endeavour to adhere to the question as closely as possible and I intend no criticism of those who preceded me or who take different views from those which I take. The question itself is certainly an important one. The educational clauses, have been the features of the Bill principally debated. These clauses are not the only nor may we say the principal item in the Bill. They are, however, the features that have caused the greatest antagonism and discussion. In itself the matter of education does necessarily bring about friction of any kind. It sc happens, however, that a portion of our people have conscientious views in the matter of the necessity of associating religious teaching with the education of the young and when that happens and it will always happen when a religious turn is given to any question there is the greatest necessity for prudence and moderation of speech. Many gentlemen who have spoken in this debate have been careful and prudent. Some of them I have admired very much ; others I am afraid have handled the matter unwisely and in some cases if I may proceed that length in criticism have handled it almost recklessly. It is unfortunate that this should be the case, but I think that the consensus of opinion is that when the matter is handled with any exaggeration of statement the intention of the member is lost, that is the effect of his argument is lost.
The occasion of this Bill is certainly a great event in the history of Canada,* an event which you might almost call a national epoch ; we have reached a time in the history of our country when we can carve out from these Territories two large and important provinces, and such an occasion ought to be one of great rejoicing. It should be an occasion on which we should all unite together with pride in inaugurating these provinces ; it should be such an occasion as one would have in his family say for the coming out party of a daughter or a marriage or the coming of age of a son in whom he has pride, in whom he has great hope and confidence, and it is natural on such an occasion that if it were at all possible all parties should unite together in making it an occasion in which we can drop politics. Unfortunately this event has been marked by a good deal of friction, especially over the educational clauses. In considering such an event it is very natural that the mind should be turned to quite an extent to the progress of our country, that we should turn with pride to the progress we have made, and note how rapidly we are progressing, note to what an extent the commerce and the population of the country have grown, note especially as we listen to the speeches of the various members in this debate the unanimity with which every man speaks with glowing confidence of the future of the country. There is not and has not been a pessimistic note in regard to the future of our country dur-
5181 MAY 1, 1905 5182
iug the wliole of this discussion. The growth of Canada, while not always in the past satisfactory, has of recent years been quite up to our expectations and fully warrants all the optimism that has been shown, and we have not only grown in resources and population, but I think we have grown in intelligence, in richness, and in 'all other marks of progress. And yet, as I consider the treatment of some public questions, it has been a question in my mind whether with all that progress we have quite held our own -I shall not say progressed-but quite held our own in matters requiring deliberfftion and seif-restraint. Possibly it may be a passing phase in our career, but I regret that at the moment there is some evidence cf at least a standing still in that respect. In a country like ours, that is new and young, that has immense territories, that has a sparse population spread over a great area, it is exceedingly necessary that care should be used in all the legislation we bring forward. The cohesion between the different portions of the country is not yet strong 1 the national feeling has not grown possibly, to the extent it should ; we have been so busy in many other respects. Our country is divided in various ways ! we have in the east a fine set of provinces speaking one language. They are partially divided from the next province by a territory which possibly is not fertile or fit for agriculture, and then we come to a province in which another language is spoken. Then we pass on to Ontario and there again we have the English language. Between Ontario and Manitoba there is a portion of territory almost unsettled and so we find breaks as we continue through our country and necessarily that leads to a lack of cohesion between the various parts of it. and it is necessary in all our legislation that we should be particularly careful to avoid anything that would break or strain or separate. This is particularly applicable to questions of the kind that is at present under discussion. The educational features of this Bill are the ones that have aroused the greatest friction, but there are many other important questions involved in it and some of them may have untoward results if they are not carefully handled. In all new proposals that come before one it is natural that some special features in them should first take pre-eminence, that you would first find your mind coming to a decision on certain points, and this has been most strikingly so in the consideration of this question. It sometimes happens that you find that the point on which you first come to a decision is not the point that you should have first decided ; the sequence is not always of importance. It was natural when this Bill was brought in for the formation of two new provinces out of those Territories that our minds should revert to the history of our country, to the time at which those lands became either in the union of Canada or in the possession of Canada, which ever term one may use, to the years 1870 when, by a certain class of pui'chase from the Hudson Bay Company we obtained possession of them, not, I think, as I have heard it stated, by a purchase of these lands from the Hudson Bay Company, but by the purchase of their rights, whatever they were, and by the grant of that country from the Crown to Canada. That country contained a very small population and by the Act of 1871 we were entrusted with the government of it. In the Act, I think, we will agree, that while they were territories we were entrusted with the power to govern them as we saw fit. They were governed under that Act by a lieutenant governor and council. Later on, when the population had grown larger and when the needs of the country were greater, they were given a certain amount -of legislative control of their own affairs, and in the Mackenzie Act of 1875. that was carried to a considerable extent, and they had, even before they became a province, representatives and have representatives in this parliament. Under the Act of 1875, a legislature with certain powers was created there and while full powers were not given, comparatively large powers were given although certain limitations were placed upon the powers granted. Under that legislative power these Territories enacted certain ordinances and among them were those relating to education, and it so happened that in the Mackenzie Act there was a specific reference made to the privileges of minorities in regard to denominational schools and it was under that that these schools were first established. Later on this legislature, acting, perhaps, not under the law of 1875, but it seems to me rather acting beyond that law, or taking power not granted to them by the law of 1875, passed ordinances whie 15 appeared to restrict the privileges given in regard to denominational schools in that territory. Later on it made other changes and we find by the record that the Roman Catholic minority in the Territories made an appeal to the government here at Ottawa, of which Sir John Thompson was then a member, for redress or for the veto of those ordinances. This was not granted, but these ordinances remained in force and certain regulations also passed by their educational council. That state of affairs has continued down to the present time. We are told that on the whole these ordinances have been fairly acceptable. We realize, however, that the law of 1875 has not been fully carried out by the^ ordinances and the regulations now in force. We realize also that we cannot say positively that the schools or the educational regulations are entirely acceptable to the Roman Catholic minority in these Territories. Brit the privileges as under the law of 18 io and these ordinances and regulations have re-
naained to them are existing at the present day, and claim is made and made with great force and I think with a force that should be given proper consideration that it is impossible to grant privileges of this kind, to allow them to remain in force for many years, to allow the people in the country to grow up with them and then to arbitra rily or unnecessarily remove them without grave cause. I "know that it is claimed that the law of 1875 was a temporary law, that it could have been abrogated or repealed by this parliament at any time and that this parliament could do so to-day. That is true, but this parliament has not done so and the law has remained in force. I know also that it is impossible to bind future generations by an Act of the present. I know that the present generation, if it found any special law or even bargain, passed bv our great grandfathers, to be particularly irksome would feel bound to honour it. If it had to be so, if we were positively bound by every bargain, possibly entered into in good faith by our great grandfathers, there would be no progress made in this world, nothing could be changed. But on the present occasion. I do not feel that there have been any special changes in the situation that would warrant us in departing from the policy which has been followed ln. tbe past in regard to the privileges of the minority in the Northwest Territories. I feel that if I were in a legislative body that was properly empowered to deal with the matter and I felt assured of the power of that legislative body to deal with it. and this question coming before me, it would be impossible to pass over the vested rights, if I may call them so. and the customs of thirty years unless there could be shown the very gravest reasons of state for doing so. I was interested a short time ago in a discussion which I had with a Roman Catholic friend in regard to these schools, to hear him say that although there had been a great deal of legislation from time to time and although apparently privileges were given to Roman Catholic minorities in regard to schools they had failed to get what they expected or what they thought the law gave them and that it was the shadow and not the substance which they had obtained. I was rather surprised a't that declaration and I endeavoured to look into the events in regard to education in the various provinces and see if they would substantiate it. In looking over the legislation m regard to education, first, in the province of Ontario, I felt that the claim was not a good one. In the province of Ontario I believe that the compact of confederation in regard to separate schools has been honourably kept. More than that I find that the law in that respect has been amended in such a way as to increase the usefulness and proper working of the Act in regard to separate schools. When I look into the question as it affects the province of Que-Mr. McIntyre.
bee, and when I listened to speeches such as we have heard from the hon. Minister of Agriculture (Mr. Fisher) and others, I realize that the compact there has been honourably kept in regard to minorities. When I look into the question in regard to th'e provinces of New Brunswick and Nova Scotia, in which no special provision had been made and in which at one time there appeared to have beeii a little friction I realize that a modus Vivendi has been found, that, as far as we can judge is satisfactory , so t)liat in all thcsG provinces there appears to be no ground for this complaint that I refer to. But, when I come to Manitoba and the west the question takes on a different appearance. Our Roman Catholic friends claims, and I am afraid they claim with a considerable amount of force, that they have not received entirely what they are entitled to, and I cannot say that the record in the province is satisfactory in regard to the form assumed by the legislation, or in regard to the reasonable way in which the legislation has been introduced, or in regard to the way in which the compacts of legislation have been adhered to. And when I come to the Northwest Territories that are in question now and consider the privileges given by the law of 1875 and the infringements, if I may call them so. of these privileges by the later ordinances, I say again there is some ground for the complaint. In the consideration of the question it struck me that there is a reason and that reason, I think, is largely found in this fact that the provinces coming together and specifically entering into a bargain as provinces, knowing what they had to do, have honourably kept that bargain, but when you come to provinces such as Manitoba and the Territories of the Northwest, who. themselves, have not been parties to' the bargain, and who have been legislated for rather than legislating for themselves, there is a difference in their attitude. There is an antagonism against any restraints we may put upon them, and I think in the very action of this province and these Territories, there is a warning to us as to the manner in which we shall be wise to deal with them and with this question.
When this Bill was first brought forward in the very able speech by the Prime Minister, I thought possibly from the remarks of the leader of the opposition that it might not lead to much political antagonism, but. that hope was not borne out by subsequent happenings. Some striking events followed the introduction of the Bill. There was in a portion of our country quite an agitation against it, and perhaps the most remarkable thing that happened was the resignation of the Minister of the Interior (Mr. Sifton) on account of his ob:ection to the first draft of the Bill. That was even a more marked event than would have been on the resignation of some other member of the government, because of Mr. MAY 1, 1905
Sifton's close connection with the new provinces and his previous record on educational matters in that part of the country. Naturally we watched events with a very great deal of interest indeed, and I have been almost amused at the reasons advanced by many Conservative speakers for that resignation; reasons which showed a very great versatility of imagination. We were even told by these gentlemen that the whole matter of the resignation and of his ultimate support of the Bill was prearranged for effect. I cannot conceive that this could possibly have been the case, but it did strike me that if these gentlemen had said that the Minister of the Interior (Mr. Sifton), who very naturally was interested in that country and who had done much to encourage large immigration into it, had taken the course he did with the object of advertising that country, these gentlemen might have been using their imagination very freely, but they would have recognized at all events the result that has actually occurred. One thing at least has come out of this unfortunate trouble and that is, that these new provinces have had a more magnificent series of advertisements than any part of Canada has ever had before. Every hon. member who has spoken has dwelt on the magnificent resources of that territory, its scope for development and progress, and out of our tribulation has resulted this good, that the minds and thoughts of all people will be directed towards the development of this rich portion of our heritage. But, Sir. while the resignation of the minister (Mr. Sifton) caused us anxiety we still were in hopes that some means would be found by which the apparent divergent interests would come together. I do not say that we felt that the decision on this question must stand between the ex-minister and the government and that we must not think for ourselves, but it was very natural that we should consider that the minister (Mr. gif-ton) represented very largely one view, and that the government represented the other. And so. Sir, we waited for the outcome. At that time I presume the hon. gentleman (Mr. Sifton) did not,-stand alone, but that there were many other Liberals who felt more or less doubtful about the Bill, or possibly who wore not sure as to the extent to which it went in giving privileges to the minority. I may say that at that time in whatever opposition I myself felt towards the Bill I did not feel so much alone among the Liberal members as I do to-night. My misfortune is that in the changes that have been made the government has rather pleased those who felt with the ex-Minister of the Interior and has overlooked that particular objection that stands in my way. However. Sir. I listened with great interest to the explanation made by the hon. gentleman (Mr. Sifton) when he eventually supported the amended Bill and I have listened with great interest to the
various speeches of members from the Northwest with regard to the character of the schools. I will not take up the time of the House in reading extracts from their speeches, although I had thought of doing so, but you will all agree with me that their speeches as a rule pointed out how almost completely national these schools were and how exceedingly limited was the time devoted to religious training, or, if I may put it in another way, how exceedingly small were the privileges granted to the minority. I am not exaggerating when I say that this was the general colouring of the speeches delivered along that line, and indeed I may say that from the evidence presented it does appear to me that they are very largely national schools, and that the amount of religious teaching that is available in the last half hour is not very great. As I listened to very many of these speeches I could not but think again of my Roman Catholic friend, of whom I have already spoken, and whether after all it was not the shadow rather than the substance which the Roman Catholics were getting. I would rather think that the claim in support of this Bill should be based, as it is based of course in part, on the actual justice of the case rather fhan on the small amount of the privilege given. Of course I realize that one must take some of these speeches with a proper degree of care. We know that in all bargains, if you listen to the conversation, you will think that the man who is buying is not getting very much, and yet he eventually buys. So it is like that in this case, as in the case spoken of in the good book in which we read of the bargainer: it is naught; it is naught saith the buyer and when he goeth his way he boasteth. And so I am afraid that in this case the parties on the one side speak to a certain audience and the parties on the other side speak to another audience. But if the settlement itself is good that would be satisfactory, and if the people who make the settlement have the right to do so that would be also satisfactory. The more the hon. gentlemen minimize the privileges that are given to the Roman Catholic minority in these schools, the less interest would there appear to be to take any risk with regard to the constitutionality of the proceeding. Personally I have no desire to accept the present Bill just because it gives little to the Roman Catholic minority. If the present arrangement is a compromise which gives justice that would be well, for a compromise is not necessarily wrong so long as it is not an actual compromise of principle. However, it is necessary that the proper people should enter into a compromise, or do whatever justice may _ be necessary. In this case we do not positively know that this Bill is acceptable to all. We find at least that the Roman Catholic archbishop, who is nearest, as I understand. to that portion of the country, objects
that sufficient is not given to his people, and in this case we do not know who, in the negotiations that went forward, represented the Roman Catholic people. If we are going to do justice we should be sure indeed that we have the right to do it. We may go abroad and see a quarrel between two persons on the street and we may actually know what is the right settlement between them, but it does not necessarily follow we are empowered to enforce that settlement. We must be sure not only that our settlement is just, but we must be also sure that we are the right authority to make that settlement. And when we consider that phase of the question it brings us up against a fact we must all realize: that there is a constitutional and a legal feature of this question that has to be settled before we determine whether a particular compromise is a fair and just one and should be enforced. We must know that we are properly empowered to make that compromise, to make that settlement and to pass an enactment legalizing it. Other questions such as the merits of the schools and the justice of the settlement may follow, I claim that it is not quibbling on a point of law to say that it is essential in this case to It now that we should be first sure of our ground; that we should be first sure we are actually on the rock of the constitution before we undertake to pass a law of this kind.
It is not enough to say that the end will justify the means, that the settlement we believe is just, and therefore we will put it through in any case. I am not afraid to face the constitution lest it should give more to Roman Catholic minorities than the present Bill. To say to me that the Bill gives little to Roman Catholic minorities is not in itself a recommendation. I am not seeking to find how little I can give to the minority in this case, but I am urging on the government the desirability of ascertaining exactly what the constitution does give. If the constitution itself, according to the decision of the courts should give more to the minority than the present Bill gives why should we seek to deny that to them ? If it should be found that, owing to the special circumstances of the case the constitution did not apply, and that possibly nothing was given to the minority, then would be the time for us, or whatever body was properly constituted to consider what the merits and the justice of the case might demand.
What is this constitution, then, which I claim should govern in the case, and not merely our ideas of what is abstract justice? It is embodied in the British North America Acts from 1867 to 1886, and when one approaches that constitution at the present time, he finds the path very well worn indeed by those who have recently been there. Those old Acts have been awakened from their slumbers in the library, and have been Mr. McINTYRE.
brought forward at the most unexpected moments. And what do the seekers get '! Very often they simply get what they go to seek for, and they only bring away, I am afraid, what suits or pleases them. There is in them very much of what is definite for the provinces that entered into the confederation compact, but there is a lack of definiteness for territories which are to be made into provinces. As a layman approaches the constitution, the natural question he asks himself is what should be his attitude and what is his duty under such circumstances ? When he is brought face to face with legal and constitutional questions in this House, and when these questions have, as he believes, to be decided upon before he can proceed to decide on other or further steps, it is very natural that he should hesitate, that he should approach these questions with diffidence. He realizes that he is untrained in that class of work ; he realizes that he does not know the law, that he does not know where the law is, that he does not know whether he has the whole of the law or not when he reaches it. He knows that in all lines of work practice makes perfect, and he lacks practice. But he knows also that he has to make a decision of some kind ; he has either to make a decision of his own, or he has to entrust that decision to some one else; and if there is one fault more than another that has in this country been found with politicians, I think it is that instead of trying to decide for themselves, they have always allowed their party leaders to do the thinking for thenj. It may be that, with the greater wisdom and ability of that party leader, that is a wise course, but it is one that is open to reproach. However, while all that is true with regard to the laymen, it is also true that there are certain advantages that come to him in the consideration of such a question. It is usually conceded by the legal men that the ordinary layman has sufficient intelligence to grasp a legal point if it is properly explained to him ; and in this case we have not only the explanation, but we have a full and able debate from the legal men in this House. We have their views on every point argued out very carefully. We have not only the law supplied to us, but we have all the law. We do not need to ask, is there any more that is not quoted to us ? We find that these Acts are in the language which we speak. When we examine them, we find that they are not highly technical in their wording, and as we read we realize that there has been an intention to make them clear. In addition, there is the fact that we are forced to judge in the case, and, as far as the law will allow, to make a decision. We cannot depute that duty to any one else. I may also say, as an encouragement to any Liberal who chooses to think for himself in the case, that we have a good example before us. In the year 1896 the people of this country undertook in a wonderful manner the study
of constitutional law. The Liberal party as a whole studied very carefully indeed, not only constitutional law generally, but constitutional law as it related to education in provinces. They studied and discussed and debated, and formed very strong opinions on that question ; and I may say that my own feelings and views on that question to-night are largely coloured by the debates and the feeling of that time. I have noticed also that the speakers who have discussed this matter, the laymen if not the legal men, have announced that they had no intention of discussing the legal question ; and yet they have not been speaking for more than ten or fifteen minutes before they have been led into the temptation, and have been discussing the constitutional features of the question. While the legal question is discussed by legal men, we laymen have also to consider it as judges. We do not approach the matter as advocates but rather as jurymen, and we have the benefit, in all the arguments which have been presented by the legal men, of what I may call predigested food. I may say also that if legal minds only are callable of arguing and debating and coming to a decision on these questions, it naturally follows that they will reach the same conclusion ; and yet in this instance we find legal men differing just as much as laymen could possibly differ. So that there is no absolute certainty of a proper result from the fact that legal men happen to be arguing the case. However, it is not a matter of preference on the part of laymen. I myself would have preferred very much if this matter had not been left to a decision in this way. I would have preferred that a decision of the courts on these questions had been obtained before the government proceeded to act. I would not claim that a decision of the Privy Council would be necessarily better than a decision of this government or of the Supreme Court of Canada. But it would be a decision of the final court of appeal, and it would be acceptable even by those who did not favour it, and action based on a decision of that kind would -not be attacked-those attacking it would be undermined by the very quotation of such a decision. I regret exceedingly that before this legislation was introduced such a decision was not obtained. To assume that we have the power to act is, I think, unwise in the face of the opposition ; but if we are forced to face it, where then does the battle lie ? We can trust the legal men at least to produce everything in that way. We have sections 93 and 146 of the Act of 1867 brought forward ; we have the Imperial Acts of 1871 and 1886 and the Mackenzie Act of 1875 ; we have the ordinances and the regulations ; and we have such questions as : does section 93 act automatically, and if so when ? Has it been modified, and if so, what is the date of the modification V Has this parliament power to act, and if so, how is it to exercise that power, and must
it exercise it ? We have also the fact that almost all the speakers declare that they are on the ground of the constitution, a very good place indeed to be ; and I must believe that the Act of 1867 is the real rock of the constitution, that .wherever it is applicable it should be the foundation, that at all events the spirit of the Act of 1867 is actually the spirit of the confederation of the provinces which make up this Dominion.
The Act of 1867 was a special bargain between certain provinces which came together to form confederation ; and like all bargains it was made with an eye to the special circumstances immediately before them, each province looking to its own particular interests and safeguarding what it valued the most-refusing to concede anything- likely to injure it. When this bargain was completed, then-ani then only-was provision made for future additions to confederation-for the addition of Newfoundland, British Columbia, Prince Edward Island, Kuperts Land, and the Northwest Territories. They did not make a very specific provision for these additions. . They saw that they might come. They knew the bargain that they had made for themselves, and they thought it would be sufficient to provide that any additions of these other provinces and Territories would be subject to the provisions of the Act they had agreed to. That, I think was the whole spirit of the Act. I doubt if any one of these provinces would have gone into confederation had they been told : We will
make this bargain with you to-day as it stands, but we may to-morrow introduce another element into confederation and deal with it in an entirely different manner and spirit. They evidently considered that the provision ' subject to the provisions of this Act ' was to be the spirit which would govern all future additions to confederation. It is not likely that the different parties then entering confederation had any specific thought in their minds of a territorial form of government in any part of the country before it became a province. That is one of the misfortunes in the case. The law itself is, I think, a very creditable law for the purposes which they had in view ; but like all other laws, it will not at all suit other circumstances and conditions to the same extent, and it is but imperfectly fitted to the present set of circumstances. The trouble with us now is that we are literally trying to bring into this law certain meanings and applications that perhaps were not foreseen or intended at all ; and it is probably a defect of the legal mind that it insists that because this is the law it must be made applicable in some way. It might easily happen that such a law wi:l not in any one case fit the circumstances. The first question we have to decide is whether this parliament has the requisite authority to pass such a law. The question may afterwards follow : Is it irnpera-
tive on us to pass it ? It is evidently conceded that if this parliament has the power to adopt such a law, if it has the power to enact these educational clauses, that power must be found either in section 146 of the Act of 1867 or section 2 of the Act of 1871. Section 146 of the Act of 1867, which has been so often quoted, I may take the liberty of quoting again :
It shall be lawful for the Queen, by and with the advice of Her Majesty's most Honourable Privy Council, on addresses from the Houses of *parliament of Canada and from the houses of the respective legislatures of the colonies or provinces of Newfoundland, Prince Edward Island or British Columbia, to admit those colonies or provinces, or any of them, into the union, and on address from the Houses of the parliament of Canada to admit Rupert's Land and the Northwest Territories, or either of them, into the union, on such terms and conditions in each case as are in the addresses expressed, and as the Queen thinks fit to approve, subject to the provisions of this Act ; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the parliament of the United Kingdom of Great Britain and Ireland.
It seems to me that while this is not very definite with regard to the procedure, the words ' subject to the provisions of this Act ' shows so clearly the intent that in all! future considerations they should not be forgotten or overlooked. I do not think that in any future or subsequent additions to confederation, it was intended or expected that a new or different class of bargain, a new or different class of constitution, should be given, compared with what the different provinces confederated had at that time. That is strongly impressed on my view. Of course I know it is open to discussion, and other clauses come in that must be considered. Section 2 of the Act of 1871, which is known to you all as probably the main clause and which is regarded as giving the powers to enact the present educational clauses of the Bill before us, reads as follows :
The parliament of Canada may from time to time establish new' provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such province and for the passing of law's for the peace, order and good government of such province, and for its representation in the said parliament.
This is the clause upon which those who favour the present Bill, on constitutional grounds base their claim as to the power of this parliament to enact; and there is no doubt that, looking at it in a certain way and from a certain standpoint, it is possible to read such a power within it. We have very different opinions, however, given by very able men upon that question. I shall not read them at length, but we have the opinion of Sir Louis Davies which does not Mr. McIntyre.
concede that power as being granted by section 2 of the Act of 1871. We have the same opinion given by the late Mr. Justice Mills, of the Supreme Court, and we have a contrary one from the late Sir John Thompson. All these are interesting and valuable ; but considering the circumstances under which they were delivered, I do not think we can consider them as specifically definite or convincing. They were very likely political arguments delivered in the course of political speeches and not possibly evidencing as much care as had been recently given this question. We have likewise opinions from very able men indeed at the present time. The Prime Minister of this country no doubt thinks that the Dominion parliament has the power, under this section of the British North America Act of 1871, and should exercise it, or he would not have submitted to us the measure we are now con-' sidering. The ex-Minister of the Interior (Mr. Sifton) thinks also the Dominion has the power, but he prefers that we should not use it. He thinks it should be left to the new provinces ; and he suggests that, in the event of our using it, it would be well to get a confirming Act. The hon. member for Jacques Cartier (Mr. Monk) thinks this parliament has only the power to create a province or call it into existence and to enact all the necessary details in that connection, and that after our powers in that respect are fully exercised, the province comes automatically under the control, of the British North America Act of 1867. We find further that that very able lawyer, Mr. Christopher Robinson, is doubtful whether the Dominion has the power. We find the leader of the opposition saying that we have no constitutional authority to pass the educational clauses. All these conclusions are arrived at from consideration of the same clause, and no doubt all these men have conscientiously come to these different conclusions through a desire to arrive at what is true and correct in the case. If that be so, it necessarily causes some anxiety to one who approaches the question for himself. I have watched with some interest the methods by which, as far as I can judge, these gentlemen arrived at their conclusions. If there be anything specially legal or constitutional in their methods that is shut out from ordinary laymen, then we must ieavo the question entirely to these legal gentlemen. We admire and cannot equal their very skilful method of presenting their arguments, but as far as I have been able to judge their methods of interpretation, I find they make selection of clauses bearing on the subject, I find that each one groups together the features that bear out his contention and draws comparison between the importance of those features and others that are antagonistic to it. There is a certain amount of inquiry as to the spirit of the law. there is an examination of certain words and phrases, and an examina-
tion of the special circumstances of the pre- i sent case and how far the law is applicable i to them, and if I may say it without offence, there is alway an appearance of wisdom, and an impressive appearance of impartial- ( ity. Then while you are still waiting to ] see the constitutional or mental machinery ] put to work, there is suddenly the announ- I cement of a decision which is usually pre- ' faced by ' It seems to me,' ' 1 am of the opinion,' or ' There is no doubt.' <
(Now, while one has been waiting for ; something mysterious .in the manner of . reaching this decision, I think it is abund- ; antly evident that the methods by which these gentlemen reach their decision is just i the ordinary mental process by which any one would reach a decision on such points.
I say there is nothing mysterious, there is nothing that, when properly explained, a business man or a literary man who is accustomed to measure and weigh the meaning of words, could not understand and reach a decision upon although he could not put the argument with the skill of the lawyer. I find, however, nothing unusual in the manner in which they reach these decisions, and we have not found cases cited, or judgments or precedents cited. Acting in that way, and after listening carefully to the debate, one naturally reaches conclusions of his own. Acting so ifar as possible as a juror and not as an advocate, I must say that 1 cannot follow those who find in section 2 of the Act of 1871 plenary power to do any thing in making a constitution without having regard to the circumstances in that country.
I cannot conceive that it is the intent and purpose, the spirit of the Act, that this parliament should be allowed entirely to abrogate the law of 1867, as they would be capable of doing, or that they should make any kind of a constitution different from that proposed by the Act of 1867. They might if possessed of plenary power establish an autocracy, they might make a government up there under one man.
It has been said that there is some indefinite kind of an obligation, that the 'constitution must be in some way analogous to that of other provinces. As you have plenary power, then you may do as you like, and if plenary power had been intended, I think it would have been put in very much more explicit language than it is put in this section. If it had been intended, it could have been put in such a way that we would not have required all this argument to prove it. For myself I have been unable to accept the reasoning of those who claim that section 2 of the Act, 1871, gives this plenary power. If I could, I would not be at a loss as to my position on this question. If I felt that plenary power existed in section 2 of 1871, I would heartily support the present Bill. But after looking at section 2 of 1871, listening to all these arguments, considering
it from all the points of view from which it has been presented and reading it in connection with 146 and 93, I feel it is utterly impossible for me to support that contention.
It may be said that 146 does not give the power. It may be a question as to whether power that exists in 146 has already been used. These also are questions that I would like very much if they had been referred to the courts, andt hat a necessity did not exist for laymen to endeavour to judge of them. We are asked also to consider whether 93 acts automatically. We find the member for Jacques Cartier (Mr. Monk) declaring that it does; we find others declaring to the contrary. 1 believe that 93, like any other class of machinery, works when you supply the propey material. You may invent a machine that will put clothing on a man, but it is necessary in all cases that you bring both the clothing and tire man to the machine; 93 might act automatically in a special case. If 93 acts automatically, why should we put it in the Bill? If it does not, I think the spirit of 93 should control. It might be that a reference to the courts would not satisfy all; but it would have the value that its decision would be respected. If by such a reference we found that greater privileges were due the minorities, then I am willing for one leges should be given. I am willing for one to give all the privileges that the constitution provides for. In considering this section there are certain principles that appear to be stated rather strongly, and the decision on the main point will be guided by the degree of importance which you attach to one or other of these principles. Now, in looking at 93 I find it provides for the exclusive right of legislating on education to the provinces, and also provides for the rights of minorities, with certain exceptions. It reads as follows:
In an! lor each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions :
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 in the province at the union.
I noticed that when the Minister of Agriculture was speaking on that question he : said that the preservation of the privileges . to minorities was there as strongly as the exclusive right to legislate on education. It is indeed a question which many minds will look at in different ways. To my mind ( the chief principle underlying section 93 is ; the exclusive right over education granted i to the provinces, and that exclusive right Is i I think the real point at issue when pro-
* vinces enter the confederation. At all events
* we find that no other body has concurrent right with the provinces. It has been said that this is an exclusive right. It is possi-
, bly an exclusive right within a circuit, but ; no other power has a concurrent right to
legislate either in or out of that circle, and no body has power to make that circle larger or smaller than was prescribed by the Act of '67. The restrictions that are made to this section 93 I do not think take away from the exclusiveness, but rather limit distance. There is another principle in section 93 which I would put before that giving privileges to minorities, and that is that the initial right of legislation on matters of legislation lies with the provinces, that the Dominion parliament never under any circumstances legislates with regard to educational matters in the provinces until the provincial legislature has gone beyond its powers and then only does the Dominion interfere in order to provide a remedy.
The principle of the preservation to minorities of their rights also exists, but I think in a subordinate degree to these others, If I were to ask myself what particular training or what colouring to my mind, or what influence caused me to place such an interpretation upon section 93, I think that on careful examination I would very likely find that the campaign of 1896 with the various cries used in that campaign of, I shall not say ' Hands off Manitoba,' but certainly ' Let the provinces attend to their own educational affairs, would have a large bearing on it. I may be right or I may be wrong, but with all due deference to many gentlemen whose opinions I would value and perhaps defer to in many other cases, I am inclined to think that in my present attitude I am nearer to the position of the Liberal party who swept the county in 1896 on ' provincial rights ' than they are at the present moment. I realize of course how very subtle is the dividing line that will at a certain point separate minds that have been examining various arguments and that have been up to that time in agreement. It you take section 93 which gives exclusive rights of legislation in regard to education to provinces and at the same time makes an exception in favour of minorities, it is easy to ask what is the dominant idea. Heading it with the whole case in view and remembering the struggles that led up to confederation, one mind is struck with the thought that the preservation to minorities of any privileges they enjoyed was the most prominent feature, the principle to be most conserved and safeguarded even to the extent of providing for remedial legislation if infringed upon, To another mind the setting apart to provinces of the exclusive right to make laws on education is the prominent one- and that mind is impressed with the thought that exclusiveness is the real essence- the exceptions being only limitations to the distance to which such exclusive legislation may go. According as you give pre-eminence to one or other of these views, will not your whole course of thought leading up to your final decision on the present Mr. Mcintyre.
question be settled ? I can readily see how others may take the other view. I have followed the arguments advanced with as much care as I can and with all the ability that has been given me, and my course appears to be clear. I think that the proper course in a case of this kind would have been when it was known beforehand that these questions would be debated as we had fought them out on previous occasions, to have ascertained exactly what the constitution was in the case and to have adhered to it, and then we would not have had a Bill brought in that would cause almost a mutiny in a party, that would make it necessary to have reconsideration and a change. A decision on an appeal to the Privy Council would have obivated all or a great portion of the opposition that has arisen. Our constitution being a written one can be interpreted and it has not the elasticity of an unwritten constitution. The only elasticity that I think our constitution has is found in such amendments as may be made by a vote of the people on certain actions of the government and it has been claimed that the remedial portion of our Act of 1867 has been abrogated by the elections following 1896 which may be true. There are other questions in regard to which we may well consider. If these new provinces are not satisfied with the legislation we give will they obey ? If they do not obey what will follow? The west is impatient of restraint; it is unwise, I think, to try to bind them too closely. It may be that they will accept, I hope they will. It may be these Bils will work out well, I hope they will, but I have a fear that possibly we are not at the end of the trouble, but only at the beginning. It has been urged over and over again by members of the opposition in this House that it would be well even yet for the government to take the step of appealing to the Privy Council before they put this Bill in force. I notice in the 'Sunday World' which is not a very good authority to quote to the government, a statement that there were rumours in the corridors that_ such a course would be taken, that the gov-' eminent would yet before putting the Act in force submit certain questions to the Privy Council in regard to these educational clauses. I may say that while my vote is of no importance to the government on the present occasion, if such a step was taken it would enable me with very great pleasure to vote for the government on both of these Bills. As I said the vote of a single member in such a case is not of very much value and importance to them, and it of itself would not be sufficient reason for the government taking such action but it might easily happen that such a course would be of value to them in the future, throughout the country at large and it might happen that numbers of the Conservatives who now feel somewhat disinclined on the constitutional
point to support these Bills, would see tlielr way clear to do so.
There is an alternative presented to us, the amendment of the leader of the opposition (Hr. B. L. Borden). It Is a question always with a member, to what extent he should accept an amendment, even if certain portions or it are satisfactory. There are portions of that amendment with which 1 shall not say I find fault, but the closing portion of it leaves some doubt as to its actual meaning; whether the closing words are simply a repetition of the idea conveyed by the earlier ones or whether they are intended to be a distinct addition to the powers given to the provisions, it is not easy to state ; it is possibly left to the members to decide each for himself. Owing to that indefiniteness in the matter, I feel it would be unwise on my part to support it, and therefore I shall not support the amendment of the leader of the opposition, but I would again urge on the government, in view of all the danger that may come from pressing this Bill through, to consider well and carefully the wisdom of getting a decision of the Privy Council on these questions.
Topic: PROVINCIAL AUTONOMY IN THE NORTHWEST.