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Speech before the House of Commons, March 3, 1896
Sir CHARLES TUPPER: moved second reading of bill (No. 58) The Remedial Act (Manitoba). He said: Mr. Speaker, in times past I have had occasion to propose to this House the consideration of measures of very great importance, but I confess that I have never risen to propose the second reading of a Bill under the same deep sense of responsibility that I feel on the present occasion. The question that is now submitted for the consideration of this House is one which, in my judgment, transcends in importance any measure that has ever been submitted to this House during its existence. I cannot do better than to draw the attention of the House, briefly, in the outset, to what has been accomplished by the great measure of confederation which to-day brings us face to face with the question under consideration.
In 1864 a measure was concerted between the governments of New Brunswick, Prince Edward Island, and Nova Scotia for the legislative union of these maritime provinces. The Hon. Sir Leonard Tilley was at that time the Prime Minister of New Brunswick, the late Col. Grey was Premier of Prince Edward Island, and I had the honour to hold a similar position in regard to the province of Nova Scotia. I need not say to the members of this House, who all know, either personally or by long repute, Sir Leonard Tilley, that he was one of the fathers of confederation, and one of the public men who throughout his long career in Canada has been known and respected for his very high attainments and great patriotism. When we met as arranged, to hold a conference at Charlottetown for the purpose of taking up that question, a deputation came down from the province of Canada -- then United Canada -- and asked that they should be heard in reference to the still larger and wider project, of providing for the confederation of all the British North American colonies. I need hardly say that all gentlemen present in this House who have given attention to the history of Canada in those days, are well aware that the position of Canada was then anything but a happy one. All who have given attention to this subject know that questions of race and religion had formed prominent subjects of consideration between the great political parties, the Conservative and Liberal parties, of this country, and that during that period, so great had the conflict become, so closely balanced were the parties representing, as it were, Upper and Lower Canada, which, to a certain extent, were divided into hostile comps, that good government had become impossible. The
commerce of the country was in a deplorable condition; the financial condition of Canada was anything but such as would afford gratification or satisfaction to any person interested in the welfare of the country; and the credit had sunk so low, that 6 per cent debentures were only saleable at a ruinous discount. Under this condition of things, a decision was arrived at between the leaders of the great parties of which Canada was then composed -- the Liberal and Conservative parties -- to unite in an effort to change the constitution of Canada, either by arranging a federal union of Upper and Lower Canada, or a confederation of all the provinces. That question was submitted to our consideration at Charlottetown. The additional fact presented itself, that as Canada stood, for six months in the year it was shut out from any communication to the ocean, except through a foreign country, while in the maritime provinces our trade naturally was forced into United States channels, because we had no means by rail of intercommunication, or of carrying on trade with the old province of Canada. We listened to the statements made by the late lamented Right Hon. Sir John A. Macdonald, and by the late lamented Hon. George Brown, who were the leaders of the delegation that came to us on that occasion. And when they presented to us the position in which Canada stood, and when we considered the whole question, we felt that it was incumbent upon us to make an effort to see if the political position of all British North America might not be ameliorated and greatly enhanced by the adoption of the policy of union. Now, I do not intend to take more of your time than is necessary in reference to that matter, further than to say that, having arrived at that conclusion, we adjourned the question of a legislative union of the maritime provinces, and took up the wider and larger question of the confederation of British North America.
The result is known to all the members of this House. In October, 1864, a conference was called under the shadow of the Crown and with the hearty concurrence and approval of the Imperial authorities, and was held at the city of Quebec; and, after considerable discussion, in which several of the provinces were represented, the general principles of the union were arrived at. I am sorry to say that of those fathers of confederation, the only one that I see in this House, besides myself, is my old colleague and friend, Sir Hector Langevin; and he will bear me out in the statement that there was no feature of that conference which impressed itself more deeply upon those who wished to see the British North American provinces place in an improved position -- in a position that would guarantee their being able to hand down to their children and their children�s children the British institutions they enjoyed -- there was no consideration that had greater significance or greater importance in the minds of all the delegates present on that occasion than that this measure afforded the means of removing that antagonism of race and religion which had been found to act so fatally in reference to the interests of Canada. I need not remind you that subsequently, at the Westminister Palace Hotel in London, in the year 1886, the governments of Canada, Nova Scotia and New Brunswick found themselves in a position to act under the parliamentary authority they had received, and that measures were there accomplished which enabled an Act to be passed through the Imperial Parliament changing the constitution of British North America, and uniting under one government the provinces of Canada, which were then separated and known as Upper and Lower Canada, and the provinces of Nova Scotia, and New Brunswick, with powers under which not only the great territory of the North-west and the distant province of British Columbia, but also the islands of Prince Edward and Newfoundland, might be brought into one confederation; so that there should be a consolidated government for the whole of British North America. That object was steadily pursued, and that object has been attained, except as regards the Island of Newfoundland, which, I still venture to hope may at no distant day round off this confederation by becoming a part of the great whole of British North America. I need not detain the House to detail the wonderful change that ensued in every part of Canada. I need not detain the House while I point out that Canada rose rapidly to a status that had never before been occupied by any British colony or any outside portion of the British Empire. I need not remind you that, so far as government is concerned, Canada is practically independent. I need not remind you that, so far as measures relating to the internal life of Canada are concerned, we have practically the uncontrolled administration of our own affairs. I need not remind you that the status which Canada has attained has enabled her to be admitted as an integral portion of the great international conventions that are held throughout Europe -- that at the international conference held in Paris in 1883 for the protection of submarine cables, Canada was as fully represented, and occupied a position in every respect equal to that of Belgium or Germany or any of the other great powers represented there. I need not remind the House that under this improved status, foreign affairs touching Canada are to a large extent placed under our own control -- that arrangements have been made, with the hearty approval and assent of Her Majesty�s Government, by which Canada practically negotiates her own treaties, with the advice and assistance and support of the great Empire of which we form a part. I need not remind the House of the wonderful material advancement and progress which Canada has made. I need not call attention to the fact that whereas, when this question
of confederation was taken up, there was no railway connection even between Nova Scotia and New Brunswick to-day, from the eastern shores of Cape Breton on the Gulf of St. Lawrence away across to the Pacific Ocean, you may pass without leaving the car in which you have taken your passage. The development, the progress, the prosperity of this country has transcended anything that the most sanguine gentleman entertained in reference to what this great confederation would accomplish. The illimitable wilderness of the great North-west has been opened up by our transcontinental line of railway; and to-day, although some of our more sanguine expectations have not been realized, we are in a position to show that in this desert of yesterday more wheat was grown during the past year than in the whole of the United Kingdom. I give that as an evidence and indication of the position we have attained. Not only is that the case, but it was only a short time ago that the city of Ottawa witnessed one of the most striking events that has ever taken place in the history of any British colony, or in the history of any colony of any kind in the world. It was only the other day, as it were, that the wonderful scene was presented of the great colonies of Australia, New Zealand, South Africa and Canada being united in a conference and conclave here. Not only so, but that conference was attended by a distinguished representative of the Imperial Government, who took part in it, and who recognized it as one of the most important and transcendent events that had ever occurred in any part of the British Empire. I need not draw your attention to the fact that on that occasion you had the Imperial Government recognizing that Canada was a great highway -- that under the wonderful progress and development she had made, she had become a great highway of intercommunication between England and the colonies of the Empire on the east and those on the west -- between Hong Kong and Australia. In connection with those proceedings, we have had the gratification to find that the Imperial Government is at last thoroughly enlisted and pledged to the support of the means by which the intercommunication between the United Kingdom and those colonies shall be effected, in connection with the fast Atlantic service and the cable communication to be established via Canada with Australia. In fact, we are in a position to obtain at the hands of the Imperial Government substantial aid and assistance and co-operation in taking advantage of the great position we now occupy.
I spoke a few moments ago of the deplorable condition of the credit of Canada at the time this confederation was undertaken and accomplished. Instead of the 6 per cent bonds of Canada being away down, and sold at a ruinous discount, we have had the pleasure of finding, after all these great improvement, many of them of a very costly character, the credit of Canada so enhanced that our 3 per cent, when I left England, were standing at a premium of about 8 per cent. I give that as additional evidence. As I have referred to the distinguished nobleman who represented the Imperial Government at the Colonial Conference at Ottawa, I may be permitted to read a single sentence that fell from Lord Jersey on that occasion. He said:
It is with wonder that I think of what Canada has done to bring the northern and southern parts of this Empire together. She has linked the two great oceans, after an exhibition of courage, statesmanship and skill, which has never been surpassed in the history of the world.
And when I was sent to communicate with the government of the great republic to the south of us at Washington, Mr. Bayard, the eminent statesman who now represents the United States of America at the court of St. James, said to me: The confederation of Canada, and the construction of the Canadian Pacific Railway have brought us face to face with a nation, and we may as well regard the question from that point of view. Instead of being isolated, separated, weak, even antagonistic provinces, they recognize the fact that we have become united, under one Government, in one great whole, and that we possess in the northern portion of this continent of North America, a boundless field for advancement and progress; and many of the eminent statesmen of the United States have again and again drawn attention to the wonderful progress, wonderful development, and wonderful position which Canada has attained. I draw attention to that for the purpose of coming more particularly to the point now under consideration.
Some hon. MEMBERS: Hear, hear.
Sir CHARLES TUPPER: And hon. gentlemen will see in a moment, if they will indulge me with the opportunity, the point to which I wish to call their attention. There would have been no confederation -- I say it in the presence of my colleague who was at the Westminster Palace Hotel, I say it within the knowledge of Sir Leonard Tilley, who was one of the fathers of confederation, of the Hon. Peter Mitchell, who was at that conference, of the Hon. Wm. Macdougall, and the Hon. Sir Wm. Howland; I say it within the knowledge of all these gentlemen, for six of us still, I am glad to know, remain -- that but for the consent to the proposal of the Hon. Sir Alexander Galt, who represented especially the Protestants of the great province of Quebec on that occasion, but for the assent of that conference to the proposal of Sir Alexander Galt, that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant in this country, there would have been no confederation. And I draw attention to the fact that when you contrast our present position with that
which Canada occupied on the occasion where Mr. Geo. Brown and Sir John A. Macdonald felt impelled, by the necessities of the case, by the condition of their country, to seek some change in its constitution which would relieve it from the terrible consequences of that war of religion and races that had been maintained in old Canada down to that time, it is significant that but for this clause protecting minorities, this measure of confederation would not have been accomplished, and no man could say how humiliating might not have been the position, either of Canada or any of the smaller provinces if that great work had not been accomplished. In the very valuable, although fragmentary, work of Mr. Pope which I have in my hand -- the history, so far as he could glean it from the documents left by the late Sir John A. Macdonald, of the establishment of confederation, I find the proposition made by Sir Alexander Galt on that occasion, made in the interests, not of Roman Catholics, but of the Protestants of Quebec, demanding that there should be embodied, as a �sine qua non� to his agreeing, or to the Protestants of the province of Quebec agreeing to any confederation being accomplished -- I find there the facsimile of the resolution which Sir Alexander Galt drafted with his own hand, and which was embodied in the Confederation Act. I say, therefore, it is important, it is significant that without this clause, without this guarantee for the rights of minorities being embodied in the new constitution, we should have been unable to obtain any confederation whatever. That is my reason for drawing attention to it at present. Now, I propose to read the terms of that provision whereby the protection of minorities, whether Catholic or Protestant, in any province of the Dominion, should be maintained. The third subsection of the 93rd section of the British North America Act of 1867 says:
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.
Whether that applies to, or how far that bears upon the question under consideration in regard to Manitoba, it is not essential for me to inquire, because, in the Manitoba Act, which forms the law under which that province came into confederation, it was provided by the 22nd section:
In and for the province of Manitoba the said legislature -- that is the provincial legislature -- may exclusively make laws in relation to education, subject and according to the following provisions.
I draw special attention to this, because it touches the fatal objection, as I understand it, that is entertained by many persons who have not had the opportunity, or who have not availed themselves of the opportunity, of ascertaining precisely the position in which this question stands, that if the Government of the Dominion, under any circumstances, interferes in the question of education with regard to the province of Manitoba it is coercing the province of Manitoba, and interfering with the autonomy of that province. It is the very reverse. As the Act itself provides, the Manitoba legislature may exclusively make laws in relation to education, subject and according to the following provisions:
Nothing in 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.
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.
In case any such provincial law, as from time to time seems to the Governor General 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 in Council under this section.
I think it would be impossible to find any terms in the English language that would more thoroughly establish the position that the exclusive right of the province of Quebec, or the province of Ontario, or the province of Manitoba to legislate in reference to education is confined to the case in which they have not taken away any of the rights enjoyed by any one of these provinces at the time they entered confederation; that is to say, that if it can be shown that any right enjoyed by any province at the time it entered confederation has been infringed upon, if it be shown that the privileges that were enjoyed under that right, whether by Roman Catholics or Protestants, have been interfered with and removed, the moment that took place, under the Imperial Act of Confederation, under the law as it stands upon the statute-book, the right is transferred �ipso facto� from the local legislature, because the local legislature hold that exclusive right, subject to the fact that they shall not invade the privileges of the minority, to the Parliament of the Dominion. And holding that under these circumstances, the moment it can be shown that the provincial legislature have invaded that right and have used the power entrusted to them contrary to the spirit of the Act of union, the Imperial Act of 1867, and to the law
under which Manitoba came into the confederation -- the moment it can be shown that the rights and privileges enjoyed have been infringed, that moment their power to legislate exclusively in regard to the question ceases and is transferred ipso facto to the Parliament of the Dominion of Canada. I would not say that I would hold that to be an incontrovertible position if I were not fortified in it by the highest authority in the British Empire, the Judicial Committee of the Privy Council. The Dominion of Canada in its federal constitution has a great advantage in two respects over the federal constitution of the great republic to the south of us. There, as you know, the central power was built up by the sovereign states each consenting to give a part of the power it enjoyed, retaining for itself everything that was not specifically yielded. When we met in Quebec to frame a constitution for the Dominion of Canada, we had the advantage of many years of experience in the actual working of the constitution of the United States, and availing ourselves of that experience, we reversed their method and provided that the local legislatures of all the provinces should be restricted to the exercise of such powers as were specifically defined by the law as appertaining to them and that everything else should belong to the federal authority. Had that been the constitution of the United States of America that people would have been spared the sacrifice of a million lives and untold treasure in maintaining their union against the results of the defect in their constitution.
But there is another respect in which we have an advantage, and I hold that it is a very great and very significant advantage -- and that is while the United States have a supreme court by which questions of controversy in regard to the rights of the state governments and federal governments are to be settled, that court does not hold the position and does not offer the advantages of the Judicial Committee of the Privy Council in relation to Canada. That court is composed of men who are placed in their judicial position by the governments of the day, so that in that court you may have a great preponderance of gentlemen who have held prominent and important political positions in the country just previous to their going upon the bench. I have no hesitation in saying that I believe that the supreme court of the United States enjoys the confidence not only of the United States, but of the world to a very large extent, that it is regarded as a tribunal of the very highest, most important and most impartial character and that its judicial decisions have very great weight. But it cannot be forgotten that those who take part in controversies between the United States and any of the states of the union, those who have cases adjudicated upon involving questions of state against federal rights will too often be apt to believe that the strong party proclivities of the judges have something to do with the decision. Happily for us, that is not our position. Our ultimate court of appeal, is a tribunal which is not only regarded throughout the civilized world as one of the most independent, most able and most impartial tribunals it is possible to find in any country in the world, but that it is a tribunal which stands apart from and beyond and above anything that touches political questions or considerations in Canada and that therefore you can look to that tribunal with unqualified confidence that it will give a decision upon which any person and every person may rely.
Now, Sir, I will draw attention to some statements made by this august tribunal the Judicial Committee of the Privy Council upon the question before us. And I will only read a few brief extracts in regard to it, because I know that the whole judgment is before hon. members on both sides of the House:
(4). Does subsection 3 of section 93 of the British North America Act, 1867, apply to Manitoba?
(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 a privilege in relation to education" within the meaning of subsection 2 of section 22 of the Manitoba Act, or establish a system of separate or dissentient schools, within the meaning of subsection 3 of section 93 of the British North American Act, 1867; if said section 93 be found 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 there-under to the Governor General in Council?
There was the pith of the whole thing. As the constitution provides that it is only in cases where the rights enjoyed upon entering the union are infringed upon and interfered with that the duty is thrown upon the Dominion Government and the Dominion Parliament to take steps to protect these rights and restore these privileges, the whole issue turns upon the question just there asked. They say further:
The 3rd subsection of section 22 of the Manitoba Act is identical with the 4th subsection of section 93 of the British North America Act. The 2nd and 3rd subsections respectively are the same, except that in the 2nd subsection of the Manitoba Act the words "of the legislature of the province or" are inserted before the words "any provincial authority" and that the 3rd subsection of the British North American Act commences with the words; "Where in any province a system of separate or dissentient schools exist by law at the union, or is thereafter established by the legislature of the province."
Their lordships say, as delivered by the Lord Chancellor:
In view of this comparison, it appears to their lordships 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 North America Act. Obviously all that was intended to be identical has been repeated, and in so far as the provisions
of the Manitoba Act differ from those of the earlier statute, they must be regarded as indicating the variations from those provisions intended to be introduced in the province of Manitoba.
They then come to the gist of the question :
In Upper Canada, a general system of undenominational education had been established, but with provision for separate schools to supply the wants of the Catholic inhabitants of that province. The second subsection of section 93 of the British North America Act extended all the powers, privileges and duties which were then by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Roman Catholic inhabitants of that province to the dissentient schools of the Protestant and Roman Catholic inhabitants of Quebec. There can be no doubt that the views of the Roman Catholic inhabitants of Quebec and Ontario, with regard to education, were shared by the members of the same communion in the territory which afterwards became the province of Manitoba. They regarded it as essential that the education of their children should be in accordance with the teachings of their church, and consider that such an education could not be obtained in public schools designed for all the members of the community alike, whatever their creed, but could only be secured in schools conducted under the influence and guidance of the authorities of their church.
Then they continue :
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 lordships� opinion weaken, but rather strengthen the views derived from the study of the later enactment.
It is admitted that the 3rd and 4th subsections of section 93 (the latter of which is, as has been observed, identical with subsection 3 of section 22 of the Manitoba Act) were not intended to have effect merely when a provincial legislature had exceeded the limit imposed on its powers by subsection 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 legislature of the province.
I think it will be impossible to find language clearer, or more unmistakable, to establish the position that their lordships have taken that the right and privileges of the Roman Catholic minority in the province of Manitoba have been invaded by the legislation of that province ; and as I have said before, the moment that conclusion is arrived at, the power given them under the Education Act exclusively to legislate on the subject of education, is removed, and is transferred to the power of the Dominion Parliament:
Their lordships are unable to concur in the view that there is any presumption which ought to influence the mind one way or the other. It must be remembered that the provincial legislature is not in all respect supreme within the province. Its legislative power is strictly limited. It can deal only with matters declared to be within its cognizance by the British 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 specified in section 92 of the British North America Act, and not falling within those set forth in section 91, the exclusive power of the provincial 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. **** Acts amending the educational 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 board of education was fixed at no 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 purposes 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 5 and 15 residing in the various Protestant and Roman Catholic school districts in the province where schools were in operation. With regard to local assessments for school purposes it was provided that the rate payers 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. **** What is the position of the Roman Catholic minority under the Act of 1890? Schools of their own denomination, 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 Catholic 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 that 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. **** As a matter of fact, the objection of the Roman Catholics to such as alone receive state aid under the
Act of 1890, is conscientious 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 enactments which have been the subject of so much controversy and consideration would have been unnecessary. It is notorious that there were acute differences of opinion between Catholics and Protestants on the educational question prior to 1870. **** For the reasons which have been given, their lordships are of the opinion that the 2nd subsection of section 22 of the Manitoba Act is the governing enactment, and that the appeal to the governor General in Council was admissible by virtue of that enactment, on the grounds set forth in the memorials and petitions, inasmuch as the Acts of 1890 affected rights or privileges of the Roman Catholic minority in relation to education within the meaning of that subsection. The further question is submitted whether the Governor General in Council has power to make the declarations or remedial orders asked for in the memorials or petition, or has any other jurisdiction in the premises. Their lordships have decided that the Governor General in Council have jurisdiction, and that the appeal is well-founded, but the particular course to be pursued must be determined by the authorities by whom it has been committed by the statute. It is not for this tribunal to intimate the precise steps to be taken. Their general character is sufficiently defined by the 3rd subsection of section 22 of the Manitoba Act. *** All legitimate grounds 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 lordships will humbly advise Her Majesty that the questions submitted should be answered in the manner indicated by the views which they have expressed.
Then the Queen�s Order in Council follows, and I will read a clause of that:
The Lords of the Committee in obedience to Your Majesty�s said general order of reference, have taken the said humble petition and appeal into consideration, and having heard counsel for the parties on both sides, their lordships do this day agree humbly to report to Your Majesty as their opinion that the said questions hereinbefore set forth ought to be answered as follows:
(1). In answer to the first question: That the appeal referred to in the said memorials and petitions, and asserted thereby, is such an appeal as is admissible under subsection 2 of section 22 of the Manitoba Act, 33 Vict. (1870) c. 3, Canada.
(2). In answer to the second question: That grounds are set forth in these petitions and memorials, such as may be the subject of appeal under the authority of the subsection of the Manitoba Act, immediately above referred to.
(5). In answer to the fifth question: That the Governor General in Council has jurisdiction and the appeal is well founded, but that the particular course to be pursued must be determined by the authorities to whom it has been committed by the statute; that the general character of the steps to be taken is sufficiently defined by subsection 3 of section 22 of the Manitoba Act, 1870.
(6). In answer to the sixth question: That the Acts of Manitoba relating to education passed prior to the session of 1890, did confer on the minority a right or privilege in relation to education within the meaning of subsection 2 of section 22 of the Manitoba Act, which alone applies that the two Acts of 1890 complained of did affect a right or privilege of the minority in such a manner that an appeal will lie thereunder to the Governor General in Council. ***
Her Majesty having taken the said report into consideration, was pleased, by and with the advice of Her Privy Council, to approve thereof, and to order as it is hereby ordered, that the recommendations and directions therein contained by punctually observed, obeyed and carried into effect in each and every particular. Whereof the Governor General of the Dominion of Canada for the time being, and all other persons to whom it may concern, are to take notice and govern themselves accordingly.
I think no argument is called for in the face of this emphatic judgment of the Privy Council, the highest tribunal in the great Empire to which we have the honour to belong, in order to show, if the claim on the part of the government of Manitoba to exclusively legislate on the question of legislation is raised, that, under the decision of the Judicial Committee of the Privy Council, by the legislation passed by the province of Manitoba, they deliberately denuded themselves of the right to exercise exclusive jurisdiction on the question of education ; and no man, I hold, whether legal or layman, can read therein the emphatic statements made by the Lords of the Judicial Committee of the Privy Council without arriving at the conclusion that the responsibility and the duty were transferred from the legislature and government of Manitoba and imposed on the central Government of the Dominion and on the Parliament of the Dominion to legislate in respect to this case.
But, Sir, it may be said, and I am rather surprised to hear a statement of that kind made: But the law ways "may," it does not say "shall." Is there any hon. member within the sound of my voice who will say, that, on a ground of that kind, you will turn your back on a helpless minority who are struggling for their privileges, of which they have been deprived by the local government, and will say: Yes, it is quite true that the lords of the Judicial Committee said we may do it, but they did not say we shall do it: and we intend to leave you to suffer in the face of the decision of the highest judicial authority that can be given in the Empire? A position of that kind would be unworthy of the government of any civilized country. I hope no body of gentlemen who are entrusted with the high position of administering the Government of Canada, will ever shelter themselves behind a subterfuge so plain and transparent as that, and avoid that duty and that responsibility which have been thrown upon them in regard to one of the most vital, one of the most important questions that can ever be presented.
Sir, I have already told you that this clause was insisted upon in the interest, not of Roman Catholics, but of Protestants. I have told you we would have had no confederation, the whole matter would have ended in hopeless failure, if we had refused to embody this protection for the Protestant minority in Quebec, as represented by Sir Alexander Galt. My colleagues who where there on that occasion, will bear me out in the statement, that so emphatic was Sir Alexander Galt on that question, that, until the conference would agree to adopt that policy, he was no prepared to take any hand or part, or assist in any way whatever in accomplishing confederation.
Sir HECTOR LANGEVIN: Hear, hear.
Sir CHARLES TUPPER: I say, moreover, that, not only was this done in the interest of Protestants, but the valuable,
though brief, compendium of the circumstances connected with confederation which Mr. Pope has recently published, shows that it was carried unanimously, that the provinces of New Brunswick and Nova Scotia and the province of Canada all voted yes in favour of this provision, which was for all time to come to protect the rights of the minority, whether Catholic or Protestant.
But I say that, independent of the Judicial Committee of the Privy Council altogether, there is a higher law, and that is the great law, that you should do unto others as you wish them to do unto you. I believe that public sentiment of this country, when fully advised of the true position of this question, when considered in the light of history, in the light of evidence, that the overwhelming judgment of all classes and all creeds will be, that the Government of Canada would be unworthy of the position it occupies, that the Parliament of this Dominion would be unworthy of the position it occupies, if it turned deaf ears in a case made clear and established and declared in terms so unmistakable by the highest judicial tribunal in this Empire.
Mr. Speaker, one of the highest and most distinguished educationists in the Dominion of Canada, who himself is a Protestant and a Presbyterian, has given a clear and emphatic enunciation of his views on this question -- I refer to Sir William Dawson. Sir William was many years a superintendent of education in the province of Nova Scotia, and form that post he has risen, step by step, and point by point, until he has attained one of the most exalted and respected positions among educationists throughout the world. The British Association did him honour, did itself the honours, to elect him as its president, in consequence of his great educational attainments. I need not tell any one who knows anything of Sir William Dawson, that he is a man who is not only a Protestant, but a Presbyterian of the sternest sect, and yet Sir William has declared, unwilling as these men usually are to take part in a discussion of this kind, and has published, over his own signature, the most clear and emphatic declaration it is possible for a man to publish, as to the absolute necessity, in the interest of good government, and in the interest of justice and fair play towards different religions and races, that, in taking the steps which the Dominion Government have most reluctantly taken, and have been impelled to take only by a sense of the duty that devolves upon them, they have the warm, the emphatic, approval of one of the most distinguished Protestant educationists to be found in the whole Dominion of Canada.
I may say here, that I have detained the House for some little time in regard to what has been acomplished by confederation. I have felt warranted in doing it because I was in a position to show that this confederation would not have been an established fact without embodying in the law that protection of the rights of the minority, both Catholic and Protestant, which it does embody, and, therefore, it was worth the expenditure of some little time of the House, in order that the attention of hon. members -- especially as many of those taking part in those negotiations are not now remaining -- should be drawn to this very important point.
In speaking of Sir William Dawson, I named him as a very eminent educationist, but I do not mean to say that our position rests only upon this high authority. I have had the satisfaction of meeting with and receiving communications from a large number of eminent divines, in the Church of England, in the Presbyterian Church, in the Wesleyan Methodist and Baptist churches, and I have been gratified to find, that those gentlemen, with scarcely an exception, were ready to endorse the action of the Government of Canada, to sustain the action of the Parliament of Canada, in giving redress to any minority, whether Catholic or Protestant, whose clear, unqualified and established rights had been infringed by the local government of any province.
But I say, Sir, apart from that altogether, apart from the responsibility that is imposed by the law -- for I hold that the responsibility is imposed by the law in the clearest and most emphatic terms -- apart from that altogether, I put the issue to the people of this wide Dominion. I ask them to look at what has been accomplished since the Act of Confederation was passed in 1867. We have been a happy family, Sir. I refer not to one political party nor to the other political party, but I do say : the people of this wide Dominion, whether Catholic or Protestant whether French or English or Irish, whatever their race, whatever their religion; I say that the people of this wide Dominion have been a united, a happy and a prosperous people. By united action our people have raised Canada to a position of which every Canadian may be justly proud. If there be any man to be found in Canada who from any narrow, any selfish, any
exclusive, any bigoted, or any fanatical sentiment would yield for a single moment to a disposition to advance his own race, religion or sect at the sacrifice of the interest and the conscience of others: if there be any such man, I ask him to look back at the deplorable condition into which Canada had sunk when she yielded to that sentiment, and when we had in this country a great party fomenting a war of races and a war of creeds. I ask such a one to look back upon Canada at that unhappy period, and I ask him to raise his eyes to the present proud position that our country occupies. I ask him to inquire from himself as to the reason for all this progress, all this prosperity, all this high position that we have obtained throughout the civilized world -- for it is not extravagant to use that term in regard to Canada. I ask such an one if he is prepared to re-open a war of races, and a war of creeds, because he wishes to deny to a small and helpless Roman Catholic minority in the province of Manitoba the rights which the Imperial statute and the law under which Manitoba came in the union have guaranteed to them should be preserved. I care not who the man is; I care not which side of the House he sits on, I say that the Canadian who, with the history of the past to guide him, can for any such purpose be willing to lend his hand to promote and countenance in any way or shape a war of races and a war of religions, and a war of creed, is an enemy of Canada. He may be acting from the highest and most conscientious principles. He may regard, as many do regard, that this is a question of separate schools, and that he is opposed to separate schools, and consequently he may wish to defeat this measure that is now proposed to the Parliament of Canada. But, Sir, no man who takes the trouble to examine this question can for a single moment consider that the question of separate schools is at issue at all. It is not a question of separate schools, it is a question of the constitution of the country. The progress and prosperity and the future development of Canada depends upon that constitution being sacredly maintained, and that all the right that are guaranteed under it, whether to the central or the provincial governments, shall be sacredly guarded. I do not intend to detain the House by discussing this self-evident point at any great length, but I put it to any intelligent man who recognizes the fact that within this wide Dominion you have got over 41 per cent of the population Roman Catholics; I put it to gentlemen who may hold -- and I think some have without due consideration held -- rather narrow views on the subject; I put it to them: whether for any object that was not of the most transcendent importance it would be right for this Government to refuse, or right for this Parliament to refuse, to grant redress in a case such as is presented on the present occasion, and to leave rankling the minds of over 41 per cent of the entire population of the Dominion of Canada the sentiment that a Roman Catholic cannot, in the Parliament of this country, obtain the same just consideration that he would obtain if he were a Protestant. I thank you very much for the kind attention you have given to these very imperfect remarks. I must say that in forming this Bill the Government, while doing substantial justice to the rights of the minority, have been careful to encroach as little as possible upon the local government. No person can read this Bill without seeing on the very face of it that it is not proposed that the Government of Canada should take action under even this Bill, by the appointment of a board, the appointment of the superintendents, the guarantee that the schools shall be of the same high character as that of the other schools in Manitoba, for, before all that is done, this Bill provides, first, to invite the government of the province of Manitoba to take action; and it is only when they refuse, and when the unpleasant and disagreeable duty is forced by the Act of the Imperial Parliament upon the Dominion of Canada, that this Government proposes, in the least degree, to interfere with this matter. And, as I say, the coercion comes not from the Dominion Government. There is no coercion so far as the Dominion Government is concerned. There is not a line of coercion to be found in the Bill from beginning to end. There is a simple, a most easy and natural provision, to meet the interests of these people whose consciences deprive them from the opportunity of making use of such schools in Manitoba as they are now taxed to sustain. Under these circumstances, the Government have been compelled to adopt the policy which they have adopted. I need not say that they have adopted this policy in the face of great difficulty, because it is always an extremely unpleasant thing for any government to find itself in a position in which there is even a single member of their party that does not see eye to eye with them. In the face of even this difficulty, the Government have felt compelled, in justice to their own position, and in regard to their duty to the country as imposed by the Imperial Act, the Government have felt obliged to take the step they have taken. They have taken that step in the most moderate and temperate manner that was possible to be devised, and even down to the present hour they have been open to any suggestion by which the responsibility which is imposed upon them under the circumstances could be removed. They are still open to any suggestion, from any quarter, of any means which will remove the necessity of their being compelled to take action of this kind, and having done that, Mr. Speaker, I have no hesitation in saying to you: that the
Government would feel that it was unworthy the position it occupies; that the Government would feel that it did not deserve the confidence of that great Liberal-Conservative party who have enabled it to accomplish so much for Canada; that the Government would feel that it was unworthy the confidence of gentlemen on either side of this House if, on a question so momentous, so important, and so vital to the good government, progress and prosperity of Canada, they were not prepared to lay down office if necessary, or to refer to the great intelligent electorate of this country for a decision as to whether they had discharged their duty or not.
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Source: Canada. Parliament. House of Commons. Debates of the House of Commons of the Dominion of Canada. 7th Parliament, 6th Session, (January 2, 1896: March 13, 1896). Ottawa: S.E. Dawson, 1896. Pages 2719-2797.