The LEGISLATIVE STRUGGLE for CHURCH UNION
Gershom W. Mason Q.C., M.A., LL.D., D.Litt.S.
COPYRIGHT, CANADA, 1956, BY
THE RYERSON PRESS, TORONTO
used by permission pp. 93-101, 108-125
__________
The Adverse Report
The Committee on Miscellaneous Private Bills resumed consideration of the bill on May 21.
The chairman asked if it was the pleasure of the Committee that the preamble be adopted. Mr. Duff moved, seconded by Mr. E. G. Porter, an amendment to the preamble to the effect that the Act should not come into force until, and unless - (1) the courts finally decided that the General Assembly had the power to form a union with the Methodist and Congregational Churches and, (2) the courts finally decided that Parliament could enact the Act in whole or in part and, if in part, only that only such parts as should be declared constitutional should come into effect, the latter question to be submitted to the Supreme Court of Canada. The amendment was ruled to be in order although Mr. Bird protested that it was a negation of the principle of the preamble. Mr. Boys moved that a sub-committee be appointed consisting of seven members to confer with three representatives of each side to consider the exact legal effect of the Duff amendment and also to see if there were any possibility of reaching an agreement. The motion was adopted, Mr. Duff allowing his motion to stand meanwhile and the following members were named: J. L. Brown, W. A. Boys, Hon. C. Marcil, D. A. MacKinnon, W. G. Raymond, A. J. Lewis and Joseph Archambault. They were instructed to meet later in the day and report on May 22.
At the evening meeting of the sub-committee it became apparent that no progress could be made as one of the representatives of the opponents of the Bill made it clear that he had no instructions that would enable him to consent to any settlement and left the meeting after making his statement.
On the morning of May 22, the sub-committee reported that no ground of agreement had been reached and that the legal effect of the Duff amendment was that the courts referred to in it might mean not only the courts dealing with the action then pending but any courts dealing with any action brought at any later time in the courts of any of the Provinces. Mr. Duff then withdrew the amendment he had offered and substituted the following:
That the preamble be amended by inserting after the words "and whereas doubts have arisen as to the power of the General Assembly of the Presbyterian Church in Canada to agree to the union mentioned herein and as to the jurisdiction of the Parliament of Canada with regard to certain of the powers asked for" and after the word "petition" in line 16, the following Words "subject to the provisions hereinafter set forth in section 1(A) of the Act" and that the following be added as clause 1(A) of the Bill-
1(A). This Act shall not come into force until the first day of July, 1926, and not then,-
(1) unless the courts shall have finally decided in the action now pending in the Supreme Court of Ontario that the General Assembly of the Presbyterian Church in Canada had the power under its constitution and rules to agree to a union of the Presbyterian Church in Canada with the Methodist and Congregational Churches upon the basis of union, including the appendix on law as set out in Schedule A. to this Act.
(2) unless the courts shall have finally decided that the Parliament of Canada can constitutionally enact this Act in whole or in part; and if the courts should decide that this Act is constitutional only in part then it shall come into force only as to such parts as are declared constitutional; Provided further that the latter question shall be submitted to the Supreme Court of Canada by a reference by the Minister of Justice.
(3) If during the session of Parliament immediately preceding the first day of July, 1926, the courts have not finally decided the questions involved in subsections 1 and 2 the Parliament of Canada may further suspend the operation of this Act.
Mr. Boys had apparently had a hand in the Duff amendment as he explained the reasons for some of the changes in the terminology of the amendment as formerly submitted. Mr. Bird protested vigorously that the amendment was a deliberate attempt to defeat the purpose of the bill. It was designedly dilatory but would be futile because Parliament would have to deal with the Bill later if not now. Mr. Brown pointed out that the issue was whether a church had or had not the inherent right to determine its doctrine, polity and destiny and that ultimately this issue must come to the front as in Scotland. He said the amendment was either prepared by a lawyer who wanted to kill the bill or by a lawyer who was not very clear, as openings were left for hanging it up indefinitely. Dr. Anderson asked if the passage of the bill would stop the litigation. Mr. Boys said nothing could stop it. In this he was not a true prophet as the litigation never proceeded.
It became known later that the whole plan reflected in the amendment had been devised by a few men drawn from both the Liberal and Conservative members to defeat the bill, and that they had taken such measures as would insure their having a small majority in favour of the amendment no matter what happened. The number of members voting on the amendment included many men who bad little or no interest in the subject matter and whose attendance during the presentation had been perfunctory. It bad become apparent that there was a clear majority of the members ordinarily in attendance, in favour of the bill. Nevertheless the amendment carried on a vote of twenty-seven to twenty- three on the following division:
Yeas - Archambault, Bouchard, Borrassa, Bowen, Boys, Chaplin, Clark, Denis, Deslauriers, Duff, Ethier, Fontaine, Forrester, Gendron, Harris, Jones, Kay, MacLaren, McKillop, C. Marcil, Ouimet, Porter, Rheaume, Robitaille, Seguin, Stork, Wilson.
Nays - Anderson, Baldwin, Bancroft, Bird, Brethen, Brown, Drummond, Findlay, Fortier, W. G. Garland, Morin, Hammell, Kellner, Kennedy (Edmonton), King, (Huron), Lewis, Lucas, McBride, Pritchard, Reed, Senn, Thompson, Woods. Of the English-speaking members, fourteen voted for the amendment and twenty-one against. Of the French-speaking members thirteen voted for the amendment and two against.
The question it once arose as to why certain of the majority had displayed such unusual interest at this particular moment. A rumour went abroad that it was the result of efforts made by the Prime Minister. This probably arose from the fact that he had been seen to speak to a number of the members in their places in the House, on the previous day. The Prime Minister must be acquitted of any connection with the matter. He had been giving dinner invitations in the House and on the rumour being brought to his attention he stated most explicitly that he had had nothing to do with the matter in any way. Apparently the real moving force was a certain member of the House, not a member of the Committee, who is alleged to have said to his political friends on the Committee, with more zeal than discretion or truthfulness, that it was the desire of the Prime Minister that the amendment should prevail.
These amendments made it necessary to prepare a lengthy statement setting forth the objections to them and showing their real purpose. This statement was widely circulated. An abbreviated form was prepared for the members and is reproduced here as a sample of many such memoranda.
WHY ARE THE AMENDMENTS TO THE CHURCH UNION BILL NOT ACCEPTABLE?
1. The Churches have sought legislation to avoid litigation. The Free Church decision was given by the House of Lords in 1904, and it has been the policy of the Churches throughout all their negotiations for the past twenty years to have the Union consummated by Federal and Provincial legislation in such manner as to make litigation impossible.
2. In all former Church Unions in Canada the Churches secured the legislation required without reference to courts. There is no precedent in similar legislation for the amendment.
3. The appeal to the courts is futile, because, if they should determine that the Presbyterian Church has not the legal power to change her doctrine and polity the disability would have to be removed and Parliament alone could remove it. Parliament can now remove any possible doubt and make a fair and equitable settlement instead of keeping the whole matter of Union in a state of uncertainty and strife for several years.
4. There is ample precedent for Parliamentary action to settle any doubt as to the power of the General Assembly. The Imperial Parliament, in 1905 and 1921, removed the disability under which the Scottish Churches had been placed by the decision of 1904.
5. The Churches have awaited as patiently as possible the consummation of Union through legislation at this session of Parliament, although the delays up to this time have created a situation in all the Churches which is already unbearable. A further delay will imperil co-operation, create disappointment and confusion in thousands of congregations, leave people without Church services in large areas of the Dominion, seriously interfere with missionary enterprises and embarrass the administrative and educational work of the Churches.
6. The Provincial legislation respecting The United Church of Canada has been passed by the Legislatures of the Provinces of Nova Scotia, New Brunswick, Prince Edward Island, Manitoba, Saskatchewan and Alberta without substantial amendment, or any amendment not acceptable to the negotiating Churches.
7. The negotiating Churches earnestly believe that the people's representatives, who constitute the highest court in the land, should accept the responsibility of definite and final decision on a question so vital to the well-being of this Dominion.
On behalf of the negotiating Churches,
E. Leslie Pidgeon,
W. R. Young,
W. T. Gunn.
It has been so frequently stated by opponents of union that certain amendments to the Bill were forced upon the unionists by Parliament that the true story of these amendments should be told.
During the presentation of the case, before the Private Bills Committee it had been intimated that counsel for the negotiating Churches intended to submit certain amendments to the Committee. These amendments had to do chiefly with permitting the vote to be taken six months before the coming into force of the Act, providing for a vote on requisition of a number of members where the session had not called a meeting, and providing that non-concurring congregations might carry on describing themselves as Presbyterian, Methodist or Congregational Churches but that they should not be at liberty to describe themselves by the name of their parent Church.
These amendments were under consideration by Mr. Tilled, Mr. Young and the writer immediately after the conclusion of the public presentation of the case for and against the Bill and were submitted to Hon. Mr. Rowell, the chairman of the Committee on Law and Legislation and considered by that Committee on May 10th, as previously mentioned. After being settled, copies were submitted to some of the members, including the Deputy Speaker, Mr. George N. Gordon, K.C., and with slight amendment were submitted later by counsel for the bill, to the Private Bills Committee, and adopted. The particular amendment as to non-concurrents not having the right to use the name of their parent Churches was considered between counsel for both sides at conferences and will be referred to later.
It will thus be seen that the amendments in question were voluntarily made by the representatives of the negotiating Churches before any adverse vote had been taken by the Committee.
At the meeting of the Private Bills Committee on June 5, good progress was made. Substantially the whole bill was approved except the sections dealing with the non-concurring congregations. Strong objection was taken by the opposition to some matters of minor importance while sections of the greatest importance were allowed to pass without the slightest objection.
At this stage Rev. Dr. Leslie Pidgeon was obliged to leave Ottawa to attend the meeting of the Presbyterian General Assembly at Owen Sound and he was able to report to the Assembly the substantial progress made.
There were some humorous episodes to lighten the tedium and one occurred immediately before this time. Dr. Leslie Pidgeon and the writer were standing with Mr. Geoffrion in the rotunda of the Chateau Laurier discussing the situation. Frequently everything had seemed to indicate that our difficulties were surmounted but after each week-end some new difficulty seemed to be raised. Dr. Pidgeon said: "Well, Mr. Geoffrion, everything seems all right now, but will it stay put till Monday?" Like a flash, Mr. Geoffrion replied in his delightful accent and with his inimitable shrug, "Dr. Pidgeon, since we Presbyterians have abolished predestination, you can never tell what will happen before Monday."
One of the members, Mr. McBride of Cariboo, a wholehearted Irishman, was a strong advocate of union. An amendment was introduced in Committee which puzzled him, as well it might, for it was a devious maze of words. At that stage counsel were not being heard but Mr. McBride was anxious to know what Unionist counsel thought of it and said to the chair, "Mr. Chairman, I do not understand what this means. I think we should hear from our own solicitor."
Some of the more enthusiastic anti-unionists would have had Parliament believe that there had been such a revulsion of feeling in the Presbyterian Church that the majority was against union. It was also contended that the General Assembly had never approved of the legislation as presented to the House. It was useful that at this moment the Assembly made its pronouncement in no uncertain terms. A full report of the progress of the legislation was placed before the Assembly and the following resolutions were presented:
1. In view of the fact that the right of the Church to restate its own faith, to shape its own polity and to determine its own destiny has been challenged and that the whole question of the spiritual independence of the Church has definitely arisen, this General Assembly of The Presbyterian Church in Canada sets forth the following as expressing its conviction regarding the liberty of Christ's Church in matters spiritual. This Church has the right and power, subject to no civil authority, to legislate and to adjudicate finally in all matters of doctrine, worship, government and discipline in the Church, to frame, adopt and modify its subordinate standards of faith, and the right to unite with any other Christian Church without loss of its identity on terms which it finds to be consistent with its own principles, doctrine and religious standards.
2. This Assembly must, therefore, decline to accept the amendments which have been introduced into the Preamble of the Church Union Bill now before Parliament as invading and violating these rights. This Assembly respectfully urges the Parliament of Canada to pass during this session the Church Union Bill without any amendment which would invalidate the principle of the Bill.
On June 9, 1924, these resolutions were carried by a majority of 426 to 96. An amendment that no further steps be taken in the matter until such time as the civil courts should have decided upon the constitutionality of the entire proceedings had been defeated by a vote of 444 to 92. The decisive character of these votes could not be gainsaid and much less was beard thereafter as to the opponents of union being in the majority.
The General Assembly completed its labours on June 11. Before dissolving, the Assembly named the Presbyterian representatives in the First General Council of the United Church. It also adopted the answer prepared by a special committee to Reasons for Dissent lodged by anti-unionists.
(1) It affirmed that the Church had declared its mind in a constitutional manner through its courts.
(2) It adopted the principle of the Articles declaratory of the Constitution of the Church of Scotland incorporated in the Church of Scotland Act, 1921.
(3) It asserted that the Church had taken the steps necessary for the consummation of organic union.
(4) It denied the imputation that the purpose of union was to obliterate the Church and asserted that through union the Church would enter into a wider life and more effective service.
(5) It denied that it had broken any promises of the Assemblies of 1905, 1912 and 1917, and affirmed the declaration of the Assembly of 1921 as to such contentions.
(6) It denied that the adoption of the Basis of Union was a backward step in either doctrine or polity.
(7) It claimed that the action of a Comniittee of a Legislature in declaring
that the Presbyterian Church may not unite as a church with the other churches
but must remain separate, though permitting the majority to secede and
unite, was an infringement of the spiritual independence of the Church
as it denied to the Church as a Church liberty of action to follow its
conscience in obeying the Will of Jesus Christ.
...
The Amendment Defeated
It was now in such form that if the objectionable language inserted by the Duff amendment was deleted the Bill was satisfactory. The whole procedure of counsel for the Bill was on the theory that the House would delete the amendment and leave the Bill in the form desired. The opponents never brought any section to a vote in the Committee after the Duff amendment was carried. It was impossible for them to have succeeded again in view of the situation created by their method of carrying the objectionable amendment and they apparently placed their reliance upon being able to hold the amendment. If they had been successful, no one can say what the result would have been. A serious crisis would have been precipitated and the country would have been thrown into turmoil.
The next question was how to get rid of the amendment. Before the committee rose Mr. Brown and Mr. G. A. Brethen tried to have the report amended to contain a declaration in favour of the rescinding of the amendment. This was ruled out of order but the chairman stated that the motion could be reported to the House as part of the proceedings of the committee. Mr. Brown accepted the suggestion and his resolution went forward in the following terms:
Whereas one of the objects in seeking legislation in connection with the Union of the negotiating Churches was to avoid the possible application of the House of Lords decision in the Free Church case to the Canadian Churches;
And whereas Parliament is the proper court to which citizens should appeal if their inherent rights are not clearly recognized in law;
And whereas the assumption which underlies any appeal for legislation is that the laws as they exist are either not clear or not adequate;
And whereas the Imperial Parliament readily granted the legislation necessary to assure liberty of self-determination to the Church of Scotland;
And whereas the amendment made to this bill by a vote of 27 to 23 members of the Private Bills Committee sends the Church to the very courts which the appeal for legislation was intended to avoid, and thus defeats the purpose of the appeal of these Churches;
It is therefore recommended that the amendment to the preamble and Section 1A be deleted from the bill.
It was difficult to know the best procedure to adopt. The motion could be made in committee of the whole but there would not be a recorded vote in that event. A motion might be made to refer the bill back to the Committee with instructions that it had power to amend the bill as reported, by striking out the (Duff ) amendment. On such a motion there would be a recorded vote, but the practice was not a usual one and might not meet with favour from some members in sympathy with the Bill. Eventually it was decided to deal with the amendment in Committee of the Whole and on June 17, Mr. Brown gave notice of the proposed amendment of the preamble and of section 1A, which had become 2 in the reprint. He also gave notice that in substitution for section 2 it would be asked that the Act come into force on June 10, 1925, except the provisions for taking the vote, which would come into force on December 10, 1924.
Great efforts were now made to get the strongest support possible. There were staunch friends in all the parties in the House and an effort was made to discuss the merits of the measure with those members who had not already made it clear that they were firmly set for or against union and to provide our friends with the material they would require in dealing with the many phases of the subject, legal, ecclesiastical and practical. Drs. Young and Pidgeon and Gunn were a tower of strength in this work. They knew their subject thoroughly and had the respect and confidence of the members whom they had to meet. We also had most valuable assistance from several Ottawa ministers. We prepared a memorandum on the different sections of the Bill and distributed this to the members. Mr. R. B. Whitehead was giving much assistance at this time. Hon. Mr. Rowell, Mr. Tilley and Mr. McGregor Young had to leave for England and in their absence we were fortunate in having Mr. Geoffrion and Mr. Alex Smith for consultation.
On June 23, 1924, the Prime Minister gave notice of motion as follows:
Resolved that inasmuch as questions have arisen and may rise as to the powers of the Parliament of Canada under the British North America Act to give legislative effect to the visions of this Act, it is hereby declared that it is intended by this Act to sanction the provisions therein contained in so far and in so far only as it is competent to the Parliament so to do.
This was drafted by the then Deputy Minister of Justice, the future Mr. Justice Newcombe of the Supreme Court of Canada, and at the request of the Prime Minister. There was no opposition as the view taken by counsel for the Bill was that nothing was lost by the amendment and that all the important sections of the bill except those peculiarly within the domain of Parliament would be repeated in the Provincial legislation, so that no question could arise as to the validity of such sections.
On Tuesday, June 24, 1924, Mr. Robert Forke, (later Senator Forke) the sponsor of the Bill, moved that the House go into Committee on the Bill, No. 47. Mr. Brown of Lisgar immediately moved to strike out the Duff amendment. He said it was not the function of Parliament to define the creed or polity of the Church but to give the Churches legal sanction to administer their affairs according to the terms mutually agreed upon by them. He submitted that Parliament had only two questions to consider: (1) Had the Churches followed their constitution and accepted methods of procedure, and (2) has proper provision made for minorities? He outlined the general organization of the negotiating Churches and indicated the procedure followed. He said there could be no thought of the destruction of one body when it united with another and that it was never felt that any branch of the Presbyterian Church was destroyed in the union of 1875. If it were a fact is it seemed to be - that there is more difference in faith within the bounds of the Presbyterian or Methodist Churches than between the two their identity would not be sacrificed any more than the identity of the Churches entering the union of 1875 and the Methodist Union of 1884. The Duff amendment was a direct challenge to the right of each church to determine its own doctrine, polity and destiny. The conception of the relation of Church and State in Britain was not that of the House of Lords decision of 1904 but that of the declaratory articles approved by the Imperial Parliament in 1921. The purpose of the negotiating Churches was to secure legislation and avoid the litigation the amendment would now thrust upon them. The work of the Churches had been disturbed during the negotiations, temporary arrangements had been made and they would stiffer through longer delay. In any event a decision adverse to the Assembly would not settle the matter because the Church would come to Parliament for relief as the Scottish Churches had asked the Imperial Parliament for relief. Why not at now?
Mr. Duff followed. He reviewed the votes on union and expressions used by unionist leaders in the Assemblies as to the necessity for unanimity and contended that the Bill is presented to the House had not been approved by the Churches. He then dealt with the consideration of the Bill by the Committee. He insisted that the question as to the power of the Presbyterian Church to enter into union was already before the Courts and that the action was going on. He complained of speeches of Principal Smythe and Dr. Leslie Pidgeon and of a letter said to have been written by the Minister of Agriculture (Hon. Mr. Motherwell) in favour of the Bill. He admitted the recent Assembly had voted overwhelmingly in support of the bill but said this did not amount to very much. He said the women of both the Methodist and Presbyterian Churches were opposed to union. He argued that if amendments were desired the bill should have been referred back to the Committee. But he then quoted Todd to show that it is only very rarely that a bill once reported will be referred back to the Committee. He said that the intention was to have a Church which would dictate to Parliament year after year and that the bill involved wholesale coercion and confiscation.
Mr. Herbert Marler supported the Committee's report. He thought Parliament not competent to pass upon the legal question involved and that no harm would be done by delay. He also objected to any variation of trusts without a legal decision citing the Morrice bequest to the Presbyterian College in Montreal in 1882 as being intended to maintain the principles and standards of the Canada Presbyterian Church. He also held that the report of Committees of the House should be accepted by the House.
Mr. R. J. Woods, of Dufferin, referred to the provisions of the bill for protecting minorities and to previous requests to Churches for legislation, which had always been granted.
Mr. Bird went to the root of the question in pointing out that all the complaints made by opponents were merely variations of their basic position that they challenge the right of the Church to exercise its corporate authority in matters of doctrine and Church government. He claimed that a Church has the right to adapt itself to its environment in time and place. If the Presbyterian Church were to be bound forever to the standards of the 17th century it would be a fossil. Leaders opposed to union held the most up to date views in theology but "would bind burdens grievous to be borne" upon their fellows. The whole trend was now towards reunion and many converging lines of ecclesiastical traditions had already come together in each of the uniting Churches in Canada. Canadians should lay stress upon the invisible bonds which bind people together in spite of sectional differences and divergent points of view and the proposed union would weld the country together from coast to coast. The men whose opinion should be taken as to whether union was for the good of the Church were first the foreign missionaries and then the rural ministers and both classes were overwhelmingly for union. To adopt the Duff amendment would be to take away from the Church a responsibility that should rest with the Church itself.
Dr. Murray MacLaren, of Saint John, N.B., claimed that the movement for union in the Presbyterian Church was clerical and official. The Assembly was not representative of the membership. In many cases the Commissioners favoured union but their congregations were opposed to it. The union of 1875 was a re-union. The dissenting congregations remained in their mother church - they were not cast adrift as isolated congregations without their Church. The Imperial Parliament legislated in 1905 because the Wee Frees could not adequately carry out the trusts of the property. The Imperial legislation of 1921 provided that the changes that might take place must conform to the Westminster Confession of Faith. The action taken by the courts of The Presbyterian Church in Canada was taken before 1921 and in any event the British legislation had no application to Canada. The General Assembly is not the Church. It is only a committee to carry on the Church's business affairs. Nothing gave it the power to abolish the church. The Privy Council had held that property could not be diverted to a different purpose from that for which it was originally intended. The Courts should decide as to the power of the Assembly and as to whether property could be transferred without a breach of trust. Parliament had not the power to merge together people who do not wish to be merged. 'There was no need to incorporate a church. There had been no delay in commencing litigation as Mr. Chrysler had advised that action would have been premature before application was made for legislation.
Mr. McGiverin, of Ottawa, chairman of the Private Bills Committee, said that apart from the Duff amendment the provisions of the Bill practically followed what was asked by the promoters of the Bill. He referred to paragraphs of the Statement of Claim in Cunningham vs. Pidgeon and said there appeared to be a vast difference as regards doctrine and faith between the Westminster Confession and The Basis of Union and that there was serious doubt as to the powers of the Assembly. The reference to the Supreme Court would prevent litigation in the provinces. A vote taken at a later date than 1915 would have assisted Parliament. To forbid a reference to the Courts would be to decide a religious question without any reference to the minority. If the courts decided against the Assembly it would be the duty of Parliament to meet the situation.
Mr. E. C. Porter, of Belleville, urged the House to follow the decision of the Committee. The rights of minorities must be protected.
Mr. J. S. Woodsworth, of Winnipeg, said that the heart of the bill was in the words that the churches desire to unite "without loss of their identify." They had taken the constitutional steps. The bill forced no one to go into the Union. It made fairly generous provisions for the division of general church property. Anti-unionists said the bill was beyond the powers of Parliament, that the trusts could not be diverted, that the Assembly could not annihilate the Church and that no Church could deviate from the Westminster Confession and remain a Presbyterian Church. But it was for Parliament and not the courts to decide the question at issue. Litigation would mean delay and the matter would undoubtedly come back to Parliament again as was the case in Scotland. As to trusts, there were two divergent views, one, that the church is a fixed organization irrevocably based upon one unalterable standard of doctrine; the other, that it is a living organism adapting itself to new conditions. Because some men decades ago gave a donation must we tie the hands of people trying to grapple with the problems of today? As to annihilation, surely the church is the best judge of what her real life is. The whole structure of the anti-unionist case was built on the theory of the unalterableness of doctrine but it was hardly conceivable that they would subscribe unreservedly to every word of that creed. The Church has an absolute right of freedom of self-determination, of deciding whether it wants union with other bodies. As to property arrangements, the division of general property was more generous to the opponents of union than in any previous union. There should be some provision for the division of the property of each congregation where there is a minority but this must be a matter for provincial legislation.
Mr. Raymond, of Brantford, urged that the courts should deal with the question and that justice demanded this course.
Mr. Putnam, of Colchester, said that in view of the wide publicity given to the proceedings before the Committee, the usual reason for not reversing the decision of a committee did not exist. Further, counsel had not been heard on this particular amendment. The opponents of the union were willing to let the Bill become law if it ran the gauntlet of two conditions, one as to the powers of the Assembly and the other as to the power of Parliament. Therefore the Bill could hardly be fraught with injustice or any great evil. The General Assembly had in mind the unfortunate litigation in Scotland and what followed and in the Appendix on Law attached to the Basis of Union it was made clear that legislation would be sought in order to avoid litigation. In the United States, the Supreme Court decision in Watson vs. Jones, 80 U. S. R., 679-789, was opposed to the Wee Free decision and recognized the rights of the church courts to settle their own problems. The rights of majorities need protection and what chaos would follow if after all these years the majority of Presbyterians and all Methodists and Congregationalists must in the future lie helpless behind a strict interpretation of the constitutional procedure in the Presbyterian Church. It might be held by a civil court that the constitution of the Presbyterian Church is forever impossible of being changed or departed from. This theory had been overridden in Scotland, the home of Presbyterianism, and can be here without the violation of the conscience of any reasonable man.
Hon. E. M. Macdonald, of Picton, Minister of National Defence, raised the objection that Mr. Brown's amendment was out of order, but the Deputy Speaker ruled otherwise. Mr. Macdonald then read a letter from Rev. D. M. Gordon, D.D., former principal of Queen's University, stating that he had been in favour of union but was opposing the Bill as it would disrupt the Church, and contended that the Cunningham vs. Pidgeon action should be allowed to proceed.
The debate was then adjourned until Thursday, June 26, on motion of the Prime Minister.
On the resumption of the debate, Mr. Alfred Stork of Skeena, B.C., stated that the objections raised to the Duff amendment were that there would be no finality, that the court proceedings would be prolonged and that they were started merely to delay union. To meet this, he moved in amendment to Mr. Brown's motion, the addition of the following words after "tenth day of December, 1924":
Provided that as respects the Presbyterian Church in Canada the provisions of this Act shall apply only when all doubt has been removed as to the power of the General Assembly of the Presbyterian Church in Canada under its constitution and rules to agree to a union of the Presbyterian Church in Canada with the Methodist and Congregational Churches upon the basis of union as set out in schedule "A' of this Act; Provided further, that this question shall be submitted for decision to the Supreme Court of Canada by a reference to the Minister of Justice.
Mr. W. J. Hammell, of Muskoka, objected that a day's notice had not been given as required by rule 112 and after a debate the point of order was sustained, the notice of the amendment not having been available to members until ten o'clock that morning.
Rev. A. J. Lewis, of Saskatchewan, a minister of The Presbyterian Church in Canada, said that the Duff amendment had been inserted at an opportune time when opponents of the bill had a majority in Committee. He referred to section 31, subsection 3 of the Westminster Confession as supporting the power of the Assembly. He showed that seven-eighths of the Commissioners to Assembly are changed yearly - of the 533 voting on the union question at Owen Sound in 1924, 431 had not voted on union at Winnipeg in 1916, Toronto in 1921 or Port Arthur in 1923. In the four Assemblies, 90 per cent. of the votes for union and 87½ per cent. of the votes against union were given by different persons. It was said that the Bill had not been approved by the Assembly but the 1924 Assembly had ratified it by an overwhelming majority. The power to change doctrine resided in the Church and the Basis of Union having been approved under the Barrier Act became the real doctrine of The Presbyterian Church in Canada and had also become the doctrine of the other negotiating churches. The doctrine of the three having become identical the Scottish case had no application.
Mr. Gordon Wilson, of Wentworth, said that feeling in the Presbyterian Church had turned against union and that the Assembly was not representative of the people on the question. His remarks about the name are interesting in view of later contentions. "The name is not going to be used but the unionists will not allow those who wish to remain Presbyterians to call themselves The Presbyterian Church in Canada. What is the difference between 'in' and 'of'? It means practically all the difference in the world. It means that when they take The Presbyterian Church in Canada, they take their record, they take their trusts and everything with it, and then they say in their generosity afterwards, 'You can call yourselves Presbyterians, but it must be the Presbyterian Church of Canada, because we have absorbed in The United Church of Canada the Presbyterian Church in Canada."'
Hon. H. H. Stevens, of Vancouver, said he would support the amendment of Mr. Brown. He believed it to be the right of every organized religious body to determine within itself what procedure it should follow. He contended that the private bills committee should not alter a private bill so as to change the principle and intention of the measure. The churches had followed their constitutional procedure; the committee had no right to say that two of them were right and that the bill must be suspended until certain things were determined by the courts. The basis of the whole matter was the union of the three bodies.
Mr. F. S. Cahill, of Pontiac, doubted that the Assembly had the right to consummate the union. He found it impossible to come to a sound decision and thought the courts should decide.
Mr. Forke, of Brandon, pointed out that the Presbyterians who were opposing union were the Presbyterians who were finding fault with the courts of their own Church. In his own home the churches bad formed a local union because during the war they had met for patriotic work and felt they could unite for religious work. He believed that the Assembly had full power to consummate the union. To go to the courts would mean endless confusion and waste of time. In the meantime what would happen to the hundreds of union churches all over the prairies?
Mr. Baldwin, a Protestant member from Quebec, said he believed the union would promote Canadian unity and would make for spiritual and economic advantage. The movement was only the beginning of a united church in Canada.
Mr. J. D. Chaplain, of St. Catharines, said that the reference to the courts was not a change in the principle of the bill and quoted Mr. Lafleur's statement that the Assembly could not put an end to the Church.
Mr. McBride, of Cariboo, claimed for Ireland the honour of planting the Presbyterian Church in Canada, through Rev. James Murdock of County Donegal whose parish was all of Nova Scotia and Rev. John Hall of Bailieboro' who planted the church west of the Rocky Mountains. He maintained that the Committee had had no opportunity to study the amendment and that it was forced through in less than an hour after the bill had been considered for three weeks. If the General Assembly was not the head of the Church what was its head and what other organization was there that had not a head?
Mr. McConica, a former Presbyterian minister in the United States, pointed out that the Church was a voluntary organization and that a member became subject to its rules one of which was that the majority governs. Nothing was to be gained by litigation and the question should not be hung tip indefinitely.
Mr. L. J. Ladner, of Vancouver, felt that a time comes when Parliament must function without too much regard to technicalities. Most members were in as good a position as the members of the Committee to pass judgement. The Assembly had adopted union in 1916. Now the petitioners came to ask for legislation and it was intended to hand them a lawsuit. The writ was only an excuse; it could have been issued in 1921 or 1922 or 1923. The basis of agreement was reached in 1916. The proper principle was the rule of the majority with fair treatment of the minority. To Mr. Wilson's question whether there was not a majority in the Committee, Mr. Ladner said the principle was not to be followed when the vote was 27 to 23 and about 14 members were rushed in who did not know much about what they were voting for. In answer to Mr. Macdonald's suggestion that a plebiscite in 1915 was too old, Mr. Ladner asked what he would do with the agreement of 1916.
Mr. D. A. Mackinnon of Queen's, P.E.I., said that the churches should not have to go to the courts. The bill in its present form gave every congregation a right to vote. A commission was to divide the general property. The matter of congregational property was for the provincial legislatures. Recourse to litigation merely meant the continuation of the present ferment.
Hon. George P. Graham, of Brockville, said that the function of Parliament was to say "you can unite" or "you cannot unite." If during twenty years of discussion the Presbyterian Church had been satisfied to allow the General Assembly to remain the legal mouthpiece of the Church, Parliament ought to take its expression as the expression of opinion of the Presbyterian Church. If the voice of the General Conference of the Methodist Church were not to be taken, what voice could be taken as the voice of that Church? The churches have said through the organization that they have erected and maintained from time immemorial, that they desire the union. If Parliament has the right to encroach on the rights of the Churches it his the right to create a state church in Canada.
The Prime Minister, Mr. Mackenzie King, desired to make it clear that the Government as a government assumed no attitude and had no responsibility for the outcome of the vote. He referred to rumours that he had requested members of his party to adopt his own attitude on the matter and said he had not desired that any member of Parliament should vote other than as his conscience and sense of duty impelled him to do. He said that the questions arising were:
He thought that those who had had to do with the measure had endeavoured to consider the rights of minorities in a broad and generous way, and that it was generally agreed that the procedure of the churches as far as it related to matters other than the power of the Presbyterian Church to form the contemplated union was regular and in accordance with the constitution and polity of the respective churches;. It was important not to legislate as to any matters concerning property and civil rights in the provinces and he had drafted a clause to declare that parliament was not going beyond the scope of its authority. He had little sympathy with the view that the Presbyterian Church even by the will of its constituted authorities had not the power to form a union with the other churches. If such a power did not exist, he could not see why Parliament should not speedily remove that disability. He could not, therefore, support the amendment passed by the Private Bills Committee (the Duff amendment) because it contemplated litigation that would last over a period of years. On the other hand, he could not support a method of proceeding that would compel the Presbyterian Church to unite with the other churches while a large proportion of its following believed it had no power to unite. He thought that the Stork amendment provided a way out as it provided that the bill should go into force in July 1925, but with the proviso that the question of the power of the Presbyterian Church to enter into union should be settled by the Supreme Court on a stated case.
Mr. Forke asked what would happen if the court decided against the power of the General Assembly to enter union, would two churches be united. The Prime Minister replied that if the Court decided that the power existed the legislation would become effective. If not, and the disability was of a character that should be removed, all that would be needed would be to ask Parliament to remove the disability. He asked whether any member believed that if Parliament were asked to remove a disability that did not commend itself to the judgment of Parliament and which prevented a great Church, following its procedure and constitution, from uniting with other Churches, Parliament would refuse so to act. He thought the House would be prepared to come to the relief of the Church if it were shown wherein the Church could not control its own destiny, shape its own polity and do as it willed as to its own doctrine. Inside of two or three months it could be settled whether the Presbyterian Church had power to enter union. Then he added, "If it is found that the Presbyterian Church has not that power, and the majority of its members want that power given to their Church, and ask this Parliament for it, I believe Parliament will be prepared to give the necessary powers to form a union."
Mr. Ladner asked how a stated case could be prepared involving facts which were at issue and questions of doctrine and origin. Mr. Hoey asked if the Prime Minister wished to be taken seriously when he contended that the people of Canada would accept the judgment of a civil court in matters respecting doctrine? Mr. King replied that if objection were taken to the Supreme Court as a tribunal, a commission might be agreed upon.
It had been expected that the Prime Minister would oppose Mr. Brown's motion to strike out the Duff amendment and that the Leader of the Opposition, Mr. Meighen, would support it. As the Prime Minister was about to resume his seat, and it seemed that the vote was imminent, Mr. Meighen was seen to button the top button of his coat, an unfailing sign that he proposed to speak notwithstanding that it was after midnight and that the House had been in session well into the morning of the previous day during the debate on the Murdoch charges. He arose to deliver what was generally regarded as not only the finest speech of the debate but also as a contribution of permanent value to the discussion of the question as to the function of Parliaments in matters respecting the Church. His opening was graceful. He referred to the inclinations and associations that would induce him to oppose the legislation but said that the line of reason and of duty led him the other way, that in his judgment it was the duty of Parliament to pass the bill, and that it could not evade that duty usefully either by passing the Stork or the Duff amendment. He was in agreement with the Minister of Railways (Hon. Mr. Graham) that the three Churches had expressed their will through those tribunals which were alone empowered to express their will. They had also taken action on it themselves - they had formed a union to the utmost of their power and asked the legislation because of the civil and property rights involved and the desirability of putting into corporate form the union so effected. His own view was that the Presbyterian Church had the inherent power to enter into union and had delegated that power to the Assembly. The power to unite was nothing more or less than the power to change doctrine. He dissented entirely from the theory that there exists in Parliament or in any court the right to say what is fundamental in doctrine and what is not. The Church must have power to exercise this prerogative unrestrained by the authority of any Parliament or Court.
In the Free Church case the courts had not decided that the Church did not leave the power to enter union; they decided that the Church had not delegated that power to the Assembly. The basis on which that case was decided, the inability of the Assembly of the Free Church of Scotland to change the doctrine, was wholly absent in the case of The Presbyterian Church in Canada. Textually and by precedent there was evidence of the exercise of the power throughout the history of the Church. There had not been any fundamental or radical change but such change is always unlikely because of the constraint of tradition. The provisions of the "Blue Book" showed the right of the Assembly to change doctrine, subject to compliance with the terms of the Barrier Act and it was for the Church to say what change should be made, whether great or small.
But even were the Church without the power, Parliament could not refuse an application from the Presbyterian Church to be given that amplitude of power enjoyed by the Church of Scotland as a result of the legislation of the Imperial Parliament in 1905 and in 1921. That Parliament had concluded that it was not fit or right that it should superintend or censor alterations of doctrine made by the Church itself. The Prime Minister of Canada had said that if the constituted authorities of the Church came and asked for the right to enter union, Parliament would give it. Well, these authorities were now asking for this very thing. Why throw the Church into litigation; why prolong the controversy if it would be bound to end ultimately as it would end by passing the legislation now?
At this point, Mr. Meighen again emphasized the absolute necessity of conceding to the Church the full and unrestrained right to alter doctrine, whether it existed today or not. Could Parliament, he asked, say to a Church, "Though your majority desire a modification of doctrine, you cannot make such modification because it is diverting the trust funds that you possess?" And he answered: "If we say that, we merely compel the Church to drift lifelessly on the reefs of time while its children abandon its altar and its creed."
Should Parliament strive to hold the church within the rigid restraints of any doctrine accepted years before and say that such and such a thing must be done because of trusts the Church has under its care or should it hold that the Church shall be the author of its doctrine and that the trusts will follow the destiny of the Church?
The speaker then addressed himself to the amendments suggested. There were many objections to the Duff amendment. It made the coming into force of the legislation depend upon the making of a declaration by the courts in an Ontario action that might never be made in view of the frame of the action, and the legislation could be defeated by merely dropping the action. The litigation might have been commenced long before and no application for an interlocutory injunction had been made. The litigation was being held as a sword over Parliament. As to the Stork amendment, if the court held that the Assembly was without power the other two Churches were forced into a union they did not want. A question could be put to the court as to the power of the Assembly but it would not be a stated case, which involves the admission of facts, and if such a question were put, the court would have to ascertain the facts and these were disputed. This meant a lawsuit and not a stated case.
In any event the end of the road was the same. If the court finds the Assembly has not the power, the church will ask for the power - Therefore, why delay?
The vote followed. Being a vote in Committee of the Whole, it was not recorded. The yeas were 110, the nays 58, and in the midst of tense excitement the Duff amendment, intended to kill the bill, passed out.
The vote was not on party lines - 168 of a total membership of 234 voted.
The Progressives present supported the Brown motion solidly. The Conservatives
were almost evenly divided with a slight majority in favour of the motion.
The Liberals opposed to the motion were in the majority; the French Canadian
members of the party divided, the majority of them opposed the motion.
Of the Cabinet, Messrs. Lapointe, Graham, Robb, Motherwell, Low, King,
Stewart and Sinclair were for the motion, while the Premier and Messrs.
Beland and Macdonald were opposed. In the Conservative ranks, Messrs. Tolmie,
Guthrie and Manion opposed the motion, while Messrs. Meighen, Stevens,
Baxter, Stewart and Ladner supported it.
...