Attorney-General v. Murdoch.

not alone to be a minister of that church, but also to be in communion with her.

Each of these propositions is combated by the appellants, who insist that Mr. Murdoch is a proper and fit person to be and continue the minister upon this foundation; that he was so when first elected and placed upon it, and that he has ever since continued to be so. Such is the main or sole issue, or such the main or sole issues before us for determination, and that determination must depend (for the controversy, if not merely of fact, is more of fact than of law,) on the evidence, the admissible evidence, before the court; especially as it has been stated by the counsel on each side, that they believe the case as it stands to contain all the evidence capable of being usefully brought forward.

Now, though it will I think be convenient to deal with the second proposition of the relators and plaintiffs first, it may be as well previously to notice the earliest entry in one of the two only books belonging or relating to this meeting-house, which have, so far as I am aware, been produced, a book, namely, in the nature of a kirk session record, or kirk session book. That entry shows the manner in which Mr. Murdoch's election and appointment took place, and is thus:— "Session Record of Hyde Hill Chapel, Berwick-upon-Tweed, in connection with the Church of Scotland: 1836. At a meeting of the congregation of Hyde Hill Chapel, formerly known by the name of the Low Meeting, the congregation proceeded to elect a pastor from among four candidates who had preached on trial, namely, the Rev. Alexander Murdoch, Rev. Robert Broomfield, Rev. Alexander Rennison, and the Rev. William M. Thompson, when the Rev. Alexander Murdoch, assistant to the Rev. James Melville Macculloch, of Kelso, was chosen by a majority of eighty-seven votes." "1836. A call signed by the elders and trustees and seat-holders was given to the Rev. Alexander Murdoch, and an application made to the Presbytery of Kelso praying that reverend body to take him on trial for ordination, to which they readily acceded." "At a meeting of trustees on the 12th day of June, 1836, a deputation from the congregation, consisting of Messrs. William Wilson, William Smith, and William Rutherford, elders and trustees, and Mr. Robert Marshall, trustee, was appointed, who attended the meeting of the presbytery upon Tuesday, the 14th day of June, which day the Rev. Alexander Murdoch was ordained to the pastoral office on that occasion, as also on Thursday, the 16th day of June, when the Rev. Alexander Murdoch was inducted; the Rev. James Thompson of Ednam, Moderator of the Presbytery of Kelso, presided." "On Sabbath, the 19th day of June, the Rev. James Melville Macculloch preached on the forenoon, and introduced their pastor to his flock."

I may also at the same time observe, that, with respect to the same transaction, the other of the two books has these entries:

"Low Meeting, 5th May, 1836. "The committee having met agreeable to the resolutions of the 2d

Attorney-General v. Murdoch.

instant, proceeded with the election, when the numbers were as follows, viz.:

"The chairman having announced the above to the meeting, informed that the election lay between Mr. Murdoch and Mr. Rennison, and would take place on Monday 1st at four o'clock, and close at eight o'clock."

"Low Meeting, 9th May, 1836. "Agreeable to the above, the election was proceeded with this evening, when the numbers were for

Mr. Murdoch

Mr. Rennison.

201

114

87 majority for

Mr. Murdoch, who was declared pastor of the congregation."

May, 1836. The call to the Rev. A. Murdoch, with a letter to the Presbytery of Kelso, praying them to sustain the same, and requesting ordination, was transmitted to the moderator (Rev. Mr. Thompson, Ednam.")

"June 5, 1836. At a meeting of trustees and elders, it was resolved that the members of Chirnside Presbytery, with the clergymen of Berwick and Tweedmouth, be invited to dine at the Hen and Chickens Inn on Thursday, the 16th, the day of Mr. Murdoch's induc tion."

"June 12, 1836. At a meeting of trustees and elders. It was stated that a deputation ought to be sent to Kelso, to attend the ordination of Mr. Murdoch. (Copy.").

"Resolved unanimously, that a deputation be appointed to attend the meeting of presbytery to be held at Kelso on Tuesday next, 14th June, for the purpose of ordaining the Rev. Alexander Murdoch, preparatory to his being inducted their minister. That the deputation consist of Messrs. Robert Marshall, William Wilson, William Smith, and William Rutherford, and that they be required to present the grateful thanks of this meeting to the reverend the moderator and other members of the presbytery for their kind attention in holding their meeting the earliest possible for the occasion.

(Signed)

J. M. DICKSON, Chairman."

And the books of proceedings of the Presbytery of Kelso, in Scotland, under the date of the 1st June, 1836, contain the following memorandums:

"Kelso, June 1, 1836.

"The presbytery convened pro re nata, and was constituted, &c.

Attorney-General v. Murdoch.

The moderator stated that he had called this meeting for the purpose of taking steps towards the ordination of Mr. Alexander Murdoch, preacher of the gospel, in the view of his entering on the pastoral charge of the Low Meeting at Berwick-upon-Tweed, in consequence of an application transmitted to him in the name of the congregation and elders of the said meeting, together with a call from the same, numerously signed, which documents the moderator produced and read.

"The moderator's conduct in calling the meeting was unanimously approved of by the presbytery.

"There was produced and read a letter of acceptance from Mr. Murdoch, and a certificate from Baillie Main, bearing that he had qualified to government in terms of law. The presbytery ordered. said papers to be kept in retentis.

"Thereupon, the presbytery being satisfied with the documents laid on the table, resolved to take steps towards the ordination of Mr. Murdoch to the aforesaid charge, and prescribed to him the following homily: Matt. v. 8; Lect. Matt. xvii. 1, 9; Exegesis, Num Deus ex purâ misericordia absque satisfactione nos justifical; exercise and addition, 1 Pet. ch. i. 19, 20, 21; Sermon, Hebrew xii. 3. Mr. Murdoch was also appointed to translate the 1st Psalm in Hebrew, and the Greek New Testament ad aperturam libri, and to be examined. in Systematic Theology, and on the Sixteenth Century of Ecclesiastical History.

"The presbytery thereafter proceeded to take Mr. Murdoch's trials in Greek, Hebrew, Theology, and Ecclesiastical History, as prescribed; and Mr. Murdoch having been removed, the presbytery unanimously sustained the same; he was called in, and the judgment of the presbytery intimated to him by the moderator.

"The presbytery agreed to adjourn to one o'clock, and the sederunt closed with prayer."

"Kelso, June 1, 1836.

The presbytery met agreeably to adjournment, and was constituted, &c.

"The presbytery proceeded to hear Mr. Murdoch's exegesis and exercise and addition, which they unanimously sustained as part of his trials.

"The presbytery then agreed to adjourn this meeting to the 14th current, at eleven o'clock forenoon, and instructed the clerk to intimate the same to absent members. The sederunt closed with prayer."

"The presbytery met, &c.

"Kelso, June 14, 1836.

"The presbytery proceeded to take Mr. Murdoch's remaining trials. He read a homily and lecture on the subject prescribed, both which documents were sustained by the presbytery; and Mr. Murdoch being called, the same was intimated to him by the moderator. The presbytery then heard Mr. Murdoch's popular sermon; and he being removed, they proceeded to take a conjoint view of all his trials, which

Attorney-General v. Murdoch.

were unanimously sustained, and the same intimated to him by the said moderator. He was then asked judicially whether he was willing to sign the confession of faith when required, and answered in the affirmative. There was produced and read a mandate from the trustees and elders of the Low Meeting at Berwick to wait upon the presbytery as a deputation to express to them their thanks for the promptitude with which the presbytery had taken the necessary steps towards the settlement of their minister. The presbytery then appointed their moderator to preside at the ordination of Mr. Murdoch, to take place this day, in the church of Kelso, and public worship to begin at one o'clock. Whereupon the presbytery, with Mr. Sym, one of the ministers of Edinburgh, proceeded to church, and after sermon by the moderator on 2 Thes. chap. i. verse 2, middle clause, in words, And fulfil the good pleasure of his goodness,' the presbytery, with the correspondent, did solemnly ordain Mr. Murdoch to the office of the ministry, and there gave him the right hand of fellowship."

เ

Nor will it perhaps be superfluous here to mention the General Assembly's Act of 31st May, 1813, respecting the licensing of probationers, and its act concerning probationers of 22d May, 1711, especially the formula.1

These documents lead by themselves, perhaps, necessarily to the inference that it was in the character of a person in communion and in connection with the Established Church of Scotland in the character of a person qualified by doctrine, opinions, and conduct to be one of her ministers that Mr. Murdoch was elected to be the minister upon this foundation, and that he became so in the character of an actual minister of the Established Church of Scotland.

He seems to have continued, outwardly and apparently at least and perhaps sincerely, to be in the same communion and connection, and at peace and in harmony, with the Established Church of Scot land, and to all intents one of her recognized ministers, until the schism and disruption, to which I must now refer, stating preliminarily, though perhaps superfluously, that, in every instance in which I have mentioned, or shall mention, the Established Church of Scotland, I mean, of course, that church in a Presbyterian state; and that whenever I shall use the word "Presbyterianism," or the word "Presbyterian," their sense with me is to be taken as Trinitarian, and not Socinian.

In the year 1843 (as it is well known,) a great secession from the Established Church of Scotland, which had for some time been impending, took place, an occasion upon which the General Assembly of that church framed and promulgated their enactment of May, 1843, stated at length with substantial, if not perfect accuracy, in the report by Mr. DeGex and Mr. Smale, of the case of the Attorney-General v. Munro, a case not the same exactly as the present, 66 nec diversa tamen," or if diverse, perhaps not widely so, nor perhaps without some

1 See 2 De Gex & Smale, 176.

Attorney-General v. Murdoch.

common points, though it would probably be hard and unjust to these appellants to liken them, or their conduct, to some of the persons, or some of the conduct, that I had brought before me there. It must, I think, be inferred and believed that of this enactment of May, 1843, Mr. Murdoch disapproved thoroughly, avowedly, publicly. He attended and participated in the meeting or assembly called the Synod of the Presbyterian Church in England, which took place at Berwick, in Hyde Hill Chapel itself, in April, 1844, and concurred, actively concurred, in certain overtures carried unanimously, adopted unanimously, by that meeting or assembly, and, if it was a synod (as it professed to be,) by that synod. The carrying of those overtures became immediately notorious; among their contents are these pas

sages:

"Wherefore, the associated presbyteries constituting this church, in synod assembled, acting upon their own authority, as set down in the premises, and possessing the same right and power now to alter, as at the first to assume their present designation, hereby resolve, decree, and declare that the designation of this church shall, from this time forth, be The Presbyterian Church in England;' as also this synod further resolves and declares, that being and continuing the same corporate body it has hitherto been, unchanged in doctrine, discipline, government, or mode of worship (in respect of all which, each member of this synod solemnly adheres to his ordination vows, and will continue, through grace, steadfastly to maintain and adhere to the same,) the Presbyterian Church in England will continue to assert all its lawful claims, and to maintain all its lawful possessions, rights, and privileges, of what sort soever they be, as the same have been hitherto claimed or possessed by this church.

"Second. That this church shall, through the grace of Almighty God, as an independent branch of the church of Christ, and in virtue of its own inherent powers of self-government and jurisdiction, administer its religious ordinances, make its own disciplinary and ritual regulations, and exercise its spiritual jurisdiction, and further maintain inviolate all the rights, powers, and privileges wherewith Christ has invested it, in all matters, according to the premises.

"Third. That, in all acts of intercourse with another branch or other branches of the church of Christ, or in forming or maintaining a friendly relation or relations with such branch or branches of the church of Christ, this church shall assert, provide for, and maintain its own freedom and independence in all matters spiritual, according to the premises."

The next overture taken up was the following on non-intrusion and spiritual independence:

"Manchester, 27th March, 1844. Which day the presbytery of Lancashire, being met and constituted, inter alia the presbytery unanimously agreed to transmit the following overture to the synod, viz.:

"It is hereby humbly overtured to the very reverend the Synod of the Presbyterian Church of England, by the reverend the Presbytery