IMAGE EVALUATION TEST TARGET (MT-S) // '^ h ^^< (/. fA ^ 1.0 I.I 1.25 i;^|28 1.8 JA mil 1.6 9 e ^ /i /2 ">:^/ c? A '^ / CIHM/ICMH Microfiche >*<^ ■ CIHM/ICMH Collection de microfiches. Canadian institute for Historical Microreproductions Institut Canadian de microreproductions histotiques 1980 Technical Notes / Notes techniques The Institute has attempted to obtain the best original copy available for filming. Physical features of this copy which may alter any of the images in the reproduction are checked below. L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Certains ddfauts susceptibles de nuire d la quality de la reproduction sont notis ci-dessous. D Coloured covers/ Couvertures de couleur D Coloured pages/ Pages de couleur m Coloured maps/ Cartes gdographiques en couleur Pages discoloured, stained or foxed/ Pagei'i ddcolordes, tachetdes ou piqu6es Tight binding (may cause shadows or distortion along interior margin)/ Reliure serrd (peut causer de I'ombre ou de fa distortion le long de la marge int6rieure) n Coloured plates/ Planches en couleur Show through/ Transparence Pages damaged/ Pages endommagdes n Additional comments/ Commentaires suppl^mentaires Bibliographic Notes / Notes bibliographiques n Only edition available/ Seule Edition disponible Bound with other material/ Reli6 avec d'autres documents Cover title missing/ Le titre de couverture manque Plates missing/ Des planches manquent Additional comments/ Commentaires suppl6mentaires D D D Pagination incorrect/ Erreurs de pagination Pages missing/ Des pages manquent Maps missing/ Des cartes gdographiques manquent The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. The last recorded frame on each microfiche shall contain the symbol —»> (meaning CONTINUED"), or the symbol V (meaning "END"), whichever applies. Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettetd de I'exemplaire film6, et en conformity avec les conditions du contrat de filmage. Un des symboles suivants apparaTtra sur la der- nidre image de cheque microfiche, selon le cas: le symbole —»- signifie "A SUIVRE", le symbole V signifie "FIN". The original copy was borrowed from, and filmed with, the kind consent of the following institution; Library of the Public Archives of Canada Maps or plates too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams Illustrate the method: L'exemplaire film6 tut reprodnst grSce d la g6n6rosit6 de I'dtahlissement prdteur suivant : La bibliothdque des Archives publiques du Canada Les cartes ou les planches trop grandes pour dtre reproduites en un seul clichd sont filmdes d partir de Tangle sup6rieure gauche, de gauche d droite et de haut en bas, en prenant le nombre d'images ndcessairo. Le diagramme suivant illustre la m^thode : 1 2 3 1 2 3 4 5 6 PJ or l)i of all lb) Cn du en Ot of Dc lie Qi M( Es Es tio of sai Ch au( lie! of] CANADA. PBOVINCK OF QUEBEC, District of Montreal, The Reverknd Rojucrt Dobie, 3?ciii!atscr ; VS. Board for the Management of the Temporalities' 'Fund of the Presbyterian Church of Canada, in CONNECTION WITH THE ChURCH OF ScOTLAND, etcli., SBcSp otitic tits. To the Honouvahlc thr Superior Court for Lower Canada, District of Montreal, or to any one of the Honourable Justices of the said Court sitting in and for the District of Montreal. The humble Petition of the Reverend Kobert Dobie, of Milton, in the County of Halton, in the Province of Ontario, and Dominion of Canada, Minister; person- ally, and in his qualities hereinafter mentioned, Petitioner, complains of the "Board for the Management of the Temporalities' Fund of the Presln'terian Church of Canada in connection vi'ith the Church of Scotland," a body politic and corporate, dul}' incorporated, and having an office in the City of Montreal, and of the Rever- end Daniel M. Gordon, Bachelor of Divinity, Minister of St. Andrew's Church of jq Ottawa, Province of Ontario; Reverend John Cook, Doctor of Divinity, Minister of St. Andrew's Church, of Quebec, Province of Quebec; Reverend John .Jenkins, Doctor of Divhiity, Minister of St. Paul's Church, of Montreal, Province of Quebec ; ReA'erend Gavin Lang. Minister of St. Andrew's Church, of Montreal, Province of Quebec ; Sir Hugh Allan, of Ravenscraig, Montreal, Province of Quebec ; John L. Morris, Esquire, Advocate, of Montreal, Province of Quebec ; Robert Dennistoun, Esquire, County Judge of Peterborough, Province of Ontario ; and "William Walker, Esquire, Merchant, of Quebec, Province of Qr ebec, Respoiidents ; and avers : That Petitioner is a Minister of the Presbyterian Church of Canada in connec- tion with the Church of Scotland, and a member of the Synod thereof and Minister 20 of the church and congregation designated " St. Andrew's Church" in Milton, afore- said, in connection with and tinder the ecclesiastical Jurisdiction of the Presbyterian Church of Canada, in connection with the Church of Scotland. That said Petitioner is a Member and Minister of the Church of Scotland, and a Protestant Clergyman. ^ > , That the said Respondents, the Board for the Management of the Temporali- ties' Fund of the Presbyterian Church of Canada, in connection with the Church of Scotland, is a body i>oliiic nnd corporate, duly incorporated itnder a Statute of the heretofovo Province of Canada, 22: Vic. Cap. G6; having an oflicc in the city of Montreal, in thu District of Montreal, in the Province of Quebec. ' That, in the year eighteen hundred and lifty. Petitioner was du ly licensed as a probationer and minister of the Church of Scotland by Law Established in that part of the United Kingdom of G^reat Britain and Ireland, called Scotland, and Petitioner came to the heretofore Province of Lower Canada, now the Province of Quebec, as an ordained missionary of the said Church of Scotland in the year eighteen hundred andfilty-two, and thereupon commenced and continued to labour and preach and teaih as a missionary and minister of said last mentioned Church continuously in the said city of Mont'.eal, until the year eighteen hundred 1^ and lifty-three. That subsequently, on or about the seventh day of October, eighteen hundred and fifty-three, Petitioner, as a minister and missionary of the said Church of Scot- land, removed from the said City of Montreal, and was admitted to and became a m»>mber of the Presbytery of Glengarry, in the novs' Province of Ontario, which said Presbytery was then and still is under the ecclesiastical jurisdiction of the Presbyterian Church of Canada, in connection with the Church of Scotland, and of the Synod of the said Presbyterian Church of Canada, in connection with the Church of Scotland, and thf Petitioner thereupon became a member and a minister of the said Presbyterian Church of Canada, in connection with the Church of Scot- ■^^ land, and as such was duly appointed as minister and incumbent to the charge and pastorate of the Church and congregation in connection therewith, designated the Church and congregation of Osnabruck, situated in the Township of Osnabruck, in the County of Stormont, in the now Province of Ontario, then the section of ihe Province of Canada, known and desin-nated as Upper Canada, and also as Canada AVest. That since said last mentioned date, Petitioner has continued to be and to act as a minister of the said Presbyterian Church of Canada, in connection with the Church of Scotland, within the heretofore Province of Canada and within the Dominion of Canada, ai'd has been at all times, and is now, as such, in good standing ^^ in the said Church and in the Synod thereof. That the Petitioner, a.- a member and minister of the Church of Scotland, and as a member and minister of the Presbyterian (Church of Canada, in connection with the Church of Scotland, and as a member of the Synod of the said last men- tioned Church, and as a Protestant clergyman, since the date of the Petitioner's in- duction into the ministry as aforesaid, continuously tTuto the present time, became and was entitled to a share of and to a right of ownership in and to participate in the proceeds of certain lands of the Crown within the Provinces of Upper and Lower Canada, respectively, and in the rents, profits and emolixments derivable therefrom, as in the Acts and Enactments relating thereto declared. ^^ That by Acts of the Imperial Parliament of Great Britain and of the Imperial Parliament of the United Kingdom of Great Britain and Ireland, the Sovereigns of Great Britain and of the United Kingdom of Great Britain and Ireland, were em- powered to authorise the Governor, or Lieutenant Governor, of each of the then Provinces of Upper and Lower Canada, respectively, to make from out of the Lands of the Crown within said Provinces re8i)ectively, sitch allotment and appropriation of Lands as therein mentioned, lor th(> support and maintenance of the Protestant \ 8 clergy within tho said Provincos, and to apply tho ronts, profits and emoluments which might at any time arise i'rom s\ich Lands, so allotted and appropriated, solely for the maintenance and support of a Protestant clergy within the Province in which the same might be situated and to no other pivrpose whatever. That subsequently thereto, in pursuance of (he said Acts, certain Lands of the Crown were from time to time reserved lor the purposes mentioned therein, which said lands were known, and were and are commonly designated by the name of the " Clergy Reserves." That the Governor, Lieutenant-Governor, and Administrator of the heretofore Provinces of Upper and Lower Canada, respectively, were empowered with the 1^ consent of the Executive Coxincil of such Provinces, respectively, and in pursuance of His Majesty's instructions, to sell and convey a part of the said "Clergy Re- serves" in each of the said Provinces, and to invest the proceeds oi such sales in the Public Funds of the said United Kingdom, and to appropriate the dividends and interests of the moneys so invested for the support and main- tenance of a Protestant clergy within the said Provinces, solely and to no other purpose whatever. That by another Imperial Act, the sale of the entire Clergy Reserves in the Province of Canada and the investment of the proceeds of such sale, and the distiibiition of the interests and dividends of such investment, subject to certain 20 conditions, were authorized for the purposes hereinbefoic mentioned. That by another Imperial Act the Legislature of the heretofore Province of Canada was authorised to dispose of said Clergy Reserves and to make such invest- ment of the proceeds thereof as to the said Legislature might seem meet, subject to the proviso, that it should not be lawful for the said Legislature of the Province of Canada, by any Act or Acts thereof as aforesaid, to annul, suspend or reduce any of the annual Stipends which had, previously thereto, been already assigned and given to the clergy of the Churches of England and Scotland, or to any other religious bodies or denominations of Christians in Canada (to which the faith of the Crown was pledged) during the lives or incumbencies of the parties then 30 receiving the same, or to appropriate or apply to any other purpose, any part of the said proceeds, invef tments, interests, dividends, rents and profits that might be required lor the jiayment of the stipends and allowances due or accruing to the Ministers and Missionaries of the said churches of England and Scotland during their lives or incumbencies. That the Imperial Acts, to wit, the Acts of the Parliament of Great Britain and of the United Kingdom of Great Britain and Ireland hereinbefore referred to^ the whole of which are herein invoked, are specifically referred to in the Act passed by the heretoiore Province of Canada, in the eighteenth year of the reign of Her Majesty Queen Victoria, entitled, 18 Victoria, Chapter 2. 40 That under and by virtue of the said last mentioned Act, it was enacted and declared that the moneys arising from the sale and disposal of the said Clergy Reserves in the said Province of Upper Canada should continue to form a separate fund, which should be called the " Upper Canada Municipalities' Fund," and that the moneys arising from the sale and disposal of the Clergy Reserves in the said Province of Lower Canada should continue to form a separate fund, which should be called the ' Lower Canada Municipalities' Fund," and that after deducting the ] c e h necossary oxponscs attending the salos of the ,said Clergy Reserves, and managing the same and the said Funds, the money forming the said Fixnds, or that had previously arisen therefrom, should be puid into the hands of the Receiver General of the heretofore Province of Canada, to ])e by him applied according to the purposes of the said last mentiont'd Act. That Ijy virtue of the said lost mentioiu^d Act, the annual stipend and allowance which had been, before the passing of the Act of Parliament of the United Kingdom, in the sixteenth year of Her Majesty's reign, assigned or given to the clergy of the Chuvclies of Knghind and of Scotland, or to any other religious ])odies or denominations in either section of the Province, and chargeable 1^ under th(f said Act of Parliament on the Clergy Reserves in such section (and to which the faith of the crown was pledged) should, during the natural lives or incumbencies of the parties, (to wit, the Ministers and Missionaries of the said churches aiul religious denominations receiving the same at the time of the pass- ing of the said Act, to wit, the Imperial Act 16 Vict.) be a first charge on the Municipalities' Fund for that section of the Province, and should be paid out of the same in preference to all other charges or expenses whatever. That by the Act of the late Province of Canada (18 Vic: Cap. 2) it was enact- ed that the Governor of the said Province of Canada might, whenever he might deem it exjiedient, with the consbut of the parties and bodies severally interested, 20 commute with the said parties such annual stipends or allowances for the value thereof, to be calcvilated at the rate of six pi>r centum per annum upon the probable life of each individual, and that such commutation amoxmt shoiild be paid accordingly out of that Municipalities' Fund, upon which such stipend or allowance was made chargeable by the said last mentioned Act. That under and by virtue of the said last mentioned Act, each of the Ministers and Missionaries of the Prcisbyterian Church of Canada in connection with the Church of Scotland, then receiving benelits within the said Province of Canada from the said Clergy Reserves, or from the proceeds thereof, or from the Municipalities' Ininds within the respective sections of the said Province of Canada. 30 was entitled to receive a sum of money as commutation for the value of the an- nual stijKMid or allowance payable to him therefrom, and for the interest which he had individually, and as a member of the Presbyterian Church of Canada, in connection with the Chiirch of Scotland, in the said Clergy Reserves and in the said Municipalities" Fund, arising therefrom. That the Synod of the Presbyterian Church of Canada, in connection with the Church of Scotland, was duly summoned for the purpose of taking such steps as might be nec;essary to enable the said Synod and the members thereof to take advantage of the commutation clauses in the said Act of the Legislature of Canada, 18 Vict. Cap. 2, and the said Synod duly met and determined and decerned as set 49 out in the minutes hereinafter cited, in the City of Montreal, on the tenth and eleventh days of .lai'uary, eighteen hundred and Kfty-five. The following is a copy of the Proceedings of said Synod, extracted from its official records at pages three to eight of the Proceedings of Synod for eighteen hundred and liftv-five. 'M ACn^S AND rROCliKDINaS OK THK Synod of the PrcHbyti'iiim Church of Canada, in connection with the C-hurch of Scotland, begun at Montreal the tenth day of January, and concluded the eleventh day of .Taniiary, eighteen hundred and fifty-five years. SESSION XXVI. Diet 1. At Montreal, and within St. Andrew's Church there ; Wednesday, the tenth day of January, one thousand eight 10 hundrf>d and fifty-five years. The which day, after sermon by the Reverend Dr. Mathieson, from Psalm xiiVlll. 12. 13 : "Walk about Zion and go round about her, tell the towers thereof: " mark ye well her bulwarks, consider her palacew, that ye may tell it tothegene- " ration following," the Synod of the Presbyterian Church of Canada, in connection with the Church of t^cotland, met, pro re nata, and was constituted with prayer by the Moderator, the ReA'erend James Williamson, A. M. Sederunt : M*- James Williamson, Moderator ; Mr. John McMurchy, Mr. John Barclay, Dr. Alexander Mavhieson, Mr. James Anderson, Mr. James C. Muir, Dr. John Cook, Mr. William Simpson, Mr. Alexander Wallace, Dr. l{ol)ert McGill, Mr. James T. Paul, Mr. Thomas 20 Haig, Mr. Archibald II. Milligan, Mr. John McDonald, Mr. John McKenzie, Mr. Hugh Urqixhart, Mr. John McLaurin, Mr. Thomas McPherson, Mr. Eneas McLean, Mr. Donald Munro. Mr. Thomas Scott, Mr. Andrew Bell, Mr. Robert Dobieand Mr. John White, Ministers ; together wi'h Mr. Alexander Morris, Mr. John Thompson, Mr. Thomas A. Gibson, nnd the lIon. Thomas McKay, Elders. The Moderator laid before the Synod a Requisition, which had been addressed to him, calling on him to summon a meeting of the Synod ; ?lso a copy of his cir- cular calling the present meeting. The same were read, jis follows : — QUEUEC, 11th Dec, 1854. Reverend and Dear Sir, 80 I beg to intimate to you that it is the opinion of the Committee of Synod, ap- pointed to watch the progress of Legislation in respect of the Clergy Reserves, that the Bill introduced by Government, having now passed both Houses of the Legis- lature, it is desirable that a meeting of Synod should be called as early as possible for the purpose of taking such steps as may be necessary to take advantage of the commutation clause in said Bill, and in name of the Committee I beg very res- pectfully to request that you will call such meeting at the time and place you tb'nk most convenient. I am, Reverend and Dear Sir, Your faithful servant, 10 JOHN COOK. 6 T^e, the undersigned, hereby concur in the necessity of calling ft special meet- ing of Synod at the earliest period the forms of the Church will admit. ' ALEX. MATHIESON, ROBERT McGILL. The Reverend, The Moderator of the Synod of the Presbyterian Church of Canada, in connection with the Church of Scotland. Kingston, 20th December, 1854. Reverend and Dear Sir, — 10 In compliance with a request addressed to me by the Convener and other members of the Committee appointed to watch ovsr the progreso of legislation in retipect to the Clergy Reserves, to call a special meeting of Synod as early ap possi- bL xor th(> purpose of taking such steps as may be necessary to take advantage of the Commutation clause in the Act which has lately been passed by the Provin- cial Parliament, I have now to intimate to you that a Special Meeting of Synod will be held in St. Andrew's Church, Montreal, on 10th January, 1855, being the second Wednesday of the month, at half-past six p m. 1 am. Reverend and Dear Sir, Yours faithfully, 20 JAMES WILLIAMSON, Moderator. P.S.— It has been thought by several of my brethren, with whom I have con- ferred on the subject, and I concur in the opinion, that in the circumstances of the case, Montreal is, on the whole, the most suitable place ibr the meeting of Synod on this occasion. The Synod unanimously agreed to approve the Moderator's conduct in calling this meeting. The Synod then called for the report of the Committee appointed to watch over the interests of the Church in regard to the Clergy ReservTs, which was given in and read by Dr. Cook, the ConA'encr, stating that the Bill for the Secular- ^^ ization of the Clergy Reserves, which had been introduced into Parliament by the Government, had been carried in both Houses, and assented to by the Governor- General : — that it contained v clause securing to all ministers settled previous to the 9th May, 1853, the date of the passage of the Imperial Act, payment of their salaries from the Clergy Reserve Fund dixring their lives or incumbencies, and at the same time authorizing the Government to commute the claims of incumbents, with the consent of the parties and bodies severally interested, and that the Com- mittee, for reasons which they stated, had not considered it expedient to interfere in any way with the passing of the said Bill, but, feeling assured from many considerations that it would be ibr the benefit of the Church to take advantage of 40 the Commutation clause of the Act, the Committee had requested the Moderator to call a ftro re nala meeting of Synod to take the matter into consideration, and make the necessary arrangements ; and the Committee further, and at great length, recommended that the Synod should agree to commutation. The Synod approved of the conduct of the Committee, and after some discus- sion, agreed to defer the further consideration of the report until to-morrow, and 7 instrucled tho nforrsai.l Committee to draft roHolutions to be then Inid l)etbre tho Synod for their considoralion as to their action in th(^ matter. The Synod agreed to spend a portion of time in the morning in devotional exercises. The Synod then adjourned, to meet again at half-past eleven o'clock to-mor- Tow forenoon, and ^vas clostnl Avith prayer. Diet JI. At Montreal, and within St. Andrew's Church there ; Thursday, the eleventh day of January, one thousand eight ^9 hundred and lifty-five years : — The which day, the Svnod of the Presbyterian Church of Canada, in connec- tion with the Church of Scotland, met, accordinc: to adjournment, and was con- stituted with i)rayer. On the call of the Moderator, the Eev. Dr. Cook conducted the devotional exercis(\s of the Synod in praist\ readinii- the scriptures, and prayer. The minutes of yesterday were read and a])proved. The clerk stated to the Synod, that he had received, a considerable time aoro, a letter from the Inspector General's Department of the Government, reqnestinrr him to make a retiirn, to be laid before Parliament, of all persons connected with-- this Church, "who al the date of the passing of the Act of the Imperial Parliament to make provision concerning the Cleray Reserves of this Province, viz : 9th Mav, 1H;)3. were receiving any income or allowance from such portion of the proceeds of the Clergy Keserves as had been granted to the Synod of the Presbyterian Church of Canada, in connection with the Church of Scotland, specifyinsrthe names and ages oi' such persons, the annual amounts of their allowance, and through whom it i.s jniid ; " and that he had immedia':ely issued a circular to the several paities. requesting a statement of their ages, to be rett\rned to him, — Mr. Allan, of Montreal, having kindly ottered to furnish him wit?i some other items ; — but that lie had been as yet unable to make the required relnrn. in consequence of a eon-"'^ siderable number ol' tlie ministers liaving nealected to make returns to him. although written to a second time on the subject; and that he had also, at the .suggestion of some of th(> Clerffv Reserve Commissioners, written to all of the l)arties whose names were on the Roll for salaries. The Synod, while approvimr of the conduct of the clerk, directed him to use all dilic'ence in in-ocurinii' as soon as possible, the whole of the required information, and in transmittinir to the (lovernment the list of incumbents up to 9th May, 1853, to ftirnish, at the same time, the names of tho.se since i)ut upon the roll as having, in the estimation of the Synod, claims ui»on the Fund. The Committee, appoijiled yesterday to arrange measures for the considera- 40 tion of the Synod, reported tain resolutions which the Synod proceeded to disicuss at length. The Synod, having heard the report of the committer a;ipointed by the Synod to watch over the ii\teresls of the Church, in as far as these miorht be affected by the action of the Legislature on the Clergy Reserves, and, i>lso. the verbal reports of such members of the committee as had be* n in communication with membors of.lhc Govonimeiit on tho subject, — and, having seriously and maturely considort'd that ilausiV of the ( 'lergy Kest'rv<'s Art, lately passed by the Profincial Parliament at its present session, by which His Excellency the Governor in Council is authorise.'., ,»:th the consent of the parties interested, to commute the salaries or allowances of ministers chargeable for life or during their incumben- cies on the Clergy Reserves Fund, for their value in money,- -Resolved, " 1st. That it is de.drable that such commutation, if upon fair and liberal " terms, should be effected ; and that the Rev. Alex. Mathie' on, D.D., of Mon- " treal, the Rev. John Cook, D.D., of Quebec, Hugh Allan, Esq., of Montreal. Jo', i " Thompson, Esq., of Quebec , and the Hon. j. homas McKay, of Ottawa Ci'v, be the ^^ " Synod's Commissioners, with full power to give the forraal sanction of *Ae TJynod " to such commutation as they shall appro\ «, the said Commissioners bebu • .' -ri _ " instructed to use their best exertions to obtain as liberal terms as jioSo.' 'e; the " Rev. Dr. Cook to be Convener ; three to be a quorum ; the decision of the majority " to be final, and their formal acts valid ; but that such formal sanction of the Synod " shall not be given except in the case of Ministers who have also individually given " them, the said Commissioners, power and authority to act for them in the matter • to grant acquittance to the Government for their claims to salary to which the faith '• of the Crown is pledged ; and to join all sums so obtained into one Fund, which ' " shall be held by them till the next meeting of Synod, by which all further regu^" " lations shall be made; the following, however, to be a fundamental principle- " which it shall not be competent for the Synod at any time to alter, unless with, •' the consent of the Ministers granting such power and authority; that the in- " terest of the fund shall be devoted, in the first instance, to the payment of c£112 " 10s. each, and that the next claim to be settled, if the Fund shall admit, and as '• soon as it shall admit of it, to the £112, 10s., be that of tlie Ministers now on the "Synod's Roll, and who have been put on the Synod's Roll since the 9th May- "1853; and, also, that it shall be considered a fundamental principle, that all "persons who have a claim to sixch benefits, shall be Ministers of the Presbyterian " Church of Canada, in connection with the Church of Scotland, and that they 80 " shall cease to have any claim on, or be entitled to any share of said commuta' " tion Fund whenever they shall cease to be Ministers in connection with the said " Church. "2nd. That .«o soon as said commutation shall have been decided upon, and " agreed to by the said Commissioners, the Rev, John Cook, D.D., of Qu:>bec, shall "be fully empowered and authorised, and this Synod hereby delegate to the said " Rev. Dr. John Cook full power and authority to endorse and assent to the several " Powers of Attorney from the individual parties on behalf of the said Synod, and " in their name, and as their Act and Deed, as evidencing their assent thereto. " 3rd. That all Ministers be, and they are hereby enjoined and entreated, (as to 40 " a measure by which, under Providence, not only their own present interests will " be secured, but a permanent endowment for the maintenance and extension of " religious ordinances in the Church) to grant such avih^iity in the fullest manner, •' thankful to Almighty God that a way so easy, lies open to them for conferring so " important a benefit on the Church. " 4th. That the aforesaid Commissioners be a Committee to take the necessary " steps to get an Act of Incorporation for the Management of the General Fund, t ii ill c ))( or ti( se ill wi IXli iio Ki nei the AVI the iiicl Ilea the tost (ivi and the; tud( ill t the cd 1 trail to !•( term distr to. 9 " so to bi^ ohtainod ; tho aforesaid Commissioners to constitute the said Corporation ' till the next meetinff of Synod, when four more members shall be added by the '■ Synod." The Synod ordered the minutes of this muetin^' to be printed, and a copy sent to each Minister as soon as possible, and they further instnx(>ted their Commission- ers, named abov*^, to addre .s a cirtular to the several ministers, showing them the importance of •ommutiiig' ni)on the plan agreed to at this meeting, and giving them full information on the subject. The Synod requested their Moderator to convey to the Hon. John Hamilton, of Kingston, and the Hon. Thomas McKay, of C tawa, the thanks of this Synod 10 for the assistance afforded by them to the Clercy Reserve Committee of this Synod, when lately met at Quebec, and for their exertions on behalf of the intere.sts of this Church, especially during the present seivsion of Parliament The b'Tsiness ibr which the si)ecial meetinir of Synod had been called, having been finished, the Reverend Dr. Mathieson stated 'that he availed himself of the opportunity which this s^iecial meeting of Svnod aflbrded to direct the atten- tion of the con'jregations within the bounds lO the call made by the General As- sembly oi the Church of Scotland, and nenerously responded to by every parish in the land to contribute to the National Patriotic Fund for the relief of the wives and children of the brave men who have been disabled or found a soldier's 20 grave in fighting lor the honour of their country, and the liberty, and (it is to be hoped), the ultimate peace of the world, and the advancement of the Pedeemer's Kingdom : and, also, to the circumstance, that several of the congregations in con- nection Avith this Synod have already contributed or were anxious to contribute their subscriptions throuuh the channel thus afforded them, to the Patriotic Fund." AVhercujion Dr. Mathieson moved to resolve, aiid it was resolved accordingly : 'That this Synod deejily sympathise with Her Majesty and her people in the great struoglo, in which she has lieen constrained to engage, for the liberty and independence of nations. Symjiathising also with the numerous fimiilies, who.se hearts, in the inscrutable Providence of God, have been filled with sorrow for<"0 the loss of their natural i)rotectors. or their friends who have fallen in the con- test, and being deeply >ensible of, and grateful for, the inestimable bles.sings, both civil and religious, which this colony enjoys, under Her Majesty's gracious sway, and its connection with the parent State, this Synod strongly recommend to all the' congregations within their bounds, not only as an expression of their grati- tude and symi>athy. but as a solemn dutv. at the earliest convenient season, and ill the way that to the Minister and Elders seems liest, to make contributions to the National Patriotic Fund: — and that Hew Ramsay, Esq., Montreal, be appoint- ed to receive from the respective concrregations their sin'eral contributions, and transmit them to "William Youna', Esquire. W.S.. l said Fund, hereinbefore and hereinafter referred to. That the sole business submitted at the meeting of the said Synod of the 10 Prftsbytt'iian C'hurrh of Canada, in connection with the Church of Scotland, at the diets thereof, held on the tenth and eleventh days of January, eighteen hiindred and fifty-tive, was the conBideration of giving force and effect to the clause permit- tinff the Governor of the then Province of Canada in Council to commute the claims of Ministers, IncumV/ents and Missionaries upon the Clergy Reserves Funds, with the consent of the bodies and parties st ,'orally interested, as set out in the minutes here- inbefore recited. That the said Synod, on its own behalf and on behalf of its members, deter- mined at its said meeting to take advantage of the said commutation clause, and appointed a committee, styled Commissioners, to give effect to the said determina- 10 tion, and the said Synod ordered said minutes to be printed, and instructed said C'ommittee to send a copy thereof to each minister entitled to commute. That the said Reverend J .'"i Cook, Doctor of Divinity, was appointed convener and Chairman of said Committee, and as such, was authorized to, and did. address a circular to all the then Ministers and Incumbents of the said Church entitled to benefits from the said Funds, among others to the Petitioner, which circular was in the following words : — " Quebec, 24th February, 18')'). " Revd. Sir, " I am instructed by the Commutation Committee'appointed at the last meet- " ing of Synod, to enclose to you two Powers of Attorney, approver by the " Government and by the Synod, which it is necessary you should sign and for- " ward to Hugh Allan, Esq., Montreal, without delay. — in order to our obtaining a "commutation of Clergy Reserve monev, "which will be advantageous to the " Church. All the Ministers present at the meeting of Synod in January, agreed " to commute, and the Ministers of the Church of England have unanimously " sigi'.ed similar powers to those now forwarded to you. "The fundamental conditions contained i.i the minutes of the Synod, held at "Montreal, on the 11th January, IS^f), which are alluded to in one of these " powers, and which by the terms of the said minutes, it shall not be competent*'*^ " for the Synod at any time to alter, imless with the consent of the Ministers " granting such power and authority," are first, "That the interest of the Fund " shall be devoted in the first instance, to the payment of salaries of £\12 lOs " each," to such Ministers, " and that the next claim on the Fund shall be that of " Ministers on the Roll of the Synod, and who have been put on the Synod's Roll "since the !Mh May, 185;};" and, second, "That all persons who have a claim to " such benefits, shall be Ministers of the Presbyterian Church of Canada, in con- ■nection with the Church of Scotland, and shall cease to have any claim, when " they cease to be l>linisters in connection with the said Church." " Of thest> conditions it is presumed you will approve, and I have the satisfaction 40 " to inform you, thiU on the terms proposed by the Government, and to which the " Commiatation Committee are prepared to agree, as soon as these powers are •' received from the Ministers of the C^hurch, it will be certainly possible to comply " with the first condition, in so far as respects Ministers settled before the 9th " May, 1853, and, preserving the capital, to secure to them, from the interesti " salaries of <£112. 10s. for life, or incumbencv. And it is, therefore, earnestly en- i i W: m m ?aid n " treatcul ihnt ihove mfty be no hositation or del.vy in signing ami forwardinir thoso ' powers. '• I am I'urtlier instrii<;ted to call your attt-ntiou to the follo\vin^' Resolution, •' pasHtMl unanimously, at tht' last, nu'etins^- nl' Synod : — '• That all niinistcis l)i', and ihoy aro luMoby enjoiiu'd and entreated, (as to a " nioas\irt', by which, under I'lovidence, not only their own private interests will " be secured, but i)ernianont endowment for the maintenance and extension of Reli- • oious ordinances in the Church.) to -hteen hundred and fifty-five. That on and since the ninth of May, eishteen hundred and fifty-three, the Peti- tioner was entitled to the benefits derivable from the proceeds of the said Clerjry "Reserves under the said Imperial and Provincial acts relating thereto, and on the ninth day of May, eighteen hiindred and fifty-three, Petitioner was in the receipt of a stipend and allowance therefrom amounting to upwards of one hundred pounds annually, and further at the date of the passing of the re.solutions of the said Synod in favour of the said commutation, to wit, on the eleventh day of January, eighteen hundred and fifty five, the annual value of Petitioner's stipend and allowance, 40 forming a life claim payable to him by and out of said sums, amounted to the sum of one hundred and fifty potxnds currency per annum, and the said Petitioner has never done anything to forfeit his right to particii>ate in the said Fund, or in the ]iroceeds, profits or revenues thereof That during the year eighteen hundred and fifty-five, and after passing of the said resolutions bv the said Svnod, the said Petitioner did commute the claims t T 1 il ( C .'I tl fc tc A Awe to liim h\ \\o saiil Fund, with tho Oovornnu'iit, by and thionifh the said Com- missioneiN, upoti the coiulitionK set out in said rt'solutiouH, and the said Petitioner did tht'iehy conKont to renounce his personal riuhts in the said ('lerj?y lleserves, and in thi- pnxeed.s thereof in favour of the said rresbyterian Church of Canada, in coniifclion with the Church of Scothmd, and did eonsent that the amount of the capital sum due and to accrue to him, should be joined with the auiount duo and lo accrue to other Ministers of the said Church, and that all sums thus obtained should be joined into on<' fund, which should l)e held in Trust by the said Commis- sioners, in (he said resolution named, till the meetin«? of tho Syiu)d next ensuing, by which all further regulations should be made, but the said renunciation of the Peti- 10 tionei's rights was nnide subject to the fundanuMital principle (which it was declared not to be competent for the said Synod at tuiy time to alter, unless with the consent of the Ministers grantiny- such power and authority) namely, that the interest of the said Fund to be so created, should be devoti'd, in tin- first instance, to the payment of one Imndrod and twelve po iids, ten shillings, to each member then on the Synod Koll aiul who was on the Synod Koll on ninth May, eighteen hundred and lifly-three, and that the next claim to be settled, if the said fund should admit, and as soon as it should admit of it, to the one hundred and twelve poimds, ten shillings, be that of the Ministers whose names at the time of th'3 j)assing of the said resolutions were on the said Synod Roll and which had been '20 put on the said Synod's l{oll since the ninth of May eighteen hundred and lifty- threc, up to the date of (he passing of the said -.esolu'iou ; and, also, upon the con- dition that it should be considered a fundamental principle that all persons who have a claim to such benelits should be ministers of the Presbyterian Church of Canada, in connection with the Church of Scotland, and that they should cease to have any claim on or to be entitled to any share of the said Commutation Fund whenever they should cease to be Ministers in connection with the said Church. That the said Petitioiu'r has always uiaiutained his connection with the said Presbyterian Church of Canada, in connection with the Church of Scotland, and has done nothing to forfeit his rights and privileges therein. 30 That the I'unds placed in (he hands of the said Commissioners, subject to the terms, conditions and fundamental princijjles of the said resolutions, lo be held for (he purpose, and subject to the restrictions herein mentioned, to wit, the funds resulting from the original Commutation claims of the Ministers upon the Clergy Reserves, exclusive of all other Contributions to it, amoviuted in eighteen hundred and fifty-five to the sum of One Hundred and Tw^enty-Seven Thousand Pounds, (£\2'7fiOO) which said sum constituted, and was, and is, a Triist Fund, which could not be diverted from (he purposes for which it was originally created, .md the said Commissioners and their legal successors held the same in (rust for the Presbyterian Church of Canada, in connection with the Church of Scotland. 40 That afterwards, an Act of the heretofore Parliament of Canada was passed (22 Vic, Cap. OG) to incorporate a Board for the management of the said Fund, and for such other funds as should be contributed, subscribed or paid in, from time to time, and (hat it was therein" declared, at the time of the passing of the said Act, that said funds were held in trust by certain Commissioners on behalf of the said Church, and for the benefit of the said Presbyterian Church of Canada, in connection with the Church of Scotland. I A > 81 ic of of 18 Thi\t at Ih.' tinip of sn.h Commutation tht^ i'und.s arisiiiQ' thfrcfroin, and which \v(>Vv) ronstitutt'd into one fund, amounted to the sum of One Hundred and Twenty-seven thousand Pounds, which it was declared, by a By-law passed under the provisions of the hist mentioned Act. should be kept separate and dis- tinct from any other funds which might come into thf possession of the Board of Management of the Temporalities' Fund of the Tresbyterian Church of Canada, in connection with the Chxirch of Scotland. That under the provisions of the said last mentioned Act, a body corporate and politic was created under the nanu» of the " Board for the Management of the '• Tempoi idities' Fund of th(^ Presbyterian Church of Canada, in connection with the 10 '• Chunh of Scotland." to wit, the Corporation, Ilespondents.'which said Board it -\\ as declared, amoni>' other things, should consist of twelv^ members, of whom live shi>uld be ministers and seven should be laymen, all being ministers or members in full communion with the said Church, and of whom seven shoidd beaquorum ; aiul that the said Board should thenceforth have. hold, possess and enjoy, in trust fin- the said Church (meaning the said Presbyterian Church of Canada, in connect- ion with the Church of Scotland) and for the purjwses in the said Act and in the preamble thcreoj iiK'ulioned, all moneys, debentures, l)onds, bank or other stoiks and securities which were then held by the Commissioners of the said (*hurch< in Trust for tlu- said Church, under the terms of the resolutions of the tenth and 20 eleventh of January, eighteen hundred and lifty-live, hereinbefore cited, and subject to the conditions in the said Act mentioned. That the said last nuMitioned Corporation continued to manage and ad- minister the Trust Fuiul ari'lng from the original commutation, and divers other funds contributed for the ])urposes nu>ntioned in the said last mentioned Act, until the hfteenth day of June, eighteen hundred and seventy-five, when the aggregate amoxuit of the funds, assets, ami money under the control of the said last meiiiion- ed Corporation, Iv'espondent, and by them held in trust for the Petitioner and for all others entitled to i)articipite in thi> revenues and interests accruing thereon, and for the benefit of said Church, amounted to the s\im of four hundred and sixty- 30 three thousand, three hundrtnl and sev^nity-one dollars and fifty-two cents, (4G.S.:ni.i')2) at j^ar value, according to statement dated lirst May, eighteen hundred and seventy-live, as set out in the Acts and Proceedings of the Synod of the said Church for ei, of the h«>retofore Province of Canada, is null and of no etfect. That I'ie subject matters of said Act of the Legislature of Quebec are not of a mere local or private nature within the Province ofQiiebec, but aflect the rights of persons residing beyond the Province of Quebec-, and not subject to its juris" diction. That the Petitioner is not subject to the legislation of the said Province of Quebec affecting his interest^ in the said funds, and the said Legislature of said Province of Quebec has exceeded its competency and jurisdiction in passing 10 said Act. That the interests of the Petitioner in the moneys arisina- from the «uid com- mutations and in the Temporalities' Fund, as constitixted by the Act (22 Vit\, Chap, 66^ of the late Province of Canada, are not of a mere local or private nature in the Province of Quebec, bvit are a matter of general interest. That the objects of th(> Corporation, Respondents, under the Act 22 Vic, Cap. tJtJ, of the heretofore Province of Canada, wore not, and are not, of a provincial nature, but extend to persons residing in the Provinces of Ontario and Quebec;. That the said Act of the Legislature of the Province of Quebec is illegal and uncons,titi\tional. and beyond the competen.y of the said Legislature. 20 That the said Act of the Legislature of the Province of Quebec (38 Vic, Cap. 4) is further illegal and unconstitutional, in permitting and providing for the payment of an annual stipend to ministers who have ceased to bo members of, or to have any connection with the Presbyterian Church of Canada, in connection with the Church of Scotland, and in providini-' that the Temporalities' Board, to wit. the Corpondion, Kcteing a minister or member of the said United Church ; or in the " event of thire being more than one vacancy, then one person for each vacancy and " the remanent members of the said Board, shall thereupon from among the persons " so nominated as aforesaid, elect the person or number of persons necessary to fill such " vacancy or vacancies, selecting the person or persons who may be nominated by the " largest number of beneficiaries to nominate as aforesaid, the remanent members of " the Board shall fill up the vacancy, or vacancies, from among the Ministers, or " members of the said United Church," thus depriving a Minister who may have retaint^d his connection with the Presbyterian Church of Canada, in connection 40 with the Church of Scotlatid. of the right to administer the funds under the con- trol of the said Corporation, Respondents, and disfranchising and disqualifying all members of the said last mentioned Church from administering the said Fund which, of right, alone belongs to them ; and further in setting aside the legal method lor tilling vacancies in the Board, Respondents, as pnjscribed by the said Act 22, Victoria, Chapter GO, and the By-Laws made thereunder. That the said Statute of the late Province of Canada, (22 Vic. : Cap. 60) is legally and constitutionally in il a (1 C 1( V o- ri ol ol fr se th e, se 16 full forco and ofTc^d, and tho Rospondonts are subject 1o Hi. provisions, and tho By Laws made thRveunder by the said Presbytorian Church of Canada, in connec- tion with the Church of Scotland, previous to the fourteenth day of June, eigh- teen hundred and seventy-five, and by those members. Ministers, and Elders of tho said last mentioned Church, who remained in connection therewith, and who have not seceded therefrom on and since the fifteenth day of June, eighteen hundred and seventy-five are now in full force. That the said Respondents have no power to apply the capital sum of one hun- dred and twenty-seven thousand pounds, or the sum administered by them, to the payment of stipends or to any other purpose whatever, but thesaid sum and such 10 other sums as should be contributed to it were intended to remain intact as a per- manent endowment for the said Presbyterian Church of Canada, in connection with the Church of Scotland : as fully appears from the Minutes and the Synod letter of the Reverend John Cook hereinbefore cited, under the express provisions of both which the Petitioner surrendered his interests in the Clergy Reserves and their proceeds to the said Church. That the said Respondents had power only to use and apply the revcmues, interests and accruals of the said Endowment Fund, for the jmrposes mentioned in the said Act incorporatinsi' the Hoard, Respondents. That the Corporation, Respondents, since the fifteenth day of June, eighteen 20 hundred and seventy-five, \^^ to the month of December, eighteen hundred and seventy-seven, have drawn upon the capital of the said Fund to the extent of the sum of forty thousand five hundred dollars and twenty-five cents, (!$40,500.25), il- legally and in contravention of the said Act (22 Victoria, Chapter 66) of the here- tofore Province of Canada. That the Reverend John Cook, Doctor of Divinity, of Quebec, the Reverend James C. Muir, Doctor of Divinity, of North Greoraetown, in the Province of Quebec, and the Rev. George Bell, Doctor of Laws, (LL.D.K of Walkerton, in the Province of Ontario, were <>ominutors, aiul did commute their claims, upon the said Clergy Reserves, and upon the funds arising therefrom, concurrently with the Petitioner, 80 and under and su})ject to the terms of the fundamental principles hereinbefore ( ited, passed by the said Synod on the eleventh day of January, eighteen hundred and fifty-five, but on and since the said fifteenth day of June, eighteen hundred and seventy-five, the said Reverends John Cook, James C. Muir, and George Bell, did join with another religious association called the Presbyterian Church in Canada, composed of persons who previous to the said fifteenth day of June, be. longed to four separate and distinct religioits organizations, and extending over various provinces of the Dominion, under four separate and distinct ecclesiastical governments, entirely unconnected with each other, to wit, the Canada Presbyte. rian Church, the Presbyterian Church of Canada, in connection with the Church 40 of Scotland, the Church of the Maritime Provinces in connection with the Church of Scotland, and the Presbyterian Church of the Lower Provinces, several members from each of which said last mentioned religious organizations united them- selves together in a mnv and distinct religiotis organization and association called the Presbyterian Church in Canada : — that the said Reverends John Cook, James C. Muir and George Bell, on said fifteenth day of .Tune, eighteen hundred and sevontv-five. ceased to be Ministers thenceforward of the Pre.sbvterian Church of Itj CJanadn, in connootion with tli.> Church of Scotland ; avA Potitionor i\ve Bell, in their quality as members of the Presbyterian. Church of Canada, in connection with the Church of Scotland ; thoush since the said jiftcenth day of June, eighteen hun- dred and s<'venty-Hve. the said h'everends John Cook, James C. Muir, and Georsf Bell, have been and are ministers of the said new organization, styled thePresi. terian Church in Canada. That Petitioner has reason to believe and verily believes, that the Corporation. 20 Respondents, will pay to the said Reverends John Cook. James C. Muir, and {Jeoige Bell, the sura ol two hundred and twenty-five dollars each, on or before the hrst day of July next, as Commutation Allowances from the said Fund, to each of the said last mentioned Ministers, in their quality as Ministers of the Presby- teriati Church of Canada, in connection with the Church of Scotland, for the half year ending- thirtii-th June, eighteen hundred and seventy-eight. That preceding the fifteenth day of June, eighteen hundred and seventy-five, the Reverend John Fairlie, minister of L'Orignal, Province of Ontario, the Reve- rend David AV. Morison. Bachelor of Arts. Minister of Ormstown, Province of (Quebec, the Reverend Charles A. Tanner, of Richmond, Province of Quebec. 30 amongst others, not being of the number of original commutors, were not entitled to receive any allowan<'e or stipend or reveniie or emolument of any nature or kind from said Fund administered by said Respondents, iinder the terms of said statute 22 Vic, Ca]). (!(I. unless the interest, revenues and accruals on said Fund, and contributions from other sources thereto, were sufficient to allow the payment of certain allowances or emoluments therefrom after the dedi\ction of the sums payabli> to the original commutors. That the said Reverend John Fairlie, Reverend David W. Morison, and Reverend Charles A. Tanner, of Richmond, Proviiue of Quebec, have received from .said Corporation, Respondents, since the fifteenth day of June, eighteen ^'^ hundred and .seventy-five, for, and by reason of their connection with and having been Ministers of the Presbyterian Chixrch of Canada, in connection with the Church of Scotland, since the said fifteenth day of June, eighteen hundred and seventy-five, the sum of Four Hundred Dollars each, to which said last mentioned Ministers were not entitled, both by reason of having ceased to be entitled to the benefits from the Fund administered by said Corporation, Respondents, under the terms of the resolution of the eleventh of Januarv, eicrhteen hundred and fiftv 17 five, the siiid Rfverciids John Fnirlit.', David W. Morison iind Churh's A. Tiiiiiiff haviiip roasted to be membors of tlu' Pri'sbytfrian Church ol Canada, in connec- ti .» with the Church ol Scotland, and having joined the said Presbyterian (^hurch in Canada as aforesaid, and b»'cause the reveniaes and interests aceruing on said Fund administered by aid Corporation, Kespondents, were not sufficient to pay tho said Reverends John Fairlie, David W. Morison, and Charles A. Tanner, any allow- ance or eraolument whatever, aft«'r the payment and settlement of all legal claims upon the revenues of said iund, and said Reverends John Fairlie, David W. Mori- son, and Charles A. Tanner, were not entitled, r»\spective]y, to said sums of Four Hundred Dollars each, either from the revenues and interest or from the capital of 10 said Fund so administered, as aforesaid, by the Corporation, Respondents. That by the terms of the said Statute (22 Vic., Cap. ()6), incorporating the Cori)oration, Respondents, it is provided that at the lirst meeting of the Synod of the said Church there should be elected, by the said Synod, seven mernbr^s of the said Board, Respondents, of whom four should be laymen and three ministers, all members of the Presl)yterian Church of Canada, in connection with the Church of Scotland, in place of two laymen and one minister, members of the said Board, who should then retire, and that thereafter two ministers and two laymen should retire from th«' said Board annually, in rotation, on the third day of the annual meeting of the said Synod, and that the place of the retiring members of the said Board, 20 Respondents, should be supplied by two ministers and two laymen, being minis- ters or members in h\\\ connnunioii ol" the said Church, then to be elected by the said Synod. That on the fourteenth day of June, eighteen hundred and seventy-five, the following persons composed the duly-elected, eligible members of the said Board, Respondents, «'ntitled to administer the funds and property entrusted to them under the provisions of the said Act, as appears by the Acts and proceedings of the said Synod for the year eighteen hundred and seventy-five : — Reverend John H. Mackeri\s, Master of Arts, Professor in Queen's College. Kingston, Province of Ontario, the said Reverend Daniel M. Gordon, Reverend 30 John Cook, D.D., Reverend John Jenkins. D.D.. Reverend Gravin Lang, James Miehie, Esquire, Merchant, Toronto, Province of (hitario ; Alexander Mitchell, Esquire, Merchant, Montreal. Province of Quebec ; William Darling, Esquire, Merchant, Montreal, Province of Qxiebec ; the said Sir Hugh Allan, John L. Morris, Esquire, Robert Dennistoun, Esquire, and William Walker, Esquire. That since the date of the said enactment, incorporating the Corporation, Respondents, (22 Yu-., Cap. OG), four members of the said Board, Respondents, should have retired therefrom at each annual meeting of the said Synod. That in the month of June, eighteen hundred and seventy-six, the following members of the said Board, Respondents, by law ceased to be members of said 40 Board, and should haA'e retired therefrom, to wit, the said Reverend John Jenkins, Reverend Gavin Lang, William Walker, Esquire, and Robert Dennistoun, Esquire. That in the mouth of June, eighteen hundred and seventy-seven, the follow- ing members of the said Board by-law ceased to be members of said Board, Res- tl to li] sa R( 8a: po ou COl Ca 18 ])oiul<'uts. iind Hhould havo rotircd therofrom, to wit : Tho h»u\ Rowrond John Cook. Rt'v.it'iul Danifl M. Gordon. John I.. Morris. Esquiro, and Sir Hugh Allan. That (hf romainincf nu'inbors of tho Board, to wit: tho said Roverond John H. Mackorras, Jamos Michio, EKquiro, Aloxander MitchoU. I'^Htiuire. and William Darlinu. lOsciuiro, havo Nocodod from tho said I'roHbytorian Church of Canada, in coniioi tion with tho Church of Scotland, and havo joinod tho said Presbyterian Church in Canada, and havo coasod to bo inembors of tho Prosbytorian Chu.ch of Canada, in connection with the Chunh of Scotland, and havo ipso facto vacated their seats as monibers of tho Board, Rospondents, and tho said Rovorond John Jenkins, Rovorond (lavin Lanff, William Walkor. Escjuiro, Robert Dennistoun, 10 Esquire, Rovorond John Cook, Rovorond Daniel M. (lordon, John L. Morris, Esquire, and Sir Huirh Allan, heretofore members of the said Hoard, were not legally re-elected and appointed members of the said Board, Rospondents, and they and tho n-maining members of the said Board ille<«!illy protend to exercise, and do in I'aot oxoniso and ])orform all the fuix-tious a|)pertaining to legally oloctod and appointed members of tho said Board. That the said Roven-nd John Jenkins, Reverend Gavin Lang, William Walker, Es(iuire, Robert Dennistoun, Esquire, Reverend John Cook, Reverend Daniel M. Crordon, John L. Moiris, Enquire, and Sir Hugh Allan, Reverend Jo^^" H. Mackerras, James Michio, Esquire. Alexander Mitchell, Esquire, and William-^" Darling, Es(|uire. are not entitled to administer the said Fund, or to be or remain as members of tho Corporation, Respondents, and should bt; removed from the said Board, and the said Respondents are not entitled further to administer the funds under tho control of the Corporation, ilespondenls, or to make any infringe- ment ui)on tho capital thereof, or to disburse the revenues thereof in any manner whatever, the .snid Board hoinji' illegally constituted. That the said Corporation, Respondents, have infringed upon tho capital of the said Fund under their management and control in the manner horoinbefore indicated, and have illegally paid money, proceeds of the capital and revenues of the said Fund, in tho manner heroinbofort! indicated, without any legal power or 80 authority so to do, and have illegally continued and permitted the said Reverend John Jenkins, Reverend Gavin Lang, William Walker, Esquire, Robert Dennis- toun, Esquire, Reverend John Cook. Reverend Daniel M. Gordon, Sir Hugh Allan, and John I^. Morris, Esquire, to act as memb(>rs of the said Board, Respon- dents, v^ithout having fulfilled the formalities prescribed by law and the Act of Incorporation of the Corporation, Respondents, for their election as members of the said Board, and all the members now comprising the Board of the Corporation Rospondents, are illegally exercising the power of legally elected members, and the said Corporation, Respondents, composed as aforesaid, are now acting beyond their power in continuing the exercise of the powers conferred on the said Board with- 40 out having a quorum of the said Board duly elected as members of the said Board, and by permitting th(! said parties, not being members thereof, to take part in the deliberations and proceedings thereof, and by administering the funds under their control illegally and contrary to the terms of the Act of the heretofore Province of Canada, incorporating the Board, to wit : 22 Vic, cap. 6fi. r c tl I) U ii) U' m \v th I !).:■ liv jco Vi |th> lilt I be !:1!! Ml iKo l)e |A11 'thi I he I the jpoi I Ad mo ele( Ac'l hm not holi the saic Ino Boa Rev 19 rhat tho Coiponition, K'csiioiulrnts, luiv.' hiihcrto inailc thi- hiilf-ycnrly pny- luoiitH ol MiuisttMs' allowances Irom said Fiiiul ahout one month belore the day on which sut h payments to Ministers would become due, to those entitled to re- ceive same, and the Corporation, liespondents, as Potitioner believes, will issue rhecques lor the pretended ullowames herein about the beirinninj^ of June next. That the said I'etitioner has a personal interest in the Funds administered by the Respondents and more esjjecially in tliat portion ot the Funds so administered by them arising' irom iJie Commutation oi' claims of Ministers upon t! • Clergy Reserves and the proceeds thereol" aud the said Petitioner has a right to allow- ances theretrom Ibr life, i)rovided he maintains his connection with the I'resby- 1 ^ terian Cliurcli of Canada, in coiineciion with the Church of Scotland, and does not cease to be a Minister in connection therewith, which said allowances and I which said intt^-est in the said Funds are endangered by the infringement upon the capital of the said ImuuI, made by the Hoard Respondents and by the illegal payments hereinl)ei'ore indicated or made or t'lat may hereafter be made by the l)oard Respondents, out of the ciipifal of the said Fuiul or llie interest or revenues [accruing thereon. That all the payments heretofore made l)y b'espondents to the persons hereiu- l)efore mentioned, since the lifteenth day of June, eighteen hundred and seventy. [five, or contemplated to be made out of the said F'und, as hereinbefore stated, are 20 [contrary to the i)rovisions of the Statute of the heretofore rrovinralp, or act as memhors of lilt' said Corporation or lioard, and thonnipon further prays that the said Corpora- lion he by such judamenl restrained i'roni actincr and proceedi' T in respect of the duties imposed upon theni l)y Ihc said A«l of liieorponition ol i le -Jii Vicchaj). (j(!, mid Irons adniinislerinii-. nsiiii>', disi>ensiii<>-, or disposing ol ihe funds and pro]>erty of Iho said Corporatioii ; and he ordered and enjoined not to act in respect of the said duties and powers, and in respect of the said fnnds and property, until an ade*|unle and sullicient number ot members thereof shall have been du'y elected in the mnnner and with Ihe Ihrmalilies provided by law and by ihe said last men-1^ tioned Act ol' Incorporation. And further, that the RespomhMils, Rev. John Jenkins, Rev. C.avin Lanij:. AVilliam Walker, I'^squire, Robert Pej'nistonn, Kscpiire. Rev. John Cook, Reverend Daniel M. (lordoii. Sir IIu<>h Allan, and John L. Morris, Ks'juire, be restrained irom actinn' as menibers of the said Hoard, mid be enjoined not to sit or act as, or ]ierlorm any of the Junctions of mt aibers .)f the said Board, unless and until they shall be didy elected members thereof, in the manner, and -with the formalities provided by the said Act of Incorporation of th(> said Roard, 2'2 Vic. chap. (It!. And tht> I'etitioiuM- lurther prays, that it be ordered, that Ihe said Itespondenls, and each and all of them do forthwith suspend any and all a«'t8 and proceedings-" in their several cai)acities resp('ctively : in respect of the administration of the said lunds and property, and in n^spect of all matters in dispute in this cftust-. That it be adjudiied and declared that the Fund administered by the Cor- ])oration. Respondents, anKumtinii- to the sum of four hundred and sixty-three thousand, three huiulred and seventy-one dollars and fifty-two rents, ($4()8, 371. 52) is a Fund held in Trust by them for the benelit of the I'resbyterian Chunh of Canada, in connection w ith the Church of Scotland, and for the benefit of the Ministers and Missionaries who retain thi>ir connection therewith and who have not ceased to be Ministers thereof, and foi no other purpose whatever. 'Phat the said Keverend John Cook, Reverend James C. Muir and Reverend'^" George Rell, be declared to have ceased to be M(>mbers of the Presbyterian Church of Canada, in cay to them the said Reverend John Cook, Reverend James C. Muir, Reverend George Bell. Reverend John Fairlie. Reverend David W. Mori.soii, R(>verend Charles A. Tanner, or to any other person whomso- ever, any sum of money whatever out of the capital or revenues or interest accrued and to accrue on said Fund, under pain of all legal penalties, until such further order shall be made upon the said petition, as to this Honourable Court, or any 21 Judge thereof shall seem meet and expedient, the said Petitioner reserving- the rio-ht to take surh other and further conclusions in the matter, as he may be advised and permitted, the whole with costs, against such of said Defendants as mny contest the prt-isent action, but without costs against such of the Defendants as may declare that they abid' the order of the Court, of which costs the under- signed Attorneys pray distraction. Montreal, 30th Apul, 1878. MACMASTER, HALL & GREENSHIELDS, Attorneys for Petitioner. HON. J. J. C. ABliOTT, Q. C, Counsel. I, the undersigned, one of the .Tustices of the Superior Court for Lower Canada, sitting in the District of Montreal, having read the foregoing Petition, and the affidavits and documentary evidence produced in sui>port of the same, do order that a AV rit of Iiijunition do issue according to the prayer of the said Petition, to summon the llcspoiidcnts to bi> and a}ipear before any one of the Honourable Justices of the said kSupcriur Court at Montreal aforesaid, on the 4th day of July next, to answer the premises, and pending such further order and judgment as may be rendered in this cause, I do hereby order and enjoin the said Corporation, Respondents, and the said Respondents, the Rev. John Jenkins, Rev. Gravin Lang, William Walker, Esquire, Robert DennLstoun, Esquire, Rev. John Cook, Rev. Daniel M. Grordon, Sir Hugh Allan, and John L. Morris, Esquire, and each of them forthwith, to suspend any and all acts and proceedings in their several capacities, rc.^^pectively, in respect of the payment of all sums Ci money, and of the admin- istration of the funds undtn- the control of the said Corporation, Respondents, and in '.espcct of all other matters in dispute in this cause, under pain of all pen- alties provided by law. Montreal, 14 May, 1878. (Signed,) H. F. RAINVILLE, J. S. C. w. •"- 1 i]lll MONTREAL. The Reverend Robet Dobie, vs. Board fob the Management ok the Tempora- lities' Fund of the Presbyterian Church OF Canada, in connection with the Church ok Scotland, et al., ilcsponbents. PETITION. M ACM ASTER, HALL & GIIEEXSHIELDS, Attorneys for Petitioner. HON. J. J. C. ABBOTT, Q. C, CounuL CANADA, ) PROVINCE OF QUEBEC, [• District of Montreal. ) »♦ « Thk Reverend Robert Dobie, a?ctiiio»»ct^ : VS. Board for the Management of the Temporalities' Fund of the Presbyterian Church of Canada, in connection with the Church o^' Scotland, e^ a/., To the Honourable the Superior Court for Lower Canada, District of Montreal, or to any one of the Honourable Justices of the said Court sitting, in and for the District of Montreal. The humble Petition of the Reverend Robert Dobie, of Milton, in the County of Halton, in the Province of Ontario, and Dominion of Canada, Minister ; person- ally, and in his qualities hereinafter mentior ed, Petitioner, complains of the "Board for the Management of the Temporalities' Fund of the Presbyterian Church of Canada, in connection with the Church of Scotland," a body politic and corporate, duly incorporated, and having an office and its principal place of business in the City of Montreal, and ot the Reverend Daniel M. G-ordon, Bachelor of Divinity, 10 Minister of St. Andrew's Church of Ottawa, Province of Ontario ; Reverend John Cook, Doctor of Divinity, Minister of St. Andrew's Church, of Quebec, Province of Quebec ; Reverend John Jenkins, Doctor of Divinity, Minister of St. Paul's Church, of Montreal, Province of Quebec ; Reverend (jravin Lang, Minister of St. Andrew's Church, of Montreal, Province of Quebec; Sir Hugh Allan, of Ravenscraig, Mon- treal, Province of Quebec ; John L. Morris, Esquire, Advocate, of Montreal, Province of Quebec ; Robert Dennistouu, Esquire, County Judge, of Peterborough, Province of Ontario ; and William Walker, Esquire,Merchant, of Quebec, Province of Quebec ; the Reverend John H. Mackerras.of Kingston, in the Province of Ontario ; William Darling, Esquire, and Alexander Mitchell, both Merchants of the City of Montreal, IJO aforesaid. Respondents ; and avers : That Petitioner is a Minister of the Presbyterian Church of Canada in connec- tion with the Church of Scotland, and a member of the Synod thereof and Minister of the Church and Congregation designated "St. Andrew's Church" in Milton, afore- said, in connection with and lender the ecclesiastical jurisdiction of the Presbyterian Church of Canada, in connection with the Church of Scotland. That said Petitioner is a Menaber and Minister of the Church of Scotland, and a Protestant Clergyman. That the said Respondents, the Board for the Management of the Temporali- ties' Fund of the Presbyterian Church of Canada, in connection with the Church 30 of Scotland, is a body politic and corporate, duly incorporated under a Statute of X y ( the horetoforo Province of Cnnndn, 22; Yic Cap. Gfi; havini? an ofTice and its principftl place of business in the city of Montreal, in tlie District of Montreal, in the Trovini e of Quebfc That, in the year eighteen hundred and lifty, Petitioner was duly licensed as a probationer and minister of the Church of Scotland by Law established in that part of the United Kiniidom ot Great Britain and Ireland, called Scotland, and Petitioner came to the heretofore Province of Lower Canada, now the Province of Quebec, as an ordained missionary of the said Church of Scotland in the year eighteen hundred and hfty-two, and thereupon commenced and continued to labour and i)reach and teach as a missionary and minister of said last mentioned 10 Church .ontinuously in the said City of Montreal, until 'he year eighteen hundred and fifty-three. That subsequently, on or about the seventh day of October, eighteen hundred and fil'ty-three, Petitioner, as a minister and missionary of the said Church of Siot- land, removed from the said City of Montreal, and was admitted to and became a member of the Presbytery of Glengarry, in the now Province of Ontario, which said Presbytery was then and still is under the ecclesiastical jurisdiction of the Presbyterian Church of Canada, i)i connection with the Church of Scotland, and ot the Synod of the said Presbyterian Church of Canada, in connection with the Church of Siotland, and the Petitioner thereupon became a member and a ministeOQ of the said Presbyterian Church of Caiuxda, in connection with the Church of Scotr land, and as such was duly appointed as minister and incumbent to the charge and pastorate of the Church and Congregation in connection thennvith, designated the Church and congregation of Osnabruck, situated in the Township of Osnabruck, in the County of Stormout, in the now Province of Ontario, then the section of the Province of Canada, known and designated as Upper Canada, and also as Canada West. That since said last mentioned date, Petitioner has continued to be and to act as a minister of the said Presbyterian Church of Canada, in connection with the ^q Chunh of Scotland, within the heretofore Province of Canada and within the Dominion of Canada, and has been at all times, and is now, as such, in good stand- ing in the isaid Church and in the Synod thereof. That the Petitioner, as a member and minister of the Church of Scotland, and as a member and minister of the Presbyterian Church of Canada, in connection with the Church of Scotland, and as a member of the Synod of the said last men- tioned Church, and as a Protestant clergyman, since the date of the Petitioner's in- duction into the ministry as aforesaid, continuously unto the present time, became and was entitled to a share of and to a right of ownership in and to participate in- the proceeds of certain lands of the Crown within the Provinces of Upper and 4Q Lower Canada, respectively, and in the rents, profits and emoluments derivable therefrom, as in the Acts and Enactments relating thereto declared. That by Acts of the Imperial Parliament of G-reat Britain jf the Imperial Parliament of the United Kingdom of G-reat Britain and Ireland, the Sovereigns of Great Britain and of the United Kingdom of Great Britain and Ireland, were em- powered to authorize the Governor, or Lieutenant Governor, of each of the then Provinces of Upper and Lower Canada, respectively, to make from out of the Lands of the Crown within said Provinces respectively, such allotment and appropriation of Lands as therein mentioned, for the support and maintenance of the Protestant dfiKy within thf saiil Piovinci's, and to apply thn n-nls, profits and emoluments whirh mijiht at any time aris*' I'rom sucli LnntlH. so allotted and ai)proprintod,8ololy lor thf inaint.'nancc and 8upi)ort oi" u rrotestant (It'rijry within the I'rovinco in which tht> sam«> niipfht he situated and to no other purpose whatever. That subsequently thereto, in pursuance oi" Ihe ^aid Acts, tertain Lands of the Crown were I'roni time to tinu^ reserved lor the purposes mentioned therein, which said lands were known, and were and are commonly desitrnated by the name of Ihe "Clerify Keserves." That the Governor, liicutenant-Governor, and Administrator of the heretofore Provinces of Upi)er and Lower Canada, respectively, were empowered with the 1" consent of the Executive Coiuicil of such Provinces, respectively, and in pursuance of His Majesty's instructions, to sell and convey a part of the said " Cleriry Re- serves" in each of the said Provinces, and to invest the proceeds of such sales in the Public l"'unds ol' the said United Kingdom, and to appropriate the divideiuls and interests of the moneys so invested for the support and main- tenance of a Protestant clercry within the said Provinces, solely and to no other purpose whatever. That by another Imperial Act, the sale of the entire Clergy Reserves in the Province of Ca'iada and the investment of the proceeds of such sale, and the distribution of the interests and dividends of such investment, subject to certain 20 conditions, were authorized for the purjioses hereinbefore mentioned. That by another Lnperial Act the Legislature of the hen^tofore Province of Canada was authorised to dispose of said Clergy Keserves and to make such invest- ment of the proceeds ther».'of as to the said Legislature might seem meet, subject to the proviso, that it should not be lawful for the said Legislature of the Province of Canada, by any Act or Aits thereof as aforesaid, to annul, suspend or reduce any of the i'unual Stipends which had, previously thereto, been already assigned and given to the clergy of the Churches of England and Scotland, or to any other religious bodies or denominations of Christians in Canada (to which the faith of the Crown was pledu'cd) during the lives or incumbencies of the parties then 30 receiving the same, or to api)ropriale or apply to any other purpose, any part of the said proceeds, investments, interests, dividends, rents and piolits that might be required for the payment of the stipends and allowances due or accruing to the Ministers and ^li.ssioiuiries of the .said churches of lilngland and Scotland during their lives or incumbencies. That Ihe Imperial Acts, to wit, the Acts of the Parliament of Great Britain and of the United Kingdom of (Jrcat Ihitain and Ireland hereinbefore referred to. the wh >le of which are herein invoked, are specifically referred to in the Act passed by the heretolore Province of Canada, in the eighteenth year of the reign of Her Majesty Queen Victoria, entitled, 18 Victoria, Chapter 2. 40 That under and by virtue of the said la.st mentioned Act, it was enacted and declared that the moneys arising from the sale and disposal of the said Clergy Keserves in the said Province of Upper Canada should continue to form a separate fund, which should be called the " Upper Canada Municipalities' I^und," and that the monej\s arising from the sale and disposal of the Clergy Reserves in the said Province of Lower Canada should continue to form a separate fund, which should be called the ' Lower Canada Municipalities' Fund," and that after deducting the ^ % »>•• • m'lossnry pxpeiiscs uttoinlijiy Iho snlos oi'tho suid Clorgy lloservef*. ami maiiiiyiuj;^ th« same and tho fi'ncios ol' (he i)iirties. (to wit, the Ministers and Missionaries of the said churches and religious denominations reieiving the same at tho time of the pass- ing of the said Act, to wit, the Imperial Act 16 Vict.) be a first charge on the Municipalities' Fund for that section of the I'rovince, and .should be paid out of the same in preference to all other ch.'irges or expenses whatever. That by the Act of the late Province of (^anada (18 Vic: Cap. 2) it was enact- ed that the Governor of the said Province of Canada might, whenever he might deem it expedient, with the consent of the parties and bodies severally interested, 20 commute with the said parties such anniial stipends or allowances for the value thereof, to be calculated at the rate of six ]>er centum per annum U])on the probable life of each individual, and that uch commutation amount should be paid accordingly out of that iMunicipalities l<'und, upon which such stipend or allowance was made chargeable by the said last mentioned Act. That under and bv virtue of the said last mentioned Act, each of the Ministers and ^lissionaries of tL' Presbyterian Church of Canada in connection with the Church of Scotland, then receiving benefits within the said Province of Canada from thi' said Clergy Ileserves, or from the proceeds thereof, or from the Municipalities' Funds within the respective sections of the said Province of Canada- 30 was entitled to receive a sum of money as com)uutation for the value of the an- nual stipend or allowance payable to him therefrom, and for the interest which he had individually, and as a member of the Presbyterian Church of Canada, in connection with the Church of Scotland, in the said Clergy Reserves and in the said Municipalities' Fund, arising therefrom. That the Synod of the Presbyterian Church of Canada, in lonnection with the Church of Scotland, was duly summoned for the purpose of taking such steps as might be necessary to enable the said Synod and the members thereof to take advantage of the commutation clauses in the said Act of the Legislature of Canada, 18 Vict. Cap. 2, and the said Synod duly met and determined and decerned as set 49 out in the minutes hereinafter cited, in the City of Montreal, on the tenth and eleventh days of January, eighteen hundred and fifty-five. The following is a copy of the Proceedings of said Synod, extracted from its official records at pages three to eight of the Proceedings of Synod for eighteen hundred and fiftv-five. M 11 I ]\ J t( CI It th lai ibi CO thi m 5 ACTS ANIJ PKOCEKDINaS OF THE tSynod of th»> ProHbyteiiaii Church ot' Canada, in connection with the Church ol' Scotland, begun at Montreal the tenth day ol' Janiiary, and concluded the eleventh day ofJanuary, eighteen hundred and fifty-live years. SESSION XXVI. Die! I. At Montrc'd, and within St. Andrew's Church (here ; Wednesday, the tenth day ol' January, one thousand eight 10 hundred and lil'ty-live years. The which day, alter sermon by the Reverend Dr. Mathieson, from Psalm XLVlli. 12. 113 : "Walk about Zion and go luund about h r, tell the towers thereof: " mark ye well her bulwarks, consider her palaces, that ye may tell it tothegene- ■" ration following," the Synod of the Presbyterian Church of Canada, in connection with the Church of Scotland, met, pro re nula, and was constitiited with prayer by the Moderator, the KeA'erend James AVilliamson, A. M. Sederunt : Mr. James Williamson, Moderalor ; Mr. John McMurchy, Mr. John Barclay, Dr. Alexander Mathieson, Mr. James Anderson, Mr. James C. Muir, Dr. John Cook, Mr. William Simpson, Mr. Alexander Wallace, Dr. Robert McGill, Mr. James T. Paul, Mr. Thomas 20 llaig, Mr. Archibald II. Milligan, Mr. John McDonald, Mr. John McKenzie, Mr. Hugh Urquhart, Mr. John McLaurin, Mr. Thomas McPherson, Mr. Eneas McLean, Mr. Donald Munro, Mr. Thomas Scott, Mr. Andrew Bell, Mr. Robert Dobie and Mr. John White, Ministers; together with Mr. Alexander Morris, Mr. John Thompson, Mr. Thomas A. Gibson, and tne Hon. Thomas McKay, Elders. The Moderator laid Ijefoie the Synod a Reciui.sition, which had been addressed to him, calling on him to summon a meeting of the Synod ; also a copy of his cir- cular calling the present meeting. The same were read, as follows : — .■•s!:l 1/ m QuEiiEC, nth Dec, 1S54. Reverend and Dear Sir, 30 1 beg to intimate to you that it is the opinion of the ( ommittee of Synod, ap- pointed to watch the progress of Legislation in respect of the Clergy Reserves, that the Bill introdmed by Government, having now passed both Houses of the Legis- lature, it is desirable that a meeting of Synod should be called as early as possible lor the purpose of taking such steps as may be necessary to take advantage of the commutation clause in said Bill, and in name of the Committee I beg very res- pectfully to request that you will call such meeting at the time and place you think most convenient. 1 am, R(>verend and Dear Sir, Your faithful servant, -10 JOHN COOK. I a. 6 Wo, the iindersigned, hereby concur in the uecossity of calling a special meet- ing of ;^ynod at the earliest period the forms of the Church will admit. ALEX. MATHIESON, ROBEKT McGILL. The Keverend. The Moderator of the Synod of the Presl)yterian Church of Canada, in connection with the Church of Scotland. KixciSTON, 20th December, 1854. Keverend and Dear Sir, — 10 In compliance with a request addressed to me by the Convener and other members of the Committee appointed to watch over the progress of legislation in respect io the Clergy Reserves, to call a special meeting of Synod as early as possi- ble for the purpose of taking such steps as may be necessary to take advantage of the Commutation clause in the Act which has lately been passed by the Provin- cial rarlianient, I have now to intimate to you that a Special Meeting of Synod will be held in St. Andrew's Church, Montreal, on 10th January, 1855, being the second AVednesday of the month, at half-past six p m. 1 am. Keverend and Dear Sir, Yours faithfully, 20 JAMES WILLIAMSON, Moderator. P.S.— It has been thoi;ght by several of my brethren, with whom I have con- ferred on the subject, and I concur in the opinion, that in the circumstances of the case. Montreal is, on the whole, the most suitable place for the meeting of Synod on this occasion. The Synod unanimously agreed to ap])rove the Moderator's conduct in calling this meeting. The Synod then called for tht» report of the Committee appointed to watch over the interests of the Chinch in regard to the Clergy Reserves, which was given in and read by Dr. Cook, the Convener, stating that the Bill for the Secular- ^^ ization of the Clergy Reserves, which had been introduced into Parliament by the tiovcrnnient, had l)een carried in both Houses, and assented to by the Governor- (ieneral : — that it contained a clause seciiring to all ministers settled previous to the 9th INIay. 1853, the date of the passage of the Imperial Act, payment of their salaries from the Clergy Reserve Fund during thi'ir lives or incumbencies, and at the same time authorizing the Ciovernment to commute the claims of incumbents, with the consent of the parties and bodies severally interested, and that the Com- mittee, for reasons which they stated, had not considered it expedient to interfere in any way with the passing of the said Bill, but, feeling assured from many considerations that it would be for the benefit of the Church to take advantage of40 the Commutation clause of the Act, the Committee had requested the Moderator to call a pro re titiln meeting of Synod to take the matter into consideration, and make the necessary arrangements ; and the Committee further, and at great length, recommended that the Synod should agree to commutation. 1 of the conduct of the Committee, and after some discus- syi ippn sion ai»Ti>ed to dt>fer the further consideration of the report until to-morrow, and li hi instnvled tho aforoNftid Committer to draft resolutions to be then laid before the vSynod for their consideration as to their action in tht- matter. J. ;e Synod agreed to spend a portion of time in the morning in devotional exercises. The Synod then adjourned, to meet again at half-past eleven o'clock to-mor- row forenoon, and was closed with prayer. Diet II At Montreal, and within St. Andrew's Church there ; Thursday, the eleventh day of January, one thousand eight 19 hundred and fifty-five years : — The which day. th(> Synod of t Presbyterian Cliurch of Canada, in connec- tion with the Church of Scotland, met, according to adjournment, and was con- stituted with prayer. On the call of the Moderator, the Rev. Dr. Cook conducted the devotional exercises of the Synod in ]iraise, rcadiuQ- the scriptures, and prayer. The minutes of yesterday were read and ai)proved. The clerk stated to the Synod, that he had received, a considerable time ago. a letter from the Inspector General's Department of the Government, requesting him to make a return, to be laid before Parliament, of all persons connected with 20 this Church, "who at the date of the passing of the Act of the Imperial Parliament to make provision conc»>rning the Clergy Reserves of this Province, viz : Dth May. 1S,")3. were receiving any income or allowance from such portion of the proceeds of the Clergy Reserves as had been granted to the Synod of the Presbyterian Church of Canada, in connection with the Church of Scotland, specifyinsr the names and agi's of such persons, the annual amounts of their allowance, and through whom it is paid;' and that he had immediately issued a circular to the several IMvities. requesting a statement of their ages, to be returned to him. — Mr. Allan, of Montreal, having kindly oll'ered to furni.'^h him with some other items; — but that he had been as yet unable to make the rcqiiired return, in con.sequence of a co)i-oO siderable numlxM of the ministers having neglected to make returns to him- although written to a second time on the subject; and that he had also, at the suggestion of some of the Clergy Reserve Commissioners, written to all of the ]>arties whose names were on the b'oll for salaries. The Synod, while approving of the conduct of the clerk, directed him to use all diliecnce in procurinff as soon as possible, the whole of the required information, and in transmitting to the (Jovernment the list of incumbents up to 9th May, 1853, to furnish, at the same lime, the names of those since put upon the roll as having, in the estimation of the Synod, claims ui»on the Fund. The Committee, appointed yesterday to arrange measures for the con8idera-40 tion of the Synod, rejmrted certain resolutions which the Synod proceeded to discuss at length. The Synod, having heard the report of the committee appointed by tht> Synod to watch over the interests of the Church, in as far as tht>se miyrht bo affected by the action of the Legislature on the Clergy lieserves, anu, also, the verbal reports of such members of the committee as had been in commujiication with II ! membors (»r the Oovonimoiit o» the suhje* t,— niid, having seriouslj' and maturely considoivd that clause ol' the Clergy Reserves Act, lately passed by the Provincial Parliament at its present session, by which His Excellency the Governor in Council is authorised, with the consent of the parties interested, to commute the salaries or allowances oi" ministers chargeable for life or during their incumben- cies on the Clergy Reserves Fund, lor their value in money, — Resolved, " Ist. That it is desirable that such commutation, if upon fair and liberal " terms, should be effected ; and that the Rev. Alex. Mathieson, D.D., of Mon- "treal, the Rev. John Cook, D.D., of Quebec, Hugh Allan. Esq., of Montreal, John "Thompson, Esq., of '^)uebec, and the Hon. Thomas McKay, of Ottawa City, be the 1^ " Synod's Commissioners, with fiill power to give the formal sanction of the Synod "to such commutation as they shall approve, the said Commissioners being hereby • instructed to use their best exertions to obtaiir as liberal terms as possible ; the " Rev. IJV. Cook to be ConveiuT ; three to be a quorum ; the decision of the majority '• to be Hnal, and their I'ormal acts valid ; but that su Ministers in connection with the said " Chur.h. "2nd. That so soon as said commutation shall have been decided r\poij. and " agreed to by the said Commissioners, the Rev. John Cook, D.D., of Quebec, shall "be fully empowered and authorised, and this Synod hereby delegate to the said " Rev. Dr. John Cook full power and aiiihority to endorse and assent to the several " Powers of Attorney from the individixal parties on behalf of the said Synod, and " in their name, and as their Act and Deed, as evidencing their assent thereto. " 3rd. That all Ministers be, and they are hereby enjoined and entreated, (as to 40 " a measure by which, under Providence, not only their own present interests will " be secured, but a permanent endowment for the maintenance and extension of " religious ordinances in the Church) to grant such authoiity in the fullest manner, " thankful to Almighty God that a way so easy, lies open to them for conferring so " important a beneKt on the Church. " 4th. That the aforesaid Commissioners be a Committee to take the necessary " step>s to get an Act of Incorporation for the Management of the General Fund, * m ^ |i: 9 " so to bo obtaiiiod : tho nforosaid Cominissioiicrs to coiistilute the said rorponitioii till the noxt mot'tiiiff of Synod, whfii lour mon' mcmlMM-s shall bo added by the ■• Synod." Tho Synod ordered tho miniitos of Ihi.s nio«'lin<:' to bo printed, andacopy sent to each Minister as soon as po.«^sible, and they lurther instructed their Commission- ers, named above, to address a circular to the several ministers, showing them the h1 to at this meeting-, and giving importani'o ol connnntino* upon the plan agrepc lliom lull inlbrmation on tho subjoot. The Synod ro(iuested their Moderator to convey to the Hon. John Hamilton, jol' Kinoston. and the Hon. Thomas McKay, of Ottawa, the thanks of this Synod 10 I'or tho assistance afforded by them to the Clercy Ke.serve Connnittee of this Synod, when lately met at Quebec, and for their exertions on behalf of the interests of this [church, especially durinu- tho present session of Parliament The business for which the special moelinu' of Synod had been called, having Jboon finished, the Reverend Dr. Mathieson stated "that he availed himself of the [opportunity which this special meeting of Synod afforded, to direct the atten- jtioii of the coniingnlions within tho bounds to th<' call made by the General As- jsombly of tho Church of Scotland, and generously r(>sponded to by every ]>arish in the land to contribute to the National Patriotic Fund for tho relief of the [wives and children olthe brave men who have been disaf)led or found a soldier's 20 Igrave in lightinu' lor the honour of their country, and tho liberty, and (it is to be poped). th(^ ultimate peace of tho world, and iho advaaceniont of the L'edoemer's JKingdom ; and, alco, to the cirt umstanci-, that several of the congregations in con- liection with this Synod have already contributed or were anxioiis to contribute Iheir subscriptions throui-h tho channel thusallbrded them, to tho Patriotic Fund.'' Whereupon Dr. Mathieson moved to resolve, and it was resolved aecordinirly : • That this Synod deei)ly symiiathise with Her Majesty and her j^eoplo in the great struggle, in which she has been constrained to engage, for tho liberty and independence of nations. Sympathising also with the niimoro\is families, whoso Jiearts, in the inscrutable Providence of God, have been filled with sorrow for ''0 Ihe loss of their natural jn-otoctors. or their i'riends who have fallen in the con- 'st, and l)eing deeply sensible of, and grateful for, the inestimable l)lessings. both ivil and religious, which this colony enjoys, under Her Majesty's gracious sway, kind its connection with the ]>arent State, this Synod strongly recommend to all Ihe' congregations within their bounds, not only as an expression of their grati- tude and symiKithy, Imt as a solemn dutv. at tho earliest convenient season, and |n the way that to the Minister and Elders seems best, to make contributions to ^lo National Patriotic Fund: — and that Hew Ramsay, Esq., Montreal, be appoint- •"d to receive from the respective congregations their several contributions, and hansinit them to "William Younn', Esquire. AV.S.. Edinburgh, who has been appointed 40 ^o receive the contributions of th(> Cliurch." The Synod was then clo.sed with prayer. That tho said proceedings of the said Synod are valid aud binding ; that the [erms and conditions thereby established and declared, form the basis for the listribution and ajiplication of tho said b\ind, hereinbefore and hereinafter referred That the .sol(> bu.siness submitted at the meotins: of the said Synod of the ^ . I^f - ii I, ::' "'■■ 10 Prfishytt'Hnn Chunh of Canadii. in coniu'ction with tho Church of vS«'otland, at th»» diets thoroof, hold on the l«'nth and t'lyv«'nth days of January, eighteen hundred and fifty-live, was tht conBidoration of giving force and effect to the clause permit- tiiiff t he ( Jovernor of the then Province of Canada in Council to commute the claims of MinisierH, IncnmbentH and Missionaries upon the Clergy Reserves Funds, with the consent of ilic Imdit's and parties severally interested, as set out in the minutes here- inbefore recited. That the said Synod, on its own 1)ehalf and on behalf of its members, deter- mined at its said meeting to take advantage of the said commutation clause, and ai)point«'d a committee, styled Commissioners, to give effect to the said determina- 10 tion, and the said Synod ordered said minutes to be printed, and instructed said Committee to send a coi)y thereof to each minister entitled to commute. That the said Reverend John Cook, iJoctor of Divinity, was appointed convener and Chairman of said Committee, and as such, was authorized to, and did, address a circular to all the then Ministers and Incumbents of the said Church entitled to benefits from the .said Funds, among others to the Petitioner, which circular was in the following words : — " Quebec, 24th February, ISoS. '• Revd. Sir, " I am instructed by the Commutation Committee'appointed at the last meet- ing of Synod, to enclose to you two Powers of Attorney, apin'OA'od by the [" Government and by the Synod, which it is necessary you should sign and for- ['• ward to Hugh Allan, Esq., Montreal, without delay. — in order to our obtaining a I'' commutation of Clergy Reserve monev, which will be advantageous to the I" Church. All the Ministers present at the meeting of Synod in January, agreed I'' to commute, and the Ministers of the Church of England have unanimously [" signed similar powers to those now forwarded to you. " The fundamental conditions contained in the minutes of the Synod, held at j" Montreal, on the 11th January, 18/)r), which are alluded to in one of these j" powers, and which by the terms of the said minutes, it shall not be competent ^^ for the Synod at any time to alter, unless with the consent of the Ministers I" granting such power and authority," are first, "That the interest of the Fund I" shall be devoted in the first instance, to the payment of salaries of =6112 10s J" each,'' to such Ministers, " and that the next claim on the Fund shall be that of j" Ministers on the Roll of the Synod, and who have been pixt on the Synod's Roll > since the Olh May, 185.3;" and, second, "That all persons who have a claim to r such benefits, shall be Ministers of the Presbyterian Church of Canada, in con- f'nection with the Church of Scotland, and shall cease to have any claim, when [' they cease to be Ministers in connection with the said Church." " Of these conditions it is presumed you will approve, and I have the satisfaction 40 ^' to inform you, that on the terms proposed by the Government, and to which the r Commutation Committee are prepared to agree, as soon as these powers are I* received from the Ministers of the Church, it will be certainly possible to comply with the first condition, in so far as respects Ministers settled before the 9th May, 1853, and, preserving the capital, to secure to them, from the interest. I' salaries of ,£112. 10s. for life, or incumbeucv. And it is. therefore, earnestly en- »ill 'ifi II i\ ll !•' hi to 01 I.' Vc tli l>a hu iio Ro nil a 8 am in 1 hu; Ion of < iiev jiro said 11 " (reatod ihnt (horo may bo no hositatiou or delay in Hisfuins «iul Ibrwardinpr those •' povvors. '• I am luiilu'i- iiistiu.t.'d to call your altt'iilioii to the following Uesolution, ■'passed unaninioUMly, at the last nicotinm; of Synod : — " That all ministers be, and thoy are hereby enjoin 'd nnd eutrwated, (as to a •■ measure, by vvhieh, under I'rovidenco, not only their own private interests will '• be secured, but permanent endowment for the maintenance and extension of Reli- • ^•ious ordiuanros in the Church.) to <>rant such authority as is necessary to eifecl a ''commutation, in the fullest nutnner, thankful to Almii,'hty Ood, that a way so^^ " easy is oiu-n to them for conferring so important a benefit on the Church. .Not ■'doubting: that you will concur in the views of the Synod, • I am, "K'l'v'd. Sir, " Your obedient Servant, (Siuned) JOHN COOK. Convene,'." "To the IJeverend."— That Petitioner nnd othpr Ministers and Tnouml)ent8 of the said Pres])yterian Churf-h of Canada, in lonnection with the Church of of Scotland, and the ^lis- sionaries of the said Church of Scotland, renounced their individual riahts in the .said Fund, and authorised the said John Cook to act for each of them and in-" their behalf, for and by reason of the terms and conditions of the resolutions pa.-sed at the said meeting of Synod on the tenth and eleventh January, (Mirhteen hundred and lifty-iive. and more especially npon the consideration that the iMind to be created thereby would be ti ])ormanent endowment for llie Presbyterian Church of Canada, in connection with the Church of Scotland. That no chanae could be made in the distribution and application of the in- terest and revenues accruing on the said Fund' received under the said Commvitation Act, and the Acts th(M-ein referred to, without the full consent and a])proval of each nnd all of the comniulinff Ministers who renounced their in- dividual interests therein, in consideration of the matters set out in the resolutions 30 l)assed at the said meetinii' of Synod on the tenth and eleventh January, eifrhteen hundred and fifty-tive. That on and since the ninth of May, eisrhteen hundred and fifty-three, the Peti- tioner was entitled to the benefits derivable from the proceeds of the said Clergy Reserves under the said Imperial and Provincial acts relating thereto, and on the ninth day of May, eighteen hundred and fifty-three, Petitioner was in the receipt of a stipend and allowance therefrom amounting to upwards of one hundred pounds annually, and further at the date of the passing of the resolutions of the said Synod in favoxir of the said commutation, to wit, on the eleventh day of January, eighteen hundred and fifty five, the annual value of Petitioner's stipend and allowance, 40 forming a life e diverted from the purposes for which it was originally created, and the said Commissioners and (heir legal successors held the same in trust for the Presbyterian Church of Canada, m connection with the Church of Scotland. 40 That afterwards, an Act of (he heretofore Parliament of Canada was passed (22 Vic, Cap. 6Q) to in«orporate a Board for the management of the said Fund, and for svich other funds as should be contributed, subscribed or paid in, from time to time, and that it was therein declared, at the time of the passing of the said Act, that said funds were held in trust by certain Commissioners on behalf of the said Church, and for the benefit of the said Presbyterian Church of Canada, in (>onnec n-i with the Church of Scotland. rK? 11 !■;)■ ii'l ^^Vr5^ I'kM V^ i ■> I 18 That ill the tiino of such Commutation tht> iunds arisiiiij tln'rcfrom, ami which wn-e ronstitulod into one luml, amouutod to tho sum of One Hundred iind Tvwnty-stAven thousand Pounds, which it was declared, by a By-law passed under the provisions of the last mentioned Act, should be kept separate and dis- tinct from any other funds which might come into the possession of the Board of Management of the Temporalities' Fund of the Presbyterian Church of Canadai in conneetion with the Church of Scotland. That under tho provisions of the said last mentioned Act, a body corporate and l»olitic was created vinder the name of the " Board for the Management of the • T(>mporalities' Fund of the Presbyterian Church of Canada, in connection with the 10 "Church of Scotland," to wit, the Corporation, Respondents.'w'hich said Board it was declared, among other things, should consist of twelve members, of whom five shoxild be ministers and seven should be laymen, all lieing ministers or members in full communion with the said Church, and of whom seven should beaquoruml and that the said Board should thenct'forth have, hold, possess and enjoy, in trust for the said Church (meaning the said Presbyterian Church of Canada, in connect- ion with the Church of Scotland) and for the puri)oses in the said Act and in the ])reamble thereof mentioned, all moneys, debentures, bonds, bank or other stocks and securities which were then held by the Commissioners of the said Chvxrch. in Trust for the said Church, under the terms of the resolutions of the tenth and 20 eleventh of January, eighteen hundred and tifty-live, hereinbefore cited, and subject to the conditions in the said Act mentioned. That the said last mentioned Corporation continued to manage and ad- minister the Trust Fund arising from the original commutation, and divevs other funds contributed for the purposes mentioned in the said last mentioned Act, until the lifi(>enth day of June, eighteen hundred and seventy-five, when the aggregate amount of the funds, assets, and money under the control of the said last mention- ed Corporation, Kespondent, and by them held in trust for the Petitiom v and for all others entitled to ]iarticipatt» in the revenues and interests accruing ti."^?reon. and lor the benefit of said Church, amount»>d to the sum of four hundred and sixty- 30 three thousand, three hundred and s(>venty-one dollars and fifty-two cents, (403,371. .')2) at par value, according to statement dated first Mav, eighteen hundred and seventy-five, as set out in the Acts and Proceedings of the Synod of the said Church for eiuhteen hundred and seventy-five, at page forty-five of the Reco.ids thereof That an Act was i)assed by the Legislature of the Province of Quebec (38 Vic : Cap : (U) assented to on the twenty-third February, eighteen hundred and seventy-five, entitled an act to amend the act intituled 'An Act to incorporate the '• Board lor the management of the Temporalities' Fund of. the Presbyterian 'I Church of Canada, in conneclion with the Church of Scotland" and providing 40 for the administration and distribution of the funds held and administered under the Act of the late Province of Canada (22 Vict : Cap : 00). That the said Act of the Province of Quebec (38 Vic, Cap. 64) relates to sub- ject matters beyond the competency of the Local Legislature under the British North America Act, 1807, to wit, the Act of the Parliament of the United Kingdom of Great Britain and Ireland, (30th and 31st Vic, Cap. 3), and the Legislature of the Province of Quebec was incompetent to pass said Act; and the said Act of St., 14 the Province of Queber, in so far us it derogates from, or piirports to modify or vary the Act 22 Vic, Cap. 66, of the heretofore Province of Canada, is null and of no etfert. That the subject matters of said Act of the Legislature of Quebec are not of a mere local or i)rivate nature within the Province of Quebec, but affect the rights, of persons residing beyond the Province' of Quebec, an;' not subject to its juris- diction. That the Petitioner is not subject to the legislation of the said Province of Quebec affecting his interests in the said funds, and the said Legislature of said Province of Quebec has ex<'eeded its competency and jurisdiction in passing 10 said Act. That the interests of the Petitioner in the moneys arising from the said com- mutations and in the Temporalities' Fund, as constituted by the Act (22 Vic, Chap. 60) of the late Province of Canada, are not of a mere local or private nature in the Province of Quebec, but are a matter of general interest. That the objects of the Corporation, Respondents, under the Act 22 Vic, Cap. 66. of the heretofore Province of Canada, were not, ard are not, of a provincial nature, b\it extend to persons residing in the Provinces of Ontario and Quebec That the said Act of the Legislature of the Province of Quebec is illegal and unconstitutional, and beyond the competen.-y of the said Legislature. 20 That the said Act of the Legislature of the Province of Quebec (38 Vic, Cap. 61) is further illegal and unconstitutional, in permitting and providing for the payment of an annual stipend to ministers who have ceased to be members of, or to have any connection with the Presbyterian Church of Canada, in connection with the Church of Scotland, and in providing thpi the Temporalities' Board, to wit, the Corporation, Respondents, should, if necessary, draw upon the capital fund, to wit, the Temporalities' Fund, in order to provide for the payment of the stipends and salaries to ministers, as mentioned in the said last mentioned Act, and in providing that : " As often as any vacancy in the Board for the "management of the .said T-miporalities' Fund occurs by death, resignation or 30 •' otherwise, the beneficiaries entitled to the benefit of the said Fund may each •' nominate a person, being a minister or member of the said United Church ; or in the •' event of there being more than one vacancy, then one person for each vacancy and •' the remanent members of the said Board, shall thereupon from among the persons " so nominated as aforesaid, elect the personornumber of persons necessary to fill such " vacancy or vacancies, selecting the person or persons who may be nominated by the " largest number of beneficiaries to nominate as aforesaid, the remanent members of " the Board shall fill up the vacancy, or vacancies, from among the Ministers, or " members of the said United Church," thus depriving a Minister who may have retained his connection with the Presbyterian Church of Canada, in connection 40 with the Church of Scotland, of the right to administer the funds under the con- trol of the said Corporation, Respondents, and disfranchising and disqualifying all members of the said last mejitioned Church from administering the said Fund which, of right, alone belongs to them ; and further in setting aside the legal method lor filling vacancies in the Board, Respondents, as prescribed by the said Act 22, Victoria, Chapter m, and the By-Laws made thereunder. That the said Statute of the late Province of Canada, (22 Vic. : Cap. 66) is legally and constitutionally in !i m 16 full forco and oHect, and the RespondtMits iire subject to its provisions, and the By-LawB made thereunder by the said Presbyterian Church of Canada, in connec- tion with the Church of Scotland, previous to the foiirteenth day of June, eigh- teen hundred and seventy-five, and by those members. Ministers, and lillders of the said last mentioned Church, who remained in connection then^with, and who have not seceded thinvfrora on and since the fifteenth day of June, eighteen hundred and seventy-five are now in full force. That the said Respondents have no power to apply the capital sum of one hun- dred and tw('nty-sev(Mi thousand pounds, or the sum administered by them, to the payment of stipends or to any other purpose whatever, but the said sum and such 10 other sums as should be contributed to it were intended to remain intact as a per- manent endowment for the said Presbyterian Church of Canada, in connection with the Church of Scotland : as fully appears from the Minutes and the Synod letter of the Reverend John Cook hereinbefore cited, under the express provisions of both which the Petitioner surrendered his interests in the Clergy Keserves and their proceeds to the said Church. That the .said Respondents had power only to use and apply the revenues, interests and accruals of the said Endowment Fund, for the jmrposes mentioned in the .'(aid Art incorjioratinu' the Board, Respondents. That the Corporation, Respondents, since the fifteenth day of June, eighteen 20 hundred and seventy-five, up to the month of December, eighteen hundred and seventy-seven, have drawn upon the capital of the said Fund to the extent of the sum of forty thousand five hundred dollars and twenty-five rmts, (§40,.')00.25), il- legally and in contravention of the said Act (22 Victoria, Chapter 66) of the here- tofore Province of Canada. That the Reverend John Cook, Doctor of Divinity, of Quebec, the Reverend James C. Muir, Doctor of Divinity, of North Greorselown, in the Province of Quebec, and the Rev. G-eorge Pell, Doctor of Laws, (LL.D.\ of Walkerton, in the Province of >)ntario, were commutors, and did commute their claims, upon the said Clergy Reserves, and upon the funds arising therefrom, concurrently with the Petitioner, 30 and under and subject to the terms of the fundamental principles hereinbefore cited, passed by the said Synod on the eleventh day of January, eighteen hundred and fifty-five, but on and since the said fifteenth day of June, eighteen hundred and seventy-five, the said Reverends John Cook, James C. Muir, and George Bell, did join with another religious association called the Presbyterian Church in Canada, composed of persons who previous to the said fifteenth day of June, be. longed to four separate? and distinct religious organizations, and extending over various provinces of the Dominion, under four separate and distinct ecclesiastical governments, entirely unconnected with each other, to wit, the Canada Presbyte. rian Church, the Presbyterian Church of Canada, in connection w;th the Church 40 of Scotland, the Church of the Maritime Provinces in conne<'tion with the Church of Scotland, and the Presbyterian Church of the Lower Provinces, several members from each of which said last mentioned religioiis organizations united them- selves together in a new and distinct religiotis organization and a.ssociation called the Presbyterian Church in Canada : — that the said Reverends John Cook, James C. Muir and George Bell, on said fifteenth day of June, eighteen hundred and seventv-five. ceased to be Ministers thenceforward of the Presbvterian Church of J a i il 16 Canada, in ronnoctinn with th« Church of Scotland; and Petitioner avers that said Kevcrcncs John Cook, James 0. Muir and George Bell, have not been entitled to receive any benefits i'rora the said Fund, or to be paid any sums oi" money by the Corporation, Respondents, by reason of their having seceded from, and ceased to ho Ministers of the said Presbyterian Church of Canada, in connection with the Church of Scotland. That since the said fifteenth day of June, eighteen hundred and seventy-five, the said Corporation, Respondents, have paid lo the said Reverend John Cook, the sum of eleven hundred and twenty-five dollars; to the said Reverend James C. Muir, the sum of nine hundred dollars ; to the said Reverend George Bell, the sum 10 of eleven hundred and twenty-five dollars ; out of the said Fixnd, and the interest and reveniu'8 thereof, for Commutation Allowances by the said Corporation, Res- pondents, alleged to have accrued on said Fund since the said fifteenth day of June, eighteen hundred and seventy-five, in favour of the said Reverends John Cook, James C. Muir, and George Bell, in their quality as members of the Presby- terian Church of Canada, in connection with the Church of Scotland ; though since the j^aid fifteenth day of June, eighteen hundred and seventy-five, the said Rever- ends John Cook, James C Muir, and George Bell, have been and are ministers of the said new organization, styled the Presbyterian Church in Canada. That Petitioner has rea.son to believe and verily believes, that the Corporation. 20 Respondents, will pay to the said Reverends John Cook, Ja^nes C. Mixi'', and George Bell, the sum of two hundred and twenty-five dollars each, on or before the first day of January next, as Commutation Allowances from the said Fund, to each of the said last mentioned Ministers, in their quality as Ministers of the Pres- byterian Church of Canada, in connection with the Church of Scotland, for the half-year ending thirty-first of December, eighteen hundred and seventy-eight. That preceding the fifteenth day of June, eighteen hundred and seventy-five, the Reverend John Fairlie, minister of L'Orignal, Province of Ontario, the Reve- rend David W. Morison, Bai helor of Arts, Minister of Ormstown, Province of Quebec, the Reverend Charles A. Tanner, of Richmond, Province of Quebec, 30 amongst others, not being of the number of original commutors, were not entitled to receive any allowance or stipend or revenue or emolument of any natxxre or kind from said Fund administered by said Respondents, under the terms of said statute 22 Vic, Cap. (36, unless the interest, revenues and accruals on said Fund, and contributions from other sources thereto, were suflicient to allow the payment of certain allowances or emoluments therefrom after the deduction of the suras payable to the original commutors. That the said RevenMid John Fairlie, Reverend David W". Morison, and Reverend Charles A. Tanner, of Richmond, Province of Quebec, have received from said Corporation, Respondents, since the fifteenth day of June, eighteen 40 hundred and seventy-five, for, and by reason of their connection with and having been Ministers of the Presbyterian Church of Canada, in connection with the Church of Scotland, since the said fifteenth day of June, eighteen hundred and seventy-five, the sum of Five Hundred Dollars each, to which said last mentioned Ministers were not entitled,^both by'reason of having ceased to be entitled to the benefits from the Fund administered by said Corporation, Respondents, under the terms of the resolution of the eleventh^ of January, eighteen hundred and fifty- IT five, th<^ said Revprends .Tohn Fnirlic, David W. Morison and Chnrlos A. Tanner ha^-incr coasod to ho tnemborH of the Presbyterian Church of Canada, in roirnpc tion with Ihe Cenrch of Scotland, and having joined the said Presbyterian Church, in Canada as aforesaid, and because the revenues and interests accruin remaining member of the said Board illegally pretend to exercise and do in fact exercise and perform all the functions uppertaiuing to legally elected and appointed members of the said Board. That the said Reverend John Jenkins, Reverend Gavin Lang, William Walkev, Esqinre, Robert Dennistoun, lOsquire, Reverend John Cook, Reverend 20 Daniel M. Gordon, John L. Morris, ICsquire, and Sir Hugh Allan, Reverend John H. Mackerras, James Michie, Esquire, Alexander Mitchell, Esquire, and William l)arling, Esquire, are not entitled to administer the said Fund, or to be or remain as members of the Corporation, Respondents, and should be removed from the said Board, and the said Respondents are not entitled further to administer the funds under the control of the Corporation, Respondents, or to make any infringe- ment upon the capital thereof, or to disburse the revenues thereof in any manner whatever, the said Board being illegally constituted. That the said Corporation, Respondents, have infringed upon the capital of the said Fund under their management and control in the manner hereinbe'oic 30 indicated, and have illegally paid money, proceeds of the capital and revenues of the said Fund, in the manner hereinbefore indicated, without any legal power or authority so to do, and have illegally continued and permitted the said Reverend John Jenkins, Re\erend Gavin Lang, William AValker, Esquire, Robert Dennis toun. Esquire, Reverend .lohn Cook, Reverend Daniel M. Gordon, Sir Hugh Allan, and John L. Morris, Esquire, Reverend John H. MacKerras, William Darling. Esquire, and Alexander Mitchell, Esquire ; to act as members of the said Board, Respondents, without having fulfilled the formalities prescribed by law and the Act of Incorporation of the Corporation, Respondents, for their election as members of the f^aid Board, and all the members now^ comprising the Board 40 of the Corporation, Respondents, are illegally exercising the power of legally elected members, and the said Corporation, Respondents, composed as aforesaid* are now acting bayond their power in continuing the exercise of the powers conferred on the said Board without having a quorum of the said Board duly elect- ed as members of the said Board, and by permitting the said parties, not being members thereof, to take part in the deliberations and proceedings thereof, and by :^''. 18 adrr.inistering the funds under their control illoffally and contrary to the terms of the Act of the heretofore Province ol Canada, incorporating the Board to wit : 22 Vic, cap. 6(1 That the Corporation, Respondents, have hitherto made the half-yearly pay- ments of Ministers' allowances from said Fund sometime before the day on which such payments to Ministers would become due, to those entitled to receive same, and the Corporation, Respondents, as Petitioner has been credibly informed and believes are immediately about illegally to issue cheeks in payment of and to pay the pretended allowances which will become due on the first day of January next. That the said Petitioner has a personal interest in the Funds administered by 10 the Respondents and more especially in that portion of the Funds so administered by them arising from the Commutation, of claims of Ministers upon the Clergy Reserves and the proceeds thereof, and the said Petitioner has a right to allow- ances therefrom for life, provided he maintains his connection with the Presby- terian Church of Canada, in connection with the Church of Scotland, and does not cease to be a Mhiister in connection therewith, which said allowances and which said interest in the said Funds are endangered by the infringement upon the Capital of the said Fund, made by the Board, Respondents, and by the illegal ])ayments hereinbefore indicated or made, or that may hereafter be made by the Board, Respondents, out of the capital of the said Fund or the interest or revenues 20 accruing thereon. That all the payments heretofore made by Respondents to the persons herein- before mentioned, since the fifteenth day of June, eighteen hundred and seventy- five, or contemplated to be made out of the said Fund, as hereinbefore stated, are contrary to the provisions of the statute of the heretofore Province of Canada, 22 Yic, Chap. (j6, and in so far as they may be ostensibly authorised by the Acts of the Parliament of Quebec, or of any of them, are illegal and unconstitutional, and ultra vires of the Corporation, Respondents, as Petitioner is advised and verily believes. Wherefore the said Petitioner, personally and in his said qualities, prays that 30 a Writ of Injunction may issue against the said Corporation, and a'jainst the said Reverend John Jenkins, Reverend G-avin Lang, William Walker, Esquire, Robert Dennistoun, Esquire, Reverend John Cook, Reverend Daniel M. Gordon, Sir Hugh Allan, John L. Morris, Esquire, Reverend John H. Mackerras, William Darling, Esquire, and Alexander Mitchell. Esquire, enjoining them and each of them to appear before this Honorable Court or a Judge thereof, to answer the present Petition. That the Act of the Legislature of the Province of Quebec, intititled " an Act to amend the Act, intituled, 'an Act to incorporate the Board for the management of the Temporalities' Fund of the Presbyterian Church of Canada, in connection with 40 the Church of Scotland, " passed in t.»e thirty-eighth year of Her Majesty's reign. (38 Vic, Chap. 64), may be adjudged and declared to be unconstitutional and ille- g'ii, and be rescinded atid revoked, and that the subject matter thereof as therein /resented may be declan to be ultra vires of the Legislature of the said Province of Quebec, and that it be declared and adjudged, by the judgment to be rendered upon this petition, that the said Corporation, Respondents, are acting and taking proceedings beyond their power, and wnthout having fulfilled the formalities pre- scribed by law, and by the Act of Incorporation thereof, by permitting the said I,." 20 last named persons to act as members of the said Boaid and of the said Corpora- lion, without liaving been elected as members of such Board in the manner pro- vided by law, and by the sai.l Act of Incorporation, and, further, by administering intermeddling with, and disbursing the fundsand property of the said Corporation. in a manner and for purposes not authorised by the said Act of Incorporation of the 22nd Vic, Chap. 66 ; and by holding, administering, dispensing and disposing of the funds and propi-rty of the said Corporation, without having a sufficient number of members of the said Corporation elected in the manner provided by law, and in the Act of Incorporation thereof, to constitute a quorum of the said Corporation or of the said Board. And that it be further adjudged and declared that the said Rev- 10 erend John Jenkins, Reverend Gavin Lang, William "Walker, Esquire, Robert Dennistoun, Esquire, Reverend John Cook, Reverend Duniel M. Gordon, ^^ir Hugh Allan, John L. Morris, Esquire, Rev. John H. Mackerras, William Darling. Esquire, and Alexander Mitchell, Esquire, have no right or authority to sit, deliberate or act as members of the said Corporation or Board, and thereupon further prays that the said Corporation be by such judgment restrained from acting and proceeding in respect of the duties imposed upon them by the said Act of Incorporation of the 22nd Vic, Chap. 66; and from administering, using, dispensing or disjiosing of the funds and property of the said Corporation : and be ordered and enjoined not to act in respect of the said duties and powers, and in respect of the said oq funds and property, until an adequate and sufficient number of members thereof shall have been duly elected in the manner and wilh the formalities provided by law and by the said last mentioned Act of Incorporation. And further, that the Respondents, Rev. John Jenkins, Rev. Gavin Lang William Walker, Esquire, Robert Dennistoun, Esquire. Reverend John Cook, Rev. erend Daniel M. -Gordon, Sir Hugh Allan, Reverend John MacKerras, William Darling, Esquire, Alexander Mitchell, and John L. Morris, Esquire, be restrained from acting as members of the said Board, and be enjoined not to sit or act a-:, or perform any of the functions of members of the said Board, unless and until they shall be duly elected members thereof, in the manner, and with the formalities. 30 provided by the said Act of Incorporation of the said Board, 22 Vic. chap. 66. And the Petitioner further prays, that it be ordered, that the said Respondents, and each and all of them do forthwith suspend any and all acts j^nd proceedings in their several capacities respectively ; in respect of the administration of the said funds and property, and in respect of all matters in dispute in this cause. That it be adjudged and declared that the Fund administered by the Cor- poration, Respondents, amounting to the sum of four hundred and sixty-three thousand, three hundred and seventy-one dollars and fifty-two cents, ($463,371.52) is a Fund held in Trust by them for the benefit of the Presbyterian Church of Canada, in connection with the Church of Scotland, and for the benefit of the 40 Ministers and Missionaries who retain their connection therewith and who have not ceased to be Ministers thereof, and for no other purpose whatever. That the said Reverend John Cook, Reverend James C. Muir, and Reverend George Bell, be declared to have ceased to be Members of the Presbyterian Church of Canada, in connection with the Church of Scotland, and not be entitled to any sum of money or benefit from the funds administered by Respondents. That the said Reverend John Fairlie, Reverend W. Morison and Reverend Charles A. Tanner be declared not entitled to receive any sum of money whatever from the 21 funds administered by Eespondonts, and that Respondents be enjoined and order- od not to pay said Reverend John Cook, Reverend James C. Muir, Reverend George IJell, Reverend John Fairlie, Reverend David "W". Morrison and Reverend Charles A. Tanner, or any of them, any sum of money whatever from the capital or revenues of the funds administered by them, and further, that the said Corporation Respondents, be adjudged and ordered not to pay to them the said Reverend John Cook,Reverend James C. Muir,Revert'nd George Bell, Reverend John Fairlie, Reve- rend David W. Morison, Reverend Charles A. Tanner, or to any other person whom-, soever, any sum of money whatever out of the capital or revenues or interest accrued and to accrue on said Fund, under pain of all legal penalties, until suoh further jq order shall be made upon the said petition, as to this Honorable Court, or any Judge thereof shall seem meet and expedient. And the said Petitioner hereby de- clares his readiness to give good and sufficient security, in the manner prescribed by and to the satisfaction of the said Court or of a Judge thereof in the sum of Six Hundred Dollars or any higher sura fixed by the said Court or Judge for the costs and damages which the Respondents may suffer by reason of the issue of said Writ of Injunction, and the said Petitioner hereby offers as such security. James S. Hunter, Notary Public, and Joseph Hickson, Railway Manager, both of the City and District of Montreal, who will justify as to their sufficiency if requiredi the said Petitioner reserving the right to take such other and further conclusions 20 in the matter, a? he may be advised and permitted, the whole with costs of suit and of Exhibits against such of said Respondents as may contest the present action but without costs against such of the Respondents as may declare that they abide the order of the Court, of which costs the undersigned Attorneys pray distraction. Montreal, Slst December, 1878. (Signed,) MACMASTER, HALL & GREENSHIELDS, Attorneys for Peiilioner. (Signed,) J. J. C. ABBOTT, Q. C, M, M. TAIT, Of Counsel. (True Copy.) 80 I. the undersigned, one of the Justices of the Superior Court for Lower Canada, sitting in the District of Montreal, having read the foregoing Petition, and the affi- davits and documentary evidence produced in support of the same, and seeing further the offer of the said Petitioner to give good and sufficient security in the manner prescribed by me and to my satisfaction, I do approve of the security offered by Petitioner and do order and prescribe that 'the said sureties offered to wit :— James S. Hunter, Notary Public, and Joseph Hickson, Railway Manager, both of the City and District of Montreal ; do enter into a Bond before me to the 40 22 extent of Twelvo Hundred Dollars for costs and damages which the Respondents may siilfer by reason of the Writ of Injuction herein ordered to issue ; they then and there justifying as to their sufficiency upon oath ; and that thereupon a Writ of Injunction do issue ac«'ording to the prayer of the said Petition, to summon the Respondents to be and appear before any one of the Honourable Justices of the said Superior Court at Montreal aforesaid, on the thirty-lirst day of Janviary next, (eighteen hundred and seventy-nine,) to answer the premises, and i)ending such further order and judgment as may be rendered in this cause, I do hereby order and enjoin the said Corporation, Respondents, and the said Respondents, the Reverend John Jenkins, Reverend Gavin Lang, William Walker, Esquire, Robert 10 Dennistoun, Esquire, Reverend John Cook, Reverend Daniel M. Grordon, Sir Hugh Allan, John L. Morris, Esquire, Reverend John H. Mackerras, William Dar- ling, Esquire, and Alexander Mitchell, Esquire, and each of them forthwith, to sus- pend any and all acts and proceedings in their several capacities, respectively, in respect of the payment of all sums of money, and of the administration of the funds under the control of the said Corporation, Respondents, and in respect of all other matters in dispute in this cause, under pain of all penalties provided by law. Montreal, 31st December, 1878. (Signed), L. A. JETTfi. (True copy). J. mM' -^^v*^^ ^^/'-* vr-T^Z- ^ ^. ^j^f |n t|c IPribg (Council. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, IN THE PROVINCE OF QUEBEC, (APPEAL SIDE.)^ ,^. ^^'.-7 BETWEEN THE REVEREND ROBERT DOBIE, AND T^, ^r.*^-*!!^ <^ Appellant, BOARD FOR THE I\fANAGEMENT OF THE TEM- PORALITIES FUND OF THE PRESBYTERIAN CHURCH OF CANADA IN CONNECTION WITH THE CHURCH OF SCOTLAND" ETAL., - -Respondents. Argument of Mr. Macmaster, of Counsel for the Appellant. 10 Tlie Petitioner is by statute a beneficiary under an Act (22 Vic. cap. 66), tntrod entitled : '• An Act to incorporate tlie Bonnl tor tlie Management of the Tempo- tion. ralities Fund of tlie Prcsbytei'iiui Church of Canada in connection with the Church of Scotland," passed by the Parliament of the late Province of Canada. The Respondents have caused this Act to be amended by an Act of the now Province of Quebec (38 Vic. cap. 64) -and by two other Acts — one of theLegis- latiu'e of Quebec (38 Vic. cap. 62), ami the other of the Legislature of Ontario (38 Vic. cap. 75) — each of the latter Acts being entitled: -'An Act respecting the Union of certain Presbyterian Chnrchus nanu'd therein." The Appellant attacks the constitutionality of the Act 38 Vic. cap. 64 directly ; and indirectly that of the two other Provincial Acts. The Act of the old Province of Canada, 22 Vic. cap. 66, created a corporation for the purpose of holding and administering the funds and property of the Presbyterian Church of (Canada in connection with the Church of Scotland for certain specific objects and on certain fundamental conditions, throughout the whole of the heretofore Province of Canada. This Act continued in force without question till 1875, when an application was made to the Legislature of the Province of Quebec for an Act, ostensibly to amend but really to abrogate, its provisions. The ubject of the amendment, as appears from its preatnble and pro- 20 visions, was to modify and repeal the terms of the original Act " with a view to the union " that was then contemplated and agreed upon between the Presby- terian Church of Canada in connection with the Church of Scotland, the Church of the Maritime Provinces in connection with the Church of Scotland, the Pres- uc- > ]e value or locus of the real estate it might accpiire, provided it be sold by the Board within m. ,■ ,;< l^WA • 22 Vie. cap, l)(J, confers " civil rights," thouj^hout whole of Province of Canada, two years after its ac(iuisitioii. Such are the ^^otoers or *' civil rights " of this cor- poration i\s cUstingiiisheil tVoin the actual property it might iiave ncquired, It is conteutJed hy Appellunt that i\\QMi powers or civil riyhiii — extending as they unquestionably did over t,he domain of the whole of old Canada — did not become severed by the Act of Coi; federation into 'S-ivil rights" that could in iiny sense be (U'cmed provincial. The Ajjpellant submits that after, as well as before, the British North America Act, 1867, the ^w^oer of the corporation creiited by the Act 22 Vic. cap. 66, to acquire, hold and sell real estate in both the Pro- vinces of Ontario and Quebec was perfct, that neither provincial legislature could destroy that power, and that what one legislature could not do by itself it could 10 not do by invoking the aid of another body equally powerless; that, in a word, the powers of provincial legislatures are not co-operative as between provinces, but distributed between the provincial legislatures and the Dominion parliament ; and that what is beyond the competency of any one legislature enures to Par- liament. 22 Vic. cap. 66. The objects To return to the Preamble, it is clear that the objects — " purpo.ses" — of incor- of the Act, poration are twofold : Ist. To hold and administer the fund obtained from the commutation of the claims of ministers on the Clergy Reserves in trust for the Presbyterian Church of Canada in connection with the Church of Scotlaml , and for the application of 20 the revenues (not the capit.al) '' for the encouragement and support of ministers " and missionaries of the said Church, and for the augmentation of their stipends, " and towards making a provision for those who may be incapacitated by age or " infirmity." 2nd With "other funds" to erect and maintain and endow Churches and manses in connection with the Church, and to aid young men to study for the ministry." • The preamble is in these wonis : " Whereius it hatli been represented to the Legislature of this Province that '* it is desirable that provision should be made for the management and holding .30 " of certain funds of the Presbyterian Church of Canada iu connection with the " Church of Scotland, now held in trust by certain commissioners hereinafter " named, on behalf of the said Chiu'ch, and for the benefit thereof, and also of " such other funds as may from time to time be granted, given, bequeathed or " contributed in addition thereto ; " And whereas the said funds are so held in trust, and the revenues thereof " are to be approprijited for the encouragement ami support of ministers and " missionaries of the said Church, and for the augmentation of their stipends " and towards making a provision for those who may be incapacitated by age or " inlirmity ; 40 " And whereas, secondly, when and if it shall so please the said Church, and *• so soon as other funds hereafter shall be contributed, subscribed, or paid in " from any sourci for the pur[)o.se to the Corporation hereby erected, it is desired " that such other funds shall be appropriated for granting aid towards the erection " and maintenance and endowment of churches and manses in connection with " the said Church, and the aiding of young men to study for the ministry ; and " whereas the erection of a corporation will best promote the purposes aforesaid." 9 i. % Section 1. Decliirt'S tlit* Corporation created " for the purposes herein afore- said ir. the preamble recited." Now are these "purposes" or objects in any sense provincial ? The Domain Ultra Pro- of the Church in Canada at the time the Act was passed was coextensive with vinciul pur- the limits of the Province of the old Canada. Ths Synod of the Presbyterian P"^'^*"'"'^ Church of Canada in connection with the Church of Scotland comprised all the ministers of the Church in the Province of diniida, from Lower Canada as well as from Upper Canada. 'Ihe revenues of the fund were api)ropriated " for the ' .'. encouragement and support of ministers and missioiiaries," whether these came 10 from Lower Canada or U|»per Canada. Nor was there any restricti(m as to the residence or field of labour of the minister or missionary. Tha purpose, was that the minister or missionary should be sui)ported and maintained, at home or abroad, — there is no restriction — in Canada or elsewhere. There is no statutory bound to the ministerial vineyard. The broad terms of the Act rebut the idea of restriction to " provincial olyects," or limits, nay, even, of restriction to the limits of Canada. Again, the second object of the Act— the power to erect and maintain Where churches and manses — clearly implies the ^vowtjr, — the civil right — to erect, main- Synod tain and endow churches in any part of Canada or — so far as any restriction by ™'^" ^• 20 the Parliament of Canada is concerneil — elsewhere. This power the Board had unmistakeably, and its natural corollary, the power to acquire and dispose of real estate. The powers conferred by this Statute are not restricted even to Canada, much less to any Province. Further, it will be observed (section 0) that : " The said Corporation shall hold their meetings at such place or places within " this Province (Canada) as they shall from time to time direct and appoint." The meetings were hehl sometimes in Upper Canada, sometimes in Lower, according as the Synod met in one of the Provinces or the other. 30 The following is an extract from the evidence of Mr. James Croil, the secre- tary of the Board, Respondents. (Appeal Book, p. 230, lines 18 to 35.) : " Q. Were there not meetings of tlie Board held in Ontario and Quebec •' at the places where the Synod happened to meet, that is, prior to the 15th "June, 1875? " A. Yes ; meetings had been held previous to that date, but none have been " held since. " Q. Prior to the said 15th June where were the elections held to fill vacan- " cies occurring in the Board ? • • ; )/. " A. Members of the Board were appointed by the Synod, , i ,' 40 " Q. In what places wni the Synod held? ' '' '"' *' A. In different places throughout Upper and Lower Canada. " Q. Did the meetings alternate between Upper and Lower Canada ? " A. They did not alternate, the majority of meetings were held in Upper " Canada. " Q. The yacancies on the Board aa they occurred were filled at these "different meetings of Synod held at these different places, were they not? " A. These elections to fill viujancies on the Board were in virtue of the " terms of the Act of Incorporation of the Board, 22nd Victoria, 1858." 10 Synod powerless to efiFect Statute. I i The fund held and Rdministercd by the corporation, Respondents, had no fixed situs in either Upper or Lower Canada. The investments were in the dis- cretion of the Board, as was also its place of meeting. As the Synod nominated persons to fill vacancies occurring in the Board its meetings were geiierally ancil- lary to those of the Synod. The Synod itself was nomadic— meeting some- times in Upper Canada, sometimes in LovW^cr Canada, not statedly in either, but most frequently' in Upper Canada. Some confusion has been introduced in this case by the pretension of the Respondents — that the " Synod authorizi'd the union resulting in the Presbyter- ian Church in Canada," and the legislation that the Appellant attacks. In an- 10 swer it is sufficient to say — that the acts of the Synod relied on were in oppo.si- tion to the protests of Appelhint and others (Ajjpeal Book, p. 137 and pp. 69 and 70), and that in any ca.se the Synod had no powers iis regards the Board, Res- pondents, saving those specified in the Act itself. Even assuming that the Synod had the power that the Respondents cliiim for it, which is not admitted, it could only be rendered etl'ective on otjtaining appropriate legislative sanction. The functions of the Synod were ccclemasiical, not civil. Whatever its powers may be, they are ineffectual to vary an Act of Parliament, to create legislative com- petency where it does not exist, or to "discipline" an erring brother out of his " civil rights." 20 The Appellant relies upon the Act of Parliament consecrating the conditions upon which he renounced his personal right;i in order to create a perpetual en- dowment for his Church. Appellant challenges in this suit the action of a corporation, and of its mem- bers; the Respondents must rely for answer on the Acts of the Legislature that gave them the existence and authority that are impugned. From these considerations it is obvious : lo. That the intention of the founders of the Temporalities' Fund was to create a "permanent endowment upon certain fundamental conditions for thf maintenance and extension of religious ordinances in the Church" — in connection 30 with the Church of Scotland. (Appeal Book, page 102, line 21.) 2. That the Legislature in the fullest and most general terms enabled and empowered the Corporation to eflect these objects. IL — TilE CHARACTER AND POWER OF THE LEGISLATURE OF THE PROVINCE OF Canada. Appellant's The late Province of Canada was created by the Imperial Statute 3 & 4 Vic. second cap. 35, entitled " An Act to reunite the Provinces of Upper and Lower Cana<]a proposition, .j^j^j f^,, [\^^ government of Canada." Under the* provisions of this Act a legisla- tive union existed between the old Provinces of Upper and Lower Canada. The United Province became "one Province for the purposes of executive government 40 and legislation." The powers to legislate are described in broad and general terras : " Within the Province of Canada Her Majesty shall have power by and with " the advice and consent of the (said) .legislative Council and Assembly ' to make " laws for the peace, welfare and good government of the Province of Canada." (3 & 4 Vic. cap. 35, sec. 3.) 11 Section 8. " And be it I'lmcted that from and after the re-union of the said I'ower, of " (wo Provincen, there .wliall be within the Province of Canada one Legishitive Parli.Mncnt " OoiuH'il and one Assend)Iy, to be severally eonstituted and coniijosed in the " . „ ■' rniinner hereinafter prescribed, which shall bo ealleil 'The Legislativo Council (jan^da " and Assembly of Canada,' and that within the Province of Canada Iler Majesty "shall have power, by and with the advice and consent of the said Legislative "Council and Assembly, to make laws for the pi ace, welfare and good govern- " ment of ihe Province of Canada, such laws not being re[)ugnant to this Act, or " to such parts of the said Act passed in the thirty-first year of the reign of his 10 '' said late Majesty, su'J are not hereby repealed, or to any Act of Parliament made .- " or to be made, and not hereby repealed, which does or shall by express enact- '' ment or necessary intendment, extend to the Provinces of Upper and Lower " Canada, or to either of them, or to the Province of Canada ; and that all such " laws being passed by the said Legislative Council and Assembly, and assented " to by Her Majesty, or assented to in Her Majesty's name by the Governor of "the Province of Canada, shall be valid and binding to all intents and purposes " within the Province of Canaiia." (3 & 4 Vie. cap. 35, sec. 3.) Singularly enough the only restriction to Colonial legislation is a clause — (see section 42) — providing that any Bill passed in Canada " to \ .y or repeal 20 " any of the several provisions contained in the Act 31 Geo. 3 cap. 31, respecting "the allotment and appropriation of lands for the support of the Protestant clergy " within the Province of Canada," shall not be assented to by Her Majesty until 30 days after such Bill shall have been laid before both Houses of the Imperial Parliament, and shall not be assented to by Her Majesty in the event of objec- tion by either House of Parliament within such 30 days. Section 42. "And be it enacted that whenever any bill t)r bills shall be Rights of " passed by the Legislative Council and Assembly of the Province of Canada, Protestant "containing any provisions to vary or rc[)eal any of the provisions now in force, clergy con- " contained in an Act of the Parliament of Great Britain, passed in the fourteenth y^jgr „„;„„ ;50 " year of the reign of his late Majesty King George the Third, entitled ' An Act Act, 1840. " for making more ellectual provision foi- the government of the Province ofQue- " bee in North America,' or in the aforesaid Acts of Parliament passed in the " thirty-first year of the same reign, respecting the awustomed dues and rights of " the Clergy of the Church of Koine ; or to vary or repeal any of the several pro- " visions contained in the said last-mentioned Act respecting the allotment and " appropriation of lands for the support of the Protestant clergy within the Pro- " vince of Canada, or respecting the constituting, erecting or endowing of parson- " ages or rectories within the Province of Canada, or respecting the presentation " of incumbents or ministers of the same, or respecting the tenui'e on which such 40 " incumbents or ministers shall hold and enjoy the same ; and also that when- " ever any bill or bills shall l)e passed containing any provisions which shall in " any manner relate to or affect the enjoyment or exercise of any form or mode " of religious worship, or shall impose or create any [)eiialties, burdens, disabili- " ties, or disqualilications in respect of the same, or shall in any manner relate to "or affect the payment, recovery and enjoyment of any of the accustomed dues " or rights hereinbefore inentit)ned, or shall in any manner relate to the granting, " imposing or recovering of any other dues or stipends or emoluments to be paid f ffll Rights of clergy of Chuioh of Scotland conserved. 10 12 " to or for tho u.«ligious worsliip in respect of liis sniil olHee or finietion ; *' or shall in any maimer relate to or affect the CMtahlishinent or diseiplim^ of the *' United Cluireh of England and Ireland among the members thereof within the " said Province; or shall in any manner relate to or affect Her Majesty's prero- " gative touching the granting of wiiste lands of the Crown within the said Pro- " vince ; every siuih hill or bills shall previously to Her Majesty's jissent thereto *' be laid before both Houses of Piirliament of the United King«lom of Great Bri- " tain and Ireland ; and that it shall not be lawful tor Her ALijesty to signify •' her assent to any such hill or bills until thirty days after the satne shall have " been laid before the said Houses, or to assent to any such bill or bills in case " either House of Parliament shall, within the said thirty days, address Her Ma- " jesty to withhold Her assent from any such bill or bills, and that no such bill " shall be valid or effectual to any of the said purposes within the said Province "of Canada unless the Legislative Couneil and Assembly shall, in the Session in " which the same shall have been passed by them, have presented to the Gover- " nor of the said Province an address or addresses specifying that such bill or " bills contain provisions for some of the purposes hereinbefore specially described, *' and desiring that, in order to give effect to the same, such bill or bills may be " transmitted to England without delay for the purpose of its being laid before 20 " Parliament previously to the signification of Her Majesty's assent thereto." According to section 5G of the Union Act : " Payments to be made to the " Clergy of the United Church of England and Ireland and to " the Clergy of " the Church of /Scotland." . . . pursuant to any law or usage whereby such " payments before or at the time of passing this Act were or are legally or " usually paid out of the public or Crown revenue of either of the Provinces of " Upper and Lower Canada shall form the third charge u[)on the said Consolida- " ted Revenue Fund "— of Canada — the first charge being " expense of collection," and the second "interest of debt." The sections cited from the Union Act 1840 show that though the Parlia- 30 ment of Canada had plenary powers of legislation in all matters " for the peace, welfare and good government of Canada," — there was reserved (sec. 42) the protec- tion of Imperial supervision in regard to any Bill assuming to "vary or repeal" any of the provisions of the statute (31 Geo. 3, cap. 31, sec. 3G) making appropria- tions of land for the support of " a Protestant clergy" ; and the further guaran- tee (sec. 56) that the stipends of ministers of the churches of England and Ireland (for the payment of which the faith of the Crown was pledged) should form the third charge on the Consolidated Revenue Fund. Of the Acts passed by the late Province of Canada some were either expressly or by implication applicable to Lower Canada only, and some to Upper Canada 40 only. It is clear that the Act 22 Vic, cap. 6G was intended to apply to the whole Province of Canada. la III. -Powers of tiik Pahmament of Cvnada and of the Provinciai, Legis- latures IN (/ANADA UNDER Till) BRITISH NuRTli AMERICA ACT. The Pmviiioo of Ciuiuda was t>on. one Dominion under tho name of *' Canada." Nova Scotia and New Brtmswick powera of entered the Confederation aw sepan'te provinci-s. The '* Province of Canada," Dominion entered the Confederation as two provinces, under tin; names of Ontario and Purliunicut Quebec, in virtue of section 6 of the Confederation Act. and of the 10 '< The parts of the Province of Canada (as it exi>-ts at the passing of this " Act) which formerly constituted respectively the Provinces of Upper and Lower " Canada shall be deemed to l)e severed, and shall form two separate provinces. ** The part which formerly' constituted the Province of Upper Caiiada shall con- " stitute the Province of Ontario ; and the part wiiich formerly constituted the " Province of Lower Canada shall constitute the Province of Quebec." The distribution of legislative powers in Canada and in the Provinces are regulated by sections 91 to 95 of the British North America Act, 1807; 37 Vic. cap. 3. m; I- venue for provincial, local or municipal purposes. 15 10. Tiocul works and iiiidertukingH, cilher than such as arc of the following clasHes : a. Lines of stoani or other ships, rnilways, canals, telegraphs, and other works and nndcrtakings connecting the province with any other or others of the provinces or extending beyond the limits of the Prov- inces. fj. Lines of steamships between the Province and any British or Foreign country. c. Such works as, although wholly situate within the province, are before 10 or after their execution declared by the parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces. IL The incoriKjration of companies with provincial objects. 12. The solemnization of marriage in the province. 13. Property and civil rights in the province. 14. The administration of justice in the province, including the cotistitution, organization nnd maintenance of provincial courts both of civil and criminal jurisdiction, and including procedure in civil matters in those courts. 20 16. The imposition of panishment by fine, penalty, or imprisonment for en- forcing any law of the province made in relati(m to any matter coming within any of the classes of subjects enumerated in this section. 16. Generally all matters of a merely local or private nature in the province. The Parliament of Canada in the most comprehensive terms is empowered " to miike laws for the peace, order and good government of Canada." Then a number of examples of the " exclusive legislative authority of the Parliament of Canada" are given. These special examples are given not to limit the powers of the federal legislature but " for greater certainty, but not so as to restrict the generality of the foregoing terms of this section." 30 Upon these sections Lord Selborne (the present Lord Chancellor) delivered Lord the judgment of Her Majesty's Judicial Committee in the case of The Union St. Selbome's Jacques de Montreal vs. Belisle, 8th July, 1874. He said : °P™«°- " The scheme of the 91st and 92nd sections is this. By the 91st section " some matters — and their Lordships may do well to assume for the argument's "sake that they are all matters except those afterwards dealt with b}- the 92nd " section — their Lordships do not decide it, but for the argument's sake they " will assume it ; certain matters being, upon that assumption, all those which '* are not mentioned in the 92n(i section, are reserved for the exclusive legisla- '* tion of the Parliament of Canada, called the Dominion Parliament: butbe^'ond 40 "controversy there are certain other matters not only not reserved for the Do- " minion Parliiiment but aasigued to the exclusive power and competency of the "Provincial Leir'slature in each Province. Among those the last is thus ex- " pressed : 'Or . ,i ' all matters of a merely loctil or private nature in the " Province.' " (L'Union St. Jacques de Montreal oa. Belisle. VI. Law Reports, Privy Council Appeal Cases, p. 36.) ii .1? Sir James W. Colville's opinion. Chief Justice Harrison's opinion. I. v.. The three sections relied on by Respondents Later— on the 5tli of MiU'ch, 1875- -![ur Majosty'a Jtulicial Coinrnittue ren- derod judginent in the uaso ol" Dow (',. iJhick. In this case tlie Privy Coiuicil Ibrnuilly dechired that "all matters"— as Lord Selborne said in tlie case of L'Union St. Jacques vs. Belisle — " their Lordships would ao well to assume" — " not mentioned in the 92nd section are reserved for the exclusive legislation of " the Parliament of Canada called the Dominion Parliament." Sir James W. Colvillciu delivering the judgment of Her Majesty's Judicial Committee, said : / "Sections 91 and DUqMirport to make a distribution of legislative powers "between the Parliament of Canada und the Provincial Legislatures, section 91 10 "giving a general power of legislation to the Parliament of Canada, subject only " to the exception of such mattt^rs as by section 92 were made the subjects upon " which the Provincial Legislatures were exclusively to legislate." (VL Law Reports, Privy Council Appeals, p. 280.) It will be observed that the powers conferred in general terms upon the Parliament of Canada by the British North America AvX 1867 — 33 Vie. cap. 3, 860. 91 — " to make laws for the peace, ordei- and good j^overnment of Canada," are expressed in almost precisely the same phraseology as those conferred upon the Parliament of the old Province of Canada by the Union Act (3 and 4 Vic. cap. 35, sec. 3) : " to make laws for the peace, loeJfare and good government of 20 the Province of Canada." The authority is the same in each, saving only that certain " classes of sub- jects" arc, " by this Confederation Act exclusively assigned to the Legislatures of the Provinces." These "classes" constitute the exception mentioned by Sir James W. Colvillj in the case of Dow and Black cited above. A high authority — the late Chief-Justice Harrison, of Ontjirio — said : " The great distinction between sec. 91 and sec. 92 is, that while in the " former the subjects enumerated are only designed as examples of exclusive " legislative powers, in the latter the exclusive legislative powers appear to be " all oumierated." Parsons vs. the Citizen's Insurance Co., 43 Upper Canada ;]0 Queen's Bench Rep., p. 261. The criterion of Dominion power is found in the general authorization " to make laws for the peace, order ami good govennnent of Canada " : the criterion of provincial power is found in the general authorization to higislate exclusively in " all matters of •■* merely local or private luiture in the province." The decisions in the Privy Council in the cases of L'Union St. Jaccjues de Montreal and Belisle and also in Dow and Black above cited, were arrived at by the application of these .standards. Among the classes of subjects exclusively assigned to the provincial legisla- tures are : ,. ■<> n 40 No. II. The Incorporation of Companies with provincial objects. ,, , - No. 13. Pro[ierty and Civil rights in the Province. No. 16. Generally all matters of a merely local or private nature in the Province. It is aigued by lie.spondents that the iVcts impujrned by the Appellants fall within the category of sub-sections 11, 13, and 16 of section 92. 17 IV. — The Acts impugned uy Aitellant's action. A 1)1)0 1 hints' action directly attacks the Act of the Logisliitiire of Qiicbic Appellant's 38 Vic, cap. 64. which assiinu's to anicnd the Act 22 Vic. cap. GO, incorporating fourth the Board H.'spondcnts ; and indirectly clanse 11 of the vVct'nS Vic, cap. 52, of l'™»'""^'""- Quebec. Upon the issue on these points also de[)('nds the constitutionality oi" thu ti,,, ^^jf. corresponding clause 8 in the Act 38 Vic, cap. 75, of Ontario. impugned. Though the Act of the old Province of Canada had sway over the entire Province of old Caii.ida, it is noteworthy that the only Act si)ecially passed to amend it wjis enacted in the Province of Quebec. No similar Act Wius passed in 10 the Province of Ontario. There were, however two other Acts passed about the same time, one in the Province of Quebec 38 Vic cap. 62, entitled : " An Act respecting the union of certain Presbyterian churches therein named " ; and one in the Province of On- tario, 38 Vic. cai- /5, under the same title. The contents of these Acts have been succinctly e|)itomi'/,ed by Mr. Justice Ramsay (Api)eal Book, pp. 452-454). and as Mr. Justice Ramsay's exposition of the facts that gave rise to the ccntestation has been approved by Chief Justice Dorion, it is convenient to make an extract from them : " This Act (22 Vic. caj). 66) being still in force, in 1874 numerous clergymen Judge Ram- 20 " and others, members of different Presbyterian Churches in Canada, deemed it .say's view of *' desirable to unite their ecclesiastical fortunes and henceforward to form one body, |. ''?°^ ' "" " to be called ' The Presbyterian Church in Canada.' Nothing could l)e more lawful tj^n'^ " or more praiseworthy than the attempt to sink minor difl'erences of opinion in "order to attain greater efficiency, but we have not to decide as to motives and " intentions. Our duty is deliberately and coldly to decide a question of law. " Application was made almost simultaneously to the Legislatin-es of Ontario and " Quebec for authority to give effect to this determination, and to ena,l)le the new " body to deal with the property of tiie (jhurches so united. An Act of the Cn- " tario Legislature (38 Vic, cap. 75) was passed, the preamble of which sets up •JO " that :— " ' Whereas the Craiada Presbyterian Church, the Presbyterian Church of " Canada in connection with the (Jlau'ch of Scotland, the Church of the Maritime •' Provinces in connection with the Church of ScoUand, and the Presbyterian Church " of the Lower Provinces, have severally agreed to unite together and form one " body or denomination of Christians, under the name of ' The Presbyterian Church " in Canada;' and the moderators of the General A.s.sombly of the Canada Presby- " terian Church, and of the Synods of the Presbyterian Church of Canada in con- " nection with the Church of Scotland, and the Church of the Marifim(! Provinces "in connection with the Chiu'ch of Sc^otland, and thi Presbyterian Church of the 40 " Lower Provinces, respectively, by and with the consent of the said General Aa- '* send)ly and Synods, have l)y their petitions, stating such agreement to lutite as " aforesiiid, i)rayed that for the fiu'therance of this their pur[)ose, and to remove " any obstructions to such union which may arise out of the present form and des- " ignation of the .several Trusts or /icts of incorporation by which the property of " the said Churches, and of the colleges and congregations conrtectcd with the said " Churches, or any of them respectively, are held and administered or othcrwi.se, W :":''r-^l K ■»; 't 18 "certain legislative provisions may be imvdft in reference to the property of the " said churches, colleges and congreii^ntioii^j siluiate within the Province of Ontario " and other n)atters afl'ecting the same in view of the .sdid unio)i.' " " The first section then vests all the property of the difierent Churches so " united in the united body under the name of 'The Presbyterian Church in " Canada.' Then come reservations and modifications of certain rights, and then " by section 4 certain legislation in Ontario respecting the property of religious in- " stitutions is made applicable to the various congregations in Ontario in commun- " ion with the Presbyterian Church in Canada. Section 5 declares that all the " property, real and personal, belonging to or hebl in trust for the use of any college 10 "or educational orotlu-r institution, or for any trust in connection with any of the *' said Churches or religious botlies, either generally or for any special purpose or " object, shall, from tiie time the said contemplated union takes place, and thence- " forth, belong to and be held in trust for and to the use, in like manner, of "The " Presbyterian Church in Canada." Section 7 then deals specially with Knox "College and Queen's College, situate in Ontario, and with "The Presbyterian " College" and with " Morrin (college," situate in the Province of Quebec. Section " 8 deals with the Temi)oralities B'und of the Presbyterian Church of Canada in "connection with the Church of Scotland, " administered by a Board incorporated " by statute of the heretofore Province of Canada." Section 9 deals with the 20 " Widows' and Orphan.s' Fund of " The Canada Presijy terian Church " and " The " Pre-sbyterian Church of Canada in connection with the Church of Scotland." "Section 10 authorizes the new body to take gilts, devises and be<(uests; and " lastly, section 11 declares that "the union of the said churches shall be held to " take place so soon as the articles of the said union shall have been signed by the " moderators of tbe said res[)ective Churches." " The legislation in the Province of Quebec took the form of two Acts, 38 Vic. " cap. 62 and 04, the former respecting the union of certain Presbyterian Churches ; " the latter is styled " An Act to amend the Act intituled ' An Act to incorporate " the Board of Management of theTemi)oralities Fund of the Presbyterian Church 30 "of Canada in connection with the Clun'ch of Scotland.' " "Cap.()2 of the 38 Vic, Quebec, with the exception of the section relating to " the Tem^MU-alities Fund, is substantially the same as the Ontario Act 38 Vic. " cap 74. One or two difl'crences it may, liressly confers upon the Appellant "civil right " of admii istration of the fund: the three provincial Acts take awiiy this " civil right." He is rendered ineligible for election. The franchise and qualiliciition for nuinbership of the Board Respondertu established in Appellant's favour by the Statute 22 Vic. cap. 66, sec. 2, is not and , ■ , has not a civil right, restricted by provincial bounds : it is a right tbit apper- tained to him in all parts of the old Province of Canada. It was not a '* civil right," restricted to a province— it was general, and. Appellant submits, could not be affected by provincial legislation. What was the object of the Act 38 Vic. cap. 64? It does not ask for the 20 Incorporation of a Company " with provincial objects." It seeks to amend or rather to destroy an Act with powers and objects extending over two Provinces. The preamble of one of the Union Acts has already been cited in the extract from Mr. Justice Ramsay's Remarks. Here is the preamble of the Act 38 Vic. cap. 64 : " Wheresis by petition it hath been represented that the Synods of the Pres- " byterian Church of Canada in connection with the Church of Scotland, of the " Presbyterian Church of the Lower Provinces and the General Assembly of the " Canada Presbyterian Church have agreed to unite together and to form one , " body or denomination of Christians umler the name of " the Presbyterian 30 " Church in Canada " and that tht> " Act to incorporate the Board tor the man- " agenient of the Temporalities Fund of the Presbyterian Church of Canada in " connection with the Church of Scotland " and amendment thereto require to be " amcvded loitlt a view to such union, and in order to carrying into effect of certsiin "resolutions i)as&ed by the Synod of the Presbyterian CI. arch of Canada in con- " nection with the Church of Scotlan''yterians residing in the lour Provinces of the confederation. Th_ ecclesiasticid union had no doubt been suggested and stinudated by the success of llic political union of tlie Provinces of Canada, Nova Scotia and New Brunswick. The delegates from these four Church denomina- tions, whose operations were collecfivt-ly co-e.\tensive with the territory of tho Dominion, wished to unite their "ecclesiastical fortunes." The most ordinary ibrc.iight would have suggested that they should apply to the Dominion Parlia- ment for an Act nuthorizing their u)iion ;.nd with it the right to hold and ad- minister property belonging to the '' United Church." The course here suggested 10 was precisely that adopted b}' the Ba[)tists, who in 1880 applied to and ol tained from the Dominion Parliament " An Act to incorporate the Baptist Union of Canada"— 43 Vic. cap. 76. Section 2 declares that : " The objects of said union are to unite in itself, as " far as priicticable, the whole Baptlut body of Canada in the promotion of mia- *' sions, literature, superannuated ministers' aid nnd Church euifice funds, &c." Section 4 of the Baptist Union Act confers upon the Unicm power to " ac- " quire, hold, administer and dispose of property." These objects and powers are very similar to tho.se of the Act 22 Vic. cap. GG The high contracting Presbyterian bodies adopted a difterent course. Theii r 20 Special objects of impugned Acts. the Presbyterian Church P!| objict was not so nnich legislative sanction to union ... the possession of property. The Presbyterian Church of Canada in connection with the Church of Scot- land was richly endowed by private nuniilioence, congregational liberality, and tlie bounty of the Crown. The uniting bodies desired three things. lo. A legislative recognition of the '• United Church " — the " Presbyterian Church in Canada" — not necessarily an Jict of incorporation, for that they could not ask for from Legislatures having powers restricted to incorporating Com- panies with provincial objects only : but still such a recognition as wouhJ practi- cally amount to incorporation. 30 2o. The right to take and hold property in future. 3o. The right to confiscate the rich endowments of of Canada in connection with the Church of Scotland. So completely was this last object kept in view that in addition to the special amendment that is now attacked, the Jlankiny clauses were inserted in the two provincial union acts. Apart from the decision in this there have been no decisions in Canada upon the constitution}, lity of the Act 38 Vic. cap. G4. There is a decision in Ontario whi(^h was cited a the Court of Queen's Bench — Cowan vs. Wright— 23 Grant's Chancery Reports, Upper Canada, p. G23 — in which Vice-Chancel lor Blake holds, 40 in an action between the adherents of the new Church and those of the Presby- terian Church of Canatia in connection with the Church of Scotland, as to the right to the Church edifice, which Inid been previously owned by the congrega- tion, and which was not a Church "created" by the corporation Respondents — that the Att 38 Vic. ca[). 75, in so far as the matter in controversy wtis con- cerned, wan constitutional. .„ 20 30 40 2a Much nnil forcihlo reasoning may b(! adduced that the property of individual congregations in tlie .several provinces is subject to provincial legislation : such was the istnie in the cnwe decided by Vifi'-Cliancellor Bl.vke ; but this question is widely divergent I'roin the issues raised \|U;itl i.oin.fl, conf^enncntly cannoil, he constnied UH civil rights i^i the sonsc of heiu,",^ Oj.itilrio or Qiiohcc rightt^, hut niUHt he rofranlcd '.\» civil rights extending throughout the whole Province' of Cau:ida. The Chiel' .]u«tic(! v)l" the Court (/!' Qui-en's IJeneh (apijriil .sid.-; of Lower Canadn, in renderirg his judgment in thi;i cii.'-e, .srjd (A-ppeal IJook, page 345); ''An Act iucorponitiiig a religions hody tor the purpose ot" iicquiring property and ol" man- aging it for the sup[)ort of their ministers, and for educating young men to he ministri's is muloahtedlif an Art confer rhcij civil ritjhlH hy giving to the hody so incorp "ated a civil status which it had not hefore." That is precisely the con- tention of till' Appellant in this case, and the civil rights conferred upon the 10 Corporation Respondent, under the Act 22 Vic. cap. (iO, extend, hy the express terms of tinit Act, not to the Provinces of Quehec and Ontario severally, hut to them collectivelij, that is, to the entire Province of Canada. Starting from this point, the first cpiestion that it is important to have f'"'^-.rly established is: "lias the Legislature of Quehec power to amend the Act 22 Vic. cap. 66?" To support the affirmative of this proposition, the Respondents rely upon 11, 13 and 16 sub-sections of sectitm 72 of the British North America Act of 1867. Sub-section eleven rcdates to '• the incorporation of eom[);inies <«/^//. ^)ro- vinciul ohjectd" • 13 relates to " property and civil rights in (he Province,'' and 20 16 '-'generally to matters of a merely local mid |)rivate nature in the Province." The learned Chief Jiistici; Dorion entir^dy ba.ses his judgment upon the authority conferred by theses sub-sections upon the local Legislature. lie says : " After the most careful consideration I have been able to give to this im- " portant case, 1 have come to the conclusion that the Act 38 Vict. chap. 64, to "amend the Act intituled ''An Act to incorporate the Board of Management of " the Temporalities Fund of the Presbyterian (!huich of Canada in connection " with the Church of Scotland," is an Act affecting the atdtdn, the property and " the civil rights of the cor[)oration, within the Province of Quebec, and that "under sub-section.s 11, 13 and 16 of section 92 of British North America Act 3(1 "of 1867, these were within the scope of the legislative authority conferred on "the Local Legislature of that Province." — (Appeal Book, p. 449.) With regard to sub-.section 11 — the incorporation of companies with provin- - cial objects — it is submitted that the terms of the sub-section clearly indicate that the right of incorporation of companies in the province is restricted to the incor- poration of companies " h;aV/i ^>/'otfw." (43 Upper Canada Queen's Bench Reports, page 261). in which he says : " The exclusive power for the in- " corporation of companies with otl^er than provincial objects, is not, in express 26 " laiignajije, coiiCerrcd '.i|)()!i either legisliitive body, but it impliedly remains with '' the Domiiiiuu Piirli iiaent.' Mr. Justice (r.vynne ui' the Canada Supreme Court (4 Supreme Court Ue- Mr. Justice jrtH, puge iVdi) says : '* F -oui the IVaiue ol" item No. 11 it is plain that what was Owynne's ■i 111 . .1 I'd,. ,..1 .*f|..l ..I 1.1. HIT '' 110 powers beyond their res[)rctive [)rovi;xes to '.;;)m[)iuiies incorporated by them " these words ' for i)i()vinci:il obji'cts ' are superlluous, and have no sense unles: 10 " they be read as words ol" limitation, having a restricted operation ; it won" *' have been sullicient to have s.iid simply ' tin- incorporation of companies ' ; b poi.., ^..-o- , ...^. . - „. ^ "intended l)y anncNint: the tiualificfitlon 'with i^rovincial i)bjects ' was not the ^''-"^ "power of incori)orating oompanies for all |)urp()ses, but a limited power ; for in- asmuch aa, wholly irrespe(;ti o of these \\ords the hx-al legislatures coiilil give > ss Id i.,^ ^^y... ,,....,v..v...v vw .....v, ...1.^ .^...n,.j vw. .wv-v^.'poration ot companies ; but for greater certainty ' — a principle whicii pervades the Act — these W(irds ' with " provinciiil obji'cts' were introiiiiced toconline the [K)wer to tiiese pui poses which "are specially i)laced under the control of the local legislatures in express terms, " so as to leave nothing to be implied ci inferred." In fact, tile Dominion legislature at every session incorporates companius with general objects. The Act to incor[)orate the liaplist Uiiioi;, above referred to, conferring powers analogous to those conferred upon the corporation Respon- dents by the Act 212 Vic. cap. 00, is exactly in point. It is clear that if the pro- 20 vincial legislature cannot incorporate companies, saving only those with provin- cial objects, it cannot amend or repeal Acts that have objects of a general character and that are not restricted to provincial objects. Nor can the Respondents rely for the constitutionality of the Act im[)Ugncd Merely local upon sub-section 16 of section U2, which assigns to the provincial legislature or private "generally all matters of a merely local or private nature in the province." The ""*"*'''■«'." subject matters of the Act 22 Vic. cap. 00, cannot be regarded as of "a merely local or private nature in the Province " of Quebec. The contents of the Act clearly show that they have application to the entire old Province of Canada and the entire new Provinces of Ontario and Quebec within the Dominion of Canada. 30 In no sense, therefore, can the subject matter of t'ae Act 22 Vic. cap. GO be re- garded as matter of a merely local or private nature in the province. The use of the words " matters of a merely local and private nature in the province," clearly indicate matters entirely of provincial coucoru and not having referoice to extra-provincial objects. If the words " local and private," qualifying the word " nature," do not sulHciently indicate the scope of provincial power, the prelix " merely " dissipates every pretension for an enlarged constitution, and comprises the interpretation here suggested. It cannot be conceived that, by any possible construction, the words " matters of a merely local or private nature in the province " can be enlarged so as to have reference to subjects that are not •10 local, not private, but which have reference to property and civil rights, extend- ing beyond the province and to another province. If the subject of an Act be merely a local or private matter within the province, it clearly comes within the competency of the Provincial legislature ; if it be not a merely local or private matter within the province^ and does not come within any of the classes of sub- jects exclusively assigned to the local legislature, it clearly falls under the do- main of Dominion legislative authority. The decisions in the cases of" L'Union Property and civil rij;ht8 in Province, Judge Jcttd's opinion. 2G St. Jacques do Montreal vs. Belisle " (6 Law Report.M, Appeal CiiHeH Privy Couii- .cil, page 31), ami Dow vfi. Black (6 Law HejJortH, A|)peal Oases Privy Council, page 27'2), expressly recognise the criticism here uuule with regard to Hid)-seclion 16. These cases will receive fuller examination in connection with the discus- sion of sub-section IJ] as to "property and civil rights in the province." Nor can the pretensions of the Respondents be sustained under the sub- section 13 of section 92, which confers upon the provincial legislatiu'es the right to legislate upon matters relating " to property and civil rights in the province." As a matter of fact the Respondents have mainly relied U[)on this sub- section for the maintenance of their views, and the judgment in the Court below, 10 rendered by the Hon. Mr. Justice Jett6, is based entirely on this sub-section. The following extract taken from the judgment of the learned judge, fully expresses his views : " Section 02. " In each Province the legislature may exclusively make " laws in relation to matters coming within the classe.s of subjects next herein- " after enumerated; that is to say ; 11th. The incorporation of companies with " Provincial objects. 13th. Property and civil rights in the Province." " Proyerty ami civil rights arc thus, in virtue of this disposition, of our present " constitution, submitted to the exclusive control of the Provincial Leyishdures. " Noiv, what ivas the object of the corporation created by the Statute 22, Victoria, 20 " cap. 60 ? Nothiny else than the oivnership and the possession of certain p roper ti/ ; " that is to say, that the Legislature of United Canada has accorded, by this Act, " those rights which are included specially in the category of subjects exclusively " entrusted at the present time to the Provincial Legislatures. It is true that " under the former reyime the two Provinces, being subject to a Legislative union, " these same rights were under the control of the Legislature of the Union, and " consequently the privileges accorded in this respect to corporations created by " this Parliament extended (except when specially restricted) to all the territory " subject to its jurisdiction. But the extent of this territory, whether more or less, " does not chanye anythiny in the nature itself of these riyhts; and sines these 30 " riyhts are now entrusted to the Provincial Parliament, can it be jfi'etended that it " has neither the riyht nor the power to leyislate in a manner to ajfect them ? " Certainly not. The chanye in our political system cannot have had the effect of " render itiy perpetual what has been, done in the past ! It is to be assumed rather that " property and civil riyhts then already in existence, and haviiiy been established in " the 2)ast, as well as jyroperty and civil riyhts to be established for the future, are ^' made subject to the jurisdi:itio7i of the Provincial Leyislatures. It must be ad- " niitted, therefore that the changes which the Parliament of United Canada " could have made, and no one will deny that it had the absolute right to make " in the Act of Incorporation of the " Temporalities Fund," the Legislature of the 40 " Province of Quebec can make with the same authoritv and the same effect " within the limit of the territory attributed to its jurisdiction. But, says the " Petitioner, it is exactly this restriction as to territory which savi-s my rights: " not having a domicile in this Province, I am not subject to the control of " this Legislature and therefore my rights cannot be affected by this legislation. " This objection is not serious. The constitution, in subjecting property and " civil rights to the control of the Provincial Legislatures, did not make and 27 " couM not mnko a diHtiiictioii butweoii the powcHHorH of thcHo riglitn; it Ims not " liniit(!(l tlio legislative aiitlioiity to tlie cano where the property heh)nge(l to a '* reHident only ! No, <(ll ritjhts of pnqicrlij, wluither poHNeHned hi/ a resUloU or a " ne»t estah- " linhcd princiidcH of the clod law and of the puhlic law. Therefore, either the *' rights which the Petitioner claims exint in the Province or they do not. 11" they " do not, what can ho week I'roin this Court? If they do, they only exist as re- " cognized by the laws passed or maintained hy our Legislature. Now, I lind 10 " that this Legislaturi! has changed the disposition of the property, from whence " liow the rights of the Petitioner, in two important res[)ectrt; 1st, as to the ad- " ministration ; 2n(l, as to the final disposition of the fiuid constituting this prop- *' erty. Firstly, as to the administration, the Statute 38 Victoria, ciip. 04, of which *' the annulling is sought, completely justifies the action of the Corporation, Res- " pondents, and of the members composing it. Secondly, as to the final disposi- " tion of the Temi;oralitios F'und the Statute 38 Victoria, ciip. 02, which is not " attacked, while securing to the present ministers their annual incomes intact, " transfers finally the property of this fund to the United Church under the " name of the Presbyterian Church in (Janada. 20 " Now, it appears to me incontestable, accordiny to the provisions of our Con- " atitational Act, that these two Acts, in so far as they affect civil riyhts and rights " of property (aiul there are none otiier in (piestion before this Court), ujere within " the authority and jurisdiction, of our Provincial Legislature, and therefore that " they irrevocably settle the rights of tlte parties. In the face of this legislation, " it is impossible for me to declare that the Respondents have acted illegally and '* without right in the administration of the fund entrusted to them ; that these same Respondents are not legally members of the said corponition, Re8[X)ndents, " and that the " Temporalities Fund " does not belong to the Church, to which *' the law attributes it, and that it cannot be applied in the manner provided by 30 " that law ".—(Appeal Book, pp. 39G and 397). The views of the Honorable Judge who rendered judgment in the Superior Court are given at length, in order that they may not be subjected to partial criticism. It is perfectly obvious, from a perusal of them, and in fact from the direct statements made in them, and which the Appellant htis taken the liberty to italicise, that the Honorable Judge considers that under our constitution all pro- perty t\,nOi all civil rights lire subject to the jurisdiction of tho provincial Legislature. " Any other interpretation of our constitution," .says Mr. Justice Jette, " would be contrary to the best estiiblished principles of civil law and of public law." The misfortune of this view is that it is at direct variance with holdings of 40 the Judges of the Supreme Court of Canada and of Her Majesty's Judicial Coui- mittee. It will appear, also, from an examination of the remarks of the Hon. Chief Justice of the Queen's Bench (appeal side) that his opinions are not free from the infirmity indicated as existing in the opinions of Mr. Justice Jetto. " The Chief " British North America Act was passed for the very purpose of allowing each Justice " Province to regulate its own internal affairs, including civil rights, the incor- ^°"°°^ " poration of companies for provincial objects, without interference on the part m 28 If HI JuJge Ramsay's opinion of the constitu " of rcprosontiitivcH of other pi'ovInceH tlu'ongh tliu Dominion Parlinnieiit." — (Opinion of (Jhief JiiHtici' Dorion, AppcNil Book, pniit' IKi, liniM 1)-1.'5.) If the k'lU'iU'tl (JhicI" Justin- niciuiH to icstiict this proposition within thi' limits of Huh-si'ctiuns 11, IH luiil 1»», the Appfliant am rciidily nsscnt to it, for in tlu'W HcetioiiH tho woi.Ih "in tho provinic^" (piiililyiii}; the words '* pntpcrty iind civil rights," the words "with provincial objects" (|iialifying the words " tlie in- corporation of companies," the words "of a mer.ly local or private nature in the province" (pialifying " all nuittera" — explicitly limit the domain of provincial authority. Hut thv' proposition of the lion. Chief .lustico is stateil in a more general form, and gives the impression that h»' inclineH to the vincial legislation. Fortunately for the Api»ellant, all doubts is the views of the learned Chief Justice on this subje(;t are dissipated l)y his express declaration (Appeal Hook, page 448, lines 1-U) : " We have seen that the authority to pass laws relating to "civil rights is vested in the local legislature." It is upon this iussumption that the learned Chief Justice bases his oj)inion that the provincial legislature alone, under section 129 of the (confederation Act, has tlu; power to repeal, alnilish or alter the Act 22 Vic. cap. (i(j. The Api)ellant submits that there is a fundamental error in the opinions of the lion. Chief Justice of the Coiu't of Queen's Heiich, and Mr. Justice Jette, in assuming that " property 'vnd civil rights" are ex- 20 clusively the subject of |)rovincial legislatii-'n. The qualifying words " in the province" appended to the words "property and civil rights" in sub-section 13 of Bection U2 suihciently indicate that the property and civil rights therein referred to were such as had reference to provincial matters only, and that other property and civil rights fall within the domain of the Dominion Parliament. Judge Ramsay's views are ex[iressed with great force of reasoning : " The Hesi)ondents, relying on sub-section 13 of section U2 B. N. A. Act, " which gives legislative power to the Provincial Legislatures over ' property ami "civil rights iu the Province,' contend that, having full control overall pr-jpeity, tioual (luus- " '^^"' Iji'gislature of Quebec has ful' power to deal with all i)roi)erty which may 30 tion. " exist in the Province of Quebec, and consecpiently that it has the power to " confiscate the funds of the Presbyterian body situate in the Province of Que- " bee, and present them to some one else, and that this has been done. On the •' other hand. Appellant contends that the Local Legislature has no right to in- *' corporate any companies but those having provincial f bjecta (lb. sub-section " 11) ; that this is tantamount to saying that the right tt) incor[K)rate companies " with other than local objects i.s exclusively reserved to the Dominion Parliament " (Sect. 91, B. N. A. Act) • that the Board of management was an incorporation " for other than provincial objects, and therefore that it could not have been "created a corporate boily by a local Act, and consequently that its act of incor- -0 " poration cannot be altered or amended by any local legislature. "I must confess that the sections upon which the contending parties rely " appear to me to be irreconcileable by themselves. If the local power to legislate "over property and civil rights in the Province is to be interpreted to mean over " ' all ' property, &c., then the [)ower of Parliament to incor[)orate is illusory. In " practice it never has been contended that pi^operty means all property. Kail- " way companies incorporated by Parliament, for instance, hold and manage their 10 20 30 40 29 property niidfr Doiniii. ,i\ lawn, luid Hiich coinpanlt'H evirt people from tlieir [(rivjitf property in each province under Dominion laws. No one will venture to allirm that a local Act eoidd confiscate the [)roperty of a railway 'joni|)any incorporated l»y Parliament, or tmnHfor it to another company or person. And «o it has heen diciiied in tht! case of IJourgoin and The Q., M ,(). & (). Railway Co. by the I'rivy Council (.'ird licgal News, [). 185) that a railway with all its appurtenances, and all the property, liabilities, rights and powers of the exist- ing compiiny, could not be conveyed to the Quebec Government, and, through it, It) a com|);iny with a new title and a dillerent organization, without legisla- tive authority, and that if the lailway was a Federal railway, the Act author- izing the transfer must be an Act of the Parliament of Canada. Nor, by parity of reasoning, could the Local Legislature conliscate the surplus funds of a bank on the pretext that it was [jropcrty in the Province. It is impossiljle to conceive more obvious limitations to the right to legislate as to property than these. Again, we have had two decisions limiting the sub-section in question. In the case of Evans v. Iludon, and Browne, T.kJ., Mr. Justice Raiuville held that a local Act was unconstitutional wh'ch authorized the seizure by process of law of the salaries of federal olficers, 22 L. C. J., p. 268 ; and the Court of Appeal in Ontario, in the case of Leprohon & The Corporation of Ottawa, 2 Tupper, p. 522, held, reversing the judgment of the Queen's IJench, 40 U. C. R. 478, that under the B. N. A. Act, 1807, a provincial legislature has no power to impose a tax upon the olHcial inconie of an officer of the Dominion Government, or to confer such a power on the municipalities. These decisions can only be sus- tained on the ground that property in the sub-section in question does not in- clude such property and civil rights as are necessary to th« existence of a Dominion object, to copy the phnuscology of the B. N. A Act, It may, per- haps, be said that sec. Ol, s. s. 8, B. N. A. Act, specially gives to the Federal Parliament the power of fixing the salaries ; but this does not seem to me to ulTect the question. After the salary has been fixed and is [wssessed by the individual, it becomes property in the province. We are, therefore, obliged to sustain the judgment on some other general principle which limits the effect of s. s. 13, sec. 92 B. N. A. Act. " On the other hand we have a decision of Vice-Ghancellor Blake, in the co.se * of Cowan & Wright, 23 Grant, Ch. Rep., p. 61G, upholding the constitutionality * of the Ontario Act (38 Vic. cap. 75) except in so far as it attempted to deal with ' property in the Province of Quebec. This is, of course, a decision of the precise * point before us, and therefore it becomes important to examine the grounds upon * which it was rendered. It appears to me that it is undeniable that the locjil * legislature, acting within the scope of its powers, hsis a right to legislate as abso- ' lute as the Dominion Parliament legislating within the scope of its powers. * Indeed, this doctrine as to the respective powers of the Dominion and Local ' Legislatures seems to me to be almost the only one on which there has been ' entire unanimity of opinion. But when from this it is sought to glide to the ' conclusion that the words of section 92 are alone to be considered as defining ' the exclusive rights of the Local Legislatures, I think we arrive at a doctrine ' opposed to positive law, and to the authority not only of the Courts, but to the * authority of practice. *H) o " There is a sort of lloaUiig notion that by the conjoint action of dilTerent " U'giHlutures, the ineapacily of a local legislature to pas.s an Act may be in some wSuor'^'' " •'^ "■*' ^^'-'^t^'"^^^'*'- I^e^tiun 15 of the 38 Vic. cap. 02 (Que! ,, .^e(•nlH to have been Conjoint action of avail. "added under the inlluence of such an idea. By it ihe Dominion and local legis- *' latures nre permitted to recognize and approve. I cannot lUKh'rstand anything " more clear than this, that the local legislatures, by corresponding legislation can- " not in any degree enlarge the scope of their poN^ers. Wlien the ([uestion is bo- " tween the authority of Pai'liament and that of a local legislature, the forbearing " to legislate in a particular direction by Parliament nniy leave the held of local " legislation more unlimited. This is the only bearing I can conceive the case of 10 " the Union St. Jac(iues & Belisle, can have on tliis case. What the Privy " Council held in that case was that a special Act for the relief of a corporate body " did not fall within the meaning of ' Baidiruptcy and Insolvency ' (B. N. A. Act. '•sect. 91, s. s. 21) and this more particularly as there was no Dominion Act with " which it interfered. It is, therelbre, dead against the pretensions of Respondents " in this case, for the legislation objected to U[)sets a Dominion Act, that is tx) say, *' if corporations which have not alone provincial objects (provincial according to " the meaning of the B. N. A. Act, i. e , relating to one Province under the Act) " created before Confederation, are under Dominion Laws. On this point there " hat) never been a doubt. For instance, the Acts of incori)oration of the G. T. 20 " Railway, an old Province of Canada incorporation, have been amended by " Dominion Acts, never by local ones. " Anotber authority in support of the constitutionality of the Ontario Act has " been mentioned by Mr. Todd in iiis very valuable volume on •' Parliamentary " Government in the British Colonies," (p. 355). This is, of course, an authority *' not to be despised, and if it had Ijeen given free from all bias by political con- " siderations I should have considered it a very valuable opinion. But, witbout " meaning to imply any sort of criticism as to the exercise of the discretion of the " Federal Goverinnent in the disallowance of bills, I may say that we all know *' that the Federal Government is most unwilling to intevfere in a too trenchant :!<• " manner with local legislation, and wheie there is room ibr doidjt as to the limits '' of the powers exercised, and where great po[)idar iiicerests are involved, they " readily leave the question to the decision of tlie Courts. The report referred to "• by Mr. Todd, therefore, amounts to little iuore than this, that where part of an " A.CI is evidently ultra vires and the rest not evidently so, the Federal Govern- '■' ment will not interfere and disallow the bill. I have already said that the *' terms of section 02 of the B. N. A. Act do not ah)ne decide as to the limit of the " local legislative power. Those who drew the B. N. A. Act saw that, in spite of " all precautions, it would be imi)ossible so to Jeline the exclusive powers as to "avoid clashing. It was tlii refore enacted at the end of section 91, as a rule of 40 " interpretation, that "any matter coming v/ithin any of the classes of subjects " enumerated in this section shall not be deemed to come witliin the class of " matters of a local or private nature comprised in the enumeiatitm of the classes "of subjects by this Act assigned exclusively to the Legislatures of the Provin- " ces." This appears to me to be decisive in the present case, md I feel myself " compelled to (wme to the conclusion that an Act which disposes of the property 20 30 of a corporation created by a Federal law is unconstitutional. I SI % if;,'' *' There is anotlior way of conHi(l(>ring tlie nuittor. whidi appears to nic to Another " bring forward this vie," wtill more eU-arly. If the Proshyterian body all over view. "Canada wanted an Act of incorporation to enable them to manage their prop- ;;, •' crty, lu) local legislatiim would sufliee. This brings me to still another consi- " deration. The Ontario Act and the G2 cap. 38 Vic. (Quebec) are Acts of " incorporation to all intents and purposes. It is (rue they do not, in so many " words, declare certain persons to be a body corporate, but each gives to a cer- " tain organization coi'porntc powers ; each creates a fictitious person able to rec- " eive fx\u\ hold by gift and devise. It will scarcely be pretended that these two 10 " Acts have created but one l)ody corporate. They have evidently created two " corporations, each of which deals with Pri'sbyterians all over Canatla. Now, "■ let us apply the rub; of idfnt «/;r.v liiid down in the minute of Council men- " tioned by Mr. Todd. It was theri' saiil the A'it of Ontario Wius idtra oires in so '' far as it dealt with property in the Province ot Que'.jcc. Is it not by parity of " reasoning also tdfra aires in .so far as it deals with civil rights outside the Pro- "vince? If so, then cap. 02 is e(pially void so far. And what is the result? '' The Ontario Act not having been di.s.sallowed, exists so far as Ic can be applied " within the local jurisdiction — that is, it has incorporated the Presbyterians in '' Ontario, under the name of "The Presbyterian Church in Canada." The Que- 2(j " bee statute has incorporated the Presbyterians of Quebec under the name of " ' The Presbyterian Church in Canada,' ' or any other name the said Church " may adopt,' and it is in favour of this un-named Corporation, and not in favour " of the Ontario body, it has confiscated the property of ' The Presbyterian "Church .. Canada in connection with the Church of Scotliind.' This mode of " executive morselling would have the ellect of i)roducing a result which no Executive " Legislature contemplated. If a don' r directs that <£5 a piece be given to ton morselling. " pers(ms, it may logically be assumed that to give jGI apiece to each is partly " to fulfil his directions ; but to give the whole fifty pounds to one of the ten " per.sons, is to contravene his directions. Therefore, to let a law stand which 30 " is partly ullfa vires and partly constitutional, may be the most perfect mode of " defeating the legislative will. I therefore say that a law which is uUra vires " in part may be ultra vires in whole, and so it may be construed, at all events " when it appears that the object of the Act is not attained by a partial execution. " Take for instance an act of incorporation of a railway company from Quebec to " Toronto. Could that be interpreted as an act of incorporation from Quebec to " the Province Line ? Unquestionably it could not be. But 1 shall be told " ' there is a special exception for that' (.sect. 92, s. S. 10, a). The exception is " not, however :ore formal than the exception from incorporation by local Act " of companies having other than provincial objects. I therefore think that the ■10 " Act purporting to create the body to be benefitted by the transfer of the tem- " poralities fund is ultra vires in whole. That the Dominion Parliament has power over property and civil ri mected with the subjects to which its legislative authority extends is a pr ghts com sition not at variance with the terms of sections 91 and 91: propo- judici Couucil. This view has been acted upon by the Dominion authorities, and iiaf jial sanction of the Suprt^me Court of Canada and of Her Majesty's I IS the rivy wm 1P¥.W W Vulin vH. Luugloin, Chief Justic'J Ritchie's opiuion. Judge Tasclicr- eau'3 opinion. Judge Fournier's opinion. 32 In the case of Valin o. Langlois (3 Canada Supreme Court Reports, page 15) Chief Justice Ritchie said : " The property and civil rights rcturred to were not i"!l property and civil " rights, but that the terms " proi)erty and civil rights" nuist necessarily l)e read " in a restricted and limited sunse, becaust; many matters involving i)roperty and "civil rights are expressly reserved to the Dominion Parliament, of which the " first two items in the enumeration of the classes of subjects to which the ex- *' elusive legislation of the Parliauient of Canada extends are illustrations, viz., " (1) ' tlie public debt and property," (2) the regulation of trade and commerce,' " to say nothing of beacons, buoys, light-houses,' etc., 'navigation and shipping,' 10 *' * bills of exchange and promissory notes,' and many others directly affecting " prop<^rty and civil rights." " The Dominion Parliament would only have the right to interfere with " property and civil rights in so far Jis such interference may be necessary for the '' pur^Xise of legislating generally and effectually in relation to matters confided " to the Parliament of Canada." — (Ibid, page 16.) " I think that the British North America Act vests in the Dominion Par- *' liament plenary powers of legislation in no way limited or circumscribed, and " as large and of the same nature and extent as the Parliament of Greiit Britain, 20 "by wiiom the power to legislate was conferred, itself had. The Parliamei'*^ •' " Great Britain clearly intended to divest itself of idl legir^lative power over llil- ' " subject matter, and it is equally clear that what it so divested itself of it cv..- " ferred wholly and exclusively on the Parliament of the Dominion. The Par- " liament of Great Britain with reference to the power and privileges of the Par- " liament of the Dominion of Canada, and with reference to the trial of contro- " verted elections, has made the Parliament of the Dominion an independent and " supreme Parliament, and given to it power to legislate on these subjects in like " manner as the Parliament of England could itself legislate on them. It is a '' constitutional grant of privileges and powers which cannot be restricted or 3U " taken away except by the authority whicli conferred it, and any powei" given " to the lotal legislatures nuist be subordinate thereto." (Ibid pp. 10 and 17.) Mr. Justice Taschereau, in the same case, page 77, says : " The authority of the federal power, it seeuis to me, over the matters left *' under its control is (.'xclusivc, full and absolute, whilst as regards at least some " of the matti rs left to the pruvincial legislatures by sect. 1)2, the authority of " these legislatures cannot be construed to be as full and exclusive, when by rfuch " construction the federal power over matters specially left under its control " would be lessened, restrained or impaired. For example, civil rights, by the " letter of sub-sect. 13 of sect. 92, are put under the exclu.sive power of the local t" " legislaturi'S, yet this cannot be construed tu mean ' all civil rights,' but only " those which are not put under the federal authority by the other parts of the " Act." (Valin and Langlois, 3 Canada Supreme Court Reports, p. 77.) In the same case, Mr. Justice Fournier says : " Rien n'est plus clair ni plus certain (pie les legislatures n'ont pas une juri- *' diction complete sur les droits civils. Si tel etait le cas, les termes 'droits " eivils,' comprenant, par opposition au droit criiuinel, tous les droits dont uii "sujct pout jouir, il .s'euHiiivrait quo Ics provinces iuiniient uiic juridictioii illiml- " tee .sur tout ce qui no depondrait pas du droit criiniiiel." — (Ibid. p. il.) " Le Parleinout i.iip6rial, qui a organise I'^tat do clioses actuol, a juge a pro- ** pos de ne donnor aux provinces que des attributions definies ot lrinit6eH, lai^isant " au gouvernement federal, nioins les attributions reserv6es, I'exorcice de tons *' les pouvoirs do la souverainete cotnpatibli" avec I'etat coloniid. ' — Ibid. p. 43.) In the caso of The City of Fredericton and The Quoen, it was held " That City of ' by the British North America Act, 18G7, i)lonary powers of legislation are Fredericton 10 " given to the Parlianu-nt of Canada over all matters within the scope of its q- ''''''^ "jurisdiction, and that they may be exercised either aUsolutely or ccmuitionally ; ^"'^*^°' " in the latter case the legislation may be made to depend upon some subsequent "event, and be brought into force iu one part of the Dominion and not in an- " other." (3 Canada 8u[)re:no Court Reixjrts, page 505.) This hoh'ng not only recognizt-s the power of Parliament to legislate gene- rally, but also specially for parts of the Dominion. It could therefore pass Acts to amend 22 Vic. cap. GO, applying to Ontario and Quebec. In rendering judgment in The City of Fredericton v. The Queen, Chief- Justice Ritchie said : 20 " If the subject matter dealt with comes within the clas.ses of subjects .as- Chief "signod to the Parliament of Canada, I can find in the Act no restriction which Justice " prevents tho Dominion Parliament from passing a law which affects one part of ^'.**^'°'■ " the Dominion and not another, if Parliament in its wisdom thinks the legisla- °P'°'°°* " tion applicable to and desirable in one part and not in the other. " T).e Dominion Parliament is authorized to make laws for the peace, order " and good government of Canada in I'elation to all matters not coming within " the class of subjects by the Act assigned exclusively to the legislatures of the Provinces." 30 The Honorable Mr. Justice H. E. Taschereau in the same case said : "Once the power of legislation over a certain matter is found not to vest in Judge "the local legislatures . . . that [)ower necessarily falls under the control Taaoher- " of the Dominion Parliament, subject, of course, to the exigencies of our Colonial *'''?? " status. (3 Canada Supreme Court, p. 558.) opinion. In the same case Mr. Justice Gwynne said ; -' The mode devised for founding this new Dominion and for giving it a Judge " constitution similar in principle to that of tlie United Kingdom, was to constitute Gwynne's " it as a qudfii Imperial Sovereign Power. . . . whose executive and legis- °P'°' " lative authority should be similar to that of the United Kingdom, that is to 40 " say 5is absolute, sovereign and plenary as, consistently with its being a depen- " d'.'ncy of the British Crown, it could be in all matters whatever, save only in " respect of mafters of a purely miinicijMl, local or private character — matters re- " latiny to the family life of certain ■•mhordinate Provinces, and to wJiich Provinces " legislative Jurisdiction, limited to such matters, was to be given." Again, Mr. Justice Ramsay's opinipn is sustained by Mr. Justice Gwynne of the Supreme Court of Canada : " I have already, in City of Fredericton v. The " Queen, expres.sed my opinion that the plain meaning of the glpiiing sentence of noQ. WiT u III Citizens In- surance Co. vs. Parsons. Chief Justice Ritchie's opinion of what are property and civil rights in the Province. ** dec. 91 is tliat (iiotwithstantlin>^ anything in the Act) any nuitter coming within " tiny of the subiects ennnierated in the Dlst section shall not be deetned to come " within the class of subjects enumerated in the 92nd section, however much they " may appear to do so. Jurisdiction therefore 'over property and civil rights in " the Province is not vested ahsolntely but qaalifiedly in the local legislature. *' In so far as jurisdiction over ' property and civil rights' in every province may " be deemed necessary for the perfect exercise of the exclusive jurisdiction given " to the Dominion Parliament over the several subjects enumerated in section 91, " it is vested in the Parliament, and what is vested in the local legislatures by " item 13 of section 92 is only jurisdiction over so much property and civil rights lo "as may remain, after deducting so much of jurisdiction over these subjects as " may be deemed neci'ssary (or securing to the Parliament exclusive control over '* every one of the subjects enumerated in section 91 — the residuum, in fict, not "' so aljsorbed by the jurisdiction conferred on the Parliament." (Citiz^^-ns Insur- ance Co. V. F rsons, 4 Canada Supreme Court Reports, pp. 330, 331.) In the Same case the learned Chief Justice Ritchie re-affirms the opinion ex- pressed by him in Valin v. Langlois quoted above, and makes an important statement as to the subject matters untler exclusive i)rovineial wntrol : " I adhere to what I said in Valin and Langlois, that while the property and " civil rights referred to were not all property and all civil rights, but that the 20 " terms ' property and civil rights ' must necessarily be read in a restricted and " limited sense, because many matters involving property and civil rights are *' expressly reserved to the Dominion Parliament, and the power of the local " legislatures was to be subject to the general and special legislative powers of " the Dominion Pailiament — and to what I then addtd : ' that while the legisla- " tive rights of the locid legislatures are in this sense subordinate to the rights of " the Dominion Parliament, I think such latter right must be exercised, so far as " may be, consistently with the right of the local legislatures; and therefore the " Dominion Parliament would only have the right to interfere with property or " civil rights, so far as such interference may be necessary for the purpose of 30 " legislating generally and effectually in relation to matters conlided to the Par- " liament of Canada. The power of the Dominion Parliament to regulate trade " and connneree ought not to be held to be necessarily inconsistent with that of " the local legislatures to regulate property and civil rights in respect to all matters " of a merely local or private nature ; such as matters connected loith the enjoyment " and preservai'ou of property in the Province or matters of contract between parties " in relation, to their property or dealings'' " Althon~h the exercise by the local legislatures of such powers may be said ''remotely to affect matters connected with trade and commerce, unless, indeed, " the laws of the provincial legislatures.should conflict with those of the Dominion 40 " Parliament passed for the general regulation of trade and connnerce, I do not " think the local legislatures are to be deprived of all power to deal with pro- " perty and civil rights, because Parliament, in the plenary exercise of its power " to regulate trade and commerce, may possibly pass laws inconvenient with the " exercise by the local legislatures of their powers — the exercise of the powers of " the local legislatures being in such a case subject to such regulations ivs the " Dominion Parliam 1 r] *'i Error as to pvoviiiciiil Goveninieiit wjis, doubtless, to escape tlie responsiljility of iiH.senting to Orange Bills tlioin i\nd to throw the onus upon the Dominion Executive. Sir Jolin Macdoniild, then Minister of Justice, in an nble State paper, after pointing out that the Acts " had a provincial ohject," and were " within the competency and jurisdiction of the provincial legishiture," iidvised his P]x('elK'ney as follows : ''With respect to the presi-nt nieiisures, the undersigned is of opinion " the Lieutenant-Governor might, {sic in oriy.) not to have reserved thi-m '' for your Excellency's nsscnl, as he had no instructions from the Governor- General in aiiy way afTecting these bills. They are entirely within the com- petence of the Ontario Legislature, and if he had sought advice from his legal 10 *' adviser, the Attorney-General of Ontario, on the question of competence, ho would undoubtedly have received his opinion that these Acts were within the jurisdiction of the provincial legislature. This is evident from the fact that " (as appears from the votes and proceedings of the legislature) ',he Attorney- *' Genert' voted for and supported the bills as a member of tlie legislature. " Under these circumstances, the undersigned recommends that the Lieutenant- -Governor l)e informed that your Excellency does not propose to signify your " pleasure with respect to these reserved Acts, or to take any action upon them. The legislature will, at its next .session, which nuist meet before the expiraticm of the year within which, by the Constitution, your Excellency has the })ower 20 "to signify your pleasure, have the power, if it pleases, of cmside/ing these '* measures anew and of re-enacting them as it pleases." — (Ontario Sessional Pa- pers, vol. G, part 3, no. 19.) The advice of the Minister of Justice was adopted by the Dominion Cabinet and the Acts referred back to the Lieutenant-Governor of the Province of On- tario for his executive action. Sir John Macdonald's memorandum on this subject has since been accepted as embodying the correct view. It is doubtless to it that the learned Chief Jus- tice, under misapprehension, referred. ^ Misappre- No. 2. The learncid Chief Justice again fell into error in his remarks that the 30 hension of Supreme Court decided on a reference from the Senate that the bill to incorpo- 5 rate the Christian Br(jthers as a body of teachers fur liie whole Dominion was DorioD beyond the power of the Parliament of Canada, and proceeds to remark : "This No. 2.' "shows, under the provisions of the Confederation Act, that civil rights and pro- " vincial objects are not to be determined by the extent of territory to which " interested parties may wish to a[)ply the legislative action of the Parliament of " Canada, but by the chiuacter of such rights and objects." (Ap[)eal Book, page 44G, lines 22 to 30.) The Appellant submits that the reasoning of the learned Chief Justice in this respect is ineiTectual and inapplicable. Thi- Acts in ([uestiou were not enter- 40 tained on the ground that they trenched upon the subject of education, which, by section 93 of the British North America Act is exelu.sively iussigned to the local legislatures. Section 93 enacts : " Such provincial legislature may exclusively " nnike laws in relation to education, sulyect and according to the following pro- " visions." (The provisions have no bearing on this point.) A reference to pages 155 and 206 of the Journals of the Senate of Canada, 87 1870, vol. 18, will .show tliat the leiirned Chief JiiHtice Dorion hius bcoii led into The error. The Minutis of the Seimte are as follow.s; Christian Brothers teaohing Bill. Exlnu't from the I^rocecilhiya of the Senate. '* Tuesday, 4th Ajiril, 1876. " The IIoii()ral)lo David Christie, - Speaker. " The Order of the Daj being read for tlie consideration of the Bill intituled Proceedings " ' An Act to incorporate the Brothers of the Christinn Sehools in Canada,' as pro- of the "posed to 1)6 iunended hy the Committee on Standing Orders and Private Bills; S^'i"*<'- " The Honorable Mr. Bellerose moved, seconded by the Honorable Mr. Ar- 10 " mand, " That the amendment^ of the siiid Committee he now concirred in. " The Honoi'able Mr. Odell moved in amendment, seconded by the Honor- " able Mr. Botsford, " Thiit the cpiestion be not now put, but the Bill be referred to the Judges "of the Supreme Court for their opinion, whether it is not a meiisure which falls " within the cliiss of subjects exclusively lillotted to the Provincial Legislature, " under section 92, sub-.section 11 of the British North America Act, 1867, rela- "Ming to The Incorporation of Companies with Provincial objects?' and section " 93 relating to Education ? 20 " The question of concurrence being put thereon, the same was on a division " resolved in the afiirmutive. *' The question being put on the main motion, as amended, the same was " also on a division, resolved in the affirmative." Extract from the Proceedimja of Senate. "Tuesday, Uth April, 1876. *' The Honorable the Speaker presented to the House the opinion of the " Honorable Justices of the Supreme Court, in regard to the Bill intituled : * An " Act to incorporate the Brothers of the Christian Schools in Canada.' " The same was read by the clerk, and is as follows : 30 " The Supreme Court of Canada. " To the Honorable the Ser.ate in Parliament assembled : " In pursuance of the order of reference of your honorable house of the fourth Finding of " day of April, 1876, we have considered the Bill intituled ' An Act to incorporate Supreme " the Brotliers of the (Christian Schools in Canada," and we are of opinion that it ^'^"'*- " is a measure which falls within the class of subjects exclusively allotted to Pro- " vincial Legislatures under section 93 of the British North America Act, 1867. " Given under our hands at the City of Ottawa, this eleventh day of April, " 1876. (Sd) " W. J. Ritchie, J. 40 " "S. H. Strong, J. " " T. FOURNIER, J. " * I doubt if the Legislature by the 53rd section of the Supreme and Ex- " ' chequer (Jourts' Act intended that the Judges should, on the reference of a " ' Private Bill to them, express their opinion on the Constitutional right of the " ' Parliament of Canada to pass the Dill, and for that reason I haVe not joined s :i8 Misappre- hension of Chief Justice Dorion, No. 3. L' Union St. Jacfjucs v$. Btilislc. The holding in L' Union St. Jacques vs. Belislc. Holding in Dow vs. Black. ■i " ' in th'' accoiiniiiiiyiiig opinion, and not hccaiise I flirt'nr from the conclusion of " * the Icarneii Jiulgtn who have nigncd it. "'April nth, 1870. '" Wm Hiciiauus, C.J.'" No. .'). The learnt'd Chief Justice of tht* Court of Queen's Bench, in rendering judgment ill tins c ise, .>:Clanaf the Union St. Junjncn vs. licUfile: "III that case the Privy Council derided that a law authorizing hene- '• volent as.sociations in financial difTicnlties to compi 1 parties to accept a fixed in- '' denniity in lieu of the annuities to which they were entitled under the rules of *' the Society, was within the legislative power ol' the Legislature of the Province " ol" Quebec — aw affectinij cioil riifhtu only." The learned (.'hief Justice is correct as to the facts upon which the judgment of the Privy Council was rendered, but the reasons of the judgment are inac- curately stated. The Privy Council did not sustain the Act of the Legislature of Quebec,, 33 Vict. cap. 58, on the ground that it aliected "civil rights only," but 20 because " the Act relate'! expressly to a matter uh-rely of a h. u and private na- ture in the Province . . . which, by the !)2nd section of the British North America Act of 1807, passed by the Imperial Parliament, is assigned e.xclusively to the competeney of the provincial legislature, and does not fall within the category of bankruptcy or insolvency, or any other class of subjects by the 91st section of tlu^ last-mentioned Act reserved for the e.vdusive legislative authority of the Parliament (d" Canada." Lord Selborne, in rendering the judgment of the Committee, remarked (6 I.:iW Reports, Privy Council Appeals, ])age 3G) " It would seem manifest that the subject matter of this Act, the 3ord Vict. " cap. 58, is a matter of , merely local and [)rivate nature in the [)rovince, because 30 " it relates to a benevoUMit and benefit society incorporated in the city of Montreal " within the Provinc , and whirh appears to consist exclusively of members who " woubl l)e subjict i.>-i.naf(icie to the control of the i)rovincial legislature • " Clearly this matter is private ; clearly it is local so far as locality is to be con- " sidered, because it is in the province and in the city of Montreal." It will be answered, with regard to the case of the " L'Union St. Jac(iues " 0. Belisle, that the circumstances were prinni facie local and private, and that there was no prior Act passed by the old Parliament of Canada with which the new oneconllicteii. The decision is therefore as Mr. Justice Ramsay pithily said : "■ dead against the pretensions of Respondent." 40 The ease of Dow vs. Black (0th L;iw Reports^ Privy Council Appeals, page 272) turned upon the same point. The Privy Council sustained the constitution- ality of an Act of the provincial Legislature of New Brunswick, 33 Vict. cap. 41, entitled "An Act to authorize the issuing of debentures on the credit of the lower district of the parish of St. Stephen, in the county of Charlotte," which empowered the majority of the inhabitants of that parish to raise by local taxa- 39 tion a wiib.^idy dcHigneil to piumoto tlie confitruction of ii Rnilwiiy," on tho groniul that a provinciiil lugislntnro is t-njihU-d to iiiiposo direct tiixiitioii for local purpoHOH uiMin 11 partioular locality within the province, and that the Act in (jnostion related to "a matter oi" a merely local or private natnre in the province." In Doio and Black, the deciHion ol the cubo of L' Union *SV. Jacques de Montreal vs. Bellsle was quoted and approved, — (Ibid. p. 182.) No, 4. The learned Chief Justice nays (Appeal Book, page 445, line 39) : " Tlure is no power given hy the Confederation Act to the Dominion Parlia- 10 " ment to ann'ntl or re[)('iil an Act pii.sscd by a local legi.slnture within the limits "of its authority, :ind ther! is no concurrent authority conferred in this matter " t)n the Dominion Parliament and the provincial legislatures." The Appf'lliint submits that (saving the rights of the of the Crown to dis- allow any provincial Act that may conflict with the interests of the Empire, or of the Dominion generally, (Todd, Pailiamentary Govenunent in the Britisu Colonies, i)p. 343 and 344) within tlie limits of its authority the local legislature is supreme. But the (piestion still remains unsolved : "What are the limits of its authority." In all matters in which it has supn-me authority mnpiestionably th(! Dominion Parliament cannot over-ride its powers ; but the Appellant respect- 20 fully submits that there is error in the assumption that there is no concurrent authority conferred njjon the Dominion Parliament and the provincial legisla- tures in matters of property and civil rights. The opinions and decisions cited above show conclusively that the property and civil rights connected with sub- jects that do not fall exclusively within the jurisdiction of the provincial legis- tures arc under the control of the Dcmiinion Parliament, and that in these the authority of the Dominion Legislature is supreme. The Dominion Parliament is clearly entitled to create a corporation with Dominion objects, and to confi-r powers upon it that may be identical with those, accorded to a company incorporated in a province. Acts might be passed by the 30 Provincial and the Dominion LcgiKlatures incorporating companies for precisely the same objects, saving only that the limits of their operations would be differ- ent, acairding as they were authorised by the Provincial Legislature or by the Dominion Parliament. Tims in 1880 the Legislature of the Province of Quebec, by an Act, the 43 & 44 Vic. cap. 01, incorporated a lunnber of French capitalists under the name of ' Le Credit Foncier Franco-Canadien," for the purpose of lending money on mortgag'' and other securities in the Province of Quebec, This is a company with provincial olyects, and the rights appertaining to it are "civil rights in the province." At the last session of the Dominion Parliament, the same company made application for and olitained an A(;t of incorporation, 44 Vic. 40 cap. 58, for the exercise of pncisely the same powers throughout the Dominion of Canada. These objects are general, and the civil rights appertaining to it are Dominion civil rights. During the last session of the Ontario Legislature, the same company obtained the passage of an Act, 44 Vic. cap, 51, authorizing it to exercise the same powers within that province. The latter Act incorporated the company for Ontario provincial purposes, and conferred upon it civil rights in the province of Ontario. Here is an illustration of the exercise of concurrent powers by the Dominion Parliament and the Provincial Legislatures, ia which the pro- Misapprc- licn!*iuri of Chief JuHtioo Dorion, No. 4, No concur- rent author- ity in legis- lation. Companiei incorporated by both Parliament and legisla- tures. Credit Foncicr Franco- CanudicD. Isolating secttous 91 and 92. 40 vinciiil ActH Iiuvl' prov'mciiil nhjccts, miil conlV'i' civil rights in Ontario Jind Qnu- Ih'c roHpectivt'ly. The Doiniiiion Act luis Doniiiiioii olycctM iimi confers civil rightH ill tho wlioh" Dominion. T!i«' Karnril Chic'f JuHtict* conccivcH that grave ciMnplications would rosult i'rom porniitting tho Piii'lijunout of Canada and the Lfgislatures of th<' Provinces to I'.Ncrcise coMciincnt powers in regard to property and «',ivil rights. The Ap- pellant snltinits that, provideil the legislation in each case he restricted to the class of ttultjects falling within the province of the {Kjvvers of Parliament, or of the [iegislatiir»',a» the case may he, these dilliculties are largely imaginary. Such dilliculties have not eventuated in the earlier stages of oin- constitutional history, lo and are not likely to prove of frecpient occurrence, as (l(>nhts and misai)pre- hensions become di8i)ellid by the aid of judicial interpretation. Under the powers conferred upon the Parliament of Canada it is impo.ssible to argue that because a corporation obtains an Act in one proviiu'e for provincial objects, and aiterwards obtains an aiithoriz ition in another province to carry on its business there, that the Dominion Parliament is thereby debarred, without express re- striction, to inc()r[)orate a company for precisely th,' same objects, conferring upon it powers to acquire property and to transact its business throughout the whole of the Dominion, or throughout two or more provinces of it. In fact, after tlie pjussing of the Act 44 Vic cap. 58, being an Act " to enlarge and extend the 20 powers of the " Credit Foncier Franco-Canadien " by the Dominion Parliament, another Act Wius passed by the Dominion Legislature, namely, 44th Vic. cap. 51, being an Act to incori)orate till" "Credit Foncier for the Dominion of Canada," which had similar olijects and similai powers to those already conferred upon the '•Credit Foncier Franco-Ctinadien " in the Provinces of Queliec and Ontario and in the Dominion of Canada. Some of the learned Judges in Canada who have commented upon sections 91 and 02, have fiiuiid a conflict in the powers vested in the Dominion Parlia- ment and the Provincial Legislature-', arising from the use of the word exclu- sively in designation of the sul)jeets of [)rovincial jurisdiction. This has arisen 3U largely from considering section 02 of the British Noith America Act by itself without regard to .section 91. It is plain tint the two sections cannot be isolated and should be read together, and that where the pl.iin intent of the Act is to vest the general government with the .sovereign jurisdiction, reserving the resblaam merely for the provincial .authority, the terms conveying that residuum should not be ext-'iided beyond their natural purport, n-or so as to render them at vari- ance with the other provisions of thi- Act. The Ap[)ell mt submits that clau.ses 91 and 92 when iutijrpreted by the best rules of legal construction are not at variance and that misapprehension has arisen from i.solating them, in construc- tion disregarding their terms. 40 One of the judges, Mr. Justice Strong, of the Supreme Court of Canada, in the case of Severn vs. The Queen (Canada Supreme Court Reports, Vol. 3, page 166) said : *' All powers conferred in section 92 were to be read and regarded as excep- " tions to those enumerated in section 91, and by that section given to Parlia- •' ment. That section 92 therefon- was to be constrm d as if it had been con- stained in an Act of the Imp»>rial Parliament separate and apart from section " 91, and is therefore t-o be read independently of that section." 4t RulcH for construc- tion of iStatutcB. Lord Coke's opinion. Hirlloundoil I'ulnior'H opinion. TIimI tlio two scctioii.s iiiuHt 1)0 considered togctluTnnd not " iiidepeiideiitlj," Appflliint siihiiiits iloe.'* not admit of .serious controversy. Lord Scdljonic and Sir Jauios Colville, in the (luses alK)ve citivl, so considered tluui. ** TIk' oHice of II good expositor ot'nn Act of l*arli;inieiif," said Lord Coke in tli<' Lincoln Collfi(je oiiHc, "is to make constrnction on nil ilie parts tog'ther and •' not of one part only : Nctno fiiini (i/i«/i«nii jKirfcni rei /> intfjlitjen! pntcxt ttn- '■'■ ti'inam lotnm itcnuii niqtui iffjnitn iicr/cyrrit " : and again in Inst. t}8l, he says that*' it iri the most natural and genuine exposition of a statute to construi' one " part of the statute hy another part of the same statute that best cxprcsseth the 10 '* meaning of the makei's," , . . and *' this exposition is ex visrrri/n(s iiftiU.'' " Nothing is iietter settled," said Sir Kianidell l*alniei' (now Lord Selborno and Lord High Chancellor of England, on the Collier aiipointment, BY'h. 1872, see 3 Hansard 2()*J, page 085, *'than that a statute is to be expounded not »c- " cording to the letter but according to the meaning and sjiirit of it. Whit is " within the true m* aning and spirit of a statute is as nuich law as what is " within the very letter of it, and that which is not within the meaning and " s[)irit, though it seems to be within the letter, is not the law and is not the "statute That elTect should be given to the object and spirit and meaning of a " statute is *; rule of legal construction, but the object, spii it and meaning must 20 " be collected from the words used in the statute. It must be such an intention " as the Legislature has used lit words to express." The word " exclusively " must give way if in conflict with the general tenor 'exclusively' of the statute. Appellant, however, does not find that it is. " A Court of Law will reject words as sm'plusage if it is clear that otherwise " the manifest intention of the Legislature would be defeated." (Hardcastle ou •' The Construction and Ellect of Statutory Law, ps.ge 42.) Li liiocr Wear vs. Adam-son (Law Reports, 2 Appeal Ciises, House of Lords, " 764) Lord Blackburn said : " 1 believe that it is not disputed that what Lord Lord " Wensleydale used to call ' the golden rule' is right, namely, that we are to take Blackburn's 80 " the whole Statute together and construe it all together, giving to the words ^'P'"'""- " their ordinary signification, imless when so applied they produce an inconsis- " tency, or an absurdity or inconvenience so great as to convini:e the Court that " the intention could not have been to use then) in their ordinary signification, *' and to justify the Court in putting on them some other signification, which, " though le.ss proper, is one which the Court thiid<.s the words will bear." \n this case, the Ap[)ellant submits, no difficulty results from the u.se of the word "exclusively." But if such there were, it is obvious the whole tenor of the Confederation Act over-rides it. In Bywater and Brandlimj (7 Barnwell & Cre.sswell Reports, page 6G0) Lord 40 Tenterden said : " In construing Acts of Parliament we are to look not only at Lord " the language of the preamble or of any particular clause, but at the language Tenterdcn's "of the whole Act; and if we find in the preamble, or in any particular clause, °P'°^^°' "an expression not so large and extensive in its import as those used in other " parts of the Act, and if upon a view of the whole Act, we may conclude from " the more large and extensive expressions u.sed in other part<, the real intention "of the Legislature, it is our duty to give effect to the larger expressions, not- Hovorciffii Iiow(!rH io 'nrliauiniit, residuum to Logifl- luturcB. Ap))Cll!lllt'8 Ic^al propo BitioiiB. 42 ** withstiiuding phniHrH of Kss cXti'iirHive iinporl in the prouiuhK' or in any pur- " ticiiliir c'lmisc." St'f also ISlrmUiiuj vx. Mortfnn, I'luwdeirH Rt'[)()rt, p. 204 ; ajid 3 Ciuiiidii Siipruino Court Reports, p. 'J7 ; ILydon'tt ctiBe, 3 Coko's Ui-portx, 8. If, tlic'ii, tlicM'c is no itp[)ari'iit ooullict Ih'Iwl'cii the Hcctioiis, i^ircct iriust \n\ given to till' geiKTiil intention of the I'giMlatini'. The usi' of the word " exeUinively" iii Hcetion U'J his ematoil uiiieh, and the Ap[)elLuit subniits un- necessary, misaiiprehension. An examination of the ehisses of Hulijects, assigned to the Pi'ovincial legislatures, shews that they art' restrieteil in every iiistanc.; to suhjects of strietly provincial eoncern, and the ke\ note of the whole of section 92 10 niiiy l)e foinid in its last clause "generally all matters of a merely locid or private nature in the Province." Viewed in this way the general power to hgislate is conferred upon the Domiidon Parliament and the re»iilannt merely is left with the r TO vine ial 1 ey;islatiMes. 20 There need be no didiculty in giving the word ''exclusively" its natural con- struction. The preamble of the British North America Act clearly shows that the object was the Feder.il Union of the Piovinces ol' (,\inada, Nova Scotia and New Hrunsvviek, nndei' the Crown of the iMiitrd Kingdom of Great Britain and Ireland, '' with a eonstitntion similar in principle to that of the United King'lom." To the Federal [)ower was thert fore assigned all matters eoneerniiig '• th'' peace, 2 order and good govcrnnu-nt of tlu- Dominion generally;" to the several provinces were iissigm d, in a woid, th' ir own i)rivat«' (concerns. As Mr. Justice Gwynne of the Su[)reme Court of Canada said, in rendering jnlgment in the case of the Citizens Insinance Co. cs. I'arsons (i Supreuje Court Reports, [). 347) : " The '• ol)jeet of the British North Ameriea Act was to lay in tln' Donunion constitu- *• tion the foundation of a nation ; not to givi- to the [)rovinces carved out of, and subordinate to, the Dominion any thing of the nature of a luitional or (piasi- national existence." Such being the obvious intention of the Act, an)' apparent verl»al discrepancy must give way to that obvious intention of tlu' Imperial legislature. HO The view thus laid ilown also has the distinguished sanction of u recent tiictuin; the pre.sent Lord Chancellor ( Ijord Selborne) in rendering judgment in the recent case of O'lcdonui Canal Companj vs. The Nuiili JJrUiah Uadioay Cuin- id paiiij, sa "The more literal construction of a section tjf a statute ought not to pre- " vail, if it is op|)osed to the int 'ntion of the legislature as a|)parent by the " statut'' ; and if the words are sulfuiently lle.vible to admit of some other con- struction liy which that intention would be better ellec ted." — (VI Law Reports, House of Lords, page 111.) In <'onclnsi(jn, the Appellant submits ; 40 (( lo. That the objects of the Act 22 Victoria, cap. 66, are general for the entire Province of CanaJa as then constituted, and that the powers and civil rights appei'taining thereto extend over the whole territory of the old Province of Canada, and aie not restricted to either of the Previaces into which it was divided by the Confederation Act. •■'< - 4a 2(). Tliiit tliewu civil rightw are more extensive than could be (wiifcn-td iipoii uiiy Corporation created hy the legislature of the prcjvince, and that the legislii- ture of a province is incompetent to amend or repeal a statute which conferred >owers hevond its competency to create. 3o. That, under the statute 22 Vio. cap. tUi, the Petitioner is invested with the civil riglit of t ligil)ility or (jualilication for mt mbership of the Board, He.'^ponch nts ; that such civil ri,u;ht is not, within the meaning:; of section 1)2 of tlu! Hiitish North Auicrica Act, n civil right in the province of Ontario or t^uo- hec merely, but extomls over and may he invoked in any i)art of the old Pro- Id vincc of Canada. 4o. That the Act 22 Vic. cap. GO, wa,s and is not an Act with .v pmohicial (Ontario or Qu(d)ec) ohjeci, or relating to property or civil rights in a province^ or to matters of a " merely local oi- [)rivate nature in a piovince" ; but is general in its ol>jects, 8C()|)e and character, and ct)nfers " civil rights," that may be invoked in both provinces without being derived from either. The Appellant has secured tiie assent of three Judges of the Court of Queen's Bench to thc^e |)ro[)ositions, lait one of the Judges CDUcuniug in them held Ap- pellant had "no interest or right to obtain the injunction" (Appeal Hook, [)p. 460 and 451.) Tin- Honorable Judge finds that •' ihe Appclhiuf, who vcfiined to 20 '' (tccede to aiiiim, (Uid mho rltilmal tuid nfdl clditncd to hetoiuj to "John Davidson, ' "John Macdonald." go The minority protested against the union, and intimated by their protest that they would "claim and continue to be the Presbyterian Chuicb of Canada in connection with the Church of Scollund." Aftt.'r the majority iiiid left the build- ing in which the Synod was assembled, the minority (;ontinued the deliberations of the Presbyterian Church of Cantida in connection with the Church of Scotland, There was no bn!;d\ in the conneciion or continuity of the Presbyterian Cluu'ch of Canada in connection with the Cliurch of Scotland. It is clearly [)roved thut the Presbyterian Cliurch of Canada in cotniection with the Church of Scotland has continued its existence apart from the Presbyterian Church in Canada since 1875; that now, and at tlie institution of this suit, it has and hail a large stall of 40 clergymen, ninneious congi'egaUons connected witli it, and a great niuuber of ;id- luMcnts thiou'>;hout tlie whole of the Province of Canadii, iiududinij some of the most prominent iind influential men in the (jolony. It is didicult therelbre to [)eiceive how the Apptdlant is a member of " a separate boily" and not of " the PresbyteriiUi Church of Caimda in connection with the Church of Scotland." Even the Acts of the Legislature that are impugiieu in this case, recognize that 1 /.ij !• 45 some ol" the uiiiii«tors would not join the Union iind would continue the old Church. Some of the learned t'cclej^iastics. exiunined in this case, attor-pted to mjiin- tiiin thu identity of the ''United Church" with "the Presb} erian Church of Canada in connection with the Church of Scotland." The fallacy of this view is apparent. On the same assumption each of the other high (Contracting parties might contend that it was identical with it. If each of the four contracting Churches are identical with the United Church, three of the comix)nent parts must be ignored on every occasion tlnit the identity is attempted to be proved ; 10 and if the four contracting bodies separately attempted to apply the rule at the same time the results would be ruinous to the e.xistence of " the United Church." It is clear that " the Presbyterian Church in Canada" must be regarded lus "Theunitcd a new body: its elements are new. It is the result of an amalgamation, and Church" a the assumption of its identity with " the Presbyterian Church of Canada in con- "'^^ ^' nection with the Church of Scotland" is at variance with the fact that " the Presbyterian Church of Canada in coj: leetio'i with the Church of Scotland," though with diminished numbers, still exists, in full vigour and with perfect organization. The Appellant has adlur"(l to his Church. Those who left it to join the new Body are no loi.ger beneficiaries under the first fundamental prin- 20 ciple prescribed at the creation of the Fund. The Appellant certainly did not cea.se to be a member and a minister of the Presbyterian Church of Canada in connection with the Church of Scotland. If lie did, it was not for want of effort to remain in and preserve' it. The Synod had no power to affect the status of the Ai)i)ellant : he was and always has been acknowlcilgi'd to he a minister of the Presbyterian Church of Canada in connection with the Church of Scotland, in gt)od standing. He relies ui)on the Act of Parliament 22 Victoria, cap. 66, which consecrates the conditions upon which the Temporalities Board was formed and was to be administered. The Synod is powerless to modify these conditions: they can only be affected by 30 the action of the legislature. If the Acts of the provincial legislature that pur- port to modify them are constitutional, the Appellant is without recourse; l)ut Appellant submits, and in this resj)ect is supported by a majority of the Judges of the Court of Queen's Bench of the Province of Quebec, that the Acts in ques- tion are unconstitutional and ullra mrea, and that the Act of the old Province of Canada 22 Victoria, cap. 66, is still in force. The competency of the Legislature of a province, under Confedt ration, to Limit of amend or repeal a statute cannot e.Kceed its com[)eteu('y to create. -(Ssection 129 I'rovincial British North America Act, 1867.) The provincial legislature has no power to P"''*^'"- confer civil rights so extensive as those established umler the provisions of the 40 Statute 22 Victoria, cap. 66. It cannot amend or repeal what it imnnot create. Downing street, London, July, 1881. D. M ACM ASTER, Of Counsel for Appellant, i w th ■f 1 t |n t^c jptibn Countil. ON APPEAL FROM THE COURT OFl QUEEN'S BENCH FOR LOWER CANaJ IN THE PROVINCE OF QUEREC (APPEAL SIDE). BKTWEEN THE REVEREND ROBERT DOBIF, ., ANU " BOARD FOR THE MANAGEMENT OF THE TEMPORALITIES FUND {' OF TlIK PRESBYTERIAN CHURCH OF CANADA IN CONN E(JT ION WITH THE (JIIURCH OF SCOT- ..„ LAND" ET AK. - - - Rc^pomJeiA ARGUMENT OF MK. MACMASTEU, OF COUiNSfl FOR APPELLANTS. ,v..v>' . ^;'\1. ■•^' \ ' ' 4 « I 111 --^r' i •w>Cy^<> A^.^^^ ' No. IN BiCORD. JOIIRT OfI 30 ^H CANAdB 31 32 QUEIJEC 1 33 34 36 36 37 38 39 40 41 013! F, 1 42 Ani)d\^^ 43 44 yiENT FUND pRCH TION 5C0T- )F COUiN'Sa 45 46 47 48 49 50 51 52 53 54 55 56 57 58 DiaCRIPTION OP DOCUMKNTH. Affidavit of Jiimcs Croil filed Affidavit of the Rev. Johu Jenkins, D.D. - - - filed Exception to three Affidavits filed by Respondents - filed Plea .... .... filed Declaration of the Rev. Gavin Lang - - - filed Declaration of Sir Hugh Allan .... filed Petitioner's List of Exhibits filed (Petitioner's Exhibit M N.) Protest at the request of Joiieph Hickson, et at., against The Moderator of the Presbyterian Church of Canada in connection with the Church of Scotland .... dated Petition for Deposit and Notice thereof - • - filed Respondents' Exception to Judgment rendered this day by the Honorable Mr. Justice Jettd on Petition - filed Answer to Pleus filed Respondents' Answer to Petitioner's Answer to Respondents' Plea filed Deposition of the Rev. Gavin Lang, produced by Petitioner filed Admission of Parties - filed (Respondents' Exhibit No. 3', filed with Admissions) Copy of Extracts from the Records of the Presbytery of Glengarry, dated at Martintown .... (Respondents' Exhibit No. 3^, filed with admissions) Copy of Quebec Official Gazette, dated and published at Quebec, li)th June 1875— Extract - - - filed Deposition of the Rev. John McDonald, produced by Peti- tioner, filed Deposition of Douglas Bryumcr, produced by Petitioner, filed Deposition of the Rev. Gavin Lang, produced by Petitioner, filed Deposition of Sir Hugh Allan, produced by Petitioner, filed Deposition of James Croil, produced by Petitioner, - tiled Deposition of James S. Mullan, witness for Respondents, filed Deposition of Rev. John Hugh Mackcrras, produced by Resjwndents - filed Deposition of Rev. John Jenkins, D.D., produced by Res- pondents filed Deposition of Rev. Robert Campbell, produced by Respon- dent filed Dcposi/lon of Rev. Guvin Lang, produced by Respondents, filed Petitioner's List of Exhibits ..... filed (Petitioner's Exhibit X) Blank form of Cheque, used by the Temporalities Board of the Presbyterian Church of Canada in connection with the Church of Scotland - - - . . - - filed (Petitioner's Exhibit Zl.) Acts and Proceedings of the Synod of the Presbyterian Church of Canada in con- nection with the Church of Scotland, on and since June 1% 1875 filed Dats. 25th March 1879 4th April 1879 - 5th April 1879 - 11th March 1879 8th March 1879- 8th March 1879- 21st March 1879 15th June 1875 9th June 1879 14th June 1879 18th June 1879 12th April 1879- 25th June 1879 • 27th June 1879 ■ 8th June 1878 - 27th June 1879 - 28th Juno 1879 - 2nd July 1879 - 2nd July 1879 - 2nd July 1879 - 2nd July 1879 - 2nd July 1879 - 7th Ji''y 1879 - 9th July 1879 - 15th July 1879 - 15th July 1879 - Iht August 1879 Ist August 1879 1st August 1879 Paub D' Rboohd. 125 127 128 128 134 135 137 138 139 140 145 147 154 167 168 169 184 225 227 229 237 242 277 304 339 345 347 347 I;: Ml i ii No. IN Rsconn. 69 60 61 62 63 64 64a 65 66 66a 66b 66c 66d 67 68 68a 69 70 71 72 73 74 1 V Description ok DoonMBXTS. (Petitioner's Exhibit Z2.) Letter to the Rev. Guviu Lang, from the Rev, R. H. Muir, on behiilf of the Colonial Coniraittce of the Church of Scotland reco{;;nizing the Presbyterian Cliurch of Canada in connection with the Clmich of Scotland, dated 3rd June • - filed (Petitioner's Exhibit Z3.) Letter from Rev. G. W. Sprott to Rev. Guvin Lang, dated 16th June - - filed (Petitioner's Exhibit Z5.) Extracts from the Acts and Proceedings of the General Assembly of the Church of Scotl^ind, filed In the Court of Queen's Bench. Reasons of Appeal ---.-.- filed Answer to Reasons of Appeal filed Appellant's Case filed Remurks ot Mr. Justice Jett^, on rendering the judgment appealed from - - Respondents' Case ------- filed Proceedings in the Court of Queen's Bench - - from Judgment of the Court of Queen's Bench - rendered Proceedings on motion for leave to appeal to ller Majesty in Her Privy Council -..--- Order of Court granting leave to appeal to Her Majesty in Her Privy Council ------- Proceedings in execution of Bail Bond Bail Bond Notice of day fixed to prepare Record Notice to fix case for appeal . . - - List of Documents and Papers to be in.serted in the script lAHi of KxhibifM (Booki«) sent to the Registrar of Her Majesty's Privy Council, according to order given by the Honorable Sir Antoine Aim6 Dorion, C..ief Justice of Court of Queen's Bench • Certificate of Clerk of Appeals of Her Majosty's Court of Queen's Bench Certificate of Chief Justice of the Court of Queen's Bench - Index of Papers composing the Record in this cause - Judges' Reasons -------- Sir A. A. Dorion, Knight, Chief Justice - Mr. Justice Monk Mr. Justice McCord Mr. Justice Ramsay (dissenting) - - - . - filed - filed - tiled Tran- - filed Oati. Paob in Record. 2ud July 1879 - Ist August 1879 1st August 1879 3rd March 1880- 16th February 1880 16th March 1880 2-ith February 1880 - 30th Dec. 1879 to 11th Nov. 1880 - 19th June 1880 - 30th September 1880 8th November 1880 11th November 1880 11th November 1880 370 371 371 375 376 377 383 399 425 427 427 428 428 428 431 432 433 436 438 439 440 444 444 449 450 452 |n t^e ^riljg Council. f^-7Vp ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, IN THE PROVINCE OF QUEBEC, (APPEAL SIDE.) BETWEEN THE REVEREND ROBERT DOBIE, Appellant. AND "BOARD FOR THE MANAGEMENT OF THE TEM- PORALITIES FUND OF THE PRESBYTERIAN CHURCH OF CANADA IN CONNECTION WITH THE CHURCH OF SCOTLAND" et al., - Respondents. RECORD OF PROCEEDINGS. /^ Transcript of Record and Proceedings in the Courts of the Province of Quebec, uppv'iiled from in a cause between The Reverend Robert Dobie, Appellant. and " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connec- tion with the Church of Scotland " et al. Respondents. Canada, > In the Court of Queen's Bench for Lower Canada, Province of Quebec. ^ (Appeal Side.) 10 Tr.\nscript of all tlie Rules, Orders and Proceedings found in the Record and Register of IKr Majesty's Court of Queen's Bench for Lower Canada, in the Province of Quebec (Appeal side), in the niathn* hitely pending of the Reverend Rol)ert Dobie, of Milton, in the county of Halton, and Province of Ontario, Minister, Petitioner, and "Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," a body politic and corporate, duly incorporated, and having an oftice and prin- cipal plac(! of l)usiness in the city of Montreal, and the Reverend Daniel M. Gordon, Bachelor of Divinity, Minister of St. Andrew's Church of Ottawa, Pro- RECORD. In the. Court of Qiuien's Bench, "iiif In the Court of Qiurn's Bench. m' RECORD, vinco of Ontario, Revonnid John Cook, Doctor of Divinity, Ministor of St. Andrew'n Chmrli, Qiicboc, Province of Quoboc, Rcvoroml John Jenkins, Doctor of Divinity, Minister of St. Paiil's Church, of Montreal, Province of Quebec, Reverend Gavin Lang, Minister of St. Andrew'.M Church, of Montreal, Province of Quebec, Sir Hugh AUan, of Ravenscraig. Montreal, Province of Quebec, John L. Morris, Esquire, Advocate, of Montreal, Province of Quebec, Robert Dennis- toun, Es([uire, County Judge, of Peterborough, Province of Ontario, and Wil- liam Walker, Esquire, Merchant, of Quebec, Province of Quebec, the Reverend John 11. Mackerras, of King.ston, in tbe Province of Ontario, William Darling, Es(iuire, and Alexander Mitchell, ])o{\\ Merchants of the city of Montreal, afore- 10 said, Respondents, transmitted to the Court of Queen's Bench upon the Appeal side thereof, in virtue of a writ of appeal sued out by the said Petitioner, and to be transmitted on an appeal to Iler Alajesty in Her Privy Council. Document II. No. 1. Writ of Appeal, dated 30th Dec. 1879. Canada, Province of Quebec, (L.S.) Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith : To the Chief Justice and Justices of our Superior Court for Lower Canada, Greeting : WiiKREAS, in the Plaint lately pending in our Superior Court for Lower Canada, sitting ni the City of Montreal, in the District of Montreal, before you, 20 between : The Reverend Robert Dobie, of Milton, in the county of Halton and Pro- vince of Ontario. Minister, Petitioner, and "Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," a body politic and corporate, duly incorporated and hav- ing an othce and principal place of business in the city of Montreal, and the Reverend Daniel M. Gordon, Bachelor of Divinity, Minister of St. Andrew's Church, of Ottawa, Province of Ontario, Reverend John Cook, Doctor of Divinity, Minister of St. Andrew's Church, Quebec, Province of Quebec, Reverend John Jenkins, Doctor of Divinity, Minister of St. Paul's Church of Montreal, Province 30 of Quebec, Reverend Gavin Lang, Minister of St. Andrew's Church of Montreal, Province of Quebec, Sir Hugh Allan, of Ravenscraig, Montreal, Province of Quebec; John L. Morris, E.squ ire. Advocate of Montreal, Province of Quebec ; Robert Deniiistoun, Esquire, County Judge, Peterborough, Province of Ontario; William Walker, Es(juire, Merchant of Quel)ec, Province of Quebec, the Reverend John 11. Mackerras, of Kingston, in the Province of Ontario, William Darling, Esquire, and Alexander Mitchell, both Merchants of the city of Montreal, afore- said, Respcuidents. He, the said Reverend Robert Dobie, as by his complaint (we are informed) is aggrieved by the linal judgment, on the twenty-ninth day of December, 40 eighteen hundred and seventy-nine, We, willing that the said judgment should be revised and examined by our Court of Queen's Bench for Lower Canada, and full and speedy j ustice done in the premises, do command you, That you, or any 10 20 d of you, do scud, under your niguiituros, and iha seal of our Hatd Superior Court, all the origiiinl papers and proceedings in the eause, and a transcript of all tlie rules, ord(!rs and proceedings found in the record or register of our said Superior Court, concerning the same, to our said Court of Queen's Bench, that the Judges thereof may have them before them, at their Court House, in our city of Montreal, ill our Province of Qiiel)ec, on Monday, the nineteenth day of January next, that revising nnd examining the same they may cause further to be done tliere- upon what ol right, according to the laws and custom of our said Province, is meet to l)e done. In vritucss whereof, we have ciuised the seal of our said Court of Queen's Bench to be hereunto aflixed. At our city of Montreal, this thirtieth day of December, in the year of our Lord one tliousand eight hundred and seventy-nine, in the forty-third year of our reign. C. De GRANDi'Rii, Deputy Clerk of Appeals. Macma.^ter, Hall & Greensiiields, Attys. for Appellant. (On the back.) The execution of this writ appears by the scliedules hereunto annexed. Geo. H. Kernick, Depy. P. S. C. (Endorsed.) Writ of Appeal, returnaljle the nineteenth day of January, 1880. Returned and (iled in the Appeal Office in the city of Montreal this twenty-second day of January, 1880. RECORD. In the Court of Queen's Bench, No. 1. Writ of Appeal, dated 30th Dec. 1879. — continued. SCHEDULES ANNEXED TO THE WRIT. Province of Quebec, District of Montreal. Schedule A. In the Superior Court for Lower Canada. Transcript of all tlie Rules, Orders and Proceedings found in the Record or :K) Register of Her Majesty's said Superior Court for Lower Canada, sitting in the District of Montreal, in a certain cause lately adjudged in the said Court, and wherein the Reverend Rolwrt Dobie was Petitioner, and " Board for the Manage- ment of the Temporalities Fund of the Presbyterian Church of Canada in con- nection with the Church of Scotland " et ah, were Respondents, and transmitted to the Honorable Court of Queen's Bench, upon the appeal side thereof, in virtue of the writ of appeal sued out in this cause. In the Superior Court. No. 2. Summary of Procccdin}.';s. imm^ IIECOIID. J II the Superior Court. No. 2. Summiuy of Prococdinp;8. — continued. No. 2100. The Reverend Robert Dohie, of Milton, in the eounty of Ilalton, in tlie Province of Ontario and Dominion of Canada, Minister, vs. " Board tor the Management of the Temiwralities Fund of the Presbyterian Cliurch of Canada, in connection with the Church of Scotland," a body politic and corporate, duly incorporated, and having an office and it.s princi- pal place of busine.sH in the city of Montreal, the Reverend Daniel M. Gordon, Bacbelor of Divinity, Minister o( St. Andrew's Church of Ottawa, Province of Ontario; Reverend John Cook, Doctor of Divinity, Minister of St. Andrew's Church of Quebec, Province of Quebec ; Reverend John Jenkins, Doctor of Divinity, Minister of St. Paul's Chiu'ch of Montreal, Province of Quebec ; R(werend Gavin Lang, Minister of St. An- drew's Church of Montreal, Province of Quebec; Sir Hugh Allan, of Ravenscraig, Montreal, Province of Quebec, John L. Morris, Esquii'e, Advocate, of Mont- real, Province of Queliec, Robert Dennistoun, Esquire, County Judge, of Peterborough, Province of Ontario, William Walker, Esquire, Merchant, of Quebec, Pro- vince of Quebec, the Reverend John H. Mackerras, of Kingston, in the Province of Ontario, William Darling, Es(iuire, and Alexander Mitchell, both Merchants of the'city of Montreal, aforesaid - - - - - Petitioner. 10 20 Respondents. The 3l8t December 1878. In chambers. Coram. 30 The Honorable Mr. Justice Jett6. The Reverend Robert Dobie, personally and es qmdite, by his attorneys. Mes- sieurs Macmaster, Hall & Greenshields, files petition praying thnt for the reasons set forth in said petition, a writ of injunction may issue against the said Respon- dents, enjoining them and each of them to appear before this honorable Court or a Judge thereof, to ans^\er the present petition. That the Act of t'le Legislature of the Province of Quebec, intituled " An *' Act to incorporate the Board for the Management of the Temporalities Fund of " the Presbyterian ClKirch of Canada in connection with the Church of Scot- " land," passed in the thirty-eighth year of Her Majesty's reign (38 Vic, chap. 64) 40 may be adjudged and declared to be unconstitutional and illegal, and be rescinded and revoked, and that tie subject matter thereof, as therein presented, may be declared to be ultra vires of the Legislature of the said Province of Quebec, and that it be declared and adjudged, by the judgment to be rendered upon this peti- tion, that the said corporation. Respondents, are acting and taking proceedings 10 20 30 ot- 1) 40 ed be Liid ti- igs In the Superior Court. No. 2. Summary of Proceedings. — ccntinueil. 5 l)oy()M(l tlieir power, and without luiviiig fiiinilod tlio formalitioH preHcribcd by RECORD liiw mid by thcf Act of Incorjjorntioii tbiToof by ponnitting the Hjiid last luirned persons to net us nuinbris of (ho siiid IJoiird, ami of tlie said Corporation, without having l)c'en eleetcil as intMnbera of such Board in the manner provided by law and by the said Act of Incorporation, and, further, by administering, intenned- liiig with, and disljursing the funds and pro[)erty of the said Corporation in a manner and for purposi'.s not authorised by th(! said Act of Incorporation of the 22nd Vie., chap. 60, and liy holding, luhninistering, dis[)ensing and disposing of the funds and proi)erty of the said Corpor;itiou, without having a sufficient mun- 10 l)er of members of the sidd (Jor[)onili()n elected in the mannei' [)rovided by law, and in the Act of Incorporation thereof to constitute a((uorum of the said CoriM)ra- tion or of the said lioanl, and that it bi- fiu'ther adjudged and declared that the said Reverend .lohn .Jenkins, Reverend (iavii. Lang, William Walker, hJsc^uire, Robert Dennistoun, Escjuire, Reverend .John Cook, Reverend UaiMol M. Gordon, Sir Hugh Allan, John L. Morris, Es([uire, Reverend John II. Mackerras, William Darling, Es(juire, and AU'xander Mitidndl, Esquire, have no right )r authority to sit, deliberate or act as nieud)er.s of the said cor[)oration or Board, and tliereupon, further prays that the said Corjjoration l)e by such judgment restrained from act- ing and i)roceeding in rtspect of the; duties imposed upon them by the said Act of 20 Incorporation of the 22nd Vic, cha[). GO, and fix)m administering, using, dispensing or disposing of the funds and pro[)erty of the said (Jori)oriitiou ; and be ordered and enjoined not to a(;t in resi)ectofthe said duties and powers, and in respect of the said funds and property, until an ast (riiiio imtmv compl^lt'inciit (li(Vereiit(^ dii ciuitionnomont Jiii/irotinii nolri, vi (|ne la (U^immdc; di' cclui-ci n'iinpliMtiii('! c[uh couvrir lo montant dos 10 doniniagoM p'.obablos ct dovant rosultor iniuiodiatouiont I't diroctoinont du fait de romlHsion du brol" (riujoiiction lorscju'il y a liou ii tols doinuiages ; CoiiHidorant que la detnaiide Itiite on cotto cause par lew D<3foiidourH, pour (juo lo cautionnciutMit foiirni |)ar lo Douianiiour soit auj^inonto est mal lbnd(5o quant k co qui rogardc; la pcrto possible alloguoo (|uant aux actions de banquo possc'nl^os par los D6t"ondours, cos donnnagos n'otant ni probables ni prochains ; Considornnt que los ilounnagos all6gues au sujet des t'rais (^ue los D6tendours sont oxpos6s rt oncourir dans lo cas on ils soridont poursuivis par los ministros a; ant droit aux revonus du londs par eux adrniuistr6s, sont aussi des doinniagos oign6s ot probl6niati(iues; 20 Considornnt quo (juant aux bons do la cit6 do Montreal, nmintenant 6chus et dont rint6ret cosse au premier iMai procbain, lo Doinandour a oftbrt de consontir j"i CO quo los Dotendeurs, sous le controle tlu tribunal, iassont lo placement do la somme garantie par cos Ixjns et de toute somme en provonant, sans prejudice A ses droits, et (pie lo Demandeur a domand»'j acte do cette d6claration ; Considornnt quo co placement a etre ainsi fait Oquivaut au cautionnornont ([ui pourrait etro f'ourni par le Domandour et. y supplde entitirement ; Considorant, (piant h la pcrte probable d'intOret annuel sur le rovonu pro- duit par la balance dos Ixjns de la c\t6 do Montreal poss6d6s par los D6ibndeurH, ot sur lo revonu dos bons du bavro do Montr6al, aussi poss6d6s par les dits De- 30 londeurs, quo la dite demande est, quant a co, juste et legale en principe ; Donne acte au Domandour dj la declnrntion par lui Aiite qu'il est pret a consontir au placement de la sonune roprOsentant los bons 6chus de la cite de Montreal, ot do Unite sommo produito par icjllo, et, en consOquenco, ronvoie, quant a present, la demande dos Del'eudeurs pour augmentation du cautionnement pour ce motif ; Et adjugeant sur les autres points de la demande des D6fendeurs, et prenant en consideration rimportance dos interets en litigo : ordonne (jue le Domandour sera tenu, sous dix jours de la date dos pr6sontos, de donner et fournir, pour la garantie des Dolbiidours, aux tonnes do la section 4ieme du dit Acte 41 Vict : 10 oil. 14, un cautionnement additionnol a celui par lui d6ja donn6 s'Olevunt, le dit nonveau cautionneniont, a trois mille cinq cents piastres, a la satisfaction do cette Cour on d'un jugo d'icolle, et a dOfaut par le dit Demandeur de ce faire dans le dit del.d, le dit brof d'injonction sera tenu et consider6 comme non avenu ; Et la Cour, rcnvoyant la dite domande dos Defendeurs pour le surplus, con- damne le dit Domandour aux depon« de la dite roqueto, distraits a Mr. John L Morvis, avocat et procureur ad litem des Defendeurs Requcrants. IlECORn. Jn the (S'liwri'or Court. No. 2. Suininiiiy of l'rooocdinj;s, — cuiUinueil, 10 RECORD. In the Superior Court. No. 2. Summary of Proceedings. — continued. The 28th February, 1879. The Petitioner gives notice to Resixindents, excepting the Reverend Guvin Lang and Sir Hugh Alhin, under re.serve of his rights, that over and above the security by him ah'eady given he will give adilitional .security to the extent of three thousmd live hundred dollars, according to the onler aforesaid, said security to be given the twenty-eighth day of February instant, at half past ten of the clock in the forenoon, and that the names of the persons who will be then and there offered to give security are Jo.seph Hickson, railwa}' manager, and James S. Hunter, notary, both of the city ami district of Montreal. The Petitioner gives notice to Respondents, excepting the Reverend Gavin 10 Lang and Sir Hugh Allan, und'*r reserve of his rights that, in accordance with the judgment herein rendered on the nineteenth of February instant, he will give secui'ity for the costti that may be incurred by the said Respondents by reason of the iiction of him, said Petitioner, ajjart from the costs anil damages that may be incurred by the issuing of the writ of mjunction herein before the Prothonotary of the Superior Court at the Court House in the city of Montreal, on Friday the twenty-eighth day of February instant, at half past ten o'clock in the forenoon, and that the names of the persons who will then and there be offered as such sureties are George Graham, merchant, and William Currie, both of the city and district of Montreal, who will then and there justify to 20 their sufficiency if i-equired. The said Petitioner gives notice that security for costs has been given — he gives also notice that additional security has been put in by him. Proceedings on petition by Respondents for an order to suspend injunction with judgment thereon. The 3rd March, 1879. The Petiticmers file petition to have injunction dissolved or suspended for the reasons set forth in said petition. The affidavits of Reverend J. H. Mackerras, Jau)es S. Mullan, John Cook, John Jenkins and Robert Campbell are annexed to said petition. 30 Ten days are allowed to ansv/er. The 14th March, 1879. The Petitioner files answer to petition to quash injunction, with also affidavits of Douglass Brynnier, Reverend Robert Dobie, Reverend Robert 13 urnet, Reverend Thomas McPherson and John Davidson, of the Reverend Gavin Lang, Sir Hugh Allan and of Mr. Justice Miller. The nineteenth of March is fixed for hearing on merits of injunction. The 21st March, 1879. The Petitioner files in support of case generally and of his answer to petition to dissolve a list and Exhibits BBB. LL. MM. CC. EE. KK. FF. DD. 40 The 25th March, 1879. Tlie affidavits of the Reverend Roliert Campbell and James Croil are filed. 11 . . The Ist April, 1879. By Mr. Justice Jett6. Tlii« ca.se is lixoiJ for hearing hef'ore me in number One l)ivi.sion of this Court, on Saturday the fiftli day of April instant, on tlie petition of the thirty- first December hist, to dissolve or suspend the injunction at 11 o'clock in the forenoon. The 4th April, 1879. The affidavit of the Reverend John Jenkins is filed. RECORD. In the Sxtperior Court. No. 2. Summary of Proceedings. — continuetl. The 5th April, 1879. 10 Present : The Honorable Mr. Justice Jetto The Petitioner files exception to three affidavits filed by Respondents. The parties being heard upon petition to dissolve and suspend injunction. d A. V. Le 31 mai 1879. Present : L'honorable Juge Jett6. La Cour ayant entendu les parties sur le merite de la Requetc faite et pro- duite par les D^fendeurs, le trois de mars dernier, suppliant pour les causes et 20 raisons y 6nonc6es, a ce que le Bref d'Injonction emis dans cette instance soit casse ou suspendu ; ayant examine la procedure et d61ib^r6 ; Considerant que bien que I'acte de la Legislature de Quebec, 38 Victoria, chap. 64, etablisse en faveur des Defendeurs en cette cause un^ prdsomption qui ne pent etre detruite que par la reconnaissance juridiquede rinconstitutionalit<3 du dit acte, il resulte neanmoins des ciroonstances de la cause, des faits ^tablis par les affidavits et consignes dans les plaidoieries ecrites des dites parties, que le Re- qu6rant a un droit incontestable a la surveillance de I'administration du fonds dont la gestion est confiee a la cx>rporation D6fenderesse et aux Defendeurs, et que le dit Requdrant a de plus un irtdret r6el et reconnu a la conservation du dit 30 fonds. Consid6rant qu'il est etabli et reconnu que depuis la passation du dit acte, 38 Vict., chap. 64, la corporation Ddftaideresse a diminu6 le capital du dit fonds confie h son administration d'une somme de quarante mille piastres, et que le Re- querant, en presence de ce fait est bien fonde a pretendre que la continuation de I'tidministration du dit ftmds par la corporation Defenderesse etpar les Defendeurs met ses intercts dans le dit fonds en un danger serieux et immineut. Considerant que la suspension du Bref d'Injonction 6mis en ( ette cause pour- rait faire encourir an Requerant par une nouvello diminution du capital du dit fonds, une perte irreparable, tandis que le maintien du dit Bref, tout en etant 40 un inconvenient serieux pour les Defendeurs, ne met en peril aucun interet, mais au contraire protege tons les droits jusqu'a adjudication finale sur le litige entre les parties, renvoie la dite requete avec depens distraits a Messieurs Miwmaster, Hall et Greenshields, Avocats et Procureurs du Requ6rant, le R6verend Robert Dobie. 12 RECORD. CONTINUATION OF PROCEEDINGS ON TRINCIPAL DEMAND. In the Superior Court. I )' No. 2. Sununary of Proceedings. — contiuuvd. The 8th March, 1870. The Petitioner tiles ileiiiand of plea to his action. The 11th March, 1879. The Respondents, the " Board lor the Management ol" the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," the Reverend Daniel M. Gordon, the Reverend John Cook, the Rev- i-rend John Jenkins, John L. Morris, Robt. Dennistoun, William Walker, the Reverend John H. Miickerras, Wm. Darling, Alexander Mitchell, file pleas. The lie.spondent, the Reverend Gavin Lang, minister of St. Andrews Church, lo Montreal, declares — that he acquiesces in the pretensions of tlu' Petitioner; that iurther it is in the ii.terest of the lawful claimants of Funds, heretofore ad- ministered by the said Corporation, that the injunction herein made should be continued ; tlmt in all matters this Respondent has acted in good faith, and he abides the order and judgment of the Court herein. The same declaration is made by Sir Hugh Allan. The 21st March, 1879. The Petitioner fdes, in support of case generally and of his answer to petition to dissolve, a List and Exhibits BBU. LL. MM. CC. EE. KK. FF. DD. The 2nd Jmie, 1879. • 20 The Respondents, excejjt Rever^^nd G. Lang and Sir Hugh AUan, give notice to Petitioner that the Honorable Mr. Justice Jett6, one of the judges of said Court, in chambers, has this day appointed and fixed Tuesday the tenth day of June, instant, at eleven of the dock in the forenoon, before a judge in chambers in the Court House, Montreal, for the sulduction of the Petitioner's evidence in this cause. The said order is as follows : I, the undersigned Judge, do hereby appoin.t and fix Tuesday the tenth day of Jiuie, instant, at eleven o'clock in the forenoon in the Court House, Monti'eal, for the adduction of the Petitioner's evidence in this cause, notice thereof to be 3(» given to the Petitioner. Enquete to be before a ' 'dge in chambers. Inscription filed. (oigned) L. A. JETTii, J. The 9th June, 1879. The Res|K)ndents, except the Reverend Gavin Lang and Sir Hugh Allan, file petition praying that they may be permitted to deposit in the olHce of the Pro- thonotary of this Court, or in such place is ordered by the Honorable Judge, the sum of eight thousand dollars ($8000.00) or such other sum as the said Honorable Judge may ^is., to secure the rights of petitioner, Dobie, pending this suit, and that the injunction granted in this cause may be declared dissolved so soon as 40 said sum, in such seciu'ities as prescribed by His Honor, be deposited in the office of the said Prothonotary, costs to abide the issue of the suit. They give notice of said petition to the petitioner, Dobie. 20 sei wi Al 30 arc me •10 18 The 10th June, 1879. The Eiiqiicte is continued to the seventeenth instant by consent. The 14th June, 1879. The petition of the ninth instant is rejected, with costs by his Honor, Mr. Justice Jette. The Respondents except to judgment rendered this day by the Honorable Mr. Justice Jette, on petition. The 18tii June, 1879. The Petitioner files answer to pleas. 10 The Respondents file answer to Petitioner's answer to Respondents plea. The 25th June, 1879. S. A. Abbott is sworn sis stenographer to take evidence. Reverend Gavin Lang, a witness for Petitioner, is sworn and examined. The 27th June, 1879. The Respondents file admissions with a List and two Exhibits 3^ and 3^. The 28th June, 1879. ' Reverend John McDonald, a witness for Petitioner, is sworn and examined. The 30th June, 1879. The Respondents give notice to Petitioner to proceed with his enqucte the 20 second day of July next. The 2nd July, 1879. Douglas Rrymner, Reverend Gavin Lang, Sir Hugh Allan and James Croil, witnesses for Petitioner, are sworn and examined. Harry Cutt is sworn as stenographer. James S. MuUan, a witness for Respondents with the exception of Sir Hugh Allan and Reverengalement en payant diverses sonnnes a des mirdstres ne 40 Ibrmant i)lus partie de la dite Eglise, et ([u'il d'Mnande en con.s(j(pience (pie le dit Statut Provincial, 38 V^ictoria, chajiitre 64, suit declar(ji inconstitutionnel, mil, et de nul eilet ; (jue les Def'endeurs soient declaims non-li^'galement elus membres du dit bureau, et (pi'il leur soit enjoint de cesser d'occiqjer la dite charge et d'admi- nistrer Ks dits biens, et qu'enfin il soit declarij que le dit Ibnds des biens tem- porels est la proprid'tij exclusive de la dite Eglise, et ne pent etre employ(j qu'aux ]5 (iii» en premier lieu po"'ViK'S, et de plus (pie les R6v6rends John Cook, Janios C. RECORD. Miiir, George liell, John Fiiirlie, David W. Morrison et Charles A. Tanner soient (U'eliires n'etre phis ministres de hi dite Eglise et n'avoir aucun droit an revenu (hi dit I'oiids; Considerant que k\s Delendeurs, satit' le Reverend Gavin Lang et Sir Hugh AUan, out eonteste cette demaiidc, alTirinaiit entre aiitres ehoses hi constitutioiia- lite du statiit atta([U(5 par h^ liequcjrant et hi l(^galite de leurs actes; In the Suptriur Court. No. 2a. Ju{]giucnt of Consid(M!int (pie par hi section 92 (k^ I'Ai-te de I'AnKjriqiie Britannique du (jouyt jatcd Nord, 18G7, il est declarer iiU(.' hipr()[)riete ( t h'.s droits civils soiit exclusivenieiit du 29th i)eccm- 1(1 ressort et de hi coinpetince dcs fjegislatures Proviiiciales et que h-s (hoits affectes bcrl879— par le dit Aete 38 Victoria, ehapitre G4, dont h' Re(pieinnt (h'lnande raniiuhition, <»»'"«"«<'• tomhent fornielleniciit sons I'l'inpire (h' hi dite section 92 de I'Acte constitution- nel, et soni par suite, sous la juridicliou et cornpcHence de la Legislature Provin- ciale, et qu'en consequence le dit Statut Provincial est valable et legal et a pleine Ibrce et vigiU'ur ; Consideraiit que bien (pie le Requerant ne soit pas r(5sidant dans hiProvinco . de Qu61)ec, la Legislation du Parlenu-nt de cette Province aifecte necessaireinent les droits qu'il pent posseder on r6clainer dans hi dite Province, et que par suite les droits qu'il invoque dans I'esptice sont iK'cessaiieinent sounds aiix dispositions 2(1 du dit Acte Provincial, 38 Victoria, chapitre G4 ; Considc^rant qu'aux ternies du dit Acte les Defendeurs sont lijgalenieiit en charge a)niine nieinbres de la corporation Di!fenderc.s.> In the Superior Court. District of Montreal. ) Tlie Reverend Robert Dobie ... 20 vs. Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," e< ((Z . . . . . Petitioner. Respondents. To the Honorable the Superior Court of Lower Canada, District of Montreal, or to any one of the Honorable Justices of the said Court sitting in and for the District of Montreal. Tlie humble Petition of the Reverend Robert Dobi(?, of Milton, in the county of Halton, in the Province of Ontario, and Dominion of Canada, Minister; per- sonally, and in his (pialiti<'S hereinafter mentioned, Petitioner, complains of the HO " Board for the Management of the Temporalities Fiuid of the Presbyterian " Church of Canada in connection with the Church of Scotland," a body politic and corporate, duly incorporated, and having an office and its principal place of business in the city of Montreal, and of the Reverend Daniel M. Gordon, Bachelor of Divinity, minister of St. Andrew's Church of Ottawa, Province of Ontario; Reverend John Cook, Doctor of Divinity, minister of St. Andrew's Church, of Quebec, Province of Quebec ; Reverend John Jenkins, Doctor of Divinity, mini- ster of St. Paul's Church, of Montreal, Province of Quebec ; Reverend Gavin Lang, minister of St. Andrew's Church, of Montreal, Province of Quebec ; Sir Hugh Allan, of Raviinscraig, Montreal, Province of Quebec; John L. Morris, 40 Esipiire, advocate, of Montreal, Province of Quebec; Robert Dennistoun, Escjuire, County Judge of Pt'terborough, Province of Ontario ; William Walker, Esquire, merchant, of Quebec, Province of Queb:!c ; the Reverend John H. Mackerras, of Kingston, in the Province of Ontario; William Darling, Esquire, and Alexander fr i T'' I IIECOIU). In thf IStijKi-ior Court. No. 3. Petition uud Order for Injunction and Writ of Injunction, filed ;Ust December 1878— oontiumd. 18 Mitc'lu'll, l)i)lli iiicrcli;iiit« oi' the city nC Moiitroal, iil'orcsjutl, lli'spoiiilciitw ; ami avurs : That Pc lioiuT is ii iniiii.ster of tho l*ro«byterian Chiwdi of Canada in con- nection with tliu Clnnch of Scotland, and a inoiuh r of the Synod thereof, and niini.stur of the church and congregation designated " St. Andrew's (Jhurch" in Milton, aforesaid, in connection with and under the ecclesiastical jurisdiction of the Presbyterian Church of Cainida in connection with the Church of Scothind. That said Petitioner is m ineinber nnd minister of the Church of Seotliind, and a Protestant clergyninn. That the said Respomients, the '• IJoard for the Management of the Tempora- lo lities Fund of the Preshyterinn Chiu'ch of Canada in connection with the Church of Scotland." is a body politic and corporate, duly incorporate I under a Statute of tlie lieretofori' Province cd' Canada, 22 Vie. eh;i[). 00 ; having an olfice and its princiipal place of business in the city of Montreal, in the district of Montreal, in the Province of Quebec. That in the year eighteen Inunlredand fifty. Petitioner was duly licensed as a probationer and minister of the Church of Scotland by law established in that part of the United Kingdom of Great JJritain and Ireland, called ScothnuJ, and Petitioner came to the heretofore Province of Lower Cnnada, now the Province ol. Quebec, as an ordaine respect to the Clergy Reserves, to call a sp< "ial meeting of Synod as early jis possible for the purpose of taking such steps as may be necessary to take advan- tage of the (Jomnnitjition clause in the Act which has lately been passed by the Provincial Parliament, I have now to intimate to you that a special meeting of Synod will be held in St. Andrew's Church, Montreal, on the lUth of January, 1855, being the second Wednesday of the month, at half-past six P.M. I am. Reverend and Dear Sir, Yours faithfully, James Williamson, Moderator. P. S. — It has been thought by several of my brethren, with whom I have 30 conferred on the subject, and I concur in the opinion, that in the circumstances of the case, Montreal is, on the whole, the most suitable place for the meeting of Synod on this occasion. The Synod unanimously agreed to approve the Moderator's conduct in calling this meeting. The Synod then called for the rejwrt of the committee appointed to watch over the interests of the (Jhurch in regard to the Clergy Reserves, which was given in and read by Dr. C(X)k, the Convener, stating that the Bill for the secu- larization of the Clergy Reserves, which had been introduced into Parliament by the Government, had been cairied in both Houses, and a.ssented to by the Gover- 10 nor-General : — that it contained a clause .securing to all ministers settled previous to the 9th May, 1853, the date of the passage of the Imperial Act, payment of their salaries from the Clergy Reserve Fund during tiieir lives or incumbencies, and at the same time authorizing the Government to commute the claims of in- cundjents, with the con.sent of the parties and bodies severally interested, and that the conuuittee, for reasons which they stated, had not considered it expe- 28 (liciit to iiitorlcrt' in any way with the ,<.-..oing of the Huid Hill, hut iVoling jiwHiired I'lom iiiiuiy coiisidiTutioiiH tlmt it would ho tor the heiudit of the Church to take (ulvaiitii^f of the Coiiunutntion elaune of the Act, the (Joinmittee hiui requested the Moderator to eall n i>n) n- natu nictting of Synod to take the matter into conrtideratioii, and iniik(> the uetiesHary arraiigeiiientH ; and the Conunittee further, and at great length reconuuended that the Synod should agree to coiuniutation. The Synod approved of the conduct of the connuittee, iind after some dis- cussion agreed to defer the further consideration of the report until to-morrow, and instructed the aforesaid committee to draft resolutions to Ini then laiy delegate to " the said Rev. Dr. John Cook full pt)Wijr and authority to endorse and assent " to the several Powers of Attorney from the individual parties on behalf of the " said Synod, and in their name, and as their act and deed, as evidencing their " assent thereto. 25 '• 3i(l. That all uiiniistors be, and tlioy are hereby enjoined and entreated, llECORD. '■ (as to a measure by whieii, under Providence, not only their own present in- " terests will l)e secured, but a perni.ment endowment for the maintenance and " '".*' " extension of religions ordiniinces in the Church) to grant such authority in the ^(j,nirL " fullest munmr, thaidtful to Almighty God that a way so easy lies open to " tlif^m for conferring so important a benefit on the Church. No. 3. •' 4th. That the aloresaid Commissioner,-, be a Committee to take the neces- ^*^V*'"|.' ^"*^ ■' sary steps to get an Act of Iii('.or[)oratioii for the management of the General Xniunction •' Fund, so to be obtained ; the aforesaid Commissioners to constitute the said and Writ of 1(1 " Corporation till the ne.xt meeting of Synod, when four more members shall be Injunction, " added by the Synod." Dcoeuibcr The Synod ordered the minutes of this meeting to be printed, and a copy jg^g sent to each minister as soon as possible, and they further instructed their Com- continued. niissionuis, named above, to addrebs a circular to the several ministers, showing tiiv,m the in)])ortance of commuting upon the i)lan agreed to at this meeting, and giving them full information on the sulject. The Synod requested their Moderator to convey to the Hon. John Hamilton, of Kingston, and the Hon. Thomas Misckay of Ottawa, the thanks of this Synod for tlie assistance aflorded by them to the Clergy Reserve Conunittee of this 20 Synod, when lately met at Quebec, and for tluir exertions on behalf of the in- terests of this Church, especially during the present session of Parliament. The l)usiness for which the special meeting of Synod had been called having been fniished, the Reverend Dr. Mathieson stated "that he availeil himself of the oi)i)oriunity which this special jneeting of SjMiod afforded, to direct the atlt'ution of the congregations within the bounds to the call made by the General Assembly of the Church of Scotland, and generously responded to by every [)arish in the land to contribute to the Matioual Patriotic Fund for the relief of tlie wives and children of the brave men who have been disabled or found a soldier's grave in fighting for the honor of their country, and the liberty and (it :;o is to 1)0 hoi)ed), the ultimate peace of the world, and the advancement of the liedeenu'r's Kingdom; and, also, to the circumstance that several of the congre- gations in connection with this Synod have already contributed or were anxious to contribute their subscriptions through the channel thus aflorded them, to the Pidriotic Fund." Whereupon Dr. Mathieson moved to resolve, and it was re- solved accordingly : " That this Synod deeply sympathise with Her Majesty and lier people in the great struggle in which she has been constrained to engage, for the liberty ami iink-pendeiiee of nations. Sympnthi.sing also with the numerous families, whose hearts, in tlu' inscrutable Providence of God, have been filled with sorrow 40 for the loss of their natural protectors, or their friends who have fallen in the contest, and being dee[)ly sensible of, anil grateful for, the inestimable blessings, both civil and religious, which this colony enjoys, under Her Majesty's gracious sway, and its connection with the parent State, this Synod strongly reconnnend to all the congregations within their bounds, not only as an expression of their gratitnde and sympathy, but as a solemn duty, at the earliest convenient season, and in the way that to the ministers and elders seems best, to make contri- butions to the National ]*atriotic Fund : — and that Hew Ramsey, Esq., Montreal, 26 m^f \k In the Superior Court. No. 3. filed 31st December 1878— continued, RECORD, be aiipointed to receive from the respective coiigre,!j;iition.s tlu'ir several contrilni- tioiis, iind triinsinit tlieiii to William Young, E«(|iure, W.S., Ediiihuigh, who has been appointed to receive the contril)iitions of the Church." The Synod was then dosed with prayer. That the said proceedings of the said Synod are valid and binding; thiit the terms and conditions therel)y established ami declared, form the basis for the d and allowance, lorniing a life (;laiin payable to [lini hy and out ol' said siiin.s, anioiiiited to tli'' >iiiu ol" one lHiiidi'''d atid lil'ty ponnds ctirrciHiy per aiintiin, and ilic.-aid IVtitioiK'i' lia.s ncvvT ilonc anytliiiiii to I'orl'eit his fight to [)articipate in thr ^le (which it was dechued not to l)c compet nt for the said Synod at any time 2ii to alter, unless with the consent of the ministers granting such power and autho- rity) namely, that the interest of the said fund to be so createil, shoidd be de- voted, in the first instance, to the [)ayment of one hundred and twelve pounds, ten shillings, to ea' h memli i- then on th.- Synod roll, and who wis on the Syno'i loll on ninth May. eighteen hundred and lifty-three, and that the ne.\t chiini to he settled, if the said fund should admit, and as soon as it sliould admit of it, to the one hundred and twelve i)oiiiids, ten shillings, be that of the ministers who.-u iiames at the time of the passing of the said resolutions were on the said Synod roll, and which had been put on the said Synod's roll since the ninth of May, eighteen hundred and fifty-three, up to the date of the [)assingof the said rest)lu- ?,{) lion; and also upon the condition that it should be considered a fundamental [)riiici[)le that all persons who have a claim to such benefits should be ministers of the Pr<3sl»yterian Church of Canada in connection with the Church of Scotland, and that they .-hould cease to have jiiiy claim on or to be entitled to any share of the said Coimnutalion Fund whenever they should cetise to be ministers in connection with the said Chundi. That the saiil Petitioner has always maintained his connection with the stiid Probyterian Church of Canada in connection with the Cliur«'h of StMtland, iind has done nothing to forleit his rights and privileges therein. That the funds placed in the hands of the said Commissioners, subject to to the terms, conditions and fundamental principles of the said resolutions, to lie held for the pur[)ose, and subject to the restrictions hert.'in mentioned, to wit, the funds resulting from the original ommulation id aims of the ministers upon the CU'rgy Reserves, exclusive of all other contri[)utions to it, amounted in eighteen hundiid and llfty-live, to the sum of One hundred an|]iir tor * *■ It/ *' ^ Iniunction Bi'iti^h North America A('t, 1807, to wit, the Act of the Pailiiinient of tin,' and Writ of Unitid Kingdom of Great J^ritain and irehmd (3()th and Slst Vic, chap. 3), and Iiijuiieiion, the Legislature of the Province of Quebec Wiis incompetent to pass said Act; and Ki the ."^aid Act ol" tlio Province of Quebec, in so far as it derogates from, or purports to modify or vai'y the Act 22 Vic, chap. 00, of tiie hen'tofore Province of Canada, is null and of no eil'ect. That the sidyect matters of said Act of th'j Legislature of Quebec are not of a mere local or piivate nature within the Province of Quebec, but affect the rights of jjcrsons residing beyond the Province of Quebec, and not subject to its jurisdiction. That the Petitioner is not subject to the legislation of the said Province of Quebec affecting his interests in the said funds, and the said Legislature of said Province oi Quebec has exceeded its competency and jurisdiction in 20 pjissing said Act. Thiit the interests of the Pi-titioner in the moneys arising from the said connmitations and in the Temiwralities Fund, as constituted by the Act (22 Vic, chap. 00) of the late Province of Canada, are not of a mere local or priviite nature in the Province of Quebec, but are a matter of general interest. That the objects of the corporation, Respondents, under the Act 22 V"ic, chap. GO, of the heretolbre Province of Canada, were not, and are not, of a provincial nature, but extend to peisons residing in the Provinces of Ontario and Quebec. That the said Act of the Legishiture of the Province of Quel)ec is illegal and 3(» unconstitutional, and beyond the competency of the said Legislature. That the said Act of the Legisl iture of the Province of Quebec (38 Vic, chap. 04) is further illegal and unconstitutional, in permitting and providing R)r the piiyment of an annual stipend to ministers who have ceased to be members of, or to have any connection with the Presbyterian Church of Canada in connec- tion with the Church of Scotland, and in providing that the Temporalities Board, to wit, the corporation, Respondents, should, if necessiiry, draw upon the capital fund, to wit, the Tempoialities Fund, in order to provide for the payment of the stipends and salaries to ministers, as mentioned in the said last mentioned Act, and in providing that : "' As often as any vacancy in the Board for the manage- 40 " ment of the said Temixtralities Fund occurs by death, rtsignation or otherwise. " the beneficiaries entitled to the benefit of the said fund may each nominate a "• person, being a minister or member of the said United Church ; or in the event " of there being more than one vacancy, then one person for each vacancy and " the remanent members of the said Board, shall thereupon from among the per- " Hons so nominated us aforesaid, elect tiie person or nund)er of persons necessary '' to (ill such vacancy or vacancies, selecting the pei'son or persons who may be 31 and 30 hers lUlL'C- )!irtl, jpital tlu; lAct, bige- 4tl Ivise, Ite a /eut iind I per- Jsary be In the Superior (yOiirt, No. H. Petition and Order for '' iioiiiiiiated by the hvrgi'st iiuiubcr ol liciieficiarieH to iioniiiiate as titbresaid, tlio UECOIID. " reiiuiiu'iit iiii'inbers of the Board kIjuII fill up the vacancy or vacancies, from •' among the ministfrs or mcnilxrH of the said United Church," thus depriving a minister wiio may have rctiiined his connection witii the Presbyterian Chiu'ch of Canada in connection with the Cinnch of Scotland, of the right to administer the funds inidtr the control of the said corporation, Respondents, and disfranchising and dis(|ualifying all members of the said last mentioned Church from arlminis- teriug tile said fund which, of right, alone belongs to them; and further in set- I'nUinction ting aside the legal method for Hlling vacancies in the Board, Respondents, as und Writ of 10 prescril)ed by the said Act 22 Vic, chap. 00, and the By-Laws made thereunder. Injunction, That the said Statute of the late Province of Canada (22 Vic, chap. 00) is legally Ji':^„;^,b''cr and constitutionally in full force and effect, and the Respondents are subject to jj^jg its provisions and the By-Laws made thereunder by the said Presbyterian — continued. Church of Canada in connection with the Church of Scotland, previous to the fourteenth day of June, eighteen hundred and seventy-live, and by those mem- bers, ministers and elders of the said last mentioned Church, who remained in connection therewith, and who have not seceded therefrom on and since the fifteenth day of June, eighteen hundred and seventy-five, are now in full force. That the said Respondents have no power to apply the capital smn of one 20 hundred and twenty-seven thousand pounds, or the sum administered by them, to the payment of stipends or to any other purpose whatever, but the said sum and such other sums as should be contributed to it were intended to remain in- tact as a permanent endowment for the said Presbyterian Church of Canada in coiniection with the Church of Scotland ; as fully appeiirs from the Minutes and the Synod letter of the Reverend John Cook, hereinbefore cited, under the ex- })ress provisions of l)oth which the Petitioner surrendered his interests in the Clergy Reserves and their proceeds to the said Church. That the said Respondents had power only to use and apply the revenues, interests ar.d accruals of the said Endowment Fund, for the purposes mentioned 30 in the said Act incorporating the Board, Respondents. That the corporation, Res[)ondents. since the fifteenth day of June, eighteen hundred and seventy-tive, up to the month of December, eighteen hundred and seventy-seven, have drawn upon the capital of the said fund to the extent of the sum of forty thousand five hundred dollars and twenty-five cents ($40,500.25) illegally and in contravention of the said Act (22 Vic, chai). 00) of the hereto- Ibre Province of Canada. That the Reverend John Cook, Doctor of Divinity, of Qu"bec, the Reverend James C. Muir, Doctor of Divi»:ity, of North Georgetown, in the Province of Quebec, and the Rev. George Bell, Doctor of Laws, (L.L.D.) of Walkerton, in the 40 Province of Ontario, were comnnitors, and did connnute their claims, upon the saiil Clergy Reserves, and upon the funds arising therefrom, concurrently with the Petitioner, and under and subject to the terms of tlu; fundamental principles hereinbefore cited, [)assed by the said Synod on the eleventh day of January, eighteen hundred and fifty-five, but on and since the said fifteenth day of June, eighteen hundred and seventy-five, .the said Reverend John Cook, James C. Muir, and George Bell, did join with another religious association called the Presbyterian Church in Canada, composed of persons who previous to the said 32 i4 IIKCOHD. In the Superior Court. No. :i I'ctition iiiul Order for Injunction and Writ oi' Injunction, filed a 1st December 1878— .continued. M lirtL'cutli (lay ol' . J iiiK!, belonged to lour .sepiiiati! and distinct religions oigiiuisii- tions, and extending tiver various Provinces of the Dominion, nmler four sei)arate and distinct ecclesiastieul govornnients entirely unconnected with encli other, to wit, the Canada Presbyterian Church, tlie Presbytei'iaii (Jhunsh of ('anada in conn(?(!- tion with the Church of Scotland, the Chiu'ch of the Maritime Provinces in c(.»n- nection with the Church of Scotland, and the Presbyterian Church of the Lower Provinces, several nietnl)ers from each of which suid last mentioned religious or- ganisatious united themselves together in a new and distinct religious organisa- tion and association called the Presbyterian (Jluuch in Canada : that (he s.dd Reverends John Cook, James C. Muir and George IJell, on said lifteenth day of iii June, eighteen hundred and seventy-live, censed to be ministers thenceforward of the Presbyterian Church of Cauiida in connection with tlu? Church of Scothmd, and Petitioner avers that siu(: Reverends John Cook, James C. Muir and George Bell, have not been entitled to receive any benefits from the said fund, or to be paid :uiy sums of money jjy the cor|)oration, Respondents, by reason of tiieir having seceded from, and ceased to be ministers of the said Presbyterian Church of Canada in connection with the Church of Scotland. That since the said fifteenth day of June, eighteen hundred and seventy- five, the said corporation, Respondents, have paid to the said Reverend John Cook the sum of eleven hiuidred and twenty-live dollars, to the said Reverend 2(i James C. Muir the sum of nine hundred dollars, to the said Reverend Geoi'ge Bell the sum of eleven hundred and twenty-live dollars, out of the said iund, and the interest and revenues thereof, for commutation allowances by the said cor- poration, Resi)ondents, alleged to have accrued on sa.iil fund since the said fifteenth day of June, eighteen hundred and seventy-five, in favour of the .said Reverends John Cook, James C. Muir and George Bell, in their (piality as mem- bers of the Presbyterian Church of Canada in connection with the Church of Scotland ; tliough since the .said fifteenth day of June, eighteen hundred and seventy-five, the said Reverends John Cook, James C. Muir and George Bell, have been and are ministers of the said lunv organisation, styled the Presbyte- 30 rian Church in Canada. The Petitioner has reason to believe, and verily believes, that the corpora- tion. Respondents, will pay to tin; said Reverends John Cook, James C. Muir and George Bell, the sum of two hundred ami twenty-five dollars each, on or before the first day of January next, as connnutation allowances from the siud fund, to each of the .said last mentioned ministers, in their (piality as ministers of the Presbyterian Church of Canada in connection with the Church of Scotland, for the half year ending 31st of December, eighteen hundred and .seventy-eight. That preceding the fii'teenth day of June, eighteen hundred and seventy- five, the Reverend John Fairlie, minister of L'Orignal, Province of Ontario ; 40 the Reverend David W. Morison, Bachelor of Arts, minister of Ormstown, Province of Quebec, the Reverend Charles A. Tanner, of Richmond, Province of Quebec, amongst others, not being of the number of original connuutors, were not entitled to receive any allowance or stipend or reveiuie or emolu- ment of any nature or kind from said fund administered by said Respond- ents, under the terms of said statute 22 Vic, chai). 66, unless the interest, revenues and accruals on said fund, and contributions from otlier sources there- 88 Sil- uto nt, l!C- L»U- vor or- isiv- \f of 1(1 iird ind, ) 1)0 heir Liroh nty- Fohn rend 20 iorge , and cor- Hiiid said ncni- ih of [ and Bell, ijytC' 30 pora- and lefore id, to the for nity- lirio ; 40 |own, ince |itors, bolu- Lond- [ro8t, liere- tii, were siiniriont to allow tlic [)ayin«'nt of oerlnin allowances or oniolninentH llKCOllD. tliorufroni iiftor the deduction oftlie sninn payaMe to tin.' original eonnnutorrt. Tliiit the said Uevi-rend John Faiilie, Uevcivnd David W. iMorison, and Ucverend (Jharlcs A. Tanner, of Rielnnoiid, I'rovince of Quebec, have received from s dd ('c)r[>oration, IieH[)ondent>s, since the; fifteenth day of June, eighteen Innulred and seventy-live, for, and by reason of their connection with and _ No. H having been ministers of tlu' Presbyterian (Jhnrch of Canada in connection with th-' Cluinh of Scotland, sincu' tht^ said lifteenth day of June, eighteen Ih the Superior Court. I'otitioii aiK Order for iijuiictioii hinidred and seventy-livi', tin- sum of five hinidn d dollars each, to which hh'iI Writ of III said last mentioned ministers were not I'ntitled, both by reason of having ceased Injunction, to be entitled to the l)ene(its from the fund adnnnistered b}' said corporation, '''^'" ■^V'[ Respondents, undei' the terms of the resolution of the eleventh of January, i^7^_ eighteen hundri'd and llfty-live, the said Reverends John Fairlie, David W. coutinued. Morison and (jharles A. Tanner having ceased to be nnndjers of the Presbyterian Church of Canada in connec^tion with th«' (Jhurch of Scotland, and having joined the said Presbyterian (Jhurch ol' Canada as aforesaid, and because the revenues and interests accruing on said fund administered by said corporation. Respond- ents, w.r ' not sufficient to [)ay the saiil Rev 'rends John Fairlie, David W. Morison and Charles A. Tanner, any allowance or emolunu-nt whatever, after the 20 payment and si'ttlement of all legal claims upon the revenues of said fund, and said Reverends John Fairlie, David W. Morison and Charles A. Tanner, were not entitled, respectively, to said sums of five hundred dollars each, either from the revenues and interest or from the capital of s;ud fund so a'lmiinstered, as aforesaid by the corporation, RespomU'nts. That b}- the terms of the said Statute (22 Vic, chap. 60), incorporating the cori)oration, Respondents, it is provided that at the (irst meeting of the Synod of the said Church there should be elected, by the said Synod, seven meml)ers of the said Board, Respondents, of whom four should be laymen and three lainis- ters, all mendK>rs of the Presbyterian Church of Canada iu connection with the ;;o Church of Scotland, in place of two laymen and one minister, members of the said Board, who should then retire, and that thereafter two ministers and two laymen should retire from the said Board annuall}', in rotation, on the third day of the annual meeting of the said Synod, and that the place of the ri^tiring mem- bers of the said Board, Respondents, shoulil be supplied by two ministers and two laymen, bi-ing ministers or nieudjers in full comnuniion of the said Church, then to be elected by tlie said Synod. That on the fourteenth day of June, eighteen hundred and seventy-five, the following persons com|)osed the didy elected eligible nu'mbers of the said Board, Resi)ondents, entitled to administer the funds and property entrusted them under 10 the provisions of the said Act, as appears by the Acts and Proceedings of the said Synod Ibi' the year eighteen hundi'od and seventy-five. Rever nd John II. Macki-rras, Master of Arts, Professor "ii Queen's College, Kingston, Province of Ontario, the said Reverend Daniel M. Gordon, Reverend John Cook, D.I)., Reverend John Jenkins, D.D., Revei'end Gavin Lang, James Michie, Es([uire, merchant, Toronto, Province of Ontario, Alexander Mitchell, Ksquire, merchant, Montreal, Province of Quebec, William Darling, Escjuire, merchant, Montreal, Province of Quebi-c; the said Sir Hugh Allan, John L. Morris, Es([nire, Robert Denni^•toun, Esquire, and William Walker, Escpnre. I! RECOKD. /a tht: Siwvrior duurt. No. 3. I'utition and Order for Injunction and Writ of Injunction, filed HUt December 1878— continued. U Tlmt since lliu ilatc ul" the Haiti eiiacliiiciit, iiicor|)oiMtiiin)oii(leiit.s. slioiilil have retired thcreiVoiii at I'lich aiuuiiil meetiii}' of the Haiti Sviiod. That in the month of June, eij^htcen hnndietl and sevi-nty-Hix, the fol- lowing nienibei-H of the wuid Board, Rcs[)on(lentrt, by law ceaHcd to be nieniber.s of said IJoiinl, and shonld liave retired therefrom, to wit, the said Reverend John Jenkins, Reverend Gavin Lang, William Walker, Estiuire, and Robert Dennis- toun, Kstiuire. That in the njonth of Jinie, eighteen hnntlred and seventy -seven, the following members of the said Hoard by law ceased to be members of said Ki Boiirti, Responilents, and shouM have retiretl therefrom, to wit, the said Reverent! John Cook, Reverend Daniel M. Gordon, John L. Morris, Esti'.iire, and Sir Hugh Allan. That in the month of June last past, 1878, the following members of the said Board, Respontlents, by law, ceased tt) l)e members of tht; said Boaril, and should have retired therefrom, tt) wit, the said Reverend John II. Mackerras, William Darling, E.sqnire, and Alexander Mitchell, Esquire. That the ^renuiining member of the Board, to wit, tin; said James Michie, Esquire, lins secetled from the saitl Presbyterian Church of Caiuidn in connection with the Church of Scotland, and has joineil the said Presbyterian Church i)i 20 Canada, and has ceased to be a member of the Presbyterian Ciiurch of Canada in connection with the Church of Scotland, and has ipso/aclo vacated his seat jus a nieruber of the Boiird, Respondents, and the snid Reverend John Jenkins, Reverend Gavin Lang. William Walker, Esquire, Robert Dennistoun, Esijuire, Reverend John Cook, Reverend Daniel M. Gordon, John L. Morris, E.squire, and Sir Hugh Allan, heretofore members of the said Boaril, Reverend John II. Mackerras, William Darling, E.squire, and Alexander Mitciiell, Esquire, were not legally re-elected and appointed members of the .said Board, Respondents, and they and the remaining members of the said Board illegally pretend to exercise, and do in fact exercise and perform all the functions ;ippertaining to legally 30 elected iind appointed members of the said Board. That the said Reverend Jolui Jenkins, Reverend Gavin Lang, William Walker, Esquire, Robert Dennistoun, Esquire, Reverend John Cook, Reverend Daniel M. Gordon, John L. Morris, Esquire, and Sir Hugh Allan, Reverend John II. Mac- kerras, James Michie, Esquire, Alexander Mitchell, Esquire, and William D;irling, Esquire, aie not entitled to administer the said fund, or to be or remain as members of the corporation. Respondents, and should be removed from the saitl Board, and the saitl Respondents are not entitled further to administer the funds under the contiol of the corporation, Respondents, or to make any infringe- ment on the capital thereof, or to disburse the revenues thereof in any manner 40 whatever, the said Board being illegally constituted. That the said corporation, Respondents, have infringed upon the capital of the said fund under their management and control in the manner hereinbefoie indicated, and have illegally paid money, proceeds of the capital and revenues of the said fund in the manner hereinbefore indicated, without any legal power or authority so to do, and have illegally continued and pi.-rmitted the .said ReveremJ John Jeidvins, Reverend Gavin Lang, William Walker, Estiuire, Robert Dennis- toun, Esquire, Reverend John Cook, Reverend Daniel M. Gordon, Sir Hugh 85 itH. fol- R-TH )lin nirt- ihc said Kt said ure, tlu; aiul rras, cliie, ition •h in 20 ia in iVS il kins, [uire, uire, 11 II. L' not and ciac, ;;iUy ;}(• [,lker, d M. iMac- lliani ■main the thy inge- Inner 40 III of 'luie |us of iY or ireni] nnis- Lugh Allini, .lohn li. Moniw, Es(iiiirc, Kovorcnd .John II. MaikorraH, Williaiu Dar- 11EU(»KD. linjj, l!' Injunction, liled Itlst December 1878— ctmtinHcJ. .ijiifl Rohuii IViiniHtomi, Ks(|iiiri', Ri'verciiil .lulm (JtM)k, Ucvnoinl D.uiiil M. (loitlon, Sir Iluf^li Allan, .lolin li. Morris. Kstjiiiu', Uoverciul .lolm 11. MiickiM-ni.x. VVilliMin Dulling, Krt(|uiri', sinil AiuxandtT .Miiiilit'll, Es(|uiro, enjoining tlitnu ;in(l wicli of tliuin to apixar hutbro tliirt Ilononildi' (Jouit, or :i .hi'lgc tlicrcol, to uii.-twi-r tiu! prtwent petition That the Act of the Legisliiture of the Proviiicu of Qiiehee, intituled " An "Act to AniLiiil the Act intituled iin Ael t > iiieorponite thi; Moard forlhe Managc- ** incnt ol" the Tein|ior;ditii'f Fund ol' the I'l'esliytei'ian (!hurch of (Jaiiada in eon- " nection with the ('hureh of Scotland," [ja.-i.-^ed in the thiitv-eighth year of II i' Majefty'H reign (38 Vic. cliaj). ()4), may l)e a Ijudgi'd and d -elared to he uneou- lit Htitutional and illegil, and lie rescinded anrl revokeil, and that the .suhji-et matter thereof as therein pi'eseiited may he declaied to i>e altrn vircn of the; Legislature of the said l'ro\ inee of Quehee, and that it he declared ami adjudged, hy the judgment to he rendered upon this petition, that the said co:poration, Respon- dents, are acting ami taking proceeiling'^ h yond ih'ir [tow. r, anil witlntut ha\ing lullilled the foinialities pre.scrihi'd hy law, and l)y ihu Act ol Incorporation thereof, hy i)ermitting the .said last-nameil per.-ions to act as niend)ers of the said IJoard and of the said (Jorjjoration without having Ijeen electetl as uiendters of such Hoanl in the manner [>rovided l)y law and by the said Act ol'Incorporation, and fr'lu.'r, hy administering, intermeddling with and disbursing the finals and property of 20 the 8idd (Jori)oi'a.tion in a manner and for puri)osi'S not authorized by the said Act of Incorporation of the 22nd Vic. chap. 06; and by holding, adnunistering, dis- pensing and disposing of the funds and [)roperty of the said Cor[)ori;tiv)n, without lia\ ing ti sulHciint nundjer of mend;ers of the saiil ('ori)oration elected in the manner provided by law, and in the Act of Incorporation thereof, to constitute a ([uorum of the said Cor[)oiiition or of the .said Board. And that it i)e further ad- judged and declared that the said Rev. John Jenkins, Rev. Gavin Lang, William Walker, Esijuire, Robert Dennistouu, Es(juire, Rev. John Cook, Rev. Daniel M. Gordon, Sir Hugh Allan, John L. Morris, Estpnre, Rev. John 11. Maekerras, William Darling, Esijuire, and Alexander Mitchell, Esipiire, have no right or :w authority to sit, deliberatt', or act as meiidjers of the said Corporation or Board, and thereupon further prays that the said (Jorporation be by such jndginent re- strained from acting a)id proceeding in respect of the duties impo.sed upon them by the said Act of lncor[)oration of the 22 V^ic. elnq). bO, and from ag, liied or It ies and each and ail of them do I'oithwilii Huspend any and all acts and [)i'oeoeding« in their several tiii)aeities respectively ; in respect of the adniinistriition of the said I'liiids and property, and in respect of :dl matters in dispute in this ;!anse. In the. Sniwriitr Court. That it bi- a(l)iid;fed and dcciiiretl that the fnnd administered l»y the cor[)o- ration, Ucsponilents, amonntiiij^ to the smn of four hundred and sixty-three thou- sand three Jiinidred and seventy-one dollars and (ifty-two cents ($4{3'{,371.52), is a fniid held in tr.ist l»y them lor the heiielit of the I'reshyterian Chnrch of Cana- da in (ionnection with thf (Jhureh of Scothind, and for the hiMielit of the minis- ceased to he ministers thereof, and for no other pin'pose whatever, That the saiil Reverend John (Jook, Reverend .Jann s (J. Mnir and Reverend No. 3. I'ctiti.m ami Onlcr for [iijtiMction anil Writ of 111 terH and missionaries who retain their connection therewith and who have not •njancHon, fili'd aiHt Dcoonibor I uyu George IJell.l)',' declared to have ci'ased to he members of the I'resbyterian (Jhnrch rnntinmd, of Canada in connection with the Chnrch of Scotland, and not to be entitled to any .>nm of money or benefit from the funds as. for Plain tifl'. (Endorsed.) Appearance — Filed 31st January 1879. 20 " (Paraphed) G. H. K., Depy. P.S.C. No. 8. Appearance for Respon- dents, filed Hist J any 1879. Province of Quebec, > District of Montreal. ^ The Rev. Roliert Dobie Schedule No. 9. In the Superior Court. - Petitioner vs. " Board for the Management of the Temporalities Fund of the Presbyterian Chureh of Canada in connection with the Church of Scotland," . L<'y W/a (A LO I.I 1.25 ^ us, 2.5 2.2 2.0 1.8 14 III 1.6 V ,v t^ v> ^v l^?/'^^'^ fiy. ■'4 ■■'4 ,;! :■■' J itt: RECORD. In the Superior Court. No. llB. Affidavit of Jiinies Croil, filed with Petition for incrense of Security, iiled 5th Feby 1879. A"" Canada, Province of Queber, District of Montreal. The Rev. Robert Dobie, 60 Superior Court. us. Petitioner, " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," e/«/., --..-- Respondents. James Croil, of the city and district of Montreal, being duly sworn, de- poseth iind saith : 10 I was for over nine years, previous to the fifteenth day of June, eighteen hundred and sevcnty-five, business agent of the Presbyterian Church of Canada in connection with the Church of Scotland, and I anj ami have been for eleven years secretary-treasurer of tin; " Board for the Management of the Temporali- ties Fund of the Presbyterian Church of Canada in connection with the Church of Scotland." On the second of January last, when the writ of injunction issued in this cause was served upon the said Board, amongst other securities it held city of Montreal six per cent bonds, amounting at their par value to ($206,000.00) two hundred and six thousand dollars, of which ($U6,000.00) one liundred and 20 forty-six thousand dollars currency have matured and become due. That the eftect of the said writ of injunction, if allowed to remain in force, will be to prevent the said Board from reinvesting the said sum of ($146,000.00) one hundred arid forty-six thousaml dollars, which they could do in safe security at seven per cent hiterest per annum, whereby the said Board will sustain a loss and damage of ($10,220.00) ten thousand two hundred and twenty dollars per annum from the first day oi May next. That if this ca«e goes to the Court of Appeals, Su^jreme Court and Privy Council in England, as it may do, prolonging proceedings for several 3'ears, the damage suffered by said Board from loss of interest alone on said sum ($146,000.00), 30 one hundred and forty-six thousand dollars will be very considerably increased, and might reach even the sum of ($60,000 0) sixty thousand dollars or even more. That the interest per annum on the balance of said city of Montreal bonds and stocks which are not yet due, to wit, on ($74,200.00) seventy- four thousand two hundred dollars is ($4,504.00) four thousand five hundred and ninety-four dollars, the loss of interest on whioh per annum is ($321.58) three hundred and twenty-one dollars and fifty-eight cents, which, if proceedings in this cause are prolonged, as above stated, may amount to over ($1,500,00) one thousand five hundred dollars. 40 That in addition to said sum the said Board hold invested the sum of ($88,500.) eighty-eight thousand five hundred dollars in Montreal Harbor bonds, paying six and one-half per cent interest per annum, amounting to ($5,752.50) five thou- sand seven hundred and fifty-two dollais and fifty cents of interest per annum. That by virtue of said writ of injunction, said Board will be prevented from receiving said amount of ($5,752.50) five thousand seven hundred and filty-two 51 10 40 Iroiu kwo dollars and fil'ty cents, and from investing the same at seven per cent, which they could do, wlierel)y said Board will sustain a loss and dnmage of ($402.64) four hundred and two dollars and sixty-four cents per annum in interest, which, in case of iippeal as above, might be increased to ($2,000.00) two thousand dollars or even more. Tliat in addition to the foregoing the said Corporation also held on said second of January last (466) four hundred and sixty-six shares of stock in the Merchants' Bank of Canada, which, at that date, were worth at market quota- tions seventy-nine cents on the dollar, and which havt depreciated to seventy- 10 ibur cents on the dollar, the loss oecivsioned by such depreciation being ($2,330.00) two thousand three hundred and thirty dollars. And the said Corporation also held on said second of January last (326) three hundred and twenty -six shares of stock in the Consolidated Bank of Canada, which on that date were worth in the market fifty -seven ct nts on the dollar, but which now have depreciated to forty -eight cents on the dollar — the loss occasioned by such depreciation being alreatly ($2,934.00) two thousand nine hundred and thirty-four dollars. That the position of all bank stocks, including those above mentioned, is very uncertain and vnrj'ing from day to day, and the s.iid Board, as Trustees, 20 have been constantly watching the markets with the view, if deemed advisable, of selling the whole or part of said stocks and reinvesting the proceeds in mort- gages or other safe security, but the said Board owing to said injunction are prevented from administering the said stocks or realising the same, and as said stocks have a *^endency to go still lower, may sustain a loss in depreciation which might amount o the whole sum invested in said stocks or ($70,200.00) seventy- six thousand two hundred dollars. That in consequence of the present injunction the said Board and Respond- ents are prohibited from paying any of the stipends to ministers entitled to re- ceive the same, in consequence of which said Respondents are liable to be sued 30 in separate actions for the said stipends, and the said Respondents may thus be subjected to heavy damages in the shape of interest and costs of suit to an amount estimated by deponent at not less than ($20,000.00) twenty thousand dollars. That the whole of the above losses and damages which the Respondents may suffer by reason of said writ of injunction and order .amount to ($159,700.00) one hundred and fifty-nine thousand seven hundred dollars. And I have signed. James Croil. Sworn and acknowledged at the city of Mimtreal, in the Province of Que- bec, before me, this first day of February, eighteen hundred and seventy-nine. 40 , Andrew J. Slmpson, A Connnissioner Superior Court, District of Montreal. (Endorsed.) Affidavit of James Croil— Filed 5th February. 1879. (Paraphed) G. H. K., Depty. P. S. C. RECORD. In the Superior Court. No. llB. Affidavit of Jiimcs Uroil, filed with Petitiou for increase of Security, filed 5th Feby 1879 — continued. RECORD. In the Superior Court, No. 12. Answer to Pi'tition, filed 12th Feby 1879. Caimda, Province of Quebec, District of Montreal. The Revtl Robert Dobie, 52 Schedule No. 14. In the Superior Court. OS. " Board fur the Manaj^ement of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland" et al., The said Respondents - and Petitioner. ft ft Respondents. Petitioners. 10 And the said Reverend Robert Dobie for answer to the petition ir. this mattjr presented by the Respondents said : That t'le Honorable Judge who fixed the security to be given by the Peti- tioner, the Reverend Robert Dobie, at the sum of twelve hundred dollars, was fully capable of estimating what costs and damages the Respondents might suffer by reason oi" the said writ of injunction, and that the sum fixed by him was ample and suflfici<'nt to cover such costs and damages. And the said Petitioner, the Reverend Robert Do'jie, further saith : That the said Respondents by making the application they did make after 20 the return of the said writ for additional security waived an» the Superior Court. That Jis regards the stock iield in tlie Merchants' Bank of Canada and the Consolidated Bank of Canada, the said Robert Dobie saith : That the said Board have held the said bank stocks for sc verai years, 10 during which time the stock has depreciated more than forty per cent., and yet tile said Board have not tln)Ught it advisable to change the said invi'st- uients, and that in fact, the said stock has risen in value sine-' the second day of January last, and that the said stock in the Merchants' ijank of Canada ;.s now worth seventy-nine anil a hall cents on the dollar, and the said stock in the Consolidated Bank of Canada is worth iifty cents on the dollar. That the pretended danger of damages resulting from non-payment of sti- pends is altogether too remott.- and problematical, and that moreover the said Boiird will have a good legal justification for refusing to pay said stipends, to wit, having been forbidden to do so by the said writ of injunction, and that no action 20 could be maintained by any ministers for their stipends against said Board. And the said Reverend Robert Dobie hereby declares his willingness that such minis- ters as still belong to the " Presbyterian Church of Canada in connection with the Church of Scotland," and have not seceded from that Church may be paid their stipends (the whole without prejudice to the pretensions of said Reverend Roltert Dobie as set forth in his petition), and as to the others the said Reverend Robert Dobie saith : there is a valid reason why they should not be paid. Wherefore, the said Reverend Robert Dobie prays that the said petition may be hence dismissed with costs. Montreal, 12th February, 1870. 30 Macmaster, Hall & Greenshields. Attorneys for Petitioner. No. 12. Answer to Petition, filed 12tli Feby 1879. — continued. Canada, Province of Quebec District of Montreal Superior Court. The Reverend Robert Dobie Off. Petitioner. " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Sa)tland," e< a^., - - - Respondents. 40 Robert M. Esdaile, of the city and district of Montreal, clerk, being duly sworn, doth depose and say : , : That he knows of the cor[)oration Respondents. That he is credibly informed by the Reverend Gavin Lang, one of said Respondents, that said Board have held the bank stock, styled Merchants, and No. 12a. Affidavit of Robert M. Esdaile, filed with Answer to Petition. RIR ^™ wm ft ! ■■I ;t ■v *|: RECORD. Jn the Superior Vour!. No. 12a. AfiBdavit of Robert M. Esdailc, filed with Answer to Petition. — conthiH.d. 54 those of the (Consolidated Biuik of Canadn, in th(! jiHidiivits of William Darling and Jnuies Croil, for upwards of five years and have never made any sale or transfer thereof. Th;it furthermore siud Board. lie8[)ondeMts, held seven hniidre(l and one shares of said Merchants' B;ink Htcx;k on the thirty-first day of January, eighteen hun- dred and seventy-live, and the said Board hold now, nccording to the last state- ment of said Bank list of shareholders in the month of June, eighteen hundred and seventy-eight, four lumdredjmd sixty-six shares, b.'nts and members in all parts of the country. And I have signed, Gavin Lang. Sworn and acknowledged before mo at the city of Montreal, this fifteenth day id of February, eighteen hundred and seventy-nine. Theo. Doucet, 0. S. C, L. C, district of Montreal. (Endorsed.) Affidavit of Rev. Gavin Lang— Filed 15th Februarv, 1879. (Paraphed) G. H. K., Depy. P.S.C. n ' *■ 1 H- No. 17. Notice to Respondents that addi- tional secu- rity will be given, filed 28th Feby 1879. Canada, Province of Quebec, District of Montreal Schedule No. 19. Superior Court. 20 No. 2100. The Reverend Robert Dobie, V8. Petitioner. " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland " e< at , - - . . . To Respondents. John L. Morris, Esq., Attorney for said Respondents, excepting the Rev- erend Gavin Lang and Sir Hugh Allan : Sir, You are hereby notified by the Petitioner, under reserve of his rights, that 30 over and above the security by him already given, he will give additional secu- rity to the extent of three thousand five hundred dollars, under the terms of the fourth section of the fourteenth chapter of the Statute of the Province of Que- bec, passed in the forty -first year of Her Majesty's reign, for the cfjsts and damages the said Respondents may suffer by reason of the issue of the writ of injunction herein, i-.nd as required by the judgment herein rendered on the nine- teenth day of February instant, said security to be given to the satisfaction of one of the Honorable Judges of the said Superior Court, sitting in chambers at the Court House, in the city of Montreal, on the twenty-eighth day of Februjiry in- stant, at half-past ten of the clock in the forenoon, and you are further notified 20 59 thai tlic luiiiu'S of tli<3 pursoiiH who will be tluni iuid tliore oft'ored U) give «ecu- rity lire Jowoph Iliekson, liiilway iiiiuiagcr, and Jjunos S. Hunter, notary, both of the city and district or Montieal. Montreal, 20th February, 1879. Macmastkr, Hall & Gkeknsiiields, Attorneys tor Petitioner. (Paidorsed.) Notice— Filed 28th February, 1870. (Paraphed) H. H. & G., P.8.C. (< To Schedule No. 19a. Superior Court, Montreal. 21 00. Reverend Robert Dobie, .... vs. Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," et al., 10 Canada, Province of Quebec, District of Montreal. No. - Petitioner. Respond 2nt8. UKCORD. In the /Superior Court. No. 17. Notice to llt'.^pondenfjs that addi- tional Heou- rity will be giyen, filed 28th Feby 1879.— continued. No. 18. Notice that security for costs will bo given, filed 28th Feby 1879. 20 Sir, John L. Morris, Esq., Attorney for said Respondents, excepting the Rev- erend Gavin Lang and Sir Hugh Allan : Notice is hereby given you by Petitioner, under reserve of his rights, that in accordance with the judgment herein rendered on the nineteenth of February instant, he will give security for the costs that may be incurred by the said Respondents by reason of the action of the said Petitioner, apart from the coats and damages that may be incurred by the issuing of the writ of injunction here- in, before the Prothonotary of the Superior Court, at the Court House, in the city of Montreal, on Friday, the twenty-eighth day of February instant, at half- past ten o'clock in the forenoon, and that the names of the persons who will 30 then and tiiere be offered as such sureties are George Graham, merchant, and William Currie, both of the city ansbyteriiin Chui'-h of Canada in connection with the Church of Scotland et ah, ...... Respondents. John L. Morris, Esquire, Attorney for said Respondents, excepting Sii Hugh Allan and the Reverend Gavin Lang. You are hereby notified that security wjis this day duly entered as required by the judgment of the Superior Court, of the tentii of February instant, requir- 40 I 4 HI iiijl iulditioiiiil security lor the costs Jiixl dimiiigcs tliiit niiiy occur to Rcspomlcnts hy rcusoii of the issue of the writ of injunction herein, to the mnount of three tliousand five hundred (h)lhirs additional. Montreal, 28th February, 1875). Macmastkr, Hall & Ghkknshiklds, Attys. for Petitioner. (Duly received copy and notice.) John L. Mohris. Attorney for Respoiulents. la pjxcept Rev. G. Lang and Sir Hugh Allan. (Kndoraed.) Notice that additional security has been i)ut in by Petitioner — Filed 28th Febiuary, 1870. (Paraphed) H. H. & G., P.S.C. RECORD. In thv Unprrinr (hurt. No. lllA. Notice that iidditional .security has been put in by IV'titioo- cr. filed 28th Fcby 1879. — continued. Caiuida, Province of Quebec, District of Montreal The Rev. Robert Dobie Schedule No. 22. Superior Court. 20 va. Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in aninection with the Church of Sa)tland," et oL, ------ Petitioner. Resign dents. No. 20. Petition of Respondents that order for Wri^ of Injunction &c. be dis- solved or suspended, filed 8rd March 187&. To the Honorable the Superior ( 'ourt for Ix>wer Cainida, district of Montreal, or to any one of the Honorable Justices of the said Court in and for th(i district of Montreal. The petition of the Res[)ondents, without waiver of their right to plead to the merits or otherwise in this matter, but on the contrary, reserving to themselves all their rights. Respectfully sheweth : 30 That the said Dobie is not and never was a minister of the Church of Scot- land, as untruly alleged by him in his said petition. That the petition in this matter made by the Reverend Robert Dobie, and the affidavit.*! in support thereof, upon which the writ and order issued herein, do no contain a true statement of the facts. That the original cap'* ■' sum obtained by the Synod of the Presbyterian Church of Canada in conn' ;i .vith the Church of Scotland from the commu- tation of the Clergy Resei ^:, money was (£127,448 5s. Od.) one hundred and twenty-seven thousand four hundred and forty-eight pounds five shillings. That only eighty-four ministers, including the Petitioner Dobie, had claims 40 upon it. I' i' RECORD. /ii the Hupvrior Court. No. -JO. Petition of Kespoiidenbi that Older for Writ of Injunction &c. be dis- solved or suspended, tiled ;{rd MiuelilSTit. — contiinicif. . 62 Tlint it was about the year eighteen hundred and fll'tv-si.'<, iigreed bv j^U of said niinistervS and by said Synod, that the claims of all ministers on said i'und should at their death revert to said Synod, and said Synod has always since up to the 15th of .Iiine, eighteen hundred ;<:id seventy-live, with the consent of said Dt)bii', controlled and administered said fund through the said Board. That the sole interest which >' vear eiiihteeii hiiiulred and (iftv-three, and I remained a minister of the said Chiireh from that time until the said (Jhiirch in the year one thousand ei^lit hiindred and seventy-live, joined to itself and united with the other l*resl)yteiia.ii ('hiindies of (Janada, at the same time chang- ing its name to that of the I'reshy terian ('lunch in Canada, and since thai time 1 have remained and still am u minister of said (Jlinreh. 2. 1 am one of the original commuting ministers of the I'lvsbyti'rian 'W Church of Canada in connection with the (Jhiirch of Scotland, who commiiti'd my claim upon the funds arising from the (Jlergy lieseives iis mentioned in the ])etition of the said [Kobi^rt DoI)ie, and I have a perwonul knovvledgi' of the i)ro- ceedings connected with the reniineiiition of rights of miiiistets of the Clergy Reserves Knnd to and in favor of the Prehbyterian Chnrcii of (Jaiiada in connec- tion W'th the Church of Scotland. 8. Tlie .said connnntation was negotiated and carried out l)y His E.xoel- lency the Governor (Jeneral of (Jniada in Council, on the one part, and commis- siiaiers appointed by the .said Synod U) lepreseiit them on the other part, and in the treaty res|iecting the said commutation it was distinctly stipulated and agreed :j(i lietween tli<' parties that the said commutation should be negotiated and carriod out with the Synod of the said Church as a body and not with individual minis- ters ol' the .siiid Cliundi, and His E.NcelleiKry the (Governor in Council ileclined to make commutation with iiuiividual mini.sterH of the said Church, although in two ca.scs he was petitioned .so to do. 4. The amount received l»y the Synod of the .said (church as and for the said commutation allowance was one hundred and tweiitv-seveii thousand thr.-e hundred and twenty-seven pounds, si.xteen shillings and four pence. The nnmiii'r of ministers who then had claims upon the .said fund was eighty-four, and it wa.s then agreed by the members of the said Synod that the 4(1 said sum of nuMiey should lie and it was funded lor the benelil of the waid Church, and that tlie onlv right and interest therein >•*' eiu-h of the said minis- , ters should be to receive a certain annuity therefro: u'ing his lifetime, and that subject to su(;h right, the said tund should be and remain a connnon fund for the use and nmU'r tlie conlnd of the said Chui<;h. 0. Siibseiiuently in tlie years one thousMud eight hundred and lifty-seven and one thou.sand eight hundred and lifty-eight, the said S}nod caused proceed- N.i. -'Oa.. Aftiiliivit of the l{(!V(l. .Idliii Hu<;li .MiickiiiTiis, lili'd with i'etilioii for ilic ilLssolii- lioi) or ,sii.s- IH'ii.sion of ordor for Writ of Injunction. :i;J m I i RECORD. ■1 In the J Superior \ Court. ij No. 20a. ! Affidavit of 1 tlie Revd. \ Jolin Huiili i' Mackorras, M tiled with ''[ Petition Cor I tlie diissolu- tion or sus- poiision of order for \^ Writ of fi Injunction. 5' — continued iliJ. ■ jt, m 1 i L m ings to be takon, whereby the Statute ol" ihe bite Province ol' Canada, twenty -two Victoria, chapter sixty-.'six, was piissed tor the luanageinent ot'tlie srvid t'lind, and ever since that time '' The Board lor tlie Management of the Tenii)oralities Fund of the Presbyteriiin Church of Canada in connection Witli the Church of Scothiiid," (Constituted \)\ the said statute, have wii.h the connent and approval of the said Svnod controUed and administered the said fund. 0. The said Dobit- continued to be a member of the said Synod up to the lifteenth (hiy of June, one thousand eight hundrfd and seventy-five, and up to tiiat date he liad always !is a member of the said Synod assented to and ac(iuiesced in tne management of the s.iid fund by the said Board. 10 7. From the vear one thousand ei}j;ht hundred and sixt\-five to the vear one thousand eight hun(h'ed and seventy-five, I was clerk of tiie Synod, which was the Supreme Court of the Presbyterian Church of Canaand eight hundred aid .seventy-live, duly c.dled and constituted according to the law and practice of th(! said Church, after due 20 notice and consideration and in pursuance of negotiations which had extended over a period of live vi-ars, resolved and agreed to join to itself and become united with ceitaiit other Pr. shy toiiaii Churches, to wit, the Canada Presl)yteriaii Church, the Presbyterian Church of the Lower Provinces, and the Presbyterian (,'burch o*' the Maritime Provinces in connection with the Church of Scotland. JL In pursuance of the said resolution and agreeinent the saiil Synod and the said Presbyterian Church of Canada in connection with the Church of 67 Scotliuul represented Uy and acting thnr-'b the said Synod, its supreme and RECORD. iiiu;he.«t court, vvhos^e decision was the decision of the said Church, and bound all /J.I the nienihers thereof 1)V all rules of Presbyterian nolitv and procedure, unless . , * . any dissenting member chose to secide from it as did said Dobie, on said fifteenth VWr/. of June, eighteen hundred and seventy-five, joined to itself and united with the said other l*resl)Vtirian Churches, it beiii"' at the same time declared, agreed and ^"^ ^*'a. imderstood tiiat the united Church, so formed, should be considered identical with ^ .«'*' i the Presbyterian Church ol" Canada in connection with the Chuich of Scotland, .}^),h fju,",j, and should possess the same privileges, rights ami benefits »o which this last- Macker. s, 10 mentioned Church was then entitlrd, as appears by the formal i.'solution of said *ilcd with Synod and Act of Union contained upon i)agi's thirty-five and forty -one of the |''l!"" I certified copy of the mimites of said Synod, at its session in Jime, eighteen hnn- ;„„ or suh- dred and seventy-five, which I herewith anne.x and certify to be a correct copy of pension of the original written record and minutes of said Synod, which I kept as its duly order for appointed clerk. w'Uhn 12. The only ministers of said Clun-ch, Ixsides the said Reverend Robert —continucff. Dobie, at said session of Synod in Jinie, eighteen hundred and seventy-five, who refused to act with the said Church and Synod in effecting such union, and who thereupon seceded from the said Synod and from the Presbyterian Church of Can- 20 ada in connection with the Church of Scotland, were the Reverend WiUiam Simpson, the Reverend Robert Burnet, the Reverend David Watson, the Reverend John Davidson, the Reverend Thomas McPherson, and the Reverend John McDonald. 13. The rights ol tlie said Dobie and other commuting ministers are fully protectt'd and guaranteed by the said legislation and by the acts and proceedings of the Synod and the said Temporalities Board, and it was and is the intention of the legislation, acts and proceedings albresairl, fully to protect, preserve and guar- antee such rights. 14. The capital necessary to secure those rights has not been trenched upon 3(1 by the said Board, nor is there any intention on the part of the said Board to trench upon it. 15. In the year one thousand eight bun Ired and forty-four the Church of Scotland, through the Colonial Committee of the General Assenibly of the said Church, recognised the absolute indei)endence of the Presbyterian Church of Ca- nada in connection with the C'hurch of Scotland, and disclaimed the right to exercise any authority or control over the last-mentioned (Jhiu'ch^ and declared that she had never possessed nor desired to possess any such right. 1 0. That the words '* in connection with the Church of Scotland," in the name formerly used 1)3' said Church have always had the signification, and no other ^0 signification, than that given to them by th<' Declaratory Act of the Synod of said (Jhurch, passed and adopted by them in the month of September, eighteen lumdred and forty-four, said Synod being the Supreme Court and highest autho- rity in said Church, and decl.aring that said Synod had always ix)ssessed, and then ix)ssessed ai;d e.xeicised, a perfectly free full final supreme and uncon- trolled power of jurisdiction, discipline and judgment over said Church and over all congregations and ministers in connection therewith, without the right of review, appeal or complaint, or reference by or to any other Court, and that the t 11 ^1' RIlCORD. In the Siijurior Court. No. 2(lA. Affidavit of tlu' Hi'vd. Joliii Hu^h .Mackeiras, lik>(l with Petition tor tiie dissolu- tion or sus- pi'iisioii of (irdor for Writ of Injunction. — cuiitiniii'if. 68 words ill connection with tliu Church of Scothuul implied no right ul' jurisdiction or control in iiny Ibrni wiiiit.socvcr li\ the said Cliiucli ol" Scotland over said Synod, hut di'iiotcd merely the connection ol' origin and identity of standards, and niinisteiial and (.'hurch comnuniion. 17. That said supreme and tree jurisdiction was a I'mulamentnl and essential part of the constitution of tin* snid Synod, and all ministers and probationers for ordinaticjii or induction into any [)astoral charge were retjuired to give their assent thereto, as did the said Petitioner. And 1 have signed. J. li. Mackkrkas. Sworn to and acknowledged before me, at the city of Kingston, in the Pro- vince of Ontario, this 3rd day of February, eighteen hundred and seventy-nine. J. N. Hkndekson, A Commissit)ner ibr taking atlidavits in the Province of Untaiio, to be used in the Province of Quebec. (Endorsed.) AlHdavit of the Revennd John Hugh Mackerras. 10 No. ;JOb. Kxtmcts from tho Acts and Proceed injfs ot the Synod of the Pres- byterian Church of Ciinada in connect inn with till' (Jhurdi of Scotland. Session xlix. Bejiun Jit Montreal, 8th .June, 1875. Annexed to tiie Affidavit of tlie Ixevd. John IIu^ii Mackerras. Annexed to the iididavit oi' the lieverend John Hugh Mackerras are the Ibllowing cxtiiicts : THE :i() ACTS AND PROCEEDINGS OP T H E S Y N O I) OF THE PHESnVTKRIAN CIIURCII OF CANADA IN CONNECTION WITH THE CHURCH OF SCOTLAND. SE^.S/ON ALLY. Begun at Montreal, Sth June, 1875. Kingston : Printed bv William Bailie, ■ 1870. no ()9 MiNUTKs OF SvNoi), Mdmukal, Junk 14vu, 18To. KXTKACT. An'iUKjeii.tiiln for ConsaininiitioH of I'luitn.. Mr. ('aiiiphc'li (Moiitical) , iil)inittc whicli this (Miurch is now entitled, e.vcepting such as have been reserved by Acts (»f Parliament. And further, with the view of ratifying the Act of Union, the Synod does empower its Moderator to sign in its name the preainl)le and basis of union, and also the resolutions adopted in connection therewith. To this it was moved in amendment by Mr. Carinichael (Markham;, and seconded by Mr. W. \\. Ross, That aftvr the word '" author. ty" towards the close of the above motion or prop'osed minutr, the follovving be inserted : — And that the ministers, congregations, theological and literary institutions embraced in the A<-,tH relating to the Uruoii of the Presbyterian Churciies in the Dominion t)f Canada, entering into the said United Church irom the Presl)yterian Church of 4(t Canada in connection with the Church of Scotland, shall enjoy the rights, priv- ileges and benefits to which they are now entitled. A vote having been taken, the motion was carried over the amendment by an overwhelming majority, ami the Moderator declared accordingly. From this decision Mr. Dobie and others dissented ami craved the following to be entered in the minutes, viz. ; , ilECORU. //* thr Superior Court. No. 20i«. lOxtrMtts I'lOlll llu! Acts and l'r(>coodiuj;s III' till' Synod of the Pres. bytiriiir Cliurcli of Canada iti eonneclion with tlic Cliurcli of Sc-otland. St'fssion xlix. Bejrun :it Montreal, 8th June, 1875. Annexed to the Affidavit of the llevd. John Hugh Miickerras. — coiifinued. « 70 RECORD. Jii the Sii/itiior (\ntr- No. L'Oli. Extnicts t'nim tlio Acts uiid I'l'i'dtnliiigs (if till' Synod III' ilif Fns- Ipylt'i'iiin Cliurcli ol Ciiiiada ill c-iiiiiioctidii witli tlic Cliuvcli of Scotland. Session xlix. Begun iit M out real, 8th Juue, 1875. Annexed to the Affidavit of the llevd. Jolin Hiifih Miickeri'iis. — confiniial. '• We, inijiistors and I'ltU'fs, iiU'iiiMcis ol' thin SyntxJ, lioiirtily i)Hiu;lieil to the Cliuidi. luTt'ln (li.s.'eiit Ironi tln' P-sohiiixii of thi.H Court to rcpii • to the Victoria lIiiU lor tlic piii'posc of cousiiiiimiitiir^ tlh' proposed Union with tlie otiier l*risl»y- ifriiin liodics ;>nd thrrchy tn fniui the (nncrnl Asscnnhly ol' the i'r« ^hytei'iiUi Chinrli in Cunndn. We fnrtlt( r proti»t against the declanition timt the United Clinrch shiiil Ix- cunsidend id'Hticul with the I'lcsbytcrian (Jhurch of (Jaiuida in (onncction ith ihc Chnich of Seothmd, inasiniieli as this Synod lias no power jtf)' milhini, to ile(;hii'e otliei' IJodi'S in addition to itself to he possessed of the rights, piivileges and l)enetits to which this Churtih is now entitled. We decrlare, therefore, (iiir eoiitiinied attachment to the Presbyterian Church of Canada in Id conni ction with the ('lunch of Seotland and do hereby enter our protest iiiiaiust the empowering of the [iresent Modi rator to sign in its name the preand)le an(i basis of Union and the resolutions connected therewith. And, further, we, niiiUH- teis uiMi elders of this 8ynod, holding views opposed to Union on the present iiasis, do pi'otest against tb^ carrying out of thecoMtem|»hited arrangementH (or tin; consummation of the profiosed Union, and declare that, if consummated, we will claim ami continue to be the Presbyterian Church of Canada in connection witli the (Jhurch of Seothmd." (Signed) liOBERT UoBIE, Wm. Simp.^on, HoHEHT Burnet, Dav. Watson, j. s. muli.an, Wm. McMillan, Thomas McPiiekson, KoDERICK McCrIMMON. John Davidson, John Macdonalo. 20 Minutes of Synod, Montreal, June 15th, 1875. 1 extract. :{(i At Montrtiil, and within \'ietoria Hall, there, Tuesday, the (ifteenth day of June, one thousand eight hinidred und seventy-fivc years, at ten min- utes l)eliire eleven o'clock in the i'orenoon : Which (\\\\ and hour the S\ nod of the Pi'esbyterian Clnu'ch of (janachi in connection with the (Jhurch of Scotland met i)in'suant to adjournment, and was (constituted with [)rayer. When the mend)ers (Composing the General Asseiubly of the Canada Presby- terian Church, the Synod of the I'reslnterian Chuivh of the Mai'itime Provinces in connection with the Church of Scotland, and the Synod of the Presbyterian Chiircii (.f the Lowi r Provinces, had also conv<'ned in this jilace, devotional ser- 20 vices were conducted by the Moderator of this Court, Princij)al (javeii, D.I).. Moderator of the General Assembly of the Canada Presbyterian (^'hurch, and the Rev. J. M. Grant, M.A., Moderator of the Synoil of the Presbyterian Church of the Maritime Provinces in connection with the Church of Scotland. ti Tho tninute, .'wloptod iit Moiidti} "s diet, agreeing to the roiismnniiitioii of [Iiiioii, iiiiil instructing the Moderator (o -ign tho Articles of Union, wmh rciul by tiie cUmU. Till' |)riMnil)le, I) sis iind ;ieconi|):ni\ ing resolutions which form the Articles of Union were signcti In the Modciator, ilie inen»l)ers of Synod signifying thcii- assent liy standing np whiU' tln' Mndcriiti i' ainieided his signaturi'. Thereafter the Modci'ator presiding for the occasion, with the consent and concurrence o( the other Moderators, the Rev. I'. J. McCJregor, Moderator of the Synod of the Preshyterian Chnndi of the Fiower I*rovinces. lieelarcd the (Jhnrches 10 named in the aloresaid niiiuitt- to he now imited in one (Jhnrch rcpresentiMl by this itH lirst General Assenddy, to be designated and known as The General Assembly of the FUKSBVTKHIAN ClIURCH IN CANADA. (On the i)ack.) I certify this to be a correct copy of the written Record, J. H. Mackerras, Clerk, Synod. 20 Kingston, February 3rd, 1879. KKCOHD, //( ihf Superior (hurt. Canada, Province of Quebec, District of Montreal, The Reverend Robert Dobie, vSuperior Court. - Petitioner. vs. '• Board for the Management of tho Temporalities Fund of tho Presbyterian Clnirch of Canada in connection with the Church of Scotland," r/ ((/., - - - Res[)ondents. I, .lames S. Mnllan, of Osnabruck, in the Province of Ontario, being duly 30 sworn, de[)ose ami say : That I was ordained a minister of the Presbyterian Church of Canada in connection with the Church of Scotland, in the year (181)1) eightecin hundred and sixty-on<', and continued to act as such, and to be a member of the Synod of the said Church up to the (15th) lifteonth of ,lune, eighteen hundred and seveiity-livo. when thc^ said Church, acting by the autlun'ity of and ihrough its Synod, joitjid ti> itsilf and unitrd vvith the other Presbyterian Churches of Can- ada, and changing its name to the Presbyterian Church in Canada, at tho same time derlaring by its formal resolution and act of union, that the said united Church hihould be considered identical with the said Presbyterian Church of Can- 40 ada in connection with the Church of Scotland, and should possess the same .\o. 20b. Kxtracts from the Aet(< iiml I'rococdiii^'s of till' Synod of the Prt's- byteriiin Church of Cunada in connection with the Church of Scotland. Session xlix. Begun at Montreal, 8th Juno, 187.5. Annexed to the Affidavit of the Ilevd. John Hugh Mackerras. — continued. No. 20c. Affidavit of Rev. Junie.s S. Mullan filed with Petition for the dissolu- tion or sus- pension of order for Writ of Injunction. ■r 'i-> I: I RECOHD. Ill thr Hunrrior Court. No. 2(k'. Affiiliivit ol' Rev. Jimii'f* S. Mullim tiled willi rctition fill- tlie tlis.solu- fion or su«- jieiisioii I'l' Older lor Writ of Iiijunetidn. — atiiliiiiiid. 12 authority, riglita, privileges mikI lu'iiofits to wliich tlie Hiiiorior Court. The Reverenil Robert Dobie, Petit louer. vn. IJoii 'd lor the MaiiMgomciit of tlie Ti'inporiilitii's Fund of the Pivsbytoriiin (Jhnn^h of Ciiniida in i-onncclion with the (Jhmcli of Scotliind," rf til. KespondentH. .John Cook, Docitor ol' Divinity, now residing in thi' city of Quebec, being 10 duly Hworn, deposeth and saith : I am now and have Ixton for upwards of forty-two years, minister of St. An(h'ew's Church, in the sidd city of Q.ii-hec. haviuij; been (M'daincd a minister of the Church of Scotland and adi'dttcd to tin' charge of St. Andrew's <.'hurch, afore- said, by the Presbytery of Dumbarton, in Scotland, in Decend)er, eighteen hun- dred and thirty-live. Tiiat on my arrival in Canada in the following year I was received as a niendier of the l*resbytery of Quebec, and of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotlami, of which body I was two several times moderator. '^0 That in the year eighteen hundred and lifty-live I was appointed (Convener of the Connnittee of said Synod, charged with the duty of negotiating with the Government of Canada a comnnitation of the salaries or allowances of ministers chargeable for life, or duri?ig their intannbency, on the Clergy Reserve Fninl, and in that capacity received I'owers of Attorney from individual ministers to act for them, and was authorised by said Synod to give the sanction of the Church to the connnutation which was actuallv elfeeted. That the Act of the heretofore Piirliament of Canada, twenty second Victoria, chapter sixty-six, was obtained at the instance of the Synod, to incorporate a Board for tlie management of the said Fund, to wit, the Board Respondents, of which 30 Board I then became and have ever since been a member. That to the best of my belief the two allegation.s on which the })etition of the Reverend Robert Dobie proceeds, to wit, that on the fifteenth day of June, eigh- teen hundred and seventy-live I and others named in said petition seceded from the said Presbyterian Church of ('anada in connection with the (Jhnrch of Scot- land, and ceased to be members thereof, and that he the said Dobie is now a mendjer of the Presbyteriiui Church of <.'anada in connection with the (church of Scotland, plainly implying that he ileems the small minority which on the said last men- tioned day se[)arated themselves from their l)rethri'n, and still are, the true Presbyterian Church of Canada in connection with the Church of Scotland, are 40 l)oth the one and the other without foundation, and, as 1 believe, likely to mislead the (>)urt. Forasnuicii as it consists with my certain knowledge that the Presbyterian Church aforesaid was from its connnencement an independent body, iulinitted to be so in a letter from the (Colonial Committee of the Cluu'ch of Scot- land addressed, in the year eighteen hundred and forty-four, to the moderator and miMubers of the Presbyterian Church aforesaid, which expressly states that "The Church of Scotland Inus never claimed any authority, nor exercised any KKCORD. In the iiiipcrtor Loiirl. No. 20i). Affidiivit oF the Rev. John Cook, I). D., tiled with Petition for the dissolu- tion or 8U»- I)en:.ion of order for Writ of Injunction. m ■iif KKCORD. In (he. Superior Court. No. 20i). Affidavit of tlic Uov. JoliD Cook, D.D., Blod with Peti- tion (or tlio diuHoiutiou or Husprn- Hion oi" order for Writ of lujuiietion, — condnuvd. 74 control over your Synod, neither Iuih wlie ever jxwHewsed, nor lU'wired to posscHw, ihe right of any Hiich interforence," luid foniHiniu^li also aH by thi^ rtanic Synod to wliich the foregoing letter wuh addressed, to wit, in eigliteeu hinuh'od ami forty-four, was paHHed an Act (h'claring the indt^x'ndenci; of the said (jhurcih in the terms stited and set forth in the petition of Mr. .Fohii L. Morris, lle.> Synotl obtained the Acts of the Provincial Legislatures of Quebec and Ontario as set forth and cited iu 20 the aforesaid i)etition of Respondents' Attorney. In going into the said Union I did honestly believe, and do still believe, that I continued to adhere to the said Presbyterian Church of Canada in connic- tion with the Church of Scotland, yielding due submission to those rides of ecclesiastical procedure l)y which the Synod, ui common with all other Presby- rian bodies, had been, and still are, wont to be governed ; and such 1 do believe to have been the persuasion and conviction of the great majority of the Synod, and in particular of the commuting ministers belonging thereto. It was competent for the small minority of the Synod to organize themselves according to their pleasure, and to assume such designation as suited them ; but 3(i in no sense could they assume to be tho body whose authority they ceased to acknowledge and from which they seceded. The petitioner Dobie assumes that in any such Union as was eftected the Synod must necessarily cease to have that coiniection with thi Church of Scot- land which previously subsisted. But that connection, consisting, as has been showri, simply iu origin in identity of stan lards and in ministerial and Churcii communion, has not ceased. The same standards are still recognized, and there is the same ministerial and Church ajmmuuion. The united Church receives members and ministers of the Church of Scotland, and the Church of Scotland receives members and ministers who formerly belonged to the said Synod and 40 who went into the Union, in the same way anil to the same extent as it did before the Union, witness the reception of the Reverend William Black, late of the city of Montreal, and of the Reverend Dr. Snodgrass by Presbyteries of said Church of Scotland, as ministers of parishes in the said Church, the reception of the latter, namely, the Reverend Dr. Snodgrass, being the more remarkable, as it was in utter disregard of an official announcement from the said Dobie's pretended Presbyterian Church of Canada iu connection with the Church of Scotland, that it had deposed the said Dr. Snodgrass from the ministry. 76 U' HOHH, i\nil ;)i ill 'hiisli fully t the 11(1 as (k-ii- gi-i'iit , vo to II the iiticiil ' Scot- litH to mI the lod ill 20 jlieve, DUIK'C- iles of 'i-esbv- lolieve iynod, M elves ; but 3(1 se d to Ah iHdongiii^ to the United (Jhureh, whieh i^ mow, hh I believe, in law and f.ict idiMitifiil with tlu; I'leHbyteriuii (Jhureh of (Jaiuuhi in connection with the Church of Scotland, I do verily believe that L am entitled to act aH a member of the TemponditieH IJoiird and to ndniinister the Fund intrusted to itw nire in con- formity with the? said Acts of the I'rovinciial Ije^fisluturcH obtained at the re(iue«t of the Synod, and by the termw of which the ii tiled with I'etition for the dis.ohi- tioii or sus- pension of order tor Writ of Injunetion. — conth'xud. That 1 liiivo boon a Prosbytovian olorgyman for about twoi..,y-llvo yoars, and havo mado niysoll" tboroiigbly liuuiliav witli tho I'rosbytoriaii oi'cUt and polity, iind bavo a I'lill knowK'dgo of what is (^oinpotont to I'rosbytorian Kcob^siastioal Court.s, to wit, tlio Kirk Sowsion, tbo Prosbytory, tbo Synod and the GononU As- sembly. That on tbo twonty-nintb of May, oigbtocn biindrod ami sovonty-ono, by si)ocial !U^t Jind grac(! of tbo (lonoral Assombly of tbo Cbinvb of Scotland I was niJido and oonstitiitod by a iiniininioiis voto of said (lonoral Assembly a minister or olorgyman of tbo saiil (.'burcb of Scotland, wilb all tbo rigbts and privileges pertaining to clergymen of tbo said (Jbiircb, iind tbat I now bold tbat i)osition 10 and statns as fully and com[)letcly as any otber clergyman of tbo said (Jbiircb of Scotland. Tbat tbo siiid Synod ol tbo Presbytoritin Church of (Janaila in connection with the Cbin'cb ol' Scotbuid, hy its resolution, Miitliorised the i)resent adminis- tration and dis[)osition of tbo saiil Temporalities Fiuid, and tbo obtaining of tho legislation which has been obtained with reference to said fimd. Tiiat the said Teni]H)ralitii's Board, mentioned in tho petition in this nnitter of the Reverend Robert Dobie, have boon sin(!o tho fifteenth of .lime, eighteen hundred and seventy-;ivo, and are now acting under the authority of an Act passed by the Legislature of the Province of Quebec, to wit, ibirty-oighth Victoria, 'M cbai)ter sixty-four, assented to on tho twenty-third of February, eighteen hun- dred and seveiity-live, intituled " An Act to Minend the Act intituled An Act to Incorporiite the IJoard for the Management of the Temporalities Fund of tho Pres- byterian Cbiu'cb of Canada in connection with the Cbm'cb of Scotland," and under tbo authority of an Act passed by tbo Tjogislature of the Province of QiUibec, to wit, tbirty-eighth Victoria, cha[)ter seventy-two, iissonted to on tho twenty- third of February, eighteen hundred and seventy-live, intituled ''An Act respect- ing the Union of certain Presbyterian Cbur'.bes therein muued, and also under the authority of an Act passed l)y tlu^ Legislature of the Province of Ontario, to wit, tbirty-eighth Victoria, chai)ter seventy-live. ;j() That the said Synod obtained the i)assing of the said Acts. Tliat the said Reverend Robert Dobie's statement, as contained in bis peti- tion in this matter, to wit, tbat be, the said Dobie, when ho came to Cantida in the yetir eighteen hundred and lifty was "an ordained missionary of the Church of Scotland " is not true, as >iaid Dobie's ordination took place in Canada, and then not until the seventh day of ()cti)l)or, eighteen hundred and fifty-three, on which day the Presbytery of Glengarry did ordain the siud Doldo as minister of Osna- bruck, in the now Province of Ontario. That it is not triu; tbat the said Dobie, as tho said Dobie avers in bis })cti- tion aforesaid, is or ever was ii " minister of tbo (Jburch of Scotland," lie having 40 been merely a licentiate of said (Jbuicli, wliicb, according to the polity of said Church, as be, the; said Dobie. very well knows, is a jiosition difl^ ''out from and altogether inferior to that iK)sition which is held in said Church by an ordained minister. Tbat the Presbyterian Church of Canada, in connection with tho Church of Scotland, was from its commencenient an independent body and a voluntary asso- ciation, and was admitted to be so by the said Church of Scotland in Scotland, in i 77 :iml lity, Lioiil As- was is tor legos itiou 10 ch of ctiou liuis- 1" tho latter liteou w Act ;toria, 20 huii- Vct to : Prea- ' iind uebec, renty- si)oct- inuler rio, to 30 |)cti- iulii in liurch ll then Iwhich Ofina- poti- javing 40 If sivid In and lained Indi <)l" asso- Ind, in or a lottiT from its Colonial Connnittcc, addrosscd in the year cightcHMi linndred and llE(H)lin. rorty-lbnr, to the inod'Tator and members of the said Presliyterian Church ol' Cii- uada in connection with the Chnrcii of Scotland, which expressly states that '* the ' . Church of Scotland has never el. timed any authority or exercised any control cimrf. over your Synod, neither haa she ever possessed or desired to possess the right of such mlerference." No. 20k. That in the month of September, eighteen hundred and forty-four, the Synod ^ . '.['y"^ "' being the supreme and highest (!ourl and authority of said "Presbyterian Church ,jo|,„ of (Canada in connection with tlu' (Jhunih (>•' Scotland," passed and a(lo|>ted a De- JonkinH, DD 10 claratory Act, declaring that said Synod had always po.s.sesseil and then posst\ssed ''''"l with and exereised a perfectly free, lull, fnuil, su[)reme and uuc.)utrolied power of juris- , ['V.''" J" diction, discipline and judgment over said Church and over all congicgations and ,j„,, or j.^^. ministers in connection therewith, without the right of review, ai)[)ual, or com- ju'iision of plaint or reference lO any other Court, and that the words '• in connection with "'■j^v''' '*','■ the (Church of Scotland " implied no right of jurisdietion or control in any form J^l'^''^. whatsoever by tin; said Church of Scotland over said Synod, but denoti-d merely "''.""/;!'!"'/ the connection of origin and identity of standard and ministerial and (Jhiu'ch comnumion. That said supreme and free juri.sdietion was a fundamental and essential 20 part of the constitution of the said Synod and Church, and all ministers and proba- tioners for ordina*"' . or induction into any pastoral charge were re(|uired to give their assent to said Declaratory Act of independence, as did the petitioner Uobie, on the seventh day of October, eighteen hundred und fifty-three, when he was or- dained to the office of the ministry l)y the Presbytery of Glengarry, aforesaid. That when, in eighteen hundred and sixty-Uve, I was inducted into the pastoral charge of St. Paul's Church, afoi'esaid, 1 did, as one of the conditions of 80 being inducted, solemnly adhere to the said Declaratory Act of independence, passed in September, eighteen hundred and forty-four. That it is untrue that the Rev. John (^ouk, the Rev. James C. Muir and the HO Rev. George Bell seceded from the Presbyterian Church of Canada in connection with the Church of Scotland, as alleged by the said Dobie in ins petition. That the said Church, on the lifteenth of June, eighteen hundred a!)d seventy- live, legally, and acting through and by the authority of its Synod or supreme and highest Court and of the said iVcts above recited, joir^d to itself and united with the other Presbyterian Cburches of Canada, chan"gTrrg-itS irinnir(as it had a right to do by virtue of the supreme and free jurisdiction, which was a fundamental and essential part of the constitution of the sidd Synoil and Church) to the Pres- byterian (.'hurch in Canada, leaving i)ut the words, " in coiniection with the Church of Scotland," and declaring that it retained its itientity and all its pro- 40 pcrty, rights and privileges under the name of the Presbyterian Church in Canada. That by the rules of Presbyterian procedure and church government of the said Church, no Synod can exist unless it number fifteen members, of whom eigiil shall be ministers and seven may be elders. That on the fifteenth of June, eighteen hundred and seventy-five, before the said union and change of name of the said Church had been siccomplished, and while the said Synod of the said Presbyterian Church of Canada in connection /. waf9f ■'.m 78 M i llECOUD. i/t the Superior Court. No. 20e. Affidiivit of the Rev. John Jenkins, DD filed with Petition for the cli(<.«olu- tion or sus- pension of order for Writ of Injunction. — continued. with the Church of ScotliiULl was still in session, the said Dohi ; and six other ministers and two ekkrs seceded fioni the said Chuich iind Synod, and ilh j;ally, without having a rjuorum ot'fil'teen members, pretended to constitute themselves as the Synod ol' tlu' said Presbyterian Church of Canada in connection with the Church of Scotland, which said last-mentioned Synod was then legally in session in the city of Montreal, so that the state. nent of the said I)ol)ie, that he and the other ministers who seceded with him as aforesaiil, constituted and do now eA)n- stitute the Synod of the Presbyterian Church of Caiuida in connection with the ('hurch of Scotland and belong thereto, is a pretence wiiich, as I believe, is cal- culated to "islead and is designed to mislead your Honorable (yOurt. lo Tiiat in the year eighteen himdred and liity-livu, it was agreed by the said Dobie, and by nil the ministers who had comuuited their claims to the Clergy Re- serve Fund in favour of said Synod, that they should cease to have any claim on or be entitled to any share of said comnuitation fund whenever they should cease to be ministers of said Presbyterian Church of Canada in connection with the Church of Scotland, as appears by the authentic minutes of said Synod for the said year. That by virtue of the Laid Dobie's secession from said Synod and Church as aforesaid, on said fifteenth of June, eighteen hundred and seventy-live, he would have lost all right to claim from said Board any payment from said fund, or any right or claim thereon had it not been for the generosity of the Sj'nod of the said Church from which he seceded, which obtained the passing of the said Acts above recited previous to said Union and change of name, one of the provisions of which is to the eft'ect that all ministers who chose not to remain in the Church after said union should, nevertheless, be entitled to be paid the stipend from said fund annually, during life, which they had formerly been in the habit of receiving. That the said Board have not infringed upon the amount of capital of the said fund necessary to secure the said Dobie the payment of his annual stipend during life of ($450.00) four hundred and fifty dollars, which is all the interest au which the said Dobie htis in said fund. That according to the rules of proceedure and i)olity of the said Presbytei'ian Church of Canada in connection with the Church of Scotland, the said Church al- ways acted through its highyjst court — the Synod, and the voice of the majority voting in said Synod, was always held to be the voice and finding of said Church in which the minority are bound to acquiesce, and the same rule applies in all other Presbyterian Churches, namely, that the decision of the majority expressed in the highest Church court binds the minority and the whole Church. I also state that the said Prtsbyterian Church of Canada in amnection with the Church of Scotland, still exists and maintains its identity in the Presby- 40 terian Church in Canada. Further, the said Church and Synod have the same connection with the Church of Scotland in Scotland which existed previous to said Union, that connec- tion consisting, as has already been shewn, simply in origin, in identity of stand- ards, and in ministerial and Church communion. The same standards are still recognised and there is the same ministerial and Church communion. 79 Tlie unitcMl Church roceivos members iind ministers of the Church of Scotland, and the ^n, and was admitted to be so by the said Church of Scotland, ui Scotland, 3(i in a letter from its Colonial Connnittee addressed, in the year eighteen hundred and .forty-four, to the moderator and members of the said Presbyterian Church of Canada in connection with the Church of Scotland, which expressly states that " the (^h'urc!; oi Scotland has never claimed any authority or exercised any control over your Svnod, neither has she ever possessed, nor desires to possess the right of such iiiterference." That in the month of September, eighteen hundred and forty-four, the Synod being the Supreme and highest Con it and authority of said ''Presbyterian Church of Canada in connection with the Church of Scotland," pas.sed and adopt- ed a declaratory Act declaring that said Synod had always possessed and then 40 possessed and exercised a perfectly, free, full, final, supreme and uncontrolled power of jurisdiction, discipline and judgment over said Church and over all con- gregations and ministers in connection therewith, without the right of review, appeal or complaint, or reference to any other Court, and that the words in con- nection with the Church of Scotland, implied no right of jurisdiction or control in any form whatsoever by the said Church of Scotland over said Synod, but denoted merely the connection of origin and identity of standard and ministerial and Church communion. 81 Tlijit said Hiipronic luid free juri.sdiotioii wuh u rundiiincntiil and oHscntial KKCOllD. part of tlio coii.stitutii)n of the .said Synod and Church, and all ministers and probationers for ordination or induction into any pastoral charge were required to ^ " 'V'^ give their assent to ^aiil declaratory Act of independence, as did the petitioner on Court. the seventh d.vy of October, eighteen hundred and (ifty-three, when he was ordain- ed to the ollice of the ministry by the Presbytery of Glengarry. ^o- ^•'*'' That it is untrue that Hie Reverend John Ci In the Supertur Conrl. No. 2nK. Affidavit of the llcv. Robert Campbell, filed with Petition for the dissolu- tion or sus- pension of order for Writ of Injunction. — conHnued KECORl). fmni said fund sinmiiiUy during life which they had formerly been in the habit of receiving. That the f^aid Board have not infringed upon the amount of capital of the said fund neceHsary to .secure the .said Uobie the |)ayinent of hi.>< annual .sti[)end during life of ($450. UU) four hundred and lifty dollars, which is all the interest which the said Dobie has in .said fund. That according to the rules of procedure and polity of the said Presbvt<>rian Church of Canada in connection with the Church of Scotland, the said Chinch always acted through its highest Court, the Synod, and the voice of the majority voting in said Synod was always held to be the voicf and finding of said Church lo in which the minority are bound to ac([uie,soe, and the same rule a[)plies in all other Presbyterian Churches, namely, that tin- decision of the majority expressed in the highest Church Court, binds the uiinority and the whole Cburch. I also state that the said Presbyterian Church of Canada in connection with the Church af Sjtland, still exists and maintains its identity in thi.' Presbyte- rian Church in Canada. Further, the said Church and Synod have the same connection with the ] Church of Scotland, in Scotlanil, whicli existed previous to said union, that con- ! nection consisting, as has already been shewn, simply in origin, in identity of standards and ill ministerial and (yhurch communion. The same standards are a(i still recognized and there is the same ministerial and Church communion. Tile united CTiufch receives lUt-mbers and ministers of the united Church in * Scotland, and the said Church of Scotland receives members and ministers who belong U) the said Synod of the Presbyterian Church of Canada in connection v/ith the Church of Scotland, and who went into the said union, in the same way, and to the .sime extent as it did before the union, as witness the reception of tin- Reverend William M Black, late of the city of Montreal, and of the Reverend Doctor Snodgrass, who took a leiuling part in i)romoting the said union, by Pres- byteries of said Church of Scotland, as ministers of parishes in the said church. The rece[)tioii of the Reverend Doctor Snodgrass being (he more remarkable as an it was in utter disregard of an official announcement from the said Dobie's pretended Presbyterian Church of Canada in connection with the Church of Scot- land, that it had deposed the said Doctor Snodgra.ss from the ministry. Further, this deponent believes that the present injunction on the part of said Dobie, is an attempt to become posses.sed of the whole of the said Tempora- lities Fund for himself and his pretended Synod, and to deprive a large body of ministers of rights equally sacred with that which has been carefully and faithfully preserved and guaranteed to him. And I have signed. Robert Campbell. 40 Sworn and acknowledged before me, at the city of Montreal, this thirtieth day of January, eighteen hundred and seventy-nine. Andrew J. Simpson, A Commissioner Superior Court, district of Montreal. (Endorsed.) Affidavit of the Reverend Robert Campbell. 8:i )it, hf ml est inn rcli ity ,rch 10 all <8ed tritli yte- the con- jV of 3 are 2(» ch in who action I way, )f th.' erend Pres- imroh. ble as ao obie's Scot- Lrt of lipora- body ly and 40 U'tieth btreal. Caiiadii, ) 'roviiictM)!' Quebec, V Ustrict of Montreal. S I' Dist Schedule No. 23. Superior Court. The Rev. Robert Dobie, - Petitioner. OH. '* Board tor tiie Management of the Teinporalition Fund of the Presbyterian Cliurch of Canada in connection with the Churcii of Scotland," Respondents. JO The Petitioner the Reverend Robert I)ol)ie, for answer to the petition of all the Respondents, cxci-pt the Revere'id Gavin Lang and Sir Hugh Allan, who acquiesce by tln-ir declaration herein filed in the Petitioner'.-* pretension, says : That all tlie allegations of Respondents' petition which do not agree with the allegations of Petitioner's petition herein and this his answer to Respondents' petition are untrue, and Petitioner denies each and all of them ; That all the matters alleged l)y Petitioner in his petition herein are true, but that the issues there raised cannot be ilisposed of on a petition to dissolve or suspend the writ of injunction herein; and the matters and things set out in Respondents's petition form the subject of a plea in answer to Petitioner's petition 2(j herein and the Respondents have pleaded the same matters in their plea filed herein. That it is untrue that in eighteen hundred and fifty -.six it was agreed that the claims of comnniting ministers at their deaths should revert to the "Synod" of the Presbyterian Church of Canada in connection with the (Jhurch of Scotland, as falsely alleged in said petition ; but, on the contrary, the claims of individual ministers connnuters, at their respective deaths reverted to the Temporalities Fund, to wit, the permanent endowment Fund created in eighteen hundred and fifty-five for the said Church by the renunciation of the pers(mal claims of Peti- tioner and other conniuitors to the capital sums which he iind they were then 3Q respectively entitled to receive from the proceeds of the Clergy Reserves, aiui the acceptance by Petitioner and the other commutors of a reduced annual allowance therefrom, to wit, the sum ol four huudred and fifty dollars annaially, instead of six hundred didlars, which the capital sum they ami each of them were personally entitled to receive would yield during his and their natural lives respectively, at a legal rate of interest. That it is untrue that the Synod of the said Church has since the year eighteen hundred and fifty -.six or fifteenth of June eighteen hundred and seventy-five, with the consent of Petitioner, " controlled and administered said Fund." as falsely alleged in said Respondents' petition ; but, on the jQ contrary, the Commissioners appointed in eighteen hundred and fifty-five by the said commuting ministers to hold said Fund in trust, with the consent of .s\id Synod, and subse(iuently delivered over the said Fmul to the Board Res- pondents, iucoi'porated under the Act twenty-two Victoria, chapter sixty-six of the late Province of Canada, which said corporation "since its incorporation" held and administered the said Fund until said fifteenth June eighteen huudred and seventy-five, in trust for the said Church and its ministers and members, and are llECOHD. In the /Superior Court. No. 21. Answer to Petition to ((uash Injunction filed 14th March 1875) RECORD. In the Siij>erlor Court. No. 21. Answer to Petition to Injunction, filed 14th March 187i) — vonttnued. m\ 84 alone legally competent to liold and administer the same, and the preHent Resixjndents are not legally wmpetent and entitled to hold and administer the said fund. That in eighteen hundred and fifty-two Petitioner was a minister of the Churjh of Scotland, in Scotland, and then and there was elected and appointed by the Church of Scotland and by the Reverend John Cook (one of the deiKjnents in support of the petition to (juash the writ of injunction) and the Reverend A'"xander Mathieson, both delegsiles of the Synod of the Presbyterian Cliurih of Ciuiaiia in connection with the Church of Scotland, and of the Clergy Reserves anil Commissioners, as a minister and a missionary from the Church of Scotland lo to its connection Church in Canada. That the Presbyterian Church of Canada in connection with the Church of Scotland and the ministers thereof, frequently and at divers times from eighteen hundred and thirty-one until eighteen hundred and seventy-five, claimed to be and were, not merely a branch of the Church of Scotland in Canada, but the Church of Scotland in Canada, and were during said period at divers times recog- nized and acknowledged to be the Church of Scotland in Canada by the General Assembly of the Church of Scotland and its Colonial Committer, by the Acts of the Imperial and Canadian Provincial Parliaments {vide three a;; 1 four Vic- toria, chapter seventy-eighth, section 5) and by the Synod and r». '.esentatives of 20 the Synod of the said Presbyterian Church of Canada in connection with the Cinircli of Scotland ; and Petitioner declares : That it was only by reason of the identity and connection of the said Presbyterian Church of Canada in connection with the Church of Scotland — with the Church of Scotland, to wit, one of the established churches of the United Kingdom of Great Britain and Ireland, that the said Prtsbyterinn Church of Canada in connection with the Church of Scotland and its ministeid btcame and were entitled with the Church of Englar.d and its ministers to share in the proceeds of the Clergy Reserves in Canada, to the exclusion of all other x^resbyterian bodies laying claim thereto, though pro- fessing identity of standurds and belief with the Church of Scotland. 30 That the fund co 'stituted by the commutation of the claims upon the Clergy Reserves of Petitioner and other ministers of the Presbyterian Church of Canada in connection with the Church of Scotland is and was a permanent endowment created from Mie procteds of that portion of the said Clergy Reserves accorded and granted by the Crown to the said Church of Scotland in Canada, to wit, to the said Presbyterian Church of Canada in connection with the Church of Scot- land, and were and are solely for the support and maintenance of said Church and of the ministers and missionaries thereof; and the said Synod never had any power to change the destination of the said fund or its revetmos; that the coramutors of claims had no power to alter the destination of said fund nor 40 even the revenues thereof, saving only the surplus revenues thereof, as more fully explained in Petitioner's petition. And the said Fund was created and continued and is a permanent endowment in trust for the benefit of said (!hurch for all time to come. That Petitioners interest in said fund is not merely personal, as errone- ously declared by Respondents, but is also the interes*, of the constituent of a trust constituted and established by hiia and otbi^rs for a specific purpose in be- 85 'lit he the ted illtH entl ti of 'vea >!md 10 ;hof teen be , the ecog- iieral Acts ■ Vic- /es of 20 1 the )f the ectiou ;, one eland, rch of ...^^..A ida, U) h pro- Clergy mada ment 30 GOV rded wit, to Scot- hurch er had at the d nor 4U more id and Ihurch errone- it of a in be- half of an object iiiDrc prccioUH to T'ctitioner thiin money— the mainteiiaiice aind jjennancnt ciiilowmn'^ of tlic Hiiid I'reslivtcrian (!lmr('h of Canada in connection with the (Jhiirch of Scotland — to which oltject l*etitioner has not only devoted tlif capital Kum to which he wns entitled personally from Lhe said Cler;^y Reserves in eighteen huiKh'cd and lifty-live, and restricted himself to a reduced allowance therefrom for his lifetime, but also gave thereto his life and his humble though best elVorts as a minister of the said Church. That di'ponent is in good faith in instituting the present action, and is not acting fnmi any malicious motive, but is a(^ting [)crsonally and as the representa- 1(1 tive ■' many others in dill'cicnt parts of Canada, witii the cimciu'renee of all the ministers, mcmlx-rs and adhennts of the I'l-esbyterian Chmeh of Canada in con- nection with tlu^ Church of Scotland and of the Syntxl thereof. That the individual RespomU'Uts, saving only the Respondents Sir Hugh Allan and the Reverend Gavin Lang, seceded and left the said Presbyterian Church of Canada in connection with tiie Church of Scotland, on the fifteenth June, eighteen hundred and seventy-five, and joined themselves to the Canada Presbyterian Church and certain other Bodies professing difterent standards of belief from those adhered to and taught and enjoined in the said Presbyterian Church of Canada in connection with tiie Ciiurch of Scotland and with them con- 20 stituted and found a religious denomination identical with the Canada Presbyter- ian Church which virtually absorbed the seceders into it, under the name of the Presbyterian Church in Canada. That the meeting of the Synod of the said Presbyterian Church of Canada in connection with the Church of Scotland was duly called and held in St. Paul's Church, Montreal, on the fourteenth and fifteenth June, eighteen hundred and seventy -five: Tbot Petitioner protested against all resolutions proposed and car- ried, to give effect to the secession from the said Presbyterian Church of Canada ill connection with the Church of Scotland, both by protests filed ecc 1 esi as ti willy and by the ministry of a notary — copy of those protests is herewith filed as 30 Exhibit M.N. — yet, notwithstanding, the Respondents and divers others, men- tioned in Petitioner's petition, left said St. Paul's Church and went to another building in the city of Montreal, to wit, to the Victoria Skating Rink, and united v.itli the said Canada Presbyterian Church and other Bodies; but Petitioner and many others remained in saiv' St. Paul's ( 'hureJ! and then continued legally and regularly the proceedings of said Synod, and adjourned; and have since regularly met and carried on the business of .sud Synod until the present time. That R(!spondent.s are illegally infringing upon and deteriorating the capital of the said trust fund and hove done no since the fifteenth June, eighteen hundred and seventy-five to the extent of over P'orty thousand dollars; 40 That the Synod of the said Presbyterian Church of Canada in connection with the Church t)f Scotland, has no power and never liad power by resolution or otherwise, to affect the civil rights of Petitioner, and the said Synod never had any other independence or control through or by means or' the Declaratory Act uf (1S44) eighteen hundred and forty-four, referred to in Respondents' petition, tluui in matters "spiritual and ecclesiastical" to wit: matters coming strictly within its own confines; but the Petitioner expressly denies that the said Synod ever had power 't)y majority or even unanimously to affect his civil rights, or to HECOIU). Ill the iSnprrior Court. Nb.21. Answer to Petit iod to KijUnotion, tiloa l-ttli iMal-cii I87!» — Continued. ISiJt.! "I ••I I!/ ,0 •i;.' I' i «! i \ "Wf ^» 1 RB(X)Rl). Stmerior dourt. No. 21. Answer \n Petition to rjunxh Injunction, filed 14tli March 1879 — continued . m iirrogatn to itflelf rights of cotitrol which it did not and could not poHscss, or to chivngo or vary the tcrniH of a trust rcgnlatud by Act of l^arliannMit and by the tcriUK of its creation, whi(;h expressly prohibited the inteileriiice ol" the Synt)d without the consent of the conunutors, to wit, the a^nstituciits of the trust funds; and the Respondents have been and are ncting iUe^tally and unconstitutionally, under said Actrt of the Legislature of the Province of Quebec. That in the years eighteen hundred atid forty-four and I'orty-live, a secession of certain niinisters from the Presbyterian (.'hurch of Canada in connection with the Church of Scotland took pi nee ; that said last-nienlioned seceding ministers objected to remain in connniniion with the Presbyterian Church of Canada in Ki connection with the Church of Scotliuid, chietiy on thi> ground of the latter Church's connection with the Church of Scotland. That said last-mentioned seceders took the name ot the Presl)ytorian Church of (^'anada and professed to be identical with and to adhere to the same standards and belief of the Church of Scotland, and claimed the right, upon this last ground, to participate in the proceeds of the Clergy Reserves ; but the Presby- terian Church of Canada in connection with the Cliurch of Scotland objected to such participation, on the ground that the sec(.'ders had left the Church of Scot- land in Canada ; and the law officers of the Crown in (janada, in eighteen hundred and forty-five, maintjiined this objection, and all the allowances which 2(i the said seceders had drawn from the Clergy Reserves were henceforth discon- tinued to such seceders, and continued solely to those adhering to the Presbyterian Church of Canada in connection with the Church of Scotland. That the individual Respondents and other seceders mentioned in the Peti- tioner's petition herein are in no better position than were the said .seceders from the Presbj'terian Church of Canada in connection with the Church of Scotland in eighteen hundred and forty-four also eighteen hundred and forty-live. That the terms of the agreement entered into by the commuting niinisters in eighteen hundred and fifty-five were expressly framed to prevent seceding minis- ters from being eligible, after secession, to participate in the benefits arising from ;!0 said fund and to preserve said fund solely and only for the benefit of those who maintain and continue their connection with the Presbyterian Church of Canada in connection with the Church of Scotland. That t'ne right to participate in the Clergy Reserves was granted and con- ceded to the Presbyterian Church of Canada in connection with the Church of Scotland, on the grouml that said Church was identical with and the only repre- sentative church in Canada of the Church of Scotland as an establisheii church of the United Kingdom. That the said Respondents are acting illegally in their administration of said fund and have ))aid large suras of money to persons not eiititb'd to receive the 40 same, and should be restrained until the final d'terminatiou of the present suit That the whole fund administered by Respimdents would be endangered beyond repair if said injunction were dissolved or suspended. That Petitioner has given security in a large sum of money for all costs and damages that may be occfl>*ioned by reiuson of saiil injunction. That the Act of the Province of Quebec mentioned in Respondents' petition under and by virtue of which Respondents pretend to be acting, tire illegal and 87 r to the nod illy, (sion with stevH la in 10 utter lurch diirds ■i hirtt resby- tL'd to Scot- ;htoeu wliich 211 liscon- teriau e Peti- •s from and in iters in mini.s- liv iVoni :iO lid con- Urch of reiH-e- Ichurch of said |ve the 40 isuit Ingered Ists and Utition lal and In the Superior Court. No. 21. unconstitutioniil ; hut neither tlje said Act or tln' AetH of the Province of Ontario RKCORD mentioned in .s:iid [)utiti()n can lie put in is.sue upon a petition to diudolve or huh- pend an injnnetion. That the naid Act of the Province of Quebec (thirty-r of hiMiefieiiirioM t(» " iioiiiinatf, an tilorohiiiil, the rciMiiiu'iit iiu'inl)t'i*H til" the Hoiird mIihU lill up thr viic- " ancy or vaoancii'.^ iVoiii among the mini«ti rs or iiit'iulMMs oftlu'.snid iiiiitodcliiircli," thus depriving a iirnii.>revious to the thirty-first day of December last past, issuiid checks to ministers for the payment of allowances, ami those who wished [>reseMted the same for payment and received 3i) payment ; that the .^aid Petitioner has not presented his check for such payment, though deponent did under protest. Thut no iulditional i)ayments or allowances will become due to ministers having claims on said Board until the month of July, eighteen hundred and seventh-nine. Wherefore, the Petitit)ner prays that the .siid Respondents' petition be dis- missed, and further prays, as in and by his petition he has already prayed, the whole, with costs of suit and exhibits, diufniits, to the undersigned attorneys. Montrt'al. 13th March, 1879. Macmastek, Hall & Greenshields, 40 Attorneys for Petitioner, the Rev. Robert Dobie. And the said Petitioner, the Reverend Robert Dobie, without waiver of the foregoing answer, but reserving to himself all the benefit thereof for further an- swers to Respondents' petition, says : That each, all and every the allegations of the said petition of the Respond- ents are false, untrue and uufoanJed in fiict and insufficient in law to maintain the conclusions thereof. 81) tt) tlu' iiul- (Mil, iii'il, xty- 10 I'ro- eoii- ) it8 h of day I and ivitli, funu, luiili- '20 iut'or f Montreal. S 20 Schedule No. 24. Superior Court. The Reverend Robert Dobie, vs. " Board for the Management of the Teniixiralities Fund of the Presljyterian Church of Canada in connection with the - Petitioner. Church of Scotland," et uL, In the Siijurltir (hurt. No "1. Answer to Petition to (juash InjunotioD, filed 14th March 1879 — continued. No. 22. Affidavit of Douglas Bi'ymner, filed 14th March 1879 - Respondents. Douglas Brymner, of the city of Ottawa, in the Province of Ontario, an officer of the Civil Service of Canada, being duly sworn deposes, and says ; 1. I have carefully read over the petition of Respondents in this suit for suspension of the writ of injunction in this matter, and five affidavits thereto 'Attached, and co-Msirlt-ied the same. 2. I am a native of that part of the United Kingdom of Great Britain and Ireland called Scotland. I was admitted a member of the Church of Scotland, 30 by baptism, and have ever since remained a member of said Church, either in said Scotland or in Canada, a.s a member of the branch of said Church, known and designated as the Presbyterian Church of Canada in connection with the Church of Scotland, and I was ordained an elder of the East Parish of Greenock, in said Scotland. 3. In the year eighteen hundred and fifty-seven, I settled in the now Province of Quebec. The certificates of my being an elder in good standing of the said Church of Scotland, was pre.'^ented by me to and received and accepted by a Kirk-Session of the Synod of the said Presbyterian Church of Canada in connection with the Church of Scotland, in said Quebec, and I was inducted into 40 the eldership and became a member of said kirk-session and of the congregation over which it presided, on the ground of the ministerial and church communion between the said Synod and the said Church of Scotland, which it was declared Li I llEOOKD. Jn the Superior Court. No. 22. Affidavit of Douglas Bryiiiuer, filed 14th March 1879 — coiilinueii. I I 90 existed fit the date of my being .Khnitted as a member ami ehb'r of said congre- gation and kirk-.session, and which it was dechired in the Act (U^cl iring the spiritual independence of tlie said Synod hail always existed bi'tween the said Synod and the said (Jhnrch of Scotland, said comtniniion being used to desile of tiie Synod, submitted by Mr. Gale, be adopted." The fi)llowing is part of the said resolution so moved by Dr. Cook, 4" to wit, the said Dr. John Ct)ok, one of tin- Respondents in this cause : " That this Synod regard with the utmost pain and alarm, the ct)nduct of the supreme authorities in the StaU', in rejecting the claims recently made by the Church of Scotland," to wit, the claims made by an overwhelming majority, as was alleged, of the General Assembly of the said Church of Scotland. 21. On the eighteenth of May. eighteei: hundred and forty-three, a largo number of ministers and elders of the atbresaid Church of Scotland, did, in Scot- 9a Dr. Mvv iVOtl K)k, rtls : land *, as G.G. Wil- l's of rg in irs i)f IS all bility ion in more 1 Coin- )k, re- I more OU-rsy to the iiperial •noini- :w land, si!(!»h1o and witlulraw from the commnnion of the siiid Church of Scotland, RECORD. dc'cliirin^', Jiin()ii<:; other inuttcrH orfonipliiiiit, that the Civil Courts have j)ovv('r to stipt'rscili; thi- iiiJijurity of a Ciiiireh Cmu'tof the Establishment in regard to the exercise of its spiritual finietionsaH a CI ireh Court, and to authorise the minority '7 III the Suprn'or oiirt. '2'> to e.Ncreise the said functions in opposition to the Court itself, and to the superior ju(licatori(!s of the Establishment, to wit, of the (Jeueral Assembly or Su{)reme Court ol the said (!hurch o/ SeotlantI, as more fully appears at pages one and two of the article" " The Kree Chiu'ch of Scotland, l)y Uev. William Wilson, Dund«e," coutaiui'd in said Cyclopaedia of Religious Denominations, filed as of reotjrd in fiUj Uth 1(1 this cause, marked D.D. 22. In th*' affidavit of the said John Cook in support of the petition of Re- N(i Aifidiivit of I)ou(^l Mry UM luiiur, Miirch 187!) -continued. Hpondents in this matter, and at page three thereof, the said John Cook alleges : " That as a result of sutdi declared and admitted independence, as I fully " believe and now declare, it was in conformity with Presbyterian polity " that the Synod or supreme couit of said Church should act with perfect free- " dom, and as its own views of duty right dictate in the matter of Union with " other Presbyterian Ijodics. And that by an overwhelming majority it did, " after long deliberation and nmch pains taken to ascertain the feelings there- " anent of the great body of the congregations and members of the said Church, 2(1 " finally resolved to enter into such Union, it being a condition then;of, land " stated expressly in the formal Act of Union that the united church should be " considered identical with the Presbyterian Church of Canada in coiuuction " with the Church of Scotland, and should possess the same authority, rights, " privileges and benefits to which that Church is now entitled." 23. The aforesaid ministers and elders of the said Church of Scotland, who on the eighteenth of May, aforesaid, withdrew to another [)lace of meeting, there constituted themselves as the Free (jhurch of Scotland, after having lodged a protest, in which they declared that they maintained the Confession of Faith and standards of the Church of Scotland, as more fully appears in said article, '* The 30 Free Church of Scotland," in the same Cyclopaedia, filed herewith. 26. On the eleventh of July, eighteen hundred and forty-three, a letter ad- dressed to the Moderator ol the Synod of tin; said Presbyterian Cluirc*' of Canada in conection with the Church of Scotland, was presented to the said Synod then convened, as the supreme court of said Church, purporting to be from " the Com- " mittee of the Ceneral Assembly of the Free Church of Scotland on Colonial " Missions," to wit, the said ministers and elders of the said Church of Scotlaiul who hail seceded and withdrawn fn)in the said last-mentioned church, on the eighteenth day of May, aforesaid, and had added the word " Free" to the original name, but, as they declared, without changing their doctrines and principles, as 40 more lully appears by said minutes already filed at page twenty-five, of date, Toronto, eighteen hundred and forty-three. 27. In the month of May, eighteen hundred and forty-four, the aforesaid General Assembly of the Church of Scotland, convened in the city of Edinburgh, Scotland. 28. In thu month of July, eighteen hundred and forty-four, the said Synod (jf the Presbyterian Church of Canada in connection with the (Jhurch of Scotland met as the supreme court of the said Church, in the city of Kingston, Upper 1* ■ I ■m I I i llECOUD. h the. Superior (hurt. No. 22. Affidavit of Douf^las Bryniner. tiled 14tli Miiich 187!» — eniithiueil. 94 Cunada, ms more fully appears bv minutes of Synod filed, of date July, eightfen hundred and forty-four. 29. On tlic sixth of said Jidy, at the meeting of the said Synod, ''TiieCom- '* mittee on the Relations of this Synod, with the (Jhurch of Scotland, reported '' a series of resohitions on this subjeet," and it was " moved by Mr. Bayne, "' seconded by Mr. Gale, that the Synoil adopt the following resolutions": " Whereas, this Synod being fidly informed of the disruption of the Estab- lished Church of Scotland, *' to wit. the Church of Scotland, aforesaid," anil having taken all the circumstances connected with that event into tht'ir deliberate and prayerful consideration., ami having had special regard to its imix)rtant bearing ki on the cause of Christ tlu'oughout tiie world, are de ply impresse I with the obli- gations under wliich they are laid irom having liitherto stood in a peculiarly close and friendly relation to the Established Church of Scotland, " to wit, the Church of Scotland, aforesaid," to make plain to the world the fact of their entire and un(piali(ied independence, and to dissolve a connection which would imply that they sanctioned the principle and the proeedure of the aforesaid Church, which have issued in her disruption" as more fully appears at page fifteen of said min- utes filed, of date July, 1844. 30. At page twenty-second of said Synod minute filed, dated July 1844, it is recc^rded that " Dr. Mathieson gave in a protest signed by himself and certain other ^o ministers and elders members of the Synod," that the said members in discu.ssing said " Relations of the Synod of Canada with the Church of Scotland," should not be held as an adinis.sion that sui-h discu.ssion and decision were not in their nature; ()bjecti(mable or unconstitutional, or incompetent or ultra vires, or as compromis- ing, or affecting injuriously their status, I'ights or privileges," as more fully ap- pears at page fifteen of said minutes filed, dateil July 1844. 81. On the said ninth of July the said miimtes show that "the Synod having engaged in prayer for the Divine bles.-^mg and direction (Mr. Rintoul, on the call of the Moderator, conducting the exercise), the vote was then taken be- twien Dr. Cook's motion and Mr. Baynes' amendment." to wit, the amendment 30 referred to in paragraph twenty-nine of this affidavit, proposing to dis.solve the connection with the said Church of Scotland, " when Dr. Cook's motion was accordingly declared to be carried," the said Dr. Cook being one of the Respond- ents ami a deponent in this cau.>r to the heretofore Province of Lower Canada, as my petition sets out, I wsis a duly appointed licentiate and clergyman of tlu; Church of Scotland, and eligible for presentation to any parish in Scothind and to induction therein as a clergyman, and I am now a minister of the said Church of Scotland. I have read over the petition of the Respondents (except the Respondents 'io Sir Hugh Allan and the Reverend Gavin Lang, who acquiesce in the? ccmclusions of my petition), and observe that the said petition declares that: '' The said Dobie is not and never was a minister of the Church of Scot- land." which avernment is untrue. I j)roihice and file in support of my present alfidavit, volume eight of the Home and K(n"eign Missionary Record of the Church of Scotland, being the autho- rised and authentic record of the proc 'edings of said Church, as Exhibit K. K., from page one hundred and forty-eight of which it ajipears, as the fact was, that in the smnmer of 1852, and while I was resider-t in Scotland, John Cook, D.D.. of Quebec, whose affidavit has been tiled therein in support of the petition to dis- 3u solve or suspend the writ of injunction h(!rein, and Dr. Alexander Mathieson, of Montreal, went to Scothind with full powers from the Synod of the P'-esbyterian Church of Canada in connection with tlie Church of Scotland, the Clergy Reserves Coiinnissioners and the Board of Trustees of Queen's College, to look out for suit- able missionaiies and ministers to send out to Canada, &c , &c. " The fo lowing ministers having been selected and approved of by Doctors Cook and Ma.hieson, were, with the concurrence of the Colonial Connnittee, ap- pointed and sent out to Canada, namely : 1. Rev. George McDoiniell. 2. Rev. Robert Dobie, (petitioner), 40 3. Rev. J. Morrison. 4. Rev. A. H. Milligan, of Wick. 5. Rev. Robert Burnet. 3. I am now and have been for about twenty-six \'ears immediately last past a minister of the Presbyterian Church of Camida in connection with the Church of Scotland, and was moderator of the Synod thereof during the year eighteen hundred and sixty-eight. i99 r. LMltW. page tters iiada, f the \ iiinl lurch idents '20 Lisions Scot- t)l" the iitho- K.K, , thai D.D.. () dis' poll, *)t' teriaii erves Huit- H', ap- :w 40 ly hist th the year My rights upon the fund at jjrcaent liold by tlio corporation, Dc^fendantu, arc Buccinctly described in my |)C'tition htrcin filed. 4. Long prior to the coininutiition of the clainiH of uiiniHtevs upon the funds resulting from the set-ularisation of the Clergy Reserves, referred to in the peti- tion iierein the said Presbyterian Church of Canacured to them pi'rsonally, " they believe, by a late Imperial Statute, nnd which, indeed, some of them en- " joyed before they were admitted into the Synod of the Presbyterian Church in " connection with the Church of Scotland. " May it. therefore, please Your Excellency to take the premises into con- '• sideration together with the accompanying reason ol dissent and protest, and " inform your memorialists as to the decision to which Your Excellency may '* come in regard to the allowances above referred to, and your memorialists, as 30*' in duty iKumd, will ever pray, &c. " In name and by appointment of the Synod ot the Piesliyterian Church of " Canada, at Toronto, this sixteenth day of October, eighteen hundred and " forty-four. "(Signed) Mark Y. St.vrk, " Moderator." which memorial was refused by His Excellency upon the advice of the Law Oilicers of the Crown ; the moderator of the said Synod of the Presbyterian Chiu'ch of Canada havini reported thrieto, in eighteen hundred and forty-five, '■ that he liiul received a e iiimunicatioii from the Provincial Secretary's Office in 40" reply to the memorial from this Synod on the subject of the Government *• allowances enjoyed by some of the meml»ers up to the time of the Ibrination of •• the Synod, which (H)miiUinication set forth that according to the opinion of the " Law Officers of the Crown, said allowances could not be continued on account " of the new position in wliich the Synod stand," afii the whole will more fully apl)eMr from the authentic official Digest of minutes of the Presbyterian Church of Canada, at pages four hundred ioid eleven and four hundred and twelve thereof, which Digest is herewith file " ' conuuutation fimd whenever they shall cease to be ministers in connection v : said Church. That ' i" the conditions of the constitution of the said trusts, the said couu' ..-! Were authorized to proeinv an Act o!" incorporation for the nuinageuK l the said fund, which they sub.se(iuently obtained, to wit, twenty- second Victoria, chai)tir sixty-six, which expressly constituted a Board to manage the whole of tin- said tunds, " in trust," for the beneiit of the Presbyterian Church of Canada in connection with the Church of Scotland ; the terms of which trust the said Synod has not now and ne\er had any power to alter or derogate 40 from. That it is untrue, as is falsel}' alleged in said petition, that about the year eighteen hundred and lifty-six, it was agreed by all of said ministers and by said Synod that the claims of all ministers cm said fund should at their death revert to the said Synod, but on the contrary, it w.is agreed that the guaranteid salary of one hundred and twelve pounds and ten shillings ilevolving to each of the commutors should at his death revert, not to the Synod, but to the said ftuid, to 103 la in iliii}? I or- lived ition iidrd iiinli yiuxl 10 tllllKl iiiiici' ()d ol interH Lfd by theiti Id i)e it W118 'id imu to .•itlio- U) the ill the t of it, uirttt'i's ninth red a , Av.xW 1 tho :^(i itiilcd listers tho )r tlie ciity- liiinajri' I'tevian wiiicii [rogato 4(1 10 yoai" )y waid I revert jsidary of th'<- Ind, to wit, Ihenaid permanent endowment fnnd for the uniil dhnreli, aH appenrH from the RKCdRO. iiiithentic minutes of the proc;rs . % i li RKCOIU). In the Superior Court. No. 28. Ai. Invit of tin- .{iv. Robort Dobie, filed 14th Marcli 187!t — emit I nil 1(1. tlic Ri'v. John Cook, thi' Rev. J. H. Miick'-rrns and the Rov. Rolx-rt Cnmp- hi'll. (lc|)oM('nts in siip|)ort of the petition tc* (ina.sh tlu' writ of injunction lierciii iind divei>< other.";, then left the sniil St. I'aiil's Chiu'ch nnd proceeded to anotluT and separate hnildinir. to wit, the said Vicloriu Skating Rink, there to unite with the other liodies referred to. I)iit this deponent and divers other ministers .uni ehlers of the said Pi<'shyteriaii ('hurch ofCanadi in connection with tlie Churcli ofScothiiid reiniiincd in the said St. Paul's ('hnnh, and there did continue tlie husiness of the said Synod, and did di'y and legally close the same. And the said deponent and divers otiier ministers iiud eldeis of the said Presbyterian Church in connection with the Chinch of Scotland, have since the (ifteenth day l.e entitled to [) iiticipate in any l)eneHt> from said fund even bad they re'nainec .n connection with the s;iid Presbyterian Church of Canada in coiinec- tion with the Church of Scotland, and deponent iielieves that the number who have been illegally allowed to participate in the l)enefits frtun said t'und on and since the said lutli day of June, 1875 is about 105 In the Superior Court, No. 23. That it 18 uutruo that the said local acts guaranteed or secured anything to UECOllD. d.'ponent that he was not entitled to under the Act 22 Vic, cap- 66, — and depo- nent does not base his rigiits to participate in *^he benefits derivable from the said fund upon the the said locjil Acts. That it is untrue that the effect of the said injunction is to deprive ministers having claims upon said funds of any stipends to which they are legally entitled, inasmuch as only ministers who originally commuted were entitled to rank for ^ , ^1'^'' allowances upon said fund and this by reason of their severance of their connec- Kobcrt tion with the said Church having ceased, under the conditions constituted for said Dobie, 10 endowment fund, to participate in any beneht derivable therefrom. That further- fi'^ii ^-^th more, divers ijersons have illegally bv the said Synod been permitted to rank '^i"''<'".187!) against said Temporalities Fund who were not entitled on the fifteenth day of June, eighteen hundred and seventy-five, or since, to participate in any benefits derivable thureiVoui, but formerly derived their income from n fund called the Sustentatiou Fund, made up from tioUections taken up in the said Cluu'cl. by vol- untary contributions and of any surplus revenues that might e.xist over and above the amount of the revenues derivable from the said Temporalities Fund necessary to pay the hereinbeibrc annual stipends of the comnuitors; but that illegally and without just cause the said claiinson the Sustentatiou Fund have been transferred 20 o uad made claims upon the said Temporalities Fund since the fifteenth day of June eighteen hundred and seventy-five, iuul if the latter claimants, o;' any others, are subjected to any inconvenience by reason of the existence of the present in- junction, the same is without an.y fault on the part of the Petitioner, who pro- tested against the acts of the Respondents, and of the said Synod tending to con- summate the said Union, from the outset. That if any injury results to any person by reason of the existence of the present writ of injunction, of which the deponent is not aware, the deponent has given ample security therefor before this Honorable Court, and, furthermore, (h'ponptit declares his willingness to prosecute the present case to final determin- 30 aiion, with all possible expedition, and to facilitate the decision of the matters in dispute between himself and the Respondents, with the least possible delay. That the Rev. John Cook, the Rev. James C. Muix-, and the Rev. George Bell did secede from the Presbyterian Church of Canada in connection with the Church of Scotland, on the fifteenth of June, eighteen hundred and seventy-five, and did join the Presbyterian Church of Canada, as more s:)ecially declared in deponent's petition therein. That the resolution passed by the Synod of the Presbyterian (jhurch of Canada in connection with the (,'hurch of Scotland, that the said united church sliould be identical with the Presbyterian Church of Canada in connection with the Church 40 of Scotland, is a mere gloss and an attempt to transfer the rights, privileges, prero- gatives and property of the saiii Presl)yeriau Church of (Jaiuula in coiniection with the Church of Scotland to another body, against which the deponent duly protested. That each of the other united bodies did in their respective Synods declare that the said Presbyterian (Jhurch of Canada, to wit, the united church, should be identical with each of the other bodies respectively, and should be entitled to all the rights, privileges and prerogatives thereof. And deponent declares that PpBpP m llECOUD. In the Superior Court. No. 2:5. Affidavit of the Rev. Robert Do'uic, filed Mtli Wurch 1879 — continued. i f I 106 it in impdssihle that tlio iniitcd cliiircli, civati'd out of four (lin'eront and distinct ecclesiastical organisations differing among tiieinselves, could be identical with each of the four separate elements of which it was mad" up, and that, in fact, in order that the said Union could be effected there were concessions and compro- mises made in order to constitute a basis of Union which rendered it impossible that the united church could be identical in character with each o'' the four indi- vidual churches of which it wa> made up. That there has been and is no agreement or understanding between the Presbyterian Church of Canada in connection with the Church of Scotland and the three other bodies wit'« wliich they united under <^he name of the Presby- K) terian Church of Canachi, that these should hv identical in standard, and that they .should posse.s.s the same authority jmd attri!)utes as the said Presbyterian Church of (Canada. That it is untrue that the sole interest which deponent has in the said funds is that he should be paid (hiring his life the sum of one hundred and twelve j)OundK ten shilliiigs per annum, as falsely alleged in tlie Res])oiidcnts' petition, the said Dobie having renounced his rights to claim from the said Clergy Keserves the amount of the et)innmtation money to which he was entitled, in consideration of forming and constituting a continuous and permanent Endow- ment Fund to the s;iid Pres])vteriiiii Church of Canada in connection with the li) Church of Scotland, of which he is a minister, and which was a fundamental condition of his saiil reiiuiioiation ; that in eighteen htnidred and fifty-live the said deponent was entitled, personally, to receive a capital sum Irom which a reveinie of six hundred dollars per annum was derivable, whicii capital sum, if it had been personally received by him, would have become his absolute property, subject to his administration, and would have been tvansmissable to his heirs, but the said Dobie renounced his rights of ownership therein, and contentetl him- self with receiving, during litV, a diminished revenue therefrom with a view to the pcri)etuation in Canada (.f the said Presbyterian Church of Canada in con- nection with the Church of Scotland, in which the said deponent as a Christian ;jo minister has a deep and lasting interest, and with whose intjrest the life of depo- nent has been identified for over a ([uarter of a cent' < , and who desires to see it perpetuated. The inducement to deponent to rer. ,unce his personal : ghts to said conunuiation moneys are succiu;tly and clearly expressed in the third con- dition of the terms of the constitution of the said trust at page eight of my petition. That moreover in the present action and jjroceeding the said deponent, though acting personally, is support"d by the combined ministers and mem- bers of the Presbyterian Churcli of Canada in connection with the Church of Scotland, and the said action is entirely without malice on the part of 40 the Petitioner, and altogether a]),irt from a desire for personal pecuniary gain, but solely in order to secure the rights of the said Presbyterian Church of Canada in connection with the Church of Scotland, and for the ministers, members and adherents who adhere to the same in Canada. That tiiere are thousands of adherents to the said last-mentioned Church throughout the Province of Quebec and Ontario, many of whom are persons of 107 inilut'iice, and who anxiously dosiro to maintain the integrity of the said Presby- llECOUD. terian Church of Canada in connection with tlio Chiu'ch of Scothmd. That tlu; alleiiation in I lie allidavits of the Reverend John Jeidcins and the Reverend i( 'V Campbell, in which they state as followc That according to th'' rules of procedure and polity of the said Presby te- " rian Church of (.'anaila in connection with the Church of Scotland, the said " Church alwavs acted throUi!;li its hiuhest Court or Synod, and the voice of the In the Superior Court. No. 23. Affidiivit of tlic Itcv majority voting in .^aid Synod was always held to be the voice and (hidings of j^obcrt " said Church in which the minority are bound to accjuiesce, and the same rule ID " applies in the other Presbyterian cburcln'S, namely, that the decision of the '' majority expressed in tiie highest Court binds the minority and tiie whole " Church," only refers to matters of routine and ordinary business, and not to matters ail'ecting the very existence of the- Church itself, its fundamental prin- ciples, and its entire property and assets. That there never has been and is not any rule or practice in the said Pres- byterian Church of Canada in connection with the Church of Scotland, or in the Synod thereol", or in the Church of Scotland itself, or in the General Assembly thereof, by wdiicli or under which the majority can, against the will of a resist- ing minority, liiiid the minority to abandon the Church to which it belongs, its 20 ecclesiastical relationship, its peculiar princi[)les, or to remove from tlie jurisdic- tion of the sail] minority still remnining in the said Church, and continuing as the said (jhurch, the contri)! uf the property theret)f, or to remove or divert from the said Church the entire projjerty appertaining vo and vested intrust in said Church lor the benelit thereof. And the said disponent s'>ecin!ly d.eclares that there is no rule or practice in the .said Presbyterian Church of (Janada in connection with the Church ol Scot- land, which could in any way bind the minority or enforce upon them the action of the jjretended majoiity who left the said Church and joined with certain other bodies in the formation of the (.'hurch known as the Presbyterian Church in 30 Canada. And 1 have signed, Robert Dobie. Dobie, filed 14tli March 1879 — continued. Sworn antl ackiiowledgeil before me, at the city of Montreal, this thirteenth day of Mandi, eighteen hundred and seventy-nine. C. CusiiiNG, Commissioner for the Superior (^)urt of Lower Canada, district of Montreal. Endorsed. Aflidavitof the Rev. Robert Dobie— Filed 14th March, 1879. (Paraphed) G. II. K., Depy. P.S.C. V ' IIECOIID. In thf Superior Court. No. 24. Affidavit of the Uev. Robert Buruct, tiled 14tli . March 187!) 108 Schedule No. 26. Superior Court, Montreal. The Reverend Robert Dobie, .... vs. Ciinada, Province of Quebec, District of Moiitri.al, . Pi»r retitioner. *' Board for the Management of the TeinpiraiitieH Fund of the Presbyterian Cliiireh of Canada in connection with the Chiu'ch of Scotland," ---..-. Respondents. T!k" Revert'ud Ro))ert Rurnet, of the city of London, in the Province of On- 10 tario, bei'.if^ duly sworn, doth depose and swear : 1 am a minister of the Presbyterian Church of Canaila in connection with the Church of Scotland, and am also a licentiate and minister of the Church of Scotland, in Scotland. 1 have been a minister of the Presbyterian Church of Canada in connection with the Church of Scotland for twenty-six years, and I am now and iiave been p.'nce June eighteen hundred and seventy-five, the Clerk (or Secretary) of the S} nod of the Presbyterian Church of Canada in connection with the Church of Scctland. I know the Petitioner personally, and lo my knowledge he does not jict 20 from hjalieious motives in the present suit, but solely with a view to obtain jus- tice. He has the united concurrence and support of the members of said Church in the present suit. To the best of my knowledge and belief the origin of the Endowment Fund held by the said Corporation is correctly and truly set out in Petitioner's })etition herein ; and I firmly believe that it was owing to the connection of said Chinch with the Ciuu'ch of Scotland, one of the Established Churches of the United Kingdom, that the ministers of the said Presbyterian Church ot Canada in conmetion with the Church of Scotland were entitled and permit- ted to participate in the Clergy Reserves and their proceeds. :i(i The fund formed from the connnutation of the claims of ministers on the proceeds of the Clergy Reserves was ititended as a permanent endow- ment for the Prt-s])yterian Chiu'ih of Canada in comiection with the Church of Scotland ; and as such was in tiie nature of a trust fund specially devoted to, and ai)plicable for, the specific pur[)ose for which it was created ; and as such, inalienable and incapable of diversion to any other use or purpose. The Synod of the said Church has no power to modify, relax or change the conditions of said trust or endowment, which is entirely subject to the terms of tlie resolutions and the consent and agreement by which it was created. There is no power in the said Synod to afieet the civil rights of individuals, 40 or to alter the terms of a trust fund. The Piesbytcrian Cluirch of Cainida in connection with the Church of Scot- land is still a regularly organised and existing church organisation with its ministt-Ms and members as heictofori', adhering to tho objects of its creation as a Christian Church, and maintaining its connection with the Church of Scotland. 109 Siiid PrcHltyteriiiii Cliiirdi of Canailii in connection with the Church of llECOUD .Sfothuid has no coinu'ct' ai with the "• Prusbytcriiin Church in Canada." To deponent's knowicilge tlie said Pn!sl)yterian Churcli of Canada in connec- tion with the Church of Scothmd has thouaauds of devoted members and adherents in Canada. Robert Burnet, Clerk. In the Superior Court. Sworn and acknowk^dgcd before me, at the city of London, this twenty-lifth day of March, 1879. 10 J. Manly, A Commissioner for taking affidavits in the Queen's Bench and Superior Court for the Province of Quebec. (Endorsed.) Affidavit of Rev. Robert Burnet— Filed 14tli March, 1879. (Paraphed) G. II. K., Depty. P.S.C. No. 24. Affidavit of the Rev. Robert Buruet, filed 14th March 187!l — coutinued. Canada, Province of Quebec, District of Montreal. Schedule No. 27. Superior Court. The Reverend Robert Dobie, Petitioner. vs. " Board for the Management of the Temporal ities Fund of the Presbyterian Church of Caiuida in connection with the Church of Scotland," e( al., - - - Respondents. The Reverend Thomas Macpherson, of Lancaster, in the Province of Ontario, and the Reverend John Davidson, of North Williamsburg, in the Province of On- tario, being each for hini.self severally sworn, do severally, and each for himself, depose and swear : The said Reverend Thomas Macjiherson, and the said Reverend John ^" Davidson, that he is a member of the Church of Scotland, in Scotland, that he, said Thomas Mac[)herson, was duly ordaini'd a minister of the Presbyterian Church of Canada in connection with the Church of Scotland in the year eighteen hundred and thirty-six, and has ever since continued a minister of said <'hurch, and that he. the said Reverend John Davidson, was duly ordained a iniMister of the said Church in Canada during eighteen hundred and forty-four, and has ever since remained a minister of said Church. That said Church in Canada is and was simply a branch of the (Jhurch of Scotland, and only wjus permitted to participate in the proceeds of the Clergy Reserve funds in consequence of being such branch. That in the year eighteen No. 25. Affidavits of the Rev. Thomas Macpherson, and the Rev. John David.son, fil.'d 14th March 1871) REconn. In the Superior Court. No. 25. Affidivit* of the llcv. Tlioiiris IMaephcrson, :ind the Rev. John Davidson, filed 14 th March 187!) — cantinuCil. 110 luuulrod and forty-lour ccrtiiiii ininistors of the siid (!lmri'li in (.'amidii .socedod and loiiiied tlu'insrlves into ii clnni-li maintaining and professing to be identical in standards and forin.s of worship witli the Chnnih oC Scotland, and took the name of the " Presbvteriiin Church of (.•anadn," hut said last-nann d ministers were thereafter depri\eil of, and, itt 1815^ declared hy the then law olliccrs of the Crown in Canada, incapable and ineligible to [)artici[)ate in the proceeds of the Clergy IJeserves— the said seceders clainn-d their iillowances — and the ministers of tlu! said (Jhurch in Canada opposed the granting of the same by reason of their having severed their connection with the Church of Scotland in Canada. In 1855 the Deponent and the Petitioner and divers otiiers l)eing then en- lo titled to j)articli)ate personally in the proceeds of the Clergy Reserves, and each to receive a gross sum therefrom, renouneed their right to the capital thereof, and accepted a reduced annuity therefrom in order to form a permanent endowment fund for the said Chinch in Canada for all time (o coihc, and in order that said fund onglit not in I'utiu'e to be diverted from its proper uses and obvity ; and in order that it shoidd be widl understood, that if any subsequent secession should take placi", the said fund should remain and continue with those who maintained their connection with the said Chinrh in Canada, it was made a fundamental con- dition, which the Synod was for ever denied the power to alter, that any minis- ters, even a comnuitor, seceding from the same Church in Canada, should forever -H) lose all right therein and cease to have any claim thereon whatever. That the Reverend John Jenkins, John Cook, John II. Mackerras, Robert Campbell (and divers others who seceded with them) who have made ailidavits in support of Respondents' i)etition, are all seceders from the said Church in Canada; even more so than were the said seceders in 1844, for the said seceders in 1844 still professed all the standards of the Chiu'ch of Swtland in Scotland, except in con- nection therewith, to which they objected ; but the said seceders of 1875, to wit, the said Jenkins, Cook, (Jampbell and others, have not only seceded from tin; said ChiU'ch in Canada, but have joined other religious denominations which ailhered to and professed diHerent standanls from the said Church in Canada, and 'jn notably have joined with and iniited with the heretofore Presbyterian Church of Canada, which united previously with another l)()dy and took the name and title of the '• Canada Presbvterian Church," whieh hitter church absorbed the seceders into it entirely, and merely adopted the gloss and li:;tion of changing the word "of" in its former title to "in." Moreover, tlu; said Canada Presbyterian Chiu'ch had not a single dissentient voice against the absorption of the said seceders and other Presbyterian bodies into it, but received them as an accrual to its strength, enacting, at the samt; time, that the United Church, the Pres- byterian Church in (.^anada, should be the same and identical with the Canadii Presbyterian Church, which in fiet it is ; but the said Canada (ii Presbyterian Church diHered widely in its pn^tensions, as a church, on material matters of doctrine and church government from tlu' saiest years of his life, and which by reason of the love he bears for it, and the zeal he has ever maintained in its service, he desires to see perpetuated for all time. That to deponent's personal knowledge the said Petitioner is not animated by any sordid or malicious motives in the present suit — that he is acting as well personally — as with the united concurrence of all the members and ministers of the said Church and of the Synod thereof; and the said deponents, each for him- iji) self, says also that said Church in Canada has thousands of adherents and mem- bers, comprising many of the most influential persons in the community, that it is in perfect organisation, that this deponent, John Davidson, is the Moderator of the Synod thereof, and that the said Synod is deeply injured by the Presbyterian Church of Canada in coiniection with the Church of Scotland being dispossessed of said fund, and therefore prevented from procuring and paying ministers and missionaries to teach and preach to the many devoted adherents of said Church in Canada, thousands of whom are without the ministration of religion and the lienefits of its teachings in conse([uence of the acts of the Board Respondents and of K(!spon dents personally. 40 That deponents, except from their reference to Respondents — the Respond- ents Sir Hugh Allan, Knight, and the Reverend Gavin Lang, members of the said IJoanl — who for years have worked anil are now zealously working for the saitl Presbyterian Church of Canada in connection with the Church of Scotland. And deponent expressly declare that the said Synod has no power to make any disposition of said fund ; that the said Synod cannot and could not decide by a majority upon a matter iilTecting the property, rights and revenues of .said Church ; that the same were only and solely under the management of the m m mv m ? 112 IIECOIII). Boiml RcspoiiiU'iits, to bo hold iind managi'd as tni.st fiiiulH for the ohjocts Mpwi- ■ — lied, more |tiiitifid;irly in the IVtilioiier's petition. „" *.''' Ami deponents liave si";ned, and he aekno\vl(.(l''cs, each one tor himself. Coui-f. lllOMAS McPllEUSUN, John Davidson. No. 25. AtfiJavite of Svvorii U), and iicknowledged belbre me, in Montreal, this thirteenth day ol' ilie llcv. March. 1879, eighteen hundred and »evonty-nine. Macphersou, , • . , , bUSTIING, :,na the Commissioner ol the Superior Court, Lower Canada, in the District ol Kev. John Montreal. 10 Davidson, t-< i i tiled 14th (indorsed.) M^^uch 187!> Ailidavits of tlie Reverend Thomas MePherson and the Reverend John (Paraphed) G. II. K., Depty. P. S. C. No. 26. AflSdavit of tlie Kev. Gavin liaiiiT, tiled 11 th March 1879 Canada, Province of Quebec, District of Montreal. - Petitioner. Schedule No. 28. Superior Court. The Reverend Robert Dobie, vs. 20 " Board for the Management of tlie Temporalities Fund of the Presbyterian Ciiurch of Canada in connection with the Church of Scotland," ei ciL, ------ Respondents. Reverend Gavin Lang, now residing in the city of Montreal, being duly sworn, deposeth and saith : 1 am now and have been for aljout fourteen years a minister of the Church of Scotland, having been licen.sed by the Presbytery of Kintyre, in Scotland, on the thirtieth day of November, eighteen bundled and sixty-four, and or- dained by the Presbytery of Tiu'rill, in Scotland, on the twentieth day of April, eighteen hundr. d and sixty-five. ;{0 1 am the sou of a elergymaii who was foi upwards <;f forty years a minister of the Churcli of Seotliind, and, for the greater part of that i)eiiod, minister of the i)arish of Gla,ssft)rd, in Scotland, and I have two brothers ministers of the Church of Scotland, the one being minister ol the Barony parish of Glasgow, ill Scotland, and the other, ministvr of the ea.'^t parish of Farling, in Scotland. In eighteen hundred and sixty-four I was presented by Colonel William Cosmo Gordon, of Fy vit; (the patron), U> the i)arish of Fyvie, in Scotland ; and in I'ighteen hiindied and seventy was translated, on presentation by the Right Honorable the Eai 1 of Eglinton and Winton (the [)atron) to tlu- parish of Glassfoid, in Seotlaml. I was thus about six years engaged ;is a minister in Scotland. lii On the fourteenth day ol"Ai)iil, eighteen hundred and seventy, at a meeting n IlillL LHM- y oi' !t oi' John S.C. lU iicr. louts, duly liurch thiml, or- April, lU inistt'i' ster ot" of the "and. illiiuu land in Riglil ssl'ol'd, keting 1(1 In the Court. No. 26. Affidavit of 113 (tl LIh' roiinnitti'f.' apfjointcd luuler " tliu Act of incorporation and by-laws of St. UECOllD, " Andrc'w'.s Clinrcli, Montreal, for the [)ur|)o«c of obtaininj^ a niiiii.-tur to supply " the vacancy caused by tin; death of the late Rev. Ahxander Mathieson, D.D." of which connniltee Mr. John Ij. Morris was secretary, it was resolved on motion of Dr. (Jeorge VV. C.unpbell, .sect)ndtd by Mr. McDougall, ''that this meeting recjuots " the Rev. Drs. MacLeod, Macdull', and James A. Campbell, Kin[., to select a " clergyman, to wit, a clergyman of thtj Churcli of Scotland, in Scotland, for St. ^*'{i'y"'°* " Andrew's Church. Montreal, giving thrmfuU power tt) make the appointment and Oavin bant; " guaranteeing the (ilergymau of that selection £700 per annum." Accordingly fik-d 14th 111 the said Reverend Dr. Norniiin MacLeod, Rev. Dr. Macdull" and James A. Campbell, March IHTJ Kscjuire, oflered me the i)re.sentation U) the cure of said St. Andrew's Church, —<■««'*«««''• Montreal, which I accepted, and said presentation, under date eighth day of Octo- ber, eighteen hnndrtd and seventy, was laid before the Presbytery of Hamilton, in Scotland, within tlie bounds of which Presbytery my then parish of Glassford was situated, and I was translated by saiil Presbytery of Hamilton, in Scothiiid, to St. Andrew's Church, Montreal. The papers presented to the Presbytery of Montreal in order to my induc- tion into the charge of the said St. Andrew's Church, Montreal, were such as are usual in all processes of translation from one parish and Presbytery to another 2(1 [)arish and Presbytery in Scotland, and such as had been |)resented on the occasion of my translation from the parish of Fyvie and the Presbytery of Turrift' to the l)arish of Glassford, and the Presltyterv of Hamilton, in Scotland; the said Pres- bytery of Hamilton, in Scotland, a Presbytery of the Church o Scotland, thus recognising the said Presbytery of Montreal under the jurisdiction of the Presbyterian Church of Canada in connection with the Church of Scotland, au a Presbytery of the branch Churcli of the Church of Scotland in Canada. 1 have been since the twenty-eighth day of November, eighteen hundred and seventy, and am now minister of St. Andrew's Church, Montreal, and I hioleninly declare that 1 would not have accepted the presentation to the said St. 3(1 Andrew's Church, Montreal, except on representations, official or otherwise, that the said Church was in as dose connection with the Church of Scotland as any under the jurisdiction of a branch of the Church of Scotland can be. I have been since the twenty-eighth of November, eighteen hundred and seventy, and am now, a minister of the Presbyterian Church of Canada in con- UL'ction \vith the Church of Scotland, and was the moderator of the Synod of the said Church in eighteen hundred and seventy-seven, said Synod being the Su- preme Court of the said Church. I claim to be well acciiuiinted with the polity and procedure of the Church of Scotland, having been Irom early years, in virtue of baptism and participation 40 in the Holy Conununion of the other sacrament of the Lord's Supper, a member of the said Church, and in virtue of license or holy orders and induction into successively, two of her parishes in Scotland, a minister of the said Church, as also having been, while minister of one of the said parishes, on two difterent occasions, a member of the Venerable the General Assembly of the Church of Scot- land, which General Assembly is the Supreme Court of said Church of Scotland, and holds its meetings in Edinburgh, Scotland, under the sanction of the Crown, iiiii)arted by the presence of a Lord High Commissioner, appointed to preside, in the name of the Sovereign, over its deliberations. _a? i\r\ IIECOIID. 7/4 the Siipirior Court. No. 20. AfliiliiNit uf tlif Kcv. (javiii Lang, filed Utli Marcl. 1879 — coiitinueii. 114 Every liceiitiute of tlu' ('luircli of .Sw)tlaii(l in, in virtiii' of IiIh Hcohmc w urdei'H, eligibU? to roccivt: a proat'iilutimi to iinv vm^ant |tari.sli or cliiir}.;!' in comiuc- tion with the ( hiirclj ol" Scotland, and every I'resh^teiy in said conniction, is bunnd to indnet siieh licentiate into snch parisli or ehargt? to whi(;h he is lawfnlly presented, on being satisfied as to his eliMracter and attninni'Mits, as, tor example, in the cjise of deponent, as hereinbel'ore reeiti'd, and also that of the RcfVt-rend John Cook, D.D., who, in his own sworn athdavil, di'[)osilh and saith : '• I am '• now and have been lor npwards of forty-two years ndnister of St. Aniln^w's 'Mjluirch, in the said city of (iiu'liec, havinj^ been onlained a minister of the " Church of Scotland, and aihnitted to liie charge of St. Andrew's (.'hiu'ch, afore- lo " Kiid, by the Presbytery of Dnnd)arton, in Scotland, in Decend)er, eighteen hnn- " dred ami thirty-live." No minister other thiin a licentiate having the orders of the Church of Scot- land, can either be presented to or inducted into any parish in S<'otland without previous admission, l)y ^jiecial Act of the General Assembly or other duly autho- rised court of the Church of Scotland into the ranks of tlie ministry of the said Church of Scotliind, as for example in the cases, amongst others, of (1.) the Reverend John Jenkins, D.D., who, in an application to the venerable the Gene- ral Assembly of the Church of Scotland, of which application I have perfect cog- nisance, and in the promotion of which 1 took active interest, humbly prayed 2ii that ln' might, by a special act of grace, be admitted and recognised as a minister of the said Church of Scotland. (2.) The Reverend Usion, the majority in said Presbytery of Strathbogie so com- plying were deposed from the oflice of the holy ministry by a majority of the ensuing next Gentiral Assembly, said deposition being in turn removed and an- nulled on appeal from the decision of the dominant majority, to the obligations ;^,(i which the statutes establishing the Church imposed. (3.) the case of the law affecting Chapels of Ease or non-parochial churches, to the mini.sters of which, by an Act of the said General Assembly passed by a majority in eighteen hundred and thirty-four, a formal right had been given to sit in Presbyteries, Synods and Assemblies of the said Church of Scotland, but which, on the legality of said Act passed by said majority, being disputed by the parishioners of the parish of Stewarton, in Scotland, in the year eighteen hundred and thirty-nine, the Court of Session found to be unconstitutional and incompetent, and said Court of Ses- sion issued interdict accordinrrly. T was a delegate, and the only delegate, appointed at the regular meeting of 40 the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, at Ottawa, in June, eighteen hundred and seventy-four, to represent the said Syiod at the meeting of the Venerable the General Assembly of the Church of Scotland, held in Edinburgh, Scothuul, in May, eighteen hundred and seventy-live, and accordingly appeared as said delegate at said General Assembly. On the same occasion and at the same General Assembly there appeared as a deputiition appointed at an adjourned meeting of the Synod of the said Presby- terian Church of Canada in connection with the Church of Scotland, held in Toronto in November of the said year, eighteen hundred and seventy-four, the llKUOUb. /« the Siijteriiir Court. No. '20. Affidavit of the Ilev. (J.iviii Lang, fiUui 1 1th March 187D — anitinurd. IK) 'I KECOUD. Ill thv Cunrt. No. L'«;. Affidavit of llin Uev. U'tviti Lang, tiled 14tli Miirch 1879 — continued. UuvctcihI ilolin Cook, D.L)., tin,- Ki'Vi-reinl .1. II. MiickiTnLs, Mr. Jmiu-.s (Jri)il, ami othtTH, who Were clmrgL'tl U) j^ive the .siiiil (jieiu'ral AM.soinl)ly iiirorination a.s lo a proposed Union Uotwecu tlicsaid l*rt'."• the benelit of the said Church. From the reports of the proceed- ings of the said Temporalities Board since eighteen hundred and seventy-five I have no doubt that the said fund is being diverted from its original objects, and I believe it to be in the interest of the Petitioner and of the said Presbyterian UECORD. In Iht: iSutHrior Voiirt. No. 27. Affidavit of Sir Hu},'!. Allan, filed 14tli March 1871) :| 'i SBBl HN i *! « .I.?? if 1^1 RECORD. In the iS'ipvrior Court. No, 27. Affidivit of Sir Hugh Alia.), (ikd 14th March 1879 — continved. 118 Church t)f Caniida in coniioctiun with the Church of Scotlaiul, and in the iutcrcst of justice, that tlio injunction issued against Respondents should he nj:iintained until the final determination of the issues in this cause. 7th. I believe that the Petitioner in this matter is in good faith, and that the object of the suit instituted by him is not for the purpose of malice or per- sonal pecuniary gain, but as well in his personal interest as a connmitor and minister of the said Church as in the interest of tiie said Presbyterian Church ol Caujwla in connection with the Church of Scotland, and the maintenance of the conditions upon which he and others consented to the constitution of the said trust fund, namely, as a [)ermanent endowment for the benefit of the snid Pres- 10 by terian Church of Canada in connection with the Church of Scotland. And I have signed. Hugh Allan. Sworn and acknowledged before me, at the city of Montreal, this fourteenth day of March^ eighteen hundred and seventy-nine (1879). RoBT. Moore W.^tson, Commissioner of Superior Court of Lowcjr Canada, for district of Montreal. (Endorsed.) Affidavit of Sir Hugh Allan— Filed 14th March, 1879. (Paraphed) H. H. & G., P.S.C. 20 No. 28. Afi&davit of Mr. Justice Thomas Miller, filed 14th March 1879 Schedule No. 30. No. 2100. Superior Court. Reverend Robert Dobie, .... vs. Canada, Province of Quebec, District of Montreal, 30 - Petitioner. " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," e/ «?., -..--. Respondents. Thomas Miller, of Milton, in the county of Halton, in the province of On- tario, being duly sworn, doth depose and say : I am County Judge of the said county of Haltou, and an elder of the Pres- byterian Cliurch of Canada in connection with the Church of Scotland, of which 411 church I have been a mendK-r for twelve yc.'ars. 1 know the Petitioner personally, and to my knowledge ho does not act from malicious m(,)tives in the present suit, but solely with a view to obtain justic'. IJe has the united concin'rence and support of the members of said Church in the present suit. To the !)est of my knowledge and belief the origin of the emlowment fund held by the said corporation, is correctly and truly set out in Petitioner's petition iued that per- ■ iinrcrtby- i^-esby- Court, parish n with :!0 of the i latter lence ol :otlaiul. I- to his Iseventy 11 Lau'/s LVulavil III |)Vteriaii Church HO wise i,vercnil )r. Mr. Jn the Superior Court. No. 29. 121 Lang does not deny the t^'uth of my declaration, but seeks to mislead the Court UKCOUD. by affirming that those t\a) gentU'men, Dr. Snodgrass and William M. Black, wlu) have heen admitted into parislies in Scotland, on the strength of certificates I'rom Presbyteries of the United Church, were so admitted because they had been recognized as ministers by the Church of Scotland before the Union, the impres- sion sought to be conveyed being, that there was a difference in this respect previous to the Union; whereas it was always the same, all ministers of the ^^ ji'^"' " Presbyterian Churcii of Canada in connection with the Church of Scotland were it„ijcrt not eligible for patishes in Scotland before the Union, but only those who were Campbell, 10 licensed by the Church of Scotland, or had their status recognized by that ti'^^'^ '-^^th tj »/ Yf 1 I 017Q Church; so that I re-affirm my declaration that the Union has no wi.se affected ^^^■■<^" '"'^ the rehitions of those who formerly belongeil to the Presbyterian Church of Canada in connection with the Church of Scotland, to the Church of Scotland. That I solemnly declare my belief that the Church of Scotland does not re- cognize the Petitioner and the six other clergymen who, at the date of the Union W(,re ministers of the Presbyterian Church of Canada in connection with the Cliurch of Scotland, and are now in charges that, at that date, were connected with the Synod of said Church as a properly constituted church, since the Pres- bytery of Langholm, an integral portion of the Church of Scotland, refused to jO take cognizance of the act of deposition passed by the so called Synod of the Pres- byterian Church of Canada in connection with the Church of Scotland, or by the eommission of said Synod, composed of the Petitioner and the deponents Reverend Gavin Lang, Reverend Thomas Macpherson, John Daviilson, Douglas Brymner, Sir Hugli Allan and a few others, upon the Reverend Dr. Snodgrass, as would not have been the case, if the Church of Scotland recognized the Petitioner and his associates as a duly qualified Court. The depcment, the Reverend Gavin Lan;.;, denies that sentence of dej)osition was passed by Petitioner and his associates upon Dr. Snodgrass, but I solemnly declare that I have seen a letter over the signature of Reverend Dr. Snodgrass, containing a copy of what pur[)orted to be an official m connnunication to the Presbytery of Langholm, from the so Cidled Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, signed '* Robert Burnet, clerk" ; that I saw it reported in the " Dumfries Courier and Gallway Advertiser" newspaper of Scotland, and that in a pamphlet entitled "A Flag of Distress," acknowledged to be written by one of the associates of the Pe- titioner, whom I verily believe to be the Reverend Robert Burnet, clerk of the so called Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, the fact of the deposition of Dr. Snodgrass and all other ministers who joined with him in the act of Union on the fifteenth of June, eigh- teen hiaidred and seventy-five (1875) is confessed and defended. Reverend Gavin 40 Lang's denial to the contrary notwithstanding: — "'There was presented through the Committee on Bills and Overtures an overture from the Presbytery of Glengarry, craving the Synod to call over the names of the ministers who have withdrawn from this Church, who joined the Presbyterian Church in Canada at the Victoria Skating Ring ; to declare them to be no longer ministers of this Church and depose them from the office of the ministry, wliereupon the Synod declared, as they hereby do declare, that these ministers who luxve joined the IJ.lia m { /n the Sii/it'rior Court. No. 21>. Aftulavit oi' tlio Uev. llobirt Caiiipbell, lilid :i5tl. Miircli 187!) 122 HK('OHl). Pn'sltyU'viaii Cliurcli in Caiuula, theroby scci'dins; from tliu Syiiotl, viz arc no longer niinisti-rs of the Pn-sliyterian (J1um'(;1i of CiUiada in connection with the Chnrcli of Scothmd, or of the Church of Scotland in Canada, and that they are hereby deposcid from the ministry of said Church. Furthi'r, the Synod agree to record the expression of the grief of the members present at reading the names 81'rUituii, and at declaring those who have seceded from our Churches no longer ministers thereof, in terms of Chapter V^l, section I, of tlu' Polity of this Church, and after the example of the Synod of 1844, chap. VI of cases without [)rooess. " 1. When an individual couunits an offence in the presence (jf the Court or when he voluntarily confesses his guilt, it is competent to the c(jurt to i)roceed to 10 '^''"''-'''.^^''* judgment without process, the t)lfender having the privilege of being heard. — cwi mm . rpj^^ vi ord must show the nature of the offence, the judgment of the court and the reasons thereof." 1 have further taken cognizance of Reverend Gavin Lang's declaration, in which he calls in question an averment contained in my affidavit before the Court, that the fundamental principle of Presbyterian government is government by a majority, and that the minority are bound by the decision of the majority. Mr. Lang cites certain cases from the history of the Church of Scotland to controvert my declaration, but the cases mentioned by him do not, in the smallest degree, affect the truth of my averment. In those cases, 'Jii it was because the decisions of the majority contravened the law of the land, and were held by the Civil Courts to have violated the compact between the Church of Scotland, as by law established, and the State, that they were declared illegal; had there been no such contravention of law, the decision of the majority would have been binding on the minority. Tlie same result would have followed though the Assembly had been unanimous, so that the mere fact of the decisions on those cases cited by Reverend Gavin Lang, being upset by the Civil Court in Scotland, no more affects the integrity of the principle of government by a majority than a reversal of a decision of a majority of the Court of Appeal in the Province of Quebec, by the Supreme ;{ii Court a' Ottawa, on the ground that said decision was illegal, would aifect the principle that a decision of a majority of the Judges is the decision of the Court. , That there is no risk of conflict between the State and the Presbyterian 'Church in Canada, which is the name by which the Presbyterian Church of Canada in connection with the Church of Scotland is known, since the fffteenth \of June, eighteen hundred and seventy-ffve (1875), since the said Church was ^'ureful to precure from the several L'gislatures having jurisdiction over the pro- perties of said Church, prior to uniting to itself the t)thei' Presbyterian churclu.:. tile necesssary sanction to such union, so far as the said Legislatures had a right in to be consulted, that is in the domain of property. I Tliat 1 have further takeji cognizance of the deposition of the Reverend Robert Uobie, Petitioner in the suit before the Court, and have paid speci.il lUttention to that part of iiis deposition in wiiich he declares that it was on the /ground of its connection with the Established Church of Canada, tiuit the minis- ters of the Presbyterian Cluirch of Canada in aninection with the Church of ] 123 .lllt'S iiger ircli, rt or id to 10 Dard . ; and it ion, ictbrti lit is yision iiurcli im do cases, 'JO laud, >n the were icisiou result lit tilt! being )f the of a prenie '.W iiilect ion of Iteriau 'ch of Leenth W\ was le pro- lu'clu'. , right li" I'erenil |l)ecial )n the IniiniH- rcli of In the Superior Court. No. 29. Affidavit of — continued. Scotland were, in the year eighteen hundred and forty (1840), allowed a share RKCOllD. in the revenue of the Clergy Reserves in Canada. 1, on the contrary, affirm on my own knowledge, and from what I have learned frtmiOffieial documents, that it was on the ground that they wi're a Protestant clergy alone, that their claim to [jarticipate in that fund was conceded. Their cotniection with the Established Church i>f Scotland was t)nly cited in proof of the fact that they were l'i>)testant clergy, as the opinion of the law officers of the Crown, who reported as follows on ^*'j''^'''' the subject to the Imperial Parliament, in eighteen hundred and twenty-6ight ii„bert (1828), clearly shows " when your Lordships desire the judges to state if any Campbell, to other clergy (than the clergy of the Church of England) are included, what others, tilod ^5tli we answer that — it appears to us that the clergy of the Established Church of ^larcli 1879 Scotland do constitute one instance of such other Protestant clergy. And although in answering your Lordship's question we specify no other Church than the Pro- testant Chnrch of Scotland, we do not thereby intend that besides that Church the ministers of other churches may not be included under the term of " Pro- testant clergy." In accordance with this opinion the Imperial Parliament enact- ed that the Government should have the right to apply the proceeds of sale to any Protestant clergy, and the Wesleyan Methodists, who were not connected with any Established Church, afterwards shared ii'. the proceeds of said sales. •H) That I have also given close attention to what the Reverend Robert Dobie has declared, citing Digest, page four hundred and eleven, as to the refusal of Her Majesty's Governuu'ut to continue to grant the allowance which they had been previously in receipt of to those ministers who seceded in eighteen hundred and forty-four (1844) from the Presbyterian Church of Canada in connection with the Church of Scotland. I say that it was not because they ceased to be connected with an Established Church that they were then refused, but it was because giving it to them might oblige the Goveriunent to withhold it from those who .-jhould succeed to their places in the church which they had left, or else to give an allowance to two sets of men in each comnnmity. That it was not 30 liecause they ceased to be coiuiected with an Established Church is manifest from the fact that in eighteen hundred and tbrty-eight (1848), as appears from the same Digest, page four hundred and thirteen, the then Government of Canada oft'ered to admit the several religious bodies in the country to a share in the benefit of the Clergy Reserves, the Presbyterian ministers who had seceded among the rest. That this question, however, is not one that bears on the petition before the Court at all, as the Temporalities Fund is a thing quite distinct IVom the Clergy Reserve Fund, and was created not by the Imperial Government, but by tlie ministers of the Presbyterian Church of Canada in connection with the Church 4(1 of Scotland, that held office in thi! Church in eighteen hundred and fifty-four (1854), and was intended to supply, in some measure, the place of the Clergy Reserve allowanct'S which the ministers felt were unjustly to be done away with. That as to what the Reverend Robert Dobie avers regarding the independ- I'lue i)f the Presbyterian Church of Canada in connection with the Church of Scotland, that it is independent only " in spiritual " matters, thereby meaning to I :i ■ 124 HKCOUD. In the Sii/irrior Court, No. 2'J. AftMiivit of til.' Ucv. Uobcrt Cainjibt'll, iikd 25tl. Miircli 1S7!) — continued. iiiisloiul the Court, us if hi civil iimLlcrH, it was not indeiwiulcnt. of the Church of Sccjthmd, 1 iiflinn that ccck'siasticiil matttr.s an; the ou\y tilings over which a Prosb} teriaii Church in Canada has .suprenie jurisdiction ; in all civil matters the Civil Courts alone are final arbiters. That as to the ca.se of "direct interference," cited by Douglas Brymner, as to be found on page thirty-three ol' the ininuten of the Synod of the Presby- terian Churth of Canada in connection with the; (jhurch of Scotland, oi the year eighteen hundred and forty-two (1842), the Court will not find the vestige of an interference ilirect or intlirect, but in that and the following pages a most distinct and emphatic tleclaration of the independence of the Canadian Church is made. 10 T letter of the General Ass( inbly cited contains an exhortation to activity, auU such as one independent church might address to another. That as to the Reverend Robert Dobic's declaration that lie and his asso- ciates have continued to meet, to keep up and maintain the several Presbyteries of the Presbyterian Church of Canada in connuction with the Church of Scotland, swj they were before the Union, I declare that is impossible, as in many of the Presbyteries every member entered the United Church, and other Presbyteries adjourneil before the Union eitiier fiine die or to meet at the call of their Mode- rators, and I solemnly declare that these Moderators have never since called meetings, and therefore those Presbyteries could not be continued. 20 That the Synod adjourned, as it had an undoubted right to do, to the Skat- ing Rink, and w.is competent to discharge any business there that might arise as W(dl as to consummate the Union, and so the minority had no right to remain behind ; and even if the Synod had not been regularly constituted at the Skating Rink, the Petitioner and his associates could not " legally '' constitute, as Peti- tioner avers tlu-y did, as it required fifteen members to form a legal Synod, and they numbered only nine. And I have signed, Robert Campbell. Sworn, taken and acknowledged before me, at the city of Montreal, this 30 nineteenth day of Marcli, eighteen hundred and seventy-nine. John Taylor, A Commissioner for the Superior Court, district of Montreal. (Endorsed.) Atlidavit of the Reverend Robert Campbell— Filed 25th March, 1879. (Paraphed) li. H. & G., P.S.C. iim km of t a the by- ei»r [ sill inct lule. 10 'ity, ISSO- iviul, ' the eries lode- alled 2( Skat- ise as iinain Peti- and \, this 30 125 Schedule No. 32. Superior Court. The Reverend Robert Dobie, ...... Petitioner. vs. "Board for the Management of the Temporal iticH Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," e< a/., ..... Respondents. Canada, Province of Qucboc, District of Montreal. RECORD. /n the Superior Court. No. 30. Affidavit of James Croil, filed 25th March 1879 10 I, James Croil, of the city and district of Montreal, church agent, being duly sworn, depose and say : That I have carefully [)eruse(l tlie affidavit of the Reverend Gavin Lang, filed in this matter, dated the fourteenth day of March, eighteen hundred and si'venty-nine, and that part of it wherein he deposed as follows : " And it is not true but false, that the said Dr. William Snodgrass was ever deposed from the ministry by the Presbyterian Church of Canada in connection with the Church of Scotland, or that an official announcement to that effi'ct Wiis ever sent, or authoiised to be sent by the said Presbyterian Church of Canada in connection with the Church of Scotland." 20 That I verily believe the above (juoted statement of the Reverend Gavin Lang to be untrue. Tliat in the year eighteen hundred and seventy-eight, a pamphlet was pub- lislu'd and circulated by one of the associates of the Petitioner, the Reverend Koliert Dobie, whom I verily believe to be the Reverend Robert Burnet, the clerk of the said Petitioner's pretended Synod, and wherein the depositioss of the whole of the ministers vvlu) took part in the Presbyterian Union is admitted, and the following minute of said pretended Synod is quoted, to wit: — " There was presented through Mie Committee on Bills and Overtures an overture from the Pres- bytery of Glengarry, craving the Synod to call over the names of the ministers who 30 have withdrawn from this Church, who joined the Presbyterian Church in Camuia at the Victoria Skating Rink ; to declare them to be no longer ministers of this Church and depose them from the office of the ministry. Whereupon the Synod declared, as they hereby do declare, that these ministers who have joined the Presbyterian Church in Canada, thereby seceding from the Synod, viz.. are no longer ministers of the Presbyterian Church of Canada in connection with the Church of Scotland, or of the Church of Scotland in Canada, and that they are hereby deposed from the ministry t)f said Church. Further, the Synod agree to record the expression of the grief of the members present at reading the names seriatim, and at declaring those who have seceded from our Church no longer 40 ministers thereof, in terms of Chapter VI, section I, of the Polity of this Ctuu'ch, and after the example of the Synod of 1844, chap. VI of cases witiiout [ircx'ess. '• 1. When an individual connnits an olfence in the presence of the Court, or when he voluntarily confesses his guilt, it is competent to the Court to proceed to judgment without process, the ollender having the privilege of being heard. The record nuist show the nature of the offence, the judgment of the Court and the reasons thereof." 5 4 UKCOKD. In the Siijxrior Court. No. 30. AffiJavit of Jiiuifs Croil, filoJ 25th M.iicli 1879 — ciiu tinned. 126 Further, thu RevtMond Dr. Snodgrass addressed a letter to me from Scot- land, in which he stated that a commimiciition had been received officiallv from the Rfvereiid Rohert Burnet, us such clerk, l)y the I'resUyt'-ry of Lingholm, in which it was stated that the Reverend Dr. Snodgrass hiid been deposed from the ministry. I also cut the following paragraph from a Scotch paper, which confirms what I have stilted, " Thr- I'resbytery of Langholm, on Gth November,'in Canonbie Church : present Rev. Mr. Burnet (moderator), with Rev. Messrs. Smith, Mac- turk, Young, Nol)le and Dick. Mr. Smitii was appointed moderator for the cur- rent half-year, and took the chair. Mr. Young was appointed as clerk ^;;v> ifin- lo pore. Mr. Smith laid on the table a letter signed tty Robert Burnet, clerk of Synod and Commission, in name and by authoiity of the " Commission of the Presbyterian Church of Canada in connection with the Church of Scotland," in which it was stated that Di'. Snodgrass had been ib'posed from the ministry. The ground of deposition was not very distinctly state*!, l>ut it upjieared to have been the part which the Rev. Doctor had taken in connection vvith the recent union of the Presbyterian Churches of Canada, and the fait of his having jc^ined the union church. The Presbyteiy unanimously [)ronoimi:id the letter to be irregu- lai', and several nieinbeis expressed their decided disapprobation of the conduct of the so-called "Commission," in transmitting such a document, that body hav- 20 ing no power to depose lui ordained minister of the Church of Scotland, even lor a grave fault, much le.ss for the ofl'enc ■ alleged. It was remarked that the Gene- ral Assemldy had left its ministers perfectly free to iict upon their own sense of duty in the matter of union. Mr. Burnet then conducted public worship, after which he delivered a most instructive and e lifying discourse from Prov. xv. 15. A form of 'call' in favor of Dr. Snodgrass was then produced, read and wigned." And I have signed, James Croil. Sworn, taken and acknowledged before me, at the city of Montreal, this 30 twenty-fifth day of March, eigliteen hundred and seventy-nine. Anduew J. Simpson, A Commissioner for Superior Court, district of Montreal. (Endorsed.) Affidavit of James Croil— Filed 25th March, 1879. (Paraphed) 11. li. & G., P. S. C. 127 ot- .)m in the hat ibiu lac- L'ur- 'p.w- 10 k of tlie " in itry. liive ;ceiit I tiie ■egu- idlict hav- 211 n for }ene- ist' of iifter V. 15. I and this 30 tn-al. Prov Dint I Canada, i inco of Quebec, > ict of Montreal, i Schedule No. 33. Superior Court. Tlie Rev. Robert Dobie, - Petitioner. vs. "Board for tlic Mnnagenient of the TeniporalitieH Fund of the Presbyterian Chunh of Canada in eonnection with the Chureii of Scothind," 6'^«/., - Respondents. H> The Reverend John Jenkinn, of the city of Montreal, Doctor in Divinity, and minister of St. Panl'H Chuich, in the said city, being duly sworn upon the Holy Eviingelist.><, doth make oath and say : 1 have carefully read over tlie afTidavit of the Petitioner, the Reverend Robert Dol)ie, and have given special attention to that portion of the affidavit which profes.> snid (Jhnrcli although in two m.s<.'H ho was pditionod so to do. That a.s stated in Petitioner's [)i'tition he and others diil reiionnce their claims on said ('leigy Heserve Fnnd, and authoi ised said Synod to ivceivo and retain the eoMnniitalion nion<'y fiom tlu- Govi'rnnu'iit, upon two conditions only, to wit: First, that the inteiewt of the fund should in* devoted, in the (irst instance, to the payment of salaries of (jCH2 lOs.) one hundred and twelve pounds ten shil- !<• lings eacli i)er annnin to the ministers granting the power and authority to make such comnuitation ; and secondly . that th'' ne.xt claim on the Fund should he that of ministers on the Roll of the Synnil. and who had l>een put on th" Synod's Roll since the ninth of May, eighteen hundred and liftv-three. That the amount received l>y the said Synod as and for the said <'oiniinitation allowaine was (£127,327 lOs. 4(1.) one hundred and twenty-seven thousand three hundred and twenty-seven pounds si\ti!en shillings and lbur[)(!nce. That the nnndjer of ministers who then had claims u[)on the said fund and who connnuted the same was (73) .seventy-three; and it was then agreed hy the niemliers of the said Synod that liie siid sum ot money .should lie, and it was, -'() funded for the benefit of th. said Church, and that the only right and interest there'll of each of the said mini>terH should he to receive a certain annuity therefrom during his lifetime, and that subject to such right th-jsaid fund should be and remain a cominon fund for the nse of the said Church and under the (con- trol of the said Synod. That sub.seipieiitly, in the years ('(8o7 and 1858) eighteen luindred and fifty-seven and eight* imi luindred and (ifty-eight, the said S}'nod caused proceed- ings to be taken whereby they obtained tlu' [)assing of the Statute of the late Province of Canada, (22nd) tweiity-.second Victoria, cha|)ter (00) si.\ty-six, for the management of the said fund, and ever since that time "The Board for the ^i' Maiiageineiit of tlu^ Tem[)()iMlities Fund of tlu; Presljyteri m Church of Canada in connection with the Church of Scotland," constituted by said Act, havt; with the consent and approval of the .said Synod, administered said fund, subject to the jurisdiction and control of sai 1 Synod, who have always, with the consent of said Dobie, and all others concerned, claimed and exerciseil absolute power over said fund as the legal owners thereof. That the said Act of Im.'orpurat'on of the said Board was amended liy thirty-si cond Victoria, chapter .seventysi.x of the Legislature of the Province of Quebec, with the ap[)roval of said Synod, of which said Petitioner was also a member, and the said Board Inive since said amendment been continuously acting thereund'r by and with the approbation of I'' .said Church and Synofiauvd. I mtvi RECORD. ]n the Court. No. 3a, Pica, filed \m March 18(11 — wntiiiueil. 132 the Presbyterian Church of Canada in connection with the Church of Scothind, HHil should possess the same authority, rights, privileges and benefits to which that Church is now entitled." And tlu! said Prrsbyterian Churcli of Canaihi in connection with the Church of ScotUuid, now exists under the name of '' The Presbyterian Church in Canada," and retains all its property (including the said Temporalities Fund), rights and privileges whieh it formerly held and enjoyed under the name of the Presby- terian Church of Canada in conneetion witii tlu- Church of Scotland, and its maiisterial and church eonnnunion with said Church of Scotland have iiot ceased. The same standards are still recognized i.nd there is the same ministerial and 10 church communion. The sanl United Church, to wit, the Presbyterian Church in Canada, receives members and ministers of the Clun'ch of Scotland, and the Church of Scotland receives members and ministers who formerly belonged to the said Synod and who went into the union in the same way, and to the same extent, as it did before the union. Witness the reception of the Reverend William Bhick, late of the city t)f Montreal, and of the lleverend Dr. Snodgrass, by Presbyteries of said Church of Scotland as ministers of parishes in the said Church, the reception ol the latUr, namely, the Reverend Dr. Snodgrass, being the more remarkable as it was in utter disregard of an official announcement from the said Dobie's pretended Church of (Janada in connection with the Church 20 of Scotland, that it had deposed the said Dr. Snodgrass Irom the ministry. That as a result of such secession from said Cluirch and Synod by the said Dobie he would have lost all claim upon the said fund, if the said Synod, previoius to .said union (with a view to acting generously to said Dobie and any others who did not wish to remain iu said Clunch after said Uinon) had not by formal resolution provided that any person refusing to take part in said Union should continue to have the same claim upon said fund as if lie had entered in said Union, and if the f.aid Synod had not obtaineJ the passing of the said Acts which guarantee to the said Dobie and all others his and their claim upon said fund. That the only interest which the said Dobie has in said fund is to be paid :jo the annual sti[)eiid of ($450.00) four hundred and fifty dollars, during his lifetinu', or so long as he shall retain the position of a Presbyterian clergyman in Canada. Thai this is secured to him, as s[)ecially provided by resoUition of the said Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, and by the xVcts above r< cited. Tiiat the Respondents have always faithfully and honestly administered said fund as directed by said resolution and Acts jid have always paid to the said Dobie his half-yearly stipi'iid from said fund whe!i due. That said Dobie has since the said union frequently recognized the validity of the coi'stitution o^' said Board and of said Acts by acce[)ting from said Board 40 as at present consti J, his half-j'early stipends of ($225.00) two hundred and twenty-live dolla , v'a^li, from said fund, and has also, without protest or taking any proceedings until hist May, allowed said Board since said (iiccenth of June, eighteen hundred and seveiity-hve, to act and administer said fund as they are ne administerini'- it. That the Respondents have not infringed upon the capital of said fund so m liility ioiird 40 iiiid king I line, y are 133 as to endanger in any way the personal interest of said Dobie, which capitalized wonld iunoiiiit to less than ($0,500.00) six thousand five hundred dollars, but on the contrary, the said Respondents have iilways declared and now declare that no a)nsiileriition or circumstances shall at any time induce them so to administer the said fund as to imperil the interests of said Dobie or of any other surviving commuting minister having a claim on said fund. Thut in this case the said Dobie does not pretend to represent any person but himself, but has instituted proceedings in his own personal capacities. That inasmuch as the said Dobie has seceded from said Church as afore- 10 said, anti as by resolution of said Synod tlu; said Respouilents are administering said fund so as to protect said Dobie's claim, the said Dobie has no right or in- terest to attaek the coristitutionality of the said Acts of the Legislature of the Pro- vince of Quebi c or to call in (piestion I he right of the Respondents, the members of said Board, to aet as such and to administer the said fund. That the domicile of the said Boai-d, Rtsponilrnts, and their place of business is and always has been in the city of Montreal, in the Province of Quebec, and the whole of the funds administered by the said Board are and always have been invested in the Province of Quebec. That therefore the said fund and property of saiil Board being within this •M Province, are and always were subject to the Legislature of this Province. That in any case the said Dobie has no right to complain of the said Acts as his ri,ii,hts or claim upon said fund is not taken away, but on the contrary, is ex- pressly preserved by said Acts. That further, all persons having any claim upon the said fund are resident I'ither in the Province of Quebec or of Ontario; and as before stated, the said Act was passed in the Province of Ontario, and the said Dobie and those resident in Ontario are bound by the said Ontario Act. That the said Acts, both of the Province of Quebec and of Ontario, are legal and constitutional, and M'ithiii the competency of said Legislatures. 30 That the allegations of the said Dobie in his said petition concerning the Rev. John Cook, the Rev. James C. Muir, the Rev. George Bell, the Rev. John Faiilie, the Rev. David W Morison, and the Rev. Charles A. Tanner, are irrele- vant and illegal, and do not concern the said Dobie, who has only a right to attend to his own interests. That of the original seventy-three ministers who commuted their claims as aforesaid, forty have departed this life, and all their rights terminated at the time of their vtcath. That only tliiity -three of said original comnuiting minis- ters remain, ami twenty-seven of tlu'se have approved of said Union, and of said resolution of said Synod and of said Acts of said Legislature, and of the present •lu constitution of said Board, and the present administration by it of said fund. That there are, therefore, only six of said ori-'>Uition ot said Synod. Wherefoi the said Respondenti pray that the Petitioner's action and RECORO. In the Superior Court. No. 33. Plea, filed 11th March 1879 — continued. I » fT' 134 1^ ■ -.1 RKCOllP. demande may be la-iice disiiiiHsed with costs distraits to thu undersigned attorney. Montreal, lOtli Marcli, 1879. JouN L. Morris, Attorney for .said Respondents, except the Reverend Gavin Lan^ and Sir Hugh Allan. In the Superior Court. No. 33. Plea, filed 11th Waieh 1879 — continued. And the said Respondents the '• Board for the Miinagement of the Tempo- ralities Fund of the Presbyterian Church of Canada in conn«'Ctlon with the Church of Scotland," the Rev. Daniel M. Gordon, the Rev. John Cook, the Rev. John Jenkins, John L. Moiris, Robert Dmnistoun, William Walker, the Rev. lo John Fl. Mackerras, William Darling and Alexander Mitchtll, without waiver of the foregoing plea, but on the contrary, reserving to themselves the benefit thereof for plea, defense an fonds en fait to the Petitioner's action and demand, say : That all, eiich and every of the allegations, matters and things contained in the Petitioner's petition in this cause filed are false, untrue, and unfounded in fiict, and are hei'eby specially and expressly denied. Wherefore, the said Respondents pray that the Petitioner's action and deniande may be hence dismissed with costs distraits to the undersigned attorney. Mtmtreal, 10th March, 187'J. 20 JouN L. Morris, Attorney for said Respondents, except the Reverend Gavin Lang and Sir Hugh Allan. (Received Copy.) Macmaster, Hall & Greensiiields, Attorneys for Petitioner. Plea - Filed Uth March, 1879 (Endorsed.) (Paraphed) H. H. & G., P.S.O. No. 34. Declaration of the Rev. Gavin Lang, filed 8th March 1879 Schedule No. 36. Superior Court. Reverend Robert Dobie, vs. Ciuiada, Provinc" of Quebec, District of Montreal. 3(1 - Petitioner. " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland." Respondents. Th(! Respondent, the Reverend Gavin Lang, minister of St. Andrew's Church, Montreal, one of the .said individual Resi)ondents, and a member of the 135 an. ipo- th(! lev. lev. 10 iver iiefit liind, id in id in and rney. 20 AUim. C. 3(1 loner. IndentH. Iiuirew'a of the corporation Respondents, hereby declares : That he acquiesces in the pretentions of the I'l'titiuncr. That, furtlier, it is in the interest of the hiwful chiimants of funds heretofore ndiniuistcred by the saitl Corporation, that the Injunction herein niaile should he (•oiitinaed. That in all matters this Respondent has acted in good fiiith, and he abides the ortler .uid judgment of the Court herein. Montreal, 5th March, 18V9. D. E. Bowie, Attorney for Respondent Reverend Gavin Lang. (Duly received Copy.) 1(1 Macmastek, Hall & Gkeensuields, Attys for Petitioner. (Endorsed.) Declaration of the Reverend Gavin Lang — Filed 8th March, 1879. (Paraphed) H. H. & G., P.S.C. RECORD. In the /Superior Court, No. 34. Declaration of tlie Rev. Gavin Lang, filed 8th March 1879 — continued. Canada, Province of Quel)ec, District of Montreal, 20 Schedule No. 37. Superior Court. The Reverend Robert Dobie, ..--.. vs. " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Petitioner. No. .S5. Declaration of Sir Hugh Allan, filed 8th March 1879 Church of Scotland," - Respondents. The Respondent, Sir Hugh Allan, Knight, of Ravenscraig, one of the said individual Rispondents and a member of the corporation, Respondents, hereby declares: That he acquiesces in the pretentions of the Petitioner. That, further, it is in the interest of the lawful claimants of Funds heretofore administered by the said corporation that the Injunction herein made should be continued. That in all matters this Respondent has acted in good faith, and he abides the order 30 and judgment of the Court herein. Montreal, 5th March, 1879. D. E. Bowie, Attortiey for Respondent Sir Hugh Allan. (Duly reed, copy.) Macmastek, Hall & Gkeensuields, ■ Attys for Petitioner. (Endorsed.) Declaration of Sir Hugh Allan— Filed 8th March, 1879. (Paraphed) H. H. & G., P.S.C. I m 1 Iff i':'"?in~"'T r ;it» i 1 RKCORD. Canada, In the Province oi" Quebt'i', Court. iJif^trict ol Montreal. No. 36. Petitioner's List of Exhibits, tiled 21st iMarch 1879 The Rev. Robert Dobie. 136 Schedule No. 38. Superior Court. Vfi. - Petitioner. " Board for the Manngeineiit of the Temporalities Fund of the PrcsbytcriMM Church of (Canada in connection with the Ciuu'ch of Scotland," e< rtZ., ------ Respondents. List of Exhibits filed by Petitioner in this case upon the Ciise jyenerally and in 10 support of his answer to the petition to dissolve nnil suspend the writ of injunc- tion herein. Exhibit BBB. Three volumes comprising the Minutes from 1881 to 1875 of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland. Exhibit LL Digestof theSynod Minutesof the Presbyterian Church of Canada. Exhibit MN. Pn)leftt ^erved by PetitioiuM-, Jo-^cph Flickson mikI others, upon the moderator of the Synod of the Presbyterian Church of Canada in con- nection with the Cluucii of Scotland agiiinst a union resulting in the formation i>f the Presbyterian Cliuich in C;uiada. 20 Exhibit CC. Kindts and Failures of the late Presbyterian Union in Canada, l)y Douglas Bry inner. Exhibit EE. Acts and Proci'edings of the lirst General Assembly of thf Pres- byterian Church in Canada. Exhibit KK. Missionary record eighth Church of Scotland containing an- nouncemnt of the appointment of Petitioner as a minister. Exhibit FF. Historical and St:itistical Report published by order of the said Synod of the Presbyterian Church of Canadu in connection with the Church of Scotland. Exhibit DD. Cyclopedia of Religious Denominations, containing authentic ac- 30 counts of the different creeils niid systems prevailing throughout the world, written by members of the respective bodies. Montreal, March 21st, 1879. Mac.mastek, Hall & Greenshields, Attys. for Petitioner. (Endorsed.) Petitioner's list of Exhibits— Filed '21st Miirch, 1879. (PMriiphed) G. H. K., Depty. P. S. C. V-J 137 SI Schedule No. 41. RECORD. tri. ;lin 10 tlUC- tUe the lada. a the coii- u the 20 nada, Pres- g an- le Siiid 111 the lie ac- 30 lit the honer. . S. c. In the Superior Court, No. 37. On this day, the fifteenth of June, in the year of our Lord one tliousand eight hundred and .seventy-five, at the request of Joseph Hickson, Esq., George W. Campbell, doctor of medicine, John Cowan, merchant, David Law, merchant, James Stewart Hunter, notary public, and Henry Morgan, merchiint, George Gndiam, merchant, and James Mitchell, merchant, all of the city of Montreal ; i fu'?"^'^ and Douglas Brymner of the city ot Ottawa, Ontario, Esq., yilexander Fleck, of m,n.) the said city of Ottawa, manufacturer, and Thomas A. McLean of the city of To- Protest at ronto, barrister-at-law ; also at the request of the Rev. Robert Dobie of Milton, fc''.e request 10 Ontario, the Rev. William Simpson of Lachine, Quebec, the Rev. Robert Burnet ^.•^^i^eph of Hamilton, Ontario, the Rev. David Watson of Thorold, Ontario, the Rev. G, (,; aeai'n?t S. MuUan of Osnabruck, Ontario, the Rev. "John Davidscm of Williamsburg, The Moder- Ontario, the Rev. Thomas M(;Phers()ii of Lancasti-r, Ontario, the Rev. John Mc- atorof the Donald of Beechbridge, Quebec, Elder Willi.m .McMillan of Lnulon, Ontario, Canad?iV^ Elder Roderick McCrimmon of Lancaster, Ontario, all members and adherents of connection the Presbyterian Church of Canada in connection with the Church of Scotland. with Ch. of I, Charles Cushing, tlu; undersigned notary ])ublic, didy commissioned and Scotland, sworn in and for that part of Canada heretofore constituting the Province of ^^^^^^^^^ Lower Canada, now the Province of Quebec, in the Dominion of Canada, residing 20 ill the city of Montreal, in the said Province, Personally went to St. Paul's Ciuuch, in thf said city of Montreal, where liiiing and speaking to the very Reverend William Snodgrass, Principal of Queen's College, Kingston, and Moderator for the time being of the Synod of the Presby- terian (Jhurch of Canada in connection with the Church of Scotland, a body politic and corporate, I declared : That Whereas a Union is contemplated between the said Presbyterian Church of Canada in connection with the Church of Scotland and certain other churches or denominations, and thereby abrogating certain Acts which are gene- ral in their nature and indivisible in their disposition under the pretence of 30 applying their power restricted to local or private matters in the Province to a particular local church or management, and contrary to law, and in violation of the rights and privileges of the purtics above-mentioned, and others who may concur against the said contem|)lated Union. V7uEREF0R£ 1, the said notary, at the request aforesaid, and speaking as afore- said, do hereby notify and require the very Reverend the Moderator to refrain irom signing the said Act of contemplated Union of said Churches, in default whereof they the said reqaerants and others who may concur herein will hold him the said Moderator, in his said capacity, and all other parties to the said con- templated Union, liable and responsible for all consequences inimical to the 40 interests of Ihe said requerantfi as members and adherents of the Presbyterian Church uf Canada in connection with the Chureh of Scotland, and for all damages, injuries and hurts which may have been sustained, or may hereafter be sustained, and to be hereafter recovered by such means as they by their counsel, learned in the law, shall advise. I, the said notary, at the recjuest aforesaid, and speaking as aforesaid, have protesteil, and by these presents do most solemnly protest against the said Mode- UKCUlll). nitor Ibr the tiino being, 138 and :ill otIierH whom the .same doth, shall, or 111 the Siijieriur Court. No. :j7. (IV'titiouer's Exhibit M.N.) Protest at tlic request of Jo»epli llicksoii, et (tl., againt The Moder- ator of the Pres. Ch. of Canada in connection with Ch. of Scotland, dated 16th June 1875. — continued. may in an)' way concern,, lor all costs, losses, damages, tletiiment, injury anil liurtH idreii'ly sutlered, ami which may be hereafter in any way ^un'eied., and I'or all and whatsoever else may or ought to be protested for or against, for and in conse(iuence of all anil every the causes above-mentioneil or incidental thereto. And I havy served a copy hereof upon the .said Moderator for the time l)eing, speaking as aforesaid. Thus done and protested at the city of Montreal, at the place and on tht- day, month and year lirst abovr written, thesf pre.'^riits bearing the number five thuusaud live hundrid and ninety-seven of the original deeds of rc'cord in the lo oflit:e of the said ntttary, being liisi didy read. And I have signed in testimony of the premises. (Signe(0 C. CusiiiNG, N.P. A true copy of original hereof remaining,' of Record in my office. C. CUSIIING, N.P. (On the back.) No. 5597, 15lh June, 1875. — Protest at the request of Jo.seph Ilickson, et (tl., against the Moderator of the Presbyterian Chinch of Canada in connection with the Church of Scotland. (^ Endorsed.) ^0 Petitioner's Exhibit M. N.— Filed 21si Manh, 187U. (Paraphed) 11. 11. & G., P. S. C. No. 38. Petition for Deposit and Notice thereof, filed 9th June 1819 Canada, Province of Que District of Moi lebeo, > it real. S Schedule No. 50. Superior (>)urt. The Rev. Robert Dobie, - Petitioner. vs. It) " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," et uL, ------ Respondents. any one of the IIcMiorable Judges of the Superior Court for Lower Canada, sitting ill chamb(M's in and for the distiict of Montreal, The Petition of the .said Respondents, except the Reverend Gavin Lang and Sir Hugh Allan, Respectfully she wet h 30 That thf intfitst oi' the said Rc'verend Robert Dobie in the funds in question herein, aicording to his own shewing and the alleg.itioiis of his petition, and accord- ing to law, consists only in the righ.t to be paid ($450.00) four hundreil and fifty dollars 2><^>' (intiKiit, which, ca[)italized, would not amount to a capital exceeding ($0,500.00) six thousand five hundred dollars; but the said Respondents are 40 willing, and ott'r, [)eiiding this suit, to deposit in the office t)f this Court, or as the Court may order, the sum of ($8,000.00) eight thousand dollars, in sueh bonds or security as may be ordered to secure the interest and rights of said Reverend Robert Dobie. or mil fur 1 lu eto. (ivy the lu luuy 1)11, et ectiuii 'ZO 0. jner. 30 Idelltrt. >anadti, lug ami II : liestioii liiccord- Id iifty teediug I its are 40 as llu' huds or Ivereiid 139 Wheretbri! tlio said Respondents pray that ihey may bo permitted to deposit in tlu' olfice of the Prothonotary of this Court, or in such phice as ordered by your Honor, the sum ihr rapital . iehl to the Petitioner an annual allowance of six hundred dollars per inmuni ; thiit Petitioner, in eighteen hundred and fifty-five, was t-nti- tled to draw and receive from the ()rown tlie said capital sum of ten thousand dollars, and to invest, dispose or devise the hame as he might think proper, but Piititioner in consideration of the creation of a permanent endowment and trust, (jiedistli which was, in said year eighteen hundred and fifty-live, created and formed by Juno 187!). 1(1 the said Peiitioner and the other comtuuting ministers for the benefit of the said —-contlnutd. I'resbyterian Church of Canada in eonnection with the Church of Scothmd, and of the iniinsters thereof, upon certain fundamental conditions tht^n and there pres- cribed and entered into between himself and said other comnniting nnnisters, and amongst others, upon the fiuidaniental princi[)le, which it should not l)e co:n- |)etent for the Synod of said Church at any time to alter, unless with the consent of the nduisters gianting such power and authority, that all persons who should have a chdm to such trust nnd the fund therel>y created, should l)e ministers of the Presbyterian Church of Canada ill connection with the Church of Sct)tland, and that they should cease to have any cliuni on or b.' entitled to any share of 2u the said commutation fund whenever they should cease to be ministers in connec- tion with said Churcli, did consent and agree to renounce, and did for said consi- derations renounce, the said capital sum of ten thousand dollars, which he was then entitled to, and consented and agreed to accei)t for the future a reduced an- nuity, oraiinuid allowance therefrom during his natural life, to wit, the sum of f)ur hundred and fifty dollars per annum, all which renunciations he would not have agreed and consented to, had it not been expressely provided as a funda- mental condition of such renuneiations that the money so renounced should, as in fact it was, be constituted into such a permanent endowment for said Church and its ministers, and subject to said further condition that all ministers seceding from 3(j or ceasing to be members thereof should forfeit the right to all claim thereto in principal or in interest. That the said Petitioner as one of the original commutorsof the said " Clergy Reserves," was a party to and was instrumental in forming tnid constituting a trust for the l)enelit of the said Presbyterimi Church of Canada in connection with the Church of Scotbuid, and of the ministry of said Church, and became, and was iind is interested in having, and entitled to have the purposesandobjectsof the said original trust strictly and faithfully carried out, auil would be vioUvting his duty as one of the original commutors, and ass a member of the said Church, insufTering or i)ermitting said fund to be deviated from its original purposes. ' 40 Th:it no poiyer, or authority either Legislative or otherwise, could legally divert the said trust from its original purposes without the unanimous consent of all those who constituted the same by the abandonment of tlieir personal rights and [)rivilege8, which they then had in respect to the same for the purposes iiforesaid. That Petitioner is in good faith in instituting the present action, is not acting from malicious motives, but personally, and as the representative of many others in different parts of Canada, and with the concurrence and by RKCOllD. In the Superior Convt. No. 40. AnswtT to Fleas, filed 18th June 1K79. — continueih f 142 the iulvice of the luiniHters ami iiiemliers mid iuUiereiits oC the aaid Presby- terian Church 1)1" Caii.'uhi in connection with the Churcii oi' Scothmd, and tlie S^nod thereof. That a meeting of the Synod of the Presbyterian Church of Cana(hi in connection with the Cliurch of Scotland, vvhh duly called, and did meet in Saint Paul's Church in Montreal, on the fourteenth and lilteenth of June, eighteen hundred iind seventy-live, at which meeting certain resolutions were carried to giv<; ellect to a secession from the Siiid Presbyterian Church of Canada in C(.)nnection with the Churcii of Scotland, to certain other religious denomina- tions, to wit, the Canada Presbyterian Church, the Church of the Maritime Pro- l(» vinces in connection with the Church of Scotland, and the Presbyterian Church of the Lower Provinces. That at said meeting of Synod the Petitioner protested in tiie forms pre- scribed by the Synod of the said Church in such cases, as will appoar from the minutes thereof, ;ind did protest notariiilly, by the ministration of Charles Gushing, Esquire, notary public, against said secession, and the consummation of a union between the Presliyterian Church of Canada in connection with the Church of Scotland and said other religious bodies, copy of which protest is herein filed; yet notwithstanding the said protest of Petitioner, the personal Respondents and diveis others, ministers and elders mentioned in the petition herein, on the l'ii lifteentli day of June, departed from Saint Paul's ('hurch and went to another building in the said city of Montreal, to wit, to the Victoria Skating Rink, and there united with the said Canada Presbyterian Church and said other bodies ; but Petition-n* and divers others, ministers and elders, on said mentioned day, remained in said Saint Paul's Church, and there continued legally and regularly the proceedings of said Synod of said Prcsl)yterian Church of Canada in connection with the Church of Scotland, and (Udy adjourned, and have since regularly met and carried on the bn.sine.ss of the said Synod of the said Church until the present time, and since the waid lifteentli of June continuoiasly to the pres-'ut time, the said Pri'sbyterian Church of Canada in (Connection with the Church of Scotland, 3U has continued its existence and organization in connection with the Church of Scotland as previously, and is now identical in standard and belief, in church government, and in every other respect with the said Presbyterian Church of Canada in connection with the Church of Scotland, belbre the lifteentli day ot" June, eighteen hundred and seventy-five, and is in fact the same Church. That the Synod of tin? Presbyterian Church of Canada in connection with the Church of Scotland, had no power, and never had power, either by resolu- tion or otherwise, to aflect the civil rights of Petitioner, and the said Synod never had any other imlependence or control other than in matters spiritual and eccle- siastical, as defined in the Declaratory Act of the Synod, in eiighteen hundred 40 and forty-four, lo wit, matters coming strictly within its own confines, but the Petitioner expressly denies that the said Synod ever had any power by majority to affeui liiii civil rights, or to ai'iogate to itself rf^'.its of control which it did not and could noi possess, or to change or vary the terms of a trust regulated by ex- press stipulations made by the persons constituting it. That the corporation. Respondents, were and are bound to administer the funds under their control, in accordance with the fundamental conditioua >y- in in ne, inii- I'ro- jrch lu the ling, mion ch of filed ; s and \ the ill other c, and ;)die8 ; d day, ly tiie eetion y met resent e, the ,)tiand, ;iO rc!h of hurch rch of lay of with resoUi- 1 never ecclc- iindvcd -lu jut the [ijority Lid not ,y ex- ler the litions Jn the iSiiprrior (Joiirt. No. 40. 143 preHcrilx'd by the Petitioner, and the other constitnonts of the trust, ami in KKCOilD. ai'cordaiico with the provisionn of the Act of the Parliament of Canada (twenty- si'cond Vic, ciiiip. sixty-six). Thiit the siiid Petitioner, by reason of his maintaining his connection with the said Prt'sbytcrian (Jinirch of Canada in connection with the Clnu'di of Scotland, ami by reast)n of his not being a member of anothtT body, to wit, the Pi'esbyterian Church in Canada, und(M' and by virtue of the unconstitutional Answer to legislation ol>tained by the Respondents, and refirreil to in their plea, has been ciff^'ufi deprived of the right to assist in the a'lmiuistrntiou, and to have a voice in the ju,jy lg^Q^ 10 control of the said fund. —tmitinueiK That the ministers and members of the said Presbyterian Church of Canada in connection witii the Church of Scotliind, to wit, the personal Respondents and others mentioned in the Petitioner's petition, who seceded from the said Presby- terian Church of Canada in connection with the Church of Scotland, on the fifteenth day of June, "jgliteen hundred and seventy-five, and became, with others, absorbed into tlie Canada Presbytiriau Churcli, are in precisely the same position, as regards the right to participate in the benefits and revenues arising from the said fimd, as were the seceders fn)m the said Presbvterian Church of Canada in connection with the Church of Scotland who, in eighteen hundred 20 mid Kirty-three, and eighteen hundred and forty-four, left the said Church and formed themselves into a religious association called the Presbyterian Church of Canada, adh(>ring to the same staudards as the Presbyterian Church of Canada in connection with the Church of Scotland, the nnnisters of which latter body, to wit, the Presbyteriiui Church of Canada, were declared by the law officers of the Crown to have forfeited their rights, and to be ineligible to participate in the benefits to be derived from the said " Clergy Reserves" and their proceeds. That the terms of the agreement entered into by the Petitioner and the other commuting ministers, in eighteen hundred and tifty-five, with regard to the constitution of the said permanent endowment fund, were expressly framed to 30 i)revent seceding ministers from being eligible, after secession, to participate in the benefits arising I'rom the said fund, and to preserve the said fund solely and only for the benefit of those who maintained their connection with the Presbyte- rian Church of Ca'.ada in connection with the Church of Scotland. That the right to participate in the " Clergy Reserves" was granted ajid conceded to the Presbyterian Church of Canada in connection with the Church of Scotland, on the ground that the said church was identical with, and the only representative in Canada of the Church of Scotland aa an Estaldished Church of the United Kingdom. That Petitioner does not ba.se his claim to receive his allowance of four 40 hundred imd fifty dollars per annum, upon any pretended concessions made to liim in the |illegal and unconstitutional Acts of the Local Legislatures of On- tario and Quebec referred to in said plea, irrespective of which Acts he is en- titled to his allowance, and he expn-ssly denies that he has ever recognized the authority of the Respondents to hohl and administer the said funds under the said Acts. That the Presbyterian Church in Canada is not the same, or identical with the Presby terian Church of Canada in connection with the Church of Scotland, but is ■ ''W ■4 I IMAGE EVALUATION VEST TARGET (MT-3) // Wvf / C/j fe 1.0 I.I 1.25 " ■■" "12.0 1.4 1.8 1.6 ■'yw v3 # « a % v« «J. U>. & % 1^ \ U4 UECOHI). :- ■'^■ III the Superior Court. No. 40. Answer to Pleas, filed 18th June 1879. — continued. a differont and distitict boily, and is ooin|)osod of a number of church bodies or a.'yterian Church of the Lower Provinces? A. So 1 was informed. Q. What WHS the name that this amidgamated body took ? A. I believe it was uidled the Presbyterian Church in Canad:i. Q. At the time this iniion was actually brought about, you were absent from the country 1 believe ? A Yes ; I was in Scotland. Q. How long was it after June, 1875, before you returned to Canada? A. About three or four months afterwards. Q. Notwithstanding this union, when you returned to Canada, did you fiiui ;{(i that the Presl)y terian Church of Caiuida in connection with the Church of Scotland, had any existence in this country? A. It had. Q. Dili many of the ministers of the Presbyterian Chunih of Canada in con- nection with the Church of Scotland, unite with the new body, the Presbyterian Church in Canada? A. Yes ; I believe so. I have been told so. Q. You are not, of course, a member of the Presbyterian Church in Canada yourself? A. No. 40 Q. But you have no doubt that quite a considerable number of the old ministers aetuaUy associated themselves with the new body ? A. Yes ; 1 believe so. Q. Since the 15th of June, 1875, has the Presbyterian Cliurch of Canada in connection with the Church of Scotland continued its exis^MiC'.' in this country? A. Yes. Q. Under what name ? A. Under the old name. 149 and? what ch of same !anadix l<> tation n con- cortaiii ith the Prcsby- ith the 20 ;nt from (la? yoii fiml 'W Bi'otlanil, |;l 111 coii- bytcrian Canada the old Canada pountry? 10 Q. Has it kept up its Presbyteries, Synods, and general Church organization RECORD, as previously ? A. It has. Q. Have you any doubt now about its having, and having had since the 15th of June, 1875, a distinct organization ? A. I have no doubt. Has it clergymen ministering within its domain ? It has. Do you know the Petitioner, the Rev. Mr. Dobie ? Yes; I have k)iown him since 1871. When you came here, of what church organization was he a member ?qLq^°° continued. Q. A. Q. A. Q. and a minister ? In the Superior Court. No. 42. Deposition of the Rev. Gavin Lang, produced by Petitioner '!'>■ A. Of the Presbyterian Church of Canada in connection with the Church of Scotland. Q. Has he continued to be such up to the present time ? A. Yes. Q. He is another of those ministers who did not join the Presbyterian Church in Canada ? A. Yes. 20 Q. Is he now, and has he been since you came to this country, a minister of the Presbyterian Church of Canada in connection with the Church of Scotland, in good standing ? A. Yes. Q. What is the name of his particular Church or congregation ? A. St. Andrew's Church, of Milton, in the Province of Ontario. Q. Are you at present acting in any official capacity in connection with the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland ? A. I am Synod clerk, pro tempore. I have in my possession, as such Synod 30 clerk pro tempore, the acts and proceedings of the Synod of the Presbyterian Church of Canada, in connection with the Church of Scotland, on and since the 15th diiy of June, 1875, ending with the Acts and Proceedings of the latest meet- ing of the Synod of the sniil Church, held at Toronto, in the Province of Ontario on the 12th day of June instant, which latter minutes are signed by myself as clerk pro tempore, and also by John Macdonald, as moderator of the said Synod. Upon and since the 15th day of June, 1875, the Rev. Robert Burnet has been acting as clerk of the Synod of the said Presbyterian Church of Canada in connection with the Church of Scotland, and the signature " Robert Burnet " to all the min- utes of the said meetings of Synod, prior to the last meeting, is the signature of 40 ■ -K) the said Robert Burnyt. The minutes of the meeting of the 15th June, 1875, are also signed by Robert Dobie, as moderator ; also the minutes of the meeting of the 30th of November, 1875, are signed by the said Robert Dobie. The min- utes of the meeting held on the 13th day of June, 1876, are signed by David Watson, as moderator, in addition to the said Burnet ; and also the minutes of the meeting held on the 14th day of June, 1876, are signed by the said David Watson as moderator. The minutes of the meeting held on the 5th day of June 1877, are signed by myself, as moderator ; also the minutes of the meeting held on 150 mm RECORD. In the Superior Court. No. 42. Deposition of the Rev. Gavin Lang, produced by Petitioner 25th June 1879. _ — contintted. the 6th day of the said month of June are signed by myself, as moderator ; also the minutes of the meeting held on the 7th day of said month of June of the same year. The minutes of the meeting held on the 11th day of June, 1878, are signed by John Davidson, moderator; and also the minutes of the meeting held on the 12th day of June of the same year ; and pIso the minutes of the meeting held on the 13th day of Juno of the same year are signed by the said John Davidson, as moderator. Th'j minutes of the meeting held at Toronto on the 10th day of June instant are signed by John Macdonald, as moderator; and also those on the 11th day of said June, and also those on the 12th day of said June. I produce all the said original minutes between the dates mentioned, and file a copy thereof, cer- lo tified by me, which I mark " Petitioner's Exhibit at Enquete Zl." The eiid copy so filed by me is a true copy of said original minutes. Q. Are you aware that since the 5th of June, 1875, the Board, Respond- ents, have been acting under and in virtue of certain legislation obtained from the Legislature of the Province of Quebec ? A. I believe so. Q. On about the 15th June, you were a member of this Board, Respond- ents, in virtue of the legislation obtained from the old Province of Canada ? A. Yes. Q. Under that legislation obtained from the old Province of Canada you 20 would have had, in the ordinary course of tlnngs, to retire from the Board after a certain term of years ? A. Yes. Q. And all other members also in a certain rotation ? A. Yes. Q. Under the new legislation of the Province of Quebec, your name has been continued on the list as a member of the Board still ? A. I believe so. Q. Have you been summoned to attend any meetings of this Board lately? A. Not lately ; not since May, 1878. 30 Q. Do you know if they have held any meetings lately ? A. I do not ; I have not been summoned to any. Gross- Examin ad. Q. You stated that you received a presentation in 1870, to St. Andrew's Church, Montreal ? What do you mean when you state that you received a presentation ? A. I received a presentation — a document inviting me to assume the pas- torate of that Church . Q. You mean simply that you were invited to come to Montreal and as- sume the pastorate of that Church ? 40 A. I took it in the form of a presentation Q. What do you understand by the term presentation ? A. It was laid as such before my Presbytery in Scotland. Q. This presentation as you all it, was it not simply in the form of a let- ter or invitation from the St. Andrew's Church in Montreal, to come here and become the pastor of the said Church ? 10 > the mine gned I the Id on )n, as June 11th ,11 the f, cer- Icopy apond- l from jspond- ? ,da you 20 I after a irae haB I lately? 30 aidrew's [ceived a the pas- and as- 40 of a let- I here and 151 A. It was a document signed by three gentlemen in Scotland, acting for the congregation of St. Andrew's Ciiur:;h, Montreal. They were Dr. Norman Macleod, Dr. Macduff and Mr. James A. Campbell. Q. Do you know the circumstances under which those gentleman undertook that duty ? A. They said they were authorized by the congregation in Montreal to make this presentation. Q. After receiving that document, what was the next step ? RECORD. In the Superior (Jourt. No. 42. Deposition of the Rev. Gavin Lang, A. The document was laid before the Pre.ibytery of Hamilton, in Scotland, produced by 10 and the process of translation begun Q. Whiit was the process of translation ? A. The same as from one parish to another in Scotland. Q. In what way? A. The documents of translation were sent out to the Presbytery of Mont- real, in connection with the Presbyterian Church of Canada in connection with the Church of Scotland, and received by them. Q. And you came to Montreal and were inducted here? A. I was inducted on the 28th November, 1870, by the Presbytery of Mon- treal of the Presbyterian Church of Canada in connection with the Church of 20 Scotland. Q. You were inducted by the Presbytery in the usual way to the pastoral charge of St. Andrew's Church of Montreal ? A. Yes, as I understand the usual way. Q. What document was laid before the Presbytery of Hamilton, in Scotland, at the time you say you were translated ? Was there a call from St. Andrew's Church, Montreal, to you, calling you to be their minister ? A. Not before the Presbytery, as far as I know. Q. Did you receive such a call before you came ? A. No. 30 Q. Was no such call sent ? A. There was a letter from yourself (Mr. Morris, counsel for Respondent) forwarded to me. Q. When you were translated, in Scotland, from one congregation to an- other, as I believe you were, was there not always a call before the Presbytery ? A. Not before the Presbytery ; I was not translated from a congregation ; I was translated from one parish to another parish. Q. In such cases did you not always receive a call before translation ? A. The call was always presented after the presentation was sustained. Q. But I ask you if you received a call before translation ? 40 A. Of course, yes, after presentation. Q. Is it not always the case in Scotland that the call is received and laid before the Presbytery before the translation takes place ? A. Yes. Q. Have you any doubt that in this case before you were translated to Montreal a call from St. Andrew's Church, Montreal, was sent to Scotland and laid before the Presbytery ? A. I do not know. Petitioner 25th June 1879.— continued. I !■ : i t if RECORD. In the Superior Court, No. 42. DopositioD of the Rev. Qavin Lang, produced by Petitioner 25th June 1879. — continued. 152 Q. You never saw such a cull or heard of it ? A. Not in Scotland. Q. When did you first see it or hear of it ? A. I think the call was moderated after I came here, if I remember right ; but we attach very little importance to calls in Scotland ? Q. Then, as a matter of fact, tiie translation you have spoken of from Scot- land to Montreal could not have been a translation in the same sense as a trans- lation is in Scotland, seeing that no call was laid before the Presbytery in Scot- land, previous to your translation ? A. My parish was not declared vacant in Scotland till I was inducted here, 10 and notification of the induction was sent from here. I said I did not know whether a call had been laid before the Presbytery in Scotland. Q. Could a translation take place in Scotland without a call ? A. I do not know. Q You stated that on the 15th of June and during the whole of that month you were absent from this country in Scotland ? A. Yes, in Scotland or England. Q. Then personally, you know nothing about the proceedings which took place in the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, at its meeting held in Montreal in June, 1875? 20 A. I do not know the force of the word " personally." What I had was from newspaper reports or correspondence. Q. And that, then, is all you know on the subject ? A. Except from the sub,tiequent proceedings. Q. How many of the ministers, who were ministers of the Presbyterian Church of Canada in coiniection with the Church of Scotland in June, 1875, en- tered into the union of Churches of which you have spoken in your examination in chief? A. I do not know the exact number. Q. How many of the said ministers did not enter into the said union ? 30 A. I do not remember. Q. Can you tell by referring to the minute book you produced to-day ? A. I do not think I could. Q. Are you positive that you cannot? A. I refer to my former answer. Q. Will you look at the minute book and see if it does not show how many ministers did not go into the union ? A. 1 am not sufficiently acquainted with the minute book. The only min- utes which 1 kept were those of the last session. Q. You say in your ('.\ainin:ition in chief, "since Jinie, 1875, the Presbyter- ian (Uiurch of Canada in connection with the Church ofScotlimd continued under its 40 old name;" tiien can you not toll me how many ministers continued under such name and how many congregations and how many presl)yteries ? '■ A. I cannot tell oft' hand. • : > ' •■' Q. Can you tell nie by referring to your minute book ? . • A. I am not sufficiently acquainted with the minutes. ■ ■-. ?T . ■ ■ ' ■■ ght ; Scot- ran 8- Scot- here, 10 know mon th [i took ith the ad was 20 )j/ terian 75, en- inrttion 30 )W many ilv min- resbyter- mder its lo ler BUcU Do you know in what condition of health he is at the present time? I only know he has been vary ill, and he is very ill still with typhoid It was on account of his illness you were called upon to keep the 153 Q. Does this book, which is produced marked " Z," contain the original RECORD. minutes you have referred to when you produced this book ? A. I believe so. „^^ '^* Q. Do you know when this book was written up and where ? Coui^ A. I do not know; I got tho book from the clerk of the Synod. Q. Do you know who keeps the minutes of the Commission of the Synod No. 42. which is mentioned in this book ? STo Re° A. I funcy it is the Reverend Robert Burnet. OavinLanc Q. 1h he the clerk ? produced by 10 A. I believe so. Petitioner . . 25th Juuo Re- Examination. 1879—. continued, Q. How does it happen that you have been for some time acting as clerk ^tro tempore? A. In consequence of the illness of the clerk, the Reverend Robert Burnet. Q. A. fever. 20 Q. minutes ? A. Yes. Q. Mr. Morris requested you to take the minute book produced and men- tion the names of the clergymen and presbyteries acting in connection with the Presbyterian Church of Canada in connection with the Church of Scotland, to which you answer that you were not sufficiently acquainted with the minute book. Will you explain if the contents of the minute book itself wouM supply the information asked for as to those ministers maintaining their connection with the Presbyterian Church of Canada in connection with the Church of 30 Scotland ? A. It must contain the names of a large number of them. Q. It would at all events contain the names of those who attend the respec- tive meetings of Synod ? A. Yes. Q. It would not show those outside who did not attend ? A. No. Q. Have you any ministers or missionaries acting in connection with the Church at the present time, and for some time past, who are not members of the Synod ? 40 A. Yes. Q. You have been asked to mention the names of ministers maintaining their connection with the said Church ; can you mention about what number of congregations are at present maintaining connection with the Presbyterian Church of Scotland, to whom the ministrations of religion are given ? A. I believe there are upwards of thirty ; but I do not know the exact number. , , . . . : . 1 » \ \] -m I '.if RECORD. In the Swerior Vourt. No. 42. Deposition of the Rev. Qavin Tjang, produced by retitionor 25th Judo 1879.— continued. 154 Re- Gross- Examined. Q. Will ycu be kind enough to give the details as to the congregations you have referred to in ^our last preceding answer ? A. I have already stated that I do not know the exact number. Q. How IS it that you could recollect there are about thirty ? A. Simply from a statement which I saw at the Synod, which stated the fact in the aggregate. Q. Then you have no personal knowledge as to the fact that there are about thirty. A. I believe it. Do you personally know it except from the statement you say you have 10 Q. seen ? A. Q. I do not doubt it. I want to know whether you know it of your own knowledge, except from that statement ? A. 1 know it generally sufficiently not to doubt it. Q. From what is that knowk'dge derived ? A. I stated, in my former answer, from the document before the Synod. Q. Does the roll of the said minute book, at thi? commencement of each session, show the number of congregations thai you have referred to ? 20 A. 1 am not the clerk of Synod ; I am not sufficiently acquainted with the procedure. Q. Is it not a fact that the roll should show it, aocordinfr to usage ? A. I am not sufficiently acquainted with the clerk's duties. And further deponent saith not, and this deposition having been read to him, he declares it to contain the truth. (Signed) S. A. Abbott, Stenographer. No. 43. Adaiission of Parties, filed 27th June 1879. Schedule No. 53. Canada, Province of Quebec, District of Montreal, In the Superior Court. The Reverend Robert Dobie, ... 30 - Petitioner. v». " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," etal., - Respondents. Admissions of the Parties. To save costs the Petitioner and Respondents pleadin>^ hereby admit : — 1. That the printed official minutes of the Acts and Proceedings of th. Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, 40 from the ye.-ir 1831 to the year 1875, both inclusive are to be found in the three volumes of books filed by the Petitioner in this cause on the twenty-first day of -4- *{!.• :"h: « 'I 10 ,10118 \ the •e are ihave except lod. jf each ilh the 20 read to ler. 30 lioner. londentB. |i. Synod icoUand, 40 the three It day of In the Superior Court. No. 43. 155 March hit«t, each of said Iwoka being marked " BBB." The said Rospoiidents REOOHD, pleading contending that said Acts and Proceodings end at page marked " A" in the vohmio endorsed from 1870 to 1875, whereas the Petitioner contends that said Acts and Proceedings in so far as contiuned in said book " BBB," from 1870 to 1875, end at page 1'25 of the Acts and Proceedings of Synod for Jnne, 1875, and the said parties consent that the said printed Acts and Proceedings do avail as legal proof in this cause, in the sanio manner and to the same extent as A. ,'" ''f'"" if the said Acts and Proceedings of said Synod htid becin regularly proved by the {■^\^,^l 27th' production and proof therein of the original minutes, the whole in so far as the Juno 1879. 10 said minutes are relevant to the issues in this cause. — continued. 2. That Petitioner's Exhibit " EE," filed on the said 21st day of March, 1879, is nil official printed copy of the Acts and Proceedings of the first General Assembly of the Presbyterian Church in Canada, and the said parties consent that the said printed Acts and Proceedings do avail as legal proof in this cause in the same manner and to the same extent as if the said Acts and Proceedings of said Assembly had been regularly proved by the production and proof of the original minutes, the whole in so far as said Acts and Proceedings are relevant to the issues in this cause. 3. That the l)ook filed in this cause as Petitioner's Exhibit " KK" on the 20 said 21st day of March, 1879,connnencing on page 147 with the words '* Colonial Churches," and ending with the words " for the us'^ of immigrants," on page 149 of said book is the Report to the Gi-neral Assembly ot the Church of Scot- land,, in Scotland, by its Colonial Committee in Scotland, presented in May, 1853, and that the Reverend Robert Dobie referred to in the said Report is the Peti- tioner in this cause, and the said parties consent that the said printed Report have the same elTect, and avail to the same extent for the purposes of this suit as the original would do if produced and duly proved herein, and that the said Petitioner came to Canada in the vear 1852, after l)eing selected as above mentioned in said report, and that after acting as a missionary and preacher for some time in 30 the city of Montreal, of the Presbyterian Church of Canada in connection with the Church of Scotland, he was subsequently, to wit, on the 7th day of October, 1853, ordained and inducted as a minister into the charge of the church at Osna- bruck, in the Presbytery of Glengarry, in the Province of Ontario, under the ecclesiastical jurisdiction of the Presbyterian Church of Canada in connection with the Church of Scotland, and that the Respondent's Exhibit No. 3* is a correct extract from tlie records of the Presbytery of Glengarry, referring to the said ordination and induction. 4. That the book filed as Petitioner's Exhibit " LL" on the said ?.]st day of March, 1879, is the official printed digest of the minutes of the Synod of the Pres- 40 byterian Church of Canada, from the first meeting held at Kingston in July, 1844, down to the year 18G1, both inclusive ; and said parties consent that the sai(i printed digest have the same effect, and avail to the same extent for the purpose of this suit as the original of the minutes contained in salt' '- would do if pro- duced and duly proved in this cause, the Respondents ; " ' ing their right to oliject to the relevancy of the said ))ook " L.L." to the issues herein. 5. That the copy of the Statutes of the Legislature of the Province of Ontario printed on pages 104, 105, IOC and 107 of the Acta and Proceedings of said Synod, t'j ivy KKCOllD. In the Sttj)erior Court. No. 4^,. Admission of Parties, lilcd 27th June 1879. — continued. 156 of the Presbytorian Church of Cauiula in connection with the Church of Scothind for 1875, coiitainoil in said Petitioner's E.^hibit " BBB." is a true copy of the statute of which it purports to be a copy, passed by the Legislature of the Province of Ontario. 6. That the said Petitioner was one of the ministers of the Presbyterian Churi'ii of Canada in connection with the Church of Scothuid, who commuted his cbiim to an iinnual allowance (that he h.id i\ right to claim by virtue of the secu- lurization of the Cicrgy Reserves, and under tho authority of the Act: 18 Vic, cap. 2, and the other Acts relating thereto), said commutation being upon the terms of the resolutions passed by the Synod of said Church, on the 11th day of 10 January, 1855, hereinafter set out in the next following admission. 7. That the allegations contained in the following portions of tho Petition- er's petition are true, to wit ; — (n) Fr^m line 43 on page 2 down to and inclusive of line 8 on page 9 of said petition, being as follows: " That by Acts of the Imperial Parliament of Great Britain, and of the '' Imperial Parliament of the United Kingdom of Great Britain and Ireland, the " Sovereigns of Great Britain and of the Uniteil Kingdom of Great Britain and " Ireland, were empowered to authorize the Governor, or Lieutenant-Governor, " of each of the then Provinces of Upper and Lower CiUiada, respectively to make 20 " from out of the lands of the Crown within the said Provinces respectivLdy such " allotment and appropriation of ! mds, as therein mentioned, for the support and " maintenance of the Protestant clergy within the said Provinces, and to apply " the rents, profits and emoluments which might at any time arise from such " lands, so allotetl and appropriated, solely for the maintenance and support of " a Protestant clergy within the Province in which the same might be situated, " and to no other purpose whatever. *' That subsequently thereto, in pursuance of the said Acts, certain lands of " the Crown were from time to time reserved for the purposes mentioned therein, " which said lands were known, and were and ''re commonly designated by the 30 " name of the * Clergy Reserves.' " That the Governor, Lieutenant-Governor and Administrator of the here- " tofore Provinces of Upper and Lower Canada, respectively, were empowered " with the consent of the Executive Council of such Provinces, respectively, and " in pursuance of His Majesty's instructions, to sell and convey a part of the said " 'Clergy Reserves' in each of said Provinces, and to invest the proceeds of such " Sides in the Pu'ulie Funds of the said United Kingdom, and to appropriate thedivi- " dends and interests of the ';iu;:"ys so invested for the support and maintenance " of a Protestant clergy within the sj:id Provinces, solely and to no other pur- " pose whatever. 40 " That by iinother Imp<^rial Act the sale of tho entire Clergy Reserves in " the Province of Cantida. and the investment of the proceeds of such sale " and the distribution of the interests and dividends of such investment, " subject to certain conditions, were authorized for the purposes hereinbefore " mentioned. " That by another Imperial Act tho Legislature of the heretofore Province " of Canada was authorized to dispose of the said Clergy Reserves and to make 157 and the ince svian i bis 30CU- Vic, ^ the ly of 10 ition- ! 9 ot jf the d, tho in and rernor, ) make 20 [y suoh art and J apply III such jport of ,tuateson, Mr. Alexander Wiillace, Dr. Robert 159 iiin jnt uch the tion iuce ,lion thin seive 10 low- ally, 1 the i ties' Acts with 5 such hereof ilaturo 20 mined Mont- d and i from r eigh- ivch of 30 [icluded there ; le thou- Psaliii toWt-Vrf tell it 10 lOanuda jtitvited sede- Johii Muir, I Rohert « McGill, Mr. Jumes T. Paul, Mr. Thomas Haig, Mr. Arcliibakl II. Milligan, Mr. IIECOIID. '• John McDonald, Mr. John McKenzie, Mr. Hugh Uniuhart, Mr. John Mc- — — " Lauriu, Mr. Thomas McPherson, Mr. Enoas McLean, Mr. Donald Munro, Mr. ^.„"^j-^^ " Thomas Scott, Mr. Andrew Bell, Mr. Robert Dobie, and Mr. Jolin White, min- CourL " isters ; together with Mr. Alexander Morria, .»lr, John Thompson, Mr. Thomas " A. Gibson, and the lion. Thomas McKay, elders. No- 43. " The moderator hiid before the Synod a requisitioi; which had been ad- /J^'^f.'"" " drc'ssed to him, (Muling on him to summon a meetnig oi the Synod ; also a copy f^\^^ 27tli " of hia circular calling the present meeting. The same were read as follows : — June 1879. 10 " Quebec, 11th December, 1854. *' Reverend and Dear Sir, " I beg to intimate to you that it is the opinion of the Committee of Synod, *' appointed to wateh the progress of Legislation in respect of the Clergy Re- " serves, that the Bill introduced by Government, having now passed both '' Houses of the Legislature, it is desirable that a meeting of Synod should be '' called as early as possible for the purpose of taking such steps as nuiy be " necessary to take advantage of the couunutation clause in said Bill, and in the " name ot the Committee I beg very respectfully to request that you will call '' such meeting at the time and place you think most convenient. 20 " I am, Reverend and Dear Sir, " Your faithful servant, " (Sd.) John Cook. " We, the undersigned, hereby concur in the necessity of calling a special " meeting of Synod at the earliest period the forms of the Church will admit. " (Sd.) Alex. Mathieson, " (Sd.) Robert McGill. ' The Reverend, " The Moderator of the Synod of the " Presbyterian Church of Canada 30 " in connection with the Church of Scotland. " Kingston, 20th Dec, 1854. " Reverend and Dear Sir: " In compliance with a request addressed to me by the Convener and other " members of the Committee appointed to watch over the progress of legislation " in respect to the Clergy Reserves, to call a special meeting of Synod as early " as i)ossible for the purpose of taking such steps as may be necessary to take " advantage of the commutation clause in the Act which has lately been passed " by the Provincial Parliament, I have now to intimate to you that a special "• meeting of Synod v/ill be held in St. Andrew's Church, Montreal, on the 10th ■to " January, 1855, being the second Wednesday of the month, at half past six, p.m. " I am, Reverend and Dear Sir, " Yours faithfully, " (Sd.) James Williamson, Moderator. " P.S. — It has been thought by several of my brethren with whom 1 have "' eonferied on the subject, and 1 concur in the opinion that, in the circumstances " of the case, Montreal is, on the whole, the most suitable place for the said " meeting of Synod on this occasion. 160 RECORD. In the Superior Court. No. 43. Adniissioii of PiirticH, filed 27tli Juno 1879. continued. *' The Synod unanimously ngrood to iipprove the nioderator'B conduct in call- " ing this meeting. " The Synod then called lor the report of the Committee appointed to wntch " over the interests of the Church in regard to the Ch'rgy Reserves, which was '• given in and read by Dr. Cook, the Convener, stating that the Bill for the Secu- " larizatioii of the Clergy Reserves, which hud heen introduced into Parliament by '' the Government, had been curried in both Houses, and assented to by the Gov >r- '■ nor-General ; — That it eontained .i clause securing to all ministers setth^d previ .is " to the Uth Mil}', 1858, the date of the passage of the Imperial Act, payment " of their salaries from the Clerg}' Reserve i^Vnid during their lives or incumben- 10 " eies, and at the same time authorizing the Government to commute* the claims " of incumbents, with the consent of the parties and bodies severally interested, " and that the Comnuttee, for reasons which tiny stated, had not considered it " expedient to interfere in any way with the passing of the said Bill, but feeling " assured from many considerations th;it it would be for the benefit of the Church " to take ailvaiitage of the commutation clause of the Act, the Committee had " requested the moderator to call a pro re nata meeting of Synod to take the " matter into consideration, and make the necessary arrangements ; and the " Committee furtiier, and at great length, recommended that the Synod should " agree to commutation. 20 " The Synod approved of the conduct of the Committee, and ;d'ter some " diseussion, agreed to defer the furtiier consideration of the re[)ort until to- " morrow, and instructed the afoiesiid Committee to draft resolutions to be *' then laid l>efore the Synod for their consideration as to their action in the " matter. " The Synod agreed to spend a portion of time in the morning in devotional " exercises. *• The Synod then adjourned to meet again at half-past eleven o'clock to- " morrow forenoon, and was closed with prayer." Diet II. 30 " At Montreal, and within St. Andrew's Church there; " Thursday, the eleventh day of January, eighteen " iiundred iiiid lifty-five years. " The wh.ich diiy the Synol of the Presbyterian Church of Canada in coii- " nection with the Church of Scotland, m"t, according to adjournment, and was " constituted with prayer. "' On the call of the moderator, the Revcii'iid Dr. Cook conducted the devo- " tional exercises of the Synod in pridse, reaiiing the Scriptures and prayer. " The minutes of yesterday were read and approved. " The Clerk stated to the Synod that he had received, a considerable time 40 ago, a letter from the Inspector-General's Department of the Government, re- (piesting him to make a return, to be laid before Parliament, of all per.'^ons connected with this Church, ' who at the dale of the passing of the Act of the Imperial Parliament to make provision concerning the Clergy Reserves of this ' Province, viz., Dth May, 1853, were receivii.g any income or allowance iVoiii " such portion of the proceed.s of the Clergy Reserves as had been granted to call- Yiitch li was Secvi- nt by iov-^r- 3Vi .18 mbcn- 10 claims _:red it feeling Dhnrch eo had ike the Liid the should 20 er some intil to- is to be I in the fvotional clock to- ad ;li there; (iiiihteen in con- iind was [he devo- [ycr. |il)le time 40 lient, re- |l pers^ons L ct of the Es of this luce fjoin Iranted to In the Siiprrior Court. No. 43. Adinisision 161 '- the Synod of the resbyterian Oliiirch of Caiiiida in a)niiection with the Church IIKCOHD. " of Scotland, .sptcifying the names and ages of wuch persons, the annual "pounts " of their allowance, aiul through whom it is paid;' and that he had immedi- " ately issued a circular to the several parties, requcfjting a statement of their " ages to bo returned to him — Mr. Allan, of Montreal, having kindly offered to " furnish him with some other items — but that he had been as yet unable to " make the required return, in consequence of a considerable number of the min- *V'p"'""'^ " isters having neglected to make returns U) him, alth.^jgh written to a second gicj 27tli' " time on the subject; and that he had also, at the suggestion of some of the June 1879. 10 " Clergy Re.serve Commissioners, written to all of the parties whose names were — continvrd. "■ on the roll tor salaries. The Synod, while approving of the conduct of the " clerk, di'V^cted him to use all diligence in inxxjuring as soon as possible, the '* whole of the required information, and in transmitting to the Govern- " ment the list of incumbents up to the 9th May, 1853, to furnish at the same " time, the names of those since put upon the roll as having, in the estimation " of the Synod, claims upon the fund. " The Committee appointed yesterday to arrange measures for the consider- " ation of the Synod, rejwrted certain resolutions which the Synod proceeded to " discuss at length. 20 " The Synod having heard the report of the Committee appointed by the " Synod to watch over the interests of the Church, in so far ns these might be " affected by the action of the Legislature on the Clergy Reserves, and, also the " verbid reports of such members of the C(Mnmittee as had been in communication " with members of the Government on the subject — and, having seriously and " nuiturely considered that clause of the Clergy Reserves Act, lately passed by " the Provincial Parliament at its present si'ssion, by which His Excellency the " Governor in Council is authorized, with the consent of the parties interested, " to conmiute the salaries or allowances of ministers chargeable for life or during " their incumbencies on the Clergy Reserves fund, for their value in money : — 30 " Resolved, " 1st. That it is desirable that such commutation, if upon fair and liberal " terms, should be effected ; and that the Reverend Alexander Mfithieson, D.D., " of Montreal, the Rev. John Cook, D.D., of Quebec, Hugh Allan, Esq., of Mont- " real, John Thompson, Esq., of Quebec, nnd the Hon. Thom.as McKay, of Ottawa '' City, be the Synod's Commissioners, with full power to give the formal sanction " of tlie Synod to such commutation as they shall approve, the said Commis- '' sioners being hei'eby instructed to use their best exertions to obtain as liberal " terms as possible ; the Rev. Dr. Cook to be ccmvener ; three to be a quorum ; '•'■ the decision of the majority to be final, and their formal acts valid ; but that 40 " such formal sanction of the Synod shall not be given except in the case of min- " isters who have also individually given them, the said Commissioners, power " and authority to act for them in the matter to grant aaiuittance to the Govern- " ment for their claims to salary to which the faith of the Crown is pledged ; and " to join all sums so obtained into one fund, which shall be held by them till the " next meeting of Synod, by which all further regulations shall be made ; the " following, however, to be a fundamental principle which it shall not be compe- IIKCOIID. In the Superior Court. No. 43. Adinis.uon ol' Parties, filed 27th Juuc 1879. contidued. 162 '* tent for the Synod at any tinio to alter, unless with, the consent of the ministers " granting such power and authority ; that the intercut of the fi ml siiall be devoted " in the first instance, lo the payment of £112 10s. Od. each, and that the next ''claim lo be settled, if the fund shall admit, and jis soon as it shall ailmitof it, to " the £112 10s. Od. be that of the ministers now on the Synod's roll, and who '* have bet'n put on the Synod's roll since the 9th May, 1853 ; and also, that it shall " be considered a fundament-.il principle, that all persons who have a claim to such " benefits, shall be ministers of the Presbyterian Church of Canada in connection " with the Churcii of Scotland, and that they shall cease to have any claim on, or " be entitled to any share of said commutation fund whenever they shall cease 10 '* to be ministers in connection with the said Church. " 2nd, That so soon as said commutation shall have been decided upon and '* agreed to by the said Commissioners, the Rev. John Cook, D.D., of Quebec, shall " be fully empowered and authorised, and this Synod hereby delegate to the said " Rev. Dr. John Cook full power and authority to endorse and assent to the *' several powers of attorney from the individual parties on behalf of the said " Synod, and in tlieir name, and as their act and deed, as evidencing their assent " thereto. "3rd. That all ministers be, and they are hereby enjoined and entreated, (as '* to a measure by which, under Providence, not o)ily their own present interests 20 " will be secured, but a permanent endowment for the maintenance ami extension "of religious ordinances in the Church) to grant such authority, in the fullest " manner, thankful to Almighty God that a way so easy lifs ojien to them for " conferring so important a benefit on the Church. " 4th. That the aforesaid Commissioners be a Committee to take the neces- " sary steps to get an Act of Incorporatiim for the management of the General " Fund, so to be obtained ; the aforesaid Commissioners to constitute the said " Corporation till the next meeting of Synod, when four more members shall be '' added by the Synod. " The Synod ordered the minutes of this meeting to be printed, and a copy 30 " sent to each minister as soon as possible, and they further instructed their Com- " missioners, named above, to address a circular to the several ministers, showing " them the importance of commuting ujxjn the plan agreed to at this mteting, " and giving them full information on the subject." (i) From the last line of page 9, down to the words " fifty-five," line 23, page 11, inclusive, being as follows : " That the sole business submitted at the meeting of the said Synod of the " Presbyterian Church of Canada, in connection with the Church of Scotland, at " the diets thereof, held on the tenth and eleveni'i days of January, eighteen " hundred and fifty-live, was the consideration of [jiving force and eftect to the 40 clause permitting the Governor of the then Province of Canada in Council to '• connnute the claims of ministers, incumbents and missionaries uix>n the Clergy '* Reserves Funds, with the consent of the bodies and parties severally interested " as set out in the minutes hereinbefore recited. " That the said Synod, on its own behalf and on behalf of its members, de- " termined at its said meethig to taku advantage of the said commutation clause. i( 163 isters /otwl next it, to who , shall J such uctiou on, or cease 10 n and ;, shall le said to the le said ■ assent tod, (as iterests 20 tension ! fullest lein for 3 ueces- General le said uiU be a copy 30 r Com- lowing [noting, line 23, 1 of the land, at jighteen t to the 40 uncil to i Clergy terested Ibers, de- lu clause. In tim Superior CowL No. .3. "• and appuinted a coniniittfe, styled Conmnssiuners, to give effect to the said do- llECOKD. " terniinaiiuu, and the said Synod ordered said minutes to be printed, and in- " structed said connnittee to send a copy thereof to each ininistei' entitled to " commute. " That the said Ruverend John Ct^ok, Do- tor of Divinity, was appoinlid " conveiier and chairman of said committee, and jus such, .vas authorisi^d to, and " did, address a circular to all the then ministers and incui ibents of the said Adimiwiou " Church (Mititled to benelit.s from the said funds, amon^ others to the Petitioner, jj|j.j 27tli' " which circular wiw in the following words: — June 1879. 1 — continued. " Quebec, 24th Feb'y., 1855. " Reverend Sir, '* I am instructed by the Commutation Coimnittee appointed at the last " meeting of Synod, to enchjse to you two Powt-rs of Attorney , approved by the " Government and by the Synod, which it is necessary you should sign and for- " ward to Hugh Allan, Esq., Montreal, without delay, — in order to our obtaining " a conunutation of Clergy Reserve money, which will be advantjigeons to the '' Church. All the ministers present at the meeting of Synod in January, agreef the congregation at Ijoehiel in recjuesting either Dr. Mathieson or the Colonial Committee to select a suitable minister for them ? 175 tilioii. ronces lou, it ' for a ■iion of tiroty. of all, eft an cres mo 1(1 ;lave it ifers to iig the conneo- • entire bartis of Church 20 not? petition. lions he !r, so fur A. I hiilicvo that is implied. It was the gcMnl of the congregation that vvaH RECORD. ^54? Iregation 30 congre- Iminister Ibe filk'«l duties, in Scot- janana i request Mathie- !V. John 40 iucerncd le action Jiuebting lister for kept in vitw in all tlie steps tliat were taken. (J. They made the lirst motion, did tliey not, towards obtaining you — it did not t)ri";iiiate with the Colonial Committee at all ? A. 1 (iiinnot tell. Q. Did you not say a sent home a call ? A. )ld \v minutes ago that the congregation of Lochiel ut it was snl)se(j[uent to my coming here; it Wiw in ^1. 1 was told so, Lochiel that I was told so. 10 Q. Have you any d()ui)t it wa.s so? A. 1 have no doubts in the matter; 1 have no reason to doubt honest men who wished to benelit their countrymen in Lochiel. Q. At th>.' time you were inducted over the congregation at Lochiel, is it not a fact that there was reail over to you, and that you gave your assent to a document which is of record, among the records of the Synod of the Presbyterian Church of Canada in crmnection with the Chuich of Scotland, passed by the Synod in 18-14, and which is generally known as the Declaratory Act of Inde- pendence of the said Church ? A. Well, I will answer that ((uestion, if you will explain to me what is 20 your meaning of the Act of Independence. Q. I will not explain to you my meaning of the Act of Independence, but want you to answer that question ? A. I know I did sign such an Act, but it was as regarded my ministerial duties that I would be subject to the direction of the Presbytery of Glengarry and the Synod of Canada, that was all — subject to the direction of the Syi-)d in connection with the Church of Scotland. Q. That Act is to be found amongst the records of the votes and jn'oceed- ingsof the Synod of the Presbyterian Church of Canada in conm-ction with the Church of Scotland, is it not? 30 A. Yes, since I knew you (Mr. Morris, counsel for Respondents) you acted upon that Act as well as I did. Q. Is it not a fact that all ministers at their induction had to give their assent to the said Act, according to the rules of the said Presbyterian Church of Canada in connection with the Church of Scotland? A. Of course; as far as in accordance with the laws and regulations of the Church of Scotland. Q. Now, sir, is i*. not a fact that at the time of your induction you gave your assent, and jis appears by the lecord, unciualiliedly, to that Act of Independence, and that there was no such statement made by you, that you did it in so far as 40 was in accordance with the laws of the Church of Scotland? A. Unqualifiedly, no. Q. Where is your (lualification to be found expressed. A. Whether expressed or not, it was understo(Kl by all the body of clergy- men, that we were a subordinate branch of the Church of Scotland, guided by her laws both in religious duties and in its govi.'rnment. Q. Then this qualification, you stated you made, was simply a mental reser- vation ? A. There was no mental reservation about it. In the Superior Court, No. 46. DepositioD of the Rev. John McDonald, produced by Petitioner 28th June 1879.— continued. 176 Mill llECORD. In the Superior Court. No. 46. Deposition of the 7*cv. Jolin McDonald, produced by I'ctitioncr 28th Jftuc 1879.— continttcJ. Q. Tlien was it written down ami oxprcssed in writing. A. I did not say reservation ; I said it was the iniplicd understunding of the Synod, as a Ixxly, that we wen.' a subordinate branch of tht; Churcli of Scot- land, entirely dependent on Inr peenniary r''8()urco,«<. Q. It was simply an implied iniderstanding, then ? A. I think that is too nuith about one point. Q. I ask you again ; is it not a fact that that Act of Independence was read over to yon at the time of yunr induction, and 3'ou stated then that you assented to it, without stating anything else in the way of qualilication of such an assent? A. I assented to it with this belief, with this conviction, that I was under the control of a Presbytery, sis much in connection with the Church of Scotland MS if I had been in Scotland. Q. Now, is it not a fact that that Declaratory Act of Independence defines the meaning of the words '* in connection with the (church of Scotland," which are to be found at the end of the name of said Church, to wit, the Presbyterian Church of Canada in connection with the Church of Scotland ? A. In reference to that I can say that that Act of Independence in connec- tion with the Church of Scotland never gave satisfaction to the Synod for the last twenty years ; they could never agree upon it, but it wjts allowed to stand on the record. I know one grave Doctor of Divinity wished it repealed. Q. Did you ever move to have it repealed ? A. No ; it did not come to that point. Q. Did anyljody move to have it repealed ? A. Not synodically ; still they were complaining of the Act. Q. You say that the question of union amongst the Presbyterian Churches came up in the Synod about the year 1870? A. 1 am not exactly positive as to the year, but a few years previous to 1875. Q. When it first came up in the Synod, did you op})Ose this union ? or did you take [>art in its discussion ? A. No, I did not; because it did not come up regularly for discussion. Q. The first time it came up regularly for discussion in the Synod, did you oppose it ? A. No ; because I considered it more of a clerical agitation than a regular desire in the country for union. Q. Is it not a fact that the question of union was discussed in the Synod about two years before you made any oppositit)n to it ? A. It was discussed ; but, according to my humble opinion, irregularly dis- they were not in a position to discuss it according to the laws of the 10 .30 cussed ; Church Q. to it? A. Is it not a fact that it was discussed two years before you took objection I cannot answer that ; I cainiot charge my memory as to that, but since ■*" it was mooted it was my humble opinion all along that the Synod, as a body, were acting irregularly in the matter, and therefore, I never could believe that they would bring on a crisis notwithstanding. Q. Do you not approve of the princiiple of union amongst Christian bodies? A. If it is attended with peace, and if it does not injure one to the advan- tage of another. 177 ing of f Scot- US read ^soiited assent? i under j^j cotlimJ defines which (yterian connec- for the itand on (J. Now, yon 8iiy that in 1875 the resnlt was that the Synoi do that remained behind ? A. We continued our sederunt. Q. What did you do first ? A. What any society would do, appointed a president or moderator when '-0 the first one gets sick. Q. Now, is it not a fart, that you first of all proposed iis moderator the Rev. David Watson, of Thorah, immediately after the majority left for the Skating Rink ? Is it not a fact his name was proposed Ixfore Mr. Dobie's? A. No; it is not a fact, as far as I know. Q. Do you swear the name of Rev. Mr. Watson, of Thorah was not pro- posed at all as moderator ? A. Not that I recollect. Q IIow (lid you constitute ? Did you constitute witlx prayer? A. We did not need to constitute ; we were constituted already. ^^0 Q. Did you open with prayer? A. No, we did not; we engaged in devotion Ibi D'.vine guidance in our de- liberations, but not for constituting the Synod. Q. Who held your devotions? A. I cannot tell you who held . A. In so far as that applies to the majority who left, but could not distiu'b continued. the minority in their duty. Q. At the time when, as you say, you elected a moderator from among those who remained behind, was there a ([uorum present of lifteen members of Synod ? A. A quorum ? Why, if yon speak of a quorum, after the first (hiy in the Synod, it is a rare thing; I do not know what was the original number of the 20 (p»onn(;, ))ut that did not alfect us, beciuse we were a continuation of the Synod. Q. N(»w, I want to know wliether there were fifteen meud)er8 of Synod present at the time or not ? A. I spoke of that already ; I thought there were twenty, but I am not positively sure. Q. Do you swear that there were fifteen members of Synod present then ? A, 1 have told already, as far as I know ; I said that 1 thought there would be about twenty; but 1 may be wrong; 1 am not positive. Q. Are you noi aware that^ iiccording to the rules and regulations of the said Synod of the Presbyterian Church of Camida \n connection with the Church of Scotland, it is then; declared that a fiuorum of Synod consists of fifteen mem- •'^ bers, of whom eight nuist be clergymen ? A. 1 said that, as far as 1 can recollect, there were about twenty. Q. I repeat the question ? A. No; I was not aware of that before; I do not think it was ever de- clared in the Synod, that 1 attended, what was the original quorum? Q. Will you look at the minutes of the said Synod, of date June 9th, 1868, contained in Petitioner's E.xhibit " BBB," page 49 of the book entitled on the back '' Minutes of the Church of Scotland, in Canada, 1855 to 1869," under the head of " General Provisions," section 1, sub-section 0, and state whether it is not there provided as follows : " To ccmstitute a quorum of the Gynod there 40 " must be present not fewer than fifteen members, of whom at least eight must " be ministers ?" A. At the first meeting of Synod, at the opening of Synod, I believe that is the rule that had been carried forth, but it has never been put in force at any Kubsecjuent meeting or in the sederuiit ; but we did not open the first meeting of Synod, we only continued the sederunt, therefore we did not need the fifteen 'I :m]' UECOHD. In the Superior Court. No. 46. Deposition of the Rev. John McDoniilil, proiluced by Petitioner 2Htli Juno 1S79.— continued. 180 memluTs. Ah a minority in siuli n crisis thut rule tiocn not iipply iicrortliii}; fo my opinion, nor according to LMjiiity. Q. Wiis that rule, nmnher n'w, ever rcpealod ? A. I ai.i sorry you gave me t*n little lime to study the laws and rules of Synod. I cannot answer that, and I am sorry 1 cannot answer it. I do not doubt what yon say, hut I cannot answer it. It in too far hack — ton years. (J. Yon say, you have had regular meetings of Synod since the loth of Jnne, 1875 ; can yon tell me how many ministers were present at those difl'erent meetings of Synod ? A. I could not tell ; we have a record ; I did not commit the record to id memory, and I cannot tell you that without consulting the record. Q. Do you mean the minutes that have hcen kept? A. I mean tlie record. (^. Where is the r< cord ? A. I do not know. (^. Do vou mean the record that ha.s heen kept hy the Rev. Mr. Burnet, Clerk ? A. Yes. Q. Can you remember the iiiirnes of the other Presbyterian bodies who did join together to make tliis union in 1875? 2o "A. I cannot give the namt s exactly. There were our own lK)dy in the Province, theri' was the Free Chinch party, :ind there was the United Presbyte- rian Church, or a sece.« of Pi'i'sbyterians in Camulu anil a substitute lor th(( Confession of Faith, and that it wits opening a tloor for heterodoxy in the Church; ind also by abiding by the Confession of Faith we are r>'stricted to eiu'tain doctrines and certain rides of procedure. Q. Do you consider that the said Confession of Faith interferes in any way with your full liberty of conmnence, in matters of religion. A. 1 never felt it to interfere with my consilience, in matters of religion, but I felt it my duty tocoJiformto its injunctions in matters of religion, especially 10 in church government. Q. Will yon be kind enough now to look at Petitioner's E.\hibit ** EE," at pages 4 and 5 thereof, where the s:iid biusis of union is to be found, and point out the particular paragraph or clause in the said basis, which you say clashes with the Coutession of Faith ? A. I consider leaving it an open question in the 23rd chapter of the Con- fession of Faith. Q. Look again at the said biusis of union, and show me, if you can, any reference therein to the said 23rd chapter ol' the Confession of Faith, or to leav- ing it an open question ? 20 A. There w;is something about the 23rd chapter of the Confession of Faith ; I do not think that is the e.\act copy that wns .sent to me, but I mind reading it in one of the remits that wns sent to me. Q. Then you cannot find it in the said basis of union now shown to you on pages 4 and 5 ? A. It is my firm impression that it was in one of the renuts that was sent to me accompanying the basis of union. Q. Then, sui)posing it is not to be found in the said basis of union, you must admit that you have been mistaken in your ideas of the biusis in (piestion? A. No; 1 am not mistaken. It is in the Confession of Faith. The basis of ;50 union was substituted for the Confession of Faith, to induce these diflerent sectw to unite, and I consider that a gross violation of our constitution hitherto. Q. Are you aware that it is expressly slatetl in said basis of union that, "The Westminster Confession of Faith shall form the subordinate standard of " this Church " ? A. According to my humble opiidon then and now, a basis of union amongst Presbyterians separated from the Confession of Faith, wius unnecessary, and has been, and is productive of evil. Q. Look at the said E.\hibit " EE" again and answer my question, yes or no? 40 A. I believe it can be embodied in it. But why adopt the basis of union and repudiate the Confession of Faith. Q. Does the said basis of union repudiate the Confession of Faith ? A. I do not say it does; but why substitute it? It is so far ignoriig the Confession of Faith as the Confessi(m of our Church of Scotland, that is, as they substitute it. It is a departur- it is a deviation from the ordinary doctrine and government of the Presbyterian Church of Canada in coiniection with the Church of Scotland. RKCOIID. In the Stt/ifrior ( 'ourt. No. 4(i. DopoHitioa of tlio Rev. Joliii .MuDoriiild, producod by l'i!titioiior 2Sth June 1H71».— continued. •^! UKCOIID. In Ihe Superior Court. No. 40. Doponition nl' tlic Kev. Jdliii MoLVinulJ, prciducoil by Fi'titioner 28lli June lS7!t.— continued. 182 Q. Tlu'ii do 1 undorstfind your ohjccitioii to tlio k\\k\ hisis or to union on the Hiiicl liiis'iH, to !)(' only tliiit tlu' mii'kI hasis is suijstitutLMl tor the Contesnion of Fiiitli and ignoros tlio (Jonfos.sion of Kaitli ? A. It is an ignoring of tin Confession of Faitli so far that its very exis- tence aflocts the Confession of Kiiith. Q. Tliiit is your objection to tht- hasis ? A. That is my hunihU' opinion, I did not say olijcction. You may put in your own words if you like. Q. You also stated in your <'.\ainination-in-chiof, ns one of your reasons for ohjocting to the basis of union, that it was intriKhuxid with a vii-w of reeonoiling 1(» diilereiices between these four I'resbyteiian bo liis, or to that ellt'ct ; ilo you see any harm in endeavoining to rcconeih; ditrerences between Christian bodies? A. I see great harm in eompelling Christian buflies in matters of religion before they agree mnongst thi'inselves, iMasiuueh as they have never been found to eoalesce if so oonipelled. Q. You have stated in your exiimination-in-chief that you considered the miijority of said Synod, who passed the resolution on the I-'hIi of June, 1870, to iidjonin to the Victoria Skating Kink, were acting contrary to their ordination vows in following divisive courses from the Church of Scotland ; what do you mean by that ? 20 A. I meant to say from the Presbyterian (Jhnreh of Canada in connection with the (yhure.h of Scotland, inasmuch as it is a violation of the Act of Assem- bly, 1711, which is read to every licentiate in the Church of Scotland, and to every minister when he is orihiined or inducted to the Church here or in Scot- land. It is the 10th A(!t ol' Assembly in the year 1711. That Act is read to every licentiate — every man that is oniained or is inducted in Scotland and also here. Q. Is it read to every one who is inducted here ? .4. As far a.s I know. Q. What do you mean by " <'us far as I know ?" How far do you know ? 30 A. I understood it to be so. Q. Did you ever hear it so read ? A. I think I did. Q. Are you positive ? A. I have seen it neglected to be read. Q. Do you swear positively that you ovei- heard it read ? A. I know it is an Act thit has been read to every licentiate in Scotland, and I was licensed and ordained in Scotland. It Wius read to me, and in coming to this country I felt that I was then, as well as now, a minister of the Church of Scotland, although in Canada. 40 Q. Was it read to you when you were inducted here in Canada? A. It was. Q. Do you swear positively it was ? A. It was, as far as I recollect. Q. Can you recollect positively ? A. My recollection is for twenty-five years ; as far as I recollect, it was. Q. But are you positive it was, on the oath you have taken ? m tlu' Faith pill in 011H for iicilitig Hi OU Sl'O 8? L'Ugion 1 found le ed tl 870, to illation do you 20 incction Assem- iind to iu Scot- rt'tid to and and :now 30 ;30tland, coining Church 40 ras. 188 A. 1 could refer to the record of Synod. A man's iiKMiiory may he falhic- RECORD. ious, hilt you can tell hy referring to the record. Am far as I recollect, it was read to me. ,/" '*.* Q. Have yon a distinct recollection it was read to yt)n ? (I'mrL A. I Baid as far as I recollect. Q. But I want to know how far you can recollect V Nd. 46. .4. I said it was twenty-five years a<'o, and, as fur as 1 recollect, it was 'I'l'""' '■'"'> , . J ./ -3 > ' 'of the Rev. read to me. .,„l,„ Q. Vaw you recollect of any other instiince where it was read at the imhie- McDomhl, 10 tion of a minister in Canaiia? jiroducod by A. No; 1 caiiiKit name any, hecaiise I was not so situated as to utteml the .','^''',''''1'"^"' inductions; 1 had too lar to go. It was left to the local Preshy teiy, or the iH7!t — ministers of the locality, to do these matters, jind to the Clerk of Preshytery par- coniiniud. ticiilarly, hut they were sul)jected to the review of Synod, and if anything was found irregular it was corrected. Q. You stated, in yotir e.\amination-in-chief, that the otliLT Preshyterian hodies that took part in the said union, and particularly that one in the Lower Provinces in connection with our Church, protested against the Clnirch of Scot- land ; is that correct oi- not ? 20 A. No; I did not suy protested ; I said disai)proved. Q. is it true that the Church of the Maritime Provinces in connection with the Church of Scotland, which took i)art in the said union, ever disa()proved of the Church of Scotland or protej^ted against it? A. That (question put to m •, so far away from the Maritime Provinces, I think is irrelevant. I cannot answer that question. Q. Re- Examined. Will you please look at the basis of union in the said E.xhibit EE." and state whether the latter part of the second clause, being as follows : " It be- " ing definitely understood that nothing contained in the aforesaid confes.sion or 30 '* catechism regarding the power and duty of the civil magistrate, shall be held " to sanction any principles or views inconsistent with full liberty of conscience " in matters of religion," is not said portion that part of the said basis which you have above referred to as, in your mind, conflicting with the entire adherence to the Confession of Faith, particularly chapter 23rd ? (Objected to as illegal, leading and putting the answer into the witness' iiioiith, who has already toM us that he cannot see any snch objection as he referred to in the said basis. 01)jection reserved by consent of parties.) A. Yes; I think that is the part that refers to the 23rd chapter, and I always understood that the 23rd chapter was left an open question in the new or 40 United Church, whether they signed it or not, or whether obligatory or not. Correction. On page eighteen of this deposition, where witness stated that " it was the " implied understanding of the Synod as a body that we were a subordinate " branch of the Church of Scotland, entirely dependent on her pecuniary rcsour- " ces," he desires to add that he did not mean to say "entirely," but " partly, at m \ 11 ? II 184 ■* 4 m 'im RECORD. " times aided by grants from the Church of Scothind for missionary and religious " woric in this Province." And further deponent saith not, and this deposition having been rend to him he declares it to contain the truth. S. A. Abbott, Stenographer. In the Superior Court. No. 46. Deposition of the Rev. John Mcr*onnld, proiiuced by Petitirner 28th Jane 1879.— continued. No. 47. Deposition of Douglas Brymner, produced by Petitioner, filed 2nd July 1879. Schedule No. 62. Douglas Brymner, of the city of Ottawa, in the Province of Ontario, gentle- man, aged fifty-live years, a witness produced on the part of the Petiticmer this second day of July, eighteen hundred and seventy-nine, who. being duly sworn, deposeth and :-iaith ; 1 am not related, allied or of kin to, or in the employ of any 10 of the parties in this cause. 1 am at present in the Civil Service, in the Department of Agriculture, and have been there for upwards of seven years. Q. Before that you were connected with journalism for some time in the city of Montreal ? A. Yes. Q. What connection did you have with journalism ? A. I was a reporter and one of the editors of the Montreal Herald, and I was the editor of the Preisbyterian, which was the recognized organ of the Pres- byteri.in Church of Canada in connection with the Church of Scotland ? 20 Q. How long were you the editor of the Presbyterian ? A. From 1804 down to the end of 1871. Q. Did you hold the editorship with the approval of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland ? A. Yes, and in eighteen hundred and seventy-one I received a vote of thanks from the Synod, which was recorded in the minutes, Q. What did you receive the vote of thanks for ? A. For the manner in which I conducted the Presbytcriaii in the interest.s of the Church ? Q. What Church are you a member of now ? A. Of the Presbvterian Church of Canada in connection with the Church 30 of Scotland. Q. How long have you been a member of said Church ? Since eighteen hundred and fifty-seven. When did you come to this country ? In eighteen hundred and fifty -seven. Before coming to this country, where did you reside, and of what Church were you a member ? A. I resided in Scotland, and I was a member of the Church of Scotland and an elder of a parish. Q. And when you came to Canada, how did it happen that you joined the 40 1 Presbyterian Church of Canada in connection with the Clnn-ch of Scotland ? A. Because I understood, and still believe, it was a branch of the Churc*^ of Scotland, identical vyith the Church of Scotland in this country. A. A. jligious read to lor. I, gentlc- mer this y sworn, ,y of M\y 1^' tare, and le in the Id, and I the Pres- 20 nod of the and ? a vote of interests lie Church 30 ll of what If Scotland Ijoined tho 40 |an.i 1 lie Churc)^ 185 Q. After foniing to CaiKuhi, di>cotland, and this is a matter alleged by the Petitioner in his petition to be provided for and determined by Acts of Parliament and by acts and proceedings of the Synod of said Church, which speak for themselves and are not provable by parole evidence, and moreover have been already admitted by admissions signed by the parties to this case. Ob- jection reserved by the Judge). The members and adherents of the Church of Scotland in Canada made re- presentations that they were entitled as natives of Scotland to receive, with the 40 sister Church of England, the benefits of the proceeds of what was known as the Clergy Reserves. In eighteen hundred and thirty-one, the adherents in Camida of the Chnn-h t)f Scotland formed themselves into a Synod under the name of The Presbyteriiin Cburch of Canada in connection with the Church of Scotland. Such Synod petitioned the King for a portion of the Clergy Reserves, on the ground that they belonged to the Established Church of a portion of the British Empire, and the words of the petition, to be found at page 20 Synotl minutes, marked 8,3, eighteen hundred and thirty-mie, are : " The claims of the Church i 186 RECORD. \i ! 1 ■ 1^ m. '-m' Ml :r In the Superior Court. No. 47. Deposition of Douglas Br3nincr, produced by Petitioner, filed 2nd July 1879. continued. " of Scotliind, and ol" all nativrs of that portion of Your Miijosty's Doniiiiions, " is Ibundod upon the Act ol" Union botwien tin? two Kingdoms which gnanin- '• tees an cqnal connnunication of all rights an^i privileges to the inhahitantH " of both." The provi.«i(tn was made for emigrants cominjr to Canada from Scotland, members of the Chnreh of Scotland in Scotland. The same petition, page 20, says: " Provision having l^een made in that Act, a.s your Petitioneis believe, fnlly '• sulficient for the support of all the Piottstant clergy of the Province, recog- '' ni.seil by the law.s of the United Kingdom, it is not unreasonable that the "members of the Church of Scotland should drsiie to be placed on the same 10 " footing with their fellow-subj(Cts of the Church of Phigland." In the same year a representation was made to the General Assembly of the Church of Scot- land, calling attentiiMi to the necessity for supporting their claims to the Clergy Reserves, beginning at page 15 of the same prt)ceeJings of the year eighteen hundred ami thirty one. In the year eighteen hundred and thirty-three, the Synod memorialized the Gener.il Assembly o'' the Chinvh of Scotland, and at page 54 will be- found these words of a resolutii which was adopted: *' And fur- " ther to crave the General Assembly to use its inlluence to secure to this Synod '* all its legal rights as connected with '" The Church of Scotland." In eighteen hundred and thirty-six, a petition was sent to the King by the 20 Synod of the Presbyterian Church of Canada in connection witii the Church of Scotland, eompliiining of the establishment of reetories by the Church of Eng- land in tills Provinci, tm the ground as stated in the petition that "they con- " ceive that .sud Act is a violation of the Treaty of Union, which entitles the:n *' in a British colony to a comuumication of all rights, privileges and advantages " equally with the subjects of England." This petition will l)e found at pages 115 and 110 of the Synod miiuites of the year eighteen hundred and thirty-six, E.xhibit 3,3. In the same year, and on the same page (HO), is a letter to the General Assembly of the Chureh of Scotland, in the (!our.se of which, reg"et is expr .'s.sed that the Imperial and Colonial Legislatnres hail come to no decision on ;{0 the ut tlic Pi()vim;e the kiio\vledut ten o'clock, on the fifteenth of June. The Synod was constituted in the usual way, certain busi- ness gone through, and then, in the course of Imsinoss, Mr. Cushing, notary, appeared. There ^v as a dead pause in the business while he went up to the moderator, namely, the presiding officer, Rev. Wm. Snodgrass, and presented the notarial protest to the moderator. Shortly after, the presiding officer and a num- ber of others left the St. Paul's Church where the meeting was then being held. Q. Did they leave any behind them ? 40 A. Yes; they left behind them some members of Synod and some strangers. Were the proceedings of that meeting of Synod contiiiued or discon- tinned ? A. chair ? A. Continued. ' The presiding officer, the moderator, having left, who was put in the One of the ex-moderators, Rev. Robert Dobie, Petitioner in this case. 193 wan rc- tion re- live just ction ro- lo i-esbytev- resby ter- pen hun- fTs of the Church of 20 Synod. )f the said pee nth and ;h of June, [e, being a ;io and pro- |;k, on the rtidn busi- g, notary, ]up to the Iscnted the Ind a num- ling held. 40 1 strangers, lor discon- )ut in the his case. Q. After he was put in the ehair, can you state generally wliat was dout! ? A. After \h'. was put in the chair, it wns agreed that he should olfer prnyer for Diviue guidance, sei'ing the critical state of the Church, ami that being done, biisiuess wns proceeded with and brought to a conclusion, and the Synod adjourned. (J. Did the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland meet afterwards? A. Yes, every year since, sometimes twice a year. Q. When wns the last meeting of Synod? A. At Toronto, in the month of June last. 10 Q. I understood you to say sometliing about your attending meetings of Synod ; how many of those meetings of Synod have you attended, of the Pres- byterian Church of Cainida in connection with the Church of ScotlMud, since the fd'teenth of June, eighteen hundred and seventy-five? or, to put it in a different way, how many have you not attended since then ? A. 1 have missed one since then. Q. Ari' you in a position to swear that the organization of the Synod of the Presbyterian Clau-ch of Canada in connection with the Church of Scotland, has been regularly kept up siiu.-e the fifteenth of June, eighteen hundred and seventy-five, notwithstanding the secession that then took place ? 20 A. I can positively swear it. Q. Has the Presbyterian Church of Canada in connection with the Church of Scotland, kept up its general Church organizations in Presbyteries and Con- gregations since that dav? A. Yes. Q. At the present time, about how many ministers are tliere in connection with the Presbyterian Church of Canada in connection with the Church of Soot- land, and laboring with it? A. We have ten ministers, three missionaries and three retired ministers. Q. How many congregations are there in connection with the said Church 30 to which the ministrations of religion are supjjlied ? A. That is a little more difficult to answer, on account of the difficulty of obtaining statistics, but, to the best of my knowledge and belief, there are some- where between thirty-six and forty. Q. Would you state whether the adherents, members of the Presbyterian Church of Canada in connection with the Church of Scotland, are confined to any one place like the city of Montreal, or as to whether they arc generally scat- tered throughout the Provinces ? A. They are scattered throughout the two Provinces of Ontario and Que- bec — throughout the whole of the old Province of Canada. I may add that I 40 have a perfect knowledge of that. Q. 1 believe that you have taken a very active interest in the affairs of the Presbyterian Church of Canada in connection with the Church of Scotland, since you came to this country ? A. I have. Q. Has your interest to any extent flagged since that secession in eighteen hundred and seventy-five ? A. It has certainly not in the Presbyterian Church of Cana.inaihi is differing )f Canada Id. 195 Q. What an- thu distinct diircreiiwH in tlio ohligntionH taken rh to thu Con- HKCORD. fcHHion of Fiiitli '! (Ohji'cted to, as iUcgal aJid irroluviuit. Objection reserved by the parties.) A. in the fonnida or ol)li^ regard- " ing the power and duty of the civil nnigistrate shall be held to sanction any 2(1 " princi[)les or views inconsistent with full lib<.-rty of conscience in matters of '• religion." At page 0, of the; same Exhibit, under the head of '• Government Grants to Denominatio'ial C\)lleges," are found these words : " In the united " Churcii the fullest forbeai'ance shall be allowed as to any tiiHereuces of opinion "which may exist respecting the (piestion of State grants to educialional estab- " lishments of ;i denominational character," this forbearance having reference to the peculiar doctrines held by the Churcli of Scotland and by her branch in Canada, Q. I understand, then, that ministers joining the Presbyterian Church in Canada are not obliged to give their adhesion to the Confession of Faith in its ;{0 entirety in the same manner as ministers joining the Clnn'ch of Scx>tland in Scot- land, or the Presbyterian Church of Canada in connection with the Church of Scotland ? (Objected to, as illegal and not in issue. 01)jection reserved by parties.) A. No, by the basis ol union that is a matter that is optional. Q. Do you know when the ministers are paid their annual stipends out of the fund of the Board, Respondents ? A. The checks, as ' have always understood, are issued on the first of July and on the first of Jaiuiary, being every six months. Q. Are you aware that various i)rotests were >. de on behalf of certain 40 members i)f the Presbyterian Church of Canada in conn>,;:tiou with the Church of Scotland, against the union which was in (question ? A. 1 am. Q. Could yon point out from the minutes of various meetings of Synod any places where the said [)rt)tests are recorded ? A. In eighteen hundred and seventy-threc', according to Synod minutes for that year, at page 35, is a dissent with reasons given in, by Mr. Mitchell, a mem- ber of that Synod, and adhered to by Messrs. David Watson, Lang, McPherson, llH! ;iii In the Hiwerior Court. No. 47. Dopcsitiou 1' iilod 2nd July 1H79. contii'ued. 196 RKCOKD. Diivid»on, McGillivray, Wright nnd [iiinHkil. In ciglitocii liiiiidrcil iiml .soviiity- fbiir, at Ottawa, Synod iniimtoH pages 83 iiiid Ml, is a long protist on tin; siuiio Hiibji'ct. At page 9 Synod niinutcs for Novendjcr, ciglitcfn Inindrcd and Hoventy- four, I find a prott'st Nigain.st the S>no(l discussing the ([ucstion of nnion iit a uiueting held in violation of the Constitution. At |)age li of Synod nnnntes of November, in the Haine year, appi aiH a protest signed by the Petitioner and others, declaring that no majority conld takt; from them the rights which they poasessed as mcinherH and adherents of the I'resliyteriiin Chnrch of (.'anadn in iroilnced by eonnection with the Chnrch of Scotland, said protest being in connection with 'etitioncr, the then proposed nnion. At page IG of the satno Synod niinntes, is a protest by lo the Rev. James Wilson against the proijoseij nnion. In the Synod minutes for eighteen hundred and seventy. live, page lit), is a di.ssent against certain resolu- tions respecting said union. At page 3(J is another dissent against the proposed union. At page 35 of the same Synod minutes, is a protest signed by Petitioner and others against the said resolutions on union. There was also a notarial pro- test served on the fifteenth of June, eigiiteen hundred and seventy-five, previous to the seceders leaving St. Paul's Church, in which proceedings were being con- ducted. Q. You are a native of that part of Great Britain and Ireland called Scotland ? 20 A. Yes. Q. You were admitted a member of the Church of Scotland in Scotland? A. I became a member by baptism. Q. Were you an elder of a Church in Scotland ? A. I was. Q. What year did you come to the Province of Quebec. A. In eighteen hundred and fifty-seven. Q. Did you become an elder in Quebec ? A. Yes, of the congregation in Melbourne, Presbytery of Quebec ? Q. On what ground were you admitted to an eldership in the Church? 80 A, 1 was received on my certificate of eldership and inducted without any further procee lings. The two Churches were in ministerial and Church commu- nion, that is to say, the Presbyterian Church of Canada in connection with the Church of Scotland, and the Church of Scot!' I think I should explain that the Church of Scotland was what is k' .. a close communion Church at that time, that is, that no minister wiv .i into the pulpit except a minis- ter of the Church of Scotland, or a i ./icd minister in connection with a brancii of that Church; and no commun-.int was admitted to the Lord's table unless he, or she, was a member of the Church of Scotland, or recognized as a member of a branch of the Church of Scotland. 40 Q. Has this communion between these two Churches always existed ? A. Always existed. That communion was set out in the Synod minutes of eighteer. hundred and thirty-three, page 43, in which the Church of Scotland declared that members of congregations in Canada under the charge of ministers of tlie Presbyterian Church of Canada in connection with the Church of Scot- land, should be received as members in Scotland of the Ciunch of Scotland on producing certificates from the session under wliose jurisdiction they were. mm 197 vt«nty- ". wuno ivoiity- )ii i»t a UlOH <»f h they liulii in n with )t('st l)y i<» ite.s lor I reHoUi- 'titiont-r •iul pro- previous iug coii- d calletl thvnd ? 2(1 lich ? 3(1 |ioiit any coinrau- ■ith the [ain that Church a uiinis- with ii il's table ized as a 40 In u tea of Scotland |iinistert< )t' Scot- land oil in the Superior Court, Q. VVf-rc! any ovcrtiu'cs inado liy the l^rcshyteriun Cluirch of Canada in UECOIID. conncclion with the Chuich of Scuthuid towaids the Piusbyturian Church of Caiutda, or by the Presbyterian Church of Canada towards the Presbyterian Church of Canada in conntTtion with the Church of Scotland subsequent to the secession of t-ij^htct-n hundred and forty-four, with a view to repairing the breach that had occmred, and if so, what was the result of such overtures, and what No. 47. were th.i reasons rcspectivcdy alleged for their non-success ? Doposition (Obje(!ted to as illegal and entirely irrelevant to the issues raised in this Urymner case. Objection reserved by purties.) produced by 10 A. In the Synod minutes of Septend)er, eighteen hundred and forty-four, IV'titionor, marked " BHli," i)itg(; 30, is ii uMnutc; of a ri'solution of the said Synod to appoint jK'' '!°*^„ a committee to confer with those who had seceded from the said Synod in July, ^^ntinued. eighteen hundred and forty-four, with a view to the restoration of union between them. In eighteen hundred and forty-five, as appears by Synod minutes of that date, page 14, is the report of the .ommittee named as just menti(med, in which it is stated that the sentiments nni piivocally expressed by the seccders in regard to the Church of Scotland were such that the committee concluded to hold them as « bar to ail negotiations. In the year eighteen hundred and forty-four the Synod ' the Presbyterian Church of Canada appointed a committee to meet with a 20 connnitlee of the Synoil of the Presbyterian Church of Canaiia in coimection with the Church of Scotland with a view of negotiating about re-union with the latter body as appears from the *' Digest of Synod minutes of tlie Presb3'terian Church of Canada," page 275. In eighteen hundred and forty-live the committee of the Presbyterian Church of Canada reported that the negotiations had been unsuc- cessful, the committee from the Presbyterian Church of Canada in connection with the Church of Scotland having been disposed to lay great stress on the act passed by their Synod, declaring the spiiitual independence of their Church, but entirely indisposed to entertain any proposal for dissolving the connection be- tween their Synod and the Scottish Establishment, or altering the designation of 30 the Synod, as will be seen by reference to page 277 of said Digest, filed as Peti- tioner's Exhibit '' LL." Q. After the secession in eighteen hundred and forty-four was anything done in the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland by way of calling over the names of those who had seceded ? (Objected to as illegal and entirely irrelevant to the issues. Objection re- served by the parties). A. In Synod minutes for September, eighteen hundred and forty-four, at pages 20 and 21, will be found a statement of the steps taken to declare those who had seceded in the previous July no longer ministers of the Presbyterian 40 Church of Canada in connection with the Church of Scotland or of the Church of Scotland in Canada. Q. Will you point the page and the minutes of Synod, where you find the report to which you have already referred, of the law officers of the Crown, in which they stated, as you have said, that the allowances to those persons who had seceded could not be continuad on account of the new position in which they stood. (Objected to as illegal and entirely irrelevant to the issues. Objection re- served by the parties. ■ii «:.:,?^ m ISSU.r It ill .V :J« RECORD. 7n ^/tc Superior Court. No. 47. Deposition of Douglas Uryiancr, produced by Petitioner, filed 2iid July 1879. — contimied. 198 A. At page 411 of the Digest, E.\liibit '' LL," is a inoinori:il addrcss'-fl to the Governor-General praying for the continiiunce of the allowances from the Clergy Reserves. The memorial was from those who hiiil secedi'd from the Presbyte- lian Church of Cnnfula in connection with the Church of Sootlaiul, in July, eighteen hundritl ami forty-four, and who had been declared no longer ministers of that Church, or ol' the Chunh of Scotl md in Cunadn, but who had formed themselves into a Synod imder the name of the Presl)yteriau Church of Canada, asking that Miey might be eontinu» raised on the merits of this ease. Objection reserved by the parties). A. I am the same individual. Q. In speaking of your knowledge of the law relating to the Church of Scot- land >\\\^\ to the Presbyterian Church of Canada in connectiim with the Church of Scotland and the records thereof, have you studied the stan()vern- ?,led in niiK' ? lised on of Scot- Cliuvch works of 20 eii^htcen Ca"iula ,1 Church ■rred to? Idid tbey 30 x^prosent of July, 1 decitle It liurch, ov tempting liost^ who kr, would Imada in Mvilcges 40 JL'ighteon |1 were a of the llers not iprotcnil Inada in In the Superior Court. No. 47. ^1. Thuir whole claims mo found set out in their orgiinizatioii, and a protest llECOUD. lodgeil previous to leaving, which will be found at pages 2, 3, 4, 5 and G of Ex- hibit " LL," filed in tins ca.se. Q. Will you kindly answer my question, yes or no ? A. 1 c:ni answer no furilier than 1 have dcme. Q. Before the s;iid seoeders, of whom you have spoken, left, in eighteen hunth-ed and forty-four, the said Presbyterian Church oT Canada in connection l>,^'P"s'""" •1,1 /ti 1 /• t. 1 1 ii • • • • • •■ !• , 1 ot UouLclas witli the Church or Scotland, were they in a nunority or in a majority oi tlie 3,y,„ner said Synod ? produced by 10 A. Being defeated on a motion to never connection with the Church of '^etitionur, Scotland tliey were in a minority. ^' i ^"" Q. Consequently it a|)pears that there is no analogy betw 'en the case of the ^continued, seceders who went out in eighteen hundred ami forty-four from ^he Presbyterian Church of Canada in eonnection with the Church of Scotland and the seceders from the said Church represented by the Reveremi Robert Dobie, the Rev. Gavin Lang and others, who went out from the said Church in the year eighteen hun- dred and seventy-five? A. In thi> first place, I do not acknowldlge that the Rev. Rob M't Dobie and others were seceders; they remained in connection with the Clmrcli of Scotlaiul. •jO The other part of the statement i.^ a constitutional (question which must be solved by the Judges. Q. The Rev. Robert Dobie and the others who dissented from the resolu- tion of the Synod of the Presbyterian Church of Canada in connection with the Chur(!h of Scotland, passed in the year eighteen hundred and seventy-five, rela- tive to the union in (piestion in this caust;, were in a mint)rity of tlie said Synod of the Piesbyt'rian Church of Canada in connection with the Church of Scotland, were they not ? .4. They were a minority in the Synod. Q. Were they in a minority in the Church ? 30 A. The Church is composed of the whole body of the people, the Synod being a mere committee for the managemeui of the ecclesiastical and spiritual affairs of that body. Q. Were they not in a minority in the whole Church, on the oaih you have taken ? A. From thi; very best information it is possible to get, the question is not j yet determined. Q. Those seceders, in eighteen hundred and forty-four, after leaving the Presbyterian Church of Canada in connection with the Church of Scotland, organ- ized a Synoil of their own, did they not ? 40 A. They did. Q. And thev called themselves the Presbyterian Church of Canada? A. Yes. Q. Then, as a matter of fact, seeing that after leaving the Presbyterian Church of Canada in coiniection with the Church of Scotland, they set up a Synod of their own am) called themselves the Presbyterian Chinch of Canada ; is it not true that tlu^y did not pretend to be the Presbyterian Church of Canada in con- nection with the Church of Scotland ? 200 RKCORD. Jn the Superior Court. No. 47. Dcpo.s!tion of Douglas Brjmner, produced by Petitioner, filed 2nd July 1879. continued. A. PiM'fectly truo. TIk^j set U|) a lu)stil<', soparate and iiidopendont orfran- izatiuii, and I'liitlior, tlicy cliaiigcMl the obligation to Ix; t.iken by niini.stcr.s of the Church of Scotland and of the Presbyterian Clmrch of (^anada in connection with the Church of Scotland at their ordination and imluction. Q. What do you mean by the term secession which you have used in your examination-in-cliief on several occasions, with reference to anybody seceding from a church ? A. Those who secede from a Church are those who sever their connection with it and change its terms of connnunion — change its doctrines. Q. You say in your examiiiation-in-chicf that you have been in the habit 10 of attending meetings of Synods of the Presbyterian (Jhurch of Canaf Synod, to take part in the proceedings of Synod and to move resolutions ? A. I will show you the practise. In eighteen hundred and fifty-nix, Rev. I 201 out ovfriin- xTS of thu jction with 13(1 in your y seceJing connection 1 the liabit 10 lada in con- g since you I in connec- in St. Gab- eventy-two. I tifty-eight, Aid seventy- St. Gabriel iiendation to 20 ih since you itative capa- filed in this ^ marked Zl, iie pretended 31 [preyeut anv Lh of Can -da Hi occupying liberate with |ve or second und<^r such Inada in con- and 1 thus you were 40 Ihi-ing a reg- Id to move ty Wuj. Snodgrass, tliuii a minister in Prince Edward Island, being present at the RECORD. Synod of the Presbyterian Church of Canada in connection with the Church of - — - •^ - - • ... .__... . In the Siwerior Court. No. 47. Deposition of Doujilas Scotland, was a.sked to sit and deliberate with the court, and I find him second- ing a resolution in regard to the commutation funds. Q. Is that all you have got to show on that point? A. I can give you twenty instances. Q. Well, give them to me? A. At tills niomt-nt, not baving looked into the question, it would take me Brymner" longer than would be convenient, but 1 will give them to-morrow morning. produced by 10 Q. Then your statement, made just now, that you could give me twenty ^'•^'^'^'o"'^'"' instanees of isuch practise was rather riush and without having verified your state- j j "jg-g ment, was it not ? -^ntinu^. A. When I said so I spoke from a knowledge of the practise of the Church and as having been present at the Synods. Q. And yet you cannot verify your statement, although you made it in such a positive way ? A. To-morrow morning I will supply all the information. Q. Is it not true that no (me who is not a regular member of Synod accord- ing to the laws and practises of the Pie.sbyterian Cburch of Canada in connection 20 with the Chureli of Scotland, that is to say, an elder representing a Kirk-session, duly appointed, has any right to take part in the proceedings of Synod, move resolutions and be appointed on committees unless it be that he is a corresponding member of Synod, such as Dr. Siiodgrass, whom you have referred to, was.? A. The practise, so far as I know it, is that those who are present, whether they belong to the Church or not, ministers and elders not only of the Presbyter- ian Church of Canada in connection with the Church of Scotland, but of other Churches, have been repeatedly asked to sit and deliberate with the courts. Q. Please answer my question. Beyond sitting and deliberating, have the persons referred to in the last preceding question, that is to say, those who are 30 not regularly appointed members of Kirk-sessions or who are not corresponding members, any right to move resolutions or be appointed on committees of Synod ? A. '^hat question has already been covered by what I have said, that to- morrow morning I will give all the information on that subject. Q. Then just now you cannot answer that question ? A. I cannot from the books answer it at this moment. Q. Are such members, who are merely asked txi sit and deliberate, entered upon the rolls of Synod as forming part of the Synod ? A. No ; but their names are entereii as having been asked to sit and deli- berate simply. 40 Q. Since June, eighteen hundred and seventy-five, the date of the union, what Church have you attended? ^1. 1 hold a pew in St. Andrew's Church, Ottawa ; I have attended that church and other churches. Q. What other churches? A. 1 have lieen in the haliit of attending, at times, the sister Church of England, having been driven out of my own church, by the church being taken 3!X. Rev. I possession of by tlie Presbyterian Church in Canada. 1 'j; RECORD. In the Superior Court. No. 47. Deposition of Douglas Brymner, produced by Petitioner, filed 2ud July 1879. — continued. Ottawa ? A. A. A. 202 Q. What church do 3'on nttcnd as a rcgiihir thinjjf from Sunday to Sunday ? A. 1 am ol'tcner in the sister Ciiurch ol' Enghind than any otiicr. Do you hold a pew in any other church but St. Andrew's C'iurch, No. Who is the minister of that church ? Rev. Daniel Gordon. In connection with what Church is St. Andrew's Church, Ottawa ? St. Andrew's Clr.ircli, Ottawa, is in connection with the Presbyterian Church in Canada at this moment. 1 hold my pew, claiming that that church lo belongs to the Presbyterian Church of Canada in connection with the Church of Scotland. But 1 took out my certificate as soon as the union took place, so that I could not be enrolled in the union roll as a member of the new Church. Q. Do you worship there ? A. At times. Q. Does your family attend there ? A. Occasionally. Q. Generally ? A. No. Q. Do you contribute to ♦he funds of that Church ? 20 A. Nothing but my pew-mit. Q. Then you do not repre&ont any congregation or Kirk-session in connec- tion with what you cidl the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, that is to say, the Church that the Peti- tioner in this cau.se claims to represent ? A. I have already, I think, stated so that I do not. Q. You have already stated that you belong to the Presbyterian Church of Canada in connection with the Church of Scotland ; if you belong to no congre- gation under that name or no Kirk-session under that name, how do you come to belong to such a Church ? 'm A. That is one of the grievances we complain of, that our church has been taken away I'rom u.« and that we have no congregation in Ottawa to which we can go. We would have to be compelled to go to a Church to which we did not belong. Q. Is it not true that you appear in the Synod minutes, which are filed by the Rev. Gavin Lang, marked Zl, as being appointed on certain committees of said Synod ? A. Yes. Q. Do you pretend tliat, not being a member of said Synod and being only asked to sit and deliberate, you had any right, according to the laws of the Pres- 40 byterian Church of Canada in connection with the Church of Scotland, to be appointed on committees, such as a member of the committee on bills and over- tures ? A. I pretend that the Synod, being a committee of the Church, having the management of the business of the Church at a crisis when so many had left her comnnmion, that irregularities are not only permitted, but provided for according to the Confession of Faith. rch, erian [lurch 10 ch of ) that 20 connec- xe Peti- urch of congre- bome to las been Inch wo lid not Ifiled by Ittees of lig only in Pres- 40 to be Id over- ling the left her wording 203 (J. Then you admit lli.it your ;ii)|)ointiiieiit as a n-eniber of Buch committee KEUOilD. was an iiregulurity V A. 1 do not admit it was an irregularity; what I contend is, even if irregu- larities were committed, those irregularities would not aftect the rights of the members and adliei'ents of the Presbyterian Church of Canada in connection with the Church of Scotland, and thereby cause them to forfeit their civil rights. In the Superior Court. No. 47. Q. Then, can you show any law of the Church to authorize your appoint- ^/j\°^''iP° ment as a member of a committee on bills and overtures when you were merely Urymner" asked to sit and deliberate ? produced by 10 A. I am not aware that there is any law on the subject. In extraordinary Petitioner, circumstances it has been provideii that church courts may depart from the ordin- ^'*','^ ^°'^. ary rules when exigencies demand it. —continued. Q. In what way may they depart from ordinary rules, according to their own free will ? A. No, according to the general laws of the Church. Q. Show me those laws ? A. The form of church government, forming part of tlie Confession of Faith, provides, at page 105 of the form of church government, an Act of the General Assembly of the Church of Scotland, passed in sixteen hundred and forty-five, 20 and which still remains in force, that even in so serious a matter as the ordainiTig of ministern, ordinary rules may be departed from in extraordinary circumstancees, lis appears from the form of church government bound up with the Confession of Faith, and which 1 now produce and file marked Z4. Q. This Ibrm of Church government, you have spoken of, is the form of Church government adopted by the Assembly of the Church of Scotland, is it not? A. Yes. Q. Is that all you have to show as law on the subject ? A. That is all I have to produce. Q. You have stated in your examination-in-chief that on the fifteenth of HO June, eighteen hundred and seventy-five, after Mr. Cushing had delivered a notarial protest to the moderator of the Synod then meeting in St. Paul's Church, Montreal, a number of members of Synod lelt the Church, and left behind them some mem- bers and some strangers ; will you be kind enough to state how many ministers of the said Synod of the Presbyterian Church of Canada in connection with the Church of Scotland then assembled remained behind in St. Paul's Church and did not go with the majority toconsummato the union which is in question in this cause ? A. I could only state from memory, and I would not like to charge my memory with it at this date ; and there is no record of those who remained. 40 Q. State it from memory ? A. I cannot tell exactly ; I think there must have been seven ministers and either two or three elders ; I would not be sure which. Q. Will you give the names of the said ministers ? A. 1 cannot, really ; but I could give some of them — those who signed this document contained at i)ages 35 and 36 of Synod minutes of eighteen hund- red and seventy-five — namely Robert Dobie, Wm. Simpson, Robert Burnet, m r.} ii fWw HE CORD. In the Superior Court, No. 47. Depo.sition of Dougl'is Brynmer, produced by Petitioner, filed 2iid July 1H79. — continual. 204 David WatHon, Win. Mi'Millan, TlioiiiaH McPIktsou, Roderick McCriinmuu, Jolm Davidson and John McDonald. TIu'ho at least were present. Q. How many of these were ministers? A. Seven. Q. Which of these were elders? A. Wm, McMillan and Roderick McCrimmon. Q. Do you know of any others, members of Synod, who remiiined bi'hind ? A. I do not, reallv. Q. Now, to the best of your knowledge, is it not trne that no other members of Synod remained behind on the tiftctuth of June in St. Paul's Church except 10 those whom you have just mentioned? A. Well, to the best of my belief, it is, but I would not be positive. Q. Do you not know, as a matter of fact, that the Rev. J. S. Mullan also remained behind and afterwards left ? A. The Rev. J. S. Mullan went away with the other seceders out of the Church. After the moderator had taken the chair the Rev. J. S. Mullan re- turned and made some objection as to the lesalily of a protest lodged the night be- fore, on the ground that a certain number of (juarter-dollars h,ul not been left when the protest was entered. Having made this objection, which was one ob- jection he did make, he then went off again. 20 Q. Do you know where he went to ? A. From his own statement he went to the Skating Rink ; I personally have no knowledge of it. Q. Then, to the best of your knowledge and belief, is it not true that there did not remain behind in the said St. Paul's Church, after the majority of the Synod had rei)aired to the Victoria Skiiting Rink, fifteen members of Synod ? A. To the best of my knowledge that number did not remain ? Q. What then did tho.se who remained behind proceed to do ? A. Having been left by a large number of the members of Synod, those who remained behind proceeded in accordance with the laws of the Church to 30 appoint a moderator to continue the business. In the critical state of the Church the moderator engnged in prayer for the Divine guidance. The moderator was the Rev. Robert Dobie, Petitionoi" in this cause, who had previously been a moderator of tlie Presbyterian (Jhurch of Canada in connection witli the Church of Seotlaml. He having done so, the members of Synod then proceeded to continue the business which had been begun in the morning. They continued until they closed the business and adjourned. Q. You say that the fir.-jt proceeding was to appoint the Rev. Robert Dobie, moderator ; is it not true that the Hrst proposal was to appoint the Rev. David Watson, of Thorah, moderator. 40 A. There was no proposal. When the others had left there was a minute or two of confusion, and there was some talk of appointing the Rev. David Watson, but there was no motion of any kind except that to appoint the Rev. Robert Dobie, moderator, Q. You are positive of that ? A. Positive of that. il m 205 Joliu •hind ? embers except 10 an also L of the illan re- light be- oen left one ob- 20 jrsonally [lat there y of the nod ? )d, those luirch to 30 i Church oderator sly been .vi'tli the rocceded mtiiuied i-t Dol)io, k David 40 li minute David Ihe Rev. In the Superior Court. No. 47. Deposition , of Uouj'las Q. You are positive that Rev. Mr. Watson did not refuse the appointment RECORD, of moderator ? A. I am positive the Rev. David Watson, wlien he was spoken about, pointed out that the proper man was not himsidf; but tliero was no motion to appoint the Rev. David Watson. Q. Did they ai)point a clerk? A. They appointed a c\e\k pro tempore, the Rev. Robert Burnet. Q. Previous, is it not true that the Synod of the Presbyteriiui Church of gr^^neJ."' Canada in connection with the Church of Scotlaml Imd pa.ssed a resolution re- produced by 10 solving to adjourn the said meeting of Synod to the Victoria Skating Rink, Petitioner, Montreal ? fj \f^^ A. They had, and under two protests, (me from individual members of _!l^„^j„ygj Synod and one from the notary. Q. ^Nevertheless, is it not true that the said Synod of the Presbyterian Church of Canada in connection with the Church of Scotland did immediately, previous to the appointment of the Rev. Robert Dobie, as you have heretofore stated, under authority of said refcolution, adjourn the said Synod to the said Victoria Hall or Skating Rink ? A. A number of members of the Presbyterian Church of Canada in con- ;.'0 nection with the Church of Scotland left St. Paul's. Personally I do not know where they went. Tliey went, I understand, with the intention of going to the Skating Rink. Q. Were you not present during the whole day at the meeting of the said Synod of the Presbyterian Church of Canada in connection with the Church of Scotland on the iifteenth of June, eighteen hundred and seventy-five, in St. Paul's Church ? A. I believe so. Q. Did you not then and theri' hear a resolution moved, seconded and carried, to the eflect that the said Synod should adjourn to the Victoria Hall or ;iO Skating Rink, Montreal ? (01)jected to as being a matter of record, which will be shown by the records filed, if a fact. Objection reserved by the parties). A. I have no remembrance of it, and it is not on the record. Q. Is it not true that the resolution of the said Synod was moved, seconded and carried on the fourtci'nth of June, to wit, the previous day, to the effect, as found on l)age 35, of the .-'.lid minutes of Synod filed in this ciuise as Petitioner's E.xhibit "' BBIi," that the said Synod did resolve to repair on the adjournment of the court, to wit, the said Synod, on the next morning, namely, the fifteenth of June, to the said Victoria Hall, commonly known as the Victoria Skating Rink, 40 for the purposes mentioned in said resolution ? A. I believe so, aud thereupon a dissent was entered. Q. Is it not true that it appears in the minutes of said Synod, to be found in the said Exhibit " BBB," on page 40 of the minutes of eighteen hundred and seventy-five, th;\t " the Synod adjourn to meet in the Victoria Hall within this " city, at ten minutes before eleven o'clock on the forenoon of this day, for the " purpose of uniting with the other Churches named in the minute adopted at '* yesterday's diet, to form the Presbyterian Church in Canada." ,. , J'. , i i > il^B RKCORD. In the Superior Court. No. 47. Deposition of Douglas Brynincr, produced by Petitioner, filed 2nd July 1P.79. continued. 206 A. It i.s true that a narrativo is givon hero 1' the clerk of wlmt took [ilaco, according to their view, but the Synod did not adjourn ; a number of members of the Synod adjourned. Q. Nevertheless, can you deny that the said resolution of Synod to adjourn was jiiissed and carried by a large majority ? A. 1 can only state what I have said before — it was curried under protest, and also in the face of a second or notarial protest, which is not recordeil in the minutes of Synod. That is the notarial protest I have already spoken of, served by Mr. Gushing. Q. Can you deny that it was with a view of following up the said resolu- lo tion to adjourn to the Skating Rink that the majority of members of said Synod went to the Victoria Skating Rink on the fifteenth of June, eighteen hundred and seventy-five ? (Objected to, this being a question upon which the witness under examina- tion cannot supply the best testimony, the object of those so leaving the St. Paul's Church being capable of being best proved by themselves. Objection reserved by parties.) A. Personally, I do not know. I decline to say anything about it. Q. You simply attended the meeting of Synod at that time as a spectator ? A. As a member of the Pr(>sbyterian Church of Canada in connection with 20 the Church of Scotland, and one deeply interested in its preservation. Q. You were not a member of Synod, I suppose ? A. I was not. Q. What congregation did you belong to then, on the fifteenth of June, eighteen hundred and seventy-five? A. Of St. Andrew's Church, Ottawa, the congregation I have already spoken of. Q. After Mr. Dobie was appointed by those who remained behind in St. Paul's Church, to the chair, did those present transact any business at all except to adjourn ? 30 A. The minutes contain what was done; I know there was business done, but I nmst look at the minutes to see what it was. The minutes. Petitioner's Exhibit Zl, show what w.as subsequently done. Q. You mean the minutes marked Zl, filed by the Rev. Gavin Lang in this cause ? A. Yes. Q. Is it not a fact that those minutes purport to give the minutes of the Acts and Proceedings of the Presbyterian Church of Canada in connection with the Church of Scotland during the whole of the fifteenth day of June, eighteen hundred and seventy-five, even before the time when the majority of the mem- 40 bers of Synod adjourned to the said Victoria Hall, and during the time when the Rev. J. H. Mackerras was clerk of the said Synod ? A. All the papers, records and everything that was in the possession of the clerk and of the majority who seceded, were carried away, so that the first part of the proceedings had simply to be a narrative of what took place. The minutes themselves only purport as a matter of record to give the general scope of the business done previous to the secession and what was done afterwards. 207 laco, rs of ourn otest, u the erved eaolu- 10 :^ynod uulred fttnina- PauVs served ctator ? ,n with 20 )f June, already (1 in St. except 30 ►S8 done, litioner's iLang in of the Ion with jBighteen [e mem- 40 [hen the m of the [rst part minutes of the Q. Who was the clerk of the waid Synod which met o»i the fifteenth of June, eighteen lumdred and seventy-five, in the morning ? A. The Reverend John Mackerras. Q. Then had the Reverend Robert Burnet any authority to record the minutes of the said Synod, and sign his name as clerk of the proceedings of said Synod on June fifteenth, eighteen hundred and seventy-five ? A. He was uuthorized by the Synod of the Presbyterian Church of Canada in connection with the Churcli of Scotland, which continued the session, to enter on the record the events which preceded that secession. 10 Q. You mean that he was authorized by the ten men who remained behind to give a narrative of the proceedings of the said Synod ? A. I mean that he was authorized by the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland to do so. Q. You mean after the majority had left to go to the Victoria Hall ? A. Yes. Q. Then, as a matter of fact, there were only nine raen who authorized him so to do ? A. I refer to my previous answer. Q. Is it within the power of a church court, to wit, a Synod of the Pres- 20 byterian Church of Canada in connection with the Church of Scotland, to adjourn from one place where it is holding its session to another ? A. I am not aware that it is. Q. Are you aware that it is not ? A. I am not. I may mention, however, as a matter of fact, that the Synod of the Presbyterian Church of Canada in coiniection with the Church of Scotland, did adjourn in June, eighteen hundred and seventy-four to meet in Toronto in Novemljer of the same year. Q. You have stated in your examination-in-chief that there are at present ten ministers, three ini.ssionaries, and three retired ministers connected with the 30 Church which you say you belong to and which Mr, Dobie the Petitioner claims he belongs to, and which you call the Presbyterian Church of Canada in connec- tion with the Church of Scotland, will you be kind enough to give me the names of the said ministers and missionaries ? A. Rev. John Davidson, Rev. John McDonald, Rev. David Watson, Rev. Robert Dobie, Rev. Peter Watson, Rev. Neil Brodie, Rev. John Moffatt, Rev. Gavin Lang, Rev. A. J. Campbell, Rev. Robert Burnet, Rev. William Simpson, Rev. Thomas McPherson, and Rev. Hugh Nevin. The three last ones are retired ministers. The missionaries are : Rev. Mr, Hutchinson, Rev. H. D. Steele, Rev, A. 40 Shand and Rev. Mr. Fuller. Q. The Rev. Mr. Moffatt, whom you have mentioned, was he one of the ministers of the Presbyterian Church of Cmada in connection with the Church of Scotland, in Jmie, eighteen hundred and seventy-five, at the time of the said union ? A. I really could not tell you, Q. Was the Rev. A. J. Campbell a minister of the Presbyterian Church of Canada in connection with the Church of Scotland, on the fifteenth of June, eighteen hundred and seventy-five ? RECOUD. In the Superior Court. No. 47. Deposition of Duugliuj Brymner, produced by Petitioner, filed 2nd July 1879. — continueJ, p-^IJ''i- RECORD. In the Sfitifrior Court. No. 47. Deposition of Douglas Brymncr, produced by Petitioner, tiled 2nd July 1879. — continued. 208 A. No, I think not. Q. lie has been brought in wince, then ? A. He was admitted by ordination since. Q. The Mr. Shtvnd whom you have mentionod as a missionary, was a mis- sionary of th<> Presbyterian Church of Canadii in connection with the Church of Scotland, on the fifteenth of June, eighteen hundred and seventy-live? A. 1 believe not. Q. Mr. llutehi.son and Mr. Fuller, were they missionaries of the Presby- terian Church of Canada in connection with the Church of Scotland, on the fifteenth of June, eighteen hundred and seventy-five? lo A. 1 think Mr. llutehi.son was, but I am not sure. Mr. Fidler was not. Q. So that, as u nuittor of fact, there are only at present adhering to the said Rev. Robert Dobie nnd those whom he represents, seven ministers imd three retired ministers who were ministers of the Presbyteriiui Church of Canada in connection with the Church of Scotland, on the fifteenth day of June, eighteen hundred and seventy-five, the date of said union? A. Apparently so. Q, And one missionary that you are sure of, who belonged to the Presby- terian Church of Canada in connection with the Cliurch of Scotland, at that date? A. Yes. 20 Q. You have stated in your examination-in-chief that, to the best of your belief, there are at present about between thirty-six and forty congregations in connection with the Petitioner, Rev. Robert Dobie, and what he claims to be the Synod of the Presl)yterian Church of Canada in connection with the Church of Scotland ; will you be kind enough to mention where these congrv^cations are to be fomid ? A. I cannot mention them all ; I will give you some of them. At Col- lingwood a new church has been put up for our adherents there that cost six thousand dollars. At Tliorah they have i)ut up a church within the last year that cost thirteen thousand dollars. At Perth we have a missionary with three 30 charges; one of the congregations worshi^js in the Town Hall, the church having been taken away ; the others worship in churches; there are three stations there, served by the missionary at Perth. 1 .should have mentioned that at CoUingwood there are six stations served by the minister there. In Lancaster we have a church and a missionary. There is St. Andrew's Church, Montreal, here ; the congregation of IJayfield ; then, there is North Williamsburg, Williamstown, London, the congregation at Gait, and there are others which 1 do not remember at this moment. Q. You have mentioned nine congregations. How do you account for the fact that you have stated there were about thirty-six or forty, and you being able 4u to give only the names of nine ? A. I cannot remember the names; I am not the agent of the Church. There is Cote St. George, for instance, that has just occurred to me. Q. Is it not a f ict that according to Presbyterian procedure and polity, con- gregations with their representatives or their Presbytery rolls are always reported to the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland ? 10 20 IV mis- luch of Presby- on the a not. ig to the ul three eighteen ; Presby- hat date ? it of your ttations in rto be the Cliurcli of ions are to At Ool- |t coHt six last yeur ,vith three :5ii ■ch having ons there, |)Uingwood e have a here; the iixmstown, veinember jnt for the )eing able 4U ^e Church. lolity, coa- ls reported Ihe Church In the . Superior Court. 209 A. TIk! l*rewbytt'iy roll Ih niude uj), but there Ih n lurgo number of congre- RECORD. gatioiis which have no minif^vra, and there ha.s been a great deal of difficulty in making them u\), bocauHe there is hardly a church connected with our Church that haH not been attacked by a law-suit for the very purpose ot' depriving the wiid Synod of what these gentlemen are pleascl to call a (juorum. Q. Then, if you have thirty-.six or forty congregations, should they not No. 47. appear in the minutes which the said Rev. Gavin Lang lias filed in this cause? ,T"*"'j"" •^' ^^- Bryniner, Q. Why lU)t ? produced by 10 A. Because the roll that is given is a mere matter of convenience in the I'etitioncr, work. You might just as well ask us to put in lists of committees ? j , '?"'!',. Q. Did not all the congregations of the Presbytirian Church of Oamida in continaed. connection with the Church of Scotland, always appear in the miiuites of the Synod previous to the lifteenth of June, eighteen hundred and seventy-five, and from eighteen hundred and thirty-four? A. No; in eighteen hundred and thirty-five there was a roll appeared which was made up from otln^r papers, as is stated explicitly in the minute; from and during eighteen hundred and thirty-one to eighteen hundred and thirty-four there were no rolls, although the rolls were fdled in, and the reasons were given 20 as a mere matter of convenience ; in eighteen hundred and thirty-three the state- ment appears : " No roll of Synod appeiu's to have been preserved hitherto, either " in record or in print." There were no rolls in the written records. I never heard the rolls of Presl)yteries submitted to the Synod. I heard the names called over in order that those present might answer that they were present. I have never seen the written records kept by the clerk up to eighteen hundred au'^. seventy-five, so that upon that point I caimot speak. Q. What were the said names called over from ? A. From what was said to be the Synod roll made up from Presbytery rolls. Q. Then Presbytery rolls were supplied to the Synod ? ;jO A. I do not know that ; I said exactly what I do know ; I cannot say any more. Q. Did you never hear the clerk of the Synod read out in regular order the roll of the Presbytery of Montreal, and then that of the next Presbytery, et cetera? A. I said distinctly the roll was called over for the members present to answer to their names. Q. And those names were the representatives of congregations, were they not? A. I presume so ; they must have been. Q. Is it not a fact then, that the said minutes filed by the Rev. Gavin Lang 40 ought to show the said rolls of Presbyteries, and, secondly, the different congre- gations you have spoken of? A. I do not think it. Not having acted as either Synod or Presbytery clerk, or in any otbor capacity of that kind, I cannot say any more than I have said. The examination of this witness is adjourned. r > Itl RKCOIID. In the tSujifrior Court. No. 47. Deposition of Douf^ias BryniiHir, produced by Petitioner, filed 2nd July 1H79. continued. 210 Ami oil tliJH loiiitli (liiy ol'.liily, nt' llic y<';ir nlorcHaid. ri'Mppcniod the .^iiid witiU'Ha, DoiigliLs Hryimier, who conliiint'd his ovideiico as roUuwH: Q. Ciin you give mo now the twenty iiistanceH whiih you referred to in the previous part of your exaniiiuitiou ; and whieh you Htatcd you would look up and give this morning? A. The expression twenty meant simply that I could give instance.^, that is, an indeliiMte lunnher. I find on e.xaminiug the minutes " BBIJ," filed in this cause, from the year eightteii humhed and lilty-six down to eighteen hundred and seventy live, that one ImndrtMl and lifty-cight ministers and elders from the said Church and from other churelu's wtTu aski d to sit and deliherate with th(.> lo Synod. 1 lind tlmt in < ighteen himdred and lifty-six the Rev. Win. Snodgrass, then a minister in I'liiice Edward Ishiiid, hcing present, wms ap[)ointe(l on the twenty-ninth of May to preach by the Synod, as will be si'en sit page 18 of the Synod minutes for that year. On the following day, the thirtieth of May, as will bt.' seen on the f-ame page. Mr. Sno igrass atti'nde(l the said Synod us a dele- gate from th(! S_) nod of Novn Scotia, was introduct-d to the Synod and received a cordial welcome. At page 21 of th(> said Exhil»it " IJlilJ," of the same year, eighteen hundred and lifty-six, I find that the Rev. Wni. Snodgrass seconded a motion regiirding the comnnitatioii I'linds. 1 find at piige '2U of the snid minutes of the same yeai', that Mr. Snodgrass moved a resolution regarding Queen's Col- 2(t lege. I lind in eighteen hundred and (ifty-seven of said Synoil miiuites " BBB, page 11, of that year, that Rev. Wm Donald, a minister of the Synod of New Brunswick, .seconded a motion, as appears at page 20 of the same minutes ; st'conded another motion, as appears at page 25 of the said minutes; and seconded a third motion, as appears at page 27 of the said minutes. I find in Synod minutes " BBB," for eightetai hundred and seventy-tiiree, and at pnge 26 there- of, that Rev. G. M Grant, of St. Matluw's Church, Halifax, was invited to sit and deliberate At page 48 of said Synod minutes, 1 find that the Synod expressed their indehtednehs to the Rev. George M. Grant, Halifax, "for the " valuabU' services which, by his wise counsels and stirring elociuence, he has 30 " rendered at the important d(dil)erationK of the present meeting." 1 lind, at page 49 of the said minutes, that Rev. G. M. Grant moved, seconded by Mr. MacDonell, a vote of thanks to certain parties. 1 have now before me a memorandum con- taining dates and pages taken from the Synod minutes •' BBB," from the year eighteen hundred and fifty-six down to the year eighteen hundred and seventy- live, showing that ministers and elders of various churches were asked to sit and deliberate, wliicii dates and pnges I am ready to give if requireii. Q. Is it not true that the Rev. Dr. Snodgrass, whom you have referred to, was a corresponding ineml»er of the sjiid Synod, and that as such his name appeared on its roll as a member thereof? 40 (Objected to as irrelevant and as filling up the rtcor said U) in .)k up ., Umt 11 thin ii\(lred \n tlie ih the 111 Agvrtss, DM the of the /liiy, UH 11 dele- Liived a le year, nided a minutes n's Col- 20 ' BBB, of New iiinutes ; leconded 1 Synod there- to sit Synod tor the he has ao , at i^age cDonell, uui con- jlie year ,eventy- I sit and ■rred to, Lppeared liot per- [ynod ot Ijinber of BBB," 40 211 are thcue : •' Tlicie was pio liictd and nad an extract inijiute ol the Synod of " Nova Seotia of date Jnly Heventh, eighteen hinnh-ed and fifty-five, appointing *' the Rev. Wni. SnodgraHs, minister of ('harlottetown, Prince Edward Island, " delegiite from that Synod to atti'iid this meeting of Synod." Q. Was the Rev. Win. Uonuid, of wliom you have spoken, a correBponding nieinber of the snid Synod V A. I belit've so. The miinite says his name was added to the roll as a corresponding memlier. Q. Wliat about the Rev. George M. Grant ? 10 A. Tlu" Rev. George M. Grant being present, was asked to sit and delibe- rate. Q. Can yon show any liwv witli referenei; to the right.s of persons who are asked to sit and delibenitc in the Synod of tlie Presbyterian Cliurch of Canada in coiniection with the Clnn'ch of Seothind? A. I hiive e.xamined the Synod minutes '' BBB," filed in this cause, care- fully. I ran find no law on thi- subject, eitluM* one way or anotiier. Q. Is it not a fact that the form of asking strangers who are present to sit and deliberate hiis always been understood to be merely a matter of courtesy, and to give such person no right to become a member of the Synod or to vote in 20 the said Synod ? A. I C!\n state, as a matter of fiu't, that muny of those who were aske id of the kothiml. twenty- i?uitAhle 111 of the llowance. In the Superior Court. No. 47. Q. When ilid minister."^ of tlio Pie.sbylerian C'lurch of Canada in connec- RECORD tion with the Church of Scothind fn'rii receive from \he proceeds of the Clergy Reserves? A. From eighteen hundred and twi'nty-hvc ministers did. The Synod it- self was constituted in eighteen hundred ami thirty-(me. Q. You have said in your examin;ition-in-chief that it was beCiiuse minis- ters of the Presbyterian Church of Canada in ajnuection with the Church of '^.'^jl"''"'^)."" Scotland were in conni-etiou with th'' Ciuu'ch o( S<'otland tluit in eighteen hun- Biyimier dreil and fifty-five they had claims upon the [iroeeed.^ of the Clergy R'serves, and produced by 10 that it was the commutation of those claims that originated the Temporalities' Petitioner, Fund in question in this case. Did all the ministers on the Synod roll at the j . •""'i date of the pussing of the Act, the eighteenth of December, eighteen hundred iuid continued fifty-four, obtain reeognitiiju by the Government as having a right to share in these funds ? if not, why ? A. The Imperial Act of eighteen hundivd ami fifty-three defined those who had a claim to be continued in the enjoyment of the allowances from the Govern- nient from what was known as the (.Mergy Reserves. That was passed on the ninth of May, eighteen hundred and fifty-three. Any minister of the Church of Scotland in Canada, according to the Statute of eighteen hundred and forty, who 20 was receiving an allowance under that Statute, became entitled to its continuance for life. By the Imperial Act of eighteen iiundred and fifty-three and the Pro- vincial Act of eighteen hundred ami fifty-five, provision was made for commuta- tion. All those on the ninth of May, eighteen hundred aud fifty-three, who were receiving this alh^wanee, were entitled io eomnuite. Between the ninth of May, eighteen hundred auil fifty three, and the meeting of Synod in January, eighteen hundred and fifty-five, eleveii ministers had been placed on the Synod roll, who, by virtue of tb" Imperial Act of eighteen hundred and fifty- three, were declared not entitled to commute, and C(3ii3equently did not comumte. (^. Then these eleven were not rea^gnized by the Government as having 30 right to a share of this fund ? A. 1 presume not. The date was specific — the ninth of May, eighteen hundred and fifty-three. They must have been on the list of those receiving allowances. Q. What is the nature of the conuiM-tion between the Presbyterian Church of Canada in eonnection with the Church of Scotland and the Church of Scotland, in Scotland, and what was it up to the fifteenth of Jinie, eighteen hundred and seventy-five? A. The nature of the connection is set out repeatedly in the Synod minutes, of which I will furnish a list now if you choose. I specially refer to the Synod's 40 resolutions of eighteen hundred and fifty-one, to be found at pages 24 and 2() of Synod minutes for that year, and which are filed in this cause. Q. Is not the nature of the stud imion and the meaning of the words in her name, namely, "in connection with the Clun'ch of Scotlaml," defined by act of her Synod passed in the year eighteen hiuulred and forty-four, to be found in said Synod minutes for that year at page 16; has the said Act ever been repealed ? A. The act was in force on the fifteenth of June, eighteen huntlred and seventy -five. i w )?9I^ ,l!lf.| RECORD. In (he Superior Court, No. 47. Deposition of DoUgliLS Brymner, produced by Petitioner, filed 2nd July 1879. — continued. 210 Q. HiiH it ever been ivpealcd ? A. It has boon repealed .since that date. Q. By whom ? A. By the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland. Q. Where i.s the r» pealing Act to be found ? A. In the minutes filed by the said Rev. Gavin Lang, marked Zl. Q. Were you present when it was repealed ? A. I do not think I was. Q. I suppose you are aware why they went through the formality of 10 repealing it ? A. It was repealed because it was a misleading document, and had been made use of to damage the Church. Q. Then, it; it not true that the Churi'h of Scotland in Scotland, claims no jurisdiction over the said Presbyterian Church of Canada in connection with the Church of Scotland, and th;it the said last mentioned Church is a free and inde- pendent Church ? A. The Church of Scotland claims no authoritative jurisdiction. The con- stitutional position is to be found at pag'" 33 of Synod minutes, Exhibit 3'^, for the year eighteen hundred and forty-two, by which the Church of Scotland 20 declares that she has transferred the direct superintendence of the natives of Scotland, members of her Church, to the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, declaring at the same time that she will exercife no authoritative jurisdiciitm, it being a close and intimate, though voluntary, connection. Thi^; is the last constitutional declaration we have. It was upon the ground of this that the Rev. Dr. Cook and a deputation went to Scotland in eighteen hundred and seventy-five, to obtain the approval of the General Assembly for uniting with other ecclesiastical bodies. The report of the deputation to the General Assembly of the Church of Scotland is to be found at page 99 of the Appendix, for the year eighteen hundred and seventy- 30 five, of the said Svnod minutes " BUB." Q. If the said Cinu'ch of Scotland has never claimed any authoritative jurisdiction over the said Synod, lias she claimed any jurisdiction Jit all, and if so state what ? A. Yes, repeatedly, and exercised it. In eighteen hundred and thirty- four, as appears at page 66 of Synod minutes " BBB," of that date, is eting stated to be held in St. Andrew'n Chuich, Montreal, on the thirtieth of Novenibor, eighteen hundred and scventy- 10 five, it is not mentioned that any rolls were given in, as it is in all of the succeeii- ing sessions? A, I do not know that I was present at the said meeting. Q. Who com[X)sed the sederunt? Were they the same men who were present at the first meeting stated to be held on the fifteenth of June, eighteen hundred and seventy-five ? A. I presume so. Q. Do you know what Kirk-session Mr. George Brockie represented? A. Paisley, I believe. Q. And Mr. Roderick McLeod ? 20 A. I do not know. Q. Were the said two last-mentioned persons on the roll of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, on the fifteenth of June, eighteen hundred and seventy-five? A. I could tell only by referring to the minutes. I have looked, and do not see their names on the said roll. Q. Will you look at the Basis of Union, to which you have already referred in your examination-in-chief? You have stated, that according to the said basis of union it is optioniil as to what extent persons shall adhere to the Confession of Faith in the Presb'yterian Church in Canada; will you kindly point out the 30 particular part of the said l)asis which justifies you in making such a statement ? A. The statement I made was as to whether it was optional to sign for the whole Confession of Faith or not, and I abiib; by that statement. It was op- tioiuvl on the part of ministers joining the Presbyterian Church in Canada to receive the whole Confession of Faith, or a portion of it, as set out in the basis of union. Q. Will you point out the ;^articular part of the basis of union which jus- tifies you in making the statement that it is optional with persons belonging to the Presbyterian Church in Canada, as to whether they shall adhere to the Con- fession of Faith in its entirety or not? 40 A. The words will l)e found at page 5 of Exhibit " EE," and are these : " It being distinctly understood that nothing contained in the aforesaid Confes- " sion of Faith or Catechisms regarding the power and duty of the civil magis- " trate shall l)e held to sanction any principles or views inconsistent with full " liberty of conscience in matters of religion ;" meaning thereby to indicate the diflerent views which existed between the (Church of Scotland and the Presby- terian Church of Canada in connection with the Church of Scotland on the one side, and the Canada Presbyterian Church and other bodies, which the said Synod was asked to join, on the other. RECORD. In the Superior Court, No. 47. Deposition of DollglilS IJryiuiier, produoed by Petitioner, tiled 2nd July 1879, — coHtinued, RECORD. In the Superior Court. No. 47. Deposition of Douglas Bryniner, ? reduced by 'etitioner, filed 2iid July 1870. . — continual. 220 Q. Tliiit is yowv iiiterprolation of the iiieaning of tho wordw wliicli you quoted ? A. Yes. Q. What are the particular views that you refer to about the power and duty of the civil magistrate and the dilTerences between the saifl two Churches on that point ? A. The Canada Presbyterian Church held the same views with what is called the Free Church in Scotland, nuiintaining that Churches have a supreme power not only over spiritual, but over ecclesiastical matters even, when these latter involve civil interests, which claim is known as that of spiritual itidepen- lu deuce. The Church of Scotland and the Presbyterian Cluu'ch of Canada in con- nection with the Church of Scotland hold that in civil matters, even where eccle- siastical questions are concerned, the State is supreme. This is known by the name of Erastianism. The Presbyterian Church of Canada, to wit, the prede- cessor of the Canada Presbyterian Church, when it was formed into a Synod in eighteen hundred and forty -four, adopted as part of its questions put to a min- ister on his ordination the question . " Do you disown all Popish, A.rian, So- " cinian, Armenian, Erastian anil other doctrines?" et cetera, the word Erastian referring to the doctrines regarding Church government held by the Church of Scotland and by the Presbyterian Church of Canada in cttnuection with the 20 Church of Scotland. Q. Is the Church of Scotland Erastian ? A. The Church of Scotland has been chttrged with being Erastian, and is 60 designated in the protest lodged by the seceders from her comnumion, who se- ceded in eighteen hundred and forty-three, and their adherents in Canada who seceded from the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland in eighteen hundred and forty-four. Q. Does tiie Confession of Faith or Catechisms, which you have referred to regarding the power and duty of the civil magistrate, contain or sanction any principles or views inconsistent with full liberty of conscience in matters of re- 30 ligion ? A. It does not. Q. Then why do you object to the words in the second article of the said basis of union as follows: " It being gular ser- missiona- VIcDonald, i\\ Brodio, [. Burnet, 223 nnikin}^ t( ii. Thu ri'tiii'il iiuni.sti'r.s nw llcv. Win. Simpson, Hev. Thoinns Mc- RECOuD. Ph<>r,s()ii mid Rev. Hugh Niven, ninking three. The niiHsionnries are Rev. Mr. : — - lliitchison, Kev. II. D. Steele, Rev. .\. Shand and Rev. Mr. Fuller, making tour. Q. In all, how m:inv eccleHiastics connecteil with the regular Hervice of the Church ? A. Fourteen of ministers and miMsionaries, but hesideH that, two of the re- tired miniHters nt all events, Rev. Mr. Simpson and Rev. Mr. McPiit-rson, are engaged in missionary work. In the Sii/icn'or Court, No. 47. DepoHitiuii it' Douj^liiM . . Bryiuner, Q. Will you state what rights are implied in the invitation of the Synod to jiroducud by 10 visiting people " to sit nnd tlelilterate ?" A. The rights are what tln^ invitation implies — to sit and dtiliberate, that is, to take part in tlu^ debates ami generally to act as members of court without voting. Q. Will yon explai" what are the differences between the Church of Scotland and the Presbyterian Church of Canada in connection with the Church of Scotland on the one side, and the Presbyterian Church in Canada on the other, with reganl to the power of the civil magistrate that you have referred to in your cross-examination, and explain also what you mean by the i)ower of the civil magistrate ? 20 (Objected to as not arising out of the cross-examination, and as illegal. Objection reserved by the parties.) ^1. With regard to the first part of the question, the ministers and office-bearers of the fyhureh of Scotland atid of the Presbyterian Church of ('anada in connection with the Church of Scotland take an ol)ligation to ad- here to the whole Confession of Faith in its entirety, including the twenty- third chapter of the Confession of Faith, "o/ (he Civil MiKjistni/e." The Presby- terian Cluu'ch in Canada does not oblige its ministers to take an obligation to the whole Confession of Faith, especially in regard to that chapter which it leaves optional, thereby departing from the obligation to adhere to the whoh' Confession 3(1 of Faith in its entirety. W ith regard to the second part of the rpiestion, the re- lation of the Chiu'ch to the civil magistrate, that will be found set out in the twenty-third cha))ter of the said Confession of Faith. Q. Do I understand you say that in the Church of Scotland and in the Presbyterian Church of Canada in connection with the Church of Scotland it ia compulsory on the office-bearers iind ministers to give a full adhesion at their or- dination or induction to the whole Confessi' :!! If 224 RKCOHD. In the Superior Court. No. 47. Deposition of l)o\ijj;lnH UiymiuT, produced by Petitioner, filed 2iid July 1870. — continued. Q. Nt>\v, tilis ('iiniili rrcslivtt'riiiii (Jlimcli is luji' tA' flu' ('liiin-licw that miilt'd with tli(> xcccd' is tVoiii the l*i-(Ml»ytoiiiin (Hiuroli of (Jan«ction reserved by the parties. ) A. The (lirteience between tl'.e views of the Canida I'resbyterian Church and of the l*rt>sbyterian Clnirch of Ciumda in connection witli the Church of Scotland were considered as so fundamental thiil at the time of the first secession in Ciinada, in eighteen hundred ai\d forty-four, the Presl)yterian Church of Canada, the prcdec^essor of the (^anadii Presbyterian Church, added to the obligation imposijd upon its ministers the woid " Krastian," deseribing one of the 2(t errors to be liisowned, the saiil word " Erastian " referring to the views stated to be held by the Church of Scotland and by the Presbyterian Church of Canada in conru'ction with the Church of Scotland, with regard to the duty of the civil magistrate. Q. Were these view»e of so ir, compatible a chamcter with each other as to render union impossible without a modification of the views iield by the Presi)y- terian Church of (.'anada in connection with tne Church of Sc^)tlan(l ? (Objected to, as entirely illegal, irrelevant to the issues, and not arising out of the cross-examination, such a union, moreover, not being (lependent on the wit- ness' opinion or the opinion of any other individual man. 01»jection reserved by 30 the parties.) A. No union could take place without a compromise of principles on one side or on both. Q. Under the preamble and basis of iniion at present existing, when a min- ister would be ordained or inducted in the Presbyterian Church in Canada, woidil it be necessary that he should believe ar.d sub,scribe to the entire Confession of Faith as ho would have been bound to do before the said union and now in the Presbyterian Church of Canada in conne(Uion with the Church of Scotland ? (Objected to, as illegal, not arising out of the cross-examination, and more- over, because tin; said basis of union is a document which must speak for itself, 40 and cannot be interpreted by the witness, its terms being perfectly clear. Ob- jection reserved by the parties.) A. No. Correction. To my answer on page 61 of the foregoing deposition (page 206, line 27, of this record), namely, "Of St. Andrew's Church, Ottawa, the congregation I have " alre.uly spoken of," I desire to add : " ^'^Iiich was then a congregation ol" the " Presbyterian Church of Canada in connection with the Church of Scotland." 225 h tliat iiection out of (JIumtIi urcli ol" f Faith, possibUi U) iiii'la in sing out Church Church the first \ Church d to the lie of the 2(1 stated ti) Jauaihi in the civil her as to Presby- •isiug out II the wit- her ved by 3U [8 on one len a min- Ida, woalil ]fession of )W in tlie md ? lud uiore- Ifor itself, 40 iear. Ob- line 27, of Du I hiivc lou of the tlaud." 7» the Superior Court. No. 47. To tiiy iiiifwer ou pjijio !)7 (|> -gi' 220, lint- '12, of thin record), nmnely, " It RECORD. *' dooH iu)t." I winh to add '* MiniHtiMH of the (Jhinch of Scotland and of tl»e Pres- " bytciiiiii ('luircli of (JiUiidi in coimciiion with the Church of Scothmd take an "obliLMition to adhci'c to the whole Confension of Kaith, and arc not allowed '' to hold, teMch or preach nny doctrine contrary to, and inconsiatent witli those •* contained in it." And furthri deponent naith not, and this deposition having been read to ^.'-'P'^'*"''"" him, he declaren it to contain the truth. Brymner S. A. Abbott, Stenographer. produced by i() Petitioner, filed 2nd July 1879. continued. Schedule No. 63. ?M Reverend Gavin Lane, of the city of Montreal, minister, aged forty-three No. 48. years, a witness recalled and e.vamiiuMl, by consent of parties, on the part of the Deposition I'etitioner, this second day of July, ei.tfhteen hundred and seventy-idne, who, °f '*)" J^*^^- being duly sworn, de|)()seth and saith : p'roduced'by I have air Presbyterian Clumdi in Canada? (Objected to, as illegal and irrelevant. Objection reserved by the parties.) A. I am aware of it. Q. Notwithstanding this secession that took place at the time (1875) did any considerable numbei- of the people, ministers and elders connected, witli the Presbyterian Church of Canada in connection with the Church of Scotland remain in the last-mentioned Church, and keep up their connection with it and its or- ganization ? A. The congregation with which I was connected did so, and I believe 40 there were a considerable number of other ministers, and a considerable number of other people also, hut I could not say how many. Q. Are you aware that quite a number of influential people have main- tained their connection with it? A. A very considerable number in Mcmtreal; I do not know throughout the country much about it; but I fancy the same proportion elsewhere. ir 229 iiH it vhich )ner'.s 10(1 of ready ection ;. Ill, idered ^y of the )y the being Dvorsy •r nil go- to l>e which thodist lecide.l li shell ; .,(j of this " Church up the larties.) beciuisc h as in -five a .: . 30 iioctioii knother [orties.) r5) did litli the I remain its or- Ibt'lieve 40 iiuniber main- lu'ihout Cross- Exam 'me J without waiver of objections. Q. You are one of those that disseiiteil from the union of Churches which took place in eighteen hundred and seventy-five ? A. I was one of those who remained in connection with the Church of Scotland. Q. You objected to this union ? A. 1 coulil not object to a thing I was not a party to, I objected to go over to it; and I did not take part in the said union. Q. You have remained in connection with St. Andrew's Church ever since ? 10 A. I have. Q. What are your reasons for saying that the Presbyterian Church of Canada in connection with the Church of Scotland has existed continuously ever since eighteen hundred and seventy-five ? ' A. Because I liave been one of the body niyself. Q. What are your reasons for saying you have been one of the body ? A. Because I have belonged to it all the time continuously. Q. Have you any other reason for saying that you belonged to it continu- ously, except that you have continuously remained in connection with St. An- drew's Church, Montreal ? 20 ^.1 am aware that the organization has continued, by reports from all the diflerent congregations which form part of it, and which, 1 suppose, to this day continue to form part of it. Q. Have you any personal knowledge as to those reports that you refer to ? A. I do not know what the meaning of the question is. What personal knowledge can 1 have ? Q. Have you attentled any church courts in any representative capacity since the fifteenth of June, eighteen hundred and seventy-five. A. I have not. Q. Are you perfectly sure that no Presbyterian bodies besides the one you 30 have spoken of, the Presbyterian Church of Canada in connection with the Church of S-iotland, received any share of the proceeds of the Clergy Reserves money ? A. I am not sure. And further deponent saith not, and this deposition having been read to him, he declares it to contjiiu the truth. S. A. Abbott, Stenographer. RECORD. In the Superior Court. No. 49. Depositioa of Sir Hugh Allan, produced by Petitioner, filed Jind July 1879. — continued. Schedule No. 65. ' No. 50. Deposition James Cioil, of the city of Montreal, in the district of Montreal, aged fifty- of James eight years, a witness prodiu-ed on the part of the Petitioner, on this second day Croil, of July, in the year of our Lord, one thousand eight hundred Jind seventy-nine, ^g° 1^"°^^^^ 40 who being duly sworn, deposeth and saith : — glc^ 2nd ' Q. In what way are vou in the employ of the Board, Respondents in this July 1879. P.V " . ... cause A. Secretary -Treasurer. . i i .^ 6 f t>l I If m\ .j! RKCORD. /n the Superior (yovrt. No. 50. Deposition of J times Croil, produced by Petitioner, filed 2nd July 1879. — cmtimted. 230 Q. How lung liMVi' yon been such ? A. From ton to twelve ycar.s. Q. What Mre yonr dnties as snch ? A. My (lutios ns snch Mre to pay the ministers half-yearly, to take charge of all the funds, collect the interests from investments, make reports and gener- ally conduct the business. Q. HiiV" the Board any investments out of the Province of Quebec ? A. Not at present, and have never had since I have been secretary of the Boiird. I am aware that before my time the Board had money invested in the Commercial Bank of Up[>er Canada, nnd in bonds and debentures of the town of 10 Peterborough, iti the Province of Ontario. I now remember that this invest- ment in Peterborough bonds was h(dd since I have been secretary of the Board. Q. Where is the business of the Board genendly transacted ? A. In my office in Montreal. Q. Is not certidu business transacted in other places, at the meetings of Synods ? A. There are no meetings of the Board held now, other thun at my office. Q. Were there not meetings of the Board htdd in Ontario and Quebec at the places where the Synod happened to meet, that is, prior to the 15th June, 1875 ? ' 20 A. Yes ; meetings had been held previous to that date, but none have been held since. Q. Prior to the said 15th June where were the elections held to fill vacan- cies occurring in the Board ? A. Members of the Board were ai)pointed by the Synod. Q. In what places was the Synod held ? A. In difi'erent places throughout Upper and Lower Canada. Q. Did the meetings alternate between Upper and Lower Canada? A. They did not alternate, the majority of meetings were held in Upper Canada. 30 Q. The vacancies on the Board as they occurred were filled at these different meetings of Synod held at these difierent places, were they not? A. These elections to fill vacancies on the Board were in virtue of the terms of the Act of Ina)r[)onition of the Board, 22nd Victoria, 1858. Q. Can you state what was the number of original commutors on the Clergy Reserves Fund, that portion of the fund coming to the Presbyterian Church of Canada in connection with the Church of Scotland ? A. Seventy-three. Q. How many of these were surviving on the 15th of June, 1875. A. Thirty-three. 40 Q. How many of these joined the union, and how many did not? A. Twenty-six joined the union, and seven did not. In saying that twenty-six joined the union, I mean that their names cimtinued on the roll. Q. What roll do you mean ? A. The roll of the Assembly. Q. What were the names of the seven who diil not join the union ? A. The names of the seven who did not join the union, so far as are known 2e31 hargi' of the in the )wn of 10 invost- loard. ings of Y office. Quebec le 15th bve been 11 vacan- 20 Upper it these 1 V of the on the kbvterian 30 40 ing that boll. le known to me are : Ulv. Tlionias Mci'lienson, Kev. William Simpson, Rev. Jolni David- RECORD. aon, Rev. Fred. P. Sym, Rev. David Watson, Rev. Robert Dobie and Rev. Robert Burnet. The Rev. Robert Dobie is tlie Petitioner in this cause. Q. Can you give us the places of residence of these diflferent gentlemen on the 15th June, 1875? A. The Rev. Thomas McPlicrt^on, Lancaster, Province of Ontario ; Rev. Wi Wi Province ot Untaiio ; Kev. Uavul Watson, Tliorali, I'rovuice ot Ontario; Kev. produced by In the Superior Court, No. 60. Villiam Simpson, Lachiiie, Province of Quebec: Rev. John Davidson, North I^/F"''on Villiim.sbuig, Province of Ontario; Rev. Frederick P. Sym, New Edinburgh, (i^oil *rovince of Ontaiio ; Rev. David Watson, Tiiorah, Province of Ontario; Rev. produced b 10 Robert Dol)ie, Milton, Province of Ontai'io; Riv. Robert Burnet, Hamilton, Pro- Petitiouer, vince of Ontario. I wish to state that Mr. Sym, one of the seven, has since ^'^.^ ^""^ joined the Presbyterian Chureli in Canada, and 1 am not certain that by any act continued. of his own that he ever oflicially eonnecteil himself with the Petitioner. ' Q. Will you state the state of the fund belonging to the Board, Respon- dents, on the 15th of June, 1875 ? A. You mean tlie amount of money held by them. Q. Yes ? A. The amount of the investments on the 1st of May, 1875, which re- mained about the same on the I5th June, was of the par value of $463,371,52. 20 Q. That was the })roperty of the Presbyterian Church of Canada in connec- tion with the Church of Scotland, was it not ? A. The property of the Temporalities Board. Q. The sum of money you have just mentioned was a sum controlled by the Board, Respondents, for the benefit and in the interest of the Presbyterian Church of Canada in connection with the Church of Scotland up to that date ? A. Yes. Q. After that date it remained under the administration of the Board, in virtue of the amemlments obtained from the Provincial Legislature, did it not ? A. Yes. 30 Q- What was the amount of said fund in the hands of the said Board on the 1st of May, 1878? A. The par value of the fund was $403,976.52. Q. Since then, and up to December, 1878, some payments were made out of the fund, were there not ? '^i . A. Yes. Q. Can you approximately state about what the amount of the fund was after the deduition of these payments on the 31st of December, 1878 ? A.. $389,120.00. Q. To what extent have the Respondents drawn upon the capital of the 40 said Temporalities Fund since the 15th June, 1875, up to the 31st December, 1878? A. About $74,251.52. Q. Who were the members of the Board, Respondents^ on the 14th June, 1875? A. Rev. John JI. Mackerras, Rev. D. M. Gordon, Rev. John Cook, Rev. John Jenkins, Rev. Gavin Lang, Messrs. James Michie, Alexander MitchoiU, William Darling, Sir Hugh AUaii, John L. Morris, Robert Dennistouu and Wil- liam Walker. m fflfiif- RECORD In the Superior Court, No. 50. Deposition of James Croil, produced by Petitioner, filed 2nd July 1879. — continued. 232 Q. Under the logisltition of tlic Province of Qiiel)e(! relating to the Board, Respondents, the last-named members are still members of the said Board, are they not? A. Still members. Q. Provided the legislation of the Province of Qnebec had not made pro- visions for the permanency of the members of the said Board, which of them would have retired under the Statute 22 Vic, ch. 66, in the month of June, 1876? A. Rev. John Jenkins, Rev. Gavin Lang, ministers; Messrs. Robert Den- nistoun and William Walker, laymen. 10 Q. Which members of the Board would have retired under the same circum- stances in the month of June, 1877 ? A. Rev. D. M. Gordon, Rev. John Cook, ministers, and Sir Hugh Allan and John L. Morris, laymen. Q. Which members of the said Board, Respondents, would have retired under the same circumstances in the month of June, 1878 ? A. Rev. John H. Miickerras, minister, and William Darling and Alexander Mitchell, laymen. Q. E;i(h of the said members of the Board named by you have identified th<'m8elves with the Presbyterian Church in Canada? 20 A. All the said members except Sir Hugh Allan and the Rev. Gavin Lang. Q. Did the Rev. John Cook, of Quebec, the Rev. James C. Muir, of George- town, and the Rev. George Bell, of Walkertown, commute their claims upon the proceeds of the Clergy Reserves ? A. Yes. Q. They were, as the Petitioner was, what are ordinarily called commuting ministers ? A. Yes. Q. The three last named clergymen are now ministers in connection with the Presbyterian Church in Canada ? 30 A. Yes. Q. How much of the money of the fund administered by the Respondents have the said Rev. John Cook, the Rev. James Muir and the said Rev. George Bell, respectively received from the 15th June, 1875, to the 31st December, 1878 ? A. At the rate of $450 per annum each. Q. Now, were the Rev. John Fairlie of L'Orignal, the Rev. David W. Morison of Orm.stown, the Rev. Charles A. Tanner of Richmond, of the number of the original commutors of claims upon the proceeds of the Clergy Reserves ? A. No; they were not. Q. How much of the fund administered by the Respondents have the said 40 three last mentioned clergymen received from the 15th June, 1875, to the 31st December respectively ? A. At the irte of $200 per annum each. Q I suppose since the 15th June, 1875, there have been no elections for the purpose of filling up vacancies of the Board, Respondents ? A. No ; none. Q. What were the n.ames of the four ecclesiastical associations that on the ii ^ v(i; ' . 238 Boanl , [\rd, are L(ie pro- of them )f June, ert Den- 10 } circum- rh Allan 2 retired lexander identified vin Lang. ,f George- i upon the 3ramuting 20 tion with 30 jspon dents V. G'^orge i)er,1878? )avid W. le number aerves ? le the said 40 the 3 1st Ictiona for lat on the 10 20 30 40 15th of June, 1875, lunalgani.ited for the [juiposu of forming the Presbyterian RECORD. Church in Cnnada? A. The Presbyterian Church of Ciuinda in connection with the Church of /"■"*? Scotliind, the (.'hurcli of the Maritime Provinces in connection with the Church Court. of Scot laii'L the Presbyterian Clnn'(;h of th<' Lower Provinces, and the Canada Presbyterian Churcli. ' No. 50. (J. The three last named Churches bad no ebiini whatever to the sum of ^•'^J°jj,eg°" $408,871.52, previously referred to, previous to the loth June, 1875 ? {j^oU A. No. produced by Q. I'revious to tln; I5tb June, 1875, tbo.sc four reliiiious ort^anizutions Petitioner, were separate Jind distinct organizations, each having its own indcjpendent govern- ^ , "j"*^„ ment . — continued, A. Yes. Q. Practically for the purpose of government they were, previous to the 15th June, 1875, as .separate ms the Chuich of England is from the Presbyterian Churcli ol" Canada in connection with the Church of Scotland? A. Each was indei)en(](.Mit of the others in its jurisdiction and government. Q. The.se four sepai'ate organizations were unconnected with each other before the amalgamation, were they not? ^l. They were. Q. Now, the members and adherents of the Canada Presbyterian Church, and of the Church of the Maritime Provinces in connection with the Chundi of Scotland, and of the Presbyterian Chinch of the Lower Provinces appear to have gone into this amalgamation unanimously, did they not? (Objected to by Hespondents pleading, as illegal and irrelevant. Objection reserved). A. I do not know. Q. Did you ever hear of any dissent against the amnlgamation referred to on the part of the members and adlu'ieiits of the three last mentioned (Jhurches ? (Objected to by Respondents pleading, as illegal and irrelevant. Objection reserved). A. No. Q. You are aware, Mr, Croil, th;it there was a dissent against the amalgam- ation of the said four (jhurehes, not merely of a formal character, but on the part of several members and adherents of the Presbyteriau Church of Canada in connection with tlu' (.-hurcli of Scotland ? (Objected to by KesponJents pleading, as illegal and irrelevant. Objection reserved). A. I believe there was. Q. What was the name of the united church formed of the said amalgam- ating bodies ? A. The Presbyterian Church in Canada. Q. 1 think you know the Petitioner personally, Mr. Croil? v' A. Yes. Q. You were a member of his congregation in Osnabruck, and one of his elders there ? ,' n... i. • A. I was. ^: ill I- i' ■ I ; |t ■■ ■ Ij lit'; 'I 1 '1 i I ; 1 i 1; i i il ,1 1 1/ ' ii!^ ' 1:^ RKCORD. In the Supm'oi- Court. No. 50. Deposition of J uuies Croil, produced by Petitioner, filed 2nd July 1879. — continued. 2U Q. Do yoii know of wluit chiirgo ho is a ininister now ? A. Milton, (Jntario. Q. How long have you known the Petitioner to have been a minister of good standing oflficinting ? A. Since 1853. Q. Were you in Osnabrnck, Mr. Croil, when Mr. Dobie came there? A. 1 was. Q. Where did he conn- from ? A. St. Andrew's Church, Montreal, where he had been assisting Dr. Mathie- Hon. 10 Q. About how long had he been assistant for Dr. Mathieson, ms nearly as you can remember ? A. Alx)ut ten n)onths. Q. He had not, in fact, been long out from Scotland ? A. No ; not more than a year, i think. Q. Have you any doubt that he w^as Dr. Mathieson's assistant, and acted in the capacity of a minister assi ting Dr. Mathieson in St. Andrew's Church, Montreal ? A. Ill a snb.'iidiarv sense he could neither assist Dr. Mathieson in the cele- bration of baptis:n nor the communion, inasmuch as he was not ordained. 20 Q. But could lie not preach and instruct people from the pulpit ? A. Certainly; just as well as any layman could. Q. Do you pretend to say that he was merely a layman while assisting Dr. Mathii'Son in Montreal. A. 1 have no opinion upon it. Q. Are you not aware that wh<'n the Petitioner came to this country he came as a trained clergyman, fully licensed to preach the Gospel ? A. I believe he did. Q. The ordination refers to the formal and special appointment to preach and teach in connection with a particular congregation ? 30 A. Generally, but not always. Q. From the time of his ordination to tlu; charge in Osnabruck he became a member of the Presbytery in Glengarry, did he not? A. He did. Q. That was a Presbytery under the ecclesiastical jurisdiction of the Pres- byterian Church of Canada in connection with the Church of Scotland ? A. Yes. Q. The "Mr. Robert Dobie" referred to as one of the ministers present at thi' first diet held in St. Andrew's Church, in Montreal, on the 10th of January, 1875, more especially set out at line 23, j)age 5, of Petitioner's factum, is 40 the Petitioner, is he not ? A. Yes. Q. On the 9th day of May, 1853, the Petitioner, the Rev. Robert Dobie, was one of those ministers who was entitled to the benefits derivable from the proceeds of the Clergy Reserves ? A I do not admit that he was entitled. 235 or of athit rly as 10 i acted Ihurch, le cele- 20 ing Dr. |itry he preaoli I became le Pres- present llOth of 3tum, is '10 Dobie, I'oni tlio Q. Can yon deny it? A. I will give yon gronnds for it if yon choose, inasninch as he was not ordained nntil October following. Q. Is it not a fact that the Petiti»)ner was placed as early as 1852 or 1853 npon the list of those who were entitled to benefits derivable from the proceeds of the Clergy Reserves ? A. I have no certain information upon that point. Q. I suppose you are aware and you have no doubt heard that the Peti- tioner is one of those who had a claim to commute bv the Government, and did 10 commute it ? A. I have no doubt that he did commute it. Q, Did you ever hear any suspicion raised against his claim by the Chui*ch or any one else ? A. I always had a doubt in my own mind about it. Q. Did yon over hear any doubt about his right to be placed upon the list of the beni'ficiaries of the Clergy Reserves ? and if so, did such doubt ever have the eftoct of having his claim investigated, or of having him deprived of the benefits derivable from the Clergy Reserves? (Objected to by Respondents pleading as illegal and irrelevant. Objection 20 reserved). A. I never heard any objection previous to the commutation to his right to be put on the list, but I have heard doubt subsequently to his right to commute. Q. Such doubts have not had the effect of having his claim investigated or having him deprived of the benefits derivable from the Clergy Reserves ? The fact it, he has been drawing the regular allowance of $450 a year since 1855 without dispute of any one ? A. lie has. At page 38 of the Acts and Proceedings of Synod of the Presbvterian Church of Canada in ctjunection with the Church of Scotland ibr 1875 (in said Exhibit " BBIJ"), the Petitioner is recognized as one of the com- ao muting ministers by the Synod of the said Church. Q. Did the Board, Respondents, draw upon the capital of the fund under its control before the local legislation above referred to was obtained ? (Objected to as not in issue. Objection reserved. A. I think not. Crosa-Examined without loaiver of Objectiona. Q. In speaking of the good standing of the said Petitioner since the year 1853, between what periods of time do you refer to ? A. From 1853 to 1875. Q. That was the time you were connected with him in connection with the 40 Presbyterian Church of Canada ? A. That was the time. Q. Since that time have you had any church connection with him? A. None whatever. Q. I understand that when Mr. Dobie came out to this country from Scot- RECORD. In the Superior Court. No. 50. Deposition of James Croil, produced by Petitioner, filed 2tid July 1S79. — continued. IIKCOUI), In the Superior i'oiirt. No. r.o. Depo.sition of Jiiines Croil, produced by PctitioTKT, filed 2nd July 1879. — continued, 2:^6 land, lie was wliiit i> Ciillcil a Jicciiti.itt' or |)i()li,ili(»iifr of tlio (Jliiircli of Scotlaml in Scotland V A. Y<'8. Q. Yon liavo wpoken of tlio pm- value ol" tlic Innds in 1878 and at other dates. WaH that the real actual niarkotahlc value at thcBe times? A. No; in some oases invcstmcnt.s were worth more than the par value and others were woith less. Q. Generally speaking were not the funds which were invested in stocks worth a great deal less than par value? A. 'riiev may have been. 1 do not know. 10 Q. How long ;igo is it since the Board ceased to hold any investment in , Ontario? A. It must he about ten years? Q. How miuiy of the thirty-three commuting ministers whom you state were surviving on the 15th lay of June, 1875, were still surviving at the time ol' the institution of this suit in December. 1878? .1. Three have since died : Rev. Alexander Lewis, Rev. Alexander Spence and the Rev. John Towse. Q. Since June, 1875, up to the present time, is it not the caae that the said Petitioner has received without protest from the Board, Respondents, his l'(» semi-annual i):iyments in the same w^iy as he had been receiving them before the said June, 1875, with th ' exception ol" the last two .semi-annual payments ? A. He did receive them in the same way as formerly, with the exception just stated. Re- Examined. I produce a blank form of the cheque by which the half-yearly stipends of the ministers are paid, marked X. We have made no alteration in the che([ue since the union in 1875, the checpie has remained just the .same is it was previously, the name of the Board 3o having remained the same. I am the Secretary-Treasurer. I countersign the cheques as Treasurer, along with the Chairman, who signs them as Chairman. Q. You did not consider you was doing to Petitioner any extraordinary favoui- in paying him the amount (jf those che(|ues? A. I did not pretend to dt) so. Q. You (lid not considei- that the Petitioner had placed him.self outside the [lale of the Church, or otherwise di.^^qualiiied himself from being entitled to rec(.'ive his annual stipend, notwithstanding the fact that he did not unite with the Presbyterian Church in Canada ? 40 (Oi jected to as illegal and not arising out of re-examination, and, moreover, as involving a (juestion of law which the witness(s' (jpinion cannot affect. Re- served). A. I certainly did not think that the Petitioner had di.squalied himself (by refusing to join the union) from particip iting in the benefits of the Temporali- ties' Fund, ina.smuch as special provision had been made for such cases by the Synoy the Q. Do you pieleini to way that hi- re(|iiircd any aid or I'avur from the Synod to enaljle him to draw his haH-yearly atipunds after the union ? (Ohjteted to as illegal and not aiising out of rc-exiuniniitioii, and, moreover, as involving a (lueation of law vvliieh tlu" witnesses' opinion cannot utt'ect. Re- served). A. No ; I do not. Q. The [irovisions you liiive just nferred to as having hei-n made hy the Legislature is contained in the Acts of the Local Legislature, which is sought to he impugned by the Petitioner's petition ? 10 A. Yes; the acts of the li'gislatu,ies of Ontnrio and Quebec. And further deponent siiith not; and this, his d-position, having been read over to him, he declares it to contain the truth. IL CuTT, Stenographer. KECOUD. In (he Superior Court. No. r)0. UopOMitioii of JlllUCH t'roil, I)roduoe(l by 'etitioricr, lilod 2nd July 1879. — continued. No. 51. Schedule No, 66. Deposition of James On the second day of July, in the year of (jur Loivl one tliou.saiid eight hun- S. Mullan, dred i>nd seventy-nine, personally came and app ared Jam s S. Mullan, of Osua- witness for bruck, in the Province of Ontario, Presbyterian Clergyman, aged forty-si.\ years, gKj'o^d *^^ and witness produced on the part of the Respondents, with the exception of Sir jyU igyg. Hugh Allan and Rev. Gavin Lang, iind examined by consent of parties, the said 20 witness being about to leave the Province, who being duly sworn, depuseth and saith : I am not related, allied or of kin to, or in the employ of any of the parties ill this cause ; I am not interested in the event of this suit. 1 was ordained as a minister of the Presbyterian Church of Canada in con- nection with the Church of Scotland in 186L I was still a minister of said Church on the loth June, 1875. The Synod of the said Church was holding Its session in Montreal, in St. Paul's Church, on the said loth June. 1 remember that on the 1-itli day of June of said year I was one of ten mem- bers of said Synod who dissented from a resolution of the said Synod carried on 30 that day, to the effect that the Synod should repair on the next day, the 15th June, to the Victoria Skating Rink for the purpose of consummating the union of Churches which is in question in this cause. I remember that on the next day, the loth of June aforesaid, when the said Synod met in St. Piiul's Church, it adjourned to meet in the said Skating Rink, or Victoria Hall, as it wjis called, at ten minutes belbre eleven in the forenoon of said day. Q. Did you then immediately adjourn with the rest of the members of the said Synod to the .said Victoria Hall ? A. No. 40 Q. You remained behind in St. Paul's Church ? A. Yes. Q. What members of the Syiuxl remained behind with you ? A. The Rev. Robert Burnet, 'of Hamilton ; the Rev'. Robert Dobie, of Milton; the Rev. David Watson, of Thorah ; the Rev. John Davidson, of Wil- m IMAGE EVALUATION TEST TARGET (MT-3) /. Ik? MS) 1.0 ■ 50 '"^" I.I 1.25 2.5 ^ i— 1 2 2 i ■- IIIIM lU 14 ill 1.6 P^ 7 :\ \ <^ c^ r^^ % fe. s> ;^ u m RECORD In the Superior Court, No. 51. Deposition of James S. MuUan, witness for Respondents filed 2nd July 1879. — continued. 238 liamsljurg ; the Rev. TliMinas McPIktsoii, of [iniicMstor; tlic Rev .lolm Muc- donald, of Beachridge ; and flie Rev. William Simpson, of Lachiiie. There were also two elders, who were members of the Svnod — one Mr. McMillan and one Richard McCrimmon. Q. Will yon kindly stitte what took place in the said St. Paul's Church amongst those who remained, immediately after the rest of said Synod had re- paired to the Victoria Hall ? A. The Rev. Robert Dobie was appointed mo'^erator, and the Rev. Robert Burnet was appointed clerk of Synod. Q. How were they appointed ? 10 A. They were appointed by vote and resolution of those who remained be- hind. Q. Before moving the appointment of the moderator and clerk did these said gentlemen attempt to constitute the meeting with prayer, &c ? A. I would nf)t be sure whether it was before or after the appointment of the moderator and clerk that the meeting was opened in the usual form. Q. What next took place as far as you wereconcorned after the said motion to appoint moderator and clerk ? A. Immediately after that, I went up and spok*? to the Rev. Mr. Dobie who had taken the chair as moderator, aud asked him if they had complied with certain 20 standing laws in our Church, and he asked the Rev. Mr. Burnet if he had done so, and he replied not, then I replied that for this and other reasons the whole proceedings were illegal. Q. What did vou do then ? A corded Q A Q preseni A Q A Rink. Q A Q A Q A nection Q A Q A The sederunt was taken ; that is, the nauies of those present were re- by the said Rev. Burnet the clerk. What next ? I WHS asked my name and I refused to have my name on the roll. Is it not a fnct that there were only ten members of the Synod then ,? Yes. What next did you do ? I then left the said St. Paul's Church and went to the Victoria Skating What di I you do when you got to the s.tid Victoria Skating Rink? I waited until the preliminaries were gone through consummating the 3(1 union of the Churches Was your name called out in the Victoria Skating Rink by any one ? Yes. Who called it out ? 40 The clerk of th<' Synod of the Presbyterian Church of Canada in con- with the Church of Scotland, which had repaired there His name, please ? The Rev. John H. Mackerras. How long were you there before the articles of union were signed ? I should say I was there three-quarters of an hour before, perhaps more. 239 Mi.c- rvere one arch 1 ro- )bert 10 i\ be- these lit of lotion e who n'tiiin 20 (lone whole re re- then 30 mating l!ent piece, or a quarter, at the time of obj notary coming in and handing a document to the clerk. Whether it was on the fourteenth or fifteenth, I cannot swear. Q. Was the document you refer to as handed by a notary to the clerk, read before the Synod ? A. Yes. Q. And before the withdrawal of the members to the Skating Rink ? A. Ofeour.se it was ; it was either that day or the previeus day. Instead 40 of giving it that way, I would say that I am not aware of any document in the way of a jjrotest being handed in to the Synod beyond the one in which I was a party. Q. Did you not say a notary came into the Assembly and handed a docu- ment to the moderator or clerk ? A. I did. Q. Did you not yourself, on the fourteenth June, sigti a protest agaittst No. 51. Deposition of Jiimes S. Muilan, witness for Respondents tiled 2nd July 1879. — continued. i|i> RECOHD In the Siiperior Court. No. 51. Deposition of James S. Mullan, witness for Respondents filed 2nd July 1879. — continued. 240 the consuininiitioii oftlio union ot" the Prosliytoriui Cliiai'cli of (Jiiniulu in connec- tion with the Clnirch of Scotljin'l with the other charges referred to, and is not such protest correctly .set out at pages 35 iuid 36 of the minutes of SynoJ dated the fourteenth June, eighteen hundred and seventy-fiVL* ? A. Yes, I believe it is. Q. You signeii that protest i \ conjunction with the present Petitioner and others ? A. I did. Q. And the signature, "J. S. Mullan," attached to that document is your signature ? 10 A_. It is my signature, or at least a representation of it. Q. You say there was a prayer olFered up, after Mr. Dobie was put into the chair. Now, is it not a fact that it was not the ordinary prayer constituting the Synod, but a prayer for the guidance of the distressing comiition of the Church ? A. I mean to say that the meeting then was opened in the usual way in which the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland has been opened since I became a minister of it. Q. Have yon mentioned the names of all those who were present in St. Paul's Church after the withdrawal of certain members to the Victoria Skating Rink ? 20 A. I think I have mentioned all the names who were acknowledged mem- bers of the said Synod of the Presbyterian Oliurch of Canada in connection with the Churcii of Scotlaml. Q. Was there any one else there ? A. Yes. Q. Give their names ? A. I could not give you the various ones who had come there from curiosity, or perhaps interested, as there generally are on these occasions. Q. Was not Mr. Douglas Brymner present from the time of the withdrawal of coitain parties to the Victoria Skating Rink, during the whole of the time that 8(i you were present ? A. I believe he was. Q. Before you left, Mr. Mullan, you stated that you asked the Rev. Mr. Dobie if he had com[)lied with certain standing laws in the Church. Was not your enquirv in reference to the deposit of the twenty-live cents or quarter of a dollar ? A. Not altogether, but that was one part of it. Q. Is there lui}- regular form for the opening of the Synod? A. There is; 1 am not aware that thern is any printed form. Q. Did not those who remained behind in St. Paul's Church proceed and 4(i c(mduct their l)usiness as if they were the continuation, and in fact, the same Synod as had been regularly appointed in that building on that morning ? A. No, sir. Q. In what respect did they vary from this ? A. They varied in making a new .sederunt; if it had been a continuation of the old one there was no necovssity of asking me anr of a id and 4ti e same uiation uies to Synod. In the Superior Court. No. 51. Deposition of" James S. Muilan, filed 2nd July 1879. — continued. Q. Was thiis HcdtTuiit Kusinoss, anything more tlian merely taking the RECORD names of tho.se who were present ? A. Yes, and constituting. Q. Con.stituting what? A. Constituting the Synod. Q. What constituting of the Synod was there? A. Tliere was the making up of the roll, the reading of portions of Scrip ture and prayers. Q. Are you prepared to swear that there was any reading of portions of witness Ibr 10 Scripture at the continuation of the meeting of the 15th of June ? Respoudents A. There was at the opening. Q. In the morning ? A. No, but after the others had left. Q. Are you sure about that ? A. Yes. Q. As sure of that as a^ou are of the balance of your evidence. A. Yes. Q. What was the order of the reading and praying and recording of signa- tures aii'd other formalities observed at the continued meeting while you v^ere present ? A. I would not be positive whether the opening formalities were first, or the taking down of the roll ; but I am of opinion that the roll was taken after- 20 wards. Q. I understand, Mr. MuUan, that on your being informed by the moder- ator and clerk that certain formalities had not been complied with, you immedi- ately left ? A. I left shortly afterwards. Q. How long afterwards ? A. I think about ten minutes after. Q. Notwithstanding these irregularities you waited just as an onlooker for about ten minutes? A. Yes. 30 Q' What time of day was it when you left St. Paul's Church ? A. I could not say exactly. Q. What time was it when you arrived at the Victoria Skating Rink ? A. I did not examine my watch. ^. In a case, Mr. Muilan, in which the regular moderator of the Synod of the Presbj'terian Church of Canada in connection with the Church oj' Scotland leaves the building, or is unable to attend a meeting of the Synod, is it not the rule in the Church to appoint in his stead for the time the senior ex-moderator present ? A. It has been the custom, and I think still is, for a moderator on his 40 leaving the chair to ask an ex-moderator to take his place. Q. Will you kindly read over the question Ciirefully again ? A. With regard to a moderator being unable to come to a meeting of Synod, I believe then the members of the Synod would proceed to choose another in his room and stead. 242 ■rl IIECOIID. In the Superior Court. No._51. Deposition of James S. Mullan, witness for Respondents filed 2nd July 1879. — continued. ij. Is it the rule in .such cases to choose the SLiiior ex-uiodeialor present? A. I think not. Q. Yon think not ? A. We know no seniors. Q. Yon are sure now that you are speaking from tlie hook ? A, With regard to ex-moderators, so lar as 1 am aware, they stand on an equal footing. Q. You are sure so far as you are aware. Can you undertake to say defi- nitely that the senior ex-moderator has not a preference in the presidency in the case sup[)osed ? 10 A. I think not. I Q. I ask you if you are sure ; I do not want a speculative opinion ? A. I am not sure. Re-Examiiied. Q. Mr. Douglas Brymner, who has heen spoken of in the cross-examination as being present at the meeting, was not a member of the said Synod at that time, was he ? A. T am not aware that he was. Q. You spoke of a form being observed at the opening of Synods. Do you mean to say that there is any specified form of prayer ? 20 A. No, sir, Q. The person conducting the prayer, prays as he chooses? A. Well, I would not say as lie chooses, but to the best of his ability. In addition to what I have given in the foregoing deposition, I wish to state in explanation of the answer to the question " What constituting of the Synod was there?" That there was also the appointment of a new moderator, it being duly moved and seconded that the Rev. David Watson be, and he is hereby ap- pointed moderator of this Synod; the office he modestly declined; the Rev. Robert Dobie was then unanimously chosen. David Watson was not an ex- moderator and could not be considered as taking the chair in the absence of the 30 moderator. And further deponent saith not, and this being read over to him he declares it contains the truth. 11. CuTT, Stenographer. nil - No. 52. Schedule No. 67. Deposition T 1 R .ri ^^" ^''^''^ seventh day of July, in the y )ar of our Lord one thousand eight hun- Mackena's ^''^d and seventy-nine persomdly came and appeared John Hugh Mackerras, of produced by the city of Kingston, in the Province of Ontario, professor of classical literature l^cspondeuts in Queen's College at Kingston, aged forty-seven years, a witness produced on the part of the Respondents, who being duly sworn, deposeth and saith : I am not 40 related, allied or of kin to, or in the employ of any of the parties in this cause. filed 7tb July 1879. 243 liture on not 40 1 iUii oiir of tln' lii'Siioiidijits. I iuii an ()rd:iiiu'(| iiiiiiintor of tlio I'rc'shytoi'ian UKCOllD. Church of Ciuiiula in connection with the Cliiirch of Scotland, having been or daincd in September, eighteen hundred and fifty-three. Q. How long have yon been a professor in Queen's College, Kingston ? A. Practically fifteen years, but nominally only thirteen. In the Siiperior Court. Q. The C^ieen's Colleg*? you have spoken of is a college connected with tiie said Presbyterian Church of Canada in connectit)n with the Church of Scotland? A. Yes, and always has been. Q. It is used for the piupose of training ministers of that Church ? 10 A. Yes, and for other purposes. Q. Since tiie time you were ordained a clergyman of the said Church have you been in the habit of attending annual meetings of Synods ? A. Regularly. Q. l^ou never missed any meetings ? A. I never mi.ssed an annual meeting; I don't think I missed an hour. Q. I understand that you have had some official connection with that Synod for a number of years ? A. In eighteen hundred and sixty-five I was appointed clerk of Synod. Q. How long did you continue to act as such clerk ? 20 A. I was clerk of Synod ever since up to eighteen hundred and seventy- five, and joint-clerk of the General Assembly since 1875. Q. Will you kindly define the duties you had to undertake in your capacity of clerk of such Synod? A. To record all the proceedings and carry on the correspondence of the Church. Q. Are you familiar v/ith the procedure of all the church courts connected with the said Church, and the laws ? A. 1 am. Q. You have doubtless had a great deal of experience in your capacity of 3(1 clerk ? A. Yes. Q. Can you [)oint out the mode in which the connnutation of the rights of individual ministers was made with the Government ; that is to say, was it made directly between the Goveriuueist and individual ministers, or otherwise ? ^i. The Government comuuited with individuals through the Synod. The ministers did not come into direct contact with the Government; they acted through Dr. Cook, giving him a power of attorney. Q. All that appears by the resolutions which are to be found in the minutes of Synod ? 40 A. Yes, I have with me the originals of the whole of the minutes of the said Presbyterian Church of Canada in connection with the Church of Scotland from the beginning down to the fifteenth of June, eighteen hundred and seventy- five, the date of the union in (juestion in this cause. Having looked at the three books filed in this cause by the Petitioner, marked " BBB," I say the same cuntain a correct copy of the said minutes of the Acts and Proceedings of the said Synod, the last page of which ends on the fifteenth of June, eighteen hundred and seventy-five, and is marked on the back of the saiil page with the letter A No. 52. Deposition of Rev. John Hugli Mackerras, produced by Respondents filed 7th July 1879. — continued. I H !, 1 jB ■ h ii^H ('M'i' ' A 1 ■ 1 1 ifl [?o«»^Ti i l.tii '}'(} 'v.' i' *' f ''» , -v,-. ,.-• ^■8^' -IS,, llECORD. In the Superior Court. No. 52. Deposition of Kcv. Joliii Hugh Jlaekorras, produced by llispondents filed 7tli July 1879. — continued. 244 and the words, " Tlu; minutes of eighteen liuudred and tieveiity-live end liere." The said iiage A is wrongly bound up in the said hook and should have b'.'en in- sorted after pag'' 40 of the said minutes of June lifteentii, eighteen hundred and seventy-five, but the said I'age A is a correct and true copy of tlie original I have here and now exhibit, and il v. as kept by me as clerk of the said Synod and is duly signed. Said minutes on p;tgo A are signi'd with the signature of the moderator, to wit "W. Snoilgrass, D.D., moderator," which signature I now verify; and also the signature, " J. II. Mackerras, Synod clerk," which signature is mini' and was written by me at thi; bottom of said minutes. In thes;nd origi- nal minut'.'s, nftei' my signature and the signature of the moderator which I have lo just lefcrrod to, comes the attestation clause as R)llows: " At Kingston and within "Queen's Colb'ge there, the eighteenth d ly of October, eighteen hundred and "seventy-live years, the committee appointed by the late Synod of the Presby- " terian Church of Canada in coiniection with the Church of Scotland to examine " the record of this session, having examined the same, and having found it to be " carefully and correctly kc[)t, herel)y request the moderator to attest the same. " J. B. Mowiit, convener." And then follows : '• And the sjirae is hereby attested " accordingly, W. Snodgriiss, D.D., moderator." The signature, " J. B. Mowat, convener," is the signature to my knowledge, and in the proper handwriting of the convener of the said attesting connnittee, to wit, the llev. J. B. Mowat; and 20 the saiil liist-uKMitioned signature, '• W. Snodgniss, D.D., moderator," is the sig- nature and in the handwriting, to my knowledge, of the said moderator. Rev. Dr. Snodgiass. The minutes are attested every year in order to show that th? clerk has faithl'ully transcribed from the scroll the minutes of tlu^ previous year. Q. You are able, then, to state positively, in your official capacity, that the said hist page A contains the minutes of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, taken by you on the iif- teenth of June, previous to the consunnnation of the said union ? A. I do. Q. All the resolutions of the Synod under which the said commutation of ho the claims of ministers was made are to be found in the Acts and Proceedings of the Synod, marked " BBB " V A. They are. Q. And it was under these resolutiojis the commutation was made ? A. It was. Q. The amount obtained as the result of the commutation was how much? A. One hundred and twenty-seven thousand four hundred and forty-eight pounds, five shillings currency. Q. What was don(; with that money ? To whom was it handed over? A. It was handed over to Commissioners appointed by the Synod of the 4u Presbyterian Church of Canada in connection with the Church of Scotland, to receive it, and l)y them held in trust, as the minutes show. Q. How many ministers of the said Chnrch had claims on the proceeds of the Clergy Reserves at the time of cora-nutation, and how many commuted their claims ? A. Seventy-three connnuted. I think there was only one who declined to commute. II in- iind liiive n\ is r tho now atiiro origi- hiive lu ^ithin 1 and L'Gisby- i\nune to be same, tested [owat, ing of ;; and 2(i lie sig- , Rev. lat th? s year, lat the hurcli le iif- Ition of 30 mi's of much ? y-eight ■L-? of the 4U m d, to [eeds of Id their 245 Q- In the Stipcrior Court. lin ed to (';in yon nit^ition the nnuiher of those who were on the roll nf Synod at RECORD, the date of coninuitation who were not on the roll at the passing of the Imperial Act of eighteen hundred and fifty-three. A. Eleven. Q. You are aware, I suppose, that subserpiently an Act of Incorporation was passed by the Parliament of Canada to incorporate the Board, Respondents, No. 52. for the purpose of managing the said fund ? Deposition A. There was such an Act obtaiaed. jol^„ jju^jj Q, Do you know at whose instance it was obtained ? Mackerriis, 10 A. At the instance of the Synod. produced by Q. Since the passing of the said Act, which is 22 Vic, cap. G6, will you 1^^''"?^'^"'^^ state whether or not the said Synod ever had any controlling [»ower over the j^i . jg-jg fund, and if so, what the nature of the controlling power was ? — continued. (Objected to as being illegal, the said funds being only controllable in the manner pointed out in the said statute, 22 Vic, cap. 66, and under the original resolutions of said Synod commuting the same. Objection reserviid by parties.) A. They had full control as shown by the fact that they elected members of the Board every year ? every year the Board had U) report to the Synod and did report; and b_^ iaws passed by the Board, in order to be permanent, had to 20 be sanctioned by the Synod. Q. Was this with the consent and approval of the Petitioner in this cause, and in fact of the whole Synod ? A. It appears so, because there was never any dissent recorded. Q. The Petitioner was a member of the said Synod ? A. He was, since eighteen hundred and fifty-three, and took part in its pro- ceedings. Q. And was in a position to have objected if he chose ? Q. Yes. Q. Are you aware of any amendment to the said Act incorporating the 30 Board, Respondents, previous to the amendment which was passed by the Quebec Legislature on the twenty-third of February, eighteen hundred and seventy-five ? A. There was an amending Act. Q. Do you remember what year ? A. It was assented to April iifth, eighteen hundred and sixty-nine. Q. Was the Rev. Mr. Dobie a member of Synod at that time ? A. He was. Q. Are you aware whether or not the Board, Respondents, made any report to the Synod as to the obtaining of the said amending Act? A. They did so report. 40 Q. Did the Rev. Mr. Dobie make an}- objection ? A. The report was referred by the Synod to a Committee. Mr. Dobie was a member of that Committee, and no objection was ever offered by him to the obtaining of this Act. Q. Will you kindly point out the report iu the minutes of Synod which refers to that amending Act of eighteen hundred and sixty-nine ? A. It is to be found in the said minutes for the year eighteen hundred and J I 246 RECORD. In the Swerior Court. No. 52. Deposition of Rev. John Hugh Mackcrrns, produced by Resp )ndent8 filed 7th July 1879. — continued. .si.\ty-iiiuo, luulei- Appoirli.K A, iti tlie lloport of tlie Toun)oriilitio.s' Board. Said Appendix is imt paged, but it coinuri after page 50 of the said niimites of said year. The clause is as follows: " During last session an Act of Parliament was *' obtnincd from the Legislature of the Province of Quebec, empowering the Board " to invest their surplus funds in mortgages." The report as a whole was re- ferred to a ComuMttee of which Mr. Dobie was a member, and hence he must have been cognizant of that paragraph. Tlie report was adopted hy the said Synod. Q. Before the union of Churches which is in question in this cause and which took pluce in June, eighteen hundred and seventy-five, were the Acts of 10 the Local Legislatures, to wit, of the Legislatures of Quebec and Ontiirio, which are set forth in the pleadings in this e:iuse, submitted to the said Synod — I mean the said Act to amend the Board, Respondents, being 38 Vic. chap. G1, passed by the Legislature of the Province of Quebec, and the Act 38 Vic. chap. 75, passed by the Legislature of the Province of Ontario, and also the Act passed by the Legislature of the Province of Quebec being 38 Vic. chap. 02 ? A. They were submitted. Q. Were they discussed ? A. They were read clause by clause and were approved of. (Petitioner here objects to this evidence inasnuich as the Acts and Proceed- 20 ings of Synod tiled in this cause are evidence of what took place in the Synod and the witness cannot give mere verbal testimony as to the proceedings of said Synod. Objection reserved by consent of parties.) Q. I supposed the minutes of Synod show that said Acts were submitted? A. They do. Q. I think these acts were obtained at the suggestion of said Synod, were they not ? A. They were. Q. A large Committee was appointed by the Synod to obtain such acts? A. I think a large Committee was appointed of which Dr. Snodgrass was 30 convener. At page 44 of the minutes of June, eighteen hundred and seventy- four, I see a Committee was apjjointed " to consider all the matters on which " legislation may be required and to take all competent measures for obtaining " such legislation, with power, if need be, to employ counsel in reference thereto." That Conunitte reported to the Synod of November, eighreen hundred and seventy-four, as is shown at pages 19 and 20 of minutes for November of that year : " The draft Acts •were thi'u read clause by clause, and with certain "amendments which were noted by Mr. Croil for the guidance of the committee, " were approved ol," and the thanks of Synod were then given to the committee on Legislation. Then there was a committee appointed to watch over legislation 40 while it was going through the Legislature. The Committee on Legislation re- ported to the Synod, as is shown at page 28, minutes of Synod for June, eighteen hundred and seventy-five, that the necessary legislation in regard to church and college property had been secured and in consequence the Synod resolved to pro- ceed to the consummation of said union. Q. You were present, I believe, in your capacity of clerk at the meeting of Synod on the fifteenth of June, eighteen hundred and seventy-five ? A. I was. Saul saiil t was Roard i\H ve- inuBt e said e and .ct8 of 10 which mean sed by passed )y the I'oceed- 20 od and Synod. itted ? I, were LCts? iss was 30 venty- which aining reto. and of that certain uiittee, iimittee slation 40 tion re- ghteen reh and to pro- .'d eting of 247 Q. Will yoii point out in the minutes of Synod tln' resolution which was passed in reference to said union and to the adjournment of the Synod to con- summate it ? A. Tlie minute is found on page 35 of the minutes of said Synod of June, eighteen hundred and si'venty-five. Q. Will you kindly state how many members of the Synod present on that occasion dissented from the motion which was carried to consunnnate the uniim and to adjourn on the following day to the Victoria Hall or Skating Rhdt for the purpose of consunnnating said union ? 10 A. Eight ministers and two elders. Q. How many members of Synod voted for the resolution ? A. I could not say all the others who were present. It was carried by an overwhelming majority, Q. Will you give the names of the ministers who dissented? A. Mr. Dobie the Petitioncsr, Mr. Simp.son, Mr. Robert Burnet, David Watson, J. S. Midlan, Thomas McPherson, John Davidson, John McDonald, ministers: and two elders, Wm. McMillan and Roderick McCrimraon. Q. Can you tell me what ministers or congregations Mr. McMillan and Mr. McCrinnnon represented ? 20 A. Mr. McMillan represented London, and Mr. McCrinmion, Lancaster. The Mr. McPherson whom [ have referred to was Mr. McCrinunon's minister, and and they both re[)riseMted the same congregation. Q. Why was the adjournment made to the Victoria Skating Rink of the Synod on the fifteenth of June? A. Because none of the churches would hold the assembled body after it had united, for want of space. Q. On the fifteenth of June, when, as you stiite, the Synoii adjourned to the said Victoria Hall or Skating Rink, to consummate the said union, did you proceed with it in your capacity of clerk ? 30 A. I did. Q. How long did the said Synod of the Presbyterian Church of Canada in connection with the Church of Scotland remain there legally constituted as a Synod before the said union was consummated ? (Objected to by the said Petitioner on the ground that it is not competent for the witness to state as to the legality or illegality of the said Synod on the said occasion. Oljection reserved by the parties). A. I should say about on hour, at least. Q. Do I uuderstand you to say that the said Synod of the Presbyterian Church of Canada in connection with the Church of Sc^^'md continued its ses- 40 sion in the Victoria Hall for some time after adjourning ..ere before the union was consummated ? A. Yes, it constituted when it went there, and it remained there for, I should say, at least about an hour before the moderators had appended their sig- natures and formed the union. All the rolls of the different bodies had to be called, which was a very tedious operation. J[^^al[edJhej;oll_of my Synod._^ Q. Did the .said Rev. J. S. Mullan whom you have mentioned as~Being one of those who dissented, remain behind in St. Paul's Church at the time the Synod REC'OKD. 7n the Superior Court. No. 52. Depomtion of Rev. John Hugh Maokerrufl, produced by ReHpondoDta filed 7th July 1879. — continued. ■■« i n 1 > I 1 ^ 1 ; c ^dt^ ^ ^ ^^ ^ ^«^ /Aaj C^j^A't.Ji^s ii. ■' -0'. ■ ilM t :i RECORD. In the Superior Court, No. 52. Dcpositiou of Rev. John Hugh Mackerras, S reduced by Icspondcnts filed 7th July 1879. — continued. 248 loft to coiiHuiumatu the naul union, or ilid ho go to tlio Viotoria Hull and lako part in the union in answor to Iuh nanio ? A. 1 know tlio said J. S. Mullan appoarod in tho said Victoria Hull and answered to his name when it was called, because I was specially requested to make it very distinct. Q. He has been a minister connected with tho Presbyterian Church in Canada since ? A. Yos. Q. Were you present when tho articles of union, namely, thu preamble and basis of union and tiio rosohitions adopto 1 in connection therewith, were signed 10 in the Victoria Hall by tho modoratin's of the four (;hurch(!s \*rhich united on that occasion, namely, on the fifteenth of June, eighteen hundred and seventy-live, to form the Presbyterian Church in Canada ? A. I waa present. Q. Did you see the documents signed ? A. I did. Q Have you the originals of the .said articles and preamble, basis of union, and resolutions, here ? A. I have, and now protluce them. I identify the signature appended to the bottom thereof, " W. Snodgrass, D.D." and the words thereafter, " Principal 20 *' of Queen's University College, moderator of the Synod of tho Presbyterian " Church of Ciinada in comiection with the Church of Sco'^'-uid," as being the signature, and the whole of the said quoted words in the proper handwriting of the said Dr. Wmi. Snodgrass, who was the moderator at the time of the said Synod of the Presbyterian Church of Canada in connection with tho Church of Scotland. I saw him sign it and write all these words. The next signature appended at the bottom thereof is, " Win. Caven, D D." and the words Principal of Knox " College, and moderator of the General Assembly of the Canada Presbyterian " Church," and 1 say that the said signature " Wm. CaVeii," and the said quoted words are the signature and written by the said Wm. Cavon, who was the moder- ;jo iitor of tho General Assembly of tho Canada Presbyterian Church at the time, which was one of the said Churches which .so united. I identify next the sig- nature at the bottom thereof of '' Peter G. MacGregor," and the words, " mode- rator of the Synod of the Lower Provinces of B. N. America " ; the whole of these words are written by Peter G. MacGregor who was then the moderator of the Synod of one of the said Churches which formed the said union, called the " Synod of tho Lower Provinces of British North America." I identify next the signature " George Munro Grant," written at the bottom of said document, and tho words " moderator of the Synod of the Maritime Provinces in connection " with the Church of Scotland." The same is the signature, and these quoted words 40 were written by George Munro Grant who was then the moderator of the Synod of one of the said uniting Churches called the " Synod of the Maritime Provinces in connection with the Church of Scotland." Q. This document is the original of the preamble, w -: f union, and the resolutions attached thereto ? A. Yes, that is the original document on whicli the said four Churches united. A correct printed copy of the said preamble, basis, and resolutions, is to % 249 i)iiit and jd to e and igned 10 11 that ive, to union lied to incip'.il 20 /terian 11 g the ting of Synod otland. ded at Knox yterian quoted muder- 30 ; time, he sig- ' mode- whole erator ed the oxt the ut, and nection worda 40 Synod ovinces md the huvches ns, is to be lumid ut [);»ges I, "), imd (1 ol'tlio iniimti'.s of the Kii>t Ciem-riil Asunnbly of tlio RECORD. PreHbytorian Chin";!h inC/uiiada, filod in this chusl' a.s P<'titioncr'.s Exhibit " LL." — ~ Q. How long lias tiie Synod of the Presbyterian Church of Canada in con- t.^"/J*. nectitin with the Church of Scotland been in existence, thut is lo say, when waa Court.' its lirht S}'uod lu'ld ? A. In eightfen hundred and thirty-one. No. 62. Q. Do you know when sidd Synod was Grst so called, and how it obtained ^''?^"'''°" the name of the Presbyterian Church of Canada in connection with the Church of jr,i,n liuo-i, Sa)tland, that is to say who gave it its name ? Macker-ns, 10 A. It was the Synod. On the sevinth of June, eighteen hundred and thirty- produced by one, it was moved, seconded and carried unanimously that " This Convention of l^/^sponj'o"*^" " ministers and elders in connection with the Church o*' Scotland, representing jyjy ^y^g '• tluir respective congregations, do now form themselves into a Synod to be called — contUmeil. " the Synuil of the Presbyterian Church of Canada in connection with the (/liurch "of Scotland, leaving it to thi.' Venerable the Gmieral Assembly to.determine the " particular nature of that connection which shall subsist between this Synod and " the General As.stMnl)ly of the Church of Scotland." I now prodi'ce the said minute marked Respondents' Exhibits 3,3. The said minute is to be found on page 4 of the .aid book. 20 Q. Was the Presbyterian Church of Canada in connection with thj Church of Scotland a body corporate and politic, or was it an independent, voluntary as- sociation ? A, It was never a body corporate; it was an indepfvidont voluntary associa- tion. T';ie propriety of getting an act was frequently discussed, but it was never incorporated. Q. IIow was the Preshyteiian Church of Canada in connection with the Church of Scotland governed ? A. The question put to ministers at their ordination shows that. It was governed by Kirk-ses.- 250 SyrioJ is conipoHud oI' the uiuiuhLTs of the I'rt'.sbytorios. The Synod roll is iiuide up of Presbytery rolls. (Petitioner ohjeots to the witness stating the constitution of the difierent courts, the same Ijeing fixed by laws of the Synod. Objection reserved by parties). Q. IIow does the Synod govern the Church ? (Objected to as illegal, there being a written con.stitution, and as to the powers and authority of Synods the witness is not compete it to state the same verbally except from the minutes of the said (Jhureh. Objection reserved by parties). 10 A. They discuss matters, vote upon them, and the majority carries. Q. (kn you tell me what constitutes a (juorum of the said Synod, and point out the law regulating the same ? A. Fifteen, ol" whom at least eight must be ministers, '^'^he law regulating the same is to be found in the said miiuites of the yi-ar eighteen hundred and sixty-eight, page 4'.), section I, sub-section G, and reads as follows : " To consti- " tute a quorum of Synod thore nmst be present not fewer than fifteen members " of whom at least eight n)i!st be ministers." i^. Was the Uev. Robert Dobie, Petitioner, a member of Synod at the time when the said law with reference to a quorum was framed and adopted ? 20 A. lie was moderator of the said Synod. Q. Was that law ever repealed ? A. Never. Q. Was it always acti'd on during the time you were clerk ? A. Strictly. We had generally three sc.'derunts in the day and we never opened any one until we were siu'c we had liftoi'U j and on tin; night before the last day when we were fearful that we might be left without a quorum, we pledged fifteen mend)er3 to be sure and be there. Q. What do you call the last day ? A. We generally knew the night before if we would be able to close next ;ui day and the house was getting thin, and in order i.ot to be left without a (quorum we pledged a certain number to attend ; that was done repeatedly, and we never went on without a ((uorum. Q. Will you be kind enough to state the meaning of the words "in con- nection with the (Jhureh of Scotland," which ap[)ear in the name of the said Presbyterian Church of Canada in connection with the Church of Scotland, and specify also fully what was the nature of such connection, referring to whatever authority you have for your statements ? (Objected to as illegal. Objection reserved by parties). A. They are set forth in the Act of Independence found on pages 15 and 40 IG of the minutes of the Synod helil in September, eighteen hundred and forty- four. Q. What was this Act of Independence ? (Objected to as illegal, inasmuch as the said Act speaks for itself. Object'-m reserved by the parties.) A. An Act that was passed l)y the said Synod in order to assert its true posi- tion ami to exi)lain the meaning of the words in its title, " in connection with the (jhureh of Scotland." 10 30 luade foreiit id by to the u the iervcd 10 d, and dating 3d and conHti- Binbers le time 20 never jre the iim, we le next :ui iiuoruni never jin con- he Huid |ul, and [mtever 15 and 40 1 Ibrty- bject'on [le posi- )ii with In the Sitjicrior Court, No. 52. 261 Q, In it not true Ihjil every minister in ((inncetion with the .siiid Church IIKCORD thereafter, at tiie time ol' his inthiction to a charj^e, was re(iiiired by the hiw of the Church to adhere to or give Ids aasent to the said Dechiration of Inde- pendence ? A. Every miniflter or probationer was obliged to assent to it. Q. Can yoti show ti>e hiw ? A. It is in the close of the Act, on the 16th page. The said Act itself ^'[.''fj*^^^'"" declares so, and it is further declar d that this supreme and free jurisdiction is a johu HukU fundamental and essential part of the ccmstitution of this Syond. Miickcrras, 10 Q. This Act of ln(le[)endence was made a fundaintntal part of the conati- 1 ""oJuooJ by tution of the said (Jhuich, was it not? fnTTtll""*'* A. It was; it was sent down to Presbyteries inider the Barrier Act; and j„iy jy-jg we (ind on page 25 of the minutes of Synod of July, eighteen hundred and —continued. forty-hve, that no Presbytery objected to tlu- said Act, and accordingly the Synod passed the said Act into a standing law of the Church, and it has never been repealed. Q. Did the Haily having learned from the deputies that an impression " exists in Canada that the Church of Scotland regards the action of those cou- " nected with her in Canada in forming the union now consummated as an indi- " cation of disloyalty to the Pan-nt Church, assure the deputies that they enter- " tain no such idea, but on the contrary give full credit to the representations " which they have received fnmi the brethren on that subject." Q. Since the passing of said deliverance which you have just quoted by the General Assemlily of the Cluu'ch in Scotland since the consummation of the 40 said nnion, h;'s the attitudi' of the said Church of Scotland, or of its General Assemldy, changed, and have they eo-operated in the new state of things with reference to said United Church, the Presbyterian Church in Canada, just as they did before the said nnion ? A. Their attitudt^ has not changed and they have co-operated in the same way as before. For many years before the union I was Convener of the Com- mittee on Correspondence with the Colonial Committee, and I still correspond with them. I have signed and countersigned receipts just in the same capacity •It m i REUOllD. In the Superior Court. No. 52. Dt' position of llev. John Hugh Mackerrus, produced by Respondentji) filed 7th July 1879. — continued. 254 siuc'j the union as bclbiv. the union, nr.inely, as Convener of the Correspondence Committee. That is one way. They continue to send :ne money as they formerly did — grants of money for the same purposes for which thoy gave befo-e the union. They have also sent a deputy in the person of the Rev. George v7. Sprott. He appeared before the General Assembly at its recent meeting in Ottawa, and addressed the Assembly, among other things stating that the Church of Scotland wi.«hed that the union had been complete. I was present and heard him. Q. 1 see that it is stated in what is called the ^^.ct of Independence of eighteen huridred and forty-four that you have referred to, that the words in Hi the name of the said Church, to wit, " in connection with the Church of Scot- land," denote merely the connection of origin, identity of standards ami ministe- rial and church comnuinion with the said Church of Scotland in Scotland ; allow me to ask you if any change has occurred, or whether the standards of ministe- rial and church communion in the united Church are not the same as before ? A. Quite the same, I may say also the Presbyterian Church in Canada, by its polity, allows its congregations to call ministers in charges in the Church of Scotland, or ministers or missiimaries who have been connnissioned by the said Church of Scotland. Q. is it true, as stated by Mr. Brymner, a witness examined in this case 20 on the pare of the Petitioner, that by the preamble and bisis of union which you have already referred ij, the whole Conf- ssion of Faith, which was the Confes- sion of Faith of the Presbyterian Cl-uich of Canada in connection with the Church of Scotland, is not adopted by the Presbyterian Church in Canadii ? A. It is adopted in its fullness, as appears by the .said basis of union, the last clause of the second article of the basis of union being a tnere explanatory note. " It being distinctly understood that notliing contained in the aforesaid " Confession or Catechisms regarding the power and duty of the civil magistrate " shall be held to sanction any principles or views inconsistent with full liberty " of conscience in matters of religion." 30 Q. Was there anything different from that last clause held under the former regime, that is to say in the Presbyterian Church of Canada in connection with the Church of Scotland ? was it ever held that there was anything incon- sistent with liberty of conscience ? A. The Presbyterian Church of Canada in connection with the Church of Scotland have always entertained the view expressed in that explanatory note. Q. What relations did ministers in Canada, ordained and inducted by the Presbyterian Church of Canada in connection with the Church of Scotland, hold with reference to the Church of Scotland in Scotland, and how were ministers dealt with upon applying to be received into the Church of Scotland in Scotland ? 40 A. If they applied for admission to the Church of Scotland they were treated as ministers of Jdissenting Churches. At the time of the union in June, eighteen hundred and seventy-five, of the one hundred and seventeen ministers on the roll of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, sixty -seven were not ministers of the Church of Scotland in Scjtland. I quote from the principal Acts of the General Assembly of the Church of Scotland in Scotland for eighteen hundred 255 lonce nerly 9 the 50 v7. iig in t the resent nee of •d3 in 1" f S'>ot- iuistp- allow liniste- ■e? ida, by irch of le 8aid is case 20 ch you Confes- ith the ? on, the biatory foresiiid istrate liberty 30 er the nection incon- urch of note, by the 1, hold nisttTS t,tland ? 40 jy were nion in venteen ida ill ters ot of the hundred n; and sixty-six-, whi:h I now lioM in my hand atid produce, and which shows on page 61 thereof that Mr. John Darroch, a minister of the Presbyterian Churcli of Canada in connectiou with the Church of Scotland, was remitted to the Presbytery of Ghusgow to be taken on trial, and the following words appear in the 8!ud minutes with reference to him : " The Assemblj' called for the Report " of the ComiTjittee on n,pplieations of dissenting ministers and licentiates for " admission to the Church The Assembly ;ipproved of the *'' Report and in terms thereof authorized the Presbytery of Glasgow to take en " trial Mr. John Dan-och, formerlv a nunister of the Presb3'terian Church of RECORD. In the Siwerior donrt. No. 52. Deposition of Rev. John Hugh MiiciccrraH, 10 '' C'-nada in eonni'Cti)n with the Cnurcli of Scotland, and having satisfied then- produced by Re.spondente filed 7th July 1870. — continued. "selves of his qualifications, u; a-Aiiiit 1 im as a licentiate of the Church ; and '' further authorize the P. sby^-'Vy of '^i-^ar .0 ..ke on trial Mr. Smith Hutehi- " son, formerly an ordainer' ,.';.idijr 01 the English Baptist Ciiurch, and if they " are satisfied after such exanmiation as to his qualifii-utions and attainments, " then to receive h'Mi as a licentiate of this Church." This shows that a minister of the Presbyterian Church of Canada in (connection with the Church of Scotland was placed on the same footing as a minister of the English Baptist Church, and from being an ordained minister of the Presbyterian Church of Canada in connec- tion with the Church of Scotland, was treated as a student of divinity applying for 20 license. Then there are other cases of a later date. I could produce many of them ; I will produce one or two. In " The Principal Ac.i of the General Assembly of the Church of Scotland" for eighteen hundred and seventy-five, page 49, I quote another instance : " That an application of the Rev. Robert Laing, B.A., Mont- " treal for admission to the Churcli of Scotland be remitted to the Committee on " the admission of dissenting ministers to the Church." At the said session of the General Assembly several ministers and licentiates of dissenting Churches were received, and the finding in regard to these was similar to that in regard to Rev. Thomas Gillespie Smith and the Rev. Robert Laing, ministers of the Pres- byterian f 'hnrch of Canada in connection with the Church of Scotland. I could 30 refer to other instances, but that was the practice of the Church of Scotland. Q. According to the law and custom of the Church had the said Synod of the Presbyterian Church of Canada in connection with the Church of Scotland a right to adjourn the session of Synod from one place to another ?) (Objected as illegal. Objection ret^erved by the parties. A. According to consuetudinary law or practice the Synod had a right to adjourn from place to place, but they could not meet again without consti- tuting. Q. What do you call constituting ? A. Opening the meeting with prayer. Now that practice you will find 40 anywhere in the minutes of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, or the Acts and Proceedings of the Gen- eral Assembly of the Church of Scotland, in Scotland. If they adjourned for an hour or two they would have to constitute when they met. Q. After the adjournment of said Synod to the Victoria Hall, or Skating Rink, did the said Synod constitute when it met in the Victoria Hall ? A. They had to constitute and they did constitute. Q. Was it with prayer ? A. Certainly with prayer. 256 mm *;■■ RECORD. In the Superior Court. No. 52. Deposition of Rev. Jolin Hugh Mackcrras, produced by Respondents filed 7th July 1879. — continued. Q. Did ministers oC the Presbyterian Church of Ciiniidii in connection with the Cliurch of Scotland, U-aving their charges here and settling in Scothmd, retain their allowances, or the reverse, from the Towporali ties' Board. A. They did not retain their adowances, ns is shown in the (;ase of the Rev. John Whyte, no^" of Queen's Ferry, and th*^ Rev. John Cameron, new of Dunoon. I mention these two cases because they occurred before the union ; and there have been several others since, Q. What was implied in the custom which prevailed in the Presbyterian Church of Canada in connection with the Church of Scotland of asking a stran- ger, not a member of Synod, to sit and deliberate in the Synod ? lo A. It was a mere matter of courtesy. He had no right to vote. A cor- responding member from another Synod was a member and had all the privi- leges of a member, and could vote. The only exception was in the ease of the Rev George M. Grant, who was virtually a corresponding member from the Synod of Nova Scotia, although lu) had not a commission. He took part in moving a motion containing a vote of thanks for hospitality received by the Synod. Q. What was the law of the Presbyterian Church of Canada in connection with the Church of Scotland with reference to the insertion of Presbytery rolls in the miiuites of Synod ? (Objected to as illegal. Objection reserved by consent of psirties.) 20 A. The invariable practice for forty years; before the union was to iasert the Presbytery rolls as constituting the Synod roll. I quote from the book of Polity, minutes of Synod, eighteen hundred and sixty -eight, page 49, paragraph 3, under "Synod": "The roll of Synod consists of tne attested rolls of the " several Presbyteries. The rolls of Presbyteries are, in making up the Synod " roll, placed in the order of seniority in the formation of the Presl»yteries." Q. These rolls should show the different congregations in connection with the Synod, should they not ? A. Yes, and ministers and representative elders. Q. Are not such rolls always called for ? ;5o A. Certainly ; we cannot constitute a Synod roll until we have these, and they are always read over? Q. Reference has been made by a witness examined in tiiis cause to certain parties who left the Presl)yterian Church of Canada in connection with the Church of Scotland in the year eighteen huudred and forty-four; have you a knowledge of the circumstances of such departure, and will you state whether those who then seceded claimed, after leaving, to he the Presbyterian Church of Canada in con- nection with the Church of Scotland? A. Well, I h.ave a knowledge from my reading the records of the Churches — I was a boy at the time — and thoy did not claim to be the Presbyterian Church 40 of Canada in connection with the Churcdi of Scotland. Q. You have .^een the Digest of the Minutes of the Presbyterian Church of Canada, which is filed in this case, marked " LL " ? A. Yes. Q. From looking --d that, can you tell me whether they claimed to be such Church or whether they did not actually secede and declare they had no connec- tion with the Presbyterian Church of Canada in connection with the Church of Scotland after they had left it? with ilaiid, if tho :w of ; and terian stran- A. cor- privi- of the Synod ving 11 iiection i^y rollB 10 20 i iasert book of ragraph i of the ft Synod with :5o ;se, and certain Church )wledge ho then in con- Ihurches Church 40 lurch of be such connec- In the Superior Court. No. 52. hurt. ■h of 257 A. Page 5 of " LTi " hIiowh that tliey could no longe. hold office in the RECORD. Prosbyti'rian Cliurch of Canada in connection with the Church of Scotland. They did not claim to be tiie Presbyterian Church of Canada in connection with the Church of Scotliintl. Q. Will you look at pages 411 and 412 of the said Digest " LL," and state why the said niinist -rs who lial left thi? Synoil of the Presbyterian Church of Oanaila in connection with the Church of Scotland were refused their petition for ^"pos'^'o" a share of the proceeds of the Clergy R serves which had been promised to the j^j^q jjy |j Synod of the said Presbyteri;in Church of Canada in connection with the Church Mackenus, 10 of Sc '.land ? produced by A. This was the answer from the Government, because of the new position ^!j^^?u°°*^^ in which the Synod stood, that is, that they ha 1 secede 1 from the Presbyterian j^\y iqiq Church of Canada in connection with the Church of Scotland. — continued. Q. Does not the said Digest of Minutes of the Presbyterian Church of Can ida show that suhseipientiy the said Presbyterian Church of Canada, which was formed by the sail seccders, was off'ired a share of the proceeds of the said Clergy Reserves ? A. Yes, as appears at page 413, and they declined to receive any share. Q. Are you aware whether or not other brunches of the Protestant clergy 20 received any share of the proceeds of the said Clergy Reserves besides the Church of England and the Presbyterian Church of Canada in connection with the Church of Scotland ? A. Three Presbyterian ministers, Messrs. Smart, iJoyd and Rogers, received some, and also the Wi'sleyan Methodist Church. Q. Who wi-re Messrs. Smart, Boyd and Rogers ? A. They were members of the old United Synod of Upper Canada, and they received as their commutation two thousand two hundred and forty pounds and eli'ven shillings currency, that is, the three ministers aforesaid. The Wes- leyan Methodist body received as their commutation nine thousand seven hun- 30 dred and sixty-eight pounds, eleven shillings. Q. So that is was simply because the said several ministers who commuted their claims constituted instances of a Protestant clergy that they received any share of the said Clergy Reserve fund, or were allowed to commute under the Act? A. Yes, as a Protestant clergy, to whom the faith of the Crown was pledged. Q. What was the interest in the fund of the Rev. Robert Dobie at the time of the union, and how much was he entitled to per animm as his .allow- ance ? A. He had an interest during life, or incumbency. He had a right during 40 life, or incumbency, to one hundred and twelve pounds, ten shillings, a year fi'om the Temporalities Fund. That is shown in the minutes of Synod of the Presby- terian Church of Canada in connection with the Church of Scotland for eighteen hundred and fifty-six, page 23. I quote : *' The Synod further agreed, and "declared that the guaianteed salary of one hiuidred ami twelve pounds, ten *' shillings, shall, upon the death of any one of the recipients, revert to the '< General Fund." Q. This claim of one hundred and twelve pounds, ten shillings, has been mm :.I3 258 RECOllD. In the Snpfrior Court. No. 52. Doposition of Rev. John Hugli Mnckcrrns, produced by Respondents filed 7th July 1879. — continued. giiiirantt'ed t(» Mr. Dobie dming life by the rtiiicinliug Atits of lh<' Locil Ijegi.sla- turcs which yon huve alivady reforred to ? A. It has been so giiarantood. Q. Notv»'ith.st:ui(liiig the fact that li(> left the Synt)d of tho P,'e.sbyti'ri(ui Church of Canada in connection with the Ciuircli of Scotland on the fifteenth of June, eighteen hinidreil ami scvonty-five? A. NotwitliHtanding the fiict that he seceded from the Synod of tl e Pres- byterian Chnroii of Canada in connection with tiie Chnrch of Scothind on the fifteenth of Jun(>, eighteen hundred and .seventy-five. Q. WaH it not at the .suggt stion of the Synod itself that Mr. Dobie's stipend lo was guarmitced to him during life, whether he reniaiiu-d in the union or out of it? A. Th^' Synod of it.s own motion, provided that the allowfince.s from the Temporalities Fund should be as secure aftiM' union as before, whether the minis- ters remained in or out of the union. Q. Ciin you state how many congregations there were belonging to the Presbyterian Church of Canada in connection with the Church of Scotland and reporting to its Synod in June, eighteen hundred and seventy-five, the date of the said union ? A, Ihere were one hundred and twelve settled charges and twenty-two vacancies, makinu; in all one hundred and tliirtv-four. While there were one 20 hundred and twelve settled charges there were one hundred nnd seventeen minis- ters, including the profe.s.sor.s of Queen's College, of whom there were five, Q. Can you state how many of these congregations remained out of the union ? A. Some remained out as u whole, others in part. There were eight, at any rate. I do not include the ca.se of a minority of a congregation, such as Wil- liamstown, dissenting from the vote of the majority of the congregation to enter into the union. Q. Why not ? A. iiecause the majority of a congregation decides. Acctirding to the Acts 3(i of P.arliainent the majority at a regular meeting were to decide whether to re- main in the union or not, and I have given these as to my own knowledge, I ex- cl ide cases where there are minorities, and I have given as a specimen Williams- town. The names of such congregations which did not go into the; said union are as follows : Milton, Thorah, Beechridge, Lochiel ; as far as I understand these are out as a whole. Then there are otiiers that have been in Law, or at least have gone out by a majority, for instanc<' Liincaster, and St. Andrew's, Montreal. William.sburg is in law ju.^t now as to whether they are in or out of the union. I believe Cote St. George is in the same position. Mr. Burnet had tho minority of the London congregation. Eldon is still in law. 40 Q. How many ministers, which were on the roll of the Presbyterian Church of Canada in connecticm with the Church of Scotland at the time of the said union, have not joined the said united church ? A. There were ten. The further examination of this witness is adjourned. r ■. 269 irislii- tiTinn .th of Pres- (II tlie tipcnd 10 of it? >m tho minis- to the lid and iate of ity-two ere one 2ti 1 minis- ' of the ight, at as Wil- to enter ,he Acts 30 'r to re- fe, I ex- illiams- d union id those at least lout real, union, minority 4(1 byterian le of the And on this eiglitli day of Jnly,()f tlie year aforesaid, the said witness, John Hugh Mackerras, re-nppe;ired nnd continued his evidence a« follows : — Q. Thin do I understand you to s.iy that in the Province of Quebec the only ininist'Tjs who refused to enti-r into the said union were tlie Rev. Gavin Lang, of Montreal, the Rev. John McDonald, of Beechridge, luid the Rev. Wm. Simpson, of Lachine? A, These were the otdy ones. Q. Had the Rev. Gavin liUng, prior to the fifteenth of June, eighteen hundred nnd seventy-live, any elfiim.s on the said Tem[)oralities' Fund ? did he 10 ever receive any moneys therefrom, or was he entitled to receive any? A. He had no claim; lie had oidy ;i prospective interest. He had no pre- sent claim. Q. That is, you can say that if he v/aited long enough for the men who were on the li.st to die awny, he would get placed on the list ? A. Certainly. He was not one of the commuting ministers ? He was not. W;is the Rev. John McDonald of Beechridge a commuting minister? No. Then the Rev. Win. Simpson was the only one of the three in the Pro- vince; of Quebec who remained out of the union, who was an original commuting minister and received of the proceeds of the said Clergy Reserves? A, Yes. Q. Did tho congregation of the Rev. Mr, Simpson, of Lachine, remain out of the union with him? A. If they did remain out it was only a very short time. They are in the union now. Q. What became of the Rev. Mr Simp.son ? is he at Lachine still ? A. I underst.uid he is a retired minister without a congregation. Q. Can you state in the f^rovinceof Ontario how many ministers with their RECORD. In the Superior Court. No. 52. Deposition of Rev. John Hugh Mackerras, produced by Respondents filed 7th July 187D. —continited. 20 A. Q. A. Q. \w entire congregations remained out of the union ? A. Three, as far as my knowledge goes, remained out with all their con- gregations. Q. How many in Ontario remained out of the union whose congregations went into the union by vote of the majority ? A. Two, as far as I can recollect. Q. Can you give me the names of those ministers you have just specified in Ontario who did not join in the said union? A. The Rev. RobiM-t Dobie, tln' Petitioner, the Rev. David Watson, Thorah, 40 and, ns far as I can understand, Rev. Neil Brodie of Lochiel. These are the three, as 1 understmid, that remained out without their congregations breaking. The Rev. Robert Burnet remained out and his congregation v:ent bodily into the union. A majority of the Rev, Peter Watson's congregation went into the union, as wns proved in the lawsuit. There lU'e the cases of Eldon and North Williamsburg which, I understand, are in litigation in Ontario, and I can- not Sfiy exactly how they, stand. There is the congregation also of C&te St. George, in Lower Canada, which, I believe, is also in law as to whether it is in or out of the union. i in 'if I ^:' ki'i'- jHjj ;! 'I , RECORD. In the Superior Court, No 52. Deposition of Rev. Jolin JIusli Mnckcrras, produced by Respondents filed 7th July 1879. — continued. 260 Q. 01' thcHC nmnoH that you hiive iiiontioiu'd, Dt)l)ic, Watson, Mmdic, Miir- net and WatHon, how many are original commuting ministers who comnuitod their said claims? A, B'ive. Q. Which are they ? A. The Rev. Robert Dohic, the Rev. Robert Rurnef, and th(; Rev. David Watson, in Ont.irio. The Rev. John Davidson is also an original commuting minister, and the Rev. Thomas McPhi'r.sou )f Lancasti'r. Q. Will you ))e kind enough to state how many out of the original seventy- three commuting ministers, survive? 10 A, Thirty. Q. And out of these thirty it appears from what you have stated that only six have refused to enter the said union ? A. There are only six. Q, Is there anyone to your knowledge e.Kcopt the Petitioner, Dobie, who h as a lawsuit now pending about the said Temporaliti<*s' Fund, or the administration of said Board ? A. None, as far as T am aware. Q, Previous to the union in eighteen hundred and seventy-five, ilid the said Presbvterinn Church of Cainida in connection with the Church of Scotland 20 embrace more than, or extevid over more than, the two Provinces of Ontario and Quebec ? A. No, it was limited to those two Provinces. Q. So that all the mijiisters in active service in the said Church prior to the lifteenth of June, eighteen hundred and seventy-five, and all the congrega- tions connected therewith, must have been in either of those two Provinces, and were, as a matter of fact ? A, They were. Q. Now, as to the present members of the Board, Respondents, how many of its members have refused to enter into the union ? ho A. Two, the Rev. Gavin Lang and Sir Hugh Allan ; they both live in the city of Montreal, in the Province of Quebec. Q. Was there any congregation appearing on the roll of Synod in connec- tion with the Church at Collingwood, previous to the fifteenth of June, eighteen hundred and seventy-five ? A, There was not. Q. Did the Synod of the said Presbyterian Church of Canada in connection with the Church, of Scotland exerci.se any control over any other fund or property besides that of the Board, Respondents ? A. They dicj. 40 Q, Specify, and answer fully? A. They exercised contnd over the Ministers' Widows' and Orphans' Fund of the said Church, and also in regard to the sale of congregational property. I cannot say anything about the law of Lower Canada, but in Upper Canada there were several congregations that wished to sell a part of their property or the whole of it, and applied to the Synod for leave, and the leave craved was granted. I can give you two instances, one from page 25 of the minutes of the said Synod 2()1 TVir- lUtod )iivitl nting ^enty- 10 , only lio h as -ration lid the ;otliind 20 rio and prior to ngroga- ;es, and many in the HO connec- 'ighteen lincction »roperty 40 i\H Fund perty. 1 da there ly or the I granted. Id Synod I'or ciiihtti'ii liundrcd ;ind lilt y-srvi'ii. wluin iifrniisfion wns fiivcii to the congi'cfj^a- UKt'OlU). tion of St. Andrew's ("hiirdi, Darlington, to .-ell an acre and a (inarterof Innd and devote the prod'cds to tlie erection of a manse. Tliere are other caHeH, and here „ " '*." i« one. On page lOol" the mimites of tlie said Synod of eighteen hundred and (lourt. Hoventy-oiie, simihu* U'ave wwx granted to the eongrcg ition of Kant Wilhama. The Synod claimed to ileal not merely with spiiitnalitics hut with temi)oralitieH; No. 52. and the Synod adopted a model eoiistitution for congregatioiiH, and also a model ^ pP"'*"^'"" deed for holding the |)ro|)<'ity of eongregation.s. j„l,„ |i„„|, y. Will yon be kind enough to point out in the minutes of Synod the Mackcrniw, 1(1 model constitution which you say it adopted with ref. Q. What other function did the said Synod exercise ? 2(1 A. It hail full legislative power ; it was the sui)reme court — there was no appeal beyond ; in fact it was just the voice of tiie Church, and the court of last resort. There was no apjjcal from it. Q. How long was the union in (piestion in this cause di.scuascd in the said Synod before any opposition was made by any or.e to tin' said union ? A. The negotiations Ix^gan in eightei'ii hundrctl and seventy, and there was no oi)po8ition to anything l)ut details until eightei'n hundred and seventy. four, in June. Q. Call you point out the (irst action upon which the Rev. Robert Dobie, Petitioner in this cause, entered a formal dissent respecting said union, or any- ;{0 thing relating thereto? A. At page 14 of the .said minutes, November fifth, eighteen himdred and seventy-four, is his first dissent in regard to union. Q. Were the other three Presbyterian bodies who joined with the Presby- terian Church of Canadein connection with the Church of Scotland to form said union, also independent, voluntary associations as well as the Presbyterian Church of Canada in connection with the Church of Scotland ? A. They were on precisely the same footing. Q. Would you kindly state thi; object which these four bodies had in view before the said union was ellected ? 40 A. To pnmiote the cause of Christ throughout the length and breadth of the land ; to promote the spiritual interests of the inhabitants of the several Provinces. Q. And, I suppose, Presbyterian doctrines and principles? A. Of cour.sc, through that. Q. What object had they in uniting ? A. To further religious ends all the better. HKCOKI). /n fhr Siijicrinr Court, No. r»2. Prpoftitioii of |{pv. Jolin IFu^h MackorriiM, Jirn*«' Ix'ttiT us U llllitl>(l l-xly tllllMHH four H»'i>niJit(' and diHtiiK't IkhIIos? .1. Tlicy (li'l. One way I'spcciiilly — iiistivul of having two or thrco ntrug- gling I'ongrt'gatioMH in on(> i>l)u'(> it was Iio|m>i| tlmt tliiso might ntiitc and hfconu; one H('ir-Nni»|i()i tinjr, strong cougrt'giit ion ; uiul also that wo might thf hotter [)ro- sociito HoMio and Foreign Missiomiry o|M'rati()ns. (J. Did the said Synnd of the Prcshytoi iaii tJhnich oi'(j!ina(hi in connection with the ('hurch of S<'otland at any time [irovioiis to the said liftoonth of.Inne, »'ighto''n hiindi'i'd mul M'venty-!!V<', int'oi|)(iiato with itself tlu? ministers of any otix'r (/hnrch or (Jhuiches, indi 'u liy or as a hody V 1<» A. They incorporiited tin, at '^ors of the United Synod of Upper Canada. Q. Is there any nderenre to l»».i in the minutes? A. There is a refereiUH!, which will he found at puge 13 of the minutes of the said Synod for eighteen himdred and forty. There are the names of eight(?on ministers who were received into the siiil I'r^ sbyteiian (Jlinreh of (Janada in con- nection with the Cliurch of Seolhmd and placed on the rolls of the PreshyterioH within whoso lK)undw their congregations weri' situated. (^. Are you aware whetlnror not the protest which has been (lied hy the Petitioner in this cause, htatcij to have been served upon the said Svnod on the fifteenth of June, eighteen hinidred and sevoutv-live, hy the ministry of C. Cush- 20 ing, notary public, was read in th(? presence of the Synod ? A. It was not read. Q. \ou, bt'ing clerk on that occasion, received it and would know? A. The modi-rator received it, and I would have read it, but it was not read. It was qniti; a lengthy document. Q. Would you kindly inform nv whether a person who has I>een appointo'l as a licentiate of the Clhurch in Scotlaad. holds the .suiie position as an ordained minister, or is such man, strictly speaking, a minister at all ? A. lie is only a licentiate, he is not a minister. There are two terms that are applicable to such a person's position ; he is called a licentiate, as a man licensed 30 to i)ri ach the Clospel ; he is also called a probationer tor the holy ministry, nsono who is on probation, who is on trial for that sacred office. (J And while he is exercising the functi(ms of a licentiate what duties can he undertake or do ? A. He can preach, but he cannot administer the sacraments. Q. Sul)se(juently he has to be ordained as a nunister ? A. lie has to be ordained before hi; can be inducted into a cliarg(i. Q. And then after that comes what is called induction, when a man is placed over a congregation ? A. Yes ; it may be at the same time as the ordination, or the ordination 40 may precede it. Q. According to the polity of the Presbyterian Church of Canada in connec- tion with the Church of Scotland, I undorstan l*resl)yttriiin (!!uirch of Canada in connection with the (Jhurch ol' Scotland to the (General Asst>rnblv ot the (Jinircb of Scotland, occur the following worls : — " Your Venerable Assembly " knows that there are iminy external relations and interests of a (Jhurch wliich " may be best watched over by a g< iieial court, and that amongst these the most " interesting to the Churches nu'ler the juris<)ietion of the Synod is their right to '_'0''ashare in the lands set apart for the niaintcMiance of a Protestant Clergy." What leil to the assembling of the convention -f ministers and eldi-rs which re- sulted in the formation of the' Synod ol' the I'resbyterian Church of Canada in connection with the Church of Scotland, was the des[)atch of Sir Ccorge Murray to Sir John (/oll)orne, Lieutenaiit-Clovernor of Upper Canada. Sir Oeorge Murray, I believe, wa.s Secretary of State for the Colonies. The despatch was suggesting the desirableness of the formation of a Synod, or Presbytery, embracing all Pres- byterian ministers in the Province without distinction, in order to facilitate the payment to i-ertain ministers by the GovernnuMit of their allowances, as ap])ears at pages 18 and 14 of the minutes of the said Synod, eighteen hundred and thirty- 30 one, and contained in said Exhibit 3'>. Q. Were you not a delegate from the Presbyterian (Jhurch of Canada in connection with the Church of Scotland to the General As.sembly of the Church of Scotland in Scotland, in the year (Eighteen hundred and sevonty-five, when they passed a resolution which you have referred to alreauy ? A. I was. Q. Can you state to what extent the saiil Temporalities Fund, managed by the Board. Respondents, has been reliex'ed since the said union by the death or removal of parties having chims upon it? A. To the extent of the annual funi of three thousand seven hundred nnd 40 fifty dollars, which capitalized at six per cent, represents sixty -two thousand five hundred dollars. Oros8-Exainined withonl waiver of objections. Q. You stated that the Government dealt through the Synod with regard to the commutation of the ('lergy Reserves, and not through individuals; is it not a fact that isich individual connnulor was obliged, and did in fact give a jMJwer of attorney to Ur. CooU to represent tim in the matter V A. Yes. RKCOKI), In the Supfrior Court. No. ft2. Deposition of \U'V. •folin lUmh iMncktrniH, prodaccii Uy llcfipondonts filed 7th •July 1H7!>. — continued. « I • i 1 I RECOill). In the Superior Vourl. No. 52. Deposition of Uev. ilolin llu^li Mackornis. produced by Kospondcnts filed 7th July 1S79. — continued. 264 Q. What, tlu'ii. doyoM mean by saying that llie Govi'inment dealt entirely Lironj;!! the Svnod, and not with individuals ? A. Ik'ciuis(! indiviihials applied to the Goveriunent to be dealt with directly, and they were refused; and I ran give you two instances — Rev. Win. Johnson, of Salttleet, and the Rev. llaniilton Gibson, of Gait. (Ji. Did not the Goveininent deal with Dr. (]ook as representing the differ- ent individual coinnuitors ? A. They did; what I said in my examination-in-chief wns that the Gov- ernment commuttd with individuals through the Synod. Q. Would ;uiy resolution of Synod have been sufficient of itself for the lo Government to have acted ui)on towards the individual commntors in regard to this fund, apart from the ])()wer of attorney which each individual gave? A. No, a povver ol attorney was necessary, and the Synod appointed Dr. Cook as the attorney. Q. And the individual members, coinnuitors, accepted Dr. Cook's nomina- tion to be their representative ? A. Yes, and they could not have commuted through any other person. Q. How comes it that the page marked '^ A" in the book filed by the Peti- tioner as " BBB," and in the minutes of Synod of eighteen hundred and seventy- iive, of the Pn-sbyterian Church of Canada in connection with the Church of 20 Scotland, is inserted after the Index? A. It ought not to be there. I have stated in my examination-in-chief that it should come after page 40. It happen i from an inadvertence. I was out of the country for a year. I arrived here on the morning of the second day of the Synod, remained ln're for the Synod and the first General Assembly of the Presbyteriiin Cluirch in Canada, went on i\\) to Kingston, but staid only a ^ew hours, as 1 had no 1'',^;,-,^ there at the time and my family were in Peterb(m)ugh. My only child I had not seen lor a year, find I pressed on. Then from Peter- borough I sent the manuscri|)t to the printer, at Kingston, of these minutes of Synod, and the minutes of the (leneral Assembly to the printers at Toronto. I no had to do both, and I had given directions to hurry on with the work, a'Ml the printer passed on. and then it was printed just afterwards. That is the expla- nation. 1 did not return to Kingston until October. IJl. I understand you to say it was part of the written minutes you had sent to th" printer ? A. Yes, but not in time to come after page 40. He went right on. Q. Rut did you send the contents on page 2 in manuscript to the printer at the same time that you sent the rest of the h.iiiutes of the year eighteen hundred and seventy-five ? A. No; I sent the minutes iji piecemeal as I wrote on. That is the way I 40 always do if I am away from Kingston. Q. Did you send the minutes which are on page " A " separate by themselves ? A. Yes. Q. The rest of the book had been printed at that time, and consequently th(i printer liad to put it in as a fly-leaf at the end ? A. The piinter did not put it in at all. It was printed separate on a fly- sheet, and any man could put it in where it ought to be placed. irt'ly ictly, 11 sou, liiYcr- Gov- ;)r tllO 10 ai'd to ed Dr. ominix- on. le Peti- 2venty- lurcli of 20 in-chief I was nid day ly of the jorough. \ Poter- lUites of onto. I :ii u'ul the 10 expla- voii bi'.il pv Oi: inter jlltOCM ho way ar ate by luqnent on a 265 Q. But Villi ai<' in posHcsHion, I siippoHO. of a liook of your own, showing RECORD. tho printed ininutcs of the Presbyterian Church of Camida in connection with the Church of Scothind for the year eighteen hundred and seventy-five, are you not ? A. Certiunly. Q. Then where does tliis leaf A appear on your printed copy ? In the Superior Court. No. 62. Deposition A. On looking at the printed minutes which I have, the said minutes on ^''Fs'""" page A iippear after piige 40. I may idso add that I am governed only by the joj,„ iju„ij written record, which I produce ? Mackerms, 10 Q. Were the minutes on page A issued with the ordinary minutes, or were produced by they issued separately ? &7th'"^ A. I have nothing to do with the issuing of the printed minutes. When jyjy 1379 I am in Kingston I sometimes ask the printer how he is getting on ; but 1 was — continued. three montiis away from Kingston, withoat returning to it. Q. Will you pleiise explain how it is that the minutes which appear on })age A of the book •' IJHB " (iled by the Petitioner, when inserted in the book which you have in your possession, of the said printed minutes, after page 40, contains no page number, whereas tli«' next page number is the first page of the meraoranda, and is the [nige numbered 41 ? 20 A. Well, the printer has printed the memoranda before he printed the minutes which are on page A of the said book " BBB." Q. And when you got your book bound, you put it in before the memo- randa, which is the proper nlace, according to your opinion ? A. Yes. Q. The minutes on page A in the printed book of the original miuiites refer to the transactions of the Skating Rink in Montreal, on the fifteenth of June, eighteen hundred and seventy-five? A. Yes, all that is there refer to it. Q. According to the rules and procedure in the Presbyterian Church of 80 Canada in connection with the Church of Scotland, in what form are motions all'ecting the interest of the Church generally brought before the Synod ? (Objected to as illegal, as not pleaded, as no way in issue, and as not arising out of the examination-in-chief. Objection reserved by the parties). A. " Business may be brought before it by bills, overtures, petitions, " memorials, references, complaints, appeals, or other documents." I quote from minutes of the said Synod, eighteen hunilred and sixty-eight, page 49, under the head of "Synod," "II," "2." Q. Was the rule of the Synod up to the IGtli of June, eighteen hundred and seventy-live, to be found on page 35 of the minutes of eighteen hundred and 40 fifty-nine, and which reads as follows : "The only way in which any public act " or stamling order may be ciMnpeteiitly modified or susperuled shall be by the " introduction of an overture or petition through the Committee on Bills and "' Overtures, which overture or petition must detail fully the circumstances in " which and the reasons for which any modification of the terms or temporary " suspension of the operation of any public act or standing order is required" — in force from the said meeting of Synod of eighteen hundred and fifty-nine up to the said date of union ? jl 'i I KEC'OHD. In the Superior Viiurt, No. 52. Deposition of Hev. Joiin Hufjh Mackernis, produced by Respondents filed 7th July 1879. — continued. 266 (01)jt_'ctt'cl to as illegal. irroU'vant to tlic issues, and not arising out of the examinatiou-in-chiei". Ol)j(>ction reserved by the parties). A. Tiieso standing orders, I think, were not repealed. Q. In what form did the rpiestion of union of the ditVereiit Presbyterian bodies come before the Synod of the Presbyterian (.'luireh of Canada in eonnee- tion with the (Jhnrch of Scotland, yon having stated in yoin* examination-in-chief that it came before the Synod in eighteen hnndred and seventy ? (Objected to, tlv.' form in which the question of iniion came before the Pres- byterian bodies not l>eing pleaded nor attacked in the issues raised in this (;anse, and also as illegal and not arising from the examination-in-chief. Objection re- 10 served by the parties). A. It came before the Synod in two documents, the one a communication frovii the Rev. Dr. Ormiston. moderator of the General Assembly of the Canada Presbyterian Church, to the Rev. Ur. Jenkins, mode ,'.tor of the Synod of the Presliyterian Chureh of Canada in connection with the Church of Scotland. That was the one document, which is to he found on page 31 of the minutes of the said Synod, eighteen lunidred and seventy. The other was an overture sub- scribed i)y member.s of the congregation of Lindsay, referred to on page 37 of the minutes oi' said Synod of eighteen huiuhvd and seventy. Q. What was > witii the overture you last referred to ? 20 A. '• x\s a coni tee has already been appointed to meet .similar committees '- that may be ciiosen l)y the other sections of Presbyt(M'ianism in the Dominion '' for the pur|)ose of considering the whole subject of union," the Synod resolveil that further action o\\ the overture was unnecessary. This appears on page 37, eighteen hundred and seventy. Q. Is not the next reference to the said union to be found on page 114 of the Synod minutes of eighteen hundred and seventy -one. being the minutes of a Joint Committee, of which the following is an extract : "Extract, Minutes of the •' Supreme^ Courts of the various Churches api ointing committees were read, as •' also the letter of the Rev. Dr. Ormiston, of Hamilton, on the ground of which, :?(i " and of the sentiments expressed therein, the said action of these Churches was ^' taken " ? (Object( d to, the form in which the question of union came before the Pres- byterian bodies not being pleaded nor attacked in the i.ssues raised in this cause, and also as illegal, and not arising out of the exainination-iu-chief. Objection reserved by the parties.) A. That is not tlie next reference; that is a mere appendix. Th^re arc references on pages 26, 27 and 31. (^. But is not the one I have referred to the next reference in order of date — the report of the committee ? 40 A. Yes, but that is a report that was submitted to the Synod. Q. Coidd you tell us how many constituent members of Synod of the Presbyterian Church of Canada in CDunection with the ('hurch of Scotland, there were altogether on the fifth of November, eighteen hiuidred and seventy- four ? A. One hundred and fifteen ministers and one hundred and seventeen elders. 267 lu« inn lOC- lief ros- iise, re- in tion Hilda f the riKvt I' the sub- if the 2(» littcos liiiiDn ;()Iv(m\ go 37, 111 of s of a of the Iwhich, :^'i erf was c Pres- CllUSP, iection ^re arc i-dor of 4(t of tho lotlivnd, livcnty- / oil teen <^. Mow many cniins were there in (lie !s:iid Church cntitUid to he rc'i)r('sentt'd in the Syno'l at the time? A. One hniidred and twenty -three, that is to say, pastoral charges, whicli might embrace one or mor<* congregations each. V. How many ministers iind elders, nieml)ers of Synod, voted on the reso- hitions of Mr. Gordon, found on page 13 of the minutes of eighteen Inmdred and seventy-four, ndating to tiie consummation of iniion? (Ohjet'ti'(l to iis illegal, not in issue, and not arising out of the exiimination- in-chief. Objection reserved by tbo parties,) in A. P^igiity-five voted. 1 can make no distinction as to the respective num- bers of ministers and elders. Q. How many voted in favor of the said motion and how many against? A. Sixty-eight for, and seventeen against. Q. Accorfling to that there would be one Innidred and thirty-seven mem- bers of Synod who weie not present and who did not vote at fill on the resolu- tion ? (Objected to as illegal, not in issue, and not arising out of the examination- in-chief. Objeetion reserved by the parties.) A. Yes. The proportion of elders who attend is generally small ; as a rule, 2n I should say it wouhl be ai>out one-third. Q. How many <"ongregations did the vote in favor of saif. Objection reserved by the parties.) A. 1 could not say. Each congregation or pastoral charge is represented by one minister and one representative . Can you state how many members of Synod were present at the passing of the resolution to be tbund on page 35 of thi. minutes of eighteen hundred and seventy-five ? 40 yl. 1 could not. • Q. Coulil yon give me the largest number that at any oi>e time attended that sederunt ? A. The heads were not counted in regard to the motion to be found on l)age 35, the record resi)eeting which states that there was an overwhelming majority. In regard to the motions recorded on pages 28 and 20, the members present appear to have been ninety-nine. Ninety voted for a motion to proceed to the consummation of the union, and instruct the moderator to sign the articles IIKCORI). In the Superior Court. No. f)2. Deposition of Rev. John Hugh Mil' kcrras, produced by Respondents filed 7th July 1879. — continued. 268 i llECORD. Jn the Superior Court. No. 52. Deposition of Jtcv. John Huf^h Maci«cna,s, produced by Respondents filed 7th July 1879. — continued. of union at such time us may bo nami'(l by the Syiiod at a subseciiieiit diet. Seven voted tor a motion that the Committee on LegiHlation continue their hibors until Hiich time as certain alleged discrepancii'S between tiie AcAh regarding union passed by the Legishitures oC Ontario and Quebec be removed, and two wouhl not vote, Q. According to the minutes of the session of Synod, in June, eighteen Imndred and sev(!nty-live, what is the birgi'st number who appear to have voted at any one time on any (juestion ? A. As liir as I can see that was the largest vote; and I may remark that it was a very hirgc vote, according to ordinary voting in the Synod. lo Q You stilted that the Synod adjourned to the Skating Rink, and remained there legally coi:stituted about an hour; what was it doing diunng that hour in the Skating Kink ? A. We lirst constituted, and then we had to wait until the other three bodies came filing in; and then I think they read over the resolutions of each body resolving to go on with tin; union ; and then there was the reading of the basis of union, the resolutions, and odds and ;Mids of that kind, Q. Referring to the original articles and basis of union which you have in your possession, and which were signed in the Skating Rink as you have stated, is it not true that there is no date to the said articles and basis of union further 20 than " 187o," written in figures ? A. Yes. It was an omission of the clerk, but I can certify the articles were signed on June (ifteenth, eighteen hundred and seventy-five. Q. 1 Hujjpose you oidy know that these three other gentlemen were mode- rators of the three (Jhurches that united with your body from thi} mere fact of their having signed in that capacity ; you have no official information < '" that ftict, have you V A. The bodies sat here for a week, and I knew these gentlfmen were moderators. One sat in Kno.v Chiu'ch, one in St. I'aul's, and another in Erskine. Q. Woidd you point out the ([uestions that were put to you and to the other ,'io ministers of the Presbyterian (jhurch of Canada in connection with the Church of Scotland, at ordination ? A. The questions put to me were those in existence in eighteen himdred and fifty-three. A new series was adopted in eighteen lumdred and sixty-seven, which will be found on page 31 of the miinites of that year. Then these were changed for others adopteil in eighteen hundred and seventy-two, which will be found on [)ages 45 and 46, Q. Is there any substantial difierence between these ? A. No, no sid)stantial difTerence. Q. In addition to these (piestions is there not a formula to bo subscribed to, 40 which is found on page 85 of the Synod uiinutes of eighteen hundred and sixty- seven ? A. Yes; there is a formula. Whenever there are questions there must be a formida to give a suimnary. The for/nula is at page 35of themiiuites of Synod of eighteen hundred and sixty-seven, and it is a re-inme of the questions. In regard to the fornmla to be found at page 47 of the minutes of Synod in eighteen hundred iind seventy-two, it is a resume of the questions adopted in eighteen hundred and seventy-two. 269 Ut .lict. bors nion ould iteen rote (I that iiinofl ur in threu cnch jf the iV(> in dated, nrtfier 20 irticles mode- act of '• that n were rskino. e other ;j() urch of undret, having reference to the passing of a resolution for the extension of fraternal greetings to tiie Methodist body? A. Yes. (J. Do not ministers of th(! Church of Scotland subscribe to the Confession of Faith in its entirety at induction and ordination ? 20 A. They do. (J. lias there been any rule or regulation made in the Chunih of Scotland, by which it is dcelared that nothing (lontained in the Confession of Faith or Catechisms regarding the power and duty of the civil magistnites shall be held to sanction any principles or views inconsistent with full liberty of conscience in matters of religion ? (Objected to, as illegal, as we have nothing to do with the Church of Scotland in this cause; the question being irrelevant and lujt arising out of the exumina- tion-in-chit'f. Objection reserved by the parties.) A. There is no rule or regulation, but th-'y hold it although not expressed. •JO Q. What is your authority for saying tlniy hold it? (Objected to, as illegal, ius we have nothing to do with the Church of Scotland in this cause; the (juestion being irrelevant and not arising out of the examina- tion-in-chief. Objection reserved by the parties.) A. My authority is, it is evident, on the face of this understanding. Q. Of what understanding? A. It is evident on the lace of the understanding referred to. The 'ilause begins : " It being distiiuitly understood." It is evident on the f}u;e of the under- standing that the; Church of Scotland, or the Presbyterian Church of Canada in connection with the Church of Scotland, would not hold that the clause in the 40 said Confession regarding the power and duty of the civil magistrate did sanction principles or views inconsistent with full liberty of conscience in matters of religion. Q. Are you not now reasoning that there is a relaxation of the rule regard- ing an adhesion to the Confession of Faith in its entirety in the Church of Scot- land from the fact that the Presbyterian Church of Canada in connection with the Church of Scotland, or the members of it which went into the union, appear liil 1 ,!.» 'i liUg RECORD. fn the Supirior Court. No. 52. Deposition of Ucv. John Hugh Mackcrnts, produced by Respondents filed 7th July 1879. — continued. 270 to liMVt' 8iil)sciil)i'tl to a ivl.ixation of it with triranl to tlif pitwur of t\\v civil magistrate ? A. I hold that there is no relaxation. (^. Stiite yoiu' authority for (Icclariiifi that thi- adhesion which ininistors are huund to give iit induction and oi'diiiatioii to the (Jonl'e.ssion of Faith in the Church of Scotland, cun he interpreted in the sense indie ited by the sec^ond elnuse of the bitsis of luiioii ? (Objt'('t<'d to, as illciTid, \ud as we havi^ nothing to do witli the Church of Scothind in this cause. Olijeclioii res' ivcd by [)artif8.) A. Because^ to attribute to the Chin'ch of Scotland vi((WH inconsistent with 10 th:it clause would be to insult thiin. Q. This is yoiu' own inter|)retation nienOy, is it not ? A. My own interpretation ; ani I hiive conviuscd on this matter with ministers of the Chiu'ch of Scotland, and largely with ministers of the Presl)y- terian Chun-h of Canad:i in connection with the (Jhurch of Scotland, and they have agreed with me in tluit opinion. (^. C:in you give any work of authority on the Confession of Faith that will bear out the inteipretation you have given to this matter ? (Objected to, iis illegal and irrelevant, said Confession of Faith boinu a docu- ment which speaks for itself, and any work tin reon e.\i)ressing mtu'el}' the opinion 20 of its author being of no more value than the opinion of the witness. Objection reserved by the parties.) .1. 1 am not aw;ire of any works on the Confession of Faith or refening to it, but I may nsention — perlia()s it will be an authority — that in eighteen hun- dred and seventy-one the Rev. Gavin Lang moved the adoi)tion of a similar clause, namely : " That fnllliberty of opinion in regard to the power and duty '• of the civil magistrate in matters of religion jis set forth in the said Confession, " is allowed." Q. Wiis it carried ? It was not carried. Do you pretend, then, that it is any authority if it was not carried V I merely mentioned thr.t as a fact. To return to th(^ region of facts and authority, can you mention any work whatever on the (church of Scotland, its rules, laws, or regulations that will bear out the inteipri'tation that you have given to the twenty-third chapter of the Confession of Faith V (Objected to, as illegtd, the Church of Scotland being not in i.ssue in this cause, the (juestion not arising out ot' the examination-in-chief, and the witness not having referred to the twenty-third c^hapter of the Confession of Faith in his exaniination-in-chief. Objection reserved by the parties.) ^1. No, because it is an axiomatic truth. (J. Before joining the Presbyterian Church in Canada 3'ou were a member of the Presbyterian (Jhurch of Canada in connection with the Church of Scotland, were you not ? A. I was a member and a minister. Q. At your induction and ordination as a minister of the Presbyterian Church of Canaila in connection with the Church of Scotland did you not give in A. A Q. ;^o 4(1 271 IV il the nuse h of with 10 witli thcv that docu- [)\u'um 20 ection "mg to 1 hun- siinihiv f duty V'ssion, •d? Ml any at will pier of in this witness in his ineniher lotland, )ytenan give in a full adliision If) (h(( Larjior and Shorter Catfchisuis and to the (Jonlcssion of Faith in its entirety ? (Objected to. as irrelevant to the issnos, to the Confession of Faith, bnt not to the Liruer and Sltorler Ciiteehism-^. Petitioner waives the (iuustion.) Q. When were yon ordained ? A. In September, eiglitei'n hundred and fifty-three. (^. At the time of your ordination and siibse(|MeMtly up to the fifteenth of Jnjie, eightien hnndreil and seventy-live, did the l*resl)yterian Chin-ch of Canada in connection with th(! Chnrch of Scotland, or the Synod thereof, for the purposes 10 of the said l*rrsl>yterian Church of (Janadi in connection with the Church of Scotland, ever deem it necessary t. declare or enact that it was distinctly under- stood that nothing contiined in tin; ai()res;iid Confession (to wit, the Confession ot Faith) or (Jatechisms, (to wit. tlic Larger and Shorttsr Catechisms), regarding the [)owi'r and duty of the civil magistiate shall l)e held to s mction any princi- |)les or views inconsistent with full liberty of conscii-nije in matters of religion ? A. They never found it expedient so to do. Q. Why then, was it necessary to put in the clause just referred to, in the basis of union of the Presbyterian (Munch in Canada? (Objected to as irrelev.int. "-..'ction reserved by the parties), 20 A. During the negotiations ..•. a union, it ap|)eared that some of the parties weri' of th(( opinion that this chapter in the Confession regarding the power and duty of tin' civil niagistrat<' did sanc^tion principles or views in- (Mjnsistcnt with full liberty of conscience, in matters of religion. The Pres- byterian Church of Canada in connection with the Church of Scotland, and the Presbyterian (Jhurch of tin- Maritime Province's in connection with the Church of Scotland ludd that tlie chapter could no': be interpret"d to sanction any such princi[)les ; and a part of the other Churches, the Canada Presby- terian Chuich and the Presbyterian Church of the liower Provinces of British North America, thought as I have statiMl. They said to us: If you hold that 8(» there is nothing contained in that that does sanction principles or views in- consistent with full liberty of conscience in matters of religion, why not say so, it will be an obstacle removed, ami we said : We will say so, and we will put it down. Hut it is a view we havt; always held, and we did not think it necessary to put it liown, but in order to remove a difliculty or scruple we had it inserted, believing it was only an explanation. Q. When you say the Presbyteriat\ Church of Canada in connection with the Chnrch of Scotland Indd a particular view with regard to this twenty-third chapter of the Confession of Faith, did you not mean in the hist answer those members who had belonged to that Church who had joined, or were willing to 4n join, in the formation of the union referred to ? A. 1 mean them all. Q. You have stated that the Presbyterian Chnrch of Canada in connection with the Chiu'ch of Scotland and all its members held the view with regard to the Confession of Faith cnd)()died in the second clause of the basis of union, eVen before the said union ; can you point out where the said Church in its Synod de- clared that such was the interpretation of the Cliurch with regard to this matter ? A. No, because we never found it necessary or expedient to do so. UKCOllD. Jn (he Huperinr Court. No. 52. DepoHition of itcv. Joiin llu^li Miicldirrutt, produced by itospoiidoiittf Hied 7tl» July 1875). — continued. IV'/- 'V '''J': II 11 1 '9- >' . i'i;»i >HI^ it. II RECORD. /n the Superior Court. No. 52. Deposition of Rev. Jolm Ilu^h Mnckcrra.«, produced by Respondents filed 7th July 1879. > — continue*!. 272 Q. You went on individuiil opinion ? A. No, I gave n general concensus of opinion. Q. Do you tliink you gave the opinion of all the members of the Presby- terian Church of Canada in connection with the Church of Scotland ? A. I do. Q. Bc'fo. (' the said uiii(m, was there perfect harmony between the I res by - terian Churcii of Caniida in connection with the (!hurch of Scothmd and the Canada Presbyterian Church in its iiitfipretation of the twenty-third chapter of the Confession of F;iith on the powers of the civil magistrate, in other words, was there a concensus of opinion between those two Chiu'ches as regards said chapter? in (C)l>jected to, iis illegal, the (pies'' )n of harmony, or the leverse, between the said two Churches, having nothing to do with the issues in this cause, and whether or not there was harmony, all the said Churches agreed on a connnon biusis of union. Objection reserved by the parties). A, I am inclined to believe that there were many in the Canada Presbyte- rian Church who did think that this chapter sanctioned views or princi- ples inconsistent with full liberty of conscience in matters of religion. Q. The ministers, then, ordained in the said Canada Presbyterian Church before the said union were not, at their ordii\ation or induction, required to sub- scribe to the said Confession of Faith in its entirety, were they ? 20 CObjected to as illegal and not in issue, the Canada Presbyterian Church or its ministers having nothing to do with the issues raiseil in this cjiuse, and, be- sides, as not arising out of the examination-in-chief. Olyection reserved by the parties). A. 1 could not say without referring to the books, which I have not here. Q. Could you give your impression ? A. No, I would not give impressions. I never like to give anything with- out being able to verify it. Q. I understand you cannot verify any authority in the records of the Presbyterian Church of Canada in coniu'ction with the Church of Scotland, by :so which it was found necessary for that Church to put the interpretation upon the Larger iind Shorter Catechisms and the Confession of Faith, twenty-third chap- ter, that has been put upon the latter in article 2 of the said basis of union ? A. The fact that it was so put I can verify by referring to the minutes. Q. You mean lor the purpose of this union ? A. I do. Q. But antecedent to the said union and the purposes thereof, can you verify any records showing such interpretation ? A. No occasion ever arose. Q. Does a record of the kind exist ? 40 A. No. The examination of this witness is adjourned. And on this ninth day of Jidy, of the year aforesaid, re-appeared the said witness, John Hugh Mackerras, and continued his evidence as follows : Q. Is it not true that the Presbyterian Church of (knada in connection 273 with till' ('linnli of Scotliunl, was iilways roganlt'(inently styled a branch of that Omrt. Church by the Synod, and in various resolutions and memorials passed by that body ? No. 52. A. Yes, but these terms are to be looked at in the lijrht of, and derive the Ij,«'P*'^'''°" extent of their meaning from, the Dedanitory Enactment already referred to, of j„j,n ji„„|j eighteen hundred and thirty-th'-'e, and the Act of Spiritual Independence Mackcrruu, 10 already rel'i^rrei to, passe I iu Septemb t, eight" 'M hundred and forty-four. produced by Q. How do you explain the words tu l)e found in the petition addressed to i^^j''7°L*'"^ the King in the year eighteen hundred and thirty-one, to b ■ found on page 20 of j^jy jg-jg the Exhil)it 8, o, being minutes of Synoi for that year, and being as follows: — continued. *' Your Majesty's Petitioners would exeeelingly regret to see the Clergy *' of the Church of Scotland deprived of that support which is essential to *' ensnie their rcspectal/.lity or uselidness, but ludonging to the Established " Chinch of a pcn'tion of the British Empiie, they could not but feel it humiliating " and unfortunate that they should not be considered worthy of the same measure '' of support when the means are not wanting to aftord ample encouragement 20 '< to both ? " A. At the time the language in question was used the Synod was not aware of the exaet relation in which it stood to the Church of Scotland, the languiige in question being used in eighteen hundred and thirty-one, and the Declaratory Enactment of the Church of Scotland, defining the connection betwt'en the Church of Scotland and the I'resbytrrian Church of Catnida in connection with the Church of Scotland, not being passed until eighteen humlred and thirty-three. Q. Do you not find that down oven to the year eighteen hundred and seventy-two the said Prasl)yterian Church of Canada in connection with the 30 Church of Scotland, calh'il itself a branch of the Established Church of Scot- land, in Scotlami ? I refer you to the minutes of June, eighteen humlred and seventy -two, page 32 ? A. That resolution contained no enactment of the Synod and did not form [)art of the constitution of the Church, and therefore must be viewed in the light of the Act of Independence, piissed in September, eighteen hundred and forty-four. Q. In your examination you referred to the nnion of the United Synod of Upper Canada with the Presbyterian Church of Canada in connection with the Church of Scotland, did you not ? 40 A. Rather the incorporation. Q. Those under the jurisdiction of what wsis called the United Synod of Upper Canada actually came into the Presbyterian Church of Canada in connec- tion with the Church of Scotland, did they not? A. Yes; they incorporated with them. Q. And they did not wish that their name .should be adopted by the united body, or any other name, but they took the name of the Presbyterian Church of Canada in csbyteiian Chur(di ol" Canada in connection with the Church of Scotland, said letter being pigned by the nicxlerator and clerk of said United Synod, that '' as the Presby- '• lerian (.'lunch of Ireland (to which many of the said ministers of the saiil " UrdUid Synod belong) is in connection with the Church of Si'otland and its " miidsters are all admis.silde into your Synoil, we can s<'e nodilHcidty in the way 20 " of its introduction." Ls it not so declared in a letter at that page? A. These words are there. Q. Did not said United Synod, as appears from page 1*2 of the minutes of the Synod of the Presbyterian Chundi of Canaila in conu'ction with the Cliuich of Scotland, for eighteen hundred and forty, unanimously il'clare, as ap!)ears hy the Certificate of their moderator and clerk, "That the ministers of the United *' Synoil, before taking their seat, eith-r in the Synod of Canada or Presbyteries, '"• will sign the usual formula for unnisters of the (Hiurch of Scotland " ? A. These words are here aiul form part of tlu^ ba^is of union between the Presbyterian Church of Canada in (Connection with the Church of Scotland and 30 the United Synod of Upper Canada. Being requested, I herewith pro'luce an extract from the minutes of the Acts and Proceedings of the General Assendjly of the (Jhureli of Scotland, portions of which I have already referred to, and which are identiliedas being marked with the letter Z5, and which I certify as being correct. Re-Exammed wUhoni waiver of objectloiia, Q. You have referred in cross-examination to rule 4 of standing orders, pdge 34 of the said minutes of Synod for the year eighteen hundred and lifty- nine ; please state whether said standing order and rule apply in any way to the '*^' question of the uiuon in question in this cause? A. Il does not ap[)ly, but refers to the modifying or suspending of a public act or standing order. Q. Are you sure that on the lifteenth of June, eighteen hundred and seventy-five, upon the adjoin nment of the said Synod to Victoria Skating Hink the said Synod continued in se..^.v.n there for alM)nt an hour before the said articles, basis (d" union, and resolutions were signed by the said moderators? 275 an- I of 'rcs- >> ill vitli 10 riiui (Ind ■ the jiii\n K'ing isbv- 8;ii^;i). iiiasiniich as tli(> wiliH'.ss siiid in his exainiiiation-iii- chief that thi' Synod reiiiniiicd f(tr about an hour le;^ally constituted in the said liink bt'lorc the ai"ti(;h's of union were sijjned, and not being a (juestion for re- uxaniinatioii. Objection lei-erved by tlie parties.) A. I am perfectly certain. Q. You lire askecl in cross-c'xainination c/)nccrniiiir the (piestioiis put to you at your ordin ition in <'iLthteeii huiuh'ed ami lifty-three, and you statcil that you sidiscriljed to the ('oufes.siuu of Kaith ; in what luaiUKU- did you adhere or sub- scribe to tlie Coiife.ssion of Kaith? 1ft A. Uy verl)ally aHirminjj; assent to (piestions two in the list of (juestions put to those who are being ordained or inducted, as found on page 27 of the minutes of said Synod for I'ighteen hundred and lifty-three. The question to which I assented is aa follows : " Do you sincerely own and bidieve the whole doctrine '' sontiiined in the Confession of Fiiith, approve I by the General Assemblies of " the Chureli of Scotlan-I and r.itilied \ty law in sixteen humlred and ninety, to •• be founded upon the Word of God: and do you acknowledge the same as the " Confe.saion of your Faith, and will you lirmly and constantly adhere thereto " and to the utmost of your power assert, maintain and defend tlie same, and the " purity of worshi[) .is presi'iitly practised in this Ciiurch and asserted in Act 15, 20 " Ass 'uddy of seventeen hundred and seven, entitled ' Act against Innovation in '' the worship of God." Tfiat ipiestion is the same as the ((uestion put in the Church of Scotland, with the exception of a word omitted, namely, '* practised in this Church," instead of " practis 'il in this National Church." That is one form in which 1 expressed adherence, and 1 expressed it in another form by signing the Ibrmula which follows, page 2!) of the minutes of eighteen hundred and fifty-three; '• I do herel)y declare that I do sincerely own and believe the whole doctrine '* contaiiK (I in the Confession of Faith approven by the General Assemblies of the " National Chui'ch of Scotland and ratified by law in sixteen hundred and ninety, " and lre(inently contirmed by divers acts of Parliament since that time, to be the 30 " trutlis of God, and 1 do own the same as the confession of my taith," The rest of it rel'ers to the other questions. (J. Do 1 understand you to moan that in the questions put by the Church of Scotland, in Scotland, at the [)lace yon have indicated in the second question, the word "' Natit)nal," which occurs in the (Mnnrh ol Scotland (question, has been dropped by the Synod of the l'resi)yterian Church of Canada in connection with the Church of Scotland, in framing their second question you have just referred to ? A. It has been dropped. (^. How many times have these (piestions and formula been changed since 40 eighteen hundred and lifty-three by the Presbyterian Church of Cmaila in con- nection with the Church id" Scotland ? A. The form of polity containing these questions, and from which I have quoted for eighteen hundred and fifty-three, was changed in eighteen hundred and sixty-three, lait not the questions. I have compared them word for word ; they seem to be exactly the same. The po'ity was changed but not the ques- tions embraced in it. These questions were changed by the Synod in eighteen hundred and sixty-seven, page 31, and they were still further changed by way UK CORD. In the Superior Court. No. 52. Depowtion of Itev. Joliu llu^h Muukt-rrus, produced by UfwpoiideiiUi H1(mI 7tl» July 187!). — continued. !fiR f 27r> RKCORD. of iTKidiCuMtioii mid siin|)Ii(i('iifi()H in ciglitiH'ii limnlrcd iind s •vciity-two, as uppearrt on pajjtos 45 nnd \{\ of said niiinitoH. Q. Was it obligiitory according to tli<> law and practice of the Hnid Prosby- In the Supfrlnr Court. No. 52. Deposition oC Hev. Jolin Hu^h Mnckorras, produce J by FrspondontH filed 7tli July 1H7!». — con tinned. 20 tcrian (^luiich of (J.mada in coniicction with th(^ (Ihiinih of Scotland, to introduce to the Synod all hiisiness by ni(;iuis of an (. 'crtmo V A. It was not. It was not required by our Rurrior Act, aw it in required by the Barrier Ad for the Church in Scotland. Q. When' is yoin* Harrier Act t«- be fi)und ? A. Ill tlu' minutes of the siid Synod fo,- eighti'i'ii hundiedand thirty-eight, page 1'), ol' Petitioner's lOxhibit " MUH," mid which reads as ftllows: "That the i(» " legislatixe eniictnients of this Synod be regularly transmitted to the several " Presbyteries, and I)'' in force only for one yi>iir if a dissent of a majority of " Picsbyterii's be intimated to tin' meeting of Synod next ufter that, at which " such eniictment shall have been respectivrly made." The same is repeated in the minutes of Synod for eight"en hundred and si.\ty-nine, page 39. Q. You stiiteil in your cross-o\ iiiiiu:iti 111 thiiL the ministers of the Unity an ovurture, and they require an assent ami we require a dissent. Q. The minutes themselves were not styled as a Barrier Act? A. It was not styled as a Barrier Act at the time it was inserted, but after- wards when it was spoken of — and 1 don't sup[)ose there was one year it was not spoken of — it was called the Barrier Act ; to be safe, I will say, in almost every session of the Synod of the Presl)yteriiui Church of Canada in connection with the Church of Scotland since it was enacted. Note. In reference to the deliverance of the General Assembly of the Church of 40 Scotland on the Report of the Colonial Committee, and which deliverance I have quoted on pages 28, 2U and 30 of my deposition, I wish to state, that I was a delegate to the said General Assembly of the Church of Scotland of eighteen hun- dred and seventy-five, and was present when said deliverance of the General Assembly was iiassed. And further deponent saith not, and this deposition having been reavl to him, he declares it to contain the truth. S. A. Abbott, Stenographer. ;ii) 277 I, IIH L>Hby- iducc uiretl fight, ,vt the 10 everal •ity of which ted in [Jnit.Ml .' Pres- 1 d the rticidar '1' ijihteon )in piige Tor the rier to of Scot- itruduc- i-quire a )ut after- vviia not osl every with the hurch of 40 ce I have t 1 was a teem hun- General a.i to him, pher. Sche(hilc No. G8. On thirt ninth day of July, in the year v>f our liord one thoumind eight hun- dred and seventy-nine, personally mum and a^^^neared Rev. John Jenkins, doctor of divinity and doctor of laws, uiiniflter of St. Paul's Church in the city of Mont- real, aged nixty-five years, a witncsn produced on the part of the Respondents, who lieing duly sworn, de[)osL'th and saith : I am one of the Rcspoiidents in this suit. UECORD. In the Superior (foitrt. No. M. Do position of Uev. John Q. You are a minister of the Presbyterian Church of Canada in connection JoukioB, with the Church of Scot' nd ? 10 A. Yes. Q. And also, I think, a minister of the Church of Scotland ? A. 1 am. Q. Have you ever held any official position in the Synod of the said Pres- byterian Church of Canada in connection with the Church of Scotland, and if so, state what ? A. 1 was elected moderator of Synod in eighteen hundred and sixty-nine, *nd served for a year. Q. How long have you been a minister of the Presbyterian Church of Canada in connection with the Church of Scotland ? 20 A. Fourteen years. Q. During that time of what church have you been pastor ? A. Of St. Paul's Church, Montreal. Q. And during those fourteen years have you constantly attended the church courts of the said Church ? A. Very legularly. Q. Are you acquainted with the procedure of Synods and the laws and cus- toms of the said Church ? A. I think 80. Q. You had large opportunity for becoming acquainted with the laws and 30 procedure of the said Church, I suppose ? ' A. Yes. Q. Can you tell me what constitutes a quorum of the said Synod ? A. Fifteen. Q. Is thiit according to the rules of the Church ? A. According to the standing orders already quoted by Professor Mackerras, whom I heard examined. Q. Has that rule been acted upon always in your experience ? ' ' A. In my experience, always. Q. When you were moderator wet*e you crtreful to see it was acted upon ? 40 A. I never allowed any business to be opened or undertaken uidess I felt sure there were fifteen persons or more in the court. I never constituted the court without seeing, either by the clerk or myself, that there were fifteen members or more present. Q. I suppose you are acquainted with the nature and powers of t-he Synod of the said Presbyterian Chui'ch of Canada in connection with the Church of Scotland? A. I think so D.l)., produood by Ucspondenta filed 9th July 1879. »'^ i-m'i^ I RECORD. In the Superior Court. No. 53. Deposition of Rev. Joliii Jenkins, D.D., produced by Respondents filed 9th July 1879. — continued. 278 Q. Will you kindly state the nature of such powers. ace^rHnc to tli" Inws and procedure and practice of the said Pre.-*byterian Church of Canada in connec- tion with tile Church of Scothmd ? (Objecti'd to, as illegal, inasmuch as the Synod is governed by written laws and regain tion.s, and it is not competent for the witness to give verbal evidence regarding them. Objection reserved by ^he parties). A. The Synod is the supreme court of the Church. Its powers are twofold — first, judicial ; second, legislative. As a judicial court, it is a court of final appeal in all eases of discipline tried in the lower courts and appealed from tliem. Legislatively, its jurisdiction is twofold — first, it has a spiritual jurisdiction bear- 10 ing ujjon the control of all religious matters; second, it has a secular jurisdiction bearing upon all matters of property, or in the nature of property relating to the Synod. Q. You might mention, please, the different church courts which e.xist, or have existed, in connection with the Pi'esbvterian Church of Canada in connec- tion with the Cb.'rch of Scotland, specifying which is the supreme court? A. Other than the Synod there were two lower courts, the Session and the Presbytery. The Session is a court created by and within a congregation, for its t^piritual government. The Presbytery is a court consisting of all the settled ministers in a certain locality, together with a representative? from each of the 20 Sessions. This court has spiritual oversight over the (charges or parishes of a particular district, and has, to a considerable extent, also secular oversight. Q. And of what is the Synod composed ? Who constitute its members? A. The Synod is composed of all the ordained ministers in settled charges in the Church, with a representative elder from each Session : or, you may say, of .tU the members of each of the Pr^ at the suggestion of a di?patch from the Secretary . 279 V.iws nnec- laws clence iTOlbW ' final them. I boar- in [iction ing to ist, or ioiuiec- ,iul the for its settled of the 20 es of a bevs ? charges ou may is coiu- Church, ve at a !ular, by 30 h. W* Church associa- 40 from the '8 from a the 3rd secretary of State for the Colonics, Sir George Murray, to Sir John Colborne, Lieutenant- Governor of Upper Canada, that dispatch relating to a union between the dif- ferent classes of Presbyterians in Upper Canada, aforesaid. The dispatch is dated 1st of August, c"<.;liteen hundreil and thirty. Such dispat^'h suggested on the part of the Iniperia Govertnent the desirableness of the union of the whole of the Presbyterian clergy of the Province, with a view to facilitate the disbursements of the money derivable from the Clergy Reserves. Q. Was the siiid Church formed without reference to the Church of Scot- land, in Scotland ? 10 A. The Presbyteiian Church of Canada in connection with the Church of Scotlimd, was formed altogether independently of any authority over, or of any knowledge by the Church of Scotland, in Scotland. Q. Was its mime also given to it in the same way ? A. The name originated with itself. In fact there was a suggestion subse- quently of another name that came from the Colonial Committee of the Church of Scotland, the name suggested being " the Presbyterian Church of Canada hav- " ing its standiirds and its forms of worship identiciil with those of the Church of '' Scotland," but that name was not adopted by the Church in Canada. Q. Was the said Presbyterian Cliurch of Canada in connection with the 20 Church of Scotland, a branch of the Church of Scotland, in Scotland? A. No; it was not a branch in that sense, it was rather a cutting set in another soil. Q. What was the nature of the connection between the said Presbyterian Church of Canada in connection with the Church of Scotland, and the raxid Church of Scotbmd ? A. It was a connection of identity, of oiigin and of standards, both as to doctrine and worship, of ministerial communion in part, and of communion of members. Q. Are these as they always were, or have they changed since the union 30 which is in question in this cause ? A. They are as they were; there has been no change. Q. You say that the attitude of the Church of Scotland, in Scotland, has not changed since the said union ; will you mention your reasons for so saying and give instances ? A. My reasons for so saying are these : The Church of Scotland, as before the union, has continued to aid the Presbyterian Church in Canada by donations from her funds ; that she has received ministers of the Presbyterian Church in Canada into her parishes and courts in Scotland on the same terms which were in force before the union. In regard to donations, I instance Queen's College, 40 which still rweives an annual grant from the Church of Scotland. I also instance moneys contrbuted by the Church of Scotland to the French Evangelization Society of the Presbyterian Church in Canada, and to the Home Mission of the Presbyterian Churcli in Canada. As to ministerial communion, I instance the case of the Rev. Wm. M. Black, a minister of the Presbyterian Church in Canada who took with him a Presbyterial certificate to Scotland, from the Presbytery of Montreal in connection with the Presbyterian Church in Canada, which certificate was received by tl>e Presbytery of Kirkcudbright, aqd on which certificate he RECORD. In the Superior Court. No. 53. Deposition of Rev. John Jenkins, D.D., produced by Respoudcnte tiled 9th July 1879. — continued. '■m ■"ki'i imi mi I RECORD. In the Superior Court. No. 53. Deposition of Rev, JollD Jenkins, D.D., produced by Respondent filed 0th July 1879. — contimted. 280 was received into the Presbytery {ind inducted into the parisli of Anwoth, luiving, before connecting himself 'vith the Presbyterian Church in Canada, been ordained by a Presl)ytery of the Church of Scothind in Scothnid. I instance the case of the Rev. Principal Snodgrass, D.D., whose position in this country was similar to that of the Rev. Mr. Black, and who was received on his Presbvterial cfrtificate from the Presbytery of Kingston by the Presbytery of Langholm, in Scotland, in the Synod of Dumfries, Scotland, and thereafter inducted as minister into the parish of Canonby in said Presbytery. Q. Can you state what has been the attitude of the Church of Scotland, in Scotland, towards the iniion of the Presbyterian bodies Avhich is in question lo in this cause ? (Objected to, as illegal, inasmuch as the attitude of the Church of Scotland is a matter of record. Objection reserved by the partie.*--.) A. In eighteen hundred and seventy-one I was appointed by the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, a deputation to the General Assembly of the Church of Scotland upon the Ibllowing resolution pas.sed on Weanesday, the fourteenth day of June, eighteen him(h"ed and seventy-one, by the Synod, as appears at page 36 Synod minutes: "Whereas, " this Church has ever cherished and does still cherish devoted attachment to the " Church of Scotland ; and, wherens, it would at any time be proper to convey by 20 " deputation to the Mother Church an e>:pressi(m of our filial afteetion and pro- " found esteem, but in the prospect of a union of all the Presbyterian Churches " throughout the Dominion of Canada, it is especially be(omiug us to express our " devotion and our desire for her continued sympathy, be it resolveil that this " Synod appoint, and they do hereby appoint, John Cook, D.D., Wm. Snodgrass, *' D.D., John Jenkins, D.D., and James Croil, agent of the Church, such deputa- '• tion, with instructions to appear betbre the Venerable the General Ass(>mbly of " the Church of Scotlaml at its next annual meeting, to assure the Assembly of " the undiminished attachment of this Synod to the Parent Church, and to com- '•■ municate to the Assembly full information reg;'.rding the position of this Church, :!0 •' and especially as to the reasons which weigh wi.^li this Synod in their attempt " to advance the interests of Presbyterianism in this part of the Empire by the " consolidation of the several branches of the Presbyterian Church under the '•jurisdiction of one General Assembly." This resolution was unanimously adopted by the Synod. 1 did so appear before the General Assembly of tlie Church of Scotland at its meeting in May, eighteen hinidred and seventy-two, and furnished the General Assembly to the be«t of my ability with all the information that I possessed respecting negotiatitms for union in so far as tnev had proceeded. Where- upon, after kindly expressions from the moderator, the General Assembly agreed to the following resolution : " That the General Assembly desire to record the 40 "high satisfaction with which they have h^ard of the energy, Christian zeal, and "distinguished success with wliieh their work as a Church is carried on by the " Synoil of which Dr. Jenkins is the representative, lind in bidding them God- " speed in the great work before them in a great country, daily advancing in "wealth and population, they feel assured that that work will be carried on by " God's help for the future as it has been in the past, and that no miion of the "several Presbyterian bodies in Camida will be agreed to without their being all ned ;e of ir to ic;ite d, in ) the liind, stion 10 tland .od of iind, a Dwing indretl to tilt" vey by 20 id pro- lurchea es*^ o(iv at this id grass, |de\)utii- bly of nbly of to com- Church, :ui attempt by the der the adopted lurch of iiished that 1 Where- y agreed cord the 40 xeal,and by tlie leni God- iicing in t lie uii- with cause, terian Miee — MCtion 40 irch of U! Siiid by tlie tery of Tianghohn to the parish of Canonliy. The Synod of the Presbyterian Chnrch of Caniula in eonneetion with the Church of Scothmd, so-called, deposed Dr. Snod- grass from the ministry, as appears from tiu; record fil< d in this cause, to wit, the minutes of the Presbyterian (jlmreh of Canada in connection with the Church of Scothutd. Ami I state here that the Presbytery of Ltuigholm was duly and olFicially informed of such de|)OHition i)y the Rev. Robert Burnet, the clerk of the .Synod of the I'resbyterian Church of Canada in connection with the Church of Scotland, so-called, and that the said I'ri'sbytery wjis warned against inducting the said Dr. Snodi^iass to the Parish of Canon by, as appears from a document 10 which I hold in my hand and exhibit. (Petitioner ol)jects to the production of the said letter, inasmuch as it is not in the possession of the party to whom it purports to have been sent, if sent at all, and the witness is not a competent witness to prove the sending or the receipt of the said letter. Objection reserved by the parties.) ^1. Tiiis document, I swear, is in the handwriting of the said Rev. Robert Burnet, and with which I have been familiar for many years, and is as follows : " Lond(m, Ontario, Dominion of Canada, « 2nd October, 1877. " To the R'Verend Moderator of the Presbytery of Langholm : 20 " Dear Sir, — I am directed by the Synodical Commission of the Presbyterian " Chiu'ch of Canada in connection with the Cluuch of Scotland to represent to the '' Piesbytery of Langholm that we have heard with deep regret of the presenta- " tion of the Very Reverend Principal Snodgrass to the parish of Canonby. " Principal Snoilgrass, as a minister of this Chnrch and head of Queen's Col- " lege at Kinj^ston, has made himself most active in attempting to obliterate the " honijred name of the Church of Scotland in this Colony — in fact, has almost " 8uc<'eeded. If it be a sin and a crime to deny the Church, he is verily g'nilty, " and ought not to have the opportunity effectually to do in Scotland what he " has done in Canada — overthrow the Church. 30 " The Very Revd. Principal has been deposed from the office of the ministry *' in our Church. He was act and part in the consunnnation of the union recently *' accomi)lished between the Church here and the bitterest enemies of the Church " of Scotland in any of the Colonies belonging to Great Britain. " 1 may add that the public opinion of the Free Church regarding Principal " Sno Igrass, (or what those of us attached to the Church of Scotland call ' the " logic of events") has driven Dr. Snodgrass from his sphere of labor in iCanada, " as it has already driven many niinistirs lately belonging to the Church of Scot- " land Irom their congregations. We in Canada, Churchmen and Scottish Church- '* men, would be recreant to our Churcli and to our principles did we not thus 40 '• puldicly protest against the induction of the Rev. Principal Snodgrass into any " parish in Scotland. " In name and by authority of the Commission of the Presbyterian Church " of Canadii in connection with the Church of Scotland. " Robert Burnet, Clerk of Synod and of Commission." 1 shall be very glad to lile a notarial copy of this docament ; [ prefer to keep th(! original. ' '' The examination of this witness is adjourned. ■'■ RKCORI). Jn the Superior Court. No. 53. Deposition of Rev, Jolin JenkiDH, D.D., produced by Respondente filed 9tli July 1879. — contiiiued. .; in nh "Mi ;»i RECORD. In the Superior Court. No. 53. Dfposition of Rev. John Jenkins, D.D., produced by Respondents tiled !Uh July 1879. — continued. 284 And on this tenth day of July, of tho year jiforcsiiid, re-apjujarcd thi' said witness, Rev. Jolni Jenkins, D.D., and continued liis evidence, a.s foHows : Q. C:in you add anything finther that could throw light upon tlio said letter signed by the said Rev, Robert Burnet, which yon produced, or about the action of the said Presbytery in reference thereto? (Objected to, MS irrelcvjint. Objection reserved l)V the piirtics). A. I stated that the Presbytery of Langholm inducted the said Rev. Dr. Snodgrass to the parish of Canonby, within its bounds, in spite of the letter and protest thus read, showing that it took no njti(!e whatever of, perhaps, the most solenni action which the so-called Synod ever took in its quasi-ecclesiastical char- lo acter. Q. Will you state under what circumstances, according to the practice of the said Presbvterian Church of Cim.'ula in connection with the Church of Scotland, or according to Presbyterian practict; generally, an ordained minister is deposed from the ministry? (Objected to, as irrelc/ani/. Objection reserved by the parties.) A. A minister is never deposed, as far its Presbyterian practice and usage are concerned, from the office of the ministry except for gross immorality. Q. Will you turn up to the mimites of the said so-called Synod, which were produced by the Rev. Gavin Lang, who was examined as a witness in this cause, 20 said minutes being marked Zl, and show whether or not the said so-called Synod deposed any other ministers from the office of the ministry besides the said Rev. Dr. Snodgrass? (Objected to, inasmuch as the said minutes speak for themselves and are not subject to the interpretation of the witness. Objection reserved by the parties.) A. Yes; I find my own name amongst the deposed ministers. Q, Were there any others ? A. A good many. Q. How many ? A. Too numerous to count just now. 30 Q. Was not the whole Church deposed ? A. In Exhibit Zl, page 14, I lind that the following overture and resolu- tion are recorded : " There was pre.sented through the Committcie on Bills and " Overtures an overture from the Presbyt'.'ry of Glengarry, craving the Synod to " call over the names of the ministers who have withdrawn from this Church and " who joined the Presbyterian Chun-h in Canada at the Victoria Skating Rink, " and declare them no longer ministers of this Ciiurch,and depose them from the " office of the ministry. Alter consideration and deliberation it was determined " to refer to the action taken by the Synod in eighteen hundred and forty-four, " under similar circumstances, and follow the example then .set. The minutes of .[ii " the twenty-third of September, eighteen hundred and forty-four were examined " and the course then taken ascertained, whereupon the Synod declared, as they " hereby do declare, that those ministers who have joined the Presbyterian Church " in Canada, thereby seceding from the Synoil, (then follow the names) are no •' longer ministers of the Presbyterian Chni'ch of Canada in connc^ction with the *' Church of Scotland, in Canada, and that they are hereby deposed from the " ministry of Siiid Church." Further, the Synod agreed to record an expression 285 saiil said , tlie . Dr. • and most char- 10 ce of ;land, post'd usage I were causi', 20 Synod L Rev. ire not irtios.) reso lu- s and n(j(l to cVi and Rink, t)in the mined y-four, utcs of 40 ami nod \s they Church are no ith the om the jressiou of the "grief of -he momher.s present at reading the \\imn:H neriatim, and at de- IlEUORD. *' chiring thoHu who have seceded from our Church no longer ministers thereof, in " terin.s of chapter six, section om.', of the poUty of this Church, and after the ex- ., .* " ample of the Synod ol' eighteen hundred and forty-four, cliapter six, of cases Cutirt. without process, providing, First, when an individual (conmiits) an offence in the presence of the Court, or when he voluntarily confesses his guilt, it in com- No. 53. pett-ut to the ('ourt to ])i<)C('ed to judgment without process, the offender having yPo**'^'»" the privilege of being heard. The record must show the nature of the offence, joj,,, " the judgment of the Court, and the reaions thereof. ^See Acts and Proceed- JenkinK, 10 "• ings of Synod, i>h)ntreal, Monday, Septemher 23rd, 1844.)" D-D-, (^. With reference t(j said minutes you have just read and the example of P™"" ^ ^ the Synod of the Presbyterian Church of Canaiia in connection with the Church filed yth of Scotland with reference to the ministi-rs which seceded from it in eighteen July 1879. lumdred and forty-four, will you state whether the said Presbyterian Church of — continued. Canada in connection with the Church of Scotland did de[)ose from the office of the n)inistry those ministers who so seceded in eighteen lumdred and forty-fcur, as insinuated in the said minutes ? A. They did not, as appears from the minutes filed in Court for eighteen hundred and forty-four. 20 Q. Had you and the said other ministers of the Church whose names were read over and mentioned in the said minutes, conunitted any of the offences which are suggested in the said minutes so as to make you deserving of being deposed as ministers ? A. We never had, and moreover we were never given an opportunity of being heard, if we had. Q. Supposing that the said so-called Synod of the Presbyterian Church of Canada in connection with the Church of Scotland mentioned in the said Exhibit Zl, had the right to depose you and the others from the oflice of the ministry, would not the eilect be to deprive you and them of all right to celebrate the 30 sacraments of the Church, and marriages, and officiate at baptisms, and perform generally the duties of an ordained minister ? A. The effect would be to deprive me of the exercise of all ministerial functions whatever, that is, if they had been a true Synod. Q. Is it not true that if the said pretended deposition were legal and eflective every marriage performed by you since, and every baptism, is null and void, and ultra vires ? A. Certainly. Every such act would be a criminal act on my part, and would be in defiance of the law of the land. Q. Then I understand you to say that the ministers who seceded from the 40 said Presbyterian Church of Canada in connection with the Church of Scotland in eighteen hundred and forty-four, and who formed themselves into the Synod of the Presbyterian Church of Canada, were not deposed by the Synod of the first mentioned Church ? A. They were not. Q. Will you kindly refer to the said Exhibit and mention what was done ? A. This is what was done — 1 am quoting from Exhibit 3,3 of Respondents, eighteen hundred and forty-four, page 20 : " The Synod having called upon p :.«' r I RECORD. In the Superior Court. No. 63. Deposition of Rov. John JcnkiDX, D.D., produced by Respondents filed 9th July 1879. — continued. 286 *' Presbyteries to report whether they hiul obteinporutod the iiistructionH of " Synod unent seceding minirtters, the Prewbytery oi' Kingston reported that they " had dechired the Rev. John M. Roger, of Peterborough, Rev. Thoiniis.Joi)nson, " of (Jobonrg, Rev. Henr}' Gordon, of GamuKxine, Rev. Wni. Roid, of Grafton, " etc., to be no longer ministers of the Presbyterian Chmcli of Canada in connec- " tion with the Church of Scotland, or of the Church of Scotland in Cainida;" so that it is not true that there was any deposition. Q. Was there not an obvious reason lor your Synod taking that action and declaring them no longer ministers ? A. They had seceded, that is, they ha 1 not yielded to the will of the 10 majority. Q. Had they not declared themselves they had left the Church ? A. Yes. Q. That is a very different thing from deposing a minister from the minis- try, is it not ? A. So it strikes me. Q. You stated in the previous part of your examination that there was ministerial and church communion in part between the Presbyterian Church in Canada in connection with the (.'hurch of Scotland and the Church of Scotland in Scotland ; will you kindly explain what you mean by stating that it was in 20 part ? A. This is what I mean ; Ministerial comnnniion would really imply that ministers of either Church would be accepted, in all respects, on the same terms as ministers of the other Church. This has not been the case in regard to the Presbyterian Church of Canada in connection with the Church of Scotland, and the Church of Scotland, in Scotland, because, though ministers ordained by the Church of Scotland were received as ministers in full standing by the Presby- terian Church of Canada in connection with the Church of Scotland, ministers of the Presbyterian Church of Canada in connection with the Church of Scotland, ordained in Canada under the jurisdiction of the Synod, were not received as 30 ministers in full standing by any of the courts of the Church of Scotland ; that is what I mean by the expression that our connection with the Church of Scotland as to ministerial communion was only ministerial communion in part. Therefore it was not a complete connection in that respect. Q. In the Presbyterian Church in Canada are ordained ministers of the Church of Scotland, coming here, received and aduiitted in the same way as such ministers were before the union into the Presbyterian Church of Canada in con- nection with the Church of Scotland? A. They are. Q. And enjoy the same privileges as they did before the union ? 40 A. Yes. Q. By the terms of the basis of union which has been filed in this cause, is it true that it is left optional Jis to whether ministers shall adhere to the Confes- sion of Faith in its entirety, as stated by one of the witnesses who was examined on the part of the Petitioner in this cause ? A. It is not true. Q. Were you present at the Victoria Hall, or Skating Rink, in Montreal, 287 IS of they isoii, fton, IIK'C- la; i and f the 10 ninis- e was rch in otland was in 20 y that terms to the d, and by the ^•esby- 4ters of thmd, ved as 30 that is notland ere fore of, the as such in con- ause, IS Confes- larained ontreal, (»n the filtt'ciith of June, (Mghteen 'lundred and seventy-iive, when the articles ot union, tlic iKi.sia of union, and the resolutions thereto annexed, and which Inive been prochicod in this causn by the Uev. Mr. Mackerras, were signed ? (Obji'ctt'd to as iin attempt to |)rove the dat(; of the instrument in (juestion, which cannot be proved l)y verbal testimony. Objection reserved by the par- ties.) A. I was present in the Victoria Ritik on the morning of the fifteenth of June, eighteen hundred and soventy-five, dining the time of the whole proceedings which took pliice in connection with the I'ormation of the union in question in 10 this suit. Q. Did you see the said original articles, basis, and resolutions which the said Kev. Mr. Mackerras produced here in Court yesterday ? A. Yes, I did. Q. Will you kindly now examine the same ? A. I will; I now hold them in my hands. Q. Did you see the said original documents, which you now hold in your hands, signed by the parties whose names are appended thereto at the bottom tiiereof ; ami if so, please state when, and whether or not you can identify the parties who signed their names at the bottom thereof? 20 (Petitioner objects to the question as an attempt to prove by verbal testi- mony the date of the signing of the said document and r«;solutions, and the signatin'es thereto. Objection reserved by the parties.) ^1. I (lid see them signed on the said fifteenth day of June, eighteen hun- dred and seventy-five, in the said Victoria Skating Rink. I can identify the writing of the parties who signed their names, that is to say, I identify this as the document which was then signed in my presence by the four moderators of the united Churches. Q. Did you know these four moderators ? A. I did. 30 Q. And you are able to state that they were the moderators, as they repre- sented themselves to be in that document of the said four united Churches? A. I am, for the reason tliat they appeared in the meeting as such, and were surrounded by the members of the several Synods who had made them moderators, and were acknowledged as such by the members of the .several Synods of which they professed to be moderators, and in whose name they acted as moderators. Q. How long before the said basis and articles of union were signed was the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland in session as a Synod in the said Victoria Skating Rink subsequent to 40 their having left St. Paul's Church ? A. Fully an hour. Q. You are a member of the Temporalities' Board, and were at the date of the said union ? A. I was and am still. Q. Can you then state to what extent the said fund, m.inaged by the Board, Respondents, has been relieved by death, of claims upon it since the said union ? A. Rc^'-oTi'ng at six per cent., the capital has been relieved by sixty-two RECORD. In the iSin)erior Court. No. 53. DopositioD of Rev. Jolm JcnkioB, D.D., produced by RcapondentB filed 9th July 1879. — continued. ■ : li 4 m -1 288 UKCOKD. In the Syterior Court. No. 53. DepoHition of Ucv. John JcnkiDH, D.D., ? reduced by tcspondcnts filed nih July 1879. —continued. thuiiHiUHl live liuiKitod dullaiH, tluit is to Hay, that wixty-two tlioiisaiul livo hun- dred dollai'H would oe required to be invested to pay the annuities of the ministers who have either died or removed from the tujuntry since the lifleentli of June, eighteen hinidred and seventy-live. Q. Have you read the petition (lied hy the Rev. Mr. Dobie in this matter and by which he commenced proceedings in this case ? A. It was served on me in the usual way, and 1 havi; read it. Q. Will you kindly state whether (he position which the llev. Mr. Dobie asserts for hinu' "in the said i)etition is (Correctly set forth therein, I mean the qualities which he has asserted for himself? lo (Objected to as vague and not indicating what the position referred to is. Objection resi'rved by the jjaities.) A. 1 state that the Petitioner falsely sets forth on the second page in said petition that he came to the Province of Lower Canada, now the Province of Quebec, as an ordained missionary of the Ohurch of Scotland in the year eighteen hundred and (ifty-two. Q. I imderstand you to say he was not an ordained m!,>^sionary ? A. lie was not ; he was a licentiate of the Church of Scotland simply. Q. What is the po.sition of a licentiate ? A. A licentiate is a man who is licensed by a Presbytery to preach the 20 Gospel, simply. Q. Do his functions end there. A. His official functi(»ns end there. Q. He has no right to celebrate the sacraments, or marry or baptize, or ad- minister connnunion ? A. He cannot administer the sacraments ; he is not a minister in the tech- nical and official sense in which that word is understood \)y the Presbyterian Churches. As I have made a very serious statement in answering this question, I wish to refer to Respondents' E.xhibit 3'. in proof thereof, which sets forth that Petitioner became an ordained minister, or that the Petitioner was ordained, not ;{0 when he came to this country, but at Osnabruck, in the Presl»ytery of Glengarry, in the now Province of Ontario, on the seventh day of October, eighteen hundred and fifty-three. Q. Can a man be ordained as a minister, according to Presbyterian practice and law more than once ? A. No, and never was. Q. Can a man be ordained as a missionary more than once according to Presbyterian usage ? A. No, and when he is ordained as a missionary he is never re-ordained when he is inducted into a parish. 40 (^. Does not the term ordination mean ordii;:; on as a minister? A. That is the only understanding that the tv.rm has, I never heard of a man ordained as a mission\)ry who was again ordained when he became minister of a parish. Q. Can you state where the Presbyterian Church of Canada in connection with the (Jhurch of Scotland is to be found to-day ? A. In the Presbyterian Church in Canada. 289 ^. Will you givo yuiir rouHoiw ? IIKCORD. A. My loasoii is that the I'le.shyteriiiii Church of Caiuidii "n con iiectioii with the (Jhiircli c)i So()tlaml, at thu luoetini' of its Synod on tho fourteenth of June, ., '* . eighti'cn hundivd and ^i my view, and 20 according to this resolution, identical with the Presbyteiian Church of Canada in connection with the Church of Scotland. Q. In the said petition the Rev. Robert Dobie states that he is still a min- ister of the Presbyterian Church of Canada in connection with the Church of Scotland ; is that statement correct ? A. It is not correct in the sense in which it is set forth, or seems to be set forth, in the petition in question. Q. Will you give your reasons for so stating? A. My reason is that Mr. Dobie and the other members of the minority who refused to be governed by the resolution of the Synod to which I have just now liO referred, seceded from the Presbyterian Church of Canada in connection with the Church of Scotland and set up for themselves another Synod bearing the same name, which they had no right to take. Q. And did this not also hai)pen before the said Synod of the Presbyterian Church of Canada in connection with the Chuixh of Scotland had joined the said union ? A. Certainly, while it was still 'a session. Q. Since the union in question, how has the said Board, Respondents, been administering the said fund? 1 mean to say, did they get the authority of the said Synod of the Presbyterian Church of Canada in connection with the Church 40 of Scotland previous to union to administer it as they are now administering it? A. They did. Q. Wore not the Acts of Parliament passed by the Local Legislatures of Quebec and Ontario in reference to union and to the said fund, submitted to the said Synod and approved of by it ? A. We are acting under the two-fold authority of the Acts of the former Province of Canada, and of Amemlments by the Province of Quebec, and under the Act of the Province of Ontario, aa well as under the authority of the Synod. UKCUHD. In the SiiJ'eriur Court. No. 53. Di-])OHitioQ of Rev. John JetikiiiH, U.D., froducod by lespoiidouts tiled Utii July 187'J. — cuntinned. iJ90 Q. From eigliU'cn Imndrcd mid seventy to eigliteon hiiiulrtd and .sevi'iity- four was any opposition made in the waid Synod ol" the Pre.sl»\ terian Chinch of Canada, in conneelion with the Chureh of Scotland, ljy the .>^aid Rev. Robert Dol)ie, or others, to the wiid nnion which wius tiien nnder di.sciis.sion, except as to points of detail ? (Objected as being proof to bo made by record and not by the individnal opinion of an^- witnes.s. Objection reserved by the parties.) A. Not to my knowleilge, ur according to my l)elief. Q. Did the said Synod send delegates to the Assemljly ol the Chnrch of Scotland to ri'port upon the .I>-, U. How docs it iiappen that sou an- a minister both of the Presbyterian ?!'"*^"°*','*''y /(I • commuting ministers in this cause? A. It showed that the Synod felt that it had control over the fund, so far as to reduce the amount of stipend which it originally intended or created to give to the non-coinnuiting ministers. 40 Q- Will you now take comiuunication of the last question with a view to answering it directly ? A. Certainly, it was an alteration of the disposition of the fund, and that is all I claim it to be. Q. Are you prepared to say that that was not an alteration which they were comp(!teiit to make by the terms of the trust created in this cause ? A. Certainly tliey were competent to make it. RKCORD. In the Superior Court, No. 53. Deposition of Rev. John Jenkinfl, D.D., produced by Ilespondonts filed 9th July 1879. — continued. •■VJ 'i! RECORD. In the Superior Court. No. 53. Deposition of Rev. John Jeniiins, D.D., produced by Respondents filed 9tli July 1879. ^-continued. 296 Q. Aie you propaieil to say that the}' were not coinnettnit to make it by the terms of the trii.st created in this cause, and therefore that their making it was no interference with tiie terms of tlie trust? (Objected to, as illegal, it being an attfinpt to elicit an opinion of law from the witness, and as not arising out of the examination-in-chief. Objection reserved by the parties.) A. It seems to me that it was an alteration of the terms of the trust, or a change of the terms. Q. Are you prepared to say positively that it was an alteration of the terms of the trust? 10 A. I decline to state positively on the ground that it is a question of law which I, as a witness in this cause, ought not to be e.Kpected to answer. Q. Is it not a fact that your knowledge on this whole subject of the Clergy Reserves, and th'j constitution of the fund created by the commuting ministers, is not very full at the present time ? (Objected to, as illegal, the question of the Clergy Reserves having not been gone into in tln' examination-in-chief. Objection reserved by the parties.) A. I have not given full attention to the study of this subject which I have to the subjects that weie brought out in my examination-in-chief yesterday. Q. 1 understood ^ou to state in your examination-in-chief that there was 2u no connection between the Church of Scotland and the Presbyterian Church of Canada in connection with the Church of Scotland ? A. You nuist refer to my answer. Did I say so. (J. What is y.our opinion on that subject now ? A. My opinion on that subject is what I stated jesterday, that the Church of Scotland and the Presbyterian Church of Canada in connection with the Church of Scotland never had :iny integral connection — I would say organic. Q. Is it not a fact that the Presbyterian Church of Canada in connection with the Church of Scotland was, to all intents and pur[)oses in this country until the time of the union in question, regarded as the Church of Scotland in this 30 country ? A. It may have been so regarded by some, but by very many of its own members it was not so regarded. Q. Was it not so regarded by yourself? A. It was not. Q. Will you now take comtnunication of a pastoral letter addressed by you in your capncity as moderator of Synod and signed by you, " John Jenkins, D.D., Moderator of Synod " to the Kirk-sessions and congregations of the Presbyterian Church of Canada in coiniection with the Church of Scotland, commencing, ''Beloved Brethren," herein filed as Petitit)ner's Exhibit Z6, and state whether 40 you (lid not write and address to said •' Beloved Brethren," when speaking of the Presbyterian Chmeh of C.inada in connection with the Church of Scotland, the following amongst other sentences: — '' The progress and present i)osition of the " Church of Scotland in this country are largely due to those ministers who, in '' the \ enr eijrhteen hundred and lift v-four, surrendered, of their own free-will, a " part of their share in the Clergy Reserve Fund for the sake of providing for " each of their successors in the ministry a small endowment?" 297 10 it by ig it from jrved , or a terms f law Jlersy ,ors, id t been 1 have re was 20 irch of Church Jliurch iiectiou •y until in this 30 its own by you is,D.D., jyterian n-ncing, ivliL'ther 40 g of the uitl, the 11 of the who, in e-will, ii ding for (Respondents object to the question as endeavoring to elicit the opinion of RECORD. the witness as to the nature of the connection between the Presbyterian Church of Canada in coiinectiun with the Church of Scotland and the Church of Scotland, ... which is one to be determined by documentary evidence which has already been Court. pointeil out. Objection reserved by the i)iirtie8.) A. I did write this pastoral letter, the expression does occur in it and is No. 53. correctly (pioted. The expression here is used popularly and has no legal or y'^^'*'"" ecclesiastical force, for you will see that 1 could not have referred in my letter to j„|,n the legal title of the Presbyterian Church of Canada in connection with the Joukins, 10 Church of Scoti.md, for I used the expression for brevity's sake as well as be- ^■^■, cause the Presbyterian (Jhurch of Cmada in cjnnection with the Church of Scot- FO""ceu by land was often called the Church of Scotland in this country. tiled 9th Q. Are you prepared to deny that it was not by reason of the i(' ntity and July 1879. connection of the Presbyterian Church of Canada in connection with the Church — continued. of Scotland, with the Church of Scotland, that it, to wit, the Presbyterian Church of Canada in connection with the (Jhurch of Scotland, as a branch of a State Church, became entitled with the Church of Scotland to participate in the bene- lits that were derived from the Clergy Reserves in this country ? (Objected to as not arising from the examination-in-chief no reference having 20 been made in such examination-in-chief to the matters asked about in this ques- tion. Objection reserved by the parties.) A. My understanding is that the fact of the Presbyterian clergy in this country being '• Protestant clergy " was the chief ground and the true ground on which they had any claim to the Clergy Reserve money. Q. Do you base that understanding on your own opinion merely, or are you prepared to support it by authority ? (Objected to, as not arising from the examination-in-chief, no reference hav- ing been made in such examination-in-chief to the matters asked about in this question. Objection reserved by the parties.) 30 A. I base it on the letter which was transmitted from the Colonial Office in London to Sir John Colborne, Lieutenant-Governor of Upper Canada, contain- ing a suggestion " That the whole of the Presbyterian Clergy of the Province " should form a Presbytery or Synod, and that each Presbyterian minister who is " to receive the allowance from government should be recommended by that " body By this arrangement the whole of the Presbyterian Clergy of " Upper Canada would be placed upon the same footing with respect to the assist- " ance afforded by government towards their support." It seems to me, there- fore, that the Lnperial Goveriunent contemplated that Presbyterians, whether belonging to the Church of Scotland or not, residing in Upper Canada, had a 40 claim to such Government allowance. Q. Now, is it not a fact that you have just cited from a letter dated October 6th, eighteen hundred and twenty-six, being some live or six years anterior to the time when the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland was formed ? A. Certainly. In giving the preceding answer I thought I had in my hand Respondents' Exhibit o^ . I find, however, it is not so. What I intended to qu(jte from was Exhibit 3,3 pages 13 and 14, the letter addressed by Sir George REt'OllD. In the Superior Court. No. 53. Di'jiosition of llev. Joliii Jenkins, D.D., produced by Hespondcnts filed 9tii July 1879. — continueil. 298 MuriMy \a) Sir John Culi)oi ik?, liated Ui)vviiiiig Stivrt, lii'st of Aiigit.-it, eighU'rii huiulrcil and thirty, in wliicli occur the (bllowiiig words -. " I have the honor '•to iickiiuwlc'dgu the rceuipt of your (iis[)atch of th' tweatv-liftli January, cnclo.s- " ing the co[)y ul" the nioniorial from the l*r(.'shyt''iiaii niinistors of Uppor Canada, " not in direct count clion with the (Jhurch of Scoth'ind, praying tliiit th"y may " be considered entitle 1 to shiire the allow^uice granted to the ministers (d' the " Church of Seothmil from the funds of the (Janadii 0)!n[)'ny hy Lord Bathurst'n " dispatch cf the sixth Ocloher, eight en huiuh'e i and twenty-six It ap[)iars to •• n\v Very desirable, if such a measure coidd b' accom[)lislieil, that tliL- whole of '* the Pr"sbyterian Cleigy of th.j Proviuc.; di )id 1 l.)rm a I'resbyt.'ry or Synod, 1" '' and that each Presb} terinn nunister who is to receive the allowance from gt)V- '• eminent, sliouM he reconuneudcd l>y thit body in like manner as the Ronuiu " Catholie Priests who receive nKsistiuue IVom Government are recommended by *' the Catholic. I}isho[). \\\ thisarr^nig luent the whoKsof the Pr^'sliylerian Clergy " of Up[)er Canada wouhl b' placed upon the same footing with respect to their " innuediate connection with the (Jovernment ol the Province as vvitli respect " to tlie assistance allorded by Government towards their support ; whereas " under the [)resent plan the Government has indirect eonueetion with a part only '• of the Presi)yteriun body in U[)per Canada to the exclusion of the remainder. *' You will therefore consiiler yourself authorize 1 to consult with the leading -O " members of the Presb}terian body in Upper Canada as to th'ir disposition to " adoi)t a union of the nature which I have suggested in this dispatch and re[iort " to me on the subject." Q. Notwithstanding, is it not a fact that the date of Sir George Murray's letter is about a vear precediu'; the date when the S\ no 1 of the Presbvterian Chureh of Canada in coimection with the Church of S. otland was organized ? A. It is; the letter in (juestiou was dated hiined that answer yef*terday, namely, ti'^<" that the Presbyterian ('hurch in Canada is identical with the Synod of the PrcH- byterian (Jluireh of Canada in connection with the (.'hurch of Sa)tland. No. R3. (J. Now, supposing you went to Scotland tvs a di'legate again from the lM)dy IJj'P"**'^'"" that you are now comiectcd with under its present name, the Presbyterian Church j,,),,, in Canada, do you think that your eertificate and credentials would re[)resent you Jenkins, 10 as a minister of the Presbyterian Church of Canada in coniu'ction with the Church ^-^ , of Scotland ? " produced by A ,, ,1 . Kospondonte A. It would not. ^ m,d7,j,, Q. Then, is it not a fact, apart I'rom any reasoning which you may chooso July 187S>. to apply to it, that you are dc /(fcfo, no matter what rights that may imply, — continued. purel} and simply and nothing else but a minister of the Presbyterian Church in Canada? A. It is not; because I am a minister of the (.'hurch of Scotland, in Scot- land, and am eligible to (occupy the pijsition of a parish minister in Scotland? Q. Were you ever ordained tus a minister of the Church of Scotland ? 20 A. No; but by special Act of the (Jeneral As.sembly of the Church of Scotland, Act XV, as set out in the Princi[)al Acts of the said Assembly for the year eighteen hundred and seventy-one, "The General Assembly enacted that "the Rev. Dr. Jenkins, minister of St. Paul's, Montreal, be admitted to the full " status of an ordaim-d minister of thi.'i Church." Q. Is it not a fact, thiit the reason you were so admitted was that you were a distinguished clergyman of the Presbyterian Church of Canada in connection with the Church of Scotland treated as a branch of itself? A. Certainly. Q. l^ou have taken a pretty lively interest in this action, have you not? 30 A. A little. Q. A good deal ? A. Yes, a good deal. Q. You are a Respondent in this Ci\8e ? A. I am. Q. Yon have been here from time to time, not only during your own ex- amination, but during the last three weeks while other witnesses were being examined? A. A fortnight, perhaps. Q. Of course you desire the petition to be defeated ? 40 (Objected to, as illegal. Objection reserved by the parties.) A. I desire to gain my own case. Q. You desire him to lose, which is the converse ? A. No, it is not, I do not desire him to lose in the sense of losing any vested right he has in the fund in question. Q. But according to your view of his rights you desire that ha should not succeed in this suit, do yon not ? •- A. I don't exactly understand the legal bearing of that question. ''■■Ill 11: RKCOUl). la the Superior Court. No. 53. Dt-poiiition of Ucv. John JcnkinEi, D.D., produced by ReHpoudtiuts Klod Uth July 1879. — continued. 302 Q. You know wiml Kwiiig a Huit inciitii'? A. I Imve some idea. Q. Now. do you wish tl'nt he shouM lose this suit ? A. I wish tho Reh*i)ond(.Mts might gain it. It is ho umuhumI i\ (iiu'stioii that it seoma to mo as though it were sonu.'thiiig iiiteiuhid to— you will oxeuse my saying so -trip me up. I ilon't wniit to he eiitrit*)|)uil. and I (hmt ir tend to ho. Q. The long and the short of it is that th" (luesfion afTeets your ciodihility fts a witness ? A. I am deeply interested in this and have gone into it with ;\ desire to succeed. lo (J. When did yon l;i.< never dtaths to the 30 ckerras le total lundri'tl uiii hi- iiig, the ;i^htoon to the 40 vM ? )ieted or [Wii, that for the iov\ have als over which tlie udiiiiiiistiiitorH of the Board had iiu uuiitrol, that it itiiplieH any want uf nkill hi a(hiihii,>4triitiou on thch' part? A. I do not prctfiid tliat it inipIicH any want of skill. (J. ill skill in adniiiiistiation on tlu-ir part ? A. (Certainly not. Q. Now th" Petitioner styles hiniHull' in his petition a nunistt-r of the Prcs- hyterian (Jhnrch of (Jaiiadu in (•oniMclioii witli the (Jliurch lA' Scotlaml ; are you prepared nnetpiivot'aily to 'leny tli;it pretention? A. I deny that he is a minister of the Preshyterian (Jhnrch of Canada in 10 I'onnecition witli the(.'hureh of Seotland as that ('hmrh existed prior to the union of eighteen hundred and seventy-five. I (hcuj the Synod of the so-ealled Pres- hyterian ('hnrch of Canada in ennneetion with the Chiireh of Seotlaiid to be an entirtdy new hody eomiirehending the minority. Q. And that is the reason yon (\cu\ he is a minister of that Church ? A. That is tlu' sense in which I deny he is a minister, and the only sense. Q. Now, you state in your exaininution-in-chief that the Synod decided all matters by a vote of the majority; do you pretend that the Synod could decide by a vote <»f any majority a question upon which it was not competent to adjudi- cate ? 20 (Objected to, as illegal and absurd. Objection reserved by the parties.) A. It is self-evident Q. What is self-evident ? A. It is self-evident that no Synod by a majority could do anything which it was incDinpotent to do. Q. Are you of opinion that the said Synod, even with an overwhelming majority, could alfect the private and civil rights of any member of it provided the decision of the Synod was not legally right according to the law of the land ? (C)l)jected to, as illegal, as trying to elicit the opinion of the witness upon a :5() legal (piestion. Objection reserved by the parties.) A. It seems to me not. Re- Exam hied loithout waiver of objections. Q. When you stated in your cross-examination in answer to the following question : '' Is it not a fact thiit ycMir knowledge of this whole subject of the " Clergy Reserves and the constitution of the fund created by the commuting "ministers, is not vei-y full at tht; present time" that "I have not given that " full attention to the study of this subject which I have to the subjects that were " brought out in my examination-in-chief yesterday," what subject did you specially refer to ? (Objected to, the subject being plainly indicated in the question, namely, the subject of the Cleigy Reserves, and the subject of the constitution of the fund. Objection reserved by the parties.) A. I specially referred to the constitution of the fund, and I meant that I had not such a detailed and accuiate knowledge of the resolutions of the Synod creating the fund as would enable me, without considerable searching, in other words, as would enal)le me without many references to answer the questions that were proposed or that might be proposod on those details. ttKCORJ). /» the Superior (foiirt. No. 53. Dupoititiou of Kov. John JonkiDH, D.I)., produced by UuHpundonU tilfd 9th July 1879. — continued. 40 sp i .-as ' RKCOIU). In the Superior Court. No. 63. Deposition of Rev. John Jenkins, D.D., troduecd by lospondonts tiled nili July 1H79. —continued. 304 (j>. When yoii Htiitcd in your croHH-etnami nation tlmt yoii were luhnittcd to the Clinrcli of Scotland in Scotland l)i'cau.se you wore a diHtingnislicd clerg , n*4.v.i of the Presbyterian (.'Inirch of Canada in connection with the Church of Scothind wliich the said Church of Scotland treated as a branch of it.self, in what aense did yon use the exjjression " bi'iinch of itself ? " A. In tiie sense in which in my I'xamination-in-cliief I useil the word yes- terday, namely, not as an integral |)art, but a.s having identity of origin and of ministerial ommnnion. Notes. In reference to my answer on page 48 of the [)receding deposition (at page i»> 21)5 of this record), beginning : " It may be legal to ask me my opinion," I vvi.sh to niention that I did not mean it to be inferred from my aflirmative answer that the Synod had altered the destinntion of the Tiinporalitics Fund; what I really meant to Hay was, il had altered the princii)le of its distrii)uti()n. To the last answer in my dei)osition to be foimd immediately above on this page I wish to add, that though received by the General A.-^sembly of the ('lunch of Scotland in Scotland on the ground of being a minister ot the Synod of the Presbyterian Church of Canada in connection with the (!hurch of Scotland, I have no doubt that had I applied for afimi.ssion into the Church of Scotland at the time that 1 ap|)lied for admission into the l*l•e^l)yt>'riall Chin'ch of Canada in -0 connection with the Chinch of Scotland, and hid submitted to the General Assembly aforesaiiJ the Lestinionials which I submitted to the Church in Canada, 1 should have been received with as great cordiality as I was on the occasion referred to. And further deponent saith not, and this deposition having been read to him he declares it to contain tlie truth. S. A. Abbott, Stenographer. No. 54. Deposition of Rev. Robert Campbell, produced by Respondents filed 15th July 1879. Schedule No. 69. On this fifteenth day of July, in the year of our Lord one thousand eight hun- died and seventy-nine, personally came and ai)peared Reverend Robert Campbell, ^** minister of St. Gabriel's Church, in the city and district of Montreal, aged forty- four years, a witness pro 1 need on the part of the Respondents, who bi'ing duly sworn, deposeth and saith: I am not relatdl, allied or of kin to, or in the employ of an \ of the })artie.s in this cause. Q. How long ago is it since you were ordained to the office of the ministry, and in connection with what Church were you onlained ? A. I was ordained in April, eighteen hundred and sixty-two, to the office of the ministry in the Presbyterian Church of Canada in connection with the Church of Scotland. Q. Have you been a minister in active duty ever since ? ^^ A. I have. Q. Have you had any experience in attending the church courts of the said Cimrch, and have you held any official position at any time in connection with said church courts, and state what ? 305 (1 to land yea- id of page '^ wish iswcr hat 1 I this II inch >r thu Lud, I lul at ida in '^^ jiKTal ,nada, ;asion him r. huu- l)])oll, 30 forty - duly iiiploy iiistry, office th the lie said u with A. I havt; attendi'(l the iiu'etiiigs of the .siipieiue court of the Church every RKCOKD. year sim-c except once. I was alsi) ("lerk of our Preshytery for many years — of the Pie.sbytery of (luelph in Upper Canada. J**, r Q. Have you had any o[)iK)rtnnitie8 for making yoiu'self accpiainted with Court. the acts and proceedingH of thu .-juid Church, ami its ^xjlity, rules and regula- tions? No. 64. A. I have had many t)pi)ortiMiities besides my official po.sition a.s clerk. As ^pF*"'^'"" eleik, being the legal adviser to the Presbytery, nuule it ncceHsary for me to Uoburt fa,miliari/e myself with the regulations and prooefses of the various church Campbell, 10 courts. produced by Q. Did you ever have your attention cidled particularly to the (pierition of ^^''^Pj"^""*'' the Clergy Reserve B\ind ? ju,y ^m. A. When 1 went to (sollege in eighteen hundred and fifty-three with a view —continued. ■ to study for the ministry, the subject, was very much agitated lx)th in the State and in the Church, and my attention Wiis Cidled lo it at that stage, and until up to the time when the comnuitation was effiicted, in eighteen hundred and fifty- five, I was (juite familiar with the (luestion. Q. Can you [)oint out and explain how it was, or by virtue of what autho- rity, the ministers of the Presbyterian Chureh of Canada in connection with the ;:o Church of Scotland came to have claims upon the proceeds of the sind ('lergy Reserves previous to the time when they commuted their claims through the Synod of the said (.'hurch in eighteen hundred and fifty -five ? (Objected to .is a matter of record to be determined by the acts and proceed- ings of the said Church and the Statutes, Imperial and Provincial, in that behalf. Objection reserved by the parties.) A. The Act 14 George III, cha}). 83, passed in seventeen hundred and tjoventy-four, granted special privileges to the French Roman Catholics in Canada. (Petitioner objects to the witness reading his testimony from written manu- script which he holds in his hands. Witness declares he is not reading his te^ti- :{0 mony, and parties reserve objection,) A. As a counterpart in the way of privilege, the Act 31 George III, chap. 31, clauses 35 to 42, granted privileges to a Protestant clergy in Canada, the Church of England being specially named in the Act. For twenty-seven years afterwards, as far as any record appears, no other denomination than the Church of England claimed a share in the fund created by said Act, although, as appears from the ininutes of Synod of eighteen hundred and thirty-one, page 19, Respon- dents' Exhibit 3,3, the only clergymen of the Church of Scotland resident in Upper Canada, " frequently and earnestly represented to the Executive Govern- '• nient of the Province, the impropriety of creating any distinction between two 40 " Churches having equal claims, and the injustice of extending to one a support " which was witheld from the other," the two Churches, as appears from the con- text, being the Church of England and the Church of Scotland. The first claim of which I can find record on the part of Presbyterians in Canada to share in the benefits of this fund, was by the Presbyterian inhabitants of the town of Niagara and its vicinity. In the year eighteen hundred and nineteen, as appears in the correspondence relative to the Clergy Reserves ordered to be printed by the House of Commons in England, and which printed returns I now hold in my I! Ill ■If V In (he Stiperlor Court. No. 54. Deposition of Rev. Robert Campbell, produced by Respondents filed 15tl) July 1879. — continued. 3Q6 liiuid and exhibit. The Siiid rLleroiice is as tollows: after .stilting who the [)eti- tioners were, they go on to say : '' They therefore hiunbly pray that Your Excel- " leucy would t.ike thi'ir peculiar case into eonsideration, and that you would be " pleased to allow or griuil to the Pri'sbyterian congregation of the town of Nia- " gar.i. the annual sum of one hundred pounds in aid, out of the funds arising '* from the Clergy Reserves, or any other fuml at Your Excellency's disposal." This was contained in a petition to His Excellency, Sir Peregrine Maitland, Lieutenant-Governor of the Province of Upper Cannda. This petition seems to havt- been the occasion of obtaining from the law officers o*' the Crown in Eng- land, an oprves was continued, notwithstanding the afore- said opinion of the law officers of the Crown. This agitation was increased by the fact that the clergymen of the Church of England in Canada had been in- vested with the powers of an incorporation for the management of the Clergy Reserves, as well as by the famous petition of Dr. Strachan, with accompanying ecclesiastical chart, addressed to the Imperial Parliament, ami dated twenty- second April, eigliteiii hundred nnd twenty-three. With, reference to the claims of tlie Church of Scotland, Sir Peregrine Maitland, in a dispatch to Earl Bathurst, Secretary of State for the Colonies, December twenty-seventh, eighteen hundretl 30 an(i twenty-three, a printed copy of which is contained in the said correspondence which 1 have already exhibitid respecting the Clergy Reserves in Canada, used tile following words : " The 31st George III, chap. 31, does not in any manner " recognize or allude to the clergy of the Church of Scotland, and if they can be *' brought within its provisions, it is only on the ground that the general term, '*' Protestant Clergy,' necessarily embraces them. But upon the same construc- " tion the cleigy of all other Protestant denominalious nmst be admitted, and *' there are several denominations in Upper Canada far more considerable in " number of teachers and i-xtent of congregations thin the Church of Scotland." That the agitation was great during all this periou is shown l)y a pa.ssage in the 40 address of tlie Right Honorable C. Poulett Thompson, Lieutenant-Governor of Upper Canada, in the year eighteen hundred .ind forty, as appears in the returns to the House of Counnons aforesaid, under the title '•' Act relative to the sale of Clergy Reserves," \Vhich I quote : " I congratulate you most sincerely upon hav- *' ing thus terminated, so far as depends on your exertions, the agita«^ion of a " question which has now for nearly twenty years been a fruitful source of dis- " agreement in the Legislature and of strife and contention amongst the people of t;, 307 ! peti- Kxcel- uld Vje f Nia- irising tland, ems to Eng- estant 10 V 21' nor I ques- er the a Pro- istland. red the uws:— 20 to share e atbre- i.sed by leeii ill- Clergy janying wenty- ' claims thur.st, iiidred 30 iidt'iice used inauner can be term, mstruc- d, and bie in tland." in the 40 nor of returns sale of )n hav- on of a 3 of dis- eople of " this Province." The Housi' of Assembly of Upper Canada took ground againiit favoring iiny one denomination more than another, in the year eighteen hundred and t\venty-.>y Go\eniment towards their support." In a petition tt> the Right Hon. Lord \'iseount Godeiich, vSecretary of State for the Colonies, the seventeenth of June, eighteen hundred and thirty-one, of the said ministers of the United Presbytery of U[)i)er C innda, they state : " We have hitherto been known by the " name of the United Presbytery of Upper Canada, but owing to the increase of '' our iinndH-rs, as wi'll as the recommendation in Sir George Murray's dispatch, " we have this day formed ourselves into a Synod, to be called the United Synod '• of Upper Canada." In this petition they again assert their right to a share in RECORD. Jn the Superior Court. No. 54. Deposition of Rev. Robert Campbell, produced by Respondents filed 15th July 1879. — continued. r, HKCORD. In the Huptrior Court. No. 54. Deposition of Hcv. Robert Campbell, produced by Respond en t.s tiled 15th July 1879. — am tinned. 310 the Clergy Kescrves. Tlieir I'laiiii to pecuniary assistaiico tVoin Govoniinont was recognized in the year eighteen hiuulreij and thirty-two, as a[)p(ar.x fVoni a dispatch of Lord Viscount Goderich to Lieutenant-Goveinor Sir John Colhorne, dated twenty-ninth of Jnl}-, eighteen hundred and thirty-two, from which I ([Uote : •' I have to re(juest that you will ac([uaint the Petitioners tiiat His •' Majesty's Government will ever lie ready to promote, as far as it is in their *' power, the interests of a (Jhurch so respectahle in point of numl)erH and character " as that which is re^jresented by tiie United Syno'l of Upper Canada. I amthere- " fore desii-ous of receiving your ()i)inion as to the amount ol" peiiuniary as.sistance " which it would l)i' proper to allbrd to the Presbyterian Church Jiot in connec- 10 " tion with the Kirk of Scotland." Lieutenant-Govi'mor Sir John Colborne replying to the dis{)atch lust cited, on the (ifth of Sc^ptember, eighteen hundred and thirty-two, says: " 1 .^hould recommend nine hundred pounds to be placed " at the dis[)osal of the Synod established by the Presbyterians in Ui)pi'r Canada '' who are in communion with the Church of Scotland ; nine hundred pounds at " the disposal of the Roman (Jatholic Bishop, nine iiundred pounds at the dispo- " sal of the British We.sleyan Conference, and six hundred [)ounds at thedisposal " of the Canada Methodist Conference." In a dispatch from Lord Goderich to Sir John Colborne, twenty-second of Novend)er, eighteen hundred and thirty- two, it is stated : " I have to atujuaint you in r.'i)ly that the Lords Commissioners 20 " of the Treasury have sanctioned, at my recommendation, the several grants " which you proposed, and as I considered the memorial of the Presbyterian '* ministers not in connection with the (.'hurch of Scotland entitled to favourable " consideration, I have also recommended that an allowance of seven hundred " pounds shoidd ho made to them on your ai)i)roval of the manner in whijh the " grant is t») be applied." The ministers of the United Synod of Upper Canada had under their charge communicants of the Church of Scotland, as appears from the letter of the Synod to the General Assembly's Counnittee on Cohmial Churches, contained in minutes of Synod of eighteen hundred and forty, page 37, Respondents' Exhibit 3,3, from which T quote : '' At a time when only one or 30 " two ministers from tlie Church of Scotland had settled in Upper (Janada, " several Presbyterian ministers from other bodies in tin; United Kingdom ha i " emigrated hither, and had gathert'd under their care congregations composed, '' in no sm;dl proportion, of persons who originally I)elonged to our communion," meaning the conununion of the Cliurch of Scotland. On the same puge from which I have just quoted the Synod acknowledged that the United Synod of Upper Canada '' were placed on the same footing in respect to pecuniary aid as '• the ministers in connection with the Church of Scotland." A Select Comuuttee ol the House of Commons in eighteen hunr Kchniai'y, ciglit'oii liiindrcd and tliirty-"iglit, tin; niinisttrs of the Climcli of Scotland, tlic niiiiistors ol' the Uiiitcl Synod of Upper Canada, the We^lryan Methodists, and the clei'Liy of tlie (Jhnreh of llouie in Uiiper Cmada received aUowancv ,s from Ciovernment that were derived from the casual and territorial revenue of that Province, as .ippoar.s in an address to the Queen's Mo.st Exe. llent Majesty, of the twenty-si.xth of Felnnary, eighteen hun- dred and thirt}-eiglit, hy the (,\)inmons' House of Assetnhly of Upper Canada. In Tiowei Canada tlu' i)roceeds of the ('lergy Keserves were all ah,-*orl>ed in the expense of management up to the year eighteen hundred and thirty -.«even, as ajjpears in a lett' r from Sir George (Irey, Secretary of State for the Colonies, to 10 Dr. Black, of the tweiity-lifth oI'Maich, eigiiteen hundred and thiity-seveu, and found in Papers relating to the Churches of England and Seotland, ordered to he j)rinted l)y the House of Connuons, and which I now exhihit. In a letter from the lit)!!. Wm. Morris to Sir George Grey, it appe'rs that in eighteen hundred and thiity-seveii not one penny h a i yet lieeii paid to the Preslnterians in Canada from the Clergy Reserves. The Provincial Legislature of Upper Canada hy a majoiity of one on the fourteenth of .May, eightcn hundred aiid thirty-nine, resolved to remit tlie (pi.stion of lh(( mr.nagement of the Chu'gy Keserves, which had l)een in the hands of th ■ Local Li'u'islatuae from eitrhteen hundred and thirty- one onwards to eighteen hundred and thirty- nine, as appears tVom a dispatch of20 Sir George Arthur tt) the Marcjuis of Normanly, in which he says: " Whatever might liave bet ii the legal inter[)retation in tlie present Act of the term ' Protes- " taut Clergy,' it is my duty to state that no such limitation will now satisfy the " people of this country." This hill, passed in eighteen hundred and thirty-nine hy the Legislature of i'i)per Canada, was rel"iisi!d the Royal assent on technical grounds, as a[)p' ars IVom the dispatch of Lord John Russell to the Right Hon. C. Puulette Thompson, seventh (d' Se[)teml»er, eighteen hundre 1 and thirty-niiie, in which he says : — " It was not until the fifteenth of August that I received i'rom " the Lieutenant-Governor the docinnent necessary to en d)le me to fullil the *' requisition of tin constitutional Act of sevente Clergy Reserves. Yet the l)rinciples tif'this Bill were afterwards incorporated in the lm[)evial Bill 8rd and 4tli Vic, chap. 78. The parties entitled to shaie in the Bill thus passed hy the Legislature of Upper Canada Wi re all Protestants, including tlii' United Synod of Biae=^ 313 MoraviiiiiH and Tunkei>. The Right Hon. (,'. PouU-tte Thompson, in forwtirding RKUORD. Upper ('jinuda, Luthenins, (jalvinists, Metliodisth, Congregutionalists, Anabaptists, In the he Bill to Lord John Kusfell, in a despatch of the thirteenth February, eighteen Vypp^^or hundred and tbrly, snys : " The distribution may he provided for either by the Court. " lni)>criiil Pailiament or by the United Legislature, and in either ease I would " recommend that the division should be made according to numbers amongst the No. 54. " dillerent religious denominations of Protestants." In a despatch to Lord John ^^Pp^^^^'^'^ Russell of the eleventh of February, eighteen hundred ami forty, the Right Hon. Robert C. Poulette Thomp.soii, Governor-General, urges that whatever legislation should Campbell, 10 take place in the Impu-ial Parlianuiit, should be in accordance with the wishes produced by of the Legislature of Canada, as appears in the correspcmdence relating to the gj yiRtf"*" Affairs of Canada, a return to the House of Commons ordered to be printed, and juiy 1^79 which I now exhibit, and in vviiich he says : " But above all it is necessary for — continued. '' the continuance of the state of feeling I have described in this Province, or to '' afford a prospect of improvement in the future, that the settlement of the Clergy '' Reserves, which has been agreed to hero, should receive the conlirmation of Her •' Majesty, and that the (juestion should nevur more be returned tor discussion in " Upper Canada." In the same despatch further on he ssiys : " If the establish- " mentof the Union and tlie .settlement of the Clergy Reserves be effected in 20 '* accordance with the wishes of the Legislature here, and if Parliament shall con- " sent to afford some aid in developing the resources and re-establishing the credit " of the Colony when the Unitm shall be determined upon which may be done " without any pecuniary sacrifice on the part of the Mother Country, I am san- " guine as to the; futur(! condition of the Canadas." Loi'd John Russt'll consulted the Judges of England ou the principles con- tained in the bill pa.ssed by the Legislature of Canada aforesaid, as to the meaning to be attached to the terui " Protestant Clergy," and got for answer in eighteen hundred and forty the following : '' We are of opinion that the words " Protes- " ' testant Clergy' in ol George III., chap. 31, are large enough to include :50 " and do include other clergy out of the Church of England and Protestant '• bishoi)s, priests and deacons that have received episcopal ordination. When '• yoiu' Lordships ask if any other clergy are included, what other clergy? we " answer that the Church of Scotland is one instance of such other Prtttestant •' Clergy. And further, in answering your Lordships, if we specified no other *' cli.'rgy than the cleriiy of th(3 Clup'ch of Scotland, we did not intend thereby " that the clergy of no other Church than the Church of Scotland may not be in- ,' eluded umler said term ' Protestant Clergy.' " I am only (pu)ting from memory. But the opinion I have last above referred to is referred to in the minutes of eighteen hundred and forty, Respondents' Exhibit 3,o, in a letter to the General 40 Assenddy's Committee on Colonial Churches : " The recent decision of the Judges of England affirming that inter[)retation of the law which we have always ad- vocated, has clearly established the right and status of every l)ranch of the " Church ol' Scotland planted in a British (jolony." In a letter to the General Assembly of the Presbyterian Church in the United States there is another refer- ence to the same decision, page 4'J. Respondents' Exhibit 3,3 : '• By the unani- " mous decision of the Judges of England the right of our Church to important RECORD. Ill the Superior Court. No. 54. Dt'positioii of Huv. IJoblM't Cain|ibtH, producoil by Rvspoiulouls filod 15tli July 1S7!). — anifiiiital. 314 '• privileges anil iulvtiiitagcs in tlii.s and otlicr CoKmial (lrpomKnci''.si)r tho liritisli '' Ci'(»vvn has been dtterniiiu'd." The Act ii and 4 Virloria. eliap. 78 was. at the iiist:iui't' of tlio Lc\u;islatiin! of C.tnaila. in an address passed the loth ol'.Iulv, eighteen hundred and lifiy, pray- ing Her Maji'sly to do .iway with tiii' provision lor the niaintenanee of religion IVoni the Ch'rgv KeserveH. anieiidod \>y 1C» Victoria, chap. 21, pa.-'wed in eighteen luiiidred and lil'ty- three, giving [)ovver to the Canadiin Legislntnre to doiil with the Clergy Ivsei ves, I'fscrving to i-lergynien ;it that time having rights in tho fund, their vested rights. Aeeoidingly, the Canndian Act, 18 Victoria, clia,}). 2, WHS passeil, secidarizing the Chrgy Riservos, but conscjiving vested rights, that 10 is to siiy, sei'uring to clergymen who were receiving from the Clergy Keservi s at tlu( time of the [) isssagc; ol" the Ini|)erial Act in eighteen hundred and lifty-threo the amoiuit.s to 'vhich they were at that time entitled, for the whole ol" their natural lives, desciibed as •' p.uties to whom tlui faith of tiie Crown is ph'dged " (Petitioner t)bje( ts to the Verba! interpretation ol' said Aet by the witness, inasmuch as the Act speaks l"or itself ;ind is only subject to intei pretation by the Court. Objection reserved by the parti "s). A. In this Aet it was provided that the Government might commute the claims of ministt I's whose lights were tbu • I'eserved, but such comuuitation was to take jdace only through the Churches to wiiieh they respectivi'ly belonged. The 20 ministers in connection with the Presbyterian Church of dinada in connection with the Church ol' Scotland di(i thus comnmte, as appears from the returns to an address from the Legislative Assembly to His Excellency the Governor-General, which 1 now hold in my hand ami exhibit, being Appendix No. 35 to the Jour- nals of Canada for the year eighteen hundred and lifty-six. Q. l)id any other denominations or bodies of ('hi-istians besides the said Presbyterian Chiu'ch of Canada in connection with the Church of Scotland and the Church of Seotland reetive a share of the proceeds of the said Clergy lie- serves Fund or comnuite their claims on the same ? A. They did, as appears from the returns in the same book I have just re- 30 ferred to and which 1 now hold in my hand. Ministers of the late United Synod of the Presbyterian Church of Upper Canada received two thousand two hnmlred and forty jiounds and eleven pence. Wesleyan ministers also received nine thousand .seven hundred and sixty-eight |)ounds and eleven pence. Q. All the references and (juotations you have given in the previous part of your evidence, with the exception of the one you quoted from memory, have been given fnmi +lie said returns which you have here with you in Court, and from the minutes of Synod ? A. Ye.s. Q. Previous to the organisation of the Synod of the Presbyterian Church of 40 Canaila in connection with the Church of Scotland in eighteen hundred and thirty-one, what was the state of the Presbyterian Church in Canada? Was it with organisation, and who composed its ministers? A. For the most part the ministers were not connected with any organiza- tion until eighteen hundred and thirty-one. There h id been a Presbytery of Montreal in existence, for two or three years, about the beginning of the century. This Presbytery, however, seems to have become defunct, and the 315 mm British turo of i^liLi'i'ii 1 with ill tliu iiip. 2, S that 10 rvis at V -three i|" their (1-^0(1 " iliiess, by tlio ite the )n was iJ. The 20 loctioii IS to an oneral, Jour- iL' t. When and how was the said Presbyterian Church of Canada in connec- tion with the Church of Scotland formed, and b}' whom? 40 A. It was formed by ministers and commissioners from the congregations in connection with the Church of Scotland in Canada, met pursuant to agreement at Kingston (m the seventh day of June, eighteen hundred and thirty-one, as appears in Respondents' Exhibit 3,*'. page 4. This Convention had their atten- tion directed to Sir George Murray's dispatch relative to a union between the difleient classes of Presbyterians, and " then proceeded to consider tlie question " of the formation of Presbyteries and a Synod in Canada, wdien, after mature " deliberation, it was moved, seconded and carried unanimously that this Gon- No. 54. Deposition of llev. llobert Campbell, produced by llenpoudentH Kled L^th July ISVJ. — continued. niii I RECORD. In the Superiiir Court. No. 51. Deposition of Rev. Robert Campbell, produced by Respondents filed 15th July 1879. — continued. 81(5 '* ventiou of iniiiirtterH mul eldcTH in coimcctitju with tlio Church of Scotlinvl, " reprcHcntiiig their ivHpoetive congregations, do now form thomsolvoH into n Synod " to Ix! culled the Synod of the Pre.sbylerian Church of Ciinuda in connection with " the Church of Scotland? Q. Wii.s the said Preshyterian Church of Cana< nnd ('(injiii'gatioiiH inidor '' itM caiv, without llic riglit of lovirw, ii|)pi'iil, conipliiint or ri'fiTt'iict' l)y or to " any other Conrt or Courts whatsoever, in any form tsr under any pretense ; ami " that in all niM's that nuiy cona' In-fore it lor judgment (Petitioner ohjec^ts to the eitii'.g of thi.s Aet, inasnmeh a.s the eonti'nts of the volume of nMimte.< of Synod contiiining .■^aid Act have already been admitted as evidence in tlr.s emisc iind an- all completely proved, and the only ell'eet of the citation of the Act In the witncMs, is to iinncees>sarily increase the expen.no of Hi the ca.si'. Objection reserved by the partie.s.) '• till' deci^'ions and deli\ crance.''* of this Synod shall be final. And this Synod " further declares ihnt if any encroiuihiiiciit on tlii.x supreme power and authority " shall be attempted or ihrcatmcd by any [)er.son or |»i'rM)iis, court or courts *' wliat.-^oever, then the Synod iind each iiiid every niembrr theieoi shall to the " utmo.>'t of their power resist nnd oppose the same; and wheretis the words in " the desiginition of the Synod in connection with the Church of Scotland, ** have Ijceii misunderstood or inisrei)re,>^entcd by many per.sons. it is hereby de- '■ cliired that the .«aid woids imply no riglii of jiirisdiciion or control in any Ibrm " whatever '''■ the Cliureh of Scotland over this Synod, but denote merely the 2(» " connection of origin, identity ol' standards, and ministerial and Church eom- " niunion. And it is further emicted and ileclar< d that this supreme and free "jurisdiction is a fiuidamental and essential part of the cctnstitution of this *' Synod ; and that this may be fully known to all those who may hereafter seek '• adinissiiui into our Church, it is enjoiiu'd that all the Presbyteries shall pie- " serve a copy of this Act and cause it to be read over to iind tis; eiited to by every " ministi;r and probationer who nuiy apply for ordination or induction into tiny " pastoral charge." (j. L'revioiis to the [mssiiig of the said Act had the said Chnicli of Scotland in Scotland any right of jurisdic'tion or control in any form whatever, either in ;50 matters spiritual or otherwise, over the said Presbyterian Church of Canada iii connection with the Church of Scotland ? A. It had not and never claimed it. Q. What has tlu^ attitude of the Church of Scfjtland in Sisotland been in that resiiect from the br-giiuiiiig of tlie said Pn'stiyterian Church in Canada ill connection with the Church of Scotland up to the time of the union of Churches in question in this cau.se, nanielv, as to claiming authority over the said Church ? ^1. The attitude of the Cliurcih of Scoihind has always been to allow the Church ill Canada to manage its own ailuiis, and iii'Ver assumed to dictate to the m Synod how it should manage its ail'airs, either ecclesiastically or (lnaiici;illy. Q. Then ^- A cominittee was apjjointed, which rei)orted to the Synod of eighteen hundred and sixty-one, as a})pears from the minutes of that year, page 25, Responilents' Exhibit 3,3. A dis- cussion took i)hice, and it was resolved to postpone further action on the (juestion. Then in eigiit<'en hundred and sixty-six, when the ([uestion again came before the Synod by overture from the E'lesbytery of Ottawa, it was again determined not to proceed further with negotiations. In eighteen hundreu and seventy the congregation of Lindsay, of which the Petitioner had been minister until within a .\0 few weeks previous, sent an overture setting forth the desirableness of a union with the Canada Presbyterian Church, and craving the Synod to take steps in the i)remises, as appears on page 37 of the minutes of eighteen hundred and seventy, Uespondi'iits Exhibit 3,'^. At the same meeting of Synod a letter was received by the ex-moderator, Dr. Jenkins, from Dr. Ormiston on the subject of union, which letter was read to the Synod. Said letter may be found on pages 31 and 32 oi minutes of eighteen hundred and seventy, Respondents' Exhibit 3,3. At this meeting it was resolved to appoint a committee on union. This RECORD. In the. iSuperior Court. No. 54. DopoHitiuri of Rev. Robert Ctinipbull, proituccd bj ReHpondonts Hlud intli July IHT.I. — cuntinual ii RECORD. In the iSttperior Court. No. 54. Deposition of Rev. Robert Ciinipbcll, produced by Respondents filed 15th July 1879. — continued. 320 committee met with eominitteca of the other three Cburches negotiating lor union, namely, the Caniida Presbyterian Cliuroh, the Prewbyterian Church of the Lower Provinces of Britir'h North Ameri<;a, iind the Pn-sbyterian (Jhurch of the Mari- time Provinces, in September, eiglitecn hundred and seventy, and drafted the firvSt proposed basis of union. Q. Now when these negotiations for the said union were initiated was any reference made to the Church of Scotlarid, in Scothmd ? A. Non-^ whatever. Q. llo^ long did the discussion on the said union question take place in the Synod before any formal objecti(m was made by the said Rev. Robert Dobie, 10 or any other, except as to mere details ? A. Except as to details no objection was taken until eighteen hundred and seventy-four, four years after the negotiations were entered upon. Q. Did the Petitioner, Rev. Robert Dobie, tako part in these discussions ? A. He did. Q. When was his first formal dissent? A. His first formal dissent I find recorded in the minutes of Synod of eighteen hundred and seventy-four, page 14. Q. I notice that this is called a protest ; is ther* any difference between a protest and dissent according to Presbyterian procedure? 20 A. The word protest is itself incomplete; it is only part of an ecclesiastical plirase. Protest, when expressed fully should run, protest for leave to appeal, and which is never taken except from an inferior court to a superior. Anything in the shape of a protest allowed in the superior court, though it may be called a protest, is in fact only a dissent. Q. You can show authority for that ? A. I can show authority for that. I quote from "Styles and Procedure in the Church Courts in Scotland " by the Church Law Society of Edinburgh. First, as to dissent : "Any member of the Court may dissent from proceedings " which he conceives may be contrary to the Word of God, the Acts of Assem- ;{0 " bly, or the received ord<^r of this Kirk, and may cause his dissent to be marked " in the Record. By so doing lie saves himself from any censure or danger that " may arise 'rom those proceedings." And then further on under the same head : " A dissent can be given in only by those who were present when the judgment " dissented from was pronounced, and no protest can be taken against a decision " of the Assembly." As a matter of record I was going to point out several in- stiinces in which dissents have been recorded to show that although the word " protest " was allowed on this occasion and on another occasion in the minutes of Synod for eighteen luuuh-ed and thirty-five, page 80, Respondents' Exhil)it, 3,«^. I quote: "Mr. Alexander Mu'' ieson craved leave to enter his protest m " against the namt.-s of certain ministers in the roll of thu Presljytery of Toronto, " namely, Mi'. Peter Ferguson. Mr. Andrew Bell, Mr. James George, and Mr. " Duncan McMiUiUi, on the ground of their not being ministers of the Chiu'ch of " Scotland," yet the effect of this was not to stay procediings, for these names were entered, and they were subsetiucntly recognized even by the Rev, Alexan- der Mathieson as members of Synod, shov/ing that the protest on that occasion implied only dissent. Other di^sents wil' be found recorded in the minutes of eighteen hundred and thirty-tv,o, page 32. 321 union, Lower ; Marl- ed the 'as any iliice in Dobio, 10 'ed and sions ? ^nod of ween ;i 20 siastical appeal, nything culled a rocedure nburgli. Lseedings Asseni- ;5(i marked ^or that le head : idsjjnieiit decision end in- 10 wonl minutes Exhil)it, protest III Toronto, uid Mr. Iiurch of ; names AU'xaii- occasion iiutes of In the Superior Court. No. 54. (Objected to, as generally irrelevant. Obje:;tion reserved by the parties.) RECORD. A. " Mr. John McKen/Je entered his dissent in his own name and in the " name of such as may adhere to him for reasons to be given in," &e. Q. Wh;it is the effect of a dissent or a protest acording to Presbyterian procedure and polity ? (Objected to, inasmuch as it is not competent for the witness to state the legal effect of the protest, it being matter for the Judge to decide. Objection re- J^^^^it'on served by tlie [)arties.) J^^J/^' A. The effi.'ct of a dissent I have explained in the extract from the Proce- Campbell, 10 dure of the Church of Sct)tland. Tiie effect of a dissent is t lunidied iin ;la, and ! Synod icotlnnd ighteon appears 3. who, moneys um the inection 30 to the to the ininis- ith the •ed and iVoetoil, /id coni- on the '1(1 I' tiking I have are set rtv-fivc. ■il'ected linisters 'loviiice of (/anada for the year eighteen hundred and iifty-.^ix, which I now hold in my hand and refer to. I quote a letter : " Gait, 1st January, 1855. " Honorable Sir, '' Being an ineumhent of the Church of Setoland at Gait, in Canada West, *' and consequently allected in my rights by the Bill secularizing the Clergy Re- " serves in Canada, and fully (lisi)osed to avail myself of the commutation clause, " I therefore beg leave to inquire whethei' tlie Government are willing to com- " nnite with me as an individual, or must ai)[)lications he first sanctioned by our 10 " Church. I write this with the concurrence of several of my brethren in this " section of our country who are equally interested and desirous of information " on the subject. " May 1 presume to ask tiie favor of an immediate answer. " I remain, etc., " (Signed) H. Gibson, Minister. " Hon. P. J. 0. CiiAJVEAU." The reply was as follows : " Secretary's office, Quebec, 20 " 24 January, 1855. " Reverend Sir, '• I am commanded by the Governor-General to inform yon in reply to your " letter of the 1st instant, tln't His Excellency is advised that the Government " cannot entertain applications for couimutation from individual ministers unless " the consent of tlie Church to which they belonged shall have been (irst ob- " tained. " I have, etc., " P. J. 0. CiiAUVEAU, Secretary. " Rev. H. GinsoN, Gait." 30 There is another instance, that of the Rev. Wni. Johnson, which is to be found on the same page. Q. TIkmi the connmitation in (juestion was effected under the terms and conditions of the said resolutions ? A. It was. Q. At whose instance was it that the Act incorporating the Board, Re- spondents, was obtained ? A. At the instance of the Synod. The (irst resolution is to be found on page 7 of the miiuites of eighteen hundred and fifty-five, Respondents' Kxhil)it 40 3,'^, appointing the Connnissioners who were appointed by the Synod to obtain connnutation, the same eonunittee to take the necessary steps to get an Act of incorporation for the nianageinent of the general Fund '' the aforesaid Counnis- " sioners to constitute said corporation until the ne.\t meeting of Synod, when four " more members shall l)e added I)v the Synod." In ^"[liteen hundred and fil'tv- si.x, the Synod, as ap[)"avs from the minutes oi' that ye;ir, page 22, appointed tln' Commis.^ioneis aforesaid to manage the Finid, and declared that the Board should be designated " The Board for the Management of the Temporalities' Fund of RECORD. Jn the Superior Court. No. 54. Deposition of Rev. Robert Campbell, produced by lleHpoudents filed 15tli July 1879. — continued P" ill ;.■•; Hi .>;t ^■<*!' .iP- -^ RECORD. In the Superior Court. No. 54. Deposition of Rev. Robert Ciinipbell, produned by Respondent.s filed 15th July 1879. — continued. 324 •' the Prosbyteriim Church of Cuuiuhi in coniuctioii with the Ciiurch of .Scot- '• lund." The limit of an Act of incorporation for the Board wa.s presented to the Synod in the year eighteen liundred and fifty-seven, and may he found on page 17 of the ininuten of that year. It \V!i.>< presented to the Synod and dis- cussed and iidopted. On page 23, minutes of eighteen hundred and lifty-.seven, I find it was moved, " that all !)y-laws which the Boai'd may enact shall be submitted " to the next meeting of Synod or other supreme court, after thge 22 of the minutes of that year, change 1 one of th;' principles declared in eighteen hundred and lifty-(ive, when commutation was resolved up.)n by the Synod, to be finidaiuental piinciples, namely, that after the claims of those minis- 20 ters wh(j had beiu allowed to connnute by the Government were satisfi.MJ, eleven men who, though they were on the Synod roll at the time of the pa.ssing of the Seculari/ation Act, were not alloweil by the Government to commute, because they were put on the roll since May, eighteen hundred and fifty-three, and, therefore, the faith of the Government was not pledged to them —should receive one hundred and twelve pounds ten shillings as soon as the state of the Fund should admit of it, resolving that thereafter, they should receive only one hun- drt'd pounds a year. Further, it resolved, that if the sum at the disposal of the Board should at any time 1)e insuflicient to give one hundred pounds a year to all other claimants I)esides the conunutiug ministers and the eleven [)rivileged minis- 'SO ters just mentioned, " the whole sum be divided among the claimants, but the '• division shall not be continued alter the allowance to each minister has fallen " to fifty pounds." Q. During all that time the Rev. Robert Dobie, Petitioiier, was a member of said Synod ? A. Yes ; during the time that these changes were being effected. Q. He never objected ? A. I fuul no record in the minutes of any objection by the Petitioner. Q. How was said Pre.d)vterian Church of Canada in connection with the Church of Canada, governed, and ex])lain the nature and powers of the governing Ki bodies ? A. It was governed by Sessions, which are composed of the ministers of charges, together with the elders, whose juri.stliction extend only over congrega- tions ; by Presbyteries which are composed of all the ministers in charges within a certain district, and one cdder representing each charge, and their jurisdiction is tivcr all the congregations within their Ijoun Is ; by Synods, com [)osed of all the Presbyteries within their bounds, and they have control over the affairs of 825 8cot- 0(1 to \d on d dis- •eu, I litted it, lor i thun CO the ] , filled ration ade to 30 n on red in by the minis- 20 eleven of the beciiuse !e, and, receive 3 Fund le hnn- 1 of the to all minis- :w t the fallen )U nber iiei n'. n\.\i the V( ■rnmg lo sters of ingroga- within sdictioii of all ll'airri of In the. yerior Court. all the Presbyteries within their lK)nnds; and then by General Assemblies, com- RKCORD. l)0se(l of delegates chosen by Presbyteries, an equal numlier of clerical and lay rei)res(!ntatives. The power of the General Assembly is suprcnn^ ovir all the ^/" ' inferior courtrf. The Synod of tin,' Presbyterian (Jbnrch of Canada in connection f\,., with the Church of Scotlan i up to tlu' (ifteenth of June, eighteeji hundred and seventy-live, was the supreme court of that Church, and had all the [)Owers of a No. 54. General Assembly ovei" the inferior courts. I have described the Synod of the ^fpos'^"*" Presbyterian Church of Canada in connection with the Church of Scotland, jis 2^^^,^,^^" having the same authority and power as General Assemblies in Churches that Campbell. 10 are fully organized, that is to say, supreme control over all the alTairs of the pro^uc^-'d by Church. ' SXS°*' Q. How docs the said Synod act as a governing body ? In what way does jyjy jg^jg it arrive at a conclusion ? —continued. A. By resolutions arrived at by a vote of the majority. Q. And is the vote of the majority binviing on the Synod and on the Church ? (Objected to, as illegal. Objection reserved by the parties.) A. Always. Q. Did the said Synod exercise control over any other funds, money, or 20 property of the said Church besides the said Temporalities' Fund which you have already referred to ? A. It exercised control over all the properties of the Church. It had a stiUKling committee called the Committee on Church Property, whose function was to advise with C(mgregi>tions. It gave orders to all connected with it. An overture was submitted in eighteen hundred and forty, as appears from page 18 of the Minutes of that year, and afterwards adopted, which overture gave orders for the proper deeding of properties in connection with the Church. This com- mittee afterwards prepared a form of deed which all congregations formed from that time forward, were instructed to adopt. Afterwards, the Synod, in eighteen 30 hundred and forty-seven, passed an interim act appointing a model constitution for all congregations ndmitted from that time into the Church, which is contained on pages 21, 22 and 23 of the minutes of eighteen hundred and forty-seven. Re- spondents' Exhibit 3,'^ . In eighteen hundred and (ifty-nine, as ap[)ears from the minutes of that year, j.age 24, said Exhibit 3,'5 the Synod requ( sted the Com- mittee on Church Property to prepare a statement of said property throughout the Province, enjoining Presbyteries to take order that the information required by the Connnittee be furnished to tliom. In eighteen hundred and fifty-five, as a[)pears frotn page 22 of the minutes of that year, in said Exhibit o,-^ the Synod iook cognizance of the case of the London Church property and passed resolutions 40 thereanent. Besides, there was a Finance Committee of Synoil which assessed congregations from year to year and could cut off those that did not pay. The Synod exacted accounts of their finances from congregation.s at all times. The Synod required reports to be given in of all moneys raised, and generally managed the mission funds of the Church. Q. I think you stated the Synod was the supreme and ultimate court of the Presbyterian Church of Canada in connection with the Church of Scotland ? A, Yes. jL,.. RECORD. In the Superior Court, No. 54. Deposition of Ucv. Robert Campbell, produced by Respoudeuts filed 15th July lS7t). — contiiiueil. 320 Q. Will you pk'iisc state what a qiiormri of Synod consists of? A. Acrui'ding to the rules of S} noil a(lo[)tcil in eighteen hundred and sixty- eight, it WHS stipulated that a quorum of Synod nuist be fifteen. Q. Were you present at the S^nod of the said Church on tiie fourteenth and fifteenth .lays of June, eighteen hundred und seventy-five? A. I was. Q. Is it true, as stated in the petition of the said Rev. Robert Dobie, that only several inenib rs of the .said Synod adjourned to the Victoria Skating Rink on the lifteenth of June, eighteen lunulieil -ind seventy-live, and if not, will you please state what really took place ? 10 .1. Tile Synod adjourned IVoni St. Paul's Church to meet in the Victoria Skating Rhik by virtue of the power inherent in it, and in piu'suance of a resolu- tion pass, d on the fourteenth of June, eighteen hundred and seventy-live. Q. Where is that resolution to be found ? A. On p;ige 35 of the minutes of Synod of eighteen hundred and seventy- five, Respondents K.xhibit 3,3. Q. How long was the said Synod ;issembled in the said Victoria Skating Rink on the lifteenth of June, eighteen hundred and seventy-live, before the said union was consummated ? A. I should say at least an hour. I think it was much more than an hour, 20 but I am safe to say an hour. Q. Will you state the nature of the Inisiness which was transacted there in the said Synod previous to the said union ? A. The Synod of the Presbyterian Church of (Canada in connection with the Church of Scotlmid arrived first in the Victoria Hall, or Skating Rink, at ten minutes to eleven o'clock, and constituted by prayer after the adjournment. Afterwards the other Churches negotiating with a view to union entered the Hall or Skating Rink, and when all were present devotional exercises were engaged in, which consisted of praise, reading of the Scriptures and prayer, taken part in by the moderator of the Presbyterian Church of Canada in connection with the 30 Church of Scotland, in conjimction w^ith the moderators of the three several nego- tiating Churches. The rolls were called of the several Churches, all which busi- ness occupied to my mind more than an hour prior to the signing of the Articles of Union. Q. Was not the minute adopted at Monday's diet of the said Synod agree- ing to the consummation of union ami instructing the moderator to sign the Articles of Union, read by the clerk of the said Synod of the Presbyterian Church of Canada in connection with the Church of Scothmd ? ^1. It was read. That was one of the items of business transacted. Q. Do the minutes printed on page A. of Petitioner's Exhibit " BBB," 4ii convey a correct idea of the business wdiicli was done at the said adjourned meet- ing of the said Synod in the Victoria Hall on the fifteenth of June, eighteen hun- dred and seventy-five ? A. They do. The examination of the witness is adjourneJ. 327 I sixty- ith and e, thiit ; Rink vill you 10 k^ictoriii resolu- eventy- Skiiting fure th(i in hour, 20 L'd there on with L, at ten iinnient. the Hull engaged part in k^ith the 30 al iiego- ,eh busi- Artieles )d agree- ■iign the 1 Church " BBB," 40 .■d nieet- een hun- And on this neveiileentli day of July of the year aforenaid, re-appeared the said witness Rev. Robert Cainpb' 11, and continucil his (evidence as follows : Q. Was the form of w. — continued li < i( ': KKCOllD. h the Sitj)criur Court. No. 54. DoiiDsitioii of llcv. llobert CiiHipboU, produced by KospondciilH filed 15tli July 1879. — coil till ual. :i28 A. It uppoiirs from tlic iiiiinitcs died l»y the Rev. Claviii Lung, and marked Zl, that IIh'}' assiimt'd to carry on business in St. Paul's (JliMi'.!h in (luliancc of the regulation which provides tiiat the Synod cannot be constituted without fifteen nu'inljcrs being pri'seiit, as well ns in defiance of the Synod which had nd- journed to the Victoria Skating Rink, that they did. (J. According to the law and procedure of the said Presbyterian Church of Canaila in connection with the Chun-h of Scotland will you be kind enough to state the efteet of the deposition of a minister and in what canes such deposi- tion is made ? A. The effect of deposition in all cases is to «Ieprive the minister deposed 10 of his right to perform any ministerial functions. The form of deposition may be found on page 53 of the minutes of eighte(Mi hundred and sixty-nine, of Peti- tioner's Exhibit " BlilJ," which is as follows : " In the name of the Lord Jesus '* Christ, the King and only Head of this Church, and by virtue of the power " and authority committed by liim to it, and in the name of this Presbytery, I " do now solennily depose you Mr. A B , minister of C , from the " oflfice of the holy ministry, and prohibit and discharge you from exercising the " same or any part thereof in all time coming." At page 47 of the minutes of the same year, it is stated in section five, chapter five : " If upon trial a minister " shall be found guilty, he shall bo admonished, rebuked, suspended from the 20 " functions of the ministry, deposed with or without deprivation of Church " privileges, or excommunicated, as the Court shall deem fit," the phrase em- ployed " with or without deprivation of Church privileges," meaning *' with *' Church privileges " that the person so deposed still remains in the communion of the Church although deprived of his ministerial rights, " without Church privileges," meaning that he is deprived of his privilege of communicating. The regulations of the Church of Scotland, which are the consuetudinary law of the Synod— the principle of the Synod having always been that in such matters as it had not formed regulations for itself upon, it was to be governed by the principles and practicts of the Church of Scotland so far as they were appli- 30 cable to the circumstances of this country — were identical. D ^positiou is the highest censure in the power of a Chmch to pass upon a clergyman. SomfUimes it is in the form of excommunication, but this is rarely had recourse to. Other- wise deposition in ordinary practice is the highest censure that a Church is able to infiict, and in all cases it takes away frotn the minister deposed the rights be- longing to the office of the ministry, and if afterwards he attempts to discharge any ministerial functions it is at the peril of the displeasure of the Church. It is only inflicted for the very gravest offences — heres}' and immorality. (J. To what extent has the said fund, managed by the Board Respondents, been relieved by (ieath or removal of parties having claims upon it since the date 40 of the said union ? A. In eighteen hundred and seventy-five the number of claimants on the Temporalities Board was one hundred and fifty-five ; the number at the date of the entering of this suit was one hundred and thirty -one. The twenty-five must, in the meantime, have either died or lost their claim by removal. H21) rk.d ;e of liout I ;.d- ch of ougli (posi- [)oscd 10 may Peti- JcSUS )ower iry, I n the a; the tea of lus^ter n the 20 hurch e em- ' with mnion !hui'ch •ating. iw of atters ed by appli- SO 1 the times Dther- s able ts be- [ihargo It is i(lent8, le date 40 311 thu ate of ty-five Cross-Examined loUhout waiver of Ohjeciioiia. Q. IIECOKD. You have roffrred .several timi'S to the hiW8 and ruUa of procedure in i^unerior the Presbyterian Cluirch of Canada in connection with the Church of Scothind ; Court. where are these to be found? A. They are to be found in the minutes of Synod for the most part ; and, No. 54. besides^, as I explained in my examiiiation-iii-chief, the practice of the ^y^d ^jf^^^^ '"" always was, when they had not crt'iited regulntions for themselves in any matter, Uobert to be governed by the usages of the Church of Scotland, whicli were derived from Campbell, 10 the same source as those of all other Presbyterian Cliurches, namely, the first and F°'^ucer"mei|)lo8 on which the liiml wus <.'st;ihlish(!il. wiis alt rod hy the Synod in tliiw ro(hicti()n, iuiisnnic.li as we liuy Synod were Huhje(!t to tile uniouiit of the fund availdltle for that piM'pose, the words l)eiu^, '* it' the fund sliiill admit, and as soon iis it shall admit of it V" A. IJeeause 1 know that thf fuiitl at tli.- time when th" said resolution re- ferred to in the examiiiation-in-chief, and passed on tin; thii'ty-first of Mny, eightten hundred ;ind lifty-six, found in the minutes of that year, page 22, did admit of llnir heiiiir paid one inindred tW(dve pounds, ten sliiilings, and other 10 ministers were admitted to the benelils of the fund in addition, prior to the date I have mentioned. Q. Had the said ministers whose stipiiid was lixed at one hundred pounds a year, undri- the action ol" S} nod referred to on pa;j,'e 22 of the minutes of eighteen hniuhed and lifty-si.\, at any time prior to such lixation, an income of one hundred and twelve pounds ten shillings? A. I cannot say. Q. Was the stipend of such ministers lixed at the sum of one hundred ix)unds per annum with their consent ? A. I cannot sav. 20 (^. Do you know of any protest, or ohjection, or dissent from the fixation of such salaries at one hundred [)ounds per annum ? A. Unfortunately I was not a memher then. I have seen none recorded on the minutes, and I know of none. Q. The conunuting ministers have always received their one hundred and twelve pounds ten shillings a year ? A. I believe they have ; so far as I know, they have. Q. You have referred to the Barrier Act as not calling for any overture with reference to the introduction of any mutter of business like the union of Churches in this (ause; was there not subseciuently a standing order passed by 30 the Synod, which is to be found on page 35 of the minutes of May, eighteen hun- (jred and lifty-nine, and i)eing No. 4 of the said standing orders, to the effect following: — The only way in which any ijublic act or standing order mav be compiteiitly moditied or suspended shall be i)y the introduction of an overture or petiticm through th- Committei' on Bills and Overtures, which overture or peti- tion must detail fully the circum^tanoes in which, and the reasons for which, any modification of the terms or tempajrary suspension of the operations of any public act or standing order is required ? A. Such a standing order appears to have h(>en passed in eighteen hundred and fifty-nine with regard to the niodil'ying or suspending of public acts or stand- 40 ing orders. Q. Has that remained in force ever since ? A. It has. Q. Now, was it not by virtue of a letter read by Dr. Jenkins, a witness in this cause, addressed by Dr. Ornuston to liiin, and I'ead by him at the Synod of eighteen humircd and seventy, and to l)e found on pages 31 and 32 of the Synod minutes of tiiat year, that the ({uestio'i '>f the union of the several Presbyterian Churches was first brought formally before the notice of Synod? 381 iKMital n this till sli- iiibject if the on rc- ■ May, 2, did other 10 le date )()nnds itoH oi" Dine of indred 20 Xiition corded i(] and cM'ture ii')n of si'd by 30 V hun- eifeL-t iiav be :,uro or • peti- h, any public ludred • stand- 40 nesH in nod of Synod ^terian A. It waH before the notice of Synod at least half a dozen tiincH previouHly. On thcwe forintr oceiisioiiH I think it was always introduced by overture. On this parti^'^/ ^W .^.v V c?>^ \\ '9>^^ ^> \v '^^r^S Vl^^Q ^^^.%.>^..1^ . %^ <^ % 6^ -ri -^- RECORD. In the Superior Coutt. No. 54. Deposition of llev. Robert Campbell, produced by Respondents filed 15th July 1879. — continued. 832 Q. Will you look at the report of the comiiiittee ho appointed, to be found at page 114 of the Appendix of Synod minutes of eighteen hundred and seventy- one, and do you not there find the following statement : " Extract Minutes of '* the Supreme Courts of the various Churches, appointing committees were read, " as also a letter of the Rev. Dr. Ormiston, of Hamilton, on the ground of which, " and of the sentiments expressed therein, the said action of this Church was " taken ; " and does not such extract express the truth of the matter so far as you lire aware ? A. I believe the extract states the truth, and that the letter of Dr. Ormiston was one of the factors loading to action; but I do not believe that it of itself 10 would have led to action unless the known sentiment of the Church would have justified the Church in taking action. Q. I think you stated that there were overtures before the Synod with reference to the question of union, prior to the reading of Dr. Ormiston's letter to Dr. Jenkins ; a,re tlu-re any records of any such overtures to be found in the minutes directly bearing upon the question of union, on which any action of the Synod was taken, and whicli were followed to a conclusion ? A. Yes ; the Synod took action on thein ail. I have already given them in my examination-in-chief. Q. But can you state that the union resulted in the end from the action 20 taken (m any of these overtures that you have referred to, or did it not result ultimately from the action taken on this letter to Dr. Jenkins ? (Objected to, as illegal and not in i.ssue. Objection reserved by the parties.) A. The discussions on the overtures that were introduced from time to time, in successive years, prepared the sentiment of the Church for union, i r. Ormiston's letter seems to have been the immediate occasion of leading to the suc- cessful negotiations for union. Q. How long was union talked about and discussed ? A. As far as our Church and one of the bodies negotiating was concerned, the subject hat' ')een tjilked over for thirty years. 30 Q. What were the diiliculties in the way of union ? (Objected to, as illegal, not in issue, and not arising out of the examination- in-chief. Objection reserved by the parties.) A. The chief difficulty in the way, in my estimation, was that the senti- ment of many members in the si-veral Churches was averse to union. There were really no very serious practical difficidties. Q. It was a matter, though, of very considerable negotiation before a basis of union could be arrived at? A. It was. Q. What were the chief features of that negotiation ? 40 (Obj( cted to, as not m i.ssue, and not arising out of the examination-in-chief. Objection reserved by the parties.) A. The sul)jects that occasioned greatest difficulty were, I think — the subject of all others was the college question. Then the rpiestion of the proper disposition to make of this Ttnnporalities' Fund in issue in this suit, and the adjustment of the Widows' antl Orphans' Fund. These were the three chief difficulties. 3:58 Q. Was there no diHCussion with reference to doctrinal questions in connec- RECORD, tion with the proposed union ? A. None whatever. /" '^* ■. Q. Was there no difficulty raised with reference to the Confesion of Faith, Court. more particularly the twenty-third chapter of it? • .• (Objected to, as illegal. Objection reserved by parties.) No. 64. A. I don't think the twenty-third chapter of the Confession of Faith was ^e^«ition , . T J ir of Rev. ever mentioned. Robert Q. Had not the said basis of union to be framed in such a manner as to Campbell, 10 meet the views of certain of the Churches, or members of the Churches, upon produced by ecclesiastical questions, more particularly upon the question of the twenty-third ^^j'lKfu"*" chapter of the Confession of Faith ? j^ly jg-jg (Objected to, as illegal and not arising out of the examination-in-chief, Ob- ^-continued. jection reserved by the parties.) A. Difficulties were raised on the part of some in one of the negotiating Churches on asking that something should be inserted, not in the basis of union but in the preamble, as to the headship of Christ, but the twenty-third chapter was never mentioned so far as I know. Q. How do you account for the clause referring to the power and duty of 20 the Civil magistrate being introduced into the said basis of union ? (Objected to, as illegal and not in issue, and not arising out of the examina- tion-in-chief. Objection reserved by the parties.) A. Some parties to the negotiation for union had the opinion that a portion of the Con'e.ssiori of Faith might be construed to allow intoierent principles. The Syr.od of the Presbyterian Church of Canada in connection with the Churdi of Scotland did not believe that said portion of the Confession of Faith could oe rightly interpreted to justify persecuting principles, and therefore they had no difficulty or hesitation, so far fw they were concerned, in declaring that they be- lieved that said portion of the Confession of Faith did not sanction any prin- 30 ciples or views inconsistent with full liberty of conscience in matters of religion. Q. You are one of the members who enjoy a stipend from this fund? A. Yes, 1 have up till the thirtieth of June last been in the receipt of one hundred dollars each half year. Dr. Jenkins has one hundred dollars each half year, and Professor Mackerras, being one of the commuting ministers, is in receipt of two hundred and twenty-five dollars each half year. The examination of the witness is adjourned. I i And on this eighteenth day of July in the year aforesaid, re-appeared the said witness. Rev. Robert Campbell, antland, or that an official aimouncenient to that elTect v.'as ever sent or '* authorized to bi' sent by the Presbyterian Church of Canada in connection with '* the Church of Scotland?" 40 A. It is very easily reconciled. There are two kinds of deposition — two classes or kinds of depositions ; there is the deposition which consists of depriva- tion of the office of the ministry altogether, what uuiy be called stripping a nnm of his gown; and there is a class or kind of deposition which consists of merely declaring a man no longer a minister of that particular church or body, without deposing him from the ministry. In the minutes of Synod for eigliteen hundred and sixty-seven, memoranda, page 58, there is an instance of a deposition which RECORD. In the Superior Court. No. 55. Depositioa of Rev. Qavin Laug, produced by Respondenta filed 15th July 1879, IH ¥f'm m 340 •RECOKD, In the Superior Court. No. 55. Deposition of Rev. Gavin Lang, Sroduccd by Lespondents filed 15th July 1879. — continued. ■^^■■f' I. !; did not go beyond, simply declaring the pewon tliero mentioned no longer a minister of that particular Church or Ixxly. That is the case of the Kev. Mr. Macmorine. In the memoranda of Synod minutes for eighteen hundred and seventy-one, page 50, there is a case of deposition which consists of the depriva- tion of the office of the ministry, jr, as it is called, strii)ping a man of his gown. That is the case of Rev. W. M. Inglis. There is provision in the polity of the Church for such cases. In the minutes of eighteen hundred and sixty-niuf, page 47, section three, chapter six, there is this provision in the polity : " When a " member, elder or minister shall renounce the communion of the Church by ''joining another denomination without a regular dismission, if the denomina- lo "■ tion be evangelical and he be in good standing, the irregularity shall be " noted in the records of the Court having jurisdiction, and his name erased." That applies to Mr. JVIacmorine's case. In the minutes of the same year, page 47, section five, of page 5 of the polity is to be found this provision : " If upon " trial a minister shall be found guilty he shall be admonished, rebuked, " suspended from the functions of the ministry, deposed with or without depri- " vation of Church privileges, or excommunicated, as the Court shall deem fit." If any announcement was made of Dr. Snodgrass' deposition it was unofficial and unauthorized. Q. Nevertheless you have sworn in said affidavit that it was false that Dr. 20 Snodgrass was deposed from the ministry, and the said minutes show that he was deposed from the ministry of the said Church, and of the only Church that the said Synod professes to have power over ; how, then, do you undertake to recon- cile your two statements ? A. I have already explained how the statements are reconciled by a refer- ence to the two classes of deposition. Q. Seeing that in your affidavit there is no reference to two classes of de- position, but you have made the statement that Dr. Snodgrass never was deposed from the ministry, do you mean now to say and to persist in the statement that he never was deposed by the said Synod referred to in the said minutes ZI ? 30 A. I never said such a thing, I have already ytated that he was not deposed from the miniutr} by the Presbyterian Church of Canada in connection with the Church of Scotland, and have already fully explained as to the two classes of deposition. Q. What, then, was he deposed from if he was not deposed from the ministry ? A. He was deposed from the ministry of the Presbyterian Clmrch of Canada in connection with the Church of Scotland, that is, he was declared no longer a minister of that particular Church or body. Q. Then was he not deposed from the ministry of that Church ? • 40 A. He was declared no longer a minister of that particular Church. Q. But if the minutes say he was deposed from the ministry of that Church, how can you t wear that he was not deposed from the ministry ? A. I never swore he was not deposed from the ministry of the said Church. Q. Do you swear he was not deposed from the ministry ? A. I have already explained the two kinds of deposition. ' * ;,: ii li. 341 Q. (Jould Xhti f»aid Synod dci)O80 him IVum any othor ininiHtry but the HBCOKD. ministry of tho Church which thoy iissumed to holong to, to wit, that culled the — — Presbyteriiui Church ol'(.'anndu in connection with the Church of Scotland ? „ '*.* A. They could for iininorality or other cause proved depose him from the Court. ministry altogether. Q. Could they depose him from the ministry of the English Church? No. 56. A. They have no jurisdiction over the Pmglish Church. JfT*'"" Q. Then, they could only depose him from the ministry of their own (j^yj^ Lq^j. Church ? produced by 10 A. They could depose him from the ministry altogether for cause shown R68p6ndent8 and proved. J'^d mu^ Q. If he was oidy a minister of the Church in question could they depose continued. him from the ministry of any other Church ? A. They could depose him from the ministry of the Church to which he originally belonged, as in the case of Mr. Inglis, of Kingston, for immorality raid for other cause proved. Q. Now, is it not a fact that they could only depose a minister froin the Church over which they had power? A. They could depose him from the ministry altogether, which, of course, 20 deprives him of his gown. Q. But how do you mean " the ministry altogether ? ' (Petitioner objects to the entire examination respecting the deposition of the Rev. Dr. Snodgrass, as being irrelevant to the issues, and only waive argu- ment on the objection owing to the absence of a Judge. Objection reserved by parties.) A. I refer to ray explanation of the two classes of deposition. Q. Now, will you kindly point out fiom the minutes of Synod of the said Church, any rule or law which authorise the deposition of a minister from the ministry, unless such minister is thereby deprived, as you say, of his gown, or of 30 his privileges as a minister, and of all his ecclesiastical functions ? (Objected to, as illegal and irrelevant to the issues. Objection r^^served by the parties.) A. I have already referred to section three of chapter six of the polity of the Presbyterian Church of Canada in connection with the Church of Scotland, on page 47 of the minutes of Synod for eighteen hundred and sixty-nine, which answers the question. Q. Is it not the case that in tli'^ suid section you have quoted^ section three, there is only one kind of deposition spoken of, namely, this: " That if the deno " mination that the minister joins be heretical, he may be suspemled, excommu- 40 " nicated, or deposed, without trial, any further than the Court's a-scertaining " and recording the fact of his joining the said denomiiuition," and does not such deposition convey the loss of the rights which you have spoken of ? A, Part of the section alluded to relates to heretical denominations. Q. Does not the word " deposed " there convey only the sense that you have alluded to, namely, that if a minister be deposed under that section, he loses his privileges and his gown ?. A. T>)at part of the section has a diametrically opposite reference to the 342 ;{■ t% i* RECOBD. former part, the otic iilludiiig to HoceHHioii touii evaiigeliciil (lenoinination, and the other to a heretical deiioinimitioii. Q. You have not aiiswertd my qucHtioii ; kindly state, if you can show Jn the Superior Court. No. B5. Deposition of kov. Oavin Lang, produced by Respondents filed 15th July 1879. — continued. that the word " depo.sition," or the word " depose," is used in the said minutes in any other sense except in the sense of deprivation of privileges, and of the minister's gown, to use your own expression V A. The word dejwsition nppears there in an entirely different connection. Q. Then iii what connecticm does it appear ? A. 1 have already explained, it applies to a secession to a heretical denom- ination, instead of an evangelical. 10 Q. Certainly, but is it not a fact that a person under that section seceding to a heretical denomination, woidd thereby be liable to be deposed and deprived of his gown, and all his ecclesiastical privileges ? A. I am not prepared to say, Q. Do you mean to say that a man found guilty of heresy would pimply be declared no longer a minister of the Church and is not liable to be deposed from the office of the ministry in the Church to which he belongs ? A. There is a difl'erence between trial for heresy and joining a heretical denomination. Q. What is the difference ? 'SO A. I am not prepared to say. Q. Can you point out any other law which justifies you in saying that the word * deposed ' is used, according to the practice of the Presbyterian Church, in two senses ? A. I have already referred to the fifth section of the fifth chapter of the Polity of the Presbyterian Church of Canada in connection with the (/hurch of Scotland on page 47 of Synod minutes of eighteen hundred and sixty-nine, which gives the other class of deposition. •, Q. What are the words there ? A. " If upon trial a minister shall be found guilty, he shall be admonished, 30 " rebuked, suspended from the I'unctions of the ministry, deposed, with or without " deprivation of Church privileges, or excommunicated, as the court shall deem "fit." Q. If a minister is deposed in the sense you have last mentioned, with Church privileges, is he not, nevertheless, a deposed minister ? A. I am not sufficiently acquainted with the intricaciea of the question, but the reference in the section above cited is to immorality or other personal mis- conduct. " Q. Wnat do you mean by deposition with Church privileges in such a case ? ' ^ not a man deprived of his gown ? , 40 A. It is a matter for the Synod to determine. . ' (••.■< Q. Then you do not know ? ■ . i, ,„ .,t. A. I am not prepared to say how the Synod would look at any case or cases. Q. Are you prepared to say whether such a deposition as last referred to, with church privileges, would not, as a matter of church law and procedure, in- volve the loss of the minister's gown as long as that deposition was in force ? ^ ■ ^* A. It would rest with the Synod or Presbytery to say so. • ' 343 r.* A. It i."? the handwriting of the Rev. Robert Burnet. .#,.;>;j'' Q, Is it his signature ? .. . .jjJtT;. ^ J.. A. It is his signature. • ..' u />. ..rjiriiv, "..ij :-:i, . v , ;:; v -^Ji'^'ox t'V (( m H 1 '■) f ! I' !' I I: at >' 1 RECORD. In the Superior Court. No. 56. Deposition of llev. Gavin Lnng, Sroduccd by LoHpondcnts filed l.'ith July 1879. — continued. Ui Q. Did you ever see that letter before ? A. Never. Q. Were you ii nienilMT of the Syuodiwil CoinnuHssion of the aaid Synod in the yenr eighteen liundrod and seventy-.se ven ? A. I Bupi)o.se I rnu.st have been. I do not remember anything about the Commission. Q. Do you itnow where tlic miinites of said Cominission wore kept? A. I have nothing to do with the minutes. Q. Was it not (^h-arly iMnh-rstood, cither by the said Synod or by the siiid Synoilical (Jommission, tiiat following up the said resolution, which lii\s already 10 been referred to, occurring in the siiid minutes with reference to the deposition of the .said Dr. Snodgrass, thi't tlie .^aid elcik wns to si-nd either n\\ extract from the said minutes or an inlimiition of such deposition to Scotland ? A. Most certainly not. Q, If you have not the said minutes in your possession, and were not pre- sent at all the meetings of the siiid Synodical Connnission, how can you under- take to swear that it was not .so understood or agreed to ? A. 1 never said any such thing. Don't put words in my mouth that 1 did ))ot use. I never said that I had not the minutes of Synod in my possession. I was under the imi)ression that you were asking about the minutes of Synod 20 and not of the Synodical Commission. And I never said that J was not at the meetings of Commi.ssion. Q. Have you the minutes of the said Synodical Commission in your pos- eession ? ^ A. No. Q. Do you know where tiiey are ? A. I have no personal knowledge. I fancy they must be among the archives of the Church. Q. Who is the custodian of the said minutes ? A. 1 fancy, in most cases, the clerk of Synod. 30 Q. lu this case 1 want to know ? A, I cannot tell. Q. Were you present at all the meetings of the said Synodical Commis- eion ? A. I fancy I was. Q. Then clo you state positively that said Synodical Commission never authorized the Rev. Robert Rurnet, clei'k, to send an intimation to Sa)tland to the Moderator of the Rresbytery of Langhohn, to the elfect that Dr. Snodgrass had been deposed, as stated in the said minutes ? ., A. Most positively. 40 Q. Then dO you state that the Rev. Robert Rurnet has stated what is false in the said letter which you have just idcntided, when he says: "I am directed " by the Synodical (Jommi.-sion of the Presbyterian Clmrch of Canada in connec- " tion with the Chujch of Scotland to represent to the Presbytery of Langholm, " etc., etc." ? (Objected to, as illegal and imfair, on the part of the counsel in attempting to make it appear that the witness stated that the contents of said letter were 345 ynod in lOUt tlu! ? the Hiiiil alreiidy lo 'position ict tVoni imtruo, wlioroiiH tho iinHWciH of the witness would go to imply that the sending of its contents wuh unautliorizcd. OLjcciion rL'8er\o(l by the parties.) A. 1 have nev(!r seen the letter till now and have not read it. Q. Qui'Htion repented. A. 1 inn not called upon to Htiite anything of the kind. Petitioner objects to the illegallity and the irrelevancy of all the foregoing examination, :ind r^'lying iqion .said objection, mid the objections entered seriatim through the record, di'cliiies to cross-exannne the witness. And further deponent saith not, and this deposition having been read to 10 him, he declares it to contain tlu; truth. 8. A. AuiiuTT, Stenographer. UECOllD. //» the Huperior Court. No. B5. Diiponition of llov. Qiiviu Luujj;, {roduood by luHpcadoDtH tilud 16th July 1879. —continued. 4 not pre- )U nnder- luit 1 did ssion. 1 »f Synod 2 No. 2100 The Rev. Robert Dobie, Schedule No. 71. Superior Court. Petitioner. No. BG. Petitioner's Jiist of Exhibits, filed iBt Aup^st 187!). vs. " Hoard for the Management of the Temporalities Fund of the Presbyterian ('lunch of ('aniida in connection with the 20 Church of Scotland," 67 (//., ...... Respondents. List of Exhibits fded i»y PetitioiK'r in this case upon the case generally and in support of his answi'r to tlu> ])etitiou to dissolve and suspend the writ of injunc- tion herein and on the merits of the case. ExuiniT HUH. Three voliniuis cornpiising the Minutes from 18;]1 to 1875 of the Synod ol the I'resbyti^rian (Jinireh of Canada in connection with the Church of Scotland. (Filed with former List.) ExiiiHiT liL. Digested' the Synod Minutes of the Presbyterian (Jluirehof Canada. (Fileil with lurmer List.) ExilllUT M\. l^•()l«^>^l served iiy Petitioner, Joseph llickson and others, upon the ;{0 modeiiitor of the Synod of the l*resbyti;iian (!hureh of (Janada in connec- 41) tiou with the Church of Scotland against a union with other Churches. (Filed with fori'ier List.) ExHiiitT ('('. Pamphlet entitled " Faults and Failures of the late Presbyterian Union !:i Canada, by Douglas Hrynnier." (Filed with former List.) ExnuiiT EE. A(ls and Proceedings of the first General Assembly of the Pres- byterian Church in Canada. (Filed with fgrunr List.) at '■t I 346 ii RECORD. Exhibit KK. Missionary Record 8 Cliurch of Scotland, containing announce- ment of the appointment of Petitioner as a minister. (Filed with former List.) In the Superior Court. No. 56. Petitiouer'si List of Exhibits, I filed Ist 1 August 1 1879. —rcontinue^ Exhibit FF. Historical and Statistical Report publislu d by order of the s-xir Synod of the Presbyterian Church of Canada in connection with the Church of Scotland. (Filed with former List.) Exhibit DD. Cyclopaedia of Religious Denominations, containing authentic accounts of the different Creeds and Systems prevailing throughout the world, written by members of the Presbyterian bodies. (Filed with former List.) 10 Exhibit PP. Styles sind Procedure in the Church Courts of Scotland. Exhibit X. Blank form of cheque, used by the Temporalities Board of the Presbyterian Church of Canada in connection with the Church of Scot- land. Exhibit Z 1. Acts and Proceedings of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland on and since June 15, 1875. Exhibit Z 2. Letter to the Rev. Gavin Lang, from the Rev. R. H. Muir, on be- half of the Colonial Committee of the Church of Scotland, recognizing the Presbyterian Church of Canada in connection with the Church of 20 Scotland. Exhibit Z 3. Letter from Rev. G. W. Sprott to Rev. Gavin Lang. Exhibit Z4. The Confession of Faith and Larger and Shorter Catechisms, con- taining also the form of Presbyterial Church government. Exhibit Z 5. Extracts from the Acts and Proceedings of the General Assembly of the Church of Scotland. Exhibit Z6. Pastoral charge of the Rev. Ur. Jenkins, as Moderator of the S\nod of the Presbyterian Church of Canada in connection with the Church of Scotland in 1869 — in which, at page 5 — He styles the Pres- byterian Church of Canada in connection with the Church of Scotland 3(i as the ''Church of Scotland." 1st August, 1879. Macmaster, Hall & Greenshields, Attorneys for Petitioners. (Endor.sed.) Petitioner's List of Exhibits — filea 1st August, 1879. 347 r. II lounce- l with he S'lir ith Ihe thentic )ughout (Filed 10 of the of Scot- hurch of ce June r, on be- ognizing tiurch of 20 sms, con- ^ssenibly of the ith the 10 Pres- Scotland 30 ioners. Schedule No. 72A. No. 10 The Temporalities' Board of the Presbyterian Church of Canada in connection with the Church of Scotland. Montreal 187 To the Cashier of the MERCHANTS BANK OF CANADA, Pay to or order, -».r-r^ -Kz—- —— ~~- r---vr-x3 i^r^-j-sa Dollars Chairman. , Secretary. The Burlsnd-Desbarats Litb. Co. Muntroal. (Endorsed.) Petitioner's Exhibit "X" ut enquete— filed 1st August 1879. (Paraphed) G. H. K., Dep. P.S.C. RECORD. In the Superior Court. Nc. 67. (Petitioner's Exhibit X.) Blank form of cheque, used by the Temporali- ties Board of the Pres- byterian Church of Canada in connection with the Church of Scotland, filed Ist August 1879. Schedule No. 73. At iMont real, and within St. Paul's Church, there, Tuesday the fifteenth day of June, one thousand eight hun- dred and seventy-five vears : The which day, the Synod of the Presbyterian Church of Canada in connec- 20 tion with the Church of Scotland, met according to adjournment and was consti- tuted with prayer. The minutes of yesterday were read and approved of. Whilst the meeting was in ses«ion, Charles Cushing, Esq., notary public, entered, and addressing the moderator then in the chair, read a protest against the moderator, and any other members of the Synod leaving the Church to repair to the Skating Rink for the purpoHo of joining another ecclesiastical body or bodies, in violation of the rights of those who remained as members of the Presbyterian Church of Canada in connection with the Church of Scotland. Shortly thereat the moderator and others left the place of meeting in 30 pursuance of a resolution passed yesterday, against which a protest was recorded, signed by the Rev. Robert Dobie and others. True copy, Gavin Lang. No. 58. (Petitioner's Exhibit Zl) Ac*s and Proceedings of the Synod of the Pres- byterian Church of Canada in connection with the Church of Scotland on and since June 15, 1875, filed Ist August 1870. 348 KKOORI). In 1U Superior Court. .No. 58. (I't'titionor's Kxl.ibitZl) Acts iiiid I'rnceodings of tho SynoJ of thu Pres- bj'tcrian Church of Canada in connection with the Church of Scotland on and since June 15, 1875, filed 1st August 1879. — continued. On til'' niotkiator vaoaling thu clijir, the Rev. Rob rt Doblo, ux-inudorator ol' the Synod, took tliccli:iir in ticcorduuce with the ii^agi s and hiwriol' thoChurcli, and in viiw of tho j^olemn cMrcumstances in which the Synod was phiced by the withdrawal of" many of tho brethren, engaged in prayer for the Divine guidance. The Uev. Robiu'L Biirnrt was rccjuested to act as clerk, pro tenq*. . The Kev, Hugh Niven, retire d minister, and Mi'. Dougbis Brynnier, being present, weie invited to sil and deliljerate. It wa.>^ mtwcd by Mr. Burnet and seconded by Mr. John Macdonald, thut the i'ollowing coiirnitteo be appointed to tlraw up a letter to the (Joloni;il Committee of the Church of Scotbmd, thanknig them and tlnit Venerable body, lor the words lo of encouragement sent to this Synod, in their recent deliverance, viz : Mr. David Watson, iVlr. Douglas Brymner, Mr. Brodie, Mr. John Macdonahl, Mr. Thos. Mncpherson, Mr. Willinm Simpscm, and Mr. Robert Burnet, which was agreed to. Jt was ordered that a letter be prepaied and circulated among the members !U)d atlherents (jf the Church, stating the present circumstances: The moderator, clerk, Mr. D. Wilt^on, and Mr. Brodie to be the connnittee for this purpose. The I'ollowing committee was ai)pointed to watch over the legal rights and interests of the Church, iind to co-operate with similar committees in the Lower Provinces; Mr. Robeit Burnet. Mr. J. S. Hunter, Mr. Douglas Brymner, Mr. William McMillan, Mr. T. A. McLean, with power to add to their number. 20 The livv. Cavin Lang, of St. Andrew's, Montreal, now in Scotland, was ap- point''d f; represent the Church before the Colonial Committee of the General Assembly. It was agreiMl to snnction the publication o\' a monthly periodical, to repre- sent the position of the Church, and to be a means of communication among the difterent congregations. H was propo.-ied and agree 1 to unaniuKuisly, that \.\w. protest lodged yester- day against the resolution to repair to the Vi(!toiia Hall, for the purpose of con- su.imiating the proposed union with other Presbyterian bodies be engrossed in the minutes. 30 The protest is in these terms : — We, ministers and elders, members of t'lis Synod, heartily attached to the Church, hereliy dissent iVom the resolution of this court to repair to tlie Vic- toria Hall for the purpose of consuirnnating the proposed union wiln the other Presbyterian bodies, and theieby to form tho General Assembly of the Presby- terian Clnuch in Cana>sed in 30 to the Vic- other •esby- it the roh of I lias sessed We 40 •ch of !i' our name with. ) posed onteni- G. 0( In, the Sujierior Court. No. 58. (Petitioner'a Exhibit Zl) Acts and ProceedingH of the Synod of the Pres- byterian Cliurch of Canada in connection 349 plated arrangements for tiie consummation of the projwsed union, and declare, KECUKD that if consummated, we will claim and continue to be the Presbyterian Church of Canau.. 1: connection with the Church of Scotland. Robert Dobie, Wm. Simpson, Robert Burnet, David Watson, j. s. mullan. W. McMlLi^AN, 10 ' TUGMAS Mac?HERSON, RmERioK McCHJ"y.ov, JOUN '-> ,-, )-'^.,, JOJIN 1»^ .CUONALD. It was then agreed that the Synod .>sbytery seat at Lancaster; Victoria, Toronto, London and Sargeen to be joined to the Presbytery of Hamilton, with the Presbytiry seat at Hamilton. It was resolved that a petition be Ibrwarded to His Excellency the Gover- nor-General, signed by the moderator and clerk, requesting that assent be not given to the Acts passed by the Legislatures of the Provinces for the imion of certain Presbyterian bodies, and other Acts beari ig thereon, and that Mr. Li'ng, Mr. Douglas Brymner, Mr. R. G. Cassels, be appointed i committee to present ^r. the same. The Synod resolved that the following momber.s be appointed a committee, with Synodical powers to mature morsures for the meeting of Synod in June next, to visit congregations desiring advice and assistance, to collect means for defraying legal and other Synodical expenses, and generally to undertake all business of the Church requiring inmiediate attention, and to report to the next meeting of Synod, the following to be the names of the connuittee: The Very Rev. the Moderator, Revds, TIjos. ^^■ '.pheisun. Win. Simpson, John Davidson, John Mac- donald, David Watson, Peter VV^alson, Robert Burnet, Neil Brodie, Gavin Lang, Mr. William McMillan, Roderick McLeod and Roderick McCrimmon ; the committee beijig empowered to add to its number, and with power to take measures to obtain books and other property belonging to the Chiu'ch. A vote of thanks was unanimously piussed to the trustees ot St. Andrew's 20 Church for their courtesy and kindness to the Synod during the present meeting. The Synod was then dissolved by the moderator in the name of the Lord Jesus Christ, to meet at Montreal on the second Tuesday in June next, in St. Andrew's Church, at seven thirty in the evening. (Signed) Robert Dobie, Moderator. Robert Burnet, Clerk of Synod. Act* and Proceedings of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, begun at Montreal on the thirteenth day of June, and concluded on the fourteenth day of June, in the year of our Lord one thousand eight hundred and seventy-six. Session 50. Diet I. 30 At Montreal, and there within St. Andrew's Church, the thirteenth day of June, eighteen hundred and seventy -six ; The which day after sermon by the Rev. Robert Dobie, tninister of Milton, moderator of Synod for the preceding year, fnmi cxxxvii. P.salm, 5th vense : " H' I forget thee, O Jerusalem, let my right hand forget her cunning," the Synod ot the Presbyterian Church of Canada in connection with the Church of Scotland, met according to ..ppointment and was by him constituted with prayer. Presbytery rolls having been given in, the Synod roll was made up and read over. True copy, Gavin Lang. 351 '0 f this le tli« ttawa ytery G the rover- )e not ion of L-.'ng, resent litteo, i next, aying of the ing of V. the \ Mae- g, Mr. niittee ol)tain drew's 20 eetiiig. Lord in St. 5ynod. lada in enth of our 30 ch, the d and ylilton, « If nod ol jtlnnd, id read Sederunt : Mr. Rohert Dohie, moderator; Mr. Wm. Simpson, Mr. John Mnc- donald, Mr. Gavin Lang, Mr. Tiionias Maepher.son, Mr, Peter Watson, Mr. John Davidson, Mr. Neil IJrodi'^, Mr. David Watson, Mr Robert Burnet, Mr. John Mc/Tat, ministers; together with Mr. Jolni Anderson, Mr. Angus McKay, Mr. J. S. Hunter, Mr Roderick McCiimtnon, Mr. AUan Cameron, Mr. Finlay McQuaig, Mr. John McLeod, Mr. Donald McKay, Mr. Thomas Miller, Mr. James Wright, Mr. Donald Cameron, and Mr. Geo. Broekie, elders. It was moved by Mr. Lang, seconded by Mr. Brodie, and agreed to, that the Rev. D. Wats()?i, M.A., minister at Thorah, be moderator for the year, and he being present, took the chair. It was unanimously agreed that the thanks of the Synod be given to the Rev. Robert Dobie for his whole conduct during the year, and also for his admir- able sermon delivered this evening. The Synod proceeded to the election of three trustees of Queen's College, Kingston, in the room of William Bain, D.D., David Watson, M.A., and J. J. 10 MacdonncU, M.A., B.D., who retire pursuiuit to the terms of the Royal Charter. It was unanimously agreed to elect the Rev. Thomas Macpher.son in room of William Bain, D.D. ; the Rev. John Davidson in room of the Rev. D. J. Mac- donnell, and to re-elect the Rev. David Watson, as members of the Board of Trustees of Queen's College. 'IMic Synod proceeded ex necessifate, see page 12, section 3, of the second Book of Polity, to elect th<' following clerical members of the Board of Trustees of Queen's College, viz. : Mr. Neil Brodie, Mr. Peter Wat8t)ii, Mr. Robert Dobie, Mr. Robert Burnet, Mr. John Mofflit, in room of the Rev. Robert Neil, D.D., Mr. Donald Ross, M.A., B.D., xMr. Neil McNish, B.D., LL.D., Mr. Kenneth Ma«- lennan, M.A., Mr. George Bell, LL.D., Mr. John Jenkins, D.D., and Mr. D. M. Gordon, M.A., B.D., who have voluntarily joined the Presbyterian Church in Canada. The Synod proceeded to elect for managers of the Temporalities Fund, in room of those who retire, pursuant to the terms of the Act of Incorporation, when on motion tluly moved and seconded, it was unanimously agreed to elect Mr. Robert Leckie and Dr. G. W. Campbell, in room of Judge Dennistoun and Mr. William Walker, and the Rev. Dav-.d Watson and the Rev. Thos. Macpherson, in room of the Rev. Gavin Lang and the Rev. John Jenkins. 20 The Synod also re-constituted the remaining portion of the managers, and re-elected the Rev. Gavin Lang, and elected the Rev. John Macdonald, the Rev. John Davidson, Mr. Jo.seph Ilickson, Mr. J. S. Hunter, Mr. David Law^, Mr. Alex. McGibbon, in room of the Rev. John Cook, D.D., the Rev. D. M. Gordon, the Rev. John II. Macker.as, Mr. J. L. Morris, M. William Darling, Mr. Ale.K. Mitchell, and Mr. James Michie, who have left ihe communion of the Church. Mr. R. M. Esdaile and Mr. George Mathieson of Montreal, were elected uudi- toi's, Mr. Douglas Brymner, Secretary-Treasurer. An understanding was come to that during the present session, the following be the hours of meeting, viz: in the forenoon from half-past nine till one o'clock ; ;{0 in the afternoon from hall-past two till half-past five; and in the evening from seven till the close of the diet : True copy, Gavin Lang. RECORD. fn the Superior Court. No. 58. (Petitioner's KxhibitZl) Acts nod Prooeedinga of the Synod of tlic Pres- byterian Church of Canada in connection with the Church of Scotland on and .since June 15, 1875, filed lat August 1879. — continued. iM:i'' »<.w-> H s','. }*tW''' s^^^M ;,''iceB '>|nMt7' if • W* '■'' ■■r^'I* > ,' i'.*;-'';^ t -•' ■"■- Ro,> vi/. : I {: - ;! ..'I^ rft ■ ' ^^l*fw^^'.':' 11' :. -1 aH ■H ^''^'S Ib ■^■■P^ 11 ^- ^S ■': ■ rl r ' tR w /* - . iV' lu >■ ■-■"■" $■ 1 ■ i ■. ■ ■ V; i f » UECOllD. 7n the Superior Court. No. 58. (Petitioner's Exhibit Zl) Acts and ProceediDgs of the Synod of the Pres- byterian Church of Canada in connection with the Church of Scotland on and since June 15, 1875, tiled Ist August 1879. — continued. 352 The Synod pnjcecdeJ to appoint the toHowing comniittcoa, viz : I. On Bills and Overturts. The moderator, convener, the ex-nioderator, the ckik, Mr. Neil Brodie, Mr. John Davidson, Mr. John McLeod. II. On References, Oornplaintj and App'als, the moderator, convenor, Mr. Lang, the clerk, Mr. John McMnrchy, Mr. John Macdonald, Mr. John Moffat, Mr. Roderick McCrimmon. III. To Revise Synod and Commission Records — Mr. J. S. Hunter, con- vener, Mr. Finlay McQuaig, Mr. James Wright, Mr. Donald Cameron. IV. To Revise Presbytery Records —Mr. Dobie, convener, Mr, Thos. Mac- pherson, Mr. Peter Watson, Mr. Roderick McLeod, and Mr. James Clarke. lo V. To Draft an Addrestt to the Queen — Mr, Lang, convener, Mr, Dobie, Mr, J, S, Hunter, Mr, James Wright, and Mr, Angus McKay, VI. To Draft an Address to tlie Goveruor-General, Mr, Lang, convener, Mr. Burnet, Mr. Brodie and Mr. Hunter. VII. On Ai)|)licatiuns for Leave to Retire from the active duties of the Ministry Mr. Lang, convener, the moderator, the ex-moderator, Mr. Donald Cameron, Mr. Allan Cameron, Mr. Finlay McQuaig and Mr, John Anderson, The Examining committee for 1877 — The Clerk, convener, the moderator, Mr, Lang, ex-moderator, Mr. David.son, Mr. Peter Watson, Mr. Neil Brodie. The Synod proceeded to reconstruct the Board of Management of the Minis- 20 ters' Widows' and Orphans' Fund as follows: Mr. Brodie, Mr. Simpson, Mr. Lang, Mr. Macpherson, Mr. Robert Crot's, Mr. Alex. MeGibbon, Mr. Douglas Brymner, Mr. Henry Morgan, Mr. Donald McKay, Mr. Robert J. Reekie, Mr. George Den- holm and Mr. David Law. The minutes of the meetings of the Synodical Committee were read and sus- tained, and ordered to be printed as an appendix to the minutes of Synod. The Synod then adjourned to meet to-morrow morning at 'J. 30 a.m. ; after being closed with prayer and praise. Dav. Watson, Moderator. Robert Burnet, Clerk. Diet. II. 30 Montreal, and there within St. Andrew's Church, Wednesday, the fourteenth day of June, eighteen hundred and seventy-six ; The which day the Synod of the Presbyterian Church of Canada in con- nection with the Church of Scotland, met persuant to adjourmnent and was con- stituted with prayer. Devotional services were conducted by the Rev. Thos. Macpherson. The minutes of yesterday's diet were read and sustained. The Rev. Gavin Lang gave in the report of the Committee on Correspondence with the Cohmial Connnittee of the Church of Scotland. 40 It was moved, seconded and unanimously agreed to, that the Synod having heard the report, receive and adopt the si\me, thank the Committee and especially Mr. Lang the convener, and instruct the committee to comnuniicate to the (Colonial Committee the exprcsst^d views of the Synod on the recent report submitted to the General Assembly and on the deliverance of the General Assembly on the report of the Colonial commictee. True copy, Gavin Lang. 353 ••^!! 10 snitor, r, Mr. /loffat, r, con- i. Mac- Dobie, ivener, of the Donald on. ilerator, ie. i Minis- 20 r. Lang, rymner, •ge Den- and sus- d. J after \ Clerk. Church, eighteen a, in con- was con- pondence d having jspecinlly Colonial id to the Ihe report Iang. Mr. Lang laid on the tuble an application for leave to retire from the active UKCOKD. duties, of the ministry from the Rev. Wm. SimpBon, minister at Lachine. The application was referred to the standing committee. J^ *^ Mr. McCallum appeared on behalf of the congregation of West King. Courf. A committee consisting of the moderator, Mr. Lang, Convener, Mr. Dobie, Mr. Burnet, Mr. Sir pson, Mr. John Macdonald, Mr. J. 8. Hunter was appointed No. 68. to consider this and other similar oases. F*v'h°'7n Thj committee on business for lust year was appointed the committee for Acts and this year. Proceedings 10 The report of the co'nmittee for leave to retire from the active duties of the of the Synod ministry was given in, considered and adopted. of the Pres- The commission of Synod was empowered to give such certification to any (jhurch'of iiicmbers of the court as would authorize them to represent the Synod before the Canadiiin Colonial Committee of the General Assembly. connection Mr. Lang presented a verbal report from Queen's College. He stated that J^"'^ 'jj® the college h re'jived during the year from the Church of Scotland $2,444.00, gcolland on and from the Tcjtnporalities Board of the Church $2,975.00. and since There was rend an extract minute of the Presbytery of Hamilton transmit- June 15, ting an application from the Rev. Alex. Slmnd, M.D., congregational minister, ^^"^^^ ^^'^^ 20 to be admitted as a minister of this eluirch. A similar applicivtion from the 1079"*'"' same Presbytery was made on behalf of Mr. A. J. Campbell, M.D., of London. continued. The applications were referred to the Examining (jominittee. Application was made by the Presbytery of Hamilton for leave to take Mr. Andrew Watson, student of Divinity, on public probationary trials for license, the usual circular letters having been duly issued. The Synod instructed Mr. Watson to appear before the Examining Committee. Mr. Burnet was apjiointed Treasurer for the Synod Fund. Mr. Lang made a statement with regard to St. John's Church, Montreal. The Synod unanimously fjive their sanction to the action which had been 30 taken by the Rev. Mr. Lang, on the reeommerulation of his legal advisers, and resolved, that the Rev. Gavin Lang be appointed, as he is hereby appointed by the Synod, to receive the deed of St. John's Church and manse. It was unanimously resolved, that the Synod, through the moderator, convey to Mr. Douglas Brymnei, their hearty thanks for the able and efficient manner in which he hits conducted the Landmark during the past year, and for the dili- gence and patience with which he has discharged a large and onerous amount of work for the church. The Synod desire to record their grateful sense of the munificent donation of $500.00 made by the late Mr. Edmonstone to the ministers' widows' and Or- 40 phans' fund. Mr. J. S. Hunter was appointed Treasurer of the fund and the Synod authorized Mr. Hunter to call on the executors of the late Mr. Edmon- stone to receive the legacy, to kee|) the same at the disposal and order of the Synod, and to collect all sums ordered by the Synod to be paid to the Treasurer by the ministers of the Church. The cases of London, Bayfield and Eldon, were laid before the Synod and referred to the Synodical Committee on church property. True copy, Gavin Lang. ■•'S' J '■ ' s • k rm ^' RECORD. In the. Superior Court. No. 68. (Petitioner's Exhibit ZI) Acts nnd Proceedings of the Synod of the Pres- byterian Church of Canada in connection with the Church of Scotland on and since June 15, 1875, filed Ist August 1879. — continued. 364 Tliert- was presentetl through the Committt^e on Bills jind Overturef*, nu overture from the Presbytery of Glengarry, craving the Synoil to call over the names of the ministers who have withdrawn from this church, who joined the the Presbyterinn Church in Cannda at the Victoria Skating Rink, to declare them no longer ministers of this Church and depose them from the office of the ministry. After consideration and deliberation it was determined to refer to the action taken by the Synod in 1844, under similar circumstances and follow the ex- ample then set. The minutes of the 23rd September were examined and the course then taken ascertained. 10 Whereupon, the Synod declared, as they hereby do declare, that those min- isters who have joined the Presbyterian Church in Canada, thereby seceding from she Synod, viz: John Cook, D.D., Dimcan Anderson, M.A., James McCaul, B.A., Peter Lindsay, B.A., Henry Edmison, M.A., T. Brouillette, George Weir, M.A., Alex. M. McQuarrie, B.A., James Douglass, B.A., Jiimes C. Muir, D.D., James Patterson, John Jenkins, D.D., Donald Ross, B.D., R. Campbell, M.A., J. S. Lochead, M.A., Charles Doudiet, W. M. Black, D. W. Morrison. B.A., James B. Muir, M.A., Charles A. Tanner, P. S. Livingstone, B.A., Thomas Fraser, Charles G. Glass, M.A., J. S. Burnet, Robert Lang, B.A., James S. MuUan, Neil McNish, B.D., L L.D., George Porteous, IL Lamont, D.D., William Ferguson, 20 Alex. Mann, M.A., William Bain, D.D., Solomon Mylne, Janus Wilson, M.A., Walter Ro.ss, M.A., D. McGillivray, B.A., R. Campbell, M.A., William Cochrane, John Beunet, W. T. Gumming, Elias Mullen, D. M. Gordon, B.D., James Fraser, B.A., D. J. McLean, B.A., Joseph Gardier, Alex. Campbell, B.A., John Fairlie, Frederick Home, Alexander Smith, H. Cameron, James Sinclair, H. J. Borthwick, Robert Neill, D.D., James Williamson, L L.D., Alexander Buchan, J. B. Mowat, M.A., W. Snodgriss, D.D., J. H. Mackerras. M.A., James Murray Gray, G. D. Ferguson, B.A., M. W. McLean, M.A., Thos. G. Smith, H. D. Steele, Charles J. Cameron, M.A., John Brown, W. E. McKay, B.A., James Carmichael, Walter R. Ross, A. Maclenuan, B.A , William Aitken, A. McDonald, B.A., Adam Spenser, 30 Donald Strachan, 1). Macdonald, A.M., David P. Niven, B.A., J. Carmichael, M.A., D. J. Macdonell, B.D., Smith Hutchison, James B. Mullen, John Fer- guson, B. A. William Cleland, Samuel Porter, Alexander Lewis, William Barr, James Bain, William McKee, B.A., William Barnhill, B.D., Archibald Carrie, M.A., William White, J. AUister Murray, K. Madennan, M.A., Alexander McKay, M.A., James Cleland, James 1\ Paul, M. W. Livingstone, James Herald, Charles Campbi'll, John Hogg, D.D., William Stewart, George A. Yeomans, B.A., E. W. Waits, James C. Smith, M.A., William Masson, James PuUar, Alexander Forbes, Robert G. McLaren, B.A., Joshua Eraser, B.A., John Rannie, M.A., Hamilton Gibson, James Gordon, M.A., David Camelon, James Sieveright, B.A., 40 J. S. Eakin, B.A., William T. Wilkins, B.A., John B. Taylor, Hugh Cameron, J. J. Cameron, M.A., William Johnson, M.A., James McEwen, M.A., Donald Macdonald, M.A., D. Morrison, M.A., Donald Fraser, M.A., E. B. Rodgers, W. Anderson, M.A., John Gordon, B.A., Malcom M. McNeil, Geo. Bell, L L.D., are no longer ministers of the Presbyterian Church of Canada in connection with the Church of Saitland in Canada, and that they are hereby deposed from the min- istry of said Church. True copy, Ga.vin Lang. 355 Furt)ier, the Synod agree to record the expression of the grief of the mem- bers preweiit at reading the niunes Horiatim, aii.i at decbiring those who have s»'ceded from our Church no longer miniHti-rs thereof, in terms of Chapter V I . section 1, of the I'oiity of this Ciuirch and after the example of the Synod of 1844. Chapter VI " of case without process " provides: — First: — when an individual commits an oflence in the presence of the Court, or when he voluntarily confcHses his guilt, it is competent to the Court to proceed to judgment without process, the oflender having the privilege of being heard. The record must show the nature of the oifenct', the judgment of the Court, and 10 the reasons thereof. (See Acts and Proceedings of Synod, Montreal, Monday, September 23rd, 1844.) There was transmitted au(i read an overture from members of the Presby- tery of Glengarry, craving the Synod to appoint a Home Mission Board to and in furthering the temporal and spiritual interests of the Church. Mr. Neil Brodie was heard in support of the overture. After discussion, it was moved and agreed to, that the overture be remitted for further consideration to the Sy nodical Connnittee. The Synod had transmitted to them for their Committee on Bills and Over- tures, an overture signed by a number of members of the Church, praying the 20 Synod to rescind the Independence Act. The overture was in the following terms : — "Whereas an Act was passed by the Synod in 1844, an A(;t declaring the Spiritual Independence of the Presbyterian Church of Canada in connecti(m with the Church of Scotland, it is hereby overtured, that the Act be repealed by the Synod, and declared as no longer in fcrce in any procedure of this Church. After long and earnest deliberation the Synod rcsolveci, that whilst the Act of Spiritual Independence declares only what has all along bien acknowledged by the Church of Scotland and maintained by this Church its^elf, yet, seeing that the terms of the Act have been abused, in leading on members from tlieir allegiance to the Church, it is hereby resolved, that the Act shall no longer form any part of the 30 Polity of the Churcli. This rescinding, however, of the Act shall not Ije held as an acknowledgement of any diminution of our spiritual independence, as from uncontrolled jurisdiction over all the presbyteries, kirk sessions, ministers, mem- bers, and adherents within our bounds. The Synod ordered this enactment to be transmitted in terms of the Barrier Act, and in the meantime declared the same to be an Interim Act. There was transmitted and read an overture anent the appointment of Trustees. After parties were heard the overture was referred to the Synodical Committee. Mr. Dobie, the convener on Presbytery records, reported the Records of the Presbytery of Montreal, Glengarry and Hamilton, sus carefully and correctly kept, 40 and they were ordered to be attested accordingly. It was agreed that the next annual meeting of Synod be held in London, on the first Tuesday in June. Mr. Sym was appointed moderator of the Kirk-session of Paisley during his services there. The Moderator then addressed the Synod, and after praise and prayer the Synod now closed with the apostolic benediction. Dav. Watson, Moderator. Robert Burnet, Clerk of Synod. True copy, Gavin Lang. IlECORT). Jn the Siipfrior Court. No. 58. (IVtUioner's KxliibitZl) ActH and I'roccudingii of the Synod oi'tho I'res- byteriau Chureh of Canudii iu CODDCCtiOD with tlie Church of Scotland on and since Juno 15, 1H75, filed liit August 1879. — continued. I U: i'M 356 KKCORD. Jn the Superior Court. No. B8. (Petitioner's Exhibit Zl) Aots and Proceedings of the Synod of tlio Pres- bytcriiin Church of Canada in connection with the Church of Scotland on and since June 15, 1P75, filed Ist August 1879. ■ — continued. Acts and proccdiiigs of the Synod of tho Prt'sbyterian Church of Cuiiuda in contiection with tho Cliurch of Scothuid, begun iit London, on the fifth day of June, in the year of our Lord one thousand eight hundred and seventy -seven. Session LL Diet I. At London, and there within St. Stephen's Church, the fifth day of June, eighteen hundred and seventy- seven years; The which day the Synod of the Presbyterian Church of C n .. in connec- tion with the Church of Scotland, met according to appointmen* er sermon 10 by the Rev. David Watson, M.A., minister of Thorah, retiring moderator, from the t( xt, Ecclesiastes xii. and 13th verse, " For God .>^hall bring every work into judgment with every .secret thing, whether it be good, whether it be evil," and wjis thereafter constituted with prayer. The Presbytery rolls having all given in, the Synod roll was made up and read over. Sederunt; David Watson, moderator; Robert Burnet, John Moffat, Robert Dobie, William Simpson, John Macdonald, Gavin Lang, Thos. Macpherson, Peter Watson, John Davidson, Neil Brodie, ministers ; Thos. Milk-r, James Wright, Donald Cameron, Aaron Paterson, James Ritchie, George Brockie, John McMurchy, 20 Donald McKay, J. S. Hunter, Roderick McCrimmon, Allan Cameron, Finlay McQuaig, Duncan McArthur and James Clarke, elders. The Moderator intimated, that after consultation with the ex-moderators it had been unanimously agreed to reconnnend the Rev. Gavin L;»ng, minister of St. Andrew's Church, Montreal, for the office of moderator for the current year. On motion Mr. Lang was elected uioderator and took his seat accordingly. The thanks of the Synod were accorded to Mr. D. Watson for his excellent sermon, and for his whole conduct in the chair, and he was requested to allow of the publication of the discourse, to which he assented and made his acknow- ledgements. 30 Mr. Douglas Brymner and Mr. Thos. A. McLean, elders, and the Rev. Mr. Wallace, London, being present, were invited to sit and deliberate. The following members wei ; appointed by the Synod to form the Business Committee for 1877, viz. : — The Rev. the moderator, the ex-moderator, Mr. Burnet and Mr. Brymner. The Synod proceeded to appoint the following committees, viz. : 1. To draft an Address to the Queen — Mr. Dobie, convener, Mr. Macpher- son, Mr, MofFatt and Mr. Wright. n. To draft an Address to the Governor-General — Mr. Davidson, convener, Mr. John McDonald and Mr. T. A. McLean. 40 The Synod proceeded to the election of three Trustees of Queen's College, at Kingston, in room of the retiring Trustees, Messrs. Brodie, Watson, (David), Macpherson and Davidson, who were unanimously re-elected. It was unanimously agreed that during the present session the following be the hours of meeting, viz. : in the forenoon from ten till one o'clock, in the af- , True copy, Gavin Lang. idu ill day of h, the veiity- onnec- eriiioii Kt •, from k into ," and Lip iiiid R()l)crt , Poter /"riKlit, [iirchy, 20 Fin lay iti)r3 it ster of t year. cellent low of know- 30 ;v. Mr. usiness , Mr. icpher- ivener, A)llege, )avid), i^ing be the af- G. 40 10 367 tenivjon from half-puHt two till Imlf-pawt five, and in the evening from seven till the close of the diet. The following committoe to eoni^ider all inatterH connected with the Tcm- lM)raliti»'H lioard fund wiis appointed to meet at \) o'clock to-morrow morning, and to prepare ti report for the next diet of the Synod, viz. ; the Moderator, con- vener, Me.sHi's. D. Watrton, Dobie, Macdonald, IJurnet, Macpherson, Davidson, Brymner, McLean, Donald Ciunevon, Wright and Clarke. The Reverend Drs. Shand and Campbell being present, were invited to sit and deliberate. The Presbytery of Glengarry was anthorized to meet in the church to- morrow morning at half-pa.st nine. Closed with prayer. Gavin Lang, Moderator. Rouert Buknet, Clerk of Synod. Diet II. UECORb. Ill thf. Court. No. 58. (I'etitioner'H KxiiibitZl) Acts and ProcccJiDgH of the Synod of tho PrcH- byteriai) Church of (Junudu in , connection with the At London, and within St. Stephen's Church, there seotlund on Wednesday, the «i.vth day of June, one thousand nud since eight Innidred and seventy-seven years ; Ju'"* !•''. The which day the Synod of the Preshytfrian Church of Canada in conn"c- J^'^' '^''"^ tion Avith the Church of Si'otland, met pursuant to adjournment, and was coii^ti- jg^j) *' tuted with prayer. , —wntinueil. 20 Devotional services wcue conducted bv the Rev. John Davidson. The minutes of yesterday's di-'t weve read, amended and sustained. The Synod proceeded to ai)point the following connnittees : — \. On Bills and Overtures: — The Rev. Neil Brodie, convener, Peter Wat- son, Roderick McCrimmon, George Bro kie, Aaron Patterson and John McMurchy. IL On References, Complaints and Appeals : — The Rev. the Moderator, convener, Mr. David Watson, Mr. Burnet, Mr. Macpherson, Mr. Dobie, Mr. Mc- Lean, Mr. Wright, Mr. Don. Cameron, Mr. McArthm-. IlL To Revise Presbytery Records : — The Rev. John Macdonald, convener, Mr. Davidson, Mr. Moffat, Mr. Donald McKay, Mr McQuaig, M;-. Ritchie. 30 IV, On Applications for leave to retire from the active luties of the Ministry : — The Rev. the Moderator, convener, Mr. Davidson, Mr. David Wat- son, Mr. John Macdonald, Mr. Burnet, and Mr. John Moffat. V. Examining Committee for 1877-78 : — The Rev. the Moderator, conve- ner, the clerk, the ex-moderator, M. Davidson, Mr. Peter Watson, Mr. Brodie. The Synod re-elected the Rev. Neil Brodie, the Rev. William Simpson, the Rev, Gavin Lang, the Rev. Thos. Macpherson, managers of the xVIinisters' Widows' and Orphans' Fund. The Synod elected the Rev, Gavin Lang, the Rev. John Macdonald, gover- nors of Morrill College. 40 The Rev. Henry McMtekin, being pn^sent, was invited to sit and deliberate. Mr. Lang reported that several applications for aid had been received and forwarded to the Colonial Committee. That he had sent a letter to the Colonial Committee, and had been favoured with a satisfactory reply. The committee was thanked for its labours and re-appointed ; Mi. '^ang to be continued in the office of convener. True copy, Gavin Lang. m RECORr/. In the Superior Court. No. 58. (Petitioner's Exhibit Zl) Acts and Proceedings of the Synod of tlie Prea- byterinn Church of Canada in connection with the Church of Scotland on and since June 15, 1875, filed Ist August 1879. —continued. 358 There was read an overture T'"^'" the PrcBbytery of Gleng.irry, praying the Synod to appoint a Honie^MisMon Joard, under such rules as may be agreed on, so that there may be united action in all our eft'orts in advancing the Redeemer's Kingdom within our bounds. The overture was sustained, and the following committee was named to carry out the objects thereof, viz. : Tin; Moderator, Mr. Macdonald, Mr. Mac- pherson, Mr. D. Wa'soii, Mr. Burnet, Mr. Dobie, Mr. Moffat, Mr. Brodie, with power to add to their number. Mr. James Mackie, Winterbourne, being present, was invited to sit and de- liberate. 10 The Synod adjourned till to-morrow morning to allow the holding of a missionary meeting in the evening. Closed with the apostolic benediction. Gavin I^ang, Moderator. Robert Burnet, Clerk of Synod. Diet HI. At London, and there within St. Stephen's Church, Thursday, the seventh day of June, one thousand eight hundred and seventy-seven; The which day the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland met, pursuant to adjournment, and was constituted 20 with prayer. The minutes of the former diet were read and confirmed. The Committee on Reference, Complaints and Appeals, tran.nuitted to the Synod a report on the memorial of the Rev. Peter Watson, in reference to cer- tain action of the Presbytery of Glengarry. The Coni'T'llLees loport recommended that the decision of the Synod in this case be, that the appeal of Mr. Peter Wat- son be sustainei, wJiich recommendation was adopted, and became the decision of the court, Mr. Brolie dissenting. The Committee on Applications for leave to retire from the active duties of the Ministry, transrnitted a report on the application of the Rev. Thos. Mac- 30 pherson, minister of Lancsister, craving that his case be recommended to the favourable consideration of the Temporalities' Board. The Synod, on motion, agreed to appoint a commission, consit Mi"- Janus Cltuke, Mr. William Ritchie, Judge Miller, Mr. John McKenzie, Mr. Donald Cameron, Mr. Geo. Brockie, Mr. Aaron Patterson, Mr. - True copy, Gavin Lang. 361 f the srs of vould Lt an- appli- 10 kirk- to the jf the id Oi- mode- 20 er, the King- -eight, lection le, one 30 le, one I : connoc- aion by cr and up and David- Uuruet, 4(1 X. Wm. ilie, Mr. I r John on, Mr. S'G. Angus McMiirchy, Mr. John McMurchy, Mr. John Anderson, Mr. Donald McKay, !ind Mr. J. S. Hunter, elders. Intimation having been nnide that during the past year the Almighty had seen fit in His gooiiness to remove several ^f the elders by death, the moderator named the Rev. Gavin Lang, the Rev. John Macdonald and the clerk, to prepare obituary notices of the deceased. The Rev. the moderator intimated that after consultation the ex-moderators had agreed unanimously to nominate for the current year the Rev. John Davidson, minister at North Williamsburg, as moderator, which nomination was accepted 10 on resolution moved and seconded. The moderator being present took the chair. It was proposed and agreed to, that the thanks of the Synod be given to Mr. Lang, the retiring moderator, for the appropriate discourse preached by him this evening, and for hi.-: whole conduct in the chair and that he allow of the publication of the sermon, which thanks the moderator tendered to Mr. Lang. There was read the eopy of a despatch from the Secretary of His Excel- lency the Governor-General, date I Government House, Ottawa, 18th October, 1877, intimating the receipt of two addresses, one to Her Majesty the Queen, and the other to His Excellency the Governor-General, and the high apprecia- tion he had of the loval devotion to the British Governmeit and Constitution of 20 the members of this vSynod. The Business Committee of 1877 were, on motion re-appointed for 1878, viz. : the Reverend the moderator, the ex-moderator, and Messrs. Burnet and Brymner. Dr. A. J. Campbell, licentiate, being present, was invited to sit and deli- berate. The Synod re-elected the Rev. Robert Dobie and the Rev. Robert Burnet, two Trustees of Queen's College, who retire pursuant to the terms of the Royal Charter. Committees were appointed : 30 I. To draft an Address to the Queen — to consist of Mr. Lang, Mr. Dobie, Mr. Macdonald, Mr. John McMurchy and Mr. John McKenzie. II. To draft an Address to the Governor-General to consist of Mr. Brodie, Mr. Dav'd Watson, Mr. Andrew Clarke and Mr. Burnet. It was agreed that during the present session the following be the hours of meeting, viz. : in the forenoon frotn hali-past nine till one o'clock ; in the after- noon from half-past two till half-past five ; and in the evening from seven till the close of the diet. The Presbytery of Glengarry was authorised to meet in the church to- morrow morning at nine o'clock. 40 Closed with prayer. John Davidson, Moderator. , . Robert Burnet, Clerk. At Kingston, Wednesday the twelfth day of June, (me thousand eight hundred and seventy-eight years ; The which day, the Synod cf the Presbyterian Church of Canada, in connec- tion with th^- with the brethren. FxhibiiZn The moderator, ex-moderator, and Me.ssrs. Dobie, Lang and Brymner, were ^(^^1, „„j' appointed a Business Ci)mmittee for the present session. ProcecdingH 10 The Synod re-elected Mr. John MolTat and Mr. Peter Watson, wiio retire o<" the Synod pursuant to terms of the Roval Ciiarter, as trustees of Queen's College. of the Prea- llie lollowiiig Lominittet's were appointed : Church of I. To draft an Address to the Queen, to consist of Mr. Dobie, Mr. John Me- Cumiduin Murchy, and Mr. John McKenzie. conuection II. To draft an Address to the Governor-General, to consist of Mr. Brodie, J,^^^ *'''® Mr. David Wat.son, Mr. Clarke, and Mr. Sangster. SooUund on It wa.s moved by the Rev. Dr. Campbell, seconded b}' the Rev. John Moffat, and .since that a public meeting be held on Tuesday evening to explain matters connected Juno 15, with our Church, and that the following be appointed to explain the said matters : ^^^•^' ^^'^^ Messrs. Lang, Brodie, Galbraith, of Hopewell N. S., McLean and Brymner. The Jjy.j ^"'" consideration of this motion was delayed until to-morrow morning. continued. It was agreed, tliat during the present session the following be the hours of meeting, viz. ; in the morning, from half-past nine till one o'clock ; in the after- noon, from half-past two till half-past five; and in the evening, from seven till the close of the diet. The Presbytery of Hamilton and the Presbytery of Montreal and Glengarry were authorized to meet in this Church to-morrow morning at nine o'clock. Mr. Lang reported that the address of welcome appointed to be presented to the Maniuis of Lome on arrival in Canada was j}resented to His Excellency at 30 Montreal, to which he returned a most gracious reply, which was ordered to be held m rctentis. It yns also mentioned that His Excellency had been pleased to receive the address of this Church first of all the ecelesiasticjil addresses presented in the upper part of the Dominion. Mr. Lang also reix)rted that in accordance with the Synod's instructions he had served upon the Hon. John Hamilton, acting chairman of the Board of Trustees of Queen's College, the resolution agreed to regarding the movement to raise additional endowment for that institution and embodying an assertion of this Church's right, under the Royal (jharter, to its possession and privileges. Closed with prayer. 40 John Macdonald, Moderator. Gavin Lang, Clerk pro tempore. Diet II. At Toronto, Wednesday, the eleventh day of June, one thousand eiglit hundred and seventy-nine; The which day the Synod of the Presbyterian Church of Cainida in connec- tion with the Church of Scotland met, pursuant to adjournment, and was con- stituted by prayer. True copy, Gavin Lang. 368 1' ^r r •■■^ llECORD. In the Superior Court. No. 58. i Petitioner's :xiiibitZl) Acts and Proceedings of the Sjnod of the Pros- bytcrinn Church of Canada in connection with tlic Churcii of Scotland on and since Juno 15, 1875, filed 1st August 1879. '—continued. ' f, Ufvutioiinl rtorviceH were conducted by the Rev. Peter Galbniith, of Hope- well, Nova Scotiu. The inimites of yesterday's diet were read and siintained. Consideration of the motion, table) i)y Rev. Dr. Campbtdl at yesterday's diet, relative to the expediency of holding a piil)lic inei'ting on Tlunsdny evening first, was resunieil, and alter discussion it was carried, and Messrs. McLean and Brynuier were appointed to make the necessary arrangements. The Synod appointed cotnmittees. I. — On Bills and Overtiues. II. — On References, f/omplaints and Appeals. III. — To Revise Synod Records. IV. — To Revise Presbytery Records. V. — On 10 Applications for Leave to Ritire from the Active Duties of the Ministry. VI. — On Ai)plication for Admission. VII. — On the E.xamining Committee for 1879- 80, and it was agreed that these committees should consist of the sanu; members as at the session of last year, with the exception of those elders v/ho are not members of the Synod this year, in which case tlieir succe-s.sors shall take their places. The Committee upon the Temporalities Fimd suit and its present position reported progress. Mr. Brymner explained the stnge at which that siut had arrived, and tluit now by injunction, obtained and confirmed by Mr. Justice Jett6, the fund was tied up, and the prospects of very soon reaching the 20 merits of the action very satisfactory . Mr. Lang gave in detail the results of the efforts made by visitation and circular, to raise congregational contri- butions for the Defence Fund to meet the expenses incin-red in carrying on the Temporalities Fund suit. A sum of $835. OG had been received, and $1)53.41 had been expended, of which $772.11 had gone for law costs, $75.30 for necessary travelling expenses, $89.50 for printing circulars to congregations and petition to be presented to Court, and $10.50 tor incidentid charges. On motion by Mr. J. A. McLean, seconded by Mr. David Watson, it was resolved that the report of the committee be received and adopted, and further, that the thanks of the Synod be given to tlie committee, and espe- 30 cially to the convener, for their diligence and tin? gratifying progress they have made, as also to the congregations for such measure of liberality as that with which they have responded to the call made upon them, and that the committee be re-appointed with powers and instructions to prosecute their in- teresting work. Mr. David Watson, seconded by Mr. Brymner, moved, and it was unani- mously agreed to, " that inasmuch as it has been reported to the Synod that a feeling prevails in many quarters that the continued existence of the Church depends upon the recovery of the property now sought to be recovered, it is resolved to anew declare, a.s it now solennily declares, that it is the determination 40 of this Synod to maintain the connection with the Church of Scotland." It was agreed to adjourn till to-morrow morning ot ten o'clock. Closed with prayer. JouN Macdonald, Moderator. Gavin Lang, ^'erk pro tenqjore. True copy, Gavin Lang. 3fi0 lopu- ■da>*B cning 1 and penis. —On 10 VI.— 1879- inbors re not their )sition it had rustice ig the 20 results contri- on the i)5.S.4l 30 for :;ations it was and espe- 30 thoy us that it the eir in- iinani- )d that hurch , it is nation 40 Mityore, Diet. III. At Toronto, Thursday, the twelfth day of June, one thousand eight hundred and sevi-nty-nine ; The which (hiy the Syncnl of tlie Prcshyterifin Chureh of Canada in connec- tion with the Chureh of Seothind met, pursuant to adjourinnent, and was consti- tuted with prayer. Devotional services were conducted by thf Rev. H. D. Steele, Paisley. The minutes of yesterday's diet were rend and sustained. 10 The Revd. James Paterson from Scotland, and the Rev. Dr. Baird from the United States, were asked to sit nnd deliberate. Application was made for [)owcr to mortgage the Chiu'ch property of St. Andrew's Church, North WiUiiMusl)urg, and on motion by Mr. Lang, seconded by Mr. Dobie, it was resolved " that the trustees of St. Andrew's Church, North Williamsburg, be and are hereby authorised to mortgage the property of said Church for the purixjse of meeting certain liabilities, not to e.xceed one thousand dollars." Another applieaticm was made for power to mortgage or sell the Chureh pro- perty at Cote St. George, and on motion by Mr. David Watson, and seconded by 20 Mr. John McKenzie, it was resolved, '• that the trustees of the congregation of the Presbyterian Church of Canada in connection with the Chureh of Scotland, at Cote St. George in the parish of St. Polyearpe, be and are hereby authorized to mortgage the property of said congregation for the purpose of meeting certain liabilities, not to exceed eight hundred dollars, or at the discretion of said trus- tees to sell said property in aca)rdance with ap[)lication of .said congregation and trustees, dated twenty-fourth day of February, eighteen hundred and seventy- nine." Mr. Lang gave in the report of the Correspondence Committee, read letters both to and from the Colonial Committee of the Chureh of Scotland, and the General 30 Assembly of the Parent (,'hurch, and announced I. — That a grant of three hun- dred pounds sterling had been received from the Colonial Committee for ifcme Mission work, within the bounds of this Synod; and IL — That a telegram had been received from the Rev. R. II. Muir, convener t)f said Colonial Committee, to the effect that " Mr. Sprott, deputy, leaves by Allan line on iifth for Montreal." The thanks of the Synod were unanimously given to the Committee on Corres- pondence and its convener, and after di.scussion, it was agreed " that the sum granted to this Church by the Colonial Committee, be divided in the proportion of one-third to the Presbytery of Montreal and Glengarry, and two-thirds to the Presbytery of Hamilton, said amounts to be expended, in accordance with the 40 directions of the said Presbyteries, by the Ct)rrespondence Committee of this Synod, who are the custodians of the fund." The Synod re-elected Messrs. Donald McKay, Robert James Reekie, Geovge Denholm, and David Law, who retire at this time from the Board of the Mi. lis- ters' Widows' and Orphans' Fund, the members of that Board. The hearty thanks of this Synod were unanimously passed to Mr. IIick.«on, of the Grand Trunk Railway, and to Mr. John Ross Robertson, of the Toronto True copy, Gavin Lang. RECORD. In the Superior Court. No. 58. (Petitioner's Exhibit Zl) Acts and Hrocceilings of tlic Synod of the Pres- byterian Church of Canudii in eonncction with the Church of Scotland on and since June 15, 1H75, filed 1st August IHT'J. — continued. I RKOORD. In the SiijDfrior Court. No. 58. (Petitioner's Kxhibit Zl) Acts and l'rocoedinf»B of the Synod of llio Pros- bytcriun Church of Canada in connection with tho Church of Scotland on and since June 15, 1875, filed 1st August 1879. — continued. 370 Telegram, for the courte«y and sorvicuH cxtcudud to it for itw preaent seswionrt' meetitigs. The thanks of the Synod were iiIho parsed to Mr. T. A. McLean for his kind- ness and exertions in pn^iioting the arrangoinunts for the prcsetit meet' ig and its comfort during its sittingH. The moderator closed the pmcet'duigs by deUvering a suitable address. There- after the minutes of this present diet were leiid and su.^tainei], and after praise and prayer the modt.ator said : In the name of the Lorrl Jesus Ciirist, the King and Ilead of this ('Imrch and of nations, I (hasolve this meeting, and M[)p()int the ni'Xt annual mi.'cting of Synod to convei:*; at Thorah, on the second Tuesday of 10 June, one thousand eight hundred and eighty, at seven o'clock in the evening. Of which public intimatioii was made, and the moderator pronounced the benediction. JouN Macdonald, Moderator. Gavin Lang, Clerk, ^ro /e»n^or«. True copy, Gavin Lang, Clerk pro tempore. (Endorsed.) Petitioner's Exhibit Zl, tiled at enquote, in coimection with the deposition of the Rev. Gavin Lang — Filed Lst August, 1879. (Paraphed) G. H. K., Depy. P.S.C. r-ri? -ir No. 59. (Petitioner's Exhibit Z2) Letter to the Rev. Gavin Lang, from the Rev. R. H. Muir, on be- half of the Colonial Committee of the Church of Scotland recognizing the Pres- byterian Church of Canada in connection with the Church of Scotland, dated 3rd June, filed 2nd July 1879. Schedule No. 74. 20 Colonial Mission, 22 Queen Street, Edinburgh, 3 June, 1879. G. A To the Rev. Gavin Lang, Convener of the Correspondence Committee of the Presbyterian (Church of Canada in connection with the Church of Scotland. Reverend and Dear Sir : I have the pleasure of addressing you on behalf of the Colonial Committee, under instructions of the General Assembly of the Church of Scotland, to inform you that the Reverend George W. Sprott has been deputed by the Assembly to 30 convey their cordial greetings to the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland ; and hoping that you may be able to arrange with Mr. Sprott for his having the opportunity, most convenient for the Synod, of discharging the duty which the General Assembly has entrusted to him. I am, Reverend and Dear Sir, Yours truly, Robert H. Mum, Convener of Col. Committee. (Endorsed.) Petitioner's Exhibit Z 2.— Filed at enquete July 2, 1879. (Paraphed) J. B. V., Dep. P.S.C. 40 Filed 1st August, 1879. (Paraphed) G. H. K., Depy. P.S.C. 30 371 anions } kind- ig niid There- praiHC King int the iiing. 3ed tho einpore. position ^S.C. 20 ;79. nniittee, inform mbly to 30 t" Canada J able to t for the to him. nittee. s.o. s.c. 40 Schedule No. 75. Montreal, June 16. My Dear Lang : I am vory Horry to liavc mi8.sc'd you here, as my inHtructions an? to commu- nicate with you an to the best time and place for a conference with the miuiHters of the Prosbytcriiin ('h. of Canada in connection with the Church of Scotland. This \A the (irHt article in my programme. They did not know on the other wide the date of the meeting of yoiu' Synod, but understoo' ihat it was likely to be over before I should arrive out. I am going to Ottawa to-day, and 1 propose 10 then going as far Wfst an London. If all is wtdl I shall !)(• in Moiitnal again in a little over a fortnight. Would you kindly write iuyterian Church of Canada in connection with the Church of Scotland," et al., (Respondents in the Court below,) - - Respondents. RKCORD. In the Court of QuenCs Bench, No. 62. Reasons of Appeal, filed 3itl March 1880. The said Appellant, ro.serving to himself at all times hereafter the right of alleging diminution of the Record in this cjiuse, and imperfection and insufficiency of the return to the Writ of Appeal therein, and the right of making all such motions and using all such lawful ways and means as may be necessary or, ex- pedient touching such diminution ot the said Record, and imperfection and insuf- ficiency of the said return, and in the premises, and also reserving to himself the benefit of all other and further rea.sons to be assigned in Appeal, do hereby say, That the rules, orders, judgments and proceedings of the Court below, made, 20 rendered and had between the said parties in this cause, wherein this appeal hath been instituted, and more particularly the judgment therein rendered on the twenty-ninth day of Deceml>er eighteen hundred and seventy-nine, were, and are irregular, enoneous, illegal a\id unjust, and ought so to be considered and adjudged by the court here; and that the said Appellant ought to be relieved in the pre- mises and restored to all which he has lost and suflered by reason of such irregu- larity, errors, illegality and injustice, and this for the following among other reasons : — Because said judgment is erroneous and contrary to law. Because said judgment is bail and not in accordance with the evidence, facts 30 and issues raised in the said cause. Because said judgment ought to have been in favor of Petitioner, Appellant, and each and all of the conclusions of his petition should have been grant(>d, and the writ of injunction in said cause iasued in the said Court should have been maintained and declared permanent. Because said Act of the Parliament of the Province of Quebec, thirty-eighth Victoria, chapter sixty -four, (to wit, passed in the thirty -eighth year of the reign of our Sovereign,) was, and is illegal, ultra vires, and unconstitutional, and should have been so declared and been set aside, rescinded and revoked. Because said Board, Respondent, acts illegally and unlawfully as alleged in 40 Petitioner's petition, and sliould have been by said judgment, so held and declared. Because said Board is, and has been administering the fund so entrusted to said Board illegally and not in accordance with the statutes and ordinances governing the same. ' nil '•U: 37r) ^'jwi' RECORD. In the Court of Queen's Bench. No. G2. Reasons of Appeal, filed 3rd March 1880.— continued. Because said jtidgmt'iit ought not to Imvo disnii.sst'd Potitioner's potitioii, but the same, nnd the conchisions thereor, sliould hiive heeu niiiintiuned. Beeausi' said Board, RespoiuU'iits, were not, and liave not been, holding and administering snid i'mid as required by law, and the statute seventy-second Victoria, chapter sixty -six, to wit, tliat statute passed in the twenty -second year of the reign of our Sovereign. Because said Board, Respondents, is illegally constituted, and seveml of the pretended members not entitled to assist or act therein and thereabouts. All which matters and things the said Appellant will be ready to maintain, prove and establish, when and where the Court here may direct. Wherefore the said Appellant humbly prays that by the sentence and decree of the Coiu't here, the said judgment of the Court below, made and rendered in this cause on the twenty-ninth day of December hast past, 1879, be reversed and set aside, and that the Court here be pleased to give such judg- ment in the premises as the Court below ought to have given ; and that the said Appellant be thereby relieved and restored to all which he has lost and suffered in the premises ; the whole with costs, as well of the Court be- low as of this Court. Montreal, 5 February, 1880. 10 (Duly received copy 6 February, 1880.) John L. Morris, Attorney for Respondents, except Sir Hugh Allan and G. Lang. (Endorsed.) Reasonsof Appeal— Filed 3rd March, 1880. Macmaster, Hall & Greenshields, 20 Attorneys for Appellant. (Paraphed) L. W. M. f No. 63. Answer to Reasons of Appeal, filed 16th Fcby 1880. Document VII. Province of Quebec, District of Montreal, Court of Queen's Bench. Appeal Side. The Reverend Robert Dobie, (Petitioner in the Court 30 below). and Appellant. " The Board for the Management of the Tem[K)ralities Fund of the Presbyterian Chureh of (Janada in cojinection with the Church of Scotland," et al., (Respondents in the Court below), - - Respondents. The .said Respondents reserving to themselves at all times hereafter the right of alleging diminution of the Record in this cause, and imperfection and in- 40 sufficiency of the return to the writ of appeal therein, and the right of making all such motions and using all such lawful ways and means as may be nec(;ssary 10 1, but ; and Licond . year f the titnin, ! and e and 1879, it the 9 lost rt be- IIELDS, 20 t. 877 and oxpt'di'iit, touching such dinihiution of the .said Record, and imperfection and insufhcency of the said return, imd in the premises for answer to the reasons of appeal of the said Appi'Hant in this cause filed, do hereby say : That all and every the allegations, matters and things in the said reasons of appeal contained and set forth are false, untrne and unfounded in fact, and, moreover, insulhcient in law to entitle the said Appellant to have and maintain the conckisions in and hy the said reasons of appeal taken, or any thereof. Wherefore the said Respondents huml)ly pray, that l)y the sentence and decree of the Court here, the saiil appeal and reasons of appeal be hence dismissed, 10 and that the judgment of the Court below, made and rendered on the twenty- ninth day of December, eighteen hundred and seventy-nine, from which the pre- sent appeal is taken, be affirmed; the whole with costs, as well of the Court below as of this Conrt. Montreal, 9th February, 188U. John L. Morris, Attorney for Respondents, (Received copy) Excepting Rev. Giivin Lang and Sir Hugh Allan. Macmaster, Hall & Greenshields, Attys for Appellant. 20 (Endorsed.) Answer to Reasons of Appeal — Filed I6th February, 1880. (Paraphed) L. W. M. KKCORD. \ mi Jn the \ j In Court of ; H|t Queen's ! j ■1 Beueh. ';. |H|| No. C3. j 1 » Answer to ' *)HI?! IICMSOUS of Appeal, filed Kith Feby 1880.— continued. 30 T the nd in- 40 aking ;ssary Document VIII. In the Court of Queen's Bench, (Appeal side). Reverend Robert Dobie, - Appellant. and " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the 30 Church of Scotland, e^ fl/., Respondents. Appellant's Factum. Cojjy of Judgment appealed from. Superior Court, Montreal. . Le 29 Docembre, 1879. " "' ,' ; Present en Chambre :— L'llonorable Juge Jejte. (Already printed, see No. 2a on page 14.) The AppeH.ant is a minister of the Presbyterian Church of Canada in con- nection with the Church of Scotland. He refused to join the Presbyterian unipn in 1875, and with ten other ministers, and a large congregational following, con- 40 tinned the Church of Scotland, which is still in full organization in Canada, having now in the Province of Ontario and Quebec thirty-four congreg;i lions. No. 64. Appellant's Case, filed 16th March 1880. p RECORD. In the Court of Queen's Bench. No. 64. Appellant's C:ise, filed IGth March 1880.— continued. , '= - , '- 378 Some of the leading and mo.st inlluential p»!ople in Canada maintain their con- nection with it. The pres<>nt .suit is virtually in behalf of all the members and adherents of the Ohurch of Scotland in Canada. The A[»pellant, tliougli deeply interested in the result, i.s not contending for personal gain. It is not the intention of the Appellant to submit a lengthy argument for the consideration of the Court. He is im[)elled to this couise, because the remarks of the Honorable Mr. Justice Jett6, who rendered the judgnu-nt appealed from, Contain a reasonably fair statement of the contentions of the parties, and a con- cise and, for the purpuses of this argument, a sufficiently correct resume of the events and legislation out of which the present litigation arose, and to which this 10 suit is pendent. The narrative, however, is not at places strictly correct, and at others is too cramped. For examj)le, it does not appear with sufficient clearness from Ins Honours remarks, as is the fact, that tin- Appellant and : ^e other commuting ministers agreed, on certain fundamental conditions, to renounce their personal claims upon the (/ommuted Fund, — and consented to accept a reduced life annuity on spec //te^/ conditions, in order that they might form a ^)erwaMe«< endowment for the benefit of the Presbvterian Church of Canada in connection with the Church of Scotland. The appendix to the Journals of the Legislative Assembly of Canada, for the 20 year 1856, (See Respondent's Factum p. 115, line 20,) establishes that the Govern- ment actuary estimated that the present (Petitioner) Appellant, was entitled per- sonally to receive an annuity of £150 per annum, on the amount of capital ap- portioned to him, namely, £2,200. The voluntary renunciation of individual ministers then made for the pur- pose of permanently endowing "The Church of our Fathers" is a .singular and Avorthy act of the devotion of the couiinutors to the Church of Scotland in Canada, (see the Pastoral Letter of the Reverend John Jenkins, D.D, moderator of the Synod,) that must challenge the respect and admiration of every man capable of appreciating sincerity of purpose and unadultered self-denial. The Government 30 transacted the l)usiness matter of paying over the aggregated individual claims to commissioners who produced the moral voucher of the Synod, in a resolution accrediting them to the government and the legal authority to transact and grant a discharge, in the indwidnal power of aitorneyfrom each minister. The Commissioners acted not only on behalf of the Church but as the attor- neys of the ministers separately. The Reverend Dr. Cook writing to individual ministers for their powers of attorney to authorize him to grant a receipt to the Government for the individual claims of ministers, reiterates in his letter (Appendix page 12, line 30) the fundamental conditions upon which the com- nniting ministers agreed to form the Temporalities Fuud, and expressed his 40 thankfulness " to Almighty God that a way so easy is open to them for conferr- " ing so important a benefit on the Church." The condition upon which the Appellant and the other ministers agreed to commute their claims is expressed in the first resolution of the Synod at pages 9 and 10 of the Appendix. '* 1st. That it is desirable that such commutation, if upon fair and liberal " terms, should be eflfected; and that the Rev. Alex. Mathieson, D.D., of Mont- 379 con- I and eeply it for niirks from, % con- )f the jhthis 10 is too •m I) is lilting ',rao)ial [inuity >nt for Jhurch for the 20 lovern- ed per- ital ap- he pur- ar and Janada, of the ble of rninont 30 lims to olution grant IV attor- idiial to the letter le com- scd his 40 con for r- agrced it pages liberal f Mont- Ih the Court uf Quern' t Bench. No. 64. " real, the Rev. John Cook, D.D., of Quebec, Hugh Allan, Esq., of Montreal, KEOORD. " John Thompson, E.sq., of Quebec, and the lion. Thomas McKay, of Ottawa " city, be the Synod's Commissioners, with full power to give the formal sanction " of the Synod to such commutation as they shall approve, the said Commission- " ers beinj' herebv instructed to use their best exertions to obtain as liberal terms " as possible ; the Rev. Dr. Cook to be ronvener ; three to be a quorum; the Je- " cision of the majority to be final, and their formal acts valid; but tliat '^"<^^i a ^^"ii^'^t' " formal sanction of the Synod shall not be given except in the case of ministers (j'gg fji^j " who have also individually given them, the said Commissioners, power and Itith March 10 " authority to act for them, in the matter to grant acquitt^mce to the Govern- 1880.— " ment for their claims to salary, to which the faith of the Crown is pledged ; <^^"'*""**' " and to join all sums so obtained into one fund, which shall be held by them till " the next meeting of the Synod, by which all further regulations shall be made; " the following, however, to be a fundamental principle, which it shall not be " competent for the Synod, at any time, to alter, unless with the consent of the " ministers granting such power and authority ; that the interest of the fund " shall be devotvd, in the first instance, to the payment of £112 10s. each, and " that the next claim to be settled, if the fund shall admit, and as soon as it " shall admit of it, to the £112 10s., be that of the ministers now on the Synod's 20 " roll, and who have been put on the Synod's roll since the 9th May, 1853 ; " and, also, that it shall be considered a fundamental principle, that all persons " who have a claim to such benefits, shall be ministers of the Presl)yterian " Church of Canada in connection with the Church of Scotland, and that they " shall cease to have any claim on, or be entitled to any share of said commutation " fund whenever they shall cease to be ministers in connection with the said '' Church." From the terms of this resolution and of Dr. Cook's letter, it is not surprising that the Appellant should have been lulled into a feeling of security and confi- dence that a '' permanent endowment" (3rd resolution, page 10, Appendix line 30 30) had been provided for the Church of Scotland in (janad:i. He renounced his rights, relying upon the good faith of the Synod, and uixin the stringency of " the fundamental principle (regulating the disposition of the capital and interest) " which (it was declared) it shall not be competent for the Synod at any " time to alter, unless with the consent of the ministers granting such power and authority. A clear undenstanding of the rights and claims of the Petitioner is essen- tial in order to appreciate the grievances of which he complains. Again, the Honourable Judge who rendered the judgment has unwittingly assumed that the Synod had supreme power in all matters regarding the fund in 40 dispute. The Synod's powiTs were sim[)ly supreme in ecaleaia-sticdl discipline, but it had no power (o (il/er (he Jispofiitioti of the/iuid m dispufe<. To a limited ex- tent it assumed power (not without remonstrance) to deal with a portion of the revenues arising from the fund. But as to the; capital, and by far the major portion of the revenues, the Synod was powerless, such matters being regulated in accordance with tlie fumlamental conditions (see Appendix, page 9 and 10) upon which the creation of the fund Wiis based, and the statutory enactment (22 Vic, ciip. 66, Canada) regulating the tenns of the Respondents' holding and administration. r llECOKD. In the Court of Queen's Bench. No. 64. Appellant's C;i8C, filed KJth March 1880.— continued. 880 Till' IV-titioiior iii.stiliitiid this action not :igiiiii,st tin- Synod or the Church, hut against the cx)rporation, RespoiuUnts, :in(l the mcinhera of the corporation. Against thos" ah>ne he founds his coinphiint, and they must justify their acts and administration, not by references to such moral coinitcnance as they pretend to have received from the Synod — a voluntary a.ss(Kriation, not a party to this issue — but by virtue of the pi)wers derived from the original Act of Incorporation and the amendment thereto (38 Vic, cap. 64) passed by the Quebec Legislature. The Kespondents must rely upon Legislative and not Synodical authority. The Respondents invoke the Act of the Quebec Legislature, which is 10 impugned by Petitioner as being unconstitutional, and beyond the competency of Provincial Legislation. It is clear at the outset that if the Provincial Act is within the com- petency of the local Legislature, the Petitioner is without legal ground of com- plaint. It is true the intention of the founders of the fund has been invaded. 1. The proof establishes that the original capital (amounting to £127,000) which could not be diiiiinished under the Act 22 Vic. cap. 66, Canada, has been trenched upon and rediiceil (under the authority of Amending Act, 38 Vic, cap. 64, sec. I) in four years of the Respondents' administration under the new autho- 20 rity, to the extent of |75,000. 2. The Provincial Acts establish that the extinction of the Endowed Church is not only sought, but openly contemplated, (38 Vic, cap. 61, sec 1 Quebec,) and that the balance of the fund must ultimately go "to aiding weak charges in the united church" (38 Vic, cap. 64 sec. 1). 8. The Provincial Acts further establish that the Appellant, though a founder of the fund, is now disfranchised, and depriveil of the right of administration, that privilege being reserveil only for "mini.-iters, or members of the united church" (38 Vic cap. 64, sections 3 and 8, Quebec). But if all these things may be constitutionally done by the Piovincial Legis- 30 lature, the Appellant recognizes that he is without relief from the Courts. The Appellant therefore seeks in limine to impugn the local Acts. It is not neces!ini)et«'nt to deal with matters coin- cident in character and extent with the domain of the Crown, in the old Province of Canada. Montreal, 11th March, 1880. Macmasteh, Hall & Greenshields, • Attorneys for Appellant. RKCOKD. /« the Court It/ Quern's liinrh. No. t)4. AppcllaDt'ii C'uHO, tiled Kith Murob 1880.— amtinueti. 20 Remauks of The IIonouable Mu. Justice Jette on Rendekfng Judgment. No. 64a. Remarks of (-4* reported in the '* Montreal Gazette" of bt/i Jauaary, 1880.) Mr. Justice The Reverend Robert Dobie, a minister of the Presbyterian Church of Canada rendering in connection with the Church of Scotland, a member of the Synod of the said the judg- Churith, and a minister of the Saint Andrew's Church and congregation of Mil- mentappoal- ton, in the Province of Ontario, obtained an injunction the 31st December, 1878, ^ '^°™' against the corporation. Respondents, ami against the Reverend M. M. Gordon, Cook, Jenkins, Lang and Mackerras ; M. M. Morris, Walker, Darling, Dennis- toun, Mitchell and Sir JIugh Allan, members of the said corporation, ordering them to abstain spoeially from disposing of the fund of the said corporation, by making any payments therefrom, and generally from all acts of administration of the property under their control, until further order of Court. In spit' of the 30 proceedings of the Respouflents, to have this order .set aside, the injun^Lion thus far stands, and the question now before me is on the merits of the Petition«,'r's claim. Although I have already given, in connoction with an incidental pro- ceeding in this case, an analysis of the legislation on which the present litigation is based, the imjiortance of the suit and the large number of persons, not par*^ies thereto, but interested therein, almost equally with the litigants themselves, leads me to recin' to this legislation, so as to make the claims of the parties clear and easily understood. The Quebec Act (1774) had guaranteed to the Roman Catholic clergy the 40 right they ix)ssessed before the cession of this country to ilngland, to demand and receive their customary (Umef< or tithes. The Protestant clergy saw in this guar- antee a privilege accorded to the Roman Catholic Church which justilied ihem in claiming a corresponding favor. In 1791, by the Statute 31 George III, cap. 31 d Parliament, wishing to acknowledge i (' Qi Act), the Impi RECORD. In the Court of Queen's Bench. No. GtA. Honinrks of iMr, Justice Jottd, on renderinj< the judg- iiicutappeul- ed from. — continued. 384 tliis clniii), iw\i\o proviMloti for tlio Hiipport of ii HroteHtaiit rlorf!,y in the two Prov- iiK'os of lIppiT ami Lower (Jiimulii in saiK^tiotiin^f mi iH)[)i'o|)ri!ilion by the (iovcrii- inciits of these two I'rovincoH of a reserve for this puipuse of i;ertiiin laiuls from the public domain, 'rhosi; laiid.s thiin appropriiitod were styled (Jlerj^y Iteserves. In 1827, by the Act 7 and S (Jeor<;v IV, the Iinpcriid Parlinment authorized the Pjde of a part oi" these hinds, on condition that the proceeds were invested in the putilic fluids jind the revenues exchisively applied to the maintenance of a Protostant clergy. In 1810 the Statute )> and i Victoria, ch. 78, sanctioned the sale of all these lands, under certain restrictions as to the (piantity to be sold iinnutdly. In 18515 the Imperial Parliament authori/eii the Legislatiu'e of the 10 United Province of Canada to legislate for the nuimigemcnt of the Clergy Reserves, with this restriction, that the moneys theretofore given to the clergy of the Clurehes of England and Scotland, or to any other denomination of Christians, should not be withheld, reduced, or in any manner atfectcd l)y the legislation of the said Province during the lives of the i)ersons having a right in t.ie said an- nual grant (10 Victoria, ch. 21). By virtue of the powers conferred on it, t)ie Legislature of Canada enacted in 1854 (18 Victoria, eh. 1) that the proceeds of the lands constituting the " Clergy Reserves" situated in Upper Canada and those in Lower Canada should form two separati' and distinct finids, which should be styh^d, respectively, " The 20 Municipalities Fuml oi' Upper Canada" and tlu' •'Municipalities Fiuid of Lower Canada," and that, conlormably to the Imperial Acts, those funds should be charged, (irstly, and in prcf -rence over any other charge, with the payment of the above-nuiitioncd aiuuial allowances to the Protestant clergy, (hu'ing the lives of the incund)ents, who bad this right at the time of the sanction of the Statute 16 Victoria, ch. 78, namely, the 9th May, 1853. To secm'e this payment it was enacted, that the capital rLCpiired to guarantee these annual allowances should be invested in the public funds, and the surplus, if any, a[)portioned to the munici- palities of the said two Provinces, according to population. The rights which the Imperial Parliament desired to protect and secure under 30 the Statute IG V^ictoria, ch. 78, were thus presi-rved, but the system thus organ- ized made the State the debtor for these annual appropriations, and the adminis- trator of the fund representing the same, during the full term of the lives of the then incumbents. The third secticm of this law clearly indicates that this style of enactment, adopted to satisfy the rule of the Imperial Act, was not what our Parliament preferred. Anxious to put aside all a[)pearance of union between Church and State, as it d.clared, and to settle promptly and finally all reclama- tions that might exist against these funds of the '' Clergy Reserves," the Legisla- ture, by this 3rd section, autluaized the Executive to commute and extinguish the same, with the consent of the parties interested, by the immediate payment to of the capital (at the rate of 6 per cent.) calculated on the basis of the probable life of each incumbent. At the beginning of this legislation the clergy of the Church of England had been alone beneiitted, and had raised the pretension of being solely entitled to the benefit of these reserved lands. But about the yt.ir 1820, the members of the Church of Scotland presented a claim, as well for their clergy as for those of the other Protestant denominations, for a share and interest in these Reserves, 386 PlOV- vt'ni- iVoiii •rvi'rt. )rized 0(1 ill i ol" a l1 the 3 HoM )f the 10 ervi'H, )f the ■^tians, ion of ,id un- iiacted ig the should " The 20 Lower lid he eiit of e lives Uiitute it was Id be uinici- imder 30 organ- niinis- d" tiie wtyle [it our twecn lama- 'gisla- iguish yment Ki obable iglaiid ntitlod rnibera those serves, proportioned to the nuinbcr of the momberH of each (Jhurch. This reclamation, for a long time contested tind opposed, was linall} admitted, and when the Statute of 1851, to which I am about to refer, was piisscd, the right of the minis- ters of the Presbyterian Church of Cnnada in connection witli the Church of Scotland to the benefits of this statute had been for a long time acknowledged. The provisions of the law of 1854, relative to the commutation of the nnnual allotments, payable to each ministtT, appearing satisfactory, a meeting of Synod of said Churi'h was convoked to decide on united action in relation to this com- mutation. The meeting was held in January, 1855, and the following resolution 10 unanimously adoj)ted : " Resolved, 1st. That it is desirable that such commutation, if upon fair and liberal terms, should be ert'ected ; and that the Rev. Alexander Miithieson, D.D., of Montreal, the Rev. John Cook, D.l)., of Quebec, Hugh Allan, Esq., of Mont- real, John Thompson, Esq., of Quebec, and the Hon. Thomas McKay, of Ottawa city, be the Synod's Commissioners, with full power to give the formal sanction of the Synod to such commutation as they shall approve, the said Commissioners being hereby instructed to use their beat exertions to obtain as liberal terms as possible ; the Rev. Dr. Cook to be convener ; three to be a quorum ; the decision of the majority to be fin;il, and their formal acts valid ; but that such formal 20 sanction shall not be given, except in the case of ministers who have also indi- vidually given them, the said Commissioners, power and authority to act for them in the matter, to grant acquittance to the Government for their clairas co salary, to whicli the faith of the Crown is pledged ; and to join all sums so ob- tained into one fund, which shall be held by tliem till the next meeting of Synod, by which further regulations shall be made ; the following, however, to be a fundamental principle which it shall not be competent for the Synod at any time to alter, unless with the consent of the ministers granting such power and 'luthority ; that the interest of the fund shall be devoted, in the first in- stance, to the payment of £112 10s. each, and that the next claim to be settled, 30 if the fund shall admit, and as soon as it shall admit of it, to the £112 10s., be that of the ministers now on the Synod's roll, and who have been put on the Synod's roll since the 9th May, 1853 ; and also, that it shall be coihMdered a fundamental principle that all persons who have a claim to such benefits shall be ministers of the Presbyterian ( -hurch of Canada in connection with the Church of Scotland, and that they shall cease to have any claim on or be entitled to any share of said connnutation fund whenever they shall cease to be ministers in connection with said Church. *' 2nd. That so soon as said commutation shall have been decided upon, and agreed to by Ihe said Commissioners, the Rev. John Cook, D.D., of Quebec, shall 40 be fully empowered and authorized, and this Synod hereby delegates to the said Rev. John Cook full power and authority to endorse and assent to the several Powers of Attorney from the individual parties on behalf of the said Synod and in their name, and as their act and deed, as evidencing their assent thereto. "3rd. That all ministers be, and they are hereby enjoined and entreated (as to a measure by which, under Providence, not only their own present interests will be secured, but a permanent endowment for the maintenance and extension of religous ordinances in the Church) to grant such authority in the fullest man- RECORD. /» the Court of Queen't Bench, No. «4a. ReniarkH of Mr. JuBtioo iTcttd, on roDdering the judg- nioiit appeal- cd from. — eontinutd. ij \i RECORD. In the Court of Queen^s Bench. No. 64a. Remarks of Ml. Justice Jett^, on rendering the judg- ment appeal- ed from. — continued. » r 386 ner, thankful to Almighty God that a way so easy h'es open to them for confer- ring so important a benetit on the Church. "4th. That the afoi'esaid Connnissioners be a committee to take the necessary steps to get an Act of Incorporation for the niiuuigement of the general funds so to be obtained, the aforesaid Commissioners to constitute the said corporation till the next meeting of Synod, when four xnore members shall be added by the Synod." Agreeable to this resolution all the ministers of the said Church gave full }X)wer to -he Commissioners, named for this purpose by the Synod, to arrange with the Government, and to unite all the sums thus realized in a common fund, 10 according to the terms of the said resolution. The commutation of the several individual reclamations produced a sum total of £127,448 5s Od, which the Go- vernment handed to the Connnissioncrs named by the Synod. In 1858 these Connnissioncrs acting according to the instructions contained in the aforementioned resolution (§4), demanded and obtained from the Parlia- ment of United Canada an Act creating a special corporation for the administra- tion and the possession of this fund of ,£127,448 5s Od, and of all other sums by which it might thereafter be increased. Tliis corporation received the name of " The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland," and is one of the 20 Respondents in this case. (22 Victoria, chap. GG.) It is declared hy this statute that this corporation is (jreated " for the management and holding of certain funds " of the Presbyterian Church of Canada in connection with the Church of Scot- " land, now held in trust by certain Commissioners, hereinafter named, on behalf " of the said Church and for the benefit thereof; ' " but by the first section it is en- acted that "such holding is subject always to the special condition that the " annual interest and revenues of the said moneys and fund now in their hands " shall be and remain charged and subject, as well as regards the character as the " extent and dui-ation thereof, to the several annual charges in fiivor of the " several ministers and parties severally entitled thereto, of the several amounts 30 " and respective characters and durations as the same were constituted and de- *' Glared at the formation of the said funds and the joining of the same into one "fund." The second section of this statute then provides for the mode of election and replacing of members of this Board created a corporation as aforesaid. According to the dispositions of this section, the Board shall be composed of twelve mem- bers, five being ministe'-s and seven laymen ; four of these members in order of seniority, viz., two ministers and two laymen retiring each year, on the third day of the annual assembly of Synod of said Church, and being replaced by two ministers and two laymti'. elected by said Synod. In case of death, resignation 40 or absence from the Province, or withdrawal from communion in said Church, the vacancies shall be fi'led ijy the other members of the Board, subject to the ratifi- cation of the appointments thus made by the Synod at its next ensuing meeting, BO that, as stated in the second section, " this Board shall always consist of twelve " members, five of whom shall be ministers and seven laymen, and all being min- " isters or members in full communion in said Church." The members of this Board, thus organized, theiiceforth administered the 387 ifer- sary is so I till ' the J full with fund, 10 veral ; Go- [\ined arlia- istra- ns by me of terian if the 20 tatute funds Scot- behalf is en- X the hands as the of the lounts 30 d de- o one )n and ording me Ol- der of third )y two nation 40 ch, the ratifi- eeting, welve I min- ed the property of said Church conformably to the powers conferred on them, without RECORD their right having ever been questioned until the occurrences which gave rise to the present litigation. It results from the facts proved, that from 1870 and 1874 a proposed fusion oT the Presbyteriiin ('lunch of Canada in connection with the Church of Scotlimd, with thiie other Cluuches, viz. : The Canada Presbyterian Church, the Church of the Maritime Provinces in connection with the Church of Scotland, and the Presbyterian Church of the Lower Provinces, had been more or less discussed at diiferent times. In the Court of Queen's Bench. No. 64a. Remarks of Mr. Justiod In 1874, the conditions of this fusion appearing to be acceptable to the parties Jettd, on 10 interested, an Act was sought and obtained from the Legislature of Ontario, rendorin}^ authorizing the union and fusion of the said Churches, .so as to form but one body ''>^j"*^g- or denomination of Christians, under the name of the ''Presbyterian Chureh i" ^^"vom^^'' * " Canada." This Act is the 38th Victoria, ch. 75, of the Statutes of Ontario, and —continued. was sanctioned the 24th Deciinbcr, 1874. The provisions of this statute, of which the existence and authenticity are admitted, are of great importance, and have considerable bearing on the right • of the parties in this cause, it is therein firstly declared : — That all the property situated in the Province of Ontario, and held at the time of the union of the said Churches by every congregation in connection or 20 communion with auy (;f them, shall thenceforth belong to the said United Church, with this restriction, neveitheless, that those cougregations of the said Churches which are unwilling to enter into this union might within six months declare their dissent by a vote of the majority of their members, and in such case the property of such congregation dissenting should not be affected by the said statute. Then section 8 of this statute declares that as the ministers of the Pres- byterian Church of Canada in connection with the Church of Scotland are entitled to receive an annual revenue, proceeding from the funds styi*'d the " Temporali- ties Fund," administered by a Board incorporated by the heretofore Province of Canada, and as it is proposed to maintain intact for these ministers during life 30 this annual revenue, it is enacted that tlie present members of this Board shall continue in office and administer the said fund on behalf of the ministers now deriving a revenue therefrom ; this revenue being preserved intact for the said ministers so long as they shall remain Presbyterian ministers in good standing in the Dominion of Canada, whether in active service or retired, and whether they are or are not in connection with the said United Church. Lastly, that so soon as any part cf the revenue provided from this fund is not required to meet the payment of the annual allowances coming to the said ministers, or oJ' any other charge or expense on said fund, such part of said revenue shall be placed at the disp(,sal of the said United Church ; and after the 40 death of the last survivors of said ministers, any balance of said fund shall belong to the said United Church. By a linal enactment of the said statute, it is de- clared : " that the union of the said Churches shall be accomplished so soon as the " terms of the saiii union arc signed by the moderators of each of them." Such are, in substance, the provisions of this statute which bear on the present litigation. At the same time that this legislation was obtained from the Legislature of Ontario, a similar law was sought from the Legislature of Quebec, which passed RECORD. In the Court of Queen's Bench. No. 64a. Remarks of Mr. Justice Jett^, on rendering the judg- ment appeal- ed from. — continued. I ( 'i 388 the .statute 38 Victoria, cli. 62 (sanctioned the 23rd February. 1875). This statute corresponds exactly with tlmt of Ontario, and enacts : " First l3^ That the ownership of the property situated in the Province of " Quebec nnd belonging to every congregation in coiniection with any one of the " said United Ciiurches shall pass immediately, on the consununation of the " union, to the said United Church, unless a vote of the mnjority of such congre- " gation rejects such union, in which case tlie said property shall not be affected " by this law. The 11th section of this statute then repeats, with certain modi- " hcations, the provisions of section 8 of the Statute of Ontario, relative to the " Temporalities Board of the Presbyterian Church of Canada in connection with 10 " the Church of Scotland ; and after having stated that this fund is administered " by a Board incorporated by the heretofore Province of Canada, and that it is " proposed to maintain the revenue of the said fund for the ministers having a " right therein, and to their successors, even if the congregation over which " they preside does not enter the union of the said Churches." The section enacts . " That the present members of the said Board shall continue in office " and manage the said fund on behalf of the said ministers now deriving " revenue therefrom, and the income to said ministers shall be continued to " them and to their succes.sors, as aforesaid, so h;ng as such Presbyterian min- 20 " isters are in good standing in the Dominion of Canada, whether exercising " their ministry or retired, or whether they are or are not in conriection " with the United Church ; provided that the successors of ministers of con- " gregations, in the Province of Quebec, in existence at the period of the union, " and not entering into the same, shall preserve the same rights to the benefits ** of the Temporalities Fund, as they would have had if such union had not " occurred." It is further declared by the same section of this Act, that so soon as a part of the accumulated revenue of the said fund shall not be required for the pay- ment of the annual allowances to the ministers entitled thereto, it shall pass to 30 the said united Church, which shall have the property therein, and may dispose of it, and that it shall ' the same with that Inch shall remain of the said fund, after the death of the last of the incumbents having a right in the said revenue. This 11th section also enact.s, tiiat each vi>cancy occurring in the said Tempo- ralities Board (namely, the corporation. Respondents), shall not be filled in the manner heretofore adopted, but in the maimer provided by an Act passed during the same session and entitled "An Act to amend the Act intituled ' An Act to " incorporate the Board for the management of the Temporalities Fund of the " Presbvterian Church of Canada in connecti(m with the Church of Scotland.' " Lastly, section 14 enacts : That the union of the said Churches shall be com- 40 plete, so soon as a notice shall be published in the Quehec Official Gazette, dechw- ing that the articles of this union have been signed by the moderators of the said respective Churches. As appears by this analysis, the enactments of these two Statutes of Quebec and Ontario are substantially identical. The only differences to be observed are, 1st. That the Statute of Quebec secures the right in the revenue of the Tempo- ralities' Fund of the said Presbyterian Church of Canada in connection with the 389 This ice of if the f the ngre- ■ected inodi- i the with 10 jtered it is ing a which ectiou office riving ed to 1 mill- 20 •cising ection f con- uiiion, 3nefits id not a part e pay- )ass to 30 spose fund, t'enuc. empo- n the uring Vet to of the 1 ' " e com- 40 eclar- of the Quebec d are, empo- th the Church of Scotland, not only to the actual ministers, as the Ontario Statute does, but iilso to their successors; and 2nd. That the Statute of Quebec subjects the filling of vacancies (m the Teiupornlities Board, to the special provisions of the Act to which 1 iun about to refer, while the Statute of Ontario maintains purely and simoly the administration of this fund to the actual members of the Board. At the same time that the Quebec Legislature passed the Act for the union of the said Churches it passed anotluir Act, 88 Victoria, chap. 64, to amend the Act of Incorporation of the Temponilities Board of the siU(i Presbyterian Church 10 of Canada in connection with the Church of Scotland. This second Act, which is a natural sequence of the former one, may be said to be its complement. The Legislature eommencos by ileclaring that the union of the said Churches and the resolutions of the Synod of the Presbyteriiiii Church of Canada in connection with the Church of Scotland, adopted in conscqucnice and referring to their temporali- ties, render it necessary to change certain regulations in the charter incorporating the said Board, wherefore it enacts : 1. That until the rights of the ministers and probationers of the said Church in the said Temporalities Fund shall have ceased to exist, this property shall continue, as heretofore, entrusted to a Board, whose functions shall be con- 20 tiiuied, after the completion of the said union, in the manner provided in the said Act, which Board shall administer the property according to the same principles and for the same objects as at present, and it is declared that these rights shall be established as ti)llows : (1.) The annual payment to ministers now receiving four hundred and fifty dollars (^450), (our himdred dollars ($400), or two hundred dollars ($200) will be the same amount during their lifetime and good standing in theCJhurch. (2.) The annual payment of two thousand dollars ($2,000) granted to Queen's College will ])e continued in perpetuity. (3.) The annual payment of two hundred dol- lars ($200) to all the ministers who shall be on the Synod's roll, and by all 30 recognized probationers and licentiates engaged in active service at the time of the union, will remain the same during the lifetime and good standing in the (Jhurch of such ministers, probationers or licentiates; all salaries of two hundred dollars to l)e increased to four hundred dollars each when tiie recipients of them shall have retired from the active duties of the ministry. The Temporalities Board shall, if necessary, draw upon the capital of the fund to meet the aforesaid require- ments. Then it is provided that so soon as any part of the revenue accruing from the said fund, or any part of the fund itself which is not required to meet the payments of said charges, shall be subject to the disposal of said united Church. 40 2. That all ministers and probationers possessing rights in the said Tem- poralities Fund, who^decline to become parties to such union of the said Churches, shall be entitled nevertheless to all their rights as if they had entered into such union, so long as they shall continue to be Presbyterian ministers in good stand- ing within the Dominion of Canada; and that the successors of these ministers shall letaiii the same rights in the said fund as if the union of the said Churches had not taken place. 3. That jis often as any vacancy in the Board of Management of said Tem- RECORD. In the Court of Queen's Bench. No. 64a. Remarks of Mr. Justice Jette, on rendering the judg- ment appeal- ed from. — eontinued. m 1 ' ; mi r RECORD. In the Court of Queen's Bench. No. 64a. Remarks of Mr. Justice Jett^, on rendering the judg- ment appeal- ed from. — continued. 390 poralitics Fund occurH, those beneficiivvit's muy each noiniiiate a person being a minister or member of thi- said United Chinch, or in t!ie event of their being more than one v,.cancy, then one person for each vacaucy, and the reniani'nt mem- bers of the said BoariJ shall theren[)on, from among the persons so nominated as aforesaid, elect the [)erson or number of persons necessary to (ill sneh vacancy or vacancies, selecting the person or persons who may l)e nominated by the largest number of beneficiaries, but in the event of failure on the part of the benefieiarifs to nominate as aforesaid, the remanent meuibers of thi- Board shall lill up the vacancy or vacancies from among the ministers or menibi-rs of the said United Church. 10 Section 8 provides that the third section of this Act shall continue in force until the number of beneficiaries is reduced below fifteen ; and so soon as the nmnber of beneficiaries is reduced below (ifti'en the said Board shall be continued by the remanent members filling up any vacancy or vacancies from among the ministers or members of the said United Churi-h. The remaining enactments of this Act apidy only to the rules of [)rocedure to Ije followed in the election of new members of the Board, in case of vacancies, and for the auditing of the ac- counts of the administrators. The last provision is that this Act shall come into force so soon as a notice shall be published iu the Quebec Official Gazette that the union of said four Churches has been consummated. 20 These several statutes having been sanctioned and in force, the Synods of the four Churches, the union of which was authorized by the corresponding statutes of Quebec and Ontario, assembled in Montreal in June, 1875, to eonsunnnate the proposed union. Agreeably to a previous understanding with the other Churches, the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, assembled in St. Paul's Church, in Montreal, and on the 14th June, 1875, decided by a very large majority, that on adjourning next morning it would proceed to the Victoria Hall, the appointed place for the consummation of the said union and the holding of its General Assembly of the said Churches, under the name of the General Assembly of the " Presbyterian Church in Canada, 30 and at the same time gave full power to its modeiator to sign in the nauK? of the Synod, the preamble and the basis of union, and also the resolutions adopted re- lating to those documents. The Petitioner and nine other members of Synod protested in writing against this resolution. The following day, the 15th June, 1875, the Synod being assembled in tlnisaim- place, a notarial protest was served (m the moderator against the projected union of the said Churches, in the name of several members of the said Presbyterian Church of Canada, and among others of the Petitioner. Notwithstanding this protest, the Synod adjoiu'iied to the Victoria Hall, as resolved the previous evening. Agreeably to this resolution, the great majority of the members of the aforesaid Synod proceeded to the Vic- 40 toria Hall, where the members of the Synod of the otjjer Churches had also as- sembled the documents relative to the union of the said Churches were signed, and the members of the said Synods then organized themselves into a General Assembly of the United Church, under the name of the " Presbyterian Cbiirch isi Canada." Nevertheless, after the departure of this majority of the members of Synod of the said Presbyterian Church of Canada in connection with the Church of 391 g a iing em- 1 as ^ or gest irii'3 tho litt'd force 1 the nued ; the ts of )n of e ivc- ' into .t the 10 'g 20 jf the itutes ;e the rches, lurch June, it of hes, naila, 30 the re- nod une, ved name thers the ution, c Vic- 40 so iVS- igni'd, neral irch i:i Synod ch of on Hi 5y er o Scotland for the Victoria Hall, the minority who had i)rotested against the union, RECORD. and who had remaiiifd in the buildini; where the Synod met, chose the lYti- •/ 7 1*1% tioner as moderator, in placo of the one who had left with the majority, and con- ,, - tinued the proceedings of SynoJ of the said (jhurch. Persisting thenceforth in Queen's their refusal to futer the said united Church, this minority continued to hold. Bench. each year, its ;innual Synodical meetings, declaring that it formed and constituted — 7- the Presbyterian Church of Canada in connection with the Church of Scotland, „ i"*^",. and that those persons wlu) had adcjpted the union, had abandoned the said j^i^. Justice Church, and had voluntarily separated thcMnselvos therefrom, and no longer Jett(5, on 10 formed a pait thereof. Starting from this point, the Petitioner, after having renderit.g stated in his petition his (piality of minister of the Presbyterian Church of '^J** »' . Canada in connection with the Chtu'ch of Scotland, iind his right to an annual ^.j i'ro^_ revenue of $450 for life from the Tem[)()r.ilities Fund of the said Clmrch, as being —continued, one of those who i 1855 profited by the counnutation offered by the Govern- ment of Canada, and alleged that this fund hud been created, subject to the con- ditions formally stated in the resolution of Synod, (;onilitions recognized and gua- ranteed subse(piently by the Act of incorporation of the Board to whom wiis entrusted the administration of the fund, adds: That the Statute of the Province of Quebec, 38 Victoria, ch. 64, amending 20 the Act of incorporation of the Temporalities Board, is unconstitutional ; that it exceeds the jurisdiction and authority of the Legislature of the s;iid Province, and consequently is null and of no effect. The reasons stated by the Petitioner in support of this allegation are : 1st. That the powers granted to the corporation under the Act of the Par- liament of Canada, 22 Victoria, ch. GO, are not limited, and applicable to one Province only, but are of a general nature, and aflect the rights of persons resi- dent in the two Provinces of Quebec and Ontario. That consequently the Act of the Legislature of Quebec amending this statute is not of a local and private nature, but aQects the rights of persons not resident in this Province, and not 30 subject to the jurisdiction of its Parliament, and therefore is in exce.ss of its authority. 2nd. That the rights and interests of the Petitioner in the Temporalities Fund of the said Presbyterian Church are not of a private nature, but are a matter of general interest. 3rd. Lastly, that the said Provincial Act is unconstitutional : 1st. In that it authorizes the payment of the annual allowances to the ministers who have ceased to be members of the Presbyteriiin Church of Canada in connection with the Church of Scotland. 2ad. In that it allows the corporation, Respondents, to draw^ on tho capital of this fund to pay the amuial allowances. 3rd. In that it 40 provides for the filling of vacancies in the Temporalities Board with members of the united Chuich; thus depriving the beneficiaries of all right of administra- tion of the said fund, contrary to the dispositions of the Act creating the said corporation. Cunse(|ueMtly, the Petitioner alleges that the Provincial Act has no legal existence, that the St;itiite of 1858 alone is in force, and that the rights of the piu'ties are governed by its provisions. The Petitioner then alleges that since the 15th June, 1875, the Revs. John Cook, James C. Muir and George Bell became members of the said United Church, •il^' 1 RECORD. In the Court of Queen's Bench. No. 64a. Remarks of Mr. Justice Jettii to all matters not conring within the classes of subjects by this Act " assigned exclusively to the Legislatures of the Provinces." This section then enumerates a general list of subjects, exclusively entrusted to the Federal Parliament, but declaring that this enumcn'atiou is not limitative, except as to the subjects exclusively entrusted to the Local Legislatures. The 92nd sec- tion regulates and determines the exclusive powers of the Provincial Legislatures, and declares : " Section 92. " In each Province the Legislature may exclusively 30 " make laws in relation to matters coming within the clas.ses of subjects next " hereinafter enumerated ; that is to say : llth. The incorporation of companies " with Provincial objects, loth. Property and civil rights in the Province." Property and civil rights are thus, in virtue of this disposition of our present constitution, submitted to the exclusive control of the Provincial Legislatures. Now, what was the object of the corporation created by the Statute 22 Victoria, cap. G6 ? Nothing else than the ownership and the possession of certain property; that is to say, that the Legislature of United Carnula has accorded, by this Act, those rights wliich are included specially in the; category of subjects exclusively entrusted at the present time to the Provincial Legislatures It is true that under 40 the former regime the two Provinces being subject to a Legislative union, these same rights were under the control of the Legislature of the Union, and conse- quently the privileges accorded in this respect to corporations created by this ParliameJit extended (exc(?pt when s[)ecially restricted) to all the territory sub- ject to its jurisdiction. But the extent of this territory, whether more or less, does not change anjthing in the nature itselt of these rights; and since these rights are now entrusti.'d to the Provincial Parliament, can it be pretended that COIl- V("'8, it ion ;ti()ti (iiBon irded iility )i HO :;tory pre- ■ov«'d ;e in ty of 1, the iogis- eviMi sH the 1807, 20 il lor ise of inada, s Act .This o tlie \cept .sec- ures, vely :iO next allies ewent iires. tnria, lorty ; Act, ivoly under 40 tliese ranse- V this sul)- Ic'KS, these U that In the Court of Qaern'i lienrh. it hdrt neither the right nor the povvei to legishite in ,\ manner to affuct IlEiJOKI) them ? Certiiinly not. The change in onr political syntem cannot have had tile clVeet of reiidt'iiiig pcriietuiil wliut has hcen done in the [last ! It is to be assumed rather thiit property and eivil rights then ah'eady in existence, and having been estahlished in the past, as well as [jropert}' and civil rights to he estal)liHh('d lor the future, are made subject to the jurisdiction of tin- I'rovincial — 7- Legislaturcs. It must Ir* admitted, therefore, that the changes which the Par- i, . ' 'l^'^'p liainent of United (Jaiiada could have made, and no one will deny that it had the y\y Justice absolute right to imike, in the Act of Incorporation of the " Temporalities Fund," .Jcttt<, on 10 the Legislnture of the Proviiau' of (Jnebe(! can make with the same authority and rcndcrin<; the same effect within tb(! limit of the teiiitor\ attributed to its jurisdiction. •^''«J"''k- But, says the Petitioner, it is exactly this restri<5tion as to territory which Siives ed^jvom my rights; not having a domicile in this Provin(!e, I am not subject to the con- —continued. trol ol'this Legislature, and therefore my rights cannot be atfected by this legis- lation. This olijection is not serious. The constitution, in subjecting property and civil rights to the control of the Provincial Legislatures, did not make and could not make a distinction between the possessors of these rights; it has not limited the legislative authority to the ca.so where the property belonged to a resident only ! No, all rights of property, whether po.ssessed by a resident or a 20 non-resident, are under the authority of the legislative power of the Province, An}' other interpretation of our constitution would be contrary to the best estab- lished princii>les of the civil law and of the [)ublic law. Therefore, either the rights which the Petitioner claims exist in this Province or they do not. If they do not, what can he seek from this Court? If they do, they only exist as recog- nized by the laws passed or niiuutained by our Legisla^v.re. Now, I find that this Legislature has changed the dis[)ositioii of the property, from whence tiow the rights of the Petitioner, in two important lespects : 1st, as to the administra- tion; 2nd, as to the final di.sposition of the fund constituting this property. Firstly, as to the administration, the Statute 33 Victoria, cap. 64, of whicdi the 30 annulling is sought, completely justifies the action of the corporation, Respond- ents, and of the members composing it. Secondly, as to the final disposition of the Temporalities Fund, the Stiitute 38 Victoria, cap. 62, which is not attacked, while securing to the present ministers their annual incomes intact, transfers finally the property of this fund to the United Church under the name of the Presbyterian Church in Canada. Now, it appears to nie incontestable, according to the provisions of our Con- stitutional Act, that these two Acts, in so far as they affect civil rights and rights of property (and there are none other in (piestion before this Court), were within the authority and jurisdiction of our Provincial Legislature, and therefore th:'*^, 40 they irrevocably' settle the rights of the i)arties. In the face of this legislation, it is impossible for me ti» declare that the lles[)()iidents have acted illegally and without right in the administration of the fund entrusted to them ; that these same Respondents are not legally members of the said corporation, Respondents, and that the '* Teni[)oralities Fund" does not belong to tin* Church, to which the law attributes it, and that it cinnot be applied in the in inner provided by that law. And if the Petitioner seeks to complain of the arbitrariness and injustice of 4 1! -i RECOUD. In the Court of Queen n Jiench. No. fit A. Remarks of Mr. Justice Jetfd, on rcnderinp; the judg- ment appeal- ed f'roui. —continued. Appendix to Appellant's Case. 898 the^e IcgiMlativu onaetinentH which deprive hitii ol rijihl.s of [(lopeity which Im coiiHiilerecl iiiviohi'tle, I iiuiHt an.swiir tliiit it is not my mi-ssion to iicconl U) hiiti a protection which the hiw rcfiiHi's, nntl that nothing would hr. more danperoiw thiin for the Courts to aHsiime th-* pow^-r of rejei^ting a positive hiw under thu pretext that it was iinjuHt. "There would Ix' (says (Jooley, puge 107,) very •' great probability of unj)leasinit and dangerous conllict of authorities if the "Courts were to deny validity to legislative ai-tion on subjects within their con- "trol, on the assumption that the Legislature hail disreganU'd justi(M' or sound " policy. The moment a Court ventures to suljstitute its own judgment for that '* of tlie Legislature in any case where the Constitution has vested the Legiala- lo " ture with power over the subject., that moment it enters upon a field where it " is impo38it)le to set limits to its authority, and where its discretion alone will '' measure the extent of its interference. The rub' of law upon this subject ap- " pears to be that, except where the Constitution has ini[)osed limits upon the " legislative power, it must Ijc considered as practicallj- absolute, whether it operate *' according to natural justice or not in siiiy [)ariicular wuse. The Courts are not " the guardians of the rights of the pe{)[)le, except as tho.so rights are secured by *' some constitutional provision which comes within the judicial cognizance. Tin; " protection against unwise or oppressive! legislation within constitutional bounds, *' is by an appeal to the justice and patriotism of the repi'esentatives of the [)eople. 20 " If this fail, the people in their sovereign capacity can correct the evil, but Courts '•cannot assume their rights. The judiciary can only arrest the execution of a " statute when it contlicta with the cojistitutior.. It cannot run a race of opinions "upon points of right, rea.son and expediency with the law-niidving power. Any " Legislative Act which does not encroach u[)on the power ai)porlioned to the "other departments ()♦' the Government [m'lng 2)i'lma facie valid, must be enforced, " unless restrictions upon the legislative authority can be pointed out in the con- " stitution and the ca.se shown to couii! within them." The writ of injunction issued in this cause inust, therefore, be set aside, and the Petitioner's demand icjected with costs. 3(i Appendix. Petition. (Already printed.) See page 16. Affidavits in support of Petition. (Already printed.) See page 3!). Answeis to Pleas. (Alrendy printed.) See page 140. Deposition of Kev. Gavin Lang. (Already priiit';d.) See page 147. Admissioji of Parties. (Already printed.) See page 154. Deposition of Douglas Brymner. (Already printed.) See page 184. Deposition of Rev. Gavin Jjang. (Already printed) See page 225. Deposition of Sir Hugh Allan. (Already printed.) See page 227. Deposition of James Croil. (Already printed.) See page 229. 40 (Endorsed.) Appellant's Factum and Appendix — Fileil 16th March, 1880 (Paraphed) L. W. M. 390 Province! of Qui l)ir, District of Moutnal. Document IX. Court of QuouirH Bench, Appeal Siil'j. The Reverend Robert Dobie, (IVtitioner in the (jouvt below) Appellant. and The iioard for the Miiiiiifi:;i'nieiit of the 'IVMnporiditiew Fund of the L*re«lt}teriiin Church of Canada in RECORD. /n thr. Court of Bfneh. No. (JR. RcnpondcntA Caso, filed 24(h Fob ruary ISS'). 10 t!oiniection with the Church of Scotland," el uL, (RespondentH in the Court below,) - - Res[Kjndent8. Respondents' Factum. Proceedings in this case commenced by nn ox pa He injunction, obtained hy the Petitioner on the 31st day ol' Uocembcr, 1878, from the Honorable Mr. Jus- tice Jette, in Chambers, wbcrcby the Res[)ondents wen; enjoined, pending .such furlhiT order and judgment as iidght be rendered, "' to suspeml any and all acts " and proc«a'dings in their several capacities, respectively, in respect of the pay- " nient oi'all sums of money, and of the administration of the funds under the "control of the siid corporation. Respondents, and in respect of all other matters 20 " in dispute in this cause." The Respondents were the above-mentioned " Board " and the eleven mem- bers theretriotism of the representatives of the people. ^ *v' , " If this fail, the people in their sovereign capacity can correct the evil, but Courts (j^gg «i(,j *' cannot assume their rights. The judiciary can only arrest the execution of a 24th Feb- 10 " sttitnte wlien it conflicts with the constitution. It cannot run a race of opinions I'uary 1880. *' upon points of right, reason and expediency with the law-making power. Any contwwd. " Legislative Act which does not encroach upon the power apportioned to the "other departments of the Government htnng; prima facie valid, must be enforced, " unless restrictions upon the legislative authority can be pointed out in the con- " stitutiun and the case shown to come within them." The writ of injunction issued in this cause must, therefore, be set aside, and the Petitioner's demand rejected with costs. Before leaving this branch of the case the Respondents desire to cite the elaborate and learned judgment of His Honor Vice-Chancellor Blake, rendered 20 in Ontario in the case of Cowan and Wright, 23 Grants Chancery Reports, p. GIO, wherein ho maintiiiued the constitutionality of the Ontario Act, 38 Vic , c. 75, which contains provisions identical with those in the Act impugned in this case by Petitioner. 2nd Proposition. The Church did a lawful act in consummating the union and therefore retained their property, including this Fund, without requiring the sanction of an Act of Parlinment. This opens the door to the discussion of the ecclesiastical view of the question. The Petitioner's counsel have asserted that the Presbyterian Church of Canada in connection with the Church of Scotland, was identical with the Church of 30 Scotland in Scotland, which is an Established or State Church, and that the Church here only got a share of the Fund because she was really the Church of Scotland in Canada. Now, it is well known and the evidence shews that the Church of Scotland has its bounds in Scotland. The Church here was an independent voluntary association from the outset. It was formed at a convention of ministers and commissioners as appears from the minutes of its Synod, being filed as Respondents' Exhibit 3i^, page 3 and pp. 13 and 14, at the suggestion of a dispatch, dated the 1st of August, 1830, from the Secretary of State for the Colonies, Sir George Murray to Sir John Colborne, 40 Lieutenant-Governor of Upper Canada. That dispatch suggested on the part of the Imperial Government the desirableness of the union of the whole of the Pres- byterian Clergy of the Province, with a view to facilitate the disbursements of the money derivable from the Clercv Reserves. This Church " The Presbyterii\n Church of Canada in connection with the Church of Scotland," was formed altogether independently of any authority over or of any knowledge by the Church of Scotland in Scotland." See deposition of Dr. Jenkins, p. 46, Respondents' Appendix, 1. 38. ^08 RECORD. In the Court of Qiicm's Bimh. No. G5. Rcf^oondcnt.s Cagp, tiled 21th Feb- ruiiry 1880. — continued Deposition of Profossor Mat'k('rra.«<, p. 8, Respoiuloiits' Appendix, 1. 10 to 28. Deposition of Rev. U. (/ampb-U, p. 1)2 oi' Uispondents' Appendix, 1. 21) to end, iind pnge 93, 1. 42, and pp. 1)4 and 95. Pn)tessor iMaekcrni.^, page 23 of Kespondonts' Ai)ptndix, 1. 20 to 30. The Clmrcli of IScotlanil itnelffnnn the heyiinnug rficof/nized tnin hithpendenre of the Canadian Vhurc//. as appears btj a Iciicr from i/.s Ctdouial Coi/inuifee in the minutes of 1844, p. 9, Roispondent'^' Exhibit 3,;^- whi rein it is stated that "The ('htn'ch of Scotland has never claimed any autbority nor exercised any control over yonr Synod; neither lias she ever pt)SS('s>ed or desired to possess the right of any such inti rferenee. Her efforts have l)een limited to the cultivation of lo brotherly ailection and the rendering of peciniiary aid to those who had many claims on her regard." See deposition of Prof. Maekiirras, Respomlents' Apjien- dix, p. 10, 1. 33. Deposition, Rev. R. Campbell, Respondents' Appendix, pp. 94, 95 and 96. In 1814 the Synod of the ('anadian (church passiid, without a dissenting voice, the following Act wh'trh wan made a fiindanieidal and esscntiid part of its constitution, and to which every niiyiistcr had to assent as did the Petitioner, the Aei'. li. Dohie. ''Whereas, this Synod lias always, from its first establishment, possessed a perfectly free and supreme jurisdiction over all the congregiitions and ministers 20 in connection therewith; and although the independence and freedom of this Synod, in regard to all things spiritual, cannot be called in question, but has been repeatedly, and in most explicit terms aflirmed, not only by itself, but by the General Assembl}' of the Church (jt Scotland, yet, as in present circumstances it is expedient that this independence be asserted and declared by a special Act: •' It is hereby declared, That this Synod has always claimed and possessed, does now possess and ought always, in all time coming, to have and exercise a perfectly free, full, final, supreme and unc(mtrolled power of jurisdiction, discipline and government, in regani to all matters, ecch'siastical and spiritual, over all the ministers, elders, church members and congregations under its care, without the 30 right of review, appeal, comi)laint or reference, by or to any other court or courts what>^()ever, in any form or under any pr'jtence ; and that in all cases that may come before it for judgment, the decisions and deliverances of this Synod shall be final. And the Sjnod further declares, that if any encroachment on this supreme power and authority shall be attempted or thieatened, by any person or persons, court or courts whatsoever, then the Synod, and each and every member thereof, shall to the utmost of their power, resist and oppose the same. And whereas the words in the designation of the Synod "in connection with the Church of Scotland," iiave been misunderstood or misrepresented by many per- sons, it is hereby declared, that the said words imply no right of jurisdiction or 40 control, in any form whatsoever, by the Church of Scotland over the Synod, but denote merely the connecticm of origin, identity of standards and ministerial and Church communion. And it is further enacted that this supreme and free juris- diition is a fundamental and essential part of the constitution of the Synod; and that this may be fully known to all those who may hereafter seek admission into our Church, it is enjoined that all Presbyteries shall preserve a copy of this Act, and cause it to be read over to, and assented by every minister and probationer to 28. 29 to 23 of ndenoe in the '' The ontrol 1 right tion of 10 many Ippen- 96. miting ! of its le A'ei'. issed a "listers 20 •f this 5 been by the :!8 it is lessed, cise a iplino ill tllG ut the 30 courts t may shall this ^on or mber And h the y per- ion or 40 d, but il and uris- ; and 1 into 5 Act, t loner 400 who may apply for ordination or induction into any pastoral charge." See Ro- spondt-nts' Exhibit 3,"^. j). 15; also deposition of Rev. R. Campbell, Respondents' Appendix, p. 95, I. 30 . Rev. Prof. Mackerras, p. 9, 1. 39 and p. 10. The Rev. R. Dobie, the Petitioner, assented to this declaration of indepen- dence. Evidence of Prof. Mackerras, p. 23, Res[)()ndents' Appendix, 1. 5 to 12. Respondents' Exhibit 3' fyled with admissions, being an extract from Minutes of Presbytery of Glengarry, proves this. Evidence of Rev. R. Campbell, Respondents' Ai)pendix, p. 97, 1. 10. 10 Latterly, pending union negotiations, the Church of Scotland continued to recognize the independi-nce of the Canadian Church, and declared that it claimed no title to review, although it ap[)roved of the basis of union. Evidence of Rev. Dr. Jenkins, p. 47, Respondents' Appendix, I. 15 to 40, and p. 48. " Q. You say that the attitude of the Church of Scotland has not changed since the said union ; will you mention your reasons for so .saying and give in- stances ? " A. My reasims for saying so are these : the Church of Scotland, as before the nnion, has continued to aid the Presliyterian Cluirch in Can.ada by donations 20 from her funds ; that she has received ministers of the Presl^yterian Church in Canada into her parishes and courts in Scotland on the sann; terms which were in force before the nnion. In r(;gard to donations, I instance Queen's College, which still receives an annual grant from the Ohurcli of Scotland. I also instance moneys contributed by the Church of Scotland to the French Evangelization Society of the Presbyterian Church in Canaila, and to the Home Mi.ssion of the Presbyterian Church in Canada. As to ministerial communion, I instance the case of the Rev. Wm. M. Black, a minister of the Presbyterian Church in Ciinada who took with him a Presbyterial certificate to Scotland, from the Presbytery of Montreal in connection with the Presl)yterian Church in Canada, which certifi- 30 cate was received by the Presbytery of Kirkcudbright, and on which certificate he was received into the Presl)ytery and inducted into the parish of Anwoth, having, before connecting himself with the Presbyterian Church in Canada, been ordained by a Presbytery of the Church of Scotland in Scotland. I instance the case of the Rev. Principal Snodgrass, D.l)., whose position in this country was similar to that of the Rev. Mr. Black, and who was received on his Presbyterial certificate from the Presbytery of Kingston by the Presbytery of Langholm, in Scotland, in the Synod of Dumfries, Scotland, and thereafter inducted as minister into the parish of Canonbie in said Presbytery. Q. Can 3'ou state what has been the attitude of the Church of Scotland, in 40 Scotland, towards the union of the Presbyterian bodies which is in question in this cause ? A. In eighteei» hnnilred and seventy-one I was appointed by the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland, a deputation to the General Asseml)ly of the Church of Scotland upon the following resolution passed on Wednesday, the fourteenth day of June, eighteen hundred and seventy -one, by the Synod, as appears at page 30 Synod minutes : " Whereas, "this Church has ever cherished and does still cherish devoted attachment to the RECORD. In the Court of Queen't Bench. No. G5. Respondents Case, filed 24th Feb- ruary 1880. — continued. RKCOHD. Ill the Court of Qiirni'n ihnch. No. OS. Respondents Cnse, filed 24th Feb- ruary IRHO. — conlinutd. Iril 410 " Churcli of Scotland ; and, wlioroas, it would at any tiini- bo proper to cotivoy by " d«>pntation to the Motber Cbi:ri;ii an oxprossion of our (ilia! all'i'ction and [)i()- '• roiiud L'stcein, but in tbc prospo(3t of a union of all tbo Prcsbytfrian Cburcbcs " tbrou^liout tbe l).)Uiini()n of Can ida, it in ospccjiilly ijccoming us to express our '• devoti((n and our ijesire for ber continue I syni|>atby, be it rt-solvfd ibat tbis "Synod appoint, and tbey do hereby ajjpoint, Jobn Cook, D.I)., Wni. Snoilgrass, " 1).D., .lobn .Jenkins, D.I)., and James (!n»il. Agent of tin! (Jhurcb, sneb de[)uta- " lion, witb instructions to a|)poar before the Veneratde tbe General Assembly ol " the Cbuicii ot Seotbuul at its next annuid meeting, to aasiu'e the Assembly of " tiie undiniinisheil attacbment of tbis Syno i to the I'arent Church, and to com- 1« ** municate to the Asseml)ly full information regarding tbe position of tbis Church, "and especially as to tbe reasons which weigh with this Synod in their attemi)t "to ndvanct? the interests of Presbyterianisni in tbis part o*' the Jlinpire by the " consolidation of the several brancdies of th' Presbyterian Cbiu'ch under tlie "jurisdiction of one General Ass<'mbly." This resolution was unanimously ado[)ted by tbe Synod. I ili 1 appear before tbe General Assenil)ly of the Church of Scotland at its meeting in May, eighteen hiuidred and seventy-two, and fur- nished the General Assemblv to the best of mv Jibllity with all the information that I possessed respecting negotiations for union in so far as they had proceeded. Whereupon, after kindly expressions from the moderator, the General Assembly 20 agreed to tbe following resolution : " That the (general Assend)ly desire to record " tbe high satisfaction witb whioh they have beard of tbe energy. Christian zeal, " and distinguished success witb wbieb their work as a Church is carried on by " tbe Synod of which Dr. Jenkins is the re[)rosentative, and in bidding them God- " speeil in the great work before them in a great country, daily advancing in " wealth and population, tliey fend assured that that woik will lie carried on by " God's bel[) for tbe future as it has been in the past, and that no union of tbe " several Presbyterian bodies in Canada will be agreed to without their being all " fully satisfied that tbe great object of extending the beneiits of religion will by " that union be even more vigorously and eft'ctively carried on than now." The 30 quotation goes on to say : "Tbe moderator then, at their retpuist, tendered the " thanks of the Asseml)ly to Dr. Jenkins for his aide eloquent, and most interest- " ing address." I now hold in my hands the Acts published by the General Assend)ly showing the said resolutions from which the said quotation is copied. Further, in eighteen hiuidred and sevejity-five a deputation from the Presby- terian Church of (janada in connection with the Church of Scotland appeared be- fore the General Assemi)ly in Edinburgh. Tbis deputation was also sent by the Svnod to Scotland, in view of the negotiations which were going forward in regard to union, and at that General Assendjly the following resolution was passed : "The General Assem!)ly W(dcome with sincere sentiments of esteem and 40 " regard tbe respected de|)uties from the Synod of Canada as brethren whose " sacrifices in promoting the religions interests of our countrymen in that Colony " have deserv<'d the gratitude of tbe Church both at home and abroad, while ''receiving with profound concern and regret the intimation that on the subject " of an incorporating union of Presbyterian Church's, threatened division in the " Canadian Synods is endangering the cordiality of co-operation which is so essen- " titd to the success of the work of the Church in all lands, the General Assembly 411 ey by I pro- irches s» our t this I grass, ,'[)Util- hly ot bly of ) com- 10 liurch. tuiiipt )y tlio «r tlie noiisly Iliiirch (1 fur- natioti ec'dod. oinl)ly 20 record n zeal, oil hy n God- ing in on by of the ing all ,viU by The 30 ad the tcrest- eneral opied. r(!8by - od be- )y the ird in tin was in and 40 whose yolony while iihject in the essen- jenibly 7n the Court of Queen'i Bench. No. m. "claim no title to reviev the proceedings which liavc issued in tliat result; but RECORD. " the General Assemljly, wliile continuing to recognize all old relations with the " brethren in Canada, are (juite prepared to declare after consideration of the " terms of the proposed union as laid before thfUi in their committee's report, as " they hereby do decl.ire, that there is nothing in the said terms of union to pre- " vent the Assembly from cortlidlli/ wiN/tiiKj God-speed In their fntare lubora for " the Lord to brethren who propose to accept the union on that basis, or fromco- p , " operating with them in any way that may be found possible in the new state (jngo^tilo^d *' oi things in promoting the religious intcrt'sts of Scottish l*resbyterians in the 24tli'Feb- 10 "Canadian Dominion." The last (piotation I have read is from the " Principal lu.iry 1880. Acts of the General Assembly of the Church of Scotland," which I now hold in — c<"'<»«"«'» myhaml. Then I was appointed in eighteen iiundred and seventy-six a delegate to the General Assembly of the Cluuih of Scotland from the Presbyterian Church in Canada, in connection with Dr. Grant, now Principal of Queen's College. This was a year after the union took olaee, and we were sent to the General Assembly to report upon the condition of matters in Canada in regard to the union. The following re.'^olution was passed by the General Assembly, — I read it from the printed Acts of the General Assembly, — eighteen hundred and seventy-six, of the Church of Scotland, which I now hold in my hand : 20 (Petitioner objects to proving the Acts and Proceedings of the General As- sembly of the (Jhurch of Scotland from a document purporting to be a printed copy thereof, the original not being produced. Objection reserved by the par- ties.) A. "The As.sembly have heard with much interest that the union of Pres- " byterians in the Dominion of Canada has at length taken place. The terms on " which this union has been effected, having been brought under the considera- " tion of the last General Assembly, and that Assembly having declared that " there is nothing in those terms to prevent the Assembly from wishing God- " speed in their future labors for the Lord to brethren who propo.se to accept union 30 " on that basiii, or from co-operating with them in any w ly that may be Ibund " possible in the new state of things, tlie General Assembly resolve to record, and " through the respected deputies from Canada to convey to the brethren in the " united Church of the Dominion, an expression of their earnest prayer that God " may bo pleased to hallow and bless the union, and to make it the means of pro- " moting peace as well as all the other interests of religion among the people. " The Assembly, at the same time, regret to learn that the threatened division " in the Canadian Synod, of which intimation was given in the report to the last " General Assembly, has, to some extent, become a reality. As to differing " views of duty in regard to accepting or rtyectiiig the union, this Assembly, like 40 " all former Assemblies, express no opinion ; but being persuaded tliat those " brethren who have declined to enter the united Churcli, not less than those " who have accepted the union, have acted under a strong sense of duty, the " Assembly assure them of their continued regard and desire for their prosperity " and usefuhiess. And, while the Assembly will not cease to pray and use such " means as may be within their power, and entreat their brethren in Canada to " unite in the same prayer and efforts, that all heats may be allayed and any re- " maiiiing division may be healed, they will cordially continue to co-operate in 412 RECORD. In the Court of Qu€vn'»\ lii'mh. No. 65. RuHcondoiils Cu8o, liled 2lth Feb- runry 1880. — coiithiuu/. " any possHilo way with liotli parties in promoting tlio roligiou.s intcrestn of their " colonial bri'thrcn. The (icmmmuI Asf. Tlien, from l)eing present, you have a [lerson il knowledge that the hiit resolution which you have just (pioted was pas,>ed by the General A.s.seinbly of the Church of Scotland ? A. I have a personal knowledge that that resolution was pa-sHcd. Q. Will you be kind enough to state if you know how far, or to what extent, if at all, the .saiil Church of Scotland, in Scotlan m said uuion, has the nttitiidc of the said Cluircli of Scotlainl, or of its General Assembly, change>i, anporalities Fund " in question, and acting through its Synod or highest spiritual, judicial and legislative court always controlled it. Here a short history of thf origin of the Fund will be in place, and the Res- -^ - ^ f > No. 65. JenU ., filed *• The Quebec Act (177 1) had guaranteed to the Roman Catholic clergy the 24th Feb- 10 right they possessed before the cession of this country to England, to demand and luary 1880. receive their customary dimes or tithes. The Protestant clerg}' saw in this guar- — <^"'*"'«'"^' antee a privilege accorded to the Roman Catholic Church which justified them in demanding a corresi)oiiding favor. In 1791, by the Statute 31 George III., cap. 31 (amending the Quebec Act), the Imperial Parliament, wishing to acknowledge this claim, made provision for the support of a Protestnnt clergy in the two Provin- ces of Upper and Lo\ver Canada, in sanctioning an appropriation by the Govern- ments of these two Provinces, of a reserve for this purpose of certain lands from the public dor., lin. Tlu-se lands thus approi)riated were styled Clergy Reserves. In 1827, by the Acts 7 and 8 Ge« i ge IV, the Imperial Parliament authorised the sale 20 of a part of these lands on condition that the proceeds were invested in the public funds and the revenues exclusively applied to the maintenance of a Protestant clergy. In 1840 the Statute 3 and 4 Victoria, ch. 78, sanctioned the sale of all these lands, under certain restrictions as to the quantity to be sold annually. In 1853, the Imperial Parliament authorised the Legislature of the United Province of Canada to legislate for the management of the Clergy Reserves, with this restric- tion, that the moneys theretofore given to the clergy of the Churches of England and Scotland, or to any other denomination of Christians, should not be withheld, reduced or in any manner affected by the legislation of the said Province during the lives of the persons having a right in the said annual grant (16 Vic.,ch. 21). 30 By virtue of the power conferred on it the Legislature of Canada enacted in 1854 (18 Victoria, ch. 2) that the proceetls of the lands constituting the "Clergy Reserves" situated in Upper Canada, and those in Lower Canada should form two separate and distinct funds, which should be styled, respectively " The Municipal Fund of Upper Canada," and the " Municipal Fund of Lower Canada," and that conformably to the Imperial Acts, these funds should be charged firstly, and in preference over any other charge, with the payment of the above men- tioned ainiual allowances (o the Protestant clergy, duri.^ the lives of the in- cumbents, who had this right at the time of the sanction of the statute 16 Vic. ch. 78, namely, the 9th May, 1853. To secure this payment, it was enacted that 4(t the capital required to guarantee these annual allowances should be invested in the public funds, and the surplus, if any, apportioned to the municipalities of the said two Provinces, according to [lopulation. The rig' ^ which the Imperial Pirliaujcnt desired to protect ami secure under the statute 16 Victoria, ch. 78, Vr^ere thus .[)re.«*crved, but the system thus organized made the State debtor for these annual a})propriatit)us, and the fund r'jpresenting the same, during tli'3 full t!_rm of the lives ol' the then incumbents. The third section of this law clearly int' ;atcs that this style of enactment adopted to satisfy the rule of the Imperial RECORD. In the Court of Queen's Bench. No. 65. Respondents Case, filed 24th Feb- ruary 1880. — continued. 410 Act was not what our Parliament preferred. Anxious to put aside allappearauce of union between Church and Statt', as it declared, ;ind to settle promptly and finally all reclamations th.it might exist against th.'se funds of the -'Clergy Reserves" the Legislature hy this 3 section iiuthorized tlie Executive to com- mute and extinguish the same, with the consent of the parties interested, by the immediate payment of the caj)ital (at the rate of i)er cent.) calculated on the jasis of the probable life of each incumbent. At the l)iginning of this legislation the clergy of the Church of Englaml had been alone benefitted and had raised the pretension of being solely entitled to the benefit of these reserved lands. But about the year 1820, the members of the Church of Scotland presented a claim, 10 as well for their clergy as for those of tin- other Protestiint denominations, for a share and interest iri these Reserves, proportion d to the nundjer of the members of eiich Church. This reclamation, for a long time contested and opposed, was finally admitted, and when the; statute of 1854, to which I am about to refer, was passed, the right of the ministers of the Presbyterian Church of Canada in con- nection with the Church of Scotland to the benefits of the statute had been for a long time acknowledged." The Governinent ab.solutel}' refused to conunute Avitli any itidividuals, but insisted upon commuting for the benefit of the Church, through commissioners ajjpointed by its Synod. Sec Ev. of Rev. R. (.'ampbell, Respondents' Appendix, 20 p. 101. The provisions of the law of 1854, relative to the connnutation of the an- nual allotments, paynble to each minister, appearing satisfactory, a meeting of Synod of said Church was convoked to decide on united action iri relation to this connnutation. The meeting was held in January, 1855, and the following reso- lution unanimously adopted: *' Resolved, Ist. That it is desirable that sueh commutatio]!. if upon fair and liberal terms, should be effected ; and that the Rev. Alexmder Mathieson, D.D., of Montreid, the Rev. John Cook, D.D., of Quebec, Hugh Allan, Esq , of Montreal, John Thompson, Esq., of Quebec, and the Hon. Thomas McKay, of Ottawa city, be the Synod's Commissioners, with 30 full power to give the formal sancticm of the Synod to such connnutation as they shall approve, the said (Commissioners being hereby instructed to use their best exertions to obtain as liberal terms as possible; the Rev. Dr. Cook to be con- vener; three to be a quorum; the decision of the majt)rity to be final, and their formal acts valid; but thnt such formal sanction shall not be given except in the cose of ministers who have also individually given them, the said Connnissioners, power and authority to act for them in the matter, to grant acquittance to the Goveinment for the claims to salary to which the fiiith of the Crown is pledged ; and to join all sums so obtained into one fund, which shall be held by them till the next meeting of Synod, by which ^ill further regulations shall be made; tin* 40 following, however, to be a fundamental principle which it shall not be competent for the Synod at 1013^ time to alter, unless with the ccmsent of the ministers grant- ing such power and authority; thiit the interest of the fund shall be devoted, in the first instance, to the paym<'nt of £112 10s. each, and that the next claim to be settled, if the fund shall admit, and as soon as it shall admit of it, to the £112 10s. be that of the ministers now on the Synod's roll, and who have been put on the Synod's roll since the 9th May, 1853, and also, that it shall be considered 417 10 a fiiniliiinontiil principle, that all persons who have a claim to .such benefits, shall be ministers of the Presbyterian Church of Canada in connection with the Church of Scotland, and that they shall cease to have any claim on, or be entitled to any share of, said eomniutation I'und, whenever they shall cease to be; ministers of the saiil Church. 2nd. That so soon as said comnuitation shall have been decided upon and agreed to by the said Commissioners, the Rev. John Cook, D.D., of Quebec, shall be fully empowered and authorized and this Synod hereby delegate to the said Eev. John Cook full power and authority to endorse and assent to the several powers of attorney from the individual parties on behalf of the said Synod 10 and in their name, and as their act and deed, as evidencing th<'ir assent thereto. 3rd. That all mniisters be and they are hereby enjoined and entreated (as to a measure by which, under Piovidence, not only their own present interests will be secured, but a permanent endowment for the maintenance and extension of religious ordinances in the Church), to grant such authority in the fullest manner, thankful to Almighty (!od that a way so easy lies open to them for conferring so important a l)enelit upon the Church. 4th. That the aforesaid Coiiunissioners be a committee to take the necessary steps to get an act of incorporation for the miiiiiigemenl of the general fund so to be obtained; th(! aforesaid Commissioners to constitute the said corporation till the next meeting of Synod, when four more 20 members shall he added by the Synod." Agreeably to this resolution all the ministers of the said Church gave full power to the Commissioners, named for this puriK)se by the Synod, to arrange with the Government, and to unite all the sums thus realized in a common fund, according to the terms of the said resolution. The connnutation oi" the several individual reclamations produced a sum total of £127,448 5s. Od., which the Government handed to the Commissioners named by the Synod. In 1858 these Connnissioners, acting according to the instructions contained in the aibre-mentioned resolution (§4) demanded and obtained from the Parliament of united Canada an Act creating a special corporation for the adminis- tration and the possessiot- of this fund of £127,448 5s. Od,, and of all other sums 30 by which it might thereafter be increased. This corporation I'eceived the name of " The Board lor the Management of the Temporalities Fund of the Presby- terian Church of Canada in connection with the (/hurch of Scotland," and is one of the Respondents in this case. (22 \'ictoria, chap. GO.) It is declared by this statute that this corporation is created "for the management and holding of cer- tain funds of the Presbyterian Church of Canada in connection with the Church of Scotland, now held in trust by certain Commissioners hereinafter named, on behalf ol" the said Church and for the benefit thereof;" but in the first section it is enacted that "such holding is subject always to the special condition that the annual interest and revenues of the said moneys and fund now in their hands 40 shall be and remain charged and subject as well as regards the character as the extent and duration thereol' to the several annual cliiiriies in favor of the several ministers and parti< s severally entitled tliereto, of the several amounts and re- spective characters and durations as the same were constiiuded and declared at the formation of the said funds and the joining of the same into one fund ". . . . The second section of this statute then provides for the mode of election and replacing of meml)ers of this Board created a corporation as afore- said. According to the dis])Ohi.tions i)f this section, the Bys s^iall be cum- RECORD. In the Court of Queen's Bench, No. 65. RespoD dents Case, filed 24th Feb- ruary 1880. — continued. 418 RECORD. In the Court of Bench. No. 65. Respondents Case, tiled 24th Feb- ruary 1880. — continued. posed of twelve nu'Uibeis, five being ministers luitl seven laymen; four of members in order of seniority, viz., two ministers and two laymen retiring e.'\ch year on the third day of the annnal assembly of Synod of said Church, and being replaced b}' two ministers and two laymen elected by said Synod. In cat-e of death, resignation, or absence from the Province, or withdrawal from communion in said Church, the vacancies shall be filled by the other mem- bers of the Board, subject to ratification of the i'.ppointments thus made by the Synod at its next ensuing meeting, so thnt, as stated in the second .section, " this Bonrd shall always consist of twelve members, five of whom shall be ministers and se\en laymen, and all being ministers or members in full com- 10 munion in said Church." It will thus be seen from the foregoing that the Fund belonged to the Cinirch which acting by its Synod hiis always controlled and managed it. That the Board. Respondents, was a mere creation of the Church, and that the Synod obtained its incorporation to manage the fund. In addition to the statement of the learned judge, as to the origin of the fund, where he states that a share was claimed by the Church, not only for itself, but for other Protestant denominations, the evidence shows that this was only reasonable and in accordance with the opinion of the Judges of England, given to Lord John Russell in 1840 as follows : — '" We are of opinion that the words 20 '*' Protestant clergy ' in 31 George III,ch;ip. .31, are large enough to include and " do include othei' clergy out of the Church of England and Protestant bishops, " priests and deacons that have received episcopal ordination. When your Lord- " ships ask if any other clergy are included, what other clergy ? we answer that " the Church of Scotland is one instance of such other Protestant clergy. And " further in answering your Lordships if we specified no other clergy than tlie " clergy of the Church of Scotland, we did not intend thereby that the clergy of " no other Church than the Church of Scotland may not be included under such " term ' Protestant clergv.' " See evidence of Rev. R. Campbell, p. 91 Respondentia' Appendix, 1. 14. This 30 opinion is to be found in the library of the Pjirliament House at Quebec, see Ap- pendix 35 to Proceedings and Journals of 1856. It was also acted upon, and other Protestant bodies, including the Wesleyan Methodists got a share, see evid- ence of Rev. R. Campbell, p. 92 Respondents' Appendix, 1. 10-20. It might be well here to explain the nature of the Synod and its relation to the Church. See evidence of Rev. Dr. Jenkins, p. 45 of Respondents' Appendix, 1. 30. " The Synod is the supreme court of the Church. Its powers are two-fold, first, judicial; secn^nd, legislative. Asa judicial court, it is a court of final appeal in all cases of discipline tried in the lower courts and appealed from them. Legis- 40 latively, its jurisdiction is two-fold, first, it has a spiritual jurisdiction bearing upon the control of all religious matters; second, it has al in iOgis- laring hear- nod," It mein- " the 40 In the Court of Qtifien'i Bench, No. 65. -continued. voice of the Church." See evidence of Prof. Maciierras, p. 21, Respondents' Ap- RECORD. pendix, 1. 22. Respondents here especially urge that the Synod was not merely an ecclesias- tical court hut controlled prosier fi/ and temporal matters. See evidence of Prof. Mackerrus, Res[)ondents' Appendix, p. 20, 1. 42, and p. 21 to 1. 24. It controlled the Widow.s' and Orphans' Fund as well as this Tem- poralities Fund, and congregations desiring to sell their property had to ask per- p ^''' ^P' niisHiori from the Synod, ami it passed a model deed for holding the property of Cagg gjed congregations. See in same sense, evidence of Rev. R. Campbell, p. 102, 1. 8 and 24th Feb- 10 1. 30 ; p. 103, 1. 20 and 1. 40. ruary 1880. The proposition naturally flowing from this is, that if the Church as a ChuHih, acting through its lawful representatives in Synod assembled, agreed to unite with the three other bodies of Christians, it did not thereby forfeit its title to its property, including the " Temporalities Fund," but took the same with it into the union, and that altogether independently of any Act of Par- liament. The fact of the union cannot be denied. The original articles of the union were produced in court and proved. It was the " Presb3'terian Church of Canada in connection with the Church of Scotland " which united vdth the others to form the " Presbyterian Church in 20 Canada." It was the Church as a Church which united, and not merely a few individuals, as the Petitioner falsely puts in his petition. He attempts to make out that the Rev. Dr. Cook and several others seceded from their Church and formed the " Presbyterian Church in Canada," and that he, the Rev. Mr. Dobie, remained true to his Church. The very reverse is the fjict. Upon the 14th of June, 1875, the Synod re- solved, see page 35 of the miiuites of eighteen hundred and seventy-five, Peti- tioner's Exhibit " BBB," as follows: "The Synod resolves, and hereby does *• record its resolution, to repair, on the adjournment of the court to-morrow, to " the Victoria Hall, commonly knowu as the Victoria Skating Rink, the appointed 30 " place of meeting, for the purpose of consummating the union with the aforesaid " Churches and of forming one General Assemldy to be designated and known as '• the General Assembly of the Presbyti'rian Church in Canada; and does at the " same time declare that the United Church shall be considered identical with " the Presbyterian Church of Canada in connection with the Church of Scotland, " and shall possess the same authority, rights, privileges, and benefits to which " the Church is now entitled, except such as have been reserved by Acts of Par- " liament. And further, with the view of ratifying the act of union the Synod " does empower its moderator to sign in its name the preamble, the basis of union, " and also the resolutions adopted in connection therewith." 40 As the moderator did thus sign the preamble and basis of uiuon, and also the resolutions, this shows that the union was the act of the Church, and that the *' Presbyterian Church in Canada" is, according to this resolution, identical with the "Presbyterian Church of Canada in connection with the Church of Scotland." Upon the next day, the 15th of June, 1875, the Synod met at its usual place of meeting, in St. Paul's Church, Montreal, to ■ irry out the foregoing resolution, and did legally adjourn to the Victoria Hall to consummate the union. Only eight ministers, including the Rev. R. Dobie and the Rev. J. S. Mullan remained behind. |..'! RECORD. In the C trtof Qaei n s Batch. No. 65. Respondents Case, filed 24th Feb- ruary 1880. — continued. 120 The Synod Imviiig tdjoiirned to the Victoria Ilall, ri-sumed their 8o.-*.sion, iind contiiiiied to tninsaot business there as the same Synod for about an hour before the artieles of union were signed by its moderator, and the union consum- . mated. Notwithstanding this, the Rev. R. Dobie and six other minister.s remaining behind in St. Paul'.s Cliurcli, assumed to call themselves the Synod, and pretended to consider the Synod which they had acknowledged to be legally constituted nnd wliich was actually then sitting in session in Victoria Ilall, as seceders from them. There coidd not be two Synods existing at the same time; therefore in attempting to set up a S^'nod of their own, these seven dissenters from the vote 10 on union seceded from their Synod nnd Church. The pretence that the seven dissenters, out of 117 ministers who were then upon the Synod's roll, continued the Synod and Church, is ct)ntrary to all reiison. The Rev. J. S. MuUan, who at first was one of the dissentients, and remained behind with them, upon seeing the reilurilo pondents Cnoe. filed LMfli Keb- ruiiry 1880. — continucil. 422 2n(l. That the Board, Respondents, he restrained from acting, upon the ground that they luive ln-en illegally elected. It follows that it' the above Act he deelanMl constitiitionid, this concliisi(m cannot he granted. JJcside.s. he lias no right or interest to raisi' this. As he lo.st all his rights by his secession, he can only elaiin the rights which the Act gives him. If ho destroys the Act, Im at the .same time destroys his case. 3rd. That the Fund he declareii to he a fund hehl in trust for the hi'nefitof the Piesli\terian (jliurch of Canada in couneetioti with the Church of Scotland, and for the l)eneiit of tho.sf who Joice not ceased to he memlievH thereof, i.e. for the henolit of the Hev. iMr. Dobie and his six IVieiids. 10 This is a very insidiu)us conclusion, and would reach far beyond the issues and the parties to this cause if granted. It simply means that the Petitioner wishes the Court to deprive llG ministers, who are not didVndants, of their rights — to condemn them unheard. Such a pro[)osition is contrary to the rules of pleading and to justice. Here, also, the Petitioner is arrogating the light of praying for his friends, whom he shews no authority to represent. In the body of his petition he only sets lip his own per.sonal qualities and claims and grievances, bnt he is generous and wide-spreading and philanthropic in his conclusion. 4th. That the Rev. Drs. (A)ok, Muir and Bell be declared not to be entitled 20 to receive any portion of the Fund, and to have ceased to be members of the Presbyterian Church ol' Canada in connection with the Church of Scotland. So far as Dr. Cook is concerned, who is one of the Respondents and who has been heard, the Respondents submit that this conclusion should not be granted, for all the foregoing reasons. So far as Dis. Muir and Bell are concerned, it ought not to be granted for the same reasons, and because they have not been maile parties to the cause and have not had an opportunity of being heard. No Court will take awiiy a person's rights without giving him a hearing. 5th. That the Rev. John Fairlie. Rev. W. iMorrison, Rev. C. A. Tanner, be 30 declared not entitled to receive any sum wliatevt>r, and the Respondents ordered not to pay to them or to Drs. Cook, Muii', Bell, or to any o//ier' person whomso- ever, any sum of money whatever out of the capital or the revenues. The answer to the i)revious conclusion apjilies here. None of these gentle- men named iiave been made parties to the suit, or have been heard. The Court cannot take away their rights. Then in the prayer that the Respondents he ordered not to pay " to any other person whomsoever any sum of money whatever," a great deal more than would at first sight ai)pear is included. At the time of the union there were 117 ministers on the roll as proved by 40 Professor Mackerras, p. 18, 1. 17. This conclusion then means that the whole of these with the exception of the Rev. M. Dcjbie, .and p(Mlia[)s his six faithful Ibllowers are to be deprived of their rights, and all this without a hearing. liefore closing this factum, the Respoiiilents desire to remark that the Peti- tioner takes no conclusions to attack or set aside the Ontario Act. 38 Vic, c. 75, under which the Boai d are acting, and by which he is bound, or to set aside the 423 10 he 30 ived Union Act of Qiiobcc, 38 Vic, c. G2, both of which ontain provisions similar in those containeil in the Act 38 Vic, c 04, which the Petitioner attacks and asks to have declared unconstitutional. To sum u|) the argument, the Rert|>oudeuts submit th(> following'propositions of fact which cannot l)e successfully assailed, nnd of law which they respectfully submit are well founded. 1. That the Act impugned 38 Vic, c 64, of Quebec, is legal and constitu- tional. 2. That the " Clergy Reserves" were set apart for the support of a " Pro- 10 testant Clergy." 3. That " The Presbyterian Church of Canada in connecticm with the Church of Scotland," claimed a share for herself and other Protestant bodies, because their Clergy were a Protestant Clergy. That the Wesleyan Methodist and other Protestant bodies r>hio got a share. 4. That the Government would not commute with individual ministers. 5. That the claims of the ministers were converted into a life interest, which was to revert at their death to the general fund which belonged to the Chunih and Synod. 0. That the Church and Synod was the owner of the fund, got the Board 20 of Management incorporated, always controlled the fund, and even changed the principles upon which it was distributed, without objection by the Petitioner, thus showing that it had power over the fund. 7. That the Synod had power over property as well as over matters spiritual. 8. That the Church was a voluntary as.'jociation and independent in its origin, the Synod being formed on the suggestion of Sir George Murray, S'-cretary of State for the Colonies, in 1830. D. That after its formation the Church of Scotland acting through its Co- loninl Committee in 1844, declared that it had no jurisdiction or control over the 30 Church in Canada. 10. That in 1844 the Synod of the " Presbyterian Church of Canada in connection with the Chureh of Scotland," pissed an act declaring that the Synod was free and uncontrolled, and defining the words '• in connection with the Church of Scotland" to signify only identity of origin and standards and minis- terial and Church communion. 11. That the Church and its members were bound by a majority acting by a vote in Synod. 12. That the union was the act of the Church which, while changing its name, retained its identity tuid property, rights and privileges. 40 13. That the Petitioner in refusing to abide by the voice and act of his Church, seceded and lost his claim upon the Fund. 14. That the Church having done a lawful act in forming the union, re- quired no Act of the Legislature to authorize or h-galize the union or to allow it to retain its propeity, but the Acts were obtained simply to amend the former Act and to regulate the administration and disposition of the Fund under the new circumstances, as well as to enable the Board to conciliate and deal generously with the Petitiitner and the lew others who had not adhered to their Church, RECORD. In the Court of Queen't Bench. No. 65. Respondents Oase, filed 24th Feb- ruary 1880. — continued. V !l RECORD. Jn the Court of Queen's Bench. No. 65. Respondents Case, tiled 24th Feb- ruary 1880. — continued. 424 thereby losing tlieir cliiim ; all this in the hope thiit they would sec their way to tall into the ranks of the nnitcd church. 15. That the basis of luiion contnined no changf in doctrine and standards, and was approved of by th»« Church of Scotland, to which the Rev. R. Dobie profes.'ies so much attachment. IG. That the four uniting Churcbes were Presl)yterian bodies, identical in creeds and standards, and only joined for the better promotion of thfir common objects. John L. Morris, Attorney for Respondents. Montreal, 19th January, 1880. 1(1 AUTHORITIES CITED BY RESPONDENTS: Ist. As to Constitutionality of the Acts, Cowan v. Wrijiht, 23 Grant's Chancery Reports, p. (JIG. 2nd. As to voluntary charaeter of the Church, and that tlio minority are bound by the majority who retain their property and identity, even though tiiey unite and chanj^e their name. Doe Methodist Episcopal Trustees v. Brass, U. C. Reports, Old Series, Vol. G, page 437. Long V. Bishop of Cape Town; 1 Moore, Priv. Co., N. S. 4G1. Bishop of Natal v. Gli'dstonc ; Law Rep., 3 Equity Cases, p. 35. Murray v. Burgess; 4 Moore, P. C, N. S. 261. Forbes & Eden ; 1 Law Reports, Scotch Appeals. 20 i-jj... Respondents' Appendix. Deposition of James S. Mullan, witness for Respondents. (Already printed.) See page 237. Deposition of John Hugh Mackerras, produced by Respondents. (Already printed.) See page 242. Deposition of Rev. John Jenkins, produced by Respondents. (Already printed) See page 277. Deposition of Rev. Robert Campbell, produced by Respondents. (Already printed.) See page 804. Deposition of Rev. Gavin Lang, produced by Respondents. (Already 30 printed.) See page 339. Admission of the Parties. (Already printed.) See page 154. (Endorsed.) Respondents' Factum— Filed 24th February, 1880. (Paraphed) L. W. M. 425 ly to urds, >obie 1,1 in iinun Document X. ts. 10 p. (;i6. ajority 20 nted.) ready [ready Iready lrea(iy 30 L Tran8ciii)t of the Procfedings luul nnd KritrieH made in the Register of the Court of Queen's Bench (Appeal Side). 3Uth December 1871). Messrs, MacmiiHter, Hall & GreenMhields, of counsel for the said Appellant, file a praecipe for writ of ;ippeal, and writ issued. 19th January 188U. The Appellant files an authentic copy of said writ of appeal, with return of service and deposit thereof. 10 22nd January 1880. The writ of appeal is returned with siihedulos annexed thereto. Messrs. Macmaster, Hall & Greenshields appear for the Appellant. 27th January 1880. J. L. Morris, Esquire, appears for the Respondents. The Respondents file demand of reasons of appeal. IGth February 1880. Answers to the rmsons of appeal are filed on behalf of said Respondents, ex- cepting Rev. Gavin Lang and Sir Hugh Allan. 24th February 1880. 20 Tile Respondents file their printed case. 3rd March 1880. Reasons of appeal are filed on belmlf of said Appellant. 6th March 1880. Mr. Justice Cross files a declaration, as follows : I, the undersigned, one of the Justices of the Court of Queen's Bench, do hereby declare that I am disqualified to sit in this cause, having been consulted by one of the parties. Montreal, Gth March 1880. A. Cross, J. Q. B. 30 8th March 1880. The Respondents inscribe the case on the roll for hearing on the merits ex- parte. The Respondents file a notice of inscription of the cause for hearing on the merits ex-parte. 10th March 1880. There is filed a petition on behalf of Respondents for the adoption of the necessary sti^ps lor the appointment of a Judge ad hoc to replace Mr. Justice Cross, also an order conformable thereto, signed by the Honorable Sir A. A. Dorion, Chief Justice. RECORD. In the Court of Quetn't Bench. No. 66. Prooe«diDgB in the Court of Quoon's Bench, from 30th Deo. 1879 to 11th Nov. 1880. %. v^^^^> ^^- nO. 0^\^ iMAGE EVALUATION TEST TARGET (MT-3) A :/. t/j 1.0 i I.I 1.25 [fi^ IIIIIM S "^ IIIIIM i '- IIIIIM III 1.8 U ill 1.6 o p^ ^/y 7 c;^^ > ^> ^^. A.^ y ^^ iV «• ^\:'^^ #:v^ fp ^'/<^ '^^ ^ r ^.i?< % s"^ 426 RECORD. In the Court of Queen's ieneh. No. 66. Proceeding's in the Court of Queen's Bench, from 30th Dec. 1879 to 11th Nov. 1880. — continued. lltli March 1880. Present : ' ' The Honorable Sir Antoine Aimb DoufON, Knight, Chief Justice. " " Mr. Justice Monk. " " Mr. Justice Ramsay. '' " Mr. Justice Tessier. It is considered that this cause shouM have ^^reoedence over other causes as to hearing, and it is fixed for Monday the fifteenth instant. 12th March 1880. There was received, this day from the Chief Justice of the Superior Court a 10 letter which is here trans^cribed as follows, to wit : L. W. Marciiand, Esq., Quebec, ilth March 1880. Clerk of Appeals. Sir, — I have to acknowledge the receipt of your letter dated the tenth in- stant, notifying me that one of the Judges of the Superior Court for Lower Ciinada is required to sit and act in the cause pending in the Court of Queen's Bench (Apptal Side) wherein the Revd. Robert Dobie is Appellant and the " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland " Respondents, in lieu and stead of the Honorable Judge A. Cross, who is incompetent to sit in the 20 said cause, and having communicated with the Judges of the said Superior Court, it has been ari'anged that the Honorable Judge McCord • ill sit and act at the hearing of the cause above mtntioucd. I have the honor to be. Sir, Your obedient Servant, (Signed) W. E. Meredith, C J S c 15th March 1880 Present : The Honorable Sir Antoine Aime Dorion, Knight, Chief Justice. 30 " " Mr. Justice Monk. '* " Mr. Justice Ramsay. " " Mr. Justice Tessier. The hearing on the merits is postponed until Wednesday, the seventeenth instant. 16th March 1880. The Appellant files his printed jase. 17th March 1880. Present: The Honorable Sir Antoine Aime Dorion, Knight, Chief Justice. 40 " " Mr. Justice Monk. " " Mr. Justice Ramsay. " " Mr. Justice Tessier. " *' Mr, Justice McCord, ad hoc. The parties having been heard by their counsel respectively on the merits. Curia advisare vult. 427 30 40 The Honoiabl it (( « « It (( 19th June 1880. Present : Sir Antoine Aime Dorion, Knight, Chief Justice. Mr. Justice Monk. Mr. Justice Ramsay. Mr. Justice Tessier. Mr. Justice MgCord, ad hoc. Tlie Court of our Lady the Queen, now here, having heard the Appellunt and Respondents by their counsel respectively, ex.imined as well the record and 10 pro^^eedings had in the Court below, as the reasons of appeal tiled by the Appel- lant and the answers thereto, and mature deliberation on the whole being hsid ; Considering that there is no error in the judgment appealed from, to wit, the judgment rendered by the Superior Court fc ' Lower Canada, sitting at Mont- real, in the district of Montreal, on the twenty-ninth day of December, one thousand eight hundred and seventy-nine, doth affirm the same with costs to the Respondents against the Appellant. The Honorable Ju.stice Ramsay and Tessier dissenting. And on motion of Johti L. Morris, Esquire, Attorney for Respondents, the Court doth grant him distraction of costs. In the Court of Queen's Pench. No. 68a. Judgment of the Court of Queen's Bench, rendereil 19th June 1880. 20 The Appellant seeing the judgment herein rendered this nineteenth day of June, instant, moves for leave to appeal from said judgment to Her Majesty in her Privy Council, upon entering security within the lawful delay. It is ordered that the Respondents do show cause to the contrary on Tues- day, the twenty-second day of June, instant, and that a rule do issue accordingly, returnable on that day. 22nd June 1880. Present : The Honorable Sir Antoine Aime Dorion, Knight, Chief Justice. " " Mr. Justice Monk. 30 « " Mr. Justice Ramsay. The Appelhuit returns the rule issued on the nineteenth instant, and the same is continued over to next term. 11th September 1880. Present : The Honorable Sir Antoine Aime Dorion, Knight, Chief Justice. " " Mr. Justice Monk. " " Mr. Justice Ramsay. The parties iile a conseiit in writing that the motion and rule for leave to appciil to Her Majesty's Pi ivy Council, may be heard before the said Court com- 40 posed of the Honorable the Chief Ju.stice, and the Honorable Justices Ramsay, Monk and Cross, and adjudicated upon by the Court so constituted. And the parties having been heard by counsel on said Appellant's motion for leave to appeal. Curia advisare vidt. No. 663. Proceedisjjs on motioiii for leave to appeal to Her Majesty in Her Privy Coupoil, 428 f RECORD. In the Court of Queen's Bench. No. 6fc'c. Order of Court graut- ing leave to appeal to HorMnjesty in Her Privy Council. No. 66d. Proceedings in execution of bail bond. 17th September 1880. Present : The Honorable Sir Antoine Aimk Doriox, Knight, Cbief Justice. Mr. Justice Monk. Mr. Justice Ramsay. Mr. Justice Cross. Tbe Court having hcani tho parties by their counsel respectively on Appel- lant's motion for leave to appeal to Iler Mnjpsty in Her Privy Council, and maturely deliberated : dotii declare absolute tbe rule issued in this cause on said motion, and the said Appellant is bereby allowed to appeal to Her Majesty in 10 Her Privy C\)un(:il, iVom tbe judgtnent rendered in this Court on the nineteenth day of June lust, on his giving within six weeks the security required by law ; liiK. in default of such security being given witbin said delay, it is ordered that the record be forthwitb remitted to tbe Court below without any further order. 30th September 1880. Present in Chambers : The Honorable Mr. Justice Ramsay. Pursuant to notice given, the Reverend Robert Dobie offers as security of his appeal to Her Majesty in Her Privy Council, Joseph Hickson, Grand Trunk General Manager, and James S. Hunter, Notary, both of the City of Montreal, 20 w bo having justified their solvency, the said Joseph Hickson upon real estate, do execute their bail-bond, which is taken, acknowledged and fyled. No. 67. Bail Bend, filed 30th Sept. 1880. Bail Bond. Canada, ) In the Court of Queen's Bench. Province of Quebec. ^ Appeal Side. No. 144. In a certain cause between The Reverend Robi-rt Dobie, of Milton, in the County of Halton and Province of Ontario, Minister, (Peti- tioner in the Court below), . - - - - and "Board for the Management of the Temporalities Fund of the Presbyterian Church of (Canada in connection with the Church of Scotland," a liody politic and cor- porate, duly incorporatrd iind having an office and prin- cipal place of business in the City of Montreal, and the Reverend Daniel M. Gordon, Bachelor of Divinity, Minister of St. Andrew's Chnich of Ottawa, Province of Ontario, Reverend John Cook, Doctor of Divinity, Minister of St. Andrew's Church, Quebec, Province ' of Quebec, Reverend John Jenkins, Doctor of Di- vinity, Minister of St. Paul's Cburcb of Montreal, Appellant. 30 40 429 Province ol' Quebec, Reverend Gavin Lang, Minister of St. Andrew's Church of Montreal, Province of Quebec, Sir Hugh Allan of Ravenscraig, Montreal, 10 Province of Quebec, John. L. Morris, Esquire, Ad- vocate of Montreal, Province of Quebec, Robert Den- nistoun. Esquire, County Judge of Peterborough, Province of Ontario, and Williiini Walker, Esquire, Merch:\nt of Quebec, Province of Quebec, The Rever- end John n. Miickerrns of Kingston, in the Province of Ontario, William Darling, Esquire, and Alexander Mitchell, both Merchants of the City of Montreal aforesaid (Respondents in the Court below) - RECORD. In the Court of Queen's Bench. No. 67, Bail Fond, filed jOtb Sept. 1880. — continued. Respondents. Be it Remembered that on the thirtieth day of September, in the year of our Lord one thousand eight hundred and eighty, at the said city of Montreal, before me, tlie Honorable Thomas Kennedy Ramsay, iDiie of the Justices of the Court of Queen's Bench for Lower Canada, came and appeared James S. Hunter, notary, ami Joseph Hickson, Grand Trunk general manager, both of the city and district of Montreal, who declare themselves jointly and severally bound and liable unto and in favor of Board for the Management of the Temjx)ralitie8 Fund 20 of the Presbyterian Church of Canada in connection with the Church of Scotland, the Reverend Daniel M. Gordon, Reverend John Cook, Reverend John Jenkins, Reverend Gavin Lang, Sir Hugh Allan, John L. Morris, Robert Dennistoun, William Walker, the Rev. John H. Mackerras, William Darling and Alexander Mitihell, theii- heirs, assigns and representatives, in the sum of two thousand dollars, current money of Canada, for costs to be made and levied of the several goods and chattels, lands and tenements of them, the said James S. Hunter and Joseph Hickson, to the use of the said Board for the Management of the Tempo- ralities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland, the Reverend Daniel M. Gordon, Reverend John Cook, Reverend 30 John Jenkins, Reverend Gavin Lang, Sir Hugh Allan, John L. Morris, Robert Dennistouii, William Walker, the Rev. John H. Mackerras, William Darling and Alexander Mitchell, their heir.s, assigns and representatives, atid more specially to be made and levied of the following property behmging t( the said Joseph Hick.son, to wit, a lot of land bearing the number one thousand and twenty-two (No. 1022) on the olficual cadaster plan of the parish of Montreal. Whereas judgment was rendennl in the said cause in the said Court of Queen's Bench on the nineteenth day of June, oiie thousand eight hundred and eighty, on the appeal instituted in thi.s cause, and whereas the said The Reverend Robert Dobie has obtained have to appeal therefnmi to Her Majesty in Her 40 Privy Council ; Now tile condition is such that if the said The Reverend Robert Dobie do prosecute ellectii.ally the .suid ap[)eal to Her Majesty, and pay unt-othe said Board for the Management of the TenqxnalitieH Fund of the Presbyterian Church of Canada in connection witli the Cliuich of Scotland, the Reverend Daniel M. Gordon, Reverend John Cook, Reverend John Jenkins, Reverend Gavin Lang, Sir Hugh Alhni, John L. Morris. Robert Dennistoun, William Walker, the 430 RECORD. Reverend John H. Mackerras, Williaiu Darling and Alexander Mitchell, such costs and damages as may be awarded unto them by Her Majesty in the event of the said jiMJginont of the said Court of Queen'n Bench being confirmed, then the present obligation shall be null and void, otherwise the same to be and remain iu full force and value. And the said James S. Hunter and Joseph Hickaon have signed. J. HiCKSON. J. S. Hunter. In the Court of Queen'* Bench. No. 87. Bail Bond, filed 30th Sept. 1880. — continued Taken and acknowledged before me at the City of Montreal the day and year first above written, the said parties having first duly justified their solvency. 10 T. K. Ramsay, J. Q. B. The paid Joseph Hickson being duly sworn, doth depose and say that^he is the lawful owner and proprietor of the real estate above described, and that the same is worth the sura of two thousand dollars currency, over and above all charges and hypothecs, and he hath signed. J. HiCKSON. Sworn before me at Montreal this thirtieth day of September, fme thousand eight hundred and eighty. , T. K. Ramsay, J. Q. B. Ihe said James S. Hunter being duly sworn doth depose and say that he is 20 worth the sum of two thousand dollars currency over and above what world pay his just and lawful debts and he hath signed. ,,.,.,, . ., . , J. S. Hunter. Sworn before me at Montreal, this thirtieth day of September, one thousand eight hundred and eighty. T. K. Ramsay, J.Q. B. (Endorsed.) Bail Bond— Filed 30th September 1880. (Paraphed) L. W. M. 30 iJ . " -.M/,Y/ ,n vt 431 30 Canada, Province of Quebec, District of Montreal. Document XIII. Court of Queen's Bench, Appeal Side. Jurisdiction of Her Majesty's Privy Council. The Reverend Robert Dobie, - - Petitioner and Appellant. and "The Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada in connection with the Church of Scotland, et ah, RECORD. In the Court of Queen'i Bench. No. 68. Notice of dii.y fixed to prepare Record, filed 8th Nov. 1880. 10 the Church of Scotland, e< aZ., .... Respondents. To John L. Morris, Attorney for said Respondents. Sir, — Take notice thiit on Monday' the eighth day of November instant, at the hour often of the clock in the forenoon, the said Appellant will apply to bin Honor the Chief Justice or to any one of the Honorable Justices of the Court of Queen's Bench for Lower Canada (Appeal Side) sitting in chambers in the Court House in the City of Montreal, to fix and determine what shall constitute the Record and Transcript in appeal from the said Court of Queen's Bench to Her Majesty's Privy Council, and to regulate and provide what Exhibits, Documents or matters shall be excluded therefrom. 20 (1) Beaiuse the said record in the said case contains several copies of the same documents : (2.) Because the said record contains formal documents not necessary to be set out in the transcript for appeal. (3.) Because the said record contains several books fyled as exhibits, the contents of which it would be exceedingly expensive to set out at length, but extracts of which relied upon by either party c;ui be conveniently agreed upon and determined. (4.) Becuise to print the entire record, exhibits, and documents connected with the case would not only cause very considerable and unnecessary expense, 30 but would involve the printing of several volumes and books, by far the greater portion of which are irrelevant to the issues. (5.) Because many of the books and documents forming part of the said record may be excluded from the said record without any injustice to the pre- tensions of either party, and without in any way infringing uix>n the issues to be presented for adjudicivtion to Her Majesty's Judicial Committee. Montreal 0th November 1880. D. Macmaster, Attorney for Appellant. (Endorsed.) 40 Notice of day fixed to prepare Record. — Fyled 8th Nov. 1880. , (Paraphed) L. W. M. U 432 RECORD. In the Court of Quem't .Bench. No. 68a. Notice to fix oi»r.e for appeal, filed 11th Nov. 1880. Annexed to the foregoing petition is the Ibllovving dociunont: — Canada, Province oi' Quebec, District of Montreal. Document XIIIa. ■ In the Court of Queen's Bench. Appeal Side. Jurisdiction of the Privy Council. Revd. Robert Dobie, vs •' Board for the Managem<^nt of the Temjioralities Fund of the Presbyterian Church of (Canada in con- nection with the Church of Scothmd," et al - Appellant. Respondents. 10 The parties consent that the followinj^ books, papers and documents may be omitted from the tran8crii)t record for appeal to Her Maji'sty's Privy Couucil with the exce{)tion of .such parts thereof as may be indicated and subject to the agree- ment and consent herein contained. The whole of Exhibit containing " Acts and Proceedings of Synod of Presby- teririn Church of Canada in coMiiection with the Cliurch of Scotland, 8th June 1875, with the exception of pages thirty-four, thirty-Hve and thirty -six com- mencing with the words : " Arrangements lor consummation of Union," and ending with the WH)rds : "John Macdonald," and with the exception of the i)age 20 referred to by witnesses as page A in s!iid Exhibit between pages forty and forty- one thereof, commencing with the words: " At .VIontreal," and ending with the words: "Church in Canada." The whole of Resi)ondents' Exhibit S'' being copy of Quebec Gnzette of date 19th June 1875, except that portion on p. 1246 commencing with the words: "Notice is hereby," anil ending with the words: "denomination of Chris " and that part of page 1247 ending with the figures " 3248." All the books filed by either party as exhii)its, may be omitted from the printed transcript rea)rd, with however this express understanding — that all said tooks exci'pt Respondents' Exhibit o'^ which contains the same Minutes, Acts and 30 Proceedings of the Synod as are contained in the first volume of Appellant's Ex- hil)it " BBB," from 1831 to 1854, shall be sent with the transcript to be pre- pared and forwarded to Her Majesty's Privy Council, and that all books so filed and forwarded shall avail for the purposes of this appeal in the same manner and to the sume extent as if the same were printed at length and incorporated in the regular printed case. All Bailiffs returns may be omitted. Depositions may be inserted as they 433 are printed in the present appeal facta without headings and endings, or jurats save those in facta. ' Montreal, 11th November 1880. D. M^cmaster, Attorney fur Appellants. John L. Morris, Attorney for Respondents, excepting Sir Hugh Allan and Rev. Gavin Lang. D. E. Bowie, Attt)rney for Respondents ^^ Sir Hugh Allan and the Revd. Gavin Lang. The foregoing consent and agreement arrived at between the parties sub- mitted to and approved by me. Montreal, 11th November 1880. A. A. Dorion C. J. Q. B. (Endorsed.) Notice to fix the case for appeal to Privy Council by consent.— Filed 11th November 1880. (Paraphed.) L. W. M. RECORD. In the Court of Queen'g Bench. No. 68a. Notice to fix 0U80 for appeal, filed nth Nov. 1880. — continued. Document XIV. 20 Canad:i, ) Province of Quebec, \ No. 144. The Reverend Robert Dobie, In the Court of Queen's Bench, (Appeal Side). and Appellant. " Board for the Management of the Temporalities Fund of the Presbyterian Church of Canjtda in connection with the Church of Scotland " el al. - - - Respondents. List of Documents and Papers to be inserted in the Transcript. Tran.script. 30 No. 1. Petition and Ordoi for Injunction and Writ of Iniunction, No. 69, List of Documents and Papers to be in- serted in the Transcript, filed 11th Nov. 1880. 40 3. 4. 5. 6. 8. 9. 10. 13. 14. Petitioner's Exhibit No. 1. 2. ... « 8. 4. A[)pearance for Respondents. Respondent, Sir II. Allan. , ;. Respondent. Rev. Gavin Lang. Petition and AffidavilH by Kes|)ond('nts that Petitioner be ordered to inerease hi,s Security to the amount of $159,700.00. Answer to Petition and Atlidavit. RECORD. No. In the Court of Queen's Bench, No. 69. List of Documents and Papers to be in- serted in the TriiMscript, 'died 11th Nov. 1880. — continued. 15. 1(3. 17. 18. 19. 19a. 20. 21. 22. 23. 24. 26. 26. 27. 28. 29. 30. ai. 82. 33. 34, 35. 36. 37. 38. 41. 50. 52. 53. 54. 55. 56. 58. 59. 434 Consent of Petitioner to Ro-invcstin-nt, &c. Affiilavit ol" Jiuucs Cioii. ♦• Alex. McGihbon. " Rev. Gavin Lang. Notice to Kespundoiits that additional Ht'Ciirity will be given. Notice that Security I'or co.sts will be given. Notice that 8ecin-ity for cost.s has been given. Notice that additional Security has been put in by Petitioner. Petition of ReKpomlent.s that order for Writ of Injiniction &c., be dis- solved or .suspended, and affidavits annexed. 10 The Acts and Proceedings of the Synod of the Presbyterian Church of Canada in connection with the Chnrch of Scotland. Session XLix. Bemn. at Montreal, 8th June 1875. Kingston; Printed by William Bailie. 1875. — Extract — From " Arrangements for Consunnnation of Union" inclusively page 34 to "By-Law of Tempondities Board" exclusively page 36. — Extract — From "At Montreal" inclusively page — to "Canada" inclusively. Answer.^ to Petition to quash Injunction. 20 Affidavit of Douglas Bryinner. Rev. Robert Dobie. Robert Burnet. Revds T. McPherson and J. Davidson. Rev. Gavin Lang. Sir Hugh Allan. Mr. Justice Miller. Rev. Robert Campbell. James Croil. Rev. John Jenkins. 80 Exception to 3 Affidavits filed by Respondents. Demand of plea of Respondents, except Rev. G. Lang and Sir Hugh Allan. Declaration of Rev, Gavin Lang. " Sir Hugh Allan. Petitioner's List of Exhibits. Exhibit MN. (Protest). Petition for deposit. Exception to Judgment. Answers to Pleas. 40 Respondents' answer to Petitioner's answer to Respondents' plea. Deposition of Rev. Gavin Lang for Petitioner. Admissions of Parties. Respondents' Exhibit 31 « " 32] — Extract — From " Notice is hereby given" inclusively to " 3248" inclusively. « « (( u u « dis- ch of JCLIX. Uiiun page ■ely. 10 20 1U GO. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72i 73. 74. 75. 77. u « 435 Deposition of Rev. John McDonald, for Petitiont r. D. Brjniner for Petitioner. Rev. Gavin Lnng. Sir Hugh Allan. " James Croil. " J. S. Mullan, for Respondents. " Hugh Mackerras. " Rev. John Jenkins. " Rev. Robert Campfoll. Rev. G. Lang. Petitioner's List of Exhibits. Exhibit X. « Zl. Z2. Z3. Z5. « « (( « 20 RECORD. In the Court of Queen'$ Bench. No. 69. List of DoounientB and Papors to be in- serted in the Transcript, filed nth Nov. 1880. — aontiniied. 30 Hugh 80 Besides Documents which ordinarily form part of the Transcript, viz: Writ of Appeal. Reasons of Appeal. Answers to Reasons of Appeal. Appellant's Case, Respondents' Case. Bail Bond. Proceedings entered in the Register. Montreal, 11th November, 1880. D. Macmaster, Attorney for Appellant. J. L. Morris, Attorney for Respondents pleading. .. - - (Endorsed.) List of Documents and Papers to be inserted in the Transcript.— Filed 11th Nov. 1880. , " . (Faraphr.r, L. W. M. 40 El. vely. 436 .:fF " RECORD In tht Court of Quefn'i Bench. No. 70. List of Exhibits (Books) sent to the Rof^istrar of Hor Miijes- ty's Privy Council, according to order. Document XV. Canada, } Province of Quebec. ^ No. 144. The Reverond Robert Dobie, - Court of Queen's Bench, Apponl Side. and Appellant. "The Board for the Management of the Teniporalitit'H Fund of the I'resbyteriiui Chuich of Canada in ooiniectioii with the ChurcJ! of Si'otiand, e< «/., .... Respondents. List of Exuihits (Bookw) .sent to the Registrar of Iler Majesty's Privy 10 Council, according to oi'der given by the llonoraljle Sir Antoine Airne Doriou, Chief Justice of the Court of Queen's Bencii, on the ilth November, ibSO. Exhibit. The Acts and Proceedings of the Synod of the Presbyterian Church of Canada in connection with the Cliurch of Scotland — Session XLIX — Begun at Montreal, 8th June, 1875. Kingston, Printed by Wiliam Bailie, 1875. Schedule No. 30. PLvhibit BBB. Filed 21st March, 1879. Minutes, Church of Scotland in Canada, 1831-54. l^^f* (This volume of the Acts and Proceedings l)eing the same as the one tiled as Respondents' Exhibit 3,'5, this latter Wiis not transmitted to the 20 Registrar of Her Majesty's Privy Council pursuant to order.) Schedule No. 31). Exhibit BBB. Filed 2lst March, 1879. Miiuites, Church of Scotland in Canada, 1855-69. Schedule No. 39. Exhibit BBB. Filed 21&t March, 1879. Minutes, Church of Scotland in Canada, 1870-75. Schedule No. 40. Exhibit LL. Filed 21st March, 1879. Digest of the Minutes of the Synod of the l*resbyteriiin Church of Canada, with ■\ Historical Introduction, and an Appendix of Forms and Proceedure. ,, . , ;, By the Rev. Alex. F. Kemp, St. Gabritd Street Church, Montreal. " Lot all things be done decently and in order." — 1 Cor. xiv., &c. Montreal, 30 ;.■ Print In the Court of Queen's Bench. Province of Quebec. \ Appeal Side. I, Louis F. W. Marchiind, Clevk of Appeals of Her Majesty's Court of Queen's Bench for Lower Canada, do hereby certify that the four hundred and tliirty-five foregoir - Affidavit of Rev. Gavin l^ang, filed 15tli February 1879 - Notice to Respondents that additional Security will be given, filed 28th February 1879 .' . . Notice that Security for costs will be given, filed 28th February 1879 Notice that Security for costs has been given, tiled 28th February 1879 Notice that additional Security has been put in by Petitioner, filed 28th February 1879 - - Petition of Respondents that order for Writ of Injunction &c. be dis- solved or suspended, filed 3rd March 1879 - - - . Affidavit of the Rev. John Hugh Maekerras, Affidavit of Rev. James S. 31ullan, Affidavit of the Rev. John Cook, D.D., Affidavit of the Rev. John Jenkins, D.I)., Affidavit of the Rev. Robert Campbell, Answer to Petition to (juasli Injunction, filed 14th March 1879 - Affidavit of Douglas Brymner, filed 14th March 1879 Affidavit of the Rev. Robert Dobie, filed 14th Marcli 1879 Affidavit of the Rev. Robert Burnet, filed 14th March 1879 Omitted. Omitted. Omitted. Omitted. Omitted. Omitted. Omitted. Paoi. 2 16 3& 10 41 42 43 45 45 46 46 48 50 52 53 54 55 56 56 57 58 59 60 60 61 65 71 73 75 79 83 89 98 108 20 30 40 50 441 IG 39 10 41 10 20 20 30 :to 40 40 50 No. 27 28 29 30 31 32 33 34 35 3(; 37 38 3!) 50 40 41 •12 43 14 45 4(i 47 48 4!» 50 51 Affidavit of the llcv. Tlionias Mucphcrson and the Rev. John Davidson filed 14th March 1879 Affidavit of tlie Rev. Gaviu Lan^^ filed 14th Mareh 1879 - Affidavit of Sir Hu-h Alhin, filed 14th March 1879 - - . . Affidavit of Mr. Justice Thomas Miller, filed 14th Mareh 1879 - Affidavit of the Rev. Robert Campbell, filed 2.Sth Marcli 1879 - Affidavit of James Oroil, filed 28th March 1879 - - . . Affidavit of the Rev. John Jenkins, D.IV, filed 4tli April 1879 - Exception to three Affidavits filed by Respondents, filed 5th April 1879 Demand of Plea of Rcvpoudents except the Rev. Gavin Lan-' and Sir Hugh Allan ° Plea, filed 11th March 1S79 ! ] Declaration of tlie Hev. Gavin Lan-, fih^l SUi Mareh 1S79 Declaration of Sir lln-h .Vlhui, filiMJ Sth .March 1,S7!( Petitioner's List of Kxliihits, -.-..... Three Vohinies eonij. rising the .Minutes from LS.'il to 1875 of the Synod of the Preshyti'rian (Jhurch of Canada in connection with the Chureh of Scotland, ( Piliiiniicr's K.xhibit HHii filed 21st March 1H79J {linnlcs) -...'. BfefirThe first of ;lu.se 3 volume.s--i8;5l-54— is al.-o Re.si.ondents' Kxhibit 3,:'. ' Digest of the Synod .Minutes of the I'resbyterian Church of Canadi!. (Petitioner's Exhibit LL, filed 21st March 1879) - No. 5597. 15th June 1875. Protect -at the recpiest of Jo.'^^eph lliek- .son, vl III., against The Moderator of the Presbyterian Chureh of Canada in connection with the Chureh of Scotland. (Peti- tioner's Exhibit MN., filed 21.st March, 1879) Iviulls and Failures of the laa; Presbyterian Uniim in (Vanad.i. By Dougl.i.s Hrymner { /Im,/,-). (i'ctitioii.'r'^ KxhilMt {' {'. lildj 21s( .Mareji IST'.ti Acts ;iDd Prr)ceediiigs nf the First Gem-ral Assembly of the Presby- i>{' Scotland, root lining aiiMounecnieul of the ap|)ointnient of Petitioner as a minister. ( i'etitioncr's Exhibit RR, tiled 21st March 1879) (Boo/c) Historical and Statistical Report, published by order of tlie said Synod of tlic Presbyterian Church of Canada in connection with the Church of Scotland, (Petitioner's Exhibit FF, filed 21st March 1879) (^Jioo/c) Cyclopa)dia of Religious Denominations containing authentic accounts of the different Creeds and Systems prev;tiling throughout the World. Written by members of the respective Bodies. (Book) (Petitioner's Exhibit DD, filed 21st March 1879). - Notice of fixing a day for Petitioner to adduce his evidence Order of Judge appointing day for Petitioner's Enquete, filed 2nd Juno 1879 - - - . . . . . . Inscription u|ion the AWc d'Enquctr, filed 29th Nov, 1879 Petition for Deposit and Notice thereof, filed 9(h June 1879 Continuation of Enquete - - Omitted, Omitted by consent, Omitted by consent Omiitcil by consent. Oinittcil ! ' by ronseni. Omitted by consent. Omitted by consent. Omitted by consent. Omitted. Omitted. Omitted. Omitted. Pa(ib. 109 112 117 118 120 125 127 128 128 134 135 130 137 RECORD. In the Court of Qucvu'e Bench, No. 73. Index of Papers com- posing the Record in this cause. — continued. 138 fWBiam 442 RECORD. In the Court of Queen's Btiich. No. 73. Index of Papers com- posing tlio Record in this cause. — continued. No 52 53 54 55 5G 57 58 59 60 CI 62 63 64 65 66 67 68 69 70 71 72 72i 73 74 75 76 Respondents' Exception to Judgment rendered this day by the Honor- able Mr. Justice Jett(5 on Petition, filed 14th Juno 1879 - Answer to Pleas, filed 18th June 1879 Respondents' Answer to Petitioner's Answt-r to Respondents' Pica, filed 12th April 1879 Deposition of tiie Rev. Gavin I^ang, produced by Petitioner, filed 25th June 1879 ■-.... Admisions of Parties, filed 27th June 1879 - . . . . Respondents' Lists of Exhibits, filed with Admissions, 27th June 1879 Copy of Extracts from the Records of tlic Presbytery of Glengarry, dated at Martintown, June 8th 1878. (lle.^pondents' Exhibit No. 31, filed with Admissions 27th June 1879) Copy of Quebec Official Gazette, dated and published at Quebec, 19th June 1875— Extract— (Respondents' Exliibit No. 3^, filed with admissions) filed 27th June 1879 - . . . . . Deposition of the Rev. John McDonald, produced by Petitioner, filed June 28tli 1879 Notice to Petitioner to proceed with his evidence, filed 30th June 1879 reposition of Doughis Bryniner, produced by Petitioner, tiled 2nd July 1879 Deposition of the Rev. Gavin Lang, produced by Petitioner, filed July 2, 1879 Deposition of Sir Hugh Allan, produced by Petitioner, filed July 2, 1879 - Deposition of James Croil, produced by Petitioner, tiled July 2, 1879 - Deposition of James S. 3Iullan, witness for Respondents, filed 2ud July 1879 Deposition of Rev. John Hugh Mackerras, produced by Respondents, filed July 7, 1879 Deposition of Rev. John Jenkins, D.D., produced by Respondents, filed July 9, 1879 Deposition of Rev. Robert Campbell, produced by Respondents, filed July 15, 1879 Deposition of Rev. Givin Lang, produced by Respondents, filed July 15, 1879 Petitioner's List of Exhibits, filed 1st August 1879 - Styles and Procedure in the Church Courts of Scotland. (Petitioner's Exhibit PP, filed 17th July 1879) {Book) . . . . Blank form of Cheque, used by the Temporalities Board of the Presbyterian Church of Canada in connection with the Church of Scotland. (Petitioner's Exhibit X, filed 1st August 1879) Acts and Proceedings of the Synod of the Prcsbyteri:in Church of Canada in connection with the Church of Scotland, on and since June 15, 1875. (Petitioner's Exhibit Zl, filed 1st August 1879) - - . Letter to the Rev. Gavin Lang, from the Rev. R. H. Muir, on behalf of the Colonial Committee of the Church of Scotland recogniz- ing the Presbyterian Church of Canada in connection with the Church of Scotland. (Petitioner's Exhibit Z2, filed July 2, 1879.) Letter from Rev. G. W. Sprott to Rev. GaVin Lang. (Patitioncr's Ex- hibit Z3, filed July 2, 1879.) - - - The Confession of Faith and Larger and Shorter Catechisms, contain- ing also the form of I'resbyterial Church Government. {Bouk) (Petitioner's Exhibit Z4, filed July 2, 1879.) Omitted. Omitted. Omitted by consent. Pagb. 139 140 145 147 154 370 371 10 20 167 168 169 184 225 227 229 237 242 30 277 304 339 345 40 347 347 50 Omitted by consent.! 443 10 20 No. 77 78 10 79 III. IV. V. VI. VII. 20 VIII. IX. X. XI. XII. XIII. XltlA. XIV. 30 XV. Extrnct.s from the Acts and Proceedings of the General As.sombly of Church of Scotland. (Petitioner's Exhibit Z5, filed 1st Aug- ust 1879.) - - Pastoral Charge of the Rev. Dr. Jenkin.s, Mod.:rator of the Synod of the Prcsbyt<;riari Church of Canada in connection With the Church of Scotland in 1869 — in which, at piige 5 — he stylos the Presbyterian Church of Canada ;■ connection with the Church of Scotli nd, as The " Church of Scotland," Ist August 1879. {Book) (Petitioner's 4;hib.. ZG, 'iltd at Enqugte, July 11, 1879.) - - - Inscription for merits - . Appearance for Appell"nts Appearance for Resj-onuents Demand of Ri'asons of Appeal Reasons of Appeal Answers to Reasons of Appeal --.....- Appellants' Case Respondents' Case Transcript ........... Inscription Notice of Inscription Bail-Bond Notice of day fixed to prepare Record filed 8th Nov. 1880 - Notice to fix case for Appeal, filed List of Documents ana Papers to bo inserted in the Transcript, filed nth Nov. 1880 List of Exhibits (Books) sent to the Registrar of llcr Majesty's Privy Council, according to order Certificates Omitted by consent, Omitted. Omitted. Omitted. Omitted. Omitted. Omitted. Paob. 371 RECORD. In the Court of Queen's Bench, No. 73. Index of Papers .'om- posing the Record in this cause. — continued. 375 376 377 399 425 428 431 432 433 436 438-9 40 50 444 m^ IIECOIID. Ill the Court of Queen's Bench, No. 74. Judges' Reasons. JUDGES' REASONS. Sir A. A. Dorinn. Kiii^lil, L'liirr Justice, CiiniiJii, ) Court of Queen's Bonch, Province of Quebec. \ The Reverend Robert Debit, Appeal Side. and Appellant. "The Board for the Management of tiie Temporalities Fund of the Prewb> tcrian Church of Canada in connection with the ('hurch of Scotland," cl kL, • Respondents Juilgnient rendered at Montreal, tlu- nineteenth day of June, one thousand eight hundred and eighty. 10 I*i'e«i'ut : T -i Honorable Sir Am'(jim:; Almk DoiaoN, Knight, Chief Justice. " " Mr. Justice Moxic. " " Mr. Justice Ramsav. " " Mr. Justice Ti:ssii:u. " " Mr. Justice McCouu, ad hoc. Opinion of Sir Antoini': Aimi': Dohion, Knight, Chief Justice. This is an extremely important case, in which the Ap[)ellant by means of a writ of iujuiu'tidu, contests tho right of the Ixespondcuts to the mauagtMUcnt of a large auioMut of property. It iu\'ol\e-i one of the mtjst intricate i[uestious arising .in out of tiie distribution under " The British North America Act of 18G7 " (coni- uionly called the ('Miifedeiation Ael) of lie' legisliitive powins atlrilaited to the Dominion I'iirJianii'nl and to iIk' liieal or pro\inei;il legislatures i'espreti\cly. Tht' I'acts which ha\c gixcii rise \n ilie contestation have been so clearly expliiined by my learned brother on my right (Mr. .lustice Ramsay) that it is unnecessary for me to refer to them. The (piestion submitted to the court is as to whether the Legislature of the Province of Quebec had the power to amend, as regards that Province, an Act passed l)y the Parliament of the late province of Canada, that is, of the then United Piovinces of Upi)er and Lower Canada entitled '' An Act to incorporate 30 " the Board of Managementof the Temporalities Fund of the Presbyterian (jhurch " of Canada in connection with the Church of Scotland." It is a ipiestion of law to be determined by the provisions of the British North America Act of 1807. Tho purpose of the amended Act, as its title indicates, was to incorporate a religious body for the management of the temporalities of their (Jhurch, and that of the amending Acts H8 Vict., ch. 02 and 04, is to sanction the union efl'ectcd by the body so incorporated with three other religious bodies, to authorize them to merge into one common fund the [)ro[)erty which belonged to them respectively at the time of their unicju or which they may hereafter ac(iuire, luid to manage it in furtherance of the object of their institution. 40 445 lU la the Court of Quecii'g Bench. No. 74. icasoDS. It is contended on behalf of the AppeUant that the original Act of incor- KE('011D. poratiun having been passed by the Parliament of the late Province of Canada, now constituting the Provinces of Ontario and Quebec, and itis provisions extend- ing to the two provinces, thisorigitnd Act is beyond thecoutrol of the legislatures of these provinces acting separately and can only be amended or repealed by the action of the Parliament of Canada. By section 92 of the British North Americn Act of 1867, the legislative powers conf red exclusively upon the Local Legislatures are defined, and among '[{^'^^ those powers are to be found at sub-section eleven (11), "The incorporation of — 10 " companies with Provincial objects;" at sub-section thirteen (13), '* Property ^ir A. A. "and civil rights in the Province ; " and at sub-section sixteen (16), " Generally H'^'i","' "ail ntalters of a merely local or private nature in the Province." (i|,i^f ' An Act incorporating a religious body for the purpose of ac(iuiriug property Justice, and of managing it, for the support of their ministers rnd of educiting young men — continued. for the ministry, is undoubtedly an Act conferring a civil right, by giving to the body so ihcorporated a civil .>le sectional teeling and controverpy, and which it was thought necebsary, on a»;count uf their general inip()rlaiic<',,lo Hubuiit to the control of the Dominion Parliament, 'the incorporation of a religious society is not included in this Kub-Hection, and thert-forc.' not comprised in its exceptional disposition. If this exception cjucerning railwaj^s, canals, telegraphs and other similar works had not been made, they would have fiUen under the general rule, and aill such , ] "". J^* works miide in each Province would have been a Provincial work, subject to p^'asons Provincial legislation and contiol. To show more clearly that the Imperial — 10 Parliameiit intended to place the legisLition on tliese works and undertakings on Sir A. A. a diflerent footing thnn other purely local subjects of legislation, this very sub- B'"'","' section ten (10) also excluiles from Provincial legislati. 30 only right is to demand and obtain payment. He does not ask this nor does he say that it is refused him. 1 need only say in conclusion that my opinion reduces itfe;lf to this, that although the Board is not at present legally constituted the Appellant has no in- terest or right to obtain the injunction he asks for. Thos. McCord, ad hoc. J. S. C. RECOlll). In the Court of Queen's Bench, No. 74. Judges' KeaHons. Mr. JuHtioo McCord. — continued. 452 RECORD. In the Covrt of Queen's Bench. No. 74. Judges' Reasons. Mr. Justice Ramsay. (dissenting) Opinion of Mr. Justice Ramsay — (Dissenting). The whole point of this cape has been most ably put by the learneat difficulty, and the decisions are »iot, as yet. sufficiently numerous to enable the Courts to derive from them any well settkd general principles as a guide. It is, thereftre, with some hesitation that I approa<'h the consideration of these intricate questions, to 10 some of which it is impossible to give a totally satisfactory answer. The double enumeration by which it was intended to obviate all doubt as to which Legisla- lature was to possess exclusively this or that power causes embarrassment, and even the use of the word "exclusively" has complicated the difficulty and given rise to interpretations of very various merit. The questions presented in this case appear to me to be more difficult of .-iolution than any that have as yet come before us, as they involve the consideration of a direct conflict between sections 91 and 92 of the B. N. A. Act. Briefly stated, the facts are tliese : Prior to 1875, there existed a religious body, known as the Presbyterian Church of Canada in connection "'''.h the Church 20 of Scotland. It did not owe its existence to any charter or statute, but it grew out of the settlement in this country of Presbyterians in connnunion with the Church of Scotland. But if no siutute defined precisely the limits, rights and privileges of this body, numerous statutos acknowledged its existence, and the right of its clergy to share in the lands known as the " Clergy Reserves," was admitted. When, by process of legislation, the share of the clergy of the Church of Scotland in Canada became fixed, an Act of the Legislature of United Canada was obtiiined (22 Vic, cap. 66) to make provision for the management and hold- ing of certain funds of the Presbyterian Cliurch in connection with the Church of Scotland, " now held in trust by certain commi.us limitations to the right to legislate ixs to property tlian these. Again, we have had two deci- sions limiting the sub-section in question. In the case of Evans v. Iludon, and Browne, T.S., Mr. Justice Rainville held that a local Act was unconstitutional which authorized the seizure by process of law of the salaries of federal officers, RECORD. In the Court of Queen's Bench. No. 74. Judges' Reasons. Mr. Justice Ramsay, (dissenting) — continued. 456 IIECOIID. In the Court of Queen's Bench, No. 74. Judges' Reasons. Mr, Justice Ramsay, (dissenting) — continund. -.1—- U'..- :. 22 L. C. J„ p. 268 ; and the Court of Appeal in Outtirio, in tlie case of Leprohon & The Corporation of Ottawa, 2 Tuppor, p. 522, held, reversing the judgment of the Queen's Bench, 40 U. C. R. 478, that under the B. N. A. Act, I8G7, a Pro- vincial Legislature hiis no power to impose a tax upon the official income of an officer of the Dominion Government, or to conft-r such a power on the municipali- ties. These decisions can only be sustained on the ground that property in the sub-section in question does not include such property and civil rights as are nece.'isary to the existence of a Dominion object, to copy the phraseology of the B. N. A. Act. It may, perhaps, be said that sec. 91, s. s. 8, B. N. A. Act, specially gives to the Federal Parliament the power of fixing the salaries; but this does lo not seem to me to affi.>ct the rpiestion. After the salary has been fixed and is p ^sc'ssed by the individual, it becomes property in the province. We are, there- fore, obliged to sustain the judgment on some other general principle which limits the effect of s. s. 13, see. 92 B. N. A. Act. On the other hand we have a decision of Vice-Chancellor Blake, in the case of Cowan & Wright, 23 Grant, Ch. Rep., p. 616, upholding the constitutionality of the Ontario Act (38 Vic. cap. 75) except in so far as it attempted to de;il witii property in the Province of Quebec. This is, of course, a decision of the prejise point before us, and therefore it becomes important to examine the grounds upon which it was rendered. It appears to me that it is undeniable tliat the local 20 Legislature, acting within the scope of its powers, has a right to legislate as abso- lute as the Dominion Parliament legislating within the scope of its powers. In- deed, this doctrine as to the respective powers of the Dominion and Local Legisla- tures seems to me to be almost the only one on whi<'h there has been entire un- animity of opinion. But when from this it is sought to glide to the conclusion that the words of section 92 are alone to be considered as defining the exclusive rights of the Local Legi.'^latures, I think we arrive at a doctrine opposed to posi- tive law, and to the authority not only of the Courts, but to the authority of practice. There is a sort of floating notion that by the conjoint action of difTerent 30 Legislatures, the incapacity of a Local Legislature to puss an Act may be in some sort extended. Section 15 of the 38 Vic, cap. 62 (Quebec), seems to have been added under the influence of such an idea. By it the Dominion and Local Legis- latures are permitted to recognize and approve. I cannot understand anything more clear than this, that the Local Legishitures, by corresponding legislation can- not in any degree enlarge the scope of their powers. V/hen the question is be- tween the authority of Parliament and that ol' a Local Legislature, the forbearing to legislate in a particular direction by Parliament may leave the field of local li'gislation more unlimited. This is the only bearing I can conceive the case of the Union St. Jacques & Belisle,* can have on this case. What the Privy Council 40 held in that case was that a special Act for the relief of a corporate body did not fall within the meaning of " Bankruptcy and Insolvency " (B. N. A. Act, sect. 91, s. s. 21) and this more particularly as there was no Dominion Act with which it interfered. It is, therefore, dead against the pretension of Respondents in this case, for the legislation olyectcd to upsets a Dominion Act, that is to say, * 20 L. C.J. 29; UP, C. 31. 457 10 if corporations vvliich havo not alone provincistl objects (provincial axicordiiig to the meaning of the B. N. A. Act, i. e, relating to one Province under the Act) created before Confederation, are under Dominion Laws. On this point there has never been a donbt. For instance, the Acts of iiicor[)oration of the G. T. Rail- way, an old Province of Canada incorporation, have been amended by Dominiou Acts, never by local ones. Another authority in 8n{)port of the constitutionality of the Ontario Act has been mentioned by Mr. Todd in his very valuable volume on " Parliamentary Government in the British Colonies," (p. 355). This is, of course, an authority 10 not to be d(.'spised, and if it had been given free from all bias by political con- siderations I should have considered it a very valuable t)pinion. But, without meaning to imply any sort of critiiism as to the exercise of the discretion of the Federal Government in the disallowance of bills, I may say that we all know that the Federal Government is most unwilling to interfere in a too trenc. U manner with local legislation, and where there is room for doubt as to the limits of the powers exercised, and where great popular interests are involved, they readily leave the question to the decision of tlie Courts, The report referred to by Mr. Todd, therefore, amounts to little more than this, that where part of an Act is evidently ultra vires and the rest not evidently so, the Federal Govern- 20 ment will not interfere and disallow the bill. I have already said that the terms of section 92 of the B. N. A. Act do not alone decide as to the limit of the local legislative power. Those who drew the B. N. A. Act saw that, in spite of all precautions, it would be impossible so to define the exclusive powers as to avoid clashing. It was therefore enacted at the end of section 91, as a rule of interpretation, that " any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in tiie enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." This appears to me to be decisive in the present wise, and I feel myself com- 30 pelled to come to the conclusion that an Act which disposes of the property of a corporation created by a Federal law is unconstitutional. There is another way of considering the matter, which appears to me to bring forward this view still more clearly. If the Presbyterian body all over Canada wanted an Act of incorporation to enable them to manage their property, no local legislation would sufhce. This brings me to still another consideration. The Ontario Act and the 62 cap. 38 Vic. (Quebec) are Acts of incorporation to all intents and purposes. It is true they do not, in so many words, declare certain persons to be a body corporate, but each gives to a certain organization OAjrporate powers; each creates a fictitious person able to receive and hold by git't and 40 devise. It will scarcely be pretended that these two Acts have created but one body corporate. They have evidently created two corporations, each of which deals with Presbyterians all over Canada. Now, let us apply the rule of ultra vires laid down in the minute of Council mentioned by Mr. ToJd. It was there said the Act of Ontario was ultra vires in so far as it dealt with property in the Province of Quebec. Is it not by parity of reasoning also ultra vires in so far as it deals with civil rights outside the Province ? If so, then cap. 02 is equally RECORD. Ill the Court of Queen's Bench, No. 74. Judges' llcasons. Mr. Justice lluiiisiiy. (dissentinjj) — contintial. 458 RECORD. In the Court n/ Queen' g . Bench. No. 74. Judges' RcasoQS. Mr. Justico Ramsay, (dissenting) —continued. void 8o far. And whut ik the result ? The Ontario Act not having been disal- lowed, exists so far as it can be applied within the local juris^diction — that is, it has incorporated the Presbyterians in Ontario, under the name of " The Presby- terian Church in Canada." The Quebec statute has incorporated the Presbyterians of Quebec under the name of " The Presbyterian Church in Canada," "or any other name the said church may iidopt," and it is in favour of this unnamed Cor- poration, and not in favour of the Ontario body, it has conliscuted the property of "The Presbyterian Church of Canmla in connection with the Church of Scotland." This mode of executive morselling would have the effect of producing a result which no Legislature contemplated. If a donor directs that £b npiece be given 10 to ten jjcrsons, it may logically be assumed that to give £1 apiece to each is partly to fulfil his directions ; but to give the whole fifty pounds to one of the ten persons, is to contravene his directions. Therefore, to let a law stand which is partly tdfra vires and piirtly constitutional, may be the most perfect mode of de- feating the legislative will. I therefore say that a law which is ultra vires in part may thereby be ultra vires in whole, and so it .should be construed, at all events when it appears that the object of the Act is not attained by a partial exe- cution. Take for instance an act of incorporation of a railway company from Quebec to Toronto. Could that be interpreted sus an act of incorporation from Quebec to the Province Line ? Unquestionably it could not be. But I shall be 20 told " there is a special exception for that" (sect. 92, s. s. 10, a). The exception is not, however, more formal than the exception from inwrporation by local Act of companies having other than provincial objects. I therelbre think that the Act purporting to create the body to be benefitted by the transfer of the tem- poralities fund is ultra vires in whole. There is another view of this case which depends on considerations entirely different from those which have influenced my opinion in one sense, or that of two of my collcMgues in another sense. As that opinion has the effect of turning the scales, so far as this Court goes, in favour of Respondents, it may not be out of place to notice it. One of the learned Judges thinks, I understand, that these 30 Acts are ultra vires, and particudarly the Act affecting the incorporation of the Temporalities Board ; but that the.se Presbyterian bodies being voluntivry associa- tions they had a right, without any legislation, to form themselves into one body, that by the appellant's refusal to join the new body, he voluntarily excluded himself fi'om the old, iind that he has therefore no interest in the Tem- poralities Fund, iind oonseipiently no interest to question the illegal character of the Board. I confess to have experienced some slight feeling of consternation on first hearing this mode of dealing with the case relied on. For an instant I wondered if all my previous examination of the case had been misdirected. A little reflection will, however, I think, dispose of this opinion. The pertinacious 40 use of the words " voluntary association " in this case, and in the case of John- Bton a)id The St. Andrew's Church,* induces me t« think that some inexplicable meaning is commonly attached to the expression. If it be supposed that a Pres- *1 Supreme Ct., Rep. 235; 1 Legal News, 13. 450 byterian Church is more of a vohmtary association than an Episcopalian one, I RECORD. am at a loss to understand the distinction. It seems to me to be a particularly unfortunate expression for a church association, for if there be any association a man is not compelled by law to enter, which is more iuvoluntn.i'y than another, it is the association with those of the same religious belief. But I must take it that the expression " voluntary association " means an unincorporated company, and taking it as such 1 shall deal with the argument. I admit there is no need In the Court of Queen's Bench. of legislation to enable any number of persons to associate themselves together for religious or other purpo.ses, and even to adopt a name as a designation. So the 10 four Presbyterian churches or any of their number, whether a majority or a mi- nority, had a perfect right to form an association and call themselves '* The Pres- byterian Church in Canada," witlu)ut the intervention or permission of any Legis- lature ; but such members had no right to take the trust funds accidentally in their hands, and make them over to another body ; nor could their adherence to a new body nnnihilate th ; old one, and so deprive its remaining raeinber« of their interest in such funds. It is evident from the ruling in Bourgoln's case, already cited, that incorporated companies cou''' ^t do so, and I fancy unincorporated associations would not have greater powo. '^ut if then! be any distinction there, then the temporalities is held inider the authority of an A.ct of the Legislature, 20 which by the reasoning under consideration cannot be touched by local legislation. If such a pretension as that I now combat were teruible, then a majority of the members of the Presbyterian (!3hurch of Canaiia in connection with the Church of Scotland could have voted a distribution of the funds amongst themselves, and in this way have defeated the whole objects of the donors. There is an argument which I have omitted to mention, probably because the answer readily suggests itself. It is said that the Legislature of Quebec had, previous to the Act in question, dealt with the Temi)oralities Fund, and that the Appellant had acquiesced in the action of the Legislature. I do not think that one unconstitutional Act can justify its repetition, or that the acquiescence of 30 the Rev. Mr. Dobie can appreciably extend the provisions of an Act of the Im- perial Parliament. In a case of Vautrin (tnd Niagara Mutual Insurance Co. the question was raised sis to whether an Act of Ontario could set aside an old Pro- vince of Canada Act aflecfcing both Upper and Lower Canada. We decided the case on another question altogether, and so no decision was given on the point. I may, however, say that I don't think the question raised in the present suit was really involved in that case. The object of the original incor- poration was [)urely local ami always remained so. Nor am I prepared to admit the doctrine that doubt gives rise to a presumption in favour of the action of the Legislature, which has been advanced by the learned Judge in the Court below. 40 It seems to me that such a doctrine is not founded on any logical basis, and that its adoption would jj;ive rise to great confu;>ion. In law there is doubt of the fact, and a variety of rules i)itimate how in such a case the Judge should decide; but when the Judge comes to give his decision in matter of law his doubts are at an end, however great may have been his intellectual difficulty in arriving at a con- clusion. I can easily understand that a consistent and uniform interpretation of the Confederation Act in one sense as to the distribution of legislative power, No. 74. Judges' Reasons. Mr. Justice Ramsay, (dissenting) — continued. 460 RECOUD. In the Court of Queen't Bench. No. 74. Judges' Roaaons. Mr. Justioo Ramsay, (dissenting) — continued. may come to form a potent judicial reason for interpreting the Act in that sense; but to say on each occasion that the authority of tlm Legislature is impugned, that " it is but a decent respect due to the wisdom, the integrity and the patriot- ism of the legislative body by vtrhich any law is passed, to presume in favour of its validity ".r.tii its violation of the constitution is proved beyond all reasonable doubt,'' appears to me to be slightly declamatory. If we allowed ourselves to be guided by such considerations, we should be abdicating our judicial functions in a manner that would indicate respect for the integrity of the Legislature, rather than for our own body. But to characterize the que^.x m before us, as one even of very serious difficulty, seems to me to be going a very long way. I would 10 therefore reverse, and Mr. Justice Tessier, I understand, concurs in the conclusion at which I have arrived. T. K. Ramsay, J. Q. B. I iji^ rj .,• ii^-