Courts.

It is within the jurisdiction of every competent court to entertain and decide upon a plea of insanity in bar of trial, equally with a plea of insanity at the time the alleged offences were committed, or any ordinary defence upon the merits. What the Presbytery do or fail to do in these respects will be subject to review by the Synod and General Assembly. If the Church Courts exceed their jurisdiction we may interfere to correct them. But we are not to presume, beforehand, that there will be such excess. How the matter might stand if, throughout the whole procedure, the individual libelled had been notoriously an idiot or a maniac, utterly incapable of knowing what was going on, and the Church Courts, successively, refused to allow that incapacity to be inquired into, I shall not presume to say. The question in such a case might come to be whether the church courts could be said to have had a party before them at all, whose civil rights could be affected through their ecclesiastical sentence. It will be time enough to deal with a question of that sort when it arises. The case here is very different. The complainer, when in a sane state, was served with a libel, and lodged defences. The plea that he had become insane has been as yet supported only by certificates, which are not legal evidence of their contents. These certificates do not bear, nor was it explicitly offered to be proved, that the alleged insanity is such as to incapacitate the complainer from giving instructions for his defence. No list of witnesses was tendered by whom the objection was proposed to be proved; and all that the Presbytery have hitherto done is to hold that there has been nothing, as yet, put before them which ought to prevent them from going on with the case. In this they may have exercised a sound or an unsound discretion. But they were entitled to exercise their discretion; and for the way they have done so they are amenable only to their ecclesiastical superiors. Whether, in point of law, civil or ecclesiastical, insanity bars all procedure on a libel of this kind to which the party has pleaded, or whether it may go on, with or without a curator to conduct the defence, I shall not presume to say. Neither shall I inquire, until the point arises, what would be the effect of an absolute refusal to entertain or consider a plea of insanity in bar of proceedings terminating in a final sentence which necessarily affected or took away the complainer's civil rights. It is enough that, as the case stands (whatever may occur hereafter), there has been as yet no excess of jurisdiction requiring and entitling us to interfere.

THE COURT pronounced the following interlocutor:-" Adhere to the Lord Ordinary's interlocutor submitted to review, and refuse the desire of the note: Find additional expenses due, and remit," etc.

LINDSAY & PATERSON, W.S.-W. & J. Cook, W.S.-Agents.

JUNE 29, 1870.

THE REVEREND WILLIAM FERGUSSON WIGHT, Complainer.—Sol.-Gen. Clark-Mair-J. Gibson,

PRESBYTERY OF DUNKELD, AND GENERAL ASSEMBLY OF THE CHURCH OF SCOTLAND, Respondents.-Lee-Kinnear.

SECOND DIVISION.-Lord Mackenzie. Bill-Chamber.

Church, Courts of Jurisdiction-Ecclesiastical Offence-Suspension.—A minister of the Established Church was served by his Presbytery with a libel charging him with "fornication, as also indecent and scandalous familiarity by a minister of the gospel with a woman." He pled guilty to "scandalous familiarity with a woman," but denied fornication or indecent familiarity. The Presbytery, in February 1870, accepted his plea, and suspended him for six months. On the petition of five of his elders, who had not appeared in and were not parties to the proceedings before the Presbytery, the General Assembly, held in May 1870, found that the proceedings of the Presbytery in accepting the plea without disposing of the charges in the libel were irregular, and ordained them to proceed with the libel. The minister presented a suspension of this judgment of the Assembly, on the grounds (1) that it was incompetent for the petitioners, who were not parties to the proceedings of the Presbytery, to apply to the Assembly by petition; and (2) that having been tried and sentenced by a competent Court, and undergone more than one-half of his sentence, the Assembly exceeded their jurisdiction in ordering him to be tried again on the same libel. Held that the proceedings complained of were within the exclusive spiritual jurisdiction of the Church Courts, and could not be reviewed by the Court of Session.

This was a note of suspension and interdict at the instance of the Rev. Mr. Wight of Auchtergaven to suspend certain judgments of the General Assembly of the Church of Scotland, and interdict the Presbytery of Dunkeld from carrying them into effect.

The circumstances were thus stated by the Lord Ordinary (Mackenzie):-"The leading facts stated in the note of suspension and interdict for the complainer, who is minister of the parish of Auchtergaven, in the Presbytery of Dunkeld, are to the following effect:-On 14th December 1869 the Presbytery of Dunkeld served a libel upon the complainer, in which he was charged with 'fornication, as also indecent and scandalous familiarity by a minister of the gospel with a woman, to the disgrace of the sacred profession of a minister.' On 30th December 1869 the complainer lodged answers, in which he objected to the relevancy, and, on the merits, pleaded not guilty; and on 4th January 1870 the libel was found relevant, and a committee of the Presbytery appointed to confer with the complainer, and to endeavour to bring him to a confession. This committee dealt with the complainer, and he acknowledged, in regard to the charges in the libel, that he had been guilty of that part of the alternative charge which accused him of

scandalous familiarity with a woman, unbecoming the character of a minister of the gospel; expressly denying, however, on soul and conscience, fornication or indecent familiarity, and he also declared his deep contrition for having so acted, and his willingness to submit himself to the censure of the Presbytery. This was reported to the Presbytery, and on 1st February 1870 the report of the committee was taken into consideration, and the complainer being at the bar, pleaded guilty to the charge of scandalous familiarity as libelled. The Presbytery thereupon, by a majority, received the complainer's acknowledgment without proceeding further in the prosecution of the libel, suspended him from the discharge of his ministerial duties for the period of six months, and admonished him, and fixed the amount to be paid to an assistant to discharge the duties of the cure during the said period at £55. The complainer avers that intimation was also made to him that the libel quoad ultra had been abandoned. He also avers that no appeal or complaint having been taken to the Synod, the sentence and judgment of the Presbytery, 'by the laws and practice of the Church became final;' and that he has, in accordance with the terms of his sentence, performed no ministerial duty since the date of his suspension, and has paid to the clerk of the Presbytery the foresaid sum of £55 for the assistant who is discharging the duties of the cure. The complainer further avers that a petition was presented at the meeting of the General Assembly of the Church of Scotland, held in May 1870, by five elders of the parish of Auchtergaven, who had not appeared in and were not parties to the proceedings before the Presbytery, in which they prayed the General Assembly to take the foresaid judgment of the Presbytery into their consideration, and thereafter to do in the premises what should seem right and just in the interest of religion and morality for the parish and church; that on 24th May, the petition having been a second time called, counsel for the complainer objected to its competency and was heard, and that the General Assembly found that the proceedings of the Presbytery are alleged to have been tainted by irregularities;' 'that, in the special circumstances alleged, the matter has been properly and competently brought under the notice of the General Assembly,' appointed intimation to the Presbytery, ordained them to appear at the bar on 27th May, and continued the cause to that day; that on 27th May the cause was remitted to a committee; and that on 30th May 1870, parties having been heard, the General Assembly found that the proceedings of the Presbytery of Dunkeld, in accepting a certain acknowledgment by Mr. Wight, as a confession of guilt, and in sentencing him to punishment thereupon, without disposing of the charges in the libel which they had served on Mr. Wight, to both of which Mr. Wight pleaded not guilty, were, on the face of the said proceedings themselves, irregular, contrary to the laws and practice of the Church, and altogether null and inept; ordain the said Presbytery now to proceed forthwith in the discharge of the duties undertaken by them in beginning the said process against a minister of the gospel, and that in conformity to the laws of the Church,' and reserved to the complainer 'his whole objections and pleas to the said libel, or such other

proceedings as the Presbytery may adopt.' On this statement the complainer prays that the judgments or deliverances of the General Assembly of the 24th and 30th May 1870 be suspended, and interdict granted against the Presbytery proceeding, in accordance with these judgments, to revive or reopen the process of libel served by the Presbytery upon the complainer."

The complainer pleaded—(1.) The complainer having tendered a proper plea to part of the charge preferred against him in the libel, and such plea having been accepted by the Presbytery, and judgment having been pronounced, and sentence passed upon him, without complaint or appeal, and he having submitted to said sentence and undergone the greater period of the term of suspension, it is incompetent for the Presbytery to proceed to try him again upon the same libel, or for alleged offences covered by that libel. (2.) It was ultra vires of the General Assembly, according to their own constitution and laws as an Ecclesiastical Court, upon the terms of, and form of proceeding in, the petition of the elders of Auchtergaven presented to them, to take the same into consideration, and to direct the said Presbytery of Dunkeld to reopen the case against the complainer. (3.) The complainer having after libel for alleged offences undergone trial, and received sentence of a competent Court, and the judgment of that Court become final, it is contrary to the law of Scotland that he should be tried again before that Court for the same alleged offences. (4.) The said deliverances of the General Assembly, which are in their manner and operation in violation of the constitution and laws of the Church and the laws of the realm, commit an infringement of the complainer's civil rights, and are in excess of the powers of the Courts of the Church, and unjust and oppressive, and they ought to be suspended by the Supreme Civil Court and the persons defending the same ought to be found liable in expenses to the complainer.

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The Lord Ordinary pronounced this interlocutor:-"Having considered the note of suspension and interdict, and heard counsel thereon, and on the caveat lodged for the respondents, the Rev. George Ritchie and others, as representing the General Assembly of the Church of Scotland, refuses the note, and finds the complainer liable in expenses," etc.1

1 "NOTE. (After the narrative of the facts given above)-It was not disputed by the complainer that the offence with which he was charged was an ecclesiastical offence, and that it was properly brought before the Presbytery against him. The General Assembly is the Supreme Ecclesiastical Court in Scotland. The judgments complained of were therefore pronounced by the Supreme Ecclesiastical Court on a person subject to their jurisdiction in a cause strictly ecclesiastical. The complainer prays for suspension of these judgments, and interdict against their being carried out; and the grounds on which he does so are, that the proceedings before, and the sentence of the Presbytery were at an end and final; that he has suffered nearly the whole of the punishment imposed, and that no man was bound to thole an assize twice; that the elders on whose petition the General Assembly proceeded were not parties to the libel before the Presbytery, and made no appearance there; that there was no process before the General Assembly; and that the judgments and proceedings of the General Assembly were in excess of their jurisdiction, grossly irregular, and contrary

The complainer reclaimed, and argued ;-(1) The petitioners not having been parties to the proceedings in the Presbytery, and, separatim, not having dissented or appealed either to the Synod or the Assembly from the judgment of the Presbytery, their petition to the General Assembly was incompetent. (2) The complainer having been tried and sentenced by a competent Court, and having undergone the greater part of his sentence, the Assembly exceeded their jurisdiction in ordering him to be tried again on the same libel. No one was bound to thole an assize twice. It was competent to the Presbytery to accept the complainer's confession to part of the libel, and abandon the remainder. The complainer's plea was a good plea. There was no distinction between "indecent" and "scandalous" familiarity in a minister of the gospel with a woman; but if the libel, as it originally stood, did not contain a specific charge of "scandalous" familiarity, it was practically amended by the Presbytery accepting the complainer's plea to that charge. This was not a mere question of procedure, it was a question of excess of jurisdiction. The Church Courts had a regular form of process, and were not entitled to break it.1 They could not, for example, at once depose a minister, but were bound to proceed by libel. If irregularities were committed by the Presbytery, the Assembly might

to the laws and constitution of the Church. The Lord Ordinary is not aware of any authority for holding that the General Assembly exceeded their jurisdiction in the matters complained of, and the complainer did not cite any statute or other authority to that effect. There has been, so far as he can see, no excess of powers or disregard of statutory provisions. It appears to the Lord Ordinary that the whole matter was within the jurisdiction of the Church Courts, and if so, then the only other question is, whether or not the General Assembly proceeded correctly, and acted rightly in sustaining the competency of the petition of the elders, and pronounced judgment according to the laws and practice of the Church. The Lord Ordinary considers that this was a question of ecclesiastical law and procedure, of which it was the exclusive province of the General Assembly to judge, and with which the Court of Session has no right to interfere. If this Court were to do so, it would simply, it is thought, be reviewing the proceedings of the Supreme Ecclesiastical Court in a matter and in procedure purely ecclesiastical. The answers to the objections stated by the complainer to the procedure and judgment of the General Assembly, all depend upon the law and practice of the Church, of which the complainer is a minister; and the General Assembly, after hearing parties, and considering these objections, pronounced judgment thereon. The Lord Ordinary is of opinion that the Court of Session has no right to review or interfere with that judgment. Further, there was reserved by the judgment of 30th May to the complainer his whole objections and pleas to the foresaid libel, or such other proceedings as the Presbytery may adopt. If the law and practice of the Church be as stated by the complainer, he will have an opportunity of stating it to the Church Courts, who have the sole cognisance thereof (Campbell v. Presbytery of Kintyre, Feb. 21, 1843, 5 D. 657; Lockhart v. Presbytery of Deer, July 5, 1851, 13 D. 1296; Paterson v. Presbytery of Dunbar, March 9, 1861, 23 D. 720). The respondents pressed for judgment on the note of suspension and interdict, and maintained that answers were unnecessary. After a very full and able argument, the Lord Ordinary has given effect to the contention of the respondents, as he considers that, on the averments made in the note of suspension and interdict, the Court of Session cannot review the proceedings and judgments complained of."

1 Presbytery of Strathbogie v. Cruickshank, Feb. 14, 1840, 2 D. 585.

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