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ject of contention is not matter of doc- these qualifications. Some such power trine, but admittedly matter of disci- as this is to a greater or less extent pline. The proceedings of the Church enjoyed by every body corporate. Courts, which were made the subject Previous to the recent Municipal Reof litigation in the Court of Session, form Act, the absolute and irresponrelated to the internal management of sible power of election was vested in the Church of Scotland, as a body the corporations of the Scotch burghs corporate, created by statute.
-a power far more extensive and pecuIt may still be argued, however, that liar than that conferred on the Church one part of the Church's duty to her by statute, of taking trial of the qualispiritual head, consists in asserting and fications of candidates. Many corpo. maintaining to the utmost all the pri rations also exist, both in Scotland and vileges conferred on her as a national England, possessed of special privileges establishment. This we freely admit. and immunities, in which candidates It is her duty to maintain the privi- for admission are presented or nomileges and independence conferred on nated by some third party, indepenher by law-according to law_by dent of the corporation, but are tried all lawful means. But it cannot be her and admitted by the corporation itself. duty to assert or maintain privileges Every step that we advance tends inconsistent with law, which the law to confirm and illustrate the proposihas withheld or not conferred. And tion with which we started, that the Esaccordingly the argument just returns tablished Church of Scotland is in law to the point from which we set out nothing but an incorporation, however The only question which has truly harsh the phrase may sound. Let arisen, regards the nature and extent there be an end of mystification on of the privileges and jurisdiction con- this subject. If the Church has any ferred on the Church by statute. power or privilege inconsistent with
Let us shortly advert, then, to the the character of a corporation, any exnature and extent of the Church's sta- traordinary and anomalous exemption tutory powers and privileges. In the from civil jurisdiction or civil obedifirst place, she is the teacher of the ence, which raises her in law above the national religion, and superintendent character of an incorporation, let it be of all educational institutions; and in fairly announced, and let all men unthese matters her powers are exclusive. derstand from what source it is derived, By common law, independent of any or to what source at least it is ascribed. special enactment, she would, as a But it is unbecoming the dignity or corporation, be entitled to pass reso- the honesty of a national establishlutions, and to make rules and regula- ment, to indulge in vague and meaningtions for the guidance of her members, less boasting of powers undefined and so long as they were not inconsistent undefinable, too subtle for the comprewith the public law of the country. But hension of ordinary understandings, these consuetudinary privileges are not
conferred for unexplained purposes, extended, or even expressly recog- productive of unascertained effects, nised by any statute; far less has the ascribed at one time to divine authoLegislature conferred on the Church a rity and commission, at another to power of making ordinances, which the statutes of the realm, and at anshall be at once against the law and other still, to some immemorial usage above the law. Then as to the com- of which the evidence is not extant. position of the Church itself, some Again, we say, this is neither honest powers are conferred by the statutes nor decorous. If the advocates of the relative to the induction of ministers, opinions to which we refer, will fairly or (as would be said in the case of any put their case on the Acts of Parliaother incorporation) relative to the liament (to which they are now comadmission of new members ; but these pelled if our reasoning be sound), are not very extensive or various, the whole case may very soon be (though certainly most important,) be- brought to issue. Be it observed, ing confined to taking trial of the qua- we have not in the remotest degree lifications of candidates, and granting touched on the merits of the Auchteror refusing induction or admission, ac. arder cause—we have not said a word cording to the opinion which the Pres. on the construction of the statutes. bytery, as the executive officer of the But we hope we have brought our opincorporation, shall form respecting ponents to admit, that their case de
pends on the construction of the sta- terpretation of statute law-if the contutes. This admission once made, our struction of the Church be not conclu. task, or at least one portion of it, is sive and binding on all the liegesnear a close.
there must necessarily be some higher But the powers conferred on the tribunal to which the Church is amen. Church by the Acts of Parliament are able, and whose interpretation she is said to be so extensive, that though no bound to receive and adopt. When a Presbytery may directly interfere with patron and a presbytery, therefore, difcivil rights, yet in the exercise of these fer as to the limits of their respective powers they may, and often must, so rights and powers as regulated and de. act, that important civil consequences fined by Acts of Parliament, they must will follow-patrimonial benefit to one, of necessity submit their dispute to the and patrimonial loss or injury to an- decision of the court whose jurisdiction other. The Presbyteries do not main- is privative in the interpretation of tain, that they can simply refuse to re- statutes--that is, to the Court of Sesceive any candidate who is detiled with sion. what has been somewhat indecently But it is said that the present is a denounced as the “i leprosy of patron- question of jurisdiction, and that, in a age;" but they so read the Acts of competition of jurisdictions, neither of Parliament as to extract from them the courts claiming is the proper judge. power to make the veto law, and there. We do not admit either the truth of by indirectly to allow the people to the premises or the legitimacy of the defeat the choice of the patron. This conclusion. lst, There is no question we hope and believe is a fair represen- of jurisdiction ; for the Presbyteries tation of their construction of the sta- under the statutes are acting ministutes. But it does not concern our terially, not judicially. But let that present argument to enquire, whether pass. 2d, Supposing there were a it be a right, and sound, and legal con- question, whether the jurisdiction of struction, or whether the Parliament the Court of Session be excluded by a of Scotland really intended to confer privative jurisdiction vested in the such powers as the Church claims. Church Courts by statute---so far from It is enough for our purpose, that the the Court of Session being an incomclaim now advanced depends on the petent tribunal for the disposal of that construction of statute. The Church, question, the nature of the case renof course, cannot be surprised to find ders it the only competent tribunal. that an Act of Parliament may bear Every lawyer knows, and all men may two constructions, or that some other be made to understand, that the Suparty interested should think the preme Civil Court is the proper tribuChurch's construction wrong. What nal for disposing of questions of jurisis the consequence? The most Quix. diction, and that all matter of jurisdicotic champion of the Church's powers, tion is matter proper for the decision we should think, will hardly venture of that Court. Were it otherwise, no to maintain, that among the other such case could ever be extricated. privileges conferred by these Acts The Supreme Civil Court is entitled of Parliament, the Legislature has and bound to take gnisance of all made Church Courts interpreters of complaints, except where it can be statutes. This is the office of the civil shown that its jurisdiction is excluded. court in all countries, which, so far as The party who pleads the exclusion of we know, has never been abolished, the Court's jurisdiction, of course sub. derogated from, or transferred to other mits that question to the decision of hands; and it would surely require the Court. He does not stand aloof enacting words of special force and and refuse to plead at all, because he stringency, to create in the Church a knows well, that, if he were so obstirival power which should control the nate or so ill advised, judgment must Civil Court, or reign in conjunction go against him by default, and the with it over a divided empire. No strong arm of the law would compel implication, at least no provision of him to give obedience to that judge doubtful meaning, could be permitted ment. But he appears and pleads, to abrogate a principle which lies at and the Court disposes of the question the foundation of every known system of jurisdiction, either by dismissing the of jurisprudence. If, then, the Church complaint, or by sustaining its own jube not made its own judge in the in- risdiction and giving redress. In the
Is it pos
latterevent, wasit ever heard of that the they to sit in judgment on the statute, party who had pleaded the exclusion with power to interpret it only in one of the Court's jurisdiction, refused to way? On the contrary, their judgment abide by the Court's decision, or solicit- would be pronounced in respect of the ed the interference of the other Court construction which they themselves, as whose jurisdiction he had unsuccess- supreme interpreters of the law, put on fully attempted to support? This may that statute. But, again, if a rejected be illustrated by a familiar example. presentee complained that the PresbyJustices of Peace are by a certain sta- tery had violated the statute, and extute (the Small Debt Act, 6 Geo. IV.) ceeded its powers, what principle or empowered to dispose of actions for what consideration, in the name of law sums under £8:6:8 in a summary and of common sense, could exclude form, and all review of their judg- the Court from again, as before, judgments by the Court of Session is spe- ing of the construction of the statute ? cially excluded. It would be in vain, They would read it again, and, if they therefore, for the party defeated be. thought the complaint well founded, fore the Justices, to apply to the Court they would give redress just as they of Session for an alteration of their had done in the case of the Justices of judgment, on the general ground that Peace. Such was the complaint of it was contrary to law or evidence. Lord Kinnoul and Mr Young in the But
suppose such an application to be Auchterarder case, and such is the made, the Court of Session would be mode in which the Court disposed of it. called upon to decide the question of The powers and privileges of the jurisdiction, and this they would do by Church Establishment rest exclusively reading and interpreting the statute. on statute law; and the Court of SesAgain, suppose the party who lost his sion is the proper and legally consticause before the Justices, applied to the tuted interpreter of statute. Court of Session to set aside that sible then to dispute, that the statutes judgment, on the ground that the Jus- of the realm, as interpreted by the tices had exceeded their powers, or had Court of Session, are the measure of violated the provisions of the statute, the Church's powers--that the stathe Court would, as before, decide the tutes, as interpreted by the Court, must question of jurisdiction, by reading command the obedience of the Church and construing the statute ; and if they as completely as if the Legislature had found that the Justices had exceeded spoken so unambiguously as not to re. their powers, they, as interpreters of quire the intervention of an interprethe statute, would determine accord. ter? The construction of the Court is ingly, and set aside the judgment com- part of the statute—it is law. plained of, notwithstanding the exclu. What then becomes of the collI. sion of review by the statute. The Sion between the civil and ecclesiastiJustices might have read the statute cal courts? The latter are bound to differently ; but their opinions could obey the statute as interpreted by the not interfere with the judgment of the former, and the Church may be comCourt of Session, as supreme and un- pelled to obedience by physical force, controlled interpreter of the law. Just which the constitution has furnished so is it with Presbyteries of the her with no means of resisting. ColChurch. By virtue of certain statutes lision! This is the collision between a they exercise (on the hypothesis) cer- sovereign and his subject, between the tain jurisdiction in the trial and admis- law and the lieges, between the judge sion of ministers. If a rejected pre- and the litigant. sentee brought a judgment of the Pres- Our readers cannot fail to have obbytery under review of the Court of served, that we have avoided entering Session, and pleaded that he was on the merits of the Auchterarder wrongously rejected on the ground of case, and our motive to this course heresy, praying the Court to take trial must be obvious; for if the Court be of his orthodoxy, and reverse the judg- entitled, as we venture to think we ment of the Presbytery, it is to be pre- have demonstrated, to instruct the sumed that the application would be Presbyteries of the Church in the dismissed, and the Court would find meaning of Acts of Parliament, and to that their jurisdiction is excluded by define and explain the duties thereby statute. But would they decide this imposed on Presbyteries, it is enough without reading the statute, or are for our present argument, that judg
ment has been given to a certain ef- ness or relevancy of the grounds of fect on the import of these statutes. objection. Such was the Veto Act. That judgment must, of course, com- Under its operation, Mr Young, who mand the obedience of Presbyteries as was duly presented by Lord Kinnoul subjects of the realm. But, in order to the church and parish of Auchter. to a precise understanding of the po- arder, was objected to by a majority sition assumed by the Church since of the male heads of families, com. the judgment of the House of Lords, municants within the parish, (who it may be necessary in a few words to assigned no reasons in support of state, what we conceive to have been their objections,) and in respect of the question raised and determined in these objections he was rejected by the the Auchterarder case.
Presbytery, who refused to proceed to By the Act 1592, c. 116, which has take trial of his qualifications, in terms always been considered and looked of the Acts of Parliament. Lord Kinup to as the great charter of the Pres- noul and Mr Young were advised that byterian Church in this country, the this rejection was unauthorized by trial and admission of ministers is law, and that the Presbytery had no committed to Presbyteries, with full warrant for refusing to perform its powers to judge of the qualifications statutory functions. They accordingof any party presented to them by a ly complained of this alleged breaking patron, but under this most emphatic of the law to the Supreme Civil Court, and significant proviso, “ Provided as the only tribunalin Scotland compethe foresaid Presbyteries be bound tent to the decision of such a question of and astricted to receive and admit statutory duty and statutory privilege. qubatsumever qualified minister pre- The patron and presentee pleaded on sented be his Majesty or laick pa- the statutes, maintaining that the trones." This Act is admitted to be powers of the Presbytery were limited in force, and we need not trace the to the matter of qualification. The history of the law of patronage in the Presbytery also pleaded on the stainterval between 1592 and 1690. But tutes, contending for a different and in the latter year the Presbyterian more liberal interpretation, and speChurch was again made the Church cially justifying the rejection of Mr of the State, and the rights formerly Young, on the ground that the Church vested in patrons were transferred to had power, under the statutes, to give other hands, viz. to the heritors and such effect to the Veto of the congreelders. A new machinery was called gation. The Court of Session found, into existence for the extrication of
" That the defenders, the Presbytery these new rights and arrangements ;
of Auchterarder, did refuse, and continue but the whole system worked so ill, that
to refuse, to take trial of the qualifications it was declared “ inconvenient” by
of the said Robert Young, and have rethe statute 10 Anne, which restored jected him as presentee to the said church patrons to their “ ancient rights” of and parish, on the sole ground (as they presenting “ qualified ministers" to
admit on the record) that a majority of the various benefices, and of new the male heads of families, communicants bound and obliged the Presbyteries, in the said parish, have dissented, without as under the Act 1592, c.116, to “re. any reason assigned, from his admission ceive and adınit" them, after taking as minister, - Find that the said Presbytrial of their qualifications. In 1834, tery in so doing have acted to the hurt the General Assembly declared the and prejudice of the said pursuers, illegally, Church's resolution not to receive and and in violation of their duty, and contrary admit any minister who should prove to the provisions of certain statutes to be unacceptable to a certain portion libelled on, and, in particular, contrary to of the people of the parish to which
the provisions of the Statute of 10 Anne, c. he should be presented, and there was
xii., entituled, “ An Act to restore patrons at the same time framed a set of re.
to their ancient rights of presenting minisgulations, by which Presbyteries are
ters to the churches vacant in that part of enjoined to reject every presentee to
Great Britain called Scotland.'” whom a majority of male heads of fa- The House of Lords have unhesitamilies, communicants within the pa- tingly, and without qualification or rerish, shall object, without the necessity servation, affirmed this judgment, and of their assigning reasons, or of the it is therefore now settled law, that the Presbytery judging of the reasonable- General Assembly's Act of 1834 can.
not be enforced consistently with the Parliament as a humble suppliant ? performance of the duty of presbyte. Did any subject of a state ever apply ries under the statutes. It is solemnly to the Legislature for powers and pridecided, after a full, deliberate, and vileges, which in the mean time, unprecedentedly laborious discussion, without the Legislature's sanction, and that the circumstance of a presentee in despite of the supreme civil authority, being unacceptable to the people of a he was exercising by masterful usurpa parish, forms no legal bar to his in- ation ? Would it be decorous, would duction, and that no Presbytery is en- it be expedient, would it be consistent titled to give effect to the people's dise with the principles of morality and like, by rejecting the presentee who is religion, would it tend to further the its object. If this, then, be intrusion— great end of the Church's existence if being unacceptable to a majority be, in connexion with the State, that while, in the eyes of the Church, a sulficient with an arrogant assumption of indedisqualification, though no grounds of pendence, the Church bid defiance to objection are stated—and if, in such a
the supreme executive authority, and case, they consider it intrusion to in
contemned its orders, she should at duct a presentee, then the import of the same time humbly solicit, or rethe Court's judgment is, that no spectfully importune, the Legislature Presbytery can legally refuse (if so to make new laws for the regulation required) to INTRUDE a duly presented of ecclesiastical concerns, to which, of and duly qualified minister into a pa- course, she will conform so long only as rish, on the general ground of his it suits her own views of ecclesiastical being unacceptable to the people, or a 'expediency or ecclesiastical ambition portion of the people.
-as if laws were made only to be By thejudgment in the Auchterarder broken, or as if Parliament would lend case, therefore, the Church was suffici.
a ready ear to the petition of him who ently certiorated that the passing of the has already set at nought the power of Veto Act was contrary to law, and ultra Parliament, by refusing obedience to vires of the Assembly; and that the re- the statute law of the realm ? jection of a presentee by a Presbytery, have put this case hypothetically only; under the operation of that Act, is il- but let us see what is the attitude legal. In these circumstances two which the Church has in fact assumed. courses were open, either of which, The General Assembly, in May we apprehend, would have been con- 1839, took into their consideration the sistent with the dignity and the indepen- judgment of the House of Lords in the dence of the Church, neither of which
Auchterarder case, and this is their would have subjected her to the charge deliverance:of disobedience and rebellion. Viewing the existing state of the law as an " The General Assembly having heard intolerable evil, she might fairly, the report of the Procurator on the Auchhonourably, and consistently apply to
and considered the judgment Parliament for an alteration of the law, of the House of Lords, affirming the deci. and for a legislative sanction of what is sion of the Court of Session, and being called the principle of non-intrusion.
satisfied that by the said judgment all On the other hand, if a recurrence
questions of civil right, so far as the to the practice which obtained before Presbytery of Auchterarder is concerned, 1834, turned out after all no such
are substantially decided, do now, in ac
cordance with the uniform practice of the mighty evil as in the heat of contro
Church, and with the resolution of last versy it had been represented, or if the
General Assembly, ever to give and insuccess of an application to Parliament seemed doubtful or hopeless- sions of Civil Courts, in regard to the civil
culcate implicit obedience to the deci. full, unqualified, ungrudging obedience rights and emoluments secured by law to to the law, and to the Civil Court as the the Church, instruct the said Presbytery interpreter of the law, was the high to offer no farther resistance to the claims imperative duty of the Church, both of Mr Young or the patron, to the emoluas a Christian Church and as the
ments of the benefice of Auchterarder, Church of a Christian State. And is and to refrain from claiming the jus devothis submission, this Christian obedi. lutum, or any other civil right or privilege ence to the civil power, the less ne- connected with the said benefice. cessary or the less obligatory, because “And whereas the principle of non-intruthe Church has resolved to approach sion is one coeval with the Reformed Kirk