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A 
 
 
 PRESBYTERY OF SYDNEY 
 
 m. 
 SYNOD OF THE MARITIME PROVINCES. 
 
 C-A^SE IPOK. THE I=R.BSBYTEK.Y. 
 
 This ixppeal embraces the decisions of the Synod of the Maritime Provinces upon 
 a reference from the Presbytery of Sydney and upon four appeals taken ag<imst 
 decisions of the Presbytery by the Rev. D. Sutherland, minister ' Gabarus. For 
 the sako of brevity and for the purposes of reference, we state our case in short 
 numbered paragraphs. 
 
 1. The history of the case is briefly this : — a. In the spring and summer of 1879 
 there were rumours widely spread and generally credited charging Mr. Sutherland 
 with irregularity in the election and ordination of elders, in nominating them himself, 
 not submitting the list of nominees for election, and requiring in their ordination a 
 vow of steadfastness to himself in all cases, and other such infringements upon the 
 rights of the Church and the cause of Truth, and these rumours had strong presump- 
 tion of truth in the well-known cliaracter and history of Mr. Sutherland. The 
 Presbytery, sympathising with a brother in his position, refrained from noticing these 
 charges until the Session of Gabarus, having returned one of these newly appointed 
 elders as its representative to Presbytery, forced this Court to act in self-defence, and 
 an investigation of the manner of election and ordination of said elders was insti- 
 tuted. 6. Other complaints were also widely circulated against Mr. Sutherland, 
 whereby the cause of truth and Presbyterianism suffered injury, and some of these 
 also were force<i upon the attention of Presbytery by a petition signed by 47 persons 
 representing a large proportion of the small congregation of Gabarus. Learning that 
 charges were lodged against him, Mr. Sutherland, manifestly designing to turn the 
 edge of public censure from himself, brought charges before his Session against some 
 of the petitioners and the ministers of his Presbytery, besides trying, in other ways, 
 to hinder the administration of justice. See Sec. 8, «, 6. c. After the examination 
 of many witnesses, and prayerful deliberation, the Presbytery found all the charges, 
 except the fourth, fully proven, and the fourth proven in part. From this decision 
 there was no appeal, and, consequently, it must stand as the judicial finding of the 
 competent court. The Presbytery might now proceed to final action, but, because cf 
 tenderness in dealing with a brother, they referred the case to the Synod for final 
 judgement. 
 
 / 
 
2. a. The J.ct of re/erenci' is sufficiently plain : " The Presbytery, having adopted 
 the report of the Committee in the ( Jabiirua case, resolved at this stage to refer the 
 case, for final judgment, to the Synod." The Synod, however, instead of heeding the 
 matter referred, reviewed the findings of Presbytery, against which there was no 
 appeal. For such a course the Synod has neither law nor precedent, and cites neither. 
 Compare Constitution and Procedure of the Presbyterian Church in Canada, 114: — 
 "The higher Court, after iniiuiring into: (1) The regularity of the proceedings 
 minuted ; and (2) the correctness of the record, orders the record to be attested, with 
 or without notes. When necessary it gives instruction or admonition to the lower 
 Court ; but a judicial sentence shall not he, reversed by such action." And 121 : " The 
 higher Court considers, first, if the reference is in proper form ; and, secondly, if there 
 is ground for making it. If it is informal, or appears to be unnecessary, it is dis- 
 missed ; if not, it is sustained. If the reference be sustained, the higher Court hears 
 the whole case, and decides it or sends it back to the lower Court with instructions." 
 It cannot be suj)pose(l that the words " tlie loholec ase " in the last sentence are to be 
 taken absolutely, foi this rule ins regard to all kinds of references, and a reference 
 luay be for advice upon some particular point (Constitution and Procedure, 119,) in 
 which case it would be unfair to the lower and burdensome to the superior court that 
 the latter shouia be required to hear the whole case, the smallest part of which only 
 may have been referred for advice. The words must, therefore, be understood as 
 qualified by the context and include only matters concerning, included in, or depend- 
 ing upon the point referred. Otherwise the sentence : " It \z the duty of the lower 
 court to exercise, as far as possible, its own judgement before making the reference," 
 (Constit. and Proced., 119,) is a snare to all the lower courts of the Church. In all 
 the law of our (Jhurch and practice of our ecclesiastical courts there is no rule or 
 precedent to the effect that a superior court may, of its own motion, reverse a finding 
 of a lower court from which there is no appeal. On the other hand, the Synod of the 
 Maritime Provinces having, in 1877, as in 1880, reversed a decision of the Presbytery 
 of Sydney from which there had been no appeal taken, the General Assembly, on 
 appeal, re-affirmed the decision of Presbytery. See Mimites of Assembly, 1878, page 
 31. b. The Synod gave decision in the case referred and yet neither sustained nor 
 dismissed the reference, c. The Synod took action — handed the case over to a com- 
 mittee — before the reference was stated to the court, d. The cr mmittee on the cases 
 from Sydney Presbyterv had proceeded very far in all the cases before the Presbytery's 
 Commissioner was present. 
 
 3. From the Synod's decision, reviewing and reversing the findings of Presby- 
 tery from which no appeal had been taken, Mr. Gordon, in name of his Presbytery, 
 appealed to the General Assembly, a. To justify its own ?tion and in answer to Mr. 
 Gordon's reasons of appeal, the Synod says : " The findiL^,a of the Committee of the 
 Presbytery of Sydney, as adopted by that Presbytery were submitted to the Synod, 
 as it appeared to the Synod, not merely as a basis for action by the Synod, but for the 
 purpose of being reviewed as a step to action by the Synod." The Synod must have 
 thought the I'resbytery very stupid, indeed, when it deemed the latter capable of 
 performing such a foolish, cringing act. At the same time, it must be remembered 
 that the act of reference was plain, and that the Presbytery's commissioner, both 
 before the Committee and in open Synod, exposed the fallacy of th : Synod's position 
 with regard to the point referred, h. The four who dissentedj (see Synod's answers,) 
 were Mr. Sutherland, (the party accused, who, if the Court wished to deal harshly 
 with him, might have been deprived of vote or voice in the matter), and his elder, and 
 Mr. Murray and his elder, all of whom are accustomed to dissent, c. The Synod does 
 not reply to Mr. Gordon's third reason of appeal. Instead of pointing out the neces- 
 sity, if there were sucli, of their course, they fall back upon the position that they did 
 as they thought best in tl e matter. Tlius they acknowledge by implication that they 
 have no law, usage, preceuent or necessity for the course they adopted. 
 
4. The FIRST CHARGE brought against Mr. Sutlierland in the petition presented to 
 Presbytery was one of Sabbath desecration, specially inasmuch as he on the Lord's 
 day, in the church, after or before the close of Divine Service, made intimation that 
 a vessel had arrived or was Jibout to arrive with lumber for his manse, that he would 
 be away from home, and therefore the congregatinn would ueed to make arrangements 
 for the landing of the lumber and bringing it to the manse. That this rcDresentation 
 was correct is shown by the following exhibit of testimony : (The evidence of A* is 
 n&t of importance, because of the irregularity of his attendance at church ; that of I 
 and K is valueless, except in so far as it confirms that of the others, because of the 
 evident unwillingness with which they testify. G. was not present on the Sabbath 
 referred to.) Mr. Sutherland made an intimation on the Sabbath-day in referenc3 to 
 discharging a vessel, B, C, D, E, F, H, I, K, L, M, N. He made the intimation from 
 the pulpit, B, C, E, K, L, M, N, ( — on the floor of the church, H, I,) — before the 
 benediction B, C, D, E, — after the benediction H, I, K, L, N". He said : That the 
 vessel was coming, B, E, H, I, L, M, N : with lumber for the manse, B, E, H, I, M, N ; 
 the congregation must arrange to take the lumber off the vessel, C, E, H, I, K, L, M, 
 N, and haul it to the manse, E ; and that he had to leave home, H, I, K, L, M, N. 
 John McLean, elder, then asked if they would take horses, B, C, D, E, F, I, K, L, M, N ; 
 Mr. Sutherland replied. Be quiet, C, we will not talk of such things now, B, D, E, F, 
 I, K, L, M, N. He also asked the elders and trustees to meet in the vestry imme- 
 diately to make arrangements for the work, B, D, E, (he did not ask them II, I, K, L, N.) 
 " We met in the vestry, trustees and elders, and considered how we might discharge 
 the vessel and bring up the lumber. Mr. S. was out and in with us. We were not con- 
 sulting with him in the arrangements. We made arrangements and Mr. S. told me I 
 was to have charge of the arrangements in his absence," B. The trustees and elders 
 did not meet, H, I, L. The trustees and elders were asked on other Sabbaths to con- 
 sult about scantling, digging cellar, &c., B. Mr. Sutherlau'l opoke of scantling, &c., 
 on other Sabbaths, E, F. " A Sabbath after (that first spoken of,) Mr. Sutherland 
 said from the pulpit. Let the people come with their horses and haul the lumber up 
 to the house. John McLeod said they had not food for the horses. Duncan Morrison 
 said if they had no hay they had oats. On this second Sabbath he n ain told the 
 trustees and elders to remain after the service to make arrangements iu carrying this 
 out," E. It was not his custom to make such intiraatiDns, H, I, N, (but N, was not 
 regular in his attendance at church.) 
 
 5a. The finding of the Presbytery, based upon the above evidence is as follows 
 (from report of Committee adopted by Presbytery) : — '• With reference to the charge of 
 Sabbath desecration, your Committee disapprove of the intimation regarding the un- 
 loading of the vessel, which your Committee regard as proven, as inconsistent with the 
 solemn services of the sanctuary, and censurable because (1) of the example of a minis- 
 ter in speaking of worldly matters on the Sabbath, and (2) the great amount of thinking 
 and speaking of worldly matters such intimation would likely cause amongst the con- 
 gregation." 6. Unwarrantably reviewing the above finding, the Synod gives the fol- 
 lowing judgment : — " That the conflicting character of the evidence preferred with 
 reference to the charge of Sabbath desecration against the Rev. D. Sutherland, dis- 
 ables the Committee from determining to what extent this charge can be pressed. 
 But suflRcient remains to show that Mr. Sutherland cannot be fully exonerated from 
 somewhat of impropriety in referring as he did to secular matters on the Lord's 
 Day, and accordingly, in the opinion of the Committee, the Synod should join 
 him to exercise due discretion in this respect hereafter." c. Testimony in winch a 
 "conflicting character" appears less than in the above (§4) would be hard to re- 
 ceive from an equal number of witnesses upon a kindred subject. The Synod was 
 not in a position to weigh conflicting evidence, and therefore ought not to couch the 
 
 * See Appendix A,— List of witncBses. 
 
 I 
 
I 
 
 finding of tno Presbytery, d. This decision of the Synod, and es])ecially its designa- 
 tion of a breach of the Divine law by the euphemistic " somewhat of impropriety," 
 has weakened the hands of members of Presbytery who have to cor'tend for the 
 sanctity of the Sabbath against Utilitarianism. 
 
 <6a. The second comi'Laint made against Mr. Sutherland by the petitioners was 
 that he had left them for many Sabbaths for the last two or three years without any 
 service ; and that he had been going without their permission or that of the Presby- 
 tery to preach at Loch Lomond, where there was a minister of our church already 
 settled, thus keeping up a division tliere. h. This charge has not been denied by 
 Mr. Sutherland or his witnesses. The Presbytery, therefore, found " that Mr. 
 Sutherland acted irregularly (1) in dividing his time between his own congregation 
 and another without the leave of his Presbytery ; (2) in going to a congregation be- 
 longing to a sister clmrch without the leave of the Presbytery of that Clinrch in whose 
 bounds the ".ongregation is ; and (3) in going to such church in tlie immediate 
 neighbourhood of a brother minister's congregation." The Synod determined that 
 Mr. Sutherland committed no irregularity in this matter, c. This case embraces a very 
 important question of ecclesiastical law : Are ministers allowed without the sanction 
 of Presbytery to give a definite proportion of their time to congregations or stations 
 other than those over which they have been placed by the Church, to the detriment 
 of the latter ? An affirmative answer to this question would appear as ridiculous in 
 Presbyterianism as a negative in Congregationalism. 
 
 7a. The third charge was more serious than the second, viz. : that Mr. Suther- 
 land had deprived the petitioners of their pews, and had given said pews to others 
 who had no right to them. The Presbytery were glad to find this charge not proven 
 with regard to the petitioners themselves ; but the evidence showed that he unjustly 
 deprived one Alexander McDonald of his pew. There was an appeal taken upon the 
 further order that the pew be restored to McDonald, but against the decision of 
 Pjresbytery that the minister of Gabarus has been guilty of a tyrannical abuse of his 
 office in this matter, there was no appeal, h. Exhibit of Testimony : — McDonald 
 owned a pew in Gabarus church (C, D, E, G, H, I, N), and paid for it (A, H, I, K, 
 M, N) ; Mr. Sutherland took it from him (A, B, F,) and gave it to Donald Mclntyre 
 (A, B, C, D, G, N). Donald Mclntyre has it (M). McDonald lost his right to it by 
 nonresidence ; Mr. S. did not ^ake it (K). " I cannot tell whether he (Mr. S.) did it, (i.e. 
 take the pew and give it to McL) himself, or by the concurrence of the session," (A*) 
 " Mr. S. offered my pew to Hector McKinnon in my own presence," (E). 
 
 8. The Synod charges the Presbytery with acting " toward Mr. Sutherland, alike 
 in the conduct of " this " case, and in their findings tliere anent with a degree of harsh- 
 ness not a little reprehensible." That the Presbytery had many provocations to harsh- 
 ness from Mr. Sutherland, and that at the same time it acted towards him with the greatest 
 leniency and long-suffering, will be admitted by any candid reader of the record of the 
 case. As specimens of Mr. Sutherland's conduct we give the following : a. " At last 
 meeting the Commissioners from Gabarus who presented a petition complaining of the 
 state of matters in that congregation were instructed to send their petition" to the 
 Presbytery through the session. Koderick McLean, Esq., and Philip McDonald, elder 
 and trustee, stated that they enclosed it to the Eev. Mr. Sutherland, Moderator of 
 Session, with a written request to transmit it tlirough session to the first meeting of 
 Presbytery, and delivered the package to Mr. John McCormick, elder, who fowarded 
 it to Mr. Sutherland. Mr. Sutherland, as Moderator of Session, being asked whether 
 the Session of Gabarus had the aforesaid petiiion before them, answered that no peti- 
 tion was presented to the Session. On being pressed for a decided answer, he said 
 there was a paper containing falsehoods which was allowed to lie on the table of Session 
 at Gabarus. It was now manifest that the petition was not transmitted by the Session 
 • Mr. S. had not the concurrence of tlie Peasion. The elders concurred in McDonald's petition. 
 
5 
 
 '^f t.ie : 
 
 i db. rvi . 
 
 to the Presbytery, and that the desi'^n was to strangle it. The Clerk having stated 
 that a duplicate copy was handed hira, it was moved and carried, that in the circum- 
 stances the said copy should be substituted for the original." After some further delay, 
 ■"Mr. Sutherland presented the original petition. The Presbytery consideiad such 
 conduct on the part of Mr. Sutherland exceedingly strange and even censurable, inas- 
 much as he had cue petition in his possession while he trifled v^ith the court, declaring 
 that he knew nothing about i: and that it was laid on the table of the session of 
 Oabarus." See Min. of Preshy. Sept. 10, 1879. h. Mr. Sutherland at the same meeting 
 presented a petition as from the Session at (xabarus, to which were signed the names 
 of John McLean and John McCormick, eiders, who, subsequently on oath, testified that 
 they were at no meeting of Session at which charges against Dr. McLeod (tlie subject of 
 the peti ion) were mentioned, had no knowledge of. the petition, and if their names 
 were to it, they were not subscribed by tlieir hand or authority. The names appear 
 to be in Mr. Sutherland's handwriting, and are witnessed by his initials. See also 
 postea, sec. 14, c. d. 
 
 9 a. The examination of witnesses who appeared on behalf of and against the 
 complainants, upon the matter of McDonald's pew, was not " unwarrantable," as the 
 Synod aftirniG. The Presbytery had two petitions before it ; the one special having 
 reference to McDonald'." pew alone, signed by McDonald, and endorsed as truthful 
 and concurred 'n 
 tion, presenter' u 
 signed by f 
 Mr. Suthe' 
 bers of the ■ 
 both were s 
 them at th. 
 McDonai'' " '. 
 of the sale ol" 
 
 Hector McKinnon, who bougr*: hi' faviu, and intended to take his place in the sup- 
 port of ordinances, from whicli l\e was driven by Mr. Sutherland's conduct. Mr. S. 
 in depriving McDonald of the pew, deprived McKinnon of the opportunity of pur- 
 chasing it. McKinnon signed the general petition, and thus the Presbytery was forced 
 to notice the McDonald pew case in examining witnesses on the general petition. 
 c. The Synod's action in condemning in such strong language and so repeatedly the 
 conduct of the Presbyte' v, against which there was not a dissenting voice in the 
 lower court, even from tue parties interested, is more " unwarrantable," than that con- 
 demned, d. So officiously careful is the Synod to show the Presbytery the error of 
 their ways that it three times orders them to destroy " the whole of the minutes of the 
 procedure l)earing upon this case," whicl; minutes extend to the length of 59 words, 
 including a record of an appeal and a dissent. 
 
 10 «. The fourth complaint was that Mr. Sutherland had taken into his own hands 
 the management of congregational affairs to the extent of turning awav the old trus- 
 tees and appointing new ones. h. Exhibit of Evidcnrx : Mr. S. turned out Mr. McLean 
 from the trusteeship, E, F, G ; a confused vote was taken, E, F ; new trustees were 
 appointed (April 1879), A, D, H, K, N, O ; (to take the place of some who died, H,) 
 None of the old trustees liad died. K; ^che old trustees were not consulted in the 
 appointment of successors, R ; Mr. Sutherland appointed said new trustees. A, C, E, 
 K, N, 0, (he did not, M) ; he nominated them, B, C, D, K ; there was no time between 
 nomination and votmg, A ; a confused vote was taken. A, K, N ; the congregation was 
 not aware tliey were to elect new trustees until the meeting of April 10th or 11th, 
 B, C. (R. McLean was never a trustee, H.) 
 
 * It will be observed that although H, I, K,M. X, sonietinie.s diaw on imagination, suoh attempt 
 is generally rebutted by one of themselves. None of t le oM trustees had ilied letoreeven the closing of 
 the ca.se before Presbvterv. 
 
 "'1 the elders but one, avA all the trustees of Gabarus congrega- 
 vtery several weeks before the other which was general, and 
 .»er'=, i)ft«'ees, communicants and adherents. The first charged 
 J- cD -^u,>A of his pew ; the second, with depriving mem- 
 Drrr^erty, viz. : pews in the church at Gabarus. Since 
 ■iJ jic't be very " reprehensible " to take evidence on 
 (.'■■.^ \ ♦ ♦■'le two petitions are still more closely related. 
 . ..ad *"! ■ r.c )oan(?<^ of the congregation, had settled tlie preliminaries 
 ins pes. bef^-e Mr. Sutlierland was settled at Gabarus (1875) to Mr. 
 
llrt. The civil law of Nova Scotia, when any deed of trust, made for the benefit 
 of a conuret^ation, does not specify the manner in which vacancies in the trust are to 
 be filled, prescribes tiie following order to lie taken: " When a vacancy sliall occur 
 by reason of the death, removal or resignation or displacement of any trustees, it shail 
 be lawful for the meml)ers of the churcli or cungregation, from time to time, as occa- 
 sion shall recjuire, at any meeting convened, after public notice tliereof from the pulpit of 
 the church, for two consecutive Sundays preceding such meeting, or by printecl notices 
 posted in one or more conspicuous places in or al)out the house of jiulilic worship of 
 such church or congregation for such two preceding Sundays, which published notices 
 shall state the place and hour of such meeting, and the object for which the same is 
 convened, l)y any resolution passed by not less than two-thirds of the members present 
 at such meeting, to appoint one or more triistees, in phice of any trustees dying, re- 
 moving, resigning, (jr being dis])laced, as aforesaid, — i rovid<'d always that a copy of 
 said resolution, verified under the oath, liefore a . Justice of the Peace, of the Pastor or 
 Clerk, for the time being, oi such church or congregation, shall be fyleil wich the 
 C'lerk of the Peace for the County, within one month from tlie passing of sucli resolu- 
 tion. In default of the fvling of such resolution, all acts done thereunder shall be 
 void and of none effect." Ecviscd Statud's of X. S., IS7'3, ■page 594. Thus without 
 authority of the congregation, who knew nothing of the necessity or election of new 
 trustees, or of his Presbytery, and in direct contravention of the laws of the Province, 
 Mr. S, appointed these new trustees, invading the office of tlie old trustees without 
 any other necessity than the desire to remove honest and higiily -honored men who 
 would not do his bidding.* Antl yet the Synod says that no procjf is given to justify 
 the charge of irregularity on ins part. b. The Synod says that " from the evidence it 
 did not a[)pear that any person in the congregation was injured by the mode of election 
 carried on liy Mr. .Sutherland." Forty-seven jjcrsons in the congregation cry out that 
 they are injured ! The old trustees, whose office has been invailed and wlifjse power 
 is usurped by others, cry out that they are injured ! I The trustees are reduced from 
 the status of a body wliuse acts are legal and have all the force of law to that of one 
 whose transactions are null and void from the beginning ! ! 1 The Synod, however, de- 
 crees that not only is there no injury, there is not the appearance of injur'. If the eyes 
 of that court were not turned away in another direction, it would surelj' discern an 
 appearance and a reality of injury here. 
 
 12(1. The fifth and last compl.mnt embodied in the petition was that Mr. 
 Sutherland had assaulted Eoderic McLean, Esq., [at a meeting of the congregation ]> 
 and had caused bodily injury both to McLean and another man. Exhibit of Testimony : 
 Mr. Sutherland assaulted McLean, B, E ; lie did not, H, K, L, M, N. Mr. S. was in 
 the Precentor's desk as chairman, E, F, M, and left his seat and came tlown to the 
 passage in front, E, L, M, when McLean was al)Out to pass, B, C, D, E, I. McLean 
 attempted to jiass, D, G, H, L, M, O ; ]\Ir. S. said, " Young men, cause the man to 
 sit down," I, K, M. Mr. S. then laid his hand on jMcLean's breast, 1), G, laying hold 
 of him by the coat or vest, C, E. G. Something occurred to throw McLean into tlie 
 pew in which Capt. McLeod was, D, H, I, L, M ; Mr. Sutherland pushed McLean 
 on Capt. McLeod, A, B, C, D, E, G. Capt. McLeod cried out, " Don't murder me," 
 A, B, C, E, F, G, L. Capt. McLeod was hurt, A. McLean was hurt, K Mrs. Sutherland 
 rose, B, C, 1), E, L, and cried out, " Papa, papa, B, I), E, L, N, what are you doing ? D, E ; 
 let the man alone, B, E. Capt. McLeod, Junr., cried out, B, I), E, G, L, N, O, "Clear out, 
 L, N, O, such proceedings were never seen," [or words to that effect], B, D, E, G, N, 0. 
 Duncan Morrison rose and said, " Mr. S., let McLean alone," B. E. John F'erguson 
 interfered, H, I. K, N. There was a great sensation in the congregation, B, C, G, I, K ; 
 several went out, B, C, D, E, G. McLean did not put his hand on Mr. S., B. 
 McLean forced himself on Mr. S., gave himself a turn and stumbled, I. McLean 
 
 'Eg. The old trustees as well a.s the old elders would not .stoop to deprive McDonald of his 
 right in his own pew. 
 
cliiiclied Mr. S., and his weij^lit caine ou no one, K. F btnt his head, K "lost his 
 sight," and O turned his hack just hefore the assault, b. Tlie Synod fnid.s that " it is 
 not clear that there was an assault at all, innch less, if there was an assault, hy whom 
 it was conjnntteil." Such a decision when laid alongside of the evidence, carri<js ito 
 own condemnation, Even the Synod itself deems "the occurrence of such facts as 
 Worthy of lieing rei)rehended.'' Jt further says, " It is to he deplored that a scene 
 such as appears to have occurred sliould have occinred upon any occasion in any cir- 
 cumstances, and, aliove all, in a churcli, and witli a minister as one of the parties 
 concerned." c. All those who spoke in tlie e.xcitemetit of the moment, even Mrs. 
 Sutherland herself, addressetl Mr. Sutherlaml as the aggressor. 
 
 \?>a. Mr. Sutheriind's FlliST aI'PKAl from the Presbytery of Sydney to the Synod 
 was taken against the resolution to aUow* the commission of Mr. Alexander 
 McDonald, as representative ehler, lie on the table, until an invescigation had been 
 made of the rumors regarding his election. His reasons of a))peal are too iorg for 
 insertion, and are gronndeil upon tlie three assumptions (1) tiiat the Presl)ytery must 
 receive the commissions of Sessions upon their presentation, notwithstanding >iny 
 knowledge mendiers may have with regard to the ordination or non-ordination of the 
 parties commissioned ; (2) that the Presbytery rejected the commission in question ; 
 (3) that it was rejected because of a fault in McDonald's character. We are sorry to 
 find that the Synod not only approves of these reason.s, but repeats the statements that 
 the Presbytery rejected tlie commission and supported the rejection by a " a /rami and 
 rumors alleged against hi,? character." These two have been repeatedly denied, and 
 their falsehood can be seen from the recf)rd. It has been soid that the meaning of the 
 word fuhia countenances the latter; Imt fortunately the signiHcation (;f words does 
 not depend on the prejudices of men ; a fuma is a rumour which specifies some par- 
 ticular sin or sins, is widely spread, generally believed, and has strong presumption 
 of trutii — Coiistit. and Proccd. 248. That the rumors u])on which the Piesbytery 
 felt itself bound to act fulfilled these conditions. See above, § 1«. The sivis were 
 charged in i\\Qfaiva not in ]\Ir. ilc Donald, but in Mr. Sutherland, h. If the Vener- 
 able the General Assembly declare it to be the law of the Church that a Presbytery 
 is bound under all circumstances, notwithstanding the existence of grave complaints, 
 to receive an elder's commission without inquiry as to the truth or untruth of such 
 complaints, the Presbytery has nothing to say, but must bow to the decision. The 
 Synod did not however pretend to give a decision in accordance with the law of the 
 church. In answer to Air. Gordon's reason : " By the decision a Presbytery has no 
 protection from an irregularly ordained or an unordained person being a member of 
 court, if he is commissioned by Session," the Synod replies: "Presbytery may justly 
 take for granted that those commissioned by the Sessions under its jurisdiction are 
 regularly ordained." There in no appeal to ecclesiastical law or usage, 
 
 14. Second Appe.vl — a. 'Slv. Sutherland read in Presbytery the following paper 
 and then handed it over to the Clerk of Presbytery, stating, at the same time, that 
 the session of Gabarus had taken evidence in the matter : " Sydney, 1879. I hereby 
 refer Dr. McLeod's conduct to ward 'j the congregation and n-.inister of (labarus, as con 
 tained in the minutes of session, to Presltytery for adjudication. By order of Kirk- 
 session, D. Sutherland, Mod'r. To the Clerk, to be communicated." The Presbytery 
 found that this paj)er was no reference (wliich the Synod partially concedes) and 
 dismissed it. Con><tit. and Proced., 120: " A reference, as to form, consists of an 
 extract minute of the resolution to refer, and must be accompanied with an extract 
 minute of aU proceedings in the case, and must be accompanied with all the papers 
 necessary for the proper consideration of the matter referred ; and is presented by 
 commissioners appointed for the purpose." Mr. S. appealed to Synod against this 
 decision, h. The Synod sustained the appeal and said that there is " no evidence of 
 irregularity of procedure on the part of the Session of Gabarus in submitting their com- 
 plaint to the Presbytery of Sydney." Of course not, for at the time of the appeal the 
 
8 
 
 Session had subnutted no complaint to the Presbytery, and tner" Is no use of proving 
 or disproving irregularity in an action never performed, c. But the Synod proceeds 
 farther; it enters in tlup judgment, as well as the last, into the question of reasons 
 and answers. " The reasoi.s submitted by Mr. Sutherland l)ear no marks of Ijeing 
 disrespectful in expression," says that reverend court. In his 8th reason, Mr. S. says : 
 " IJy .shirking the reference . . justice i.s burked and mutatis wM<a«c??s righteous- 
 ness is fearfully prejudiced. I hope for better things from the Synod. * I have done 
 judgment and justice ; leave me not to mine oppressors.'" Again, 10th: "In my 
 opinion the proceedings will show that tremendous tyranny was exercised by the 
 majority and that their proceedings are not valid." And yet heie there are no marlcs 
 of disrespect ' d. " The reasons submitted by Mr. Sutherland bear no mark? . . 
 of being incorrect in .statement." The "Synod actually employs those words, as can 
 be seen on page 19 of their printed minutes. (1) No paper was submitted to Pres- 
 bytery but that (juoted above, and the minute book of Gabarus Sessi^-n, of which even 
 the pages treating of the macter were not poin'ed out. Mr. S., however, says, reason 
 2nd : ' The reference contained an extract as enjoined," This is a deliberate mis- 
 statement, and the Synod's committee knew it. (2) Mr. S. further says, reason 9th : 
 " Dr. McLeod, in Presbytery, introduced these measures amid thundering threats to 
 siLspend myself, and an appeal to all present if they were all ready for that act." This 
 is not in accordance with truth bet.veen mn.n and man, aiid the fact was pointed out 
 to the Synod in the Presbytery's answers to these reasons a? follows: '• As to the 
 a.ssertion that he was threatened with suspension, &c., the truth is that he became 
 refractory and abusive and sliowed contempt of court, .so that he was freq'ioiitly called 
 to order, and, at length, when tlie business was interrupted and could not be pro- 
 ceeded with, he was informed that if he continued his offensive conduct, he would be 
 suspended." Constit. and Froccd. 308. The Presbytery pf)i.it2d out these deviations 
 froi'i truth in their answers, after much ])rovocation, not from any desire to deal 
 narshly, but witli the hope tliat Mr. Sutherland would amend his ways. «. The Synod 
 jiroceeds, " Much of what is contained in the reasons alleged by the Presbytery of 
 Sydney against this appeal is irrelevant." Keference is here made, as was pointed 
 dut by Mr. McRae, wlie i he read the report, to tiie tifth answer. "The/«m« against 
 Mr. Sutherland, which tlie Presbytery was so reluctant to take up, has now assumed 
 a tangil)le form, and must be investigated in a fair, co:istitiitioiial way. Hi? character, 
 as a minister of the Gospel, should be vindicated, il he is guiltless. This is the great 
 desire and aim of the Presbytery. Mr. S. himself sliould be the first to seek such a 
 result, and, for tlie purpose, should beg the interference of the Presbytery." This 
 has reference to the charges contained in the petition presented by a portion of 
 Mr. Sutherland's congregation, and its relevance depends upon Constit. and Proccd. 
 250: "Great caution is to be exercised in receiving accusations from any person 
 . . . who is himself under censure or process." /. In answer to Mr. Gordon's 
 reasons, the Synod says tliis appeal is dismissed. Well ! what next ? 
 
 15. TlliHU Api'Ral. — Mr. Sutherland, however, discovering that his paper was no 
 reference, and constitutionally dismissed, and thus having no hope that the Synod 
 would sustain his appeal, produced at the next meeting of Presbytery a petition to 
 which reference has been already made (sec. 8 h.) upon the same subject as the paper 
 ([uoted in sec. 14 a. Tlie Presbytery dismissed the })etitio'.i. Mr. S. appealed. The 
 Synod dismissed the appeal, but in such a manner as to call for a re-itevatiou of the 
 fact that Dr. McLeod in no way interfered with the Gabarus congregation, except in 
 so far as he on one occasion as Moderator of Presbytery had to announce to some of 
 the trustees of that congregation a decision of this Court. 
 
 IG, Fourth Appeal, a. — As has been already stated, aec. 1 a. the Presbytery 
 instituted an investigation into the mode of election and ordination of .some elders at 
 Gabarus. The Session was at first cited to appear before Presbytery to give testimony, 
 but subsequently, Mr. Sutherland having stated that the older members of Session 
 

 
 could not appear from ago atul failing health, either in Sydney or at the church at 
 (labarus, a cummission waa given to three menil)'!rs (if Presbytery to take the evidence 
 of thene older raenibcis, in conformity to Cunstit. (fe Prored. 2'jl. " When witnesses 
 cannot attend, their evidence may Ikj tiken by connnission of tho court, or through 
 anotlicr church court ; but the pu^ ties must receive notice of the time and place ap- 
 pointbd for the taking of such evidence." This commission wivj executed, and tho 
 elders also attended the nieoting of Presbyter)^. The court upon careful consideration 
 of the case found that there Wiis irreguhuity in the mode of election, but at the 
 same time agreed to sustain the ordin aion of these additional el.iers. From this 
 decision Mr. 8. appealed, antl the Synod sustained his appe.il. h. EdiilU of TcMiimny. 
 There was no meeting of session at which it wi'..s agreed to add to tlie number of 
 elders, Q, P, F. P, S ; no conversation outside of the Session with Mr. S. on the desi- 
 rability of additional elders, P ; there was no call to tho comnmnioant?) to meet to 
 elect elders, Q, K; (Mr. S. intimated such a call the Sabbath before A^ril 10th. 1879, 
 S) ; Mr. Sutherland non\inatefl the new elders, Q, P, S ; their election consisted in 
 being iiamud by Mr. Sutheuand and no one objecting, Q. No meeting of Session was 
 held between election and ordination to try the cam' ' .;es, Q. One of their ordina- 
 tion vows was that they should be faithful to the .'ster of the congregation, R. 
 c. From the above it appears that the following ruleb .. the Constit. and I'roced. were 
 not observed : 223 : " It belongs to the Session to determine when an addition 
 should be made to its number : b".*. it is competent for members of the congregation 
 to petition the Session to this effect.' 224 " Wueu .ic Sesiiou has resolved to add to 
 the number of elders, it llrst gives notice of this icsolution to the congregation, and 
 proceeds in the manner following : (l.) " A meeting of the congregation is held for 
 the purpose of nominating persons qualified to fill the office. At this meeting a list- 
 is made of the names in full of persons didy proposed. This list is then submitted 
 to all the communicants, who are required to return to tho Session on or before a fixed 
 date, the votes duly signed. At a meeting held thereafter the Session examines the 
 voting pppers, ascertains who have the highest votes, declares them elected, and orders 
 the names of the peiaons so elecued to be publicly announced. (2.) It is competent 
 for the Session to hold an election without a previous meetmg for nomination, in 
 V hich case the requisite number may ba elected by open vote, by calling the roll or 
 by ballot. (3.) It is competent for the Session to ask the members to give iu on a 
 specified day ballots duly signed, containing the names of persons to the number 
 required. The Session declares those who have the largest number of votes on examina- 
 tion of the ballots, duly elected." (Here three methods are laid down, one of which 
 must be followed ; Mr. Sutherland followed none, and violated the spirit of all of 
 them.) 224. (4). : " After the election the Session deals with the elders elect as to 
 the propriety of their accepiing office. On theii expressing their willingness to accept, 
 the Session proceeds to satisfy* itself in regard to their piety, prudence and knowledge 
 of Divine truth, of the gov ernnent and discipline of tho church, and of the' duties of the 
 office." The wisdom of these rules is apparent, an'i if there be no irregularity in ignoring 
 them, irregular procedure is a constitutional impossibility. Mr. Sutherland, though 
 present and examining the witnesses, did not prove that he had the consent of one of 
 his elders to the addition to the Session until, he nominated the three additional mem- 
 bers. The nomination and election took place t.i that stormy meeting referred to in 
 § 12. Mr. Sutherland produced no evidence, not even a minute of the meeting, to 
 show that a vote was taken on their election. If it iiad been taken, the result must 
 have been, from the confusion and excitement of both minister and people, the same 
 as in those whicli were taken : a few showing their hands upon they knew not which 
 side. d. The Synod says : " It appears . . . tiiat the action of the Presbytery 
 . . . . was even illegal, — especially in that they employed a civil magistrate to 
 take evidence on oath frona ecclesiastical officials." The Presbytery did not act 
 illegally in this, for (1) it was the practice of some of tlie uniting Churches before the 
 
10 
 
 Union to employ a civil magistrate to take evidence on oath, (2) " witnesses may be 
 examined on oath," (Constit. and Proced. 287), and no particular person is authorized 
 to administer such oath, and (3) the magistrate was present at the Commission not as 
 a civil officer but as a member of the Commission, being one of the three appointed 
 by Presbytery. 
 
 17a. The fifth appeal of Mr. Sutherland was taken against a decision of his 
 Presbytery ordering himself, Session, and Trustees to secure Mr. McDonald in his 
 right to the pew which Mr. S. had taken from him and given to D. Mclntyre. Mr. 
 McDonald, as did all the people of Gabarus, subscribed to the Church and paid for a 
 pew in it, upon the distinct understanding that the pew was to be his own property. 
 h. The Synod again attempting to cover Mr. S. by his Session, says : " The Session 
 of Gabarus was guilty of no irregularity or illegality in transferring the pew once 
 occupied by McDonald to D. Mclntyre." But the Session never did transfer the pew 
 to D. Mclntyre, unless the Session was like that of Poolewe — consisting of the 
 minister alone. Three of the /our elders of Gabarus concurred in McDonald's peti- 
 tion, and thus condemned the action of Mr. S. in this case. c. The Presbytery had 
 a perfect right to receive the said petition, for one of itc first duties is " to receive 
 and dispose of petitions." — (Constit. and Proced. 21, and compare also 104). d. The 
 Synod charges Presbytery with assuming to interfere with the action of the Session. 
 No candid reader of these pages or of the documents in the case can credit the charge. 
 6. Mr. Gordon in his reasons of appeal, says : " The Synod had more before it than 
 the judicial record." The Synod replies : " It is not correct to say that the Synod 
 had any matter before it other than what was collected by direct or legitimate infer- 
 ence from the papers submitted to the Synod by the Presbytery of Sydney. " This 
 needs a word of explanation. In a speech on the case in Presbytery, after the 
 evidence on the petition was closed, Mr. Sutherland produced a little book which he 
 said contained the rules of the congregation of Gabarus, and from which he said cer- 
 tain things might be proved, and handed it to the clerk, upon which he was asked if 
 he gave this in as part of his evidence in defence ; he replied " No." and immediately 
 asked for the return of 'he book. Members of Presbytery had no opportunity of 
 examining it. Its identity as a book referred to in the evidence was never attempted 
 to be established. At the same time Mr. Sutherland raised the minute-book of his 
 Session in his hand and laid it down again. These two books were beibre the Synod's 
 Committee. 
 
 APPENDIX A. 
 
 List of Witnesses Examined. 
 
 1. On the General Petition. 
 
 A. Capt. John McLeod. 
 
 B. Duncan Morrison. 
 
 C. Hector McKinnon. 
 
 D. Donald Arch. Munro. 
 
 E. Roderic McLean, EJeq. 
 
 F. Philip McDonald, Elder. 
 Q. Don. Mclntyr'i L's Son. 
 
 H. 
 J. 
 K. 
 L. 
 
 M. 
 
 N. 
 O. 
 
 Hugh Stewart. 
 Charles Stewart. 
 John Stewart. 
 D. Mclntyn. 
 AuguH McCorinick. 
 John FerguBHon. 
 Alexr. McLeod, Elder. 
 
 2. On the Election 40. op Elders. 
 
 F. Philip McDonald, Elder. 
 P. Nonnan McLean, ITlder. 
 Q. John McLc&n, Eider. 
 
 R. John McCormick, Elder. 
 S. Rev. D. Sutherland. 
 
11 
 
 APPENDIX B. 
 
 Decision of Synod. 
 
 At St. Andrea Church, Chatham, the twenty sixth day of May, one thousand, eight hundred and 
 eighty. 
 
 Which day the Committee appointed to consider the papers referred to the Synod by the Presby- 
 tery of Sydney met and was constituted, Sederunt. Dr. McCiilloch, Convener, Dr. PoUok, Messrs. 
 Blanchard and Lawson, and Rev. Messrs. Nicholson, Christie and Macrae, who acted as Secretary. 
 
 The Committee, having read the petition from certain parties in the Gabarus Congregation, 
 reflecting upon the character of Rev. D. Sutlierland, of Gabarus, and the finding of the Presbytery 
 of Sydney in reference to the same, proceeded to consider the evidence relating — 
 
 1 . To the charge of Sabbath desecration contained in said petitio- . After due consideration, the 
 Committee recommended the following as what, in their belief, should ue the judgment of the Synod: 
 
 That the condicting character of the evidence preferred with reference to the charge ot Sabbath 
 desecration against the Rev. D. Sutherland disables the Committee from determining to what extent 
 this charge can be pressed. But sufficient remains to shew that Mr. Sutherland cannot be fully exone- 
 rated from somewhat of impropriety, in referring as he did to secular matters on the Lord's Day, and 
 accordingly, in the opinion of the Committee, the Synod should enjoin him to exercise due discretion 
 in this respect hereafter. 
 
 2. So far as appears, Mr. Sutherland, in the opinion of this Committee, committed no irregularity 
 in going to preach, as he did at Loch Lomond, and therefore the finding of the Committee of the 
 Presbytery of Sydney on this point cannot be sustained. 
 
 3. With respect to the third charge, the opinion of the Committee based upon the evidence, is 
 verv decided, that by the introduction of the case of Alexander McDonald in connection with that of 
 the petitioner":, the Presbytery went beyond the limits of the record, and acted toward Mr. Sutherland, 
 alike in the conduct of said case and in their finding there anent, with a degree of harshness not a little 
 reprehensible. The whole of the Minutes of the procedure bearing upon this case ought, in the 
 opinion of the Committee, to be destroyed. 
 
 4. As regards the election of Trustees, from the evidence it did not appear that any person in 
 the congregation was injured by the mode of election carried out by Mr. Sutherland, and manifestly, 
 very conclusive proof would be reciuisite to justify the charge of irregularity on hie part, proof which, 
 in the judgment of the Committee, is not furnished by the record. 
 
 5. Taking a conjunct view of the evidence on this point, the Committee consider that it is not 
 clear whether tin was an assault at all, much less, if there was an assault, by whom it was com- 
 mitted It is to be deplored that a scene such as apptar.^to haveoccured should have occui red on any 
 occasion in any circumstances, and above all, in a church, and with a minister as one of the parties 
 concerned. And, witiiout detern'ining with what party the blame in this matter rests, the Committee 
 deem the occurrence of such facts as worthy of being reprehended. 
 
 CM THE APPEALS. 
 
 1 . With reference to this appeal, the Committee consider that it should be sustained. The rea- 
 sons given by the Presbytery in re[)ly to those preferred by Mr. Sutherland are utterly without force, 
 and tlie grounds alleged by him in support of his appeal against the action of the Presbytery are 
 sufficient. l\\ the opinion of the Committee, the Presbytery erred in rejecting the commission of Mr. 
 McDonald, — the n)ore that they refused to receive him for one reason, alleged irregularity in the 
 mode of his election to office,— and supported their refusal vUh reasons of a quite diflTerent character, 
 a fama and rumours alleged against his character. 
 
 2. With regard to this appeal, the Committee find no evidence of irregularity of procedure on 
 the part of the Session of Gabarus, in submitting their complaint to the Presbytery of Sydney against 
 the alleged interference of Dr. McLeod, in the affairs of the congregation of Gabarus. The reasons 
 submitted by Mr. Sutherland bear no marks of being disrespectful in expression, nor of being incor- 
 rect in statement. Much of what is contained in the reasons alleged by the Presbytery of Sydney 
 against this appeal is irrelevant. And, therefore, on the whole, the Committee recommend that this 
 appeal be sustained. 
 
 3. The Committee find that the charge of interference on the [part of Dr. MeLeod, acting 
 separately from the Presbytery, does not appear to be sustained. At the same time, since, in their 
 opinion, the introduction of the McDonald pew case into that basetl upon the petition was altogether 
 unwarrantable. Thev consider that, in dismissing this appeal, it should be dismissed simply as part 
 of the whole case with which it is connected, the minutes of which they have, in a previous finding, 
 enjoined the Presbytery to destroy. 
 
o' 
 
 12 
 
 4. Ah to this appeal, it apjK-ars to the Conmiilteo that the action of the Presbytery, with refer 
 ence to the wliole Hiityect of election of eltlern in Gabarim congregation was unwarrantable, and even 
 Illegal,— esiK'cially in that they employed a civil magistrate to take evidence on oath 'rom 
 cccleBia,stical ofliuials. No ground appears why the PreHbytery Hhould have entered at all upon the 
 investigation which they instituted as to this election ; no pnjof is furnished that any grave irregularity 
 was committed, or that any cue complained. The Committee, therefore, recommend that the appeal 
 be suetained, and that the minutes bearing ui)on this case be destroyed. 
 
 The Committee sustain this appeal also, 
 
 resoiight in the petition to him. And the minutes bearing upon this whole case of the McDonald 
 petition and pew, oufiit to be, a':;3 are hereby en'oined to be destroyed. 
 
 destroyed. 
 
 APPENDIX 0. 
 
 I. Reasons of Ai'I'kai. from amove Decision anent toe Refekenoe. 
 
 I jirotest and ajipeal on behalf of the Presbytery of Sydney against such part of the decision of 
 Synod as reviews the findings of Presbytery of Sydney in tlie case referred, because— 
 
 1 . These findings constitute the foundation of the reference. 
 
 2. From tliese findings there was no complaint or appeal. 
 
 ;{. Tiie decision complained of unnecessarily censures the Presbvtery, annulling their decisions. 
 Tiie reference was not for the confirmation or annulling of these findings", but to obtain a final judgement 
 upon the case. 
 
 G. LAWSON GORDON. 
 
 II. — Synod's Answers to ahove Reasons. 
 
 1 . The findings of the Committee of the Presbytery of Sydney, as adopted by that Presbytery, were 
 submitted to the Synod, as it appeared to the Synod, not merely as a basis for action by the Synod, 
 but lor the purpose of being reviewed as a step to action by the Synod, 
 
 2. Froii these findings,/oMr meinbers out of a court of 7iine dissented. 
 
 3. The Committee of Synod most carefully reviewed the whole of the voluminous evidence and 
 other papers submitted to it ; and the findings arrived at on the whole case, and on each point compos- 
 ing it, were based upon this careful review, and were unanimous. 
 
 III.— KeASONS of Afl'EAL FROM SvNOD's DECISION ANENT Mr. SUTHERLAND'S APPEALS. 
 
 I protest and apjwal on behalf of the Presbytety of Sydney from the decision of Synotl in the several 
 matters of appeal Irom the Presbytery of Sydney, because — 
 
 1. Hy the decision a Presbytery has no protection from an irregularly ordained or an unordained 
 person being a member of court if he is commissioned by a Session. 
 
 2. The paper handed in by Mr. Sutherland was no reference in form or in sense, and the Session 
 lias no right to take evidence against a iiUiiistcr. 
 
 3. The Synod liad more before it than the judicial record, i.e. matters not put in in evidence 
 before the Presbytery. 
 
 G. LAWSON GORDON. 
 IV.— Synod's Answers to above Keasons. 
 
 _ _ 1. Presbytery may justly take for granted that those commissioned by the Sessions under its 
 jurisdiction are regularly ordained. In the particular case in question, the ordination of the elders 
 of the Session of Gabarus was ultimately admitte.l by the Presbytery of Sydney, and in the view of 
 the Synoii was hilly sustaincil by the evidence admitted in the case. 
 
 2. Allowing for the sake of argument that there was informalifv in the mere mo<le of the refei- 
 cnce from the Session of Gabarus to the Presbytery of Sy.hiey aflecting the conduct of Dr. McLeod 
 (which howeverisonly partially conceded), it did not api^ar to the Synod that the Session took 
 evi.lence on the charge agamst 1 )r,McLeo(, beyond the point requisite (o sustain the members of that 
 Session in making what was intended by them as a complaint. But inasmuch as the appeal to which 
 tins person refers was dismissed by the Synod, it seems utterly uncalled for and unnecessary for M;- 
 Gordon to continue discussion upon a jioint in itself of the very smallest importance. 
 
 3. It ; , not correct to say that the Synod had any matter before it other than what was collected 
 by direct or legitimate inference from the papers submitted to the Synod by the Presbytery of Sydney.