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I cannot find law for this, and I am not ashamed to confess that I have not courage to face it. It is enacted in no statute. It is laid down in no institutional writer. It stands decided in no judgment where malice and want of probable cause is alleged. It is merely said to flow from a general principle. And this principle, as I understand it, is that Courts or Judges, acting within their jurisdiction, must be protected ; and, at any rate, that in Scotland the ecclesiastical power is little liable to be controlled by the civil.
I conceive this doctrine to have been utterly put down, in the case of ordinary Magistrates, by Robertson v. Barclay. A Justice of the Peace was there found liable to an action of damages for words of unquestionable relevancy and pertinency spoken judicially, because they were said to have been spoken maliciously. This principle was sanctioned both here and in the House of Lords; and only with this additional protection, that it was necessary to establish the malice by other evidence than that supplied by the mere language. And that Justice was accordingly tried three times, and twice convicted, and was saved at last by a final acquittal, on the failure of the proof. There was no averment of want of probable cause. And no case was ever more anxiously or repeatedly considered. Since this was the principle applied both here, and by Lord Eldon to a Justice, I do not see how it could be with held from a Sheriff, or any other inferior magistrate. Indeed, it often has been applied to them all, for redress of injuries by illegal diligence. It is generally said that diligence stands in a peculiar position. So it does in many respects, but in none quoad hoc. A magistrate in granting warrants is acting judicially; and injury by a warrant is not necessarily worse than ruin by defamation. If a Sheriff be civilly responsible for injury sustained by a warrant judicially but illegally granted, I cannot understand how he is not fully as responsible for injury sustained by his converting his judicial position into a pretence for malicious libelling.
But it is more important to observe what has been done in Church cases. I have heard no answer to the case of Maclean—where an action of damages was found to lie against a clergyman for libellous words, uttered in his Presbytery, on a subject relevant for Presbyterian observation, but uttered maliciously. The case of M‘Dougal v. Campbell (7th March 1828), was exactly on the present question. The pursuer had applied to his Kirk-Session for a certificate. It was admitted that this application made his character a proper subject of sessional discussion. The defender, who was one of the elders, stated that he was a thief. The pursuer raised an action of damages, on the ground that this assertion was not only false but malicious. The very defence now maintained was set up, and was discussed in cases, and the unanimous judgment was, that the Kirk-Session had no protection against a charge of malice. “It is no defence," says Lord Glenlee, “that he is a member of a Church Court, as that cannot justify him."
“If it be true,” says Lord Pitmilly, “that this man expressed previous ill will, and if, in pursuance of this, he made his character of an elder a cloak to make this accusation falsely, I should hesitate very much to say that we could not entertain the action.” “No doubt,” says Lord Alloway, “this Court has no right to interfere with ecclesiastical affairs. No such thing, however, is attempted here ; but the question is merely, whether, the party having made use of his character as a cloak to defame, this Court can award damages ? I think this summons is sufficiently relevant, but I have no objections to see a specific condescendence." And the Lord Justice-Clerk was of the same opinion.—And observe the case of Auchincloss, in 1793, reported by Baron Hume (p. 595). It seems to me to be a fac-simile of the present question. A Burgher minister was deposed for immorality by his Presbytery, whose sentence was confirmed by the Synod. Though the sentence proceeded chiefly on what appeared to be his own confession, the deposed raised an action of damages against eight members of the Presbytery, on the statement that they had engaged in a conspiracy to ruin him, and had wrung the apparent confession from him by threats and false hopes, when he was in weak health and spirits. The very defence now set up must have been insisted upon ; because the Lord Ordinary (Braxfield) sustained it, and assoilzied, “In respect he does not consider it competent for this Court to review the proceedings of associate congregations, commonly called Burghers, when sentences are pronounced by them in their ecclesiastical character: Therefore, sustains the defences," etc. But the Court rejected this principle, or rather its application. “At advising,” says Baron Hume, “the Judges were generally of opinion that the defenders were answerable, if it could be shown that, though made in a judicial form, the charge against the pursuer was truly a calumny, and was made and prosecuted in a malicious spirit. But all agreed that the pursuer had not condescended relevantly," etc.
I cannot reconcile the plea of the defenders with these authorities. There is not said to have been any conspiracy here ; but conspiracy is not worse than wilful falsehood, malice, and the total absence of probable cause; and even the conspiracy was practised there judicially ; which single fact is said to cover up everything from the cognisance of this Court.
Nor can I forget the conflicts between the Civil and Ecclesiastical Courts a few years ago. Some of our number thought that this Court had no legal control over the ecclesiastical tribunals. But they were found wrong, and the general legal result was ascertained to be, that wherever patrimonial interest was involved, though even incidentally, there the Civil Court could interfere ; and could interfere, even by controlling the ecclesiastical proceeding. The independence of the ecclesiastical jurisdictions was found to be no bar to the patrimonial correction of the civil tribunals. This principle is the key, and the only key to the whole of these memorable decisions. I was one of those who resisted them before they were pronounced. But this does not make it the less my duty to give full effect to the principle then so solemnly established.
Now observe how this principle was applied in the action of damages raised by the presentee against the Presbytery of Dunkeld. That action was rested on the fact that the Presbytery had improperly refused to take the pursuer upon trial. The answer was, that this was done judicially ; done as an official act by the Presbytery as such ; entitled and bound to exercise its independent judicial discretion. But as the refusal was held by the civil Court to have been illegal, the claim for damages was submitted to a Jury on an issue, which merely asked whether the Presbytery had "wrongfully refused to take trial of the pursuer's qualifications.” Now, the refusal was wrongful, solely because, in the opinion of the civil Court, it was illegal. And is it not illegal in a Kirk-Session to injure a party by making its office a mere cover for malicious libel ? The circumstance that the presentee had perhaps lost an office by the illegal act, whereas, here, the pursuer has only sustained injury in his feelings and reputation, proceeds on a mistake. The summons sets forth that besides injury to his feelings the pursuer has sustained patrimonial loss. But truly this circumstance is perfectly immaterial. There is injury in both cases, and nothing depends on its nature. However, it so happens that after all the presentee's actual loss had been paid for, he claimed and got damages separately for his injured feelings. The verdict first gave him several hundred pounds for the supposed loss of stipend, and then £1500 as solatium and damages. The issue demanded, and the verdict gave, something for mere solatium. There was no imputation there of malice. It was a mere adherence to an illegal view of their duty that constituted the wrong. Yet damages were given. How, consistently with that proceeding, the corresponding part of the present action can be found irrelevant, passes my comprehension.
I have not overlooked the 30th chapter of the Confession of Faith. I there see (what I never doubted), “that church censures are necessary for the reclaiming and gaining of offending brethren,” etc., and that“ for the better attainment of these ends, the officers are to proceed by admonitions, suspension from the Sacrament of the Lord's Supper for a season, and by excommunication from the Church, according to the nature of the crime, and the demerit of the person.” But I see nothing that entitles the Church officers to proceed by wilful defamation, nor according to their own malice. I further see it announced, that the “Lord Jesus, as King and Head of His Church, hath thereto appointed a government in the hand of church officers, distinct from the civil magistrate." And I remember that it was on this chapter, and chiefly on these words, that the incompetency of the Civil Court to interfere with the ecclesiastical jurisdictions was maintained in the cases I have referred to. But this application of the Confession failed ; and the civil power not only checked the ecclesiastical, but made the church officers repair injury done by their judicial wrongs, even where the wrong consisted in mere illegality. It humbly appears to me that your Lordships' opinions amount to a direct reversal of the principle of these judgments. I am aware that this is not what your Lordships mean; but I suspect that it is the only construction that lawyers can put upon what you are doing.
of said the Kirk that the
The Court disallowed the first issue.
The other issues against the Kirk-Session, as finally adjusted, were as follows:
“It being admitted that the pursuer is assistant schoolmaster of the parish of Blairgowrie, and that the defenders are minister and elders and members of the Kirk-Session of the said parish; and that at a meeting of said Kirk-Session, held on or about the 30th May 1848, the minute set forth in the schedule hereunto annexed, was recorded by the defenders in the books of the said Kirk-Session, and that, with the sanction, and by authority of the Kirk-Session, the Rev. Archibald Ochiltree Greig, defender, did read and publish the said minute from the pulpit of the parish church on Sunday, the 4th day of June 1848, to and in the hearing of the congregation then and there assembled for public worship:
“1. Whether the said minute, or any part thereof, so published, is of and concerning the pursuer, and does falsely and calumniously represent that, although the decision of the Church Courts had been given in favour of the pursuer, yet nevertheless he was guilty of the charges the Kirk-Session had preferred against him; that the pursuer's restoration to the enjoyment of sealing ordinances would be injurious to the discipline of the Church, and to the promotion of true religion ; that the pursuer was an evil doer; and that he was not a person who walked in the way of truth and holiness, but, on the contrary, was one who deviated from the right path ; and whether the said minute was published as aforesaid by the defenders, in violation of their duty, and to the loss, injury, and damage of the pursuer ?”
“It being admitted that a fund, known as the Barty Mortification, exists in Blairgowrie, Rattray, Bendochy, and Kinloch, for the education in the parish school of each of these parishes of a certain number of poor children, and that this fund is administered by a local board at Blairgowrie, under the Guildry Incorporation of Perth, which is the body
invested with the general control and management, and that the selection of the children who are to participate in the benefits of this fund within the parish of Blairgowrie, is entrusted to the defenders as the Kirk-Session of the parish :
“2. Whether the defenders, on or about the 14th day of December 1847, drew up, and recorded in their minute-book, the minute set forth in the schedule hereunto annexed, and sent an extract or copy thereof to the local board of said Mortification, or to W. S. Soutar, their clerk, for their information ; and on or about the 1st and 3d days of February 1848, drew up and recorded other two minutes, set forth in the schedule hereunto annexed, and sent extracts or copies thereof to the Guildry Incorporation of Perth, as trustees of the said Mortification, or to Thomas, their clerk, for their information, or to the said local board, or their said clerk, for their information; and whether the defenders in said minute, or one or more of them, represented that the pursuer was unfit for, and neglected, the duties incumbent on him as teacher of the parish school of Blairgowrie ; and whether the said minutes were false and calumnious, and were wrongfully published as aforesaid, by the defenders, to the loss, injury, and damage of the pursuer ?”
Certain issues directed against Mr. Greig, for acts done by him in an individual capacity, were also approved of; but the Court were of opinion that they should not be mixed up with those referring to the proceedings of the Kirk-Session, and directed that the cases should be tried separately.
GEORGE MONRO, S.S.C.-CLASON & CLARK, W.S.-Agents.
JULY 5, 1851.
FIRST DIVISION.—Lord Colonsay. Bill-Chamber.
Church-Jurisdiction.—A minister who had been deposed by the General Assembly on the ground of immoral conduct, presented a note of suspension against the sentence being carried into effect, on the grounds that the libel on which the sentence proceeded was defective in the instance, that evidence had been improperly rejected, and that the procedure before the Presbytery had been generally irregular and oppressive. The Court'holding that the offences commited by the suspender were proper for the cognisance of the Church Courts, and that such being the case, the Civil Court had no right either to control the Church Courts in their procedure or to review their sentence on its merits—refused the note,
In April 1850, the Rev. John Cumming, minister of Fraserburgh, reported to the Presbytery of Deer the circulation of a fama clamosa against Dr. John Lockhart, his assistant and successor, that he had