In Re Statutes of Manitoba relating to Education

In Re Statutes of Manitoba relating to Education
Collection
Supreme Court Judgments
Date
1894-02-20
Report
(1894) 22 SCR 577
Judges
King, George Edwin; Gwynne, John Wellington; Taschereau, Henri-Elzéar; Fournier, Télesphore
On appeal from
Federal Court of Appeal
Subjects
Statutes
Decision Content
Supreme Court of Canada
In re Certain Statutes of the Province of Manitoba relating to Education (1894) 22 SCR 577
Date: 1894-02-20
IN RE CERTAIN STATUTES OF THE PROVINCE OF MANITOBA RELATING TO EDUCATION.
1893: Oct. 17; 1894: Feb. 20.
SPECIAL CASE REFERRED BY THE GOVERNOR GENERAL IN COUNCIL.
Manitoba Constitutional Act—33 Vic., ch. 3, sec. 22, subsec. 2—Powers of Provincial Legislature in matters of education—Rights and privileges—Legislative power to repeal previous statutes—Right of appeal to Governor General in Council—B. N. A. Act, 1867, sec. 93 subsec. 3.
Sec. 22 of the Manitoba Act, 33 Vic. ch. 3 (D.) enacts: In and for the province the said legislature may exclusively make laws in relation to education, subject and according to the following provisions:—
(1.) Nothing in any such law shall 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.
(2.) 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.
Subsection 3 of sec. 93 of the British North America Act, 1867, enacts: (3.) Where in any province a system of separate or dissentient schools exists by law at the union, or it is thereafter established by the legislature of the province, an appeal shall lie to the Governor General in Council from any Act or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education.
By certain statutes of the Province of Manitoba, relating to education, passed in 1871 and subsequent years, the Catholic minority of Manitoba enjoyed up to 1890 the immunity of being taxed for other schools than their own, &c., &c., but by the Public Schools Act, 53 Vic. ch. 38 (1890), these acts were repealed and the Roman Catholics were made liable by assessment for the public schools which are non-denominational, but were left free to send their 37 children to the public schools. On a petition and memorials sent to the Governor General in Council by the Catholic minority, alleging that rights and privileges in the matter of education secured to them since the union had been affected, and praying for relief under subsecs. 2 and 3 of sec. 22 of the Manitoba Act, 1871 a special case was submitted to the Supreme Court of Canada, and it was held:
1. That the said rights and privileges in the matter of education, being rights and privileges which the Legislature of Manitoba had itself created, and there being no clear express and unequivocal words in sec. 22 of the Manitoba Act, 1871, restricting the constitutional right of the legislature of the Province to repeal the laws it might itself enact in relation to education, no right of appeal lies to the Governor General in Council as claimed either under subsec. 2 of sec. 22 of the Manitoba Act, or subsec. 3 of sec. 93 of the British North America Act, 1867. Fournier and King JJ. contra.
2. That the right of appeal given by subsec. 2 of sec. 22 of the Manitoba Act is only from an act or decision of the legislature which might affect any rights or privileges existing at the time of union as mentioned in subsec. 1, or of any provincial executive or administrative authorities affecting any right or privilege existing at the time of the union. Fournier and King JJ. dissenting.
Per Taschereau and Gwynne JJ., that the decision in Barrett v. Winnipeg ([1892] A. C. 443), disposes of and concludes the present application.
Quœre—Per Taschereau J.—Is section 4 of 54 & 55 Vic. ch. 25, which purports to authorize such a reference for hearing "or" consideration, intra vires of the Parliament of Canada?
Special Case referred by the Governor General in Council to the Supreme Court of Canada for hearing and consideration, pursuant to the provisions of "An Act respecting the Supreme and Exchequer Courts," Revised Statutes of Canada, chapter 135, as amended by 54 & 55 Vic., chap. 25, sec. 4.
The special case referred was as follows:—
[2103]
Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor General in Council, on the 31st July, 1893.
On a report dated 20th of July, 1893, from the Acting Minister of Justice, submitting with reference to his report of the 7th July, inst., which was approved on the 8th July, 1893, a case for reference to the Supreme Court of Canada, touching certain statutes of the province of Manitoba relating to education and the memorials of certain persons complaining thereof.
The Minister recommends that the case, a copy of which is appended to the above-mentioned Order in Council, be referred to the Supreme Court of Canada for hearing and consideration, pursuant to the provisions of an Act respecting the Supreme and Exchequer Courts, Revised Statutes, Canada, chap. 135, as amended by 54-55 Vic., chap. 25, sec. 4.
The Committee submit the same for Your Excellency's approval.
JOHN J. McGEE,
Clerk of the Privy Council.
[1990]
Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor General in Council, on the 8th July, 1893.
On a report dated 7th July, 1893, from the Acting Minister of Justice, submitting that in conformity with an order of Your Excellency in Council, dated 22nd April, 1893, a draft case prepared for reference to the Supreme Court of Canada, touching certain statutes of the province of Manitoba relating to education, and the memorials of certain petitioners in Manitoba complaining thereof, was communicated to the Lieutenant-governor of Manitoba, and to Mr. John S. Ewart, Q.C., counsel for the petitioners, for such suggestions and observations as they might respectively desire to make in relation to such case, and the questions which should be embraced therein. No reply has been received from the Lieutenant-governor of Manitoba. Mr. Ewart, under date 4th May, 1893, has made certain observations and suggestions which he, the Minister, has had under consideration. The Minister, upon such consideration, has made some amendments to the draft case, which he submits for Your Excellency's approval.
The minister recommends that the case as amended, a copy of which is herewith submitted, be approved by Your Excellency, and that copies thereof be transmitted to the Lieutenant-governor of Manitoba and to Mr. Ewart, with the information that the same is the case which it is proposed to refer to the Supreme Court of Canada touching the statutes and memorials above referred to.
The Committee submit the same for Your Excellency's approval.
JOHN J. McGEE,
Clerk of the Privy Councit.
CASE.
Annexed hereto is an order of His Excellency the Governor General in Council, made on the 29th December, 1892, approving of a report of a sub-Committee of Council thereto annexed upon certain memorials complaining of two statutes of the Legislature of Manitoba, relating to education, passed in the session of 1890. The memorials therein referred to, and all correspondence in connection therewith, are hereby made part of this case, together with all statutes, whether Provincial, Dominion, or Imperial, in any wise dealing with, or affecting the subject of education in Manitoba, and all proceedings had or taken before the Court of Queen's Bench, Manitoba, the Supreme Court of Canada, and the Judicial Committee of the Privy Council in the causes of Barrett v. the City of Winnipeg, and Logan v. the City of Winnipeg; and all decisions or judgments in such cases are to be considered as part of this case and are to be referred to accordingly. The questions for hearing and consideration by the Supreme Court of Canada being the same as those indicated in the report of the Sub-Committee of Council above referred to, are as follows:—
(1.) 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 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 Privy 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 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 1890, complained of in the said petitions and memorials?
(4.) Does subsection 3 of section 93 of the British North America Act, 1867, apply to Manitoba?
(5.) Has His Excellency 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 Excellency the Governor General in Council any other jurisdiction in the premises?
(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 subsection 2 of section 22 of the Manitoba Act, or establish a "system of separate and dissentient schools within the meaning of subsection 3 of section 93 of 'the British 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 them, affect any right or privilege of the minority in such a manner that an appeal will lie thereunder to the Governor General in Council?
Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor General in Council on the 29th of December, 1892.
The Committee of the Privy Council have had under consideration a report, hereto annexed, from a sub-committee of Council, to whom where referred certain memorials to Your Excellency, complaining of two statutes of the Legislature of Manitoba, relating to education, passed in the session of 1890.
The Committee, concurring in the report of the subcommittee, submit the same for Your Excellency's approval, and recommend that Saturday, the 21 st day of January, 1893, at the chamber of the Privy Council, at Ottawa, be fixed as the day on which the parties concerned shall be heard with regard to the appeal in the matter of the said statutes.
The Committee further advise that a copy of this minute, if approved, together with a copy of the report of the sub-committee of Council, be transmitted to the Lieutenant-governor of Manitoba.
JOHN J. McGEE,
Clerk of the Privy Council.
To His Excellency the Governor General in Council:—
The sub-committee to whom were referred certain memorials, addressed to Your Excellency in Council, complaining of two statutes of the Legislature of Manitoba, relating to education, passed in the session of 1890, have the honor to make the following report:
The first of these memorials is from the officers and executive committee of the "National Congress," an organization which seems to have been established in June, 1890, in Manitoba.
This memorial sets forth that two Acts of the Legislature of Manitoba, passed in 1890, intituled respectively, "An Act respecting the Department of Education" and "An Act respecting Public Schools," deprive the Roman Catholic minority in Manitoba of rights and privileges which they enjoyed with regard to education previous to the establishment of the province, and since that time down to the passing of the Acts aforesaid, of 1890.
The memorial calls attention to the fact that soon after the passage of those Acts, (and in the year 1891) a petition was presented to Your Excellency, signed by a large number of the Roman Catholic inhabitants of Manitoba, praying that Your Excellency might entertain an appeal on behalf of the Roman Catholic minority against the said Acts, and that it might be declared "that such Acts had a prejudicial effect on the rights and privileges, with regard to denominational schools, which the Roman Catholics had, by law or practice, in the province, at the union;" also that directions might be given and provision made in the premises for the relief of the Roman Catholics of the Province of Manitoba.
The memorial of the "National Congress" recites, at length, the allegations of the petition last hereinbefore referred to, as having been laid before Your Excellency in 1891. The substance of those allegations seems to be the following: That, before the passage of the Act constituting the Province of Manitoba, known as the "Manitoba Act," there existed, in the territory now constituting the province, a number of effective schools for children, which schools were denominational, some of them being erected and controlled by the authorities of the Roman Catholic Church, and others by the authorities of various Protestant denominations; that those schools were supported, to some extent by fees, and also by assistance from the funds contributed by the members of the church or denomination under whose care the school was established; that at that period the Roman Catholics had no interest in or control over the schools of Protestant denominations, nor had Protestants any interest in or control over the schools of Roman Catholics; that there were no public schools in the province, in the sense of State schools; that members of the Roman Catholic Church supported schools for their own children and for the benefit of Roman Catholic children, and were not under obligations to contribute to the support of any other schools.
The petition then asserted that, in consequence of this state of affairs, the Roman Catholics were separate from the rest of the community, in the matter of education, at the time of the passage of the Manitoba Act.
Reference is then made to the provisions of the Manitoba Act by which the legislature was restricted from making any law on the subject of education which should have a prejudicial effect on the rights and privileges, with respect to denominational schools, "which any class of persons had, by law or practice, in the province at the "'union.'"
The petition then set forth that, during the first session of the Legislative Assembly of the Province of Manitoba, an Act was passed relating to education, the effect of which was to continue to the Roman Catholics the separate condition, with reference to education, which they had enjoyed previous to the union; and that ever since that time, until the session of 1890, no attempt was made to encroach upon the rights of the Roman Catholics in that regard; but that the two statutes referred to, passed in the session of 1890, had the effect of depriving the Roman Catholics altogether of their separate condition with regard to education, and merged their schools with those of the Protestant denominations, as they required all members of the community, whether Roman Catholic or Protestant, to contribute to the support of what were therein called "Public Schools," but what would be, the petitioners alleged, in reality a continuation of the Protestant schools.
After setting forth the objections which Roman Catholics entertain to such a system of education as was established by the Acts of 1890, the petitioners declared that they appealed from the acts complained of and they presented the prayer for redress which is hereinbefore recited.
The petition of the "Congress" then sets forth the minute of Council, approved by Your Excellency 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 intimated that those statutes would probably be held to be ultra vires of the legislature of Manitoba if they were found to have prejudicially affected "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." 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 or 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 1890) had "prejudicially affected" such "right or privilege." The report set 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 vires. 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 protection of the rights of a minority against legislation (within the competence of the legislature), which might interfere with rights which had been conferred on the minority, after the union.
The memorial of the "Congress" goes on to state that the Judicial Committee of the Privy Council, in England, has upheld the validity 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 subsections 2 and 3 of section 22 of the Manitoba Act. There was also referred to the sub-committee 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 Excellency's predecessors before the passage of the Manitoba Act, to redress all well founded grievances 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 memorial, 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 St. Boniface, and by the President of the "National Congress," the Mayor of St. Boniface, and about 137 others, and is presented in the name of the "members of the Roman Catholic Church resident 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 "subversive of the rights and privileges of the Roman Catholic minority provided 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:—
(1.) 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.
(3.) That it may be declared that the said acts affect the rights and privileges of Roman Catholics in relation to education.
(4.) That the re-enactment may be ordered by Your Excellency of the 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 proportionate 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 1890 should be so amended as to effect that purpose.
Then follows a general prayer for relief.
In making their report the sub-committee will comment only upon the last memorial presented, as it seems to contain, in effect, all the allegations embraced in the former petitions which call for their consideration and is more specific as to the relief which is sought.
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., chs. 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 conclusive 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. 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, but it remains to be considered whether the appeal 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, i.e., a system providing for Public Schools and for Separate Catholic 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 1890 (chapters 37 and 38) were passed.
The 93rd 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 1) to preserve the right with respect to denominational schools which any class of persons had by law in the province at the union. As to this restriction it seems to impose a condition on the validity of any Act relating to education, and the subcommittee have already observed that no question, it seems to them, can arise, since the decision of the Judicial Committee of the Privy Council.
The third sub-section, however, is as follows:—
"Where in any province a system of separate or dissentient schools exists by law at the union, or is thereafter established by the legislature of the province, an appeal shall lie to the Governor General in Council from any Act or decision of any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education."
The Manitoba Act passed in 1870, by which the province of Manitoba was constituted, contains the following provisions, as regards that province:—
By section 22 the power is conferred on the legislature exclusively to make laws in relation to education, but subject to the following restrictions:
(1) "Nothing in any such law shall 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."
This 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 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."
It will be observed that the restriction contained in subsection 2 is not identical with the restriction of subsection 3 of the 93rd section of the British North America Act, and questions are suggested, in view of this difference, as to whether subsection 3 of section 93 of the British North America Act applies to Manitoba, and, if not, whether subsection 2 of section 22 of the Manitoba Act is sufficient to sustain the case of the appellants; or, in other words, whether, in regard to Manitoba, the minority has the same protection against laws which the legislature of the province has power to pass, as the minorities in other provinces have, under the subsection before quoted from the British North America Act, as to separate or denominational schools established after the union.
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 committee 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. The remedy, therefore, which is sought, is against acts which are intra vires of the provincial legislature. His argument is also that the appeal does not ask Your Excellency to interfere with any rights or powers of the legislature of Manitoba, inasmuch as the power to legislate on the subject of 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 feel called upon to express an opinion, and, so far as they 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 since the establishment of the Dominion.
The application comes before Your Excellency in a manner differing from applications which are ordinarily made, under the constitution, to Your 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 political character or involving political action on the part of Your Excellency's advisers. It is to be dealt with by Your Excellency in Council, regardless of the personal views which Your Excellency's advisers may hold with regard to denominational schools and without the political action of any of the members of Your Excellency's Council being considered as pledged by the fact of the appeal being entertained and heard. If the contention of the petitioners be correct, that such an appeal can be sustained, the inquiry will be rather of a judicial than a political character. The sub-committee have so treated it in hearing counsel, and in permitting their only meeting to be open to the public. It is apparent that several other questions will arise, in addition to those which were discussed by counsel at that meeting, and the sub-committee advises that a date be fixed at which the petitioners, or their counsel, may be heard with regard to the appeal, according to their first request.
The sub-committee think it proper that the Government of Manitoba should have an opportunity to be represented at the hearing, and they further recommend, with that view, that if this report should be approved, a copy of any minute approving it, and of any minute fixing the date of the hearing with regard to the appeal, be forwarded, together with copies of all the petitions referred to, to His Honour the Lieutenant-Governor of Manitoba, for the information of His Honour's advisers.
In the opinion of the sub-committee the attention of any person who may attend on behalf of the petitioners, or on behalf of the Provincial Government, should be called to certain preliminary questions which seem to arise with regard to the appeal. Among the questions which the sub-committee regard as preliminary are the following:—
(1.) 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 of the 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 subsection 3 of section 93 of the British North America 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 Manitoba, 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, affect, "the right or privilege" of the minority in such a manner as to warrant the present appeal.
Other questions of alike character may be suggested at the hearing, and it may be desirable that arguments should be heard upon such preliminary points before any hearing shall take place on the merits of the appeal.
Respectfully submitted,
Jno. S. D. Thompson,
M. Bowell,
J. A. Chapleau,
T. Mayne Daly.
St. Boniface, 22nd September, 1892.
Sir,—I have the honour to transmit to you herewith inclosed a petition for the consideration of His Excellency the Governor General in Council concerning the appeal of the Roman Catholics of the province of Manitoba with regard to education.
I have, etc.,
† ALEX. TACHÉ,
Arch. of St. Boniface, O.M.I.
To the Honourable
The Secretary of State for Canada,
Ottawa, Ont.
To His Excellency the Governor General in Council:
The humble petition of the undersigned, Archbishop of the Roman Catholic Church in the province of Manitoba, respectfully sheweth:—
1st. That two statutes, 53 Vic., chap. 37 and 38, were passed in the Legislative Assembly of Manitoba to merge the Roman Catholic Schools with those of the Protestant denominations, and to require all members of the community, whether Roman Catholic or Protestant, to contribute, through taxation, to the support of what are therein called Public Schools, but which are in reality a continuation of the Protestant Schools.
2nd. That on the 4th of April, 1890, James E. P. Prendergast, M.P.P. for Woodlands, transmitted to the honourable the Secretary of State for Canada a petition, signed by eight members of the legislative assembly of Manitoba, to make known to His Excellency the Governor General the grievances under which Her Majesty's Roman Catholic subjects of the province of Manitoba were suffering by the passage of the said two acts, respectively intituled: "An Act respecting the Department of Education," and "An Act respecting Public Schools," (53 Vic., chaps. 37 and 38). The said petition ended by the following words:—"Your petitioners, therefore, humbly pray that Your Excellency may be pleased to take such action and grant such relief and remedy as to Your Excellency may seem meet and just."
3rd. That on the 7th of April, the same year, 1890, the Catholic section of the Board of Education, in a petition signed by its president, the Archbishop of St, Boniface, and its secretary, T. A. Bernier, "most respectfully and earnestly prayed His Excellency the Governor General in Council that said last mentioned acts (53 Vic., chaps. 37 and 38) be disallowed to all intents and purposes."
4th. That on the 12th of April, 1890, the undersigned brought before His Excellency some of the facts concerning the outbreak which occurred at Red River during the winter of 1869-70; the part that the undersigned was invited, by Imperial and Federal authorities, to take in the pacification of the country; the promise intrusted to the undersigned in an autograph letter from the then Governor General that the people of Red River "may rely that respect and attention will be extended to the different religious persuasions;" the furnishing the undersigned with a proclamation to be made known to the dissatisfied population, in which proclamation the then Governor General declared:—"Her Majesty commands me to state to you that she will be always ready, through me as her representative, to redress all well-founded grievances." By Her Majesty's authority, I do therefore assure you that on your union with Canada "all your civil and religious rights and privileges will be respected." In the strength of such assurance the people of Red River consented to their union with Canada, and the Act of Manitoba was passed, giving guarantees to the minority that their rights and privileges, acquired by law or practice, with regard to education, would be protected. The cited Acts, 53 Vic., chaps. 37 and 38, being a violation of the assurances given to the Red River population, through the Manitoba Act, the undersigned ended his petition of the 12th April, 1890, by the following words:—
"I therefore most respectfully and most earnestly pray that Your Excellency, as the representative of our most beloved Queen, should take such steps that in your wisdom would seem the best remedy against the evils that the above mentioned and recently enacted laws are preparing in this part of Her Majesty's /?/doain."
5th. That later on, working under the above mentioned disadvantage and wishing for a remedy against laws which affected their rights and privileges, in the matter of education, 4,267 members of the Roman Catholic Church, in the province of Manitoba, on behalf of themselves and their co-religionists, appealed to the Governor General in Council from the said acts of the legislature of the province of Manitoba, the prayer of their petition being as follows:—
"(1.) That Your Excellency, the Governor General in Council, may entertain the said appeal, and may consider the same, and may make such provisions and give such directions for the hearing and consideration of the said appeal as may be thought proper. "(2.) That it may be declared that such Provincial law does prejudicially affect the rights and privileges with regard to denominational schools which Roman Catholics had by law or practice in the province at the union.
"(3.) That such directions may be given and provisions made for the relief of the Roman Catholics of the Province of Manitoba, as to Your Excellency in Council may seem fit."
6th. That in the month of March, 1891, the Cardinal Archbishop of Quebec and the Archbishops and Bishops of the Roman Catholic Church in Canada, in a petition to His Excellency the Governor General in Council, shew that the 7th Legislature of the Province of Manitoba, in its 3rd session assembled, had passed an Act intituled: "An Act respecting the Department of Education," and another Act to be cited: "The Public School Act," which deprived the Catholic minority of the province of the rights and privileges they enjoyed with regard to education; and the venerable prelates added:—"Therefore your petitioners humbly pray Your Excellency in Council to afford a remedy to the pernicious legislation above mentioned, and that in the most efficacious and just way."
7th. That on the 21st March, 1891, the Honourable the Minister of Justice reported on the two Acts alluded to above, cap. 37, "An Act respecting the Department of Education," and cap. 38, "An Act respecting Public Schools," and here are the conclusions of his report:— "If the legal controversy should result in the decision of the Court of Queen's Bench (adverse to Catholic views) being sustained, the time will 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 subsections 2 and 3 of section 22 of the Manitoba Act, quoted in the early part of this report, and which are analogous to the provisions made by the British North America Act in relation to the other provinces.
"Those subsections contain in effect the provisions which have been made as to all the provinces, and are obviously those under which the constitution intended that the Government of the Dominion should proceed if it should at any time become necessary that the Federal powers should be resorted to for the protection of a Protestant or Roman Catholic minority against any act or decision of the Legislature of the province, or of any provincial authority, affecting any 'right or privilege' of any such minority 'in relation to education.'"
A committee of the Honourable the Privy Council having had under consideration the above report submitted the same for approval, and it was approved by His Excellency the Governor General in Council on the 4th of April, 1891.
8th. That the Judicial Committee of Her Majesty's Privy Council has sustained the decision of the Court of Queen's Bench.
9th. That your petitioner believes 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 subsections 2 and 3 of section 22 of the Manitoba Act" as it has "become necessary that the Federal power should be resorted to for the protection of the Roman Catholic minority."
Your petitioner therefore prays—
1. That Your Excellency the Governor General in Council may entertain the appeal of the Roman Catholics of Manitoba, and may consider the same, and may make such provisions and give such directions for the hearing and consideration of the said appeal as may be thought proper. 2. That such directions may be given and provisions made for the relief of the Roman Catholics of the province of Manitoba as to Your Excellency in Council may seem fit.
And your petitioner will ever pray.
† ALEX. TACHÉ, Archbishop of St. Boniface.
St. Boniface, 22nd September, 1892.
(Translation.)
St. Boniface, Manitoba,
30th September, 1892.
To the Hon. J. C. Patterson,
Secretary of State, &c.,
Sir,—I have the honour to transmit herewith, for submission to His Excellency the Governor General in Council, a petition signed by the executive of the National Congress, organized on the 24th June, 1890, asking the Dominion Government to consider the petitions already presented by the Catholics of this province, with a view to obtain redress of the grievances inflicted upon them in relation to education by the action of the provincial legislature of Manitoba, in 1890, and to request that you will submit the said petition to His Excellency in Council with as little delay as possible.
I have, &c.,
A. A. C. LaRIVIÈRE.
(Translation.)
Office of the National Congress,
St. Boniface, 20th Sept., 1892.
To the Hon. Mr. LaRivière, M.P., St. Boniface.
Sir,—In behalf of the National Congress, organized, 24th June, 1890, I beg to request that you will transmit to His Excellency the Governor General in Council the inclosed petition asking the Dominion Government to consider the petitions already presented by the Catholics of this province, with a view to obtaining redress of the grievances inflicted upon them in the matter of education, by the provincial legislation of Manitoba, in 1890.
I have the honour, &c.,
T. A. BERNIER,
Pres. pro tem.
TO HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL.
The humble petition of the undersigned members of the Roman Catholic Church, in the province of Manitoba, and dutiful subjects of Her Most Gracious Majesty, doth hereby respectfully represent that:—
The seventh legislature of the province of Manitoba, in its third session assembled, did pass in the year eighteen hundred and ninety an act intituled "An Act respecting the Department of Education," and also an act respecting public schools, which deprive the Roman Catholic minority in the said province of Manitoba of the rights and privileges they enjoyed with regard to education previous to and at the time of the union, and since that time up to the passing of the acts aforesaid.
That subsequent to the passing of said acts, and on behalf of the members of said Roman Catholic Church, the following petition has been laid before Your Excellency in Council:—
To His Excellency the Governor General in Council:
The humble petition of the undersigned members of the Roman Catholic Church, in the province of Manitoba, presented on behalf of themselves and their co-religionists in the said province, sheweth as follows:—
1. Prior to the passage of the Act of the Dominion of Canada, passed in the thirty-third year of the reign of Her Majesty Queen Victoria, chapter three, known as the Manitoba Act, and prior to the Order in Council issued in pursuance thereof, there existed, in the territory now constituting the province of Manitoba, a number of effective schools for children.
2. These schools were denominational schools, some of them being regulated and controlled by the Roman Catholic Church, and others by various Protestant denominations.
3. The means necessary for the support of the Roman Catholic schools were supplied to some extent by school fees paid by some of the parents of the children who attended the schools and the rest was paid out of the funds of the church contributed by its members.
4. During the period referred to Roman Catholics had no interest in or control over the schools of the Protestant denominations, and the Protestant denominations had no interest in or control over the schools of the Roman Catholics. There were no public schools in the sense of state schools. The members of the Roman Catholic Church supported the schools of their own church for the benefit of the Roman Catholic children and were not under obligation to, and did not, contribute to the support of any other schools.
5. In the matter of education, therefore, during the period referred to, Roman Catholics were as a matter of custom and practice separate from the rest of the community.
6. Under the provisions of the Manitoba Act it was provided that the Legislative Assembly of the province should have the exclusive right to make laws in regard to education, subject to the following provisions:—
(1.) Nothing in any such law shall 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.
(2.) 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.
(3.) In case any such provincial law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor General in Council, or 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 Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor General under this section.
7. During the first session of the Legislative Assembly of the province of Manitoba an act was passed relating to education, the effect of which was to continue to the Roman Catholics that separate condition with reference to education which they had enjoyed previous to the erection of the province.
8. The effect of the statute, so far as the Roman Catholics were concerned, was merely to organize the efforts which the Roman Catholics had previously voluntarily made for the education of their own children. It provided for the continuance of schools under the sole control and management of Roman Catholics, and of the education of their children according to the methods by which alone they believe children should be instructed.
9. Ever since the said legislation, and until the last session of the legislative assembly, no attempt was made to encroach upon the rights of the Roman Catholics so confirmed to them as above mentioned, but during said session statutes were passed (53 Vic., chaps. 37 and 38) the effect of which was to deprive the Roman Catholics altogether of their separate condition in regard to education; to merge their schools with those of the Protestant denominations; and to require all members of the community, whether Roman Catholic or Protestant, to contribute, through taxation, to the support of what are therein called public schools, but which are in reality a continuation of the Protestant schools.
10. There is a provision in the said act for the appointment and election of an advisory board, and also for the election in each municipality of school trustees. There is also a provision that the said advisory board may prescribe religious exercises for use in schools, and that the said school trustees may, if they think fit, direct such religious exercises to be adopted in the schools in their respective districts. No further or other provision is made with reference to religious exercises, and there is none with reference to religious training.
11. Roman Catholics regard such schools as unfit for the purposes of education, and the children of Roman Catholic parents cannot and will not attend any such schools. Rather than countenance such schools Roman Catholics will revert to the voluntary system in operation previous to the Manitoba Act, and will at their own private expense establish, support and maintain schools in accordance with their principles and their faith, although by so doing they will have in addition thereto to contribute to the expense of the so-called public schools.
12. Your petitioners submit that the said act of the legislative assembly of Manitoba is subversive of the rights of Roman Catholics guaranteed and confirmed to them by the statute erecting the province of Manitoba, and prejudicially affects the rights and privileges with respect to Roman Catholic schools which Roman Catholics had in the province at the time of its union with the Dominion of Canada. 13. Roman Catholics are in minority in said province.
14. The Roman Catholics of the province of Manitoba therefore appeal from the said act of the Legislative Assembly of Manitoba.
Your Petitioners therefore pray—
1. That Your Excellency the Governor General in Council may entertain the said appeal, and may consider the same, and may make such provisions and give such directions for the hearing and consideration of the said appeal as may be thought proper.
2. That it may be declared that such provincial law does prejudicially affect the rights and privileges with regard to denominational schools which Roman Catholics had by law or practice in the province at the union.
3. That such directions may be given and provisions made for the relief of the Roman Catholics of the Province of Manitoba as to Your Excellency in Council may seem fit.
And your petitioners will ever pray.
†Alex., Arch. of St. Boniface.
Henri F., Ev. d'Anemour.
Joseph Messier, P.P. of St. Boniface.
T. A. Bernier.
J. Dubuc.
L. A. Prud'homme.
M. A. Girard.
A. A. LaRivière, M.P.
James E. Prendergast, M.P.P.
Roger Marion, M.P.P.,
and 4,257 more names.
That on the consideration by the Privy Council of Canada of the two Acts aforesaid, the following report of the Honourable the Minister of Justice, dated 21st March, 1891, was approved by His Excellency the Governor General in Council on the 4th of April, 1891, viz.:—
DEPARTMENT OF JUSTICE,
Canada, 21st March, 1891.
To His Excellency the Governor General in Council:
The undersigned has the honour to report upon the two Acts of the following titles passed by the Legislature of the Province of Manitoba at its session held in the year 1890, which Acts were received by the Honourable the Secretary of State on the 11th April, 1890:—
Chapter 37, "An Act respecting the Department of Education," and chapter 38, "An Act respecting the Public Schools."
The first of these Acts creates a Department of Education, consisting of the Executive Council or a Committee thereof appointed by the Lieutenant-Grovernor in Council, and defines its powers. It also creates an Advisory Board, partly appointed by the Department of Education and partly elected by teachers, and defines its powers. Also.
The "Act respecting Public Schools" is a consolidation and amendment of all previous legislation in respect to public schools. It repeals all legislation which created and authorized a system of separate schools for Protestants and Roman Catholics. By the Acts previously in force either Protestants or Roman Catholics could establish a school in any school district, and Protestant ratepayers were exempted from contribution for the Catholic schools, and Catholic ratepayers were exempted from contribution for Protestant schools.
The two Acts now under review purport to abolish these distinctions as to the schools, and these exemptions as to ratepayers, and to establish instead a system under which public schools are to be organized in all the schools districts, without regard to the religious views of the ratepayers. The right of the province of Manitoba to legislate on the subject of education is conferred by the act which created the province, viz., 32-33 Vic., chap. 3 (The Manitoba Act), section 22, which is as follows:—
"22. In and for the province of Manitoba the said legislature may exclusively make laws in relation to education, subject to the following provisions:—
"(1.) Nothing in any such law shall 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.
"(2.) An appeal shall lie to the Governor General in Council from the 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.
"(3.) In case any such provincial law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor 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 Parliament may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section."
In the year 1870, when the "Manitoba Act" was passed there existed no system of education established or authorized by law, but at the first session of the provincial legislature in 1871 an "Act to establish a system of education in the province" was passed. By that act the Lieutenant Governor in Council was empowered to appoint not less than ten or more than fourteen to be a Board of Education for the province, of whom one-half were to be Protestants and the other half Catholics, with one superintendent of Protestant and one superintendent of Catholic schools. The Board was divided into two sections, Protestant and Catholic, each section to have under its control and management the discipline of the schools of its faith, and to prescribe the books to be used in the schools under its care which had reference to religion or morals.
The moneys appropriated for education by the legislature were to be divided equally, one moiety thereof to the support of Protestant schools, and the other moiety to the support of Catholic schools.
By an act passed in 1875 the board was increased to twenty-one, twelve Protestants and nine Roman Catholics; the moneys voted by the legislature were to be divided between the Protestant and Catholic schools in proportion to the number of children of school age in the schools under the care of Protestant and Catholic sections of the board respectively.
The Act of 1875 also provided that the establishment in a school district of a school of one denomination should not prevent the establishment of a school of another denomination in the same district.
Several questions have arisen as to the validity and effect of the two statutes now under review; among those are the following:—
It being admitted that "no class of persons" (to use the expression of the Manitoba Act), had "by law" at the time the province was established, "any right or privilege with respect to denominational (or any other) school," had "any class of persons" any such right or privilege with respect to denominational schools "by practice" at that time? Did the existence of separate schools for Roman Catholic children, supported by Roman Catholic voluntary contributions, in which their religion might be taught and in which text books suitable for Roman Catholic schools were used, and the non-existence of any system by which Roman Catholics, or any other, could be compelled to contribute for the support of schools, constitute a "right or privilege" for Roman Catholics "by practice" within the meaning of the Manitoba Act? The former of these, as will at once be seen, was a question of fact and the latter a question of law based on the assumption, which has since been proved to be well founded, that the existence of separate schools at the time of the "union" was the fact on which the Catholic population of Manitoba must rely as establishing their "right or privilege" "by practice." The remaining question was whether, assuming the foregoing questions, or either of them, to require an affirmative answer, the enactments now under review, or either of them, affected any such "right or privilege."
It became apparent at the outset that these questions required the decision of the judicial tribunals, more especially as an investigation of facts was necessary to their determination. Proceedings were instituted with a view to obtaining such a decision in the Court of Queen's Bench of Manitoba several months ago, and in course of these proceedings the facts have been easily ascertained, and the two latter of the three questions above stated were presented for the judgment of that court with the arguments of counsel for the Roman Catholics of Manitoba on the one side, and of counsel for the provincial government on the other.
The court has practically decided, with one dissentient opinion, that the acts now under review do not "prejudicially affect any right or privilege with respect to denominational schools" which Roman Catholics had "by practice at the time of the union," or, in brief, that the non-existence, at that time, of a system of public schools and the consequent exemption from taxation for the support of public schools and the consequent freedom to establish and support separate or "denominational" schools did not constitute a "right or privilege" "by practice" which these acts took away.
An appeal has been asserted and the case is now before the Supreme Court of Canada, where it will, in all probability, be heard in the course of next month.
If the appeal should be successful these acts will be annulled by judicial decision; the Roman Catholic minority of Manitoba will receive protection and redress. The acts purporting to be repealed will remain in operation, and those whose views have been represented by a majority of the Legislature cannot but recognize that the matter has been disposed of with due regard to the constitutional rights of the province.
If the legal controversy should result in the decision of the Court of Queen's Bench being sustained the . time will 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 subsections 2 and 3 of section 22 of the "Manitoba Act" quoted in the early part of this report and which are analogous to the provisions made by the British North America Act in relation to the other provinces.
Those subsections contain in effect the provisions which have been made as to all the provinces and are obviously those under which the constitution intended that the Government of the Dominion should proceed if it should at any time become necessary that the Federal powers should be resorted to for the protection of a Protestant or Roman Catholic minority against any Act or decision of the Legislature of the province, or of any provincial authority, affecting any "right or privilege" of any such minority "in relation to education."
Respectfully submitted,
JOHN S. D. THOMPSON,
Minister of Justice. That a recent decision of the Judicial Committee of the Privy Council in England having sustained the judgment of the Court of Queen's Bench of Manitoba, upholding the validity of the Acts aforesaid, your petitioners most respectfully represent that, as intimated in said report of the Honourable the Minister of Justice, 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 subsections 2 and 3 of section 22 of the "Manitoba Act."
That your petitioners, notwithstanding such decision of the Judicial Committee of the Privy Council in England, still believe that their rights and privileges in relation to education have been prejudicially affected by said Acts of the Provincial Legislature.
Therefore, your petitioners most respectfully and most earnestly pray that it may please Your Excellency in Council to take into consideration the petitions above referred to, and to grant the conclusions of said petitions and the relief and protection sought for by the same.
And your petitioners will ever pray.
Saint Boniface, 20th September, 1892.
Members of the Executive Committee of the National Congress.
T. A. Bernier,
Acting President,
A. A. C. LaRivière,
Joseph Lecomte,
Jas. E. P. Prendergast,
J. Ernest Cyr,
Theo. Bertrand.
H. F. Despars,
M. A. Kervalk,
Télesphore Pelletier,
Dr. J. H. Oct. Lambert,
Joseph Z. C. Auger,
A. F. Martin.
Secretaries, A. E. Versailles,
R. Goulet, Jr. WINNIPEG, Man., 31st October, 1892.
The Honourable the Secretary of State,
Ottawa, Ont.
Sir,—I have the honour to inclose you another petition on behalf of the Catholic minority of Manitoba with reference to the position in which they find themselves in reference to education in this province. I do not desire that this petition should be substituted for the others already presented, but that it should rather be taken as supplementary to those others. May I ask that the matter may be brought before His Excellency the Governor General in Council at the earliest possible date?
I have, &c.,
JOHN S. EWART.
TO HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL.
The humble petition of the members of the Roman Catholic Church residing in the Province of Manitoba sheweth as follows:—
1. Prior to the passage of the Act of the Dominion of Canada, passed in the 33rd year of the reign of Her Majesty Queen Victoria, chap. 3, known as the Manitoba Act, and prior to the Order in Council issued in pursuance thereof, there existed in the territory now constituting the Province of Manitoba a number of effective schools for children.
2. These schools were denominational schools, some of them being regulated and controlled by the Roman Catholic Church, and others by various Protestant denominations.
3. The means necessary for the support of the Roman Catholic schools were supplied to some extent by school fees paid by some of the parents of the children who attended the schools, and the rest was paid out of the funds of the church contributed by its members.
4. During the period referred to Roman Catholics had no interest in or control over the schools of the Protestant denominations, and the members of the Protestant denominations had no interest in or control over the schools of the Roman Catholics. There were no public schools in the sense of State schools. The members of the Roman Catholic Church supported the schools of their own church for the benefit of Roman Catholic children and were not under obligation to, and did not, contribute to the support of any other schools.
5. In the matter of education, therefore, during the period referred to, Roman Catholics were as a matter of custom and practice separate from the rest of the community.
6. Under the provisions of the Manitoba Act it was provided that the Legislative Assembly of the province should have the exclusive right to make laws in regard to education, subject, however, and according to the following provisions:—
"(1.) Nothing in any such law shall 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.
"(2.) 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.
"(3.) In case any such provincial law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor General under this section."
7. During the first session of the Legislative Assembly of the province of Manitoba an act was passed relating to education, the effect of which was to continue to the Roman Catholics that separate condition with reference to education which they had enjoyed previous to the erection of the province.
8. The effect of this statute, so far as the Roman Catholics were concerned, was merely to organize the efforts which Roman Catholics had previously voluntarily made for the education of their own children. It provided for the continuance of schools under the sole control and management of Roman Catholics, and for the education of their children according to the methods by which alone they believe children should be instructed. Between the time of the passage of the said act, and prior to the statute next hereinafter referred to, various acts were passed amending and consolidating the said act, but in and by all such later acts the rights and privileges of the Roman Catholics were acknowledged and conserved and their separate condition in respect to education continued.
9. Until the session of the Legislative Assembly held in the year 1890 no attempt was made to encroach upon the rights of the Roman Catholics so confirmed to them as above mentioned, but during said session statutes were passed (53 Vic., chaps. 37 and 38) the effect of which was to repeal all the previous acts; to deprive the Roman Catholics altogether of their separate condition in regard to education; to merge their schools with those of the Protestant denomination; and to require all members of the community, whether Roman Catholic or Protestant, to contribute, through taxation, to the support of what are therein called public schools, but which are in reality a continuation of the Protestant schools.
10. There is a provision in the said act for the appointment and election of an advisory board, and also for the election in each district of school trustees. There is also a provision that the said advisory board may prescribe religious exercises for use in schools, and that the said school trustees may, if they think fit, direct such religious exercises to be adopted in the schools in their respective districts. No further or other provision is made with reference to religious exercises, and there is none with reference to religious training.
11. Roman Catholics regard such schools as unfit for the purposes of education, and the children of the Roman Catholic parents cannot and will not attend any such schools. Rather than countenance such schools Roman Catholics will revert to the voluntary system in operation previous to the Manitoba Act, and will at their own private expense establish, support and maintain schools in accordance with their principles and their faith, although by so doing they will have in addition thereto to contribute to the expense of the so-called public schools.
12. Your petitioners submit that the said acts of the Legislative Assembly of Manitoba are subversive of the rights of the Roman Catholics guaranteed and confirmed to them by the statute erecting the province of Manitoba, and prejudicially affect the rights and privileges with respect to Roman Catholic schools which Roman Catholics had in the province at the time of its union with the Dominion of Canada. 13. Your petitioners further submit that the said acts of the legislative assembly of Manitoba are subversive of the rights and privileges of Roman Catholics provided for by the various statutes of the said legislative assembly prior to the passing of the said acts and affect the rights and privileges of the Roman Catholic minority of the Queen's subjects in the said province in relation to education so provided for as aforesaid, thereby offending both against the British North America Act and the Manitoba Act.
14. Roman Catholics are in a minority in the said province, and have been so for the last fifteen years.
15. The Roman Catholics of the province of Manitoba, therefore, appeal from the said acts of the legislative assembly of the province of Manitoba.
Your petitioners therefore pray—
1. That Your Excellency the Governor General in Council may entertain the said appeal and may consider the same, and may make such provisions and give such directions for the hearing and consideration of the said appeal as may be thought proper.
2. That it may be declared that the said acts (53 Vic. chaps. 37 and 38) do prejudicially affect the rights and privileges with regard to denominational schools which Roman Catholics had by law or practice in the province at the union.
3. That it may be declared that the said last mentioned acts do affect the rights and privileges of the Roman Catholic minority of the Queen's subjects in relation to education.
4. That it may be declared that to Your Excellency the Governor General in Council it seems requisite that the provisions of the statutes in force in the province of Manitoba prior to the passage of the said acts should be re-enacted, in so far at least as may be necessary to secure to the Roman Catholics in the said province the right to build, maintain, equip, manage, conduct and support their schools in the manner provided for by the said statutes, to secure to them their proportionate share of any grant made out of the public funds for the purposes of education, and to relieve such members of the Roman Catholic Church as contribute to such Roman Catholic schools from all payment or contribution to the support of any other schools; or that the said Acts of 1890 should be so modified or amended as to effect such purposes.
5. And that such further or other declaration or order may be made as to Your Excellency the Governor General in Council shall, under the circumstances, seem proper, and that such directions may be given, provisions made and all things done in the premises for the purpose of affording relief to the said Roman Catholic minority in the said province as to Your Excellency in Council may seem meet.
And your petitioners will ever pray.
† Alex., Arch. of St. Boniface, O.M.I.
T. A. Bernier, President of the National Congress.
James E. P. Prendergast, Maire de la Ville de St. Boniface.
J. Allard, O.M.I., V.G., and about 137 others.
John S. Ewart, Counsel for the Roman Catholic minority in the Province of Manitoba.
THE MANITOBA SCHOOL LAW.
The Conservative League, faithful to the enduring traditions of the Conservative party, wishes to record its regret that good feeling and a spirit of conciliation, so essential to the well-being of our public affairs, do not actuate the Government and the majority of the people of Manitoba; it regrets that, in the name of "Equal Rights," liberty of conscience, justice and equality of rights have been denied by the school law of 1890 to a very large portion of the inhabitants of that province.
In common with every citizen of the province of Quebec this League has the right to make itself heard on this question, because the province of Quebec accepted confederation only on the express condition that the rights of minorities would be respected and kept safe. Therefore it is that the League asserts itself to vindicate its principles and to defend the privileges and immunities of the minority in Manitoba.
The education of children is the exclusive province of the father of the family, and their education devolves on him as a matter of strict duty. It follows as a necessary consequence from this principle that the father of a family has the undeniable right to fulfil this duty according to the dictates of his conscience, that in the exercise of this duty and of this right the State has no lawful power to interfere with or restrict his freedom of action, and that any law which tends to trammel such free action is offensive to good conscience.
The Manitoba School Law of 1890 is a usurpation by the State of the rights of the pater familias. It is an Act subversive of his rights,—it is an abuse of power inspired by intolerance and fanaticism and is of a nature to inspire fear for the very existence of confederation if a remedy be not applied in good time.
No one can honestly deny the treaty of 1870, between the Government of Canada and the people of Manitoba, by which it was formally covenanted and agreed that their separate schools should be preserved to them. Nor can any one with honesty deny that the Manitoba School law of 1871, made and adopted by the very men who had themselves been parties to the treaty of the year before, maintained these separate schools for Catholics and Protestants. And yet, the highest tribunal in England took into account neither the solemn treaty of 1870, nor the unequivocal interpretation of that treaty contained in the law of 1871.
For a moment only let the opposite state of things be supposed; let us suppose that a French Catholic majority in Manitoba refused separate schools to a Protestant minority. Who will believe that in such a state of things the Privy Council would have interpreted the Manitoba treaty in the same sense? Their Lordships would have shewn that our Catholic good faith, that our national honour were solemnly bound. They would have been eloquent in defence of the liberty of the citizens and learned as to the rights belonging to a father of a family; and they would have been right. But the supposition is altogether unfounded, for French Canadians have ever given constant proof, not in mere words but by deed and practice, of the truest liberality towards the Protestant minority of the province of Quebec. Fair play deserves fair play in return.
But there is more than this to be said. The Treaty of Paris (1763) fixed the conditions of the cession of Canada to England, and by this treaty England promised that the people of this country should remain free in the exercise of the Catholic religion. But, since it is obligatory for the Catholic to give his children a religious education, it follows that to banish religious instruction from the primary school is to deny him the right to obey the precepts of his religion, and this can only be done in violation of the exacted promise on the faith of which Canada became a British colony.
For these reasons the Conservative League protests against the school law in force in Manitoba, and expresses the hope that our statesmen and public men will labour manfully and uncompromisingly until these laws shall have been remedied.
Another question arises out of this subject, and claims our earnest attention. The present crisis would have been avoided if the Privy Council in England had rendered a decision according to equity, and based on the true state of the case. Unfortunately in the present instance, as in every other where the interests of the Catholics of this country and of the French Canadians have been involved, that high tribunal has rendered an arbitrary judgment. Since unhappily this appears to be true, it is most opportune to consider whether Indeed the Privy Council has jurisdiction in such matters and to have it taken away if it exists: for the time has gone by and is past when a country or a people can be made to suffer injustice indefinitely.
MONTREAL, 3rd November, 1892.
THE CONSERVATIVE LEAGUE.
DEPARTMENT OF THE SECRETARY OF STATE OF CANADA,
OTTAWA, 26th September, 1892.
MY LORD ARCHBISHOP,—I have the honour to acknowledge the receipt of your letter of the 22nd instant, transmitting for the consideration of His Excellency the Governor General a petition concerning the appeal of the Roman Catholics of the province of Manitoba with regard to education, and to state that the matter will receive consideration.
I have, &c.,
L. A. CATELLIER,
Under-Secretary of State.
His Grace the Lord Archbishop of St. Boniface, St. Boniface, Man.
DEPARTMENT OF THE SECRETARY OF STATE,
OTTAWA, 5th October, 1892.
Sir,—I have the honour to acknowledge receipt of your letter of the 30th of last month, inclosing for submission to His Excellency the Governor General in Council a petition signed by the members of the Executive of the National Congress, asking the Dominion Government to consider the petitions presented by the Catholics of the province of Manitoba on the question of the schools of that province, and to inform you that the said petition will receive attention.
I have, &c.,
L A. CATELLIER,
Under-Secretary of State.
A. A. C. LaRIVIÈRE, M.P., St. Boniface, Man.
DEPARTMENT OF THE SECRETARY OF STATE OF CANADA,
OTTAWA, 5th November, 1892.
JOHN S. EWART, Esq., Q.C., of Messrs. Ewart,
Fisher & Wilson, Barristers, Winnipeg, Man.
Sir,—I have the honour to acknowledge the receipt of your letter of the 31st ult., transmitting for submission to His Excellency the Governor General in Council another petition on behalf of the Catholic minority in Manitoba with reference to the position in which they find themselves consequent on the passing of certain provincial statutes, dealing with education in Manitoba, as therein set forth, and to state that the said petition will receive attention.
I have, &c.,
L. A. CATELLIER,
Under-Secretary of State.
DEPARTMENT OF THE SECRETARY OF STATE,
OTTAWA, 4th January. 1893.
To His Honour the Lieutenant-Governor of Manitoba, Winnipeg, Man.
Sir,—I have to inform you that His Excellency the Governor General, having had under his consideration in Council a report from a sub-committee of the honourable the Privy Council, to whom had been referred certain memorials to His Excellency, complaining of two statutes of Manitoba, relating to education, passed in the session of 1890, has been pleased to make an order in the premises, a copy of which, together with a copy of the report above mentioned, I have the honour to transmit herewith, for the information of Your Honour's Government.
I have, &c.,
L. A. CATELLIER,
Under-Secretary of State.
GOVERNMENT HOUSE,
WINNIPEG, 7th January, 1893.
The Under-Secretary of State, Ottawa.
Sir,—I have the honour to acknowledge the receipt of your despatch No. 13, file No. 4,988, dated 4th instant, informing me that His Excellency the Governor General, having had under his consideration in Council a report from a sub-committee of the honourable the Privy Council (to whom had been referred certain memorials to His Excellency, complaining of two statutes of Manitoba, relating to edu