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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.

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.

'^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

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

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.

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.

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.

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.