The Presbytery of Auchterarder v. The Earl of Kinnoull and the Rev. Robert Young

Factual and Procedural Background

The benefice of The Parish became vacant in 1834. The undisputed lay patron (Plaintiff) granted a presentation in favour of Plaintiff (the “presentee”), and the document, together with all ordinary certificates, was laid before Defendant (the local presbytery). Acting under two internal church enactments passed on 31 May and 2 June 1834 (collectively known as the “Veto Act”), the presbytery resolved that, before any trial of the presentee’s life, doctrine or learning, they must consult the congregation. At the moderating of a call only three signatures were obtained, while a roll-call of male heads of families produced 287 dissents.

No allegation of moral, doctrinal, or literary unfitness was lodged, yet the presbytery rejected the presentation solely because of the congregational veto. The patron and the presentee appealed through the church courts without success and then brought an action of declarator in the Court of Session. The court (First Division) held that the civil courts had jurisdiction, repelled the presbytery’s defences, and declared the rejection illegal. Defendant appealed to the House of Lords, where the matter was argued in 1839 and judgment delivered after full speeches by Judge [Brougham] and Judge [Chancellor].

Legal Issues Presented

1. Whether the civil courts of Scotland have jurisdiction to review a presbytery’s refusal to admit a patron’s presentee when that refusal is based solely on a congregational veto created by the General Assembly’s Veto Act of 1834.
2. Whether the Veto Act is ultra vires of the General Assembly because it contradicts parliamentary statutes guaranteeing patrons the unconditional right to present any qualified minister.
3. Whether the presbytery’s actions amounted to an unlawful invasion of the patron’s civil property right of presentation.

Arguments of the Parties

Appellant's Arguments (Presbytery)

• Matters of call, trial, induction, and collation are purely ecclesiastical; only church courts may decide them.
• The General Assembly enjoys inherent legislative power over spiritual affairs; its 1834 Veto Act is therefore binding.
• Acceptability to the congregation is part of a minister’s “qualification,” so the presbytery lawfully declined trials once the parish majority dissented.
• The Court of Session possesses no statutory authority to overrule ecclesiastical acts that do not affect temporalities.
• Even if the Veto Act were invalid, the proper remedy would be new legislation, not judicial interference.

Respondents' Arguments (Patron & Presentee)

• Statutes 1567 c.7, 1592 cc.116–117 and, crucially, 10 Anne c.12 (1712) guarantee the patron an absolute right to present, subject only to presbyterial examination of learning, life, and doctrine.
• The Veto Act adds an extra-statutory popular veto and thereby destroys a civil patrimonial right; it is ultra vires.
• Civil courts have always exercised jurisdiction when presbyteries reject presentees for non-qualification reasons; numerous Court of Session precedents confirm this.
• The presbytery never took the presentee on trials; consequently no ecclesiastical question of qualification arose—only an unlawful refusal to discharge a statutory duty.
• Without civil enforcement, patrons would be left remediless against arbitrary deprivation of property rights.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge [Chancellor] and Judge [Brougham] delivered extensive opinions, reaching the same conclusion independently.

• Statutory Framework: Acts of 1567, 1592, and especially 10 Anne c.12 restore and “for all time coming” confirm lay patronage. Presbytery is “bound and astricted” to admit any minister who is personally qualified.
• Meaning of “Qualification”: A technical term limited to literature, life, and morals; congregational popularity is not part of it.
• Veto Act Ultra Vires: By substituting a popular veto for presbyterial examination, the General Assembly overrode parliamentary statutes—something it has no power to do. Ecclesiastical legislation cannot extinguish civil rights.
• Civil Jurisdiction: The wrong is deprivation of a patrimonial right. Scottish case-law shows repeated civil-court control where presbyteries misapply or ignore statutory duties.
• Pleading & Remedy: The summons properly sought a declarator; specific enforcement could follow if necessary. Declaring the patron’s right is within ordinary Court of Session practice.
• No Conflict with Spiritual Functions: Ordination is unaffected; the presbytery’s refusal occurred prior to any doctrinal trial, so no spiritual jurisdiction was invaded.

Holding and Implications

HOLDING: AFFIRMED. The House of Lords upheld the Court of Session’s interlocutor declaring that:

• The civil courts have jurisdiction over patrimonial rights attached to patronage.
• The presentee was validly presented and illegally rejected; the presbytery’s defences are repelled.
• The General Assembly’s Veto Act of 1834 cannot override parliamentary statutes.

Implications: The decision re-establishes the supremacy of statutory patronage in Scotland and confines ecclesiastical courts to judging qualification in the technical sense. It confirms that civil courts will intervene where church bodies encroach upon civil rights, thereby limiting future attempts to legislate popular vetoes within the established church. No new precedent was created, but existing principles of civil oversight were emphatically restated.