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Church Of Scotland-Benefices

Volume 70: debated on Monday 26 June 1843

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having announced the consent of her Majesty, the House went into committee on the Church of Scotland, Benefices Bill.

On the first Clause,

regretted that the noble Earl had not complied with the request of his noble and learned Friend (Lord Brougham) to postpone this bill. He knew that his noble and learned Friend was so ill, that he rose from a sick bed on Saturday last to discharge judicial duties. Under such circumstances, he thought that the request of his noble Friend ought not to have been refused by the noble Earl. In proceeding with such a bill he conceived that the noble Earl was adopting a wanton and mischievous course. He understood that this was to be an enacting, and not a declaratory bill, and also that the objections to be made to a presentee should be strictly of a canonical and spiritual nature. He considered the bill, as it were, a wanton insult, and also one that gave a shock to their Lordships' judicial system. It was his opinion, also, that if the bill passed in its present shape, it would prove the ruin of the Church of Scotland. The bill was one for establising the liberum arbitrium in the Church of Scotland. The Church courts might, by the bill, give effect to any objection that might be made to the presentation of a minister, and might thus defeat the presentation of a patron. if this power were given to them, without appeal, they would be vested with a power absolute and irresponsible? Such a power was never conferred on a Church since the foundation of their holy religion. It would give existence to a spiritual tyranny that would be totally unendurable. If this bill passed, he asked their Lordships what became of patronage? What became of the act of Anne? He would much sooner see the act of 1690 in force than give his sanction to such a bill as this; for it would give the right of presentation, not to the patron, or the parishioners, but to the presbytery. He complained that no attempt had ever been made to answer the arguments of his noble and learned Friend (Lord Brougham) and he must say of his noble and learned Friend that he deserved better treatment from the Government than lie had received with respect to this bill. His noble and learned Friend had shown very great can, dour with respect to the measures of the Government—he had given them valuable aid, and he thought a very ungrateful return was made to his noble and learned Friend in this bill. Their Lordships had the unanimous opinion of the law Peers that this was not a mere declaratory bill, but one that would effect great alterations and innovations, Would they, then, give their sanction to it? It was said, that a more moderate party were now in the ascendant; but might not the next General Assembly either enact the veto law, or, what would be tantamount to it, give full scope to the objections made by the congregation to a minister, on the mere ground of his not being suitable? They could not expect to decoy back to the Church those who had seceded from it, or to reclaim those eminent men whom it was impossible to name without respect, seeing the great sacrifices they had made. They had rejected this bill several years ago, and declared that they would not be content unless the veto was legalised by act of Parliament. There was not the remotest possibillity of Dr. Chalmers, Mr. Guthrie, or Mr. Cunningham being satisfied with this bill. Again, the constitutional party, in their report and memorial to the Government, had declared their repugnance to such a change as was proposed by this bill, as being "a power, liable to be unequally and oppressively exercised, without the possibility of redress, and eminently calculated to render the Church an object of suspicion and jealousy." These gentlemen were sensible of the truth that irresponsible power in the hands of churchmen became inevitably the instrument of the grossest tyranny and oppression. He should wish to know from the noble Earl what was to be the check on the power that would be given by the bill, for, as it now stood, the jurisdiction of the civil courts was utterly abolished. If the presentee were rejected on any frivolous ground, as that he was favourable to the moderate party, or even that he was of a dark complexion, the Court of Session, as the bill now stood, could not, by any process known to the law, remedy the evil. There was no appeal of any sort allowed. The Church of Rome, neither before the Reformation, nor after it, had ever claimed such a power. In Romish times, if the church courts proceeded to deprive a clergyman, or refused to induct him on any ground not canonical, immediately the civil court would interpose, and do right to the presentee. Such a power did not exist in Scotland before the Reformation, and never had been supposed to belong to the Church. Instead of healing the unhappy schism which had taken place in the Church of Scotland, it would only aggravate and embitter the discord; for he knew, from the most undoubted authority, that those who had seceded from the Church would think they were most deeply injured if the Church did possess those powers. They were of opinion, and their opinion was well-founded, that if it did possess them, the veto act ought to have been sanctioned by the Court of Session, and if it had been so sanctioned, they would have remained untainted members of the Church of Scotland. He Very much regretted that the noble Earl should have pursued this course, to which, however, he trusted their Lordships would not accede. There might be some individual to whom the noble Earl paid great deference, as a better authority than any whom he could obtain in England; but he could not help thinking he must be muddle-pated and obstinate. It was his conviction that the noble Earl would have done better to have taken the law from one of his noble and learned Friends, or from the majority of the Court of Session, who had pronounced their opinions against this measure. He hoped the noble Earl would not persist in it, and that their Lordships would not declare that to be law, which was contrary to the present law and the solemn judgment pronounced in that House. The noble and learned Lord moved, that the word "declared," in the first section, be omitted.

said, it was with great reluctance and diffidence that he differed from such authorities as those of their Lordships who had expressed their disapprobation of this measure. The noble and learned Lord had described the measure as the veto, and said that the party who had seceded from the Church felt that they were greatly injured by having that enacted which, had it been made law before, would have held out to them the means of remaining in the Church. To show how little correct that view of the case was, he would just observe that several of the party to whom the noble and learned Lord referred, had waited in the hope of seeing this measure, and of its enabling them to retain their position in the Church. There were many who were barely satisfied with the bill as it stood; others had left the Church, disappointed with its provisions, and among them one gentleman whose loss to the establishment was deeply to be deplored, the son of Lord Moncrieff. There was every reason to believe that if this bill were not passed, not less than 150 more ministers would follow the example of those who had gone out. Dr. Cunningham, one of the leaders of the seceding party, had described the bill as "directly and expressly opposed to all the principles for which the Church was contending, and flatly adverse to the principles of non-intrusion." The noble and learned Lord had also said that the opposite party were unfavourable to the measure. He never was more astonished in his life than when he heard the noble and learned Lord make that statement. He had the signatures of nearly 400 clergymen of this party approving of the measure. The report to which the noble and learned Lord alluded was directed not at all against this measure, but against the principle of non-intrusion. The noble and learned Lord said the bill had not been the law of the Church. It was only on the presumption that it had always been the law of the Church that he brought it forward, but he had never pretended to make any new law for the Church whatever, to give any new power to the Church or the people, but simply to declare the law on which doubt had been thrown, not in consequence of the judgment of that House, but in consequence of opinions and reasons stated in the course of that judgment, and never stated by the court below. He maintained that the Church had this power, and always had had it; he would not be the man to fix the brand of Erastianism on her front by enacting that that should be granted to her which she had possessed for three centuries. The noble and learned Lord said he would allow of canonical objections to a minister; the canon law had been but of small authority before the Reformation in Scotland, and was not at all regarded since. The noble and learned Lord forgot that the admission of ministers in Scotland stood on a perfectly different footing from the admission of clerks to benefices in England. The bishop was not bound to give any reason for not ordaining, but in Scotland, in the act of admission, ordination was included. The statute of 1567, which gave the power of trial and examination, and that of 1592, which directed ordination to be given by the presbyteries with full powers of collation thereon, gave all that was proposed to be given by the bill now before their Lordships. The only reason they had to interfere in this matter at all was the connection that existed between the civil and spiritual power. They could not separate the act of ordination from the admission to a benefice. The presbytery must have the power of judging all objections urged against a presentee. That point, the noble and learned Lord had abstained from entering upon; but it was one which comprised the whole practice of the Church. The difficulty which he (the Earl of Aberdeen) had met with in Scotland arose from the inadequate provisions of this bill; but it would now be seen that it was no such easy matter to extend them. For his own part he saw no objection to the exercise by the people of Scotland of any privilege de-dared by this bill; and had it depended on him, he would even have conceded greater power to the people of Scotland; that is, if he had known how to do it legally, for lie did not wish to go beyond the law. It was most painful to him to find himself opposed on this question to the noble and learned Lord opposite; but that this had always been the law of Scotland he could not for a moment doubt, and not to insist upon the provisions of this bill, would be to abandon the rights of the Church and the people—a thing which no consideration under heaven should induce him to do. Still he had felt his opposition to the noble and learned Lord so painfully, that he had taken every possible pains to fortify his own convictions on the subject. Among those to whom he had applied was a most able and learned judge, who had been the first to protest against the illegality of the Veto Act, and whose opinions had contributed more than anything else to enlighten that House on the Auchterarder case. The Lord President of the Court of Session had written to express his full approbation of the bill before their Lordships. The heads of the courts of Scotland, and those professional persons to whom it was incumbent on her Majesty's Government, on a measure of this kind, to pay full respect and attention, having expressed their full approbation of the bill, he felt his own opinion strengthened and sanctioned, and he could not, therefore, agree to the proposition of the noble Lord, that this should be made simply an enactive and not a declaratory bill. He should think that he disgraced himself, if he agreed to abandon rights which he considered to have belonged to the Church and the people of Scotland ever since the Reformation.

had Voted for a similar measure brought in some years ago by his noble Friend, and had done so in the desire that the bill might settle the question then under discussion, and by which that country was then so much disturbed. The subject had since been discussed in various ways, both here and in Scotland, and a letter had been written with the entire approbation of her Majesty's Government by his right hon. Friend the Secretary of State. Since then, this bill had been introduced by his noble Friend on the part of the Government, and with the full concurrence of his colleagues. The only doubts which he (the Duke of Wellington) had felt on the subject, had arisen from the statements of the noble Lord opposite, and of his noble and learned Friend who had spoken a few nights ago, that this bill was inconsistent with the decision of that House on the Auchterarder case. That statement had made much impression on his (the Duke of Wellington's) mind, and had led him to make anxious inquiries on the subject. As far as he recollected, the Auchterarder case arose after the enactment of the Veto Act by the General Assembly of the Church of Scotland; and the question then was, whether the Presbytery had acted correctly in declining to put on his trial the presentee to that benefice. The decision of the Court of Session was, that that refusal was illegal. Upon that decision an appeal was made to that House, and their Lordships confirmed the decision of the Court of Session. Upon what ground was the refusal made to collate the presentee to the benefice? Because an objection was made to his appointment by the majority of the communicants to his appointment. Was it stated in this bill that such an objection should henceforth be legal. There was not one word in the bill about the power of the majority of the communicant, nor anything excepting what went to put the presentee on his trial. All his scruples on the subject of this bill had, therefore, been done away with, by a careful consideration of what was the real nature of the Auchterarder case. The noble and learned Lord stated that great and irresponsible power was placed by this bill in the hands of the Presbytery. But a great power was also placed in the hands of the bishops in England. There was this great distinction, however, which required to be kept in view. The moment a man was put on his trial in Scotland, the consequence of that decision was not only the presentation to the benefice, but the ordination of the pastor. It was reasonable, therefore, that the Presbytery should have the power of deciding on such a question. This bill went further, however, and said that a reason should be stated for the refusal of the Presbytery, and the reason so stated would have to go before the superior courts, as well as before the public, which could not but act as a great check upon the Presbytery; to whom, therefore, it could certainly not be said, that the bill gave an irresponsible power. On all these grounds he had come to the conviction, that the bill now before the House did not touch upon the Auchterarder case, and he could not therefore take the same view of it as was taken by the noble and learned Lord now at the Table, nor by his noble and learned Friend not now in his place, but whose judgment on that case had done him so much credit.

said, it appeared now to be contended, that the bill was wholly declaratory. If so, it was no new law. Yet here was a very complicated scheme laid down as to the way in which the law was to be carried out. If this bill was already the law of Scotland, where was that law to be found? In the statutes? In the decisions of judges; or in the commentaries of distinguished writers on the law? Except some noble and learned person with whom the noble Earl appeared to have been in communication, there was no authority for the position that the law of Scotland was as it was laid down in this bill. Indeed, he did not believe the noble Earl could name any one learned person who would deliberately say that that bill was the law of Scotland now. The opinions pronounced by the noble and learned Lord on the Woolsack were certainly against the legality of the bill. He (Lord Cottenham) did not think the judicial character of that House would suffer by the bill, but certainly its legislative character would. All the authorities whose opinions had been expressed in that House were against the bill being the law of Scotland. The noble Duke had very correctly stated the Auchterarder case; but if he had followed up the case a little further, he would have seen how the question was dealt with by the minority and majority of the Court of Session. By this bill, if the majority objected to a presentation, and the objections were approved of by the Presbytery, no civil court would have the power of overturning them. Then where was the difference between the bill and the principle of the Veto Act? The bill of the noble Earl was taken from the acts of the Assembly, and not from Acts of Parliament. When patronage was abolished, a similar scheme was enforced, but at no other time. The act of 1692 was abolished by that of 1711; but this bill would bring about a state of things similar to that under the former law. The heritors were the moving power in the former case, here the patron; but the Presbytery having in both cases an absolute power of rejection, of course their word must be supreme. He always thought that the opposition of the non-intrusion party to the noble Lord's bill of 1840 did them great credit. They proved their sincerity by insisting that no ministers should be forced on the people against their will. That might or might not be a very wise principle; but how did the noble Lord propose to meet it in this present bill? He said: "I am ready to sacrifice the people; do you, the Presbytery, take all power to yourselves, and if you see good reason for such a step, force their ministers on the people." But the non-intrusionists insisted this was as much intrusion as if it were perpetrated by the patron. It was forcing on the parish a person whom the parish did not wish to have. So that the result of the noble Lord's proceeding was this, he took from the patron an indefeasible right, he conferred it on the Presbytery when they were not entitled to it; and he rejected the demands put forward by the people. Now as to the clause giving the power of instituting objections as to the suitableness to be tried by the Presbytery. Suppose where there was a strong non-intrusion party prevailing in a parish, and that an individual came to the Presbytery and said, "I have reason to know that the minister presented is not acceptable to the majority of the congregation, and, therefore, not suitable." There was one objection stated in due form according to this bill; the Presbytery being called on to exercise their judgment respecting it, and, being a non-intrusion body, pronounce it valid, what becomes of the patron's right of patronage? Where the opposite doctrine to non-intrusion prevailed, a minister of the same way of thinking would be the only person "suitable." So that ministers could only be appointed according to the fancy, taste, and opinion of the Various Presbyteries throughout Scotland. He never was satisfied that the provisions of this bill were the law of Scotland. But having examined to the utmost of his ability all the authorities referred to in the Auchterarder case, and the opinion of the judges who constituted the majority on that occasion, having heard all the arguments at the Bar of that House, and having referred to all the best books and other authorities quoted, he found all concurring in the view contradictory to that declared to be the law by the noble Earl. On the other side, they had only the assurance of the noble Earl, that his view was confirmed by the judges. He could not help thinking, however, that the noble Earl, being no lawyer, must have fallen into some great error, and misconceived the statements made to him. Certain he was that Lord Justice Clerk's opinion on the Auchterarder case was opposed to that quoted by the noble Earl; but even if the noble Earl was right as to the Lord Justice Clerk, the weight of legal authority was certainly opposed to his view.

had stated on a former occasion, that this bill, if it should pass into a law, would tranquilize the Church of Scotland, and from various communications that he had received since that occasion, he was confirmed in the opinion which he then expressed. The question was, whether this was an innovation in the law of Scotland. The noble Lord who had just sat down referred to but one clause in the bill, and his noble and learned Friend who had preceded him referred to two clauses of the bill, the 2nd and 4th, omitting the 3rd clause, which was most material for consideration, and most material for the construction of the bill. The 3rd clause expressly, and in terms stated, that no objection should prevail, unless it was founded on some defect in the presentee's ministerial gifts. Unless the objection, therefore, ranged itself within that character it could not prevail., and, consequently, there was an end at once of the arguments urged to take away the jurisdiction of the civil courts; because the parties who had given judgment were bound to state the reasons for that judgment; and if those reasons did not come within the description personal to the individual, in that case they exceeded their authority, and the civil courts interfered. Then what became of the whole argument which had been advanced on this occasion by his noble and learned Friend? It had proceeded on an assumption which the form of the bill did not justify or warrant. The bill was limited in the manner he (the Lord Chancellor) had stated, and was not open to the greater of the objections which had been urged by his two noble and learned Friends. With respect to the Auchterarder case, he entertained the same opinions he had before expressed—he had never doubted the justice of the decision in that case. He had before stated not only that he was satisfied with that decision, but also with the grounds on which that decision proceeded. And what were those grounds? The grounds were, that the authorities had exceeded their jurisdiction—that their jurisdiction and authority was limited by the express provisions of the statute of Anne, and the question had turned entirely on the construction of that statute. These were the main grounds of the decision, and on those grounds he entirely concurred with his noble and learned Friends, but he apprehended the Auchterarder case, though decided by that House, and concluded with respect to the law, vas not conclusive with respect to any opinions held by those who gave judgment, unless those opinions were necessary to the decision of that case. How was the Auchterarder case? The Earl of Kinnoul had presented the rev. Mr. Young, and the Presbytery refused to try his qualifications, because the majority of the parishioners objected, and upon this the court below found by its judgment, that this refusal was illegal, and their Lordships' House had adopted that decision, by saying the Presbytery had acted illegally and contrary to the statute of Anne. It was quite clear, whatever definition was given to the term "qualification," that the decision must have been pronounced as it was pronounced in the court below. It did not, therefore, appear to him (the Lord Chancellor) that their Lordships were at all bound by the opinions expressed by his two noble and learned Friends as to the extent and meaning of the term "qualification,"—though he admitted both his noble and learned Friends, in pronouncing their judgments, had entered upon the meaning of the term with great ability, learning, precision, and clearness, and he could not and would not venture to express any opinion in contra_ diction to what was stated by his noble and learned Friends. Not having heard the arguments at the Bar, he, of course, must bow to their decision; but if the question really at issue had not been decided by that House, it was still open for inquiry. It was a question of Scotch law relating to the Scotch Church, and, being so, what were the opinions upon it of the judges and lawyers of Scotland? What was the weight of these opinions? Reference had been made to one of the learned judges, who at the time the Auchterarder case was decided, was the Dean of Faculty, and who had argued the case with great ability and eloquence at the Bar. This bill had been submitted to that learned judge. It was in vain to say, "Let us see the case that was submitted," for the bill itself had been sent to the learned individual to whom he (the Lord Chancellor) alluded, and it was upon the bill itself the learned judge had pronounced his judgment and opinion, which he (the Lord Chancellor) would read. That learned judge expressed himself with respect to this bill in these terms:—

" As the bill stands, it is the deliberate opinion of myself, of the Lord Advocate, and of the Solicitor-General, that it embodies the existing law of Scotland."
In another passage he spoke more in detail. He said:—
" I beg to state most decidedly my clear opinion that your bill is only declaratory of the law of Scotland on the subject of the collation of ministers by the Church, or, as another statute calls it, the examination and admission of ministers; or, as the statute of George 1st describes it, of trying the qualities of ministers. I admit that the law has never before been so explained and cleared up, and your bill goes to the full extent of the principle of the suitableness of the minister, as admitted by me in my judgment in the Auchterarder case."
That was the deliberate opinion of the Lord-justice Clerk, of the Lord-advocate, and of the Solicitor-general of Scotland. It must be observed, that this bill dealt with Scotch law, and the question was, whether his noble Friend who had brought it in was justified in making it a declaratory law I In this his noble Friend was supported by the opinions of the authorities he had named. But this was not all. The bill of his noble Friend was, as nearly as possible, the same as that which his noble Friend had introduced some two or three years ago. That Bill was also a declaratory bill, and also had been submitted to the late Lord-president—no mean authority upon questions of this kind —a member of the General Assembly for fifty years, and, therefore, well skilled in the practical operations of that body. The late Lord president considered the former bill as declaratory of the law of Scotland. Did this authority—that of the Lord-justice Clerk a man of great learning and experience on subjects of this kind, justify his noble Friend who had brought forward this measure in the course he had pursued? But the matter did not even rest here. His noble and learned Friend said, that the present Lord President, who formerly filled the office of Lord Justice Clerk, had expressed himself adverse to the principle contained in the present proposed law. Now he had read that learned individual's judgment, and so far from concurring in the construction put upon it by his noble and learned Friend, he was on a former occasion about to read the very passage which had been quoted, for the purpose of showing that the present Lord President entertained a different opinion from that alleged by his noble and learned Friend. This was, however, now unnecessary, for he had seen a letter from the present Lord President on the subject of this Very bill, which he would read—
" I hold that the enactments proposed in your bill are in consonance with the true prin- ciples of the constitution of the Church of ' Scotland. I cannot, therefore, persuade myself that there is any solid ground for holding that your Lordships' bill can be justly viewed as impeaching the authority of the judgment in the Auchterarder case. In that case nothing was, in fact, judicially determined as to the extent of the power of the presbytery in trying the qualification and completing the admission of the presentee which the church had thought proper to devolve upon the communicants."
So that this learned judge, who pronounced a decision in the Auchterarder case, said there was nothing inconsistent with the law of Scotland in the provisions of the bill, still less was it not in consonance with the constitution of the Church of Scotland. Such were the opinions of lawyers of great authority and learning upon a question of Scotch law; such were some of the authorities upon which his noble Friend had thought himself justified in making this a declaratory law. But these were not the only authorities. The other night he had read to their Lordships a passage from the judgment of Lord Monteith, and in confirmation of what he was now stating, he would refer to a fact of no small importance in this question. He (the Lord Chancellor) had stated that in the case of "Peyton v. the Earl of Zetland," which had been decided in the second division of the Court of Session, Lord Medwyn, and Lord Meadowbank being present, the Lord Justice Clerk laid down the law in the manner he (the Lord Chancellor) was about to state. He said
"The expressions I used were, that the presentee must be fit and suitable for the performance of the duties in that particular parish, and of that the presbytery shall be judges."
This the Lord Justice Clerk expressed more than once in the hearing both of Lord Medwyn and of Lord Meadowbank, and without any dissent on their parts, and therefore it must be presumed they concurred. This was a commentary upon the passage to which on a former evening he bad referred, and which his noble and learned Friend thought of doubtful construction, hut which he (the Lord Chancellor) thought admitted of no doubt, confirmed as it was by the circumstance he had just stated. He admitted that Lord Corehouse dissented from the decision, and that he stated there were other objections besides life, literature, and manners; but he was still an authority against that narrow construction; indeed, against the whole argument raised on the other side. Then there was Lord Jeffrey, and five other judges of great learning; and with all these authorities in his favour, he again asked whether, under the circumstances, his noble Friend—himself a native of Scot-laud, and alive to her interests—and feeling strongly the opinions of the Scotch judges on this matter of Scotch law, was not justified in making this bill, supported as it was by such eminent authorities, declaratory? He gave an opinion upon Scotch law with great hesitation unless be heard the whole case argued at the bar, but then he felt confident by the application of industry and diligence to the consideration of the matter, of being able to form an opinion upon it. In this case, however, he referred their Lordships to those authorities of the highest eminence, and it was for their Lordships to determine whether with that weight of authority in its favour this bill ought to pass. There was another point upon which he wished to say a few words. Almost all the authorities which had been cited went to show that the jurisdiction of the presbytery preceded the Reformation. Now it was well known that everything was swept away at the Reformation, and that the canon law was trampled under foot. After this the act of Parliament passed in which the word "qualification" was used. Then he begged to ask what had been the uniform usage from that time to the present? He understood in practice the presbytery bad never been limited to "life, literature, and manners," but were entitled to consider the fitness and suitableness of the party for the parish in which he was called upon to perform particular duties. It was not an ordination only, but the planting him in the parish, If the man was infirm, how could he discharge the duties of a large and populous parish? If he could not be heard —if he lisped or had a defect in his utterance, who had in all such cases to decide? Why, the presbytery; and, therefore, lie thought the narrow construction which had been contended for was not warranted by cotemporaneous and constant practice. What was the form of the very instrument of presentation itself? Why, that the presbytery would admit So-and-so, "if you find him fit and qualified to fulfil the duties." Not qualified only, but fit and suitable to perform the duties for which he was to be placed in the parish. On the whole, he (the Lord Chancellor) rested the case on the authorities of the Scotch law, and upon those authorities it was for their Lordships to say whether or not his noble Friend who had introduced this bill was justified in making it declaratory.

did not rise to discuss the question before the House as one of Scotch law, for that, he felt himself incapacitated: but the grounds upon which that declaratory law was proposed to be passed, were to his mind in the highest degree alarming, and struck deeply at the very roots of judicial authority in the country. A judgment was pronounced in the Court of Session, it was appealed from to that House, where a judgment, in which he took no part, was pronounced, —a judgment which he had read, as well as the reasons upon which it was founded, with the utmost pleasure and instruction. To his mind the arguments upon which that judgment was founded were well reasoned and conclusive. When he found a judgment pronounced by noble and learned Lords of such standing as agreed in the Anchterarder case, and when he found such reasons given for that judgment, he must say, that a very strong case must be made out before it should be set aside. Even if those reasons were incorrect, no court would be concluded by them. He was told that that was a measure of peace and conciliation, and that it was necessary that it should be passed in its present shape; was it necessary, then, to declare an untruth; was it necessary to declare that to be law which was not law? The noble and learned Lord on the Woolsack declined to give any opinion upon the law of Scotland; he said he acted upon the opinions of a minority of the judges which had been forwarded to him. He (Lord Denman) must most earnestly protest against all private canvassing of judges; he objected to all private communications being sought from judges; their opinions on points of law ought to be given publicly in open court. The Lord High Chancellor, the highest law authority in the land, entirely approved of the judgment of his noble and learned Friends, and of the reasons upon which it was founded; but in consequence of those letters—declining to give any opinion upon the matter, and standing upon these letters he gave his powerful support to the bill, Was such a high authority justified in calling upon their Lordships to declare that law upon which he refused to give any opinion? The Lord High Chancellor declared that he was not able to make up his mind upon the law of the case, but, pinning his faith to the opinion of others, he called upon their Lordships to give their sanction to a bill declaring that law, upon which he could give no opinion. He felt it necessary for the due administration of the law, to protest against any such declaration of that which was not law; he felt that it would be fatal to the independence of all the courts of law. He (Lord Denman) stood upon the word "declaratory." If that which was to he declared was the law, then the word was unnecessary: if not, then they were binding the courts to a decision of their own, which had been come to without any of those arguments which would naturally have arisen had it been come to in a court of law.

said, before they made a declaratory law, it was necessary that they should know what the law was. By the acts of 1592 and 1567 the presbyteries were compelled to admit every qualified person, and the right of lay patronage was preserved. What was the meaning of qualification? It did not mean whatever the presbyteries might capriciously fancy, but a qualification to be determined by the life, literature, and manners of the party presented. He objected to private communications, conveyed by the medium of letters, being made the foundation of legislation, and concluded by observing, that their Lordships were now called upon by the present bill to declare that to be the law, which in their judicial capacity, they had declared not to be the law.

The House divided on the question, that the words proposed to be left out stand part of the clause:—Contents 30; Not. Contents 8: Majority 22.

House resumed.

The House adjourned at a quarter to one o'clock.