woman that led to scandal or offence to some weak brother or sister was very different from an indecent and scandalous familiarity. But it was to the modified charge that the accused was willing to plead in a kind of way; and the Presbytery took that plea, allowed the charge to be cut down to that, without a new interlocutor of relevancy, and so the whole case was got rid of, and sentence pronounced. When that result was noticed by any person interested in the parish, it seems to me to have been competent for the Assembly to go back and revive the procedure. I should have been disposed to concur in holding, if canon law was the same as civil law, that the Presbytery's sentence was null and void-that the plea on which it proceeded was null and void. A plea of part of the charge, denying the indecency, and merely pleading to the scandal, was what, in the criminal court, would have been regarded as a plea of not guilty. And yet upon such a plea the accused was sentenced. I think such a sentence was rightly set aside.

With regard to tholing an assize, I could not think the complainer tholed an assize on either of the charges. If he had suffered he had done so by a null sentence, which by appeal he could have got rid of.

In any aspect of the case it seems to me plain there are no grounds for interference on the part of the Court.

The following interlocutor was pronounced :- "Refuse the reclaiming note, and adhere to the judgment of the Lord Ordinary: Find additional expenses due; and remit to the Auditor to tax and report, and to the Lord Ordinary to decern therefor." W. SPINK, S.S.C.—W. J. MENZIES, W.S.-Agents.

MAY 16, 1874.

THE REVEREND THE PRESBYTERY OF LEWS, Appellants.—D.-F. Clark -Lee.

THE REVEREND RODERICK FRASER, Respondent.-Watson-Mair.

FIRST DIVISION.

Church-Ecclesiastical Courts-Witness-Warrant af Citation-Sheriff.— Held that it is competent for the Sheriff, as Judge Ordinary, on the application of a Presbytery or other recognised judicature of the Established Church of Scotland, to issue letters of first and second diligence against witnesses neglecting or refusing to attend, on the citation of the Church Court, to give evidence in any competent proceeding before it.

Opinion (per Lord Ardmillan) that the aid of the Civil Court to enforce the attendance of witnesses may be given, and ought to be given, when craved and required, even in causes within churches not established.

The Presbytery of Lews having commenced proceedings by way of libel against the Rev. Roderick Fraser, minister of the Parish of Uig, for various alleged acts of drunkenness, etc., resolved on 5th March 1874, to go to proof of the charges contained in the libel, and granted their warrant for summoning witnesses to compear before them within the session-house of the church of Stornoway upon the 18th day of March 1874, in the hour of cause, with continuation of days. Several of the witnesses cited did not appear on the day appointed for the proof, and the diet was accordingly adjourned to the 8th April following. Meanwhile the Presbytery presented this petition to the Sheriff of Ross, Cromarty, and Sutherland, craving him to grant warrant to officers of Court to summon in common form the recusant witnesses, under the usual penalties in case of failure to appear, and, if necessary, to issue letters of second diligence.

The Sheriff-substitute (Spittal) declined, as being a member of the Presbytery of Lews, and the Sheriff (Fordyce), on 4th April 1874, having heard parties and advised the cause, pronounced this interlocutor:-"Refuses to grant the warrant craved in said petition: Dismisses the same as incompetent: Finds the petitioners liable in payment to the respondent of the expenses of process: Allows an account thereof to be given in," etc.1

1 "NOTE.—The question raised in this petition, which was represented by counsel or the petitioners as one of great importance in the conduct of ecclesiastical causes of the class referred to, was argued by the counsel for the parties with much ability and force. The substance of the argument for the Presbytery seemed to be,—

"That the Courts of the Established Church of Scotland being recognised by the law of the realm, the Civil Courts, where the former were defective in power to carry out their own sentences, were bound, on being required, to aid the former in making their sentences effectual. In cases, for instance, where a minister is prosecuted before the Presbytery on such charges as are contained in the libel above referred to, the Church Courts have not the power to compel witnesses to attend to give evidence in the Church Courts, though properly summoned by them to appear and do so. In these circumstances they were entitled to apply for and obtain the aid of the constituted civil tribunals to enforce the attendance of such contumacious witnesses by issuing letters of second diligence.

"Thus the Sheriff, who is the representative of the Crown, the fountain of the law of the land, was as head of the law within his own jurisdiction, bound to 'look after every matter which regards the Crown's interest'—(Ersk. i. 4, 6). The Sheriff was especially bound to give aid in cases of the sort referred to. Thus the Act 1690, c. 5, 'ratifying the Confession of Faith, and settling Presbyterian Church Government' for Scotland, adopts and confirms the Confession of Faith, and thereby makes it the law of the land. Now, one of the provisions of the Act 1690, c. 5, as set forth in the 23d (subordinate) chapter or division, which relates to the powers of the civil magistrate with regard to ecclesiastical matters, provides as follows:—(3) 'The civil magistrate may not assume to himself the administration of the word and sacraments, or the power of the keys of the Kingdom of Heaven, yet he hath authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered, and observed; for the better effecting whereof he hath power to call synods, to be present at them, and to provide that, whatsoever is transacted in them, be according to the mind of God.'

The petitioners appealed to the Court of Session. Argued for them :-A jurisdiction is conferred on the Presbytery, which they are bound to exercise, and which they cannot exercise in

"It was therefore clear that a case such as the present falls within the scope and meaning of the above enactment, because it was aid which was asked by the petitioners from the civil power to enable the Presbytery to enforce proper discipline, which that Court could not effect of itself, nor could they do so unless the Civil Court granted the warrant which was asked, viz., for letters of second diligence to compel the witnesses to attend and give evidence in the Church Court. This was just one of the very things which the statute declares it was the duty of the civil magistrate to effect.

"Then the Act 1693, c. 38, for settling the quiet and peace of the Church,' confirms the Act of 1690, c. 5, and provides thus :-'Lastly, their Majesties do hereby statute and ordain that the Lords of their Majesties' Privy Council, and all other magistrates, judges, and officers of justice, give all due assistance for making the sentences and censures of the Church and judicatories thereof to be obeyed, or otherwise effectual, as accords.'

"In reference to these enactments it was maintained that the obtaining of the aid of the civil power in the matter here in question had been constantly observed from the date of the above Acts down to the present time. This was to be inferred from the Act of Assembly 1707, cap. 2, sec. 9, which sets forth, in regard to the citation of witnesses, that, 'if contumacious, application may be made to the civil magistrate that he may oblige them to appear.' It was also to be inferred from the Treatise of Stewart of Pardovan (Edinburgh edition, 1773) on Church Forms of Process, book iv. 3, 13, in which the writer observes that, if witnesses refuse, after three citations, to compear, then they may be proceeded against as contumacious; or, if judged needful, after the first or second citation is disobeyed, application should be made to the civil magistrate that he may oblige them to appear '-(Act of Assembly 1707, c. 2, sec. 9). Again, the latest writer on Church Forms, the present Dr. Cook of Haddington (Forms of Procedure and Practice, edition 1870, page 20), repeats the statement of Stewart of Pardovan. Thus it was maintained that the Act of Assembly of 1707, and the treatises referred to, together with practice conform, afforded the strongest presumption that the right of the Church Courts to obtain the aid of the civil power in the matter in question, and in the mode now craved, was indisputable from the dates of the Acts down to the present period.

"In regard to the argument of the respondent, suffice it to say, in a general way, that it was a denial of the existence of any practice, decision, or authority in the law to support the plea maintained by the petitioners.

"It may be admitted that the argument of the petitioners above sketched out has the merit of considerable plausibility, but, unfortunately for it, no decision of the Civil Courts in Scotland, as was admitted at the debate, could be pointed out shewing that the Judge Ordinary of the bounds was entitled to issue a warrant such as was here craved, and no evidence of practice, in conformity with the supposed principle, had been referred to save and except the case of Auchtergaven, where, however, no objection, as it was admitted, had been taken to the competency (date supposed to be 1869, 1870, or 1871), and what might be inferred from the vague statements of the two treatises referred to. Besides, so far as the Sheriff has discovered, there is no writer on the law of Scotland who states that such a principle obtains in the law, and none was referred to at the debate. The plea, therefore, of the petitioners, has no decision of the Civil Courts nor practice to support it; nor is it warranted by the opinions or speculations even of any text writer on the law.

"The want of decisions was attempted to be explained on the medium that the point was so clear in favour of the Church, on the Acts of Parliament, that it was

cases like the present without the examination of witnesses. They are therefore entitled, where necessary, to apply to the Judge Ordinary for the usual warrant to compel the attendance of witnesses.

never questioned. But that is not a satisfactory answer, for it is impossible to suppose that, if there had been any practice, in conformity with the principle, during the 170 years elapsing since the passing of the Acts carrying out the principle of enforcing by the civil power the requirements of the Church in the matter, questions of law arising thereon would not have occurred, and consequently traces of such practice and its legal results must have appeared on the records of the Civil Courts. Besides, even supposing that a unanimity of belief in the existence of the principle explains the want of decisions, how can it explain the fact that no writer on the law has mentioned the principle as existing in the law and practice of Scotland? The Sheriff, therefore, cannot help being of opinion that there is no substantial ground for asserting that such a principle exists in the law, as that a Sheriff is bound to grant a warrant for the citation of witnesses to appear and give evidence in an Ecclesiastical Court, and to issue letters of second diligence.to enforce their attendance there, there being no cause in the Sheriff-court, present or prospective, having reference to the ecclesiastical suit in which the witnesses are required to give evidence.

"The only treatise in which the Sheriff has found any reference to the matter here in question is Dickson on Evidence,- -a book of unquestionably high character. In treating of the procedure for compelling witnesses to attend and depone (vol. ii. title 6th, sec. 1900, ed. 1855) the author says,-'Church Courts (like arbiters) have no power to compel the attendance of witnesses, or the production of documents, in cases before them, their compulsitors being limited to ecclesiastical censures, which only affect persons within their communions. It is not settled whether the Courts of the Established Church differ from those of Dissenting Churches in being able to obtain the aid of the civil force for this purpose.'

"Mr. Dickson states that 'the point was raised in a recent case, where the presentee to a parish applied to the Sheriff to interdict certain persons from putting away or destroying a letter which he alleged contained statements injurious to him, and which he expected to require in proceedings before the Presbytery as to his induction. The Court refused the application, on the ground that the petition did not set forth any proper title or interest in the document, and that the petitioner had not raised, or stated that he intended to raise, any civil action in which the document might be required'—(Barclay v. Gifford, 1843, 5 D. B. M. 1136). "The decision, however, proceeded upon the opinions of two Judges to one, and, as it altered the interlocutor of the Lord Ordinary, it cannot be held as authoritative. Their Lordships' views were conflicting as to the competency of the Civil Courts aiding those of the Church in ecclesiastical investigations. Lord Justice-Clerk Hope's opinion was against such a power, which his Lordship observed was not matter of statutory jurisdiction, and against which, he thought, there were reasons affecting the peace and well-being of society. Lord Meadowbank entertained an opposite opinion. Lord Medwyn considered that, if the document in question were required in a process in a Church Court, the machinery of ecclesiastical censure should be first used; and that no other Court could interfere, unless there was a competent process, in which the document was required for evidence, and unless the custodier of it was either not subject to the orders of the Church or defied them to the defeating of justice. Lord Cockburn's interloctutor implies that, in his opinion, the Civil Courts have the power in question.'

"The author adds, "The point must be considered still open.'

"In a foot-note Mr. Dickson states that the then Procurator of the Church (Mr. Bell) informed him that he was directed by the General Assembly of 1846 to try this question on the first favourable opportunity. The Sheriff may add that at the de

There is nothing in the constitution of the Church Court to render the application incompetent. The Presbyteries of the Established Church. owe there original constitution to the Acts 1592, c. 8, ratified by 1690, c. 7. They are indeed prohibited, by the Confession of Faith, c. 31, sec. 5, from interfering in any civil matter, except by way of humble petition, in cases extraordinary; but this leaves it open to them to apply by petition to the Judge Ordinary for any necessary warrant. Such right is recognised by the Act of Assembly 1707, c. 9, sec. 2, and in every book on the practice of the Church Courts. So far as ecclesiastical law is concerned, therefore, everything is in favour of the application.

The competency of the application was long generally admitted, but a warrant having been refused in one of the Sheriff-courts in the year 1846 the General Assembly instructed the Procurator of the Church to take the earliest convenient opportunity of judicially raising the point. No such opportunity has occurred since that date up to the present time, the only reported case being one where the application was granted.1

With regard to the powers of the civil magistrate there can be no doubt. The Confession of Faith, c. 23, sec. 3, recognises the power of the civil magistrate to interfere for the suppression of abuses, and the maintenance of discipline; while the Act 1693, c. 38, recognises the power of the Civil Courts to aid in making effectual the sentences and censures of the Church and her judicatories.

Lastly, an admitted duty lies on the petitioners to prosecute this investigation on public grounds, and their proceedings may issue in a sentence of suspension against the respondent. Now, supposing witnesses for the prosecution fail to appear, the petitioners have no power in themselves to compel attendance; is there then to be a necessary failure in the performance of the public duty incumbent upon them? Again, suppose that witnesses for the defence refuse to appear, without the aid of the civil magistrate their attendance cannot be compelled, and if that aid is not to be rendered, either the prosecution must be dropped, or the risk of grave injustice to the respondent be run. Such a result would render meaningless and nugatory the jurisdiction conferred on the Courts of the Established Church, and place them in a worse position even than a Court of arbitration proceeding on a mere bate reference was made to the Act 26 and 27 Vict. c. 47 (13th July 1863), which is entituled 'An Act for removing doubts as to the powers of the Courts of the Church of Scotland, and extending the powers of the said Courts ;' and it was stated further that there was a clause in the bill giving the Church Courts such a power as is here contended for; but no such clause was inserted in the Act on it being passed. It was explained by respondent's counsel that this was owing to the clause in the bill being strongly opposed in Parliament.

"The Sheriff must own that, considering the want of any express and authoritative decision of the Supreme Court, establishing either the existence of the principle here contended for by the Presbytery, or that the Sheriff-court is a competent tribunal for dealing with it, and, moreover, having regard to the conflicting opinions in the case above referred to (Barclay v. Gifford), he feels he would not, as Judge Ordinary of the bounds, be justified in granting the warrant craved in the petition." 1 Presbytery of Dunkeld, August 23, 1870, 14 Journal of Jurisprudence, p. 632.