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 the Peace of the Shire of Fife

Date: 20 November 1717

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Mr. Patrick Lyon, late episcopal minister at Kinghorn, being deposed by the Presbytery, set up a meeting-house in the same parish; and, upon application, by certain ministers of the presbytery, to the justices of peace in the shire of Fife, they discharged him from preaching or exercising any part of the ministerial function within the town of Kinghorn, or any part of the shire. Of which sentence, Mr. Lyon offered a suspension, upon the reason of iniquity; in so far as, albeit the sentence of the presbytery could be sustained to deprive him of his benefice in the church of Kinghorn, which he had enjoyed by virtue of the 22d act of Parliament 1693, under the protection of the government, yet it could have no effect to hinder him to have the same privilege that all other ministers of episcopal ordination have, viz. the toleration act; according to which he did present the instructions of his ordination, which he required to be recorded, and craved the assistance of the said Justices of Peace in the enjoyment of his meeting-house.

It was answered,—That he was not in the same condition with other episcopal ministers, because he was deposed by the Presbytery, and so, as to all civil and legal effects, was to be considered as a laic. Neither could the Lords enter upon the consideration of the justice or injustice of the sentence of deposition, which could only be cognosced by a superior church judicatory; in as far as, albeit the episcopal ministers, and especially those under the protection of the government, were not assumed by the presbytery to a share in the government of the church, yet they are subjected to the authority of the church judicatures in Scotland, by the 5th act Parl. 1690, and the 22d act Parl. 1693; which did authorise the ministers and elders, in whose hands the church government was thereby established, to try and purge out all insufficient, negligent, scandalous, and erroneous ministers, by due course of ecclesiastical process and censures; and farther provided, that whatsoever ministers, being convened, shall either prove contumacious, in not appearing, or be found guilty and censured, whether by suspension or deposition, they shall ipso facto be suspended from, and deprived of their stipends and benefices. And, by the said 22d act 1693, there is protection granted to episcopal ministers then in their churches, upon certain conditions therein mentioned, and especially that they apply themselves to church judicatories, in the terms of that act: certifying such as shall not qualify themselves, and apply to the church judicatories, within the space therein limited, that they may be deposed by the sentence of the assembly, or other church judicatories, tam ab officio, quam a beneficio; and such ministers as do apply, and offer to qualify themselves, shall have his Majesty's full protection, ay and while they be admitted and received by the church judicatories; provided always that the benefit of that act shall not be extended to such ministers as are scandalous, erroneous, or insufficient; but these, and all others in like manner guilty, are declared to be liable to the power and censure of the church, as accords. And Mr. Lyon being censured by the church, for suffering the Pretender's proclamations to be read in his church, and praying by name for the Pretender as King James VIII. notwithstanding that he had taken the oaths required by law, and being in use to pray for the King and Queen in their respective reigns.

It was replied,—That the censure, (which was very rigorous and severe, considering that he was under the impression of armed force,) he conceived, was not in the power of the Presbytery; because, all that was intended by these acts of Parliament, was to authorize the church judicatures to disable episcopal ministers from enjoying church benefices; but it was not in their power to unminister, by sentence of deposition, those who were never of the presbyterian communion; and, therefore, though the act 1690, does expressly subject episcopal ministers to the censure of the church, by suspension and deposition, yet that is by the last words of the act explained, so as they shall only be deprived of their churches and benefices; and the design of the act of Parl. 1693, was to the same effect.

It was duplied;—Both acts do clearly subject the episcopal ministers, whether in churches or out of churches, to the censure of the church, even to deposition ; and although, on such depositions, it be declared, they shall ipso facto lose their stipends and benefices, yet that does noways restrict the legal effect of deposition; and the act of Parl. 1693, does further clear the same, and enables the church judicatories to proceed the length of deposition in express terms, tam ab officio, quam a beneficio, and that either in case of not qualifying themselves, as by that act is required, or in case of error or scandal.

The Lords refused the bill of suspension, in so far as it is founded on the reason of iniquity. Vid. 22d November, 1717, infra.

No. 173, page 238.