Hobiefter — Memorial, 2 Jan 1767

Janury 2.1767. I * M E M O R I A L F O R Mr George T rail of Hobiester, Minister of the Golpel at Dunet, in the Presbytery of Caithness, and of Mr Hew Mowat Minister at E v ie, Mr Hew Sutherland at K i r k w a l l, Mr Alexander Oliphant at Bowier, Mr Alex- ander N iccolson at Thurso, Mr James Taylor at Wat- ting, Mr Martin M 'P hers on at Golspie, Mr George M 'Culloch at L a t h, Ministers; Mr G raeme of Graems- hall Ruling-elder, Mr James B law merchant in Kirk­ wall, MrA n d r e w Ross late Factor to Lord Morton, Mr Drummond Ros s Collector of the Customs in Kirk­ wall, Commissioners appointed by the Commision of the General Assembly of the Church of Scotland, on the 19th Day of A ugust and the 20th Day of November 1766; with the Concurrence, and at the Instance of Mr D avid Dalrymple Procurator for the Church of Scot­ land. \ M R Thomas Lyell minister of the gospel in the island ofSanday, presbytery of North-Isles, and stewartry of Orkney, has, for some time past, been suspected of very gross and scandalous irregularities. The f ama clamosa whereof was not only flagrant in the Orknies, but spread over the whole country; and it gave very great offence, that the presbytery of the bounds had taken no notice of him, nor showed any disposition to make the least inquiry into the scandal: But the General A ssembly of the Church of Scotland, always at­ tentive to the interest of religion and the morals of the clergv, or- dered dered the presbytery of North-Isles to serve Mr Lyell with a libe l.The presbytery of North-Isles accordingly served Mr Lyell with a libel; and upon it there were various absurd and irregular pro­ ceedings, which gave rise to an appeal to the General Assembly, in the 1765, when the whole judgments were reversed, and the presbytery appointed to begin Mr Lyell s trial de novo. The presbytery were very remiss in the execution of this second order, and, in all appearance, were resolved to have matters slurred over; for although they served Mr Lyell with a new libel, yet they proceeded in such a manner as gave ju st offence to the whole country, and rise to reflections every where, very little to the cre­ dit of the presbyteries, and even of the synod, in. that remote part of the country. Mr George Trail of Hobiester, an heritor in the parish of Lady- parish, alarmed with a conduct so extraordinary and unprecedent­ ed in the church, thought himself bound in duty and conscience to inter pose; and the fama clamosa still increasing, he determined to become the prosecutor, and to exhibit a libel against Mr Lyell. Accordingly, of this date, he did exhibit a libel, "charging M r Lyell with fornication with two women; attempts to ravis h several other women, the wives of his paris hioners; attempts of assassination, s lander, and defamation, profane curs ing and swearing," &c. And the libel concludes, " A l l which, or part thereof be­ ing found proven, you, the s aid Thomas Lyell, ought to be depos ed from the office of the holy ministry, or otherways censured, accord­ ing to the demerit of your guilt, for the glory of God, edification of the church, and to the terror of others to be guilty of the like enormous crimes and offences in time coming. This libel was exhibited to the presbytery of North-Isles; but, instead of ordering it to be served, they thought proper to reject it, on this affected pretence, That the presbytery had already served Mr Lyell with a libel at their own instance. Mr George Trail there­ upon entered his appeal to the General Assembly of the Church of Scotland; and the same having been heard at their bar, in May last, the General Assembly. received Mr Trail s libel, and ordered the process thereon to be carried on before the General A ssembly, or their Commission, to which they gave special powers for that effec t. About About this time, viz. the 28th of May 176, Mr William Nis bet, another minister of Orkney, was brought to trial for the crime of adultery, found guilty by the jury, and banished for life by Lords Auchinleck and Coalston Commisioners of J ustic i- ary, who, after the usual sentence, were pleased to add the fol­ lowing clause: And, in order that inquiry may be made into the cause why n0 pros ecution was properly brought before the eccles iastical courts against the panel, the said Lords ordained, and hereby ordain the clerk of Court, to transmit copies of this sentence to the moderator of the commission of the General A ssembly, to the Procurator for the church, to the moderator of the presby tery of Careston, and to the moderator of the next ensuing sy- nod of Orkney.” These proceedings, in the ecclesiastical and criminal courts, gave real concern to all wellwishers of religion, brought a grievous scandal on the clergy of Orkney, and all ranks wished to have it removed as soon as posib le. The presbytery of Inverness took the lead; and laying hold of said Mr William Nisbet, then a pris oner in the tolbooth of Inverness, served him instantly with a libel, for the crimes for which he had been convicted at the cir­ cuit; and, upon his pleading guilty, they pronounced the sentence o f deprivation, and expelled him the pale of the church of Scot­ land; and thereby created a vacancy in his parish, to be supplied by the lawful patron. Mr George Trail, in the mean time, was not idle: He was making the necessary preparations to follow out his process with all possible expedition; and accordingly he served his libel on Mr Lyell, and reported the libel, with the service, to the Commission of the General A ssembly, on the 19th day of August last. “ The Commission, of this date, found the libel relevant, admitted the same to probation, and granted commission to the memorialists, Mr Hew Mowat, Mr Hew Sutherland, Mr Alexander Oliphant, Mr Alexander Niccolson, Mr James Taylor, Mr Martin M'Pher- son, Mr George M'Culloch, Mr Graeme of Graemeshall, any three of the above persons to be a quorum, for taking the proof in Orkney, to be reported to the commission in November.” The commissioners met at Kirkwall the 18th of September, and made some progress in taking the proof. They continued there till the 30th of October, and had full time to have examined all the witnesses summoned, if they had appeared in consequence of their their citation. But Mr Lyell, who is tacksman of almost the whole island. of Sanday, had influence over his subtenants and cottars, the most material witnesses, and kept them back from appearing. Other witnesses who had been cited made their ap­ pearance indeed, but refused to give evidence; and particularly a procurator, Malcolm Groatt of Warsce, refused to depone, alled­ ging, He ow ed no obedience to the authority of any eccles iastical court. This decision of a man of law effectually determined the execu­ tion of the commission in these remote islands; for other eight and twenty witnesses, the most material, against whom executions were returned, went into the opinion of Mr Groatt, and would neither appear or submit to examination. Upon this emergency the memorialists, Mess. Mouat, Sutherland, Oliphant, Niccolson, Taylor, five of the commissioners present, put in a petition to the magistrates of Kirkwall, setting forth their commission, and the res gesta, and thereupon craved warrant to apprehend Malcolm Groatt, that he might give his testimony, or to remain in prison till he should depone and give evidence: But the magistrates refused the desire of this petition. The memorialist Mr George Trail put in a like petition to the sheriff-substitute, craving the same warrant against 28 other witnesses, against whom regular executions, by a messenger at arms, had been returned, craving a warrant to apprehend their persons: But the sheriff-substitute refused the desire of that pe­ tition, as appears from two extracts of said petitions, and the executions against the witnesses, herewith produced. The commissioners, after these transactions, had nothing farther to do, than to report the proof, so far as they had taken it; and the memorialist Mr Trail laid the same, with a petition, before the Commission of the General Assembly, on the 1 9th of November last; and the next day the Commission prorogated the term for proving, renewed the commission to the former commisioners, added to them Mr James Blaw merchant in Kirkwall, Mr Andrew Ross late factor to Lord Morton, Mr Drummond Ross collector of the customs at Kirk­ wall, declared any two of the whole a quorum; and appointed the P rocurator for the church to take all proper and legal steps for having the witnesses compelled to compear before the commissioners to give evidence in this cause." In In obedience to this injunction, the memorialists, Mr Trail and the Procurator for the church, submitted the case to your Lord- ships consideration, in a summary petition, praying for letters of first and second diligence against the said 28 witnesses, and Malcolm Groatt. Mr Thomas Hepburn minister at Birsa, and Alexander Fraser surveyor of the window-lights in Orkney, against whom lawful and regular executions were returned. Your Lordships having taken the case under deliberation, were pleased to order memorials; in obedience whereto this is humbly submitted. The Commission of the General Assembly of the Church of Scotland have no other desire than to execute the trust reposed in them with integrity and faithfulness; and they wish their en­ deavours to bring matters to light by an open and fair trial, by the fullest evidence which the nature of the crimes charged do admit of, may be obtained, that the next General A ssembly may have it in their power to give judgment in so great and im­ portant a case. The church is at an extremity. Their purity and sanctity of manners, their estab lishment and constitution at the point of dissolution: For all must go to ruin, if it shall once be supposed that they are legibus soluti; and although amenable, and may be prosecuted before the ecclesia stical courts, yet i f witnesses cannot be compelled to compear before them, these trials will be a mockery on ju stice, vain, and nugatory. Your Lordships seem- ed to be ju st ly apprehensive of the evil pressing on the ecclesiastical courts, that a remedy was necessary to support this great and im­ portant branch of the sta te; and it is hoped, that upon a reconsi- deration of the case, your Lordships will find the church not with­ out a remedy; and that it lies in the sovereign power of the Court of Session, which exerts itself to prevent every uncommon and extraordinary evil. The summary petition, formerly put in, was on a matter new; and no wonder doubts were entertained, both against the proprie­ ty and relevancy of it; and these might have been founded upon the following grounds: 1mo, That the libel exhibited against Mr Lyell, concluding for deprivation, was simply an ecclesia stical process; and it might be doubted, if, by the law of Scotland be­ fore the union, your Lordships could give to the ecclesiastical courts the aid of civil authority to compell the witnesses to com­ pear and give evidence: Or, if your Lordships could have done it formerly, that such interposition was now prohibited by the sta- tute tute of the 10th of Queen Anne. 2dly, As the jurisdictions civil and ecclesiastical are several, distinct, and diverse jurisdictions, e qually independent of one another, and equally sovereign and ex tensive in the respective branches of their constitution, neither having the power to review the judgments of the other, it was a matter not easily to be reconciled how the authority of the one could be craved or granted to strengthen or make effectual the ju risdiction of the other. 3tio, It might be apprehended, that the church-courts ought fully to have followed out their own forms, and have excommunicated the witnesses for contumacy, before any application for the compulsitors of the law. 4to, That applica­ tion for first and second diligence was not made by the proper parties; for the Court will not permit the diligences of the law to be made an engine of oppression, and will take care that those, to whom it is granted, shall be amenable to the Court, if any ex cess or abuse is committed against the witnesses. And the memo- rialists beg leave to submit a few considerations on these heads. As to the first point. The process against Mr Lyell is brought before an ecclesiastical court; but the end of that prosecution is not directed to the correction of manners, or for the reformation and amendment of Mr Lyell in his life and conversation: It is to have Mr Lyell depos ed upon a sentence of deprivation; the effect of such sentence is the loss and forfeiture of stipend. This prose­ cution therefore concerns a civil right; for the prosecutor and Mr Lyell have joined issue in a question of freehold and of property. This, it is apprehended, will further appear evident, when the pro- gress of our statute law, and the history of the church of Scotland are attended to. At the reformation, the old policy of the church of Rome, root and branch, was demolished and put an end to, by the second act of parliament 1567, anent the abolishing of the 'Pape, and his usurped authority. In consequence of this act, there was no public lead­ ing in religion, or legal estab lishment of a church in Scotland. The first was immediately instituted, and a church, in the larger ac­ ceptation of that word, was declared by that 6th act 1567, anent the true and haly kirk, and of them that are declared not to be of the f amen. Nothing further was done on the second, than by the seventh act of that parliament, which “ ordained, that the examination and admission of ministers within this realm, be only in the power of the kirk, now openly and publicly professed within the famen.” These These were all the steps taken immediately on the reformation; the parliament resting satisfied with declaring what should be held the general face of the church, as it is expressed; and giving to it the power of examination and admisio n of reformed ministers; but no legal estab lishment or ju risdiction to this face of a kirk. And in this situation, with some small alterations, did matters continue till the 1592. The reformed ministers being authorised, and that spiritual and inherent power of ordination, or admisio n of ministers, thus acknowledged by parliament, it followed as a necessary con- sequence, that they had likewise the power of degradation, or of depriving a minister of his office as minister. But then, in the simple state in which the infant-church stood at the reformation, this degradation was all that was in the power of the reformed ministers, and could not be attended with any civil effects; be- cause the legislature had not then formed them into a legal body or estab lishment, or vested in them any jurisdiction whatever. Nor was the case altered by the 69th act 1 579, which conferred a jurisdiction, and declared Quhairin consists the jurisdiction of the kirk, because it was limited to preaching of the word, correction of manners, and administration of the sacraments; which, upon the matter, was no more than giving a further sanction to the public profesio n of the reformed religion, and to the mere spiritual dis­ cipline exercised by the ministers, for the amendment and correc­ tion of sinners. And accordingly it appears from acts of parlia­ ment, hereafter to be mentioned, that notwithstanding of the sen tence of degradation, the civil right to the stipend was retained, as a freehold and property, by the person degraded. Matters continued on this foot from the 1567 to the 1584, when the eccle- si a stical ju risdiction was enlarged; and from degradation, a mere spiritual process, was extended to deprivation, a process then un­ known in the law, having the civil effect of loss and forfeiture of benefice. These two processes in the canon law, and, at this day, in the law of England, were separate and dist in c t; deprivation be­ ing the greater, and, which the other wants, having the civil eff ects above mentioned. The 1 32d act 1584 is intitled, The causndmrofpivt of ministers. The preamble sets forth, “ That our Sovereign Lord, and his three estates, willing that the word of God shall be preached, and sacraments administrate in purity and sincerity, and and that the rents whereon the ministers ought to be s ustained, shall not be possessed by unworthy pes,neglecting to do the duties for whilks they accepted the benefices, being o therways polluted with the frail and enormous crimes and vices after sp e c i f i e d;" it is therefore enacted, “ That all ministers suspected culpable of common blasphemy, fornicatommon drunkenness, &c. being lawfully and orderly ca lled, tried, and ad­ judged culpable in the vices and causes above written, or one of them, by the ordinary bishop oj the diocese, or others the King’s Majesty ’s commissioners to be constitute in eclesi a stical causes, s hall be de­ prived, as well frae their function in the ministry, as frae their benefices, whilks shall be thereby declared to be vacant, to be presented and conferred of new, as g if the persons possessors there­ of were actually dead.” And this act is enforced by the 117th act 1592, which sets forth the reason of the contempt of the sentence of degradation, “ Because albeit they be deprived of their function and cure within the kirk, yet they think they may bruik law­ fully the profits and rents of their said benefices induring their lifetimes, notwithstanding the said sentence of depriva- tion." From this narative it appears, that the process of degradation is a mere ecclesia stical process, competent to the ordinary jurisdiction of the church: That, on the other hand, the process of deprivation, which is not competent to the ordinary jurisdiction of the kirk, is introduced in the 1584, by express statute, the rents whereon the ministers ought to be s ustained hall not be possessed by unworthy pes.And to carry the enactments of the statute into execution, the le- gislature has set forth the causes which are to infer, and manner of deprivation, has granted jurisdiction to the bishop to take trial, has declared that, on his sentence, the minister shall be deprived of his benefice. It thereby becomes a question of civil right, which the ecclesia stical courts, under the statute, have jurisdiction to try ad h unc effectum, whether the minister, possessor of the bene­- fice, shall continue to have right thereto in all time coming. This jurisdiction delegated to ecclesi a stical courts, in a civil right, by the above statute, is not unlike, nay almost similar, to that jurisdiction competent to the Court of Session in a matter merely eceles iastical, viz. the ordination and induction of a minister: For there it was adjudged, 14th February 1735, Moncreif of Ready, and in the cases of Lanark, Culross, and Forbes, “ That the right to a. #a stipend is a civil right; and therefore the Court o f Session have a power to cognosce and determine upon the legality of the ad mission of ministers ad hunc effectum, whether the person admitted shall have right to the stipend or not.” No disorder or confusi on is introduced into the state, or into the law, by these pro­ ceedings in the civil and ecclesiastical courts, although they are several, distinct, and diverse jurisdictions. Nor does these mat­ ters, which they thus judge in, become spiritual or temporal, ac­ cording to the court before which it is adjudged. The cause is the same: It is of civil right, whether the legislature has given ju risdiction to judge of it by special statute, or the fame arises from the sovereign powers of the Court of Session. And as to the law with respect to compulsitors to give obedi­ ence to the sentences of ecclesiastical courts, among a great varie­ ty, three statutes shall only be mentioned; one before and another after the reformation, and the third after the revolution. The 9th act 1535 ordains letters in the four forms, without prejudice to take captions, to be directed against persons sustaining the sen- tence o f cursing, for the space of forty days, and their effects moveable and immoveable thereupon to be attached. The 53d adt 1572, “ Ordains against persons excommunicate by the order of the true reformed kirk, That letters shall be direct, in all the four forms, at the instance of the party, the King’s advocate, or the Procurator for the kirk, charging the excomunicate per­ sons (they being excomunicated forty days) to satisfy the sen- tence or decreet pronounced against them, and to reconcile themselves to the kirk, and submit themselves to the discipline thereof.” And by the 22d act 1693, “ Their Majesties, with advice and consent foresaid, do hereby statute and ordain, That the Lords of their Majesties Privy-council, and all other magi- strates, judges and officers of ju stice, give all due assi stance for making the censures and sentences of the church, and judica­ tories thereof, to be obeyed, or otherways effectual, as accords.” It is remarkable, that this last act past the parliament of Scotland three years after the 28th act 1690, declaring “ all acts enjoin­ ing civil pains, upon sentences of excommunication, to be re- scinded and repealed.” And when ordinary processes before ecclesiastical courts against delinquents could only be directed by the discipline of the church for correction of manners, yet, e- ven then,, it was thought, by the wisdom of parliament, to be proper proper to make such sentences effectual by the executorials o f the law. It therefore appears in all the periods of the law and in e- very circumstance of the church, that the interposition of the civil magistrates might have been applied for, and that they were or­ dained and required to grant the same. And this leads, in the last place, to the statute of the 10th of Queen Anne. From the above review of the statute-law, to the 10th of Queen Anne, it appears, that the acts inflicting civil pains, on sentences of excommunication, were repealed; but the process of excommuni­ cation was notwithstanding acknowledged by the law, and to be made effectual by the interposition of the civil magistrate. Mat­ ters being brought to this pass, the British parliament have thought, that the said act 1690 of the parliament of Scotland ought to have gone further, and have made a positive enactment, that no civil pain shall be incurred by a sentence of excommunica­ tion; and to have prohibited the interposition of the civil magi- strate in all processes of excommunication, leaving the ecclesia st i- cal courts to deal with the confidences, and proceed on the volun­ tary submission of delinquents or witnesses; and therefore, by the 10th of Queen Anne, it is declared and enacted, “ That no civil pain, or forfeiture, or disability whatsoever, shall be in a- ny ways incurred by any person or persons, by reason of any excommunication, or prosecution in order to excommunica­ tion, by the church-judicatories, in that part of Great Britain called Scotland; and all civil magistrates are hereby expressly prohibited and discharged to force or compel any person or persons to appear when summoned, or to give obedience to any such sentence when pronounced, any law or custom to the contrary notwithstanding.” The above clause therefore, with great submission, can sa lvo sensu be only understood as correctory of the law of Scotland; first, by a positive enactment against all sentences of excommunication; and then, Secondlv, as it mentions excommunication, prosecution in order to excommunication, and obedience to such sentence of excom­ munication, it can relate only to the processes of ordinary juris- diction of the church, in matters of mere discipline. In these, all interposition of the civil magistrate is expressly prohibited, and in so far it is correctory of the law of Scotland. In those matters therefore of mere discipline, the prohibition of the law takes place, and no civil magistrate ought to interpose. But, at same time, the the memorialists do humbly submit, that as the process against Lyell is neither for excomuniat, nor in order to excomuniation, nor founded on the ordinary jurisdiction of the church, but for a crime introduced into the law of Scotland by the statute 1584, the cognizance whereof is delegated to the ecclesia stical courts, to take trial by the depositions of witnesses, as in a civil right, and to a civil effect, it cannot fall under the prohibition of the 10 th of Queen Anne. Nor can the expiscation o f truth be supposed to have been rendered impracticable to that court, which solely has the ju risdiction to try the fact, and to give judgment or sentence upon it. For although, at first light, it may be thought that this process against Mr Lyell may be in order to ex- communication, or at least may end there; yet, by the form of pro­ ces s of the church, that is impossible, and would require a sepa- rate process: for it is clear, by the form of process, that as Mr Lyell appears, and pleads not guilty, if he shall be convicted, then he will be deposed; and there the process ends. Thereafter he may be admonished, and enjoined to do penance, which will be conduct­ ed by his own presbytery, for the correction of manners; which is a separate and distinct matter from the former prosecution. The prohibition therefore of the 10mo Anne being clearly out of the question, the memorialists shall proceed to the difficulty which may be suggested from the second head above mentioned, arising from the ecclesiastical and civil courts being several and distinct ju risdictions; and, it is hoped, that that will be no bar to your Lordships granting the compulsitors of the law against witnesses. The memorialists have been at all the pains in their power, to search, and to make inquiry, to throw light upon this part of the argument; but their labours have not met with the desired suc- cess. But they shall submit to your Lordships what has occurred on that subject. On this head it shall, in the first place, be observed, That any i- dea of difficulty in the civil and ecclesiastical courts clashing toge­ ther, has not occurred to the legislature at any period posterior to the 1584, when, by the 1 3 1st act, “ All jurisdictions spiritual or temporal, which are not approved by his H ighness, and his three estates conveened in parliament, are prohibited and dis- charged.” Thereafter the spiritual ju risdiction could compre­ hend nothing but what was ordinary, for the correction of man­ ners and discipline; or extraordinary, in civil matters, delegated by by express statute; as in the designations of glebe, manse, grass, deprivation of ministers from their benefice, and of schoolmasters from their salary and office. When the old fabric of the church of Rome was abolished, with its extensive and exclusive jurisdictions, it became absolutely necessary, upon the reformation, to delegate either to the spiritual or temporal courts new powers and authorities to try and judge the causes formerly not competent to them. The reformation, in effect, took place in August 1560; but by authority of a tumultu­ ary parliament, met at Leith, without the royal authority. It had this consequence however, ipso fact0, to abolish all spiritual juris- diction. In this emergency, the sovereign powers of the Court of Session carried all jurisdiction; and from the necesity of the case, for the public utility, even spiritual causes were cognoscible by them. And thus a few months thereafter, Balfour in his Prac- tics, Tit. Of the Session, gives the following instance: “ The Lordis of Counsall hes powar to cognosce and decide upon spiri­ tual causis, g if the consi storie, or ecclesiastical jurisdiction, ceisis or be stopt be civil wars, or utherwayis; 19th December 1560, John Chalmer contra Agnes Lumisdane.” But that the abolished jurisdictions might not rest solely on the nobile officium of the Court of Session, thereafter the Commissary- court was instituted for particular causes. Others were indiscri- minately delegated to the spiritual or temporal courts, by particu­ lar statutes. Simony, a matter merely spiritual, was delegated to the Court of Session; the civil causes of glebes, deprivation, &c. to the ecclesia stical courts. Nay some causes required the co­ operation of all courts. Thus in the trial of malicious desertion, by the 55th act 1573, the decree of adherence was to be pronoun­ ced by the commissaries; then application to the Court of Session for letters of four forms, and, lastly, the excommunication by the bishop. In short, as all jurisdict ion flowed from the King and the parliament, and as all courts standing on that bottom might be considered as the King’s courts, instituted for the public good and the advantage of the leiges, the legislature have always had that great end in view, and have steadily followed it out: so like- wise ought these courts, by communicating mutual assi stance, in so far as they are not prohibited from the nature of the thing, or by the law of the land.I n the s econd place, upon this head, it shall be observed, That the family- family of Argyle were formerly possessed of the heritable right o f judiciary in Argyleshire, independent of the High Court of Just iciary, either as it was anciently constituted, or under the present model, and was sovereign and independent of it. The Just ic e- General of Argyle had the power of repledging; and they used the same in the year 1709, in the case of Stewart of Afcog. and others, from the shire of Bute. The Court of Judiciary gave up the pan- nels to be tried before the Ju stice-General of Argyle. In this cause, as appears from the books of adjournal at first diet of court, as the witnesses had not appeared on the first citation, perhaps i- magining they were cited a non suo judice, the Lords of Judiciary granted second diligence to compel their appearance. And there are many instances where application has been made to the Court of Judiciary for warrant to compel witnesses to compear before the Ju stice-General of Argyle, which were always granted. This last shows the comitas which had prevailed betwixt these co-ordinate courts, sovereign and independent of one another. The like comitas is observed by your Lordships in the execution of commissions from foreign jurisdictions, and the like is expell­ ed by your Lordships upon the commissions issued from the au­ thority of the Court of Session; in which your Lordships request all judges to accept of and execute the commission ex comitate, and for the furtherance of justice, as particularly was done in the case of Balquhain. This comitas is generally held to be founded on the law of nations, and a duty which nation owes to nation, for the furtherance of ju stice. It would therefore be very strange, if there was comitas only betwixt foreign courts, and it was excluded be­ twixt the independent courts of one Sovereign, and the same na­ tion. In the third place, In the case of arbiters, your Lordships grant letters of diligence against parties, witnesses, and havers of writs, to appear to give evidence, and to produce before the arbiters. Attention has likeways been paid to this, to find out the origin of this practice. But all that appears on record, that is, from the printed decisions, is a petition, reported by Lord Stair, 6th January 1670. “ Kerr and Scott being arbitrators by submission, craved, by bill, a warrant from the Lords to authorise them to summon witnesses to compear, and depone before them, in the cause in which they were arbiters. Which the Lords granted.” It It is probable, that this was the first application in matters of that kind; for it would seem not to have been well established in practice, because the like application was resisted, 10th December 1683, Forrester, as observed by Fountainhall. But since that pe­ riod, there is nothing better settled, than that witnesses can be compelled to appear before the arbiters; and the desire of every application for that purpose is granted. In the case of arbiters, the nobile ofcumf your Lordships is carried to the greatest height: For in all other cases, the defect of jurisdiction is only supplied; but here it is first created, then for­ tified with all the artillery of the law. But it may be said, That although compulsitors are given to ar­ biters, yet your Lordships have power to review decreets-arbitral; and therefore compulsitors against witnesses are granted. It is humbly submitted, i f the interposition of the Court can stand on so narrow a bottom. The law and your Lordships will prefume, that, in submissions, every thing rite et solenniter est actum; and therefore neither corruption, partiality, not falsehood; and when these, or either of them, do not occur, your Lordships have not the power to review. Besides, there can be no power of review i- maginable of foreign decrees, to follow on the commissions execu­ ted in this country. The granting of compulsitors therefore stands upon a broader bottom, set forth in your Lordships letters requi- sitorial above mentioned, viz. the furtherance of justice; and it is hoped, that that principle will likeways be the governing rule in the present case. In the fourth place, it is humbly apprehended, That when an extraordinary evil is pressing on the state, and a remedy necessary, to grant it is inherent in the nobile officium of the Court. It has already been observed from Balfour, that in the convulsions about the reformation, in the 1560, the Court of Session was competent in spiritual causes, and stept at once into the whole jurisdiction formerly usurped by the Pope. The Lords have likeways advocated causes from the High Commission for plantation of kirks; have judged upon the legality of the admission of ministers; have advo­ cated criminal-causes, not competent to their jurisdiction; have supplied the defect of the law, by introducing adjudication contra haereditatem jacentem; and, in implement, have introduced the sta- tutes 158 7, regulating actions of molestain, and 1621, with res pect to divours and bankrupts; and, by act of sederunt, of executors- creditors creditors confirming within six months. These were salutary and wise regulations, flowing ex nobili of icio, s upplendi, emndai, et corrigendi the former law, or the abuses not guarded against by it. There is, in the present case, the like evil pressing upon the church, the same necesit y for a remedy, and equal power in the Court to grant it, supposing it had not been enjoined by the statute 1693. The memorialists have the greatest reverence for the honour and dignity of the Court of Session; and far would it have been from them, to have made any request which would have had the least tendency to diminish or impair it. But, in their humble apprehensi ons, the application which they have made, is so far from im­ peaching the honour of the Court, that it tends to increase its ju risdict ion, and to add, i f posib le, to its lustre and dignity. The Court of Session has no jurisdiction in questions o f deprivation, either in the first instance or in the second, by review. When therefore the ecclesia stical courts become suitors to your Lordships, for the proper diligence to compel witnesses to compear before them, they must set forth, as has been done in the present cafe, the charge or libel, the proceedings in the cause till the stop, by the refusal of witnesses to compear; and thereupon they will crave the aid of your Lordships, the great Consistory f the natio, to supply the de- f ect of ecclesi a stical jurisdiction, by the proper compulsitors of the law. In all such cases, the Court will proceed causa cognita, and quas i ju risdictione, the most important and decisive, by giving a negative before hearing or debate. And i f it shall appear, that the process is in a matter merely ecclesia stical, for correction of manners; or if the libel is irrelevant, or the proceedings irregular and improper, then the Court will refuse the compulsitors of the law, not by an act of power, but an act of jurisdiction, upon trial of the ecclesiastical proceedings, and so causa cognita; and in so far is the jurisdiction of the Court enlarged. Besides, your Lordships will, in every case, do all in your power for the furtherance of justice. The above ins t a n c e s, where the nobile officium of the Court has been interposed for that purpose, are clear demonstrations of it. All our lawyers make mention of them as public benefits introduced by your Lordships, and applaud that exercise of the nobile f icium. And although the present case was not so directly in the line, and in strictness not to fall under your Lordships immediate notice, y e t when application is made, it ought ought to be taken in, and a remedy granted to prevent so extraor­ dinary an evil pressing upon such an important branch of the state and constitution. The third supposed ground of doubt shall now be considered, viz. That the church should follow out their forms, and excommu­ nicate the witnesses. The process against Mr Lyell, from the necessity of the case, is not carried on before the presbytery of his bounds, the ordinary jurisdiction. It is pending before the General Assembly, where the King either sits in person, or is represented by a Commission- er. In this Court the libel has been exhibited, received, and a warrant granted to summon the witnesses. The will of command therefore is in his Majest y ’s name; and by that authority the wit- nesses have been cited by a messenger at arms, and have refu- sed to compear before the commissioners nominated by the Com mission of the General Assembly, to whom it has been remitted to determine the cause. In these circumstances it is, in t h e first place, doubted, if the witnesses who have refused could be excommunicated for contu­ macy. The process has all the appearance of a civil action. The witnesses are not contumacious to the commands of ecclesia stical officers, but to the officers constituted by the civil powers. The offence of the witnesses therefore is rather of a civil than ecclesias tical nature, in which churchmen have no jurisdiction and cannot excommunicate. In the next place, The cause is pending before the Commission, with limited powers, which they cannot exceed; and as it was a case unforeseen that witnesses would be contumacious, no powers were delegated to the Commission to proceed against them. There­ fore they cannot be attacked by any ecclesiastical censure. But, last ly, It is a matter of doubt if witnesses, when summon ed by the ordinary officers of the church, and being declared contumacious, can be excommunicated. The form of proces s has not laid down such order of procedure against contumacious wit­ nesses. The purity of the discipline of the church, has but one object in view, viz. a s in, and is directed solely- for the correction and reformation of the delinquent, by private admonitions, & c. It supposes, where there is no sin, there is no delinquent. In fact, no instance can be found since the reformation, of a witness being excommunicated; and none has occurred since the revolution. Upon. Upon the above principle and practice, it is now generally held, that witnesses cannot be excommunicated, f or not appearing in consequence of a citation. It will therefore clearly appear, that all has been done which is competent to ecclesiastical courts. The witnesses have been law­ fully summoned; application has been made to the inferior civil magistra te; and upon their refusal to compel the witnesses, a summary petition has been presented to your Lordships. Besides, it would have very pernicious consequences, if that awful sentence of excommunication was in every case to be interposed. It would then become too common, and thereby lose its influence on the minds and consciences of the parishioners. The last point proposed for consideration, was the want of pro­ per parties in the summary application to your Lordships. It is hoped that this is now corrected. The Commission of the General Assembly is temporary, ha­ ving stated times of meeting, to determine the particular causes delegated to them. They are ju dices dati by the General A ssem bly to these causes, to be judged at stated times. The very exis tence of the Commission must be dissolved, before the proof in the process against Mr Lyell can be concluded. It was therefore hum­ bly apprehended, that the Commission were improper parties in the summary application, as they had no powers to si st themselves as parties, nor will have a name or existence, when the cause shall come to be determined. The commissioners appointed for taking the proof, with Mr Trail the prosecutor, and the Procurator for the church, are, with great submission, the proper parties, and now si st themselves in Court, in support of said summary petition, and do crave war­ rant for letters of first and second diligence, or for second diligence only, against the witnesses contained in the executions herewith produced. In the case of a submission, application is made in the name of the arbiters, and is uniformly granted. From the like analogy, when application is made by the memorialists, the same course ought to be held, by granting the compulsitors against witnesses to com­ pear before them. It is not to be supposed, that the judicatories of the church, or their commissioners, will make an improper or bad use of the aid of the civil power to supply the defect of their jurisdiction. Their known known reverence to the laws, their deference to your Lordships. and the respect they have to their own character and function, are the most ample security against any excess. But if, contrary to all imagination, the witnesses shall be harassed, or otherwise impro­ perly dealt with, they have ready access to your Lordships against the memorialists, the commissioners, who are amenable to the Court, and must answer for the consequences. Upon the whole, it is hoped that the desire of the petition will be granted. In respect whereof, &c. D A V. D A L R Y M P L E