THE TEN YEARS' CONFLICT. CHAP. IX. THE COLLISION. thickens. INDICATIONS had now begun to multiply of a deepening CHAP. IX. and widening conflict. Even before the court of The conflict session's judgment in the Auchterarder case had been yet pronounced, the spirit which gave it birth, and those views of the civil courts' pre-eminence which were developed in its progress, were already at work in other quarters, preparing materials for new disorders and still more harassing divisions. When the very foundations of authority come to be called in question, it is the sure token that a formidable struggle is at hand. The idea having once gained currency and countenance that ecclesiastical decisions were no longer to be held as final and conclusive, even upon such questions as the admission of ministers to their spiritual office and cure, it needed no unusual sagacity to foresee the consequences that must needs arise. Licentiates of a secular spirit-men who were seeking the priest's office for a piece of bread—were too likely to take advantage of the facility thus afforded them of A The perniikely to unsettling cious consequences result from ecclesiastical autho rity. Licentiates and minis ters of a encouraged to rebel against an evangelical CHAP. IX. gaining gaining a position which otherwise they could never hope to reach. As there were, moreover, already in the ministry not a few to whom the evangelical and reforming character of that career on which the church had now embarked was altogether distasteful,—to whom the stricter discipline, the more living and active piety, the increased seriousness and spirituality of this secular spirit new æra, were a source of continual uneasiness and alarm,—it was a thing to be counted on, that in the and reform- progress of such a controversy as had now arisen, a collision with those internally discordant elements should, sooner or later, take place. Men whose whole habits, as well as theology, belonged to the dark and dead school of the preceding century, were too ill at ease under the ascendency of principles so diverse from their own not to take advantage of the first favourable opportunity to betray their discontent. The ground of these observations will begin ere long to appear. ing Church. Cases of Le thendy and Marnoch the consi deration of them post poned. At the assembly of 1838, two cases were brought up for review which were destined to occupy a prominent place in the struggles of the church, and to illustrate with peculiar force and clearness the great cardinal principles which were now at stake. These were the cases of Lethendy, in the presbytery of Dunkeld, and of Marnoch, in the presbytery of Strathbogie. Instead of taking them up, however, at this early stage of their progress, it will be more convenient to defer the account of them till it can be given in a more complete and continuous form. It will serve to keep the narrative more unincumbered and intelligible to go on at present, tracing out to its issue the fundamental case of Auch terarder, and describing the consequent proceedings CHAP. IX. of the general assembly. The Auchter- arder case Lords. Lord judicial The appeal was brought on in the house of lords, by a special order of the house, on the 18th of March, 1839. Counsel being called, there appeared for the church, Sir Frederick Pollock, Mr. Pemberton, and Mr. Bell; for Lord Kinnoull and Mr. Young, the attorney-general Sir John (now lord) Campbell, Mr. Knight Bruce, and Mr. Whigham. The pleadings, which occupied five days, having been closed, judgment was delayed till the 2d of May. On that day Lords Brougham and Cottenham delivered their judicial opinions. That of Lord Brougham was given Character of in the shape of an extempore address, which, partly, Brougham's no doubt, from this cause, and partly from the discur- speech. sive character of that eminent and learned person's intellect, appears, from the report of it which has been preserved, to have been of a somewhat rambling kind. Lord Cottenham delivered his sentiments in writing, and with all the wonted calmness and gravity of an English judge. The first thing in Lord Brougham's address that must strike the reader, is the facility with which he gets at his conclusion. Alluding to the "great divisions" which appeared on this case in the court below, "it does so happen," observes his lordship, "that I have been, with the utmost diligence, seeking for difficulties and found them not, that I have been, with all the power which I could bring to bear upon the investigation, wholly unable, and am to this hour unable, to discover wherein the very great difficulty consists." He signified, moreover, that Lord Cottenham was in this Lord Brougham can find no difficulties in the case. CHAP. IX. respect, entirely at one with him. "We entertain," Neither he said he, "as little hesitation in our judgment, the one nor Lord Cottenham stand what can under- as the other, being both of us unable to account for it was that the question of law now at issue having been made the Court of the subject of such a long and pertinacious discussion." * perplexed Session. That men of such capacity and legal knowledge as Lords Glenlee, Jeffrey, Moncrieff, &c., should have had absolutely nothing, in the law of the case, to afford any ground, or colour even, for the strong and decided opinions they had been led to form upon the subject, appears to be a somewhat startling assumption. The surprise, however, which it produces, vanishes at once on examining the view of the case on which Lords Brougham and Cottenham proceeded. Grant their premises and there could be no difficulty in coming to their conclusion. The theory on which their judgment turned involved these two positions,-First, The two posi- The church is, by statute, the judge of qualification in the case of every presentee to a parish, but qualificawhich suffi- tion is a technical term, including under it nothing account for but doctrine, literature, and life; and excepting there tions which their lordships lay down, and ciently their having no difficul ties. fore for heresy, ignorance or immorality, the church cannot legally reject a patron's presentee. And second, the presbytery is in the same position as a bishop in the church of England, and the civil court has the same jurisdiction in the case of the one as in the case of the other. The former of these two positions is fatal, of course, to the legality, not merely of the act of assembly 1834, but of the principle involved in the motion made by Dr. Cook both in Robertson's Report, pp. 2, 3. CHAP. IX. is a purely technical term, of very restricted meaning. 1833 and 1834-that it was competent to the people, at the moderation of the call, to give in " objections of whatever nature against the presentee, or against his settlement," while the latter of the positions in question carries the civil court triumphantly over all the defences of the jurisdiction of the church of Scotland. Speaking to the point of qualification, Lord Brougham observes, "I am somewhat surprised to find, in the Qualification very able and learned arguments from the bench below, an attempt made to show that qualification is of such extensive meaning that within its scope may be brought the whole of the matter at present in dispute, namely -the acceptableness and reception of the party presented by the congregation, as finding favour in their sight. * * * A man, say they, may be of such rude and stern manners, he may be so disagreeable in his habits of life, or he may be so much above his flock in his manners, and so entirely disqualified for associating with them, that they will receive no edification from his ministrations. My lords, if it amount to anything affecting his morals, his life, and conversation, that comes no doubt within the meaning of qualified. The word qualified," continued his lordship, is not "used in its general sense,—as you talk of a man's qualities, of his capacity, of his abilities, of his merits,-which are all general phrases, and none of them technically defined. The word 'qualified' is as much a known word of the law, and has as much a technical sense imposed upon it by the statutes, by the law authorities, by the opinions of commentators, by the dicta of judges, as the word qualification has when used to express the * * * |