CONTENTS. VOLUME SECOND. THE SPEECHES OF THE JUDGES IN DELIVERING THEIR OPINIONS Revised REPORT OF THE CASE THE EARL OF KINNOULL, &c., against THE PRESBYTERY OF AUCHTERARDER, &c. OPINIONS OF THE JUDGES. AFTER the Pleadings in this Cause were closed, the following Opinions were delivered by the Court on Tuesday the 27th of February 1838, and the six subsequent days. THE LORD PRESIDENT.-MY LORDS,-In arranging the reasons for the opinion which I am now to deliver to your Lordships, I have endeavoured to condense them as much as possible, having regard always to the necessary perspicuity. I have omitted many topics, which, in the course of studying this important cause, presented themselves to my mind, being quite certain that such matters as I have either omitted, or but slightly noticed, will be fully and more ably touched on, by such of your Lordships as may agree with me in opinion. And with the further view of saving your Lordships' time, I shall not enter into any analysis of the different decisions which have been quoted to us, but shall confine myself to a general reference to that class of cases, which go to support the views which I take of the jurisdiction of this Court in cases such as this, where the proceedings of the Church Courts appear to trench on the law of the land, and the patrimonial rights of patrons and presentees. By this means, I hope to compress my opinion within a reasonable compass. VOL. II. A This is a Declarator, with petititory conclusions, brought by Lord Kinnoull, as patron of the kirk and parish of Auchterarder, and Mr Young, a licentiate of the Church, presentee to that pa rish, to have certain patrimonial rights of theirs respectively declared by this Court. I shall hereafter consider more particularly the specific conclusions of the Summons. At present, the case before us involves the question, whether an act of the General Assembly of the Church, under which the presbytery acted, and by which the pursuers allege that their civil and patrimonial rights have been invaded and injured, be or be not within the powers of the General Assembly, as constituted by law, or as ultra vires of the Assembly, whether considered in reference to the law of the Church or the law of the State. I This question, as I mentioned formerly, is not new to me. had occasion, some years ago, when I had the honour to be a member of the General Assembly, to consider, with great care and attention, the powers of the Church in its relation to the State. The question then was different, but it led me to the very same research and inquiry which are necessary to enable me to form an opinion on the present case. I have again most carefully studied the subject, and considered all the arguments on both sides, as given most ably in the printed cases, and, if possible, more ably and fully in the eloquent arguments of the counsel on both sides at our Bar. And the result my opinion is, that the Act of the General Assembly in 1834, now before us, is illegal, and not more contrary to the statute law of the land than it is to the law of the Church itself. of In their arguments at the Bar, the counsel on both sides made admissions, which do not, however, aid us much in determining this question. The pursuers admitted, that this Court has no power to review or control the proceedings of Church courts, in matters purely ecclesiastical and spiritual, unless those proceedings encroach on the patrimonial or civil rights of the parties before them. The defenders, on the other hand, admitted that the Church of Scotland is subject to, and dependent on, the Legislature. But these admissions do not solve the question in this case. For it remains to consider, on the one hand, whether the proceedings of the presbytery, acting under the act of Assembly 1834, do or do not trench on the civil and patrimonial rights of the patron and his presentee. And, on the other, quomodo et ad quem effectum is the Church subject to the Legislature. Now, with reference t the Parliament of Scotland, it is material to note, that, at all times, both Roman Catholic and Protes very remarkable It is the first act which is worded tant, the Legislature has vindicated its authority over the Church, and its right to take under its cognizance its powers and privileges. The very first act on our statute book is a one, and worded in a very remarkable manner. of the first Parliament of James the First, with the laudable brevity and precision of our Scots Acts of Parliament. "In the first, to the honour of God and halie kirk; it "is statute and ordained, that the halie kirk joyes and bruke, "and the ministers of it, their auld privileges and freedomes. "And that nae man LET them.” (i. e. hinder or molest,) &c. Observe this emphatic word their auld privileges. These, says the Parliament, we know both in nature and extent. They have grown up with the existence of the Church and State past all memory. These we acknowledge and will uphold and protect you in. But, if you attempt to exercise any new privileges, these we do not hold ourselves bound to acknowledge and protect, unless we also approve of and sanction them. By the act 1481, c. 84, the King is declared to have right to present to all benefices.. And by the next act, cap. 85, all persons are prohibited from purchasing, i. e. in the language of that day, procuring any benefice from the see of Rome under severe penalties. And by several Acts of Parliament all clerks, i. e. clergymen, are prohibited from leaving the kingdom without leave from the King. Thus Parliament dealt even with the Roman Catholic Church. Indeed it is well known to your Lordships, that the Pope, at all times, had less authority in Scotland, than in any country in Christendom. I shall now consider how Parliament has dealt with the Protestant Church, and quomodo et ad quem effectum the Parliament of Scotland has asserted and exercised authority over it, which will enable us to judge the better, whether the General Assembly had power to pass its act 1834. In judging of this question, the expediency or inexpediency of the act must not be allowed to influence our judgment. It has not influenced mine. But it is not possible to shut our eyes to that question. To me, a member and elder of the Church, and for about fifty years a member of the General Assembly, it can-not fail to be most interesting. And in my decided opinion the Act of Assembly 1834 was quite uncalled for, in the circumstances of the Church and country, and most inexpedient. If I wanted any confirmation of this my opinion, I find it in the concluding paragraph of the short pamphlet put into our hands, of Sir Henry Moncreiff's History of the Church of Scotland. Would to God we could have that great and good man back again. He |