an's motion 1838 matters spiritual to which she designed her law to apply by CHAP. VIIL the judgment of the court of session. After a lengthened Mr. Buchanand animated debate, Mr. Buchanan's motion was adopted upon a division by a majority of 41,-the numbers being 183 to 142. Dr. Cook had added to his amendment a clause recommending that the court of session's decision in the Auchterarder case, should be carried by appeal to the house of lords. The time, however, for considering and disposing of that question had not yet arrived; and accordingly, the successful motion had very properly taken no notice of it whatever. It was not, then, in any tangible or relevant form before the house. It came on, however, in due order, the following day, by a reference from the synod of Perth and Stirling. That synod having been applied to, as already mentioned, by the presbytery of Auchterarder for advice, as to the course which ought to be taken in regard to Mr. Young's memorial and notarial protest, instead of giving any judgment of its own, had very properly handed the whole case forward to the general assembly. As the judgment of the court of session in the Auchterarder case formed part of the record thus laid before the assembly, the proper opportunity was thus presented for deciding whether to appeal it or not. On that particular point, there was neither difficulty nor difference of opinion. The same reasons which made it right and necessary for the church to follow the case into the court of session, made it equally right and necessary to have that court's judgment reviewed in the court of last resort-the house of lords. There was another question, however, not so easy of adjustment,-the question, namely-What was to be done with Mr. Young? Was he to be permitted with impunity to threaten his ecclesiastical superiors with actions of damages, because they had refused to violate the laws of the church? In carried by 183 to 142. The proposal arder case to the House agreed to. of Lords What was to be done with Mr. Young? - CHAP. VIII. making himself a party to the summons in the Auchterarder 1833. case at all, he might fairly be held to have exposed himself to the censures of the church. But the assembly, in 1836, when his conduct in that matter was first brought under notice, had virtually pledged itself not to proceed against him, at least till the civil action had run its course. To have deprived him of his license then, and thus to have stripped him of the ecclesiastical status which gave him his title to appear in the case, might have seemed like an attempt to get rid of the action by a side wind. But that 1836, not to pledge or understanding could not be held to have covered proceedings this new and altogether gratuitous attack upon the authority did not ex- of the church courts. The notarial protest and the threat new outrage. of an action of damages, were not at all necessary for the The pledge given in institute against him, tend to this maintenance of his civil rights. These were as safe without the protest as with it. And the act, therefore, had on the face of it nothing but the aspect of a wanton outrage upon that ecclesiastical government which he had sworn to obey. Mr. Whigham, the junior counsel for the pursuers in the Auchterarder case, was a member of this assembly: and while Mr. Young's conduct, in regard to the protest, was under discussion, he rose and stated that Mr. Young, in that matter, had acted under the direction of his legal advisers. The house declined, however, to allow any one to come between them and their own licentiate. And while they determined to appeal the Auchterarder decision, and for the present to institute no proceedings against Mr. Young in regard to that action-they further resolved, in reference to the notarial protest, that, before going further, Mr. Young be "cited to appear at the bar of the assembly." On the day appointed, Monday the 28th May, he appeared accorbar of the dingly, accompanied by his senior counsel the Dean of attended by Faculty. The scene which followed was not creditable to the judgment, good taste, or candour, of that learned person. Mr. Young appears nder cita tion at the Assembly, the Dean of Faculty. pleads igno rance of the cause of his being sum moned. which he evades the question put by the house. 1838. His first movement was to plead ignorance of the purpose CHAP. VIIL for which his client had been summoned to the bar, and on The Dean this ground to intimate, on the part of Mr. Young, that he had nothing to say. The assembly having, however, decided that the interrogation should proceed, it was moved and carried, at the expense of another division, that the question he put, "whether Mr. Young is prepared to say that he served the protest on the presbytery of Auchterarder under the direction of his legal advisers, that it was necessary or useful towards the case in dependence at his instance against the said presbytery." Forgetting what was due The way in both to the house and to himself, the Dean of Faculty had recourse to the expedient of attempting to ride off from this question upon a palpable perversion of its meaning. Taking advantage of the expression, "whether Mr. Young is prepared," the Dean, speaking for his client, said,—no, he is not prepared to say yea or nay. What the house wanted was, to get formally and judicially at the knowledge of the fact, whether or not Mr. Young, in serving his otarial protest against the presbytery, had acted upon his own responsibility, or upon that of his counsel. If he was prepared to say "—that is, if he was in circumstances to say, if the facts warranted him to say, that the proceeding complained of, was substantially the deed of his legal advisers, the assembly had signified again and again, in the course of the discussion, that for the present they would be satisfied to let Mr. Young alone. The Dean of Faculty knew, of course, the real import of the question,— and that his mode of meeting it was only one of those dexterous quibbles to which a pettifogging attorney might stoop, but which was as unsuitable in the supreme court of a Christian church as it was unworthy of the official head of the Scottish bar. The feeling which this manœuvre produced, the shock which it gave to every man's sense of 66 The house offended by this treatment. Dr. Cook rescues the CHAP. VIII. propriety, was too unequivocally displayed to leave any 1839. room for doubting that the Dean had overshot the mark. There is a natural sympathy with the accused, which inclines men to allow considerable license to the side of the defence. But the limit had been overstepped, and the Dean felt it. In the very act, however, of escaping from the awkward position in which he had placed both himself and his client, he stumbled into an additional breach of both personal and professional decorum, by signifying, that the question which he had evaded as coming from the house, he would answer, if addressed to him by any member of standing and consideration! Dr. Cook very considerately came, in these Dean from circumstances, to the rescue of his friend, and the question his difficulty. was at length answered in the affirmative. Both orally, and in writing, the Dean admitted that he had advised Mr. Young to do what he had done, as essential to the protection of his interests in the pending lawsuit; and so this somewhat exciting passage, in the history of the assembly of 1838, came to a close. It served sufficiently to show, that in so far as those who were managing the Auchterarder case were concerned, it was a war to the knife," which had been declared against the independent jurisdiction of the church. In this respect, the scene, however unpleasant, was not unprofitable. Forewarned is forearmed. The enemy had betrayed his plan of attack, and the church, in consequence, The Church prepared for a firmer stand. With her eyes open to all the hazards of the conflict now begun, she had, in this important assembly, distinctly drawn the line around her own spiritual territory, and taken her ground, resolved, by God's help, to abide the issue. And in now looking back over all the perils and perplexities of her subsequent struggle, it cannot but be a pleasing reflection to those who led the movements of the assembly of 1838, that the principles then laid down, and the resolutions then taken, were fol had now taken her stand. 66 1838. lowed out with equal consistency and constancy to the CHAP. VIII. end. ment made lations of on the regu the Veto act. made appli cable to presentations by presby The act Before leaving this assembly, it may be proper to advert An amend to a particular amendment which, in the course of its sittings, was effected upon the regulations of the act on calls of 1834. As these originally stood, it had been, not very wisely, provided, that when, by the jus devolutum, the right of presentation to a vacant parish fell into the hands of the presbyteries. tery, their presentee should not be subject to the veto of the congregation. It was out of deference to an objection urged with great vehemence by the opponents of the act that this provision had been adopted. Parishes, they said, would be kept interminably vacant by this right of veto. The people would be so enamoured of the powers which it placed in their hands, that they would employ it in mere wantonness against every man that might be offered to them, or at least until they had compelled the patron to nominate the man of their own choice. The supposition was a mere gratuitous libel on the good sense and fair dealing of congregations, and ought never to have been listened to. With a view, however, to conciliate their The provision opponents, the provision above specified was introduced. Here, it was said, is an effectual check upon the evil you dread. This will make sure against interminable vacancies; -and it will effect this object by hindering the right of presentation from ever getting into the hands of presbyteries at all. Both patrons and people will have an interest in coming to a good understanding, and in securing, in harmony with the rights of both, an amicable and an early settlement. It was well and honestly intended, but it was wrong notwithstanding, both in principle and in policy-wrong in principle, because it could not be reconciled with a full and now with drawn was conciliate intended to the oppon ents of the act. It was wrong both in policy and principle, and, therefore, was wisely fair application of the fundamental law of non-intrusion; removed. |