On clinical education : the introductory address to the clinical session, 1871-72, at the Queens Hospital.

  • Jordan, Furneaux.
Date:
[1872]
Catalogue details

Licence: Public Domain Mark

Credit: On clinical education : the introductory address to the clinical session, 1871-72, at the Queens Hospital. Source: Wellcome Collection.

Provider: This material has been provided by The University of Glasgow Library. The original may be consulted at The University of Glasgow Library.

    348/408 (page 134)
    that it sets the justices above the law, and prevents the Court from even considering the meaning of a statute. But it plainly does no such thing. Neither does the plea of the respondents do so here. They do not dispute the right of the Court to construe the statutes, or the law. They only say, that the result of the legal exercise of this right is, that your Lordships must see it declared in the law, that, quoad the matter now at issue, our jurisdiction is ousted. In the case of Lethendy, (14th June 1839,) there was what had the appearance of an attempt by a Presbytery to exclude one of two rival presentees from ever obtaining the fruits of the benefice, even though he should be ultimately found entitled to them, by inducting his competitor; and the question turned upon the legality of an interdict by which he had endeavoured to protect this civil interest. In that peculiar case, I thought that the Court was warranted in interfering. Subsequent reflection, however, has made me doubt this ; and I am certain that I at least expressed myself far too strongly. Your Lordships may adjudicate as to any civil matter that may be implicated, even though this should imply a total separation of the temporalities from the spirituality. But this is not what is now demanded. Your Lordships are asked to go into the Pres- bytery, and to control that body as a Church court, in its ecclesiastical act. It is this redress that I think you have not jurisdiction to give. The moment that it is fixed that the act is ecclesiastical, the line seems to me to be drawn which this Court cannot pass. I hold the Court of Session to have no ecclesias- tical jurisdiction, and the Church to have it all;—and this was an ecclesiastical pro- ceeding. Not merely a proceeding by a Presbytery, but by a Presbytery acting within the sphere expressly assigned to it, as a Church court, by Parliament. In what it has done, the Church has usurped none of the powers of the civil court, and it is not pre- tended that the civil court has in itself any jurisdiction which_could have enabled it to have done those acts, even though they had been proper, if the Church had refused to perform them. An attempt has been made to limit the ecclesiastical jurisdiction of the Church, strictly, to the three precise acts—1st, Of preaching the true word; 2d, Of correcting manners ; 3dly, Of administering sacraments. A limitation which, if en- forced with the rigidness proposed, would, in the first place, supersede probably nine tenths of all that the Church has been engaged in for the last two centuries; and in the second place, if applied rationally, it would comprehend all that has been done here;— adequate provision for the religious destitution of the people being necessary both for the preaching of the true word, and for the correction of manners. The suspenders maintain, that the jurisdiction of the Court stands fixed by the judgments of the House of Lords in the two cases of Auchterarder. But I do not think so. All that was decided in the first case was, that the General Assembly had, by the Veto Act, infringed on the civil rights of a patron ; and the redress given con- sisted in merely protecting these rights by declaring the Veto Law illegal, in so far as this civil interest was concerned. This is what it is conceded that we may do now. In the second case of Auchterarder, all that was decided was, not that this Court could con- trol a Presbytery in acting ecclesiastically, but in its illegal refusal so to act. The Presbytery had refused to perform what was held to be a ministerial duty. Yet even here, the resolution not to perform it having been taken by a Church court, and there- fore being, in a certain sense, ecclesiastical, it was not set aside, but an action of damages only was found to be open to the party injured. The suspenders put extravagant cases of the Church exceeding its jurisdiction, or abusing it, and ask whether it can be maintained that the supreme civil power can afford no remedy for any usurpation or impropriety however monstrous. Extreme cases never test any principle; and this one would perhaps be sufficiently met by the easy retort of the respondents supposing some similar extravagance on the part of the Court of Ses- sion. But there is a better answer. The Court of Session is not the civil power. By a confusion of terms, rather than of thought, the suspenders perpetually speak of these two as the same; and they some- times call us the State. But we are not so. We are only a Court of law. The true civil power—that power which belongs to the nation, and is chiefly wielded by Parlia- ment—is omnipotent, and is the only universal redresser of wrong. It made the Church; and it can restrain it, or unmake it. It seems to be thought that there is no- thing between the public and ecclesiastical usurpation, except this Court. But there is surely nothing very extraordinary, in supposing a distribution of jurisdiction so judi- cious, that the whole system works well when it is worked properly; and that there is . no ordinary control given to one Court over another, but that abuse is left to be cor-