Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017818125 Cornell University Library KDC 965.A4 1878 Leading ecclesiastical cases, decided in 3 1924 017 818 125 LEADING ECCLESIASTICAL CASES DECrOBD IN THE COUKT OF SESSION 1849-1874 Printed by R.-&' R. Clark FOR T. & T. CLARK, EDINBURGH. LONDON . STEVENS AND SONS. . . STEVENS AND HAYNES. GLASGOW . . . J- SMITH AND SON. LEADING ECCLESIASTICAL CASES DECIDED m THE COUET OF SESSION 1849-1874 p,tptmteb txom tht €onxt ot Sie&mn ^^portB EDINBUEGH T. & T. CLAEK, LAW BOOKSELLEES 1878 /^/?7 7^ NOTICE. In conducting discussions upon ecclesiastical questions in Scotland, frequent reference has necessarily to be made to the decisions of the Court of Session as bearing upon the legal position of the various churches. As the reports of these decisions are scattered through law reports, not to be found unless in professional libraries, it has been considered desirable to have a reprint of the leading cases decided since 1843. The present Volume contains an exact reprint of these cases, taken from the Court of Session Eeports, and printed without note or comment. For the sake of convenience, the cases have been arranged as affecting the different churches — those relating to each church being thus brought together according to the date of decision. Only one of the cases included in this volume — that of Forbes V. Eden — was appealed to the House of Lords, and the date of affirmance of the Court of Session's decision is noted at the end of the case. A list of the cases is prefixed, with the rubric of each case added, for the purpose of facilitating reference. INDEX OF CONTENTS. CHURCH OF SCOTLAND. PAGE 1. Stueeock v. GsMia, July 3, 1849, 11 D. 1220 . . 1 Separation — Privilege — Chv/rch — Malice — Probable Came — Process — Issue. — 1. No action for damages will lie against a Clmrch Court of the Established Church for any sentence or judgment pro- nounced by them in a proper case of discipline duly brought before them, regularly conducted, and within their competency and pro- vince as a Church Court, even although it be averred that the judg- ment was pronounced maliciously, and without probable cause.— But observed, that any sentence or judgment of these Courts, which is beyond their jurisdiction, or whereby they refuse to exercise powers conferred upon them by law, will be reduced and set aside, and damages awarded to any person injured thereby. 2. In a case where an Inferior Church Court did not act judi- cially, but merely presented a, petition to the General Assembly, praying for advice, on a narrative which was averred to be false, malicious, and calumnious, and made without probable cause, the Court held that no action of damages would lie against the Court, in respect the petition was intimately connected with proper judicial proceedings before them, and was composed almost entirely of a statement of these proceedings. 3. A Kirk-Session pronounced a sentence against a member of the Church, which was reversed by the Presbytery and Synod on appeal ; but the Session, notwithstanding, refused to obtemper the judgment of the higher Courts, and reiterated from the pulpit, by means of the minister, the charges contained in their original sentence. In an action of damages against them for so doing, — Held that it was unnecessary to libel malice or want of probable cause, but simply that what they did was done falsely and calumniously, and in violation of duty. 4. A Kirk-Session having the right to nominate certain scholars to a mortification, refused to do so, and intimated to parties interested therein that their reason for so doing was, that the teacher of the school was unfit for and neglected the duties incumbent on him as teacher. Held not necessary, in an action of damages, to libel malice, but merely that what the Session said was false and calumnious. 2. LocKHAET V. Peesbyteey OF Deee, July 5, 1851, 13 D. 1296 29 Chv/rch — Jurisdiction. — A minister who had been deposed by the General Assembly on the groimd of immoral conduct, presented a note of suspension against the sentence being carried into effect, on iriii INDEX OF CONTENTS. PAGE the grounds that the libel on which the sentence proceeded was defective in the instance, that evidence had been improperly rejected, and that the procedure before the Presbytery had been generally irregular and oppressive. The Court— holding that the offences committed by the suspender were proper for the cognisance of the Church Courts, and that such being the case, the Civil Court had no right either to control the Church Courts in their procedure, or to review their sentence on its merits — refused the note. 3. PateesonV PeesbyteryofDunbae, March9, 1861, 23D. 720 38 Ghwrch — Jwrisdidion — ItiUrdict. —A minister having been served with a libel, charging him with intoxication, lodged defences, and was thereafter cited to appear personally at a certain meeting of Presbytery, on which occasion he was represented by counsel and agent who pleaded intervening insanity, of which he offered to lead evidence at a future diet, in bar of any further procedure. The Presbytery, in respect of his having given in defences, and thus sisted himself as a party to the cause, and also in respect of the vagueness of the crave, refused to sist proceedings. A note of sus- pension and interdict was presented against the Presbyteiy adopting further procedure until the plea of insanity should have been con- sidered and disposed of. The Court {aff. judgment of Lord Jervis- woode), holding that in the circumstances stated there was no ground for interference, refused the note, without answers. 4. Wight v. Peesbyteey of Dunkeld (Auchtergaven Case), June 29, 1870, 8 M. 921 . . . . .46 Church, Courts of — Jurisdiction — Ecclesiastical Offence — Sus- pension. — A minister of the Established Church was served by his Presbytery with a libel charging him with "fornication, as also indecent and scandalous familiarity by a minister of the gospel with a woman;" He pled guilty to "scandalous familiarity with a woman," but denied fornication or indecent familiarity. The Pres- bytery, in February 1870, accepted his plea, and suspended him for six months. On the petition of five of his elders, who had not appeared in and were not parties to the proceedings before the Pres- bytery, the General Assembly, held in May 1870, found that the proceedings of the Presbytery in accepting the plea without dispos- ing of the charges in the libel were irregular, and ordained them to proceed with the libel. The minister presented a suspension of this judgment of the Assembly, on the grounds (1), that it was incom- petent for the petitioners, who were not parties to the proceedings of the Presbytery, to apply to the Assembly by petition ; and (2), that having been tried and sentenced by a competent Court, and undergone mpre than one-half of his sentence, the Assembly ex- ceeded their jm-isdiction in ordering him to be tried again on the same libel. Held that the proceedings complained of were within the exclusive spiritual jm-isdiction of the Church Courts, and could not be reviewed by the Court of Session. 5. Peesbyteey of Lews v. FEASEE,May 16, 1874, 1 E. 888 . 55 Chwrchr— Ecclesiastical Courts— PFitness— Warrant of Citation^ Sheriff.— Held that it is competent for the Sheriff, as Judge INDEX OF CONTENTS. Ordinary, on the application of a Presbytery or other recognised judicature of the Established Church of Scotland, to issue letters of first and second diligence against witnesses neglecting or refusing to attend, on the citation of the Church Court, to give evidence in any competent proceeding before it. Opinion {per Lord Ardmillan) that the aid of the Civil Court to enforce the attendance of witnesses may be given, and ought to be given, when craved and required, even in causes ■within churches not established. FREE CHURCH OF SCOTLAND. M'MiLLAN V. General Assembly, Free Chuech (1st Oar- dross Case), December 23, 1859, 22 D. 290 , . 63 Chiirch — Dissenters — Society — Jurisdictiotir— Title to Sue — Reduc- tion — Satisfying the Production. — A minister belonging to the " Free Church" having been suspended from office by the "General Assembly " of that body (as alleged irregularly), applied to the Lord Ordinary on the Bills for interdict, in consequence of which applica- tion he was summarily deposed, as he averred, in absence, and with- out being allowed to be heard. He brought actions of reduction of both sentences, and of damages against the "General Assembly," and also against cei-tain individual members of it, alleging, inter alia, that the sentence of deposition was ' ' a gross and flagi'ant violation of the contract, or compact and rules of the association, under which the pursuer held his office and emoluments as Free Church minister ; " and that by, and in consequence of, the defenders' pro- ceedings, he had been seriously injured in his character, feelings, and patrimonial interests, and had been also deprived of his income, and that they were actuated by malice and ill-will, and without reasonable cause. The defenders pleaded that the pursuer bad no title to sue ; that the sentences complained of being pronounced in a matter of Church discipline, by an association of Christians tolerated by law, the Civil Court could not interfere ; that, accord- ing to the contract or constitution of the association, the pursuer was bound to submit to the exclusive authority of theu- "General Assembly," and that the defenders had acted strictly within the line of their duty. Meld (altering judgment of Lord Benholme), that a voluntary association of Christians had no jurisdiction in the proper legal sense of that term, and that it was necessarj' to examine the contract in order to see whether by it the pursuer had precluded himself from seeking redress, and that it was also necessary to ex- amine the sentence in order to see whether it fell under the con- tract : — therefore defences, as against satisfying the production. M'MiLLAN V. GrENEEAL ASSEMBLY, FeEE ChUECH (2d Car- dross Case), July 19, 1861, 23 D. 1314 . . .118 Church — Dissenting Establishment — Meduction— Jurisdiction. — Ifeld (off. judgment of Lord Jerviswoode) that sentences of suspen- sion and deposition pronounced by a voluntary religious association against one of its ministers were not such spiritual acts as could not INDEX OF CONTENTS. FAOE competently be taken cognisance of by the Civil Court ; and that an action of reduction and damages against the General Assembly of the association, and certain individual members, on the allegation that such sentences had been irregularly pronounced, in excess of their powers, and in violation of the conditions which regulated the proceedings of the association amongst themselves, and which were alleged to form a contract amongst the members of the association, was competent ;— and enquiry into the constitution and regulations of the body directed. 8. M'MiLLAN V. Geneeal Assembly, Free Chubch (3d Car- dross Case), July 9, 1862, 24 D. 1282 . . .170 Bepa/mtion — Ohwrch Judieaiory — Process — Title to Sue — Beduc- tion—Issms — Malice. — In two conjoined actions at the instance of a deposed minister of the Free Church, the first agaiast the General Assembly of that body, and the moderator and clerks thereof as representing the same, for reduction of a sentence of suspension and for damages ; and the second against the same parties, and also against three individual members of the Assembly as individuals, for reduction of a subsequent sentence of deposition and for damages, the grounds of both actions being an alleged excess of power and violation of the contract or constitution of the association by the General Assembly ; and there being no allegation of malice, except- ing one against the individual defenders, which was not insisted in, the pursuer stated that, in the event of the first action being held untenable, he could not insist in the second on the record as it stood ; — Held (diss. Lord Deas) that the reductive conclusions were only auxiliary to the demand for damages, and could not be main- tained by themselves ; that the claim of damages could not be main- tained as laid ; and therefore issues disallowed and actions dismissed. Opinions {per Lord President), that the General Assembly of the Free Church was not a body which could, in its collective capacity, or by its office-bearers, be convened in an action or subjected in damages ; {per Lord CurriehiU), that a claim of damages could not be maintained against parties upon whom judicial functions were lawfully conferred by private agreement, on account of an act done in the exercise of such functions, without an allegation of malice ; {per Lord Deas), that a conclusion for reduction, with a statement of intention to foUow up the decree by an action of damages, and with- out qualification of any other interest to pursue the reduction is competent. UNITED PRESBYTERIAN CHURCH. Cbaigie v. Marshall (Kirkintilloch Case), January 25, 1850, 12 D. 523 . . . . . . . 207 Chwrch — Trust— Contract. — The title to a dissenting meeting- house was vested in teustees, "for behoof of the members of the Associate Congi'egation in Kirkintilloch, commonly called Seceders, and presently in connection with the United Secession Church." The minister of the congregation declared his separation from the Secession Church, and a majority of the congregation adhered to him. Shortly thereafter a union took place between the Secession INDEX OF CONTENTS. xi PAGE and the Relief Churches, the two bodies taking the name of the United Presbyterian Church. In an action by a miaority of the congregation, who adhered to the United Presbyterian Church, against the minister and the majority, — Held, that the defenders having separated from the Secession Church, was not a violation of the conditions on which the property of the meeting-house was held in trust, so as to lead to a forfeiture of their rights to it, they still continuing to hold the doctrines and opinions originally maintained by that body, and that they were entitled to refuse to concur in the union with the Relief Church, and were not bound to submit them- selves to the change in the Church government consequent upon it. 10. OAiENCEOSSuMEEK(OamoustieCaBe),May28,1858, 20D. 995 278 Trust — Church — Property — Acquiescence — Mora — Personal objec- tion. — Property consisting of a piece of ground, with a church and dwelling-house buUt thereon, was held by certain persons "as trustees and managers appointed by and in trust for behoof of" a congregation of Seceders "adhering to the original principles of the Secession." The trust-deed provided that the subjects should belong to the congregation for which they were so held, and to those who in time coming should accede thereto, and that "any trustee permanently removing from the bounds of the said congrega- tion, or leaving the foresaid principles, or otherwise becoming dis- connected with the said congregation, shall forfeit his right as trustee, and that ipso fcKto and without any formal vote. " In an action at the instance of certain persons designing themselves the only surviving and continuing trastees, and also of parties designing themselves members of the congregation, against a majority of the trastees, who with the congregation, had united with the Free Church, to obtain restitution and possession of the property, on the ground that the defenders had, by their union, ceased to be members of, or trustees for, the congregation, and had illegally kept posses- sion of the property ; — Held that the pursuers, not having taken any steps dehito tempore to oppose or prevent the union, were excluded from insisting in the action. 11. Coupee v. Bukn (Thurso Case), December 2, 1859, 22 D. 120 292 Chwrch — Dissenters — Trtist. — A congregation of Seceders pos- sessed a chapel which was vested in trastees for behoof of a con- gregation in connection with the body that afterwards became the " United Associate Synod of Original Seceders. " A majority of the Synod joined the Free Church ; the minority met and constituted themselves the Synod, adhering to their former principles. The congregation was divided, but a majority was in favour of the union. In an action of declarator by the minority to vindicate their right to the chapel ; — ffeld {alt. judgment of Lord Ardmillan), that, having regard to the trust-title under which the property was held, the chapel belonged to the part of the congregation which adhered to the principles maintained by the chittch for whose behoof it was vested in trustees ; that a majority of such a body were not entitled to compel the minority to unite with any other body, or divert the chapel from the purpose for which it was held in trust ; that the principles of the Free Church and of the United Associate Synod of Original Seceders were different ia essential particulars ; and there- fore, that the pursuers were entitled to decree, as concluded for. INDEX OF CONTENTS. SCOTCH EPISCOPAL CHURCH. PAGE 12. Dunbar v. Skinnbe, March 3, 1849, 11 D. 945 . . 352 Ohwch— Bishop.— The office of " Bishops of the Protestant Epis- copal Church in Scotland," is not recognised by the law of Scotland, Church — Jurisdiction. — The authority of the judicatories, courts, synods, or similar assemhlies of dissenting sects, over the ministers or members of these sects, depends entirely upon contract between the judicatories and the parties submitting themselves to their authority ; and, on the violation of these contracts by the judi- catories, the other parties may withdraw themselves from their authority, and an ecclesiastical censure pronounced by them is not a privileged act. 3. A clergyman of the Church of England subscribed, under certain conditions, the canons of the Scottish Episcopal Church, and submitted himself to the authority of one of the Bishops of that Church. He afterwards withdrew his subscription, alleging, as his reason, that the conditions on which he had subscribed had been violated by the Bishop. An ecclesiastical sentence against him was subsequently issued by the Bishop. In an action of damages at the instance of the clergyman against the Bishop, on the ground that the sentence pronounced was libellous, — Seld, 1. That the Bishop had no authority at law to pronounce such sentence. 2. That his authority, if he ever had such, depended on the contract of sub- mission by the clergyman, who was entitled to withdraw from it if its conditions were violated. 3. That the Court has jurisdiction to try whether the contract was violated. 4. Defence that the act of the Bishop was privileged, repelled; the clergyman having offered to prove a violation of the conti-act. 13. EDWAED3 1). Begbie, June 28, 1850, 12 D. 1134 . . 376 Beparation — ^lander — Church — Dissenters — PrivUege. — An action of damages agaiast the vestry of an Episcopal chapel for slanderous words used in resolutions come to by them in their character of vestrymen, will lie at the instance of a member of vestry, provided the injury is charged as having been done maliciously, and without probable cause, or in violation of duty ; — Terms of issues settled as applicable to such a case ; and also in reference to the publication of the resolutions from the pulpit by the clergyman. 14. PoEEES V. Eden, December 8, 1865, 4 M. 143 . . 388 Church — Reparation — Title to Sue — Beduction. — A clergyman of the Scotch Episcopal Church brought an action against the members of a General Synod of that Church, concluding— (1) for reduction of oei-tain canons enacted by the Synod, which altered the canons in force when the pursuer was ordained ; (2) for declarator that it was ultra vires of the Synod to enact these, and that he was entitled to celebrate divine service according to the fonner canons ; and (3) for damages for injiuy done to him thi-ough his bishop refusing to license a curate, engaged by the pursuer, who would not subscribe the new canons. Averments which Held not relevant or sufficient in law to support the conclusions of the Ubel. INDEX OF CONTENTS. xiii Observed, per Lord Lord Justice- Clerk (1), That if a society, ■whether for secular or religious purposes, is bound together by articles of constitution, the general rule of law is, that the majority may be restrained, on the application of the minority, from carrying into effect any fundamental alteration of such articles. (2) That there may be cases of breach of contract where the party complaining has no such interest to enforce the contract as can be recognised by court of law. (3) That there may be a, distinction, arising from difference of interest, between the title of a lay and of a clerical member of a dissenting communion, to complain of a violation of the fundamental articles of the association. Ohsened, per Lord Cowan, that to entitle a party to call upon the Court to adjudicate upon the acts of a voluntary church court in matters ecclesiastical, he must set forth some civil wrong, justify- ing a demand for redress, or patrimonial injury, entitling him to claim damages. LEADING ECCLESIASTICAL OASES DECIDED IN THE COURT OF SESSION, 1849-1874. July 3, 1849. Peter Stuerock, Pursuer. — Cowan — Millar. The Rev. A. 0. Greig and Others, Defenders.— Jw^& — /. A. Wood. Second Division. — Jury Clerk. E¶tion — Privilege — Church — Malice — Prolable Cause — Process — Issue. 1. No action for damages will lie against a Church Court of the Estab- lished Church for any sentence or judgment pronounced by them in a proper case of discipline duly brought before them, regularly conducted, and within their competency and province as a Church Court, even although it be averred that the judgment was pronounced maliciously, and without probable cause. — ^But observed, that any sentence or judgment of these Courts, which is beyond their jurisdiction, or whereby they refuse to exercise powers conferred upon them by law, will be reduced and set aside, and damages awarded to any person injured thereby. 2. In a case where an Inferior Church Court did not act judicially, but merely presented a .petition to the General Assembly, prajdng for advice, on a narrative which was averred to be false, malicious, and calumnious, and made without probable cause, the Court held that no action of damages would lie against the Court, in respect the petition was intimately connected with proper judicial proceedings before them, and was composed almost entirely of a statement of these proceedings. 3. A Kirk-Session pronounced a sentence against a member of the Church, which was reversed by the Presbytery and Synod on appeal ; but the Ses- sion, notwithstanding, refused to obtemper the judgment of the higher Courts, and reiterated from the pulpit, by means of the minister, the charges con- tained in their original sentence. In an action of damages against them for so doing, — fleM that it was unnecessary to libel malice or want of probable cause, but simply that what they did was done falsely and calumniously, and in violation of duty. 4. A Kirk-Session having the right to nominate certain scholars to a mortification, refused to do so, and intimated to parties interested therein that their reason for so doing was, that the teacher of the school was unfit for and B 2 LEADING ECCLESIASTICAL CASES neglected the duties incumbent on him as teacher. Held not necessary, in an action of damages, to libel malice, but merely that what the Session said was false and calumnious. Peter Stuerock brought an action of damages against the minister and elders forming the Kirk-Session of Blairgowrie, concluding — 1st, Against the Kirk-Session, for damages said to have been sustained from certain proceedings adopted by them in the character of a Church Court ; and, 2d, Against the Eev. A. 0. Greig, minister of the parish, for damage said to have been caused by calumnious statements made by him in an individual capacity. Sturrock, in the summons, stated, that in November 1845 he was appointed assistant schoolmaster for the parish of Blairgowrie, in which capacity he gave great satisfaction, and in August 1846 was unani- mously elected assistant and successor to the parochial schoolmaster : That the Kirk-Session, about the month of November 1846, conceived a groundless ill-will against him, and followed it up under the cloak of official duty, by the adoption of measures calculated to destroy his char- acter and usefulness, and to mar his success in life : That they accord- ingly, to gratify private hostility, and in violation of their public duty, resolved, without cause or pretext, to arraign him as an oflfender at their bar; and, as a preliminary step, on the 17th November 1846, the defender, Mr. Greig, with their sanction and authority, called on the pursuer to meet him at a private interview relative to a charge they were to prefer against him : That the pursuer waited on Mr. Greig at the manse, who then accused him of irregular attendance at Church and at ordinances during the preceding six months, and in intemperate language asked him to explain the cause, which he did ; but the explanation did not satisfy Mr. Greig: That on the 22d December 1846 he was cited to appear before the Session on 24th December, "to answer to the charges of irregular attendance and neglect of ordinances, and also to a certain fama existing against you : " That this citation, so far as regarded the existence of a fama, was false and calumnious, and was issued without pretext and probable cause : That on appearing before the Session, the pursuer made the same state- ment as he had formerly done to Mr. Greig; but instead of accepting the explanation, they, because it differed from a false and perverted account of the interview between him and Mr. Greig, drawn up by the latter, made it the foundation of a charge of falsehood and prevarication against him. With reference to the alleged fama, he denied its exist- ence, and they refused to explain the charge which it involved. They stated, however, that the certificates he had brought with him to Blairgowrie, and on which the Session had acted in admitting him a member of the church, were not sufficient. On this, though not bound to do so, he offered to obtain additional testimonials. On the 19th January 1847 he intimated to the Session-clerk that he was ready to produce the documents on two hours' notice, but no notice was taken of this communication. That on the 2d February the Kirk-Session met, and, without giving DECIDED IN THE COUET OF SESSION. 3 the pursuer any notice, pronounced a judgment, finding, " 1st, That while Mr. Sturrock is guilty of the charges of irregular attendance on the preaching of the Word, and absenting himself from the Sacrament of the Lord's Supper, as aforesaid, yet the reasons which he assigns appear to them to be evasive, futile, and unsatisfactory. 2d, That in refusing to produce the necessary certificates which the Session required at a former meeting, he evidently shows a disposition to treat the requisition of this court with contempt, and manifests a determination not to satisfy the members thereof in regard to the point upon which he was interrogated, namely, as to whether or not he underwent the discipline of the church for the sin of fornication, of which he was guilty when residing in the neighbourhood of Perth. 3d, That in denying the statements which he made to the moderator, when, at the request of the Session, he (the moderator) had a private interview with him, and, as set forth in the moderator's report, contained in the minute of 21st December last, he is guilty of deliberate falsehood ; and especially as the Session have not only the testimony of their moderator, in whom they have every confidence for the truth and correctness of said state- ments, but also the declaration of an individual who was present when these statements were made by Mr. Sturrock, and who is ready to make oath that these statements were not only the substance, but the very words which Mr. Sturrock uttered. On these grounds, therefore, the Session, considering that Mr. Sturrock's conduct is highly unbecom- iilg the character of a Christian and a communicant, unanimously find that they .cannot do otherwise, consistently with a sense of the duty which they owe to God, to their own souls, and to the church of which they are office-bearers, than pass upon him the sentence of suspension. And they accordingly did, and hereby do, suspend the said Peter Sturrock, sine die, from the enjoyment of sealing ordinances, aye and until such time as he shall satisfy the Session upon all the points in question ; and they instruct their clerk to give him intimation of said deliverance." The pursuer averred that this judgment was pronounced in his absence at a meeting of Session which he had not been warned to attend, and was, moreover, unjust, illegal, calumnious, and oppressive, inasmuch as, without any proof whatever, and in the face of his denial, it found him guilty of grave offences against church discipline and morality, of which in point of fact he was innocent, and farther suspended him from the privileges of the church ; and the Eark- Session, in pronouncing it, acted in violation of the duties of their office, in order to gratify personal feelings of hostility and ill-will against him. The summons farther set forth, that he, on these grounds, appealed to the Presbytery of Meigle, who, in the first place, appointed a com- mittee of their number to meet with the parties, with a view to healing measures, but the Kirk-Session refused to meet with the committee ; that thereafter the Presbytery reversed, m hoc statu, the judgment of the Kirk-Session, and remitted the case to them to proceed according to the rules of the Church. 4 LEADING ECCLESIASTICAL CASES That the pursuer was thereafter cited to appear before the Session on the 5th May, which he did ; on which they, without further inquiiy or proof, adopted the same resolutions, and passed the same sentence of suspension from Christian privileges. On an appeal to the Presbytery, they, on the 22d June 1847, una- nimously found, "That as the appellant, on coming to Blairgowrie, produced a certificate signed by an elder of St. Bernard's, Edinburgh, bearing that he was in full communion with that congregation, and was admitted a member of the church of Blairgowrie on producing the same; and that a certificate from the minister and two elders of St. Bernard's, also bearing that Mr. Sturrock was iu full communion with the church, was produced to the Kirk-Session of Blairgowrie at their meeting on 5th May last, it is incompetent in said Kirk-Session to review the pro- ceeding of St. Bernard's Session, or call in question anything in regard to the appellant prior to his admission as a member of that congrega- tion ; find also that no evidence has been laid before this Court in support of the charge of falsehood brought against Mr. Sturrock ; find further, that with regard to his being absent from divine ordinances, satisfactory reasons had been stated, and which reasons have not been proved untrue by the Kirk-Session of Blairgowrie : Reverse the sentence of suspension from sealing ordinances passed against him by the said Kirk-Session." The summons further narrated, that an appeal by the Session was dismissed by the Synod, on the ground of informality ; and that Stur- rock then applied to Mr. Greig to baptize his child, born pending the above proceedings. This application was laid before the Kirk-Session, who, on 2d November 1847, "unanimously agree that they are not justified, in present circumstances, in granting sealing ordinances to Mr. Sturrock, and resolve accordingly." Sturrock appealed to the Presbytery, who, on the 2 2d December 1847, found, " That the judgment of the Presbytery, of date 22d June, not having been set aside by the sentence of the superior Court, which sentence has not been appealed against by the Kirk-Session of Blair- gowrie has become final, and that thereby Mr. Sturrock is declared to be in full communion with the Church : Find that the Kirk-Session of Blairgowrie are not entitled to commence de novo a prosecution of the charges against Mr. Sturrock, thus finally disposed of; and that, as no new charges subsequent to the date of the deliverance of Presbytery have been brought by said Kirk-Session against Mr. Sturrock, and the members of said Kirk-Session present do not allege that any new charges exist against him, find that the Kirk-Session of Blairgowrie were not warranted in refusing Mr. Sturrock Church privileges, grant the prayer of the petition, and ordain the Eeverend A. O. Greig to baptize the petitioner's child. " That this decision was confirmed by the Synod, but appealed by the Session to the General Assembly. 'The pursuer further averred, that besides the appeal, the Kirk- Session presented a petition to the General Assembly, in which it was falsely, maliciously, and calumniously stated, that a farm had existed DECIDED IN THE COUET OE SESSION. 5 against the pursuer, in 1844, of his having been guilty of antenuptial fornication when residing in the neighbourhood of Perth, and that the fwma had been revived in the parish of Blairgowrie ; that the Elirk- Session of Blairgowrie had been put at defiance by the pursuer, and were prevented from vindicating their own authority, and from subject- ing him to discipline for his misconduct, by the sentence of the Presbytery of Meigle; and prayed to reverse the judgment of the Presbytery: That the General Assembly unanimously dismissed the appeal, and refused the petition ; and the charges against the pursuer were thus finally dismissed : That, nevertheless, the Kirk-Session, on or about the 30th May 1848, in violation of their duty, and to gratify feelings of animosity, prepared and recorded a minute, in which these charges were in effect reiterated as true ; the sentences of the Church Courts in the pursuer's favour were misrepresented ; his restoration to Church privileges was held forth as an injury to true religion ; and the responsibility of that step declared to rest with the superior courts alone ; and this minute, by authority of the Session, was read by Mr. Greig from the pulpit to the congregation on the first Sunday thereafter : That, further, Mr. Greig, by authority of the Session, continued to refuse to baptize the pursuer's chUd ; and they met all demands for Church privileges by a reiteration of the old charges, and other accusa- tions equally unfounded, but equally hurtful to his feelings, and injurious to his character and patrimonial interests. The summons then stated that a fund existed, known as the Barty Mortification, for the purpose of. defraying the education of a certain number of poor children. The fund was managed by an independent board ; but the nomination of the children for the parish of Blairgowrie rested with the Kirk-Session. In September 1847, a boy had been removed from the School, and the pursuer intimated the fact to the Session, that the vacancy might be filled up. They, however, on the 1 4th November, drew up a minute, by which the pursuer was inculpated, and sent an extract of it to the Local Board of Trustees. That board, after full deliberation, found that there was nothing in the pursuer's conduct of which they required to take notice ; nevertheless the Kirk- Session, on the 14th December 1847, recorded a minute, describing the pursuer as glaringly deficient in his calling, and careless about the pupils committed to his care, and bearing that the Session, " considering that while they have all along endeavoured to discharge their duty faithfully and for the best interests of the Mortification, and being unwilling to incur the responsibility of placing the poorest child under the charge of one who, in their opinion, has shown himself so unfit for the situation which he holds, or to come into any farther unpleasant contact either with Mr. Sturrock or the Local Board, which they must necessarily do, if in the discharge of their duty they take cognisance of any neglect, do unanimously agree to decline filling up the vacancies in said Mortification, to which they have the right of nomination, so long as Mr. Sturrock continues assistant teacher in the parish School." The pursuer farther set forth, that the Kirk-Session afterwards, on the 1st and 3d of February 1848, recorded minutes with regard to 6 LEADING ECCLESIASTICAL CASES tlie examination of the pursuer's school, which were false and calumnious, and transmitted them to Mr. Thomas, clerk of the Guildry Incorporation of Perth, who were connected with the general management of the Barty Mortification. The summons also narrated several statements made by Mr. Greig in an individual capacity, which were averred to be false and calumnious. Defences were lodged by the Kirk-Session, in which they denied or explained the charges above detailed. A remit was made to have issues framed. The first issue approved of by the issue clerks was as follows : — It being admitted that the pursuer is assistant schoolmaster, and suc- cessor to the schoolmaster of Blairgowrie, and that the defenders are minister and elders of the said parish, and constitute the Kirk-Session thereof, and that at meetings of the said Kirk-Session, held on or about 24thDecember 1846, SdFebruary 1847, 5th May 1847, and 2d Novem- ber 1847, the minutes set forth in the schedule hereunto annexed were recorded by the said Kirk-Session : It being also admitted that a petition was presented to the General Assembly of the Church of Scotland by the said Kirk-Session on or about the 9th day of May 1848 : 1. Whether the said minutes, or any part of them, and the statements in the said petition, or any part of them, are of and concerning the pursuer ; and falsely, calumniously, maliciously, and without probable cause set forth that there existed a fama against the pursuer, that he had been guilty of the sin of fornication when residing in the neighbour- hood of Perth, and represent the pursuer as guilty of falsehood, and of conduct unbecoming the character of a Christian, of a communicant, and of a teacher of youth ? And whether the pursuer was thereby wrong- fully, and maliciously, and without probable cause, suspended from church privileges, all to the loss, injury, and damage, of the pursuer ? Two other issues were proposed as applicable to the circumstances above narrated, the one relating to the publication from the pulpit of the minute of Session of 30th May 1848 ; the other, to their procedure with regard to the Barty Mortification. These issues will be found at the end of this report. The defenders pleaded that they were not liable in damages, in as much as the whole of the proceedings adopted by the Kirk-Session were adopted by them in their character of a Church Court. The authorities referred to by the parties will be found stated and commented on in the opinions of the Judges. The Lord Ordinary reported the case. Lord Jtotioe-Clerk (Hope).— In the course of the discussion on the first of the proposed issues, which alone raises any very important question, two things were admitted and practically settled— first, that the procedure and judgment of the Kirk-Session on the matters referred to, and a subsequent petition to the General Assembly, which was an 'entirely separate and independent proceeding, must be considered and treated separately, both in discussion, and in issues if found to be the subject- DECIDED IN THE COURT OF SESSION. 7 matter of action ; and, secondly, that as to the proceeding before and in the meeting of the Kirk-Session, that which was complained of as a libel, and intended to be made the ground of a claim for damages, was the findings and sentence following thereon of the Kirk-Session, in a question of discipUne taken up by them. The procedure before the Kirk-Session raises the important question we are to decide — a question of the greatest delicacy, and of unspeakable importance. With a view to that, the material point is the matter of fact already adverted to, that the pursuer distinctly stated to us, that the ground of action against the Kirk-Session for defamation and damages in this part of the case, was the actual findings and sentence of the Kirk- Session in the case of discipline brought before them. He admitted, most fully and fairly, that he did not found on any preliminary state- ments or narrative in the minutes, but distinctly, solely, and purely on the findings and sentence pronounced by the Kirk-Session, as their deliverance and judgment on the matter which came before them. The defenders then maintain that no action will lie in law against them, the Kirk-Session — minister and elders — for any sentence or judgment pronounced by them in a proper case of discipline duly brought before them — pronounced by them as a Church Court, on matters which are clearly proper questions of discipline, and so within their competency and province as a Church Court, even although the pursuer avers that the findings and sentence — their judgment, in short — was pronounced maliciously and without probable cause. I add the latter quality, because none of us had any doubt that the want of probable cause in any view must be averred, and because, when the pursuer came to explain his case, he substantially and practically admitted that he must establish to the Jury the absence of probable cause. The plea of the defenders, however, is, that even when these qualities are distinctly alleged, still no action for damages can, on the facts averred, be maintained in point of law. Then, what are the facts, as they appear on the face of the pursuer's statement, and the proceedings he sets forth? Pirst, that one of the Kirk-Session, the minister, brought before them, and that the Session entertained, a charge involving a matter of Church discipline against the defender, he being a member of the Established Church, and subject to its discipline as such, and also as the parochial schoolmaster of the parish : That this charge was taken up by the Kirk-Session in its capacity as a judicature of the Church : That the matters of complaint against the pursuer, so stated to the Kirk-Session, were within the cognisance and competent jurisdiction of the Kirk-Session, as proper matters of ecclesi- astical discipline, according to the laws of the Church, apart of course 8 LEADING ECCLESIASTICAL CASES altogether from any question as to the propriety or discretion of the pro- ceeding ; this was distinctly admitted : That the Kirk-Session took the matter up in their capacity as a Church Court, and in no particular went heyond their duty, competency, and province as such judicatory — laying aside as wholly immaterial, as it was admitted to be, the irregularity in point of form on the first reason, in holding that the party ought to have appeared, in consequence of a certain letter, and was pronounced against in absence as contumacious : That his case was entered on and discussed — his defences heard, and professedly taken into consideration, and judgment finally and competently pronounced on the charges then competently brought before them. All these facts are, in truth, admitted, in the way the case is brought before us. Hence the Kirk-Session were acting within their competency, duty, and authority as a Church Court, in considering a question of discipline duly brought before them, respecting a party, ratione officii, and ratione status personalis, subject to their discipline, being a member of the Church. Then the procedure is that of a deliverance and judgment by the Kirk-Session acting as a Church Court on this proper matter of discipline brought before them as a Court, to whose ecclesiastical jurisdic- tion (I prefer the term to " spiritual ") the pursuer was subject. He avers that they entertained, entered upon, and disposed of the alleged violations of- religious duty, and irregularities in point of discipline and order, by him, as a member of the Church, maliciously and without probable cause, and with these dispositions judged of the case, and pro- nounced the sentence of suspension from Church privileges. The pursuer has already appealed against this deliverance and sentence of the Kirk- Session, and has obtained a reversal and acquittal from the Supreme Church Court, the General Assembly. It is to be observed that no case is stated of subornation of testimony by the defenders, of preparation of false evidence by forgery or otherwise, of fabrication of documents, or alteration or vitiation of the same — ^nothing amounting to a crime, or even to any overt act, in violation of their duty. I notice such cases, and many other extreme cases fiiight be figured, in which other elements might occur, in which the question might not be, as here, "With what motives did the defenders discharge their duty ? I desire to give no opinion except on the general case, very fully and fairly raised on the record before us — which seemed to all of us, I believe, to raise a general point, depending on no specialties averred by the pursuer, or appealing on the face of the proceedings. I repeat, that on that general case alone I give my opinion— reserving for consideration any special case ; and I can easily conceive many which might arise regarding DECIDED IN THE COURT OF SESSION. 9 the conduct of a Churcli Court, even wlien in the exercise of its proper province of discipline. I am of opinion, that on the facts of this case, as ahove explained, an action of damages cannot be entertained, notwithstanding the averment of malice and want of probable cause, against the Kirk-Session. I have, I admit, great jealousy and distrust of Church discipline exercised judicially, and by the infliction of Church censures, or suspen- sion of Church privileges — great jealousy of the spirit, temper, and feelings with which it is liable to be exercised — and the utmost distrust not only of the fitness of the fallible ofiice-bearers of every church who attempt to exercise it, but of the expediency and good for the interests of the Church, except in very flagrant cases, of that mode of enforcing the authority and principles of religion, or of preserving the purity of the Church as a body, the obedience to the faith of its members, and the influence of the Courts of the Church. But this is not the place to discuss the great questions which occupied the mind and talents of Calvin and Knox, or the wisdom of the powers actually entrusted to the Church Courts of this countiyj by the laws and constitution of the Church, although greatly modified and softened in practice. I distrust the mind of man when invested with the high prerogative, so flattering to pride, so apt to magnify trifles into acts of irreverence, sinfulness, and irreHgion, for the duty of judging of the religious conduct and motives of others — by whomsoever that prerogative shall be exer- cised, and I cannot forget, that under the discipline of one of the best Christians and greatest theologians the Church ever knew — that of the great Calvin — 414 public trials took place before the Consistory in two years (1658 and 1559), ending not only in Church censures, but many in civil punishments, for matters, a great number of which there is not a pious Christian of the present day would not deem wholly unfit to be noticed in any other way than by private rebuke. I think it right to say this, that I may not be suspected of dealing with the very serious question, raised by the defenders, in any other spirit than that of a lawyer. But, on the other hand, I am very clearly of opinion, that on the facts as above stated, an action for damages against the Church judicatory, acting in a proper case of discipline, will not lie, although malice and want of probable cause shall be averred. We must attend to what is involved in the subjection to church discipline, undertaken and submitted to by every one who joins any church in which church discipline is to be exercised by the office-bearers or courts whom the church intrusts with such authority, and to whom they hold that such authority over the members of the church is com- 10 LEADING ECCLESIASTICAL CASES mitted by our Lord, in his commission to tlie ministers, and presbyters, and office-bearers of the ministry of the gospel. There can be no doubt that, according to the "Word of God, as interpreted and adopted by the Church of Scotland, that authority is bestowed, and the members of the Church subjected to the discipline flowing from that authority. "We are not now discussing the right principles of church govern- ment, according to the Scriptures, neither are we to consider the extent of the authority over the members of a dissenting establishment flowing from the principles sanctioned among themselves, and submitted to by the act of joining the same. I avoid the question as to whether similar protection extends to their church courts, solely because that is not the case before us — ^but not from any doubt now entertained by me that they may claim the same. I take simply the fact that the Church of Scotland, as established by law, has adopted; and that statute has declared and proclaimed, that according to the "Word of God, as inter- preted by the Church of Scotland, its Church Courts are invested with the right and duty of discipline over its members ; and that such right flows from the divine institution of the Christian ministry, and of the Presbyteries which the Church of Scotland holds to be, although not of Divine prescription, as the only form of church government, but as founded on and as agreeable to the "Word of God. No one need be, unless he chooses, a member of the Church of Scot- land, or of any particular sect, in the constitution of which there are things to which he objects. If he joins the same — and, if I understand the statements here, the pursuer did so deliberately, after being employed in the teaching of youth, and therefore of mature years — then he must take its constitution as he finds it. He must be subjected to the authority and discipline of the Church, and he must be content to acknowledge the authority under which that discipline is exercised to be of divine institution, and bestowed by the great Head of the Church on the office-bearers of the church over him — if such shall be the view taken of his subjection to church discipline by the laws of the Church of Scotland. No doubt all this is a very grave and weighty question — one of the most serious with which legislation or the arrangements of voluntary churches have to deal with. Ko doubt such views of the origin and character of the authority of the church over its members, whether an established or dissenting church, entrust much to the weakness and frailties of human nature. But if the church which the individual has joined, being the Church of Scotland, has proclaimed and announced its views of Scripture on this subject, and placed its members under the discipline of the church by reason and in respect of the authority bestowed DECIDED IN THE COUET OF SESSION. 11 on the church acting through its office-bearers by Divine ordination and appointment ; then, according to that very theocracy, so established, the member of the church must acknowledge and submit to the authority under which the discipline is exercised over him. In an establishment, he may have this advantage, that the grounds on which discipline can be exercised over him may be defined by, or must be consistent with law ; and, whether some think this interferes with the spiritual liberty of the church, at least in this question it removes one great source of objection to the plea contended for by the defenders, and affords the members of the Established Church a protection which it may be — I only say it may be — ^the constitutions of voluntary churches may not have given as clearly as they have established the subjection of their members to Ecclesiastical discipline. Now I am not about to state theoretical views as the result of a theological inquiry as to the nature of the authority of a Christian church and its office-bearers over its members. The inquiry here is simply. What is the source, foundation, and character asserted by the law of the Church of Scotland for the authority of the Courts of that church over its members, and the extent of their duties and dominion, the exercise of such discipline, and of the character and kind of submission to that discipline, which the view taken by the church laws of its origin and high authority necessarily fixes down on those who have subjected them- selves to the jurisdiction of the church ? We have to deal only with a party who has deliberately, by choice we must presume, and still more by the acceptance of an office, but still voluntarily, subjected himseK to the discipline of the Church of Scot- land, whatever that may be. Clear it is to my mind that he can have no claim for reparation of alleged wrong, said to be committed in the exercise of that discipline, if that claim is utterly irreconcilable with the character of the authority over him which he has acknowledged, and with his subjection to that authority. It wUl be of no avail to him to state as a general plea, " I aver I have been greatly injured : Your defence wUl arm the Church Court with powers which may exterminate and crush individuals — ruin character — and destroy peace of mind : It is tyranny over the mind, and over the character, not safe to enforce ; and there is no form of it more hideous, more oppressive, more appalling, than that exercised under the power of Church discipline." It may be so. Viewing such discipline as a likely source of abuse in the hands of man there may be some truth in the dogma. But in this case it is only a dogma, if the Church of Scotland, as by law established. 12 LEADING ECCLESIASTICAL CASES has settled the character of the authority which it exercises on discipline, and the nature of the subordination of its members to their office-bearers who exercise such authority. Now, then, what is the character in respect of which the office-bearers of the Church of Scotland exercise jurisdiction in proper matters of discipline falling within their competency, to the extent to which law has admitted their functions and jurisdiction, and what is the nature of the subjection which the members of the Church have acknowledged they owe to that authority ? The subjection is of a nature peculiar — exclusive — distinct from all others, and that in respect of the source from which the authority is derived. In the consideration of this matter I go no further than the Act 1690, establishing the Church in Scotland, and containing, as a statutory enact- ment, the Confession of Faith. That this statute may have been intended to apply to all the subjects may be true, from the hope that thereafter dissent could not exist. But at least its enactments are binding on all the members of the Church, and part of the statute is even broader. Its object, is declared to be "the government of Christ's Church within this nation, agreeable to the Word of God, and most conducive to the advancement of true piety and godliness." Then the statute "ratifies and establishes the Confession of Faith subjoined, as the public and avowed Confession of this Church." Further, it " ratifies, establishes, and confirms the Presbyterian Church government and discipline," — that is to say, it revives the Act 1592, and describes the judicatories of the Church, EIrk-Sessions, and so forth. By that statute, 1592, the special jurisdiction of particular Sessions as to maintaining of discipline and diligent inquiry, " of naughty and ungodly persons," is very particularly set forth. Then the Confession of Faith, the law of the Church by statute, treats separately, and with great discrimination, doctrinal or spiritual matters, and ecclesiastical matters. As to doctrinal matters, it distinctly subjects all false doctrines to the censures of the Church. And, in con- sidering the question now before us, we must remember, ihat if an action will lie in a case of discipline such as the present, it must equally lie in a case where the Church Courts, acting within their competency as to the proper doctrines of the Established Church— adding nothing thereto as requirements from its members — have judged of heresy, and suspended or deprived a minister in respect of false doctrines ; a notion utterly repugnant, surely, to any conception which can be taken of the authority of the Church Courts in the Church of Scotland, as developed in the "Westminster Confession of Faith. They may be limited in their powers as to what shall be the doctrines of the Church ; but I am treatinf at present of an inquiry into their motives, when the matters are within DECIDED IN THE COURT OF SESSION. 13 their competency, and when they are dealing -with the recognised doctrines of the Church. The Confession then, ia chapter 30, comes to the title of Church Censures — the title is short, and I shall read it all. [Eeads.] Now, the first section announces a great truth of the Church — liable to misapprehension, doubtless, but a doctrine which is the foundation of the whole authority and government of the Church over its members — that is, that in the matter of discipline, whether as to doctrine or evil practices, or non-observance of Church ordinances, the Church is exer- cising a government through its Church o£fi.cers, appointed by the Lord Jesus, disttact from the civil magistrate. Whatever questions have been raised as to the wider effect of this declaration, to which I need not now advert, this is undeniable, that in regard to discipline, the authority of the Church, as a distinct and sepa- rate government, is so derived from that source. To that declaration, as the foundation of the exercise of Church censure over the members of the Church, I thiuk courts of law must give full effect, as much as to any other statutory enactment. It is not our place to consider the truth of this declaration ; if it were, I should be prepared to defend it. Neither are we to consider whether it will arm men with alarming power, capable of producing great mischief. The statute has given the remedy in the courts which it trusted — in the appeals competent to the superior Church Courts. But the matter of discipline it has vested in the Church officers. I need not pursue this point farther, for, in the view I take of the case, the Church, in exercising discipline on its members, is thus exer- cising that separate government for the Church, the authority and source of which is declared to be divine appointment. Erom this, I think it necessarily follows that in matters clearly within the cognisance of Church officers or Courts, as subject of Church censures (I keep to the exact case before us, and the law within the statute), when the Church judicatory is thus exercising the government so entrusted to it, its judicatories and officers are not amenable to the civil courts of the country in damages for alleged wrong. They have been trusted as a separate government. The declaration of the authority under which they act assumes that it must he separately administered — free from control — free from subjection or subordination to civil tribunals. The inquiry into their motives — which is the very essence of the pursuer's case — by other civil courts — it may be by men not even of the . Church — is absolutely repugnant to the freedom which must belong to a Church ia matters of discipHne. To any party alleging wrong by such courts, the answer, then, is plain if these courts were acting wholly within the matter committed to them, they are distinct and supreme— and the authority under which ] 4 LEADING ECCLESIASTICAL CASES they sit, excludes any inquiry into their motives by civil courts. But hardship, in truth, there is not, whatever the party may feel, for he has chosen to subject himself, in all matters which can come within, the discipline of the Church, to the Church of Scotland as established by law ; and the authority of that Church in cases falling within discipline, has been announced and fixed. The view that may be taken of this matter by independent religious bodies, unless their constitution is very express, may go much further ; and it may be that their Church Courts may have, as against their own ministers, the sole right to decide what is competent matter for Church discipline and ecclesiastical government. And such bodies may consider it an objection to the purity and independence of the Established Church that it does not possess such power uncontrolled. But to the members of the Establishment there is, on the other hand, the benefit of the pro- tection which the establishment of a Church by statute implies — viz., that the Church Courts must act within the limits assigned to them. Now the opinion I give applies solely to a case in which, as here, it is distinctly admitted, or plainly appears, that the Church censures were enforced in respect of matters clearly falling within the discipline compe- tent to the Church, and of which the Church Court had entire cognisance. This view will not surround these Courts with protection if they exceed their jurisdiction — e.g., to take a case I stated many years ago : — If a Kirk-Session, on grounds of discipline within their cognisance, refuse a member of the Church admission to the Lord's Table — not rejecting his application without inquiry, but judging of his case, and on such grounds refusing to admit him — they are not subject to be compelled to receive him by the Civil Courts, nor can he call on the Civil Courts to inquire into their motives. But if they refuse to receive him, because he will not subscribe a covenant to extirpate Episcopacy in England, or to expel the Bishops from the House of Lords, or to assert the entire independence of the Established Church from the jurisdiction of the Civil Courts as to the extent of its forms, or on any ground palpably not within the subject of the separate government of the Church by its officers which the statute acknowledges, then they have not the same complete protection; so, also, if Church Courts refuse to perform a duty imposed on them by statutes, as a part of the ecclesiastical constitution of the Church. I am not afraid, then, of any hazardous results from the protection which I think the Church Courts possess, from any inquiry into their motives when exercising, in the matters falling within Church discipline, that separate government recognised in the Church as of divine appoint- ment ; for the limit of their protection is, I think, clearly defined and is DECIDED IN THE COURT OF SESSION. 15 sufficient, as it has hitherto proved to be, to guard against any great abuse. And I see no other remedy, if there has been abuse, compatible ■with the declaration of the Confession of Faith, but an appeal to the higher judicatories ; and of that appeal this pursuer had the benefit. The authorities quoted do distinctly recognise the principle I have now stated. But there are many reasons why it should be so explained as to prevent misconception ; and, above aU, prevent an undue notion of the extent of the protection which that principle gives. I am therefore of opinion that an action will not lie, founded on the deliverance and sentence of the Kirk-Session in a proper matter of discipline. I have had greater difficulty as to the petition subsequently presented by the Kirk-Session to the General Assembly. It is necessary, however, to remark, that this is not an action to have it found that the defenders must give effect to the judgment of the superior Ecclesiastical Courts, or are liable in damages, because they have refused to do so. The issue proposed to be taken is solely for reparation, in respect of the defamation said to be contained in a petition for advice presented to the Assembly by the Kirk-Session, and which defamation consists solely in the recital of the proceedings before the Kirk-Session. Now whether the conduct of the Kirk-Session is here to be commended or not, and although in this matter the Kirk-Session did not act judicially, yet, on the other hand, they do as a Church judicatory, being placed, as they say, in a situation of painful responsibility by the mistake committed in point of form in regard to their appeal, apply to the General Assembly of the Church for advice as to a matter of discipline. In these circumstances I am of opinion that they are protected, and that their motives cannot be in- quired into. On the other hand, I am very far from thinking that such a petition wiU cover every statement which might be contained in it. Quite the reverse. But this petition is before us — we see its character and its contents — and I give my opinion with reference to it alone. LoED Medwtn. — I address myseK, in the first place, to the import- ant question involved in the first issue. And, in so nice a discussion, I am anxious to be guided by the wisdom of our predecessors. In the action for defamation and damages, brought in this Court by two parishioners of Abernethy, against Mr. Grant the minister, 25th July 1781, for refusing to the pursuers tokens for admission to the sacrament, the Lord Ordinary, although he expressed his disapprobation of the conduct of the defender, which arose out of a proceeding before himself as a Judge of Justiciary, found that, " as by that refusal he was 16 LEADING ECCLESIASTICAL CASES acting in Ms capacity of minister of the parish of Abemethy, he is not amenable to the civil courts of law," and he was assoilzied, but ex- penses were refused to him. This interlocutor was adhered to by the Court. But the pursuers having amended their libel, and offered to prove that the defender had said to many persons that the pursuers had perjured themselves before the Justiciary Court, the Court held that these facts, which were not within the sphere of Mr. Grant's ecclesiastical character, were injurious and actionable, and allowed a proof. This was only repeating the judgment of Lord HaUes in Robertson against Preston, 11th August 1780, unanimously adhered to by the Court, "refusing a proof of what was said or done in the Kirk-Session, or in their collective capacity, but allowing a proof of what they did as individuals." The same distinction was observed in the case of Kidd against Paterson, 12th February 1808, in Borthwick on Libel, p. 391. In every country in Christendom there axe Church Courts as well as Civil Courts ; while the jurisdiction of the latter embraces all acts done by one member of the State to another, and to redress all vn-ongs done and suffered in that character : within the cognisance of Church Courts are all matters of church discipline founded on the conduct of the members, leading to many delicate inquiries into character, and which it is the duty of the office-bearers in the church to inquire into according to forms prescribed. In discharge of this important duty, and while acting in their ecclesiastical character, the CivU Court can have no right to interfere with or control them. The two jurisdictions, the civil and ecclesiastical, are as separate and distinct as the subject matters about which they adjudicate, and the objects with which they act. The boundary between the two is not always very easy to define ; but when- ever the matter clearly falls within the proper province of the Church Court, its proceedings cannot be questioned in the Civil Court. The Scottish Confession of Faith is declara,tory of this distinction, and of the independence of the Church Courts of the Established Church of Scot- land : but the rule is not coniined to these. I ascribe the right of inde- pendent church government to a much higher source, and give it a much wider application : accordingly, our Courts respect it in the case also of all tolerated sects — those other religious bodies where the members sub- mit themselves voluntarily to the jurisdiction of the office-bearers of their church, whatever it may be, so that no member can come to the civil court with a claim of damages in a proper ecclesiastical question, implying a review of the proceedings of the Church Court on its merits, on an allegation of a wrong done by that Court. This was found in the case of Auchincloss against Black, 6th March, 1793, reported by Borthwick, p. 405, where Lord Justice-Clerk Braxfield pronounced an interlocutor. DECIDED IN THE COUET OF SESSION. 17 findmg it "incompetent to this Court to review tlie proceedings of associate congregations, commonly called Burghers, •when sentences are pronounced by them in their ecclesiastical character." A similar judg- ment was given in another case. Grieve against Smith, 12th February 1808, as to the sect called the Berseans. It wiU not make it competent to apply to the Civil Court, by simply libelling that the proceeding was done maliciously and without probable cause. This averment is easily made ; and more especially it wUl not avail, if no specific statement is made as to the cause and origin of the malice, nor any instances given of the indulgence of this improper feeling. "When a general assertion of this kind is made, ought the Civil Court to sustain the process, in which it has originally no jurisdiction, to set aside the sentence of the Church Court, if given in the discharge of their duty and formally conducted, on this vague allegation, and put the defender to the expense of making up a record, adjusting issues, and suffering the expense of a Jury trial, when, after all, it may be shown to be all in the proper and necessary discharge of the duty of a Church Court 1 In the case of Grant, the report bears that it was averred that he had acted " from motives of pique and resentment ; " but this did not make bim liable in damages in this Court, the Court holding that they were precluded from inquiring into his proceedings in his character of a minister of the church — or rather, perhaps, as a member of a Church Court acting vdthin the line of their duty — in a case of church discipline. But a Church Court may err, and pronounce an unjust sentence. Is there no redress ? There is. But then it is not, where the proceedings have been competent and regular, by way of review by the Civil Court ; it is by appeal to a higher Church Court. There may be, and generally is, a subordination of one Church Court to another, as in the ecclesiastical constitution of Scotland ; and if any ecclesiastical act or proceeding of a Church Court against a party subject to its jurisdiction is objected to, it may be carried before the higher Court for review, and redress will be obtained if the party has been wronged. The Civil Court could not give redress, it could not remove the sentence, even although it were to enter- tain the case, as it may be thought ad civilem effectum. This, I see, is admitted in the very ingenious petition reclaiming against the judgment of the Lord Ordinary in th« case of Auchincloss,^ where it is said, " the sentence of deposition and excommunication could not be brought under the review of the Civil Court ; " but this distinction is attempted, " if any man can show he had suffered injustice, not as a dissenter (that is, as a member of the religious body), but as a subject, he is entitled to claim i Borthwick, p. 407. C 18 LEADING ECCLESIASTICAL CASES reparation."- But such a view could not avail him, as it was as a member of the church, and not simply in his character as a member of the State, nor in support of any civil right, that the proceedings complained of took place ; and therefore that view was not listened to by the Court. The Civil Court could have no right to inquire into the motives and grounds of the judicial sentence which the Church Court had pronounced. When a Kirk-Session, then, in a matter within their jurisdiction, is complained of as having erred in judgment, ,the proper mode of redress must be to appeal to the Presbytery, who alone have jurisdiction to review the sentence, and to afi&rm or alter it. The Presbytery would have full power to inquire into the merits of the CEise, as well as the conduct of the members of the Kirk-Session in it ; and there is no doubt, that if any of the members had acted a dishonest part, full justice would be done to redress the wrong and to vindicate the character of the party injured, and the culpable party might, under the discipline of the church, even though a member of the Court, be compelled to acknowledge publicly, in the face of the congregation, the falsehood of the charge, more especially if he was the inventor of it. This is the appropriate remedy in a matter which, whUe it is confined to proceedings within the walls of the session- house in the Court there judicially sitting, is distinct from the jurisdiction of the civil magistrate ; and after having got the appropriate remedy from the appropriate Court, the party can have no occasion, and no right, to apply to the CivU Court for anything further. It is not to be supposed that the Church Courts will not do justice in the case, so as not to give the appellant the redress he is entitled to ; at least I know of no authority in our law which says that the CivU Court can inquire whether justice has been done in the ultimate Church Court or not ; nor that the com- plainer, over and above the remedy he has sought and obtained there, stiU more when what he asks has been refused by the Church Court, on the ground that he was not entitled to it, may still further come to the Civil Court to obtain damages in solatium from the members of the Court who have been found' to have done wrong by their judgment being altered, or stiU more when it has been affirmed. For if the Civil Court could entertain the case under a claim for damages, the complainer would be entitled to the review of the matter in dispute as much, if not more, in the latter case than the other. In the present case the sentence of the Kirk-Session, of suspension from sealing ordinances, has been reversed, and the pursuer fully restored to his privileges as a member of the church. The sentence of the Kirk- Session, and these sentences by the Courts of review, were in a proper ecclesiastical cause appropriate to the Church Courts, and certainly incompetent before the Civil Court. But the pursuer now wishes to DECIDED IN THE COURT OF SESSION. 19 superadd to this an action for defamation and damages, against the Kirk-Session, on account of the statements set forth in the minutes of the four meetings referred to in the first issue, and the heing wrongfully and maliciously deprived of church privileges. Now we must not confound this case with another class of cases which might he figured, such where, in the words of Erskine, " certain sentences or proceedings of Church Courts, in spiritual matters, draw civU effects after them. Thus, the admission, hy a Presbytery, of one to the pastoral charge of a church who has a legal capacity or qualification for it, gives the person admitted a title to the benefice, and their sentence of deprivation cuts off that right." ■* In like manner as to the admission of a schoolmaster. Hence, put the case, that not from a mere innocent error in judgment, and mistaken view of the law, but from some unworthy and improper motive, and in a case of manifest violation of duty, a presentee was kept out of his benefice, or a minister was deprived of it, I think it clear, that though the wrong done was so far redressed as to have the presentee admitted or the minister restored by the Superior Church Court, the complainer might bring a civil action for recovering the patrimonial loss, if any was incurred by the loss of stipend, through the misconduct of the Inferior Church Court acting Ulegally and in violation of their duty, more especially if it be a plain and statutory duty. Such was the case of Young against the Presbytery of Auchter- arder, 5th March 1841. But this is quite different from such a claim as the present, which is not for actual patrimonial damage by the loss of what he would otherwise have had, but is quite of a different character ; it is merely for a solatium to his feelings,-^" by all the proceedings before detailed, the feelings of the pursuer have been injured, his peace of mind has been disturbed, his character and reputation have been vilified and wronged, his professional success has been injured, and he has been subjected, in a variety of ways, to a great expense and loss." But the injury he alleges was done in the Church Courts, in proceedings appropriate to their jurisdiction ; he has obtained redress in these Courts, the appropriate redress, by having the wrongdoing Court found wrong, their sentence set aside, himself restored to Church privileges, the former charges not again to be insisted in, and has further obtained a triumph over his minister, who is ordained to baptize his child. Now, his hurt feelings should be soothed by this, and his peace of mind restored, and his character re-established. He does not allege that he was deprived of his ofiice of schoolmaster, or that he lost any part of his salary. As to damages in solatium, this is certainly not the proper reparation for a calumnious attack upon character, and is not resorted to except where no 1 Ersk. I. 5, %2i. 20 LEADING ECCLESIASTICAL CASES other remedy lies, and where an award of damages proves that the pursuer has been calumniated by the defender : But it is not the proper remedy in such a case as the present, just as little as damages to a husband in the case of the infidelity of his wife, is the proper reparation for such a wrong to him. And if for what is said to be a calumny in a judicial proceeding properly carried on before a Church Court, the sentence which is charged as calumnious is altered, I can see no ground for coming to the Civil Court, not for reparation of patrimonial loss actually incurred, but seeking damages in solatium, when the proper remedy has been obtained in the Church Courts ; and when the Civil Court has not the proper jurisdiction in the matter, nor any right of review over the proceedings, or right to inquire into them, — and more especially as the claim is against the members acting in their judicative capacity in a Court altogether distinct and independent, and not subject to the review of the Civil Court. It would be a different case if a party made a false and malicious accusation, and misled the Church Court. After getting the proceeding set aside by the superior Church Court, the injured party could no doubt claim damages from the Civil Court against the fabricator of the charge. So also, I think, he could, although the story was maliciously invented even by a member of the Kirk- Session ; so that while he would obtain redress by having the sentence reversed by the superior Church Court, he might also proceed there against the offending member of Court, who could have no protection for what he did not do as a member of Court, but as a private informer. Or, if the party preferred it, he might claim in such a case civil reparation by damages for the loss and injury sustained by this false accusation. This was so held in the case of Kidd, already noticed. But I think he could not claim both remedies against the offending member of the Church, — the one which is obtained in the Church Court, and the other in the Civil Court ; although, no doubt, ex propria motu, the Church Court might deal with him according to the discipline of the Church, this not being at the instance of the aggrieved party. Another case, almost an unsupposable one, may be put ; that a whole Kirk-Session, without any ground whatever, should convict a parishioner of some offence against the laws of the Church, and subject him to discipline ; if they confine themselves to their judicial character only in the disposal of the case, I think the injured party could not make them amenable by an action of damages before the Civil Court for what they did judiciaUy; his redress would be by an appeal to the next higher Church Court to review their proceedings, from whom he would obtain justice. But, of course, it would be different if all or any of the members mentioned the matter as to which they calumniously found DECIDED IN THE COURT OF SESSION. 21 fault with his conduct out of doors, and not in the adjudication of it in the Church Court. I, therefore, am of opinion that the first issue should be disallowed, in respect that the Kirk-Session is not amenable to the Civil Court for what was done in their judicative capacity as members of a Church Court. I am also inclined to give the same protection to the statements made in the petition to the General Assembly. It was certainly not in the form of an appeal from the sentence of the Synod, but rather an applica- tion for advice and instruction, as to how they should proceed, where the Synod had not been able to go into the merits of the case on account of an informality. This, I think, was nothing incompetent, nor, in the circumstances of the case, unreasonable ; and, in doing so, it was necessary to explain the nature of the proceedings ; and as it was a state- ment in the process temperately made, and in support of the sentence pronounced by them, a judicial step by the Court complained against, I do not think the Civil Court can interfere, so as to make them liable in civil damages for any statement made therein. Except in so far as the Civil Court has power to review the proceedings of the Kirk-Session on the merits, I do not see how they can entertain this issue. I think in this I follow the judgment of the Court in a complaint made in the same case against the minister of Abernethy, 21st December 1781, who having, during the dependence of the civU action, applied to the Presbytery to take cognisance of his reasons for refusing the tokens, and obtained their deliverance on it, this was complained of to the Court ; but the petition was refused as incompetent, although, perhaps, the comment on this case by Professor More (Notes on Stair, p. 369), that no " proper ecclesiastical proceedings of a Church Court, however irregular or improper, can be brought under review of the Court of Session," is expressed a little too strongly, I think the case of Grieve against Smith, already noticed, also affords support to this view. We should think it a very great injury if any charge of misconduct were to be announced to a congregation generally, and not merely to the judicative authority in it. But it was there held that this being one of the rules and usages of the sect of the Berseans, of which both parties were members, the Civil Court could not interfere by entertaining a process for defamation on that account ; but damages were given, in so far as the unfounded charge was made to others, and not in the congregation. I am of opinion, however, that the same protection does not apply to the publication of the minute of 30th May 1848, in the church on the 4th June 1848, nor to the next issue as to the Barty Mortification ; and I do not think that the term " maliciously " needs to be inserted in the one, nor, " in violation of their duty,'' in the other. 22 LEADING ECCLESIASTICAL CASES As to the 4tli and 5 th issues, I also think maliciously need not he inserted ; it is not, ex facie, a privileged case of defamation. With regard to the last, the same remark applies : but if it be shown, and it turns out, on proof, that, in his defence agaiast the action, the minister stated what was pertinent to the cause, then malice- must be established; and if this Cannot be shown, the defender will be entitled to a verdict in his favour on that issue. This is all that was meant when I concurred in the opinion in Dunbar agaiast Stoddart, 15th February 1849. Lord Moncebiff. — In the question. Whether it is competent to the pursuer of this action to obtain an issue, ia the terms proposed in the first issue laid before the Court, by which he is to claim damages from the defenders, as the members of the Kirk-Session of Blairgowrie, on account of certain resolutions embodied iu the minutes of the Kirk- Session, annexed in the schedule referred to — resolving into a sent- ence or sentences pronounced by the defenders, when regularly con- stituted as a Kirk-Session of the Church — it appears to me to be altogether unnecessary (and it being unnecessary, I am very well pleased to avoid it) to enter into any discussion of abstract questions con- cerning the jurisdiction of the Ecclesiastical Courts, or the limits of it, or concerning the extent of the privilege of the members of such Courts in anything which may be done or transacted in them in matters properly belonging to them, and within their competency as such Courts. I assume that no such issue could be granted without an undertaking laid on the pursuer to prove that the resolutions or sentences were pronounced maliciously, and without probable cause. But, even- with that addition, it remains a serious question whether any such issue is competent at all. The matter of the resolutions referred to is evidently of such a nature that the defenders, as a Church Court, had power to deal with it ; and, in this case, there is no necessity for considering any strong or extreme cases concerning the grounds of judgment which the Church Court may have adopted. I have had my own opinions on that subject. But the matter here being so clearly within the jurisdiction of the Kirk-Session, and it being so held, as I understand, by others, after all the judgments which have been pronounced in this Court in such questions, I cannot hesitate iu delivering my own opinion that the action and the proposed issue are incompetent, in so far as they are founded on the sentences or resolutions of the Kirk-Session regularly convened, and that no addition of malice or want of probable cause can render them competent. The case as to the other matter embraced by the first issue is not exactly the same. The issue is asked on account of a certain petition presented to the General Assembly of the Established Church, as containing state- DECIDED IN THE COURT OF SESSION. 23 ments alleged to be libellous. I have had more doubt on this part of the case, on account of such a petition not being in the regular course of eccle- siastical procedure. But even as to that, as the matter alleged to be ex- pressed in that petition was of the same character of spiritual superintend- ence, proper to the jurisdiction of the Kirk-Session, and the nature and object of the petition was to obtain the advice of the Assembly in such matter, and as any question of irregularity belonged to that Court alone, I am inclined to think that the issue ought not to be granted. It farther appears to me that no one can have any just right to insist in such an action against the members of the Kirk-Session of the Estab- lished Church, or, indeed, of any Church, of which he holds himself to be a member, when he reads the terms of the Confession of Eaith, in sections 3 and 4 of chapter 30, which he professes to receive as the Confession of his faith in this matter. Section 3. — " Church censures are necessEiry," etc. Section 4. — " For the better attainment of these ends, the officers of the Church are to proceed by admonition ; suspension from the Sacra- ment of the Lord's Supper for a season ; and by excommunication from the Church, according to the nature of the crime and demerit of the person." The pursuer has voluntarily submitted himself to the jurisdiction legally constituted for dealing with such things ; and I think that, in such a case, the privilege in the sentences pronounced, and proceedings connected with them, is absolute against the competency of such an action in the CivU Court. LoED CocKBDEN. — There are cases in which a consequence is the best of all arguments. J£ the plea of the defenders be sound, Kirk-Sessions have an absolute licence of defamation. They have nothing to do but to keep within their jurisdiction ; and then, let them abuse it as they may, they are liable to no civil responsibility. They may, with conscious false- hood, ascribe specific crimes to every parishioner who has the misfortune to incur their dislike ; or they may select a single individual, and deliber- ately doom him to destruction by libel ; — by the assertion of facts fatal to his character and peace, which they know to be groundless ; and they may persevere in this scheme of moral murder, in spite of every explana- tion, and in defiance of all decency. True, they must preserve the shelter of their jurisdiction, both as to matter and as to form ; but this it is always in their power to do. Nor are they restricted to the occasions on which, as here, their victim happens to apply to them for admission to the ordi- nances of religion. Because, in the first place, if he does not apply, this itself is an ofi'ence which subjects him to their discussion ; and, in the 24 LEADING ECCLESIASTICAL CASES second place, as guardians of the parochial morality, there is nothing im- moral, and what they may profess to think immoral, which does not come within their cognisance. "What they do, may be reviewed ecclesiastically by their ecclesiastical superiors, by whom they may be corrected, or re- buked, or deposed. But they may not ; and though they be, this is no civil reparation to the party whose reputation, tranquillity, or fortune, may have been blasted by their purposed malignity. They are safe in even inventing pretences for calumny. The defenders' principle is, that they are liable to no civil inquiry. So they may meet, provided it is all done sessionally, and deliberately create lies for the sake of libelling ; and there is no civil redress. 'Not is this fiightful system confined to the Establish- ment. The principle, if it be followed out, must apply to all our Presbyterian dissenters, in their dealings with their own adherents, and, indeed, to every religious community. So that the whole country is studded with little inquisitions ; from whose fatal but irresponsible censures no man has any safety except he, who, in reference to such a system, is in what must be considered the comfortable condition of belonging to no religious community at all ; though even he is by no means quite secure against the general censorship of the Established Session. I am aware that some of this may be applicable to abuses by ordinary Courts. But all other Courts are civiUy responsible, and there are no Judges that are created as the members of a Kirk-Session are. All other Judges and Magistrates, except the members of Town-Council, are ap- pointed by the Crown, and they are all, Town-CounciUors included, liable to civil control. It is the policy of the law to hold that the dignity and independence of Supreme Judges requires them to be placed above respon- sibility for official delinquency by action ; but they may be degraded by the Crown and Parliament. Inferior Magistrates are liable to have their errors set right by civil review, and they have, in a thousand instances, been obliged to make reparation to those they have wronged. But Kirk- Sessions appoint their own members. No civil power can either create or remove them. And, however severely their ecclesiastical superiors may condemn them, these superiors can never make them give one six- pence towards the reparation of their wrongs. This is the very last body in the State on whom an unchecked licence of civil injury can be safely conferred. Yet, though the pursuer offers to prove that the defenders have injured him, by statements" made, not as in Grant's case, from mere "pique and re- sentment," and not only falsely and maliciously, but without any probable cause, that is, by a mere prostitution of their office : the plea is, that they are civilly safe, because they were under the pretence of official jurisdiction. DECIDED IN THE COUET OF SESSION. 25 I cannot find law for this, and I am not ashamed to confess that I have not courage to face it. It is enacted in no statute. It is laid down in no institutional writer. It stands decided in no judgment where malice and want of probable cause is alleged. It is merely said to flow from a general principle. And this principle, as I understand it, is that Courts or Judges, acting within their jurisdiction, must be protected ; and, at any rate, that in Scotland the ecclesiastical power is little liable to be controlled by the civU. I conceive this doctrine to have been utterly put down, in the case of ordinary Magistrates, by Eobertson v. Barclay. A Justice of the Peace was there found liable to an action of damages for words of unquestion- able relevancy and pertinency spoken judicially, because they were said to have been spoken maliciously. This principle was sanctioned both here and in the House of Lords ; and only with this additional protec- tion, that it was necessary to establish the malice by other evidence than that supplied by the mere language. And that Jjistice was accordingly tried three times, and twice convicted, and was saved at last by a final acquittal, on the failure of the proof. There was no averment of want of probable cause. And no case was ever more anxiously or repeatedly considered. Since this was the principle applied both here, and by Lord Eldon to a Justice, I do not see how it could be withheld from a Sheriff, or any other inferior magistrate. Indeed, it often has been applied to them all, for redress of injuries by illegal diligence. It is generally said that dihgence stands in a peculiar position. So it does in many respects, but in none quoad hoc. A magistrate in granting warrants is acting judicially ; and injury by a warrant is not necessarily worse than ruin by defamation. If a Sheriff be civiUy responsible for injury sustained by a warrant judicially but illegally granted, I cannot understand how he is not fully as responsible for injury sustained by his converting his judicial position into a pretence for malicious hbeUing. But it is more important to observe what has been done in Church cases. I have heard no answer to the case of Maclean — where an action of damages was found to lie against a clergyman for libellous words, uttered in his Presbytery, on a subject relevant for Presbyterian observa- tion, but uttered maliciously. The case of M'Dougal v. Campbell (7th March 1828), was exactly on the present question. The pursuer had appUed to his Eark-Session for a certificate. It was admitted that this application made his character a proper subject of sessional discussion. The defender, who was one of the elders, stated that he was a thief. The pursuer raised an action of damages, on the ground that this assertion was not only false but malicious. The very defence now maintained was set up, and was discussed in cases, and the unanimous judgment was, that 26 LEADING ECCLESIASTICAL CASES the Kirk-Session had no protection against a charge of malice. " It is no defence," says Lord Glenlee, " that he is a memher of a Church Court, as that cannot justify him." " If it he true," says Lord Pitmilly, "that this man expressed previous ill will, and if, in pursuance of this, he made his character of an elder a cloak to make this accusation falsely, I should hesitate very much to say that we could not entertain the action." "No douht," says Lord Alloway, " this Court has no right to interfere with ecclesiastical affairs. No such thing, however, is attempted here ; hut the question is merely, whether, the party having made use of his character as a cloak to defame, this Court can award damages 1 I think this summons is sufficiently relevant, hut I have no ohjections to see a specific condescendence." And the Lord Justice-Clerk was of the same opinion. — And observe the case of Auohincloss, in 1793, reported by Baron Hume (p. 595). It seems to me to he a fac-simile of the present question. A Burgher minister was de- posed for immorality by his Presbytery, whose sentence was confirmed by the Synod. Though the sentence proceeded chiefly on what appeared to be his own confession, the deposed raised an action of damages against eight members of the Presbytery, on the statement that they had engaged in a conspiracy to ruin him, and had wrung the apparent confession from him by threats and false hopes, when he was in weak health and spirits. The very defence now set up must have been insisted upon ; because the Lord Ordinary (Braxfield) sustained it, and assoilzied, " In respect he does not consider it competent for this Court to review the proceedings of as- sociate congregations, commonly called Burghers, when sentences are pro- nounced by them in their ecclesiastical character : Therefore, sustains the defences,'' etc. But the Court rejected this principle, or rather its application. " At advising," says Baron Hume, " the Judges were gene- rally of opinion that the defenders were answerable, if it could be shown that, though made in a judicial form, the charge against the pursuer was truly a calumny, and was made and prosecuted in a malicious spirit. But all agreed that the pursuer had not condescended relevantly," etc. I cannot reconcile the plea of the defenders with these authorities. There is not said to have been any conspiracy here ; but conspiracy is not worse than wilful falsehood, malice, and the total absence of probable cause ; and even the conspiracy was practised there judicially ; which single fact is said to cover up, everything from the cognisance of this Court. Nor can I forget the conflicts between the Civil and Ecclesiastical Courts a few years ago. Some of our number thought that this Court had no legal control over the ecclesiastical tribunals. But they were found wrong, and the general legal result was ascertained to be, that DECIDED IN THE COUET OF SESSION. 27 wherever patrimonial interest was involved, though, even incidentally, there the Civil Couit could interfere ; and could interfere, even by con- trolling the ecclesiastical proceeding. The independence of the ecclesi- astical jurisdictions was found to be no bar to the patrimonial correction of the civil tribunals. This principle is the key, and the only key to the whole of these memorable decisions. I was one of those who resisted them before they were pronounced. But this does not make it the less my duty to give fuU effect to the principle then so solemnly established. Now observe how this principle was applied in the action of damages raised by th.6 presentee against the Presbytery of Dunkeld. That action was rested on the fact that the Presbytery had improperly refused to take the pursuer upon trial. The answer was, that this was done judici- ally j done as an oflSoial act by the Presbytery as such ; entitled and bound to exercise its independent judicial discretion. But as the refusal was held by the civil Court to have been illegal, the claim for damages was submitted to a Jury on an issue, which merely asked whether the Presbytery had " wrongfully refused to take trial of the pursuer's qualifi- cations." Now, the refusal was wrongful, solely because, in the opinion of the civU Court, it was illegal. And is it not illegal in a Kirk-Session to injure a party by making its office a mere cover for malicious libel? The circumstance that the presentee had perhaps lost an office by the Ulegal act, whereas, here, the pursuer has only sustained injury in his feelings and reputation, proceeds on a mistake. The summons sets forth that besides injury to his feelings the pursuer has sustained patrimonial loss. But truly this circumstance is perfectly immaterial. There is in- jury in both cases, and nothing depends on its nature. However, it so happens that after aU the presentee's actual loss had been paid for, he claimed and got damages separately for his injured feelings. The verdict first gave Mm several hundred pounds for the supposed loss of stipend, and then ^61500 as solatium and damages. The issue demanded, and the verdict gave, something for mere solatium. There was no impu- tation there of malice. It was a mere adherence to an illegal view of their duty that constituted the wrong. Yet damages were given. How, consistently with that proceeding, the corresponding part of the present action can be found irrelevant, passes my comprehension. I have not overlooked the 30th chapter of the Confession of Faith. I there see (what I never doubted), " that church censures are necessary for the reclaiming.and gaining of offending brethren," etc., and that " for the better attainment of these ends, the officers are to proceed by admoni- tions, suspension from the Sacrament of the Lord's Supper for a season, and by excommunication from the Church, according to the nature of the crime, and the demerit of the person." But I see nothing that entitles 28 LEADING ECCLESIASTICAL CASES the Churoli officers to proceed by wilful defamation, nor according to their own malice. I further see it announced, that the " Lord Jesus, as King and Head of His Church, hath thereto appointed a government in the hand of church officers, distinct from the civil magistrate." And I re- member that it was on this chapter, and chiefly on these words, that the incompetency of the Civil Court to interfere with the ecclesiastical juris- dictions was maintained in the cases I have referred to. But this applica- tion of the Confession failed ; and the civil power not only checked the ecclesiastical, but made the church officers repair injury done by their judicial wrongs, even where the wrong consisted in mere illegality. It •humbly appears to me that your Lordships' opinions amount to a direct reversal of the principle of these judgments. I am aware that this is not what your Lordships mean ; but I suspect that-it is the only construction that lawyers can put upon what you are doing. The Court disallowed the first issue. The other issues against the Kirk-Session, as finally adjusted, were as follows : — " It being admitted that the pursuer is assistant schoolmaster of the parish of Blairgowrie, and that the defenders are minister and elders and members of the Kirk-Session of the said parish ; and that at a meeting of said Kirk-Session, held on or about the 30th May 1848, the minute set forth in the schedule hereunto annexed, was recorded by the defenders in the books of the said Kirk-Session, and that, with the sanction, and by authority of the Kirk-Session, the Eev. Archibald Ochiltree Greig, defender, did read and publish the said minute from the pulpit of the parish church on Sunday, the 4th day of June 1848, to and in the hearing of the congrega,tion then and there assembled for public worship : " 1. Whether the said minute, or any part thereof, so published, is of and concerning the pursuer, and does falsely and calumniously repre- sent that, although the decision of the Church Courts had been given in favour of the pursuer, yet nevertheless he was guilty of the charges the Kirk-Session had preferred against him ; that the pursuer's restoration to the enjoyment of sealing ordinances would be injurious to the dis- cipline of the Church, and to the promotion of true religion ; that the pursuer was an evil doer; and that he was not a person who walked in the way of truth and holiness, but, on the contrary, was one who deviated from the right path ; and whether the said minute was pub- lished as aforesaid by the defenders, in violation of their duty, and to the loss, injury, and damage of the pursuer 3 " " It being admitted that a fund, known as the Barty Mortification, exists in Blairgowrie, Eattray, Bendochy, and Kinloch, for the education in the parish school of each of these parishes of a certain number of poor children, and that this fund is administered by a local board at Blairgowrie, under the Guildry Incorporation of Perth, which is the body DECIDED IN THE COUET OF SESSION. 29 invested with the general control and management, and that the selec- tion of the children who are to participate in the benefits of this fund within the parish of Blairgowrie, is entrusted to the defenders as the Kirk-Session of the parish : " 2. Whether the defenders, on or about the 14th day of December 1847, drew up, and recorded in their minute-book, the minute set forth in the schedule hereunto annexed, and sent an extract or copy thereof to the local board of said Mortification, or to W. S. Soutar, their clerk, for their information ; and on or about the 1st and 3d days of February 1848, drew up and recorded other two minutes, set forth in the schedule hereunto annexed, and sent extracts or copies thereof to the Guildry Incorporation of Perth, as trustees of the said Mortification, or to Thomas, their clerk, for their information, or to the said local board, or their said clerk, for their information ; and whether the defenders in said minute, or one or more of them, represented that the pursuer was unfit for, and neglected, the duties incumbent on him as teacher of the parish school of Blairgowrie ; and whether the said minutes were false and calumnious, and were wrongfully published as aforesaid, by the de- fenders, to the loss, injury, and damage of the pursuer V Certain issues directed against Mr. Greig, for acts done by him in an individual capacity, were also approved of; but the Court were of opinion that they should not be mixed up with those referring to the proceedings of the Kirk-Session, and directed that the cases should be tried separately. Geokge Monko, S.S.C. — Clason & Clakk, W.S. — Agents. July 5, 1851. Dr. John Lockhaet, Suspender. — Inglis — Logan. The Pkesbyteky of Deer, Eespondents. — P^jier — A. B. Clark First Division. — Lord Colonsay. Bill-Chamber. Church — Jurisdiction. — A minister who had been deposed by the General Assembly on the ground of immoral conduct, presented a note of suspension against the sentence being carried into effect, on the grounds that the libel on which the sentence proceeded was defective in the instance, that evidence had been improperly rejected, and that the procedure before the Presbytery had been generally irregular and oppressive. The Court — 'holding that the offences commited by the suspender were proper for the cognisance of the Church Courts, and that such being the case, the Civil Court had no right either to control the Church Courts in their procedure or to review their sentence on its merits — refused the^note. In April 1850, the Eev. John Camming, minister of Fraserburgh, reported to the Presbytery of Deer the circulation of a fama clamosa against Dr. John Lockhart, his assistant and successor, that he had 30 LEADING ECCLESIASTICAL CASES been guilty of drunkenness, and of soliciting and assaulting several females for libidinous purposes, and requested the Presbytery to investi- gate the fama. At the next meeting of Presbytfery Mr. Gumming appeared with his agent, and gave in a distinct list of charges of the nature above stated. The Presbytery agreed to proceed against Dr. Lockhart by libel, at their instance as a Presbytery, and remitted to a committee to draw up the libel ; and at an adjourned diet they approved of a libel proceeding at the instance of " the Presbytery of Deer." Dr. Lockhart appealed against the judgment of the Presbytery find- ing the libel relevant, on the grounds, 'ist, That the Presbytery not being a corporate body, had no persona standi in judicio, and the instance was therefore defective. 2d, The charges having been brought forward by Mr. Gumming, the libel and subsequent proceedings should have been in his name. 3d, The Presbytery had not proceeded by an inquiry into the existence of the alleged fama, but on the complaint and investigation of a private party ; and it was therefore irregular, oppressive, and ultra vires of the Presbytery to libel at their own instance, thus lending the name, instance, and influence of the judges to the private prosecutor. The Presbytery having determined to proceed upon the libel. Dr. Lockhart gave in defences, in which he objected to the relevancy of several of the specific charges of the libel, and also to several of the witnesses mentioned in the list appended thereto, on the grounds of enmity, partial counsel, and bad character. These objections were all overruled by the Presbytery, and Dr. Lockhart appealed to the General Assembly of 1850. The General Assembly repelled the objections to the instance, but sustained some of the objections to the relevancy of the specific charges in the libel, amended these charges, and ordained the Presbytery to proceed to probation thereof. The Presbytery resolved to proceed to probation of the libel as amended. Dr. Lockhart craved leave to give in amended defences to the amended libel. This motion was refused, and Dr. Lockhart averred that the Presbytery refused to minute it, and he was thus prevented from appealing against it to the superior Church Courts. The Presbytery then proceeded to take proof. Dr. Lockhart stated the objection of malice against a witness for the prosecution, and pro- ceeded to examine her in initialibus. A question proposed by him was disallowed by the Presbytery, on the ground that nothing to warrant it was stated on record. Against this deliverance Dr. Lockhart pro- tested, and appealed to the Synod. Another witness who had been examined for the prosecution was again called for the defence, and was asked to produce letters which she had previously sworn were not in her possession. The Presbytery refused to allow the question, and Dr. Lockhart appealed. A third witness adduced by Dr. Lockhart was rejected on the ground that letters admitted to be in his handwriting had been recovered, showing agency and partial counsel in favour of Dr. Lock- hart. Dr. Lockhart again appealed. Dr. Lockhart also charged the Presbytery with having suppressed DECIDED IN THE COURT OF SESSION. 31 a part of the res gestce at several of their diets, and with having refused him a commission to examine absent witnesses. The various appeals taken by Dr. Lockhart were dismissed first by the Synod and afterwards by the General Assembly; and on 28th May 1 85 1 the General Assembly found the greater part of the charges proven, and deposed Dr. Lockhart from the office of the ministry. This was a note of suspension praying the Court to interdict the Presbytery of Deer and the General Assembly from carrying the sentence of deposition into effect. The grounds of suspension were the alleged irregularities in the proceedings of the Presbytery, which have been already detailed. Appearance was entered in the Bill-Chamber for the Presbytery, who denied the competency of the Court to entertain the question, as the proceedings feU entirely within the jurisdiction of the Church Courts. The Lord Ordinary refused the note, and found the complainer liable iu expenses.^ The complainer reclaimed, and pleaded ; — He did not ask review of the sentence of the Church Courts in a purely ecclesiastical matter. What he maintained was, that they had violated jthe ordinary forms of procedure, the observance of which was essential to justice, and a violation of which the Court were entitled and bound to redress." The Court did not call on the counsel for the respondents. 1 " IToTB. — The sentence complained of, and the effect of which is sought to be prevented or interrupted by suspension and interdict, is a sentence of deprivation pronounced by the General Assembly of the Church of Scotland on one of the minis- ters of that Church, whose misconduct warranting such sentence, had been estab- lished to the satisfaction of that supreme Church Court. " The chief grounds on which the Civil Court is now asked to interfere are, that the original Church Court, the Presbytery, acted unjustly and arbitrarily, especially in the rejection and admission of evidence, and in refusing to aUow certain things to be put upon record ; and that the superior Church Courts, the Synod, and ultimately the General Assembly, before whom some, but only some, of the proceedings of the Presbytery now complained of were brought by appeals, dismissed those appeals. There can be no doubt that the case itself was one within the peculiar province and jurisdiction of the Church Courts, and that all the matters, specifically stated in the note, which form the subject of complaint, were matters which the Church Courts were entitled to deal with in the course of the investigation, according to the best of their judgment. It has not been made to appear to the Lord Ordinary that in deal- ing with those matters they exceeded their powers, or acted in violation of any statute. Even, therefore, if the Lord Ordinary had entertained a stronger opinion than he does against the judgment of the General Assembly, on any of the appeals brought before it, he would have hesitated to interfere with the sentence of deprivation in the manner proposed ; and there would be additional objection to interfering with that sentence, on account of alleged erroneous or arbitrai-y decisions of the Presbytery, which were not brought under the review of the General Assembly, while the case, on its own merits, was brought under the review of that Supreme Court for ultimate decision." " Brown v. Heritors of Kilberry, June 12, 1829, 3 "W. S. 441 ; Ferguson v. Skirving, Feb. 13, 1847, ante, vol. xii. p. 1145. 32 LEADING ECCLESIASTICAL CASES LoED President (Boyle). — My Lords, I do not tHnk we require any further argument. The only question we have to determine is, whether this Court has any power to interfere with the proceedings of the Church Courts in a matter of ecclesiastical discipline. Although we may form a different opinion in regard to matters of form, or even of suhstantial justice, in my opinion we cannot interfere to quash the sentence. I listened with the greatest attention to the argument of Mr. Logan, and though he opened the case with his usual ability, he cannot make bricks without straw. Although I had the misfortune to differ from my brethren on the right hand, Lords FuUerton and Ivory, in the memorable cases of Auchter- arder and Strathbogie, I did so on the ground that these cases involved matter of civil right, and that the decisions of the General Assembly involved a departure not only from the statutes of the realm but from the constitution of the Church itself. I stand clear of any inconsistency in holding the opinion I do in this case ; for I hold that the matter involved in the proceedings before us is a pure question of ecclesiastical discipline. We have not here anything Hke the question which was raised in the cases of Kilberry and Ferguson. These were the cases of schoolmasters, over whom the Presbytery have jurisdiction by the force of a statute. The Court held that in these cases the Presbyteries had deviated from the forms which, under the statute, they should have observed — that they had devi- ated from the ordinary principles of justice and law — and that, acting under the Schoolmasters' Act, they were bound to adhere to the rules which they had disregarded. This case, however, stands on a ground totally different. No doubt the note of suspension contains very clamant statements as to the irregu- larity of the mode in which the case was conducted before the Presbytery; but this was a libel at the instance of a Presbytery against a clergyman charged with offences which infer deposition ; and after it had been fully heard before all the Church Courts, the General Assembly, in discharge of a most solemn and painful duty, deposed this man from the office of the ministry. The offence was an ecclesiastical offence, the charge was tried in an ecclesiastical court, and we cannot interfere. "We are just driven to ask this question — does the Court of Session sit in review of the highest ecclesiastical court 1 "We have just as little right to interfere with the procedure of the Church Courts in matters of ecclesiastical discipline, as we have to interfere with the proceedings of the Court of Justiciary in a criminal question. I am therefore of opinion that this application is incompetent, and that the Lord Ordinary wsis right in refusing the note. DECIDED IN THE COURT OP SESSION. 33 Lord Fullerton. — I am perfectly satisfied that the Lord Ordinary was right. This is an attempt which, if successful, would go far indeed. For, on the very principle that we are called on to suspend the proceedings taken by the Presbytery of Deer, under an order of the General Assembly, we may, and in all probability will, be called upon to review every sentence of the Church Courts, which a party considers or maintains to be contrary to form, and unwarranted by the justice of the case. I think it of the utmost importance that we should at once express our sense of the incompetency of any such attempt. The grounds for demanding the interference of this Court, are certain alleged irregularities and informalities of the proceedings before the Pres- bytery, in the course of the proof taken against the complainer. Some of these were made the subject of appeals to the General Assembly, and the deliverances of the Presbytery confirmed ; and others were acquiesced in by the complainer. The deliverances, then, on the irregularity or informality of which the present application is founded, are deliverances by a Church Court, in the undoubted exercise of their own exclusive jurisdiction. In so far as re- gards the matters taken to appeal, they are judgments of the supreme Ecclesiastical Court ; and in so far as regards the deliverances which were not taken to appeal, they must be held final. But that is not aU. The judgment sought to be stayed is a judgment of deposition pronounced by the General Assembly. Now I have always understood that a sentence of deposition pronounced by that tribunal on an ecclesiastical offence, is beyond the reach of any interference by this Civil Court ; and I was rather curious to discover how the application was to be supported. The only authority, independently of certain general views, which I think would carry the learned counsel much farther than he would be disposed to go, is, the construction which has been put on the Schoolmasters' Act, in certain cases where the Presbyteries in the course of procedure had violated the forms essential to the ends of justice. I think your Lordship has explained those cases. The Presbyteries, after the power of appeal to the Superior Church Courts was taken away, had substantially ceased to be a proper ecclesiastical tribunal. Nobody could weU maintain that the effect of taking away the right of appeal was to render the Presbytery a Supreme Church Court. It was left substan- tially an inferior court, constituted by special statute — but an inferior court from which there was no appeal. It placed it in some measure in the situation of the SmaU-debt Court, of which the judgments are not appealable, but which, if they go out of the statute, may be set right by the authority of the Supreme Civil Court. Accordingly, that was the ground 34 LEADING ECCLESIASTICAL CASES taken by the learned Lord who pronounced the judgment of the House of Lords in the case alluded to. But here there is no room for applying such a principle. The case is confessedly one within the proper province of the Church Courts, and has been adjudicated by the tribunal which, within that province, we must hold to be supreme. The extreme cases put in argument by the learned counsel prove nothing. Indeed, such cases never do. It would be just as easy to sup- pose cases of extreme injustice arising from the disregard of evidence ad- mitted and before the Court, as from the refusal to admit it. But the former class of cases are confessedly beyond the reach of remedy. It is not disputed that there is no appeal on the merits ; so that if the Ecclesi- astical Court were to pronounce sentence of deposition without any evi- dence of guUt, or evidence of anything but innocence, it is allowed the unfortunate party could get no relief from this Court in the way of review. But the evident answer to all those useless suppositions is, that when Supreme Courts of any kind are constituted by the laws of this or any other country, they are so constituted, on the necessary presumption that they wiU discharge, and not flagrantly violate, their duty. That is the principle which protects the supremacy of civil jurisdiction, and must be equally efficacious in the case of ecclesiastical. There is no doubt a class of cases to which your Lordship alluded, and the'only one which gives any countenance to the present application — I mean some of those which occurred in the unfortunate dissension which at one time prevailed between civil and ecclesiastical jurisdiction. In some of these cases, as, for instance, in that of Marnoch, there was no doubt a direct interference by the Civil Court with a sentence of deposi- tion pronounced by the Church Courts. But those were very special cases, and, as I understand, were decided on that specialty. The offence for which the parties were deposed was contumacy, no doubt against the Church judicatories ; but that alleged contumacy against the Church Courts was obedience to the law of the land, as declared by this Court ; and those sentences were treated, not so much as the just exercise of ecclesiastical jurisdiction, as an alleged encroachment on the civU.. What- ever may be thought of those cases, there is clearly no room whatever for applying any such principle to a case like the present, where the offender, the oflfence, and the sentence, are all within the province of the Church Courts. Lord Cuninghame. — I apprehend that the present case is not attended with any difficulty. The Ecclesiastical Courts have an exclusive jurisdic- tion in proper ecclesiastical cases ; and we are no more competent to re- view the proceedings of such courts on preliminary or incidental points, than their final judgments on the merits. DECIDED IN THE COUET OF SESSION. 35 On the contrary, it is notorious that Church Courts have their own appellate jurisdiction, from which parties subject to them must seek re- dress upon all objections to evidence and forms arising in the course of a properly spiritual process. Accordingly, there can be no doubt that the very objection to evidence maintained in this suspension was competent to the suspender before the Church Courts, primary and appellate. And if these judicatories have disposed of it, can we review their judgment 1 It would be altogether unprecedented and unconstitutional to do so. It is said the suspender's civil right in the benefice is affected by the proceeding complained of. But that consequence (which must follow in all trials for grave ecclesiastical delinquency) does not give the Civil Court right to assume a jurisdiction not belonging to them, but appropri- ately conferred privatively on Church Courts. If it did, this Court might be called to review the sentence of a Church Court in a case of heresy, which, it is obvious, would be preposterous. The suspender has further referred to the jurisdiction of this Court in schoolmasters' cases, as exemplified in the cases of Corstorphine in 1813, and Kilberry in 1825, to establish the competency of the present appeal (Dunlop, p. 500-2). But, 1st, Questions as to the election and status of schoolmasters are not in their own nature exclusively ecclesiastical causes ; and, 2d, The very ground on which the jurisdiction of this Court was sustained, both here and in the House of Lords, in the precedents referred to, was, that by the Schoolmasters' Act of 1803 (43 Geo. Ill, c. 43), aU appeals from the Presbytery to the Superior Church Courts were excluded, and so the Civil Courts were necessarily competent to protect men in patrimonial office when the Inferior Court falls into a palpable excess of power, or deviation from form. — (See Lord Lyndhurst's speech on the Kilberry case.) The reverse is the case here ; and as the suspender, a proper ecclesiastical functionary, has been deposed by the highest appel- late tribunal appropriated to the cognisance of the case, the Court has no power or right of review, on any competent ground. LoBD IvOET. — I^m of the same opinion. This Court does not sit as a court of review over the Church Courts in ecclesiastical matters. We are asked to quash certain proceedings taken before the proper tribunal, the Ecclesiastical Court ; and we are asked to do so upon some such ground as this, that, being the supreme judicatory of the land, we have a control over aU other judicatories, and are bound to keep them within their proper forms of procedure. Even taking the matter in that view, it is only as a supreme civil judicatory that the Court can exercise these functions ; and it is one of the inconveniences, if inconvenience it be, of having two independent and 36 LEADING ECCLESIASTICAL OASES supreme judicatories in the same kingdom, that each is necessarily supreme within its own province, and is not, with reference to matters falling within that province, liable to any review whatever. Even where the matter is properly within the province of the Civil Court, and where we are interfering with an inferior civil judicatory, whose jurisdiction in that particular matter has been declared exclusive, and not subject to review, our right to control its proceedings arises from the fact that the inferior judicatory has exceeded its powers. We inter- fere because the inferior court has gone beyond its province, and has, by doing so, lost the protection of the statute under which it possesses ex- clusive jurisdiction. I should no more think of disturbing a decision of the Supreme Eccle- siastical Court in an ecclesiastical matter, than I should think of dis- turbing the decisions of the Courts of Justiciary or Exchequer in a matter falling within their respective provinces. These Courts may, in our opinion, have gone wrong in rejecting evidence which we would have received ; but because there happened to be a diversity of opinion as to the propriety of rejecting that evidence, could it be maintained that it was competent to seek a remedy in this Court 1 Where any Court possesses an exclusive jurisdiction, supreme within its province, any question arising within that province must be ex- hausted, and brought to a close before that tribunal. Here the offence is ecclesiastical, the procedure is ecclesiastical, and the whole matter was competently dealt with by the Supreme Ecclesiastical Court. If we are not entitled to review a sentence on its merits — even in the extreme case, that it is plainly against all principles of law and justice — still less can we interfere with any of the steps of procedure by which that sentence has been reached. Suppose that the sentence we are called upon to review had been pro- nounced by the Presbytery, and that the complainer was asking for in- terdict against any further proceeding until these witnesses had been admitted, would not the answer have been that he should go to the tri- bunal appointed to dispose of such matters — that his remedy lay in the Ecclesiastical Court through all its gradations 1 If there be no remedy in that case, neither is there any here. If a great wrong is to be redressed, the sooner it is corrected the better. We could not do it in the case sup- posed, because we have no jurisdiction — still less can we do it here. It would be a most dangerous precedent to entertain this application. There are three answers to the argument founded upon the cases de- cided under the Schoolmasters' Act. In the first place, in these cases the Court was dealing with matters of civil right ; in the second place, the Presbytery is a statutory judicatory in such cases; and, in the third place DECIDED m THE COUET OF SESSION. 37 there is no review of the proceedings of the Presbytery unless in this Court. The last was the ratio of the decision of the House of Lords ia the case of Kilberry. Lord Lyndhurst laid the greatest stress upon that consideration ; and looking to the whole tenor of his judgment, I doubt exceedingly if he would have expressed the same opinion had the statute declared that there should be an appeal to the General Assembly. I give this opinion with greater confidence, because in the memorable cases of Auchterarder and Strathbogie, in which I had the misfortune to differ from the majority of the Court, I was inclined to take the wider view of the ecclesiastical jurisdiction. I am bound to hold that these cases were rightly decided ; but what was the ground on which the Court interposed ? It was not because they thought themselves entitled to interfere with the proper ecclesiastical jurisdiction of the Church Courts, but because they held that the Ecclesiastical Courts were going out of their province, and were touching matters which were properly questions of civil right. That ground went to this, that in those ques- tions, viewed as questions of civU right, the Church Court was no tri- bunal at all. The case of Cambusnethan was decided upon the same principle. The objection there taken was, that the Church Court was not duly constituted — that it was not entitled to be protected as a Church Court. But the Court thought that the Ecclesiastical Court was well consti- tuted, and, being of that opinion, declined to interfere with its pro- ceedings. Here the case is a fortiori. I do not go into the particular objections argued by the complainer ; I think it much more expedient that the judgment should rest upon the broad ground of competency. We cannot look into the merits of the objections. If these questions were ill decided, that is one of the inconveniences of having two separate tri- bunals, each independent and supreme in its own province. The law has entrusted all these questions to the Church Courts ; the proper Court has heard these objections pleaded, and has pronounced judgment upon them, and I do not think it competent for us to interfere. The Court refused the note. Jambs Bell, S.S.C— Lockhakt, Moeton, 'Whitehead, & Geeig, W.S.— Agents. 38 LEADING ECCLESIASTICAL CASES Maech 9, 1861. The Reverend "William Paterson and his Curator and Others, Complainers. — A. B. Clark — A. Moncrieff. The Presbytery of Dunbar, Eespondents. — Cook — Zee. First Division. — Lord Jerviswoode. Bill-Chamber. Church — Jurisdiction — Interdict. — A minister having been served with a libel, charging him -with intoxication, lodged defences, and was thereafter cited to appear personally at a certain meeting of Presbytery, on which occasion he was represented by counsel and agent who pleaded intervening insanity, of which he offered to lead evidence at a future diet, in bar of any farther pro- cedure. The Presbytery, in respect of his having given in defences, and thus sisted himself as a party to the cause, and also in respect of the vagueness of the crave, refused to sist proceedings. A note of suspension and interdict was presented against the Presbytery adopting farther procedure until the plea of insanity should have been considered and disposed of. The Court (aff. judgment of Lord Jerviswoode), holding that in the circumstances stated there was no ground for interference, refused the note, without answers. On 18th. June 1859 a curator bonis was appointed to the Reverend William Paterson, minister of Cockburnspath, on the ground of insanity. He was then in an asylum. On 2 2d March 1860 he was discharged, and thereafter attended partially to his parochial duties. On 3d January 1861 he was served with a libel charging him with various acts of intoxication from drink, alleged to have been com- mitted at various periods from the year 1851 to the year 1859 inclusive. To this libel he put in defences. On 6th February 1861 he was cited to appear personally before the Presbytery, at a meeting to be held on the 25th February 1861. At that meeting Mr. Paterson did not appear, but was represented by counsel and agent. Mr. Paterson's counsel then stated for him that he " had this morning received two medical certificates, of this day's date, signed by Dr. Gairdner and Dr. Skae respectively, certifying that the Reverend Mr. Paterson is at present in a state of unsound mind ; which certificates he produced, and pleaded the insanity- of the Reverend Mr. Paterson, of which he offered to lead evidence at a future diet, anterior to any further procedure in the cause, in bar of any further procedure in support of the charges in the libel." But " the Presbytery, in respect of the defender having already given in answers to the libel against him at the instance of the Presbytery, and thus sisted himself a party in the case, and also in respect of the vagueness of the crave made by the defender's counsel, refuse said crave, and proceed to ap- point a day for the probation of the libel." A note of suspension and interdict was then presented in name of Mr. Paterson, his wife, and curator bonis, against the Presbytery, praying the Court to interdict them " from adopting any further procedure in DECIDED IN THE COUET OF SESSION. 39 support of tlie charges, so long as the said Eeverend William Paterson continues in a state of unsound mind, and until it shall be ascertained that he is in a state of soundness of mind ; or otherwise, to interdict, etc., the respondents from adopting any further procedure in support of the charges cqjitained in the said libel until the plea of insanity, of which a proof was offered anterior to any further procedure in the cause, shall have been considered and disposed off." On 2d March 1861 the Lord Ordinary pronounced the following interlocutor : — " The Lord Ordinary having considered the note of sus- pension, and heard counsel thereon, and on the caveat lodged for the respondents, the Presbytery of Dunbar, refuses the note, and finds the complainers liable to the respondents in the expenses of process." ' The complainers reclaimed, and argued — That the right of an in- sane person to be protected against any criminal or quasi criminal prosecution being proceeded with during his insanity was a civil right, for the maintenance of which he was entitled to appeal to the Court of Session. Here a prima facie case of insanity had been fully made out, both by the medical certificates and by the fact that a curator bonis had been appointed by the Court of Session. It was therefore totally incompetent for the Presbytery to resolve to proceed. The complainer was at all events entitled to have it tried whether he was in such a condition as to require protection or not. Bejplied — The statements of the complainer, and the proceedings referred to, disclosed no appearance or averment of excess of jurisdic- tion on the part of the Presbytery. It belonged to the Presbytery, before whom the insanity was pleaded, to dispose of it, subject to the 1 " iJ"oTE. — Tlie Lord Ordinary has been pressed for immediate judgment in the present note of suspension, and he confesses he was, at first sight, somewhat startled by the statemefits in the note, and by the terms of the deliverance of the Presbytery of the 25th February last, which forms the more immediate subject of the present complaint. But, on consideration, he has come to the conclusion that the subject- matter of the complaint is one with which he cannot, on any of the grounds stated, interfere, and on the merits of which he, therefore, offers no opinion. The leading facts are — That the complainer was charged, under a libel, with an offence of a char- acter clearly cognisable by the Presbytery, as the ecclesiastical court to the jurisdic- tion of which the complainer Paterson was amenable. He pleaded to that libel by lodging defences. The Presbytery pronounced a certain deliverance, against which the complainer appealed to the Synod ; and the Presbytery further appointed a meet- ing to be held on the 25th February last, for the purpose of dealing with the said complainer according to the form of process, or of resolving to proceed to the proba- tion of the libel, according to law. " At the meeting thus appointed, some procedure took place with reference to the reasons of appeal for the said complainer against previous findings of the Presbytery ; and the said complainer was therefore called, and did not personally appear ; but appearance was made on his behalf by counsel, who stated that he had that morning received two medical certificates of that date, certifying that the said complainer was then in a state of unsound mind, and he pleaded the insanity of the said complainer, ' of which he offered to lead evidence at a future diet, anterior to any further procedure in the cause, in bar of any further procedure in support of the charges in the libel. ' " The Presbytery disposed of this plea in the manner complained of, and resolved 40 LEADING ECCLESIASTICAL CASES review of the superior chiirch courts ; and, in disposing of it, they were obviously entitled to consider and decide upon the sufficiency of the statement on which the plea was founded, also the relevancy ot the plea in the circumstances ; and also to investigate the merits ot the plea, and of the statements on which it was founded. ^In the present case, no ground whatever had heen set forth for the interference ot the Court with the Presbytery's judgment, which was rested on the vagueness of the crave, and implied no absolute refusal to entertain and dispose of a plea of insanity properly stated and supported. -Be- sides, the proper court for reviewing the judgments of a Presbytery in a case of ecclesiastical discipline, was the Synod. If their judgment in this case had been erroneous, the presumption was, it would be reversed by the proper court of review, and would therefore do the complainer no harm. The case of Lockhart, referred to by the Lord Ordinary, was conclusive. Lord President (M'Neill).— I think the Lord Ordinary has arrived at the right conclusion in refusing this note of suspension and interdict. I think the matter which is endeavoured to be brought before this Court is a matter proper for the Court before which the proceeding has taken place. I do not go iuto the particulars of this party's case. He seems to have been in a sort of intermittent state, — sometimes sane and sometimes not, accord- ing to the defence lodged for him ; but the cause is going on under a to proceed to probation of the charges in the libel, and appointed their next meeting to be held at Dunbar on the 4th March for that purpose. " The prayer of the note of suspension is directed against this resolution, and against any further procedure on the part of the respondents against the complaiaer while he continues in a state of unsound mind, or until it is ascertained that he is in a state of soundness of mind ; or otherwise, to prohibit procedure on the libel until the plea of insanity shall have been considered and disposed of. " It is not, however, alleged on the part of the said complainer, that the plea of insanity thus put forward on his behaK was one with which it was beyond the competency of the Presbytery as a court to deal ; his complaint is, in reality, that that Court has not dealt with that plea as he maintains they ought to have done. Now, it appears to the Lord Ordinary, taking the present case on this footing, or on any footing on which it can be placed consistently with the facts, as disclosed in the note of suspension, that it is one with which the Presbytery, as the judicial tribunal having jurisdiction in the subject-matter of the libel, was and is entitled to deal — subject always to the review of the superior judicatories of the church, but free from all control or review on the part of the civil court, so long as the procedure is not in excess of the powers with which the Presbytery, as an ecclesiastical court, is by law invested. " The Lord Ordinary sees no such excess here ; and if this be so, he thinks it out of the question to interfere by granting any interdict, or even so far as by passing the note. In thus disposing of the present application, and in arriving at his present judgment, it has appeared to the Lord Ordinary that he is supported by the authority of Lockhart v. the Presbytery of Deer, July 5, 1851, and by the opinions of the Lord Ordinary and of the Court in that case, which are of the greajtest cogency, and of the highest authority." DECIDED IN THE COUET OF SESSION. 41 certain libel against him for intemperance, wliich is called an ecclesiastical crime or offence, and defences have been put in. Upon the 6th of Feb- ruary certain proceedings had taken place, against which an appeal was entered, and reasons of appeal were lodged for him on 11th February. The Court was to proceed on the 25th with further steps in the cause ; and on the 25th, when the case came on, objection was taken to further procedure, — ^his counsel " stated that he had this morning received two medical certificates, of this day's date, signed by Dr. Gairdner and Dr. Skae respectively, certifying that the Eev. Mr. Paterson is at present in a state of unsound mind ; which certificates he produced, and pleaded the insanity of the Eev. Mr. Paterson, of which he offered to lead evidence at a future diet, anterior to any further procedure in the cause, in bar of any further procedure in support of the charges in the libel." Then there is an answer made to that ; and the deliverance of the Presbytery is, that, " in respect of the defender having abeady given in answers to the libel against him at the instance of the Presbytery, and thus sisted himself a party in the case, and also in respect of the vagueness of the crave made by the defender's counsel, refuse said crave, and proceed to appoint a day for the probation of the libel." Then his counsel protested for all remeid competent in law, and appealed, and took instruments and craved extracts, which were granted. Then the Presbytery fixed 4th March for proceed- ing. The coxmsel for the prosecutors then tendered, and craved leave to put in, an additional list of witnesses with reference to the defence of insanity or unsoundness of mind ; and it is in that state of matters that the present application is presented to us, which seeks an interdict against the Presbytery proceeding. I think that Mr. Moncrieff now limits his demand to the second of the alternatives contained in the prayer, and which is thus expressed — " or otherwise, to interdict, prohibit, and dis- charge, or to remit to the Lord Ordinary to interdict, prohibit, and dis- charge the said respondents from adopting any further procedure in sup- port of the charges contained in the said hbel, until the plea of insanity of the said Eeverend WUHam Paterson, which was put forward on his behalf at a meeting of the said Presbytery held on the 25th day of the present month of February 1861, and of which a proof was offered anterior to any further procedure in the cause, shall have been considered and disposed o£" He does not say by whom considered and disposed of, but until it shall have been considered and disposed o£ It appears to me that we cannot interfere in this matter. I think that the Presbytery were the proper judges, in the fijst place, of whether the plea was stated to them in a proper form, and I think they were also the proper judges as to when they were to take it into consideration. They were the proper judges as to the stage at which it should be proceeded with — as to the 42 LEADING ECCLESIASTICAL CASES course of their own proceeding ; the proper judges as to whether that matter should be investigated at the same time (the 4th March), which they had fixed for further inquiry, — m short, to regulate their own order of procedure in regard to the matter. It might turn out on 4th March that this gentleman was not in a condition to lead any evidence of insanity. It might turn out, if his malady was of an intermittent nature, that he was perfectly competent to go on. "We do not know what course might have been adopted. But, if there was anything wrong or irregular in what the Presbytery did, I think the proper appeal was not to this Court but to the superior church tribunal. It is said that, in the meantime, evidence might have been led in support of the charge. But that would have raised a question of the order of procedure in the ecclesiastical court, with which we do not interfere. If the Presbytery tried to do what was in- competent or irregular, their ecclesiastical superiors are the proper parties to check them in that course of proceeding. It would be a strong thing to say that whenever a Presbytery does anything which a party considers to be wrong, regarding an ecclesiastical rule of procedure, this Court is to be at once resorted to. I think it would be out of the question that we should interfere at such a stage of the proceedings, and upon such an application. It is said we ought to interdict the Presbytery till this defence is disposed of. When disposed of? The Presbytery repel it. An appeal is taken to the Sjmod ; the Synod repel it ; and the Presbytery are to be interdicted from proceeding with the proof, however consistent with ecclesiastical form that might be ; or are the Presbytery, however extravagant the application of the defender may appear, to be interdicted from taking a step which they consider right in ecclesiastical procedure, to preserve evidence or otherwise, tiU the final disposal of this plea of in- sanity? It is quite contrary to any authority which we have, and it certainly .is contrary to the principle on which the case of Lockhart was decided, that we should interfere here at all. Lord Ivory. — I am of the same opinion, and have been so from the moment I read the papers. If we arrived at any other result it would be going contrary to the whole principles of independent jurisdiction, which separate the Ecclesiastical from the Civil Courts. Each is inde- pendent of the other, and each has its own exclusive field of jurisdiction, and within that field is paramount. No more can we interfere with an ecclesiastical jurisdiction, keeping within its competency, than the eccle- siastical jurisdiction could interfere with us, keeping within our competency, or with the Court of Exchequer or Court of Justiciary in matters proper for these Courts. They must, therefore, have equally exclusive and inde- pendent power and right of explicating their jurisdiction. The cause is DECIDED IN THE COUET OF SESSION. 43 well before them ; all that is necessary for the judgment of the cause is also before them ; and the mode of coming to the issue is equally theirs. That is the principle which was laid down in the case of Deer and various other cases. It is totally out of the cases prior to 1843, where the courts went out of their jurisdiction and usurped functions which did not belong to them. But this is an act within the jurisdiction of the court in a cause which is within their exclusive jurisdiction. I hold that every supreme court (and this Presbytery is a srfpreme court within its own sphere), has, because of its j.urisdiction, every power necessary to explicate that jurisdiction. They are entitled to regulate their own rules and forms of process ; they are entitled to regulate the nature and extent of the proceedings which should be taken before them, and it does not seern to me that the Presbytery here has done anything beyond that. I do not think I am entitled to form any opinion as to whether that which they have done was a thing which they ought to have done. I think this Court has no power to interfere in the matter, and I am therefore of the same opinion as your Lordship. LoBD CuRRiEHiLL. — I Understand the state of this case to be simply this : — There is a suit depending in the Ecclesiastical Court, which is quite within the competency of that Court, and which has been brought before it in a regular manner. On the 25th of February last, when that case was being moved, at a certain stage in the course of procedure the counsel for the parties appeared, and stated that, in consequence of the state of mind of the accused, the proceedings should be delayed, and he offered proof, at a future diet, of that state of mind ; and the plea he maintained was, that that proof should be led in bar of any further pro- cedure in the cause. The Court took that motion into its consideration after hearing counsel for the parties, and they pronounced a judgment by which they refused " said crave, and proceed to appoint a day for the probation of the libeL" On the part of the defender there is an appeal entered against that judgment to the proper ecclesiastical tribunaL That is the state of the case. The judgment complained of is at this moment under appeal to the proper tribunal, where it will be dealt with in the proper form. The appeal wiU. be either sustained or repelled. If that tribunal affirm the judgment we cannot interfere with that ; if they alter it, of course anything that takes place in the meantime wUl go for nothing. It appears that, by a regulation of the Ecclesiastical Courts, it incompetent, notwithstanding an. appeal of this kind, to go on in the meantime. AU that is perfectly competent, in consistency with the law of the church — with the form of procedure of the court in which this case is depending. So that everything here is quite regular in point of form. In that state of matters I do not see how it is possible for this Court to interfere, 44 LEADING ECCLESIASTICAL CASES unless we are to assert a jurisdiction to interfere with Ecclesiastical Courts in cases that are competently before them, and where they have not even gone wrong in point of form, and where the party is seeking his redress according to the laws of the church. I have not the slightest hesitation in saying that I think the Lord Ordinary has come to a right decision. Lord Dbas. — In disposing of this case it is necessary to attend to the nature of the proceedings sought to he interdicted, and to the precise cir- cumstances under which our interposition is sought. The Reverend complainer, the minister of Cockburnspath, was served with a libel on 2d January last, charging him with certain ecclesiastical offences. To this libel he lodged defences, with a list of exculpatory witnesses annexed, on 6th February, when he was heard by counsel and agent against the relevancy, which, however, the Presbytery sustained; and appointed their next meeting to be held on 25th February, for dealing with the complainer or allowing probation, and appointed him to appear personally that day, which appointment was intimated to his agent apud acta, and to himself by letter. He did not appear on the 25th, but his counsel and agent appeared for him, and produced certificates of that date from two medical men, bearing that he was then, and had been for some time past, " in a state of unsound mind," of which fact they offered to adduce evidence at a future diet, and pleaded insanity in bar of any further procedure on the libel. It was answered that the certificates afforded no evidence of such unsoundness of mind as incapacitated the complainer from giving instruc- tions for his defence ; and, further, that, having pleaded to the libel, there was in the circumstances, and looking to the vagueness of the offer of proof of unsoundness of mind, no good ground for delaying procedure, so far at least as regarded fixing a diet for probation. The Presbytery resolved to proceed to appoint a day for probation, whereupon the com- plainer's counsel protested and appealed, took instruments, and craved extracts, which were allowed. Monday, 4th March, was then appointed for proceeding to probation. No list of witnesses to prove insanity in bar of trial was lodged or tendered on behaK of the complainer. In these circumstances, in place of following out his appeal to the superior church courts, the complainer at once comes here by note of suspension and interdict, craving that we shall interdict the Presbytery from proceeding further upon the hbel, so long as the complainer continues in a state of unsound mind, or until the plea of insanity in bar of trial shall be con- sidered and disposed of. I am humbly of opinion that the note of suspension and interdict presented in these circumstances has been rightly refused. The Presbytery is an Ecclesiastical Court, invested with undoubted jurisdiction to try the offences set forth in the Ubel, subject to review of the superior Church DECIDED IN THE COURT OF SESSION. 45 Courts. It is ■within the jurisdiction of every competent court to enter- tain and decide upon a plea of insanity in bar of trial, equally with a plea of insanity at the time the alleged offences were committed, or any ordinary defence upon the merits. "What the Presbytery do or fail to do m these respects will be subject to review by the Synod and General Assembly. If the Church Courts exceed their jurisdiction we may interfere to correct them. But we are not to presume, beforehand, that there will be such excess. How the matter might stand if, throughout the whole pro- cedure, the individual libelled had been notoriously an idiot or a maniac, utterly incapable of knowing what was going on, and the Church Courts, successively, refused to allow that incapacity to be inquired into, I shall not presume to say. The question in such a case might come to be whether the church courts could be said to have had a party before them at all, whose civil rights could be affected through their ecclesiastical sentence. It will be time enough to deal with a question of that sort when it arises. The case here is very different. The complainer, when in a sane state, was served with a libel, and lodged defences. The plea that he had become insane has been as yet supported only by certificates, which are not legal evidence of their contents. These certificates do not bear, nor was it explicitly offered to be proved, that the alleged insanity is such as to incapacitate the complainer from giving instructions for his defence. No list of witnesses was tendered by whom the objection was proposed to be proved ; and all that the Presbytery have hitherto done is to hold that there has been nothing, as yet, put before them which ought to prevent them from going on with the case. In this they may have exercised a sound or an unsound discretion. But they were entitled to exercise their discretion; and for the way they have done so they are amenable only to their ecclesiastical superiors. Whether, in point of law, civU or ecclesiastical, insanity bars aU procedure on a libel of this kind to which the party has pleaded, or whether it may go on, with or without a curator to conduct the defence, I shall not presume to say. Neither shall I inquire, until the point arises, what would be the effect of an absolute refusal to entertain or consider a plea of insanity in bar of proceedings terminating in a final sentence which necessarily affected or took away the complainer's civil rights. It is enough that, as the case stands (whatever may occur hereafter), there has been as yet no excess of jurisdiction requiring and entitling us to interfere. The Cotjet pronounced the following interlocutor : — " Adhere to the Lord Ordinary's interlocutor submitted to review, and refuse the desire of tl;e note : Find additional expenses due, and remit," etc. Lindsay & Patbbson, W.S.— W. & J.' Cook, W.S.— Agents. 46 LEADING ECCLESIASTICAL CASES June 29, 1870. The Eevekend William Feegusson Wight, Complainer. — Sol.-Gen. Clark — Mair — /. Gibson. Presbytery of Dunkeld, and General Assembly of the Church OF Scotland, Eespondents. — Lee — Kinnear. Second Division. — Lord Mackenzie. BiU-Chamber. Chwrch, Courts of — Jurisdiction — Ecclesiastical Offence — Suspension. — ^A minister of the Established Churcli was served by his Presbytery with a libel charging him with "jfomioation, as also indecent and scandalous familiarity by a minister of the gospel with a woman." He pled guilty to " scandalous familiarity with a woman," but denied fornication or indecent familiarity. The Presbytery, in February 1870, accepted his plea, and suspended Mm for six months. On the petition of five of his elders, who had not appeared in and were not parties to the proceedings before the Presbytery, the General Assembly, held in May 1870, found that the proceedings of the Presbytery in accepting the plea without disposing of the charges in the libel were irregular, and ordained them to proceed with the libel. The minister pre- sented a suspension of this judgment of the Assembly, on the grounds (1) that it was incompetent for the petitioners, who were not parties to the pro- ceedings of the Presbytery, to apply to the Assembly by petition ; and (2) that havin^g" been tried and sentenced by a competent Court, and undergone more than one-half of his sentence, the Assembly exceeded their jurisdiction in ordering him to be tried again on the same libeL Held that the proceed- ings complained of were within the exclusive spiritual jurisdiction of the Church Courts, and could not be reviewed by the Court of Session. This was a note of suspension and interdict at the instance of the Eev. Mr. Wight of Auchtergaven to suspend certain judgments of the General Assembly of the Church of Scotland, and interdict the Pres- bytery of Dunkeld from carrying them into effect. The circumstances were thus stated by the Lord Ordinary (Mac- kenzie): — "The leading facts stated in the note of suspension and interdict for the complainer, who is minister of the parish of Auchter- gaven, in the Presbytery of Dunkeld, are to the following effect : — On 14th December 1869 the Presbytery of Dunkeld served a libel upon the complainer, in which he was charged with ' fornication, as also in- decent and scandalous familiarity by a minister of the gospel with a woman, to the disgrace of the sacred profession of a minister.' On 30th December 1869 the complainer lodged answers, in which he objected to the relevancy, and, on the merits, pleaded not guilty ; and on 4th January 1870 the libel was found relevant, and a committee of the Presbytery appointed to confer with the complainer, and to endeavour to bring him to a confession. This committee dealt with the complainer, and he acknowledged, in regard to the charges in the libel, that he had been guilty of that part of the alternative charge which accused him of DECIDED IN THE COUET OF SESSION. 47 scandalous familiarity with a woman, unbecoming the character of a minister of the gospel ; expressly denying, however, on soul and con- science, fornication or indecent familiarity, and he also declared his deep contrition for having so acted, and his willingness to submit himself to the censure of the Presbytery. This was reported to the Presbytery, and on 1st February 1870 the report of the committee was taken into consideration, and the complainer being at the bar, pleaded guilty to the charge of scandalous familiarity as libelled. The Presbytery thereupon, by a majority, received the complainer's acknowledgment without proceeding further in the prosecution of the libel, suspended him from the discharge of his ministerial duties for the period of six months, and admonished him, and fixed the amount to be paid to an assistant to discharge the duties of the cure during the said period at £55. The complainer avers that intimation was also made to him that the libel qmad ultra had been abandoned. He also avers that no appeal or complaint having been taken to the Synod, the sentence and judg- ment of the Presbytery, ' by the laws and practice of the Church became final ;' and that he has, in accordance with the terms of his sentence, performed no ministerial duty since the date of his suspension, and has paid to the clerk of the Presbytery the foresaid sum of £55 for the assistant who is discharging the duties of the cure. The complainer further avers that a petition was presented at the meeting of the General Assembly of the Church of Scotland, held in May 1870, by five elders of the parish, of Auchtergaven, who had not appeared in and were not parties to the proceedings before the Presbytery, in which they prayed the General Assembly to take the foresaid judgment of the Presbytery into their consideration, and thereafter to do in the premises what should seem right and just in the interest of religion and morality for the parish and church ; that on 24th May, the petition having been a second time called, counsel for the complainer objected to its competency and was heard, and that the General Assembly found ' that the pro- ceedings of the Presbytery are alleged to have been tainted by irregu- larities ;' 'that, in the special circumstances alleged, the matter has been properly and competently brought under the notice of the General Assembly,' appointed intimation to the Presbytery, ordained them to appear at the bar on 27 th May, and continued the cause to that day ; that on 27th May the cause was remitted to a committee ; and that on 30th May 1870, parties having been heard, the General Assembly found ' that the proceedings of the Presbytery of Dunkeld, in accepting a certain acknowledgment by Mr. Wight, as a confession of guilt, and in sentencing him to punishment thereupon, without disposing of the charges in the libel which they had served on Mr. "Wight, to both of which Mr. Wight pleaded not guilty, were, on the face of the said proceedings themselves, irregular, contrary to the laws and practice of the Church, and altogether null and inept ; ordain the said Presbytery now to proceed forthwith in the discharge of the duties undertaken by them in beginning the said process against a minister of the gospel, and that in conformity to the laws of the Church,' and reserved to the com- plainer ' his whole objections and pleas to the said libel, or such other 48 LEADING ECCLESIASTICAL CASES proceedings as the Presbytery may adopt.' On this statement the complainer prays that the judgments or deliverances of the General Assembly of the 24th and 30th May 1870 be suspended, and interdict granted against the Presbytery proceeding, in accordance with these judgments, to revive or reopen the process of libel served by the Presbytery upon the complainer." The compla,iner pleaded — (1.) The complainer having tendered a proper plea to part of the charge preferred against him in the libel, and such plea having been accepted by the Presbytery, and judgment having been pronounced, and sentence passed upon him, without complaint or appeal, and he having submitted to said sentence and undergone the greater period of the term of suspension, it is incompetent for the Pres- bytery to proceed to try him again upon the same Hbel, or for alleged offences covered by that libel. (2.) It was ultra vires of the General Assembly, according to their own constitution and laws as an Ecclesias- tical Court, upon the terms of, and form of proceeding in, the petition of the elders of Auchtergaven presented to them, to take the same into consideration, and to direct the said Presbytery of Dunkeld to reopen the case against the complainer. (3.) The complainer having after libel for alleged offences undergone trial, and received sentence of a com- petent Court, and the judgment of that Court become final, it is con- trary to the law of Scotland that he should be tried again before that Court for the same alleged offences. (4.) The said deliverances of the General Assembly, which are in their manner and operation in violation of the constitution and laws of the Church and the laws of the realm, commit an infringement of the complainer's civil rights, and are in excess of the powers of the Courts of the Church, and unjust and oppressive, and they ought to be suspended by the Supreme Civil Court ; and the persons defending the same ought to be found liable in expenses to the complainer. The Lord Ordinary pronounced this interlocutor : — " Having con- sidered the note of suspension and interdict, and heard counsel thereon, and on the caveat lodged for the respondents, the Eev. George Ritchie and others, as representing the General Assembly of the Church of Scotland, refuses the note, and finds the complainer liable in expenses," etc.i 1 << UoTE. — (After the narrative of the facts given above) — It was not disputed by the complainer that the offence with which he was charged was an ecclesiastical offence, and that it was properly brought before the Presbytery against him. The General Assembly is the Supreme Ecclesiastical Court in Scotland. The judgments complained of were therefore pronounced by the Supreme Ecclesiastical Court on a person subject to their jurisdiction in a cause strictly ecclesiastical. The complainer prays for suspension of these judgments, and interdict against their being carried out ; and the grounds on which he does so are, that the proceedings before, and the sentence of the Presbytery were at an end and final ; that he has suffered nearly the whole of the punishment imposed, and that no man was bound to thole an assize twice ; that the elders on whose petition the General Assembly proceeded were not parties to the libel before the Presbytery, and made no appearance there ; that there was no pro- cess before the General Assembly ; and that the judgments and proceedings of the General Assembly were in excess of their jurisdiction, grossly irregular, and contrary DECIDED IN THE COURT OF SESSION. 49 The complainer reclaimed, and argued ; — (1) The petitioners not having been parties to the proceedings in the Presbytery, and, separatim, not having dissented or appealed either to the Synod or the Assembly from the judgment of the Presbytery, their petition to the General Assembly was incompetent. (2) The complainer having been tried and sentenced by a competent Court, and having undergone the greater part of his sentence, the Assembly exceeded their jurisdiction in ordering him to be tried again on the same libel. No one, was bound to thole an assize twice. It was competent to the Presbytery to accept the complainer's confession to part of the libel, and abandon the remainder. The complainer's plea was a good plea. There was no distinction between "indecent" and "scandalous" familiarity in a minister of the gospel with a woman ; but if the libel, as it originally stood, did not contain a specific charge of "scandalous" familiarity, it was practically amended by the Presbytery accepting the complainer's plea to that charge. This was not a mere question of procedure, it was a question of excess of jurisdiction. The Church Courts had a regular form of process, and were not entitled to break it.* They could not, for example, at once depose a minister, but were bound to proceed by libel. If irregularities were committed by the Presbytery, the Assembly might to the laws and constitution of the Chvtrch. The Lord Ordinary is not aware of any authority for holding that the General Assembly exceeded their jurisdiction in the matters complained of, and the complainer did not cite any statute or other authority to that effect. There has been, so far as he can see, no excess of powers or disregard of statutory provisions. It appears to the Lord Ordinary that the whole matter was within the jurisdiction of the Church Courts, and if so, then the only other question is, whether or not the General Assembly proceeded correctly, and acted rightly in sustaining the competency of the petition of the elders, and pronounced judgment according to the laws and practice of the Church. The Lord Ordinary considers that this was a question of ecclesiastical law and procedure, of which it was the exclusive province of the General Assembly to judge, and with which the Court of Session has no right to interfere. If this Court were to do so, it would simply, it is thought, be reviewing the proceedings of the Supreme Ecclesiastical Court in a matter and in pro- cedure purely ecclesiastical. The answers to the objections stated by the complainer to the procedure and judgment of the General Assembly, aU depend upon the law and practice of the Church, of which the complainer is a minister ; and the General Assembly, after hearing parties, and considering these objections, pronounced judg- ment thereon. The Lord Ordinary is of opinion that the Court of Session has no right to review or interfere with that judgment. Further, there was reserved by the judgment of 30th May to the complainer his whole objections and pleas to the fore- said libel, or such other proceedings as the Presbytery may adopt. If the law and practice of the Church be as stated by the complainer, he will have an opportunity of stating it to the Church Courts, who have the sole cognisance thereof — (Campbell V. Presbytery of Kintyre, Feb. 21, 1843, 6 D. 657 ; Lockhart v. Presbytery of Deer, July 5, 1861, 13 D. 1296 ; Paterson v. Presbytery of Dunbar, March 9, 1861, 23 D. 720). The respondents pressed for judgment on the note of suspension and interdict, and maintained that answers were unnecessary. After a very full and able argument, the Lord Ordinary has given effect to the contention of the respondents, as he considers that, on the averments made in the note of suspension and interdict, the Court of Session cannot review the proceedings and judgments complained of." 1 Presbytery of Strathbogie v. Cruickshank, Feb. 14, 1840, 2 D. 585. e' 50 LEADING ECCLESIASTICAL CASES have censured them, but were not entitled on account of the Presbytery's irregularities to try the complainer twice on the same charges. They therein exceeded their jurisdiction, and the complainer having been in- jured thereby was entitled to be protected by the Civil Courts. The respondents, the General Assembly, replied; — (1.) It was not denied that this case referred to an ecclesiastical offence, and in questions as to ecclesiastical offences the Church Courts were supreme. The Court of Session might inquire whether a certain matter was civil or spiritual, but if spiritual, the Church Courts were the sole judges of their own jurisdiction and practice. In regard to spiritual matters, of which a case of discipline was one, the Church Courts had a jurisdiction quite independent of the Civil Courts. The Assembly decided that petition was a competent mode of bringing this case of discipline before them, and of that they were the sole judges. They had in several instances departed from their usual forms of process. In 1838 a minister having appeared in the Assembly in an intoxicated condition, they called him at once to the bar, without requiring his Presbytery to proceed against him by libel. And in another case, where a fama clamosa had gone abroad about the minister of Whitesome, the Presbytery of Chirnside, upon his acknowledging his guilt, censured him, and suspended him for six months. The Synod of Merse and Teviotdale having appointed a committee to examine the records of Presbyteries, that committee reported that the Presbytery of Chirnside should have proceeded by libel, and the Synod ordered the Presbytery to proceed in that way. On appeal, the Assembly affirmed the decision of the Synod, although the minister had already suffered a sentence of suspension. If pro- cedure by petition was incompetent, a dereliction of duty or an error on the part of a Presbytery, although appearing ex facie of their pro- ceedings, could not be amended. The parishioners, not being members of the Presbytery, had no right of appeal. They could not go to the Court of Session, for they would be told, " You have a competent court of review in the Assembly, and they are the only judges of such a question." (2.) The Assembly decided that the complainer had not tholed an assize, and they were the only judges of that.^ The charge to which the complainer pled guilty was not in the libel, and he had never been tried on the libel at all. There was thus on the face of the proceedings of the Presbytery a nullity, which the Assembly were bound to rectify. If there was a nullity, no acquiescence could bar the Assembly from rectifying it. Lord Justioe-Cleek(Moncreifp). — I haveno doubt as to the judgment the Court ought to pronounce. If, indeed, I could hold that it was the law of this country that the Courts of the Church were analogous to inferior civil jurisdictions, I should think there was a great deal more difficulty in 1 Campbell v. Presbytery of Kintyi-e, Feb. 21, 1843, 5 D. 657 ; Lockhart v. Presbytery of Deer, July 5, 1851, 13 D. 1296 ; Paterson v. Presbytery of Dunbar, March 9, 1861, 23 D. 720. DECIDED IN THE COURT OF SESSION. 51 the case. Eor I think there is fair ground for maintaining that the complainer has been tried and sentenced by a competent Court under this charge. Nor do I think there is anything in the minute criticisms which have been suggested on this matter. The Presbytery charged this minister with indecent and scandalous familiarity with a woman, — that is to say, familiarity, with these qualities or aggravations. I have no doubt at all that under this charge, construed with all the strictness of an indictment in the Court of Justiciary, the Presbytery were entitled to accept a plea of scandalous familiarity, and to pass from the other and stronger qualifi- cation. This is what the Presbytery did. They departed from the aggra- vation of indecency, and after dealing with the minister accepted his confession of the restricted charge. I have as little doubt, if I were en- titled to judge of the rules of procedure in the Church Courts, that the form in which this was done was sufficiently regular. The Presbytery then pronounced a sentence of suspension, which directly affected his civil interests, as it compelled him to pay his stipend to an assistant, under Lord Belhaven's Act. Nobody appealed against that sentence ; and if I could sit here in review of the practice of Church Courts, I should greatly doubt the competency of the petition to the General Assembly at the in- terval of nearly six months, by persons who had neglected their proper remedy of an appeal. If, therefore, this were a case in which we were called upon to review the proceedings of an inferior .Court, I should have thought a strong case had been made out for our interference. But whatever inconsiderate dicta to that effect may have been thrown out, that is not the law of Scot- land. The jurisdiction of the Church Courts, as recognised judicatories of this realm, rests on a similar statutory foundation to that under which we administer justice within these walls. It is easy to suggest extrava- gant instances of excess of power, but quite as easy to do so in regard to the one jurisdiction as to the other. Within their spiritual province the Church Courts are as supreme as we are within the civil ; and as this is a matter relating to the discipline of the Church, and solely within the cognisance of the Church Courts, I think we have no power whatever to interfere. Lord Cowan. — I am of the same opinion. I do not enter into the question what was the precise character of the procedure before the Pres- bytery. I think there was a great deal in this, that it had reference to a minor charge, and it may be that the major charge, from which there was no acquittal, could with perfect justice and propriety be revived in the Church Courts. The more important question regards the mode in which the matter was brought before the Assembly. I find that the 52 LEADING ECCLESIASTICAL CASES Presbytery were made parties to the petition from the elders of the parish, and when asked for explanation as to their procedure in the case, made answer and left the matter in the hands of the Assembly. Then the As- sembly, as the supreme tribunal in ecclesiastical offences, whether attach- ing to the morality of ministers or to alleged heretical opinions, entered into the question, and pronounced a deliverance finding that the Presby- tery's proceedings were on the face of them irregular, contrary to the laws and practice of the Church, and altogether null and inept. Having come to that resolution, the Assembly proceeded, in the operative part of their judgment, which was necessary if they were to do anything in the matter at aU, to ordain that a new libel should be prepared and carried on by the Presbytery. I repudiate the idea of a Civil Court being entitled to overrule a deliverance of the Assembly in matters of that kind. I think the Assembly is supreme in questions legitimately and regularly before them, just as much as the Court of Justiciary. Both Courts stand upon statute. The Court of Session has no right to interfere with judgments of the Court of Justiciary, neither, do I apprehend, when the Assembly keeps within matters of ecclesiastical law and practice, has the Court of Session power to interfere with its deliverances. It may be that inci- dentally and necessarily the civil interests of the clergyman, or those sub- ject to the procedure, may be affected. Every judgment pronounced by the Assembly in reference to a fama against a clergyman has necessarily that effect, but because the civil interests of the man found guUty of an offence may be affected is that any reason for the CivD. Court interfering ? By no means. There being no question as to the matter being civil or ecclesiastical, but the procedure having regard to alleged offences cognis- able by the Church Courts, and to be followed on conviction by ecclesi- astical pains or penalties, the Church Courts had supreme and exclusive jurisdiction. On the whole matter, believing that this Court has no power to re- view the proceedings of the Assembly in this case, I refuse to consider whether the proceedings were regular or not, and confine myseK to saying, as the ground of judgment, that the Court has no jurisdiction. Lord Benholme. — It occurs to me that if there was any force in the complainer's pleading, it was that a party cannot be called upon twice to thole an assize for the same offence. Now, the maxim of not thoUng an assize twice is very well known in the criminal Court, where a verdict has been pronounced either of acqidttal or condemnation. A man who has been acquitted of an offence cannot be tried again for that offence ; a man who has been condemned and suffered punishment cannot be tried again for the same offence. But I find no such case here. The libel against Mr. DECIDED IN THE COURT OF SESSION. 53 Wight charged him with fornication, as also indecent and scandalous familiarity. There were two offences. He might be guilty of the one and not guilty of the other. It seems he made a certain qualified confession which did not exhaust either of the charges. But, in respect of that con- fession, the Presbytery declined to proceed further with the libel. They neither found him guilty nor not guilty of fornication. They did not go on with the libel, and, as the Assembly thought, they failed in their duty. How could it be said that a man tholed an assize twice when he had not been tried at all ] It may be said he had been tried already, or at least that he had confessed in a qualified manner to one of the charges ; but as to the main and graver charge he had never tholed an assize, or any- thing analagous to an assize. He pleaded not guilty to that charge ; and it had not been determined by the Presbytery whether he was or was not guilty. In these circumstances, the Assembly were of opinion, and I cannot say that I differ from them, that there had been a total depart- ure from the duty of the Presbytery in not going on with and exhaust- ing the libel ; and, accordingly, although there was no regular complaint or appeal, they might exercise their supereminent jurisdiction in finding that the Presbytery had proceeded irregularly in quashing the proceed- ings, and remitting to the Presbytery to exhaust the libei. Can it be said that this was irregular, or that there was any case here of a man be- ing tried twice ? I think it was merely securing that the man should be tried once. Therefore the strength of the case, as involving a double trial, fails entirely. If, however, the case had been more doubtful than it is upon the facts, I believe I would have concurred in the opinion that the Court has no jurisdiction to review the deliverance of the Assembly. I consider that, within their own department in the trial of ecclesiastical offences, the law of the land gives the Assembly an exclusive and final jurisdic- tion. I think the whole constitution of the Assembly stands upon sta- tute as well as the constitution of the Court of Session or the Court of Justiciary. The whole constitution of the Assembly appears to me to render them independent, within their own jurisdiction, of any interfer- ence at the instance of the Court of Session. They may probably do in- justice, but they do it under their own constitution, and the Court of Session has no right to interfere with what they do within their own jurisdiction. In the present case I cannot say that I see any injustice at all, or that they did more than redress what appeared to them, and what appears to me, a very irregular proceeding on the part of the Presbytery. On these grounds I am for adhering to the Lord Ordinary's judgment. 54 LEADING ECCLESIASTICAL CASES LoED Nbaves. — I am not prepared to say that there may not be pro- ceedings of the General Assembly which the Court of Session may inter- fere with. If the Assembly deposed a man for praying for the Queen, a proceeding so outrageously unconstitutional might require the Court to interfere. But when they are deahng with matters of mere procedure, in a matter purely ecclesiastical, I quite agree that the Court have no power. Ecclesiastical proceedings are in many respects anomalous. The pro- secutor and the Judge are the same. That has always been the ecclesi- astical law since there was any church constitution. The Inquisition was both prosecutor and Judge, and aU Church Courts are more or less in- quisitorial. They begin an accusation upon a,fama damosa, they decide whether there is a prima facie case for inquiry, and after that the party is libelled, and a great deal takes place that the Civil Court cannot judge of, and is not entitled to interfere with. I think nothing has been shown here on which the jurisdiction of the Court of Session can be sustained. But, at the same time, if I were to form any opinion on the matter, I should say that the case has completely broken down, in the way in which Lord Benholme has explained, upon the substance of it. It is not tholing an assize that a charge against a man has been abandoned by the prosecutors not proceeding with it. On the matter of the fornication charged, it neither came to a sentence of guilty nor not guilty. The accused pleaded not guilty, and there the matter stopped. As to the other charge of improper familiarity, I would quite concur with the Assembly. It appears that the law, whether ecclesiastical or of any other kind, has not fully reached the Presbytery of Dunkeld. Eor what was done ? A libel was brought forward containing two charges — the one, the graver charge, the other, a charge of indecent and scandalous fami- liarity by a minister of the gospel with a woman, to the disgrace of his sacred profession. The relevancy was objected to, and the Hbel was found relevant — that is to say, the charge of indecent and scandalous familiarity so stated was found relevant. The Presbytery then proceeded to commune with the accused. He denied the graver charge entirely ; he denied also the indecency, but he said he was willing to confess to scandalous familiarity. The word " scandalous," as often used in common conversation, is a vituperative epithet, but looked at strictly it merely means something that leads others to stumble. Now, whether a scanda- lous familiarity which was said to be innocent, and as to which anything of guilt was denied, formed a relevant charge, I cannot take upon me to say ; it certainly was not found so ; it was essentially a different charge that was found relevant and insisted in. An innocent familiarity with a DECIDED IN THE COUET OF SESSION. 55 woman that led to scandal or ofifenoe to some weak brother or sister was very different from an indecent and scandalous familiarity. But it was to the modified charge that the accused was willing to plead in a kind of way ; and the Presbytery took that plea, allowed the charge to be cut down to that, without a new interlocutor of relevancy, and so the whole case was got rid of, and sentence pronounced. When that result was noticed by any person interested in the parish, it seems to me to have been competent for the Assembly to go back and revive the procedure. I should have been disposed to concur in holding, if canon law was the same as civil law, that the Presbytery's sentence was null and void — that the plea on which it proceeded was null and void. A plea of part of the charge, denying the indecency, and merely pleading to the scandal, was what, in the criminal court, would have been regarded as a plea of not guilty. And yet upon such a plea the accused was sentenced, I think such a sentence was rightly set aside. With regard to tholing an assize, I could not think the complainer tholed an assize on either of the charges. If he had suffered he had done so by a null sentence, which by appeal he could have got rid of. In any aspect of the case it seems to me plain there are no grounds for interference on the part of the Court. ^ The following interlocutor was pronounced : — " Refuse the re- claiming note, and adhere to the judgment of the Lord Ordi- nary : Find additional expenses due ; and remit to the Auditor to tax and report, and to the Lord Ordinary to decern therefor.'' "W. Spink, S.S.C— "W. J. Menzibs, W.S.— Agents. May 16, 1874. The Eeverend the Presbytery of Lews, Appellants. — D.-F. Clarh — Zee. The Reverend Roderick Eraser, Respondent. — Watson — Mair. First Division. Church — Ecclesiastical Omirts — Witness — Warrant of Citation — Sheriff. — Held that it is competent for the Sheriff, as Judge Ordinary, on the application of a Presbytery or other recognised judicature of the Established Church of Scotland, to issue letters of first and second diligence against witnesses ne- glecting or refusing to attend, on the citation of the Church Court, to give evidence in any competent proceeding before it. Opinion (per Lord Ardmillan) that the aid of the Civil Court to enforce the attendance of witnesses may be given, and ought to be given, when craved and required, even in causes within churches not established. 56 LEADING ECCLESIASTICAL CASES The Presbytery of Lews having commenced proceedings by way of libel against the Eev. Eoderick Eraser, minister of the Parish of Uig, for various alleged acts of drunkenness, etc., resolved on 5th March 1874, to go to proof of the charges contained in the libel, and granted their warrant for summoning witnesses to compear before them within the session-house of the church of Stornoway upon the 18th day of March 1874, in the hour of cause, with continuation of days. Several of the witnesses cited did not appear on the day appointed for the proof, and the diet was accordingly adjourned to the 8th April fol- lowing. Meanwhile the Presbytery presented this petition to the Sheriff of Ross, Cromarty, and Sutherland, craving him to grant warrant to officers of Court to summon in common form the recusant witnesses, under the usual penalties in case of failure to appear, and, if necessary, to issue letters of second diligence. The Sheriff-substitute (Spittal) declined, as being a member of the Presbytery of Lews, and the Sheriff (Fordyce), on 4th April 1874, having heard parties and advised the cause, pronounced this interlocu- tor : — " Refuses to grant the warrant craved in said petition : Dis- misses the same as incompetent : Finds the petitioners liable in payment to the respondent of the expenses of process : AUows an account thereof to be given in," etc.^ ^ " Note. — The question raised in ttis petition, wMdi was represented by counsel or the petitioners as one of great importance in the conduct of ecclesiastical causes of the class referred to, was argued by the counsel for the parties with much ability and force. The substance of the argument for the Presbytery seemed to be, — " That the Courts of the Established Church of Scotland being recognised by the law of the realm, the Civil Courts, where the former were defective in power to carry out their own sentences, were bound, on being required, to aid the former in' making their sentences effectual. In oases, for instance, where a minister is prosecuted before the Presbytery on such charges as are contained in the libel above referred to, the Church Courts have not the power to compel witnesses to attend to give evidence in the Church Courts, though properly summoned by them to appear and do so. In these circumstances they were entitled to apply for and obtain the aid of the con- stituted civil tribunals to enforce the attendance of such contumacious witnesses by issuing letters of second diligence. " Thus the Sheriff, who is the representative of the Crown, the fountain of the law of the land, was as head of the law within his own jurisdiction, bound to ' look after every matter which regards the Crown's interest ' — (Ersk. i. 4, 6). The Sheriff was especially bound to give aid in cases of the sort referred to. Thus the Act 1690, c. 5, ' ratifying the Confession of Faith, and settling Presbyterian Church Govern- ment' for Scotland, adopts and confirms the Confession of Faith, and thereby makes it the law of the land. Now, one of the provisions of the Act 1690, c. 5, as set forth in the 23d (subordinate) chapter or division, which relates to the powers of the civil magistrate with regard to ecclesiastical matters, provides as follows : — (3) ' The civil magistrate may not assume to himself the administration of the word and sacraments, or the power of the keys of the Kingdom of Heaven, yet he hath authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered, and observed ; for the better effect- ing whereof he hath power to call synods, to be present at them, and to provide that, whatsoever is transacted in them, be according to the mind of God.' DECIDED IN THE COUET OF SESSION. 57 The petitioners appealed to the Court of Session. Argued for them : — A jurisdiction is conferred on the Preshytery, which they are bound to exercise, and which they cannot exercise in " It was therefore clear that a case such as the present falls within the scope and meaning of the above enactment, because it was aid which was asked by the peti- tioners from the civil power to enable the Presbytery to enforce proper discipline, which that Court could not effect of itself, nor could they do so unless the Civil Court granted the warrant which was asked, viz., for letters of second diligence to compel the witnesses to attend and give evidence in the Church Court. This was just one of the very things which the statute declares it was the duty of the civil magistrate to effect. " Then the Act 1693, c. 38, 'for settling the quiet and peace of the Church,' confirms the Act of 1690, c. 5, and provides thus ; — ' Lastly, their Majesties do hereby statute and ordain that the Lords of their Majesties' Privy Council, and all other magistrates, judges, and officers of justice, give all due assistance for making the sentences and censures of the Church and judicatories thereof to be obeyed, or otherwise effectual, as accords.' " In reference to these enactments it was maintained that the obtaining of the aid of the civil power in the matter here in question had been constantly observed from the date of the above Acts down to the present time. This was to be inferred from the Act of Assembly 1707, cap. 2, sec. 9, which sets forth, in regard to the citation of witnesses, that, ' if contumacious, application may be made to the civil magistrate that he may oblige them to appear. ' It was also to be inferred from the Treatise of Stewart of Pardovan (Edinburgh edition, 1773) on Church Forms of Pro- cess, book iv. 3, 13, in which the writer observes that, ' if witnesses refuse, after three citations, to compear, then they may be proceeded against as contumacious ; or, if judged needful, after the first or second citation is disobeyed, application should be made to the civil magistrate that he may oblige them to appear ' — (Act of Assembly 1707, c. 2, sec. 9). Again, the latest writer on Church Forms, the present Dr. Cook of Haddington (Forms of Procedure and Practice, edition 1870, page 20), repeats the statement of Stewart of Pardovan. Thus it was maintained that the Act of Assembly of 1 707, and the treatises referred to, together with practice conform, afforded the strongest presumption that the right of the Church Courts to obtain the aid of the civil power in the matter in question, and in the mode now craved, was indisputable from the dates of the Acts down to the present period. " In regard to the argument of the respondent, suffice it to say, in a general way, that it was a denial of the existence of any practice, decision, or authority in the law to support the plea maintained by the petitioners. " It may be admitted that the argument of the petitioners above sketched out has the merit of considerable plausibility, but, unfortunately for it, no decision of the Civil Courts in Scotland, as was admitted at the debate, could be pointed out shewing that the Judge Ordinary of the boimds was entitled to issue a warrant such as was here craved, and no evidence of practice, in conformity with the supposed principle, had been referred to save and except the case of Auchtergaven, where, however, no objection, as it was admitted, had been taken to the competency (date supposed to be 1869, 1870, or 1871), and what might be inferred from the vague statements of the two treatises referred to. Besides, so far as the Sheriff has discovered, there is no writer on the law of Scotland who states that such a principle obtains in the law, and none was referred to at the debate. The plea, therefore, of the petitioners, has no decision of the Civil Courts nor practice to support it ; nor is it warranted by the opinions or speculations even of any text writer on the law. " The want of decisions was attempted to be explained on the medium that the point was so clear iu favour of the Church, on the Acts of Parliament, that it was 58 LEADING ECCLESIASTICAL CASES cases like the present witliout the examination of witnesses. They are therefore entitled, where necessary, to apply to the Judge Ordi- nary for the usual warrant to compel the attendance of witnesses. never questioned. But that is not a satisfactory answer, for it is impossible to sup- pose that, if there had heen any practice, in conformity with the principle, during the 170 years elapsing since the passing of the Acts carrying out the principle of en- forcing by the civil power the requirements of the Church in the matter, questions of law arising thereon would not have occurred, and consequently traces of such practice and its legal results must have appeared on the records of the Civil Courts. Besides, even supposing that a unanimity of belief in the existence of the principle explains the want of decisions, how can it explain the fact that no writer on the law has men- tioned the principle as existing in the law and practice of Scotland ? The Sheriff, therefore, cannot help being of opinion that there is no substantial ground for assert- ing that such a principle exists in the law, as that a Sheriff is bound to grant a warrant for the citation of witnesses to appear and give evidence in an Ecclesiastical Court, and to issue letters of second diligence, to enforce their attendance there, there being no cause in the Sheriff-court, present or prospective, having reference to the ecclesiastical suit in which the witnesses are required to give evidence. " The only treatise iu which the Sheriff has found any reference to the matter here in question is Dickson on Evidence, — a book of unquestionably high character. In treating of the procedure for compelling witnesses to attend and depone (vol. ii. title 6th, sec. 1900, ed. 1855) the author says, — ' Church Courts (Hke arbiters) have no power to compel the attendance of witnesses, or the production of documents, 'in cases before them, their compulsitors being limited to ecclesiastical censures, which only affect persons within their communions. It is not settled whether the Courts of the Established Church differ from those of Dissenting Churches iu being able to obtain the aid of the civil force for this purpose. ' " Mr. Dickson states that 'the point was raised in a, recent case, where the presentee to a parish applied to the Sheriff to interdict certain persons from putting away or destroying a letter which he alleged contained statements injurious to him and which he expected to require in proceedings before the Presbytery as to his in- duction. The Court refused the application, on the ground that the petition did not set forth any proper title or interest in the document, and that the petitioner had not raised, or stated that he intended to raise, any civU action in which the document might be required '—(Barclay «. Gifford, 1843, 5 D. B. M. 1136). 'The decision, however, proceeded upon the opinions of two Judges to one, and, as it altered the interlocutor of the Lord Ordinary, it cannot be held as authoritative. Their Lord- ships' views were conflicting as to the competency of the Civil Courts aiding those of the Church in ecclesiastical investigations. Lord Justice-Clerk Hope's opinion was against such a power, which his Lordship observed was not matter of statutory juris- diction, and against which, he thought, there were reasons affecting the peace and well-being of society. Lord Meadowbank entertained an opposite opinion Lord Medwyn considered that, if the document in question were required in a process in a Church Court, the machinery of ecclesiastical censure should be first used • and that no other Court could interfere, unless there was a competent process, in which the document was required for evidence, and unless the custodier of it was either not sub ject to the orders of the Church or defied them to the defeating of justice Lord Cockbum's interloctutor impHes that, in his opinion, the Civil Courts have the nower in question.' i-^nci " The author adds, ' The point must be considered still open. ' " In a foot-note Mr. Dickson states that the then Procurator of the Church Mr Bell) mformed him that he was dii-eoted by the General Assembly of 1846 to trv thi, question on the first favourable opportunity. The Sheriff may add that at the de DECIDED IN THE COURT OF SESSION". 59 There is nothing in the constitution of the Church- Court to render the application incompetent. The Presbyteries of the Established Church owe there original constitution to the Acts 1592, c. 8, ratified by 1690, c. 7. They are indeed prohibited, by the Confession of Faith, c. 31, sec. 5, from interfering in any civil matter, except by way of humble petition, in cases extraordinary ; but this leaves it open to them to apply by peti- tion to the Judge Ordinary for any necessary warrant. Such right is recognised by the Act of Assembly 1707, c. 9, sec. 2, and in every book on the practice of the Church Courts. So far as ecclesiastical law is con- cerned, therefore, everything is in favour of the application. The competency of the application was long generally admitted, but a warrant having been refused in one of the Sheriff-courts in the year 1846 the General Assembly instructed the Procurator of the Church to take the earliest convenient opportunity of judicially raising the point. No such opportunity has occurred since that date up to the present time, the only reported case being one where the application was granted.^ With regard to the powers of the civil magistrate there can be no doubt. The Confession of Faith, c. 23, sec. 3, recognises the power of the civil magistrate to interfere for the suppression of abuses, and the maintenance of discipline ; while the Act 1693, c. 38, recognises the power of the Civil Courts to aid in making effectual the sentences and censures of the Church and her judicatories. Lastly, an admitted duty lies on the petitioners to prosecute this investigation on public grounds, and their proceedings may issue in a sentence of suspension against the respondent. Now, supposing wit- nesses for the prosecution fail to appear, the petitioners have no power in themselves to compel attendance ; is there then to be a necessary failure in the performance of the public duty incumbent upon them],? Again, suppose that witnesses for the defence refuse to appear, without the aid of the civil magistrate their attendance cannot be compelled, and if that aid is not to be rendered, either the prosecution mtfst be dropped, or the risk of grave injustice to the respondent be run. Such a result would render meaningless and nugatory the jurisdiction con- ferred on the Courts of the Established Church, and place them in a worse position even than a Court of arbitration proceeding on a mere tate reference was made to the Act 26 and 27 Vict. u. 47 (13th July 1863), which is entituled ' An Act for removing doubts as to the powers of the Courts of the Church of Scotland, and extending the powers of the said Courts ; ' and it was stated further that there was a clause in the MU giving the Church Courts such a power as is here contended for ; hut no such clause was inserted in the Act on it being passed. It was explained by respondent's counsel that this was owing to the clause iu the biU being strongly opposed in Parliament. " The Sheriff must own that, considering the want of any express and authorita- tive decision of the Supreme Court, establishing either the existence of the principle here contended for by the Presbytery, or that the Sheriff-court is a competent tribu- nal for dealing with it, and, moreover, having regard to the conflicting opinions in the case above referred to (Barclay v. Gifford), he feels he would not, as Judge Ordinary of the bounds, be justified in granting the warrant craved in the petition." ^ Presbytery of Dunkeld, August 23, 1870, 14 Journal of Jurisprudence, p. 632. 60 LEADING ECCLESIASTICAL CASES voluntary prorogated jurisdiction, whose right to apply to the Judge Ordinary for letters of first and second diligence has long been re- cognised.^ Argued for the respondent ; — ^The Act of Assembly founded on can be of no avail as an authority in this Court, unless followed by con- sistent practice, of which there is no evidence. The present case is one of purely ecclesiastical discipline, and the Civil Courts have always refused to interfere except where civil rights and obligations are con- cerned. In purely ecclesiastical matters there is no ground for distin- guishing the judicatories of the Established from those of any of the voluntary dissenting Churches. But further, supposing the civil magis- trate entitled to interfere for the purpose of compelling the attendance of witnesses, at least his aid could only be called in on a statement of the particular questions to be put. If so, he must be entitled to judge both of the relevancy and competency of such questions, and of any objections which the witness may have to answering them. What would be the practical result of this ? It would simply be to transfer the jurisdiction of the Ecclesiastical Court to the civil magistrate. Neither, therefore, on principle or authority, should this application be granted. At advising, — Lord President (Inglis). — ^I confesslwas surprised to see this question raised, for I never, during the whole course of my practice, entertained a doubt that the Judge Ordinary had the power of issuing such a warrant as is here craved, and was bound to exercise that power on good cause shewn. There seems to have existed a difference of opinion among the Sheriffs on the subject, of which I was not previously aware. But it does not pro- duce in my mind the least hesitation as to what our judgment should be. We are dealing with a Presbytery, an established judicature of the country, as much recognised by law as the Court of Session itselfl Its jurisdiction, indeed, differs widely from that of the Civil Courts, but it is just as much the creation of law as that of any other Court in the kingdom. The time at which the judicatures of the Church as they now exist were finally settled was the period of the Kevolution, and some of the statutes then passed, particularly the statute of WiUiam and Mary, 1693, cap. 38, "An Act for settling the quiet and peace of the Church," throw much light on the question. The last section of the Act 1693, cap. 38, enacts " that the Lords of their Majesties' Privy Council, and all other magistrates, judges, and of&cers of justice, give aU due assistance for making the sentences and censures of the Church and judicatures thereof to be obeyed, or otherwise effectual as accords." I want nothing 1 Dickson on Evid., sec. 1898 ; Wood on the Law of Libel, ed. 1851 ; Presbytery of Dumfries, July 6, 1818, F.C. ; Moodie, petitioner, May 18, 1819, F.C. ; Barclay v. Gifford, June 6, 1843, 5 D. 1136—15 Scot. Jur. 452. DECIDED IN THE COUET OF SESSION. 61 stronger or more comprehensiTe than that. "Whenever the Church Courts are unable of themselves to carry out their own orders made to explicate their own jurisdiction, the Civil Courts are hound to step in and give " all due assistance." Now, there is no duty more clear than that which obliges the individual citizen to obey the citation of a properly constituted Court to appear and give evidence. It was quite conceivable that the Church Courts might find some difficulty in compelling the attendance of a recusant witness. But the removal of that difficulty is just one of the things contemplated by the clause of the statute I have read. In illustration, I may add that the Act 10th Anne, cap. 10, which enacted that no civil pain, or forfeiture, or disability should follow sentence of excommunication by the Church, 'also expressly prohibited all civil magistrates from giving aid to "compel any person or persons to appear when summoned, or to give obedience to any such sentence when pronounced, any law or custom to the contrary notwithstanding,'' shewing thereby that such attendance might, according to the law and practice of the day, have been enforced through the aid of the Civil Courts. The question that we have to determine does not touch any other religious community whatsoever. I give no opinion as to the position of the judicatures of Voluntary Churches in this matter. We are here dealing with one of the regularly constituted judicatures of the realm. And ia supplying the defect which it labours under, we have, I think, the sanction both of statute and of established custom. LoED Deas. — My opinion is the same with that of your Lordship. I am surprised that the Sherift should have refused this application on the ground that he had no jurisdiction to grant it. There might have been other grounds for its refusal, but we are here dealing only with the question of jurisdiction or competency, and on that point I have no doubt whatever. I have always understood that the Judge Ordinary, when called upon, would grant such a warrant as is here craved, unless in the circum- stances there was some good reason to the contrary. As your" Lordship has remarked, the petitioners form one of the established judicatories of the land, with certain judicial duties to perform. The case in dependence before them is a libel against a clergyman for immorality, on grounds which, if found proved, may infer suspension or deposition from his office. The jurisdiction of the petitioners to try that Hbel is undoubted. It is a trite maxim that jurisdiction implies all the powers necessary to explicate that jurisdiction. In so far as the Presbytery, as a Church Court, cannot directly compel the attendance of witnesses in a ease of this kind, they are entitled to do it indirectly by the aid of the Civil Court. They have a judicial duty to perform which they cannot perform without such aid, and 62 LEADING ECCLESIASTICAL CASES that, to my mind, is of itself conclusive of the question. It is said they ought first to exhaust their own remedies by resorting to the censures of the Church. That, however, is conceding the question of principle, and leaving only a question whether procedure which, in the present day, would be a useless waste of time, is to be held imperative. In my opinion it is not. The censures of the Church to such an efiect have lost their terrors even to members of the Church, and to those who are not members they never had any. Such a course of procedure is altogether obsolete, and to resort to it now would only provoke ridicule. If the efiScacious fiat of the civil power would be competent at last, it cannot be incompetent at first, and it can only be a question of discretion whether it should be delayed. Such warrants, I am persuaded, have been granted in practice, and no precedent has been cited for holding them illegal. The only reason why they have not been more frequent has been that the citations of the Presbytery have generally been obeyed, because it was quite understood that the Civil Court would, if necessary, compel obedi- ence. In my own practice in Church Courts I never knew of this being doubted. The case of Barclay v. Gifford-"^ was quite different from the present. The question there was. Whether the aid of the Civil Court could be given where there was no judicial process in dependence before the Church Court; and to 'that the whole observations of the Lord Justice-Clerk were directed. Here there is a competent process depending before a competent Court. We have nothing to do here with the case of Voluntary Churches. There may or may not be grounds for interfering in aid of .their procedure ■ under their voluntary contracts, founded on the analogy of what is done in aid of the voluntary contract of arbitration. But that is quite a dif- ferent question from what occurs here. The Courts of the Church of Scotland are established by Act of Parliament. Their jurisdiction is derived from the supreme authority which alone can confer proper juris- diction, and, that being so, I have no doubt of the competency of aiding them in the way here sought for in explicating their jurisdiction. Lord Aedmillan. — ^The question before us has arisen out of the pro- cedure in a case of discipline in a Presbytery of the Established Church. But no question of discipline, and no properly ecclesiastical question, is here presented for decision. The enforcement of witness-bearing — not the enforcement of Church discipline — is the immediate end for promoting which the interposition of the Court is craved by the Presbytery. I agree in the view quoted to us, expressed by Mr. Sheriff Barclay ; ^ and I have 1 Supra, ' Presbtery ofDnnkeld, supra. DECIDED IN THE COURT OF SESSION. 63 hitherto been under the impression that the practice has been as he states it. Indeed I have never doubted it. Witness-bearing is a debt to jus- tice ; it is a duty — a moral duty — a citizen's duty — it is not an ecclesias- tical act ; and its enforcement by a Civil Court is appropriate and legiti- mate. Viewing the present question as limited to the claim for aid by or with concurrence of a Presbytery of the Established Church, I do not doubt that this Court can grant, and ought to grant, the aid which is demanded. The recognised relation between the Established Church and the State excludes all doubt on the point. But I am further of opinion, and on broader ground, that the aid of the Civil Court to enforce the attendance of witnesses may be given, and ought to be given, when craved and required, even in causes within Churches not established — that is, withia a voluntarily constituted juris- diction. This is well illustrated by the case of arbitration. The inter- position by the Civil Court to compel a witness to attend and depone before an arbiter has been frequently exercised, and authoritatively recog- nised. On this point there are decisions from time to time between 1690 and 1860, and the practice has been accordingly. On both grounds I concur in recalling the interlocutor of the Sheriff, and remitting to him to interpone his authority to enforce the attendance of witnesses. Lord Jerviswoode concurred. This interlocutor was pronounced : — " The Lords having heard counsel for the parties on the appeal and proceedings, recall the interlocutor of the Sheriff, dated lith AprU 1874, and remit to him to grant the warrant prayed for in the petition, and decern." Mbnzibs & Coventry, "W.S.— "W. R. Skinneb, S.S.C. — Agents. December 23, 1859. The Rev. John M'Millan, Pursuer. — Macfa/rlane — Fraser — Grant. The Genekal Assembly of the Free Church of Scotland, Defenders. — Ld.-Adv. Monereiff—Yowng — A. B. Clark First Division. — Lord Benholme. Church — Dissenters — Society — JwrisAietion — Title to Sue — Reduction — Satisfying the Production.— A minister belonging to the " Free Church " having been suspended from office by the "General Assembly" of that body (as alleged irregularly), applied to the Lord Ordinary on the Bills for interdict, 64 LEADING ECCLESIASTICAT. CASES in consequence of which application he was summarily deposed, as he averred, in absence, and without being allowed to be heard. He brought actions of reduction of both sentences, and of damages against the " General Assembly," and also against certain individual members of it, alleging, inter alia, that the sentence of deposition was " a gross and flagrant violation of the contract, or compact and rules of the association, under which the pursuer held his office and emoluments as Free Church minister ;" and that by, and in consequence of, the defenders' proceedings, he had been seriously injured in his character, feelings, and patrimonial interests, and had been also deprived of his income, and that they were actuated by malice and ill-wiU, and without reasonable cause. The defenders pleaded that the pursuer had no title to sue ; that the sentences complained of being pronounced in a matter of Church discipline, by an association of Christians tolerated by law, the Civil Court could not in- terfere ; that, according to the contract or constitution of the association, the pursuer was bound to submit to the exclusive authority of their " General Assembly," and that the defenders had acted strictly within the line of their duty. Held (altering judgment of Lord Benholme), that a voluntary associa- tion of Christians had no jurisdiction in the proper legal sense of that term, and that it was necessary to examine the contract in order to see whether by it the pursuer had precluded himself from seeking redress, and that it was also necessary to examine the sentence in order to see whether it fell under the contract : — ^therefore defences, as against satisfying the production, The summons in this action of reduction and damages was directed against the " General Assembly of the religious denomination calling themselves the Free Church of Scotland," and the Eev. Dr. Alexander Beith, Stirling, their moderator, and the Eev. Patrick Clason, D.D., and the Eev. Sir Henry Wellwood MoncreiiF, Baronet, both residing in Edinburgh, their principal clerks, as representing the General Assembly, "at the instance of the Eev. John M'Millan, minister of the Free Church, Cardross, and residing there, pursuer, to whose great hurt and prejudice a pretended judgment or suspension after mentioned, suspend- ing the said Eev. John M'Millan from the office of the ministry sine die, and declaring the charge of his congregation at Cardross vacant ; and at the same time declaring that he cannot be restored to the office of the ministry except by the said General Assembly, was agreed toj" "... the said defenders bringing with them and producing the said pretended judgment, and whole grounds and warrants upon which the said pretended judgment or suspension proceeded, all to be seen and considered by our said Lords, to hear and see" the same reduced, " and the said Eev. John M'Millan, pursuer, reponed and restored against the same in integrum, for the reasons and causes set forth in the condescend- ence and note of pleas in law hereunto annexed : Therefore," etc. — [Here followed the conclusion for reduction of the judgment, in the usual form.] — "Farther, the said defenders ought and should be de- cerned and ordained, by decree foresaid, to make payment to the pur- suer of the sum of £500 sterling, in name of reparation and damages, and as a solatium to him in the premises." The pursuer's statement was as follows : — " (Cond. Art. 1 .) The DECIDED IN THE COURT OF SESSION. 65 pursuer is a minister of the body of Christians called the Free Church of Scotland, at Cardross, and clerk to the Synod of Glasgow and Ayr. He was ordained minister in the Church of Scotland,Tof the parish of Ballachulish, in Inverness-shire, in 1828, and continued there till the Disruption in the Church of Scotland in 1843, when a number of ministers seceded from that church, and, along with the laity who adhered to them, called themselves the Free Church of Scotland. The pursuer seceded from the Established Church in the year 1843, and became shortly thereafter minister of the congregation of the Free Church of Cardross. He was appointed cleri to the Synod of Glasgow and Ayr in the year 1848. (Cond. Art. 2.) His emoluments from these situations amount in cumulo to or about £214 per annum, and are derived from the following sources : — 1st. From the Sustentation Fund of the Free Church, including £7 of annual payment to Widows' Fund . £138 2d. Manse, valued under Lands Valuation Act . 25 3d. Clerkship to the Free Synod of Glasgow and Ayr . . . . . 40 4th. Allowance on sacramental occasions from Congregational Funds, after deduction of expenses ..... 5th. Allowance from the Supplementary Fund of the Free Church to disruption ministers not having a supplement from their congrega- tion to the amount of £10 . . 5 6 £214 (Cond. Art. 3.) The Free Church of Scotland is a body of dissen- ters from the Established Church. According to the rules of the association, and the contract under and in virtue of which they are bound, its affairs are managed by a certain number of ministers and laymen, who are called Presbyteries, whose decisions may be appealed against to a larger number of ministers and laymen called Synods, and whose decisions, in like manner, may be appealed against to a still larger number of ministers and laymen, called the General Assembly of the Free Church, which usually meets once a year in Edinburgh. (Cond. Art. 4.) According to the contract or rules of the association, if any charge is brought against a minister, it must be done in the shape of a libel, containing the charge distinctly and specifically set forth. This libel must be presented to, and may be raised by, the Presbytery. In the disposal thereof the Presbytery are bound by the rules and contract of the association to hear the person accused, and are further bound to allow him to lead evidence in his defence, and they are not ■ entitled to pronounce any deliverance on said libel without such hearing, and without allowing such evidence to be led if tendered. Further, by the said rules and contract, the person accused, or the prosecutor of said libel, or any member of the Presbytery, may appeal or complain of the deliverance of the Presbytery thereon to the next Synod within 66 LEADING ECCLESIASTICAL CASES whose bounds the said Presbytery is situated. The Synod, on such review being taken, is entitled to reverse or alter the deliverance pf the Presbytery to the extent of, but no further than, what is craved in the appeal or complaint. They are also bound before deciding to hear parties. The deliverance of the Synod may thereafter be carried to the General Assembly by appeal or complaint, and the General Assembly, according to the said rules and contract, are entitled to deal with the resolution or deliverance of the Synod, either by affirming or altering, only in so far as may be brought before them by the appeal or complaint. Such parts of the Synod's deliverance as are not appealed or complained against are final and conclusive, and cannot competently be considered by the General Assembly, and any deliverance by the General Assembly varying or altering the deliverance of the Synod in any part which has not been brought before the General Assembly by appeal or complaint, is incompetent, illegal and inept, contrary to the contract and rules and regulations of the body or association called the Free Church of Scotland. In so far as the Synod's deliverance has not been brought under the review of the succeeding General Assembly, it is iinal and conclusive. (Oond. Art. 5.) On or about the 1 7th February 1858, a libel was framed by and at the instance of the Free Church Presbytery of Dumbarton against the pursuer, and duly served upon him, containing the three following charges or counts, which are false, defamatory, and injurious : — 1st. ' In the month of April, or May immediately following, or March immediately preceding, 1857, you entered the workshop of Wilham Smith, blacksmith, Cardross, in a state of intoxication, or so much the worse of drink as to attract the attention of the said William Smith and others then and there present ; and, in so far as, 2d. On the 25th day of December 1857, and between the hours of three and six o'clock in the afternoon, you did leave your own house, after partaking of ardent spirits, and proceed for a mile along the high road westward, and after passing a short distance from your own gate, did, by your unsteady and staggering walk, a flushed face, a breath smelling of whisky, and indistinctness of speech, attract the attention both of those who came near you and of those who saw you at the distance of the breadth of the road, impressing them with the deUberate conviction that you were the worse of drink. And, in so far as, 3d. That in this state you did enter the cottage of John Manson, and remain with the door shut for a protracted period with the wife of the said John Manson, she being alone, and there not only make proposals to kiss her, but did also lay hold on her violently and immodestly, and dragged her towards the bed to accomplish your criminal object, so that she cried out and fled from your grasp, and took refuge in a neighbouring house, where she complained of your conduct.' (Cond. Art. 6.) A proof was taken by the said Presbytery in reference to said libel, and on the 1st April the said Presbytery pronounced the following deliverance thereon : — ' The Court accordingly find, and do hereby find, the judgment on the proof to be as follows, — namely, the first count not proven ; the second proven, with the exception of indis- tinctness of speech ; the third proven, with the exception of the follow- DECIDED IN THE COUET OP SESSION. 67 ing words, namely, 'not only make proposals to kiss her, but' 'and immodestly, and dragged her towards the bed to accomplish your criminal object,' ' and fled from your grasp.' They found thus the first count not proven; the second, which merely declared that the appearance of the pursuer had impressed certain parties with the conviction that he was the worse of drink, proven ; and the third proven partially, — that is to say, with the exception of the above phrases or sentences, which constituted in point of fact the gravamen of the charge in that count. (Cond. Art. 7.) This modified finding of the Presbytery of Dumbarton, had it been acquiesced in by the pursuer, would (as there was no complaint or appeal by the minority of the Presbytery to the Synod) have brought the matter to an end, and would, in terms of the regulations and practice of the association, have warranted nothing more than a censure or admonition. (Cond. Art. 8.) Against the foresaid resolution or deliverance of the Presbytery, so far only as unfavourable to himself, the pursuer appealed to the Free Synod of Glasgow and Ayr. The members of the Presbytery did not complain or appeal, and the deliverance was final, except so far as the pursuer appealed. He appealed to the Synod. [Here followed the reasons of appeal.] The appeal, therefore, so far as regards the first count, was in respect the finding had been 'not proven' and 'not guilty;' as regards the second, in respect it had been found, with the exception of indis- tinctness of speeph proven ; and so far as the^ third count was concerned, only against such portions of that count as were found proven by the Presbytery. The remaining portions of the Presbytery's findings be- came, as aforesaid, final and conclusive, and not subject to be altered or varied by the Sjmod or General Assembly, to the pursuer's prejudice or hurt. (Cond. Art. 9.) Of this date (April 14, 1858), the said Free Synod of Glasgow and Ayr sustained the foresaid appeal of the pursuer in the following terms : — ' The Synod did and do hereby sustain the protest and appeal, discharge the first count of the libel, and find the second and third counts thereof not proven.' (Cond. Art. 10.) From this deliverance of the Synod upon the portions of the finding of the Presbytery of Dumbarton unfavourable to the pursuer, and brought under review of the Synod by him, an appeal was taken by the said Presbytery, and a complaint by the Eeverend Dr. Buchanan and others to the General Assembly of the Free Church, which appeal and complaint, so far as competently made, brought under review of the General Assembly the foresaid portions of the finding of the Pres- bytery unfavourable to the pursuer, which had been before the Synod, and only these portions. (Cond. Art. 11.) Of this date (May 24, 1858), the General Assembly of the Free Church took up the foresaid protest and appeal, and dissent and complaint, and after hearing parties thereupon, and without any previous intimation to the pursuer of their intention, illegally, incompetently, and unwarrantably opened up the whole case ah initio, and upon the motion of the Eeverend Dr. Candlish, seconded by Mr. George Dalziel, W.S., came to the following resolu- tion : — ' That on the first count of the minor proposition of the libel the Assembly allow the judgment of the Synod to stand ; on the second 68 . LEADING ECCLESIASTICAL CASES count of the minor proposition of the libel, sustain the dissent and complaint and appeal, reverse the judgment of the Synod, and affirm the judgment of the Presbytery, finding the charge in the said count proven ; and on the third count of the minor proposition of the libel, sustain the dissent and complaint, reverse the judgment of the Synod, and find the whole of the charge in said count, as framed originally in the libel, proven.' This procedure and decision was utterly incompetent and illegal on the grounds and for the reasons above stated and referred to, and the Assembly in pronouncing the said decision further acted incompetently, illegally, and unwarrantably, and contrary to the rules and practice of the body or association called the Free Church, and the rules governing the Presbyteries, Synods, and Assemblies, inasmuch as it did not first reverse the finding of the Presbytery of Dumbarton on the third count of the minor proposition of the libel. That finding stUl stands, along with the contradictory decision of the General Assembly. (Cond. Art. 12.) Thereafter, the Assembly, on the motion of the Reverend Dr. Candlish, came to the following illegal, incompetent, and unwarrantable resolution : — ' That Mr. M'MUlan be suspended from the office of the ministry sine die, and be loosed from his charge. Therefore the Assembly hereby suspend Mr. John M'MUlan, minister at Cardross, from the office of the ministry sine die, and declare the charge of the congregation of Cardross vacant. The Assembly at the same time declare that Mr. MMillan cannot be restored to the office of the ministry except by the General Assembly.' (Cond. Art. 13.) The said General Assembly, in pronoxmcing this decision,^acted illegally, incompetently, and unwarrantably, and in violation of their own rules and practice, and the rules and practice of the Free Church, and of the contract under and by virtue of which the pursuer and the defenders were bound. The Reverend Dr. Candlish, in moving the resolution or deliverance as aforesaid, expressly called upon the Assembly to deal with the case upon the broad grounds of equity and Christian principle, as it would be a disastrous thing, he said, if they were hindered by any technicality or legal objection from so doing. The illegality of the proceeding was thus openly and deliberately avowed by the mover of the resolution or deliverance upon the proof. The same illegal course of procedure was also urged and insisted upon by other members of the Assembly at the time, and, in particular, by Mr. George Dalziel, W.S., who seconded the motion of Dr. Candlish, and who told the Assembly that if this (the pursuer's case) had been an appeal from the Sheriff-court to the Court of Session, the latter tribunal would have taken the whole proof into consideration, and disposed of the case as a whole. On the other hand, other members of Assembly opposed this illegal course of procedure. . . . (Cond. Art. 14.) The resolution of the Assembly thus proceeded upon all the counts of the foresaid libel, including the false and defamatory and injurious matter in the third count, which was final and unreviewable, which formed no part of the matter appealed by the pursuer (the only appellant or complainant) to the Synod of Glasgow and Ayr, anent which no appeal or complaint could competently be taken to the General Assembly, which was not DECIDED IN THE COURT OF SESSION. 69 legally before that Assembly, and upon which the pursuer had no op- portunity of defending himself, even had he been willing to do so in that Assembly. (Cond. Art. 15.) The statements contained in the said third count of the libel, as it originally stood, and thus incompe- tently, illegally, and unwarrantably reintroduced by the General Assembly, while the pursuer had no opportunity to defend himself or refute them, were of so grave a nature that they gave an aspect to the case which has led to the said illegal and unwarrantable resolution, deliverance, and suspension of the pursuer from his office of a minister of the Free Church, to his great loss, [injury, and damage. (Cond. Arb. 16.) By and through the said resolution, deliverance, and suspen- sion, the General Assembly, in violation of the rules of the Free Church, and of the contract between the pursuer and the defenders, inflicted a great wrong, and perpetrated a gross and flagrant injustice upon the pursuer, which injures him not only in his feelings, character, and reputation, but is also highly prejudicial to him in his patrimonial interest. He has been thereby most wrongously and unjustly denuded of the income derivable from the sources specified in Article 2, and left in his old age, and after a service without reproach in the ministry for upwards of thirty years, with no means of livelihood, with his character severely injured, and with no prospect of restoration to either, even although this could be of any avail at his advanced period of life." The defenders admitted the consequences in this article said to flow from their proceedings (see opinion of Lord Deas, inf. p. 11 1), denying the article quoad ultra. M'MiUan also brought another action against the same parties, and also against Dr. Beith, Dr. Candlish, and Dr. Bannerman, as members of the Assembly, and as individuals, founded oh the subsequent pro- cedure of the Assembly of the Free Church in deposing him, alleging — that public intimation of the parish of Cardross being vacant had been ordered to be made from the pulpit. " (Cond 9.) Before this in- timation had been given, and in order to protect himself against the civU consequences of the said illegal proceedings, the pursuer, on 28th May 1858, applied to the Court of Session for suspension and interdict against the said General Assembly. In doing so he merely exercised the undoubted right possessed by all the lieges, and he in no respect acted irregularly or illegally, or contrary to the rules and constitution of the said association." As to these rules he averred, — " (Cond. 5.) According to the contract or rules of the said associa- tion, or, in other words, the constitution of the Free Church, when a charge is brought against one of its ministers, this must be done by means of a formal document or libel, setting forth distinctly and specifically the charge ; the party charged must be cited, upon inducice or notice of ten free days, to appear and answer to the libel or charge ; and before a deliverance can be pronounced thereon, the libel must be found relevant, and if found relevant, the party charged or accused must either admit the allegations made against him, or they must be proved, and without such admission or proof the penalty concluded for in the libel cannot, by the rules and practice of the 70 LEADING ECCLESIASTICAL CASES association, be imposed. (Cond. 6.) According to the constitution or contract and rules, as well as the practice of the said association, the foresaid inducice are given in order to a due hearing of, and defence by, the party accused, and no party can be legally proceeded against for any alleged offence without being allowed an opportunity of being heard, and of defending himseE" He averred further "(Cond. 10.) About twelve o'clock on the night of the 28th May, and after the pursuer was in bed, he was awakened by three men, who demanded to see him, and by whom a document was handed to him, purporting to come from or proceed under the authority of the said General Assembly of the Free Church, enjoining him to appear before that Assembly on the 1st June 1858, being within two days thereafter. The said document bore, inter alia, that the said Assembly, ' having heard the said note' (being the pursuer's note of suspension and interdict above referred to) ' now read, and finding that it purports to be, on the part of Mr. M'MiUan, an application to the Civil Court to suspend the sentence pronounced in his case on the morning of the 25 th May, and to interdict the execution of the same, resolve to cite Mr. M'Millan to appear at their bar on Tuesday, the 1st day of June next, at twelve o'clock noon, to answer for his conduct thereanent.' This document is produced. (Cond. 11.) On the said 1st of June the pursuer accordingly appeared before the said General Assembly of the Free Church, and he was then called upon by the moderator, the defender the Rev. Dr. Alexander Beith, to state whether or not he had authorised the application referred to, to the Civil Court. (Cond. 12.) In consequence of, and in compliance with this call, the pursuer was beginning to read the explanation and protest, a copy of which is produced, when he was interrupted by the defender Dr. Candlish, who moved that he should not be allowed to give any explanation what- ever, but that his answer should be restricted to a categorical ' yea ' or 'nay;' and although the pursuer claimed and insisted on his right to be heard, he was, in consequence of the motion of the defender Dr. Candlish, which was carried, peremptorily commanded by the moderator to restrict his answer to ' yea ' or ' nay,' as no explanation, or anything but a bare aflSirmative or negative answer would be taken or heard from him. (Cond. 13). While the pursuer was thus desirous of stating how matters really stood, and of explaining and shewing that nothing was further from his intention than to do any- thing illegal or irregular, or unbecoming his position, or derogatory to the just rights and interests of the Free Church, or inconsistent with the rules of the association, he was prevented from doing so, and he was coerced by the defenders into simply saying ' yea,' in reply to the call made upon him, as mentioned in last article. (Cond. 14.) He was then by the defenders instantly ordered to leave the bar ; and finding, from the noise and clamour about him, made by the said Assembly, and by the defenders, that any further eff'ort to obtain a hearing was useless, he retired from the Assembly. (Cond. 15.) Thereupon, with- out any notice or warning whatever to the pursuer of their design, and in the absence of the pursuer, and of any one to represent him, DECIDED IN THE COUET OF SESSION. 71 the meeting calling itself the General Assembly of the Free Church, on the motion of the defender Dr. Candlish, seconded by the defender Dr. Bannerman, resolved that, in respect of the reply so given, Mr. John M'Millan be deposed from the office of the holy ministry, and this was accordingly done. This is the sentence, deposition, or pro- ceeding complained of, and such are the circumstances in which it was passed or agreed to. The pursuer has also, in consequence of said deposition, been removed from his office of clerk to the Free Synod of Glasgow and Ayr. (Cond. 16.) The pursuer was not, prior or in reference to the sentence, deposition, or proceeding complained of, and as is required by the constitution, rules, and practice of the association, served with a libel. He was not only not heard, but was prevented from stating a single word in explanation of his conduct or in his defence, and nothing was admitted or proved against him. (Cond. 17.) The only thing alleged against the pursuer as the ground or reason assigned for the sentence, deposition, or proceeding complained of was, that he made the application by note of suspension and interdict, as before mentioned, to the Court of Session. (Cond. 18.) The sentence, deposition, or proceeding complained of, was altogether lawless, irregular, and unjust. It was a gross and flagrant violation of the contract or compact and rules of the association under which the pursuer held his office and emoluments as Free Church minister at Cardross. The said meeting or Assembly, and the defenders, as well as all the parties by whom the said decision, deposition, or proceeding was passed or agreed to, acted entirely beyond their competency and powers ; and in promoting and bringing it about, as above set forth, the defenders, the Eev. Drs. Beith, Candlish, and Bannerman, have been actuated by malice and ill-will to the pursuer, and their conduct was altogether 'without probable or reasonable cause. (Cond. 19.) By and in conse- quence of the decision, sentence, deposition, or proceedings complained of,'the pursuer has been deprived in his old age, and after a ministry without reproach of above thirty years' duration, of his only means of obtaining a livelihood, and he has been otherwise greatly injured in his character, credit, feelings, and prospects." The conclusions of this second action were for production and reduction of the sentence of deposition, and that " the defenders, the said Eev. Dr. Alexander Beith, the Eev. Dr. Eobert Smith Candlish, and the Eev. Dr. James Bannerman, ought and should be decerned and ordained, by decree foresaid, conjunctly and severally, or severally and respectively, as may be determined in the course of the process, to make payment to the pursuer of the sum of £3000 sterling, in name of reparation and damages, and as a solatium to him in the premises." The defenders' statements were as follows, the first seven articles applying to both actions : — " (Stat. 1.) Prior to the Disruption in 1843 the pursuer was a minister of the Established Church. On the occur- rence of that event he adhered to the Free Church. He was after- wards, in conformity with the standards thereof, duly inducted minister of the Free Church of Cardross, which is within the bounds of the 72 LEADING ECCLESIASTICAL OASES Presbytery of Dumbarton. (Stat. 2.) It is part of the constitution of the Free Church that through its courts it has and shall have exclusive jurisdiction in all questions of discipline, or affecting the propriety of the conduct of its ministers and other office-bearers, a,nd in all matters spiritual, including all matters relating to their admission to office, as well as to their suspension and deprivation therefrom ; that the judicatories of the church shall be the exclusive interpreters of its laws ; that the office-bearers and members of the church shall m all such questions, and in all matters spiritual, including as aforesaid, abide by and submit to the sentences pronounced by the Church Courts, and that they shall in no case and in no circumstances apply to _ the Civil Courts for a review or suspension of such sentences. It is a flagrant breach of the constitution, subversive of the church, and in direct contempt of her Courts, for any office-bearer or member of the church to make such an application to the Civil Courts. By becoming a minister of the Free Church, and so long as he continued to be such, the pursuer voluntarily submitted himself in all such matters to the exclusive jurisdiction of the courts of that body, and undertook to abide by their decision as aforesaid; and as a minister of the Free Church he contracted and vowed that he would submit to the discipline and government of the said church, and not endeavour, directly .or indirectly, the prejudice or subversion of the same, by application to the civil power or otherwise. (Stat. 3.) The Free Church of Scotland originated in 1843, by the separation from the Establishment of a large body of the ministers and members thereof who adhered to the Free Church. They renounced the benefits of the Establishment, but they adhered to and recognised the whole standards and acts of the Estab- lished Church, except in so far as these are modified by acts of the General Assembly of the Free Church. They separated from the Establishment on the ground of the Civil Courts interfering with, and encroaching on, as they believed, the jurisdiction of the Church in matters spiritual. In consequence of that interference and encroach- ment, the Assembly of the Established Church, in May 1842, resolved and agreed upon a claim, declaration, and protest, for the purpose, inter alia, of stating the nature and extent of the jurisdiction which the Church claimed to exercise over its members, and the protest of the Church against the encroachments of the Civil Courts. The said claim, declaration, and protest is referred to for its terms, and here held as repeated brevitatis causa. The Act of Assembly 1852, a copy of which is produced and referred to, and is here held as repeated brevitatis causa, is referred to, and adopted in the said claim of right, declaration, and protest. (Stat. 4.) The Legislature having refused to consider this claim of right, and to adopt measures for restraining the Civil Courts from interfering with the sentences of the judicatories of the Church, those ministers and elders, commissioners to the General Assembly of the Established Church convened for the session of- 18 43, who adhered to and insisted upon the said claim of right, laid upon the table of the General Assembly of the Established Church a protest, signed by them, and including, inter alios, the pursuer, and separated themselves from DECIDED IN THE COURT OF SESSION. 73 the Establishment upon the ground therein stated, and, inter alia, for the purpose of securing and maintaining to the Free Church the exclusive jurisdiction over its members in all matters spiritual, includ- ing the admission, suspension, and deprivation of ministers. The protest is referred to for its terms, and here held as repeated brevitatis causa. (Stat. 5.) Thereafter, an Act of Separation and Deed of Demis- sion vfas signed by those ministers who adhered to the Free Church, including, inter alios, the pursuer. The deed is signed 23d May, and recorded in the Books of Council and Session, 8th June 1843. The deed set forth that the ministers and elders subscribing the said protest, together with the ministers and elders adhering to said protest, did, in prosecution of the said protest and the said claim of right, and on the grounds therein set forth, ' And hereby do, for themselves, and all who adhere to them, separate from and abandon the present subsisting Ecclesiastical Establishment in Scotland, and did, and hereby do, abdicate and renounce the status and privileges derived to them, or any of them, as parochial ministers or elders, from the said Establish- ment, through its connection with the State, and all rights and emolu- ments pertaining to them, or any of them, by virtue thereof : Declaring, that they hereby in no degree abandon or impair the rights belonging to them as ministers of Christ's gospel, and pastors and elders of particular congregations, to perform freely and fully the functions of their oflBces towards their respective congregations, or such portions thereof as may adhere to them ; and that they are and shall be free to exercise government and discipline in their several judicatories, separate from the Establishment, according to God's Word, and the constitution and standards of the Church of Scotland, as heretofore understood : and that henceforth they are not, and shall not be, subject in any respect to the ecclesiastical judicatories established in Scotland by law.' This Act of Separation and Deed of Demission is referred to for its terms, and held as repeated brevitatis causa. (Stat. 6.) After the induction of the pursuer to the Free Church at Cardross, he signed the following formula : — ' I do hereby declare that I do sincerely own and believe the whole doctrine contained in the Confession of Faith, approven by former General Assemblies of this Church, to be the truths of God ; and I do own the same as the confession of my faith ; as likewise I do own the purity of worship presently authorised and practised in the Free Church of Scotland, and also the Presbyterian government and discipline thereof ;_ which doctrine, worship, and government, I am persuaded, are founded on the Word of God, and agreeable thereto ; I also approve of the general principles respecting the jurisdiction of the Church, and her subjection to Christ as her only Head, which are contained in the claim of right and in the protest referred to in the questions already put to me ; and I promise that, through.the grace of God, I shall firmly and constantly adhere to the same, and to the utmost of my power shall, in my station, assert and maintain, and defend the said doctrine, worship, and discipline, and government of this Church, by kirk-sessions, presbyteries, provincial synods, and general assemblies, together with the liberty and exclusive 74 LEADING ECCLESIASTICAL CASES jurisdiction thereof; and that I shall in my practice conform myself to the said worship, and submit to the said discipline and government and exclusive jurisdiction, and not endeavour, directly or indirectly, the prejudice or the subversion of the same ; and I promise that I shall follow no divisive course from the doctrine, worship, discipline, government, and exclusive jurisdiction of this Church, renouncing all doctrines, tenets, and opinions whatsoever, contrary to or inconsistent with the said doctrine, worship, discipline, government, or jurisdiction of the same.' (Signed) 'John M'Millan, Minister at Cardross.' (Stat. 7.) On or about 17th February 1858, the Free Presbytery of Dumbarton raised a libel against the pursuer. The libel contained three counts, which accused the pursuer of drunkenness, and improper conduct towards a female, while minister of the said church of Cardross. The case came to depend before the General Assembly of the Free Church at their sittings in May 1858, by which Court the judgment complained of was pronounced, whereby the pursuer was suspended from the office of the ministry sine die, and his church ordered to be declared vacant. During the whole procedure had under the said libel, the pursuer was a minister of the Free Church of Scotland. (Stat. 8.) On 28th May 1858, a note of suspension and interdict, com- plaining of the foresaid proceedings in the General Assembly, was presented by the pursuer to the Lords of Council and Session. The note prayed their Lordships to ' suspend the proceedings complained of, and to interdict, prohibit, and discharge the said respondents ' (the defenders in the present action of reduction, etc.), 'and the Free Church Presbytery of Dumbarton, and the Eev. Colin Mackenzie of Arrochar, or any other party or parties the said respondents may appoint or have appointed, from proceeding to the complainer's church at Cardross, and declaring or preaching the charge vacant, on Sabbath first, the 30th instant, or on any subsequent day ; or to do otherwise in the premises as to your Lordships shall seem proper. (Stat. 9.) On this application the pursuer was heard by counsel before Lord Kinloch, Ordinary on the BUls. Thereafter his Lordship pronounced the following interlocutor: — 'Edinburgh, 28th May 1858. — The Lord Ordinary having considered the foregoing note of suspension and interdict, Refuses the same as incompetent.' The pursuer did not reclaim against this interlocutor." The defenders' 8th statement in the second action ran thus : — " Thereafter the pursuer presented the note of suspension and interdict referred to in the summons, craving that the Court of Session should suspend the sentence which had been pronounced against him by the Assembly, and interdict the Assembly from carrying it into effect. This note was refused as incompetent by Lord Kinloch, Ordinary. Thereafter the pursuer was cited to appear at the bar of the General Assembly to answer whether or not the application to the Civil Courts was made with his authority, and he answered that it had. He was in consequence, in conformity with the laws and constitution of the Free Church of Scotland, deposed by the sentence of the General Assembly, being that now sought to be reduced." DECIDED IN THE COUET OF SESSION. 75 The defenders pleaded in the first action : — " 1. The pursuer has no title to sue this action, and the defenders are not bound to satisfy the production. 2. The action is incompetent, and cannot and ought not to be entertained in this Court, because — 1st. The sentence complained of having been pronounced in a matter of ecclesiastical discipline by a judicatory of the Free Church of Scotland, an association of Christians tolerated and protected by law, any review of, or complaint against, that sentence in the Civil Courts is excluded ; and 2d. The pursuer, as a minister of the Free Church, contracted and bound himself to submit to the discipline and government of that church. 3. It is not a relevant ground for calling for production and reduction of the writs in question that the defenders have deviated from the ordinary forms of process in observance in the Free Church, the same being a matter exclusively within the cognisance and regulations of the Free Church and its judi- catories." They repeated their pleas in the second action, adding — "The defenders acted strictly within the line of their duty and com- petency, as members of an Ecclesiastical Court, under whose authority the case fell." On 15th February 1859, the Lord Ordinary pronounced the follow- ing interlocutors : — In the first action — "The Lord Ordinary having heard parties' procurators upon the preliminary defences, and made avizandum. Finds that, prior to the Disruption in 1843, the pursuer was a minister of the Established Church of Scotland ; that, on the occasion of that event, he adhered to the Free Church ; that he signed the protest, No. 25 of process, by which the subscribers separated themselves from the Estab- lishment ; that he also subscribed the deed of demission, of which No. 14 is an extract; and that, on occasion of his being admitted minister of the Free Church of Cardross, he subscribed the formula which is engrossed on page eight of No. 27 of process : Finds that the present action calls for production, with a view to reduction, of a resolution or sentence of the General Assembly of the Free Church, pronounced as a matter of ecclesiastical discipUne in the course of a process or libel raised against the pursuer at the instance of the Free Presbytery of Dumbarton, whereby the said Assembly suspended the pursuer from the ofiice of the ministry sine die, and loosed him from his charge : Finds that the grounds of reduction alleged against this sentence are certain irregularities in the procedure upon which that sentence followed, whereby it is set forth that the said General Assembly have violated their own rules and practice, and those of the Free Church : Finds that, by the fundamental principles of the Free Church, as established in the foresaid deeds and their other standards, to which the pursuer has given his personal adherence, all matters of ecclesiastical discipline are referred to the final sentence of their General Assembly, as the body entitled exclusively to adjudicate upon them : and Finds that its members, including the pursuer, are bound to submit to such final sentences, and not to bring them in question before any. Civil Court; further finds, in respect of its subject-matter, this action is incompetent 76 LEADING ECCLESIASTICAL CASES in this Court : Therefore sustains the preliminary defences, dismisses the action, and decerns : Finds the pursuer liable in expenses," etc. In the second action — " The Lord Ordinary having heard parties' •procurators on the preliminary defences, and made avizandum, Finds, that this action seeks for production, with a view to reduction, of a resolution or sentence of the General Assembly of the Free Church, whereby the pursuer was deposed from the office of the ministry, pro- ceeding upon his confession or acknowledgment that he had presented to the Court of Session a note of suspension and interdict against a sentence of suspension pronounced against him by the said Assembly : Finds that the pursuer, as a member of the Free Church, and bound by his subscription and adherence to its standards and formula, is not entitled to pursue such action : And Finds, sepcuratim, that this action, in regard of its subject-matter, is incompetent in this Court : There- fore sustains the preliminary defences, dismisses the action, and decerns : Finds the pursuer liable in expenses," etc. Against these interlocutors the pursuer reclaimed, and prayed the Court to "repel the pleas of the defenders, so far as preliminary, or at any rate to repel them in so far as pleaded against satisfying the pro- duction ; and remit to the Lord Ordinary to proceed with the action as may be just ; and to find the pursuer entitled to expenses." On 15th June 1859, the Court, "before answer," appointed " the parties respectively to give in minutes setting forth the admissions they respectively make in regard to the writings referred to in the proceedings, and whether they do or do not renounce further probation;" and, in obedience to this interlocutor, the following minutes were lodged : — " Grant, for the pursuer, stated that he admitted : — I. The accuracy of the documents in process, viz. — (1.) Claim, Declaration, and Protest, forming a portion of the printed copy of the Acts of Assembly of the Church of Scotland for 1842, No. 12 of process. (2.) The Duplicate Protest, No. 25 of process. (3.) Extract registered Act of Separation and Deed of Demission, No. 14 of process. (4.) The document called Extract Minutes from the records of the Free Presbytery of Dumbarton, No. 15 of process, — and that these documents should be held equivalent to the origina,ls. He also admitted that the last of these documents should be held as proving the averments therein set forth. And, II. That the said Duplicate Protest, Act of Separation and Deed of Demis- sion, and Formula, No. 27 of process, were subscribed by the pursuer. He further stated: — III. That the pursuer was willing to renounce probation in so far as the preliminary defences pleaded against satisfying the production were concerned, it being of course understood that the pursuer's right to prove his averments at the proper time, and after the production has been satisfied, is fully reserved." Cla/rh, for the defenders, admitted that the document. No. 6 of process, produced by the pursuer, is a correct extract from, or copy of the records or minutes of the General Assembly of the Free Church, and that the same shall be held as equivalent to the original, and he was willing to renounce further probation, in so far as regarded the questions raised in the preliminary defences, provided the pursuer DECIDED IN THE COURT OF SESSION. 77 gave the following admissions, viz., those contained in Arts. 1 and 2 of the pursuer's minute. These minutes were repeated in the second process, and the pro- ductions in the first held also to be productions in the second. On 20th July 1859, the Court pronounced the following interlocu- tor : — " Conjoin this cause with another cause at the pursuer's instance, also in this day's roll ; and in the conjoined actions recall in hoc statu the interlocutors of the Lord Ordinary reclaimed against in the said conjoined actions ; and appoint the parties to give in written cases on the defences pleaded against satisfying the production in both of the conjoined actions." The pursuer pleaded : — That the case fell to be disposed of, so far as regards the preliminary pleas against satisfying the production, on the footing of the proof, so far as requisite to support these pleas, being concluded. Unless, therefore, the principal, if not exclusive foundation of the defenders' objections, viz., the allegation of fact that the pursuer has bound himself not to apply to the Civil Court, even in such circumstances as are presented in the present case, is proved by the documents referred to, the preliminary pleas against satisfying the production must necessarily be repelled. The two actions of reduction depend very much upon the same principles, and will probably stand or fall together. The mode of judicial procedure now in use in the Free as well as the Established Church is that which was enacted by the General Assembly of the Church of Scotland in 1707. This has been adopted as one of the fundamental rules or constitutions of the contract of association of the Free Church. But the gravamen of the pursuer's complaint has reference not to any mere irregularity in the established forms of process in the Free Church — as has been fallaciously assumed in their argument by the defenders, — ^but to a gross violation of those rules and principles which are essential to, and of universal application in, the fair administration'' of justice, in all Courts, and on aU occasions. Essential principles in the administration of justice are one thing — ^modes of applying or carrying them into operation are quite another. WhUe the defenders seem to contend that nothing more is alleged against them than an error or irregularity, in the mere form of their proceedings, the pursuer maintains that the grounds of his com- plaint are clearly such as to shew that the first principles of justice have in his case been violated and set at nought. It is trite to say that no one can be condemned unheard, or at least without being allowed an opportunity of being heard ; and that every one before con- demnation must be made acquainted with the charge against him, and permitted to answer as to its falsehood or truth, or the modifying cir- cumstances by which it may be extenuated or explained away. Yet the pursuer was condemned unheard, and without having been allowed any opportunity whatever, in any way or form, of stating his defence. A mere irregularity in the form of the proceedings against him is not therefore the thing the pursuer complains of It is impossible, indeed, that any mere irregularity or error in form of process could have occurred, where no process, no trial, no judicial proceeding existed. In 78 LEADING ECCLESIASTICAL CASES short, the defenders' acts did not partake of the judicial character ; in one word — they were lawless.' When the pursuer's case came before the General Assembly for review, there had been no complaint to the Synod against the decerniture pronounced by the Presbytery. There was a partial appeal to the Synod by the pursuer. This appeal was sustained by the Synod, and the pursuer, being thus successful, acqui- esced of course in the decision. The representatives of the Presbytery in the Synod appealed to the General Assembly against the reversal by the Synod of those portions of their own decision which had been brought before the Synod by the appeal of the pursuer. There was also a complaint by the minority of the Synod. The complaint brought up to the Assembly all that had been before the Synod, but nothing more. Whether, therefore, by appeal or complaint, it must be obvious that it was the judgment of the Synod, and that alone, that could be transferred and was transferred to the Assembly for review. But, un- happily, when the pleadings were at an end, the parties removed from the bar, and the Assembly were pretending to sit as judges, they totally violated this fundamental law, and took up the whole case as originally presented to the Presbytery, and dealing with matters behind the back of the pursuer, and in regard to which he neither was nor could have been heard, pronounced sentence of suspension against him. He was called into Court upon one charge, and was condemned upon another, and quite a different one. In the deposition case the defenders say that he pleaded guUty ; but this is a mere gratuitous assumption. To say that a simple admission by the defender that he authorised the presentation to this Court of a suspension and interdict, without allowing him to add another word by way of defence or explanation, amounted to a plea of guUty, where there was no libel, no charge, no trial, is the merest mockery. On this point, it will not be overlooked that, in assuming that the piu'suer pleaded " guUty," by merely admitting that he had authorised an application to the Civil Court, the defenders further assume that such an act was an offence or crime, and stood prohibited by their contract of association. But on what does such an assumption rest 1 Where is the clause of the contract ? where are the words that support the defenders' proposition ? They nowhere exist. These illegalities were not unobserved, but, on the contrary, consciously and deliberately perpetrated, in spite of remonstrances by some members of the Assembly. In the present case the pursuer had not waived his opportunity of explanation, or lost his right to a hearing, by contumacy or delay. On the contrary, he attended upon an irregular citation. He was prepared with a sufficient explanation, and he had begun it when he was forcibly prevented from going on. The illegality of such proceedings has been already determined by the Courts." Further, the pursuer was not served with a libel, or indeed any intimation of the charge intended to be insisted on against him. Not 1 Hill's Practice of tlie Judicatories of the Churcli of Scotland, p. 35. " Sliarpe v. Bickerdike, 25th Feb. 1815, 3 Dow, 102 ; Mitchell v. Gable, 17th June 1848, Session Reports, vol. x. p. 1297 ; the Queen v. the Archhishop of Canter- bury, Law Journal Eeports, vol. 28, p. 159, Q. B. DECIDED IN THE COUET OF SESSION. 79 only did he not receive any such service, but in truth and reality he received no notice whatever, in any form or shape, that he was to be proceeded against either for suspension or deposition, or anything else. When the pursuer was deposed, conceiving that the contract between him and the defenders had been violated, he applied to the Civil Court for redress by note of suspension and interdict. Now, in no part of the contract between the parties is there any clause prohibiting the the members of the association from applying for protection to the civil power. Such a clause existed in the case of Dunbar v. Skinner,' and was summarily disposed of. But the absence of such a clause con- ferring such a power upon the governing body of the Free Church, was apparently, in their judgment, a matter of no moment whatever. It appears to have been their opinion that, whenever the dominant majority for the hour of the Free Church General Assembly pleased, they could turn a minister adrift with a stigma upon his character for any or no cause whatever, in his absence or in his presence, with or without notice to him of any accusation or charge, and without allowing any opportunity whatever of being heard in explanation or defence ; and that, by characterising his conduct as a high ecclesiastical offence, they are safe from consequences. Any such doctrine was expressly repudiated in the case of Cruickshank v. Gordon,'' the prin- ciples given effect to in which did not depend on the connection between the Established Church and the State, but are of general application. The defenders themselves narrate, in their eighth state- ment, that the pursuer was deposed for merely authorising an appUca- tion to the Civil Courts. The simple fact of complaint to the tribunals of justice was therefore the one unqualified ground of the pursuer's de- position. So far from being asked why the application was made, or how, or under what circumstances, and whether he repented or apolo- gised, he was not allowed, notwithstanding his urgent entreaty, even to refer to its cause. It is therefore not merely said that there is no ground of action in this case, but that no member of the Free Church can ever possibly have a ground of action against any procedure of its officers. It is alleged that it is not merely vain for a Free Churchman, wronged by a violation of the laws of his association, or of public law, to apply for redress to a Civil Court, but that the simple act of doing so is so heinous, that the officials of the Church are entitled to depart from their ordinary procedure, and execute justice upon the spot. This is at variance ahke with the laws of the Church of Scotland, adopted, according to their own statement (Stat. 3) by the defenders, and the first principles of justice. In the 1st chapter and 4th section of the Form of Process approved by Act of the General Assembly 1707, it is provided that " nothing ought to be admitted by any church judicatory, as the ground of a process for censure, but what hath been declared censurable by the Word of God, or some act or universal custom of this national church agreeable thereto." Certainly neither the Word of God, nor the acts or customs of the Church, declare that ' 3d March 1849, Session Keports, vol. xi. p. 945. " Session Eeports, vol. v. p. 909. 80 LEADING ECCLESIASTICAL CASES recourse to a tribunal of justice for the reparation of a wrong is a censurable offence. If the pursuer can shew that there are any cir- cumstances whatever in which it would be competent for him to complain to the tribunals — that there is a possible action or mode of proceeding against the defenders for obtaining redress for civil injuries by extraordinary means, he submits that the doctrine must fall. The same law must be applicable to the pursuer as was administered to the Strathbogie' ministers. He was first suspended, as they were, from the ofiice of the ministry, and then he was deposed, as they were also. The deposition proceeded in part, in^ the case of Strathbogie, on the ground that the Presbytery had appealed to the civil power ; and this is the ground for deposing the pursuer of this action. It was no more illegal in him to complain that the contract was violated than it was on the part of the Strathbogie ministers to complain of the violation of the statutes regulating the Established Church. It cannot be pretended that the Free Church General Assembly have a wider jurisdiction than was possessed by the Assembly of the Church of Scotland, who had authority and jurisdiction conferred upon them by the Act 1592, cap. 114, "concerning heads of religion, maters of heresy, excommunication, collation, or deprivation of ministers, or ony sik like essentiall censours speciallie grounded and havand warrand of the Word of God." Even supposing that he had entered into a contract, of which, however, there is no evidence, whereby he " bound and obliged himself to submit to the final sentence and decree to be pronounced upon him in reference to any matter of discipline, and that the same should not be reviewable in the Civil Court," he maintains it as an indisputable proposition, supported by undoubted precedents, that a sentence issued materially disconform to the rules and regulations of the body would be set aside by the Court of Session. The point may be illustrated by two classes of cases : — 1. Arbitrations. Every such contract bears that the parties submit themselves to the final sentence and decree-arbitral of the referees. But if an arbiter refuse to hear the parties, or, in certain circumstances, to allow them proof, or be guilty of any gross irregu- larity, by which unfairness or injustice is perpetrated, the Court of Session will interfere and quash the award. 2. Cases which arise under proceedings carried on before jurisdictions, whose sentences are declared final by the Legislature. It is the most common thing for the Court of Session and Court of Justiciary to be occupied with suspensions and reductions of the proceedings of these independent jurisdictions. Observe that the finality and conclusiveness of the sentence are de- clared by the Legislature. Put the case, therefore, that the pursuer had, in the comprehensive language of the Legislature, agreed and declared, that all review by suspension, reduction, advocation, or other mode whatsoever, should be incompetent, this could no more bar him from these modes of redress against proceedings in violation of the contract, than it does any of the lieges from such redress against pro- ceedings in violation of statutes. The case of Presbyteries in regard to 1 Presbytery of Strathbogie, Feb. 14, 1840, Session Keports, vol. ii. p. 691. DECIDED IN THE COURT OF SESSION. 81 schools affords a familiar illustration.' With regard to magistrates the books are filled with authorities. No cases are more anxiously placed beyond the jurisdiction of ordinary courts than excise cases, and yet the Court of Session, in order to protect the lieges from oppression, steps in and sets aside lawless proceedings.'' In all cases the Court, though their jurisdiction is excluded, are allowed to look at the pro- ceedings, in order to see whether they are under the contract of submission, or under the statutes, or are lawless acts which are merely under the contract or statutes in name. Even the Crown never took up the ground now advanced by an association which is merely tole- rated. The whole matter, therefore, when thoroughly analysed, just comes to this, that the pretensions of the defenders are nothing else but the old Popish doctrine of ecclesiastical supremacy above the civil power, which is not allowed even in one Eoman Catholic country at the present day. The defenders' first plea is not so much one against the pursuer's title to sue, as a plea that the jurisdiction of the Court does not exist, or has been ousted, and is thus mixed up with other branches of the case. The first subdivision of the defenders' second plea proceeds upon the assumption that the General Assembly of the Free Church is a "judicatory," and that it can pronounce sentences, while, at the same time, the Free Church is simply called an "association of Christians, tolerated by law." There is here a complete confusion both of ideas and of language. The words "judicatory" and "sentence" are utterly inapplicable to the doings of a voluntary association, what- ever be its object. Judicatory and sentences imply jurisdiction and courts, with authority from the supreme power to pronounce judgment, and to carry the sentence into execution.' The General Assembly of the Free Church cannot found upon any such source for the institution of their "judicatory," nor the further right to pronounce their "sen- tence." And they do not pretend to have any such human source for the power which they claim. It arises entirely from the nature of the subject, and because it is one of " ecclesiastical discipline." This at once suggests the inquiry as to what position is held in the law of Scotland by voluntary " associations of Christians" dissenting from the Established Church. Questions in regard to this matter have very seldom occupied the attention of the Courts, and for obvious reasons. It is not untU comparatively recent days that such associations have 1 Act 43 Geo. III. cap. 54 ; Lockhart v. the Presbytery of Deer, 5th July 1851, 13 D. 1301—3 W. and S. p. 441 ; Heritors of Kilberry, 15th Nov. 1825, 1 F. R. ; Eoss V. Presbytery of Tongue, 2d March 1826, 1 F. R. ; Ferguson v. Stirring, 13th Feb. 1847, 9 D. 691. « Excise Statute 7 and 8 Geo. IV. cap. 53 ; M'Donald v. Gray, 16th June 1844, Session Reports, vol. vi. p. 1161 ; Pawnbrokers' Act, 39 and 40 Geo. III.; M'Connal V. Scott, 21st Nov. 1840, Session Reports, vol. iii. p. 128 ; Weights and Measures Act, 5 and 6 "Will. IV., cap. 63 ; Robertson i). Hart, 24th Deo. 1842, 1 Brown R. p. 468 ; Act against Poaching during the night time, 2 and 3 Will. IV. cap. 68 ; Russell V. Lang, 1st June 1844, 2 Brown B. 211 ; Master and Workman Act, 4 Geo. IV. cap. 34 ; French u. Smith, 25th June 1855, 2 Jrving, 198 ; and Bone v. Bird, 3d Dec. 1855, 2 Irving, 279. ' Ersk. ui. 2, 3. G 82 LEADING ECCLESIASTICAL CASES been even tolerated." It is impossible to read the statutes without seeing that the position which dissenters possess in this country is correctly stated by the defenders as being nothing more than tolerated. What was formerly a matter of censure, excommunication, absolute prohibition and punishment, is now made simply free from culpability. People are allowed to meet and worship God as they please, just as they are allowed to meet for any other purpose of social life. The distinction has been entirely overlooked by the defenders be- tween an Established Church and dissenters. In regard to the one the Legislature has established proper courts, with the right to exercise a jurisdiction peculiar and limited, but certainly possessing the character of proper jurisdiction. Of dissenting sects, however, the law knows nothing, except in so far as it tolerates them, and will only give effect to their rules if they be not contrary to public policy or the law of the land. They do not form one of the institutions of the country recog- nised and established, and their meetings for the exercise of " discipline," or for public worship, or for the management of their affairs, do not possess in any one particular the character of a court. No doubt they may pass regulations in regard to all these matters, but these regula- tions, deriving all their authority from the contract of parties, and the toleration which the law has given to dissenters, must be construed by the civil law. The Courts will therefore interfere to prevent their abuse, or their being wrested to the gratification of malice. The consequences of a different doctrine would be productive of incon- veniences that would bring the administration of law and justice to an end. If every tolerated dissenting sect formed an independent com- munion, there would be in the country as many wvperia in imperio as there are sects. As they increased, there would just be so many subjects taken out from subjection to the general law, living under the laws of their own particular sect, while the Courts, however gross were the oppression, would have no power to give protection. No man can renounce the protection which those laws confer upon him, any more than he can renounce his allegiance, or withdraw himself from the punishment which they impose in the commission of crime. No man will be allowed thus to resign his natural rights, and if he can shew that he has received manifest injustice by the violation of a solemn contract, he is entitled to claim reparation, and to insist that the authority which was merely tolerated should not be abused, contrary to the very end and purpose of the toleration. If a man become a member of a scientific or literary club, and agree to be subject to its regulations, the Court will enforce these regulations so far as they are lawful. But if the superintending committee of such a club should use their character as committee merely as a means of more formally and influentially injuring a member, can there be a doubt that the only difference between such a wrong and that done by an individual con- 1 Acts 1567, cap. 2 to 6 ; 1572, cap. 45 ; 1600, cap. 17 ; 1 Hmue, p. 576 ; 1618, cap. 18 ; 1607, cap. 1 ; 1640, cap. 5 ; Thomson's Acts, p. 300 ; 1661, cap. 8 ; 1612, cap. 1, 4 Thomson's Acts, jp. C94 ; 1640, cap. 4, 5 Thomson, p. 291 ; 1662, cap. 1, 7 Thomson,, p. 372 ; Act 1690, cap. 27 ; Act 1690, cap. 5 ; Act 1690, cap. 28 ; The Toleration Act of Anne ; Act 4 and 5 Will. IV. cap. 28 ; 1 Hume, p. 579. DECIDED IN THE COUET OF SESSION. 83 sists entirely in the greater atrociousness of the former, and in the larger measure of damages which ought to be awarded 1 In no other particular does the Free Assembly differ from any of the honourable and learned scientific societies which exist among us. They stand in the same category before the law ; for the distinction between them of the one being for a literary purpose, and the other for a religious, has no influence on the rights and privileges which belong to the com- mittee or the Assembly. Both of these governing bodies may be entitled to presumptions in their favour, and may plead a privilege, requiring that malice should be established before damages can be awarded against them for their official acts. But if this be made out, they stand in the position of every other subject in the State of being answerable in damages for their wrong.' The defenders ask to have the averments of fact contained in their next proposition, that the pursuer contracted to submit to the discip- line of the Free Church, and that the defenders were acting, as an Ecclesiastical Court, within their jurisdiction, assumed in their favour without any evidence to support them. It has been already shewn that the pretension here set up to the character of an Ecclesiastical Court has no authority in the law of Scotland ; and the confusion of ideas on the subject upon the part of the defenders is made more striking by the fact that the second proposition, as to their being an Ecclesiastical Court acting within their jurisdiction, is deduced from the first proposition, that the relationship subsisting between the pursuer and the defenders is founded upon contract. The parties are agreed in regard to the latter point. It is for the defenders to shew, if they can, from the productions already in process, that by the contract the pursuer is debarred from asking this Court even to consider his case. If they cannot do that, their pleas as a preliminary bar to satisfying the production will fall to be repelled. The utmost that can be extracted from the documents from which the defenders appeal is, that there is an internal government in the Church of which the civil magis- trate is not, as such, a member, and with which he cannot, as such, interfere — a very different thing from their proposition that he is excluded from the consideration of, or adjudication upon, any question or matter relating to, or arising out of, the exercise of ecclesiastical discipline, even although the civil rights of parties can be shewn to have been invaded by proceedings contrary to the laws adopted for the internal government of the Church. The distinction really amounts to this, that the civil magistrate, as such, cannot be a member of the court or body of officials by whom the affairs of the Church are administered, but that it is his duty to see that these affairs are administered in accordance with the laws of the Church. It only remains, under this head, that the pursuer should consider the formula subscribed by the ministers of the Free Church. In promising to submit to "government and discipline," and to "follow no divisive course," the pursuer understood he was binding himself to submit to ' Dunbar v. Skinner, 3d March 1849, Session Reports, vol. xi. p. 945 ; Edwards V. Begbie, 26th June 1847, Session Eepoi-ts, vol. ix. p. 1384, and 28th June 1860, vol. xii. p. 1134 ; Auchinoloss v. Black, 6th March 1793, Hume, p. 595. 84 LEADING ECCLESIASTICAL CASES the rules and doctrines of the Presbyterian system — to refrain from attempting to undermine or innovate upon the general polity of that system — but not to submit to any arbitrary or illegal treatment the defenders might choose to inflict upon him. The general doctrine of exclusive jurisdiction is therefore no part of the question. The question is not whether the defenders have or have not exclusive jurisdiction, but whether they had jurisdiction to depose the pursuer for seeking redress of a civil injury in the supreme Civil Court ? Whatever claim to the character of a judicatory they might have in the legal adminis- tration of Free Church affairs, they can have none in the matter here complained of It is not the exclusiveness of their jurisdiction that is objected to, but the lawless conduct it is set up to cover. The laws and standards of the Free Church, as acknowledged and put in process by the defenders, shew that the pursuer has not discharged his claim to protection, through the ordinary tribunals, against any injury by the defenders upon him in their capacity of professed administrators of government and discipline according to these rules and standards. His title to sue this action is consequently beyond a doubt.' The consequences which are to flow from sustaining the present action form no part of the present discussion at this stage of the cause. The defenders pleaded; — The pursuer comes into Court, averring the existence of a church, whose affairs are administered by courts, to which he was, while a member of that church, amenable. No doubt it is a voluntary church, tolerated, not established by law, but still, in the eyes of its adherents,- among whom the pursuer was one, it is a church by whom the clerical ofiB.ce is conferred, and by whom it is taken away. The very statement that it is a church necessarily im- plies that power. Nor does the pursuer dispute this. He asserts only, that it must be done in a certain prescribed form ; and if that prescribed form be not followed, he can appeal to the Civil Court, to have the spiritual sentence reduced. His contention is, that while he admitted that the Courts of the Church were undoubtedly dealing with a matter which fell under their cognisance, as his ecclesiastical superiors, they overstepped the forms of process which the constitution of the church provides ; and that, hence, the Civil Court, which takes no cognisance of such spiritual matters, will reduce the sentence, and restore him against its effect ; that the minister suspended and deposed by the church — who has been declared by the church no longer entitled to exercise the functions of the holy ministry — shall owe his restoration to that office, and his title to discharge its sacred duties, to a decree of the Civil Court. This contention is directly opposed to the idea of a church, and directly antagonistic to those principles from which the Free Church, as separate from the State, takes its origin, and to which the pursuer gave his adherence, and which he vowed to carry out. The Civil Courts of the country had held that the patri- monial interests which, in the Established Church, the State had con- nected with the clerical office, gave them a right to interfere with, and stay the execution of sentences of the Church Courts ; and they did so. ' Forrester v. Walker, 27tli June 1815, F. C. 467. DECIDED IN THE COURT OF SESSION. 85 To prevent this interference — to secure what they regarded as necessary to their spiritual independence, the adherents of the Free Church, of whom the pursuer was one, renounced the benefits of the Establishment, giving up those patrimonial interests, in the existence of which, and their legal connection with the clerical oifice, the right or obligation of the Civil Courts to interfere had been placed and justified. The documents which have been produced and admitted by the parties, explain and demonstrate what has been stated. In the Claim of Eight, the Assembly of the Established Church of Scotland agreed on a statement of what were the rights of the Church, and essential to its existence as a church, and what had been the encroachments upon them. That document set forth, that it is an essential doctrine of the Church that the power of the keys, or spiritual authority, is committed exclusively to its Courts ; and that " the government of the church, thus appointed by the Lord Jesus, in the hand of church ofl3.cers, distinct from the civil ma^strate or supreme power of the State, and flowing directly from the head of the church to the office-bearers thereof, to the exclusion of the civil magistrate, comprehends, as the object of it, the preaching of the Word, administration of the Sacra- ments, correction of manners, the admission of the office-bearers of the church to their offices, their suspension and deprivation therefrom, the infliction and removal of church censures, and, generally, the whole 'power of the keys.'" Language could not more clearly express the right which the Church claimed. It was exclusive jurisdiction in matters spiritual, and that the decrees of its Courts in these matters should on no account whatever be interfered with by the Civil Courts. The Legislature refused to recognise the right which was claimed by the Church. A protest was in consequence laid on the table of the General Assembly of 18'43, signed by a very large number of ministers and elders, chosen as Commissioners to that Assembly. It referred to the decrees of the Civil Court, setting aside, and interfering with, the sentences of the Church, as precluding them from holding that Assembly, because it could only be held under the condition of submitting to the decrees of the Civil Courts. In prosecution of this protest, and of the Claim of Eight, a deed of demission was signed by those who adhered to the Free Church, by which they renounced the temporal benefits of the Establishment, but without abandoning or impairing their rights as ministers, and declared that " they are, and shall be, free to exercise government and discipline in their several judicatories, separate from the Establishment, according to God's Word, and the constitution and standards of the Church of Scotland, as heretofore understood." Both of these deeds are signed by the pursuer ; and in the formula which he subscribed when inducted into the charge of Cardross, he declares, . . . and "I shall, in my practice, conform myself to the said worship, and submit to the said discipline and government, and exclusive jurisdiction, and not endeavour, directly or indirectly, the prejudice or the subversion of the same ; and I promise that I shall follow no divisive course from the doctrine, worship, discipline, government, and exclusive jurisdiction of this 86 LEADING ECCLESIASTICAL CASES church." In these circumstances the pursuer brings his actions to reduce the two sentences which the Courts, to which he bound himself to submit, have pronounced against him. These sentences, like all sentences of the Church, deal only with matters spiritual. The one suspends him, and the other deposes him, from the ofSce of the holy ministry. To reduce these sentences, as he asks, — and it is the only thing he asks, for the conclusion of damages is not yet before the Court, and at any rate is dependent on the conclusions of reduction, — is just to restore him to the office of the ministry, for the sentences deal with nothing else, and to give him as it were ordination of new at the hands of the Court of Session. The question arises whether the pursuer has a title to challenge the sentences which the Courts of his Church have pronounced against him, and whether he is excluded from that challenge from the constitution of the Church to which he bound himself to adhere ? Is he entitled to repudiate its standards and fundamental principles, as well as his contract and vow, and to appeal to that power to which, iu matters spiritual, or in order to stay the sentence of the Courts of his Church, he has declared it to be a sin, and contrary to the Word of God, to resort? What is the ground on which he calls in the aid of the civil tribunal ? Take the first case. It is because the Assembly have taken a particular view of the effect of an appeal. He says it is the Supreme Court of the Free Church. He admits that he was subordinate to it, but he denies that it can judge to what extent and effect a case of spiritual discipline is before it. Is it not an absurdity to deny to a Supreme Court the regulation of its forms ? Still more so is it to say that a CivU Court is to reverse a sentence of a Church Court, because a party affected by a particular sentence may choose to raise a question regarding its forms of process. There is absurdity on the face of such a proposition. But if it is of the essence of that Church, as the pursuer vowed it to be, that its ■ sentences should not be disturbed by the civil tribunals, is the pursuer not excluded from this action ? He says it is a pactum iLlicitwm to resign the privilege of an appeal to Csesar. Is it unlawful to say that the Courts of the Church shall judge of its forms, and prescribe its own procedure, and protect its sentences from civU review, by an obligation that no review shall be competent on an allegation of a want of observation of form % Is it a pactum illkitum when a voluntary church is governed upon the principle of excluding the royal supremacy and the civil jurisdiction in causes ecclesiastical in points of form, as well as on the merits 1 Is it to be held a pactum illicitum when the Eoman Catholic clergy in this country bind themselves, ia what pertains to the tenure of their offices, to submit to the judgment of the head of their church on points of form and everything else 1 Or is it a pactwm illicitum among the Society of Friends when they make the non-pay- ment of a war-tax a condition of their membership ? Is it illegal to claim by compact that which the Established Church has by law?' On the other hand, in regard to the second action, it is idle for the pursuer to attempt to represent an application to the Civil Court as 1 Lockhart, Session Eepovts, vol. xiii. p. 1296, 5th July 1851. DECIDED IN THE COUET OF SESSION. 87 otherwise than an offence of the greatest magnitude in the eyes of the Church to which he had given his adherence. It was one which by their constitution was to be punished, withou* process, with instant excommunication. Is it illegal to say that a minister who does so shall be immediately deposed 1 There is surely no law against that. But having said so, and having decreed that such a member should be immediately deposed, can that member ask to be restored into the society, because it has expelled him for that offence which, by its con- stitution, is to be punished with expulsion, and in that summary manner which is correspondent with the character of the offence t It cannot be otherwise than one of the gravest offences which can be committed by a minister of the Free Church, to violate the very principles to which she owes her existence as a church separate from the State. Therefore, in this case, it is in vain for the pursuer to say that his appeal to the Court of Session was not, in itself, an offence against the essential doctrine of the Free Church. It is one which inferred instant deposition. By the contract on which he founds — that is to say, according to the constitution of the Free Church — the pursuer cannot say that the act for which he was deposed did not amount to a spiritual offence in the eyes of the body of which he was a member. This, therefore, reduces his ground of challenge to two things, viz., 1, that he was not served with a libel; and, 2, that he was not heard. In reducing the second action to these two points, it is obvious that the first involves a mere point of form, raising this question, whether the Court is prepared to reduce, because the pursuer was not served with a libel. It is prescribed that the deposition in such a case as the pursuer's should take place without process. The only point, therefore, really is, that the pursuer was not heard. He could not have been heard to deny the act, for he admitted it, and thereby pleaded guilty. He could not intend to retract or explain ; for by his protest, left, as he said, at the bar of the Assembly, he justified, and is now justifying it. But to ask reduction on the ground that he was not heard, the pursuer must surely be in the position of saying that he had not committed the offence. He is raising in the Civil Court the question which he says he desired to raise in the General Assembly, whether th« alleged violation of a form of process justified his appeal to the civil tribunal. That he was not permitted to raise this question can surely be no ground of reduction, if it be proved, as the defenders submit it is, that the application to the Civil Court in these or any other circumstances was an offence against the constitution of the Church, and opposed to its fundamental principles. The case of the pursuer comes to this. He alleges that the forms of process have been violated, and on that ground he appealed to the Civil Court for redress. But he bound himself to submit to the decrees of the spiritual court, and on that ground his actions are excluded. Next, the application to the Civil Court, or even the maintenance of his right to appeal to the Civil Court, is inconsistent with the fundamental tenets and principles of the Free Church ; and independently of his obligation to submit to the decision of the spiritual tribunals, he 88 LEADING ECCLESIASTICAL CASES cannot ask reduction of a sentence of deposition or re-admission into the Free Church, when, in the very act of making the demand, he is acting in direct opposition to its constitution and essence. For these reasons the defenders submit (1) that the pursuer has no title to pursue these actions, or to call for production of the sentences sought to be reduced ; and (2) that the actions are incompetent, and excluded by his own obligations and vows. But there is another plea not less importan}; than these. It is whether the subject-matter of these actions is such as the Civil Courts can regard — ^or whether, in any circumstances, they will undertake to reverse the merely spiritual sentences of a voluntary church. The jurisdiction of the Court of Session must be exercised consistently with the toleration which aU religious societies enjoy.^ The Court of Session is a purely civil court, and it may be regarded as an axiom that it will not entertain any action in which patrimonial interest or civil right is not involved. It will inquire into any matter in order to decide the civU right ; but unless the action is brought for the purpose of vindicating a civil right, it will not move. The sentences sought to be reduced, deal with spiritual matters only. No doubt the pursuer says in his first action, that by the sentence of suspension he was deprived of his manse, and his allowance from the sustentation fund ; and in the second, that the Synod of Glasgow and Ayr removed him from the office of clerk, which he had held. But he has not raised this action in order to vindicate his right to the one or the other, but merely to reduce the sentences of suspension and deposition. Nor has he indicated in the whole of his record that any legal connection subsists between the emoluments which he drew, and the clerical ofiice of which he has been deprived. If a minister lays claim to a church, or to a manse, or to a salary, or to any other civil right, the Court will inquire and give it to him, if he can shew a legal title to it. And in that inquiry it will take cognisance of any matter, whether spiritual, doctrinal, or ecclesiastical, on which the civU right may be shewn to depend. The Court is familiar with actions at the instance of dissent- ing bodies to establish such right, and have in such inquiries gone into the nicest distinctions of controversial theology. If, therefore, the pursuer had raised an action for the purpose of obtaining a decree that he was entitled to possession of his manse, or to draw certain allow- ances, the question would be one of purely civil right, and, beyond all question, for the determination of the Civil Court alone. If it were necessary, the Court would then inquire whether the sentences of sus- pension and deposition were regularly pronounced, if the title to the civil right depended on that point, but not otherwise. Reduction of the decree of the Church Courts is, in such a question, neither necessary nor competent It is not necessary, because the civil right can be determined and maintained, though the spiritual sentence stands ; and ' Whately's "The Kingdom of Christ Delineated," 4th ed., Parker, London, 1845, p. 92 ; Evans v. the Corporation of London, 1767, Parly. History of England, vol. xvi. p 313, London, 1813 ; Eex -o. Hart, Burn's Ecclesiastical Law, ii. pp. 197-8 ; Locke, vol. vi. p. 17, 11th ed., London, 1812. DECIDED IN THE COUET OF SESSION. 89 it is not competent, because the spiritual sentence deals with purely- spiritual matters, not coming within the cognisance of a court of law. If the pursuer is to make this a question of civil right, he must, to take the most favourable view for him, shew that success in the reduction necessarily inferred a restoration not to church privi- leges, but to the enjoyment of patrimonial benefit. Not that in the view of the defenders this fact would be conclusive of his right to reduce — very far from it ; but they conceive that its absence is con- clusive against him. The views for which the defenders have been contending, could not be better illustrated and confirmed than in the interlocutor and note of Lord Moncreiff in the unreported case of Osborne, decided on 5th July 1831.' That the pleas which the defenders have thus maintained constitute proper preliminary defences to an action of reduction, does not seem to be matter admitting of doubt. The pursuer has not raised any question on this point, either in the discussion at the bar, or in the case which he has lodged, and when it is considered that both the Act of Sederunt and the Court of Session Act ^ permit the defender to state, as preliminary defences, any ^ A minister of the Reformed Presbyterian Cliurcli had been accused before the Courts of that body of immoral conduct. He presented a bill of suspension and interdict against the Presbytery of the bounds (the Southern Eeformed Presbytery) proceeding in the libel against him. The case came to depend before Lord Moncreilf, who pronounced the following interlocutor and note : — ' " Edinburgh, July 5, 1831. — The Lord Ordinary having considered this bill, with the answers and productions, and having heard parties by their counsel — In respect that the complainer admits that he was a member of the religious society referred to, — that he reoeiyed his ordination as a minister from this Reformed Presbytery, — and that he bound himself to submit to their jurisdiction as an ecclesiastical body ; and in respect that it does not appear to the Lord Ordinary, according to the statement of the complainer himself, that he had been loosed or released from that connection and jurisdiction in regard to his ecclesiastical status, finds it incompetent for this Court to interfere to stop the proceedings of the respondents in the matters alleged, which are purely of an ecclesiastical nature : Therefore refuses the bill as incompetent, finds expenses due, and remits the account, when lodged, to the auditor to be taxed. " Jambs W. Monobeiff. " Note. — The complainer having voluntarily bound himself, as a member of this association of Christians, tolerated and protected by law, to submit to the discipline of the Presbytery, according to the ordinary principles of Presbyterian government, the law wiU recognise the obligations thereby come under as matter of contract. This gentleman admits that he was charged with certain matters of a proper ecclesi- astical nature ; and while the Presbytery were m cursu of prosecuting the charges, he says that he intimated that he wished to renounce the connection, and cease to be a member of the society. But the Lord Ordinary apprehends that an ordained minister of any such sect or association, cannot, merely by saying so, relieve himself from the jurisdiction — once solemnly contracted — and that the legal effect of the contract is, that the Presbytery must have authority to prosecute to an end the measures of church censure or discipline which they have begun, unless the party has been loosed from his connection with them by their own act. J. W. M." A second bill having been presented, and having come to depend before Lord Newton, his Lordship expressed his full concurrence with the views and opinion of Lord MoucreifT. " A. S. 1828, sect. 36 ; 13 and 14 Vict. c. 36, sect. 7. 90 LEADING- ECCLESIASTICAL CASES pleas founded upon objection to the title of the pursuer, or on exclusive title, or " on any other objection against satisfying the production," it is not easy to see how it could be successfully maintained that the defences which are maintained are not properly preliminary in their character. These pleas have for their object to establish that the sentences of the Church Court cannot be reviewed by the Civil Coui-t ; and, if that is so, it is immaterial on what ground the exclusion of the Civil Court depends ; whether on paction, or because the sentences of the Church Courts do not involve civU right|. There is an equal pro- tection from civil review, and if it can be shewn that a sentence is beyond the reach of the Court, it has always been held that it was incompetent to order its production. In the case of Cruickshanks, before referred to, the whole questions as to whether the Civil Court could reduce the sentence of the Established Church were discussed on the preliminary defences without satisfying the production. But no more familiar or better illustration could be given than is to be found in the case Miller v. Henderson,' where a small-debt decree, and the diligence upon it, were unanimously held to be excluded from review, and where the action was, on that ground, dismissed without the pro- duction being ordered to be satisfied. It is plainly the meaning of the Act of Sederunt, that no party shall be entitled to enforce the produc- tion of any writ upon the pretence of reducing it, if his antagonist is able to shew that, after it is produced, it cannot be examined or set aside by the Court If, in short, it can be successfully maintained that the Court cannot entertain the question or the grounds of action on which the reduction proceeds, it will not give effect to the conclusions of exhibition. But if, besides, the grounds of reduction are such as to shew that the pursuer has no relevant action, the case of Shedden v. Patrick'' is a conclusive authority against the pursuer being entitled to require that production of the writs called for'should be ordered. The pursuer can take no benefit from the case of the Heritors of Kilberry, and others of that class, which affirm no other principle than that, if the Legislature lay down certain statutory rules for the guidance of presbyteries in their jurisdiction over schoolmasters, the Civil Courts will not allow their sentences to receive effect if these rules are violated. Nor does the case of Dunbar aid him ; the question before the Court there was, whether the Bishop had jurisdiction to pronounce the sen- tence, after Sir "William had withdrawn from the Scottish Episcopal Church. There was no other. The Bishop claimed jurisdiction on the one hand ; Sir William denied it on the other. It could hardly be seriously disputed that, if the Bishop had no authority to pronounce the sentence. Sir William was entitled to proceed in his action. The defenders do not assert that the Courts of the Free Church can pro- nounce sentence against persons who have never belonged to their communion, or who have competently withdrawn from it. It is only ' Feb. 2, 1850, Session Reports, vol. xii. p. 656. 2 March 11, 1862, Session Reports, vol. xiv. p. 721 ; House of Lords, May 15, 1854, Session Reports, vol. xvii. p. 18. DECIDED IN THE COUET OP SESSION. 91 when, as in this case, there is no dispute, that the pursuer, as a minister of the Free Church, submitted himself to the jurisdiction of her Courts, that the defenders claim for her decrees that exemption from civil review or interference which they think essential to their spiritual liberty, and only consistent with the spirit of toleration. Of this date the case was advised. LoED President (M'Neill). — These proceedings come before us iuthe shape of two actions of reduction brought at the instance of Mr. M'Millan, who designs himself minister of the Free Church of Cardross, and residing atCardross. They are directed against the General Assembly of the religious denomination calling themselves the Free Church of Scotland, and certain persons who are office-bearers and members of that association. Tho circumstances in which these cases have originated are alleged by the pursuer on the record, and we have before us the counter-allegations of the defenders. The pursuer concludes in his summons in the first of these cases, to have a certain sentence which had been pronounced by the General Assembly of the Free Church rescinded and reduced, and himself reponed and restored against the same ; and he further concludes for damages against the defenders. He says that he was a member of the religious association mentioned ; that he held a certain status in that body ; that he was minister of the parish of Cardross ; and that he was the holder of another situation of emolument, the clerkship of the Synod of Glasgow and Ayr of the Free Church. He says that, by a sentence which has been pronounced by the General Assembly of that body, he has been deprived of his status as an office-bearer or minister, and has suffered the loss of the offices of emolument which he held. It appears that certain proceedings had been instituted against this pursuer on account of alleged misconduct on his part, — alleged acts of impropriety and of immorality ; and that a certain judgment had been pronounced by the Presbytery to which he belonged, whereby it was found that a certain portion of the charges against him had been established, and a certain portion had not ; that there was then an appeal taken by him to another tribunal that exists within this association, called the Synod, and that the Synod pronounced another sentence, in which they gave a judgment favourable to him on the only points on which an appeal had been taken against the judgment that had been pronounced by the Presbytery ; that then an appeal was taken to a still higher tribunal that belongs to that association, called the General Assembly, and that in that body certain proceedings took place, of'which he complains as irregular and incom- petent, and under which proceedings, he says, a sentence was pronounced iinding him guUty of certain immoralities, of which he had been previ- ously acquitted by a final sentence of the Presbytery, and which were 92 LEADING ECCLESIASTICAL CASES not then tke subject of discussion or consideration, at least not com- petently so; that, having found him guilty of these immoralities, a sentence was pronounced, suspending him from the office of the ministry sine die; that the parish or church of which he was a minister was declared vacant ; and that the consequence of that was, to deprive him of the advantages of a temporal character that belonged to his office of minister, — the enjoyment of a house, and the other emoluments which he received, and also by necessary, or nearlj^ necessary consequence, to deprive him of the other office of clerk to the Synod. He says that these proceedings stripped him of his position as a minister and office-bearer of this religious body, and as Synod-clerk, and that he was by that sentence stigmatised and branded as a moral wrongdoer. He says that by these proceedings, and in this manner, he has been degraded, and disgraced, and calumniated, and deprived of his good character and of his means of subsistence. He says that all this was done by the General Assembly at a time when the subject-matter with which they dealt was not before them, or at least not before them competently, and according to the rules and constitution of the body to which he belongs : and he says further that that was done when he had no means or opportunity of defending himself. He maintains - that, in so acting, the defenders were not warranted by the rules or constitution of the association, or the contract by which the parties were bound to each other, and by which they were to be governed in their dealings with each other. He says that he never came under any agreement giving to the defenders such power or authority over him, and he challenges them to shew any such contract, rules, or constitution. That is his statement in the process of reduction of the sentence to which I have alluded, suspending him from office. And he adds, that in so treating him the defenders were actuated by malice and ill-wUl, and acted without any reasonable cause. In the other action of reduction, he says, that having been treated in the way described in the first action, he applied to the Civil Court for redress, in order to have the judgment of the Civil Court upon the question, whether, according to the contract which he had entered into, he was lega,lly subject to be so treated by the authorities of the association, or whether they had stepped beyond their powers ; and he says that, having done so, and for so doing, he was forthwith deposed from the ministry without trial or hearing. He says that this also was not warranted by the con- tract or rules of the association. Such are his allegations. The defenders say, that in finding the pursuer guilty of certain immoralities, they did not violate any of their rules. They further say, that whether they violated their rules or not in the particulars that are described, the pursuer is precluded from seeking redress from the Civil DECIDED IN THE COUET OF SESSION. 93 Court ; that it is part of the contract or constitution of the association that he shall not do so in any matter of ecclesiastical discipline, or in any matter spiritual, and that this was such a matter. They further say that, according to the contract or constitution of the association, not only was he bound to submit to the exclusive authority of their General Assembly, but any appeal to the Civil Court for redress against even an alleged violation of the contract, nay, that the mere maintenance of his right to appeal to the Civil Court, is inconsistent with the fundamental principles, is destructive of the fundamental principles, of the association, and is a flagrant breach of the constitution, meriting instant deposition. In this way both parties have appealed to the contract or constitution under which they were acting and associated. A good deal is said throughout the papers, especially in the revised case for the defenders, — in language which, I suppose, is intended to be used in a limited sense, — in which they describe their authority over the body in this way : — " While the Free Church cannot prevent parties betaking themselves to the Civil Courts, they can say, and have said, that, as a church of Christ tolerated by law, they have an independent jurisdiction in spiritual matters, and that, if a member does not choose to abide by their sentences, he cannot remain in their body." And again they say, "that the sentences themselves, and consequently an action for the purpose of reducing them, involve exclusively a question of ecclesiastical discipline, and not any question of civil right, and that, therefore, a Civil Court cannot take cognisance of them ; and that an allegation that a court which is admittedly supreme in all matters which come within its juris- diction has violated its forms of process, is a plainly irrelevant ground of action, for the simple reason, that the admission that the court is a supreme court necessarily involves an admission of its power to regulate its forms." Now, in using the expressions, "court," "a supreme court," and " court of supreme jurisdiction," I presume the parties mean to use them as the most convenient way of expressing what the rules and con- stitution of that body are. For, strictly, I cannot hold that they are a court recognised as such by law — a supreme court recognised by law, or exercising jurisdiction in a strict sense. I adopt upon that subject very much the views and language of Lord Fullerton in one of the cases previously decided. But they are convenient enough expressions for indicating the kind of self-constituted jurisdiction and authority that these parties have, by their own constitution, set up for themselves, — that they have formed themselves into presbyteries, synods, and General Assembly, that they have subjected themselves to certain authority which they have agreed to confer on these respective bodies ; and that the word "court" is used in that sense, and that the word . "jurisdiction" is 94 LEADING ECCLESIASTICAL CASES used in that sense ; and in that sense it is easily intelligible. But there is no question before us now as to the jurisdiction of a court properly so called. We are here in a question as to a body which has a constitution of its own, and we are to deal with the case upon that footing. It appears to me that the pursuer, if he has really suffered wrong, as he says he has — for he alleges that he has sustained injury at the hands of the defenders in regard to his character and his temporal interests — is entitled to redress like any other subject of the Queen, unless by his own voluntary act he has relinquished the right to seek such redress, and has in some lawful way subjected himself to the power and authority of others without appeal. On the other hand, I think it is equally clear that the defenders, as oflSce-hearers and members of a religious association or body tolerated by law, are entitled to all the benefits and privileges which such toleration gives. If their bye-laws, or constitution, or rules of government, are not contrary 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 its laws. But if the ofi&ce-bearers or the governing authorities of the body go altogether beyond the sphere of the constitution of the association — if they deal with a member in a way that they are 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 give them, 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 themselves precluded from giving him redress. To explain what I mean, I may put a case. I suppose it is not alleged, on the part of this association, that it was competent for them, according to their rules and constitution, to have, without the knowledge of this gentleman, instituted a secret inquiry of which he had never heard, and some day to call him before them and say — " We have ascertained that you have heen guilty of various immoralities — that you were seen drunk at such a time and in such a place — that you were guilty of immoral conduct in such a house — that you made indecent advances towards a certain female — and therefore we suspend you from the office of the ministry, and we will not hear you." He says — " I never heard of any such things ; they are new to me ; I never heard of any such places, persons, or things before. I wish to see the proof." " No !" " I wish to explain." "No!" "I wish to shew you that this mode of dealing with me is not within our rules." " No ! we know it is not within our rules, but that is of no consequence, we are supreme." I presume it is not contended that this body could legally act in that way. But if they had acted in that way, I think it is very clear that the party would have DECIDED IN THE COURT OF SESSION. 95 been entitled to come here" for redress, and say to the defenders " You have calumniated me, without being withia the authority of your own laws ; you have done me a gross injury, by treatment to which I had never subjected myself, and I insist on having redress." I presume that in that state of matters there would have been no incompetency or impropriety in the party coming to the Civil Court for redress. I do not wish to put the supposition of such conduct offensively in regard to these parties. I only put it in illustration. I do not suppose they would be guilty of such proceedings. At the same time it is not easy to say what public bodies may do. We see that individuals and public bodies act very differently in regard to matters. Neither nations, nor multitudes, nor public assemblies, nor corporate bodies, are always under the same control and restraint that individuals are. They do acts that individuals would shrink from ; and I do not find in history any solid ground for holding that parties associated as religious bodies, or congregated under a religious banner, or actuated by religious frenzy, it may be, or excess of zeal, are exempt from that general rule. Therefore it is possible that such a thing may occur, but in such case the courts of law would give redress. It appears to me, that there is presented to us here, upon the allega- tions of the parties, a case which it is necessary for us to look at and examine. Both parties appeal to the contract. The pursuer says — "I have been dealt with contrary to the contract which I entered into ; you have calumniated me without giving me an opportunity of being heard ; you have done that under circumstances which not only your constitu- tion did not warrant, but from which it protected me ; you have deprived me of the protection which the constitution gave ; you have done various things against me contrary to the constitution, and whereby I have suf- fered wrong." The defenders say — " No, you are wrong as to the facts ; but first, our constitution precludes you from seeking for redress." It is possible, when the constitution is examined, that it may be of the character which the pursuer alleges. It is possible that it may shew that these things were not within the power of the parties, and that they have violated the constitution. On the other hand, it is possible that the constitution may shew that he had subjected himself to be suspended, or expelled, or found guilty of immorality, without being heard. It is pos- sible that he had precluded himself from seeking redress, however great the wrong that might be inflicted on him, and however gross the violation of their own rules. That may be a part of the constitution. But in order to ascertain whether it is so or not, both parties appeal to the constitu- tion, and we must examine it. We must look into the contract. It is truly a question of contract— of the laws or bye-laws of a body or asso- ciation. We must look into it to see which party is speaking right. 96 LEADING ECCLESIASTICAL CASES Now, in order to do that, and in order to have the opportunity of doing that thoroughly, I was desirous of seeing the argument of the parties in writing, and I certainly expected to have laid before me more definitely than I now have this contract or constitution — the precise points of the constitution with which we are to deal, and the contract itself in whole — that I might examine it all. We have been referred to certain docu- ments from which it is said to be gathered, but not wholly to be gathered. There are to be imported into it certain things which are said to have been previously established in the Church of Scotland, and these are not pointed out. It is necessary that the contract should be clearly pointed out by the parties who plead it against the interference of the court of law. It is necessary that they should point out to us the clauses which exclude that interference, and whereby this party is said to have subjected himself to authority which excludes him from the rights which would otherwise have belonged to him. In order to get at this question, there- fore, we must examine the contract. But we must do more than examine it. "We must examine the sentence, in order to see whether it is within the contract or without the contract. More than that : When we have got that length, it may or may not be necessary — it depends on circum- stances — to examine under what circumstances that sentence was pro- nounced. The bare sentence itself may not solve the question. The simple sentence suspending this man — finding him guilty of immorality and suspending him — will not tell us whether it was pronounced iu violation of the contract or within it ; and it may become necessary — I do not say it will be necessary — to examine into the circumstances in which it was pronounced. Therefore, to say that the sentence is unex- aminable, is going a great deal too far. It must be examined, at least to the extent of ascertaining whether it was a sentence within the constitu- tion of that body ; and, in that position of matters, it appears to me that it is quite impossible, at this stage of the case, to sustain the defence as against satisfying the production. We must see the sentence and we must examine the contract. We must have both the sentence and the contract competently before us. The view, therefore, that I take of this case is, that in this stage of the matter we must repel those defences, as defences against satisfying the production. Quoad ultra, I think we need not pronounce any judgment upon them at present. I do.not think the matter is ripe for judgment otherwise, because we have not the elements and materials before us. We are only going on to get these placed before us. We ought to repel these defences against satisfying the production, and reserve them quoad ultra, and remit to the Lord Ordinary to assign a term for satisfying the production. There is another plea urged that I should like to make a remark upon. DECIDED IN THE COURT OF SESSION. 97 It has been urged, either in the papers or in the oral argument, I do not recollect which, that as the party seeks for redress by being reponed, we cannot meddle with this case, because we cannot make him again a minister of the Free Church. I confess I was not much moved by the argument — that we cannot replace the pursuer in the position in which he was before — that we cannot give him that of which he has been deprived. Supposing that to be so, it is really the most common position in which courts of law are asked to give redress. A party is wrongfully dismissed from his master's service. The Court does not repone him, but it gives him redress. A party is calumniated, and by reason of that calumny his employers dispense with his services. We cannot repone him, but we give redress in another form. A party has been subjected to imprison- ment wrongously, and by that imprisonment has lost a situation which he would otherwise have had. "We reduce and set aside the whole pro- ceedings, and having done so, give him redress in another form ; but we cannot take away the imprisonment which he has suffered, nor can we send him back to the service from which he has been expelled. A party suffers bodily injury by the wrongful act of another. He meets with a railway accident. He loses his leg. We give him redress, but we cannot repone him. That really is the most common position in which a court of law is asked to give redress. This party concludes for that species of redress which is the only one that courts can substitute for wrongs which they cannot otherwise redress — I mean pecuniary compen- sation. But whether he will ever arrive at that result is a matter upon which I give no opinion, or give any suggestion now, because we are only in this preliminary stage of the proceedings ; and what I submit to your Lordships is, to pronounce the judgment that I have indicated. Lord Ivoet. — After the very full and admirable manner in which your Lordship has gone into this case, it is but in a very few words that I shall state my opinion; and my only hesitation, even in enunciating these, is, that I may weaken the effect of many of those important obser- vations which are entitled to respect and consideration by the parties in this case. In this stage of the case we have nothing to do with anything but the simple question, ShaU the production be satisfied 1 It is a purely technical proposition in the course of the procedure. It involves nothing touching the merits of the case, it enunciates no decision upon the points discussed in the pleadings, whether as to the powers of the defenders or the obligations of the pursuer under the private and consentual contract by which their body is associated. All this, as I understand the purpose of the Court, is to be reserved entire for future disposal. In this situa- tion, I cannot say that I have any inclination to dissent from the result H 98 LEADING ECCLESIASTICAL CASES at whicli your Lordship has arrived, as being a perfectly competent result. And looting to the present conflicting statements and views as expressed on the record, and to the opportunities vrhich may thus, hy the course suggested, be given to both parties of amending that record in many respects, so as eventually to bring out the matters truly at issue in a more complete and satisfactory form for judgment, such a course would seem to have many recommendations. Indeed, so far as the defenders are concerned, I see no interest they can have to object, but rather the reverse, inasmuch as, in regard to much that is at present defective in regard to the important questions, what is the contract, and what is the precise measure in which, and in what respect, the old standards of the Church have been imported into the constitution of the new association ? They will thus have an opportunity of removing what, on this prelimi- nary record, is left obscure or ambiguous. At the same time I should, for my own part, be disposed to consider it quite as competent (to say no more) to have dealt with the case as regards the constitution of the defenders' body in the present preliminary stage. But it is one thing to say that that would have been a competent course, and it is a totally dif- ferent thing to say whether it would have been an advisable course, especially where reservation is to be made, which renders it competent to the Court, in an after stage of the case, to deal with all the matters which are reaUy involved in both preliminary questions ; for had the parties been entirely at one as to the compact between them, and as to its true reading and construQtion — for example, if we had here had an articulate and precise written constitution explicitly setting forth the respective relations, and powers, and province of all and sundry its members throughout the whole structure of the hierarchy, I think we might have come to such conclusions just now as might have, in certain views at least, enabled us to decide whether the decrees and proceedings under challenge were ultra vires or the reverse. If the latter, there would be no use in requiring production, for the action would be excluded. If the former, production must of course have been satisfied, and the reduction proceeded in — in this view, to a very rapid and easy con- clusion. It is, however, very much matter of indifference which course is followed. The preliminary defences and the merits do truly so run into each other, that the matter of the former might almost with equal propriety be stated as a defence on the merits of the reduction. Since the Court, therefore, seem to hold the satisfying of the production to be, on the whole, the more convenient course, and being satisfied that no material interest on either side will thereby be prejudiced, I at once give up any hesitation I might otherwise have felt, and am prepared to concur in the interim deliverance that has been suggested. Doing so, I abstain, of course. DECIDED IN THE COUET OF SESSION. 99 for the present, from entering upon consideration of tlie various import- ant matters so ably and elaborately urged in tbe pleadings, and reserve tbe expression of any opinions I may have formed until at a future stage the case shall come up again on its whole merits, including, of course, the matters involved in these preliminary defences, and be presented on a fuUer, and more precise, and definite, and satisfactory record. I may, however, venture perhaps to observe, even now, that, as it humbly ap- pears to me, the importance of the present question, important as in many points of view it undoubtedly is, has been very greatly exaggerated. There seems more or less on both sides to be no inconsiderable misappre- hension as regards the practical bearing and operation of the present action. It will settle nothing, or aU but nothing, of the larger field of constitutional matters that have been brought under discussion ; for even were the pursuer to succeed, it would only be in respect of certain defects as to the evidence of the existing constitution, and the judgment would not materially, if at aU, affect the radical and fundamental right of the defenders to frame a new constitution for themselves, under which, there being nothing incompatible with the public law of the country, they might competently and validly bind their members to fulfil and obtemper all and every of those provisions and enactments therein embodied, and forming a mutual compact, whereby they would be weU and lawfully asso- ciated, and to which all and sundry the consenting parties would thence- forth be subject. The power of the defenders, as of every other dissent- ing church, and, indeed, of every private association of individuals, thus to associate themselves together, and, in all respects, not encroaching on the law of the land, to frame a code of bye-laws binding within their body, no one would dispute, and this Court would be the first to support, and the last to interfere with. Accordingly, it is not there that any difiiculty arises in the present case. The puzzle here is in getting at the solution of two questions, — first, what truly is the contract ? and second, what is its sound and legal construction, if it exists 1 If the present constitu- tion, therefore, shall turn out to work defectively in any respect, it only follows that it has in so far been Ul-made, and the parties may at once proceed to frame a better. But whatsoever contract they may frame, certainly no more than any other contracting parties, whether an associa- tion or individuals, could they exclude the ordinary civU jurisdiction of this Court to decide between the members, — 1st, whether such a contract does really subsist or not ; 2d, what is the true measure and meaning of that contract % and 3d, what is the construction and interpretation to be put on any one or more of its particular clauses and provisions, about which the members of the body are at variance 1 When these questions, however, are once solved, and they are clearly here, as in all other ques- 100 LEADING ECCLESIASTICAL CASES tions of private contract, questions for the decision of a civil tribunal, this Court may be excluded from interposing in any matter which truly falls within the contract, and the dealing with which the parties have reserved to themselves. But when anything is attempted out of the contract, and beyond its stipulated action, the Court will undoubtedly have jurisdiction in this case, as in every other, to keep the contracting parties to the bar- gain, whatever that may be, which they have made for themselves. It may be of use, therefore, and tend to allay apprehension, to keep in view that such is all the length which even the most unfavourable decision in the present case could possibly go as against the defenders. The parties are here at issue as to what their contract is, and this must be decided between them either now or afterwards. But even if the decision be un- satisfactory, the remedy is open. The Free Church and its members would only have to begin anew, and frame with greater care and better success a fresh contract, more perfect in its operative enactments, and more consonant to the views and intentions of all and sundry. Lord Curribhill. — In these conjoined actions the pursuer concludes, first, that sentences of suspension and of deposition which were pro- nounced against him by the defenders the General Assembly of the Free Church of Scotland, on 24th May and 1st June 1858, should be reduced ; and secondly, that that Assembly, and certain individuals, should be found liable in damages to him. The question at present under consi- deration is whether or not the former of these demands can be discussed and adjudicated upon in these actions 1 In order to deal rightly with this question, we must keep steadily in view the averments which the pursuer makes, and offers to instruct, in support of his conclusions for reduction. These averments, when carefully analysed, appear to me to consist sub- stantially of the following propositions : — 1st. That the Free Church of Scotland is an association constituted by a contract, in virtue of which its affairs are managed by certain bodies of ministers and laymen, called Presbyteries, whose decisions may be ap- pealed against to a larger number of ministers and laymen, called Synods, whose decisions, in like manner, may be appealed against to a stiU larger number of ministers and laymen, called the General Assembly of the Free Church ; and that this latter body is composed of delegates and commis- sioners elected by, and representing, the different Presbyteries, for the purpose of consulting, voting, and determining in all matters that come before them, agreeably to the rules and constitution of the church. 2d. That according to the contract or rules, which form the consti- tution of this association, the only means by which a charge can be brought against one of its ministers consists of a formal document, or DECIDED IN THE COURT OF SESSION. 4'^ libel, wUcli must set forth the charge distinctly and specifica] upon such Hbel there must be a citation on an inducice of ten free and then a deliverance as to relevancy j that if the libel be found rele- vant, it must be followed by either admission or proof, without which, according to the rules and practice of the association, the penalty concluded for cannot be inflicted. 3d. That according to such constitution or contract, and the practice of the association, no party can be legally proceeded against for any alleged offence, without being allowed an opportunity of being heard, and of de- fending himself. 4th. That the pursuer became a minister of this association under these rules and constitution, and that the same formed the basis and essential conditions of the contract or compact which was entered into between him and the association, and the defenders, whereby he held his office and status, and derived his emoluments. 5th. That the charge upon which the sentence of suspension under challenge was pronounced, was not a matter which was under the judicial cognisance of the General Assembly by which that sentence was pro- nounced, — in respect, that although that charge had been made against him before the Presbytery of his bounds, a sentence of not proven, of what had formed the gravamen thereof, had been pronounced in his favour by that body ; that that sentence had become final, and was standing as a subsisting and unchallenged deliverance in his favour ; that although an appeal had been brought, first, before the Synod of the bounds, and thereafter before the General Assembly, of certain other matters which had also been included in the same libel, that appeal did not bring under the cognisance of the Assembly the charge, in so far as it had been so finally disposed of by the Presbytery in favour of the pursuer ; that ac- cordingly he was not heard, and had no opportunity of being heard before the General Assembly on that part of the charge ; and that the sentence of the Assembly, finding the whole of that charge proven, and in conse- quence thereof suspending the pursuer from the office of the ministry, was a violation by the defenders of the rules of the Free Church, and of the contract between the parties. 6th. That the charge also, upon which the sentence of deposition under challenge was pronounced on the 1st June 1858 (and which con- sisted of an accusation that the pursuer had contravened a fundamental rule of the Free Church, by applying to the Court of Session to suspend the above-mentioned sentence of suspension which the Assembly had pronounced against him), was not under the judicial cognisance of the General Assembly, in respect that no libel charging him with such an accusation had ever been served upon him, or had ever existed ; that the 102 LEADING ECCLESIASTICAL CASES Assembly, besides taking up the matter when it was not subject to tlieii cognisance, declined to allow him to defend himself, and condemned him unheard, and in other respects proceeded in contravention of the rules of the Church. 7th. That hy means of the sentences complained of, the pursuer has sustained loss and damage, for which the defenders are Hable in repara- tion to him. From this general analysis of the pursuer's summonses, it appears that the grounds of reduction pleaded by him result in this, — that, as he alleges, the General Assembly, in pronouncing both the sentences com- plained of, not only proceeded irregularly, but exceeded the powers conferred upon them by the contract or constitution of the Free Church, under which alone they had any authority to act in the matter ; or, in other words, that it was ultra vires of the Assembly to pronounce these sentences. The more important of these allegations, and particularly those im- porting that the powers of the Assembly are, by the constitution of the church, subject to the limits stated by the pursuer; and that the pro- ceedings against him were such as he represents, are met by denials on the part of the defenders. And hence the burden of proving these aver- ments, if, indeed, any proof shall ultimately be allowed, would be in- cumbent on the pursuer. But the defenders object to his being allowed an opportunity of proving his allegations, or to the merits of the challenge being adjudicated upon by, or even discussed in, this Court. They have, accordingly, stated several objections against the satisfying the production, — that is to say, against the two sentences and their warrants being judicially produced in process, in order to the grounds, upon which they are challenged, being considered and judged of by this Court. According to the ordinary rules of pleading, the defenders could urge these preliminary objections, to the effect of excluding any inquiry into the truth of the averments which the pursuer is offering to establish, and of depriving him of any opportunity of establishing them, only by assuming in argument that they are well founded. But the defenders have not conducted their argument on this footing. They have stated the case of the pursuer on the merits to be different from the case which he himself avers, and undertakes to estab- lish j and they urge their preliminary objections, not against such a case as the pursuer states for himself, but against quite a different case, which they state for him. Thiis the defenders have found themselves unable to support their objections to the merits of the actions being discussed, without themselves entering into the discussion of these merits. This shews very clearly that these objections are truly not of a preUminary DECIDED IN" THE COURT OF SESSION. 103 nature, but are mixed up "with the defences on the merits, and must be reserved for consideration along with the merits. This appears more clearly ■when the import of the only objections which have hitherto been urged by the defenders is particularly adverted to. These are four in number. I. It is maintained that the pursuer has no title to insist in this action. But supposing, as must be done in discussing this defence, as a preliminary one barring the action, that he would succeed in establishing the case he has stated in the summons, I cannot doubt that he has a sufficient title to insist in them. If it be true that by the sentences coinplained of he has been deprived of his office, status, and emoluments thereto attached, — that the pronouncing of these sentences was ultra vires of the General Assembly, — and has inflicted patrimonial, loss upon the pursuer, and that he is, in consequence, entitled to reparation &om the defenders, — he has a good title to insist in an action for trying the legality and validity of these sentences. The pursuer may fail to establish the affirmative of his allegations, and, if so, the defenders wiU be assoilzied from his actions. But in hoc statu his title to have the case he has stated tried is indisputable. XL It is maintained that the reductions are incompetent in this Court, because the sentences were pronounced in matters of ecclesiastical discipline or church government by a judicatory of an association of Christians, tolerated and protected by law. The meaning of this plea appears to be, — not that the General Assembly of the Eree Church is empowered by a conventional agreement among its members and office- bearers to exercise authority over them (because they state a separate plea to that effect, to which I shall presently advert), but that it is a judicial institution or judicatory having authority over such parties, otherways than in virtue of their own consent. If this is what is meant by the plea, it cannot be sustained. The dissenting bodies in this country, although they are unquestionably tolerated and protected by law, are still in their nature and character only voluntary associations or so- cieties, and their office-bearers whom they appoint for the management of their affairs, or for the performance of any other functions, are not in- cluded among the judicial institutions of the country,and haveno authority over any others than the members and functionaries of their respective associations, and have no authority over them beyond what is voluntarily agreed to by them. This association itseK has no existence otherways than by the con- ventional contract of its members. Its office-bearers have no authority over persons who are not members of the association, or, in other words, over those who are not parties to the contract. It being entirely optional to any person to join this association, and to submit himself to any 104 LEADING ECCLESIASTICAL CASES extent to the power of its governing body, that tody has no power over any person beyond what he has voluntarily agreed to submit himself to. The question on the merits wiU truly lie between the governing body of this association on the one hand, and the members of the association on the other hand. And the import of that question will be, how far have the latter subjected themselves to the authority of the former ? That subjection on the part of the members of the association — although it may proceed on a speculative opinion that rulers of such ecclesiastical societies have authority conferred upon them in spiritual matters from a higher source, — ^is stiU. only a voluntary subjection; and its extent and nature must be regulated by what they have agreed to, — or, in other words, by the conditions of their contract. It may be that on investigation it may be found that the pursuer and the other ministers of this association of Christians have voluntarily conferred upon the body of its officers constituting its General Assembly, such absolute and ex- clusive authority as is claimed by the latter, and have thereby bound themselves to submit to the exercise of such authority ; and also that, in the proceedings complained of, the defenders have not exceeded such authority. But the inquiry, whether or not this is the case, would just be the discussion of the merits of the actions, and must be reserved for that discussion. If this plea has any other meaning than what I have stated, it has not hitherto been explained to us by the defenders in their pleadings ; and, therefore, it cannot at present be sustained as a bar to the progress of the cause. If the defenders have any other explanation to give of what they mean by this plea, — or if they can state anything farther in support of it, as a defence on the merits of the actions, it will be open to them to do so, under the reservation with which the judgment now to be pronounced is to be qualified. III. It is maintained that the pursuer, as a minister of the Eree Church, did contract and bind himself to submit to the discipline and government of that Church. This plea raises what is truly the main question on the merits of this case. The parties are agreed that, by the contract which forms the constitution of the Free Church, the pursuer became bound to submit to its discipline and government. Both parties found upon that contract. And the question between them, when sifted, comes to be, whether or not by that contract by which that association has been constituted, authority was conferred upon the Free Church Assembly to pronounce the sentences under challenge. If this was the case, the pursuer, who was confessedly a party to that contract, is bound to submit to these sentences. If it did not, he is not bound to do so. Hence the question between the parties appears to me at present to DECIDED IN THE COUET OF SESSION. 105 resolve into one as to the true meaning and effect of that contract. The argument of the defenders, as I understand it, is, that that contract not only confers upon them ample authority to decide in all questions of dis- cipline regarding any minister of the body, and to suspend and depose its office-bearers, and in doing so to interpret that contract ; but that farther, it is an essential condition of that contract that their sentences in such matters shall be final, and binding on the parties, and not be reviewable by this or any other Civil Court on any ground whatever. If we were to dispose of this objection at the present stage of the process, then, as already stated, we would be compelled to do so on the assumption of the truth of the pursuer's statements. And what then would be the condition of the defenders' argument 1 It would be this, — that even assuming the sentences to have been pronounced in matters which, according to the conditions of the constitution of the Free Church, were not legally under the cognisance of the Assembly, and, moreover, to have been pronounced in contravention of that constitution, and without the accused having been heard in his defence, he is barred by some other conditions of that contract from challenging such sentences in this Court. If the case should ever be presented to us in that aspect, and if the de- fenders should show us any such condition in that contract, I am not at present prepared to say that even such a condition would be illegal or ineffectual quoad the contracting parties. If persons think proper to enter into an association on the condition that one or more persons as their governors or managers shall have the absolute and uncontrollable power of suspending or deposing its office-bearers without any accusation being made against them in the manner prescribed by the contract, and without such persons having an opportunity of being heard in their de- fence, I do not see that there would be any illegality in such a condition, or why it should not be binding on those persons who may have thought proper to contract on that footing. Indeed, even if it were a condition of such a contract that the office-bearers should hold their offices at the pleasure and discretion of the governing body for the time, I do not see why persons who may have such exuberant confidence in such governing bodies, and dehberately enter into such a contract, should not be bound by their own agreement. But the defenders have not hitherto brought up their argument to this point. They have denied the correctness of the pursuer's statements, both as to the terms of the contract, and also as to the nature of the proceedings against him, and have argued this objection on the assumption of their own* description of the contract and of the proceedings being correct. Again, however, this is just arguing the merits of the case, and not supporting an objection to these merits being allowed to be discussed in the usual manner. 106 LEADING ECCLESIASTICAL CASES Such being the state of tie procedure in this case, I am of opinion that, for two different reasons, this defence should not be decided by us at the present stage of the cause. In the first place, this question, as already stated, is chiefly that which constitutes the merits of the actions. The pursuer alleges, and offers to establish, that the contract between the parties contains such conditions as deprived the General Assembly of any authority to take cognisance of the matters in reference to whieh the sentences were pro- nounced, and that it was ultra vires of that body to pronounce these sentences. If the pursuer shall fail in establishing his allegations ; or if it should appear that the matters were properly under the cognisance of the Assembly, and that, even if there were anything wrong at all, it was only an error in judgment, or as to some trivial matter of form, it may be that the defenders may show that this challenge of the sentences is excluded by the conditions of the constitution of the association. Or even, as already mentioned, although the pursuer should succeed in establishing his allegation that the sentences were pronounced in contra- vention of some conditions of that constitution, it is not impossible that the defenders, on the other hand, might stiU shew that the challenge is notwithstanding excluded by some other condition of the constitution, or that the pursuer has not a sufficient legal interest to insist in it. But as such a discussion would involve the very merits of the grounds of reduc- tion, this defence cannot receive effect as a preliminary bar to that discussion, and should be reserved for that discussion itself. Ajiother conclusive reason for this is, that we have not the whole of the contract before us. What' has been produced to us by the defenders, as forming that contract, are four documents, viz., 1. The Claim of Eight made by the General Assembly of the Church of Scotland in 1842; 2. A Protest by the Members of the General Assembly who left the Church in 1843 ; 3. The Deed of Demission of that year; and 4. The Formula which was signed by the pursuer. But, in these documents, express reference is made to the Acts and Rules of the General Assembly of the Church of Scotland prior to these dates, in reference to the powers of, and the mode of procedure in, the Church Courts, as being also parts of the constitution of the Free Church. These have not yet been produced to us, and we are still in ignorance as to what it is the defenders so refer to and found upon. Moreover, in the printed pleadings, the parties are at variance as to their import. It is, therefore, indispensable that what is thus referred toand founded' on by the parties themselves, as elements of their contract, be produced to us, and considered by us, before we can be able to form an opinion on the merits on the controversy as to the import and effect of that contract. DECIDED IN THE COUET OP SESSION. 107 IV. The remaining objection is, that the averment that the defenders deviated from the ordinary forms of process or observance in the Eree Church, is irrelevant j that being a matter exclusively v?ithin the cognisance of the Church and its judicatories. If the result of the discussion on the merits shall be to shew that there was only a deviation from the ordinary form of process in the proceedings under challenge, the effect of such deviation will depend upon its nature, and upon the nature also of any provisions in the constitution which may apply to it. But the allegation of the pursuer, with which we have to deal, is not so much that the forms of process were not observed, as that the matters in which the Assembly adjudicated were not before them in any process whatever. And whether or not that allegation is well founded, is a question we wUl have to deal with when the merits come under our consideration. I, therefore, think that the defence under consideration should not be sustained as objections to satisfying the production, — their effect, how- ever, being reserved for subsequent discussion. LoED Deas. — The primary object of these conjoined actions is to reduce and set aside certain resolutions, embodied in minutes of meetings held by the defenders, whereby the pursuer stands suspended and deposed from being a minister of the body or association called the Free Church of Scotland, and is consequently deprived of the emoluments which he alleges to have formed his means of livelihood, and is, at the same time, disqualified from holding any other charge or clerical appointment in connection with the body. The usual course in actions of reduction, as your Lordships know, is, so soon as defences have been lodged, to appoint the production to be satisfied, — that is to say, to ordain the writings called for to be produced in judgment, so that a record may be made up and closed, embodying all facts and circumstances bearing upon the objections to which the writings are said to be liable, and tending to shew whether these writings ought or ought not to be produced. "Where any other course than this is to be contended for, it is incumbent on the defenders to lodge defences confined to the particular point or points in respect of which they maintain that the production ought not to be satis- fied. This course is exceptional, and it is incumbent on the defenders to set forth and establish their grounds of exception. The onus both of statement and of proof, at this stage of the cause, is with them, and not with the pursuer. It is not every defence, even of a preliminary nature, which can be availably stated at this stage of the proceedings ; but only defences of a kind which, if established, bar the pursuer's right to call for judicial production of the writings. The former practice in this respect was not altered by the Judicature Act (6 Geo. IV., c. 120), which. 108 LEADING ECCLESIASTICAL CASES after prescribing the forms of procedure in ordinary actions, enacted (sect. 27), tliat rescissory actions "shall, with such exceptions as the judges, under the powers hereinafter delegated to them, shall think necessary, be prepared and discussed according to the form and method already directed with regard to ordinary actions, but without prejudice to the present forms of actions of reduction in other respects." The powers thus referred to, as your Lordships are aware, are the powers conferred by sect. 50 of the same statute, " to make such orders and regulations con- cerning the forms of process," etc., " as may most effectually carry into execution the purposes of this Act, and remove any difficulties which may, in the details of practice, be found to arise in expediting the business." In virtue of these powers, the Court passed the Act of Sederunt 11th July 1828, the 36th section of which enacts, that in reductions, "if the defender is to object to the title of the pursuer, or to plead on an exclusive title, or to state any other objection against satisfying the pro- duction, he shall return defences confined to these points ; but if otherwise, no defences shall be given in at this stage of the proceedings ; declaring always, that it shall be competent to the Lord Ordinary, on cause shewn, though no defences should be given in at this stage, to reserve all objec- tions to the title till the cause shall be heard on the merits ; and the Lord Ordinary shall dispose of such objections in terms of the Act 6 George IV., e. 120, sect. 5." These last words refer back to the statutory provision, which is of course applicable to reductions as well as to other actions, and which confers " power to reserve consideration on such dilatory defences as require probation, until the peremptory defences shall be pleaded, and the record adjusted in the maimer hereinafter directed." The 7th section of the statute 13 and 14 Vict., c. 36, is just a virtual adoption, in a statutory form, of the then existing rule of practice, and is thus expressed : — " That when in a process of reduction the defender is to object to the title of the pursuer, or to plead on an exclusive title, or to state any other objection against satisfy- ing the production, he shall, in the first instance, lodge defences confined to these points ; and the form of such defences and the procedure thereon shall be the same as in the case of peremptory defences in an ordinary action ; and if the defences so lodged shall be repelled, the defender, after the production has been satisfied, shall give in defences applicable to the grounds of reduction, and upon the merits of the reduc- tion, and a record may be made up therestfter as in an ordinary action." This enactment is confirmatory of, and not derogatory from, the corre- sponding provisions in the then existing statutes and Acts of Sederunt, which, as well as other laws and usages, are declared by sect. 50 to be repealed, in so far only as inconsistent or at variance with the provisions DECIDED m THE COURT OF SESSION. 109 of the statute. In particular, the enactment does not derogate from the power, applicable to actions generally, to reserve consideration of pre- linunary defences, which require probation, to be discussed with the merits. I quote these enactments, because if the defenders' pleas in this preliminary record be either of a kind which cannot be given effect to at this stage of the cause, or of a kind which it is expedient to reserve, it will obviously be better to avoid, so far as possible, anticipating what may be the effect of these pleas at a future stage of the cause, when they come to be either absolutely sustained or finally repelled. The contest at present simply is, whether the action shall go on, or be at once dis- missed 'i The record before us is, by the express terms of the enactments I have read, necessarily confined to objections against satisfying the pro- duction. The probation adduced is necessarily confined to the same object. Farther probation has been mutually renounced, as applicable to this pre-judicial question, but to this only. If we hold that the defenders have not stated enough, or not proved enough, for their present purpose, the only result will be that, so soon as the writings or sentences, which are before us de facto, are put before us dejure, new defences will fall to be lodged, as the statute expressly bears, in which, even if we make no express reservation on the subject, it will be perfectly competent for the defenders to repeat the same statements and pleas which are in this preliminary record, as statements and pleas against the success of the action, with as many additions as they choose ; and when a record is completed, the defenders may repeat all the probation we have here, with as much more as they think proper, the only difference being that the burden of proof wUl no longer be on them to the extent it is now, and that the pursuer wiU have the opportunity of presenting his case for judgment in a completed, in place of an imperfect and inchoate form. Therefore it is that I wish to say no more than what is absolutely neces- sary for disposing of the question of procedure, with which alone your Lordships propose now to deal. But in order to deal with that question, one thing at least is indis- pensable, and that is, to inquire and see clearly whether the actions involve a question of jurisdiction or a question of contract ? This is a subject on which there is great confusion of language on the part of the defenders, both in the record, and in their able written pleading now before us. We must get rid of that confusion before we can move a step in our deliberations. If the question be one of jurisdiction, it must resolve into an inquiry, — such as occurred with the Established Church judicatories in the Auchterarder and Marnoch cases, — whether, and how far, the defenders have exceeded their jurisdiction ? But if the question be one of contract, — if the defenders are here simply as private parties 110 LEADINa ECCLESIASTICAL CASES contracting witli the pursuer, — then the inquiry must relate to the nature, terms, and legal consequences of the contract. It may be that the con- tract is one under which the Court will not interfere. That is another matter. It may also be that cases of jurisdiction have, in some respects, a bearing upon cases of contract. But the two things, — jurisdiction and contract, — are not the same, and it is essential to know which of them we are dealing with. Now, if anything be clear in the case, it is that the defenders are invested with no jurisdiction whatever, ecclesiastical or civil. All jurisdiction flows from the supreme power of the State. The sanction of the same authority which enacted the laws is necessary to the erection of courts, and the appointment of judges and magistrates to administer the laws. The Established Church of Scotland had, and has, this sanction. The statute law of the land conferred upon it ecclesias- tical jurisdiction, to be exercised by kirk-sessions, 'presbyteries, provincial synods, and general assemblies. But there is no such statute law appli- cable to the association called the Free Church. 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 the deeds and writings produced would seem to indicate, it is enough to say that this could not be done. No voluntary association can, by an agreement among its members, assume jurisdiction, which flows only from the legis- lative power and royal prerogative. The Free Church of Scotland is a voluntary association, tolerated and protected by law, as all voluntary associations, for lawful purposes, in this free country, are. What is termed toleration is 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 have not been erected into courts, either ecclesiastical or civil. The constituent members of these presbyteries, synods, and assemblies, are not judges in any legal sense. They sit, and act, and vote, solely in virtue of private contract, regulating their pro- ceedings among themselves, and such contract neither does nor can confer upon them any jurisdiction whatever. There is no such thing as volun- tary jurisdiction, in the ordinary sense of the term " voluntary." What was called " voluntary " jurisdiction, in the EomEin law, was that which related to matters admitting of no opposition, in contradistinction to " contentious," which related to matters debateable. Voluntary jurisdic- tion may be exercised by a judge at any time and in any place, — such as administering an oath of ratification to a married woman, or any lawful aflS.davit, — but .still it must be by a judge. There is • no such thing as a voluntary judge, in the sense of his being created either by his own act, or by the act and consent of any individual or set of individuals. Even an arbiter is not a judge, although the law, for reasons of expediency. DECIDED IN THE COUET OF SESSION. Ill concedes some privileges to his proceedings analogous to judicial privi- leges. " Arbiters," as Mr. Erskine observes (4, 3, 31), " are but private persons, in whom the law hath not vested jurisdiction ; and hence they cannot compel witnesses to appear and depose before them, or possessors of writings to exhibit them." " On the same ground (he says) arbiters have no power other than to decide. The execution of all decrees belongs to those alone who are invested with jurisdiction." It is obvious, however, that the defenders are not in the position of arbiters. They have not said they are ; and they will not say it ; for that would be hazardous to part, at least, of their defence. Arbiters must hear, and the defenders refused to hear. They say they were not bound to hear, and I am not assuming they are wrong in saying so. But, if bound to hear at all, it was certEiinly not as arbiters. There is here no contract of arbitration and no decreet-arbitral. If there were, we should be engaged in a totally different kind of inquiry, namely, whether the rules applicable to such contracts and decreets had been observed • and whether the sentences were liable to any of the grounds of objection recognised as competent by the same statutory authority which gives decreets-arbitral their finality. But that is not the nature of this case at all. It is neither a case of jurisdiction nor of arbitration, but a case of mutual contract, which the pursuer alleges, and undertakes to prove, that the defenders have violated to his loss and damage. That the pursuer has sustained loss is not disputed. The defenders' answer to article sixteen of the pursuer's statements in the first action, bears : — " Admitted that the result of the sentence complained of, and arising from the pursuer's own misconduct, is to deprive him of the emoluments formerly received by him as minister of Cardross. Admitted that the sentence resulting from such misconduct affects or may affect his character." The amount of the emoluments here referred to is admitted, in the second action (condescendence and answers, article 2), to have been about iElSO per annum, besides a dwelling-house and other advan- tages, and exclusive of .£40 of salary as clerk to the Free Synod of Glasgow and Ayr. I observe that by the deed of separation and demis- sion, of 23d May 1843, the pursuer, and others who signed that deed, reserved to themselves " the rights and benefits accruing to them, or any of them, under the provisions of the statutes respecting the Miuisters' Widows' Fund." How far the sentence of deposition affects any interest the pursuer may have with reference to that fund, we are not iuformed. But the mere fact that pecuniary loss resulted from the act done by the defenders, wiU not entitle the pursuer to redress from this Court, if the act was done by the defenders in accordance with the powers committed to them by the contract. For instance, if the contract had expressly 112 LEADING ECCLESIASTICAL CASES stipulatated that the defenders might at any time, without cause assigned, summarily depose the pursuer, or any other minister, and they had passed a resolution exercising this power, it would have been of no avail for the pursuer to say (unless he could shew such a paction to he unlawful), that the consequence of the resolution was arbitrarily to deprive him of his civil emoluments. The answer would have been that the event had occurred upon which he had perilled his right to these emoluments, and that, whether the discretion he had conferred had been rightly or wrongly exercised, this Court could give no redress. Suppose further, that the contract had borne that the pursuer, or any other minister, might be de- posed, at any time, by the defenders, but this only upon one or more of certain specified offences being found proved under a Hbel, and that the defenders, upon a libel and proof, had found one or more of the enumer- ated charges proved, — this Court would not inquire whether the defenders had come to a right or wrong conclusion on the proof, but would hold their finding conclusive, although the necessary consequence was forfeiture of the pursuer's patrimonial or civil rights. But suppose under a contract, in the terms last mentioned, the defenders, without finding any one of the enumerated offences proved, or upon finding something else proved, which might be laudable and not blamable, or upon the narrative of mere will and pleasure, had passed a resolution deposing the pursuer, then I should have no doubt that this Court might give redress against a reso- lution, the necessary result of which was to deprive the pursuer of his patrimonial or civil rights contrary to the contract. Suppose, again, that the contract had expressly provided that no minister should be deposed except after a Ubel had been served, proof led, and parties heard, with certain specified rights of appeal, and that it was averred and established to our satisfaction, that not one of these steps of procedure had been adopted — no libel served, no proof led, no hearing of parties, no appeal admitted or entertained — but sentence of deposition at once pronounced in a manner altogether unauthorised by the contract — I am not prepared to say that, in this case also, although the only departure from the con- tract may have been in the procedure, the Court could not give redress. I reserve my opinion upon that question, and likewise upon the question how far deviations in form may be carried without becoming matter of substance. I shall still suppose another case for the sake of illustration, although unlikely to occur. Suppose the contract had borne that every member belonging to the body should be liable to be deposed if he took the oath of allegiance to her Majesty, and that the resolution bore on the face of it that, in respect the pursuer had taken that oath, the defenders had deposed him, — could this Court not set aside or give relief against such a sentence 1 I should be slow to aE&rm that proposition. Now the DECIDED m THE COURT OF SESSION. 113 pursuer's case may be found, in the end, to fall so far short of any of these last three cases which I have supposed for illustration, as not to come -within the principles applicable to any of them. But the pur- suer avers and undertakes to shew that the circumstances of his case do involve all the principles involved in these three cases ; and the only question at present is, whether the defenders have established enough to bar the pursuer from shewing this if he can, and from satisfy- ing the Court that the legal result is ta entitle hun to the redress which he seeks. The sentence of suspension, which the pursuer complains of, suspen- ded him sine die, declared his charge vacant, and bore that he " cannot be restored to the office of the ministry except by the General Assembly." The pursuer's objection to this sentence is, that the question of his guilt or innocence of the main offence on which it proceeded was not before the Assembly — viz., the charge which the defenders describe in their revised case as an " indecent assault " on Mrs Manson, a married woman, — ^which charge had been negatived by the Presbytery, against whose judgment on that point no appeal had been taken, and which was consequently final. The pursuer had appealed to the Synod against the judgment of the Pres^ bytery, in so far as adverse to him, — which it was to the extent of finding that on one occasion his appearance had indicated that he was the worse of drink, and that his violent manner on that occasion had alarmed Mrs. Manson, but negativing any indecency or immodesty either in act or pur- pose. The Synod had found nothing proved against the pursuer at all, and his allegation is that, being at the bar of the Assembly solely to sup- port the judgment of the Synod, the Assembly, after parties had been heard and removed from the bar, proceeded, of their own motive, to take up the charge of indecent assault upon Mrs. Manson, which had not been brought before them ; found it proved, and, upon this finding, coupled with an affirmance of the Presbytery's finding that his appearance and manner had indicated his being the worse of drink, pronounced the sen- tence which, looking to its terms, was all but a deposition, and which, it is, alleged, would not have been pronounced in respect of the minor offence alone. The pursuer, besides seeking to reduce this sentence, complains of it on the record as "false, defamatory, and injurious" (Cond. Art. 5 and 14). Whether this would support a claim, of damages, as in Dunbar V. Skinner, apart from the reduction, we are not called upon at present to inquire. But the pursuer undertakes to shew that, according to the con- stitution of the association, which forms the contract of parties, the charge of indecent assault was not, and could not be, before the Assembly, and that their sentence is consequently void. The defenders may shew the "reverse, but they have not yet done so. They say — as I understand their m LEADING ECCLESIASTICAL CASES pleadings — that tte Free Chuich adopted the forms and rules of pro- cedure observed, before the Disruption, by the Church of Scotland. But we have not even been told, far less has it been proved, what these forms and rules were. Here, as on other points, the burden of proof is on the defenders, so long as the question is, whether the production shall be satisfied ? They have renounced further probation as applicable to that question — I mean, of course, the question of satisfying the production ; and, in this state of matters, it would be premature to form any opinion whether the a,Ueged violation of the rules of procedure is to be held a violation of the substantial conditions of the contract or not. As regards the sentence of deposition, there is no dispute between the parties either as to the mode and manner in which it was pronounced, or as to the cause for which it was pronounced. The pursuer had presented a note of suspension and iaterdict to this Court, to prohibit the defenders from carrying into effect their sentence of suspension, on the ground that it had been pronounced contrary to the terms of the contract. On the evening of Friday, 28th May 1858, the pursuer received intimation to appear on the Tuesday following, to answer for his conduct in that mat- ter. He did appear accordingly, and the question was put to him cate- gorically. Did he present the note of suspension and interdict — yea or nay 1 and on his answering yea, he was instantly deposed. Now, the pursuer avers and undertakes to establish three things, any one of which, he says, is sufficient for his purpose : 1st. That the rules of procedure prescribed by the contract were here violated still more palpably than in pronouncing sentence of suspension ; inasmuch as here there was no Hbel Elt all, no proper notice, no hearing, but a categorical answer exacted to a single question, followed by instant deposition ; 2d. That there is no such condition in the contract as that an application to the Civil Court, to prohibit a violation of the contract, shall be an offence, inferring depo- sition, or, indeed, an offence at all ; and 3d. That, even if the contract contained such a condition, it would be null and inoperative, as contrary to public policy, and, like any other unlawful condition adjected to a lawful contract, incapable of being enforced. As to the first of these objections, the remarks I have made in the suspension case about the rules of procedure, apply equally here ; and I need not repeat them. We must know precisely what the rules are before we can judge whether they have been violated, and what may be the effect of that violation. As to the second objection, the remark equally applies, that we do not yet know whether the contract contains the alleged condition or not. The only tangible reference on this point is that which is made to the old Act of Assembly 1582, which bears that none who have been received to an ecclesiastical office or benefice shall withdraw themselves from the DECIDED IN THE COURT OF SESSION. 115 jurisdiction of the Kirk, nor obtain or use letters or charges, nor make appellation from the General Assembly to impair or stop the discipline and jurisdiction, etc., granted by God's "Word to the office-bearers within the said Kirk, " on pain of excommunication, summarily and without any process or admonition." The defenders, in the record and in their case, content themselves with simply quoting this enactment. I wish they had told us how they construe it, and how they apply it to the case ia hand. Do they mean to say that every minister and office-bearer in the Established Church of Scotland was, by the rules and regulations in force at the date of the Disruption, liable to instant deposition, without pro- cess or admonition, if he applied to the Civil Court to prevent the General Assembly from violating its own constitution and stepping beyond the bounds of its jurisdiction 1 If they do not mean to say this, it is difficult to see how the reference to this Act of Assembly can avail them. If they do mean to say this, I should desire to make sure that we had before us aU the necessary materials for judging what the consti- tution of the Church of Scotland, at that time was, before giving effect to so startling a proposition ; and, consequently, for judging how far and to what effect such an enactment has been imported into the contract of this voluntary association. I understand the defenders' view to be that, by the protest which preceded, and the deed of separation and demission which followed, the Disruption, the constitution of the Free Church is agreed to be the same with what the constitution of the Church of Scot- land previously was, subject to the explanations contaiaed in the claim of right of 30th May 1842. But this refers us back to many records and documents we have not yet seen, as well as to various statutes, all of which must be considered ia connection with the single Act of Assembly quoted by the defenders, before we can know what was the constitution of the Church of Scotland, and, consequently, what is the contract of the association called the Free Church, to which the pursuer and defenders became parties, AU I shall say upon this point, in the meantime, therefore is, that, if the condition in question was a rule in the Church of Scotland, the defenders have not yet satisfactorily shewn it to be so ; and if it be a condition of their contract, although not formerly a rule in the Church of Scotland, they have not yet explained how it comes to be so, or pointed out where it is to be found. In regard, again, to the alleged illegality of the condition, I desire to say no more than that that is too grave a question to be discussed and considered tiU we know precisely what the condition is. K it shall be found to come to this, — can two parties to a civil contract confer upon one of them the power to irritate the whole rights of the other, in the event of that other applying to a Civil Court to construe the contract, and to prevent, or get 116 LEADING ECCLESIASTICAL CASES redress for, a 'breacli of its conditions? — then I do not know a more important question wHch could well te raised. It may be that the defenders can satisfy us that this is not a civil contract at all, or that, being a civil contract, the patrimonial rights are so linked to some Act, lawfully placed by the contract in the power of the defenders, that this Court can give no decree which would avail the pursuer. All that will be open to the defenders on the one hand, and the converse to the pursuer on the other. But, before we can go into such questions, we must know what the contract is. There can be no contract and no resolution of a private association which we are not en- titled to see and to construe, to the effect, at all events, of ascertaining whether they involve civil rights or not, and whether a wrong has been done or not, which admits of judicial redress. It is not necessary, in order to exclude such redress, that the duties to be performed under the contract should be spiritual duties. On the one hand, I know nothing to prevent parties from entering into a contract, which the Civil Courts wiU enforce, to pay an individual for mere spiritual services. And, on the other hand, I can conceive many contracts (using the word as synony- mous with agreements), which the Court will take no cognisance of, beyond ascertaining what they are, although they relate to the most ordinary affairs of life. If the agreement relates to something to which the law is indifferent, such as that two people shall walk together or dine together every day for a year, the Court will give no redress for the breach of such agreement. Nor wUl the Court give redress although the contract involves patrimonial rights, if these patrimonial rights are made dependent on some lawful discretionary act, whether that discretionary act be of a spiritual or a temporal nature. The question turns upon no such distinction ; and it is not incumbent, therefore, on the defenders to establish such a distinction. And this leads me to observe that all the three subdivisions of the defenders' second plea in law, to the effect that " the action is incompe- tent," really resolve into this, — if we drop the inaccurate phraseology about courts and judicatories, — that suspension and deposition were, by the contract, placed absolutely and unqualifiedly in the power of the de- fenders ; and if they make out this, and shew that they lawfully exer- cised this power, they will gain their case ; because, no matter whether the act was spiritual or not, it was an act, in that view, committed to them by the contract, and, being duly performed, aU the relative civil rights necessarily faU. But it is a mistake to deduce from this that the action is incompetent. The very question to be tried, in the action, is the question whether the contract be of the import, and was duly acted on as the defenders, in these subdivisions of their second plea, say DECIDED IN THE COURT OF SESSION. 117 that it was. But an action to try that question is not an incompetent action. The defenders appear to me to have been misled by their own phraseology into an idea that they were pleading a jurisdiction which excluded the jurisdiction of this Court. I have, already endeavoured to correct that misapprehension. I do not object to the phraseology about courts and judicatories. As a convenient mode of expression I do not hesitate to use it ; but, in a court of justice, we must not mistake words for things. And when the defenders speak of their jurisdiction, we must throughout understand them to mean their powers under the con- tract. The defenders' third plea, which is upon the relevancy of one of the reasons of reduction, requires no notice, beyond what I have taken of it in speaking of the alleged violation of the rules of procedure. Their only other plea is their first, that " the pursuer has no title to sue," which undoubtedly is pleadable at this stage, as a plea against satisfying the production, which the other pleas really are not. But unfortunately, this plea is hopeless on the face of it. The action may be good or bad, but undoubtedly the pursuer, and he only has a title to sue it ; his in- terests, and his only, are involved in it ; and were it not that the defenders seem to attach some obscure and subtle meaning to the plea connected with the merits of the action, I should be for repelling it out and out. But I think it better to repel all the defences in so far only as they are pleaded as defences against satisfying the production, reserving their effect quoad ultra, as your Lordship proposes. To that extent and effect I have no hesitation in concurring in the judgment. The Court pronounced the following interlocutor :— " Eepel the defences as defences against satisfying the production, reserving them quoad ultra, and decern ; and remit the conjoined actions to Lord Jerviswoode to assign a term for satisfying the pro- duction, and to proceed farther in the conjoined actions as to his Lordship shall seem just : Find the defenders liable to the pursuer in the expenses incurred by him in both the conjoined actions since the date of lodging the preliminary defences in both actions : AUow an account or accounts," etc. J. MoNTGOMEEiE Stacby, S.S.C. — JAMES Ckawfom) Jud., W.S. — Agents. 118 LEADING ECCLESIASTICAL CASES July 19, 1861. John M'Mllan, Pursuer. — Macfarlane — Fraser — Dundas Grant. The General Assembly of the Free Church of Scotland, Defenders. — Yowng — A. B. Glwrk. The Bev. Dr. Alexander Beith and others, Defenders. — Sol.-Gen. Maitland — N. C. Campbell. First Division. — Lord Jerviswoode. Church — Dissenting Estahlishment — Reduction — Jurisdiction. — Held {aff. judgment of Lord Jerviswoode) that sentences of suspension and deposition pronounced by a voluntary religious association against one of its ministers were not such spiritual acts as could not competently be taken cognisance of by the Civil Court ; and that an action of reduction and damages against the General Assembly of the association, and certain individual members, on the allegation that such sentences had been irregularly pronounced, in excess of their powers, and in violation of the conditions which regulated the pro- ceedings of the association amongst themselves, and which were alleged to form a contract amongst the members of the association, was competent ; — and inquiry into the constitution and regulations of the body directed. See December 23, 1859 (supra, p. 63). In the conjoined actions of reduction and damages at the instance of John M'MUlan against the Free Church, and the moderator and principal clerk as representing the Assembly, and against Dr. Beith, moderator. Dr. Candlish, and Professor Bannerman, as members of the said Assembly, and as individuals, the Court, on 23d December 1869j repelled the defences against satisfying the production, reserving them qux)ad ultra, and remitted to the Lord Ordinary to proceed with the cause. On 31st January 1860 the following minute was lodged : — ClarJc, for the said defenders, stated : — " In obedience to the above interlocutor, and without prejudice to his pleas against the competency of the Court to review the judgments and sentences complained of, that he produced as per inventory, volume v. of the Records of the General Assembly of the Free Church of Scotland, which contains the judgments and sentences called for. He further stated that the said volume was the current volume in which the proceedings of the General Assembly of 1859 were in the course of being recorded, and he craved that the production should be held as satisfied, and that the said de- fenders should be allowed to borrow up and retain the said volume, they undertaking, as they hereby do, to make the same forthcoming whenever the Court should so order on cause shewn by the pursuer." The production was then held as satisfied, and a record was made up and closed. The pursuer narrated that he had been appointed parish minister of Ballachulish in 1828, but had seceded in 1843 with the body that called themselves the Free Church of Scotland, and became minister of DECIDED IN THE COUET OF SESSION. 119 the Free Church of Cardross. (Cond. 2.) That his emoluments amounted to £214 a year, viz., from the sustentation fund, £138; manse valued at £25 ; clerkship of the Free Synod of Glasgow and Ayr, £40, besides £11 derived from other sources. (Cond. 3.) "The ministers and members of the Free Church of Scotland adopted and became bound by certain articles and heads of agreement and associa- tion, which were embodied in several writings, viz., 1st, A writing called a ' Claim, Declaration, and Protest anent the encroachments of the Court of Session,' dated May 30, 1842 ; 2d, The writing called a ' Protest,' which is dated on the back thereof the 18th May 1843 ; and 3d, A writing called ' an Act of Separation and Deed of Demission,' dated the 23d May 1843, and recorded in the books of Council and Session 8th June 1843. According to these writings, the ministers and members of the Free Church recognised and adhered to the consti- tution and whole standards of the Church of Scotland, except in so far as they were thereby modified ; and the constitution, acts, and stand- ards of the Church of Scotland constitute accordingly the constitution, acts, and standards of the Free Church, and by which the affairs of the latter body are now regulated and managed. The aforesaid three writings, and the said constitution, acts, and standards, formed the contract or constitution under which the ministers, including the pur- suer, and the members of the Free Church, associated and bound them- selves." To which it was answered : — " The writings here mentioned are referred to for their terms. Quoad ultra denied, under reference to the defenders' statement." He then narrated (Cond. 5) what he main- tained to be the correct procedure in case of libel, from the structure of the libel to the final deliverance by the General Assembly, conclud- ing his averment thus : — " Such was and is the law and practice of the Established Church of Scotland, the constitution and standards of which have been made part of the contract or constitution of the Free Church as before mentioned, and such also has been the law and practice of the Free Church itself since the Disruption." To which the defenders answered : — " This article does not correctly set forth the forms of pro- cess in the Free Church, and is denied. Explained that the forms of pro- cess do not form any part of the constitution of the Church." He then narrated the proceedings in his own case, characterising those connected with his suspension as utterly incompetent, illegal, and in excess of the powers of the General Assembly, and alleging in regard to his deposi- tion (Cond. 21), "The said deposition, sentence, or proceeding, was altogether lawless and unjust. It was a gross and flagrant violation of the contract or constitution of the Free Church, under which the pur- suer held his office and emoluments as Free Church minister at Car- dross, as also his foresaid office of clerk to the Synod of Glasgow and Ayr. The said meeting or Assembly by which the pursuer was deposed, acted entirely beyond its competency, and in excess of its powers ; and in promoting and bringing about the said deposition as aforesaid, the defenders, the Eev. Drs. Beitli, Candlish, and Bannerman, were actu- ated by malice and ill-will towards the pursuer, and their conduct was altogether without probable or reasonable cause." 120 LEADING ECCLESIASTICAL CASES The defenders stated that the Free Church and its ministers are supported wholly by the voluntary contributions of the members of the church. (Stat. 3.) "The Free Church of Scotland originated in 1843 by the separation from the Establishment of a large body of the ministers and members thereof, who adhered to the Free Church. They renounced the benefits of the Establishment, but they adhered to and recognised the whole standards and acts of the Established Church, except in so far as these are modified by acts of the General Assembly of the Free Church. They separated from the Establishment on the ground of the Civil Courts interfering with and (as they believed) encroaching on the jurisdiction of the church in matters spiritual. In consequence of that interference and encroachment, the Assembly of the Established Church, in May 1842, resolved and agreed upon a Claim, Declaration, and Protest, for the purpose, inter alia, of stating the nature and extent of the jurisdiction which the church claimed to exercise over its members, and the protest of the church against the encroachments of the Civil Courts. The said Claim, Declaration, and Protest is referred to for its terms, and is held as repeated hrevitatis causa. It refers to and adopts the Act of Assembly 1682, whereby it is declared — ' That none being received to an ecclesiastical office or benefice seek any way by the civil power to exempt and withdraw themselves from the jurisdiction of the kirk, nor procure, obtain, or use any letters or charges, either by themselves or any others in their name, or at their command or instance, to impair, hurt, or stay the said jurisdiction, discipline, correction of manners, or punishment of their oflfences and enormities, nor to make any appellation from the General Assembly to stop the discipline and order of ecclesiastical policy and jurisdiction granted by God's Word to the office-bearers within the said kirk, under the pain of excommunication, summarily, and without any process or admonition, to be pronounced by the judgments of the eldership, by minister or ministers to be appointed by them thereto, how soon it is known that any one of the said heads is transgressed.'" To this the pursuer answered: — "The secession ■and constitution of the association called the Free Church, and their recognition of the whole standards and acts of the Establishment, as also the subsequent acts of the General Assembly, are admitted under reference to the statement by the pursuer in his revised condescendence. Qmad ultra denied." They then referred to the Act of Separation and Deed of Demission, and to the Formula signed by the pursuer on his induction at Cardross, and averred (Stat. 7.) " It is part of the consti- tution of the Free Church, as a church of Christ, that through its courts it has and shall have exclusive jurisdiction in all questions of discipline, or affecting the propriety of the conduct of its ministers and other office-bearers, and in all matters spiritual, including all matters relating, to their admission to office, as well as to their suspension and depriva- tion therefrom ; that the judicatories of the church shall be the exclusive interpreters of its laws; that the office-bearers and members of the church shall, in all such questions, and in all matters spiritual, including as aforesaid, abide by, and submit to the sentences pronounced by the DECIDED IN THE COURT OF SESSION. 121 Church Courts, and that they shall in no case and in no circumstances apply to the Civil Courts for a review or suspension of such sentences. It is a flagrant breach of the constitution, subversive of the church, a direct contempt of her courts, and a high ecclesiastical offence, for any of&ce-bearer or member of the church to make such an application to the Civil Courts." (Ans. 7.) "Denied, and reference is made to the condescendence." (Stat. 8.) " Everj' minister of the Free Church, by the fact of becoming and continuing such minister, voluntarily subjects himself to the jurisdiction of the courts of the said church, in all matters connected with the government and discipline of said church as a church of Christ; and every such minister believes and avows that it is a church of Christ, and that the government and discipline thereof, as such, are vested in its courts, to which accordingly the whole members of the church, including the ministers thereof, are sub- ject. Besides kirk-sessions, which it is unnecessary here to refer to, these courts consist of Presbyteries, Synods, and General Assemblies." To which the pursuer answered : — " Admitted that every minister of the Free Church, as such, becomes subject to the meetings called Presbyteries, Synods, and Assemblies, but under this qualification, that the subjection is only according to the contract or constitution under, and in reference to, which they exist and are bound together, and as explained in the revised condescendence. Admitted also that the Free Church is a church, or congregation of persons, professing the Christian religion. In all other respects denied." After narrating the proceedings in the Courts of the Free Church in .regard to the pursuer, their concluding averments were (Stat. 16.) " The fund referred to by the pursuer, and called ' the Sustentation Fund,' consists entirely of voluntary contributions made by the ad- herents of the Free Church. It is subscribed annually, and the contri- butions are made only for such as are in each year ordained and officiating pastors of congregations in connection with the Free Church." (Stat. 17.) "The Free Church manse of Cardross is vested in certain trustees for the use of the minister of the Free Church of Cardross, being a minister authorised or appointed by the body, or united body, of Christians called the Free Church, acting through their Courts, con- form to trust-deed, which is referred to for its terms, and held as re- peated. By that deed it is provided that whensoever any person holding such authority or appointment, and enjoying the permission and sufferance foresaid, shall, by a sentence of the said body, or united body, of Christians pronounced by one or other of its Presbyteries, Provincial Synods, or by its General Assembly, or Commission of such Assembly for the time being, or in any other way or manner in use in such matters for the time, by the said body, or united body, of Chris- tians, be deposed, or suspended from ofiice, or cut off from the said body, or united body, of Christians, or declared no longer a minister thereof, his authority and appointment foresaid shall ipso facto cease and determine ; and the said trustees or trustee acting for the time shall not only be no longer bound, but be no longer entitled, to per- mit or suffer him to use or dwell in said manse, and shall be bound and 122 LEADING ECCLESIASTICAL CASES obliged to debar him therefrom. The deed is referred to for its terms." (Stat. 18.) " The Synod clerk is appointed by the Synod, and, accord- ing to the constitution and practice of the Free Church and its Courts, that office is held at the pleasure of the Synod. The Synod of Glasgow and Ayr, on 16th June 1858, withdrew from the pursuer the appointment which he had held as their clerk." (Stat. 19.) "The General Assembly of the Free Church is elected in each year, and a moderator is elected for each Assembly. The Assembly is not possessed of any funds or estate, nor do the moderator or clerks of the Assembly hold any funds or estate for behoof of the Assembly." The pleas of parties were as follows : — For the pursuer: — 1. This action having already been found com- petent and maintainable, and the defenders' preliminary pleas to the contrary having been repelled, the same, or similar pleas, cannot now be entertained or given any effect to in this Court. 2. The acts of suspen- sion and deposition of the pursuer, along with the relative deliverances or sentences, and whole proceedings now challenged and complained of, being, in the circumstances and for the reasons condescended on, illegal, and in gross violation of the contract or constitution of the Free Church association, and ultra vires of the defenders, the pursuer, who has been most deeply and seriously injured by these acts and proceedings, has a good and sufficient right, title, and interest to have them reduced and set aside as concluded for. 3. The acts and proceedings challenged and complained of, being, in the circumstances and for the reasons condescended on, illegal, and in gross violation of the contract or con- stitution of the Free Church, and yitra vires of the defenders, they ought to be reduced and set aside ; separatim, at least they ought to be reduced and set aside in so far as they are or can be founded on as a bar to his obtaining reparation and damages as concluded for. 4. The pursuer having through, and in consequence of, the proceedings challenged and complained of, been most deeply and seriously injured by the defenders in his feelings, character, and patrimonial interests, he is entitled to reparation from the defenders, or some of them, as concluded for. 5. The defence stated, to the effect that the acts and proceedings com- plained of are of a spiritual character, being unfounded, they ought to be repelled ; and even though it should be held that such is the character of the defenders' acts, these acts are not thereby exempted from inquiry into their legaUty in this Court, and they cannot stand if they can be shown to be beyond the powers and duties of the defenders, and in violation of the contract or constitution which they, as well as the pursuer, are bound by. 6. A sentence of punishment by the Free Church against the pursuer merely in respect of his having applied for redress to the supreme court of justice, is a flagrant usurpation of power and gross oppression, against which the pursuer is, according to the common law of the land, entitled to protection. 7. The act charged as an offence against the pursuer, and which formed the ground of his deposi- tion, was not an act for which he could be punished, it being the right of all the lieges, under the law and constitution of the country, to seek protection against alleged wrong by application to a court of justice ; DECIDED m THE COUET OF SESSION. 123 and hence the punishment, in respect of such an act, by deprivation of offices existing in virtue and under authority of law, is wholly illegal and incompetent. 8. The allegation by the defenders, to the effect that, by the contract or constitution of the Free Church, any application by the pursuer to the Civil Court was excluded and debarred, not being true in point of fact, the plea founded thereon ought to be repelled ; and esto that the said allegation were true, any plea founded thereon, to the effect stated by the defenders, could not be recognised or given effect to, as the same would, on the assumption stated, be founded on a padtim illicitum, contrary to the law of Scotland. 9. In the circum- stances stated, the pursuer is entitled to decree as concluded for ; and the defences being unfounded, untenable, and irrelevant, ought to be repelled. For the General Assembly of the Free Church : — 1. The sentences complained of being spiritual acts, done in the ordinary course of discip- line by a Christian church tolerated and protected by law, it is not competent for the Civil Court to reduce them, and the actions should therefore be dismissed. 2. The pursuer, by becoming and continuing a minister of the Free Church, and by having voluntarily acknowledged and submitted himself to its authority in spiritual matters as final, cannot maintain the present actions, which should therefore be dis- missed. 3. As the actions, in so far as they conclude for reduction of the sentences complained of, do not relate to any question of civil right, the actions cannot be maintained. 4. No statement sufficient in law to support the conclusion for damages against the defenders, or any of them, is set forth on record. 5. As the sentences complained of were pronounced in the exercise of the authority belonging to the Courts of the Free Church, as acknowledged by its members, and to which authority the pursuer had subjected himself, no decree for damages can be pronounced. 6. The General Assembly of the Free Church cannot as such be subjected in damages, nor can any decree for money be pronounced against it in the first action. More particularly, the Gene- ral Assembly of said Church which met in 1858, cannot as such be subjected in damages, nor can any decree for money be pronounced against it in the first action. 7. The moderator and clerks of the said Assembly are not responsible for the acts and proceedings of the Assembly, and cannot be subjected in damages in respect of such acts and proceedings, as representing the Assembly or otherwise. For Dr. Beith and others : — 1. The sentence complained of being a spiritual act, done in the course of discipline by a Christian church tolerated and protected by law, it is not competent for the Civil Court to reduce it. 2. In any view, reduction is not a proper legal remedy against the sentence complained of. 3. The pursuer, by becoming and continuing a minister of the Free Church, and by having voluntarily acknowledged and submitted himself to its authority as final in spiritual matters, cannot maintain the present action. 4. As the sentence sought to be reduced does not relate to any question of civil right, but only to a spiritual office, the conclusion for reduction cannot be entertained. 5. The statements in the summons are not sufficient in law to support 124 LEADING ECCLESIASTICAL CASES the conclusion for damages and solatium against the individual defenders, or any of them. 6. The defenders, having acted within the line of their duty and competency as members and ofiice-bearers of the church under whose authority the case fell, are not liable to the pursuer in damages or solatium. 7. The claim for damages and solatium being groundless, the individual defenders are entitled to be assoilzied there- from. On 13th November 1860 the Lord Ordinary pronounced the fol- lowing interlocutor : — " Eepels the 1st and 3d pleas in law stated on behalf of the defenders, the General Assembly of the Free Church of Scotland, and the office-bearers thereof, and also the 1st, 2d, and 4th pleas in law stated in defence for the Eev. Dr. Alexander Beith and others, as individuals ; and, further, in respect that the parties are not agreed as to the terms of the constitution of the said Free Church of Scotland, and as to other matters of fact material to the issue raised under the record, an'd the pleas in law, other than those hereby disposed of, appoints the cause to be enrolled, that parties may be heard in regard to the manner and form in which probation is to proceed as to such matters ; reserving entire the pleas of parties, excepting in so far as expressly dealt with by the present interlocutor, and reserving also all questions of expenses."^ 1 11 UoTB. — In the course of the full discussion whicli took place before the Lord Ordinary, it was maintained, on the part of the pursuer, that the judgment of the Court of the 23d December last (1859), repelling the defences, as defences against satisfying the production, was in effect a judgment finally disposing of those pleas stated for the defenders, the object of which was to exclude all review or inquiry by this Court into the merits of the sentences complained of ; that, consequently, the defenders could not now repeat these or similar pleas, and that the only appropriate course in the stage at which the cause had now arrived was to order issues to be lodged, with a view to probation on the merits of the conjoined actions. " On the other hand, the respective defenders pleaded that the reservation, cou- tsiined in the interlocutor in question, being couched in general terms, warranted them to repeat the defences thereby dealt with, for reconsideration by the Court in connection with the merits of the actions. " It has appeared to the Lord Ordinary, with reference to the terms of the interlocutor of the Court, that the contention of the defenders is at least technically correct, and that they are not now precluded from stating, nor of course from sup- porting in argument, those pleas to which the reservation bears reference ; and he has, therefore, not hesitated in holding that he was bound to hear, and to deal with, those pleas in defence which, by the prefixed interlocutor, he has now repelled, and which, although somewhat altered in phraseology, are in substance embraced within the pleas to which the reservation made by the Court was directly applicable. "The Lord Ordinary has, however, hesitated whether or not, having so heard counsel, he ought, as argued for the pursuer, now to have remitted the case for immediate probation, or to have pronounced a judgment on those pleas for the de- fence, which, if sustained, would exclude inquiry into the merits of the proceedings here complained of by the pursuer. He has taken the latter course, prompted mainly by the consideration that, if the argument of the defenders on this branch of the discussion be well founded, and that, consequently, the proceedings here challenged relate to a matter with the merits of which this Court has no authority to interfere, it would, as he thinks, be inexpedient that the Court should embark iu the inquiry now sought, without first determining that question of power. DECIDED IN THE GOUET OF SESSION. 125 The defenders reclaimed. For the Greneral Assembly it was pleaded : — The decrees sought to " The argument addressed to the Lord Ordinary in support of the pleas in de- fence now referred to, appears to him to be divisible into two leading branches, — the one relating to the more general question, whether, independent of and separate from the particular provisions of the constitution of the Free Church, the subject-matter of this action be one upon the merits of which this Court can competently enter; and the other to the terms of that constitution, and thus involving the more special consideration, whether or not the pursuer, as bound by the constitution, is barred by its provisions from having recourse to the Civil Courts for the remedy here sought by him. "It will be seen from the prefixed interlocutor that the former of these has alone been dealt with by the Lord Ordinary as respects matter of judgment and expre-ss finding ; and that, as respects the latter, he desiderates further inquiry and information. "The pleas in law for the defenders, which the Lord Ordinary has repelled, purport to have reference solely to the conclusions of the summonses for reduction of the sentences complained of, and appear to be framed with a view to limit the discussion under them to the competency of these reductive conclusions, apart from the further and consequent conclusions for damages. But, while the Lord Ordinary can see that this form of pleading has its use in so far as it tends to bring out prominently the position for which the defenders contend, he is of opinion that he cannot with propriety deal with the actions on this footing, but that he is bound, in judging of the questions before him, to look to the whole conclusions, and to the entire scope and character of these actions as laid, before he can deter- mine whether or not the matters embraced therein be such as the Court is entitled, and therefore boimd, to entertain. "Viewing the actions in this light, and laying aside for the moment the specialty founded on by the defenders, that the second action contains no conclusion for damages against certain of the defenders called therein, it appears to the Lord Ordinary that the reductive conclusions of the summonses are not intended, and ought not to be taken as standing alone, and that they must be treated in connec- tion with, and as truly inductive to, the conclusions for pecuniary reparation which follow. So reading the summonses, it is apparent that the pursuer comes into Court under them, seeking civil reparation as against certain acts alleged by him to be wrongous. These acts consist of sentences pronounced by the constituted authorities of the religious body of which he is a member. It would seem obvious that, were these sentences to stand unchallenged and unreduced, they might be pleaded in bar of any claim for reparation in respect of wrong alleged to be thereby suffered. The pursuer is thus driven to the necessity of challengiug these sentences ; and, as it humbly appears to the Lord Ordinary, the defenders have failed to show any sufficient ground of objection to the form of proceeding for so doing, which is here adopted, — and, if a competent, it appears to be equally a con- venient course, as the defenders are thereby called upon, and enabled at once to meet the pursuer on his leading ground of action, and to plead in defence either that the pursuer is personally barred from challenging the sentences in question, or that these are well founded on their merits, and to state all other relevant grounds of defence. How far any decree of reduction which the pursuer may obtain shall reach, is scarcely here the question. AH that the Court has now to consider is, whether or not the actions be maintainable to the effect of admitting inquiry. It may be, as remarked by the Lord President in his Lordship's opinion, as reported on the preliminary discussion, that the Court cannot reduce the sentences in ques- tion to every effect. But it does not follow that they may not be reducible to the effect of admitting that reparation which is here sought by the pursuer. 126 LEADING ECCLESIASTICAL CASES be reduced are those of a voluntary church, to whose authority the pursuer submitted. This was the first time that it had been attempted "Holding, then, that the pursuer has taken a competent course, and one truly necessary in point of form towards the assertion of his civil claim for reparation, the next question raised under the pleas in defence, with which the Lord Ordinary is now dealing, is, whether or not these sentences, pronounced by a Christian church tolerated by law, can be thus challenged in a civil court ? " It is said for the defenders that, apart altogether from the matter of agreement or contract, a church of Christ, constitutes, as s^ch, a body known to, and tolerated by, the law ; that it has, as a body, a known sphere of action, and that the law must respect and concede effect to the judgments of its authorities, acting within that sphere. " Taken in one sense, this statement is probably correct. But in another, and, as it appears to the Lord Ordinary, the more important sense, as bearing upon the question which he has here to decide, it is not so. A church, such as that spoken of, which is not established by law, but which exists under the wide toleration which the law affords, can be known to the law only in a general sense, as an association which, though formed for the highest and most sacred purposes for which human beings can combine, owes its existence to, and derives its powers from, the assent of its members. Therefore, as respects knowledge of the special constitution of such a church, or of the powers vested in the authorities which act within it, the law is necessarily at fault. The Lord Ordinary is not aware that there is any matter connected with the constitution of such a body which, so long as nothing is done contrary to the general law of the State, those who form the religious body or church may not competently deal with, modify, and regulate, according to their will. And if so, a court of law has no warrant to infer that the authorities of the Free Church of Scotland, or of any similar body, are vested with certain specific and determinate powers within the body, to which, in the event of question, it could, without proof or inquiry, give effect. " It necessarily follows that when, as here, a member of such a body challenges its acts as contrary to the constitution, the terms of that constitution, as forming the measure of the obligation among the members of the body, must be admitted or proved. To hold otherwise would truly be to deny to such an association that power to regulate its own constitution and to frame its own laws in which its Uherty consists. " The Lord Ordinary is relieved, in dealing with this branch of the question, by the reflection that it does not now for the first time form the subject of judicial con- sideration. The decision of the Court in the case of Dunbar ■». Skinner, March 3, 1849, whereby, adhering to the interlocutor of the Lord Ordinary (Ivory), their Lordships repelled the defence of privilege there pleaded by the defender, and sus- tained the competency of the action, and the jurisdiction of the Court to try the same, appears to the Lord Ordinary to afford a precedent analogous in many points to the present question, and a guide which he could not. have disregarded had it stood alone. The opinion of Lord FuUerton, as reported in that case, deals directly with the question now under consideration ; and unless the Lord Ordinary altogether misreads the opinions of their Lordships who advised the present case when the pre- liminary defences were under discussion, the views of Lord Fullerton on this point are by them substantially adopted. It is true, no doubt, that, under the reservation made by the Court, this question is, with others, left open for reconsideration. But as the Lord Ordinary has been unable to see that it has been presented to hiTn in circumstances materially different from those in which the Court had to consider it he would not be warranted to disregard opinions so expressed, and which appear in his humble judgment, to be consistent with the principles of law, as previously recognised. DECIDED IN THE COURT OF SESSION. 127 to set aside in the Civil Court the decrees of a voluntary church, and there were here none of those elements which on former occasions gave ' ' If, then, it be held, as the Lord Ordinary thinks it must be here, that the Court cannot refuse to enter on the inquiry sought by the pursuer, so far as to ascer- tain and examine the terms of the constitution of the particular church of which the parties are members, and which are here brought into question, the matter next for consideration is. What is the constitution of the Free Church of Scotland, by which, as forming the measure of the rights and obligations of its members, in any question with each other as such, or with the general body, the decision of the present question must be regulated ? " Both parties still appeal to that constitution : The pursuer, with a view to shew that the proceedings of which he complains are not warranted by, and are at variance with, its provisions ; the defenders, for the purpose of proving that the pursuer is thereby precluded from the present appeal to the Civil Court. " On this very important branch of the present case, and which was under the consideration of the Court in deaUng with the preliminary defences, their Lordships were then desirous of having more full information. But, so far as the Lord Ordi- ary has been enabled to discover, nothing very material has been since disclosed, or has been brought before him in such a shape as would entitle him at once to deal with .it, which was not before the Court on the occasion of the former discussion. The sentences complained of are, it is true, now formally produced ; but their terms do not throw such light on the question as to the power to pronounce them as, in the view of the Lord Ordinary, to remove the difficulty. On the other hand, the Lord Ordinary feels himself placed, as regards grounds for present judgment, in a position in some respects more disadvantageous than that of the Inner-House, when the question was argued under the preliminary defences. There, for the purposes of the discussion then raised, probation was renounced ; and thus, on the question sub- mitted as regarded matter of fact, the Court was in a position, had it seen fit, to deal with it, so far, as in a concluded case. But, as respects the questions with which the Lord Ordinary has now to deal, neither party has renounced probation ; and, although a suggestion was thrown out on the part of the pursuer in the course of the debate, that, as respected the terms of the constitution of the Church, such a, course might be again followed, this was not assented to or adopted on the part of the defenders. " The Lord Ordinary has, therefore, now to look to the averments of parties, and to the documents founded on or admitted by them. "With reference to these, it was pressed in argument on behalf of the defenders, that it clearly appeared ex fcuas of the constitution, even as admitted by the pursuer, that the Civil Courts were not, on any ground whatever, to interfere with ecclesiastical sentences ; and that, as such sentences had, before the separation from the Established Church, been set aside by the CivU Courts on the groxmd of an excess of jurisdiction on the part of the church, such ground of challenge should, under the constitution of the Free Church, be entirely excluded, and that no inquiry, even as to the alleged excess of power, should be competent in the courts of law. ' ' Had the Lord Ordinary seen this admitted, or plainly set forth in the documents which are admitted to form portions of the constitution of the Free Church, his duty here might have been comparatively a simple one. But he cannot say this is so, although he is by no means to be taken as saying that the terms of that constitution, so far as yet before him, excludes such an interpretation, or are incapable of being so explained by extraneous and additional proof of practice under it or otherwise. " Tha± facts are still unascertained which may have a material bearing upon this question, can scarcely admit of doubt. The contents of certain documents only are set forth, to which the parties appeal, as forming important and essential elements in the con^itution of the church. But it is set forth, even by the pursuer, that these 128 LEADING ECCLESIASTICAL CASES tWs Court power to control churcli sentences, and to reduce church decrees. There was no civil right necessarily or by any legal tie documents do, in their own terms, refer to the constitution and standards of the Church of Scotland as heretofore understood, except as modified by the writings specially condescended on, as heing imported into, or as having authority within the Free Church. But the constitution and standards of the Established Church are not fully set forth or admitted. Again, in support of the sentence of deposition com- plained of, reference is made by the defenders (Stat. 15) to the practice of the church, which is met by a denial on the part of the pursuer. ^ " It appears, therefore, to the Lord Ordinary, that he would not be justified in proceeding on any merely inferential interpretation of the documents already produced and founded on, while matters of fact bearing on this question, the importance of which cannot now be estimated, thus remain unascertained, and, consequently, that he ought to ensure that proof is exhausted or probation renounced before he shall pronounce any judgment founded on the terms of the constitution of the church. It may be right, however, as indicating the leading difficulty which has as yet presented itself to the Lord Ordinary on this branch of the subject, to explain that, while the documents produced appear to him to contain a distinct and strong protest against what was considered by the parties to them to be acts in excess of jurisdiction on the part of the courts of law in the instances set forth, and further to shew that, in the estimation of these parties, the civil power had interfered in matters of a character purely ecclesiastical, they do not equally or distinctly provide, in the event of the exercise of powers on the part of the ecclesiastical authorities of the Free Church itself, in excess of those committed to them under the constitution of the Church, that all remedy at common law against such excess shall be excluded. But if the view be correct which the Lord Ordinary has already taken as to the position which such a church occupies in the eye of the law, it would appear to follow, of necessity, that the exclusion of such common law right, if intended, must be provided in some distinct and unequivocal form. Here the pursuer denies the existence of the im- munity claimed for the defenders ; and, in the absence of conclusive evidence the other way, the Lord Ordinary, so viewing the matter, can see no alternative but to allow the investigation to proceed. " In what he has as yet said, the Lord Ordinary has drawn no distinction between the case of the Assembly of the Free Church as a body, and that of the individual defenders called under the second action, for whom a separate defence and argument have been submitted. He trusts he is not insensible to the ability and force with which the defence for those parties, alike with that of the leading defenders, has been maintained. But it has appeared to him that, although it be true that the defences for these parties are in some respects special, the questions raised under them can scarcely fail to be affected by the issue of the inquiry as to the terms of the con- stitution of the Free Church, and that it would consequently be premature to pro- nounce a judgment now, dealing with the special defences for these parties. " Again, as respects the special defence formerly adverted to, pleaded by the General Assembly of the Free Church and its oflce-bearers against the second action, that that action in particular cannot be maintained against the body, because the summons under which it commences contains no conclusion for damages against the body, it appears to the Lord Ordinary that the pursuer was warranted in chal- lenging the sentence of deposition with a view to support his claim for reparation against individual members, to call the body by which the sentence was pronounced, so that, if so advised, it might defend itsown act when thus impugned. But should this special ground be held insuflicient to support the action as against the Assembly and its office-bearers, the Lord Ordinary would still be prepared to hold that, in con- sistence with the views to which he has already given expression, he would not be warranted in throwing out the action in its present stage, even as respects these defenders. DECIDED IN THE COURT OF SESSION. 129 connected vdth holding the ministerial office, and there were no lay duties which the Ecclesiastical Courts of the country undertake to perform, and which made these courts amenable to the Civil Court.' What is asked is reduction in toto, and to be restored against the sentence in integrum. What other redress the pursuer may have against the continuance of the sentence it is not necessary now to consider. The only question now is, whether the pursuer is entitled to that redress which alone he asks 1 But this Court is not competent to reduce the sentence. The suspension was pronounced by the superior court of a body to which the pursuer belonged, and whose authority he acknowledged. It was pronounced exclusively in reference to spiritual things, and especially in reference to the congregation of Cardross, and with reference to a matter as to which the body who pronounced it were not only entitled but bound to inquire, viz., a matter of church discipline. The pursuer avers that it made an error in point of form, in having pronounced sentence on a matter which was not properly before it, and which by its own form of process it was not competent for it to dispose of, and he proposes to reduce that sentence on the ground that he shall establish as matter of fact that such was the form of process as he avers it to be. Surely that is asking this Court to sit in review of these proceedings, so that if the Assembly were to receive, as good evidence, evidence which was bad, or to reject as bad evidence, evidence which was good, this Court might competently review such proceeding. The principle is the same. Further, an appeal to the Civil Court was made by the constitution of the Free Church an offence summarily punishable, and the pursuer having signed the document which enacted that, is barred from now repudiating it. Further, there is no civil right here involved. The pursuer does not say who gave him his salary. It was not given him by the Free Church, but by the Sustentation Fund, and by the persons who choose to contribute to that fund. The pursuer only says that he held certain emoluments when he was minister of the Free Church, and in respect of the sentence he has been deprived of them. He also says he has been deprived of the office of clerk. But by whom ? By the Synod of Ayr, who conferred it. They may have so done in consequence of the sentence of the supreme tribunal of the church to which the pursuer belongs ; but that will not of itself give him right to reduce the sentence of the supreme tribunal. He may bring into the field the proper debtors in any civil obligation, but these are third parties to the General Assembly who pronounced the sentence in conformity " The Lord Ordinary must, in conclusion, explain that he has appointed parties to he heard in regard to the matter of prohation, because, while on the one hand the pursuer moved for an order for issues, he understood the counsel for the defenders, on the other hand, to object to that motion, and to any investigation by means of jury trial in the present position of the cause. And, as the course of procedure to be now adopted for the ascertainment of the disputed facts must be a matter of material in- terest to the parties, the Lord Ordinary has thought it right to afford to them an opportunity of being heard thereon, should they so desire." 1 1 Bell's Ap., p, 662 (2d Auchterarder case). K 130 LEADING ECCLESIASTICAL CASES •with the tenets of the church to which the pursuer belonged. Again, damages cannot be exacted from the General Assembly of 1858. That was a voluntary meeting of a few members of the church. When it was dissolved the component parts were scattered to the wind. -It was not a statutory meeting, and therefore damages might be asked as well against any other meeting. Membership of the Free Church imposes no obligation of civil right on the one hand, and on the other hand gives no civil right. In a question with the members of the church, it gives what is called church privileges, but nothing more. Any civil right must depend on some collateral right or contract. The office of minister is nothing more than a spiritual status within that particular body, but confers no civil right. A party having that status may have civU rights. But he can only possess them in virtue of a special contract. But if the office of minister does not of itself confer civil right, it -cannot be the subject of civil contract, any more than church membership. Undoubtedly within the church itself the office carries rights. But if these rights are not civil they must be vindicated within the church itself; and it is the law and policy of this country that courts of law shall not take cognisance of those rights. The pursuer, however, says he was by contract the minister of the church of Cardross, with certain temporalities as his reward for officiating as minister. But it is impossible to represent this action as an action upon that contract. It is not disputed that a contract between a congregation and minister may be the subject of action in this Court. That is a civil contract. It is not necessarily a spiritual one ; and in such an action to vindicate temporalities the Court may have to inquire into the fact whether or not the pursuer was ever de- posed from the ministry, and for that purpose to look into and examine the proceedings which are alleged to have deprived him of the status, which, according to the terms of the civil contract, is necessary to the continuance of his civil rights under it. But then that is only for the purpose of ascertaining the civU rights conferred by the contract, and no further. If on such an inquiry here the Court were to iind that the pursuer had been sought to be deprived of his status by the sentence of an Episcopalian bishop, or the General Assembly of the Established Church, the Court would disregard it, if this were an action on civU contract, and for the purpose of vindicating civil rights under it. This is not an action of that sort. It is a reduction of a sentence suspending the pursuer from the office of the holy ministry. Temporalities are only referred to for the purpose of shewing that civU rights under contracts with third parties may be affected by a spiritual sentence. But the thing complained of is a spiritual sentence. It is sought to be set aside because the existence of it may affect these civil rights under contracts with third parties. But that is totally different from an action under a civil contract to enforce a civU right. It does not follow because the loss of civil rights follows the loss of spiritual status that the spiritual status is itself a civil right. Prima facie the sentence of the church courts does not touch a civil right. It may possibly affect civil rights founded on civil contract. To the limited extent of DECIDED IN THE COUET OF SESSION. 131 inquiring whether it does or does not, the Court may inquire, but no further. Now, this is an action of damages against the General Assembly for pronouncing an efficacious sentence in regard to spiritual matters, against which this Court cannot restore the pursuer. It may be assumed that by that sentence the pursuer has been injured, aud has suffered damage. He has in consequence lost his situations and their tempo- ralities, but he has not suffered any legal wrong. The General Assembly is not answerable to this Court for withdrawing a mere spiritual status from anybody. There is no question here as to the authority of the Assembly. This is not like the case of Skinner v. Dunbar. The authority of the General Assembly is admitted — assuming that it was dealing with a purely spiritual matter, whatever civil consequences might foUow. But the Court is now asked to inquire into the regularity of these proceedings. The pursuer here wants damages against the General Assembly because they decided that an appeal was sufficient to bring before them what, if they had reasoned rightly, they could not have looked at ; and he makes this matter of contract. It is the necessity of the case that the spiritual body that conferred the status shall be the supreme judge in regard to that matter. Then, as to the sentence of deposition, it was the pleasure of those who had absolute power in the matter that the pursuer should be de- posed, and that is enough. It may be an extravagant view, but the Free Church hold it as an article of their creed that any one who comes to this Court in the way in which this pursuer did shall not remain a member of that Church. These are the views of this religious body, and they are not and cannot be matter of contract, and cannot form the subject of reduction for the purpose of giving damages against those who enforced them. Pleaded for Dr. Beith and others : — It is not said that in the pursuer's citation to attend the General Assembly any of these defenders were concerned. It is not said that Dr. Candlish uttered one word to recommend the motion to the Assembly, or said anything against the character of the pursuer, nor that Dr. Beith did so. The motion was unanimously agreed to. It is not said that there was any conspiracy against the pursuer. The offence with which the pursuer was charged was serious in the Free Church. It was contempt of court, and subver- sive of the principle on which the Free Church rests, and also of the Act 1582. The kind of procedure referred to in that Act is to be summary and without process, and the sentence is to be the highest which the church can pronounce, viz., excommunication. It was com- petent for the Assembly to deal with the offence, — no matter whether they decided rightly or wrongly in regard to it. And what is it that is charged against the moderator ? It is that he gave effect to the resolution of the Assembly. It is not said that he was present when any of these things were done ; but even if it were so averred, then he did nothing but his duty. He was there as the servant of the Assembly. If he only did his duty, then, although it should be averred that he did it maliciously, no damages will he. All persons in the 132 LEADING ECCLESIASTICAL OASES . exercise of judicial functions, are protected when they are wrong, for this reason, that they are made judges and have a discretion committed to them, and it is of no consequence whether the judge, derives his authority from the Crown or a Christian community.' A reduction was not necessary in order to found an action of damages. It is necessary where the judge derives his authority from the State, because there it is the law of the case. But here that is unnecessary, provided you have the averment that each individual against whom damages are claimed has acted from wilful and corrupt motives. This is truly a discussion on relevancy. This is a question with a dissenting church, whose sentence of deposition does not involve a question of civil right at all. What is to be the effect of the decree now asked for ? Is it to readmit the pursuer to the pulpit of his parish 1 If not, it is a fallacy to say that the sentence complained of is reduced and set aside. And what would be the status of the pursuer between the date of the sen- tence of deposition and of that decree 1 Would he, during that time, be a minister of the Free Church 1 Would he be so restored as to make him amenable to the jurisdiction of the Free Church for anything which he may have done during that interval ? If the conclusion cannot be carried out in its entirety, a modified view of it cannot be taken. It is said that a claim of damages is a civil matter. But the right to claim damages here must hang on the merits of that deposition, and therefore the Court cannot move a step in regard to damages without judging of that deposition. The damage is merely the remedy. There is here alleged to be a wrong, and that is the foundation of the damage. But all the damage arising from the loss of emoluments is consequential, or rather accidental. It is said that the Court is not asked to consider this deposition on its merits. The pursuer does not undertake to say whether he was innocent or guilty ; and the argument proceeds on the footing that, assuming that the pursuer was guilty, that will not justify the deposition, and still in respect thereof he shall get his damages. The case of the Ai-chbishop of Canterbury v. Poole,^ .clearly establishes the distinction between established and voluntary churches, and, without in the least supporting the view of ecclesiastical prerogative, this is a matter with which the civil law does not concern itself In regard to the question of malice, if the conclusion for damages is not well founded otherwise, the allegation of malice will not make any difference in re- gard to the present discussion. It can neither change the character nor subject of the present action. There is no averment of anything separate from the proceedings of the General Assembly. Besides, the averment of malice will not make a spiritual act civil. It was replied : — It was to be kept in mind that the case was only in its initiatory stage, and the Court could know nothing, and were not entitled to know anything of the constitution and the contract by which the pursuer and the defenders became bound and were linked together. 1 Moon V. Anderson, 25th February 1842, Session Reports, vol. iv. p. 786 ; Hamilton v. Anderson, 11th June 1856, Session Reports, vol. xviii. p. 1003, H. of L., 1st June 1858, 3 Macqueen, 363 ; Ferguson v. Kinnoul, 1 Bell's Ap., 662, ^ 27th January 1851, 20 Law Journal (Chancery), 113. DECIDED IN THE COURT OF SESSION. 133 The Court could only look at the allegations of the pursuer. The Free Church was nothing more than a private association tolerated by law. Its rules and constitution had yet to be investigated. But both parties appealed to them, and therefore, in order to do justice between the parties, it was absolutely indispensable that these rules and the consti- tution should be before the Court. The mode of investigation would be afterwards determined. At present, the only question was, whether or not there was to be any investigation. The argument for the defenders really amounted to this, that because they said the sentences complained of were spiritual acts, all investigation was to be excluded ; and being spiritual acts, their conduct was unassailable — no matter how flagrant their violation of the contract may have been. That reduced the case to a very limited and simple issue. But, on the other hand, it was to be understood that the pursuer did not ask this Court to consider the merits of the case that was before the Free Church Assembly. That was for that Assembly themselves to deal with. This Court could only interfere for the redress of civil rights. But both parties here ad- mitted there was a contract ; but a contract necessarily implied — for it imposed — certain obligations upon the parties to it, and it was incom- prehensible how there could be a violation of a contract without a violation of civil rights. At all events, the pursuer averred that, by the violation of it, he had suffered patrimonial wrong, such as this Court could take cognisance of ; and he set forth — (1) special damage, inas- much as a necessary consequence was, that he lost his living as minister of Cardross, and his clerkship to the Synod of Glasgow and Ayr ; (2) general damage, consequent upon his degradation, the disgrace to his character, and injury to his feelings. On the whole, it was contended, — " 1. The present action is maintained in respect of gross excess of powers and violation of contract on the part of the defenders, whereby the pursuer has suffered loss, injury, and damage in his civil rights and interests, and more especially whereby he has been wounded in his feelings, and disgraced in his character and status, and deprived of his means of living. " 2. The action contains no conclusion that the pursuer should be restored to his position as a minister of the Free Church, and he does not contend that the Court could either admit him into the holy oflSce of the ministry or suspend him from the office. " 3. The pursuer does not ask the Court to review the sentences or proceedings complained of on the merits, nor does he maintain that the Court could competently do so. " 4. Neither does the pursuer contend that his action should be sustained on the ground of any mere formal irregularity or defect in the proceedings complained of. His contention is that these proceed- ings must be held to be null and ineffectual in this Court, in respect that they were ultra vires of the defenders, a violation of the first principles of justice, and a gross breach of the contract or constitution which was binding alike on them and him. " 5. Finally, the pursuer does not maintain that the contract or 134 LEADING ECCLESIASTICAL CASES constitution under which he and the members of the Free Church associated themselves, is to be held as not binding on him, or that it is in any respect whatever to be disregarded by this Court in dealing with the present action. On the contrary, he unreservedly and un- qualifiedly admits that the contract or constitution of the Free Church, in so far as it is not contrary or repugnant to the law of the land, must be given full effect to." ' At advising, — Lord President (M'Neill). — In this case we are to dispose of the re- claiming notes presented against an interlocutor of Lord Jerviswoode, pro- nounced in the conjoiaed actions of reduction and damages raised by the Eev. John M'MiUan, one of them directed against the General Assembly of the Free Church and certain office-bearers, and the other against the same body, and against certain individual members of the body. The one of these actions^ — the one I first mentioned — which is directed against the General Assembly of the Free Church and its office-bearers, is an action arising out of a sentence of suspension pronounced by the General Assembly against Mr. M'MiUan ; and it concludes for the reduction of that sentence, and for damages. The other is an action raised by him against the Free Church Assembly, and against certain individual mem- bers, in respect of a sentence of deposition which was pronounced against him ; and in that action he seeks to reduce the sentence, and he seeks to obtain damages. The production has been satisfied, and the actions have been conjoined, and a record has been made up in the conjoined actions, and it was upon considering that record and hearing counsel upon it that Lord Jerviswoode pronounced the interlocutor which we are now consider- ing. The Assembly of the Free Church have reclaimed against that in- terlocutor on certain points, and three of the individuals against whom the second action was directed have also reclaimed. In these actions, which were raised by Mr. M'Millan, he alleges that the proceedings by which he was first suspended and afterwards deposed were not warranted by the constitution and rules of the association to which he belongs, and to which the rest of the defenders belong ; that the General Assembly of that body had no power to pronounce these sen- tences, and that they have been productive to him of great loss, injury, 1 Ersk. 4, 1, 18 ; Gibb v. -Baggot, 1st June 1827, 5 S., 739 (opinion of Lord Gillies) ; Ferguson v. Malcolm, 14th February 1850, Session Reports, vol. xii. p. 732 ; Ferguson v. M'Ewen, llth February 1852, Session Reports, vol. xiv. p. 457 ; Smith V. Presbytery of Auohterarder, llth December 1849, Session Reports, vol. xii. p. 296 ; Dunbar v. Presbytery of Auchterader, llth December 1849, Session Reports, vol. xii. p. 284; Swan v. Rauken, Diet. 13,495 ; Dunn v. Craig, llth March 1824, 2 S. and D., 797 ; Tait v. Patton, 19th Nov. 1825, 4 S., 211 ; Banks v. Smith, 29th June 1837, 9 S., 803 ; Wilson v. M'Lennan, H. of L., 4 W. and S., 398 ; Cruikshank v. Gordon, 10th March 1843, Session Reports, vol. v. p. 934; Knox's Works (Wodrow Society), 4, 461 ; Dauvers v. Rivaz, 29 Law Journal (Chancery), p. 685, 24th January 1860. DECIDED IN THE COUET OF SESSION. 135 and damage ; that he has suffered in his character and reputation, and in his patrimonial interests, in consequence of these sentences, and he seeks to have redress here in the form of reduction and damages. He appeals to the Court for redress, and he asks to have the sentences declared nuU and void, and he asks reparation, involving damages. The defenders deny the accuracy of the pursuer's allegations in point of fact ; and, in particular, they deny that the proceedings adopted by the defenders against the pursuer were not conformable to the constitution and rules of the association of which he was a member, and to which constitution and rules he had submitted, and had subjected himself. And the de- fenders further contend that, whether the proceedings were conformable to the constitution and rules of the association, or were in violation of the constitution and rules of the association, the actions cannot be main- tained in this Court, and ought to be dismissed. The pleas with which the Lord Ordinary has dealt are some of those which we have at pp. 29, 30, and 31 of the record. The first plea for the General Assembly is thus expressed : — " The sentences complained of being spiritual acts, done in the ordinary course of discipline, by a Christian church, tolerated and protected by law, it is not competent for the Civil Court to reduce them, and the action should therefore be dis- missed." And the third is, " As the actions, in so far as they conclude for reduction of the sentences complained of, do not relate to any question of civU right, the actions cannot be maintained." The pleas in the other case, in so far as the Lord Ordinary has disposed of them, are substantially the same. These pleas, it will be observed, have reference to the conclu- sions of reduction only, and to them the interlocutor of the Lord Ordinary now reclaimed against has been confined. There are other pleas appli- cable to the conclusions for damages. There is the second plea for the General Assembly, that the pursuer, "by becoming and continuing a minister of the Free Church, and having voluntarily acknowledged and submitted himself to its authority in spiritual matters as final, cannot maintain the present action, which should therefore be dismissed." There are also pleas to the same effect in the other case ; and there are, further, pleas for the individual defenders, in which they say the statements in the summons are not sufficient to support the conclusions of the action, and that, having acted in the line of their duty, they are not liable. These pleas the Lord Ordinary has not dealt with. The defenders submitted some argument upon them ; and upon the whole matter the defenders ask the Court to sustain their pleas and defences, and to dismiss the action. I cannot accede to that demand. I think that the interlocutor of the Lord Ordinary, so far as it goes, is right, and that the reclaiming notes fall to be refused. I shall state briefly the grounds of that opinion. 136 LEADma ECCLESIASTICAL CASES This question does not arise out of the proceedings of any established judicatory of the land, civil, criminal, or ecclesiastical — out of the pro- ceedings of any institution on which the State has conferred jurisdiction, or to which it has delegated power or authority of any kind. The ques- tion arises out of the proceedings of a voluntary association — a numerous body, certainly, of Christians — associated for purposes of religion — form- ing a religious society called, and perhaps not inappropriately, a church, though we could get no accurate definition of that word ; and it is a body of professed Christians, tolerated by law, and enjoying the protection of the law in the expression and promulgation of their religious opinions and doctrines, and in the performance and exercise of their religious rites. That body has a constitution and rules by which the society is governed, and to which its members have voluntarily subjected themselves ; and in so far as they have subjected themselves to these rules and to that constitution the Civil Courts will not hold that they are entitled to com- plain when these rules are observed, unless there is something in them contrary to the public law of the land. It is not necessary, in the view I take of this case at present, to go into the question whether any of these matters that are said on this side to form part of the rules of this associa- tion, and on the other not to be part of them, are of that character or not. It has certainly not been made out that they are. But this association, formed for that proper and laudable purpose, is an association which has temporalities as well as spiritualities. It has stipends, manses, offices of emolument, to the possession and enjoyment of which certain of its members are eligible. The status which constitutes that eligibility also is a status which commands respect and position in the world, and therefore it may be justly regarded by men of ability and piety as an object of ambition leading to honourable independence, and to the attainment of which, of course, many may be disposed or induced to devote their time and their talents, and their prospects in life. It is, in short, in that view, an honourable profession, and a means of liveli- hood, although, undoubtedly, piety and religious feeling may point the way to it and dictate the choice of that profession. But, in proportion to the time, and talent, and character required to obtain that position and that status, and the importance and respectability of that status, and the benefits derived from it, are the feelings, the poignant feelings, that must be entertained, and the misery and the ruin that must be created by being deprived of that status and of these interests. Now, I do not allude to these things for the purpose of raising any question as to the absolute power of this association to qualify or disqualify any of its members, and thereby either to cement or dissolve the link that unites them to the temporalities to which I have aUaded, or their power to strip them of the DECIDED IN THE COURT OF SESSION. 137 status and position to which I have referred ; but the fact that the existence of such interests depends upon the possession of that status, is, in my opinion, not immaterial with reference to the pleas of parties in this case. The pursuer avers that, according to the constitution and rules of this association — the General Assembly, which is the body possessing the greatest power according to the rules of that association — the General Assembly, in pronouncing the sentences in question, exceeded its powers, and violated the constitution and rules under which the pursuer placed himself when he was received into the association ; and that, by so doing, they subjected him necessarily to loss of emolument, and also subjected him to injury as regards his character and feelings. The parties are at variance as to the constitution and rules of the association. The state- ments made by them are totally opposed to each other. I do not detain your Lordships by going through the record, but they are absolutely con- tradictory of each other. "What is asserted by the one party is denied by the other, and the facts have not yet been investigated. The Lord Ordinary desires that they should be investigated ; and it is plain that, untH the facts are investigated, we cannot know whether the constitution and rules of the association have been violated or not, and whether the terms of the contract have or have not been broken by the defenders, to the injury of the pursuer. I cannot assent to the proposition which was contended for on the part of the defenders, that, whatever may have been the constitution and rules of this association, and however flagrantly they may have been violated by the Assembly, no redress can be obtained in the Civil Courts. I think that, for injury done by gross violation of the contract, redress may be given, and in the form in which it is asked — that is to say, in the form of damages ; and I think that there is no incompetency, but, on the contrary, that there is expediency in accompanying the claim for damages with a conclusion for reducing the sentence, and having it declared null and void. There is no proposal here to review this sentence on its merits, or to review it at all in any technical or proper sense of that term. The object is to have it declared null, and to have the pursuer reponed and restored against it. That conclusion, I apprehend, must be construed with reference to the objects of the action, and the powers of the court to which it is addressed. The Court may not have the power to repone and restore the pursuer to the ministry, but it does not thence follow that the Court may not repone and restore him to the effect of depriving the sentence of which he complains of any validity as an obstacle to the prosecution of his civil rights and interests, whatever they may be. It is contended for the defenders that, as the General Assembly had 138 LEADING ECCLESIASTICAL CASES absolute power to deprive him of the status of a minister, they cannot be made responsible for the consequence of the exercise of that power — that, having only exercised a lawful right, the pursuer, albeit he may have suffered damage thereby, has, nevertheless, sustained no legal injury or wrong. It appears to me that this proposition assumes rather too much that the defenders were exercising a lawful right. They were exercising an absolute and uncontrolled power, but the question of right as between them and him is another matter. At all events, I am not disposed to sustain the plea until I know whether that which is called a lawful right was exercised in a lawful manner. A party may, in the exercise of an absolute right, exercise it in an unlawful manner, so as to give a right of redress to the party against whom it is exercised. The pursuer says that this was not exercised in a lawful manner ; and that again depends on the provisions of the contract. It was argued that the Court would only inquire into the contract when it is appealed to in reference to its provisions as to temporalities, in an action laid upon those provisions, and demanding enforcement of them, or complaining of the violation of them, and that there is no such action here at present. There can be no such action here or anywhere, if the plea of the defenders is well founded. Their plea is, that the Civil Court has no power to interfere at all, and that the contract with them is not with them as to the civil interest of the party — ^is no contract by them, by which they mean as to the pecuniary advantages which it confers ; and that, if the party with whom he so contracts has violated the contract with them, he must seek redress against that party, and that the Court may disregard the sentence now complained of by these parties. But the case of the pursuer is, that the contract between him and the defenders — as to the compact into which they entered, and by which this association is bound together — the conditions on which he subjected himself to them — have been violated. This is his case ; and he says that, by a violation of the contract, and not by the exercise of the powers which he committed to these parties, they have disqualified and disabled him from fulfilling certain duties, and that they have inflicted serious wrong upon him by injuring his character, and destroying his usefulness, and his ability in future to do good for himself. Well, I cannot doubt that damages may be claimed if that is the result of a departure from the agreement between the parties, and a violation of the conditions of the contract which existed between them ; and if the injury to his character has flowed directly from that violation of the contract, it is no answer to say that there was an absolute power to pronounce this sentence in another way by which he could get no redress, or that there is an absolute power to keep him excluded from the functions of the ministry ; even that, I do not think, is any answer to the plea maintained DECIDED IN THE COURT OF SESSION. 139 by the pursuer. It always comes back to this, Has the pursuer sustained injury by the act of the defenders in violation of the agreement which they entered into with him ? Has that injury accrued to him in viola- tion of the agreement ? It may be that there was no violation of the agreement. It may be that the pursuer and other members of this association have submitted themselves absolutely to the uncontrolled power, or it may be the caprice, of other members of the association. It may be, as was contended on the part of the defenders, that they are entitled, without being called in question, to do what they like with any of the members — that is to say, that their rules are in no way binding upon themselves — they may be binding on the individual members, but not binding on the body ; that they are no protection to the individual members composing the association. If that shall be made out as part of the constitution of this body — if they are entitled at any time, as was the case put — if the General Assembly may any morning draw any ten names from the ballot-box and declare them to be no longer ministers of the body — for that was the legitimate consequence fairly admitted by the defenders — if that be part of the rules and constitution of this association, then this pursuer cannot obtain the redress which he asks, because he has submitted himself to such conditions and such control. But untU it is established that such is the contract — until we see what the contract is — untU. the pursuer shews that the contract has been violated — we cannot . take for granted either that it has or has not been violated. We must take the averments as they are made at present ; and when we see the results of the investigation,- which is what the Lord Ordinary has desired to inquire into, we shall then know how the case is to be further dealt with. If they could do that without violating their compact — if they could do all that is contended for — I think there would probably be an end of this case, unless there was something in it that was contrary to morality and propriety. One can fancy in. the contract of a body of this kind something which the law will not recognise at all. I do not say there is anything of the kind here. If there were, it might still be open to the pursuer to obtain redress. But I do not say whether that is so here. It is not necessary to go into that question now. Then there were certain pleas which were not dealt with by the Lord Ordinary. These pleas are directed more against the conclusion on the matter of damages. But these also, I think, cannot be dealt with satis- factorily until the constitution of this body is ascertained. Indeed, they are pointedly rested on the terms of the constitution by the defenders themselves. Then, again, in regard to the individual defenders, for whom it was pleaded that there is no allegation against them of malice and want of probable cause, and that they are not responsible for the acts of the 140 LEADING ECCLESIASTICAL CASES Assembly,- because they were only individual members of it, I am not mucb moved by that plea at this stage of the case. I want to see what are the facts of the case. It may be a question raised in an issue, if issues are to be adjusted ; or, if the facts are to be investigated without an issue, there may be a question raised as to the degree of privilege that any of these parties may have, but I do not think this is the stage for it. In short, I think that, so far as the Lord Ordinary has gone, he has gone in the right direction, and that his interlocutor should be adhered to, and that the case should go back to him in order that the facts may be further ascertained. Lord Ivory. — I have on more than one occasion, in dealing with this case, called the attention of the Court to a peculiarity in the procedure which I deem of very great importance. It has never yet been thought right by the Court to deal with that matter, but as it appears to me to enter deeply into the validity and regularity of the process, I feel it to be my duty, although perhaps at the risk of the imputation of being a little obstinate in my own view with reference to it, to bring it before your Lordships' notice. The whole pleadings in this case for the defenders, au J the instance of the action on the part of the pursuer, are directed for or against the Free Church of Scotland and its Assembly. I cannot look back to the case in the Episcopalian Church of Mr. Abernethy Drummond,^ who brought an action in regard to getting some obligation with reference to a manse, etc., carried out, in the name of a bishop of the Episcopalian Church, without being satisfied that the Free Church, under the designa- tion which has been employed against them, and under which they are pleading, is not a nomen juris which the Court can or ought to sustain. In Mr. Drummond's case the Court, ex propria motu, took the objection that, in the name of a bishop of the Episcopalian Church (there are certain statutes which have since rendered that designation less objectionable than it was then), he had no persona standi, and they directed the designation to be struck out. Fortunately, there were other matters within the cause that did not allow that to destroy the action, and it went on ; but here we have not yet dealt with the matter at all, and I feel it my duty to bring it before your Lordships' notice, it appearing to myself that the Free Church has no persona standi, that they ought not to be allowed to plead under that name, and that the Court should give them no recognition whatever as an established body under that designation. Having said this, I now leave the remark to receive such fate as it deserves. With reference to the merits of the case, I may just say, almost in a single word, that I look upon the matter, as it is now before the Court — 1 6th July 1809, F. C. DECIDED IN THE COURT OF SESSION. 141 upon tte preliminary and incidental point, wticli alone the Lord Ordinary- lias dealt with — as standing very much in the same position in ■which it stood when, before the production was satisfied, we had occasion to inves- tigate the same pleas that have since been more fully argued, and to dis- pose of that question of the liability of the defenders to satisfy the production upon the grounds which have again been maintained for them against the jurisdiction and the competency of the Court to deal with this case. I have not seen occasion to alter, in any respect, the opinion which I then gave. It appeared to me that the question of what was the consti- tution of this Church lay at the bottom of the whole of that matter, and that it was impossible, with any satisfaction or safety, to deal with the question which was raised then, or with the question which is raised now, whilst that question of the constitution of this body was not completely settled — that, in short, we could not know what we were to address our- selves to until we had the facts clearly ascertained in regard to that matter. Perhaps with that observation I might content myself with saying that I adhere substantially to the grounds and reasoning on which your Lord- ship has arrived at the conclusion that this interlocutor ought to be adhered to. But I will not so deal with it in a question of this im- portance, but will, as briefly as I can, state the grounds which appear to me to justify that result. Before proceeding to do so, I may take the liberty of expressing my surprise that this question has given rise to so much feeling and temper^ as it is impossible to live in this country with- out perceiving that it has been attended with, in the different sections of the public mind. It seems to me an absolute delusion on the part of the members of the Free Church to speak of the interference of this Court in these proceedings as implying in the most distant degree an interference with the freedom of religious opinion or religious status in congregations or other . combined bodies — as interfering in the slightest degree with their full and perfect freedom of action and toleration. The Free Church on this question is in precisely the same predicament with any other dis- senting church, and it is not necessary that that church should be a Christian church in order to entitle them to the freedom and toleration which the law of this country gives to all bodies associated in such a manner, so long as they do not interfere with or infringe the public law of the land. It is a very broad question, and it is impossible to approach it without seeing the necessity and the propriety of watching over the principles upon which such questions are to be dealt with, because justice demands that the same course shall be followed, and the same judgment pronounced, in regard to the rights of other tolerated bodies as in regard to the rights of this tolerated Free Church, 142 LEADING ECCLESIASTICAL CASES Now, with reference to one and to all, I beg, for my own part, that I be distinctly understood as recognising the fullest right in the Free- Church, and other dissenting churches, to deal with their own constitution. They are free within themselves to frame their constitution, and to set forth its principles and its limits, and to point out the duties and the course of conduct to be expected within the association. They may hold their own opinions, they may settle their own doctrines, they may regu- late their discipline, they may regulate the appointment and the deposition of their officers. They may make what nobody will object to call their own judicatories, and in certain respects they are entitled also to settle and regulate their own forms of proceeding. AU this they may do in the most complete manner ; and when they have done so, if they will only add the virtue of remaining together, and not differing and contending with each other, they have the power of doing everything which any person whatever ought to wish in a free land to be entitled to do. They may also pronounce their sentences and decrees, and if they pronounce them within the powers given by the constitution, no man will interfere with them or say that they have done wrong. But if they are not con- forming to the constitution, — if they act against the powers which they have vested in their judicatories, — if their sentences are pronounced by those who are not judicatories to that effect, it is a very different affair. Then what has been so done wUl have been done against law, wiU have been done so far against law that this Court must be entitled to interfere, and it wUl do so, because such proceedings will be an infringement and viola- tion of the constitution, without which they cannot exist as a body at all. The moment they proceed beyond the powers vested in their officers, who- ever these officers may be, within their courts, whatever may be the decrees of subordination and succession of the tribunals, the moment they go beyond the constitution they are acting ultra vires, they are acting in breach of their own solemn compact, and the proceedings which they thus perform may be quashed, and declared to be void. Their sentences and decrees in such a case wUl not be reviewed upon their merits. That has never been hinted at. It has never been attempted ; it would be beyond the jurisdiction of this Court or of any other Court to interfere as to that. But, apart from that, the sentence may be bad, for reasons of inherent invalidity, as well as for unsoundness in the reason- ings upon which it is propounded. But if the parties have power by the constitution to deal with the question, and if they deal with it in the manner pointed out by their constitution, then, although they may err in the conclusions to which they may come, although they may err in the amount of proof with which they are satisfied, or although, in any other manner, they may pronounce an erroneous and unsatisfactory judgment, DECIDED IN THE COUET OF SESSION. 143 being withia their power, 'being within that which the defender in the case has submitted to bear at their hands, it will not be interfered with. ^,, There has, in the course of this discussion, been a remark, oftentimes repeated, that in regard to matter of process every judicatory is entitled to enforce its own rules,- and that what they do iu that respect is not re- viewable at all. That is partly true, and partly not so. The case of Lockhart is a clear case. That was a case within the Established Church, and it must be kept in mind that the Established Church and its judica- tories form a recognised institution of the land — that the judicatories are of the description which exercise jurisdiction by authority of the country ^that their courts are supreme and independent courts in ecclesiastical matters — that they are just as much supreme as the Justiciary Court is in regard to criminal questions, or this Court in regard to civU questions — and, therefore, as every independent judicatory has inherent within it- self the power of doing all which is necessary to follow out its proper jurisdiction, they may make their own forms of proceeding, and no other court can interfere, because no other court is more independent than themselves, and while they are proceeding within their proper functions, they are as supreme as this Court. But there is this important distinction in the present case, and I do not think it should be overlooked — it is too much overlooked, I am afraid, by these defenders, — that even in the matter of process they have no jurisdiction. In the proper sense of the term they have none, but in the matter of process they have no power, and no jurisdiction, and no right to make rules ; and these rules, when made, have no other authority than by the constitution consented to by all the parties, and made effectual in consequence of the agreement of the individuals composing that body. It is that that is the measure of the form of process ; and if, in the body of the constitution, it is expressed in distinct and intelligible terms what are the forms of process, then the members of the Church are entitled to have these forms followed out as much in regard to process as in regard to anything else.. The measure of everything in a voluntary society is this, that the parties have gone throughout under the permission of the law, and embodied them- selves together on certain conditions ; and, with the form of proceedings, or the nature of the judicatories, or the course of appeal and review, or any other thing, definitively set down in that constitution, anything which goes against what is so set down is an infringement of the compact, is a breach of the contract, and it is not a thing that can be defended on the sic volo sic juheo of the body. I have thought it right to say so much, because I think it is a sad thing to see so much misunderstanding and misapprehension, if not something stronger, existing so widely and spread- ing so far on a question of this sort, where there should have been a more Christian temper manifested. 144 LEADING ECCLESIASTICAL CASES I have done -with that part of my observations, and I now come to the matter of spiritualities. That word has heen vaguely, indefinitely, and I think somewhat loosely employed. I am not sure that the parties have assigned any very definite meaning to it in various portions of the discussion that has taken place. Sometimes, and more in the beginning of the cause than in the more recent parts of it, it was mixed up with the power of the keys, with the notion of a Divine Head, and with the tribunals being only answerable under extreme doctrines, which we have nothing to do with in the present legal question. They may hold all these opinions, and give effect to them within their own body. An Erastian body wUl have other notions on the subject — they may have a dif- ferent constitution, and they wUl give efiect to their views within their body. The Catholic Church will, in like manner, have different notions upon aU of these subjects, and they will be entitled to follow out within themselves those notions of theirs just as much as the other ■ bodies. Unitarians, who are not a Christian church at all, or Mussulmans, if there be any such persuasion here, may equally do the same. And Jews — for we have Synagogues amongst us here — and others, have the same freedom of dealing with their own body on their own agreed-on constitution. Well, but that is not the kind of spiritualities which this defence con- siders. The spiritualities in this defence are the spiritualities with which we have been all along familiar in the Establishment in competing presen- tations, etc., where the spiritualities might go one way and the tempo- ralities might go another. That we were familiar with ; but the spirit- ualities in that sense do not point at any doctrinal matter. It is the holy office conferred, and the privileges connected vnth it, as against the pounds, shillings, and pence, and other things of that kind on the other side. There is nothing in doctrine, there is nothing attaching to Christian people, there is nothing peculiar to any one church more than another in regard to that, and least of all with that with which this matter was con- nected, in the earlier portions of this discussion. I put aside, therefore, the matter of the spiritualities as a matter which I do not see my way to a very distinct appreciation of, in its bearing upon the present question. The present question is a question which applies simply to the inter- pretation and enforcement of a constitution entered into by the different members of this body of the Eree Church, and nothing else. It surely cannot be said that after framing this constitution it was to be of no use, that it was to have no binding qualities, that the parties who took so much trouble to frame it, and bring it to a bearing, were no sooner to come to act under it than they were to fly in the face of it. That nobody has said — nobody could be so extravagant as to say. But, therefore, it is necessary to see what is the constitution, what it permitted, what it DECIDED IN THE COUET OF SESSION. 145- ordered, and what would be an infringement or violation of it, — it being agreed that there is suoh a constitution, although the parties cannot agree on the other equally important point, what it is. But its existence not being disputed, there surely must be some way of arriving at what is within the constitution. What is within the constitution is lawful. What is without it is unlawful in regard to that question. And who is to ascertain what is lawful and what is unlawful with reference to the constitution or bond of union entered into by a private voluntary body or association 1 I can make no distinction between one private voluntary union or association in regard to that question and another. It may be an association for civil purposes, or it may be an association for ecclesi- astical purposes ; but equally, if there be a constitution which the parties have agreed upon, and if that constitution be the measure of their mutual and respective rights, it is the Civil Court which must say what the con- tract is between these parties ; and that is the basis of the jurisdiction of this Court in the case. As to the extent of the Court's powers in exercising jurisdiction in regard to such a constitution, it is perfectly clear that this Court is not to touch matters of doctrine, is not to review sentences of discipline, is not to depose clergymen or suspend them. Nobody would dream of that.' This Court is not to appoint, any more than it is to depose, ministers. But it is to consider whether the constitution has been acted upon or not, who has gone beyond it, and, in regard to its violation, who has been affected by that violation, if a violation has taken place. That this Court is entitled to do, that this Court is bound to do, and it is bound to do it to the effect of setting aside and quashing what is inconsistent with the constitution, leaving the parties to find their other remedies — their spirit- ual remedies as they are called — within the body itself, when the body has been put right as to what the constitution really is. Now, this is not an invasion of the freedom of the church. This is not a violation of the privileges belonging to a church weU constituted, as this truly is. It is a defence of the church, inasmuch as it is a defence and protection of its constitution. A constitution under which no party knows what is to happen to him to-morrow, who is to sit over him in judgment, and what is to become both of his spiritual and temporal rights, is no constitution at aU. But the constitution properly constituted, thoroughly obeyed, giving rights to all and sundry, in their respective provinces, regulated by their own several consents — that is a different matter ; and when the Court steps forward to defend the constitution as thus agreed to, they are serving the interests, and not at all encroaching upon the rights, of the body whose constitution has been submitted to them for discussion and determination. L 146 LEADING ECCLESIASTICAL CASES The defence witli which the Lord Ordinary has dealt, is substantially a defence which denies the power of the Court to entertain this action to any effect. It is a defence which insists on the dismissal of the action ; it is a denial of the power of the Court to carry the constitution of the body itself into effect. Now, is it possible to deal with any such matter in any other way than the Lord Ordinary has done ? We cannot very well say whether this action may ultimately stand or fall. We cannot at all say, tiU. we have ascertained what is the constitution, what is the mat- ter we are dealing with, what are the rights of parties under it, etc. The jurisdiction and the power of the Court in such a question does not arise either from spiritualities or temporalities. It arises in this situation : that there is a contract entered into between two parties, and that the parties differ as to what that contract is. In the question which alleges there has been a breach of the contract, the Court's jurisdiction is based on the necessity of deciding between these two parties. I think that this pre- liminary question is a question which more or less approaches to the merits, if it does not somewhat mix up with them. And I confess, for my own part, I would have been better pleased to-day, if, in place of being asked to deal with that question in its preliminary shape, the inter- locutor had gone further than it does ; and, without dealing with that question at present, — the judgment of which may perhaps more or less hamper the shape of the case hereafter, when it receives its shape (for until then it has no shape) from the construction of the constitution — that we should have allowed before answer a general proof as to what was the constitution, and then taken, upon the proof being reported, both the effect of that proof and those preliminary questions as bearing upon the final result. If the constitution is proved as the pursuer alleges it, the result will be one thing. If the constitution is proved as the defenders maintain it, the result may be quite the opposite way. And, according as it is the one or the other, it may be necessary or it may not, to deal with that which has here been argued and disposed of as preliminary. I should like to have disposed of that matter when I saw whether it was in the case or not, for the Court may not have jurisdiction if the parties have been proceeding within their powers. The Court will have jurisdic- tion if they have been infringing the contract ; and I see no good to arise from the separation, but I mention that by the by, for, from the course the case has taken, and from your Lordships being aU agreed, as I under- stand, that that was the proper course in which to continue, I am tied up to deal with the preliminary question as it is presented, and if I am to decide now, I agree with your Lordship (and, as I understand, with the opinions of the rest of my brethren), that it is impossible to dismiss the action now : and so far, therefore, I concur vdth your Lordship's judg- ment. DECIDED IN THE COUET OF SESSION. 147 LoED CuERiEHiLL. — By the interlocutor which, we are now reviewing, the Lord Ordinary, while he has appointed the question on the merits of these two conjoined actions to be put in train for ascertaining the truth as to the disputed matters of fact, has repelled certain pleas which the defenders have stated, in order to preclude such an investigation, and we have now to determine whether or not, in virtue of these preliminary defences, or any of them, the actions ought to be dismissed without such an inquiry. In order to determine this question, we must see what is the precise nature of these two actions, and of these pleas ; and I think this will be most satisfactorily done by considering the two actions sepa- rately. The first of them is an action of reduction and dainages at the instance of the pursuer, a minister of the Free Church of Scotland, against the General Assembly of that body of the year 1858. What the pursuer complains of in that action is, that the defenders, on 24th May 1858, pronounced a sentence whereby they, inter alia, found him guilty of conduct of a scandalous description therein set forth, in reference to a married woman; and also, in consequence of that alleged offence, sus- pended him from the office of the ministry dne die, and declared the charge of his congregation vacant. And he alleges that, in consequence of that proceeding, he was injured not only in his feelings and reputa- tion, but also in his patrimonial interests, inasmuch as he was thereby exposed to the loss of his' emoluments as a minister of the Free Church, and as clerk of one of the Synods, to the extent of .£214 per annum. The main ground upon which the pursuer challenges that proceeding is, that the defenders had not power to pronounce that sentence. In sup- port of that ground of action he sets forth, and offers to prove, allegations to the effect — That the defenders had no powers excepting those intrusted to them by the contract, by which the voluntary association denominated the Free Church of Scotland had been constituted ; that, according to a condition of that constitution, the defenders, who formed the General Assembly of that association, had no power to adjudicate in any offence against a minister of the body unless he had been served with a libel before the Presbytery to which he belongs, setting forth the nature and grounds of the charge, and unless that charge should be regularly brought before the General Assembly by complaint or appeal; that the charge, however, which was made against the defender, so far as it relates to the particular scandal just referred to, was never brought before them in con- formity with that condition of the constitution; that, on the contrary, although in a libel which had been served upon him in the Presbytery to which he belonged, such a charge, along with others, had been made against him, the charge in question had been found to be not proven, and that finding not having been complained of by any party, had become 148 LEADING ECCLESIASTICAL CASES final in the Presbytery; that, although certain other offences had heen included in the same libel, and the Presbytery found them to be proven to some extent, and these other matters had been submitted to the review, first of the Synod of the bounds, and thereafter to the defenders as the General Assembly, yet that part of the libel of which he had been acquitted by the sentence of the Presbytery itself, had never been carried in any way either to the Synod or to the General Assembly ; and that, therefore, the latter body acted in excess of their power, and in contra- vention of the constitution of the association, when they pronounced sentence against him on that charge. The pursuer alleges that the defenders contravened the conditions of that constitution in this other respect, that they pronounced that sentence against him without his" being heard or allowed an opportunity of being heard in his defence. Thus, the import of the pursuer's allegations as to the sentence of which he complains is, that it is not within the power of the defenders to pro- nounce it, and that, consequently, it never had any validity, but was essentially and ah initio a nullity. The next thing to be attended to is the nature of the remedy for which the pursuer is suing by the present action. It is limited to two things — rfirst, he concludes for a decree re- ducing and declaring to be nuU and void the sentence complained of, and reponing him against the same in integrum ; and, secondly, he concludes for a decree for a sum of money, as reparation for the loss and damage alleged to have been sustained by him in the premises. It appears to me that two fallacies have pervaded the argument of the defenders as to the nature of the remedies to which these conclusions are limited. One of these is an assumption that these conclusions include also the question, whether or not the pursuer was guUty or innocent of the offence imputed to him as above mentioned ? Had there been a conclusion to that effect in the summons, it would, in my opinion, have been incompetent. But no such thing is sought in this action ; and even supposing that decree were ultimately to be pronounced in terms of the actual conclusions of this action, that decree would not affect the question of the pursuer's guilt or innocence. The other erroneous assumption of the defenders to which I have referred is, that, by the conclusion for reduction of the sentence, and for restoring the pursuer against it in integrum, the pursuer calls upon this Court to replace him in an office from which he has been removed, and which he does not at present hold. As I read the summons, this is not the case. The fallacy upon which this assumption rests con- sists in overlooking a broad distinction which exists between two different kinds of actions of reduction. Those of the one class are in effect de- claratory actions. Their object is merely to have it declared by the judgment of the Court that what is complained of never has had any DECIDED IN THE COURT OP SESSION. 149 validity or effect, and }ias been ah initio null and void. Eeductions of tlie other class have the effect of creating a nullity ui deeds or proceed- ings which are effectual so long as they are not rescinded. As examples of rescissory actions of the former class, reference may be made to the cases of reduction of deeds granted by persons in a state of insanity or of pupillarity, and of decrees-arbitral pronounced ultra vires compromissi. As examples of rescissory actions of the other class, reference may be made to reductions of deeds granted by minors beyond the years of pupillarity on the ground of minority and lesion, or of deeds granted on deathbed. The distinction between the two classes of reduction is also illustrated by those which are instituted for rescinding decrees of inferior courts. When the ground of reduction is only that the inferior court has exceeded its powers, the effect of the decree of reduction is merely to declare judicially the inherent nullity of the decree of the inferior court, and to leave entire the merits of the matter on which that court may have so incompetently adjudicated ; and, accordingly, such an action of reduction is competent in this Court, even although the question on the merits be excluded from its jurisdiction. But if, in such a case, the sum- mons should also conclude that this Court should pronounce a judgment on the merits of the question itself, that conclusion would be dismissed as incompetent. In the present case, what is sued for is merely a decree reducing the proceeding complained of as having been ab initio a nullity, and not a judgment on the merits of that proceeding. The remedy, therefore, which the pursuer is seeking by this action is not of the nature and import which has been assumed by the defenders in their argument, but is limited to a demand for having the sentence reduced, as having been ab initio null for want of power in the defenders to pronounce it, and for reparation for loss and damage alleged to have been sustained by the pursuer in consequence of its having been so pronounced. What, then, are. the defences which are pleaded against this actioii? The defenders deny the more important of the allegations of the pursuer as to the constitution of the church ; and make counter allegations that, by that constitution, the ministers and the members individually of the association bound themselves to submit implicitly to the sentences of the defenders, whatever these might be, and not to seek redress from a Civil Court, however much the defenders might exceed the power, or contra- vene the conditions of their constitution. If the defenders aver, as I understand they do, that by their constitution the ministers and members individually of the Free Church have intrusted such arbitrary power to them, I am not prepared to hold that these averments would be irrelevant as a defence against this action. If, by the constitution of the Free Church, its members and ministers individually have thought it right or 150 LEADING ECCLESIASTICAL CASES proper to surrender their rigkt to challenge in a Civil Court any acts of their governing bodies, even although these should be contraventions of the condition of that constitution itself, I do not see why they should not be bound by that agreement. In the record the pursuer pleads that such a condition would be pactum ilKcitum. But I do not see that there would be anything contra bonos mores in such an agreement, even if its members had agreed to a condition that their General Assembly should, in the exercise of an unlimited discretion,* and without assigning any reason for their conduct, be empowered to deprive any of their office- bearers of their offices, or even to expel from the association. I do not think there would be anything unlawful in such a contract. But as the allegations of the defenders are denied by the pursuer, I think that the Lord Ordiaary is quite right to institute an inquiry into the truth of these disputed matters. But while the defenders admit in their argument in this case that the constitution of their association is not only the source, but likewise the measure, of their powers over their members and ministers, they notwithstanding maintain that, although they should transgress the powers so committed to them in their proceedings against any of their members or ministers, the parties so wronged would not be entitled to have the nullity of the proceedings adjudged by this Court. The grounds upon which they maintain this doctrine in the present action are embodied in two of their preliminary pleas now under con- sideration. They are — first, that the proceedings are. " spiritual acts done in the ordinary course of discipline of a Christian church, tolerated and protected by law ;" and, secondly, that "the actions, so far as they conclude for reduction of the sentences complained of, do not relate to any question of civil right." These pleas raise a question of vast im- portance to all the individual members and office-bearers, not only of the Free Church, but also of all the religious associations in Scotland ; for, while the questions raised upon the conditions of the constitution of the Free Church would affect the rights of the ministers and members of its own communion, the far wider question raised by those preliminary pleas would affect the rights of the ministers and members of all the religious associations in Scotland. That is a question between the members and office-bearers individually of these associations, on the one hand ; and the bodies to whom they intrust the supreme power of governing them, on the other. And the question is, whether the former can have no redress whatever against the proceedings of the latter, however unlawful and unconstitutional these may be ; for, if these pleas be weU founded, no limits nor conditions which, in framing their constitutions, the members of such associations may think fit to place upon the powers of the bodies to whom they intrust the supreme power of managing their DECIDED IN THE COURT OF SESSION. 151 spiritual aifairs would be practically available to them ; because, in such cases, however much the- proceedings of such ruling bodies might be beyond the power entrusted to them by their constituents, no redress could be obtained by the latter either extrajudicially — because there would be no other tribunal within the association itself to whom application for relief could be made — or judicially, because the proceedings would, according to the plea, be spiritual acts, and would not relate to matters of civil right. The defenders avow that the plea they are now urging might lead to this practical result, their counsel having admitted, in answer to a question from your Lordship, that even if they were to exceed their powers by deposing a certain number of ministers by ballot, and without any cause, the aggrieved parties could have no redress. Is this, then, truly the predicament in which the ministers and members of the religious communions in Scotland are placed, in virtue of the opera- tion of such principles as are embodied in these two preliminary defences ? — The plea that a reduction of such a proceeding as is the subject of complaint in this case is not competent in this Court, in respect of its being a spiritual act done in the ordinary course of discipline by a Christian church, might be well founded if the defenders were found to be in that predicament in which, by the constitution of their association, they were empowered to perform what they call spiritual acts. For example, this might be the case if the alleged scandalous conduct imputed to the pursuer had been brought under their cognisance in the manner prescribed by the constitution of the Free Church, and if they had heard him in his defence against the accusation before pronouncing the sentence complained of. If it should be found in the investigation appointed by the Lord Ordinary's interlocutor that this was truly the case, that sentence would not be challengeable in this Court on the ground of its being erroneous on its merits. But the pursuer alleges and offers to prove, that the accusation of his having been guilty of the particular offence above referred to was never brought under the cognisance of the defenders in the manner prescribed by that constitution ; that, on the contrary, in virtue of the conditions of that constitution, it was excluded from their cognisance by a final sentence of the Presbytery ; and that, in contraven- tion also of another condition of the constitution, they pronounced that sentence without giving him an opportunity of being heard in his defence. And as, in the face of the pursuer's offer to prove these allegations, the defenders call upon us to dismiss the action on preliminary pleas, we are bound, in considering such pleas, to assume in the meantime the truth of the allegations which the pursuer makes in support of his action. And, assuming the truth of these allegations, then the conditions under which alone the defenders have any power of performing even spiritual acts — 152 LEADING ECCLESIASTICAL CASES such, as suspending or deposing their ministers — did not exist. Dealing with the case on this footing, as we are bound to do in the present stage of the proceedings, the sentence pronounced by them in the matter was ultra vires of the defenders, and the party aggrieved is entitled-to have the nullity of the sentence judicially declared by the Court. But stUl no action is competent in this Court in reference to that sentence, except for the purpose of setting it aside as a nullity, and awarding indemnification for such damage, if any, as the proceeding may have caused to the pursuer. The fallacy of the reasoning of the defenders on this point consists in their overlooking the broad distinction already referred to between an action of reduction of such a sentence on the ground of its having been essentially and ah initio a nullity, and a reduction on the ground of the sentence being erroneous on its merits. This is a distinc- tion which has always been fuUy recognised as to proceedings of aU kinds, whether civil or ecclesiastical. Even when the General Assembly of the Church of Scotland has pronounced a sentence of deposition in circum- stances in which it had not power to do so, this Court, in several cases, has been held to have jurisdiction to reduce the sentence as being ultra vires of the Assembly, even although it is one of the constituted tribunals of the country. In one of those cases (Cruikshank v. Gordon, 10th March 1843, D. 909) the principle was thus stated by Lord Medwyn : — "That, even where the exercise of their jurisdiction is confined within the province of the church, if the established form of procedure has not been attended to, and injustice has been the consequence, there, too, the Civil Court must review the proceedings. But, as the cause is essentially ecclesiastical, and the issue the exercise of a spiritual power, the Civil Court has no jurisdiction in the matter, and does not review the question on its merits, but only considers the procedure to see if the Ecclesiastical Court has foUowed the course which the law has pre- scribed as essential to procure a probability of justice. The Civil Court, it is usually said, in this case does not judge the cause, but the process." And in another of these cases (the Presbytery of Strathbogie, 16th February 1840, 2 D. 591) the principle was thus stated by Lord Gillies: — " In spiritual courts a limited jurisdiction exists, and then proceedings cannot be reviewed and set aside in the Civil Courts unless there be an excess of powers committed by them. By usage and statute there are powers in the Church Courts to make certaia rules of their own, which cannot be brought under review ; but it is an inher- ent condition, essential to the exercise of these powers, that the rules which are made shall be consistent with the law of the land, otherways they are void. The spiritual courts have no jurisdiction to enforce illegal rules, though made by themselves ; and any person injured by an DECIDED IN THE COUKT OF SESSION. 163 attempt to do so in his person, property, status, or reputation, may apply to a Civil Court for redress, just as in the case of any lawless wrong." The principles which thus apply to sentences pronounced by judicatories of the Established Church in excess of their powers apply d, fortiori to sentences pronounced by the governing bodies of voluntary religious as- sociations, because, while the former derive their authority from the law, and have power to some extent, as stated by Lord Gillies in the case of Strathbogie, to make rules for themselves, which, if consistent with the laws of the country, are binding on the office-bearers and members of the church, the case is different as to the latter, who have no powers whatever except those conferred upon them by the members of their associations, and whose proceedings, therefore, can be of no force or effect against their ministers and members, unless they be exercised within the bounds and ia conformity with the conditions prescribed by their constituents in the contract of the association. In this respect the powers of the govern- ing bodies of aU voluntary associations are effectually limited by the con- ditions of their constitution, whether the purpose for which they are en- tered into be sacred or secular. This was the principle of the judgment in the case of Dunbar v. Skinner, 3d March 1849. In that case a bishop of the Protestant Episcopal Church in Scotland, sitting with his clergy in Synod, pronounced a sentence of deposition against one of his clergymen. The latter instituted an action in this Court against the bishop, conclud- ing, as the report bears — 1. That the sentence should be found and de- clared to be null and void, as having been pronounced " illegally, irregu- larly, and without authority ; and 2. That the bishop should be found liable in £2000 of damages." The action, therefore, although different in its circumstances, was in effect of the same character as the present. The bishop, besides other pleas on the merits, pleaded, " in limine, that the Court had no jurisdiction to try the case, as the ground of action was a spiritual and ecclesiastical act, performed by the defender in his ecclesiastical capacity as the pursuer's bishop." The preliminary defence was also the same in effect as that now urged by the defenders. But the Court unanimously repelled that defence, and appointed (as the Lord Ordinary has done in this case) an inquiry as to the disputed questions of fact. The principle of the judgment was thus stated by Lord FuUerton : — " No office-bearer of this communion, or of any other merely tolerated communion, can lay claim to jurisdiction any more than the office-bearer of any private association. But this goes far to solve the only question now before us. For if there is here no jurisdiction, in the proper sense of the term, pleadable by the defender, the question truly resolves itself into one of agreement, and that seems to be the import of the second plea in law. Now, there is no doubt that all parties entering into an associa- 154 LEADING ECCLESIASTICAL CASES tion for purposes nottprohibited by law, may effectually bind themselves to submit without appeal to the determination of certain matters, and even to the infliction of censures, by the official authorities, to whom such power is committed by the terms of the association ; and if it could be instantly shewn, without any further inquiry, that, by the admitted or proved circumstances of the case, the defender had absolutely bound him- self to submit to such a sentence as that for which he now seeks redress, the defence in the second plea in law mighfe have been sustained, and the case sent out of Court. But can it be said, with any show of reason, that the case does stand in that situation? or that the Lord Ordinary was wrong in holding that there were various matters of fact here on which the parties were at variance, and which required to be ascertained in the usual way, before the case could be disposed of ? In the first place, when the defender's case is put, not on jurisdiction, where, I think, it cannot rest, but on the terms or conditions of that private association, designated the Protestant Episcopal Church in Scotland, the defender cannot advance a step without proving the nature and extent of his rights and powers as a bishop of that church. We, administering the law of Scotland, are pre- sumed to know the nature and limits of the jurisdiction of the various constituted authorities. But of the rights and powers of a bishop in the Scottish Episcopal Church we can know nothing until they are established in evidence, like the terms and conditions of any other association." This principle, it may here be remarked, meets also an argument which the de- fenders found upon the case of Lockhart, in which it was found that a sentence against a clergyman of the Established Church was not reduc- ible in consequence of mere errors in the forms of procedure. The observ- ance of forms of process is not a condition of the powers or jurisdiction of Church Courts ; and it is not every error of that kind which renders their sentences null and void. But the conditions of powers conferred by members of a voluntary association upon the of&ce-bearers limit their powers ; and any proceeding in contravention of these conditions is ultra vires, and consequently essentially null and void. On these grounds I am of opinion that the Lord Ordinary's interlocutor is right, in so far as it repels the first plea in law stated for the defenders. The other prelimi- nary defence disposed of by this interlocutor is, that the sentence cannot be competently reduced by this Court, because it does not relate to any question of civil right. But it appears to be a conclusive answer to this defence that the ultimate demand in the action is for a decree against the defenders for payment of £500, claimed by the pursuer as indemnifica- tion for the loss and damage alleged to have been sustained by him in consequence of the proceeding of which he complains. And, according to the pursuer's averments (which, as aheady said, must in hoc statu be DECIDED IN THE COURT OF SESSION. 155 assumed to be true), the losses for which he thus seeks pecuniary repara- tion were of a patrimonial kind, consisting partly of his emoluments as minister of the Free Church at Cardross, and partly of the damage sus- tained by him in his feelings and reputation by being charged with a scandalous offence. And, although the defenders may be privileged against a claim of damages for making such an accusation, whether their sentence be well founded or erroneous on its merits, if they have acted within their powers, it does not follow that they are so privileged if they be not act- ing within their powers. In the cases of Eobertson v. Campbell, 25th July 1781, and Macqueen v. Grant, 21st November 1783, it was found that a minister, although he is privileged from responsibility for imputa- tions made against a member of his congregation in the kirk-session or in private admonition to the party himself, he has no such privilege when such imputations are made otherways by him. And in the case of Dun- bar V. Skinner the Court held that if the proceeding there complained of should be found to be ultra vires of the bishop, his case would not be a privileged one. The question, therefore, as to the pursuer's claim for damages, as weU as his challenge of the sentence itself, depends upon the inquiry ordered by the Lord Ordinary's interlocutor as to the powers con- ferred upon the defenders by the constitution of their association. This being the case, it is not necessary to inquire whether or not the status' of a minister of a voluntary religious association, tolerated and protected by law, is not of itself such a civil right as the law recognises and protects, and whether or not he is entitled to indemnification for being unlawfully suspended from the office or deposed ? That status, even when derived only from the contract or constitution of a voluntary association, is an im- portant one in some respects. It confers not only an estimable position in society, but even some important civil privileges, one of which is the privilege of celebrating marriages without incurring the statutory penal- ties inflicted upon the celebrators of irregular marriages. As this ques- tion was not argued to us, I give no opinion upon this question at present, and I mention it now merely for the purpose of stating that I reserve my opinion upon it. I therefore think that the Lord Ordinary has rightly repelled this preliminary defence also, and that his interlocutor on the reduction of the sentence of suspension ought to be adhered to. What is complained of in the second of the conjoined actions is another sen- tence pronounced by the defenders against the pursuer on 1st June 1858, deposing him from the office of the holy ministry, in respect he had pre- sented to this Court a note praying for a suspension and interdict of the proceeding I have been considering. The ground upon which this sen- tence also is challenged is, that the defenders in pronouncing it went be- yond their powers. And, in support of that ground, the pursuer alleges 156 LEADING ECCLESIASTICAL CASES in the record that, in contravention of the constitution of the Free Church, the defenders pronounced that sentence without a libel against him hav- ing been raised— that they did not give him an opportunity of defending himself against the alleged offence for which they so punished him — that what he was accused of was merely an exercise of a right possessed by him with all the lieges, and was not contrary to the contract or consti- tution of the Free Church, and that, in consequence of this sentence, further loss and damage has been sustained by him. In this case, also, the remedy which the pursuer seeks is — first, a decree reducing the sentence, and declaring it to be null and void ; and, secondly, a decree for damages against three individual members of the defenders' body. There is, however, no conclusion that this Court should pronounce a decree which would interfere in any way with such other proceedings (if any there be) which can be adopted by the defenders for the alleged offence, in conformity with the powers conferred upon them by the opera- tion of their constitution. In this case, as in the former, the defenders deny that in pronouncing the sentence they exceeded their powers under the constitution, and they set forth in the record what they allege these powers to be. The Lord Ordinary, by the interlocutor complained of, appoints this case likewise to be put in train for having the truth of the disputed facts ascertained, and the pursuer acquiesces in that appointment. The defenders, however, are insisting that this action also shall be dis- missed without such an investigation, and maintain that, even if the pursuer's allegation as to their having had no power to pronounce the sentence were true, still the action would be incompetent in this Court, in respect that the sentence was a spiritual act, and that it does not relate to any question of civil right. As these are just the same pre- liminary pleas as are raised by the pursuer in the other process, and as the pursuer meets them with the same answers, I need only say that, in my opinion, the Lord Ordinary's interlocutor repelling this plea also is correct. It is proper, however, to keep in view that there are two peculiarities in this case which are still more adverse to the pleas of the defenders — 1. In considering the present case, the sentence of suspension, the execution of which was sought to be interdicted in the process of interdict, must be assumed in Jioc statu to have been a nullity. 2. The act of presenting the note of suspension and interdict in this case to this Court, whether or not it was made an offence by the constitution of the Free Church, was at most only a malum prohibitum, and not a malum in se ; and it was not sua natura a spiritual matter. The defenders plead that there is this peculiarity in their favour in this case, that, by an Act of the General Assembly of the Church of Scotland in 1582, it is enacted that no person received into an ecclesiastical office should seek by the DECIDED IN THE COUKT OF SESSION. 157 civil power to make any appellation from the General Assembly to stop the discipline and jurisdiction granted by God's Word to the office-bearers withia the kirk, under the pain of excommunication, summarily, and without any proofs or admonition ; and that, by the standards of the Church of Scotland having been generally adopted into the constitution of the Free Church, this regulation empowered the defenders to pronounce the sentence in question in the manner complained of. But the pursuer denies that that old Act either is of the import and effect alleged by the defenders, or that it is part of the constitution of the Free Church. And he founds upon the case of Cruikshank v. Gordon, already mentioned, shewing that it is not even a part of the constitution of the Church of Scotland, from which it is said to have been adopted. In that case the General Assembly had deposed certain clergy- men for, inter alia, applying to the civil power for an interdict against church judicatories or others carrying into execution certain sentences of censure pronounced by them. An action of reduction of that sentence of deposition was met with a preliminary defence that the action was incom- petent, and the Court had no jurisdiction to entertain it ; but it was found " that this Court has jurisdiction to afford to the parties aggrieved adequate redress for the flagrant wrongs complained of, by suspending and rescinding the sentence of deposition, if the pursuers shall establish their allegations on the merits in ulterior stages of the evidence. And as it was thus settled that ministers of the Established Church are not liable to deposition even in a prosecution under a libel for so resorting to the Civil Courts of the country, it cannot be assumed that ministers of the Free Church are in a worse predicament, unless it be shewn that by the constitution of their association they have voluntarily consented to be so dealt with. Whether or not they have done so will be ascertained under the investigation which is to take place under the Lord Ordinary's interlocutor. The remaining plea is stated by the three reverend gentlemen, who are called as defenders in this second action, viz., that "reduction is not a proper legal remedy complained of." I think that this plea pro- ceeds upon a misapprehension, which I have already adverted to, as to the nature of the present action of reduction. It does not operate as an appeal to bring under the cognisance of this Court any question of ecclesiastical censure to which the pursuer may be amenable, even were such a decree of reduction as is sued for pronounced, and what is sought is mainly an adjudication of an alleged nullity in the sentences complained of. I think that this plea also has been properly repelled by the Lord Ordinary. At the debate the defenders stated objections to the con- clusions for damages, but these objections were out of place, because all such pleas are expressly reserved, entire by the Lord Ordinary's inter- 158 , LEADING ECCLESIASTICAL CASES locutor, and remain to be disposed of by his LordsMp. I therefore think that that interlocutor should simply be adhered to as it stands. Lord Dbas. — Since these conjoined actions were before us in December 1859, revised condescendences and answers have been lodged, and a record closed in each of them. These revised papers are, I am glad to say, greatly more explicit and satisfactory than the original papers. We are now enabled to see pretty clearly how far the parties are at one upon matters of fact, and how far they differ. I shall first notice the material facts which seem to me not to be disputed, and then those which are. Having done this, I shall state my opinion whether the actions should be at once dismissed, which is what the defenders contend for ; or whether, as the pursuer contends, the disputed facts should be investi- gated. The matters of fact which are substantially not disputed appear to me to be these — 1st, The pursuer, who had previously been parish minister of Ballachulish, seceded with his party from the Church of Scotland in 1843; and was subsequently inducted as minister of the Free Church congregation at Cardross. In this capacity he had a dwelling-house rent free, and certain emoluments mentioned in the record. These, together with his salary of ^40 a-year as clerk to the Free Synod of Glasgow and Ayr, formed his means of livelihood. 2d, The Free Church adopted, at the Disruption, the standards, laws, and rules of the Church, of Scotland, in so far as these could be adopted by a voluntary body, subject to the qualificattons expressed in the document known as the Claim of Eight, of 30th May 1842 ; the Protest, of 18th May 1843 ; the relative Deed of Separation and Demission of the 23d of that month j and the Formula, subscribed by the pursuer and other ministers at their induction as ministers of the Free Church. 3d, The Free Church, accordingly, has its kirk-sessions, presbjrteries, synods, and general assemblies— to each of which bodies the same authority is conceded over each other, and over iudividual ministers, as in the Church of Scotland. 4th, Along with the other laws and rules thus adopted, the Free Church adopted those which related to libels against ministers for ecclesiastical offences, with the same rights of appeal from presbyteries to synods, and from synods to general assemblies, as in the Established Church. 5th, Upon this footing the pursuer was served with a Ubel at the instance of the Free Presbytery of Dumbarton, the first count in which charged him with being intoxicated on a particular occasion in spring 1857 ; the second with having, on another occasion, in December of that year, exhibited symptoms of intoxication in his walk, appearance, breath, and indistinctness of speech ; and the third, and only other count, with having upon this last occasion endeavoured to kiss a married DECIDED IN THE COURT OF SESSION. 159 woman in her own house, and behaved violently and immodestly towards her. 6th, After proof led, the Presbytery found the first charge not proven ; the second proven, except the indistinctness of speech j and the third proven, except that he did not attempt to kiss the woman, nor behave immodestly towards her — exceptions which virtually reduced this last charge to a charge of violent conduct under the influence of intoxi- cating liquors. 7th, No member of Presbytery appealed or dissented and complained against this judgment. But the pursuer appealed to the Synod against it; in so far as adverse to him, and maintained that, on the first count, the deliverance should have been not guilty, in place of not proven, and that no part of the other two counts should have been found proven. 8th, To this appeal the Synod substantially gave effect by a judgment which discharged the first count entirely, and found the other two counts not proven. 9th, From this judgment of the Synod the Presby- tery appealed, and complained to the General Assembly, who, on 24th May 1858, affirmed the Synod's deliverance, discharging the first count entirely ; reversed it on the second, and returned on that count to the deliverance of the Presbytery ; and on the third not only reversed the deliverance of the Synod but also that portion of the Presbytery's deliverance favourable to the pursuer, which had not been appealed or complained against, and found the whole of the third count proven ; and, in respect of these findings, suspended the pursuer from the ministry sine die, declared his charge of the congregation of Cardross vacant, and that he could not be restored to the ministry except by the General Assembly. 10th, The pursuer thereupon presented an application to the Lord Ordinary on the Bills to suspend the proceedings as irregular and incom- petent, and to interdict the parties " from proceeding to the complainer's church at Cardross, and declaring or preaching the charge vacant." The Lord Ordinary, on 28th May 1858, refused this application as incom- petent. 11th, That same night the pursuer was cited to appear next day before the General Assembly, to answer for his conduct in making the above application to the Civil Court. Having appeared, he was interro- gated and desired to confine himself to a categorical answer, "yea," or " nay," whether he had authorised the application ; and having answered "yea," he was, in respect of this admission, instanter deposed from the office of the ministry. 12th, The pursuer, as a necessary consequence of • these deliverances (assuming them to be valid), ceased to have any right to occupy the dweUing-house called the manse, or to draw the emolu- ments he had previously enjoyed as minister of the Free Church con- gregation at Cardross, and he became at same time incapacitated from holding any other charge or clerical appointment in connection with the Free Church, 160 LEADING ECCLESIASTICAL CASES Such, I think, are the material facts upon which (subject, no doubt, to much observation) the parties are substantially agreed. On the other hand, the material facts on which they differ may be comprehended under the three following questions : — 1st. Whether, according to the rules of the Free Church, applicable to libels against ministers, the judgment of a Presbytery, in so far as favourable to the accused, is held to become final if acquiesced in by all members of Pres- bytery;, or whether, if the accused, by appealing to the Synod against the findings so far as adverse to him, gets the adverse fijidings reversed, and the Presbytery then appeal the Synod's judgment to the General Assembly, the Assembly may, ex propria motu, go back upon the whole matter, and find the charges proved of which the accused had been acquitted by the Presbytery, although no appeal or dissent and complaint had been entered against that acquittal? 2d. Whether it is a rule of the Free Church that a minister who complains to the Civil Court, as the pursuer did here, of an ecclesiastical sentence which he conceives to have been incompetently pronounced, becomes liable to instant deposition ? 3d. Upon what particular footing do ministers of the Free Church hold their manses and the emoluments of their office ? and upon what footing was the pursuer appointed to and removed from his situation as clerk to the Free Synod of Glasgow and Ayr ? Apart from certain details, into which neither party has entered, and which can only affect the amount of damages, if damages shall be held due — these three heads appear to me to comprehend all the material matters of fact upon which the parties really differ upon the face of this record. The solution of the first of these disputed questions will, to a great extent I think, depend upon what were the rules and usages applicable to procedure upon libels against ministers in the Church of Scotland prior to the Disruption ; because I do not understand either party to aver that, in this respect, any new or different rules have been since adopted by the Free Church. The solution of the second question, again, will in- volve the twofold inquiry, whether the alleged rule, prohibiting applica- tion to the Civil Courts under pain of instant deposition, existed in the Church of Scotland prior to the Claim of Eight of 30th May 1842, and Protest of 18th May 1843 ? and, if not, whether by that Claim of Eight and Protest which preceded the Disruption, taken along vrith the Deed of Separation and Demission, and relative Formula agreed upon at the time of the Disruption, such a rule was introduced as a rule of the asso- ciation then formed 1 The solution of the third disputed question of fact must depend, so far as regards the Sustentation Fund and supplementary funds of the Free Church, mainly upon documents within the power of the defenders, which we have not yet seen ; so far as regards the DECIDED IN THE COURT OF SESSION. 161 manse, upon deeds which were partially read to us, for the first time, in the course of the present argument ; and, so far as regards the clerkship of the Free Synod of Glasgow and Ayr, upon the minutes or records of that hody, and the general regulations, if there be such, of the defenders' association upon the subject. The Lord Ordinary has not decided in what manner or form proba- tion ought to proceed upon these or any disputed facts in the case. He has merely decided that proof, in some shape or form, ought to be led ; and that the actions are not to be at once dismissed. The disputed matters of fact to which I have particularly alluded, involve peculiarities which may materially affect the mode ia which they ought to be investi- gated. For instance, it may be difiicult to say how far we are bound judicially to know the rules and usages of the Established Church Courts, which are, within their own sphere, independent tribunals ; or how and to what extent these fall to be ascertained by inquiry. And upon the disputed matters generally, under the three heads I have mentioned, so much must turn upon the legal construction of rules and documents, that it may probably be thought right to have a proof by commission upon the matters involved in these three heads before determining whether any, and if so, what decree of reduction should be pronounced, and whether there ought to be any, and if so, what issue or issues sent to a jury with a view to questions of damages. All this, however, including the question whether such proof should be before answer, wiU be open under the interlocutor of the Lord Ordinary. "What the defenders contend for is that the actions should instantly be" dismissed. On looking at the two pleas (the first and third) for the general body of defenders, which the Lord Ordinary has repelled, it will be seen that, although embracing the alleged incompetency of reduction, the one concludes with the words " the actions should there- fore be dismissed," and the other with the words " the actions cannot be maintained." The reclaiming note, accordingly, for these defenders, prays the Court "to sustain the pleas stated for the defenders, and to assoilzie them from the conclusions of the conjoined actions, or at least dismiss the said actions, and to find the defenders entitled to expenses." The relative pleas for the individual defenders, in the second action (being the first, third, and fourth of the separate defences), which have been also repelled, are somewhat differently worded ; but that their object is the same appears from the prayer of their reclaiming note, which, like that of the other defenders, is " to sustain the pleas of the reclaimers, to dismiss the action directed against them, and to find them entitled to expenses." Accordingly, the whole argument we have heard upon these reclaiming notes has been directed to the question, whether M 162 LEADING ECCLESIASTICAL CASES there shall be investigation of some sort, or immediate dismissal of the actions 1 The pleas repelled by the Lord Ordinary are to the effect that reduction of the sentences or resolutions complained of is incompetent, and the actions " should therefore be dismissed." There is here, how- ever involved a non seguitur. The incompetency of reduction, although established, could only go to the dismissal of the conclusions for reduction, and not to dismissal of the actions, which contain conclusions for damages, not made dependent, by the structure of the summonses, on the conclusions for reduction. But we are not come to that stage at which we are called upon to determine whether, and to what effect, reduction is or is not competent. Probation has neither been led nor renounced as to the nature and terms of the contract which these sentences or resolutions purport to have vacated. It is just as necessary, according to our usual course of procedure, to have such probation led or renounced before determining the competency of reduction, as before determining the competency of claiming damages. It would be rash, to say the least of it, to assume, at the present stage of the cause, that redress, in the shape of damages, can just as well be given without reduction as with it. In the case, for instance, of inferior court convic- tions, objected to as oppressively or irregularly obtained, for breach of a statute, or some common law offence, I do not know how it may be in England, but with us the practice is, before insisting for damages, to get the sentence quashed by suspension (which is the usual Justiciary form), or by reduction. So it is with regard to sentences of any of the Established Church courts when they are alleged to be ultra vires ; and so also it is in the case of decreets-arbitral, and in many other cases. The whole argument of the defenders necessarily implies that the sentences now complained of, although pronounced solely ex contractu, are entitled to a certain presumption of validity ; and, if so, the usual way with us of overcoming that presumption is by reduction. Suppose the defenders were to produce these sentences to the Sheriff in support of an application to have the pursuer ordained to remove from the manse, as being no longer the incumbent, could the Sheriff entertain such objections as are now urged against these sentences, as defences against the application, so long as these objections had not been made the groundwork of a reduction? I am not prepared to say that he could. And if there be room to doubt this, or to doubt whether the sentences, while unreduced, do or do not form a bar to the pursuer's claim for damages, he may be entitled to have that doubt removed by reduction. It would be premature, however, to determine any question of this kind at present. We must first know precisely what the contract under which the sentences were pronounced really is, and whether and how far it DECIDED IN THE COURT OF SESSION. 163 involves civil rights which have been violated, and then we shall be in a better position to judge whether there is room with or without reduction for a claim of damages. It is impossible, I think, to say that a civil contract, or the violation of civil rights, is not, to some extent at least, relevantly averred. It is said the defenders' association are a church, and that a church does not imply any civil object or purpose whatever. It may be so. But I know nothing to prevent the contract under which parties associate themselves as a church from embracing civil rights. Men may lawfully make the holy office of the ministry a profession by which they are to live ; and in this country they generally do so. The pursuer avers that he did so here ; that he had qualified himself by an expensive course of study for being a minister of the Church of Scotland; that he resigned a permanent living in that Church to become a minister of the Free Church association, who admitted him accordingly, and inducted him into the charge of the Free congregation at Cardross. He says he joined the association upon the footing that the status then conferred upon him would qualify him to earn his livelihood, and would not be taken from him, except for the causes and by the tribunals, in their order, stipulated by the rules of the association. All this may be shewn to be otherwise, or it may be made out that there was no such connection between the emoluments, or means of livelihood, and the clerical status conferred, as to entitle the pursuer to say that he has sustained a civil wrong, for which he is entitled to civil redress. For instance, it may be shewn that dismissal from the office of clerk to the Free Synod of Glasgow and Ayr had no other sort of connection with the sentences of suspension and deposition than if it had been dismissal from the situation of tutor or chaplain in the family of a Free Churchman, who chose to employ no one but a Free Church clergyman in these capacities. It may be shewn that any benefit which the defender derived from the sustentation and supplementary funds was of the same precarious and purely incidental character. It may be even shewn — although that seems more difficult to reconcile with the defenders' own averments — that this was the case with the pursuer's enjoyment of the manse. And if these things be made out, it may be matter of grave consideration whether there be room either for reduction or damages. But we have not yet before us all the facts necessary to enable us to judge of these matters, and I refrain, therefore, from either expressing or forming any opinion in regard to them. One thing, however, I may say, that the notion that we shall, in any event, reduce these sentences, except in so far as they may form a bar to redress for civil injury, has not, so far as I know, been hitherto countenanced by any of your Lordships. If there has been no civil contract at all — ^if no 164 LEADING ECCLESIASTICAL CASES civil wrong, for which the law provides redress, has heen coiamitted, we shaU neither give reduction nor damages. If, on the other hand, a civil contract has been violated, we cannot refuse to the pursuer an opportunity of establishing his claim for damages occasioned by that violation. If the sentences complained of shall be found to carry with them no presump- tion of validity, and so not to stand in the way of a claim of damages, there may be no necessity for any reduction of them. But if they are to be reduced, it has never occurred to me, and I do not think it has been suggested by any of your Lordships, that such reduction could go further than removing them out of the way as an apparent obstacle to patrimonisd redress. Nobody contemplates that the defenders are to be, ordained to receive the pursuer back into their association ; to allow him to sit and vote in their presbyteries, synods, and general assemblies ; or that the Free Church congregation at Cardross are to be compelled either to listen to his sermons or to absent themselves from the church, and leave him to preach in it to empty benches. The principle upon which we should decline to take that course is a very ordinary principle. If a master unwarrantably dismisses his servant, we give pecuniary redress ; but we do not compel the master to take the servant back into his service. If I engage a teacher in any department of science, literature, or art, the law will compel me to pay him, but the law will not compel me to be taught by him. It is not because the office of a clergyman is a holy office — ^it is not because those who ordained or deposed him did so by divine authority — it is not because the church he belongs to is a Christian church — ^it is not because the object of the association is a religious object — that we decline to interfere further than I have indicated. It is simply because this Court deals only with civil or patrimonial interests and consequences, and, whUe vindicating or giving redress for these, refuses to go beyond them. It is upon the same ordinary principle that, if no civil interests are involved, we refuse to interfere at all. Men may associate themselves together for innumerable purposes under rules and regulations which may be called, if you please, a contract or agreement, but of the breach or- observance of which the law wiU take no cognisance. It is of no moment whether these purposes be trivial or important — temporal or spiritual — scientific or religious^so long as they do not involve civil or patrimonial rights. If our judicial interposition, or non-interposition, turned, to any extent, upon the laudable nature of the association — upon its object being spiritual or religious, or upon the truth or falsehood of its religious principles — it is quite plain that, before determining whether and how far we should interfere or not, we would have to inquire into and judge of the very matters and distinctions which the defenders are DECIDED IN THE COUET OF SESSION. 165 so anxious to keep in their own hands, and with which, happily, we have nothing to do. But if parties choose to connect with, or superadd to, such objects, or any of them, a lawful civil contract — if they introduce the element of pecuniary or patrimonial remuneration — then our inter- position in aid of civil rights, and to redress civil wrong, is just as much a matter of course, irrespective altogether of what may be the object of the association, as our non-interference where the civil element is wanting. There are innumerable compacts or arrangements every day entered into, which, although not to be compared in importance with compacts or arrangements as to matters of religion, may materially affect the comfort and happiness of society, and in respect of which, nevertheless, so long as they no not involve civil or patrimonial rights, no action will lie, either for implement or damages. Two persons agree to ride together, to dance together, to sing or play together, to travel together ; the one breaks his engagement, and the other shall have no redress. But if the one has agreed to pay the other for the instruction to be derived in riding, dancing, music, or any other branch of study, or for accompanying him as his courrier or valet de place, the law will give redress to the party injured by the breach of that agreement. So it is in other matters, less or more important. The case is not varied by the introduction of the religious element. A number of persons agree to constitute themselves an association to read the Bible together, to pray together, to worship together in any form which the law sanction's or tolerates, and the law will not interfere whether they keep or break such engagements. They may call themselves a Christian Church, or a Synagogue, or a Free Church, or a True Church, or any name they please, and the law will not even inquire whether they merit the name they so appropriate, nor whether their doctrines be heterodox or orthodox, provided only their objects be not unlawful. They may assign to certain of their number certain functions — so many to be ministers or office-bearers, of whatever kind suits the denomination to which they belong ; and if the labours of the minister and other office-bearers are undertaken only by those who are rich enough and generous enough to undertake them gratuitously, the association may enjoy that happy state of freedom in which nobody is bound to anything. But if the association make a compact with certain of its members that, on condition of the latter going through a long course of study and preparation, and devoting themselves exclusively to the labours of the ministry, they shaU be held qualified to be inducted, and accordingly do induct them into the charge of particular congregations, with right to certain emoluments as a means of livelihood, and on the footing that the qualification thus conferred shall not be taken away except for one or more of certain causes, to be ascertained by certain 166 LEADING ECCLESIASTICAL CASES tribunals, acting in a specified order, then the association, or its members, if they break this compact, may become liable for the consequences, precisely as if the emoluments had been attached to a purely secular qualification and employment. A minister is just as much entitled to rely upon his compact for the means of subsistence as any other man. A breach of that compact, whereby he and his family are thrown upon the world to starve, is a wrong which could only be left without a remedy in a country where law is unknown. It was stated by the defenders' counsel, Mr. Young, in answer to questions put, partly by your Lordship in the chair and partly by me, that the Eree Church General Assembly might, at any time, resolve that any given number of ministers, whose names should be first drawn from a ballot-box, should be deposed ; and that, if the pursuer had been convicted of being sober in place of being intoxicated, on Christmas day 1857 ; or if the sentence had borne that he was the ablest man and the best preacher in the Church, and therefore that he was deposed, there would still have been no legal claim for redress. It may be so, if it can be shewn either (first), that the pursuer bound himself to such conditions, or (second), that the compact involved no matters of civil or patrimonial right. But if neither of these two things can be shewn, the result seems just about as startling as that the Faculty of Advocates should be allowed, with impunity, to expel one of its members because he was the most able and accomplished and successful member of the body. If the ministers of the Free Church choose to agree that a majority of their General Assembly, or any other committee of the association, shall have power to depose all or any of them at pleasure, without cause assigned, let them do so. No man in this country has any power over another, in matters either religious or civil, beyond what the civil law itself confers, except by that other's own consent. Eut there is great latitude in the extent to which this consent may be carried. It may go the length of enabling any leader of a dissenting presbytery, synod, or assembly, who can command a bare majority at the moment, to have any leading member of the minority at once deposed, without cause assigned ; or of enabling the majority at once to depose the whole minority. But such consent, to be effectual, miist be clear on the face of the compact. The law will neither presume nor readily infer such consent where civil interests are involved. The liberty of the majority may be the slavery of each individual, and of the whole minority. That is not the kind of liberty which the law of this country favours. Still less does the law favour or even recognise the liberty of one party to a civil contract to break it with impunity, or to interpret it in his own favour to the prejudice of the other party. The interpretation of all con- tracts belongs to the Civil Courts, to the effect, in the first instance, of DECIDED IN THE COURT OF SESSION. 167 ascertaining whether they involve civil rights j and, in the next place, if they do, of vindicating or giving redress for the violation of these rights ; and, although every human tribunal must be fallible, history has shewn that nowhere else can these powers be so safely lodged. Kghtly viewed, they are, in us, not powers, but duties, which, when required by any of her Majesty's subjects, be their religion what it may, we have no choice but to perform. The Solicitor-General, in the course of his able and judicious argument, admitted that, to jurisdiction properly so called, the defenders have no claim, — that to compact or consent all their powers must be referred. The Solicitor saw very well that the opposite view was neither maintainable in itself nor consistent with the only line of argument which, in other respects, he fell to maintain ; for, if the defenders had jurisdiction, they must keep within it. No consent could enlarge it. Whereas, upon the other view, they may make any lawful compact they please, which the members of their association are either wise enough or rash enough (as people may think it) to accede to. If that compact touches no civil interests, the law, as I have said, will neither enforce it nor give damages for the breach of it. But, before we can judge of the compact we must know precisely what it is ; and as its import, so far as disputed, cannot be known and fixed except by investigation, it follows that the Lord Ordinary is right in refusing to dismiss the action (which is really all he has done) without such investigation. Perhaps I could have wished that his Lordship had dealt with more pleas, and struck somewhat deeper into the case than he has done. But to recall his interlocutor on this ground would be to retard and not to forward the progress of the cause. To the extent to which he has decided he has, I think, decided rightly. And I concur, therefore, in holding that the interlocutor ought to be adhered to. I have only to add, with reference to the question mooted by Lord Ivory, whether the defenders have appeared under any nomen juris which we can recognise, that, looking to the pleas now put on record by the defenders, I think it wUl be incumbent on the Lord Ordinary to require them to explain more specifically who are the parties for whom these pleas are maintained under the vague denomination of the General Assembly of the Free Church of Scotland, which met in 1858. The necessity for this is apparent. The parties who did the wrong — if a wrong was done — were all the individual members of that Assembly, present at the meetings, who voted for, or tacitly adopted the resolutions or sentences complained of. Every one of these members became individually liable to make good the consequences incurred, if consequences were incurred at all, to the extent of his means and fortune. The regular course would have been to have called all these individuals as defenders in both actions. Of 168 LEADING ECCLESIASTICAL CASES this we have an a fortiori example in the action of damages at the instance of the Earl of KinnouU and the Eev. David Young against the Presbytery of Auchterarder (1 Bell's App. p. 662), where the parties called as defenders were the whole members composing the majority of the Presbytery who voted for the resolution complained of, and who were held, both in this Court and in the House of Lords, to be the proper defenders. But, in place of taking a similar course here (except in so far as three individuals are added as defenders in the second action), both parties seem to have thought it expedient, the one to adopt, and the other to acquiesce in, a short-hand mode of calling the General Assembly of the Pree Church of Scotland, the Eev. Dr. Alexander Beith, their moderator, and the Eev. Patrick Clason, D.D., and the Eev. Sir Henry Wellwood Moncreiff, Bart., their principal clerks, as representing the said General Assembly. Now, this may be aU very well, if it be sufficiently clear that the three indivi- duals thus designated as the moderator and principal clerks, and who have appeared accordingly, do appear as representing and responsible for the whole individual members of the General Assembly of the Free Church who passed the resolutions or sentences complained of. It has been lepeatedly pointed out, particularly by my brother Lord Ivory and myself, that the plea was open to the defenders that all parties interested had not been called. They have all along declined, and still decline, to avail themselves of that plea. But it is time we should know what such declinature means. For, while the defenders allow the actions to proceed on the only footing on which they could proceed — viz., that aU parties interested are in the field — I find two pleas in the record which seem to me inconsistent with that supposition. The defenders' sixth plea bears — " The General Assembly of the Free Church cannot, as such, be subjected in damages, nor can any decree for money be pronounced against it in the first action." Their seventh plea is in these terms: — "The moderator and clerks of the said Assembly are not responsible for the acts and proceedings of the Assembly, and cannot be subjected in damages in respect of such acts and proceedings, as representing the Assembly or otherwise." Now, if these pleas have any meaning, they seem to import that, by appearing for the General Assembly of the Free Church of 1858, is not meant appearing for the individual members who composed that body ; and that the moderator and clerks do not represent, and are not responsible for, either the indi- vidual members or the body. The position in which this leaves matters is, that while the defenders assert a standing injudicio to obtain absolvitor on the merits on behalf of aU interested, they claim at the same time the privilege of dissolving into a shadow if, by any chance, the judgment is to be against them. That would be a mode of playing fast DECIDED IN THE COUET OF SESSION. 169 and loose ■which I do not suppose can be intended. But, whether it he or not, a door for it cannot he left open. The legitimate plea to take, if views of that kind are contemplated, is, that the proper parties, or all the proper parties, have not heen called ; and if the defenders will neither state that plea nor take responsibility for the only parties whom they can legally represent under the name of the General Assembly of the Free Church, then, I think, the course will be to appoint the pursuer to call the whole members of that Assembly, so far as known, who sanctioned the resolutions or sentences complained of, leaving it for future considera- tion upon whom the expense thus occasioned shall fall. It is pars judicis to see that all parties appearing to be interested are in the field, as was held by the House of Lords in the case of Eell v. Williamson's Trustees, 8th July 1822 (1 Shaw's App. p. 220). And, accordingly, that view was acted on by this Court in the subsequent case of Bennet and M'Earlane V. Burgess, etc., 27th May 1828 (6 S. and D., N. E., p. 854). The expenses of this proceeding may, however, be avoided, either by a minute sistLng the absent parties, or by the defenders who have already appeared explicitly assuming their responsibilities. But it concerns the law and the regularity of judicial procedure that in one way or other this matter should be put on a proper footing. The Court pronounced the following interlocutor : — " The Lords having advised the reclaiming note for the General Assembly of the Free Church of Scotland, No. 88 of process, and the re- claiming note for Dr. Beith and others, No. 89 of process, and heard counsel for the parties thereon, and on the whole cause, refuse the desires of the said reclaiming notes, and adhere to the interlocutor reclaimed against : Find the respective re- claimers liable to the pursuer in the expenses incurred- by him in reference to their said reclaiming notes respectively since the date of the Lord Ordinary's interlocutor so reclaimed against : Allow accounts thereof to be given in, and remit," etc. Michael Lawson, S.S.C,— James Cbawfoed Jr., "W.S. — Mukbat and Bbith, W,S,— Agents. 170 LEADING ECCLESIASTICAL CASES July 9, 1862. Eev. John M'MillAN, Pursuer. — Patton — Fraser — Grant. The General Assembly of the Free Church of Scotland, Defenders. — Lori-Adw. Moncreiff — Ymng — Clark The Eev. Dr. Alexander Beith and Others, Defenders. — Sol-Oen. Maitland — N. Campbell. First Division. — ^Lord Jerviswoode. Reparation — Church Judicatory — Process — Title to Sue — Reduction — Issues — Malice. — In two conjoined actions at the instance' of a deposed minister of the Free Church, the first against the General Assemhly of that body, and the moderator and clerks thereof as representing the same, for reduction of a sen- tence of suspension and for damages ; and the second against the same parties, and also against three individual members of the Assembly as individuals, for reduction of a subsequent sentence of deposition and for damages, the grounds of both actions being an alleged excess of power and violation of the contract or constitution of the association by the General Assembly ; and there being no allegation of malice, excepting one against the individual defenders, which was not insisted in, the pursuer stated that, in the event of the first action being held untenable, he could not insist in the second on the record as it stood ; — Held (diss. Lord Deas) that the reductive conclusions were only auxiliary to the demand for damages, and could not be maintained by them- selves ; that the claim of damages could not be maintained as laid ; and there- fore issues disallowed and actions dismissed. Opinions (per Lord President), that the General Assembly of the Free Church was not a body which could, in its collective capacity, or by its ofiice-bearers, be convened in an action or subjected in damages ; (per Lord Curriehill), that a claim of damages could not be maintained against parties upon whom judicial functions were lawfully conferred by private agreement, on account of an act done in the exercise of such functions, without an alle- gation of malice ; (per Lord Deas), that a conclusion for reduction, with a statement of intention to follow up the decree by an action of damages, and without qualification of any other interest to pursue the reduction, is competent. Sequel of case reported Session Eeports, vol. xxii. p. 290, and vol. xxiii. p. 1314 {supra, pp. 6 3 and 1 1 8). This cause was now reported by the Lord Ordinary, in respect parties had not agreed in the adjustment of the issues proposed by the pursuer.' The issues proposed by the pursuer were as follows : — "It 'being admitted that, on or about the 24th May 1858, the ' " Note. — As the parties have been unable to adjust issues in the cause before the Lord Ordinary, it becomes his duty to report the matter in terms of the statute. In doing so he thinks it right to say that the terms of the issues, whether as originally proposed or as amended, have not formed the subject of any detailed discussion be- fore him. The Lord Ordinary did not consider it necessary to insist for this, he- cause it became at once obvious that the defenders were not prepared to admit the right of the pursuer to any issue or issues, or at least to any such as those of the form DECIDED m THE COURT OF SESSION. 171 pursuer was minister of tlie Free Cliurcli congregation at Cardross ; and that, on or about the 1st June 1858, he was a minister of the Free Church of Scotland : — "1. Whether, according to the contract of association or constitution of the Free Church of Scotland, a deliverance of any of the Presbyteries on charges preferred against any of the ministers of the Free Church of Scotland cannot, except in so far as appealed or complained against, be altered by the said General Assembly ; and then only after hearfng parties, or allowing them an opportunity of being heard ] And whether the defenders, the General Assembly of the Free Church of Scotland, at their meeting in Edinburgh in May 1858, wrongously, and in viola- tion of said contract of association or constitution, without hearing the pursuer or giving him an opportunity of being heard,' and without the requisite appeal or complaint, altered a deliverance of the Presbytery of Dumbarton, dated on or about 1st April 1858, and suspended the pursuer from his office as a minister of the said church, to his loss, injury, and damage 1 — Damages laid at £500. " 2. Whether, according to the contract of association or constitution of the Free Church, it is beyond the power of the General Assembly of that church to depose any of its ministers without his being charged with crime or offence, until after hearing or allowing him an opportunity of being heard in his defence '! .. And whether, on or about 1 st June 1858, the defenders, the General Assembly of the Free Church of Scotland, and the defenders, the Rev. Dr. Alexander Beith, the Rev. Dr. Robert Smith Candlish, and the Rev. Dr. James Bannerman, or any of them, without any crime or offence having been charged against the pursuer, without finding him guilty of any crime or offence, and then without having heard or- allowed him an opportunity of being heard, wrongously, and in violation of said contract of association or constitu- tion, deposed the pursuer from his office as a minister of the said church, to his loss, injury, and damage i — Damages laid at £3000." When the case came on for discussion, the following question was put by Lord Tvort. — I do not know whether I am in order in saying so at this stage, but, as it is a matter of importance, I wish to know whether we are to go on with the case under the persona standi of the General Assembly of the Free Church t Lord Advocate. — That question must be asked of the pursuer. We have been called into Court as the General Assembly of the Free Church, and we have accordingly come here. If we are ill called, your Lord- ships must put it to the pursuer whether he is prepared to vindicate the execution of the summons. and character sought by him. "With the view, therefore, of avoiding protracted dis- cussion on this branch of the Cause, the Lord Ordinary, with, as he understands, the acquiescence of both parties in the course now adopted, has pronounced the prefixed interlocutor." 172 LEADING ECCLESIASTICAL CASES Fmser. — The objection to the citation, if well founded, had not been taken by the defenders. He had called the defenders into Court, and they had pleaded, and no objection had been taken to their citation. The Free Church of Scotland, although a voluntary association, might be represented by its office-bearers nominated by them. It was not necessary that all the members of a voluntary association should be cited, if they agree that a certain number of them should represent the rest. This body had been recognised by the Legislature, and under this very name. The 14th and 15th Vict., cap. 78, passed in July 1851, was a local and personal Act for the better raising and securing of a fund for a provision for the widows and children of the ministers of the Free Church ; and all throughout that statute this body of Christians was spoken of under the name of the Free Church of Scotland ; and its re- gulating and controlling body was called the General Assembly of the Free Church of Scotland. It was not denied on the other side that the body was well represented by those gentlemen who were named in the summons. There was no plea taken to this effect ; and until there was a plea to that effect, it must be held that they had been well called. Perhaps it might remove any scruple that might exist on the subject if the issues were altered thus : — ■" Whether, according to the contract or constitution of the body calling itself the Free Church of Scotland." That was the very language of the Act of Parliament. Lord Advocate. — The action had now proceeded for two years with- out any objection being taken on the other side, and without any difficulty being found by the Court in hearing the pursuer. There had been no difficulty about the persona standi of the defenders when they were found liable in expenses in the former part of the case. LoED Peesident (M'Neill). — The Free Church itself is not called as a body. It is the General Assembly of the Free Church that is called. Mr. Eraser's argument seems to me to be pointed to the objection that the Free Church was called. Lord Ivoet. — I look upon this as so serious a matter that I think it is time that it should be settled one way or another. It was a technical objection, if it was anything. But seeing that the objection was serious in itself, and having observed precedents in the books of its having been sustained in other cases — as, for instance, in the Bishop of Aberdeen's case, and also in the former Auchterarder case — I think that it should be submitted to the other Division. If we are going to recognise every voluntarily constituted body as having a persona standi in such questions as the present, I do not see the end of it. I should wish to have the point determined, as it would only make matters worse to go on whUe it was not settled. I am not in the least moved by the Act of Parliament noticed by Mr. Eraser. That was nothing more than a Friendly Society Act, such as the Faculty Fund Act. DECIDED IN THE COURT OF SESSION. 173 LoED Deas. — It may be right that I should explain, in a word or two, the general bearing of the view which occurred to me, and which I threw out at the last advising of the case. The sixth plea of the defenders is, that the General Assembly, as such, could not be subjected in damages, nor could any decree for money be pronounced against them ; and the seventh is that the moderator and clerks are not responsible for the acts and proceedings of the Assembly, and cannot be subjected in damages in respect of these acts and proceedings as representing the Assembly or otherwise. These pleas, if they were anything at all, were pleas of a preliminary and pre-judicial nature, and they necessarily resolve into this, that all the parties interested are not called. If these pleas are to be founded on, they ought to be pleaded as preliminary and pre- judicial ; or the defenders might take another course, namely, put in a minute agreeing to hold themselves to represent all parties interested. The objection arose, in the first instance, as against the action, because it was the business of the pursuers to call all parties interested. It had been decided by the House of Lords that it vras pars judicis to see that all parties interested were called, and the objection of the defenders was that aU parties were not called. If these pleas were to stand on the record at all, and were not to be abandoned, I must come to the best opinion I can form — ^namely, that all the parties interested are not called ; and for my own part, I am quite prepared to give effect to that objection. I think, if these pleas are not waived, and if the defenders do not choose to hold all parties called, there is no alternative for the pursuer but to call all the parties into the field, as was done in the Auchterarder case, in which the Court held that the proper defenders were all the members of Presbytery. If an action of damages was called against the General Assembly of 1858, and if the pursuer did not call into the field every member of the Assembly, so far as they could be found, he did not do that which was necessary to sustain his action. Therefore my opinion is that those pleas stated by the defenders necessarily resolve into this, that, whether the defenders choose or do not choose to plead them in limine, the Court must dispose of them in limine, and could not allow them to remain behind tiU a judgment was pronounced, which might turn out to be a judgment against nobody at all, at least no one against whom it could be enforced. Lord Advocate. — If it he pars judicis to take this objection, it ought to have been taken long ago ; for in absence, under this hypothesis, of the proper defenders, the Court had disposed of the two most important pleas on record. The sixth and seventh pleas had nothing to do with who the parties were. They related entirely to their liability when called. The sixth was a plea that in whatever way the pursuer might 174 LEADING ECCLESIASTICAL CASES bring the general Assembly of 1858 into Court, they could not, as an Assembly, be made liable in damages. He declined to state these pleas in a sense in which they never were intended. He disclaimed any intention of throwing obstacles in the way, but he declined to assist the pursuer further. On the merits of the proposed issues, the Lord Advocate for the General Assembly objected to the proposed issues as entirely inadmissible. The proposal to put it to a jury to say what was the effect of an appeal from an inferior to a superior Church Court, and what were the powers of the superior Church Court on such appeal, according to the constitution of the Free Church, was unprecedented and unworkable. But, apart from this, there was, in the first place, nosuflBicient statement on record of any contract, or of any violation of contract, to entitle the pursuer to the proposed issues : and, in the second place, the statements of the pursuer himself shewed that the General Assembly, in acting as it was said to have done, was acting in a matter solely within its own com- petency, and in regard to which, without an allegation of malice, it could not be made responsible. It had been decided that the Civil Court could not take up any objection or appeal against a judgment of a Church Court in a matter properly before it upon a point of form or procedure.^ Besides, the collective representative body called the General Assembly was not the proper defender. Such an action should be against individuals, for their individual actings. A public body could not be made liable unless it acted maliciously, and malice could not exist in a public body as such, but only in the minds of individual members. Argued for Dr. Beith (the moderator) and the other two individual defenders, members of the General Assembly ; — The defenders having been in the exercise of a legal and proper office in doing the acts libelled, it was essential that malice should have been alleged against them. In this respect there was no distinction between the acts or judgments of a Court of the Established Church and those of a Court of a dissenting body.' The allegation that the Assembly acted beyond its competency could not do away with the necessity of a relevant allegation of malice. In averring malice it was not enough to say in general terms that an act was done maliciously : circumstances inferring malice must be set forth. The pursuer's allegations were defective in this respect. In the Auchterarder case' the nature of the wrong complained of was different. It was a refusal on the part of the Presbytery to do an act which it was their imperative duty to do, and as to which they had no discretion. ' Lookhart v. Presbytery of Deer, 5tli July 1851, Session Reports, vol. xiii. p. 1296 {supra, p. 29) ; Sturrock v. Greig, 3d July 1849, Session Keports, vol. xL p. 1220 (supra, p. 1). ^ Auchincloss v. Blaek, IBth March 1793, Hume's Decisions, 593 ; Brownlee v. Scott, ib. 596 ; Maclean v. Fraser, 19tli May 1823, 3 Murray's Rep. 353 ; Macdougall II. Campbell, 7th March 1828, 6 Sh. 742 ; Barclay AUardyce v. Robertson, 1830, 4 Wil. and Sh. App. p. 102 ; Edwards v. Begbie, 28th June 1850, Session Reports, vol. xii. p. 1134, etpostea. 2 Fergusson v. KinnouU, llth July 1842, 1 Bell's App., 702-15, per Lord Brougham. DECIDED IN THE COURT OF SESSION. 175 Argued for the pursuer ; — The pursuer complained — first, of a matter being taken up and decided by the Assembly, and disposed of, with regard to which he had no opportunity of being heard, and which was not competently before the house ; and, second, of being deposed without being allowed to speak a word in his defence. To say that such things were mere forms of process was an abuse of words. There was a relevant averment of a breach of the contract or constitution ; and in regard to the difiiculty that under the first issue the G-eneral Assembly alone was Called, it was maintained that the action was properly laid ; at all events, it was properly laid as an action of reduction.' Banking and commercial companies could sue and be sued through their managers and directors, and he contended that what was competent in regard to such companies was equally competent with regard to associations for religious purposes. The Free Church was an association or partnership ; and although the General Assembly was a mere representative body, and not the complete association, the pursuer was surely entitled to call into Court the body which did him the wrong, under the name assumed by the wrong-doer, in order to get that sentence set aside. There might be a practical difficulty in enforcing a decree for damages against persons not named in the decree ; but if he directed his action against the body who did the wrong, he would at least have an opportunity of vindicating his character. In the case of the General Assembly of the General Baptist Churches v. Taylor,^ it was held by the Lord Ordinary (Jeffrey) that the General Assembly of the Baptist Churches, together with certain members appointed for the purpose by the General Assembly, had a good title to sue for a legacy left to said General Assembly. They sued under the name of the General Assembly of the General Baptist Churches, and certain persons, being a committee of the Assembly appointed for the purpose of conducting the action. The objection was taken that the action was improperly brought, and that the Assembly, not being an incorporated body, had no title to sue ; but Lord Jeffrey repelled that plea, and looked upon the pursuers in this action as in the same circumstances- as assignees in a trust for the General Assembly, by whom they were appointed to conduct the case. The way in which that decision was applicable to the case now before the Court was this : It had been ruled in the case of Oruickshank v. Gordon," that the moderator, the first and second clerks of the General Assembly, as representing the Assembly of which they were office-bearers, and as individuals, and the procurator for the Church, were properly called as the defenders. That was an action of reduction of the deposition of the Strathbogie ministers against the General Assembly. Now, such was the law of the Church of Scotland, that the moderator and clerks of the Assembly represented the Assembly ; and the pursuer averred ' North of Scotland Banking Company v. Duncan, June 25, 1857, Session Reports, vol. xix. p. 881 ; Commercial Bank v. PoUok's Trustees, H. L., July 28, 1828, 3 W. and S. 365 ; Bow v. Patrons of Cowan's Hospital, Dec. 6, 1825, 4 Sh. 276. 2 June 17, 1841, Session Keports, 3 D. 1030. 3 March 10, 1843, 5 D. 909. 176 LEADING ECCLESIASTICAL CASES and offered to prove that the Free Church had adopted the laws of the Church of Scotland, and, amongst others, this law. That brought the case to the same point as the General Assembly of the Baptist Churches, who had made a special appointment of a committee to sue for the legacy. The Court sustained the action, not merely at the instance of the committee, but they sustained the General Assembly as entitled to sue along with this committee. If in this particular case the General Assembly of the Free Church had appointed a special committee to represent them, that committee's title would have been sustained. But instead of appointing a committee for each particular business that arises they had a standing law that the moderator and clerks should represent them in all suits, and therefore a decree against thefii would be binding upon the members of Assembly. The counsel who had appeared for the General Assembly had disclaimed any objec- tion on account of their citation being under that name. No plea had been taken that all the parties interested were not called, and no plea had been taken that it was incompetent to reduce the sentence by reason of the citation of the General Assembly. The only objection that had been taken was, that they could not make it good against this dissolved Assembly. It was said that the pursuer could not get the decree enforced. That plea could not be resorted to, because this General Assembly had ample funds at its command, which it had the power of appropriating to any purpose it pleased. Granting, for the sake of argument, that it was incompetent to call unincorporated bodies under their names as associations, yet if they called along with them individuals as representatives, and upon whom they could operate, and by whom their suit should be conducted, it came within the principle of the special appointment of the committee. There might be dif-. Acuities in the way of carrying out personal diligence, supposing they should think of doing that, against the members of the Assembly. But this was the pursuer's concern. There might be also difficulty in carrying out diligence against their property ; but if he was content to undergo the inconvenience of such a decree instead of selecting a few individuals, the inconvenience of it would not make it incompetent. But if it should be held that he could not claim damages, he maintained the alternative plea that this action of reduction was competent, and then the issue would stand as it was, simply striking out the schedule of damages. It had been asked by one of their Lordships what patrimonial interest the pursuer could shew for a mere decree of reduction.' He answered that by referring to the second article of the condescendence, where it was stated that the pursuer was entitled to a revenue from the sustentation fund of the Free Church of £138. If he could clear away these sentences by reduction a petitory action was competent to him for that stipend. In like manner he was in possession of the Free Church manse of Cardross. Unless these decrees were cleared away a petition to the Sheriff for his ejection would be competent. This sustentation fund was a fund which was composed of contributions of members of the Free Church, and also of legacies bequeathed, which had been in- vested, and the interest of which was applied to the support of the minis- DECIDED IN THE COUET OF SESSION. 177 ters. Every minister, according to the regulations of the Free Church, was absolutely entitled to demand an equal dividend from the sustenta- tion fund, in the same way as a parish minister was entitled to demand his stipend. If, therefore, he cleared away these sentences of suspension and reduction he cleared the way for a petitory action. With regard to the second issue the pursuer did not want damages against the General Assembly, and he adopted a suggestion that the schedule of damages should be amended so as to limit the claim for damages to the three individual defenders. In regard to the contention of the Solicitor-General that the word " maliciously" should be inserted, it was maintained that this was unnecessary. In the case of Edwards v. Begbie all that was allowed in the issue was the phrase "falsely and calumniously, and in violation of their duty;'" that was a direct precedent, as that was the case of an unincorporated non- established religious body, the vestrymen of St. Paul's, Carraber's Close, who had the same privilege unquestionably as the General Assembly of the Free Church of Scotland. The issue proposed in this case was precisely the same, only substituting for the words " violation of their duty " the words " violation of the contract of the association." If wished, the pursuer would be content to substitute the words " viola- tion of their duty," but the words "violation of the contract" raised the question quite as well. The issue in that case was not adjusted of consent. The proposal was accepted by the pursuer, but accepted at the bayonet's point. It was one of those cases in which the parties fought until they saw that the opinion of the Court was indicated, and then came to an arrangement. In the case of Clark v. the Presbytery of Dunkeld, known as the Lethendy case, the issue was whether, on a certain day, the defenders wrongfully refused to take the pursuer on trials as presented. It was just the same as the Auchterarder case, and the only word employed in the issue was the word wrongfully. It was held that the defenders had acted wrongfully, and in opposition to the law requiring them to take the presentee on trials. Would it make the present case a whit clearer if there had been a judgment of the Court declaring that the pursuer was entitled to be heard before being condemned % They had the law of the Free Church, that no man was to be condemned until heard in his own defence. No doubt it might be said by the defenders — " If we were wrong we acted in good faith. We directed our judgment to the matter, and decided according to our judgment." But where the ordinary rule of justice recognised by every civilised country in the world was completely ignored, the defenders could not be allowed to shelter themselves under the allegation of acting in good faith. Lord Dbas. — The action is directed against three individuals ; but the wrong, if it was done at all, was a wrong done by the whole Assembly. Suppose the pursuer was right in all other respects, can you select three of these individuals without alleging malice against them ? ' Borthwick on Libel, 309. N 178 LEADING ECCLESIASTICAL CASES Fraser. — That was a point which had not been taken up by the defenders. In cases of alleged delict the pursuer might select any one wrong-doer, and make him responsible. No doubt this depended m some degree on the nature of the wrong alleged. But it was not confined to cases of active fraud or delict. In cases of crassa negligentia the pursuer might select his victim.' In reply to another question by Lord Deas, it was stated for the pursuer that the issues were intended to try not merely the question of damages but of reduction, and if a verdict were returned for the pursuer, the Court would be moved in applying that verdict to reduce the sentences, and then to decern for the damages — to decern for the damages, however, only against those defenders against whom there was a conclusion for damage. If under the second issue, for example, damages should be returned against the defenders, the Court would apply it with reference to the conclusions of the summons, and only decern against the individual defenders. Lord Advocate. — I wish there may be no misunderstanding upon one or two points. I maintain that, if this issue is only proposed as a preliminary step to reducing the sentences to any effect whatever, that that is entirely incompetent, and beyond the powers of this Court. As to the persona standi of the Free General Assembly I wish there should be no mistake about it. It is not the fault of the defenders that the pursuer called the wrong parties, if he did call the wrong parties. It was not the duty of the defenders in any sense, legal or moral, to amend the summons of the pursuer, if the summons of the pursuer was defect- ive. It was their right, and they have exercised, and they stand upon it, to plead in defence to this summons in the precise terms in which they were called. If anything be contrary to the elementary principles of justice it would be this — to permit a party to be called under a designation in which the defender was not allowed to plead. Now, in regard to the pleas put upon the record — the sixth and seventh — they are pleas I am entitled to maintain on the footing on which I have explained them. They do not mean, and I object to them being tortured to mean, that all parties are not properly in Court. They neither say so, nor do they imply that in meaning. They have this meaning — ^which is a totally dififerent thing — that, if a decree were competent in terms of the summons, it could not be enforced against these parties. They mean nothing but this — that these parties being here, cannot in law, under the conclusions of the action, be subjected to damages, or have decree against them ; and that not because they are not well called, but because, from the nature of the constitution, they are not proper defenders in the action. If the pursuer has a claim against anybody else he may make it. In reply to questions from the Lord President and Lord Deas, The Lord Advocate said that the sixth plea amounted to a plea to ^ Per Lord Campbell in Auchteravder case, 1 Bell's App. 729 ; Western Bank Liquidators v. Directors, Jan. 27, 1860, per Lord Justice-Clerk, Session Reports, vol. xxii. p. 476. DECIDED IN THE COUET OF SESSION. 179 this effect, that, supposing all the other pleas were wrong, no decree for money could be pronounced against the General Assembly LoED President, to the pmrsuer^s counsel ; — Supposing the Court are of opinion that the action on the first issue cannot be sustained, is the record in such a state as to enable the pursuer to proceed on the second issue ? Patton, for the pursuer ; — In the supposed contingency, we think that the action could not be pursued, and that we must raise a new one. At advising, — LoED Peesident (M'NErLi;). — This case has been brought before the Court more than once in its previous stages — first, in reviewing the judg- ment of Lord Benholme upon certain objections or pleas that were urged by the defenders against satisfying the production, and afterwards in re- viewing the judgment of Lord Jerviswoode repelling certain pleas urged by the defenders as grounds maintained by them for dismissing the action. The pleas that were so repelled were in substance that it was not competent for the Civil Court to entertain an action which concluded for reduction of the sentences in question, because these sentences were spiritual acts, and did not relate to a question of civil right, but only to a spiritual ofi&ce. The case now comes before us in a shape which raises other pleas that have been stated by the defenders, and which, if well founded, would go to exclude the pursuer from obtaining any issue for trial upon the record which has been made up in the case. The pursuer complains of two sentences of the General Assembly of the Free Church — ^the one pronounced on the 24th or 25th May 1858, and the other on the 1st June 1858. By the first of these the pursuer was found guilty of certain acts of immorality, and was suspended from the office of the ministry sine die, and it was declared that he could not be restored to the office of the ministry except by the General Assembly ; the charge of the congregation at Cardross was declared vacant, and the Presbytery of Dumbarton were ordered to take steps to intimate the vacancy to the congregation. By the other sentence complained of the pursuer was altogether deposed from the office of the ministry. In consequence of these proceedings the pursuer has brought two actions, each of them concluding for reduction and for damages. The first of these actions has reference to the sentence suspending him from the ministry, and it con- cludes to have that sentence reduced and set aside, and to have the pursuer reponed thereagainst in integrum, and it also concludes for £500 of damages. The parties called as defenders in that first action to which 180 LEADING ECCLESIASTICAL CASES I have alluded are the General Assembly of 1858 and certain of its oflEice-hearers — namely, the moderator and clerks, as representing the General Assembly. The grounds of that action are that the General Assembly had no power to pronounce such a sentence, — that it was not within their competency to do so, — not that the tribunals of the Free Church had no power to take cognisance of such matters, or to pro- nounce a sentence of suspension in respect of such matters, but that, according to the constitution of the association called the Free Church, the matters — or some of them — on which the General Assembly took upon itself to adjudicate, although they had been competently brought before the Presbytery to which the pursuer was amenable, and had been competently adjudicated upon by the Presbytery, had not been brought before the General Assembly at all, but that the Assembly, stepping beyond the powers committed to it, thought fit, without authority, and even without notice, to enter upon the consideration of those matters of charge against the pursuer, to hold him guilty, and thereupon to suspend him. Such is the nature of the first action. The second action has reference to the subsequent sentence of deposition, and it concludes to have that sentence reduced and set aside, and the pursuer reponed thereagainst in integrum, and it concludes like- wise for damages, which are laid at £3000. The parties called as defenders to the second action are the General Assembly of 1858, and the moderator and clerks as representing the General Assembly, and also three members of the Assembly as individuals ; and it is from these individuals that the damages are asked. The grounds of that action are that in pronouncing that sentence the General Assembly acted in viola- tion of the constitution of the association, inasmuch as the pursuer had never been served with a libel, and the tribunal refused to hear him either in defence or in explanation. The general proposition maintained by the pursuer in both actions is, that the General Assembly acted in violation of the constitution and rules of the association, that by doing so they inflicted grievous injury on him as regarded his patrimonial interests and his character, and that for these injuries he is entitled to redress by the Civil Court. The defenders in limine maintained that the Civil Court had no right to interfere, and, in particular, had no right to call for production of the sentences complained of, these sentences being of a spiritual character. Looking to the allegations of the pursuer, which at that stage we were bound to assume as capable of proof, we had no difficulty in repelling that preliminary defence, and ordering the pro- duction to be satisfied. That having been done, and the actions having been conjoined, defences on the merits were given ia, and a record was made up and closed. On that record the defenders repeated, in another DECIDED IN THE COURT OF SESSION. 181 form, their pleas against the competency of this Court interfering with the sentences. The pleas maintained on the part of the General Assembly to which I now allude were : — (1.) That the sentences com- plained of being spiritual acts, done in the ordinary course of discipline by. a Christian church tolerated and protected by law, it is not competent for the Civil Court to reduce them, and the action should therefore be dismissed. And the third plea was, that the actions, in so far as they conclude for the reduction of the sentences complained of, do not relate to any question of civil right, and that the actions cannot be maintained. Similar pleas were maintained in the other action. The first was that the sentence complained of, being a spiritual act, done in the course of discipline by a Christian church tolerated and protected by law, it is not competent for the Civil Court to reduce it ; and in any view, reduction is not the proper legal remedy against the sentence complained of. The fourth was, that the sentence sought to be reduced does not relate to any question of civil right, but only to a spiritual office, and that the con- clusion for reduction cannot be entertained. The Lord Ordinary repelled these pleas, and the defenders reclaimed, and they repeated substantially the argument they had maintained in support of their preliminary defences against satisfying production ; and the Court affirmed the inter- locutor of the Lord Ordinary. It was held that the reductive conclusions were not out of place ; that they were properly introduced, so that if necessary the sentences might be set aside in so far as they could bo founded on as an obstacle to obtaining the redress for civU injury. That was announced as the view taken by the Court when the defenders were insisting against the step of satisfying the production ; and it was re- peated when the defenders reclaimed against the interlocutor of Lord Jerviswoode repelling the pleas I have now read. At that second discussion Lord Ivory called attention to the circumstance that the actions, and particularly the first action, was directed against the Free Church Assembly, as such, and expressed a doubt whether that body could be a defender, or could be called by its officials, or could plead in its own name. I think Lord Deas then threw out a suggestion as to how that difficulty could be obviated, if the parties were so disposed. The" case went back to the Lord Ordinary upon our adhering to his interlocutor, to be put in train for having the claim for damages disposed of. The parties being at variance as to matter of fact the Lord Ordinary desired to have the facts ascertained, and with that view his Lordship appointed the pursuer to give in the issues on which he desired to go to trial. The pursuer gave in issues, which we have now before us. The first of these issues appears to have reference to the first action, and the second issue to have reference to the second action. The first issue is — 182 LEADING ECCLESIASTICAL CASES (reads issue as quoted above, p. 171). Tlie second issue, wHch has reference to the sentence of deposition, puts the question — (reads second issue as quoted above, p. 171). These were the issues that were presented to the Lord Ordinary as those on which the pursuer desired to go to trial.; and at that stage, as not unfrequently happens, a discussion arose before the Lord Ordinary not merely as to the phraseology of the issues, but as to whether, under the actions as laid, the pursuer was entitled to any such issues, or to any issues at all. The Lord Ordinary reported that matter for the determination of the Court, and counsel were heard upon it. At that discussion Lord Ivory again called attention to the circumstance of the Free Church Assembly, as such, being the sole defenders in one of the actions, and being a defender in the other action ; and Lord Deas again suggested that the difficulty might be removed if parties were disposed to do so. Neither party seemed to relish the suggestion. The form in which the difficulty was suggested did not appear palatable to the defenders, and the remedy suggested did not appear acceptable to the pursuer. It was said then for the pursuer that appearance had been made for the General Assembly in its own name, that they had given in answers to the summons, and had pleaded in the cause, and therefore could not now repudiate their own existence or their position as proper defenders in this action. And it was said for the General Assembly that, having been called as a body, and having been allowed to plead, it was too late to question their right to maintain the litigation to its end in the same capacity in which they had been called. It is obvious that such observations were not sufficient to solve the difficulty; — at least not without a clear explanation as to what was intended to be maintained under the sixth and seventh pleas stated by the defenders, the General Assembly. The sixth plea is, — " The General Assembly of the Free Church cannot, as such, be subjected in damages, nor can any decree for money be pronounced against it in the first action ; more particularly, the General Assembly of the said Church which met in 1858 cannot as such be subjected in damages, nor can any decree for money be pro- nounced against them in the first action." And the seventh is, — " The moderator and clerks of the Assembly are not responsible for the acts and proceedings of the Assembly, and cannot he subjected in damages in respect of such act or proceeding as representing the General Assembly or otherwise." While that sixth plea so stood it was obvious that the remarks which were made in reference to what was said by Lord Ivory and Lord Deas could not be satisfactory, and the defenders were accordingly asked whether they meant to insist on the sixth plea for the General Assembly, and, if so, to explain the import or effect of that plea. They were so asked by the Court. Some of the answers given to these DECIDED IN THE COURT OE SESSION. 183 inquiries were not very satisfactory. They were various answers. One answer made by the counsel for the defenders to a question which, I think, was put by myself, was, as I noted it at the time, that under that plea it would at a convenient stage be maintained that the General Assembly were not proper defenders in the action. Now, if that plea be well founded — that the General Assembly are not proper defenders in the action — and if there is no other defender in the action, it seems to follow that the action cannot be maintained to any practical effect or result against anybody, and that no decree for damages that may be pronounced in it can be available to the pursuer, and, consequently, that no issues for damages should be sent to trial. At the discussion which took place on the issues we were favoured with a good deal of argument, and upon that particular point to which I have now alluded there was some argument, though it did not form the greater part of the subject of discussion. But it was pleaded to us, and that answer was made which I have alluded to, and I have therefore given my attention to that plea, and I am of opinion that in the first action there is not here any defender against whom decree for damages can be obtained or enforced. The action is directed against the General Assembly of the religious denomination calling themselves the Eree Church of Scotland, and the Eev. Dr. A. Beith, the moderator, and the Eev. P. Clason and the Eev. Sir H. Moncreiff, both residing in Edinburgh, the Assembly's clerks, as representing the General Assembly. I am of opinion that it is not competent so to convene that body, or aggregate of persons, in an action of damages. They are not a corporation ; they are not a joint-stock company that are to be sued by their office-bearers. They are a certain selected number of the members of a voluntary association — members chosen and assembled according to the rules of the association, to transact a certain part of its business, and then to be dis- solved. It was said that they met as a court, and in their collective and gwcm judicial character did the wrong complained of; but it does not from thence follow that in their collective capacity they can be convened in an action, and subjected in damages. There is nothing on the record to shew who were the individuals composing the body, or composing the alleged majority in the division which is said to have taken place. There is nothing to shew who were the doers of the wrong that is complained of. The wrong' — I mean the wrong inferring liability for damages — if done at all, was done by the members of the body who voted for and carried the sentence complained of as having caused injury. Eor these reasons I am of opinion that the conclusion for damages cannot be insisted in, and that no issue for damages should be allowed in reference to the matter involved in the first action in which the General Assembly are the 184 LEADING ECCLESIASTICAL CASES only defenders. There is no record to shew a case as against any person whatever. It is against that hody such as I have described it. Now, if the conclusion for damages cannot he insisted in or sent to trial, the only other conclusions in that action would be the reductive conclusions. In regard to these conclusions I am of opinion that if dissevered from the demand for damages they cannot in this action be proceeded with as separate and independent conclusions. I form this opinion upon the same grounds on which I formerly rested my opinion that the reductive conclusions were competently and fitly coupled with the demand for damages. It was not maintained by the pursuer, and certainly not stated by the Court, that these conclusions were to be read and construed in the widest sense which the language of them can upon any reading admit of — that they could be read as extending to anything but civil consequences. They must be read with reference to the action in which they occur, and with reference to the demand which the pursuer is making for redress in that action on account of a civil wrong. The redress which he is here asking is damages ; the party from whom he is asking that redress is the General Assembly. He is not asking to have it declared that he is still entitled to the emoluments of his former offices ; the proper parties to resist any such demand are not here. It is not alleged that the stipend was payable by the General Assembly. The demand here is a demand for damages against the General Assembly. The Assembly have no interest in this action ; they are not the proper parties for that demand ; and the parties who might have an interest in supporting the sentence, as against another demand, are not here. I therefore read these conclusions for reduction as auxiliary to the demand for redress which the action contains, and as proper and fit to be there in case the sentences should be set up as a bar to the demand, and to give the power to sweep them out of the way, so far as they could in any view be construed as an impediment to getting at once to that demand. But I read them with reference to that demand. I read the summons as shewing the purpose for which they are there. They are there as auxiliary to the demand for damages ; and being of opinion that the demand for damages cannot be maintained under this action, I am of opinion that these conclusions, which are auxiliary to that demand, and which are only th6re for the purpose of enabling the party to get at that demand without impediment, and with reference to the parties entitled to resist that demand for damages, cannot be maintained either. There is another view of the matter which might lead to the same result, though upon other grounds, and it is this : The matter with which the General Assembly were dealing, as I have already observed, was a matter which had been brought before the Presbytery. It was com- DECIDED IN THE COURT OF SESSION. 185 petently before the Presbytery. The Presbytery is a tribunal -which exists by the rules of this voluntary association, and is capable of dealing ■with such matters ; and the parties had voluntarily submitted themselves to it. They erected that tribunal for the determination of questions which might be raised in reference to them, and it is not contended that the tribunal of the Presbytery had no power to pronounce such a sentence upon the matter submitted to them. The Synod and the General Assembly are also tribunals which the parties have reared up for the government of 'their own affairs, and for the discipline of their own Church. The matter which was dealt with here was a matter which came before them as acting as a quad court or tribunal so constituted by the voluntary act of the parties concerned. If they had refused to entertain questions such as were fit to be entertained, and proper to be entertained before them as between the parties, and to decide them, they would have been refusing to perform the duty which the members of the Free Church were entitled to expect to be performed at their hands. The matter which they were so asked to deal with was a matter on which they were to adjudicate. It is contended that the matter which they did adjudicate upon — the guilt or innocence of the party of certain charges — was not competently before them, and, therefore, that they were beyond their power ; but they were bound to adjudicate upon this question — whether it was competently before them or not? I do not mean to say that, by dealing with that question in a wrong way, the members who do so may not subject themselves to damages ; but when they are required by the parties to exercise a judgment — when they are placed by the parties in a position in which they are to exercise a judg- ment in reference to a questionable matter or mode of proceeding as to a subject which the Church Courts can entertain — till I hear something more I am disposed to think that, with reference to such a question, in maintaining that they had gone wrong, it would require to be alleged that, in coming to the decision at which they arrived, they were actuated by malice. But I do not think that question is necessary for the disposal of this action. Then we come to the matter of the second action. Now, at the con- clusion of the last discussion I put a question to the counsel for the pur- suer, whether, in the event of the Court being of opinion that the first action could not be maintained, they could consider that they could maintain the second action under the record as now presented ; and the answer that was made was, that, in the event of the first action being put out of Court, the second action could not be maintained under the pre- sent record. I have no doubt that that answer was returned after a full and wise consideration of the case, and it would indeed be a strange case 186 LEADING ECCLESIASTICAL CASES — at least a very disadvantageous case for tlie pursuer — presented under the second action,, to go upon this record, mutilated as it would be by taking out of it the cardinal matter of the iniquity, as is alleged, of the sentence of suspension, which sentence deprived him for the time of the status of a minister, which deprived him permanently of the emoluments which he was possessed of as a necessary consequence, and which left nothing to be considered but the further question in regard to the deposition, which is a stronger form of the same matter. The sentence of suspension found that he could not be restored except by a deliverance of the Assembly, and I suppose that if he were deposed the Assembly could restore him if they thought right, or reappoint him or permit him to be restored to the office of the ministry. But at all events the answer which I got was that the party could not insist in that action, and if there be anything in the suggestion that I have made as to the parties here acting in a quasi judicial character, then as the allegation of malice which was originally contained in this action has been dropped out in the issue that is proposed to be taken, and as in answer to the ques- tion put by Lord Curriehill it was stated that it was not to be insisted in, and that that action cannot be gone on with, the conclusion which I have arrived at is that the action should be dismissed. Lord Cueriehill, after stating the form in which the case came before the Court for decision, said — We have not until now been able to consider the merits of these claims of damages, in consequence of the defenders having hitherto been endeavouring to preclude us from doing so by urging pleas of a preliminary character. But at length we have had the merits of the claims discussed before us, and we have now to determine whether or not the allegations of the pursuer in the closed record, supposing them to be true, would be relevant in law to sustain the claims. The pursuer is insisting in two different claims of damages against two different parties, — the one being for £500 against the General Assembly of the year 1858 of the Free Church of Scotland, — ^the other being for ,£3000 against three individuals, the Eev. Drs. Beith, Candlish, and Bannerman, as individual members of that body. The merits of these two claims must be considered separately. I. The ground of the former of these claims is that on 24th May 1858 the General Assembly, in pronouncing a sentence suspending the pursuer from the office of minister of the Free Church of Cardross, transgressed the conditions of the constitution of the Free Church. The pursuer admits that, according to that constitution, which was binding upon him as one of the ministers of that Church, the General Assembly had authority to adjudicate, to a certain extent, in an appeal which was DECIDED IN THE COUET OF SESSION. 187 regularly brought before it, of a libel wMch bad been instituted against him at the instance of the Free Church Presbytery of Dumbarton ; but he alleged that the Assembly then exceeded its authority by deciding a matter which, although it was included in the original libel, was not also included in the appeal. There were three counts in the accusations which were made against him in that libel ; and when the case was brought by appeal and complaint before the General Assembly that body pronounced sentence upon each of the three counts ; and what the pur- suer maintains is, that it was ultra vires of the Assembly to do so as to the last of these counts, because it had not been included in the appeal. But there is a noticeable absence of two things in the pursuer's allega- tions on this subject. One of these is that the sentence of the General Assembly is not alleged to have been incompetent or irregular as to the other two counts, although the second of these counts was by that sentence found to be proven. And the other is that the General Assembly, although it is said to have acted incompetently in so far as it pronounced sentence on the third count, as well as on the others, is not accused of having done so maliciously and without probable cause. Hence, while in this question of relevancy we must assume the truth of all the pursuer's averments, including the averment that to a certain limited extent the Assembly exceeded its powers in performing its judicial functions, we are not to assume that it was otherwise than in bona fide they feU into that alleged error. In other words, the accusation which, in the record, the pursuer makes against the defenders, amounts only to this, that, in pronouncing this sentence, they in bona fide fell into an error in judgment. The pursuer further alleges that a sentence of sus- pension followed upon that deliverance of the Assembly, and that that sentence was also incompetent. The meaning of this allegation can only be that the sentence was too severe, because, since the conviction is not alleged to have been incompetent, except to the extent I have mentioned, of course it was competent to the Assembly to inflict censure or punish- ment corresponding to the offence of which the defender had been regularly convicted. But whether his allegations import that the sentence was entirely or only partially erroneous, still the error imputed to the Assembly is nothing more than an error of judgment into which it fell while bona fide exercising its judicial functions. Such being the substance of the averments made by the pursuer in support of his first action, let us, before considering their relevancy, see clearly what the kind of redress is that he is claiming. In particular, we must take care not to confound what he is claiming with other two things which he is not claiming in these actions. In the first place, he is not here seeking a review of the sentence of the Assembly. This 188 LEADING ECCLESIASTICAL CASES action doos not conclude that this Court either should alter the deliver- ance of the Assembly upon any of the counts of the original libel, or should interfere with the sentence as a matter of ecclesiastical censure. If such were the kind of redress which the pursuer is claiming in this action I doubt not that it would at once have been dismissed as incom- petent ; both because, as a court of review, this Court could not entertain an appeal in any form from a tribunal which is not one of the judicial institutions of the country ; and also, because a remedy of that character would not have been such a matter of patrimonial right as falls under the jurisdiction of this Court. This, indeed, was judicially settled before the present action was raised. It appears from the record that, on 28th May 1858, the pursuer presented a note of suspension and interdict to this Court, praying it to suspend the proceedings of the Assembly of 24th May, and to iuterdict that body and the Presbytery from carrying the sentence of suspension into execution by declaring the pursuer's charge at Cardross vacant. But it also appears from the record that that application was at once refused as incompetent by the Lord Ordinary ; and that judgment became final. The sentence of the Assembly received effect, and the pursuer has not claimed redress of that kind in the present action. On the contrary, he has brought this action expressly on the footing, as I shall presently shew, that the sentence of the Assembly has received effect. Nor, in the next place, does the redress which the pursuer is suing for consist ia his claiming to be continued in the enjoyment of the patrimonial emoluments, which, as he says, were attached to his oflSce. He tells us, in the second article of his condescendence, that these emoluments amounted to ^174 per annum, consisting of claims on the sustentation, congregational, and other funds, and the possession of a manse, besides £iO additional payable to him as synod clerk. Had he been suing the parties who administer these fands to make available to him these patrimonial rights, and concluding that the sentence of the General Assembly should be declared to be nuU and ineffectual to bar such claims, in respect to its having been ultra vires of that body, I do not at present say whether or not his allegations would have been relevant to have supported such a claim. I abstain from stating any opinion upon that subject, because no such claim is made in this action. On the con- trary, he is suing only for redress of a different kind, expressly on the footing that, by the sentences of suspension and of deposition, he is for ever divested, not only of the ministerial office itself, but likewise of all its emoluments. In the 22d article of his condescendence his statement is that "he has been thereby most wrongously and unjustly deprived of the income derivable from the sources specified above in article 2d, and DECIDED IN THE COURT OP SESSION. 189 left, in his old age, and after a ministry of above thirty years' duration, with no means of livelihood, with his character blasted, and his peace of mind destroyed." And, accordingly, the action contains no conclusion for enforcing any right to these emoluments, or for restoring the pursuer to the enjoyment of them. And, accordingly, even were decree to be pronounced in terms of the conclusions of this action, the pursuer would, notwithstanding, remain divested both of the ministerial office itself, and of all its emoluments, while the sentence complained of, in so far as it is & matter of ecclesiastical censure, would remain in full force and effect. What, then, is the redress which the pursuer is actually claiming by this action ? He asks a decree for payment of a sum of £500, in repara- tion of the loss and damage which, as he alleges, he has sustained by having been irregularly deprived of these emoluments. And the question is, whether the pursuer's allegations in the record, even assuming all of them to be true, would be relevant to support that claim 1 I am of opinion that this question must he answered in the negative. The ground of this opinion is, that parties upon whom judicial functions are lawfully conferred, and who, in the bona fide exercise of these functions over parties subject to their authority, fall into errors in judgment, are not liable in damages to these parties in consequence of such errors. Humanum est errare. Infallibility of judgment is attainable by no man, however laboriously and conscientiously he may exert his powers to do what is right ; and if, notwithstanding a judge's best and bona fide endeavours to do so, he should be liable in damages for errors into which he might fall, such offices would be shunned by those best qualified for performing their functions. But such functionaries have an immunity from liability for errors in judgment, unless their errors arise from corrup- tion or malice. The law unquestionably confers such an immunity upon judges officiating in the public judicial institutions of the country, whether civil, criminal, or ecclesiastical, upon whom jurisdiction is conferred by the State. It also extends such immunity to private persons, upon whom parties, by voluntary agreement, confer authority to adjudi- cate in certain matters among themselves ; it being the policy of our law to encourage and support the settlement of disputes by such private arrangements. This is exemplified by the support which is afforded to arbitrations. It is likewise illustrated by those conditions which are often inserted in mutual contracts, to the effect that disputes which may arise among the contracting parties as to the subjects of their contracts shall be adjudicated upon by parties therein appointed for that purpose. Such arbitrators are not liable in damages to the contracting parties for errors of judgment into which they may happen to fall in the bona fide exercise of the functions so conferred upon them. In like manner, when 190 LEADING ECCLESIASTICAL CASES voluntary associations, constituted for religious purposes, confer upon some of their own members authority to adjudicate among them in certain matters, the law extends to the persons so appointed immunity from claims of damages, on the part of members of their respective associa- tions, for errors into which these functionaries may fall in the bona fide exercise of the authority so entrusted to them. They enjoy such immunity, — not because such functionaries become invested with any superhuman authority in addition to that which they derive from the members of their own associations, — but because these members by voluntarily conferring such judicial authority upon them are held to confer upon them likewise the privilege which the law itself attaches to the lonafide exercise of judicial functions. This is a principle which is of great importance in this country, as, in my opinion, it enters into the constitution of most, if not all, of the voluntary religious associations which have been formed in Scotland under the protection of the Toleration Acts. And, accordingly, effect has often been given to this principle in questions which have arisen between individual members or ofiBce-bearers of such associations and those whom they had voluntarily invested with such judicial authority. For example, in the case of Auchincloss, 6th March 1793 (Hume, 595), a Presbytery of the association which was denominated the Associate Burghers, having deposed one of its ministers on a charge of licentious conduct, he sued some of the members of the Presbytery for damages on the ground of the allegation being false ; but he did not allege that the charge had been made maliciously. It was held "that the defenders were answerable, if it could be shewn that, though made in a judicial form, the charge against the pursuer was truly a calumny, and was made and prosecuted in a malicious spirit ; but all agreed in thinking that the pursuer had not condescended relevantly." In the case of Smith V. Grieve, February 18, 1808 (Hume, 637), a member of the association called Bereans sued some other members of the congregation (which, according to the constitution of that body, was entrusted with such judicial authority) for damages for defamatory language used by them in a congregational inquiry as to some charges against him. It was held that they " were not liable for anything which has passed judicially in some measures at the meetings of the congregation according to the rules and usages of the Berean Society." And in the case of Edwards, June 28, 1850 (D. xii. 1134), the principle was recognised in opinions delivered by the Court (although the ultimate judgment was rested on other matters) in reference to a claim of damages made by a member of a vestry in an Episcopalian association against the other members for a defamatory sentence of that body, notwithstanding a reversal of that sentence by the bishop as having been ultra vires of the vestry. These DECIDED IN THE COUET OF SESSION. 191 cases exemplify the operation of the principle that tribunals upon which, by the constitution of such voluntary associations, judicial authority over its individual members and ministers is conferred, are not liable in damages to them for what may be done in honafide by these tribunals in the exercise of such judicial functions ; and, in accordance with that principle, I am of opinion that in the present-case the defenders, who were entrusted by the pursuer and the other members of the association with such authority, would not be liable to him in damages for what they did in the exercise of that authority, even were it true that they fell into an error to the extent alleged by him, since he does not accuse them of having acted maliciously and without probable cause. The pursuer, however, maintains that the defenders are not entitled to that immunity, because to some extent it was ultra vires of them to pronounce the sentence complained of, in consequence of the alleged irregularity in the proceeding. But assuming, as must be done in this question of relevancy, that there was such an irregularity in the procedure, still, according to the pursuer's own statements in the record, the error imputed to them as to the extent of their powers would have been merely an error in judgment in the bona fide exercise of their judicial authority. But I must here guard against any misconception as to what would be the legal effect in other respects of such a transgression of their powers as is imputed to the defenders. The conditions of the constitution of such voluntary associations are as binding upon the functionaries to which the members entrust such judicial authority, as they are upon the members themselves ; and the latter are not bound by such proceedings of the former as are beyond the limits of the powers conferred upon them by the constitution. It was upon this ground the Court, in the former stages of this case, repelled the plea of the pursuer, that their sentence, even supposing it to have been beyond their powers, precluded us from even entering upon the consideration of the pursuer's qlaims; and although that line of pleading is not now persisted in, and we are now disposing of these claims of damages, on their own merits, I do not say that the allegation of the sentence having been ultra vires of the Assembly would not have been relevant to support a claim for redress of a different kind. For example, were a claim, made by the pursuer against the administrators of the funds and subjects from which the patrimonial emoluments are derived, and were the sentence in question pleaded as a bar to such a claim, I do not say that the alleged nullity of the sentence would not have been relevant to support a claim for redress of that kind. A claim for redress of that kind would depend upon principles quite different from those which regulate such a claim of damages as we are now considering ; and I reserve my opinion upon any such case until it shall actually occur. 192 LEADING ECCLESIASTICAL CASES In many cases judgments pronounced by Sheriffs, Justices of the Peace, and others, in contravention of conditions of statutes under which they were acting, have been set aside as incompetent, even although the statutes have declared their judgments not to be subject to review ; and the rights of parties against whom such sentences were pronounced have been found to remain unaffected by such judgments, and yet the judges by whom they were pronounced were not liable in damages. So also arbiters, if they pronounce awards which are ultra vires eompromissi, are not liable in damages if they acted purely, although their awards may be found to be null and ineffectual against the parties. With regard to the pursuer's allegation that he was not heard in his defence, it appears that, even according to his own statement on the record, that allegation is of but very limited application to this case ; and even assuming it to be true to the extent set forth by him, still, as he does not allege any malicious or corrupt motive against the defenders, this allegation is also irrelevant to support the claims of damages. II. The other claim for damages against the individual defenders, is made in consequence of the General Assembly having pronounced the sentence of deposition on 1st June 1858. It falls, in my opinion, to be disposed of on the same principles. The proceedings which led to that sentence were, indeed, of a different kind ; but still, in pronouncing it also, the Assembly, and these reverend gentlemen as members thereof, must now be held to have been in the bona fide exercise of the judicial functions conferred upon them by the pursuer and the other members of the asso- ciation. In two respects the proceedings which led to the latter sentence were different from those which led to the former. In the first place, what the pursuer was accused of was — not any immorality — but a viola- tion of what the defenders alleged to be a fundamental condition of the constitution of the Free Church, and a condition the contravention of which was by that constitution, as they also allege, punishable by excommunication, summarily and without prior process or admonition. The alleged contravention consisted in the pursuer having, as already mentioned, presented to this Court a note of suspension and interdict against the General Assembly, praying that the sentence of suspension should itself be suspended, and its execution interdicted. And, secondly, the pursuer alleges that, according to the form of process prescribed by the constitution of the Free Church, he ought to have been cited under a libel, whereas he was cited under a mere summary form of process. The pursuer states that he obeyed that citation ; that he appeared before the General Assembly at the appointed time ; that, on the question being put to him by the moderator, he admitted his having presented the note of suspension and interdict ; that, on his proceeding to defend his conduct. DECIDED IN THE COURT OF SESSION. 193 the AssemMy refused to hear him j and that they thereupon pronounced the sentence of deposition against him. In the record the pursuer made an averment which, had it been adhered to, would have raised a very important question as to this claim, namely, that in this proceeding the defenders — Drs. Beith, Candhsh, and Bannerman — "were actuated by malice and ill-will towards the pursuer, and their conduct was altogether without probable or reasonable cause.'' If that allegation had been adhered to, it would have been necessary to have inquired whether the specific acts attributed to these reverend gentlemen in the record were such as fairly admitted of being so described ; and if that had been found to be the case, I am not prepared to say that the averments would not have been relevant to support a claim of damages. But the pursuer has departed from this accusation. He has not inserted it in the issues which he is seeking from the Court ; and at the discussion before us on these issues he stated that he did not insist on that allegation. He has thus, in my opinion, eliminated from his case that accusation without which his averments are not relevant to support a claim of damages ; and this question also must now be dealt with on the footing that, in pronouncing the sentence of deposition, those individuals, as well as the Assembly as a body, were bona fide exercising the judicial functions entrusted to them ; and this being the case, they would not be liable to the pursuer for doing so, even although it should be found (contrary to their own averments) that they had fallen into error as to the extent of their authority, and as to the form of process prescribed by the constitution. I therefore think that the allegations made by the pursuer in the record are also irrelevant to sustain his claim under the second action against the individual defenders. A separate defence which the General Assembly has stated against the first of these claims appears to me to be also well founded. That body had no corporate existence. It had not even the attribute which by our law belongs to a trading partnership of having to certain effects a persona standi. Its members could not bind each other either ex con- tractu or ex delicto. It had no funds ; and were a decree to be pronounced against it in terms of the conclusions of the summons for payment of £500, against what persons or against what funds could it be carried into execution 1 Moreover, the existence of that body was very ephemeral. It commenced only at the beginning of its session in May 1858, and became extinct a week or two afterwards. No decree, therefore, can be pronounced against it as a separate person in law. And its members are not concluded against as being conjunct debtors. Their names are not mentioned in the summons or record, and no decree could be pronounced against them in this action. It is not alleged that aU the members were 194 LEADING ECCLESIASTICAL CASES present when, the sentence was pronounced, and we are not told who were present and who were ahsent — who may have concurred in that sentence or who may have voted against it. I therefore think that this also is a good defence against the first action. Of course this separate defence is not applicable to the second action, in so far as it is instituted against Drs. Beith, Candlish, and Bannerman individually. The actions contain conclusions for reduction of the sentences of sus- pension and of deposition ; and it remains to be considered how these conclusions are to be disposed of. To determine this it is proper to see to what effect such reduction is sought. And, as I have already shewn, it is not sought either for the purpose of reviewing the deliverances of the Assembly on the libel on which the pursuer was tried, or for the purpose of continuing him either in the office of the ministry or in the enjoyment of the emoluments which were attached to that office. It appears, there- fore, that that reduction is sought only to the effect of the sentences being pleaded as a bar to the pursuer insisting on the only redress he is suing for, viz., his claims of damages. I see from the report of the judgment we pronounced in this case on 19th July 1861, I then stated fully the grounds of this opinion; and referring to that report (D. xxiii. 1314), I shall not now repeat them. Indeed, the second alternative in the pursuer's third plea in law is that these sentences "should be reduced and set aside in so far as they are or can be founded on as a bar to his obtaining reparation and damages as concluded for," It is thus only to the effect of clearing the way for the claims of damages the reduction of the sentences is sought. But if I am right in holding that the statements in the record, in so far as they are now insisted in, are not relevant to support these claims of damages, even on the assumption of its having been ultra vires of the General Assembly to pronounce these sentences, the object of the conclusions for reduction no longer exists, and the pursuer has not sufficient legal interest to insist for reduction of the sentences. Parties are entitled to call upon Civil Courts to adjudicate in their affairs only for the practical effect of enforcing or protecting their patrimonial interests, and not to decide arbitrarily propositions either in fact or in law in which no such interests are involved. And on this ground I am of opinion that as according to the conclusions of the actions and the statements in the record the pursuer has no interest whatever to insist in their reductive conclusions except to clear the way for his claims of damages, and that as these petitory conclusions cannot be sustained, the auxiliary conclusions for reduction are also untenable. Prom the first I anticipated that this might be the result of the discussion of the merits of these claims when the case should arrive at that stage ; and I see from the report of the first advising on 23d December 1859, I stated that DECIDED IN THE COUET OF SESSION. 195 " although the pursuer should succeed in establishing his allegation that the sentences were pronounced in contravention of some conditions of that constitution, it is not impossible that the defenders, on the other hand, might still shew that the challenge is notwithstanding excluded by some other condition of the constitution, or that the pursuer has not a sufficient legal interest to insist in it." And now, when at last the parties have joined issue on the merits of the pursuer's claims, that anticipation has been realised. In conclusion, I think it right to allude to what has created the pre- liminary litigation in this case, in which much time and expense has been wasted. Neither of the parties is free from blame in this matter. On the one hand, the pursuer in the record accused the individual defenders of having acted from malicious motives and without reasonable or probable cause, and he did not withdraw that offensive accusation until the last discussion before the Lord Ordinary, so that until then it was necessary to deal with the pursuer's claim against the individual defenders on the assumption of that allegation being true. But, on the other hand, the defenders are the parties to whom that mass of litigation is chiefly imputable. Instead of at once meeting the pursuer's claims for damages upon the merits of these claims, they for years struggled to preclude the Court from entering upon the consideration of the merits of these claims by urging two preliminary pleas. One of these was founded on a strange misapprehension of the nature and object of the actions. They insisted on their being dealt with as if the pursuer's claim could not be given effect to without the judgment pronounced by the General Assembly being reviewed and reversed by this Court, to the effect of restoring him to the clerical office from which he had been suspended and deposed. This mis-statement of the pursuer's claims was made in the following terms by the defenders in the revised case which they lodged at the outset of the litigation : — "To reduce these sentences as he asks— and it is the only thing he asks — for the conclusion of damages is not yet before the Court, and at any rate is dependent on the conclusion of reduction, is just to restore him to the office of the ministry, for the sentences deal with nothing else, and to give him, as it were, ordination of new at the hands of the Court of Session." This, as has been already shewn, was altogether a mis-statement of the nature of the present actions. ITie pursuer had indeed been so ill-advised as to present a note of suspension and interdict which had something of that aspect ; but that proceeding was at once dismissed by the Court as incompetent. And by the present actions which he afterwards instituted he not only did not seek such things, but in the record he expressly stated the reverse ; and the very ground of that redress which he is claiming, namely, payment of sums of 196 LEADING ECCLESIASTICAL CASES money in name of damages, is that the sentences in question could not he altered. The other mode in which the defenders ohstructed the progress of the cause was by pleading not only that the pursuer's claims of damages were precluded by their sentences, but also that these sentences operated as a bar to the claims, even assuming it to have been altogether beyond their powers to pronounce them. So far did they urge this plea that they maintaiaed that these sentences would have barred the claims, even if the defenders had been chargeable with the most arbitrary violation of the constitution of the association ;■ if, for example, they had deposed him without any cause whatever, and had selected him by ballot as a victim for such an exercise of their power. They maintained that plea even while the pursuer's allegation that they had acted maliciously and without probable cause was still persisted in, and of course had to be assumed to be true in considering the preliminary pleas urged by the defenders. These strange pleas were not sustained, but the discussion and disposal of them have been the means of obstructing the progress of the cause. But after years have been wasted in discussing and disposing of these pleas the parties have at last met each other fairly on the merits of the pursuer's claims of damages. On the one hand the pursuer no longer insists on his accusa- tion of malice and want of probable cause. On the other hand the Solicitor-General, on the part of the defenders, laying aside all such foreign and irrelevant matters as had till then been pleaded, and dealing with the claims as pure questions of law, established to my satisfaction the irrelevancy of the pursuer's allegations to sustain either of these claims. It is much to be regretted that the defenders did not take this position at the outset of the litigation. Lord Deas. — In these conjoined actions the pursuer complains of certain sentences or deliverances of the General Assembly of the associa- tion called the Free Church of Scotland, by which he was first suspended and afterwards deposed from being a minister in connection with that association, contrary, as he alleges, to the conditions of the contract or constitution of the body. We are all, I think, agreed as to the three following propositions : — 1. That the relative position of the pursuer and the association is that of parties to a mutual contract. 2. That the contract — assuming it to be what the pursuer avers it to be — involves matters of civil or patrimonial right. 3. That, if the contract has been violated in essential particulars, and the pursuer stands thereby deprived of his means of livelihood, this is a civil wrong for which he must be entitled to civil redress. But before arriving at the merits, properly so called, three other DECIDED IN THE COURT OF SESSION. 197 questions of a pre- judicial nature remain betind : — 1. What is the pur- suer's appropriate redress 1 2. By what form of action is that redress to he obtained t 3. Against whom does the action for redress lie 1 These three questions fall to be separately considered. The second and third may be laid aside in considering the first; but it. is necessary to consider the first before answering the two last. 1. Then, what is the appropriate redress which the pursuer falls to demand ] This, I think, must be mainly one of two things — either restoration to the enjoyment of the emoluments he had before, so far as directly connected with the status and position of which he has been deprived ; or compensation in the shape of damages for the loss of these emoluments. These two things, however, are not so different as may at first sight appear ; for, supposing the claim made to be exclusively for damages, the damages must, to a great extent at least, depend on the value of the emoluments. I do not mean at present to give any opinion as to whether there may or may not be a claim to solatium for injury to character, etc. All I say is that the main element of damages must obviously be the loss of the emoluments of which the pursuer is said to have been illegally deprived. The form of a claim of damages seems, indeed, the least objectionable form in which the pursuer's claim can well be put ; for, supposing him to make out that he ought not to have been ousted from the enjoyment of these emoluments, it might not just foUow that he was entitled to the same permanent income without doing the duties and being subject to the restrictions imposed upon him as a minis- ter of the Free Church, as if he had remained subject to the rules of that association, and had thereby been legally incapacitated from following some other equally or more profitable avocation. At all events there would still be an intermediate period, during which he had been out of possession, for which no other redress could well he given except compen- sation in the shape of damages. If, therefore, the pursuer be entitled to ask to be restored to the actual enjoyment of his former emoluments, I think it follows a fortiori that he would be entitled to ask compensation or damages in lieu of these emoluments, so far as they may not be restored to him. In neither view does it follow that he would be restored to the ecclesiastical status of a Free Church clergyman, the reasons against which I have stated on a former occasion and need not repeat here. 2. As to the form of action by which redress is to be obtained, it seems to me that, whatever view be taken of the case, the first step to be adopted is to have the sentences or deliverances complained of judicially found not to be vaUd and binding quoad their civil or patrimonial con- sequences ; and that this may be properly accomplished by the reductive conclusions of the present actions, whether these be applied as rescissory 198 LEADING ECCLESIASTICAL CASES or declaratory, or both, according to the view which may he taken of the force of these sentences or deliverances till their illegality has been judi- cially determined. If restoration to the enjoyment of his emoluments be held the appropriate redress to which the pursuer is entitled, that redress may quite competently, I think, be given under the reductive, or as they may equally well be called, the declaratory conclusions of the present actions — assuming always (of which immediately) that these actions are directed against the proper parties. If there be an intermediate period to which the remedy of restoration is inapplicable, it will then be for consideration whether damages can and ought to be given for that period ; and if, again, the pursuer's whole claims, past and future, be held to resolve into a claim of damages, it will then, in like manner, be for con- sideration whether these can be vindicated in the present actions, or whether some other proceedings require to be instituted to follow out the reductive or declaratory decree, to which, I think, the pursuer will, in any view, be entitled if he can shew that the sentences or deliverances com- plained of have been illegally pronounced, and that he has called the proper parties to hear and see that illegality declared. The pursuer's summons in the first action concludes that the pretended judgment com- plained " of, and whole grounds and warrants thereof, with all that has followed or may follow on the same, ought and should be reduced, retreated, rescinded, cassed, annulled, decerned and declared, by decree of our said Lords, to have been from the beginning, to be now and in all time coming, null and void, and of no avsdl, force, strength, or effect in judgment or without the same in time coming, and the pursuer reponed and restored thereagainst in integrum." The conclusions of the second action are precisely the same mutatis mutandis, as applicable to the resolution or sentence of deposition. If a judgment were to be pro- nounced in terms of these conclusions I should think the pursuer would have little difficulty in enforcing its practical consequences if resisted. I do not think it essential to the competency of such conclusions that they should be followed up, in the same summons, either with petitory or farther declaratory conclusions applicable, in detail, to the particular emoluments to be vindicated. These may be made the subject of another action if either a dispute arises as to what the emoluments are or resistance be offered to the payment or enjoyment of them — just as might have hap- pened if the pursuer had never been suspended or deposed. Such disputes and resistance are no more to be presumed and provided for by anticipa- tion, in the case of restoration, than if the pursuer had never been removed from the position to which he seeks to be restored. It is enough, in the meantime, that the pursuer has condescended on a sufficient interest to try the question whether he ought to be restored to his former position. DECIDED IN THE COURT OF SESSION. 199 so far as regards his civil rights ; and I think it impossible to read the pursuer's condescendence and to say that there is any want of statement on his part of such an interest. There is no such difficulty on that point here as there was in the case of Ferguson v. Malcolm, 14th February 1850, 12 D. 732, which is aforUori an authority for the competency of these reductive conclusions, although there had been no petitory conclu^ sions at all. The. conclusions for reduction and the conclusions for damages form, in reality, a combination of two actions in one. It is not incompetent to combine them. But neither is it incompetent to sue them separately. A decree of reduction may often be necessary to lay the foundation of a claim of damages, and a statement of an intention to follow up the decree by an action of damages may be a sufficient statement of an interest to sue the reduction, even if no other interest be alleged. But it is not a sufficient objection to the competency of a reduction that the damages are not claimed in the same action, or that, being claimed, the conclusions for these damages are ill laid, and are either abandoned or fall to be dismissed. If an interest to sue the reduction be disclosed that is enough. In the actions now before us it is set forth (pursuer's condescendence, art. 22) that by the proceedings complained of (that is to say — for so I read the article — if these proceedings are allowed-to stand, and no redress afforded) the pursuer has been "most unjustly and wrongously deprived of the income derivable from the sources specified " in the second article of his condescendence, " and left in his old age, and after a ministry of above thirty years' duration, with no means of liveli- hood, with his character blasted and peace of mind destroyed." If these statements be true there is undoubtedly disclosed a sufficient interest to sue a reductive or declaratory action to the effect of having it found that these proceedings are illegal and inoperative, although no claim of damages, properly so called, had been mentioned at all. The article just quoted is descriptive, as I understand it, of the consequences which would follow from the sentences or deliverances complained of if allowed to stand and operate in their integrity, but is not intended as an admission that they are so to stand and operate, which would be altogether inconsistent with the leading conclusions of both actions. On the contrary, I think it is difficult to suppose that the pursuer meant the conclusions for damages to be applicable to more than intermediate damages till he should be restored to his former position, although there may be nothing in the phraseology to limit him to that construction. For instance, the sentence of suspension complained of in the first action is of indefinite duration, and yet the damages concluded for are only £500. The pursuer could scarcely intend that sum to cover a claim to emoluments for an indefinite term of years, amounting, as he says (in art. 2 of his condescendence) to 200 LEADING ECCLESIASTICAL CASES £214: per annum, exclusive of the manse, ■whicli he still keeps possession of as a sort of practical protest of the rights which he claims ; and although in the second action he claims £3000 from three of the individual de- fenders, it can hardly he supposed that he meant even this claim to super- sede all the patrimonial rights which restoration against the sentence of deposition would otherwise have imported. Be this as it may, however, I can take no view of the conjoined actions now hefore us according to which the reductive conclusions, if directed agajnst the proper parties, can he at present thrown out of Court, whatever may be the fate of the con- clusions for damages. If the pursuer is simply to be restored to the enjoyment of his emoluments, the reductive conclusions are all that are necessary in the meantime for that purpose. If damages are to be insisted on, either in the present actions, or in any other, the reductive conclusions are still competent to pave the way for that claim, and this equally whether their effect is to be regarded as merely declaratory of the illegality of the sentences or deliverances complained of, or as both declaratory and rescissory. We are familiar, as Lord Curriehill observed at a former advising, with the application of reductive conclusions, such as we have here, to either or both of these purposes (I mean declaratory or rescissory), according to the force which the law gives to the writings complained of till they are so challenged. The practical question, how- ever, to be tried under the present reductive conclusions is, in either view, the same — were the sentences or deliverances complained of pronounced in conformity with, or in violation of, the conditions of the contract 1 The parties are at issue upon that question ; and I see nothing in the mere form of the actions to prevent it from being competently decided. At the last advising, according to my notes of the argument, Mr. Fraser, in reply to the Solicitor-General, stated that the issues proposed were intended to try both the reduction and the damages ; but he insisted particularly upon the conclusions for reduction as of themselves substan- tially sufficient for the pursuer's purpose, which led the Lord Advocate to observe that he considered the conclusions for damages to be all but abandoned, leaving only the reductive conclusions, to the competency of which he said the defenders still maintained their objections, although he would not argue these objections over again in the face of the views already expressed against them. If, however, it be supposed that the pursuer intended to abandon any of the conclusions of his action, this is easily tested by the usual course of allowing him to put in a minute to that effect, and we shall then have to consider the action in its altered form. In the meantime, I cannot hold anything to be abandoned. Nor did I understand the pursuer to say that he perils his case upon the granting or refusal of the particular issues he has lodged, or that he re- DECIDED IN THE COURT OF SESSION. 201 fuses to he a party to any mode of investigation except before a jury. He has stated what he would prefer ; but if the Court should think that there are matters to be investigated, in the first instance, which are not appropriate for trial by jury, or that any other course is preferable to what either party has contended for, I can find nothing in the state of the pleadings, or in the argument, whieh ought to lead us to do otherwise than to order that course to be taken. 3. There remains, however, the question, which I own has at times perplexed me in the course of the case. Against whom ought the actions to be directed ? Have we the proper parties in the field, and all the proper parties? I am not disposed to decide this question at present. In the first place, because the defenders have explicitly stated, in the course of the last argument, that they do not maintain either that the proper parties or that all the proper parties have not been called. And, in the second place, because we have not yet before us' all the materials which are necessary to enable us to form a satisfactory opinion upon that question. As regards the first of these reasons, no doubt the defenders have placed upon record pleas which, if admissible at all, would seem to imply that the actions have not been directed against the proper parties ; and if they had maintained that view, I can see nothing inconsistent in it with also maintaining their other pleas. They might have continued to deny the jurisdiction and competency of this Court, and maintained, as they do, that the j)ursuer's averments warrant action against nobody — neither against the association of the Free Church, nor its General Assembly, nor the office-bearers, nor individual members of that Assembly — and yet have maintained, alternatively, that assuming all these things to be otherwise, the action could not be held to be directed against the proper parties, or all the proper parties. But this is not the course of pleading which the defenders have adopted. They disclaim, by their counsel, all intention of pleading, either directly or indirectly, that the proper parties, or all the proper parties, have not been called. The Lord Advocate, in particular, in the course of the last discussion, indig- nantly repudiated the idea that the defenders' pleas could bear any such construction, and I presume the defenders were and are prepared to abide by that disclamation, otherwise his Lordship would not have made it. Assuming it to be adhered to, I confess I am not anxious to thrust upon parties the bejiefit of pleas which they disclaim. And although it may be pars judicis to take up such an objection where the ends of justice seem to require it, it does not follow that the same course is to be taken where the parties, who alone have an interest to plead the objec- tion, deliberately waive and expressly repudiate it. In no view could we go farther, in such circumstances, than to require the pursuer still to 202 LEADING ECCLESIASTICAL CASES call any other parties interested. To dismiss the actions simpliciter, in the circumstances just stated, would be a course wholly unexampled. But my second reason for not going farther into this question of parties at present is in itseK conclusive. We have not yet before us all the materials for judging of it. The question we have to deal with is not one between the association called the Free Church or its General Assem- bly and a third party, but between the association and one of its own members — a question inter familiam, so to speat, which it is quite com- petent for parties to regulate, and which may probably turn out to be regulated by the contract and relative writings not yet fully before us. Suppose, for instance, the fact turns out to be, as Mr. Eraser for the pursuer at last discussion averred it to be, and as I rather think the defenders do not mean to deny it to be, that the Free Church has adopted generally the whole rules, constitution, and practice of the Church of Scotland, so far as these can be adopted by a voluntary body, including the rules as to suing and being sued, the question would then be, whether an action of reduction of a sentence of suspension or deposi- tion pronounced by the General Assembly of the Church of Scotland would be well brought if brought against the moderator and clerks, or other principal oiSce-bearers of that Assembly, as representing the Assembly ? If the answer to this question be in the affirmative, the same affirmative answer must be given as to an action of reduction by a minister of the Free Church ; for, ex hypothesi it is pars contractus that it should be so ; and in questions inter soeios it is quite competent to regulate this matter by the contract. The General Assembly of the Free Church represents the association of the Free Church, just as the General Assembly of the Church of Scotland represents the Church of Scotland. Now, the recognised mode of going against the Church of Scotland is by going against the General Assembly which represents that Church, or against the Synod, Presbytery, or Kirk-Session, which does the act complained of; and the ordinary mode of calling the General Assembly is by calling it into the field through its moderator and clerks, or other principal office-bearers, as representing that Assembly. Of this we have a prominent instance in the well-known case of Cruickshank v. Gordon, 10th March 1843 (5 D. 909). The General Assembly had de- posed several ministers, members of the Presbytery of Strathbogie. These ministers presented a suspension and interdict to prevent the sentence from being intimated from the pulpits, or otherwise acted on. This suspension was directed against Dr. Gordon, the moderator. Dr. Lee, the clerk, and Dr. Simpson, the second clerk, " as representing the said General Assembly, and also as individuals," as well as against Mr. Eobert Bell, the procurator, and Mr. Young, the ageiit for the Church. DECIDED m THE COURT OF SESSION. 203 The deposed ministers likewise raised an action of reduction and declarator, directed against the same parties, to have the sentence set aside and de- clared illegal. The suspension and reduction were conjoined, and cases ordered on the preliminary defences ; which were to the effect : — 1st, That the proceedings were not directed against the proper parties ; 2d, That the proceedings were incompetent, particularly the action of reduction with no petitory conclusions; 3d, That the Court had no jurisdiction. Lord Cuninghame (Ordinary) assoilzied Mr. Young of consent, and quoad ultra repelled the preliminary defences, observing in his note, with reference to the second plea, which related to the form of the action, that it was believed to be peculiar to our practice to have the validity of any deed or writing, in which a party is interested, tried without any pecuniary conclusion. His Lordship's judgment was ad- hered to by a large majority of the whole Court. This seems to me conclusive, that if the contract or constitution of the Free Church be what it is said to be, the present actions, in so far as they are actions of reduction, are directed against the proper parties. The judgment is also important as touching the other question, namely, the competency of the actions vpithout or apart from petitory conclusions. If the contract should be found not to regulate the question of parties, it will still be for consideration whether an action of reduction of a sentence or deliverance, such as we have here, be not directed against the proper parties if directed against the General Assembly of the Free Church, as the body ■who pronounced it, and three or more of its members, as in the case of other societies who have been held to be well called into Court under their descriptive names, coupled with the names of three or more of the members for themselves and as representing the rest. Lord Jeffrey's judgment in the case of the General Baptist Churches v. Taylor, 17th June 1841 (3 D. 1030), would in this view be important. But it is needless to go into this question upon general law and practice till we see what the contract itself provides on the subject. The model deeds as to churches, manses, and other buUdings, produced at a late stage of the proceedings, sufiBciently shew how unsafe it is to proceed without all the materials for decision being before us. These deeds import that the manses are to be held by such trustees as may from time to time be ap- pointed by the association acting through the medium of its Kirk-Sessions, Presbyteries, Provincial Synods, and General Assemblies, " for the use of the minister for the time being of the said congregation, during his nfe, and so long, but so long only, as he shall remain minister thereof, and shall not be debarred from the use, occupation, and enjoyment of the same by and in virtue of a sentence judicially pronounced by the said body or united body of Christians acting through the medium of its 204 LEADING ECCLESIASTICAT. CASES Presbyteries, Provincial Synods, and General Assemblies, or commission of such General Assemblies, according to the form or forms in use with the said body or united body for the time;" "but always with the powers, and under the conditions, provisions, and declarations contained and specially enumerated from tertio to duodecimo, both inclusive, in the disposition before refeiTed to," namely, the model disposition appli- cable to churches and other buildings. The effect of this last clause is to introduce into the manse deeds all the material conditions of the church deeds, and, inter alia, the conditions in the 4:th, 5th, 6th, and 11th articles, which have a most important bearing on the present conjoined actions, so far as the pursuer's right to the occupation of the dwelling-house or manse is concerned. The 4th article provides that the trustees shall be subject in all matters and things connected with the buUdings " to the regulation and direction of the General Assembly for the time being of the said body or united body of Christians, and shall be liable and bound to conform to, implement, and obey all and every act or acts of the General Assembly for the time being of the said body or united body of Christians in reference thereto ; and the moderator and clerk of the said General Assembly for the time being, or of the then immediately preceding General Assembly of the said body," " shall at all times have full power and sufficient status and right and interest to pursue or defend any action or actions, in whatever court or courts of law or justice, for the enforcement, maintenance, or protection of the rights, interests, or privileges of the said body," etc., "declaring that a certified copy, under the hands of the moderator and clerk of the said General Assembly for the time being, or of the then immediately preceding General Assembly," should always be legal and admissible evidence of such act or acts of Assembly. The 5th article provides that the " trustee or trustees for the time shall always have full power and liberty to raise, prosecute, and follow forth whatever action, suit, or proceeding they may think proper, in whatever court or courts of law or justice," as to the occupancy of or connected with the buildings, " and that no party or parties whatsoever shall have any right or title whatsoever to defend such action, suit, or proceeding, either in virtue of these presents or otherwise, unless with the express consent and concurrence as aforesaid of the General Assembly of the said body,'' or its commission, " of which con- sent and concurrence the only legal or admissible evidence shall be a written certificate, underthe hand of the moderator and clerk of the General Assembly of the said body," which certificate shall be produced with the defence, otherwise the defence shall not be maintainable although the certificate may exist. The 11th article provides, " that no person shall be deemed or taken to be an ordained minister having charge of a congregation of the DECIDED IN THE COURT OF SESSION. 205 said body or united iDody of Christians in the sense of these presents unless his name shall appear in an annual roll or list of ordained ministers having charges of congregations helonging to the said body or united body of Chris- tians, to be annually attested by the moderator and clerk for the time of the General Assembly of the said body or united body of Christians, and that no person shall be deemed or taken to be an ordained minister having charge as aforesaid in the sense of these presents any longer than his name shall continue to appear in the said annual rolls or lists, attested as aforesaid." Now suppose the pursuer's object had simply been to vindicate his right to the occupancy of the manse, which I understand he still retains, I do not see how he could have proceeded except by reduction of the sentences complained of, looking to the stringent provisions in the deeds just quoted as to the effect to be given to these sentences. Nor do I see how it could have been main- tained that the actionswere notdirected against the proper parties if directed against the moderator and clerk as representing the Assembly, in conform- ity with the express stipulation in the deeds. But the right to occupy the manse, as I underetand the matter, is just one of the civil rights to which the pursuer expects to be restored by a judgment reponing and restoring him m integrum against the sentences complained of. Now, just let it be supposed that the deeds (which we have not yet seen) relative to the Sustentation and Supplementary Funds, out of which the income of Free Church ministers is said to be payable, contain provisions similar to those in the church and manse deeds — that they place these funds under " the regulation and direction of the General Assembly for the time being " — declare the moderator and clerk of the Assembly to be the parties who " shall at aU times have full power and suflScient status and right and interest to pursue or defend any action or actions in whatever court or courts of law or justice " relative to these funds ; that no action against the trustees of the funds shall be pursued, and no action at their instance shall be capable of being defended, " unless with the express consent and concurrence of the General Assembly," or its commission, of which the only legal evidence is to be a certificate under the hand of the moderator and clerk of the Assembly ; that the minister for the time being of the particular congregation shall be entitled to a certain interest in these funds for life, or so long, but so long only, as he shall remain minister, and not be debarred by a sentence judicially pronounced by the Assembly, etc. ; but that, on such sentence being pronounced, his authority and appoint- ment as minister shall, ipso facto, cease and determine; and that no person shall be deemed or taken to be such minister unless his name shall appear in the last annual roll attested by the moderator and clerk of the Assembly ; — Is it possible to doubt the important bearing such deeds will have on all the points now under consideration ? — what is the 206 LEADING ECCLESIASTICAL CASES pursuer's appropriate remedy or redress 1 by what form of action is that redress to be sought 1 and against whom ought the action to be directed ; as well as upon what may be called the merits of the conjoined actions, which we have not yet reached,- and apparently now are never to reach 1 If the trustees of the Sustentation and Supplementary Funds are the mere hands and instruments of the General Assembly and its commission, and subject in all respects to their orders, — ^if the General Assembly be entitled to hold the purse-strings, and to tie or untie them at their pleasure, — it will be difficult, I think, to say that the General Assembly cannot maintain, or does not hold, the position of debtor and creditor, through its moderator and clerk, in actions either against or at the instance of members of the association. Still more difficult it must be to say that the General Assembly is not the proper party to be brought, and is not well brought, into the field by an action to reduce or declare void its sentences of suspension and deposition, or that these sentences, which, while they subsist, are to have such stringent effects on the patrimonial rights of the party, do not require to be reduced or declared void before that party can again effectually claim these rights. In short, it appears to me impossible to deal safely or satisfactorily either with the pre-judicial pleas your Lordships are now dealing with, or with the merits of this case, without having before us a concluded proof upon the terms and import of the contract and relative writings, so far as regards the points upon which the averments of the parties differ, which points I particularly mentioned in the opinion I delivered at the last advising, and the inquiry as to which, for the reeisons I then stated, ought, I think, to be by a diligence to recover writings, and a proof on commission before answer, and not by a jury trial. Until that proof is concluded I cannot satisfactorily form an opinion even on the question of personal liability of the individual defenders involved in the second action, or upon the conclusion for damages in the first action. The pur- suer's allegation in the first action is that the General Assembly took up a matter not before them ; and in the second action that they deposed him for an alleged offence which, by the contract or constitution, is not an offence at all. If that turns out to be so I reserve my opinion as to whether malice must be libelled to infer individual liability, and whether the pursuer may go against any one or more of the wrong-doers, upon the principle which is expressed in England by saying that "torts are joint and several," and which we recognise although we do not use the same words. I do not think a safe analogy can be drawn between such a case as this and the case of judges, especially in the superior courts. But if there were an analogy at all, it would be to a case in which judges deal with matters not before them or not within their competency and DECIDED IN THE COURT OF SESSION. 207 jurisdiction, as to which I may refer to the opinions of Lord Gillies and the Lord President in the case of Ferguson v. Kinnoul and Young, and to the ohservations of Lord Brougham and the Lord-Chancellor in the House of Lords (11th July 1842, 1 Bell's App. 662). Here, moreover, there is an allegation of malice which I did not understand to be with- drawn, although the pursuer was desirous of obtaining his issues without it. Nor do I understand it to be judicially conceded that, if the first action were to fail the second could not succeed. The sentence of sus- pension is temporary ; the sentence of deposition permanent. The objections to the two sentences are quite different, and I see no inconsist- ency in the one succeeding although the other may fail. All that, however, is not, I think, hvjus loci. The actions fall to be dealt with in the mean- time as actions of reduction, and, before so dealing with them or going into the other conclusions, I desiderate the inquiry, which I had hitherto thought your Lordships had also desiderated, as to the contract of parties, or, in other words, the constitution and rules of the association. The judgment your Lordships propose to pronounce leaves the pursuer to begin de novo, after all the litigation which has already taken place, unless inability to meet expenses shall prevent him from doing so. That result may be unavoidable according to the views taken by your Lordships, but can hardly be very satisfactory to either party. I regret that result, and, according to the views I have stated, I cannot concur in it. The Court pronounced the following interlocutor : — " The Lords, on the report of Lord Jerviswoode, having resumed considera- tion of the conjoined actions, along with the issues proposed by the pursuer for trying the cause, and having heard counsel on the said proposed issues, and as to the parties called as defenders, as well as on the terms and structure of the summons and record, and on the whole cause, they disallow the proposed issues, dismiss the actions, and decern." M. Lawson, S.S.C. — J. Ceawford Jun., W.S. — Murray & Beith, W.S. — Agen.ts. January 25, 1850. EoBEKT Ceaigie and Others, Pursuers. — D. F. M'NeUl — More — G. G. Bell. Reverend Dr. Andrew Marshall and Others, Defenders. Ld.-Adv. Rutherfurd — Moncrmff — Inglis. Second Division.^ — Lord Wood. Church — Trust — Contract. — The title to a dissenting meeting-house was vested in trustees, " for behoof of the members of the Associate Congregation in Kirkintilloch, commonly called Seceders, and presently in connection with the United Secession Church." The minister of the congregation declared 208 LEADING ECCLESIASTICAL CASES his separation from the Secession Church, and a majority of the congregation adhered to him. Shortly thereafter a union took place between the Seces- sion and the Relief Churches, the two bodies taking the name of the United Presbyterian Church. In an action by a minority of the congregation, who adhered to the United Presbyterian Church, against the minister and the majority, — Held, that the defenders having separated from the Secession Church, was not a violation of the conditions on which the property of the meeting-house was held in trust, so as to lead to a forfeiture of their rights to it, they still continuing to hold the doctrines and opinions originally main- tained by that body, and that they were entitled to refuse to concur in the union with the Relief Church, and were not bound to submit themselves to the change in the Church government consequent upon it. A congregation, belonging to that sect of Seceders known by the name of Burghers, was formed at Kirkintilloch about the year 1765. This sect had its origin some years after the Secession from the Church of Scotland in 1733, in consequence of discussions which had arisen in the body of Seceders in regard to the burgess oath, and which ulti- mately resulted in a separation taking place, and a division of the Seceders into two sections, commonly called Burghers and Anti- Burghers. This congregation acquired right in 1793 to a piece of ground, upon which a meeting-house and other buildings were erected, and which continued thereafter to be occupied by the congregation. The titles to this ground were taken in favour of trustees, for behoof of the members of the Associated Congregation in Kirkintilloch, com- monly called Seceders. The causes of difference between the Burghers and Anti-Burghers having ceased to exist, the two bodies were again united in 1820, under the name of the United Associate Synod ; and the congregation at Kirkintilloch became at that time one of the congregations of that body. In the year 1832, in order to keep up this trust, the surviving trustee conveyed the property vested in him to certain other parties as trustees, " for behoof of the members of the aforesaid Associated Congregation in Kirkintilloch, commonly called Seceders, and presently in connection with the United Secession Church," upon which the trustees were infeft. A piece of ground had also been acquired by the congregation as a burying-place, which was also held by the trustees under a title in the same terms, Dr. Andrew Marshall became minister of the congregation in the year 1802. For some years prior to 1845, various doctrinal discus- sions had taken place in the United Secession body in regard to the nature and effect of the Atonement ; in the course of which (it was alleged by Dr. Marshall in the action to be mentioned) many views tending to the doctrine of universal pardon, and at variance with the recognised standards of the Church, and with repeated declarations of both branches of the Secession, were avowed by individual members of the body, and allowed to pass without the censure, and even with the implied sanction, of the Synod. For several years measures had been in progress for effecting a union between the United Associate DECIDED IN THE COURT OF SESSION. 209 Synod and the Synod of the Relief Church, and the congregation of Kirkintilloch had previously sent an overture to the Synod in favour of this union. In October 1846 an extraordinary meeting of the United Associate Synod was held in Glasgow, for the purpose of dis- cussing the proposed basis of union ; and on that occasion, at a committee of the whole house, Dr. Marshall, who attended as a member of the Court, moved that, as a preliminary step to union on the part of the Synod either with the Relief or with any other body of professing Christians, it was necessary that the Synod should review and rescind some of its recent decisions in regard to the doctrinal points above mentioned. This motion having been put to the vote, it was supported only by Dr. Marshall and the elder from Kirkintil- loch, and was consequently rejected. Dr. Marshall then stated that this decision terminated his connection with the Synod, and read and laid upon the table a paper of protest, in the following terms : — " Whereas this Church, the United Secession, has for several years past, as her public deeds testify, departed from the doctrine taught in her standard books, and embraced errors contrary to said doctrine ; Whereas she has persisted resolutely in this course, refusing to be reclaimed, and treating the efforts of those who have sought to reclaim her with insult and scorn ; And whereas, still cherishing the same headstrong spirit, she is now taking measures to form a union with another religious body, by which she will leave altogether her former position, and probably drop her very name without having given proof of the smallest repentance, or done anything to retrieve the grievous injury she has inflicted on divine truth — the subscriber of this paper, while he protests against her unfaithfulness, while he denounces her obstinate perseverance in error, hereby declares, in his own name, and in the name of all who shall adhere to him, that he can no longer walk with her in the bonds of fellowship till she shall retrace her steps, and give credible evidence of returning to the principles from which she has departed : Further, he declares, that in the meanwhile he remains exactly as he was, having made no change of any kind, occupying the position he has hitherto occupied, maintaining the doctrine he has hitherto maintained, claiming and asserting the various rights and privileges of a civil and of a sacred nature which have belonged to him as a member and minister of the United Secession Church, and holding out the right hand of fellowship, not only to all other members of that Church who shall be pleased to join with him, but also to all Christians throughout the land, of every denomination, who maintain an honest adherence to the doctrine of the Westminster Confession." The committee, having recorded this statement and protest, recom- mended to the Synod to declare that, in consequence of it, Dr. Marshall was no longer a minister or member of the Church, and that ministers and preachers should be prohibited from preaching for him, or employ- ing him in their public administrations, and remit to the Presbytery of Glasgow to take what steps might be necessary in consequence of this decision, according to the rules of the Church. The moderator having thereafter resumed the chair, the recommendations of the committee of 210 LEADING ECCLESIASTICAL CASES the whole house were reported and adopted. At a subsequent sederunt of the United Associate Synod, the moderator was appointed to go to Kirkintilloch and declare the church vacant ; but having been denied access to the church by certain of the managers of the congregation, he made the appointed intimation at the church door. The Union between the United Associate Synod and the Eelief Church was thereafter completed, the two bodies assuming the name of " The United Presbyterian Church." /Immediately before the union took place, the United Associate Synod recorded a minute, from which the following is an excerpt — a minute in the same terms having been also entered into by the Eelief Synod :— " The Synod having for a considerable number of years had the question of union with the Relief Synod under consideration, and having long and anxiously inquired into the extent of their agreement with each other in doctrine, dis- cipline, worship, and government, have great satisfaction in declaring, as the result of their deliberations and inquiries, that any diflferences in opinion or practice which were formerly supposed to exist, and to pre- sent obstacles in the way of a scriptural and cordial union of the two bodies, either never had an existence, or have, in the good providence of God, been removed out of the way ; and that the Synods, and the churches whom they severally represent, are agreed in doctrine, dis- cipline, worship, and government; and, therefore, that the Synods, without compromising or changing the principles they hold as parts and portions of the visible Church of Christ, may unite with each other in carrying out the great ends of ecclesiastical association, etc. And this Synod declare that the Synod of the United Church shall be con- sidered identical with this United Associate Synod, and shall be entitled to and vested in all the authority, rights, and benefits to which it is now or may become entitled ; and that each of the congregations under its inspection, whether they shall adopt the name to be hereafter fixed, or shall retain, as they shall be permitted to do if they shall deem it proper, the name by which they have hitherto been designated, shall not be held, though coming, in consequence of the union, under the inspection of the Synod of the United Church, as in any respect changing their ecclesiastical connection, or affecting any of their civil rights." Two of the articles of the Basis of Union which was adopted by both Synods, were in the following terms : — " 6. That with regard to those ininisters and sessions who may think that the 2d section of the 26th chapter of the Confession of Faith authorises free commimion — that is, not loose or indiscriminate communion, but the occasional admission to fellowship in the Lord's Supper of persons respecting whose Christian character satisfactory evidence has been obtained, though belonging to other religious denominations — they shall enjoy in the United body what they enjoyed in their separate communions — the right of acting on their conscientious convictions 10. That the respective bodies of which this Church is composed, without requir- ing from each other any approval of the steps of procedure by their fathers, or interfering with their rights of private judgment in reference DECIDED IN THE COUET OF SESSION. 211 to these, unite in regarding as still valid the reasons on which they have hitherto maintained their state of secession and separation from the judicatories of the Established Church, as expressed in the authorised documents of the respective bodies ; and in maintaining the lawfulness and obligation of separation from ecclesiastical bodies in which dangerous error is tolerated, or the discipline of the Church, or the rights of her ministers or members, are disregarded." A majority of the members of the congregation of Kirkintilloch adhered to Dr. Marshall, and continued in possession of the chapel and other property of the congregation. An action was brought at the instance of Robert Craigie and two other parties, being " three of the trustees and fiduciaries for behoof of the members of the Associated Congregation in Kirkintilloch, com- monly called Seceders, in connection with, and under the inspection of, the United Associated Synod of the Secession Church," and of certain other parties composing a minority of the congregation, against Dr. Marshall, and the three other trustees, and the majority of the con- gregation that adhered to him. The summons in this case set forth — " That the defenders having separated themselves from the said United Secession Church, and being no longer in connection with or under the charge, jurisdiction, and discipline of the United. Associate Synod, or other judicatories of that body, have thereby violated the conditions on which the property belonging to the congregation was acquired and held in trust, whereby they have ceased to have any right or title to the same : That the pursuers above described as being members of the said congregation, have always adhered, and do still adhere, to the said United Secession Church, and to its principles and doctrines, and to the jurisdiction and discipline of the said United Associate Synod and other judicatories of that body, in accordance with which the said congregation have continued since the union of the two bodies above mentioned, and have been and are recognised by the said Synod and Presbytery, as the United Associate Congregation of Kirkintilloch, for whose use and behoof the said subjects were acquired and held in trust as aforesaid. That the pursuers are in consequence entitled to vindi- cate the property belonging to the congregation from the defenders, and all others pretending to have right thereto, in manner under mentioned, and to have the said meeting-house exclusively, and in all time coming, appropriated to the use of a minister, and of themselves and others who have already joined, or who may join them as a con- gregation, adhering to the said United Secession Church, and remain- ing under the jurisdiction and discipline of the said United Associate Synod and Presbytery, and other judicatories of that body : That the said United Secession Church is now called the United Presbyterian Church, and the said United Associate Synod is now called the Synod of the United Presbyterian Church, composed of the United Associate Synod of the Secession Church and of the Synod of the Eelief Church." The conclusions of the action were, mter alia, for declarator that the meeting-house and other heritable property of the congregation were " held exclusively for the congregation adhering to, and in connection 212 LEADING ECCLESIASTICAL CASES with, the said United Secession Church, now called the^ said United Presbyterian Church, and in subordination to the said United Associate Synod, now called the said Synod of the United Presbyterian Church, com- posed as aforesaid, and other church judicatories of that body, and subject to the jurisdiction and discipline thereof; . . . and that the defenders had ceased to be in connection with the United Secession Church, now called the United Presbyterian Church, and withdrawn from the jurisdiction and discipline of the United Associate Synod, now called the Synod of the United Presbyterian Church, and other judicatories of that body ; and had in consequence amitted, lost, and forfeited all right and title to the meeting-house, and whole property of the con- gregation ; . . . . and that the pursuers, members of the congregation adhering to the United Secession Church, now called the United Presbyterian Church, had for themselves, and such as might join them, the sole right and title to the meeting-house, and other property, and to the exclusive possession and management of it." Defences were given in for Dr. Marshall, the majority of the con- gregation that adhered to him, and for three of the trustees. The defenders stated the following pleas : — 1. The pursuers, whether as trustees for the congregation, or as members of the congregation, had not libelled, and did not possess, any sufficient title to pursue. 2. Even if the pursuers had ever such a title, they had lost it, by having submitted themselves to the jurisdic- tion and discipline of the United Presbyterian Synod, and its subordi- nate church judicatories. 3. The statements in the summons were not relevant to support the conclusions deduced from them. 4. The de- fenders being a majority of the congregation to whom the property belonged, were entitled to the control and management of it, so long as they continued to retain the character and maintain the doctrines on which the congregation was originally formed, and apply the property to the purposes for which it was designed ; and as the defenders had done so in all respects, there was no ground in law for interfering with their possession. 6. It was not an implied condition in any of the grants of the property in question, that the congregation should remain subject to the jurisdiction and discipline of the United Secession Church ; and there was no ground in law on which the declaratory conclusion to that effect could be maintained. 6. Even if such condi- tion had been implied, fulfilment of it had been rendered impossible, and the defenders were liberated from the effect of it by the union of the Secession Church with the Relief body; and the conclusion to have it found and declared that the pursuers still adhered to the juris- diction and discipline of the Church was altogether inept. 7. The conclusion to have it found and declared that the property in question was held for behoof of a congregation in connection with the United Presbyterian Church, had no foundation in the titles libelled on in the constitution of the congregation, or in the true principles and discipline of the United Secession Church. 8. It lay with the pursuers to shew that the defenders had departed from the doctrine and standards of the United Secession Church. But farther, and separately, the de- DECIDED IN THE COUET OF SESSION. 213 fenders pleaded that the United Secession Synod having abandoned their doctrines and standards, and having directly sanctioned essential doctrinal error, the course adopted by the defenders was in every view justifiable and incumbent upon them. The Lord Ordinary reported the case.' The pursuers pleaded : — The defenders were not entitled to main- tain any objection founded on the union between the Secession and Relief Churches, on the ground of its being an unconstitutional act, or of its involving a departure from the tenets of the Secession Church, inasmuch as they had left that Church before the union took place, and ought at that time to have surrendered the property in question. Dr. Marshall's act was a voluntary, deliberate, and complete separation from the Secession Church. By this proceeding he had put himself out of connection with the United Associate Synod, and had ceased to be a minister of that body. Those who adhered to him also put themselves out of connection with the Church. They had charged the rest of the Church, as the ground of separation, with holding erroneous doctrines. A charge of heresy of this description, made by one congregation, or part of a congregation, against the whole body of the Church, was not to be assumed unless supported by some prima facie evidence of its validity. And it was necessary for the parties making the charge, in order to entitle them to possession of the Church, under the terms of the trust, to be able to shew that they alone constituted the true Secession Church, as being the only parties who held by its original doctrines. But the union was not in any respect at variance with the principles or constitution of the Secession Church, nor did it imply any departure from the original contract amongst the members of that Church. Both bodies, the Seceders and the Relief, had left the Established Church on substantially the same grounds, — the relaxation of discipline in the Establishment, and the oppressive use of patronage. Both bodies con- tinued to adhere to the standard of the Established Church. Whatever minor differences there might at one time have been between the bodies, they had now ceased to exist. It was not from controversial work, where immaterial points of difference were often magnified into undue importance, that the Court were to look for a true statement of the principles held by the Churches, but to the authoritative profession of these principles by the Churches themselves. Previous to their union the two Churches had declared that they agreed in doctrine, worship, and government, and that without changing their principles they were 1 « -^Qxs. — ^As it appears to the Lord Ordinary, after a careful consideration of the process, that the objection to the title of the pursuers, under the circumstances, to insist in the present action, and the points which it involves, as well as the nature of the case generally, raises questions which may affect, more or less, rights and in- terests of great importance and extent belonging to bodies such as those mentioned in the record, and the individuals connected with them, he has thought it desirable that the case should be at once reported to their Lordships of the Second Division of the Court upon Minutes of Debate ; and that, in appointing it to be so, he should abstain from entering into the matters at issue, or intimating the views which he might at present be inclined to adopt in regard to them. " 214 LEADING ECCLESIASTICAL CASES to unite together. There was nothing in the original act of Secession importing a prohibition against a union with another body of Christians holding the same principles with themselves ; and there was nothing in the doctrines or standards of the Churches to debar them froni such a union. In uniting, neither Church conceded or adopted anything at variance with its original principles. It was said, that the very fact of a union having taken place, was a sufficient bar to the title of the pur- suers. Had it been the case of a bequest to the Secession Church, would it not have gone to the united body ? Could it be said that the identity of the Secession Church had been destroyed by the admission into its body of a number of ministers holding the same tenets with itself? It was nothing more than an extension of the Church, the United Associate Synod remaining still the same. The defenders pleaded : — That the case of the defenders, the members of the congregation, and the trustees, was to be considered separately, in the present discussion, from that of Dr. Marshall, as his acts as a constituent member of the Church Court could not affect their rights and interests under the trust under which the property in question was held. The preliminary question to be disposed of was, What was the situation of the pursuers who were attempting to dis- turb the defenders in their possession of the property in question t They were not the parties in the trust-deed for whose behoof the property was to be held, but a new body, including in it the Eelief Church. The pursuers were not entitled to place the congregation under the jurisdiction of the Eelief Synod. There had been all along very great and important points of difference between the Secession and the Eelief Church, as was to be gathered from works upon these Churches — more especially as regarded the subject of communion with other bodies — the Secession excluding from communion all who did not concur with them, ^nd the Eelief admitting many who differed from them, even in some essential particulars. The ground upon which the Eelief had separated from the Establishment, was solely that of the exercise of the right of patronage, and not upon any grounds of doctrinal difference ; while the case of the Secession was different. Looking to the nature of the union, it was impossible to sustain the pursuers' title to sue. They were not the parties for whom the property was held in trust. To entitle them to claim the property they must shew that the Secession and the United Presbyterian Church were identical and the same body. It was not an extension of the Secession that took place at the union, but a fusion of both bodies into one ; the effect and result of which was, that both the original Churches lost their identity, and an entirely new body, the United Presbyterian Church, was the result. The case of this date was advised. Lord Justice-Clerk (Hope). — In giving my judgment in this case, I most fully intend, because I am most desirous, to avoid a single word which may appear to reflect on, or even to approach to an indication of opinion DECIDED IN THE COUET OF SESSION. 215 upon, any of the views, either on matters of doctrine or ecclesiastical polity, entertained by either of the parties in this cause. If I have occasion to advert to the difference, or alleged difference, of opinion between them, it will be simply to the matter as a question of fact which comes before the Court, and on which its deliverance may require to be given. If I have to state that either party has grounds to object to the conduct or opinions of the other, it is only in reference to the point of fact — which entertains opinions which may reasonably be contended to be peculiar to the body to which aU at one time belonged, or which has adopted a course to which those entertaining these opinions are entitled, as a consequence of their own views, to object. Least of all will the parties hear from me the slightest disposition to treat as immaterial or insubstantial any peculiar doctrines or differences of tenets to which, or to certain modes of express- ing which, respectable bodies of Christians have attached importance, and which they have themselves described as material. A court of law, when necessarily called upon to decide a question of property in consequence of a difference of opinion among the members of a religious dissenting body, must feel most scrupulously tender as to subjects of difference to which these parties attach importance, and still more as to the grounds in respect of which one or other must suffer either total loss in the property of the body, or serious disturbance in the free and full possession and enjoyment of such property. , On this account, it is of the very greatest importance to have some fixed legal principle, founded on just grounds, and of general application, clearly and authoritatively established, by which the Court are to be governed, however nice and perplexing may be the application of the principle in the circumstances of particular cases. That principle, I think, has been undeniably fixed — though there has been much misconception as to the import and operation of the principle — as one opinion in the first case of Galbraith v. Smith seems to shew ; and it will be important to endeavour to state perspicuously the true extent and effect of the principle which has been laid down to us. On the correct application of that principle the decision of the present cause appears to me to depend, and this makes it a case of great importance. The property intended for the use of a dissenting congregation may stand, generally speaking, in one or other of two situations — widely different, and to which totally different rules are to be applied. The property (especially if it come in whole, or partly, from the funds of other parties than the congregation) may be held by titles vesting it in trustees for the general governing body or ecclesiastical judicatory of the sect, so as to separate the patrimonial right and interest entirely from the individuals composing the congregation, in such a way as to make their 216 LEADING ECCLESIASTICAL CASES adherence or separation in truth, a matter of no importance, since the property belongs to managers or trustees for the aggregate representative of the sect. Or the property — as has generally been ^;be case when purchased and built by funds contributed by the individuals composing the congregation — may be held by the titles as a trust for the congrega- tion and its members. Such a trust may, it is true, restrain and limit the property to the portion of the congregation holding certain opinions, or as in subjection, it may be, to a certain governing body. That is an adjection perfectly consistent with a trust for the congregation and its members. Now, property standing in these two several positions is held on totally different conditions, and the principles to be applied, in the event of difference among its members, are perfectly distinct. In the former case, the use only is given ; and it is specially designed for those whom the governing body, or ecclesiastical judicatory, may acknowledge as belongiag to them. The members of the congregation will have no patrimonial interest in the property — at least if they separate from the ecclesiastical judicatory : their opinions are of no importance : to them no heritable right or jus crediti belongs : If they separate, even the whole congregation from the governing body, that in no degree can affect the property, which belongs to the trustees for the aggregate body, and so no question can arise, except this, — Does the governing body still exist in name ? They may have wholly changed their opinions ; they may have become, from Presbyterians holding the Westminster Confession of Faith, decided Unitarians : yet to them, and not to the congregation, the property belongs. The object of the property being so held is to make the property a bond, and strong bond, of union — to try to exclude difference of opinion by the immediate and necessary consequence of the forfeiture of the use of the place of worship — and so strengthen the hold, and power, and influence of the governing body, by the property being vested in them, and by the congregation having no interest in it. Whether this is a wise method of attempting to secure permanent concord in a dissenting body, or will not ultimately lead naturally to decided dissatisfaction, by introducing an element at variance with the first principle of dissent — that of voluntary association — is another matter. But the rule applicable to property so held is of course unmistakable. Differences of opinion which lead to separation leave the property where it was ; and the members of the congregation, or the whole congregation, must find of necessity another place of worship, if they leave the governing body ; for the property is held for the latter, distinct and apart from the congregation. But in regard to property held on the other footing, the leading con- DECIDED m THE COTJET OF SESSION. 217 sideration to keep in view in such questions as the present is, that the members of the congregation are the proprietors ; — under whatever condi- tions — whatever may be the restraints as to the opinions those must hold who form the proper congregation — still the members of the congregation alone are the proprietors. In them the right — a direct personal right and interest in heritable property — exists, from the very nature of the trust. The governing body, or ecclesiastical judicatory, has no interest in, or power over, the property. The relation of the congregation to such governing body, or the maintenance of the same opinions with that body, or the maintenance of the opinions originally professed by that body, may be, in different cases, more or less important in ascertaining for what portion of the congregation, in the event of division among the congregation, the property is held. But such a question is one entirely between the individual members of the congregation. The party who says the other has lost the right, especially if the majority have possession, must make out and establish that such majority have lost the character of those for whom the property is held, gjid have individually, by their acts, opinions, and tenets, departed from the principle of the associated congregation — (I use that term as a generic description of such society) — and so forfeited their right of property. What is to prove such departure is a different point. It may be affected or decided by the terms of the contract of such society ; it may be affected, or even decided, by the relation subsisting or renounced with some ecclesiastical judicatory, when such has been proved to form a condition of the trust ; or it may be a question depending whoUy on adherence to the principles on which the congrega- tion associated and formed itself — the maintenance of which being in truth always the rule, even when the determination of that point is affected by the continued relation with, or renunciation of, ecclesiastical superiors. In the latter case, the point is stiU (when the property is held for the congregation) to ascertaio. by whom (in the event of difference) the original principles of the association are maintained. Adherence to a certain judicatory of the sect may, hy the terms of the title, decide that point. But in aU cases of trusts for the congregation, the element of association is the continued maintenance of the opinioii on which the congregation (the proprietors) associated ; and that is the point to be decided, however it may be ascertained. This consideration, that the members of the congregation are the proprietors, was lost sight of by this Court in the judgment in CraigdaUie— ^and hence the error in the judgment. /Now, whUe the rules as to property held in these two different situations are so widely different, it has happened unfortunately, in Scotland, that these two classes of cases have been sadly confounded ; and our Courts at one time acted on the extreme of one principle, and 218 LEADING ECCLESIASTICAL CASES then very suddenly went, from seeing their former error, to the extreme of the'other principle — and that, as it turned out, from an entire misappre- hension of the scope of certain English cases which they thought applied. It is always the interest of one party or the other, in such divisions among a congregation, for whom, qua such, property is held, to inToke the principles applicable to the case of property held for the governing body ; and even though the question arises amohg the members of the congregation, and though the judicatory could not, either in form or right, appear in the discussion, the portion of the congregation adhering to the governing body or judicatory wish to make their relation to that body the important and decisive element. And in that view there is much plausibility. It solves difficulties. Change of opinion in the governing body — the Synod and Presbytery for instaiice — is not so presumable as departure and schism by a portion of a congregation. The governing body ought the best to know the opinions of the sect, it may be plausibly contended. Adherence to the Synod and Presbytery seems to give, even to a minority, a character and stamp which the majority separating have not. The Court, more accustomed to look to the Establishment, and desirous to give to dissenting bodies the full benefi.ts of toleration, may invest this Synod with a character and status, adherence to which seems to be a condition of the associated congregation, rather than the mainten- ance of religious opinions, which it may be difficult to ascertain, or invidious to sift and compare. Thus it is that a great source of error in the decision of such cases may be introduced ; and hence the source of the error in principle, carried to the extreme in the case of Craigdallie ; for it was decided in this Court on the very ground applicable to a trust, not for the congregation but for the governing body or Synod ; but which was corrected by the House of Lords in a judgment, the bearing and effect of which, I had hoped, could not have been called in question. The congregation at EarkintiUoch, whose property is now in dispute, was formed in 1765. It is admitted by both parties that it was from the first, and in the original principles of association, a congregation of Seeeders — a name which, in Scotland, is not synonymous with a dissent- ing congregation, but denoted a well-known set of persons associated on distinct, clear, defined, and recorded principles. Then it is admitted that this congregation, formed after a split among the Seeeders, were Burgher Seeeders. We have not such an exhibition of the origin of their funds, and of their original minutes, as in the case of Craigdallie. But that is immaterial The two great elements are fixed, and are relied on, though for different objects and conclusions, equally by both parties — 1st. That the association was one of a congregation of Seeeders ; and, 2dly, That it was an association of Burgher Seeeders. DECIDED IN THE COURT OF SESSION. 219 The titles are taken in 1793 and 1795, and the seisins are in these terms — to certain parties " as trustees or fiduciaries for behoof of the members of the Associate Congregation in Kirkintilloch, commonly called Seceders." So stood the title for forty years. But aU the trustees having died, except one, it was thought expedient to convey the property to new- trustees ; and, on the recital of the disposition in the above terms, the surviving trustee, in 1832, in implement of his trust, dispones the property to himself and others, "as trustees and fiduciaries for behoof of the members of the Associated Congregation in Kirkintilloch, commonly called Seceders, and presently in connection with the United Secession Church." That this addition arose solely in consequence of the union of the Burgher and Antiburgher Seceders in 1820, and with no view to make any change in the character or condition of the trust, is clear on every ground — ^but mainly on this, that it is not even averred that this addition was the result of any minute of the congregation, or resolution on the subject. It seems to have been put in as properly descriptive of the congregation as it happened to stand at that date. The seisin, accord- ingly, is taken to them "as trustees for behoof of the members of the foresaid Associated Congregation of Kirkintilloch." There is a title in 1836 to an additional piece of ground, in the same terms as this was, both as to disposition and seisin. That the above, then, is a trust for the members of the congregation, and in no respect whatever, by implication even, for the governing body or Synod, is undeniable. It bears to be expressly for the members of the congrega- tion ; and the results must depend on questions raised between the members themselves, in regard to their own individual rights and interests, dependent on their own individual acts or tenets. No doubt it may be that the trust, though for the congregation, may more or less fix down of what character the proper congregation must be, and what tenets or principles they must hold, or by what rule these tenets are to be ascertained, or the character of the proper congregation for whom the trust is held is to be fixed. But still, whatever eflect any term descriptiv e of the congregation may have in deciding what shall constitute the requisites and qualities of the association called the congregation, it is clearly a trust for the members of the congregation. Nor has that been disputed. Further, there is no doubt, and never has been in any of the discus- sions in this country, that a trust for the members of a congregation is in the first instance a trust for the majority, until it is made out that such majority no longer can hold the property, because no longer properly 220 LEADING ECCLESIASTICAL CASES the congregation designed. But that loss of character must he proved against the majority of the congregation. Originally, the error in the older Scotch decisions was to take the majority as the only rule for deciding with whom was the property. But under even the corrected rule of law, the fact is of the greatest importance, that the party said to have lost the property are a majority of the members of the congregation for whose behoof the trust is held, and against whom, therefore, as the proper proprietors (until forfeiture shall be proved), it must be established that they can no longer claim the character which was the purpose of the trust. The defenders in this case are admitted to be the majority of the con- gregation : It is very confidently said — and that seems to be practically admitted by the real facts of the case — the great majority. But whatever is the amount of majority, it is admitted that they are the majority of the members. Then we are brought to consider the summons directed against them, in order to establish that they, the majority, have lost their right of pro- perty, and to consider the ground of action on which it is rested. Both Dr. Marshall, the minister, and the majority, are made defenders. There are two points of difference between their several cases, which might in some views be material. One is, that Dr. Marshall is not a proprietor ; and the other is, that against the majority of the members no procedure was taken in the Ecclesiastical Court declaring them no longer members of the Secession Church, and establishing and declaring even the fact from which forfeiture is deduced, much less, in a court of law, declaring the forfeiture, before the union with the EeUef Church — supposing that there was any regular proceeding against Dr. Marshall. These are points which may both require attention — especially the fact that the forfeiture was not declared, nor the effect of separation as to property even announced, before the union. But the summons puts the cases of Dr. Marshall and the majority as one ; and, generally speaking, I shall so regard them in ex- plaining the general rule of law applicable to the case. The summons requires very particular attention. A narrative is given, which in many respects is not disputed, and is not very material. It dwells on the congregation having been first a Burgher congregation in connection with the Burgher or Associate Synod, and latterly with the United Secession Synod, and it sets forth, " That the principles, doctrine, worship, government, and discipline of the said United Secession Church, are the same as those of the said Associate or Burgher Synod " — the object of that statement being to bring the pursuers more closely to the original principle of association of the members of this congregation. Then, after a further narrative, the summons notices cursorily discussions in the DECIDED m THE COURT OF SESSION. 221 Secession Church on certain doctrinal points, but ■without stating what they were — " which discussion was terminated," the summons says, " in the month of May 1845, hy final deliverance of the said Synod adjudicat- ing upon the points in question : That the said Dr. Andrew Marshall took a prominent part in the said discussion, siding and voting with the minority of the said Synod, and he dissented from the decision which was then adopted ; hut upon that occasion the said Dr. Andrew Marshall and his said congregation took no further steps in consequence of the said decision, and still remaiaed in connection with the said Synod." And that was the fact. Dr. Marshall or his congregation had not thought it necessary to take any steps merely in respect of that doctrinal discussion. Then the summons, hefore it comes to notice a single act by Dr. Marshall or the congregation, on which the pursuers found, goes on to state — " That measures have for some time been in progress for effecting a union between the said United Associate Synod, and the Synod of the body or denomiuation known by the name of the Belief Church : That in the month of October last an extraordinary meeting of the said United Associate Synod was held at Glasgow, for the purpose, principally, of dis- cussing the terms of the proposed basis of union." It is thus admitted, on the face of the summons, that the terms of a proposed basis of union were to be entered upon and considered at the extraordinary assembly of the Synod called for that purpose, before any step was taken by Dr. Marshall on which the pursuers can found. Then it sets forth Dr. Marshall's motion at one of the first of these meet- ings — as a preliminary step to union with any body ; and then it founds on Dr. Marshall's protest, and certain proceedings said to have been taken against him. These must be fully noticed afterwards. Then it is stated that the defenders have adhered to Dr. Marshall — " That the said defenders having separated themselves from the United Secession Church, and being no longer in connection with, or under the charge, jurisdiction, and discipline of the United Associate Synod, or other judicatories of that body, have thereby violated the conditions on which the property belong- ing to the congregation was acquired and held in trust, whereby they have ceased to have any right or title to the same." This is the ground of action on which the alleged forfeiture of the property is to proceed. No other act is averred against the defenders. Upon this single fact the alleged violation of the trust is founded, and the proposed forfeiture to proceed. But then follows a totally new matter, which is thus set forth — " That the said United Secession Church is now called the United Presbyterian Church, and the said United Associate Synod is now called the Synod of the United Presbyterian Church, composed of the United Associate Synod of the Secession Church and of the Synod of the Belief Church." 222 LEADING ECCLESIASTICAL CASES The conclusion is then adapted to this altered state of the Church. The defence is substantially in the 2d, 4th, 5th, 6th, and 8th pleas — although, certainly, these are not stated in very logical order. The lead- ing proposition is in the 4th plea. The pursuers proceed on the same condition of the case as that taken up by the defenders. They admit that they must establish that the defenders, who are the majority of the members of the congregation, have, by their acts and conduct, violated the conditions on which the property belonging to the congregation was held in trust, and so have ceased to have any right thereto. These are the very words of the subsumption in the summons. This proposition the pursuers must establish. They may have aid from the titles in proving this, or in shifting the onus. But this they undertake to establish, and this they are bound to make out. If the matter is left in doubt, the case cannot be decided against the majority of the congregation ; and the ground on which the proposition is to be made out is, that separation from the United Secession Church is a violation of the conditions of the trust. The first matter is to settle the rule of law applicable to such a case. When a clear conception is obtained of the rule of law, it does not appear to me that this case is attended with any doubt whatever. I am the more desirous to explain what I hold to be the settled rule of law on the above issue between the minority and majority of a congregation, for the members of which property is held in trust, because I think the matter has been very much thrown loose again, and great uncertainty created, by an elaborate opinion in Galbraith v. Smith, March 10, 1837, in which, I apprehend, the priaciple of judgment adopted by the House of Lords in CraigdaUie v. Aikman was whoUy misunderstood. In the practical result, the other Judges in that case concurred with Lord Meadowbank ; and hence it is often thought that his view of the law was adopted. It was not so, for the Court, I think, differed from him in principle, though they concurred in one judgment, in the circumstances of that case. I am aware of no point of more importance to be constantly stated, with refer- ence to the interests and the peace of large religious bodies. In the outset, it is to be observed that we have not here any case as to the exercise of discipline over a member or minister of a voluntary religious body by the ecclesiastical superiors to whom he chose to subject himself. That is a case quite apart from the present. On the occurrence of dLEferences among the congregations of Seceders, and other dissenting bodies in Scotland, duiing the last half of the last century, a variety of cases were tried, all of which I have been able from one source or other to examine and consider — although few are reported. 1. Bryson v. Wilson and Bain, commonly called Gib's case — decided DECIDED IN THE COUET OF SESSION. 223 by Lord EloMes, 1751. 2. Morrison v. Struthers, called Allan's case — from Lanark. 3. WUson v. Jobson, 1771 — a Dundee case, and embodying the principle of judgment very distinctly in the express terms of tbe interlocutor. 4. Allan v. M'Crae, 1791 — a Berean case, also stating the ground of judgment. 5. Auchincloss case, 1792 — as to possession under the action of damages, and which I shall notice separately. 6. Smith v. Kidd, 1797. 7. Dun v. Brunton, 1800 — ^which also stated the ground of judgment. 8. Bulloch, 1800 — which went on same ground. In aU these cases the Court went distinctly, and in some of them in express terms, upon the principle, that the property belonged necessarily to the majority of the congregation, and laid aside, as a point quite irrele- vant, the inquiry, whether that majority had departed from the religious principles on which the association was formed, and this though the title was in some cases in terms stronger than the present — being in two or three to a congregation designed "as subject to, and under the inspection of, the Associate Synod," or "under the inspection of the Associate Synod." So strongly was this principle fixed, that, in the case of Auchincloss, while Lord Braxfield, in the action of damages on account of deposition, found that " it was not competent to review the proceedings of associate Congre- gations commonly called Burghers, when sentences are pronounced by them in their ecclesiastical character," and on that ground assoilzied, yet, in the Removing, which was to obtain the property, he directed inquiry to be made as to which party had the majority, and at last pronounced id the Eemoving, this interlocutor : — " Having resumed consideration of the mutual condescendences and answers, and heard parties' procurators there- on — as it appears to the Lord Ordinary that the majority of the original contributors are at present with the pursuers — in respect thereof, and whole circumstances of this case, particularly that the defender Mr. Auchincloss was ordained and settled minister at Liff by the Associated Presbytery of Perth, under authority of the general Associated Synod of Burgher Seceders at Stirling, and has been deposed and excommunicated by the same authority — therefore, advocates the cause, and decerns in the removing as libelled, to take place at Martinmas next, superseding extract." I find this interlocutor copied by Sir Hay Campbell on his papers in CraigdalUe's case, and I have seen it nowhere else. The view taken by the Court in aU these cases, as appears from the concurring statements and quotations by both parties in Craigdallie, was this — partly that a trust for a permanent religious association, or for the maintenance of particular opinions, was not a trust which law could support, or at least, if not unlawful, the only party to decide on the matter was the congregation itself — that is, the majority, and that the course taken by the rnajority, although they separated from such judicatories, was one of 224 LEADING ECCLESIASTICAL CASES which the minority could not complain. This view rested on the prin- ciple, that the property was in the members of the congregation ; hut in the extent to which it was carried there was a great error. It partly involved a denial of the lawfulness of such associations, and of trusts for their behoof, and partly also involved a power in the majority, against the first principles in the law of trusts, to divert &om the purpose for which it could be shewn to be clearly held, property bought or built with common funds for that original purpose. The principle of these decisions was fatal to the security of such property, and sacrificed the interests of those maintaining the common purpose for which the property was held in trust, to the wOl of a majority. It was a principle also as irreconcile- able with the law of toleration as with the law of trusts. The feeling against it began to shew itself in one or two cases soon after the dates of those last referred to ; and as the differences then prevailing among the Seceders, leading to the New Light and the Old Light, were giving rise to more questions, one case at last — (as President Blair states in a case of Bulloch, in 1809) — the case of Davidson or CraigdaUie v. Aikman, was selected, out of many then occurring, to try the general point again more deUberately. The result was, as is often the case, that the sound prin- ciple was not attained at the first change of opinion, and a principle in the opposite extreme adopted, although by the narrowest majority — indeed with President Campbell's vote not counted, and with a court equally divided — which was as erroneous, and as adverse to the law of trusts, and as much opposed to the principle of voluntary association in a religious body, as that which the Court had so long acted upon, but at length abandoned. As the rule of numbers was abandoned, the party adhering to the Synod put forward then the simple and inviting principle — " Who is to decide which is the true congregation but the Synod of the body ? Is a court of law to investigate our doctrines ? Is a court of law to say the minority are the true Seceders — the real maintainers of the Secession principles, when the fathers of that church in Synod declare the reverse 1 Our opponents have seceded from the Synod : They say so : Their act is avowed separation : Your task will be endless if you investigate doctrines : Separation ought to be the test. Besides, our church government is really that of the Establishment. Subordination to our Courts is a fundamental element of association, as much as in the Establishment ; and here, then, you have a safe, a clear, a satisfactory, ground for decision." No doubt this was a very inviting view to put before the Court, and a very important view for the Synod to make its adherents struggle for. But, in cases in which the property was held for the members of the DECIDED IN THE COUET OF SESSION. 225 congregation, it was manifestly against the leading principle in the law of trusts, and founded on the assumption, that connection with a dissenting Synod was as decisive a criterion by which to determine property and civil rights, as adherence to the Established Church. The mistake con- sisted in taking as decisive what was only one element, and it might be an element of no importance, in the inquiry, what was the original trust, and which party maintained the principles on account of which the property was bought, seeing that the members of the congregation were proprietors, not possessors and users merely. I have extracted, and had intended to read, a number of passages from the pleadings — as there is no good and intelligent report of the case — placing in a very clear light the above respective and different principles for which the parties con- tended. But it becomes unnecessary to read them ; for on Sir Hay Campbell's session papers I have found the two principles set in strong contrast, ia his note of his own opinion, the rule to which he still adhered — the old rule of numbers is forcibly stated — and in his note, though short of the opinion of the late Lord President (whose own papers have been lost), given at the last advising, before the case went to the House of Lords, the other rule (which, it appears from Lord Eldon's speech, he had also strongly urged as counsel in this Court, and adhered to on the bench) is very clearly propounded. It will be seen that each pushed the opposite opinions too far, and that, although Sir Hay Campbell seemed at one time to state very nearly the rule adopted by the House of Lords, stUl he would not make the matter turn on the doctrines ■ of the original members, but solely on numbers. Sir Hay Campbell's first opinion is as follows : — " There seems to be little doubt that the property in question belongs to, and is held in trust for, a larger description of people than merely the persons who originally subscribed small sums for purchasing the ground, and raising the buildings upon it, as a great part of the expense was defrayed by after contributions. The establishment, in short, was made for a seceding congregation of a certain description, called the Associate Congregation of Burgher Seceders, at Perth, and of course the members of that congregation who either originally contributed, or afterwards acceded, became proprietors of the feudal subject, and they, or a majority of them in case they differ in opinion, must regulate the management, and dispose of the property when any dispute arises. "As to the Associated Synod, the Court can take no notice of any such body of men as a superior judicature exercising the rights of control over the congregation, or having anything to do with the enjoyment or disposal of their civil properties. The Court upon one occasion ordered Q 226 LEADING ECCLESIASTICAL CASES tlie very name assumed 13/ ttem to be expunged from the record ; and it is clear, from the terms of their own original establishment, that they pretended to nothing but a direction in spiritual matters. The words, key of government and discipline, etc., are merely figurative, and have no relation to temporal affairs. Their sentence of deposition of one minister, or appointment of another, cannot be regarded by this Court. Neither can we enter into the disputes and schisms among them about spiritual matters, or speculative doctrines of any kind. " The sole question is, who are the majority of this body of individuals assuming the name of a congregation, and who are the trustees named by them in whose favour those who are at present trustees were called upon to denude of the property, in order that it may be at the disposal of the persons having right in law to that property, and who may of course appoint any person they please to occupy the premises, and to perform worship in their own way to the people of the congregation 1 This is a question of a very simple nature, and easily extricated, and it is upon this principle that aU. the former decisions have rested. Voluntary associations have not the privileges of law incorporations. — Diet. vol. iii. p. 110; vol. iv. p. 283. " It was for some time thought that Seceding congregations, not being societies known in law, could not maintain actions f or t^ajuMpeeo ^f asserting their just rights. — (Case of Gib, 1 752.) But-tHisaltered in case from Lanark in ITSTT Jobson^^th Dy^mber 1771 ; Allan v. M'Kae, 8th March 1793 ; Smith v. Kidd, 26th May 1797; Bulloch v. Douglas, 27th May 1800; Dun v. Brunton, 13th May 1801. A mandamus in England means no more than what is meant here by an order of the Sheriff, or an interdict in the Bill-Chamber, regulating the interim pos- session upon prima facie evidence, in order to preserve peace and good order among parties. But when parties come regularly before a court in order to have their differences on points of civU right determined, they must found their pleas on common established grounds of law, and the Judge cannot listen to the peculiar doctrines, either of ecclesiastical discip- line, or of moral or political system, adopted by voluntary associations of men uniting together for any purpose whatever." The first judgment was then pronounced; but it was altered, and another given, both of which I shall afterwards quote. Then there was a reclaiming petition against the last. Sir Hay Campbell's opinion at the last advising, when the Bench, as appears from the papers, was considerably changed, is as follows : — " 1. Misappropriation of collection at church- doors — applicable to charity alone. Besides, how are the donors to be traced, and what each gave 1 If at all to be considered, it must be as belonging to congregations at DECIDED IN THE COURT OF SESSION. 227 large, and partly to make up deficiencies of stipend. 2. Subjection to another body of men called an Associate Presbytery or Synod. This control they cannot exercise or enforce without being a legal incorporated body, -which they are not. What if whole of this congregation to a man differ in opinion from the Synod, are they to forfeit their property to a new or different body ? This is indirectly the consequence of interlocutor. It is a modus aequirendi et omittendi dominum hitherto unknown. This proviso, therefore, in the interlocutor, ought to be thrown out. " Forty congregations of Burgher Seceders of Old Light have formed themselves into a Presbytery, and petitioners are attached to them. The change of opinion and principles is Presbytery and Synod, not in congre- gation, or at least majority. "The continuing together as a congregation, and, still more, the sub- jecting themselves to the control or inspection of ecclesiastical superiors of any description, is aU a voluntary business. They may dissolve them- selves when they please. They may change their principles, and they may put themselves under other superiors. In all such circumstances, we can only count numbers, otherwise we at once convert them into a permanent established body — i.e. a legal corporation. " In case of Auchincloss, Synod and majority of congregation were at one, and Auchincloss maintained himself in possession by force. Why alter the terms of the original trust ? The same body that exercises the right of patronage exercises also the jurisdiction." In the above opinion it will be observed that Sir Hay Campbell, in two places, adverts to the opinions of the congregation remaining the same, and to the change being in the Synod ; but still he does not take this as a principle or test for judgment. On the contrary, the rule of simply counting numbers excludes this point altogether. The opinion of the late Lord President, then Lord Justice-Clerk, who had been appointed since the former judgment, is thus noted down by Sir Hay Campbell : — " An individual may reserve property and right of patronage. — Lady Glenorchy, Haldane, etc. Persons may also put the management and right of patronage in another. This congregation did not mean to become Independents. They meant to continue Presby- terians. The essence of it is subordination. Even when Episcopacy was restored, the Presbyterian form continued. If minister deposed by his own judicatories, must give effect to it, even in civilibus. Complete toleration not substantially different from Establishment. Have no access to know who are the real Bargher Seceders but the judicatories them- selves. Craigdallie, etc., have seceded from the Burgher Secession. For adhering." The principle adopted by the Court in the case of Craigdallie was, in 228 LEADING ECCLESIASTICAL CASES substance, that stated by the late Lord President, to whicli the first Lord Meadowhank also adhered, as appears from Sir Hay's note, and -which was very elaborately argued by the last Lord Meadowbank in -support of the ultimate interlocutor, and from which view I think his mind was not afterwards relieved. The interlocutors will be stated in noticing the report in the House of Lords. That the congregation in Craigdallie's case was one in connection with the Associate Synod, was admitted by all parties, and was ulti- mately found as matter of fact by the House of Lords. The minutes of the congregation, the ordination of the minister, and many other facts, fully proved that connection. That finding then made the case, I think, exactly the same as the present. Before the case of Craigdallie was decided in the House of Lords, two cases occurred in the interval in this Court after its decision — 1. In the First Division, Bulloch, January 1809, in which the majority of that Division refused to hold the general point as fully settled by the case of Craigdallie. 2. The other, M'Intyre v. M' Crie, 24th February 1809, in the Second Division, in which. Lord Eobertson dissenting, the Court acted on the principle adopted in Craigdallie as summarily settling all such questions ; and the Court refused to entertain the question as to doctrine. The determination to be given in the House of Lords thus became of greater importance. If, then, separation by the one party, or adherence by the other, in any degree decides the point, the question in Craigdallie was brought to a very short and clear result ; for Mr. Jervie, to whom Davidson, Craig- dallie, and others, adhered, gave in a solemn protest, declaring that the Synod had departed from its principles, declined the authority and juris- diction of the Associated Burgher Synod, and of all Presbyteries sub- ordinate thereto, while he claimed authority still to act as minister in the same place, as they, and not he, had departed from the faith. The Synod declared Jervie "no longer a minister of our church, and dissolved the charge," — a very different course from that followed in this case. The House of Lords, then, had this broad plain ground for judgment, if sound and correct, placed on the clearest basis, and in the very front of the case. The first interlocutor of this Court was — " The Lords find that the property of the subjects in question is held in trust for a society of persons who contributed their money for purchasing the ground, and building, repairing, and upholding the house or houses thereon, iinder the name of the Associate Congregation of Perth ; and sp far repel the defences against the declarator at the instance of Matthew Davidson and DECIDED IN THE COURT OF SESSION. 229 others ; and find that the management must be in the majority, in point of interest, of the persons above described ; and, before farther answer in the cause, remit to the Lord Ordinary to ascertain what persons are entitled to be upon the list of contributors aforesaid, and whether the majority aforesaid stands upon the one side or the other ; and thereafter to do as to his Lordship shall seem just.'' The second was, — "Alter the interlocutor of 16th November last, and find that the property of the subjects in question is held in trust for a society of persons who contributed their money either by specific sub- scription, or by contribution at the church doors, for purchasing the ground, and building, repairing, and upholding the house or houses thereon, or for paying off the debt contracted for these purposes — such persons always, by themselves, or along with others joining with them, forming a congregation of Christians continuing in communion with, and subject to the ecclesiastical discipline of a body of dissenting Protestants, calling themselves the Associate Presbytery and Synod of Burgher Seceders ; and remit to the Lord Ordinary to proceed accordingly." The argument in the appeal cases, and by Sir Samuel Eomilly, in support of the judgment, was, that it was necessarily a trust for a con- gregation subject to a certain, ascertained ecclesiastical jurisdiction, and that subordination to that authority was a fundamental element in join- ing the Burghers, governed as they were ; and hence, that if a portion of the congregation left that body, the trust could not be for them, but for those who adhered to the Synod. The view taken by the Lord Chancellor is very clearly expressed. — (See 1 Dow, pp. 11 to 16.) I own I had not thought that it was possible to throw doubt on the import of this judgment. I think it directly negatives the position laid down by this Court, that there is any other question than inquiry into the principles held by the congregation as it was formed, and the con- tinued maintenance of the same priaciples — being the origin and object of the trust ; and negatives the doctrine, that the judicatory and adher- ence to it is to decide, provided the doctrines of the congregation can be ascertained. Here, then, is the error in the view of this case, which was stated so anxiously by Lord Meadowbank in Galbraith v. Smith, 10th March 1837. This takes adherence to the Synod as conclusive, and excludes inquiry into the original opinions or doctrines, if opposed to the declaration made by the Synod as to what these doctrines are, and is precisely the error in the CraigdaUie case again brought out, and in more absolute terms. The interlocutor of the House of Lords is not given at length in Dow, but it is very material — "June 18, 1813. The Lords Spiritual and •230 LEADING ECCLESIASTICAL CASES Temporal, in Parliament assembled, find as matter of fact, sufficiently established by proof, that the ground and buildings in question were purchased and erected with intent that the same should be used and enjoyed for the purpose of religious worship by a number of persons agreeing at the time in their religious opinions and persuasions, and therefore intending to continue in communion with each other ; and that the society of such persons acceded to a body, termed in the pleadings 'The Associate Synod;' and find that it does not expressly appear as matter of fact for what purpose it was intended at the time such purchase and erections were made, or, at the time such accession took place, that the ground and buildings should be used and enjoyed, in case the whole body of persons using and enjoying the same should change their religious principles and persuasions ; or, if in consequence of the adherence of some such persons to their original religious principles and persuasions, and the non-adherence of others of them thereto, such persons should cease to agree in their original religious principles and persuasions, and should cease to continue in communion with each other, and should cease either as the whole body, or as to any part of the members composing the same, to adhere to the body, termed in the pleadings 'The Associate Synod;' and it is therefore ordered and adjudged, that, with these findings, the cause be remitted back to thp Court of Session in Scotland, to review all the interlocutors complained of in the said appeal ; and, upon such review, to do therein what shall appear to them to be meet and just." Of the principle of this judgment we have a very clear statement by Lord Eldon himself, when the case went back to the House of Lords (2 Bligh, pp. 539 to 541). I see the original opinion is printed at full, length from the shorthand notes in the papers, after the case came back from the House of Lords, and some passages bring out his views more fuUy as to the practical points to be decided. The conclusion of that case was remarkable, and has led to much misconception. The pursuers, CraigdaUie and others, for so they were called (though they were mutual declarators), failed, in the opinion of this Court, to make out any intelligible ground of difference between them and their opponents, and so this Court pronounced the following judgment: — "Find that the pursuers, James CraigdalUe and others, have failed to condescend upon any acts done, or opinions professed by the Associate Synod, or by the defenders, Jedidiah Aikman and others, from which this Court, as far as they are capable of understanding the subject, can infer, much less find, that the said defenders have deviated from the original, principles and standards of the Associate Presbytery and Synod. Further, find that the pursuers have failed in rendering DECIDED IN THE COUET OF SESSION. 231 intelligible to the Court on what ground it is that they aver that there does at this moment exist any real difference between their principles and those of the defenders ; for the Lords further iind, that the act of forbearance, as it is termed, on which the pursuers found, as proving the apostacy of the defenders from the original principles of the Secession, and the new formula, were never adopted by the defenders, but were either rejected or dismissed as inexpedient; and that the preamble to the formula which was adopted by the Associate Synod in the year 1797 is substantially and almost verbatim the same as the explication which the pursuers proposed, in their petition of the 13th April 1797, to be prefixed to the formula ; and to which, if it would have satisfied their brethren, they declared that they were wiUing to agree. Therefore, on the whole, find it to be unnecessary now to enter into any of the inquiries ordered by the House of Lords, under the supposition that the defenders had departed from the original standards and principles of the Association, and that the pursuers must be considered merely as so many individuals who have thought proper voluntarily to separate themselves from the congregation to which they belonged, without any assignable cause, and without any fault on the part of the defenders, and therefore have no right to disturb the defenders in the possession of the place of worship originally buUt for the profession of principles from which the pursuers have not shewn that the defenders have deviated ; therefore, sustain the defences, and assoilzie ; and in the counter action of declarator at the instance of the defenders, Jedidiah Aikman and others, decern and declare in. terms of the libel; but find no expenses due to either party." I am not called on to say that I do not see very broad and marked differences of opinion. The Lord Chancellor said, in substance, on the second appeal, " I foresaw this would be a very difficult matter to under- stand ; and if the Court of Session cannot understand this matter about the Covenant, stiU less can I ; and hence the defenders can lose no right of property." But then the Court, in the declarator at Aikman's instance, had found that those who left them had lost their right, and on that point the Lord Chancellor had difficulty, seeing that there was no intel- ligible difference of opinion. (See Eligh, 544.) But then, if there was mo difference, those who left the church had clearly given up their claims. In the opinion in Galbraith v. Smith, to which I have adverted, the view taken of this case is (as I understand), that the result was to take adherence to the Synod as the leading point to be inquired into ; and though the matter is sometimes expressed in one form, and sometimes in another, yet the dissatisfaction stated with Lord Moncreiff's short summary of the cases leads to that impression. Lord Meadowbank's opinion has 232 LEADING ECCLESIASTICAL CASES been, I know, so understood, and was quoted to us as the latest exposition of the law, and I suspect the pursuers' action was framed in special reference to it. But the view I take concurs entirely with the brief notice given by Lord Moncreiff ; and I rather think that both the present Lord President, then Lord Justice- Clerk, in the declarator in Galbraith ii. Smith, 1839, and Lord Medwyn in the case of interim possession in 1837, differ essentially from Lord Meadowbank's view of the former cases ; although on the facts of that case they held that Mr. Smith had failed to shew that the pursuers had departed from the standards of the Eelief Church. As no difference could be made intelligible to the Court in Craig- dallie's case, then, in that very strange and unexampled state of things, the party leaving their Church and Synod were held, as the only mode of solving the matter, to have gone out of their congregation and trust without cause ; and in this way alone it was that the concurrence between Aikman's party and the Synod came to be of weight. The truth is, that if the original principles of the congregation are established, adherence to them, and not to the Synod, is the rule fixed by the case of Craigdallie ; so that separation from the Synod is really in that case immaterial. If the party separating have departed from the principles of the original trust, then, in respect of that departure, they lose their property, though in connection with the Synod. If they have not — if that is not made out — then separation from the Synod is in itself of no moment — for the Synod may have departed from its principles. The standards of the Synod may be very important in evidence of the principles of the congregation itself, and the declared adherence of the Synod to these standards, without addition or construction, may also be important in the matter of evidence ; and if the parties, though a majority, can shew no departure in those who adhere, then the fact of separation may cast the balance in such a case as Craigdallie, or it may not. But the mere fact of separation from the Synod or governing body in any congregation in which the trust is for the members of the congregation, and where the principles on which the association was formed can be ascertained and cleared up, so as to shew what was the object of the trust, is in itself of no moment, unless adherence to that body is made all essential condition in the contract, without reference to principles or opinions. The question is, whether the congregation itself, or what portion, adhere to the principles, the maintenance of which formed the purpose of the original trust. Here we must keep steadily to our proper duty as a court. We have no concern with the duty of union, the sin of schism, or the expediency DECIDED IN THE COURT OF SESSION. 233 and importance and policy of subordination, in all churclies according to their several schemes of government. With such matters we have no concern — first, because, as the case of Craigdallie proves, the connection w^ith, and subordination to, any ecclesiastical superiors, must be matter of contract proved in evidence, in order to be a subject for a court of law ; and, secondly, because the duty of union, or the sin of schism, is an element of consideration so perfectly arbitrary, varying so much according to each individual's notion as to a church, or as to particular churches, that no two men could ever concur in administering justice on such a ground. Laying aside, then, all prepossessions on this subject, we are to look to the matter solely as a court of law. Then the next point is clearly to understand what the pursuers mean when they maintain that separation from the judicatories of the Secession Church involves forfeiture of the property. Though several times pressed to state what was their legal proposition they avoided carefully giving us any explanation on the point ; and, so far as I could discover, the two counsel for the pursuers were not exactly agreed on the subject. The two pleas on record are as follow : It is most important to con- sider them — "1. The church or meeting-house, and other property now in question, having been purchased and acquired, and held in trust for the behoof of a congregation of Seceders, dissenting from the national Church, but remaining in communion with the United Secession Synod, now called the Synod of the United Presbyterian Church, and the de- fenders, who formerly made a part of such congregation, having now either become an independent congregation, or having joined with some other religious body, are no longer entitled to claim the possession or use of the said church and meeting-house, or other property, and decree ought to be pronounced in terms of the conclusions of the pursuers' libel. 2. The mere averment that the defenders hold certain tenets similar to those which were held by the congregation for whose behoof the property in question was acquired and held in trust, can be of no avail, even if it were true, seeing that the property is not held for the behoof of a congregation holding certain tenets, but for the behoof of a congregation remaining in communion with a certain ecclesiastical body, and subject to the jurisdiction of the Synod and other courts of that body." The first is vague enough^ — the second, as worded, is directly against the judgment in the case of Craigdallie, unless it is made out as matter of fact that such was the trust by the original contract of parties. But then arises at once the great importance of the question put by Lord Eldon. Quid juris, if the whole congregation had refused longer to be subject to the jurisdiction of the Synod : Is it maintained that the 234 LEADING ECCLESIASTICAL CASES congregation would forfeit their property, and in favour of whom ? Has the Synod (apart from the technical objection of not being an incorporated body) any right to enforce such an alleged condition by claiming the property 1 There is no greater error than avoiding the consideration of fundamental principles, as was done in this Court in Craigdallie's case, by stating that extreme cases are to be judged of when they arise. But this question by Lord Eldon, and urged in this Court, is not putting extreme cases, but only consideriug the consequences, when legitimately followed out, of such vague propositions as those stated on this record ; and in that way alone can the principle really at the founda- tion of the plea be correctly ascertained and understood. Now, then, is this a trust only in name for the congregation, but in effect and reality for their ecclesiastical superiors ? Is it a trust for the Burgher Associate Synod, and subsequently for the Secession Church ? Have any parties personce standi under this title to vindicate the property as not that of the members, in the event of their no longer remaining in connection with, and subject to, the United Secession Church? That proposition the pursuers would not directly maintain. Yet that ought to be the result if the plea is sound ; for what is the meaning of a trust of property, the condition of which is adherence and subjection to the ecclesiastical superiors of the sect, and in regard to which separation from that body is a violation of the trust, and infers forfeiture of the property? It means that those who originally acquired the property, and formed the trust, did not intend that the property should ever be diverted from the purpose for which it was held ; and hence, if a fundamental condition was subjection to the governing body, then the whole congregation ought to forfeit the property in the event of separation. If not, then clearly such subjection was not a fundamental purpose of those who formed the trust. Now, the pursuers would not maintain that, if all the congrega- tion left the Secession, and an entirely new set of persons came forward saying. We are now Seceders in Kirkintilloch in connection with the Secession Church, and though only jiist formed, and never part of the former congregation, the result would be that the members of the con- gregation which had always been there would forfeit their property. That the pursuers could not, and did not contend. Yet unquestionably, if it was a proper trust for union with the Secession Church in the ab- stract, that would be the result, and one quite easily extricated in point of law. But, iu truth, the whole of this plea is an attempt to confound two things, distinct in nature, and origin, and results — a trust for the members of a congregation, and a trust for the governing body of such sect, or for the use of any congregation of that sect at the place. DECIDED IN THE COUET OF SESSION, 235 Then, is adherence to the Secession Church proved to have heen matter of positive contract, which is to decide the property, although the majority retain all the opinions on vchich the original parties associated? The original title contains no other description of the parties than the memhers of the associate congregation in Kirkintilloch, commonly called Seceders. For a long time the Seceders had been divided into two bodies, and in 1792-3 new divisions were beginning to spring up among them, from a variety of causes, which led to further splits. There is no minute of the congregation at the time produced, declaratory of any other union between its members, than simply that of a congregation of the class called Seceders. The title is even iqore general, as it was originally expressed, than that in Craigdallie ; for, ia that case, there was the element in the original minute of submission originally to the ministry of Mr. Wilson, one of the four founders of the Secession, and further minutes, which very clearly established connection with the small presbytery of the Secession, in the very outset of its earliest meetings. Accordingly, the House of Lords, even in the judgment of reversal, had no difficulty in finding, " as a matter of fact sufficiently established by proof, that the society originally formed acceded to a body termed in the pleadings the Associate Synod." But, so far from that fact of accession by the original society to the Associate Synod leading to any conclusion in point of law, when a portion of the members subsequently separated, that it was held only to require proof of the doctrines of the original society, so as to see whether, as matter of contract respecting the purpose of the trust, separation from the Synod could have any effect at all, if the parties maintained the principles of the original congregation. At the date of the formation of this society, and at the date of the original title in this case, thirty years later, adherence to the United Secession Church could be no part of the objects of the society, or of the purposes of the trust which they constituted, for the United Secession Church did not then exist. This consideration is to my mind quite conclusive. "We must look to the conditions of the contract, or purposes of the trust, as originally formed by those who united into a society for certain purposes, which by their opinions, and their opinions alone, are to be determined. And adherence to the United Secession Church, formed sixty years after the union of the society of Seceders at Kirkintilloch, could not be a funda- mental condition of the original trust. However, let us see how far the case is altered in the progress of things. The titles in 1832 and 1836, taken after two of the bodies of Seceders, not all, had united in 1820, add the words, " and presently in connection with the United Secession Church." I have already said that 236 LEADING ECCLESIASTICAL CASES there is no proof whatever that this addition was the result of any minute of congregation, or agreement among the ministers, or was accompanied by any declaration or bond among them, by which any particular effect, as matter of contract, was to be given to these terms. The union having been formed, and as this congregation went along with it, the title was naturally expressed, so as to describe them as presently in connection with that united body. But that description does not go further than the finding of the House of Lords, that the society forming the Kirkin- tilloch congregation had acceded to the Associate Synod, even if it had been proved that the terms of the addition on the title had been made known to the congregation. Th? terms are happily enough chosen as descriptive of the state of the fact, at that particular time, but clearly denote that they are terms of present description, and no more. That union was a change — a great one — it might or might not answer — it might or might not lead to other changes — and the Campbeltown case shews that, as early as 1832, proposals for union with the Eelief Church had been mooted. Whatever changes might happen could not be fore- seen — the permanence of the union of 1820 might be doubtful, and hence a phrase is taken which seems to me to be curiously significant of the independence of the congregation, so far as their property is concerned, and felicitously limited to the existing state and accidental position of the congregation at the time, so as to imply — for such is to my mind the implication — that, so far from these terms of description making adherence to the United Secession Church a condition, and a paramount condition, of a new trust — for it would have been a new trust — they were intended merely to describe the parties as they stood at the time being, and to preserve the proof, that by being " presently in connection,'' what they were in future to be, or might be, so far as that body was concerned, was no result to be provided for in such a manner. To hold these words as imposing the condition of adherence to the United Secession Church, and involving forfeiture by the simple act of separation, is not only directly at variance with the judgment in Craig- dallie, where accession by the original society was proved, but the most violent interference with a trust previously existing, which to my mind can be figured. I take the case first, then, in the simple light in which the pursuers attempt to represent it — viz., that the majority of this congregation have separated from the United Secession Church ; and if that act alone is the ground of action — and it seems to me to be so — I must hold that such separation is no violation, as the pursuers subsume, of the conditions on which the property is held in trust,, so as to lead to forfeiture. There is no proof whatever that such separation is a violation of the trust. Here DECIDED IN THE COURT OF SESSION. 237 again I must protest against the influence of any general notions of sub-, ordination, union, or schism, on the rights of property of the defenders. These notions misled the Court in CraigdaUie, and cannot fail always to be a source of error injudicial decision. The only question is, "Where is adherence to this United Secession Church declared to be the condition on which the property is held in trust 1 The Seceders hold by the Confession of Eaith as regards the govern- ment of the church by presbyteries and synods, as did the four who seceded before they could form a church, yet submission to any one governing body is not in the Confession of Faith, nor added by the Seceders by any article at the time this society was formed, or since. At the time of the split in 1747, although one set had the majority of ministers, and might have been held to be the synod, yet each congrega- tion, though previously acceding to that synod, chose their own course, and acceded, as it pleased them, to Burghers or Antiburghers ; and such a point as that stated by these pursuers was not then thought of. Most of the Seceders agreed to the union of 1820. But this submission to such ecclesiastical superiors is entirely a voluntary association : The jurisdiction of such united body might be found not to answer. Less zeal might be observed, some might think, just because the two bodies ceased to stand opposed. New views might creep in — change of tone, even indicating to jealous minds more serious tendencies to change ; and if this congregation, whose property stands as I have stated, think it is not for edification to continue in connection with this United Church, they are entitled to withdraw, I apprehend, whether they expose themselves to the charge of schism, or caprice, or jealous captiousness, or not. They are as free to withdraw from, as they were to enter into, connection with the United Secession Church. Now, the above is truly the ground of action ; and if it fails, I see no other ground on which the summons can rest. But further and separately, supposing that, in the event of separation, any onus is laid on the majority to vindicate their grounds for separation, this ground of action — separation — is curiously complicated when the facts are considered. The pursuers say this separation was complete in October 1846, both as to Dr. Marshall and the majority of the congregation. The state of civil rights must be looked to and disposed of as at that date, and the property was then forfeited, so that the union consummated in May 1847, though agreed to in October 1846, is of no relevancy in this action as matter of defence. But the facts do not bear out this view so as to lead to the results contended for, even if separation in the abstract seemed prima facie any violation of the conditions of the trust. 238 LEADING ECCLESIASTICAL CASES 1st, 1 am not prepared to hold that the course followed by the Synod was, in form regular, complete, and sufficient to dissolve Dr. Marshall's charge, and to infer, from the date of his protest and that meeting, loss of civil rights, if he any had, in this property. When forfeiture is dated from a certain pu7ictum tempm-is, the proceeding must be at that date sufficient, correct, and complete, according to the forms and usages of presbyterial discipline. I think it was not. But on this point I do not rest my judgment. 2dhj, As against the majority of the congregation, so as to date, as a legal result, forfeiture of property from a certain day, there is no act of the Synod whatever. The congregation, I shaU assume, adopt and adhere to Dr. Marshall's protest, and notify that to the Synod — by which act, they say we remain as we were, true and proper Seceders. Ifow, against the congregation no step whatever is taken by the Synod to throw them out of the church, or by the pursuers even by protest, so as to enable the pursuers to maintain that the forfeiture took effect irrevocably from and after a certain date before the institution of this action. The case there- fore fails here as against the congregation. But Zdly, and mainly. As regards both Dr. Marshall and the congrega- tion — and on this ground I rest my judgment — supposing separation to involve prima facie any violation of the conditions of the trust, to the extent of requiring reasons for the separation to be established, the separa- tion was not, in truth, from the United Secession Church such as it had existed, but withdrawal from it in a proposed act of union with another distinct and separate sect of Christians. It appears that, owing to certain opinions which Dr. Marshall ascribed to some eminent men in the Secession Church, he apprehended dangers to the truth, and brought these opinions, or modes of expressing opinions, before the Synod of the United Secession Church at last in the form of a libel. More important errors than those he imputed could not well be stated by those holding the standards of that Church ; but the more im- portant the doctrines, the less, others thought, was heresy to be presumed ; and the more were expressions, though perhaps thought to be incautious, novel, or ambiguous, to be favourably construed, as others thought, especially when the errors imputed were disclaimed by the parties, and they met the charge by declaring their agreement in doctrine with the person imputing heresy. I hope I avoid the slightest indication of opinion or remark on this part of the case, in what I am stating. Dr. Marshall thought the Synod erred grievously in not, by severe sternness of expression repressing what he thought had (to say the least, in his opinion) the appearance of countenancing the errors in question ; and he plainly thought that the leniency proceeded from secret but unavowed tendency DECIDED IN THE COURT OF SESSION. 239 in the majority of the Synod, or those leading them, to the errors them- selves. Still that was disclaimed by the Synod ; and hence, whatever Dr. Marshall might dread or suspect, he then, it appears, saw no cause for separation from the United Secession Church, which professed to agree in the views he held ; and hoped, probably, that what he thought sounder doctrines, or sounder exposition of them, would gradually be restored. At all events, whatever his views, he did nothing in May 1845. But a general movement was going on for union with the Relief Church — pro- posals had been sent round to all the congregations, seemingly, of the Seces- sion Church — committees of both bodies had met, and had framed articles of agreement or union to be proposed to and considered by, the Synods of the two bodies respectively. These, of course, must have been well known, in substance at least, to every intelligent minister of the Secession Church, especially one taking an active part in polemical or theological discussions in that body. But this proposed union plainly might alter, and very reasonably, the whole aspect of matters in Dr. Marshall's opinion. He might have ascribed the judgments of the Secession Synod, to which he objected, to the influence of eminent and learned individuals in his own body, or to the natural reluctance on the part of the body to believe in any heretical views, or even objectionable expressions, on the part of those who had long been able and faithful ministers of the Secession ; and so he might think, that when the influence of these men died away, the doctrines preached would be more in conformity to his views of their standards of faith. But if another and powerful body of dissenters were ready to join the Secession without objecting to what had been done as to these doctrines, during the very time the discussion as to union was going on. Dr. Marshall might naturally dread, on the part of that body, a tendency to favour the same errors, and might think that, if the union were formed without a distinct acknowledgment of these tenets being erroneous, the standard of faith woiild be for ever and seriously impaired, and most dangerous doctrines come to prevail. Hence the occasion of the proposal for union seemed at once to suggest and require a preliminary declaration, as he might think from the Secession, to secure the purity of their own faith, and to test the views and tendencies of those with whom they were about to unite. So advanced was the matter of union, that an extraordinary meeting of the Synod was called, as the summons says, for the purpose, principally, " of discussing the terms of the proposed basis of union." Three meetings were held — reports as to the answers by congregations received — and the report of the joint committees of both bodies read, containing a scheme and basis of union, copies of which had been sent to all members of Synod, as the minutes bear. Hence the whole scheme was before Dr. Marshall, 240 LEADING ECCLESIASTICAL CASES and we have not heard that any substantial change was made. At the fourth meeting, the terms of the proposed articles of union were taken up. Plainly at this meeting, then, arose the time for any preliminary condition to he brought forward. If that was rejected, then it would have been absurd and inconsistent for any one holding that preliminary to be essential to go further in the proposal for union. The first article was one too abstract, but too true, to open up room for any other motion. When the second section was read, then Dr. Marshall moved — (reads, as quoted supra). This was a motion as to the necessity of things being done preliminary to any union with any body. It was an objection to union — and on the preliminary ground "we have something ourselves to do which has become necessary when another body is proposed to be associated in government, discipline, jurisdiction, and ecclesiastical superintendence, the effect of which no one can anticipate, on our practical position in regard to faith, doctrine, and discipline. Dr. Marshall's motion was for a preliminary step to union — an objection to going into union without something being done : it was rejected. Then came his protest, which seems to be framed on the model of the one in the Craigdallie case, making allowance for that greater intensity of expression which the far greater importance of the grounds taken by Dr. Marshall, and, it may be, the difference in the temperament of different minds, might lead to. In effect, however, it was not so strong an act of separation as that in Craigdallie. To this protest the congregation adhered ; and I shall assume that the case is to be judged of by it. Now, the facts shew that this step cannot be separated from the pro- posal to unite with another body, in consequence of which, and as a con- dition of which it originated, and was brought forward. Prom May 1845 till October 1846, Dr. Marshall had been quiescent on the subject of the alleged heresy. He joins the meeting called to consider the union, and at the fourth meeting makes his proposal for a preliminary condition, grounded, it is true, on the former acts of the Secession Church, but which are taken up owing to this proposed union. Whether we think this a reasonable or fitting preliminary to union with another body is not the question. The matter of actual fact is that it was in respect of the proposal of union that, at the meeting called to discuss the basis of union, that motion was brought forward ; and we have not the slightest particle of evidence that but for that proposal of union, the terms of which, as agreed to by the joint committee, were promulgated, Dr. Marshall would have taken any such step. The summons implies the reverse. This, then, is in truth an objection to union — whether stated in the exact form and way which a skilful la^vyer would have put it in reference DECIDED IN THE COUET OF SESSION. 241 to the legal questions to wMeli the protest might give rise, I do not inquire ; for I must look to the plain substance, and honest reality and purport, of what is done ; and I regard that protest, in the circumstances, and having regard to the time and occasion when it was stated, as a refusal to go along with the Secession Church into the union, the terms of which this extraordinary meeting of the Synod was called upon to consider. Then, viewed in this light the objection to such union, either absolutely, or on such conditions as any congregation chose to stipulate for, was a matter of perfect competency on the part of any such society. "Whether the body generally could compel any objecting congregation to join in this union under the penalty of forfeiting their property, or whether, if a majority of such congregation refused to concur in this union, they must lose their property, held by a trust, long previously constituted, and surrender it to a minority, although against such majority not the slightest departure from principles is averred, are points on which, although very urgently put to the counsel of the pursuers, we got only, at last, not a very distinct answer, and not one word of argument. Mr. BeU. most dexterously assumed that the defenders admitted that they must justify refusal to go into the union, by shewing the union to be unconstitutional or illegal, and contented himself with an elaborate argument to shew that it was neither. The Dean of Faculty waived the point entirely, for he argued that the property was previously and legally forfeited before the union, and that the whole matter as to the union was thus entirely out of the case. But when we are brought to the point — if the separation is truly on occasion of, and in respect of, the proposed union on a basis objected to, is the property of the majority to be forfeited without any change of principles on their part, simply because they refuse to go along with the United Secession Church into the union ? "We have not heard any distinct plea stated, much less argument in support of such a novel proposition, in regard to the position of congregations of dissenters. I am very clearly of opinion, that whether in other respects united to ecclesiastical superiors, and whatever might be the effect of separation if not arising out of such proposed union, any congregation, in the circum- stances of this one, is entitled to refuse to submit themselves to any such changed government, or to concur in any such union. This is, in my opinion, the leading and most fundamental principle of all such associa- tions as that of a congregation placing itself in connection with, and under the superintendence of, ecclesiastical superiors, such as a synod or presby-. tery of a body already formed — ^known as composed of certain classes, called by a certain name, and among whom certain standards, and perhaps still more certain great fathers and lights of the truth, and only these, are B 242 LEADING ECCLESIASTICAL CASES revered, appealed to, and looked upon as authoritative and con- clusive. The desire to keep separate— to keep up one sect apart from all others — as in itself a good way strictly to maintain certain peculiar opinions, especially if of a severe and stern character — to stand by a name as recalling for ever the struggle in which the sect had its origin, and fixing down, as it were, in stern, exclusive, and deeply graven characters, the aspect and tone of language even, as well as of devotional sentiment, which that name forces on every one — the desire to prevent the risk of defection in faith or in zeal for that rigorous exposition of doctrine, which the very name of such a sect as the Secession may be thought to guard against, by a sort of standing reproach to all who do not utter the very language of Erskine, Wilson, Fisher and Moncreiff, and the resolu- tion to make no union with any body, but steadily to require aU to join distinctly to the name of the Secession, in order to proclaim that, as it was formed in 1733, so it remains, and, on that footing, that all must enter it as members thereof, without separate pretensions, notions, or origin ; — Such desire may be unreasonable — it may be to many unintel- ligible — it may appear idle caprice : But it is the first privilege of every congregation of such a body — it is their right — it is a desire springing from attachment to the causes which led to the formation of the Church, and the constant commemoration of which, as the true (and, they may think, the most important) distinctions from all other churches, they may deem the best safeguard for the maintenance of the principles involved in these causes of secession. It seems to me utterly repugnant to every notion of such a sect to suppose that their congregations can be compelled to unite with any other church or sect whatever. I avoid, of course, expressing any opinion of my own — I shall only say, that if I had belonged to the Secession Church, and cherished the opinions and principles on which it was formed, I believe that I would not have united with the Eelief, so much do I understand the objection, even without examination of special reasons assigned — at least I most perfectly understand, as conscientiously operating on others, this general objection. But be the general objection in the opinion of others valid or fanciful, it is a change to which no congregation is bound to submit. ! For separation, then, when such union is to be entered into, no reasons, in my opinion, need be assigned : The right to refuse is absolute ; and the notion that the majority is to forfeit their property, is, in my judgment, perfectly extravagant, and without the slightest support from any evidence that such is a condition of the trust. Indeed, I did not hear it maintained, that obligation to unite with other sects was an original condition of this trust, held for a congregation of Seceders. It DECIDED IN THE COURT OF SESSION. 243 would be a very strange condition to incorporate witk any trust for a congregation of old Seceders. But even on the supposition that the majority must, in a question ■with the minority of the congregation, assign reasons in order to justify their refusal to go into this union, sufficient reasons have in this case been stated on which a majority of a congregation are well entitled to refuse to be parties to any such new cast of government or novelty in their Church. Here, I am afraid that it may appear as if I were expressing an opinion of my own as to the propriety or fitness of the union formed. I have no such intention. The question is not one on which a court of law can decide. The fact that such large numbers of professing Christians, guided by divines of great learning, talent, and zeal, were able to lay aside sup- posed difierences, and unite in one church, is itself sufficient vindication of the measure. But, then, although we are not to decide whether the reasons against the union are weU founded, yet, far short of that, in such a question there may be fair grounds of objection, strongly founded in the feeHngs of the sect, upon its past history, on the previous differences between the two bodies, and on the mode in which it is proposed to get over these differences, and to exercise discipline in the proposed united body, which, operating on the minds and consciences of majorities in congregations, may well entitle them, members of a particular voluntary association, to say, " We must remain as we are : We have no confidence in this proposed union : To us it seems irreconcilable with the tenets, spirit, and character of our sect, as we understand them, and as the divines we look up to expressed and recorded them : With their language you cannot reconcile this union ; and we prefer their language to your more soft and modified statements as to points of difference : We call things by the names they used : They may be wrong — but into that we do not enquire : We associated for adherence to these stern old champions of the Secession, you may think, even in their errors and uncharitable view of others : But that was our principle of association, and it forbids us to call the EeUef Church our united brethren." In estimating the reasons assigned, it would have aided the Court much if the pursuers had distinctly announced what extent of power they held the other congregations and the Synod, or what the minority of a congregation, had over the majority of a congregation who declined to enter into an union with another church, which to the Synod appeared reasonable and expedient. I should have wished to see some precedent on such a peculiar and most delicate question as to the rights and interests of dissenting bodies. Binding such authority was not contended to be irrespective of the character, and objects, and nature of the pro- 244 LEADING ECCLESIASTICAL CASES posed union ; but what degree or extent of authority exists on such a matter we are not told. I lay aside, as altogether unworthy of ohseryation, the plea, that this was not an union with another sect, hut an extension of the Secession, by taking in a number of Eelief congregations who chose to join. In such a case, no union, or basis of union, would have arisen for considera- tion. Such congregations would simply have been admitted into the Secession Church as members of the same, according to its own opinions — sinking all opinions of their own. The whole negotiation, and the articles of union, prove that the two bodies were most jealous on the point of not sinking one iato the other by simple admission into it ; and that, as the Secession would not enter into the Eelief, so neither would the Eelief enter into the Secession. It was to be in the most marked manner a union of two separate churches, even stipulating for continuance of differences of opinion after union — a thing unexampled. That the two sects were, in origin, actual presbyterial government, and professed tenets on certain points, quite separate churches, is matter of fact sufficiently proved. That the difference of tenets also was such that to many minds they might seem irreconcilably opposed, is also, I think, fully made out by the fact, that for long they did oppose each other in very strong terms — although, to many other minds, such differ- ence may have appeared to be immaterial, or to have been removed, as the union actually proves to be the opinion of many. But to the opinions as expressed by their forefathers and leaders in the Secession Church, although it may seem to others that it is only to exaggerated expression of opinions that the parties cling, any congregation, or majority of the same, was well entitled to cling, and to maintain that such recorded opinions of those in whom alone they trusted, and to whom they acceded as the expounders and defenders of their faith, proved the union to be against their principles. They are well entitled to say, " We wish no modern or modified exposition now of the Seces- sion : We rely wholly on the views of the founders and fathers of the Secession : They made the church : They fought the battle : We think with them : We view others as they did, through their uncompromising view of matters — and we feel ourselves resolutely opposed to union against their views : The very statement that there has been no real difference between the Secession and the Eelief, or that the grounds of difference have been removed, greatly alarms us : We think that state- ment forebodes an entire change in the character of our church, and is in itself a change of views : How would the divines, whose writings we adhere to and revere, have been startled to be told. You were writing without sense or meaning : Your denunciations of error were senseless or DECIDED IN THE COURT OF SESSION. 245 groundless." Now that the views expressed by the earlier Seceders respecting this younger offshoot from the Establishment are such as to imply, in their opinion, utter repugnance — substantial difference from, and much hostility of aspect to, the Secession — is beyond doubt ; and to such views of these matters, which go to the original character and spirit of the Secession, the defenders are surely entitled to adhere. " We wish to avoid now," they say, "to reproduce in our own language any such condemnation of the views and of the origin of the Eelief Church as our forefathers have recorded : but if you insist on this union we tell you we think of that church as they thought — we adopt their language : If they have changed — if they now are true Seceders — their remedy is simple : their course plain : let them, as converted and penitent brethren, apply by individual congregations to be admitted into the Secession. But such is not their object or position. They make no acknowledgment of error : They make no acknowledgment of the original principles of the Secession. Each is to be silent as to the origin of the other, or of itself." Then, with these views, this congregation examine the terms of the proposed basis of union, which had been arranged by the joint com- mittees, and sent round to all the members of the Synod of the United Secession Church, before the extraordinary meeting in October 1846, and they find in it matters which, in their views, might naturally confirm them in the belief that the union was objectionable in principle, and really was a compromise on matters where they think there should be no compromise between two bodies truly opposed in material points. 1st, As to communion with ministers of other bodies : This cannot be said to be an immaterial matter to the members of a particular religious sect. It may be regarded as of importance in keeping up a standing testimony to the distinguishing tenets of their own sect — as preventing offence to members of congregations by having ministers of bodies differing from them, and as practically keeping their own ministers more steady to the style and tone of preaching which their people prefer. It may be viewed even in higher points of view, as many, if not all, of the old Secession fathers did view it. Now, on this point, what is to be the rule in the proposed united church, and how is discipline to be enforced? "We are told," they say, " that we may enter into any of the churches, and find it the same as one of our old Secession meeting-houses : Then, what is to be the rule of communion 1 None. The ministers of the Eelief may follow their own freedom as before — may bring into their pulpits — which are to be pulpits of the church we are to belong to — ministers who have no sort of sympathy or common sentiment with the Seceders ; and if a matter of discipline on this matter occurs, if we complain, our rules are not to be enforced — those who were Eelief ministers may still 246 LEADING ECCLESIASTICAL CASES act as they did before — and our ministers and elders must either with- draw, or sit silent in presbyteries and synod, or leave the whole matter to the members who were of the Belief, to be judged of by their separate rules prior to the union : Such is the scheme of government and disci- pline specially provided for by section 6 : To this we object, as involving contradiction of discipline and practice in the same church, and repug- nant to our notions of the right government of a church." To such an objection, what answer can be made which is to warrant a court of law to say that the majority of a congregation so viewing the matter must nevertheless go into this union or lose their heritable property ? Then, in section 10, the congregation may say, "we find that the Belief ministers and laity are not required to approve of the steps of our fathers in the Secession, and of course neither will any of the future members of this new united church. Indeed, on what footing future members join, whether as Secession or as Belief, or as members of a new third body, in which adherence to the Secession is purposely sunk, we cannot tell. To that we object as abandonment at once of the matters most dear to us, and most valued by us, as distinct from other Christian bodies — as a renunciation of the old Secession — and as leaving us to be hereafter a body of dissenters, no one can tell of what character, since the church that is to join us are not called on to approve of the procedure of our fathers, and all future members enter on any footing they like, without distinguishing bond or characteristic of union, and our Secession views may never again be heard of." To this point I attach great importance. Let us see the terms of this article — (reads). Are Seceders not entitled to object to this 1 Are they not entitled to ask. What are future members to be? The present Belief unite in holding all their opinions, and are not called on to approve of the Secession : That is bad enough. But as to future members, what sect are they to join ? What opinions are they to profess ? How is the old Secession to be kept up ? Surely these are questions to which the defenders may well attach importance. The question is not whether the Court thinks the course objectionable, but whether such and many other objections are not of such a character as fully to justify, in regard to a measure which is to be matter of agree- ment, any congregation in declaring that they must now refuse to go along with the Church into- this union. I shall only say that to me it appears that the objections are such as cannot be overruled without direct encroach- ment on rights of conscience. But the closing and decisive consideration is that which from the out- set of the case must be kept steadily in view — which, in my own view of the law and of the facts, is of itself conclusive. This congregation — I call DECIDED IN THE COUET OF SESSION. 247 it the congregation, for the majority are of course in the first instance to be so regarded — this congregation have not changed one opinion or tenet of their forefathers of the Secession. They adhere to them all — they ad- here to them as they have ever been taught and expounded in the supreme church. No departure from such tenets is alleged against them. Their orthodoxy is not impeached on any one point. They remain as they were. They desire so to remain. The only act averred against them is separation at this conjuncture of union — i.e. refusal to go along with the union. But compulsory adherence to such a measure is no part of the contract of the trust for this property ; and hence, when their principles, tenets, and practice, remain unaltered, there is no legal ground on which their property can be forfeited. In the foregoing views of the case I have not adverted to one defence, which might yet remain to be disposed of j for though the defenders very properly have hitherto waived entering on it, and declared their anxiety not to do so until their other defences are repelled, it is stated ; and if I am wrong in the grounds on which this opinion proceeds, must be investigated. The defenders say, "We do not admit the protest to be an act of separation of the character you the pursuers ascribe to it : We do not ad- mit that we separated from the United Secession Church on account of its proceedings and errors as to matters of doctrine : But if the Court do view the separation as one proceeding on alleged defection from the faith in the proceedings of the Secession Church regarding doctrinal errors, and if a majority of the congregation cannot withdraw from the jurisdic- tion of the Synod and retain their property, without proving such defec- tion on the part of the Synod, we are ready to justify, on that ground, that separation — not only by saying, negatively, we hold the old opinion of the Secession- on those important doctrines to which we allude, but that the Secession Church has sanctioned grievous and most dangerous errors in one of the first articles of Christian belief, according to our stand- ards of faith." However unpleasant the examination of such alleged deviations of any particular church from its standards may be, we cannot refuse to enter on the enquiry as matter of fact, if the case is brought to that issue ; for I quite agree with Lord Medwyn in the case of Galbraith v. Smith, that although the whole Synod had concurred in deserting their original prin- ciples, yet we are bound to enquire into that, and maintain the property for the congregation adhering to these opinions. Neither do I admit at all the incompetency of judges for enquiring into, and comparing, the con- currence of any religious opinions with the standards adopted by any body of Christians as their articles of belief, or for ascertaining departure from 248 LEADING ECCLESIASTICAL CASES tte same. We are as competent as other men to form a judgment on such points, and it may become our duty to do so. But, in the view I take of this case, we are not driven into this enquiry, and, I hope, may not be compelled to enter on it. I have adverted to the fact, that against the congregation no step was taken, even in the Synod, to cut them off from the Secession Church, and to announce forfeiture of property before the union took place — much less was there any declaration of forfeiture in a court of law before the union. When the matter, then, is raised, I apprehend the pursuers, who have joined the United Presbyterian Church formed by this union, may now, under this summons, be competently met by the congregation with the plea — " The case does not turn on the state of matters in October 1846 : You now come forward as the adherents of a new judicatory formed by this union, and your own summons entitles us to meet you with the answer, We are no parties to that union — we form the Secession Church as it existed before the union — and we are unchanged." Perhaps this answer, though more technical, might be sufficient in itself for decision. But while I think it conclusive, I have thought it better to go over all the different views of the case, as others may not take the same view of this point. On the whole, the defenders must, in my judgment, be assoilzied. Lord Monckeifp. — The only question which this Court is properly called on to decide, is a question of property — of patrimonial right in an heritable subject. But in extricating such a question, it may sometimes be necessary for the Court to take some view of questions of a different kind — questions of religious principle, or ecclesiastical foundation, in the parties claiming such property. And when this is necessary, it is com- petent, and consistent with the practice in other cases, as laid down by Lord Eldon in the case of CraigdalUe, that the Court should take cognis- ance of such questions as matter of fact, but only to the effect of clearing the question of patrimonial right. For my own part, I should have thought that there were, in the'nature and terms of the summons in the present case, and in the record, facts sufficiently ascertained, on which the legal question of property might be safely determined, without any necessity of entering into the questions of religious controversy which are involved in the history of this congregation or of the United Secession Church, with which alone it was connected previous to the commencement of the proceedings out of which this cause has arisen. But as it has been thought that such an enquiry might become necessary in the final adjudication of the cause, I am very well pleased that we have had the whole matter thoroughly sifted in the able pleadings before us. DECIDED IN THE COURT OF SESSION. 249 The parties are agreed as to the terms by which the property of this church was and still is held. It was originally acquired by a society or congregation of persons who had seceded, or separated themselves, from the Established Church of Scotland, and who at that time (1765) were in connection with that portion of the original Seceders who got the name of Burgher Seceders. That name had arisen from a division which had taken place among the original Seceders of 1733, from a difference of opinion concerning the obligations impHed in the burgess oath, which was then in force, in consequence of which they had separated into two divisions, called Burghers and Antiburghers. The founders of this chapel at KirkintUloch belonged to the Burgher division. But the title to the ground was taken simply to James Baird and others, etc., as trustees and fiduciaries " for behoof of the members of the Associated Congregation in Kirkintilloch, commonly called Seceders." WhUe the ground and meet- ing-house were so occupied, the cause of difference between the Burghers and Antiburghers is said to have been substantially removed, by the aboli- tion of the burgess oath ; and in consequence of this, these two bodies were again united by agreement in 1820, and took the name of the United Secession Church. To that union the congregation of Kirkintilloch, in- cluding Mr. Marshall, who had previously become the minister of it, had unanimously consented, and so by contract had come to be in connection with that body, called the United Secession Church. After this, in 1832, in order to continue the title, James Baird, the survivor of the original trustees of the Church, conveyed the property to the defenders and other parties, as trustees " for behoof of the members of the aforesaid Associated Congregation in Kirkintilloch, commonly called Seceders, and presently in connection with the United Secession Church ;" and the title to addi- tional ground acquired in 1836, was taken in the same terms. "With reference to other cases which have occurred, it is material to observe that the trust constituted in the present case is distinctly a trust for the congregation at Kirkintilloch, with no other denomination than that originally assumed as being commonly called Seceders, but with the further addition of their being presently (that is, at present) in connection with the United Secession Church. The title is not taken for behoof of any Presbytery or Synod, but simply for the congregation, though it is described as at that time in connection with the United Secession Church which acknowledged the United Associate Synod as its superior court in its spiritual condition — a description which, though not at all necessary for' the solution of the present case as it stands, might be very material, if the circumstances raised any question, such as has been faintly indi- cated, as to the right of the congregation to dissolve that connection with the Synod at any time. I shall only observe that, if the congregation 250 LEADING- ECCLESIASTICAL CASES were unanimous in such a measure, it would be difficult for any other party to resist it in any question of civil right, and that even, without unanimity, it would present a serious difficulty against any such resistance to a decided majority. But that case does not exist. For, in my view of the present case, this congregation has done no such act ; and it is not by any attempt on their part to dissolve the connection with the United Associate Synod, that this action has been occasioned. The summons is raised at the instance of certain parties designed as three of the trustees for behoof of the members of the congregation in Kirkintilloch in connection with the United Associate Synod of the Secession Church, and certain other parties described as members of the said Associate Congregation, described as before ; and after narrating the acquisition of the property, it bears that the said congregation consists of persons duly admitted by the ministers and sessions of the Secession Church, to church privileges, etc. ; and then it goes on, " That the said congregation is under the jurisdiction of the United Associate Presbytery in Glasgow, which, again, is subject to the said United Associate Synod of the Secession Church," etc. ; " that the said congregation was always a congregation in connection with, and in subordination to, the Courts, at first of the Associate or Burgher Synod, and latterly, and at present, of the said United Synod of the Secession Church ; that the said meeting- house used by the said congregation has, by its use from the first, and continuously, and by its title-deeds and minutes of procedure, been set apart and used, and held in trust, for the purpose of public worship, and the celebration of Divine ordinances, exclusively in connection with the said Associate or Burgher Synod, and United Associate Synod, and in subordination to the Church Courts of these bodies." There are some assumptions implied in the terms of this statement, when used in such a summons, which are not necessarily involved either in the terms of the title-deeds or in the admitted fact that the congrega- tion had for the time become subject, in respect of ecclesiastical or spiritual jurisdiction, to the Presbytery and Synod, as members of the United Associate Secession Church. For it is not to be taken for granted that such spiritual subjection, depending on contract alone, necessarily carried along with it any power in the Synod either to deal with the civil property of the congregation or to compel such a congregation to go into a union with a different body, without their own consent, however such a union may have been approved of by the Synod, or by other congregations connected with it. For these things are not matters of spiritual jurisdic- tion at all, though, by consent of parties, they may be made, as by contract, matters of ecclesiastical arrangement. After this the summons narrates that Mr. Marshall was licensed by DECIDED IN THE COURT OF SESSION. 251 the Burgher Presbytery, and was in 1802 admitted to be pastor of this church ; that he consented to the union with the Antiburghers, and acted as a member of the United Associate Synod ; and that he and his con- gregation remained till lately in full connection with that Synod. Then the summons bears a statement which, with reference to some views attempted in the present discussion, appears to me to be exceedingly material. It states that, for some years previous to 1845, some discussion had taken place in the Synod, upon certain doctrinal questions, which discussion was terminated by a final judgment of the Synod in May 1845, — that Dr. Marshall had taken a prominent part in that discussion, and was in a minority in the Synod, " and he dissented from the decision which was then adopted ; but upon that occasion, the said Dr. Andrew Marshall and his congregation took no further steps in consequence of the said decision, and stUl remained in connection with the said Synod. So, then, it is expressly set forth by the pursuers, that though Dr. Marshall had dissented from the decision of the Synod in May 1845, neither he nor his congregation had taken any further steps in consequence thereof, and still remained in connection with the Synod. From this, which I apprehend the pursuers cannot be allowed to contradict, I think it must be fairly inferred that there can have been no separation from the Synod by Dr. Marshall or his congregation on account of the decision on those doctrinal questions. But the summons goes on to narrate that for some time measures had been in progress for effecting a union between the United Associate Synod of Seceders, and the Synod of the body known as the Eelief Church, and that, at a meeting of the Synod on the 7th October 1846, the Synod having resolved itself into a committee of the whole house, certain pro- ceedings took place. But this statement, to be correct, ought to have expressed the terms of that resolution — " Resolved itself into a committee of the whole house, for taking into consideration the proposed articles of basis of union with the Relief Church." The only matter competent to the consideration of that committee was concerning the basis of union with the Relief Church ; and whatever took place necessarily had relation to that, and to that alone. But the summons states that in that committee Dr. Marshall made a certain motion, which motion was rejected, while another motion was adopted ; but that Dr. Marshall then stated that that decision terminated his connection with the Synod, and tendered a certain protest, which protest is recorded : — " That the committee recommended to the Synod to declare that thereby Dr. Marshall was no longer a member of the Church.'' And the minutes bear that the recommendations of the Committee, which comprehended various articles of the proposed union, were reported and adopted. But it does not state that Dr. Marshall was 252 LEADING ECCLESIASTICAL CASES called before the Synod, or that any positive measure was then adopted ■which could affect his status. The summons then explains that a member had been sent to Kirkintilloch to intimate to the congregation what is called the sentence of the Synod, though there is no sentence recorded in their minutes ; and that, afterwards, the Moderator of the Presbytery had been sent to declare the church vacant, but that he was refused admittance to the church. After some further statements, the summons bears that the defenders, meaning the whole members of the congregation called as defenders, having separated themselves from the United Associate Synod, have " violated the conditions on which the property belonging to the congrega- tion was acquired and held in trust, whereby they have ceased to have any right or title to the same." And then it goes on thus — " That the pursuers above described as being members of the said congregation have always adhered and do still adhere to the said United Secession Church, and to its principles and doctrines, and to the jurisdiction and discipline of the said United Associate Synod ;" and that they are entitled to vindi- cate the property as for " a congregation adhering to the said United Secession Church." Considering the peculiar nature of the proceeding intended by this action, this statement might appear somewhat extraordi- nary. For these pursuers, by their own statement, are not in connection with the United Associate Synod of the Secession Church, in the plain meaning of such a term. And, therefore, to explain this, the summons goes on to say, "That the said United Secession Church is now called the United Presbyterian Church, and the said United Associate Synod is now called the Synod of the United Presbyterian Church, ' composed of the United Associate Synod of the Secession Church and of the Synod of the Belief Church." And then the conclusions of the summons run upon the same thing, that the United Secession Church is now called the United Presbyterian Church, notwithstanding that the latter body is ex- pressly stated to be composed, not of the United Secession Church alone, but of that Church combined with another, admitted to have been previously entirely distinct from it, composed of many Presbyteries and many Congregations, who never formed any part of the United Secession Church. I must think that this is a most extraordinary way of setting forth a title to an heritable estate under the law of Scotland. The title to this property stands duly upon record, and it is expressly for a congregation simply described as Seceders, and as at a jBxed time in connection with the body known as the United Secession Church. There is no descrip- tion of any form or way by which that title could pass to a different body, under the denomination of the United Presbyterian Church. It is DECIDED IN THE COURT OF SESSION. 253 different not in name only (though, when we are speaking of an heritable title, and of the thing to which it relates, that alone is most material), but, by the shewing of the summons, it is different in the substance, in the parties described, and in the whole state of the assumed title. It is, in fact, a contradiction in terms ; for, while it bears that the United Secession Church is now called the United Presbyterian Church, and the United Associate Synod is now called the Synod of the United Presby- terian Church, it bears also that this latter denomination belongs to a body which is composed of altogether different parties from those of the former. If there were no difference but in the name, there would be difficulty enough. But if that could be got over, why do not the pursuers insist in their action simply as being members of the United Presbyterian Church 1 They have seen that they could not so Hbel their action, because of the express terms of the title, to which alone the Court can pay regard in such a question. But, libelled as it is, it just comes to this, that the pursuers, founding their title simply on their having been formerly members of the United Secession Church, claim the property as being now members of a different body, bearing a different name, and composed of two separate churches united under that name. It seems to me that it would be scarcely possible in any way to reach the point under such a summons, that this property can belong to the pur- suers, admitted to be a small minority of the congregation. And it being perfectly apparent that, upon the statement of the summons the pursuers really have no title, the maia object of the action is to have it declared that the trustees hold the property for them, and to have the existing trustees ordained to convey to new trustees " in such form and manner as the pursuers, and their said adherents, members of the said congrega- tion, may from time to time direct." Thus the demand is, that this property shall be taken out of the trustees who hold it, in order to be placed, not upon any defined trust, but in any manner or form, and apparently upon any terms, which the pursuers may direct from time to time. Whatever may be the merits of the case of the pursuers against the defenders otherwise, I must say that this appears to me to be the most extraordinary dealing with a trust, articulately constituted, that I have ever seen ; and if the claim were to be sustained, it would certainly form a remarkable precedent in the law of trust and conveyancing. Upon this summons, however, such as it is, the pursuers maintain — 1. That Dr. Marshall and his congregation had effectually separated themselves from the United Secession Church before the union with the Eelief Church had been effected, and therefore that they have no title either to defend their right in the property, of which they are admitted by the very form of the summons to be in full possession, or to object to 254 LEADING ECCLESIASTICAL OASES the conclusions of tlie present summons. And they maintain — 2. That supposing that the defenders are not to be held to have ceased to he members of the Associate Secession Church before the union with the Belief was effected, it was competent, and within the power of the Synod of the United Secession Church, to form that union, and to form it to the effect of compelling the defenders, as the members of the Kirkintilloch congregation, to join in that union without their own consent, and of warranting the pursuers to require a surrender of the property for a new trust, for behoof of parties exclusively who have become members of the United Presbyterian Church ; or, in other words, that the property must be held to be forfeited to the minority of the congregation by the single fact that the majority have refused to concur with the Synod in their union with the Belief. The proceeding which is supposed to have laid the foundation for the first of these pleas, appears to me to have been so entirely irregular and essentially unjust, and it is insisted on with so much eagerness, that, though the pursuers may not be conscious of it, it seems to, me to betray a strong apprehension that the case cannot be maintained on the second ground, that is, on the merits of the union with the Eelief, as affecting the defenders and the title of property. That first plea has appeared to me to be entirely groundless, being little better than a catch or colourable pretence derived from the very natural, though perhaps incautious, course taken by Dr. Marshall, in dealing with the proposal of union, and to admit of a very short and conclusive answer on the facts set forth by the pursuers themselves ; and I shall presently examine the basis on which it stands. But, as I think that any argument regarding it is very materi- ally affected by the merits of the other more important question, and as there is evidently a serious difficulty affecting the title of the pursuers to maintain the action involved in that question, I prefer going at once to the consideration of that ground of action which constitutes the real merits of the case. 1. The real difference between the parties which gives rise to this action, is undoubtedly this : That the pursuers, a minority of the con- gregation, and the body which formerly constituted the Synod of the United Secession Church, with which the congregation had been in connection, determined to form a union with the Synod and Congrega- tions of the EeUef Church ; and that the defenders, the minister, and a large majority of the congregation of Kirkintilloch, refused to concur in that measure of union, and Dr. Marshall protested against it while the treaty was under consideration ; and the defenders, remaining in possession of the church, the pursuers desire, by their action, to evict the property from them for their own use. It is remarkable that in the pleas in law DECIDED IN THE COUET OF SESSION. 255 for the pursuers it is difficult to discover this as the precise point of controversy. The pursuers endeavour to avoid a plain statement of it, and strive to disguise it under different forms of expression, though the substance may perhaps he found in the second plea. But laying aside for the present the different plea, which goes on the assumption that the congregation had left the Secession Church before the union had been effected, what I have stated is, beyond all doubt, the real point of con- troversy. The Court found it difficult, even in the hearing, to get from the pursuers' counsel a plain statement of it. Nevertheless, it is a matter which cannot be disguised, that that is the real difference ; and the material question is. Whether it was in the power of that Synod of the Associate Secession Church to compel a congregation, without their consent, and against their protestation, to join in the measure of a union with the Belief Church t If there was not power to do this, the property must remain with the congregation, for whom alone it is held in trust, and with the majority of the members so refusing and protesting. For it must be specially observed, and is indeed the most important fact, for determining the real nature and conditions of the question, that there is not in the summons, nor in the record, any averment that this congrega- tion have Ln any manner departed from the doctrines or religious principles which were held by the original congregation of Kirkintilloch, or by the original Secession Church with which they were connected. There is no such point in this cause. The pursuers say that the defenders have separated themselves from that Church now called the United Presbyterian Church, and from that Synod which is now called the Synod of the United Presbyterian Church, composed as described. But they nowhere assert that the defenders have in any point departed from the original doctrines or principles on which the congregation was founded, and the property was acquired. If there has been any departure from those principles, it is by the pursuers. But the case of the pursuers can only be that which I have stated, that the Synod of the Secession Church had power to compel this congregation to join in the union with the Belief Church, and that the congregation refused to follow them in that. "We are thus driven to enquire by what principle the question, as to the power of the Synod, and of the minority of the congregation concur- ring with them, to compel the large majority of the congregation to concur in the union, must be regulated t The trust is for the congregation ; and I think it quite clear, according to all the authorities, that if the congregation, or the majority of the members composing it, are adhering to the original principles on which they stood before this project of union arose, the property must remain with them, whatever other views the minority, or the Synod concurring 256 LEADING ECCLESIASTICAL CASES with them, may have adopted. In order to overcome this obvious rule of judgment, the pursuers say that they and the Synod are adhering to the original principles of the congregation, and, as I understand them, that the determination of the Synod must be held to be conclusive of this, not only for themselves, but as against the defenders, as being sub- ject ecclesiastically to the jurisdiction of that body. They say that the principles of the Eelief Church were the same with those of the United Secession Church, and hence that there was no good objection to the union between these two bodies. But they find it necessary to say besides, that the Synod having so held and decided, it was not competent for one of the congregations of the United Secession to controvert the Synod's judgment. If they do not say this, the plea is altogether incon- sequential. But here the difficulty to which I have already alluded at once arises, which did not, as far as I am aware, occur in any of the cases of this kind which have hitherto been discussed in this Court, — in the fact, that the pursuers do not, and cannot, allege that the defenders have main- tained any doctrines or religious principles different from those which constituted the original doctrines and principles of the Secession Church. The pursuers, a minority of the members of that congregation, do not, ajid cannot make any such allegation. Confessedly, the defenders and the congregation generally remained exactly as they had been. There was no rupture in the congregation itself. The division is singly on the proposal of union with the Eelief ; and it is the pursuers, and not the defenders, who desired that that change in the constitution of the congregation should take place. The defenders, in the debate, at last joined issue with the pursuers on the question. Whether there was, or was not, a difference in religious principle between the Secession Church and the Eelief? and made important statements to shew that there was, from the beginning, and to the end, a real difference. And, as far as it is necessary and we are bound to judge of such a matter, I should say that they were successful in those statements,' touching the very foundation of the plea of the pursuers. But it has throughout occurred to me that this case might be resolved by a much shorter process. The congregation of Kirkintilloch, as a part of the United Secession Church, stood exactly as it had been, at least since the union of the Burgher and Antiburgher branches in 1820, and it is manifest that the only movement for a change was made by the pur- suers and the Synod. The union which had taken place in 1820 was a natural measure, because the difference between the Burghers and Anti- burghers had been removed by the abolition of the Burgess oath ; and, at any rate, it took place by consent only, that is, by contract ; and as all DECIDED IN THE COUET OF SESSION. 257 the parties in this cause consented to it, it is not competent to any one to say a word against it. It had constituted a'completed contract for twenty- five years, and all question ahout it was past and over. But the proposal of a union between that United Secession Church and the Eelief Church was a very different matter. To that, the defenders, as a congregation, never gave any consent ; and it was calcu- lated to make a very great change in the ecclesiastical condition of any single congregation, bringing the members into connection with numerous Presbyteries and Kirk-sessions, from which they had hitherto been entirely separated, and essentially altering the constitution of the Synod with which they had hitherto been connected. The Relief Church was an extensive body, which had hitherto stood, whatever were its principles, entirely distinct from the United Secession Church. It was, in its origin, altogether separate from the Church of the original Secession from the Establishment, and its members had hitherto at least professed to hold opinions very different from those of the original Seceders. But the essential point is, that however the members of these two Churches might agree in some points, or differ in others, they were two distinct and separate bodies of extensive connection, standing apart from one another, — each having its own system of superior and subordinate jurisdictions, and each maintaining its own status against the other, as well as against the Established Church. This is the broad fact. They both stood on contract, but on separate contracts, which bound the members severally and respectively to one another. When, therefore, a union of two such bodies was proposed, whatever else it was, it was decidedly an essential change in the constitution of either Church, and an essential change in the condition of any one congregation. When we look, then, to a title of property standing in trust for the members of a congregation of the United Secession Church, in connection for the time with the existing Synod of that Church, it is impossible to dispute that the measure of a union generally with another Church so entirely distinct as that of the Relief, necessarily imported an essential change on the con- dition of that congregation, and a direct departure by those who pro- moted it from the Church state of the congregation as it was. This entire separation, as matter of fact, of the Secession Church from the Relief, which had subsisted from the very foundation of the Relief, was surely sufficient to presume that there was some essential difference between them. It was not even like the case of the Burghers and Anti- burghers, who were both branches of the same original Secession. The Relief was perfectly different, the founders of it having left the Established Church (not admitting themselves to be Seceders from it) at a much later period, and had not hitherto, during two-thirds of a century, entered a 258 LEADING ECCLESIASTICAL CASES into any connection with the Secession Church. Now, I ask this question, — There being such a marked separation between the United Secession Church and the extensive body of the Belief, were the members of the Kirkintilloch congregation, when a union between these two bodies was proposed, bound even to enquire what the religious tenets or ecclesi- astical opinions of the Belief Church were so as to know how far they agreed with their own, or how far they differed from them ] I apprehend that they were not ; and that it was enough for enabling them to determine whether to consent, or to refuse to consent, to the union, that the Belief was an entirely different and separate Church of dissenters, with whom the Secession Church had hitherto had no connection. That there had been a difference between them and the Secession, and that there was still a difference which had hitherto been sufficient to keep them distinct from one another, under different constitutions, was, in my opinion, sufficient to regulate the judgment of a particular congregation, and to entitle them to withhold their consent to any such union. But, to come a little closer to the point in this view of the case, the question is. Whether the Synod of the United Secession Church had power, by its contract relation to the congregation of Kirkintilloch, to compel that congregation to go along with them in a union with the Belief? Any power which the Synod had over this congregation, in regard to its civil rights, is of a very doubtful character. I have indicated already a very serious doubt, whether the title is such as to have pre- vented the congregation from breaking the connection with the Synod, without assigning any reason at all. Eor the title is in the congregation, and its connection with the Synod is only described by the term, "presently in connection" with the United Secession Church. And it might even be doubted, whether, if the congregation had determined to form a different connection, there was any thing to prevent such a measure in respect of the title of property. But that is not the case here. The fair case, even thus taking it, is, that the congregation remain exactly as they were ; but the Synod, concurring with a minority of the congrega- tion, choose to break that connection ; how is the title for the congrega- tion then to stand 1 Is it not stiU a trust for the members of the con- gregation, commonly called Seceders?. But though I think it a very doubtful matter whether, in any view, a different result could be obtained, this is still not the case in hand. For the case is, that the minority with the Synod, forming a union with a different Church, must maintain that the Synod had power to force the majority of the congregation into that union, or into a surrender of the property, to be constituted in a trust for the United Presbyterian Church, or a congregation to be in connection with them. But I see no principle on which this can possibly be held. DECIDED IN THE COURT OF SESSION. 259 It is rather insinuated than directly maintained, that the Synod had such power, because it had been acknowledged as the superior Church judicatory of the United Secession Church. I entirely dissent from that principle as a matter of law. "We must remember that this is a ease of contract simply. And I know of no principle on which a congregation, possessing property by a precise title, can be held, merely because they have for a time placed themselves, of their own free will, under the spiritual jurisdiction of a particular Church judicatory, to have thereby given power to that judicatory to dispose of their property at their dis- cretion, or to require the congregation to go into a particular measure of _ new contract or arrangement, under pain of forfeiture of their civil estate. I deny it altogether. Though this congregation was by contract, for the time at least, subject to the jurisdiction of the Synod in spiritual matters which is all that can be implied in the term subordinate, frequently re- peated by the pursuers, it does not follow that they had rendered them- selves subordinate to the Synod in their patrimonial rights. The terms of the title give no property in the church to the Presbytery or the Synod. There may have been cases in which the terms of the trust might imply something like this. But it is not the case here — the trust being for the members of the congregation simply. But then the point returns. The measure proposed to the congrega- tion, unquestionably importing a change in their status as a congregation, were they legally bound to accede to it under pain of forfeiture of their property ? Or, to put it as far as the pursuers can possibly state it, were they bound to accede to the measure under pain of forfeiture, unless they should undertake and be able to shew that there were differences in religious principle of vital importance between the Belief Church and the Secession Church ? This is truly the point to which the pursuers desire to drive the question. But I apprehend that it is most erroneous, and that the defenders are not bound to undertake any such onus ; though the very best of the case of the pursuers depends on their making out the existence of such an obligation lying on the defenders. It is truly enough, in my opinion, that it was a real and substantial change from their previous status that was proposed, and that the congregation had seen cause to refuse to consent to it. It will not do, in my humble judgment, to say that the Secession Synod were merely making an extension of the Secession Church, by adding certain congregations to it. The reality of the case must be faced. This is not the state of it. The summons itself bears, that what is now called the United Presbyterian Church consists of two distinct Churches — the United Secession Church and the Belief Church — each consisting of many Presbyteries and separate Synods. The pursuers wiU not say 260 LEADING ECCLESIASTICAL CASES that this is merely an extension of the Eelief Church, and that they are become members of the Eelief. If they did say it, it would not be true. On the one side, there is no proposal by any particular congregation of the Eelief Church to become simply members of the United Secession Church ; and on the other, there is no proposal by the members of par- ticular congregations of the United Secession Church to become members of the Eelief Church. This is not the thing proposed or done. What is proposed and done is, that the whole Eglief Church and the whole Secession Church shall be united •per aversionem, upon a treaty as to the terms of this union. The very necessity of a treaty between the two Synods demonstrates that it is not a case of extension by the one or the other, to be accomplished in its own will. And when we look at what the treaty was, and the conclusion in which it terminated, it is apparent that each party retained all its own principles, and all its own practice — the very making of which reservation implied the existence of some difference between them, which could only be adjusted by a specific treaty. Therefore I am of opinion, without enquiry as to the extent of the difference in principle between the United Secession Church and the Eelief Church, that, as the act of union, or the serious entertaining of a treaty for it, imported a change in the constitution of this congregation, there was no competency in the Synod of the Secession Church to force this congregation into such a union, or to infer a forfeiture of the property by their refusal to go into it. The defenders, however, being strongly challenged, have not refused to meet the pursuers on the question, whether there was an essential difference in principle between the United Secession Church and the Eelief Church. If this be necessary to the solution of the case, it opens a very important question. The pursuers seemed scarcely to deny the relevancy of the plea, that, if there was a substantial difference, the defenders were not bound to accede to the union. But they still seemed at least to imply in their argument (and they have assumed it in the summons), that the judgment of the Synod should be considered as con- clusive on this question of fact. This renders it necessary, in so far as the case may, in any respect, depend on it, to look back to the ruling authorities in cases of this kind. And I think that I may as well state at once, that my conclusion, after studying those authorities, is this, — that in such questions of property arising between the members of a congregation, originating in supposed differences of religious principle, the civil right is not to be determined by ^herence to the Synod or other superior court of the dissenting body, or by departure or separation from such Synod or other court ; but by the question, whether the one party or the other is adhering to the DECIDED IN THE COUET OF SESSION. 261 original principles on which the society was formed, or the congregation founded. The leading and ruling case is, undouhtedly, that of Aikman against Craigdallie (1 Dow, p. 1, etc. ; 2 Bligh, 1820, p. 529, etc.), as de- cided by the House of Lords. But it is the more necessary to look carefully into the principles which ruled that case, because I apprehend that the true principle of that case has sometimes been misunderstood. When that cause came into Court, it was at first thought that the right to the property was vested in the majority in point of interest, of the persons who had contributed for purchasing the ground, building the house, etc. An interlocutor to that effect was pronounced, on report, by Lord Armadale. But, on a reclaiming petition, the Court altered that interlocutor, and found that the property is held in trust for a society of persons who contributed their money, etc., but with this quali- fication — " such persons always by themselves, or along with others jointly with them, forming a congregation of Christians, continuing in communion with, and subject to the ecclesiastical discipline of, a body of dissenting Protestants, calling themselves the Associate Presbytery and Synod of Burgher Seceders.'' This was the judgment of the Court ; and the reporter in the House of Lords describes it on the margin as an interlocutor " in favour of those abandoning the original principles of the sect, but adhering to the Synod." Lord Eldon, on an appeal, decided that cause ; and nothing is clearer to my mind than that Lord Eldon laid down the very opposite principle, and made a remit for the purpose of extricating the cause on the law so laid down. His Lordship described the principle of the interlocutor thus — " But if the judges below still adhere to the principle, it was this prin- ciple, that because in 1737 a society then agreeing in their religious opinions adhered to a Presbytery or Synod, then holding the same opin- ions with themselves, the property belonging to that society should be held in trust, not for those who adhered to their original principles, but in trust for those who adhered indeed to the Synod, but who did not adhere to their original principles ; that was a proposition very difficult to be maintained in law. But if the Court below should still adhere to that principle, then the objection arose, how could the principle be applied in practice ? It was true the Court could not take notice of religious opinions, with a view to decide whether they were right or wrong ; but it might notice them as facts, pointing out the ownership of property." After some further reasoning on the point, he said — " If it were distinctly intended that the Synod should direct the use of the property, that ought to have been matter of contract, and then the Court might act upon it ; but there must be evidence of such a contract, and here he could find none." He, therefore, proposed to remit the cause with two findings. Accord- 262 LEADING ECCLESIASTICAL CASES ingly it was remitted with very precise findings, importing that it appeared sufficiently, as matter of fact, that the ground was purchased, and was to be used for reUgious worship, "by a number of persons agreeing at the time in their religious opinions and persuasions, and therefore intending to continue in communion with each other ;" and that the society had acceded to a body called the Associate Synod j but that it did not appear, as matter of fact, " for what purpose it was intended at the time such purchase and erections were made, or at the time such accession took place, that the ground and buildings should be used and enjoyed, in case the whole body of persons using and enjoying the same should change their religious principles and persuasions, or if, in conse- quence of the adherence of some such persons to their original religious principles and persuasions, and the non-adherence of others thereto, such persons should cease to agree in their original principles and persuasions, and should cease to continue in communion with each other, and should cease, either as to the whole body, or as to any part of the members, etc., to adhere to the Associate Synod." With these findings the cause was remitted for further consideration. There is no ambiguity in the principles on which Lord Eldon made this remit. Under the remit the Court ordered a condescendence, with a view to the ascertainment of the matters of fact, whether there was a real difference in the religious principles or not ; and afterwards pro- nounced an interlocutor, the result of which was, that the Court found that the pursuers "have failed to condescend upon any acts done or opinions professed by the Associate Synod, or by the defenders, from which this Court, as far as they are capable of understanding the subject, can infer, much less find, that the defenders have deviated from the original principles and standards of the Associate Presbytery and Synod. Further find, that the pursuers have failed to render intelligible to the Court on what ground it is that they aver that there does exist at this moment any real difference between their principles and those of the defenders," etc. ; and therefore found it unnecessary to enter into the enquiries which had been directed by the House of Lords, under the supposition that the defenders had departed from the original standards and principles of the association. Therefore, and as the defenders in that case who concurred with the Synod had the possession, the Court sustained the defences, and assoilzied the defenders. In reviewing that judgment. Lord Eldon repeated the prin- ciple which he had before laid down ; but at last, though under very great difficulty, came to the conclusion, that as the Court of Session could not ' understand the difference in religious opinions averred (though reading the explanation of that aUeged difference in a very able appeal case, I could not have thought it very difficult to understand, at least what the DECIDED IN THE COUET OF SESSION. 263 difference intended as matter of averment was), neither could he, and so atfirmed the judgment. It is quite clear that, in the whole scope of this judgment, Lord Eldon distinctly adhered to the principle at first explicitly laid down hy him, that the question depended not on adherence to the Synod, though incidentally in that case the defenders did adhere to the Synod, hut on adherence to the original principles of the association or departure from them. And he affirmed the judgment simply on the matter of fact, that the appellants had failed to shew, in an intelligible manner that the defenders had departed from the original principles ; and, on that footing only, he decided in favour of the defenders and the Synod, as the parties in possession. And if there could have been any doubt as to the principle of Lord Eldon's judgment, it was distinctly declared by himself in a case in the Court of Chancery, in which he said — " I take it to be now settled by a case in the House of Lords, on appeal from Scotland, that the chapel must remaki devoted to the doctrine originally agreed on" — (Eolgin v. Wontner, 2 Jacob and "Walker, 247). The law, therefore, in point of principle, is, that if the majority of the congregation adhere, in point of fact, to the original principles, the property must belong to them, whatever the Synod may have done. And in the present case, as it is not even alleged that the defenders, who are in pos- session'of the property, have in any manner departed from the original principles, there seems to be very little difficulty in extricating the cause on principle. It appears to me, that in all the cases which have since occurred, the same principle has been observed. It is true that in the case of Galbraith V. Smith, in the decision of the question of possession, March 10, 1837, Lord Meadowbank delivered a long judgment, from which, as reported, it might be thought that the principle laid down by Lord Eldon was different, as making the property to depend on adherence to the Synod. Probably that was not intended ; because, in the case of Craigdallie, in the ultimate judgment, it was found that the original religious principle and the doctrine held by the Synod must be held to coincide. But, at any rate, the doctrine of law delivered by Lord Eldon is quite clear and explicit. And the opinion of Lord Meadowbank, in the case of Campbeltown, which differed from that of the Lord Ordinary, was not adopted by the majority of the Court. The Court indeed ultimately decided that cause on the merits, against Smith and the Campbeltown Congregation. But they so decided it on the very same principle which had been held by Lord Eldon, being of opinion, on the facts, that the Synod of Eelief had not departed from the original principles of the Eelief Church, or at least that Smith 204 LEADING ECCLESIASTICAL CASES and others had failed to shew that there was such a departure. In fact, Mr. Smith and his adherents were desirous of joining the Established Church, which he and some of them ultimately did. The principle, however, was clearly stated hy Lord Medwyn, — " If we can find out what were the original principles of those who originally attended the church or chapel, we must hold the building appropriated to the use of the persons who adhered to the same religious principles, though these be a minority of the congregation." — (Fac. Coll., June 1839.) The case of M'lntyreu. M'Crie, Eeb. 24, 1809, occurred before the first judgment of the House of Lords in the case of Craigdallie, Dec. 21, 1812. And the decision of it, proceeding on the supposition that the first judg- ment of this Court in Craigdallie established a sound principle, was naturally regulated by adherence to the Synod. But whether that cause could have been decided in the same way, on better principles, or not, it is clear that the rule adopted in the judgment, which embodies that principle, is diametrically opposed to the law laid down by Lord Eldon. The rule of law, therefore, being thus clear, the remaining question is merely a question of fact, — have the pursuers made any case on which the Court can decide, that the defenders, as the parties here in possession, have departed from the original principles of the Secession Church ? If no such case is established, or even stated relevantly in averment, the adherence or non-adherence of the defenders to the Associate Synod of the Secession Church, or still less their adherence or non-adherence to the new constitution of the Synod of the United Presbyterian Church, is whoUy irrelevant and immaterial. The pursuers, in reality, endeavoured to shift the question, by assuming an erroneous hypothesis concerning the principle of the case of Craigdallie, and relying on the case of M'Intyre, as if it stood on sound law, and then turning the question into an entirely different point, whether the Synod, in the present case, have departed from the original principles, by uniting with a body who held dijBferent principles from the Secession Church ? I own I think this an incoherent and incompetent endeavour to change and shift the, true state of the case. But in this way we are drawn into a discussion as to the principles on which the Secession Church, on the one hand, and the Belief Church, on the other, were originally founded. I do not intend to enter particularly into the question, how far these two classes of Dissenters from the Establishment differed from one another, or from the Established Church. It is quite clear to my mind that their grounds of disagreement with the Church were different ; for, otherwise, no reason can be assigned why the Belief ministers, when they left the church, should not have at once united with the Secession Presbytery already established. But it is clear that they were different. For though DECIDED IN THE COUET OF SESSION. 265 both complained of the law of patronage and of the way in which ft was enforced, the Seceders took ground which I do not find to have been ever adopted by the Eelief Church. It was stated in the Hearing, that Ebenezer Erskine, and the other Seceders had differed from the Church not on patronage only, but on some points of doctrine. If by doctrine were meant what we should probably understand by that term, perhaps the statement may not be correct. But the Seceders made things to be points of doctrine on which they did express difference in the most vehement terms. They made it a point of doctrine that no one should be allowed to continue in the Chuich, however legally inducted, if he had not been at first jntroduced according to their highest rule of popular election ; and hence, they held that none of the Church Courts were legally constituted. They held it to be a departure from doctrine if ministers were simply silent on what they treated as corruptions of the Church. I take this view of the matter from an authoritative instrument, namely, an Act of the Associate Presbytery, May 10, 1739, which was formally transmitted to the General Assembly as their answer to a libel which had been raised against them, and which contains many other things having no relation to the law of patronage. Amongst others, the reading of a proclamation in the case of John Porteous, and the omission of the Church Courts to inflict censure on account of it. These things are all expressed in the most extra- vagant terms. In general, it may be said that it was on account of what they called relaxation of discipline, but based on an assumed departure from doctrine, that their quarrel with the Church was principally founded. I cannot discover that the Eelief Church did, at any time, carry their schism to this height. The immediate cause of their separation was simply the refusal of Mr. Gillespie and other ministers to obey the orders of the Church Courts, by assisting in the settlement of ministers who had not been appointed according to their notions on the subject of patronage and calls. And although, in the case of Campbeltown, the Court did not hold it to be established that the Eelief Church had held it as a point of doctrine that there was nothing unlawful in a Church established and endowed by the State, and the judgment rather implied the contrary, there is no doubt that many of the members of the Eelief Church had held very different views of that point from the original authors of the Secession Church. But perhaps it is the most marked difference between these two classes of Dissenters, that on the point of communion with the members of other Churches the Eelief held much more liberal opinions than the Secession did ; and that difference is, I presume, one of the things which is reserved to each of them in the late Apt of Union. But without going into any 266 LEADING ECCLESIASTICAL CASES minute discussion of the subject, I think it has heen sufficiently shewn that there were material differences in the original principle of these two Churches, on which very vehement controversies had been carried on between them. Whether all the members of each of them still hold all those points of difference, may perhaps be doubtful ; because this Union has been effected on a principle which purposely leaves this matter alto- gether in obscurity. The treaty does not come to the point of defining what the doctrines are which are to be held by the two Churches united, except only that they both hold the doctrines of the Confession of Faith, while they may put very different constructions on some of the most important of those articles. It therefore seems ^o me to have been sufficient for the defenders to have shewn that there were, at certain fixed times, very important differences between them, and that no authoritative settle- ment had been made concerning those specific points of difference. We are not here in the same situation as those were who had formed members of an association founded on principles which they had aU. acknowledged at first, and where they had split or divided concerning the import or right construction of those principles. Here there is a marked line of separation in two distinct Churches or Associations ; and unless the pursuers have made it perfectly clear, that the differences which once existed have been altogether removed, the defenders are entitled to say that they must be taken as still existing. I am very far from being satisfied that the pursuers have made this clear ; and at all events I think that there is enough left of substantial and permanent difference to justify the defenders, even if they were otherwise under any obligation to unite, in holding back from participation in an Act which could only be justified by a clearly ascertained identity of principle. If it is thus to be inferred that the defenders have, on just and fair grounds, refused to concur in this union with the Ilelief, and to refuse to acknowledge the Synod of the United Presbyterian Church as being in any sense identical with the Synod of the United Secession Church, it may now be enquired, what title these pursuers, as members of that United Presbyterian Church, and in connection with the Synod of that Church, can have to insist for a conveyance of the heritable subjects, which are held in trust solely for the members of the congregation which was in connection with the United Secession Church, and which has no connec- tion, except that recently formed, with the newly constituted Synod. The pursuers cannot escape from this point of title, by running to the other point of argument, on the idea that the defenders had left the Secession Church. That is quite a different question. But the defenders are in possession of the property, and the pursuers have to evict it from them. Can they so evict it, when, by the shewing of their own summons, they DECIDED IN THE COURT OF SESSION. 267 would not constitute the members of a congregation in connection with the United Secession Church, even if it were true that the defenders had separated from the Synod before the union took place 1 Still, the title of property would remain as it was, and it could not be claimed by the pur- suers, seeing that they are in no sense the parties for whom the trust was constituted and held. The pursuers seem to have overlooked this diffi- culty in their case. By the proceedings of the Synod, it has been rendered impossible for the defenders, at present, to be in connection with the Synod of the United Secession Church, because that Synod, and that Church are, qua such, extinguished by the act of the pursuers. But the defenders hold the property as it was before, and have done no act by which it can be forfeited to any one, and least of all to the pursuers, who have assumed a character which excludes them from it. Consequently, wherever the true title of property may be, it is not in the pursuers, and they can have no right to insist in such an action. Let us see, then, on what ground the pursuers expect to obviate both the serious objection to their case on the merits, and the equally serious objection to their title in the action. 2. Founding on the miautes of the Synod, they say that Dr. Marshall had left the Secession Church, and ceased to be a member of it, before any union with the Eelief had been effected ; and that the defenders, as his congregation, had adhered to him. If this plea had not been treated so seriously as it has been, I should have thought that it required very little consideration. But, as it is, it seems to me to be entirely destitute of any solid foundation. In the first place, what took place in the Synod was by Dr. Marshall alone. The congregation (who are chiefly to be considered in this question of property) never appeared iu the Synod at all, and were never called on to appear. The pursuers profess to meet this statement, not by any dis- tinct averment on their own part, but by referring to the 10th article of the statement for the defenders in the record — bearing that, after the course taken by Dr. Marshall was intimated to his congregation, a meet- ing of that body was held, at which they unanimously resolved to adhere to Dr. Marshall therein, adding, that neither he nor they held any tenets different from the Secession Church. What it was precisely that was done at the meeting of the congregation is not explained. The pursuers have not called for the minutes ; and they, in fact, state that they " know nothing of the meeting here referred to," and that "as to the aUeged tenets now held by Dr. Marshall and his congregation, the pursuers know nothing. But he and they have withdrawn from the ecclesiastical body to which they formerly belonged." In this last statement the pursuers are going on the erroneous view of the law which I have already explained. 268 LEADING ECCLESIASTICAL CASES as if the question of property depended on adherence to the Synod and not on adherence to the principles. But so far are they from alleging that the defenders have departed from the tenets of the Secession Church, that they profess to know nothing of what tenets the defenders hold, as if that were altogether immaterial. I desire that this may he particularly marked, as being the only case in the record on the fact of the principles held. But in regard to the particular question here in hand, they say that they know nothing of any meeting of the congregation, or of any resolutions adopted by such meeting. And yet they imagine that they have a case against this congregation as lawfully extruded from the Secession Church, to the effect of leaving the property to the pursuers, professing to be mem- bers of that very congregation. Independent of anything else, it appears to me that a more illegal and incompetent proceeding never took place in any society professing to be guided by rules or principles of any kind. But the real state of the case is very clear, even if this difficulty were overcome. The time and circumstances in which Dr. Marshall tendered his protest must be attended to, and then the nature of that protest must be estimated according to those circumstances. It is stated in the sum- mons, that, though Dr. Marshall was in a theological controversy -with some of his brethren of the Synod some years before, he had taken no steps in consequence of the decision against him, and still remained in the Church and Synod as before. The Synod were negotiating and deliberating concerning a union with the Relief Church, and had actually before them a plan and articles for the basis of such a union. They had resolved themselves into a committee on that, and on that alone. In that committee. Dr. Marshall had made a motion in regard to what he thought a preliminary step towards any such union. It seems to me to be of no manner of importance what might be the merits of that motion, or the subject of it, which Dr, Marshall considered as preliminary. It was only in deliberation, as the basis of the proposed union, that any motion was made by Dr. Marshall ; and, therefore, it could only be with reference to that, that any other proceeding could take place. He made a preliminary objection to going on with the treaty of union ; and, what- ever might be his reasons for that objection, it could be nothing else but an objection to the scheme of union. The Synod thought fit to enter on their minutes something as declared by Dr. Marshall. That is not evidence. But it is very imma- terial; for he referred to a written protest, which was entered on the minutes. And what is that protest? What did he protest against? What could he protest against, but the union with the Eelief then in discussion ? He states, no doubt, some reasons for objecting to the further progress in the scheme. But the protest bears, "And whereas DECIDED IN THE COURT OP SESSION. 269 still cherisliing the same headstrong spirit, she (the Secession Church) is now taking measures to form a union with another religious body, by which she wUl leave altogether her former position, and probably drop her very name, without having given proof of the smallest repentance." On this narrative, he declares, " in his own name, and in the name of all who shall adhere to him, that he can no longer walk with her in the bonds of fellowship, till she shall retrace her steps," etc. ; but further declares that, "in the meanwhile, he remains exactly as he was, having made no change of any kind, occupying the position he has hitherto occupied — maintaining the doctrines he has hitherto maintained — claiming and asserting the various rights and privileges of a civil and of a sacred nature which have belonged to him as a member and minister of the United Secession Church, and holding out the right hand of fellowship " to all who profess an honest adherence to the Westminster Confession of Faith. Here is a protest against any further steps being taken in the project of union with the Eel^ef, till something else should happen. "What might be the nature of that preliminary condition is surely very little material. The protest is against proceeding in the treaty of union, and nothing else ; and Dr. Marshall says that if the Synod are to proceed with the treaty of union without that prelimiaary condition being first fulfilled, he can walk no longer with them — that is, he cannot concur in considering the basis of union, or acting with the Synod in the constitu- tion of it. This is the substance of the matter. And then the committee, without adopting any other measure whatever — without calling either Dr. Marshall or the congregation to appear before the Synod — at once recom- mend to the Synod, what was never remitted to them to consider, to declare that Dr. Marshall is no longer a minister or member of this Church. There is in this not one word about the congregation ; but at last the Moderator resumes the chair, and the Synod, in general terms, adopt the recommendations of the committee. There is no sentence of any kind, and no repetition even of what was recommended. And then, two days after, they resolve to send a member to Kirkintilloch "to intimate the sentence of the Synod in the case of Dr. Marshall, and declare his church vacant." The congregation resisted this measure ; and what was intimated does not appear. But it is certain that there was no sentence which could be intimated. Par less was any step taken by which the rights of the congregation or the Church could by possi- bility be forfeited. According to any knowledge I ever had of correct procedure in Presbyterian Church Courts, never was anything more irregular, incompetent, or inconsequential. In the meantime, the Synod went on with their deliberations on the treaty of union, anS at last a basis was settled, with which the Secession 270 LEADING ECCLESIASTICAL CASES Synod, on the one hand, and the Eelief Synod, on the other, declared themselves satisfied. The matter was truly concluded. And it is to be observed that, though there were a good many sederunts, it was all done at one time. It was but one meeting of the Synods respectively, though carried on by adjournment from hour to hour, or from day to day, until both parties were satisfied. From the constitution of these bodies nothing more could be done till the time should arrive for the next meeting of these Synods, which was not to •be till May following. But the whole matter was truly settled in the various adjourned sederunts in October 1846. How, then, had even Dr. Marshall ceased to be a member of the Secession Church, before the resolution to unite with the Eelief was adopted ? He was in the meeting of the Synod in October. He was in the committee met to deliberate on the proposed union. He protested against it ; and he refused to proceed with the Synod in that project, no matter for what reasons, and he took no further share in the proceedings of the Synod. But I now assume that neither the Synod nor the other congregations of the Secession Church, and far less a minority of the congregation, had power to force Dr. Marshall or his congregation to concur in such a union. I now assume this to be established. And if it be so, was Dr. Marshall not entitled to protest against the Synod proceeding in the union ; and having so protested, to refuse to walk longer with them, seeing that they were in the act of forming a union which was to have the effect of actually extinguishing the United Secession Church, as he told them expressly in the protest itself ? If the law of the case is that there was no power to force this congregation into such a union, I look upon it as a merely colourable device in argument to say that they could do it, merely by taking advantage of the circumstance that Dr. Marshall, seeing their determination, refused to walk longer with them, and because the Synod, or their committee, on a different matter, had then, against all the forms of Church procedure that were ever heard of, thought fit to declare that he had thereby ceased altogether to be a member of the Secession Church. The case was put, that these Synods had, after all, not gone on to complete the union. I say that, in that case, Dr. Marshall would have been entitled to withdraw his protest, or that it would eo ipse have fallen and ceased to exist ; and, at any rate, there would have been no pretence whatever on which the property could have been evicted from his con- gregation. But it is not the case. The agreement for union was really completed in October 1846, and it could be nothing but matter of agree- ment. The forms afterwards adopted might be necessary or not necessary. DECIDED IN THE COURT OF SESSION. 271 But I apprehend that no forms which they could observe could enable them to drag after them Dr. Marshall and his congregation, or to evict the property which his congregation held. It has been observed that, in these private Associate Churches, it is not necessary or customary to pronounce a sentence of deposition, when an occasion has arisen for declaring a minister to be no longer a member of the Church. I do not say that deposition is always necessary, though I believe it has frequently taken place. Neither is it necessary in the Established Church ; for there is another form which has been frequently followed. But wherever emything is to depend on an effectual exclusion of the minister from the Church, there must be a sentence regularly pro- nounced, either with the party present, or after he has been duly called to the bar of the court, and refused to appear. Mere withdrawal by him is not sufficient, if the principles of Presbyterian Church government are at all regarded. The pursuers must know this well ; but nothing of the kind had taken place here. But the question here relates to the property of the congregation. The Synod seem to have imagined that they might deal with the church as they liked, and had led the pursuers to believe that they had nothing to do but take possession of it. But I apprehend that this Court, in dealing with the civil rights of this congregation, must see something definite and precise, whereby it can be held that the congregation had effectually left the Secession Church before the union with the Belief, and independent of that measure, or the resolution to enter on it. And, after all, I must return to the first and fundamental proposition in the cause, that the defenders have done nothing on which it can be even alleged that they have departed from the original principles of the United Secession Church. They stand exactly as they have ever stood, and as they stood before this project of union had been tabled at all. And then the matter is clear in law, that their adherence to the Synod in the change projected, or their departure from it, is of no manner of consequence. They have not changed their principles, whether the Synod have changed theirs or not ; and the property is vested in them, and not in the Synod, or in the minority of persons who may call them- selves members of the congregation. I think, therefore, that the defenders ought to be assoilzied from the conclusions of this action. I wish to say, before concluding, that, while I have studiously avoided saying anything of the doctrinal controversy in which Dr. Marshall had been engaged with some of the members of the Synod, I think, with your Lordship, that in some eventual results there might be a question remain- ing behind on that subject, on which I should think reserve necessary. 272 LEADING ECCLESIASTICAL CASES LoED CocKBURN. — I am of opinion that the objection taken to Dr. Marshall individually, is well founded. I think that he had resigned his connection with the Associate Synod several months before the union took place ; and that after this he has no more right to resist the union, or its consequences, than if he had retired twenty years before, or had never belonged to the body. But this is of very Httle importance, because I can find no ground for extending this objection to the other defenders. They avow, no doubt, that they adhere to him ; but, as it appears to me, only in his opinions. They did not, prior to the union, imitate him by withdrawing from the society, nor did the society declare that they had done so. On the con- trary their plea is, that they have all along cleaved to it ; but that it, by its conduct, has deserted them and its former self. We have still parties before us,- therefore, entitled to maintain the defences. Now I conceive it to be indisputably certain that the property in question was devoted to the uses of a particular religious community, described at the time as the United Associate Synod. It was not held for behoof of certain individuals, without reference to religious profession, but as combined into a congregation holding certain tenets, and in com- munion with a certain ecclesiastical body. This body was composed, in 1820, of the then United Burghers and Antiburghers, and then assumed a reformed shape and name, to which, it is admitted by the defenders, that they tUl lately belonged. And the very titles subsequent to 1820, viz., in 1832 and 1836, are expressly taken in favour of certain trustees " for behoof of the members of the Associated Congregation of Kirkin- tilloch, commonly called Seceders, and presently in connection with the United Secession Church." Presently in connection, I consider as taxative, and not as merely demonstrative. The titles import, agreeably to the truth, that to their primitive principles of 1765, when they began, they had added adherence to the Associate Synod. Not adherence to this mere term, or to any community that might take this name — nor to what was then the Associate Synod, if it should change its principles — but to the particular body that was then so called, so long as, by adherence to its principles, it maintained its identity. That this was a superinduced part of their original creed seems to me to be implied in the very terms of their titles ; and in the admitted fact, that for the last thirty years they have been a part of this Synod. This is at least prima facie evidence of their amalgamation with this body. I cannot believe that this was only a temporary connection, without positive evidence of so strange a thing as an intended temporary connection between two sects. But there is not a vestige of such evidence. We know nothing of the condi- tions of the junction that took place in 1820. I have the strongest DECIDED IN THE COUET OF SESSION. 273 conviction that if the matter was enquired into we would find that nothing but a complete incorporation was then in the view of either party. This, indeed, is plainly the defenders' own view in setting forth the de- fence in this action. It is distinctly admitted by them, both in their defences (second paragraph), and in their statement (article 2d), that it was only a,s a congregation in communion with the Associate Synod that the property was held for their behoof. They differ as to which of the parties has remained steadfast to the principles and authority of the sect ; but there is not, and on this record there cannot be, any dispute that the property cannot be claimed by any of the congregation who have renounced what was the Associate Synod, against any who adhere to it. Let either of the parties avow that they have changed their opinions in this respest, will not this of itself enable us at once to decide the cause ? If this be not the basis of the whole case I really do not know what the discussion has been about. It has been said that there is no charge of having abandoned their principles, made against the defenders. But this is a great and vital mistake. They are not charged with abandoning the principles which they held in 1765, before the Associate Synod arose. But if it be true that they subsequently became a permanent part of this Synod, and adopted allegiance to it as a supplementary principle, then they are not only charged with dereliction of principle, but this is the whole case against them. After continuing in admitted communion with the Synod from 1820 till 1847, the EeHef and the Synod joined ; and the defenders say that this confluence alone entitles them to keep the property, although they admit that their communion has ceased. And on what ground do they say this ? Not because they never, and with a permanent ^intention, joined the Synod, but solely because the Synod, by absorbing the Belief, has ceased to he the religious community with which they united them- selves. Hence this has been the great, and indeed nearly the sole, subject of discussion in this cause. In judging of the validity of this plea it is indispensable that we con- sider its different grounds separately, and not lose the merit or demerit of each point by mixing the whole into one mass. There are none of the points on which the defenders rely upon which I have any doubt, except one. In ^Q first place, they object that the existing Synod has no right to compel them, who were adherents of the Associate Synod, to join what the defenders call the new body. I concur in this ; but I do not see its application. Because neither the new nor the old body is attempting to compel any one to join them. The Synod is not in this process at all. It is an action by certain individual members of the congregation to vindi- T 274 , LEADING ECCLESIASTICAL CASES cate property, whioh they allege belongs to them ; and they are trying to vindicate it, quite independently of the Synod ;— which is standing aside, though probably surveying the contest, and not uninterested in its result. Even the pursuers are not trying to compel the defenders to join the Eelief They are only saying that they cannot renounce their princi- ples and yet keep this property. It is maintained, in the second place, that, independently of identity, or of repugnance of principles, they, the defenders, are liberated from their allegiance to the Synod by the mere fact of its union with the Eelief. I think this untenable. It seems odd in them to say that all union was repugnant to their ecclesiastical tenets, who admit that they themselves, who began as Burghers about 1765, united with their rivals the Antiburghers, and thus formed the Associate Synod, in 1820. Union — that is, the extension of what it thinks right — seems a necessary principle with every rational religious society. I never heard of any religious society indeed, whether rational or not, which adopts separation as so essential a principle that it shuts its gates against all converts. It is said that the junction with the Eelief let a host of new Congregations and Presbyteries into the Synod. And why not, if there was no sacrifice of principle ? The defenders say, that they never subjected themselves to Belief Presbyteries. And they are not asked to do so now. They are only asked to continue under the jurisdiction of the Presbyteries of the Associate Synod, though these may be multiplied, and though some of them may formerly have been of the Eelief, Undoubtedly the Synod could have sucked in the whole Eelief — individuals, congregations, and Presbyteries, — one by one. Or if the Eelief community had come forward, and honestly abjured whatever it was that had till then kept it apart from the Synod, I see no legal objection to the Synod's receiving the whole body, arranged into presbyteries, at once. The defenders may not like the individuals, and may fear that both the brethren and the Presbyteries of the Eelief, will still be actuated by the principles and habits of their former sect. But this personal suspicion is no legal objection. If the Synod could have received every converted member of the Eelief individually, and thus taken the whole of them in at once, which I hold to be clear ; and if it could then have arranged them into Presbyteries corresponding with their Eelief ones, which I hold to be clear also, I cannot conceive how it could not receive them arranged into Presbyteries at once. It has been urged, or rather insinuated, in the third place, that the mere change of name entitles the defenders to secede, and yet to retain the property. We have had no authority for this, nor can I discover any in the law of Scotland. I can conceive an alteration of name so DECIDED. IN THE COUET OF SESSION. 275 marked, or so meant, that it indicates, or is naturally supposed to indicate, a change of principle or of object. But I am not aware that unestablished religious associations are bound to adhere to every letter of any title they may have ever assumed ; just as a mercantile company may be, where a partner insists upon it. It may certainly be made a question whether a proposed change be too great ; but I know no authority for the abstract and universal proposition, which is all that we have had as yet, that every change of name is, in all circumstances, fatal. The defenders have not said that there is anything in the nature of the alteration from the United Associate Synod to the United Presbyterian Synod that entitles them to break off. It is to any change that they object ; and this not to the extent of disliking the change, but of holding that it dissolves their connection. But I think that this wUl not do. But these are mere outposts. The defenders' main battle is, that the union with the Eelief implies an ahandonmeut of principle, or of system, by the Synod ; and so gross a one, that it destroys the identity of that body, and entitles the defenders to be considered as the persons for whose use the chapel was acquired. There can be no doubt of the rele- vancy of this plea. It is sanctioned by the whole of the well decided cases. Some of these depended on the fact ; and, so far, they can have little, or no, valuable application to the specialties of other questions. But they all recognise, and proceed upon, the great rule, that property held for a particular religious community, must, in the event of a schism, continue to be held by those who adhere to the principles and objects of the trust. This is the whole applicable matter that I can extract out of any of the cases, now of weight — that of Craigdallie particularly included, — which establishes the exact principle for which the pursuers contend. But what I doubt is the fact. In order to ascertain whether the junction involves a change of ecclesi- astical nature, two things are necessary, 1st, that we should know — and know exactly — what the peculiar principles of the Synod at the period of the union, or at least in 1820, were. And, 2d, what deviation from these principles is implied in the amalgamation with the Eelief. And in proving either of these facts, we must be guided chiefly, if not entirely^ by what are referred to in the proceedings of the two sects, as " the authorised documents of the respective bodies." These are their standards, or testimonies, or declarations, or acts, or other authentic evidence, which authoritatively records, or discloses, the principles of the two communities. But hitherto we have had a total absence of anything approaching to precision on these matters. There is no statement in the record, or any where, of the exact peculiarities that constitute the principles either of 276 LEADING ECCLESIASTICAL CASES the Synod or of the Eelief. Of course there is, and can he, no precise statement of the changes implied in the union of these two bodies. Almost the only repugnance between them that the record specifies is in their different views about the atonement; but this seems to have been forgotten in all the subsequent discussions. Then it turns upon differ- ences about patronage — next about theological doctrine — then about laxity of discipline, and so on. But the exact number of these alleged abhorrences has never been given ; their exact nature has never been explained ; and as to proof of their existence, we have not had a legal particle of it. We had the opinions of each community as represented by its opponents, or by its injudicious and unauthorised friends ; or we have been asked to gather it, as a matter of general history, from any of the sources, direct or indirect, from which general history flows. But I defy both parties to point out one single atom of admissible and authorita- tive evidence hitherto produced upon this subject. If there be nothing better than this to be obtained, we must proceed on what we can get ; and the matter will probably depend on where the burden of proving lies. But it is very improbable that the principles of two bodies, so large and so old, cannot have their essences proved by some simpler and weightier evidence. The discussion at the bar was conducted with great ability, and with much desultory learning. But the only result upon me was, that, at the end of it, I felt myseK seated in a thick fog. The defenders, to be sure, adopt one view, which they think excludes all further enqidry. The import of this view is, that the two bodies must have had material differences, otherwise they could not have kept so long asunder ; and that, in the very act of uniting, these are all kept up. I think this a mere misconstruction of certain passages in the minutes. The fact of their former separation is no conclusive evidence that that separation rested on real grounds in the system of either party. How many religious sects are in a state of di^unction, and even of fierce hostility, from mere mutual ignorance. Both the Synod and the Eelief declare, as the reason for their uniting, that " any differences in opinion or practice which were formerly supposed to exist, and to present obstacles to a cordial and scriptural union of the two bodies, either never had an existence, or have, in the good Providence of God, been removed." Whether this be true or not, it is at least possible, and I think not improbable. Each party may, therefore, stiU keep its own opinions, and yet the two need iiot differ. But, moreover, I see no retention of separate tenets, if they existed, provided for. There is certainly no such provision in the 6th article of DECIDED IN THE COURT OF SESSION. 277 their " Basis of Union," whereby, in the matter of " occasional admission to fellowship in the Lord's Supper,'' each minister and session may continue to enjoy " the right of acting on their conscientious convictions," as they did "in their separate communions;" a point as to which it is not proved to us that the two bodies even differed. Nor can I discover any in the 10th article, in which they both make the very needless declara- tion, that their opinion of the Established Church remains unchanged. The only plausible passage for the defenders is that part of the Synod's minute of the 13th of May 1847, in which it is said that each congregation may keep its old name if it pleases, and that the union shall not be con- sidered as "changing their ecclesiastical connection, or affecting any of their civU rights." Now, 1st, This forms no part of the " Basis of Union;" it only forms part of a previous minute of the Synod, but is not repeated in the basis. 2dly, Whatever else these words may mean, they neither do, nor can mean, that each party held opinions inconsistent with the opinions of the other, and was to retain them ; for this was in direct contradiction with what they were both doing, and had both been setting forth, at that moment. And, 3dly, Assuming that each party was to retain its own tenets, it still remains to be settled whether the tenets of the one were different from those of the other. On the whole, upon this, which I conceive to be the main point of the case, I want more light. If we must proceed on what we have, there is nothing to remove from my mind the prima facie evidence of the identity of their principles, which is supplied by the mere fact of their uniting. That religious parties should differ on imaginary or immaterial grounds is no uncommon occurrence ; but that, with real differences, they should unite, is, I suspect, a case without example, unless where secular considerations have extinguished ecclesiastical feelings. No such con- siderations have been averred to operate here. And, so far as appears, the junction has been acceded to by the whole members of both bodies, except the defenders. The defenders, nevertheless, may certainly be right, and every one else wrong. But, prima facie, the probability is the other way. Lord Mbdwtn was absent. The Court then pronounced this interlocutor : — " Sustain the 4th, 5th, and 6th pleas in law stated on record, in defence against the present action: Assoilzie the defenders from the conclu- sions of the summons, and decern : Find the defenders entitled to expenses." "W., A. Or., & E. Ellis, "W.S.— Lockhakt, Morton, Whitehead, & Gkeig, W.S. — Agents. 278 LEADING ECCLESIASTICAL CASES May 28, 1858. John Cairnoross and Others, FuTsueTs.—Ymng—Gifford. The Eeverend James Meek and Others, Defenders.— Jfoncrei/— N. 0. Campbell. Second Division. — Lord Benholme. Trust Church— Property— Acquiescence — Mora — Personal objection.— Vio- perty consisting of a piece of ground, with a church and dweUing-house built thereon, was held by certain persons « as trustees and managers appointed by and in trust for behoof of" a congregation of Seceders "adhering to the original principles of the Secession." The trust-deed provided that the sub- jects should belong to the congregation for which they were so held, and to those who in time coming should accede thereto, and that " any trustee per- manently removing from the bounds of the said congregation, or leaving the foresaid principles, or otherwise becoming disconnected with the said con- gregation, shall forfeit his right as trustee, and that ipso facto and without any formal vote." In an action at the instance of certain persons designing themselves the only surviving and continuing trustees, and also of parties designing themselves members of the congregation, against a majority of the trustees, who with the congregation, ha^ united with the Free Church, to obtain restitution and possession of the property, on the ground that the defenders had, by their union, ceased to be members of, or trustees for, the congregation, and had illegally kept possession of the property ■,—Held that the pursuers, not having taken any steps Mito tempore to oppose or prevent the union, were excluded from insisting in the action. The congregation of United Original Seceders in Carnoustie was formed in or about the year 1808, in connection with a body then denominated "The Constitutional Associate Presbytery." It was a part of the body which in 1827 united with the Associate Synod or Protesters under the name of the " Associate Synod of Original Seceders," and who again united with the minority of the Original or Burgher Synod in 1842 under the designation of the "Associate Synod of United Original Seceders." From 1808 to 1827 this congregation was denominated the " Con- stitutional Associate Congregation of Carnoustie." From 1827 to 1842 it was called the " Associate Congregation of Original Seceders in Car- noustie," and from 1842 downwards it bore the name of the " Congrega- tion of United Original Seceders in Carnoustie." By disposition, dated 8th October 1829, granted by William Duncan, weaver and manufacturer in Links of Carnoustie, he disponed in favour of certain persons as trustees, including the pursuers John Cairncross and William Kidd, and the defenders the Reverend James Meek, James Lorimer, and Eobert Keay, the lot of ground specially described in the summons, upon which a church or meeting-house had been previously erected, and upon which a dwelling-house and offices were afterwards erected, for the occupation of the minister of the chapel. DECIDED IN THE COUET OF SESSION. 279 This disposition was granted in favour of the said persons, " as trustees and managers appointed by and in trust for behoof of the Associate Congregation of original Seceders in Carnoustie, in connection with the Associate Synod of Original Seceders, and presently under the pastoral inspection of the said Eeverend James Meek, and adhering to the ori- ginal principles of the Secession, as these are more particularly described in a book entitled ' A Testimony for the Truths of Christ, agreeably to the Westminster Standards, as received by the Eeformed Church of Scotland ; and in opposition to defections from the Eeformation sworn to in Britain and Ireland ;' enacted and emitted by the Associate Synod of Origmal Seceders, at Edinburgh, the 18th day of May 1827 :" and the first and sixth purposes of the trust were thus expressed, " Primo, That the said lot of ground and others hereby disponed is conveyed to, and shall be held by, the said trustees, in trust and for behoof of the foresaid Associate Congregation of Original Seceders at Car- noustie, to whom solely, and those who shall in time coming accede to them, and continue in adherence to the foresaid original principles of the Secession, the said subjects shall belong ; and if, in future, any question at any time shall arise among the members of the said con- gregation respecting their adherence to said principles, it shall be determined in favour of those members for the time being who shall be ready to subscribe an aflSrmative answer to the five first questions of the formida framed and enacted by the Associate Synod of Original Seceders at Edinburgh, the 18th day of May 1827, to be put at the ordination of ministers and elders." "Sexto, That any trustee per- manently removing from the bounds of the said congregation, or leaving the foresaid principles, or otherwise becoming disconnected with the said congregation, shall forfeit his right as trustee, and that ipso facto, and without any formal vote of the congregation laying him aside." On 27th April 1852, an overture for a contemplated union with the Free Church of Scotland was brought forward in the Synod of United Original Seceders, and was earned by a majority of that body. In pursuance of the object of this overture, a representation and appeal was presented to the Assembly of the Free Church in May 1852, in which the Synod, or at least the majority of that body, professed to adhere " to the original standards of the Church of Scotland, not only as asserted and vindicated in any of the acts and declarations of the Free Church, but also as asserted and vindicated in our own testimony," while freely acceding to all the principles of the Free Church as their principles. Thereafter, on 1st June 1852, the Assembly of the Free Church came to a resolution agreeing to the proposal of union, and receiving and admitting the Synod of United Original Seceders into their Association accordingly. At this time, and for many years previously, the Eeverend James Meek was minister of the Congregation of United Original Seceders in Carnoustie. He took a part in the movement for a union with the Free Church. At meetings held on 3d June 1852, that union was laid before and w;as discussed by the congregation and kirk-session of 280 LEADma ECCLESIASTICAL CASES Carnoustie. It was carried at both meetings, not without difficulties and objections being stated, but without division, protest, or dissent. After the union thus effected, the Eeverend James Meek and the body who so united themselves with the Free Church kept possession of the lot of ground conveyed by the disposition above mentioned, and also of the church and dwelling-house. The present action was raised in July 1856 by William Kidd, Andrew Anderson, and John Duncan, as " members of the congregation sometime known as the Constitutional Associate Congregation, etc., and now called the congregation of United Original Seceders in Car- noustie in connection with the Associate Synod of United Original Seceders," and by John Cairncross and William Kidd as " the only surviving and continuing trustees and managers appointed by and for behoof of the said congregation," against the Eeverend James Meek and others. The conclusions were, in the first place, for declarator (1) that the lot of ground conveyed by the foresaid disposition, and also " all other property whatsoever of the said congregation, belong to and are held for behoof of the pursuers, and such others as may accede or adhere to or join them, and form along with them the said congrega- tion, and who shall continue in adherence to the original principles of the Secession as referred to in the disposition " above mentioned ; (2) " that the defenders, or such of them as have ceased to be members of said congregation of United Original Seceders in Carnoustie in connec- tion as aforesaid, by becoming members of the Free Church, have in consequence amitted, forfeited, and lost all right and title to the said lot of ground, and the church, dwelling-house, etc., erected thereon, and whole other property of said congregation;" (3) "that the pursuers have for themselves, and such others as may accede or adhere to or join them, as members of said congregation, the sole right to the said subjects and property, and to the exclusive use and possession thereof;" (4) " that the pursuers, the said John Cairncross and William Kidd, as the only surviving and continuing trustees and managers foresaid, are now the sole owners of said subjects, holding the same in trust for behoof of themselves and the other pursuers, and such others as may accede or adhere to or join them, and that they, as such surviving and continuing trustees and managers, and the other pursuers and their said adherents, are alone entitled to give direction in regard to the occupation, disposal, or management of said subjects, free from control, interruption, or interference on the part of the defenders ;" and (5) " that the defenders, who were named trustees and managers under the foresaid disposition, have ceased to hold the said offices, or to have any right or title to the subjects in question, and that the pursuers Cairncross and Kidd, as the only surviving and continuing trustees, are now feudally vested as such in the said subjects, with the complete right and title thereto under the disposition and sasine ;" in the second place, alternatively, and if necessary for decree against the defenders, ordaining them to dispone and make over to the pursuers, Cairncross and Kidd, as the only surviving and continuing trustees for the congre- gation, or to them and such other persons as the congregation may appoint DECIDED IN THE COUET OF SESSION. 281 as their trustees and managers, the said subjects and others, and to execute all deeds necessary for that purpose ;" and, in the third place, there were conclusions for removing, interdict, rent, damages, restitution, and expenses. In support of this action the pursuers, after setting forth in detail the history of the secession of 1733, the various divisions and branches thereof, the position and tenets of the congregation at Carnoustie, the terms of the above disposition, and the accession of the defenders to the union with the Free Church in 1852, stated : — "By the said accession to the Free Church in 1852, the majority of the Synod of United Original Seceders, and all the congregations, or members of congrega- tions adhering to them, including those who seceded from the congrega- tion of United Seceders in Carnoustie, have relinquished a judicial testimony for the principles, doctrines, and tenets which they previously maintained or professed they maintained, and have joined a church whose formula contains no recognition of said principles, doctrines, or tenets ; but, on the contrary, admits to her fellowship oflSce-bearers and members holding and maintaining contrary and antagonistic views in regard to the covenants and to covenanting, which excluded them from ,the communion of the church to which the Synod of United Original Seceders belongs. No minister who has joined the Free Church en- forces, or can enforce, the recognition of the covenants upon the members of his congregation as a duty, nor can any minister of that church exercise discipUne against any member refusing such recognition, or refuse to admit as a member of his congregation, even one who, it may be, contemns and despises the covenants. The Free Church of Scotland, in her principles, doctrine, worship, discipline, and govern- ment, differs from the Synod of United Original Seceders and from the Associate Synod of Original Seceders, and the Constitutional Associate Presbytery, and from the said congregation in Csirnoustie, from its original formation downwards, in numerous and important particulars." Some of these points of difference were specified. It was alleged that the pursuers, Caimcross and Kidd, were now the only surviving and continuing trustees and managers for the congregation, all the others having either died or ceased to be members ; and that the defenders' possession of the church and other subjects was from and after the date of their accession to the Free Church illegal and usurped. The defenders, besides disputing the merits of the action, and stat- ing that " there was nothing in the standards, doctrines, principles, or government of the Free Church, inconsistent with those of the Associate Congregation of Original Seceders in Carnoustie, on the contrary, they were in effect the same," set forth on record that the union with the Free Church was acceded to by the kirk-session and congregation of United Original Seceders in Carnoustie, without division or protest, at meetings duly summoned and held, and stated the following objections personal to the individual pursuers : — " The pursuers are now barred from objecting to the union, and from insisting in the present action. John Cairncross, the leading pursuer, was at the time of the union under process before the session for disorderly conduct, and inadmissible 282 LEADING ECCLESIASTICAL OASES as a voter. Further, for years before that date, he had refused to com- ply with the rules, and to make the payments incumbent on sitters in the church and members of the congregation. He was not even entitled to a seat in the church, having positively refused for years to pay seat rent ; and he did not attend the said meeting of the congregation on the 3d of June 1852. " The pursuer, Mr. Kidd, had at the last mentioned meeting asked several questions with respect to the terms of the union, and was apparently satisfied with the answers given him. Accordingly, for a number of months thereafter, he continued to worship along with the con- gregation as united with the Free Church just as he had done previously to the union. Mr. Meek, the minister, became aware that he had some alleged difficulties with regard to the union, and suggested to him that his scruples might be satisfied by having them recorded in the session records. About the middle of August Mr. Kidd brought the production No. 4-5 of process, to Mr. Meek, at a private interview, professedly with the view of satisfjdng his scruples, that he might continue to sit, as he said, under Mr. Meek's ministry ; but that document turned out to be, in its nature, not a simple statement of diffiiculties, but a protest against the said union, and a claim to the property of the church, etc. Mr. Meek attempted to scroll something on the back of that document more consistent with his suggestion to Mr. Kidd, and which might be allowed to enter the record ; but being latterly satisfied that Mr. Kidd was not acting in bona fide, he refused to have anything to do with the document, and returned it to Mr. Kidd. Thereafter, on the 9th of September, he brought the same paper to a regular meeting of session ; but, for the same reason, the session refused to receive it. The scrolling on the back of it, which was scored by Mr. Meek himself before he parted with it, is what is now represented as Mr. Meek's official endor- sation. Shortly after this, Mr. Kidd removed out of the bounds of the congregation, and took up his residence in Dundee, where he joined another congregation, with which, it is believed, he is still connected. He has now no connection with Carnoustie. " The pursuer, John Duncan, Mr. Kidd's son-in-law, removed from the bounds of the congregation at Carnoustie about the time of the union. Thereafter, he and his wife, as members of the Free Church, obtained regular lines of disjunction from the said congregation at Carnoustie, which lines they presented to the kirk-session of one of the Free Church congregations in Dundee, and being admitted members thereof, they continued in full communion with the Free Church for several years. " Andrew Anderson, the remaining pursuer, who, being present at the foresaid meetings, both of session and congregation, held on 3d June 1852, not only did not make any opposition thereat, but continued occasionally to worship with the congregation as a member thereof, and occasionally acted as its precentor. " Accordingly, the defenders and the congregation worshipping along with them, retained possession of the church and premises, without any complaint on the part of the pursuers until on or about the 20th Octo- DECIDED IN THE COURT OP SESSION. 283 ber 1855, when a letter was received from a Mr. Jack, on their behalf, dated from Dundee, intimating that a party calling themselves the congregation of United Original Seceders of Carnoustie, was then and there being constituted. There is no such congregation in Carnoustie. " Neither Mr Cairncross, Mr Badd, nor Mr Duncan, were at the date of the union, nor are they now, qualified or entitled to vote or in- terfere in regard to the affairs or property of the defenders' congregation, and this the minister and elders thereof will attest in manner mentioned in the disposition to the property." The defenders pleaded: — 1. That the pursuers had no sufficient title to sue. 2. That they were barred from insisting in the action. 3. That their statements were not relevant to support the conclusions of the summons; and, 4. That the defenders were entitled to the property in dispute — (1) In respect that they belonged to and repre- sented the congregation in Carnoustie, to whom the property always belonged ; (2) In respect that they had not departed from or abandoned the doctrines and principles for the maintenance of which the congrega- tion was formed, the property acquired, and the church built and kept up. The Lord Ordinary, on 12th November 1857, pronounced the following interlocutor : — (After fiadiags embodying the terms of the disposition as above given) — " Finds (3) that the Associate Synod of Original Seceders having in 1842, on occasion of their union with another body of dissenters, assumed the title of the Synod of United Original Seceders, there was, on the 27th April 1852, laid before that Synod (with whom the congregation at Carnoustie were in connection) an overture for an union with the Free Church, on the grounds therein set forth, and on this footing, inter alia, ' it being also distinctly understood that we hold by the standards and constitution of the Church of Scot- land, not as these may have been explained in any Act or Acts of the Free Church, but as they are stated and defined in our own testimony : ' Finds (4) that this overture was adopted by a narrow majority of the Synod, including the defender, the Rev. James Meek ; and that a protest was taken by the minority, who, in respect the majority had resolved to drop their judicial testimony for the Covenanted Reforma- tion, claimed for themselves, and those adhering to them, to be constitu- tionally the Synod of United Original Seceders : Finds (6) that the proposed union was completed on the 1st June 1852, through the medium of certain acts of the Free Church in reference to a representa- tion and appeal of the said majority of the Synod, by the latter of which the said majority proposed to drop their testimony as a separate church and to become incorporated into the Free Church upon ei&nA.e.vs.—Ld.-Adv. Morwreiff—Camphell. Second Division. — ^Lord Ardmillan. Oliurch — Dissenters — Trust. — A congregation of Seceders possessed a chapel which was vested in trustees for behoof of a congregation in connec- tion with the body that afterwards became the " United Associate Synod of Original Seceders." A majority of the Synod joined the Free Church ; the minority met and constituted themselves the Synod, adhering to their former principles. The congregation was divided, but a majority was in favour of the union. In an action of declarator by the minority to vindicate DECIDED IN THE COUET OF SESSION. 293 their riglit to the chapel ; — Held {alt. judgment of Lord Ardmillan), that, having regard to the trvist-title under which the property was held, the chapel belonged to the part of the congregation which adhered to the principles maintained by the church for whose behoof it was vested in trustees ; that a majority of such a body were not entitled to compel the minority to unite with any other body, or divert the chapel from the purpose for which it was held in trust ; that the principles of the Free Church and of the United Associate Synod of Original Seceders were diflferent in essential particulars ; and therefore, that the pursuers were entitled to decree, as concluded for. In 1852, at a meeting of the Synod of the body of dissenters called the United Associate Synod of Original Seceders, it was resolved by a majority of one, that that body should join the Free Church, and the majority were received into the Free Church. The minority of the Synod refused to accede to the union, and protested that they continued to constitute the Synod. At that date there was in Thurso a congre- gation of these seceders, possessing a chapel vested in trustees, in the terms afterwards noticed j the congregation was divided as to the propriety of the union. The majority, along with the Rev. David Burn, their minister, passed a resolution in favour of the union, and continued thereafter to occupy the chapel, under the name of the Free North Church of Thurso. Those who objected to the union withdrew from the congregation, and brought the present action in 1854, seeking to vindicate their right to the chapel. They designated themselves as members and the major part of the male communicants of " the Associate Congregation of Thurso, in connection with the General Associate Synod of Edinburgh, which Synod was latterly known as the Associate Synod of United Original Seceders," of which congregation the Reverend David Burn was " until lately" minister. They called as defenders Mr. Burn and a number of others. The summons concluded for declarator, that the ground, and chapel and manse built thereon, by the Associate Congregation of Thurso " and also that all other pro- perty whatsoever belonging to, or vested in trust for behoof of the said congregation, belong to, and are held for behoof of the pursuers, and all others who may adhere to them, and form along with them, the Associate Congregation of Thurso in connection with the General Associate Synod of Edinburgh, afterwards known by the name and title of the Associate Synod of United Original Seceders, and belong and are held exclusively for the pursuers and those who may adhere to them, and maintain the principles and doctrines maintained by the body denominated Original Seceders, in connection with the said General Associate Synod of Edinburgh, or Associate Synod of United Original Seceders : And that the defenders, or such of them who have ceased to be members of the Associate Congregation of Thurso, in connection aforesaid, by becoming members of the body called the Free Church of Scotland, have, in consequence, amitted, lost, and for- feited all right and title to the said subjects, and kirk or chapel, or meeting-house and manse erected thereon, and whole other property of the said congregation, or at least, that the defenders have no riglit to deprive the pursuers, who decline to become members of the said Free 294 LEADING ECCLESIASTICAL CASES Church, of the proper use and enjoyment of the said kirk or chapel or meeting-house, and other subjects before mentioned: And that the pursuers, members aforesaid of the Associate Congregation of Thurso, and in connection as aforesaid, have for themselves, and such others as may adhere to or join them, the sole right and title to the said subjects, and kirk or chapel or meeting-house, and whole other property, and to the exclusive possession and management thereof; and further, that the managers and trustees who may be appointed by the pursuers and their said adherents, shall hold the same solely foi* behoof of them, the pursuers, and their said adherents, and that they alone are entitled to give directions to the said managers and trustees in the premises, free from the control or interference of the defenders ; and the said defenders ought to be decerned to deliver to the pursuers the whole title-deeds of the said heritable subjects, and to quit possession of the said kirk or chapel or meeting-house and other property," etc. The summons also concluded for interdict against the defenders voting at meetings of the congregation, and generally from molesting the pursuers and their adherents in the peaceable possession of the chapel in all time coming, and that the defenders should be decerned to pay a rent for the chapel of £60 per annum, from the 7th day of June 1 862, the date of the declaration of their having united with the Free Church of Scot- land, and to restore the buildings to the same good state of repair in which they were previous to that date, and to pay £20 sterling less or more, as the same might be ascertained to be the balance then in the hands of the treasurer. The pursuers averred that the defenders, by joining the Free Church, adopted principles different from those of the Original Seceders, which were alleged to be those held by the Church of Scotland during the period of the second Reformation. The Roman Catholic religion was abolished in Scotland in 1560. The First and Second Books of Discipline defining the form of govern- ment of the Church of Scotland were framed in 1578; in 1581 the Nation'al Covenant (directed chiefly against Popery) was subscribed and sworn to by the King and the people ; the Acts in favour of the Church of Scotland were renewed and confirmed by the Act 1592, c. 116; and thus what is called the First Reformation was effected. It ended when prelacy was imposed on Scotland by King James VI. ; but in 1638 the General Assembly at Glasgow abjured Episcopacy, re-enacted the Second Book of Discipline, and approved of the National Covenant. Then commenced the Second Reformation. The National Covenant was subscribed by the people in 1639 ; the proceedings of the Assembly of 1638 were ratified by the King and Parliament in 1640 and 1641. In 1643 and 1644 the Solemn League and Covenant was subscribed by the nation, and by Charles II. in 1650 ; and in 1645 and the fol- lowing years, the Westminster Standards and Confession of Faith were approved of and adopted;. The Solemn League and Covenant is directed chiefly against Prelacy, and binds its adherents to endeavour to bring about " conjunction and uniformity in religion, confession of faith, form of church government, and directory for worship and cate- DECIDED IN THE COUET OF SESSION. 295 cliising " in the churches in " the three kingdoms," and " to endeavour the extirpation of" Prelacy, and to endeavour to discover and bring to "public trial" and "condign punishment" all parties "hindering the Eeformation." The period of the Second Reformation ended, when, on the Restoration, Episcopacy was reimposed on Scotland; and in 1661 an Act was passed annulling the Acts of previous ParUaments favour- able to the church since 1633. The Revolution Settlement in 1680, by which Presbyterianism was re-established in Scotland, proceeded on the basis of the Act 1592, but did not, in several respects, restore the church to the position attained by it during the period of the Second Reformation. The Secession had its origin in 1733, in the following circumstances. In 1731, an overture concerning the method of planting vacant churches was before the General Assembly, providing for the procedure of the Church in cases where patrons failed to issue a presentation. At the next Assembly the overture was made a standing Act, the Assembly refusing to record a dissent from their resolution, and a protest against it. The Reverend Ebenezer Erskine, in preaching at the opening of the Synod of Perth and Stirling in October 1733, "used the freedom of testifying against some public evils, particularly this Act of Assembly." ' The Synod resolved that Mr Erskine was censurable, and that he should be rebuked and admonished. Owing to his non- appearance the sentence was not carried out, either at that meeting or the meeting held in April 1734. The Assembly, on an appeal by Mr Erskine, approved the proceedings of the Synod, and ordered him to be rebuked at the bar. Mr Erskine declined to submit to the judgment, and offered a protest for himself and three other ministers — Messrs. Moncrieff, Wilson, and Fisher. The Assembly refused to receive the protest. Mr. Erskine laid it on the table : and, along with his three adherents, left the house. The Assembly ordained them to appear before the commission in August ; and then to shew their sorrow for their conduct, to retract their protest, and failing their doing so, empowered the commission to suspend them, or to proceed to higher censure. The commission in August suspended them, and on 16th November loosed them from their charges, and declared them no longer ministers of the Church. When the sentence was intimated, Mr Erskine and his adherents gave in a protest in the following terms : ^ — " We hereby adhere to the protestation formerly entered before the Court, both at their last meeting in August and when we appeared first before this meeting. And, further, we do protest in our own name, and in the name of all and every one in our respective congregations adhering to us, that, notwithstanding of this sentence passed against us, our pastoral relation shall be held and reputed firm and valid. And likewise we protest, that notwithstanding of our being cast out from ministerial communion with the Established Church of Scotland, we still hold communion with all and every one who desire, with us, to adhere to the principles of the true Presbyterian Covenanted Church ' Gib's Display of the Secession Testimony, vol. i. p. 26. = Gib's Display, vol. i. p. 34. 296 . LEADING ECCLESIASTICAL CASES of Scotland, in her doctrine, worship, government, and discipline ; and particularly with every one who are groaning under the evils, and who are affected with the grievances we have been complaining of ;_ who are, in their several spheres, wrestling against the same. But, in regard the prevailing party in this Established Church, who have now cast us out from ministerial communion with them, are carrying on a course of defection from our reformed and covenanted principles ; and par- ticularly are suppressing ministerial freedom and faithfulness in testifying against the present backslidings of the Church, and inflicting censures upon ministers for witnessing by protestations and otherwise against the same ; Therefore, we do, for these and many other weighty reasons, to be laid open in due time, protest that we are obliged to make a secession from them; and that we can have no ministerial communion with them till they see their sins and mistakes, and amend them. And in like manner we do protest that it shall be lawful and warrantable for us to exercise the keys of doctrine, discipline, and government according to the Word of God, and Confession of Faith, and the principles and constitutions of the Covenanted Church of Scot- land, as if no such censure had been passed upon us : Upon all which we take instruments. And we hereby appeal unto the first free, faith- ful, and reforming General Assembly of the Church of Scotland." The four clergymen formed themselves into what they called the " Associated Presbytery." They published in 1734 " the first or Extra- judicial Testimony,".' in which the following grounds are stated for the secession, — " (1.) That the prevailing party in the judicatories of the Church of Scotland, particularly in our assemblies and commissions, are breaking down our beautiful Presbyterian constitution. (2.) That they are pursuing such measures as actually corrupt, or have the most direct tendency to corrupt, the doctrine contained in our excellent Confession of Faith. (3.) That they are imposing new terms of ministerial com- munion, by restraining ministerial freedom and faithfulness in testifying against these sinful and church-ruining courses, and all this contrary to the solemn engagements they have come under at their ordination to the holy ministry. (4.) That these corrupt courses are carried on with a high hand, notwithstanding that the ordinary means have been used to reclaim them, and to stop the current of their defection. (5.) That at length matters are come to such a height, that we are excluded from keeping up a standing testimony against their defections and backslid- ings in a way of ministerial communion with them." And for the reasons stated, the Presbytery considered it to be their duty to secede from "the prevailing party in the Church" till they should be sensible of their sins and mistakes, and reform and amend the same. In 1734 the General Assembly recalled the censure, and overtures were made with a view to the return of Erskine and his adherents to the Church, but these were declined by them ; and in 1735 they published "The Eeasons for Non-accession." They soon after proceeded to act in a judicial capacity, by ordaining and settling ministers, fixing the terms ' Gib's Display, vol. i. p. 38. DECIDED IN THE COURT OF SESSION. 297 of fellowship, and asserting the principles on which their secession was founded. In 1736 they enacted " The Judicial Testimony,'' which contained the first formal statement of the principles of the body. This testimony is entitled "An Act, Declaration, and Testimony for the doctrine, worship, discipline, and government of the Church of Scotland, agree- able to the Word of God, the Confession of Faith, the National Cove- nant of Scotland, and the Solemn League and Covenant of the three nations." In the preamble it is specially set forth, that " the whole land stands indispensably bound and obliged by the most solemn Covenant engagements to the maintenance and preservation" of the truths of God, and of the precious ordinances and institutions of Jesus Christ, And the Associate Presbytery " therefore cast in their mite of a testimony to the doctrine, worship, government, and discipline of the Lord's house, therein agreeable to the Holy Scriptures, our Confession of Faith and Catechisms, the National Covenant of Scotland, and the Solemn League and Covenant of the three nations ; as also against the injuries and insolent indignities done unto, and the encroachments, violations, and breeches made upon the same, and against several steps of defection from the same both in former and present times." The " Testimony" is divided into the "approving," the "condemning," and the " asserting " parts. " The approving part of the Testimony" narrates the leading steps in the settlement of the Church during the first Refor- mation, the abolition of Popery, the approval of the Confession of Faith, and of the first Book of Discipline in 1560, as the standards of the Church; the subscription by the king in 1580, and by the people in 1581, of the National Covenant; the approval by the General Assembly in 1581, and by Parliament in 1592 of the second Book of Discipline ; and the second subscription of the Covenant in 1590, and the other proceedings in favour of the Church until the Restoration. The " condemning part of the Testimony" gives some instances of what is styled "the beginning, progress, and height" of the apostasy from the principles of the Church during the period between the Resto- ration and the Revolution. For instance, the Act Eecissory and the restoration of prelacy are declared to have been " in opposition and contradiction to the most solemn professions of allegiance unto the King of Zion, and the most solemn oaths and covenants that a people could come under to the most high God ;" the burning of the Solemn League and Covenant at Linlithgow and at the Cross of Edinburgh ; the abro- gation of the penal statutes and the establishment of boundless toleration were condemned as contrary to the principles of the Church of Scotland contained in her Confession of Faith and Larger Catechism, and intended to introduce Popery and slavery. It next condemns the Revolution Settlement for various reasons, and, among others, because " Prelacyis not therein considered as contrary to the Word of God, and abjured by our covenants, nor our Presbyterian church government and discip- line, as what the land is bound to maintain by the most solemn oaths and covenants. The indignities done to the National and Solemn League and Covenant, and consequently to the most high God, the 298 LEADING ECCLESIASTICAL CASES great party in them, are never regarded, but these solemn oaths and covenants are left buried under an Act Eecissory, and other Acts and. deeds subversive of them." The Treaty of Union is condemned because inter alia, by it the two kingdoms were "incorporate, upon terms opposite unto, and inconsistent with, our Covenant-union" with England anno 1643 ; and this Testimony also condemns the " countenance given by authority of Parliament to the observation of holidays in Scotland, by the vacation of our most considerable courts of justice in the latter end of December. This superstitious practice was condemned by the acts and constitutions of this Church, and declared by the General Assembly that met at Glasgow, anno 1638, to be abjured by the National Covenant." The asserting part of the Testimony states the leading doctrines of the Church, and the views of the Presbytery concerning worship, government, and discipline, and contains the following article regarding the Covenants: — " V. In like manner, they do hereby own and assert the perpetual obligation of the National Covenant of Scotland, frequently subscribed by persons of all ranks in this kingdom, and particularly as approved of and explained by the General Assembly 1638, and sworn by all ranks of persons anno 1639, and ratified by Act of Parliament 1640. As also they own and assert the perpetual obligation of the Solemn League and Covenant for maintaining and carrying on a work of reformation in the three kingdoms, taken and subscribed by all ranks in Scotland and England anno 1643, ratified by Act of Parliament of Scotland anno 1644, and particularly as renewed in Scotland, with an acknowledgment of sins and engagements to duties by all ranks, anno 1648. Concerning which oaths and covenants they declare and assert that, as to the matter of them, they were law- ful, being plainly contained in the Word of God, and as to their ends, they were laudable and necessary, and therefore they did and hereby do, declare their adherence to the same.'" The next important document of the Seceders was issued in 1743, viz., " The Act for renewing the National Covenant of Scotland and the Solemn League and Covenant of the three nations, in a way and manner agreeable to our present situation and circumstances in this period."' In 1774 they passed another Act by which it was enacted, that " the renovation of the National Covenant of Scotland, and the Solemn League and Covenant of the three nations, in the manner now agreed upon and proposed by the presbytery, shall be the term of ministerial communion with this presbytery, and likewise of Christian communion in the admission of people to sealing ordinances, secluding therefrom all opposers, contemners, and slighters of the said renovation of our Covenants." ' It is unnecessary to follow the history of the Secession Church throughout its various divisions and reunions on minor points. It is sufiicient to state that in 1852 the United Associate Synod of Original Seceders admittedly represented the body to which the congregation ^ The Testimony is printed at length in Gib's Display, vol. i. p. 53. ' Gib's Display, vol. i. p. 221. DECIDED IN THE COURT OF SESSION. 299 belonged that acquired the property, and built thereon the chapel forming the subject of the present action. The United Associate Synod, in 1842, adopted and re-enacted a testimony, known as the Testimony of 1827, and in all respects adhering to the original Testimony of 1736 ; and in 1842 the following resolution was come to by the Synod — "We further declare that, agreeably to the Act of the Associate Presbytery 1743, and also to their Act in 1744, the renovation of our covenants, National and Solemn League, shall be a term of ministerial communion in the united body, and also of Christian communion, so far as that none can be admitted who are opposers, contemners, or slighters of the duty." At the meeting of the United Associate Synod, held at Glasgow in April 1852, an overture was presented by nineteen ministers in these terms : — " That this Reverend Court do now recognise the Free Church of Scotland as being constitutionally, both by divine and human right, the Church of Scotland to which our fathers appealed ; and also that this Synod do affectionately and respectfully propose to unite with the Free Church of Scotland, on the basis of the Westminster standards, held in integrity and suitably applied, in the way of " " prosecuting the ends of our National Covenants," "to which we are bound by our ordination vows, in the way of abhorring and detesting all contrary religion and doctrine, but chiefly all kinds of Papistry, in general and particular heads, even as they are now condemned by the Word of God and Kirk of Scotland," " which is the end to which we are bound by the National Covenant of Scotland ; and more particularly, that we propose to unite with them in the way of " " endeavouring to promote the reformed religion in the Church of Scotland, in doctrine, worship, discipline, and government, against our common enemies ; the reforma- tion of religion in the kingdoms of England and Ireland ; and in endeavouring to bring the churches of God in the three kingdoms to the nearest conjunction and uniformity in religion, confession of faith, form of government, directory for worship, and catechisms ; also in the way of extirpating," that is, in endeavouring to "root out Popery, prelacy, superstition, schism, profaneness, and whatsoever shall be found contrary to sound doctrine and the power of godliness — the ends which we are bound to prosecute by the Solemn League and Covenant ; it being understood that these ends are to be prosecuted in a suitable- ness to present circumstances, and only by such means as are competent for a church of Christ to employ ; it being also distinctly understood that we hold by the standards and constitution of the Church of Scot- land — not as these may have been explained in any Act or Acts of the Free Church, but as they are stated and defended in our Testimony. In fine, it is humbly submitted to this Reverend Court that the prayer of this overture be duly enacted, and that a representation and appeal embodying the above principles be drawn out, and signed by the moderator and clerk in name of this Synod, and transmitted to the next meeting of the General Assembly of the Free Church of Scotland, intimating our readiness, on a favourable reception being given to its terms, forthwith to terminate our secession, according to the original design, of our fathers." This overture was approved of, and a resolution 300 LEADING ECCLESIASTICAL CASES in terms of it carried by thirty-two of the members, being a majority of one. In pursuance of this resolution, the majority of the Synod made a representation to the Free Church, in which it was stated, — " While we freely accede to all the principles of the Free Church as ours, we beg it to be understood that we desire to be received as adhering to the original standards and constitution of the Church of Scotland, not only as asserted and vindicated in any of the Acts or Declarations of the Free Church, but also as asserted and vindicated in our own Testimony, to all the principles of which we still adhere. These we have already stated in the fullest and frankest manner ; and it remains now for the General Assembly of the Free Church to say whether they are prepared to receive a body holding themselves bound by their ordination vows to these principles, and determined, through the grace of God, to maintain them in union with the Free Church, as they have hitherto done in a state of secession. We claim it as our right to be recognised as the representatives of the first Seceders, who now return to the Church of our fathers, on the understanding that she has returned to her adherence to the great cause of the Eeformation, and that, in acceding to her communion, we shall continue in our several congrega- tions to administer ordinances and discipline as we have hitherto done." The Free Church agreed to the union on the terms proposed. The terms of the deliverance of the Free Church, in May 1852, are as follows : — " Whereas Imo, The Synod of Original Seceders professes to repre- sent the brethren who, upwards of a century ago, protested against the course of defections pursued, and tyrannical procedure adopted by the party then prevailing in this Church, and seceded from the said party on the ground thereof ; appealing at the same time against the censures pronounced upon them, unto the first free, faithful, and reforming General Assembly of the Church of Scotland. 2do, The said Synod, following out the foresaid appeal, have made a representation and appeal to this present General Assembly, with a view to reunion with this Church on the basis of the Westminster standards. 3iio, The General Assembly recognise the said Synod as representing the said seceding brethren, and not only condemn and deplore the course of defection and tyrannical procedure which led to their original separation, but disapprove of and disown the censures against which they felt themselves constrained to appeal ; and, ito, The said representation and appeal is in no respects inconsistent with the Church, or with the principles for which she has been honoured to contend in the best and purest periods of her history. " The General Assembly cordially agree to the proposal of reunion made in the said representation and appeal, and fully consent that their brethren continue free to hold the views therein set forth, and to enjoy the liberty therein claimed, in subordination to the discipline and government of this Church. " The General Assembly, in agreeing to this proposal, feel it their DECIDED IN THE COUKT OF SESSION. 301 duty to acknowledge the services rendered by the brethren of the Secession to the cause of evangelical religion in this land, in the capacity of witnesses for the truth as it is in Jesus, and earnest contenders for their country's hereditary faith and church polity. And the General Assembly cannot but own the hand of God in its influence exerted by the Synod as a body, and by some of its most honoured members, • in promoting the revival of a true Protestant and evangelical spirit in our Church and country, as well as in upholding the scriptural doctrine concerning Christ's glorious and sovereign Headship, alike over the Church, and over the nations on the Church's behalf. " In regard to the events and transactions of the first and second Reformations, to which the Synod refer in their representation and appeal, the General Assembly agree with their brethren in owning the special grace of God, vouchsafed to our fathers on these critical occasions, when the Lord was pleased to order His providence in a manner specially calling for faithfulness, zeal, and union, and when He enabled the Church and nation to make high attainments, and disposed them to enter into solemn vows and engagements for the advancement of His cause, and the overthrow of all that was opposed to it within these realms. The General Assembly agree also in confessing and lamenting the defec- tions from these attainments, and the breach of these public promises and engagements. And they fully and unreservedly acknowledge the obligation to prosecute the ends of the Covenants, in the reformation which these Covenants were designed to advance and perpetuate ; and, in particular, to oppose Popery in all its forms, and Popish institutions, influences, and tendencies, wherever they may be found ; and to aim at a scriptural union, and uniformity in doctrine, worship, and discipline, among the Churches of these lands, in the use of all competent means, suitable to present circumstances, and consistent with the Word of God and the functions and spirit of a Church of Christ." The majority of the Synod were received by the General Assembly of the Free Church. Meanwhile the minority of the Synod protested against the course taken by the majority, and claimed to be the Synod of United Original Seceders, and met as such accordingly.' With them the pursuers claimed to be connected. ^ The terms of the protest were as follows : — " We, the undersigned ministers and elders, members of the Synod of United Original Seceders, in our own name, and in the name of aU adhering to us, do hereby protest against the resolution now come to by the majority of this Court to unite with the Free Church, on the grounds stated in their overture and representation and appeal ; and seeing that they have resolved to drop a judicial testimony for the covenanted reformation, and in particular for the continued obligation of our national covenants, and against the violation of them as a standing ground of the Lord's controversy with the church and nation, we do hereby protest and claim for ourselves, and for those adhering to be constitutionally the Synod of United Original Seceders, resolved in the strength of Divine grace> to fulfil our vows in abiding by and main- taining that testimony on behalf of the principles and attainments of the reformed and covenanted Church of Scotland, which the Original Secession has from the beginning accounted both its duty and honour to uphold ; and we do also protest and cUim all the powers, rights, and privileges of said Synod, and resolve to meet as a Synod." 302 LEADING ECCLESIASTICAL CASES The congregation iu Thurso had been formed in the year 1766, and had in 1795 acquired the property on which the church and manse were erected. The disposition was taken to certain trustees, or the larger part of them, and " their successors in oflSce for the time being, or such as they and the survivors of them shall legally assume into the • rights of the subjects, such assumption being always in virtue of the choice of the congregation, secluding heirs and assignees of all or either them, as managers and trustees of the said Associate Congregation of Thurso in connection with the General Associate Synod of Edinburgh, and under the ministerial inspection of the Reverend Mr Robert Dowie, minister of the gospel in the said congregation, and his successors in ofiice for the time being in connection with the said General Synod." The pursuers averred that the views held by their church were still the same as those of the Seceders of 1733. In proof of which they appealed to the practice of requiring approval of the testimonies, etc., by every member of the congregation on admission as such, by all parents on the baptism of their children, and on all occasions of the dispensation of the Lord's Supper. They appealed also to the questions put to ministers (and among others to the defender Mr Burn), at ordination;' and they averred that, by their accession to the Free Chiirch, the majority of the Synod, and those adhering to them, relin- quished a judicial testimony for the principles which they had hitherto maintained, and joined a church whose formula contained no recognition' of these principles, but, on the contrary, admitted to fellowship oifice- bearers and members holding and maintaining antagonistic views in regard to the Covenants and covenanting which would unquestion- ably have excluded them from the communion of the Original Secession Church. No minister who joined the Free Church could enforce the recognition of the Covenants upon his congregation as a duty, or exercise discipline against any one refusing such recognition, or even refuse to admit as a member of his congregation a contemner and despiser of them. The Free Church, in doctrine, worship, discipline, and ^ The following questions, among others, are put : — Question 4. "Do you own and acknowledge the morality of public covenanting, and do you own and acknowledge the perpetual obligation of the National Covenant, frequently swoi-n by persons of all ranks in Scotland, and particularly as explained by the General Assembly, 1638, to abjure the Hierarchy and Five Articles of Perth ; and also the perpetual obligation of the Solemn League and Covenant for maintaining and carrying on a work of reformation in the three kingdoms, sworn and subscribed by all ranks in Scotland and England in the year 1643, and particularly as renewed in Scotland In the year 1648 : And do you promise, through grace, to adhere to these covenants, and according to your station and opportunities to prosecute the ends of them : And do you likewise acknowledge that the renewing of these covenants is a bond suited to our circumstances, is a duty seasonable at the present time ? " Question 5. "Do you approve of the Testimony enacted and emitted by the Associate Synod of Original Seceders, as a suitable and seasonable Testimony for the doctrine, worship, discipline, and government of the Reformed Church of Scotland ; and do you, in your judgment, disapprove of the several steps of defec- tion both in former and present times, condemned in the said Testimony as con- trary to the Word of God, the Confession of Faith, and our Solemn Covenants ? " DECIDED IN THE COURT OF SESSION. 303 government, differed from the Synod of United Original Seceders, and from the General Associate Synod, in numerous important particulars. There were not only fundamental differences in reference to the Covenants and covenanting, the perpetual obligation of which was a leading article and term of communion throughout the whole history of the congregation of Thurso, and in the Secession Synods since the first secession in 1733, and was still held as a fundamental doctrine by the Synod ; but was entirely disregarded and repudiated by the Free Church. There were also important differences in other respects. The following were mentioned as examples : — 1st, The Free Church stands not on the ground of the second Eeformation, but on the ground of the Eevolution Settlement, as appears from her Claim of Eights and Protest published at the time of her secession from the Established Church, and to which she still adheres. 2d, The Free Church did not recognise as of equal authority all the Westminster standards, viz., the Confession of Faith, Larger and Shorter Catechisms, Directory for the Public Worship of God and the form of Presbyterial Church Government, but only the Confession of Faith as a test — all of the said standards being by the said Synods held as of equal authority. 3d, The Free Church did not acknowledge even the Confession itself " as a part of the cove- nanted uniformity in religion betwixt the Churches in the three kingdoms of Scotland, England, and Ireland," which is held by the said Synods. 4th, The Free Church did not assert in explicit terms the divine right of presbytery, or declare it to be the only form of government appointed by Christ for His Church, which were asserted and declared by the said Synods. 5th, The Free Church did not condemn lay patronage as anti- scriptural and inconsistent with the Supreme Headship of Christ, and the spiritual liberties of the church, which is done by the said Synods. 6th, The Free Church did not require from her members an approval of her creed at their admission, as was done by said Synods, but only from her office-bearers on admission to office. 7th, The said Synods testify in their Testimonies against free or open communion, while the Free Church not only did not so testify, but, on the contrary, held communion, both ministerial and Christian, with other churches. 8th, Private baptism was condemned by said Synods in said Testi- monies ; but the Free Church did not condemn it, and, on the contrary, administers the ordinance privately. 9th, The Free Church did not condemn, but on the contrary, practised private church censure in cases of public scandal — a practice condemned by the said Synods. 10th, The Free church practised the singing of uninspired hymns and para- phrases in the public worship of God — a practice condemned by the said Synods. That differences did exist between the doctrine of the Free Church and the said Synods was evident from the following clause in the Act of the Free Church, admitting the majority of said Synod : — " The General Assembly cordially agree to the proposal of reunion made in the said representation and appeal, and fully consent that our brethren continue free to hold the views therein set forth, and to enjoy the liberty therein craved, in subordination to the government and discip- line of the Church," 304 LEADING ECCLESIASTICAL CASES The defenders averred : — The secession from the Church in 1733 did not arise from any dissatisfaction with the standards of the Church of Scotland — which, in fact, the Seceders adopted — but from dissatisfaction with the prevailing party in the Church ; and the Seceders did not, as was alleged, alter the terms of communion, etc. They publicly declared themselves willing to hold communion with all, whether in the Establish- ment or out of it, who with them adhered to the principles of the true Presbyterian Covenanted Church of Scotland, in her doctrine, worship, government, and discipline. Neither did they intend that their separa- tion from the Church of Scotland should be permanent, but only that it should continue until the grounds of complaint against the judica- tories of the Church should be removed ; and, accordingly, they appealed to the " first free, faithful, and reforming Assembly of the Church of Scotland." It was not untU the enactments in the years 1743 and 1744, when the Secession had been ten years in existence, that the renovation of the National Covenant and Solemn League and Covenant was enacted as a term of communion ; and these enactments were not acted upon. On the contrary, they fell into desuetude throughout the whole of the Secession communions. The renewal of the Covenants was not insisted upon as a term of communion, and was not a term of communion. By their union with the Free Church the defenders did not depart from the standards, doctrines, or principles of the Synod of United Original Seceders, nor from those of the Associate Congregation at Thurso in connection with the General Associate Synod of Edinburgh, mentioned in the disposition to the property. There was nothing in the standards, doctrines, principles, or government of the Free Church inconsistent with those of the Associate Congregation of Thurso. Parties were at issue as to their respective numbers, each claiming to represent the majority of the congregation. The result of a remit by the Lord Ordinary to Mr. Alexander Stuart, clerk of Justiciary, was a report to the effect, that if the whole communicants, male and female, were counted, a majority of two (including one under twenty-one years of age) were iur favour of the union with the Free Church ; whereas, if males only were counted, the majority was opposed to the union. The Lord Ordinary, on 20th December 1856, pronounced the following interlocutor: — "Finds, 1st, That the property of the chapel at Thurso, to which this action relates, is vested in trustees for ' the Associate Congregation of Thurso in connection with the General 'Associate Synod of Edinburgh/ by titles dated in 1795, and that the ^aid Synod, after some changes of name, was in 1852 represented by ' The United Associate Synod of Original Seceders,' otherwise called * The Synod of United Original Seceders :' Finds, 2d, That a proposal for union with the Free Church of Scotland was carried by a majority (however small) of the Synod of United Original Seceders on 27th April 1852, and that a union between the said Synod and the Free Church was entered into on 1st June 1852 : Finds, 3d, That at a meeting of the session of the congregation at Thurso in connection with the said Synod, held on 2d June 1852, the proposal for the said union was carried by a majority of the session, including the minister ; and that. DECIDED IN THE COUET OF SESSION. 305 at a meeting of the said congregation, held at Thurso on the 7th June 1852, tho' resolution to enter into the said union was carried by a majority of the members of the congregation then present : Finds, 4th, That it is now instructed by the report of Mr. Stuart, No. 17 of process, that a majority of the said congregation — both a majority of seat- holders, so far as can be ascertained, and a majority of communicants, as ascertained — adhere to the defenders, who maintain the resolution to join the Free Church adopted at the said congregational meeting : Finds, 5th, That the defenders thus concurring with the majority of the Synod or governing body, and representing the majority of the session, — the majority at the congregational meeting, and the majority of the whole congregation, — are entitled to retain possession of the chapel at Thurso, unless it is proved that, by the said union with the Free Church of Scotland, they have departed in some essential point from the fundamental principles of the body of Seceders with which they were connected : Finds, 6th, That it has not been instructed that in any essential point the defenders have departed from the funda- mental principles of the said body of Seceders : Therefore, assoilzies the defenders from the conclusions of the action, and decerns : Finds the defenders entitled to expenses, but, under all the circumstances of this case, subject to modification ; allows an account," etc' 1 "i^oTE. — This is an. action of declarator of property in a Chapel in Thurso, with conclusions for removing therefrom, and for payment of a sum in name of rent for occupation since the 7th of June 1852. The property was acquired by the congregation in 1795, and the title taken to trustees for the congregation. The defenders are in possession, and although the numhers are very nearly balanced, it has now been ascertained by the report of Mr. Stuart that the defenders repre- sent the majority of the congregation. " The q^uestion here raised is one of patrimonial interest in an heritable property. In order to extricate and decide this legal question, and to the effect of regulating by such decision the patrimonial interest involved, it becomes necessary to enter on a field of enquiry which intrinsically, and to other effects, is not appropriate to courts of civil jurisdiction. The question of denominational constitution or ecclesi- astical foundation is here involved in the question of civil right, as entering into the title to the heritable property, which is the subject of this action ; and, there- fore, as matter of fact, and in order to read and apply aright the title to the property, the articles or constitutional standards of the religious body must be considered. " The property of the chapel appears, according to the titles produced, to have been vested in certain 'managers and trustees of the Associate Congregation of Thurso in connection with the General Associate Synod of Edinburgh, and under the ministerial inspection of the Reverend Robert Dowie, minister of the gospel in said congregation, and the successors in office for the time being in connection with the said General Synod,' and on this title the property now stands. This is a trust for the congregation, and for the congregation as in connection with the General Associate Synod. " After passing through several changes of name, and after forming connections with the several different bodies, the 'General Associate Synod of Edinburgh,' in connection with which the ' Associate Congregation of Thurso ' was formed, became, and was in 1852, 'The Synod of United Original Seceders,' and to this body, under this title, the congregation at Thurso was then adherent. The ' Synod of X 306 LEADING ECCLESIASTICAL CASES The pursuers reclaimed. After hearing parties, the Court delayed judgment untU after hearing the argument in the case of Caimcross United Original Seceders ' joined the Free Churcli of Scotland in 1852. The kirk- session of the Thurso congregation did, by a majority, and with the minister, follow the majority of the Synod, and also resolve to join the Free Church ; and the congre- gation, summoned to meet in the usual manner by intimation from the pulpit, did, by a majority of those then present, approve of the proceedings of the Synod, and imite with the Free Church, and an actual majority of the whole congregation adhere to them. The pursuers allege that, by this union, the trust on which the title to the; property rests has been perverted — that the minister, the kirk-session, and the now ascertained majority of the congregation, have departed from the principles of its ecclesiastical foundation, and that, therefore, the property of the church remains with the pursuers. The defenders, on the other hand, allege that, being the majority of the kirk-session and the majority of the congregation con- curring and co-operating with the majority of the Synod, in accordance with the principles of the constitution of their church, and in maintenance of that connection with the Synod which is specially set forth in the titles as descriptive of the con- gregation of Thurso, they have lawfully and efiFectually united themselves to the Free Church, a body holding substantially all the essential principles of their Testimony. " The state of the facts in the present case excludes a question which, in some previous cases, has been felt to be attended with difficulty, viz., whether the tmst on which the property stands invested is for the governing body in the church and for the congregation so long as adhering to the governing body, or is simply for the congregation. Here the decision of the Synod and the decision of the congre- gation has been the same. There is between them no collision of interest and no conflict of right. The union of which the pursuers complain has been the act alike of the Synod and of the congregation. The fact of this accordance of opinion and of conduct between the governing body and the particular congregation is an important feature of the present case ; and there arises, from this fact, a. certain amoimt of presumption against the averment of essential departure from funda- mental principles. The burden of proving that the defenders have, in foUowiag the Synod into the Free Church, departed from the principles of the foundation of their own Church, and have thereby forfeited the property held in trust for the congregation in connection with the Synod, rests on the pursuers. " The result of the authorities, and especially of the decisions in the cases of CraigdaUie v. Aikman, in the House of Lords ; of Galbraith v. Smith, and of Craigie u.. Marshall, in so far as applicable to this case, appears to be that the ad- herence of the congregation to the Synod or governing body, though not conclu- sive, is an important fact, creating a presumption in favour of adherence to the principles of the Church ; that the decision of the congregation for the union com- plained of is an important fact, creating -. presumption in favour of such union being according to the principles of the congregation ; and that when, as in this case, the connection of the congregation with the Synod is not set forth in the titles as descriptive of its ecclesiastical position and character, then the concurrence of the Synod and of the congregation, in the views adopted, and in the act com- plamed of, gives to these presumptions, when combined, a power and value greatly exceeding that of theii- separate force. That the proceedings of the Synod and of the congregation were adopted by the vote of a narrow majority, and, as regards the Synod, by a majority of one, is a fact which may diminish the force of such presumption in the particular case, but does not destroy it, and does not affect the principle. The pursuers are bound to establish that the majority of this congre- gation, acting along with and maintaining thefr connection with the majority of DECIDED IN THE COURT OF SESSION. 307 V. Meek, in which the same points -were raised in reference to a chapel at Carnoustie, and in which Lord Benholme, Ordinary, had taken a the Synod, have, notwithstanding, departed from the principles of the foundation in some point so essential as to destroy the indentity of the body, and to entitle the pursuers to he considered as the .persons for whose use the property was acquired and the trust was constituted. There is no question here, such as arose in Craigie v. Marshall, of the right of the Synod to force the congregation into a union with another body of Christians under penalty of forfeiting the property in case of refusal. This is an attempt by a minority of the congregation to withdraw the property from the minister and the majority, on the ground of forfeiture alleged to be incurred by. following the Synod into union with another body of Christians. " To support such an action mere verbal distinctions and metaphysical subtleties of difference will not suffice ; the departure from original principle, which is to be ascertained by a Civil Court, and to which the penalty of forfeiture of property is to be attached, must be clear and intelligible, and must be ' in an essential point' (See note of Lord Moncreiff in the second .case of Smith v. Galbraith, 21st Feb- ruary 1843, 5 Dunlop, p. 673.) No proof of such difference has been adduced or tendered beyond what may be found in a comparison of the authoritative stand- ards and testimonies of the two Churches, and in the terms of union. "It is important, in entering on this comparison, to bear in mind the relative position of the two bodies, whose union in 1852 has led to this action. Both streams sprung from the same source ; and both Churches have continued, during upwards of a century's division, to refer to that source their standards of doctrine, discipline, and policy. "The Seceders of 1773 — whom the Synod represented in 1852— declared, on the occasion of their solemn and well-weighed movement — '"We have made a. secession from the prevailing party in the Church.' — 'Our secession is not from the Church of Scotland ; we own her doctrine contained in her Confession of Faith ; we observe the received and approven uniformity of worship ; we adhere to her Presbyterian government and discipline, according to the "Word of God and our solemn Covenant engagements.' In accordance with this declaration, these sece- ders protested that they still held communion with all who desired, with them, ' to adhere to the principles of the true Presbyteria,n Covenanted Church of Scotland, in her doctrine, worship, government, and discipline ; ' and they appealed to ' the first free, faithful, and reforming General Assembly of the Church of Scotland.' (Protestation of 16th November 1733, signed by Ebenezer Erskine, William Wil- son, Alexander Moncrieff, and James Fisher.) Accordingly, the standards and Testimonies of these Seceders have, from 1733 down to the date of the union with the Free Church in 1852, been drawn from the old and piue fountains of ' the Church of the first and second Eeformation.' The doctrinal or evangelical standards are identical. The constitutional principles are the same ; and the selection of these principles for special and prominent proclamation is worthy of particular notice, because eminently characteristic. Erskine and the other seceders in 1733 solemnly and prominently avowed the doctrine of the ' Headship of Christ over the Church,' and ' the appointment by Him, as King and Head of His Spiritual Kingdom, of a government therein, in the hands of church officers distinct from, and not subordi- nate to, the civil magistrate.' They protested against violent settlements, and against lay patronage. They proclaimed their conviction that nations and rulers, as such, are .subject to the authority of God, and that, in prosecuting the end of promoting the public good, they are bound to be guided by the Word, and to consult for the glory of God. — (Gib's Display, pp. 156, 158, 159, 311 ; Testimony of 1827, p. 78.) They protested against the defections of the times, and against errors in doctrine, dealt with too leniently by the Church, and against what they 308 LEADING ECCLESIASTICAL CASES view opposite to that held by Lord Ardmillan in the above inter- locutor ; but that case having been disposed of on a plea of personal thought ' sinful compliances,' authorised or permitted by the State. Finally, they specially recognised the obligations of the National Covenant and of the Solemn League and Covenant, and the duty ' of prosecuting the ends thereof in a right spirit and suitable manner. The celebrated Judicial Testimony of 1736— following on the personal Protest in 1733, and the first or Extrajudicial Testimony in May 1734— continued to be the standing testimony of the Secession, and the later Testi- mony, published in 1827, corresponds with it in all material particulars. In the Testimony of 1827, the 'renewing of our Covenants in a bond suited to the times' is declared to be 'a seasonable duty,' but it is explained that this bond shall be taken only ' by all such as shall willingly offer themselves ; ' and that ' there should be no undue haste in those congregations where it has not been formerely practised.' The doctrine or principle in regard to the Covenants, in so far as it can be viewed as entering into the foundation or constitution of the Secession Chui'ch, and of this body of ' United Original Seceders,' is thus stated in both Testimonies — that of 1736, and that of 1827: — 'This Covenant' (the Solemn League and Covenant) ' was, for the matter of it, just and warrantable ; for the ends, necessary and com- mendable ; and for the time, seasonable.' It does not appear that the actual taking of the Covenant has been either by the standards or by the practice of the Original Secession made a term of communion (Gib's Display, p. 253), and, according to the formula of questions at ordination, the minister is not taken absolutely bound to subscribe or renew the Covenants, but he promises to 'prosecute the ends of the Covenants, ' he owns their obligation, and he acknowledges that ' the renewing of them in a bond suited to our circumstances ' is a seasonable duty. "The other party to the union, now complained of, was the Free Church of Scotland. That body of Christians separated from the Established Church of Scotland in 1843. The grounds of separation are set forth in the Claim of Right of 30th May 1842, and in the Protest of 18th May 1843. It is only necessary here to say, in regard to them, that these grounds were not considered by the Free Church as involving any departure from the doctrine, discipline, and fundamental principles of the Church of Scotland ; and that the protesting ministers and elders, in 1843, who formed the Free Church, explicity avowed, as the Seceders of 1733 had done, their purpose of ' maintaining the Confession of Faith and standards of the Church of Scotland as heretofore understood.' In the recognition of the standards of the Church ; in the reference to the periods of the first and second Reformation, as the best periods of the Church's history ; in the resistance of violent settlements, and the refusal to intrude ministers on reclaiming congrega- tions ; in recognising the duty of the civil magistrate to be guided by religious considerations, and to seek religious ends ; in the solemn and emphatic declaration of the Headship of Christ, and the independent spiritual jurisdiction of the Church ; and in the selection of principles for special and prominent proclamation, the Free Church appears to the Lord Ordinary to occupy the same ground as the Synod of Original Seceders. No difference whatever in doctrine, and no intelligible and essential difference in principle, has been established by the pursuers ; and, indeed, no such difference has been seriously alleged, except in regard to the recognition of the Covenants, which has been ably and ingeniously urged as a point of essential and fundamental difference. " The Lord Ordinary does not think that, in regard to the matter of the Cove- nants,— the ends of the Covenants, or the seasonableness of the Covenants to the times when they were framed and subscribed— there is any difference whatever. These Covenants are not exclusively, or even peculiarly, the muniments of the Secession ; they are the testimonies and pledges of the Church pf Scotland before DECIDED IN THE COUET OP SESSION. 309 bar set up against the individual pursuers,' the present case came to stand alone ; and,1jy interlocutor of 25th June 1858, the Court ordered cases. there was any secession ; and they are stiU held in veneration by all bodies of I'resbytenans within and without the Establishment. It may be that, absti'aotly, the descending obligation of the Covenants, apart from the ends and the matter thereof, was more fully recognised and more highly estimated by the Secession Church tha,n by the EstabUshed Church or by the Free Church. But the obliga- tion, even in its abstract form, was not formally repudiated or denied by the Free Church ; and in its practical form, as connected with the matter and the ends of the Covenants, the obUgation to prosecute those ends by all lawful means is distinctly acknowledged and avowed by the Free Church, and is set forth iu the incorporating Act of Union. The prosecution of these ends by means other than lawful, cannot, by a court of law, be recognised as a principle of any church, and the prosecution of them by lawful means is acknowledged to be the duty of both the Churches, parties to this union. The distinction between a body which recognises covenant obligations because the matter is just and warrantable, the ends necessary and commendable, and the time seasonable, and a body which maintains the same obligations as inherently and perpetually binding, apart from considerations of matter, ends, and time, is too subtle to be relied on in a court of law as a ground for inferring a forfeiture of property. But even this subtle dis- tinction does not exist to the full extent contended for by the pursuers. The descending force, or perpetual binding power of the Covenants, taken apart from the matter and ends thereof, has never been authoritatively proclaimed by the Secession as a principle of foundation, or a, term of communion ; the provision made for renewal of the Covenants by persons willingly offering themselves, seems scarcely consistent with an absolute and perpetual obligation, requiring no renewal, but constantly binding by its descending force without regard to its ends ; and the subscribing of the Covenants has never been enforced as an inflexible duty, apart from suitableness of time and circumstances. "The Testimony of 1827 was republished in 1842, on the occasion of the union of the Original Seceders with the Original Burghers, 'with cei-tain alterations rendered necessary by the union,' and this Testimony was, thereafter, that of the 'United Original Seceders,' and was in force in 1852. In that document the views of the Original Seceders, in regard to the Covenants, are, in all essential particulars, the same as iu the Representation and Appeal presented by the Synod to the Free Church in 1852, and forming the basis of union. " It has also been urged by the pursuers, as a further, but subordinate, ground of difference, that the two Churches differ in their estimate of the Revolution Settle- ment and of the union with England ; and it appears that the Free Church, in her Historical Retrospect, does take a more favourable view of both of these events than the Seceders. But both bodies now actually and sincerely acknowledge these settlements, with, it may be, some little qualification about shortcomings in matters ecclesiastical ; and a slight difference of opinion in regard to the degree of acknow- ledgment, or the degree of qualification, cannot be viewed as a point essential or , fundamental. " Such being the position of these two religious bodies, it occurred to them- selves that there was no good reason why they should continue to be divided ; and accordingly, the Synod of United Original Seceders, standing on the foundation above explained, made to the Free Church, in 1852, a proposal for union. They considered that the Free Church, though now a body of nonconformists like them- ^ Cairnoross and others v. Meek and others, 28th May 1858, Session Reports, vol. XX. p. 996. 310 LEADING ECCLESIASTICAL CASES The pursuers argued : — It was unnecessary now to deal with the authorities further than to cite the two cases of Davidson or Craigdallie selves, did yet historically and constitutionally represent those from whom they had been separated and to whom they were pledged to return : and to the Free Church they presented the appeal which their fathers had taken in 1733, to ' the first free, faithful, and reforming General Assembly of the Church of Scotland.' The General Assembly of the Free Church took the same view of the relative position of the parties ; they agreed to the proposal for union ; and on the footing that the standards and principles of the two Churches were consistent, the union was formally and solemnly completed. "Whether the view so taken of the position of both Churches, and of their historical and representative character as spiritual institutions, was in all respects correct, and especially in regard to the selection of the Free Church as the body to which the Seceders should return, it is not necessary here to enquire ; and on that point the Lord Ordinary expresses no judicial opinion. It was, however, the opinion of the contracting parties, and they deliberately acted on it ; and the question is, — "Whether there is such essential difiFerence of standards and funda- mental principles as to attach to the act of union the penalty of forfeiting the pro- perty dedicated to the use of this Secession congregation ? The Seceders, if they had thought fit, might have reunited themselves to the Established Church at any period during the century of their estrangement ; for, as they were not Seceders from the doctrines of the Church, a change of policy and constitutional practice might have removed the causes of separation. Had they so returned, a similar question would then have arisen, and it would have been necessary to enquire whether the grounds of secession had been so removed as to render the return of the Seceders consistent with their avowed principles. The original character of the Secession Church was not that of perpetual separation. The fathers of the secession and their representatives in the Synod have borne about with them that standing protest and pledge of return which marked them as exiles rather than aliens. Every congregation of the body contemplated the possibility of such return; and_ at length the governing body entered into a union with the Free Church, in the belief, and on the footing, of consistency in standards, discipline, and principles, and as a step wlrich was, in their opinion, equivalent to the return from exile. The majority of the session and of the congregation at Thurso followed the Synod ; and in doing so, preserved the connection which is set forth in the title to the property. If the pursuers had established that this union involved a departure, on any essential point, from the fundamental principles of the Original Secession, the Lord Ordinary would have held such departure to be sufficient ground for infen-ing forfeiture of the property. But, after careful examination of the standards and testimonies of both Churches, and of the terms of union in 1852, he is of opinion that no departure from the essential principles of the Original Seceders is involved in the union. The terms of incorporation are so framed as to distinguish between what is essential and what is accidental. The liberty which is permitted in regard to the manner of the Testimony is quite consistent with unity in recognition of its matter and unity in prosecution of its ends. "The Lord Ordinary is aware that a decision in reference to this union of 1852 has been recently pronounced in the Court of Chancery in Ireland, in the case of the Attorney-General v. MiUer, known as the ' Toberdony ' case. In that case the minister and the minority of the congregation joined the Free Church, and the majority claimed the property ; and the question was disposed of chiefly on a com- parison of conflicting parole evidence of opinion in regard to the harmony or difference of the standards of the respective Chui-ches— a mode of solution which has not been here resorted to. The Lord ChanceUor of Ireland decided the case DECIDED IN THE COUET OF SESSION. 311 V. Aikman,' and Craigie v. Marshall." These decisions fixed the principle that in such cases the chapel, manse, etc., of a body of dissenters, is really property held in trust ; and the questions for the decision of the Court were, what were the purposes of the trust and which of the con- tending parties was adhering to these trust purposes ? In order to decide that question, it was necessary to examine the principles of the Original Seceders and of the Free Church. On which side the major- ity was to be found was not of moment. A majority had no more right than a minority to defeat the purposes of the trust ; but in this case the congregation might be held to be equally divided. It was true that both parties held many common standards, still characteristic differences were to be found in the subordinate or additional Testi- monies or authoritative documents. Those of the Original Secession being — 1st, The Judicial Testimony enacted in 1736; in connection with which were to be taken the Protest tabled by Ebenezer Erskine and his three brethren on leaving the Established Church ; the Extra- judicial Testimony ; the Eeasons for Non-accession ; and the Act for Renewing the Covenants J 2d, The Testimony of 1827; and 3d, The Testimony of 1842. While those of the Free Church were — 1st, The Claim, Declaration, and Protest of 1842 ; 2d, The Address to the Queen thereanent; 3d, The Protest taken in the General Assembly on 18th May 1843 ; 4th, The Act of Separation and Deed of Demission by the seceding ministers ; and 5th, An Act anent Questions, and the Formula passed by the Free Church Assembly in 1846. A comparison of these documents shewed numerous differences between the doctrines of the two Churches. The leading differences were referred to as stated on record, and already quoted. The basis of the Original Secession Church, and to which it recurred, was the second Eeformation in 1641, followed by the Solemn League and Covenant in 1643, the resolutions of the Westminster Assembly, and the statutes ratifying the Confession of Faith, and establishing a covenanted uniformity of religion. Every word of the Testimony of in favour of the majority of the congregation. It does rather appear from notes of his speech furnished to the Lord Ordinary that his decision would have been the same if the action had been brought by a majority ; and in this view the authority has been urged by the pursuers. To this decision, and the observations which accompanied it, the Lord Ordinary has directed his anxious and respectful considera- tion. It cannot be otherwise than with diffidence that he expresses a different opinion ; but, dealing with this case according to the best of his judgment — having regard to the terms of the titles and to the concurrence of the majority of the congregation with the majority of the Synod, and bearing in mind the simi- larity of the causes of both secessions — the steadfast adherence by both Churches to the old standards of the Church of Scotland, the absolute indentity in evangelical doctrine, the striking general harmony of the Testimonies of both bodies, and the failure of the pursuers, as he thinks, to prove departure from the foundation on any essential point — he is constrained to adopt the conclusion that the property of this chapel has not been forfeited by the defenders. " 1 27th June 1805, Mor. p. 14,584 ; remitted on appeal 16th June 1813, 1 Dow, p. 1 ; affd. 21st July 1820, 2 Bligh, 529. ' 25th Jan. 1850, Session Reports, vol. xii. p. 523. 312 LEADING ECCLESIASTICAL CASES 1736, and of later Testimonies, giving a prominent place to the con- tinuing obligation of the Covenants, and the duty of renewing them, was re-enacted in the later Testimonies, and still adhered to by the pursuers. The Free Church, on the other hand, stood on the Eevolution Settlement of 1688, and her standards dealt with the Treaty of Union as the palladium of her privileges. It lay on the defenders who were desirous of changing from the Original Secession to the Free Church, to shew that the principles of the two Churches were identical, — that the defenders were in posses- sion of the church was merely the result of the clergyman id possession of the pulpit at the time being in favour of the union. Eeference to the standards of the two Churches shewed clearly their different prin- ciples, which difference was admitted to exist in the Overture for Union and in the Act of the Free Church Assembly admitting the majority of the Synod, which carefully excluded any acknowledgment by the Free Church of the descending obligation of the Covenants, True, the defenders argued that though the Free Church did not hold the descending obligation of the Covenants and the divine right of presby- tery, that the defenders held these doctrines still, and in their union stipulated for liberty to hold them ; but they might have as well become Roman Catholics or Brahmins with such a reservation, and on the strength of it maintained a right to the chapel, which, if they were allowed to retain it, they would hold not for behoof of the Secession but for behoof of the Free Church. If the Churches were to be united, the pursuers must be prepared to adopt the Free Church standards and at once forfeit the distinction which they considered to be of the essence of their constitution, viz. that they were a protesting body. The terms of the overture of the Synod for a union with the Free Church, and of the Act of the Free Church Assembly, shewed that there were distinctions between the doctrines held by the two churches, which it was necessary to reserve. The case might be tested by putting the case that this had been an action raised by the defenders for declarator, that the pursuers, who refused to join the Free Church, had forfeited all right to the chapel ; —such an action could not have been successful. The real question at issue was, whether the pursuers, who admittedly held the whole doctrines of the Original Secession Church, should be compelled to hold all the dogmas of the Free Church, adopt these standards under the penalty of losing their church, and sink in oblivion the honoured names of the fathers of the Secession, who were the defenders of the principles of the Covenanted Church of Scotland, as set forth in the National Covenant, the Solemn League and Covenant, the Treaty of Union, and the Eevolution Settlement, and adopt the standards of a church which had for its great, if not for its only, distinctive character- istic, that it protested against certain " encroachments of the Court of Session 1" The same case had arisen in Ireland. There were there several con- gregations of Original Seceders. A part of the congregation at Toberdony joined the Free Church, and the question to which portion of the con- DECIDED IN THE COUET OF SESSION. 313 gregation the chapel belonged, came to depend in the Court of Chancery, where the Lord Chancellor held that the meeting-house of Toherdony was buUt for, and was to be preserved to, the exclusive use and benefit of the congregation of Original Seceders, and that the respondents in that cause who had joined the Free Church had thereby disqualified themselves from acting as trustees of the chapel. The defenders argued : — The pursuers were the minority of the con- gregation of Original Seceders in Thurso, and on the union of the defenders with the Free Church, were not excluded from the chapel, but left it to worship elsewhere, and it was not till two years afterwards that this action for the purpose of ousting the defenders from the possession they had before enjoyed was raised. The defenders being in possession, and the pursuers being in the position of a minority questioning the right of the majority, and having left the governing bodies of the Church, were bound to prove, clearly and unequivocally that the defenders, by their union with the Free Church, had violated a fundamental condition of the trust on which the property was held, the presumption being against the minority, the more that there was a minority not only of the congregation but also of the Synod.* More or less directly the cause of the various secessions from the Established Church had been patronage, which did not exist in the Free Church; on that question, and on the questions of the Headship of Christ, and the independent spiritual jurisdiction of the Church, it was impossible to deny that the Original Secession and the Free Church were at one. Prior to the seces- sion of the Free Church, the Synod of Original Seceders passed a resolu- tion approving of the proceedings of the party in the church which afterwards seceded.^ It was therefore not lightly to be assumed that the diiferences alleged by the pursuers really existed. Both Churches had a common origin, and both professed to adhere to what were the fundamental principles of the Established Church in her best and purest times. Neither the Revolution Settlement nor the Treaty of Union were satisfactory to the Church, but they did not cause any secession. They were not prepared by the Church, and her ministers were free to testify against such of these provisions as they considered put the Church in a worse position than she held during the period of the second Reformation, and many ministers did testify against their provisions. The secession was caused twenty-six years after the Union, by the Acts of the Church in reference to lay patronage, which was introduced in 1711. The passages in the sermon preached by Ebenezer Erskine, for which he was sentenced to be rebuked, were " testimonies " against the way in which the law of patronage was administered by the Church, as stated in the "Judicial Testimony of 1827;" and because the use of this means of exonerating themselves, by testifying from the pulpit against the defections from " the principles of the true Presbytreian Covenanted Church of Scotland," was refused by the Church, the four fathers of the 1 Smith. V. Galbraith, Se3.sion Reports, 1837 ; Lord Justice-Clerk's Opinion, Craigie v. Marsliall, irf sup. 2 Original Secession Magazine for 1852, p. 141. 3U LEADING ECCLESIASTICAL CASES Secession seceded and " appealed to the first free, faithful, and reforming Assembly of the Church of Scotland.'" And they also stated that they had dissented from the " prevailing party" in the Church, who were carrying on a course of defection, and not from the Church of Scotland itself, whose doctrine, discipline, and government they adhered to, and had not contravened.'' The pursuers seemed to argue that the Seceders had maintained principles different from those of the Established Church in their Testi- mony of 1736 ; but all its doctrines were found in the standards of the Church, as its title shewed,' and as its terms shewed still more clearly. It approved the whole standards of the Church, and the Acts of Assembly anent them. It condemned, 1. The public evils and defec- tions from 1650 to 1688 ; 2. The Revolution Settlement, in so far as it infringed on the constitution of the Church as existing before 1650, and was a retrograde movement ; but it was not an evil to which the Church was accessory, and was not treated as a ground of secession, but merely as an evil which ought to be protested against. They were content to remain in the Church notwithstanding it, as they could protest within the Church as well as out of it. The last and asserting part of the Testimony dealt with the perpetual obligation of the Cove- nants, and the divine right of Presbytery, from which principles, it was averred, the defenders, by joining the Free Church, had departed. It was not the case that the Secession still held to all the under- takings of the Covenants ; for instance, the idea that they were still bound to give up " malignants" and persecute Eoman Catholics, had been expressly given up.' The use of the term Covenanted Religion meant that the Covenants were but an additional tie to the maintenance of the purity of the Christian Church as in its purest period, which was the duty of all Christian Reformed Churches, and this view the Free Church had never repudiated. True, the Free Church had published no Testimony making special reference to these matters ; their position did not require it. The party holding their principles, who were the minority in 1733, were the great majority in the Church in 1843. They had nothing to complain of within the Church, having carried by a large majority an Act condemning lay patronage," and resolutions in favour of general spiritual independence. Their complaint was against the interference of the Civil Courts. They gave up their temporalities and ceased to be the Established Church, claiming still to be the Church of Scotland with reference to all her standards, and claiming to be the same Church which attained the first and second Reforma- tion, and was pledged to the Reformation from popery and prelacy by the Covenants, which were published as authoritative documents." The Free Church having distinctly avowed the Westminster standards, as 1 See protest quoted, Session Reports, p. 124. '^ Gib's Display, p. 37. ' See Session Eeports, p. 124 ; Gib's Display, p. 53. * See Secession Testimony of 1827 and 1842. ^ Act of Assembly, Session 6, 23d May 1842. ' Authoritative Exposition of the Principles of the Free Church, Standards of the Free Church, pp. 5, 10 ; (prefatory paging), pp. 15, 125, 183, 359, and 383. DECIDED IN THE COURT OF SESSION. 315 their own, as they were received by the Church in her purest times, no other course could be taken by the Secession than to unite with that Church, under their obligation in the Solemn League to prosecute uniformity of religion ; and besides, had they not done so, they would have been abandoning a fundamental principle as set forth in the pro- test of the fathers of the Secession, and in the Testimony that they would return to the Church of Scotland when that Church returned to the principles of the second Reformation. In consummating the union, the Seceders were careful to avoid even the appearance of a departure from any of their principles. The pursuers had failed to make out that the perpetual acknowledg- ment of the obligation of the Covenants was not a principle of the Free Church, which had never disowned them. But it had been stated that, admitting that the Free Church held that principle, she differed essentially from the Secession, in respect she did not insist upon their renewal as a ground of ministerial and Christian communion. But there was not a word in the first Secession Testimony on that head. The renewing of them was not of the nature of a fundamental principle in a church which held them as of perpetual obligation without renewal. This renewal was never insisted on as a matter of principle by the Seceders, being merely enacted as a matter of Christian expediency, which might be seasonable at one time and unseasonable at another. The Act of 1828 merely approved of it as "a bond suitable to the present circumstances of the Church and land," and to be " renewed by all such as shall willingly offer themselves.'" It was only in 1842 that the Synod resolved to make it a term of ministerial communion, and of Christian communion, but only in so far as " none are to be admitted who are opposers, contemners, or slighters of the duty." ^ It was never proposed till 1743.° Neither the Act of 1743, nor that of 1744, regarding that matter were ever enforced, and it was never practised in Thurso, nor was it generally made a term of Christian communion.* It was plain, from the terms of the Testimony of 1842, that the renovation of the Covenants had not been previously reckoned a term either of Christian or ministerial communion ; for the Testimony of that year expressly bears that it was " agreed that, while, all proper means are used for stirring up and preparing the people in their respective congregations to engage in this important and seasonable duty, there should be no undue haste in those congregations where it has not been formerly practised." Besides, this not being a fundamental doctrine, it would be absurd to hold, that the Synod which had power to enact such a regulation had not power also to repeal it. The Secession Testimony and Formula were quoted by the pursuers to shew that it had been held as a fundamental principle that presbytery was a form of church government of divine appointment. By joining the Free Church the defenders had not departed from that doctrine. Some held, that there was no form of government imposed on the 1 Last Testimony, Appx. p. 201. ^ Testimony of 1842, p. 68. 3 Gib's Display, p. 222. * Gib's Display, foot-note, p. 253. 316 LEADING ECCLESIASTICAL CASES Church by Scripture. There were but two forms of church government said by Protestants to be sanctioned by Scripture, — ^presbytery and prelacy. When the defenders joined themselves with a church which was solemnly bound, by adhering to the Solemn League and Covenant, to " extirpate prelacy," — that is, " church government by archbishops, bishops, their chancellors and commissaries, deans, deans and chapters, archdeacons, and all other ecclesiastical officers depending on that hier- archy, and whatsoever shall be found to be contrary to sound doctrine and the power of godliness, — it was not to be held that they, by doing so, admitted that any other form than presbytery was of Divine appointment. The defenders, as Free Churchmen, had not taken their stand on the Revolution Settlement to the abandonment of the higher attain- ments of the second Reformation. The Free Church received the whole standards of the Church, as recognised during the second Reformation, more fully than any other church ; — the Established Church, for example, received them as controlled by the law of the land, as regarded patronage ; and churches standing on the voluntary principle did not profess to receive them. The Claim of Right, which founded on the Revolution Settlement, and was one of the Standards of the Free Church, was a claim by the Established Church, and its object was to shew that what was then claimed by the Church had been guaranteed to her by the State. The Free Church, in her Act of 1 8 5 1 ,^ speaks of the period before the Revolution as one of darkness, after which she was restored, and still traced identity with the first reformed Church, though it is stated that on the Revolution Settlement, " various circumstances may be pointed out as hindering the Church from realising fully the attain- ments that had been reached during the second Reformation;" and after stating sundry facts, " Thus the Revolution Settlement failed in adequately acknowledging the Lord's work done formerly in the land ; and it was, besides, in several matters of practical legislation, very generally considered by our fathers at the time to be defective and unsatisfactory." This could scarcely be called standing on the Revolu- tion Settlement. The case of Toberdony, founded on -by the pursuers, was not of authority, being decided on the evidence of conflicting affidavits, — a mode of proof perfectly inconsistent with, and repugnant to, the law of this country. The other grounds of difference between the Secession and the Free Churches were unsupported by argument. The complaint that the pursuers were compelled to adopt the Claim, Declaration, and Protest, or lose their chapel, was not even supported by an averment that these documents contained what the pursuers considered false. The hardship was upon the defenders — who still adhered to the doctrines of their Church — ^if deprived of their chapel, because they, as was a fundamental principle of the Covenant, strove after uniformity, and joined themselves to the first free, faithful, and reforming Assembly of the Church of Scotland, to which those fathers of the Secession, so much revered by the pursuers, appealed in their first protest. ' Free Church Authorised Standards, pp. 9-10. DECIDED IN THE COURT OF SESSION. 317 The judgment of the Court was delivered by LoBD Wood. — In the consideration of this case we have had the bene- fit of the able note, subjoined to his interlocutor, by the Lord Ordinary, and of full and excellent arguments, oral and written, both upon the case as it was presented to his Lordship, and upon a separate view of it ; and having regard to the nature of the points which have been raised, and to the necessity of quotation from authorities and documents, it cannot but be anticipated that the opinion of the Court, which I am now to deliver, must extend to a more than usual length. The question to be decided has originated in the union, effected in 1852, between the " Free Church of Scotland " and " The Synod of United Original Seceders." It has regard to the right of property in the chapel and other subjects, which, before the union, belonged to the congregation of United Original Seceders'at Thurso. The pursuers and defenders were members of that congregation ; and the matter in issue under the record is, for behoof of which of the competing parties the property of this chapel and others is now held by the trustees in whom it is feudally vested 1 This is purely a question of civil patrimonial right. But, as observed by Lord Moncreiff in Craigie v. Marshall, 25th January 1850, — "in extricat- ing such a question, it may sometimes be necessary for the Court to take some view of questions of a different kind — questions of religious principle, or ecclesiastical foundation, in the parties claiming such property. And when this is necessary, it is competent, and consistent with the practice in other cases, as laid down by Lord Eldon in the case of Craigdallie, that the Court should take cognisance of such questions as matter of fact, but only to the effect of clearing the question of patrimonial right." But still it is only as matter of fact that they are to be dealt with. It is not within the province of the Court to give any opinion upon the soundness or reason- ableness of any of the views — whether in regard to doctrine or ecclesi- astical poUty — entertained by either of the parties in the cause ; and we shall anxiously abstain from doing so, desiring it to be understood that, by any statement which may appear to have that complexion, nothing of the kind is intended to be conveyed. Upon this point we subscribe to everything that was said by the late Lord Justice-Clerk and Lord Mon- creiff, in delivering their opinions in Craigie v. Marshall. The four ministers with whom the secession of 1733 originated, or the fathers of the Secession, as they are designed in the pleadings, Erskine, Wilson, Moncrieff, and Fisher, having been deposed from their charges, and declared no longer ministers of the Church of Scotland, by an Act of the Commission of the General Assembly, they concurred in a protesta- tion and appeal, dated November 16th, 1733, which set forth their adher- 318 LEADING ECCLESIASTICAL CASES ence to "the principles of the true Presbyterian Covenanted Church of Scotland in her doctrine, worship, government, and discipline," — the grounds of their complaint against the proceedings of the prevailing party in the Church Courts, who, it is declared, " are carrying on a course of defection from our reformed and covenanted princples," — and the reasons generally of their secession. And the document closed with this appeal : " And we hereby appeal unto the first free, faithful, and reforming General Assembly of the Church of Scotland." — (Gib's Display of the Secession Testimony, i. 345.) After this a Secession Testimony, or Eeasons for their Protestation, were framed, and subsequently there came to be an enlargement of the Testimony in a public or judicial state of it, " as a banner displayed for the truth, or as a standard set up for gathering and uniting the friends of our covenanted Eeformation." — (1 Gib, pp. 50, 51.) This was agreed to in December 1736, and published with an introduction in March 1737. Another Testimony was published in 1827, which was a renewal of that of' 1736, and a declaration of adherence thereto, as more particularly appears from question 6th of the formula; — and this Testimony of 1827 was followed by another Testimony in 1842, which, with a few unim- portant verbal alterations, is merely a reprint and republication of the Testimony of 1827. These documents constitute the standards of the Secession, and to the more important principles which they embody reference will be hereafter made. The grounds on which the ^Free Church vindicated their separation in 1843, had relation to alleged encroachments of the civil power on the internal government and administration of the Church in matters held to be exclusively within the province of the Church, its oflSce-bearers and members — grounds different in character from those on which the separa- tion of the Secession proceeded. Still, it may be that the two bodies nevertheless came to hold the same fundamental views on doctrinal and ecclesiastical matters. That is for subsequent consideration. Por the purposes of the present case it is not necessary to trace in detail the history of the Seceders after their secession, or the different splits or divisions or reunions which have taken place in the body. Suffice it to say, that the Associate congregation at Thurso, as it is designed in the title of May 1796, by which the heritable subjects in question are held in trust, was admittedly represented, at the date of the proposed union with the Free Church in 1852, by what had come to be called the Congregation of United Original Seceders at Thurso in connection with — as it was denominated — the " Synod of United Original Seceders." The proposal for a union of the two bodies was carried in the Associate Synod DECIDED IN THE COURT OF SESSION. 319 by a majority of one, by a resolution come to at a meeting of the Synod on the 29th April 1852 — thirty-two of the members present voting for the resolution, while thirty-one members entered a protest against it. In terms of the protest, the minority of the Synod met as a separate body, holding themselves still to constitute the Synod of United Original Seoeders ; and they have since continued to act as the Synod of Original Seceders. The proceediQgs of the Synod became, of course, immediately known to the different congregations, and in. several of them a division took place on the same grounds as led to the division in the Synod. Of these the congregation of the United Original Seceders at Thurso was one. The minister and the majority of the congregation — which, however, admittedly, only exceeded the minority by a very small number — came to a resolution to unite with the Pree Church, the minority dissenting and protesting ; and the minister being in possession of the chapel, it was retained by him and the portion of the congregation favourable to the union. This led to the present action at the iastance of the pursuers — thirty- two in number, and forming a part of the minority of the congregation — against the defenders, forming that section of it, or of its male communi- cants, who in 1852 united with the Free Church. Each party claims the property of the chapel. The main and leading conclusion of the summons is to have it found and declared that the chapel and other subjects, belonging to or held in trust for the Associate or Original Secession Congregation of Thurso, now " belong to and are held exclusively for the pursuers and those who may adhere to them and maintain the principles and doctrines maintained by the body denominated Original Seceders, in connection with the said General Associate Synod of Edinburgh, or Associate Synod of United Original Seceders ; " and that " the defenders, or such of them who have ceased to be members of the Associate Congregation of Thurso, in connec- tion aforesaid, by becoming members of the body called the Free Church of Scotland, have in consequence amitted, lost, and forfeited all right and title to the said subjects, and kirk or chapel or meeting-house, and manse erected thereon, and whole other property of the said congregation." There is a subordinate or alternative conclusion to have it found and declared, " at least that the defenders have no right to deprive the pur- suers, who decline to become members of the said Free Church, of the proper use and enjoyment of the said kirk or chapel or meeting-house, and other subjects before mentioned." To these all the remaining conclusions are merely ancillary ; and the alternative conclusion itself, with whatever view it was inserted, is in truth only a lower way of putting the case of the pursuers, and substan- 320 LEADING ECCLESIASTICAL CASES tially leading to the same result as the primary one. The question really involved in the action, and which is sought to be determined by it, is — To whom does' the property of the chapel belong, having regard to the terms of the trust title on which it is held, and to the course taken by the defenders in uniting with the Free Church 1 Now, with reference to that question, and before directing attention to the terms of the title, it will be proper to advert to a representation and appeal with which the resolution of the Associate Synod approving of the overture, which formed the basis of the union with the Free Church, was accompanied, when laid before the Assembly of that Church, and to a declaration contained in the Act of the Free Church anent the union, and to consider the consequences thence resulting. The representation and appeal embodied the following statement : — "While, therefore, we freely accede to all the principles of the Free Church as ours, we beg it to be understood that we desire to be received as adhering to the original standards and constitution of the Church of Scotland, not only as asserted and vindicated in any of the Acts and Declarations of the FreeChurch, but also as asserted and vindicated in our own Testimony, to all the principles of which we stiU adhere." Let it be observed that there is no such declaration in the overture, which was approved of by the resolution of the Synod. It forijis a condition inserted in the representation and appeal, in order, apparently, to save a right which might otherwise have been held to be surrendered. In accordance with the statement so made on the part of the Synod, there was incorporated in the Act of the Free Church this declaration : — " The General Assembly cordially agree to the proposal of re-union made in the said representa- tion and appeal, and fully consent that their brethren continue free to hold the views therein set forth, and to enjoy the liberty therein claimed, in subordination to the government and discipline of this Church." Such being the reciprocal statements or declarations of the parties ia consummating the union, what was its effect upon the position and status of the existing members of the Secession after their admission into the Free Church, and upon the Secession generally, and the congregations of which it was composed ? As a distinct religious body, an end was put — so far as the majority of the Synod, in effecting the union, could do so — to the existence of the Secession. It was as representing the Original Seceders that they applied for reception into the Free Church ; and it was in pursuance of the original appeal to the first free and reformed Assembly of the Church of Scotland that the representation and appeal to the Free Church Assembly was presented ; and it was on that footing that the union was effected. The Seceders, by this movement, abandoned their position DECIDED IN THE COUET OF SESSION. 321 entirely, and became merged in the Free Church. Assuming the union to be fully carried out, no difference could possibly be thenceforward alleged to exist, except in so far as the statements of the respective bodies above referred to might have any saving virtue. There was but one church, and one system of discipline and government. The Judicial Testimony of 1736, and its renewals in 1827 and 1842 — the standards of the Secession body — never received the sanction of the Free Church, and after the union they ceased to be authoritative. They no longer consti- tuted the badge of any separate sect or denomination of Christians. This is clear from the very nature of the transaction ; and no more explicit statement of the result of the union could be made than was done by the distinguished mover of the incorporating Act of Assembly, who introduced the subject, by observing, inter alia, that the step was the extinction of the Secession in Scotland, and that the union " put an end to the existence of any body of Seceders, properly so called, from the Church of Scotland." This being the effect of the union on the ecclesiastical body, it is obvious that the condition inserted into the representation and appeal of the Synod, and its recognition in the Act of Assembly, could have no operation except in reference to the existing members of the Secession entering into the union. Even as to them the reserved privilege could only be exercised subject to the discipline of that Church of which they were now recognised members. Beyond this it had no force. It had none whatever on the defunct ecclesiastical body, or any congregation assenting to the union. Saving to the above extent — the bearing of which upon the two views that may be taken of the question at issue will afterwards be considered — the condition was a dead letter. The Free Church and its standards became those of the Secession. These the Secession adopted — to them they adhered — and to them alone could any appeal be made, whether in regard to tenets or discipline, or ministerial qualifications ; and the churches and congregations of the Secession, ceasing as such to exist, became churches and congregations of the Free Church. All this being undoubted, and holding the trust, upon which the chapel in question stands, to be by the title simply a trust for the con- gregation of United Original Seceders, it is manifest that, to secure success in their assertion of right to the property of the chapel, the •defenders must maintain that the Act of the majority of the Synod alone, or the resolution of the majority of the congregation, or the two together, had power entirely to extinguish the existence of a seceding congregation for whose behoof the property was held in trust, and to carry the chapel with the majority, so as to convert it thenceforward into a chapel T 322 LEADING ECCLESIASTICAL CASES belonging to, and to be occupied by, a congregation of the Free Church, and to be called, as it has been called, the Free North Church' of Thurso : — Or, assuming the burden of proof to be, not with the defenders, but with the pursuers, the latter will establish their case if it can be shewn that their position as Seceders has not been affected by the Acts of the superior ecclesiastical body, or the majority of their fellow-members in the congregation of Original Seceders at Thurso, and that they are still entitled to vindicate their status and rights as members of that congrega- tion. If this last be the true view, the defenders must be regarded in the light of individuals who have voluntarily left the congregation, and lost their right and interest in and to the ecclesiastical fabric. As has been already stated, the question is one exclusively of civil riglit, of right to the property of the chapel and other subjects at Thurso ; and in its solution the terms of the feudal title upon which it is held, viz., the disposition in trust, dated 30th May 1795, and relative sasine, dated 7th February, and registered 6th March 1811, is matter of primary con- sideration. The conveyance bears to be in favour of certain individuals named, or the major part of them, " and their successors in office for the time being, or such as they or the survivors of them should legally assume into the right of the subject, such assumption being always in virtue of the choice of the congregation, secluding heirs and assignees of all or either of them, as managers and trustees for the said Associate Congrega- tion of Thurso in connection with the General Associate Synod of Edin- burgh, and under the ministerial inspection of the now deceased Eev. Eobert Dowie, late minister of the Gospel, and his successors in office for the time being, in connection with the said General Synod," the designa- tion of the said congregation and Synod being, at the date of the union, as before explained, the Congregation of United Original Seceders at Thurso and the Synod of United Original Seceders. The instrument of sasine from which this narrative of the disposition is taken — the dis- position itself not being produced — bears sasine to have been given to the individuals named, " as managers and trustees foresaid." The trust property thus stands upon a feudal title, which vests the beneficial interest in the members of the congregation. It is not a trust for behoof of the general sect or ecclesiastical body with which the con- gregation was in connection. Descriptively, it is set forth that such connection subsisted, but that is all. No control over the property is conferred on the general body. The right and interest are vested exclu- sively in the congregation, and the trust is created for their behoof, and must be so managed and carried out. In this respect the present case is essentially the same with Craigie V. Marshall (25th January 1850), where the title to the ecclesiastical DECIDED IN THE COUET OF SESSION. 323 fabric bore to be in trust " for behoof of the members of the foresaid Associated Congregation in Kirkintilloch, commonly called Seoeders, and presently in connection with the United Secession Church." The only noticeable differences between the two titles are, that in the latter the words used are, "for behoof of the members of the foresaid Associate Congregation," instead of "for the said Associate Congregation," and the insertion of the word " presently " before " in connection with," — differ- ences which are plainly wholly immaterial, and the omission of which could not have, in any way, influenced the decision pronounced in the case of Craigie v. Marshall, either with regard to the legal import of the title or in any other respect. That decision must therefore be accepted as of ruling authority upon that point, and of great authority upon all the other matters which it involves, for the case is one which received most deliberate and anxious consideration. Now, upon the import of the title in Craigie v. Marshall, as being one in trust for behoof of the congregation exclusively, the Court entertained no doubt ; and if in that the judgment was well founded (which we apprehend it to have clearly been), it is unnecessary to say anything in proof that no other construction can be justly put upon the title in the present case. Then, proceeding upon the title as constituting a trust for the con- gregation, the principles recognised by the Court, and given effect to in their decision, were — (1.) That when the church or ecclesiastical building is held in trust for any particular congregation, the resolutions adopted by the Synod or governing body were not obligatory on the congregation, so as to compel the members to go along with the governing body, at the peril, if they refused to do so, of losing their right and interest in it ; and (2.) That the test of retention or loss of the proprietary right and interest in such cases, was adherence to, or departure from, the principles, held by the congregation for whose behoof, in beneficial right, the feudal property was held in trust. (1.) The first of these principles was given effect to, and the resolution of the Synod found to be of no controlling power over the individual congregation in circumstances very remarkable, inasmuch as all the members of the governing body, with the exception of Dr. Marshall him- self, concurred in the resolutions ; and this being the only difference of opinion, there remained, & facto, no Synod or governing body with which, after his separation from the United Secession Synod, Dr. Marshall could state his congregation, or those members of it who adhered to him and opposed the union with the Belief Church, to be con- nected. A very different state of things is presented in this case, where, as has been seen, the resolution was carried in the governing body by a 324 LEADING ECCLESIASTICAL CASES' bare majority of one, and where the minority have declared their adher- ence 'to the original principles of the sect, and continue, de facto, to be a Synod or governing body with which those congregations that hold the same views with the minority of the Synod, may, and actuaUy do, defado, remain in connection. From this it follows that the mere fact of the union having been carried in the Synod cannot affect the deter- mination of this question of property. (2.) Then, as regards the second principle adopted in the case of Craigie V. Marshall, it is merely the enunciation of the views acted on by the House of Lords in the case of Craigdallie v. Aikman. The application of that principle, as it was carried out and given effect to in Craigie v. Mar- shall, to the case now before the Court in the circumstances it discloses, presents the first subject for enquiry in the solution of the question here at issue. Adverting to the power of a majority, the Lord Justice- Clerk, in the case of Craigie v. Marshall, reviews all the authorities, and fully explains how the law, in this respect, has been affected by the decision of the House of Lords in Craigdallie v. Aikman. The error in the older Scotch decisions is shewn to have been, the taking as a rule that the majority afforded the only test for deciding with whom was the property ; while it is no more than a fact — of importance, no doubt, and to be kept in view, as throwing the onus on those differing from them — to establish that they can no longer claim the character, to keep up which was the purpose of the trust. This error, his Lordship explains, "involved a power in the majority against the first principles in the law of trusts, to divert from the purpose for which it could be shewn to be clearly held, property bought or built with common funds for that original purpose. The sole question in every such case is, whether the congregation itself, or what portion, adhere to the principles, the maintenance of which formed the purpose of the original trust?" To the same effect Lord Moncreiff observed, — "In such questions arising between the members of a congregation originating in supposed differences of religious principle, the civil right is to be deter- mined by the question, whether the one party or the other is adhering to the original principles on which the society was formed or the congrega- tion founded ? " And afterwards his Lordship quotes, with approbation, the principle stated by Lord Medwyn in Smith v. Galbraith, 10th March 1837, thus clearly, — " If we can find out what were the original principles of those who originally attended the church or chapel, we must hold the building appropriated to the use of the persons who adhered to the same original principles, though these be a minority of the congregation." On this point, we may also notice an observation by Lord El don with regard to the rule in the law of England, in his opinion in CraiigdaUie DECIDED IN THE COURT OF SESSION. 325 (1 Dow, p. 16), — "If," said his Lordship, " there was no such provision," that is, no provision for the case of a schism, " in the instrument (the trust title), and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society at the expense of a forfeiture of their property by the Cestui que trust, for adher- ing to the opinions and principles in which the congregation had originally united. He found no case which authorised him to say that the Court would enforce such a trust, not for those who adhered to the original principles of the society, but merely with a reference to the majority ; and much less if those who changed their opinions, instead of being a majority, did not form one in ten of those who had originally contributed, which was the principle here." Now, keeping in view the law as thus laid down, and acting upon the test by which, agreeably to it, the right to the property of the congrega- tion is to be determined, what is the result to which it leads in the present case 1 In the circumstances, can the pursuers be deprived of the right to possession of the chapel at Thurso, and the defenders be maintained in it, to be used as a chapel of the Free Church, which they have joined 1 Or, in other words, can the defenders be supported in resisting the conclusion of the action, that they have forfeited or lost all right to the chapel, and that, by the trust title, it is now a trust under which the beneficial interest rests in the pursuers ? It is manifest that no result favourable to the defenders can be reached on the ground that there has been any, the slightest, departure by the pursuers from the Secession system in any particular whatever. For it is an important and undeniable feature in the case, that the pursuers have not departed one iota from the principles or from the separate Testimony and distinctive designation of the communion, as it stood while they were yet a united body. On the contrary, they have — obstinately it may be, but conscientiously — adhered to them in all their original purity and inten- sity, unqualified and unabated, and desire to do so, without admixture or combination with any other religious sect or body. It is on the part of the defenders that there has been a departure, if any, from the prin- ciples of the Secession, and abandonment of the name and separate Testi- mony of the once united body, so far as that is to be inferred from their union with, and mergence in, the Free Church. But the ground of the pursuers having in any way fallen from their original profession wholly failing the defenders, is there any other on which their defence and claim to the chapel can be successfully founded 1 If any fundamental difierence, any disagreement in one or more essential points oi, doctrine or religious view can be proved to exist between 326 LEADING ECCLESIASTICAL OASES the Secession and the Free Churcli, we did not understand it to he dis- puted—and, at all events, looking to the law as laid down in Qraigie v. Marshall, it could not be so successfully — that the test of adherence to, or departure from, the original principles of the Secession, would be appU- cahle and decisive against the defenders' pretensions. In such circum- stances, on the contrary, we understood it to be conceded, that although there was the vote of the majority of the congregation declaring for the union, and not merely the resolution of the majority of the Synod (by which alone, it has been shewn, the rights of the congregation would not be affected), the voice of the minority could not be thereby absolutely overpowered, and the property withdrawn from them and transferred to the defenders, as a congregation of the Free Church. But, then, while the defenders so far acquiesced in the principles recognised in Craigie v. Marshall, their contention seemed to be, that, in the case supposed, there was room for holding that the voice of the majority is not conclusive on the question of property, and for the applica- tion of the test of adherence to original principles ; because one of the elements of the case is, that it could be instructed that between the religious body to which the majority of the congregation belonged and the separate body with which a union was to be formed, there was a difference in essentials, so that the majority in uniting with that body had, on their part, departed from some fundamental principle or doctrinal precept of their own sect or body ; but that, where that was not the fact — when it could not be shewn that the majority in uniting, any more than the minority in resisting a union, were departing from any such principle or precept — the law would not disregard, but would recognise the resolution of the majority, as decisive of the right to the feudal property, held in trust for the congregation. It is then to be considered whether the view of the law thus taken by the defenders is a correct one ; or whether — in the situation in which the pursuers and defenders are respectively placed — the latter, a majority of the congregation, joining the Free Church, and the former, a minority, remaining precisely as they were at the period of the union — there are not circumstances which, upon authority or principle, and apart from any enquiry as to departure or not, by the defenders, from the original doctrines or tenets of the Secession body, or the instruction of that fact, entitle the pursuers to vindicate a proprietary right in the chapel at Thurso. Now, had the pursuers here been a majority of the conorewation instead of a minority, a direct affirmative answer to the question as last put would, we apprehend, be afforded by the judgment in the case of Craigie V. Marshall. If, in the fact, that the pursuers in the present case are a DECIDED IN THE COUET OF SESSION. 327 minority only of the congregation, there be not enough to exclude its application as a precedent, there is nothing else. It would then he a positive authority in their favour. In Craigie v. Marshall, the Secession Synod, with the exception of one member, had resolved to unite with the Eelief Church. But a large majority of the Secession congregation at Kirkintilloch were against the union, a minority only approving of, and concurring with the Synod. In an action at the instance of the minority, claiming right to the chapel, against the majority, the Court held that the Synod had no power by its decision to control the congregation. Thus the plea of the minority, that the resolution of the Synod was conclusive, was entirely overruled. Eut then the pursuing minority contended that unless it could be established that in joining the Eelief Church they had departed from some of the original and fundamental principles of the Secession, which they contended they had not done, the answer for the defending majority ought to be repelled, and the claim of the pursuers to the property of the chapel negatived. Now, upon this plea, the judgment was in favour of the defenders .(who, however, no doubt, were a majority of the congregation) ; and upon this ground : that, as respected them, it was no point in the case, and could not be, that they had in any manner departed from the doctrines or religious principles which were held by the Secession congre- gation at Kirkintilloch, or by the Secession Church with which they were connected ; on the contrary, they stood exactly as they had ever stood, and as they stood before any proposal of union with the Eelief body had been tabled : That, that being the case, it was clear in law that their going along with the Synod in their projected change, or their separation from it, w^as of no manner of consequence : And that, if so, if the resolu- tion of the Synod for a union had no power to control the defenders as members of the congregation, then it was not necessary, in order to their making good their claim to the chapel, or invalidating the claim of the pursuers, that it should be established that the pursuers, who alone proposed any change in the condition of the congregation, had by that change departed from the original principles of the Secession : That, waiving all enquiry of that description, it was enough for the defenders to say, as in a question with the pursuers — parties who had changed their position, withdrawing themselves from the Church to which they belonged, and uniting with another distinct sect of Christians — that adhering, as they, the defenders, did, unmoved and without wavering, to their original principles, and the Testimonies in which they were set forth and unfolded, and for the vindication of which the members of the Seces- sion originally, for themselves and those following them, came out from the Establishment and formed a separate body with a distinctive designa- 328 LEADING ECCLESIASTICAL CASES tion, they could not be compelled to go into a union — or, if they refused, lose the property held in trust for the congregation — hy which that pro- perty would be converted into a Eelief Church, their name and existence as a Secession congregation extinguished, and the congregation, as it then stood, and all its future members, subjected to the discipline and judi- catories of a distinct religious sect, of a different denomination, not unqualifiedly adopting the original Testimonies, standards, and principles of the Secession, and therefore to be presumed not to be animated by the same feelings, and into which, nevertheless, the Secession would be absorbed, and, as a consequence among others, their power annihilated of prosecuting as a separate body, and with the intensity and effect which could — as was originally conceived, and they continued to believe — be thereby alone attained, the views proclaimed in their Testimonies, to which, in all their purity, sternness, and rigour, they stiU, with faithful tenacity, clung : — In short, that, applying the test of adherence to or departure from original principles, it was fully satisfied, so far as regarded the portion of the congregation consisting of the defenders, and any oniis which in reference to it might lie upon them, discharged by the fact, on the one hand, of their retaining unchanged, and desiring to continue to retain, their existing position as a separate body, with their distinctive name, and special Testimonies to their principles and doctrines ; and, on the other, that, by a union with the Eelief Church, the position of the pursuers was materially altered, as would also be that of the congregation by going along with them, inasmuch as, by the union, they would cease to be Seceders, and their name and existence as Seceders would be extinguished, and their Testimonies abandoned, and they would become a congregation of the Eelief Church, subject to its ecclesiastical govern- ment and discipline ; and that such being the case there was in these things alone enough, without any other element, to protect the dissenting members from being bound to accede to the union, under the penalty of forfeiture or loss of the church building. Now, although the cause in which this course was taien was one where the defenders, the parties resisting the union, were a majdrity, and those insisting for it a minority, of the members of the congregation ; and although it thence naturally happens that, in their general expression, some of the observations in the opinions delivered may seem to refer to that particular state of fact, and to point to its being in it only, that the Court held that enquiry, — whether or not those supporting the union would, by entering into it, dissent from some fundamental tenet or doctrine of the Secession, — could be dispensed with, we conceive that in principle the views announced in the opinions, and the grounds on which the judgment went, could not be intended to be so limited in their scope. DECIDED IN THE COUET OF SESSION. 329 and not also to apply to the case where the members resisting the union ■were only a minority of the congregation. A resolution to form a union with a separate body is not an act of management properly falling to be regulated by the voice of the majority of the congregation. It is one affecting and altering the use, possession, and destination of the property of the body. The principle recognised by the Court in Craigie v. Marshall is founded on the contract of parties in relation to which the trust of the property belonging to the congrega- tional body was constituted, and its legal consequences, which secure those strictly adhering to it from being affected in their rights by the acts of those who would innovate upon its terms and purposes. There being a majority of the congregation opposing the union may bespeak for their resistance a more ready acceptance. But it can go no farther. It cannot form a fact essential to the opposition being successful without the proof of departure in fundamentals on the part of those advocating a union and desiring to drag others into it along with them. On the contrary, the principle takes the case out of the class to be ruled by the voice of a majority. According to its obvious spirit, the like circumstances and reasons which are of sufficient potency to entitle an adhering and resist- ing majority to refuse to join a minority in a union with another religious body, without its being necessary to establish that the minority by the union would be departing from original principles, must also be available to an adhering and resisting minority. If, looking at the matter in a point of view natural to a member of the Secession, although to others it may seem capricious or unintelligible, a majority may, to use the language of the Lord Justice-Clerk in Craigie V. Marshall, say with effect, without requiring to instruct any departure on the part of their opponents from fundamental principles, — "The desire to keep separate — to keep up one sect apart from all others — as in itself a good way strictly to maintain certain peculiar opinions, especially if of a severe and stern character, to stand by a name as recalling for ever the struggle in which the sect had its origin, and fixing down, as it were, in stern, exclusive, and deeply graven characters, the aspect and tone of language even, as well as of devotional sentiment, which th^ name forces on every one — the desire to prevent the risk of defection in faith or in zeal for that rigorous exposition of doctrine, which the very name of such a sect as the Secession may be thought to guard against by a sort of standing reproach to all who do not utter the very language of Erskine, Wilson, Fisher, and Moncriefif, and the resolution to make no union with any body, but steadily to require all to join distinctly to the name of the Secession, in order to proclaim that as it was formed in 1733 so it remains, and on that footing that all must enter as members thereof with- 330 LEADING ECCLESIASTICAL CASES out separate pretensions, notions, or origin : Such a desire may be unreasonalDle — it may be to many unintelligible— it may appear idle caprice : But it is tbe first privilege of every congregation of such a body — it is their right — it is a desire springing from attachment to the causes which led to the formation of the church, and the constant commemora- tion of which, as the true (and they may think the most important) dis- tinctions from all other churches, they may deem the best safeguard for the maintenance of the principles involved in4hese causes of secession : " — If such considerations could have the weight which was given to them in the mouths of an opposing majority — that is, of relieving them from any necessity of shewing that there was a difference in some fundamental principle between the Secession and the body with which a union was to be formed, — and as we read the case of Craigie v. Marshall, it was on such considerations, or others of the like kind and spirit, that the Court proceeded in so finding, — must not the same considerations have operated with equal power if they had been appealed to and insisted in by a minority ? We apprehend they must, for it appears to us that it is from their nature and character they derive their whole force and vitality, and their value as a ground or principle of judgment in favour of the members resisting a union, and not from the number of those who give utterance to them. Consequently, we think that although the parties who opposed the union, in Craigie v. Marshall, had been a minority instead of a majority of the Kirkintilloch congregation, the same judg- ment, and upon the same grounds, would have been given as was pro- nounced by the Court. Therefore, in our view of that case, it may be justly founded on by the pursuers as an authority in their favour. Por, except in the difference arising from the parties opposed to the union, being, in the present instance, a minority of the United Secession Congregation at Thurso, we can discover no peculiarity to raise any distinction between the two cases hostile to the plea of the pursuers, but rathep. the reverse. But, supposing that difi'erence to preclude the decision in Craigie v. Marshall, or the opinions delivered, from being founded on as of authority to the effect contended for by the pursuers, we are of opinion that, on principle, and for the reasons we have already assigned, the views that there received effect ought equally to be adopted as a ground of judgment, where the opposition to a union is made — as it is here — by a minority. The material thing is the adherence, whether by a majority or minority, to the Church as originally constituted, and the refusal to give up the name of the body and its Testimonies as those of a separate and distinct sect — having characteristic features of its own, and formed for the purpose of independently prosecuting with earnestness certain views in a particular DECIDED IN THE COUET OF SESSION. 331 manner held to be of paramount importance, wliile by a union they would he absorbed into a different ecclesiastical body not acknowledging their Testimonies, but having Testimonies of their own, and influenced and actuated by their own impressions or convictions of what is necessary to be defended, promoted, or condemned, in prosecuting the cause of religion. We therefore hold that the principles and views recognised in Craigie v. Marshall are sound in themselves, and, when duly followed out, legiti- mately lead to the same result where it is a minority of the congregation that refuse to unite, and thereby sink their distinctive name and Testi- monies, and very existence, in a separate sect, which was arrived at where it was the majority that did so. But further, and in the present case, it may be observed, that, apart from the fact of the pursuers being a minority of the congregation, they apparently stand in a more favourable position than did the majority in the case of Craigie v. Marshall. Por, in the first place, while in it there might be some things in the circumstances, which in themselves were suggestive that the Secession and Eelief Church were at variance upon essential points (but which unquestionably did not form an element in the views which the Court acted upon, any consideration of such matter being expressly waived as unnecessary for judgment), it is not to be over- looked that here, as already stated, the majority of the congregation only outnumbers the minority by five or six at most, and that the majority of the Synod who resolved upon a union, consisting of 32, was so small, that it left 31, who, de facto, continue to be a Synod or governing body, with which those congregations, or those members who have not joined in the union, remain in connection. And, in the second place, the pur- suers well may, and do accordingly, refer to the respective Eepresentations and Declarations of the parties by whom the union was formed, the terms of which have been previously quoted. These, they say, they cannot receive as calculated to satisfy their conscientious scruples, or to give peace to their minds in -abandoning in any respect the precise ground on which they now stand. They do not comprehend how the provisions made are to work out their proposed objects ; but, to their minds, they go much farther. They look to the manner in which they came to form part of the basis of union, which marks that it was felt to be necessary that it should be so qualified ; and, therefore, shews that even the approvers of the union were not satisfied of there being an identity in the doctrines and principles of the two churches, as evidenced by their standards, for otherwise no such saving clause could have been required. The pursuers, therefore, say, that these reciprocal declarations disclose enough to point out the danger to the life of the Secession TestimonieSj and to tjhe earnest and effectual prosecution of the ends which, by these 332 LEADING ECCLESIASTICAL CASES Testimonies and tteir bond of connection as a separate and independent body, were intended to be promoted (and for which they have themselves hitherto struggled, and are resolved still strenuously to struggle), that would be involved in a union with the Free Church even during the lives of the now existing members of the Secession, and among others during the lives of the existing members of the congregation to which they belong ; while beyond them they only serve as a warning that it wiU operate to the destruction of the means, which, by the zeal of their forefathers, were afforded — and which they hold it to be their right and their duty to do all in their power to preserve unimpaired — for the enforcement and propagation of these religious views and principles by all by whom in future they may come to be entertained. Now, in this state of matters, the pursuers contend — and, as it appears to us, with much force and justice — that to a union so brought about, exhibiting in its very basis the consciousness on the part of those who resolved that it should take place, of the existence of a difference, or the possible existence of a difference in principles between the two bodies, rendering necessary such a reservation to secure — as they might imagine it would do — their being precluded from asserting their own principles ; or in other words, to provide against their being involved by the union in a dereliction and abandonment of these principles, they (the pursuers) cannot, in justice, be required to concur, at the cost, if they do not do so, of losing all right to the church and other property of the congregation, unless they can instruct a disagreement in some material or essential principles between the Secession and the Free Church. They maintain, on the contrary, that they are entitled to withhold their consent without being driven into any discussion of whether de facto there be such difference in regard to this or that particular doctrine or precept, the apprehension of which difference generally, at least, although in what particular is not specified, was so impressed upon the minds of those by whom the conditions of the union were settled that they found themselves compelled to guard their resolution of approval of it with the qualification in question. Let the case be put, that there was an action at the instance of the defenders to vindicate the property of the church building, by having it declared that the trust of it was now a trust for their behoof, — could the Court, the pursuers ask, give ear to such a demand, and find, in the circumstances, that the pursuers (the defenders in the case put), being a minority of the congregation, could only retain any right in the subject either by concurring in the union, or upon the condition of its being proved that, in some particular doctrines or tenets, there was a positive adversity between the Secession and the Free Church ? And, if not then — as the pursuers represent — this is what, in the present action, DECIDED IN THE COURT OF SESSION. 333 the case really resolves into ; inasmuch as, although, the pursuers are in petitorio, the issue raised by the defenders' pleas in law is substantially the same as if there were a declarator at their instance concluding to the effect above mentioned. Upon this view of the case we shall not further enlarge. It has, indeed, perhaps been dwelt upon at greater length than was necessary, seeing that we do not consider success in establishing it necessary to the pursuers prevailing in their action, and do not mean that our judgment should be rested on it alone. For assuming that, in order to make out a case against the resolution of the majority of the congregation to unite with the Free Church, it must be instructed that, on some fundamental principle, doctrinal precept, or ecclesiastical arrangement, there is a difference between that Church and the Secession, — that there is an essential disagreement in doctrine, or tenets, or religious views, or forms of ecclesiastical government, so that to join the Free Church would involve a dereliction and abandonment of some of the peculiar principles on which the original Secession Church was based, we think that such appears to be truly the state of the fact ; and that, in so far as the ontis may rest upon the pursuers (but which, with all the documents before the Court to which the parties respectively appeal, is a point rather of form than substance), they have discharged themselves of it. Now, whether or not those things which are contended by the pur- suers to be of a really material or substantial character are right or reasonable in themselves, we need hardly repeat, is a matter with which the Court has nothing to do. The sole question is, are they of that character, according to the views on which the Secession acted in sepa- rating themselves from the establishment, as evidenced by the judicial declaration of their principles in the Testimony of 1736, which have ever since been adhered to by the section of the Secession Church to which the pursuers belong ? Do they form material elements iu their bond of union not to be laid down, or ceased to be expressly protested against, or openly and in positive terms approved of, without more or less loosening the tie, and weakening and prejudicing the prosecution of those ends, for the more effectual furtherance of which the Secession thought it essential that they should depart from, and remain out of, the church to which they originally belonged? And then, if the substantiality or fundamental nature of the points on which the pursuers found has been instructed, it will next have to be considered whether or not, as respects these points, there is truly any such material or intelligible difference between the Secession body and the views and principles of the Free Church as ought to prevent their union, or can entitle the pursuers, on the grounds insisted in by them, to claim the property of the chapel, etc., at Thurso. 334 .LEADING ECCLESIASTICAL CASES The oliurch formed by the Original Seceders is essentially and funda- mentally a protesting church. It is based on the raising of a protest or testimony against the defections of the Establishment from the principles of the Covenanted Keformation. Accordingly, both in the first or extra- judicial Testimony, and the judicial Testimony of 1736, and the Testimonies of 1827 and 1842, there is an explanation and profession of these principles as adhered to by the Secession body, and a disapproval and condemnation of the several steps of defection both in former and later times, as national sins, contrary to the Word of God, the Confession of Eaith, and their solemn covenanted engagements. Therefore, it was not in order to a mere recognition generally of the doctrines of the church, or of its standards, or of the covenants, that the Original Seceders separated from the Established Church ; but that, as a united body, "they might display, keep up, and practically follow out — with what they deemed the necessary spirit of life, earnestness, and Christian activity — a special and proper testimony of approval of the doctrines and principles of the Church in the sense in which they held them, and in which sense they considered them to have been violated, and of condemnation of the defections which had taken place : And to which testimony, in its judicial form, it is accordingly — in the declaration prior to the publication of the judicial Testimony in that year — declared " both ministers and people of all ranks in this covenanted land are, by the solemn oath of God, bound to adhere." — (Gib, i. 39). Now, while there may be other points embraced by all the Testimonies that are of so important a character, and in which there is such a marked difference between the Secession and the Free Church, that (were the facts or practice of the respective churches ascertained, but on which the parties, are not at one, as, for instance, the matter of free or open com- munion) the pursuers might be entitled to rely on them in supporting their case, we shall confine our observations to three particulars, which, in the view we take, will suffice for the solution of tbe question at issue. 1st. That the covenants — the National Covenant, which is chiefly directed against Popery, — and the Solemn League and Covenant which is chiefly directed against Prelacy, and which pledges the subscribers to endeavour to bring about in the three kingdoms " uniformity in religion, confession of faith, form of church government, directory for worship and catechising;" and by which they further swear, "without respect of persons, to endeavour the extirpation of popery, prelacy (that is, church government by archbishops, bishops, their chancellors and commissaries, deans, deans and chapters, archdeacons, and all other ecclesiastical officers depending on that hierarchy), superstition, heresy, schism, profaneness, and whatsoever shall be found to be contrary to sound doctrine and the DECIDED IN THE COURT OF SESSION. 335 power of godliness ;" and which also bears that the subscribers will not suffer themselves either to make defection therefrom, " or to give our- selves to a detestable indifferency and neutrality in this cause ;" — that these covenants — the principles to be held in regard to them, the defec- ' tions from these principles, and the indignities to which they had been subjected — form a prominent feature in the Bond of Union of the Seces- sion Church, and to which a testimony was to be borne, appears to us to be indisputable. The Protestation and Appeal of 1733 has already been adverted to ; and, without stopping to notice various passages in the extrajudicial Testimony bearing upon the point, it will be found that the Associate Presbytery state the reasons for the enactment and publication of the judicial Testimony of 1736 to be, inter alia, "that no banner was judici- ally displayed for truth, and against the prevailing evils of the present time ; " " that a judicial testimony appeared necessary for the glory of God, and the information and conviction of the present generation," and so on. " And that they might thus fulfil their ministry according to their ordination vows, and according to the obligation which they, as well as the whole land, were under by solemn oath to the Most High God : " " that we shall sincerely, really, and constantly, through the grace of God, endeavour, in our several places and callings, the preservation of the reformed religion in the Church of Scotland, in doctrine, worship, dis- cipline, and government," and that we shall not " give ourselves to a detestable indifferency or neutrality in this cause, but shall, all the days of our lives, zealously and constantly continue therein." — (Gib, i. p. 52.) Then the Act, Declaration, and Testimony of 1736 itself, bears in its title to be : '' For the doctrine, worship, discipline, and government of the Church of Scotland, agreeable to the Word of God, the Confession of Faith, the National Covenant of Scotland, and the Solemn League and Covenant of the Three Nations ; " while, in the preamble, it is specially set forth that " the whole land stands indispensably bound by the most solemn covenant engagements in the maintenance and preservation of the truth of God, and the precious ordinances and institutions of Jesus Christ" — "especially, considering the present growth and spreading of dangerous and pernicious errors, and the many injuries that are done to the government and discipline of the house of God amongst us ; together with the abounding sin, wickedness, and profaneness of the present generation, and the deep security and general stupidity that prevaUs under our national sins and spiritual judgments, by all which God is highly dishonoured and provoked. His sanctuary profaned, the kingdom of His Son undermined, and the whole land involved in the dreadful guilt of apostasy from the Lord : Therefore this Presbytery find themselves 336 LEADING ECCLESIASTICAL CASES bound in duty to cast in their mite of a testimony to the many great and •wonderful appearances of the Lord for this church and land," etc.— (Gib, i. 53, 54.) Again, in the body of the Testimonies, the covenants are strongly and urgently dwelt upon ; and also in the renewed Testimonies of 1827 ' and 1842, -wherein, in language if possible even stronger than that of 1736 (Testimony of 1827, p. 142), the duties imposed by them are set forth, the sins, backslidings, and steps of defection from them complained of and deplored, and the perpetual and descending obligation of the National Covenant, and Solemn League and Covenant for maintaining and carrying on a work of reformation in the three kingdoms is declared, — the doctrines or principles contended for being, that the obligation itself passed upon all posterity, and that the declaration of its obligatory force is to be made as an important means of rendering the covenants available to the prosecution of those ends, and the remedy of those defections, which it is the solemn purpose of the Secession, by their formation into a separate church, to bring about. It would occupy much too large a space to support these statements by the numerous additional references and quotations that might be made from the different portions or heads of the Testimonies of 1736 and 1827, of which, as before mentioned, that of 1842 is little else than a repetition. Nor shall we do so at any length. To take the Testimony of 1736. Eeferring to the National Covenant, it, in the approving portion, declares that "by this solemn oath and covenant this kingdom made a national surrender of themselves to the Lord, and bound and obliged both themselves and their posterity to cleave to the truths of God, and to the observation of His laws, ordinances, and institutions" — (Gib, 56.) The like declarations are also made in reference to the Solemn League and Covenant, and by the two covenants the land is declared bound and obliged to the maintenance of the truths, principles and practice therein enjoined. And, in harmony with this, the distinctive terms are used, of the " Covenanted Eeligion," the " Covenanted Eefor- mation," the " Covenanted Church." Then, in the condemnatory portion of the Testimony, various evils are testified against as done in contravention of the covenants, which are characterised as of national obligation. The Act Eecissory is condemned as a national sin, and likewise the second Act of the second session of Parliament, anno 1662, whereby "all that was done in prosecution of a covenanted Eeformation from 1638 to 1650 is declared rebellious and treasonable " (Gib, 67-8), and the covenants as sworn to " declared to be unlawful oaths, and imposed contrary to the fundamental laws of the kingdom." And referring to the restoration of prelacy, the Testimony de- DECIDED IN THE COURT OF SESSION. 337 Clares — " all this was done by the representatives of the nation in opposi- tion and contradiction of the most solemn professions of allegiance unto the King of Zion, and the most solemn oaths and covenants that a people could come under to the Most High God." — (Gib, 69.) Further, the acts of indignity done to the covenants are testified against and repre- sented as reducing the nation to a condition " scarce to be equalled for treachery and apostasy, attended at the same time with a flood of profane- ness and immorality overflowing the whole land." (Gib. 70). ; The Testimony goes on to condemn the Act 1662, c. 5, as putting a grave-stone upon the Covenant Eeformation by its enactments against leagues and covenants, and against all that had been done for carrying on the work of the Eeformation from the year 1668, as unlawful and sedi- tious j and by its special declaration, that the National and Solemn League and Covenant were in themselves unlawful oaths, which declara- tion, as it is averred, " became one of the great sins and snares of this time j perjury is now made a chief qualification and necessary condition of all that were to be admitted to places and offices in Church and State " (Gib, p. 78). It also complains of the abrogation of the penal statutes, as introducing a boundless toleration, and being chiefly in favour of Papists. The Testimony of 1736 then proceeds to speak of the Eevolution Settlement and the Treaty of Union between England and Scotland in language strongly declaratory of attachment to the Covenants and con- demnatory of these measures, in so far as they are derogatory to the national covenanted engagements, impeaching their obligatory form, and weakening their efficacy. But to this portion of that Testimony, and also of the Testimony of 1827, we shall have occasion afterwards more particu- larly to advert. In the meantime, it stUl remains to notice, in reference to the con- demnatory portion of the Testimony, that it is thereby made an express head of condemnation of the Acts of the Assembly of the Established Church after the Eevolution, that they did not expressly approve of the covenanted Eeformation of the Church, attained unto from the year 1638 to 1650 ; "nor did they justify the wrestlings, testimonies, and sufferings of the Lord's remnant in the late persecuting times, nor has the obligation of our Covenants, National and Solemn League, and their binding force upon posterity, ever been expressly asserted by any particular Act of Assembly since the Eevolution, nor has the Solemn League and Covenant been expressly named in any of the grounds of national fasting since that time, though both these might have been expected, considering how these Covenants were so openly violated, and ignominiously burnt in the former period." — (1 Gib, p. 90.) And further, such is the anxiety to guard z 338 LEADING ECCLESIASTICAL CASES against any possible inference of the slightest assent to anything that could touch, or in the remotest degree qualify, the views entertained by the Secession of the nature and principles of the Covenants and covenanted Eeformation, and an adherence to them, that in acknowledging and approving generally of the Acts of Assembly from 1638 to 1650, and since that time, reservation is added, " in so far as they were passed for advancing and carrying on a covenanted Eeformation, and the renewed principles and constitution of their Church.'' Passing on to the asserting part of the Testimony, and omitting for the present any reference to the affirmation there made of the divine right of Presbytery — that is, that the Presbyterian form of church government is the only one of divine appointment or warranted by Scripture, and the Secession view of the covenants as imposing an absolute obligation to maintain that doctrine and enforce its observance upon others, which will receive a separate consideration— we confine ourselves to the quotation from it of the following declaration regarding the Covenants : — " In like manner they do hereby own and assert the perpetual obligation of the National Covenant of Scotland, frequently subscribed by persons of all ranks in this kingdom, and particularly as approved of and explained by the General Assembly in 1638, and sworn by all ranks of persons anno 1639, and ratified by Act of Parliament 1640. As also, they own and assert the perpetual obligation of the Solemn League and Covenant for maintaining and carrying on a work of reformation in the three king- doms, taken and subscribed by all ranks in Scotland and England anno 1643, ratified by Act of Parliament anno 1644, and particularly as renewed in Scotland, with an acknowledgment of sins and engagement to duties, by all ranks, anno 1648. Concerning which oaths and covenants they declare and assert, that as to the matter of them they were lawful, being plainly contained in the Word of God, and as to their ends they were laudable and necessary j and therefore they did, and hereby do, declare their adherence to the same." — (Gib, i. 161.) The Testimony contains, in conclusion, a solemn warning, " that if we go on in our trespasses, we have just ground to fear " that a righteous and holy God may " send a sword, or some desolating calamity and judgment, to avenge the quarrel of His covenant." — (Gib, i. 164.) But in addition to the body of the Testimony, there is the Formula, containing the questions put to every minister, probationer, and elder, from 1733 down to the present time, to which an affirmative answer is required as a test or' condition of membership ; and which, therefore, as regards ministers and probationers, afford evidence of the doctrines they are to hold and to teach. These questions, as it appears to us, equally prove the value all along, attached to the Covenants as seen in the light in DECIDED IN THE COUET OF SESSION. 339 which they are viewed by the Secession ; and that their perpetual, or, as it has been termed, descending obligation, is an essential distinguishing feature of the church to which the pursuers belong. Questions 4th and 5th are in these terms : — " Question IV. Do you own and acknowledge the morality of public covenanting, and do you acknowledge the perpetual obligation of the National Covenant, frequently sworn by persons of all ranks in Scotland, and particularly as explained by the General Assembly, 1638, to abjure the Hierarchy and five Articles of Perth ; and also the perpetual obliga- tion of the Solemn League and Covenant for maintaining and carrying on a work of reformation in the three kingdoms, sworn and subscribed by all ranks in Scotland and England in the year 1643, and parti- cularly as renewed in Scotland in the year 1648 1 And do you promise through grace, to adhere to these Covenants, and, according to your station and opportunities, to prosecute the ends of them?" In this question the doctrine of the perpetual or descending obligation of the Covenant and National League is expressly involved. " Question V. Do you approve of the Testimony enacted and emitted by the Associate Synod of Original Seceders, as a suitable and seasonable Testimony for the doctrine, worship, discipline, and government of the Eeformed Church of Scotland ; and do you in your judgment disapprove of the several steps of defection, both in former and present times, con- demned in the said Testimony as contrary to the Word of God, the Con- fession of Faith, and our Solemn Covenants'!" — (Gib, p. xi.) In conformity with these views, and as a natural sequence, the Asso- ciate Presbytery, on the 23d of December 1743, passed an " Act for renew- ing the National Covenant of Scotland, and the Solemn League and Covenant of the three nations, in a way and maimer agreeable to our situation and circumstances in this period." — (1 Gib, 220, etc.) In the Act itself it is explained that the renewing of the Solemn League and Covenant was " with a solemn acknowledgment of the breaches thereof, and with an engagement to the duties contained therein;" and after assigning reasons for a renewal, the " Presbytery agree and resolve, that the National Covenant of Scotland, and the Solemn League and Covenant of the three nations, shall be renewed and sworn" (1 Gib, 222). The Act proceeds to make an acknowledgment of sins, which are repre- sented as a violation of the Covenants ; and it declares, " that the present and succeeding generations in this land are bound, as aforesaid, by the National Covenant of Scotland, and the Solemn League and Covenant of the three nations, firmly and constantly to adhere unto the doctrine, worship, presbyterial church-government, and discipline of the house of God laid down in His "Word, contained in our standards, and sworn to in these 340 . LEADING ECCLESIASTICAL CASES Solemn Covenants "—(1 Gib, 248). And then in setting forth—" accord- ing to the example (as the Act hears) of our worthy and religious pro- genitors in the foresaid Covenants," — the engagements come under, there is specially included (1 Gib, 234), "that we shall, according to our several stations, places, and callings, contend and testify against aU contrary evils, errors, and corruptions, particularly Popery, Prelacy, Deism, Arianism, Arminianism, and every error subversive of the doctrine of grace ; as also Independency, Latitudinarian tenets, and the other evils named in the above confession of sins." Not only so, but by an Act of the following year, 1744, the Associate Presbytery did " agree, resolve, and determine, that the renovation of the National Covenant of Scotland, and the Solemn League and Covenant of the three nations, in the manner now agreed upon and proposed by the Presbytery, shall be the term of ministerial communion with this Pres- bytery, and likewise of Christian communion in the admission of people to sealing ordinances, secluding therefrom all opposers, contemners, and slighters of the said renovation of our Covenants," and so on, explaining how the different members of the flock are to be dealt with in the matter (1 Gib, 252). This Act having been passed, on republishing the Testimony in 1827, the following addition (as might be expected) was made to the 4th query of the Formula already quoted : — " And do you likewise acknowledge that the renewing of these Covenants in a bond suited to one's circumstances is a duty seasonable at the present times'!" — (Testimony, 1827, p. 196). Having made these references to the Testimony of 1736, and the Acts of 1743 and 1744, any detailed examination is unnecessary of the Testimonies of 1827 and 1842, which are only repetitions of that of 1736. The Acts in relation to both bear that the Synod " unanimously enacted the said Testimony as a term of fellowship, ministerial and Christian, in their body, and appoint it to be published with all convenient speed." And in the preamble to each of the renewed testimonies, after stating the reasons for publishing express testimonies, the Act declares, " Such, in particular, is the testimony which was judicially enacted and published by those who seceded from the Established Church of Scotland. This we regard as a standing testimony for the covenanted cause, as the original document declaratory of the grounds of the secession, as a point of rally- ing for the scattered parties which once composed that body, and as the record containing our claim of right to be regarded as belonging to the Presbyterian Church of Scotland," etc. — (Testimony, 1827, p. 3 ; Ibid, 1842, p. 4). Then, as specially bearing upon the perpetual and descending obliga- tion of the Covenants, as evidenced by the Testimony of 1736, and the DECIDED IN THE COURT OF SESSION. 341 questions in the Formula subjoined to all the Testimonies, and as also shewing that the obligation was here to be of that enduring and compre- hensive character by the ministers and governing body of the Church, it wUl be found that this view of it, together with the lawfulness and practice of covenanting in general, is, in the renewed Testimonies of 1827 and 1842, adopted, and earnestly defended and enforced (Testimony 1827, pp. 139, 142 ; 1842, pp. 158 and 162). Suffice it to quote the following passage : — " 6th. In opposition to those who deny that social vows, having a permanent object, are of perpetual obligation, and who restrict their obligation to example, or found it upon their success as a means of transmitting privilege, we declare that the obligation arising from example is not covenant obligation, but an obligation to covenant when placed in similar circumstances ; that the obligation pleaded for is the obligation of a social vow or promissory oath ; that the obligation of a vow arises from the vow itself, and does not depend upon its consequences ; that as social vowing proceeds upon the principle that society, whether civU or ecclesiastical, when regularly constituted, is the subject of God's moral government as well as individual persons, and, as such, capable of social engagements and public faith, so the perpetual obligation of social vows, having a permanent object, proceeds upon the principle that society thus constituted is recognised both by God and man as a permanent body, whose identity is unaffected by the change of individuals, and that it is upon these principles that we maintain the continued obligations of the National Covenant of Scotland, and the Solemn League and Covenant of the three nations, upon all ranks in these lands, to the latest posterity." To this is added an argument in support of what had thus been laid down. Further, and although it may be true that in the declaration in the testimonies respecting the Covenants no express mention is made of the duty of renewing them, in addition to their independent, perpetual, and descending obligation as there set out, it appears to be clear that this was part of the principles of the Secession Church. This we think is suffi- ciently manifest from the Testimony of 1827 and the Acts of 1743 and 1744, renewing the Covenants ; and also an Act in 1828, which was fol- lowed by a bond largely subscribed by the laity. Adherence to the Testimony and profession was indeed itself an implied renewal. And taking these Acts, together with the testimonies and formula, the duty of renewal (if not absolute), at least at aU seasonable times, and the explicit aknowledgment of its utility iu advancing the objects desired to be attained, are, it is apprehended, points put beyond all question ; while both the formula, and the declaration in the Act 1744 upon the subject of the renovating of the Covenants supply, in addition to all the rest of 342 LEADING ECCLESIASTICAL CASES the evidence to the same effect, the most conclusive proof of the import- ance attached hy the Secession to the Covenants, and to the express recognition of the principles and doctrine professed in regard to them, and among others— that the original swearing of these covenants had upon general principles power to hind, and that in point of fact they did bind, the whole nation to which they respectively belonged, to the belief and to the performances therein contained ; that these vows and obliga- tions have descended upon their posterity ; and that these vows bind the latter to believe and maintain the doctrines referred to and contained in the Covenants, according to the meaning of these documents, as read and understood by the Secession, including, as we have already indicated, and shall now proceed to notice more specially, — 1st, the condemnation and rejection, at least to a certain extent, of the Eevolution Settlement and the Treaty of Union, as measures opposed to the covenanted obliga- tions of the nation ; and, 2dly, not only the maintaining of the Presby- terian form of church government, but the doing of what ia them lies to extend the same uniform system to England and Ireland, as being the only scriptural form permitted by the Lord Jesus Christ, and as being matter fundamental in the bond by which they were united, and essential to its preservation in its full integrity. 2d, Upon the matter of the divine right of Presbytery, it appears to us to be beyond controversy that in the testimonies not only is it declared and asserted that " the Lord Jesus Christ, the only Head of the Church, hath appointed that particular form of government to take place therein," and that it is founded on and agreeable to the Word of God, but that it is the only form of church government which has the divine sanction ; or, as it is expressed in the declaration and testimony of 1736, " that only form of government laid down and appointed by the Lord Jesus in His Word, and which form of government has been received and owned by the Church as the only government of divine institution and appoint- ment, as is evident from the pubUe acts and constitution, particularly from the Second Book of Discipline," and so on — (1 Gib, p. 158). It cannot, it is thought, be held that this is an unimportant doctrine of the Secession Church, or has ever been looked upon in that light from the date of its foundation down to the present time. On the contrary, we consider it to be set forth and contended for as a principle of leading importance, and that that conclusion is rendered irresistible by the terms of the Formula, by which, as a test of the admission of every minister, probationer, and elder, an affirmative answer has always been required to this question — " Are you persuaded that the Lord Jesus Christ, the alone King and Head of this Church, hath appointed a particular form of government to take place therein, distinct from civil government and not DECIDED IN THE COURT OF SESSION. 343 subordinate to the samej and that Presbyterial Church government, without any superiority of office above a teaching presbyter, in due subor- dination of judicatories (such as of kirk-sessions to presbyteries, of presbyteries to provincial synods, and of provincial synods to General Assemblies), is the only form of government laid down and appointed by the Lord Jesus Christ in His Word, to continue in His Church to the end of the world unalterable ; which accordingly has been owned and received by the Church of Scotland as the only government of divine institution and appointment, as is evident from the Second Book of Discipline and from the propositions concerning church government, as the said pro- positions were received and approved by an Act of Assembly 1 645, session 1 6 : And do you promise to submit to the said government and discipline, and never to endeavour, directly or indirectly, the prejudice or subversion thereof ; but that you will, to the utmost of your power, in your station, during all the days of your life, maintain, support, and defend the same, together with the purity of worship received and practised in this Church, against all Erastian, Prelatic, Sectarian, or other tenets, opinions, or forms of worship and government whatsoever, contrary to or inconsistent with the said worship, government, and discipline, sworn to in our Covenants, National and Solemn League?" etc. — (Question 3, Formula, 1736, Gib, p. 10 ; Testimony 1827, p. 195 ; Testimony 1842, p. 220). In this ques- tion there is involved, in the strictest manner, the doctrine of the Divine and exclusive right of presbytery as being the only scriptural form of church government, and, as such, sworn to in the National Covenant and Solemn League. 3d, Again, it is matter of unequivocal assertion that the Original Secession Church stands on the ground of the second Eeformation in 1641, as preceded by the National Covenant and followed by the Solemn League and Covenant in 1643 — the Westminster Assembly, and the various Acts ratifying the Confession of Eaith and establishing a covenanted uniformity of religion. It may be that the Church of the Secession does not disown but acknowledges benefit to have been derived from the Eevolution Settlement and the Union, or at least from the former. Not only, how- ever, is the approbation of them far from unqualified, but her reprobation of the defects and shortcomings, and evil consequences by which they were attended, is explicitly declared. Accordingly, it is part of her testimony to protest against, and consider them as contrary to the Word of God and their solemn covenanted obligations ; and this protest and condemnation, be they right or reasonable or not, have not been dropped from the testimony of the Secession Church. Among other reasons, the Eevolution Settlement is, in the Testimony of 1736, condemned, because " Prelacy is never considered as contrary to 344 LEADING ECCLESIASTICAL CASES the Word of God, and abjured by our Covenants, nor our presbyterian church government and discipline, as what the land is hound to maintain by the most solemn oaths and covenants. The indignities done to the National and Solemn League and Covenant, and consequently to the Most High God, the great party in them, are never regarded, but these solemn oaths and covenants are left buried under an Act recissory, and other acts and deeds subversive of them " — (Gib, p. 87). The testimony goes on to describe the consequences with which the nation ought justly to be visited for not having availed itself of the opportunity afforded at the Eevolution of resenting the indignities and injuries done in the former period to that God whose awful and holy name was interposed in these solemn oaths and covenants. Then, as regards the Treaty of Union, to take only the following passage from the Testimonies of 1827, Gib, p. 40, and 1842, p. 46 ; but referring at the same time to that of 1736, p. 92 : — "Our national guUt was increased by the terms in which the incorporating union between Scotland and England was settled, and the measures which followed upon it. How desirable soever the union was in itself, and how great soever the political advantages which have resulted from it are, yet the mainten- ance of the hierarchy and ceremonies in England being declared a funda- mental and essential article of it, the nation of Scotland, by giving its consent to this, virtually renounced that sacred league and oath which it was previously under to endeavour the reformation of religion in England. The close connection into which it brought us with a powerful nation, differing from ours so widely as to church goverrmient and forms of worship, could not fail to have an extensive influence ; but this was greatly increased by the measures which were consequent upon the Union, and. which may be justly viewed as flowing from that transac- tion." Notwithstanding, therefore, any admission of advantages derived from the Eevolution Settlement and Union, the Church of the Original Seces- sion rests not on them, but on the second Eeformation, which forms the ground on which it is authoritatively declared to stand ; and surely nothing can be a more essential characteristic of a church than the foundation on which it proclaims itself to be built. Now, if these things be so, are they likewise, in the same manner and to the same effect, to be found in the principles and doctrine of the Free Church, as evidenced by her authentic writs and documents ? We do not think they are. It has been said that both churches come from the same source. It may be so ; yet, in dissenting from their parent, their separation from each other might (although in the present instance it may be otherwise) DECIDED IN THE COURT OF SESSION. 345 have only become the greater. Certainly the mere fact affords of itself no room for an inference of their identity, whether in principle or practice ; while it is to he observed that, although the Original Seceders did not contemplate a necessity for a permanent individuality, it was a return to the Establishment, when it should have amended its ways, that they looked forward to, and not a union with any body not connected with, but separated from the Established Church. It is not by this meant to be affirmed that such union must be absolutely inadmissible, but only that to warrant it, so as to render the act unobjectionable, there must at least be a positively clear and manifest case of essential identity in all important principles and doctrines, and church government and discipline, and that these principles and doctrines must be held, and the government and discipline carried out, by the body to be joined, in the same spirit, and substantially in the same form and manner, as appears to have been considered necessary by the Original Secession to give them life and activity : For, having regard to the causes which produced the Original Secession — to the protesting and distinguishing character which it then assumed, by the embodiment — for the specific reasons assigned — of its profession and doctrine in Testimonies — and to the terms in which, in order to the effectual promotion of the good cause they had at heart to promote by their separation, it was considered necessary that the testi- monies or declarations should be framed, explanatory of those covenanted principles which have ever since been adhered to, and form a leading and essential feature of their bond of union, it will, in our judgment, be requisite, as respects material points, that, in the authoritative writings of the Free Church, the same doctrines and principles shall be found to be substantially embodied with a like explicitness as to the sense in which they are to be received, and the obedience with which they are to be observed and acted on. If that shall be wanting — and all that can be said is, that they are not dissented from, and are to be held as generally recog- nised by some one or other of the standards referred to — we think there would be a dissimilarity presenting a bar to union, if resisted by a portion of the congregation. That the Free Church, as weU as that of the Original Seceders, is indeed a protesting Church, is true, but it would be difficult to read the testimonies of the two without the impression that the state of mind of the latter, when it separated from the Establishment, and in which it has continued, was very dissimilar indeed from the state of mind in which the former took the same step by the Disruption in 1843. And considering the different circumstances and moving influ- ences acting upon the two bodies respectively, it is not to be wondered at if it should turn out that matters prominently insisted in by the one Church, — and iu order to the bearing of an express testimony to which 346 LEADING ECCLESIASTICAL CASES their union was originally formed, and has since been maintained, — should by the other be treated in a very different manner. Now, among these are, as it seems to us, the National Covenant and Solemn League and Covenant. Turning to the Claim, Declaration, and Protest of 1842, and the Protest of 1843, wherein the Claim is referred to, and which form the authoritative documents of the Free Church, and are referred to as such in the Formula, there will be found to be absolutely nothing set forth with respect to the Covenants. It may be assumed that they are recognised as important steps in the Eeformation cause ; for it is not to be supposed that they could be disavowed, or not held in respect by any Presbyterian body ; but such acknowledgment does not place the Free Church upon any other ground in relation to the Covenants than the Established Church, notwithstanding whereof the Original Seceders felt themselves compelled to come out from it ; and their successors have so remained, in order that they might, as a separate body, bear an explicit testimony to the sinful defections from the Covenants, and their cove- nant obligations, and to the special character of these obligations, and the duties they imposed, as they understood them, and by the bearing and display of which the evils that were lamented, and the progress of the Church as a covenanted Church, might be in the one case abated and in the other advanced. Having this in view, it is only necessary to compare the Testimonies of the Original Seceders and those of the Free Church, to be at once satisfied that there is a most material variance between them. In regard to the Covenants, the Free Church Standards are really a total blank. In particular, they are not referred to in the Free Church Formula. On the other hand, the Testimonies of the Secession are most full, explicit, and earnest in regard to them. Of the perpetual and descending obligation of the Covenants as being a doctrine or tenet of the Free Church, not a trace is to be discovered. It is not acknowledged by the Free Church. There is nothing which can possibly be construed into an adoption of it, or its consequences as affecting the members of that communion. In short, nothing is to be found from which it can be inferred, and far less which can be said to amount to a direct expression, that by the Free Church the Covenants are looked upon in the same light as by the Secession, and as supporting (or, as it were, enjoining) the same religious views, and the prosecution of the same ends, and in the same manner. And thus the Standards or Testimonies of the two bodies exhibit not an identity, but an entire contrariety, in that which has already been shewn to be a fundamental principle or doctrine in the Secession Church. Opposition in positive words in not necessary ; silence is sufficient. And then, passing from the Claim and Protest to the Formula of the DECIDED IN THE COURT OF SESSION. 347 Free Churcli, there is a positive difference in regard to what is required by the Secession to be asserted and affirmed, or evidenced by the ministers and office-bearers as a test in regard to the Covenants. In the questions in the Free Church Formula no reference whatever is made to the Covenants, which, and their perpetual obligation, are there completely ignored as an article of clerical profession. In the questions in the Formula of the Secession, directly the reverse is the case. Here, there- fore, the Formulas stand in manifest contrast with each other, and the effect of a union would be, that the members of the Secession would become members of a united church in which the ministers and the office- bearers would not be qualified in the manner deemed essential by the separate body to which they now belong. For it is impossible to doubt that, by a union with the Free Church, the ministers and probationers must be admitted on the Free Church Formula, and that, so far as regards this material point of what has been aU along deemed essential as a test in the qualification of ministers, probationers, and office-bearers, the doctrines and system of the Secession will cease to exist, and be sunk in those of the Free Church. This, we are of opinion, is a state of things no member of a Secession congregation can be compelled to submit to, at the cost, if he refuses, of the loss of the property at present vested in it, or in trustees for its behoof. But then the defenders have appealed to the Act and Declaration of the Free Church in 1851, as bringing it in this matter into identity with the Secession ; but we do not consider that it makes any material altera- tion in the position of the two bodies. Historically, no doubt, it mentions the first and second Eeformations, and different relative Acts, together with the Covenants ; but neither in that nor in any passages referring to them, which may be taken to be of a declaratory nature, is there anything of the same character as that by which the Testimonies of the Secession are distinguished. The defections from the Covenants, which weighed so heavily with the Secession, are not condetaned ; their principles, obligations, and consequent duties, are not explained or asserted, or an adherence to them pledged. The short- coming from — or, it may rather be said, absolute failure in — ^raising the same voice with the successive Testimonies of the Secession is manifest ; and the result apparently is, substantially, that by the Act and Declara- tion of 1851 the Free Church, as might be expected, still stands upon no different ground from the Established Church in relation to the Covenants, as to which they had found no cause of offence while they remained in it, and which formed, for anything that has been explicitly stated, no cause moving to the Disruption in 1843. Then, with respect to the divine right of presbytery in particular, and 348 LEADING ECCLESIASTICAI. CASES the maintenance of their doctrine in regard to which, the Secession hold to be embraced by their covenant engagements. In the view of the Free Church, Presbyterian Church government, whether you turn to the authoritative documents or Testimonies or to the Formula, is merely one agreeable to the Word of God and the only government of this Church ; a declaration which will probably find a concurrence by all presbyterians, and which it may be anticipated would be made by Christian communities in general, in favour of the form of Church government they may have established. Indeed, the question in the Free Church Formula would seem to be designedly framed so as to avoid the doctrine of the exclusive right of presbytery to be divine and scriptural. The assertion of a particular form is avoided, and still more the assertion that presbytery is that only^form. All that is asserted is, that a government of the Church has been appointed distinct from the civil government, and that the presbyterian form is founded on Scripture, and agreeable thereto. But the doctrine or principle to which the Secession bears witness, arid its members assert, in the terms already noticed, is of a very different com- plexion. Thus, upon this point, which is earnestly declared and insisted in by the one Church, there is direct opposition, or at least clear non- adoption by the other. And hence, in our opinion, no congregation or minister of the Secession can unite with the Free Church without drop- ping a material part of that Testimony which, by their bond of union and covenant engagements, they are called upon to profess and to maintain inviolate. On the third point of difference a few words wUl suffice. It has been previously stated that the ground on which the Secession stands, and on which the principles and attainments of the Eeformed and Covenanted Church of Scotland, as proclaimed by the Secession in her testimonies, are to be defended and advanced, is the second Eeformation. But the Free Church appeals to the Eevolution Settlement and the Treaty of Union as the grand bulwarks and securities of the Presbyterian Eeformed Church of Scotland ; and if, to some extent, the declarations of the Secession, in regard to the Eevolution Settlement, may not be wholly adverse to those of the Free Church, still it is to be observed that, in the Act of' the Free Church of 31st May 1851 (Free Church Standards, p. 5), whilst the Eevolution Settlement is declared not to have been in all respects satisfactory, no exception is taken to it on account of its ignoring the divine right of presbytery, or of its disrespect to the Covenants. Then, again, in the matter of the Treaty of Union, nothing can well be more opposed to each other than the declarations of the respective churches. By the Secession it is unequivocally denounced and reckoned among the national sins of the nation, as being a breach of the National DECIDED IN THE COUET OF SESSION. 349 League and Covenant, and an infringement of the divine and exclusive right of presbytery. By the Free Church it is unreservedly lauded. In the Claim, Declaration, and Protest, referred to in the fifth question of the Formula of the Free Church, the Treaty of Union is announced as the basis of the claim and the foundation of the protest of the Free Church. A solemn reference is repeatedly made to that treaty ; as that by which the constitution of this country is unalterably settled ; as that by which the sovereign's supremacy is excluded in Scotland as inconsistent with presbytery j as that which embodied the Act of Security as a funda- mental condition; as that which confirmed and secured the Act 1690 concerning patronage. And, finally, towards the conclusion of that celebrated document, the Treaty of Union was pleaded in name and behalf of the Free Church, and of the nation and people of Scotland, in support of the claim of right then solemnly made. The protest of May 1843 may be also referred to. In these circumstances, it is difficult to understand how, in relation either to the Eevolution Settlement or Treaty of Union, there can be said to be an identity between the two churches, or to see how the Secession can unite with the Free Church without abandoning, on the one hand, and adopting on the other, what she has approved of and asserted, or disapproved of and condemned ; and, therefore, without changing the position which it took in 1736, and firmly held at the date of the pro- posed union in 1852. Without stopping to make any quotations from them, those parts of the Testimonies of 1827 and 1842 may be referred to relating to a breach resulting in the formation of the United Secession, now the United Pres- byterian Church, where the basis of union with the United Secession is explicitly condemned, and in which there is at once evidence of the Original Secession's consistency in maintaining those peculiar and distin- guishing principles, which in the Testimonies are placed in a clear light as well in relation to the Covenants as to other points of their tenets, and also a remarkable coincidence in the grounds on which that union was then objected to by those who opposed it; and the grounds on which the union with the Free Church is now resisted by the pursuers — (Testi- mony 1827, p. 73 ; Testimony 1842, p. 84). The length to which this opinion has already extended forbids the adding to it by any examination in detail of the proceedings wherein the overture for a union with the Free Church originated, which was followed by the resolution of the majority of the Secession Synod in its favour, and ended in the consummation of the union, or making the remarks they suggest upon the question of the identity of the two churches. But, before concluding, we must again recur — 1st, to the present existence of 350 LEADING ECCLESIASTICAL CASES a United Original Secession Synod consisting of the minority— only less by one than the majority of members by whom the resolution to unite with the Free Church was carried— and with which Synod the pursuers, in opposition to the small majority of the congregation at Thurso, continue in communion — a state of things in which it could only, with reluctance, and upon very clear grounds, be held that the pursuers, who for them- selves and their households, desire to worship as heretofore, and- to adhere without wavering or shadow of turning to their original principles and tenets — must, under the penalty of losing aU right to the church-building and the rest of the property of the congregation, unite with another religious body of a different denomination, and in important matters confessedly not admitting of being represented as possessing an identity of character with the Secession. And, 2dly, to the reservation or con- dition with which, in agreeing to unite with the Free Church, the consent was accompanied on the one hand ; and the .qualification with which, by the deliverance of the Assembly of the Free Church, it was conceded on the other. We find it diflScult to reconcile the declarations of the respective bodies with the idea that in the two churches -there is no substantial difference in principles or tenets. On the contrary, they seem to imply on either side a consciousness of their existence, but a desire, nevertheless, in some way or other, to reconcile it with the union which had been resolved on. How this can be held to be accomplished by the course resorted to, it is not easy to see. On the contrary, it appears to ns to be of no value, except as evidencing the sense of those by whom the condi- tion was proposed, of the necessity of thereby protecting their right to maintain their principles, notwithstanding their uniting with the Free Church, of the identity of whose principles with their own they had no conviction, knowing as they did that the Free Church did not acknowledge their standards, and being aware, as they must have been, that the standards of the Secession contained no recognition of their peculiar views, and particularly their views in regard to the Covenants. If there is no differ- ence in principles, or tenets, or ecclesiastical arrangement, the permission asked and the liberty granted were alike useless ; and if a difference does exist, the reservation founded on, and its qualified reception, can be of no avail in removing the objection to a union. For that purpose they are totally valueless. Supposing they were at all workable, they involve a complete change in the position of the Secession in prosecuting its views, and materially weakening its power in doing so : But it can hardly be doubted, that, to every practical effect, they must, in truth, be wholly inoperative, even during the lives of the existing members of congrega- tions joining the Free Church, whether as relates to disagreement in DECIDED IN THE COURT OF SESSION. 351 regard to the Covenants, or on any other points, the apparently more than conjectural possibility of the existence of which had led to their introduction ; — ^while they will thereafter become, as already explained, no better than a dead letter, so that the union will then stand on the same footing as if the reservation or condition had either not been made or not acceded to. Upon the whole matter, we are of opinion that judgment ought to go in favour of the pursuers. The Coukt pronounced the following interlocutor : — " Eecall the interlocutor of the Lord Ordinary reclaimed against : Find and declare that the subjects described in the conclusions of the summons, and also that all other property whatsoever belonging to or vested in trust for behoof of the Associate congregation of Thurso, in connection with the General Associate Synod of Edinburgh, latterly known as the Associate Synod of United Original Seceders, belong to and are held for behoof of the pursuers, and all others who may adhere to them, and form along with them the said Associate congregation, and belong to and are held exclusively for the pursuers and those who may adhere to them, and maintain the principles and doctrines of the body denominated Original Seceders, in connection with the said General Associate Synod of Edinburgh, or Associate Synod of United Original Seceders : Find and declare that the pursuers, members of the said Associate congregation of Thurso, and in connection foresaid, have, for themselves and such others as may adhere to or join them, the sole right and title to the said subjects and kirk, or chapel, or meeting-house, and whole other property, and to the exclusive possession and management thereof; and further, that the managers and trustees who may be appointed by the pursuers, and their said adherents, shall hold the same solely for behoof of them, the pursuers, and their said adherents, and that they alone are entitled to give direc- tions to the said managers and trustees in the premises, free from the control or interference of the defenders ; and the Lords likewise decern and ordain the defenders immediately to deliver to the pursuers the whole title-deeds of the said heritable sub- jects, and to quit possession of the said kirk, or chapel, or meeting-house, and other property foresaid, of the said congre- gation, and leave the same void and redd, and to deliver up the keys of the kirk, or chapel, or meeting-house, and other property, to the pursuers, in order that they may enter to the premises, and they and their said adherents possess and enjoy the same : And the Lords further interdict, prohibit, and dis- charge the defenders from attending or voting, or pretending to vote, at meetings of the said congregation, and generally, from molesting and troubling the pursuers and their said adherents in the peaceable possession of the property of the congregation 352 LEADING ECCLESIASTICAL CASES in all time coming : Quoad ultra remit the cause to the Lord Ordinary to proceed further therein as may he just : Find the pursuers entitled to the expenses incurred by them since the date of the interlocutor closing the record, and remit, etc j and reserve all other questions of expenses." Jambs Finlay, S.S.C— Aulb & Chalmbks, W-S.— Agents. March 3, 1849. Eev. Sir William Dunbak, Bart., Pursuer. — Lord-Advocate Rutherfurd — Dunlop — Inglis. Eev. William Skinner, D.D., Defender.— D. F. M'Neill — Sandford — Shawd. First Division. — Lord Ivory. Church — Bishop. — The office of "Bishops of the Protestant Episcopal Church in Scotland," is not recognised by the law of Scotland. , Church — Jurisdiction. — ^The authority of the judicatories, courts, synods, or similar assemblies of dissenting sects, over the ministers or members of these sects, depends entirely upon contract between the judicatories and the parties submitting themselves to their authority ; and, on the violation of these contracts by the judicatories, the other parties may withdraw them- selves from their authority, and an ecclesiastical censure pronounced by them is not a privileged act. 3. A clergyman of the Church of England subscribed, under certain con- ditions, the canons of the Scottish Episcopal Chuich, and submitted himself to the authority of one of the Bishops of that Church. He afterwards with- drew his subscription, alleging, as his reason, that the conditions on which he had subscribed had been violated by the Bishop. An ecclesiastical sentence against him was subsequently issued by the Bishop. In an action of damages at the instance of the clergyman against the Bishop, on the ground that the sentence pronounced was libellous, — Held, 1. That the Bishop had no authority at law to pronounce such sentence. 2. That his authority, if he ever had such, depended on the contract of submission by the clergyman, who was entitled to withdraw from it if its conditions were violated. 3. That the Court has jurisdiction to try whether the contract was violated. 4. Defence that the act of the Bishop was privileged, repelled ; the clergyman having offered to prove a violation of the contract. This was an action of damages at the instance of the Eev. Sir William Dunbar, minister of St. Paul's Episcopal chapel, Aberdeen, against the Eev. Dr Skinner, Bishop of the Scottish Episcopal Church at Aberdeen. Some years after the Episcopal Church was disestablished in Scotland, at the Eevolution of 1688, the Act 10 Queen Anne, c. 7, was passed, by which ample toleration was afforded to the clergy and laity of that communion. By this statute full liberty was accorded to all persons of DECIDED IN THE COUET OF SESSION. 353 the Episcopal persuasion to meet for the exercise of divine worship, to be performed after their own manner by pastors ordained by a Protestant bishop, and to use in their congregations the liturgy of the Church of England, without let or hindrance. All the ministers were required to take the oaths of allegiance and abjuration. The Act 1695, entituled an " Act against irregular baptisms and marriages," by which Episcopal ministers were prohibited to baptize children or solemnise marriages, was repealed ; and full power was given to Episcopal ministers not only to pray and preach to their congregations, but to administer sacra- ments and marry, without incurring any pain or penalty whatever. All ministers protected by the Act were ordered, in the time of divine service, to pray in express words for the Queen, the Princess- Sophia of- Hanover, and all the royal family. Some of the Episcopal pastors and congregations in Scotland took advantage of the provisions of this statute, while others did not. The part taken by the great body of the Scottish Episcopalians in the political transactions of 1745-46, having excited the jealousy of the Government, the Act 19 Geo. II., c. 38, was passed, " more effectually to prohibit and prevent pastors and ministers from officiating in Episco- pal meeting-houses in Scotland, without duly qualifying themselves according to law ; and to punish persons for resorting to any meeting- houses where such unqualified pastors or ministers shall officiate." By this statute the Sheriffs were directed to enquire into the number of Episcopal meeting-houses within their bounds, and to cause lists to be made of the same, copies of which were to be transmitted to each of the Houses of Parliament. The pastors of Episcopal congregations were directed to take the oaths to Government, and obtain a certificate that they had done so from the Sheriff-clerk — a copy of which certificate was to be af&xed to the door of the meeting-house, and another to some con- spicuous place inside. Ministers were ordered to pray for the King, his heirs or successors by name, and for all the royal family, in the form of words contained in the liturgy of the Church of England. Magis- trates were enjoined immediately to shut up all meeting-houses where the pastor did not comply with these requirements. All pastors officiat- ing without qualification, were liable to imprisonment and transportation. Penalties were imposed on laymen frequenting such meeting-houses. No letters of orders of any clergymen were to be sufficient "unless such as had been given by some Bishop of the Church of England or of Ireland. Various civil disabilities were also imposed on aU adherents to this communion. This enactment was explained and enforced by the Act 20 Geo. II., c. 34. In 1792 the civil disabilities imposed by these statutes were removed by the Act 32 Geo. III., c. 63. This statute repeals so much of the previous Acts as relates to imposing penalties on persons resort- ing to Episcopal chapels in Scotland, or officiating therein. The ministers of the Scottish Episcopal chapels are ordered to take the oaths of allegiance, abjuration, etc., to subscribe the thirty-nine articles of the Church of England, and to pray by name for the royal family. 2a 354 LEADING ECCLESIASTICAL CASES Pastors or ministers of any order in the Scottish Episcopal Church were not allowed to hold benefices or to ofiaciate in England. In 1840, by the Act 3 and 4 Vict., c. 33, this last restriction was to some extent removed. That statute proceeds on the preamble that it is "expedient to alter and amend the said Act (32 Geo. III., c. 63, the statute last referred to), and to enable the Bishops of the Protestant Epis- copal Church in Scotland, and the priests of such Church, canonically ordained, under certain limitations and restrictions, to perform divine service, to preach and to administer the sacraments, according to the rites and ceremonies of the United Church of England and Ireland, in churches or chapels within England or Ireland, where the liturgy of the said United Church is used." Besides the congregations properly belonging to the communion of the Scottish Episcopal Church, many congregations were formed during the last century in various parts of Scotland, by clergymen who had been ordained by Bishops of the Churches of England or Ireland, but who had left these countries and fixed their residence in Scotland. These congregations used the liturgy of the Church of England, and their pastors were ordained clergymen of that Church. They held aloof from the communion of the Scottish Episcopal Church, and did not recognise the authority of its Bishops or canons. Among these congre- gations was that of St. Paul's Episcopal Chapel, Aberdeen. St. Paul's Chapel was built in 1722, from the voluntary contributions of parties who afterwards formed its congregation. By its constitution, the management was vested in eleven managers, who were declared to have power to uplift and administer the funds of the congregation, whether derived from voluntary contributions or seat-rents, subject to the control of general meetings of the constituent members, who are described as " a Voluntary Society, united under the sanction of the Act of Toleration." The managers had also a right, in case of a vacancy occurring, to nominate a clergyman, who was to be inducted, if approved of by one-third of the members ; and, if they failed to make any nomina- tion within eight months, the right of election devolved on the members themselves. In whichever way the clergyman was elected a call to him was to be subscribed by the members of the congregation. Under this constitution the chapel continued to be managed down to 1840 ; but in that year (following the example of several other Episcopal congregations, similarly situated, which had, after the passing . of the Act 32 Geo. III., c. 63, united themselves with the communion of the Scottish Episcopal Church), a proposal for a union with that Church was made, and favourably entertained by the managers of St. Paul's. After several communications with Dr. Skinner, the Bishop of the Episcopal Church at Aberdeen, the congregation, on 12th January 1841, entered into and executed a " deed of union," whereby they promised " in name of, and acting for, the members of St. Paul's Chapel, to pay all spiritual obedience to the Eight Eeverend William Skinner, and his successors in the oflice of Bishop in the diocese of Aberdeen, under the following articles and conditions of union on our part, which we DECIDED IN THE COUET OF SESSION, 355 hereby declare to be the articles and conditions under which we join the Scottish Episcopal Church, namely : — ' That all the present rights and privileges of the members of St. Paul's Chapel (particularly as set forth in the constitution or decree-arbitral, pronounced by the late George Moir of Scotstown, Esquire, and extension thereof) shall remain entire and be secured in the union, more particularly the choice of the clergy- men, the sole management of the funds, and the continued use and preservation to the chapel of the exclusive use of the liturgy, including the catechism of the Church of England — none of which rights and privileges shall be infringed upon without incurring the dissolution of the said voluntary union : And we further promise to call upon and require our clergymen, for the time being, to subscribe the canons of the Scottish Episcopal Church in the form prescribed (but always in accordance with the continued use of the Book of Common Prayer of the Church of England), so that the congregation may be henceforth constituted and recognised as a regular congregation of the said Church before mentioned.' " This union was completed by a declaration by Dr. Skinner, in the following terms : — " The foregoing articles and conditions of union are hereby most cordially acceded to and confirmed, and the congregation of St. Paul's Chapel, in Aberdeen, henceforth constituted and recognised as a regular congregation of the foresaid Episcopal Church." Mr. Harris, the minister of St. Paul's, concurred in this union, and subscribed the canons of the Scottish Episcopal Church. On the resignation of Mr. Harris in 1842, the Eev. Sir William Dunbar of Dum, Bart., a presbyter of the Church of England, who had received holy orders from the Bishop of Bath and Wells, was elected minister of the chapel. In terms of the constitution, a call to Sir William was signed by the members of the congregation, proceeding upon the preamble, "that the congregation of St. Paul's Chapel, in Aberdeen, is now united with the Scottish Episcopal Church, and bearing that the subscribers did thereby invite and nominate him to be the minister and pastor of the said congregation of St. Paul's Chapel, in Aberdeen, to discharge the holy functions of his ministry according to the liturgy of the Church of England as by law established, and in other respects according to the rules and ordinances of the Scottish Episcopal Church, and in connection therewith, and in terms of the deed of union between the Scottish Episcopal Church and the said chapel." On 26th May Sir William accepted this call, and he preached in the chapel for the first time on the 29th. A letter recommendatory of Sir William was addressed to Bishop Skinner by the Bishop of London, in whose diocese Sir William then officiated ; and on 1 8th June there was submitted to him a deed of presentation by the managers of the chapel in favour of Sir William. On 24th June Sir William subscribed the canons of the Scottish Episcopal Church, and promised to give " due obedience" thereto ; " and I, in like manner, promise that I wUl shew, in all things, an earnest desire to promote the peace, unity, and order of the said Episcopal Church, and will not appeal from any sentence to a Civil Court, but acquiesce in the decisions of the ecclesiastical authorities, 356 LEADING ECCLESIASTICAL CASES in all questions falling under their spiritual jurisdiction." On 2d July he was instituted to his charge by the Bishop. The deed of institution by the Bishop contained a clause prohibiting every other clergyman from preaching in the chapel without Sir William's consent ; " whom we do also certify that he shall be accountable to us and our successors, Bishops of Aberdeen, for his conduct as minister of the chapel to which he is now instituted, and as pastor of the congregation which is now com- mitted to his care ; and that, for this purpose, he shall attend our visitations when required to do so, either by ourselves, or by the Dean in our name, and answer all such questions as we may find it expedient to put to him, respecting the state of his congregation, and his mode of instructing them ; submitting, if we shall require it, his sermons and public lectures of every kind to our inspection." Soon after his induction to the charge of St. Paul's Chapel, Sir William Dunbar conceived that Bishop Skinner had commenced a series of encroachments on the privileges reserved to the minister and congregation of that chapel by the deed of union with the 'Scottish Episcopal Church. In particular, he complained — 1. That at a con- firmation held by the Bishop in his own chapel (St. Andrew's), in March 1842, he administered the rite not according to the Book of Common Prayer of the Church of England, but according to another form different therefrom. 2. That in like manner, at his institution as minister of St. Paul's, the form of service used by the Bishop was not authorised by the Book of Common Prayer, but taken from an American service book. 3. That he (Sir William) having declined to partake of the communion at an ordination service in St. Andrew's Chapel, when the communion was administered not according to the order of the Book of Common Prayer of the Church of England, but according to the form of the Scottish Communion Office which was materially different, and, in the opinion of many, had a tendency towards the Popish doctrine of transubstantiation, Dr. Skinner reproved him for not participating therein, according to that office, and intimated to him that the next time he acted in like manner his conduct would be made the subject of ecclesiastical censure and procedure j all this being in violation of the stipulation of the deed of union as to the exclusive use of the liturgy of the Church of England. 4. That having been called upon by the Secretary of the Scottish Episcopal Church Society for the relief of aged and infirm clergymen of that communion to make a collection for the funds of that society, he (Sir William) laid the letter of the secretary before the managers, who alone had control over the collections made in the chapel ; and they having, in accordance with his wishes, come to the resolution that it was not expedient to make such a collection, Dr. Skinner intimated to him, at a personal interview, that he would hold him responsible for a collection not having been made ; this being in violation of the right of the managers to the sole control and management of the funds and offerings of the congregation, reserved by the deed of union. With reference to these alleged breaches of the deed of union. Dr. Skinner averred — 1. That the confirmation was as usual held in his DECIDED IN THE COURT OF SESSION. 357 own chapel (St. Andrew's), and the rite was administered according to a form which had been in use by the Bishops of the Scottish Episcopal Church in Aberdeen from time immemorial. There was thus no interference with the use of the liturgy and catechism of the Church of England in St. Paul's Chapel. 2. Sir William Dunbar preached the sermon at the ordination in St. Andrew's Chapel, but declined to participate in the communion, which was administered, in accordance with invariable custom, according to the form prescribed by the Scottish communion office, which is declared by the canons to be of primary authority in the Scottish Episcopal Church. By this refusal Sir WUliam had rendered himself liable to ecclesiastical censure. No interference was on this occasion made with the use of the English liturgy in St. Paul's Chapel. 3. A collection in aid of the funds of the Scottish Episcopal Society was prescribed by the 40th canon of that church J and, in accordance therewith, the collection had been made by Mr. Harris, under the authority and direction of the managers. Sir WUliam Dunbar, however, used his influence as their pastor with the managers, and individually requested them to refuse to make the collection. For this refusal Dr. Skinner felt himself obliged to intimate that he would hold Sir William responsible. A long correspondence thereupon ensued, in the course of which Sir William Dunbar withdrew his subscription to the canons of the Scottish Episcopal Church, and Dr. Skinner refused to acknowledge his power to withdraw that subscription without his consent. There were passages in the correspondence on which Sir William founded as an acceptance of his withdrawal. On 29th May Dr. Skinner addressed to the managers of St. Paul's Chapel a letter, in which he intimated Sir William's withdrawal of his subscription to the canons ; protested that he had not at all infringed upon the privileges secured to the congregation by the deed of union ; and called upon them to procure, and present to him for institution, a clergyman who would subscribe the canons of the Church, and " pay all spiritual obedience to him and his successors in office as Bishops of the diocese of Aberdeen." A meeting of the constituent members of St. Paul's Chapel was held on 27th June, for the purpose of considering the correspondence between Dr. Skinner, Sir William Dunbar, and the managers. The meeting resolved, by a majority of thirty -seven to fifteen, " That the deed of union of this congregation with the Scottish Episcopal Church is from this date annulled and void, and, for themselves and the other constituent members, withdraw and cancel the same, and instruct the clerk of this meeting to transmit a certified copy of this resolution to the Eight Eev. Bishop Skinner, and also to the Eev. Sir William Dunbar, Bart." A copy of this resolution was accordingly transmitted to Dr. Skinner, who, on 1st July, acknowledged its receipt by a letter addressed to the managers, in which he protested against the power of the meeting to annul the mutual deed, and called upon them to maintain their connection with the Scottish Episcopal Church. He added — "In my official communication to you of the 29th May — to 358 LEADING ECCLESIASTICAL CASES which I have not as yet been favoured with any answer— it pained me exceedingly to intimate to you that I held the charge of St. Paul's Chapel to be now vacant from the date at which your former pastor returned to me his deeds of presentation and institution, and that the ministrations of the Eev. Sir William Dunbar, Bart, in that chapel or anywhere else in Scotland, did no longer possess any ecclesiastical authority." The managers at a subsequent meeting declared the chapel vacant, but Sir William Dunbar continued to officiate in it, adhered to by a majority of the congregation. On 9th and 10th August a synod of the Episcopal clergy of the district was held at Aberdeen, and the whole case was submitted to them by the Bishop. The result of their deliberations was the follow- ing declaration or sentence : — " In the name of God, Amen. Whereas the Eeverend Sir William Dunbar, Baronet, late minister of St. Paul's Chapel, Aberdeen, and a presbyter of this diocese, received by letters demissory from the Lord Bishop of London, forgetting his duty as a priest of the Catholic Church, did, on the 12th day of May last, in a letter addressed to us, William Skinner, Doctor in Divinity, Bishop of Aberdeen, wilfully renounce his canonical obedience to us, his proper ordinary, and withdrew himself, as he pretended, from the jurisdiction of the Scottish Episcopal Church; and, notwithstanding our earnest and affectionate remonstrances, repeatedly addressed to him, did obstinately persist in that his most undutiful and wicked act, contrary to his ordination vows and solemn promise of canonical obedience, whereby the said Sir William Dunbar hath violated every principle of duty, which the laws of the Catholic Church have recognised as binding on her priests, and hath placed himself in a state of open schism ; and, whereas, the said Sir William Dunbar hath moreover continued to officiate in defiance of our authority; therefore, we, William Skinner, doctor in divinity. Bishop of Aberdeen aforesaid, sitting with our clergy in Synod, this 10th day of August, in the year of our Lord 1843, and acting under the provisions of Canon xli., do declare that the said Sir William Dunbar hath ceased to be a presbyter of this Church, and that all his ministerial acts are without authority, as being performed apart from Christ's mystical body, wherein the one spirit is, and we do most earnestly and solemnly warn all faithful people to avoid all communion with the said Sir Willliam Dunbar in prayers and sacraments, or in any .way giving countenance to him in his present irregular and sinful course, lest they be partakers with him in his sin, and thereby expose themselves to the threatenings denounced against those who cause divisions in the Church, from which ;danger we most heartily pray that God, of His great mercy, would keep all the faithful people committed to our charge, through Jesus Christ our Lord. Amen." A copy of this document was enclosed in a letter to the managers of St. Paul's Chapel, which bore — " I have to request you will have the goodness to cause this solemn declaration to be communicated to all the members of St. Paul's Chapel, in the way which to your wisdom and discretion may seem best. I may add, that it has been directed to be read from the altar DECIDED IN THE COUET OF SESSION. 359 of every other chapel of the diocese of Aberdeen, after the Nicene Creed, to-morrow, being the ninth Sunday after Trinity, as you will perceive from the accompanying printed circular to the clergy of the diocese." Copies were also transmitted to the Archbishop of Canterbury, and to the presiding Bishop of the Episcopal Church in America, and to the Bishop of London, Sir William Dunbar's former diocesan. On 28th October 1845 Sir William Dunbar raised the present action of declarator and damages, in which he concluded — 1. That the above sentence should be found and declared to have been pro- nounced illegally, irregularly, and without authority, and that the same was null and void, to the effect of impairing the rights of the pursuer as an Episcopal clergyman officiating under the protection of the Act of Queen Anne : and, 2d. For £5000 of damages. Defences were lodged by Bishop Skinner, in which he pleaded in limine, that the Court had no jurisdiction to try the case, as the ground of action was a spiritual and ecclesiastical act, performed by the defender in his ecclesiastical capacity, as the pursuer's bishop. The Lord Ordinary pronounced the following interlocutor : — "Eepels the defences, so far as they are pleaded as preliminary or prejudicial, reserving to them such effect as they may be entitled to as defences on the merits ; and the defender having given notice of his intention to bring this judgment under review, finds him, in terms of the statute, liable in the expenses of the preliminary discussion : Appoints an account thereof to be given in, and remits the same, when lodged, to the auditor of Court, to tax and report." ' 1 "l^oTB. — It does not appear to the Lord Ordinary that, taking tlie summons as laid, there is any ground for calling in question the competency or jurisdiction of this Court. The pursuer has raised no question which infers a challenge of the defender's Episcopal authority, or asserts a controlling or corrective power in this Court over his sentence as a regular ecclesiastical proceeding. It might have been otherwise had the pursuer brought his challenge in the character of an admitted presbyter or minister of the Scottish Episcopal Church, and of course (as such) duly subordinated to its authority and tribunals. But the case which the pursuer under- takes to establish is rested on a basis directly and absolutely the reverse. He alleges : 1. That the congregation over which he presides did not become united to the Scottish Episcopal Church except in terminis of a positive bipartite contract of union. 2. That that union was constituted not absolutely but qualificate, and there were attached to it certain essential conditions, the infringement of all or any of which, on either side, was declared sufficient to operate a dissolution. 3. That, in point of fact, there had really occurred such an infringement on the part of the defender and the Scottish Episcopal Church, in consequence whereof the pursuer and his congregation, who had become only 'pactionally connected' with that church, had again become free and independent of all such connection, just as entirely and absolutely as if no union had ever been attempted, and no deed to that effect had ever been executed. And, 4. That the pursuer having thus ceased, to any effect, to hold the character of a proper member of the Scottish Episcopal Church, was no longer subordinated to its authority or subject to its jurisdiction, and the sentence pronounced against him as such member was of course nowise pro- tected by ecclesiastical privilege or otherwise. The pursuer may, or may not, succeed in establishing the case which he thus makes. But, such being its real 360 LEADING ECCLESIASTICAL CASES Dr. Skinner reclaimed, and the Court recalled the interlocutor jof the Lord Ordinary submitted to review, and, without prejudice to the pleas of the parties in regard to the question whether the Court has jurisdiction to try and decide the case, before farther answer ordained a record to be prepared, embracing all the allegations of the parties in point of fact, both in regard to the question of jurisdiction and the merits of the action, and remitted the cause back to the Lord Ordinary to proceed accordingly. A record having been made up, the Lord Ordinary pronounced the following interlocutor: — "Eepels the defence pleaded in respect of privilege ; sustains the competency of the action, as well as the juris- diction of the Court to try the same ; and that it may be prepared for trial in common form, remits the process to the Issue Clerks."^ nature on the face of the summons, it is not thought the Court can refuse to enter- tain the action, or decline its own jurisdiction to try the question thus raised. And, if so, the matter stirred in the preliniiiiary defences seems substantially just to resolve into the merits of the case." 1 "ifoTE. — The Lord Ordinary continues to take the same view of the case which he formerly expressed in his interlocutor and note of 22d January 1846. " In doing so, he decides nothing which, in his view of the matter, at all touches the discipline of the Scottish Episcopal Church, in a proper question with its own members, as parties who have duly and voluntarily subjected themselves to it. But the whole dispute here hinges on the question, whether the defender, as clergyman of St. Paul's congregation, be or be not really so subjected ? And this again turns on the farther question, whether the ' articles and conditions of union, ' upon the observ- ance of which the only connection subsisting between the defender and that congrega- tion essentially depends, have or have not been infringed ; inasmuch as it is especially provided by the deed of union that none of those articles and conditions ' shall be infringed upon, without incurring the dissolution of the said voluntary union.' " The defender, no doubt, in point of fact, denies that there has been any such infringement, and, upon this assumption, contends that the voluntaiy union pac- tioually constituted between the parties .stands at this moment entire, and has to no effect been dissolved. He may be right or wrong in this. But the question whether he be so surely raises no case of privilege or jurisdiction, but is entirely a question of evidence for the consideration of a Jury. " If the defender, accordingly, had admitted the alleged infringement on his part of the articles and conditions of union — and the consequent dissolution thereby operated of the connection voluntarily formed between him and the clergyman and congregation of St. Paul's Chapel — it is not easy to see how he could, in that case, have asserted his Episcopal authority and jurisdiction, any more than if the union which alone brought the parties together had never been formed. But since the pursuer expressly puts his case upon an allegation of such infringement and dissolu- tion, although the defender disputes the truth of this allegation, the legal principle, as regards all questions of privilege and jurisdiction, is the same. " The defender founded much on the terms of the Scottish Canons, as establishing that there neither had nor could have been any such infringement. But this, as well as many other details on which the defence was supported in argument, itself resolves into a question of evidence. For the Court is presumed to know nothing of the con- stitution or canons of the Scottish Episcopal Church, any more than it does of the constitution and bye-laws of any other body of Dissenters, unless in so far as- they may be duly put in evidence. "All argument of this kind, however, will of course be open to the defender * DECIDED m THE COURT OF SESSION. 361 The defender reclaimed. Pleaded for pursuer : — 1. The subject-matter of the conclusions of the libel is within the jurisdiction of this Court. 2. The plea of privilege maintained by the defender is inapplicable and excluded, by reason of the pursuer's connection with the Scottish Episcopal communion having ceased before the sentence on which this action is laid was pronounced. 3. It is also inapplicable and excluded, by reason of the union of St. Paul's Chapel to that communion having, ere then, come to an end. 4. It is further excluded, by reason of the sentence being unwar- ranted by the canons of the Scottish Episcopal communion itself, the subscription to which, on the part of the pursuer, forms the ground of the claim of ecclesiastical jurisdiction over him by the defender, and having been pronounced in violation of the provisions thereof, and without the notice and summons thereby required. 5. The defender never having had any ecclesiastical authority over the pursuer, except the pactional authority arising from his acceptance of the charge of St. Paul's, and in reference thereto no sentence pro- nounced by him could affect the pursuer's status or privileges as a minister of the Church of England, or his right, as such, to the benefits of the 10th of Queen Anne. 6. That pactional authority having been come under with reference to and subject to the conditions of the deed of union, and these having been violated, whereby the union was, ipso facto, dissolved ; and the union, which was not binding on the constituent members, having been entered into contrary to the provisions of the constitution, having, further, been lawfully dissolved by act of the constituent members, it no longer subsisted to any effect or extent when the pro- ceedings in' question were taken, even irrespective of the other steps adopted for bringing it to an end. 7. The sentence in question is altogether inept to affect the pursuer's status or privileges as a minister of the Church of England, or his right, as such, to the benefits of the 10 th of Queen Anne, or to affect the pursuer's rights and interests as minister of St. Paul's Chapel, in a state of separation from the Scottish Episcopal communion. before a Jury ; and it is very possible that, as tbe evidence turns out, a sufficient case may be made to support the defender's view both as to his own privileged character upon the whole matter, and as to the incompetency of this Court (the facts being then ascertained) to interfere with the course which he has followed. But in the present stage of the case it would seem premature for the Lord Ordinary, in the face of the pursuer's averments, to take all this for granted. And it is therefore for the express purpose of having the disputed facts expiscated that the action has been entertained, and the jurisdiction and competency of the Court given effect to. " In a word, the union of the parties having here arisen solely from private contract, the Lord Ordinary does not see how any question turning upon the alleged infringement and dissolution of that contract can be withdrawn from the jurisdiction of the Court in this, more than in any other case." 362 LEADING ECCLESIASTICAL CASES • 8. The sentence being a false and slanderous libel, and the pursuer having suffered in his ecclesiastical and patrimonial interests, and his feelings, from its being issued and published by the defender, is entitled to reparation therefor.' Pleaded for defender : — 1. The declaration of rejection complained of being an ecclesiastical and judicial sentence in spiritualibus, regularly pronounced by the defender, with his clergy sitting in lawful Synod, in^ his ecclesiastical character as a bishop of the Protestant Episcopal Church in Scotland, of which the pursuer was a minister, cannot be called in question by the pursuer, or interfered with by a Civil Court. 2. The pursuer having bound himself to obey his ecclesiastical superiors, and not to appeal from any ecclesiastical sentence to a Civil Court, but acquiesce in the decisions of the ecclesiastical authorities, in all questions falling under their jurisdiction ; and having, if he felt himself aggrieved, the remedy of appeal open to him, which he has not used, is not entitled to insist in the present action. 3. The pursuer's plea against the competency of the defender exercising spiritual jurisdiction over him, on the alleged ground that the union of St. Paul's Chapel and the Scottish Episcopal Church had previously come to an end, is untenable, in respect (1.) The deed of union has never been infringed upon by the defender or the Episcopal Church, and is still a subsisting, valid, and binding agreement, not set aside or reduced by any competent court ; and (2.) Even had the deed of union been set aside by a Civil Court, the pursuer could not, by such a judgment, free himself from the spiritual jurisdiction of the defender, even had he been the pastor of St. Paul's before its union with the Scottish Episcopal Church, which he was not. 4. The pursuer's plea against the competency of the defender exercising spiritual jurisdiction over him, on the alleged" ground that his connection with the Episcopal Church had previously ceased, is untenable, in respect (1.) The defender insisted on retaining possession of the cure and chapel of one of the congregations of said Episcopal Church ; and (2.) That even bad he resigned his office simpUciier, he could not thereby " be a gainer by declining justice," and free himself from the spiritual censures of the Church judicatories. 5. The spiritual sentence of rejection pronounced by the defender and the Episcopal Synod of Aberdeen against the pursuer, was in strict conformity with the canons of the Church ; and even had it not been so in the particulars alleged by the pursuer, he had his remedy in the superior ecclesiastical court, and there alone ; such a judicial and spiritual sentence not being reviewable by a Civil Court, far less can it be there made the foundation of a claim of pecuniary damage. 6. The pursuer having abjured the authority of the Scottish Episcopal Church, and having intimated to the defender, as his bishop, that he no longer considered himself amenable to his jurisdiction, it 1 Attorney-General i>. Glasgow College, Collyer's Chancery Cases, ii. 665 — Reversed H. L. (not reported) ; Stephens' Laws Relating to the Clergy, i. 158, 824 ; Adam v. Allan, June 23, 1841, Session Reports, vol. iii. p. 1058. ■ DECIDED IN THE OOUKT OF SESSION. 363 was incumbent on the defender, in the proper discharge of his duty, to make known that he, the pursuer, had ceased to be a member of the Scottish Episcopal Church. 7. There being, by the law of Scotland, religious toleration in Scotland, and the Scottish Episcopal Church in particular, being recog- nised by the Act of Queen Anne, and 3d and 4th Victoria, and other- wise, its church judicatories are entitled to protection in the exercise of ecclesiastical discipline, and in the pronouncing of spiritual sentences. 8. Malice not being averred, this action cannot be maintained.' 9. No damage having been sustained by the pursuer, none is due. Lord Peesident (Boyle). — Notwithstanding the wide field of discussion on which the defender in this case thought fit to enter, and which necessarily led the pursuer to follow him, it does not appear to me that it is either necessary or proper to state at any length the opinion I have formed as to the course that ought at present to be followed by the Court, or to review minutely the various topics that have been so much enlarged upon before us. The only question we have at present to determine is, whether the interlocutor of Lord Ivory ought to be adhered to or altered ; and after all that I have heard I can discover no grounds for at present arriving at any other conclusion than he has done. That no privilege, or claim of jurisdiction, as it has sometimes been styled, has been established in the person of the reverend defender, so as to render it incompetent for this Court to take cognisance of the action at the instance of the pursuer, the Rev. Sir William Dunbar, when the summons, the record, and the various documents and productions referred to by the parties are attended to, seems to me a proposition that is most abundantly manifest. As all that the Lord Ordinary has done is "to repel the defences pleaded in respect of privilege, and to sustain the com- petency of the action as well as the jurisdiction of this Court to try the same," and as he only remits to the Issue Clerks that the cause may be prepared for trial in common form, it seems to be free from all doubt that the Lord Ordinary has adopted the only course that is proper under the circumstances. For surely it cannot be doubted, that even if the reverend defender can successfully establish that all that is complained of as to his proceed- 1 Greenshields v. Magistrates of Edinburgh, March 1, 1711, Robertson Ap. Cases, 11 ; Barnes u. Shore, Robinson's Eccl. Cases, p. 382 ; King v. Hart, Burn's Ecel. Law, ii. 198, and W. Blackstone's Repts., i. 305 ; Aokerley v. Parkinson, 3 Maule and Selwyn, 411 ; Borthwick on Libel, p. 62 ; Macqueen v. Grant, July 25, 1781, M. 7466 ; Robertson v. Preston and Campbell, Aug. 11, 1780, M, 7465 and 7468 ; Auohinoloss v. Black, Hume, 795. 364 LEADING ECCLESIASTICAL CASES ings by the pursuer, was protected and justiEed by his having acted only in the due exercise of the privilege he asserts to belong to him as bishop of the Scottish Episcopal Communion, acting with the assistance of his synod, it is still undoubtedly within the jurisdiction of this Court to try such an action as the present, concluding for damages on the ground of a grievous wrong having been inflicted, as set forth in the summons and record. For, supposing such an action concluding for damages had been raised even against one of the most eminent ministers of the Established Church of Scotland, no allegation of privilege on his part, or assertion that he was only acting in the exercise of his ecclesiastical functions, could be pleaded as a bar to the competency of the action, or to exclude the jurisdiction of this Court to try it. "We have had many such cases recently brought before us, in which reverend clergymen have been called as defenders, such as Smith v. Gentle, Adam v. Allan, and the case of Dudgeon against a minister of a parish in the north of Scotland, in all of which, while privilege and the exercise of ecclesiastical jurisdiction were pleaded in defence, nobody contested the jurisdiction of this Court to entertain the actions. The sustaining the jurisdiction of this Court, and finding such an action competent does not certainly preclude the defender from pleading on his privilege ; but that is not a reason for at once dismissing the action. Nothing is yet decided by the Lord Ordmary as to what form of issue may be necessary for the pursuer to adopt, and we are not at present arrived at that stage so as to be able to decide that no issue should be granted. All that has hitherto been decided is, that the reverend defender has shewn no such privilege as entitles him to object to the competency of the action, or exclude the jurisdiction of this Court to try the case. Such, then, being the shape in which the interlocutor of the Lord Ordinary truly presents the case to us, I hardly think it necessary to say more, because it is possible that when issues are prepared they may give rise to discussions on which it may become indispensably necessary for the Court to enter, and to deliver an articulate judgment regarding them. At present it appears to me to be premature for us to advert, with any degree of particularity, to the various topics on which so much was said on both sides of the bar. I am, however, quite satisfied that the defender has been entirely un- successful in shewing — notwithstanding his extensive and elaborate review of the history of the Scottish Episcopal Communion, beginning from its first legislative recognition in the Act of the 10th of Queen Anne, grant- ing it toleration and protection, after Prelacy had been totally abolished at the Eevolution, and the Presbyterian Church fully established, accord- DECIDED IN THE COUET OF SESSION. 365 ing to the Bill of Eights, and declared unalterable by the Treaty of Union, and tracing it down through the heavy pressure laid upon it in 1746, by the 19th of Geo. II., c. 38, and the repeal of that Act by the 32d Geo. III., 0. 63, and again extending to it equal toleration -with that granted to any other body of Protestant dissenters from the Church of Scotland — that any jurisdiction whatever was conferred upon its bishops, and cer- tainly nothing of the nature of privilege such as can exclude a court of law from entertaining an action such as the present, against any of its members. Neither can the late statute of her present Majesty 3 and 4 Vict., c. 33, though unquestionably recognising the order of bishops of the Protestant Episcopal Church in Scotland, apparently for the first time, and conferring, under certain limitations, the right on the bishops or clergy of the Scottish Episcopal Church in Scotland, to officiate in the churches of England or Ireland, provided they have been ordained by a bishop thereof, have any such eifect. This recognition of the order of Scottish Episcopal bishops cannot, however, aid the defender's objection to the jurisdiction of this Court, or establish his right to deal with the pursuer as complained of in the summons. And surely the late judgment and opinions in the House of Lords, in the case of Snell's exhibition, establish, beyond all controversy, that there exists in Scotland no Episcopal Church whatever, except as a distinct sect, fully recognised and protected under the Toleration Act. Keeping the record in view, then, if by public law the defender has no jurisdiction over the pursuer, who was not ordained by him, but by the English Bishop of Bath and Wells, it is, secondly, next to be considered, whether he had acquired it by voluntary agreement. This leads to what has been stated as to the union that took place between the defender and the Scottish Episcopal Communion and the pursuer. Sir William Dunbar's congregation of St. Paul's Chapel. That union certainly was entered into on conditions, any infringement of which, it is provided, should dissolve the union. The pursuer accordingly asserts that there was an infringement of the conditions in three particulars, which dissolved the union, and fully justified him in withdrawing his subscription to the canons, and from all connection with the defender and the Scottish Episcopal body, which he had joined under conditions only ; and, moreover, he contends, that having completed his resignation and separation, by complying with everything that was required by the defender himself in his own letters, and which the defender distinctly notified to the managers of St. Paul's Chapel as an accomplished event, the pursuer was no longer amenable to the defender or his synod ; and, therefore, that the sentence pronounced against him, and published to the whole Episcopal Church throughout 366 LEADING ECCLESIASTICAL CASES the United Kingdom, its colonies, and in America, in terms unprecedented for their severity, and directly calculated to ruin his character and prospects as a clergyman therein, convicted of a breach of ordination vows which he never had come under to the defender, is an injury for which he is entitled to reparation. That this action so laid is a relevant one, I don't think can be disputed ; neither do I mean to say that the defender may not be able successfully to defend himseK against its^ conclusions. For every plea of privilege, and of his having only acted in his spiritual character, which undoubtedly may attach to him even as belonging only to an acknowledged body or sect of Protestant dissenters, and of what is complained of being entirely according to the rules of that body (though, certainly, among all the voluminous productions that have been exhibited no sentence couched in similar terms has been hitherto laid before us) will, however, remain, for due consideration when the case comes to be tried. But, at present, while I purposely avoid saying more at this stage, I am compelled to state that the interlocutor of the Lord Ordinary must be adhered to. I have likewise purposely abstained from entering on those theological points of discussion that will remain for due consideration when the question as to the infringement of the conditions of the union' comes forward for determination ; and when it may become incumbent on the reverend defender to prove, if he can, that there is no real distinction whatever between the true communion service of the Church of England and that of the Scottish Episcopal body. I am, therefore, for adhering to the interlocutor of the Lord Ordinary. Lord Mackenzie. — I concur with your Lordship. I think that, as to the challenge of the jurisdiction of this Court, the argument utterly fails. Even if bishops had been established in Scotland we must have enter- tained such an action as this. Whether the defence is good or not is a dififerent question. This is an action of damages on account of a particu- lar act done to the pursuer. The defender pleads privilege. His plea just comes to this — that, as Bishop, he was entitled to do as he did — ^that he had right to do this in spite of all the circumstances here alleged against him. The Lord Ordinary has sent the case to a Jury ; and the question before us is, whether this judgment should be altered 1 The defender maintains that, even if all the facts alleged by the pursuer are true, yet there is no relevant case ; and that plea is embraced in the reclaiming note now before us. I am not in a condition to pronounce a finding of non-relevancy. We are not called on to pronounce a positive finding of relevancy, as in the Justiciary Court ; but I am not in a con- dition to dismiss the action for want of relevancy. The alleged wrong is DECIDED IN THE COUET OF SESSION. 367 a sentence convicting the pursuer of violating his duty — of breaking his ordination vows. — [Eeads it.] This sentence is published throughout Scotland and England — it is communicated to the two Archbishops of England, and to the managers of the pursuer's own chapel. If the case stopped there I am unable to say that there is not enough to found an action of damages for injury to the pursuer's character. But then the defence is, that this pursuer had joined the Episcopal Church of Scotland, and then that, without good reason, he had left it ; and that he became again an Episcopal teacher not connected with that communion as he had been before ; that in consequence of his doing so, this sentence was issued ; and the defender says that in these circumstances he was entitled in law to issue this sentence. That plea is one founded entirely on contract — not upon statute law. The plea must be, that the pursuer contracted to subject himself to such a sentence and publication in the circumstances admitted by him to have existed in this case. The question then is whether these circumstances afford sufficient evidence of such a contract ; I do not think so. I do not wish to decide another question which would arise if this contract were proved, the question whether it would be pactum ilUcitum. We do not allow parties to bind themselves to submit to all kinds of penalties. Suppose the contract had been that the pursuer, by acting as he had done, shordd have been liable to corporal punishment, to fine or to imprisonment, such an agreement could not be sustained ; and, therefore, it is a question whether an agreement that, upon doing what he has done, his character should be blackened in this manner, would be lawful. On that point I have doubts. But I repeat that I do not think the circumstances admitted by the pursuer afford evi- dence of such a contract. In the rules or canons of the Episcopal com- munion, which I have read, I have found nothing of the kind. The offence, which is there considered as the greatest, the giving up of the Church by one of its clergymen, is to be punished, according to these canons, by no such penalty as that which has been here inflicted — the only penalty inflicted for such an offence is dismissal. If a clergyman belonging to that communion should change from its doctrines, dismissal is the only penalty. If it can be made out that, beyond these canons, there has existed a recognised practice authorising such a sentence as this, that may avaU the defender at the trial ; but this is not admitted, and cannot be assumed without trial. But further, the pursuer on his part avers that, on joining the Scotch Episcopal Church, he entered into a special agreement with the defender, as representing that Church, that the doctrines and forms of the Church of England were to be adhered to in his congregation, otherwise the union between that congregation and the Scotch Episcopal Church should cease ; 368 LEADING ECCLESIASTICAL CASES and he says that this agreement was violated by the defender, wherehy, in any view, the pursuer was entitled to leave that Church, without censure of any kind. I do not think we can refuse the pursuer an issue to try that fact. I am, therefore, for adhering to the iuterlocutor of the Lord Ordinary. Lord Fullerton. — The important matter here is, to keep distinctly in view the extent of the interlocutor pronounced by the Lord Ordinary., For I entirely agree with your Lordships in thinking that the terms of that interlocutor confine us within much narrower limits than those to which both parties extended the discussion in the course of the argument. All that the Lord Ordinary has done is to sustain the competency of the action, as well as the jurisdiction of this Court, to repel the defence of privilege, and to remit the process to the Issue Clerks, that it may be prepared for trial, in common form. The objection to the jurisdiction forms the subject of the defender's first plea in law, and is as foUows : — " I. The declaration of rejection complained of, being an ecclesiastical and judicial sentence in spiritualihus, regularly pronounced by the defender with his clergy sitting in lawful synod, in his ecclesiastical character as a Bishop of the Protestant Episcopal Church in Scotland, of which the pursuer was a minister, cannot be called in question by the pursuer, or interfered with by a Civil Court." The defence of privilege forms the ninth plea, and is, in the present stage of the process, inseparably connected with and dependent on the proposition assumed in the fiist, viz., that the sentence pronounced by the defender was so pronounced in virtue of the jurisdiction vested in him as a Bishop of the Protestant Episcopal Church in Scotland. In short, it is maintained that this Court has no jurisdiction, because the defender had the exclusive jurisdiction in the matter involved, in the sentence complained of by the pursuer. Now, I cannot entertain a doubt that the Lord Ordinary was perfectly right in repelling that defence. The jurisdiction of a Bishop of the Protestant Episcopal Church in Scotland has no existence. Indeed, though not expressly disclaimed, it was hardly asserted in the defender's argument, unconnected from the other point, to be afterwards considered, of the relative rights and duties created by special agreement between the parties. According to the definition of the civil law, jurisdiction is "potestas judieandi et exseguendi causas jure magistratus competem." According to our own, as laid down by Erskine, "jurisdiction is a power conferred on a judge or magistrate to take cognisance of and determine debateable questions according to law, and to carry his sentences into execution.'' And taking the widest construction of these terms " judge and magistrate," DECIDED IN THE COURT OF SESSION. 369 jurisdiction necessarily implies the existence of a power conferred by the State, and vested in functionaries sanctioned for that purpose by the State. Accordingly, we have various courts of civil, criminal, and fiscal jurisdic- tion ; and we have courts of ecclesiastical jurisdiction in our presbyteries, synods, and General Assembly. But, in regard to the Protestant Episcopal Church of Scotland, it appears to me that this Court, adminis- tering the laws of the realm, can recognise no jurisdiction whatever as existing in any official of that communion. They enjoy, it is true, tolera- tion, but merely as a body of private individuals, united by particular religious views, and associated for the laudable purpose of promoting those views. Bishops of course, are, in some of the tolerating Acts, recognised as existing de facto. But no office-bearer of their communion, or of any other merely tolerated communion, can lay claim to jurisdiction any more than the office-bearer of any private association. But this goes far to solve the only question now before us. Eor if there is here no jurisdiction, in the proper sense of the term, pleadable by the defender, the question truly resolves itself into one of agreement ; and that seems to be the import of the second plea in law. Now, there is no doubt that all parties entering into an association for purposes not prohibited by law, may effectually bind themselves to submit without appeal to the determination of certain matters, and even to the infliction of certain censures, by the official authorities to whom such power is committed by the terms of the association ; and if it could be instantly shewn, without any further enquiry, that, by the admitted or proved circumstances of this case, the defender had absolutely bound him- self to submit to such a sentence as that for which he now seeks redress, the defence in the second plea in law might have been sustained, and the case sent out of Court. But can it be said with any show of reason, that the case does stand in that situation? or that the Lord Ordinary was wrong in holding that there were various matters of fact here, on which the parties were at variance, and which required to be ascertained in the usual way, before the case could be disposed of. In the First place, when the defender's case is put, not on jurisdiction, where I think it cannot rest, but on the terms or conditions of that private association designated the Protestant Episcopal Church in Scotland, the defender cannot advance a step without proving the nature and extent of his rights and powers as a Bishop of that Church. We, administering the law of Scotland, are presumed to know the nature and limits of the jurisdiction of the various constituted authorities. But of the rights and powers of a Bishop in the Scottish Episcopal Church we can know nothing until they are established in evidence, like the terms and conditions of any other association. 2b 370 LEADING ECCLESIASTICAL CASES Secondly, The nature of the alleged agreement in this case presents additional difficulties. It is one of a very peculiar kind. The minister and congregation of the English Episcopal Chapel at St. Paul's at Aber- deen, perfectly entitled to keep themselves separate if they chose, volun- tarily united on certain terms with another hody, that of the " Protestant Episcopal Church in Scotland." Now, unless the contrary could be clearly proved by the practice and understanding in analogous cases, I, as at present advised, should rather think that a union of this kind was not indissoluble, but might be legally severed, so soon as either party found that the union did not tend to that advantage and edification which formed the moving cause of its being entered into. But, independently of that, the union was entered into here upon certain special terms, and each party charges the other with the violation of those terms. Here, then, we have another point which requires elucidation. Most assuredly there are various matters in regard to an agreement of this kind to be cleared up, before any satisfactory conclusion can be come to on the merits of the case. For I concur in the remark made in the course of this discussion, on the part of the pursuer, that this agreement does con- tain within itself the seeds of difference, which were not very likely to lie dormant. The union is, in one of its most important points, held together by a very precarious tie. Though the great object of a liturgy or established ritual is to secure absolute uniformity, it would seem that in one most important matter, that of the celebration of the communion, this supposed agreement recognises two forms, the one, that of the English Book of Common Prayer, and the other, what is called the Scottish Com- munion Office ; and it cannot be well said that the difference between these two is immaterial. On the one hand, a great many persons of the Episcopalian Communion, and, in particular, the congregation of St. Paul's, Aberdeen, expressly stipulate in the deed of union, " for the continued use and preservation (inter alia) to the chapel, of the exclusive use of the liturgy, including the catechism of the Church of England, none of which rights and privileges shall be infringed upon without incurring the dis- solution of the said voluntary union." And though the same deed binds them to require the incumbent to subscribe the canons of the Scottish Episcopal Church, it is under this reservation, " but always in accordance with the continued use of the Book of Common Prayer of the Church of England." It is clear, then, that the exclusive use of the English liturgy — in other words, the rejection of the Scottish Communion Office, in the points in which they differ — was held essential by the congregation of St. Paul's. But, on the other hand, it would appear, from some of the disclosures made in the course of the argument, that there is a considerable party in DECIDED m THE COURT OF SESSION. 371 the "Episcopal Church in Scotland" who hold the variation from, or addition to the English Liturgy contained in the Scottish Communion Office to be an essential improvement ; and it is provided by the 21st Canon, that the Scottish Communion Office shall be held of primary authority, and shall always be used on certain specified occasions ; so that we have a ritual, declared to be of primary authority, which yet one part of the United Church is held entitled to reject. I am little qualified, and certainly not disposed, to volunteer an opinion on the merits of this difference. All that I can say is, that it is not very wonderful that this diversity of opinion and ritual led to the practical differences which afterwards occurred, such as that of the defender declin- ing to participate in the communion in the Scottish form in December 1842, after preaching the sermon in St. Andrew's Chapel. I can easily see that there is great room for the question, whether the incumbent of a chapel, of which the congregation stipulates for the exclusive use of the English office, could be bound to violate that condition in his own person, by the mere change of place ; and that, too, on an occasion which does not seem to fall within the cases contemplated in the 21st Canon, as those in which the employment of the Scottish Communion Office was to be imperative. I give no opinion upon this. It is quite possible that the defender may make out his case upon the known and recognised practice in analogous occasions, and to which, indeed, he refers in the record. But until it is so made out we cannot assume it as proved. The same remark applies to the refusal to encourage the collection for the Scottish Episcopal Society. It is clear, by the terms of the union, the congregation of St. Paul's were not bound to make such collection, having reserved to themselves the right over the funds and collections of St. Paul's Chapel ; and if so, it is not easy to see how the incumbent of that chapel, by adhering to the condition, and refusing to recommend the collection, if he thought it likely that it would be applied to purposes repugnant to the religious views of the congregation, made himself in any way responsible for the consequences. On the whole, then, it would appear that there may be a question, whether de facto an occasion had not occurred, justifying a separation, and a recurrence of St. Paul's Chapel to its former situation, as an English Episcopal congregation, independent of the " Episcopal Church in Scotland." Thirdly, There is another point on which the parties are at variance — whether, by the correspondence, and, in particular, that which took place in May 1843, the pursuer had not, with the concurrence of the defender, ceased to be any longer a member of the Scottish Episcopal Church, and, consequently, to be subject to his control. It is no doubt possible that, by the practice of that Church, even after the withdrawing 372 LEADING ECCLESIASTICAL CASES of a party from the communion, and after the acceptance of that with- drawal by the ecclesiastical authorities, they still have the power of announcing his falling away by a formal sentence of excommunication. But that would require to be proved. And, Lastly, and even supposing this to be made out, it remains to be shown that the special sentence actually pronounced, was in accordance with that practice. I wUl not quote it, but certainly, to the uninitiated, it bears the appearance of a denunciation hardly warranted by the offence — viz., the retractation by an ordained presbyter of the Church of England, of his voluntary submission to a Scottish bishop, to whom he was not bound by his ordination vows to yield obedience. So far as we can read the Canon, in virtue of which the sentence was pronounced, it does by no means necessarily warrant such a sentence : — " It is hereby decreed, that if any clergyman, whether bishop, clergyman, or deacon, shall disobey any of the above canons, he shall, after the first and second admonition by his proper judge^ be rejected and publicly declared to be no longer a clergyman of the Episcopal Church in Scotland." It may be that this tremendous denunciation — this declaration of forfeiture of the whole of the pursuer's rights as an ordained presbyter, is merely the usual techni- cal form iu which the Episcopal Church in Scotland declares a party to be no longer a clergyman subject to a Scottish bishop. But it will require some pretty strong and clear evidence to make out that point, and, until it is so proved, we cannot hold the defender, who not only pronounced the sentence but published it in the way most offensive and injurious to the pursuer, to stand free from the consequences. On the whole, I entirely agree with the Lord Ordinary, that as juris- diction, in the proper sense of the term, is entirely out of the case, and as the question turns upon the terms of an alleged breach of agreement, there exist various points on which the parties are at variance, and which must be ascertained in the usual way. What may be the practical result of the remit it would be out of place to enquire. In framing the issues, there may be difficulties ; for anything I know there may arise, in the framing the issues, questions which we may be called upon to determine. But, in the meantime, we cannot anticipate those difficulties. All that we do, by adhering to the Lord Ordinary's interlocutor, is to follow the usual course in all cases of the kind for ascertaining matters of fact on which the parties are at variance. LoED Jepfbet. — I concur entirely in the judgment now to be pro- nounced ; and in the proper and laudable resolution of avoiding saying anything at this stage of the case which may leave the case of either DECIDED m THE COUET OF SESSION. 373 party less open before tlie Jury, I shall follow the example of yoiir Lordships. I entirely concur in holding that the defender's challenge of the juris- diction of this Court to try this cause is not maintainable. We have in repeated instances, and very lately, proceeded against and censured what we considered abuses of authority on the part of the proper ecclesiastical tribunals of this land, whenever civil interests were involved — though in form the points decided by these tribunals were proper points of discipline. Your Lordships did not hesitate — perhaps some did^but the Court did not hesitate to do this. And if we so dealt with our own venerable Establishment, if we controlled its authority when it pronounced such decisions, can we be in the slightest degree estopped or barred from administering justice between the lieges of this land in a question of patri- monial interests, or of larger interests still — a question affecting reputation, by the circumstance of one of them calling himself a bishop, and holding what he calls a synod in some corner of this Presbyterian country ? This point seems to me so clear, that beyond this I shall say nothing. As to the defence of privilege, there is some ambiguity in the term as it has been dealt with by the Lord Ordinary, in the argument at the bar, and now by your Lordships. I put the question in the course of the discussion, whether what was meant to be pleaded under the term privilege was the assertion of an independent public j urisdiction, which the defender was entitled to exercise ? or whether the term was used in the more restricted sense, that this was an action which could not be maintained without an express averment of malice ? I rather think the Lord Ordinary understands it in the first sense. But even if he intended the second, I think that he is just as clearly in the right. This is an action to recover a large sum of damages on account of what no one can dispute to be a most serious attack upon the moral, religious, and professional character of this reverend pursuer. And the question of jurisdiction being laid aside, the only plea which can be brought forward is, that this was done ex contractu, or, I should rather say, ex consensu — an allegation, that is, that the pursuer had consented and agreed to submit to 'such imputations whenever the defender might see fit to indulge in them. Now, if there ever was any ground for averring that there was such a contract, it is certain that, at all events, it was a contract which depended upon continued consent for its endurance. My difficulty, therefore, would rather have been, whether it was possible to state a relevant defence, consistently with the facts averred by the pursuer, than whether the action was laid upon relevant grounds. Even if the usual principle were reversed — if, instead of assuming the truth of the pursuer's case, we were bound to assume the truth of the defence, I would doubt 374 LEADIFG ECCLESIASTICAL CASES the relevancy of that defence. I am unable to see how any allegation, even of familiar and common practice, in this respect could be relevant. Are we, then, now to sustain this defence, and at once to dismiss this action, in the face of an averment that this was a conditional engagement — an engagement embodying an express stipulation for its virtual dissolu- tion, in events that are alleged to have occurred — a condition that, if certain immunities or privileges thereby stipulated were infringed upon, the contract should entirely cease 1 Tliese stipulations, it is distinctly stated, were broken on certain occasions. There must, of course, be proof before the Jury as to these things. But looking only at the admissions on the record, my present impression is that both the stipulations were broken ; or, at all events, that it is quite extravagant to say that they were so clearly observed as that the allegation as to their breach should not be admitted to probation. It may be open to the defender to prove usage. But, prima facie, considering the importance attached to the exclusive use of the English liturgy, I cannot but consider that stipulation as one intended to give a personal protection everywhere against the other service. What was intended to be protected was not merely the nave and aisle of St Paul's. To complain of the pursuer as guilty of an impropriety, as having committed a clerical offence, because, after taking part in that portion of the service which was unobjectionable, he refused to remain and to partake in that portion of it against which he conceived himself protected — that, I think, was an infringement of the conditions. In the same way, as to the funds, I hold that there was an undue interference. The proposed collection was for a body not identical with St. Paul's. I therefore think there is here enough to raise the question, whether there was any jurisdiction when this sentence was issued, any more than there was before the union was entered into — any more than the defender could have exercised over any clergyman of the Church of England, con- ducting public worship at a place locally situated within what he calls his diocese. In this country we have no such word, and I do not know what it means in a discussion before this Court. Besides all this there is distinct proof, or, at all events, precise and relevant allegation, that the defender himself had distinctly admitted the dissolution of the pursuer's connection with his body of dissenters before he proceeded to fulminate against him, as still subject to his authority. But, independently of every- thing else, my own impression has all along been, that, considering that this separation was admittedly conscientious, I should require much more than anything here stated in answer to the complaint of injury to the pursuer's feelings and moral character. There is in this sentence an excess of language quite unpardonable ; and, for this excess I am afraid this defender has made himself responsible. I cannot conceive stronger DECIDED IN THE COURT OF SESSION. 375 language than, is here used. It is said, among other things, that the pursuer has been guilty of a violation of his ordination vows. To me he seems rather to have been a martyr to his ordination vows. These were taken to an English bishop, and included an engagement to uphold and adhere to the liturgy of that Church ; and it is manifest that the separa- tion which is here stigmatised as sinful and schismatical, was prompted mainly by a desire to adhere to the liturgy. Yet this sentence declares that henceforth his ministrations are devoid of all authority, and that he has ceased to be a member of Christ's mystical body. All this, too, is said without any explanation whatsoever. J£ this had been done secretly -^if the sentence had been consigned to a sealed book, one might feel nothing but surprise, compassion, and other such feelings ; but, on the contrary, there is the fullest pubUcation. I must say that I wonder much, that when it is admitted tbat what was done by the pursuer was done conscientiously, such a separation should be treated as sinful. The pur- suer, though no longer within the pale of the same Church, at least remained within the pale of Christian charity. I should otherwise have deferred to the jargon used in such sentences — if I may presume so to call it — but when I see the tenor of the present one I cannot do so. If privilege be used in the narrower sense, as implying that there must be an averment of malice, that is a question upon which there have been recent and important decisions of the Court — importing, what I have always been inclined to hold, that no broad line can be drawn, on one side of which such an averment is necessary, while it is not so on the other. If by the breach of contract there was an entire cessation of authority, then eadit qucestio, there are no termini habiles for sustaining this defence. The case, therefore, must go to the Jury to ascertain the disputed facts as to whether there was a breach of the contract and a dissolution of the union or not ; and whether the defence of privilege implies the broader or the narrower meaning of the word, its validity can only be properly tried after the facts are put in evidence ; and, therefore, I think the Lord Ordinary is in either case right. The Court adhered. Cunningham & Walkbe, W.S. — C. G. Ebid, W.S. — Agents. 376 LEADING ECCLESIASTICAL CASES June 28, 1850. William Edwards, Pursuer. — Cowan — P. Fraser. "WiLLLAM Begbie AND OTHERS, Defenders. — Lord-Advocate Rutherfurd — Inglis — E. Fraser. Dr. George M. West, Defender. — D. Machenzk. First Division.- — Lord Cuninghame. Jury Trial. Reparation — Slander — Church — Dissenters — Privilege. — An action of damages against the vestry of an Episcopal chapel for slanderous words used in resolutions come to by them in their character of vestrymen, will lie at the instance of a member of vestry, provided the injury is charged as having been done maliciously, and without probable cause, or in violation of duty ; — Terms of issues settled as applicable to such a case ; and also in reference to the publication of the resolutions from the pulpit by the clergyman. This was an action of damages at the instance of William Edwards, a vestryman of St. Paul's Episcopal Chapel, Carrubber's Close, against (1) William Begbie, Thomas Houlden,'and Alexander Lockhart Wilson, as members of the vestry of that chapel, for alleged false, malicious, and calumnious statements made by them in resolutions passed by them in their character of a vestry ; (2) against these parties, along with John Boyd, and the minister Dr. West, for publication from the pulpit of these statements ; (3) against John Stevenson and Alexander Lockhart Wilson, and the Proprietors of the Edinburgh Evening Cowant, for pub- lication of these statements in that newspaper j (4) against Wilson and Stevenson for an assault on the pursuer. The averments of the pursuer on the record were to this effect : — The Chapel of St. Paul's, Carrubber's Close, was regulated by a deed of constitution, which contained various regulations with regard to the vestry. By article second it was provided that vacancies were to be supplied by a majority of the vestry, at a meeting to be called for that purpose ; by article third, that the office of vestryman should be held for life, or good behaviour, but might be vacated by resignation, or by leaving the chapel, or ceasing to hold a seat therein ; and upon any of these contingencies the vestry might, by a vote, declare the vacancy, and proceed to fill it up, as directed by article second ; by- article fourth, that a vacancy might be declared, in case of scandalous immorality or delinquency of any member, "such vacancy to supervene upon a vote of the majority of the members, proceeding according to equity and conscience," but, from the vote, an appeal to lie to the Bishop of the Diocese, should the vestryman feel himself aggrieved ; by article nineteenth, that all meetings were to be called by the treasurer, but might also be called by any two members of vestry, " the purpose of meeting to be mentioned at calling the same ;" and, by article twenty-third, that three members were a quorum, and that without that number no meeting to proceed to business. The pursuer was, in the beginning of the year 1846, elected one of DECIDED IN THE COURT OF SESSION. 377 the vestrymen, having for some time previously been connected with the congregation ; and at this time the vestry consisted of seven mem- bers, but three of whom subsequently resigned, and another member was elected. The vestry thereafter, for some time, consisted of five members, viz. : — John Muir, treasurer ; the three defenders, Thomas Houlden, William Begbie, and Alexander Lockhart "Wilson, and the pursuer. From information which had been communicated to him, the pursuer found it necessary, some time in February and beginning of March 1847, to bring certain charges affecting the moral character of Dr. West under the notice of the other members of the vestry, and of the Bishop of the Diocese. This led to communications with Dr. West and proceedings before the vestry, and, on 17th March 1847, a meeting was held, the purpose of which was stated in the notice issued by the treasurer, to be, " to take into consideration the letter addressed to me by the Eev. Dr. G. M. West, of the 3d inst." The pursuer attended this meeting, at which it was resolved that Dr. West should lodge written answers to the protest which had been lodged by the pursuer ; and the pursuer was ordered to lead proof, within four days after such answers should be served on him. Dr. West lodged no answers to the pursuer's protest, in terms of this appointment. The defenders, Begbie and Wilson, were present at this meeting. The said defenders, and the defender Stevenson, thereafter having conceived groundless malice and ill-will towards the pursuer, issued and circulated, or caused to be issued and circulated, to the members of the vestry, a notice dated 22d March, con- taining a false, calumnious, and malicious statement, in the following terms : — " Business — To demand the expulsion of William Edwards from the office of a vestryman, on the charges of gross lying and false- hood, to be preferred and substantiated by Mr. Wilson against him, the said William Edwards," etc. This notice was subscribed by the defenders, Begbie and Wilson, and was holograph of the defender Stevenson, acting in the capacity of " vestry clerk." The meeting thus called did not take place, on account of the indisposition of the treasurer. Thereafter the defenders, Wilson, Begbie, and Stevenson, concurred in caUing another meeting of vestry to be held on 26th March 1847, the notice, written by the defender Stevenson and signed by the defenders Begbie and Wilson, being dated 25th March 1847, and stating : — " Business — To increase the members of the vestry, and to require the expulsion of William Edwards therefrom." This notice was received by the pursuer through the Post-Office on 26 th March 1847, at ten o'clock forenoon ; the meeting itself being to take place at eleven o'clock. No further notice or specification of the business for which the meeting was called was given or served on the pursuer. Immediately on receipt of the notice the pursuer waited on John Muir, the treasurer, and having ascertained that he was unable to attend, the pursuer stated to the defender, Dr. West, then present, that he could not attend in consequence of a previous engagement ; and Mr. Muir desired West to deliver a message, which he agreed to take, to the defenders Begbie and Wilson, that as there were only other two vestrymen, in absence of the pursuer and himself, no legal meeting of 378 LEADING ECCLESIASTICAL CASES vestry could take place. The defenders Begbieand Wilson, notwith- standing, did, in furtherance of their malicious feelings towards the pursuer, aided and abetted by the defender Houlden, actuated by the same feelings, and who had previously resigned, illegally and irregularly hold a pretended meeting of the vestry, at which, in the absence of the treasurer, they pronounced, and caused to be engrossed in a minute dated 26th March 1847, a resolution or sentence, containing and bearing to proceed upon false, calumnious, and malicious statements, deeply affecting the character of the pursuer.' Further, on the false allegation that these charges were fully proved, the said minute set forth that the defender Wilson moved the expulsion of the pursuer from the office of vestryman ." as being unworthy to take any part in the business and councils of God's house;" and which resolution or sentence was set forth as having been seconded by the defender Boyd, and to have been unanimously adopted. And in reference to this sentence, the defenders engrossed in the said minute the false and calumnious charge that the pursuer had been guilty of " a fearful per- version of truth." The minute containing these false, calumnious, and malicious statements, bore to be subscribed by the defenders, Begbie, Houlden, Wilson, and Boyd, and was in the handwriting of the defender Stevenson, and was written, agreed to, and subscribed by them, and each of them, actuated by and under the influence of malice and ill-will groundlessly conceived towards and against the pursuer ; and the charges and statements it contained were made maliciously, for the purpose of injuring the character of the pursuer, and degrading him in the opinion of the congregation and of the public. The pursuer next day received a letter from the defender Stevenson, dated 26th March 1847, stating that he was directed by the vestry to intimate the pursuer's expulsion, " on charges preferred and substantiated against you (the pursuer), and as being unworthy to take any part in the business or councils of God's house." The minute passed upon the occasion was not communicated to the pursuer, neither was any speci- fication given to him of the charges alleged to have been preferred and substantiated. At the above meeting the four defenders above mentioned authorised and appointed Dr. West to publish the sentence or resolution to the congregation ; and, accordingly. Dr. West, as so authorised and appointed, did maliciously read and publish from the pulpit, at each of the diets of public worship — morning, afternoon, and evening — on Sunday the 28th of March 1847, in the audience of the persons then assembled, the sentence against the pursuer, embodying the false, calum- nious, and malicious statements, that the pursuer had been expelled from the office of vestryman, " on the charges preferred and substantiated against him, and as being unworthy to take any part in the business or the councils of God's house," and representing the pursuer as having been guilty of wilful falsehood, and as being unfit, from his conduct, to hold the office. This publication from the pulpit was not authorised by the constitution, and was inconsistent with established usage ; and ' The minute of the vestry will he found infra. DECIDED IN THE COUET OF SESSION. 379 the parties concerned in it, including Dr. West, were actuated by groundless ill-will and malice against the pursuer. Thereafter two of the defenders, Stevenson and Wilson, falsely, injuriously, and calumniously inserted and published, or caused to be inserted and published, an advertisement in the newspaper called the Edinburgh Evening Courant, dated 1st April 1847, and being No. 21,481, in the following terms : — " Diocese of Edinburgh.- — At a meeting of the vestry of St. Paul's Episcopal Chapel, Carrubber's Close, held 26 th ult., Mr William Edwards, residing at Wood's lodgings. Prospect Build- ings, Abbey, was expelled the office of 'a vestryman of said chapel, on charges preferred and substantiated against him, and as being unworthy of taking any part in the business and councils of God's house," meaning thereby to hold out and represent the pursuer as having been guilty of wilful falsehood, and as being, from his conduct, unfit to hold the oflSce of a vestryman in the chapel. The advertisement was irregular, and not authorised by the deed of constitution, and contained false, calumnious, libellous, and malicious statements against the pursuer. The pursuer availed himself of the power of appeal to the Bishop against the sentence of vestry of 26th March 1847, by lodging an appeal the day after it was pronounced, and duly intimated the lodg- ment to the parties. Pending this appeal, the pursuer attended at chapel on Sunday, 28th March 1847, in discharge of his duty to super- intend the offertory plate, when he was personally insulted, injured, and assaulted by the defenders, Stevenson and Wilson. These persons, first of all, attempted by themselves to seize hold of the pursuer, and to push him from his accustomed place near to the offertory ; and there- after they brought to their aid a policeman or policemen, into whose charge they wrongously and unjustly committed the pursuer, and who proceeded, acting under the directions of the said defenders, to remove the pursuer forcibly from the chapel. The defender Wilson, in the course of these proceedings, repeatedly shook his clenched fist in the pursuer's face, and both he and the defender Stevenson assaulted and struck the pursuer when in charge of the policeman. The pursuer was in this manner forcibly ejected from the chapel in the presence of the con- gregation, and was taken up the close or entrance to the chapel, and towards or into the public streets of the city, in custody of policemen. The Bishop of the Diocese, upon advising the statements of parties under the appeal entered to him by the pursuer against the sentence and resolution of the vestry of 26th March 1847, pronounced an award or decision, of date 4th October 1847, by which, while he repelled the pursuer's objections to Houlden's status as a vestryman, and his right to be present at the meeting in that character, found, in reference to the proceedings at the meeting, " that the notice or notices served upon the appellant (pursuer) were not specific nor timely, and, consequently, that the note for expulsion was not, as required by the constitution of the chapel, according to equity ; therefore sustains the appeal, and re- verses the sentence of expulsion appealed against." The conclusion was for damages for £1000. Defences were lodged by all the defenders. 380 LEADING- ECCLESIASTICAL CASES When the case was discussed in the Outer House, the sole point con- tested was, as to whether the pursuer was bound to insert " maliciously " and " want of probable cause " in the issues to be taken against the defenders. The Lord Ordinary reported the case with this as the sole point for decision.' But when the case came to the Inner House, the senior counsel for the defenders (Mr. Inglis) stated a new point, founded on the recent judgment of the Second Division in Sturrock v. Greig, Session Reports, vol. xi. p. 1220, viz. that the defenders here, in so far as they acted in their character of minister and vestry, were not amenable to the jurisdiction of any civil court whatever, and were not liable in damages for their resolutions and judgments, however mali- ciously and without probable cause these may have been passed. The Court, considering this a question of importance, stopped the argument, and pronounced the following interlocutor : — " The Lords, on report of Lord Cuninghame, having considered the draft of proposed issues and whole process, and having heard the counsel for the parties, before answer appoint the parties to prepare cases upon the points stated this day from the bar." Cases were accordingly lodged. Pleaded for pursuer ; — I. The law of reparation for slander may be reduced to three heads. Either the defender has, or he has not, a right to speak of the pursuer. If he has not, then he is liable, if the accusation is false. If he has the right, then he is protected, unless he maliciously makes the accusation. In the first case it is not necessary to state malice, as it is sufficient if falsehood and injury is proved ; but, in the second, malice must be stated and proved, as it is the ground of the action. Whether a case falls within the one class or the other, is a question for the Court ; and whether malice is proved rests entirely with the Jury." Besides these two classes of cases, there is a third class, which is now sought to be enlarged by the admission within it of persons holding the character of the defenders. This class refers to those limited cases where an absolute privilege of speech is given. The first instance is that of Parliament, in regard to which, by a usage coeval with the constitution itself, or at least dating its origin to a remote antiquity, every speaker within its walls has unlimited freedom of speech. This dangerous privilege is sanctioned by high considera- tions of public expediency, and has been thought necessary to the public good. It was given, too, to men supposed' to be elevated by educa- tion and rank above making any mean use of the powers they thus possessed ; and this, combined with many other restraining causes, has saved the privilege from being abused. ^ "The question at issue is, wlietlier the pursuer must insert a charge of malice and want of probable cause in the issue, relating to his dismissal as a vestryman, and the intimation thereof from the pulpit? The Lord Ordinary was disposed to think that such an ingredient is necessary, as the vestry have an undoubted right to expel offending members, as /or cause; and are not responsible even for errors in "the exercise of their duty, if they themselves have been honest and in Joroa jid&. But the tendency of the Court latterly has certainly been to limit the cases in which malice is required in issues ; and the case, in every view, deserves the consideration of the Court." = Per Lord Chief Commissioner, 3 Mur. Rep. p. 355. DECIDED IN THE COURT OF SESSION. 381 The case of the Supreme Judges of the land is rested upon a necessity equally clamant, though of another description. Their situation has placed them beyond the jurisdiction of any forum in which they could be sued ad civilem effedum, by a private individual for reparation. It is a maxim as old as the Eoman law, that jurisdiction cannot be exercised over those possessing superior or equal jurisdiction, — Par in parem non habet imperium. On this ground it was that in the case of Hagart's trustees v. Hope,' the Courts were compelled to hold an action charging the President of the Court of Session with judicial and mali- cious slander irrelevant. These two classes exhaust all the cases of absolute and irresponsible liberty of speech. II. In reference to all other persons, the great cardinal principle which lies at the foundation of the whole decisions, — that all pubHc officers in the character of judges are liable for the malicious abuse of their office, — has been illustrated and enforced by every variety of test, and by many judgments ; all these officers have been regarded unquestionably as possessing a privilege ; but in regard to all, that privilege was held to be no defence when the wrong complained of was averred and proved to have been maliciously done. All these decisions went upon the sacred principle that no man — whatever his rank or office — is above the law ; and that, wherever any of the lieges is injured, reparation by way of damages must be made to him by the wrong- doer.'' Sheriffs,' Magistrates of burghs,' Justices of Peace,' Meetings of Heritors,' Members of the Senatus Academicus of a University,' have all been held responsible in damages for malicious injury in the exer- cise of the powers of their respective offices. III. But it may be said that these cases refer to parties occupying certainly highly important, but at the same time, non-clerical offices, and that although such judgments have been pronounced with regard to the civil judges of the land, a different rule is applicable to ecclesias- tics. This can only be upon one ground, namely, the circumstance that the ecclesiastical jurisdiction enjoyed and exercised by the established ecclesiastical courts of this country is independent of all civil review. Their judgments of suspension and deposition, of censure and excom-r munication, cannot be appealed from to the Civil Courts, and re-heard there upon the merits. But when this is granted, no progress whatever is 1 June 1, 1821, 1 S. and D., 46. Affd. April 1, 1824 ; 2 S. Appls. 125. " Per Lord Justice-Clerk in Hamilton «. Hope, March 10, 1827, F. C. ; and in Fergusson v. Kinnoull, March 10, 1841, F. C. ; and per Lord Campbell, ibid., Bell's Appeals, p. 730, July 11, 1842. ^ Anderson v. Ormiston, Jan. 3, 1750, M. 13,949 ; Orr v. Currie, Feb. 22, 1839, Session Reports, vol. i. p. 551. * Leitch V. Fairy, July 27, 1711, M. 13,946. " Robertson v. Barclay, Dec. 13, 1827, 6 S. and D. 242 ; March 24, 1828 ; July 21, 1828 ; i Mur. 509 and 534 ; May 14, 1829, 7 S. and D. 601 ; April 8, 1830, 4 W. and S. 102 ; July 26, 1830, 5 Mur. 326. s Newlands ». Shaw, Dec. 2, 1833, 12 S. and D. 550 ; Sangster v. Hepburn, June 10, 1803, Hume, 617. ' Hamilton v. Hope, March 10, 1827, 5 S. and D. 569. 382 LEADING ECCLESIASTICAL CASES made to the conclusion that the holders of such ecclesiastical power are exempted from responsibility in civil damages for their wrongs. The Sheriff, in his small-debt court ; the Justice of Peace exercising his sum- mary jurisdiction ; the Senatus Academicus resolving upon the affairs of the University ; the Heritors making regulations relative to the poor, are equally independent of the review, by any civil court, of their judg- ment upon the merits. But, notwithstanding of this, they will be made responsible for malicious abuse of that independent power. No part of the jurisdiction of the Court of Session is more wholesome in its exercise than that which keeps inferior courts, on whom a power of final judg- ment has been conferred, within the strict bounds of their authority ; and this part of the powers of this Court received a notable illustration in the recent exercise of it against the Church of Scotland itself, in the memorable ecclesiastical controversy which only recently closed. In no case prior to that of Sturrock v. Greig was this doctrine of irresponsi- bility for malicious abuse of authority ever recognised. The first case is that of M'Queen v. Grant,' which was founded on as a direct authority in Sturrock v. Greig. It was a case where the minister of a parish had refused to give to two of his parishioners tokens of admission to the sacra- ment. The reason assigned for this was, that the minister believed that they were guilty of perjury. So far the minister did everything regularly and in order; but besides acting thus within his province, he went through the parish, retailing the story to all his neighhours. The two parties aggreived — husband and wife — raised their action of damages, and the point which the pursuers in that case pressed was, the slander tattled through the parish by the minister, and not what he had done judicially in refusing them a token. No malice or want of pro- bable cause was charged in reference to the refusal of the token. This case, therefore, has no bearing here ; nor has the case of Robertson v. Campbell,^ where the defender, a clergyman, had acted all along " with^ out any malice." So the case of Grieve v. Smith^ was one where a member of a congregation of Bereans was sued for damages on account of a charge made before the body against a brother member. It was a case of parties acting within a limited authority without malice, and with cause proved and established. The case of Auchincloss v. Black,* however, is an express authority, to the effect that a presbytery will be liable in damages for acts done by them in their judicial character, if " made and prosecuted in a malicious spirit." The doctrine was after- wards admitted in M'Lean v. Eraser,' which was an action of damages ' for malicious slander uttered by a member of Presbytery when sitting judicially as a member of court. In M'Dougall v. Campbell," the same view of the law was taken in regard to an elder of a parish ; and the point was finally set at rest by the decision in the case of Auchterarder.' 1 July 25, 1781, M. 7466. " August 11, 1780, Mor. 7468. ' Hume's Deo. 637 ; and Borthwick, p. 393. * March 6, 1793, Hume, 695. » May 19, 1823, 3 Mur. 353. « March 7, 1828, 6 S. and D. 742. 7 Einuoull V. Fergusson, March 10, 1841, F. C. ; affirmed, Bell's Appeals, p. 662. DECIDED IN THE COUET OF SESSION. 383 In that case, an ecclesiastical court, actuated certainly by no private malice against the presentee, — supported by all the higher judicatories, and by a zealous number of members of the Church, — appealed to the Confession of Faith as a defence to the reparation which was demanded at their hands. They refused to perform an act which they alone could do ; and all the answer which they gave to the summons of damages was this, — that they were a body distinct from the civil magistrate, inde- pendent of his authority, and amenable in no way to his jurisdiction. But, notwithstanding of all this, they were found liable in damages ; and this, too, in a case where malice was not alleged or proved. It was undoubtedly a case of abuse of the powers which the legislature had conferred upon that ecclesiastical court ; but it differed in nothing, except in being a lesser wrong from that which was charged against the Kirk-session of Blairgowrie, in Sturrock v. Greig, or than is now charged against the defenders. It was a wilful refusal to do something which the Presbytery were bound to do ; but that refusal had the excuse of being entirely destitute of any malice to the person injured, and as having the authority of the higher judicatories. But the Kirk-session of Blair- gowrie were also guilty (as averred), not merely of a wilful perversion of their authority — not merely of an abstinence from doing something, but of a positive and active injury perpetrated from the badness of their hearts and to gratify their feelings of malice and revenge. It cannot admit of question as to which of these two cases presented the greater atrocity ; and yet to these two cases there has been applied a different decision, which frees the greater delinquents and condemns the lesser. Finally, in Dunbar v. Skinner,' a bishop was held liable in damages on account of slander charged as malicious, and contained in an ecclesias- tical sentence pronounced by him. IV. The case of Sturrock v. Greig, therefore, stands alone, without sanction in principle, without warrant in authority. But at all events, whatever might be the weight due to judicial dicta, the judgment itself was no precedent here. 1st, The defenders there were a court established by law, declared irresponsible to the civil power by Act of Parliament ; here the defenders are a vestry, or secular trustees merely, of a tolerated sect. It is not a court in any sense of the term. Secondly, the proceedings of the Kirk-session of Blairgowrie were all regular ; here the proceedings of the defenders were set aside by the bishop as irregular and ultra vires. Thirdly, there is a great distinction between the case of the courts of the Established Church and the meetings or sessions of dissenters. In regard to the on e, th e legislature has established proper courts, with the right to exercise a jurisdiction, peculiar and limited, but certainly possessing the chara/)ter of proper jurisdiction. Dissenting sects, on the other hand, stand in a totally different position ; for, except that in so far as they are tolerated by the law, the law knows them not. They do not form one of the institutions of the country, recognised and established ; and their meetings for the exercise of discipline, or for the management of their civil and ecclesiastical affairs, do 1 March 3, 1849, Session Reports, voL xi. p. 945. 384 LEADING ECCLESIASTICAL CASES not possess, in any one particular, the character of a court. But though the law will not interfere to alter or reverse the proceedings of dissenters as amongst themselves, and regarding merely their quality and capacity of dissenters, yet it will not suffer any wrong to be done them as indi- viduals, contrary to the general principles of justice and the common law of the country. It will not allow individuals among the dissenters to be defamed or injured by any body, whether assuniing the character of a court or not. By becoming a member of a religious community a party does not cease to be a subject of the state, nor does he lose the benefit of its laws. No man can renounce the protection which these laws confer upon him, any more than he can renounce his allegiance or withdraw himself from the punishment which they impose on the commis- sion of crime. No man wUl be allowed thus to resign his natural rights ; and if he can shew that he has received manifest injustice, not as a dissenter, but as a subject, he is entitled to claim reparation, and to insist that the authority, which was merely tolerated, should not be abused, contrary to the very end and purpose of the toleration. Now, as the defenders had no jurisdiction, in any sense of the term, over the pursuer, the sole ground upon which they could claim a right to inter- fere with him, or to speak of him, must be in consequence of his own voluntary agreement. Their right arises from contract; but the pursuer never contracted or agreed that the vestry should have a right of slandering and defaming him in order to gratify their own private malice. If he had done so, his conduct would have been a pactum illicitum, contrary to good morals, inconsistent with the peace of society, and with religion itself. Pleaded for defenders, the Vestry, I. The law of Scotland recognised in Church Courts, and in the courts of Dissenters, a privilege which exempts them in cases like this, from responsibility. The defenders therefore maintain that, looking to the principles adopted in prior cases,' it is impossible to come to any other conclusion than that, having acted simply and solely as members of a body which, whether a Court in the proper and legal sense of the term or not, had certainly the power, and were entrusted with the duty of expelling an offending member; — having done all they did in regular and competent form ; — there being no allegation made by the pursuer of any one act or circumstance tending to cast suspicion on the bona fides of their proceedings — ^they are entitled to that protection which has been extended to all parties brought into Court in. similar circumstances. The defenders have neither any necessity nor desire for maintaining that the position in which they were placed is such as to afford them an absolute protection whatever the nature of the case might be which the pursuer could establish against them. They do not now deny that it is possible to figure circumstances occurring of such a description as might form an effectual bar to their maintaining the plea of privilege. If the pursuer had stated such a case against them as clearly shewed that in their proceedings they were actuated, not by a desire to do their duty, but to ' Robertson, Grieve, M 'Queen, Auchincloss, Session Reports ; Borthwick on Libel p. 62. ' DECIDED IN THE COURT OF SESSION. 385 gratify feelings of malice — that their official situation was only a cloak which they assumed for the purpose of inflicting injury upon him — they admitted that they would be entitled to no such protection as they claimed. But what they contended for is, that such is not the nature of the pursuer's case. II. There may be cases imagined where the existence of malice, in a certain sense, would not necessarily infer the loss of the plea of privi- lege. It has, possibly enough, happened that one or more of a body of men performing such a duty as was here imposed on the defenders may have found the performance of that duty not an unpleasant task, and felt that they gratified their feelings while punishing a delinquent. But the mere fact of the gratification of feelings in themselves perhaps not very creditable, being concomitant with the execution of an act of duty, will not deprive that act of its proper character, nor the person dis- charging it of the protection derived from its character. The nature of the malice must be very different. It must be such as substantially to be the foundation of the proceedings complained of — such as to give the whole tone and colour to these proceedings, and to exhibit the parties in the situation of making a mere pretext of the office which they held for the purpose of prosecuting and carrying out their own malicious designs. It must, in short, be such as plainly to indicate that they were not acting in lona fide, but were dishonestly perverting the office which they enjoyed into an instrument of injury and oppres- sion. Is it then enough for the pursuer simply to designate the pro- ceedings he here complains of, in themselves regular and apparently performed in discharge of duty, as malicious, in order to render his action competent 1 The competency of the summons must be deter- mined, not by the phrases used, but by the facts stated ; and if there are no facts bearing out or justifying the pursuer's charge of malice, there is no competent action, because there is no competent statement of a case against them. The only matter laid to the defenders' charge is what took place at the meeting of vestry. The account of their pro- ceedings as given by the pursuer himself is contained in the minutes, and from these minutes it appears that the only thing they did was to sit as judges on evidence laid before them, and pronounce sentence in conformity with that evidence. III. "The pursuer's argument was rested on the assumption that the defenders' plea is one of absolute protection, in the same sense as that granted to members of Parliament and Supreme Judges. The defenders do not now maintain any such plea, nor do they now put forward any such pretensions. What they contend for is simply, that, being unquestionably in a privileged situation, to the extent of requiring a case of malice to be alleged and made out against them, the pursuer has failed in stating competent grounds to support the conclusions of his action. They do not pretend to absolute immunity in regard to all their proceedings, no matter of what character they might be, merely because they were done in meetings of vestry. They claim no jurisdiction, in the proper sense of the term ; what they do insist upon is the right, which they acquired by the pursuer's own voluntary act in becoming a 2C 386 LEADING ECCLESIASTICAL CASES member of their body, of exercising that authority which the deed of constitution confers upon them. The defenders directed the rest of their minute of debate to the point that the action was irrelevant, because, although they were charged with doing certain things maliciously, yet that the facts themselves did not shew malice ; and it was for the Court now, on the authority of Mone V. Anderson,' to dismiss the action as irrelevant. The argument on this point need not be reported, as no judgment was given on it — the word " maliciously " having, with consent of both parties, been ulti- mately left out of the issues, and others substituted in their room. When the case came on for judgment, the then senior counsel for the defenders (the Lord-Advocate) stated that he left the case in the hands of the Court, on the argument in the pleadings, — which he adopted. The Rev. Dr. West adopted the arguments of the vestry, and pleaded privilege in the same way as they had done. LoED Mackenzie. — Supposing that the defenders could be regarded as having acted judicially, I conceive the general rule to be, that Judges, civil or ecclesiastical, if they, in the exercise of their function, commit a wrong, maliciously and without probable cause, must be liable in damages. And I am aware of no exception applicable to this case. I think, there- fore, the pursuer must get his issue. The Lord President (Boyle) and Lord Fcllerton concurred. Thereafter it was proposed by the defenders to insert in the issues, — Whether the acts complained of were done by them " in violation of their duty " as vestrymen, and minister of the congregation ; and that, if this were inserted, the word " maliciously " need not be so. This proposal was accepted by the pursuer ; and The Court accordingly approved of the issues in these terms : — "1. It being admitted that, at a meeting of the vestry established by the constitution of St. Paul's Episcopal Chapel, Carrubber's Close, Edinburgh, held on or about the 26th day of March 1847, the minutes set forth in the schedule hereto annexed were recorded, and were signed by each of the defenders, William Begbie, Thomas Houlden, John Boyd, and the now deceased Alexander Lockhart Wilson, and that the said minutes are of and concerning the pursuer ; — " Whether the said minutes, or any part thereof, falsely and calum- niously, and in violation of the duty of the defenders, and of the said Alexander Lockhart Wilson, as vestrymen of the said chapel, represent the pursuer as guilty of wilful falsehood, and unworthy, from his conduct to take part in the business and councils of God's house — to the loss, injury, and damage of the pursuer ? 1 25tli February 1842, Session Eeports, vol. iv. p. 786. DECIDED IN THE COUET OF SESSION. 387 " 2. IVbether the defenders, William Begbie, Thomas Houlden, John Boyd, and the late Alexander Lockhart Wilson, or any of them, in violation of their duty foresaid, authorised or sanctioned the publica- tion, from the pulpit of the said Episcopal Chapel, of a pretended resolu- tion or sentence, in the following terms : — ' That the pursuer had been expelled from the office of a vestryman of said chapel as being unworthy to take any part in the business and councils of God's house,' or in terms of similar import and eifect 1 — and whether the same was of and concerning the pursuer, and did falsely and calumniously, and in viola- tion of the defenders' and of the said Alexander Lockhart Wilson's duty as aforesaid, represent him to have been expelled from the office of vestryman of said chapel on the charges preferred and sub- stantiated against him, and as being unworthy to take any part in the business or the councils of God's house ; meaning thereby to hold out and represent the pursuer as having been guilty of wilful falsehood, and unfit, from his conduct, to hold said office of vestrjrman? and whether, in violation of duty foresaid, said pretended sentence or resolu- tion was published accordingly from the pulpit of the said chapel on Sunday the 28th March 1847, to the loss, injury, and damage of the pursuer 1 " 3. Whether the defender, the said George Montgomery West, in violation of his duty as the clergyman temporarily discharging the duties of clergyman of said chapel, read from the pulpit of the said chapel at the several diets for public worship, on Sunday the 28th day of March 1847, or any of the said diets, a pretended sentence or resolu- tion of the vestry of the said chapel, in the following terms : — ' That the pursuer had been expelled from the office of a vestryman of said chapel as being unworthy to take any part in the business and councils of God's house ;' or in terms of similar import and effect 1 and whether the same was of and concerning the pursuer, and did falsely and calum- niously,. and in violation of duty foresaid, represent him to have been expelled from the office of vestryman of said chapel, on the charges preferred and substantiated against him, and as being unworthy to take any part in the business or councils of God's house ; meaning thereby to hold out and represent the pursuer as having been guilty of wilful falsehood, and unfit, from his conduct, to hold the said office of vestry- man — ^to the loss, injury, and damage of the pursuer 'i " 4. Whether the defenders, John Stevenson and the late Alexander Lockhart, Wilson, did falsely and calumniously insert and publish or cause to be inserted and published, an advertisement in the newspaper called the Edinburgh Evening Gourant, on or about the 1st April 1847, in the following terms : — ' Diocese of Edinburgh. — At a meeting of the vestry of Saint Paul's Episcopal Chapel, Carrubber's Close, held 26th ultimo, Mr. William Edwards, residing at Wood's lodgings. Prospect Buildings, Abbey, was expelled the office of a vestryman of said chapel on charges preferred and substantiated against him, and as being unworthy of taking any part in the business and councils of God's house,' or in words of similar import and effect ; meaning thereby to hold out and represent the pursuer as having been guilty of wilful falsehood, as 388 LEADING ECCLESIASTICAL GASES being, from his conduct unfit to hold the office of a vestryman in the said chapel— to the loss, injury, and damage of the pursuer 'i - " 5. Whether the defenders, John Stevenson and the late Alexander Lockhart Wilson, or either of them, on Sunday the 28th day of March 1847, did violently assault the pursuer, at or within Saint Paul's Episco- pal Chapel, Oarrubber's Close, Edinburgh, to the damage and injury of the pursuer? "Damages laid at £1000." C. & D. Stewart, S.S.C— Pollock & Stewart, 'W.S.— Agents. December 8, 1865. The Reverend George H. Forbes, Pursuer. — Lord.-Adv. Mmcreiff-~ Gordon — Hope. The Eight Eeverend Robert Eden, D.D., and Others, Defenders. — Sol.-Gen. Young — Shand. Second Division. — Lord Barcaple. Church — Reparation — Title to sue — Reduction. — A clergyman of the Scotch Episcopal Church brought an action against the members of a General Synod of that Church, concluding — (1) for reduction of certain canons enacted by the Synod, which altered the canons in force when the pursuer was ordained ; (2) for declarator that it was ultra vires of the Synod to enact these, and that he was entitled to celebrate divine service according to the former canons ; and (3) for damages for injury done to him through his bishop refusing to license a curate engaged by the pursuer who would not subscribe the new canons. Averments which Held not relevant or sufficient in law to support" the conclusions of the libel. Observed, per Lord Justice- Clerk (1) That if a society, whether for secular or religious purposes, is bound together by articles of constitution, the general rule of law is, that the majority may be restrained, on the application of the minority, from carrying into effect any fundamental alteration of such articles. (2) That there may be cases of breach of contract where the party complaining has no such interest to enforce the contract as can be recog- nised by a court of law. (3) That there may be a distinction, arising from difference of interest, between the title of a lay and of a clerical member of a dissenting communion, to complain of a violation of the fundamental articles of the association. Observed, per Lord Cowan, that to entitle a party to call upon the Court to adjudicate upon the acts of a voluntary church court in matters ecclesias- tical, he must set forth some civil wrong, justifying a demand for redress, or patrimonial injury, entitling him to claim damages. The present action was raised in 1864 by the Reverend George Hay Forbes, minister of the Scotch Episcopal congregation at Burntisland. The summons was directed against " the Right Reverend Robert Eden, one of the bishops, and primus, of the religious denomination known as the Episcopal Church in Scotland," and others, bishops, deans, and other clergymen, " all as members of a General Synod of the said Church DECIDED IN THE COURT OF SESSION. 389 holden at Edinburgh on the 8tb day of July 1862, and continued by successive adjournments and prorogations until the 13th day of February 1863, and as individuals." The summons concluded — (1) For reduction of a code of canons adopted at said synod, in so far " as it contains the enactments com- prised in article 20, section i ; article 28, section 20 ; article 29 ; article 30, sections 2 and 4 ; and article 38, section 3 thereof" (2) For declarator " that it was and is ultra vires of the defenders, or of any General Synods of the said Church, to alter, amend, or abrogate any of the canons contained in the code which was ' revised, amended, and enacted by an ecclesiastical synod holden for that purpose at Edinburgh on the 29th day of August, and continued by adjournment till the 6th of September, inclusive, in the year of our Lord 1838,' or to make new canons for the said Church, except in so far as such alterations, amendments, abrogations, and new canons may be in conformity with the constitution which was recognised and the practice which was acknowledged in the said Church at the time of the pursuer's ordination as a minister thereof, and set forth in the code of canons of 1838, which was then subscribed by him." (3) For declarator " that the pursuer is entitled to celebrate divine worship, and all the other services, and to administer the sacraments and all other rites of the said church, in conformity with the said canons enacted in the year 1838, and is entitled to the free exercise and enjoy- ment of all the privileges conferred on him under said canons, or under the deed of institution in his favour after-mentioned." (4) That the defenders "should be decerned and ordained, conjunctly and severally, or severally and respectively, as may be determined in the course of the process, to make payment to the pursuer of the sum of £120, being the amount paid by him, or for which he is liable in payment, to the Rev. John Wilkinson, B.A., for his services as curate to the said pursuer, in terms of an agreement between them to that effect, of which services the pursuer was deprived through the wrongous refusal of a license to the said Rev. John Wilkinson, as here- inafter set forth j and also of the sum of £200, in name of compen- sation, damages, and solatium, for the loss and injury which he has sustained patrimonially, and in his health and feelings, by and through the wrongous refusal of license hereinafter set forth." The articles sought to be reduced were — Article 20, section 4. — " Provided always, that under special circumstances a bishop shall not be precluded from opening a mission in any part of his diocese, when to him it shall seem desirable." Article 28, section 20. — " The General Synod shall have power to alter, amend, and abrogate the canons in force, and to enact new canons, provided that such alterations, amend- ments, abrogations, and new canons be in conformity with the recognised constitution of this Church ; and such enactments shall oblige as well the minority in the said Synod as all members of the Church." Article 29. — "Whereas in the preface to the first reformed Prayer-book of the Church of England (1549), it was provided, in order to remove the inconveniences arising from ' diversity ' in the celebration of divine 390 LEADING ECCLESIASTICAL CASES worship, that henceforth all the whole realm shall have but one use ; and whereas in consequence of the communion and intercourse that exist between the United Church of England and Ireland, and the Episcopal Church in Scotland, it is expedient to have as little diversity as may be between the practice of this Church and that of the sister churches of the United Kingdom in the use of divine offices; and whereas the English Book of Common Prayer is, and has been for many years past, in general use amongst us, not only for the performance of morning and evening service, but for the administration of the sacraments and other rites and ceremonies of the churches, it is hereby enacted that the said Book of Common Prayer, as now authorised according to the service-book, is, and shall be held to be, the service-book of this Church ' for all the purposes to which it is applicable ; and that no clergymen shall be at liberty to depart from it in public prayer and administration of the sacraments, or in the performances of other divine offices, except so far as the circumstances of this Church require, and as specified in the canons of this Church." Article 30, sections 2 and 4-. — (2) " The Office of the Book of Common Prayer shall be used in all new congregations, unless the majority of the applicants mentioned in canon xx., sec. 1, shall declare to the bishop, at the time of sending their resolutions to him, that they desire the use of the Scotch Office in the new congrega- tion, in which case the bishop shall sanction such use. The use of the said office shall be continued in such congregation, unless the clergyman and a majority of the communicants shall concur in disusing it." (4) " At all consecrations, ordinations, and synods, the Communion Office of the Book of Common Prayer shall be used." Article 38, section 3. — "At the burial of the dead the rubrical directions of the Book of Common Prayer shall be complied with so far as the circumstances of the Church will permit." The substantial parts of the pursuer's averments were to the fol- lowing effect : — The pursuer was ordained a clergyman of the Episcopal Church in Scotland. (Cond. 2) " Prior to his ordination, he, in accord- ance with the laws and practice of the said Church, was called upon to subscribe, and did subscribe — (1) 'The book of articles of religion agreed upon by the archbishops and bishops, of both provinces of the realm of England and the whole clergy thereof, in the convocation holden at London in the year of our Lord 1562 ;', and (2) ' The canons of the Episcopal Church in Scotland, drawn up' and enacted by the bishops and clergy of that Church, in a syaod holden for that purpose at Edinburgh in the year of our Lord 1838.' The ordination and subscription above set forth constituted the agreement or contract which regulated the rights and privileges of the pursuer as a clergyman of the said Church." In 1849 the pursuer was instituted to the pastoral charge of the Episcopal congregation in Burntisland, which charge he held at the date of the action. Under the deed of institution he held his position for life, and could only be removed for an offence against the canons of the Scotch Episcopal Church. He had, at his own expense, built a clergy- man's house, school, and chapel, on ground purchased by himself. From DECIDED IN THE COUET OF SESSION. 391 his office as minister at Burntisland he derived an income of about £40 per annum. He was a member of the Scotch Episcopal Church Society, which is confined to the clergy of the Scotch Episcopal Church, and gives to the widows of members of it annuities of £30, and to their children the sum of £300. " If the pursuer were derived of his status of a clergyman of the Episcopal Church in Scotland, the foresaid pro- vision for his wife, in the event of her surviving him, would be lost ; and as he is in feeble health, he could only make a similar provision by ordinary insurance at great annual expense." (Cond. 6) "By the 33d article of the canons of 1838, subscribed by the pursuer as aforesaid, it is enacted that a ' General Synod of the Church, duly and regularly summoned, has the undoubted power to alter, amend, and abrogate the canons in force, and to make new canons ; and the said alterations, amendments, abrogations, and new canons, being in conformity with the recognised constitution and acknowledged practice of this Church, shall not only oblige the min- ority in the said synod, but all the absent members of the Church.' " (Cond. 7) " Various attempts have recently been made to introduce changes in the hitherto recognised doctrines, constitution, and practice of the Episcopal Church in Scotland. Many of the alterations proposed are at variance with the doctrines and 'recognised constitution and acknowledged practice ' required to be held and observed by the clergy- men of the said Church at the time when the pursuer was ordained and instituted to his present charge, and on the faith of which he sought and obtained admission into the ministry of the said Church. In parti- cular, at the meetings of the General Synod of the said Church, which commenced at Edinburgh on the 8th day of July 1862, it was resolved to adopt and issue a new code of canons. . . . The defenders were the members of the said General Synod, and the said new code of canons was adopted, enacted, and sanctioned by them. Before the new canons were finally adopted, the pursuer's agents, on 5th February 1863, wrote to Mr. H. J. EoUo, W.S., as clerk to the Upper Chamber of the General Synod, stating that they were instructed by the pursuer ' to take all necessary steps to protect his interests, which are afiected by three special alterations which have been proposed in the canons of the Scotch Episcopal Church. These are (1) The proposed enlargement of the powers of General Synods by the omission of the words " acknowledged practice," by which, inter alia, they have hitherto been limited. (2) The adoption of the whole of the English Prayer-book as a doctrinal formulary of the Scotch Episcopal Church, whereas hitherto the clergy of that body have only been obliged to approve certain parts of it. (3) The displacement of the Scotch Communion Office from the position which it has hitherto occupied, by the English Prayer-book being made the exclusive authorised service-book of the Episcopal Church in Scotland.' " (Cond. 8) "The 21st article of the code of canons of 1838 enacts as follows: — 'Whereas it is acknowledged by the 20th and 34th of the Thirty-nine Articles, that " not only the Church in general, but every particular or national Church, hath authority to ordain, change, and 392 LEADING ECCLESIASTICAL CASES abolisli ceremonies or rights of the Church, ordained only ^7 man's authority, so that all things be done to edifying," the Episcopal Church in Scotland, availing herself of this inherent right, hath long adopted and very generally used a form for the celebration of the holy com- munion, known by the name of the Scotch Communion Ofiace, which form hath been justly considered, and is hereby considered, as the authorised service of the Episcopal Church in the administration of that sacrament. And as, in order to promote an .union among all those who profess to be of the Episcopal persuasion in Scotland, permission was formerly granted by the bishops to retain the use of the English Ofi&ce in all congregations where the said ofi&ce had been previously in use, the same permission is now ratified and confirmed. And it is also enacted, that in the use of either the Scotch or English Office, no amalgamation, alteration, or interpolation whatever shall take place, nor shall any substitution of the one for the other be admitted, unless it be approved by the bishop. From respect, however, for the autho- rity which originally sanctioned the Scotch liturgy, and for other suffi- cient reasons, it is hereby enacted that the Scotch Communion Office continue to be held of primary authority in this Church, and that it shall be used not only in all consecrations of bishops, but also at the opening of all general synods.'" (Cond. 10) "The said 'Scotch Com- munion Office ' was compiled for the use of the Episcopal Church in Scotland in or about the year 1637. Since that time the 'Scotch Communion Office ' has been frequently published separately, as well as in editions of the Scotch Prayer-book, and other publications of the said office. In the separate form fifty-four or more different editions of this office have been published, in all of which it is styled, 'The Communion Office ' of said Church ; and no other document except itself has ever borne this title, down to the passing of the canons now com- plained of." (Cond. 11) "About the close of the eighteenth century several congregations of adherents of the Church of England were established in Scotland ; and a movement was made to effect a union between them and the Episcopal Church in Scotland. After sundry negotiations the union of the two parties was effected, and certain articles of union were drawn up by the Scotch bishops, which were signed by the English clergy, who were admitted to the Scotch Epis- . copal Church at the said union." (Cond. 12) "Throughout all the foresaid negotiations, the 'Scotch Communion Office' was uniformly recognised as the exclusive communion ritual of the Church, nor was any change in this respect proposed, except that permission was sought and obtained by the English clergy to retain in their own congregations the use of the service of the Church of England. Number three of the articles of union contains the following provision : — ' Every such clergy- man shall be at liberty to use in his own congregation the liturgy of the Church of England, as well in the administration of the Lord's Supper as in all the other offices of the Church.'" (Cond. 13) "The union of the two bodies having been in a great measure effected, a General Synod was held in the year 1811, to adopt a code of canons for the government of the Episcopal Church in Scotland in its altered DECIDED IN THE COUET OF SESSION. 393 condition. The said synod fully recognised the ' Scotch Communion Office ' as the authoritative office of the Church, and enacted a canon substantially the same as that quoted in article 8 (21 of the code of 1838), which canon was re-enacted by the successive General Synods of 1827, 1828, and 1838." (Cond. 14) " Prior to and after the union above mentioned the said ' Scotch Communion Office ' was regarded, both by the original adherents of the Episcopal Church in Scotland and by those who joined it, as teaching a definite line of doctrine upon certain points, and as being with respect to these the standard of doctrine of the said Church. Accordingly, to prevent the junction with the English congregations from operating against the authority of that service, the bishops were required before ordination to sign the following declaration : — ' When promoted to the episcopate I will co-operate with my colleagues in supporting a steady adherence to the truths and doctrines by which our Church has been so happily dis- tinguished, and particularly to the doctrine of the holy eucharist, as laid down in our excellent Communion Office.' After the canons were enacted, as above-mentioned, at the Synod of 1811, this declaration was no longer required from bishops, as the position and primary authority of the ' Scotch Communion Office ' were thought to be fully and permanently secured." (Cond. 15) "When the pursuer was admitted into holy orders in the said Church, and was instituted to his present charge, he understood that the said ' Scotch Communion Office ' was, and must continue to be, the primary authority in the said Church in the holy communion, and as setting forth the doctrine of the said Church upon the nature of that ordinance. By the new code of canons the terms of communion of the Episcopal Church in Scotland are substantially altered ; and if it is to be upheld and enforced as the code of the said Church, the pursuer (as well as others who agree with him) wUl be liable to suspension from or deprivation of his pastoral charge, or to degradation, and will thus incur forfeiture of the civil rights now possessed by him as minister of the said congregation at Burntisland, and as a clergyman of the said Episcopal Church in Scotland." , With reference to the 29th article of the canons of 1863 the pur- suer averred : — (Cond. 18) " Several of the services in the said Book of Common Prayer contain passages or expressions which are opposed to the pursuer's conscientious belief, and which he is under the necessity of refusing to read in the discharge of his duty, which he will be obliged to do if the new canons be enforced." He then specified certain passages in the orders for the burial of the dead, the ministration of baptism, and the visitation of the sick, to which he objected. (Cond. 20) "The deed of institution in favour of the pursuer contains, inter alia, the following prohibition : — ' And we do hereby strictly pro- hibit and discharge every other clergyman from performing any sacred office in his said chapel or place of worship, or from interfering, directly or indirectly, in the pastoral care of said new formed congregation, with- out the consent and approbation of the said Eeverend George Forbes.' By the 39th article of the canons of 1838, it is enacted, — 'Should any 394 LEADING ECCLESIASTICAL CASES number of Episcopalians, living in any town or village of Scotland where there is an Episcopal chapel already in existence, entertain a desire to be formed into a congregation in communion with this Church, it is hereby decreed that the following mode of procedure be adopted : — 1st, A meeting of the Joma ^« Episcopalians, or of persons desirous of becoming such, who wish to form such congregation, shall be held, agreeably to a public advertisement, at which meeting, when duly constituted, a resolution expressive of their intentions, together with the reasons that render it necessary that such new congregation should be formed, shall be formally drawn up and signed by all the applicants, to be transmitted to the bishop of the diocese within which the town or village is situated ; 2dly, The bishop, upon receiving such notification, shall, after consulting the presbyters of his diocese, communicate to the applicants his determination. Should he follow the advice given him by a majority of his presbyters, his determination shall be final ; but if he shall decide against the majority, the applicants, or any party or parties who may consider themselves aggrieved by the decision, may appeal to the college of bishops, and shall have the right to appear before them by a delegate to state the grounds of their appeal.' The power given to the bishop, by the 20th article, section 4, of the new code of canons, of opening a mission in any part of his diocese, is contrary to the rules of the said Church as prevailing at the date of the pursuer's institution, and subversive of the privileges conferred by the deed of institution in his favour." With reference to article 28, section 30, he averred (Cond. 21) "By the new code of canons the General Synod is no longer held bound, in altering canons, or enacting new ones, to conform to the 'acknowledged practice ' of the said Church." " The pursuer, being in ill health, recently made an engagement with the Rev. John Wilkinson to act as his curate, but the defender, the Right Rev. Charles Wordsworth, under whose ecclesiastical superintend- ence the complainer's charge is placed, on the special ground of the enactment of the new code of canons, refused to license the said, or any curate, unless the said curate should subscribe ^jiid conform to the new code of canons. By section 2 of the 18th article of said new canons, it is enacted, that ' no person shall be permitted to ofiEiciate in sacred things, permanently or occasionally, in any congregation of this Church, except he shall have been Episcopally and canonically ordained, and shall also conform to the doctrine and discipline of this Church ;' and by section 4- it is enacted, that ' no clergyman shall officiate in any congregation in this Church for more than one month without a written license under the hand of the bishop of the diocese.'" (Cond. 24) " The pursuer, considering that the said Right Rev. Charles Wordsworth had been premature iu requiring the signature to a code of canons which had not been duly promulgated .... appealed against his decision to the Episcopal Synod (a different body from the General Synod). The appeal was heard at Perth on 14th July 1863, when the synod dis- missed the same, without allowing the pursuer to be fully heard in sup- port thereof, and without giving any reasons for their decision." (Cond. DECIDED IN THE COURT OF SESSION. 395 25) " By the refusal of the bishop and the Episcopal Synod to allow him a curate, except upon conditions which he cannot and is not bound to submit to, the pursuer has had devolved upon him work which, in his present state of health, he is unfitted to perform without detri- ment to his health, and without great mental anxiety, and he has suffered greatly thereby in his health and feelings, and has been pre- vented from attending fully to the interests of his congregation and charge, from which part of his income is drawn, to his loss, injury, and damage. Further, he has, by the terms of his engagement, been obliged to pay, or is under obligation to pay, to the said Rev. John Wilkinson, £120, as remuneration for services of which he has been deprived by the said refusal of license." (Cond. 28) " By article 44, section 2, of said new canons, it is, mter alia, enacted, that ' an accusation inferring .... any offence against these canons may be made by any male communicant, twenty-one years of age and upwards.' By section 1 of the 45th article of the new code, it is enacted, that ' the sentences competent to be pronounced by a bishop or the Episcopal Synod for offences under these canons are — (1) admonition; (2) suspension; (3) deprivation of a pastoral charge; (4) degradation.' The pursuer is thus liable to be informed against for non-conformance to the new canons, and thereafter to be subjected to trial and sentence, and thereby affected in his civU rights as above explained." He pleaded : (1 ) The new code of canons, in so far as regards article 20, section 4, etc., having been enacted in gross violation of the contract or constitution of the said Episcopal Church in Scotland, and being ultra vires of the defenders, the pursuer is entitled to have them reduced, or at least to have them reduced in so far as they are or can be founded on as a bar to his obtaining reparation and damages as concluded for. (2) By virtue of the contract entered into by the said Episcopal Church in Scotland with the pursuer, when he subscribed the said canons enacted in 1838, and was ordained as a minister of said Church, and by virtue of the said deed of institution in his favour, he is entitled to decree, in terms of the declaratory conclusions of the summons. The defenders admitted that " at and long previous to the date of the canons of 1838, the office called the Scotch Communion Office existed, and had been printed and published, and that there is no question about the identity of the office referred to in said canons, and in the canons of 1863, as the Scotch Communion Office." They averred : — (5) In so adopting, enacting, and sanctioning the canons of 1863, the said General Synod, and the defenders as members thereof, acted within their proper province, and did not exceed their powers. The canons, including those now complained of, were each and all of them such as they were lawfully entitled to adopt, enact, and sanction, and they did not thereby do the pursuer any wrong, and, in particular, they did not thereby do him any civil wrong. (11) The defenders desire to explain, that while having regard to the subjects and terms of the canons which are complained of, they respectfully maintain that 396 . LEADING ECCLESIASTICAL CASES the canons are not liable to be reduced by this Court. They do not seek to defend themselves from any legal liability which they may have incurred to the pursuer as members of the synod by which those canons were adopted, enacted, and sanctioned, by pleading that the same have not been reduced, and that they undertake not to state any such defence. The defenders pleaded generally, that the pursuer's statements were not sufficient in law to support the conclusions of the action ; and also stated the following pleas : — r(2) Eeduction of the canons called for and complained of is unnecessary to entitle the pursuer to maintain any remedy or legal liability competent to him against the defenders, as members of the General Synod by which the canons complained of were enacted, and the action ought therefore to be dismissed or the defenders assoilzied in so far as regards the reductive conclusions. (6) As members of the General Synod by which the canons complained of were adopted, enacted, and sanctioned, the defenders incurred no legal liability to the pursuer, and they are entitled to be assoilzied. The Lord Ordinary pronounced this interlocutor: — "Finds that the grounds of reduction libelled, and the pursuer's averments on record, are not relevant or sufficient in law to support the conclusions of the action ; therefore assoilzies the defenders from the whole conclusions of the libel, and decerns : Finds the pursuer liable in expenses ; allows," etc' 1 " Note. — This case differs materially from others of a somewhat similar kind that have been before the Court. The action is brought by the pursuer as an ordained clergyman of ' the religious denomination known as the Episcopal Church in Scotland,' and minister of the Scotch Episcopal congregation, Burntisland. It is directed against the bishops and a large body of the clergy of that Church, as members of a General Synod of the Church held in 1862 and 1863, and as indi- viduals. The leading conclusion of the action is for reduction of certain portions of a code of canons of the Episcopal Church in Scotland, enacted in 1863 by the General Synod before-mentioned. There are also conclusions for declarator — first, that it was ultra vires of the General Synod to alter, amend, or abrogate any of the canons contained in a previous code enacted in 1838, or to make new canons, except in conformity with the constitution which was recognised, and the practice which was acknowledged, at the time of the pursuer's ordination, and set forth in the code of canons of 1838, which was then subscribed by him ; and, secondly, ' that the pursuer is entitled to celebrate divine worship, and all the other services, and to administer the sacraments and all other rites of the said Church,' in con- formity with the canons of 1838, and is entitled to the free exercise and enjoyment of all the privileges conferred on him imder these canons, or under the deed of institution in his favour. The summons finally contains pecuniary conclusions against the defenders, conjunctly and severally, or severally and I'cspectively. There is first the sum of £120 concluded for, as the amount paid by the pursuer to the Rev. Mr. WilkLnson for his services as curate, of which the pursuer was deprived through the wrongous refusal of a license to Mr. Wilkinson. There is finally the sum of £200 concluded for generally as damages and solatium for the loss and injury which the pursuer has sustained patrimonially, and in his health and feelings, by the wrongous refusal to license his curate. This refusal is alleged, and indeed admitted, to have been caused by the curate declining to sign the canons. It thus appears that the whole matters as to which the pursuer seeks a remedy, either consist in or arise out of the enactment of the canons of 1863, in so far as they alter the canons of 1838 in a way not in conformity with the constitution and DECIDED IN THE COURT OF SESSION. 397 The pursuer reclaimed, and argued — There were three questions to be considered, — First, Did the alterations made by the new canons practice of the Church. Both sets of canons are referred to by the pursuer, and made part of his case. " The peculiarity of the case is, that the pursuer does not merely ask redress against an invasion of his rights, which he alleges to have taken place in conse- quence of the enactment of these canons, and under their authority, but he com- plains of the canons, and seeks to have them set aside by the Court, as being in themselves, and by their mere enactment, a wrong done to him. In short, he maintains that he acquired such a jus qucesitum in the canons of 1838, which were in existence when he was ordained, and in the constitution of the Church as fixed by them, that he is entitled, as a matter of civil right, to prevent them being altered by the Synod, except in so far as the alterations may be consistent with the recog- nised constitution and acknowledged practice of the Church. It may be that the reductive and declaratory conclusions ai'e also intended to prepare the way for the conclusions for damages. But, as the Lord Ordinary reads the record, and as he understood the argument for the pursuer, the more important complaint made against'the canons, for which redress is sought in this action, is, that they are in themselves, and irrespective of anything that may have followed upon them, a wrong done to the pursuer of such a kind that he is entitled to be protected against it by a court of law. ' ' It may be more convenient to consider, in the first place, whether the pursuer has stated a relevant case of injury inferring damages against the defenders by the wrongous refusal to license his curate. It appears to the Lord Ordinary that, on principles altogether apart from the ecclesiastical origin of the cause, this part of the pvireuer's case is clearly irrelevant. The license was refused by the pursuer's bishop, who was alone entitled to confer it. The pursuer appealed against the sentence of the bishop to the Episcopal Synod — an entirely different body from the General Synod, which enacted the canons. He says that the Synod dismissed the appeal without allowing him to be fully heard, and without giving their reasons (revised cond. 23 and 24). He has not, however, sought redress against the judg- ment of the Synod, and he has not taken any proceedings against them. Neither does he proceed against his bishop as liable for the wrong' done by him individually in refusing the license. If he had taken that course, the question might have arisen whether the bishop had a good defence for his refusal in the existing canons of the Church. But the bishop is not dealt with in this matter differently from the other defenders, who are all called as liable in consequence of their having taken part, as members of the General Synod, in enacting the canons of 1863. This, which is not said to be in itself a wrong, inferring liability for damages to the pursuer, can- not make them liable to him for a wrong done by his bishop, of which they had no cognisance. If direct injuiy, infening damages, shall result from the wrongful act of such a body, the members who took part in it may be liable to the injured party, but they cannot be liable for a wrong done at another time by some other party over whom they have no control, and of whose wrongful act they have no know- ledge, merely because he acted in conformity with the wrongful proceeding previ- ously adopted by them. If that proceeding was as illegal as in the present case the pursuer assumes it to have been, the bishop was bound to disregard it ; or if he acted in conformity with it, he made himself responsible for the consequences. Neither he nor the pursuer can shift that liability from him to the members of the General Synod. "This part of the case appears to the Lord Ordinary to be also irrelevant, in respect that the pursuer does not set forth that the bishop was under any obligation to license his curate. This cannot be assumed, in the absence of any statement on the subject. It is no doubt said that the bishop's refusal proceeded on the grounds 398 LEADING ECCLESIASTICAL CASES affect the doctrine of the Church 1 Second, Had the Synod power to make these alterations? Third, Had these alterations affected the pursuer in such a manner as to entitle him to the remedy he sought ? that the canons of 1863, art. 18, sec. 2, enact that no person shall be allowed to ofSciate unless he shall conform to the doctrine and discipline of the Church, and that the curate, entertaining the same ohjection as the pursuer to portions of the new canons, refused to sign them. But if the bishop was not under an absolute obligation to give the license unless he could shew good cause to the contrary, it does not appear that he can be liable in damages "merely in consequence of having acted on this special ground. But while the Lord Ordinary thinks that this is an additional element of irrelevancy, his judgment on the point is rested en the ground first explained. ' ' If the case is irrelevant as regards the conclusions for damages, the existence of these conclusions cannot aid the relevancy of the case stated by the pursuer for redress against the new canons by reduction and declarator, which must therefore be considered upon its own merits. "The defenders do not raise any question either as to the jurisdiction of the Court or the competency of the action. They maintain that, upon his own shew- ing, the pursuer has not a good case in law for any of the remedies which he seeks. On the other hand, the pursuer does not maintain that he can ask the Court to intei'fere with, or even enquire into, the canons of his Church, except for the pur- pose of giving him redress in a matter of civil right. The peculiarity of his case, apart from the claim for damages, is, that the civil right, which he alleges to have been illegally invaded, is his right to insist that the canons of 1838 shall not be altered except in conformity with the recognised constitution and acknowledged practice of the Church ; and that the wrong which he seeks to have redressed is the adoption and continued existence upon the statute-book of the Church of the canons which were enacted in 1863. This is a, case very different, as it appears to the Lord Ordinary, from any of the same class which have been hitherto insisted in. "The objections stated by the pursuer to the recent canons maj' be generally classed under the following heads : — (1) The displacement of the Scotch Commu- nion OfSce from the position of superior authority which it held under the former canons, and the provision that the Communion Office of the Book of Common Prayer shall be used at all consecrations, examinations, and synods ; (2) The provi- sion that the Book of Common Prayer shall be the service-book of the Church for all the purposes to which it is applicable ; and "in connection with this the provision that at the burial Of the dead the rubrical directions of the Book of Common Prayer shall be complied with so far as the circumstances of the Church will pei-mit ; (3) A proviso that in special circumstances a bishop shall not be pre- cluded from opening a mission in any part of his diocese when to him it may seem desirable ; and (4) The power given to a General Synod to alter, amend, and abrogate canons and to enact new canons in conformity with the 'recognised constitution' of the Church, in place of its ' recognised constitution and acknowledged practice,' as required by the corresponding canons of 1838. "Of these objections the two first were chiefly dwelt upon in the argument, viz. those which relate to the Scotch Communion Office and the Book of Common Prayer. Both of these symbolical books were previously in use and authoritatively sanctioned by the Church, so that its presbyters cannot be heard in that character to maintain that either of them contains doctrine which is contrary to the tenets of the Church. Whatever doctrinal differences may exist between them must be ■n-ithin a latitude which the Church avowedly allowed itself and its members when the pursuer was ordained. The pm-suer, however, says that he individually has conscientious objections to doctrines which he believes to be contained in the com- DECIDED IN THE COURT OF SESSION. -399 I. By displacing the Scotch Communion Office from being of primary- authority, and substituting the English Office in its stead, a material nmnion service and other parts of the Book of Common Prayer, especially the ■baptismal and hnrial services. And though, having hitherto used the Scotch Com- munion Oiiioe in his own congregation, its use there is preserved to him by the new canons, he complains that it is now contrary to the former canons to he used at consecrations and synods, which, by the law of the Church, he is required to attend. " It does not appear to the Lord Ordinary that by the slight change of phrase- ology in the 28th canon, any substantial alteration is made upon the powers of General Synods to enact or alter canons. It is not at all clear that the power to establish missions is; now conferred for the 'first time upon hishops ; and, at all events, it is not a radical change, suhversive of either the tenets or constitution of the Church. On a comparison of the regulations of the canons of 1838 and 1863, in regard to the Book of Common Prayer, the Lord Ordinary has been unable to discover any change, unless it be the enactment in express words that it shall be held to be the service-book of the Church for all the purposes to which it is appli- cable. But on am examination of the regulations regarding its use in the canons of 1838, that seems to have been truly its position at the time of the pursuer's ordination. The enactments for its use were, so far as the Lord Ordinary can see, substantially the same formerly that they are now. No other- service-book was known in the Church, with the partial exception of the Scotch Office for the com- munion, and the enactment objected to seems to be merely the distinct recognition of this fact. "The Lord Ordinary does not think it necessary to follow the pursuer into his detail of doctrinal differences between the Scotch Communion Office and the Communion Sei-vice of the Book of Common Prayer, of which his counsel gave an exposition equally able and judicious. The Lord Ordinary does not doubt that to many well-informed and conscientious persons, proceeding upon recognised prin- ciples of theological criticism, the two services will appear to give utterance to opposite views on points which have not been thought unimportant in the doctrine of the euoharist. He is convinced that this is conscientiously the opinion and feel- ing of the pursuer himself. If this were a question as to the misappropriation of property originally destined to the use of a church having the Scotch Office as the sole exponent of its tenets on this matter, by the substitution of the service in the Book of Common Prayer, it might be necessary for the Court to enquire, however perplexing and inexpedient such an enquiry would be, as to the existence and theological importance of the alleged differences between the two. The Lord Ordinary is glad to believe that no such investigation is necessary in the present case. For not only is there no question of property or civil right involved, but both services were distinctly accredited by the Church when the pursuer was ordained. The pursuer complains, indeed, that he personally is aggrieved by the distinct recognition now given for the first time to the Book of Common Prayer as the service-book of the Church ; and, more particularly, he complains of the English Communion Office at consecrations and synods where he is required to attend. But the value of his individual objections to these regulations must depend upon his own personal feelings and opinions. At all events it cannot be tested by an enquiry into the tenets of the Church, which had previously accredited both the Prayer-book and the Scotch Office. "Upon a consideration of the pursuer's averments, and of the two codes of canons which he calls upon the Court to compare, the Lord Ordinary is of opinion that the enactment of those portions of the canons of 1863, which are objected to, was not such an excess of the admitted powers of the General Synod, or such a change upon the constitution and tenets of the Church embodied in the canons 400 LEADING ECCLESIASTICAL CASES alteration in the doctrine of the Church had been made. For example, the consecration of the elements was in the two services ascribed to of 1838, as to give a foundation for the action if it were relevant in other respects. But while he holds the pursuer's case to he thus radically insufficient, there are other grounds, more obvious on the face of the record, on which he is of opinion that it is not relevant. " The pursuer admits that he can only seek redress for a civil wrong ; and the wrong of which he is here complaining is the enactment and suhsistence of the altered canons, which he asks leave to set aside by the Court. He does not dispute that the General Synod was competent, by the laws of the Church, to alter and enact canons. Indeed, he refers to canon 33 of 1838, which enacts that a General Synod ' has the undoubted power to alter, amend, and abrogate the canons in force, and to make new canons, ' which, ' being in conformity with the recognised constitu- tion and acknowledged practice' of the Church, shall bind all its members. The canons therefore which the Court is asked to treat as being in themselves, by their mere enactment, a civil wrong done to the pursuer, and on that ground to set aside, are internal regulations, enacted by the proper authority, in regard solely to the ecclesiastical and spiritual affairs of the Church itself. The Lord Ordinary does not know of any similar demand having hitherto been made for the intervention of a court of law in matters touching the faith and discipline of a religious denomination. There is not here any violation of statutory duties and rights, as in the Auchterarder case. Neither is there the alleged perversion of property from its destined use, as in Craigdallie v. Aikman, 1 Dow, p. 1, and 2 Bligh, p. 529 ; Smith v. Galbraith, June 6, 1839, F. C. ; and Attorney-General v. Pearson, 7 Simon, 290 ; and the case of Lady Henley's Charity, ib. p. 309. Nor is there the allegation of direct patri- monial injury done by an ecclesiastical body acting illegally, as in the case of M'Millan v. The Free Church, 23 D. 1314, or of injury by libellous matter contained in an ecclesiastical sentence, as in Dunbar v. Skinner, 11 D. 945. In all these cases, it was not only alleged that the ecclesiastical body or its office-bearers had violated the law or constitution of the Church, but a direct and substantive patrimonial injury was alleged to have been inflicted on the party seeking redress. " It appears to the Lord Ordinary that the present action proceeds upon a falla- cious view of principles which have been recognised in these cases, and of dicta which had reference only to the questions then under consideration. When, in defence against an action on account of something done by an ecclesiastical body, it was pleaded that the matter, being ecclesiastical, was solely for the determination of that body itself, it was effectually replied that that was an assertion of exclusive power of jurisdiction, which could only rest upon contract, and that the contract was to be found, if anywhere, in the constitution and laws of the Church. In the discussion which thus arose, the constitution and laws of the Church came to be referred to as ' the contract ' upon which the question turned, and most correctly ; for by reference to them the question of jurisdiction, or of the legality of the pro- ceeding complained of, was to be determined. The fallacy of the present action appears to the Lord Ordinary to be, that the pursuer treats the canons of his Church as if they were primarily and by their main intention a contract between the mem- bers of the Church. Taking this view, he complains that the terms of his contract have been changed without his authority, and to his injury. Analogies are brought forward drawn from other associations, formed for entirely different purposes, and having nothing equivalent either to the authority which is vested in Synods and other ecclesiastical bodies, or to the regulations for the doctrine and internal govern- ment of a Church. And the Court is asked to deal with the canons of a Church as they are from time to time enacted by the proper authority, as if they were nothing else than attempted modifications of the contract between the members of aa associa- tion for ordinary civil purposes. This is, as the Lord Ordinary thinks, altogether a DECIDED IN THE COURT OF SESSION. 401 diflerent causes. By the English it was ascribed to the clergyman, by, the Scotch to the operation of the Holy Spirit. The discussions which fallacious view, and quite unwarranted by the authorities referred to. The canons of a Church are not enacted for the purpose of constituting a contract, but to estab- lish and regulate its doctrine and discipline. The contract, in the sense in which that expression is important in these discussions, may or may not be embodied in the canons. They are only to be looked at as giving evidence, more or less complete, in regard to it. For that purpose the canons of the pursuer's Church of 1838 are as available now as ever they were. If the pursuer can shew that he has suffered patri- monial injury by the violation of any civil right which he possessed under them, the enactment of altered canons in 1863 will not deprive him of his legal remedy. But it is new, and, as the Lord Ordinary thinks, contrary to all the principles which have been recognised in this class of cases, that the Court should be asked to inter- fere with the canons of a Church, and that not for the purpose of protecting a party from injury done to him under their authority, but merely to relieve him from what he considers to be the civil wrong done to him by their enactment and subsistence. " The pursuer complains that the new canons make bis position more unfavour- able and insecure. Objecting to them, and therefore refusing to sign, and on some points to obey them, he is liable, he says, to censure and deposition, and also to lose the benefit of an insurance on his life effected with the Scotch Episcopal Friendly Society. None of these evils have yet come upon him. "When they do, or if they are threatened, he will be in a position properly to try whether he is protected from them by the constitution of the Church, or, as he prefers to call it, the contract embodied in the canons of 1838. "By the declaratory conclusions the Court is called upon to deal with the canons of 1863, by declaring, first, that it was ultra vires of the General Synod to enact them ; and secondly, that the pursuer is entitled to perform his functions as a, clergyman in conformity with the canons of 1838. This is just asking the Court to regulate the internal affairs of this Church in regard to the matters as to which the pursuer alleges that the two sets of canons differ — the more important of which are alleged by him to relate directly to questions of doctrine. Into matters of this kind courts of law have always refused to enquire, except for the purpose of vindicating a civil right, or protecting against a civil wrong. Even in that case the Courts have never given the remedy by altering or setting aside proceedings taken by the ecclesiastical authorities within their proper province, and, least of all, by making or unmaking regulations for the doctrine or discipline of the Church. The pursuer, indeed, does not ask the Court to pronounce as to the theological soundness of the doctrines in question, but only as to whether they are not now brought in as an innovation. But Civil Courts do not undertake to protect churches, or individual members of ehui'ches, from the influx of new doctrines. They only interfere to prevent the uses of property being perverted through its being retained by a majority who only keep the name, while they have abandoned the principles of the Church to which it was devoted. The proposal to give such a remedy as is here asked, against the canons regarding the powers of the bishops to establish missions, and the power of General Synods to make and alter canons, may appear less startling, because they are not strictly matters of theological doctrine, though they are not less polemical for that reason. But the Court will as little interfere to impose upon a dissenting body immutability of church government, as immutability of doctrine ; while in either case it will protect property from being diverted, or persons from being injured, by the consequence of changes on doctrine or constitution. " The last of the declaratory conclusions brings out very strongly what is, in the view of the Lord Ordinary, the leading fallacy on which the action is founded. The pursuer does not allege that he has been interfered with in the exercise of his functions. On the other hand, the defenders do not, and cannot maintain that he 2d 402 LEADING ECCLESIASTICAL CASES had taken place before the alteration was made shewed that hoth those who desired and those who opposed the change considered it a very- important and vital alteration.' Previous to 1863, any one tried for holding heretical doctrines on the subject of the eucharist was tried according to the Scotch office, now he would be tried by the English. This was the case in the trial of Mr. Cheyne at Aberdeen. Another material alteration was in the power given to a bishop to open missions in any part of his diocese. The exercise of this power would be a serious interference with the exclusive privileges conferred upon the defender by the deed of institution in his favour. II. The power of the Synod to make alterations in the canons was limited by the code of 1838 to such changes as were "in conformity with the recognised constitution and acknowledged practice of the Church." The alterations made were not in conformity with the acknowledged practice of the Church. The Synod were bound by the very words of the canon. They had no inherent power to alter. That power was possessed alone by the whole Church. III. The pursuer's civil rights have been interfered with. He has set forth sufficient injury in articles 23-25 of his condescendence, relating to the refusal of his bishop to license a curate. The bishop here acted in conformity with the new canons, and if an action of damages had been brought against him he could have successfully pleaded the new canons as his justification. But apart from his petitory conclusions the pursuer has set forth a sufficient interest. In judging of this question the Scotch Episcopal Church must be looked at as an association, not as a Church. The acts complained of and sought to be reduced were acts which changed the constitution of that association. There was no question here as to spiritual acts. Any party to a legal contract may bring an action to set aside a funda- mental breach of that contract. It is no answer to the action that the pursuer has not yet been interfered with.' Under the new canons he may be at any moment, and he is entitled to ask remedy from a threatened as well as from an inflicted injury. The very change of the contract is an invasion of the pursuer's rights. Others may not think that to be a member of this association is an advantage. He thinks can be prevented exercising all these functions in any manner lie prefers, and free from their control, if he so pleases. He has only to renounce his connection with them. But the conclusion of the action is, that it shall be declared that he is entitled to celebrate divine worship and all the other services, and to administer the sacraments and all other rites of the said Church, in conformity with the canons of 1838. That is to say, the Court is asked, not to vindicate the pursuer's entire freedom in the performance of his sacred office, which is admittedly indelible, but to regulate the manner in which the rites of the particular church in question shall be dispensed by one of its ministers in the exercise of authority derived from the Church itself. Nothing could better illustrate what appears to the Lord Ordinary to be the fundamental objection to this action." ^ Address to the Members of the Episcopal Church, by a Layman (Lord Medwyn), 1846, p. 6 ; Present State of our Canon Law Considered, by Dean Eamsay ; Charge by Dr. Ewing, Bishop of Argyll ; Skinner's Annals, p. 483-502. ' M'lntosh*. Rose, 1839, 2 D. 253. DECIDED IN THE COURT OF SESSION. 403 so, and he has therefore become a member, acquiring thereby a certain status, and choosing the objects to be gained as a member, as the objects to which he shall devote himself through life. The becoming a member gives him a right to complain of a breach of the regulations. He does not complain of the particular action of the new rules, he com- plains of the new rules themselves. The case turns upon whether there was or was not a contract between the parties. The canons of 1838 express some of the conditions of that contract. The first canons were adjusted in 1811.' By them the Scotch Communion OflBce was recognised as the authorised service. There is no doubt raised by the parties as to the identity of what was so recognised. In 1838 a new code of canons was enacted, not inconsistent with the previous canons, and the new code was fixed as part of the contract between the various members of the Church, — a contract which it was expressly enacted should not be altered by a General Synod, except in conformity with the recognised constitution and acknowledged practice of the Church. That contract had been altered by the change in the authority given to the Scotch Communion Office, and by the introduction of the English Prayer Book as the rule in all matters to which it is applicable. The defenders argued — There was no question as to the juris- diction of the Court raised. The jurisdiction was conceded, if the pur- suer had shewn a case of civil wrong. But he had not stated a relevant case. At any rate the action is premature, no injury having as yet been sustained or threatened. There is no contract which has been vio- lated ; and, lastly, if there was a contract it has not been violated. At advising, — Lord Justice-Clerk (Inglis). — The pursuer, who describes himself as "a clergyman of the religious denomination known as the Episcopal Church in Scotland," and "minister of the Scottish Episcopal congregation at Burntisland," brings this action against a large number of persons who are also clergymen belonging to the same communion, and several of them holding the office of bishop in that communion, all as members of a general synod of the body held at Edinburgh in the end of 1862 and beginning of 1863. His complaint against them is, that in making certain alterations .on the code of canons they have violated the constitution of the religious body to which both parties belong, and have thus committed a breach of contract. He alleges further, that he cannot conscientiously obey or conform to the new and altered code, and, as by that altered code itself he. is taken bound to do so under heavy penalties, including degradation from the office, functions, and character of a clergyman, he has a material interest, personal and patrimonial, to challenge the legality of the alterations com- plained of, and to seek the protection of the law against their enforcement. ^ Skinner's Annals, p. 505 ; Grub, Eocles. Hist., vol. iv. p. 131. 404 LEADING ECCLESIASTICAL CASES To the general relevancy of such an action it does not appear to me that any good objection can he stated. If a society, whether for secular or religious purposes, is hound together by articles of constitution, and an attempt is made to alter any funda- mental article of the constitution, the general rule of law undoubtedly is, that the majority may be restrained, on the application of the minority, from carrying the alteration into effect. The rule may be illustrated by an example which comes readily to hand. ' This religious body effected an union with various congregations of English Episcopalians on the footing of taking the Thirty-nine Articles of the Church of England as their formulary and standard of faith and doctrine. They might nevertheless now propose to abrogate that standard, and revert to the Confession of Faith originally prepared by Knox and the other early Eeformers, and sanctioned by Parliament in 1567, which was their only standard or formulary (if they had any except the Apostles' creed), during the eighteenth century. The whole body would have power to make the change, if they were unanimous (though they might thereby individually lose some statutory privileges). But a majority, I apprehend, would have no power to do so against the wishes of a minority, however small. Again, if the synod, whose acts are here complained of, had passed an ordinance prohibiting the use of all set forms of prayer, the result would be the same. If aU. the members of the communion agreed or acquiesced, the change would be perfectly lawful ; but any one having sufficient interest might complain of it as a breach of contract, because in this communion it seems to be a fundamental article of the constitution, since 1811 at least, that set forms of prayer shall be used in public worship, and in the administration of the sacraments. There may no doubt be breaches of contract where the party com- plaining has no such interest to enforce the contract as can be recognised by a court of law. Thus an association may be formed for mere sport or amusement, which every member is at liberty to leave as soon as he feels inclined, and which he can leave without any pecuniary loss. In such a case the law wiU not interfere. And though the subject-matter of this contract be as far removed as possible from sport or amusement, still, if the complaint here were at the instance of a mere lay member of the Scottish Episcopal communion, his interest and title to defend the con- stitution of the society might be seriously questioned ; for he would be met with the ready answer, that as soon as the practice of the religious body became disagreeable to him he was at liberty to bring his connection with it to an end. , It may seem that the distinction between a lay and a clerical member of such a voluntary association is scarcely so substantial as to justify DECIDED IN THE COUET OF SESSION. 405 giving to the one and refusing to the other a legal title to complain of any violation of the fundamental articles of association. But there are some weighty considerations which support such a distinction. The possession of a particular status, meaning hy that term the capacity to perform certain functions or to hold certain offices, is a thing which the law recognises as a patrimonial interest ; and no one can be deprived of its possession by the unauthorised or illegal act of another without having a legal remedy. The position of a minister or clergyman in a dissenting communion differs, no doubt, from that of a minister of the Established Church, and from that of a member of any of the law or medical corporations, inas- much as he has no legal or recognised status. But it is beyond question, that where a religious society embraces a numerous and wealthy section of the community, the position of a minister of religion in that society is an object for the attainment of which men are specially educated at considerable cost, and for the sake of which they throw away, it may be, other and more profitable prospects. "When, therefore, one has, by com- pfetent authority, been ordained a minister in such a communion, I hesitate to come to the conclusion that he has not obtained something which is of appreciable value, even according to the vulgar standard of money. If, therefore, the pursuer can shew that he became a minister in the Episcopal communion under one law, and now finds himself, by the pro- ceedings of the defenders, under a new law, the enactment of which is a breach of the fundamental constitution of the society, whicVhe cannot conscientiously obey, and which if he disobey he is liable to be deprived of his position as a minister, and of the character impressed on him by his ordination, I am not prepared at once to say that he is without legal remedy. That he has not yet been challenged for his disobedience to the new law, and has suffered no actual injury, seems to me of little import- ance. If he can satisfy the Court that injury is surely impending, he is as much entitled to the exercise of preventive justice to stop the infliction of a wrong, as he is to reparation when the wrong has been done and the injury suffered. Holding these views as to the general nature of the case before us, I hesitate to adopt the course of reasoning in the note of the Lord Ordinary, and to give judgment against the pursuer solely or mainly on the ground that he has no sufficient title and interest to sue, apart from a full con- sideration of the grounds of his complaint on its merits. I think we can scarcely do justice between the parties in this case unless we carefully consider what are the terms of the contract alleged to subsist between - them, and what are the alleged breaches of that contract. When the pursuer became a member, or at least when he became a 406 LEADING ECCLESIASTICAL CASES minister, of the Episcopal communion, the canons in force were those prepared and enacted in 1838. But he alleges that by the new code, enacted in 1863, material alterations have been made. By the 21st canon of the code of 1838, the "Scotch Communion Office " is declared to be " the authorised service of that church in the administration of that sacrament;" and while permission is given to retain the use of the English Office where it was previously in use, it is also enacted, that the Scotch Office " continue to be held of primary authority in this Church, and that it shall be used not only in all conse- crations of bishops, but also at the opening of all General Synods." The pursuer complains that, by the 29th canon of 1863, the Book of Common Prayer of the Church of England is declared to be " the service- book of this Church for aU the purposes to which it is applicable ; and that no clergyman shall be at liberty to depart from it in public prayer and administration of the sacraments, or in the performance of other divine offices, except so far as the circumstances of this Church require, and as specified in the canons of the Church." The 30th canon of 1863 further permits to those congregations who use the Scotch Communion Office to continue its use. But the Com- munion Office in the Book of Common Prayer of the Church of England is to be used in aU new congregations, unless on special application the bishop shall permit the use of the Scotch Office ; and the office in the Common Prayer is to be used at aU consecrations, ordinations, and synods. The pursuer, who had always used the Scotch Office in the congrega- tion of which he is minister, maintains that that office was the authorised doctrinal formulary to which appeal was to be made in all questions of eucharistic doctrine and practice, and that the effect of the canons of 1863 is not only to degrade the Scotch Communion Office from its place of authority, and to substitute in its stead the English Office, but to subject the pursuer to the necessity of taking part in the service of the holy communion, particularly at Diocesan Synods, at which he is bound to attend, according to the forms of the English Office. This is the first head of his allegations of breach of contract, and that which was dealt with in argument as by far the most important part of his case. Is there, then, before this Court a relevant allegation of breach of contract 'i In reading and construing the canon, 21st of the code of 1838, which is said to have been illegally altered, it is of importance to have reference to the time of its original preparation, and the circumstances which led J/O it, DECIDED IN THE COURT OF SESSION. 407 The statute passed in 1792 conferred on Episcopalian ministers in Scotland various immunities and advantages, upon this, among other conditions, that they should suhscribe the Thirty-nine Articles of the Church of England. In the year 1804, "a convocation of all the bishops and clergy of the Scotch Episcopal Church was held at Laurencekirk, at which it was resolved by the Scotch clergy to sign the Thirty-nine Articles." The old Scottish Episcopalians, who during the greater part of the eighteenth century had been supporters of the House of Stuart, and had most of them been in close alliance with the English non-jurors, seem to have thought that the time was now come when they might, without compromising any of their old principles, invite the Episcopalians of the English Church, of whom there were several congregations in Scotland, to form a union with them. The union was finally accomplished in the year 1811, and it was at this time, and under these circumstances, that the canon which forms No. 21 of the code of 1838 was first made a law of the Scottish Episcopal Church. What, then, is the precise import and effect of this canon as an article of constitution, or a condition of the association then formed, and still confessedly existing 1 To enable the Court to answer this question with safety and satisfac- tion, it is further quite necessary that we should understand the meaning of the terms made use of. The parties did not seem very willing at first to enKghten us on this matter. But I think we have it now admitted that by " the authority," which originally sanctioned the Scotch liturgy, is meant the proclamation of the Privy Council of Scotland, dated the 20th December 1636, enjoining the use of the service-book which had been compiled for the use of the national Church of Scotland by com- mand of King Charles I. ; that by the " Scotch liturgy " is meant either that service-book, or the Communion Office contained in that book ; that hy the " Scotch Communion Office " is meant the office for the celebration of the communion which was in use among the Scottish Episcopalians in 1811. So far the parties are agreed, but they are widely at issue regarding the meaning of the words "primary authority,'' the pursuer representing that these words import that the Scotch Office is of primary and over- ruling authority in all questions of doctrine and practice regarding the eucharist, the defenders, on the other hand, maintaining that these words either have no meaning at all or that they mean only that the major part of the Scottish Episcopalians for the time prefer the use of the Scotch Office in the celebration of the communion. To any one acquainted with the ecclesiastical history of Scotland in the seventeenth century, the appeal to the authority of Charles I., em- bodied in the proclamation of the Privy Council of 1636, must seem very strange. The bishops of the Scottish Episcopal communion in 1811, and 408 LEADING ECCLESIASTICAL CASES since that time, represent themselves as the legitimate successors of those bishops who were estahlished and appointed hy James VL in. the early- part of that century, .and who, down to the year 1638, were bishops of the national Church of Scotland. But that national Church had a rooted aversion to any service-book which prescribed the precise form of words in which public worship should be conducted, and still more to any service-book compiled in or borrowed from England ; and this feeling was not confined to any particular party in the national Church. The parties in the Church at that time were divided on questions of ecclesiastical government almost exclusively. The controversy arising out of the Five Articles of Perth can hardly w;ith any propriety be said to be a contro- versy regarding doctrine. The observances which they enjoined had not been generally used or rigidly enforced, and the excitement which they at first created had almost died away before the attempt was made to introduce a service-book. The doctrine of the Church was in all respects substantially the same from the time when it was settled at the establish- ment of the Reformation, in terms of the Confession of Faith, ratified by King James the Sixth's first parliament in 1567. This confession con- tinued to be the only special standard of faith and doctrine of the national Church of Scotland till the Eevolution, with the exception of the short period between 1647 and the Restoration, during which the "Westminster standards prevailed. In the almost entire absence of proper doctrinal controversy, the form of church government was no doubt a constant subject of discussion, and of violent irritation, not between two parties in the Church primarily, but between the king and his subjects. The restoration of bishops by King James VI. was a purely political movement on his part, and was not subversive of the form of church government then existing, for the kirk-sessions, presbyteries, and synods co-existed and worked together in the government of the Church with the archbishops and bishops, from the restoration of the Episcopal order by King James, till its abolition in 1638 by the Estates of Parliament in the time of King Charles. But in 1636 and 1637 the controversy respecting the comparative merits of Episcopal and Presbyterian government did not occupy the minds of most men, as it had in former times done ; and the violent storm which was raised by the attempt of King Charles, by his own authority alone, to introduce the service-book, though it led in its results to the abolition of Episcopacy, and the triumph of the Presbyterian party, was at first the protest of the whole nation in its religious and ecclesiastical aspect, or, in other words, of the national Church, against an exercise of the prerogative which all alike, whether attached to Presbytery or Episcopacy, regarded and denounced as Erastian, and subversive of the true liberties of a DECIDED IN THE COURT OF SESSION. 409 national Church. Nor did the service-hook of King Charles ever recover from the obloquy thus attaching to it. From the Eestoration to the Revolu- tion, the Church of Scotland remained as completely without a liturgy as it had been in the end of the previous century. Indeed, the only book of any legitimate authority in the Church at that time which contains any directions for public worship, was the Book of Common Order, founded on the order of Geneva, which had been adopted at the Reformation, and which had never been formally deprived of authority, nor had grown out of general use. It was not until after the Revolution, and somewhere in the beginning of the eighteenth century, that a feeling and practice favourable to set forms of public prayer and worship became prevalent among the Scottish Episcopalians, then a small and persecuted sect. But even then it was not the service-book of Charles that was generally adopted, but the Common-Prayer Book of the Church of England. The high profession of respect " for the authority which originally- sanctioned the Scotch liturgy," is therefore not very intelligible in the canon of 1811, if by the liturgy is meant the whole service-book, which the Church of Scotland would not, and never did accept or use. On the other hand, if the term " liturgy " is to be understood in its stricter and more limited sense, as equivalent to " Communion Office," the statement becomes more, intelligible, for the Scottish Episcopalians, when they left the Established Church at the Revolution, and became an independent body of dissenters, did adopt the Communion Office of King Charles's service- book, and a reference to the fact that it is contained iu the service-book of King Charles may be made "in this canon only for the purpose of shewing that it was a service originally intended and compiled for the use of the Church of Scotland. But in whichever sense the reference to King Charles's proclamation is to be understood, it remains to be seen whether it explains the enact- ment which follows, that the Scotch Communion Office shall be of primary authority. Is it the office, as it appears in King Charles's service- book, that is to be appealed to as a doctrinal standard on the subject of the eucharist ? or is it the Scotch Communion Office as it was in use in 1811 ? and if the latter, then what is the authorised form of this office in 1811 ? The great importance of these questions in the present case will be at once apparent by attending to the differences which exist in the different editions of this office. The pursuer informs us that fifty-four or more editions of this office have been published, all bearing the same name. I have not examined the whole of these ; but in those which I have had an opportunity of seeing, there is such a want of uniformity that I am not able to say, and I am not informed by anything on record, what is the offi<5e meant by the pursuer when he contends that it shall continue to be 410 LEADING ECCLESIASTICAL CASES of primary authority. If, indeed, the discrepancies were immaterial, they might not go so far to invalidate the pursuer's case, though even then the want of any distinctly authorised and standard copy or edition would be very embarrassing. But it will clearly appear that the discrepancies are not small nor immaterial. In the service-book of 1637 the prayer of consecration differs from that of the Communion Office in the Common-Prayer Book of the Church of England, by the introduction, after the first complete sentence, of these words : — " Hear us, oh merciful Father, we most humbly beseech thee, and of thy almighty goodnesse vouchsafe to blesse and sanctifie with thy Word and Holy Spirit these thy gifts and creatures of bread and wine, that they may bee unto us the body and blood of thy most dearly beloved Son, so that we receiving them," etc. Another marked difference is a rubrical direction in the service-book that " immediately after " the prayer of consecration " shall be said this memorial or prayer of oblation." The first portion of this "oblation" is as follows : — "Wherefore, Lord and heavenly father, according. to the institution of thy dearly beloved Son, our Saviour, J^sus Christ, we, thy humble servants, do celebrate and make here before thy divine majesty, with these thy holy gifts, the memorial which thy Son hath wUled us to make, having in remembrance his blessed passion, mighty resurrec- tion, and glorious ascension, rendering unto thee most hearty thanks for the innumerable benefits procured unto us by the same." The remainder of the memorial or prayer of oblation consists of the words of one of the prayers or collects appointed in the English service to be said after the people have all communicated. The first edition of what has since been called the Scotch Communion Office, published in 1723 and 1724 for the use of those who had been led, by their preference for the Episcopal form of church government, and the importance they attached to Episcopal ordination, to leave the national Church at and after the Eevolution, was apparently an exact and faithful copy of the Communion Office in the service-book of 1637. But this was not of long continuance. The first change appears in the edition of 1735, in "the oblation," where, after the words "celebrate and make" " with these thy holy gifts," the following words are introduced : — " Which we now offer unto thee." In 1 755 these additional words are retained. But another change was made. The words introduced in the prayer of consecration in the book of 1637, praying that the elements " may be unto us the body and blood," etc., are omitted, but they are introduced in the prayer of oblation. In one of the editions of 1764 these words are restored to their, old place in the prayer of consecration, as in 1637, and in the prayer of obla- DECIDED IN THE COUET OF SESSION. 411 tion, the words "■which we now offer unto thee'' are omitted. But in another edition of the same year, the words " which we now offer to thee'' are retained. The prayer in which they occur is called on the margin " the oblation." What immediately follows is, for the first time, on the margin called " the invocation," and prays " to bless and sanctify with thy "Word and Holy Spirit these thy gifts and creatures of bread and wine, that they may become the body and blood of thy most dearly beloved Son." In 1796 another change is introduced, and the prayer is, that the elements " may become the spiritual body and blood," etc. In 1800 the word "spiritual" is dropped out, and the form is the same as in 1764. In 1801 the word "spiritual" is restored, and the sentence in which it occurs is thus explained in a foot-note : — " That is to say, in spirit, and power, or in virtue and efiBcacy, and so as to convey to devout communicants all the spiritual blessings purchased by Christ's death and passion." In 1804 the edition of 1764 was reprinted verbatim. But in 1814 the word "spiritual" is once more restored, but without the foot-note. From this time forward the form of 1764 seems to have been gene- rally followed. Now it seems to me to require no argument to shew that the differences thus existing among the different editions of this office are such as may by many conscientious persons be considered of the most serious importance, as expressive or suggestive of certain doctrines, or as involving certain practices. It is quite unnecessary to dwell on this matter. For the question always recurs with increasing force, which of these numerous editions is it that the parties to the contract of 1811 agreed to hold as of primary authority 1 According to which of these numerous editions is it that the pursuer contends that the authorities of the Church are bound to test the soundness of his doctrine on eucharistic grace, the real presence, and the nature of the commemorative sacrifice 1 To this question no answer has been, or, indeed, under the record before us, can be given ; and the result is that this so-called fundamental article of the constitution, this essential condition of the contract, cannot be enforced, because there is no certainty what is the formulary or office to which appeal is to be made as of primary authority. The gravamen of the pursuer's complaint is, that he is compelled to receive the Church of England Communion Office in place of the Scotch Office, and he has shewn wherein they differ in their language. But it is unfortunately just at those very parts of the service in which the Scotch Office differs from the English, that the Scotch Office presents 412 LEADING ECCLESIASTICAL CASES those variances in its different editions, and thus constantly, up to 1811, differs from itself. A doctrinal formulary which is constantly or fre- quently shifting in its expression, can hardly he of any, much less of primary authority, and no real injury can he done to the interests or to the conscience of any one hy substituting in its place a more distinct and unvarying standard, unless, indeed, it could be alleged that the new- standard expresses or suggests something unsound in doctrine or involves something objectionable in practice. But the pursuer has carefully abstained from making any such -allegation against the Communion Office contained in the English Book of Common Prayer. I am therefore of opinion that there is no relevant allegation of breach of contract, in so far as regards the matter of the Communion Office — (1) Because I think, notwithstanding the apparently strong language of the 21st canon, it is impossible to hold the parties to the contract of 1811 to have intended to make appeal in matter of doctrine to a formulary or form of service, as to the terms of which they were not themselves agreed, and that the meaning, of the canon must be taken to be (as contended for by .the defenders), that the Scotch Office was the office most extensively recognised and used for the time, and not that it was of primary authority -in questions of doctrine. (2) Because, even if the intention of the parties had been to appeal in matters of doctrine to such a vague and uncertain standard, it would be impossible to enforce this as a condition of a contract or as a fundamental article in the constitution of a religious association. What remains of the case is easily disposed of. The pursuer complains that the new canons of 1863 make a change in the limitation of the powers of the General Synods, the limitation in the canons of 1838 being that their powers to alter or abrogate canons shall be " in conformity with the recognised constitution and acknowledged practice of this Church," while in the canons of 1863, the words "and acknowledged practice '' are dropped out. The pursuer has not explained what he holds to be the precise meaning of the omitted words ; and it is difficult, if they be taken in their natural meaning, to give them any effect consistently with a General Synod having any power to abrogate a canon, unless it has already fallen into desuetude, or to alter or amend a canon unless it has already been virtually altered or amended by the practice of the Church. Alteration and abrogation of canons to any other effect must necessarily be an interference with the acknowledged practice of the Church prevailing up to the time when the change is made. The words, therefore, are either useless, or the pursuer must attach to them a meaning which is unreasonable, and contrary to the principles of sound construction. DECIDED IN THE COURT OF SESSION. 413 But further, in the case of so ambiguous a phrase, it is plainly premature to determine whether that omission enlarges the power of a General Synod, until it be seen what shall be the effect of the change on the practical exercise of the powers of a General Synod. A court of law is in use to deal with such questions only in the concrete, not in the abstract. The pursuer, lastly, complains that the services in the English Prayer- book appointed for baptism, visitation of the sick, and burial of the dead, contain passages which he has a conscientious objection to read. But his averments on this subject are devoid of relevancy, because he does not state, and plainly could not state consistently with fact, that the canons of 1863 introduce any material change as regards these services. The Scotch Episcopal Church were accustomed, long before the ordination of the pursuer, to use the services of the English Prayer-book, having no forms of their own for the performances of any of these services. It is altogether out of the question to say that a canon which enjoins nothing more than greater uniformity in the use of a service which has been already for a long time a recognised service of the Church, constitutes a breach of contract, and a violation of the constitution of the religious society. It is unnecessary for me to say anything in detail of the conclusions of the summons. The sole grounds of action being, for the reasons which I have stated, irrelevant, according to my opinion, I am necessarily led to the same conclusion with the Lord Ordinary, and am for adhering to his interlocutor. Lord Cowan. — The first enquiry to which I have directed my atten- tion, in advising the lengthened and able argument addressed to us in this case, regards the extent to which the Court is called on to deal judicially with the important questions that have been argued. And the more consideration L have given to the case, I have become the. more satisfied with the manner in which it has been disposed of by the Lord Ordinary, and with the grounds of judgment on which his Lordship has proceeded, as these are explained in the note to his interlocutor. Both parties concur in the statement that no point affecting the jurisdiction of the Court to entertain this action has been raised ; and I am willing so to view the case ; but whUe making this admission, the defenders state in their record, that "having regard to the subjects and terms of the canons which are complained o:^ they respectfully maintain that the canons are not liable to be reduced by this Court." This state- ment appears to me to suggest very important matter for consideration, which requires to be disposed of at the outset. For, on the same grounds Hi LEADING ECCLESIASTICAL CASES that the reductive conclusions are thus ohjected to, the competency of a judgment on the declaratory conclusions of the summons, in the general terms in which they are expressed, may be challenged. These conclusions are twofold ; (1) that it was and is ultra vires of the synod of this Church, to alter, amend, or abrogate any of the canons contained in the codes of 1838, or to make new canons, except in so far as in conformity with the constitution and acknowledged practice of the Church at the time of the pursuer's ordination as a minister, and (2) that the pursuer is entitled to celebrate divine worship and to administer sacraments in conformity with the canons of 1838, and is entitled to the free exercise and enjoy- ment of all the privileges conferred on him by these canons, and under the deed instituting him to be minister of the Episcopal congregation of Burntisland. These are very wide conclusions, and, as I apprehend, could be entertained in this Court for judgment only if the canons them- selves, to which the pursuer objects, could be competently reduced. Eor assuming the code of 1863 to be left the standing law of the Church, it is impossible to see how on any good ground the Court could be called on to declare either that the alterations it makes on the prior code of 1838 are ultra vires and inoperative, or that the pursuer is entitled to continue a minister of the Scotch Episcopal Church on the footing of the law of the Church being the abrogated code of 1838. And it is material, in this aspect of the nature of the action, to observe that all the canons or parts of canons proposed to be set aside, or to be declared void, and the pursuer to be free of subjection to them, relate either to matters alleged to modify or change the doctrines of the Church, or to matters touching its internal arrangement and discipline. Thus art. 20, sect. 4, merely declares that a bishop shall not be precluded in special circumstances from opening a mission in any part of his diocese ; art. 28, sect. 20, declares that General Synods shall have power to alter existing canons, and to enact new canons in conformity with the recognised consti- tution of the Church, — the words "and recognised practice," which occurred in the code of 1838, being left out ; and canon 29 prescribes the nse of the English Book of Common Prayer as the service-book of this Church, for aU the purposes to which it is applicable ; and that no clergy- man depart from it " except so far as the circumstances of this Church require, and as specified in the canons of this Church." All these regula- tions plainly have relation to the internal affairs of the Church and the conduct and guidance of its ecclesiastical ofiSce-bearers. The other canons to which objection is taken are of the same character, but are of a nature which, it is alleged, by the pursuer touch the doctrinal views of the Church on the subject of which they treat,-i-viz. canon 30, relating to the nse of the Communion Office, whether the English or the Scotch, at the celebra- DECIDED IN THE COURT OF SESSION. 415 tion of the Sacrament ; and canon 28, sect. 3, relating to the use of the English service at the burial of the dead. I cannot but regard it as an entire novelty to ask courts of law to determine whether the ruling judicatory of a voluntary church acted within its powers in matters so purely and exclusively relating to the government of the body as a church, its doctrine, and discipline. It surely could not be pretended that any one of the laity of the church, connected with it only as in the enjoyment of its ordinances, could thus evoke the jurisdiction of the Civil Court. When the ecclesiastical govern- ing body has recognised changes either in doctrinal matters, or in the rights and ceremonies of the church, dissentient laymen may leave its communion. Their remedy cannot be to bring the resolutions of the church judicatory into a court of law, as a court of review. Some civil wrong justifying a demand for redress, or some patrimonial injury entitling the party to claim damages, must be alleged and instructed ere the Civil Court entertain and adjudicate in such cases. This is the principle which pervades the whole of the cases of this class. And it leads directly to the solution of what I have ventured to state is the primary enquiry under this record. Has the pursuer set forth that, by and through the synodi- cal acts of which he complains, he has suffered civil wrong or patrimonial injury, to support and justify his demand on the Civil Court to investigate and adjudicate upon those acts of this spiritual court in matters ecclesi- astical and connected with the government of their church, as in them- selves right or wrong, or as within or beyond the powers of the Synod 1 The summons at the pursuer's instance is directed against the defenders, the bishops, deans, and ministers of the Scottish Episcopal Church, called as members of the " General Synod of the said Church," holden at Edin- burgh in 1862 and 1863, and as individuals ; and subjoined to the reductive and declaratory conclusions there are in the summons petitory conclusions for payment (1) of the sum of £120, the remuneration he alleges to be due for the services of a curate, unjustly refused license by his bishop, and of whose services the pursuer has in consequence been deprived ; and (2) of £200 of damages, and in solatium of the pursuer's loss patrimonially, and in his health and feelings, " by and through this wrongous refusal of license." As regards these petitory conclusions, I will not add a word to the reasoning of the Lord Ordinary on pages 2 and 3 of the note to his inter- locutor, which appears to me to establish beyond controversy the irrele- vancy of this part of the pursuer's- case ; and laying aside the petitory demand in the summons, the case must be judged of as if the only con- clusions before the Court were reductive and declaratory. The pursuer must shew that his position or rights as a clergyman of this Church have 416 LEADING ECCLESIASTICAL CASES been affected or violated in such manner and to sucli extent as to justify his demand for redress, in the way he seeks to have found and declared, as for a civil wrong. Certain it is that no actual patrimonial loss or injury has yet visited the pursuer in his person or estate, by or through the change in the canons of 1838, introduced in the subsisting code of 1863. No such loss or injury is alleged in any part of the record. The pursuer, however, says that he may be exposed by his non-com- pliance with the canons of 1863 to civil injury and wrong, inasmuch as, should he disobey the canons, he may be dealt with by his bishop- in the manner stated in article 28 of the condescendence under canon 44, sect. 2. Now, having regard to the fact of the pursuer's induction to his office being under the code of 1838, a preliminary question, requiring to be disposed of by his ecclesiastical superiors, might be stated to any such prosecution, viz., that a presbyter so situated could not be so dealt with when he had given no consent to the changes effected by the new code. Apart from this, however, it is difficult to imagine how such a state of things could ever exist as would support an action like this at the pur- suer's instance. The general power given to bishops within their several dioceses to establish a mission in any locality therein cannot touch the position of the pursuer as instituted to the pastoral charge of a particular congregation. Nor, by possibility, can the change in stating the power of General Synods to alter or enact canons, in conformity with the recognised constitution of this Church, without insertion of the words " and recog- nised practice," affect the interests of the pursuer, until at least it shall be acted on in such a way as may be alleged to be disconform to the existing practice of the Church. As little can the recognition of the " English Book of Common Prayer " as the service-book of the Church, or the sanction given to the English Communion Office therein contained, be cause of personal injury, when the one canon is qualified by the excep- tion, " so far as the circumstances of the Church require, and as specified in the canons," and when the other canon is specially qualified by the declaration that the practice of using the Scotch Communion Office in all congregations where it was used at the date of the code 1863, shall remain unaffected by the new regulation. And finally, the canon as to the burial service is so expressed and qualified as to make it very difficult to see how this canon can ever be productive of civil wrong to the pursuer or any other incumbent of the Church. Thus it is plain that there is as little room for alleging imminent danger of loss and injury from these objected to changes in the canons, as there is for the averment of loss and injury actually suffered. And, moreover, such threatened wrong is, by the pursuer's own shewing, DECIDED IN THE COURT OF SESSION. 417 dependent (1) on his disobedience of the canons, and (2) on action being taken against him for such disobedience by his bishop. But neither the one nor the other of these contingent events can be predicated to be so pro- bable as to justify and support legal proceedings not otherwise maintainable. There being thus no actual or personal wrong suffered by the pursuer in respect of which he can claim redress, and the probability of such a case ever arising being, to say the least of it, so problematical, if not entirely fanciful, — the question reverts, how such a reductive and declara- tory action as this can be maintained at the pursuer's instance ? Had a civil wrong been alleged to have been suffered, and redress as for loss and damage been legitimately stated for the consideration of the Court, there would have been room for enquiry into the averment bearing on the alleged changes effected by the new code. But even in that case such enquiry could not have issued in the judgment craved in this summons, but only to the effect that the redress claimed for the loss and damage suffered might be awarded notwithstanding the enactment of the code of 1863. There being no such case to be dealt with, however, is that code open to be brought into Court for examination on the grounds stated, in respect of any other right or interest possessed by the pursuer ? The proposition maintained seems to be that, as a presbyter of the Episcopal Church as constituted by the canons of 1838, he is interested to protect the Church from innovations ; and that his induction to his present pastoral charge, while the code of 1838 was in force, formed the basis of a contract with him which was violated by the code of 1863 ; and hence it is maintained he is entitled to have judicial enquiry and investigation into the alleged essential respects in which this code differs from the code of 1838, and to have the same, assuming his assertions established, declared ultra vires, if not set aside and reduced, — a plea in maintaining which the pursuer occupies no other position than any other presbyter entering the Church while the code of 1838 was in subsistence. This contention on the part of the pursuer may be considered in a twofold aspect — first, as regards its sufficiency to support the title and interest of the pursuer to insist in and maintain this action ; and, second, as regards the sufficiency of the statements on record to support the allegations of breach of the contract, such as it is, which the pursuer alleges to exist, and to have been broken. (1.) The first point resolves into the questipn, whether there is a title in every presbyter of the Church, as matter of contract, to evoke the jurisdic- tion of the CivU Court to set aside and overrule any alleged departure from the doctrine and discipline subsisting in the Church at the time of his entering on his office, which the constituted authorities may at some future period consider it expedient to enact ? To affirm this proposition in the 2e 418 LEADING ECCLESIASTICAL CASES abstract, and irrespective of aUeged patrimonial injury to he redressed, would, I apprehend, be as inconsistent with sound principle as it is un- sanctioned by any precedent. The Court will not take notice of religious opinions with a view to decide whether they are right or wrong, or whether regulations for the internal administration and discipline of a religious body have been rightly and properly adopted ; but it wiU notice them as facts pointing out the ownership of property, or as supporting a claim for civil redress for civil wrong. Nor does the dictum of Lord Eldon, C. (1 Dow, 16) lose its force by asserting that in the new regula- tions and declaration of doctrines there is a departure from the old principles to which some of the body may still tenaciously adhere. When no patrimonial right is to be settled or no injury patrimonially to be redressed, it is' vain for dissentients to plead breach of contract with them on the part of the ruling authorities within the Church. It is the province of the civil courts to redress civU wrongs. It is not their province, and has not been their practice, to interfere as courts of review with the theological dogma, or the internal regulations or discipline of religious sects or denominations. And it would be a strange utterance from this Court to pronounce a judgment in terms of the reductive or declaratory conclusions of the summons. The Lord Ordinary has, in my opinion, justly observed on this part of the case that the fallacy of the pursuer's action lies in his treating " the canons of his Church as if they were primarily and by their main intention a contract between the members of the Church," whereas " the canons of a church are not enacted for the purpose of constituting a contract, but to establish and regulate its doctrine and discipline." Taking this view, as there is no civil wrong or injury to redress arising out of the alleged breach of contract, the demand for judicial investigation and for a decerniture to the effect concluded for is not one which this Court will sanction. (2.) Entertaining this view, on the first aspect of the plea under consideration, I might leave the case to be decided on the grounds which have been fully noticed, and as the Lord Ordinary has done. But in justice to the parties I feel that I ought to advert shortly to the other aspect in which this plea may be considered, — its sufficiency, viz., to support the summons, having regard to the allegations in the record bearing on the question whether the changes were or were not in the power of the synod by which the code of 1863 was sanctioned. On this part of the case it is not my intention to enlarge, being aware that it would be dwelt upon by some of your Lordships, and fully explained. A few observations will suffice to indicate generally the legal grounds on which I hold that the pursuer's case, in so far as based on want of power in the synod to sanction the code of 1863, is, on his own shewing, with- out real foundation, and irrelevant. DECIDED IN THE COUKT OF SESSION. 419 On his admission into the pastoral office he now fills, the pursuer subscribed the Thirty-nine Articles of the Church of England, as every presbyter of this Church has done since 1804, or at least 1811 j and also the formula promising obedience to the canons of the Scotch Episcopal Church of 1838. Any contract which he can allege must be founded on these documents ; and if, on examination, it appear that by their terms power must be held, either expressly or impliedly, to have been reserved to the synods of the Church to alter the subsisting canons in such respects as they were changed in 1863, it is obvious that this action, based as it is on the opposite assumption, entirely fails. Now (1), by the 20th and 34th of the Thirty-nine Articles it is expressly recognised that "every particular or national church hath authority to ordain, change, and abolish ceremonies or rites of the church ordained only by man's authority j" and (2) by the 21st canon of the code of 1838, this power is expressly declared to be possessed by the Scotch Episcopal Church, and certain changes are thereby effected and declared. It is to be enquired, therefore, whether, in what they did in 1863, the synod exceeded the power thus held and declared by the canons of 1838 themselves to be in the Church. "What is mainly complained of is the enactment in the code of 1863 in relation to the Scotch Communion Office, and it is the departure from the canon 21 of the then subsisting code, which is the great objection taken to the proceedings of the synod. But the very power on which the Church acted in 1838 in passing the canon 21 is the power in virtue of which the changes effected by the code of 1863 are maintained to have been within the synod's competency. Strange inconsistency it would be to hold that while the power recognised to be in the Church as am inherent part of its constitution in terms of those articles 20 and 34, entitled the synod of 1838 to make the regulations then declared as to the Communion Office, that same power could not be exercised by the synod of 1863 to modify and alter these regulations ! The constitution of the Church recognised the power as ever subsisting, and capable of being acted on at whatever time judged to be expedient by the Church, and for edification. It was of a Church so constituted the pursuer became a presbyter, and it was a code of canons embodying the power in the Church to alter and modify them which the pursuer subscribed. It is vain, therefore, for him to complain of excess of power, unless he aver that the changes are in matters " not of man's authority," which he has not done, and which he could not have done in the face of the terms of canon 21, which deals with this very matter. The pursuer, however, refers to, and founds on, canon 33 of the code 1838, and contends that the power of the church judicatories to deal with 420 LEADING ECCLESIASTICAL CASES the existing institution was thereby limited. By canon 32 it is provided that canons or rules for the order and discipline of the Church shall be enacted by a General Synod only, and that by the consent and approbation of a majority of both chambers. And by canon 33 it is declared that a General Synod, duly and lawfully assembled, has the undoubted power to alter, amend, and abrogate the canons in force, and to make new canons, the same " being in conformity with the recognised constitution and acknowledged practice of this Church." This recognition of the legisla- tive power and authority of General Synods is consistent with the view given of the government and practice of the Church in this respect, in the introduction to the code of 1838. For, whUe the doctrine of the Church as founded on Scripture, and the government in its essential parts as pre- scribed by its divine Head are there declared " fixed and immutable," — the discipline for furthering the purposes of ecclesiastical government, and " regulating the solemnities of pubKc worship, as to time, place, and form," is recognised as the subject of determination "by Christian wisdom, prudence, and charity;'' and it is added, "that when any particular Church has drawn up a body of canons for its own use, regard has always been had to its peculiar station at the time when its discipliue was thus regulated." Various canons are then mentioned as having been from time to time in force in the Scotch Episcopal Church ; and in- conformity with the power thus recognised to exist iu the Church, this code of 1838 was passed, including the canon 33, to the effect mentioned. The only question thus comes to be, whether the words with which the canon con- cludes are to be interpreted so as to limit and interfere with the exercise of the power to the effect to which it was acted on in 1863 1 It may be difficult to define with precision the meaning of the limit- ing terms, " recognised constitution and acknowledged practice of this Church ;" but— (1.) I cannot hold that either in intention or according to their sound meaning, these words were inserted in the canon 33 to limit the general authority possessed by the Church, and to be acted on by General Synods recognised by canon 21, as regard the regulation from time to time, when judged expedient, of ceremonies and rites which were " of man's authority" merely. (2.) As little can I hold that the words can apply to anything in the practice of the Church having its origin in, and following on, canons which may have for the time been in force ; for the power of General Synods to alter canons " in force " is expressly recognised in this very code. And — (3.) It seems to me clear that, reading the whole phraseology together, the disconformity intended to be guarded against was with regard to something fundamental in the constitution and practice of the Church — DECIDED IN THE COUET OP SESSION. 421 somethmg that might affect or alter its position and character as a Church, either in its doctrine, and these essential parts of its government which are declared by the synod of 1838 to be fixed and immutable, or in other essential respects relating to the general government and discipline of the Church. It would be, in my apprehension, to fritter away the im- portant proviso which the words einbody, to separate the terms " acknow- ledged practice" from their correlative terms "recognised constitution," and so attempt — by reference to a practice that may have existed for a greater or less period of time, or may have grown up in some congrega- tions, if not in unessential matters at least in relation to some of the rites or ceremonies of worship of the Church — to restrain and limit the powers of the Church in its General Synods to pass such canons as may be deemed at the time conducive to the peace and good order of the body, and to the uniformity of worship and discipline among its congregations. Taking this view, I desiderate no better prima facie evidence of the changes effected by the code of 1863 being in conformity with the con- stitution and practice of the Church, in the large sense of the terms to which I have adverted, than their having been adopted and sanctioned by the unanimous voice of the ecclesiastical authorities in General Synod assembled. I cannot rashly disregard that evidence, or permit it to be brought even into question, unless upon averments in clear and distinct terms, that the synodical acts are at variance with some fundamental doctrine, or principle, or rule, in the recognised constitution and acknow- ledged practice of the Church, in specific terms set forth. But I can find nothing of this kind in the record. The special matters complained of are all of them of quite a different character. Can it be thought doubtful, or subject to challenge on any plausible pretext, that this Church had undoubted power to authorise the establishment of missions by its bishops withiu the dioceses, — or to prescribe which of two orders of service, recog- nised equally as of authority from 1804 downwards, should be used on par- ticular occasions, in order to secure uniformity in the service by its various presbyters, — or even to ordain which of the two Communion Ofiioes — both allowed in the practice of the Church for the last half-century — shall be used at consecrations, ordinations, and synods, so as to prevent the unseemly confusion and differences that might occur, were not this made matter of positive enactment ? Altogether, I cannot but feel that it would have been an abandonment of its power of internal self-govern- ment in matters purely ecclesiastical, had this Church in 1838, by the limiting terms introduced in canon 33, intended to deprive itself, through its General Synods, of its inherent power to regulate such matters as might seem at the same time for the good of the Church. I can put no construction on those limiting words of this canon which lead to that 422 LEADING ECCLESIASTICAL CASES conclusion, and which would leave this Church, in matters of internal regulation, open to interminable questions and lawsuits, all the more likely to be pertinaciously insisted in from the very conscientiousness in which they may have their origin. On the whole case, then, I am of opinion — 1. That no sufficient interest is stated by the pursuer to justify his demand on this Court to exercise its judicial powers in the matters com- plained of ; and 2. That at any rate there is no averment in the record to support the demand in the summons for decree, on the alleged ground of want of power in the members of the General Synod of 1863 to act as they did. Lord Benholme. — The pursuer of this action, a clergyman of the Epis- copal Church in Scotland, has summoned as defenders the whole members of the General Synod of that Church, held in the years 1862 and 1863. He seeks by reductive and declaratory conclusions to set aside, as being ultra vires of the said synod, certain canons and portions of canons enacted by them on these occasions ; and to these he has subjoined cer- tain petitory conclusions against the said defenders for pecuniary loss, damages, and solatium, through the refusal of a license to a curate with whom he had contracted, arising, as he alleges, from the said enactments of the synod. The petitory conclusions, being of a pecuniary character, seem to ascertain the jurisdiction of this Court, which, indeed, has not been disputed. The present question relates to the relevancy of the summons. The Lord Ordinary has found the summons irrelevant ; and I shall now state the ground upon which I am of opinion that his Lordship's judgment is well founded. The grounds of reduction are disclosed in the declaratory conclusions, which are to the effect that it was ultra vires of the General Synod to make any change upon the canons enacted by a JFormer General Synod in 1838, which were in force and were subscribed by him at the time of his ordination, except in so far as such change " may be in conformity with the constitution which vras recognised, and the practice which was acknowledged in the said Church at the time of the pursuer's ordination as a minister thereof" The pursuer was ordained in 1848. On that occasion he subscribed the Articles of the Church of England and the subsisting canons of the Episcopal Church enacted in 1838. He sets forth, in the second article of his condescendence, that " the ordination and subscription above set forth constituted the agreement or contract which regulated the rights and privileges of the pursuer as a clergyman of the said Church." DECIDED IN THE COUET OF SESSION. 423 Such being the title of the pursuer, it is abundantly clear that he is in no higher position than any other ordained clergyman of the Church to which he belongs. His ordination and subscription differ in nothing, except in date, from those of any of his brethren. The pursuer alleges that the canons of which he complains were ultra vires of the General Synod, the legislative body of his Church ; and he appeals to the canons of 1838, in which he subsumes that he has a jus qucesitum as setting forth and defining the powers which he alleges have been exceeded. He cannot but admit, in terms of the English Articles, "that every particular or national church hath authority to ordaLu, change, and abolish ceremonies or rites of the church ordained only by man's authority;" or that, in terms of the canons of 1838, the General Synod " has the undoubted power to alter, amend, and abrogate the canons in force, and to make new canons ; and the said alterations, amendments, abrogations, and new canons being in conformity with the recognised constitution, and acknowledged practice of this Church, shall not only oblige the minority in the said synod, but all the absent members of the Church." The concluding words of this clause are founded on by the pursuer. He alleges that the new canons are not ia conformity with the " recog- nised constitution of the Church." His statement on that head seems to be contained ia the 15th article of his condescendence, in which he sets forth that when he was ordained, " he understood that the said Scotch Com- munion Of&ce was, and must continue to be, the primary authority in the said Church in the holy communion, and as setting forth the doctrine of the said Church upon the nature of that ordinance. By the new code of canons, the terms of communion of the Episcopal Church in Scotland are substantially altered." Now, in this question of relevancy, the pursuer's understanding as to the Scotch Office, his views as to its being a statement of doctrine, and as to the peculiar doctrine it sets forth, seem utterly incon- clusive. It is possible that his understanding and his views, at the time of his ordination, being contained within his own breast, were shared by no other member of the Church. They were in no respect sanctioned by anything that took place at his ordination, so as to be binding on the Church at large, or to constitute a limitation upon the legislative powers of its General Synod. When the pursufer proceeds to allege that " by the new code of canons the terms of communion of the Episcopal Church in Scotland are substantially altered," it seems natural to conclude that the change alleged has reference to his own understanding and views above set forth. If, on the other hand, this allegation is to be read absolutely, and to import that the recognised constitution of the Church has been altered by the introduction of new doctrine in regard to the holy com- 424 LEADING ECCLESIASTICAL CASES munion, tliat allegation would require to be explained and followed up by some distinct and iatelligible statement of the old doctrine which has been excluded, or of the new doctrine which has been introduced. Erom any such statement the pursuer has shrunk, although called upon in the course of the debate by the head of the Court to make it. And, in these circumstances, the argument of the defenders to the follow- ing effect has commended itseK to my mind. The doctrines of this Church are not to be found set forth and defined either in the English Office or the Scotch Office. These Offices, being both either sanctioned or permitted by the canons of the Church, must be held both of them to be consistent with the doctrines of the Church as to the solemn subject to which they relate ; but they cannot be con- sidered as creeds, or as exclusive expositions of doctrinal truth. The differences in point of form and expression between them may well give rise to a preference for the one or the other amongst the different members of the Church. But, except as matter of mere inference, in deducing which, minds of different character will necessarily disagree, no specific or distinctive doctrines can be deduced from them. It is quite otherwise with the Articles of the Church of England, which are subscribed as the basis of doctrine by all clergymen of the Episcopal Church in Scotland. These Articles have been subscribed by the pursuer ; and the 28th, 29th, 30th, and 31st Articles state in definite terms the doctrines of both Churches on the subject of the holy communion. I may further observe, that were the Scotch Communion Office to be held as constituting an exclusive creed, it has been a fluctuating and con- sequently ambiguous standard. The pursuer stated in art. 10 of his condescendence that the said Communion Office was compiled for the use of the Episcopal Church of Scotland, in or about the year 1637 ; that it has been since published in upwards of fifty editions, but always under _the same name. Now, it is admitted by the defenders that there is no question about the identity of the office referred to in the canons. But it is equally certaia that the office of 1637 is by no means the same, but very different from the more modern office, which appears to have attained its present distinctive order of construction and peculiarity of expression towards the latter part of the last century. If from these any definite doctrine, differing from or additional to the doctrine of the English Articles could be deduced by inference, that inference would inevitably fail, or lead to an opposite conclusion when applied to the office of 1637. The Scotch Communion Office undoubtedly is to be ranked as a ceremony or rite of the Church, ordained by man's authority. And the canons of 1862 and 1863 deal with that and the English Office as such. It cannot, in my opinion, be held that the pursuer has relevantly set forth DECIDED IN THE COURT OF SESSION. 425 that they are inconsistent with the recognised constitution of the Church. It remains to enquire whether they are consistent with " the acknowledged practice of the Church." It may be difficult to ascertain what was exactly meant by this expression in the canon of 1838. It seems very clear that no practice following upon and depending on a canon can here be meant ; for what a former canon introduced, a subsequent canon might certainly alter. Thus, the enactment that the Scotch Office should be used at General Synods and consecrations, could never become irrevocable by the same power that passed it, in respect of the intermediate practice adopted in obedience to the enactment. The acknowledged practice here referred to must be something very different from mere obedience to a positive enactment. Further, the practice of a Church might well vary from one period to another in regard to its forms of worship, and this has been peculiarly the case with the Scotch Episcopal Church. In it the Presbyterian forms as well as liturgical forms have at different times prevailed ; and several forms of liturgy have been used contemporaneously, according to circumstances. It seems only consistent with the common rules of construction to suppose that, by the canon of 1838, that practice of the Church must have been contemplated which obtained at the date of any General Synod, whose powers of legislation it was intended to limit or restrain. The General Synod of 1862-3, if their power were to be limited or even guided by the practice of the Church, were surely to look to the practice of the Church at the time of its session, and not to the practice at former periods, in 1637, 1768, or 1838. But this is not the view of the pursuer, who argues that it was ultra vires of the legislative body to alter the canons of 1838, except conform- ably to the practice of the Church acknowledged at the time when he was ordained. Accordingly he has not ventured to state on record that the adoption of the English Prayer-book as the service-book of the Epis- copal Church in Scotland (which is his main ground of complaint), was not in accordance with the general practice of the Church in 1862. In particular, he has not impeached the accuracy of the statement contained in the canon itself of which he complains, and which forms the narrative and basis of its enactment, viz. : — " Whereas the English-Book of Common Prayer is and has been for many years past in general use amongst us, not only for the performance of morning and evening service, but for the administration of the sacraments, and other rites and ceremonies of the Church.'' The pursuer has not, in any part of his record, disputed the accuracy of this statement. For aught that there appears, his con- gregation might have been the only congregation in the Church which in 1863 retained the use of the Scottish Office. 426 LEADING ECCLESIASTIOAIi CASES I am therefore of opinion that the pursuer has entirely failed in pointing out any excess of power on the part of the General Synod of 1863, and in his attempt to make out that the canons then enacted, of which he complains, were ultra vires on the one hand, or, on the other, inconsistent with any contract with him. The view that I have taken of the declaratory and reductive conclusions of the summons relieve me from the necessity of considering at any length the petitory conclusions. The defenders have done no wrong, in my opinion, upon the pursuer's own shewing of the case ; consequently they cannot be liable in damages to him. I shall only say that I consider his statement of pecuniary loss to be as irrelevant as are his grounds of reduction. He complains that his bishop has refused to license his curate, and he states that on an appeal to the Episcopal Synod the refusal of the bishop was affirmed. This refusal was, as he states, in conformity with art. 18, sects. 2 and 4, of the new canons, an article which he has not impeached or attempted to reduce. It appears to me that this exercise of ecclesiastical discipline on the part of the bishop, under the superintendence and review of the ecclesiastical court of appeal, cannot be made the subject of a civil claim of damages in this Court. As to the prospective inconveniences and disabilities which the pursuer contemplates, and the sentences of censure or degradation which he seems disposed to incur, it is premature to enter upon their discussion. I am clear for adhering to the Lord Ordinary's interlocutor. Lord Nbavbs. — In considering this case it is proper, and even neces- sary, to take a general view of the historical events with which it is connected. The position in Scotland of those religious reformers who were in favour of Episcopacy, meaning thereby Prelacy, or a difference in degree between a bishop and a presbyter, has long been attended with difficulties and embarrassments which, I am sorry to see, are not yet wholly at an end. As few or none of the Eoman Catholic bishops took part in the Eeformation, the nation considered itself in this manner as having reformed " from Popery by presbyters," and it was natural that the Church should be established on a Presbyterian basis, which was considered to embrace all the elements essential to the institution of the Christian ministry. A tendency, however, all along existed in influential quarters to return to Episcopacy, and it became a favourite maxim with James VI. that Episcopacy and monarchy were inseparable. His attach- ment to that view was no doubt heightened when his accession to the English throne gave him an opportunity of contrasting the dutiful sub- serviency of the English bishops with the troublesome boldness of the DECIDED IN THE COURT OF SESSION. 427 EdinlDurgh ministers. Various steps were accordingly taken for restoring Episcopacy and introducing a greater amount of ritualism into the Scottish Church ; and it is not improbable that the object in view might have been accomplished if the gradual and cautious procedure of James had not been exchanged for the more eager and less prudent innovations of his son. The rash and unwarrantable attempt of Charles as to his service- book entirely frustrated the design it was intended to promote ; and thus in a single day, as Archbishop Spottiswoode is reported to have said, the labour of thirty years was at once thrown down. The Eestoration re-established Episcopacy, but not in a manner or on a footing of which its modern admirers would feel very proud. Lauderdale, who was the unwilling instrument employed to do so, had himself been an active Covenanter, and is believed to have remained to the last a decided Presbyterian, and it almost seems as if the measures he adopted to establish Episcopacy were purposely intended to bring it into discredit. The condition of the Church, indeed, from the Eestoration to the Eevolu- tion was most anomalous. It was Episcopal, but many, if not most of its presbyters had no Episcopal ordination. The Episcopalians claimed for Episcopacy a divine origin, but the charter on which it was then rested was an Act declaratory of the King's supremacy, and an ordinance asserting his absolute right to regulate church government as he pleased, and by virtue of which he might, when he pleased, have changed or abolished what he had established. The Church, though reformed, had no symbol of belief later than the Apostles' Creed, unless it were John Knox's Confession ; and finally, though it professed to favour a liturgy, it had no set form which it could produce beyond the Lord's Prayer. As has well been said, the service-book attributed to Laud, at least as a general liturgy, made its first and last appearance in 1637. It never was adopted by the Church ; it never was ratified by any lawful authority ; and even the King's sanction to it was soon withdrawn. At the Eevolution the Episcopal party had again a chance of ascendancy. King William was a Presbyterian, but he was a man of the world and no bigot, and he would doubtless have been well pleased if he could have maintained a uniformity of church government and public worship throughout the empire. But the Scottish Episcopalians were all, to a man, adherents of the exiled family ; and there can be no doubt that a vast preponderance of the well-affected part of the nation were in favour of Presbyterianism, and had too bitter a remembrance of the persecutions they had suffered under Episcopacy to aUow of any compromise on the subject. Por a century after the Eevolution the Episcopalians were subjected to serious disabilities, and at times to severe persecution, stimulated, no doubt, by their implication in the two successive rebellions that took place. But 428 LEADING ECCLESIASTICAL CASES when they thus becapie an unestablished sect, and for some time after- wards, they were not possessed of any settled liturgy. The service-hook of Laud, attempted to he introduced in 1637, had not been again brought forward in 1662, and at the Eevolution was possessed of no position or authority in Scotland. The Eevolution, in the first instance, made no change in this respect. As many Presbyterians had conformed to the Established Church while it was Episcopal, so many Episcopalians adhered__to it while it was Presbyterian, and many of the Episcopal clergy were willing to remain in their benefices under a Presbyterian form of church government, if they had been allowed to do so. The obstacle to their so remaining was not the existence of Presbytery, still less the absence of a liturgy, but was the compulsion put upon them of acknow- ledging and taking the oaths to a Government to which they could not conscientiously transfer their allegiance. But when the Episcopalians became by degrees a separate and independent sect, they had free scope to indulge that tendency to liturgical observances which seems often, or always, to accompany the Episcopal theory. In their new position, too, the Scottish Episcopalians, being a non-juring body, were thrown into communication and communion with the English Non-jurors, who included among their numbers men of great virtue and piety, and of great talent and learning, but some of whom at the same time entertained very high notions as to the dignity of the priesthood and the authority of tradition. The English Non-jurors used, of course, as a rule the English Prayer-book ; but the extreme party among them were dissatisfied with the English Communion Service, as being too much of a commemorative and too little of sacrificial ceremony. In particular, this was the feeling of three eminent men among them, Hickes, Collyer, and Brett, and by the two last named, accordingly, a non-juring Office for the holy communion was prepared and published in 1718. This service differs from that which is contained in the English Prayer-book in several particulars, being based partly on the first liturgy of King Edward VI., and partly on an ancient liturgy, said to have been used in the Church of Jerusalem under St. James. Some of these peculiarities I shall afterwards notice. In connection with this ritual the extreme party among the Non-jurors advocated the adoption of certain usages, said to be supported by ancient tradition, among which were the mixture of water with wine in the eucharist, the use of the chrism in baptism, and of unction in the visitation of the sick, and the practice of prayer for the dead. The English Non-jurors endeavoured to enlist the Scottish Episcopalians on their side in regard both to the new Communion Office and to these usages, and several of the Scotch bishops adopted their views. Bishop Campbell, who lived in London, went warmly along with them ; and Bishop Gadderar, who was at one time a suffragan of Camp- DECIDED IN THE COURT OF SESSION. 429 beU's, is said to have carried away to Scotland a number of copies of the Non-jurors' Communion Service. These discussions revived among the Scottish Episcopalians the natural predilection that many of them had for a liturgy, but as their people were very unfavourable to this restraint, and as the clergy were not unanimous in siding with the extreme Non-jurors in England, it seems to have been thought better to build their foundation, in so far as regarded the eucharist, upon the service-book attributed to Laud, which had a semblance of authority to support it, and which had at the same time a peculiar connection with the Scottish Church. Several reprints, accordingly, of this service were then published in Scotland, and one in particular by Euddiman in 1724. The extreme party, however, among the Scottish Episcopalians were not satisfied with Laud's com- munion Office as it stood, and changes were partially and gradually intro- duced into it. A copy of it belonging to Bishop Campbell was lately in existence, with several prayers interpolated in his hand-writing, and the words " militant here on earth " erased from the invitation to pray for the whole state of the Church. The Scottish Episcopalians never adopted an express prayer for the dead, such as that which occurs in the so-called liturgy of the Church of Jerusalem, as well as in the first liturgy of Edward VI., and in the Non-jurors' Office of 1718. But the words " militant here on earth " were proposed to be omitted from Laud's service by the Scottish Episcopalians, in order, undoubtedly, that the prayer for the whole Church might not be thought to exclude departed saints. Other changes upon Laud's service were also introduced ; in particular, without noticing mere differences of arrangement, an explicit oblation of the gifts or elements, by the words " which we now offer to Thee" was introduced in imitation of the English Non-juror service, instead of a mere reference to the memorial of which Laud's service makes mention. The significance of that addition is obvious, from what somebody has called a sort of stage direction, found in Bishop Alexander's Prayer-book, by having the word eleva written over against the words of offering. The differences now mentioned — namely, the omission of the words " militant here on earth," and the insertion of the express offering of the elements, were introduced into an edition of the " Scotch Office," printed in 1743, and ascribed to Bishop Gadderar. Editions containing the same changes were published in 1755 and 1764, and other changes were then made. In the former of these the words in the invocation, " unto us,'' were changed into " to us," and in the edition of 1764 both '' unto us" and "to us" are omitted, so as to make the invocation run thus — " that they may become the body and blood of thy most dearly beloved Son." This form, agreeing in this respect with the Non-jurors' Office and the Office of the Church of Jeru- salem, came ultimately to prevail among the Scotch Episcopalians, particu- larly in the north-east of Scotland ; but other forms continued to be 430 LEADING ECCLESIASTICAL CASES published, and, in particular, in an edition printed in Edinburgh in 1796, the prayer in the invocation is that the gifts " may become the spiritual body and blood of thy most dearly beloved Son." I have not examined all the editions of the Scotch liturgy or service, but those I have mentioiied are enough to shew the variations that existed. Such, generally, is the history of the transition and changes through which the Episcopal Church passed in Scotland during the century that followed the Eevolution. It had begun without a liturgy, but it ended with a form of a Communion Office of a very fluctuating and Protean character, but which was suffi- ciently distinguished from the Communion Office of the English Prayer- book. On this Scotch Office many of the Scotch Episcopalians set a high value, on the double ground, probably, that it formed a national distinction, and that it seemed to enunciate a higher doctrine on the sub- ject of the sacrament. They clung to this peculiarity with something of that fervent zeal which is generally the effect of persecution when it does not amount to extermination. Their persecutions had indeed been severe, particularly from the time of the Eebellion of 1745, and it might well be wondered that any remnant of them had at all survived. It might not have been inappropriate if they too had, like the Estab- lished Church, assumed the emblem of the burning bush, and the motto, "Nee tamen consumebatur." But other trials were at hand for them in the season of prosperity with which they were about to be visited. The accession of George III. brought a considerable mitigation of their hardships, and the death of the last lay member of the Stuart family in 1788 was thought to leave them at liberty to transfer their allegiance to the House of Hanover. The Scotch Epis- copalians ceased to be Non-jurors, and overtures were made to relieve them of the, penalties under which they laboured. The traveller held fast his cloak against the assaults of the north wind, but surrendered it when the sun began to shine. The Scotch Episcopalians were now willing so far to abate their nationality as to adopt the English Articles of religion, and they declared themselves to be in full communion with the Church' of England, while before they had only apparently been in communion with the non-juring branch of it. They professed also their admiration of the English liturgy, which they constantly used on ordinary occasionSj and explained that though their eucharistic service was the Scottish Office, nearly as authorised by King Charles the First, they did not make it a condition of communion, but allowed their clergy to use either the Scottish or the English Office, and that some of them actually used the latter. — (Grub, iv. p. 103.) On the faith of these conciliatory assurances, which we know from history were given by the Scotch bishop to the primate of the English Church, the Act of 1792 was introduced and passed, repealing the penal laws as to those Episcopalian ministers who DECIDED IN THE COUET OF SESSION. 431 might subscribe the Thirty-nine Articles and take the oath to Govern- ment ; but a declaration was added that they should be incapable of holding any benefice in England unless they should be ordained by an English or Irish bishop. The Scotch Episcopalian Church adopted the English Articles without qualification. Another step followed, by which a union was effected between the Scotch Episcopal Church and those persons and congregations in Scotland who were connected with the Church of England under ministers ordained by English or Irish bishops. Articles of union were framed with this view, by which the English Episcopalians in Scotland came under the authority of the Scotch bishops, but reserved liberty to use the liturgy of the Church of England in all its ofi&ces. This union brought a great addition of strength to the Scotch Episcopalians, but, like other alliances, it brought consequences with it that were not fuUy anticipated. The allies — like the Saxons who came to help the Britons against the Picts — soon came to gain an ascendancy over the friends who had invited their aid. The new congregations, and still more the additional adherents that were in process of time gained from England by the immigration of English families, and the education of young persons in English schools and universities, were all prejudiced in favour of the English as compared with the Scotch Communion Office. The old Scotch Episcopalians took the alarm, and, by the canons of 1811 and 1838, asserted the primary authority, and tried "to preserve the practice of the Scotch Office. The English Office, however, confessedly gained ground, while the Scotch service became with many persons a stumbling-block and cause of offence. Its reputation perhaps suffered as much from its extreme admirers, who magnified the importance of its peculiarities, as from the attacks of its most eager opponents. This state of things not unnaturally led to the canons of 1863, by which the Scotch Office, though still allowed and authorised, is placed on a lower pedestal than it occupied before. The change coincides remarkably with the passing of the Act of 1865, removing the disability that previously attached to Scotch orders, and the passing of that Act, there is little doubt, was faciUtated by the terms of the new canons. It is in these circumstances that the present action has been brought. It is difficult not to sympathise in some degree with the feelings of the pursuer, and others who may agree with him. * An important feature in the service of his Church, distinguishing it from the Established Church of England, and at the same time thought to connect it with a tradition of remote antiquity, has been treated with some appearance of disparagement — not indeed obliterated, but thrown into the shade, and made subordinate to a different service, less distinctive, and, as he thinks, less catholic ; and this has been done upon the ground partly that this Scotch service is liable to the imputation of containing errors in doctrine, and practices approaching 432 LEADING ECCLESIASTICAL CASES to superstition, — accusations to which countenance seems in some degree to he given hy the recent changes. But the question for us to decide is not whether the pursuer's feelings are intelligible and natural, but whether his action is relevant and tenable. There is certainly a general relevancy in the case which the pursuer professes to make. He says that the Synod, whose members are here convened, have made a change in the constitution of the Scotch Episcopal Church which they had no right or power to make, either under the functions committed to them or in reference to the contract which the Church had entered into with the pursuer ; and he alleges that he has thereby suffered a civil wrong. But a case that has a general relevancy may break down upon details, by failing to specify any facts and circumstances which support the general averment ; and this, I think, is the case here. The Lord Ordinary has found that the grounds of reduction and averments on record are not relevant or suffi- cient to support the conclusions of the action. His Lordship refers, in the first place, to the conclusions of the summons, in which damages are sought, and he explains the grounds on which he holds the pursuer's case to be here irrelevant. In all of the Lord Ordinary's remarks upon this part of the case I fully concur, and have nothing to add. With regard to the reductive and declaratory conclusions, the Lord Ordinaiy seems to me to rest his judgment upon the ground mainly that the questions raised relate to an ecclesiastical matter which involves no civil right. I do not say that the Lord Ordinary's views in this respect are erroneous. On the contrary, I concur in them generally. But there is one aspect of the case on which I entertain some doubt, and would wish to reserve my opinion. Suppose it could be held that the pursuer, as he alleges, was placed by the canons complained of in imminent peril of being deprived of, or degraded from his orders, I am not satisfied that that may not involve a matter of civil injury from which the pursuer might seek protection. If, contrary to the canons and to the contract with him, the pursuer was threatened with the immediate prospect of degradation, there seems to me to be room for considering whether the possession of holy orders, and the loss of them through a wrongful act, do not involve privileges and capabilities that may infer civil or patrimonial consequences. Clerical orders conferred by a non-established church may have little or no civil effect in this part of the island. But they may possibly confer benefits elsewhere which may entitle the pursuer to have them preserved by the interference -of a civil court. The pursuer may not be in a situation personally to urge this plea, or his complaints may be groundless, or his action premature, or not directed against the proper parties, but at present I should hesitate to throw it out on the mere ground that it involved no civil interest. It was suggested at the bar that the pursuer's orders could not be taken away. But this is a mistake. The church that confers DECIDED IN THE COUET OF SESSION. 433 orders can take th.em away, and the new canons contemplate the exercise of this power. The ground on which I am prepared, without difficulty, to adhere to the Lord Ordinary's interlocutor, is that the pursuer has not shewn any excess of powers in the acts of the defenders, or any contract of which they have committed a breach. In these respects I consider the pursuer's statements to he whoUy irrelevant and insufficient. The com- plaints of the pursuer are twofold — (1) as to the way in which the Scotch Office has been dealt with in the new canons ; and (2) as to the position in which the pursuer is now placed as to the other services of the English liturgy. First. And first with regard to the Communion Office : In this question, and between these parties, I consider one point to be clear — viz., that each of the two Communion Services referred to must be regarded, first, as resting upon sound doctrinal views ; second, as in accordance with the Thirty-nine Articles of Eeligion ; and, third, as being adequate and sufficient to convey the grace and exercise the sacred influ- ence which are held to accompany this holy celebration. One service may please some tastes more than the other ; one of them may be thought to express more clearly what is meant, or the other to guard more cautiously against the possibility of misconstruction. But both must be held by all the members of this community to be safe, sufficient, and orthodox. None of the parties here can be heard to say that either of the two is defective in essentials or at variance with Scripture. Whether the preference be given to the one or to the other, both are sanctioned by all the canons, old and new, and it cannot be supposed that the Church would sanction what is defective or erroneous. Whatever its words may be they must be construed in an orthodox sense. I wish to judge no man, but if there be any minister or bishop of the Scotch Episcopal Church that thinks the Scotch Office superstitious or unscrip- tural, it humbly appears to me that the sooner he leaves this Church the better for his own peace of mind, as, under the second section of the 30th canon of 1863, he may be compelled, if he becomes a bishop, to sanction it, which it might be difficult for him to do. On the other hand, I cannot listen to any allegations by the pursuer that the English Office is defective or unsound. He has not said so on record, but in the course of debate his counsel said something to that effect, and suggested, in particular, that he could not conscientiously be present at synods or other meetings at which the English Office might be used. Are we to understand from this that the pursuer could not worship or partake of the communion in a congregation which uses the Enghsh Office, and that in this way one part of the Scottish Episcopal Church is not in com- munion with the other 1 This is a kind of schism which I do not under- stand, and which is not to be supposed or countenanced. 1 hold, then, 2 F 434 LEADING ECCLESIASTICAL CASES that according to the canons of this community, both services are sub- stantially the same, and are different forms of the same observance. This, I think, was assumed and implied in the transactions that led to the Act 1792, to the union that took place in 1804, and to the canons of 1811 and 1838, which last the pursuer subscribed, and to which he refers as containing the charter of his rights. This being the case, the question is whether the alteration made by the canons of 1863 as to the relative position of these offices was ultra vires oT contrary to contract ? On this point it seems almost sufficient to refer to the 21st canon of 1838 which is the same also as the corresponding canon of 1811. It is there set forth as the right of the Church at large, and of every national church in par- ticular, " to ordain, change, and abolish ceremonies or rites of the Church, ordained only by man's authority." This privilege is asserted as the explanation and justification of the Scotch Church having one office while the Church of England has another. The Communion Service thus referred to is in this way expressly classed as one of those ceremonies or rites ordained only -by man's authority, — i.e., although the eucharist in itself is a divine injunction, the manner of celebrating it is a rite or ceremony of merely human authority, which every church may order or vary as it thinks best. In the face of this declaration, it seems impossible to question the right of the Scotch Episcopal Church to deal with the Communion Office in any manner consistent with sound doctrine ; and as I have already shewn that both of these offices must here be held to be unexceptionable, I cannot see how we can refuse effect to an enact- ment which merely alters the relative precedence of these two offices, both of which were already authorised. Eeference is made by the pursuer to the 33d canon of 1838, which is said to limit the power of a General Synod to alter canons only where the alterations are in conformity with the recognised constitution and acknowledged practice of the Church. But it is part of the constitution that the Church can alter rites and cere- monies, and it is not denied that the synod represents the Church in this respect. With regard to the acknowledged practice, that can only mean that alterations are not to be at variance with the practice of the Church in essentials. It cannot mean that no practice can be changed, because every change of a canon must infer a change of practice. But what has been the acknowledged practice of this Church as to the Communion Service 1 It has been seen that when the Episcopalians formed part of the Established Church in Scotland they had no liturgy or set forms of any kind. Again, after the Eevolution, they had no liturgy or settled forms, and when these came gradually to be introduced, it was done in an anomalous and irregular manner by individual bishops and congregations adopting certain forms, among which great discrepancy prevailed down DECIDED IN THE COURT OF SESSION. 435 to a very late period, while the form for which the pursuer contends has no sanction of any regular kind, nor any authorised text to which an appeal can be made. The canons of 1811 and 1838 are scarcely intel- ligible or consistent, and on this matter certainly do not support the pursuer's case. They speak of the authority which introduced the Scotch Service, meaning obviously the authority of the King in 1637 ; but the office for which the pursuer contends, and which he says was sanctioned by these canons, is not the King's Office, but something materially different, and traceable to no authority whatever. , The acknowledged practice of this Church indeed in this matter has been not to preserve stability, but to make constant changes in the Communion Office from time to time — a practice in accordance with the power of change asserted in the canons, however loosely it may sometimes have been exercised. Further, there can be no doubt that, looking to the practice for the period between 1838 and 1863, the tendency has been in the direction of the English Office. This is not disputed by the pursuer. The Anglican view has gained ground from the obvious causes already referred to, and the feeling in favour of the Scotch Office has diminished in point of extent, although it may not have diminished in point of intensity, where it remained at all. It was not unreasonable in the General Synod to give effect to this change of feeling, if they had the power to do so, and thus to bring the rule of the Church in conformity with the prevailing feeling. That is the ratio set forth in the new canons, and not contra- dicted by the pursuer. The case of the pursuer seems to be, that under the canons of 1838, and in a question with him, the terms and position of the Scotch Office were immutable. This surely cannot be maintained. It cannot be supposed that any Church would tie up its hands in this manner in the very same breath in which it declares that every Church has an inherent right to alter rites and ceremonies, and that the Com- munion Service is one of the things to which that power extends. Suppose that the synod of 1863 had gone back to Laud's Office itself, and had annulled all the recent additions and alterations to which it had been subjected by individual bishops or parties in the Church, would that have been ultra vires of the synod, or a breach of contract with the pursuer 1 It -would be very strange to say so, and yet the adoption of the English Office is only an exercise of the same kind of power, and in the same direction. It may perhaps, indeed, be thought there is more differ- ence between Laud's Office and the Scotch Office as it now stands, than between Laud's Office and the English liturgy. It must always, no doubt, be a limitation on the power of the Church, or of the synod, that any alteration made in the Communion Office shall be consistent with sound doctrine, and shall not affect the celebration of the sacrament as a 436 LEADING ECCLESIASTICAL CASES. divine institution ; tut if I am right in thinking that the English Office must between these parties be held to be unobjectionable, no difficulty arises on this head. I can find, therefore, no excess of powers in anything the defenders have here done, and no contract between them and the pursuer which could prevent them from varying the comparative use or relative position of these two services. The utmost that the pursuer could make of this matter seems to be, that it is a part of the constitution of this Church that there shall be two authorised "services, and not one only, and that individual congregations shall be allowed their choice in this respect. I do not say that even this is clear, but is seems to me to be the utmost limit to which it is possible to extend the kind of contract on which the pursuer founds. Whether the Church will go further than they have done in this matter, and seek by some future canon to oust the Scotch Office altogether and deprive it of any authority or observance, is a matter on which it is needless to speculate, and which may depend on whether it may be for the majus bonum of the Church that this should be done. It has not been done yet, and the pursuer, and others of his way of think- ing, are by the new canon at full liberty to remain in communion with their brethren, and use the Scotch Office so long as they can form a congregation of which the majority is in favour of that service. Second. As to the use of the English Prayer-book, which the pursuer complains of having forced upon him in other services, I cannot see that the pursuer is placed by the canons of 1863 in a different position from what he occupied before. With regard to the burial service, many good men have objected to the indiscriminate way in which the deceased person isspoken of as a Christian brother or sister, for whom the sure hope of a blessed resurrection may seem to be entertained. But in Scotland, where the pursuer's Church is not established, he cannot be called upon to bury any who are not of his own communion, and he cannot surely object to its being supposed that such persons are in a state of acceptance -where they have not been excommunicated, but retained in the bosom of the Church. Upon the whole, being clearly of opinion that the pursuer here has not shewn any excess of powers, or any breach of contract, I am for adhering to the Lord Ordinary's interlocutor. The Court pronounced this interlocutor : — " Eefuse said note, and adhere to the interlocutor reclaimed against, with additional expenses ; and remit," etc. Affirmed in the House of Lords 11th April 1867, 5 M. (H. L.) 36. WiLMAM Peacock, S.S.C— Ronald & Eitohib, S.S.C— Agents. Printed iy R. & R. Clakk, Edinhirgh. ^ms^ssssssMsssi^