tinction between the cal and judi tions of acts of parliament,--and therefore it "has no civil CHAP. XL. jurisdiction." But the commission had assumed His novel discivil jurisdiction, because " they proceeded to sus- ecclesiasti pend those seven men, not from their ecclesiastical cial funcfunctions merely, but from their judicial functions ministers, also." "I doubt the power," he said, "to suspend from the ecclesiastical functions, but I am decidedly of opinion that the commission had no power to suspend those clergymen from their judicial functions, from those duties imposed on them by statute." In addition to these alleged radical defects which attached to the commission, and which, in his view, disabled it in any circumstances from pronouncing such a sentence as the one complained of,-Dr. Cook further stated two other and more special grounds upon which he held the sentence to be incompetent. First, that be the commission's power what it may, it reaches only, in judicial cases, to those matters which the assembly has remitted to it. He affirmed that the commission Objects that had gone beyond the remit of the assembly, and had dealt with "a state of things not only not referred to the commission, but not contemplated by those who made the reference." And second, that the commission had no authority to take up any case referred to it except at the "stated meetings" of commission; whereas the sentence had been pronounced, not at a stated, but at a special meeting. This was the argument on the strength of which Dr. Cook called on the assembly to find that, in pronouncing the sentence of suspension against the seven Strathbogie ministers, "the commission have acted ultra vires in exceeding the powers granted by the assembly,-reverse and the Commis sion had gone beyond the remit of the Assemthat the bly, and Commission could not deal, even with cases remitted to its stated it, except at meetings. CHAP. XI. rescind the said sentence, and the whole proceedings connected therewith, declaring them to be null and void." Dr. Cook's attack on the legal the Commis The fact that Dr. Cook attempted to carry his point standing of at the expense of destroying the legal standing of the sion. commission, serves only to show to what extremes partizan strife will carry men. The commission had existed and had exercised the very powers, now for the first time called in question, for upwards of a century. The very year before, the assembly had unanimously approved a sentence of the commission, not suspending merely but deposing a minister. There was not a word then of Dr. Cook's newly discovered distinction between the ecclesiastical and judicial functions of a minister; as if ministers got their authority to preach and dispense the sacraments from the church, but their authority to judge, that is, to rule the house of God, from "statute law!" He was well reminded that his distinguished predecessor in the leadership of the moderate party, Principal Robertson, knew nothing of this modern scruple about the powers of the commission. Mr. Begg, who recalled Dr. Cook's attention to this fact, quoted Principal Dr. Cook to Robertson's well known "reasons of dissent" against Robertson the commission of assembly of 1762, in the Inverprove the keithing case. There had been disobedience in that Rev. Mr. Begg refers Principal for prece dents to authority of the Commis-case too, by a presbytery to the orders of their eccle sion in cases sent. 66 was a more com like the pre- siastical superiors,—and the Principal complained of the commission for not punishing that disobedience. "There never," said Mr. Begg, plete contrast between two cases. It was a commission on both occasions that decided; but on the one party seem to object to the Commis sion, because it was now shielding, oppressing, occasion the commission had decided in favour of the CHAP. XI. people; and on the other a dissent was taken from The moderate their judgment, because they did not inflict censure the power of on ecclesiastical persons for the purpose of compelling them to settle unacceptable presentees. The essence instead of of the whole lay there. A new idea has been discovered by the moderate party in regard to the power of the commission: and that grand discovery had probably been made, because unfortunately the commission now had shielded the people against a violent intrusion." the people. of New Commission gone beyond With regard to the more relevant objection, that the commission had gone beyond the remit of the assembly, it would have been decisive had it only been true. But the commission had not gone beyond the remit of the assembly. Dr. Anderson of New- Dr. Anderson burgh, who made by much the ablest speech against lows that the the sentence of the commission, admitted that he had not had not the fragment remaining within him of a doubt the remit. that the assembly delegated to the commission the whole case of Marnoch, to be cognosced, determined upon, and disposed of, not merely according to the remit, but in terms of the veto-act;" in short, "to do every or any one thing in the matter they may choose. He had no doubt that all these things were intended." It is true, Dr. Anderson held, notwithstanding, that the assembly did not and could not know, at the time the remit was made, that things were to turn out as they had done. They did not know the Strathbogie ministers were to refuse obedience to the orders of the church; and, therefore, he argued, the remit could not have contemplated a sen lan's answer to Dr. An derson CHAP. XI. tence like that which had been actually pronounced. Dr. P. M-Far. I do not wonder," said Dr. P. M'Farlan, speaking to this point, "that it entered not into the mind of the assembly; for who was to suppose that any seven ministers in the church would refuse to do what the assembly, in the exercise of its lawful authority, commanded them? And not only that, but that they would actually go before the court of session, and prefer obedience to the civil court to obedience to their own ecclesiastical court." But what then? The commission had received instructions and authority to do everything that might be necessary to prevent the intrusion of Mr. Edwards into the parish of Marnoch-and the suspension of the seven ministers turned out to be the only means of hindering that wrong. As for the last objection of Dr. Cook,—that the commission had no authority to convene or act except at the usual stated times of meeting, it was enough to point, in reply to it, as Dr. M'Farlan did, to the very terms of the commission's annual appointment; in which, while stated times are specified, it is His answer, farther added, that they shall meet "oftener, when that the and where they shall think fit and convenient.” * After a lengthened discussion, the amendment of the ed meetings. procurator was carried against the motion of Dr. The decision. Cook by a majority of 84: the numbers being 227 to 143. The amendment was in these words-" That the assembly, having heard counsel in this case, find that the commission did not exceed its powers; dismiss the complaint and appeal, and find and declare to Dr. Cook's Commission had no power except at stat * Vide Presb. Rev., Vol. XIII., p. 137. that the seven ministers in the presbytery of Strath- CHAP. XI. bogie have been duly suspended, in terms of the sentence of the commission." preliminary the merits. This decision did, of course, nothing more than Effect of this vindicate the past. It left the whole question open decision. as to what was to be done with these seven ministers for the future. Their junior counsel not being prepared, in the absence of his senior, who had meanwhile left the bar of the house, to enter on the ulterior question that remained, craved delay. This was granted at once, and on the motion of Mr. Dunlop, the case was deferred till the Thursday morning thereafter. "He seriously felt the responsibility of the steps which would follow, and he trusted these gentlemen would also feel more deeply the position in which they were placed." On the day fixed, the seven ministers Case heard on re-appeared at the bar of the assembly, and Mr. Robertson, as their senior counsel, once more addressed the house. On this occasion, however, he contented himself with the briefest possible statement,-requesting only that his former argument might be held as repeated. In the house, Mr. Dunlop took the lead Mr. Dunlop in the discussion of this momentous case. He began by recapitulating briefly, but clearly, the proceedings which had brought down upon the seven ministers the sentence of the commission. To these it is not necessary to return. Speaking as to what occurred subsequently to the commission's sentence, Mr. Dunlop went on to state, that" these parties, suspended by the commission from the exercise of their functions, resolved, nevertheless, to proceed in the exercise of their judicial functions, to sit as a presbytery, and go leads the discussion. |