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be that their church courts may have, as against 'their own ministers [members], the sole right to 'decide what is competent matter for church disci'pline and ecclesiastical government. And such 'bodies may consider it an objection to the purity and independence of the Established Church, that it 'does not possess such power uncontrolled. But to 'the members of the Establishment there is, on the 'other hand, the benefit of the protection which the

establishment of a church by statute implies-viz., 'that the church courts must act within the limits ⚫ assigned to them. Now, the opinion I give applies 'solely to a case in which, as here, it is distinctly 'admitted, or plainly appears, that the church cen

sures were enforced in respect of matters clearly 'falling within the discipline competent to the church, 'and of which the church courts had entire cog'nizance.'

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In like manner, Lord Medwyn remarked-' The 'Scottish Confession is declaratory of this distinction, 'and of the independence of the church courts of the 'Established Church of Scotland: but the rule is not 'confined to these. I ascribe the right of indepen'dent church government to a much higher source, and give it a much wider application: accordingly, 6 our courts respect it in the case also of all tolerated 'sects-those other religious bodies where the mem'bers submit themselves voluntarily to the jurisdiction 'of the office-bearers of their church, whatever it may


be, so that no member can come to the civil court 'with a claim of damages in a proper ecclesiastical 'question, implying a review of the proceedings of

the church court on its merits, on an allegation of a 6 wrong done by that court.' And his Lordship referred to Auchinclose's case, and Greive v. Smith, both above mentioned.

And Lord Moncrieff said-It appears to me that

'no one can have any just right to insist in such an 'action against the members of the kirk-session of 'the Established Church, or, indeed, of any church, of 'which he holds himself to be a member, when he 'reads the terms of the Confession of Faith, in sections '3 and 4 of chapter xxx., which he professes to re'ceive as the confession of his faith in this matter.' The pursuer has voluntarily 'submitted himself to the jurisdiction legally consti'tuted for dealing with such things; and I think that, in such a case, the privilege in the sentences 'pronounced, and proceedings connected with them, 'is absolute against the competency of such an action in the civil court.'


Lord Cockburn dissented from the other Judges, in so far as their opinions went to exclude action even where malice and want of probable cause was alleged, which he regarded as introducing a new and dangerous principle, and giving kirk-sessions an absolute licence of defamation;' but he also viewed the principle as equally applicable to dissenting churches. After stating, in strong terms, what would in his judgment be the effect of such a principle, he says,'Nor is this frightful system confined to the Estab'lishment. The principle, if it be followed out, must 'apply to all our Presbyterian dissenters, in their 'dealings with their own adherents, and, indeed, to 'every religious community. So that the whole coun'try is studded with little inquisitions; from whose 'fatal but irresponsible censures, no man has any 'safety except he who, in reference to such a system, 'is in what must be considered the comfortable con'dition of belonging to no religious community at all;


though even he is by no means quite secure against 'the general censorship of the Established session.' The case on the issues which were allowed, I may add, went to trial, and pretty heavy damages were awarded.

In this case, I think, the Court went rather far in excluding an issue in reference to the sessional proceedings where malice was alleged and offered to be proved; and in a later case, that of Dunbar against the Presbytery of Auchterarder, 11th Dec., 1849, where a presbytery, who had deposed a schoolmaster under the Schoolmaster's Act, on a charge of adultery found proven, and whose proceedings were reduced by the Court of Session in consequence of irregularities, were prosecuted for damages, the Court (First Division) threw out the action, but solely on the ground that it was not specifically averred that they had been actuated by malice.

And in a still later case, that of Edwards v. Begbie, &c., 28th June, 1850, † the general principle was very fully argued. This was a case where the vestrymen of an Episcopalian chapel were sued for damages for having ejected the pursuer, a brother vestryman, on charges of gross lying and falsehood, and as unworthy to take any part in the business and counsels of God's house, and got their sentence read from the pulpit. Their title to the character of a church court was much doubted. But Lord M'Kenzie-the cther Judges concurring, said,- Supposing

the defenders could be regarded as having acted 'judicially, I conceive the general rule to be, that 'judges, civil or ecclesiastical, if they, in the exercise 'of their function, commit a wrong maliciously and 'without probable cause, must be liable in damages; 'and I am aware of no exception applicable to this


case. I think, therefore, the pursuer must get his 'issue.' The defenders then proposed to allow an issue whether the facts complained of were done 'in violation of their duty as vestrymen,' etc., and this being accepted, the case went to trial, and damages were found due.

* Cases, &c., Vol. XII., p. 284.

† Ibid., p. 1134.

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Before closing this enumeration of authorities, I may refer to another, as illustrative of the remark previously made, that it is not safe to pronounce sentence of condemnation on parties who, before such sentence was issued, renounce or disown the authority or jurisdiction of the ecclesiastical court to which they were for a time subject. I refer to Dunbar v. Skinner, 3d March, 1849.* The bearing of this case on the point in hand will be sufficiently seen, without any detail of it, from the rubric given to the report: 'A clergyman of the Church of


England subscribed, under certain conditions, the 6 canons of the Scottish Episcopal Church, and sub'mitted himself to the authority of one of the bishops ' of that church. He afterwards withdrew his subscription, alleging, as his reason, that the conditions 'on which he had subscribed had been violated by 'the bishop. An ecclesiastical sentence against him · was subsequently issued by the bishop. In an ac'tion of damages at the instance of the clergyman 'against the bishop, on the ground that the sentence pronounced was libellous,-Held, 1. That the bishop 'had no authority at law to pronounce such sentence.

2. That his authority, if he ever had such, depended 'on the contract of submission by the clergyman, 'who was entitled to withdraw from it if its condi'tions were violated. 3. That the court has jurisdic'tion to try whether the contract was violated. 4. 'Defence that the act of the bishop was privileged, 'repelled, the clergyman having offered to prove a 'violation of the contract.'

These decisions, to which others might be added, show, I think

1. That sessions, proceeding according to the rules and usages of the church, and acting in the spirit which ought ever to guide them, have no cause to Cases, &c., Vol. XI., p. 945.

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fear the results of any actions of damage with which they may be threatened, but will be protected by privilege. But,

2. If they make matters of discipline the subject of conversation and remark out of session and apart from their official actings, they are liable to be dealt with as other defamers; or,

3. If they proceed to pronounce sentences, finding guilty of immoralities or other misdemeanors persons who have left their communion and disowned their authority, they expose themselves to prosecution; or,

4. If they allow themselves to be actuated by malicious motives or revengeful feelings, even their judicial actings, if proved to have originated in, or to have been influenced by these, may subject them in damages.

Against these limitations of their privilege of protection, church rulers have no right to complain. Even with these exceptions they have all they are entitled to demand; and they enjoy an equal privilege to that which the civil judges of the land (other than those of the supreme court itself) possess.

Public rebukes, or the publication to congregations. of the sentences of sessions or presbyteries, are now, at least in the ordinary run of cases of discipline, comparatively rare, but they are sometimes required; and as it is part of the law of the church that sentences of suspension or deposition of officebearers are to be intimated to the congregation at large, and that occasionally rebukes to private members are to be publicly administered,-it follows, from the principles above stated, that where such publication is ordered by a session or presbytery, both the members of these courts and the minister who is their mouth in the announcement or rebuke, being in the

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