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 1 2 3 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
L 
 
IN THE MATTER 
 
 1'Ll>o 
 
 OF 
 
 THE PROYIXCIAL SYXOD 
 
 0:P OJL.ISTJ^^'DJl.. 
 
 FURTHER OPINION 
 
 OF 
 
 ADAM CROOKS, Esq., Q, C, AND E. BLAKE, Esq. 
 
 %0i^^^r^r%r%r^*^*^* 
 
 TOriONT():-18r4. 
 
 *• » . 
 
'=l^^<^'b\ 
 
 
 SE? : ib55 ^ V^^ 
 
FURTHER OPINm', &c. 
 
 To THE KwHT KF.vE«r.ND TUF. LoRU BisuoP or 
 
 Your Lora.Wpl>»B .V.rcctcd our altcutiou to a Civcuhr 
 Jte, f^m the Lord m«h«,,«f Montreal and > ^tropo »" 
 to the Bbhop, Clergy and ^-'V.« ;;- ^'/^ J^^j'; ^f. 
 ,„y of answer ''-"J.;^ j ,«'^ L'/o^^^As^cnbly, tho 
 
 I'r.'" m „tc, tlrt^ r nions of Strachan BctUno, 
 Mctropoht m .ets toi t 1 ^^ ^^ ^^,^^^^^^ ^,^^ 
 
 f/'r ™ \t "ubjcct; and your Lordship ha, 
 
 l^:iJt stu. : for your guUUnco whether Iron, these 
 
 nmnions wc urc led to modify our owu. 
 
 T„ der to contrast and examine the positions assumed 
 
 TZT^Kc m-opose to restate our siiort opinion, and 
 
 Z:^M^-^^^^'' bothe views of Messr. 
 
 bIu^ and Cameron respectively. Our opnuon was aB 
 
 ^"^ZlZ.c considered the papers and staten.ents laid b^^^^^ 
 «us by the Bishop ot- rnu-on, ^-m vvh.ch a ^1!^^^^^^,^ 
 "other things, that the Bishop ot ^y^f;,';\^'^^^'i^.^y',o\ivoke(i and 
 »by virtue of Her Majesty s ^'•^'''^''^'^^^^^^ or Goueral 
 
 "presided over the meetings ^^ ^ ^. r.tnJdTand iuai tlie 
 .cissemblies which have ^a^ken placu Canada,^ a^^^^ ^^,^^^ 
 
 "action of the Assembly ^^^f^.^^^^^^^^^^ .^^umption that this 
 «. participated therein pi-oceedcd ^Von i^^ ^ 3u„ip\ion materially 
 "ktent was legal and ^'1^ f ' ^^,'J,t^,' ^ J',^ matter, 
 
 "inlluenced the action of the Diocest ot iu on ^^^ 
 
 *' It appears also that under judicial ^^e'-^^' ^^^ ™\ ^f ^i.e 
 
 " nor are they, under the circumstances, legal oi Innan „ 
 ♦' Diocese. 
 
t 
 
 •> "In onliT to the inoncr and Ugal <»r<,'aui/ation of the 
 « O'enerftl Asscnvblv, Jt is necessary that nil the Dioceses m 
 « Cana(hi shouM eoncur in a ticw organi/atiun thci-eot. ^ 
 
 3 « The ret'ii^iU of ary one Diocese to coueur in tlic orgiinization 
 ^'ofthe rronenil AsseJu'l.ly, would vender it impossible to em-et 
 "such an urgani/atlon under the rrovineml Act; though ul 
 "eonrse a voluntary association, in<lei)eu<U>ntly of the Act, may 
 "be forined hy tl»e miMnher^ of any one or more ot the IJioceses. 
 
 Mr. Bethuno U ol' oi.inion, (1) that the 3rotropolitun 
 '•had a perfectly leaal rluht to convoke and rrcsidc over 
 "the Assembly," and that tlion'forc its or.iranization is 
 valid and binding on all parties. 
 
 (2 ) That the DIoJcse of Jluron, by sending delcsralos {<» 
 the Synods, and by the action of those delegates at the 
 Synods, acquiesced mid voncurrcd witli all the other 
 Dioceses in the organization which was effected, and that 
 this acquiescence and concurrence hinds that Diocese and 
 confirms the organimtion, even though the ^letropolitan 
 had no right to convoke or i>rcside over the Synod. 
 
 Mr. Cameron is of opinion J) that " the Letters Patent 
 did not confer any right on the Metropolitan to convoke the 
 first Provincial Synod, although they professed to do so," 
 and that various other powers and authorities, and the 
 coercive jurisdiction which the Loiters professed to confer 
 upon the Metropolitan were not and coidd not ].e validly 
 80 conferred. 
 
 (2.) That the xMetropolitan might properly call together 
 the Delegates from the different Dioceses, and that, when 
 they did assemble in pursuance of that call, they found a 
 properly constituted Synod, wliethcr they were legally 
 convoked or not, us hj/ common consent they proceeded to 
 business, and no ohjection was made, either to the manner, 
 time or place of their asscmhly, and their acts are bindmg 
 on the members of the Church in the several Dioceses 
 under the Synod law ; and that the Diocese of Huron, hj 
 its action in sendinff delegates to, and hj the action of 
 those delegates in Synod, is precluded from ohjecting either 
 to the validity of the appointment of the 3Ietropulitan, or 
 to the legality of the proceedings of Synod, and is therefore 
 bound by those proceedings, notwiUistanding that the 
 Metropolitan had not powder to convoke the first Synod. 
 
/lation of the 
 Dioceses in 
 
 iorr^miization 
 
 ;ib!c to etfcrt 
 
 l\ tl»v»H<jU of 
 
 Mu» Art, miiy 
 the !>ioce.>e.s." 
 
 ^fotropolitaii 
 preside over 
 ranization is 
 
 (lek'iralos %<» 
 aates at the 
 I the otlur 
 ;d, and that 
 Diocese^ and 
 \Ietropolitan 
 'nod. 
 
 ittors l*atont 
 ) convoke the 
 ;d to do so,'* 
 ies, and the 
 cd to confer 
 t ]>e validly 
 
 iiixW together 
 I that, when 
 hey found a 
 were legally 
 proceeded fo 
 the manner, 
 3 are binding 
 rai Dioceses 
 f Huron, hi/ 
 he action of 
 jecting either 
 [roijulitan, or 
 i is therefore; 
 IS that the 
 •st Synod. 
 
 1 
 
 «m .vo. "bscrvca, opinion. dlamctricaUy oproscd on he 
 ru";'iuesti«n of the po^vcr as^mncl to be conferred on the 
 
 Privy Council, and of the opinions of the advisers 
 Crown to which wc have referred. 
 
 llnde. tl>e cireun.staneos .e .haU «-»'- J'"' »^; 
 Judieial Committee, the advisers o '^^ ^''""■j/r 
 Cameron, and ourselves arc right, and that Mr. Bethune 
 
 ^'Zr,^:rfor consideration only «>« .uejon 
 whether there has hee... on the part of f « 1*'~^;" »' 
 Huron, any binding assent to the creation of Synod under 
 
 '';/;;:i::::l2:i resolved in th^^^^^^^^^ 
 
 ,.„i 'ermenee is that there is no valid creation of Synod. 
 Wc affirm with great confidence that there has been no 
 
 "'t.''""'exami„e upon «hat assumed relations under 
 .hat heli.f, and moved hv what considerations, «ie ^^ee^e 
 of Huron acted, ao,l how in faet it < ''l^f • " ''''i "^f '"'j 
 Irrespective of the Provincial Synod Act, the Church ot 
 Lg 1 in Canada ha,l no mode of forming an assoeia ion 
 suc^i as a (;eneral Assembly, olher than by the volunta y 
 ::tlon of its members ; and an assembly so coo^'^'^^^J-^^ 
 have had no power to bind any persons, exeepo "'o^" «^o 
 expressly or by impUcatiou had consented to be bound by 
 its action, and would have had no jurisdiction over the 
 members of the Church generally ; much less woula it 1 a^e 
 had aright to establish Spiritual Courts, or by its actio t 
 to deprive persons generally of cither status or property in 
 the Church. 
 
UikIoi- the l>i«.vuui:il Synod Act, the Bishops, CUrgy 
 :,ii(] h'xh': wcro nuthf>rizt..l to moot by re^vc^;.nltatl.>1l trom 
 their rospcelivo Diocn se» in general Assembly, and to frauio 
 n constitution ind rtM^ulnttons tor tlio gen.;rahuanngement 
 nnd fim>l ^'overntnent of the ('Uure!» in (*;inad;i ; and such 
 constitution and rctrulutions would thereupon bccowio 
 bindinj,' and obli -utory upon all the nieu.bers of the t hurcli. 
 This act U merely permissive. It is not upon lonipulsimt, 
 but by tho voluntiry comhlnnthm of all the Dioeose^ that 
 th3 A^^3mbly i« t'^ »^3 formed and tho Aet to become 
 operative. 
 
 At the time of the issue of the Letters Patent, therefore, 
 the Diocese was free to dissent from or assent to any pro- 
 posal for the creation of a Synod; it was not bound to 
 cbey any notice convoking' a Synod, and none t»f its^mem- 
 bers were subject to th- coercive or other junsdiction ot 
 any one outside of the Bioccsc. 
 
 The Letters Patent, which under these circumstances 
 issued, after reciting the presentation by other Dioceses of 
 petitions for the appointment of a Metropolitan, that so 
 the necessary powers might be vested in him for holding and 
 presiding over the ( Jencral Assembly," appointed the Lord 
 Bishop of Montret^ Metropolitan, and directed that tho 
 T^ishops of all the other Sees should be suffragan Bishops 
 to the Metropolitan; and they purported to will and 
 declare that it should be lawful for the Metropolitan, a 
 his discretion, to hold and preside over the General 
 Assembly and General Assemblies ; they purported to give 
 the Metropolitan jurisdiction over the Bishops and all 
 persons in orders in the several Dioceses; they purported 
 to give the Metropolitan po^vers of visiting the said Bishops 
 and persons, for correcting and supplying the defects of 
 the said Bishops and persons, with all and all manner of 
 Tisitorial iurisdietion, power and coercion ; they purportea 
 to empower the Met'-opolitan to inhibit during visita ion 
 the exercise of the jurisdiction of the said Bishops, and by 
 himself or his commissaries to exercise such powers 
 functions and jurisdictions a. the Bishops ^!^\^^ 
 exercised if not inhibited ; they purported to give to an> 
 person aggrieved by any procedure ol any ot the saut 
 
 I 
 
»H, CUrgy 
 ttoii from 
 (I to fraino 
 
 nngt^moiit 
 
 ami such 
 
 n bccomo 
 
 L'oso?, that 
 to become 
 
 tlicrcforo, 
 o jiTjy I ro- 
 , bound to 
 »f its niem- 
 sdiction of 
 
 3umstancc» 
 Dioceses of 
 I, " that so 
 liolding and 
 id the Lord 
 cd that the 
 an Bishops 
 to will and 
 opolitan, at 
 ho General 
 irtcd to give 
 lops and all 
 y purported 
 miid Bishops 
 
 defects of 
 
 1 manner of 
 cy purported 
 ig visitation 
 hops, and by 
 luch powers, 
 
 might have 
 give to any 
 of the said 
 
 Bishops, a right of appeal to the Metropolitan, und to give 
 the latter power finally to dceule and detormmo such 
 nppe.l; and they purported to direct that proecedings 
 Atch miuht bo irstituted against any of the .aid Bishops 
 slmuM be or»./..iated and carried on before the Metropolitan, 
 and to give him authority to take cognizanec oi the same. 
 Tli«^ Metropolitan erroneously believed himself to be, 
 ,„d asserted that ho was, entitled io cxemsc these various 
 ;"wcrs, including that of holding «^ his discretion a Synod 
 or Generrd Assembly. 
 
 Yonr Lordship and your Dioeese, as wll «« the other 
 Bishops and Dioceses, the Secretary of State lor the 
 'olonies, and the legal .dvisers of the (Vown~i« fact all 
 « oneorned^-labored under the same erroneous 
 ,nd indeed it is difficult to conceive a stronger 
 I excuse for that belief than is to be found in the 
 by the Crown, under the circumstances, of the 
 rio. ifcr these powers. 
 
 I The .sietropolitan, in the exercise of these assumed 
 ! powers, proceeded at his own discretion to convoke and 
 hold a Synod, and he notified the several Dioceses, 
 , including that of Ilui-n. to attend upon the specified da> . 
 i Upon this notice, it devolved upon your Lordship and 
 '■ vour Diocese to determine what course should be pursued ; 
 ■ imd, on the common assumption of all parties as to the 
 relative position of each, it is obvious that there was but 
 : one course open, namely, to obey the notice and choose 
 
 • Delegates to Synod. 
 
 You were not ;>.sked to assent to or dusent from the 
 I creation of Synod-Synod was to be created whether you 
 
 willt 1 it or not. 
 Your refusal to elect Delegates would be an act-ot 
 
 • disrespect to the Boyal Letters Patent, and of disobedience 
 to the individual thereby set in authority over you, an.d 
 
 . would expose the parties chiefly concerned to the exercise 
 
 •. of that large coercive and pcnnl jurisdiction assumed to be 
 
 ' conferred by the Letters. 
 
 ^ Your refusal to elect Delegates would not prevent^ the 
 
 : creation of Synod, or hinder its jurisdiction from attaciung 
 
on the Diocese— Syiioil waH to hs created whether you 
 elected Delegates or not, anil, when created, its jurisdiction 
 would attatih on all the Dioccf^cs. 
 
 The question w;ih not pnscnt 'd whether you should 
 negative or concur in proim^ah for a Synod, al»!»rtivo 
 without your co-opcration. Upon that jurav question you 
 had not tho opportunity of dcliberatinj,'. you did n«»t 
 deliberate, and of cDursi^ you c;unc to no determination.. 
 
 Tho question as pre ntcd was, whether you should 
 disobey tho notice risk th(! cfiOHc jucnt peoaltt '. and 
 remain without voice or piirt in a Synod having jnrisdictM.n 
 over the whole Church, or whether, seeing a Synod having' 
 such juriftdlotion w.is inevitable, you should obey the notice, 
 save the penalties, and ptirt'idpatc in its doUbcrations. 
 
 The question w::s not whc^thcr there Kbould be a Synod, 
 but whether you should b,> reprc-oijtcd in the Synod, which 
 was being croatod inlciKiid.mtly of your wishes, by other 
 and extraneous power. 
 
 To this qu-.stion, wo rcpivit, there was but one answer, 
 —The notice nHut bo oboye.l and tlie Delegates chosen. 
 You oboycd the notice and chose the Delegates. 
 The Synol so cmvokcd, the Djl-^gatcs so chosen, met 
 together; the Mt'tropolit:iri, 'xpressly )>y virtue of the 
 Letters, presided at the first nicttlng; dr-libcrations took 
 place on various subjects; a connuUtee, ( )(• which Mr. 
 Cameron was c:>uvoner, and whose report was adopted by 
 the Synod) determined t!i:»t the fietters Patent were vahd, 
 and thus anv doubts on this point must.tothc apprehension 
 of the Dolcgatcs, have bo 30 sot at rest ; several anien(lments 
 of the Letters were su--ested as desirable ; a constitution 
 was adopted ; new Letters Patent were issued in aecor.lunco 
 with the suggested amendment?,; and a second Synod was 
 held under a fresh notice from the Metropolitan. In both 
 these Synods your Lordship and tlie delegates from your 
 Diocese took an active part. ^ . 
 
 We are instructed that the statements g«veu m the 
 opinions of Messrs. Bothuric and Cameron of the part so 
 taken are not pcrfeetly aceurate; but we do not enter into 
 details, because, in our view of the natter, what was done 
 is quite immaterial. 
 
 I 
 
 I 
 
 I 
 
fhcthci* you 
 jurisdiction 
 
 you should 
 >il, abortive 
 lucstion you 
 •ou did not 
 lainntion.. 
 
 you should 
 ii!iU» ', and 
 : juns(lict»<»n 
 ynod havini; 
 ^y the notice, 
 orations. 
 
 bo a Synod, 
 ^ynod, which 
 jcs, by other 
 
 one answer, 
 ,e« chosen. 
 lies. 
 
 chosen, met 
 irtuo of the 
 cratlon<» took 
 tf which Mr. 
 s adopted by 
 lit wore valid, 
 
 aj^prchonsion 
 
 I anuMidmeuts 
 
 II constitution 
 in accordance! 
 ud Synod was 
 tan. In both 
 tcs from your 
 
 yivcn in the 
 
 of tlie part so 
 not enter into 
 ^hat was done 
 
 Thii ahne is trntcrhh that the Pcleg: ^^s were not sent 
 or cmimwercd by ih« Dioce>«o, they were not asVed by 
 Synod, nor did they intend, to eonfiim an in. did 
 organization and an Msur|)ed authority, or to assent to the 
 \olnntary creation of a ><ynod, and that cvcrytliinj? they 
 did wa« done under the .«anio nnntncu belief as to the 
 power of the Metri)roritan t»i «'onvoke and hold the Synod 
 at his discretion, cxisti'Ut at the period of the tirst notice. 
 Su]>se:juently it for the first time appea.od that this 
 belief was entirely erroneous; that everyone bad been 
 acting under i» - »'.n»on mistake; tliat all the extensive 
 powers author! t.v^s a. d. jurisdictions which the Crown had 
 assumed to judve, and the Metropolitan to exercise, were 
 noui-ht, and that there remained to him oidy his title, style 
 
 and dignity. 
 
 It appeared that he had no right to convoke a 
 Synod at his discretion : that he had no power to 
 compel <»b(>dience or punish disobedience to his rc'iui- 
 siti(ms ; that Synod could have been created only by the 
 voluntary action ar.d concurrence of all the Dioceses; that 
 you were entitled to have considered and determined 
 the .luestion whether you should or should not concur in 
 the creation of Synod ; and that the result of your refusal 
 would have been to prevent it^ crer.tion. 
 
 I5iieily, it appeared that the position and rights of the 
 Diocese had in truth remained unaltered by the issue of 
 the Ijetters Patent. 
 
 It is under these circumstances that Messrs. Bethune 
 and Cameron argue that, though the assumed compv.lsory 
 power under which, by a cu 'uiou ni'st.ke, the Synod was 
 convoked and organized, did not io fact exist, and though 
 all that was done by the Metropolitan and each Diocese 
 was done in pursuance op that assumed power and under 
 that common mistake— yet what has been so done may be 
 maintained as a voluntary agreement on the part of each 
 : Diocese to organize a Synod under the Act, and as an assent 
 ; to such organization on the part of each, binding upon all. 
 The bare statement of this position forms iU sufficient 
 ; refutation. 
 
 There has been no agreement oi assent whatever on the 
 I part of the Diocese of Huron to the voluntary creation ot 
 
 I 
 
8 
 a SjnoJ. That whicl, the Bloccsc and its 3>>^legutc, did 
 upon con>,mlsion. and in ol.cdio.K-c to '« ^"l^'^^'l.;'"" 
 which had convoked a Synod without regard to ■«•' T^i^Ue . 
 cannot he tortured into a willing assent '" * '^-f-^^^^; 
 Synod which could not have l.oen fonnod without , a.d » I 
 eo-operation; and, even had t1>c delegates o^™"' f '» f^ .': 
 such assent their action would have been wl>ol ly""S^<«^ 
 sinco they were delegated for no such purpose, "^ «" f *?'', 
 with any such rower; they were sent to re,, sen the 
 Diocese in a Synod already convoked under t''^ ';'^" ' 
 Patent, not to create a Synod by voluntary consent under 
 the Act independent of the Letters. . „, . 
 
 But whatever the power or conduct of the De egaics 
 
 it is clear that the Diocese cannot, under the cucura 
 
 anco be affected by the alloged assent to ™d ae.uj s 
 
 cence i^ the proceedings. The contrary position «r 
 
 viewed in its moral or in its legal aspect, ..s dually 
 
 • untenable. . i i:^« 
 
 He who having procured a contract by a representation, 
 errLc us in fac.,"but which he believed to bo irn.^^ 
 after the discovery of his error to insist upon the contract, 
 commits a moral and a legaliraud. ,„„ ,,„„„^ 
 
 No man ought to be, no man is, morally or legally bound 
 by .ssent or ^cuiesccnec induced though ';^nor|U.cc of hm 
 rights or misapprehension of his position; nor ^ t li^m 
 ' nroceedin.'s originated and continued on a false assump 
 t;o„ and rmder a grave mistake, that an assent can be 
 inferred obligatory in morals or in law. 
 
 We have, therefore, to state to your Lordships that _wc 
 seenorclsonto doubt the accuracy of our former opinion, 
 ,nd wehave to repeat "that the meetings and organization 
 •' of S od were not, nor are they under the circumstances, 
 .' ga binding, and that in order to its proper organi.i. 
 •• tion it is necessary that all the Dioceses ui Canada should 
 " concur in a now organization thereol. 
 We have the honor to remain, c- 
 
 Your I-ordship's faitliful servants, 
 
 ADAM CROOKS, 
 EIWAHD BLAKK. 
 
 Toronto, N'^embcr 18, 1804. 
 
 f *<*-#*-*•-•' 
 
 Pre- Prcis Stenm FrluUng omce Lonaoa 
 
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