1938. and parish of Auchterarder, and expressly on the ground CHAP. VIIL that the said presbytery cannot, and ought not to do so, in respect of a veto of the parishioners, was illegal and injurious to the patrimonial rights of the pursuer, and contrary to the provisions of the statutes and laws libelled."

The sum

mons as

sumes a part of the to prescribe the Presby

right on the

civil court

its duty to

tery.

The thing assumed in this "amendment of the libel" is obviously neither more nor less than this-that even in matters confessedly spiritual, in matters for handling which it is on all sides allowed that the presbytery "is the only legal and competent court," the court of session is entitled to interfere, to the effect of prescribing to the presbytery its duty. And as the right to prescribe a duty would seem to imply the right to enforce the performance of it, the claim now made in the Auchterarder case, if followed out in the manner indicated by the pursuers, could involve nothing short of the total subversion of the church's spiritual independence. Her courts, on the footing on which that claim, if conceded in the sense and to the extent contemplated by the pursuers, must inevitably place them, would become the mere executors of the decrees of the Consequences of court of session; dispensing, at the bidding of Cæsar, the things of God,-giving or withholding ordination, and by consequence all other spiritual functions and privileges,not in deference to what they judged to be the revealed will of their divine Master, Christ,-but in deference to another master altogether, to one who enforced his decisions, not by appealing to conscience and a divine directory, but simply and shortly by the pains and penalties of civil law. The judges of the first division of the court of session having pronounced an order that this important cause should be argued before the whole court, the pleadings were opened on the 21st of November, 1837, and concluded on the 12th of the succeeding month. On the 27th of February following, the bench began to deliver their judicial opinions,-

-

that assump

tion.

The case

opened 21st Nov. 1837,

and decided

8th March,

1838.

CHAP. VIII. and on the 8th of March, the sentence of the court was 1838.

The printed report of the

case.

given. These dates alone are sufficient to indicate the
importance that was attached to the matters in dispute.
Whatever may be thought or said of the decision, it cer-
tainly was not arrived at without the expenditure of an
amount of time and pains worthy of the great interests and
momentous consequences it involved.

When the fact is considered that the printed report of
the case occupies two well-sized octavo volumes, the diffi-
culty will perhaps be seen and sympathized in of selecting
and stating, with the needful brevity, the points material to
the main question at issue. "One might naturally ex-
Rutherford's pect," observed Solicitor-General Rutherford, in opening his
the intricacy learned and most lucid reply on the part of the respondents,
of the plead-
ings. "that in a discussion of this kind the ground should be

Solicitor

General

remarks on

narrowed as the debate advanced, -that the lists should be contracted in the hour, as it were, of mortal strife. But it often happened otherwise, and in this case remarkably so; for the field grew wider and more wide as the conflict was prolonged; position after position was taken up by both parties, till at last they were in danger of abandoning altogether the points on which alone the contest turned." If even the accomplished lawyers who conducted the case had thus all but lost their way in the labyrinthine mazes which legal subtlety and ingenious special pleading had contrived to gather around it, no wonder that the unprofessional student of their learned lucubrations should experience some little bewilderment in attempting to follow them. Reference has been already made to the important change that was effected upon the original form of the action. Not a little attributable of the intricacy which characterized the pleadings at the tions made bar, as well as the opinions of the bench, was due to that

The intri

cacy chiefly

to the altera

upon the

summons.

change. The civil conclusions about the validity of the
presentation and the disposal of the stipend still stood upon

The real that was

question

debated at

the bar.

use which

1838. the face of the action, and furnished to the counsel for the CHAP. VIII. pursuers plentiful materials for an argument in support of the court's title to try the cause. In point of fact, however, these purely civil conclusions were practically superseded and set aside by the new matter which had been subsequently introduced into the summons, and the real question which alone the court had to deal with was one of jurisdiction. The question which came to be debated was not-who is the legal patron? or who has a legal title to the fruits of the benefice?-but, what is the duty of the presbytery? And although the conditions of the argument, as agreed upon by both parties at the bar, were such as to preclude the pursuers from founding anything whatever upon the original conclusions of the action; though these conclusions were to be held as in reality out of court,—yet were they continually and dexterously resorted to by the Dexterous prosecutors, so as both to perplex and to prejudice another the pursu question with which they had nothing to do. But more than this, not only was the real point in dispute unfairly overlaid in the argument by considerations which were borrowed from an irrelevant source, but there was a want of candour and directness in the way in which the one point laid down for discussion was approached. When the original summons sought to have it found that either the patron, Lord Kinnoull, or, alternatively, his presentee, Mr. Young, was entitled to the fruits of the benefice,-there were corresponding petitory conclusions attached to these demands. The court was craved, in the event of their deciding in favour of the claim of either of the pursuers, to ordain the heritors to pay the stipend to the successful litigant, and to restrain all other claimants from molesting him in the enjoyment of it. All this was simple and intelligible: the court was asked to find that a certain wrong had been done, the remedy for that wrong was distinctly named, and the court was called

er's counsel

made of the complexity

of the sumi

mons.

CHAP. VIII. on to grant the remedy. Not so, however, in regard to the 1835. new and altogether different question of the duty of the The amend presbytery, introduced into the action by the amended sum

ed summons

called upon mons, and which came, as has been already explained, to

the court to

declare ab- be in fact the only question the court was asked either to

stractly, and

apart from consider or to decide. In connection with this new matter any practical

was the duty

result, what introduced into their action, there was no corresponding
of the Pres-petitory conclusion put forward by the pursuers at all. The
bytery.
demand made upon the court was to declare nakedly and
abstractly, and altogether apart from any practical result,
what was the duty of the presbytery. The pursuers did not
venture to say, 66
'the presbytery have committed a wrong
against Mr. Young, in rejecting him as they have done, and
in refusing to proceed any farther with his settlement as
minister of the parish of Auchterarder, and we call on the
civil court to give him redress by requiring the presbytery,
under the pains of law, to set their own sentence rejecting
him aside, and to proceed to ordain and admit him notwith-
standing." Had they taken this bold and manly course,
both the bar and the bench would have known what they
were dealing with, and all parties would have been compelled
to come at once to the point. As it was, the true character
Church sus of the conflict was never more than half disclosed, and the

Disadvan

tage the

tained from

this mode of responsibility of fairly facing it was to a large extent evaded.
proceeding.
Had the court from the very first been challenged by the
pursuers, not merely to lay down a doctrine, but to act upon
and enforce that doctrine,-not merely to assume a compe-
tency to prescribe their duty, in matters ecclesiastical, to
church courts, but actually, by civil process, to compel the
performance of that duty, that is, to compel ordination, by
the rude arguments of fine and imprisonment-the solicitor-
general would have had less occasion to complain of the dis-
cursiveness and irrelevancy of the debate. The lists would
in that case have been contracted from the beginning. Just

1838. because it would then have been manifest to all that the CHAP. VIIL strife was mortal-that it involved nothing less than a life or death struggle, not for the veto-law, but for the church's right of self-government, for the very soul and essence of her spiritual freedom-there would have been neither time nor taste for those "tricks of fence," those nice but needless displays of legal swordmanship which, after much noiso and beating of the air, and confounding of the uninitiated, left the real merits of the question untouched and often unapproached.

Whether this insidious and stealthy mode of carrying their point, was the result of a preconcerted plan on the part of those who managed the case for the pursuers, it is useless to inquire. There can be no reasonable doubt that it much contributed to their ultimate success. It introduced the narrow end of a wedge, which afterwards had only to be driven home, in order to rend asunder the liberties of the church of Scotland. Seeing that the action came to be thrown into the shape that has now been described,—the shape "purely and simply of an action of declarator against the legality of the proceedings of the presbytery under the act of assembly,"* it has been sometimes alleged that the church betrayed her own position and principles in consent ing to appear and to plead before the civil court at all. This, however, is obviously a mistake. The church was clearly called upon, and had an undoubted interest to show, if she could, that the law passed in 1834, and which had governed the decision of the presbytery of Auchterarder in rejecting Mr. Young, was not ultra vires of those powers which the law of the land had ratified, and that it did not violate any of those civil rights which the law of patronage had conferred either on patrons or their presentees. It was

*Rutherford's Reply, p. 347.-Robertson's Report.

An insidious mode of assailing the jurisdiction Church.

and stealthy

of the

Did the

Church com

promise her independence by.

consenting

to plead at

all?

The reasons

which made

it the duty Church to plead.

of the