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where the right of presentation falls to them jure devoluto; and it is not a little remarkable, that though the nonintrusion principle seems to contemplate the tripartite division of influence between the patron, and the people, and the Church, as likely to be productive of the most salutary effects, yet, wherever the jus devolutum arises, there is concentrated in the presbytery alone the powers and privileges of the whole three. For the regulations of 1834 provide, "that if no presentation shall be given within the limited time, to a person from whose settlement a majority on the roll do not dissent, the presbytery shall then present jure devoluto ;" and "that cases of presentation by the presbytery jure devoluto, shall not fall under the operation of the regulations in this and the relative Act of Assembly, but shall be proceeded in according to the general laws of the Church applicable to such cases." Here, therefore, the Church court nominates, examines, and inducts without the possibility of any other party interfering. This is the most absolute and uncontrolled exercise of patronage which it is possible to conceive-a right more absolute and more uncontrollable than any patron ever pretended to possess, or attempted to enforce-far more absolute and far more uncontrollable than that exercise of patronage which the Church declared to be so intolerable a grievance as to demand the harsh and sweeping remedy of the Veto law. It is certainly not a little curious to observe, "that while the Veto is a wall of brass against the patron, it is a web of gossamer against the presbytery.' "We are told it is a fundamental law of the Church, that no minister shall be intruded into a parish who is unacceptable, from any cause, to a majority of the male heads of families. For the vindication of this principle we have already seen what the Church has done, and what she is yet prepared both to do and to suffer. The violation of this principle, even in a single instance, is looked upon as a most serious calamity-the omission by a presbytery, upon any presentation by a lay patron, to ascertain whether a majority of the congregation dissent, or the refusal to give effect to
their dissent, is described as a cowardly and inexcusable abandonment of the Church's duty to the people. And yet, in those cases where all power comes to be vested in the presbyterywhere the Veto Act might be carried into the fullest operation without interfering with the civil rights of any patron-where they themselves are the patrons, they will not even listen to the people's voice, they will not deign to enquire whether their presentee be acceptable or no, or whether a majority of the male heads of families do not object to his induction. They are to proceed, forsooth," according to the general laws of the Church." Is the fundamental law of non-intrusion not one of the "general laws of the Church?" Has the General Assembly not distinctly pledged itself to the maintenance of this proposition, that giving effect to the unexplained dissent of the congregation is not only war ranted but enjoined by the laws of the Church? But the laws of the Churchthe fundamental principle of non-intrusion-the interests of the peoplethe Church's consistency, and every thing else, must be sacrificed rather than interfere, in the slightest degree, with the uncontrolled exercise by the presbytery of that patronage which, so long as it remained in other hands, was denounced as inexpedient, immoral, unscriptural, tyrannical. This is the most unaccountable inconsistency, the most impolitic and useless deceit; for the congregations of the Church and the people at large, cannot fail to pierce the thin veil which is intended to hide the workings of clerical ambition.
But we have done. Our warnings and our remonstrances will probably have but little influence with those who seem to have assumed to themselves the lead in all cases in the General Assembly; and yet we would once more earnestly entreat them to pause, and for a moment to consider the condition of the Church. They have resolved to go to Parliament. But have they considered in what tone they are to address the Legislature-what it is that they propose to ask, and on what conditions? An acute observer has said, "that if we cannot obtain every vain thing we ask, our next business
* Lord Corehouse's Speech, Robertson's Auchterarder Case, vol. ii. p. 231.
is to take pet at the refusal."* Are they altogether sure that their present course has not been adopted in some such spirit as this, and therefore without proper deliberation? If it be not so-if they will not avail themselves of this apology-we say without hesitation that they have been guilty of the most unaccountable rashness and absurdity, and that they will too soon be made to understand the indecorous and mischievous position in which they have placed themselves and the
In approaching Parliament, they have either given up the claim to independent jurisdiction, or they have not. If they are prepared to abandon this high ground, and to acknowledge the supremacy of the civil court in the interpretation of statutes, they may no doubt obtain the abolition or modification of the law of patronage, provided they can make out a sufficient case to justify the measure. But then this would be at once admitting their error, and sacrificing their boasted independence-it would be in effect an ac knowledgment that they had pertinaciously and dishonestly maintained a doctrine which now they cannot justify to Parliament or to themselves-it would be a late and ungracious submission to the civil power, but a submission which would bind them for ever. They could never again be heard to question the power of the Court of Session to define and enforce the duties imposed on presbyteries by statute: nay, their new Act of Parliament, the reward of their submission, would necessarily be subject to the construction of that Court-the charter, which they had sacrificed their theoretical independence to obtain, would not render them practically one whit more free. And then, what becomes of the case of Mr Young and his intrusion into the parish of Auchterarder? They must proceed to intrude him, for they would then have admitted that his exclusion was illegal. But, on the other hand, if they still maintain their claim to independent jurisdiction, and contend that, the interference of the Court of Ses sion being unwarranted by the constitution, its judgment is an absolute nullity-in this case they cannot, of
NO. CCXC. VOL. XLVI,
course, ask Parliament to repeal the existing law, because they say it is already sufficient for them, and they must therefore demand a declaratory enactment. Now, to ask Parliament to declare that a court of law is mistaken in its interpretation of statute, is to make Parliament a court of appeal-it is to confound the legislative function (jus dare) with the judicial (jus dicere)-an anomaly in constitutional law obvious to any schoolboy. They would be asking Parliament to reverse the judgment of the House of Lords, the Court of last resort asking the House of Lords, as a branch of the legislature, to declare that it had committed ini. quity in its judicial capacity. It is easier to conceive than describe the reception which such a proposal would inevitably and most deservedly meet with in that august assembly-the calm and dignified rebuke from the Woolsackthe withering scorn of Lord Brougham or Lord Lyndhurst-the sorrowing, commiserating, but conscientious and distinct negative of the Church's best friends, Lord Haddington and Lord Aberdeen-the manly and overwhelming denunciation, by the Duke of Wellington, of those whom he would not scruple to brand as lawbreakers and rebels. Is this a spectacle which the Church would wish to realize? Is the bare risk, the possibility of such a result, not enough to make the rashest and most reckless pause? But suppose that even this hostility might be disarmed, and this difficulty surmounted-suppose the House of Lords calmly to listen to the insolent plea, that as a court of law they have committed error, what is the nature of the statute which the Church must then obtain? To effect the avowed object of the Church, it must be different from every other in the Statute Book-it must not be subject to the interpretation of the civil court; the same law which recognises the propriety of the Church's present attitude of resistance, must constitute Church Courts their own interpreters of statutes, and must arm them with secular power to resist the encroachments of co-ordinate, or rather of what would then be rival jurisdictions. What the Church demands is not a repeal or alteration of
* Sir Roger L'Estrange.
the law of patronage, but a fundamental and destructive change in the British constitution.
We are members of the Church of Scotland, not merely from the influence of education and from habit, but also from a sincere conviction that it is in all respects the Church best adapted to the country and to the people of Scotland; above all, because we know that it has been the instrument, under Providence, by which the cause of morality and religion has been steadily and efficiently promoted; and because we believe that the eminent character which attaches to Scotland and to Scotchmen, is mainly attributable to the purity of the Church's doctrine, the zeal of her ministers, and the wisdom of her ecclesiastical polity. But we cannot forget that the prosperity and the glory of the Church has been advanced and matured under a system of government which it is the object of modern Churchmen to alter or to destroy. The law of patronage has ever formed a component part of the constitution
of that Church which we admire and reverence. We deprecate unnecessary change; and we refuse to yield to empty declamation, where there is no attempt to convince us by reasoning. Even if the demands of the present race of Churchmen were admittedly conducive to the welfare of the Establishment, and to the advancement of its influence and its usefulness, it is still possible that the prosperity or the agrandizement of the Church might be purchased at too high a price. But we record our opinions on this subject, chiefly because we are persuaded, that the law which the Church is now engaged in maintaining and defending, is unconstitutional and revolutionary in its tendency; subver. sive of the principles of a church establishment; ruinous to the character of the clergy, both individually and as a body; most pernicious in its influence on the habits and feelings of the people, whose interests it professes to advance; and, by necessary consequence, destructive of the national character.
"And dost thou still, O King! rejoice To think how then the Roman died, Who, trusting thine imperial voice, For life, for all on thee relied?
"'Twas said, but sooth it cannot be, That Otho's lips unfaltering swore The Roman state should still be free, It's consul ne'er be perill'd more."
"By Peter! truly thus they say," The lithe Italian subtly thought; "Our German wit could never play With arms by Latin cunning wrought.
"Thou needs must praise the shrewd device
That wiled him down from Hadrian's mole.
The Pope absolved me at the price
"Not soon shall Rome of freedom speak,
And scorn our distant German crown;
"Corroding grief and madd'ning shame
Are still the fiends that goad my life;
"Full soon thy weakness, King! will But 'twill not blot Crescentius' fame, If men record his hapless wife.