out the concurrence of Parliament. Never was time so propitious for the candid consideration of religious questions. Reforms were being introduced into the church; the grievances of dissenters were being redressed; a popular party were in the ascendant; and agitation had lately shown its power over the deliberations of the legislature. A Veto Act, or other compromise sanctioned by Parliament, would have brought peace to the church. But now the state had made one law: the church another; and how far they were compatible was soon brought to a painful issue.

Auchterarder

1839.

In the same year, Lord Kinnoull presented Mr. Young to the vacant parish of Auchterarder; but a major. case, 1831-ity of the male heads of families having objected to his presentation, without stating any special grounds of objection, the presbytery refused to proceed with his trials, in the accustomed form, and judge of his qualifications. Mr. Young appealed to the synod of Perth and Stirling, and thence to the General Assembly; and the presbytery being upheld by both these courts, rejected Mr Young.

Adverse judgments of the civil courts.

Having vainly appealed to the superior church courts, Lord Kinnoull and Mr. Young claimed from the Court of Session an enforcement of their civil rights. They maintained that the presbytery, as a church court, were bound to adjudge the fitness of the presentee, and not to delegate that duty to the people, whose right was not recognized by law; and that his rejection, on account of the veto, was illegal. The presbytery contended that, admission to the pastoral office being the function of the church, she had a right to consider the veto of the congregation as a test of fitness, and to prescribe rules for the guidance of presbyteries. In the exercise of such functions the jurisdiction of the church was supreme and beyond the control of the civil tribunals. The court, however, held that neither the law of the church, prior to the Veto Act, nor the law of the land, recognized the right of a congregation to reject

a qualified minister. It was the duty of the presbytery to judge of his fitness, on grounds stated and examined; and the Veto Act, in conferring such a power upon congregations, violated the civil and patrimonial rights of patrons, secured to them by statute, and hitherto protected by the church herself. Upon the question of jurisdiction, the court maintained its unquestionable authority to give redress to suitors who complained of a violation of their civil rights; and while admitting the competency of the church to deal with matters of doctrine and discipline, declared that in trenching upon civil rights she had transgressed the limits of her jurisdiction. To deny the right of the Court of Session to give effect to the provisions of the statute law, when contravened by church courts, was to establish the supremacy of the church over the state. From this decision the Presbytery appealed to the House of Lords, by whom, after able arguments at the bar, and masterly judgments from Lord Chancellor Cottenham and Lord Brougham, it was, on every point, affirmed.2

eral Assem

Submission to the law, even under protest, and an appeal to the remedial equity of Parliament, might now Resistance have averted an irreconcilable conflict between of the Genthe civil and ecclesiastical powers, without an bly. absolute surrender of the principles for which the church was contending. But this occasion was lost. The Assembly, indeed, suspended the operation of the Veto Act for a year; and agreed that, so far as the temporalities of Auchterarder were concerned, the case was concluded against the church. The manse, the glebe, and the stipend should be given up; but whatever concerned the duties of a presbytery, in regard to the cure of souls and the ministry of the gospel, was purely ecclesiastical and beyond the jurisdiction of any civil court. A presbytery being a church court, exercising

1 Robertson's Report of the Auchterarder Case, 2 vols. 8vo., 1838.

2 Maclean and Robinson's cases decided in the House of Lords, 1839, i

spiritual powers, was amenable to the Assembly only, and was not to be coerced by the civil power. On these grounds it was determined to refuse obedience to the courts; and the hopeless strife continued between the two jurisdictions, embittered by strong party differences in the Assembly and among the laity of Scotland. Parliament alone could have stayed it but the resistance of the church forbade its interposition; and a compromise, proposed by Lord Aberdeen, was rejected by the Assembly.

The judgment of the Court of Session having been af Second Auch- firmed, the presbytery were directed to make trial terarder case. of the qualifications of Mr. Young; but they again refused. For this refusal Lord Kinnoull and Mr. Young brought an action for damages, in the Court of Session, against the majority of the presbytery; and obtained an unanimous decision that they were entitled to pecuniary redress for the civil wrongs they had sustained. On appeal to the House of Lords, this judgment also was unanimously affirmed. In another case, the Court of Session

Daviot case, Dec. 17th, 1839.

interfered in a more peremptory form. The crown presented Mr. Mackintosh to the living of Daviot and Dunlichity: when several parishioners, who had been canvassing for another candidate, whose claims they had vainly pressed upon the secretary of state, prepared to exercise a veto. But as such a proceeding had been pronounced illegal by the House of Lords, Mr. Mackintosh obtained from the Court of Session a decree, interdicting the heads of families from appearing before the presbytery and declaring their dissent without assigning special objections.2

The Strath

While this litigation was proceeding, the civil and ecclesiastical authorities were brought into more direct bogie cases. and violent collision. Mr. Edwards was presented, by the trustees of Lord Fife, to the living of

1 July 11th, 1842. Bell's Cases decided in the House of Lords, i. 662. 2 Dunlop, Bell and Murray's Reports, ii. 253.

Marnoch, in the presbytery of Strathbogie; but a majority of the male heads of families having signified their veto, the seven ministers constituting the presbytery, in obedience to the law of the church and an order of the General Assembly, refused to admit him to his trials. Mr. Edwards appealed to the Court of Session, and obtained a decree directing the presbytery to admit him to the living, if found qualified. The ministers of the presbytery were now placed in the painful dilemma of being obliged to disobey either the decree of the civil court, or the order of the supreme court of the church. In one case they would be punished for contempt; in the other for contumacy. Prohibited by a commission of Assembly from proceeding further before the next General Assembly, they nevertheless resolved, as ministers of the established church sworn to pay allegiance to the crown, to render obedience to the law, constitutionally interpreted and declared. For this offence against the church they were suspended by the commission of Assembly; and their proceedings as a presbytery were annulled.1

ters, Feb.

The Court of Session, thus defied by the church, suspended the execution of the sentence of the com- The Strathmission of Assembly against the suspended min- bogie minisisters, prohibited the service of the sentence of 14th, 1840. suspension, and forbade other ministers from preaching or intruding into their churches or schools. These proceedings being reported to the General Assembly, that body approved of the acts of the commission, further suspended the ministers, and again provided for the performance of their parochial duties. Again the Court of Session interfered, and prohibited the execution of these acts of the

1 Dec. 11th, 1839.

2 Dunlop, Bell, and Murray's Reports, ii. 258, 585. Lord Gillies on the question of jurisdiction, said: "The pretensions of the church of Scotland, at present, are exactly those of the Papal See a few centuries ago. They not only decline the jurisdiction of the civil courts, but they deny that Parliament can bind them by a law which they choose to say is incon sistent with the law of Christ."

Assembly, which were in open defiance of its previous interdicts. The church was in no mood to abate her pretensions. Hitherto the members of the Strathbogie presbytery had been under sentence of suspension only. They had vainly sought protection from Parliament; and on the 27th of May, 1841, the General Assembly deposed them from the ministry. Dr. Chalmers, in moving their deposition, betrayed the spirit which animated that Assembly, and the dangers which were now threatening the establishment. "The church of Scotland," he said, “can never give way, and will sooner give up her existence as a national establishment, than give up her powers as a self-acting and self-regulating body to do what in her judgment is best for the honor of the Redeemer and the interest of his

kingdom upon earth.” 2 It was evident that the ruling party in the Assembly were prepared to resist the civil authority, at all hazards.

The Strathbogie commissioners.

The contest between the civil and ecclesiastical jurisdictions was now pushed still further. The majority of the presbytery of Strathbogie, who had been deposed by the General Assembly but reinstated by the Court of Session, elected commissioners to the General Assembly: the minority elected others. The Court of Session interdicted the commissioners elected by the minority from taking their seats in the Assembly. And in restraining the contumacy of these refractory commissioners, the civil court was forced to adjudge the constitution and rights of the Ecclesiastical Assembly. All these decisions were founded on the principle that ministers and members of the Church of Scotland were not to be permitted to refuse

1 June 11th, 1840. Dunlop, Bell, and Murray's Reports, ii. 1047, 1380. 2 Ann. Reg., 1841, p. 71-73; Hans. Deb., 3d Ser., lvii. 1377; lviii. 1503. 8 May 27th, 1842. Dunlop, Bell, and Murray's Reports, iv. 1298. Lord Fullerton, who differed from the majority of the court, said:—“According to my present impression, this court has no more right to grant such an interdict, than to interdict any persons from taking their seats and acting and voting as members of the House of Commons."- - Ibid.