Presbytery of Edinburgh v Magistrates of Edinburgh and Rev. C. Macdouall
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1847 |
| Year | 1847 |
| Docket Number | No. 59 |
| Date | 17 December 1847 |
| Court | Court of Session (Inner House - First Division) |
Ld, Robertson. Bill-Chamber.
Title to Sue—Church—Corporation—University—Act of Security—Stat. 1690, c. 17, and 1707, c. 6.—
THE Lord Provost, Magistrates, and Town-Council of Edinburgh are Patrons of the University of Edinburgh. They received power by the Royal Charter of King James VI., dated 14th April 1582, to elect the: professors; and this Charter was subsequently confirmed by statute of 4th August 1621, which gave and disponed to the Provost, Bailies, Council, and community of Edinburgh, ‘all liberties, freedoms, immunities, and privileges appertaining to ane free college.’
On 12th October 1847, the Magistrates and Town-Council elected the Reverend Charles Macdouall to the vacant Chair of Hebrew and Oriental Languages; and they at a subsequent meeting issued his commission.
After the election, but before the issuing of the commission, the Presbytery of Edinburgh presented a note of suspension and interdict against the Magistrates and Council, the Senatus Academicus, and Mr Macdouall, setting forth that Macdouall was a member of the Free Church of Scotland,—a body which had separated themselves from the communion of the Established Church, disowned its authority, and solemnly declared that they were not, and should not be, ‘subject in any respect to the Ecclesiastical Judicatories established in Scotland by law;’ and the Presbytery therefore prayed, that as it was illegal to elect any one not in communion with the Established Church to a Chair in the University, the Council should be interdicted from issuing the commission to Macdouall; that he should be interdicted from receiving it, and assuming the office to which he was elected; and that the Senatus should be interdicted from constituting him to the office, or recognising him as professor.
Answers were lodged for the Magistrates and Council, and for Macdouall. The latter admitted, that he was a member of the Free Church. The question at issue in this case was, the title of the Presbytery to interfere.
The suspenders pleaded, that as the Presbytery of the bounds within which the illegal act was committed, they were entitled, on a just construction of the Act 1690, c. 17, and of the Act of Security 1707, c. 6, to crave the interposition of the Court to prevent the wrong being effected. These acts were in favour of the Church, and conferred rights which the Church was entitled to enforce. The fact, that every professor must sign the Confession of Faith before them, shewed the interest of the Church to interfere. The clauses of these statutes which were relied on will he found cited in the opinions of the Judges.
The Lord Ordinary refused the interdict.∗
The suspenders reclaimed.
A presbytery within whose bounds a university is situated, has no title to apply for interdict against the patrons of the university electing a disqualified person to a vacant professorship.
∗‘This application is rested on the Acts of Parliament 1690, c. 17, and 1707, c. 6, by which certain tests are required from professors on their admission to Scottish Universities. Mr Macdouall having been elected to the professorship of Hebrew and Oriental Languages in the University of Edinburgh by the Town-Council of the city, the undisputed Patrons, the present interdict was applied for by the Presbytery of Edinburgh. The prayer of the note is directed against the Magistrates, the Senatus Academicus, and Mr Macdouall; and it calls on the Court, 1st, To prohibit the signing or delivering the commission, which, however, having already been done, cannot now be prevented; 2dly, It calls for interdict against Mr Macdouall receiving delivery of, or presenting the commission, or assuming or exercising the rights and functions of the office of professor; 3dly, Against the Senatus Academicus receiving, inducting, or admitting Mr Macdouall, or in any way acting under the commission.
‘The ground of the application is rested on the averment, that Mr Macdouall, having formerly been a licentiate of the Established Church of Scotland, became a member of the body called the Free Church, signed the Deed of Demission, and is now a licentiate or probationer in that body. Mr Macdouall states, that his present belief is, that he did not actually sign the Deed of Demission; but he does not deny that he is a member of the Free Church, one of the principles of whose constitution is to disclaim the government and discipline of the Church established by law. That this is the avowed doctrine of the Free Church, was not disputed by Mr Macdouall. The protest subscribed at the period of the constitution of that body in May 1843, expressly bears, that “any assembly constituted in submission to the conditions now declared to be law, and under the civil coercion which has been brought to bear on the election of Commissioners to the Assembly, this day appointed to have been holden, and on the Commissioners chosen thereto, is not, and shall not be deemed a lawful and free Assembly of the Church of Scotland, according to the original and fundamental principles thereof.”
‘Two questions, both of very great importance, arise,—one, Whether an individual situated as this nominee is, can be inducted into a chair in any university in Scotland; and the other, Whether, if he cannot, the complainers have any title to interfere in this form, and at this stage? To both of these questions it is necessary to attend.
‘1. When the case was first before the Lord Ordinary, and when no appearance had been made for Mr Macdouall, it seemed desirable that that gentleman should have an opportunity, if so advised, of avowing the course he meant to pursue. Had he stated, that, notwithstanding his being a member of the Free Church, it was his purpose and determination, at the proper time, and before asking admission to the office of professor, to submit himself to the government and discipline of the Church of Scotland, in terms of law, this might probably have put an end to the whole question. But on now making appearance he has not done so, and he declines to state that he has any intention of appearing before the Presbytery of the bounds, to make the acknowledgment required by the Act of Security 1707, c. 6. There is, therefore, strong ground to conclude, that, consistently with the principles of the Church to which he belongs, and with the sincerity of his profession, tested by his actual demission (whether he signed the deed or not), it is not Mr Macdouall's intention, before admission, to acknowledge and profess that he will, in the words of the Act 1707, “practise and conform to the worship presently in use in this Church, and submit himself to the government and discipline thereof, and never endeavour, directly or indirectly, the prejudice or subversion of the same, and that before the Presbytery of the bounds.” and it may be still more difficult to hold that, in the words of the Act 1690, he is a person who shall be found “submitting to the government of the Church now settled by law.”
‘Mr Macdouall was quite entitled to decline giving any assurance inconsistent with the principles of the Church to which he belongs. But the result of his declining to take the tests, and in this way adhering conscientiously to his professed views as a member of the Free Church, appears to the Lord Ordinary to be this, that he cannot lawfully be admitted to the office of professor. The provisions are imperative. It was not maintained that the Act 1707 is not a binding and existing statute. That act was passed for the security of the Protestant religion and Presbyterian church government, and it contains a provision, that the Sovereign, at his or her accession to the Crown, shall swear to maintain that settlement “of the true Protestant religion, with the government, worship, discipline, rights, and privileges of this Church, as above established by the laws of this kingdom, in prosecution of the claim of right.” Such being the case, it does not appear to the Lord Ordinary to be very important to inquire whether the acknowledgment and profession enjoined by the statute has been regularly enforced in time past or not. It was the duty, under this act, of every person appointed to a chair in a university, to make that profession and acknowledgment in the manner which the act enjoins. Any neglect to do so, from whatever cause arising, or however suitable for consideration by those entitled to inquire into the policy of the law (with which the Court has no concern), can afford no ground for...
To continue reading
Request your trial