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

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eithout l'avirg assigned any reason, then that would
lave presented a different sort of case. It would
save made the case a great deal more difficult, and
:aused the argument and decision to tern upon an-
ither point. But a general refusal, without assigning
‘ny reason would not hare been legal on the part of the
kisembly any more titan it would be legal on the part
.f the Bishops to say non ionius—they must point out a
reason. The Presbytery had not here sheltered them-
selves under any such generality. They had said they
lad refused a perfectly well qualified person because a
,nejority of the male heads of families in the parish dis-
wined without any reason, and that they were bound by
that dissent. The Act of the General Assembly speci-
fied the majority of the male heads of families. Why the
'ale heads ? Was there nothing to he said in reference to any
other branches of families except the male heads upon a
matter of salvation ? Why we were living under a Chris-
tian, not under a Nlahomedan law. Supposing there
xere three or four single women, or three or four widows
in the parish, was this appointment to be considered as
a matter of perfect indifference to them. Were they to
ee regarded as having no interest in the question ? The
General Assembly said those persons should have just
sheever the male heads chose to impose upon them.
Heads of families ! But why not a respectable and well
informed journeyman? Why not a well-informed and
learned scholar, being a young man—perhaps with
more learning than all the rest of the parish together?
No ; it was only to be the male heads of families.
That might be right or it might be wrong. It certainly
was not self-evidently right. It did not follow as leces-
sery from the nature of Church discipline ; it did not fol-
low as necessary from the call, and it might be a capri-
cious decision come to by the Assembly; and that led him
to the next inquiry, that if the General Assembly had the
rower to impose this, had they not the power to make a
totally different appointment altogether ? Could any one
suppose there was anything in the existing law to justify
i totally different scheme ? Supposing. it had been
provided that the person presented should be acceptable
to the Synod, which was a very important body; or sup-
posing it had been provided he should be acceptable to
and chosen by, or not rejected by, a Commissioner whom
the Assembly had appointed to make the choice, as in for-
mer times there had been an instance of. They might
also have goat on to say—and for anything he (the Noble
and Learned Lord) knew it would be the next thing the
Assembly did, if their Lordships allowed them to do this—
provided he should be agreeable to the Presbytery of the
boimds. Now, was it possible for them to do that ?
Why, it was so far from being impossible, that they had
d ine it alit ady. There was the Act of 1596, of the
Legislature in which it was said that " none seek prefer-
ment without the advice of the Presbytery ;" and that was
for a very short time:the law of the land in Scotland. That
law had been abrogated long ago. The Legislature might
make it a law again if it thought fit ; but bad the Presby-
tery 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 of the
General Assembly and the.lmperial Church Courts to take
cognizance of Church matters, and of Ecclesiastical mat-
ters only, and they were precluded from taking any cog-
nizance
whatever of civil patronical rights. Upon civil 1
and patronical rights, directly or indirectly, they could not
per indirectum do what they could not do dir.ctum. They
had a right to make rules by which they might judge of
qualifications, but they had no right to make rules as to
who should be chosen, or who should be rejected, 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.
One thing was certain, that no power in the Assembly to
make the Act of 1534, giving the veto to the congregation,
could be conceived to exist, which would not give them as
complete a power and as tenable a right to give the veto 1
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 had 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 net 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 nothing 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
of Ann, 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 of heads
of a parish ; and, secondly, in saying that a 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 be should suppose
that the mere presentation made the call ? Why should
not the patron rake the call ? He knew there
was no authority or dictum by any text writer
against hint in what he was saying. But what authority
was there in favour of a call ? No doubt there was '
.lI'DGMENT.—THE EARL Or KINNOUL V. TIIR PRESBYTERY the Act of 1782, to which reference had been made, of the
OF ACCUTERARDER. Assembly, and the decision of the Assembly in 1790, in
Lord BROUGHAM, in continuation from our First Edition which they highly disapproved of the settlement of a man
—The ease be was putting did not interfere with a patron's who had had no call. The Noble and Learned Lord would
right of choice at all. It was a much as to say the can- admit that that might be a great informality; but they did
gregation had no right of choice whatever. If that were not repeal the settlement. If the man had got in, however,
admitted then it would be as much as to say, the whole is without the presentation, or without the induction, would
tested in you, the patron, but only upon this little one they have allowed him to continue? No such thing ;
condition—that you, the patron, shall choose the exact they would have ousted him, and put in another
person we would have chosen. If so, who was the chooser? man. And when they talked of the call being ne-
Why, for his own part, he would much rather be the con eessary upon the authority of the Stirlingshirc case of 1790,
gregation in that case than the patron. It was an entire they only proved the reverse by the quotat'on of that case,
mistake to say that this would interfere with the because that case showed that there was no pretence fur
tights of the patron, and upon this he could saying the necessity of a call existed at all. The man in
riot hogs looking back to the ancient times of the Scottish that case who had had no call was held to have as good a
Church, and picturing to his own mind the degree of con- right to the living as anybody who had ever been presented,
tempt with which a most venerable relative of his own, although they said a form had been omitted. The omis-
who led the General Assembly of •ticotland, one of the sion of that form was quite immaterial; it was as irnma-
greatest statesmen and one of the most accomplished terial to the settlement of a minister in Scotland
orators that this or any other country had ever seen—he as it was immaterial to the validity of a marriage
meant Dr. Roberts—if such an argument as that had been here, that the party should have resided so many
offered to him on the part of the Presbytery, in the face of c'Aiye in the place where the marriage was
their own error, he could not help supposing what his celebrated before that celebration
Ltoordk pi_liaacred,/,3l,V7,o3Arcets.
manly and practical understanding would have induced euired by the d
i er,ctoteyas
ptahre Nobleo and Learned Lord
.him to eey to the doctrine, that we don't mean to in- This threw great lipla
terfere wall the patron or with the people, but we only conceived upon his
argument,' because it showed that the
say that if any person is chosen whom the congregation call was held, and might be held to be rather a convenient
will nut accept, that choice shall go for nothing What thing, than any thing clic. It ought to be looked upon
also would his venerable colleague, De. Erskine, have as tile remnant of an old law, which had lae:n repealed.
said to a proposition so extravagantly wild, that was di- Whether it descended from the Rev elution, or frum the
redly calculated to set aside the rights of the patron? Books of Discipline, of the sixteenth century', was
ye, or even his venerable friend, the late Sir Harry Mon- immaterial ; it is as quite clear it was not a pre-
c;:def—a man of as honest a mind, and of as sound cedent condition, necessary for an induction. It might
iiv.edsagacious an understanding as any man who ever he very convenient, and it might be very use-
h the
been ventured to have been offered in his time. the affection, and of the learning of the individual, as well
If they had they would have been blown away out of any as of his ed:fying powers, it might indeed be very conve-
Court, Session, Assembly, or any dirk aisle of any nient that they should have the opportunity of coming for-
Church into which they might have been ir.troduced, by ward after a trial, with any objection they might have to
him in less than a fraction of time, for if ever there was a raise against him. But this could not give them the tight
Man who despised subtiltics it was Sir Harry Moncrief. He of veto without certain reasons. As an illustration of this
would not have hesitated to say—never try to do indirectly it was considered decent, and was a very proper form, to
what you dare not do openly arid avowedly, or never seek present the Sovereign to his people upon the day of his Coro-
te escape or to shelter yourselves from the natural and I nation ; but if every person present were to object to that
jest consequences of your own proceeding upon mysterious, I Sovereign, and the Coronation took place, that Coronation
vague, and general expressions, subtilties, and sophistries, I would be just as valid and effectual, as if no objection what-
which, as they never for a moment can benefit yourselves, ever had been made. He night also refer to the instance
never can deceive others. lie was morally certain these of marriage. Both in Scotland and England, a regular
would have been the expressions used by those venerable marriage required the publication of banns (except in the
(leads of the Church against any such arguments. Then, ease of a licence), end whoever solemnised a marriage
again, to make the thing still more absurd, it was without publication, was liable to Church censure. The
said the congregation had a right to say, We don't object was to ascertain that there was no lawful impediment,
like this man ; we don't like him worse than any such as pre-contract, consanguinity, or the want of consent
other man, but we would prefer any other man to on the pert of the parents of an infant. If those impedi-
him. Well, but would they even be benefited by any such ments were raised, the ceremony would be suspended.
doctrine? The moment they said they preferred any men But supposing the party objecting to the marriage, said
to A, if 13 was presented they would have still the same Ile bedw higive
lf no reason, o
lr
for
B; lady's an
tied so they might run through the whole alpha- why then such an objection would not be at-
bet, until they arrived at Z. The patron had a tended to_ at all ; tho marriage would go on, and be
ielit to appoint A. The Presbytery sustained the just as valid as if the dead silence prevailed which gene-
le esentation, and the Patron was not called upon to say rally prevailed on those interesting occasions. Well, then,
es. ny he chose that person, he being a perfectly qualified would s au
ha advocate for the pubdisplication of
with ; t ie
!Ise people must be allowed to say whether they liked him convenient and useful, and to make a marriage regular it
er not. Toe two things could not co-exist unless it were was necessary, but
it was not an absolutely necessary part
a 'd they had a joint choice ; and that had been said fur of the marriage. Precisely so was it in reference to the
the first time by the Act of the General Assembly, in call, either before or after the statute of Anne. He could
i 534, and by their acting upon that Act in the present not find that the call was a necessary part of the induction,
day, in the present case. Then it was said, they would or that it was a necessary condition precedent. And if the
not exercise this veto, or as it was construed, right ofdissent, force and effect to be given to it was to be to make it neces-
capriciously but conscientiously. Well, but then of the pa- sary and a condition precedent ; and if the Assembly were so
tren the same thing was to be said. The law did not protect to carry into execution that supposed effect of it, so as to
him in a capricious or unconscientious exercise of the make it a specific condition precedent, and that an induc-
trust which he held for the Church. Ile was quite sure tion could never take place without the consent of the male
that no parties would be found to present a clerk to the heads, he would say that by so dealing with it the statute
Bishop here, or a person to the Presbytery of Scotland, of Anne was abrogated, and the rights of the patron
and say that his reason for presenting that man was be- utterly destroyed. The only' remaining question was at
cause he was his pot companton—because he was his of the jurisdiction, and upon which he had no doubt what-
brother in the chase, or because he was the brother of a ever. Upon this there could not be a single doubt cast.
1 mistress. Those were all bad motives, and no man could Then it was said there were no means of carrying
be allowed in policy to act upon them. No more was it into effect their Lordships' decree ; and that the Su.
VI be expected that the people who dissented upon the preme Court of Session, supported by the House of Lords,
occasion of a presentation would avow that the in- which was the decision of Parliament by one of its
dividual was too strict in his doctrines—of a high Chambers—although they said the Presbytery had acted
tctoral character—that he preached the word of God erroneously—although they said the reason of the Prcsby-
rigtueously, in season, and out of season, as his Great tery was no reason at all—although they said, let the Pres-
Master had ordered him—that he refused access to the sa- bytery indict immediately, for there were no grounds for
craments to those whom he thought unworthy of admission refusing, the Presbytery would still refuse. The Noble
du. because he would catechise the people as to their and Learned Lord must say that he did not think it de-
not
I.,"sliind congregations would give those reasons for cent to suppose such a state of things. They might as
ig a man, but still they might exist. And this well suppose that Doctors' Commons would refute
Act allowed the greatest scope for anything of that descrip- to attend to a prohibition issued from the Queen's
lion—because b
Things were therefore
in that te:oect to what Yreitfono reasons were required to be given. Bench, without appealing against it. There were,
tptlhacee on a eery different footing indeed, cases of conflict between the two countries.
ay. were by the Act of 169—that There was one case of conflict upon a question of mar-
Act Led 'vane consistency
am objection to the party
It said if any man had range, which had lasted for twenty years or more, but
lapriets.ented, let him state that when a case had come up here upon a question of law, and
objection to the Church, and let the Church decide up on when the House of Lords had come to a decision upon
rca- it. The Act of 1834 did away with all necessit forhat law, had the Court of Session ever maintained their
eons k,cing assigned. If the present return of they General- law against that decision ? The Court of ses.
Asaernbly bad been that they had refused this man sion had never refused to obey their Lordships orders