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against the pursuer, in 1844, of his having been guilty of antenuptial fornication when residing in the neighbourhood of Perth, and that the fama had been revived in the parish of Blairgowrie ; that the KirkSession of Blairgowrie had been put at defiance by the pursuer, and were prevented from vindicating their own authority, and from subjecting him to discipline for his misconduct, by the sentence of the Presbytery of Meigle; and prayed to reverse the judgment of the Presbytery: That the General Assembly unanimously dismissed the appeal, and refused the petition ; and the charges against the pursuer were thus finally dismissed : That, nevertheless, the Kirk-Session, on or about the 30th May 1848, in violation of their duty, and to gratify feelings of animosity, prepared and recorded a minute, in which these charges were in effect reiterated as true; the sentences of the Church Courts in the pursuer's favour were misrepresented ; his restoration to Church privileges was held forth as an injury to true religion ; and the responsibility of that step declared to rest with the superior courts alone; and this minute, by authority of the Session, was read by Mr. Greig from the pulpit to the congregation on the first Sunday thereafter : That, further, Mr. Greig, by authority of the Session, continued to refuse to baptize the pursuer's child ; and they met all demands for Church privileges by a reiteration of the old charges, and other accusations equally unfounded, but equally hurtful to his feelings, and injurious to his character and patrimonial interests.
The summons then stated that a fund existed, known as the Barty Mortification, for the purpose of defraying the education of a certain number of poor children. The fund was managed by an independent board ; but the nomination of the children for the parish of Blairgowrie rested with the Kirk-Session. In September 1847, a boy had been removed from the School, and the pursuer intimated the fact to the Session, that the vacancy might be filled up. They, however, on the 14th November, drew up a minute, by which the pursuer was inculpated, and sent an extract of it to the Local Board of Trustees. That board, after full deliberation, found that there was nothing in the pursuer's conduct of which they required to take notice; nevertheless the KirkSession, on the 14th December 1847, recorded a minute, describing the pursuer as glaringly deficient in his calling, and careless about the pupils committed to his care, and bearing that the Session, “considering that while they have all along endeavoured to discharge their duty faithfully and for the best interests of the Mortification, and being unwilling to incur the responsibility of placing the poorest child under the charge of one who, in their opinion, has shown himself so unfit for the situation which he holds, or to come into any farther unpleasant contact either with Mr. Sturrock or the Local Board, which they must necessarily do, if in the discharge of their duty they take cognisance of any neglect, do unanimously agree to decline filling up the vacancies in said Mortification, to which they have the right of nomination, so long as Mr. Sturrock continues assistant teacher in the parish School.”
The pursuer farther set forth, that the Kirk-Session afterwards, on the 1st and 3d of February 1848, recorded minutes with regard to the examination of the pursuer's school, which were false and calumnious, and transmitted them to Mr. Thomas, clerk of the Guildry Incorporation of Perth, who were connected with the general management of the Barty Mortification.
The summons also narrated several statements made by Mr. Greig in an individual capacity, which were averred to be false and calumnious.
Defences were lodged by the Kirk-Session, in which they denied or explained the charges above detailed. A remit was made to have issues framed.
The first issue approved of by the issue clerks was as follows:
It being admitted that the pursuer is assistant schoolmaster, and successor to the schoolmaster of Blairgowrie, and that the defenders are minister and elders of the said parish, and constitute the Kirk-Session thereof, and that at meetings of the said Kirk-Session, held on or about 24th December 1846, 2d February 1847, 5th May 1847, and 2d November 1847, the minutes set forth in the schedule hereunto annexed were recorded by the said Kirk-Session: It being also admitted that a petition was presented to the General Assembly of the Church of Scotland by the said Kirk-Session on or about the 9th day of May 1848:
1. Whether the said minutes, or any part of them, and the statements in the said petition, or any part of them, are of and concerning the pursuer; and falsely, calumniously, maliciously, and without probable cause set forth that there existed a fama against the pursuer, that he had been guilty of the sin of fornication when residing in the neighbourhood of Perth, and represent the pursuer as guilty of falsehood, and of conduct unbecoming the character of a Christian, of a communicant, and of a teacher of youth? And whether the pursuer was thereby wrongfully, and maliciously, and without probable cause, suspended from church privileges, all to the loss, injury, and damage, of the pursuer ?
Two other issues were proposed as applicable to the circumstances above narrated, the one relating to the publication from the pulpit of the minute of Session of 30th May 1848; the other, to their procedure with regard to the Barty Mortification. These issues will be found at the end of this report.
The defenders pleaded that they were not liable in damages, in as much as the whole of the proceedings adopted by the Kirk-Session were adopted by them in their character of a Church Court. The authorities referred to by the parties will be found stated and commented on in the opinions of the Judges.
The Lord Ordinary reported the case.
LORD JUSTICE-CLERK (HOPE).—In the course of the discussion on the first of the proposed issues, which alone raises any very important question, two things were admitted and practically settled—first, that the procedure and judgment of the Kirk-Session on the matters referred to, and a subsequent petition to the General Assembly, which was an entirely separate and independent proceeding, must be considered and treated separately, both in discussion, and in issues if found to be the subjecttaken up by the dirk-Session raises bus and of unspea
matter of action; and, secondly, that as to the proceeding before and in the meeting of the Kirk-Session, that which was complained of as a libel, and intended to be made the ground of a claim for damages, was the findings and sentence following thereon of the Kirk-Session, in a question of discipline taken up by them.
The procedure before the Kirk-Session raises the important question we are to decide—a question of the greatest delicacy, and of unspeakable importance. With a view to that, the material point is the matter of fact already adverted to, that the pursuer distinctly stated to us, that the ground of action against the Kirk-Session for defamation and damages in this part of the case, was the actual findings and sentence of the KirkSession in the case of discipline brought before them. He admitted, most fully and fairly, that he did not found on any preliminary statements or narrative in the minutes, but distinctly, solely, and purely on the findings and sentence pronounced by the Kirk-Session, as their deliverance and judgment on the matter which came before them.
The defenders then maintain that no action will lie in law against them, the Kirk-Session - minister and elders — for any sentence or judgment pronounced by them in a proper case of discipline duly brought before them-pronounced by them as a Church Court, on matters which are clearly proper questions of discipline, and so within their competency and province as a Church Court, even although the pursuer avers that the findings and sentence—their judgment, in short—was pronounced maliciously and without probable cause. I add the latter quality, because none of us had any doubt that the want of probable cause in any view must be averred, and because, when the pursuer came to explain his case, he substantially and practically admitted that he must establish to the Jury the absence of probable cause. The plea of the defenders, however, is, that even when these qualities are distinctly alleged, still no action for damages can, on the facts averred, be maintained in point of law.
Then, what are the facts, as they appear on the face of the pursuer's statement, and the proceedings he sets forth? First, that one of the Kirk-Session, the minister, brought before them, and that the Session entertained, a charge involving a matter of Church discipline against the defender, he being a member of the Established Church, and subject to its discipline as such, and also as the parochial schoolmaster of the parish : That this charge was taken up by the Kirk-Session in its capacity as a judicature of the Church : That the matters of complaint against the pursuer, so stated to the Kirk-Session, were within the cognisance and competent jurisdiction of the Kirk-Session, as proper matters of ecclesiastical discipline, according to the laws of the Church, apart of course
altogether from any question as to the propriety or discretion of the proceeding ; this was distinctly admitted : That the Kirk-Session took the matter up in their capacity as a Church Court, and in no particular went beyond their duty, competency, and province as such judicatory-laying aside as wholly immaterial, as it was admitted to be, the irregularity in point of form on the first reason, in holding that the party ought to have appeared, in consequence of a certain letter, and was pronounced against in absence as contumacious : That his case was entered on and discussed—his defences heard, and professedly taken into consideration, and judgment finally and competently pronounced on the charges then competently brought before them.
All these facts are, in truth, admitted, in the way the case is brought before us.
Hence the Kirk-Session were acting within their competency, duty, and authority as a Church Court, in considering a question of discipline duly brought before them, respecting a party, ratione officii, and ratione status personalis, subject to their discipline, being a member of the Church. Then the procedure is that of a deliverance and judgment by the Kirk-Session acting as a Church Court on this proper matter of discipline brought before them as a Court, to whose ecclesiastical jurisdiction (I prefer the term to "spiritual ") the pursuer was subject.
He avers that they entertained, entered upon, and disposed of the alleged violations of religious duty, and irregularities in point of discipline and order, by him, as a member of the Church, maliciously and without probable cause, and with these dispositions judged of the case, and pronounced the sentence of suspension from Church privileges. The pursuer has already appealed against this deliverance and sentence of the KirkSession, and has obtained a reversal and acquittal from the Supreme Church Court, the General Assembly.
It is to be observed that no case is stated of subornation of testimony by the defenders, of preparation of false evidence by forgery or otherwise, of fabrication of documents, or alteration or vitiation of the same-nothing amounting to a crime, or even to any overt act, in violation of their duty. I notice such cases, and many other extreme cases might be figured, in which other elements might occur, in which the question might not be, as here, with what motives did the defenders discharge their duty ? I desire to give no opinion except on the general case, very fully and fairly raised on the record before us—which seemed to all of us, I believe, to raise a general point, depending on no specialties averred by the pursuer, or appearing on the face of the proceedings. I repeat, that on that general case alone I give my opinion—reserving for consideration any special case; and I can easily conceive many which might arise regarding the conduct of a Church Court, even when in the exercise of its proper province of discipline.
I am of opinion, that on the facts of this case, as above explained, an action of damages cannot be entertained, notwithstanding the averment of malice and want of probable cause, against the Kirk-Session.
I have, I admit, great jealousy and distrust of Church discipline exercised judicially, and by the infliction of Church censures, or suspension of Church privileges—great jealousy of the spirit, temper, and feelings with which it is liable to be exercised—and the utmost distrust not only of the fitness of the fallible office-bearers of every church who attempt to exercise it, but of the expediency and good for the interests of the Church, except in very flagrant cases, of that mode of enforcing the authority and principles of religion, or of preserving the purity of the Church as a body, the obedience to the faith of its members, and the influence of the Courts of the Church. But this is not the place to discuss the great questions which occupied the mind and talents of Calvin and Knox, or the wisdom of the powers actually entrusted to the Church Courts of this country, by the laws and constitution of the Church, although greatly modified and softened in practice.
I distrust the mind of man when invested with the high prerogative, so flattering to pride, so apt to magnify trifles into acts of irreverence, sinfulness, and irreligion, for the duty of judging of the religious conduct and motives of others—by whomsoever that prerogative shall be exercised, and I cannot forget, that under the discipline of one of the best Christians and greatest theologians the Church ever knew—that of the great Calvin—414 public trials took place before the Consistory in two years (1558 and 1559), ending not only in Church censures, but many in civil punishments, for matters, a great number of which there is not a pious Christian of the present day would not deem wholly unfit to be noticed in any other way than by private rebuke.
I think it right to say this, that I may not be suspected of dealing with the very serious question, raised by the defenders, in any other spirit than that of a lawyer. But, on the other hand, I am very clearly of opinion, that on the facts as above stated, an action for damages against the Church judicatory, acting in a proper case of discipline, will not lie, although malice and want of probable cause shall be ayerred.
We must attend to what is involved in the subjection to church discipline, undertaken and submitted to by every one who joins any church in which church discipline is to be exercised by the office-bearers or courts whom the church intrusts with such authority, and to whom they hold that such authority over the members of the church is com