The Sun.
London, England, 1859-12-28 00:00:00

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of Parliament, and that the same be promoted by
donations amrannuaLsubseriptiong." (Applause,)

Mr. BEAUFORD, the secretary,_ read the list of
donations and subscriptions already received,
amounting altogether to aboiit £5OO.
The meeting then broke up. -

TEE FREE IT OF SCOTLAND
AND THE CITIL COURTs.

On Friday the Court of Session delivered judg-
ment adverse to the Free • Church in a case which
has lately acquired great importance front the prin-
ciples it involves as to the relation of Dissenting
churches to the State, and which is at present a
subject of great interest and discussion throughout
Scotland. The case was a few months ago very
clearly stated, but it may be necessary shortly to
recapitulate the leading facts. The Rev. T.
M'Millan, of Cardross,• Dumbartonshire, was one of
several hundred ministers who left the Established
Church in 1843, and who united in anew ecclesias-
tical body called the Free Church, which may ba
said to comprehend nearly one-third of the
,people
of Scotland.. In 1856-7 Mr. M'Millan was pro-
ceededagainst by the Presbytery of the bounds on
a libel, charging him with certain -acts of drunken-
ness and improper conduct. The libel was partially
found woven by the Presbytery ; on appeal to the
Provincial Synod, a small 'pOrtionvof the accusation
was sustained, and an appeal
.was then taken to the
General . Assembly, the supreme tribunal of • the
-body, whose whole organisation is funded F•xactly
on the model of the Church of Scotland. The As-
sembly, on hearing the case (May, 1857), instead of
dealing supply with the points appealed, reverted
to a portion of the original accusation, and found it
proved, and at sane time dismissed Vac appeal. tln
consequence of that finding the Assembly sentenced
the accused to suspension sine die from the office of
the ministry, and declared his charge vacant. Mr.
M'Millan felt aggrieved by a judgment which had
not been regulated by the usual form of process,
and dealing with him, as he conceived, unjustly,
carried the case to the-Court of Session. The' As-
semblY, then sittingi indignant at the Appeal made
to the civil courts, cited Mr. M'Millan to appear at
the bar. He did so, was questioned if he had so
appealed, he replied in the affirmative, and was
thereupon without formal - process of any kint,
summarily and instantly deposed from the
ministry—the capital sentence of the ecclesiastical
courts: Mr. 3.P.Millan again appealed to the civil.
courts, and raised two separate actions against the
office-bearers of the Free Church Assembly, craving:
redress against these sentences and claiming repost-,
tion and damages. These itetions. were inet'by the
defenders -in • various pleas, the .leading one being
that the sentences now brought under review of the
civil courts were those of an independent and spiri-
tual body, over which the civil courts could have.
no control or jurisdiction. The Court of Seision,
viewing the case as a highly important one, called
for production of the standards of the Church, the
deeds under which the pursuer was amenable to the
ecclesiastical body,and. the minutes of the proceed-
ings against the pursuer. The defenders entered
elaborate written pleadings to show that they were
not bound to do so, and that the civil court had no
authority in any case to reviewtheir acts.. It was
in reference to these defences that the Court gave
judgment on Friday to the effect of holding that
the case in question was a question of contract, that
the Court had jurisdiction to inquire whetherit had
been so violated as to call for their interference. ,

The Lord President, in moving the judgment of
the Court, made a very able aualpis of the facts
and pleadings in the case. Coming to the law of
the case he said, we are here on a question as to a
body which has a constitution of its own, and we
are here to deal with the ease upon, that footing.
It appears to me that the pursuer, if he has really
suffered wrong, as he says he has, is entitled to re-
dress, like any other subject of the Queen, unless,
by his own voluntary act, he has relinquished the
right to seek such redress, and in some legal
way subjected himself to the po and authority
of others without the right o ess. On the
other hand, I think it is equally clear that the de-
fendants, as office-bearers and members of a religi-
,
ous association, or body tolerated la.y law, ale enti-
tled to all the benefits and privileges whichlructtir
leration gives. If their by-laws, or c nstitution, or
rules of government are not co4y to law—are
not illegal in themselves—the courts of law will not
interfere between them and their members in the
fair application and enforcement of such rules
against parties who have chosen to enter the body
and to subject themselves to those laws; but if the
office-bearers or the governing authorities in these
bodies go altogether beyond the sphere of the con-
stitution of the association—if they deal with a
member in a way that they were not authorised by
their constitution to deal with him—if they attempt
to exercise over him a power or authority which he,
by becoming a member, did not acknowledge—and
if, by so acting, they have done him injury, he will
not be precluded from seeking redress, nor will the
courts of law hold him precluded from getting re-
dress. Both parties have appealed to the contract;
we must therefore examine the contract. It is ne-
cessary that they should point out to us the con•
tract, and the clauses which so exclude. an appeal to
the courts, and by which this party is stated to have
placed himself under subjeCtion to authority which
precluded him from rights which otherwise would
have belonged to him. We must then examine the
sentence to see whether it is within or without the
contract. More than that, when we have got that
length, it may possibly be necessary to examine
under what circumstances that sentence was pro-
nounced. We must therefore have both the sentence
and the contract competently before us. I think,
therefore, that we should repel the defences as de-
fences against "satisfying the production," but re-
serve them quoad ultra, and remit to the Lord Or-
dinary to fix a time for " satisfying the production."
There is one plea which has been urged that I should
like to make a remark upon. It has been urged that
the party seeks redra:s by being reponed and that
we cannot meddle with this case because we cannot
make this party again a minister of the Free Church.
I confess I was not much moved by that argument.
Itis really the most common position in which courts
of law are asked to give redress. A party is wrong-
fully dismissed his master's service—the court does
not repone him, but it gives redress. A party meets
with a railway aecident—he loses his leg ' • we give
him redress, but we cannotzepone him (Laughter.)
The Court is asked to give that species of redress
which is the only one courts can substitute for that
which they cannot redress—pecuniary compensa-
tion. Whether this party will arrive at that sta.&
is a matter on which I cannot pronounce an opinion
now, since we are only at the preliminary stages of
the proceedings.
Lord Ivory, in expressing concurrence in the
judgment, said he thought the importance of the
present question appeared to be greatly exaggerated.
The parties were here at issue as to what their con-
tract was ; and this question must be decided by the
production of the contract. But were the decision
of this Court ever so unsatisfactory, the remedy was
open. The Free Church and its members would
only have to begin anew, and form with greater care
and better success a fresh contract more consonant
to the views and intentions of all parties.
Lord Curriehill also concurred. He said the Dis-
senting bodies' in this country, though they were
tolerated and protected by the State, were still in
tWeir nature voluntary associations, founded on vo-
luntary contracts, and the office-bearers whom they
appointed. had no authority over any persons who
were not parties to these contracts ; and their autho-
rity even over the latter did . not extend beyond
what was conferred on these functionaries by the
terms of the contract, nor did their authority en-
dureln
of the
gerthaenes whileeeiatietn.hey voluntarily remained
memberse
Lord Deas said the question was one of contract,
not of jurisdiction. If anything was clear in the case
it was that the defenders were invested with no ju-
risdiction whatever, ecclesiastical or civil. All juris-
diction flowed from the supreme power of the State ;
and the sanction of the same authority which enacted
the laws was necessary to the erection of courts, and
to the appointment of Judges and magistrates to ad-
minister the laws. The Established Church of Scot-
land had, and still has, its sanction. The statute law
conferred on it ecclesiastical jurisdiction, to be
exercised by kirk sessions, presbyteries, provincial
synods, and general assemblies, but there was no
such statute law applicable to the association called
the Free Church of Scotland. When'the defenders
separated from the Establishment they left all
jurisdiction behind them. If they meant to carry
it with them, as some expressions in their deeds
and writings produced would scorn to indicate, it
was enough to say that this could not be done. No
voluntary association could by any agreement
among its members assume a jurisdiction which
flowed only from the legislative power and the
royal prerogative. The Free Church was a volun-
tary association, tolerated and protected by the law,
as all voluntary associations for lawful purposes
were in this free country. What was termed tole-
ration was in reality freedom—just as much as if
there were no Established Church in the country.
But the presbyteries, synods, and assemblies of the
Free Church had not been erected into courts