VOL. XLVI.

THE lively but painful interest excited among the friends of the Church of Scotland by recent judicial proceedings, which, in the opinion of many of her most zealous lay and clerical members, threatened her independence, or even her existence, imposes on us the duty of reviewing the past history of the question involved in the Auchterarder Case, and of endeavouring to present, in a short and intelligible form, the result of what we believe to have been a patient and dispassionate consideration of the subject. Some months have elapsed since the decision of the House of Lords in the Auchterarder Case, the judgment of the Court of Session in the Lethendy Case, and the discussions in the General Assembly respecting the course to be pursued by the Church, with a view to the removal of the difficulties with which she is beset. All undue excitement, therefore, may be supposed to have so far subsided as to render the present occasion well fitted for our purpose; and we entreat the attention and the favourable construction of our readers, while we endeavour, in the first place, to remove certain erroneous impressions, as they appear to us, tend. ing materially to increase the difficulties inseparable from the discussion of this subject, and to expose certain fallacies respecting the true position and functions of the Church, as a compo

NO. CCLXXXIX. VOL. XLVI.

nent part of the British Constitutionfallacies which have obtained the more ready currency, because presented in a captivating form, couched in loose and popular language, and addressed, principally at least, to that portion of the community, of whom we shall be pardoned for saying, that neither their education nor their mental habits have fitted them to sit in judgment on a question of constitutional law.

The most directly important and interesting enquiry, no doubt, relates to the practical expediency of that legislative measure to which the Church has resolved to ask the sanction of Parliament. But it is impossible duly to appreciate the merits of the proposed law, unless we first understand the proceedings which have placed the Church in her present position, and thus ascertain the motives of this application to the Legislature, and the true intent and object of those who advocate a change. Our observations, however, on this part of the case, shall be as concise as possible.

the means of interposing, or the right if it had the means—and that an alteration of the existing law, or, it may be, of the existing constitution, is the only possible remedy-the only possible mode of preventing what, in colloquial language, is called a dead lock.

But

we doubt very much whether this be a true or correct statement of the question. We more than doubt that a collision, in the proper meaning of the term, can take place between the Civil and Ecclesiastical Courts of this country. To render a collision possible between two separate branches of the same constitution, it is not necessary, we admit, that both should be conversaut exclusively with the same subjectmatter, or that the territory, or the nature of the two jurisdictions, should be altogether the same. Civil, criminal, fiscal, or ecclesiastical matter, may equally furnish the materials of a collision.

But both courts must be armed with equal powers, or powers the same in kind, if not equal in extent, constitutionally if not actually equal, for enforcing its orders and maintaining its authority, otherwise that which is constitutionally weaker must yield, just because the constitution has given it no adequate means of resistance, and because the theory of the constitution must therefore be presumed to be, that the one shall be subordinate to the other. This is a most grave and serious subject; and we should be sorry to be supposed to have broached so important a doctrine unnecessarily, or with out due consideration. Let us be judged, therefore, by the sequel.

The majesty of the Law is supported and vindicated by the exercise of certain powers which the Constitution has intrusted to the civil courts. To give redress for wrong done, and to punish the wrongdoer-in the exercise of preventive justice, to prohibit the perpetration of meditated or threatened injury is the peculiar province of such courts, and the free and unrestrained use of these powers is essential to the maintenance of law and order in the state. But it would have been in vain to vest such powers and such discretion in any body of men, by virtue of statute or otherwise, if the means of enforcing their own decrees, and compelling obedience to their own orders, had been at the same time withheld. Therefore it is, that the Constitution has conferred on the

judge the power of execution, or, in other words, has permitted to him the use of physical force, to secure the infliction of the punishment which he has awarded, the payment or performance of the recompense which he has decreed, and the execution of all orders whatsoever, which he in his discretion has seen fit to pronounce. Between any two Courts, armed with such powers as these, a collision (however improbable the occurrence) may take place, as, for example, between any two of the three Courts of Session, Justiciary, and Exchequer. If contradictory orders be issued by two such courts, the unfortunate individual, to whom they are both addressed, has only the alternative of obeying one or the other; he cannot obey both; and his imprisonment will be the appropriate punishment of his inevitable disobedience of the one or the other. The court whose order he has obeyed, may then direct his liberation; and thus, and thus only, a proper collision arises. Let us not be supposed to maintain that both of these two courts must necessarily be right or justifiable, in a moral point of view, in the means adopted to maintain their own dignity, or the authority of the law. On the contrary, either one or both may have erred in judgment, and abused the discretion committed to it. But because a Court has done iniquity, it has not therefore exceeded its constitutional powers; nor does it therefore follow that its commands are brutum fulmen, and may be safely disregarded or despised. Every human institution is necessarily imperfect: and it is in consequence of the impossibility of finding a better tribunal, that judgment has been committed to fallible men, who, like their brethren, may from error in judgment, or even from other and less excusable causes, do grievous and irreparable wrong. But the power being once conferred, by reason of the overwhelming necessity of the case, it follows as an inevitable consequence, that for the wrong done in the exercise of that power there is no remedy, but only a preventive safeguard against its commission in the moral and constitutional responsibility of the judge, which always bears exact proportion to the extent of his power.

The Court of Session, then, as the supreme civil tribunal of this country, being invested with powers such as

we have endeavoured to describe, are there any materials for a collision between that court and a Church Court? Is there in the latter any power which can control the proceedings of the former, or any power which is equal in kind, that is, constitutionally if not actually equal, to the powers of the civil court?

1st, It will be readily conceded to us, that the Church Courts have no powers of execution, no means of enforcing their own orders. Disobedience of such orders infers no penal consequences, by imprisonment or otherwise. But, 2d, It necessarily follows from this defect, as well as from the confined and exclusive char. acter of ecclesiastical jurisdiction, that a Church Court cannot compe. tently issue any decree which may be carried into effect only by the use of physical force. To ordain payment or performance is, therefore, clearly beyond the power of such a spiritual court; and it is equally so to provide a remedy, or to give redress for any personal or patrimonial wrong. 3d, From the defect of power first noticed, it also follows that Church Courts have no preventive or prohibitory power; for an interdict or an injunction which cannot be enforced, is something like a contradiction in terms. Lastly, we take leave to doubt whether Church Courts have any penal jurisdiction, properly so called. Not that we would venture to dispute the powers of the Church to inflict ecclesiastical censures, and to proceed to deprivation or suspension of ministers and licentiates, on certain well ascertained and peculiar grounds. In this popular sense, the Church Courts may be said to punish members of the Church. But that is a very different matter from the infliction of punishment by a court of law-different both in character and effect. That is not the administration of public justice; but rather is closely analogous to, if not identical with, the management of the internal concerns of an exclusive body, incorporated by statute, and invested with certain privileges and immunities.

We know that this view of their position is by no means palatable to many zealous and influential members of the Church, and it may, at first sight, stagger even some of our most unbiased readers. But far from dread

ing to subject our opinions to the test of discussion, we are satisfied that the theory which we now propound is at once so simple, so intelligible, and so rational, that any thing like a dispassionate consideration of the subject must ensure its cordial reception.

THE CHURCH, then-that is, the Church of Scotland-in connexion with the State, whose ministers have by law an indefeasible right to a maintenance out of the teinds, and are recognised as the accredited organs of the State in teaching the national religion and superintending the education of the people-to the benefit of whose ministrations every Scottish subject has by law an undoubted title

the Church, which the Sovereign has solemnly sworn to maintain as an integral part of the Constitution, and which, on the other hand, has sworn allegiance to the Sovereign, not only as an individual, but as representing the majesty of the law-the Church, which looks to the law to provide for the security of her privileges and immunities, and demands from the State, as matter of right, an extension of her means of usefulness, at the expense of the State, to meet the wants of an increasing population--this Church, we say, as distinct from the Catholic Church of Christ, of which she is a noble branch, is in law an incorporation, created by the law for the achievement of most important ends, subject, like every other individual or body corporate, to the supreme civil authority, in all cases where she does not enjoy some express privilege or exemption. The distinction at which we point, has been eloquently and forcibly explained by the venerable President of the Court of Session, in his late solemn and most impressive address to the Presbytery of Dunkeld.

"I think," he says, "much confusion has lately arisen from the Church not distinguishing between her situation as a portion and member of the Universal or Catholic Church of Christ, and her situation as the Established Church of Scotland. In the first view, that you are a branch, and a most numerous and most respectable one, of the Universal Church of Christ, you are on the same footingbut on no better footing-with all the other bodies adhering to the Presbyterian form of church government throughout the country. Taking you in your character as merely members of the Church of

Christ, the Synod of Burghers, and the Synod of Anti-Burghers, or any other Synod, have the same powers and privileges as you have, and you have no greater powers than they have. But, considered as having been adopted by Parliament to be the Established Church of Scotland, you neither had nor can have any powers or privileges except what Parliament gave you when it adopted you as the Established Church."

From the obvious and indisputable soundness of this reasoning, it might fairly be presumed that the Church's claim to exclusive and independent jurisdiction, must be rested entirely on the statutes to which she owes her existence as a national establishment. But of late some doctrines have been obscurely hinted at, and some opinions pretty freely indicated, which, as they are startling in the announcement, are still more alarming in their consequences. It seems to be maintained, that there resides in the Church of Scotland some undefinable, but inherent and indefeasible authority, derived from the Saviour himself as Head of the Church, in the exercise and main tenance of which, all considerations of expediency, and all reverence for civil government, must be abandoned and forgotten. We are deeply anxious to understand this doctrine, and we shall analyse it with care. If the Church have a duty to perform to her spiritual head, which is inconsistent with obedience to the civil law of the country, one of two conclusions is iuevitable either the Church has allied herself with a Government which is unfit for union with a Christian Church, or there is something in the character of the Christian religion itself, which renders an alliance of the Church with the State improper or inexpedient. The element of disunion must reside in the one party or the other. Now, the latter of these alternatives, it will be observed, is directly subversive of the whole argument in support of civil establishments of religion; but it is also something worse-it is obviously a libel on the Gospel to say, that Jesus Christ founded a church which could not exist in union with the freest and most nerfect civil government that the world ever saw. It is irreverent, if not blasphemos, to maintain or believe that the Gospel dispensation, the Gospel of peace, imposes duties inconsistent with civil obedience—that the

faithful and uncompromising minister of Christ may, or must, be a rebellious and disobedient subject. No minister of the Church of Scotland, we are well assured, will persevere in entertaining or promulgating such an opinion. But is there any thing in the constitution of this country, or in its existing laws, which renders it unfit for an alliance with a branch of the Catholic Church? There is no new element in the Constitution, no fundamental principle of Government, which did not exist when the alliance was formed in 1592, or when it was renewed at subsequent periods; and the rights and privileges of the Church are, down to the present day, regulated by the statutes passed on these occasions. We shall consider by-and-by how far the Church herself has recently maintained and performed the conditions on which she originally received the protection and support of the State.

But we may, after all, misunder. stand the views of some of our clerical friends as to the nature of the duty imposed, and the authority conferred on them by their Divine Master, to resist the civil power in certain cases. It may be, that no more is meant than the duty and authority to preach the Gospel in spite of all opposition, and to maintain and defend the faith in the face of the cruelest intolerance and persecution. Surely this is not the day when such doctrines need be pressed on the public attention, or the mind of the Legislature. Fear of persecution can hardly be the inductive cause of any recent movement in the Church. But, besides, if such be the true meaning of the opinions to which we have referred, what conneetion have they with the recent proceedings of the Church, or how can they be used in defence of the Church's present disobedience of the civil law? There is no question of doctrine raised. There is no proposal on the part of the Court of Session to remodel the Confession of Faith, or to interfere with the office of the Church in expounding its doctrines. That standard of orthodoxy is part and parcel of the Treaty of Union between England and Scotland; and an invasion of the Church's exclusive privileges, as the National Teacher of Religion, would be high treason against the Constitution. But it is not alleged that any such violence is threatened. The sub