Edward Porritt.

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Tstem children of all religions, was the aim of the Protes-
tant population of Upper Canada in the years of
the legislative union. But in the era of the
United Provinces, as today, there were areas
in Upper Canada, now Ontario, in which there
were large settlements of French-Canadians,
and areas settled by immigrants from Ireland.
French-Canadians in the legislature, before
1863, had insisted on separate schools for Lower



Canada; and in the interests of the Roman
Catholics French-Canadian and Irish they
also insisted, from 1849 to 1863, that there should
be a separate school system in Upper Canada.

Fourteen years of bitter sectarian contro- Upper
versy, years in which the Roman Catholics in ^u^*
Upper Canada made the separate school question cation
the paramount issue in politics, 1 culminated ^\ S6S
in the education act of 1863. It was accepted
by the Roman Catholic hierarchy as a settle-
ment a settlement which relieved the Protes-
tants of Upper Canada from "standing constantly
to arms," as George Brown, leader of the Liberals,
described the position, "awaiting fresh attacks
upon our school system," as they had been com-
pelled to do in the years from 1849 to l ^3-

On the eve of Confederation there were 4,000
common schools in Upper Canada. Of this
number 100 were separate schools, Roman
Catholic in local management and in organization,
atmosphere, and teaching.

It would have been impossible to carry the Lower
preliminaries to Confederation beyond the Char- ^ nada
lottetown convention of September, 1864 Confed-
beyond the second of the five stages 2 had not demands

1 Cf. Mackenzie, 122-127. safe ~

2 These stages were (i) the agreement effected when the IP******
Tache-Macdonald government was reorganized in June, separa t c
1864; (2) the Charlottetown convention; (3) the Quebec school
convention; (4) the approval of the Quebec resolutions by system
the legislatures of the several provinces; and (5) the enact-
ment of the British North America act at Westminster.


the Fathers of Confederation been willing that
adequate protection should be afforded in the
British North America act to the separate school
system, and the principles on which it was based
when it was established in 1863. ,

Safeguards French Canada would never have given its
Protestant su PP ort to Confederation without this pro-
schools in tection. There were also in 1864-1867 com-
^^fa paratively large numbers of Roman Catholics
French-Canadian, Irish, and Highland-Scotch
in Ontario, Nova Scotia, and New Brunswick.
Moreover, in Montreal and Quebec, and also in
the eastern townships of the French province,
there were many people of English and Scotch
descent who were of the Protestant minorities
in that province people who could not send
their children to the Catholic schools, and who
were consequently in need of schools similar to
those of the Protestant majority in Upper Canada.
Section The protection demanded by those Fathers of
Confederation who were vigilant guardians of
Roman Catholic interests nearly all of them
from the French province was embodied in
section 93 of the British North America act.
This section, which forms the fourth division
in the classification and assignment of powers,
determines the powers of the provincial legis-
latures and of the Dominion parliament respec-
tively with regard to education.

Carnarvon approached this section with cir-
cumspection when on February 19, 1867, he



unfolded the provisions of the bill to the house Carnar-
of lords.


Your lordships he said will observe some rather , sec
complicated arrangements in reference to education. The house of
object of this clause is to secure to the religious minority of lords
one province the same rights, privileges, and protection which
the religious minority of another province may enjoy. The
Roman Catholic minority of Upper Canada, the Protestant
minority of Lower Canada, and the Roman Catholic minority
of the Maritime Provinces will thus stand on a footing of
entire equality. But in the event of any wrong at the hands
of the local majority, the minority have a right of appeal
to the governor-general in council, and may claim the appli-
cation of any remedial laws that may be necessary from the
central parliament of the Confederation. 1

The section as it stands in the act declares that A

"in and for each province, the legislature may J^JJ"

exclusively make laws in relation to education." powers

But the enactment of laws relating to education , of legis ~

, , . j. . latures

is governed by an important condition, important
from the point of view of the Roman Catholic
Church in at least two of the provinces that were
organized before Confederation, and also in the
three provinces Manitoba, Saskatchewan, and
Alberta which were created by parliament at
Ottawa in the years from 1870 to 1905.

This condition the kernel of section 93 Kernel
is that nothing in "any such law shall prejudicially g ction
affect any right or privilege with respect to de- 93
nominational schools which any class of persons
have by law in the province at the union."
1 H. L. Debates, February 19, 1867.



Protection In the province of Quebec the legislature can-
Protestant not enact a ^ aw prejudicial to separate schools,
schools in Protestant or Roman Catholic, without centra-
Quebec V ening section 93. It cannot legislate to the dis-
advantage of these schools, because by section
93 "all the powers, privileges, and duties at the
union, by law conferred and imposed in Upper
Canada on the separate schools and school
trustees of the queen's Roman Catholic sub-
jects," were "extended to the dissentient schools
of the queen's Protestant and Roman Catholic
subjects in Quebec."

Grievances Quite as important as these restrictions on the
minorities l e g^ s ^ atures m enacting laws relating to schools
maintained out of public funds are two other
provisions of section 93 for remedying any griev-
ance of minorities that might result from legis-
latures or governments of the provinces acting
in contravention of these terms of the British
North America act.

Appeal to The first of these provisions declares that where
^neraT" * n ^^ province a system of separate schools
in council existed by law at the union, or after the union
was established, an appeal shall lie to the governor-
general in council that is, to the cabinet at
Ottawa "from any act or decision of any
provincial authority affecting any right or privi-
lege 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-in-council


requisite for the due execution of the provisions Remedial
of this section, is not made," reads the second ) e ^ s " .

r , . . , . . f lationby

of these provisions, or m case any decision of pariia-
the governor-general-in-council or any appeal ment
under this section is not duly executed by the
proper provincial authority in that behalf, then,
and in every such case, and as far only as the
circumstances of each case require, the parliament
of Canada may make remedial laws for the due
execution of the provisions of this section and of
any decision of the governor-general under this

V. A Contention-breeding Provision of the British
North America Act

Only two of the existing nine provinces of the school
Dominion had separate school systems at Con- situation
federation. These were Ontario and Quebec, confed-
Nova Scotia, 1 New Brunswick, and Prince eration
Edward Island 2 were free from the system; and

1 An attempt was made in Nova Scotia on the eve of
Confederation to assimilate the school law of that province
to the school laws of Upper and Lower Canada. The move-
ment was opposed by Tupper, who intimated to Dr. T. L.
Connolly, Roman Catholic archbishop of Halifax, that he
should oppose any bill introduced in the legislature to the
end desired by the archbishop, and should not shrink from
the performance of that duty were he confident that it would
terminate his public life. Saunders, "Life and Letters of
Sir Charles Tupper," I, 150-152.

2 In New Brunswick before Confederation there was a
parish school system. In 1871, after an education bill had
been enacted by the legislature at Fredericton, the question



schools in


British Columbia, six years before it came into
Confederation, had established a school system,
which the education act 1 declared "shall be
conducted upon strictly non-sectarian principles."
"Books inculcating the highest morality shall
be selected for the use of such schools," reads
another section of the law, "and all books of
religious character, teaching denominational
dogma, shall be strictly excluded therefrom."

In 1872, a year after it came into the union,
British Columbia amended the education act
of 1865; and when Robertson, provincial secre-
tarv j n t j ie McCreight administration, who was
in charge of the bill, introduced it to the legis-
lative assembly, he intimated that its basal
principles were (i) that every child had a moral
right to an education, and (2) that the system
should be free and unsectarian. 2 By this act
of 1872 clergymen were incapacitated from serving
as school trustees.

As the school system of British Columbia had
fc een established before the province came into
section 93 Confederation, it was not possible for the Domin-
ion government to make section 93 of the British

was raised as to whether the parish school system constituted
a separate school system under the terms of the British
North America act. A case was taken to the judicial com-
mittee of the privy council at Whitehall. The decision was
that the New Brunswick parish system could not properly
be held to constitute a separate school system.

1 The Common School act, 1865, 28 and 29 Viet., c. 6.

* Cf. Colonist, Victoria, March 14, 1872.




North America act operative in that province.
But when Manitoba was created a province in
1870, the section was made to apply to laws re-
lating to education passed by its legislature. A
Conservative government was responsible for the
Manitoba act. In 1905, when Saskatchewan
and Alberta were created provinces, a Liberal
government, supported by fifty-five of the sixty-
five members of the house of commons from
Quebec, was in power at Ottawa, and again
section 93 was extended to the new provinces.

There was much heated contention over sepa- conten-
rate schools in Upper Canada from 1849 to 1863. ^ no
But this contention of the era of the United schools
Provinces was comparatively small, and cer- j^ ed
tainly limited in area, as compared with the eration
intense and extended contention and bitterness
which in the first half-century of Confederation
were engendered by section 93 of the British
North America act.

French-Canadians, in these fifty years, were as
vigilant in asserting the rights of their church
under this section, and in securing that the sec-
tion was extended to the provinces carved out
of the Hudson Bay Company's territory, as they
were in insisting on the use of the French language
in parliament, or in asserting their claims to
offices in the civil service and to government
patronage generally, or in opposing the enact-
ment of the conscription law of 1917.

Section 93, in the years from 1867 to 1917,




out of


was at the root of more political crises in Winni-
peg> Toronto, and Quebec, and also at Ottawa,
than any other issue in provincial or Dominion
section 93 politics. It was the occasion of more public
noise in Manitoba, Ontario, and Quebec than any
other controversial question. More political rep-
utations had their gilt edges worn off in these
heated and long-drawn-out politico-sectarian,
constitutional controversies than in any other
controversy or agitation in Canada from Con-
federation to the great war.

Both political parties were vexed and torn by
these section 93 agitations. Tupper, a Conserv-
ative premier, partly owed his political downfall
in 1896 to trouble in Manitoba over section 93,
and to developments in Ottawa growing out of
this trouble. Laurier, premier of Liberal govern-
ments from 1896 to 1911, lost prestige with the
Liberals in the constituencies through his part
in embodying the section in the constitutions of
Saskatchewan and Alberta. He again lost pres-
tige in 1916, when as leader of the opposition in
the house of commons he identified himself with
claims of the Roman Catholic church under this
section claims originating in connection with
separate schools in Ottawa, which at that time
were agitating Ontario and Quebec, and making
business for the judicial committee of the privy
council in London. 1

1 Cf. " Priests Block Recruiting in Quebec Province," New
York Times Magazine, June 25, 1916; Senator Landry's



The church whose interests were so carefully Roman
safeguarded at the Quebec convention of 1864 Catho " c

... . . , . church

has obtained some advantages in other provinces in
than Quebec by section 93. The area in which P 011 * 108
schools controlled by its clergy and its lay adher-
ents are established was extended between 1867
and 1917 in Ontario, and separate schools were
established in the prairie provinces.

The recrudescence of the separate-schools
question also afforded the church opportunities
of giving a political lead to its adherents, and of
keeping in touch with political leaders. The
schools question also has, since Confederation,
as in the years from 1849 to 1863 in Upper and
Lower Canada, strengthened the political soli-
darity of French-Canadians and kept them in
association and political sympathy with Roman
Catholics in other provinces besides Quebec.

Lawyers have undoubtedly profited from all Profit-
these agitations. Cases under the separate- able
schools laws found their way into the courts. gentle-
Some of them were carried to the judicial com- en o be
mittee of the privy council the court of last
resort for litigants from India and the British
dominions that holds its sessions at Whitehall.
In the first half century of Confederation, section
93 enriched more barristers in Montreal, Quebec,
Ottawa, Toronto, and Winnipeg, and more

letter of May 22, 1916, the Gazette, Montreal, June 3, 1916;
full text of judgments in school cases, the Gazette, Montreal,
November 3, 1916.



attorneys and gentlemen of the long robe and
of the Inns of Court in the neighborhood of
Temple Bar, than any other section of the British
North America act.

A key Carnarvon, who as colonial secretary managed

conditions t ^ e preliminary negotiations with the Fathers
in of Confederation who were in London in 1867,

and who P iloted the British North America act
through the house of lords with a good will
towards Canada and its aspirations and a states-
manlike parliamentary skill that are kindly
remembered in the Dominion, described section
93 as complicated.

It is complicated. It is one of the most com-
plicated and contention-breeding sections ever
embodied in the constitution of any English-
speaking country. But it must be understood,
and so must the education systems of the older
provinces as they existed on the eve of Confeder-
ation. Otherwise it is impossible to understand
many political episodes and developments in
Canada since 1867, or to realize the cause of the
divisions between Quebec and Ontario in Domin-
ion politics, or to understand some of the con-
ditions that have long characterized politics
at Ottawa.



BEFORE Confederation there was a governor- Colonial
general established at the capital of the
United Provinces, and a governor in each of fore
the other provinces of British Columbia, Nova
Scotia, New Brunswick, and Prince Edward
Island. They were all appointed by the crown,
pn the advice and recommendation of the colonial
office in London. They were sent out from Great
Britain, and were appointed under the patronage
system as it then existed at Westminster.

I. The Governor-general under Confederation

By the British North America act the office of Lieu-
governor-general was continued; and governors *
of the other provinces ceased to be appointed by ors under
the colonial office. For governors sent out from ^ e N A
Great Britain there were substituted lieutenant- act
governors invariably Canadians appointed
by the governor-general in council in practice
by the cabinet at Ottawa.

No change was made by the British North GOV-
America act in the general relations of the gov- * >r ~
ernor-general to the cabinet. These remained and the
the same as from 1849 the year in which cabinet



Elgin, continuing an undertaking successfully
begun by Sydenham in 1841, aided in com-
pletely establishing responsible government in
the United Provinces.

By responsible government, it will be recalled,
is meant the system under which the governor-
general must form his executive council or cab-
inet only from members of parliament who can
command the support of a majority of the mem-
bers of the house of commons the house which
in practice has sole control of the powers of
taxation and appropriation.

Custom There was no law, either of the imperial parlia-
of the ment or of the legislature of the United Provinces,


tution establishing the system of responsible govern-
ment. There is no law of the imperial parliament
which established the cabinet at Ottawa exactly
as it is constituted today as it has been con-
stituted since I867. 1 Nor is there any law which
declares that the cabinet at Whitehall must be

1 All that the section of the British North America act
establishing the executive council or cabinet says is, "There
shall be a council to aid and advise the government of Canada,
to be styled the queen's privy council for Canada; and the
persons who are to be members of that council shall be from
time to time chosen and summoned by the governor-general
and sworn in as privy councilors, and the members thereof
may be from time to time removed by the governor-general."
Section XI. "The provisions of the British North-
America act imply, though they do not express, the unwritten
conventions of British parliamentary practice." H. E.
Egerton, " Federations and unions within the British Empire,"

[2 4 8]


chosen by the king from members of parliament
who command a majority in the house of commons
at Westminster. The cabinet system at White-
hall is based on usage on a custom of the con-
stitution which has been continuously followed
for at least two centuries.

At the capital of the United Provinces the un-
system of responsible government was also based
only on usage, or on the custom of the constitution, tution
From 1840 to 1867 the United Provinces had a j^ d
written constitution the act of union of 1840, Provinces
with the liberalizing amendments made by the
imperial parliament in 1847 and 1854. But they
had also, as has already been told, an unwritten

The greatly restricted power of the legislative
council in respect to money bills the power to
reject but not to amend a money bill was deter-
mined by the unwritten constitution. So also
was the right of the legislature to enact a tariff
without regard to the industrial and commercial
interests of the United Kingdom, a right first
asserted and exercised in 1858. It was also under
the unwritten constitution that responsible govern-
ment was established in 1841-1845, and main-
tained inviolate from 1849 to 1867.

Quite important parts of the constitution of un-
the Dominion are still unwritten. The British ^" n
North America act ordains that "bills for appro- tution
priating any part of the public revenue or for
imposing any tax or impost shall originate in



the house of commons." The conditions under
which money bills shall originate conditions
which prevent any money bill from originating
except at the instance of the privy council or
cabinet are also determined by the written

Restricted There is, however, no section in the act which
the^e^te Decrees tnat tne senate shall have far less power
over over money bills a power that in practice is
^ ey scarcely more than nominal than is exercised
by the house of commons. Nor was there any
section in the Quebec act of 1791, or in the act of
union of 1840, which gave to the three legis-
lative assemblies of 1791-1867 1 the larger powers
which they exercised over money bills. In regard
to money bills the legislative councils were in
the same position as is today the senate at Ottawa.
In all matters affecting the raising and appro-
priation of the provincial revenues they were in
an inferior or secondary position in relation to
the legislative assemblies.

The larger powers of the commons of the Domin-
ion over money bills are based on a custom of
the constitution of the United Kingdom, which
originated at Westminster in 1661 2 a custom
that had been established for almost a century

1 The legislative assembly of Upper Canada, the legislative
assembly of Lower Canada, and the legislative assembly of
the United Provinces.

2 Cf. Porritt, "Unreformed House of Commons," I, 548-

[2 5 0]


before the first elected legislative assembly in Respon-
any of the present oversea dominions of Great sible

. . . . govern-

Britain came into existence at Halifax in 1758. ment

Responsible government in the Dominion, de ~
the system of government that restricts drasti- by usage
cally the actual power and authority of the
governor-general at Ottawa, is also still based
only on usage and custom. Neither by the
British North America act, nor by any subsequent
legislation at Westminster, was direct statutory
sanction given to the system of government in
Canada that between 1841 and 1849 was created
by the statesmen of the United Provinces, and
accepted by Sydenham, Bagot, and Elgin as
representatives of the crown.

II. Relations of the Governor-general to the

There is, however, a section in the British Govern-
North America act that to some degree and or ~


indirectly establishes responsible government, must act
and much of what in Canada between 1841 and advice
1867 had come to be associated with the term cabinet
Canadian in origin "responsible government."
"The provisions of this act relating to the gov-
ernor-general," it reads, "shall be construed as
referring to the governor-general, acting by and
with the advice of the queen's privy council for

Lafontaine and Baldwin and their colleagues
of the movement for responsible government,


Basal it will be recalled, made two demands on Met-

1 calfe in 1843-1845. They insisted on his acting

sibie on two principles. The first was that he should

govern- se l ec t his executive council or cabinet only


from the political party which commanded a
majority in the legislative assembly. The second
was that he should act in all political matters
only on the advice of the council so chosen.

Elgin's policies and actions as governor-general
of the United Provinces from 1847 to 1854 were
based on these two principles. His fame in
Canadian history, and in the history of the Empire,
rests on his part in the establishment of respon-
sible government. Head and Monck, his suc-
cessors, acted on the precedents that Elgin had

These These principles were soon adopted in other

adoled* British c l n i e s. They were, in fact, so quickly,
in other and completely adopted in the British North
colonies American provinces, in Australasia, and in South
Africa, that as early as 1860, seven years before
Confederation, responsible government had be-
come so general in British colonies with parlia-
mentary institutions, and the powers of governors
had thereby been so greatly curtailed, that Sir
William Denison, governor of New South Wales

Online LibraryEdward PorrittEvolution of the Dominion of Canada; its government and its politics → online text (page 16 of 34)