The Sun.
London, England, 1839-05-03 00:00:00

mcke it a law again if it thought fit; but had the Preaby.
try or the Church Judicature any right which, by the
common law of the land and by statutary enactments, was
not given to them—on the contrary which was taken away
from them I By all the laws and enactments which
might be referred to it was the province cf the
General Assembly and the Imperial Church Courts to take
cognizance of Church matters, and of Ecelesiastical mat-
ters only, and they were precluded from taking any cog-
nizance whatever of civil patronical rights. Upon civil
and patronical rights, directly or indirectly, they could not
per indircctum do what they could not do directum. They
bad a right to make rules by which they might judge of
qualifkations, but they had no right to make rules as to.
who should be chosen, or who should be rejeoted, when
the patron presented. They had no right to trans
fer either the whole, or the half—and, in this case,
they had transferred the far greater half of the
right of presentation from the patron to the congregation.
Oce thing was certain, that no power in the Assembly to
make the Act of 1834, giving theveto to the congregation,
could be conceived to exist, which would net give them as
complete a power and as tenable a right to give the veto
to the Presbytery; that was to repeal the Act of Anne
and other Acts, and to revive the Act of 1796, which, for
the first time, and alone, gave the choice to the
Presbytery. It was said, that there was a great
difference between location or the admission of a
Minister in Scotland and the admission of a Clerk in
England, inasmuch as that the person who had
the advowson here presents directly to the living, but that
the person who is ordained by the Presbytery has to be in-
ducted, and that the two were so mixed up. together that
they could not be separated. But the answer to that was;
that in the present case the severance was already complete.
They did not refuse to ordain • but they said though we
don't abject to ordain, we don't like to induct into
the parish of Auchterarder, because the parishioners
don't like the individual. The Presbytery could not
say in the present instance that they would not ordain, be-
cause the party bad been already ordained, and the ques-
tion merely was, whether he should be inducted ; and that
was sufficient to repel the argument that had been raised
on this point. Then again it was asked, was a call of
no value ? Did this mean nothing ? Nothing indeed could
be considered more obscure and involving more doubt and
difficulty than the history of calls in Scotland. There was
a time when the law was different to what it was now, when
a presentation took place a call was not given, but the pa.
rishioners could not refuse the call without assigning a rea-
son. But was there ever a time when the majority
was to call, and if they did not call ncthing was to be done
in favour of the party? It would be seen what the law was
in that respect by referring to the first and second Books
of Discipline of 1750 and 1758. But whatever was at any
time the form or validity of a call the statute of the 10th
I of Anne did away with that altogether, unless to the very •
modified and mere ceremonial extent, to which it was left by
that statute, and had existed ever since. The best proof
of that was this very Act of 1834 making the
appointment to rest with 'the majority If, :heads
of a parish; and, secondly, in saying tbikeit call
might be made by two persons in a parish that
might, perhaps, contain 2,000 persons; because that was
the effect, and if the Assembly thought proper they might
hold such a call to be just as valid as if it had been a una-
nimous call from the whole of the parish. Did that not
demonstrate the fact? For his own part he should suppose
that the mere presentation made the call ? Why should
not the patron make the call ? He knew there
was no authority or dictum by any text writer
against him in what he was saying. But what authority
was there in favour of a call? No doubt there was
the Act of 1782, to which reference had been made, of the
Assembly, and the decision of the Assembly in 1790, in
which they highly disapproved of the settlement of a man
who had had no call. The Noble and Learned Lord would
admit that that might be a great informality ; but they did
not repeal the settlement. If the man had got in, however,
without the presentation, or without the induction, would
they have allowed him to continue? No such thins; ;
they would have ousted him, and put in another
man. And when they talked of the call being ne-
cessary upon the authority of the Stirlingshire case of 1790,
they only proved the reverse by the quotation of that case,
because that case showed that there was no pretence for
saying the necessity of a call existed at all. The man in
that case who had had no call was held to have as good a
right to the living as anybody who had ever been presented„
although they said a form had been omitted. The omis-
sion of that form was quite immaterial ; it was as imma-
terial
to the settlement of a minister in Scotland
as it was immaterial to the validity of a marriage
here, that the party should have resided so many,
days in the place where the marriage was
celebrated before that celebration took place, as was re-
quir e d by the directory part of Lord Hardwick's Act.
This threw great light, as the Noble and Learned Lord
conceived upon his argument, because it showed that the
call was held, and might be held to be rather a convenient
thing, than any thing else. It ought to be looked upon
as the remnant of an old law, which had boon repealed.
Whether it descended from the Revolution, or front the
Books of Discipline, of the sixteenth century, was
immaterial ; it was quite clear it was not a pre-
cedent condition, necessary for an induction. It ;night
be very convenient, and it might be very use-
ful. As the people were to judge of the piety, of
the affection and of the learning of the individual, as well
as of his edifying powers, it might indeed be very conve-
nient that they should have the opportunity of coming fore
ward after a trial, with any objection they might have to
raise against him. But this could not give them the right
of veto without certain reasons. As an illustration of this
it was considered decent, and was a very proper form, to
present the Sovereign to his people upon the day of his Coro-
nation; but if every person present were to object to that
Sovereign, and the Coronation took place, that Coronation
would be just as valid and effectual, as if no objection hat-
ever had been made. He might also refer to the instance
of marriage. Both in Scotland and England, a regular
marriage required the publication of banns (except in the
case of a licence), and whoever solemnised a marriage
, I without publication, was liable to Church censure. The
object was to ascertain that there was no lawful impediment,
such as pre-contract, consanguinity, or the want of etaisent
on the part of the parents of an infant. If those impedi-
ments were raised, the ceremony would be suspended.
But supposing the party objecting to the marriage, said
he would give no reason, or that his reason was
that he himself was a rival for the lady's hand, -
why then such an objection would not be at-
tended to at all ; the marriage would go on, and be
just as valid as if the dead silence prevailed which gene-
rally prevailed on those interesting occasioue. Well, then,
he was an advocate for the publication of banns. pc
would not have that publication dispensed with ; it was
convenient and useful, and to make a marriage. regular it
was necessary, but it was not an absolutely necessary part
of the marriage. Precisely so was it in reference to the
call, either before or after the statute of Anne. He could
not find that the call was a necessary part of the induction,
or that it was a necessary condition precedent. And if the
force and (flat to be given to if was to be to make it 'teem-
sary and a condition precedent ; and if the Assembly were so
to carry into execution that supposed effect of it, se as ea
make it a specific condition precedent, and that an induc-
tion could never take place without the consent of the male
heads, he would say that by so deEling with it the statute
of Anne was abrogated, and the rights of the patron
utterly destroyed. The only remaining question was that
of the jurisdiction, and upon which he had no doubt what-
ever. Upon this there could not be a single doubt cast.
Then it was said there were no . means 'of carrying
into cff,ct their Lordships' decreo ; and that the Su-
preme Court of Session, supported by the House of Lords,
which was the decision of Parliament by one of its
Chambers—although they said the Presbytery had acted
erroneously—although they said the reason of the Presby-
tery was no reason at all—although they said, let the Prse-
bytery indict immediately, for were there no grounds for
refee,ing, the Presbytery would still refuse. The Noble
and Learned Lord must say that he did not think it de-
cent to suppose such a state of things. They might as
well suppose that Doctors' Commons would refuse
to attend to a prohibition issued from the Queen's
Bench, without appealing against it. There were,
indeed, cases of conflict between the two countries.
There was one case of conflict upon a question of mar-
riage, which had lasted for twenty years or more, but
when a case had come up here upon a question of law, and
when the House of Lords had come to a decision upon
that law, had the Court of Session ever maintained their
law against that decision ? Thu Court of Scs-
sion lied never refused to obey their Lordships orders
(Ton a matter of law (feeling it might be that
the weaker must go to the wall) whereupon
they entertained the most conflicting opinion. For
this reason he bad no apprehension whatever that the
Presbe tery, when the Judgment of their Lordships' House
was given, declaring them to be wrong and the pan on's
tight to be violated, would hesitate, even upon the declara-
tory pact of the Judgment, to do that which was right.
Then it was said that the congregation mitt dissent, but
he would have no hesitation in making an order on the
Presbytery to induct A.B. upon the presentation of the
patron in disregard of the congregation. He would
refer in support of that only to the case of Lord _an
and the Shetland parishioners. There the PTirfer. sbry,itieerhyoaladomaitwtead
s
a gentleman of the name of Gray. A
the competing man with Gray. The 'Court
wa of Session
sion
said—Refuse Gray and admit Nicholson.not
said then on behalf of the Presbytery
Session had no such power, and that the Presbyterythatthe Courtmighotf
be ? If that had been said on that o
continue to put in Gray, and then where woeneldasitohn Courtthere
to
lied been made use of on the prern _
would have arisen every one of the whichargtuomeeenastsion
scare their Lordships from doing
could they proceed againstf Scotland—could they
athewirhodluety—bondaymeloyf,
d u a
hadls ?
clergymen—the 'Presbytery o
bring actions against every
untenable,
on
tceonnafibrl me
That was the argument by
Upon the whole, he
the judgment of the Court below.d
worichof theirth e s e
Lordshipsindivi
been threatened at their bar, if they proceeded to
to their Lord.
held this argument to be utterly
and such as presented no one
These were the grounds
ships taking the right path.
upon which impediment an
a o
Lordships
st
taondaffijursmt, and
therefore
necessary,hel thatfor ti
ewi
ras
He had gone at much
into the case than
judgment of the Court beloofw.time
greater length in point
desirable,
but when .he looked to
perhaps had been
qh.estio_n_ he did not regret
tthhee
eionniir)soertahrece
hadof ely Lords (continued
ptvuheers:ffednce to that most Venerable
the Noble and Learned Lord), no person would regret
mere deeply than I should if tlhcinetujrtuchdhegment I am now
pronouncing should
of Scotland. I
highest venera-
tionhave the deepest reason , a
reason for it. I
Assembly as represegeltlingfolrthificaele.o
every
am
myself sprung from some of the most venerable and
beamed of that Bedy, and I cannot therefore be deaf
to its interests—deaf to its claims amounting to the
highest veneration—or in the slightest degree pre-
pared to treat it other than with the most profound
respect. lam not the only person engaged in this discus-
sion connected with that Church, and entertaining the
feelings I cherish. The Learned Attorney-General
himself descended from a most venerable part of,
body, and nothing is more clear from the whele of hfSlirfti
ments, than that he is most scrupulously and delicately