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his rights. Anne Ayliffe then parted from him for ever-and in a few days their cot was burnt, and themselves dragged to dungeons. And now that in her blindness she has discovered the Trappist, she demands if he had betrayed the secrets of her faith. But he is bound to everlasting silenceand "Jesu," "Memento mori," is his only answer. There are some striking
things here, and some perhaps rather extravagant-nor can we think this mode of acquainting us with what it was time we should be beginning to know, a very happy one. Anne Ayliffe talks herself into a passion-but not a vulgar one-with her mute auditor and herself-and surely there is prodigious energy in the declamation of the Heretic.
"Oh, for some faith, some prophet-saviour-guide!
Haste! Mother, help! She will!-she comes to claim!
And o'er Al-Sirat waves to heaven her hands,
To weigh my life by mercy's scale sublime,
Where one good deed shall balance ten of crime.
And sufferings grace with crowns of martyrdom.
I will! Yes, Allah Kierim! I come.
God is my God! Mohammed is his seer!
"Defame its precepts, and their progress hate,
And men, in arts and arms degenerate grown,
In solitude, the school of genius, bred,
To find by thought the wisdom others read,
Came from the mountain, where he mused sublime
And preach'd,-Ho! Earth and Mortals,-God is one!
"Like that vast wave, which, raised above the main,
Rolis o'er the deep, and breaks with fearful sounds,
For God to see, and Mahomet attest,-
Had swell'd the cry ye kill me for, and curse,--
God has no father, mother, bride, or son,
Not to the Trappist's ear alone had this been addressed-but to the Primate and all the Conclave. With great power of argument and eloquence the Primate refutes the ravings of the unhappy girl-and declares that her hour is come.
"Come then, from them, and theirs, and their abyss,
"Sinful, apostate, desperate, infidel!
Go, laden with thy sin, of sins the worst,
God's Church condemus thee, and thou art accurst!-
Anathema Maranatha ! Go hence!
By power from Heaven, vouchsafed to our control,
"Off! Mercy! Stay! I will recant,-I do.
Ha! have I touch'd the chord, whose nerves unclasp
Then, for confession, let the rest stand clear,
And, Phillip of La Trappe! come thou, and hear!
By him, him only, will I be confest.
Thanks! Must I kneel! Stand further off, the rest!
"Bend thee! Last festival of father's birth,
I gave thee that,-whose omen made our mirth,
And give me back my ivory-hafted gift.
These torturers have prepared, and will effect,
If e'er we served you, if you wrong'd us e'er,
Our cot's two inmates,-Maude, and Chaplain Hyde,
He read beneath the elms of Isleworth,--
Heaven frown'd; the clouds for weeping pall'd a shower;
Ah, vainly thence she smiled to others' sight,
Out with her! out my gates! beyond my grounds!
And spare her sisters' scorn, and wreak her father's curse.
Hyde disappear'd: the world believed-he fled.
We saw him borne the refluent stream along,
His foe was mighty: kin, if any, poor:
And for him none enquired,-not e'en his paramour.
"Yet she went forth: through hamlets up and down,
And danced, and caroll'd, round the block he stain'd.
Of late, attach'd by charities we show'd,
Prejudged a witch, with us she made abode,
Was with us taken, bound with us, I know
And think, lies chanting to her chains below."
What can we do? 'Tis impossible to get another page-and you must imagine for yourselves Anne Ayliffe at the stake.
Edinburgh: Printed by Ballantyne and Hughes, Paul's Work.
No. CCLXXXIX. NOVEMBER, 1839.
ON THE PRESENT POSITION OF THE CHURCH OF SCOTLAND.
THE lively but painful interest excited among the friends of the Church of Scotland by recent judicial proceedings, which, in the opinion of many of her most zealous lay and clerical members, threatened her independence, or even her existence, imposes on us the duty of reviewing the past history of the question involved in the Auchterarder Case, and of endeavouring to present, in a short and intelligible form, the result of what we believe to have been a patient and dispassionate consideration of the subject. Some months have elapsed since the decision of the House of Lords in the Auchterarder Case, the judgment of the Court of Session in the Lethendy Case, and the discussions in the General Assembly respecting the course to be pursued by the Church, with a view to the removal of the difficulties with which she is beset. All undue excitement, therefore, may be supposed to have so far subsided as to render the present occasion well fitted for our purpose; and we entreat the attention and the favourable construction of our readers, while we endeavour, in the first place, to remove certain erroneous impressions, as they appear to us, tend. ing materially to increase the difficulties inseparable from the discussion of this subject, and to expose certain fallacies respecting the true position and functions of the Church, as a compo
NO. CCLXXXIX, VOL. XLVI.
nent part of the British Constitutionfallacies which have obtained the more ready currency, because presented in a captivating form, couched in loose and popular language, and addressed, principally at least, to that portion of the community, of whom we shall be pardoned for saying, that neither their education nor their mental habits have fitted them to sit in judgment on a question of constitutional law.
The most directly important and interesting enquiry, no doubt, relates to the practical expediency of that legislative measure to which the Church has resolved to ask the sanction of Parliament. But it is impossible duly to appreciate the merits of the proposed law, unless we first understand the proceedings which have placed the Church in her present position, and thus ascertain the motives of this application to the Legislature, and the true intent and object of those who advocate a change. Our observations, however, on this part of the case, shall be as concise as possible.
the means of interposing, or the right if it had the means-and that an alteration of the existing law, or, it may be, of the existing constitution, is the only possible remedy-the only possible mode of preventing what, in colloquial language, is called a dead lock. But we doubt very much whether this be a true or correct statement of the question. We more than doubt that a collision, in the proper meaning of the term, can take place between the Civil and Ecclesiastical Courts of this country. To render a collision possible between two separate branches of the same constitution, it is not necessary, we admit, that both should be conversant exclusively with the same subjectmatter, or that the territory, or the nature of the two jurisdictions, should be altogether the same. Civil, criminal, fiscal, or ecclesiastical matter, may equally furnish the materials of a col lision.
But both courts must be armed with equal powers, or powers the same in kind, if not equal in extent, constitutionally if not actually equal, for enforcing its orders and maintaining its authority, otherwise that which is constitutionally weaker must yield, just because the constitution has given it no adequate means of resistance, and because the theory of the constitution must therefore be presumed to be, that the one shall be subordinate to the other. This is a most grave and serious subject; and we should be sorry to be supposed to have broached so important a doctrine unnecessarily, or with out due consideration. Let us be judged, therefore, by the sequel.
The majesty of the Law is supported and vindicated by the exercise of certain powers which the Constitution has intrusted to the civil courts. To give redress for wrong done, and to punish the wrongdoer in the exercise of preventive justice, to prohibit the perpetration of meditated or threatened injury is the peculiar province of such courts, and the free and unrestrained use of these powers is essential to the maintenance of law and order in the state. But it would have been in vain to vest such powers and such discretion in any body of men, by virtue of statute or otherwise, if the means of enforcing their own decrees, and compelling obedience to their own orders, had been at the same time withheld. Therefore it is, that the Constitution has conferred on the
judge the power of execution, or, in other words, has permitted to him the use of physical force, to secure the infliction of the punishment which he has awarded, the payment or performance of the recompense which he has decreed, and the execution of all orders whatsoever, which he in his discretion has seen fit to pronounce. Between any two Courts, armed with such powers as these, a collision (however improbable the occurrence) may take place, as, for example, between any two of the three Courts of Session, Justiciary, and Exchequer. If contradictory orders be issued by two such courts, the unfortunate indivi dual, to whom they are both addressed, has only the alternative of obeying one or the other; he cannot obey both; and his imprisonment will be the appropriate punishment of his inevitable disobedience of the one or the other. The court whose order he has obeyed, may then direct his liberation; and thus, and thus only, a proper collision arises. Let us not be supposed to maintain that both of these two courts must necessarily be right or justifiable, in a moral point of view, in the means adopted to maintain their own dignity, or the authority of the law. On the contrary, either one or both may have erred in judgment, and abused the discretion committed to it. But because a Court has done iniquity, it has not therefore exceeded its constitutional powers; nor does it therefore follow that its commands are brutum fulmen, and may be safely disregarded or despised. Every human institution is necessarily imperfect: and it is in consequence of the impossibility of finding a better tribunal, that judgment has been committed to fallible men, who, like their brethren, may from error in judgment, or even from other and less excusable causes, do grievous and irreparable wrong. But the power being once conferred, by reason of the overwhelming necessity of the case, it follows as an inevitable consequence, that for the wrong done in the exercise of that power there is no remedy, but only a preventive safeguard against its commission in the moral and constitutional responsibility of the judge, which always bears exact proportion to the extent of his power.
The Court of Session, then, as the supreme civil tribunal of this country, being invested with powers such as