is to take pet at the refusal."[1] Are they altogether sure that their present course has not been adopted in some such spirit as this, and therefore without proper deliberation? If it be not so—if they will not avail themselves of this apology—we say without hesitation that they have been guilty of the most unaccountable rashness and absurdity, and that they will too soon be made to understand the indecorous and mischievous position in which they have placed themselves and the Church.
In approaching Parliament, they have either given up the claim to independent jurisdiction, or they have not. If they are prepared to abandon this high ground, and to acknowledge the supremacy of the civil court in the interpretation of statutes, they may no doubt obtain the abolition or modification of the law of patronage, provided they can make out a sufficient case to justify the measure. But then this would be at once admitting their error, and sacrificing their boasted independence—it would be in effect an acknowledgment that they had pertinaciously and dishonestly maintained a doctrine which now they cannot justify to Parliament or to themselves—it would be a late and ungracious submission to the civil power, but a submission which would bind them for ever. They could never again be heard to question the power of the Court of Session to define and enforce the duties imposed on presbyteries by statute: nay, their new Act of Parliament, the reward of their submission, would necessarily be subject to the construction of that Court—the charter, which they had sacrificed their theoretical independence to obtain, would not render them practically one whit more free. And then, what becomes of the case of Mr Young and his intrusion into the parish of Auchterarder? They must proceed to intrude him, for they would then have admitted that his exclusion was illegal. But, on the other hand, if they still maintain their claim to independent jurisdiction, and contend that, the interference of the Court of Session being unwarranted by the constitution, its judgment is an absolute nullity—in this case they cannot, of course, ask Parliament to repeal the existing law, because they say it is already sufficient for them, and they must therefore demand a declaratory enactment. Now, to ask Parliament to declare that a court of law is mistaken in its interpretation of statute, is to make Parliament a court of appeal—it is to confound the legislative function (jus dare) with the judicial (jus dicere)—an anomaly in constitutional law obvious to any schoolboy. They would be asking Parliament to reverse the judgment of the House of Lords, the Court of last resort—asking the House of Lords, as a branch of the legislature, to declare that it had committed iniquity in its judicial capacity. It is easier to conceive than describe the reception which such a proposal would inevitably and most deservedly meet with in that august assembly—the calm and dig-nified rebuke from the Woolsack—the withering scorn of Lord Brougham or Lord Lyndhurst—the sorrowing, commiserating, but conscientious and distinct negative of the Church's best friends, Lord Haddington and Lord Aberdeen—the manly and overwhelming denunciation, by the Duke of Wellington, of those whom he would not scruple to brand as lawbreakers and rebels. Is this a spectacle which the Church would wish to realize? Is the bare risk, the possibility of such a result, not enough to make the rashest and most reckless pause? But suppose that even this hostility might be disarmed, and this difficulty surmounted—suppose the House of Lords calmly to listen to the insolent plea, that as a court of law they have committed error, what is the nature of the statute which the Church must then obtain? To effect the avowed object of the Church, it must be different from every other in the Statute Book—it must not be subject to the interpretation of the civil court; the same law which recognises the propriety of the Church's present attitude of resistance, must constitute Church Courts their own interpreters of statutes, and must arm them with secular power to resist the encroachments of co-ordinate, or rather of what would then be rival jurisdictions. What the Church demands is not a repeal or alteration of
- ↑ Sir Roger L'Estrange
