SCOTLAND.
The " Cardross case," which has attracted so much attention in Scotland, came before the Court of Session for judgment on the 23d. Some of our readers may remember the particulars; but others may not, and we borrow a recapitulation of them from a contemporary. The Reverend T. M'Millan, of Cardross, Dunbartonshire, was one of several hundred ministers who left the Established Church in 1443, and who united in a new ecclesiastical body called the Free Church, which may be said to comprehend nearly one-third of the people of Scotland. In 1856-7 Mr. M‘Millan was proceeded against by the Presbytery of the bounds on a libel, charging him with certain acts of drunkenness and improper conduct. The libel was partially found proven by the Presbytery ; on appeal to the Provincial Synod, a small portion of the accusation was sustained, and an appeal was then taken to the General Assembly, the supreme tribunal of the body, whose whole organization is founded exactly on the model of the Church of Scotland. The Assembly, on hearing the case (May 1857), instead of dealing simply with the points appealed, reverted to a portion of the original accusation, and found it proved, and at the same time dismissed the appeal. In consequence of that finding the Assembly sentenced the accused to suspension sine die from the office of the ministry, and declared his charge vacant. Mr. M'Millan feel- ing aggrieved by a judgment which had not been regulated by the usual form of process, and dealing with him, as he conceived, unjustly, carried the case to the Court of Session. The Assembly, then sitting, indignant at the appeal made to the civil courts, cited Mr. M`Millan to appear at the bar. Re did so, was questioned if he had so appealed, he replied in the affirma- tive, and was thereupon, without formal process of any kind, summarily
instantly nstantly deposed from the ministry—the capital sentence of the Eccle- siastical Courts. Mr. M‘Millan again appealed to the civil courts, and raised two separate actions against the office bearers of the Free Church As- sembly, craving redress against these sentences and claiming reposition and damages. These actions were met by the defenders in various pleas, the leading one being that the sentenoes now brought under review of the civil courts were those of an independent and spiritual body over which the civil courts could have no control or jurisdiction. The Court of Session viewing the case as a highly important one, called for production of the standards of the church, the deeds under which the pursuer was amenable to the ecclesi- astical body, and the minutes of the proceedings against the pursuer. The defenders entered elaborate written pleadings to show that they were bound to do so, and that the civil court had no authority in any case to review their acts.
The Lord President, however, and his colleagues on the bench, said that the question was one of contract, and they must have the sentence on Mr. M‘Millan and the contract competently before them. Mr. M‘Millan, as a British subject, has a right to redress if he has suffered wrong. The Free Church Assembly is a voluntary association. It has no jurisdiction other than that given it by the contracts it makes with different parties. Lord Dees said—All jurisdiction flowed from the supreme power of the State ; and the sanction of the same authority which enacted the laws was ne- cessary to the erection of courts, and to the appointment of judges and ma- gistrates to administer the laws. The Established Church of Scotland had, and still has, its sanction. The statute law conferred on it ecclesiastical ju- risdiction to be exercised by kirk sessions, presbyteries, provincial synods, and general assemblies, but there was no such statute law applicable to the association called the Free Church of Scotland. When the defenders sepa- rated from the establishment they left all jurisdiction behind them. If they meant to carry it with them, as sonic expressions in their deeds and writings produced would seem to indicate, it was enough to say that this could not be done. No voluntary association could by any agreement among its mem- bers assume a jurisdiction which flowed only from the legislative power and the Royal prerogative. The Free Church was a voluntary association, tolerated and protected by the law, as all voluntary associations for lawful
purposes were in this free country. What was termed toleration was in reality freedom—just as much as if there was no Established Church in the country. But the presbyteries, synods, and assemblies of the Free Church had not been erected into courts either civil or ecclesiastical, and the con- stituent members of these presbyteries, synods, and assemblies, were not judges in any legal sense. They sat and acted and voted solely in virtue of the private contract regulating their proceedings among themselves ; and this contract did not, and could not, confer on them any jurisdiction what- ever. There was no such thing as voluntary jurisdiction in the ordinary sense of the term, and there was no such thing as a voluntary judge. Even an arbiter was not a judge, though the law for reasons of expediency con- ceded to his proceedings seine privileges aualagous to those of a judge. It was obvious, however, that the defenders were not in the position of arbiters. Arbiters must hear, and the defenders had not heard. Their plea was that they were not bound to hear, and he (Lord Dew) was not assuming they were wrong in saying so ; but if bound to hear at all, it was certainly not as arbiters. It was neither a case of jurisdiction nor of arbitration, but a case of mutual contract which the purser alleged and undertook to prove the de- fenders had violated, to his loss and damage. It might be that the defenders could satisfy them that this was not a civil contract at all, or that, being a civil contract, it related to some act lawfully in the power of the defenders so that this court could give no decree that could avail the pursuer. All that would be open to the defenders to show ; but, before they could go into these questions, they must know precisely what the contract was. There could be no contract or resolution of any private association which this Court was not entitled to see and consider, to the effect, at all events, of as- certaining whether the contract involved civil rights, and whether a wrong had been done or not which admitted of judicial redress. The Court rejected the defences as against "satisfying the production"; gave the pursuer his costs, and directed the Lord Ordinary to fix a day for proceeding with the cause.
Previous page
