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Chalmers' motion, though studiously wrapped up in a veil of obscure expression, was in truth, as plainly described by the Dean of Faculty, OPEN RESISTANCE TO THE LAW OF THE LAND!
An attempt has no doubt been made, and by Dr. Chalmers himself, to escape this consequence, and to maintain that, in the course adopted by the Church since the decision in the case of Auchterarder, she has not been guilty of any opposition to the law. •We suspended,' says he, the execution of the law: we kept the law unrepealed, though meanwhile not acted upon, till we should ascertain whether or not it would be legalised in ParJiament.' Would not any one suppose on reading this statement that the instructions to Presbyteries in 1839 had been in the meantime not to apply the Veto Act—not to receive dissents without reasons-not to refuse to take presentees on trials—but to proceed according to the former law of the Church— the general law of the Church in such cases,'- till the proposed alteration should obtain the sanction of Parliament.
How stood the fact ? By the regulations which were transmitted, and re-enacted into an interim act, in 1839, the Presbytery were as much bound as ever to allow the veto to be applied ; and the veto once applied operated as a final rejection by the law of 1834. True, the Presbyteries were directed to report all disputed cases' to the next General Assembly. But what was there left to report, if the veto was once taken? While the law of the Church stood unrecalled, the fate of the presentee was sealed. The Assembly themselves were bound by it; they could have done nothing upon the report of the Presbytery. Was this no resistance to law? The law says to Presbyteries in express terms, • Proceed to take the presentee on trials:' the Church says as expressly by the directory of 1839, “Do not proceed to take the presentee on trials; proceed to receive the veto, which for ever excludes you from taking him on trials, and then report the case to the General Assembly.'*
But, adds Dr. Chalmers, we showed our respect for the law by abandoning the Church's claim to present jure devoluto after a veto, and by instructing the Presbytery to offer no further resistance to the claims of Mr. Young, or the patron, to the emoluments of the benefice of Auchterarder;' that is to say, they yielded what the law, as a matter of course, would have refused to them. We pass over the rather curious fact, that the Church is at this moment in another form-claiming these very emolu
* So stood matters till 1840, when without a word of remark the regulations as to the veto were renewed, but with a direction to stop short and report the proceedings at an earlier stage; in order to give a colour to the pretext that the law was not in the mean time set at defiance.
ments, as vacant stipend (vacant by their own illegal act!) falling in terms of law to the Ministers' Widows' Fund. But suppose the claim to the emoluments of Auchterarder bonâ fide abandoned, does there remain behind no resistance to the law? Does not every member of every Presbytery who holds his benefice from the State on the condition of performing the statutory duties prescribed to him—and among others, that of giving effect according to law to the patron's presentation-resist the law when he retains the benefit it gives, and refuses to fulfil the correlative obligation it imposes by proceeding in terms of law to take the patron's presentee on trials ? Is the paid servant of the State-placed in some particular office for the discharge of a particular duty, and by his occupation of that office excluding others from performing it-entitled to refuse performance of the trust committed to hiin, and yet plead that he yields obedience to the law ? To us it appears inexplicable how the majority of the Assembly can continue endowed ministers of the Established Church of Scotland, refuse to perform their statutory duties, and yet talk of complying with the law, because in the special case where the veto law has been applied they make no claim to the temporalities of that particular benefice. We know that by many this pretext is put forward with inuch gravity; and there may be some to whom it may wear the look of argument. Let us see then how it is treated by one of the ablest, most zealous, and most highminded of the supporters of the Church, Sir George Sinclair, in a recent and elaborate explanation which he has given as to his views of the conduct of the Church, and of the way in which he thinks the question might be adjusted. Differing as we do, toto cælo, from his conclusions in some other respects, it is impossible not to admire the candour and impartiality of his reasoning in this :*
I have, after much reflection,' says Sir George, 'been led to think that after the decision of the supreme civil courts in the Auchterarder case, to which the General Assembly has felt herself conscientiously bound to decline giving effect, the Church has no alternative but that of obtaining an Act from the legislature for amicably adjusting the question in reference to the conflicting interests of the patrons and the people, or of relinquishing the whole of her temporalities, and allogether dissolving her connexion with the state. I am no lawyer, but I own it appears to me to be equally consonant with the dictates of equity and common sense, that when the Church refuses to take those steps which the civil courts say that she is bound to adopt in conformity to her compact with the state, she does not, if I may so express myself, purge the irritancy by merely renouncing, pro tempore or pro hâc vice, her claim to the * Letter addressed to the Witness (Edinburgh Paper), Sept. 19, 1840.
benefice benefice of Auchterarder, and assuming a position which precludes the patron and his presentee from realising their interest in the stipend, but that, as she holds all her other temporalities by precisely the same tenure, she cannot in justice retain any part of them, but must surrender the whole into the hands of the state, unless, as I have already stated, the matter can be amicably settled through the medium of an act of parliament. If I had an estate consisting of many farms conferred upon me, on the condition that I adhered to a certain system of management and rotation, and that I chose (however honestly in point of motive) to depart in the case of any particular farm from the system laid down in the covenant in virtue of which alone I was entitled to the property, and the supreme courts declared that I had acted illegally, it would not be sufficient that I gave up the rents and profits of the particular farm in question, but it would become (as I conceive) my duty either to surrender the whole property, or to implement the terms of the agreement as defined by competent authority.'
Let the Church be assured-despite of sophistical reasonings about co-ordinate jurisdictions—that this is the view which impartial men, and even partial but honourable friends, form of her duty in this particular in regard to the State.
· Resigno quæ dedit; et meâ Virtute me involvo, probamque
Pauperiem sine dote quæro,' is the only language that can be held by those who conscientiously feel themselves unable to give obedience to that law, in virtue of which she holds her endowments. If the Church now for the first time after about 300 years makes that discovery, and resiles from her part of the contract, honour and common sense suggest that it must come to an end on both sides. While she retains her temporalities, her boast of independence of the law is a ludicrous and dishonest bravado. What indeed do the majority of the Clergy, safe in the proverbial security of possession, suffer by the cheap assertion of independence? The patron suffers, whose right is rendered nugatory; the presentee suffers, who, after a life of honourable toil, is for ever excluded from the benefice, and has his prospects blasted on the very eve of fulfilment; the parish suffers by being consigned to spiritual destitution, or left to the ministrations of some occasional emissary; the conscientious minority of the clergy suffer, who by obeying the law of the land subject themselves to the unsparing grasp of ecclesiastical tyranny. But as to the majority—their endowments are safe—their withers are unwrung!
We have alluded to the position in which the minority of the clergy were now placed by the determination of the Assembly to enforce the act which the House of Lords had declared to be illegal. The hardship of their situation was soon to be strikingly
illustrated. In a former case, that of Lethendy, the majority of the Presbytery had come into collision with the civil courts; in that of Marnoch, which now followed, the minority were to come into collision with the ecclesiastical tribunal. It may be worth while to contrast the spirit in which tủe two courts acted.
In the case of Lethendy-we pass over its details--the presentee, Mr. Clark, having been vetoed by a majority, forty of whom, as usual, had been petitioners for him, the Crown thought proper --very unaccountably as appears to us, while the question of the validity of the veto law was yet sub judice-to issue a second presentation to a Mr. Kesson, on which the Presbytery were about to induct the second presentee, whom they happened to favour. Never, perhaps, was there a clearer case of civil right presented for the decision of the civil court. The second presentee could only be settled under a regular presentation; but if the first presentation to Mr. Clark was still effectual in law, the second presentation was absolutely void, and the induction of Mr. Kesson into the benefice would have been an induction without a warrant, and a gross invasion of Mr. Clark's vested right; since, if Mr. Kesson was once inducted, Mr. Clark was necessarily for ever excluded. Two successive interdicts accordingly were obtained by Mr. Clark from the civil court against the Presbytery proceeding farther till the validity of his presentation should be tried. These interdicts the Presbytery disregarded—they proceeded in the face of the decree of the civil court to settle and induct the second presentee—who is at this moment the minister of Lethendy-settled in fact without a presentation, though of course without a right to the temporalities. Nay, because Mr. Clark had ventured to apply to the court in a legal manner for protection of his civil rights in a question of competing presentations, the acting Delegates, or Commission, of the Assembly, on the motion of Mr. Dunlop (a lawyer), remitted to the Presbytery of Dunkeld 'to hold conference with the said Mr. Thomas Clark, and in the event of his not evincing due penitence for his conduct and withdrawing the legal proceedings instituted by him, to prepare a libel charging him with the said offences '-viz., attempting to bring the jurisdiction of this Church under subjection to the civil power in matters spiritual, contrary to the doctrines of the independent spiritual jurisdiction of the Church, and of the sole headship of the Lord Jesus on which the same depends.'
The interdict of the supreme court then had been set at defiance by the majority of the Presbytery, and the party who had applied for it threatened with prosecution by the ecclesiastical tribunals :
“There is no state of things in the social system,' says the Dean of Faculty, 'which can indicate greater disorder or a more complete disruption of all the bounds and restraints of law, than such an occurrence. What is there which ecclesiastical courts in the present day can do beyond the defiance of an interdict, and expressly directiug for the attainment of their own ends an act to be done in open violation of the decree of the court enjoining the thing in the mean time not to be done? What is there which in former times was done by ecclesiastical authority proving more directly the resolution to put themselves above the law, and to procure entire immunity for the exercise of any power they choose to assume?'- Letter, p. 63.
For this breach of the law the majority might justly have been subjected to imprisonment. But the Court of Session, making allowance for the difficulty of their position, while they found it necessary to vindicate the authority of the law, acted towards them in a spirit of the utmost leniency. They were summoned to the bar of the court, censured with mildness by the venerable President, and dismissed. *
Look now at the conduct of the Church. In the case of Marnoch, which occurred in October, 1837, before the case of Auchterarder had been decided, the Presbytery of Strathbogie. giving obedience to the Act of the Church, had in the first instance applied the veto law. Mr. Edwards, the presentee, had been rejected. Then came in February, 1838, the decision of the Court of Session in the case of Auchterarder. As it was clear after this decision that Mr. Edwards would proceed to vindicate his rights by civil process, the Presbytery applied for advice to their ecclesiastical superiors. The only instruction they received was-proceed according to the veto law. Meantime a second presentation had been issued by the patron, erroneously assuming the invalidity of the first. Mr. Edwards, as Mr. Clark had done in the Lethendy case, applied to the Court of Session for an interdict against the Presbytery proceeding to induct the second presentee, and he also brought an action to the same effect as in the case of Auchterarder, that the Presbytery were bound to take him on trials. He obtained both the interdict and the decree he sought. The court found his rejection illegal, and that the Presbytery were bound to make trial of his qualifications, and if found qualified to
* The grave and simple dignity of the conclusion of his lordship's very striking address will be obvious to all: *I am not fond of that abbreviated form in which such things are usually expressed--that parties have been guilty of a contempt of courtas if it was an offence personal to us-as if we were offended. No: we are only the administrators and the guardians of the law, bound to support its authority, and, so far as our personal character can go, bound to maintain the dignity of the count. But pere sonal offence we have none. It is our duty to support the law, and I trust we shall ever continue to do so.'