Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By SIR HEW DALRYMPLE OF NORTH-BERWICK.

Patrick Lyon
v.
The Justices of Peace of the Shire of Fife

Date: 22 November 1717

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[See the preceding Case.]

Mr. Patrick Lyon's meeting-house in Kinghorn, being shut up by a sentence of the Justices of Peace, in manner more fully mentioned betwixt the same parties, the 20th instant, the Ordinary reported a separate reason of suspension of the said sentence, viz. that albeit the Lords had formerly refused his bill, in so far as it was founded upon the incompetency of the presbytery's censuring him who was minister of the church of Kinghorn, under the protection of the government. He now insisted on this further reason, that the Presbytery had declared his church vacant, and supplied the church with another minister; to which censure he submitted, and thereby was in the same case with all the other episcopal ministers in Scotland, who had not enjoyed benefices under the protection of the government; and, by the toleration act, it was free for any episcopal minister to set up a meeting-house, as he had done, in the manner directed by the said toleration act; and the justices of peace, and all judges, were by that act obliged to protect them. And if it were in the power of the church judicatories to depose all episcopal ministers who had never joined in their communion, they might, in a great measure, elude the benefit of the toleration act, and make the differences wider, and possibly might even pretend to exercise jurisdiction over them after they had set up meeting-houses.

It was answered,—It was fully cleared, when the suspension was formerly reported, that, by the tenor of the 5th Act, Parl. 1690, and by the 22d Act, Parl. 1693, all the episcopal ministers of Scotland, whether enjoying their churches or not, were subjected to the censure of the church judicatories by law established, with relation to their life, doctrine, or scandal; and, therefore, albeit it were instructed in the most authentic manner, that the suspender's church was declared vacant, and supplied with another minister, upon the account of his having deserted it ever since the indemnity; yet that did not hinder but that the church, by virtue of the foresaid acts of Parliament, might censure for other offences as they had done, and that censure could not be reviewed but by a superior judicatory. If the censure of the church had been after the suspender had applied, in the method directed by the act of toleration, to have a meeting-house, then it might well have been argued, that the toleration act did exeem episcopal ministers in meeting-houses from the jurisdiction of church judicatories: but that is not the case; for, by the sentence of deposition, compared with the suspender's application to set up the meeting-house, it appears he was deposed long before that time; and, therefore, as to the benefit of the toleration, and as to all civil effects, he was to be considered as a laic, whatever his own apprehension might be as to the character of his ministerial function. Yet, as the law had invested the church with authority to censure, even to deposition, he was, by that sentence, rendered incapable of the benefit of the toleration: neither was there much reason to fear any bad consequence, seeing the law presumes the judicatories will deal justly, and there has been little complaint of rigour that way, and superior judicatories of the church have given just redress when there was occasion for it.

The Lords refused also to pass the bill upon that reason.

No. 175, page 240.