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brought on this ground alone, it probably would not have been sent to trial; and that no proof of any grudge or act showing malice had been offered. The jury gave, under his directions, a verdict for the defender.
In a late case, that of Sturrock v. Greig and others, 15th Feb., 1849, the Court went even farther than in some of the previous cases, and excluded part of a libel which claimed damages for ecclesiastical proceedings and sentences, even where an allegation was made that these had been originated and carried on maliciously and without probable cause. It was an action at the instance of an assistant schoolmaster against the parish minister and elders. The grounds of the claim for damages on the part of the schoolmaster were-1st, That in certain sessional proceedings against him minutes were recorded, and that in a petition by the session to the General Assembly statements were made, setting forth that there existed a fama against him that he had been guilty of fornication, and representing him as guilty of falsehood and of conduct unbecoming the character of a christian, of a communicant, and of a teacher of youth, and that a sentence had been pronounced, suspending him from church privileges, by all which he had been greatly injured: 2d, That a minute of the session, containing statements injurious to the pursuer's character, and assigning reasons why, notwithstanding the decision of the superior church courts reversing their sentences against him, the session regarded him as guilty, and considered that his restoration to the enjoyment of sealing ordinances would be injurious to the discipline of the church and to the promotion of true religion, was read from the pulpit by the minister with the sanction and by the authority of the session: 3d, That an extract of one of the sessional minutes had been
* Cases in Court of Session, New Series, Vol. XI., p. 1220.
sent to a local board, having the charge of a mortifi cation for defraying the education of poor children, some of whom were taught by the pursuer, as a reason for the session's declining to fill up a vacancy in the number of children under his charge. The Court distinguished between these different charges, and dealt with each in a different way. The first they regarded as relating to sentences pronounced and proceedings taken by the session in a proper case of discipline duly brought before it and within its competency and province as a church court; and, although it was alleged that the statements were made maliciously and without probable cause, they decided that no action of damages could lie against the members of session in respect of these, and refused to send an issue to a jury. In regard to the second, they viewed it as not ex facie a case of privilege, and sent an issue to the jury to say whether the publication from the pulpit was made in violation of duty and to the pursuer's injury. And as to the third, they treated it as an ordinary case of defamation, and authorised an issue whether the minute was false and calumnious, and whether it was wrongfully published to the pursuer's injury."
Here, then, it will be seen, a clear distinction was taken between (1) sessional acts in the ordinary course of a case of discipline,-(2) sessional conduct out of that course, publishing statements to the party's prejudice after he had been acquitted by the superior judicatories, and (3) communications made on the subject of his character to third parties. For the first, the session were found not answerable; for the second, liable in damages only if in violation of duty; and for the third, simply if false, calumnious, and wrongful.
This case related to the conduct of a kirk-session of the Established Church; and in the consideration of it, the Judges were led to speak more directly in re
ference to the powers vested in the church courts by the statutes establishing the Church of Scotland. But many of the expressions used show that the law, as expounded, was considered equally applicable to dissenting church courts. The Lord Justice-Clerk said -We are not now discussing the right principles of 'church government, according to the Scriptures, 'neither are we to consider the extent of the autho 'rity over the members of a dissenting establishment, 'flowing from the principles sanctioned among 'themselves, and submitted to by the act of joining 'the same. I avoid the question as to whether simi'lar protection extends to their church courts, solely 'because that is not the case before us-but not from 'any doubt now entertained by me that they may 'claim the same. I take simply the fact that the 'Church of Scotland, as established by law, has 'adopted; and that statute has declared and pro'claimed, that according to the Word of God, as in'terpreted by the Church of Scotland, its church courts are invested with the right and duty of dis'cipline over its members; and that such right flows 'from the divine institution of the christian ministry,
and of the presbyteries which the Church of Scot'land holds to be, although not of divine prescription, as the only form of church government, but as 'founded on and as agreeable to the Word of God.
'No one need be, unless he chooses, a member of 'the Church of Scotland, or of any particular sect, in 'the constitution of which there are things to which 'he objects. If he joins the same- -and if I under'stand the statements here, the pursuer did so deliberately, after being employed in the teaching of youth, ' and therefore of mature years-then he must take its 'constitution as he finds it. He must be subjected to 'the authority and discipline of the church, and he 'must be content to acknowledge the authority under
'which that discipline is exercised to be of divine in'stitution, and bestowed by the great Head of the 'Church on the office-bearers of the church over 'him-if such shall be the view taken of his sub'jection to church discipline by the laws of the Church ' of Scotland.
'No doubt all this is a very grave and weighty question-one of the most serious with which legisla 'tien or the arrangements of voluntary churches have 'to deal with. No doubt such views of the origin ' and character of the authority of the church over 'its members, whether an established or dissenting 'church, entrust much to the weakness and frailties of human nature. But if the church which the in'dividual has joined, being the Church of Scotland, ' has proclaimed and announced its views of scripture 'on this subject, and placed its members under the 'discipline of the church, by reason and in respect of 'the authority bestowed on the church acting through 'its office-bearers by divine ordination and appoint'ment; then, according to that very theocracy, 6 so established, the member of the church must ، acknowledge and submit to the authority under 'which the discipline is exercised over him. In an 'establishment he may have this advantage, that the 'grounds on which discipline can be exercised over 'him may be defined by, or must be consistent with 'law; and whether some think this interferes with 'the spiritual liberty of the church, at least in this 'question it removes one great source of objection to
the plea contended for by the defenders, and affords 'the members of the Established Church a protec'tion which it may be-I only say it may be-the con'stitutions of voluntary churches may not have given, 'as clearly as they have established the subjection of 'their members to ecclesiastical discipline.' 'We have to deal only with a party who has delibe
'rately by choice, we must presume, and still more 'by the acceptance of an office, but still voluntarily, 'subjected himself to the discipline of the Church of 'Scotland, whatever that may be.'
Subsequently, his Lordship said-'From this, I 'think it necessarily follows that, in matters clearly 'within the cognizance of church officers or courts, as 'subject to church censures (I keep to the exact case 'before us, and the law within the statute), when the 'church judicatory is thus exercising the government
so entrusted to it, its judicatories and officers are 'not amenable to the civil courts of the country in 'damages for alleged wrong. They have been trusted 6 as a separate government. The declaration of the authority under which they act, assumes that it must 'be separately administered-free from control-free 'from subjection or subordination to civil tribunals.
'The inquiry into their motives-which is the very essence of the pursuer's case-by other civil courts— " it may be by men not even of the church-is absolutely repugnant to the freedom which must belong 'to a church in matters of discipline.
To any party alleging wrong by such courts, the 'answer, then, is plain-if these courts were acting wholly within the matter committed to them, they are distinct and supreme—and the authority under 'which they sit, excludes any inquiry into their mo'tives by civil courts. But hardship, in truth, there 'is not, whatever the party may feel, for he has 'chosen to subject himself, in all matters which can 6 come within the discipline of the church, to the 'Church of Scotland as established by law; and the ' authority of that church in cases falling within discipline, has been announced and fixed.
The view that may be taken of this matter by independent religious bodies, unless their constitution is very express, may go much farther; and it may