ship observes, "you have no means of carrying into CHAP. IX. 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,-still it is affirmed that the presbytery may persist in refusing, and must prevail. orders Con Brougham Church courts as much bound decree of courts, as to obey the the civil the Court of Session is bound to decree of the Lords. obey the House of "My lords, it is indecent to suppose any such case. Lord You might as well suppose that doctors' commons holds the 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 to alter the judgment, would refuse to alter it. flict 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 CHAP. IX. 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."* these views, has no exclusive jurisdiction 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 According to court stands to a supreme civil court. The idea of a the Church distinct province as belonging to the church, and of a intrinsic and jurisdiction intrinsic and exclusive within that province, whatever. is entirely set aside. With Lord Brougham the question of church jurisdiction is not one of less or more. He denies the existence of an independent jurisdiction as belonging to the church at all. He treats it as an "indecency," even to suppose that the courts of the church of Scotland would ever dream of refusing to obey any sentence which the supreme civil court might think fit to pronounce; as indecent as to suppose that the court of session would refuse to bow to the judgment of the house of lords. Lord Brougham, at the same time that he is so unhesitating in his view of the civil court's super-eminent jurisdiction, is * Robertson's Report, pp. 38, 39. confess that there are no precedents. ham is loss for a precedent, asserts the theless obliged to admit it to be true, of all preceding decisions CHAP. IX. upon cases carried before the courts of law, from the Obliged to judicatories of the church, that they were "not fruitful of instruction for the present question;" that "no one of them is to be found which disposes of it and governs it;" and that in "no one to which they relate, has the present question ever been raised.”* Lord Cottenham recites all the leading cases which had occurred in the course of last century, one after another, but is not able to adduce a single case in which the civil court had ever meddled with the ordination or induction of a minister, or had ever gone one step farther Lord Cottenthan to determine the exclusively civil questions, equally at a Whose was the right of patronage? or whose was the right to the stipend? And yet Lord Cottenham comes to the same conclusion with Lord Brougham, stated, no doubt, in more guarded and respectful language, but still in language which bears the same meaning,—that the civil court's jurisdiction, even in a matter which involves the spiritual act of ordination, is supreme and must be obeyed. "If your lordships," said the chancellor, "shall concur in the opinions I have expressed, and by your decision, inform the clergy of Scotland what the law really is, I cannot doubt but they will, by their conduct and example, inculcate the sacred principle of obedience to the law, of respect for the rights and interests of others, and of the sacrifice of private feelings to the performance of public duty." Guided by the views and principles now explained, * Robertson's Report, p. 19. + Ibid, p. 64. civil court's right of in terference. CHAP. IX. their lordships, without any hesitation, affirmed the The decision judgment of the court of session. This was a grave event for the church. In itself, it is true, the decision of Session affirmed. What this decision set tled, and what it did not settle. went, and could go, no further than the decision of the court below. It settled the point that the rejection of a patron's presentee, solely on the ground of the dissent of the congregation, was illegal; and hence, that though the patron should refuse to present another, the presbytery could not claim, jure devoluto, the right to present in the patron's room, nor could any individual whom they might, in these circumstances, and upon their own authority, induct into the charge of the vacant parish, be entitled to the civil fruits of the benefice. It did not settle whether any, or what, compulsitor could be brought by the civil court to bear on the presbytery, for the purpose of controlling their ecclesiastical proceedings. Taking the decision, however, in connection with the grounds on which it was avowedly based, it could not fail to increase that anxiety and alarm to which the judicial opinions uttered the year before in the court of session, had already given rise. No one could read the speeches The judicial of Lord Brougham and the chancellor, without being 1 Cor fully satisfied that it was not by any means the mere Went much veto-law that was now at stake, but the non-intrusion principle itself, in every shape and form of it,—and in addition to this, the church's whole right of selfgovernment in matters spiritual. If those views of the law, regarding the rights of patrons, on which, in the court of last resort, the judgment in the Auchterarder case was expressly founded, were to be maintained,-the congregation, as such, must be pronounced to have opinions of the Chancel Brougham further than their sen tence. their opin ions, the not obstruct the settle ment of a excepting by means of a libel. no legal standing whatever in the settlement of their CHAP. IX. minister. Their voice, whether for or against the settlement, must henceforth become a thing of nought. Their solemn and deliberate judgment, as to the presentee's unfitness to edify their souls, must be treated as a mere impertinence. Bestrode by the all-powerful patron, and with his spur in their helpless side, they must submit to be forced out of their own parish church, in order that his useless presentee may be forced in. Their opposition, even if made with all the According to circumstantiality of formal objections to his fitness for the charge, could not avail, unless, indeed, it should take the form of a libel against the soundness of his presentee, faith or morals, and be followed out in due course of law; and even then, unless the presbytery, which might chance itself to be not very rigid in such matters, should come to be of their mind, all their efforts to exclude the obnoxious presentee must fall to the ground. Nay more, upon the principle so confidently laid down in the house of peers, of the civil court having a right to review and reverse any sentence of a church court which affected civil rights, the concurrence of the presbytery with the people in their libel, would still leave the whole question of the settlement where it was. The case might be carried from the ecclesiastical to the civil court, and the sentence be there set aside, on the alleged ground that the charge Even a libel, libelled was not within the statute, or on any other of the thousand pleas which this right of review would open to legal ingenuity, -and thus, a presentee, libelled by the people, and convicted by the presbytery, might after all be carried over the necks of both, not though brought by and sup the people ported by the Church courts, might not avail. |