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History of Saskatchewan and The Old North West
Chapter XXXIV - Mackintosh's Administration: Political History, 1893-1898


Appointment of Mackintosh—The First Election by Ballot in the North West—School Controversy—Recognition of Justice Macleod's Services—Lieutenant-Governor Withholds Assent to School Ordinance—Bowell's Comment—Newspaper Criticisms—Difficulties of the Lieutenant-Governor's Position— His Defense—Mackintosh Exonerated—Agitation for Better Terms—Final Victory for Responsible Government—Mackintosh's Farewell to the Assembly.

On the nth of November, 1893, Mr. Royal's term of office having expired, Mr. Charles Herbert Mackintosh, well-known Ottawa journalist and politician, arrived at Regina to undertake his duties as the newly appointed Lieutenant-Governor of the North West Territories.

On the 16th of January following, a by-election occurred in the constituency of Whitewood, which is of special historical importance as the first Territorial election in which use was made of the secret ballot. Upon the suggestion of the Honourable Frank Oliver, territorial ballot papers were at first perfectly blank. The voter's choice was indicated by the color of the lead in the pencil he selected, each candidate having a distinctive color. The aim of this curious system was to enable the numerous immigrants, who were now exercising the franchise but could not read English, to register their wishes in an indisputable way. A somewhat amusing incident in this by-election, however, showed that complications might arise even under a variegated lead pencil system. Mr. Joseph Clementson, of Broadview, was the most popular candidate. Voters favoring him marked their ballot with a green pencil. At one polling station the supply of green pencils ran short and to procure another forthwith necessitated a thirty-mile ride through a January snowstorm.

Lieutenant-Governor Mackintosh assembled the fifth session of the Second Legislature on August 2, 1894. A prominent feature of this session was the receipt by the House of a very large number of petitions for the suppression of the liquor traffic. Messrs. Oliver and Dill were the leaders of a small group who favored a prohibition measure, but the majority of the members considered it undesirable that any legislation should be passed for the suppression of the traffic until the views of the country had been ascertained by a plebiscite.

Very interesting and important debates upon the school system occupied much of this session. At the request of the Governor-General in Council the Lieutenant-Governor laid before the Assembly copies of various memorials and other documents by Roman Catholic citizens of the Territories, including a memorial of His Grace the late Archbishop Tache, of St. Boniface. The Governor in Council expressed the earnest hope that the Assembly would take into consideration the various complaints and adopt speedy measures for the redress of any genuine grievance that might be found to exist. Numerous representative Catholics claimed the right to have under their control the general management of their schools, the arrangement for the examining and licensing of their teachers, the selection of their textbooks and the inspection of their schools by qualified persons of their own faith. They also claimed the right of establishing separate schools with boundaries irrespective of those of public school districts, the right of using the French language as a medium of instruction and the right of opening their schools with prayer.

On September 6th a lengthy report was tendered to the House by its Standing Committee on Education, which recommended that it should be permissible to open school with the Lord's Prayer and that no general regulations respecting (a) the management and discipline of schools, (b) the examination, grading and licensing of teachers, (c) selection of text books, (d) inspection of school, or (e) normal training should be adopted or amended except at general meetings of the Council of Public Instruction duly convened for the purpose. Otherwise the committee deemed it inadvisable to recommend any important change with regard to the matters under consideration. A report to this general effect was concurred in by a vote of nineteen to three.

Subsequent debates also occurred upon the best means of meeting the situation created by recent serious crop failures. This topic, however, will be treated of in another place.

The House adjourned on September 7, 1894, having passed a very large number of important ordinances.

Among the resolutions transmitted by the Assembly to the Governor-General in Council was one called forth by the death of Mr. Justice Macleod, whose services to Canada had been of so important a character. Having joined the North West Mounted Police in 1S73. he became Assistant Commissioner in 1S74 and Commissioner in 1877. Three years later he was made a Stipendiary Magistrate and in 1887 a judge of the Supreme Court of the North West Territories. The House was of the opinion that the services rendered by him in the fearless enforcement of the authority of the Canadian Government in the Territories in early days merited special recognition, and it was therefore recommended that a suitable annuity be conferred by the Dominion Government to make provision for his widow and children.

On October 31, 1894, a general election was held in the Territories and on August 29, 1895, the Third Legislature of the North West Territories opened its first session. Mr. James H. Ross becoming a member of Mr. Haultain's Executive in place of Mr. Tweed, who had resigned, Mr. G. F. Betts, of Prince Albert, was elected to the Speakership, an office which he filled with much credit. Mr. Samuel Spencer Page was elected Deputy Speaker.

In his speech from the throne, Lieutenant-Governor Mackintosh referred to the death of Sir John Thompson, K. C. M. G., K. C., P. C., the Prime Minister of Canada, which had occurred in London 011 the thirteenth of the preceding December, and was the occasion of universal mourning. He also mentioned Sir Mackenzie Bowell, Honourable T. M. Daly, Minister of the Interior, and Lord Aberdeen, Governor-General, as having recently paid important official visits to the Territories.

After the regularly recurring debate on the liquor question, the House this year passed by a vote of fifteen to thirteen a memorial praying the Parliament of Canada to cause a prebiscite on the question to be taken at the time of voting at the next Dominion general elections.

The most interesting political event of this session and, indeed, of Lieutenant-Governor Mackintosh's whole administration, was his reserving, for the signification of His Excellency's pleasure, two bills, one of them being a bill to amend and consolidate the School Ordinance, to which the Assembly had devoted a great deal of consideration throughout the session. The action of Mr. Mackintosh in this connection is of sufficient constitutional concern to demand a careful review of the controversy growing out of it.

In the Senate on January 21st, Sir Mackenzie Bowell, replying to a question by Senator Perley, said the Government was aware that Lieutenant-Governor Mackintosh had refused to give his assent to the School Ordinance passed last session by the Legislative Assembly of the Territories, but that in so doing he was not acting on the advice of the Dominion Government. The Premier also read a report of the late Minister of Justice, which had been adopted by the Council. The report stated that the Minister had under consideration the School Ordinance passed by the Legislative Assembly of the Territories at its last session, which was reserved by the Lieutenant-Governor for the assent of the Governor-General. In his report Lieutenant-Governor Mackintosh had given as his reason for withholding his assent

that the bill had been passed by the Assembly on the last day of the session, and that he, consequently, had not an opportunity of examining its provisions. The Minister had pointed out that the Lieutenant-Governor had stated no question for consideration, with regard to the constitutionality of the measure, and no representations had been made to His Excellency from any other quarter that the Assembly had, by its enactment, exceeded its authority. The Minister was therefore of the opinion that the Lieutenant-Governor ought not to have reserved the bill for His Excellency's assent. For the reasons stated, he had therefore recommended that the Lieutenant-Governor be informed that His Excellency did not propose to signify his pleasure with respect to the reserved bill or to take any action upon it.

The Regina Leader was among the western papers most outspoken in criticism of the Lieutenant-Governor's action.

On January 16, 1896, the following comment upon it appeared in its columns:

"That act was the gravest offence of which His Honour has been guilty since the inauguration of his administration. It was as incomprehensible as it was unreasonable. No principle of the former school law had been infringed in the drafting of the new Ordinance. The changes made were merely changes of detail. Some of the changes were important in the direction of perfecting the feasibility and satisfactory working of the law, but none were of any constitutional significance. In the old law there were some incongruities and anomalies. Some of the clauses regulating the money grants to schools were contradictory. The only intrinsically important changes proposed to be made were changes in the method of apportioning the grants. These changes involved 110 constitutional question, and were entirely within the power and prerogative of the Assembly. Then why was assent withheld? Echo answers 'Whv?' His Honour vouchsafed no reason to the Assembly. He did, we learn, privately state that he had adopted the course because he had not had time to review the Ordinance, and that he would give assent by proclamation later. His reason was not good, because on the morning prior to the prorogation of the House, his legal adviser, who is paid to relieve the Lieutenant-Governor of the burden of personally reviewing the legislation, informed His "Honour that the new law was good. His reason therefore was subterfuge, and his promise was either subterfuge or ignorance. He possessed not the power to assent to the law by proclamation during the Assembly recess."

On the other hand. Mr. Mackintosh very vigorously defended the course he had followed. He visited Ottawa in this connection and withheld his resignation only because he believed himself vindicated by subsequent events from the charge of unconstitutional conduct.

It is to be remembered that school legislation is a matter which, though primarily of local concern, is of exceptional seriousness from the point of view of the Dominion authorities, upon whom may devolve, under the provisions of the British North America Act, the delicate duty of passing remedial legislation in defense of the educational rights of an offended minority. At the time when Lieutenant-Governor Mackintosh disallowed the North West School Bill of 1895, quasi-religious issues were prominent at Ottawa, owing to the alleged grievances of the Catholics of Manitoba, and a special moral and constitutional responsibility consequently devolved upon the Lieutenant-Governor to keep himself so informed, and exercise such precautions as would prevent any serious sectarian dispute in connection with the educational affairs of the Territories.

The following is a copy of the Lieutenant-Governor's letter of defense and explanation :

Ottawa, Ontario, 31st January, 1896. To the Honourable the Secretary of State, Ottawa, Ontario.

Sir:

I have the honour to acknowledge the receipt of a copy of the report made by the Honourable the Minister of Justice, dated December 20, 1895, and approved by the Governor in Council, upon an enactment passed by the Legislature of the North West Territories at its last session in September, 1895, and entitled "A11 Ordinance to amend and consolidate, as amended, the Ordinance respecting Schools."

As the above-mentioned report involves issues directly constitutional, I venture to give my reasons for the actions taken by me, and the authorities which, in my estimation, justified such procedure.

Section four (54-55 Vic., chap. 22), "An Act to amend the Acts respecting the North West Territories," provides: "There shall be a session of the Legislative Assembly convened by the Lieutenant-Governor at least once in every year, so that twelve months shall not intervene between the last sitting of the Assembly in one session and its first sitting in another session: and such Assembly shall sit separately from the Lieutenant-Governor and shall present bills passed by it to the Lieutenant-Governor for his assent, who may approve or reserve the same for the assent of the Governor-General."

The list of bills submitted for assent included "The Ordinance to amend and consolidate, as amended, the Ordinance respecting Schools." the' provisions of which had in no form been submitted to and, as mentioned in my communication to the Honourable the Secretary of State under date October the 24th, 1805, as follows:

"The passing of this bill by the Assembly took place on the last day of the session, and almost immediately before the prorogation of the legislature, consequently, as I had no opportunity to examine its provisions, I reserved my assent thereto."

Being informed by the clerk of the Assembly that the measure was incomplete and not ready for inspection1 (a large number of amendments having been passed immediately prior to prorogation), my natural inclination was to withhold assent; but this would have been to assume a serious responsibility, in view of the fact that the North West Territories Act limited by jurisdiction to "approval" or "reservation." Thus I had either to assent to an Ordinance, the purpose of which, save and except the title. I was in utter ignorance of, or adopt the only remaining alternative under the statute, namely, to "reserve assent." To have rejected the Ordinance would, it seemed to me. have been rather a delicate proceeding from a constitutional standpoint, in view of the provisions of the Territorial Act, and prorogation of the Assembly, being then in active progress, I was far from convinced that I would be justified in staying proceedings, in order that the Bill might be arranged in such form as permitted a consideration of its provisions. Under these circumstances I deemed it wiser to reserve assent, quite aware that the Ordinance was a nullity, unless the federal machinery could be invoked to provide a process of legalization. I realized further that the matter would be submitted to the Minister of Justice, for it certainly appeared to be an anomaly to state that the Bill was not ready for assent, and yet be obliged to "reserve assent."

I would further respectfully call attention to the difference between the authority vested in a Lieutenant-Governor of the North West Territories, and a Lieutenant-Governor of provinces having a responsible executive. Todd in his work Parliamentary Government in the British Colonics thus defines these powers: "It equally devolves upon these high officers of the state (Lieutenant-Governors) in the Queen's name to open and to close these assemblies, and, in conformity with their instructions, or with the usage of Parliament, and pursuant to their constitutional discretion, to give or to withhold the assent of the Crown to the bills enacted therein, or lo reserve the same for the consideration of their superior officer, I lis Excellency the Governor-General." And further (page 586), The British North America Act, 1S67, section fifty-five as applied to the provincial constitutions, by section ninety, expressly empowers a Lieutenant-Governor, in his discretion, to withhold the royal assent from any bill presented to him.

The same authority points out that, in Nova Scotia, Lieutenant-Governor Archibald from 1874 to 1883 withheld his assent to bills. In New Brunswick the same course was taken by Lieutenant-Governor Wilmot in 1870 and 1872; by Lieutenant-Governor Tilley in 1875-77; and by Lieutenant-Governor Wilmot in 1882. In Ontario the Crown has never refused to withhold the assent to any bill passed by the provincial Legislature. Hence, while the Lieutenant-Governors of the other provinces have this power, a special enactment deprives and limits the representative of the Crown in the Territories.

I, therefore, venture respectfully to suggest that the attention of His Excellency's advisers may not have been directly called to the closing paragraph of my letter of the 27th October, 1895, or to the manifest difference between the powers with which the provincial Lieutenant-Governors are vested and the restricted jurisdiction of a Lieutenant-Governor of the Territories when called upon to deal with legislation presented for assent. I remain, &c.,

C. H. Mackintosh, Lieutenant-Governor of the North West Territories.

Upon consideration of his communication, the new Minister of Justice,

the Honourable A. R. Dickey, admitted the justice of Mr. Mackintosh's representations, and practically cancelled the official criticism previously passed on His Honour's action.

Report of the Honourable The Minister of Justice, approved by His Excellency, the Governor in Council, on the nth day of March, 1896.

Department of Justice. Ottawa, 10th February, 1896. To His Excellency the Governor-General in Council:

The undersigned has the honour to report that he has considered a despatch from His Honour the Lieutenant-Governor of the North West Territories to the Honourable the Secretary of State, dated 31st January, last, copy of which has been referred to the undersigned by Your Excellency in Council.

The despatch relates to a copy of the approved report of the predecessor of the undersigned, by which Your Excellency declined to give effect to a bill, passed by the Legislature of the North West Territories, entitled "An Ordinance to amend and consolidate, as amended, the Ordinance respecting schools," which bill was reserved by the Lieutenant-Governor for Your Excellency's assent.

His Honour the Lieutenant-Governor states in effect, that the constitution of the North West Territories differs from the constitution of the several provinces, in that no power is conferred upon the Lieutenant-Governor of the Territories to withhold assent to any measure which, having passed the legislative assembly, is presented to him; that he is required by the statute either to approve or reserve the measure for Your Excellency's assent; that the. bill was not presented to him by the assembly in such form as to enable him to consider its provisions, nor until the proceedings for the prorogation of the assembly had so far advanced as to render delay inexpedient; that his inclination would have been to withhold assent had authority to do so been vested in him. but that having no such authority he pursued the only course which he regarded as open, in reserving the bill.

"The undersigned agrees with His Honour the Lieutenant-Governor in the view that he could not constitutionally withhold assent; also that the constitution docs not contemplate that a Lieutenant-Governor should be called upon to the discretion which is vested in him, with regard to any bill which may be presented, without having had a reasonable opportunity of informing himself as to the nature of its provisions." As to the question whether, in view of the circumstances, it would be justifiable to postpone prorogation of the assembly, the undersigned observes that the Lieutenant-Governor had authority to postpone the prorogation and, if the balance of the convenience stood against the exercise of such authority, that circumstance ought not to cast upon Your Excellency a responsibility which should otherwise be borne bv the Territorial authorities; nor do any of the other observations of the Lieutenant-Governor appear to affect the view already stated, that a bill of the character in question should not receive effect under authority vested in Your Excellency. In future, arrangement will doubtless be made by the legislative assembly to inform His Honour as to the provisions of the several bills which are to be presented for assent, and the undersigned docs not consider it necessary at present to advise any amendment to the North West Territories Act.

The undersigned recommends that a copy of this report if approved be transmitted to His Honour the Lieutenant-Governor for his information.

Respectfully submitted,

A. R. Dickey, Minister of Justice.

The second session of the third legislature sat from September 27 to October 30, 1S9G. On the 25th of the preceding May. Mr. Oliver had addressed to the Speaker his resignation as member for Edmonton. The general regret with which his loss to the local House was viewed, was accompanied with confident hope that in the arena of Dominion polities which he was entering, his usefulness would be even greater than it could be in the Territorial House. Few men of the Canadian West have enjoyed so high a measure of esteem and respect from political foes and political friends alike. Mr. Oliver was succeeded by Mr. Mathww McCauley, who was elected on August 6, 1896.

The most interesting and important business of this session had to do with a memorial praying for certain amendments to the North West Territories Act, (a) with respect to the basis upon which the subsidy should be determined; (b) with respect to the powers and organization of the Territorial Government. Mr. Ross and Mr. Haultain were once more the principal powers in this matter. The memorial reminded His Excellency in Council of the numerous kindred representations made by the Territories in times gone by. Satisfaction was expressed at the advances that had been granted from time to time with the result that the Legislature now exercised control over certain funds placed by the Dominion at the disposal of the Lieutenant-Governor, and enjoyed much larger legislative powers than formerly. However, under existing conditions the Assembly was not in a position to exercise to the best advantage even those powers which it already possessed. The legislation of the Assembly not only was subject to the right of disallowance which was possessed by the Governor-in-Council over the Provinces as well, but was also subject to any act of the Parliament of Canada. Consequently it frequently happened that Dominion acts were passed, over-riding ordinances and otherwise interfering with the legislative power of the Assembly. Such concurrent powers necessarily produced insecurity and conflict. The Assembly therefore petitioned for exclusive authority within the defined field of its legislative activity.

It was further requested that the Executive Government be put on a firmer basis by substituting an Executive Council or Cabinet proper for the present Executive Committee, elected by the Assembly. The North West Territories Act made no provision for any responsible body whose business it definitely was to advise the Lieutenant-Governor in executive matters in general, but only with relation to expenditure. In practice the Assembly had, in point of fact, been obliged to make provision in their several ordinances entrusting the administration of their laws to the Lieutenant-Governor, acting by and with the advice and consent of this Committee, created by Federal law simply as a Board of Financial Advisers. This course,' while under the circumstances unavoidable, was questionable constitutionally. Moreover, the Executive Committee of the House was manifestly not authorised to advise the Lieutenant-Governor in matters not governed by the Territorial ordinances,—such, for example, as the appointment of Justices of the Peace, the convening of the Assembly, etcetera. The nature of the Executive Committee was not such as to admit of the organization of departments with responsible heads,—a reform that it was felt would soon be absolutely necessary; and, finally, a permanent committee of the House was a creation without precedent to guide it, and lacked the well defined constitutional status of British Executive Councils.

Regarding the financial position of the Territories the Assembly reiterated, in part, its memorial of four years earlier, asking that a fixed amount in the nature of a subsidy be substituted for an indefinite and variable annual grant. It was pointed out that while the financial resources had always been inadequate, they were steadily growing more so, as the grant, was not being increased in proportion to the growth of the population. During the' preceding five years, the population had increased by fifty-six per centum, and during the four years that a separate amount had been put at the disposal of the Assembly, this grant had increased only sixteen per centum.

On October 27th, Mr. Sutherland, member for the electoral district of North Qu'Appelle, from his place in the House declared his wish to vacate his seat as member for that district.

On October 29th, the School Bill, which had failed to obtain the approval of the Lieutenant-Governor, was read a third time and passed again. At the same time Mr. Speaker read to the House a special message from His Honour calling attention to the desirability of correcting what he declared to be an error in the Journals of the former session. With reference to the School Ordinance, the Journals stated that His Honour did "withhold his assent to this bill." This, he said, was incorrect, as the right to withhold assent was beyond his jurisdiction. What he had clone was to "reserve assent." Upon this distinction, the House docs not seem to have passed any judgment or based any action relating to the proposed correction.

Before the House reassembled on October 28, 1897, important changes had been made by the Dominion Parliament in the constitution of the Territories. In accordance with certain clauses of the recent memorial, the Executive Committee had been replaced by an Executive Council, and the offices of the Government had been reorganized, and public departments created for the more efficient carrying on of the public service. Accordingly, in his speech from the Throne, Lieutenant-Governor Mackintosh was able to congratulate the Territories upon the ultimate attainment of a completely responsible system of government.

The vacancy created by the resignation of William Sutherland for North Qu'Appelle had been filled by the election of Mr. Donald H. McDonald. Mr. J. L. Reid, of Prince Albert, and Mr. F. R. Insigner, of Yorkton, had also retired and been succeeded by Mr. Thomas James Agncw, and Mr. T. A. Patrick. The members of the new Executive Council were Messrs. F. W. G. Haultain, James Hamilton Ross, Hillyard Mitchell, Charles Alexander Magrath and George H. V. Bulyea. These gentlemen, in accordance with constitutional practice, had vacated their seats by accepting appointment to the Cabinet, but were reelected by acclamation.

While much important work, especially in connection with the consolidation of Territorial ordinances, occupied the attention of the members during this session, which was of unusual length, nothing of a very startling nature occurred, and lack of space obliges us to pass over their work without further comment. In proroguing the House on December 15th, Lieutenant-Governor Mackintosh spoke in part as follows:

"During the session since the creation of the Legislative Assembly has so much and so important legislation been passed. The consolidation of the Ordinances for which you have provided, and towards the completion of which a large portion of your labour has been devoted, will. I trust, prove of great benefit and convenience. The legislation for establishing and organizing the public service will, I am sure, enable the business of the Territories to be administered in keeping with the larger duties and responsibilities that have been imposed upon you. . . . The year about to close with your labours is a memorable one. not only in Territorial constitutional history, but in the larger history of the Empire itself, as having witnessed the completion of Her Majesty's sixtieth year of her reign. . ' . . In bringing this session to a close. I am for the last time meeting you in' my present official capacity. During the four years in which I have had the honour of being Her Majesty's representative" in the Territories, the Legislative Assembly has always displayed an assiduity and sense of responsibility in keeping with the important duties devolving upon it, and in now taking leave of yon, I desire to express my best wishes for your personal happiness and my earnest hope and belief that your work will always result in the greatest possible benefit to the vast Territories whose interests and welfare are entrusted to your keeping."


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