This part of the case appears to the Lord Ordinary to be also irrelevant, in respect that the pursuer does not set forth that the Bishop was under any obligation to licence his Curate. This cannot be assumed in the absence of any statement on the subject. It is no doubt said that the Bishop's refusal proceeded on the ground that the Canons of 1863, Art, 18, § 2, enact that no person shall be allowed to officiate, unless he shall conform to the doctrine and discipline of the Church, and that the Curate, entertaining the same objection as the pursuer to portions of the new Canons, refused to sign them; but if the Bishop was not under an absolute obligation to give the licence, unless he could show good cause to the contrary, it does not appear that he can be liable in damages merely in consequence of having acted on this special ground. But while the Lord Ordinary thinks that this is an additional element of irrelevancy, his judgment on the point is rested on the ground first explained.

If the case is irrelevant as regards the conclusions for damages, the existence of these conclusions cannot aid the relevancy of the case stated by the pursuer for redress against the new Canons by reduction and declarator, which must, therefore, be considered upon its own merits.

The defenders do not raise any question either as to the jurisdiction of the Court, or the competency of the action. They maintain that, upon his own showing, the pursuer has not a good case in law for any of the remedies which he seeks. On the other hand, the pursuer does not maintain that he can ask the Court to interfere with, or even to enquire into the Canons of this Church, except for the purpose of giving him redress in a matter of civil right. The peculiarity of his case, apart from the claim for the damages, is that the civil right which he alleges to have been illegally invaded, is his right to insist that the Canons of 1838 shall not be altered, except in conformity with the recognised constitution and acknowledged practice of the Church; aud that the wrong which he seeks to have redressed is the adoption, and continued existence upon the Statute Book of the Church, of the Canons which were enacted in 1863. This is a case very different, as it appears to the Lord Ordinary, from any of the same class which have hitherto been insisted in.

The objections stated by the pursuer to the recent Canons may be generally classed, under the following heads :-(1.) The displacement of the Scotch Communion Office from the position of superior authority, which it held under the former Canons, and the provision that the Communion Office of the Book of Common Prayer shall be used at all consecrations, ordinations, and Synods. (2.) The provision that the Book of Common Prayer shall be the Service Book of the Church for all the purposes to which it is applicable; and, in connexion with this, the provision that at the burial of the dead, the rubrical directions of the Book of Common Prayer shall be complied with, so far as the circumstances of the Church will permit. (3.) A proviso that, (Canon 20, § 4), in special circumstances a bishop shall not be precluded from opening a mission in any part of his diocese, when to him it may seem desirable; and (4.) The power given to a general Synod to alter, amend, and abrogate Canons, and to enact new Canons, in conformity with 13

VOL. II.-NO XVI.

the "recognised constitution" of the church,-in place of its "recognised constitution and acknowledged practice," as required by the corresponding Canon of 1838.

Of these objections, the two first were chiefly dealt upon in the argument, viz., those which relate to the Scotch Communion Office and the Book of Common Prayer. Both of these symbolical books were previously in use and authoritatively sanctioned by the Church; so that its presbyters cannot be heard, in that character, to maintain that either of them contains doctrine which is contrary to the tenets of the Church. Whatever doctrinal differences may exist between them, must be within a latitude which the Church avowedly allowed to itself, and to its members, when the pursuer was ordained, The pursuer, however, says that he individually has conscientious objection! to doctrines which he believes to be contained in the Communion Service and other parts of the Book of Common Prayer, especially the Baptismal and Burial services, and though, having hitherto used the Scotch Communion Office, in his own congregation, its use there is preserved to him by the new Canons, he complains that it is now contrary to the former Canons, to be used at consecrations and Synods, which by the law of the Church he is required to attend.

It does not appear to the Lord Ordinary, that by the slight change of phraseology in the 28th Canon, any substantial alteration is made upon the powers of general Synods to enact or alter Canons. It is not at all clear that the power to establish Missions is now conferred for the first time upon Bishops, and all events, it is not a radical change subversive of either the tenets or Constitution of the Church. On a comparison of the regulations of the Canons of 1838 and 1863, in regard to the Book of Common Prayer, the Lord Ordinary has been unable to discover any change, unless it be the enactment, in express words, that it shall be held to be the Service Book of the Church for all the purposes to which it is applicable. But on an examination of the regulations regarding its use in the Canons of 1838, that seems to have been truly its position at the time of the pursuer's ordination. The enactments for its use were, so far as the Lord Ordinary can see, substantially the same formerly that they are now. No other Service Book was known in the Church, with the partial exception of the Scotch Office for the Communion; and the enactment objected to seems to be merely the distinct recognition of this fact.

to

The Lord Ordinary does not think it necessary to follow the pursuer into his detail of doctrinal differences between the Scotch Communion Office and the Communion Service of the Book of Common Prayer, of which his counsel gave an exposition equally able and judicious. The Lord Ordinary does not doubt that to many well informed and conscientious persons, proceeding upon recognised principles of theological criticism, the two services will appear give utterance to opposite views on points which have not been thought unimportant in the doctrine of the Eucharist. He is convinced that this is conscientiously the opinion and feeling of the pursuer himself. If this were a question as to the misappropriation of property originally destined to the use of a church having the Scotch Office as the sole exponent of its tenets

on this matter, by the substitution of the Service in the Book of Common Prayer, it might be necessary for the Court to enquire, however perplexing and inexpedient such an enquiry would be, as to the existence and theological importance of the alleged differences between the two. The Lord Ordinary is glad to believe that no such investigation is necessary in the present case. For not only is there no question of property or civil right involved, but both Services were distinctly accredited by the Church when the pursuer was ordained. The pursuer complains indeed that he personally is aggrieved by the distinct recognition now given for the first time to the Book of Common Prayer, as the Service Book of the Church—and more practically he complains of the use of the English Communion Office at Consecrations and Synods, where he is required to attend. But the value of his individual objections to these regulations must depend upon his own personal feelings and opinions. At all events, it cannot be tested by an enquiry into the tenets of the Church which had previously accredited both the Prayer Book and the Scotch Office.

Upon a consideration of the pursuer's averments and of the two Codes of Canons which he calls upon the Court to compare, the Lord Ordinary is of opinion that the enactment of those portions of the Canons of 1863 which are objected to, was not such an excess of the admitted powers of the General Synod, or such a change upon the constitution and tenets of the Church embodied in the Canons of 1838, as to give a foundation for the action, if it were relevant in other respects. But while he holds the pursuer's case to be thus radically insufficient, there are other grounds, more obvious on the face of the record, on which he is of opinion that it is not relevant.

He

The pursuer admits that he can only seek redress for a civil wrong; and the wrong of which he is here complaining is the enactment and subsistence of the altered Canons which he asks to have set aside by the Court. does not dispute that the General Synod was competent by the laws of the Church to alter and enact Canons. Indeed, he refers to Canon 33 of 1838, which enacts that a General Synod "has the undoubted power to alter, amend, and abrogate the Canons in force, and to make new Canous," which "being in conformity with the recognised constitution and acknowledged practice" of the Church, shall bind all its members. The Canons therefore, which the Court is asked to treat as being in themselves, by their mere enactment, a civil wrong done to the pursuer, and on that ground to set aside, are internal regulations, enacted by the proper authority, in regard solely to the ecclesiastical and spiritual affairs of the Church itself. The Lord Ordinary does not know of any similar demand having hitherto been made for the intervention of a Court of law in matters touching the faith and discipline of a religious denomination. There is not here any violation of statutory duties and rights, as in the Auchterarder case. Neither is there the alleged perversion of property from its destined use as in Craigdallie v. Aikman 1 Dow 1, and 2 Bligh 529; Smith v. Galbraith, 6 June, 1839; J. C. and Attorney General v. Pearson, 7 Simon 290; and the case of Lady Henley's charity ib. p. 309. Nor is there the allegation of direct patrimonial injury done by an Ecclesiastical body acting illegally, as in the case of Mc Millan v. the Free Church, 23 D., 1314; or of injury by libellous matter contained in an Ecclesi

astical sentence, as in Dunbar v. Skinner, 11 D. 945. In all these cases it was not only alleged that the Ecclesiastical body, or its office-bearers, had violated the law or constitution of the Church, but a direct and substantive patrimonial injury was alleged to have been inflicted on the party seeking redress.

It appears to the Lord Ordinary, that the present action proceeds on a fallacious view of principles which have been recognised in these cases, and of dicta which had reference only to the question then under consideration, when in defence against an action on account of something done by an ecclesiastical body, it was pleaded that the matter being ecclesiastical was solely for the determination of that body itself, it was effectually replied that that was an assertion of exclusive power, a jurisdiction which could only rest upon contract, and that the contract was to be found, if anywhere, in the constitution and laws of the Church. In the discussion which thus arose, the constitution and laws of the Church came to be referred to as "the contract," upon which the question turned, and most correctly. For, by reference to them, the question of jurisdiction, or of the legality of the proceeding complained of, was to be determined. The fallacy of the present action appears to the Lord Ordinary to be, that the pursuer treats the Canons of his church as if they were primarily, and, by their main intention, a contract between the members of the Church. Taking this view, he complains that the terms of his contract have been changed, without his authority and to his injury. Analogies are brought forward, drawn from other associations formed for entirely different purposes, and having nothing equivalent either to the authority which is vested in Synods and other ecclesiastical bodies, or to the regulations for the doctrine and internal Government of a Church. And the Court is asked to deal with the Canons of a Church, as they are from time to time enacted by the proper authority, as if they were nothing else than attempted modifications of the contract, between the members of an association for ordinary civil purposes. This is, as the Lord Ordinary thinks, altogether a fallacious view, and quite unwarranted by the authorities referred to. The Canons of a church are not enacted for the purpose of constituting a contract, but to establish and regulate its doctrine and discipline. The contract, in the sense in which that expression is important in these discussions, may or may not be embodied in the Canons. They are only to be looked at as giving evidence, more or less complete, in regard to it. For that purpose, the Canons of the pursuer's church of 1838, are as available now as ever they If the pursuer can show that he has suffered patrimonial injury by the violation of any civil right, which he possessed under them, the enactment of altered Canons in 1863 will not deprive him of his legal remedy. But it is and as the Lord Ordinary thinks, contrary to all the principles which have been recognised in this class of cases, that the Court should be asked to interfere with the Canons of a church, and that not for the purpose of protecting a party from injury done to him under their authority, but merely to relieve him from what he considers to be the civil wrong done to him by their enactment and subsistence.

were.

new,

The pursuer complains that the new Canons make his position more

unfavourable and insecure. Objecting to them, and therefore refusing to sign, and on some points, to obey them, he is liable, he says, to censure and deposition, and also to lose the benefit of an insurance on his life effected with the Scotch Episcopal Friendly Society. None of these evils have yet come upon him. When they do, or if they are threatened, he will be in a position properly to try whether he is protected from them by the Constitution of the Church, or as he prefers to call it, the Contract embodied in the Canons of 1838.

By the declaratory conclusions, the Court is called upon to deal with the Canons of 1863, by declaring first, that it was ultra vires of the General Synod to enact them, and secondly, that the pursuer is entitled to perform his functions as a clergyman in conformity with the Canons of 1838. This is just asking the Court to regulate the internal affairs of this Church, in regard to the matters, as to which the pursuer alleges that the two sets of Canong differ, the more important of which are alleged by him to relate directly to questions of doctrine. Into matters of this kind, Courts of Law have always refused to enquire, except for the purpose of vindicating a civil right, or protecting against a civil wrong. Even, in that case, the Courts have never given the remedy, by altering or setting aside proceedings taken by the ecclesiastical authorities within their proper province; and least of all, by making or unmaking regulations for the doctrine or discipline of the Church. The pursuer, indeed, does not ask the Court to pronounce as to the theological soundness of the doctrines in question, but only as to whether they are not now brought in as an innovation. But civil courts do not undertake to protect Churches or individual Members of Churches, from the influx of new doctrine. They only interfere to prevent the uses of property being perverted, through its being retained by a majority, who only keep the name, while they have abandoned the principles of the Church to which it was devoted. The proposal to give such a remedy, as is here asked, against the Canons regarding the power of the Bishops to establish Missions, and the power of General Synods to make and alter Canons, may appear less startling because they are not strictly matters of theological doctrine, though they are not the less polemical for that reason. But the Court will as little interfere to impose upon a dissenting body immutability of Church Government, as immutability of doctrine; while in either case it will protect property from being diverted, or persons from being injured, by the consequences of changes in doctrine or constitution.

The last of the declaratory conclusions, brings out very strongly what is, in the view of the Lord Ordinary, the leading fallacy on which the action is founded. The pursuer does not allege that he has been interfered with, in the exercise of his functions. On the other hand, the defenders do not and cannot maintain that he can be prevented exercising all these functions, in any manner he prefers, and free from their control, if he so pleases. He has only to renounce his connexion with them. But the conclusion of the action is, that it shall be declared that he is entitled to celebrate divine worship, and all the other services, and to administer the Sacraments and all other rites of the said Church in conformity with the Canons of 1838. That is to say, the