to this

finition of

in the

1839. The power of "examination and admission" of ministers, CHAP. VIII. ratified by this statute, is declared to belong to the church The answer then "publicly professed within the realm." Beyond all assumption. question it was a part of the public profession of that church, at the time when this statute was adopted, that no pastor be intruded on any congregation contrary to their will. The state could not expect, when it recognized the right of examination and admission as being exclusively within the power of the church, that the church was to trample upon its own avowed principles relating to that subject. There No such deis nothing whatever about life, literature, and manners, in qualification the statute. The law makes no such limitation of the statutes. church's power. It finds a church publicly professed within the realm. It takes it as it is,-and says nothing more than this-"the examination and admission of ministers belong to you." Lord Cottenham never looks at this argument. But setting out with an assumption, that qualified," has the restricted and technical signification stated above, he carries it along with him to the end. It follows from this view, as matter of course, that the call has no legal foundation whatever. Not contented with The call denying to the call any legal competency or force, Lord by this Brougham, the quondam champion of popular rights, treats this popular privilege of Scottish congregations with contempt and scorn. "I will take," says his lordship, "an analogous instance. Mr. Attorney-general very properly alluded to the coronation. It is a decent and convenient solemnity, to present the sovereign to the people, and the people are supposed to take part in the choice,-a part, however, so immaterial, that if they were all with one voice to reject, the coronation would be just as good, would go on exactly in the same way, and the rejection or recalcitration of the assembled people, would have no more weight than the recalcitration of the champion's horse in Westminster hall

66

4

annihilated

definition,

and turned Brougham

by Lord

into ridicule.

Lord

Brougham's remarks on Lord. Jeffrey.

CHAP. VIII. during the festival attending the great solemnity. It is an 1839. obsolete right which has not, within the time of known history, ever been exercised by any people." And was this "an analogous instance!" Had the call "not within the time of known history, ever been exercised by any " parish in Scotland! Was the hereditary succession to the crown "analogous" to a presentee's title to ordination and a cure of souls? Would a dissent from the nation against the accession of a particular individual to the crown, equal in point of extent and earnestness to the dissent from the parish against the settlement of Mr. Young, be of no more effect than the kicking of the champion's horse when he is backed out of Westminster hall! His lordship, in his judicial oration, in evident allusion to Lord Jeffrey, thought fit to say, that he knew "his subtlety to be unbounded," and "the fertility of his imagination in dealing with questions, to have no limits." The world, it is believed, has already formed a pretty confident opinion, as to whether of these two distinguished personages it is, who, in his judicial proceedings, has dealt less in "subtlety, ingenuity, and fancy," and more in logic and law. But if in his "analogous instance" of the coronation, Lord Brougham's legal accuracy and precision of thought were considerably at fault, his imagination had full scope: and mounting as it did upon the "recalcitrating horse" of the champion, it furnished him with the opportunity of having a fling at those popular rights, which his boasted ancestor Frincipal Robertson had been at so much pains to tread in the dust. Easy to un- Lords Brougham and Cottenham, proceeding according to that view of the law, which they had thus laid down, regardlordships should have ing the restricted import of the term, "qualified minister,' difficulty in and as to the consequent legal nullity of the call-it is easy the rejection enough to see how they should have encountered, in the consideration of the point of law, none of those difficulties

derstand

how their

found no

declaring

of Mr. Young illegal

1839. which embarrassed so many of the judges of the court of CHAP. VIIL session. They were clear, accordingly, that the rejection

of Mr. Young was illegal.

his

of jurisdic

tion: Lord

Brougham thinks their

right to die.

tate to the courts is

Church

self-evident.

As to the other question of the civil courts' competency to pronounce upon the illegality of the proceedings of the church courts, and to assume the right of prescribing to them their duty in the settlement of ministers, Lord Brougham seemed to think any argument upon the subject The question altogether unnecessary. His theory carries him to conclusion at once; he takes for granted that when any proceeding of the church court, however strictly ecclesiastical in its own nature, or to whatever extent matters spiritual may be involved in it, affects a civil right,—that proceeding, in its whole extent, falls under the cognizance and control of the courts of law. "The church courts," he says, "are excluded, they are barred and shut out from any cognizance of civil patrimonial rights, and not only of civil patrimonial rights directly, but of those things which indirectly affect civil patrimonial rights!"* Dealing with this question, of jurisdiction, his lordship proceeds in this confident strain: "It only now remains that I should say something respecting the question of jurisdiction, but I have no doubt whatever upon that. It is asked, 'How can the court of session interfere in a matter of ecclesiastical cognizance?' Prove to me, your minor, that this is a matter of ecclesiastical cognizance, by which I mean of exclusive ecclesiastical cognizance. Prove to me that this is a question of qualification, like the Puts the question of sufficiens or minus sufficiens in literatura, and of the then I say that the court of session will be excluded: just as the court of queen's bench was in Specot's case upon a quare impedit, but which court did not deem itself to be cxcluded (and the Common bench agreed with them) where

Robertson's Report, p. 32.

jurisdiction

Church of

Scotland on footing with Church of England.

the same

that of the

CHAP. VIII. the return to the quare impedit by the bishop was non 1839 idoneus. They would not have been excluded, even if the bishop had said schismaticus inveteralus, much less if he had merely said nolo inducere, as the presbytery has here done."

Makes the

case worse for the

Church of
Scotland

than even
for the

Church of

regard to

supremacy

in matters

spiritual is the law of the land.

It has been always understood that this right of the civil court to compel a bishop to induct applies only to the case of a clerk, that is, to a person already in holy orders,—and that even under the royal supremacy in matters spiritual, which is the law of England, the bishop cannot be compelled, by any civil court in the realm, to grant ordination to a layman, or even to one possessing the inferior orders of a deacon. And yet Lord Brougham has no hesitation England, in in laying down the position that in Scotland, where the which, civil crown, and consequently its courts, are by law declared to have no jurisdiction in matters spiritual, a presbytery may be compelled to perform an act of which ordination is a necessary and essential part! His lordship does not think it needful to bestow any reasoning upon the point; he employs neither argument nor evidence to support his opinion, it grows out of his theory, it belongs to the very essence of his conception of the relations of church and state. "It is said," his lordship observes, "you have no means of carrying into effect the decree of the court of session, albeit supported by the authority of the house of lords, which is a decision of parliament by its judicial character upon the subject. In other words, although you say the presbytery have acted wrong, although you say that their reason for rejecting is of no avail whatever, although you say the law is contrary to what you have supposed it to be, and although you say, deciding upon the petitory part as well as the declaratory part of the summons (which however you are not called upon to do), let the presbytery induct immediately, for it has no grounds for refusing,

1839. still it is affirmed that the presbytery may persist in refusing, CHAP. VIIL and must prevail.

You Lord
Brougham

"My lords, it is indecent to suppose any such case.
might as well suppose that doctors' commons would refuse
to attend to a prohibition from the court of queen's bench,
-you might as well suppose that the court of session,
when you remit a cause with orders to alter the judgment,
would refuse to alter it. Conflict of laws and of courts is
by no means unknown here. We have unfortunately, upon
the question of marriage, had a conflict dividing the courts
of the two countries for upwards of twenty-five years, in
which the court of session have held one law, and in which
your lordships, and all our English judges, have held another
law. The court of session in Scotland has held, and still
holds, two persons to be married, whom your lordships hold
not to be married. But has the court of session ever yet,
when a case which had been adjudicated by them according
to their view of the law,-has the court of session ever then
continued the conflict, which would then have become not
a conflict of law, but a conflict of persons-a conflict of
courts-in which the weaker undoubtedly would have gone
to the wall? The court of session never thought for one
moment of refusing to obey your orders upon this matter,
whereupon they entertained an opinion conflicting with your
own. For this reason alone, and it is enough, I have no
doubt whatever that the presbytery, when your judgment
is given, declaring their law to be wrong-declaring the
patron's right to have been valid,-will even upon the
declaratory part of the judgment, do that which is right."*

According to this statement, the courts of the church of
Scotland stand to the courts of civil law, in the same relative
position that a subordinate civil court stands to a supreme

Robertson's Report, pp. 38, 39.

holds the courts as to obey the

Church

much bound

decree of the

civil courts, of Session is

as the Court