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!»»:?<
James JonysTON
vs.
The Minister and Trustees of
St. Andrew's Church :
16
BEINO
A REVIEW OF THE JUDGMENT
Rendered thereon by His Honor, Mr. Justice Johnson,
30th December, 1873.
BY
REV. R. CAMPBELL, M.A.
I*rice IS Oents.
MONTREAL:
PRINTED BY MITCHELL & WIL180N, 192 ST. PETER STREET.
v/ 1874.
M
James Johnston
vs.
The Minister and Trustees of
St. Andrew's Church:
BEING
y
A REVIEW OF THE JUDGMENT
Rendered thereon by His Honor, Mr. Ju*!Tice Johnson,
30th December, 1873.
BY
!^ -^1
REV. R. CAMPBELL, M.A.
MONTREAL:
PRINTED BY MITCHELL & WILSON, 192 ST. PETER STREET.
1873.
/IT!
( . ■■ ' ','-• '''
■■«;,., •- . ■),_
: I ■ t
,V
- ; ■ JAMES JOHNSTON; ; ; / ;
THE MINISTER AND TRUSTEES OF
ST. ANDREWS CHURCH :
T/ie Ecclesiastical bearings of the Case,
The Judgment rendered by His Honor, Mr. Justice
Johnson, in this case, on the 30th December, 1873, involves
fiomev^'hat serious consequences I do not mean the con-
sequences to Mr. James Johnston personally, although to
him they must be very serious indeed ; but, if the judg-
ment is to stand, and be made a precedent of, to the mem-
bers of every Church in Canada. As a humble layman, so
far as the profession of law is concerned, I could not pre-
sume to criticize the conclusions arrived at by the learned
Judge who presided at the trial, while he confines him-
self to expounc'ing the principles of the civil law, or to
weighing the evidence adduced by the Plaintiff and De-
fendants respectively. It is his office to do this, and I bow
respectfully to his decision. If he is satisfied that Mr.
Johnston held no verbal lease from the Trustees of St.
Andrew's Church, and that the receipts put into court had
the legal force of a written lease, and that the whole case
hung upon these points, then he had probably no alternative
but to render the judgment he did. On the purely tech-
nical points involved in the decision, I do not feel myself
competent to form an opinion, but one does not need to
be learned in the law to be able to judge for himself
whether the whole case hung upon this i)oint or not. . I
humbly submit that there were other elements to be
taken into account in order to come to an equitable de-
cision in the case. I indeed agree with His Honor, that
there was not in reality more than one question before
the Court, viz. : " Had the Defendants a right to do as
they did ? " But before a sufficient answer can be ob-
tained to this question, it appears to me that something
more must be done than determinf; the exact legal value
of the receipts held by Mr. Johnston. It is, perhaps, not
to be wondered at that Judge Johnson should have been
reluctant to enter upon a consideration of the ecclesiasti-
cal complications invoh^ed in the case, and which, as I
believe and hope to show before I have done, were un-
wisely and unwarrantably dragged before the Court by
the Counsel for the defence". He is, in my humble judg-
ment, much to be commended for having ignored as irre
levant to the case, the vast amount of evidence led by the
Defendants' Counsel, bearing upon the character and con-
duct of the Plaintiff. But while His Honor was justified
in disregarding their plea of justification, how comes it
that he did not take into consideration the nalyre of the
trust held by the Defendants and overlooked the funda-
mental question, /or ivhom do they as trustees act ? I notice
that he is reported in one place as putting the case thus :
" They once let him a pew in their church." The icatics
are mine. In this sentence we find the groundwork of
the judgment rendered, a judgment which must have been
a surprise to many as it certainly was to me. But this
premise is fallacious. The Church is not their church.
It is as much Mr. Johnston's as theirs. His Honor seems
unaccountably to have overlooked the difference between
this trust and an ordinary one. It is not as if they repre-
sented property or interests alien to Mr. Johnston, to which
he bore no relation until they put him into that relation.
On the contrary, they were elected to the office of Trustee
by Mr. Johnston himself, among others, to look after his
interests as well as their own, and it might, as well as not,
tion.
istee
his
I not,
have happened that he himself should have been chosen
a Trustee. But it will serve to throw still further light
upon this fundamental point, to say a word or two on the
nature of the duties pertaining to the office of Trustee, in
the Churches, connected with the Church of Scotland, in
Canada There are usuallj' two soparate bodies in every
conffrejration, the Trustees and Manas'tn's. The function
of the former is to hold the church property in trust for
a specific purpose, namely, for the maintenance of the
w^orship of Grod according to the doctrines and practice
of the Church of Scotland. When a Trustee is elected, it
is for life, unless he becomes disqualilied, or chooses to
resign. But in the absence of corporate powers. Trustees
who hold property for congregations have only a life
estate in it, and there is consequently risk always of the
trust lapsing, owing to the formalities to be gone through
in electing successors, in case of the death, removal or
disqualification of Trustees. Sev^eral congregations feeling
the inconvenience of this, and desirous of having greater
facilities for the acquisition and disposal of property, have
applied for and obtained corporate powers : St. Andrew's,
Church, Montreal, among others. But for 41 years, from
1806 to 1847, that church was, I presume, on the same
footing as the majority of the churches in Ontario and
Quebec. Besides the Trustees, however, whose sole
function ordinarily is to hold the church property, there
is in most churches, and in every church organized since
1847 there must be, in terms of the Model Constitution
imposed by the Synod on all new congregations, a distinct
body w^hose business is to manage the financial affairs of the
congregation year after year. They are called the Managers
and are elected annually. Tke/y are representatives of the
congregation worshipping in the church for the time
being : the Trustees are representatives of the church at
large, the religious body to which it belongs, and are
bound to hold the property for the maintenance of the
Tiews of that body alone, unless that body, through its
church courts, sanctions the use of it by the representatives
of any other religious dencmination. It is important to
notice the distinction oidinarily obtaining between Trus-
tees and Managers, as it has a bearing upon the merits of
the case before us. By the Act incorporating St. Andrew's
Church in this city, those separate functions are united in
the Trustees of the Church, who are also constituted an
elective body. One of the reasons set forth in the preamble,
for asking a legislative charter, was " the inconvenience re-
sulting from the want of a corporate capacity in them, the
said Trustees, to enforce by legal process the payment of
the rents payable by the holders of pews in the said
church." The promoters of the Bill did not ask for any
neiv powers to be vested in the Trustees or Managers, or
additional to those they were before accustomed to wield,
but only authority to invoke the courts of law to give
effect to their old powers. Interpreted in the light of the
history of St. Andrews's Church, it is clear that the same
principles were to govern the administration of the atlUirs
of the congregation that existed prior to the act of Incor-
Juration, and that are in force still in the majority of the
congregations connected with the Church of Scotland, iu
Canada.
Now, to apply what has been urged above to the mat-
ter in hand, whether we view the Trustees of St. Andrew's
Church in their capacity of representatives of the whole
Church of Scotland in Canada, or in that of representatives
oilYiQ Con}];regation ivorshipping in it, at the time when
they refused to let a pew^ to Mr. Johnston, their conduct
cannot, in my opinion, be justified as equitable. The very
first clause of the Act of Incorporation explicitly states
for w^hose use the Church property exists — " the Church
for the Public Worship and exercise of the religion of the
Church of Scotland in the City of Montreal!' In the wider
sense, as representing the whole Church, they are bound
to grant the use of the building to e\'ery adherent of the
Church of Scotland in Montreal — not for the families or
'
V
individuals at present attending, as families or individuals,
but only because they declare their adhesion to the Pres-
byterian Church of Canada in connection with the Church
of Scotland — and Mr. Johnston, being among the numb*T
of those adherents, could claim accommodation at their
hands even though he had no previous connection with the
congregation, unless they could show that there was no
such accommodation at their command. If this be not con-
ceded, I cannot see how the Trustees could be prevented,
during the three years of their continuance in office, from
excluding every adherent of the Church of Scotland in
Montrt^al from the Church, if they had any motiA-e for
doing so ; and then what would become of the Act of
Incorporation ? But when the Trustees are regarded as
acting in the other capacity, as representatives of those
worshipping in the Church for the time being, their treat-
ment ol Mr. Johnston is still less justifiable. They are
nothiiii;' more than the managers of a joint-stock company
or pavliicrship, Mr, Johnston being a partner or stock-
holder. They represent him as well as the other partners,
and it is only as a matter of convenience that thet/ are
invested with high legal powers, and not because they
have greater rights in the premises than Mr. Johnston.
It is not until Mr. Johnston ceases to be a partner, or, to
drop the figure, withdraws his name from the communion
roll of St. Andrew's Church, or refuses to comply with
the general conditions of the trust, that his rights cease.
They cannot drive him out of the partnership, without
his consent, unless he has violated the conditions of that
partnership, which he is not accused in this case of doing.
Evidence was led by the defence to show that it is no
uncommon thing in congregations connected with the
Church, of Scotland, to abolish pew-rents altogether, and so
to annihilate all rights of pewholders. But the conclusion
sought to be drawn from this, that therefore it was no un-
usual stretch of prerogative for the Trustees of St. Andrew's
Church to refuse a pew to a member of the Church in good
standing, is a non sequitur. No Trustees or Managers of any
church ever did, or ever could, abolish the pew system,
where ^t previously existed, without the consent of the
congregation. And who doubts that the pew system in St.
Andrew's Church might be abolished, if the congregation
agreed to it, Mr. Johnston among the rest? But what
I should like to know is whether in the case of a congre-
gation adopting some other mode of obtaining a revenue
than by giving a right of property in pews for a certain
sum, any one person whose rights were equal to the other
members of the Church, could be singled out for different
treatment from the rest That is the parallel which we
want. But it will be vain to seek it. It really is not a
question of the right in ant/ given ^tew, at all, which is at
issue, but the right of accommodation, like other worship-
pers, in the Church. The pews might all be cleared out
of St. Andrew's Church, and the people be obliged to
accommodate themselves with stools, if they wished to sit
during Divine service, as is the case in many continental
churches ; and the question would be, could the Trustees
prevent Mr. Johnston from taking his stool with him to
church and occupying such a position of advantage as he
might be able to elbow his way to ? As it is, the pews
cover the whole floor of the church, except the aisles, and
unless he got a pew to sit in he could not have a seat in
the edifice at all, if he did not bring a stool into one of the
aisles at the risk of being knocked down and trampled
upon by those entering or leaving the church. It was
also attempted to be shown that other persons besides
Mr. Johnston have been removed by the Trustees of St.
Andrew's Church from the pews they occupied. . But here
again there is no parallel. It was always by arrangement
with the parties, and because the financial interests of the
trust demanded it, that it was done, and they were accom-
modated with seats elseivhere in the Church. And, doubt-
less, if the Trustees had gone to Mr. Johnston and said,
" we cannot give you this pew which you occupy, for an-
other year, because we can let it to greater advantage to
4Some other person, who will pay for it more than you are
willing to pay — but at the same time we will find you a
pew elsewhere, so situated that the sum you can afford
to pay will be an adequate rent," Mr. Johnston would
have felt the request to be reasonable, and would have
complied with it at once. But the letter of the Trustees
shows that they not only declined to give Mr. Johnston
possession of the same pew that he had occupied be lore,
but to rent him awy pew.
If, then, the Trustees have the right to do as they did,
that right does not arise out of the nature of their trust,
and unless there is something in the Constitution and By-
Laws of the congregation specially claiming this right for
them, in opposition to both common sense and equity, I
fear it will be long before we can pomt in any other quarter
to either law or precedent for their action. The Act of
Incorporation confers upon the Trustees the power of
making By-Laws, under certain limitations, one of these
being that such By-Laws or Regulations "shall not be con-
trary to the Constitution of the Church of Scotland." By-
Laws were afterwards framed, and the first section of
Article XVIII of these By-Laws reads thus: "This Church
shall be under the jurisdiction of the Synod of the Presby-
terian Church of Canada, in connection with the Church
of Scotland." We look in vain in the By-Laws for any
special right claimed by the Trustees to disfranchise a
member of the Church who pays his dues, and conforms
to the requirements of the trust. The fact is, no body of
men in framing By-Laws would be so foolish as to con-
spire against their own rights ni constructing them ; and
I venture to say that until a crisis arose in their Church,
which seemed to them to demand a stretch of their pero-
gative, the present Trustees never entertained the claim
which they now put forth, of being able to take pews
from one set of men and give them to others, at their own
option. There being, therefore, no specific authority in
10
the Constitution and By-Laws for the course pursued by
the Trustees, we are obliged, in terms of the Act of Incor-
poration, to consult the constitution of the Church of Scot-
land on the point at issue, and to see what the regulations
and practice of the Presbyterian Church of Canada in
connection with the Church of Scotland, under the eccle-
siastical jurisdiction of which the St. Andrew's congrega-
tion lies, have to say on the question before us. His
Honor, Mr. Justice Johnson, says in his judgment as re-
ported : " We must not confound a voluntary organiza-
tion like this one, exercising corporate powers, under
certain regulations, with the Church in Scotland, from
which it sprung. We have not imported the Scottish
Parish Church and all its usages here. It is because we
had not got these things that we were obliged to shift for
ourselves and get incorporated, and agree among ourselves
how we should be governed," &c. I would refer His
Honor to the Act of Incorporation itself for a correction
of the opinion expressed in these three sentences. Answer-
ing the last of them first, I beg to say that it was not
questions of government that led to the Act of Incorpora-
tion, — the Preamble does not say so, but it and the By-
Laws, which specify nothing about government, clearly
show that it was only for financial purposes, for creating
easily moved machinery for managing the property and
revenues of the Church, that corporate powers were
sought. As to the two first sentences I have quoted, it, is
enough to state the fact tha:. the Act of Incorporation
specially prohibits the Trustees from framing regulations
" contrary to the constitution of the Church of Scotland,"
to show that the learned Judge is astray on this point.
The very Charter, under which the Trustees claim the
extraordinary powers they have exercised in this case,
"imports" " the usages" " of the Scottish Parish Church."
And the Trustees give effect to this clause of the Act of
Incorporation in the stipulations of Articles I and XVIII
of the By-Laws, which provide that the government of
11
"usages" of the
re-
tlie Church shall be regulated by the
Church of Scotland, and that the Synod in Canada shall
see that these usages are complied with.
Judge Johnson more than once employs the word " vol-
untary " to describe religious organizations that are sepa-
rate from the State, and ii such a way as to lead to the
impression that he believes that they are less bound ta
adhere to their laws than Established Churches are. He
cites an American Jurist as his authority for saying that
the Civil "Courts will not interfere with the determination
of the majority of the body of which the complaining party
is a voluntary member, except in certain strictly defined
cases of disposal or misappropriation of property in trust;
and it is only when civil rights as to property are involved
that the secular tribunals will examine so far as to see
that the fundamental rules of law have been observed."
It is, perhaps, not to be expected that a Canadian Judge,
however well skilled in Canadian and English law, should
be familiar with Scottish law and precedents. But I can
furnish him with both law and precedent to show him
that, at least in Scotland, the interference of the Civil
Courts can be invoked in other cases than those he men-
tions — by the members of non-established churches. On
the 19th July, 1861. in the First Division of the Court of
Session, judgment was given in a case that attracted a
great deal of attention in Scotland, the celebrated Card-
Eoss Case. The facts were briefly these : the Rev. John
McMillan, a minister of the Free Church of Scotland, was
deposed from the office of the ministry — he alleged irregu-
larly — by the Greneral Assembly, the highest ecclesiastical
court of that church. Holding that he had not been con-
demned according to the constitutional practice of the
church, and there being no higher church court to which
he could carry the case by appeal, he entered an action of
damages against the Free General Assembly in the Civil
Court. The case was first tried before Lord Ordinary
Jerviswoode. The pleas set up by the Free Church
12
! I
authorities in defence, covered substantially the ground
taken by Judge Johnson, that they being a voluntary as-
sociation, any one who was not satisfied with their action
was at perfect liberty to withdraw from their communion,
and that they were not amenable to the Civil Courts for
the manner in which they administered their laws. The
Lord Ordinary's interlocutor repelled these preliminary
pleas, and held that if Mr. McMillan could prove his alle-
gations, he would be entitled to the interposition of the
Oivil Courts to secure him in the recovery of the amount
of damage he had suffered from the alleged illegal '^ction
of the Assembly. The church authorities brought the
■case in appeal before the highest Civil Court in Scotland,
the First Division of the Court of Session, and I quote
below from the reported unanimous deliverance of the
Oourt, confirming the judgment of Lord Jerviswoode, de-
claring that voluntary associations are bound to adhere to
their own laws, and that if any adherent of such associa-
tion can show that he has suffered injury from the viola-
tion of its own laws, on the part of that association, he can
recover damages in a Civil Court. Lord President McNeill
{now a Peer, Baron Colonsay, a member of the Judicial
Committee of the Privy Council, to whom it is understood
all Scotch cases in appeal before the Privy Council are
referred,) pronounced the judgment of the Court, from
the report of which I make the following extracts : " The
question arises out of the proceedings of a voluntary asso-
ciation — a numerous body, certainly, of Christians — asso-
ciated for purposes of religion — forming a society called,
and perhaps not improperly, a church, though we could
get no accurate definition of that word ; and it is a body
of professed Christians, tolerated by law and enjoying the
protection of the law in the expression and promulgation
•of their religious opinions and doctrines, and in the per-
formance and exercise of their religious rights. That
body has a constitution and rules by which the society is
governed, and to which its members have voluntarily
13
subjected themselves ; and, in so fur as they have sub-
jected themselves to these rules and to that constitution^
the State or the Civil Courts will not hold that they are
entitled to complain when these rules are observed, unless
there is something in them contrary to the public law of
the land." ..." The pursuer avers that according to the
constitution and rules of that association — the General As-
sembly — which is the body possessing the greatest power
according to the rules of that association — the General
Assembly, in pronouncing the sentence in question, ex-
ceeded its powers and violated the constitution and rules
under which he placed himself and had been received
into the association ; and thai by so doing they subjected
him necessarily to loss of emolument, and also subjected
him to injury as regards his character and feelings." . . .
" It is plain that, until the facts are investigated, we can-
not know whether the constitution and rules of the asso-
ciation have been violated or not, whether the terms of
the contract have or have not been broken, by the de-
fenders, to the injury of the pursuer. / cannot assent to
the proposition wlilvli has been contended for on the part of
the defenders, that, whatever may have been the constitution
and rules of this association, and hoivever Jia^rantly violated
by the Assembly, no redress can be made in the Civil Courts.
I think that for injury done by gross violation of the contract,
redress may be given, and in the form in inhich it is asked,
that is to say in the form ofdamagesr The case on its merits
was never inally disposed of, I believe, some sort of com-
promise having been eliected between the parti(\s to the
suit, but this judgment on the preliminary issues still
stands. From the principles laid down in this decision,
in the part of the quotation which I have italicized,
it would appear that Mr. Johnston could summon even
the Session, Presbytery, or Synod before the Civil" Courts,
if he contended that he had sustained injury by their
violating their own law^s — much more the Trustees, who
have had a legal status conferred upon them by Parliar
14
ment for the very purpose of suing or being sued. The
•Civil Court had a right to inquire into all the acts and
motives of the Trustees in the premises, and to examine
the laws of the church which bore upon the question at
issue — indeed, without doing so, it was impossible to dis-
pose of the case satisfactorily. I presume Scotch prece-
dents would govern the case before the Supreme Court
of the realm, the Privy Council, inasmuch as it is in Scot-
land that the machinery of Presbyterian churches is best
understood, and, especially, inasmuch as the charter of
St. Andrew's Church is limited bij the consti! (Hon of the
Church of Scotland.
The learned Judge, commenting upon the evidence led
by Mr. Johnston's Counsel to show that the Defendants
had acted contrary to the constitutional practice of the
Church, is reported to have said : " The Plaintiff is there-
fore driven to rest his case upon the law and usage of the
Church, and in this attempt I think he has completely
failed." I do not know what all the evidence before His
Honor on this point was, but I heard part of it. Dr.
Campbell testified, as one of the oldest members of the
Church, that it was an understood thing that persons
occupying pews in the Church, and paying the dues regu-
larly, should be continued in the same pews, unless they
desired to change them — that this was the practice in St.
Andrew's Church until this case arose, he knew both as
a pew-holder and a Trustee. I am not aware that this
testimony as to usage in this particular congregation, was
<jontradicted by any subsequent witness. I know that
one other witness, who claimed to have some knowledge
of the law and practice of other congregations, declared
that he had never heard of such an arbitary exercise of
power on the part of Trustees as in the present case, and
that he believed it unparalleled. I am prepared to main-
tain that the records of every Presbyterian Church in
Christendom will be ransacked in vain, to find a prece-
dent for the action of the Trustees. I regard it as a most
i! >
i ! I
15
high-handed procedure, contrary to the whole genius of
our eolesiastical system, as well as to express laws, that
the mere financial or temporal agents of a Church should
arrogate to themselves the power to exclude any member
of the Church from a participation in Christian ordinances,
much less a high spiritual office-bearer of the Church,
which Mr. Johnston at the time was, — as they virtually
did by refusing to let him a pew. It is a mere quibble to
say that this refusal did not necessarily drive Mr. Johns-
ton from the Church. It is amazing that, as matter of
fact, it had not that effect ; but that it was designed to
accomplish that result cannot be questioned. The letter
from the Trustees makes this plain. Besides, Dr. Camp-
bell, with admirable candor, acknowledged that it was
because of the alleged annoyance to which the minister of
the Church was subjected in the Session by Mr. Johnston's
presence in it, that he as a Trustee was led to advise the
course which was pursued towards Mr. Johnston, in the
expectation of ridding the Session of him. I am sure that
that gentleman, and the other gentlemen of sense and
shrewdness associated with him in the trust, never thought
of the far-reaching consequences — the blow struck at the
rights of members and at the liberties of the spiritual
courts, involved in their act, or they could never have
been persuaded to be instrumental in giving so terrible a
wrench to the constitution of the Church. For, even
though the power to do as they did, lay obviously in their
hands, the inexpediency of exercising it, and the serious
strain that would be laid upon the w^hole machinery of
the Church, ought surely to have occurred to them. I
cannot believe that they w ould have lent themselves to
outraging consciously the inalienable rights of any man,
had they foreseen the full bearings of their act. It may
be that the Trustees who were in office at the time, when
this outrage was perpetrated, are proprietors of pews, and
therefore may regard themselves as safe from being treated
in the same manner at some future time ; but what se-
16
!! I
i^ 11 ! •
11 i !
hi!! *
curity has any person in the congregation, other than
proprietors of pews, that he can continue a member of
the Church* if the Trustees at their own option have it in
their pow<^r to close out not only a member of the Church,
but their own ecclesiastical superior, an elder, to whom,
in virtue of his office, they owe respect and obedience ?
Nay, if they can shut the pews against elders, what secu-
rity has the minister that they shall not shut the pulpit
against him ? It might be thought that the fact of the
minister's being ex officio a member of the Board of Trus-
tees secures him against any violation of his rights, but I
suppose he can be overruled by a majority of the Trustees.
And if it be urged that a minister can be shut out of a
Church only by the action of ecclesiastical courts, I answer
that an elder cannot be deprived of his status either, ex-
cept by the spiritual courts. And if it be said that Article
XVII. of the By-Law^s, which places the custody of the
keys of the Church in the Minister's hands, is a further
security for the Minister again^it being excluded, the very
same article, a few words further on, shews that during a
vacancy or the absence of the Minister, it might have
fallen to the lot of Mr. Johnston, as a member of the Kirk-
Session, to take charge of the keys. Yet in spite of the
apparent security which this article gave him against
being hindered in the discharge of his spiritual duties,
the result was that the Trustees thought to ride rough-
shod over him. I have argued the last point, on the sup-
position that the Trustees acted arbitrarily, and without
reasons assigned. To have done so would have been bad
enough, we haA*e seen, for if they could shut out one
elder they could shut them all out — but the case becomes
greatly aggravated when they assign as a reason for their
action, Mr. Johnston's conduct. The moment they take
it upon them to judge of conduct and character, they
usurp the functions that belong to the Church courts
alone. . ._:■, , --.-^ . _:■ ,•;•.:;; ^
I have already remarked that Mr. Justice Johnson ex-
17
«rcised a wise discrimination in taking- no notice of the
evidence in disparagement of Mr. Johnston's character
led by the Defendants in Ju.stihcation of their action
ti>wards him. But although he made no apparent use of
this mass of evidence, it was pubHshed in the city press,
aud designed to convey the impression that Mr. Johnston
was so intolerably bad a man that he was unlit to be as-
sociated with Christian people. Moreover, if the Judge
did not take cognizance of the attempt to justil'y them-
iselves on the part of the Defendants, for dealing as they
did with the riaintilf, their olfence against ecclesiastical
order and decency is none the less on that account. It is
Jit this point that the case begins specially to concern the
Church Courts. I ma^' say for myself that I lind little or
no interest in the suit until I heard Dr Campbell avow
that it was because of Mr. Johnston's conduct in the
Se-ssion, and at a public meeting of the Congregation, that
the Trustees took the course they did. I had before that
protested to the Counsel ibr the PlaintiH', against being
smgled out from the Clergy of the Presbytery to give evi-
dence in the case, as I did not wish to be mingled up
with the matter. I fancied that the Defendants would
Test their case upon the Act of Incorporation and By-Laws,
and contend that they Avere empowered by these to act
as they did. Had they confined their defence to this
jjround, or to the ground His Honor occupied in his
judgment, I should not have cared very much about the
case, as it would then at most affect St. Andrew's Congre-
gation alone ; and although it might entail disagreeable
consequences upon them, yet, if they were satisfied with
leaving their spiritual rights at the mercy of their Trustees,
no one else need be concerned much about it. But as
soon as I perceived that the Trustees, in their defence
were determined to pour contempt upon the spiritual
ooarts to which they owed obedience, by raking up
matters that had been settled in the Presbytery and
Synod, I felt that the case was no longer James Johmton
B
•
18
II
;,iii
VS. The Minister attfi Trustees of St. Andrew's Church, but
it was the ecc/esiastiral Courts against the Jinancial Manag'ers
of the Congregation. I coni'eiss that from that moment I
waK no longer an nj^athetic spectator, having no special
interest in the case. T felt that I should be utterly want-
ing in duty to the constitution of the Church of which I
have the honor to be a Minister, if I did not do all in my
power to subvert legitimately the pretensions of the De-
fendants. When I was ordained to the ministry I took
the loUowing oath of office : " that if any encroachment
on the supreme power and authority (that of the Synod
in spiritual matters) shall be attempted or threatened, by
any person or person^, court or courts whatsoever, then the
Synod, and each and every member thereof, shall, to the
utmost of their power, resist and oppose the same.'* As
the Trustees set themselves against the Church courts, I
could not in view of the foregoing declaration, look on
indifferently. The Trustees arrogated to themselves the
power of judging Mr. Johnston, and coming to conclusions
adverse to him ; they determined that he should no longer
rule over them as an elder, and to make sure of this they
would no longer afford him sitting room in the Church.
Now, the constitution of the Church of Scotland, both in
Scotland and in Canada, provides that there is only one
way in which an elder can be dealt with if he misconducts
himself. He is to be formally charged and tried by his peers
in the Session alone, or the matter is, by consent of parties,
referred to the court next higher, the Presbytery. He takes
rank above the rest of the congregation, and above the
Trustees ; and for either the temporal authorities of the
Church, or the congregation at large, to assume the right to
pronounce upon his conduct, is a gross irregularity. Now,
at the time when the Trustees informed Mr. Johnston
that they would not let him a pew in the Church, he was
a member of the Kirk-Session in good standing, and con-
tinued to be so for some time afterwards. He got the notice
from them on 7th December, 1872, and we find him still
10
they
iirch.
th ill
one
ducts
peers
(fcirties,
takes
e the
f the
ght to
Now,
nstoii
e was
con-
Inotice
still
Teceiving calls to attend meetings of Session np to 28rd
January, 1873. It is clear, then, that the action of the
Trustees was meant to coerce Mr. Johnston in his course
as a member of vSession. The letter he received from Mr.
Wardlow on the 7th December, and the testimony of Dr.
Campbell, make this manliest. The latter concluded his
straia'htforward evidence bv ackno\vledi»'ina: thiit the Trus-
tees in an interview with Mr. Johnston, after the action
complained of, otl'ered to continue liini in the possession of
his pew, provided he would rci^i^ti his st'dl in the Session. If
this was not an attempt on the part of the temporal autho-
rities of the Church to override the spiritual, I do not
know how the action can be desig-nated. What the pro-
per functions of the Trustees are we iind laid down in the
Constitution and By-Laws ot the Church — they are con-
fined purely to managing the tinances and guarding the
property. Here is how the law of the Church defines the
functions oi^ the Session: "The business of a Session is to
regulate all matters relating to the worship of Lrod, and
the spiritual government of the congrt^uation; in particu-
lar, to take an oversight of the members in respect of their
walk and conversation, and to care for the reli<iious in-
struction of the young aiul the ignorant ; to admit and
disjoin communicants; to grant certi,licates of membership,
to exerciso discipline, &c." I quote from the Book of
Polity of the Synod of the Presbyterian Church of Canada
in connection with the Church of Scotland, under the
jurisdiction of which the St. Andrew's Church lies : the
Polity of the Parent Church of Scotland uses words almost
identical. From which it is manifest that the Trustees in
this case have traversed the duties properly appertaining
to the Session, in taking cognizance of conduct. During
my own examination as a witness at this trial, I was asked
whose duty it would be to take charge of any person pre-
sent at a service in the Church who behaved in a dis-
orderly manner. I replied that the assistance of the police
could be invoked. When further asked whose proper
t
20
I
Imsiiiesei it was to invoke that aid, I said that I did not
know, ])ut that I supposed it would be as much the duty
of the Session as ol' the Trustees. 01" course, a minister
with reference to ecclesiastical laws is situated like an
advocate with reference to civil laws : he is familiar only
, with those i)oints that have occurred in his practice.
» Now, this was a point that had never been raised in my
experience or ol)servation. As soon as I went home, how-
ever, and consulted authoiilies on the subject, I easily
satislied myself that it would })e the business of the ISes-
sion alone to see to the suppression of unruly conduct in
the Church, '^lie i)ussn,i>e I have cjuoted from the polity
of the Church invests them with the duty o[ reg-f^hiting'
all nint/crs relalinii; (o /lie wors/iip of (UxL And that it is
the Kirk-Se^sion who ore responsible for the rig-ht ordering
of alfairs in the Church, and not tlie Trustees, is manifest
from the fact that with them, and not with the Trustees,
lies the custody of the keys o'" the Church, both by a gene-
ral resolution of the Synod and by By-Law XVII. of St.
Andrew's Church. In the case of disturbance, as sup-
posed by the Judge, it would be the duty of Ihe Kirk-
session to interfere, and this they would do by their church
officer, " who," we are informed in Cook's Styles, " carries
out the orders of the Session, and executes its summonses."
His Honor, who seemed to attach importance to this point,
had his attention directed to it subsequently in the address
of the Counsel for the PlaintilK
I believe I have now touched on all the material points
bearing on the merits of this case, and I think the conclu-
sion logically arrived at is that when the nature of tho
trust is taken into account, and when the Act of Incorpo-
ration and By-Laws of St. Andrew's Church are interpre-
ted in the light of the past history of the Congregation,
and of the constitution of the Church of Scotland, specially
cited in the Charter, as well as of the regulations of our
own Church in Canada, the Trustees have utterly trans-
cended their powers, and have acted in a very high-handed
manner towards Mr. Johnston.
21
Here my task ought to terminate. But the worst has
yet to be told as to the treatment of both Mr. Johnston
and the Church courts by the Defendants. To the follow-
ing resume of facts I do not think exception will be taken.
First. An elder in our Church is appointed (ul vitam aut
culpam. He is "in orders," to use an English Church
phrase, as well as the Minister, and his orders are equally
" indelible." His duties consist in advising with the
Minister, in aiding him to govern the congregation, and
in taking part in all the work that belongs to the Session.
He has an equal voice with the Minister in the Session,
the only superiority which the latter has lying in his
being the only qualified Moderator or Chairman of the
Session. Indeed, the Moderator's duties do not lead him
to vote pxci^pt when there is a tie between the other elders.
His bu si I leys is to moderate, to guide the discussion, to de-
cide imimrtially between the other members of Session,
when a dilierence of opinion exists, — but hi" very position
and title preclude him from identifying himself with a
party in the Session. Secondit/, Mr. Johnston was chosen
and ordained as an elder in St. Andrew's Church, and it
may be presumed he was thought specially qualified fop
the office or he would not hare been selected out of the
large congregation worshipping there. It is now said
that he was specially un^t for that office, on account of in-
iirmities of temper and obstinacy of opinions. But that
was a point that should have been settled before he was
put into office. He was no stranger in Montreal at that
time. He had long occupied a prominent position as a
merchant in the city, and was perfectly known in eccle-
siastical circles, both for his zeal in aiding the enterprizes
of the Church at large, and for the tenacity with which
he held his opinions on church matters. Indeed, he
probably would never have been identified with St. An-
drew's congregation, had it not been for this characteris-
tic. Yet, with this record well known, he was created
an elder of St. Andrew's Church. It having seemed ffood
ml
!l!
oo
to that congregation to take this step, no one else had any
right to interfere ; but it is with a congregation in choosing
an elder, as it is with a man in choosing his wife — it is a
serious business — it is an engagement for life. A man can.
take to himself a wife, but he cannot, anywhere else at
least than in the neighbourhood of Chicago, put her away
at his own option, merely for " incompatibility of temper,"
The Civil Courts alone can dissolve thtir union, unless
they choose to live apart, and that only for the most serious
crinu\s. It is precisely a parallel condition of things that
we find in the case before us. Once a Session invites a
man to join them, and invests him with the character of
an elder, they cannot thrust him out contrary to his will,
because he can crave the protection of the higher courts;
and these courts do not allow elders to have their orders
taken from them except for the most serious causes.
Thirdlij^ Mr. Johnston discharged the duties of an elder
to the apparent satisfaction of the other members of the
Session lor a considerable time after his ordination. At
length, however, an issue arose in the Session on which
he diii'ered with several of the elders, and on which
he, an old man, naturally conservative, felt strongly.
Fourflil//, The result was not only a collision with certain
other members of the Session, in which, however, he did
not stand alone, as he was sustained by a considerable
portion of the members, but also with his minister,
whom he accused of casting in his influence with the
party to whose views he (Mr. Johnston) was opposed.
He addressed a priated circular to the congregation in
which he gave expression to his views in a plain, blunt
way, using uncourtly language, and throwing out insinu-
ations against his minister that were certainly offensive.
For this very unwise and irregular procedure he was
suspended from his office of elder for six months by the
Session, the other members, not unnaturally, being indig-
nant with him for taking such questionable means to
make his views prevail, and especially desirous of shield-
23
ing their recently settled and popular minister from the
attack they thought Mr. Johnston had made upon him.
Against this action of the Session Mi. Johnston appealed
io the Presbytery, in which the judgment of the Session
was sustained by the casting vote of the Moderator.
The case was further taken by appeal to the Synod, oii
two grounds mainly, that the Session had not proceeded
against Mr. Johnston as the forms f law demanded, and
that even had they done so, and were all true that was
•charged against Mr. Johnston, it would not constitute so
great an otfence as to warrant their suspending him from
his office. The Synod without discussion, unanimously
came to a finding substantially vindicating the character
of Mr. Johnston, and confirming him in his eldership;
-and this decision was acquiesced in by the Session..
Here, according to all law and order, the matter took end.
I have acknowledged that even voluntary ecclesiastical
courts can be held to account before the civil courts, for
their deliverance's, when these injuriously atiect those
against whom they are pronounced, but this can never be
done afterwards, unless the parties cause their dissent to
be recorded at the time, which was not done in this case
— neither was the Synod cited to appear before the Supe-
rior Court in Montreal — and therefore I hold that it was
highly contumacious, and argued supreme contempt for
the Synod, whose jurisdiction their own By-Laws compel
them to acknowledge, for them to drag this matter before
the Civil Court, or to refer in any way to what was finally
disposed of. That is count Number One.
Here is another circle of facts :
1. For several months after the settlement of the case
before the Synod, all was going quietly in the Session,
when a new issue arose about St. John's (French) Church.
Mr, Johnston in the Session opposed the majority of the
members, who proposed to apply to the Presbytery for
leave to occupy St. John's Church, as a territorial Mission
C5hurch, At a meeting held in the Church on the 4th
r
24
i' ■ !
i !
iili
November, 1872, the proposal of the majority of the Ses-
sion was approved of by the congregation then assem-
bled, Mr. Johnston alone dissenting. At this m«eeting an
unpleasant scene took place, Mr. Johnston, irritated, as he
alleges, by an accusation brought against him, which he
declares to be false, became excited, and seemed to con-
tradict the minister who occupied the chair, and conducted
himself in such a manner as alienated from him- some of
those in the congregation who had hitherto been favor-
ably disposed towards his views, resulting in a unanimous
request on the part of those present that he should with-
draw from the Session.
2. The Presbytery the next day declined to entertain
the proposals of the St. Andrew's Kirk-Session and con-
gregation, on the ground that St. John's Church wa» not
at the disposal of the Presbytery ; and thus the views of
Mr. Johnston on this question prevailed over those of th«
rest of the Session and the entire congregation. Yet not-^
withstanding that the result of this difference of opinion
between him and the Session and congregation was to
create new trouble in the Session, he continued to attei*d
the meetings of Session and to receive notice of them np^
to 23rd Januarv, 1873.
3. Meanwhile a correspondence was carried on betweeu-
the Minister of St. Andrew's Church and Mr. Johnston,
with the view of procuring the retirement of the latter
from the Session, Mr. Johnston failing to respond to the
call of the congregation and the solicitations of the min-
ister, refusing to withdraw from the Session under com-
pulsion, and asking that specific charges should' be laid
against him and that he should have a fair trial,, on the
7th December received from the secretary to the tru&tees^
a copy of the following resolution — that document which,
gave rise to the present action —
"Montreal, Dec. 7th, 1872.
" That in order to sustain the action of the congregation,,
taken in regard to Mr. James Johnston at its meeting on.
u
the evening of the 4th Nov. last, the frustees do now
decline to let a pew to Mr. James Johnston for the ensu-
ing year — carried, A. Buntin dissenting." •' s
Notwithstanding this notice, Mr. Johnston still attended
the meetings of the Session, and at this time Ihere seems-
to have been no disposition to proceed against him eccle-
siastically, for any alleged unruly conduct at the congre-
gational meeting on the 4th November.
4. Meanwhile, a new complication arose : Mr. Johnston^
instituted an action before the civil court for damages
against a member of the Session, for alleged defamation
of character by an accusation, which he maintained wa&.
false, made against him at the meeting on the 4th Nov.
5. And it is very suggestive that it was soon after this
action was instituted, but some time after the declared
offence was committed, that Mr. Johnston was formally
arraigned before the Session for having behaved scandal-
ously towards his minister and the whole congregation
on the 4th Nov., and not pleading before them, on ther-
untenable ground that he could not expect justice at their-
hands, the Session found him guilty and passed sentence
of deposition upon him.
6. He appealed to the Presbytery from this sentence,,
and while the appeal was being prosecuted before the
Presbytery, and a member was speaking to a motion pro-
posing to reduce the sentence of deposition and order a
a new trial, the representatives of the Session offered to-
withdraw their sentence and restore Mr. Johnston to his
status as an elder, provided he would retire from the Ses-
sion when thus restored. By consent of Presbytery this
was done. Mr. Johnston's appeal was fallen from, the^
sentence of deposition was recalled, and Mr. Johnston
handed in his resignation. Subsequently the Session ac-
cepted his resignation. - .
7. The law of the Church is that when a suit is aban-
doned all the evidence led regarding it ceases to be evi-
dence, or to be of any value, and so is destroyed. Here-
, ip ■ I
liil
Mi;;
ii,
is the text of the Church's law : " Minutes of the whole
proceedings shall be regularly kept by the Clerk of the
Court, but shall not be entered on the permanent records
until the trial has been completed. If the accused is ac-
quitted, these minutes shall be then destroyed ; and the
only record entered shall be a statement that such charge
liad been made, and that the party had been acquitted "
This trial was ?>ever completed inasmuch as the deliver-
ance of the Session was immediately appealed from, and
therefore the law quoted above was the law by which
the Session of St. Andrew's, Church were bound to regu-
late their subsequent procedure. They were under obli-
gations to see that everything relating to the trial of Mr.
-Johnston was destroyed. But to make sure that nothing
should remain on the records of the Session, prejudicial
to him in this matter, Mr. Johnston stipulated with the
Committee of Presbytery that conferred with him regard-
ing his resignation of the eldership in St. Andrew's Church,
that he would not resign unless he was assured that these
minutes should be destroyed. The Committee assured
him. that this would follow as a necessary consequence
from the withdrawal of the sentence and charge of the
Session, and that they would see to it that the Presbytery
should give the necessary instructions to the Kirk-Session
aiient the deleting of the minutes. The Presbytery acted
on the Committee's suggestion ; and the Minister of St.
Andrew's Church, and the elder representing the Session
in the Presbytery, seemed to undertake with alacrity and
thaniulness, that this deleting would be duly attended to.
And yet, will it be believed, that these minutes that now
have no /ep^al existence, have been made use of by the De-
fendants in the present suit ? Incredible as it would ap-
pear, such has been the case. The factum, prepared by
the Session, for resisting Mr. Johnston's appeal before the
Presbytery, was amongst the papers put into Court by the
Defendants ! How this can be reconciled with honour,
justice, and truth, I cannot understand. Why the Plain-
27
tiffs Counsel suffered this document to be put in as evi-
dence, without protest, I cannot comprehend ; they ought
certainly lo have resisted it ; and had they done so, the
Judge would have been obliged to inquire into the eccle-
siastical regulations bearing upon the question. I trust that
whe'^ the Presbytery comes to inquire whether the minutes
refe. :,ed to have been destroyed or not, some satisfactory
explanation can be given of how these minutes came into
the hands of the Defendants in this case, and that it will
appear that they made use of the factum spoken of in op-
position to the wishes of the Minister of the Church, not-
withstanding that he was a party to the suit, and of the
representative elder, although he was one of the counsel
for the defence. =^ So far as the last process instituted in
the Session against Mr. Johnston is concerned, it termi-
nated in his full acquittal, and he is now an elder in good
standing, as the Session acknowledged by accepting his
resignation — although no longer an elder in that particu-
lar congregation. When the Session offered to withdraw
their sentence and charge, and the Presbytery consented
* Since tlie above was in type, the Presbytery liave met, and to my utter
amazement the representatives of the Sjssion have denied having given any
pledge regaiding the deleting of the minutes. The representative elder
says that he undertook to see the sentence of deposition removed on condition
that the rest of the Session approved of it. But that there were no condi-
tions attached to the olfor to remove the sentence is manifest from the fact
that the Presbytery acted upon the offer, which they would not have done
had it not amounted to an absolutt! undertaking. There must have been
entire reliance in tlie good faith of tlie Session on the part of the Presbytery
at large, and especially of tlie Committee of Presbytery that succeeded in
getting Mr. Jolinston to resign, or they would never have been parties to tlie
transaction. And to show that the Presbytery felt that the matter was d(^fi-
nitely settled, without conditions, they kept no minutes regarding it, which
surely they would have done, if the removal of tlie sentence of deposition,
which is another phrase for destroying all records of the trial, was conditional
\ipon the terms of settlement being ratified by the other members of Sessionj
And it appears they did ratify the offer of their representative, because they
accepted Mr. Johnston's resignation, which was given upon the good faith of
that oifer. Unless we are to conclude that the whole Session justified the
course taken by the Minister and representative elder, we should have to
28
^•ii
■ ' '
to this course, this was the legal end of the whole ques-
tion, and it was positively indecent as well as illegal after-
wards to rake up matters which the Session themselves
had buried. And seeing that the Minister and his repre-
sentative elder may yet have to account to the Church
courts for their conduct in having apparently counten-
anced a proceeding directly in the face of the authority
of the Church, I say no more on this point.
But inasmuch as they have chosen to drag the details
of Mr. Johnston's opposition at the meeting of the congre-
gation on Monday the 4th Nov. 1872, before the public, at
the late trial, as if his conduct on that occasion was of a
character so damaging as to warrant the most violent pro-
ceedings against him, I claim the right to offer a few re-
marks upon the proceedings of that Monday night's meet-
ing. Had the action of the Session in deposing Mr. John-
ston from the eldership, on account of his conduct at that
meeting, gone for review before the higher ecclesiastical
caurts, I do not doubt that the judgment of the Session
would have been reversed. I for one would have been
rm I
accuse them of being parties to a trick to Rocure the result, the retirement
of Mr. Johnston, without sanctioning the condition made by their representa-
tive, the removal of the sentence. At all events, if the representative elder
found that he could not obtain the consent of his colleagues in tin; Session
to the arrangement which he proposed, he was bound to protest against
their acting upon it, which he <loes not appear to have done. Anil more than
this, he, as counsM in the case under review, snlfered the minutes mentioned
to be employed, which surely he could not honorably consent to, even though
the Session had discarded the arrangement, since he at least had sanctioned
it, and he knew that all which took place subsequently in the Presbytery re-
garding it was founded upon his oifer. There being no Presbytery minute
with respect to it, the Committee that conferred with Mr. Johnston cannot
prove by any documents, although there is oral testimony enough, that the
Presbytery issued its injunction to the Kirk Session to delete tlie minutes
referred to, and that the members of the Session present undertook to see
this done; but they would have to be taken for either knavis or fools, if
they satisfied Mr. Johnston that they would see that a certain thing should
be done, and did not exact assurance from the i)roper parties that it would
be done, before they handed over to the Session the resignation wiiich Mr.
Johnston placed in their liands.
29
ques-
J after-
aselves
1 repre-
^hurch
)unten-
thority
details
congre-
iblic, at
as of a
ent pro-
few re-
s meet-
r. John-
; at that
siastical
Session
re been
retirement
eprescntca-
iitive elder
;h(^ Session
;st against
more thtin
mentioned
n'n though
sanctioned
sbytery re-
ery minute
ton cannot
;li, that the
I'.e minutes
took to see
; or fools, if
liivjf should
lat it would
which Mr.
\
\
3
prepared to maintain that he did and said nothing at that
celebrated congregational meeting that would justify so
grave a sentence. Mr. Johnston behaved foolishly, no
doubt, and did not show that respect to the members of
the Congregation who were present that he ought to have
done ; but he alleges and offers testimony to prove that
he was thrown into very great excitement by an accusa-
tion preferred against him, which he indignantly repelled.
Any unseemly gesticulations which he indulged in might
well be excused in such circumstances. But the burden
of his ollending on that occasion was, in the estimation of
the Session, the manner in which he called in question
the statements of the Minister regarding the non-distribu-
tion of the ' Presbijterian! I hold that in the circumstances
Mr. Johnston was warranted in being confident, on his
side of the question. He had taken pains to inform him-
self that the " Presbyterian " had been delivered in the
building on Saturday night. He produces evidence to
show that he had received assurances at the printing and
express offices to the effect that the periodicals had been
delivered, and this being the case he had good grounds
for suspecting either neglect on the part of the Church
officer in not placing them in the pews, or a designed
withholding of them on the part of the Church authori-
ties ; and any reasonable person will say that he was
justified in putting it again and again to the Minister if
he was perfectly sure that the "'Presbyterian'' had not
been delivered. As it turned out, Mr. Johnston's infor-
mation proved incorrect ; but the falsehood of one of his
informants does not prove him false ; and no court, civil
or ecclesiastical, that was actuated only by sentiments of
calm justice, would condemn a man who could offer so
good an explanation of his conduct. I say nothing of the
manner in which Mr. Johnston may have challenged the
Minister's statement about the " Presbyterian " — it may
have been offensive — but so far as the substance of the
matter is concerned, the Minister was bound to regard
80
Mr. Johnston's explanation of his reason for being so
positive, that he had received false information — as valid.
That the allot>od oifence for w'^hich Mr. Johnston was de-
posed by the Session was not sufficient to justify them in
proceeding to that sentence, notwithstanding that he
committed the grave error of not attempting to defend
himself by challenging the evidence taken against him, is
manifest from their subsequent readiness to withdraw
their sentence. Had Mr. Johnston committed a serious
crime, they were in duty bound to see that he was ade-
quately punished for that crime ; and it would be like
compounding a felony for them to reduce their sentence.
And that the Presbytery were of the same mind as to Mr.
Johnston's alleged offence is manifest from their action
in allowing the Session to withdraw their sentence. And
when the condition on which the Session otfered to clear
Mr. Johnston's character is taken into account, we are
forced to the conclusion that it was not to mark their
abhorrence of his crime that he was dealt with, but
to get rid of his presence in the Session — and that the
solemn forms of ecclesiastical procedure, meant for the
punishment of heinous sins, were unwarrantably prosti-
tuted to the accomplishment of this end. The great mis-
take made by Mr. Johnston, was in not directly commu-
nicating with his minister and offering an explanation and
apology as soon as he discovered that he had been misin-
formed. But it is not customary in these days to hang
men for want of courtesy. This is the conclusion one
must come to, even admitting all t»he evidence led before
the Session, to show that Mr. Johnston had accused his
minister of keeping] back the " Presbyterian " ; but I am
bound to say that the evidence on that point is far from
conclusive. Mr. Johnston emphatically denies having
made such an accusation, and his assertion is borne out
by the short-hand notes of the expert reporter whose ser-
vices he had taken the precaution beforehand to secure.
The testimony afforded by the report of this latter gentle-
81
man is more to be trusted for accuracy and impartiality^
than the vague recollections of members of the congregar-
tion taken down two or three months after the occurrence
to which they related. The only person whom Mr. Johns-
ton says he reflected on was the church officer, and he
apologized to him as soon as it was discovered that the
express had not delivered the parcel : and thus Mr. Johns-
ton made what reparation he could for the injury that hi*^
had been misled by false information into doing to the
only person whom he maintains he had wronged. As to
the action of the congregation in passing an opinion upon
Mr. Johnston's duty in relation to the Session, I hold that
that was entirely vllra vires, and that the minister, who
w^as presiding on that occasion, ought not to have allowed
the congregation to take so unconstitutional a step A
great deal has been made of the unanimity with which
the congregation acted in asking Mr. Johnston to resign..
But any minister who occupies a high place in the esti-
mation of his people, and whose constant business it is to
control popular assemblies, could easily get his congrega-
tion arrayed against an elder, especially if that elder
lacked popular talents and had committed awkward
blunders in their presence, as Mr. Johnston did. But it.
does not follow that they, guided by their minister, though
unanimous, should necessarily be right, even if it were*
consistent with the impartiality and dignity of a chairman
to incite one party in a meeting to take action againsi an-
other party. It is said in justiiication of the course takeR
in obtaining an expression of the people's wishes, that Mr,.
Johnston had previousl)'^ said that as he had owed his
election to the people, he would only retire at the ex-
pressed wish of the people. In this Mr. Johnston was;,
wrong. The people have the nomination of elders, but
the right of selecting and ordaining elders resides in the
Session only. So that Mr. Johnston being astray in hi»
ecclesiastical law, this was no reason why the congrega-
tion should be allowed, or prompted, to arrogate to them-
"1^
¥S'
V -:in
82
: selves the authority that belongs to the Church courts
aloJie. ., ,' ■ ,:•■ .'*,-. 'V :, !>., , < . f
In conclusion, I beg; to say that I am no apologist for
Mr. Johnston. I am under no ol)ligiitionH to him, nor
do I expect to be. Had I been his counsellor, and had
he acted on my advice, he would certainly hav^e taken a
very dilf'erent course from what he did. I see much to
condemn both in what he has done and in his manner of
doing it ; but that does not prevent my seeking to hinder
his being outlawed lor the tenaciousness of his opinions
and the abruptness of his speech. His very failings lean
to virtue's side. If he is to be driven outside the pale of
a Christian congregation because he contends persistently
for what he deems the right, then the nation to which he
belongs will have to be placed outside the Christian
nations. That in him the national qualities are exagge-
rated, may be true ; but every discerning mind will see
in him a genuine Scot. " They used to 6>ay in the middle
ages, ' Nemo Scotus sine pijfere in naso,' and now it is a
proverb on the Continent, ' Fier comvie Ecosaois.' " This
is an extract from a letter of the celebrated Edward
Irving to the late Dr. W. Anderson of G-lasgow. Irving
adds, " My notion is that in the commonwealth of nations
the Scotch have been set to show forth the indomitable-
ness of man under all outward assaults and oppressions
from without ; the adamantine resistance — the asbestos
unconsumableness." We are accustomed to laud our an-
cestors for the steadfastness and valour with which they
contended for their Christian liberties ; and that cannot
surely be a crime in one of their descendants which was
a virtue in them. Mr. Johnston has hitherto been a
proved friend and benefactor of the church of his fathers,
and, in my estimation, it argues more than obstinacy on
his part, namely, loyal attachment to the principles of
that Church, in an age and city that cannot count many
martyrs to principle, that he still adheres to it. I can
easily conceive that many of those who condemn him for
A i
iiii! i
his tenacity of purpose, would flee to any other church,
even to that of the Uesu, rather than submit to the harsh
treatment to which, I believe, he has been subjected.
Some may think I have made too much of mere ecclesi-
astical irregularity in this review. They may be inclined
to the belief that substantial justice. has been done in the
premises, even though the laws of the church were
trampled upon. Those who take this view are probably
of opinion that ecclesiastical regulations are only useless
forms, and that it is of little consequence to the interests
of religion whether they are observed or not. But such
persons need to be told that these regulations are not of
an ideal or arbitrary kind merely, imposed as a Utopian
scheme, without reference to the need and advantage of
those to whom they apply. They are rather the product
of experience, and have been formed to meet the need of
cases as they have arisen from time to time in the past
history of the Church ; and in preserving them consists
the only guarantee for the rights and liberties of all par-
ties connected with the Church. Even though Mr. Johns-
ton were the w^orst man in the community, and it were
not possible to shake him off from the congregation by
regular process, it would be perilous to sanction irregu-
larity ; for that irregularity might be employed the next
time against a more deserving person.
I have studiously avoided personal references in this
discussion. Any other name might be substituted for
that of Mr, Johnston (except in the last paragraph), any
other minister, session and trustees for those of St. An-
drew's Church. It is a question in i/iesi, so far as I am
concerned, no matter what ecclesiastical personages
figured in it. But I should be justified in holding that
the very position of commanding influence, occupied by
St. Andrew's congregation, made it more imperatively
necessary for the ecclesiastical authorities in this case to
resist the slightest inroad upon their rights. Had it been
an obscure rural congregation that was involved, so mucli
c . .
84
injury to the Church could not result, as must result if
no restraint is put upon the trustees of St. Andrew's
Church. Although the prosecution wrk directed against
the Minister as well as the Trustees of the Congregation,
that I suppose was on account of the legal designation of
the Corporation, and I do not regard my con/rare^ Mr.
Lang, as necessarily to be held responsible for the course
of the defence : he is only one of many. 1 am loath to
believe, notwithstanding the evidence to the contrary in
this case, that a gentleman who stands so deservedly high
in the estimation not only of his own flock, but of the
public generally, for his heartiness, energy, public spirit,
and ready talents, should hazard injury to his influence
and reputation by advising a line of defence that, what-
ever temporary ends it could gain, could only react un-
favorably upon his own office as minister and moderator
of Session, as soon as the matter came to be thoroughly
understood.* It might be convenient to get rid of the
presence of a troublesome member of Session by cutting
the Grordian knot, Alexandrine fashion ; but I fain hope
Mr. Lang was no party to the act of the Trustees in
trampling upon the prerogatives of the Session and Pres-
bytery ; for while he is only accidentally a member of
the Trustees, it is essential to his office to be Moderator
of Session and a member of Presbytery. • • •
I do not know that it is necessary to give reasons for
this publication. Imj^artial readers, I believe will infer
♦ As in duty bound I was inclined to give Mr. Lnuii; tiio bciicttt of tho
doubt in this connection, althouf^h a witness friendly to liim testified that
the action of the Trustees was taken under a tlireat of resignation from t!ie
Minister. But since the above was written and set up, he intinuited at the
Presbytery the aquiesconee of the Session in the procedure of the Trusteeg,
and wished others to regard tiie two distinct bodies, tiie Session and Trustees,
as identical in the law suit. Of course, it does not follow that because tlie
Session were consenting parties to the action complained of, therefore that
action was not subversive of their authority. It only makes matters worse
by showing that the Session could condescend to disparage their own office
in order to get rid of Mr. Johnston when they found it difficult to <lo this by
mj action of their own,
BSUlt if
idrew's
against
'gatioii,
liion ol'
re, Mr.
course
oath to
:rary in
ly high
of the
c spirit,
fluence
t, what-
act un-
>derator
rouffhly
of the
cutting
in hope
stees in
id Pres-
mber of
>derator
.•:!■■ :./U^i i
sons for
ill infer
icttt of tho
stifled tliat
n from the
uted at th(!
V, TiiiHtoes,
d Tiii«ttos,
(ecause tin;
iiefore that
iters worse
own ottiit!
do this by
from the nature of the case that no other course was left
for me in consideration of my convictions and my ordina-
tion vows. This case was removed by the Plaintilfbeyond
the reach of ecclesiastical law, inasmuch as the Trustees
were a corporate body, recogni/ed by the law of the land,
and might have pleaded that they w^ere not answerable
to the Church Courts ; so that no opj)ortunity can otfer
for reviewing it before an ecclesiastical tribunal ; and un-
less it were exposed through the press, the gross violation
of the rights of our people would escape censure alto-
gether. The newspaper conductors of this country have
neither the knowledge of these matters necessary for deal
ing with them successfully, nor are the generality of their
readers sufficiently interested in such questions to make
it worth their while to give up their columns to discus-
sions upon them. But I can fancy what a storm of indig-
nation would find expression in the press of Scotland, if
the authorities of any church in that country, could have
ventured to violate the rights of a member and elder of
the church, as the St. Andrew's Church corporation has
done ! l^esides, in a letter to the Herald on the 10th Nov.
1873, to which I w^as not permitted to reply, Mr. Lang
challenged my declaration that " the rights of church
members " and " the prerogatives of spiritual courts "
were involved in this suit, — he replied that they " were
not in this particular instance endangered by the dealing
of the temporal authorities." As I felt it was scarcely a
proper thing to have carried on a public correspondence
on the question, even to the extent I did, when the mat-
ter was in the hands of the judge, I took no further steps
at that time to defend my position, and bore with as good
a grace as I could, the disadvantage under which I was
placed by the Ilera/d^s allowing Mr. Lang the last word.
But now that judgment has been rendered, I feel freed
from that restraint. "^' ** •
In that letter Mr. Lang also says, *' It is better that one
minister of the Gospel should not meddle or interfere wuth
m
the concerns of another." As Mr. Lang was careful not
to accuse me of doing so, but merely laid down a general
principle, in which I heartily concur, it is not necessary
for me to say anything in defence of my own particular
conduct in connection with this case and other cases in
which St. Andrew's Church has been concerned. When
the affairs of that congregation came from time to time
before the Presbytery, through internal dissensions, it
was always a most painful and disagreeable business to
have anything to do with them. But in a Presbyterian
church, congregations have no complete autonomy, as
they have in those churches maintaining the policy of
Independency ; but are only individual links in a chain,
each running into the other, and so forming parts of the
other. According to the constitution of our Church, each
congregation is in some measure responsible for every
other congregation's conduct. This is the theory of the
Church. Whether it is the best policy, ideally or not, is
not the question at issue. Mr. Lang's plea for being
allowed to manage the affairs of his congregation as he
pleases, is therefore directly in the face of the constitution
of the Church, even though the congregation were unani-
mous. So long as St. Andrew's congregation enjoys the pres-
tige and privileges that accrue to it from belonging to the
Presbyterian Church of Canada in, connection with the
Church of Scotland, it must accept the surveillance that the
Church imposes. The Synod assumes supreme jurisdic-
tion " in regard to all matters, ecclesiastical and spiritual,
over all the ministers, elders, church members, and congre-
gations under its care." And every member of Synod has
therefore the right to take cognizance of how congregations
carry out the principles of the Synod, and to draw the
attention of the Church courts to anything he may deem
irregular in congregational action. If any member of the
Presbytery has a right of his own motion thus to call at-
tention to the affairs of St, Andrew's Church, much more
(Jit^;
■ 'jlu
U'Oi:
I ?■•
; *, I H lii
8t
iful not
general
icessary
rticular
iases in
When
to time
lions, it
iness to
)yterian
)my, as
olicy of
El chain,
5 of the
ch, each
r every
^ of the
r not, is
r being
n as he
^titution
3 UHani-
the pres-
g to the
A^ith the
that the
jurisdic-
ipiritual,
1 congre-
'^nod has
egations
raw the
ly deem
3r of the
> call at-
ch more
has he the right when members of that congregation bring
these affairs under his notice, and call for judgment upon
them, to express his views regarding them. The right of
appeal to the Presbytery from the action of Sessions and
congregations has always been regarded as the palladium
of our Church — equally in the interests of minister and
people. And in this manner the " concerns " of St. An-
drew's Church have been brought before other ministers,
very much to their disgust, and they are not justly charged,
even by insinuation, with interfering in the affairs of that
congregation when they express their honest opinions
upon these affairs as brought regularly under the review
of the Prjsbytery. It fell to me, failing any one else,
to move more than once in the Presbytery, resolutions
vindicating Mr. Johnston ; and now I may be expec-
ted to defend my views, when they are assailed, out-
side the ecclesiastical courts. I can appeal to my past
record as a proof that I have always stood by my brethren
in tne maintenance of their rights ; but I do not think the
esprit du corps makes it necessary for a minister to endorse
any irregularities of which he may believe his confreres
gu ty. Further, I know for a fact that many judicious
laymen outside of St. Andrew's Church had their faith in
the wisdom of Kirk-Sessions considerably shaken by the
course taken by that of St. Andrew's Church in their
treatment of Mr. Johnston ; and therefore the interests of
the Church at large call for this protest aga'inst the part
they have taken in these transactione. No man of any
independence of mind or vigour of thought could be «,,ot
to accept the officfe of elder, it he were liable to be thrust
out of the Session by violence for maintaining firmly his
own opinions ; so that the future standing of Sessions de-
pends upon the vindication of Mr. Johnston's rights.
And if it be said that it is invidious in a clergyman to set
himself to criticise a decision of the civil courts, I have
only to reply, that 1 have myself sat as a judge (ecclesi-
iiiliflj
ftfitical) ott part 6f the case which Was bi'oiiglit tinder tke
notice of Mr. Justice Johnston, and therefore it is only
one judge maintaining his own position and criticising
the decision of another judge, which is no uncommon
thing in the domain of both civil and ecclesiastical
affairs.
: --^(-i
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