Page images

we have endeavoured to describe, are there any materials for a collision between that court and a Church Court? Is there in the latter any power which can control the proceedings of the former, or any power which is equal in kind, that is, constitutionally if not actually equal, to the powers of the civil court?

1st, It will be readily conceded to us, that the Church Courts have no powers of execution, no means of enforcing their own orders. Disobedience of such orders infers no penal consequences, by imprisonment or otherwise. But, 2d, It necessarily follows from this defect, as well as from the confined and exclusive char. acter of ecclesiastical jurisdiction, that a Church Court cannot competently issue any decree which may be carried into effect only by the use of physical force. To ordain payment or performance is, therefore, clearly beyond the power of such a spiritual court; and it is equally so to provide a remedy, or to give redress for any personal or patrimonial wrong. 3d, From the defect of power first noticed, it also follows that Church Courts have no preventive or prohibitory power; for an interdict or an injunction which cannot be enforced, is something like a contradiction in terms. Lastly, we take leave to doubt whether Church Courts have any penal jurisdiction, properly so called. Not that we would venture to dispute the powers of the Church to inflict ecclesiastical censures, and to proceed to deprivation or suspension of ministers and licentiates, on certain well ascertained and peculiar grounds. In this popular sense, the Church Courts may be said to punish members of the Church. But that is a very different matter from the infliction of punishment by a court of law-different both in character and effect. That is not the administration of public justice; but rather is closely analogous to, if not identical with, the management of the internal concerns of an exclusive body, incorporated by statute, and invested with certain privileges and immuni


We know that this view of their position is by no means palatable to many zealous and influential members of the Church, and it may, at first sight, stagger even some of our most unbiased readers. But far from dread

ing to subject our opinions to the test of discussion, we are satisfied that the theory which we now propound is at once so simple, so intelligible, and so rational, that any thing like a dispassionate consideration of the subject must ensure its cordial reception.

THE CHURCH, then-that is, the Church of Scotland-in connexion with the State, whose ministers have by law an indefeasible right to a maintenance out of the teinds, and are recognised as the accredited organs of the State in teaching the national religion and superintending the education of the people-to the benefit of whose ministrations every Scottish subject has by law an undoubted title

the Church, which the Sovereign has solemnly sworn to maintain as an integral part of the Constitution, and which, on the other hand, has sworn allegiance to the Sovereign, not only as an individual, but as representing the majesty of the law-the Church, which looks to the law to provide for the security of her privileges and immunities, and demands from the State, as matter of right, an extension of her means of usefulness, at the expense of the State, to meet the wants of an increasing population-this Church, we say, as distinct from the Catholic Church of Christ, of which she is a noble branch, is in law an incorporation, created by the law for the achievement of most important ends, subject, like every other individual or body corporate, to the supreme civil authority, in all cases where she does not enjoy some express privilege or exemption. The distinction at which we point, has been eloquently and forcibly explained by the venerable President of the Court of Session, in his late solemn and most impressive address to the Presbytery of Dunkeld.


"I think," he says, 66 much confusion tinguishing between her situation as has lately arisen from the Church not disportion and member of the Universal or Catholic Church of Christ, and her situation as the Established Church of Scotland. In the first view, that you are a branch, and a most numerous and most respectable one, of the Universal Church of Christ, you are on the same footingbut on no better footing-with all the other bodies adhering to the Presbyterian form of church government throughout the country. Taking you in your character as merely members of the Church of

[blocks in formation]

From the obvious and indisputable soundness of this reasoning, it might fairly be presumed that the Church's claim to exclusive and independent jurisdiction, must be rested entirely on the statutes to which she owes her exist ence as a national establishment. But of late some doctrines have been obscurely hinted at, and some opinions pretty freely indicated, which, as they are startling in the announcement, are still more alarming in their consequences. It seems to be maintained, that there resides in the Church of Scotland some undefinable, but inherent and indefeasible authority, derived from the Saviour himself as Head of the Church, in the exercise and maintenance of which, all considerations of expediency, and all reverence for civil government, must be abandoned and forgotten. We are deeply anxious to understand this doctrine, and we shall analyse it with care. If the Church have a duty to perform to her spiritual head, which is inconsistent with obedience to the civil law of the country, one of two conclusions is in evitable either the Church has allied herself with a Government which is unfit for union with a Christian Church, or there is something in the character of the Christian religion itself, which renders an alliance of the Church with the State improper or inexpedient. The element of disunion must reside in the one party or the other. Now, the latter of these alternatives, it will be observed, is directly subversive of the whole argument in support of civil establishments of religion; but it is also something worse-it is obviously a libel on the Gospel to say, that Jesus Christ founded a church which could not exist in union with the freest and most perfect civil government that the world ever saw. It is irreverent, if not blasphemous, to maintain or believe that the Gospel dispensation, the Gospel of peace, imposes duties inconsistent with civil obedience-that the

faithful and uncompromising minister of Christ may, or must, be a rebellious and disobedient subject. No minister of the Church of Scotland, we are well assured, will persevere in entertaining or promulgating such an opinion. But is there any thing in the constitution of this country, or in its existing laws, which renders it unfit for an alliance

with a branch of the Catholic Church?

There is no new element in the Constitution, no fundamental principle of Government, which did not exist when the alliance was formed in 1592, or when it was renewed at subsequent periods; and the rights and privileges of the Church are, down to the present day, regulated by the statutes passed on these occasions. We shall consider by-and-by how far the Church herself has recently maintained and performed the conditions on which she originally received the protection and support of the State.

But we may, after all, misunderstand the views of some of our clerical friends as to the nature of the duty imposed, and the authority conferred on them by their Divine Master, to resist the civil power in certain cases. It may be, that no more is meant than the duty and authority to preach the Gospel in spite of all opposition, and to maintain and defend the faith in the face of the cruelest intolerance and persecution. Surely this is not the day when such doctrines need be pressed on the public attention, or the mind of the Legislature. Fear of persecution can hardly be the inductive cause of any recent movement in the Church. But, besides, if such be the true meaning of the opinions to which we have referred, what connection have they with the recent proceedings of the Church, or how can they be used in defence of the Church's present disobedience of the civil law? There is no question of doctrine raised. There is no proposal on the part of the Court of Session to remodel the Confession of Faith, or to interfere with the office of the Church in expounding its doctrines. That standard of orthodoxy is part and parcel of the Treaty of Union between England and Scotland; and an invasion of the Church's exclusive privileges, as the National Teacher of Religion, would be high treason against the Constitution, But it is not alleged that any such violence is threatened. The sub

ject of contention is not matter of doctrine, but admittedly matter of discipline. The proceedings of the Church Courts, which were made the subject of litigation in the Court of Session, related to the internal management of the Church of Scotland, as a body corporate, created by statute.

It may still be argued, however, that one part of the Church's duty to her spiritual head, consists in asserting and maintaining to the utmost all the privileges conferred on her as a national establishment. This we freely admit. It is her duty to maintain the privileges and independence conferred on her by law according to law-by all lawful means. But it cannot be her duty to assert or maintain privileges inconsistent with law, which the law has withheld or not conferred. accordingly the argument just returns to the point from which we set out. The only question which has truly arisen, regards the nature and extent of the privileges and jurisdiction conferred on the Church by statute.


Let us shortly advert, then, to the nature and extent of the Church's statutory powers and privileges. In the first place, she is the teacher of the national religion, and superintendent of all educational institutions; and in these matters her powers are exclusive. By common law, independent of any special enactment, she would, as a corporation, be entitled to pass resolutions, and to make rules and regulations for the guidance of her members, so long as they were not inconsistent with the public law of the country. But these consuetudinary privileges are not extended, or even expressly recognised by any statute; far less has the Legislature conferred on the Church a power of making ordinances, which shall be at once against the law and above the law. Then as to the composition of the Church itself, some powers are conferred by the statutes relative to the induction of ministers, or (as would be said in the case of any other incorporation) relative to the admission of new members; but these are not very extensive or various, (though certainly most important,) being confined to taking trial of the qualifications of candidates, and granting or refusing induction or admission, according to the opinion which the Presbytery, as the executive officer of the incorporation, shall form respecting

these qualifications. Some such power as this is to a greater or less extent enjoyed by every body corporate. Previous to the recent Municipal Reform Act, the absolute and irresponsible power of election was vested in the corporations of the Scotch burghs -a power far more extensive and peculiar than that conferred on the Church by statute, of taking trial of the qualifications of candidates. Many corporations also exist, both in Scotland and England, possessed of special privileges and immunities, in which candidates for admission are presented or nominated by some third party, independent of the corporation, but are tried and admitted by the corporation itself.

Every step that we advance tends to confirm and illustrate the proposition with which we started, that the Established Church of Scotland is in law nothing but an incorporation, however harsh the phrase may sound. Let there be an end of mystification on this subject. If the Church has any power or privilege inconsistent with the character of a corporation, any extraordinary and anomalous exemption from civil jurisdiction or civil obedience, which raises her in law above the character of an incorporation, let it be fairly announced, and let all men understand from what source it is derived, or to what source at least it is ascribed. But it is unbecoming the dignity or the honesty of a national establishment, to indulge in vague and meaningless boasting of powers undefined and undefinable, too subtle for the comprehension of ordinary understandings, conferred for unexplained purposes, productive of unascertained effects, ascribed at one time to divine authority and commission, at another to the statutes of the realm, and at another still, to some immemorial usage of which the evidence is not extant. Again, we say, this is neither honest nor decorous. If the advocates of the opinions to which we refer, will fairly put their case on the Acts of Parlialiament (to which they are now compelled if our reasoning be sound), the whole case may very soon be brought to issue. Be it observed, we have not in the remotest degree touched on the merits of the Auchterarder cause-we have not said a word on the construction of the statutes. But we hope we have brought our opponents to admit, that their case de

pends on the construction of the statutes. This admission once made, our task, or at least one portion of it, is near a close.

But the powers conferred on the Church by the Acts of Parliament are said to be so extensive, that though no Presbytery may directly interfere with civil rights, yet in the exercise of these powers they may, and often must, so act, that important civil consequences will follow-patrimonial benefit to one, and patrimonial loss or injury to another. The Presbyteries do not main tain, that they can simply refuse to receive any candidate who is defiled with what has been somewhat indecently denounced as the "leprosy of patronage; but they so read the Acts of Parliament as to extract from them power to make the veto law, and thereby indirectly to allow the people to defeat the choice of the patron. This we hope and believe is a fair representation of their construction of the statutes. But it does not concern our present argument to enquire, whether it be a right, and sound, and legal construction, or whether the Parliament of Scotland really intended to confer such powers as the Church claims. It is enough for our purpose, that the claim now advanced depends on the construction of statute. The Church, of course, cannot be surprised to find that an Act of Parliament may bear two constructions, or that some other party interested should think the Church's construction wrong. What is the consequence? The most Quixotic champion of the Church's powers, we should think, will hardly venture to maintain, that among the other privileges conferred by these Acts of Parliament, the Legislature has made Church Courts interpreters of statutes. This is the office of the civil court in all countries, which, so far as we know, has never been abolished, derogated from, or transferred to other hands; and it would surely require enacting words of special force and stringency, to create in the Church a rival power which should control the Civil Court, or reign in conjunction with it over a divided empire. No implication, at least no provision of doubtful meaning, could be permitted to abrogate a principle which lies at the foundation of every known system of jurisprudence. If, then, the Church be not made its own judge in the in

terpretation of statute law-if the construction of the Church be not conclusive and binding on all the liegesthere must necessarily be some higher tribunal to which the Church is amenable, and whose interpretation she is bound to receive and adopt. When a patron and a presbytery, therefore, differ as to the limits of their respective rights and powers as regulated and de. fined by Acts of Parliament, they must of necessity submit their dispute to the decision of the court whose jurisdiction is privative in the interpretation of statutes-that is, to the Court of Session.

But it is said that the present is a question of jurisdiction, and that, in a competition of jurisdictions, neither of the courts claiming is the proper judge. We do not admit either the truth of the premises or the legitimacy of the conclusion. 1st, There is no question of jurisdiction; for the Presbyteries under the statutes are acting ministerially, not judicially. But let that pass. 2d, Supposing there were a question, whether the jurisdiction of the Court of Session be excluded by a privative jurisdiction vested in the Church Courts by statute-so far from the Court of Session being an incompetent tribunal for the disposal of that question, the nature of the case renders it the only competent tribunal. Every lawyer knows, and all men may be made to understand, that the Supreme Civil Court is the proper tribuhal for disposing of questions of jurisdiction, and that all matter of jurisdiction is matter proper for the decision of that Court. Were it otherwise, no such case could ever be extricated. The Supreme Civil Court is entitled and bound to take cognisance of all complaints, except where it can be shown that its jurisdiction is excluded. The party who pleads the exclusion of the Court's jurisdiction, of course sub. mits that question to the decision of the Court. He does not stand aloof and refuse to plead at all, because he knows well, that, if he were so obstinate or so ill advised, judgment must go against him by default, and the strong arm of the law would compel him to give obedience to that judgment. But he appears and pleads, and the Court disposes of the question of jurisdiction, either by dismissing the complaint, or by sustaining its own jurisdiction and giving redress. In the

they to sit in judgment on the statute, with power to interpret it only in one way? On the contrary, their judgment would be pronounced in respect of the construction which they themselves, as supreme interpreters of the law, put on that statute. But, again, if a rejected presentee complained that the Presbytery had violated the statute, and exceeded its powers, what principle or what consideration, in the name of law and of common sense, could exclude the Court from again, as before, judging of the construction of the statute? They would read it again, and, if they thought the complaint well founded, they would give redress just as they had done in the case of the Justices of Peace. Such was the complaint of Lord Kinnoul and Mr Young in the Auchterarder case, and such is the mode in which the Court disposed of it.

latter event, was it ever heard of that the party who had pleaded the exclusion of the Court's jurisdiction, refused to abide by the Court's decision, or solicited the interference of the other Court whose jurisdiction he had unsuccessfully attempted to support? This may be illustrated by a familiar example. Justices of Peace are by a certain statute (the Small Debt Act, 6 Geo. IV.) empowered to dispose of actions for sums under £8:6:8 in a summary form, and all review of their judgments by the Court of Session is specially excluded. It would be in vain, therefore, for the party defeated before the Justices, to apply to the Court of Session for an alteration of their judgment, on the general ground that it was contrary to law or evidence. But suppose such an application to be made, the Court of Session would be called upon to decide the question of jurisdiction, and this they would do by reading and interpreting the statute. Again, suppose the party who lost his cause before the Justices, applied to the Court of Session to set aside that judgment, on the ground that the Justices had exceeded their powers, or had violated the provisions of the statute, the Court would, as before, decide the question of jurisdiction, by reading and construing the statute; and if they found that the Justices had exceeded their powers, they, as interpreters of the statute, would determine accordingly, and set aside the judgment complained of, notwithstanding the exclusion of review by the statute. Justices might have read the statute differently; but their opinions could not interfere with the judgment of the Court of Session, as supreme and uncontrolled interpreter of the law. Just so is it with Presbyteries of the Church. By virtue of certain statutes they exercise (on the hypothesis) certain jurisdiction in the trial and admission of ministers. If a rejected presentee brought a judgment of the Presbytery under review of the Court of Session, and pleaded that he was wrongously rejected on the ground of heresy, praying the Court to take trial of his orthodoxy, and reverse the judgment of the Presbytery, it is to be presumed that the application would be dismissed, and the Court would find that their jurisdiction is excluded by statute. But would they decide this without reading the statute, or are


The powers and privileges of the Church Establishment rest exclusively on statute law; and the Court of Session is the proper and legally constituted interpreter of statute. Is it possible then to dispute, that the statutes of the realm, as interpreted by the Court of Session, are the measure of the Church's powers-that the statutes, as interpreted by the Court, must command the obedience of the Church as completely as if the Legislature had spoken so unambiguously as not to require the intervention of an interpreter? The construction of the Court is part of the statute-it is law.

What then becomes of the COLLISION between the civil and ecclesiastical courts? The latter are bound to obey the statute as interpreted by the former, and the Church may be compelled to obedience by physical force, which the constitution has furnished her with no means of resisting. Collision! This is the collision between a sovereign and his subject, between the law and the lieges, between the judge and the litigant.

Our readers cannot fail to have observed, that we have avoided entering on the merits of the Auchterarder case, and our motive to this course must be obvious; for if the Court be entitled, as we venture to think we have demonstrated, to instruct the Presbyteries of the Church in the meaning of Acts of Parliament, and to define and explain the duties thereby imposed on Presbyteries, it is enough for our present argument, that judg

« PreviousContinue »