§\v>v>'^>y<,r >,^'^'-\\ ». . »ai>., .w » » irt«»« » ^ >» 3 ig>jila / IRINCETON, N. J. -' '^, Presented by Mr. Samuel Agnew of Philadelphia, Pa. BX 9084 .M64 ^ ""tir'^iak n""^^ WellwoodJ A v^' J°^^Bart., 1809-1881 A vindication of the Free f^hnroh maim of Riaht A VINDICATION OF THK FREE CHURCH CLAIM OF RIGHT. A VINDICATION OF THE FREE CHURCH CLAIM OF RIGHT. BY / SIR HENRY WELLWOOD MONCREIFF, BART., D,D. WITH AX APPENDIX RELATING TO ALLEGED FACTS. EDINBURGH: MACLAREN & MACNIVEN, PRINCES STREET. 1877. EDINBL'RGH : PRTNTE1> BY LORIMEB AND GIXLIES, t'LYDE STREET. X Y PREFACE. The Free Chiireli of Scotland appeals to the Claim of Eight, Declaration, and Protest, adopted by the General Assembly of the Established Church in 1842, as exhibiting the foundation of scriptural principle and constitutional privilege on which she builds her peculiar position. In the memorable Protest read and laid on the table in presence of the Royal Commissioner on the 18th of May, 1843, those who signed it protested that the Claim agreed to in the previous year, and since brought under consideration of Parliament, must be considered as setting forth the true constitution of the Church of Scotland, and that no Assembly must be regarded as a true Assembly of that Church which is not held on the footing of it. The document, therefore. viii Preface. is a great historical paper in the estimation of well-informed Free Churchmen, and of many other people. It seems desirable that, at the present stage of ecclesiastical progress, the substance of it should be exhibited in a different form fnmi the technical one which its original occasion called for. The object of the present work is to contribute something towards a clear perception of its grounds and meaning by the existing and by future generations. I know I am liable to a charge of great presump- tion for appearing to enter the sphere of legal opinion and criticism, especially Avliere judicial decisions are concerned. It might, perhaps, have l)een more suitable for a, professional lawyer to have dealt with the subject. But it is the business of a lawyer to deal rather with the question what the law is now as actually declared, than with what he may think ought to have been formerly declared, and the subject of our Claim of Kight is a complex one, embracing more than one class of questions. Its vindication requires that the views through which it was rejected and overborne should be freely canvassed. I have endeavoured, Preface. ix however, to perform the task of recording and illustrating the conclusions of thoroughly com petent parties, and do not expect that the smallest value should be assigned to my own conceptions, except in so far as they seem to be supported by the authorities which I quote. I pretend to no originality in any portion of what I have written. I acknowledge my obliga- tions to the works of Dr. M'Crie the biographer of Knox and Melville, the late Principal Cunningham, the late Dr. Robert Buchanan, Mr. Taylor Innes, and several other A\Titers. I have not aimed at presenting anything which is really new, but simply at a compilation, by which many con- vincing statements and arguments may be set forth together in their special relation to a particular document. Ciniumstances in my history and posi- tion have shut me up to the duty of undertaking this compilation. I trust that it may be blessed for the highest ends. And I hope and pray that, havino- in some measure executed what seemed laid upon me, I may be now enabled, with more earnest- ness and freedom than before, to follow out the immediate purposes of a gospel ministry, in preach- X Preface. ing the cross of Christ, and striving for the salva- tion of sinners, the edification of Christ's peoph% and the unity of His Church. In the Appendix, I have dealt specially with the allegations of Andrew Macgeorge, Esq., writer, Glasgow, who published successive pamphlets under the name of " Veritas," and who has since put them together in a collected form, with his own name attached to them. I have had no desire to treat this gentleman otherwise than resjDectfully and courteously. But he has used very strong lan- o'uage ao'ainst the ^Tounds of Free Church move- ment, and it is impossible to treat his statements adequately without decisive condemnation. H. WELLAVOOD MONCEEIFF. Edinburgh, May^ 1877. CONTENTS. PART I. Introductory — Its Principles and the Corresponding Lines of Action. CHAPTER I. - The Old Foundations of Free Church Principle. 1 AUK 1. Statements in the Westminster Confession of Faith, . . 1 2. Views of Reformers before the time of Andrew Melville, . . 4 3. Views of Andrew Melville as embodied in the Second Book of Discipline, ....... ^ 4. Views held in Scotland during the Period of the Second Refor- mation, from 1638 till 1660, . . . . .12 5. The Scriptural Foundation for the Views set forth at these successive Periods, . . . . . .18 CHAPTER II. Use made of the Old Foundations in Support of Free Church Views. 1. Interpretation of the Old Foundations by Free Churchmen, . . 23 2. Application of the Old Foundations to Particular Cases before the Disruption, . . . . . . .29 3. Application of the Old Foundations to Particular Matters after the Disruption, . . . . . . .44 xii ContevU. CHAPTERIII. Relation of the Old Foundations to tju; Okder and Harmony OF National IjAW and Justice. I'AOE 1. Their Relation to the connection with Contract or Compact of the Civil Advantages enjoyed by a Church, ... 59 •2, Relation of the Old Foundations to the Freedom from alleged Contracts or Compacts which is involved in the Spiritual Obligations of Churches, . . .62 3. Relation of the Old Foundations to a well-ordered Harmony between Church and State, . . . . . UT CHAPTER IV. Impressions and Expectations regarding the Claim of Right BEFORE and AT THE DISRUPTION. 1. Impressions and Expectations from May 1842 till May 1843 as to its Effect on the Pending Conflict, . . . .73 2. Impressions and Expectations as to the Effect upon the Condition of the Free Church after the Disruption, . . .77 PART 11. Contents and Vindic;ation of the Claim of Eight. CHAPTER I. Its Occasion in Alleged Assaults by the Court of Session, . 82 CHAPTER II. Statement of Foundations for the Claim of Right. 1. Essential Doctrine of the Church regarding her Distinct Govern- "lent, ........ 86 2. Things Scripturally comprehended under the Distinct Government, 88 3. Things excluded from the Distinct Government, . . .89 -r PEXIIOSTUIT Coiiten THSOLOGIG^ti ^^•Li ^^-^. CHAPTEH III. The Interpretation of Constitutional Law. 1. References to the Law of Patronage and to the Principle of Non- intrusion, .... 2. Value of an Appeal for the Claim of Eight to the Opinions of the Minority in the Court of Session, 3. Conclusions on the Jurisdiction Question by the Minority in the Court of Session, Lord Fullerton, Lord Moncreiff, Lord Jeffrey, Lord Cockburn, Lord Ivor}', Lord Glenlee, 4. Legal and Judicial Practice on the Jurisdiction Question during the Last Century, 0. Argument from Acts of Parliament, Act 1690, chap. 5, The Acts of 1.567, chap. 6 and 7, . Act 1569, chap. 12, Acts of 1592, Act of Charles II., chap. 1, Act of William and Mary, 1690, chap. 5, CHAPTER IV. The Encroachments op the Court of Session. 1. Purposes of its Institution and Limits of its Power, . . 191 2. Relation of the Encroachments to the First Judgment of the House of Lords in the Auchterarder Case, . . . .194 3. The Particulars of Encroachment, . . . . .195 CHAPTER V. Effect of the Encroachments upon the Position of the Church. 1. What could the Church Courts conscientiously do in Submission to the Encroachments '. . . . . .201 91 95 98 101 107 114 119 124 127 129 165 165 165 167 171 175 176 xiv Contents. PAGE 2. What were the Church Courts prevented by conscience from doing in Submission to the Encroachments 1 . . . • '-^02 8. What must the Church do in the Face of such Encroachments ? . 203 CHAPTER VI. The Parties in whose Name and Behalf the Claim of Right was made, and what it amounted to. 1. For whom was the Claim made ? . . . . .204 2. To what chd the Claim amount ? ' . . . . . 205 CHAPTER VII. Exhortations founded on the Claim of Right and embodied in it. 1. The Exhortation to a Testimony, . . . . .208 2. The Exhortation to Endurance and Self-sacrifice, . . . 209 3. The Exhortation to Prayer, ..... 210 CHAPTER VIII. Results of the Claim of Right. 1. Its Practical Results at and after the Disruption, . . . 212 2. Legal Results of the Claim of Right, . . . .216 CHAPTER IX. The Reasonableness of the Claim of Right, . . .218 CHAPTER X. The Obligations which the Claim of Right lays upon Consistent Free Churchmen. 1 . The Maintenance and Exercise at all Hazards of a Jurisdiction in Ecclesiastical Matters which submits to no control by any Power except that of Christ's Word and Ordinances, . . 220 Contents. xv PAG£ 2. Reasonable Endeavours on Fitting Occasions to persuade the Scottish Nation and the British Legislature that the Principles of the Claim of Right ought to be conceded in Ecclesiastical Arrangements for Scotland, ..... 220 3. The Language of the Claim of Right requires us to Strive and Pray that the Benefits of a Church Establishment, according to the Sagacious Conceptions and Lofty Aspirations of Dr. Chalmers, may be secured for the Scottish Nation, , .223 Conclusion, . . ... . . . . 228 APPENDIX. 1. The Claim, Declaration, and Protest anent the Encroachments of the Court of Session, Act XIX., Assembly 1842, . . 231 2. Historical Mistakes of ]\rr. Macgeorge, .... 261 3. Mistakes of Mr. Macgeorge regarding the Old Foundations, . 273 4. Mistakes of Mr. Macgeorge regarding Essential Distinctions, . 275 5. Mistakes of Mr. Macgeorge regarding the Value of Judicial Opinions, . . , . . . .280 6. Mistakes of Mr. Macgeorge with regard to Cases in the Last Century, ....... 282 7. Mistakes regarding Scottish Legislation, . . . .283 8. Mistakes of Mr. ]\Iacgeorge regarding the Encroachments of the Court of Session, . . . . . .284 9. Mistakes of Mr. Macgeorge as to the Character of the Free Church Claim, ....... 286 10. Mistakes of Mr. Macgeorge as to Patronage and the Veto Law, . 288 11. Mistakes of Mr. Macgeorge as to the Alleged Spiritual Independ- ence of the Existing Established Church, . . . 290 Special Appendix on the Cardeoss Case, . . . 291 j.Lw JUN Ibo; .^^ VINDICATION OF THE CLAIM OF RIGHT. PAET I. CHAPTER I. THE OLD FOUNDATIONS OF FEEE CHUECH PRINCIPLE. 1. Statements in the Westminster Confession of Faith. My object leads me to reasoQ chiefly with persons who adopt the statements of the Westminster Confession. It indicates that civil governments are required to re- cognise Christ as Heir of all things, and as the supreme Lord and King of all the world. It represents them as having both authority and duty to honour His name, countenance His Gospel, and promote the welfare and progress of His Church. But it expressly declares, on the other hand (chap, xxiii. 3), not only that " the civil magistrate may not assume to himself the administration of the Word and sacraments," but that he may not B Vindication of the Claim of Right. assume to himself *' the power of the keys of the kingdom of heaven;" and it further asserts (chap, xxx.) that " the Lord Jesus, as King and Head of His Church, hath therein appointed a government in the hand of church-officers, distinct from the civil magistrate." These expressions appear to signify that there is, by Christ's appointment, a _po^(;er of government in His Church, which it is the sacred duty of church-officers to carry on with a simple regard to His own voice in His Word, and without submission to interference by civil rulers. The Duke of Argyll takes for granted, in his essay on our ecclesiastical history, that such is the meaning of the Confession. He represents it as saying of Christ and Church government, *' That He has ordained that this government should never, under any circumstances, be in- terfered with by, or be merged in the civil government of society." ^ The Duke disputes the proposition, but his description is accurate ; for by '' the civil magistrate " is evideatly meant, not subordinate magistracy, but the supreme government of the State ; and if Christ has appointed the power of ecclesiastical government to be distinct from it, no circumstances can, on Christian principles, justify interference with the distinctness, or warrant the merging of ecclesiastical in civil government. The questions remain, " What is the sphere of action assigned by Christ to the distinct government? What 1 Essay, Note H, p. 317 ; also Appendix, No. TIL Westminster Confession. are the matters over which its power is exclusive ? " The statements of the Confession involve a belief that decisive answers to these questions can be found in the Word of God. This was the belief of the General Assembly when adopting it in 1647. Upon this belief we now take our stand, and appeal to the Westminster Confession as teaching that every truly Christian Church has, by appointment of her Divine Head and King, a jurisdiction absolutely distinct from and thoroughly co-ordinate with the jurisdiction of the particular civil government under which in temporal things she is placed, and that an obligation rests upon her, in faithful- ness to Him, to assert and maintain it at all hazards. By spiritual independence we mean the liberty of a Church to fulfil the obligation thus laid upon her by her Lord. Besides the principle of Spiritual Independence, the framers of the Claim of Right contended for what they called the principle of Non-intrusion in the settlement of ministers. That principle is not announced in the Westminster Confession nor in the Free Church Formula. It is not, therefore, regarded by the Free Church as a matter of faith to which all ministers and elders are bound. But it was felt by the majority of the General Assembly from 1834 till 1848 to be matter of scriptural obliga- tion, upon which they were conscientiously obliged to act when the power of the Assembly was in their hands. Vindication of the Claim of Right. 2. Views of Keformers before the time of Andrew Melville. Scottish conceptions in 1647 on the relations of Church and State sprung from discussions commenced more than a hundred years previously. " The magis- trate," exclaimed OEcolampadius, the Swiss Reformer (in a letter to Zuingle before 15 30, as quoted by Merle D'Aubigne), '' who should take away from the Churches the authority that belongs to them w^ould be more in- tolerable than antichrist himself. . . . The hand of the magistrate strikes with the sword, but the hand of Christ heals. Christ has not said. If thy brother will not hear thee, tell it to the magistrate; but tell it to the Church. The functions of the State are distinct from those of the Church." He asserted his views before the senate of Basle and a Synodal Assembly with temporary success. But the powers of this world and the attrac- tions of their support were too strong in their influence over the great body of continental Reformers, who, without much consideration, and having their attention fixed on the contest with Rome, allowed the Churches founded by them to fall into an Erastian condition. Calvin, when expounding in his Commentary the passages of the New Testament which contain instruc- tions and promises relative to the keys of the kingdom of heaven, to the remission and retaining of sins, and to the Er shine of Dun. Divine presence with the Churcli, gives them an applica- tion to the action in his own time of the Reformed Churches as distinct visible societies. He confirms this exposition in his Institutes, but it took full practical effect only in Scotland, where the continued opposition of the court to the Protestant cause gave opportunity to the Reformers for independently constructing an ecclesiastical system according to conceptions taken from the Word of God. In his first sermons at St. AndroAvs in 1647, John Knox taught that " no mortal man could be head of the Church; " and in 1561 he and his coadjutors produced the First Book of Discipline, which assumes throughout that the Church had by Divine authority a distinct province, in which she was called to act with vigour.^ In the same year Knox declared that " to take away the freedom of Assemblies was to take away the Gospel." From that date till 1567 the General Assemblies of the Church met regularly, and acted upon their Book of Discipline without the sanction of secular authority. In 1571 we find Erskine of Dun, in a letter to Resfent Mar, maintaining that " God hath given a spiritual jurisdiction and power to His Church, and to those that bear office therein, and a temporal jurisdiction and power to kings and magistrates." '' Both the powers," he says, " are of God, and most agreeing to the fortifying one of the other, if they be right used. But when the cor- ^ Appendix, No. III. 6 Vindication of the Claim of Right. ruption of man enters in, confounding the offices, usurp- ing to himself what he pleases, nothing regarding the good order appointed of God, then confusion follows in all estates. The Kirk of God should fortify all lawful power and authority that belongs to the civil magistrate, because it is the ordinance of God ; but if he pass the bounds of his office, and enter within the sanctuary of the Lord, meddling with such things as appertain to the ministers of God's Kirk, then the servants of God should withstand his unjust enterprise, for so are they commanded of God." Up till 1574 there had not been much leisure or occasion for defining the limits of civil and ecclesiastical jurisdiction in Scotland. The absence of the principle of toleration tends in some measure to obscure the character of the opinions expressed at that period. But the action of the Church had implied what was after- wards more exactly set forth. The First Book of Discipline laid a foundation for the principle of Non-intrusion, by the statement that ''it appertaineth to the people and to every several congre- ofation to elect their minister." 3. YiEWS OF Andrew Melville as embodied in the Second Book of Discipline. In 1674 Andrew Melville returned to Scotland, after an absence abroad for ten years spent in study. His Andrew Melville. biographer, Dr. M'Crie, has proved that his academical course from his twelfth till his thirtieth year had made him pre-eminent in high cultivation and scholarship ; that his acquaintance with both the classical and the Oriental languages was extraordinary ; and that his theo- logical knowledge was full and readily available, as well as deeply grounded. Intercourse with professors and divines on the Continent, and familiarity with agitated questions, completed the qualifications which that accurate author has ascribed to him for performing an important part in Scottish affairs. He appeared first of all as an ardent scholar, zealous for the progress of sound literature in his native land. The evidence is abundant that in his time Presbyterian scholarship became superior to that of contemporary Episcopacy. The pressure of events led Melville at last to concen- trate his powers on the vindication of what he regarded as a scriptural system of ecclesiastical order in opposition to the Erastianism of James and his courtiers. He had able associates. The Duke of Argyll and others repre- sent the prominent ecclesiastics of that day as generally inferior to Knox and their other predecessors ; but Dr. M'Crie shows that they do so groundlessly. The real difference is, that the knowledge of the later generation was more enlarged and accurate, and their opinions more matured. The Second Book of Discipline was framed under their 8 Vindication of the Claim of Right. influence in 1 678. It represents the principles of Melville, and is admitted by the most conspicuous opponent of the Church of Scotland in the conflict before the Disruption — the Dean of Faculty Hope — to contain the doctrine regarding spiritual independence which was asserted by the General Assembly in 1838. It declares that the Church has a power or authority granted by God the Father through the Mediator Jesus Christ, having ground in the Word of God, to be put in execution by those to whom the spiritual government is committed by lawful calling; that this power is different and distinct in its own nature from the civil power, though they are both of God, and tend to one end if rightly used ; that the ecclesiastical power flows immediately from God and the Mediator Jesus Christ, and is spiritual, not having a temporal head on earth, but only Christ, the only Spiritual King and Governor of His Church, who rules through His Word and Spirit by the ministry of men ; that it should lean upon the Word immediately, and be taken from the pure fountains of the Scriptures — the Church hearing the voice of Christ, and being ruled by His laws ; and that the exercise of both the ecclesiastical and the civil jurisdiction cannot stand in one person ordinarily — the civil power being called the power of the sword, and the ecclesiastical the power of the keys. The statement is also made that not only ought the civil magistrate neither to preach, minister the sacra- Second Booh of Discipline. ments, nor execute the censures of the Church, but that he has no right to pf'^escrihe any rule how these things should he done, although he may command the ministers to observe the rule commanded, in the Word, and punish the transgressors by civil means. The liberty allowed by this last statement to the civil magistrate in ecclesias- tical matters may be thought to involve those intolerant ideas which the most enlightened men of the sixteenth century had not abandoned. But that liberty was manifestly not designed by the authors of the Second Book of Discipline to affect the principle of an absolute spiritual independence in the government of the Church. For the only thing which they allow the civil magistrate to enforce upon the ministers is the rule commanded in the Word. In the event of the superior ecclesiastical authorities agreeing with the civil power on the subject of that rule, it may have been intended that then the latter mifrht, if need be, enforce the view of those authorities upon individual miaisters by civil pains and penalties. In case, however, of disagreement between the two powers, it is evident from the previous declarations that the Church was held to be under obligation to Christ to take the rule of His Word, not from the civil power, but exclusively from the voice of Christ speaking to her own mind and conscience by His Spirit in her reading of that Word. Thus a difference in the interpretation of the Word might possibly, according to the intolerant doctrine 10 Vindication of the Glaiyn of Right. of the time, oblige the civil magistrate to persecute the Church, and oblige the Church to encounter persecution in followinor what she believed to be the mind of her Lord in the exercise of her spiritual functions. But no such difference could bind the Church to surrender the power of the keys into the hands of the civil magistrate, nor excuse her in departing from her own conscientious reading of Christ's Word in the use of that power. The several announcements of the Book of Discipline can only be reconciled by assuming the possibility of collision between two distinct and independent jurisdictions. According to those announcements, the civil government must either respect the absolutely distinct and inde- pendent government of the Church which it recognises, or must cease to recognise — or perhaps even to tolerate — that Church at all. The Dean of Faculty Hope denied that the portion of the Second Book of Discipline to which I have referred was sanctioned by the Act of Parliament in 1592, and objected to it on the ground that it claimed a power of ecclesiastical government as a matter spiritual flow- ing directly from Divine authority, and thereby gave foundation for the claims of the Church of Scotland in 1839. His representation of its meaning is borne out by the manner in which its declarations were acted on. Montgomery, appointed Archbishop of Glasgow by authority of the Privy Council at a time when Episco- Interview with King James. 1 1 pacj stood condemned by the General Assembly, accepted of the appointment upon terms which were very degrad- ing, and his conduct was regarded by the Church as subjecting him to censure. The Church Courts went firmly on in the exercise of their independent jurisdiction, though physical force had been brought to bear upon them. Sentence of excommunication was pronounced against Montgomery, and when that sentence had been declared null and void by the Privy Council, the General Assembly, guided by Melville, drew up a remonstrance, complaining that the authority of the Church had been abrogated, and that the two jurisdictions which God had divided were confounded. The course thus taken by the Church in this and other cases bore fruit afterwards, when in 1592 her Discipline was to a large extent ratified by Parliament. The whole of the book had been adopted by the Assembly in 1581, and in an interview with King James in 1596, Melville told his majesty that there were two kings and two king- doms in Scotland — King James, the head of the common- wealth, and Christ Jesus, the King of the Church ; and that those whom Christ had called and commanded to watch over His Church had power and authority from Him to govern His spiritual kingdom, both jointly and severally, which power and authority no Christian king or prince should control and discharge, but fortify and assist.^ ^ Appendix, No. III. 12 Vindication of the Claim of Right. The ecclesiastical independence thus asserted was afterwards overborne, partly by policy, and partly by oppression. But the particulars which I have men- tioned prove that, at an era of high Presbyterian attain- ment in scholarship and knowledge, and of intense opposition to Popish and Prelatic claims, the most pro- minent and accomplished men contended for that very distinct and absolutely co-ordinate jurisdiction in the Church which it is now the fashion to stigmatise as corresponding to the usurpations of Rome. Let it be remembered, also, that shortly after the production of the Second Book of Discipline, Beza, the successor of Calvin at Geneva, and the special opponent of Erastus, expressed in a letter to the Chancellor Glammis a decided judg- ment in favour of the principles set forth in that book. As regards the principle of Non-intrusion, the Claim of Right specially refers to the assertion of it in a declaration of the Second Book of Discipline, " that no person should be intruded into any of the offices of the Church contrary to the will of the congregation." That book also condemns the system of patronage, as what ought not to be allowed in a time of Reformation. 4. Views held in Scotland during the Period of the Second Reformation, from 1638 till 1660. Political events compelled Charles the First to call a meeting of the General Assembly in 1C38. He hoped Alexander Henderson. 13 to conciliate its members by delusive expectations, and was resolved not to yield the principle of the royal supremacy. But the Christian persistency of the minis- ters and elders overcame his policy, and reasserted the co-ordinate jurisdiction and spiritual independence of the Church. Led by Alexander Henderson, their modera- tor, they declined to surrender what they counted their scriptural liberty in ecclesiastical government. And when the Royal Commissioner on this account dissolved the Assembly, they continued their sittings for a month, on the footing of their right to meet independently of royal warrant, and restored the arrangements required by the Second Book of Discipline. The Church pro- ceeded in the same line of action while she had liberty to do so, and maintained her ground throughout the persecutions which preceded the Revolution of 1688. An attempt has been made, by quotations from the writings of George Gillespie and Samuel Rutherford, to defend an interpretation of the twenty- third chapter of the Westminster Confession which would contradict the doctrine of an absolute distinctness and indepeudence in ecclesiastical government. But the late Principal Cunningham has shown that these quotations only prove the influence which intolerant views still exercised over these excellent men, so as to make them extend the magistrate's power, with reference to external things affecting the Church, to a point which would now bo 1 4 Vindication of the Claim of Right. regarded as involving persecution. They have nowhere stated that the civil magistrate is warranted, on any account, in exercising authoritative control over the supreme authorities of the Church in the exercise of their functions, and still less that those authorities are at liberty upon any account to depart from their own judgment of what the Divine Word requires, out of defer- ence to the civil power. There is one passage in Rutherford's writings which is dwelt upon as if it contradicted this representation — a passage in which he distinguishes between an appeal from a Church Court to the civil magistrate and a com- plaint to him as the only refuge against a sentence contrary to the Word of God. He denies the com- petency of an Oyppeal, but holds such a complaint as he speaks of to be warrantable. But the nature of the case referred to evidently implies a man having recourse, not to a higher court, but to the supreme power of the State, for the vindication of truth. And as the question would evidently turn on the view taken of what the Word of God requires, the Church could not, even according to this statement of Rutherford, be under obligation to obey the civil power in opposition to her own conscientious interpretation of that Word. There is not a sentence in the writings either of Rutherford or Gillespie to warrant the modern claim on the part of the State or its Civil Courts to coerce or interdict ecclesiasti- Gillespie and Baillie. 15 cal action for the sake of enforcing civil rights, or carry- ing out the judgments of secular politicians on questions of expediency. It is needless, however, to examine particularly the several statements adduced, because, in relation to Gil- lespie, the inferences drav/n from them are contradicted by a document which has been overlooked by the parties making the attempt referred to, but to which Dr. Cun- ningham has called attention. I refer to a pamphlet printed by the General Assembly of 1647, entitled '' An Hundred and Eleven Propositions regai^ding the Ministry and Government of the Church." These pro- positions were prepared by Gillespie and Baillie. It is asserted in this document that the Church ought to be governed by no other persons than ministers and stewards preferred and placed by Christ, and after no other manner than according to the laws made by Him ; that, therefore, there is no power on earth which can challenge to itself authority or dominion over the Church ; that the voice of no one should take place, or be rested upon, in the Church but the voice of Christ alone ; that Jesus Christ, the only Head of the Church, hath ordained in the New Testament not only the preaching of the Word and administration of the sacraments, but also ecclesi- astical government, distinct and differing from the civil government ; that His will is to have such a government distinct from the civil in all His Churches everywhere, as 16 Vindication of the Claim of Bight. well those which live under Christian as those under infidel magistrates, even unto the end of the world ; that the civil power and the ecclesiastical ought not by any means to be confounded or mixed together; that by marvellous vast differences are they distinguished one from the other, and the rights of both remain distinct ; that the power ecclesiastical dependeth immediately upon the positive law of Christ alone, and belongs to the special kingdom which He exercises in the Church alone, and which is not of this world ; and that the civil power, in dealing with the Church, can be rightly occupied only about its outward business or external things, which reach only to the external state and condition of its ministers and members. It is undoubtedly contended at the same time, in more than one of these propositions, that the civil magistrate is called upon to maintain the truth of God, and, in some circumstances, to punish by civil pains those who oppose it ; that in ordinary circumstances he may and ought to do this on some occasions in the way of giving effect to the judgment of the Church as not only an institution of Christ, but also a recognised institution of the country ; and that in times of disorder, when he considers her to be departing from the truth, it is his duty to interpose for the purpose of asserting, defending, and promoting it. But the statement is carefully guarded by the reservation that this duty does not put him at liberty to interfere in The CXI. Propositions. 17 ordinary times witli the action in their own department of the supreme ecclesiastical authorities. The clearest and most significant discovery of the views of these men is made in the eighty-seventh and eighty- eighth propositions. In the eighty-seventh proposition it is stated that '' as in the commonwealth so in the Church, the error of inferior judgments and assemblies, or their evil government, is to be corrected by superior judgments or assemblies, and so still by them of the same order, lest one order be confounded with another, or one govern- ment be intermingled with another government." '' What shall now," the authors ask in the next sentence, '' the adversaries of ecclesiastical power object here which those who admit not the yoke of the magistrate may not be ready in like manner to transfer against the civil judi- catories and government of the commonwealth? seeino- it happeneth sometimes that the commonwealth is no less ill governed than the Church." The eighty-eighth proposition is in the following remark- able words : — " If any man shall prosecute the argument and say that yet no remedy is here showed which may be applied to the injustice or error of a national synod, surely he stumbleth against the same stone, seeing he weigheth not the matter with an equal balance ; for the same may in like manner fall back and be cast upon Parliament, or any supreme senate of a commonwealth ; for who seeth not the judgment of the supreme civil 18 Vindication of the Claim of Right. senate to be nothing more infallible ; yea, also in matters of faith and ecclesiastical discipline, more apt and prone to error (as being less accustomed to sacred studies) than the judgment of the national synod ? What medicines then, or what sovereign plaisters, shall be had which may be fit for the curing and healing of the errors and mis- carriages of the supreme magistrates and senate ? The very like, and beside all this, other and more effectual medicines, by which the errors of national synods may be healed, are possible to be had." ^ Thus Gillespie and his supporters unquestionably held that the two powers must stand upon an equal footing, and that the Church possesses, by Divine authority, an absolutely distinct and co-ordinate jurisdiction. The leaders of the Disruption in 1843 Considered the West- minster Confession as teaching the same doctrine. The statement of the Second Book of Discipline on the subject of Non-intrusion was confirmed by the Assembly of 1638. 5. The Scriptural Foundation for the Views set forth at THESE successive PeRIODS. The fundamental question remains, What scriptural basis is there for the views of Melville and Gillespie, or for the declaration in the Westminster Confession ? The arcfument on this part of the subject appears to me to lie in a nutshell. ^ See Appendix, No. III. In the Apostolic Age. 19 Without discussing the application of particular texts, I may appeal to careful inquirers who compare our Lord's instructions to His Apostles and disciples with the history contained in the Book of Acts, and with the directions given in the Apostolic Epistles, to say whether the several companies of professedly converted persons in different places were not formed in the Apostolic age into special societies by Divine authority, and whether rules were not given for their guidance through an inspired voice. Even those who question the permanent obligation of the arrangements cannot deny that they were binding at the time under Apostolic direction. It may be said with truth that the promises of Christ involved the gift of inspiration and miraculous working for the first institution and order of a visible Church, or of visible Churches. But it must surely be admitted that, to some extent or in some sense, functions of ruling as well as of teaching were appointed to be exercised even by uninspired men in each visible Church as a distinct society governed by Christ's laws. I do not think it requisite here to touch the controversies between Independents and Presbyterians, and much less those between either and Episcopalians, in order to exhibit the certainty of this fundamental fact as one which cannot be disputed. The divinely authorised use of the pastoral office, and of baptism and the Lord's Supper in visible societies gathered together by Divine warrant, are 20 Vindication of the Claim of Right. appointments of Apostolic order too manifest to require proof. It is equally clear that these societies could not be justified in departing from Apostolic injunctions by the adverse action of the heathen governments in their localities. They were called to confess Christ in face of heathen opposition, and one mode of doing so was to abide by Christ's ordinances at all hazards. In temporal things they were commanded to obey the heathen magis- trates, but in their ecclesiastical order they certainly had a distinct spiritual government. Now, the question is, can any good reason be assigned for supposing that this state of relative obligation was in the slightest degree changed either by the cessation of Apostolic inspiration, or by a civil government becoming professedly Christian ? In giving His commands for the formation of His Church or Churches, either with reference to bringing truly converted persons into spiritual fellow- ship, or with reference to the outward collecting of His professing people, Christ promised that He would support His servants in their obedience to Him, by His presence even to the end of the world. Whatever else this promise may involve, it assuredly implies that He had given commands regarding His Church or Churches which were of enduring obligation. Immediate inspir- ation may be withdrawn because superseded by the completion of an infallibly inspired Word, and the con- After the Apostolic Age. 21 version of nations and of civil rulers may oblige tliem to countenance aod uphold the Church or Churches of Christ. But how can either of these circumstances alter the obliofation resting^ on the Church or Churches to follow the commands of Christ set forth in that Word for the spiritual order of their arrangements ? Or how can either circumstance warrant the interference of the most Christian government so as to come between the distinct society of a Church and its conscientious regard to the appointments of its Lord ? There is not a syllable in Scripture to indicate that any future profession of Christianity by the ruling power of a State could change the character oT the distinct government appointed by the Lord Jesus in His Church. 1 am writing for Presbyterians, and therefore I do not think it necessary to prove that the divinely appointed government of the Church refers not only to the setting apart of pastors and the regulation of their duties (in- cludiDg the preaching of the Gospel and the administration of the sacraments), but to all arrangements for edification and order which can be carried out without assistance from secular power, and which would be attempted even at the risk of persecution from heathen rulers. Whether any particular species of arrangement or the exercise of any particular function belongs to the sphere of action thus regulated by Christ's authority, may be best judged of when we come to look in detail at the practical 22 Vindication of the Claim of Right. applications of what I have called the old foundations. But that these foundations have good scriptural warrant can hardly be doubted by those who think that the directions and promises of Jesus, the narrative in the Book of Acts, and the Apostolic precepts, furnish materials for the permanent guidance of the Church. These observations apply especially to the question of spiritual independence or co-ordinate jurisdiction, which, by the Free Church Formula is made an article of faith. But they also led a majority of the Church rulers in the years preceding the Disruption to the conclusion that no Church Court is warranted by Scripture in forcing a par- ticular person as a pastor upon an unwilling congregation. The majority felt that they could conscientiously act under a law of Patronage that did not go beyond a right of nomination, however much some of them might disap- prove of its existence. But they could not see their way to give effect to such nomination through the induction of a presentee in resistance to the conscientious mind of ci protesting people. The principle of Non-intrusion was thus contended for as vital and essential, though not made an article of faith. Those who held it could remain in a Church with a majority against them, pro- testing against what they counted maladministration. But, as a majority, they felt obliged to act ujjon it. ^ ^ Appendix, No. X. First Auchterarder Judgment. 23 CHAPTER II. USE MADE OF THE OLD FOUNDATIONS IN SUPPORT OF FREE CHURCH VIEWS. 1. Interpretation of the Old Foundations by Free Churchmen. The first judgment of the Court of Session adverse to the claims of the Church of Scotland was pronounced in the case of Auchterarder on the 8th of March, 1838. That judgment declared it to be illegal for a Presbytery to act on the principle of the Veto Law by rejecting a presentee to whom the majority of the male heads of families were opposed. But it did not directly in its terms assert for the Court a right of authoritative control over the eccle- siastical judicatories in the exercise of their functions, and was capable of being interpreted as leading only to the loss of civil possessions and emoluments. On this account the General Assembly did not assume, in the following May, that any interference had as yet occurred with their spiritual independence or their exclusive co- ordinate jurisdiction.^ But they indicated their fear of such interference as the result of principles avowed by the majority of the Court, and as a natural inference 1 Appendix, No. VIII. 24 Vindication of the Claim of Right. from the judgment. Accordingly, on the motion of the late Dr. Robert Buchanan, of Glasgow, the Assembly agreed to a solemn declaration, in which, while acknow- ledging the exclusive jurisdiction of the Civil Courts in regard to the civil rights and emoluments secured by law to the Church, they asserted the distinctness of ecclesias- tical government, in terms of the statement already quoted from the thirtieth chapter of the Westminster Confession. They asserted, also, the exclusiveness of ecclesiastical jurisdiction in all matters touching the doctrine, government, and discipline of the Church, as, in the terras of the Second Book of Discipline, flowing from God and the Mediator Jesus Christ, and being spiritual. They thus adopted and interpreted the old foundations derived from Scripture as clearly separating the obligation of submission to the civil power on ques- tions directly relating to civil rights and emoluments, from the idea of obligation to follow the requirements of that power in the exercise of their ecclesiastical functions. They announced their adherence to the old principle, that the rulers of Christ's Church are bound, in con- science, when endeavouring to carry out the ecclesiastical government which He has appointed in their hands, distinct from the civil magistrate, to listen to no other voice except His own, speaking to them in His Word, through the scriptural order of that government. It has been already shown that the same old principle Dr. Charles John Broivn. 25 was strikingly expressed by Gillespie and Baillie in their communication to the General Assembly in 1647, as leading to an absolute equality and co-ordination of authority in cases of collision, which could not be corrected or modified by the admission of any one super-eminent earthly rectifier. In harmony with this conclusion, we find, in December, 1838, Dr. Charles John Brown, with concurrence of the leading Non-intrusionists, declaring that " whensoever the question arises, What is spiritual and what is civil ? — what belongs to the sphere of the Church and what to the sphere of the State ? — the Church may not acknowledge any civil tribunal as the judge of that question — that this conclusion is clearly and undeniably involved in the principle of a co-ordinate and independent Church government ;" and " that it is to give up the whole question," and '' to resign the whole government of the Church into the hands of the State," to " acknowledge even the State itself as the arbiter of the question. What is spiritual?" We find him adding these pointed words : "Of course, the State, upon the other hand, is not bound to acknowledge the Church as arbiter. But there is an Arbiter above them both." ^ Such explanations of Free Church principle are very startling to most statesmen and lawj^ers. But they are the true interpretation of our old foundations, and spring 1 Eeport of meeting in Music Hall, Edinburgh, December, 1838 ; and Appendix, Nos. III., IV., and IX. 26 Vindication of the Clahn of Right. inevitably from the scriptural principle of an absolute obligation restincj on the Church to follow her own conscientious judgment of what is for the glory of her King and Head in the distinct government appointed by Himself They shut out, of course, the idea of the obli- gation being capable of modification by any question of compact or contract. The language of Dr. Chalmers in the General Assem- bly of 1839, immediately after the confirmation by the House of Lords of the Court of Session's judgment, involves the same view with that taken by Dr. Brown. In answer to the charge of priestly ambition, similar to that of the Popish clergy, he said : " What is the civil and Avhat is the ecclesiastical in the present question *? The temporalities of the living belong, beyond all ques- tion, to the civil category. Do we offer any resistance to the sentence which strips us of these ?" " We refrain from ought which touches their department ; and all we ask is, that they shall alike refrain from ought which touches upon ours. After the sentence they have given forth, we are not asking at their hand the temporalities of the benefice of Auchterarder ; but they are requiring at ours that we shall ordain for that benefice a man on whom, by the laws of the Church and in our views of what is best for the good of Christianity, we must refuse to confer that privilege." " Which of the two parties is it that makes an encroachment on the domain of the other ? '* Dr. K S. Candlish. 27 In some Remarks, in 1839, upon the Dean of Faculty's letter to the Lord Chancellor, the late Dr. Candlish speaks of a contract between the State and the Church. But it may be seen that he did not mean a contract in the legal sense, which may be enforced by a court, but simply an alliance from which either party may break off. He says that *' when any question arises as to the conditions of the alliance, it is a question between equals, in the adjustment of which the Church must be recognised as a party to a contract, fairly inter- preting its terms according to her best understanding of them, and entitled in a dispute to confer with the other party on a footing of independence and equality." ^ The above are sufficient specimens of interpretations in the earlier period of the conflict which preceded the Disruption. The intimations during the final period of that conflict are equally explicit. In the Commission of Assembly, on the 31st of January, 1843, Dr. Candlish said : " Whoever may put forth this monstrous claim to be sole judge of what is spiritual and civil tramples underfoot the rights, civil and spiritual, of all mankind." " If this claim be put forth by a Church, it follows that that Church is dragging under her superintendence all ecclesiastical persons, and assuming an authority in all causes." " If this amounts to a violation of civil liberty when the claim is put forth by a court of Christ, is it ^ Appendix, Nos. III. and IV. 28 Vindication of the Claim of Right. less a violation when put forth by a Court of Session ?" At a later period of the discussion, on the same day, Dr. Candlish stated his meaning to be that no mere Non- intrusion or Anti-patronage measure could now put the Church right, unless at the same time there was secured to the Church a jurisdiction to this extent, that the Church should be fully entitled to determine for herself, and for the guidance of her own conduct in spiritual matters, what falls under her spiritual jurisdiction ; leav- ing the Court of Session to determine for itself, and for its own guidance, what falls within its civil jurisdiction. On the 10th of March, 1843, Dr. Chalmers said that nothing would satisfy short of this, that adverse civil sentences shall have no other effect than the forfeiture of what the State gives, and that they shall not invest the Civil Courts with the power of delivering mandates to hinder and interdict the Church in the discharge of any ecclesiastical duty. Similar views were expressed by Dr. Gordon, Dr. Cunningham, and others. The eminent men now referred to distinguished clearly between an adoption and interpretation of the declara- tions in the sixteenth and seventeenth centuries on the subject of the relative positions assigned by the Word of God to civil and ecclesiastical powers, and an agreement with what was held in those times as to the principle of coercion by the civil power for the promotion of truth in religion. Maintaining to the full extent the principle The Main Question. 29 of religious liberty, they assuraed that the civil power was not entitled to advance the cause of the Gospel or the views of the Church, except by giving countenance and support according to its best judgment, and by upholding such an outward order as would facilitate the observance of divine laws and ordinances. They contended, therefore, that the only legitimate resource in the hand of the State for meeting unreasonable action by the Church was the withdrawal of the outward benefits and privileges bestowed by the State. Although the line of right action for the State is closely affected by their opinions, the main question involved in those opinions is the question as to the right and duty of the Church to resist authoritative control by the civil power in the exercise of the ecclesiastical func- tions which she believes to have been assigned to her by her Divine Head. The Free Church holds that there is no room for compromise in so sacred a matter. I have already anticipated any question as to the scriptural grounds upon which the Non-intrusion party proceeded with respect to the calling and settlement of ministers. 2. Application of the Old Foundations to Particular Cases before the Disruption. Every candid inquirer will acknowledge that, whether the conclusions brought out in the previous sections be 30 Vindication of the Claim of Eight. well founded or not, they cannot be matters of mere expediency for those who acquiesce in them. They involve doctrine, and affect conscientious belief. They imply an obligation to act upon them at all hazards, without regard to the authority of any power on earth. Forsretfulness of this fact lies at the root of much mis- understanding. A great part of hostile criticism regard- ing the Free Church position would be disarmed were the fundamental character of the obligation which we feel duly considered. It is in this light that, in all fairness, the action of the Church Courts after the first judgment of the Court of Session in the Auchterarder case ought to be contemplated. The first practical step in the conflict of jurisdictions took place in the case of Mr. Andrew Kessen's presenta- tion to the parishes of Kinloch and Lethendy. At the instance of Mr. Thomas Clarke, previously rejected as assis- tant and successor under the Veto Law, an interdict from the Court of Session, against the Presbytery of Dunkeld proceeding upon that presentation, reached their mode- rator on the 18th of August, 1837. Before this date, the Presbytery had not only sustained the presentation, but had moderated in a call to Mr. Kessen, and had sus- tained it. In these circumstances, they considered that their scriptural obligations recjuired them to look at no other question except the purely ecclesiastical one, whether Mr. Kessen was qualified to be ordained or not. Call to Mr. Kessen. 81 They believed that, whatever might be determined as to the civil rights or emoluments in connection with the benefice, the call of a person to be their pastor by the people, under Presbyterial guidance, was an imperative reason for his induction to the spiritual office, if he were found qualified. They thought that they were bound in conscience to maintain their spiritual independence by proceeding immediately with Mr. Kessen's trials. And they intimated to the Court of Session that they respect- fully declined the jurisdiction of their Lordships in a question entirely of an ecclesiastical nature. They assumed, in harmony with the old foundations of Free Church principle, that the whole legitimate procedure of a Presbytery, after the sustaining of a call, is in the exercise of functions which Christ has assigned to His Church, and which, by His authority, are free from secular control. They were thus claiming no civil rights, nor assuming any power to confer them, and were there- fore ready to disregard any question of civil right which might arise out of their line of action in what they looked upon as their exclusive sphere.^ They were persuaded, at the same time, that the exclusiveness of this sphere had been sanctioned by the constitution of the country. In the course of subsequent proceedings, and after the judgment of the Court of Session in the Auchterarder case, the Commission of Assembly found that admission 1 Appendix, No. VIII. 32 Vindication of the Claim of Right. to the pastoral charge of a parish and congregation is entirely an ecclesiastical act, subject to the jurisdiction of the ecclesiastical courts, and declared it to be the duty of the Presbytery of Dunkeld to carry out this finding by the performance of what the Commission had determined to be a purely spiritual act, and in regard to which the Civil Courts could possess no authority. In obedience to these instructions, the Presbytery, on the 21st of August, 1838, inducted Mr. Kessen to the pastoral charge, in face of an interdict from the Court of Session against their doing so. They held, on the one hand, that this line of action was required by their allegiance to Christ as Head and King of the Church, and by their ordination vows. They believed, on the other hand, in accordance with a principle of Scottish law, thought to have been laid down in the previous century, that no other adverse result could legitimately follow from their disregarding the supposed civil rights of Mr. Clarke, except the forfeiture by Mr. Kessen and the Church of the temporal advan- tages attached by the State to the office of parish minis- ter in Kinloch and Lethendy. The Presbytery and Mr. Kessen were willing to encounter that forfeiture for the sake of their ecclesiastical principles. Claiming neither civil right, nor the power of conferring it, they did not think that any question of such right was competently involved in their procedure. The ground taken by them is illustrated, while the Resolution of Assembly m 1839. 33 whole character of the Free Church position is brought out by the resolution of the General Assembly in May, 1839, with respect to the judgment of the House of Lords, affirming that of the Court of Session in the Auchterarder case. It was a twofold conviction that directed the action of that Assembly. Conscientious regard to views of scriptural obligation would not have sufficed. If these had stood alone, their only legitimate issue would have been an immediate abandonment of the Establishment by the Non-intrusion party. But that party were also convinced that the constitution of the country had furnished protection for their conceptions of scriptural principle, and had given to the General Assembly a thoroughly co-ordinate jurisdiction, with which no Civil Court, and not even the House of Lords could interfere. They were consequently persuaded that they were called upon to defend and exercise that co-ordinate jurisdiction, until it should be set aside in some more decisive manner than by a simple judg- ment of the very courts whose interference they be- lieved it was intended to prevent. I say nothing here as to the validity of the grounds on which this persuasion was based. They will afterwards be fully considered. But I wish to fix attention on the sense of twofold obligation which influenced the Non-intru- sion party. One aspect of their position obliged them to disregard the judgment of the Civil Courts. Another D 34 Vindication of the Claim of Right. aspect of it obliged them to remain in the Establish- ment. They did not disregard the judgment of the Civil Courts in all respects. On the contrary, the General Assembly of 1839, on the motion of Dr. Chalmers, instructed the Presbytery of Auchterarder to offer no further resistance to the claims of Mr. Young (the pre- sentee) or of the patron, to the emoluments of the benefice of Auchterarder, and to refrain from claiming the jus de- volutuon (that is, the right of presentation belonging by law to the Presbytery, when six months have elapsed from the vacancy without a valid presentation), or any other right or privilege connected with the said benefice. But they resolved at the same time that the principle of Non-intru- sion — the principle of the Veto Law — could not be aban- doned, and that neither in the case of Auchterarder nor in any other case would they allow a presentee to be settled as pastor in a parish contrary to the will of the congrega- tion. The concluding part of the resolution assumes that, in consequence of the judgment in the Auchterarder case, the legal provision for the sustentation of the ministry would be suspended in every instance in which it was found requisite to carry the principle of Non-intrusion into practical effect, and treats the importance of appointing a committee, and the desirableness of conferring with Government as arising entirely from that circumstance.^ ^ Appendix, No. II. Submission as to Civil Bights. So The hostile criticisms upou this resolution imply a repudiation, both of the old foundations in scriptural principle, and of the conceptions regarding the constitu- tion of the country, out of which it sprung. Its first paragraph indicating submission to the Civil Court with respect to civil rights and emoluments, and instructing the Presbytery of Auchterarder to that effect, has been represented as a mere pretext, and as incon- sistent with its second paragraph in which the determin- ation to adhere to the principle of the Veto Law is announced. But no one will see pretext or inconsistency in it, who reads it in the light of the view taken by its authors of scriptural principle and constitutional arrange- ment. They did not propose to take credit by it for any special generosity, or for a spirit of concession. They simply, by means of it, drew the line between what they believed to belong to the jurisdiction of the Civil Court and what they claimed as belonging entirely to their own scriptural and constitutional jurisdiction. They knew that whatever course the}' might take, the force of law would oblige them to yield to its commands on the sub- jects of the benefice and the jus devolutuvi. Still, when they felt themselves compelled by conscience to come into collision with the meaning of a civil judgment, in so far as their ecclesiastical action Avas concerned, it was fitting that they should expressly disclaim the intention of further disputing the validity of it in its application to 36 Vindication of the Claim of Right. temporal matters, or of exhibiting a rebellious spirit against it in that respect. It has been insinuated that, as trustees of the Widows' Fund, persons representing the Church intended to dis- pute the right of the patron or presentee to the stipend of Aucbterarder, so that the disclaimer in the resolution was not genuine. Those trustees were a limited body, constituted and bound by an Act of Parliament. They could not avoid acting according to such legal advice as might be given to them. But the Assembly saw nothing to prevent the Civil Court from finding that, when the vacancy in the parish was continued through illegal pro- ceedings, the Act in favour of the Widows' Fund did not apply. The disclaimer in 1839 indicated that such a finding would be submissively acquiesced in. It is said, however, that to persist in maintaining the principle of the Veto Law, was to persist in an attempt to defeat the civil rights of the patron and the presentee. The Legislature had certainly connected the full effect of these civil rights with the exercise of ecclesiastical functions by the Church. But if the view taken by the Church of these functions, as flowing directly from the appointment of Christ, in accordance with the old founda- tions, be correct, then the Church, in the exercise of them, had nothing to do with the question of what civil rights or advantages might or might not follow ; but had simply to consider what was for the honour of Christ and Object of Approach to Goveniinent. 87 the edification of His people. In that exercise they felt they must listen only to the voice of Christ, their Head and King, and not to the voice of any Civil Court. They were persuaded, also, that their liberty to act on this principle was protected by the conscitution of the country. Such was their rule of action in the case of Lethendy. Such, also, was their rule of action in the Assembly of 1839 with reference to the case of Auchterarder.^ They took steps for conferring with Government as to a remedy for the collision of jurisdictions, which they held to have occurred. They did not at this stage propose to approach Government or Parliament on the subject of '' Spiritual Independence." They did not think that the judgment in the Auchterarder case could legitimately deprive them of their exclusive jurisdiction in ecclesiastical matters ; but they knew that in every case to which it applied, it would deprive their ministers and congregations of the civil advantages bestowed by an establishment. They saw that the continuance of such a state of things would soon render the position of an Established Church of no value to them, and conse- quently lead practically to a disruption, and therefore they set themselves to see whether some practical measure in favour of Non-intrusion might not be obtained. It appeared to them that by a speedy interposition of the Legislature in that direction, further collision with the ^ Appendix, No. IV. 38 Vindication of the Claim of Right. Civil Court might be prevented, and that an adjustment might be arrived at without compromise of the spiritual independence which they claimed and could not surrender.^ It is unnecessary for me to go into particulars of the action of the Commission of Assembly in carrying out the resolution of 1889 with respect to the case of Marnoch, in the Presbytery of Strathbogie. That action stands on the same footing with the resolution itself. It resisted the intrusion of Mr. Edwards into the pastorate of Marnoch at the bidding of the Court of Session. It vindicated the doctrine of an absolute spiritual independ- ence in the exercise of ecclesiastical functions, without regard to any civil question that might consequently arise. But it involved a careful abstinence from any attempt to dispute or interfere with the judgment of the Civil Court regarding such civil questions. The Assembly and its Commission persevered, at every hazard, in giving effect to the same principle, and in drawing the same distinction with respect to all other cases which arose. In that of Culsalmond, they refused to recognise the intrusion of a presentee, and appointed another person to officiate for the congregation in face of an interdict from the Court of Session. While asserting their spiritual independence, they thereby supported the spiritual liberties of congregations who stood by them amid difficulties and persecutions to the last, and who associated ^ Appendix, No. II. Power to Create quoad sacra Charges. 39 themselves aferwards with the Free Church of Scotland. The presentees gained nothing, except the manses and stipends ; the people chose other pastors for themselves.^ The Church regarded the assis^nment of districts for spiritual work to particular pastors, the constitution of kirk-sessions, and the admission of pastors and elders to seats in Presbyteries, as matters clearly associated with the functions of ecclesiastical government assigned to her by Christ. It appeared to her that neither in the Apos- tolic age nor in these modern times could the Church fulfil her appointed part in pursuing her Master's will without dealing freely with such matters. Therefore, she believed that the power of constituting new parishes and kirk-sessions quoad sacra, and appointing pastors and elders therein, Avith all usual privileges and duties, formed an essential portion of her ecclesiastical jurisdic- tion. She did not believe that the exercise of this power could interfere with civil rights, either directly or indirectly. But, on the ground of the fundamental prin- ciples already stated, she held that her allegiance to Christ prevented ber from being diverted from the course she judged most expedient in disposing of questions on the subjects referred to, by any consideration of how civil rights, real or imaginary, might be thereby affected. She considered that, if the State desired to effect civil 1 Appendix, No. VIII. 40 Vindication of the Claim of Right. purposes in connection with parishes or their divisions, or if the Civil Court thought it needful to take steps for securing the accomplishment of such purposes, some different course must be taken from that of coercing or prohibiting the movements of ecclesiastical courts in their endeavours to extend the pastoral and presbyterial influ- ence of the Church in the manner which they thought best for their Master's cause. Therefore, the Assembly and its Commission resisted interdicts from the Court of Session prohibiting the ministers and elders of quoad sacra charges from sitting in the Church Courts. In particular, in the Stewarton case, they resisted an inter- dict against the institution of a quoad sacra charge and the assignment of a district and kirk-session to a pastor, with seats in the Presbytery for himself and a ruling elder. They also, in the Cambusnethan case, proceeded to depose a minister found guilty of theft, although the Court of Session had interdicted them from doing so, on the ground that ministers of quoad sacra parishes had sat and voted in the Presbytery. They did the same in the case of a minister found guilty of drunkenness. No impartial person can fail to see that, on the sup- position of their principles of action, conscientiously based on Scripture, being well founded, they could not have done otherwise ; and that, while they believed their co-ordinate jurisdiction to be sanctioned by the national constitution, Assertion of Ecclesiastical Authority. 41 they were not called upon to abandon the Establishment. Nor can any other judgment be fairly pronounced upon what have been considered as their harshest and most extravagant proceedings. I refer to those adopted with respect to probationers and ministers who resisted their authority, and especially to those in the case of seven ministers, members of the Presbytery of Strathbogie. The resolution of the General Assembly of 1838, asserting the scriptural principle of spiritual independ- ence, and intimating a solemn determination to defend it at all hazards, was concluded by a declaration that the Assembly would " firmly enforce obedience upon all office-bearers and members of the Church, by the execu- tion of her laws, in the exercise of the ecclesiastical authority wherewith they are invested." Careful con- sideration will show that the course thus given notice of was essential to the integrity of the ground taken up in the resolution. No jurisdiction can be upheld which is not enforced where enforcement is necessary. But did the Church before the Disruption proceed in a precipi- tate manner, to deal with the resistance given to her authority by probationers and ministers under cover of weapons obtained from the armoury of the Civil Courts ? Far from it. The Commission of Assembly indeed, when instructing the Presbytery of Dunkeld to proceed with Mr. Kesson's ordination to the pastoral charge of Kinloch and Lethendy, did at the same time direct that, 42 Vindication of the Claim of Right. unless Mr. Clarke should withdraw his civil process, the Presbytery should serve him with a libel. It was con- sistently held that for a probationer to endeavour, by civil process, to prevent a Presbytery from exercising its ecclesiastical functions, was a grave ecclesiastical offence, and called for the exercise of discipline. But full oppor- tunity was given to Mr. Clarke to depart from his unscriptural and unpresbyterian line of conduct. Though he continued to pursue that line, and in an aggravated form, for more than three years after August, 1838, he was not deprived of his license till May, 1842. In every case much forbearance was shown. But the Church did not fail in the end to vindicate her disci- pline, when either a minister or a probationer had sought for the interference of the Civil Court in order to arrest or enjoin ecclesiastical procedure. The chief instance of such vindication was that in which, after long-protracted and patient dealing, seven ministers, members of the Presbytery of Strathbogie, were deposed from the ministry. It is easy to represent to the present generation this deposition as if it were a rash and intolerant piece of ecclesiastical tyranny in a time of excitement. But let the records of the transactions relat- ing to it be candidly examined, and it will be seen that it was a judgment painfully forced upon the Church after great forbearance upon her part. I say, forced upon the Church, because the course taken by these seven Deposition of Strathhogie Ministers. 43 men, under the pressure of legal advice, was fitted to put to the test the question whether the Church were really in earnest about the high scriptural ground which she took upon the question of spiritual independence. If that high ground were indeed good, then the action of these men left her no alternative. They w^ere not deposed for obeying the Civil Court. The charge against them was, that they had of their own accord exercised their ministry in face of their suspension by the Assembly, and that they had, also of their own accord, petitioned the Court of Session to reverse the sentence of suspension, to interdict and coerce the action of the ecclesiastical courts, and to do so even throughout a whole district of country, with respect to the preaching of the Gospel on the part of ministers sent by the Church authorities. If this kind of insubordination were to be submitted to, it would have been vain for the Church to speak about her independent jurisdiction. And, therefore, to use the language of Dr. Cunningham, in accordance with what I have shown to be the foun- dations of Free Church principle, they were deposed, because they had broken the laws of the Church, because they had broken their ordination vows, and because they had sinned against the Lord Jesus Christ. In moving the sentence of deposition. Dr. Chalmers said: — " The Church of Scotland can never give way, and will sooner give up her existence as a National Estab- 44 Vindication of the Claim of Bight. lishment than give up her powers as a self-acting and self- regulating body, to do what, in her judgment, is best for the honour of the Redeemer and the interest of His kingdom upon earth. We see no other alternative. As these men do not humble themselves, their deposition is inevitable. The Church of Scotland cannot tolerate, and, what is more, it could not survive the scandal of quietly putting up with a delinquency so enormous as that into Avhich those brethren have fallen." This was not the hasty conclusion of people stimulated by a sudden emergency, but the deliberate judgment of those who had been anxiously pondering and watching the case for a year and a-half. The principle at the foundation of this judgment is an essential principle of the Free Church, from which she cannot consistently depart.^ 3. Applications of the Old Foundations to Particular Matters after the Disruption. The first application of the old foundations after the Pisruption occurred in the year 1845. Mr. Waddel, minister of the Free Church at Burrelton, was accused of drunkenness. Letters in his name were written to witnesses in the case, threatening them with prosecution in the Civil Court if they gave their evidence to the Presbytery. He was consequently summoned to the bar of the General Assembly in May of that year. He 1 Appendix, No. VIII. Case of Mr. Waddel of Burrelton. 4 o appeared, and expressed his deep regret that he had authorised the letters to be written so as to arrest the investigation of the case. He said, also, that he was ready to express, in the strongest terms, the opinion that the Civil Court had no right to interfere with ecclesias- tical jurisdiction. But the Assembly, regarding the offence as in substance the same with that of the seven ministers of Strath bogie, suspended him from his func- tions for six months, and instructed the Presbytery to proceed with their investigation of the charge of intem- perance. The Assembly did not consider his statement on the fundamental question of spiritual independence as explicit enough, and they felt it needful to mark their sense of the serious guilt attaching to his conduct. At the meeting of Assembly at Inverness in the ensuing- month of August, it was found that he had agreed to resume his labours in face of the suspension, and that he and his elders and deacons had renounced connection with the Free Church. It was also intimated that his agent had again sent letters to the parties cited as wit- nesses, threatening them with prosecution. The Assembly cited Mr. Waddel to the Commission in November, to answer for his offence, now greatly aggravated by his departure from previous assurances. He did not appear before the Commission, who pronounced upon him, in his absence, the sentence of deposition. The second instance of action by the Free Church in 46 Vindication of the Claim of Right. the same line was the adoption, in 1846, of an amended series of questions, to be put to persons before ordination and admission as ministers, elders, or deacons, or before receiving license to preach the Gospel, with a correspond- ing formula to be subscribed. These questions and the formula had been proposed in 1844, but were not finally adjusted till 1846. The formula refers to the questions as having been previously answered. The fourth ques- tion is as follows : — " Do you believe that the Lord Jesus Christ, as King and Head of the Church, has therein appointed a government in the hands of Church-officers distinct from and not subordinate in its own province to civil government, and that the civil magistrate does not possess jurisdiction or authoritative control over the regulation of the affairs of Christ's Church ? and do you approve of the general principles embodied in the Claim, Declaration, and Pro- test adopted by the General Assembly of the Church of Scotland in 1842, and in the Protest of ministers and elders, commissioners from Presbyteries to the General Assembly, read in presence of the Royal Commissioner on 18th May, 1843, as declaring the views, which are sanctioned by the Word of God and the standards of this Church, with respect to the spirituality and freedom of the Church of Christ, and her subjection to Him as her only Head, and to His Word as her only standard ?" ^ ^ Appendix, No. II. Revised Free Church Formula. 47 An affirmative answer to tbis question carries, and was intended to carry with it a declaration of concurrence in the views of Andrew Melville and the Second Book of Discipline, and in the interpretation which the Church in the Disruption struggle had put upon the statement in the first paragraph of the thirtieth chapter of the Con- fession of Faith. The general principles embodied in the Claim of Right and in the Protest of 1843, as to the spirituality and freedom of Christ's Church, and her sub- jection to Christ and His Word, are unmistakably those exhibited in what I have called the old foundations. They are the principles w^hich ruled the action of the Church in the cases of Auchterarder, Lethendy, Mar- noch, Culsalmond, and Stewarton. They necessitated and accomplished the deposition of the seven Strathbogie ministers. They also led to the deposition of Mr. Waddel. All office-bearers and probationers of the Free Church are now brought under a sacred obligation to adhere to them by the answer to this question, and by subscription of the corresponding formula.^ Ever since May 1843, the Free Church of Scotland has steadfastly adhered to these principles, and has never been diverted from acting in accordance with them in all the parts of her diversified administration and legislation. ^ I may add that both in the questions and in the formula the word Ei'astian was substituted for the word Bourignion, as describing a well- known class of errors in place of an obscure and forgotten one. 48 Vindication of the Claim of Right. She has felt that the chief human bulwark of her spiritual independence lay in her own faithfulness, and not in the countenance or protection of the civil power. But she has never ceased to assert the duty of the civil power not only to recognise and countenance the Church of Christ, but to protect her spiritual independence. The third specific occasion for the manifestation of her adherence to her Disruption ground arose through the resistance given to her ecclesiastical authority by Mr. Macmillan, minister at Cardross. The Free General Assembly of 1858 found him guilty of intemperance, and suspended him from the functions of the ministry, separating him at the same time from his pastoral charge at Cardross. In place of submitting, he applied to the Court of Session for an interdict against the execution or intimation of the sentence. The application was refused by the Lord Ordinary (Lord Kinloch). The attention of the Assembly having been called to the terms of it, Mr. Macmillan was summoned to the bar of the Assembly to explain the connection of his name with it. When he appeared, he was asked whether or not it had been made at his instance and by his authority — yea or nay ? The answer was, " Yea." The Assembly refused to hear any further statement from Mr. Macmillan, but immediately pronounced upon him the sentence of deposition. This, as well as every other sentence of deposition by the Assembly, whether before or after the Disruption, Ecclesiastical Action in Car dross Case. 49 was preceded by special prayer, and was solemnly declared to be " in the name of the Lord Jesus Christ, the sole Head and King of this Church, and by virtue of the power and authority committed by Him to it." I think it of material consequence to notice here that the eccle- siastical effect of the Assembly's action was not in the slightest degree arrested by subsequent contentions in the Court of Session, or by any finding of that Court. The Free Presbytery of Dumbarton fulfilled the instruc- tions given to them, and the pastoral charge of Cardross was filled up in due course of ecclesiastical law. The Church never swerved in the slightest degree from her independent line of obedience to what she believed to be the mind of her Lord and Master. However much harassed by the extent to which Mr. Macmillan was advised to carry his rebellion against her discipline, and by what she counted the fallacious conclusions of the civil judges, she did not permit either the one or the other to hinder or modify her exercise of her exclusive jurisdiction in the ecclesiastical affairs of her congregation at Cardross. She kept by her own principle and her old foundations at all hazards ; and if the case in the Court of Session had terminated in an endeavour to coerce her either by the force of damages or in any other way, she would not have yielded, but would have treated the endeavour as persecution, to be met not by concession, but by patient endurance for her Master's sake. The 50 Vindication of the Claim of Right. depositioD of Mr. Macmillan took full effect, and never was or could be overthrown. ^ It became needful, however, for the Free Church of Scotland to maintain her spiritual independence on the old foundations, not only in the direct exercise of it, but in argument and pleas for its protection before the Court of Session. Actions at law, raised by Mr. Macmillan, demanded both a laro^e sum of damaofes from individual members of the Free Church Assembly, and also a re- duction of its sentences of suspension and deposition, and a smaller sum of damages from it, by way of solatium, for the alleged injury already done. The first practical petition in carrying out these actions was for an order requiring those representing the Assembly to produce certain documents needful in the case. The Court were thus asked to appoint the Free Church to bring her spiritual sentences under its judgment. Now, if the actions had simply been to enable Mr. Macmillan to retain his manse, and to obtain his dividend from the Sustentation Fund, the Church would have raised no objection to allowing her sentences to be judged of, in relation to these purposes. For she had nothing to con- ceal, and such an action, however unjust or untenable, would not have been an attack upon the distinct ecclesias- tical government assigned to her by her Lord. She would have had good pleas against it, if a right opportunity had occurred for urging them. But such opportunity did not ^ Appendix, No. II. Pleas in Cardross Case. 51 occur, because the demand for reducing the sentences, and for damages on account of the sentences, without allegation of malice, raised a far more important ques- tion. She never objected, or can object, to the Civil Court looking into all her acts, and all the grounds of them, with a view to determining rights of property, and adjusting pecuniary interests.^ But the reducing of her sentences seemed, in her view, unnecessary for any civil purpose, and to involve the idea of a right to coerce her into a departure from them ; and she thought that this idea was confirmed by a demand for damages, simply on account of them. Therefore, she objected to an order upon her for bringing her sentences before the Court, because she objected to the first step in actions for reducing her sentences and for corresponding damages. She objected to any progress being allowed in what she represented as an incompetent proceeding. The Lord Ordinary (Lord Benholme) decided in her favour on this point, and thereby dismissed the actions. The judges of the First Division of the Court reversed Lord Benholme's decision, on the ground that, whatever might be the value of the pleas for the Church, it was needful, in order to estimate them, that the Court should examine the sentences. They intimated at the same time that these pleas were entirely reserved for subsequent consideration. Though contending that the very nature of a demand for reduction of ecclesiastical ^ Appendix, Xo. II. 52 Vindication of the Claim of Bight. sentences ought to have superseded such a course, the Church saw no surrender of her claims, in submission to a judgment which left her pleas untouched. She there- fore acquiesced on this footing.^ The Court afterwards repelled the defence of the Church, in so far as it rested on the ground of the sentences being spiritual in the course of discipline, and not relating to civil rights ; reserving the specific pleas, the force of which depended upon inquiry into the par- ticular Constitution of the Free Church, and the engage- ments of its members and ministers. The Free Church resisted the application of this view at each step in the process which the legal forms allowed, and which gave opportunity for the arguments of her counsel, and did her best in her own courts and at public meetings to exhibit to her people the encroachment upon the liberty given by Chri^.t to His Church that was involved in the assumption of power to reduce ecclesiastical sentences. She did not think for a moment of submitting to the encroachment. But she resolved to defer asking leave to appeal to the House of Lords, until the case should have reached a more advanced stage. ^ It is true that all the judges intimated that they did not entertain the concep- tion of compelling the Church to reinstate Mr. Mac- millan in his ministerial functions, and that they looked upon the reduction they contemplated simply as a means of putting the sentences out of the way, so as to leave ^ Appendix, No. II. Final Issue of Cardross Case. 53 room for his retention of civil rights or his recovery of damages. But the Church had previous experience in the Auchterarder case, to impress her with the persuasion that such reservations in the speeches of judges might not prevent the reducing of the sentences from being afterwards made use of to support processes of coercion. We held besides, that damages not for the malicious conduct of individuals, but for the judicial procedure of an ecclesiastical court in the bond-fide and conscientious discharge of its functions would be equivalent to a coercive interference, which our fundamental principles must oblige us to resist and protest against by every available means. We would readily have gone before a jury to defend all our acts, if the only thing avowedly aimed at had been the retention, by Mr. Macmillan, of some civil possession. But no judgment, even of the House of Lords, would have induced us to follow him to a jury when his aim was the reduction of our spiritual sentences, so as to be reponed in his ministr3\ The Court, however, after more careful and exact con- sideration of the circumstances before them, came of their own accord to a conclusion, by a majority, which saved us from such questions, and which also saved themselves from appeals to the House of Lords against their former judgments. They found that an action of damages could not lie against a body like the General Assembly collec- tively ; that no civil right could be established against it; 5-i Vindication of the Claim of Rigid. and that, consequently, the reduction of the sentences being competent only as leading to damages or the maintenance of civil rights, was not competent where these matters were excluded. They, at the same time, indicated that an action of damages against individual members of Assembly might not be competent without an allegation of malice. Lord Deas dissented from these conclusions. But, by the decision of the Court, the actions were dismissed, and it thus became unreasonable, and to no purpose, for the Church to appeal against the former judgments. The House of Lords could not be expected to entertain an appeal which had no practical bearing. Her sentences remained unaffected by what had occurred, and she was left free to pursue her own way without let or hindrance. Writers opposed to the Free Church cause have contrived to hide from them- selves and others this peculiar and instructive termina- tion of the Cardross case. But a clear understanding of it proves that, so far from having to surrender her ground, she was enabled to maintain it all the more firmly through the instrumentality of the ultimate issue.^ It is true that, in the imagination of those writers, another action has been most unreasonably mixed up with the dismissed ones, so as to confuse people's minds about the result. Guided by the hint given from the Bench, Mr. Macmillan was advised to raise a new process, in which lie demanded damages against particular members of what he 1 Appendix, No. II. Collapse of New Gar dross Action. ^o called the Free Church Association, with an allegation of malice. Itwas perfectly consistent both with the old founda- tions and with the recent assertion of Free Church principle for the persons, against whom the new process with an allegation of malice was directed, to meet it by an adjust- ment of issues to be judged of by a jury. It was not likely that a jury w^ould have given a verdict in favour of Mr. Macmillan. At an early stage of the process, how^- ever, he withdrew from the prosecution of it. It is said that he did so from want of funds. There certainly was no motive to induce the opponents of Free Church prin- ciples to help him at this stage, when they found that the Free Church no longer considered those principles to be involved in his efforts. But, whatever was the cause of the collapse in his final movement, the Free Church of Scotland came out of the protracted disturbance occasioned by his conduct without having conceded an inch of her ground, and having practically gained a vic- tory. I shall speak in a subsequent chapter of the legal position in which the disturbance left her.-^ Between the termination of the Cardross case and the change in the law of Patronage effected in 1874 no special occasion arose for ecclesiastical action in main- taining spiritual independence, except in so far as the negotiations for Union with the United Presbyterian Church led to some expositions of it.^ The expositions ^ Appendix, No. II. 56 Vindication of the Claim of Right. were due to two circumstances occurring in the course of those negotiations. One of these was what appeared to be a fallacious and dangerous view, indicated by indivi- dual opponents of the Union — a view which tended to identify spiritual independence with the protection for it that we claimed from the State. Such a view was thought to nullify the truth, that it is a gift bestowed by Christ upon His Church, which she is called upon to hold fast and exercise, whether she be established or disestab- lished. The attempt to vindicate this truth was in entire harmony with our previous contentions and with the old foundations. Temporary excitement led some persons to imaofine that it was made in the interests of the Union. It was really the result of a wholesome jealousy lest a funda- mental principle should be overshadowed or undermined, and would have been made in opposition to the view re- ferred to, if no proposal for Union had ever been heard of.^ The other circumstance that brought the subject into prominent notice was the appearance of a threat with reference to Free Church property, as if the fear of losing any of it should deter us from prosecuting the union. The subject of property, or the retention or loss of it, had been spoken of by the Union Committee only in the light of a secondary question, which, in the event of a favourable issue to the consideration of the primary one that bore on spiritual relations, would call for reasonable attention. It was in this light that the same subject ^ Appcn'lix, No. II. Question of Property Irrelevant. 5 7 was looked at, and by consent of all parties, previously to the recent union with the Reformed Presbyterians. No person maintained that, if a union were formed in resistance to the protest of a minority, there would be the smallest interference with spiritual independence, in applications to the Civil Court by that minority for the possession of property. But the opinion was indignantly expressed that, to bring the risk to property to tell upon the decision of the question of Union, in its relation to our ecclesiastical discussions, was inconsistent with the principle of spiritual independence, and seriously affected its integrity. For any argument of that kind seemed to partake of the same unscriptural aspect, wdiich marked the conduct of the Strathbogie ministers and of Mr. Mac- millan. But it never has been contended by any party in the Free Assembly that the principle of spiritual independence would justify a majority in making such changes as would destroy the identity of the Church. We cannot admit, indeed, that any conception of con- tract, or even brotherly covenant, should prevent us from following the course which we think conformable to the mind of Christ. But we may fairly admit that, if that course went so far as, in our own view, to involve a clear departure from old foundations against the protest of a minority, we could not feel warranted in continuing to assume the name and position of the original Church.^ On the other hand, there is no ground for the impu- ^ Appendix, No. II. 58 Vindication of the Claim of Right. tation that we receded in the slightest measure from the strictest maintenance of our ground, when, in 1873, we agreed to suspend the negotiations for Union with the United Presbyterian Church. It is true that we held the prosecution of that Union to be matter of scriptural obligation, and that we thought the Church failed to fulfil such obligation when she failed to carry out what was aimed at. But the very nature of Church Union as an object is sufficient to show the harmony between our sense of duty and our procedure in 1873. Scriptural declarations are as much against the breaking up of Union, as they are in favour of forming a Union. We saw that the division of opinion in 1873 was too great in our Church, to warrant our breaking up an existing Union for the sake of forming a new one. We had all along declared that we did not think the question one to be settled by a mere majority. We simply gave effect to that declaration in 1873. The main responsibility thus rested on the minority. The subject of the risk to property never would have prevented the Union, if our footing had been otherwise clear. If we had allowed such risk to regulate our conduct, I admit that our course would have involved an abandonment of our fundamental principle. But we were moved by the aspect of the case in its spiritual relations, and not by temporal interests. We adhered to our Disruption foundations in their full significancy.^ * Appendix, No. II. Contract spoJcen of ambiguously. 5 9 CHAPTER III. EELATION OF THE OLD FOUNDATIONS TO THE OEDER AND HARMONY OF NATIONAL LAW AND JUSTICE. 1. Their Kelation to the connection with Contract or Compact of the Civil Advantages enjoyed by a Church. The language of those opposed to Free Church principles is often ambiguous, when they speak of Dissenting Churches being bound by contract, and of their liability to be compelled by a Civil Court to the observance of contract. For example, it is said that such Churches are independent of any Civil Court when they keep wdthin their contracts, but that in case of transgressing their contracts, the Civil Courts may interpose and do justice between parties, if there be any civil right involved — that they will and must interpose, even though the act complained of be spiritual, and must judge of it even though it be an act peculiar to a Church Court, when it may draw after it any civil wrong, — and that when a man has been proceeded against in opposition to Avhat the Court judge to be terms of contract, it must be in vain to plead that the procedure was spiritual ; but the Court 60 Vindication of the Claim of Right. must protect him and give him relief. The ambiguity in this language lies in the question whether it means simpl}^, that the Court will give relief by deciding matters of property or endowment in the complaining party's favour, or that it will also coerce the Church with reference to its exercise of ecclesiastical functions. For the same language was used by the judges in the Cardross case. Yet, they disclaimed the intention of coercing the Free Church, with reference to the position of Mr. Macmillan as a minister in its fellowship, or as a member of its Presbytery, and they ultimately gave effect to the disclaimer by dismissing his actions, because they would not entertain a proposal for reducing the eccle- siastical sentences when it had no relevant relation to a definite civil interest. They also intimated that a relevant action of damages against members of Assembly should have in it an allegation of malice. Now, it is quite consistent with the foundations of Free Church principle to admit that every definite civil interest, such as the possession of a manse or a right to temporal emoluments, must be judged of with reference to contract, in so far as a case of contract may be fairly made out by title-deeds or other circumstances involving asfreement, and that a Civil Court alone can decide the case, and is entitled to look at the whole ecclesiastical procedure in order to decide. We readily admit also, that the Civil Court may, without encroachment on the Relief for an oppressed Man. 61 ecclesiastical province, take means for bringing out all the particulars of ecclesiastical procedure, in a case where damages are asked with an allegation of malice. In either of these wa3^s, protection or relief may be given without affecting the ground we take with respect to spiritual independence. We do not therefore maintain, as some have alleged we do, that a man oppressed under an ecclesiastical sentence, is to have no relief. A judgment of Lord Romilly has been quoted, in which he speaks of enforc- ing the rules of a voluntary society. But it seems doubtful whether he had in his mind the distinction between conformity to these rules by parties who retain possession of a building, or cling to some other civil right, and conformity to them when every temporal possession or civil right affecting the matter has been given U23. English lawj^ers seem often to neglect this dis- tinction. Lord Romilly would probably not have differed from Lord Cranworth in declaring, that his court would not interfere with the rules of a voluntary society, except when some tangible question of civil property or right was brought before him. At any rate, let it be clearly under- stood, that Free Church principle allows every such tangi- ble question to be settled exclusively by a Civil Court. ^ The word compact seems to be used in reference to ^ Appendix, No. IV. 02 Vindication of the Claim of Right. the Established Church and its relation to the State, by some of her defenders in the present day. They seem to have forgotten how entirely the idea of any such compact was repudiated by the leading lawyers and by the Court of Session at the time of the Disruption. The junior counsel for the patron and presentee in the Auchterarder case suggested that idea. But the senior counsel rejected it entirely, and, along with the majority of the Court, represented the Church as simply a creation of the State, having no previous existence or rights. The senior counsel for the Church disclaimed the argument of a supposed compact, and even Lord Moncreiff declared that the relation was constituted neither by a creation nor a compact, but by a solemn recognition. Whether the relation be counted a creation, a compact, or a solemn recognition, the foundations of Free Church principle are quite consistent with entire submission to the absolute disposal by the Civil Court of all property or civil rights associated with an Established Church, according to that Court's own view of what the Acts of Parliament imply.^ 2. Kelation of the Old Foundations to the Freedom from alleged contracts or compacts which is involved IN THE Spiritual Obligations of Churches. The language referred to in the previous section is ambiguous. For it has been interpreted by many who ^ Appendix, No. II. True source of Church connection. 63 use it as implying a right in the Civil Court to coerce the Church in the exercise of ecclesiastical functions, provided the judges think that in that exercise she is breaking a contract. When it is asserted that a Dissenting Church exists and has power, only by contract, the foundations of Free Church principle are assaulted. These foundations imply that such a Church is formed, not by mutual contract, but by a conscientious persua- sion, bringing the members together in a scriptural manner, through reverence for the authority of Christ. Their continuance in a Church with a special formula and confession is a continued profession of conscientious attachment to that formula and confession. Bat true Free Churchmen feel that their engagements are, strictly speaking, to Christ, and not to one another in the way of ordinary contract. In taking their part in the distinct government appointed by Him in His Church, they do not think themselves at liberty to follow any other rule than that of doing what, to the best of their judgment, appears most for His glory and the good of His people. Thus the old foundations must always prevent the Free Church from allowing the exercise of her ecclesiastical functions to be controlled or restrained by any judgment of a Civil Court about terms of contract. They must always oblige her to assert that she has both the duty and the right to perform any and every spiritual act "which she judges desirable for the cause of Christ, w^hether she 64< Vindication of the Claim of Right. can or cannot prove to a Civil Court that such act is specified or allowed in the particulars of her constitution. An attempt has been made, as I have mentioned before, to override that conscientious view by the language of Gillespie, Rutherford, and Henderson, about the duty of the civil magistrate to " compel Kirkmen to perform the duty which God requires of them, to take care that they do those things which ex officio they are bound to do, and to command the ministers to observe the rule commanded in the Word;" and this rule has been assumed to mean the same thing as one required by a Civil Court's interpretation of the laws and constitution of a Church. Assuredly those careful and devout reasoners never anticipated such a perversion of their language. Perhaps this perversion may be thought to have support in the words of Gillespie, when he speaks not only of duties required by the clear Word of God, but also of those required by the received principles of Christian religion, and by the received ecclesiastical constitution of the Church. But the question here arises, what Gillespie meant by the word received. Received by whom ? Or, acknowledged by whom as received? It is evident, from what I have before quoted from the Hundred and Eleven Propositions, that he assigned to the supreme ecclesias- tical authority a thoroughly equal voice with the State in determining what the duties referred to were.^ Let it 1 Appendix, No. III. Misinterpretation of Gillespie. 65 not be forgotten that the main question must always be., not what is the civil power entitled to do in emergencies ? but what is the obligation under which the Church lies to Christ as her Head and King ? There is not a sentence in the writings referred to which exempts her from pur- suing, in accordance with her own judgment as to His own voice in His Word, the line that seems best for His glory, in opposition to every demand of earthly power. Much less is there anything in those writings to justify her in surrendering her own conscientious view in obedience to orders which do not profess to be based on statements of the Divine Word, but merely on the opinion of secular judges regarding the terms of a con- tract. The sentiments that may be gathered from the words of those who framed the Second Book of Discipline, and of those who carried out the second Reformation, lead to two conclusions. They lead, first, to the con- clusion that a collision might arise between two equal powers. In this conclusion Free Churchmen acquiesce. But they also, in the second place, lead to the conclusion that one of the pow^ers might possibly have to do what we should now call persecuting the other, while the other might have to do what we should now call enduring persecution. From this second conclusion Free Church- men dissent out and out, except in so far as the duty of enduring might arise from it. A judge who exhibited kindness and courtesy in his GG Vindication of the Clair,i of Right. manner asked, when giving his opinion in the Culsahnond interdict, whether any one could doubt that, in the case of a Dissenting Church, the Court of Session w^ould have power to enforce a contract ; and, after making the sup- position of its being found that a Presbytery could be held to have agreed to ordain and induct a person pro- posed by the donor of an endowment, he added the following words : " It would be no answer to say to us, ' You are not ecclesiastical, you cannot ordain.' The answer would be, ' No ; ' and for that reason we decern you to do it, as you agreed to do." That is to say, his lordship considered that the esseuce of Erastian encroach- ment would lie in the Court assuming the ministerial function of ordaining. He saw no encroachment in the Court assuming the power of ordering ordination ; he saw no disregard of the authority of Christ, with respect to His sacred appointments, in a Presbytery placing itself in a position of being obliged to obey such an order. No Free Church Presbytery would ever put itself under the supposed obligation, or would yield to such a judgment as the one suggested in the reasoning of the judge. It requires few words to show that the foundations of Free Church principle are at variance with the con- ception of such a compact between the Church and the State as may be interpreted by the Civil Courts towards their enforcing conformity to it in ecclesiastical action. Harmony between Church and State. 67 A Church adhering to those foundations cannot enter into a compact of that kind without unfaithfulness to her Head and King. She cannot bind herself to obey- any other voice in ecclesiastical action except His own, when it speaks to her through His Word, as that Word may be impressed upon her judgment and conscience. She might face the idea of compact if it simply meant that the Legislature agreed to establish and endow her upon a certain understanding of her doctrines and laws ; that it might afterwards find either a mistake to have been committed by it as to her meaning, or a change to have been made by her in her principles or modes of action ; and that, consequently, it might fairly with- draw the advantages and encouragement which it had bestowed. She might acquiesce in a supposition which left her free to say that the Legislature was requiring things of her that were contrary to her own original understanding, and that, consequently, she must sur- render her State advantages, and withdraw from the connection. But she would of necessity demur to any compact which binds her to submit to the smallest coercion in the exercise of her ecclesiastical functions.^ 3. Relation of the Old Foundations to a well-ordered Harmony between Church and State. When these foundations are looked at exclusively in 1 Appendix, No. IV. 68 Vindication of the Claim of Bight. their scriptural character, and free of all complications from the arrangements of a particular national constitu- tion, we have no occasion to distinguish between the supreme civil authority and the courts established by that authority for judicial action. We may look upon such courts simply as a department of the State's execu- tive force. We need not distinguish between the case of a constitutional government and the case of a despotic sovereign. No matter what the special position of the particular civil functionary who comes into contact with us, our scriptural rule is, " Obey and submit to him in all temporal things, but do not allow his commands or prohibitions to turn you aside in the smallest measure from the line you think best for the Saviour's glory in carrying out what you believe to be part of that govern- ment of His Church which He has made distinct from the civil magistrate." In the case of Churches not established, it depends not only upon their own action, but also upon the degree of careful discrimination exhibited by the civil authorities whether the operation of this fundamental Free Church principle can be kept in harmony with what is just and orderly. If two rules intimated within the last fifteen years be always observed, there need be no infringement of harmony. If, first of all, the rule laid down by Lord Cranworth in the Burntisland case, and ultimately given effect to by Lords Colonsay and Curriehill in the Cardross Free Church Principle not Popish. 69 case, be steadily and consistently maintained by Civil Courts, no direct encroachment upon what we count our spiritual liberty will occur. That rule is not to interfere with the regulations or working of a voluntary associa- tion, except for the purpose of deciding questions of defi- nite and tangible civil interest, when these are brought forward in a regular manner. The other rule (suggested by Lords Colonsay and Curriehill) is that, in an action of damages against the members of a voluntary ecclesias- tical court, an allegation of malice is required to make it relevant. These two rules are sufficient to obviate complaint on the part of Dissenting Churches that their spiritual independence is interfered with. I do not say that either or both can be held to embody an adequate recoo^nition of the ties of conscience which bring men together in those Churches. But the (Consistent opera- tion of both will prevent discord.^ It is maintained in some quarters that, if an Estab- lished Church be recognised as founded on our principle, the only logical inference is the Popish one, by which the Church is entitled to command the civil power in the exercise of its functions, or at least to enjoin authori- tatively upon it the judgment which she has formed regarding the extent of her own functions. If the eccle- siastical obligation to Christ were the only obligation to ^ Appendix, No. II. 70 Vindication of the Claim of Bight Him recognised by us, I grant that legitimate reasoning would lead to this conclusion. But we do not maintain the sole subjection of the Church to Christ and His Word more strongly than we do the sole subjection of the State to the same. We hold that the State is not at liberty to allow any judgment of the Church to turn it aside from the line which it thinks best for Christ's glory in fulfilling the duties of civil government. If the reasoning which identifies our claims with those of the Church of Eome were correct, then it would follow, from our premises regarding the subjection of civil authority to Christ and His Word, that the conscientious judgment of that authority must command the action of the Church. The twofold reasoning from our twofold pre- mises would thus land us in a contradiction. There is fallacy, therefoi'e, on both sides of the reasoning. It does not follow from the obligation of either party to be ruled exclusively by its own conscientious judgment as to the mind and will of Christ, that it must command the conscience of the other party, who is placed under an equal obligation. The only true inference is, that harmony of action between the two parties may be interrupted or broken, and that, if the difference be of a serious or permanently infiuential character, they cannot continue connected with each other in the fulfil- ment of what tlieir conscientious judgments severally impose upon them. But the evil of the disconnection A Genuine Will Required. 71 cannot be greater than what arises when the religious doctrine of the civil power is vitally at variance with the religions doctrine of the gTeat body of Christian people in a kingdom. And there is more likelihood of a cure. The adjustment of mutual relations between civil and ecclesiastical powers who concur in other vital points of doctrine, ought to be easier than the conversion from one strongly held religious faith to an opposite one held with equal strength. On the other hand, much better facilities for adjustment will arise, when the two powers are cordially admitted to stand upon an equal footing, and when they confer together on that footing, than when the one endeavours to tyrannise over the other. If all grounds of mutual jealousy be removed, terms of agree- ment may be speedily discovered. For where there is a genuine will, a practicable way will readily appear. I do not, in this section, anticipate the question how far the Free Church doctrine of Establishment can be made to work in connection with such a Constitution as that of Great Britain. I shall afterwards have occasion to distinguish between the position of the Legislature and that of the Civil Courts with respect to such questions. I only wish here to point out that whether under a civil Constitution like our own, a via media between Popish supremacy and Erastian supremacy in civil relations to an Established Church can be made good or not, the 72 Vindication of the Claim of Right. scriptural foundations of Free Church principle render it indispensable that persons who feel the obligations of them should never cease to aim at the attainment of civil and ecclesiastical harmony in some better way than either the Popish or the Erastian one. There is a practical difference of serious magnitude between the Free Church Claim, and that of those con- tended for by either the Church of Rome or the High Church Episcopalians. Our claim is not for the spiritual independence of a special order of men separated by a mysterious sacredness from other members of the Church, but for the spiritual independence of popular societies, in each of which all professing believers adhering to it have their several places and functions. Our Church Courts are representative Courts, which, by their constitution, reflect the voice of congregations, while they largely guide and influence it. Whatever theoretical objections to our system may be raised by those who do not understand it, one generation of attached adherents after another have rejoiced in it as combining, in a satisfactory manner, the legitimate influence of knowledge, training, and experi- ence, with an adequate expression and representation of popular religious desires. Thus the laity of Presbyterian communities, so far from being jealous of spiritual in- dependence, have earnestly welcomed and defended it.^ ' Appendix, No. IX. No Hope from Civil Courts. 73 CHAPTER IV. IMPRESSIONS AND EXPECTATIONS REGARDING THE CLAIM OF RIGHT BEFORE AND AT THE DISRUPTION. 1. Impressions and Expectations from May 1842 till May 1843 AS to its Effect on the Pending Conflict. The adoption of it was enough, apart from all atten- dant demonstrations, to show that the Church had ceased to expect a favourable consideration of her position from the Court of Session or the House of Lords. The speeches made by members of Assembly in support of it proved that all hopes of obtaining relief from these quarters had been abandoned. But by the firm mainte- nance of their ground, and the clear and full exhibition of its strength, the authors of the Claim expected to make the discussion of their defence aoainst all remainincy leo:al assaults so complete and convincing, that the overthrow of the ancient constitutional bulwarks by the civil tribunals, if it did take place, might appear in colours so conspicuous as to enlighten and arouse the defenders and friends of the sacred citadel throughout Scotland and the world. This expectation was largely realised. The adop- 74 Vindication of the Claim of Right. tion of the Claim was followed by several elaborate dis- cussions in the Court of Session, which exhausted both sides of the argument on its constitutional declarations. Those declarations showed that the Church would not accept of its rejection at the hands of the Civil Courts, but appealed to the Legislature. The tone of expecta- tion as to its reception by Parliament was not sanguine. But confidence in its truth and justice led Dr. Gordon, in seconding the motion for its adoption, and in expressing the feeling of his supporters as well as his own, to say that he did it with a hope that when the Claim came before " an enlightened Legislature — before high-minded and honourable men — they would not refuse a patient perusal of it." ** I have the conviction, which I am as little willing to relinquish," he went on to say, " that if they do give it a patient perusal, they will see the justice — and, therefore, the policy — of acceding to it. But if, unhappily, it should be otherwise — if they have resolved on refusing to grant what we think reasonable on our part to ask, I feel, for one, that we are bound to tell them that we cannot carry on the affairs of Christ's house under the coercion of the Civil Courts." The effect of the Claim upon the minds of some distin- guished gentlemen, who, as members of Assembly, took a leading part in a resolution to transmit a copy of it to Her Majesty, was remarkable. Not only did Mr. Makgill Crichton speak of it as an able document, containing an Support in Parliament. 75 admirable digest of the law of the case, and a full and concentrated statement of the arguments, which did honour to the Church in sanctioning it, and to Mr. Dunlop, who had drawn it up ; but Mr. Bruce of Kennet (father of Lord Balfour of Burleigh), was so filled with admiration of it that he wished the Assembly to express to Mr. Dunlop their decided approbation and their satisfaction with his zeal and devotedness. The Assembly believed that the Claim would tell on the minds of many members of Parliament and other public men. It did so. Its influence was such in Scot- land that twenty-five out of thirty-seven members of Parliament for Scotland, led by Mr. Maule, Mr. Ruther- ford, and Mr. Patrick Maxwell Stewart, and supported by Sir George Grey, voted in its favour. The impression produced by it was great at the time upon impartial inquirers. The late Duke of Argyll and the Marquis of Breadalbane advocated it, and the present Duke of Argyll, referring to it quite recently in his letter to Mr. Taylor Innes, said : " I admire that document as much as you do. It is the great boast of the Free Church that it has never been answered. As an argument on constitutional law, with the exception of a few para- graphs, I believe it to be unanswerable." The main object of the Church was not to verify an expectation that might be vain, but to put on permanent record a complete and unanswerable statement of her 76 Vindication of the Claim of Right. case. The accomplishment of this object is evidenced partly by such testimony as that of the Duke of Argyll, partly by the absence of any reply to the Protest of 1843 from the existing Established Church, and partly from the character of the attacks that have recently been made upon the Claim of Right itself. Any person carefully watching the course of opinion among sober-minded, scripturally instructed, and spirit- ually earnest Presbyterians, both in town and country, during the legal contentions, would have discovered that it was steadily advancing to a point where it would be ready to terminate in an outburst of zealous sympathy, if the action of the ministers and elders should be fitted to call forth such an outburst. Through the frequency of discussion, both in the Court of Session and in the Church Courts, a fire of enlightened zeal for the cause of spiritual independence had been kindled in many a humble cottage, as well as in higher places. The Wit- ness newspaper, with the wonderful brightness of Hugh Miller's genius popularising the whole subject and con- veying vivid impressions, had been widely circulated. Even before the preparation of the Claim of Right the congregations of the Church had become largely familiar with the essentials, and even with many details of the controversy. Speeches had been diligently studied by rustic intelligence as well as by educated reasoners. Four years had done much work in ripening the convic- Symioathy beyond Expectation. 77 tions which were afterwards openly manifested. The year which elapsed between the Assembly of 1842 and the Disruption was still more prolific of materials for general instruction. The Claim of Right and the corre- sponding Protest in 1843 were far more clearly appre- hended and appreciated by people of all ranks and conditions, than it is easy for most of the existing generation to believe. Peasants at home and mission- aries abroad were equally ready to respond to the voice that summoned them on the memorable 18th of May.^ 2. Impressions and Expectations as to the Effect upon THE Condition of the Free Church after the Dis- ruption. The ministers and elders who adopted the Claim of Right, who met in Convocation, and who followed Dr. Welsh and Dr. Chalmers to Tanfield, were not generally alive to the amount of zealous sympathy and countenance which awaited them. They had no lively expectation of the extended following, or even of the moderate measure of pecuniary support which the Free Church movement realised from the outset. At the Convocation they put away from them the conceptions of financial success which the sanguine temperament of Dr. Chalmers pictured forth for their encouragement. They preferred for them- selves and others the simplicity of the thought that they ^ Appendix, No. II. 78 Vindication of the Claim of Might. were about to cast themselves upon the providence of God, without allowing themselves to be iofluenced by earthly expectations. The authors of the Claim of Right expected to be free in conscience after the Disruption to act upon the prin- ciples of that document in a manner that was no longer open to them in the Establishment. When the terms of establishment had, in their estimation, been authorita- tively declared against them, they no longer felt free in conscience to violate those terms. But they were per- suaded that, in a disestablished condition, no terms of human adjustment could destroy the fulness of their freedom in conscience to follow out at all hazards their own conscientious judgment of what might be required in the spiritual government of His Church for the glory of their Lord and the good of His people. They not only expected, but knew for certain, that this freedom in con- science would belong to them. It was on that account alone, and not through imaginations as to how far they might or might not again be molested by secular forces, that, with lightened hearts and peculiar joy, they pro- ceeded to complete their sacrifice and to carry on their work. It is an entire misapprehension to suppose that they took for granted their escape by the Disruption from the spirit of opposition to their views, and from the fallacious principles of legal judgment which had driven them from their State connection. On the 28th of January, 1848, Question of Safety out of Estahlisltment. 79 Dr. Candlish said, in the Presbytery of Edinburgh, witli reference to his motion on the Stewarton decision, as being the final step in the controversy within the Estab- lishment : '' My belief is, that it is the first step of a far greater controversy, to be carried on oat of the Estab- lishment." On the 31st of January, he said, in the Commission of Assembly, speaking of the freedom which he claimed at the hands of the State for the Church, that it was '' a freedom which, if once overturned in the Established Church, will not long survive in any Church within the land. For the principle stated in Sir James Graham's letter does really negative the same claims as those made by the Church of Scotland when put forth in any situation by a Church of Christ. The old argument, that there cannot be an imperiuni in miperio, is an argument which tells against a Church, whether con- nected with the kingdoms of this world or not. The real question is, whether it is accordant with the safety of civil government to acknowlege any other king but Caesar — to acknowledge any other kingdom but Caesar's." The question was put to Dr. Chalmers, in the Convoca- tion, whether he thought the Church would be safe from Erastian encroachment, though disestablished. His only answer was, " When they persecute you in one city, flee ye into another;" and in the City Hall of Glasgow, on the 10th of March, 1843, he said: "Perhaps, after we get free, they may change the conditions on which they 80 Vindication of the Claim of Eight. now grant toleration. Then, if they do, here is a move- ment toward persecution, and for this we are ready also. We are ready to do all and to suffer all for the sake of that Gospel which we are commissioned to go and preach to every creature. They may call it an iTnperium in imperio ; they may say that we intrude upon the legiti- mate power of the Civil Courts or the civil law. It is no more an intrusion on the civil law than Christianity is an intrusion on the world." On the 25th of the same month, Dr. Candlish said in the Waterloo Rooms, Edinburgh : " It is possible that even out of the Establishment the claims that have been put forth against us by Csesar and his courts may follow us ; for indications and hints were given in Parliament of principles which, if carried out, would deny freedom not only to the Church established, but to the Church of Christ. Oh ! let us be resolved to maintain the rights of Christ the King, whether in or out of the Establishment, under persecution, if need be." On the same occasion Dr. Chalmers said : " The power which has driven us from the national may lift the hand of persecution and violence against us as a Voluntary Church." In the year 1858, Dr. Candlish, when bringing the case of Mr. Macmillan, of Cardross, before the Assembly, reminded his audience that before the Disruption he was always accustomed to maintain that the same grounds on which the Civil Court then proceeded would warrant Legal Opposition Exioected after Disruption. 81 their interference with the Church when separated from the Establishment. Thus the evidence is abundant, that the authors of the Claim of E-ig^ht and those who followed them were not, in making the Disruption, influenced by the imagination that their principle of spiritual independence would be safe from all assault when they should be acting in a Voluntary Church. On the contrary, they carried out their movement under the persuasion that the legal views which had oppressed them might possibly follow them, and oblige them again to suffer in what they believed to be their Master's cause.^ ^ Appendix, No. II. G PAKT 11. €oiximk mxti Dinirkatioii oi tlje Claim nf lUigljt. CHAPTER I. ITS OCCASION IN ALLEGED ASSAULTS BY THE COURT OF SESSION. Its first paragraph does not set forth its foundations, but simply explains its occasion. Supposed securities are there spoken of as having long been thought to place the liberties, government, jurisdiction, discipline, rights, and privileges of the Church beyond the reach of danger or invasion, but as having been recently assailed by the Court of Session (the very Court who ought to have protected them) to an extent which threatened their entire subversion. The idea of any assault having been made by that Court upon the rights of the Church appeared extrava- gantly out of the question to some of her most upright and honourable legal opponents at an early stage of the collision. Their habits of tliought seemed to render The Charge of Encroachinent. 83 them incapable of apprehending the true character of that idea. For example, a judge of eminent position, in concluding his opinion on the Lethendy case, said : " I cannot help adverting to a most mistaken notion which seems to prevail, that the controversy in regard to the power of the Church and the extent of its jurisdiction is one between the Church of Scotland and this Court, and that it behoves the Church to resist the encroachments that are attempted to be made by us on its rights." He added, that a little sober reflection might show those who were loudest in what he called '' this clamour " that the Church had chosen to come into conflict with the law, the statutes of the realm, and the legal rights of the lieges of Scotland, the Court of Session being the mere organ of the law. Such a statement made in the face of the arguments used by the minority of the Court in the Auchterarder case exhibited a strange inability to perceive either the nature of the constitutional grounds on which the complaint of encroachment was based, or the strength of matured conviction which led to its earnest maintenance. With a similar blindness to the real aspect of the position contended for, persons of good understand- ing in other matters have continued till the present time asserting that, since all that the Non-intrusionists de- manded before 1843 was what in their own view had been conceded to them by statute and common law, the Civil Court was the only legitimate and competent 84 Vindication of the Claim of Right. tribunal for deciding the questions that arose ; and so, being called upon to decide them, was acting judicially, and cannot be considered as having through any decision made an invasion on the province of the Church. Such reasoners seem not to be aware of the most conspicuous contention for the Church in the conflict before the Disruption. It was that, by the terms of her establishment, her Courts had assigned to them the function of interpreting the statutes and common law of the realm for their own guidance, in so far as either touched their direct ecclesiastical action ; that in this respect they stood on an equal footing with the Civil Court, and that their jurisdiction was thoroughly co-ordin- ate with that which belonged to it. This was the posi- tion which had been claimed since the year 1838. This is the inference to be drawn from the opinions of the minority in the Court of Session, and this is the footing on which the first paragraph of the Claim of Right proceeds. It is said that a Civil Court does not act of its own motion, but is obliged to act by the applications made to it : that it must decide according to its best judgment, and that, consequently, it cannot be justly accused of assault, invasion, or encroachment. The argument would be conclusive where no conflict of juris- diction is concerned. When the question before a Court relates to its own jurisdiction, the case is different. If one man, however conscientiouslv, commit the error of Error may he Encroachmient. 85 appropriating what really belongs to another, he may be acquitted of all wrong intention, but he may be justly found to have encroached upon his neighbour's rights. And so, also, if a Civil Court, with all honesty and con- scientiousness, commits the error of assuming a jurisdic- tion which does not belong to it, but belongs exclusively to another Court ; the application of a third party may have been the original moving cause of the error ; still, the error is one which renders the Civil Court justly liable to the charge of unconstitutional encroachment.^ This is the charge brought in the Claim of Right against the Court of Session. The first paragraph refers to the encroachments as having rendered it necessary for the Church to take steps of a decisive character. Something more sacred than constitutional right is indicated both by the opening and the closing words of that paragraph to lie at the root of the course which she was adopting. But the occasion of it is attributed to the assaults of the Court of Session. Whether the allegation of such assaults be well founded or not will be the object of inquiry in a subsequent chapter. ^ Appendix, No. II. 8 6 Vindication of the Claim of Might. CHAPTER II. STATEMENT OF FOUNDATIONS FOR THE CLAIM OF RIGHT. 1. Essential Doctrine of the Church regarding her Distinct Government. The second paragraph assumes the truth of the repre- sentations of fundamental Free Church principle which I have given in the introductory part of this publication. The terms of that paragraph are as follows : — " Whereas it is an essential doctrine of this Church, and a funda- mental principle in its constitution, as set forth in the Confession of Faith thereof, in accordance with the Word and law of the Most Holy God that there is no other Head of the Church but the Lord Jesus Christ (chap. 5CXV. sec. G) ; and that while God, the supreme Lord and King of all the world, hath ordained civil magistrates to be under Him over the people for His own glory and the public good, and to this end hath armed them with the power of the sword (chap, xxxiii. sec. 1); and while it is the duty of people to pray for magistrates, to honour their persons, to pay them tribute, and other dues, to obey their lawful commands, and to be subject to their Second Booh of Discipline and Gillespie. 87 authority for conscience' sake," from which ecclesiastical persons are not exempted (chap, xxiii. sec. 4) ; and while the magistrate hath authority, and it is his duty, in the exercise of that power which alone is committed to him — namely, the " power of the sword," or civil rule, as distinct from the '' power of the keys," or spiritual authority, expressly denied to him, to take order for the preservation of purity, peace, and unity in the Church ; yet the Lord Jesus, as King and Head of His Church, hath therein appointed a government in the hands of Church-officers distinct from the civil magistrate (chap. xxx. sec. 1) ; " which government is ministerial, not lordly, and to be exercised in consonance with the laws of Christ, and with the liberties of His people." In the third paragraph this government is described as distinct from that which belongs to the supreme power of the State, and as flow- ing directly from the head of the Church to the office- bearers thereof, to the exclusion of the civil magistrate. The language thus employed was manifestly intended to embody the doctrine of the Second Book of Discipline and of George Gillespie, as a doctrine derived on the one hand from the Word of God, and protected on the other hand by the ecclesiastical constitution of the country. The authors would not have thought that doctrine Avorth contending for had they not traced it to a divinely inspired origin. They would not have contended in the method which they adopted, had they not found 88 Vindication of the Claim of Right. bulwarks for its defence in legislative provisions by their ancestors. 2. Things Scripturally comprehended under the Distinct Government. The third paragraph of the claim states the objects comprehended under that government. It enumerates the preaching of the Word, administration of the sacraments, correction of manners, the admission of office-bearers, their suspension and deprivation, and the infliction and renewal of Church censures. But it also lays par- ticular emphasis upon the whole '' power of the keys," which, it says, is declared by the Westminster Confession, in conformity with Scripture, to have been '' committed " to Church-officers, and which, as well as the preaching of the Word and the administration of the sacraments, it is likewise thereby declared *' that the civil magistrate may not assume to himself." This doctrine regarding '' the power of the keys " implies that the Church has assigned to her by Christ not only the ministerial functions of performing such ecclesiastical acts as preach- ing, administering the sacraments, and ordaining to office, but also the power, as part of a distinct government, to regulate independently the circumstances in which, and the parties by whom, such acts are to be performed. So far as the sphere of ecclesiastical movement is con- cerned the right contended for is thoroughly comprehen- Popish Claim Repudiated. 89 sive. It implies that, in every arrangement for pastoral work or presbyterial or sessional discipline, the Church has liberty to follow what, in her own constitutional judgment, she considers best for the Saviour's honour, and for spiritual interests, without restraint from the civil power. The statement corresponds to what in previous sections I have represented to be required by our Lord's original appointments, as understood by the old autho- rities in the Reformed Church of Scotland, 3. Things excluded from the Distinct Government. The fourth paragraph contains a very explicit announce- ment that, since the jurisdiction and government thus claimed regard only spiritual condition, rights, and privileges, they do not interfere with the jurisdiction of secular tribunals, w^hose determinations as to all temporalities and as to all civil consequences attached to ecclesiastical decisions, the " Church hath ever admitted and doth admit to be exclusive and ultimate, as she has ever given and inculcated implicit obedience thereto." There is here a manifest repudiation of the Popish claim to temporal supremacy. That claim is eagerly spoken of by Erastian writers as following logically from what Free Churchmen maintain. But candid men will surely admit that at least it could not be more strongly condemned than it is by the language of the Free Church Claim of Right.^ ^ Appendix, No. IX. 9 Vindication of the Claim of Rirjht. The question remains, how far the view taken in that Claim can be harmonised with the right order of constitu- tional government in an earthly kingdom ? But no such question ought to prevent a candid acknowledgment that the promoters of the Disruption entertained decided opinions in opposition to Ultramontane pretensions, and that they conscientiously believed in the practicability of their own conception for the satisfactory adjustment of relations between Church and State. The feasibility of that conception will be best judged of after examination of the constitutional principles which, in 1842 and 1843, they set before the Assembly and the Legislature. Patronage and Non-intrusion. 91 CHAPTER III. THE INTERPRETATION OF CONSTITUTIONAL LAW. 1. Keferences to the Law of Patronage and to the Principle of Non-intrusion. In accordance with the well-know^n desire of Dr. Chalmers, the subjects of Patronage and Non- intrusion were re- ferred to only in the way of narrative, so as to show out of what circumstances the alleged encroachments of the Court of Session arose. The object was to concentrate attention on the claim to spiritual independ- ence and co-ordinate jurisdiction, and to maintain that the judgments complained of w^ere unwarrantable on whatever ground they w^ere based, and whether the acts of the Church had been legal to civil effects or not. Accordingly, out of eight references to the subjects now spoken of, seven are occupied with simple statements of alleged historical facts regarding them. Some of these alleged facts are undeniable ; others are associated with the le^al contentions of the Church. The first reference is in the ninth paragraph. It calls attention to the undeniable facts connected with the settle- 92 Vindication of the Claim of Bight. merit of the Patronage question at tlie Revolution, and ad- verts to the legal conclusion adopted by the minority in the Court of Session, tliat, under the old law, non-compliance with the obligations of Patronage led only to a forfeiture of the benefice, and not to interference with the liberty of the Church in the collation of ministers. The second refer- ence is in the tenth paragraph, and simply exhibits what were undeniably the terms of the Act of Queen Anne restoring Patronage, and indicates that it was a violation of the security furnished by the Treaty of Union. The third reference is in the eleventh paragraph, and repre- sents the Church as having not only protested against the Act of Queen Anne, and sought for its repeal, but as having at the same time, notwithstanding its enactment, maintained and practically exercised, without question or challenge, the jurisdiction of her Courts to determine ultimately and exclusively under what circumstances they would ordain ministers or constitute the pastoral relation- ship. The fourth reference is in the twelfth paragraph, and records the undeniable facts that the Church had required the form of a call from the people before the admission of a minister; and had, both before and after the passing of the Act of Queen Anne, declared it to be a fundamental principle, that no pastor be intruded con- trary to the will of the people. The fifth reference is in the thirteenth paragraph, and specially marks the re- assertion by the Assembly of the same fundamental Steps for Avoiding Collision. 93 principle in 1736, and the more recent declaration and regulations regarding it in 1834. The sixth reference is in the fourteenth paragraph, and relates to the decision of the House of Lords in 1839, confirming that of the Court of Session in the Auchterarder case, and to the distinction which the General Assembly of that year had drawn between submission to it with respect to the benefice, or other civil rights or privileges, and the entertainment of it as a reason for abandoning her funda- mental principle in her ecclesiastical action. It adverts, also, to the steps taken by that Assembly for avoiding further collision, and obtaining an harmonious adjustment by which a separation between the cure of souls and temporalities might be averted. The seventh reference is in the fifteenth paragraph, and represents the judicial decisions of the Court of Session in the last century in questions of Patronage as having been in favour of the distinction drawn by the Assembly of 1839, and of the absolutely exclusive jurisdiction belonging to the Church Courts in ecclesiastical arrangements. The carefully ordered sentences of these seven para- graphs prove that, however anxious the authors of the Claim of Right were to set forth truly the history and circumstances of the position which they occupied, and however decidedly they proclaimed the obligation which they felt to persevere in carrying out their principle of Non-intrusion, they carefully abstained from putting the 94 Vindication of the Claim of Right. abolition of Patronage, or even a legal recognition of Non-intrusion, upon the same level with redress for the encroachments made on the exclusive jurisdiction of the Church Courts. They were willing to encounter the separation of benefice from cure, with either its immediate or its remoter consequences, waiting patiently as long as they reasonably could while any hope of adjustment remained. They were not willing to take part in carrying on the government of a Church subject to the coercion attempted to be exercised by the Court of Session. In some of the other paragraphs relating directly to the subject of that coercion, the liberties of the people and the conscientious objection of the Church to intrude are incidentally maintained. But as such allusions are all for the purpose of protesting against the coercion, as unconstitutional, and as an assault which could not be submitted to, it is unnecessary to speak here more par- ticularly about them. There is, however, an eighth more pointed reference to the Act of Queen Anne in the twenty-first paragraph, which contains a protest against whatever had been done, or whatever might afterwards be done, either by the Legislature or by the Civil Courts, in alteration of, or derogation to, the government and privileges of the Church, as secured by the Treaty of Union. The protest is to the effect, that everything thus done, without the consent of the Scottish Church and nation, shall be in itself void Church and Nation Free to Claim. 95 and null, and of no legal force or effect. The meaning is, that the Scottish nation might legitimately demand that the Act of Queen Anne should be repealed as involving a violation of good faith on the part of England ; that the Scottish Church cannot consistently submit to obey it, if interpreted to give coercive power to the Court of Session over her ecclesiastical action; and that both the nation and the Church shall be free on any favourable occasion to claim as a right the restitution of all that might be lost through a refusal of the Legislature to concede the present claim. But the paragraph also contains an explicit statement of the determination of the Church to yield submission to all the Acts and sentences referred to in so far, though in so far only, as these may regard civil rights and privileges, whatever opinion they may have as to the legality or justice of the same, even while protesting that such submission shall not be deemed an acquiescence therein. 2. Value of an Appeal for the Claim of Right to the Opinions of the Minority in the Court of Session. In ordinary legal questions it is not desirable to dwell upon views which have been authoritatively overruled. If this were done by lawyers it would tend to introduce an injurious uncertainty into the law. If persons not trained in legal experience were in the habit of doing so, or were ordinarily countenanced in doing so, a dangerous 9G Vindication of the Clahn of Bight. waut of confidence in our judicial institutions might be engendered to no good purpose. It is not surprising, therefore, that even gentlemen of the legal profession connected with the Free Church of Scotland should shrink from any attempt to revive the constitutional arguments which were not successful before May, 1843. It is also very natural that those whose business it is to study the law as it now is should be gradually led to turn away from, or even to reject, conceptions which have been long ago excluded from judicial recognition. The force of conviction which the expression of those con- ceptions brought home to the minds of contemporaries can hardly be realised by the" greater part of the existing generation. The well-founded idea in application to ordinary matters, that it is anarchical to adduce the sentiments of judicial minorities in opposition to the authoritative declaration of the existing law, raises a prejudice against arguments founded on what such minorities have said respecting ecclesiastical jurisdiction. This prejudice is increased by the fact, that the judges composing such minorities have not failed in subsequent decisions to recognise the principles which have been authoritatively established, however much these may have been contrary to the opinions formerly expressed by them.^ This last-mentioned consideration ought not to influence us. The obligation resting on a judge to ^ Appendix, No. V. Value of Appeal to Opinions. 97 recognise the law, as it has been actually declared, cannot destroy the weight due to his carefully considered and elaborately expressed opinion upon a subject of legal importance, while the points involved were still open. At the same time, the admission must be frankly made, that it requires both a very peculiar and a very strong case to justify the maintenance of the ground taken by a minority of judges in opposition to what a supreme tribunal has decided. I contend that the vindication of the Free Church Claim of Right at the present juncture presents a case sufficiently peculiar and strong to justify an exhibition of the constitutional arguments that were urged with great power by the judges who sided with the Church in her pleadings before the Disruption. Those pleadings did not relate to an ordinary dispute as to civil rights, in which nothing except the interests of two contending parties was involved. They related to a great constitutional question, in which the jurisdiction of the Court itself was concerned, and in which the ancient rights of a national institution, alleged to have a stronger footing in the Legislature of the country than that of the Court itself, were thought to be put in jeopardy. If the arguments of the judges in the minority were well founded, the decision of the majority had the effect of destroying the Church as a national institution, of violating solemn securities, and of overturning the constitution of the 98 Vindication of the Claim of Right. country. The statement that such was the effect rests not only upon the views of the Claim of Right, but upon what judges indicated as the inevitable result of the decisions which they opposed. The grounds on which they proceeded must be thoroughly considered by those who would thoroughly vindicate the Disruption, and the peculiar position of the Free Church of Scotland. 3. Conclusions on the Jurisdiction Question by the Minority in the Court of Session. Before examining the arguments for the co-ordinate jurisdiction of the Church, it is desirable to see what that co-ordinate jurisdiction amounted to in the view of those who supported it. But at this point it is requisite to take notice of a distinction which requires to be carefully marked. I mean the distinction between the doctrine of spiritual independence as resting on a scriptural founda- tion, and the protection for the conscientious maintenance of that doctrine which may be furnished by the civil Legislature of a country. The protection may be given by a Legislature which itself sees the force of the scriptural argument, and sympathises entirely with the Church. Or it may be afforded by a Legislature which has no appreciation of that argument, but desires to respect the constitutional convictions of those who have. Thus, the result of legislative arrangement may be a thorough protection for Relations of Civil and Ecclesiastical Courts. 99 the Free Church principle, even though the Legislature are not themselves converted to Free Church views. This distinction leads to another distinction — I mean the distinction between the scriptural independence of the Church in its relations to the supreme powder of the State, and the constitutional independence of the Church Courts in their relation to the Civil Courts. In speaking of the scriptural foundations of the Claim of Right, I remarked that it did not signify as regards those founda- tions w^ith what form of civil authority the Church came into contact. It was unnecessary at that stage of the argument to distinguish between the supreme power of the State and the Civil Courts of the State. But when we have to deal with constitutional questions in a country like our own, we must keep in view that the Civil Courts are constitutional authorities, established by the State for the interpretation and enforcement of laws. In civil matters the Legislature carries out its enactments through the instrumentality of those Courts. The protection of the scriptural doctrine of spiritual independence must, therefore, rest under the constitution of Scotland, ujDon the relations established between the Civil and the Ecclesiastical Courts. Thus the spiritual independence of the Church might, in the eyes of lawyers, come to mean simply the constitu- tional independence given to the Church Courts with relation to the Civil Courts ; and judges in the latter 100 Vindication of the Claim of Right. Couits might reasonably regard that independence in the light of a constitutional privilege conceded by the State. Their doing so need not be held to touch injuriously the scriptural doctrine, that every true Church is independent in spiritual things, even of the State. But full protec- tion through Acts of Parliament and acknowledged prin- ciples of law for the conscientious carrying out of that doctrine, might be allowed even by men not believing it themselves, in the constitutional adjustment between Civil and Ecclesiastical Courts.^ Looking, then, at the conclusions of the minority in the Court of Session, we do not require for defence of the Claim of Right to find attestations by them to the truth of our scriptural foundations, or statements indi- cating that the Church is spiritually independent of the State itself. We simply require their testimony to the assertion, that the Legislature had made the Church and her Courts constitutionally independent of the Civil Courts in the ecclesiastical department, and had put the Ecclesiastical Courts in a thoroughly co-ordinate position with that of the Civil Courts, so that the Court of Session had no more right to interfere with the action of the General Assembly than the General Assembly had to interfere with the action of the Court of Session. Let us see, then, what on this footing was the constitutional doctrine of the six judges who differed from the adverse ^ Appendix, No. IV. Lord Fullerton on Auchterarder Case. 101 judgments. I mention the number six, because while Lord Glenlee was one of the five in the Auchterarder case, Lord Ivory succeeded him on the Bench, and was one of the five in later cases. Lord Fullerton. Lord Fullerton admitted that, however superior to earthly jurisdiction the Church might be in the spiritual sense, still as the Established Church of Scotland, privi- leged and endowed, she owed her institution to the State, and was the creature of the law of the land. But this view did not prevent him from asserting in the first Auchterarder case that the Church and her Courts stood on exactly the same footing with the Civil Courts. " It does not, and cannot follow," he said, " from the circum- stance of the Church being as an Establishment subject to the Leofislature, that the Church or the Church Courts are subject to the Court of Session.'' ^ He added that each class of Courts had its proper sphere, which the other was not entitled to invade, though both the one and the other might go far enough wrong without any other remedy than the voice of public opinion, or the inter- ference of the Legislature. In answer to the statement, that there ought to be no wrong without a remedy, he urged that the plan of one kind of court being pre- 1 The italics in my quotations are mine^ except when I state the contrary. 102 Vindication of the Claim of Eight. dominant over all others, would not secure an adequate remedy. For there might still be the possibility of error, precipitancy, and prejudice in that predominant court. Beferring to the distinction between civil and ecclesiastical jurisdiction, he concluded his emphatic declaration on the subject with these memorable words : •' I am not entitled to assume that the control of the one by the other is demanded by the necessity of the case, and thus, reversing the ancient error to jprovide agoAnst the possible fallihility of the Church by the supposed infalli- bility of the Court of Session or any other Civil Court" The opinion in subsequent cases of a judge who was in the minority in the Auchterarder case, requires to be considered in the light of his obligation to accept of the law as interpreted by the House of Lords. His bowing to their interpretation implies no change of his own original view. But when he takes opportunities of repeating that view, in so far as he sees the way open to it, he exhibits all the more the strength of his conviction. In the case of the Lethend}^ interdict. Lord Fullerton felt himself bound by the Auchterarder decision to acquiesce in the judgment, that the Presbytery were censurable for disobeying that interdict. But he grounded his doing so upon the fact of the question in which he had differed from the majority having been settled by the House of Lords. In the application, however, for an interdict against the carrying out of the Contumacious Resistance. 103 suspension of seven ministers in the Presbytery of Strath- bogie, through the spiritual ministrations of the persons sent by the Commission of Assembly, he not only opposed what is admitted on all hands to have been an extreme and unwarrantable judgment, but he took occasion also to vindicate with special clearness the co-ordinate jurisdiction of the Church Courts. Referring to what he considered the existing collision between two sets of courts, he said : " In every case of collision between courts, claiming each to be independent and supreme, the same acts are ex- pressed by terms of exactly opposite signification." Then pointing out how the Court of Session held the conduct of the seven ministers to be dutiful obedience, he went on as follows : — " The Church Courts hold, upon grounds which I am bound to believe they conscientiously consider satisfactory, that judgment of your lordships (the Auch- terarder one) to be an encroachment upon their jurisdic- tion, and consequently they must hold compliance with your orders to be a contumacious resistance of theirs." '' Neither party is entitled to say that the other is wil- fully or morally wrong. I may, perhaps, be led to make some allowance for their errors, as it is one in which I myself shared until set right by the judgment of your lordships and the House of Lords." He then indicated that, even though error be committed, its commission will not justify interference by the courts with acts that are clearly ecclesiastical. 104 Vindication of the Claim of Right. The following extracts set forth a few of the pithy remarks by which he illustrated his representation : — " In order to authorise this Court, the question of legality or illegality must be competently raised in a question of civil rights." *' If the rights alluded to apply to rights and privileges purely ecclesiastical, I demur to the proposition that this Court possesses any such power of protection." '^ The protection — the granting or withdrawing of these rights — is, I understand, conferred by law on other tribunals as absolutely and exclusively as the jurisdiction in civil cases is conferred on us." " Extreme cases prove nothing." " Every Supreme Court may commit the grossest injustice. When that is done a remedy will be found." (He maintains that it must not be found in the assump- tion by another court of power to review what is clearly foreign to its jurisdiction.) " The Church Courts would be just as well entitled to say that the Court of Session might abuse its power of review as we should be to say that they would abuse their power if not subject to review." ''It is impossible to deny that they (the Church Courts), like other courts of exclusive and independent jurisdictions, may consider themselves to possess the right inherent in all supreone jurisdictions, of determin- ing according to the best of their lights, whether a parti- The Culsalmond Case. 105 cular point falls within their supreme jurisdiction or not. To say that that power may he abused is just to say that every power may he ahused." The next extracts are from his opinion on the applica- tion for interdict in the Culsalmond case. " I hold it to be established as firmly as any point can be established, both by theory and by the most authori- tative practice, that the general power of the Court of Session to redress all lurong committed hy other courts,^ has no existence in the law and constitution of this country." " The pure and sole ground for interference with the proceedings of any separate class of courts is not that these courts have committed wrong and exceeded their proper jurisdiction, but that they have done so by encroaching on ours." " What is asked in this suspension and interdict but to obstruct or defeat the order or sentence of the judica- tories of the Church directly in the face of the statutes, and to authorise Mr. Middleton to do that which the Act of 1693 declares to be a high conteinpt ^ of the authority of the Church and the laws of the laouV^ '' When a religious system embraces particular theo- logical dogmas in regard to the ecclesiastically spiritual supremacy or headship of the Church from which certain practical consequences in regard to the independence of the Church Courts on all similar tribunals necessarily ^ These italics are Lord Fullerton's. 106 Vindication of the Claim of Right. flow, and when the Legislature sanctions and adopts that system as the established religion of the State, it would be difficult to deny that it co ipso adapts and sanctions those practical consequences as to jurisdiction which are inherent parts of the system. That implication would go far to sustain in this country the absolute independence of the Church in re ecclesiastical ^ Lord Fullerton added, that this was not left to im- plication, because the express words of the twelfth Act of the Parliament of 1567 were — " That there be no other jurisdiction ecclesiastical acknowledged within this realm other than that which is and shall be within the same kirk in that which flows therefrom concerning the pre- mises." The premises were the preaching of the true Word of Jesus Christ, correction of manners, and the administration of the holy sacraments. His lordship remarked, that it would be absurd to suppose that these were regarded as themselves exercises of jurisdiction, and held the meaning to be clear, that they were counted to be matters or subjects to which the exclusive juris- diction related. In the Stewarton case he embraced a view of the statutes, and the history which supported the right of the Church to be protected in the performance of the acts complained of as belonging to the sphere assigned to her. With reference to the application for reduction of the 1 The italics are Lord Fullerton's. Lord Moncreiff on Auchterarder Case. 107 deposition in the Strathbogie case, and the allegation that the General Assembly was supreme when it did not abuse its power, Lord Fullerton said : " The power to pronounce the sentence in a court admitted to be supreme necessarily implies the power to judge whether or not the offence warrants the sentence. If it coinmits flagrant lurong, it is not an excess of power letting in any separate court, hut an abuse of power, for which it is accountable to the State." Adverting to the opposite doctrine on the supposition of the Court holding it, he added : " We allow the Church Courts supreme ecclesiastical jurisdiction in form, while we deny it in substance, and we assert for the Civil Court in substance that very power which we pro- fess to disclaim." Lord Moncreiff. Lord Moncreiff, speaking in the Auchterarder case, contended that by the Act 1592 there was ''a direct committal of all ecclesiastical affairs into the exclusive jurisdiction of the Church Courts," and that there was also a " distinct recognition of the whole discipline and jurisdiction as previously in practice under the Second Book of Discipline in all points which had been agreed upon in conference as recorded by Spottiswoode." He further maintained that at the Revolution the Legislature made the jurisdiction of the Church to depend not 108 Vindication of the Claim of Right. on special Acts of Parliament, but broadly ''on the custom and practice of Presbyterian government " throughout the kingdom. Referring to the fact that from the Revolution to the date when he spoke " the Church, through its assemblies and inferior courts, had been in the undisputed enjoyment of the fullest powers of making laws for the general interests of the Church, and of directing the inferior courts in every department of ecclesiastical affairs, he expressed himself in the following sentences : — " I cannot, after all this, think it in the least doubtful that the Church is supreme in all matters ecclesiastical. I believe that this is the very first example in the whole history of the Church of an Act of Assembly in matters belonging to the ecclesiastical functions of its Presbyteries being attempted to be challenged in any Civil Court." " After having brought the deduction to this point, need I ask my Lord, whether a Church so formed and consolidated equally by statutes and by the usage of centuries, the security of which was made an in- disj)ensable condition of the Revolution Establishment, an equally indispensable condition of the union of the kingdoms, and the first sworn duty of every sovereign who is called to the throne, is not something more than a mere corporation with power to make bye-laws; whether it is not an essential and component part of the Constitu- tion of the realm, whose independent powers, judicial and LordMoncreiff on the Lethendy and Stewarton Cases. 109 legislative, are even more sacred and inviolable than the power and jurisdiction of the highest civil and criminal courts of the country. These may be changed or taken away, as they have often been. The others cannot be invaded in any vital point without a direct breach of what is fundamental and essential in the political state of the United Kingdom." In the case of the Lethendy interdict, Lord Moncreiff regarded the position of Mr. Clark as altogether different from that of the presentee to Auchterarder, and repre- sented the difference as being of a kind to prevent the Court having the same jurisdiction which they had assumed in the Auchterarder case. His lordship yielded to the authority of the House of Lords in that case, however much he dissented from their judgment. But he declined to go further than what its terms required. He could not admit the construction of it which would make it extinguish the whole rights and power of the Church Courts as he had hitherto understood them, and as they were declared in the existing statutes. For to admit that ^ construction, he thought, was the same thing as saying that it had overturned the constitution of the Church of Scotland. He, consequently, maintained that the procedure of the Presbytery of Dunkeld in inducting Mr. Kesson to the pastoral charge, notwith- standing the interdict, was a purely ecclesiastical pro- 1 The italics are Lord Moncreifif's. 110 Vindication of the Claim of Right. ceeding, with which it was incompetent for the Court of Session to interfere. The Stewarton case appeared in the view of Lord MoncreifF to derive its great importance not so much from the character of the facts involved in it as from the course of argument employed and the opinions expressed with respect to it. These rendered it, in his apprehen- sion, by far the most important cause which he had yet been called upon to judge of. He felt that it required him to exhibit elaborately his views of the jurisdiction belonging to the Church, in consequence of the opposite views which had been announced. He expressed himself as follows : — " I had believed it to be no subject of doubt or controversy that the Presbyterian Church of Scotland, as originally constituted in its early history, and as finally established unalterably by the statutes of the Revolution and the union of the kingdoms, possessed, by its Courts of General Assemblies, Synods, Presbyteries, and Kirk-Sessions, framed and modelled within it, power and jurisdiction, both judicial and legislative, in all matters spiritual or ecclesiastical, absolutely independent and exclusive, except as limited by express enactments of the Legislature not here in question, and which no Civil Court, itself created by the State for other ends, could touch or control. I believed this to have been so settled as at last to have become a fundamental, sound, and unalterable principle in the Fundaraental Laws Frittered Away. Ill constitution of the State, by a series of statutes more precise, more stringent, and, in the end, more broad and unambiguous than the laws which have created and have defined any other jurisdiction within the kingdom." (He added that though he was well aware the claims of the Church to this independent position — deemed by our forefathers as essential to its existence and useful- ness — had been often objected to, and might still be distasteful to some who formed an erroneous estimate of its character, he had never, till the discussions of the present day arose, heard it denied as a matter of fact that such was the law of the constitution.) " The very point of struggle throughout the seven- teenth century had been, whether the Church of Scotland should stand as independent, and whether its Courts should be supreme in all matters ecclesiastical. If the Revolution settlement did not accomplish this, it was not the Revolution for Scotland, which all the people of that kingdom believed it to be at the time, and have ever since believed it to be." " The essential thing (in that settlement) is, that the only government of the Church, and the sole power in all matters ecclesiastical, are declared to be in the General Assembly and other Church Courts, and that any supremacy in the Crown is abrogated as inconsistent with that settlement. Nor is there in any of the statutes the slightest hint that any other court constituted by the Crown for civil purposes 112 Vindication of the Claim of Eight. shall have any right or power to interfere to control the acts or judgments of the exclusive ecclesiastical jurisdic- tion. To my mind, it is a most perilous state of things, if such fundamental laws are to be now either denied in their plain meaning, or frittered away in minute criticism." " As I read the statute-book, I find no enactment which creates any such jurisdiction " (that is, a pre- eminent power to keep other courts within their legiti- mate action), " hut exactly the reverse, in the most peremptory and commanding terms which could he invented. Whatever the Church may be, the Court of Session is certainly the creature of the State absolutely. But it does appear very strange to me that any attempt to deny its jurisdiction is represented as a denial of the power of the State." " In the constitution of the Court of Session by the Act 1537, c. 36, we look in vain for anything like a primary or secondary jurisdiction in matters ecclesiastical, or any power to control the sentences or proceedings of the Ecclesiastical Courts. It is in the strictest sense created by the State for special purposes, Avhich are defined in terms directly exclusive of any such jurisdic- tion. The judges of it are appointed to sit and decide upon all actions civil." In the conclusion of his opinion. Lord Moncreiff asks whether the acts now complained of were indeed " the Contradiction in Terms. 113 flagrant wrong which must find a remedy by breaking down the bulwarks which the statutes of the realm have set up between the supreme Court of the Church and every other jurisdiction of the kingdom." '' He saw," he added, " that the principle about to be acted on by the Court might break down all the independence, and with it all the usefulness of the Church in the most sacred things;" and he closed by the expression of his " most deliberate and most decided opinion against a principle which tended to the dissolution or entire mutilation of that Church " by w^hich Scotland had been blessed.^ Afterwards Lord Moncreiff, on the question of the reduction of the ecclesiastical sentence of deposition in the Strathbogie case, made the following remarks : — " To say that we admit the independence of the Church in all spiritual functions, and then to qualify this by the condition, "provided they he rightly administered,^ appears to me a contradiction in terms. For that is not a supreme and independent court at all, the exercise and administration of whose functions or jurisdiction is subject to the control of some other court. To say that you admit absolutely the independence of the Church Courts ^ See Report of Stewarton case by J. M. Bell ; Eobertson's Report of Auchterarder case, and of Lethendy case ; also Duulop's Reports of Culsalmond and Strathbogie cases. 2 The italics are Lord Moncreiff's. I 114 Vindication of the Claim of Bight. in spiritual affairs, but that, if it can be stated that they have, in the precise matter of the deposition of a minister abused or perverted their powers, this Court can interfere to reduce their sentence, is first to grant that which, by the statutes, ought to exclude any such interference, and then to contradict it." He represented the contradiction as consisting, first, in the circumstance that even the judgment, in its own department of a confessedly supreme court, may, by the theory maintained, be such as to deprive it of its independ- ence; and secondly, in the circumstance that by the same theory it belongs to the Court of Session to set aside a sentence of deposition quoad spiritualia, pro- nounced by the supreme independent court.^ Lord Jeffrey. Lord Jeffrey rested his opinion in the Auchterarder case, so far as the question of jurisdiction was concerned, Is^, Upon the ground that no civil interest was properly brought before the Court for judgment; and secondly, upon the ground that the proceedings com- plained of were properly ecclesiastical, as to which the Court had no power to adjudicate. I extract the following sentences from his statement : — " I do not think the jurisdiction of this Court can be maintained even if it were assumed that, in relation to ^ See Dunlop's Report of Strathbogie case. Lord Jeffrey. 115 the general statutes of the realm, the proceedings com- plained of had been ultra vires of the Church Courts, provided they were still within their own province, and involved no assumption of civil jurisdiction." '' Something has been thrown out as if this Court possessed some supereminent and peculiar power of cor- recting or declaring the errors or excesses of power by other independent judicatures. I am unable to discover the traces of any such prerogative of extraordinary autho- rity in the Court of Session." " Though what the Presbytery did, or refused to do, may in its consequences'^ affect the civil interests of the pursuers, this can afford no ground for saying that they adjudicated upon such interests, or that a Civil Court may interfere with proceedings w^hich were in other respects within their ecclesiastical province. There can hardly be any proceedings of any court which will not in this way affect civil interests." " It is plain, therefore, that this indirect effect^ of an ecclesiastical proceeding never can touch the real char- acter of the proceeding, nor enter at all into the question of jurisdiction." " I conceive there are properly hut two things'^ which are under the jurisdiction of the Civil Courts, and that all the rest are exclusively for the adjudication of courts ecclesiastical ; and these two are the right of Patronage,^ ^ The italics are Lord Jeffrey's. 116 Vindication of the Claim of Bight. or presentation, and the right to the stipend'^ and other temporalities." Speaking of the original settlement of articles of reli- gion and Church government as proceeding from the Legislature, Lord Jeffrey said : '' It must be ultra vires of the Church to innovate materially upon these. But they are not left on that account to the cognisance of Civil Courts of law ; and if any question arise, either as to their interpretation or any alleged violation of them, I apprehend it to be cer- tain that it is in the Church Courts alone that they can be determined, and that we can in no such case inter- fere." " My opinion is, that when they have rightly sus- tained the presentation of the true patron,^ the proceed- ings of the Presbytery are beyond the control of the Civil Courts." *' When a supreme court falls into error, I know of no remedy but in the Legislature ; and conceive that nothing could be more unconstitutional than to allow one fallible tribunal to trespass beyond the field of its proper juris- diction to remedy or to declare^ an excess of power, though within its own jurisdiction, by another. If it had encroached upon our province as well as gone be- yond its own, the case would have been different." In the case of the Lethendy interdict, Lord Jeffrey ^ The italics are Lord Jeffrey's. Jurisdiction of Church. 117 held that the first Auchterarder judgment did not go so far as to involve the assertion of power in the Civil Court to order or prohibit the admission or induction of a presentee. He therefore went along with Lord Mon- creiff, in finding that the Presbytery of Dunkeld ought not to be censured.^ On the Stewarton case he spoke in the terms which I have extracted on this and the next page : — '' The sum of my opinion is, that the matters here in question are purely ecclesiastical,^ and involve no civil interest whatever ; and that as this Court can dispose of civil interests alone, so it has no jurisdiction in the case before us. I do not think it necessary to make out that the Church has in this case acted at all points conformably to the limitations or conditions which the Legislature may have attached to the powers bestowed. Even if it had exceeded those limits, my conviction is, that this Court would have no power to interfere, unless it had not only gone beyond its own province, but encroached upon the precincts of ours." " To speak of the jurisdiction^ of the Church as standing or consisting in preaching of the Word, correc- tion of manners, or administering of the sacraments, is to speak unintelligibly in any other sense (that is, than the sense of power to make laws regarding them) ; and the ^ Robertson's Reports. 2 The italics are Lord Jeflfrey's. 118 Vindication of the Claim of Right. meaning I take very plainly to be, that it should have power (jus dicire'^) to make and announce such laws as it might think necessary for the attainment of these objects ; and, inter alia^ to settle by what manner of persons and to what congregations the Word should be preached and the sacraments administered." "I agree with Lord Moncreiff, that the only just measure we can now take of the powers really given, and intended to be given, by general words in the statutes, is to be found in the powers actually and openly exercised by the Church at and before the time when validity and legality was distinctly given to them."^ The three judges whose conclusions I have now ad- duced, were undoubtedly esteemed as very high author- ities by their immediate contemporaries. For the sake of younger readers, I may mention that the two first named were elevated to the Bench by their political opponents, under the Duke of Wellington and Sir Robert Peel, long previously to the time of the Reform Bill, through the force of their high standing at the Bar, and their eminent legal attainments. The third. Lord Jeffrey, after serving the Reform Government as Lord Advocate for nearly four years, was appointed a judge in 1834, and soon acquired a great judicial reputation, ^ The italics are Lord Jeffrey's. 2 Report by J. M. Bell and others. Lord Gockhum. 119 which went on increasing till the day of his death at a very advanced age. The clear declarations of opinion by these eminent men told upon the preparation and terms of the Claim of Right, and upon the confidence of the Free Church in the constitutional ground assumed by her at and after the Disruption. Lord Cockburn. This distinguished man had an extraordinary talent for seizing upon and popularising the salient points of a cause which interested him. He could do more in that way than any one of his associates. The Free Church has great regard for his memory, and has greatly esteemed his expressions of sympathy. I have a very grateful recollection of him in his later years. But I feel that he did not go quite so deeply or minutely in his judicial statements before the Disruption into the agitated legal questions, as Lords Fullerton, Moncreiff, and Jeffrey did ; and I know that his opinions, therefore, did not influence the declarations and movements of the Non-intrusion party quite so much as theirs, nor command quite so much attention in the Free Church for some years of her course. The recent and posthumous publication of his striking observations has given a peculiar attractive- ness to his ideas. But I freely admit that, at the commencement of his opinion on the Stewarton case, he made a concession which does not altogether harmonise 120 Vindication of the Claim of Right. with the constitutional doctrine maintained by these other judges respecting the thoroughly co-ordinate juris- diction of the Church Courts; and which, consequently, does not fully reach the point contended for in our Claim of Right. He not only agreed with Lord Fullerton in the prin- ciple that, as an Establishment, the Church has no power, and especially no jurisdiction, beyond what the State has been pleased to confer upon it, but he differed from Lord Fullerton by admitting, also, that cases might arise in which it might be necessary for that supreme civil tribunal, to whose interpretation of their legal rights the highest authorities in the State must submit, to declare the boundaries between the civil and the ecclesiastical powers ; and that, when a proper occasion for such an exercise of its civil jurisdiction shall occur, the decision of the court must be received as conclusive. Still, the extracts from his judgments, which I here subjoin, lend decisive support to the Free Church cause, and it is difficult to reconcile some of them with the admission referred to. On the Auchterarder case, he said, with respect to its principles — " They involve the subsistence of the General Assembly as a supreme and independent ecclesiastical authority." " My opinion is, that in doing what the Court is now asked to condemn, the defenders (that is, the Presbytery) '' Would Think StilL" 121 were acting in a character and in relation to a matter in which, even though they were wrong,^ this Court has no jurisdiction to set them right." '' The whole thing is purely spiritual. Your lord- ships may look into this matter, though spiritual, as into any other matter, in so far as is necessary for the dis- posal of a civil interest." "The demand is, that this civil interest shall be reached by your lordships controlling the Church in the induction itself." " Let the Church be ever so wrong in what it has done, I have no idea that this Court has the power to give redress by taking the admission out of the hands of the Church, or by making the Church in the admission a mere instrument in the hands of the Court." In the Lethendy case. Lord Cockburn thought that the decision of the House of Lords in the Auchterarder one obliged him to decide against the Presbytery. Referring to his opinion in that former case, he said — " I thought then, and were it not for that case, I would think still, that the whole process of inductioUy^ from first to last, had been placed by statute in the hands of the Church, and that, leaving patrimonial interests to the protection of the ordinary courts of law, everything touching the constitution of the pastoral relation was entirely spiritual." ^ The italics are Lord Cockburn's. 122 Vindication of the Claim of Right. " But I feel that I cannot maintain this now." After showing what he held to be the result of the Auchterarder decision, he added the significant sen- tences : — " This certainly leaves few traces of what I have hitherto been always accustomed to think the Church of Scotland. I am far from saying that it extinguishes or even changes that constitution ; because I can admit the Church to have no constitution but what the law, as delivered by the Courts gives it. But it so essentially changes what I have till now believed to be its constitu- tion, that I cannot wonder at a Presbytery committing the mistake of walking by the old light." With reference to the Stewarton case, he said — " Your lordships may adjudicate as to any civil matter that may be implicated, even though this should imply a total separation of the temporalities from the spirituality. But this is not what is now demanded. Your lordships are about to go into the Presbytery, and to control that body as a Church Court in its ecclesiastical act. It is this redress that I think you have not jurisdiction to give." Lord Cockburn also made in the course of his state- ment on the same case, a remarkable declaration regard- ing the view he had taken in the Lethendy case. " In that peculiar case," he said, *' I thought that the Court was warranted in interfering. Subsequent reflec- '' An Original Attempt" 123 tion, however, has made me doubt this; and I am certain that I at least expressed myself far too strongly." In the case of the Strathbogie reduction, he made the following representations : — " If a person skilful in drawing modern statutes were to be employed to frame one for the express purpose of excluding the jurisdiction of this Court from doing what is now demanded, I do not see how he could do it more clearly than this jurisdiction is already excluded by the Acts of the Scottish Parliament on which the constitution of the Church rests." He represented to the Court that a course of unde- viating practice had made it evident that their prede- cessors had only required evidence of deposition by the Ecclesiastical Courts with a view to civil results. It might possibly be, he said, that they had sometimes refused civil effect to depositions. But this was the first instance in which the Court had been asked to control the action of the Church in deposition, or to defeat or disregard a deposition as to all effects. This, he maintained, was entirely an original attempt. A court, he thought, which had no jurisdiction in a matter, could not acquire it because another supreme tribunal had within its peculiar and exclusive sphere misconducted itself.i ^ Reports referred to before. 124 Vindication of the Claim of Right Lord Ivory. This clear-headed and accomplished judge declared his adherence to the doctrine of co-ordinate jurisdiction, as maintained by Lords Fullerton, Moncreiff, and Jefifrey ; and he supported it by a remarkably distinct and power- ful opinion on the case of the Strathbogie induction. He exhibited at the outset three fundamental points — he proved, first, that if courts be truly co-ordinate, a conflict can only come where a narrow line of separation occurs between their spheres ; that neither the one nor the other can enforce its view upon the other, because to allow its doing so would be to cut the knot of a difficulty in place of solving the difficulty ; and that each co-ordinate court may and must enforce its view upon its own officers and members. He proved, secondly, that the existence of such co-ordination in courts had been recognised in Scottish law, remarking that an asser- tion by the head of the court as to the necessity of one pre-eminent and regulating tribunal in every civilised country had given men courage to say, without adequate ground, as if it were a matter of course, that there must be here, as well as elsewhere, one such supreme, regulat- ing tribunal; but that the idea was really a new and startling one. His proof lay in quotations from Lord Stair, who speaks of various coexisting, supreme, and independent judicatories, and says that the Court of The Explosion. 125 Session has " but a limited jurisdiction " to interpret statutes in civil causes ; emphatically adding that this interpretation can have no other effect but in relation to the said causes, without prejudice to other judicatories to interpret the same as they are convinced. Lord Ivory made it manifest that the Court of Session had not, by the terms of its institution, been made a supreme, universal, and exclusive arbiter, and that no mastery over all other courts had been conferred upon it. He proved, thirdly, that as the Church is admitted to have a supreme and exclusive jurisdiction in her own depart- ment, the principles previously explained by him must preclude any other court from interfering with the supreme court of the Church, and must leave that court free to interpret statutes for its own guidance. Thus it appeared to him that the Church was now claiming nothing more than other independent courts. He pro- ceeded as follows : — " Thus understood, it has ever appeared to me that the claim of the Church Courts is irresistible, and that the counter pretensions by which it has been met in behalf of the Court of Session, as the supreme civil court of the land, rest upon no foundation either of principle or authority, but are altogether of modern and very recent invention. As to the more ancient, and hitherto undis- puted and received doctrine, which is now said for the first time to be ' exploded,' through the more careful 126 Vindication of the Claim of Right. and accurate deliberations of these our own days (though not exploded, I fear, without some of the violence which attends other explosions), I must say that, in a question of constitutional law and history like the present, it stands still recommended to me by its very antiquity. In the face of nearly 300 years of unbroken recognition of the doctrine said to be exploded, I am jealous, I must confess, of the new reading. Contemporanea expositio optima interpres} At all events, it is hardly reasonable in the circumstances to deal with a doctrine which had thus stood the test of ages, as if that doctrine, and not what has now been substituted in its place, were the innovation. For my own part, I am willing to deal with the new doctrine on its own merits ; but when I find that doctrine fundamentally rested in the face of all precedent and principle, ^u-pon such ground as the assertion of a supreme, universal, and privative jurisdiction in the Court of Session to read the statute and common law of the land — not for itself merely, but for other tribunals not less independent in authority than itself — and even to compel these tribunals to adopt that reading as the measure of their own co-ordinate rights, I cannot help taking my stand by the ancient landmarks, and can be no party to what I must consider an unconstitutional encroachment upon them." ^ The italics are Lord Ivory's. 2 These italics are mine. Lord Glenlee. 127 The quotations and references which I have selected from the utterances of five judges are far more than sufficient to show that the assertion as to the Free Church constitutional doctrine having been recognised both in the statutes and in the old judicial practice, was no ill-considered suggestion by the authors of the Claim of Right, but arose from the carefully elaborated and deliberate judgments of men who were confessedly distinguished ornaments of the Scottish Bench. ^ Lord Glenlee. I have reserved my notice of the view taken by this highly esteemed and acute judge, not from thinking it of less importance than what is furnished from other quarters, but because it was unique both in the circum- stances of its delivery and in its own nature, and because from his having been the oldest judge on the Bench, and from his familiarity with ideas formerly prevalent, it provides a good introduction to the question how far our doctrine of an absolutely co-ordinate jurisdiction is borne out by the legal decisions and practice of the last century. Lord Glenlee was prevented by illness from hearing the opinions of other judges in the Auchterarder case before delivering his own. A very peculiar impression was thus made, when he was found taking for granted — as almost axiomatic — the very doctrines which the ^ Dunlop's Report on Strathbogie Reduction. 128 Vindication of the Claim of Right. majority of the Court had denied. Speaking of the words regarding Patronage in the Act 1567, he says : — '' It appears to me that these words do not reserve the right of Patronage generally, but that the Act simply reserves the right of presentation ; and then goes on to point out how that is to be effectuated ; declaring in precise and positive terms that an appeal may be brought to the General Assembly, and that thus their judgment shall end the cause. My idea is, that it was the euixa voluntas of the Legislature, by this Act, to confine the right of patrons to a mere right of presentation ; and in pointing out the course to be taken by them in order to effectuate this right, it declares that the cause may be appealed to the Assembly, where it must take end by the judgment of that Court." He afterwards intimated a decided opinion that, by the terms of the statutes, and the known laws of the Church when the statutes were passed, the word " quali- fied " must include the question of a man being qualified for the particular charge. " I think," he says, in a previous sentence, " I may take for granted that here (that is, in Scotland) no person can be intruded on a congregation contrary to the will of the congregation." It is evident that he also took for granted that the decision of the whole question of a person being qualified, according to this standard, lay exclusively with the Pres- bytery, under reservation of a right of appeal to the Practice of the Last Century. 129 Assembly, whose judgment was to be absolutely final. He thought that the evbixa voluntas^ of the Legislature had fixed both the points raised by the Auchterarder case in favour of the Church — that is, both the exclusive jurisdiction of the Church in the matter, and the principle of Non-intrusion, as enforced by the Veto Law. He held the principle of the old law and practice to be, that a Pres- bytery was not entitled to disregard a presentation by a lawful patron, but was bound to receive and act upon it, according to the rules of the Church ; but that these rules warranted the application of the principle of Non- intrusion in the exercise of an independent jurisdiction.^ Lord Glenlee had no opportunity of expressing his sentiments with respect to any subsequent case. But the character and substance of his Auchterarder speech are thoroughly in unison with the declarations of Lords FuUerton, MoncreifF, Jeffrey, and Ivory, while in import- ant points they coiTespond to the testimony of Lord Cockbum.^ 4. Legal and Judicial Practice on the Jurisdiction Question during the Last Century. The judgment of Lord Glenlee goes a great way to prove what must have been the prevalent ideas upon this subject entertained by the Court in his younger days. 1 The italics are Lord Glenlee's. 2 Robertson's Report. ^ Appendix, No. V. K 130 Vindication of the Clctim of Right. Lord Cunningham (who deserved credit for the honest simplicity, as well as for the distinctness with which he avowed his adverse sentiments), when speaking on the Auchterarder case, admitted the statement of Lord Jeffrey, that none of the cases that came before the Court during the last century were brought forward at the same stage, or in the same circumstances, though he did not see the legal distinction which prevented Lord Jeffrey from applying their results against the pleas of the Church. But when dealing as Lord Ordinary with the case of the Strathbogie deposition, he had advanced to a stronger judgment of rather a striking character. It had been suggested by the minority of the Court that the old cases were disposed of on the principle laid down by Lord Kames, that, even when a Presbytery acted illegally, there was no other remedy except the with- holding of endowments, and that the ecclesiastical sen- tences must stand if confirmed by the Assembly. But Lord Cunningham, in his note as Lord Ordinary, declared that he held this dictum^ of Lord Kames to be now exploded,^ through the more careful and accurate deli- beration of recent times. This idea, deprecated, as we have seen, by Lord Ivory, involves an important admis- sion. I mean the admission that the minority were right in their estimate of former judicial conceptions, and that the doctrine of the majority was an innovation. ^ The italics are Lord Cunningham's. Lord President Hope. 131 For a dictum could hardly be spoken of as exploded if it had not prevailed at a former period.^ The same admission was virtually made by the Lord President in his speech on the Auchterarder case. That speech obtained approbation in the House of Lords for its judicial character. From its own point of view, it was both judicial and honest. It resembled that of Lord Glenlee in its conciseness, in its decisiveness, in the speaker not having heard the opinions of other judges, and in its taking for granted what other judges eodea- voured to disprove by elaborate argument. Lord Glenlee took for granted the chief things contended for by the Church as things fixed by old peculiarities of Scottish law. The Lord President took for granted certain general principles which are received as fundamental by the legal mind of England, and the erroneousness of some contrary ideas which had influenced the judicial mind of his predecessors on the Scottish Bench. But this charac- teristic of his judgment had the effect of conceding one-half of the argument on which the Claim of Right is based. He knew that he could quote no case in which, during the last century, the Court of Session had given orders to a Church Court to take on trial or admit a presentee, or in which they had reversed a settlement of a minister so far as the pastoral office was concerned. But he said — ^ Reports referred to. 132 Vindication of the Claim of Right. " The cases are numerous in which this Court found the patron entitled to retain the stipend as in a vacancy. Now, the Court could not find this without a thorough investigation and inquiry into the proceedings of the Presbytery, and a judgment that in the settlement that body had done wrong — clearly establishing the control of this Court, even in cases purely ecclesiastical." He thus admitted that his predecessors had gone no further than to regulate the right to a stipend, while he assumed, simply as a matter of inference and general principle, and not of direct Scottish precedent, that the Court was entitled to control the Church. He did not recognise the distinction exhibited by more than one of the minority between a right of investigation with a view to civil consequences, and the same right with a view to direct control. But the recognition of the fact that the " numerous cases " referred only to stipend, is a virtual admission of what the minority maintained. His admis- sion, however, goes a great deal further. For he went on to say — " We are freed from a difficulty, which seems to me very unaccountably to have embarrassed our predecessors. I mean that no other person has been presented and inducted by the Presbytery into this living, so that if we are of opinion that we ought to give redress, we can do so without interfering with what our predecessors seem to have considered as a sacred character which they could The Old Gases. 133 not touch or recall." " How our predecessors came to be of opinion that a man's ordination should convert an illegal appointment into a legal title to the very office into which he had been thus illegally intruded, I cannot understand. In my humble opinion, this Court, having found his admission to be wrong, should have ejected him from the benefice, just as they would eject a tenant or any man who, on a title found to be illegal, had got into possession of a house or a farm." ^ Here is a plain and honest acknowledgment that a view associated with the sacredness of spiritual action by the Church as to the pastoral office, had prevented former judges from doing what the majority of the modern judges, through the influence of a new light and the consequent *' explosion," happily criticised by Lord Ivory, were now prepared to attempt. The view taken of the old cases by the minority was mainly founded on the distinction I have referred to, which they held to have always prevailed in legal practice and decisions previously to the recent discussions. I mean the distinction between finding an ecclesiastical judgment to be illegal, so far as civil effects are concerned, and assuming a right to correct the illegality by control- ling the action of the Church. Lord Fullerton said : ''In every one of the cases the jurisdiction of the Court was necessarily let in by the ^ Kobertson's Report. 134 Vindication of the Claim of Right. existence of a competition of civil or pecuniary rights." And he dwelt emphatically on the fact that, though the Assembly had undoubtedly the power to revoke an induction to the pastoral office, no attempt was ever made to compel their doing so, even in instances where it evidently would have been made, had there been the slightest notion that such compulsion Avould be competent. Lord Moncreiff maintained the same view of the former practice, and said that not one of the cases gave the slightest sanction to the contrary plea. Lord Jeffrey said : "In all the cases hitherto where the Civil Court has interfered, the Presbytery had manifestly usurped a civil jurisdiction, and had judged erroneously upon matters which it was the privilege of the Civil Courts alone to determine." Speaking of cases in which Presbyteries may have inducted pastors while there was a dispute as to the right of patronage, he said : " In such cases Presbyteries have assumed a jurisdiction extra provinciam, and sustained or rejected presentations so as to explicate their own clear right to examine and induct, at the peril of having all patrimonial interests adjudicated according to the final judgment of the only binding authority. What the Civil Court alters or disregards is only what was erroneously decided by the Church Court upon the civil question of patronage. The actual induction remains untouched and unquestionable A Strong Presumption. 135 by us." Referring further on to the induction of presentees upon unlawful presentations he said : ''The Civil Court has always disregarded such inductions as giving right to the temporalities." " If being ' ultra vires * gave a jurisdiction quoad omnia, how is it that in most of these cases the presentee once inducted was yet allowed to hold the spiritual function of parish minister, and to prevent the induction of any other person, while he himself was not entitled to any part of the temporalities." " The only answer is, because it was felt and acknowledged that the Civil Court only adjudi- cate upon what was properly civil." Referring generally to the old cases, Lord Jeffrey added, " In every one of these cases the Presbytery had objected to the title of the patron. I am not aware of any case whatever in which this Court has been asked to interfere where a presentee was rejected on grounds altogether apart from the validity of his presentation and emerging in the course of regular ecclesiastical proceedings." ^ The references now made to statements from the Bench on the Auchterarder case, are fitted to create a strong presumption in favour of what is maintained in the Claim of Eight on the subject of legal precedent. I have introduced them as an important preliminary to a ^ Robertson's Report of Auchterarder Case. 136 Vindication of the Glaimi of Right. careful examination of the particular cases enumerated in that document. It is needful to look at these, not only as they are adduced by its authors, but also as they were founded on by the minority in the Court of Session. Previously to the preparation of the Claim, the public mind had become familiar with the argument respecting them to such an extent as to render special explanation of them unnecessary beyond such distinct allusion as might lead any future inquirer to identify them. The mention of them occurs in illustration of the fifteenth paragraph. Before adverting to its terms, it is desirable to notice what the only kind of description is which can truly correspond to the conception of the old legal practice in Scotland that was entertained by Lord Fullerton and the judges who agreed with him. If a veritable narrative of what took place in the last century before the Court of Session had presented a succession of instances in which that Court had continually refused to grant what was actually pressed upon them, the legitimate inference would have been, that the law regarding the kind of applications had not been fully settled, and that there must have been specific peculiarities in the indi- vidual examples which prevented them being considered as sufficient precedents to deter from new actions in the same direction. The evidence really required to support the pleas of the Church was evidence of a legal practice, both in the procedure of the Court and in the advice of Advice of Counsel, 137 counsel, which would indicate a settled conviction as to what was legally competent. The general statement, therefore, in the Claim of Right, cannot be fairly read as indicating a positive judicial refusal in every instance quoted to interfere with the absolutely co-ordinate juris- diction of the Church. It must be looked at as pointing to a state of practical action, both on the Bench and at the Bar, which proves what the legal doctrine was under- stood to be. The fact that parties were deterred by good advice from asking what the Court could not be expected to grant, is a confirmation of that doctrine greater in value than a repetition of positive judicial declaration, provided there be any proof of such declaration at all. Let the terms of the fifteenth paragraph be considered in this point of view. That paragraph does not state, as has been represented, that in every one of the examples which follow, the Court of Session refused to interfere with the peculiar functions of the Church. It does not imply that in them all it had opportunity for thus re- fusing. The idea is quite unreasonable that such was the intention of the paragraph, and it does not convey that meaning literally and grammatically. People fami- liar with the controversy in 1842 understood the subject too well to put such a construction upon a condensed summary of extended expositions. The authors meant, and were understood to mean, just what the judges in the minority meant. 138 Vindication of the Claim of Bight. The chief statement of the paragraph is, that even in instances of a Presbytery acting ultra vires in rejecting presentees and admitting other persons to the pastoral charges, the Court of Session never attempted or pre- tended to direct or coerce the Church Courts in the exercise of their functions. This negative averment is the onl}^ one which extends to every one of the examples afterwards quoted. The paragraph further asserts, that the Court during the century after the passing of Queen Anne's Act, limited their decrees to the regulation and disposal of the temporalities, it being manifestly intended, not that in every instance they were asked to do more, but that in no instance whatever did they do more. The last clause is in these words — " Refusing to interfere with the peculiar functions and exclusive jurisdiction of the Church." The fair interpretation of the clause is, that while the Court never so interfered, they positively refused to do so when the idea of such action was in any form suggested to them. To suppose the meaning to be that a positive refusal had been reached and realised in each case is inconsistent with an adequate comprehen- sion of the subject dealt with. The first case appealed to in support of the general statement as now explained is that of Auchtermuchty. The history of it, as given both by Mr. Whigham and by the Dean of Faculty, the counsel against the Church in the Audit erarder case, is such as to show that the Ad Hunc Effedum. 139 patron and presentee would have taken every advantage toward having an illegal induction interdicted or reversed that the law could be expected to afford them. They endeavoured to prevent the action of the Presbytery by advocation, which the Court on consideration found to be incompetent. Why did they not afterwards apply to have the settlement reversed by authority of the Court of Session ? They made such application to the com- mission of Assembly, who acceded to it. The next Assembly having superseded that judgment of the com- mission, why did the patron and presentee not ask the Court of Session to compel the reversal ? Why was the action before the Court confined to a demand for the stipend on the part of the patron ? The obvious answer, without proof to the contrary, is that they were advised to that effect, on the ground that any further application would be found incompetent. Two judgments of the Court are reported — one pronounced on the 13th of February, 1735, and the other on the 14th or 15th. The terms of the first are : " The Lords found that the right to a stipend is a civil right, and therefore that the Court have a power to cognosce and determine upon the legality of the admission of ministers ad hunc effectum, whether the persons admitted shall have right to their stipends or not ; but continued the rest of the cause till to-morrow." The second judgment is as follows : — " The Lords 140 Vindication of the Claim of Right. found that a Presbytery refusing a presentation duly presented in favour of qualified persons against which there lies no legal objection, and admitting another person as minister, the patron has right to retain the stipend, as in the case of a vacancy, and therefore finds the reasons of the suspension relevant, and supersedes ad- vising the other points till Tuesday next." ^ The suspension related simply to the payment of stipend, and the reserved points concerned the validity of the title to the patronage, which was determined after- wards in the patron's favour. The words ad hunc effectual are printed in italics by the contemporary reporters, and prove that the Court put emphasis upon them as indicating a limit to their power. They had found an advocation incompetent, and the only thing now which the parties were advised to ask for, or which the Court found competent, was a decree as to the stipend. The case is a manifest example of what is affirmed in the Claim of Right, and of that special discrimination by which, in those days, both advis- ing counsel and the Court of Session carefully marked the difference between what they thought competent and what they thought incompetent — a discrimination which, in application to the subject. Lord President Hope confessed himself unable to understand. 1 Moncrieff v. Maxton, 15th February, 1715 ; Fol. Diet, 2-47 ; Mor., 9909 ; Elchie's Pat. 1. Auchtei^muchty and Culross. 141 Lord Fullerton, speaking of the case, said — " Nothing can be conceived more guarded than the judgment ascertaining and defining the principle upon which the competency of such an inquiry (that is, an inquiry into the legality of the induction) was sustained. One might think that it was worded for the express pur- pose of guarding against the doctrine now maintained on the part of the pursuer." The Solicitor-General (Rutherford) had previously main- tained, with respect to the same judgment, that it was impossible '' to figure a case in which the Court confined itself more exclusively, and with more caution, to its separate jurisdiction." Lord Moncreiff pointed out that there was '' no attempt to dispute the right of the person inducted to be minister quoad spirit ualia, or to make the presentee the min- ister." " No such question," he said, " was for a moment thought of; the patron merely claimed a right to retain the stipend." The words in the Claim of Right are in entire accord- ance with this representation, as follows : — " In the case of Auchtermuchty, where the Presbytery had wrongfully admitted another than the patron's pre- sentee, the Court found ' That the right to a stipend is a civil right ; and therefore that the Court have power to cognosce and determine upon the legality of the admis- sion of ministers in hunc effectum whether the person 142 Vindication of the Claim of Right. admitted shall have right to the stipend or not;' and simply decided that the patron was entitled to retain the stipend in his own hands." The cases next taken notice of are those of Culross, Lanark, and Forbes, in these terms : — " So, also, the same course was followed in the cases of Culross, Lanark, and Forbes ; in reference to one of which (that of Lanark) the Government of the country, on be- half of the Crown, in which the patronage was vested, recognised the retention of stipend by the patron as the only competent remedy for a wrongful refusal to admit his presentee; the Secretary of State having, in a letter to the Lord Advocate of Scotland (January 17, 1752), signified the pleasure of His Majesty " directing and ordering his lordship to do everything necessary and competent by law for asserting and taking benefit in the present case of the said right and privilege of patrons by the law of Scotland to retain the fruits of the benefice in their own hands till their presentees be admitted." The circumstances of the judgment in the case of Culross were precisely similar to those in that of Auchter- muchty. A bill of advocation for preventing an induction in opposition to a presentation found eventually to be valid was presented, but refused as incompetent ; and thereafter the parties were advised to apply only for a recoo-nition of the patron's right to the stipend, in which application they were successful. Lord Fullerton declared Case of Lanark. 143 it to be of exactly the same kind with the preceding one, involving nothing more than a competition for a pecuniary right, and originating in an erroneous judgment of the Presbytery regarding a title to patronage. Lord Moncreiff treated it in the same manner. It is quoted simply as an illustration of the general fact, that an application for the stipend was then understood by lawyers to be the only competent resource against an illegal induction to a pastoral charge.^ There is a variety of evidence to the same effect in connection with the case of Lanark. In consequence of competing claims to patronage, Dr. Dick was inducted to the pastoral charge, on the footing of a presentation which was afterwards found to be the wrong one. It is remarkable that the junior counsel against the Church in the Auchterarder case, when commenting on the Lanark decision, admitted that the Civil Court could not unloose the spiritual relation con- stituted by the spiritual act of ordination ; showing that the old ideas were not quite " exploded " in his mind, and that the new light had failed to shine upon him as much as it had on others. The Crown, as patron, claimed the stipend on account of the illegal induction to the pastoral charge. But while this was the only kind of 1 Nov. 19, 1748.— Fol. Diet. 4, p. 49; Mor. 9909, Kilkerrin Pat. 2 ; Jan. 21, 1749.— Fol. D. 4, pp. 50, 54, Kilk. 3 ; June 26, 1751.— Fol. D. 52, Fol. 213, p. 256, Mor. 9951, Elchie's Pat. 4. 144 Vindication of the Claim of Right. action raised, the Secretary of State, in directing the Lord Advocate as to the course to be pursued, confined himself to signifying the pleasure of His Majesty that everything necessary and competent by law should be done " for asserting and taking benefit in the present case, of the right and privilege of patrons by the law of Scotland, to retain the fruits of the benefice in their own hands till their presentees be admitted." The fact that the Secretary of State looked to no other remedy but the fruits of the benefice leads to the inference that he was not advised to consider any other remedy as competent. The expression, also, " till their presentees be admitted," indicates a belief that the remedy would in the end be sufficient, insomuch as men would not generally retain pastoral charges without the usual means of support. This view of the ground on which the advisers of the Crown proceeded, is not only strengthened but demon- strated to be beyond question, by the terms of the pleas raised before the Court in support of the application for the stipend. After reciting the statutes which establish the patron's rights, and allow him to retain the fruits of the benefice, the argument for the Crown proceeds as follows : — "These statutes, though suspended during the sub- sistence of the Act 1690, again revived when patronages were restored. Without some such constitution the right of presenting would be inept. The compulsitors of the law, which formerly took place for enforcing presentations, A More Gentle Remedy. 145 were not thought so well accommodated to the genius of Presbytery, and therefore a more gentle remedy was devised hy these statutes." Reference is then made, in the same document, to the cases of Auchtermuchty and Culross, as illustrating this statement. We have thus the authority of the legal advisers of George the Second, including the Lord Advocate, in favour of the constitutional doctrine which was con- sidered by the majority of the Court of Session in 1838 to be '' exploded," but to which the minority adhered, and in favour also of the interpretation which the Free Church Claim of Right puts upon the cases of Auchtermuchty and Culross. With such evidence before us, we cannot doubt that the Court of Session was known to recognise the prin- ciple referred to, and that it acted upon that principle in the ca.se of Lanark as well as in the other cases, ^ Lord MoncreifF said of the two cases of Culross and Lanark that they just determined, with difficulty,^ that if the Presbytery mistake where the right is, the party found to be patron may retain the stipend, though another than the presentee becomes the minister.^ " They give no right^ whatever to the presentee, and are quite the reverse of holding that, where a presentation is sustained,^ this Court can interfere with the ecclesiastical proceedings of the Church^ in the ecclesiastical duty of induction.''^ ^ See Eeport in Morrieson's Dictionary, p. 9955, Patronage, No. 35. 2 The italics are Lord Moncreift's. L 146 Vindication of the Claim of Right. The case of Lady Forbes against M'William is another instance of a successful application by the legiti- mate patron for the stipend when a presentee has been inducted upon an illegal presentation through a mistake of the Presbytery. It is simply one of a series which proves the understanding at the Bar and on the Bench as to the appropriate remedy for such illegal action.^ The next example given is that in which the Court appears to have refused as incompetent a bill of advoca- tion, for the purpose of preventing the admission in the case of Culross. The words in the Claim of Bight are these : — " So farther, in the before-mentioned case of Culross, the Court refused " (as incompetent) " a bill of advocation presented to them by the patron for the purpose of staying the admission by the Presbytery of another than his presentee." It may appear to some an irrelevant thing to adduce in this connection the presenting of a bill of advocation, because the refusal of it does not necessarily involve a refusal to interdict ecclesiastical procedure, but only a refusal to take up an appeal on the merits. For advo- cation is understood to be a form for bringing up such an appeal. There is more than one answer to this objection. Considering the character of the interferences with ecclesiastical jurisdiction, which had taken place or ^ Morrieson's Dictionary, 9931. \ Bill of Advocation. 147 were threatened at the date of the Claim of Right, it was important to show that in no form that was attempted in the last century was such interference allowed by the Court. The form of advocation was the only form, in which the attempt was made during fifty years previously to 1749. But, secondly, how came it to be made in that form ? Why were the parties either in the Auchter- muchty or in the Culross case advised to try a bill of advocation ? Why was the form of suspension and interdict not thought of? Perhaps some lawyer might give a better probable answer to these questions than I can. It seems to me, however, that the framers of the Claim of Right were not satisfied that, at the date of these bills of advocation, the point was quite so settled as it now is, that an advocation can bring up a matter only by way of appeal upon the merits. For Lord Medwyn, in his elaborate opinion upon the Strathbogie reduction, adduced witnesses and quoted Lord Stair to prove that the Court of Session had in former times sustained advocations in cases where they could not deter- mine causes on the merits, but could only judge of the reasons for advocation ; and that on this principle advo- cations had come to them from all the criminal courts, and often even from the Justice-General, when the criminal court was in one person, on the footing that a matter was not competent to his jurisdiction. Lord 148 Vindication of the Claim of Right. Medwyn referred specially to the case of M'Lellan, who, on the 19th of December, 1680, obtained against the Bishop of Dunblane advocation of an ecclesiastical pro- cess, on the ground that the Lords had a general jurisdiction directive of all the ordinary judicatures, civil or ecclesiastical, and that, though they could not judge in the first instance, they were king's counsel in matters of law. Lord Fullerton said, with respect to this representation, that though, in the times referred to, advocations were allowed to the effect spoken of, such advocations from the criminal or other courts were now held to be invalid and incompetent ; so that the form of advocation was now confined to ajDpeals on the merits from an inferior to a superior court, and the ground of this change applied to the Ecclesiastical Courts. Still, the fact that such a reference was within Lord Medwyn's reach, and seemed to him relevant, is suffi- cient to justify the Church in recording emphatically the circumstance that, in the middle of the last century, the Court refused to sustain advocations from the ecclesias- tical courts, while there is no trace of interdicts being then substituted in their place. We come now to the important case of Dunse, which is referred to as follows : — " So likewise, in the case of Dunse, the Court would not interfere in regard to a conclusion to prohibit the Presbytery ' to moderate in a call at large, or settle any Case of Dunse. 149 other Tiian/ because ' that was interfering ivith the power of ordination, or internal policy of the Church, ivith which the Lords thought they had nothing to do.' " According to the report of Lord Monboddo, the fol- lowing passage occurs in the answers for the patron to the objections raised by the Presbytery against his action of declarator with a view to the establishment of his right of patronage and his claim to the stipend if any other person than his presentee should be inducted : — "As to the Church power of examination and ordination, nothing is here concluded; the process only relates to the patron's power to present, and the presentee's right to accept ; and whatever be the issue of it, it can never hinder the Church to reject the presentee upon trial, or if they please, they may, without giving him any trial, settle another ; but then that other will have no right to the stipend ; and this process, in so far as it warns the Presbytery of this, and lets them see what they are doing, ought to be reckoned a service to the Church." In this passage we have a clear intimation that the legal advisers of the patron not only did not aim at coercing the Presbytery as to induction to the pastoral office, but believed such coercion to be legally incompetent. In accordance with the view afterwards avowed and acted upon by the Crown lawyers in the case of Lanark, they carefully explained that their object was simply to pre- vent the appellants, or even the superior ecclesiastical 150 Vindication of the Claim of Right, judicatories, from taking upon themselves, on a mistaken understanding of the point of right, to confer the benefice on any other person than his presentee. The Lord Ordinary's judgment was as follows : — *' Repel the objections made to the pursuer's right, and to the person by him presented,^ on account of his not having taken the oaths before his first license, in respect of the answers ; and finds that the pursuer had in possessorio sufficient right to present, and that the right has not fallen to the Presbytery, tanquam jure devolute ; and decerns and declares."^ It appears from Lord Monboddo's report that, notwithstanding the limited aim avowed by the patron in his answers, one conclusion of the summons was, " That the Presbytery ought to be discharged to moderate a call at large, or settle any other man." Probably the intention was not that the Presbytery should be coerced, but that the prohibition should prevent any claim to the stipend. But, as the Lord Ordinary's judgment ended with the words "decerns and declares," the Presbytery seem, by the terms of their reclaiming petition, to have thought that it might embrace such a compliance with that conclusion of the summons as would encroach upon their independent jurisdiction. Accordingly, we find from the report in Morrieson's Dictionary that the Court were anxious to prevent such an inference. For, in adhering to the ^ These italics are in the Eeports. i Limitation to Civil Effects. 151 Lord Ordinary's interlocutor, they, according to that report, " found that the general words declares and decerns can go no further than the particulars deter- mined." These particulars were confined, as we have seen, to the validity of the presentation and to the ques- tion as to the "jus devolutuTn" and did not embrace at all the conclusion as to moderating in a call at large, nor even the conclusion as to stipend. The report shows that the object of the judgment was the same with that avowed by the patron — namely, to deter the Pres- bytery from inducting a person who would not have the stipend — the Court making it manifest by their language that they claimed no coercive jurisdiction. Lord Monboddo's report thoroughly explains the mean- ing of anything that might be obscure in the form of the others. For he says explicitly that there were two con- clusions of the declarator which the Lords would not meddle with. " The one was, that the stipend did belong to the patron till the presentee was settled. This the Lords did not think competent to be declared against the the Presbytery, who never could have any right to the stipend. The other was, that the Presbytery ought to be discharged to moderate a call at large or settle any other man ; because that was interfering with the i^ower of ordination, or the internal policy of the Church, with luhich the Lords thought they had nothing to do." Here, then, you have not merely a refusal to interfere with the 152 Vindication of the Claim of Right. peculiar functions and exclusive jurisdiction of the courts of the Church, but a refusal to entertain a conclusion in a summons which might possibly he interpreted to mean such interference, even though the party disclaimed the intention of it. Thus the advising lawyers and the Court were thoroughly agreed in maintaining the consti- tutional doctrine of the Claim of Right, and the thoroughly co-ordinate jurisdiction of the Ecclesiastical Courts.^ The last case in the series is that of Unst, and is the most decisive of all. The real facts illustrate its decisive- ness more fully than the statement of it in the Claim of Right does. The words of the statement are as follows : — " And so in the same manner in the case of Unst, where the party concluded to have the Presbytery ordained to proceed to the presentee's settlement, as well as to have the validity of the presentation and the right to the stipend declared, the Court limited their decree to the civil matters of the presentation and stipend." Lord Dundas, the patron, and his presentee certainly had good reason to complain of somewhat sharp practice on the part of the Presbytery, who rejected his presenta- tion, when the weather had prevented it (though issued long before) from reaching them till a few hours after the ^ Morrieson, 9911, and Brown's Supt., with Monboddo's Keport. N. B. — Morrieson reports that, among other things it was observed, that the declarator nowise aflfected the Presbytery's power of trying or admitting a minister, and was rather a favour to them, lest by mistake the minister settled should have no legal title to the benefice. Case of JJnst. 153 expiry of six months from the date of the vacancy, and proceeded to the induction of another person. An action of reduction and declarator was accordingly raised. Besides concluding for a declaration that Lord Dundas had exercised his right as patron within the time required by law, and that his presentation was valid and effectual, and for payment of the stipend to him as patron till his presentee shall be settled, it asked for reduction of the minutes of Presbytery, concluding that they should be reduced, and the settlement set aside in toto ; and that the Presbytery should be decerned and ordained to give due obedience to the said presentation, and to proceed in the settlement of the patron's presentee. The action came before Lord Eskgrove, as Lord Ordi- nary, with the whole of its conclusions. But we find from the report in Bell's Cases that the patron, " under- standing that the Presbytery meant to object to the competency of the conclusions in so far as they respected the reducing or setting aside the proceedings of the Presbytery, on the footing that the Court has no power to review the ^procedure of Church Courts," gave in a minute agreeing to depart from the rescissory conclusions, and that this being admitted, the cause proceeded on the declaratory parts of the libel. The statement in the Claim of Right does not found, as it might have done, on the departure from the rescis- sory conclusions, as if it involved an opinion by the Court 154 Vindication of the Claim of Might. that the objection to the competency was good. But I think it right to point out that when a demand is departed from, after an action is before the Court, because the other party objects to the competency, there is a strong presumption that there was a disposition on the part of the Court to sustain that objection. At any rate, the legal advisers of Lord Dundas were evidently not prepared to meet it, or to encounter the risk of defeat by it. They acted like their predecessors in the cases of Auchtermuchty, Lanark, and Dunse. The statement in the Claim, however, is more closely to th5 purpose than a reference to this concession of the party would have been, important as that concession is in the general argument. For the statement represents the party as having concluded to have the Presbytery ordained to proceed to the presentee's settlement, and the Court as having limited their decree to the validity of the presentation and the right to the stipend. The report in Morrieson's Dictionary bears out this repre- sentation in an indirect manner. For the only con- clusions which it records are these declaratory ones, "That the patron had exercised his right " within the time required by law ; and '' that the presentation granted by him in favour of Mr. Nicholson was valid and effectual," The reporter seems to have understood that all other conclusions had been departed from or rejected, and he gives the judgment as follows : — " The Lords repelled Two Declaratory Conclusions. 155 the defences, and found and declared in terms of the libel." He must have meant in terms of the libel restricted as he had represented it in the former part of his report. The libel, according to his language, contained no other conclusions, except those two declaratory ones. In reality, however, the libel originally contained what are called 'petitory conclusions, besides the declaratory ones. Some of these petitory conclusions were also rescissory conclusions — that is, they required the proceed- ings of the Presbytery to be reduced in toto. These, as we have seen from the other report, were departed from by the patron through the advice given to him. But there remained another petitory conclusion to which the Presbytery objected — namely, that they should be de- cerned and ordained to give due obedience to the said presentation, and to proceed in the settlement. This was clearly not declaratory. It was as much petitory as the reductive or rescissory conclusions. The Dean of Faculty in the Auchterarder case endeavoured to extract something declaratory out of it, but was forced to admit that it could not have any practical operation, consistently with an abandonment of the reductive or rescissory conclusions. I do not believe that lawyers will generally hold that it could be classed among the dechtratory conclusions. The author of the report in Morrieson's Dictionary did not include it among those adopted by the Court, while the full statement of the 15 6 Vindication of the Claim of Right. judgment as given by the Dean of Faculty himself, from Bell's Cases, is as follows : — " The Lords repel the defence, and find and declare in terms of the declaratory con- clusions of the libel." The petitory conclusion, that the Presbytery should be ordained to proceed, could not be carried out, if the previous induction were allowed to stand. But that i^etitory conclusion still remained in the libel after the rescissory ones had been departed from, and therefore the Court did exactly what the Claim of Right represents in declining to adopt it, and in limit- ing their decree to the civil matters of the j)resentation and stipend.^ An objection was raised to the view of legal precedent taken in that document, and by the minority in the Court of Session, on the ground that on each of two occasions, at former periods, the Court of Session had found it com- petent to put an authoritative arrest upon the procedure of a Presbytery towards filling up a vacant charge. It was said that they had done so once in the case of Auchtermuchty in 1734, and again in the case of Kil- tarlity in 1822. The reply by Lords MoncreifF and Jeffrey was that, in both instances, the Presbyteries were taking upon themselves to dispose of the civil question as to the validity of a patron's presentation, and were attempting to confer upon ministers a right to civil 1 Bell's Cases, p. 160 ; Morrieson, 9972. Objection as to Sist and Interdict. 157 emoluments, without regard to the Court of Session's authority in relation to that civil question. Persons who, like the Dean of Faculty Hope, the Lord President, and the majority of the judges in the Auchterarder case, did not see their way to recognise the distinction so lumin- ously exhibited by Lord Glenlee, between the civil question regarding the title to a patronage or the validity of a presentation, and the ecclesiastical question as to the mode of dealing with a presentation after it had been sustained, might honestly look upon those two instances as proving their conclusion. But the other members of the minority agreed with Lord Glenlee in holding that their predecessors had kept this distinction steadily in view, and had abstained from exercising authority in the settlement of ministers, except to the effect of either determining a right of patronage, with a view to the pos- session of stipend and other advantages, or of fixing that possession itself. In the case of Auchtermuchty, the Presbytery were manifestly assuming a right to disregard the presentation altogether, and were avowedly attempting to give the pastor they inducted a title to the stipend. The Solici- tor-General brought clearly out the fact, rather slurred over by the Dean of Faculty, of the refusal of the Pres- bytery to take steps upon the presentation having origin- ated in objections brought forward by the magistrates and other parishioners of Auchtermuchty, that the alleged 158 Vindication of the Claim of Right patron had not duly produced his titles. But, on what- ever ground the refusal was based, it was a refusal by them to act on the presentation at all. I do not think that an order from the Civil Court, prohibiting them from proceeding on the assumption of its invalidity, was an interference with their spiritual independence, when it was not followed up by any attempt to overturn the induc- tion to the pastoral charge. The Dean of Faculty said that they were censured by the Court for disobedience to the order. Mr. Whigham said that they apologised. But they might have guarded themselves against the censure or the necessity of the apology if they and the minister whose settlement they were forwarding had been prepared to disclaim any intention of claiming the civil emoluments, or at least of forestalling the patron's right to them. If they were not prepared to do this, and did not do so in the manner of their action, they could not reasonably complain of an order which, on the principle of Lord Glenlee*s judgment, we are entitled to suppose was simply against the assumption of civil right, and against the attempt to help the minister inducted towards the attainment of civil emoluments. The issuing of the order was afterwards found to have been incompetent, and there is no evidence to prove that, if the Presbytery could have shown that they aimed at nothing but the constitution of the pastoral relation, any coercive action against them would have been adopted by the Court. Lord Jeffrey following Lord Monhoddo. 159 Lord Jeffrey (in his opinion on the Lethendy case) declared that the history of this incident in the Auchter- muchty case made it a warning to the Court rather than an example to be followed. He added that the ground of the decision in the later case of Dunse, as reported by Lord Monboddo, proved the final conclusion of the Court in the last century to be, that they could give no orders as to the constituting of the pastoral relation, because that would be interfering with the power of ordination. As to the case of Kiltarlity in 1822, that date is rather too near the era of modern enlightenment and " explosion " of old ideas, to be accepted of as furnishing a proof of what was understood to be the legal principle for a hundred years after the passing of Queen Anne's Act. The Auchterarder judgment came only eighteen years afterwards. The case was that of an interim interdict against a Presbytery proceeding, upon a presen- tation by a Roman Catholic patron, until the question of its validity should be determined by the Civil Court. It was recalled, because the parties applying for it had no title to do so. It was held as competent on the sole ground that ''the question regarded the civil rights of patronage." The Court evidently meant the right of the Roman Catholic patron to present. It was against the Presbytery proceeding upon the assumption of vali- dity in the presentation. It required them to recall any act by which they had sustained it, and to give 160 Vindication of the Claim of Right. no more countenance to it. If the interdict had been persevered in, the Presbytery might either have simply obeyed it, or met it by resolving to proceed without regard to the presentation, and by disclaiming all recognition of it. Lord Jeffrey called attention to tlie fact that the Presbytery, in so far sustaining the presentation at first, had expressly reserved considera- tion of its validity till further advised, and that the interdict must be understood to have been only against their finally sustaining it. Neither the prohibition of the Court in 1734 nor that in 1822 ever came into such practical operation as to give opportunity for the thorough discussion of it ; so that even if either had involved more than Lords Mon- creiff and Jeffrey supposed, it could not possibly be a fair precedent for opposition to a rule of legal and judicial practice, which we have seen to be thoroughly supported by those instances in which, during the last century, it was really tested. The truth is, that the manner in which the subject affected conscientious principle in ministers and elders, was better understood by govern- ments and lawyers in former generations than it came to be afterwards. The growth of injurious tendencies in the country and the Church had, previously to the Disruption era, shaken the faith of public men in the readiness of the clergy to carry out unbending principle to its proper results. If judges and politicians had been The Lord President on the Cases. 161 as familiar with perseverance and endurance for con- science' sake as their remote predecessors were, they would have estimated better the thoughts and feelings prevalent in the Church before the Disruption; they would have seen farther into the matter they were dealing Avith ; they would have perceived the rocks against which the old statutes and the old decisions were intended to guard the vessel of the ecclesiastical constitu- tion; and they would have acted so as to prevent the Dis- ruption. The true explanation of the old principle of legal judgment in such cases as I have discussed, was the clear sense entertained of the necessity and fitness of that prin- ciple,forprotectingthe consciences of resolute Christian men, and for preserving harmony between Church and State. "Was any adequate answer given in the opinions of the judges in the majority, to the view taken of the old decisions by the minority ? The clearest and most decisive was that of the Lord President. On the one hand, he boldly asserted that his predecessors had judged erroneously in allowing that action by a Presbytery to the effect of inducting a pastor without legal claim to the stipend, could not be touched or reversed by civil authority. On the other hand, he disregarded any distinction between the Civil Court having the power of investigating the particulars of ecclesiastical procedure with a view to questions of civil emolument, and their M 1 G2 Vindication of the Claim of Eight. having the power of investigating them with a view to direct control over the Church Courts. He assumed, as matter of course, that the right of investigation, asserted in the last century for the one jDurpose, established a jrrisdiction that would include the other. He did not seem to think that there was any necessity to show authority for this inference — though confessedly it had never been acted upon, but had been expressly dis- claimed by his predecessors. He simply assumed maxims that were perhaps axiomatic in the view of English lawyers, and which, I have no doubt, commended his representation to the judges in the House of Lords. I admire much the manner in which he grasped the main difficulty in his way, and summarily disposed of it without attempting to raise minute questions about particular instances in the former practice, while acknowledging the tendency of that practice in a direction which he disapproved of. But it is not surely surprising that^ after studying the opinions of the minority, the Church rejected the Lord President's judgment — honest and straightforward as it was — and, adhering to old Scottish conceptions, embodied them in the Claim of Right. Most of the other judges in the majority, who referred specifically to the former cases, followed in the line of the Lord President — taking for granted that the asser- tion of jurisdiction at all in ecclesiastical cases for any purpose, implied the extent of jurisdiction contended for Lord G-illies and other Judges. 163 in the Auchterarder case. Some of them quoted cases affecting schoohnasters, and cases from the time of Charles the Second, both of which were manifestly inapplicable, and later instances of decisions against the right of Presbyteries to assume patronage, without respect at all to the difference between a total disregard of a patron's presentation and the rejection of a presentee after the moderation of a call. In general, they treated the distinction between an induction that would give a legal right to stipend and other civil advantages, and an induction which would only constitute a permanent pastoral relation, as if it had no more reality in Scotland than would be allowed to it in England. Some of them also did what the Lord President did not think it worth his while to do — they dwelt on the sist in the Auchter- arder case and on the interdict in the Kiltarlity case, as if these had established the whole extent of the jurisdic- tion which they now claimed for the Court of Session. There is one remarkable circumstance in the speech of Lord Gillies, proving that he felt Lord Monboddo's report of the Dunse case to be formidable. He quoted the terms of the reclaiming petition for the Presbytery of Dunse, and concluded that because it was refused Lord Monboddo's report must be wrong. The petition asked the Court to find in particular terms which it specified. It does not follow that because the Court refused to do so they did not find in terms consistent with Lord 164 Vindication of the Claim of Right. MoDboddo's report, or that his report of the grounds of their finding is incorrect. Lords Moncreiff and Jeffrey insisted on the authority of Lord Monboddo as sufficient to establish what occurred in the case. Lord Gillies, in proposing to get quit of his report, overlooked (what I think I have shown) that even the report in Morrieson's Dictionary leads by clear inference to the same conclusion.^ If the present work were written by a lawyer, he would probably have set before his readers, in the first place, his reasons for holding that the interpretation of Acts of Parliament by the authors of the Claim of Eight is the correct one, and would have postponed his account of decisions in the last century to a subsequent section. But though I think that the General Assembly was obliged to interpret statutes and common law for its own guidance in its own department, I will not pretend per- sonally to interpret them. I only profess to set before my readers the interpretations given by thoroughly com- petent parties, and their result in the Claim of Right. I ask persons interested in the matter to judge between these interpretations and the opposite ones. The con- stitutional question involved is, I think, of far too great magnitude to be held conclusively settled in the minds of Scotchmen by the opinions of a mere majority of judges, or even by the judgment of two or three English ^ Robertson's Report. Interpretation of Acts. 165 lawyers of the highest eminence in the House of Lords. I have therefore thought it expedient to exhibit, first of all, the amount of the constitutional doctrine contended for by the minority in the Court of Session, and the support given to it by former practice, before calling attention to the paragraphs of the Claim of Right which relate to Acts of Parliament. 5. Argument from Acts of Parliament. Act 1690, chap. 5. The fifth paragraph enumerates six particulars of Parliamentary legislation, by which the doctrine and principle represented in the previous paragraphs as essential and fundamental, and the government and exclusive jurisdiction flowing therefrom had been recog- nised, ratified, and confirmed. The first is the ratification of the Confession of Faith itself in 1690, chap. 5, which ratification was regarded by Lord Moncreiff as sanctioning, the Free Church sense, and the sense admitted by the Duke of Argyll, the declaration that there is no other Head of the Church but the Lord Jesus Christ, and that He, as Head of the Church, has appointed a government therein, in the hands of Church-officers, distinct from the civil magistrate. The Acts of 1567, chap. 6 and 7. The second is the Act of 1567, chap. 7, which " enacted and declared that the examination and 166 Vindication of the Claim of Right. admission of ministers within this reahn be only in the power of the Kirk now openly and publicly professed within the same," and that, if the presentee of a patron should be " refused to be admitted by the inferior ecclesiastical authorities it should be lawful for the patron to appeal to the General Assembly of the whole realm, by whom the cause being decided shall take end as they decern and declare." Lord Glenlee understood this enactment to mean exactly what it said. There is no qualification in it allowing the Civil Court to control the Assembly in the matter, or to interfere with its judgment. He thought that it manifestly settled that an absolutely final judgment as to the admission or rejection of a presentee was vested in the General Assembly by the Legislature. Lord Moncreitf read the statute in the same simple manner, and held that, according to it, such a cause was absolutely to take end, as. the General Assembly decern and declare — the Assembly being recognised as a supreme independent court for the whole realm with respect to ecclesiastical affairs. With reference to the idea that statesmen would at all times have been too sensible of danger in entrusting such absolutely supreme power to an ecclesiastical body, and that the Scottish Parliament could not have intended the Act of 1507 to bear this plain interpretation, a remark made by Lord Jeffrey, speaking on the Stewarton case, goes directly to the The Assemblies National and Representative. 167 point. He says that, at that date, there was no jealousy of the Protestant Church or of its Assembly, because the whole Protestant laity were entirely at one with the Assembly in opposition to the common enemy. In fact, the whole community was represented in the Assembly, and it held as commanding a place for ecclesiastical affairs as the Parliament did for civil matters. However slow, then, modern legislators might be to grant the supreme power contended for to the Assembly of a modern church, there is no good reason for supposing that the Parliament in 1567 did not intend what the words of their enactment signify. Act 1569, chap. 12. The third particular of legislation appealed to is the Act 1567, chap. 12, which Act, as well as the previously mentioned one, was confirmed in 1581, and again in 1592, and again in 1690. Lord Moncreiff describes this Act as the very first in which the Reformed Church derived anything from the State, and as proceeding in the narrative that *' the King, with advice of Parliament, has declared and granted jurisdiction to the said Kirk, which consists and stands in preaching," &c. ; '* and declares that there is nae other face of Kirk, nor other face of religion than is presently, by the favour of God, established in this realm ; and that there be nae other jurisdiction ecclesiastical acknowledged within 168 Vindication of the Claim of Might. this realm other than that which is and shall be within the same Kirk, or that which flows therefrom concerning the premises." He remarked that this Act was held to be declaratory by Sir George M'Kenzie, and said that to his (Lord Moncreiff's) mind it, in very distinct terms, declared the present existence of a general jurisdiction ecclesiastical in the Kirk. He showed that before 1567, though the sanction of Parliament had been given to the Reformed religion, the government of the Reformed Church had not been settled by any Parliamentary legislation, but that the Church had been organised on an independent footing upon the principles maintained by her ministers, elders, and members. In 1542 an Act of Parliament was passed for allowing the Scriptures to be read in the vulgar tongue, and there was then a body of men voluntarily associated, who called themselves '' the congregation of Jesus Christ within Scotland." Parishes for the Reformed ministers were at that period arranged by the authority of the Church alone. In 1560 a Confession of Faith was ratified by a convention of the Scottish Estates, as a Confession professed by the Protestants within the realm of Scot- land. Lord Moncreitf pointed out that this Act of 1560 plainly acknowledged a Church as already constituted holding this confession, but that it created and exacted nothing, and conferred no powers. In the same year the jurisdiction of the Poj)e was repudiated. But the The Church standing in its own strength. 169 convention did no more. They had recognised the body of the Protestant Church as existing in the land. But they substituted no power in the place of the Pope. The whole proceedings assumed that there was already a government in the Church. " The Church," said Lord MoncreifF, "was left to stand on its own basis, and to work to its sacred objects by its own strength." In this con- nection he quoted the Act 1690, chap. 5, in which it is admitted, as a ground for establishing Presbyterian government, that the people of Scotland had originally "reformed from Popery by presbyters." He went on to notice the fact that the first General Assembly was held in 1560 by no other authority than that of the Church herself. It met fourteen times during seven years afterwards, and was never regarded as illegal, but was expressly recognised as a lawful institution in the land by the Parliament of 1567. Thus, the Reformed Church of Scotland was not a creation of the State. '' It had grown up," said Lord MoncreifF, " upon the foundation of the original congregation of the Protes- tant Reformers. It professed to be founded on the Word of God, and to acknowledge no spiritual head but the Divine Author of our religion; and it worked to its objects by the powers which it believed to be derived from that source." He next proceeded, by numerous quotations from the proceedings of the Assemblies, to prove that before 1567 they had largely exercised all the 170 Vindication of the Claim of Right. powers of discipline and order claimed by the modern church in the pleadings of the Auchterarder and Stewar- ton cases. The Parliament of 1567 did not repudiate any action of the Assembly during the seven years previous to its meeting. It did not create or erect any Church. Not a vestige of such a thing is to be found in its Acts. It simply announces that the King, with advice of the Regent and the Parliament, has declared and declares the foresaid Kirk to be the only true and holy Kirk of Jesus Christ within this realm." Lord Moncreiff showed, further, that in all the Acts of this Parliament the leading points in the constitution of the Church are assumed as already existing, without specific parliamentary enactment; and he observed that, if any restriction were placed by the Legislature upon the powers of the Church, such restriction must be found in specific provisions, and that the opposite view of allowing nothing to the Church for which a specific statutory provision cannot be found, is incompatible with the true history and nature of the case, as well as with the under- standing evinced by nearly two centuries of practical experience. He then adverted to the terms of the Act 1567, chap. 12, and the authority of Sir George M'Kenzie, for the construction which represents the Legislature as having first declared the existence of the ecclesiastical jurisdiction, and then granted it because the declaration Preaching,