Presbytery of Auchterarder v Earl of Kinnoull
| Jurisdiction | Scotland |
| Judge | Ld. Fullerton |
| Judgment Date | 03 May 1839 |
| Docket Number | No. 150 |
| Court | Court of Session (Inner House - First Division) |
| Date | 03 May 1839 |
Ld. Fullerton, Whole Court.
Church—Jurisdiction—Patronage—Acquiescence.—
The first Parliament of James VI., then a minor, was held at Edinburgh, 15th December, 1567, by James, Earl of Murray, Regent of Scotland. By statute 2, of that Parliament, it was enacted, in ratification of an act passed in 1560, abolishing Popery, that ‘the Bischope of Rome, called the Pape, haif na jurisdiction nor authoritie within this realme in ony time cumming.’ By statute 3, another act of the year 1560 was ratified, by which previous statutes were rescinded as ‘not agreeing with God his word,’ and were declared to be ‘abolished and extinguished for ever, in so far as any of the foresaids acts are repugnant, and contrarie to the Confession of Faith and Word of God foresaid, ratified and approved by the Estates in this present Parliament.’ To this statute was subjoined at length, and in distinct articles, the ‘Confession of Faith and Doctrine, believed and professed by the Protestantes of Scotland, exhibited to the Estatis of the same in Parliament, and by their publick votis authorized as a doctrine grounded upon the infallible Word of God.’ In art. 25, entitled ‘of the civil magistrate,’ there was inserted an acknowledgment of the deference due to persons in authority, and this declaration:—‘Mairover to Kings, Princes, Rulers, and Magistrates, we affirm that chiefly and most principally the conservation and purgation of the Religioun appertaines, that not only they are appointed for civil policy, but also for maintenance of the true Religion, and for suppressing of Idolatry and Superstition whatsoever. As in David, Josaphat, Ezechias, Josias, and others, highly commended for their zeal in that caice, may be espyed. And therefore we confess and avow, that sik as resist the supreme power, doing that quhilk appertaines to his charge, do resist God his ordinance: and therefore cannot be guiltless.’
The acts of the Estates in 1560, were passed in the reign of Mary, and the ratification of them in 1567 was considered necessary, in consequence of the Queen having declined to adhibit her consent to them. A discussion had taken place, in the interim, between those acting for the Reformed Church, on the one hand, and Queen Mary's advisers on the other, in the course of which a message was sent from the General Assembly of the Church to the Queen, in 1565, containing this passage: ‘Our mind is not that her Majesty, or any other patron, should be deprived of their just patronages, but we mean, whensoever her Majesty, or any other patron, do present any person into a benefice, that the person presented should be tried and examined by the judgment of learned men of the Church, such as are the present superintendents, and as the presentation unto the benefice appertains unto the patron, so the collation by law and reason belongs unto the Church; and the Church should not be defrauded of the collation no more than the patrons of their presentation; for otherwise, if it be lawful to the patrons to present whom they please, without trial or examination, what can abide in the Church of God but mere ignorance?’
By 1567, c. 5, mass was abolished. By 1567, c. 6, an act was passed declaring ‘the ministers of the blessed Evangel of Jesus Christ, quhome God in his mercie hes now raised up amangs us, or heirafter sall raise, agreeing with them that now lives, in doctrine and administration of the Sacraments, and the peopil of the realme that professis Christ, as he is now offered in his Evangel, and dois communicate with the halie Sacraments (as in the reformed Kirkes of this Realme ar publicklie administrat), according to the Confession of the Faith, to be the trew and halie Kirk of Jesus Christ, within this Realme, and decernis and declaris, that all and sindrie, quha outher gainsayis the word of the Evangel, received and appreved, as the heads of the Confession of the Faith, professed in Parliament of befoir, in the zeir of God, 1560 zeires, As alswa specified and Registrat in the actes of Parliament, maid in the first zeir of his Heinesses Reigne, mair particularlie dois expresse, ratified alswa and appreved in this present Parliament; Or that refusis the participation of the halie Sacraments, as they ar now ministrat; to be na members of the said Kirk, within this realme, and trew Religion, now presently professed, Sa lang as they keep themselves sa divided, from the societie of Christ's body.’
By 1567, c. 7, an act was passed, entituled ‘Admission of Ministers: of Laick Patronages.’ It was thereby enacted ‘That the examination and admission of ministers, within this realme, be only in the power of the Kirk, now openlie and publicly professed within the samin: The presentation of laic patronages alwaies reserved to the just and auncient patrones. And that the patroun present ane qualified persoun within sex monethes (after it may cum to his knawledge, of the decease of him quha bruiked the benefice of before), to the superintendent of thay parties quhair the benefice lyes, or uthers havand commission of the kirk to that effect; utherwaies the Kirk to have power to dispone the samin to ane qualifyed person for that time. Providing, that in caice the patron present ane person qualified to his understanding, and failzeing of ane, ane uther within the said six moneths, and the said superintendent, or commissioner of the Kirk, refusis to receive and admit the person presented be the patron, as said is; It sall be lesum to the patron to appeale to the superintendent and ministers of that province quhair the benefice lyis, and desire the person presented to be admitted, quhilk gif they refuse, to appeale to the General Assemblie of the haill realme, be quhome the cause beand decyded, sall take end, as they decerne and declair.’
In 1560, the First ‘Book of Discipline, or the Policie and Discipline of the Church,’ was prepared by a committee of ministers, of whom John Knox was one. It described ‘vocation’ as consisting in ‘election, examination, and admission;’ and it declared that ‘it appertaineth to the people and to every several congregation, to elect their minister.’ This First Book of Discipline was never finally ratified and approved by the State, as well as by the Church. The Second Book of Discipline, ‘or heidis and conclusions of the Policie of the Kirke,’ was framed in 1578, and was agreed upon in the General Assembly of that year, and engrossed in the records of the Assembly in 1581. Andrew Melville was one of the persons who took a leading part in preparing it. The first chapter of that book sets forth (§ 1.) the various senses in which the words ‘The Kirk of God’ may be used, including those ‘that exercise spiritual function amongis the congregation of them that profess the truth.’(§ 2.) ‘The kirke in this last sense hes a certain power grantit by God, according to the quhilke it uses a proper jurisdiction and government, exerciseit to the comfort of the hole kirk. This power ecclesiasticall is an authoritie grantit be God the Father, throw the Mediator Jesus Christ, unto his kirk gatherit, and having the ground in the word of God; to be put in execution be them, unto quhom the spirituall government of the kirk be lawful calling is committit.’ (§ 3.) ‘The policie of the kirk flowing from this power is an order or forme of spirituall government, quhilk is exercisit be the members appoyntit thereto be the word of God; and therefore is gevin immediately to the office-beararis, be quhom it is exercisit to the weile of the hole bodie,’ &c. (§ 4.) ‘This power and policie ecclesiasticall is different and distinct in the awin nature from that power and policie, quhilk is callit the civill power, and appertenis to the civill government of the commonwealth,’ &c. (§ 5.) ‘For this power ecclesiasticall flowes immediatlie from God, and the Mediator Jesus Christ, and is spirituall, not having a temporall heid on earth, but onlie Christ the onlie spirituall King and Governor of his kirk.’ (§ 7.) ‘Therefore this power and policie of the Kirk sould leane upon the word immediatlie, as the onlie ground thereof, and sould be taine from the pure fountaines of the Scriptures, the Kirk hearing the voyce of Christ, the onlie spirituall king, and being rewlit be his lawes.’ (§ 8.) That Kings, princes, &c., ought not to usurp dominion in the spiritual government of the Kirk, but should be called servants, &c. ‘For it is Christis proper office to command and rewll his Kirk universall, and every particular Kirk, threw his spirit and word, be the ministrie of men.’ (§ 9.) ‘Notwithstanding, as the ministeris and uthers of the ecclesiasticall estait are subject to the magistrat civill, so aucht the person of the magistrat be subject to the Kirk spiritually, and in ecclesiasticall government. And the exercise of both these jurisdictiones cannot stand in one person ordinerlie. The civill power is callit the power of the sword, and the uther the power of the keyes.’ (§ 14.) ‘The ministers exerce not the civil jurisdictioun, bot teich the magistrat how it sould be exercit according to the word.’
The third chapter of this Book is entituled ‘How the persones that beir ecclesiasticall functiones are admitted to thair office.’ It contains the following articles:—(§ 1.) ‘Vocation or calling is common to all that sould beir office within the Kirk, quhilk is a lawfull way, be the quhilk qualifiet persones are promotit to any spirituall office within the Kirk of God; without this lawfull calling it was never leisum to any person to medle with any function ecclesiasticall. (§ 4.) This ordinair and outward calling, hes twa parts election and ordination. Election is the chusing out of a person or persons maist abile to the office that vaikes, be the judgment of the eldership, and consent of the congregation, to whom the person, or persons beis appointed. The qualities...
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