They tell us that a clergyman, in the diocese of Lincoln, stands charged with various acts of shameful and open profligacy; that again and again proceedings have been instituted against him, which have been rendered abortive [pray reader, mark what follows]- by the interference of the courts of common law: That petitions on this subject have been repeatedly presented to the highest tribunal in the kingdom [the House of Lords]; and that several peers have spoken upon it, and indignantly asked why such things took place, and why the bishop did not do his duty. They go on to report that the late Bishop of Lincoln replied that he had spent several hundred pounds in ineffective endeavours to punish the delinquency complained of, and that the present bishop of that diocese [Dr Kaye]-than whom no prelate ranks higher for depth of learning and soundness of discretion-openly in his place in Parliament avowed and lamented his inability to act to any useful purpose!!" Pp. 31, 32.

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Here, then, is a clergyman openly and notoriously guilty of ' various acts of shameful and open profligacy. His diocesan is not only aware of the fact, but anxiously desirous to do justice in the matter, and purge his diocese of a pestiferous incumbent, who outrages all decency, and brings religion into very contempt. All the machinery of discipline which the Church of England can wield is brought against him; and when the courts of ecclesiastical law, notwithstanding of their scandalous delay,' which has brought upon them so open and just a condemnation, are about to pronounce him guilty, and visit him with most condign punishment, forthwith, in steps some Mr Proctor Praterkin with a prohibition, the Anglican interdict, in his hand, and charges them on their peril, and as they shall answer to their superior civil judicatories,' to molest him. And effectually to screen the protégé of the civil courts, by and bye some Chief Baron Conyngham removes the case into a temporal court, where nought will pass but the law of the land, and where violations of the laws of God and his church are deemed no trespass!

Such is notoriously the case in England. And what is the case in Scotland? Ransack the records of the General Assembly, and of the Court of Session for the last three years; and you find an answer as painful as it is palpable. While the present noble band, who form the majority of our church courts, continue in the Church, such invasions of the liberties and rights of Christ's kingdom will never be tolerated. But let that majority shake off the paralysing incubus of an Establishment, as of late it has been painfully felt to be, and what will the Rump' then do? when they remain in an Establishment constituted on the avowed and, on all hands, acknowledged principles, that the civil courts have both the right and the power to trample in the dust the laws of God and his church-to interdict, at all their stages, processes of discipline for theft, forgery, and adultery, as already they have done-and taboo parishes, and send that man to prison who dares to preach the gos

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pel where the civil courts maintain a heretic or a profligate. Will those that remain dare to prosecute any of their adherents after they had, by remaining, clearly renounced all right to exercise ecclesiastical discipline upon any of their delinquent brethren? Or, after having been for a time deprived of the power to exercise discipline, how long would they retain the desire to do so? Or how long would there remain amongst them a majority of men who could prosecute without feeling that they were violating the precept, he that is without sin, let him cast the first stone?'

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Having thus been led to allude to the recent decisions of the Court of Session in ecclesiastical matters, we may be permitted to bestow a passing glance upon the principles avowed and acted upon by Lord Cuninghame, in his recent Note on the Auchterarder case, as we find it reported in our excellent coadjutor the Witness. Before touching upon this matter, however, we beg our readers distinctly to notice that we make no remarks whatever upon the judgment itself. That may be right, or it may be wrong, legal or illegal-with that at present we take nothing to do. We wish to

treat with all becoming respect the judgments pronounced in our law courts; and had his Lordship been satisfied with merely pronouncing a judgment, it would for us remain uncensured, yea, even uncanvassed.

It is not, then, the judgment we at present dispute. We bow to the decision. But we confess we are not disposed to pay the same deference to the logician, as we unfeignedly do to the judge. The administrator of law is beyond our jurisdiction as reviewers, but the perpetrator of sophisms cannot claim the same immunity. Whatever may be the constitutional prerogatives of the bench, we have yet to learn that it possesses any infallibility in theology, any intuition into the motives of suitors, any instinctive cognizance of the constitution of other countries, or any inerrable acquaintance with historic facts. Had Lord Cuninghame followed the profound advice of Sir Matthew Hale to the military governor of a colony who might be required, ex-officio, to decide in civil cases- Never assign a reason for your decisions. For, although in pronouncing judgment, your own good sense, in nine cases out of every ten, will lead you to decide aright, yet, if you attempt to assign your reasons, in nine cases out of every ten, you will be wrong'-had his Lordship followed this sagacious counsel, we never would canvass the equity or the legality of his judgment. But since the reasons are set forth, as if to invite investigation, we think it derogatory, neither to the court nor the individual, that we assume our critical prerogative, and deal with them as they deserve.

There is one preliminary remark we must offer; and it is thisLord Cuninghame and we differ toto cœlo regarding the constitution

of the Church of Scotland, and the relation subsisting not only between the civil and ecclesiastical courts of the country, but also between the church and the state. He proceeds throughout on the assumption-he never even seems to fancy it is necessary to prove that the church, in all its rights and functions, is a mere civil corporation, subjected in all things to a civil control. All his illustrations and analogies, in which he is specially prolific, proceed upon this assumption. Deny this assumption, and his analogies (for the Note contains no argument) will be something like the old logicians' quidities without an entity in which they could reside.

Another assumption of his Lordship's, or rather the same in another form, which we beg leave to notice in passing, is that the church is the mere creature of the state. Now had he assumed this of the Church of England, he might possess some very strong ground in support of his allegation. For that Church is the creature of the state, in as full and literal a sense, as can be said of any corporate body in the kingdom. The Church of England never existed even for one day-no, not even in theory, but as the creature of the state. The state framed her creed, constructed her constitution, drew up her prayers, enacted her laws-in short created that Church; while, to maintain their respective relations, the civil magistrate has reserved to himself the right to interfere in every act, and in every department of her internal economy, and to mould, alter, and rule her at his will; except in some few instances where statute interposes; and in this the Church has no other immunity than is possessed by Lord Cuninghame's celebrated similitude, a corporation of tailors.'

Now, will Lord Cuninghame, or will any man for him, say that this was or is the case with the Church of Scotland? Did the state create her, in any sense which does not contain a legal fiction, or an illogical sophism, or a fanciful analogy. Is it not a historic fact, known to all who have taken the most cursory glance into her history, and admitted even by the adverse Judges in the Auchterarder case, that the Church of Scotland existed for years as a fully organized church, not only without the concurrence, but in spite of the opposition of the state? Did she not, on her own exclusive authority, and in virtue of her own inherent powers, frame her whole economy of doctrine, discipline, government, and worship? Did she not hold her courts, and exercise all the functions of a church of Christ, long before the state ever so much as recognized her existence, except in the way of persecution? And what was it, what was all that the state did when it received the

• Robertson's Report, ii. vol.

Church of Scotland into alliance with itself? Did it create her? She existed before. Did it pretend to bestow or to abridge her avowed inherent powers? Let the act that says so be pointed out. Did it even alter one jot or tittle in the whole framework of her external constitution, or internal economy ? No, verily, in no wise. Neither did the state presume, nor would the Church have tolerated, any such interference. Sooner would the men who then ruled the affairs of the Church have pined into skeletons in dungeons, than they would have surrendered the liberties of Christ's people, or betrayed the prerogatives of the Church's King. All that was done at the formation of the union between church and state, was simply this,-and although our very schoolboys used to know it, yet, as we are again driven back to the re-exhibition of elementary principles, and the re-statement of elementary facts, we must again proclaim, that the whole of what took place at the formation of our own alliance with the state, was simply and exclusively this, the state recognised the Church as she then existed, acknowledged her powers as she herself claimed and exercised them, and admitted her, in the plenitude of her freedom, in the full enjoyment of all her declared rights, of all her assumed powers, of all her heaven-derived immunities, into alliance with itself. The Church was not a conquered province, to receive laws at the hands of a conqueror. The Church was not a trembling captive, bartering its freedom for protection from a powerful oppressor. The Church was not a profance caitiff,' to sell its freedom for a mess of pottage. The Church was an independent kingdom, meeting the state on terms of perfect equality, maintaining her own inherent rights, and acting throughout in the very character of an independent party to a covenant, consulting for the advantage of both contracting parties,-both standing on the confines of their respective territories, and each acknowledging the other sovereign within its own domains.

It is nothing whatever to the point to say, that the state bestowed on the Church manses and glebes. This matter is so perfectly nugatory in the argument, that we should not deem it worthy of a moment's consideration, if it were not so frequently reiterated, as if to make it appear to contain the very essence of the question. Grant that the state did bestow manses and glebes, what is that to the purpose, unless it can be proved also, that the Church surrendered her liberties as their price? But did the state indeed bestow these manses and glebes? We ask the question on the basis of statute and history, not of any more recondite principle. In answering our own question, we beg leave to quote a singular statute of the Scottish Parliament, and we give it with

the comments of the late Lord President, (Hope,)*— The very first act on our statute book,' says his lordship, is a very remarkable one, and worded in a very remarkable manner. It is the first act of the first Parliament of James the First, which is worded with the laudable brevity and precision of our Scots acts of Parliament. "In the first [place], to the honour of God and halie kirk, it is statute and ordained, that the halie kirk joyes and bruke, and the ministers of it, their auld privileges and freedomes. And that nae man let them," (i. e. hinder or molest them,) &c.

'Observe,' continues his lordship, this emphatic word, "their auld privileges." These, says the Parliament, we know both in nature and extent. They have grown up with the existence of the Church and the state past all memory. These we will acknowledge, and will uphold and protect you in. But if you attempt to exercise any new privileges, these we do not hold ourselves bound to acknowledge and protect, unless we also approve of and sanction them.'

Observe, we repeat, this emphatic word, their auld privileges;' and to mark its emphasis, we place it in italics, as his lordship has done. Observe it, and say whether the state did not acknowledge that the Protestant Church of Scotland was, so far as the state took cognizance of her, the auld kirk. It was not a new creation; the state itself being judge. It did not claim any new privileges,' nor did it surrender its auld privileges and freedomes," nor relinquish its claims to its auld' patrimony and lands. It is known to all who have merely glanced into her history, that she received her stipends and glebes not in the light of a gratuity from the state. She claimed them as her own,-herauld,' her rightful property. By reforming herself as she did, and as she was perfectly warranted to do, both by the laws of God and man, she did not consider that she had forfeited her right to her temporal possessions; and we should like to see any man attempt to prove that she was wrong. And, moreover, whatever the whole tribe of mere act and chapter lawyers may say,-men who never look deeper into the spirit, nor farther into the origin and foundation of right, than the mere letter of a statute, the time may not be so very far distant when the people of Scotland may begin to inquire into the grounds upon which the property, solemnly consecrated to God, and acknowledged to belong to the existing Church, should have been seized by secular men, and desecrated to secular purposes.

We are not unaware of the difficulty and the delicacy of the question on which we have here touched; nor have we any desire to push it farther at present. But we must be allowed to say, that

• Speech on the first Auchterarder Case, Robertson's Report, ii. 3.