said, he had hoped that the noble Earl would have been prepared to have proposed some alteration in the bill, but he had given no notice of any such intention. The vote of the House of Commons that a pound note was worth twenty shillings, was nothing to the declaration of the bill as to what was the law of Scotland. There was no authority for such a declaration, and it was only founded on private letters to the Home Secretary from two out of the thirteen judges of the Court of Session—a most irregular and unconstitutional mode of proceeding. The noble Earl had certainly the power to proceed without making any alteration, and might reject the amendment he now proposed; but it would be a very violent and arbitrary proceeding to reject it. He believed if the opinions of all the judges of the Court of Session were taken, that the two judges in question would be found in a very small minority. if the noble Earl did not consent to his amendment, he trusted the noble Earl would, at a future stage of the bill, add a clause to reverse the decision of the House of Lords in the Auchterarder case, or at all events, give their Lordships the opportunity of re-hearing it. As the bill now stood, there was unlimited power of making objections upon any grounds, spiritual or not, as caprice or prejudice might suggest and the Presbytery think fit. He would propose an amendment in the following words, to be inserted in the clause giving the power to make objections against the presentee;—Such objection to be of a spiritual nature, or founded upon some physical defects, disqualifying the presentee for the due discharge of his duty in the parish.
§ The Earl of Aberdeen
thought it right again to deny, in the most positive manner, that he had any intention, or that any person with whom he had had com- 535 munication on the subject, had the slightest intention of impugning the judgment in the Auchterarder case. No such imagining had been entertained by any one. Quite the reverse. But when the noble and learned Lord pronounced judgment, he made an elaborate and learned speech to which he had listened with great satisfaction and much advantage, and if it were contended that every argument and illustration put forth in that speech was of equal validity, and was to be assented to with equal implicitness as the judgment itself, he must admit, he was not entirely prepared to admit that doctrine. Acquiescing completely in the judgment pronounced, he was constrained to add, that all the statements made by the noble and learned Lord when pronouncing it, could not be assented to quite as implicitly. But when it was said that this was treating the House with disrespect, and showing a disposition to disturb the Auchterarder case, he must say, he should like to know when that discovery was first made. He had brought this bill into the House three years ago; it was then greatly debated, and strongly opposed by the noble and learned Lord opposite, then on the Woolsack: but if that noble Lord, then the first magistrate in the country, had then thought that the bill was a disparagement of his judgment, and that of their Lordships, would he not have remonstrated, and urged some such objection? But the noble and learned Lord had never said, that there was any contempt towards that judgment, or towards their Lordships. The discovery, therefore, had taken him completely by surprise, and after the debates that had taken place upon the bill, when the second reading was carried by a large majority, to hear it now stated that they were insulting the House caused him much astonishment. No such intention was entertained, or ought to be inferred from what had taken place. In answer to an observation made the other night by a noble Lord opposite, he had to say, that he had no objection to the clauses following clause 1 being made enacting clauses, but in so consenting he did not understand that he was enacting any new law, because he believed such to be the law already, although he admitted it was a doubtful matter. When the noble and learned Lord (Lord Campbell) Spoke of the opinions of the two judges, he (the Earl of Aberdeen) wished that 536 noble and learned Lord to understand that the proposition was not founded upon the private opinions of those judges, but the public judgments and speeches of the judges in the case. It was true, that for his own satisfaction, he (the Earl of Aberdeen) had consulted two learned Lords in Scotland on the subject, and had had the satisfaction of receiving their opinion. But had not the noble and learned Lord opposite himself followed the same course? Had he not, the other day, consulted the judges of Scotland with respect to the bill before the House? With all the respect which he entertained for the noble and learned Lords opposite, he must contend, that if the science of law were not altogether a farce, the judges of Scotland must be supposed to be more familiar with their own law than those noble and learned Lords. And that he said without the slightest disrespect towards them. The noble and learned Lord proposed that the objections should be of a spiritual nature, or should relate to physical defects disqualifying the presentee from discharging his duties, and had contended that those should comprise all the objections to which effect ought to be given; and the noble and learned Lord had referred to the canon law in confirmation of his doctrine. But it should be observed that the canon law had never had any great weight in Scotland, and that since the Reformation its influence had been every day diminishing. The canon law at the present day was now rather referred to as a matter of antiquarian curiosity, or for the purposes of illustration, than for practical purposes. The bill, moreover, provided for some objections not embraced in the canon law. The objection mentioned by Lord Corehouse, that a man was too much engaged in secular pursuits, was one unknown to the canon law. But that was a case of which the Presbytery must judge; the objection might be a very proper one, as in case a presentee might have to stand all day long, behind a counter, engaged in trade, or where deeply engaged in scientific pursuits; these were objections that he should say would be very properly sustained by a Presbytery. He denied that physical defects were alone in question, as embracing the whole range of objections on which the Presbytery were to give their judgment. Objections, however, which had not reference to ministerial gifts and qualifications could not be sus- 537 tained by the Presbytery. It was quite sufficient to this end to prescribe that all objections brought against the appointment of a particular minister to a particular parish should have reference to these subjects. He had no doubt whatever that it had been invariably the practice, from the earliest ages of the Church, that such objections should be made. This was stated over and again by the learned judges who pronounced their opinions on the Auchterarder case, of whom Lord Cunningham was the only one who said, that objections must be confined to the life, literature, and doctrines of a presentee. The authorities which had been quoted against this view of the subject, such as the book called "Regia Majestas" and Balfour, who wrote just at the period of the Reformation, had reference to the practice of the Catholic church, and not to that of the Presbyterian, which alone had given to the people power of objection. He thought, therefore, that there was no necessity for the limitation proposed by the amendment of the noble and learned Lord. It was already provided that the objections should have respect to the ministerial gifts and qualities of the presentee. That was a sufficient description of the nature of the objections, and a subsequent clause provided that if they had not respect to the ministerial gifts, or were founded on false or frivolous grounds, the presbytery should be bound to repel them. He must beg, therefore, to oppose the insertion of the words.
rose to state the reasons which made it impossible for him to agree to the substance, and, above all, to the framing of this measure. If he were to do that—if he were not to appeal to their Lordships, and throw himself on them for protection against it, he should feel that he forfeited every claim to respect hereafter in his judicial capacity, and that he should be as unworthy as unfit to exercise those high judicial functions which, by the favour of his Sovereign, he was clothed with, and which, by the kind indulgence of their Lordships, he had hitherto been enabled to perform. Their Lordships had not often been asked to sanction—few had been bold enough to ask them to support or countenance a measure which, however intended, had the immediate, direct, inevitable tendency of shaking to its foun- 538 dation the ordinary administration of justice in the courts of this country. He did not blame his noble Friend opposite, he did not suppose for one moment that his noble Friend, of all men living, would countenance a measure of this kind, if he understood it, if he was a judge of it, if he was of professional and judicial habits, like those who were the subjects and victims of the measure. It was because his noble Friend, and some few of whom he might have consulted, were ignorant of those feelings, and did not sympathize with the judges, that he had been induced to countenance it. The case, which had led to such important consequences, came up from the Court of Session, and was argued by his noble and learned Friend near him, as Attorney-general, on the part of the respondents, in favour of the judges in the court below. His noble Friend entirely agreed with him as to the grounds of the decision given, and the bearing of the bill on those grounds. After hearing the case fully argued, the Peers, who had heard it, separated during the Easter vacation, and on returning they found that, without any communication with each other, and after fully considering the whole case, each had come to the same decision, and, as it happened, on the very same grounds. Judgment to the same effect was given by his noble and learned Friend in writing, and by himself not in writing, on the previous day. It was enough for him and his noble and learned Friends to say that the grounds they took, and the reasons they gave for their judgment, were impugned by the declaration of the bill. His noble Friend (the Earl of Aberdeen) said he was not bound by anything more than the judgment. Now he could not help thinking that this was not a very decorous nor even a very civil mode of treating a solemn judgment, or he might say, "You may be right in your conclusion, but you were perfectly wrong in almost every argument which you gave, by which you were conducted to that conclusion." He asked as a judicial officer, what right had any man to tell him, that of three reasons one was perfectly absurd, though the others were sufficient to support the judgment? It was said this would be an obiter dictum. If it was found there was any superfluous reason in the judgment, it was held to be an obiter dictum, even though the others were sufficient to support the judgment.
539 To what a strange consequence would this doctrine lead. There were two reasons. A and B, for a judgment. One now might rely on A; A would stand without B; therefore B would be an obiter dictum. Another man might come and say, I rely on reason B; therefore A would become an obiter dictum. That was absolutely the inevitable consequence of this strange inevitable doctrine of what was to be considerered an obiter dictum. The true application of the phrase was a thing immaterial to the matter at issue, immaterial to the issue joined in law, which might be out or in, without causing any difference in the judgment. His noble Friend had referred to the opinion of the Scottish judges in deciding the case, and said to the law Peers, "You must be wrong in that reason of yours, because the Scottish judges say so and so." He confessed he was quite taken by surprise with this mode of argument; and here he must claim the attention of his noble and learned Friend opposite, as well as of his noble and learned Friend the Chief Justice of the Queen's Bench, who must suppose that all of a sudden, by some singular state legerdemain, there had been a reversal of functions and positions, that the judges of appeal had become the court below, and the court below the judges of appeal. He saw his noble and learned Friend was a little alarmed at what might happen when he was sitting in error on appeals from the Court of Exchequer or Common Pleas, or the quarter sessions. His noble and learned Friend gave his judgment; but what would be his surprise if he were told a week afterwards by one of the counsel, "Your judgment is an exceedingly good one; but the reason is not worth a straw, because we have had from the Chairman of the Quarter Sessions at Lancaster, a strong opinion, in which several other worthy magistrates coincided, that there was no occasion for giving it at all, for the law of Lancaster is totally different?" [Lord Denman: " Without hearing it argued, after it had been argued here."] Exactly so. A judge of appeal, when a cause was before him, might take one of three courses; he might either reverse the decision of the court below, or affirm it for reasons given by that court, or for totally different reasons. The law of England was made up of the reasons of judges of appeal, as well as of their decisions. If their Lordships thought 540 they could with impunity to the law strike out all the reasons on which a judgment had been given, or any of them, they were most fatally deceived, and would be obliged to strike out nine parts in ten of all the judgments which composed the law of England as it at present stands. His noble Friend opposite said— Far be it from me to intend any insult to the court, or to impeach its authority." Was it no impeachment to tell them that they did not know what they were about? What would be thought of a man who came up to another and gave him a slap on the face, saying, "Insult, or outrage, or disrespect, or the slightest incivility is the very last thing I thought of; I merely intended to get rid of a little irritation, or give amusement to some bystanders in the Court of Session in Scotland, who will be very much pleased, but as for insult or outrage, it is the very last thing which could have entered into my head?" He looked to what a man did rather than to what he intended. He was told that all the Scottish judges held a different opinion from his on the point in question. He maintained that they all, without exception, held the same opinion, that there was no difference whatever between them, and he had examined their judgments, in conjunction with his noble Friend, with a view to discover whether it were so. It was no argument at all to say that his (Lord Brougham's) reasons were wrong, and theirs right, because they said they were right. Their opinions were to be ' judged of by their Lordships—they were the parties who came before the House for judgment; that House was to be listened to, and not the court below. His noble Friend opposite must be aware that Lord Corehouse had been grossly misrepresented on the present question. That learned judge was quoted as having said to a noble Baron in Scotland that he entirely approved of this bill. He had received a letter from Lord Corehouse on the subject, but if it contained any approbation of this bill he had not been able to discover it. A very cursory perusal had, on the contrary, enabled him to discover that his learned and revered Friend decidedly disapproved of the bill, and considered it, as he expressed himself in a letter which he had subsequently received, as a distinct transfer of the right of patronage from the patrons to the kirk courts. The opinion which his noble 541 Friend quoted from Lord Corehouse, was delivered at a time when that learned Lord was incapable of bending his mind to the consideration of the question. But his opinion at present distinctly coincided with that which was attempted to be stigmatised by the unprecedented declaration of the bill. The noble Earl said that the Auchterarder decision confined the objections to "life, literature, and morals;" without including incapacity for the duties of a Highland parish, a weak voice, and other defects. Why, it assumed these: did any man doubt that if a man were deaf, dumb, and blind, he could not be appointed? Such qualifications as those the noble Earl enumerated, were assumed just as much as it was assumed that the minister was a living man, and not a corpse. He maintained that the Scotch judges supported his view of the question. But suppose they did not—what would in future happen, when their Lordships and the Scotch judges differed? Some one of the latter—some connection or friend of the minister, would write and say, "Oh, don't allow such a law to pass; 'tis wrong law;" your English judges don't understand our law, and then straightway, on this representation, the minister must introduce a bill, declaring the law, as the Scotch judges in the first instance pronounced it, and not as their Lordships decided, sitting on the judgment of the Scotch judges, as a court of appeal and correction. He did not know where this would stop; but he would tell them one consequence of it. This law might be a triumph to the Scotch judges; it might be a partial and temporary victory over their Lordships' House, as a court of appeal; it might be a step taken in the direction which some men were thoughtless and senseless and vain enough (if vanity was ever found hid under the ermine) to desire to bring about—he meant making the Court of Session supreme, and interfering with the appellate jurisdiction of the High Court of Parliament. But he could tell those Scotch judges, and those friends of theirs who were legislating under their direction, that in consequence of such acts as that now before them, they would have judgments pronounced in that House, after full hearing and great deliberation, resting on the authority and power of the House, not stating one argument or reason of those on which the judgment of the court below was affirmed or reversed; 542 never entering on those grounds which his noble Friend called obiter dicta, but which he called the most valuable part of the proceedings. He did not speak without precedent for such a change. For thirty-five years the courts of law on questions submitted to them by Chancery, certified their decisions without stating the grounds of them; and it was only within the last year and a half that they reverted to the old practice of arguing the case on the bench, having, in the first instance, departed from it on account of the manner in which their judgments were treated. But what were they about to tell the people of Scotland? That their decision was a wrong one? "Oh no," said his no-We Friend; "God forbid that 1 should impugn the Auchterarder judgment." But did his noble Friend suppose that the people of Scotland would not see through the fallacy--the folly (lie spoke it with great respect) of such a line of argument? more especially, when they saw the two judges who pronounced that judgment stand up in their places and say that this bill subverted their judgment, and that their judgment and this bill could not stand together? And what would the parties to the case say? The presbytery of Auchterarder would exclaim, "Oh, dear, we never dreamed of this. Parliament has laid down totally wrong laws, if the noble foreign Secretary and those who advise him in Edinburgh, would only have let out what he meant to do, the noble and learned Lords, who gave the decision, would have unhesitatingly given a contrary judgment." It would be most monstrous if they passed a declaratory act of this kind, and yet did not introduce any clause to say that the Auchterarder case should not be re-heard and re-determined. Were their Lordships' prepared for that? He should answer for them, they were not; but they thought to get out of the difficulty by the quibbling obstruction that the reasons of the judgment only were impugned—a course repugnant to law, common sense, and ordinary consistency. The consequence of thus acting must be to abandon all hopes of repressing and extinguishing that half political, half religious flame, which the Auchterarder decision was calculated to put down. His noble Friend had quoted the other night the opinion of the Justice Clerk. But in 1839 Mr. Hope addressed a letter, very learned and very long, to 543 a noble and learned Friend of his. Mr. Hope, in that letter, stated that the main provisions of the proposed bill of his noble Friend were suggested by the non-intrusion committee of the assembly. Mr. Hope then showed in detail that his noble Friend's proposal went to overthrow the establishment. He also said, that it was most alarming, and added an epithet which he should wish to avoid, and which, coming from a Friend, was most extraordinary. He (et tu, Brute) said his noble Friend's proposal was "most insidious." His noble Friend said, that the whole question decided in the Auchterarder case was, whether a party should be admitted to a trial. But without meaning any offence his noble Friend must permit him to say, that in this he exhibited the grossest ignorance, the most extraordinary misinformation. The decision, no doubt, was, that the presbytery should admit Mr. Young to a trial; but the whole question turned on this, whether the Veto Act was lawful or not. He had no fear of this bill becoming law, but he had that esprit du corps which made him wish that they should attach no stigma to their own judicial brethren. One of the wisest men, Lord Bacon, had said, that a popular judge was an odious thing. He had no great fear of "popular judges" in our times; but a restless, meddling, intriguing judge, was equally to be guarded against: a man who was not satisfied to keep within the bounds of his own jurisdiction, and one who would be much better employed in endeavouring to clear the mists which obstruct his legal functions, than to raise those mists in minds which he hoped were not open to such an influence. Supposing the declaratory words were struck out, and that it was made enactive, he still thought it an improper measure, not calculated to keep men in the Church, or to reclaim those who had seceded. He had the opinions of several friends in support of his view. One said, that Dr. Cunningham had declared, at Exeter-hall, that this bill would not induce five men to remain in the Church who were desirous to leave it. The minister of one of the largest parishes in Scotland also stated, that the only party gratified by this bill was "the forty," and there were only three of them in his parish, and in the last general assembly they could only muster fifteen. He should say, in conclusion, that everything that related to the 544 pure administration of justice, everything that tended to keep the judges in a position of authority and respect, without which their judicial functions would cease to be more than a name; everything which tended to bind together the members of the highest judicial body (and they could only continue to perform their duties profitably to the subject, and comfortably to themselves, while that House protected them)—everything that tended to knit the connection closer and closer, was of the highest importance to the character of the House, of the constitution, and ultimately to the stability of the British Government.
The Lord Chancellor
fully agreed that those noble and learned Lords should be protected who take on themselves the laborious task of presiding over their Lordships' judicial proceedings. He was not present when the first judgment on the Auchterarder case was pronounced; but it was his duty, after he came to his present situation, to consider it when the second case was submitted. No one who had read that judgment but would say, that it was founded upon most solid and unimpeachable grounds—grounds upon which, in his opinion, it would be impossible to arrive at any other decision. The nature of that judgment was this: Lord Kinnoul presented Mr. Young to the benefice, presenting him in the first instance to the presbytery, in order that they might make trial of his qualifications. They refused him, and upon what ground? Because the majority of the congregation were dissatisfied at his appointment. This was the ground of rejection, and this ground the court below declared to be illegal, and against the statute of Anne. When the case came before this House, the judgment was confirmed, in the terms in which it had been delivered. But when he (Lord Lyndhurst) approved of this judgment, was he bound to say that the question of the qualification of parties was one which was to be interdicted to congregations to inquire into? No such statement had ever been made by him. The question was one which entered necessarily into the inquiry in the court below. The question of qualification came directly in issue, both in the court below and in the appeal to this House. So much so, that the noble and learned Lord who then sat on the woolsack commenced his judgment by inquiring what was the nature of a 545 qualification. He (Lord Lyndhurst) had not heard that judgment, but he had read it, and the authorities which the noble and learned Lord cited in the course of it, and he felt bound to say with regard to what was due to the station which he now filled, and with regard to his character as a lawyer, that he could not venture to pronounce a contrary opinion upon the matter of that judgment. He felt bound to say this as much for the character of him self and the noble Lords themselves, as for what was due to the judicial character of their Lordships' House. But the question now before their Lordships was of a far narrower description. This clause was not at variance, as it appeared to him, either with the judgment of his noble and learned Friend, or with any of the grounds cited by them in support of that decision. As far as related to the general question, there was, as he believed, only one point in issue in the question now before their Lordships, namely, as to the right of objecting, and not as to the right of deciding upon objections so made. The clause provided, thatWhen a patron presented a minister to the presbytery, the presbytery should appoint a day on which he should preach before the congregation, after which the congregation might make any objections they thought proper against his appointment, and that the presbytery should afterwards consider and cognosce on their objections.With respect to assigning the limits of objections which might be made,—what should prevail, and what should be neglected,—that was a matter which their Lordships were not deciding now; they were merely called upon to decide what he believed had been the law of Scotland of all times, that congregations had full liberty to make any objections they thought proper to the newly-presented minister, and that the presbytery should afterwards decide upon those objections. To draw an analogy, this was precisely the practice in a court of justice, where a plaintiff might make any claim he thought proper, founded upon any supposed facts, and upon any supposed view of law, and the court would then decide whether the facts were true, and if true, whether the law in their judgment applied to those facts, was in favour of the plaintiff's claim. There was nothing in the Auchterarder case contrary to the declaratory clause now before their Lordships. Moreover, 546 he might add, that the opinion of the judges of Scotland had been asked upon this question; the bill, lie believed, had been revised by the Lord Justice Clerk, and it might be considered in that respect almost as his bill. He believed that there was nothing unconstitutional or contrary to the usual practice in this proceeding. Their Lordships were aware that in this country judges were referred to when occasion required it, by their Lordships, and that bills were sometimes referred to them by her Majesty's Govern.. went, in order that they might be revised by them. Now, when this bill was laid before the learned judge, he stated it to be his deliberate opinion, that it was strictly conformable to the law of Scotland. In saying so, however, the learned judge never intended to contravene the judgment of the court of Parliament, in the Auchterarder case, nor the reasons upon which the noble and learned Lords who gave that judgment rested their decision. The learned president of the Court of Session had also read this bill, and declared that it was conformable to and consentaneous with the principles of the law of Scotland. Now, with these authorities before them, he would ask their Lordships whether they could have any apprehension that by adopting this clause they would be in the slightest degree contravening the law of Scotland, or casting the slightest slur upon anything which had fallen from the noble and learned Lords who delivered their judgment in this case? For his own part, if he considered that this clause in the slightest degree impeached the judgment of this House, or anything which had been said by the noble and learned Lords in delivering that judgment, he would not have supported it—but he spoke in support of it, because notwithstanding all the eloquence of his noble and learned Friends, he considered that there was nothing in it which militated against that judgment, or anything that was said in support of that decision.
asked if his noble and learned Friend was prepared to support the words "declared and enacted" in the next clause? [Lord Lyndhurst replied in the negative.] This statement of his noble and learned Friend at once exposed the anomalous character of the measure they were endeavouring to force upon the House—a measure declaring and enacting [a state of law as strange and unintelligible 547 as anything that could be found in the annals of Kamschatka; a law by which a certain authority could pass a judgment, but had not the power of carrying their judgment into execution and effect.
§ Lord Cottenham
thought it an extraordinary novelty, to have a bill which should be declaratory in its first clause, and not in its second clause. His noble and learned Friend had stated in a few words the inconvenience which must result from such a state of the law. But the noble Earl opposite, on a former occasion, described his bill as a declaratory measure, and distinctly called upon their Lordships to adopt it, and reverse their decision in the Auchterarder case, as bad law. But the noble and learned Lord, who had just spoken, said, that he approved of and supported the judgment in that case, as well as the reasons upon which it was grounded. Their Lordships were thus called upon, in adopting this bill, to declare that to be bad law which the Lord Chancellor said was good law. But what was the authority upon which they were called upon to declare that the law, of their Lordships' own decision, in the case of Auchterarder was bad? It was a good law in the present state of the case, by every authority that could declare the law; and to what authority were they to have recourse in case they wished to reverse the law so declared, except to the noble Earl opposite, who had declared that he was not competent to form an opinion on the subject? Were their Lordships ever called upon to decide in so extraordinary a position of affairs? All that their Lordships had to go upon, as guides to their judgment, were certain letters from learned persons in Scotland, addressed to the noble Earl, the whole of which, however, they had not seen. He had great respect for the learned persons who had written those letters, but their Lordships, he believed, were not accustomed to pay much deference to letters from any persons. The noble Earl had read one passage from what the learned Dean of the Faculty said relative to the Auchterarder case. The Dean of the Faculty, speaking of the Veto law being considered in the light of a declaratory act, thus expressed himself to the following effect:—Conceive the absurdity of putting forth this measure as a declaratory act, when it was found that the Church would require new ma- 548 chinery and powers for the purpose of carrying them into effect; it was ludicrous to talk of a fundamental law as being in existence, if there did not exist the means of carrying it into effect; it could not be that a fundamental law had existed so long, and required us now to devise the means of enforcing it.The words of the learned Dean of the Faculty were well worthy of the attention of the noble Earl, because they applied, in every point, to the bill of the noble Earl. When next the noble Earl corresponded with this learned person in reference to his bill, he would suggest that the noble Earl should refer him to page 151 of his own decision upon the Auchterarder case, which showed most convincingly the absurdity of pretending to make a declaratory law, which required new provisions and machinery for carrying it into effect. The noble and learned Lord read various passages from the hill which he said declared the law to be directly contrary to what it had always been, and as it had been decided in the Auchterarder case? What was the nature of the proceedings in the Auchterarder case? The Minister was there rejected before he had been taken on trial. If this was clear, and he would ask, where anti when the noble Earl found it so? [A noble Lord, in the act of "1690."] He knew that the law was such in 1690, but that was repealed by the act of 1711. Now this fact came precisely as an illustration of his argument; for the noble Earl pretended by a declaratory bill to revive the law which had been repealed by the act of 1711, and by the same declaratory bill to repeal an existing statute. So much for the declaratory clause to which his noble and learned Friend said there could be no possible objection. The noble Earl said, that his noble Friend and himself were the cause of the secession, and that it was to be attributed to their erroneous opinion. If that were the case, how happened it that the noble Earl had not before now brought in a declaratory act to show that theirs was bad law? If the noble Earl had done that, he might have saved 500 Ministers from the painful necessity of retiring from the exercise of their sacred functions. Why, he asked, had not the noble Earl, two years ago, brought forward his declaratory act, and thus prevented the schism that had taken place? Why did not the noble Earl, possessed as he was of all the powers of the Government, and with all 549 the advantages of office to aid him, bring in his bill to amend their bad law? The ground stated, he must say, by Dr. Chalmers, was infinitely absurd, and it could not be supposed that the noble Earl could lay any stress on such an opinion. His noble and learned Friend had so clearly defined what were the grounds of the decision in the Auchterarder case, that no one now could entertain a doubt on the subject. Their Lordships had then, the opinion of his noble and learned Friend, they had his own, they had that of the Lord High Chancellor that they were correct in their decision, and, on the other side, what was relied upon? the un produced letter of a Scotch judge. Then there was this act directly in the face of that decision. The Scotch Church claimed the unbounded right to decide every case. "Suitableness" was the ground on which they were to decide. A man was not suitable who was objected to by a majority of the parish; and by the Veto Act they put the fact in the course of being ascertained. They found that the Church had always struggled for it but various acts of Parliament had retained the right of the patrons. It ought to be recollected that Presbyterianism was not introduced into Scotland in a pure form. It was introduced connected with patronage. But it was said that this was the Dean of Faculty's Bill. He was glad of it; for he had the decided and distinct authority of the Dean of Faculty against it, in every way—he hail declared that the Presbytery was the last place wherein the patronage ought to be. If it were said by the noble Earl that the bill would not have that effect, he asked what objection there could be to the amendments proposed by his noble Friend? The noble Earl would not accept these amendments; but contended for the unlimited power of the Presbytery. The first section permitted the congregation to make any objection, and those objections were to be cognosced and decided upon by the Presbytery. It was said that this only gave to the Scotch a right which they always had exercised —the right of grumbling. But surely a declaratory act was not required for that purpose. It was not, however, a mere right to complain they were to have—it was to form the part of a proceeding which was to lead to a trial. By the second section, the Presbytery were enabled to regard all cases of suitableness—what would 550 suit the spiritual welfare of the people, and the character as well as the n umbers of those by whom an objection was made. How, he asked, was it possible to give a larger jurisdiction to the Presbytery? The third clause provided, that if the reasons were not well-founded, the Presbytery could reject them. If the rights of the presentees were to be protected—if the rights of the patrons were to be protected, the Presbytery must be told within what limits they were to act; and they must be prevented from exercising their powers when they ought not to exercise them. Why was this bill proposed? Was it to gratify the non-intrusionists? The non-intrusionists were struggling for what they considered the rights of the people, and not to give exclusive powers to the Church. Those who supported patronage objected to non-intrusion? They were asked to allay irritation by passing this law. What was to justify them in adopting this course; or what was the description of persons that they were to please? It was not to please those who supported patronage—it was not to please the non-intrusionists. No; but there were a certain set of non-intrusionists who did not like to succomb to patronage, and who did not like to give up their livings. He thought they were once forty in number, and now they were reduced to fifteen. The noble Earl once boasted of there being forty. He could make that boast no longer. These persons said—" We are non-intrusionists, and if you pass this bill, we shall keep our livings." This bill would secure them their livings; but the two great parties in the Church repudiated it. The non-intrusionists disapproved of it, and it would be strange indeed if the patrons supported it, or if they approved of a scheme which was inconsistent with patronage. The noble Earl's bill was, then, for the minority of forty, now reduced to fifteen—nay, not so much, for amongst those laymen were included. The bill was to be passed to preserve the benefices of a small number of persons. Was it, he asked, for such a purpose as this that the judicial character of that House ought to be impeached? For himself, individually, he cared as little as did his noble and learned Friend; but, then, the judicial character of that House was of immense importance to the country; particularly to Scotland. It was singular that hitherto, the decisions of that House, though made 551 by those not generally educated in the Scotch law, should have been looked up to by Scotch lawyers with great confidence. He was told by many persons that their decisions gave satisfaction, and were looked up to with respect by lawyers in Scotland. If that bill were to weaken the respect which the people of Scotland now entertained for the judgments of their Lordships, he should regret it very much. He believed that it would; and lie conceived, therefore, that the bill would be very injurious to the people of Scotland, and prejudicial to the authority of their Lordships' House. The noble and learned Lord then referred to the opinions delivered by the Lord President of the Court of Session, Lord Gillies, Lord Medwin, and other Lords of Session, to show that the majority of them, eight, had expressly given it as their opinion that the power of the Presbytery was limited by law as closely as he had contended for. As all the remaining clauses of the bill were enacting, he did not see how it was possible for the noble Earl to ask their Lordships to consent to the declaratory part of the bill, which would overturn a decision of their Lordships. It was impossible that their judgment on the Auchterarder case could stand with the first clause of that bill. If their Lordships did not mean to retract that judgment, he trusted their Lordships would remove that clause, which was declaratory in form, but, by overturning the law, was enacting in principle.
§ The Earl of Galloway
thought, that the noble and learned Lord was mistaken in saying that there was no ancient documents of authority analogous to this bill, for on looking into the early acts relating to the Scotch Church, he found that the rights of patrons to present, and of the Presbytery to examine and admit the presentee, were distinctly recognised. By the act of 1690, the patronage was restored in a limited form, and the people were called before the Presbyteries in a manner very similar to that prescribed in this bill to state their objections, and to have them cognosced. By the act of 1711 the presentation was restored to the present patrons; but in other respects the admission was to be in the same form.
interposed to explain, that the argument in favour of the Presbytery founded on the act of Anne was overruled by the judges in the Auchterar- 552 der case, otherwise the decision could not have stood. That act was a very inaccurately framed act, no doubt.
§ The Earl of Galloway
could not understand how this bill, which did riot give an unlimited power of objection to the people, while it distinctly declared, that the Presbytery should decide upon the validity of the objections, was inconsistent with the decision of the Auchterarder case. He had no fears as to the effect of the measure, for he believed, that there were sufficient checks against any mischievous result, and in that opinion he was supported by the highest authorities. It was a remarkable fact, that Dr. Chalmers in 1834, when this subject was under discussion corroborated the views this measure took of the question, the right of decision by the Presbytery over that of the people, declaring that he would not be a party to the delusion, that the Church would necessarily become more Christian in constitution, by becoming more popular; for while on the one hand there might be sometimes a graceless patron, or a graceless Presbytery, on the other hand, the appointment of a minister might fall into the hands of a graceless population. It might be thought, that the reference was rather to election of ministers; but if the power of unlimited rejection were given, it would be tantamount in the end to an election. There were, however, wholesome checks upon that power, for if the decision of the Presbytery, was not satisfactory, there was an appeal to the Synod, and from that again to the General Assembly. He had no apprehension, that the alteration would work unjustly to the patron, the people, or the presentee.
The Earl of Haddington
would not enter into the legal part of the question, which was quite unnecessary, after the speeche of the noble and learned Lord on the Woolsack. If noble and learned Lords opposite had thrown off that natural feeling they entertained with respect to their own judgment, by which he believed them to be actuated in some degree, they might have seen, from what his noble and learned Friend. had said, that after all this bill might be passed without any great invasion of the arguments upon which the decision of the Auchterarder case rested. He stated his own impression. The decision in that case declared the Veto Act to be illegal. Now, the Veto Act gave the 553 people the right to assume the power of the Church—the right to say, "This man shall not be our minister; he does not edify us, and we won't have him." The Presbytery might, according to the veto law, ask the people to be so good as to state their reasons. But the people might refuse, and the Presbytery were bound to submit. That was the law, which, if he understood the matter correctly, the judgment of their Lordships had declared to be incompetent to the Church of Scotland to make. He could not believe, that this bill would make any difference with regard to the Auchterarder case. He had heard with the greatest attention the judgment of the noble and learned Lord opposite; and the impression conveyed to his mind was, that after all there was no such great discrepancy as to justify the very great sensation created on the learned Bench opposite. He rested upon the law as stated by the Lord Chancellor. The noble and learned Lord who spoke last had adverted to the estimation in which the decisions of their Lordships were held in Scotland. No doubt great respect was felt in Scotland, both by the bench and the bar, and that the people of Scotland regard the appeal to Parliament as one of their dearest rights, and God forbid that they should be deprived of it, or that their well-founded respect for their Lordships judgment should be destroyed. But it must be admitted, that the appellate jurisdiction in this case was very peculiar. The judges were those who had practised at the English bar, who had studied English law, and imbibed prejudices in favour of their own law. In like manner, those whose judgments were appealed from had passed their lives in the study of their own law, and it could not be wondered at if they too were influenced by similar prejudices. With regard to the strong language applied to one of the judges of Scotland by the noble and learned Lord opposite. [Lord Brougham.—" I said judges."] The Lord Justice Clerk had been named by the noble and learned Lord. [Lord Brougham.—" I made a reference to his pamphlet, but he was not then on the Bench."] The Lord Justice Clerk had been adverted to in both capacities. It happened, that that learned person was a near relative, and very intimate friend of his. He had often conversed with him on the appellate jurisdiction of that House, and he could assure 554 their Lordships on his own knowledge, tha no man in Scotland more valued the appellate jurisdiction of that House than the Lord Justice Clerk. He had to apologise to their Lordships, and more especially to the noble and learned Lord opposite (Lord Brougham), who had burst upon him the other night like a legal tornado, and had said, that he would not condescend to argue a point of law with him, for having expressed his opinion on a legal question: in doing so he had stated what his impressions were on this question from his knowledge of his own country, and what would be the working of the bill. He had paid great attention to what had been said by noble and learned Lords on this subject, and he knew very well, that if once they began in a legal way to weigh words, which illiterate people called "special pleading," it was very difficult to find anything which might not be tortured into something exquisitely absurd, or exceedingly mischievous by that species of verbal criticism. He was reminded by it of once having seen a critique in the early days of the Edinburgh Review, when stinging articles were much in vogue, and when some person undertook to prove, that by the same mode of criticism the works of the greatest masters might be proved to be absurd. That critique took up the works of Mr. Milton, and proved the Paradise Lost—[Lord Brougham: " The Allegro."] He thought it was the Paradise Lost, but his noble Friend corrected him—and proved the Allegro absurd. The criticism of the noble and learned Lords on the third clause was of that description. The principle of the bill was, that the people should have the power to object, and the Presbytery should have the power to decide on their objections. The people ought not to have a minister forced on them not suited to their views. The noble Earl read the third clause of the bill to show that the bill was intended only to carry that object into effect. He contended, that the bill provided ample securities against any abuse of the power, either of the people or the Presbytery. If such precautions were not sufficient, applied to men of a sacred character, who were obliged to act on oath, and assign reasons for their decision, he knew not what security any enactments could provide for life or property. He was sure, if their Lordships examined the enacting clauses, they would find that ample pre- 555 cautions were taken to guard against the abuses of the powers of the Presbytery. It was absurd to suppose, that the delivery of one sermon could be a proper test of the fitness of a man to fill a cure, but if the presentee had been assistant in the parish for some years under the former minister, and the people having had such an opportunity of judging, should then determine, upon good cause stated, that they could not profit under that person's ministry, that would be a valid ground of objection. He considered the measure necessary to give peace to the unhappy Church. He was sorry to say, that an uncharitableness, and a bitterness of spirit bad been evinced by some persons, tending to keep alive that flame which it was the object of the bill to quench. They (the Government) had a great desire to settle this question in Scotland, and to restore peace to that country. They believed the bill was not open to the objections advanced by the noble Lord; but, on the contrary, that so far from tending to gratify only some fifteen or sixteen persons of a particular party, they believed the peaceable, moderate, and well disposed persons of the Church of Scotland, without reference to their party, would be pleased to accept the bill as calculated to allay the ferment that prevailed, and restore peace to the Church and to the country.
§ Lord Denman
said, it might be possible that this bill was the proper mode to settle the difference that prevailed in the church of Scotland; but if so, it should be stated truly for what it was, a new enactment, and not put forward as declaratory of a law which did not exist. All those who bad attended to the discussion on the point of law on the present and on the former evening, would believe, if the point were then argued for the first time, that the judgment given in that House was right. It was, therefore, well deserving of their Lordships' grave consideration, whether it was fitting to overrule, by a political majority, the declaration of the law by the highest tribunal of this country upon one of the most important questions that had ever been submitted to judicial decision. If the noble Lord would bring forward a proposition that the appellate jurisdiction of the House of Lords in Scotch cases ought to be done away with, it would be quite fitting to appeal to the authority of the Lord Justice Clerk 556 in favour of it: but not only did the whole people of Scotland place the utmost confidence in the decision of their Lordships' House generally upon Scotch law, but one of the reasons for that confidence in the decisions in this particular case was, that it was not the decision of Scotch lawyers—that it was not a decision given in the Scotch courts, in the very midst of the heats and turmoils and party ferments that prevailed in that country, but that it was a decision given in that atmosphere of calm discussion, there, in their Lordships' House, upon reasoning which would do honour to any judges that ever sat in any tribunal — there, with a full consideration of all and everything that could give weight or value to the arguments of the English bar, given as the decision of English peers upon a question of Scotch law. He had read that judgment with the most perfect confidence and satisfaction, and it was, he believed, in common with every judge in this country, without exception, beginning with the Lord High Chancellor, and ending with the humblest individual who exercised the judicial function, that he felt the utmost alarm at the course their Lordships seemed about to take. If that blow was to be struck at judicature, it was impossible to say what it might lead to. Why was a declaration of the law required at all? The only rational motive he could discover—and he confessed it was not a very respectful one to suggest—was, that they believed the law to be contrary to that which they declared it to be. If they believed the law to be what was stated in the bill, why not leave it to the proper tribunals to carry into effect? Why should their Lordships interpose by any legislative declaration whatever, which, if the law were as pronounced by the court was unnecessary, and if not, ought to be decided by a majority without hearing all the arguments that could be adduced at the bar of that (their Lordships') court? He could sympathise with the feelings which had actuated his noble and learned Friends; but that was a consideration of the least importance in the case; it was not only that members of the judicature would feel a want of self-respect in being so treated, but the rights of one set of persons were transferred into the hands of another. In relation to what had been said as to the value to be attached to the reasons with which the judgment was accompa- 557 nied, all he would say was, that the judgment itself was the practical power, but the reasons upon which it was founded, were the lights of the judgment itself. The judgment was pronounced and affirmed when it suited somebody to say, that the reasons were wrong, and a declaratory act was introduced to declare that to be law which was not law. What was the consequence? The transfer of property to other hands by that declaration? Was that tolerable? Was it decent? Was it a reasonable proceeding for a House of Parliament? Was that the way the rights of British subjects were to be disposed of? They were interfering with the rights of patrons, and those patrons had a right to be heard before anything was taken from them by a direct act of force. If the judges of Scotland were of the opinion that bad been stated, he would venture to say, that their Lordships would repent of the step they were taking, if they did not consult those judges; and if the bill proceeded further with the word "declare" upon it, he begged leave to give notice that he should move that the opinions of the Scotch judges be taken upon certain points to be submitted to them by their Lordships. He must decline, in a case of this description, to take the report of any one as to the opinion of the judges, or to accept the authority of a private letter written by any judge, even to a minister. Then that opinion would not be in any degree binding on their Lordships' judgment—they would be still acting in their judicial capacity—their judicial consciences would have to be convinced before declaring—they would have some reasonable foundation and fair material to decide whether truth would warrant them in making the declaration which the bill required at their hands. There was nothing so likely to produce mischief, and want of confidence in the law, and so calculated to encourage those who resisted the law, than to find that a contumacious standing out against that law had produced from their Lordships a declaration that the law was different to that which the judges had declared it to be.
§ The Earl of Aberdeen
disclaimed influence of political motives, and said, that looking to the state of the church, and of the people in Scotland, he had no hesitation in expressing his sincere conviction, that if some law of this description were 558 not passed, the church would be disestablished. In the whole course of his life, he had never been more convinced of the necessity of any legislative measure than he was of this. If the evil were not met by some remedy of the kind, it was impossible to foresee what mischiefs might ensue to the church and people of Scotland. He did not deny, that patronage was a right in Scotland as well as in England; but it had stood upon different grounds. In the old times, there was a great outcry against patronage, because it had been much abused; and it was said, that at the time of the Reformation, even grooms and lacqueys were inducted into benefices: Now, however, patronage was a trust. The patron was bound to find a man to minister faithfully to the eternal welfare of the people. For three years, this measure had been substantially before the House and the public, and from the first moment of its introduction, to the present hour, he had not received the slightest remonstance from any patron as to any interference with his rights. That was a fact highly creditable to the patrons of Scotland, and proved that they felt the first object of patronage was to provide for the spiritual welfare of the people.
said, the present bill was a revival of the Auchterarder case, and would sap the foundation of the judicial system. If the Church had a right to possess the power which this bill stated that she possessed, then the Church had a right to pass the Veto 'Act; and if so, then the decision in the Auchterarder case was wrong.
§ Their Lordships divided on the question that the words proposed by Lord Campbell be inserted. Contents 12; Not-Contents 42;—Majority 30.
moved a verbal amendment, the effect of which would be to make the clause enactive, instead of declaratory.
§ Their Lordships divided on the question that the words proposed to be left out, stand part of the question. Contents 38; Not-Contents 10:—Majority 28.
The Earl of Minto
objected to the bill, both as to its form and substance—as to its form, because, being a declaratory measure, he could not help viewing it as a stigma upon the appellate jurisdiction of that House; as to its substance, because it would transfer the whole patronage of the Church to the Presbytery; and if it 559 came to a question, whether the clergy or the people should hold that patronage, he could not help saying, that he thought it might be more safe to trust it to the people than the clergy. Ths noble Lord concluded by moving as a proviso at the end of the first clause, to the effect that the objections to the presentee must be supported by a majority of parishioners.
The Earl of Shaftesbury
said, that the amendment, if moved now, and rejected, would not appear upon the journals.
The Earl of Minto
said, that, finding the amendment would not appear upon the journals, if he moved it now, he would withdraw his amendment for the present.
§ The House resumed—Committee to sit again.
§ House adjourned.