HL Deb 02 May 1843 vol 68 cc1137-40
The Duke of Argyll

presented a petition from the Presbytery of Dumbarton, praying that some measure should be adopted for putting an end to the division which now existed in the Church of Scotland, and the continuance of which was likely to be productive of the greatest evils, without interfering with the acknowledged spiritual rights of the Church.

The Marquess of Breadalbane

said, he was deeply impressed with the great importance of the subject to which the petition that had been just presented by his noble Friend had reference. In his opinion the most irreparable mischief would result if this question were not amicably settled, if some concession were not made to the Church of Scotland with respect to those privileges which he conceived were justly demanded, and to which the Church of Scotland was entitled by the constitution of the country; although by the judgments of the law courts the rights of the Church were invaded and their claims declared not to be valid, yet by the constitution of the country a large body of the ministers of the Scotch Church conceived that they had a right to the privileges which they claimed. Therefore, he felt it to be a paramount duty to state to the House his earnest conviction that if some fitting concession were not made before the meeting of the General Assembly, a very large secession from the Established Church of Scotland would take place; not merely a secession of ministers, but of the Scotch population in general—a secession to the extent of 80 per cent. The number of ministers who would go out from the Establishment, if concession were not made, would not be less than 500, and amongst whom were to be found some of the most enlightened, the most pious, and the most zealous members of the Church of Scotland.

Lord Brougham

said, he had not intended to offer a single observation on this occasion, but he begged leave to express the utmost astonishment when he heard a Friend of the Constitution of this country—when he heard one so well known as a Friend of constitutional principles—as was his noble Friend behind him, get up in his place and state in Parliament that that which was declared to be law by the courts, and which in that House, the tribunal of last resort, was after the fullest and most attentive deliberation declared to be the law, was wrong,—that, notwithstanding such decision, there was something above the law, something contrary to the law thus laid down; and what was that? Why, it was the constitution of this country. So that they had now heard, for the first time, of two things being set in op position to each other that were usually supposed to be one and the same,—namely, the law of the land, and the constitution. To that party with which his noble Friend acted, with reference to this question in their Lordships' House, in which were men very respectable in name, but very moderate in number, he would leave it to reconcile this most extraordinary proposition.

The Marquess of Breadalbane

said, that he felt as great respect for the judgment of the courts of law as his noble and learned Friend could possibly feel; but, when they all knew that the interpretations of the courts of law on this subject had been various—when they were found to decide one way in one case, and another in another case—some doubt might be entertained as to the correctness of their decision. It was notorious that on this subject various decisions were given; and he would challenge his noble Friend, and would prove to him at the Bar, that decisions were given by the Court of Session, with respect to spiritual and civil matters connected with the Church, that were different from each other. He understood what was meant by the law, by the constitutional law of the country; but the Act of Union and the whole history of the Church of Scotland proved, that she had a constitution within herself for the management and control of her spiritual affairs, and the rights which she claimed under it had, he contended, been invaded.

Lord Brougham

said, he was ready to accept the challenge of his noble Friend. Why, that same challenge had been given by the appeal of the General Assembly to their Lordships' House against the decision of the Court of Session; and, day by day, it had been attempted, at their Lordships' Bar, to prove that former decisions had been in favour of the appellants. But the attempt was a complete failure—complete in every point and case. It was because their Lordships found, upon examination, that the former decisions were in conformity with the one appealed against, that they confirmed that decision, and dismissed the appeal. Their Lordships had thus declared the law to be against the claims of the Church; and was it now to be said, that the Church bad within herself a law and a constitution which was to act and have authority against the law of the land, thus solemnly laid down? Why, his noble Friend might as well summon his tenants at Taymouth Castle, and lay down a law with reference either to the land or the tenants, or to both, as against another body and declare that the law of Taymouth was to be superior to the law of the land quoad Taymouth. His noble Friend might as well argue thus as insist, that the Church had a constitution within her self, and a law for herself, superior to the law of the land. He hoped that he should never hear of any person advocating such a constitution or such a law.

Lord Cottenham

said, that, in the case of appeal which had been prosecuted, their Lordships had no difficulty in deciding what the law was. Their Lordships had examined all the cases that bore upon the question; and, on reference to them, there seemed to be no difficulty in declaring what the law really was. If there were other cases of which the House was ignorant, he should like to be informed of them.

The Earl of Aberdeen

was afraid, if he had not been able to give his noble Friend (the Marquess of Breadalbane) satisfaction by what had already taken place on this subject, that it would be out of his power to afford him satisfaction now. He bad on a former occasion made, as he conceived, a statement which embraced as much concession as his noble Friend could fairly desire or expect. He spoke then, not as an individual, but as representing the sentiments of her Majesty's Government; and if his noble Friend was not satisfied on that occasion with the amount of concession which he then offered and proclaimed, and which her Majesty's Government was ready, when the proper time arrived, to embody in a legislative measure, he certainly despaired of giving his noble Friend any satisfaction. He was not disposed to enter into the various important matters that had been opened by his noble Friend on this question; but he desired, and he should be happy again to state—and to state more explicitly, if necessary—the opinion of her Majesty's Government on the subject. At present, however, on the mere presentation of a petition, and with other important business before the House, he thought it would be improper to take up their Lordships' time by entering further into the subject.

Lord Campbell

approved of what had fallen from the noble Earl, but was inclined to think that he had conceded rather too much. He should not be discharging his duty if he did not concur in the protest against the doctrine of the noble Marquess behind him with respect to the distinction between the decision of a court of law and the constitution of Great Britain. A decision of a court of law was either right or wrong—right if according to law, wrong if contrary to law; but it could not be according to law, and yet contrary to the constitution. The Executive might act objectionably; but it was impossible that a court of law, proceeding according to law, could decide contrary to the constitution.

The Marquess of Breadalbane

said, that under the constitution, as guaranteed by the Act of Union, and recognized by various statutes, the Church of Scotland had her own ecclesiastical courts to regulate her spiritual concerns. Now, he contended, that her lawful jurisdiction as to spiritual matters had been invaded by the courts of law. This, he would say, was highly unconstitutional. The spiritual courts of the Presbyterian Kirk were as much part of the constitution as any court of judicature in the country.

Petition laid on the Table.

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