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Les diagrammes suivants illustrent la m6thode. 1 2 3 32 X 1 2 3 4 5 6 '-^'1 ON THE APPEAL OF • 'i'o I- III.: PRESBYTERY OF M02STI1 lEAL f PRE pic I'ctiiioii I by Iiiiii iiisti licKj)CCifu riiiit ill order laiit dirocts tl; |isc to it, ;iiid 1 'iiiit to ii judi:! ill and liii;lily tlicjud-iuoiit I iling by duiiiij,- 'lie case ahli iniportaiit (ju Iccdui'o, iiiid ill itcd upon, a.s to iJcd upon by 1' :lic standards a lodofthc Chui 'his case ori;^in ic first occa,«ioii jthc minutes shd [the business of The object ol' . Ewing, witli 1 ^'I'iiiioii, as tM ill I PKESIIYTERY OF MONTREAL. IX THE MATTER OF JAMES JOHNSTON, .1^/ Khhr nf St. A>nlrar\s Clnnrh^ .Vo>,/m,l, Al'l'ELLANT; THE KIRK SESSION 0/ Htil ST. AXDll/'JW'S CHURCH, Resi'oxdents. TO THE PRESBYTERY OF MONTREAL : the I'otitiou of ,1,0 s.id James JoIn.,ou hereby uppearing as appdlaut to prosecute tl.c RcujHci/iiUy Ji'q)r<:!iC)ttti, ■I.:.t in onler to the duo u.uler.tandh,, by the .aid Presbytery, of the present appeal, tho Ian dnvets the atteut.on of the Presbytery to the n.aln faets and -uLunstaneL Jhioh .0 to .,, and wh.eh s.^en. to tbe Appellant to leave no other eourse open to bin, than either - toj.ju ,n.ent,.luehhe eonsiders to be contrary to the diseipline and rules of the. h and lu.hly injurious to bis eharaet.r and standin, as an Klder of .be church, or to hejud,u>e„t belore the I'resby.ery lor u hearing and adjudieatien, at the risk ol" increased :lnig by duiiiL!,- so. he case altbou.h directly affecfin,. the Appellant only, yet raises before tbe Pre.- nnportant questions as to the jurisdiction and powers of Kirk Sessions, and their n.odes .ccdure, and nu ireetly brings up still n.,re vita! .questions ^vhieh must ultimately bo ud- itcd upon, as to how far chan,;es in th. n.odeof worship can under the laws of tbe Cbumh ndcd upon V lurk Sessions and Congregations, and how far an interior court, can interfere . standar s and modes of dia-ipline and worship, without tbe action of tho Presbytery loa ot tlie Cliuich. -^ •' 'hi. case originated in proposed changes in tbe n,ode of worship in St. Andrew's Church, #. lust occasion on winch the changes camo up, or were spoken of, in the Ivlrk Session so » e ..nates show or as this Appellant is aware, was on SuLy tl^ond day of ApW^T^^ ^tl busmess 01 the meetn.g i. recited in the ndnutes in tbe following terL • ' 1 e object of, luMneeting having been stated, it was n.oved by 3Ir. Morris, seconded I». iMvmg, wUh but one dissenting voice, - That the Congregation be requested to e.l^ propriety ol en„ be mode of Pubiie Worship, to staudini- at sinjf. 58364 ...wmp^^ 1 y ing and hnccling at prayer, and tl.at the n.euns of obtaining tl.c Hca«c of the Congregation on thtt'C points be left with the Moderator." At the next meeting of the Kirk Session, held on the 15th day of April, 1871,the Mode- rator reported to the Se.ion the course pursued by him, and the numbers of' the Chureh and Congregation who were " agreeable," •< indifferent." or " opposed," to the changes. The min- utos of the mectmg declare, that this report was received and adopted unanimously, and that .he course of the Moderator concerning the proposed changes was alao approved unanmiously, and the following entry appears on the minutes • '• It was then moved by Mr. Morris, and seconded by Mr. Ewino, and unanimously resolved :-rhat inasmuch as the majority of the votes given in were 'agreeable' to altering the mode o public worship from .sitting to standing at singing, and from standing to kneeling at prayer that the Session do consent to parties adopting the proposed alterations, or the posi- tion heretofore used and observed." Another motion is also recorded in the minutes of this meeting in the following terms, m : J hat this Session expresses its disapproval of any one member, unauthorized by the Session addi^ssing the members of the Congregation on business of the Church, by circulars or letters."—" Carried unanimously." The third meeting was held on the 2Gth day of April, the object of which is thus recorded m the minutes. " The Moderator then stated that the object he had in calling this meeting, was to consider the position in which the Session has been placed, /.<,^ by a circular issued and higncd by Mr Johnston, and circulated by him amongst the Congregation, as well as amongst members of other denominations, said circular containing mis-statements and mis-rcprescntations, and second, Mr. Johnston's refusal to retract the statements made in that circular." The Appellant does not desire to dwell here, upon the extraordinary and unusual nature, of the large part of the entries recorded in the minutes of Session, as constituting the proceed- ings of this meeting, in entering the excited and injurious remarks, made by one member of the Session against him. The Presbytery on reading them, will be able to judge of the temper y^hieh prompted them, and in what way the Appellant would be dealt with by persons who could utter or record such statements. It is enough to say. that at the next meeting of the Kirk Session, held on the 29th day of April ,t was proposed and carried " That no remarks of members introducing motions be per- mittcd to form part of minutes," and to refer the Presbytery to the minutes. It appears by these minutes, that the Appellant contended at the mectins, and urged that the report of tho Moderator did not pass unanimously, and wm never put to the meeting, or voted upon, and that the Appellant then stated that he had not agreed to any motion, except the motion to allow parties to use cither mode or posture at worship they pleased; also that Mr. Johnston when asked to retract the statements of his circular and express his regret for what he had done, refused to do so. The following extract from the minutes, will shew the further proceedings of this third meeting ( 26th April.) " Mr. Johnston having admitted issuing and circulating the circular in question, and its aver- ments having been proved to be untrue, by the unanimous testimony of the Session, as well as by the minutes of the Sc.Mon, and the language and insinuations of said circular appearing on Its vary face to be unchristian, Mr. Hunter moved, seconded by Mr Gr ui v.m • ° ) * ' : ,« ■■■-^V^nr.-V- .^JteHi);;.^^". ^-^ii^i^^i r -1W*" fl ll TV / 5 " That it havinn; boon clearly demonstrated to the Session thatfl.o a . or Johnston, one of their number, has been n.o.st reprehensible n lb • • " f '^'""•^ lous mistatcments, and in ^rosslv insnlfn .i ;J , '""^'" '" publishing grievous and calumn- Hion having dealt ^ith hL" r at^^^^^^^^^^^^^^^^ "^ «-on, and the Ses- inducohina to retract. „n5 he ha'v „l r ' lo /o " "^^^^ and still persisting in such refusal, nl jj 7 1 t;:/':^"" ^' f '7°" "^•^^"'""'• approved of his conduct, that this Session I n. 7 , '^ "'""^" °* ^'^^ ^^''^«'«° '^i^- Church. 3Iontreal." ''^ """^ '^'"'^"'"^ ''"» f^°"> '^<^ eldership of St. Andrew few ll'ntriVlTnlirb'^^^^^ ''''"^^ ^"-'^^ to suspend it for a -Mr. Johnston has Lletr;;^ ^^ ''^- H-XKa. Inasmuch and distributing the same amX t hetC :ft H """' t^''^' ' '''''''' ""•«"'"• as amongst people not belon^in. tosarcl ' ^ , '"' ' ^ "'"'^ t:°"g'-^Sation. as well false statements, and unchrisl: ve"!^ '•" """'" "°'"''^'"" ""-P-entations and trary to the rule of the F n a^, ^d mI; ""' ™' °''''"'^' ^^'"'^ '--'^ - nndcirculatingofsaideircula "rL! ; '°?r°"^"'"'"^^ Members of Lsion. to e rl he f ? "^^^^^^ press regret for his c ndue anT is id t ir U /" "'' "^""'"'' ''"'^ '° - do no^ again give said Mr John on . ' • ^""''^ ''^""''^ '' "^^ ''' '''^^ "- Session • and he is now asked a Br^the 7 .. ""'T"'"' '' ''''''' "»^^^* ^^^ '^ -''^ -"^-t, regret for his said c ducr^'hich ZT " "'' ^'""^" "'^ '''''^'^''' ^^' *° -P-« "Then th. M . , °" "'^" '"* *° ''° "^'='^*'°S was carried unanimously. said I^Z^:^tZ^^^''r-T '' '-' -^''-^ ^^ -y - — - *'•« ins reply in writing. '• """ "°*"'^°'' "'"^^ "^^ »^- «^'>'-«^n gave the follow- " The report was not voted on nor passed unanimously. ■ ^^ Said drcular did not contain either false statements o^ misrepresentations." though reUedly:^^^^^^^^ "^ '^^" '"^'^'^^^ ^'^ -^ written and formal accusation " Signed," .,.,,, "J. JOHNSTON. ' This meeting of the Session was adjourned to the 29th of April Iho Appeltae, he .uLi., .„ the pib 1 h. 'T M, ' °"°T' " ''°'"="'""' ''«'''""' :is»awf!aais*'i\'fr- -. ^<,WW.W i<1ii" '" ' (^ mlm ridHMk! "1--KMl^. Mn-sion, I considered it but r dit and proner to stnt,. I am yours respectfully, iSiu tlio (Jth Mnj', 1871 th.. A. n ®''*"""" t.^'crk. «'■ 1..-. in,o„,i„„ ,„ .;;„, ,„ ; v^"";' ™'r«j ... 1.0 .,„„ „p.„ „,„ ,„,.„„ „, ^ »f rea«,„, of.pp,.,| i,, „ ■ . ""'')'">• «»... tlio jad..„,„„, ' „ , , ^'"'^- ' °0lK0 ^"Mi«>„. Of..,::::;- :::ivt; "^''—^""'"^o :::::;'■« :-" -"■ """^- to the J: t :r;: ^-^^ -- .,. circu,,: ; : -,,-^-"-- -. .•„. '< Rn«n„ • . ' ^ evidence proporlv fnt„„ .t P'^oper and forma com- - circulating misrepresentations, . I nn.l also nt^tcncn.., and uncl.nsti.n ..yormcnt., and in«in,mtions, In ,,id circular, tho mn. Hl...uld l.avo bcH-n cnu.noratcd or pointed out, but ,v«ro not enu.nnratcd or p>i„fod out and m •Worlunuy f^ivon to nuid Jau.o.s Johnsfou to provo tho truth of tho alloKations in «nid circul .r which opportunity, al.hou;,^. ankcd for in .said answer, wu. not f,^vun, nor any evidence .iven or taken lu respect thereto, nor was thnro unythinK to justify tho said judf,'mcnt of said Session." "Because as well from tho proceedings of said .ncotinj,' of tho twenty-sixth day of Anril as by tho term.s of the said complaint and jud.n.cnt and the proceeding's in the .said matter 1 .d ' U appears, „„d was in f,,et true, as the s.id Jan.es Johnston alle;,-cs, that the .said proceedi.'...; were irregular, and were taken hastily, and without re.^ard to tho rights of the s.id J.un.; Jobnston as bon,^ entitled to ur,o and establish in evidence the objections by hi.n taken a.ainst the proeeed.ngs, had toestubli.sh the consent of the ,aon>bcrs and Pew Holders of the Ulu.reh to the changes and alterations propo.sed in the mode of worship in the .said Church • and be' cause the .,aid proceedings were illjudged, ha.sty, and were injurious, and unfoun. led, and npparenly tended to convict the said James Johnston of having printed and circulated as well an,ong the Church and Congregation, as an.ong other people not belonging to tho Church' n.is representauonsand fu se staten.ents. and unchristian averments, and insinuations without'p oof thereof, without detail of any specific points so alleged to bo false, and without an opportunitv having boon given to said James Johnston to show either the truth of tho said circular or t , contradict the allcgationa so made in tho said complaint or minute of the said twcntv-sixih dav ofAprillast.' ■' *"' "ay _ " Because if the allegations of said complaint as made in respect to said misrerrcent. tions and false statements, are to be held as established by tho said judgment, the saiJ James Johns ton by tho said proceedings and judgment has been, and is charged and condemned respect of matters which completely destroy his character, and influence as an Elder in sJ.i Church without an opportunity of exculpating himself, or specification even of the alleged mis representations and false statement.^." a.iL^tu mis- " i:ccause in other respects the said judgment wa., and is wholly contrary to, and beyond the powers vested in the said Session : and because the said judgLt and'al the poccTd ings upon which It was base , were and are irregular and unsupported by proof, and aro moreover big ly injurious to 'the said James Johnston, and the said James Johnston is the" ore compelled from regard to h^ own character, and to prevent further injury, not to s bm t to said judgment but to notify his reasons for appeal therefrom, all which is done IZlZ respective of the merits of the proposed changes in tho mode of worship, or the nl of t 1 ^o,crator t« ask the Session by his report to set aside the formal dissent handed ^^ ! 11" rr: r^^^^'^"*'"*'- -P-^.^" respect of their consent to the proposed ehan^s; and without reference to proceedings had in case the judgment so rendered be set The Appellant adheres to these reasons and respectfully submits chem to the judgment of the Presbytery, as we as all the facts connected with the ca.se, so fl. a, they now app o econ, Indeed he might content himself with tho general reasons of appeal eop'ed above wo o t not that .some more amplified statement of these reasons may tend to justify more f ully tl As TO THE POWERS Of KiRK SeSSIO.N IN .MATTERS OF DISCIPLI.NE. The Ap. Wiiflbii fc i4BB S^ 10 reliant refers only on this l.oa.]. to Mr. Hill's Manual of " The Practice i„ the several Judicatories of the Clmrch of Sootiaml," at pa^os 1 ami 13 an.l tn fl.> n„f. a v on.e Cl.rc,.. att,.eSe.ion of f.o Syn^l ,.e.^ ^t IlH:;^:^ ^^J^J: ^ W., ,/ ./. Ckurckr Chapter, 1. Although this bo., doe. not fro^ these pro^dl " ^^^^ ings n ay have Ixea had as to this book subsequent to the then mc3tinc. of the Synod The c^^i U V'7"" '"""' "^^^"''' '° """"^'^ ^° '"^ ^^'^^•" -' -'--*-e and strictly ecu at doh.u ion or enumeration of the powers of the Session, as detern.ined by the reeo^nixed T„ so far as the present appeal is concerned, it may bo sufficient for the Appcl-'-. la respect ully to submit to the Court, that the conduct of the Appellant has notbeen Xn 'to::.":: zt '^"'^ ''''- "^"^°"' *" ^'^^^ -^ ^^^^^^^^^ ^° ^- ^^'^^ • PC rV n 1 e rlT^ P H '^"' "" '°'""°""'='^ ^'-judgment appealed from ; and that nothin, tT e W ; f G d or 1 """ '^ ^'"'^^ ^"y^"'"'^' ^'^^ -°-«-^ V the Appellant contrary the VVord of God, or the universal custom of the Church, or the confession, or catechisms re eo...ed, nor any offence public or private injurious to individuals, or unbec minTl li n a.^ Llder, as .s rccjuired by the authorities referred to, and to which Appellant refers the Presty! ■ As TO THE MODE 01- PROCKEmNU ADOITED «V THE SESSIO.V, AND XUE PKECISE OKKENSE CIIAEOED OK .VXEXDED TO BE CHAU,1ED.-It will bc Seen from the ~ Iv^crv'so L ;, r' "T '^ ^^™'""' '' '""^°'' "- ■"^-"-^- of the Pr.s- by cry so far as they bear on the case, that there was no accusation against the Ap- l^at served on hi. which any person undertook to make ,ood. no fama clalosa or publ e anda calling for the action of the Session as prosecutor. No citation calling him to answer n a day named, no specitica.ion of what constituted the false statements, misrepresenta- 1 f of ' T'T TT' '"''' "■^'""''''" ''' '''' ^'"'^'"'' ' "° °->--tion of evidence ; no proof f any kind adduced, and no admission except of the fact of publication of the circu- lar, and this coupled with the express denial of the allesed false statements, etc., and an earnest application for an mvestigation. In all these respects, it is submitted, the proceedings were irregular, and so radically defective as to render the Judgment a nullity. ''O raaicaiiy intent on of the Session simply to charge him with a breach of the so called " Kulo " of Se«- Tin ^".^-^.'^^^Pf'.^^f-P'^^'i-tionof the circular; or whether the gist of the charge layin pubhshingand circulating a circular containing/a?., statancnts, uncknstla. avcnncnU, U. On either supposition, the Appellant submits, that the proceedings were strikingly irrcgula and unwarranted and should be vacated by the Presbytery, if for no other reason tEan that the Kule relerred to was not a rule which purported to enact, or could legally be followed by, a .u.»» t has not been 10 Kirk Si;s- i that nothin;^ lant contrary latechisnis rc- 5 his position '3 the Prcsby- HE PRECISE the procec- i makes re- >f the Pr. s- ist the Ap- ?(t or public iin to answer isreprcsentu- of evidence ; of the circu- d an earnest so radically !r it was tho le " of Ses- the charge awinncnts, ;ly irregular lan that tho lowed by, a if there is one or both \ 11 Tho effect upon tho character of the Appellant as an Elder and Member of tho Church, and his duty as to submitting to, or appealing from the judgment, would bo very different on the one supposition from what it would be on the other. If ho is suspended for violating a rulosimply by the publication of circulars, or of any circular, then his suspension might be held to be simply caused by the breach of a strict rule which might be considered simply as a rule of convenience, but still a rule which must be enforced. In case of infringement of such a rule, no great moral blame could be attached to him, certainly nothicg like that which attaches to him now when he may be looked upon (and as the Appellant believes and as he has great reason to believe, he is looked upon) as if he had been proved guilty, that is to say, found and adjudged guilty, after a fair trial, of publishing a circular containing false statements, and unchristian averments, and insinuations. It is the duty of tho Appellant, as he believes, to try and relieve liimself from the conse- quences of the judgment, and he therefore desires to submit to the Presbytery as a Court of Appeal such considerations as may tend to shew he was not guilty of a breach of any " Rule " which was legally in force, or which could warrant his suspension from his office, nor r" Mic greater moral guilt which a just and fair investigation, trial and condemnation, for publ.. .ng and circulating false statements, &c., would carry with it. The rule has already been quoted, it is in these terms : "That this Session expresses its disapproval of any one member unauthorized by tho " scsilon, addressing the members of tho congregation on business of the church by circulars or - "letters." " This would seem to point to a disapproval of circulars or letters already published, and by implication only to include future circulars or letters. The circular in question it is admit- ted was not published at the date of the " rule". Bat assuming the applicability of the rale to circulars or letters, or even to one circular or one letter, by one, or more than one member of the Session, and assuming that there were appended to it words tending to shew tho intention of the Session to treat a breach of the rule as matter of discipline by adding words such as, " on pain of subjecting a member so addressing the congregation to difcipline " " to expulsion " " or suspension from office." Assuming it in fact to have been intended as an imperative order or rule of the Session with a penalty or punishment for its contravention clearly pointed out as a warning to an offending member— questions would still arise— Is such order valid? Is it not wholly beyond tho powers and jurisdiction of the Kirk Session to try a member or punish him for a breach of it ? The answ«r to these questions seems clear from tho standards of tho Church, from the opinions of authoritative and acknowledged writers and commentators on Church law — « Nothing is admitted " (says Hill, page 13) " as the ground of a process for " censure but what has been declared censurable by the word of God, or some act or universal " custom oi'this national church, agreeable thereto." The article in the Polity of this Church already referred to, if not adopted as yet as posi- tive, binding law is yet in conformity with the general practice and usage and may be quoted in support of older writers. " An offence the object of discipline, is anything in the principles " or practice of a member of the Church which is contrary to the word of God, tho confession of " Faith and tiie C.itechisms of the Westminster Assembly. Hence, nothing is to be regarded " as just cause of discipline which cannot be shewn to be condemned by Scripture or by tho es- 8 inleas involving p. 44. iferior Court " ed and defined "known to the ih as that now )uld seem pro- . ? with offen- ndards of the )f the highest ataddressinir 3'nfe'suchrulo es for its own 'o 80 against t thus there I^resby tery ; >i'k Session ndeiiunier- e intended ' appellant 'od of the 3sion, and forcement that cons- iddrcssed "Its, and been fol- cuEation referred ^ as un- n of its ut such nent or tters of irgesof princi- 'ed, or rt any Jfthe fur- itttn 13 answer to the document served upon him on the twenty-seventh of A i , the appellant express- ly denied the false statepionts; declared any statements made byhir-: - his said circular to bo true, and demanded a proper enquiry whether the statements of the circular were not only true, but moderate and necessary, or whether they were such as mentioned in the document delivered to him. No evidence however was taken on cither side; the fact of publication alone was admitted, and not the alleged circulation amongst people not belonging to the Church referred to in the beginning of the minute of the 2Gth April. The course of the proceedings, points, in many parts, to the conclusion that the members of the session treated this admission, as in itself a sufficient admission of guilt, and held that tho falsity of the statements etc., needed no proof. Indeed the document served on the appellant on tho 27th April (after the meeting of the 26th) seems to point tho same way. It in effect says : " Inasmuch as Mr. Johnston has been charged with issuing, publishing and circulating a printed circular containing false statements, &c, and having admitted this, and having been called upon to retract and express regret, &c., and having refused to do so, the session do now again give Mr. Johnston an opportunity to retract and express regret, &c." If the Session held the simple infringement of the " rule " against addressing circulars a sufficient cause of discipline such language as that cited is intelligible. As containing an accusation to be met by a defence, to be examined into and tried by evidence, the language appears wholly unsuitable and is certainly not in accordance with the usual forms. So in the minutes of the 2t5th April, it is said Mr. Johnston having admitted the issuing and circulating the circular and its averments haviug been proved to be untrue by the unanimous testimony of the Session, as well as by the minutes of the Session and the language and insinuations of said circular appearing on its very face to be unchristian. Mr. Hunter moved, &c., that the Session do now depose, &c. Assuming this to be the language of a preamble to the resolution (which resolution, strangely enough, refers to grievous and calumnious mis-st. ^ements, as well as gross insults to tho Moderator and members of the Session,) the Session cannot be considered as adopting or justifying it, but it confirms what the official document served on the Appellant on tho 2nh April, also indicates, viz : that the Appellant was not cited to answer an aecusatioi and to submit to trial and proof in the usual way, but was called upon to retract and express re-ret or to submit to the consequenoes. ° ' _ The Appellant respectfully submits to the Presbytery by this appeal, that such an alter- native is not consistent with the law or practice of Presbyterian Court?. Whilst the Appellant earnestly denies the alleged false statements, etc., said to be con- tained in the circular, and solicits a full examination into the truth of the matters of fact set up in it, (if such proof can be gone into in any way consistent with the laws and practice of the Courts of the Church), he fears that the Presbytery as a Court of Appeal, m.- y find difficulty in entering into such proof, there being no witnesses heard on either side in the Court below He desires nevertheless, under the indulgence of the Presbytery, to indicate briefly the princi'- pal matters of fact referred to in the circular which may, by possibility, be those characterized asj'ahc, &C, IX 14 • Audjirst, as to .vhothcr tl.c report of the Moderator was actually ^,„< to the Session and adopted, or was not voted on, nor adopted, as insisted on by Appellant. This ?s a nmtter of little real interest, because the reception and adoption of the report would not carry with it a vote or decision either for or against the proposed changes, but it would test the accuracy of the minutes, and shew, as Appellant believes, that there was error in inserting in the minutes of the 15th of April, that the report was adopted, as there is in the onnssion to state in the minutes of the same date, that the motion to the eifect that p rties should adopt the changes, or adhere to the previous postures, was passed unanimoushj, sm,o in fact the Appellant opposed it. By the minutes of the 2nd April, it does not appear that the motion to recjuest the opinion of the Congregation as to the changes, was put to the n.eet- ir,9 or earned with but one dissenting voice. This last error apponrs in the certified copy of the mmute signed by the Session Clerk, and delivered to the Appelant. Nor was there aay en ry in the minute book itself, when examined by appellant in July, as to this motion havin^ uccu so pnit and carried. ° This statement in the circular, as to the report not being put or voted on by the Session ni..y be, and probably is one of the statements stigmatized as/«^.c, and the Appellant had an in- terest in proving Its truth even although the point was of little moment in itself, and althou-^h Kuuh proof would contradict the minutes. ° The Appellant is prepared to state, and does state, as his firm belief and conviction, then and -aow-, that the motion to receive and adopt the report was not put to the Session, nor voted upon He therefore could neither retract the statement, nor express regret for havin-^ made i^wiUiout an investigation and proof. If proof had been adduced, it might have corvinced rorS . ^"^^ "^ «":»■• °" the point, but Appellant believes it would have shown the error to have been in the minutes. _ Another question of fact referred to in the circular was the actual number who voted ngainst, or for the changes, or were indifferent. The Moderator's report was based on the num- bcr answers sent in by the congregation, and made the minority opposed but small. Tho Appellant basing his view upon the total numbers of tickets issued which he put at about 480 c^uneto the conclusion that the number which could really be considered as "opposed" was 258, and tho number " agreeable" as 222. a though he then considered and still considers his statement correct, but it was only fair that he figures andm.tters of fact should at least have been examined into-beforc punislg Appel- lant for publishing false sta tcments. ° ^^ But an examination would have brought out, what it is very important to know namelv ow many C urc members, how many pew holders, and how man'y of'tlie Trustees o'rolt of he Church voted one way, and how many the other way-and knowing how many had voted each way, how many officers, and Trustees of the Church and who they were, and what heads of families voted or failed to vote there would have been fair data from which to judge how tho proposed changes were looked upon by those whose opinions were entitled to most wekt. See note in Appendix. ° No record of this is to be found on the minutes, and a change of .uch importance is made t'thit eff^ctTV'r '''"'"'";. "'*'°"' 'here being any motion or resolution of the Session to hat effect, or sanctioning a change except the resolution of tho 1.5th A.ril leaving the whole matter .„ open qncstiou by the term, of the resolution quoted above "tirat the Session do con- n 15 " sent to parties adoptin- the proposed alterations, or the position heretofore used and observed." The question of the moderator's having visited voters who had sent in their votes as "op- posed" to induce them to change their vote.«, was touched on in the circular. In the minutes it is declared that the Moderator stated ho had not asked them to change their votes, " but merely to acquiesce with the majority for the sake of conformity." The Appellant respectfully submits, that whether the GO persons who sent in votes as " op. posed" changed their votCF, or withdrew their opposition, or acquiesced fjr conformity, or wero asked by the Moderator to do so, is of no great importance, except that the Session with votes in their hands from parties as Apposed" might have called, and as Appellant thinks ought to have called for some evidence of the change of views, or acquiescence, before treating them as iravln- real- ly acquiesced in changes of such importance which they had formally oppos'cd. But not having inquired into the fact, having refused tj investigate it, by testimon'j, the Session erred— if it considered the circular as disproved, or the statement in it as false, even if the statement of tho Moderator contradicted the printed statement in fact, and not simply in form. .. M "."'''f f f "'"* f^^l "''■°"'"' "' *' ^ '"^"'■^ °f f^"* ^'^ '« the effect that the Moderator had recently said " that to sit at prayer was most unseemly." This was also a matter of fact which required to be examined into, before it could be held to be a false state- ment or an unchristian averment. Whether the statement was, or was not made by the Mod- crator, does not appear of record, there being no evidence on the point, inasmuch as the prayer ' of the Appellant for proof was not allowed. ^ ^ In the report of remarks made by a member of Session and so irregularly entered on the mmutes, is the following statement. •' That the foot note attached to the circular, contained a vile insinuation that tho boxes containing the voting tickets had been tampered with, and the voting not conducted fairly and which was untrue " ^ Now tho foot note is in these words : "N. B. "sealed bojes," not " closed boxes " was the language of the pastoral » The appellant does not desire to allude in this appeal to the pastoral, which docs not appear on the mmutes of Session. It is a printed document and the words "sealed boxes" were the words therein used. The appellant is therefore unable to perceive how the mention of this fact can justly be called a « vile insinuation " nor how he should have been dealt with as ho waa, for stating the fact as it really existed. The only other statements in the circular, to which tho appellant thinks it necessary to allude, relate to the report being called " an unfair document " and to the resolution as " in^^eni- ously worded " because it referred to the notes " given in " as " agreeable " not to tho whole number " issued." It will be noticed that the circular states the object of the appellant in pu- blishing It to be « to correct statements made as to the result of the voting of the con^re-^ation on the proposed changes and posture during the worship in St. Andrew's, and to show that°theso statements were far from being correct." This was a fair and legitimate object. The Appellant had a right to oppose the changes, and to argue against them by all fair and open arguments. He used his right, and Unfortunately has suffered for doing so, and is therefore driven to this appeal. He may have argued incon- .clusivelym urging that tho whole number of "votes issued" should have been considered as the test of a majority, and not the numbcr'-given in." The circular may have been weak 16 anJ ils arguments considered as " unsatisfactory" by the Session as his written answer to tl.o document served on him was declared unsatisfactory. But to characterize the circular as containing false statements, &c., without enquiry and proof, to depose the Appellant wUhout Hpocification of charges of what portions of the circular wore held as false or unchristian and without enquiry by the ordinary rules of the Church and on a regular charge and proof;- and I , enter upon the minutes, such remarks as will be found there, appears to the Appellant to be contrary to the rules of the Church and to the practice of its Courts in matters of dis- cipline He is satisfied, however, that the body of the Session were led into the course adopted, from no inimical views to the Appellant, and with no desire to do him injustice but he IS obliged to treat the proceedings of the Session, as the proceedings of a Court, and not to enter upon details of the statements and conduct of individuals composing and to a lar«o extent controlling the Court. The Appellant believed, and therefore stated in the circular " that to stand at prayer was and now is the rule of our Church," and he therefore opposed the changes, and did so honestly andopenly,and declined to retract orexpressregretfor statements he made,and persisted in claim- ing an inquiry whether his statements were false, or unchristian. The present appeal is to test the regularity and justice of the proceedings and of the judgment of suspension. Directly it may affect only the Appellant, but to him it is of importance to submit to a higher Court ques- tions of much personal interest to him, affecting so gravely his position as a member of Session, and of the Church. But there is a much graver question indirectly raised by this appeal, and submitted to the consideration of the Presbytery, a question which must sooner or later be formally decided by the higher courts of the Church, vie : Whether under the law of the church as it stands at pre- sent it IS legal for a Kirk Session, to introduce or sanction such changes in the mode of Worship as those referred to. This question the appellant submits to the Presbytery for such action thereon as it may see fit to adopt, with a view to the settlement of it as respects the St. Andrew's Church in the first instance, and for the guidance of Kirk Sessions generally. If there exist now, a uniform, settled, mode of worship, sanctioned and recognized by tho law of the Church and followed for ages by Presbyteries as a body, it is obvious that it would be destructive of uniformity to permit Individual Kirk Sessions to deviate from this mode by a simple resolution, even if supported by a majority of the Church and Congregation not to speak ot a majority only of votes " given in " a. in St. Andrew's Church. The established mode ought to be tollowed until a change has been approved by the Superior Courts of the Church. Utnerwise it is not easy to see to what length changes may be carried, if any one Session has power to make them as may seem best to itself. One Session may be content with changes of posture such as arc left open by the resolution of the Kirk Session of St. Andrew's referred to. \nother Session may think that a liturgy is quite as desirable in order to attract men of culture aud education into the Church. A Third Session may introduce candles on the altar, or Church vestments, unknown in the present prac tico of the Church. Each Session might vote for such changes as seemed desirable to itself, and thus by degrees ignore, or set aside, the practice of the Church and the control of the Church Courts, whilst all the time professing to adhere to Presbyterian Standards and Polity. In a small Kirk Session it would only be necessary to vote the conduct of the minority in opposing the change unsatisfactory, and the deposition of one or two members might leave a clear maj(> I k* if MiiMi iii'tliiii 17 rity if not to vote for the change, at least to acrjuicscc in it, to avoid consequences, or for sake of conformity. In addition to the general considerations thus submitted there is another argument against the legality of the powers assumed by the Kirk Session of St. Andrews as to tlie cliungcs referred to, drawn from the Statute of the Province p s^ed in lSt9 (12 Vict., chap. 154) und from the amending act of 1857 (20 Vitt , chap. l!)l) in connection with the By Lawn passed at the meeting of Trustees of the Church heU on the 31 Doc. 1850 and adjourned to tlie 11 March 1851. By the former of these Acts (section 1) the llov. Alexander Mathieson and other persons named, and their successors for ever are created a body, politic in name and in deed, by tho name and style of The Minister and Trustees of St. Andrew's Church, Montreal, with power to sue and bo sued in all Courts, and contracting and baiag contracted with, relative to the funds of the Corporation and the purposes for whioh tho Corporation was constituted, with power to make " such Bi/ Laws, Rules, and Regulations as shall not be contrary to the Cons- " titution and laws of this Province, or to the provisions of this Act, or to the Constitution of " the Church of Scotland as in that part of the United Kingdom of Great Biitain and Ireland " called Scotland, now by Law established," By the second section it is enacted, that on sale of tho Church property, tho proceeds shall bo " solely applicable to the maintenance of the public worship of God according to the form " oj the Established Church of Scotland " or to schools in connection w'.th the said Church. The first article of the By laws is in tho following terms : " The Church and Congregation now in connection with the established Church of Sootl.ind " and adhering to the Standards thereof, declare that they shall continue to adhere to tho said '• Standards and maintain the form o/ worshija and Government of said Church. Article 5, provides for the selection of a minister and his acceptance " and having re- " ceived his acceptance the same, together with the presentation, shall be laid before tho Pres- bytery of the Bounds, in order that the presentee may bo invested with full powers as a Mi- " nister of said Church according to the laws and practice of the established Church of Scotland." Article 18. This Church shall bo under tho ecclesiastical jurisdiction of the Synod of " the Presbyterian Church of Canada, in connection with tho established Church of Scotland, v.s " sanctioned by the declaractory enactment of the General Assembly of the Church of Scotland, " passed on the 2-lth May, 1833. It being understood that no actor declaration of said Synod " shall contravene article 1 of those By Laws, and tlie Act of Incorporation of this Church." Article 21. Every person, whether proprietor, pew holder, sitter, or member of this " Church shall before they can be competent to elect, or bo elected to any office, or to have any '• share in the Managcmcni of this Church subscribe these By laws. Assuming these By laws to have been legally made, ai,d to bo unrepealed, they have the force of law, and by their terms, as well as from the tenor and object of the St.itutes, it is clear that St. Andrew's Church is connoeted with the Establishrd Church of Scotland in such manner as to be subject to its conscitutiou, its standards and its practice, and is bound to continue to ad- here to them, and to maintain the form of worship and government of that church including its mode of enforcing church discipline. The constitution, the laws, the standards and the practice of the established church of Scotland together with the statutes, and the By laws referred to, form the law of St. Andrkw's Cinmoir, under whic" "ts property is held, and \t% temporal and spiritual matters conducted. rinaiiMi ? "f .1.C So»™„ d„ ,„. "'"fy 'ho S..tul=, or By U„,, „„ „„ ^^^ ^^.^ Weed under Article IStl, „f „,„ fc, ,„, , "° ,'°" " '""^ l«S«l «ueh el,a„ge.. e«™. .he term, »''"'« «"' ArUele of .he B, ll *°*°'''"' ""''' "^1/ *cr or 'rp^::X:::=:^i^^ - -- «r .. Pre,v.er. .d »lw»gly h,nW at, i„ „„„ h„ r,i, J ™ «"'»« "tnnl.es from .he eo„,e,„e,ee. » ...led .0 eo.p,.i. of .he proeeedieg, of tte So ' ™'"'" "^ *" '» -*r. h! i. e.. .. -P.-,..hehe..hooar.e..a..e..of.hoCo„r..,e...h.^^^^ as on a eh..^ . „„. rr,„,-r,-:':Se::r°""-'^ """ "^ ''« ^-'™ - -et^^td J..e. ° """"""' "^ ■"!""«»»».■• .hew „?.! °'"'°°" "■'" ■'«'o».e.b.od r.1.!, '^'' "'''«*»»"«' »f""ver.i„. a V IT °°""^ »fa Feci,, and defini.. That when served wi.h .ho Ee^l,- . "■ »h«l ■« appear, ao««ed .he Se.i„n h, an al^X" W i".' ! "'" ^"'' "" ^fP«"»' »» *« =9thApril ' inatthis wasasorefusp^ n„j /. „ •' "^°'^° ""e or false. ' TheAppellantsubmitstothePrcsbvtcrv „,^ '""°'\'" '"-^^P^^e Appellant from Eldershin -00 se.re, bue ..ethenl. 803^0^:; rrr;^^^^^^^^^^^^^^ .ularl^, n„d wah.a H« jurisdictioa in, rendering O , MIHMli l umlggi^JM ^hL I^aws on the meeting J not been signed by Jf Article 21.--Bufc nor can any action carricj into effect) 'rch of Scotland, it changes. the gravest doubt Id validly alter or B Presbytery, and ^irk Session of St. 1 it his clear right ^e did oppose, by misrepresention, consequences, so r. foregoing state- 'isiders ho is en- sJiing the follow- the 26th April as a charge and the very day on the circular is 'tis said: Mr. statements and « and definite 5t of meeting hat it appears he 29th April' tatements &c., g simply de- ' he had been 'he judgment " might well I Eldership. IS too lenient n, rendering I , 19 nnyjudgmcntayinstlho Appallimt, or whether it wa.", led into an usurpation of authorify which the Presbytery cannot legally sanction. Ho at this hour is unablo to determine what were the precise false statements, or unchri,tian averments, and insinuations in the circular for whicii ho is su.poncled. lie finds no specification in the charge, and none in the j udgmont, and he has been forced even in this his petition in Appeal to grope about in the dark, to argue as if every statement as to matter of fact might not be one of those qualified or false, or as a misrepresentation or an unchristian averment." But such a judgment, even if rendered on a charge clearly and specifically made, in a ro- gular and formal act of accusation declaring what statements were false and what unchristian would still (as appellant submits; have been beyond the Jurisdiction of the Court and' against Justice, if rendered without evidence ;-and doubly so, when there is no legitimate accuser no public scandal calling on the session to prosecute, and no formal written citation, and the' judgment is based on an irregular resolution calling simply for the withdrawal of alleged false statements, and an expression of regret for publishing them. It may be added here, that notwithstanding the notice given of an Appeal, the Fe^sion has proceeded as if no appeal had been taken, by not giving the Appellant notice of meetin-s of Ses- sion subsequent to thenotice; thereby treatingthejudgmcntaslcgalandfinal.andthiscontrary tothe uniform rule in such cases, that an appeal is suspensive of the judgment appealed from, and al- though the Appellant was entitled to the exercise of all his rights until the appeal has been finally determined by the Superior Courts. ^ Your petitioner therefore prays, that the Presbytery, as a Court of Appeal, takin- into consi- deration the premises, do by its judgment, adjudge and declare the said Appeal well founded and maintam the same ;-that the proceedings and judgmentsof the said Session of St. Andrew's Church, bo declared to have been contrary to the laws and practice of the Church and beyond the jurisdiction and powers of the Session, and the Statutes and By-Laws relating to said St. Andrew's Church ;-that the judgment rendered on the 29th April last, be declared to have been rendered on no legal citation, accusation or summons, and without opportunity of adducing testimony having been allowed to the now Appellant, altho' specifically prayed for ;_that the said jud-^ment and proceedings be vacated and set aside ; and further prays that the said Session be ordered to insert on Us minutes a copy of the judgment to be rendered by this Court ;-and further and eubsidiarily prays that this Court do, by its judgment, declare that in proceeding to the said changes in the mode of worship in the said St. Andrew's Church, the said Session contravened the law of the Church and its recognized Standards and Practice, and also said Statutes and By- Laws, and that it be enjoined against any longer sanctioning the said changes in the mode of worship in said Church, the Appellant reserving his right to such further conclusions and proceedings as may be allowed by the law and practice of the Church Courts. Montreal, July, 1871. JAMES JQHNSTON. APPENDIX. MODERATOR'S REPORT TO THE Congregation of St. Andrew's Church. At a Meeting of Kirk Session, held yesterday, inter alia, the following Report and llcso- lution were submitted : — " With reference to the resolution of the immediately preocdiDg meeting in which the means of obtaining the sense of the Congregation as to the propriety of changing the mode of Public Worship to standing at singing, and kneeling at prayer, was left with the Moderator, Rev. Mr. Lang reported as follows: — With the view of carrying out the Session's Resolution of the 2nd instant, I addressed a cSrcular, on the 5th instant, to all the Members and Seat-holders, and enclosed a card which they were invited to fill in with the word "agreeable," or "indifferent," or "opposed," according to their feelings in the matter, and to deposit, on Sunday the 9ih instant, in closed boxes, placed at the two great doors of the Church. At the close of the Evening Service of that Sunday, I opened the boxes in presence, as witnesses, of those Elders who happened to be on duty in the Vestry, and found that the cards returned showed the following result ;— " Agreeable " to both changes of posture - - - - 190 " to standing at singing only - - - - 3 " Indifferent," 21 " Opposed," '^^ In all - - - - 285 In consequence, however, of the defective postal arrangements in the city, I deemed it only fair, in order to give full opportunity for the expression of Congregational opinion, to intimate on Sunday forenoon from the pulpit, that I would receive cards up till Wednesday from those who had not yet got their circulars. In this way, there fall to be added to the numbers re- suit to stand thus : — " Agreeable " to both changes of posture, - • - to standing at singing only - - - " Indifferent," " Opposed," 218 4 22 86 In all - - - - 330 The minority being so comparatively small, it seemed to me desirable, before reporting to wmm hurch. Icport and Rcso- ing in which the ;ing the mode of I Moderator, Rev. nt, T addressed a d a card which posed," according ised boxes, placed )f that Sunday, I )c on duty in the ', I deemed it only tinion, to intimate aesday from those the numbers re- l 3 before reporting to 99 the session, to ascertain to what extent those Members and Seat-holders who composed it might be willing to acquiesce in the finding of the majority. I accordingly waited on as many of tlioso who had returned the answer " opposed " as the time at my disposal permitted, and, out of 7 J I found Willing to acquiesce. Unwilling 60 12 —72 14 Leaving to be accounted for • - From this statement, it would appear that, even supposing the half of those 14 whom 1 have not been able to see as still of the same mind, only 19 out of 330 are really opposed to the changes in the mode of public worship. It was then moved by Mr. Morris, seconded by Mr. Ewing, and unanimously resolved: — " That inasmuch as the majority of the votes given in were " agreeable " to altering the mode of public worship from sitting to standing at singing, and from standing to kneeling at prayer, that the Session do consent to parties adopting the proposed alterations, or the positiin heretofore used and observed." [This Report was copied in Mr. Johnston's circular, with the exception of the last two paragraphs.] THEN FOLLOWS MU. JOTINSTON'S CIRCULAR COMPLAINED OF: At a Meeting of Session held on Saturday, the 1 5th instant, at which the above circular was presented for approval ; It was moved by Mr. John L. Morris, seconded by Mr. Josejili Hickson, that the Report be received and adopted, — that is the report given above. At this stage, the further progress of the Report was opposed for the reason, among others, that the sealed boxes containing the voting cards were opened by the Moderator, before ar.y Electing of Session had been called ; by this means the Moderator found out who had given in " opposed " cards, and then called upon those, to try and induce them to change their vote ; also, the latter part of the report and the result as shewn by the placing of the figures being altogether too unfair to find any support (after asking the Congregation for their honest and independent opinion by " voting cards,") beyond the mover and seconder ; — the report waa withdrawn, with- out the motion for its reception or adoption being voted on. The Report after being rejected by the Session should never again have appeared, but con- trary to a Rule of Session made only on Saturday last, the Moderator, by Circular, publishes big rejected Report on Sabbath morning, and that unfair document is now before the public. The voting cards next occupied the attention of the Session. Voting cards issued in all about - - Voting cards, returned opposed " ".*••. ; :••. : indiffer^rt: ; C'V . . * • :• ": . -nbl-returfted- ; :<:., s'-*. •..-:. 480 86 .22 J50 Considered.&S t>l»^^ -••. ' •• ••'••..•>.. ''-'!*..• :§08 Agreeable 232 It will be observed that the following resolution is ingeniously worded, to convey the im- n prcsxioD, that a majority of the Con^re<^Altai IM in favour of a cltan^c of fi(i!:furo, wliilo in fact a majority was ogainut it, as is sliown firom tB» figures. It was tlion moved by Mr. Morri», secohi^i' hy Mr. lilwin'-*, and unaniinouslj rcsolvod : — " Tliat iuasniufli nn the majority oi the vottH (Vivas' /^ were " .I'^recihle" to iilfcrinj:; tin'' mode of publie worsliip from tiiltinj; to htaudiiij; at siti;i;inj;, am IV '<« Ktamlinj; to Icnceling at prayer, that tlio ScBsioD do conseut to parties adopting the propotied ultcratllunn, or the poHitiou lierotoforu used and observed." The object of tliis Circular is to correct statements niado, m to tho result of the voting of the Congregation on tlio proposed change of poHturc during tlio Worship in .St. Andrew's Church, and to show that these Statements were fur from being eorroet. To .stand at I'rayor was, and is now, the rule of our Churcli, tho abo vo resolution merely relaxes this rule in tho case of those who wish to kneel. It was declared, on a recent occasion, by tho Moderator of the Session, Rev. Gavin Lang, that to sit at prayer was MOST IINSKEMLY. — Judge ibr yoursielvcs, bo MEN. With these remarks, I am content to leave tho matter in tlie hands of tiio Congregation. (Signed) JAMES JOHNSTON. N, B. — Sealed Boies, not " Closed Boxes," was the language of the Pastoral. NOTE. — The \otf« of tho Elders is ascertained on tho evening of Sunday, IHh April, yihcu the sealed boxes were opened, w* as follows : AGREEABLE. J-.MES S. Hunter, Joseph Hickson, Ja.mes MiTcirEtx, John li. Morris. OPPOSED. Wm. Ewinq, I James Drum.mond, George Graham, | .)as. Johnston, James R. Reekie, opposed to kneeling at prayer though not opposed to standing at singing, Jfidifferent.^MvtHQO Ramsav, jN'p votes from James Burns, or Huan BRODii:. ■"waga I iiiiM 111 imm" .'LWi.!!ilW '^;->>:',i.vi*»»»;t )f p(i.«>uro, wliilo in iinouslj resolved :— bio" to iillt'rini» tin* okncL'lingat prayer, u puxitioa liurutofuro the result of the