The Sun.
London, England, 1839-05-02 00:00:00

HOUSE OF LORDS.-(THIS DAY•)

ILWGMENT.-TIIE EARL OF KINSOUL V. THE PRESIWITRY

OF ACCIITERAIiDEit.

Their Lordships having appointed this morning for giv-
ng judgment in this important case, the bar was more
than usually crowded by members of the Church of Scot-
lend, anxious to hear a judgment so deeply affecting the
Church and the people of Scotland. Counsel having been
called in,
Lord BROUGHAM then proceeded to address theie Lord-
ships. He said the case on which the House was now
about to give judgment was one of great importalee, and
had excited great interest in Scotland. The case had come
before their Lordships upon appeal ft om the judgment of the
Court of Session, by which the tight of the Earl of Kin-
itoul to the living of Auchterarder was established. That
decision had been pronounced by very little more than a
bare majority of that Court, pronounced after very elabo-
rate arguments at the bar, accompanied also by very ela-
borate arguments from the Bench, and dissented from by
no less than five of the learned persona who were
among the mast d;stinguished Scotch Judge,. A eircuen-
!Aancc had occurred which he might at the outset state, as
it relieved his mind of 53310 part of the anxiety which he
had felt—a circumstance common to himself and his Noble
Friend who was about to give his opinion upon the case,
after an unremitting attention of five days to the subject ;
that circumstance was, what difficulty the Learned Judges
in Scotland could have found in giving their judgment in
the present instance, because to himself and his Noble
Friend the case seemed as clear as the sun at noon day.
He had carefully read the whole of the reasons of the
Learned Judges, occupying a volume of nearly 500 pages,
closely printed ; and from that he Gould entertain no doubt
that all the learning and ingenuity of those Learned
Judges had been displayed in arguing die case; but 'he
could not, with the utmost diligence, neither could
his Learned Friend, discover the very great diffi-
culty that was embodied in the case. He bad
Coale to the decision which he was about to pronounce
without any sort of doubt whatever; and it was a source
of great satisfaction for him to know that his Noble
Friend on the Woelseck, without any communication
whatever upon the subject with him, from the time of the
arguments, bad come to the same conclusion. lie made
these statements without in the slightest degree attempt-
ing to disparage the learned tribunal who had given the
judgment which had been brought on appeal before their
Lordships. Having said thus much, he would now pro-
ceed to state the grounds upon which, in his humble
judgment, there could be no doubt whatever that the
Court below had come to a right conclusion, and that their
judgment therefore should be affirmed by their Lordships.
Much had been said in the course of the arguments of the
public feelings that might be excited if the judgment of
the Court below was affirmed—the feelings of the flock
and the feelings of the Pastor. For himself he had no
doubt whatever that both would render respectful obedience
to the constituted law of the land. lie would not believe
,that the Church of Scotland or any of its assemblies would
not render a willing, as well as a respectful obedience to
the lawful decision of the highest Court of Judicature
in the realm. His reasons for coming to the decision which he
had done were founded upon the statute-law of the country.
When he went into the history of the case, it would be
necessary fur him to look at what was the position of
the people upon the question of presentment, and ad-
missions, and inductions into benefices, and when he
came to look to that, it would be found that at no time or
in any age or country did it bear the least resemblance to
what was contended for in the present case. The facts of
the case now before the House were not in dispute—it was
not disputed that the Earl of Kinnoul was entitled to the
patronage—it was not disputed that he had presented Mr.
Young—it was not disputed that he was presented in due
time, and it was admitted that he had been properly sus-
tained. It was not disputed that the Presbytery had refused
to ordain Mr. Young, and the ground of that refusal was
not denied, that ground was exclusively the veto or dissent
exorcised by a large majority of the heads of families or
parishioners of Auchterarder. It was clear, therefore,
there was this case before their Lordships, that the majority
of the heads of families were against the admission of Mr.
Young. But then came the question whether the herds of
fatuities hada right to exercise a veto and diisent ; and had the
Presbytery a right to entertain that dissent, unaceompanied
with reasons or inquiries on their part, as to the validity of the
cause of dissent; and were the Presbytery by law entitled
to reject the presentee of the lawful lawful patron of the
living ?' Iu other words, was the right of patronage in the
patron solely, or was it in him jointly with the parishioners?
He would now state to their Lordships what had been at
different times the right of communicants, arid also of
patrons. It was to be observed that before endowments
were numerous—when the patrons were very few—when
the priests were paid by casual offerings, the right of
patronage was hardly known, and the prii,St was generally
chosen by the body of the clergy. According to the
canon of 1493 he was to be chosen by the clergy with the
aseentof the flock, and afterwards that choice was extended
to the Bishop. Cyprion had stated, in his address to the
Spanish people, that the priest should only be ordained in
their presence, because then the demerits of the bad would be
disclosed, and the merits of the good shown. The sta-
tute law of Scotland, upon which the whole question in
the present case turned, was to be found in the Statute
of 1592, regulating the Presbyterian Church in that coun-
try. By that statute, it was ordained that all presenta-
tions to benifices were to be directed to the particular
Presbyters, provided the aforesaid Presbyters be bound
and adatricted to admit whoseever was qualified when
presented by his Majesty ur the lay patrons. At different
times it had been doubted whether this ought to be con-
sidered as forming the statut a law of the country, and in
1659 alterations were made in the law, by which prcsen-
tetions were entirely taken from the patron and given to
the heritors and elders, who were to present to the people,
who were to give their reasons if they dissented to the
presentation, in order that it might be determined upon by
the Presbytery, and if the Presbytery found, on judicial
inquiry that the reasons for objection were not well founded,
then they were ordained by this statute to admit and in.
duct, and give full possession of the benefice to the cler-
gyman. So that, by that statute, a new form of presen-
tation was given—the right of patronage was abolished,
and that right was transferred to the heritors and elders,
end all these parties combining, the operation of induction
was thus completed. What next took place? If the statute
that he had adverted to had continued the law el the laud, '
if that S,atute had remained unrepealed, no man then
would say that Lord Kinnoul w,)uld have the right of pa.
tronage. Admitting that statute to be still in existence,
nothing like the present state of things would have arisen.
Fur the present state of things as that there is no presenta-
tion by the heritors —there is no refusal by the congrega•
Lion, but there is a refusal cn the part of the Presbytery.
But what was done in the 10th year of Anne, 1711 ? Why
the statute of 1659 was completely repealed, and was at the
present moment, as if it had never been enacted. By that
statute it was enacted that the right of all and every pa-
tron should be restored, settled, and confirmed to them
—that the Presbytery should. adroit their presentation of
a qualified person ; provided, nevertheless, that such qua-
lified person as shall be presented shall be presented as per-
sons or ministers were presented before the making of this
Act ought to havebeen admitted. The Act, therefore, of
1659 was altogether repealed. But then one great argu-
ment at the bar was, what was the meaning in that Act of
the word qualified. Now he could entertain no doubt et
all, that the word qualification, used in that Act, was In be
looked upon in a technical sense. According to some of the
old authors, such as Balfeur and Banton, the word quali
lied meant qualified in literary life, morals and
manners, and such there could be no doubt was
the qualification of any clergyasan to be presented
to a living. Having disposed of the question of qualifica-
tion, he would now say a few words as to the argutnent
that had been put forth, that the statute of Queen Ann!?
i
had left the statute of 1699 exactly where t was. If it
was even to be admitted that part of that Act was not re-
pealed, he thought it would go but little way to sustain
the case of the appellants, but there could be no doubt,
lookime at the terms in which the latter provisions of the
Act were couched, that the Act of 1689 had been repealed,
and the right of patronage was left in exactly the same
' position as if that Act had never passed. With
respect now to the general view of the case, it
was admitted on all bands that the General Assembly
was an ecclesiastical body—that it had ne right to adjudi-
cate upon civil rights. It was admitted, that in spiritual
matters, they had a right to interfere, but in the present
instance they had taken upon themselves a character which
they were not entitled to fill. There could be no
doubt that they bad no power under the statute to
interfere with the right of the patron, still less
had they the power to adopt the sweeping course
which they had pursued in the prevent case.
We will give the conclusion in a Second Edition.

THE LAW OF LUNACY.—On Tuesday, a
lecture " upon the state of the law respecting the
seizure and confinement of persons deemed of unsound
mind," was delivered by Mr. John Perceval, son of the
Right Honourable Spencer Perceval, in the lecture room
of the King's Arms Tavern, High-street, Kensington. The
lecture was but thinly attended, a circuinstanee which was
much regretted by the lecturer in the opening of his ad
dress, and who then proceeded to read the Clauses of the
21 and 3d of Wm. IV., cap. 107, and the Act amending
it, the 31 and 4th Wm. IV., c,p. 64, commenting on each
section as he proceeded, and said that the wording of
those Acts, which were the only ones bearing on the
subject, was excessively loose and improper. Under
their provisions lie showed that any person for po-
litical or religious reasons, or for the purpose of un.
justly obtaining possession of property, might incarcerate
for life a relative or any other person who might be the
object of their machinations, the Aet :only requiring that
notice should be given to the keeper of any lunatic asylum
of the person's intention to send a patient, and that such
patient should be accompanied by a certificate from a doc-
tor, to the effect that he had examined the patient, and had
found him to be insane or of unsound mind, and a proper
object to be confined. That was all that was required to
sign away a man's safety, his honour, his reputation, his
liberty, nay, even his life, and that certificate was not even
to be given on oath. Mr. Perceval cited various cases in
support of his views. It was stated in the room that it is
contemplated shortly to call a public meeting at Exeter
11611 on the subject.

The Reformers of St. Martin-in-the-Fields have
announced their intention of celebrating the triumph of
Reform principles in that aristocratic parish, by a public
dinner, to take place at the Artichoke Tavern, Blackwall,
on Tuesday, the 14th of May. General Evans will preside,
supported by Mr. Leader, and other influential members
of the House of Commons. Among the stewards arc the
names of Berkley, M. P. , Ewart, M. P., Gorden, Esq ,
Jervis, M. P., Raymond, Esq., Tulk, Esq., Simpson, Bain-
bridge, Pouncey, Addington, Aveline, and the most re-
spectable of the Liberal parties in tho parish.

A YRSII IRE EL ECT /ON.—The Dumfries Times,
in a second edition, issued at three o'clock in the afternoon
of Tuesday, says :—" We stop the press to announce the
following result of the contest, up till Tuesday morning
(second day) at nine o'clock :—Kelburne, (Tory), 1,b60;
Campbell, ( Whig), 1,114 ; Craig, (CliartLt), 78. Ma
ority fur Keiburne, 446.