CHAP. XI. plained, but he denied the competency of the assembly itself-nay more, the competency of " any court in her majesty's dominions to pronounce it." His clients had done nothing but obey the law of the land,—and not they, therefore, but the court that condemned Mr. Robert them, were the real offenders! Mr. Robertson had a and simple. very short and simple argument.

son's argu

ment short

It

Apologizing for being "a little elementary," he remarked, with characteristic gravity, that "the supreme power in a state rests somewhere. That proposition, I presume, will not be disputed. Where then does it rest? necessarily rests on the authority of the sovereign, the lords, and the commons, speaking through their statutes. And how do they speak through their statutes? If the statute be plain it will speak for itself, if the statute be not plain, the courts of law will interpret the statute.' Quod erat demonstrandum -the learned counsel should have added, for no mathematical demonstration was ever more conclusive or complete. There was, to be sure, a little petitio His argument principii, as logicians call it, or what amounts, in question. simpler phrase, to a begging of the question, in his mode of putting the case. He took for granted what was precisely the thing to be proved-that the "courts of law" had any authority from "the sovereign, the lords, and the commons," to "interpret the statutes" for the church, where matters ecclesiastical were concerned. Aware that this rather obvious defect in his reasoning might suggest itself to the assembly, Mr. Anticipates Robertson, assuming all at once that look and tone. to his argu- which sat so naturally on this mirth-moving lawyer, exclaimed, "Oh! but the general assembly,-Oh!

begs the

the objection

ment.

raising a

his point by

a mere

assertion.

but the superior ecclesiastical power-they have exclu- CHAP. XI. sive and supreme jurisdiction in matters ecclesiastical!" Answers it by And then, passing from gay to grave,-looking quite laugh. serious now, after having laughed the exclusive spiritual-jurisdictionists altogether out of countenance, he went on to say-" Granted-but what are matters ecclesiastical? Is not the question-Whether, under your ecclesiastical jurisdiction, you have or have not, exceeded your power-a civil question?" And so the Quod erat demonstrandum was triumphantly reached again. The last word—the "redding stroke" in the fray-was proved to belong to the court of session, and that was enough. But how proved? By Makes ont a naked and bold assertion, and by nothing else besides. Is it, indeed, exclusively a civil question this-the determining what is civil and what is ecclesiastical? It is not easy to see what should make it so, and Mr. Robertson did not even attempt to explain. When a church court, with the bible and the confession of faith before it, comes to the conclusion, that baptism, or the Lord's supper, or the ordination of a minister, or the setting of a pastor over a portion of the flock of Christ, is a matter ecclesiastical, and not a matter civil,—is the church court, in so doing, stepping into the province of the courts of law? Is the church court forbidden to know a thing ecclesiastical from a thing civil till the court of session instructs it? This, at least, is not self-evident; common sense repudiates it as an absurdity. If the case be as Mr. Robertson affirms that it is, it certainly does not grow out of the nature of things. If, therefore, it be true at all, it must be the result of some positive statutory arrange

The Church as much en

titled to say clesiastical,

what is ec

as the Court of Session to

say what is

civil.

CHAP. XI. ment, by virtue of which, as one of the essential conditions on which it has established the church, the state has expressly stipulated and required that all boundary questions " shall be exclusively at the Session has disposal of the courts of law? But where is the

The Court of

not by law

be the sole

questions of competing

An extrava

gant case

counsel.

66

any right to statute which embodies that provision? Where is judge in the act of parliament that vests this super-eminent jurisdiction, jurisdiction in the court of session? Lord Jeffrey called for it again and again in the Auchterarder case, but in vain. It is a mere assumption, which has not a particle of evidence to rest upon, and which is contradicted by the whole theory and practice of the judiciary system of Scotland. "If you have the supreme power to declare everything ecclesiastical that you think proper," said Mr. Robertson, supportput by the ing his grand proposition with an argument altogether worthy of it," then you supersede the supreme civil power, you may declare it ecclesiastical to have an increase of your stipends, you may declare it ecclesiastical that no man shall pay his debts if he is a minister, and that all such matters are ecclesiastical." Be it so, it would be after all a very harmless pastime; the stipends would not be increased, and if the debts were not paid, the mad ministers who thought, by the mighty magic of their declaration, to transmute the matter civil into the matter ecclesiastical, would have to go If such a case to jail. The folly would cure itself, and this is the the folly simple and obvious answer to all such ridiculous suppositions. If the church court, in determining what belongs to its own jurisdiction, either ignorantly or intentionally trespasses on the civil province, the civil court will, of course, take care to protect its own

did occur,

would cure

itself.

tra of Mr. Robertson's

famous

supposition.

interests by disallowing to the ecclesiastical sentence CHAP. XI. any civil effect; but what if the court of session either ignorantly or intentionally invades the province of the church! "If," it might be said, adopting the con- The per converse of Mr. Robertson's supposition, "if you, the courts of law, have the supreme power to declare everything civil that you think proper, then you supersede the supreme ecclesiastical power,-you may declare it civil to regulate public worship, you may declare it civil that no man shall be amenable to a kirk session in the matter of church discipline, especially if he be a member of the college of justice,-and that all such matters are civil!" Perhaps the learned counsel would not have shrunk from this application of his argument. M'Crie, speaking of the attempts that were made by the civil authorities at Geneva to overbear the exercise The matter in of church discipline, by Calvin, observes, that "the dispute between him and his opponents turned on this question: are ministers obliged to administer the sacraments to those whom they judge unworthy? or, which amounts to the same thing, are the decisions of the church court in such matters to be reviewed and reversed by the civil court?" "And this," adds the historian, "will be found to have been the true state of the question in Scotland, in the greater part of the discussions between the court and the church after the establishment and the reformation."* It was the true "state of the question" in the ten years' conflict.

Mr. Robertson amused himself and the assembly

* Life of Knox, Vol. II., p. 3, foot-note.

dispute illus.

trated by the noticed by

case of Calvin, as

M'Crie.

CHAP. XI. with his objections to the sentence of the commission, Objections in on points of form. They were so numerous, "he did by the coun- not know where to begin."

point of form taken

sel.

travestie of

the libel.

"As a lawyer," said he, sentence so remote from

"if I could have framed a that which should have been pronounced in point of form, I would say,-Having duly considered the matter, which is not before me; having pondered over a petition which I ordered to be served, but which is not served; having superseded consideration and referred the whole matter to another tribunal, and having also well and ripely advised the whole matter,-in respect Ludicrous that there is no accuser and no libel, in respect that I have only a delegated power, and in respect that that delegated power is not conferred on me, and in respect that the body which called me into existence had no power to delegate that power, therefore in respect of these and other considerations, I suspend the seven ministers.' The assembly laughed heartily at this ludicrous travestie of the facts of the case, and if the place of law and logic could have been supplied by a jest, the witty counsellor would undoubtedly have triumphed.

Dr. Cook opens the

maintains

that the Commission had exceeded its powers.

999

Dr. Cook, who opened the discussion in the house, discussion: went at once to the point. "I am perfectly prepared," he said, "to admit that the mode in which this question must be taken up here is simply, whether the sentence of the commission, which I am to oppose, was ultra vires of the commission of assembly." argument of the reverend doctor, to prove that the commission had exceeded its powers in suspending the seven ministers, was this: The commission is a body created by the general assembly, and not known to

The