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If e'er we served you, if you wrong'd us e'er,
And think, lies chanting to her chains below." What can we do? 'Tis impossible to get another page and you must imagine for yourselves Anne Ayliffe at the stake.
Edinburgh : Printed by Ballantyne and Hughes, Paul's Work.
No. CCLXXXIX. NOVEMBER, 1839.
ON THE PRESENT POSITION OF TIE CHURCH OF SCOTLAND.
The lively but painful interest exci- nent part of the British Constitution ted among the friends of the Church of fallacies which have obtained the more Scotland by recent judicial proceed- ready currency, because presented in ings, which, in the opinion of many of a captivating form, couched in loose her most zealous lay and clerical mem- and popular language, and addressed, bers, threatened her independence, principally at least, to that portion of or even her existence, imposes on us the community, of whom we shall be the duty of reviewing the past history pardoned for saying, that neither their of the question involved in the Auch education nor their mental habits have terarder Case, and of endeavouring to fitted them to sit in judgment on a present, in a short and intelligible question of constitutional law. form, the result of what we believe to The most directly important and have been a patient and dispassionate interesting enquiry, no doubt, relates consideration of the subject. Some to the practical expediency of that months have elapsed since the decision legislative measure to which the of the House of Lords in the Auch- Church has resolved to ask the sancterarder Case, the judgment of the tion of Parliament. But it is imposCourt of Session in the Lethendy sible duly to appreciate the merits of Case, and the discussions in the Gen- the proposed law, unless we first uneral Assembly respecting the course derstand the proceedings which have to be pursued by the Church, with a placed the Church in her present poview to the removal of the difficulties sition, and thus ascertain the motives with which she is beset. All undue of this application to the Legislature, excitement, therefore, may be suppo- and the true intent and object of those sed to have so far subsided as to render who advocate a change. Our obserthe present occasion well fitted for our vations, however, on this part of the purpose; and we entreat the attention case, shall be as concise as possible. and the favourable construction of our It is said that a collision has taken readers, while we endeavour, in the place between the Civil and Ecclesiasfirst place, to remove certain erroneous tical Courts, as separate and indepenimpressions, as they appear to us, tend. dent jurisdictions - that neither of ing materially to increase the difficul- these co-ordinate powers can, without ties inseparable from the discussion of a violation of its duty, consent to abanthis subject, and to expose certain fal- don the independent ground which it lacies respecting the true position and
has assumed and seeks to maintain functions of the Church, as a compo.
that therefore no executive power has NO, CCLXXXIX. VOL. XLVI.
the means of interposing, or the right if judge the power of execution, or, in it had the means—and that an altera- other words, has permitted to him the tion of the existing law, or, it may be, use of physical force, to secure the of the existing constitution, is the only infliction of the punishment which he possible remedy — the only possible has awarded, the payment or performmode of preventing what, in colloquial ance of the recompense which he has language, is called a dead lock. But decreed, and the execution of all or. we doubt very much whether this be a ders whatsoever, which he in his distrue or correct statement of the ques. cretion has seen fit to pronounce. Betion. We more than doubt that a coltween any two Courts, armed with lision, in the proper meaning of the such powers as these, a collision (howterm, can take place between the Civil ever improbable the occurrence) may and Ecclesiastical Courts of this coun- take place, as, for example, between try. To render a collision possible any two of the three Courts of Sesbetween two separate branches of the sion, Justiciary, and Exchequer. If same constitution, it is not necessary, contradictory orders be issued by two we admit, that both should be conver- such courts, the unfortunate indivi. sant exclusively with the same subject- dual, to whom they are both addressmatter, or that the territory, or the na- ed, has only the alternative of obeying ture of the two jurisdictions, should be one or the other; he cannot obey both; altogether the same. Civil, criminal, and his imprisonment will be the apfiscal, or ecclesiastical matter, may propriate punishment of his inevitable equally furnish the materials of a col. disobedience of the one or the other. lision. But both courts must be arm. The court whose order he has obeyed, ed with equal powers, or powers the may then direct his liberation ; and same in kind, if not equal in extent, thus, and thus only, a proper collision constitutionally if not actually equal, arises. Let us not be supposed to for enforcing its orders and maintain- maintain that both of these two courts ing its authority, otherwise that which must necessarily be right or justifiable, is constitutionally weaker must yield, in a moral point of view, in the means just because the constitution has given adopted to maintain their own dignity, it no adequate means of resistance, and or the authority of the law. On the because the theory of the constitution contrary, either one or both may have must therefore be presumed to be, that erred in judgment, and abused the the one shall be subordinate to the other. discretion committed to it. But beThis is a most grave and serious sub- cause a Court has done iniquity, it has ject; and we should be sorry to be not therefore exceeded its constitusupposed to have broached so import- tional powers; nor does it therefore fol. ant a doctrine unnecessarily, or with low that its commands are brutum fulout due consideration. Let us be men, and may be safely disregarded or judged, therefore, by the sequel. despised. Every human institution is
The majesty of the Law is supported necessarily imperfect: and it is in conand vindicated by the exercise of certain sequence of the impossibility of finding powers which the Constitution has in. a better tribunal, that judgment has trusted to the civil courts. To give been committed to fallible men, who, redress for wrong done, and to punish like their brethren, may from error in the wrongdoer - in the exercise of judgment, or even from other and less preventive justice, to prohibit the per- excusable causes, do grievous and irrepetration of meditated or threatened parable wrong. But the power being injury—is the peculiar province of once conferred, by reason of the over. such courts, and the free and un- whelming necessity of the case, it fol. restrained use of these powers is lows as an inevitable consequence, that essential to the maintenance of law for the wrong done in the exercise of and order in the state. But it would that power there is no remedy, but only have been in vain to vest such powers a preventive safeguard against its comand such discretion in any body of men, mission in the moral and constitutional by virtue of statute or otherwise, if responsibility of the judge, which althe means of enforcing their own de- ways bears exact proportion to the excrees, and compelling obedience to tent of his power. their own orders, had been at the same The Court of Session, then, as the time withheld. Therefore it is, that supreme civil tribunal of this country, the Constitution has conferred on the being invested with powers such as
we have endea voured to describe, are ing to subject our opinions to the test there any materials for a collision be- of discussion, we are satisfied that the tween that cou rt and a Church Court? theory which we now propound is at Is there in the latter any power which once so simple, so intelligible, and so can control the proceedings of the rational, that any thing like a dispasformer, or any power which is equal sionate consideration of the subject in kind, that is, constitutionally if not must ensure its cordial reception. actually equal, to the powers of the The Church, then-that is, the civil court?
Church of Scotland in connexion Ist, It will be readily conceded to with the State, whose ministers have us, that the Church Courts have no by law an indefeasible right to a mainpowers of execution, no means of en- tenance out of the teinds, and are reforcing their own orders. Disobedi- cognised as the accredited organs of ence of such orders infers no penal the State in teaching the national reconsequences, by imprisonment or ligion and superintending the educaotherwise. But, 2d, It necessarily tion of the people-to the benefit of follows from this defect, as well as whose ministrations every Scottish from the confined and exclusive char. subject has by law an undoubted title acter of ecclesiastical jurisdiction, the Church, which the Sovereign that a Church Court cannot compe- has solemnly sworn to maintain as an tently issue any decree which may be integral part of the Constitution, and carried into effect only by the use of which, on the other hand, has sworn physical force. To ordain payment allegiance to the Sovereign, not only or performance is, therefore, clearly as an individual, but as representing beyond the power of such a spiritual the majesty of the law—the Church, court; and it is equally so to provide which looks to the law to provide for a remedy, or to give redress for any the security of her privileges and impersonal or patrimonial wrong. 3d, munities, and demands from the State, From the defect of power first noticed, as matter of right, an extension of her it also follows that Church Courts means of usefulness, at the expense of have no preventive or prohibitory the State, to meet the wants of an inpower ; for an interdict or an in- creasing population—this Church, we junction which cannot be enforced, is say, as distinct from the holic something like a contradiction in Church of Christ, of which she is a terms. Lastly, we take leave to doubt noble branch, is in law an incorpora. whether Church Courts have any pen tion, created by the law for the achievenal jurisdiction, properly so called. ment of most important ends, subject, Not that we would venture to dispute like every other individual or body the powers of the Church to inflict corporate, to the supreme civil auecclesiastical censures, and to proceed thority, in all cases where she does not to deprivation or suspension of mini- enjoy some express privilege or exempsters and licentiates, on certain well tion. The distinction at which we ascertained and peculiar grounds. In point, has been eloquently and forcithis popular sense, the Church Courts bly explained by the venerable Presimay be said to punish members of the dent of the Court of Session, in his Church. But that is a very different late solemn and most impressive admatter from the infliction of punish- dress to the Presbytery of Dunkeld. ment by a court of law_different both
“ I think,” in character and effect. That is not
"much confusion the administration of public justice; tinguishing between her situation as a
has lately arisen from the Church not disbut ratheris closely analogous to, if not identical with, the management of the portion and member of the Universal or
Catholic Church of Christ, and her situainternal concerns of an exclusive body, tion as the Established Church of Scotincorporated by statute, and invested
land. In the first view, that you are a with certain privileges and immuni- branch, and a most numerous and most ties.
respectable one, of the Universal Church We know that this view of their
of Christ, you are on the same footingposition is by no means palatable to but on no better footing-with all the many zealous and influential members other bodies adhering to the Presbyterian of the Church, and it may, at first sight, form of church government throughout stagger even some of our most un. the country. Taking you in your characbiased readers. But far from dread. ter as merely members of the Church of
Christ, the Synod of Burghers, and the faithful and uncompromising minister Synod of Anti-Burghers, or any other of Christ may, or must, be a rebellious Synod, have the same powers and privi- and disobedient subject. No minister leges as you have, and you have no greater of the Church of Scotland, we are well powers than they have.
But, considered assured, will persevere in entertaining as having been adopted by Parliament to
or promulgating such an opinion. But be the Established Church of Scotland, is there any thing in the constitution you neither bad nor can have any powers of this country, orin its existing laws, or privileges except what Parliament gave
which renders it unfit for an alliance you when it adopted you as the Established with a branch of the Catholic Church? Church."
There is no new element in the ConFrom the obvious and indisputable stitution, no fundamental principle of soundness of this reasoning, it might Government, which did not exist when fairly be presumed that the Church's the alliance was formed in 1592, or claim to exclusive and independent ju. when it was renewed at subsequent risdiction, must be rested entirely on periods; and the rights and privileges the statutes to which she owes herexists of the Church are, down to the present ence as a national establishment. But day, regulated by the statutes passed of late some doctrines have been ob. on these occasions. We shall consider scurely hinted at, and some opinions by-and-by how far the Church herself pretty freely indicated, which, as they has recently maintained and performed are startling in the announcement, the conditions on which she originally are still more alarming in their conse- received the protection and support of quences. It seems to be maintained, the State. that there resides in the Church of But we may, after all, misunder. Scotland some undefinable, but inhe- stand the views of some of our cleri
. rent and indefeasible authority, derived cal friends as to the nature of the duty from the Saviour himself as Head of imposed, and the authority conferred the Church, in the exercise and main. on them by their Divine Master, to tenance of which, all considerations of resist the civil power in certain cases. expediency, and all reverence for civil It may be, that no more is meant than government, must be abandoned and the duty and authority to preach the forgotten. We are deeply anxious Gospel in spite of all opposition, and to understand this doctrine, and we to maintain and defend the faith in shall analyse it with care. If the the face of the cruelest intolerance Church have a duty to perform to her and persecution. Surely this is not spiritual head, which is inconsistent the day when such doctrines need be with obedience to the civil law of the pressed on the public attention, or the country, one of two conclusions is in- mind of the Legislature. Fear of evitable-either the Church has allied persecution can hardly be the inducherself with a Government which is tive cause of any recent movement in unfit for union with a Christian Church, the Church. But, besides, if such be or there is something in the character the true meaning of the opinions to of the Christian religion itself, which which we have referred, what connecrenders an alliance of the Church with tion have they with the recent prothe State improper or inexpedient. ceedings of the Church, or how can The element of disunion must reside they be used in defence of the Church's in the one party or the other. Now, present disobedience of the civil law? the latter of these alternatives, it will There is no question of doctrine raised. be observed, is directly subversive of There is no proposal on the part of the whole argument in support of civil the Court of Session to remodel the establishments of religion; but it is also Confession of Faith, or to interfere something worse—it is obviously a libel with the office of the Church in ex, on the Gospel to say, that Jesus Christ pounding its doctrines. That standard founded a church which could not of orthodoxy is part and parcel of the exist in union with the freest and most Treaty of Union between England and perfect civil government that the world Scotland ; and an invasion of the
It is irreverent, if not Church's exclusive privileges, as the blasphemous, to maintain or believe National Teacher of Religion, would that the Gospel dispensation, the be high treason against the ConstituGospel of peace, imposes duties incon. tion. But it is not alleged that any sistent with civil obedience that the such violence is threatened. The sub