II.
(Continued from Vol. XLVII. p. 223).
ANOTHER case in which the Church came into clash with the findings of the civil courts was that of Lethendy in the Presbytery of Dunkeld. The parish minister was Rev. Laurence Butter. The Crown as patron of the parish, appointed in 1835 Mr. Clark to be Mr. Butter’s assistant and successor. Mr. Clark was vetoed by the congregation and was rejected by the Presbytery. He appealed to the superior church courts and in 1836 the Presbytery’s decision was confirmed by the Assembly. In 1837 he raised a civil action against the Presbytery which was brought into court in November of the same year and in a few days thereafter Mr. Butter died. Mr. Clark had never received from the Crown any regular deed of presentation. The writ issued in his favour by the Crown in 1835 was what is called a sign-manual by virtue of which, in the event of his being inducted as assistant and successor and surviving Mr. Butter, he was to be vested in a right to the temporalities of the benefice. The Crown now made a move declaring that the sign-manual
was null and void in consequence of the ordination and induction not having taken effect during the life of Mr. Butter. It issued a presentation to Mr. Kessen. When the deed of presentation was laid before the Presbytery it proceeded in the usual way for the ordination and induction of Mr. Kessen. In the course of the proceedings Mr. Clark* came forward with an interdict from the Court of Session to arrest the ordination proceedings. The Presbytery reported the matter to the General Assembly in 1838 and asked for their advice. The Presbytery were instructed to complete the proceedings of Mr. Kessen’s settlement and to report their diligence to the Commission in August. The Assembly by this decision did not mean to decide whether the sign-manual or the presentation was the valid legal instrument or not.
There were other presentations which brought the church courts into conflict with the law courts but these need not be mentioned as sufficient cases have been brought forward to give one a fair idea of the working of the Veto Act and the view taken of it by the civil courts. In short, their verdict was that the Act was ultra vires. They ignored its claims as illegal notwithstanding that the crown authorities had given an assurance that it was within the Church’s province to pass such an Act—even Lord Brougham saw nothing out of place in the passing of such an Act though afterwards in his official capacity he condemned it. The Crown presentations were made under the Act so that it was recognised in the high circles of the day. But after the decisions of the Scottish Courts and the House of Lords a situation had arisen which was certainly, to say the least of it, most embarrassing to the Church whose Supreme Court had passed the Act. It is true that there were some in the Assembly who regarded the Act as illegal from the beginning and who now felt fortified in their opinion after the decisions of the law courts. When the Established Church Assembly partially recovered from the bewilderment caused by the reading of the Protest and the departure of so many of the members of the Assembly they were faced with certain perplexing questions among them such as whether they should answer the Protest, and whether the status of the deposed Strathbogie ministers allowed them to sit as commissioners in the Assembly, and further, whether they should repeal the Veto Act or ignore it as illegal. On the latter point which is of interest to us in the present connection there was a long debate in what the Evangelicals who left described as the Residuary Assembly. The Committee on Overtures passed on eight overtures to the Assembly asking for the Repeal of the Act. When the Overtures from the Presbytery of Ayr, and Presbytery of Hamilton asking for the repeal of the Act, were read the discussion was opened. After one or two short speeches denouncing the legality of the Act Dr. Cook rose and in a short speech moved the following motion: “That as the Act on Calls, commonly denominated the Veto Act, infringes on civil and patrimonial rights, with which, as the Church has often declared, it is not competent for its judicatories to intermeddle, as being matters incompetent to them, and not within their jurisdiction, it be an instruction by the General Assembly to all Presbyteries that they proceed henceforth
* This unfortunate man had a libel served on him by the Presbytery in 1842 for certain offences and he was deprived of his license. When the Moderates were again in power the sentence was reversed on 25th May, 1843. Another libel was served on him for drunkenness and being proven he was deprived of his license.
in the settlement of parishes according to the practice which prevailed previously to the passing of that Act; keeping specially in view the undoubted privilege of the parishioners to state any relevant objections to the induction of presentees, upon which Presbyteries, after hearing parties, shall decide—it being in the power of those parties to appeal, if they see cause, to the superior church courts.” The motion was seconded by Mr. Hugh Bruce, advocate. The Procurator was of opinion that the Act should be repealed and moved a motion to the effect. His motion was seconded by Mr. Yair of Eckford. Dr. Mearns, Dr. Bryce, Sir Charles Ferguson, Prof. Hill, Mr. Gibbon of Lonmay, Mr. Storie of Roseneath were all for the rescinding of the Act. The procurator withdrew his motion as did also Mr. Storie who had moved an addition to the procurator’s motion. Dr. Cook’s motion was thus carried unanimously. As he stated himself his motion had respect to an interim act suspending the Veto Act. An interesting point was raised in the debate by Prof. Alexander who asked if the Veto Act was a mere nullity then what of the 200 to 300 ministers ordained under this Act whose rights and status rested on this nullity? None of the leaders of the House attempted an answer. We have been at pains to dwell on the fate of the Veto Act as being declared ultra vires. There is a prevalent idea in certain quarters that legislation which is ultra vires is inoperative in the church courts (for instance the Declaratory Act) such a view finds no place in the contention of the Evangelicals who passed the Act even after it was declared illegal by the law courts. If it was illegal as held by the Moderates then was Dr. Cook’s or the Procurator’s motions the best way of getting it out of the way? We are not careful to give an answer to this as it raises certain questions that are not easily answered.