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admit him. This judgment was extracted as a warrant for execution, and intimated to the Presbytery.. .
Then, and not till then, did the majority of the Presbyteryacting not merely on the general declaration of the law which resulted from the decision in the case of Auchterarder, but under the authority of a definitive sentence in this particular case--find themselves, according to their own statement,
' . • Constrained, by their solemn conviction of what is imperative upon them, in the circumstances, as members of a church established by law, and as such bound to obey the law as constitutionally interpreted and declared in the case, to come to the painful resolution to act in opposition to the prohibition served upon them by order of the Commission, and, in obedience to the decree of the Court of Session, to take Mr. Edwards on trials, as presentee to the church and parish of. Marnoch.'* - The resolutions of the Presbytery having been brought before the Commission of the General Assembly, that body, expressly on the ground that in giving effect to the decree of the civil court the majority of the Presbytery had violated the law of the Church, proceeded to suspend the seven ministers who constituted the majority; and directed the Presbytery to provide a supply of stated ministerial services for their parishes, as if they had been vacant. Against this sentence the suspended ministers applied to the court, under whose compulsitor they had acted, for protection. That protection was of course given. The minority of the Presbytery, and all other Presbyteries, were interdicted from carrying into effect the resolutions of the Commission of Assembly
from molesting, invading, and interrupting the complainers in the exercise of the office of ministers '--from supplying ministerial services, or otherwise exercising any of the functions of the complainers, in their respective parishes '—' preaching in the churches, churchyards, or schoolhouses'— and generally from attempting to carry into effect the illegal sentence of the Commission. • In this and the whole of the trying proceedings which followed, the conduct of the seven suspended clergymen extorted the respect even of the Committee of General Assembly who were appointed to confer with them, from the combination which it displayed of reverence for their ecclesiastial superiors, with the firmness of men conscientiously discharging a painful but unayoidable duty.
The judginent of the court of session in the case of the suspended ministers has been represented as an excess of powers; and, still more strangely, as a persecution of the Church by the civil power. If these charges had been made only by men
* Resolutions of the Presbytery of Strathbogie, 4th December, 1839. • VOL. LXVII. NO. CXXXIII.
ignorant of the law and constitution of the country, we should have left them unnoticed; but when an able member of the legislature--himself a lawyer-chooses to reiterate them, and to give them the weight of his authority, it is impossible to pass them over without remark. Mr.J. C. Colquhoun, in a late address to his constituents at Kilmarnock-an address which, we regret to say, is characterised by more dexterity than candour—while erpressly admitting the illegality of the veto act, yet chooses to maintain that the courts of law have exceeded their powers, and intruded in a wanton and persecuting spirit into the domain of the Church.
'I have always,' he says, 'held this language to the Church, that she ought to repeal the veto act. I need not say that I have the highest respect for the courts of law. I think the passing of that act was a trespass beyond the Church's bounds; and I am happy to have Dr. Chalmers on my side, because he has stated that from the first he doubted whether the Church had the power to pass the veto act. And therefore, in last May, I advised him to get that law repealed. What then, it may be asked, would you have the Church to put herself at the foot of the courts of law? I say no ; but I wish to place the Church on her own constitutional ground. Are the courts of law, then, entitled to inflict penalties upon the Church? In every case there is but one penalty they can inflict; and that is, to withdraw the endowment, to abstract the stipend from the living. And if the courts of law had merely done this, and taken the temporalities from the parish of Auchterarder, they would only have done their plain duty. But they have done a great deal more than their duty. They have followed after the Church, and threatened her with penalties, fines, and imprisonments; they have issued orders to the Church to perform spiritual duties; they have issued interdicts forbidding her the performance of her spiritual functions. I say that, in doing this, the courts of law have done what is not their duty: they have transgressed their line, they have exceeded their jurisdiction : and when they say to me, Hear the law, I say, Hear the constitution. When they say to me, Obey the law, I reply, Obey the constitution. When they say, Won't you hear our judgment? say, I hear a judgment more emphatic, more impressive, louder than yours, coming from those who drew up the constitution of both courts, the ecclesiastical as well as the civil; that I must obey: and it is therefore with great regret, but in honest conviction, that I am bound to say that the courts of law have done a very serious wrong.' .
It is conceded, then, in the outset, that the veto law was illegal, and that the civil courts rightly found that, according to the law, the Church was bound to take on trials every qualified presentee. The Church, notwithstanding this declaration of the law, attempts to compel her members to ensorce the illegal act; and, when they refuse to do so, punishes them for their disobedience by suspension from their office of the ministry. They apply to the ci
courts for protection. Is it contended that no protection could be afforded? If so, the proposition comes to this, that the ecclesiastical tribunals may depose a clergyman because he refuses to commit a crime; and that the civil courts can afford no remedy. For the law cannot weigh degrees of illegality; the principle which would exclude review in the present case would equally exclude review where the Church had insisted that her members should enter into an illegal secret society—should violate their oath of allegiance, or be guilty of treason. But if no clergyman can be deposed or suspended for refusing to do an illegal act and doing a legal one, the right of the civil court to protect the deposed or suspended party arises of necessity. For to say that a person cannot legally be suspended for such a cause, and yet that the illegality cannot be declared by the only tribunal which can judge of legality, is a contradiction in terms. Let us put a case which, considering the present tendency of matters in Scotland, is not of impossible occurrence. Suppose the majority of the Assembly-adopting the modern doctrine, that patronage is antiscriptural-proceed to depose at once from his clerical office every member of the minority who refuses to sign the recent antipatronage bond; or to deprive of his licence every licentiate of the Church who will not pledge himself to reject all presentations from a patron.* Will any one contend that for such an act of ecclesiastical tyranny as this there is no remedy so far as the suspension of these individuals from the clerical office is concerned, and that men cease to be British subjects because they have the misfortune also to be clergymen?
*But the civil courts,' says Mr. Colquhoun, have done more. They have followed after the Church with threats of fine, penalty, and imprisonment; have issued orders to her to perform spiritual duties; interdicts against her performing spiritual duties: and herein they have exceeded their duty. We answer,— The civil courts have issued no such threats; they have simply found, as they were entitled and called on to find, that by law the Church was bound to perform certain duties—leaving it to the private party to enforce the remedy which this finding gives. They have issued interdicts against no performance of spiritual duty; they have only interfered to prevent the rights of subjects from being violated under that pretext. If they were entitled to give protection to the suspended clergymen at all, they were entitled to give complete protection; not merely to maintain them in their churches and manses, but to protect them from being harassed and molested by an irregular and agitating militia of
* In point of fact, we believe that in one Presbytery the last proposal has already been brought forward.
preachers, sent into their parishes on the pretext of supplying vacancies which had no existence. For the principle of the decision was that the sentence of suspension was null in toto: that for such a cause there was and could be no suspension-consequently, no vacancy, and no ministrations of religion to be sup. plied; and, therefore, that every attempt to molest the existing incumbents, and outrage their feelings by setting up a rival conventicle at every church-door, to misrepresent and malign the established clergymen, was a plain wrong which called for a remedy.
When they say to me, Hear the law,' says Mr. Colquhoun, • I say, Hear the constitution !-When they say to me, Obey the law, I say, Obey the constitution!' And what, we ask, is the expositor of the constitution but the law ? The legislature itself, which made the laws and can unmake them, cannot interpret them : the courts of law are the only interpreters of the constitution as it stands. Mr. Colquhoun deludes himself: he cannot hear the voice of the constitution • louder and more emphatic' than that of the law; for where the law speaks, the constitution is dumb.
If this be denied, has Mr. Colquhoun, as he turned these epigrammatic periods, reflected on the full consequences of his argument? What, according to this view, is the constitution ?-Whatever knavery or brainless enthusiasm choose to make it. When John Thorogood resists payment of his church-rates, he violates the law, but vindicates the constitution. When the annuitytax payers in Edinburgh resisted the imposition made by statute for the support of the clergy, if they disobeyed the law, they listened to the more emphatic voice of the constitution. When Frost led on the Chartists of Wales to the attack of Newportwhen Fieschi or Darmes levelled their murderous engines against the life of Louis Philippe—they appealed from the law to their own dark ideal of the constitution. •0, liberty !' said Madame Roland, upon the scaffold, “ how many crimes have been committed in thy name !! O! much-invoked and much-abused constitution, say we, what excesses inight not be palliated under thy name, if the reality were not to be sought and found in the law!
But, surely, still more unaccountable is the other accusation against the courts of law-that of persecution. Did the courts of law, we ask, voluntarily mingle in this unhappy contest? No; they interfered only to protect those who had obeyed their sentence—legally, and, as it is admitted by Mr. Colquhoun, rightly pronounced in a civil action, at the instance of a private party, They would at once have violated their constitutional duty, and covered themselves with ridicule, if they had refused to interfere.
Their interference was not persecution of the Church, but pro. tection of the privileges of the subject..
But we will tell the Church of Scotland what does appear to us to be persecution. It is persecution to compel the obedience of its members to an illegal act, when that obedience violates conscience and subjects the party to damages or imprisonment. It is persecution to suspend from their clerical offices those who, being subjects before they were churchmen, feel themselves compelled to obey the law of the land rather than the illegal enactment of an Ecclesiastical Court; to subject them to the daily intrusion of a band of clerical agitators, dis. turbing their comfort and rousing into pernicious activity the elements of discord and malignity which exist in every parish. Yet such was the conduct of the Assembly; for, in defiance of the interdicts of the Court of Session, they adhered to their determination of treating the parishes as vacant, despatched a regular supply of preachers to militate there as in partibus infidelium, and sanctioned, or at least did not rebuke, the most intemperate and irritating allusions on the part of these emissaries; the calumnious nature of whose statements against the conduct and character of the suspended clergymen, subsequent and humiliating palinodes have sufficiently attested.
Strange,' as Lord Aberdeen observed, “that a Church which had experimentally known the evils of persecution for conscience sake, should have profited so little by the lesson as to turn her hand against her brethren.' Still more strange that, while countenancing proceedings which more than anything else have alienated from her the sympathy of the public, she should yet persuade herself that she had acted with conspicuous lenity and moderation. We have carried forbearance,' says Dr. Chalmers, 'to the utmost limits' (p. 14). Our conduct is an instance of the utmost possible gentleness and forbearance on the part of the Church' (p. 16). Handle him tenderly,' says Isaac Walton, in giving directions for placing a worm upon the hook, “as if you loved him.' •Deal gently with our erring brethren of Strathbogie,' says the General Assembly, while fulminating against them sentences of suspension and threats of deposition-casting the firebrand of discord into their parishes, and practising on the fears and the ignorance of those whom they could not persuade, by circulating the doctrine that even the ordinances of religion were desecrated when dispensed by their polluted hands! *
It was at this crisis when the scandalous state of things was exciting a general feeling of regret, and daily lowering the Pres
* Such is the language used in the likel' as it is called, or indictment afterwards prepared against the Strathbogie ministers.