of God, recovered our consciences from the tyranny of inquisitors, and our persons from the despotism of kings; and that at the time when the temporal judges lent their whole authority to rivet our

chains.

But Lord Cuninghame has summoned Mr Hallam into court as his witness. We claim the right to cross-examine the witness.

We are not disposed to place implicit confidence in Mr Hallam's judgment, especially when the rights of the church are concerned. He belongs to a class,-Erastian lawyers,-which of all others seems the most hopelessly precluded from being ever able either to apprehend the principles for which our Church contends, or to do justice to the conduct of those who maintain them. Mr Hallam's opinions on ecclesiastical matters will therefore go with us about as short a way as we conceive his political opinions will go with Lord Cuninghame.

We well remember the first time we read Mr Hallam's history, that the strongest emotion roused in our souls, along with our detestation of the tyranny of the Tudors and the Stuarts, and indignation at the cruelty and the papistry of the Anglican hierarchy, was a mingled feeling of contempt and abhorrence at the prostitution and venality of the temporal judges who devoted their undivided power from generation to generation to extinguish the sparks of religious liberty, to crush the first buds of civil freedom, and render each successive monarch uncontrolled lord of the consciences, persons, and properties of the nation.

Thus, for example, while relating the trial of Mr Udall, on suspicion of being one of the writers of the marprelate tracts,' no crime certainly, even had it been true, but of which there was no evidence by which he could be convicted, Mr Hallam* remarks,His trial, like most other political trials of the age, disgraces the name of English justice. It consisted mainly in a pitiful attempt by the Court to entrap him into a confession, that the imputed libel was of his writing, as to which the proof was deficient. Though he avoided the snare, the jury did not fail to obey the direction they had received to convict him.' And sentence of death was passed upon him. But this sentence appeared too iniquitous to be executed even in the eyes of [of whom? the judges? No. No sentence could be too iniquitous in their eyes, but in the eyes of] Whitgift, who interceded for his life, but he died (in prison) of the effects of confinement.' Having related the trial of Barrow, Greenwood, Thacker, and Coppinger, merely for conscience' sake, as no civil crime was laid to their charge, Mr Hallam remarks,— This was according to the invariable practice of Tudor

Const. Hist. of England, i. 201, ed. 4, 1842.

times; an oppressive and sanguinary statute was first made, and next, as occasion might serve, a construction was put on it (by the judges) contrary to all common sense, in order to take away men's lives.' (P. 209.) Have not these judges, then, established good claims to the gratitude and confidence of posterity?

But, perhaps, these judges, although thus iniquitous and merciless in condemning men for religion, may have been more just or lenient to those who were accused of political crimes? We shall see. I have found it impossible,' says Mr Hallam, not to anticipate, in more places than one, some of those glaring transgressions of natural, as well as positive law, that rendered our courts of justice, in cases of treason, little better than the caverns of murderers. Whoever was arraigned at their bar was almost certain to meet a virulent prosecutor-and a judge hardly distinguishable from the prosecutor except by his ermine.' (P. 226.) Are not these judges well entitled to denounce the cruelty and oppression of church courts?

But the judges must have surely partaken of the spirit of liberty that was so evidently gaining ground during the reign of the Stuarts? Let the reader of the reigns of the first James and Charles bear witness. Or, still to appeal to Lord Cuninghame's referee, Mr Hallam, let us hear from him what were the sentiments of the nation towards these protectors of the oppressed from the tyranny of churchmen. The people,' says Mr Hallam, looked with indignation on so prostituted a crew (as the judges). That respect for courts of justice which the happy structure of our judicial administration has, in general, kept inviolate, was exchanged for distrust, contempt, and desire of vengeance.' (P. 435.) And are not these judges well entitled to claim the trust and veneration of the land for their defence of the innocent, who have been, by them, rescued from the fangs of domineering clergymen ? Those who would read more of such strictures may peruse vol. ii. pp. 118, 314, 315, 346, 347, and the trials in which Scroggs, North, Pollexfen, and Jeffries figured, and secured the eternal remembrance of the world-for whatever can render men or judges infamous.

But surely our Scottish judges must have been men of higher regard to their own character, the majesty of justice, and the rights of men? For the sake of our country, we are almost ashamed to confess, that, with the exception of Cromwell's English judges, our Scottish judges, from the Reformation till the Revolution, were worse, if worse there could possibly be, than those Anglican judges whom Mr Hallam denounces.

It is perfectly true, as Mr Hallam says, and as Lord Cuninghame repeats, that these Anglican judges always resisted the jurisdiction of the ecclesiastical courts. Did this, however, arise from

just principles of equity, or a regard to the rights and liberties of the people? On the very contrary, it arose from a mere sectional jealousy towards a rival power. The temporal judges were determined, either at the bidding of the crown, or of a crown minion, to trample upon every thing that was dear to the man or the Christian, but they would suffer no other tools to perform that work. And if this is any ground of praise, as this Note assumes, then we are perfectly willing that it should be awarded.

But in truth this contention of the Anglican temporal and ecclesiastical judges had a deeper origin, and we can say the same of the present collision between our courts and the civil courts of the country. It is not, as some shallow thinkers and superficial observers seem to fancy, a contest between certain parties or party principles in church or state. Viewed more philosophically, it will appear to be a contest between the spiritual and the secular principles in men, or between the ecclesiastical and the temporal elements in human society. Full many a century did the conflict rage, and many a dark and atrocious deed was perpetrated on both sides before the sceptres of the Henrys and the Philips, and the lances of their mail-clad barons were shivered in the collision with the croziers of the Becketts and the Hildebrands of the medieval ages. The victorious Church, not satisfied with what there is reason to apprehend was the primary and the principal, if not the only object of her first attempts-spiritual independence - led astray by her success, and perhaps also by a fear that she never could be free upon her own territory until she made her rival a tributary, trampled in the dust the kingdoms of the earth, till at last, through the result of her perverted principles, and her too successful policy, she became as secular as themselves.

At the Reformation, the kingdoms of the earth obtained the ascendancy. Intent only on securing the purity of the faith from the errors of Popery, apprehending no evil from their zealous coadjutors, the civil powers, and compelled, from the necessity of their position, passively to tolerate many things they could not then, but hoped soon to redress, the Reformers suffered the Church, newly emancipated from the spiritual tyranny of the pope, to fall under the secular, if not the ecclesiastical supremacy of the kings of the earth. Scotland stood alone (for Geneva, in territorial limits, is too insignificant to be called an exception) in its stern determination to maintain, against temporal courts and princes, the spiritual freedom they had wrested from an ecclesiastical power. Many were the sufferings, and varied the success of our martyr and heroic fathers in the glorious struggle. But at last, by the grace of that glorious Head whom they honoured, and by whom they were honoured in return, our fathers were successful, and se

cured from the state a full recognition of the spiritual independence of the kingdom of Christ. The trophies of our fathers' conquests, the territory they had won, we have been hitherto privileged to maintain. But alas! as a judgment for our iniquities, and the manner in which we neglected our talents, our privileges are wrested from our grasp. And now, like Israel under oppression, what most embitters our pain is not what we suffer, but the conviction that we suffer it as a punishment for our sins.

The Court of Session for the time is evidently victorious, or we should rather say, the secular element has again risen into the ascendancy. But shall it be suffered to remain in quiet possession of its unrighteous, and we hesitate not to say, antichristian spoils? We read the signs of the times to very little purpose if we cannot perceive, everywhere throughout Europe, the ecclesiastical element recovering its consciousness of vitality and of power. It was this very revival of spiritual energy that brought our Church into collision with the secular powers, and we have failed for the time only because the secularity introduced into society by the misrule of a century of Moderatism, had not been sufficiently counteracted by the spirituality of a purer time. We were just engaged in quelling a mutiny among our crew, and placing the ship in a condition to brave every adverse element; and had we but a few years more allowed for our operations, we would have bade defiance to the world. But the enemy assailed us while yet unprepared; and although we have fought a battle such as no Church on earth could have done, the mutineers and the enemy have, for the time, prevailed.

6

But do we give up the cause as lost? No, verily we do not. For ourselves, we have never known what it is to despair of a good cause. So long as we have justice and truth on our side-so long as we do not contend for clerical domination, but for popular freedom-so long as we maintain the supremacy of Jesus in his own Church, we are certain ultimately to prevail. We may not live to see it: it may be ours to sow in tears, but our children shall reap the pleasant fruit. Nay, there may be amongst us young men and maidens," who, after the three score years and ten of captivity in Babylon have been fulfilled,' may yet return, and build again the temple of the Lord, and the walls of Jerusalem, when our wars have ceased. Of one thing we can no more doubt than we can doubt that Jesus is King in Sion, and Prince of the princes of the earth, and that is, that our principles must prevail. The principles that were sufficient to wrest our spiritual freedom from the fierce despotism of Morton, the unprincipled chicanery of James, the gloomy bigotry of the first Charles, and the Erastian policy of William, has certainly nothing to fear in our day. Let us but work, and wait in

patience and faith, and he that shall come will come, and will not tarry.'

Throughout this paper we have studiously abstained from saying even what we have thought, and what, so long as we have hearts to beat in our bosom, we can never but think of the recent decisions of the civil courts. From a constitutional and conscientious desire to maintain a proper respect for constituted authority, we have not imitated those ebullitions of passion, nor employed those degrading similitudes,' which, for their own sakes, we deplore to have seen manifested where, of all others, they ought never to have appeared. Since, however, there seems, at this moment, a most dangerous conspiracy abroad-dangerous not less to civil than religious liberty-dangerous not less to dissenting than to established churches-a conspiracy which seems to arise from conceding a species of infallibility to judges, which must issue, unless checked, in the most perilous violations of the constitution, we beg leave to quote one passage more from Mr Hallam.*

Having shown the altered position of the judges since they ceased to be dependent on the crown, and hold their commissions from the country, or the three estates in Parliament, he gives the following caution, which we transcribe, without commentary, putting some of the clauses in italics, and interjecting a few parentheses:

It is always to be kept in mind," says Mr Hallam, "that they (the judges) are still accessible to the hope of further promotion, to the zeal of political attachment [not less in ecclesiastical than in civil affairs], to the flattery of princes and ministers [and the aristocracy]; that the bias of their prejudices as orderly and peaceable men will, in a plurality of cases, be on the side of power; that they have very frequently been trained, as advocates, to vindicate every proceeding of the crown [and of those in authority]; that from the natural jealousy that has always existed between civil and spiritual jurisdictions, they must be prejudiced against ecclesiastical judicatories, and are, in fact, parties in the plea with the Church; from all which we should look on them with some little vigilance, and not come hastily to a conclusion, that, because their commissions cannot be vacated by the crown's authority, they are wholly out of the reach of its influence. I would by no means be misinterpreted as if the general conduct of our courts of justice since the Revolution, and especially in later times, which, in most respects, have been the best times, were not deserving of that credit it has usually gained; but possibly it may have been more guided and kept straight than some are willing to acknowledge, by the spirit of observation and censure which modifies and controls our whole government."

We had not discovered, till we had corrected the proofs of the above paper, that we had omitted to notice one of the most important topics connected with the general subject there discussed; we mean the place assigned by the Church of England to the Christian people in the appointment of pastors over them. Had we

VOL. XVI. NO. 1.

Const. Hist. ii. 347.

C