
 Mr. Tlaldane. One must hiok at the Statute to see 
 wliat it is. It is really a power or rif^ht to claim 
 exemption from a tax whicji is levi(>d on the whole com- 
 munity for a system of education for the benefit, not of 
 a minority, but of the whole. 
 
 The Lord ChanccUor. There was a division in the 
 first instance, into separate districts — Catholic districts 
 and Protestant districts — althouo'h there was some over- 
 lapping, and the people who managed the education in 
 the Catholic districts would be Catholics. 
 
 Mr. Haldane. Not exactly so. In the first place there 
 was a General Board of Education which managed the 
 whole, but certain subjects Avere taken out of the juris- 
 diction of that Board and iransforrcd to particuhir sec- 
 tions of that ]5oard, and I say that was an exemption ; 
 but if you take away the Board which had control of the 
 whole, I say the exemption is taken away. That is the 
 way I put it. 
 
 Lord Jfacnaf/hten. Before 1890 had not the Roman 
 Catholics schools of their own which were appropriated 
 for the purpose of the Public Schools Act ? 
 
 Mr. Haldane. There were unorganised schools. They 
 were not appropriated. 
 
 Lord Macnaghten. Appropriation is proposeil by the 
 Act of 1890. 
 
 Mr. Haldane. Only by paying for them. 
 . Mr. Blale. No. 
 
 Mr. Haldane. I know what my friend has in his 
 mind, and I have a distinct recoUt^ction of the (piestion 
 which the Lord Chancellor put. The l^ord Chancellor 
 said that it might be that at all events as to those 
 schools which have been built out of rates which are 
 contributed by the Ronum Catholics, those have been 
 taken. That is trui>, but my answer is that those never 
 belonged to the Roman Catholics. It is quite ti'ue they 
 were built out of rates that were levied on the com- 
 munity, except that what the Roman Catholics 
 contributed for the building of those schools to those 
 
Manitoba School Cask, 1894. 
 
 243 
 
 Tlie first thing I 
 
 ir in luiiid is the 
 
 which your Jjord- 
 
 It is onlv one 
 
 rates was a])plie(l to the buiUling of Catholic Schools, 
 hut thoy were not schools belonging to the Catholics. 
 It was only that the rates which were a liability on the 
 whole coniniunity, were in this case used for the 
 building of Roman Catholic Schools. 
 
 Afr.B/al'c. No. 
 
 JAr. ILihlane. I will go into that. My friend, I gather, 
 dissents from that. 
 
 Mr. lilake. I dissent entirely that the rates are levied 
 on the whole community. 
 
 J/r. IfithJnne. I will go into that, 
 wish to ask your Lordslii[)s to Ix 
 detinition of the kind of interferenet 
 ships laid down on the hist occasion, 
 sentence of the Judgment at pagt; 157 : 
 
 But then it is said tliat it is impossible for Roman Catholics, or for 
 members of the Church of England (if their views are correctly 
 represented by the Bishop of Rupert's Land, who has given evidence 
 in Logan's case), to send their children to public schools where the 
 education is not superintended and directed by the authorities of 
 their church, and that, therefore, Roman Catholics and members of 
 the Church of England who are taxed for public schools, and at the 
 same time feel themselves compelled to support their own schools, 
 are in a less favourable position than those who can take advantage 
 of the free education provided by the Act of 1890. That may be so. 
 But what right or privilege is violated or prejudicially affected by the 
 law ? It is not the law that is in fault ; it is owing to religious con- 
 victions, which everybody must respect, and to the teaching of their 
 church, that Roman Catholics and members of the Church of 
 England find themselves unable to partake of advantages which the 
 law offers to all alike. Their Lordships are sensible of the weight 
 which must attach to the unanimous decision of the Supreme Court. 
 They have anxiously considered the able and elaborate judgments by 
 which that decision has been supported. But they are unable to 
 agree with the opinion which the learned judges of the Supreme 
 Court have expressed as to the rights and privileges of Roman 
 Catholics in Manitoba at the time of Union. They doubt whether 
 it is permissible to refer to the course of legislation between 187 1 
 and i8qo, as a means of throwing light on the previous practice or 
 on the construction of the saving clause in the Manitoba Act. They 
 cannot assent to the view, which seems to be indicated by one of the 
 members of the Supreme Court, that public schools under the Act of 
 1890 are in reality Protestant schools. The Legislature has declared 
 in so many words that the public schools shall be entirely unsectarian, 
 and that principle is carried out throughout the Act. With the 
 policy of the Act of 1890 their Lordships are not concerned But 
 they cannot help observing that, if the views of the Respondents 
 were to prevail, it would be extremely difficult for the Provincial 
 
 V r\ 
 
244 
 
 Manitoba School Cask, 1894. 
 
 m- 
 
 Legislature, which has been entrusted with the exchisive power of 
 making laws relating to education, to provide for the educational 
 Vvants of the more sparsely inhabited districts of a country almost as 
 large as Great Britain, and that the powers of the legislature, which 
 on the face of the Act appear so large, would be limited to the 
 useful but somewhat humble office of making regulations for the 
 sanitary conditions of school-houses, imposing rates for the support 
 of denominational schools, enforcing the compulsory attendance of 
 scholars, and matters of that sort. 
 
 Now. my Lords, tluit I start from. 'JMic Act oC 1890, 
 but for whtit may or may not be the oft'oct of tlioso 
 immediate interpositions by the; Leo;islature between 
 1871 and 1890, is an Act wliicli is unobjecticmable. It 
 infring'os no riglit or privileg-o whieb existed at tbo 
 Union. It does not establish a denominational school 
 system. 
 
 Lo7'd Shand. That shuts you up to the question of 
 what is the eifcct of those intermediate Acts. 
 
 Mr. Ualdanc. It does. 
 
 Lord Shand. There is one Act whieli embraces the 
 whole of the previous Acts too-otber — the Act of 1881. 
 
 3fr. Ilaldane. Yes ; reallv notliini>' turns on anvthino- 
 except the Act of 1881, which, as your Lordship knows, 
 repeals the Act of 1871. Now just let us turn for a 
 moment to that. First of all I should like to look at the 
 Act of 1871 for a moment because it contains terms and 
 expressions which recur again in the Act of 1881. 
 
 Lord Shand. Shall we not get them in the Act of 1881 ? 
 
 Mr. Ilaldane. I think it is desirable to glance at the 
 Act of 1871. 
 
 The Lord Chancellor. Where is it to be found ? 
 
 Mr. Ilaldane. I have it in a separately printinl book at 
 page 21. The Act of 1871 which is now repealed, but 
 which is the foundation of the code of legislation con- 
 tained in the Acts which began in 1881, "The ^lanitoba 
 School Act," and the amenditig Acts, first of all begins by 
 establishing a Board of Education which is to consist of 
 not less than 10 or more than 14 persons, half are to be 
 Protestant and the other half are to be Catholics. Tlu'u 
 one of the Protestant members is to be Superintendent, 
 and one of the Catholic members is to be Superintendent 
 of the schools of their respective denominations. Then 
 the next im.portant provision is the provision of a Chair- 
 
Manitora ScirooL Case, 1894. 
 
 246 
 
 inrin. 'I'lic duly of the I'loiinl in first of all (and this Is 
 the iioard as a vvliolo) lo make regulations as (hoy think 
 fit for the gonoral organization of the common schools, 
 then to select hooks and so on, hut not dealing with 
 n^ligion or morals. Then there is a suh-division oC 
 school districts, and then we come to SectioTi 10, which 
 I say doesconlei" rights and [U'ivileges upon the minority 
 in what is really the slnqx; of exemptions from the 
 general provisions of the Act. Kach section of the 
 Board as a whole (the l>oard as a whole being for the 
 general regulation) is to select teachers; this is a 
 denominational system, and the selecting of the teachers 
 is very important. It is to prescribe the books ; this is 
 a denominational system where religious books may be 
 used, and it is very imj)ortant that the Catholics should 
 have tlu^ selection of their own books. 
 
 Tlie Lord CJuuiccUor. Why do you say it is an (exemp- 
 tion. It is an express provision. It is an enabling or 
 an empowering provision. It is not an exemption from 
 anything. Each half gets exactly the same thing. It 
 is not a thing that the whole gets from which any p(U'- 
 tion is exemi)ted, but the same thing is given to two 
 halves. Of whicli is it an exemption ? 
 
 Afr. Ilaldane. The system of dencmiinational educa- 
 tion is given to the IJoard as a whole, the sidection of 
 the books and the selection of the teachers is given to 
 the various sections. 
 
 The Lord Chancellor. Ihit that is not an exemption 
 from anything. 
 
 Mr. Ilaldane. No, but what the right or privilege of 
 the minority is 
 
 Lord Watson. \our contention is that the right or 
 privilege must be conferred in the form of an exemption. 
 
 2Ir. Ilaldane. Yes, I say it comes to that. 
 
 Lord ll^'atson. But that anything given in the form of 
 a right or privilege common at the time it is given to 
 the wliolc of the community of Manitoba, is not a right 
 or privilege such as is coutemplatetl in the 3rd Sub- 
 section. 
 
 3[r. Ilaldane. That is my proposition. 
 
 Lord IVatson. Uu([Uestionably it does not seem to 
 admit of doubt that before 1871 there was no de- 
 
mttttmm 
 
 iif: 
 
 246 
 
 Manitoba School Cask, 1894. 
 
 'jjm 
 
 nominal ionul t('!ichiii«j,", and tluu'e woro no priviloges or 
 rights vvhutovor until the Union. Tlicro won; none 
 l)(!fore the Union, or at tlie Union, but immcdiatoly after 
 the Union, IVoni 1871 and downwards to the Acl; of 
 1890, tlicn^ wan repeated legislation, and during the 
 whole of that time the legislation made State education 
 denominational. 
 
 3fr. Hal<lane. Yes, that is so. 
 
 Lord ]V(ttsnn. I think it hardly admits of doul)t that 
 the privilege which was conferred was not an exceptional 
 privilege. It was given all round. 
 
 Mr. llahlanc. li was given all round. That is my 
 proposition, that the system of denominational educa- 
 tion 
 
 Lord WaUon. Each denomination had a State-aided 
 school, in which a i)articular religion was taught. 
 
 Mr. llaldane. Yes. I do not know that it matters, 
 bur I prefer to nut it in a ditterent way. 
 
 Lord Watson. I do not object to your putting it in 
 another way. 
 
 T'he Lord Chancellor. Can you tell me, as a matter of 
 fact, when the Manitoba Jjcgislature came into existence ? 
 The Manitoba Act is the 12th May, 1870, but I suppose 
 they would have to have a Lieutenant-Grovernor ap- 
 pointed, and to have an Assembly elected. 
 
 Mr. llaldane. I cannot tell your Lordship from 
 information, but your Lordship notices the Act of 1871, 
 and therefore I think I am right in saying 1871. 
 
 The Lord Chancellor They existed I know, because 
 thoy existed in time to pass the Act by June, 1871. What 
 I wanted to know was how early in their existence that 
 Act came upon tlie carpet. 
 . Lord Shand. Which Act is that, the Act of 1870 ? 
 
 The Lord Chancellor. The Act of 1871. 
 
 Mr. llaldane. That I cannot say, my Lord. I do not 
 know whether my friend can inform your Lordships. 
 
 Mr. Blake. The 15th of July, 1870, as my friend 
 informs me, is the period at which the Union came into 
 force, but neither of us are aware when tlie Legislature 
 was first convened. 
 
 21ie Lord Chancellor. Of course that must have taken 
 some time. 
 
Manitoha ScirooL Cahk, 1894. 
 
 247 
 
 77/e fjonl Chayicollor. IJocauBo, ol' course}, you had (o 
 (jloct tlui Ijcgislalun' ? 
 
 Mr. Illakr. ( "ortaiuly. T am not aware wliotlicr tlicro 
 waH one el('clt'(l in llic fall of tliat yoar or not. 
 
 Mr. Ifdldanc. There was \\\v Imperial Act in .June, 
 1871. 
 
 A^'. llhtL'o. My learned friend teilH mo that tliis vvaK 
 tho iirsl Session ; the Session in which this Act was 
 passed was the iirsl Session of the Legislature. Tiial is 
 what my Iritnid tells me. 
 
 Lord Sliitnd. This Act of 33 Victoria, cap. H, which is 
 in th(* copv 1 have before me, was assented to on the 
 12th May, 1870. 
 
 Tlic Lord (■h(i)ice//or. Yes, hut F want to know when 
 the Legislature came into being? 
 
 JL'. hlah'c. All that wo know is that this Act in ([ue^s- 
 tion was passed in tho first Session of that Legislature. 
 My learned friend so tells me, 
 
 }[r. ILtldtinc. Tlu! existence of the province as a ])ro- 
 vince was not finally S(it at rest until the 2l)th of .lune, 
 1871, which was the date when tlu; Imperial Act forming 
 Manitoba received the Royal assent. 
 
 Ihe Lord Chancellor. But there was no doubt a 
 Legislature elected before. 
 
 J/r. Ilnldane. No doubt there was a Legislature 
 elected before. It must have been so. 
 
 Lord Shand. Was not the establishment of a system 
 of denominational education a privilege of the minority? 
 
 Mr. Ilaldanc. No, my Lord. It was given to the 
 communitv as a whole. 
 
 Lord Sfimid. No doubt, but still they got that not- 
 withstanding, whatever might be the vote of the majority. 
 
 Mr. Ilnldane. What the Legislature did was this, they 
 said " It is in the interests of the whole that the com- 
 munity as a whole should have denominational educa- 
 tion." 
 
 Lord Shand. If you assume a very small minority of 
 one class it is a great privilege to them to have that. 
 
 Ml'. Ilaldane. Even though it has certain rights and 
 privileges, which I say 
 
 Lord /Shand. But for that privilege they would have 
 
 ■ !. 
 
248 
 
 Manitoha School Cahk, 1894. 
 
 boon out-voted. The kcIiooIh ini;i;lil liavc Ix'cu nxiuU' all 
 ProtoHtaiit, for (jxunipio, if the iniiKirity was (Jiilliolic. 
 
 ^fr. /Jnhlanc. TluU Ih ])()HHil)le. 
 
 Lord Mavn<t<jhten. Supposing it waw a privilege^ rou- 
 fornnl on ail, but oiU! of the largo Hocts did no! consider 
 it a ])rivilog(', \v, not it a jiriviiego to the niiiiority ? 
 
 j/r. ILililduc. It is 80 difticult, to anKwer thoKc tliiiigK 
 in abwtract terms. 
 
 ^jord Shand. Hut it is the very (piostion whieli is 
 ra ^d — wliothur you an* not in fact giving a privilege 
 to a minority. 
 
 Mr. Ila/danc. I will put a case, niy Lord. Su[)po8ing 
 there was an Act which said 
 
 Lord Watson. Surely a privilegi^ may be a privilege 
 without being appreciated as such. 
 
 Ijord M(iC7iagtiten, It is not a privilege to a man who 
 does not consider it a privilege, but it is a privilege to a 
 man who does consider it a privilege. 
 
 J/7'. Ilnldane. I think, my Lord, something mor(> than 
 that is involved. Supj)()S(^ that the State says " We are 
 going to rate for education." Well, one section of the 
 electorate, or one section of the population may consider 
 that a privilege. 
 
 Lord Alacnaghten You say that there is no privilege; 
 in one man bemg obliged to put his hand into his pocket 
 to support his particular school. 
 
 Mr, Ilahlane. The other man never putting his hand 
 into his pocket at all. My submission is that that was 
 not a right or privilege conferred upon the minority 
 which was contemplated by the Act. I agree that what 
 was meant was to protect the minority against the legis- 
 lative majority 
 
 Lord Watson. They came to require the protection, it 
 appears to me, being in the minority. 
 
 Mr. Haldane. Yes, being in the minorit}-. 
 
 Lord Watson. I do not see how that bears on the 
 question. Surely it is a privilege to have denominational 
 schools established if you are denominational. I can no 
 more understand that than this : That if a nobleman or 
 merchant prince admits the whole of the public to his 
 domain for one day in the week, that is not a privilege, 
 but if he keeps out the public and lets in half-a-dozen of 
 them, that is a privilege. 
 
Manitoba Scikmh, Oakk, 1894. 
 
 240 
 
 liinp'H 
 
 }fr. Ifah/tnir. Vcs, Homclliiii^i' tlial is ^-ivcn l(» llicni 
 (ixcliisivi'ly uH a cIuhh Ik h privik'^v, aiul lliu clawH wu waul 
 ill liiin caHc in tii(( luiiiority. 
 
 fjord W^dtsftH. l*rivii('o-(< in vorv often used as a iiuTO 
 exceptional prixile^ie, but that '\h not tlie meaning'. 
 
 .]/)'. Ildhhnic. it is not every l<iii(l of priviie^'o. It is 
 llie pi'ivile^'e oi'the minority. 
 
 Lord Wdtsoii. I (piite eoneede tJiat. 
 
 Mr. Ihthhmn. Ail tlial I am sulunittinp,' to your 
 Jjordsliips is tliat, to tal<e Lord Alaenagliten's easc^il" we 
 were dealing- with the (|Uestion ol' whetiier it was a rig'ht 
 or privileg'e ol' the minority to have rates levied u[)on the 
 conimuiiity as a wlioie lor the pur[)()soH of education, 
 however great, a priviU'go the jjcrsons who were ('at holies 
 and in the minorilv and were i''oin<'' to he overruled bv 
 tlio majority might consich-r that, that would not l)e a 
 right or privilege ol' the minority within the meaning ol' 
 Sub-section 2 ol'tliis Act. That is my proposition. 
 
 The Lord (litinccllor. Certainly, if wo arc to allow the 
 18()7 Act to throw any light u[)on it. If you look at the 
 iirst Sub-section of Section 95, it can hardly l>c doubted 
 that there the rights and ju'ivileges intended to bt> ])ro- 
 tectcd were the rights and privileges of having either 
 separate schools or denominational schools, as dis- 
 tinguished from a general system which was not in 
 accordance with their views. 
 
 J/n llaldanc. Your Lordship refers to tliat system ot 
 separate* schools ? 
 
 The Lord ClumccUor. Yes. 
 
 Mr, Ihldanc. That is in Sub-section 3, 
 
 The Lord Chance/ /or. No, 1 mean if you lock at Sub- 
 section L You are looking at Sub-sections 1, 2 antl 3 
 together. If you look at Sub-section 1 you can hardly 
 dispute that as regards Quebec and Ontario, one of the 
 objects, at all events of Sub-section 1, w.as to preserve 
 their rights to the then existing system of denomi- 
 national education. 
 
 J/r. Ha/dune. Certainly, because those were rights 
 they had by law. 
 
 The Lord (Jh(mcc//or. Yes, they wore rights they had 
 by law, but what was the nature of the right ? It was 
 only the right to get assistance from the State funds for 
 
250 
 
 Manitoba School Case, 1894. 
 
 their neparate schools as flistinguishod from the scliools 
 in consonance with the views of the majority : Pro- 
 testants in the one case and CathoHcs in tlio other. 
 
 j\Ir. UaJdanc. There was a system then which tlie 
 CathoHcs as a whole in Quebec claimed the Ixmefit of. 
 
 The Lord Chance/ hr. The Catholics who were in the 
 majority. 
 
 J/r. llahlane. Who were in the majority. 
 
 The Lord Chancellor. But the Protestant minority had 
 wliat wen? called Dissentient schools ? 
 
 Mr. Ilaldane. Yes. 
 
 The Lord Chancellor. What was intended was to ]n'e- 
 serve the rights of the minority amongst other things, 
 certainly. 
 
 Mr. Haldane. Yes. 
 
 The Jjord ( 'hancellor. Wluit was the right of that 
 minority except this ? It was not merely that they 
 might send their children to dissentient schools, but 
 that the schools specially in accord with the views of 
 the minority should receive State assl&vance and be part 
 of the general system of education. 
 
 ^fr, Haldane. That was a right which a class of per- 
 sons had by law at that time. 
 
 Ihe Lord Chancellor. Yes, but I am pressing upon 
 you your own argument. According to you Sub-section 
 2, which speaks of alfecting the rights of the minority, 
 refers to rights given by Sub-section 1 . Therefore I am 
 pressing upon you that according to your construction of 
 Sub-section 2 the right of a minority to l»avc denomina- 
 tional schools supported at the State expense, and being 
 part of the school system of the province, was a right 
 affecting education in relation to the minorit}^ within 
 Sub-section 2. 
 
 il/r. Haldane. I did not limit it to the rights conferred 
 by Sub-section 1, because tiien I should have struck on 
 the rock which your Lordship points out. 
 
 Lord Wattion. 1 cannot help thinking that it was in- 
 tended by that clause to give to a certain class of the 
 community when they were in the position of being in 
 a minority, the right of defending the privilege which 
 they had conl'erred upon themselves when they were in 
 the majority. 
 
 '■J; -'Ti 
 
Kanitoili School Case, 1894. 
 
 251 
 
 AFr. Ilaldane. Which they had conferred on them- 
 selves ? 
 
 Lord Watson. Yes. 
 
 ^^r. Ilaldane. Yi^s, tliat is so, my Lord. 
 
 Lord ]VatKon. It was not a privilt^ge to all, bocaiiso I 
 suppose some mig-lit be at one time and for a consider- 
 able period the minority, and then mignt become the 
 majority, 
 
 J/j". IlaJdanc. 1 do not want to take an illustration as 
 being exhaustive of all the individual cases which might 
 come within the category, but take the case 1 put. There 
 is a systtnn of denominational education under which the 
 Catholics may have their own teachers and rule them- 
 selves — that is to say, apply their own rates to the pro- 
 vision of their own teachers and their own books. That 
 is a very valuable right or privilege which they have 
 got, and which they conferred upon themselves while 
 there was a system of denominational education. 
 
 Lord Watson. What oc(;urs to me is this, that where 
 a privilege is conferred upon themselves by the 
 legislative majority, that privilege must devolve upon 
 the original majority, as the minority, befor(3 there can 
 be legislatioii contrary to their interests. Al the time 
 that Act was passed, and on the eve of passing it, the 
 persons who enjoyed the denominational schools and 
 regarded them as a privilege were in the minority. 
 
 Mr. Hahlanc. Y(^s. 
 
 Lord Watson. That was the condition at the time the 
 Act was passeil. No doubt it may have been due to 
 their own actions whilst they constituted a majoritv in 
 the balance of the political power of the State. That 
 may be c[uite so. At the time Avhen the original 
 minority having become the majority proceeded to 
 legislate, the condition was that the original majority 
 wert^ the minority. 
 
 Mr. Ilaldane. I'hai only carries you so far. 
 
 Lord Watson. It does. 
 
 Mr. Ilaldane. It does not carry you the whole length. 
 
 Lord Shand. The legislation, you say, provided 
 equally lor all — is not that the point ? 
 
 Mr. Ilaldane. Yet:, my Lord. 
 
 Lord Shand. Very well, assume that , but in providing 
 

 252 
 
 Manitoba School Case, 1894 
 
 c(|ually for all (lion> tlieroby resiilled from (liat mode of 
 Ic^iBlation privilcgoB or riglits in tlio minority, and you 
 d(,'privc^ it, of that — surely tliat is a bonelit ? 
 
 Afr. Ilahlanc. A spcicial privilog'c. 
 
 Lord Shmuh It residted in a benefit. 
 
 Lord Watson. It jmt them all on the same footin»i,\ 
 The non-sectarian (xlucation ])arty did not regard il as 
 a right or privilege. They regarded it as an infliction to 
 be got rid of by Statute. 
 
 Mr. Ilaldane. They did, and they had their remedy 
 because they were not bound to send their children to 
 schools in the district in which they lived ; they might 
 send them to any other schools. 
 
 Lord Watnon. We cannot go into the considerations 
 which entered into their minds. 
 
 Mr. Haldane. I am suggesting that th(n'e is a contrast 
 between the words of Sub-section 2 and the words of 
 the Section to which the Lord Chancellor has referred, 
 under which there is a preserving of the privileges con- 
 ferred by law or custom on any class. In Sub-section 2 
 it is an Act or decision. 
 
 Zon/ WatHon. At the time when this new legislation 
 of 1890 was passed the persons who valued denomi- 
 national education were the minority. They regarded it 
 as a privilege, and they held to it as a privilege, whilst 
 others were seeking to npset it. Nobody else got a 
 privilege. It was a privilege which they had at that 
 date. It resulted to them from their own Act in the 
 former time whilst they were the majority. Does that 
 make any difference ? That is the short point. Yon 
 must look to the origin of it. Yon never could have a 
 privilege created in tliat view of it by intermediate 
 legislation, because that legislation nuist be the act 
 presumably of the majority. 
 
 J/r. Jhddane. You must see what Sub-section 2 means. 
 Obviously it pohits to something different from what is 
 in Snb-section 1. 
 
 • Lord WaLson. Yon muar Ic'ok at the two, because that 
 would rather turn into ridiiude Sub-section 3 of Sec- 
 tion 93. 
 
 Mr. Ilaldane. Sub-section 3 of Section 93 seems to 
 point to somethiug dilferent. It seems to limit the right 
 of Appeal to the case where there is actually existing a 
 
Manitoba School Case, 1894. 
 
 253 
 
 system of sopariUe or dissontiont schools which no doubt 
 ini<^lit bo oppressed by the act of the inajority, und 
 might have their rights and priviU'ges interfered with, 
 and in those cases, and in tliose cases only, they are to 
 Jiave a right oi' Appeal. lUit going back to Sub-section 
 2 as it is in Section 22, it is clear that something specific! 
 is meant by " right or ])rivilege oC tlie minority," and [ 
 read and 1 sidimit that the meaning oi' it is, that there 
 is not to be anything done? which can ailect the position 
 of a minority — a minority in h\gishition who are at the 
 mercy of the majority. Nothing is to be done which 
 can affect any right or privilege which they h;id in rela- 
 tion to education. Now what right or privilege did 
 these people have ? Standing by itself, it is clear that 
 the Act of ISDO is no infringement oC their rights and 
 privileg(^s. Standing by itself, I say — that your Lord- 
 ships have decided in Barrett's case. That is clear 
 ground to start with. 
 
 Lord Shand. I do not untU'r stand that. Standing by 
 itself compared with the state of matters at the time of 
 the Union, there is no privilege ; but standing by itself 
 in comparison with the state of aifairs afterwards, there 
 is a privilege. 
 
 ]\[r. If aidant'. I have not made myself clear. I meant 
 standing apart from any other legislation. 
 
 Lord Shand. Nobody had any privilege; before of 
 course. 
 
 ^fr. Ilaldane. Unless there had been some statutory 
 ])rivilege conf(>rred, it nnist have been so. 
 
 Lord Watmn. Having no intermediate Statutes there 
 could not be any privilege. J do not know whether the 
 wcu'ds " or jiractice " may have raised any privilege. I. 
 do not know, but 1 think presumably that would not 
 arise. 
 
 Mr. II<dd<uw. The sim[)le (pu'slion is whether there is 
 ji right or [)rivilege which has been conl'errcd on })ersons 
 Avliohave become ihe minority under any intermediate 
 Statute. Now my sul)mis!sion to your ljordshi[)s is that 
 such rights and privileges as the minority have within 
 the meaning of the Section 
 
 Lord ]Vatmn. You cannot refer that phrase "the Pro- 
 testant or Uomau Catholic minority " to some temporary 
 
254 
 
 Manitoba School Cask. 1894. 
 
 proportion which is Ji fluctuating" one. Docs not it mean 
 the minority at tlie date when the Act that is said to 
 infringe on their privilege becomes hiw ? 
 
 Mr. Ilaldanc. 1 tliink it may be thai. I am content 
 to take it so. 
 
 Liwtl Watson. I think you must fix somc^ period, 
 otherwise they may have been the minority half-a-ilozeu 
 times, and the majority time and time al»out. 
 
 Mr. Ilahlane. ]>ut still it is a right or privilege which 
 they are to have in their capacity of a minority. I 
 mean to go back to Lord Macnagliten's ilhistration. It 
 cannot be that the Roman Catholics, who had to pay 
 rates equally with everybody else to support an unile- 
 nominational system, could say. " Oh, we have a right 
 or privilege. We object to this undenominational 
 system being swept away, and we have a right or 
 privilege to have education organised by the payment 
 of rates." That will not do. If that will not do, then 
 you have to say into which category the Statute you are 
 construing falls— whether it falls into tlu; category of a 
 Statute oi that kind which confers rights and ju'ivileges 
 on the community as a whole, or whether it falls into 
 the category of a Statute which coui'ers rights and 
 privileges upon some sort of class, who nuiy qua class 
 become the minority aftc^rwards. My submission to 
 your Lordships is that these intermediate Statutes are of a 
 kind which created rights and privileges of the first 
 order, which canity upon the community as a whole. It 
 is not necessary for me to go into the details of them. 
 I only point out to your Lordships this, that starting 
 with the Act of 1871, which is a good illustration of 
 what happened later, the control of education was given 
 to a Connnon Board, and it was only when yon came to 
 what you may call the minority rights, when yon came 
 to the question of the provision of religious books, and 
 the selection of teachers, that Catholics qua Catholics or 
 Protestants qua I'rotestants, had any recognition at all. 
 For the rest, the teaching was indilferent on the General 
 ])oard. There might have been Mahommedans or 
 Unitarians, or members of any sect. There is no 
 religious qualification, and for that reason I say, that 
 while you have a denoniinational system there within 
 
Manitoba School Case, 1894 
 
 255 
 
 the moiiiiiiig of Sub-s(3etion 2, the rights and privileges 
 coni'eired were conibrred on the connnunity us a 
 whok.', and never did beeomo the rights ana privi- 
 lo^oa oi' any class who could assume the position 
 of a minority. Now when you pass to the Manitoba 
 School Act of 1881, which contains a code, you have 
 some things which illustrate what hapi)ened very 
 strikingly. In the iirst yliiw the Act re-constitutes the 
 Board, making its nuMubers 21, and giving a nuijority to 
 tlu! Protestants. Nobody complained of that. Of course 
 it may be observed that they did not think it worth 
 appealing against • but at any rate they did not appeal 
 ag.'iinst it, and they apparently construed that alteration 
 not as one which aft'ected the rights and privileges of a 
 minority. 
 
 'The Lord Chancellor. Supposing they had passed an 
 Act saying that no Roman Catholic should be eligible to 
 be on the Board, what would you have said then ? It 
 did not interfere with any right or privilege they had at 
 the time of the Union, because no such JJoard existed. 
 The JJoard was only, as you say, a creation of the legis- 
 lation. 
 
 Mr. IlahJane. I will give your Lordship my answer. 
 It would have been open to the Legislature of Manitoba 
 to sweep away the whole system. 
 
 The Lord Chancellor. But still before we come to that 
 there is the prior (juestion, would there have been any 
 Appeal to the Governor-General in Council ? 
 
 il/r. Ilaldane. Is your Lordship speaking of a 
 Statute which was passed for the first time or an 
 amending Statute ? JJecause if it is a Statute passeil for 
 the first time 
 
 The I^ord Chancellor. The fu'st time they provided for 
 equal n\imbers, because at that time they were about 
 equal, and 1 suppose it may ha\e been considijred that 
 they could protect themselves, but one or the other grew 
 — I am supposing the Protestants to grow, as was the 
 case — and supposing instead oL' merely incrtsasing the 
 number of Protestant re])resentatives they had excluded 
 all Poinan Catholics. That, of course, would luive been 
 intra cires. 
 
 Mr. Ilaldane, Yes. 
 
256 
 
 Manitoha School Case, 1894. 
 
 The Lord Chancellor. Would tlicy have been without 
 redress in such a case ? 
 
 Mr. llnhlane. I do not see how thoy could have had 
 rcdresB. 
 
 The Lord (lidnceUor. Your ohjecrion must o-othat length. 
 
 }fr. Ha/dane. Yes, I do not think tht^y could, and ap- 
 ])arently so they thought, because although they did not 
 exclude Roman Catholics, tlu-y put them in a minority. 
 
 The Jjord (■hancellor. \\\\i the general Board still had 
 powers which they might have been (juite content to 
 leave to a Jioard of Protestants alone. You say the 
 Sections had less power. 
 
 Mr. Blale. The Jioard's powers were* reduced ; the 
 Section powers were increased. 
 
 Mr. Ilahlane. I do not think they were. My friend 
 suggested something of that sort in the course; of tlu; 
 argument, but on looking at the schedide what I found 
 was this, that while the JJoardmight regulate the general 
 organisation of counnon schools, and so on, the Section 
 was to have under its control the management of 
 the schools, and the Section is to arrange for the 
 examination of the teaching and the selection of 
 the books and maps and so on. There is that dif- 
 ference, and then there w" ' given a reference to 
 religion and morals. It is quite true that the Board on 
 that occasion did not have the selection of what I nuiy 
 call the non-sectarian books. There was that difterence, 
 but the argument must go to this, that that Act was 
 ultra vires and would have be(3n idtra vires if it had 
 gone further. 
 
 The fjord ('hancellor. And not only that, but that 
 there was to be no Appeal. 
 
 Mr. Ilahlane. That it was within the uncontrolled 
 competence of the provincial legislation. Well, my 
 Lords, the Act of 1881 went a ver}- loug way, because 
 it established compulsory education. It did not nu-rely 
 establish free education. It establ'shed rati' aided 
 education, it established education which was aided by 
 grants, and it establisheil a provision for compulsory 
 education. The whoh; of that machinery was swept 
 away by the Act of 1890, and under the Act of 1890 
 what was substituted was a system which was purely 
 undenominational, as your Lordships have held, which 
 
Manitoba School Case, 1894. 
 
 257 
 
 the 
 
 was not compulsory, and which consists of free education 
 out of the rates and grants out of the funds of the 
 Province of Manitoba. I say that, standing by itself, 
 was within the competence of the Provincial Legislature, 
 and I say that there was nothing that interfered with 
 the Provincial Jjcgislature passing it by reason of the 
 legislation which had takcm plac(3 intermediately, because 
 that legislation was legislation, as I venture to submit on 
 its construction, in the interests of the community as a 
 whole, and becjaise the rights and privileges which a 
 class of persons who afterwards became a minority had, 
 were rights and privileges which were in the nature of 
 privileges or rights relatively only to the existence of 
 the general system, and the system not being a system 
 which was given in the interests of any class or section 
 of the connnunity whi(;h had come to be the possession 
 of any minority qwl minority, was a system which could 
 competently be swept away. 
 
 My Lords, that seems to me to oxliaust all that is to 
 be said upon the subject of this second point which I 
 have spoken of. If your Lordships should take any other 
 view it comes to this, that there is scarcely any educa- 
 tional system of a denominational character which the 
 Manitoba Legislature has set up that it could competently 
 alter without interference at every turn. 
 
 Lord Shatid. No, it must be something that may affect 
 one body of religionists. Catholics or Protestants, 
 
 Mi\ Ifnhlane. If your Lordships were to take this very 
 wide construction 
 
 2'he Lord Ghancellor. It would not be inconsistent 
 with a system such as works in Ontario, where you have 
 an undenominational system, as I understand, for the 
 majority of Protestants coupled with a separate school 
 system for the Catholics. 
 
 Mr. Ilaldane. My Lord, is that certainly so ? Under 
 this Act of 1881, amongst other things which happened, 
 the grant from the taxes, not from the rates, which used 
 before to be distributed evenly between the Catholics 
 and Protestants, was distributed unevenly in proportion 
 to the children. Well the result of that, of course, is 
 that the Catholics have to pay more in other ways in 
 order to make up the quantum of money which was 
 
258 
 
 Manitoba School Cahe, 1894. 
 
 necessary for thoir education. Thoro you have, if you 
 will take what I will call tlio wider const ruction a<ianist 
 which I am contendinp^, an infrin^'cmcnt of a right or 
 privilege of the Catholics. More money is going to the 
 rrotcsiants at the ('X])onso of tiic (yatholics. Again, 
 tlien^ are other illustrations ol' the same kind of thing. 
 I could niulti])ly tlum. Sup])os(' there had been a three- 
 penny rate established, and it had been increased to a 
 fourpenny ra by : soi of the different distribution of 
 
 the grant, the r; 
 
 ite 
 
 1 a vj 
 
 atholic district beinj 
 
 biggiu- 
 
 than it used to ? ?: l*y ,oason of less money coming from 
 the State, the in^ ^•:^itior. f the fourpenny rate would be 
 another illustration of iuiei ^erence with a right or privi- 
 lege. 
 
 Lord Macnmjhtcn. Although the Act may give a right 
 of Appeal to the Governor-General in every case in 
 which rights or privileges are at!(K'ted, the Governor- 
 General surely must consider whether the complaint is 
 a substantial complaint or not, must not he ? 
 
 Mr. Ilahlnne. Does not that bring us back to what wo 
 were dealing with before ? In the first place it is 
 anomalous that a matter of that kind should be taken out 
 of the competency of the Legislature, a matter of the 
 specific kind I am speaking of now , and handed over to 
 the Governor-General. In the second place, for whatever 
 reason Sub-section 3 of the Manitoba Act and Sub-section 
 4 of the JJritish North America Act are so drawn as to 
 speak of the function of the Governor-General to givo a 
 decision on an Appeal on the (piestion of whether a right 
 or privilege of the minority is affected 
 
 Lord Manmyliten. Do you mean to say that if there 
 was a technical and unsubstantial interl'erence with a 
 privilege the Governor-General would have to i'eel bound 
 to have recourse to this extraordinary remedy. 
 
 ]\fr. Ilaldanc. T do not think it is any more technidl 
 or unsubstantial than the functions of your Jjordships, 
 wdio often have to declare than an Act is idtra vires. 
 The Governor-General would give his decision. 
 
 Lord. ]\fac7ia(jhten. We are a judicial body, and he is 
 not sitting as a judicial body. 
 
 Mr. Llaldane. There come in those considerations 
 which I will not venture to repeat. 
 
, if you 
 
 iglit or 
 i; to tlie 
 
 f Hiiiio*. 
 a llircc- 
 sud to a 
 utioii of 
 bi^ft-or 
 n<2," IVom 
 •ould bu 
 )!• privi- 
 
 ) a rio-hl; 
 
 case in 
 
 :)venior- 
 
 plaiiit is 
 
 »vliat wo 
 ce it is 
 ikon out 
 
 of the 
 
 over to 
 diatuver 
 
 section 
 vn as to 
 o givo a 
 
 a 
 
 riii'lit 
 
 if there 
 
 with a 
 
 •1 bound 
 
 echnic.d 
 
 rdships, 
 
 a n'rcs. 
 
 id lie is 
 
 erations 
 
 Manitoba School Cahe, 1894. 
 
 259 
 
 Loril Macna;ihtcn. He is to take into consideration 
 many things which we have not to. 
 
 The Lord ChanccJIor. He cannot doanytliing himself. 
 At the last resort the only person or body who cati do 
 anything more ar(! the I'ariiament of ('aiuHla, who are 
 ceriainly not under legal ('()nij)nlsi()n to act, and certainly 
 would iu)( ad uidoss they concciveil thcrc^ was some 
 substantial ground I'or it. 
 
 Mr. JIaldanc. Oertaiidy not ; but ho is the authority 
 which by making pronouncements gives them power to 
 make legislation. 
 
 Lord MdcnfKjhten. He is the judge in the first instance. 
 You do not sn[)pose that he is to go to the Parlian? ^t 
 of Canada and say "There is an infraction, please i. !8S 
 a law." He would have power to say, " that is si "h i. 
 trumpery matter that I am not going to do anythii.-^*. " 
 
 J/r. Ilaldane. I suppose the maxim " De iiN'ni...n n>i 
 c«m^ /(U'" a})|)lies to him as much as to anybod / c,j,i3. 
 But I am putting it that qna this class oL' tlr s 'is 
 business is to declare his opinion. 
 
 2'he Lord (7iance//or. That would not soein "requisite for 
 the due execution" if he thought that there had been an 
 infringement, but that it was so unsubstantial that in 
 substance they had all the rights which were intended 
 to bo preserved to them. 
 
 Mr. ILddane. That would be a question for the Par- 
 liament of Canada. 
 
 I'he Lord ChanceUor. The words are " As seems to 
 the Governor-Gen(>ral in Council re([uisite for the due 
 execution of the provisions of this Section." It would 
 not seem to him reijuisite if ho thought there was no 
 substantial ric'ht interfered with. 
 
 Mr. ILddane. That might be ; but T am putting cases 
 which might be more substantial such as the ([uestionof 
 the grant, and I press upon your Lordships that if you 
 do construe the sections in this very wide sense, and 
 unless you limit them in the direction which the Re- 
 spondents contend for at your Lordsliips' liar, the con- 
 sequences are such as not lightly to be t;iken to have 
 been in the contemplation of those who fran'od this Act, 
 and that the Provincial IjOgislature would be ^lampered 
 at every turn. I submit upon the whole case that it is 
 
260 
 
 Manitoba School r'vwK, 1894. 
 
 1 
 
 f 
 
 possiblo 80 to construe Section 22 and its variouH 8ul)- 
 yections uh to ^'ive ofVect to the whole oC the niiitterH 
 which require to be iDrovidod Tor, and yet so as to leave 
 the Legislature of Manitoba in the free and untram- 
 mellod possession oC the powers which prima facie wore 
 given to it under the initial words oi' the section. 
 
 (Mr. Blakk was then heard in reply). 
 
 The Lord Chancellor. In the old Canada, l)efore the 
 separation into the Provinces oC Ontario and Quebec, 
 the old Province of Quebec — I think it was called 
 Quebec ? 
 
 Mr. Blake. Yes, at one time. 
 
 The Lord GhanceUor. Included Ontario and Quebec ? 
 
 Mr. Blake. Lower Canada and Upj)er Canada is at 
 present Quebec and Ontario. 
 
 The Lord Chancellor. Had they latterly separate 
 Legislatures ? 
 
 Mr. Blake. No, my Lord, ihe province was a united 
 province. 
 
 The Jjord Chancellor. It remained so down to ? 
 
 Mr. Blake, From 1841 to 1867. They had a sort of 
 double S'^stem. They attempted to create an imperfect 
 federation and a common Legislature ; for instance they 
 had an Attorney-General for Upper Canada and an 
 Attorney- General for Lower Canada, but the Legislature 
 was common. 
 
 The Lord Chancellor. At that time if yen take Ontario 
 and Quebec together, would there be an opposite policy 
 in regard to religious faith ? 
 
 Atr. Blake. That depends upon the time your Lord- 
 ship takes, because the population of Ontario was in- 
 creasing fast, much faster than the population of the 
 Province of Quebec ; but at the end of the time, I should 
 think I am right in saying that in the aggregate there 
 would by a Protestant popular nuijority, but the circum- 
 stances were such that porh;ips that might not answer 
 the (piestion that is in your Lordship's mind, because 
 the distribution of the population has a good deal to do 
 with it. 
 
 The Lord Chancellor. It is not so material wiiich 
 party is actually in the majority, because at all events if 
 the Protestants were in a majority in the Commons 
 
 V 
 
Manitoba School Case, 1894, 
 
 861 
 
 ITouHo, ilio CatliolicH would 1)0 in so largo a ininorily 
 that tlioy would bo a v^ory Hubstantial power in opponiug 
 logJHlation. 
 
 Mr. BInle. A vory Hul)Ktantial povvi-r. 
 
 The Lord (lianccllor. OfcourHi! when they came to bo 
 Hoparaied into two provinces a totally different state of 
 thinf!,"s arose, because in such case, thoug'h in opposite 
 directions as re^ifards the opposite creeds, th(;re would bo 
 a vciry hirge majority and a vory small minority in each 
 separate province. 
 
 Mr. Wake. Your Lordship has just liit the point. 
 
 7'hc Lord Chancellor. At all events there was a ju'c- 
 don)inant majority in Quebec of Catholics and a pre- 
 dominant nuijority in Ontario of Protestaius. 
 
 Mr. lilal'e. Yes, and they were in a Comuon Legis- 
 lattU'e, witli equal numbers in the Legislature, although 
 the Protestant province had the larger population. The 
 j^ractical result was that with the division of parties and 
 so forth, it was impossible for the Protestants of Ontario 
 to abolish the separate schools which had been, after a 
 long contest, established in that province, and on the 
 other hand the Protestants were sufficiently powerful to 
 protect their brethren in Quebec from any encroachment 
 on their rights. 
 
 Lord Wat'ion. Legislation became impossible excejit 
 on the footing that they were to be dealt with as two 
 separate States. 
 
 Mr. Blake. Yes, but each side agreed before the sepa- 
 ration which, as vour Lordship said, loft a very small 
 minority of a different faith in each province, each side 
 agreed to stereotype the situation. That is public and 
 notorious. 
 
 The Lord Chancellor. It appears on the face of the 
 legislation. 
 
 Mr. Blake. Yes, it appears on the face of the legisla- 
 tion ; and the public documents preceding the legislation 
 show that fact. 
 
 Ljord Macnaghtcn. You do not know what the popula- 
 tion in Manitoba amounted to, and how it was divided 
 when the Province of Manitoba came in ? I thought it 
 was in the pleadings in the former case, but I cannot 
 lind it. 
 
262 
 
 Manitoha School Cask, 1894. 
 
 Mr. Jifnlc. No, my Lord, \ do not know how many 
 tlioru were; there wero very few. My friend, Mr. Ewart, 
 who knovvH, H.'iyH jiLout 15, ()()() ; of coufHc ihut exchidua 
 Indians. 
 
 Lord M(inin<iht(>n. Yoh, 15.000 of each. 
 
 Mr. lilake. No, my liord. I think — I think it was only 
 11,000 or 12,000 alloyvliier ; but ho «ayH 15,000 
 altogether. 
 
 Lord Macnnyhten. I thought the CatlioiicH wero rather 
 in a majority at that time. 
 
 Mr. lilal'c. My friend in not cble to Hay. We know 
 that they were about e(iual, but which had the Hlight 
 majority we are not .able to tell your JjordHhip, but it was 
 (juite palpable that that eonditien of tilings was a tem- 
 
 Sorary eonditiim, and would be changed in one obvious 
 irection. So tiiought all those who iiad great expecta- 
 tions oi" the ra])id setth'inent of tlie country, and there- 
 fore the future tiiere eertaiidy olfered (tven mon^ cause 
 for anticipatory provision than the case of the (dd pro- 
 vinces. 
 
 Now I do not know that my duty is to detain your 
 Lordships at any length in reply. 
 
 Lord Shand. I think your argument anticipated all 
 the points that liave been put. 
 
 Mr. Bhdi-c. There was just onii single observation 
 that I d(!sired to make in reference to a suggestion made 
 by one of your Lordships. 
 
 Lord Watmn I do not think tlun'o was any pjvi't of the 
 argument which was not anticipated, with the exception 
 of one point. I do not know how far you think it neces- 
 aary to deal with it, and that was the suggestion last 
 made that a particular right or privilege, or a condition 
 of matters which was created in favour of all the com- 
 munity could not bo resolved into a privilege or right of 
 the majority at the time when it was created who had 
 become the minority under the new legishition. 
 
 Mr. Blake, liefore answering your Lordships cpiestion 
 I have just had a book put into my hiinds which shows 
 that my recollection was nearly correct. " The popu- 
 lation of the Red River Settlement in 1870 was com- 
 posed of 2,000 whites, 5,000 English half-breeds, and 
 
Manitoha SciKtoi. Cask. 1894. 
 
 2m 
 
 I' 
 
 r),0()(> Krcnch luiU-broixlH," inukinnf 12,000 uh tho popii- 
 tioii in 1870. 
 
 y/tf> fjort/ (■Imnvcllnr. Tlio French liall-brccdH woro 
 prcHiiiiiaMy < 'atliolics and tho Kn^Iisli liall'-hrci'ds wcto 
 |)n)l)ahly I'rolcHlaiitH, and tlio wliitcH nii^-lit liavu boon 
 Honic of one and Hoinc of the otlicr. 
 
 Mr. /i/u/i'e The Kn'j.'li^'h lialf-hrct'dH would Iw j)arlly 
 ProtoHfanIs and pariiy ( !atholi('H. I should ^'allicr lluit 
 tliero waH probably a Hli;j,ht {)ro|)()udorancu of (JallioiicB. 
 
 Lori/ II atson. You nnist niako houio ailowanco Cor 
 (lioHC! who wore indillrronl. 
 
 Mr. lilnhe. TIkhi, my Lord, I own lliai I think my 
 h'arni'd Iriend's HU^'^'oHlion, Icj which Lord Watson ban 
 directed my attention, has no value unless you apply it 
 in the concrete ; in tlie al)stract it has no yalue. Wiiat 
 is yoiu' system ? The Li\ii,'islature is always le^'islatin.i;- 
 )r(!smnably for the benelit of the whole eoMununity. 
 :^jven althou^'h it le^'islates in resjject of a part of the 
 community it le,<;'islates in rospeet of that part in accord- 
 ance, as it belieycH, with the interest of the whole, and 
 when the K^^'islation comprehends the whole it still may 
 be of a character vyhich specially atfects part, by rt'co^- 
 nizino' a division of the whole into i)artsand by urantinii' 
 rights and privileges t*) parts oi the community. My 
 learned friend has not been able to shew by any argu- 
 ments a})preciable by a less subtle intellect than his own 
 that there wore not rights and privil(>ges of tlu^ lloman 
 Catholic minority accorded to it by this legislation. 
 
 Lord WatHon. I think unilor these Acts tliat it is 
 obvious that they are referring to what are considered 
 by these parties to be privileges. 
 
 Mr. Blake. Yes, my Lord. Of course your Lordship 
 must remember that it is their judgment which is to 
 prevail. 
 
 Lord Wat. m. Privileges conferred by Acts of Parlia- 
 ment sometimes 
 
 Mr. Bhike. Ves. It may be damnosa hercditas ; but 
 they wanted denominational schools, and those 
 denominational schools were considered a privilege. 
 Their right to be separated in respect of education is a 
 presumable privilege which they were certainly granted 
 by this law, and that has been removed. I may add 
 
264 
 
 Manitoba School Case, 1894. 
 
 W. 
 
 HI 
 
 this. My learned friend suggested that the Board under 
 the last of the Acts was differently constituted, and yet 
 there had been no Appeal ; but it is quite clear that 
 both with reference to the division of the school sec- 
 tions, and with reference to the school books and so 
 forth, the Board w':s deprived of authority on the later 
 occasion. It was a very remote argument. The Koman 
 Catholics wore well aware that the Appeal in this case 
 was not to be a technical Ai:)peal, and unless they could 
 prove substantial injustice they could not get redress. 
 And to say that because when the population was about 
 (jqual, the whole of the legislation was based on the 
 theory of equality — twelve Roman Catholic school dis- 
 tricts and 12 Protestant school districts — and the school rate 
 equally divided because the school population was equally 
 divided, it wouldbo a substantial iniquity to recognise the 
 later and changed conditions, and to make true equality 
 continue by a division of the rate in proportion to the 
 population, which was the actual result realised originally 
 would have been a pretension, which before a political 
 tribunal, such as the Governor in Council or the Par- 
 liament of Canada, would of course have met with no 
 favour whatever. Therefore I am not surprised that 
 these amendments passed, not merely without remon- 
 strance or appeal on the part of the Roman Catholics, 
 but without objection in the Legislature as far as we 
 know. We do not know that they caused any com- 
 motion, or that there was any dissent from these changers. 
 They appear to have passed w>h general consent and 
 assent, still thev altered the ''Onditions so far as the 
 whole community was concerned, so as to make them 
 agree with th& altered conditions as to population of 
 that community ; they were in truth framed to continue 
 in the same relation, and in the same circumstances, 
 the specific rights of the minority. 
 
 There was, as I have said, one observation I wished 
 to make, and that is that I venture to suggest to your 
 Lordships that the 6t,h question requires a determination 
 whether there vere any rights or privileges created for 
 the m^'nority imder these intermediate Statutes, and 
 whether any such rights or privileges have been 
 infringed, and that is a cpiestion which arises, not upon 
 
Manitoba School Cahe, 1894. 
 
 266 
 
 any evidence, but upon a comparison of the two Statutes, 
 and must be in this sense a ({uestion of hiw, that it is fit 
 for the determination of a k)gal tribunah Your Lordships 
 have before you one law, which provides one state of 
 things, you have before you another law which it is 
 alleged alters that state of things injuriously to the 
 minority. 
 
 The Ijord Chancellor. Having in view the conten- 
 tion of the Respondents, it iloes show that there is a 
 question of law. 
 
 Mr. Blake. Yes. 
 
 The Lord Chancellor. Their contention is that sup- 
 posing the question is whether rights and privileges are 
 affected, they an^ not affected, because there were no 
 rights of the minority within the meaning of the section. 
 
 j]fr. Blake. Quite so. 
 
 Lord Shaml. I understand the rights you refer to are 
 these, that about the books, and that ab(Uit the assess- 
 ments. 
 
 Mr. Blake. T go further than that. I find a system 
 under which there are facilities for organizing, main- 
 taining and regulating our schools by law, and as an 
 incident to that system, there are compulsorv rates for 
 our schools and nnmunity from other school rates ; and 
 also as an incident to that system a right to obtain cer- 
 tain grants. 
 
 Lord Shand. When you talk about the systera does it 
 go much deepe'' than what I have been now saying on 
 the organization of the schools. It goes that depth also. 
 
 Mr. Blake. Quite so. 
 
 Jjord Shand. It goes this depth. You find that ihey 
 had during thai period State schools, which were d'> 
 nominational schools. 
 
 Mr. Blake. Yes, I find a system of State schools sup- 
 ported by the Catholic minority 
 
 Lord II a^s'o;i. Supported by State money. 
 
 Mr. Blake. Supported partly by State money and 
 partly supported by money levied on the Roman Catholic 
 minority. 
 
 Ijord Watson. What struck me in the discussion is the 
 point about the assessment of rates and the books. 
 
 Mr. Blake. Of course that does include the action of 
 the bodies which have the right to " btrike " the rate, and 
 
266 
 
 Manitoha School Cask, 1894. 
 
 the authority to regulate the schools — the I3oard and the 
 school trustees. 
 
 Lord Shand. Do you think it is necessary for us to go 
 much deeper: that there was established a system of 
 denominational educaticm which was rtjgarded as a 
 privilege by all the parties who were in the minority. 
 
 Mr. Bhdx'o. No ; but I should not like to be taken as 
 acceding to any view or statement which is put to me 
 which might be held by any perverse ingenuity as 
 telling against me later, 
 
 Lord Shand. It would be a very different thing to go 
 to the Governor-General to ask him to establish a 
 denominational system, or get him to ask the Legislature 
 to do it. I do not think you would ask that. You 
 would ask the Governor-General to do it. 
 
 Jfr. Blale. What we ask your J^ordships is, what the 
 privileges were and how far they have been infringed ; 
 and then we propose to ask the Governor-General to 
 det(!rniine how far he will go. T do not ask your Lord- 
 ship to make any suggestion as to his action, which I 
 conceived from the beginning is political. He is to be 
 instructed as to the law ; aud then his action and the 
 action of the Parliament will carry the thing out. 
 
 Lord Shand. I was not asking for a moment as to that 
 I was looking to see what your ste])s would be afterwards. 
 
 Mr. Bl(th\ Yes. One step at one time. If your 
 Lordships will allow me to advance a stejD by reversing 
 this decision I shall be content. 
 
 Tlie Lord Clianccllor. We will consider our judgment. 
 
Manitoba School Cask, 1894. 
 
 S67 
 
 Jitdfjmoit of the Jjords of the Judicial Committee oj the 
 I*rin/ Coiinct'/ on the Appeal of Jirophij and others v. 
 The Attornej/- General of Manitoha, from the Supreme 
 Court of Canada ; de/ircred 2[)th Januar/j 1895. 
 
 Present : 
 
 TiiK Loud Chanci^llou, 
 LoKi) Watson. 
 Loi{i) Macnaghte:.. 
 Loud Siiand, 
 
 [Delivered hij the Lord Chancellor.'] 
 
 In the year I8i)0 two Acts were passed by the Legis- 
 lature of Manitoba relating to education. One of these 
 created a Department of Education and an " Advisory 
 lioard." The Board was to consist of seven members, 
 four of whom were to be appointed by the Department 
 of Education, two to be elected by the Public and High 
 School teachers of the Province, and one to be appointed 
 by the University Council. The Advisory Board were 
 empowered (amongst other things) to authorise text 
 books for the use of pupils and to prescribe the form of 
 religious exercises to be nsed in schools. 
 
 The other Act which was termed "The Public Schools 
 Act " established a system of public education '' entirely 
 non-sectarian," no religious exercises being allowed 
 except those conducted according to the regulations of 
 the Advisory Jioard. It will be necessary hereafter to 
 refer somewhat more in detail to the prro visions of 
 this Act. 
 
 The Act came into force on the Ist of May 1890. By 
 virtue of its provisions, by-laws were made by the 
 Municipal Corporation of Winnipeg, under whicJi a rate 
 was to be levied upon Protestant and Roman Catholi(! 
 ratepayers alike for school purposes. An application 
 was thereupon made to 'he Court of Queen's Bench of 
 Manitoba to ({uash these by-laws on the ground that the 
 Public Schools Act 1890 was ultra vires of the Pro- 
 vincial Legislature, inasmuch as it prejudicially affected 
 
mtm 
 
 268 
 
 Manitoba School Case, 1894. 
 
 %■ 's^ 
 
 a right or privilege with respect to denominational 
 schools which the Roman Catholics had by law or 
 practice in the Province at the Union. The Court of 
 Queen's Bench refused the application, being of opinion 
 that the Act was intra vires. The Supreme Court of 
 Canada took a different view, but u})on appeal this 
 Board reversed tlieir decision and restored the judgment 
 of the Court of Queen's Bench. 
 
 Memorials and petitions were afterwards presented 
 to the Governor-General in Council on behalf of the 
 Roman Catholic ndnority of Manitoba by way of appeal 
 against the Educati(m Acts of 1890. These memorials 
 and petit icms having been taken into consideration, a 
 case in relation tluu'eto was in pursuance of the pro- 
 visions of the Supreme Jind Exchequer Courts Act 
 referred by the Gov-rnor-Generid in Council to tlio 
 Supreme Court of Canada. The questions referred for 
 hearing an 1 consideration were the following : — 
 
 " (1) Is the appeal referred to in the said memorials 
 and petitions, and asserted thercjby, such an appeal as 
 is admissible by Sub-section. 3 of Section 93 of the 
 British North America Act 1867, or by Sub-section 2 of 
 Section 22 of the Manitoba Act 33 Victoria (1870), 
 chapter 3, Canada ? 
 
 " (2) Are the grounds set forth in the petitions and 
 memorials such as may be the subject of appeal under 
 the authority of the sub-sections above referred to or 
 either of them ? 
 
 " (3) Does the decision of the Judicial Committee of 
 the rrivy Council in the cases of Barrett v. the City of 
 Winnipeg and Logan v. The City of Winnipeg dispose 
 of or conclude the application for reth'ess based on the 
 contention that the rights of the Roman Catholic 
 minority which accrued to them after the Union under 
 the Statutes of the Province have been interfered with by 
 the two Statutes of 1890 complained of in the said 
 petitions and memorials ? 
 
 "^1) Does Sub-section 3 of Section 93 of the British 
 North America Act, 1867, apply to Manitoba ? 
 
 '(5j Has His Excellency the Governor-General in 
 Couiicil power to mak.. the declarations or reiuedial 
 oi'^'.^re wiiicli wre asked for in the said memorials and 
 
Manitoba School Case, 1894. 
 
 269 
 
 petitions, uKsuining tlio material faeis to bo as stated 
 therein, or has His Excellency the Governor-General in 
 Council any other jurisdiction in the premises ? 
 
 " (6) Did the Acts of Manitoba relatiiig to education, 
 passed prior to the session of 1890, confer on or continue 
 () the minority 'a rig'ht or privile^n^ in relation to 
 'education' within tiie meanino- of Sub-suction 2 of 
 Section 22 of the ^lanitoba Act, or establish a system of 
 se])arate or dissentient schools ' within the meaning of 
 ' Sub-section ',\ of Section 9.'^ of tlio liritish North America 
 ' Act, 18G7,' if said Section 93 be found applicable to 
 Manitoba ; and if so, did the two Acts of 1890 complained 
 of or eitlier of them alfect any right or privilege of the 
 minority in such a manner that an appeal will lie there- 
 imder to the Governor-General in Council ? " 
 
 The learned Judges of the Supreme Coiu't were divided 
 in opinion upon each of the (piustions submitred. They 
 were all however by a majority of three Judges out of 
 live answered in the negative. 
 
 The appeal to the Governor-General hi Council was 
 fomu'od upon the 22ud Section of the Manitoba Act, 1870 
 and tl'".3 9ord Section of the British North America Act 
 1867. Jiy the foruun" of these statutes (which was con- 
 firmed and declared to bo valid and ♦effectual by an 
 Imperial Statute) Manitoba was created a Provi.icc of the 
 Dominion. 
 
 The 2nd Section of the Manitoba Act enacts that after 
 the prescribed day the British North America Act shall 
 except those parts thereof which are in terms ma'ln or 
 by reasonable intendment may be held to be sp' dly 
 applicable to or only to atfect one or more but ' the 
 whole of the Provinces now composing the D( iiion, 
 and except so far as the same may be varied this 
 Act, bo applicable to the Province of Manitoli m the 
 same way and to the like extent as they ap] to the 
 several Provinces of (Janada, and as if the Pi evince of 
 " Manitoba had been one of the Provinces originally 
 '* united by the said Act." It eamiot be (pu'stioned 
 therefore that Section 93 of the British North America 
 Act (save such parts of it as are specially ai)pli<able to 
 some only of the Provinces of which the Dominion was 
 in 1870 composed) is made applicable to the Prc\ iceof 
 
270 
 
 Manitoba School Case, 1894. 
 
 ; 
 
 Manitoba except in so far us it is varied by the Manitoba 
 Act. The 22nd Section of that Statute 'deals with the 
 same Kubject-matter as Section 93 of the liritish Nortli 
 America Act. Tlie 2nd Snb-scction of'tliis latter section 
 may be discarded Irom consideration, as it is maniCeslIy 
 applicable only to the Provinces of Ontario and Quebec. 
 Tlie rcmainin^ii," ])rovisions closidy corrcsixmd with those 
 oi" Section 22 of the Manitoba Act. The only ditlerence 
 between the introductory part and the 1st Sub-section of 
 the two sections, is that ni the Manitoba Act the words " or 
 practice "are added after the word "law" in the 1st Sub- 
 section. The 3rd Sub-section of Section 22 of the Manitoba 
 Act is identical with the 4th Sub-sect i(m of Section 93 of 
 the British North America Act. The 2nd and 3rd sub- 
 sections res] ectively are the same, exce])t that in the 
 2nd Sub-secti(y»i of the Manitoba Act the words '' of the 
 " Legislature of t'le Pj'ovince or" are ins<'rte(l before the 
 words " any Prov ncial authority," and that tlie 3rd Sub- 
 section of the I'l'itish North America Act connnences 
 with tlie wor(ls : " Where in any Province a system of 
 " separate or dissentient scliof)ls exists by law at the 
 " Union or is thereafter established * y the Legishiture 
 "of tlie Pro\ incc." In view of ti)is comparison it 
 appears to their L(H'dshi])s impossible to come to any 
 other conclusion than that the 22nd Section of the 
 Manitoba Act was intended to be a substitute for the 
 93rd Section of the British Norih America Act. Obviously 
 all that was intended to be i(h'ntical has been repeated, 
 and in so far as the provisions of the Manitoba Actditl'er 
 from those ^f the earlier Statute they must be regarded 
 as indicating the variations from those ])rovisions in- 
 tended to be introduced in the Province of iManitoba. 
 
 In their Lordships' opinion therefore it is the 22nd 
 Section of the Manitoba Act which has been construed 
 in the present case, though it is of course legitimate to 
 consider the terms of the earlier Act, and to take ad- 
 vantage of any assistance they mav afford in the con- 
 struction of I'uactments with winch they so closely 
 ccuTespond and which have been substituted for them. 
 
 Before entering u})on a critical examination of the im- 
 portant section of the Manitoba Act, it will be conveni- 
 ent to state the circumstances under which thut Act was 
 
Manitoha School Cask, 1894. 
 
 271 
 
 passed, and also ilio exact scope of I ho division of this 
 JJoard in the case of Barrett v. TJie (Jitji of Winnipcff 
 wliicli seems to have <i,-iven rise to some misajijjrelien- 
 sion. In 18()7 the union of the Provinces of Canaihi, 
 Nova Scotia, and New IJrniiswiek took phice. Amoni;' 
 the ol)staeh'S whioli had to he oN'ei'eoiiie in oi'der to hrin^' 
 ah(»iit that union, none |)( I'haps presenlecl o-|'(>aler dilli- 
 cuhy than the dilferenees of o[)inion which existed with 
 re^'ard lo the (|uestion of e(hication. It had l)een the 
 subject of much controversy in Uj)[)er and Lower 
 Cana(hi. In Upper Uanathi a y'eneral svstem of uu(h,'- 
 nominational education had been estabhshed, but with 
 provision for separates schools to sup[)ly tlu^ wants of the 
 Catholic inhal.)itants of that Province. The 2nd Sub- 
 section of Section 9^^ of thi; Pjritish North America Act 
 extended all the jtowers i)rivile<>;es and (hities whicii 
 were* then by law conferred and imposed in lJp[)er 
 Canada on the separate scliools anil school trustees of 
 th(; Roman Catholic inhabitants of that Province to the 
 dissentient schools of the I'rotestant and K<i'ii.i'i Catholic 
 inlialiitants of (jueltec. There can be no civi.ot that the 
 views ()'" the Iloman (Jatholic iidiabitants of (^ue]>ec and 
 (.^nlario with regard to edncation were shared by the 
 mendjers of the same connnunion in th(> territoiy which 
 afterwards became llie Province of Maiutoba. They 
 regjirth'd it as essential that tlu> education of their chil- 
 dren shoidd, bo in ac^'ordance with the teaching of their 
 Chnrch, and considered that such an education could not 
 be obtaino<l in {)ul)lie schools dosignt'd I'or all the mem- 
 b(;rs of the conjmnnity alike, wliatever their creed, but 
 could only bo secureil in schools conducted under the 
 iniluonce and guidance of «lie autlK-rities of tlieii' ( "hurch. 
 At ill.' lini'.' when tin' l*rovince of Manitoba became part 
 of tlie Donnnion of (Janada, the L'oman Catlmlic and 
 Protestant popuiations in the Province were ab(!ut oipud 
 in number. Prior to that time there did not exist in the 
 territory then incorporated any ])ublic svstmu of t'duca- 
 tion. The several religious denominations liad estab- 
 lished such schools as they thought tit, and maintained 
 them by means of funds voluntarily contributed by the 
 mombers of their own connnunion. None of them ro 
 ceived any State aid. 
 
272 
 
 Manitoba School Case, 1804. 
 
 , -'^^f 
 
 The torins upon which Manitoba was to hecomc a 
 Provincd oi' the Dominion woro matter of negotiation 
 Letween reprcsentativoH of the inhabitantn of Manitoba 
 and of the Dominion Governnujiit. The terms agreed 
 upon, HO far as education was conct^nicd, muKt be taken 
 to be embodied in t.lie t?2nd Seclioii of the Act of 1870. 
 Their LordBliipw (h) not tliiid< that anything is to be 
 gained by tlie impiiry iiovv Far th(* provisions of this 
 Section pkiced the rroviiice of Manitoba in a dilferent 
 position i'rom the oilier rrovinces, or whether it was ono 
 more or k^ss advantageous. Tliere can be nopresum])ti(m 
 as to the extent to wi ich a variation wasinteiuhnh Tliis 
 can only be determined by construing the words of the 
 Section according to their natural signification. 
 
 Among the very first measures passed by the Legis- 
 lature of Manitoba was an Act to estabhsh a system of 
 cducati(m in the Province. The provisions of that Act 
 will require (examination. It is sufticient for the present 
 to say that the system established was distinctly deno- 
 minaticmal. This system, with sonu3 modifications of 
 the original scheme, the fruit oi later legislation, re- 
 mained in force until it was put an end to by the Acts 
 which have given rise to the present controversy. 
 
 In Barrett's case the sole (juestion raised was whether 
 the Pi: i lie Schools Act of 1890 prejudicially affected any 
 right or privilege which the Konian Catholics by law or 
 practice had in the Province at the Union. Their Lord- 
 ships arrived at the conclusion that this question must 
 be answered in the negative. The only right or privi- 
 lege which the Roman Catholics then possessed either 
 by law or in practice was the right or privilege of 
 establishing and maintaining for the use of members of 
 their own church such schools as they pleased. It ap- 
 peared to tlieir Lordships that this rigiit or privilege 
 remained untouched, and thereibre could not bo said to 
 be afl'ectod by the legislation of 1890. It was not 
 doubted that the object of the 1st Sub-section ol" Section 22 
 was to afford protection to denominational schools, or 
 that it was proper to have regard to the intent of the 
 Legislature and the surrounding circumstanci.'S in inter- 
 preting the enactment. But the question which had to 
 be determined was the true constvuction of the language 
 
Manitoba School Case, 1894. 
 
 273 
 
 mo M 
 
 iaiion 
 
 litoba 
 
 ^Toed 
 
 takiMi 
 
 1H7(). 
 
 to bo 
 
 if tliiH 
 
 IVorout 
 
 IIB OHO 
 
 upiiou 
 
 This 
 
 of the 
 
 LogiH- 
 itoni of 
 at Act 
 irosent 
 deno- 
 ons of 
 
 )11, I'C!- 
 
 Acts 
 
 ,oii 
 
 ictlier 
 1 any 
 
 aw or 
 Lord- 
 n must 
 privi- 
 c it her 
 
 'go of 
 
 bers of 
 It ap- 
 
 ivilcge 
 
 yaid to 
 
 as not 
 ion 22 
 
 pols, or 
 of the 
 
 11 inter- 
 had to 
 
 nguago 
 
 U8od. The function of a tribunal is limited to construing 
 the words employed; it is not justified in forcing into 
 them a meaning which they cannot reasonably boar. 
 Its duty is to interpret, not to enact. It is true that the 
 construction put by this IJoard upon the 1st Sub-seetion 
 reduced withm very narrow limits the protection afforded 
 by that Sub-sin-tion in respect of denominational schools. 
 It nuiy be that those who were acting on behalf of the 
 Roman Cotliolic community in Manitoba, and those who 
 either framed or assented to the wording of that enact- 
 ment, were under the impression that its scope was 
 wider, and that it afforded protection greater than their 
 Lordships held to be the case. But such considerations 
 cannot properly influence the judgment of those who 
 have judicially to interpret a statute. The question is, 
 not what may be supposed to have been intcmded, but 
 what has been said. More complete effect might in sane 
 ct . es be given to the intentions of the Legislature, if 
 violence were done to the language in which their legis- 
 lati(m has taken shape, but such a course would on the 
 whole be ([uite as likely to defeat as to further the object 
 which was in view. Whilst however it is necessary to resist 
 an^' temptation to deviate from sound rules of construction 
 in the honn of more completely satisfy hig the intention of 
 the Leg' ''o, it is quite legitinuite where more than 
 one construction of a Statute is possible, to select that 
 one which will best carry out what appears from the 
 general scope of the legislation and the surrounding 
 circumstances to have boon its intention 
 
 With these preliminary observations their Lordships 
 proceed to consider the terms oi the 2nd and 8rd sub- 
 sections of section 22 of the Act of 1870, upon the con- 
 struction of which the (piestions submilled chiefly depend. 
 For the reasons which have been given thelf Lordships 
 concur withthe majority of the Supreme CJourt in thinking 
 that the main issues are not in any way concluded either 
 by the decision in Barrett's case or by any principles 
 involved in that decision. 
 
 At the outset this question presents itself. Arc tlie 
 2nd and 3rd sub-sections, ascontendedby tlu^ Respondent, 
 and affirmed by some of the Judges (jf the Supreme 
 Court, designed only to enforce the prohibition contained 
 
274 
 
 Manitoba yciiuoL Case, 1894. 
 
 Hi 
 
 in the Ist Hii])-KC('ti(»n ? Tlu! ar<i;uiii('iit8 ji^'aiiiHt iIuh 
 ctnitontion a]))u'ar to tlicir LonlnliipH coiicliiKivo. In the 
 fii'Ht place ihal Hub-Hoction hcmmIh no i'lirlhor proviHion to 
 enforce it. It imjJOScH a limitation on iho IcgiHlative 
 powers conferred. Any enactment contravening its pro- 
 viKions is beyond the competency of the Provincial 
 JjcgiKlalnn!, an<l therefore null and void. It wan ho 
 de(!i(led by this IJoard in Ihtrrctfs cuHe. A donbt was 
 there HUggCHted whether that appeal wan comju'tent, in 
 eon8e(inence of the proviHionK ol the 2nd Hnb-section, 
 but their Lortlships were Hatisficd that the proviHiouH of 
 sub-sections 2 and 3 did not " ojierate to withdraw such 
 " a (juestion as that involvid in the case from the juris- 
 " diction of the ordinary tribunals of the country." It 
 is hardly necessary to point out how improbable it is 
 that it should havc^ been intended to give a concurrent 
 remedy by a])peal to the Governor-General in Council. 
 The inconveniences and difiiculties likely to arise, if 
 this double remedy were; open, are obvious. If, for 
 exam2)le, the Suprenu^ Court of Canada and this (com- 
 mittee on Appeal declared an enactment of the Legisla- 
 ture of Manitoba relating to education to be intra vire.s, 
 and the Governor-General in Council on an appeal to 
 him considered it nltm n'rcs, what would happen ? If 
 the Provincial Legislature deolisied to yield to his viow, 
 as would almost certainly and most naturally be the 
 case, recourse could only be had to the Parliament of 
 the Dominion. But the Parliament of Canada is only 
 empowered to legislate as far as the circumstances ol 
 the case re([uire " for the due execution of the pro- 
 " visions " of the 22nd section. If it were to legislate in 
 such a case as has been supposed, its legislation would 
 necessarily be declared ultra vires by the Conrts which 
 had decided that the provisions of the section had not 
 been violated by the Legislature of tlie Province. If, on 
 the other hand, the Governor-General declared a Pro- 
 vincial law to be intra vires, it would be an ineffectual 
 declaration. It could only be made effectual by the 
 action of the Courts, which would have for themselves 
 to determine the (question which he decided, and, if they 
 arrived at a different coTiclnsion and pronounced the 
 enactment ultra vires ^ it would be none the less nuU and 
 
Manitoba Sciiooi. Cask, 1894. 
 
 276 
 
 iHt tlUH 
 
 In the 
 
 ision to 
 
 pHlativo 
 
 its pro- 
 
 oviiu'ial 
 
 WllH HO 
 ll)t WilH 
 
 'lent, in 
 ■section, 
 iwions of 
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 ic juris- 
 IT."" It 
 bio it is 
 icurrent 
 Council, 
 arise, if 
 If, for 
 Ih (Joni- 
 Lcgisla- 
 ra vires, 
 ppeal to 
 en ? If 
 is \iew, 
 
 be the 
 nent of 
 is only 
 tincos ol 
 ho pro- 
 islate in 
 would 
 8 which 
 had not 
 If, on 
 1 a Pro- 
 sffectual 
 
 by the 
 niselves 
 , if they 
 iced the 
 Quil and 
 
 \ 
 
 void bocaUHt; the Governor-Cloneral in (council had de- 
 clared it intrtt riven. ThoH(> oonHidcu'ations are of tluMii- 
 selvoH most c();.';ent to show that the 2nd Hul)-se('tion ought 
 not to be constnu'd as giving to j)arti('s ag'^rieved an 
 appeal to tlie Cjovernor-Ueneral in (Council concurri'ntly 
 with tlierig'httoresort to the (.ourts in case the provisions 
 of the 1st Hiib-section are contraveJied, unless no other 
 construction ofthe Sid;-sectionH be reasonably j»ossible. 
 The natures of the reiMr(ly,t<»o, which the .'inl Sid)"Section 
 ])^()vides. for enlbrcing' the decision of the (rovernor- 
 General, stronn-jy confirms this view. That remedy is 
 cither a Provincial law or a law passed by the Parlia- 
 ment of (.'anada. What would be the utility olpassini^'a 
 law for the purpose merely of annulling; an enactment 
 which the ordinary tribunals would without It^gislation 
 declare to bo nidi, and to which tluiv would refuse togivo 
 effect ? Such legisliition would indeed be futile. 
 
 So far the matter has been dealt with apart from an 
 examination of the terms of the 2nd Sub-section itself. 
 Th(^ considerations advia'ted to would seem tojustify any 
 ])Ossibl(? construction of that Sub-sec^tiou whi(!h would 
 avoid the consequences pointed out. Hut when its lan- 
 guage is examined, so far from presiuiting any difficul- 
 ties, it greatly strengthens the conclusion suggc^stod by 
 the other parts ol" the section. The first Sub-section is 
 confined to a right or privilege of a " class of persons " 
 with respect to denominational education " at the Union," 
 the 2nd Sub-section applies to laws affecting a right or 
 privilege "of the Protestant or Roman Catholic minority" 
 in relation to education. If the object of the 2nd Sub- 
 section had been that contended for by the Respondent, 
 the natural and obvious mode of expressing such inten- 
 tion would have been to authorise an appeal from any 
 Act of the Provincial Legislature affecting "any such 
 right or privilege as aforesaid." The limiting words " at 
 the Union " are however omitted, for the expression " any 
 class of persons ." there is substituted " the Protestant or 
 Roman Catholic minority of the Queen's subjects," and 
 instead of the words " with respect to denominational 
 schools," the wider term " in relation to education " is 
 used, 
 
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276 
 
 Manitoba IScbool Case, 1894. 
 
 f'li 
 
 '1^' 
 
 The Ist Sub-seclion invalidates a law afteciing preju- 
 dicially the right or pri/ilege of "any class " of persons, 
 the 2nd Sub-section gives an appeal only where the 
 right or privilege affected is that of the " Protestant or 
 Roman Catholic " minority." Any class of the majority 
 is clearly within the per view of the 1st Sub-section, but 
 it seems equally clear that no class of the Protestant or 
 Catholic majority would have a locus standi to appeal 
 under the 2nd Sub-section, because its rights or privileges 
 had been affected. Moreover to bring a case within that 
 Sub-section it would be essential to show that a right 
 or privilege had been " affected." Could this be said to 
 be the case because a void law had been passed which 
 purported to do something but was wholly ineffectual ? 
 To prohibit a particular enactment and render it ultra 
 vires surely prevents its affecting any rights. 
 
 It would do violence to sound canons of construction 
 if the same meaning were to be attributed to the very 
 different language employed in the two Sub-sections. 
 
 In their Lordships' opinion the 2nd Sub-section is a 
 substantive enactment, and is not designed merely as a 
 meims of enforcing the provision which precedes it. 
 The question then arises, does the Sub-section extend 
 to rights and privileges acquired by legislation subse- 
 quent to the Union ? It extends in terms to " any " right 
 or privilege of the minority affected by an Act passed by 
 the Legislature, and would therefore seem to embrace all 
 rights and privileges existing at the time when such Act 
 was passed. Their Lordships see no justification for 
 putting a limitation on language thus unlimited. 
 There is nothing in the surrounding circumstances, 
 or in the apparent intention of the Legislature, to 
 warrant any such limitation. Quite the contrary. 
 It was urged that it would be strange if an appeal lay to the 
 Governor-General in Council against an Act passed by 
 the Provincial Legislature because it abrogated rights 
 conferred by previous legislation, whilst, if there had 
 been no previous legislation, the Acts complained of 
 would not only have been intra vires but. could not have 
 afforded ground for any appeal. There is no doubt force 
 in this argument, but it admits, their Lordships think, 
 of an answer. 
 
 Those who were stipulating for the provisions of 
 
 C 
 
Manitoba School Case, 1894. 
 
 277 
 
 to 
 
 ( 
 
 section 22 as a condition of the Union, and tliose who 
 gave tlioir legislative assent to the Act by which it was 
 brought about, had in view the perils then apprehended. 
 The immediate adoption by the Legislature ot" an educa- 
 tional system obnoxious either to Catholics or Protestants 
 would not be contompUited as possible. As has been 
 already stated, the Roman Catholics and Protestants in 
 the Province were about equal in number. It was im- 
 possible at that time for either party to obtain legislative 
 sanction to a scheme of education obnoxious to tlie other. 
 The establishment of a system of public ediication in 
 which both parties would concur was probably then in 
 immediate prospect. The Legislature of Manitoba first 
 met on the 15th of March 1871. On the 3rd of May 
 following the PMucation Act of 1871 received the Royal 
 Assent. But the future was uncertain. Either Roman 
 Catholics or Protestants might become the preponderating 
 power in the Legislature, and it might under such con- 
 ditions be impossible for the minority to prevcmt the 
 creation at the public cost of schools which, though 
 acceptable to the majority, could only be taken advantage 
 of by the minority on the terms of sacrificing their 
 cherished convictions. The change to a Roman Catholic 
 system of public schools would have been regarded with 
 as much distate by the Protestants of the Province as 
 the change to an un sectarian system was by the Catholics. 
 
 Whether this explanation be the correct one or not, 
 their Lordships do not think that the difficulty suggested 
 is a sufficient warrant for departing from the plain 
 meaning of the words of the enactment, or for refusing 
 to adopt the construction which apart from this objection 
 would seem to be the right one. 
 
 Their Lordships being of opinion that the enactment 
 which governs the present case is the 22nd section of 
 the Manitoba Act, it is unnecessary to refer at any length 
 to the arguments derived from the provisions of section 
 93 of the British North America Act. But in so far as 
 they throw light on the matter they do not in their Lord- 
 ships' opinion weaken, but rather strengthen the views 
 derived from a studv of the later enactment. It is ad- 
 mitted that the 3rd and 4th sub-sections of section 93 
 (the latter of which is, as has been observed, identical 
 with sub-section 3 of section 22 of the Manitoba Act) 
 
278 
 
 Manitoba School Case, 1894. 
 
 ! '^,1 
 
 T -fi 
 
 were not intended to have effect merely when a Pro- 
 vincial Legislature had exceeded the limit imposed on 
 its powers Ly sub-section 1, for subsection 3 gives an 
 appeal to the Governor-General, not only where a system 
 of separate or dissentient schools existed in a Province 
 at the time of the Union, but also where in any Province 
 such a system was " thereafter established by the Legis- 
 " lature of the Province." It is manifest ihat this relates 
 to a state of things created by post-Union legislation. 
 It was said it refers only to acts or decisions of a " Pro- 
 " vincial authority," and not to acts of a Provincial 
 Legislature. It is unnecessary to determine this point, 
 but their Lordships must express their dissent from the 
 argument that the insertion of the words " of the Legis- 
 " lature of the Province" in the Manitoba Act show 
 that in the British North America Act it could not 
 have been intended to comprehend the Legislatures under 
 the words "any Provincial authority." Whether they be 
 so comprehended or not has no bearing on the point 
 immediately under discussion. 
 
 It was argued that the omission from the 2nd sub- 
 section of section 22 of the Manitoba Act of any reference 
 to a system of separate or dissentient schools " thereafter 
 established by the Legislature of the Province " was 
 unfavourable to the contention of the Appellants. This 
 argimient met with some favour in the Court below. If the 
 words with which the third sub-section of section 93 com- 
 mences had been found in sub-section 2 of section 22 of the 
 Manitoba Act, the omission of the following words would 
 no doubt have been important. But the reason for the 
 difference between the subsections is manifest. At the 
 time the Dominion Act was passed a system of denom- 
 ational schools adapted to the demands of the minority 
 existed in some Provinces, in others it might thereafter 
 be established by legislation, whilst in Manitoba in 1870 
 no such system was in operation, and it could only come 
 into existence by being " thereafter established.' The 
 words which preface the right of ajjpeal in the Act 
 creating the Dominion would therefore have been quite 
 inappropriate in the Act by which Manitoba became a 
 Province of the Dominion. But t he terms of the critical sub- 
 section of that Act are, as has been shown, quite general, 
 and not made subject to any condition or limitation. 
 
 C 
 
 { 
 
PlO- 
 
 Legis- 
 show 
 
 was 
 This 
 
 ( 
 
 Manitoba School Cahe, 1894. 
 
 279 
 
 lioforo loavino; this part, of the case, it may be well to 
 notice; the argument urged by the Respondent that the 
 construction which their Lordships have put upon the 
 2nd and 3rd sub-soctions of section 22 oF the Manitoba 
 Act is inconsistent with the power conferred upon the 
 Legislature of tlie Province to " exclusively make laws 
 in relation to education." The argument is fallacious. 
 The poAver conferred is not absolute but limited, ft is 
 exercisable only " subject and according to the follow- 
 ing provisions.' The sub-sections which follow, there- 
 fore, whatever Im their true construction, define the con- 
 ditions under which alone the Provincial Ijogislature may 
 legislate in relation to education, and indicate the liun- 
 tations imposed on, and the exceptions from, their power 
 of exclusive legislation. Their right to legislate is not 
 indeed, properly speaking, exclusive, for in the case 
 sjiecified in sub-section 3 the Parliament of Canada is 
 authorised to legislate on the same subject. There is 
 therefore no such inconsistency as was suggested. 
 
 The learned Chief Justice of the Suj^reme Court was 
 much pressed by the consideration that there is an in- 
 herent right in a Legislature to repeal its own legislative 
 acts and that " every presumption must be made in 
 favour of the constitutional right of a legislative body 
 to repeal the laws which it has itself enacted." He 
 returns to this point more than once in the course of his 
 judgment, and lays down as a maxim of constitutional 
 construction that an inherent right to do so cannot be 
 deemed to be withheld from a legislative body having 
 its origin in a written constitution, unless the constitution 
 in express words takes away the right, and he states it 
 as his opinion that in construing the Manitoba Act the 
 Court ought to proceed on this principle, and to hold 
 the Legislature? of that Province to have absolute powers 
 over its own legislation, untrammelled by any appeal to 
 federal authority, unless it could find some restriction of 
 its rights in that respect in express terms in the Consti- 
 tutional Act. 
 
 Their Lordships are unable to concur in the view that 
 there is any presumption which ought to in fluence the mind 
 one way or the other. It must be remembered that the 
 Provincial Legislature is not in all respects supreme within 
 
280 
 
 Manitoba School Case, 1894. 
 
 tlio Province. Tts legiHlativo power is strictly limited. It 
 can deal only with matters declared to be within its 
 cognizance by the? P)ritisli North America Act as varied 
 by the Manitoba Act. In all other cases legislative 
 authority rests with the Dominion Parliament. In 
 relation to the subjects speciiied in section 92 of the 
 British North America Act, and not falling within those 
 set forth in section 91, the exclusive power of the Pro- 
 vincial Legislature may be said to be absolute. But 
 this is not so as regards education, which is separately 
 dealt with and has its own code both in the British 
 North America Act and in the Manitoba Act. It may be 
 said to be anomalous and such a restriction as that in 
 question should be imposed on the free action of a 
 Legislature, but is it more anomalous than to grant to a 
 minority who are .aggrieved by legislation an appeal 
 from the Legislature to the Executive Aut hority ? And 
 yet this right is expressly and beyond all controversy 
 conferred. If, upon the natural construction of the 
 language used, it should appear that an appeal was 
 permitted imder circumstances involving a fetter upon 
 the power of a Provincial Legislature to repeal its own 
 enactments, their Lordships see no justification for a 
 leaning against that construction, nor do they think it 
 makes any difference whether the fetter is imposed by 
 express words or by necessary implication. 
 
 In truth, however, to determine that an appeal lies to 
 the Governor-General in Council in such a case as the 
 present does not involve the proposition that the Pro- 
 vincial Legislature was unable to repeal the laws which 
 it had passed. The validity of the repealing Act is not 
 now in question, nor that it was effectual. If the 
 decision bo favourable to the Appellants the consequence, 
 as will be pointed out presently, will by no means 
 necessarily be the repeal of the Acts of 1890 or the re- 
 enactment of the prior legislation. 
 
 Bearing in mind the circumstances which existed in 
 1870 it does not appear to their Lordships an extravagant 
 notion that in creating a Legislature for the Province 
 with limited powers it should have been thought ex- 
 pedient, in case either Catholics or Protestants became 
 preponderant, and rights which had come into exist(^nce 
 
 , 
 
 i 
 
Manitoba School Case, 1894. 
 
 281 
 
 imdor differont circumstances were interfered with, to 
 give the Dominion Piirliament power to legislate upon 
 matters of education so far as was necessary to protect 
 the Protestant or Catholic minority as the case might bo. 
 
 Taking it then to be established that the 2nd sub- 
 section of section 22 of the Manitoba Act extends to 
 rights and privileges of the Roman Catholic minority 
 acquired by legislation in the Province after the Union, 
 the next (juostion is whether any such right or privilege 
 has been affected by the Acts of 1890 ? In order to 
 answer this question it will be necessary to examine 
 somewhat more closely than has hitherto been done the 
 system established by the earlier legislation as well as 
 the change effected by those Acts. 
 
 The Manitoba School Act of 1871 provided for a 
 Board of Education of not less than 10 nor more than 14 
 members, of whom one-half were to be Protestants and 
 the other half Catholics. The two sections of the Board 
 might meet at any time separately. P^ach section was 
 to choose a chairman, and to have ur»der its control and 
 management the discipline of the schools of the section. 
 One of the Protestant members was t') be appointed 
 Superintendent of the Protestant schools, and one of the 
 Catholic members Superintendent of the Catholic 
 L'chools, and these two were to be the joint secretaries of 
 the Board, which was to select the books to be used 
 in the schools, except those having reference to religion 
 or morals which were to be proscribed by the sections 
 respectively. The legislative grant for common school 
 education was to be appropriated, one moiety to support 
 the Protestant, the other moiety the Catholic schools. 
 Certain districts in which the population was mainly 
 Catholic were to be considered Catholic school districts, 
 and certain other districts where the population was 
 mainly Protestant were to be considered Protestant school 
 districts. El very year a meeting of the male inhabitants 
 of each district, summoned by the Superintendent of the 
 section to which the district belonged, was to appoint 
 trustees, and to decide whether their contributions to the 
 support of the school were to be raised by subscription, 
 by a collection of a rate per scholar, or by assessment on 
 the property of the district. They might also decide to 
 
282 
 
 Manitoba School Cask, 1894. 
 
 erect a school house, and that the cost of it should ho 
 raised hy assessinc^nt. In case the father or guardian of 
 a school child was a Protestant in a Catholic district or 
 vice verm, he might send tlu^ child to the school of the 
 nearest district of tlu^ other section, and in case h(^ con- 
 tributed to the school the chiUl attended a sum equal to 
 what he would have been bound to pay if he had 
 bekmged to that district, he was exempt from payment 
 to the school of the district in which ho lived. 
 
 Acts amending the education law in some respects 
 were passed in subsequent years, but it is not necessary 
 to refer to them, as in 1881 the Act of 1871 and these 
 amending Acts were repealed. The Manitoba School 
 Act 1881 followed the same general lines as that of 1871. 
 The number of the lioard of Education was hxed at not 
 more than 21 of whom 12 were to be Protestants and 9 
 Catholics. If a less number were appointed the same 
 relative proportion was to be observed. The Board as 
 before was to resolve itself into two sections, Protestant 
 and Catholic, each of which was to have the control of 
 the schools of its section, and all the books to be used in 
 the schools under its control were now to be selected by 
 each section. There were to be as before a Protestant 
 and a Catholic Superintendent. It was provided that the 
 establishment of a school district of one denomination 
 should not prevent the establishment of a school district 
 of the other denomination in the same place, and that a 
 Protestant and Catholic district might include the same 
 territory in whole or in part. The sum appropriated by 
 the Legislature for common school piu'poses was to be 
 divided between the Protestant and Roman Catholic 
 sections of the Board in proportion to the number of 
 children between the ages of five and fifteen residing in 
 the various Protestant and Roman Catholic school 
 districts in the Province where schools were in opera- 
 tion. With regard to local assessments for school pur- 
 poses it was provided that the ratepayers of a school 
 district should pay 'their respective assessments to the 
 schools of their respective denominations, and in no case 
 was a Protestant ratepayer to be obliged to pay for a 
 Catholic school, or a Catholic ratepayer for a Protestant 
 school. 
 
Manitoba School Cask, 1894. 
 
 283 
 
 1 bo 
 an of 
 ot or 
 ■ the 
 coii- 
 il to 
 liad 
 mont 
 
 iiese 
 
 \\( 
 
 Tlio seliomo embodied in this Act waH niodiliod in 
 Bonio of itH dulailH by later Ada of the Le^-iHlature, but 
 they did not alfee^ in Hubstanee the main featiirea, to 
 whieli attention lias been callt'd. While traeen of the 
 increase of the Protestant relatively to the Catholic 
 population may be seen in the course which le^'islation 
 took, the position of the Catholic and Protestant portions 
 of the community in relation to education was not sub- 
 stantially altercnl, though the State aid whieli at tlui outset 
 was divided e(|ually between them had of course to bo 
 adjusted and nuule proportionate to the school population 
 which each supplied. 
 
 Their Lordships pass now to the Department of Educa- 
 tion and Public Schools Acts of 181)0 which ceruiinly 
 wrought a great change. Under the former of those 
 Roman Catholics were not entitled as such to any repre- 
 sentation on the IJoard of Education or on the Advisory 
 Board, which was to authorise t(^\t books for the use of 
 pupils and to prescribe the forms of religious exercises 
 to be used in schools. All Protestant and Catholic 
 school districts were to be subject to the provisions of 
 the Public Schools Act. The public schools were all to 
 be free, .and to be entirely non-sectarian. No religious 
 exercises were to be allowed unless conducted according 
 ^j the regulations of the Advisory Board, and with the 
 authority of tlu^ school trustees for the district. It was made 
 the duty of the trustees to take possession of all public 
 school property which had been accpiired or given for public 
 school purposes in the district. The Municipal Council of 
 every city, town, and village was directed to levy and 
 collect upon the taxable property within the Munici- 
 pality such sums as might be rei^uired by the j)ublic 
 school trustees for school purposes. No Municipal 
 Council was to have the right to exempt any property 
 whatever from school taxation. And it was expressly 
 enacted that any school not conducted according to all 
 the provisions of the Act, or the regulations of the 
 Department of Education, or the Advisory Board, should 
 not be deemed a public school within the meaning of 
 the law, and that such school should not participate in 
 the Legislative grant. 
 
 With the policy of these Acts their Lordships are not 
 
284 
 
 Manitoma School Case, 1894. 
 
 '^ 
 
 ('oncornod, nor witli tlio roaHoiiH vvliioh led to ilioir en- 
 act iiiDiii. It may bo iliat aH the popnialion of ihv Pro- 
 viiico l)ocanui in j)roj)oi'tion more lar^'oly ProtcHtant, it 
 waH found increasingly ditficull, especially in sparsely 
 populated districts, to work the system inaugurated in 
 1871, even with the modiiications introduced in later 
 years. lUit, whether this bi' so or not is innnat(>rial. 
 The sole (piestion to be determined is whether a ri^ht 
 or privilege which the Roman Catliolie minority pre- 
 viously enjoyed has been affected ])y the lef^'islation of 
 1890. Their Lordships are unable to see how this 
 question can receive any but an affirmative answer. 
 Contrast the position of the Uoman Catholics prior and 
 subsequent to the Acts from which they appeal. IJeforo 
 these passed into law there existed denominational 
 schools, of which the control and management 
 were in the hands of Roman Catholics, who 
 could select the books to be used and determine the 
 character of the religious teaching. These schools 
 received their proportionate share of the money contri- 
 buted for school purposes out of the general taxation of 
 the Province, and the money raised for these purposes 
 by local assessment was, so far as it fell upon Catholics, 
 applied only towards the support of Catholic schools. 
 What is the position of the lioman Catholic minority 
 under the Acts of 1890? Schools of their own denomina- 
 tion, conducted according to their views, will receive no 
 aid from the State. They must depend entirely for their 
 support upon the contributions of the Roman Catholic 
 community, while the taxes out of which State aid is 
 granted to the schools provided for by the Statute fall 
 alike on Catholics and Protestants. Moreover, while the 
 Catholic inhabitants remain liable to local assessment for 
 school purposes, the proceeds of that assessment are no 
 longer destined to any extent for the support of Catholic 
 schools, but afford the means of maintaining schools 
 which they regard as no more suitable for the education 
 of Catholic children than if they were distinctively 
 Protestant in their character. 
 
 In view of this comparison it does not seem possible 
 to say that the rights and privileges of the Roman 
 Catholic minority in relation to education which existed 
 prior to 1890 have not been affected. 
 
Manitoua School Cask, 1894. 
 
 286 
 
 f 
 1 
 
 ( 
 
 Mr. JuKtic'o TiiHclioroati HjiyH lluit \\w lo^inhition of 
 1890, having IxM'n irrovoc!il)ly lield to bo mtra rfres, 
 ciinnot liiivo " illo^-ally " airocted any of tlio ri^litH and 
 privilii^i'OH of tliu Catholic minority. I5iit llio word 
 " ill(^<;'ally " lias no ])iaco in the Hub-H(!(;tion in ([ucstion. 
 Th(! aj)[H'ai is o-iven if tlio ri<;'htH aro in fact afl'cctod. 
 
 Jt is Irut" that the n^ii^'ioiiH oxcrcisi^s nroscrihod for 
 public schools aro not to b(^ distinctively Protestant, for 
 they aro to bo '' non-soctarian," and any j)aront may 
 withdraw his child from them, 'i'heni may bo many 
 too who bharc thu viow exprcHHod in om; of the allidavits 
 in Jiarrctf.s case, that there should not be any conseicni- 
 tious objections on the part of Roman Catholics to attend 
 such schools, if adequate means be provided elsewhere 
 ofg^/ingsuch moral and religious training as may be 
 desired. JUit all this is not to the purpose. As a matter 
 of fact the objection of Roman Catholics to schools such 
 as alone receive State aid under the Act of 181)0 is con- 
 scientious and deeply rooted. If this had not been so, if 
 there had been a system of public education acceptable 
 to Catholics and Protestants alike, the elaborate enact- 
 ments which have been the subject of so much contro- 
 versy and consideration wouhl liave been unnecessary. 
 Itisnotorious that there were acute differences of opinion 
 between Catholics and Protestants on the education 
 question prior to 1870. This is recognised and empha- 
 sised in .almost every line of those enactments. There 
 is no doubt either what the points of difference were, 
 and it is in the light of these that the 22nd Section of 
 the Manitoba Act of 1870, which was in truth a Parlia- 
 mentary compact, must be read. 
 
 For the reasons which have boon given their Lord- 
 ships are of opinion that the 2nd sub-section of section 
 22 of the Manitoba Act is the governing enactment, and 
 that the appeal to the Governor-Gentu'al in Council was 
 admissible by virtue of that enactment, on the grounds 
 set forth in the memorials and petitions, in.'ismuch as the 
 Acts of 1890 affected rights or privilt;ges of the Roman 
 Catholic minority in relation to education within the 
 meaning of that Sub-section. The further question is 
 submitted whether the Governor-General in Council has 
 power to make the declarations or remedial orders asked 
 
286 
 
 1/ 
 
 Manitora School Cabk, 1894. 
 
 for in tlio inomorialH or potitioiiH, or Iuih any otlnir luriH- 
 
 ii)H ' 
 tlmt the Govcrnor-Gonorul in ('oiincil liaH juriHcliction, 
 
 diction in tlio prcniiHCH. Tlicir JjordHliipH have di'cidod 
 
 r 
 
 ha 
 
 and that llio appeal \h well founded, but th(^ ])articuhir 
 courHo to bo ])urHUod luuHt lu^ (hstorniinod by tlio 
 authoritieH to whom it liaH been counnitted by tho 
 Statute. It Ih not for this tribunal to intimates the preeiHo 
 HtepH to be taken. Their g'eneral character Ih HufHeiently 
 dohned by the 3rd Sul) Huction of Section 22 of tho 
 Manitoba Act. 
 
 It iH certainly Tiot essential that tho Statutes repealed 
 by tho Act of 1890 should be re-enacted, or that tho 
 precise provisions of these Statutes should again ))e niado 
 law. The system of education embodied in the Acts of 
 1890 no doubt commends itself to, and adiKiuately 
 supplies the wants of tho great majority of the inhabitants 
 of the Province. All legitimate ground of complaint 
 would be removed if that system were supplemented by 
 provisions which would remove the grievance upon 
 which the appeal is founded, and were modified so far as 
 might be necessary to give effect to these provisions. 
 
 Their Lordship will humbly advise Her Majesty that 
 the questions submitted should be answered in the manner 
 indicated by the views which they have expressed. 
 
 There wdl be no costs of this appeal. 
 
 :i 
 
otluT juriH- 
 ivo (Icf'idotl 
 iuriHdictioii, 
 
 particular 
 wl by tho 
 0(1 hy tho 
 ' tho prcciHo 
 
 Hutlicicntly 
 
 1 22 of tho 
 
 )8 rope.'iled 
 Y that tho 
 tin bo mado 
 be Acts of 
 adomiatoly 
 iidiabitants 
 complaint 
 iinontod by 
 [iTico upon 
 ed 80 fill as 
 visions, 
 ijesty that 
 ho manner 
 issed.