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THE 
 
 SCOTTISH CHURCH QUESTION, 
 
 BY THE 
 
 REV. ADOLPHUS SYDOW, 
 
 M 
 
 MINISTER OF THE UNITED EVANGELICAL CHURCH OF PRUSSIA, 
 
 AND CHAPLAIN TO HIS MAJESTY'S COURT ANJD 
 
 GARRISON AT POTSDAM. 
 
 LONDON : 
 JAMES NISBET AND CO., BERNERS STREET. 
 
 1845. 
 

 MACINTOSH, PRINTER, 
 GREAT NEW-STREET, LONDON. 
 
PREFACE. 
 
 IN offering the following pages to the public, the writer 
 would preface them with only a few words. 
 
 The interest he takes in the important question, which 
 he is about to examine, is a universal Protestant one. He 
 considers that the relation between Church and State, 
 which has arisen out of the Reformation in the various 
 countries in which the Reformed Church is established, is 
 still far from satisfying the claims which the Church of 
 Christ on earth is bound by the Word of God to assert for 
 her unfettered efficacy in providing for the spiritual welfare 
 of the souls intrusted to her. 
 
 He considers these claims to be as widely different from 
 those of the Church of Rome as the headship of Christ 
 himself over his Catholic spiritual kingdom is different from 
 that of his supposed Vicar on earth. 
 
 On this account they have, on the one hand, the higher 
 authority and purer ends, and, on the other, they do not, if 
 rightly understood, encroach upon the due powers and 
 privileges which are given by God to the civil magistrate. 
 
 The events which have happened in the Scottish Church 
 present, in the writer's opinion, most important and 
 instructive objects of contemplation on this point to the 
 Churchmen and Statesmen of Protestant Europe: and as 
 he is desirous of doing his humble part to serve the common 
 Protestant cause by spreading a knowledge of these events, 
 to many of which he has been fortunate enough to be an 
 eye-witness, the writer ventures to offer to the English 
 
IV 
 
 PREFACE. 
 
 public this comprehensive and critical statement of the 
 whole transaction. 
 
 He has not the presumption of deeming his judgment 
 infallible, but rather the wish of assisting his kind reader 
 to form his own conclusion, for which purpose he has 
 endeavoured to omit no fact that has any important 
 bearing on the subject. 
 
 Although he admits that many native writers have treated 
 individual parts of this subject more powerfully than he 
 will be able to do, he has thought a detailed repre- 
 sentation of the whole matter was a want still to be 
 supplied. 
 
 He begs to thank his Scottish friends on both sides of 
 the question for the information which he has been favoured 
 with, either in conversation or in pamphlets, and of which 
 they will see that he has made ample use in the following 
 pages. 
 
 This treatise was written in London, in the summer 
 of last year (1843), and this will explain some passages 
 referring to dates and numbers. 
 
 The quotations from different Acts of Parliament are 
 taken from the folio edition, entitled " The Acts of the 
 Parliaments of Scotland. Printed by command of His 
 Majesty King George the Third, in pursuance of an 
 Address of the House of Commons of Great Britain. 
 1814." 
 
 The writer has to conclude these prefatory words with 
 the most ardent wish that the truth, justice, and power of 
 the cause he pleads before the public may overcome all the 
 deficiencies of its representation in a language that is 
 not his own. 
 
 THE AUTHOR. 
 
 
 
 Potsdam, September 20, 1844. 
 
INTRODUCTORY REMARKS. 
 
 IT is not without feelings of considerable embarrassment 
 and diffidence that the author of the present treatise 
 ventures to offer his views on a subject which is, in his 
 humble opinion, one of the most important ecclesiastical 
 events that have occurred since the Reformation. Not- 
 withstanding the opportunities of information which he 
 has enjoyed, and the careful attention he has bestowed 
 on the subject, he cannot help feeling overwhelmed by 
 the weight of the intricate question he is about to 
 examine. 
 
 Ever since the House of Lords finally confirmed the 
 decision of the Supreme Civil Court of Scotland, in the 
 first celebrated Auchterarder case, the Church question 
 of that country has been assuming a new aspect. It has 
 now long ceased to be a mere question of Church admi- 
 nistration, as to the relations which patron, presentee, 
 people, and Presbytery, ought to bear to each other in 
 the appointment of a minister. As long as the question 
 was merely this, its settlement would have been com- 
 paratively easy. But it is now no longer this alone. 
 From a simple point of Church administration, its sphere 
 has grown to a question of constitutional principles, the 
 settlement of which cannot be hoped, even from the wisest 
 and most gifted of the administrators of the law. The 
 only tribunal before which the question could now be 
 
VI 
 
 INTRODUCTORY REMARKS. 
 
 peaceably solved, and the deep wounds healed that have 
 been inflicted upon Scotland, is that of the enlightened 
 legislator, the wise and high-minded Christian statesman. 
 
 The two great powers that God has placed over the 
 affairs of men, the Church and State, each of which, in its 
 own province, lays claim to the whole man, with all his 
 faithful obedience and affection, have appeared at issue 
 in the course of this struggle, with respect to the bounds 
 of their respective provinces. The assumption of the State, 
 that in all such disputes the ultimate decision rests, and 
 must rest with itself, would probably receive an overwhelm- 
 ing recognition in all Protestant countries in which there 
 exists an Established Church. Nor would this be received 
 as more than an axiom among the generality of Protestant 
 statesmen and lawyers. A Romanism exalted the Church 
 as far above the State as the Divine is exalted above the 
 human, so it has been supposed, that with regard to eccle- 
 siastical polity, the peculiar effect of the Reformation has 
 been to restore to the State its absolute supremacy " over 
 all persons and in all causes." But in this it may be found 
 that one form of falsehood has been exchanged for another, 
 and that the latter evil is of no less magnitude than the 
 former. Men, in general, are apt to make a virtue of neces- 
 sity, and to assume that what exists de facto, ought also to 
 exist de jure; and thus, because the supremacy both in Church 
 and State is found united, in an ambiguous and indefinite 
 manner, in the persons of Protestant princes, a similar 
 ambiguity has been admitted into the theory of their 
 union. This ambiguity is already beginning to work most 
 fatally in many Protestant states, and recent experience, 
 both in Germany and England, ' teaches us, that it is 
 weakening Protestantism, and must weaken it, in propor- 
 tion as it is cherished and fostered. It is the author's firm 
 opinion, that the contradictions and conflicts of interest, 
 
INTRODUCTORY REMARKS. Vll 
 
 caused by the ambiguous definition of the limits of the two 
 powers of Church and State, contain within themselves the 
 elements of very unhappy future discord ; and if he may be 
 allowed to look forward into time, he would confidently 
 predict that they will terminate in very serious collisions at 
 no very distant period. 
 
 However this may be, in Scotland matters have stood, 
 and do stand, in a position quite different from that in 
 other Protestant countries : different, not as has been so 
 frequently and unfair!) objected, because of the wilful 
 obstinacy of a Puritanical zealotism ; not because of a 
 crafty agitation striving to use, for foreign and selfish 
 purposes, the deep love which every Scotchman entertains 
 for his Church; nor because of the systematic operation 
 of an ambitious and power-loving clergy ; but different, 
 because of statute laws and liberties of the Church, 
 acknowledged by the State itself. Scotland is that spot 
 on earth where Providence has introduced into history 
 the germs of sound principles in the relations of Church 
 and State, and the English Government has received from 
 the hand of God, the honour and the conditions to give free 
 action to these principles. The spirit of the Scotch Church 
 which has come forth out of all its conflicts since the 
 Reformation, one and the same, uncoerced and untram- 
 melled, is no vague unknown thing against which the State 
 has always suspiciously to be on its guard ; on the contrary, 
 it is plain and intelligible to every one acquainted with her 
 history. There, is nothing in this spirit that would 
 prevent a Government from exercising all just and be- 
 coming authority, and the movement in the Scottish Church 
 about the year 1834 was in reality not a movement against 
 the State, but a movement within her own bcdy. The 
 re-aroused spirit of the Church was striving to defend her 
 against the prejudicial effects of the so-called Moderatism 
 
Vlll 
 
 INTRODUCTORY REMARKS. 
 
 within her. The fact that fundamental questions, 
 regarding the respective position of Church and State 
 to each other, have since arisen, is owing to the mis- 
 understanding and unjust suspicions of the civil authorities 
 themselves. The Scotch Church has in her constitution a 
 clearly defined position as regards the State, which she, as 
 long as she will remain an Establishment, for her part would 
 have no right to alter, and which, in fact, she did not feel 
 tempted to alter in the year 1834, but on the other hand, 
 she would scarcely allow the same to be altered by mere 
 pressure from without. This spirit of the Scottish Church 
 plainly put forth by her recognised standards, and again 
 preserving these standards with watchful care and zeal, 
 clear and effective in organization and discipline beyond 
 anything the author has seen in other Protestant commu- 
 nions penetrating into the inmost core of the national 
 life and character is that right of the Church which is 
 recognised in the pages of history and legalised by statu- 
 tory law. From the date of the union of both kingdoms 
 up to the present time it had never been openly declared 
 by the State that this spirit is inconsistent with the 
 essential conditions of an Establishment, nor is this really 
 the case if the matter be rightly understood. This decla- 
 ration, however, having been 'once authoritatively pro- 
 nounced, and the Legislature pertinaciously denying, or at 
 least delaying, any measure of reconciliation, the Church of 
 Scotland has been left no alternative but to determine whether 
 she would give up herself or her established connexion with 
 the State. The Church has. under existing circumstances, 
 found herself compelled to adopt the latter course ; freely 
 and honourably she has restored to the State the "bene- 
 factions she had received from it, as soon as she found 
 that under the conditions enjoined on her she 
 could no longer serve the State as an Establish- 
 
INTRODUCTORY REMARKS. IX 
 
 ment, she has abandoned the advantages of a British 
 Establishment for the protection of a British tole- 
 ration ; but before taking this step she has done all 
 she could to avert it by commissions) petitions, protests, 
 declarations, appeals, claims of right, addresses, memorials, 
 statements, remonstrances, &c. ; she has appealed from the 
 Court of Session to the Upper House, from the decision of 
 the Upper House to the Legislature ; and at last, when she 
 found no hearing, she has appealed to the last tribunal, 
 above which stands only the everlasting holy Judge himself, 
 she has appealed to the conscience of the Church. Her 
 course on the 18th of May of the present year (1843) was 
 in execution of the bidding of this conscience, which she 
 has obeyed, and, in doing so, has made heavy sacrifices. 
 Scotland's people and Scotland's strength are with the 
 Church of its ancestors and martyrs. The author does not 
 pretend to be a prophet, but is content to await God's 
 decision in the issue. He is content to leave the remaining 
 portion of the Establishment to prove itself, by its spiritual 
 efficacy, to the Church feeling of the Scottish people, to be 
 the veritable Church of their ancestors ; and if it can do 
 this, by this very act to cite the Seceders as grievous sinners 
 before the bar of history and their country. 
 
 If, however, the Free Protesting Church of Scotland 
 should prove in reality to be the Church of the nation, and 
 it is the author's decided opinion that she will do so; and if 
 the present Establishment should prove to be merely the 
 sediment remaining after the process of internal fermenta- 
 tion, then the Secessionists will appear the conscientious 
 supporters of principles, the hostility to which posterity 
 will never be able to comprehend, principles that deter- 
 mine the form of the future Protestant world, and of 
 which the free and clear development in the national 
 
X INTRODUCTORY REMARKS. 
 
 life can, in the author's opinion, prove alike to Church 
 and State the harbinger of health and peace. 
 
 Believing, as the author does, that this question of the 
 Church of Scotland must extend, both on account of the 
 principles involved in it, and through its inevitable conse- 
 quences, beyond the limits of the present time and beyond 
 the boundaries of Scotland, how should he feel other 
 than diffident, when he considers the magnitude of the 
 task he has undertaken? These principles, so simple in 
 themselves, run in their consequences through a long series 
 of intricate documents, cases of law, interpretations, events 
 and actions, like the noble metal that is bound up with the 
 mineral of ignoble worth. These principles are the hidden 
 spiritual powers, to the clear comprehension of which even 
 the leaders on both sides have only been brought by 
 degrees. It seems, then, almost presumptuous in a 
 stranger, necessarily less familiar than many native authors 
 with Scotland's history, character, and law, to hope that he 
 can clearly distinguish, and rightly decide in a matter 
 respecting which the wisest on both sides differ. After 
 having, however, as he humbly hopes, carefully completed 
 the work of investigation, the author would beg to enounce 
 a decided, though unpretending opinion; and if he has 
 allowed himself to anticipate, in his previous remarks, 
 the results of that investigation; if, after weighing right 
 and wrong, as each may be found on the one side or on 
 the other, he does not hesitate to declare himself decidedly 
 on the side of the " Free Protesting Church of Scotland," 
 he trusts that this will not be attributed to an obstinate 
 partisanship, but to his desire honestly, freely, and openly 
 to pronounce his opinions, in order that his kind reader 
 may entertain no doubt of his intention and meaning. 
 
 It is by no means the magnitude and difficulty of the 
 
 
INTRODUCTORY REMARKS. XI 
 
 subject alone that fills the author with apprehension, 
 but also the form in which best to express his views. He 
 wishes to be as brief as possible. Even in the domain of 
 pure reasoning, it is no common art to exercise a brevity, 
 compatible at the same time with the best comment on the 
 matter on hand ; the difficulty, however, is much increased 
 when the decision is intertwined with innumerable in- 
 tricacies of historical and legal facts. In such cases 
 brevity too often takes the form of shallowness, assump- 
 tion, and avoidance of the point in debate. The author 
 begs once for all to declare, that he has at no moment 
 forgotten his responsibility in weighing and criticising 
 impartially the arguments of the question ; and he trusts 
 that he has never lost sight of the respect due to the noble 
 and sincere men of both sides, and that, as far as the domain 
 of reasoning and history extends, he feels too great a love for 
 truth to shrink from the critical remarks of those who 
 possess a greater discernment and knowledge of facts than 
 he does. 
 
 If anything could tend to remove the author's diffidence 
 in his ability of discussing a subject of this magnitude, it 
 would be the fact that he is personally unconnected with 
 the dispute. To him who stands in the cloud, neither the 
 cloud as a whole, nor the variety of its illumination by the 
 rays of the sun, are so visible as to him who directs his 
 eyes to it from a point without it. All party spirit stands 
 IN the cloud, and the stranger who is not necessarily 
 dragged by his connexions into one or the other party, is on 
 this account capable of a less contracted view. He must 
 doubtless possess, over and above this independence of 
 party, sufficient power of sight and faithfulness of will, 
 calmly and earnestly to contemplate the subject of his 
 observation. With regard to the former point, the author 
 may justly feel ample room for diffidence. With regard to 
 
Xll 
 
 INTRODUCTORY REMARKS. 
 
 the latter, he trusts he will be excused for concluding these 
 introductory remarks with a few words on it. 
 
 As long as the author was in these kingdoms, he took the 
 deepest interest in the Scottish Church question. He sided 
 from the first with that party with whom he thought the right 
 to reside, hoth rationally and spiritually; with the men of 
 that side he has in spirit suffered and striven ; but it was not 
 until a few months ago * that he could come to a clear con- 
 viction as to whether or not they were legally and formally 
 right. The whole matter appeared to him to be a deeply 
 tragical act in the drama of history, wherein that higher power 
 which presides over the destiny of our race, had permitted 
 the noble harbinger of a better future to appear, and then 
 in consequence of a comparatively small fault to succumb, 
 because that future was forbidden to be anticipated. The 
 author felt, that had he been a member of the Scottish 
 Church, he should have been a decided Non-intrusionist ; 
 and yet found no difficulty in believing, at the same time, 
 that had he had the honour of being a member of the 
 British Government, he should probably have acted as the 
 Ministers of the State have done. Since that time he has 
 been forced to abandon this view of the matter, and 
 ventures, in the following observations, to realize the 
 position that, all things taken together, the Free Pro- 
 testing Church of Scotland is legally as well as actually in 
 the right. 
 
 * These words were written in July, 1843. 
 
THE SCOTTISH CHURCH QUESTION 
 
 THE PASSING OF THE VETO ACT CONSIDERED IN ITS CON- 
 NEXION WITH THE ECCLESIASTICAL STATE OF SCOTLAND 
 AT THE TIME, AND WITH PRECEDING AND SUBSEQUENT 
 EVENTS. 
 
 ON the 18th of May, of this present year,* 500 of the most 
 zealous and influential clergy of the Church of Scotland 
 thought it their duty to separate themselves from the 
 Establishment, relinquishing office and income, house and 
 home. More than 600 congregations, either chiefly or 
 unanimously ; more than 2,000 ruling elders ; f above 200 
 youthful and hopeful probationers cast in their lot with 
 them, and were followed, if not by all, at least by most 
 of the Scotch missionaries abroad. On that day the 
 Church of Scotland suffered a rent, which, extending 
 beyond Church matters, has disturbed the social family 
 and even the political relations of the land, and still 
 threatens to shake them to an extent which no human 
 eye can foresee- 
 All this calamity may be traced to an apparently 
 insignificant cause, the celebrated enactment passed by the 
 * 1843. f Lay office-bearers of the Scotch Church. 
 
 B 
 
SCOTTISH CHURCH 
 
 General Assembly in May, 1834, and made a standing 
 law of the Church in May, 1835, generally called the Veto 
 Act, or the Veto-law. This fateful Act is as follows : 
 
 "Edinburgh, May 29, 1835. 
 
 " The General Assembly declare, that it is a fundamental 
 law of their Church, that no pastor shall he intruded on 
 any congregation contrary to the will of the people ; and in 
 order that this principle may be carried into full effect, 
 the General Assembly, with the consent of a majority 
 of the Presbyteries of this Church, do declare, enact and 
 ordain, That it shall be an instruction to Presbyteries, 
 that if, at the moderating in a call to a vacant pastoral 
 charge, the major part of the male heads of families, 
 members of the vacant congregation, and in full com- 
 munion with the Church, shall disapprove of the person 
 in whose favour the call is proposed to be moderated in, 
 such disapproval shall be deemed sufficient ground for 
 the Presbytery rejecting such person, and that he shall 
 be rejected accordingly, and due notice thereof forthwith 
 given to all concerned ; but that, if the major part of 
 the said heads of families shall not disapprove of 
 such person to be their pastor, the Presbytery shall 
 proceed with the settlement according to the rules of 
 the Church : 
 
 " And farther declare, that no person shall be held to be 
 entitled to disapprove as aforesaid, who shall refuse, if 
 required, solemnly to declare in presence of the Pres- 
 bytery, that he is actuated by no factious or malicious 
 motive, but solely by a conscientious regard to the 
 spiritual interests of himself or the congregation." 
 
 
 
 In the few lines of this enactment, reasonable as it seems, 
 and unpregnant of any violent consequences, slumbered the 
 
 
 
QUESTION EXAMINED. 3 
 
 mighty storm which since that time has broken over the 
 land and aroused the soundest sleepers. 
 
 It will be the author's first duty to give a brief outline 
 of the causes which at that time called forth this docu- 
 ment, not only to remove the imputation of unseasonable- 
 ness and self-will so often cast upon it, but also to place 
 in a clear point of view its connexion with preceding and 
 subsequent events. 
 
 It may be necessary in the course of the inquiry to go 
 back even as far as the time of the Reformation in Scotland, 
 but at present it will suffice if the writer commences with 
 the moment when England and Scotland entered into 
 political union, and when that Church of Scotland, which 
 the Crown and Government of Great Britain have now 
 to deal with, received a fixed and conclusive form on the 
 faith of solemn treaties. 
 
 It was in 1690, after many a bloody fight for those 
 objects, which a Scotchman holds dearer than life, and of 
 which the rights and liberties of the Church of his fathers 
 are to him the highest, that prelacy and the supremacy 
 of the State in spiritual matters were solemnly overthrown, 
 and the Presbyterian Church, with all her doctrines, insti- 
 tutions, and privileges, as. granted to her in the Revolution 
 Settlement, was declared once more the Established Church 
 of the realm. The Scotch nation, decidedly disinclined as j 
 it was to the pretendency of the Stuarts, and as decidedly \ 
 favourable to the Protestant succession, consented to the I 
 negotiations for a political union with England, under this | 
 one preliminary condition, that every provision of such 
 negotiations should leave its Church intact; nay more, that 
 before anything else should be decided, the Church should 
 be at once, and without any reserve, recognised as she then 
 existed according to the provisions of the Revolution 
 
 B 2 
 
X 
 
 4 SCOTTISH CHURCH 
 
 Settlement. This recognition was made in the Act of 
 Security, on the faith of which the two kingdoms were 
 united in 1707 by the well-known Treaty of Union. 
 
 In the above-mentioned Revolution Settlement, all pa- 
 tronage was once for all abolished. It is well known to 
 
 every reader of Scotch Church history, that out of all the 
 parishes of Scotland, amounting to about a thousand, 
 scarcely one-fourth part had really lawful patrons if they 
 had been put to justify their title by the old maxim of the 
 canonists " Patronum faciunt dos, sedificatis, fundus."* 
 The remaining three-fourths had been by violence or fraud 
 conferred on patrons by the Scotch Crown, taken back 
 again by Parliament, conferred anew by Crown and Par- 
 liament together; once more resumed by the victorious 
 Church of the nation, until at length, jn 1690, all patronage 
 was lawfully abolished, and compensation made both to 
 those whose right was founded on injustice, and those 
 whose right rested on justice. The plantation of churches 
 reverted to the Church herself in the following manner: 
 In a vacant parish the elders and heritors presented 
 the candidate ; the rest of the congregation approved 
 of him : the Presbytery then examined, ordained, and 
 inducted. The rights of all three parties, however, were 
 real, not merely apparent, and without the agreement of all 
 three no one could become a lawful minister of the parish.f 
 A remarkable result of this is, in the first place, that 
 in the Church of Scotland all ministers are stipendiaries, , 
 and that a benefice in Scotland is quite another thing from 
 a living in England. In Scotland the endowment of a 
 
 * A patron is constituted by endowing a church, building a Church, 
 giving a site for it/- 
 
 f This will be further considered when' the author comes to investi- 
 gate more nearly this document with relation to the rights of con- 
 gregations. 
 
 s * J > 
 
 ;' +*^ 
 
 aZz -/ 
 
QUESTION EXAMINED. 5 
 
 pastoral office, guaranteed by the State, is necessarily con- 
 nected with the actual duty in the person of the man 
 whom the Church lawfully appoints as labourer in that 
 place; and a non-resident minister is something un- 
 heard of. 
 
 And, in the second place, the Church of Scotland only 
 ordains to duty in respect to a fixed spot, so that no one 
 ran be admitted to ordination without at the same time 
 undertaking active duty in the Church. There are no 
 " holy orders " of absolute and indelible character. 
 
 It is important to keep these considerations steadily in 
 view during the following investigation, inasmuch as the 
 oversight of them has proved a chief cause of the misun- 
 derstanding in England respecting the Scotch Church 
 question. 
 
 It is a peculiar feature in the character of the Church 
 of Scotland, that she has always looked on patronage with 
 much mistrust and dislike. Contests respecting patronage 
 have been mixed up with all her contests for existence; 
 and all her secessions may, like the last, be referred ulti- 
 mately to the same cause. The reformation in Scotland 
 proceeded from within and from below, whereas in England 
 it proceeded from without and from above. This has 
 exercised no inconsiderable influence on the character of 
 the two Churches; and thus since that time the Scotch 
 have regarded the patron only as the instrument in the 
 hand of a State, hostile to their Church for centuries, to 
 aid it in re-introducing Romanism, or, what they consider 
 nearly the same, Laudian Episcopalianism, and to assist it 
 in destroying Presbyterianism, which they hold to be the 
 only form of Church government conformable to the 
 Scriptures. It may be that until recently these suspicions 
 against lay-patronage had abated ; it may be that the per- 
 sonal qualities and honourable conduct of the patrons had 
 
SCOTTISH CHURCH 
 
 mainly removed the antipathy to patronage ; still the fact 
 remained that most^ of the jatrons jwere Episcopalians.^ 
 Now, the more decided Episcopalian patrons are, the less 
 sympathy can they have with their Presbyterian Churches; 
 and if not decided, they stand necessarily in the equivocal 
 position of indifferents to ecclesiastical matters, which 
 furnishes little security for the due exercise of the right of 
 patronage. 
 
 The Scotch think that the right of patronage should, 
 at least, be connected with membership of their Church ; 
 and that a difference of belief in the patron should, ipso 
 facto, do away with his right; as in England, even, the 
 Sovereign holds his crown, and with it the right of nomi- 
 nating bishops, on condition of his being a member of the 
 Church of England. At any rate, they think they are 
 right in guarding their Church by all lawful means against 
 any influence of patronage which might prove dangerous to 
 her spiritual welfare. 
 
 The conception of Christianity entertained by the Scotch 
 mind is that which has been called Puritanism, because its 
 fundamental principle is to keep the Church pure from 
 everything which is not expressly and directly founded on 
 the Word of God. 
 
 Thus, the Scotch Church, in her peculiar Puritanical 
 character, presents to us one of those vast developments 
 of Christianity which, in the course of time, have mani- 
 fested themselves in the shape of the various Churches of 
 the different nations and ages. Such vast developments, 
 we may be sure, come not by chance, nor by human sin, 
 but according to the will of a ruling Providence, educating 
 nations and individuals in pursuance of its own inscrutable 
 design, and in respect to their peculiar religious capacities 
 and wants. A higher view recognises, perhaps, in none of 
 them the perfect stature which Christianity strives to attain. 
 
 
QUESTION EXAMINED. 7 
 
 That is to say, no individual Church on earth may presume 
 to identify itself with the Church itself; yet, it must be 
 acknowledged, that under these various forms alone Chris- 
 tianity pours out its fulness and its powers amongst our 
 race ; and that, notwithstanding their shortcomings, (con- 
 sidered in the absolute,) the individual branches of the one 
 Christian Church cannot but be relatively justified, and 
 looked on as the means through which the different nations, 
 individuals, and ages, have their participation in truth and 
 salvation, and their communion with God. 
 
 In each of these various forms which Christianity 
 assumes, certain peculiar fundamental principles stand 
 prominent, which, like crystalizing powers, impart to all 
 the constituent elements of a Church, such as doctrine, 
 government, discipline, form of worship, etc., a peculiar 
 character, and fix the precise nature of this particular 
 Christian community. These organizing principles may 
 be of different value, and, in consequence, the particular 
 Churches may differ widely in comprehensiveness, extent, 
 purity, power, and duration. But as long as these leading 
 principles have life, so long the Church, built up on them, 
 lives also*; and vice versa, no Church has ever retained its 
 vitality after having lost the spirit of her fundamental 
 principles. Thus, by calling on a Church to surrender 
 these principles, you call on her to commit suicide, which 
 she has no more right to do than an individual. The 
 destiny of mortality, indeed, must and will happen to her, 
 as to every individual, but it must happen, it must not be 
 her deed. And it happens not by human prudence or 
 command, but by the agency of the Spirit and Word of ) 
 God, causing her to undergo a reformation from within to V 
 quit a previous lower state for a purer life ; a more profound ( 
 knowledge, and a more perfect organization in Gospel truth. C 
 In this way all the present Christian Churches of the earthy 7 
 
8 
 
 SCOTTISH CHURCH 
 
 in time must and will perish; making room for higher 
 evolutions of Christianity, whilst the Church perisheth not. 
 But, I repeat, as long as a single peculiar fragment of 
 the Church of Christ exists, so long will it cling to its 
 characteristic and organizing principles ; and so long as it 
 clings to these, it cannot but exist. In these principles it 
 has its individual existence, and the defence of these prin- 
 ciples it justly considers as a strife for life and death. 
 
 In the matter, the writer is now endeavouring to explain 
 the two leading principles at issue were those of Non- 
 intrusion and Spiritual independence; and it would be 
 impossible to prove, that the Church of Scotland has 
 exhibited a misunderstanding of her own character, in 
 /identifying herself with these principles. 
 
 By the term Non-intrusion, the Church of Scotland 
 means to express the principle, that a congregation, which 
 is, so to speak, ecclesiastically unblameable, has a right to 
 demand respect for its conscientious protest, through its 
 proper representatives, against a candidate presented for 
 the vacant pastorship over it, and that such presentee is 
 not to be intruded upon it contrary to its will, even though 
 the authorities of the Church be satisfied with the general 
 qualifications of the candidate. 
 
 of Spiritual independence, the Church 
 
 of Scotland means no vague arbitrariness, but simply this, 
 that in spiritual matters her jurisdiction is free from all 
 control of civil power, and especially that with regard to 
 
 ; the appointment of her office-bearers, the final decision rests 
 
 l ^ with herself. 
 
 Both these principles are essential to the view of the 
 Church of Christ, which the Scotch mind considers as 
 alone conformable to the Scriptures : and. as the prominent 
 feature of the Hussite's religious character was his enthu- 
 siasm for the cup, that of the Baptist's is his attachment to 
 
 
QUESTION EXAMINED. 
 
 adult baptism ; that of the Anglo-Catholic is his 
 for the apostolic succession and powers of his bishops, an< 
 so forth ; so the prominent feature of a Scotch Presby- 
 terian is his zeal to maintain the House of Christ pure, 
 and free from all things not directly founded on the scrip- 
 tural Word. Therefore he says, To the Church of the 
 Scriptures how revolting would have been even the idea of 
 overruling the conscience of a Christian flock by an 
 enforced appointment of a pastor, or of submitting the 
 rules, which Christ himself in his kingly authority has left 
 to his Church, to the revisal and control of any earthly 
 power. 
 
 The controversy at first turned around the first of the 
 above-mentioned principles alone, afterwards the second S, /\ 
 was brought into the field; the author will therefore follow 
 a similar order of subjects in this treatise. 
 
 In the^Bible^no mention is made of jDatrons at all. The 
 inference from this drawn by the Scotch mind would be, 
 that neither should there be patrons in the household of 
 Christ. However, patrons had risen into existence/and 
 since their existence did not appear absolutely incompatible 
 with a pure Church, the Scotch Church did not offer an 
 uncompromising resistance to their introduction by the 
 State, although she never ceased to feel it a heavy 
 grievance. 
 
 The doctrinal position of the Church of Scotland wim-/.^^ 
 
 \f&%*^&6+*<^**<3 t 
 respect to this matter is as follows. }*>*, /JL 
 
 In the Bible the Lord's Church does not appear in any . '. . 
 
 ^*****"^ ^* w "*"""**w*A^^* -lw BPP **^<"^J&-, I ~j 
 
 established relation to the State. She there holds the ^"V /f- 
 
 position of a private community, united on Voluntary prin- \ 
 ciples. She is rather the persecuted of the State. But / 
 the Scotch Church takes the view, that according to God'sS 
 ordinance, the Church and State ought not to have towards } 
 
each other the refetion either of enmity or of indifference \ 
 that the State, as such, is destined to become a Christian 
 State, or, as the Scotch would express it, that Christ, to 
 whom " all things have been delivered of the Father," is 
 not only King of saints, but also King of kings, and King 
 of nations; and that it is the province and duty of the 
 Church to Christianize the State. In pursuance of these 
 principles, the Church of Scotland considers that the 
 State, in its ruling capacity, is bound to establish the 
 Church of Christ in its dominion^ n t from motives of 
 human expediency, but by Divine appointment; and, on 
 the other hand, that the Church of Christ is bound in 
 conscience to take up the position of an establishment, if 
 offered to her. However, when she thus leaves the con- 
 dition of Voluntaryism for that of an establishment, she 
 naturally has to incur certain conditions from the part of the 
 State. These conditions, however, must be compatible 
 with her character as the Church of Christ, and must leave 
 / her free in the performance of her spiritual duties and the 
 1 fulfilment of the commission, which she has received from 
 \ Christ, and not from the State. 
 
 She is obliged to put herself in Christian communication 
 and co-operation with the State, but she is not allowed to 
 do so under conditions, which would injure the spiritual 
 rights of her children, even were she offered in return the 
 most dazzling earthly advantages. Were she to do this, it 
 would be treason to her Lord and his Word and Work; or, 
 to use the Scotch term, she would deny the Headship of 
 Christ. It would "dim" the kingly crown, which he alone 
 wears in his kingdom, a kingdom which is not of this 
 world, and which is contaminated by connexion with 
 worldly motives and interests, or in short, the Church of 
 Christ has not to surrender her spiritual independence 
 either to force or to alluring inducements. 
 
 
QUESTION EXAMINED. 11 
 
 Patronage is one of the conditions, which a Church .-< 
 incurs on becoming an Establishment, not necessarily, as 
 history shows, but usually. 
 
 It is a fact, that the Church of Scotland was rid of it in y 
 1690, and breathed freely when released from a burden so / 
 uncongenial to her. There have always been those in the r 
 Church of Scotland, who have looked on patronage as a 
 sinful, unchristian oppression, the endurance of which could 
 scarcely be excused by necessity. And even the more 
 moderate have considered it at least a grievance, only 
 so long tolerable, as its pernicious influences might be 
 neutralized. 
 
 Thus we may estimate the effect produced upon the 
 Scottish mind, when scarcely five years after the Union 
 took place, and in open violation of the Treaty of Union, 
 patronage was forcibly restored in the Church by the State, 
 in the celebrated Act of Queen Anne. The reasons for 
 passing it, assigned in the Act itself, will be admitted by 
 every candid reader to be a mere pretext. It is said, that 
 all patrons had not yet received their due compensation. 
 Well, then the respective debtors ought to have been made 
 to pay it. But what had the remissness of the debtors to 
 do with a disgraceful attack on the constitution of the 
 Church? It is said, that there had arisen "heats and 
 divisions" concerning the appointment of ministers in some 
 congregations. There had been, indeed, some cases of this 
 nature ; for instance, in Lonmay, in 1709, where the Kirk 
 Session and the congregation disputed for two years about 
 the minister to be presented to the Presbytery, and the 
 Presbytery was at last obliged to step in and settle the 
 matter itself. Well, at any rate, it was settled by constitu- 
 tional means, and it might have been settled earlier. How- 
 ever this may be, the State was not called upon, nor en- 
 titled to intermeddle as physician to the ailments of the 
 
12 
 
 SCOTTISH CHURCH 
 
 Church, especially as experience had taught, that its inter- 
 ference in ecclesiastical affairs always made things worse. 
 A defence of the Act of Queen Anne is impossible, an 
 apology for it difficult, and if ever history, in her right and 
 duty of calling things by their right names, should pro- 
 nounce on this transaction, she would not be too harsh 
 were she to brand it as a breach of sacred treaties, and a 
 gross offence against public honour and good faith. 
 
 The writer can readily understand, that the present 
 British Government had good motives for preserving 
 patronage. But as the Veto Act did not do away with 
 patronage, but was merely intended by the Church to give 
 a check to the unconscientious exercise of power by the 
 Presbyteries with respect to patronage, the remembrance of 
 the injustice, originally committed by the State, should 
 have induced, in its recent dealings with the Church, an 
 equity, which, had it been put in practice at the right time, 
 would have settled the disputes between the two parties 
 peaceably and speedily. 
 
 It is not necessary for the purposes of this investigation 
 to enter fully into the history of that momentous intrigue of 
 Bolingbroke against the Scotch Church. It was, as it were, 
 to punish the fidelity of Scotland to the Protestant succession, 
 that this blow was struck by Bolingbroke and the Jacobites 
 amongst the Scotch nobility ; a blow so much the worse, 
 as many other steps, important at that time, had already 
 been taken to the injury of the Presbyterian Establish- 
 ment. However this may be, Bolingbroke has gained his 
 point; it is a fact, that for 130 years patronage has been 
 in Scotland the law of the land, and loyally has the 
 Church respected it. The Veto Act was, with respect to 
 i patronage, a Conservative measure. Although in May, 
 \ 1842, the General Assembly denounced patronage as a 
 / bitter grievance, and petitioned Her Majesty most humbly 
 
QUESTION EXAMINED. 13 
 
 to ause measures to be proposed which should once for ^\ 
 all set aside this apple of discord, yet, in the spring of the year ( 
 (1843), they declared, with reference to the letter of Sir / 
 James Graham, that the continuance of patronage in the ) 
 Church was not, in the most remote degree, the point on \ 
 which the Church felt herself called upon, and bound in \ 
 conscience, to disunite herself from the State. But it * 
 must be leniently judged of, if, in proportion as life 
 returned into the Church, she felt anew an ache in her 
 wound, the old feeling of still unforgotten injustice being 
 again aroused. It is written, " They that sow the wind, 
 shall reap the whirlwind;" and thus the seed of injustice, 
 sown 130 years since, is springing up to life and spreading 
 disorder and confusion around. 
 
 No sooner did the Church of Scotland get tidings of 
 the introduction of that baneful Act of Queen Anne in the 
 Commons, than she sent to London three deputies, to 
 prevent, if possible, its passing into a law. But in con- 
 sequence of the difficulty of travelling at that time, and 
 the haste with which the Government urged the Bill 
 through the House, these deputies did not arrive till the 
 Bill had reached the Lords. They immediately, as they 
 had been commissioned, presented on behalf of the Church 
 a solemn remonstrance, but in vain. JThe Bill received the 
 Royal assent on May 22, 171'2. 
 
 Against this act of violence the General Assembly at 
 once protested. After the death of Queen Anne the 
 Church of Scotland repeated her protest before George I. 
 In 1717, they sent a deputation to London, to obtain, if 
 possible, from Parliament the repeal of the Act of Queen 
 Anne. The Petition of the deputation was read, but the 
 discussion of it deferred for a month ; but before that 
 time had elapsed, Parliament was prorogued. 
 
 When, in 1735, in consequence of the restoration of 
 
14 
 
 SCOTTISH CHURCH 
 
 patronage, the first secession took place^ the Church of 
 Scotland represented her grievance in a Petition to 
 George II. 
 
 In 1736, the General Assembly, seeing all its efforts 
 to be unavailing, made a solemn declaration, in which it 
 again pronounced its protest, together with the reasons 
 on which it was founded; and made it a duty to itself, 
 and all subsequent assemblies, to use all lawful means, on 
 every suitable occasion, to obtain the repeal of the Act 
 of Queen Anne. At the same time it ordered its Com- 
 mission, once for all, " to make due application to the 
 King and Parliament for redress of the grievance of 
 patronage, in case a favourable opportunity for so doing 
 should occur during the subsistence of their Commission." 
 Like the incessant advice of the immortal Roman against 
 Carthage, the protest of the Scotch Church against the 
 Act of Queen Anne, formed, during forty-eight years 
 (viz., till the year 1784), the concluding words of the 
 annual instructions given to the Commission of the General 
 Assembly. 
 
 At the same time, in order to neutralize the injurious 
 effect of patronage, the Church, in 1736, declared her 
 adherence to her ancient principle of Non-intrusion. 
 
 Notwithstanding this, secessions followed. The Church, 
 under the sway of the Moderates, who either methodically * 
 or involuntarily plunged her into apathy, at last desisted 
 from her fruitless public remonstrances, like a thrown 
 wrestler who ceases to struggle, not because he has 
 yielded, but in order to gather new strength. In the 
 year 1782, the Moderates thought the time had arrived 
 when the Church might be induced to make a declaration 
 renouncing the rights granted to the parishes in the 
 appointment of ministers by the Act of 1690, and by this 
 * As was the case with Principal Robertson. 
 
QUESTION EXAMINED. 15 
 
 declaration abandon her legal grounds against the perni- 
 cious working of the Act of Queen Anne. But even in 
 that dangerous moment, the feeling of right and of duty 
 towards the Church and nation proved superior to all 
 machinations, and Dr. F. M'Night saved the Church of 
 Scotland in her Assembly, by inducing it again solemnly 
 to declare the old right of the parishes in the appointment 
 of their ministers, as " agreeable to the immemorial and 
 constitutional practice of this Church," and as " to be 
 continued." 
 
 In the beginning of the present century a new life awoke 
 in the Church of Scotland, as in those of England and 
 Germany. The Evangelicals, the opponents of the 
 Moderates, grew stronger and stronger, till at length in 
 1834 they had a decided majority. The passing of the 
 Veto Act in that year was no more than a new step, similar 
 to all those which the remonstrating Church had never 
 ceased to take since 1712, with this great difference, that it 
 was not a protest, but a measure of settlement and recon- 
 ciliation. The operation of this Act would have been, as an 
 impartial consideration would show, and as the most able 
 and respectable opponents of it (such as Dr. Cook) had 
 begun to acknowledge, on the one hand, virtually to 
 recognise patronage, and on the other, to allow the Act of 
 Queen Anne, without an express repeal gradually to fall 
 into oblivion, and thus to produce a state of things greatly 
 to be desired by all parties. But unfortunately this inten- 
 tion of the Veto Act has been misconceived. 
 
 THE MODERATES AND THE EVANGELICALS. 
 
 The author begs now to make a short digression, in 
 order to describe the two leading parties in the Scotch 
 Church. Their difference is not in individual points of 
 doctrine, but they exhibit within the pale of the same 
 
16 
 
 SCOTTISH CHURCH 
 
 Church a decided contrast in spirit, which more or less 
 prominently characterizes all their views and proceedings. 
 He will now attempt to discover the points, from which, 
 abstractedly considered, this pervading difference of view 
 may arise even in conscientious men. The first point 
 seems to the author to be the two views which may be 
 taken of the Church, which we may call institutional 
 and personal. That is to say, the Church may be viewed 
 on the one hand, as an authoritative spiritual institution, 
 which rears, trains, and rules the individuals ; on the other, 
 as a congregation of faithful individuals or persons, through 
 whose spiritual activity alone it is that that institution 
 acquires its duration and forms of existence on earth, the 
 Church is in herself inseparably both the source and the 
 result of spiritual life. Both these views are true, but 
 separated from each other become partial and injurious. 
 History shows, that not only different Churches, but that 
 different parties within the same Church are more or less 
 inclined to one or the other of these views to the neglect of 
 its opposite ; and that these Churches and parties take their 
 general character from the degree in which they approach 
 one or the other extreme, so that any particular object 
 becomes important or trivial to one or the other Church 
 or party, in proportion as it is connected with one or the 
 other of these views. 
 
 
 The character of the Scottish Church in this respect, 
 appears to consist in the combination of both views, with a . 
 preponderance of the personal. 
 
 It would lead us away too far to explain here how this 
 character manifests itself in her form of government, dis- 
 cipline, and worship, and how all her great virtues, as well 
 as all her deficiencies, are connected therewith. 
 
 The second point is an historical one. The Church of 
 Scotland rose into existence, and maintained herself througl 
 
QUESTION EXAMINED. 17 
 
 a severe struggle during centuries, against a hostile regal 
 dynasty and part of the aristocracy, by the pure force of 
 religious energy in the people, hence the decided disinclina- 
 tion of the Scottish Church to Erastianisra, in whatever shape 
 and form it may present itself, hence her characteristic 
 jealousy of any suspicious interference of the State in 
 ecclesiastical matters. 
 
 The Evangelicals are, in the writer's opinion, the 
 spiritual successors of those men who formerly effected the 
 establishment of the Church of the Scottish reformation 
 against a hostile State; and as the representatives of the 
 genuine spirit of the Church of their fathers, they zealously 
 adhere to what we have called the personal view of the \ 
 Church, and to the principle of her spiritual inde- 
 pendence. 
 
 The Moderates, in contradistinction to their opponents, 
 may justly be characterized as those who, with regard to 
 the Church herself, prevalently hold the institutional view, ( 
 and with regard to her relation to the State, with more or \ 
 less disguise, the Erastian principle. 
 
 The author enjoys the acquaintance and friendship of 
 many excellent and highly estimable men on both sides of 
 the question ; and in order to avoid any misconstruction, 
 he herewith admits that there may be, and really is, on 
 both sides, personal honesty, conscientiousness, and piety; 
 and that of course, in practice, we may expect to find 
 innumerable shades of opinion between extreme Mode- 
 ratism and extreme Evangelicalism; but such will not 
 militate against the general assertion which the writer dares 
 to make, that Moderatism, in the abstract, may be said to 
 be that constituent element of the Scottish Church which 
 originally united itself to her by conformation, without an 
 appropriate reformation in her spirit. 
 
18 SCOTTISH CHURCH 
 
 But to return. It is fortunately in the nature of wrong, 
 that it never is absolute and thoroughly consistent ; this is 
 only the Divine prerogative of reason and right. The Act 
 of Queen Anne had taken the right of presentation from 
 the elders and heritors, and restored it to the patrons ; but 
 nothing more. It ordains that the Presbytery should 
 receive and admit the qualified minister presented by the 
 patron ; but altogether " in the same manner as the 
 persons or ministers presented before the making of this 
 Act ought to have been admitted." 
 
 Now, what was this manner? That, undoubtedly, 
 granted in the Act of 1690. This allowed the parishioners 
 the right of real consent, the reverse of which is real veto. 
 The only change in the mode of appointment was, that the 
 heritors and elders, who previously possessed in a measure 
 the character of the patron, were now placed in their 
 simple character as members of the congregation with the 
 rest of the parishioners, with reference to the patron. The 
 position of the Presbytery was externally not altered: 
 internally, in so far as the patron acts in the capacity of a 
 civil person, and not as a member of the Church ; and thus 
 the relation of the Church authorities towards him could 
 perhaps involve some things not contained in the relation 
 of those authorities to the heritors and elders, and other 
 members of the parish, who in this case all acted as 
 members of the Church. That unfortunate '"perhaps" 
 has now exhibited, like the Trojan horse, an unexpected 
 reality. The whole dispute began on this very point, 
 that the Church, in this relation of hers to the patron, 
 was accused of having taken a step which she was not 
 entitled to do, which infringed the right of the patron, 
 which was said to be, in fact, illegal. Nay, farther, it was 
 called an illegal assumption in the Church ; that she had 
 
QUESTION EXAMINED. 19 
 
 not only given the congregations a decisive veto, but that 
 she generally claimed it for herself without control alto- 
 gether. This was a misconception on the part of the 
 State authorities, which, independently of the Veto Act, 
 must have brought about all the subsequent lamentable 
 controversy. On this point the question passed from the 
 principle of Non-intrusion to a question of the constitu- 
 tional jurisdiction of the powers of the Church and the 
 State, to elucidate which the writer must call attention to 
 another element, without which the Veto Act, in its 
 historical and legal merits, cannot be understood, he 
 means, The Call" 
 
 THE CALL. 
 
 The principal of Non-intrusion, which the writer has 
 previously expressed in a negative form, may also be 
 regarded in the following positive aspect : 
 
 " The consent on the part of the parish to the appointment 
 of their minister is as real a prerequisite for his admission, 
 ordination, and induction by the Presbytery as his presenta- 
 tion on the part of the lawful patron" 
 
 The right of the parish, of which the Veto Act was but 
 a wise and conciliatory negative expression, has always been 
 recognised in the Scotch Church in the continuation of 
 what is styled " The Call." This call is a document 
 solemnly presented to the candidate on the part of the 
 parish, in which they invite him to take the pastoral charge 
 over them. Several essential portions of the ceremony of 
 ordination and induction refer to it; and without it no 
 minister has been admitted into a pastoral office in the 
 Scotch Church for centuries. The form of the document 
 varies in various districts in its expressions, but the sub- 
 stance is always the same. The following is the Call in 
 the Auchterarder case : 
 
 c 2 
 
20 SCOTTISH CHURCH 
 
 " We, the heritors, elders, heads of families, and parish- 
 ioners of the parish of , within the bounds of the 
 
 Presbytery of , and county of . , taking into 
 
 our consideration the present destitute state of the said 
 parish, through the want of a Gospel ministry among 
 us, occasioned by the death of our late pastor, the Rev. 
 
 , and being satisfied with the learning, abilities, and 
 
 other good qualifications of you, , preacher of the 
 
 Gospel, and having heard you preach to our satisfaction 
 and edification, do hereby invite and call you, the said 
 
 , to take the charge and oversight of his parish, 
 
 and to come and labour among us in the work of the 
 Gospel ministry, hereby promising to you all due respect 
 and encouragement in the Lord. We likewise entreat 
 the Reverend Presbytery of - to approve and 
 
 concur with this our most cordial Call, and to use all 
 proper means for making the same, effectual, by your 
 ordination and settlement among us, as soon as the 
 steps necessary thereto will admit. In witness whereof, 
 we subscribe these presents, at the church of - , on 
 
 this the day of - , eighteen hundred and - 
 
 years." 
 
 If, then, patronage has been for 130 years the law of 
 the land, the Call has been also the established law of the 
 Church for centuries. 
 
 Patronage contains in itself a limitation of the elective 
 rights of the congregations. But if it is necessary and 
 expedient to limit the congregational rights in the appoint- 
 ment of ministers by means of patronage, it is hardly 
 conceivable why it should not be equally necessary and 
 expedient to limit patronage by means of the congrega- 
 tional rights. Is a Christian community, as a body, really 
 nothing? Is it in an ecclesiastical point of view perfectly 
 denuded of rights? Or, if not, can it only possess them 
 
QUESTION EXAMINED. 21 
 
 in external and temporal things, and not also with regard 
 to its spiritual interests ? The answer to this question may 
 certainly be embarrassing, if we consider the de facto con- 
 dition of Establishments over the whole Protestant world, 
 England by no means excepted, but in the Scotch Church 
 it has never been doubtful. The author would not be 
 understood to wage unconditional war against patronage ; 
 but he would ask, is it entirely free from objection and 
 danger? Is not, on the contrary, absolute patronage 
 incompatible with the character of the Church of Christ, 
 and a thing which has in fact never legally existed ? 
 
 The simple fact, in the year 1834, was therefore this: 
 The presentation by the lawful patron and the Call of the 
 parish were co-existent, and their co-existence was regarded 
 bond fide by the Church as possible, having actually existed 
 upwards of a century. Several cases, no doubt, had 
 occurred in the course of that time like that of Auchter- 
 arder, in which the Presbytery had rejected the candidate 
 of the patron, and even appointed another, without the 
 civil court seeing sufficient reasons for it in the statutes. 
 
 1. Case of Auchtermuchty (Moncrieffv. Moxton, 1735.) 
 
 2. Case of Culross (Cochrane v. Stoddart, 1751.) 
 
 3. Case of Lanark (Dick v. Carinnhael, 1753.) 
 
 4. Case of Forbes (Forbes v. Mac William, 1762.) 
 
 5. Case of Dunse (Hay v. Presbytery of Dunse, 1749.) 
 
 6. Case of Unst (Lord Dundas v. Presbytery of Shet- 
 land, 1795.) 
 
 In all these cases, the predecessors of the present Lords of 
 Session had with a proper feeling of justice, and a clear in- 
 sight into the state of affairs, kept the civil and ecclesiastical 
 parts of the matter clearly and distinctly separate. In the 
 first respect, the decision was against the Church, while in 
 the latter, no unwarrantable assumptions were made. And 
 again, on the part of the Church, perfect obedience was 
 
22 
 
 SCOTTISH CHURCH 
 
 yielded to the former, while nothing was left to complain of 
 in the latter. Had not the Church in 1834 a right to 
 expect, that when the Court of Session unexpectedly 
 assumed a different position, the House of Lords, as the 
 Court of Appeal, would correct its proceedings? And 
 when she was obliged to respect, in the decision of that 
 House, the certainly surprising yet authoritative exposition 
 of the law of the land (for she at once, in 1839, provisorily 
 suspended the Veto Act), was it a disregard of the highest 
 judicial authority of the realm, if, when it came to the point, 
 whether she could remain an Establishment or not, she 
 applied to the Legislature for a remedy? Let any one 
 place himself in the position of the Scotch Church. She, 
 indirectly in a suit of one of its lower courts, is told, that 
 she has for a century been labouring under a misunder- 
 standing with regard to her constitutional principles and 
 rights. She can scarce believe it, she fancies herself in a 
 dream, till at last she is beyond a doubt assured of the fact 
 by a decision of the House of Lords. And now it is no 
 longer the unfortunate Veto Act, which forms the question. 
 Had the Veto Act never been passed, it must by some 
 means or other have come to light, that the State regarded 
 the conditions of existence of the Scotch Church as an 
 Establishment, in a different manner from that in which 
 the Church had been accustomed hitherto honestly to regard 
 them. The foundations of the treaty between the Church 
 and State are broken up. The petition of the Church to 
 the Legislature demanded undeniably nothing less, than a 
 fair acknowledgement of that treaty, on the strength of 
 which the Church had accepted her Establishment, and 
 which she had promised to repay with a grateful return of 
 service, and on which, moreover, the highest political ques- 
 tions depended. It was a vital and a fateful question with 
 the Scotch Church. The State thought to get the best of 
 
QUESTION EXAMINED. 23 
 
 the conflict by the policy of the celebrated Roman Cunctator, 
 and this led to the misfortunes which have ensued. It was 
 a thorough mistake regarding the importance of the ques- 
 tion, to think, that by persevering inaction on the part of 
 the State the cloud would pass over. 
 
 The Veto Act, as will be shown, was neither illegal in 
 its principles, nor was its promulgation beyond the powers 
 of the Church, the immediate causes of it were as follows : 
 
 As the Church acquired new life, the Anti-patronage 
 feeling gained strength. It was fostered by a series of 
 violent intrusions of ministers upon reclaiming congrega- 
 tions, which had been made under the sway of the 
 Moderates, from an unfeeling disregard to the spiritual 
 rights of the people, and a servile obsequiousness towards 
 the patrons. 
 
 In some cases the clergyman, the minister of peace, had 
 been introduced by the aid of the police or military. 
 The improving spirit of the Scotch clergy, and the 
 development of the Church generally, were not produced 
 (be it said, without offence to any worthy and conscientious 
 patron) by the patronage system, but only under it and in 
 spite of it. The inward life of a Church is always the 
 most real and powerful protector of her existence : without 
 this no Veto Act can save her, with it no patronage can 
 essentially injure her. This we may affirm, without 
 denying that there is an optimism of form, after which 
 the Church may strive, and for which, in case of need, she 
 ought to contend. 
 
 In 18*22, the Anti-patronage Society was formed, whose 
 agitation had already attained considerable power. Peti- 
 tions poured into Parliament with such rapidity, that it 
 was at last led to appoint a Commission to investigate the 
 subject. And here, perhaps, the writer may be allowed to 
 
24 SCOTTISH CHURCH 
 
 
 make two passing remarks. First, that Commission highly 
 praised the Scotch Church for the efficacy and fidelity with 
 which she has fulfilled her spiritual duties towards the 
 nation. They say, " No sentiment has been so deeply 
 impressed upon the mind of your Committee, in the course 
 of their long and laborious investigations, as that of venera- 
 tion and respect for the Established Church of Scotland." 
 This praise has been since very often confirmed, even by 
 her opponents, in idle words. Would that they had not 
 considered this verbal praise a sufficient discharge of their 
 duty of justice to her ! Secondly, that it was Lord 
 Monereiff, the same distinguished lawyer who seconded 
 most zealously the Veto Act in the General Assembly, 
 and who, before that Parliamentary Commission, strongly, 
 wisely, and eloquently defended the preservation of 
 patronage, a proof how unjustly, and, to say the least 
 of it, how ignorantly the Protesting Church has been 
 accused of wishing, in an underhand manner, to destroy 
 patronage. 
 
 The motive of the Veto Act was just the reverse of this. 
 
 This Anti-patronage Society then drew public attention 
 more and more to the question, and the Church became 
 more and more bound to calm the people by a measure 
 which should show, that a loyal submission to the law of 
 patronage was not incompatible with fidelity to the prin- 
 ciples of the Scotch Church, the revival of which among 
 her people the Church necessarily saw with pleasure, and 
 was bound to respect. As early as 1832, overtures had 
 been sent to the General Assembly from three Synods and 
 eight Presbyteries, urging it to pass a measure, by which 
 either the Call should be abolished or receive its due 
 right; for, as it stood, it could not be retained without 
 causing public scandal in the Church. At that time a 
 majority of forty-two Members decided against taking these 
 
QUESTION EXAMINED. 
 
 overtures into consideration. It was said by 
 that the matter was of so delicate a nature, and such 
 gigantic importance, that even consideration of it ought 
 to be deferred till the table of the House should groan 
 under the load of petitions and cases of disputed settle- 
 ment. In the year 1833, forty-five overtures were sent in, 
 and a speaker remarked, that if not the table, at least the 
 clerks of the House, would groan under the burthen of 
 cases of disputed settlement since 1734, if they were to 
 bring them from the archives. 
 
 The form of the plantation of a church was as follows : 
 The presentee delivers the instrument of presentation of 
 the patron, and other necessary papers to the Presbytery. 
 In that instrument the patron requests the Presbytery " to 
 take trial of his qualifications, literature, good life, and 
 conversation, and of his fitness and qualifications for the 
 functions of the ministry at the church to which he is 
 presented;" i.e., to try, not only the general ecclesiastical 
 requisites especially pointed out as the meaning of the 
 technical term " qualified" but, at the same time, thejitness 
 for the particular parish. Let it be, therefore, .noticed in 
 passing, that the Scotch Church has clearly introduced no 
 presumptuous innovation in her demand of fitness, ac- 
 ceptableness, or meetness in a presentee, and it was the 
 object of the Veto Act to obtain the judgment of this 
 fitness, &c., from those who, rightly considered, and in a 
 regular order of things, can best exercise such judgment; 
 viz., the members of the parish. For, if the Presbytery 
 after having received the presentation sends the candidate 
 to the vacant parish that the people may have trial of his 
 " gifts of edification," it is evident that these people can 
 best judge whether such a gift is or is not possessed by 
 

 26 SCOTTISH CHURCH 
 
 the candidate. When the candidate has preached once, 
 twice, or even thrice, the parishioners are invited on a fixed 
 day to issue their Call, after a solemn Divine service. In 
 this document it is shown, first, that they who issue the 
 Call are not strangers. Secondly, that they are attendants 
 at Divine service, and members of the Presbyterian Church. 
 Thirdly, that the candidate will constantly preach to them, 
 and they constantly hear him, and render him all due 
 obedience and encouragement in the Lord. This is the 
 pastoral relationship so often spoken of in the late dispute, 
 as it were a spiritual compact between two parties in the 
 Church, justly called a spiritual one, which no civil power 
 can make or unmake. After the consent of the parishioners 
 has been obtained in their Call, according to the idea and 
 law of the Church, the Presbytery examines the candidate 
 as to those requisites which the Church demands of him, 
 and if he then answers the general requirements, good 
 life, literature, and sound doctrine, he is ordained and 
 inducted. 
 
 According to this view, the presentation of the candidate 
 by the lawful patron, and his acceptableness, or, at least, 
 the absence of non-acceptableness from the part of the 
 parishioners, are, according to the spirit and law of the 
 Scotch Church, the two preliminary conditions to her 
 undertaking the last proceeding of confirming or rejecting 
 a presentee. If, therefore, in the Auchterarder case, the 
 Presbytery did not take Mr. Young on trial, since 287 
 lawful voters out of 330 had expressly protested against 
 him, it acted in the spirit and according to the law of the 
 Scotch Church. 
 
 In the ordination of the candidate he is asked, inter 
 alia, " Do you close with and accept of the Call to be 
 minister of this people ? " to which he answers, " Yes ; " 
 
 
QUESTION EXAMINED. 27 
 
 but what meaning has this, if the people have no real 
 right, but if the validity of their consent or dissent only 
 depends on the Presbytery's arbitration ? 
 
 In the course of time the Call had become merely a 
 mockery in the holy place. To this state the Moderates 
 had brought it. When the Act of Queen Anne appeared, 
 the feeling of injured right was so strong in the better 
 class of patrons and the whole people, that, for a 
 long time no patron, ventured to use his restored right, and 
 the Act remained for more than twenty years a dead 
 letter in the Statute-book of the land. The contempt of 
 the rights of the people, which afterwards became a 
 standing practice, was, as must be admitted, first intro- 
 duced by the Moderate Church courts themselves, in 
 cringing to the wishes of the influential patrons, and in 
 assuming an unwarranted power over the congregations. 
 History tells us, that in the first two cases of intrusion, 
 the General Assembly, although confirming the proceed- 
 ings of the intruding Presbyteries against the appealing 
 parishes, made at the same time an appeasing apology for 
 their approbation of them. Afterwards the Moderates 
 thought this unnecessary, and from 1735, when they had 
 already gained a decided preponderance in the Church, the 
 Call became more and more an empty form, a mere com- 
 pliment of the parish to the minister ; and, like all other 
 compliments, not to be taken in earnest. The conduct of 
 the Moderates in the Church courts gradually produced 
 apathy in the churches, and drove those who could not 
 overcome their conscientious scruples out of the Church of 
 their fathers. 
 
 The most striking proof of this unhappy condition of 
 the Church under the Moderates, is the fact, that in the 
 course of the century in which they had the majority, 
 

 28 SCOTTISH CHURCH 
 
 above "five hundred" seceding churches were built. This 
 state of things could not continue, if the Establishment 
 was not to be ruined by its own rulers. It was with an 
 instinct of self-preservation, and, indirectly, even for the 
 deepest interests of the State, that the Church of Scotland, 
 on its accession to new life, promulged the Veto Act. If 
 we look closely to what the Scottish Church has done 
 under the influence of the Evangelical party, within less 
 than twenty years, in all her so-called schemes, in her 
 church extension, in her evangelizing of the country, in 
 her schools, both higher and elementary; in her missionary 
 enterprises, in provision for Presbyterian bodies abroad, 
 our admiration will only be surpassed by one grief, that 
 all these blessings of the Lord have been interrupted by 
 the unhappy calamity into which the Church has been 
 plunged. At the same time, the comparison of their con- 
 dition with that in which the Church was under the 
 Moderates, readily admitting the aid of many favourable 
 circumstances, furnishes a striking light respecting the 
 spiritual principles and modes of action of both parties. 
 The Church was morally forced to adopt some measure 
 like the Veto Act. She was forced to respect the indig- 
 nation which was inflamed by the continuation of so gross 
 an abuse respecting the Call. Could she allow a pro- 
 ceeding to continue, which, when once brought into public 
 attention, must degrade her in the eyes of her own people? 
 
 Thus stood the Church in 1834, with regard to patronage 
 and Call*. 
 
 There is now one more historical point to explain, in 
 order to understand the Veto Act, to which the author 
 begs to draw attention, before he enters on a short sum- 
 mary of this first section, viz., the dispute of the Church 
 with Voluntaryism. 
 
QUESTION EXAMINED. 29 
 
 RELATION OF THE CHURCH TO VOLUNTARYISM. 
 
 The Seceders of Scotland have attained, in merely a 
 numerical point of view, to a degree of strength very 
 critical for the Establishment, comprising at this moment, 
 together with the Free Church, perhaps more than one- 
 half of the nation. Their position is very different from 
 that of Dissenters in England. After leaving the Estab- 
 lishment they remain, in every respect, Presbyterians, and 
 sons of the Scotch Church, reproaching that portion of 
 their number, which remains in the Establishment, with 
 delivering up unalienable and recognised rights of the 
 Church of their fathers from the love of temporal advan- 
 tages, or, as they themselves phrase it, with selling, like 
 Esau, their birthright for a mess of pottage, and with being 
 unlike Moses, who had rather suffer every reproach with 
 the people of God, than feed on the flesh-pots of Egypt. 
 Should it ever happen an event which may not be impos- 
 sible that certain principles, now entertained by a large, 
 influential, and learned portion of the English clergy, 
 should be carried to such a point, that the English Evan- 
 gelical party should feel compelled to leave the Establish- 
 ment without thereby ceasing to be Episcopalian, a similar 
 state of things would ensue in England. 
 
 When the Veto Act was passed, thirty churches, which 
 had previously seceded, instantly returned into the bosom 
 of the Established Kirk, and there is no doubt, that the 
 Veto Act would have been the means, in due time, of 
 bringing back all those who had not yet taken up such a 
 one-sided view of patronage, as to consider it decidedly 
 Antichristian. This beneficial result of the Veto Act is 
 now also destroyed. When that Act was passed, it was 
 almost the last moment in which the Church of the land 
 could yet fulfil her maternal duties towards her children, 
 
30 SCOTTISH CHURCH 
 
 who had been driven out by the fault of her own rulers, 
 and the Veto Act was, therefore, in that point of view a 
 matter of duty. 
 
 The Seceders had left the Establishment, still adhering 
 to the principle, that the Church of Christ ought to have 
 an established relation to the State, but became Voluntaries 
 de facto. However, it is usual in human affairs, that what 
 first arises from necessity soon becomes habit, that long 
 habit grows into a principle, and if the heat of controversy 
 be added, that what was first a conditional principle, soon 
 becomes an absolute and exclusive one. This, too, had 
 been the course of events in Scotland. It is well known, 
 that the exciting dispute on the principles of Establishment 
 and Voluntaryism had attained almost an unprecedented 
 extent, and a high degree of bitterness ; that the Voluntaries 
 had almost become the enemies of the Church, and in their 
 opposition had common cause with men, from whom, in all 
 other respects, they were most advantageously distinguished, 
 those indifferent and worldly people, who see nothing in the 
 Church but priestcraft and clerical ambition. At that time 
 the prevalent cry, " The Church is in danger," was not at 
 all without foundation, and a measure like the Veto Act 
 became indispensable to her safety with regard to her 
 enemies. 
 
 We may assert, that in principle and theory the Church 
 under the able guidance of Dr. Chalmers obtained the 
 victory. It is well known how beneficially the lectures, 
 which he delivered in London on this subject, have acted 
 even in England j and any one who knows the facts of the 
 case, and is acquainted with the views of that distin- 
 guished individual, may well be angry at the obstinate 
 shortsightedness, with which that high-minded man 
 is now accused of fickleness and inconsistency. His 
 convictions are not changed, although, together with 
 
QUESTION EXAMINED. 31 
 
 the whole Free Church, he is de facto flung back on 
 Voluntaryism. Has he ever asserted that the Church of 
 Christ, as an Establishment, ceases to have certain inherent 
 and inalienable rights and duties ? Let the very first of 
 his lectures answer this question. The Church, as an 
 Establishment, gives her services to the State, but does not 
 sell it her conscience. She enters into all its regulations 
 as they are contained in the technical expression, "jura 
 circa sacra;" but she cannot allow to it any "jura in 
 sacris" It was worldly unbelief in the power of a moral 
 and religious conviction, capable of any sacrifice, and the 
 non-acknowledgment of the vast importance possessed by 
 the Scotch Church question, both for people and country, 
 which rendered it possible, obstinately to refuse the final 
 hearing and remedy to the suppliant Church, and which, 
 when that Church neither could nor dared recede or step 
 aside, drove her to the measure which she has taken 
 reluctantly but with a good conscience. 
 
 In principle and theory then, the Church, under the 
 guidance of Dr. Chalmers and men of a like stamp, carried 
 the day against Voluntaryism. But of what use was this 
 to her, if, in her practice, she allowed that to continue to 
 which her enemies ever pointed as to the real refutation 
 of that theory? With the Establishment, said they, 
 patronage is necessarily connected; with patronage, intru- 
 sion; with intrusion, tyrannical oppression of the rights 
 belonging to a Christian people according to the scriptural 
 principles of Protestantism generally, but more particu- 
 larly the Scotch form of it. It was on the ground of the 
 infringement of these rights by the Moderates that the 
 seceders left the Establishment, regarding it first with 
 sorrow, then with hostility. It is no exaggeration to say, 
 that the Scotch Church, surrounded as she was by 
 
.'V2 SCOTTISH CHURCH 
 
 
 Seceders, Dissenters, Episcopalians, Romanists, Methodists, 
 and other smaller sects, was even then in danger, and was 
 driven to a measure by which she might hope to change 
 at least some of her seceding members from foes to friends. 
 The Seceders, as may be easily conceived, are, like the 
 Dissenters in England, chiefly of the middle and the more 
 respectable of the lower classes of society. By the Reform 
 Bill they had just been gaining a great influence even in 
 Parliamentary elections, and their attacks on the Estab- 
 lishment, which commenced about the same time, became 
 more dangerous. In the so-called Voluntary controversy, 
 the chief and most vulnerable point of attack in the 
 Church was always that respecting " the settlement of 
 ministers," which was at the same time the point in which 
 all Scotchmen of all parties were most interested ; and 
 while the enemies of the Church showed, how for a century 
 past the Church, under the sceptre of the Moderates, had 
 sinned in this point against the people, and how, as an 
 Establishment, she could not but continue thus to sin, 
 they not only confirmed their own party in incurable 
 separation from the Church, but alienated more and more 
 her own members from her. Had this continued, the 
 Scotch Establishment would soon have stood to the people 
 of Scotland as the Irish does to the people of Ireland. 
 But, happily for her, the Evangelical party had got the 
 upper hand in her courts, that party which alone was 
 able to sustain the Church and meet the attacks made 
 upon her. 
 
 The Veto Act was the measure which proposed to itself 
 and effected both these ends. Now that the Evangelicals 
 have been driven to secession, and the Moderates have 
 repealed the Veto Act, the fight against the Establishment 
 will be renewed with diminished power of resistance, and 
 
 
QUESTION EXAMINED. 33 
 
 proportionately increased power of attack ; and neither the 
 increasing activity of the Moderates, nor the Church of 
 Scotland Benefices Bill will be able to stem the torrent. 
 
 These details will show how unfounded was the charge 
 of unseasonableness so often brought against the Veto Act. 
 No one will make such a charge who has followed the 
 debates of the General Assembly from 1832 to 1834; no 
 one who knows the history of the Church and country, its 
 parties, and the causes of their existence, their principles, 
 and their modes of feeling and thinking. 
 
 The matter is one purely Scotch, and as the Scotch 
 Church occupies a peculiar position in the Protestant 
 world, the whole affair must be treated on its own ground. 
 All abstract theories, all transference of English views and 
 premises applied to it can only mislead. The measure was 
 imperatively demanded by circumstances, nor has it arisen, 
 as has been unjustly asserted, from a revolutionary spirit. 
 It was no fault of the Scotch Church that the Reform Bill 
 produced at that time a great excitement in the minds of 
 the people, but rather her misfortune, for that popular 
 excitement burst like a violent tempest upon her. The 
 Church, striving to maintain the then existing conditions 
 of her Establishment, and to resist that popular excitement, 
 acted on Conservative principles, and did not make common 
 cause with the Anti-patronage movement. She might 
 fairly, therefore, have looked for better treatment upon the 
 change of Government. The Church has been invidiously 
 charged with the intention of making the Veto Act only a 
 preliminary step; its real object kept, however, in the 
 back-ground, having been to eradicate patronage by degrees. 
 The ill-founded nature of this charge is clear to every one 
 who knows the transactions of the period, and the influential 
 men concerned with it, such as Lord Moncreiff, Dr. 
 Chalmers, and others, and who is aware that in the Non- 
 
34 * SCOTTISH CHURCH 
 
 intrusion Committee appointed by the Church (consisting 
 of more than twenty members) there was but one person 
 holding Anti-patronage principles. 
 
 The Veto Act, on the contrary, was passed in order to 
 maintain patronage, and, at the same time, to meet the 
 then existing difficulties. For the future they wanted 
 nothing more than what their opponents have now effec- 
 tually prevented, viz., to strengthen the Establishment 
 against destructive opponents, and to restore more ani 
 more an ecclesiastical unity ; and it is a fact, that during 
 the five years of the undisturbed existence of the Veto 
 Act, it had been effecting these objects in a wonderful 
 manner. 
 
 In conclusion, the writer would draw attention to one 
 point which deserves the greatest consideration, with refer- 
 ence to the treatment the Church has experienced from the 
 State. 
 
 The General Assembly was certainly aware that every 
 measure by which the principle of Non -intrusion was to 
 be secured, must in some way affect the position of 
 the patron. When by various circumstances and 
 express overtures they were forced to act, the question 
 arose, whether it would be better to apply at once to the 
 Legislature, and thus more surely avoid all collision. But 
 the circumstances of the time rendered it advisable to avoid 
 such a step, if the object could be otherwise lawfully 
 obtained ; and the experience which the Church afterwards 
 has had of the feelings of Parliament, has but too well 
 justified her apprehensions. 
 
 It seemed best, if possible, to avoid bringing an eccle- 
 siastical matter such as this, which touched the deepest 
 principles of the constitution of the Scotch Church, and 
 the appreciation of which required the most intimate and 
 minute knowledge of those very Church views, feelings, 
 
 
QUESTION EXAMINED. 35 
 
 and habits, before a Parliament, which even with the best 
 will could scarcely free itself from peculiar English views. 
 Add to this, that the ecclesiastical interests of the Scotch 
 are not imperial, but local, and could only be represented 
 by very few of the numerous members, and by these even 
 with different views. Add, that Parliament stands in a 
 very different constitutional position towards the Scotch 
 Church, to that which it hplds towards the English Church, 
 and that with regard to the Scotch Church it is composed* 
 almost wholly of elements strange and foreign to her ; that, 
 moreover, the Church disliked to bring an ecclesiastical 
 matter to the political arena, where her opponents possessed 
 such great advantages and so many ways of annoying her, 
 and where she would have to meet, in addition to her con- 
 test with her enemies, as well as the minority in herself, 
 the noisy agitation for the total abolition of patronage, and 
 admit that these reasons were urgent enough to induce the 
 General Assembly not to take this course. Moreover, a 
 course was pointed out from a quarter which left no doubt 
 of its legality. Lord Moncrieff, a man recognised by all as 
 one of the first lawyers in Scotland, himself introduced the 
 Veto Act as perfectly " within the powers of the Church." 
 The Church also took the opinion of her own Procurator 
 and other eminent lawyers in the Assembly. What is 
 more, the measure had the express approbation of the Lord 
 Advocate of Scotland, and the virtual approval of the 
 representative of the Crown, the Lord High Commissioner, 
 under whose eye the law was passed. How the matter 
 was regarded in Parliament, may be now very interestingly 
 seen from the mode in which the Lord High Chancellor 
 for the time being has spoken of it in the House. 
 
 He said, on July 23, 1834 (vid. " Mirror of Parliament"), 
 on presenting petitions for the abolition of patronage, 
 referring to the Veto Act lately passed by the General 
 
 D 2 
 
36 
 
 SCOTTISH CHURCH 
 
 Assembly with the knowledge and acquiescence of the then 
 Government : 
 
 " My Lords, I hold in my hand a great number of 
 petitions from a most respectable portion of His Majesty's 
 subjects in the northern parts of this island, all referring 
 to one subject, I mean Church patronage in Scotland, 
 which has greatly and powerfully interested the people of 
 Scotland for many months past, and respecting the 
 expediency of some change, in which there is hardly any 
 difference of opinion among them. The late proceedings 
 in the General Assembly (viz,, in passing the Veto Law) 
 have done more to facilitate the adoption of measures 
 which shall set that important question at rest, upon a 
 footing advantageous to the community, and that shall be 
 safe and beneficial to the Establishment, and in every 
 respect desirable, than any other course that could have 
 been taken; for it would have been premature if the 
 Legislature had adopted any measure without the acqui- 
 escence of that important body, as no good could have 
 resulted from it. I am glad that the wisdom of the 
 General Assembly has been directed to this subject, and 
 that the result of its deliberations has been those important 
 resolutions (viz., the Veto Act) which were passed at the 
 last Meeting." 
 
 It is true that the Government of that day differed from 
 the present in political views, but on this very account, 
 say the Scotch, the latter might have felt itself the more 
 disposed to do what the former had omitted. 
 
 Shortly therefore to resume. The Veto Act was passed 
 not wantonly, but through necessity; not with any crafty 
 design, but to meet the emergencies of the moment ; not 
 with any assumption of a right to make arbitrary laws on 
 its own authority, but only to revive, and, at the same time, 
 to moderate the established law and practice, which had 
 
QUESTION EXAMINED. 37 
 
 been suppressed, not repealed; not from hierarchical 
 motives, but for the interest of the people ; not in haste, 
 but with moderation and forethought, and with the highest 
 legal advice and approbation ; not secretly, but in presence 
 and under cognisance of the representative of the Crown, 
 the Lord High Commissioner, and with public praise in 
 the House of Lords. 
 
 The Church's object was to do her duty in the best 
 way towards the State, the nation, herself, and her people, 
 and even, had she completely failed in her choice of means, 
 she would not have merited the treatment which she has 
 suffered. 
 
 But whether she did or did not fail will now be shown 
 in a brief examination of the Veto Act itself. 
 
SECTION II. 
 
 EXAMINATION OF THE PROVISIONS OF THE VETO ACT, AND 
 OF SOME CHARGES BROUGHT AGAINST IT. 
 
 THE Veto Act consists of two parts. The first announces 
 a principle, which the Church declares to be one of her 
 fundamental laws, namely, " that no pastor shall be intruded 
 on any congregation contrary to the will of the people.'* 
 The second contains certain provisions, through which the 
 Presbyteries are instructed to carry the above principle 
 into operation in each single case. 
 
 This principle, called the principle of Non-intrusion, was 
 not newly introduced by this Act, but has ever been looked 
 on as an essential one by the Church of Scotland, as in the 
 following part of this treatise will be shown. 
 
 The provisions above mentioned are a command of the 
 supreme Church Court to the subordinate ones, concerning 
 their proceedings in carrying out the principle. 
 
 The principle was considered unquestionable, unalter- 
 able, not to be given up, and inherent in the constitution of 
 the Scotch Church. 
 
 The provisions were a matter of expediency, better ones, 
 it was admitted, might be framed, they might be subjected 
 to deliberation, discussion, and alteration. 
 
 However unfortunately the unwarranted decisions of the 
 civil courts, and the transactions which followed them, have 
 irrevocably identified the retraction of these provisions with 
 the abandonment of the principle, which the Church could 
 not give up without also giving up her own constitution 
 
SCOTTISH CHURCH QUESTION EXAMINED. 39 
 
 and nature ; so that eventually no alternative has been left 
 to the Church but ingloriously to surrender herself, bound 
 by the fetters of these unwarranted decisions, or resolve on 
 the difficult, painful, but honourable course of bursting 
 these unjust fetters, and a free daughter of free ancestors to 
 quit her parental home as it began to assume the form of a 
 house of captivity. 
 
 The chief point which we have to consider, in order to 
 understand the character of these events, is the follow- 
 ing: 
 
 " Is the Church of Scotland right in maintaining, that 
 the principle of Non-intrusion in her own sense, that is, in 
 the simple and real sense of the word, is a fundamental law 
 of the Church, and has always existed as such?" 
 
 1. If she is manifestly and doubtlessly in the right, 
 then the treatment which she has received is manifestly and 
 doubtlessly unjust. 
 
 2. If she was in the right, but in such a manner that her 
 opponents could bondfide differ from her in their view of it, 
 then again she has been treated unjustly, but those who 
 did her injustice are so far to be excused, as they have 
 acted conscientiously, of which God alone can judge. 
 
 3. If she was manifestly and doubtlessly in the wrong, 
 she has not to complain of her treatment while striving to 
 introduce so important an innovation. 
 
 4. Were she in the wrong, but in such a manner that 
 she might have been led to her position bond fide by a 
 pardonable mistake, she cannot accuse her opponents ; she 
 has to lament her fate, but by no means does she deserve 
 the revilings which are heaped on her head by her adver- 
 saries. 
 
 The writer considers the second of these positions as 
 that supported by facts. 
 
40 
 
 SCOTTISH CHURCH 
 
 Before he proceeds to the proof, that out of the recog- 
 nised Scottish ecclesiastical and historical authorities, the 
 legitimacy of the principle of Non-intrusion may be satis- 
 factorily deduced, he will as shortly as possible investigate 
 the provisions of the Veto Act, in order that the reason, or 
 want of reason, of the complaints against it, may appear in 
 its true light. 
 
 The Provisions of the Veto Act. 
 
 A. The General Assembly had the intention agai 
 give force to a right of the congregations in the appoint- 
 ment of their ministers, which never had been entirely 
 abolished; as was testified by the very existence and 
 continuation of the Call, but which, owing to the 
 hierarchical presumption of the Moderate rulers, had been 
 depressed gradually to a mere empty ceremony. The 
 question was, whether this right should be restored in a 
 positive or a negative form ; that is to to say, whether the 
 General Assembly should make " the express consent" or 
 " the absence of dissent" on the part of the congregation, a con- 
 dition of the qualifiedness and admissibility of a presentee. 
 It had, in the writer's opinion, a well-grounded right, even to 
 the revival of the former of these forms, and, perhaps, if it 
 had simply laid claim to the enforcement of the Call in its 
 true sense and whole extent, the negative form, embodied in 
 the Veto Act, would have been readily granted as a compro- 
 mise. But the Church acted with sincerity and moderation. 
 The ascertainment of the consent of the congregation, 
 through the positive Call, would have very nearly approached 
 to popular election, and would have given to the people a 
 position towards patronage which the Church, out of loyal 
 fidelity to the State, would not permit. Therefore she 
 chose the negative form of the exercise of the congrega- 
 
QUESTION EXAMINED. . 41 
 
 tional right. The absence of protest was received as silent 
 consent, and thus a formal protest alone would arrest the 
 further progress in the ordinary proceedings. 
 
 B. Who is entitled to protest? or, in other words, who 
 is to represent the congregation in its unalienable eccle- 
 siastical right ? 
 
 The Church sought for competent representatives of the 
 congregation in this serious and important matter among 
 the male heads of families. She supposed, that if expe- 
 rience, maturity of judgment, and wisdom, are to be found 
 anywhere, it must be among these. She held that, if any 
 take sincere interest in the settlement of the future pastor, 
 the spiritual friend of the families, the consoler of the 
 people, the instructor of all, and especially of the children, 
 they would be found among this class of persons. 
 
 Admitting the view thus taken by the Church to be too 
 narrow ; admitting, as some people consider, that every 
 male communicant should have the right of voting; at all 
 events, the provision of the Church in this matter repels 
 the imputation of acting in a democratic spirit so often 
 made against her. 
 
 An impartial observer, comparing the abundant pro- 
 visions which the opponents of the Veto Act have proposed 
 in this respect, with the provisions of the Veto Act, will 
 receive from the latter an impression, as it were, of eccle- 
 siastical chastity. Superfluous liberality has been exhibited 
 in determining the extent of objection, both in the persons 
 objecting and in the subjects of objection. But certainly, 
 if the opinion of the Presbytery, or finally, of the Court of 
 Session, can overrule any protest on the part of the con- 
 gregation, it will cost little to grant the utmost scope and 
 liberty both as regards objectors and objections. 
 
 Justly did not the Church consider every young man of 
 
42 . SCOTTISH CHURCH 
 
 twenty-one years of age as qualified to have a voice on such 
 occasion. 
 
 Justly has the Church rejected, as regards this point, 
 certain distinctions between man and man, which have no 
 relation at all to the kingdom of God : for instance, that 
 between proprietors of land in the parish and those who 
 are not such ; between persons said to be educated and 
 those supposed not to be so ; and other similar distinc- 
 tions, which would have introduced only an artificial 
 machinery without affording a real test. 
 
 C. These heads of families must be members of the 
 congregation. By this provision is secured, as far as human 
 prudence can do so, the voter's knowledge of the wants of 
 the congregation and their interest in the proceedings. 
 The Church here shows herself more moderate and true 
 to herself than those who grant the right of objection to 
 everybody, without regarding whether or not he belong 
 to the congregation, to the Presbyterian, or even to the 
 Christian Church, and who lose sight of the principle of 
 deciding ecclesiastical matters by majority of members of the 
 Church, which is in the genuine spirit of the Scotch Church. 
 
 D. Moreover, those heads of families must not only be 
 members of the congregation, but in full communion with 
 the Church. This secures, as far as a human provision 
 can do so, the sincerity of the interest which the objectors 
 take in the affairs of the Church. 
 
 E. Lastly, these heads of families must, on pain of 
 losing their right of protest, appear, if required, before 
 the Presbytery, one by one, and personally and solemnly 
 declare, that they are not influenced in their decision by 
 any party interest or any foreign motive, but exclusively 
 by the conscientious consideration of the spiritual interests 
 of themselves, their families, and the congregation. 
 
QUESTION EXAMINED. 43 
 
 By means of these measures the Church believed to 
 have protected the purity of protestation, as far as human 
 power can do so, and did not see what further curb it could 
 place on a congregation which should find occasion to 
 protest against a presentee. 
 
 The provisions of the Veto Act, therefore, are to this 
 effect, that in order that no minister shall be intruded on 
 a congregation against its will, the Presbytery shall reject 
 any presentee as unqualified, of whom the majority of male 
 heads of families, members of the congregation, and in full . 
 communion with the Church, shall declare, that conscien- 
 tiously considering the spiritual interests of themselves, 
 their families, and congregation, they wish him not to be 
 appointed their minister. 
 
 The fact of this dissent being declared by the majority, 
 and this fact alone, shall be able henceforward to disqualify 
 a presentee for this parish in the judgment of the Pres- 
 bytery. 
 
 Such is the Veto, concerning which it has been 
 declared, even by noble-minded persons, that rather than 
 consent to it they would part a right of free election 
 to the people, and which has been thought in many places 
 almost as absurd and inexpedient as to give a class in an 
 infant-school the right of protesting against a teacher 
 which should be appointed over them by a board of 
 education. 
 
 The chief unreasonableness and intolerableness of the 
 measure is said to consist in the point, that the mere act of 
 dissent in a congregation is to be regarded, whilst, of 
 course, only good and valid reasons ought to confer such a 
 right, and reasons which can be stated and criticised. 
 Under this provision, say its opponents, the most obstinate 
 and prejudiced narrowness will take refuge. 
 
 The writer grants at once, in his defence of the Veto Act, 
 
44 
 
 SCOTTISH CHURCH 
 
 that it might very easily elicit this imputation ; but, on the 
 other hand, he thinks that it little deserves it. 
 
 The Veto Act was never intended to regulate the whole 
 complication of the circumstances connected with the 
 appointment of a minister, but to consider one of them 
 alone. 
 
 The Scotch Church considers, and apparently with 
 reason, that three conditions are requisite under ordinary 
 circumstances to its being lawfully, worthily, and fitly 
 served by a minister. 
 
 1. He must be lawfully presented. 
 
 2. He must possess the general qualifications for appoint- 
 ment in the Church. 
 
 3. He must possess the special qualifications for the 
 particular congregation over which he is about to be 
 appointed. 
 
 The first of these conditions, if in doubt, is to be 
 decided by the civil court. 
 
 The second is to be judged of by the Church courts. 
 
 The third is, according to the Veto Act, to be determined 
 by the congregation. 
 
 But here perhaps the Veto Act has not been explicit 
 enough ; and this defect in its framing is the origin of the 
 dislike and misunderstanding which it has met with. It 
 has proceeded summarily, where it should have observed 
 distinctions. 
 
 Nou-acceptableness (default in the third condition) is 
 justly considered by the Scotch Church a positive ground 
 of disqualification in a presentee. But she was proceeding 
 too summarily to make this dependant in a general manner 
 on the feeling and conscience of the congregation. The 
 unacceptableness of a presentee may have two kinds of 
 causes ; it may either arise from something in the presentee, 
 or it may arise from something in the congregation. In 
 
QUESTION EXAMINED. 45 
 
 the latter case alone does it deserve to be treated and 
 respected as a pure matter of conscience; whilst in the 
 former case it is a subject of consideration which prac- 
 tically perhaps ought to be withdrawn entirely from the 
 care and control of the Church courts. The writer 
 does not mean to say, that in a Church like that of 
 Scotland, which possesses so excellent a congregational 
 organization, it would be a monstrous extravagance to allow 
 the acceptableness of a presentee to be determined sum- 
 marily even by the mere " Yes" or " No" of the congre- 
 gation, but he considers this abrupt form of the Veto as not 
 absolutely required by the organism of the Scotch Church. 
 The affairs of the Kirk will not always present the aspect 
 they have exhibited so often during the ascendancy of the 
 Moderates, that of active spiritual life in the congregations, 
 and spiritual death in the Church courts. This was a 
 passing historical state; we are not to conclude that the 
 spirit of intrusion will always reign in the Church courts, 
 on that state therefore no enduring measure ought to be 
 founded. The Veto Act is perfectly right in its principle ; 
 but its provisions were not free from a harshness, which 
 showed traces of the excitement and exigences of a passing 
 historical moment. 
 
 The provisions of the Veto Act were intended to secure 
 to a congregation its just right concerning the acceptable- 
 ness or non-acceptableness of a presentee with regard to 
 causes arising in its own peculiarities of feeling, and for 
 this they are well calculated; but they have not confined 
 themselves to this ; they have included also in their sphere 
 the causes of acceptableness or non-acceptableness arising 
 in personal peculiarities of the presentee; and in doing 
 this they have subjected themselves to be combated on a 
 ground which did not belong to them. It ought to be 
 
46 SCOTTISH CHURCH 
 
 understood clearly that the conscientious dissent of a con- 
 gregation, and the rejection of a presentee on reasons ad- 
 mitting of discussion, are not things related to each other 
 as imperfect and perfect, as indistinct and distinct, as 
 ungrounded and grounded, but that they are things spe- 
 cifically different. The former, the conscientious dissent, 
 is grounded also, and upon a reason most to be respected, 
 but one, which, on account of its purely spiritual and com- 
 prehensive nature is raised above the province of common 
 juridical discussion and argument. The pastoral relation- 
 ship is a thing of a purely spiritual kind, founded on the 
 feeling of adaptation of one party to the other in the 
 Lord. Whoever in his life has seen a worthy and holy 
 relationship between a Christian pastor and his flock will 
 be shocked at the barbarism of esteeming such a thing 
 lightly. It is the very blossom of the Church. No 
 Church court in the world would deserve to exist if it 
 did not prize as its highest and most glorious duty the 
 cherishing of this relationship to the whole extent of its 
 power; all the rights to which the leaders of the Church 
 lay claim have no other title to existence than that of 
 enabling their possessors the more effectually to discharge 
 this duty towards the people of Christ, a duty, con- 
 cerning which even the Apostle Paul said of himself, 
 that neither he (nor any other) was the Lord of the 
 conscience of his Christian brethren, but the promoter of 
 their joy. 
 
 Instead of anything the writer could advance on his 
 own part concerning the real meaning of a conscientious 
 protest of a congregation, and the desirableness of respecting , 
 it, he prefers to give the views and words of Dr. Chalmers 
 about it. The experience and wisdom of this distinguished 
 individual place him in a position to judge clearly and pro- 
 
QUESTION EXAMINED. 47 
 
 foundly of a subject which he himself had much to reflect 
 upon in framing the Veto Act. He says, in the year 1833, 
 before the General Assembly : 
 
 " But the last element in the composition of this affair 
 is the power of the Church. And here the question at 
 once occurs, whether shall the objection taken to the pre- 
 sentee by the majority of the people be submitted for 
 review to the Presbytery, as by the acts of 1649 and 1690, 
 or shall it be held conclusive, so as without judgment by us 
 to set aside the presentation ? My preference is for the 
 latter, and I think that I can allege this valid reason for it. 
 The people may not be able to state their objection, save 
 in a very general way, and far less be able to plead and to 
 vindicate it at the bar of a Presbytery, and yet the objection 
 be a most substantial one notwithstanding, and such as 
 ought, both in all Christian reason and Christian expe- 
 diency, to set aside the presentation. I will not speak of 
 the moral barrier that is created to the usefulness of a 
 minister by the mere general dislike of a people ; for this, 
 though strong at the outset, may, literally a prejudice or a 
 groundless judgment beforehand, give way to the experience 
 of his worth, and the kindness of his intercourse amongst 
 them. But there is another dislike than to the person 
 of a minister a dislike to his preaching, which may not 
 be groundless, even though the people be wholly inca- 
 pable of themselves arguing or justifying the grounds of it, 
 just as one may have a perfectly good understanding of 
 words, and yet, when put to his definitions, not be at all 
 able to explain the meaning of them. This holds pre-emi- 
 nently of the Gospel of Jesus Christ manifesting its own 
 truth to the consciences of men, who yet would be utterly 
 nonplussed and at fault did you ask them to give an 
 account or reason for their convictions. Such is the adapt- 
 ation of Scripture to the state of humanity; an adaptation 
 
48 SCOTTISH CHURCH 
 
 which thousands might feel, though not one in the whole 
 multitude should be able to analyse it. When under the 
 visitations of moral earnestness, when once brought to 
 entertain the question of his interest with God, and con- 
 science tells of his yet uncancelled guilt, and his yet un- 
 provided eternity, even the most illiterate of a parish 
 might, when thus awakened, not only feel most strongly, 
 but perceive most intelligently and soundly the adjustment 
 which obtains between the overtures of the New Testament 
 and the necessities of his own nature ; and yet, with a con- 
 viction thus based on the doctrines of Scripture and the 
 depositions of his own consciousness, he, while fully com- 
 petent to discern the truth, may be as incompetent as a 
 child to dispute or to argument it; and when required to 
 give the reasons of his objection to a minister at the bar of 
 his Presbytery, all the poor man can say for himself might 
 be that he does not preach the Gospel, or that in his 
 sermon there is no food for his soul. It were denying the 
 adaptation of Christianity to human nature to deny that 
 this is a case which may be often and legitimately realized. 
 With a perfect independence on the conceits and the follies, 
 and the wayward extravagance or humours of the populace, 
 1 have, nevertheless, the profoundest respect for all those 
 manifestations of the popular feeling which are founded on 
 an accordancy between the felt state of human nature and 
 the subject-matter of the Gospel; and, more especially, 
 when their demand is for those truths which are of chief 
 prominency in the Bible, and, let us add, in the confessions 
 and catechisms of our Church, and their complaint, their sense 
 of destitution, is from the want of a like prominency in the 
 sermons. But in very proportion to my sympathy and my 
 depth of veneration for the Christian appetency of such 
 cottage patriots, would be the painfulness I should feel 
 when the cross-questionings of a Court of Review were 
 
 
QUESTION EXAMINED. 49 
 
 brought to bear upon them; and the men, bamboozled and 
 bereft of utterance by the reasonings which they could 
 not redargue, or, perhaps, the ridicule which they could not 
 withstand, were left to the untold agony of their own 
 hearts, because within the establishment which they loved 
 they could not find in its Sabbath ministrations or week- 
 day services the doctrine which was dear to them. To 
 overbear such men is the highway to put an extinguisher 
 on the Christianity of our land, the Christianity of our 
 ploughmen, our artisans, our men of handicraft, and of 
 hard labour; yet not the Christianity theirs of deceitful 
 imagination or of implicit deference to authority, but the 
 Christianity of deep, I will add, of rational belief, firmly 
 and profoundly seated in the principles of our moral 
 nature, and nobly accredited by the virtues of our well- 
 conditioned peasantry. In the olden time of Presbytery 
 that time of scriptural Christianity in our pulpits and 
 of psalmody in all our cottages, these men grew and 
 multiplied in the land; and though derided in the heart- 
 less literature, and discountenanced or disowned in the 
 heartless politics of other days, it is their remnant which 
 acts as a preserving salt among our people, and which 
 constitutes the real strength and glory of the Scottish 
 nation." 
 
 The author begs here to introduce, in addition, the 
 words upon this point, with which Dr. Chalmers concluded 
 his speech on the principle of spiritual independence, 
 before the General Assembly of the year 1839. He says 
 there : 
 
 " Before sitting down, I feel a great inclination to say 
 one word on the antipathy of high and cultivated intellect 
 to our consideration of the mere fact of a conscientious 
 dissent, apart from any pronounced reasons that might be 
 given for it. There is no principle, I believe, which 
 
 
50 
 
 SCOTTISH CHURCH 
 
 admits of being more thoroughly philosophized, none which 
 could more thoroughly stand the inspection of a most 
 discriminating and profound mental science. But this is 
 obviously a topic of too great unwieldliness for the closing 
 sentences of a speech ; and I shall therefore confine myself 
 to one very brief illustration. 
 
 " Many years ago I spent a few days, towards the close 
 of his life, with that venerable Christian patriarch, Dr. 
 Davidson, of Edinburgh, whose heavenward aspirations, 
 whose very looks of love and grace celestial, apart from 
 language altogether, bespoke the presence of a man who 
 felt himself at the gate of his blissful and everlasting home. 
 It is with the remembrance of him that I associate an 
 anecdote which struck me forcibly at the time, of an 
 illiterate female in humble life, who applied for admission 
 to the Sacrament, but who, at the customary examination, 
 could not frame one articulate reply to a single question 
 that was put to her. It was vain to ask her of the offices 
 or mediation of Christ, or of the purposes of his death. 
 Not one word could be drawn out of her ; and yet there was a 
 certain air of intelligent seriousness, the manifestations of 
 right and appropriate feeling, a heart and a tenderness in- 
 dicated, not by one syllable of utterance, but by the natural 
 signs of emotion which fitly responded to the topics of the 
 clergyman, whether she was spoken to of the sin that 
 condemned her, or the Saviour that atoned for her. Still, as 
 she could make no distinct reply to any of his questions, 
 he refused to enrol her as a communicant, when she, on 
 retiring, called out in the fulness of her heart, c I cannot 
 speak for him, but I could die for him.' The minister, 
 overpowered, handed to her a sacramental token ; and with 
 good reason too, though not a reason fell in utterance from 
 her. And so, too, with the collective mind of many a 
 rustic congregation, that thinks aright and feels aright, 
 
QUESTION EXAMINED. 51 
 
 without one propounded reason which, if put into a record, 
 would adequately represent the whole truth of sentiment 
 that kindles in their bosoms, and lights up there a clearness 
 of perception, as well as sensibility ; which, however 
 beyond the reach of their expression, or of our analysis, 
 gives all the authority of justice to their collective voice. 
 To confine the Presbytery to the reasons of these men, 
 and debar us from all the conclusions grounded on direct 
 sympathy with the men themselves, were to do them the 
 grossest injustice. We stand in dread of it as a prelude to 
 that ecclesiastical policy which, in other days, unchris- 
 tianized the majority of Scottish parishes, to that shameful 
 tyranny under which the sacred prerogatives of conscience 
 were trampled under foot, and more than half the Christian 
 worth and piety of the land were driven forth of the 
 tabernacles of our fathers." 
 
 After the consideration of the contents and the spirit of 
 the Veto Act in the foregoing pages, a few objections 
 which have been brought against it will be easily valued 
 according to their proper worth. 
 
 First Objection. 
 
 That it would destroy, if practically carried out, the 
 right of the patron, inasmuch as the minister appointed 
 would be, in most cases, not that which the patron wished, 
 but that which the congregation wished; and that thus, 
 virtually, popular election would be established. 
 Answer. 
 
 If the provisions of the Veto Act had had free play, 
 their results would have been as follows : 
 
 Each minister of the Scotch Church would have owed his 
 place, just as before the passing of the Act, to a patron ; he 
 would have been recognised by the Church court as a 
 
 E 2 
 
52 SCOTTISH CHURCH 
 
 qualified person, and received by his congregation with 
 good- will and confidence ; and no one who did not unite 
 these three conditions, would become a minister of the 
 Church. Is not this a desirable result ? 
 
 To repeal the Veto Act was to destroy a powerful 
 means of securing the Presbyteries from dishonest obse- 
 quiousness towards powerful patrons, who would make use 
 of their right of patronage for private interests rather than 
 for the interests of the people ; and henceforward many a 
 congregation will have again to submit to spiritual ill-treat- 
 ment with a sigh, as in bygone times. 
 
 The above objection rests, like many others which are 
 made against the Scottish Church, on abstract fears, which 
 vanish before an intelligent mind on the least examination. 
 
 Let us consider what must happen before the above 
 dreaded result could take place. 
 
 1. It would be necessary that a congregation should 
 have secretly or avowedly some certain person in contem- 
 plation, whom it should desire as minister against the 
 choice of the patron. 
 
 2. That in this point the congregation, or the majority 
 of it, should be unanimous. 
 
 3. That they are unanimously determined to obtain their 
 chosen favourite at whatever cost, even at that of false 
 declarations to the Presbytery, several times repeated 
 with solemnity, a proceeding almost to be classed with 
 perjury. 
 
 4. That it should declare its unreasonable veto against 
 one presentee of the patron after the other, until, if possible, 
 the patron should find no other person to present, except 
 the one whom the congregation desires. 
 
 5. That the Presbytery should look on this endless 
 frivolous game with indifference or even with pleasure. 
 
QUESTION EXAMINED. 53 
 
 6. That neither the minority, the patron, nor the Pres- 
 bytery, should possess ingenuity enough to unmask the 
 malicious caprice of the congregation, &c. 
 
 Who does not see in all this the emptiness, which abstract 
 consideration often presents. The protesting must have 
 an end; and, at all events, the candidate, with whom it 
 ends, is a presentee of a patron. Besides, it is in the 
 interest of the congregation that its minister should be 
 appointed as soon as possible. 
 
 Second Objection. 
 
 That the Veto Act would practically destroy patronage 
 altogether, and place the choice of the minister in the hands 
 of the Presbyteries. 
 
 Answer. 
 
 This charge is brought forward among others by a 
 learned Scotch lawyer, who generally indulges in suspicious 
 and unfair imputations against the Church, and whose letter 
 published on the matter, is full of untrue and inconsiderate 
 statements. If the matter were not so serious, one might 
 bring together the authors of the first objection, and the 
 authors of the second, and ask them to conciliate their 
 mutual contradictions, in order that the objection, which 
 they finally considered right, might be answered. The 
 unfortunate Church of Scotland can please nobody. For 
 some she is too republican, for others too aristocratic, for 
 some too lax, for others too hierarchical. 
 
 As for the charge itself, it might perhaps deceive at first 
 sight, but coming from a Scotch lawyer, it is rather sur- 
 prising, and exhibits either ignorance or concealment of 
 truth. 
 
 It is a law in Scotland, that the patron who has failed to 
 present a qualified candidate within the first six months of 
 the vacancy of the charge, shall, pro hac vice, lose the right 
 
54 
 
 SCOTTISH CHURCH 
 
 of presentation, and that the minister shall be appointed by 
 the Presbytery, "jure devoluto" 
 
 Now, opponents say, that if the Veto disqualifies the 
 presentee, and the congregation gives a Veto twice or three 
 times, the six months will pass over and the Presbytery 
 will appoint the minister "jure devohtto" 
 
 Not to speak of a number of abstract suppositions in- 
 volved in this objection as in the former, suppositions which 
 in reality amount to nothing, the substance of the accusa- 
 tion rests, as is said before, on either ignorance or an 
 express concealment of the whole of the Scottish law on 
 this point. For, from the moment that the presentation is 
 lodged with the Presbytery, the time allowed by law ceases 
 to be reckoned, and all that elapses between this moment 
 and the final rejection of the presentee counts for nothing : 
 so that, granting the entire want of conscientiousness both 
 in the Presbytery and the congregation, the patron could., 
 by presenting a succession of new candidates, if he chose, 
 consume a whole century, so that in the end, neither he, 
 nor the Presbytery, nor any presentee, would outlive the 
 downfall of his right. 
 
 Third Objection. 
 
 That the Veto Act would raise a clerical body, which 
 would rather aim at pleasing popular taste, than at acquir- 
 ing a true theological education. 
 
 Answer. 
 
 This is refuted by facts, on comparing the Moderates 
 and Evangelicals. With the latter is, beyond all doubt, the 
 preponderance of knowledge, talent, and zeal, for the 
 highest interests not only of the Church, but of science and 
 humanity too. 
 
 The Veto Act has, during the five years of its existence, 
 even as its opponents admit, worked very happily. If the 
 
QUESTION EXAMINED. 
 
 55 
 
 writer's memory do not entirely fail him, out of several 
 hundred places, to which ministers have been appointed in 
 this time, the congregations have not reclaimed their right 
 but in twelve instances. 
 
 On the whole, the Veto Act is so congenial to the spirit 
 of the Scotch Church, that, if it had been permitted 
 time to establish itself in use and practice, all the incon- 
 veniences, with which it has been charged, would rather 
 have been unfelt in its operation. 
 
 
SECTION III. 
 
 HISTORICAL PROOF OF THE LEGALITY OF THE PRINCIPLE 
 OF NON-INTRUSION. 
 
 
 Introductory Remarks. Having, in the foregoing pages, 
 considered the provisions of the Veto Act in detail, it is 
 incumbent on the author to examine into the legality of the 
 principle^ which was to be carried out by them. 
 
 In the year 1841 the Scotch Church solemnly repeated 
 her determination " to assert and maintain the great and 
 fundamental principle of Non-intrusion ; " but at the same 
 time she declared, that "she was willing, as she had 
 hitherto been, to consider any modification that might be 
 proposed for carrying the principle into effect." 
 
 Since the year 1839, when the repeal of the Veto Act 
 was demanded of the Church, under the charge that it was 
 illegal, this repeal has been identified, through the course 
 taken by the civil courts, partly with the abandonment of 
 the principle of Non-intrusion, partly, as will appear in the 
 sequel, with the resignation of the spiritual independence 
 of the Church in general. 
 
 On this account, and on this account alone, and by no 
 means through hierarchical defiance, the Church found her- 
 self conscientiously unable to pass an unconditional repeal 
 of the Veto Act. 
 
 She petitioned the Legislature to frame a measure, re- 
 conciling these two fundamental principles of her constitu- 
 tion with the conditions of an Establishment. 
 
 Through whose fault it might have been, we will not 
 
SCOTTISH CHURCH QUESTION 
 
 now inquire, but no measure was agreed upon, 
 quently, the dis- establishment of the Scotch Church in 
 May last was an event, which as necessarily followed, as 
 any phenomenon of nature follows its proper causes. 
 
 Meanwhile, unjust people, but more so, people ignorant 
 of the matter, have loaded the Scotch Church, without 
 limit, with charges of indecent opposition to law and order, 
 a reproach which, on more minute examination, rather falls 
 on the civil authorities. This would remain true, even if 
 the Scotch Church had been mistaken in supposing that 
 the principle of Non-intrusion had been from of old one of 
 her fundamental laws; for since 1839 the question has no 
 longer been, whether the principle of Non-intrusion be 
 legal or not, but whether the Church had an independent 
 jurisdiction in spiritual matters, or should be subjected, 
 even in these, to the control of the civil court. 
 
 Even admitted, the Church had committed an error 
 within her own province, this would not entitle the civil 
 authorities to a perfectly unwarrantable invasion into that 
 province ; but, indeed, the sympathy for the Church would 
 be weakened, if she stood before God and her own people 
 guilty of having occasioned this invasion by such an awful 
 mistake in its inherent principles and rights. 
 
 The following question is, therefore, of importance : 
 " Is the principle of Non-intrusion, in the sense of the Free 
 Church, one newly introduced or not?" 
 
 The writer believes, that an impartial person could 
 hardly be found, who would not recognise this principle in 
 the spirit and tendency of the Scotch Church, and if it un- 
 fortunately be not formally expressed, this could only arise 
 from its being clearly and universally understood as a 
 matter of course. 
 
 But this alone would not suffice. The recent Seceders 
 might be perfectly in the right in spirit and in justice, but 
 
58 SCOTTISH CHURCH 
 
 if they were not in the right before the formality of the law, 
 their cause would have but a poor chance with the lawyer 
 and statesman. These are inclined in matters of this kind, 
 in which they are themselves parties, to confine themselves 
 to the letter of the law as that magic circle, in which they 
 feel themselves secured against the evil spirit of supposed 
 innovation. 
 
 However, the writer is of opinion, that the cause has 
 nothing to fear on the score of legality ; but if there be a 
 part of his treatise, of which he particularly feels the diffi- 
 culty, it is this. He has nothing to bring forward to meet 
 the penetration of the learned lawyer, but the general 
 critical understanding of an educated mind, and that, 
 which in this case may prove perhaps of peculiar assistance 
 to him, the impartiality of a stranger in following the 
 various stages of development of a historical subject. 
 
 In the first place, let us endeavour to point out the 
 exact nature of the principle of Non-intrusion. By Non- 
 intrusion is meant, not obliging the people to receive a 
 minister against their will. But the opponents of the 
 Free Church are prone to say, " We, also, are Non- 
 intrusionists, only we require, that the will of the people 
 shall not be arbitrary caprice, as you wish to have it, not 
 a mere humour, which cannot be expressed in words, and 
 which rests on no solid reasons, but of which the mere 
 existence confers a right ; we require, that the will of 
 the people shall rest on reasonable grounds, in order that 
 they may be stated, and the Presbytery may judge of them. 
 Thus we desire to maintain the principle of Non-intrusion 
 reasonably understood and defined, and in this sense only 
 we contend, that the Scotch Church has conceived it in all 
 times ; you therefore are innovators." 
 
 Such a statement has manifestly much plausibility, and 
 the Intrusionists in their pamphlets and speeches consider 
 
QUESTION EXAMINED. 59 
 
 that they render it quite unanswerable, if they prove by 
 documents, that the Church courts have always acted as 
 judges of stated reasons of protesting congregations. 
 
 To the writer the shout of victory of the Intrusionists 
 seems rather premature ; he thinks, that the Non-intru- 
 sionists might answer in some such words as these : 
 
 " Let us not play with words in such a serious matter. 
 A right, which we are only to possess under the condition, 
 that every single case of its being exercised shall be sub- 
 jected to the arbitration of a third party, is, properly 
 speaking, no right at all. We include under the principle 
 of Non-intrusion, that the conscientious dissent of an 
 ecclesiastically unblameable congregation shall be an 
 unconditional barrier against the appointment of a minister, 
 but you hold, that this barrier shall only be effectual under 
 the condition, that the Presbytery will allow it. You 
 maintain, that if a congregation cannot be induced by a 
 Presbytery to withdraw its conscientious declaration against 
 a minister, but at the same time be incapable of giving in 
 reasons for this declaration, in which the Presbytery can, 
 will, or must sympathize, that the latter be entitled to induct 
 the minister contrary to the wish and will of the people. 
 This right of the Church courts we deny altogether, and 
 consider it unreasonable, un- Protestant, and more especially 
 un-Scottish. We conceive that when a minister comes to 
 a congregation, that he does not come like a missionary to 
 the Heathen, where he has first to collect and form a 
 congregation- In every well-ordered Protestant Church, 
 and particularly in the Scotch Church, he comes to a 
 community of persons, who, as regards religious matters, 
 are to be considered of age, who stand with him in 
 brotherhood, founded on the same Word of God and the 
 same faith, who have the right to be esteemed as 
 Christian men, and as persons capable of knowing and 
 
60 SCOTTISH CHURCH 
 
 protecting, on the responsibility of their own conscience, the 
 spiritual interests of themselves, their families, and the 
 congregation which they represent. Concerning this they 
 are entitled to exercise judgment. If they judge wrong- 
 fully, we grant that it is a great evil, but the blame falls on 
 their own consciences, not on those of the Presbytery. Do 
 the Presbyteries and patrons always necessarily judge right- 
 fully and wisely ? The bitter experience of the last century 
 may answer this question I 
 
 " Our affair with you stands thus : If you tell us that our 
 principle of Non-intrusion has no foundation in ,the laws 
 and constitution of our Church, you have not merely to 
 prove that the congregations have always been obliged to 
 state reasons for their dissent, to be judged of by the 
 Church courts; because such friendly Christian dealings 
 and mutual explanations between the Christian people and 
 their Christian rulers are not only not excluded by our 
 views, but entirely and perfectly congenial to the spirit 
 of our Presbyterian Church. But what you have to prove 
 is this, that the Scotch Church has declared, that the right 
 of her Church courts to fetter together a blameless, 
 unwilling, distrusting, and conscientiously protesting con- 
 gregation, with a disliked parson, not to the blessing but to 
 the calamity of a Christian people, is compatible with God's 
 Word, with Christian liberty, and with Scotch Protestantism. 
 If you can prove that this has been the law or the lawful 
 practice of the Scotch Church, then we, with our idea of 
 Non-intrusion, will own ourselves legitimately defeated, 
 and shall not lament our fate at being obliged to withdraw 
 from a Church in which we cannot establish this principle 
 of Non-intrusion as the legitimate one, which, though not 
 recognised in the Established Church of Scotland, is never- 
 theless, in our conscientious conviction, an essential one in 
 the Church of Christ. In this case we have bona Jide 
 
 
QUESTION EXAMINED. 61 
 
 hitherto mistaken our liberties and rights; we have now 
 discovered our error, we are obliged to separate from you 
 in order to realize amongst us a form of community, in 
 which that general Christian congregational right is acknow- 
 ledged, for the maintenance of which we have felt con- 
 scientiously bound to strive by every legitimate means." 
 
 But if it should appear that the principle of Non- 
 intrusion, in the sense of the Free Church, has ever been 
 not only the tendency, sense, and opinion of the Scotch 
 Church, but is exhibited in her standards, public docu- 
 ments, and authoritative writings, and that either the 
 Scotch Church has not been thoroughly known, or if 
 known, that a new line of proceedings with her has been 
 considered necessary, the cause of the Free Church will be 
 won, and the great injustice which has been done to her 
 will be rendered evident and striking. 
 
 The misfortune in treating the Scottish Church question 
 has been, that it has always been conceived and considered 
 either abstractly according to general ideas of ecclesiastical 
 polity and right, or concretely only according to English 
 views, whilst it is a concrete and positive Scottish one. 
 Still the writer of this treatise does not intend to designate 
 by the specific Scottish character of the whole question, 
 that the Scottish Church, with her ideas of congregational 
 right and Non-intrusion, is entirely isolated, and constitutes 
 something unheard of; oh no ! one might, on the contrary, 
 rather anticipate a priori, that something in itself reason- 
 able and Christian would have found from of old its. place 
 and time in Christendom to realize itself. In Scripture 
 and in the four first centuries of the Church, the principle 
 of Non-intrusion is evidently a tacit postulate. In the 
 Roman Catholic Church it became powerless in the same 
 proportion as the principle of the passiveness and power- 
 lessness of the laity was established. The nearer a branch 
 
62 SCOTTISH CHURCH 
 
 of the Church approaches to the Roman Catholic in spirit 
 and principles, the more passive and denuded of right and 
 judgment are the congregations in ecclesiastical matters. 
 The Scotch Church being the farthest removed of all the 
 Churches of the Reformation from the Romish, will 
 naturally have the tendency the most to prize the rights 
 and spiritual activity of the congregation. Herein, as 
 appears to the writer, she has a task to perform of great 
 importance to the Protestant world in general, which the 
 superficial observer may pass by unnoticed, but which a 
 more profound historical eye finds distinctly recognisable. 
 But the writer does not wish to raise sympathy for the 
 Free Church of Scotland from the field of the future and 
 (for the present) of mere probabilities; therefore he will 
 return willingly to the firm ground of reality, and requests 
 his kind reader to accompany him to the armoury, out of 
 which the Free Church of Scotland finds her good weapons 
 of defence. 
 
 SCOTTISH AUTHORITIES. 
 
 The writer is obliged to confine himself to the most 
 important and decisive of these. 
 
 
 I. 1567. 
 
 The First Book of Discipline. 
 
 Let us go back to the earliest authorities. 
 
 John Knox, with four other Scotch Reformers, received 
 the commission in 1567, after the Reformed Church was 
 established in Scotland by law, to draw up a sketch of a 
 constitution for it. He did this in "The First Book of 
 Discipline." In this he gives (head iv., chap. 4, sect. 2, 4, 
 8) the congregation the right of electing their minister. 
 This right of course includes the principle of Non-intrusion. 
 For if the congregation can choose for itself, no minister 
 
QUESTION EXAMINED. 63 
 
 can be intruded on it against its will, as Dr. George Cook 
 himself, the leading man of the Moderate party, says in his 
 evidence before the Parliamentary Committee on Patronage 
 (p. 31 6):- 
 
 " In it (the First Book of Discipline ') the election of the 
 minister was given to the people; that implied certainly, 
 that there was to be nobody intruded into the Church." 
 
 The right of election contains much more than the right 
 of the Veto, and it may be laid down as an axiom to be 
 borne in mind, in the following explanation, that all 
 authorities which speak in favour of the right of election, 
 speak eo ipso in favour of the right of the Veto. For when 
 a congregation chooses one person, it virtually exercises a 
 right of veto against all those which it does not choose, 
 whilst by the Veto Act it does this against one alone. 
 That in the former case it exercises the Veto tacitly, and 
 in the latter expressedly, alters nothing in the position, 
 that the right of election is a greater power than the right 
 of Veto. 
 
 "The First Book of Discipline" has indeed not been 
 ratified by the State, and, therefore, is of no value as a 
 legal authority, but its substance is transferred in maturer 
 form into "the Second Book of Discipline," called "the 
 Book of Policy," which, since 1581, as we shall see 
 afterwards, is one of the recognised standards of the Kirk. 
 However, " the First Book of Discipline " is important as 
 a testimony of the views of those men who are the Fathers 
 of the Scotch Church, and whose spirit is still preserved 
 in our days by their true sons. 
 
 " The First Book of Discipline " provides for the case, in 
 which a minister shall be appointed by the Church court 
 over a congregation, even against their will; but this can 
 only take place in a case of discipline. Moreover, it is a 
 measure calculated for this single case, and instead of 
 
64 SCOTTISH CHURCH 
 
 weakening the arguments of the Non-intrusionists, rather 
 strengthens and confirms them; just as when the civil 
 authorities deprive an individual or a corporation of their 
 rights on account .of their having forfeited them by some 
 illegal conduct, we are not to conclude that corporations or 
 individuals have no such rights at all really, but rather 
 that their abrogation pre-supposes their previous existence. 
 "The exception proves the rule." 
 
 II. 1581. 
 
 The Book of Policy ; or, the Second Book of Discipline. 
 
 This was drawn up by Andrew Melville and other 
 Reformers, and was solemnly ratified by the Scottish 
 Church in 1581, and received among its standards. 
 
 It contains (in chap, iii., sect. 4 and 5, and in chap, xii., 
 part 9 and 10) the principle of Non-intrusion, in the sense 
 of the Veto Act, in the clearest terms. 
 
 It there says : " In this ordinary election it is to be 
 eschewed that any person be intruded into any of the 
 offices of the Church contrary to the will of the congrega- 
 tions," and " so that none can be intruded upon any con- 
 gregation, either by the prince or by any inferior person, 
 without lawful election (which then resided with the elders, 
 as patronage was abolished) and the assent of the people." 
 
 Remark I. 
 
 Calderwood relates, that when the book was ready, aftei - 
 it had been examined and ratified by the General Assembly 
 in 1578, it was laid before the King for his approval. His 
 Majesty ordered a conference to meet in Stirling; and 
 among other amendments demanded was the following : 
 That instead of the words " none shall be intruded contrary 
 to the will of the congregation" should stand the words, " if 
 the people have a lawful cause against his life and doctrine ;" 
 
 
QUESTION EXAMINED. 65 
 
 but the Church did not concede this, and adopted the book 
 in 1581 with known and express rejection of this amend- 
 ment. 
 
 Remark II. 
 
 It is true, and not surprising, that the book was not 
 then expressly ratified by King James. It is also true, 
 that at the union with England afterwards it was not 
 mentioned as a standard of the Church, as was the case 
 with the Confession of Faith, which was expressly acknow- 
 ledged in the Treaty of Union. But to conclude from 
 this that it is no standard of the Church at all, as certain 
 lawyers have done, is going too far, since the two Cate- 
 chisms, of which no one doubts the binding authority, are 
 also not named in the Treaty of Union. It is evident that 
 the Book of Policy perfectly legitimatizes the claims of the 
 Free Church; even Dr. Cook admitted this before the 
 Parliamentary Commission (p. 317), and in his observa- 
 tions on the Veto Act (p. 25, 27, &c.). Again, in 1838, 
 in his speech on spiritual independence before the General 
 Assembly, he even admits " it came to be a charter of the 
 Church" He qualifies this admission, however, inasmuch 
 as he says, that the Church acquiesced in the changes 
 which the law of the land afterwards effected. Fom this 
 follow some points which are important to be recollected for 
 the further development of the matter : 
 
 1st. That the change of the law of the Church was not 
 an effect of the acts of the State, but of the acquiescence 
 of the Church ; and, 
 
 2dly. That, in as far as it is not positively repealed by 
 the State, it is in full power as standard of the Church. 
 
 But some lawyers, opponents to the Church, have gone 
 still farther, they denied to the book all authoritative power 
 of granting a right. 
 
66 SCOTTISH CHURCH 
 
 In the opinion of the author, this is nothing but an 
 attempt, though a vain one, at a pretext to get rid of this 
 powerful and inconvenient document. The affair stands as 
 follows : 
 
 The Church, in those times of contention with a 
 Government which was inimical to her, declared (in 1581), 
 that the Book of Policy, although not ratified by the State, 
 was her standard of government and discipline, as the 
 Confession and the Catechisms were its standards of 
 faith, and the directory its standard of worship. All 
 Scottish ministers have since then been obliged to sign it ; 
 and the whole Scotch Church may be said to be only the 
 second book of dicipline realized and carried out. 
 
 The question now arose whether the Scottish Church, 
 thus constituted, should continue to exist or perish. Pro- 
 vidence decreed that she should continue to exist; for in 
 1592 the State recognised her as she then existed. The 
 celebrated Act of Parliament of 1649, which will be 
 hereafter considered, pre-supposes the authority of the 
 Book of Policy as a matter of course. 
 
 The argument of its opponents is, that as in the Act 
 of 1592 some parts of the book were expressly quoted, 
 all other parts, which were not expressly mentioned, were 
 rejected. 
 
 But this "argumentum ex silentio" proves too much, 
 and therefore becomes useless to its supporters, like an 
 overbent bow. 
 
 For that, which is quoted from the seventh chapter of 
 the book, relates only to one point, namely, the treatment 
 of the various objects before the various Church courts, a 
 matter, the regulation of which the King had especially at 
 heart, on account of certain circumstances closer to be 
 examined in the last portion of this treatise ; and therefore 
 the above assertion destroys itself by an inherent absurdity. 
 
QUESTION EXAMINED. 67 
 
 For if the Scotch had nothing secured to their Church 
 constitution and ecclesiastical privileges by law, except 
 what is expressly mentioned in the Act of 1592, it would 
 follow that they had a Presbyterian Church, in which there 
 were no acknowledged laws and rights concerning the 
 constitution of her Church courts; concerning the con- 
 stituents of these courts; concerning the peculiar Presby- 
 terian character of her ministry ; nothing concerning the 
 existence of three kinds of Church office-bearers, the 
 doctors, deacons, and ruling elders; nothing concerning 
 the power of the Church in ordaining, solemnizing matri- 
 mony, or even preaching. 
 
 For of all this there is no mention, neither in the Act of 
 1592 nor in the Confession, but in its proper place, namely, 
 the Book of Policy. 
 
 Is so powerful a historical reality as the Scottish Church 
 to be set aside by a few technical quibbles? Would not 
 her very existence speak, even if all her charters and 
 documents were to be placed under seal ? Is it right and 
 wise to make so light of revered documents, containing the 
 fundamental principles of an institution held in sacred right 
 by the nation? 
 
 Remark III. 
 
 Those opponents of the Free Church who recognise the 
 Second Book of Discipline, but do not wish to see in it 
 the severe Non-intrusion principle, grant that the assent 
 or consent of a congregation was required, but at the same 
 time maintain that this was subjected to the control of the 
 Presbytery. The answer is, that this is a begging of the 
 question. The document, simply considered, makes the 
 consent of a congregation as real a condition to the induc- 
 tion of a minister as the presentation on the part of the 
 eldership. If the consent is a real condition, the dissent 
 
 F 2 
 
68 SCOTTISH CHURCH 
 
 is a real obstacle. An example may serve as illustration 
 of the meaning of the word consent or assent in public 
 documents such as these, which is beyond dispute with 
 lawyers and parties of every kind in Scotland. The Act of 
 Parliament of 1707, in relation to the teinds or tithes, 
 gives the Court of Teinds the power of " transporting kirks" 
 but always " with the CONSENT of the heritors of three parts 
 out of four at least of the valuation of the parish" 
 
 Every body knows, that under this Act these heritors 
 have unfortunately exercised a very real Veto against the 
 building of new churches, and that the Court of Teinds 
 have not the power, nor have they made the attempt to 
 demand of the heritors to submit the reasons of their 
 refusal to their arbitration. The unqualified Veto of the 
 heritors has made its reality sufficiently palpable in the 
 matter of church extension. 
 
 Remark IV. 
 
 Impartiality demands the more minute investigation of 
 the grounds on which the opponents (mentioned in 
 No. III.) found their right of admitting a conditional 
 Veto. 
 
 In the year 1576, some years before the framing and 
 adopting of the Book of Discipline, the General Assembly 
 issued some articles " concerning the office of Visitors," in 
 which these visitors were empowered to appoint ministers 
 under the presentation of patrons and the consent of the 
 Synod ; " providing always, that the consent of the flock 
 where he shall be appointed be had, or else A REASONABLE 
 
 CAUSE BE SHOWED BY THEM WHEREFORE NOT." 
 
 We cannot blame the Intrusionists for asking that in the 
 interpretation of the Book of Policy the same point of 
 view should be taken which the Church herself took a few 
 years previously in her instructions to visitors. The 
 
QUESTION EXAMINED. 69 
 
 answer is : We must understand the matter in the spirit of 
 its connexion. These visitors, who travelled about to 
 regulate the disordered congregations, at a time when 
 Romanism and Protestantism had just torn themselves 
 asunder, were temporarily appointed, and required natu- 
 rally certain powers granted to them to supply the 
 wants of the Church, which was then arising. But 
 in order to take the point of view from which we 
 must consider the Church as a permanent institution, 
 we must not recur to temporary provisions adopted under 
 passing circumstances and for special practical objects, but 
 rather consider the solemn legislative measures calculated 
 for all times. The Book of Policy exhibits the spirit of 
 these. 
 
 But granting that the instruction for visitors of 1576 be 
 a rule of interpretation, the same objection would arise 
 with regard to the interpretation of that instruction itself; 
 namely, that the finding of the principle of intrusion in it 
 is a begging of the question. The protesting congrega- 
 tions have always the duty incumbent on them of giving 
 " reasonable cause" why they object to receive a minister, 
 but who would undertake to prove that the old Scottish 
 Church considered it an unreasonable ground, or a ground- 
 less dissent, when a congregation said, " this man does not 
 edify us, and therefore we do not wish for him." 
 
 III. 1596. 
 
 Notwithstanding the Act of Recognition passed through 
 necessity of 1592, the Government and patrons of that 
 time began to introduce trouble into the Church. There- 
 fore the General Assembly of 1596 passed the Resolution, 
 that " because by presentations many forcibly are thrust 
 into the ministry and upon congregations that utter there- 
 after that they were not called by God, it would be . pro- 
 
70 SCOTTISH CHURCH 
 
 vided that none seek presentations to benefices without the 
 advice of the Presbytery within the bounds whereof the 
 benefice lies; and if any do in the contrary, they to be 
 repelled as " rei ambitus." 
 
 If this be quoted by the Moderate Intrusionists against 
 the Free Church, as a proof that it has been in all times 
 in the spirit of the Scottish Church that the judgment of 
 the PRESBYTERY decide on the appointment or non-appoint- 
 ment of a minister, the answer is, that the Free Church 
 does not wish to take any real right from the Presbytery, 
 but to secure a real right to the congregation, and that the 
 two rights do not exclude each other. 
 
 On the contrary, why did the General Assembly require 
 that no candidate should request presentation of a patron 
 before having received the consent of the Presbytery, but 
 because " many forcibly were thrust in the ministry and upon 
 congregations" This document establishes rather the Non- 
 intrusion principle, both as regards the Church as a whole, 
 and each single congregation. What would this General 
 Assembly, which Calderwood characterizes as the last of 
 " the sincere General Assemblies " which he could speak 
 of, what would it have said in 1835 with regard to 
 Mr. Young and the Auchterarder case ? 
 
 . The next forty years of the Scottish Church, 
 extending to the so-called second Reformation, in 1 638, are 
 a troubled time. King James and his ill-advised successor 
 neglect no means to undermine the much-hated Presby- 
 terianism ; and who can be surprised that they succeeded 
 in inducing ignorant, or cowardly, or selfish men in the 
 Church herself to make temporizing declarations and com- 
 promises. The two Melvilles are the stars of those times. 
 Overwhelmed, apparently crushed down, imprisoned, 
 banished, these are the men who rallied the wavering ranks 
 
QUESTION EXAMINED. 71 
 
 of the" Church, and maintained the battle so long that the 
 Church and her rights ultimately triumphed. 
 
 Neither State nor Church ought to recur to these times 
 to look for precedents and information how to act at 
 present. The history of the General Assemblies of Perth 
 and Dundee (1597) is equally disgraceful for both parties, 
 and the Moderates and Intrusionists ought, at least, to be 
 Presbyterians, and Scotchmen enough to disdain any 
 apparent help from those times. 
 
 IV. 1638. 
 
 The celebrated General Assembly of Glasgow, under 
 the moderation of Henderson, overthrows all the machina- 
 tions and intrigues which had been carried on in the 
 Church during the previous forty years concerning the 
 point in question, and this by the declaration that " anent 
 the presenting either of pastors or readers, and of school- 
 masters to particular congregations, that there be respect 
 had to the congregation, and that no person be intruded 
 into any office of the Kirk contrary to the will of the con- 
 gregation to which they are appointed." 
 
 The Moderates say, in order to explain this Act as being 
 on their side, that the above passage recognises that when 
 a schoolmaster or reader be appointed, the people are to be 
 asked, and have an opportunity of bringing forward their 
 objections, but that the Church courts are to examine these, 
 and, if they see ground, set them aside, and appoint the 
 person. 
 
 To this the Non-intrusionists answer, " This is true, but 
 it does not affect our view; for, when closely examined, 
 we find this law to consist of two parts. The first declares 
 quite generally, that at the appointment of a minister, 
 reader, or schoolmaster, the congregation is to be heard. 
 The second, on the other hand, speaks especially of the 
 
7*J SCOTTISH CHURCH 
 
 minister, and expresses the principle of Non-intrusion; 
 for, of the three officers named, the minister alone fills an 
 office of the Church, for, as you well know, and will not 
 deny, readers and schoolmasters were declared by the 
 General Assembly, in 1580, not to be office-bearers of the 
 Church." 
 
 
 V. 1641. 
 
 In all probability it was Alexander Henderson himself, 
 but certainly one of the leading men of the Church, who 
 wrote in the year 1641 a book, which is rightly considered 
 an authentic exposition of the view and practice of the 
 Church in this matter as she then existed. This book, 
 entitled "The Government and Order of the Church of 
 Scotland," takes the principle of Non-intrusion to be 
 a matter of course. 
 
 Page 6. " The presentation on the part of the Elder- 
 ship (for the elders then possessed it) takes place with the 
 consent and goodliking of the people" 
 
 Pages 9 and 10. " On the day of ordination, the can- 
 didate is to be asked, among other things, 'concerning his 
 willingness and desire to serve the Lord Jesus for the good of 
 that people,' and the congregation is to be asked, < whether 
 they will receive him for their pastor, and submit themselves 
 unto his ministry in the Lord.' Then follows : * Both 
 having declared their readiness and mutual consent,' &c.; 
 and then come the ordination and induction." 
 
 Page 13. " In case the candidate has been already 
 ordained, and is only transplanted to this congregation 
 (from another), one of the Presbyters performs the Divine 
 service for the induction of the minister with the { congrega- 
 tion icho have before declared their willingness and desire to 
 receive him.' " 
 
 At page 8, we find : " No one is here obtruded upon 
 
QUESTION EXAMINED. 73 
 
 the people against their open or tacit consent and appro- 
 bation, or without the voice of the particular eldership 
 with whom he is to serve the ministry." 
 
 VI. 1640 and 1641. 
 
 Several Acts of Parliament furnish a collateral testimony 
 concerning the degree of estimation attached to the prin- 
 ciple of Non-intrusion in the Scottish Church at this 
 period. They transfer to the Presbyteries the patronage 
 of such benefices as were in former times disposed of by 
 bishops, adding the provision that they shall exercise the 
 patronage " without prejudice to the interests of parishes, 
 according to the acts and practice of the Kirk since the 
 Reformation ; " and, as synonymous with this, " with the 
 consent of the parish ; " and " upon the suit and calling of 
 the congregation." Now, when we consider how natural 
 it is, that civil authorities should be inclined rather to 
 protect and foster the rights of ecclesiastical courts than 
 those of the ecclesiastical people, we must conclude that 
 these careful provisions for protecting the rights of the 
 people are a decisive and important testimony of the great 
 estimation in which these were then held, and that they 
 contain at least the recognition of a real right of Veto; 
 and it is beyond doubt, that, if the Act of Queen Anne 
 had been as careful in prescribing to the restored patrons 
 such provisions as the State considered necessary to pre- 
 scribe even to the Church courts themselves, the unhappy 
 intrusions of Auchterarder and Marnoch would not have 
 taken place. But the Act of Queen Anne had doubtless 
 sinister views at bottom. 
 
 Remark. 
 
 A few words are here necessary upon a document of this 
 period, which the Intrusionists bring to their support, and 
 
74 SCOTTISH CHURCH 
 
 from the general declarations of which they deduce, that 
 the Church herself has had the intention of granting to the 
 congregations the right of objection, but under condition, 
 that the Church court should judge of it, and if it deemed 
 fit, set it aside. 
 
 In England, the principles of the Independents or Con- 
 gregation alists, which for a short time held the ascendancy 
 under Cromwell, began to spread more and more. The 
 Independents reject all collective Church government. 
 They maintain, that each separate congregation is a perfect 
 and independent Church of Christ in itself, and has the 
 right to govern itself in accordance with the Scripture. 
 The English Presbyterians now applied to the General 
 Assembly to learn its views on this point. The letter, 
 which the General Assembly wrote to them in 1641. 
 ("Off. Acts of the General Assembly," reprinted under 
 the superintendence of the Church Law Society, Edin- 
 burgh, 1843, page 50), was drawn up by Alex. Henderson, 
 and gives to the Scottish Presbyterian principle of a col- 
 lective Church government a decided and strongly ex-- 
 pressed preference over Congregationalism. This general 
 point of view is to be kept in mind in reading this docu- 
 ment. But the Intrusionists read it, as if it were purely 
 an abstract theory of the rights of congregations concerning 
 the placing of ministers. Henderson, Gillespie, and other 
 men who then led the Scottish Church, wished, as we shall 
 afterwards see, to give the right of election to the congre- 
 gations, and even the letter, which the author speaks of, 
 requires the "tacit consent" of the people, although it is 
 strongly opposed to Congregational principles with regard 
 to Church government. But there is no contradiction in 
 asking for the most energetic and best regulated Church 
 government on the one hand, and the greatest liberty and 
 justice to individuals or congregations on the other. On 
 
 
QUESTION EXAMINED. 75 
 
 the contrary, it ought to be the aim and duty of every one, 
 who has influence in the government of a Church, to point 
 out the way in which both may be combined to the greatest 
 possible extent, and in the greatest possible harmony. 
 However, even granting it to be inconsistent, that the 
 Scottish Church, in this document, denies to the congrega- 
 tion all active participation in the government of the 
 Church, and yet grants it the privilege of a real Veto in 
 the election of their ministers, the Intrusionists would 
 nevertheless not have won their point, because they acknow- 
 ledge, as well as their opponents, the Bible as an authority, 
 which is higher than any logical consistency or argument. 
 Now, that the principle of Non-intrusion be conformable to 
 Scripture, and have been in full force in the first four cen- 
 turies, the Intrusionists cannot deny. 
 
 VII. 1642. 
 
 The King agreed to appoint to the places under his 
 patronage one of six candidates, which the respective Pres- 
 byteries should propose to him. The General Assembly, 
 consequently, drew up in 1642 certain regulations, accord- 
 ing to which the respective Presbyteries should prepare 
 lists for vacant parishes under the Royal patronage. 
 
 This the Intrusionists consider as favouring their view of 
 the definitive powerlessness of the congregations in opposing 
 the presentee but they overlook one point, namely, that 
 one of these regulations provides, that the Presbytery shall 
 choose a candidate, " with consent of most or best part of 
 the congregation." 
 
 In order that no doubt may remain, that according to 
 the view of the Church the absence of this consent was a 
 real obstacle to the Presbytery, let us listen to the testi- 
 mony given by Baillie, a distinguished contemporary, in 
 his letters (Vol. L, pages 341 and 342), in which, speaking 
 
76 SCOTTISH CHURCH 
 
 of these regulations, he says : " Sending up six to the 
 King to present, any one whereof we would assure should 
 be accepted by all, who had interest;" which is evidently 
 incompatible with the principle of Intrusion. 
 
 VIII. 1645. 
 
 Westminster Assembly, 
 
 That which appears the most formidable testimony against 
 the principle of Non-intrusion, in the real sense of the 
 Free Church, is contained in "The Form of Presbyterial 
 Church Government, and of the Ordination of Ministers, 
 agreed upon by the Assembly of Divines at Westminster." 
 
 This document, dating from the year 1 645, and approved 
 of by the Scottish Church, has also the expressed sanction 
 of the State in the Treaty of Union, and merits, therefore, 
 particular attention. 
 
 The leading thought concerning the matter in hand is 
 thus expressed : 
 
 " No man is to be ordained a' minister for a particular con- 
 gregation, if they of that congregation can show just 
 cause of exception against him." 
 
 In the "Directory," for the Ordination, we find the 
 words : 
 
 " He that is to be ordained being either nominated by the 
 people, or otherwise recommended to the Presbytery, 
 for any place, must address himself to the Presby- 
 tery," &c. 
 
 After his "gifts and qualifications" have been examined 
 by the Presbytery 
 
 " He is to be sent to the Church where he is to serve, 
 there to preach three several days and to converse with 
 the people, that they may have trial of his gifts for their 
 edification, and may have time and occasion to inquire 
 into, and the better to know, his life and conversation." 
 
 
QUESTION EXAMINED. // 
 
 Then the congregation is to give public notice that 
 " A competent number of the members of the congregation 
 nominated by themselves, shall appear before the Pres- 
 bytery to give their consent and approbation to such a 
 man to be their minister, or otherwise to put in with all 
 Christian discretion and meekness, what objections they 
 have against him, and if, upon the day appointed there be 
 no just exception against him, but the people give their 
 consent, then the Presbytery shall proceed to ordination." 
 The General Assembly adopted this Directory with the 
 following clause : 
 " Provided always, that this Act be no ways prejudicial to 
 
 the farther discussion and examination of the 
 
 distinct rights and interests of Presbyteries and people in 
 the calling of ministers, but that it shall be free to debate 
 and discuss these points as God shall be pleased to give 
 farther light." 
 
 Remarks on this document. 
 
 I. It defeats the decided Intrusionists, for it refutes the 
 sense of the term " qualified presentee," which was adopted 
 by the House of Lords, in 1839, on the occasion of the 
 Auchterarder case, and which confined the qualification 
 merely to a technical and juridical sense, relating to life, 
 literature, and doctrine. 
 
 It establishes, as condition for ordination, the much dis- 
 puted " acceptableness," or "suitableness," inasmuch as the 
 people are to judge " of the preacher 's gifts for their edifi- 
 cation" 
 
 II. It gives to the moderate Intrusionists an apparent 
 though not real ground to think themselves justified by its 
 wording. 
 
 III. It contains nothing against the Non-intrusionists, 
 but rather presupposes their principle to exist in the 
 
78 SCOTTISH CHURCH 
 
 Scottish Church, as will be shown by a more detailed view 
 of the circumstances under which the document was 
 framed. 
 
 The Westminster Assembly was called together to draw 
 up a form of doctrine, government, discipline, and liturgy, 
 for the common use of the whole of Great Britain. The 
 three contending elements of the Reformed Church of that 
 time were represented in the Assembly by their most dis- 
 tinguished defenders. On the one side were the Episco- 
 palians, with their Catholicizing ideas of Church and 
 Church matters (although less numerously represented) ; on 
 the other, were the Independents, with their (so to speak) 
 congregationalizing ideas: and, between both, were the 
 Presbyterians, ready to unite with the Episcopalians 
 against the Independents in maintaining the Church as a 
 whole, of which the single congregations are parts, and 
 collective Church government, to which the single congre- 
 gations are subjected ; and ready to unite with the Inde- 
 pendents against the Episcopalians in the rejection of the 
 prelatic forms of the Church and Church government. 
 
 Scotland had among its deputies its three most distin- 
 guished theologians, Henderson, Rutherford, and George 
 Gillespie, who were more than Non-intrusionists, inasmuch 
 as they wished to give the congregations the right, autho- 
 rized by Scripture, of electing their ministers, as was really 
 the practice of the Scottish Church of that time. 
 
 The opinion of the English Presbyterians was different 
 from this. Among this body many were, of course, to be 
 found who agreed with their Scottish brethren. Travers 
 (the opponent of Hooker), and Cartwright (the opponent 
 of Whitgift), were on this account prosecuted, and, on 
 Melville's invitation, went to Scotland: in the Assembly 
 Marshall, Calamy, and especially Young, supported the 
 views of the Scotch ; but the English Presbyterians were 
 
QUESTION EXAMINED. 79 
 
 inclined to give the congregations large rights. They 
 were partly under the involuntary influence of Episcopal 
 education; partly out of aversion to the extreme of Inde- 
 pendentism, they softened their asperity towards the other 
 extreme ; partly also they must have been influenced rightly 
 by the thought, that in the fermenting and disordered con- 
 dition of the English congregations at that time, they were 
 little capable to exercise such important rights ; in short, 
 the English Presbyterians were inclined to take a similar 
 view to that taken at present by the moderate opponents 
 of the Free Church ; and the Scottish Presbyterians, and 
 those of the English who held the same views with them, 
 were not able either to carry through the right of election 
 or that of unconditional Veto. At last the resolutions, 
 mentioned above as contained in the document in question, 
 were agreed on, in which, it is to be observed, the assent 
 of the congregation is required, but in which any regu- 
 lation for the case of their dissent is purposely avoided. 
 
 What follows from this? 
 
 That the document contains those points, on which all 
 parties could agree ; but the Scotch, whose personal convic- 
 tions and character have been elsewhere shown, would 
 never have agreed to this document if it had been incom- 
 patible with the principle of their Church, the principle of 
 Non-intrusion. Their view was that which is now enter- 
 tained by their spiritual successors, the modern Non- 
 intrusionists. They could vote for this document to its 
 fullest extent without betraying their national Church, 
 which only went somewhat farther than it did. 
 
 Every Non-intrusionist can readily and without incon- 
 sistency agree with this document, only he would add: 
 
 " But my opinion is, that if a congregation deliberately 
 and conscientiously declares that it be not edified by a 
 preacher, this constitutes ' a just cause of exception against 
 
80 SCOTTISH CHURCH 
 
 him' And nowhere do we find in the document, that, not- 
 withstanding this, the preacher is to be intruded on it. The 
 consent of the congregation is required in the document, 
 but no right of intrusion is given to the Presbytery in the 
 case of its dissent. Our forefathers would never have 
 allowed this. What the document contains is true and 
 good ; but it is not the whole truth, it is not all the good 
 we then enjoyed in Scotland, but which could not find 
 recognition and support in Great Britain collectively. Our 
 forefathers contented themselves with it at that time, not 
 that the document contained a perfect exposition of the 
 Scottish principles on the point, but that it contained all 
 that our Church could obtain at that time in common with 
 the English ; at any rate, it contained nothing inimical to 
 the principles of the Scottish Church. On this account, 
 when our forefathers returned home from the Assembly 
 with this document, our Church ratified it, but not uncon- 
 ditionally, inasmuch as she added the clause 
 " Provided always, that this Act be no ways prejudicial to 
 
 the farther discussion and examination of the distinct 
 . rights and interests of Presbyteries and people in the 
 
 calling of ministers, but that it shall be free to debate 
 
 and discuss these points as God shall be pleased to give 
 
 farther light.' 
 
 " In addition to this we also learn from Baillie (vol. ii., 
 p. 90), that the same Gillespie, who remained till the end 
 of his life more than Non-intrusionist, who distinguished 
 himself in the Westminster Assembly as the most zealous 
 defender of this truly Scottish principle, that he himself 
 sketched the Act of the General Assembly of 1645. 
 Therefore do not let it escape your mind, that the General 
 Assembly affixed a condition to their approbation by this 
 6 provided always,' &c., that it gave this conditional appro- 
 bation in the fresh memory of what the year 1638 had 
 
QUESTION EXAMINED. 81 
 
 established regarding the rights and mutual relations of 
 our people and Church courts, that it gave it by the pen of 
 the Gillespie and in the sense which its Gillespies, its 
 Hendersons, its Ilutherfords had recognised. In that 
 ' provided always] #c., as you see, it secured, on the one 
 hand, its principle of Non-intrusion ; but, on the other, it 
 left the more accurate limitation of the rights of the Pres- 
 byteries and those of the rights of the congregations open to 
 debate. Why do you think it did the latter? Not indeed 
 in order that its principle of Non-intrusion might be 
 debated away, but only in order to leave open the means 
 and forms of it for the convenience of the Church of 
 England, which was to use the same standard. Later, 
 when Episcopacy gained once more the ascendancy in 
 England, our forefathers were free in this respect, enjoying 
 full liberty of regulating their Church affairs according to 
 their own homely views, And in what way they have done 
 this the Acts of 1649 and 1690 will plainly show." 
 
 Remark. The Scottish Church .took at that time a 
 position similar to that which she took in 1841, when she 
 declared that she was conscientiously bound to maintain 
 the principle of Non-intrusion, but that she was at the 
 same time willing to give up the provisions of the Veto 
 Law and accede to others, provided only that this principle 
 were secured. 
 
 IX. 1694, c. 171. 
 
 An Act was passed by Parliament in the year 1649, Act 1649, 
 obviously through the influence of the Church, which leaves p.4ii,seq.) 
 no doubt whatever of the opinion of the Church in respect 
 to the principle in question. This Act declares, " that 
 patronages and presentations of kirks is an evil and a 
 bondage under which the Lord's people and ministers of 
 this land have groaned; and that it has no warrant in God's 
 
82 SCOTTISH CHURCH 
 
 Word, but is founded only on the canon law, and is a custom 
 Popish, and brought into the Kirk in time of ignorance 
 and superstition ; that the same is contrary to the Second 
 Book of Discipline and to several acts of General Assem- 
 blies, and that it is prejudicial to the liberty of the people 
 and planting of kirks and unto the free calling and entry of 
 ministers unto their charge." 
 
 The Act then forbids and annuls " all patronages of 
 kirks, whether belonging to the King or to any laic patron, 
 Presbyteries, or others within this kingdom, as being unlaw- 
 ful and unwarrantable by God's Word, and contrary to the 
 doctrine and liberties of the Kirk." 
 
 The Act then ordains that the places of ministers shall 
 be filled "upon suit and calling, or with consent of the 
 congregation, on whom none is to be intruded against their 
 will." 
 
 It then enacts, that " Whosoever hereafter shall, upon 
 the suit and calling of the congregation, after due examina- 
 tion of their literature and conversation, be appointed by 
 the Presbytery unto the exercise and function of the 
 ministry in any parish within this kingdom, without a 
 presentation by virtue of their admission^ shall have right to 
 all the fruits of the benefice." 
 
 It enjoins the next General Assembly " to condescend 
 upon a certain standing way for being a settled rule 
 therein for all times coming." 
 
 The General Assembly fulfilled the task in the produc- 
 tion of the following Directory : 
 
 " I. When any place of the ministry in a congregation is 
 vacant, it is incumbent to the Presbytery with all dili- 
 gence to send one of their number to preach to that 
 congregation, who in his doctrine is to present to them 
 the necessity of providing the place with a qualified 
 
QUESTION EXAMINED. 83 
 
 pastor, and to exhort them to fervent prayer and suppli- 
 cation to the Lord, that he would send them a pastor 
 according to his own heart. As also he is to signify that 
 the Presbytery, out of their care of that flock, will send 
 unto them preachers, whom they may hear ; and if they 
 have a desire to hear any other, they will endeavour to 
 procure them an hearing of that person or persons, 
 upon the suit of the elders to the Presbytery. 
 
 "II. Within some competent time thereafter, the Pres- 
 bytery is again to send one or more of their number to 
 the said vacant congregation on a certain day appointed 
 before for that effect, who are to convene and hear 
 sermon the foresaid day, which being ended, and intima- 
 tion being made by the minister that they are to go 
 about the election of a pastor for that congregation, the 
 session of the congregation shall meet and proceed to 
 the election, the action being moderated by ,him that 
 preached ; and if the people shall, upon the intimation of 
 the person agreed upon by the Session, acquiesce and 
 consent to the said person, then the matter being reported 
 to the Presbytery by commissioners sent from the 
 session, they are to proceed to the trial of the person 
 thus elected^ and finding him qualified, to admit him to 
 the ministry in the said congregation. 
 
 "III. But if it happen that the major part of the congre- 
 gation dissent from the person agreed upon by the 
 Session, in that case the matter shall be brought unto the 
 Presbytery, who shall judge of the same; and if they do 
 not find their dissent to be grounded on causeless preju- 
 dices, they are to appoint a new election, in manner 
 above specified. 
 
 " IV. But if a lesser part of the Session or congregation 
 show their dissent from the election, without exceptions 
 relevant and verified to the Presbytery, notwithstanding 
 G 2 
 
84 SCOTTISH CHURCH 
 
 thereof the Presbytery shall go on to the trials and 
 ordination of the person elected; yet all possible dili- 
 gence and tenderness must be used to bring all parties 
 to an harmonious agreement. 
 
 " V. It is to be understood, that no person under the 
 censure of the Kirk because of any scandalous offence, is 
 to be admitted to have hand in the election of a 
 minister. 
 
 " VI. When the congregation is disaffected and malignant, 
 in that case the Presbytery is to provide them with a 
 minister." 
 
 Examination of this Document. 
 
 The impartial examiner who considers this most im- 
 portant document, together with the Act of Parliament, of 
 which it was the ecclesiastical realization, can have no doubt 
 that it establishes the principle of Non-intrusion in the 
 sense of the Veto Law, and is its precursor in spirit and 
 form. 
 
 Clause II. states, that if the congregation (or, what is the 
 same, the majority of it) consents to the candidate pre- 
 sented by the Kirk Session, the matter is to be reported 
 to the Presbytery, who examine the ecclesiastical qualifi- 
 cations of the presentee, and, if nothing is found against 
 him, appoint him. 
 
 Clause III. But if the congregation (or the majority of 
 it) dissent, the matter is also to be submitted to the Pres- 
 bytery, " who shall judge of the same," and, if it find this 
 dissent not grounded "on causeless prejudice," a new 
 election shall take place. 
 
 Clause IF'. But if the majority do not dissent, and 
 the minority cannot produce to the Presbytery " ex- 
 ceptions relevant and verified," the appointment shall 
 proceed. 
 
 
QUESTION EXAMINED. 85 
 
 The Non-intrusionists argue upon these things in the 
 following manner: 
 
 A. " Clause III.," they say, " contains the right of 
 decisive Veto of the congregation in the sense of the Veto 
 Act, whilst clause IV. only obliges the minority to support 
 their dissent before the Presbytery in the same manner in 
 which the Intrusionists and the Church of Scotland 
 Benefices Bill wish to oblige the whole congregation to 
 proceed in every case." 
 
 " Why," they continue, " is a distinction made between 
 majority and minority if the rights granted to the majority 
 respecting dissent were not different from those granted to 
 the minority ! The mere existence of the distinction 
 between majority and minority is a deathblow to the 
 Intrusionists, and exhibits the genuine spirit of Scottish 
 Church legislation in contradistinction to that of the most 
 recent Bill; for this Bill does not consider the quantum of 
 the dissent, but only the quale, of which the Presbytery has 
 always to judge without regard whether objection be made 
 by all, by many, by few, or by a single person." 
 
 On the other hand, the Intrusionists say, that the distinc- 
 tion is only to be looked on in the following sense : If the 
 majority dissent there is a prima facie presumption that 
 the dissent is grounded, and the Presbytery must take 
 time " to judge the matter; " but if only a minority dissent, 
 there is a prima facie presumption that the dissent is 
 ungrounded; and if the dissentients cannot bring forward 
 "relevant and verified exceptions" at once, the Presbytery 
 may with safety neglect it. In other words, the Presbytery 
 has to judge of the matter in the first case with care, and 
 in the second it may proceed in a more summary manner. 
 This clearly appears in clause III., from the expression 
 " the matter shall be brought unto the Presbytery." The 
 word " the matter" evidently designates more than a 
 
86 SCOTTISH CHURCH 
 
 report on the mere fact of the dissent, it includes stated 
 reasons given to the Presbytery to be judged of. 
 
 The Non-intrusionists reply to this, and, as appears to 
 the writer, with reason : Why lay a stress on the word 
 " the matter?" You have only to read clause II., and you 
 will find, that, even in the case of consent "the matter" is to 
 be judged of by the Presbytery; and here nothing can be 
 meant but the mere fact of the consent; and the Presbytery 
 has nothing further to judge of than whether or not the 
 presentee satisfies the Presbytery's own demands. And 
 what you advance concerning a distinction between tiprima 
 facie ground of probability, and one which is not prima 
 facie, is a pure invention of your own ; no word of it is to 
 be found in the document. Every impartial lover of truth 
 will grant that the intention of the document relates purely 
 to the quantitative distinction of majority and minority of 
 dissenting voices, and by no means to the distinction of 
 more leisurely or more summary proceedings in the 
 examination of the quality of the reasons for dissent. 
 We grant that the document, which even in the case of 
 the dissent of the majority, gives the Presbytery the power 
 of judging of the causelessness or validity of the dissent, 
 pre-supposes, that the Presbytery engages with the dissent- 
 ing portion in certain transactions ; but we have had no desire 
 to refuse or abolish this either in maintaining the Non- 
 intrusion principle or in framing the provisions of the 
 Veto Law. On the contrary, we have always advo- 
 cated this power of the Church, as in clauses V. and 
 VI., in which the Presbytery is allowed, by way of dis- 
 cipline, to suspend the right of election of a whole con- 
 gregation altogether. But we maintain, on the other 
 hand, that the intention of this document is, that if 
 the majority expresses its conscientious dissent in the 
 following form: " This minister fails in edifying 
 
 us, 
 
QUESTION EXAMINED. 87 
 
 and we have no confidence that his fulfilment of his office 
 among us will be happy and successful;" this dissent is not 
 to be held as causeless prejudice. We maintain, that 
 under the head of causeless prejudices are to be classed, in 
 the intention of this document, such superficial trifles or 
 rumours which would disappear to the congregation itself 
 on a calmer representation, so that the dissent would cease 
 just as this amicable and brotherly treatment of the affair 
 is recommended with regard to the minority in clause iii. 
 so that all may come to an harmonious agreement. 
 
 B. But we also maintain, that from all this results, 
 that the onus probandi at least lies \fith the Presbytery or 
 the minority, not with the congregation, as you would 
 have it 
 
 C. And we maintain, that in all cases where the Pres- 
 bytery cannot convince the congregation, no word is to be 
 found in the document to show that the Presbytery is 
 entitled to intrude a minister on the reclaiming congrega- 
 tion against the conscientious dissent of its majority. In 
 this manner alone all parties have their real, and not 
 merely apparent right. The Kirk Session (at that time in 
 the place of the patron) presents ; it is no popular election, 
 and the judgment of the Presbytery on "the matter" has 
 to protect this right. If, for instance, the minority of the 
 Kirk Session (for it would have been their business) could 
 prove that the presentation had been obtained by intrigue 
 or improper influence, the Kirk Session would be bound to 
 make another presentation. The congregation consents, and 
 the judgment of the Presbytery in "the matter" has to 
 protect this right, for not without the consent of the con- 
 gregation, and certainly not against it, could an appoint- 
 ment be lawful. The Presbytery examines, ordains, and 
 inducts, and, without this activity of the Presbytery, the 
 new minister could not be the lawful minister of the parish, 
 
88 SCOTTISH CHURCH 
 
 even though Kirk Session and congregation had unani- 
 mously chosen him. 
 
 This view of the document is defended by the first theo- 
 logians and lawyers of Scotland, and the writer deems it an 
 honour to join their ranks. Lord Moncrieff has specially 
 entraced it with clearness in the Auchterarder case. It is 
 incontrovertibly the view taken by contemporary autho- 
 rities. ("Conf. Baillie," vol. ii., page 340; " Gillespie's 
 Miscellanies," chap, ii.) It defeats Intrusionism, and estab- 
 lishes the legality of the principle of the Free Church. 
 This document is, however, so much the more important, 
 as it serves expressly as basis of the last document of 1690, 
 to the consideration of which we proceed. 
 
 Remark, 
 
 The next forty years of the history of the Scottish 
 Church are a troubled time, to which the same remarks 
 apply, as to the period between 1600 and the so-called 
 second Reformation. The daughter of Laud (the Church 
 of what is to-day High- Pusey ism) was to be married, at all 
 sacrifice, to the free, sober, High-Protestant Scotchm 
 The melancholy event of this tragedy is well known. 
 
 A Noble and Learned Lord in the Court of Session makes 
 the remark, " It is striking how little the right of patronage 
 is mentioned among the struggles of this period." As if it 
 followed from this, that patronage was something to which 
 the Church was indifferent. But, granting the remark 
 itself to be historically correct, it shows nothing more than 
 that he, who is struggling with the storm-driven ocean for 
 existence, is not concerned for the moment about the rain 
 which accompanies the storm. However, the remark is 
 not actually correct. Among the reasons for which the 
 best of the Scottish clergy could not conscientiously con- 
 
 ,. 
 

 QUESTION EXAMINED. 
 
 form, and about the half of them were violen 
 from their places, was always included their unwillingness 
 to submit to being presented by a patron, and of having 
 their appointment made valid by a bishop, as the shameful 
 Act of Parliament of Glasgow, of 1662, required of those 
 placed after 1649. This injunction violated the conscience 
 of the Church of Scotland as it had manifested itself in the 
 Directory of 1649, 
 
 The writer confines himself here to the following quota- 
 tions, which exhibit the opinions of some men, whom even 
 the Intrusionist must recognise as the true -sons of the 
 Scottish Church in those perilous times. (Conf. W. Cun- 
 ningham, "Defence of the Rights of the Christian People," 
 &c. Edinb. 1841, page iii., seq.) : 
 
 Wodrow, vol. i., page 283. 
 
 Robert Douglas, " A Brief Narrative of the coming in 
 of Prelacy to this Kirk," by Wodrow, 1. c., page 286. 
 
 Brown's (of Wamphray) " Apologetical Relation." 1665. 
 Sec. 9, page 102. 
 
 Alex. Jamieson's (of Govan) "Apology for the Perse- 
 cuted Ministers," &c. 1677. pp. 71, 72. 
 
 Thomas Forrester's " Rectius Instruendum; or, a Review 
 and Examination," &c. 1684. Part i., chap. 4, pp.33, 34; 
 part iii., chap. 3, pp. 76, 77. 
 
 All these authors maintain the right of congregations, 
 conformable to Scripture and to reason, to be, at least, a 
 real consent at the placing of their pastor, as the whole 
 affair was established by law in 1649. 
 
 X. 1690. c. 53. 
 
 The just-mentioned period of violence on one side, and Acti690, 
 
 J ... c. 53,(vol.ix., 
 
 of weakness or courageously borne injuries on the other, p . 
 gave vent at last to its fermenting elements in the Revo- 
 lution, through which prelacy and the ecclesiastical 
 
 
90 SCOTTISH CHURCH 
 
 supremacy of the Crown were abolished in Scotland and 
 Presbyterianism was re-established as the religion of the 
 land. 
 
 Buchanan mentions, in his " History of Scotland," that 
 the Scottish Protestants demanded, as early as 1558, "that 
 the election of ministers, according to the ancient custom 
 of the Church, should be made by the people;" and 
 Wodrow relates, that the Scottish Presbyterians of 1688 
 desired, in an Address to the Prince of Orange, among 
 other things, " that laical patronages be discharged, as was 
 done in the Parliament, 1649, and the people restored to 
 their right and privilege of election, according to the Word 
 of God." 
 
 So, in 1690, patronage was formally and solemnly 
 abolished, and the provision was made, " That in case of 
 the vacancy of any particular Church, and for the supplying 
 the same with a minister, the heritors of the same parish, 
 being Protestants, and the ciders, are to name and propose 
 the person to the whole congregation, to be either approven 
 or disapproven by them ; and if they disapprove, that the 
 disapprovers give in their reasons to the effect, the affair 
 be cognosced upon by the Presbytery of the bounds, at 
 whose judgment and whose determination the calling and 
 entry of a particular minister is to be ordered and con- 
 cluded." 
 
 The writer will here observe, that the document under 
 consideration, taken in connexion with the historical cir- 
 cumstances under which it arose, has been justly considered 
 by the Scottish Church as a regulated system of congre- 
 gational election in the animus of Non-intrusion ; although 
 it is not to be denied, that reckless Church Courts may 
 take refuge in the wording of the provisions of this docu- 
 ment and overrule the conscience of a disapproving congre- 
 gation. In such a case, the Church, through her own 
 
QUESTION EXAMINED. 91 
 
 Courts, would do wrong to her own people, as the Mode- 
 rates have copiously done during the last century ; but a 
 more religious and sincere race of Church rulers, filling 
 the courts, who should be influenced by the true spirit of 
 the Church of their fathers, and, therefore, take her docu- 
 ments without spiritual presumption or tyranny, as they 
 were originally meant, would carry out the principle of 
 Non-intrusion under this document in the most decided 
 and direct manner, as the General Assembly did in the 
 year 1834. 
 
 On the other hand, the Intrusionists cannot honestly 
 support their own sense by this document, because, since 
 its drawing up, an unfortunate occurrence has entirely 
 altered the position of affairs. The Act of Queen Anne 
 has been passed notwithstanding this document ; notwith- 
 standing the Act of Security which guaranteed this docu- 
 ment; notwithstanding the Treaty of Union, which was 
 founded on the Act of Security; and its undeniable 
 injustice, though of long standing, is still felt. 
 
 According to the Act of 1690, the Church regulated 
 the plantation of charges entirely within herself. The 
 presenting elders and heritors, as well as the consenting 
 or dissenting parishioners, acted in this in an ecclesias- 
 tical character, and the check against the misuse of the 
 right of presentation, as well as of the right of protesta- 
 tion, was rightly placed, under these circumstances, in the 
 Church courts. But when the Act of Queen Anne com- 
 mitted the injustice of introducing the patron on the stage, 
 the whole affair assumed another aspect, inasmuch as the 
 patron acts in no ecclesiastical character. Therefore the 
 question could not but arise on the part of the Church, 
 whether or not she ought to consider this so deadly a blow, 
 that after this breach of treaty on the side of the State, she 
 was bound to dissolve the established union with it, which 
 
9 SCOTTISH CHURCH 
 
 would naturally have involved the most difficult political 
 questions. However, the Church hoped for justice. The 
 Act of Queen Anne had at the commencement of its 
 existence no effect at all. But in after times the Scottish 
 Church learned by bitter experience, what abuse this Act 
 is able to effect, when unconscientious courts of the Church 
 themselves adopted it as a weapon of intrusion or refuge of 
 obsequiousness. 
 
 The Intrusionists have no right to take shelter under the 
 Act of 1690, for this document acts under the supposition 
 of the non-existence of the patron. After the intrusion of 
 patronage, the Scottish Church cannot be blamed, that, 
 whilst acquiescing in it, nay, recognising it (as the Veto 
 Act does), she is desirous to secure at least as much of 
 her rights of 1690 as the Act of Queen Anne has not 
 taken from it ; and to modify these, as far as she lawfully 
 might be allowed to do, to suit the altered relations. 
 
 Now, here arises a contention between the Intrusionists 
 and Non-intrusionist?, the merits of which must be dis- 
 tinctly understood. The Act of Queen Anne places (to use 
 its own term) the power of presentation of the " heritors and 
 OTHERS," henceforward in the hands of the patron. The 
 Non-intrusionists say of this, that by the term " others" 
 are meant only the " elders" who had hitherto presented 
 the candidate, together with the " heritors," to the congre- 
 yation, as the term " heritors and others" in the Act of 
 Queen Anne, manifestly corresponds to the term " heritors 
 and elders" in the Act of 1690. The Intrusionists, on the 
 contrary, say, that under the term " others," in the Act of 
 Queen Anne, are included together the elders and the 
 parishioners, who from 1690 jointly presented the candidate 
 to the Presbytery. According to the former view, nothing 
 would be altered by the Act of Queen Anne except the 
 passing of the presentation from the " heritors and elders" 
 
QUESTION EXAMINED. 93 
 
 to the patrons. The consent of the parishioners would 
 continue to be as essential a condition as the presentation 
 by a patron, and therefore their dissent or veto a real 
 barrier. According to the second view, on the contrary, 
 all that had been the province of the " heritors, elders, and 
 parishioners jointly? before they could present a candidate 
 to the Presbytery, had passed over to the patron, and the 
 Act of Queen Anne had left the congregation without any 
 right or participation in the appointment whatever. 
 
 The writer believes that, impartially considered, both in 
 a philological and historical point of view, the interpretation 
 of the Intrusionists is false, and they are entirely refuted 
 by the continuing existence of the Call. 
 
 If it be false, nothing can be objected to the principle of 
 the Veto Law, little to its provisions. For it was the 
 intention of the Veto Law to secure this right of the 
 parishioners, (which naturally now belongs also to the 
 heritors and elders,) as protection against a mischievous 
 operation of the law of patronage, and the principle of 
 Non-intrusion is rightly to be deduced from the Act of 
 1690, for how could a minister be intruded on a congre- 
 gation if an agreement had to be made among the congre- 
 gation itself, namely, between the heritors and elders on 
 the one hand, and the other parishioners on the other, 
 before the candidate could be presented to the Presbytery 
 for trial, confirmation of the Call, ordination, and in- 
 duction ? 
 
 But even granting that the Intrusionists were right in 
 maintaining that the Act of Queen Anne had taken from 
 the congregation all right, as well of presentation as of 
 consent or dissent, at any rate the right of the Presbytery 
 would remain unaltered. The decision of the Presbytery, 
 and finally of the General Assembly, was made conclusive 
 ly the statute of 1690, (as it had been conclusive, as will be 
 
94 SCOTTISH CHURCH QUESTION EXAMINED. 
 
 shown in the last part of this treatise, since 1567,) in every 
 case of the appointment of a minister. This stands valid, 
 whatever may be said of the principle of Non-intrusion. 
 If the Intrusionists and Moderates maintain that the 
 minister may and ought to be intruded on a congregation 
 by the Ecclesiastical Court, this is a very different thing 
 from the ministers being intruded on the Ecclesiastical 
 Court, or the Church in general, by a lay person or a civil 
 court. The latter is at all events decidedly against the 
 statute rights of the Scottish Church, so that, even if the 
 Non-intrusion principle were not to be proved legitimate 
 directly and formally from the documents of the Scottish 
 Church, the principle of spiritual independence in the 
 constitutionally defined sense is undeniable. 
 
 And from this ground inferring backwards the passing 
 of a measure such as the Veto Act is perfectly legitimate., 
 and by no means beyond the powers of the Church. 
 
 But it is this very spiritual independence of the Kirk 
 which has been so offensive to lawyers and statesmen, that 
 even most noble-minded persons could exclaim " Rather no 
 Establishment at all, than one with such claims!" Have 
 they forgotten that these claims have been legally ratified 
 since 1567, and again most solemnly, 1690; have been 
 respected for 1 50 years, so that the non-acknowledgment of 
 them is a new injustice, which has in our time driven 
 more conscientious men out of the Church of their fathers 
 in one single day, than the Act of Queen Anne in a whole 
 century? Truly, impartial history will honour the con- 
 scientious Seceders, whilst it will leave for ever a blank 
 page for the answer to the melancholy question, why it 
 ought to have been reserved to a highly-enlightened and 
 Conservative Government to split and virtually to paralyze 
 an Ecclesiastical Establishment which was the firmest, the 
 most effective and energetic, the best adapted to its people 
 of any existing in the three kingdoms. 
 
SECTION IV. 
 
 THE AUCHTERARDER CASE, BEFORE THE COURT OF SES- 
 SION AND THE HOUSE OF LORDS ; GIVING RISE TO THE 
 CONTROVERSY ON THE LIMITS OF CIVIL AND ECCLESIAS- 
 TICAL JURISDICTION. 
 
 BEFORE the author proceeds any farther in a representation 
 which will enter more and more into individual and positive 
 questions of law, he begs to explain the position which he 
 considers himself as legitimately occupying in criticising 
 these points. 
 
 He is no lawyer; he is firmly convinced that a peculiar 
 talent is requisite for success in the legal profession as well 
 as in every other sphere of high mental activity; and he 
 frankly admits that he may be deficient in this talent. If 
 while admitting this defect he considers the distinguished 
 persons and high quarters from which the decisions in 
 question have emanated, and the fact, moreover, of his 
 being a foreigner, he might at first sight find himself rather 
 called on to believe than permitted to criticise. 
 
 Notwithstanding this, perhaps he might be permitted to 
 take his ground without presumption, at any rate, on the 
 following general reasoning : To one person, it may be 
 contended, are given the talents and powers of practical 
 action ; to another the faculty of contemplating, conceiving, 
 and estimating the bearings of this action. And, in reality, 
 we know that an enlightened critic, for instance, may pro- 
 nounce, without presumption, concerning the greatest works 
 
94 gCOTTISH CHURCH QUESTION EXAMINED. 
 
 shown in the last part of this treatise, since 1567,) in every 
 case of the appointment of a minister. This stands valid, 
 whatever may be said of the principle of Non-intrusion. 
 If the Intrusionists and Moderates maintain that the 
 minister may and ought to be intruded on a congregation 
 by the Ecclesiastical Court, this is a very different thing 
 from the ministers being intruded on the Ecclesiastical 
 Court, or the Church in general, by a lay person or a civil 
 court. The latter is at all events decidedly against the 
 statute rights of the Scottish Church, so that, even if the 
 Non-intrusion principle were not to be proved legitimate 
 directly and formally from the documents of the Scottish 
 Church, the principle of spiritual independence in the 
 constitutionally defined sense is undeniable. 
 
 And from this ground inferring backwards the passing 
 of a measure such as the Veto Act is perfectly legitimate, 
 and by no means beyond the powers of the Church. 
 
 But it is this very spiritual independence of the Kirk 
 which has been so offensive to lawyers and statesmen, that 
 even most noble-minded persons could exclaim " Rather no 
 Establishment at all, than one with such claims!" Have 
 they forgotten that these claims have been legally ratified 
 since 1567, and again most solemnly, 1690; have been 
 respected for 1 50 years, so that the non-acknowledgment of 
 them is a new injustice, which has in our time driven 
 more conscientious men out of the Church of their fathers 
 in one single day, than the Act of Queen Anne in a whole 
 century? Truly, impartial history will honour the con- 
 scientious Seceders, whilst it will leave for ever a blank 
 page for the answer to the melancholy question, why it 
 ought to have been reserved to a highly-enlightened and 
 Conservative Government to split and virtually to paralyze 
 an Ecclesiastical Establishment which was the firmest, the 
 most effective and energetic, the best adapted to its people 
 of any existing in the three kingdoms. 
 
SECTION IV. 
 
 THE AUCHTERARDER CASE, BEFORE THE COURT OF SES- 
 SION AND THE HOUSE OF LORDS ; GIVING RISE TO THE 
 CONTROVERSY ON THE LIMITS OF CIVIL AND ECCLESIAS- 
 TICAL JURISDICTION. 
 
 BEFORE the author proceeds any farther in a representation 
 which will enter more and more into individual and positive 
 questions of law, he begs to explain the position which he 
 considers himself as legitimately occupying in criticising 
 these points. 
 
 He is no lawyer; he is firmly convinced that a peculiar 
 talent is requisite for success in the legal profession as well 
 as in every other sphere of high mental activity; and he 
 frankly admits that he may be deficient in this talent. If 
 while admitting this defect he considers the distinguished 
 persons and high quarters from which the decisions in 
 question have emanated, and the fact, moreover, of his 
 being a foreigner, he might at first sight find himself rather 
 called on to believe than permitted to criticise. 
 
 Notwithstanding this, perhaps he might be permitted to 
 take his ground without presumption, at any rate, on the 
 following general reasoning : To one person, it may be 
 contended, are given the talents and powers of practical 
 action ; to another the faculty of contemplating, conceiving, 
 and estimating the bearings of this action. And, in reality, 
 we know that an enlightened critic, for instance, may pra- 
 nounce, without presumption, concerning the greatest works 
 
96 SCOTTISH CHURCH 
 
 of art, without being able himself to execute the slightest 
 production of their kind. The administrators of the law 
 are by no means above the criticism of their fellow-mortals 
 in the performance of their avocation, and the less are they 
 so in a country where the passing and the administering of 
 the laws are a subject of public cognisance. Love of 
 justice, sufficient acquaintance with the respective statutes, 
 and a mind sufficiently well exercised in general matters to 
 conceive a point at issue and judge of it, are by no means 
 objects which the sons of Themis have acquired, to the 
 exclusion of the rest of the world. 
 
 However, this is not the ground which the author 
 pretends to occupy in his exposition, but rather the 
 following: On both sides of the question the highest 
 legal and judicial authorities have been engaged. These 
 have given to the public all that can be brought to bear on 
 the question, both pro and contra, in debates in the halls 
 of justice, as well as in the great field of literary con- 
 troversy. Decisions have been pronounced, refutations 
 proffered, and the refutations in their turn refuted, and the 
 acts of the great suit lie open and accessible to every one. 
 Around these, as it were, a grand free jury of contem- 
 poraries are assembled, and every one may consider himself 
 empanelled who takes an earnest interest in the spiritual 
 affairs of mankind here at stake, and who has followed the 
 speakers on both sides of the question, and the evidences 
 of the witnesses, with understanding and attention. And 
 here, when he asserts his opinion, he is far from presuming 
 to pronounce the incontrovertible ; but he may have received 
 an impression and express it, that certain points have 
 remained throughout the transaction uncontr over ted. These 
 he may advance in favour of the defending party. Such is 
 the field to which the author proposes to confine himself; 
 and if, after having taken every precaution to intrude on 
 
QUESTION EXAMINED. 97 
 
 no ground which he does not feel himself able legitimately 
 to possess and defend, he allows himself some boldness and 
 firmness of expression, he prays his kind reader not to see 
 in those unwarranted assurance, but rather the independent 
 decisiveness of a man, who, through unexpected circum- 
 stances, finds himself summoned to give his single voice 
 among those of that grand jury of contemporaries. 
 
 The point of collision from which the unhappy misunder- 
 standings between the State and the Scottish Church take 
 their primitive rise is the 
 
 " First Auchterarder Case." 
 
 In the decision of this case by the Court of Session, in 
 its confirmation by the House of Lords, and in the further 
 measures taken by the Court of Session under the counte- 
 nance of this confirmation, the pending controversy con- 
 cerning the possession or loss of independent jurisdiction 
 in spiritual matters by the Church, has first arisen, and 
 afterwards became inveterate. 
 
 Before considering the- detailed points of this case, the 
 author may observe, that it is truly painful to reflect that 
 such a case could even happen. A point of law arises, 
 which is in itself insignificant and obscure, and although 
 in later . times purposely upheld and pursued, yet, in its 
 origin, unworthy and accidental; and upon this insig- 
 nificant, isolated, and accidental point, as upon a bad card, 
 the dearest interests of the Scottish Church and nation are 
 staked, to be established or overthrown by the event of a 
 single chance. This will ever appear very strange, and 
 lead necessarily to an inference of foreign motives. For it 
 was the General Assembly, or, in other words, the Church 
 herself, not the particular Presbytery of Auchterarder, 
 which framed the Veto-law. 
 
 H 
 
98 SCOTTISH CHURCH 
 
 This enactment contains instructions to the subordinate 
 Church courts concerning points of Church government, 
 namely, the appointment of office-bearers in the Church, 
 and the formation of a desirable spiritual relationship 
 between pastor and flock. Over these points the Church 
 considered herself legally entitled to independent control. 
 She issued these instructions in the spirit of a law of the 
 Church, which she held as a fundamental one ; she did it 
 under the eyes and with the acquiescence of the Lord High 
 Commissioner, who sits in the Assembly as representative 
 of the Crown, and who is sent there to restrain the Church 
 in any measure she might contemplate, in which the rights 
 and interests of the State and its subjects might be endan- 
 gered. She did it not, indeed, with the official sanction of 
 the Lord Advocate of Scotland and other law-officers of the 
 Crown (for such sanction was not part of their sphere), but 
 with their friendly advice and personal countenance. She 
 did it, as is .proved afterwards in the course of Parlia- 
 mentary business, with the knowledge and approbation and 
 loud praise of the Lord High Chancellor for the time 
 being. Suddenly the measure is denounced as "illegal? 
 as " beyond the powers of the Church? as " injurious to the 
 rights of patrons? as " dereliction of a public duty on the 
 part of the Presbytery? in refusing to take a presentee 
 on trial. 
 
 But let us inquire, in what form this complaint is made. 
 Does the State say to the Church, " You have exceeded, 
 your powers ; we cannot and will not suffer your measure?" 
 By no means. An individual appears, of whom, unfortu- 
 nately, we cannot think otherwise than that he was seeking 
 a flock, not so much in order to feed it as in order to 
 shear it; he makes common cause with a patron, who 
 appears entirely to have forgotten that he had made 
 formal declaration through his agent (as is shown by the 
 
 

 QUESTION EXAMINED. 99 
 
 minister of the Presbytery of Auchterarder) that he sub- 
 mitted to the operation of the Veto-law, and he requires of 
 the Court of Session to find and declare, that the applica- 
 tion of this law to his particular case is an unwarranted 
 act of the Auchterarder Presbytery, and demand that he 
 should be taken on trial. The Court of Session considers 
 itself competent to take cognizance of the case in this 
 form, and defines to the Presbytery its duty in matters 
 which (as will appear) are entirely beyond the province of 
 a civil court. At a later period, in what is called the 
 second Auchterarder case, the Presbytery is condemned to 
 a considerable fine; the candidate might as well have 
 insisted on the imprisonment of his ecclesiastical superiors 
 until they granted him his will. 
 
 It appears to the writer, that the responsible party in 
 this case was the General Assembly, together with the 
 united Presbyteries who passed the Act, since the Pres- 
 bytery of Auchterarder only obeyed its constitutional and 
 recognised superiors. An officer is not reprehensible when 
 he executes the order of his commander-in-chief in matters 
 of military duty; but is, on the contrary, guilty when he 
 does not execute it. Should, therefore, an individual 
 Presbytery have been made responsible for executing the 
 injunctions of a law imposed upon it by its constitutional 
 superiors ? It appears, in reality, that an independent 
 authority and responsibility is supposed to be in the indi- 
 vidual Presbytery in order to accuse it, which is just as 
 arbitrarily denied to it afterwards in order to condemn it. 
 This form of taking up the matter against the Church may 
 not be illegal; but, at any rate, it is strange and to be 
 lamented. However, it is manifest that the controversy is 
 intrinsically a purely ecclesiastical one, and its influence 
 on civil rights and interests was, in the first place, not 
 illegal, and, in the second, not important. But when the 
 
 H 2 
 
100 SCOTTISH CHURCH 
 
 minority of the Church, in the bitterness of their defeat, 
 and by means of some individual members, who are Mode- 
 rates in the Church and out of it lawyers, gave to the 
 question, under the appearance of zeal for constitutional 
 right and justice, a connexion with civil interests, then at 
 once it should have been perceived, that the case was very . 
 different from a common case of purely civil right, and on 
 this account the civil authorities (be it spoken with due 
 respect) ought not to have allowed themselves to be influ- 
 enced by the party-spirited views of a wounded minority of 
 the Church, however much these might, at first sight, have 
 appeared to coincide with their own general sympathies 
 and theories. This origin of the question accounts for the 
 strange mixture of penetration and superficiality, of appa- 
 rent distinctness and want of constant principles, of judicial 
 learnedness and neglect of history and facts, which appear 
 in the public transactions in the matter. 
 
 The writer will now attempt to bring before his kind 
 reader the details of that celebrated and remarkable 
 lawsuit 
 
 A few months after the passing of the Veto Act, a Mr. 
 Robert Young, a probationer, and therefore a person not 
 yet ordained, was presented by Lord Kinnoul to the 
 pastoral charge of Auchterarder. The congregation con- 
 sisted, according to the census of 1831, of 3,182 souls. 
 On the roll of communicants were 330 male heads oi 
 families. 
 
 In the constitution of the Scottish Church there is a 
 very wise law called the Barrier Act. In pursuance of 
 this Act no regulation of the General Assembly of any 
 important effect on the constitution of the Church can 
 become a " standing law " of the Church before it is 
 presented to all the Presbyteries individually (of which 
 
 
QUESTION EXAMINED. 101 
 
 there were at the time of the passing of the Veto Act 
 seventy- three,) for ratification, and before it be ratified by 
 an absolute majority of them. By this means a law 
 undergoes, before passing, the scrutiny of all the office- 
 bearers of the Church. Withdrawn from the impetuous 
 atmosphere of debate in the Hall of the Assembly, where 
 the peaceful equilibrium of judgment might often be more 
 or less disturbed by momentary impressions or imposing 
 personal influences, it is presented to the quiet discernment 
 of practical men, who are destined afterwards to bring it 
 into operation in the individual parishes of the Church. 
 It is the same danger of partiality of view, and of too 
 great mobility, against which the Barrier Act is continued 
 in the Presbyterian Church, which is met in the Episcopal 
 Church by the division of the Convocation into two 
 Houses. 
 
 Until the following annual session of the Assembly, 
 that is, until the votes of the Presbyteries are collected, 
 a Resolution has a temporary efficiency. Therefore the 
 Veto Act first became standing law in 1835, forty-seven 
 Presbyteries voting for it and twenty-six against it. 
 
 The Presbytery of Auchterarder therefore considered 
 itself bound to proceed in this case according to the Veto 
 Act, in which his Lordship, through his agent, signified 
 his acquiescence. 
 
 In the moderating in the Call on the part of the congre- 
 gation, it was found that out of 3,182, besides the agent of 
 his Lordship, who did not belong to the congregation, 
 neither more nor less than two individuals, Michael Tod 
 and Peter Clerk, had signed the Call. 
 
 On the other hand, of the 330 heads of families, 287 
 made a positive protest. 
 
 Mr. Young appealed to the higher Church courts, not 
 on the ground of the illegality of the Veto Act, but alleging 
 
102 SCOTTISH CHURCH 
 
 that errors had been committed in making out the roll of 
 communicants. The General Assembly, to whom the 
 appeal ultimately arrived, dismissed the appeal, and the 
 Presbytery rejected Mr. Young according to the Veto Act. 
 
 Mr. Young appealed against this rejection to the Synod, 
 probably in order to arrive through this intermediate court 
 at the General Assembly; but he soon retracted this 
 appeal, and, in fact, it had little appearance of utility : but 
 we must remark, that to this point he had always pleaded 
 under recognition of the laws of the Church and the 
 authority of his ecclesiastical superiors. 
 
 But from this point he changed his mode of proceeding, 
 and Lord Kinnoul made common cause with him in a 
 recourse to the civil authorities. 
 
 Their " libel " contained, in its first form, nothing which 
 did not strictly belong to the province of the civil court. 
 Mr. Young sued, that the Court of Session should find the 
 validity of his presentation (which nobody doubted), and 
 secure to the patron and himself the emoluments of the 
 benefice according to the statute of 1592,* This view of 
 the matter was founded on the opinion which the Dean of 
 Faculty had expressed before the General Assembly, in 
 his " Reasons for Dissent to the Veto Act," that a 
 presentee, rejected under the operation of the Veto Act, 
 would have a claim for the temporalities of the benefice 
 even though not inducted by the Presbytery. 
 
 According to the Scottish law, the Established Church 
 is the legal guardian of her temporalities. Therefore, in 
 the usual peaceful course of things, she performs, through 
 her Presbyteries, two functions ; she bestows on her 
 minister the charge by the ordination, which is in itself a 
 spiritual act, and bestows the benefice, i.e., the tem- 
 
 * This statute will be considered in the subsequent section of this 
 treatise. 
 
 
QUESTION EXAMINED. 103 
 
 poralities, on him as consequence of this by the induction, 
 which is in itself a civil act. The former act is per- 
 formed by the Church in the name and under the com- 
 mission of Christ; the latter in the name and under the 
 commission of the State, which has been pleased to raise 
 her to the rank of its Establishment, and to grant her its 
 confidence in constituting her the legal guardian of the 
 funds of her endowments. In every thing which regards 
 these temporalities, therefore, the Church is perfectly 
 under the control of the State. The State can resume 
 from her all her revenues, if it should think it proper 
 either to have no Established Church at all, or to raise 
 another ecclesiastical body to this position. It can also, at 
 any moment, demand accounts of the Church by means of 
 its legal organs, of her fidelity to the statutes of the land ; 
 and these legal organs are, in every question relating to 
 this civil element of the Church, perfectly competent and 
 conclusive in their juridical decisions. The Church has 
 in this respect nothing to ask by virtue of Divine right; 
 she has no civil rights except those which the State has 
 voluntarily conferred on her, and continues voluntarily to 
 accede to her, and which the State can, by its own free act, 
 alter or withdraw. 
 
 The Church, in all her individual members owes to the 
 State, in this respect, implicit obedience, and her duty, 
 especially as an Establishment, will ever be to educate her 
 children as obedient and faithful subjects and citizens. 
 These views have never been denied, but, on the contrary, 
 irreproachably carried out into practice by the Free Church 
 of Scotland. But, on the other hand, the State has no 
 power over the spiritualities of the Church, nor would a 
 Church be allowed to grant it such a power (by means of 
 treaty or acquiescence in the decision of a State tribunal), 
 without committing an offence of incalculable consequences, 
 
104 
 
 SCOTTISH CHURCH 
 
 both against him who is her invisible head, and who has 
 instituted her amongst men as witness and instrument of 
 his spiritual ends, and against those within her whose souls 
 are entrusted to her by him, and to whom she has to admi- 
 nister salvation. 
 
 In order to acquire a just idea of the principle that a 
 Church can respect the State earnestly and sincerely, and 
 by no means with a mere Jesuitical appearance, and yield 
 it implicit obedience in all temporal things, and at the same 
 time may oppose it to the utmost by all moral and legal 
 means in any inappropriate interference in spiritual matters, 
 the writer begs to offer the following explanation. The 
 Christian Church, as a whole, and every individual branch of 
 it, as a whole, such as the Church of a nation, is neither the 
 ruler nor the slave of the State. She is an Institution of 
 independent, Divine origin, and derives therefrom her own 
 organism, vitality, and rights. She does not take her rise 
 from the same element of human nature which gives birth 
 to the State. From her peculiar nature she cannot be 
 ranked as equal to the State, as superior to it, nor as 
 inferior to it ; there can be no comparison of rank at all 
 between them; she cannot be considered as contained in 
 the State (since the State is national, and the Church uni- 
 versal, or Catholic), nor can she be considered as containing 
 the State in herself, assuming the form of a theocratical com- 
 monwealth, but she has without the State, (that is to say, 
 not extra, but prater,) a real existence and power. As an 
 expression, and for preservation of her spiritual life, she 
 has certain inherent rights, ordinances, and forms of com- 
 munity, and the source of these is the will and word of her 
 Divine founder, not the ordinations of the State Councils, 
 however well-intentioned and Christianly-minded these may 
 be. On the rationality of this abstract and passing view 
 of the nature of the Church, and on the consequent rela- 
 
 
QUESTION EXAMINED. 105 
 
 tion between Church and State, the author cannot longer 
 dwell; it will be sufficient to remind his indulgent reader 
 of the fact, that the above-sketched view, but expressed 
 theologically and in scriptural terms, is espoused alike by 
 the three great ecclesiastical bodies of these three king- 
 doms, although they differ from each other in realizing it 
 internally, as to constitution, discipline, doctrine, and form 
 of worship, and externally in their relation to the State. 
 That which the Scottish Church, in the recent struggle, has 
 called the principle of spiritual independence, is nothing 
 else but the defence of the above view by the Church in 
 its concrete Scottish form; and the question is, simply, 
 whether or not this form is legitimate, which the author 
 will investigate in the following part of this treatise. He 
 is, therefore, of opinion, that the vague charges, that the 
 Scottish Church has infringed the laws of the land, has 
 despised the ordinances of God, has cherished monstrous 
 hierarchical pretensions, are founded in insufficient acquaint- 
 ance with the subject of dispute, or in pure logical incon- 
 sistence, and have been originated by ecclesiastical or 
 national, or personal antipathies, and influences of habit 
 and custom. 
 
 This important subject can only be properly estimated 
 by following its principles intelligently to their origin, and 
 he alone can impartially view it who regards both Church 
 and State, with equal reverence, esteeming as an ordinance 
 of God the one no less than the other, and wishing that to 
 each may be granted its just rights, or, at least, that 
 neither should suffer the loss of such just rights, which had 
 been already lawfully and rationally established. 
 
 It is strange, but not the less true, that the Auchterarder 
 case has been the battle-field upon which the minority in 
 the Church has attempted, by the help of the power of the 
 State, to uphold that which they were unable to maintain 
 
106 SCOTTISH CHURCH 
 
 by the power of truth and justice against the awakened 
 spirit of the Church, and if the author may allow himself 
 the passing remark, the preference given by the State to 
 the minority of the Church, in disregard of an imposing 
 majority, is something so foreign to the organism and spirit 
 of the Scottish Church, that she must be pardoned if she 
 believe herself misunderstood by her judges even in this 
 elementary principle of her constitution. 
 
 In consequence of the previously explained position of 
 a Scotch Presbytery, with regard to charge and benefice, 
 the libel of Lord Kinnoul and Mr. Young could, in its 
 original form, have no effect. The Presbytery had indeed 
 declared that it would implicitly obey the decision of the 
 Court of Session, in respect to temporalities ; but the diffi- 
 culty arose which has been already mentioned. In order 
 to take possession of the temporalities of the place, it was, 
 according to Scottish law, necessary that Mr. Young should 
 have been inducted by the Presbytery; in order to his 
 induction his ordination was necessary; to this his having 
 been taken on trial was necessary ; to this, such a Call 
 from the congregation as the Presbytery could con- 
 scientiously deem sufficient. This latter condition, even 
 according to the gentler test of it required by the Veto 
 Act was wanting, and, therefore, likewise all the others. 
 
 The pursuers soon perceived that in order to gain their 
 ends another mode of proceeding was necessary, and they, 
 therefore made an " amendment of the libel," intended to 
 produce the induction of Mr. Young, to which, of course, 
 his trial and ordination were requisite. Therefore, they 
 abandoned the civil province, and brought matters before 
 the Court of Session, over which, the Church maintains, 
 that it had no control. 
 
 The amendment was as follows: That the Court of 
 
 

 QUESTION EXAMINED. 107 
 
 Session should discern and declare " that the Presbytery of 
 Auchterarder, and the individual members thereof, as the 
 only legal and competent Court to that effect, by law consti- 
 tuted, were bound and adstricted to make trial of the 
 qualifications of the pursuer, and are still bound to do so ; 
 and if, in their judgment, after due trial and examination, 
 the pursuer is found qualified, the said Presbytery are 
 bound and adstricted to receive and admit the pursuer as 
 minister of the church and parish of Auchterarder, accord- 
 ing to law ; that the rejection of the pursuer by the said 
 Presbytery as presentee aforesaid, without making trial of 
 his qualifications in competent and legal form, and without 
 any objections having been stated to his qualifications, or 
 against his admission as minister of the church and parish 
 of Auchterarder, and expressly on the ground that the said 
 Presbytery cannot and ought not to do so in respect of the 
 veto of the parishioners, was illegal and injurious to the 
 patrimonial rights of the pursuer, and contrary to the pro- 
 visions of the statutes and laws libelled." 
 
 It will be proper to form a clear idea of the position 
 which the Court of Session assumed on sustaining the 
 amended libel. 
 
 I. The civil court summons an ecclesiastical court before 
 its bar, in order to prescribe to it a duty on which to use 
 the terms of the summons the ecclesiastical court was 
 " the only legal and competent one " to perform. 
 
 II. The act itself, namely, the rejection of a presentee 
 from the service of the Church in general, or with regard 
 to a particular place in it, is recognised by the civil court 
 as lying in the province of the Presbytery, and even in its 
 province alone. It is only the ground of rejection of the 
 candidate, which the civil court declares to be insufficient 
 and even unlawful, namely, the Presbytery paying respect 
 to the almost unanimous protest of the parish. In this, 
 
108 SCOTTISH CHURCH 
 
 however, it proceeded under the countenance, and even the 
 injunction of the General Assembly ; so that the civil 
 court assumes the position of a court of control over the 
 ecclesiastical courts; for to examine the grounds of pro- 
 ceeding of a court in a case legitimately in its province, 
 and to confirm, alter, or set aside its proceedings, according 
 to the result of the examination, is the business of a supe- 
 rior court of control to which appeals are made from lower 
 courts. 
 
 III. If the civil court is competent to " declare''' 
 authoritatively that under certain circumstances the Church 
 is u bound and adstricted to receive and admit a presentee ; " 
 it is also empowered and even obliged to force her to do so 
 in case of refusal. But as the admission of a probationer 
 (of which Mr. Young was one) presupposes his ordination, 
 the civil court assumes the position, under certain circum- 
 stances, of commanding the Church under pain of fining 
 or imprisoning her responsible representatives, to ordain 
 this or that person. In short, the relation is about to be 
 introduced into the Scottish Church, mutatis mutandis, 
 which exists in the English Church, at least, according to 
 the letter of unrepealed laws, in the case of the election or 
 consecration of a bishop, under a conge d'elire and prce- 
 munire, a relation entirely foreign to the Scottish Church. 
 
 IV. Thecivil court takes the position of exclusive inter- 
 preter of the rights of the Church. In this spirit it 
 declares it to be an unconditional duty of the Presbytery * 
 to take the candidate on trial, whilst the Church maintains 
 that she constitutionally possesses the right and the duty 
 of exercising, by means of her Presbyteries, before taking 
 
 a candidate on trial a discretionary power over certain pre- 
 liminary conditions. 
 
 The civil court declares it to be illegal to reject a 
 candidate without stating grounds against his qualificatioi 
 
QUESTION EXAMINED. 109 
 
 after due trial and examination, which (we must understand) 
 the Court of Session may overrule, as in this case it express- 
 edly overrules, non-acceptableness as a valid ground against 
 qualification. The Church, on the other hand, maintains, 
 that non-acceptableness is a valid ground against the 
 qualification of a candidate for any particular place, and 
 that she has constitutionally the final decision concerning 
 his fitness for ordination. The Church, therefore, looks on 
 her rights in a different view from that of the civil court. 
 The Lords of Session of the whole of the last century 
 have explained her rights very differently from the present 
 Lords, but, as the poet says, " the living are always 
 right." 
 
 In short, the Court of Session assumed to itself again 
 the position with regard to the Church which the Privy 
 Council held under the Stuarts ; a position which was con- 
 trived for suppressing those rights and liberties which by 
 Scottish Presbyterianism are considered as inherent in the 
 Church of Christ and unalienable from her, and the pos- 
 session of which the Church considered secured to herself 
 after long warfare in the revolution settlement, and 
 guaranteed by the treaty of union. 
 
 Before the Court of Session sustained the "amended 
 conclusions " of Mr. Young's summons, the prudence and 
 conscientiousness of its judges raised the question, whether 
 or not the case did not leave the pale of its jurisdiction. 
 Of the thirteen judges, the large minority of five declared 
 decidedly against sustaining" the amendment. Among 
 these were such men as Lord Moncrieff, Lord Jeffrey, 
 Lord Glenlee, Lord Cockburn ; and Lord Cockburn gave 
 utterance to words at this stage of the matter, to which 
 later events have given the air of a prophetic warning : 
 
 "It is the duty of a supreme court," he said "to avoid 
 
110 SCOTTISH CHURCH 
 
 every collision through which it cannot see its way. Its 
 dignity must necessarily be put into jeopardy by its ex- 
 posing itself to a conflict in which it cannot explain 
 how it is to prevail. This, I fear, is the position in 
 which the Court is about to place itself. It is about to 
 enter upon an untried voyage, without star or compass. 
 No one either of the bar or of the bench can tell us what 
 is to come next." 
 
 That which the Noble Lord feared has rapidly realized 
 itself since the 8th of May, 1838. 
 
 Having once adopted this line, the Court of Session has, 
 in prosecution of the principles on which it started, hardly 
 left the Church any important act free from its control and 
 respectively withering decisions; and now that the Church 
 has, in this manner, step by step, been driven out of the 
 Establishment, history can hardly yet answer the question, 
 " Who can tell us what is to come next ? " 
 
 Notwithstanding the large and important minority of 
 objecting judges in the Court of Session, notwithstanding 
 the protest of the Church against such infringement of her 
 province, and her declaration of the legitimate extent of 
 her jurisdiction, the Court of Session, in the majority of 
 its members, declared itself competent to take cognizance 
 of the case, and first decided, concerning the amended 
 conclusions of the summons, that the Presbytery, in its 
 refusal " to take trial of the qualifications of Mr. Young," 
 and in rejecting him " on the sole ground that a majority 
 of the male heads of families, communicants in the said 
 parish, have dissented without any reasons assigned," has 
 acted " to the hurt and prejudice of the said pursuers, 
 illegally and in violation of their duty, and contrary to the 
 provisions of certain statutes libelled on," especially the Act 
 of Queen Anne. 
 
QUESTION EXAMINED. Ill 
 
 After the House of Lords had confirmed the decision, 
 the Court of Session further decreed, " that the Presbytery 
 is bound and adstricted to make trial of the qualifications 
 of Mr. Young, and if, after trial and examination, he should 
 appear qualified in the judgment of the Presbytery, that 
 the Presbytery is bound and adstricted to receive and 
 admit him as minister of Auchterarder according to law." 
 
 The Church, for she felt herself, as a whole, respon- 
 sible in the matter, obeyed the decree in all points of a 
 civil nature. She gave up all claims to the "jus devo- 
 lutum" as also to the temporalities of the place; she 
 instructed her Presbyteries to suspend the operation of the 
 Veto Act for this year (1839), hoping for an arrangement 
 of the affair with the Legislature. But she persisted in 
 refusing to take Mr. Young on trial, and (what must have 
 been followed) to ordain him and force him on the congre^ 
 gation, maintaining, that this was contrary to duty, justice, 
 honour, and the conscience of the Church. 
 
 The supporters of the Church of Scotland offer the 
 following defence of the propriety of her resistance: In 
 Scotland, the four supreme courts, the fiscal, criminal, 
 civil, and ecclesiastical, are co-ordinate ; each possesses its 
 own province, and none is allowed to infringe the province 
 of another. Thus, the Court of Session has exclusively 
 civil matters to decide on, and has no power over spiritual 
 ones at all. 
 
 One and the same cause may, however, appertain to 
 several of these courts, since it may enter into their several 
 provinces. A marriage, for instance, may be considered 
 valid by the Court of Session as regards the civil rights 
 connected with it, whilst the Church, in an ecclesiastical 
 respect, may censure it. Could the Court of Session over- 
 rule such ecclesiastical censure ? Just so, the Church 
 
112 SCOTTISH CHURCH 
 
 
 might exclude Mr. Young from the charge of Auchterarder 
 without being entitled to overrule the views of the Court 
 of Session in decreeing to him the temporalities of the 
 place. This distinction of the spheres of jurisdiction of 
 State and Church, producing the less collision of interests 
 the more distinctly it is made, is necessary and wholesome 
 both to Church and State. Each of the courts is bound to 
 grant to the others an acquaintance with its proceedings, 
 but only in order to draw from them that which peculiarly 
 belongs to their own provinces, and by no means to enable 
 them to erect themselves as umpires between the other 
 court and the party or parties before it. If the Court of 
 Session has to take cognizance of a case, in which the 
 Criminal Court has passed a judgment, and if the Lords of 
 Session are of opinion that the Criminal Court has not 
 rightly pronounced, has neglected formalities which it 
 ought to have observed, or observed such ones as it was 
 not allowed to introduce, the Court of Session has no right 
 to alter or annul their judgment ; this act belongs to the 
 Court of Appeal, which, for the^e two courts, is the House 
 of Lords, and there the matter ends. The Court of Appeal 
 to all the Church courts is the General Assembly, where, 
 in spiritual matters, the cause constitutionally shall " take 
 end as they decern and declare." (Stat. 1567, 1592, 1690.) 
 In our present case, the Court of Session had no right to 
 set aside the decree of rejection of the Church, but should 
 have contented itself, if it considered this decree as unjust 
 towards Mr. Young and Lord Kinnoul, to deprive it of 
 civil consequences ; this would have been within its pro- 
 vince. And if, besides this, it also lay within its province 
 (as is by no means the case) to act as watch over the other 
 courts, and prevent them from exceeding their bounds, it 
 would have had no opportunity here for exercising this 
 function, since the question, whether the Church should 
 
QUESTION EXAMINED. 113 
 
 admit or reject a candidate for ordination, is purely in the 
 jurisdiction of the Church herself; and although the 
 grounds of rejection of the Presbytery in such case might 
 not appear valid to the Court of Session, it had to 
 remember, that it was not the Court of Review of the 
 Church courts, and should have sent Mr. Young to the 
 General Assembly, where the matter ought to have 
 ended 
 
 Whether or not this arrangement of law administration 
 in Scotland be good or bad, is not here the question, but 
 whether or not it really exists ; and as this cannot be 
 denied, and as, in all spiritual matters, the General 
 Assembly is the head of the Scottish Church, and, as head 
 of the Scottish Church, is not a civil court, since the 
 Scottish Church is not a civil corporation, but a national 
 branch of the Church of Christ on earth, it follows, that 
 no essential alteration of her constitutional relation to the 
 State can be effected by a declaration of the Court of 
 Session or even of the House of Lords. The Church owes 
 honour and obedience to these courts (as the authorized 
 organs of the State) in all matters of civil law ; in spiritual 
 matters, on the other hand, the Church has to honour them 
 also as the authorized interpreters of the relation which the 
 State conceives to exist between itself and the Church, but 
 she has not to obey unconditionally, but under a condition ; 
 and this condition is, that notwithstanding an infringing 
 decision, she considers it possible to remain an Establish- 
 ment. If, however, she find the point of difference of such 
 fundamental and imperative importance, that in the case of 
 the State's not granting a satisfactory resolution of it, she 
 feel herself in conscience bound to make the greatest 
 earthly sacrifices rather than surrender her spiritual inde- 
 pendence as a Church of Christ, then she must resolve on 
 the honourable course which the Church of Scotland has 
 
114 
 
 SCOTTISH CHURCH 
 
 pursued. First, she would have to try if she could not 
 obtain a satisfactory modification of the decree of the civil 
 court by recourse to its court of appeal (the House of 
 Lords). Failing in this, she would have to pray the 
 Legislature for a remedy. If this be not granted, she 
 would have to sacrifice everything to preserve her con- 
 science. And even if any one, who has been educated in 
 another Church, or who conceives that philosophy teaches 
 him to look on such a proceeding as narrow and morbid, 
 be of opinion that the Scottish Church has taken up an 
 erroneous view as a matter of conscience, he must, never- 
 theless, esteem the honest truthfulness with which she has 
 obeyed her conscience. If to this, it be replied, that this 
 is the case with fanatics of all kinds, who, as history 
 teaches us, maintain this obstinate tenacity of their prin- 
 ciples through every extreme, we must grant, in abstracto, 
 the truth of this remark. The writer cannot enter any 
 farther into this objection ; he only observes, in conclusion, 
 that it will have no weight, as applied to the Scottish 
 Church, as long as rational minds exist who can discern, 
 in spite of all superficial similarity, between him who is 
 inspired and him who is intoxicated, between him who 
 adheres to great principles from clearness of view and. 
 firmness of character, and him who clings to fixed ideas 
 from weakness of mind. 
 
 The Scottish Church perceived from the beginning that , 
 she would have to defend at all hazards her principle of 
 spiritual independence, as defined in the history of her 
 constitution. Therefore she showed no disrespect to the 
 Court of Session in allowing it no control in her spiritual 
 affairs, but only respected her own duty, 
 
 These general views may be thus applied to the par- 
 ticular case. 
 
 

 QUESTION EXAMINED. 115 
 
 The civil court had to protect the civil rights and 
 interests of the patron and of the candidate. 
 
 The civil questions relating to the patron in such cases 
 are such as these: Whether or not he be the lawful 
 patron; whether or not he have presented at the right 
 time; whether or not he have forfeited the right of pre- 
 sentation pro hac vice on account of delay in making a 
 duly qualified presentation, and so forth. If on such an 
 occasion, say the defenders of the Church, a Church court 
 is summoned before a civil court, it appears, properly 
 speaking, not in the quality of a spiritual court, but in 
 that of a party at civil law, as it were in that of a board of 
 guardians of the temporalities, or in that of a patron, 
 inasmuch as it claims the jus devolution, etc., and implicit 
 obedience is to be given to the decree of the competent 
 tribunal, whether this decree appear to the Church just or 
 wrong. 
 
 Lord Kinnoul could therefore have charged the Pres- 
 bytery with having laid claims to the jus devohttum, believing 
 to have presented Mr. Young at the proper time as a 
 qualified presentee. The Court of Session could then 
 have found, according to its conscientious understanding of 
 the statutes, that, as non-acceptableness constituted no 
 disqualification, Lord Kinnoul had not forfeited his right of 
 presentation, and the Presbytery had not acquired the jus 
 devolutum. Lord Kinnoul might then have refused to 
 present a second candidate, since to him, as to the Court of 
 Session, non-acceptableness appeared no legal ground of 
 rejection of his candidate before trial. But if the Pres- 
 bytery on its side felt itself in conscience again obliged to 
 refuse to intrude Mr. Young on the congregation, Lord 
 Kinnoul could have had recourse to the General Assembly. 
 
 Here, either the matter would have ended, or, as there 
 could be no doubt of the decision of the General Assembly, 
 
 i 2 
 

 lit) SCOTTISH CHURCH 
 
 it might have been the occasion of the Legislature's, 
 framing a law by which the present relation of the two 
 independent courts (the civil and ecclesiastical) under 
 which such collisions were possible, might have been con- 
 stitutionally regulated and improved; but the Legislature 
 alone could do this, and it would little become the Court of 
 Session, as one party in the cause, unconstitutionally to 
 usurp the position of controller of the supreme Eccle- 
 siastical Court in spiritual matters. 
 
 If Lord Kinnoul thought fit to present no new candidate, 
 the duty was incumbent on the Presbytery, in watchfulness 
 over the spiritual interests of the congregation, themselves 
 to send a minister, as the people were not to be suffered to 
 remain without cure of their souls ; but they would have 
 done this, not jure devoluto, but as temporally supplying a 
 necessity ; and whether after the decision of the Court of 
 Session, the patron, the candidate, or the widow fund 
 should have received the emoluments of the place, or 
 however else the temporalities of the Church might have 
 been to be disposed of in such cases, the Church would 
 have had no right to decide. This, however, would have 
 been certain, that the minister during Mr. Young's lifetime 
 would have had no right to the emoluments. 
 
 If the Court of Session, say the most reasonable and 
 moderate of the defenders of the Church of Scotland, had 
 thus remained within its own province, all the mischief 
 committed would have been avoided. An incalculable 
 series of cases would have arisen, in which the spiritual 
 act of confiding the office could not have been followed by 
 the civil act of granting the emoluments. This would have 
 been a sad but imperative motive to the Church to recon- 
 sider her rightful and lawful, but obnoxious measure, while 
 she was yet in a good understanding with the State, and 
 before the rise of any bitter war of principles, and so to 
 
QUESTION EXAMINED. ' 117 
 
 alter it, that all interests might have been easily satisfied. 
 It would have been not only just and lawful, but con- 
 ciliatory and prudent on the part of the State's courts, to 
 have remained within this line in its proceeding against 
 the Church. And the guardians of the law themselves 
 committed an unlawful infringement into a province not 
 their own, when not content with performing that which 
 belonged to them, namely, to refuse temporal things, they 
 undertook that which did not belong to them, namely, to 
 command spiritual things. 
 
 It was certainly the duty of the Court of Session to 
 protect the rights of the patron; but what is the great 
 injury which the Veto Act inflicted on the patrons? Did 
 it take from them the right of presentation? By no 
 means ; the minister finally admitted is at all events their 
 presentee. An absolute patronage is an absurdity. Con- 
 ditions must always exist, under which alone the Church 
 can be obliged to accept a presentee. These conditions, 
 one may say, restrict the patrons to present only from 
 a certain class of individuals who are capable of fulfilling 
 them. Suppose, now, that the " acceptdblencss" of the 
 Veto Act be an entirely new condition; then the injury 
 done to the patron's rights would have been that of re- 
 stricting him to the presentation of such candidates only 
 as would have been willingly received by the congregation; 
 but such ones as could only be placed over a congregation 
 by overruling forcibly their conscientious reclamation, 
 would not have been henceforward in his power and right 
 successfully to present. Is this a subject for a patron to 
 complain of? Every honourable patron is rationally sup- 
 posed to bear this principle of Non-intrusion in his own 
 conscience ; and if so, would find nothing in the Veto Act 
 which would restrict his rights. But if patrons are to be 
 found who have more at heart to serve certain personal 
 
118 SCOTTISH CHURCH 
 
 ends than to consult the spiritual wants or even the just 
 wishes of a Christian congregation, then to every Church 
 one might most heartily wish an efficient check against the 
 rights of unprincipled patrons. 
 
 It is alleged, that the patron is more capable of judging 
 of the spiritual wants of the congregation than the congre- 
 gation itself; and that the wishes of a congregation are 
 often governed by such caprice, that it is prudent to give 
 them no occasion for indulging this. In Scotland the 
 former allegation is not generally applicable, especially 
 where that happens, which is so common in Scotland, that 
 the patron is not a member of the Scottish Church, or that 
 he is an absentee. The latter allegation belongs to the 
 province of discipline, which is to be exercised by the 
 Presbytery, and not by the patron. 
 
 Butzs the " acceptableness " an entirely new condition? 
 In the former section the writer has endeavoured to prove 
 that it is not. The "Call" existed; that it has been a 
 thousand times unconscientiously treated by the Moderates 
 does not deprive the Church of the right of treating it 
 conscientiously at the time of re-awakening of her public 
 sense of duty. 
 
 But it is said, the Veto Act is not the Call. At any 
 rate, it is formal!?/ a new enactment; and the Church 
 ought not to have framed such a measure independently. 
 It has already baen shown that the Church bond fide could 
 suppose to have the approbation of the State for her 
 proceedings; and it must appear to every unprejudiced 
 mind that the Veto Act was a much more mild and unpre- 
 tending measure than the simple revival of the actual 
 Call would have been. But even admitting that the 
 Church has in this respect not acted with sufficient regard 
 and consideration towards the State, (which, however, is 
 not really the case,) it does not follow that she has acted 
 
QUESTION EXAMINED. 119 
 
 unlawfully. In the following section the writer will endea- 
 vour to prove that an Act of this sort was completely 
 within the constitutional power of the General Assembly; 
 and we must deny the legality of the Church of Scotland 
 altogether, which is further than any one has intended to 
 argue, if we would test the Acts of her Assemblies by 
 the principles according to which she has been recently 
 treated by the courts of the State. Previously to the year 
 1638 there were no probationers in the present sense of the 
 word. The limitation of the presentation to probationers, 
 and many other preliminary things requisite for taking a 
 presentee on trial, are also introduced purely by the 
 Church; and neither then nor later have the State or 
 a single patron set aside a regulation which limited at 
 once the sphere of presentable individuals far more than 
 the Veto Law. The possession of the right of Veto with 
 respect to presentations on the side of civil patrons is 
 inherent in the nature of the Church as the spiritual body 
 of Christ. The arrangement of the best way of exercising 
 it is a question of wise Church administration. Those who 
 deny to the Church the right of passing the Veto Act 
 deny to her also the right of a conclusive Veto itself. 
 Thus the security of the Church as a Church of Christ 
 is injured; and it is against this that the Scottish Church 
 has asserted her spiritual independence, 
 
 As concerns the presentee, Mr. Young, no one will deny 
 that his personal rights were to be protected by the Court 
 of Session. The proceedings of the Church against him 
 have been publicly and emphatically denounced as a 
 "frightful persecution" against which, " as a British 
 subject" he had a right to be protected. May God defend 
 us from priestcraft and spiritual tyranny, whatever form 
 they may assume ! 
 
120 SCOTTISH CHURCH 
 
 Let us examine this accusation narrowly and determine 
 its worth. 
 
 As a British subject, Mr. Young has doubtlessly the 
 general right of demanding protection of his particular 
 and personal rights from the State; but what these parti- 
 cular rights are does not appear from the mere term, 
 " British subject," but must be submitted to a closer 
 examination. Now, the rights which were here to be 
 protected were those of a probationer of the Scottish 
 Church. When Mr. Young received from his Presbytery 
 his license to preach the Word of God from the pulpits of 
 the Church of Scotland he received one spiritual privilege 
 from the Church, and not from the State. If to this 
 be replied: " Not from the Church in abstracto, but from 
 the Church as established by law in Scotland;" and if on 
 this account it be maintained that the State indirectly 
 concurs in the matter, the answer is just. But what 
 follows ? That the State has not only to protect the rights 
 of Mr. Young, but also those of its Established Church in 
 relation to one of her probationers. 
 
 What are now these mutual rights ? 
 
 The Church gives the license to the probationer and 
 thus opens to him the possibility of practising a profession . 
 which must be supposed dear to him, and also of obtaining 
 means of living. The probationer, on the other hand, 
 solemnly engages on his side 
 
 " To submit himself to the discipline and government of 
 the Church. 
 
 " To subject himself to the several judicatories of this 
 Church. 
 
 " To the utmost of his power to assert, maintain, and 
 defend the doctrine, worship, discipline, and the government 
 of the Church by Kirk Sessions, Presbyteries," &c., &c. 
 
 We find that since the yea*r 1582 part of this disciplii 
 
QUESTION EXAMINED. 1*21 
 
 of the Church has been the Act of Assembly, which is 
 guaranteed and still unrepealed, and which hitherto has 
 never been lost sight of by any civil court, by virtue of 
 which no candidate or minister shall seek to acquire a place 
 " by any absolute gift, collation, or admission by the civil 
 magistrate or patron, by letters of horning, or whatsoever 
 other means than is established by the Word of God and 
 Acts of the General Assembly, under the penalty of 
 excommunication."* It was the highest of the judica- 
 tories, to obey which Mr. Young took oath, namely, the 
 General Assembly, which passed the Veto Act. Through 
 this Act a law of the Church, which the Church regarded 
 as one of its fundamental ones, was to be carried into effect. 
 Of the Church so constituted, and under conditions so 
 framed, Mr. Young had the position of Licentiate., by 
 which he now strove to obtain an office in the Church. 
 
 Mr, Young has entertained no scruples of conscience to 
 obtrude himself with force, if necessary to his end, on a 
 reclaiming congregation, to keep, this congregation for 
 years without minister or religious administration, to disturb 
 the peace of the Church, and sow dissension throughout 
 the land : and for what object ? To protect his so-called 
 civil rights. To protect them against whom? Against the 
 Church, from whose hands he received the title to claim 
 these rights. To protect them by what means ? Through 
 means which subject him, by virtue of the guaranteed laws 
 and ordinances of this Church, to the penalty of excommu- 
 nication, through which his title, and all the civil rights 
 based on this title, vanish of themselves. Ought the civil 
 authorities to have encouraged such a mode of proceeding ? 
 Ought the State not to have esteemed the Church too 
 
 * In the following section the occasion of this Act will be related ; 
 and then it will be seen how perfectly it applies to Mr. Young's 
 
122 SCOTTISH CHURCH 
 
 
 highly as its Establishment to give it in prey to the mean 
 private interests of a contumacious candidate, even if the 
 dead letter of the law should have been on his side? 
 
 The Church of Scotland has maintained, under un- 
 worthy treatment, a worthy deportment throughout the 
 affair; but the greatness of her sacrifices contrasts strik- 
 ingly with the causes which have forced her to make them. 
 The Church had the power to punish Mr. Young's open 
 infringement of the law of 1582 with excommunication. 
 Would not the civil authorities in this case have been 
 consistently obliged to declare this act of excommunication 
 null and void; to declare that Mr. Young must neverthe- 
 less be taken on trial, and, if he were found qualified in 
 life and literature, that he should be inducted as minister 
 into a Church which had solemnly declared that he was 
 without her pale? To proceed consistently with their 
 other Acts they must have done this. This would only 
 have been a rather more clear and striking manifestation 
 of the confusion which had been created by overlooking 
 the veritable limits of jurisdiction of different courts, and 
 which really exists in all the later decisions against the 
 Church. 
 
 When the Church determined not to direct her eccle- 
 siastical censure against Mr. Young, but to leave him a 
 title, under the protection of which he was busied in 
 defying and disturbing her, she acted worthily and, at 
 any rate, in a spirit which savours little of the "frightful 
 persecution" with which a distinguished lawyer has 
 charged her. 
 
 The Auchterarder Case and the House of Lords. 
 
 It is with the greatest respect to the highest judicial 
 tribunal of Great Britain, that the author humbly declares, 
 that to the best of his judgment he cannot conclude other- 
 
 
QUESTION EXAMINED. 123 
 
 wise, than that the Scottish Church is free from the 
 charge which the decision of this tribunal has brought 
 against her. 
 
 The Auchterarder case came before the House of Lords 
 by the appeal of the Church. Since the House of Lords 
 only busied itself to pronounce whether the decision of the 
 Court of Session was right or wrong in the particular case 
 before them, it had neither occasion nor intention, it would 
 appear, to give an exact authoritative definition of the 
 constitutional provinces of jurisdiction of Church and State, 
 and it had no intention of defining the sphere of action of 
 a Presbytery of the Scottish Church. But every one will 
 admit, that this particular case involves, as history clearly 
 enough proves, the most important questions of principle, 
 ^nd, therefore, the decision of the Lords must have 
 depended on their views of these principles, whether 
 expressed or implied. 
 
 The Church, on the other hand, appealed to the House 
 of Lords, without giving a definite, notice of the invasion 
 which the Court of Session had, in its opinion, made into 
 the province of her spiritual functions. This invasion was 
 hitherto confined to words, though these were of a suffi- 
 ciently threatening nature ; however, it had not yet assumed 
 the form of executive force, and it was certainly desirable 
 and becoming to the Church to avoid even the appearance 
 of over-hasty and premature defence of rights. 
 
 When the Lords had confirmed the decision of the Court 
 of Session, the position of the Church, according to the 
 Motion of Dr, Chalmers, introduced into the Assembly in 
 1839, was as follows : 
 
 In the first place, the Church recognised, that the 
 dispute, in reference to the civil fruits of the benefice of 
 Auchterarder, was finally decided, and that she was bound 
 implicitly to obey the decision. 
 
126 SCOTTISH CHURCH 
 
 the case, she had no intention of making the Lords the 
 authoritative judges of what rights and duties were inherent 
 in her as a Church of Christ. This is a summary of the 
 views entertained by the Church in the debate on the 
 spiritual independence of the Church, which took place in 
 the House of Assembly in 1838, and under which the 
 Resolution on spiritual independence was passed. Thus 
 the Church is not guilty of childish inconsistency. 
 
 The meaning of the appeal was simply this : The 
 House of Lords was the court of appeal from the Court of 
 Session. The Church hoped, that the House of Lords, 
 removed from the locality and heat of the parties, would, 
 from a higher point of view, recall the Court of Session 
 into its proper sphere of jurisdiction, and also, perhaps, 
 assign the temporalities of Auchterarder, according to 
 Scottish law, to him to whom the Church should assign the 
 spiritualities. This would, at any rate, have included a 
 recognition of the legality of the Veto Act, and would 
 have provided, for all future times, against the possibility 
 of separating the benefice from the charge in cases similar 
 to the Auchterarder. But if these hopes of the Church 
 were too sanguine, she did not doubt that the House of 
 Lords, even in denying during Mr. Young's lifetime the 
 emoluments of the Auchterarder benefice to the minister 
 placed there, would, at all events, recall the Court of 
 Session from what the Church considered an encroach- 
 ment on her spiritual privileges. In this case, a course 
 remained open to the Church, by which it was possible to 
 reconcile her temporal interests with her spiritual ones 
 without displeasing the State, one which she could have 
 pursued with honour. But the unconditional confirmation 
 of the decision of the Court of Session, as also the views of 
 certain leading Members of the House of Lords, brought to 
 light during the course of the debate, by which it became 
 
QUESTION EXAMINED. 127 
 
 clear to the Church that she was deeply misunderstood, 
 and that her best recognised rights would be from that 
 time exposed to doubt and jeopardy, forced her to assume 
 the position of the above-mentioned Resolution moved by 
 Dr. Chalmers, a Resolution which was not inconsistent 
 at all. 
 
 In short, the Scottish Church thus defends herself: 
 " We submitted to the civil court a civil question the 
 title to the manse, glebe, and stipend of Auchterarder. 
 The Court adjudicated beyond our submission, and decided 
 upon the title to the cure of souls and the ministry of the 
 Gospel. We bowed to her decision upon the first title, but 
 rejected her decision upon the second. In the words of 
 Dr. M., we c split the judgment.' This, in our estimation, 
 was the Church's duty, though in the opinion of Dr. M. it 
 was the Church's offence." 
 
 What of the other accusation ? 
 
 This is emphatically laid to the Church's charge, and 
 may be thus expressed: The refusal of the Church to 
 take Mr. Young on trial, in pursuance of the decision of 
 the civil court as confirmed by the House of Lords, is " an 
 open resistance to the law of the land," and is in contra- 
 distinction with the Church's own confession, which 
 declares, that " they who upon the pretence of Christian 
 liberty shall oppose any lawful power, or the lawful exercise 
 of it, whether civil or ecclesiastical, resists the ordinance of 
 God." 
 
 With respect to this quotation it may be first observed, 
 that these words of the Confession are a two-edged sword. 
 They speak of the opposition to a lawful power or the 
 lawful exercise of it. Now, if it should be found that the 
 lawful power of appointing or rejecting ministers of the 
 Church belongs conclusively to the Church courts and not 
 
128 
 
 SCOTTISH CHURCH 
 
 to the civil courts, it is then the latter who " resist tne 
 ordinance of God;" and the former, by opposing the 
 unlawful exercise of such power by the civil courts, 
 maintain God's ordinance. 
 
 It is clear that with such vague citations nothing is 
 advanced. The question is precisely, What is the law of 
 the land? The accusation against the Church definitely 
 expressed is as follows: " It is presumption in the 
 Church, approaching to rebellious defiance, to maintain, 
 after a deliberative body of such eminent men as the 
 House of Lords has interpreted the law, that another 
 interpretation be the true one." 
 
 The following is substantially and almost verbally what 
 the supporters of the Free Church answer to this. The} 
 say: 
 
 1. The jurisdiction of the House of Lords extends in 
 this case no farther than that of the Court of Session., 
 The House of Lords is the court of appeal from the Court; 
 of Session, and its decree gives indeed a great increase of 
 moral weight to the decision of the latter, but no additional 
 legal power. This point must be fully conceived and kept 
 in view in order to understand, that what the Church 
 might do without presumption and defiance in reference to 
 the Court of Session, cannot be interpreted as presumption 
 and defiance in reference to the House of Lords. 
 
 2. The Scottish Church pays due honour to the two 
 Noble Lords who were the leaders of opinion in the 
 Auchterarder case. She admires the talents of the one 
 and the dignity and love of justice of the other. But she 
 thinks she shows no want of respect in believing that this 
 question involved principles, and pre-supposed minute 
 acquaintance with subjects which, especially in that early 
 stage of the controversy, might be justly supposed not to 
 have lain within the sphere of the immediate interest of 
 
QUESTION EXAMINED. 1*29 
 
 the Learned Judges. And as they are not infallible and 
 omniscient, no disrespect might be found in the fear that 
 the considerations of the Noble Lords may have been 
 involuntarily affected by English views, although the con- 
 stitutional position and character of the Scottish Church is 
 quite different from that of the English Church, and their 
 decision might have therefore, in this case, not the pre- 
 sumptive weight which it would implicitly possess in a 
 purely civil matter. 
 
 3. This fear, continue the Scotch, was not only not 
 diminished, but increased by the circumstance that both 
 the Noble Lords have held the case as so completely easy 
 and clear, that both emphatically declare that they have 
 not the slightest doubt concerning it, and do not see the 
 least difficulty in it. In this case men, as Lords Glenlee, 
 Moncrieff, Jeffrey, Fuller ton, Cockburn, in the Court of 
 Session itself, are of an opinion directly opposite to that of 
 these two Noble Lords. Men also of distinguished legal 
 attainments, such as Mr. Dunlop, Mr. John Hamilton, 
 Sheriff Monteath, a. s. f. in the General Assembly, and 
 in the midst of the Scottish Church, are of an opposite 
 opinion. The most intellectual, and, on that account, not 
 the less upright men of the Church, professors, ministers, 
 elders of the most educated classes of the nation, who 
 understand well all the laws and privileges of their Church, 
 although they are not lawyers by profession, are opposed to 
 them in opinion. Must not such a case, therefore, present 
 points which render an off-hand decision of almost elegant 
 ease and simplicity rather doubtful ? 
 
 4. And this suspicion, say the defenders of the Free 
 Church, unfortunately is confirmed by the details. One of 
 the Noble Lords maintained, with unhesitating confidence, 
 that the patron in Scotland has the same position as the 
 patron in England, although a Scottish benefice has a very 
 
130 SCOTTISH CHURCH 
 
 different relation to Church and State from which an 
 English living has, which difference necessarily affects the 
 position of the patrons. The difference between the case 
 in which a probationer is presented, who is a person not 
 yet ordained, and that in which a minister already ordained 
 only moves from one cure to another, has been overlooked : 
 but we come to a point of much more importance than 
 these. Both the Noble Lords expressly lay down the 
 doctrine, that the word " qualified" has in the statutes a 
 fixed technical sense, and refers purely to " life, literature, 
 and morals," and that the judicial power of the Presbytery 
 in deciding whether a presentee may be admitted or not, is 
 limited to the question whether or not he satisfies in these 
 three points. This doctrine, say the Scotch, appears to be 
 almost the sole basis of principle on which the decision of 
 the Lords is founded ; but this has been quite enough to 
 excite the greatest disturbance throughout Scotland. All 
 parties in Scotland agree that this principle is contrary to 
 the recognised rights of the Presbytery, and entirely 
 foreign to the immemorial practice of the Scottish Church. 
 There are many things, they say, of which the Presbytery 
 is entitled and required to judge, and which are not 
 included under the heads of " life, literature, and morals ;" 
 for instance, whether or not the candidate have the requisite 
 voice and health for a large parish : whether or not lie 
 understand Gallic, when this is necessary in a parish (a 
 point hardly to be considered one of literature) ; whether or 
 not his being concerned in affairs connected with certain 
 ancient prejudicive relations of clans (of which a recent 
 case has presented itself) ; and many other subjects which 
 cannot now be cited, but which destroy this narrow 
 arbitrary sense of the word " qualified." The Moderates, 
 as well as the Free Church, reject this view; and in this 
 point Dr. Cook's motion on spiritual independence, in 
 
QUESTION EXAMINED. 131 
 
 1838, coincided with that of Dr. Chalmers. Even the 
 Dean of Faculty rejects this principle, and in his well- 
 known letter, finds no other way of getting out of em- 
 barrassment than by making the surprising assertion that 
 the Noble Lords have never maintained such a thing. 
 These assertions which have fallen from those Noble Lords, 
 are the very cause of those doubts, to remove which the 
 recent " Church of Scotland Benefices Bill" has been 
 passed. The Noble author of this Bill himself declared, 
 in the warmth of the debate, that those principles of a 
 certain Noble opponent destroyed the Scottish Church. It 
 is very natural, say the defenders of the Church of Scot- 
 land, that certain Noble Lords have zealously protested 
 against the Bill being considered as a " declaratory" one, 
 since in this case it would have appeared, what it really is, 
 a formal acknowledgment, and an official declaration, that 
 certain misconceptions of Scottish Church law had been 
 made in the Auchterarder case. The Noble author of the 
 Bill was therefore considerate enough to remark, that the 
 contents of this Billhave nothing to do with the decision 
 of the Lords in the Auchterarder case, since in this 
 decision the subject was purely the question whether or 
 not the Presbytery be bound unconditionally to take the 
 lawful presentee on trial before judging of his admissibility 
 or non-admissibility. This remark of the Noble Lord, 
 continue the Scotch, was certainly well intended ; but it is 
 not tenable. For the duty of the Presbytery to take a 
 presentee on trial is not, as the Noble Lord himself knows, 
 an absolutely unconditional one. There are certain pre- 
 liminary conditions, of which the Presbytery has to judge 
 previously to taking him on trial ; for instance, whether or 
 not the candidate be presented by the lawful patron ; 
 whether or not he be a probationer of the Scottish Church ; 
 whether or not he have attended one of the Scottish 
 
 K 2 
 
132 SCOTTISH CHURCH 
 
 Universities, according to the rules of the Church, or. 
 failing in this, have been resident in Scotland six months 
 previously to his presentation ; whether or not he have the 
 requisite age, many other requisite certificates and testi- 
 monials, and so forth. 
 
 There exist, therefore, preliminary conditions, which 
 must be fulfilled before the Presbytery take him on trial. 
 One of these conditions has been from of old the Call by 
 a congregation. This condition had been unconscientiously 
 treated by the rulers of the Church themselves in many 
 many cases, to the deep regret and prejudice of many a 
 congregation ; but it had never become legally invalid, and 
 it was still the right and duty of the Presbytery to observe 
 it. The Veto Act was nothing else but an instruction to 
 the Presbyteries as to by what they should recognise the 
 validity of the Call, namely, the absence of a protest by 
 the majority of the male heads of families in full com- 
 munion with the Church ; and as this was failing .to Mr. 
 Young, the Presbytery of Auchterarder was not only not 
 bound to take Mr. Young on trial, but, on the contrary, 
 legally forbidden to do so. It had no more right to do so 
 than it would have had if the congregation had desired him 
 for their minister, but Lord Kinnoul had not presented 
 him. The Presbytery, therefore, declares that " he is not 
 qualified" for the charge of Auchterarder. To this the 
 Court of Session replies, You must take him on trial in 
 order to discover whether or not he be qualified. The 
 Presbytery answers. We know already that he is not 
 qualified, because he fails in this preliminary condition, 
 which, according to Scottish law, is essential to his qualifi- 
 cation for the pastoral charge of any parish. To this the 
 House of Lords gives the additional refutation, No, this 
 is not part of the qualification of a presentee ; the qualifi- 
 cation consists only in such and such elements, points 
 
QUESTION EXAMINED. 133 
 
 purely founded on the personal qualities of the man, and 
 not on the opinion of others (the parishioners) concerning 
 his qualities, etc. Is it not then clear that the decision, 
 whether or not it were a constitutional duty of the Pres- 
 bytery to take Mr. Young on trial, is dependent on the 
 sense assigned to the term " qualified presentee," by lawful 
 Scottish Church practice? The Free Church closes her 
 defence and remonstration by saying, Since it is notorious 
 that the sense attached to this term by the House of Lords 
 is too restricted, we cannot conceive that we incur the 
 charge of disrespectful presumption in maintaining that 
 the decision of the House of Lords on our appeal requires 
 reconsideration. 
 
 
 An impartial reviewer of these things will grant that 
 the Church was in a very unhappy position. This position 
 had been produced, on the one hand by a deed of her own 
 (the passing of the Veto Act), to which no blame can be 
 attached; and, on the other, (to express it as inoffensive 
 as possible), by a tragical complication of circumstances 
 and misunderstandings. How willingly, instead of lament- 
 ing the frowns which she has met with in her misfortune, 
 would the Church have thanked the Legislature for the 
 generosity of granting her a measure which might have 
 restored peace without demanding the sacrifice of con- 
 science and honour. It is true there have been transactions 
 with intent of framing a legislative remedy, and it would 
 be very unfair to disconnect the most grateful acknowledg- 
 ment from such names as Aberdeen, Argyll, Sinclair; but, 
 on the other hand, it would be just as unfair to blame the 
 Church for considering it against her conscience to consent 
 to any of the offered remedies, except that of the Duke of 
 Argyll, which met with disapprobation from the other 
 party. 
 

 134 SCOTTISH CHURCH 
 
 The Church is charged with having by her obstinacy 
 preserved her unhappy position, whilst an outlet from it 
 has always been at hand. That is to say, her adversaries 
 maintain that the moment that the civil authorities declared 
 the Veto Act to be illegal, the Church ought to have 
 repealed the measure, even if she considered it herself 
 lawful. 
 
 But let these accusers put themselves in the place of the 
 Church. She had not passed that law for the pure pleasure 
 of legislating, but it was forced from her by the most 
 pressing circumstances; and these circumstances continued 
 to exist, and would on the repeal of the Veto Act have come 
 into action with redoubled vigour. The duty of the 
 Church towards herself, towards the nation, and towards 
 the State demanded such a measure, and continued to 
 demand it. It is true it would little become a Protestant 
 General Assembly to imitate Popish claims for infallibility, 
 but to maintain the gravity and dignity of her legislation 
 before her people is certainly a point of sacred duty, since 
 her authority and effectiveness is intimately affected by it. 
 Could the Church stamp as a blunder to-day that which 
 she had declared yesterday to be a fundamental law of her 
 constitution ? 
 
 The Church of Scotland is of a determined and active 
 character, severe and sharp, like the forms and the atmo- 
 sphere of the mountains of the land. Such characters 
 experience the extremes both of favour and enmity. Thus 
 it is with the Scottish Church ; she has the most faithful 
 children and the most bitter adversaries. However, her 
 intrinsic merits, in spite of all asperity of form, in spite of 
 all violent language of individuals, renders kindness towards 
 her a duty of justice. The Scottish Church is, in the 
 opinion of the writer, not to be blamed for having refused 
 an unconditional repeal of the Veto Act. Her opponents 
 
 
QUESTION EXAMINED. 135 
 
 had driven her into such a position that the simple repeal 
 of the Veto Act and the surrender of two vital principles 
 had become one and the same thing. It is highly creditable 
 that the Church would rather surrender her temporalities 
 than her conscience, and would repeal the Veto Act only 
 under the condition that the spiritual rights of her people 
 and the spiritual independence of the kingdom of Christ 
 on earth, according to the conscientious understanding of 
 the Scottish Church, around which the controversy revolved, 
 should be guaranteed. 
 
 The point which is maintained against the Church from 
 the side of the State with the greatest appearance of 
 justice, and in which the judgment of the civil court had 
 not, as it had in its definition of the sense of the word 
 " qualified" the whole Church against it, but was only 
 opposed by the majority in her, now demands especial 
 attention. It is the following: 
 
 " It is said, that according to the constitution of the Scot- 
 tish Church, the examination and rejection or admission of 
 the candidates has to rest with the Presbyteries of the Church. 
 By the Veto Act a right is conferred on the congregations, 
 by which these interfere with the judgment of the Presby- 
 teries, and, in certain cases, prevent it altogether, and that 
 thus the rights of the Presbyteries are infringed on. But 
 that, what is a right of the .Presbyteries with regard to the 
 Church is a duty to be performed with regard to the State ; 
 for the State, on establishing the Presbyterian Church, 
 acknowledged a Church in which the decisions of the 
 Presbyteries concerning the admissibility of candidates, not 
 those of the congregations, were considered as lawful, and 
 that in suffering an infringement of this right the Church 
 suffered an injury to be inflicted on the interests of the 
 State." 
 
136 SCOTTISH CHURCH 
 
 Such is the objection expressed according to the view 
 of the State. Expressed according to the view of the 
 minority of the ^Church as opposed to the then majority 
 (the present Free Church), it would run as follows: 
 
 " The government of the Church is confided by Christ 
 exclusively to the office-bearers of the Church. The 
 examination and appointment of ministers belongs to the 
 government of the Church ; in granting to the congrega- 
 tions this important part of Church government she not 
 only permits the infringement of a right, but is guilty of 
 the dereliction of a duty imposed on her by her Divine 
 Head." 
 
 The present Establishment of Scotland, in rejecting the 
 principle of Non-intrusion, and giving up the principle of 
 spiritual independence in the sense of the Free Church, 
 has acquiesced in the views of the State on both these 
 points in adopting the Church of Scotland Benefices Bill- 
 Thus we may consider that there is in this moment no 
 expressed difference of view between the State and the 
 Established Church concerning the constitution of the 
 Church and her relations to the State; and thus one 
 answer may be jointly given to both forms of the objection. 
 
 The Free Church may commence her defence in the 
 words of one of her most zealous opponents: 
 
 "The principle of the constitution of 'Presbytery, as 
 established by law (says that influential Scottish lawyer in 
 his letter), is, that all matters respecting the religious 
 interests of the parish, connected with the settlement of the 
 person so nominated, and all questions as to his qualifica- 
 tion shall be decided by the Church court as a part of the 
 government of the Church, which the State chose to 
 establish and recognise as its Church.' 5 
 
 Well and good. Now it can hardly be denied that the 
 blessed or not blessed labour of a minister in a congrega- 
 
 
QUESTION EXAMINED. 
 
 tion is one of the first, if not the very first, 
 respecting the religious interests of the parish," ant 
 according to human calculation, decidedly depends on the 
 confidence and affection which the minister enjoys among 
 his congregation, at least in a Church as the Scottish. If, 
 therefore, the Presbytery were to see that the condition 
 and disposition of a congregation were such that, in all 
 human probability, the pastoral relationship would be far 
 otherwise than the religious interests of the parish 
 demanded, it would not only have the right, but incur the 
 duty of rejecting the presentee. But this discretionary 
 power is part of the Church government, which is to be 
 modified by the Church according to exigences, since the 
 Presbyteries, holding it from Christ through the Church, are 
 responsible for its exercise under Christ to the Church, and 
 may be appealed from to the Church, as represented in the 
 General Assembly. It is a mis-statement that it be an 
 expressed condition on the part of the State at the estab- 
 lishment of the Scottish Church that the Presbyteries, and 
 they alone, for ever, and under immutable conditions, are 
 to judge of the presentees ; and it is only contrived for 
 raising the appearance of the Church's having broken the 
 conditions of her establishment in placing a share in the 
 Veto-right in the people. If the Church, for instance, 
 were now to find it expedient to her internal government 
 to examine all her candidates before the General Assembly, 
 (as the Wesleyans in England do before their Conference,) 
 and to ordain them only through the Moderator for the 
 time being, (as the Wesleyans through their President,) so 
 that the single Presbyteries had no more to do with the 
 matter, she would doubtlessly, with regard to the State, have 
 a right to do this, and could by no means be accused of 
 acting against the conditions of her Establishment, The 
 General Assembly has therefore the constitutional right of 
 
138 SCOTTISH CHURCH 
 
 framing regulations for the ecclesiastical functions of the 
 lower courts of the Church and of her individual office- 
 bearers. The Veto Act was a regulation of this kind, 
 framed by the General Assembly, and even approved of 
 expressedly by a large majority of the individual Presby- 
 teries, to give instructions to the Presbyteries in the 
 exercise of their discretionary power. In this Act the 
 Church declares, under the form of a general rule, how she 
 desires her judgment on the fitness of candidates in the 
 case of their non-acceptableness .to the congregations to be 
 in future acted upon by the Presbyteries. The latter, in 
 giving efficacy to the Veto Act do not resign their right of 
 judgment in respect to the congregation, but exercise it in 
 every several case in conformity with the general judgment 
 of the Church, expressed through her organ, the General 
 Assembly, which, instead of deciding separately on each 
 case in which the Presbytery found non-acceptableness in 
 the presentee with regard to the congregation, gave a 
 general rule to the Presbyteries how to form their judg- 
 ment in every case of the kind. This is not a hierarchical 
 proceeding, but, on the contrary, it was rather a hierarchical 
 proceeding in the Moderates, in indulging the unrestrained 
 arbitrium of the Presbytery with the decision, whether the 
 rights and wishes of a Christian congregation should be 
 heeded or not. But as it is under the Veto Law, the 
 people exercise their right without the Church neglecting 
 her duty. The Presbytery ascertains the state of the 
 congregation with regard to the settlement about to be 
 made, in order to discover whether or not those circum- 
 stances exist, which the Church has pronounced to be in 
 her judgment " injurious to the religious interests of the 
 parish;" and if the Presbytery find them to exist, they 
 give effect to the judgment of the Cliurch, a judgment with 
 which they have specially declared their own to be identified 
 
QUESTION EXAMINED. 139 
 
 by the operation of the Barrier Act. If every well-dis- 
 posed Scottish congregation constitutionally has this right 
 of consenting and dissenting according to the Act of 1690, 
 as the Free Church believes it has, the Church does its 
 duty in recognising and protecting it, and is not backward 
 in fulfilment of her duty. The right of judging of the 
 gifts requisite to her office-bearers rests with the collective 
 Church. The Moderates, however, argue as though the 
 Church consisted in the Church courts and office-bearers 
 alone ; but this is far from being a Scottish principle, or 
 even a Protestant one. The office-bearers and the people 
 together are the Church in reality. The right of Veto is 
 inherent in the Church, and the people has its participation 
 in it. As to the form in which the Veto is exercised by 
 the Church, whether concentrated in one point or divided 
 into several, whether placed here or there, is a matter of 
 wisdom of the government of the Church, who has 
 perfect freedom in this matter, with relation to the State, 
 as long as its measures do not exceed its constitu- 
 tionally-granted powers and infringe no civil rights. 
 
 However, this last assertion might lead to doubts, which 
 must be set at rest before the foregoing statements can be 
 entirely freed from doubtful validity. 
 
 Much is spoken, in the course of this controversy, of 
 "spiritual matters" and of "civil matters." The former 
 are said to belong to the province of the Church alone, the 
 latter to that of the State. The decisions concerning the 
 former are said to belong conclusively to the General 
 Assembly, whilst those concerning the latter are said to 
 belong conclusively to the Court of Session. 
 
 The Church complained of the State having infringed 
 her spiritual rights, whilst, on the side of the State, we 
 have heard it said, again and again, that the State had not 
 the slightest intention of interfering in really spiritual 
 
140 SCOTTISH CHURCH 
 
 matters, nor that it had interfered in them at all. But, 
 say the opponents of the Church, it is difficult to distin- 
 guish, by a general and infallible test, what is spiritual, 
 and what is temporal, or civil; and it becomes doubly 
 difficult to do this in the case of an Established Church. 
 There arises a kind of things, which have a mixed 
 character, which are connected with both Church and 
 State, and about which it is difficult to decide exactly 
 whether they belong to the province of the Church or of 
 the State. However, they continue, and this is the arbi- 
 trary conclusion of their reasoning, however, in all cases 
 in which a dispute arises concerning the limits of these 
 provinces, the State has to decide conclusively, and the 
 Church to obey implicitly. 
 
 Let us hear an expression of this argument, which has 
 the weight of the highest authority. 
 
 Sir James Graham says, in his celebrated letter: 
 " Whether a particular matter in dispute is so entirely 
 spiritual as to fall exclusively within the jurisdiction of the 
 Church courts, or whether it involves so much civil right 
 as to bring it, to a certain extent, within the jurisdiction of 
 the civil courts, may often be a difficult question, but it is a 
 question of law, and questions of law are decided in the 
 courts of law, and questions of jurisdiction are also decided 
 there, all subject to an appeal to the House of Lords, 
 which," &c. 
 
 A chain of arguments, even if they be purely abstract, 
 seldom fail, if they unite clearness and warmth of expression 
 with an appearance of consistency of principle, to produce 
 an imposing effect But all depends on whether or not the 
 particular case, in reference to which the arguments are 
 adduced, is really settled or even touched by them. The 
 writer humbly declares, that in his opinion the arguments 
 of that celebrated letter do not reach the point at issue. 
 
QUESTION EXAMINED. 141 
 
 Nevertheless, they have made, especially in England, such 
 an impression, that people have easily contented them- 
 selves with saying, " Whatever the case of the Scottish 
 Church may be, it is evidently so complicated, that it is 
 doubtful which side is in the right; and now that the 
 highest judicial court has pronounced decision, it is mis- 
 chievous folly in the Scottish Church still to hold out 
 against this decision." 
 
 Meanwhile, if we examine the case itself, the following 
 observations might appear founded : 
 
 Some persons thought it to be convenient to make a 
 distinction between spiritual and ecclesiastical matters, and 
 to give the appellation, ecclesiastical^ as well to certain 
 things which are in themselves civil, but are connected 
 with spiritual matters, as to such which are in themselves 
 spiritual, but to which civil matters are attached. Very 
 well, there is no objection to this ; only do not let us 
 confuse real distinctions in the nature of things by the use 
 of a wavering terminology, and raise by it the appearance 
 that it had been ecclesiastical rights only, not pure spiritual 
 ones, which the State had interfered in and was entitled to 
 interfere in. 
 
 A spiritual matter is quite distinct in its nature from a 
 civil one, and cannot be mistaken for a civil matter, nor a 
 civil one for a spiritual one. By human compact (between 
 State and Church) they may become connected with each 
 other, but they are, nevertheless, essentially distinct from 
 each other, and can never, by mere coexistence, form a 
 third class of a new nature. For instance, the "presenta- 
 tion of a candidate" is a right which relates to the Church ; 
 and if you will call it an ecclesiastical right, well and good, 
 but it nevertheless remains a civil right, being exercisable 
 by persons who do not belong to the respective Church at 
 all. Again, the admission of a presentee to the ministry 
 
142 SCOTTISH CHURCH 
 
 . 
 
 in the Church is a spiritual thing, although this carries 
 with it, according to the law of Scotland, the temporalities 
 of the place. 
 
 The writer thinks, that it would not perhaps be difficult, 
 either in theory or practice, to distinguish decidedly between 
 spiritual and temporal or civil matters. This is not the 
 place for theorizing, but we may be allowed to put the 
 question, Is there no simple test to decide whether or not 
 a certain point comes under the jurisdiction of the State 
 or the Church courts? Perhaps the following might 
 suffice : 
 
 " That which a court is entitled to enjoin on another 
 court to perform, it must be able to perform itself in a 
 case of urgency, the inferior court acting only as deputy to 
 the superior." 
 
 Now, the Presbytery refuses to examine and ordain 
 Mr. Young as minister over a certain congregation. Is the 
 Court of Session itself in a position to examine and 
 ordain him ? Obviously not. It can only put Mr. Young 
 in possession of the temporalities. The King, Lords, and 
 Commons together, cannot make any man a minister in 
 the Church of Christ. Why not? Not because their 
 power is at all limited in its proper province, but because 
 this does not lie in the province of their power. Thus, 
 therefore, the ordination appears a purely spiritual thing, 
 the performance of which belongs to the Church ; and since 
 the State has recognised the Church, and even established 
 her, it must certainly leave her conscientious liberty in 
 doing that which inherently and constitutionally lies in her 
 responsibility alone. By a similar process of reasoning, it 
 appears to the author, every single case of disputed juris- 
 diction might be decided. 
 
 
 In concluding this almost juridical portion of his treatise, 
 
 
QUESTION EXAMINED. 143 
 
 the author will take the liberty of presenting, in the words 
 of one of the ablest defenders of the Scottish Church, 
 Mr. Dunlop, a short sketch of the views the Church enter- 
 tains respecting her constitutional position, and the claims 
 which she founds upon it, and which the writer purposes 
 to justify, historically and legally, in the last section of this 
 treatise. 
 
 1. The Church asserts, that her courts are courts ; that 
 they are recognised as such by the State, and are possessed 
 of a certain jurisdiction, in the exercise of which they are 
 as independent of, and as free from control by, the Court 
 of Session, as are the Court of Justiciary and the Court of 
 Exchequer; and that, in regard to the subjects of that 
 jurisdiction, the inferior Church courts are subordinate 
 exclusively to the General Assembly, just as the Court of 
 Session is subordinate exclusively to the House of Lords. 
 
 2. She admits that the whole civil privileges of the 
 Establishment, and the emoluments of its ministers, and all 
 the civil, private, and personal rights of its individual mem- 
 bers, flow entirely from the State, and that all questions as 
 to the right to these are absolutely and conclusively subject 
 to the determination of the civil courts. 
 
 3. She contends, on the other hand, that the power to 
 admit to the functions of the holy ministry, and confer the 
 pastoral charge of a congregation, together with the whole 
 spiritual government of the Church, flows, not from the 
 State, but from the Divine Head of the Church, and that 
 it exclusively and absolutely belongs to the office-bearers of 
 the Church. 
 
 4. She conceives that this power was recognised by the 
 State to be in the Church, by the various statutes ratifying 
 the "liberty" of the Church, and, in a particular manner, 
 by the Act 1592, which established the Presbyterian Church 
 with full power " to put order to all matters and causes 
 
144 SCOTTISH CHURCH 
 
 ecclesiastical, according to the discipline of the Kirk;" and 
 expressly declared, that a previous Act, asserting the juris- 
 diction of the King and the King's courts, should " noways 
 be prejudicial, nor derogate any thing to the privilege, that 
 God has given to the spiritual office-bearers in the Kirk, 
 concerning heads of religion, matters of heresy, excommu- 
 nication, collation or deprivation of ministers, or any such 
 like essential censures, specially grounded and having 
 warrant of the Word of God," She further conceives, that 
 this inherent power was once more recognised by the State 
 (1690, 1707,) in the statutory ratification of her Confession 
 of Faith, which declares, that " The Lord Jesus, as King 
 and Head of the Church, has therein appointed a govern- 
 ment in the hands of Church officer^ DISTINCT from the 
 civil magistrate;" that the civil magistrate " may not 
 assume to himself the power of the keys ;" and that "it 
 belongs to Synods and Councils ministerially to determine 
 controversies of faith and cases of conscience," and " to 
 set down rules and directions for the better ordering of the 
 public worship of God and government of his Church" 
 
 5. She conscientiously believes, that in refusing to 
 ordain any one to the holy office of the ministry, and admit 
 him to the pastoral charge of a congregation against the 
 will of the Christian people, heads of families, in com- 
 munion with the Church, who shall solemnly declare that 
 they are actuated in their dissent " solely by a con- 
 scientious regard to the spiritual interests" of themselves 
 and the congregation, her courts have been acting only 
 within the jurisdiction inherently belonging and recognised 
 by the State to belong to them as Church courts, in a 
 matter falling within that "government" of the Church, 
 declared, by the Confession of Faith (which is ratified by 
 statute), to flow from the Head of the Church, and to be 
 "distinct from the civil government;" and she cannot 
 
QUESTION EXAMINED. 145 
 
 acknowledge, that the circumstance of the State having 
 attached a civil consequence to their proceedings in this 
 matter, can possibly change their spiritual character, any 
 more than attaching the civil consequence of the loss 
 of a benefice to deposition from the office of the ministry, 
 for heresy or immorality, can alter the spiritual character 
 of that act She admits, that the supreme civil power can, 
 at its pleasure, withdraw altogether the whole civil privi- 
 leges belonging to the Establishment, and that the Court 
 of Session can competently determine, in every particular 
 case, as to the right to the possession of a particular 
 benefice, and grant or withhold it from the individual 
 admitted by the Church to the pastoral office, according to 
 its own judgment, as to whether the requisites required by 
 law to entitle him thereto have or have not been present ; 
 but she denies the power of any civil tribunal to coerce her 
 courts in the execution of the spiritual powers of ordaining 
 and admitting to the pastoral charge, or of any of the 
 spiritual powers derived from her Divine Head. 
 
 She therefore believes, that the Court of Session, in 
 prescribing to them their duty in the exercise of this their 
 spiritual jurisdiction, has gone beyond the civil province, 
 within which alone it has any authority, and has encroached 
 upon the jurisdiction of the judicatories of the Church as 
 recognised by the State. 
 
 These are the views and claims of the now Secessional 
 Church of Scotland. Mr. John Hamilton says, with regard 
 to them : 
 
 " Some persons may, perhaps, at first be startled by the 
 announcement of a power which is represented to be 
 superior to all human control, and may be apt to think 
 that such pretensions are dangerous and portentous. But 
 
 L 
 
146 SCOTTISH CHURCH 
 
 the unnecessary alarms of such individuals will be speedily 
 allayed when they are reminded, that the uncontrollable 
 power thus asserted on behalf of the Established Church 
 is nothing beyond the power universally conceded, without 
 a shadow either of fear or of reserve, to every Dissenting 
 Church and body of Dissenters throughout the kingdom ; 
 and it need not, therefore, surprise any one to find, that 
 the State has not withheld from its own approved and 
 adopted Church rights and privileges which it freely con- 
 cedes to every other. Indeed, a moment's reflection may 
 satisfy every man that the existence of this underived 
 power, within the Church itself, is involved in the very 
 conception which one naturally forms of a Church of 
 Christ, and that such a power derogates in nothing from 
 the full and absolute power of the secular magistrate ; for 
 the Church's power relates solely to the religious offices 
 and duties of its own- voluntary members, extending to no 
 person or thing beyond them ; and even as it respects its 
 own members, what is called the power of the Church 
 involves not a shadow of secular authority and no com- 
 pulsive or coactive force whatever; applying itself solely 
 to the conscience and religious sentiments of its members, it 
 exhausts itself upon these, and there is end of it. Sua 
 naturd, therefore, the Church appears to be a community 
 essentially distinct from the State, having its own purposes 
 and modes of action, entirely different from the ends and 
 modes of action of the temporal power ; and the truth will 
 be found to be, that all alarms regarding the spiritual 
 power proper to any Christian Church, are substantially 
 identical with that most groundless alarm, which, at the 
 very first promulgation of our holy faith, the Jews 
 attempted to insinuate into the mind of their secular 
 ruler, when they told Pilate that our blessed Loi 
 
QUESTION EXAMINED. 147 
 
 assumed to himself the office of a King, and that, there- 
 fore, he would not be Caesar's friend if he let this man 
 go. But the answer, which Divine wisdom then made 
 to the charge, was a conclusive answer to every fear, and 
 is equally appropriate in every age of his Church, ' My 
 kingdom is not of this world.' '"' 
 
 L 2 
 
SECTION V. 
 
 HISTORICAL PROOF OF THE LEGALITY OF THE CLAIM OF 
 THE CHURCH FOR INDEPENDENT JURISDICTION IN 
 
 SPIRITUAL MATTERS. 
 
 FIRST PERIOD. 15601592. 
 
 AFTER the Convention of the Estates of Scotland 
 declared, in 1560, that the Reformed faith was the religion 
 of the nation, Queen Mary persisted in refusing the Royal 
 assent for seven years, so that, till 1567, the Scottish 
 Church existed as the Church of the people without being the 
 Established Church of the land, and during this period she 
 governed herself, and administered for herself under the 
 acquiescence of the State. 
 
 This rise of the Church has been decisive regarding her 
 relation to the State, for the State being afterwards 
 induced to establish the Church, found her already formed 
 and organized, and thus we may account for the independ- 
 ence and ecclesiastical power which the Church has pos- 
 sessed from the commencement of her legalized existence, 
 and of which the destruction by the one party and the 
 defence by the other have formed the main feature of her 
 history. 
 
 Let us now follow the order of time and history of the 
 legal documents on which the rights of the Church are 
 
 founded. 
 
 Acts of 1567, c. 2, 3, 6, 7. 
 
 The Acts of this year 
 ( c - 2 -) 1. Legally abolish the jurisdiction of the Pope. 
 
 
SCOTTISH CHURCH QUESTION EXAMINED. 149 
 
 2. Ratify the confession of the Church. (C. 3.) 
 
 3. Declare the clergy and people who confess the (C. 6.) 
 Reformed belief alone constituting the true Church of 
 Christ in the kingdom. 
 
 4. Declare "That it is statute and ordained by our Act 1567, c. 7. 
 Sovereign Lord, with advice of his dearest Regent, and 23.) 
 Three Estates of this present Parliament, the examination ad " 
 
 and admission of ministers to be only in the power of the Kirk them that shall 
 
 T < 11 ke P resente d 
 
 now openly and publicly professed in this realm ; the pre- to benefices 
 sentation of laic patronages always reserved to the just and 
 ancient patrons." And " if the Superintendent (who then 
 had provisorily the functions of the present Presbyteries) 
 refuses to receive and admit the person presented by the 
 patron, as said is, it shall be lawful for the patron to 
 appeal to the superintendent and ministers of that pro- 
 vince where the benefice lies (that is the provincial Synod, 
 " the Synod of the bounds"), and desire the person pre- 
 sented to be admitted, which if they refuse, to appeal to 
 the General Assembly of the whole realm, by whom the 
 cause being decided shall take end as they dccern and 
 declare" 
 
 Remarks on this Document. 
 
 I. The Church of Scotland then recognised by the 
 State, and which was in her principal features entirely the 
 same as that of the present day, was thoroughly Presby- 
 terian. The office of the superintendent, which afterwards 
 devolved on the organized Presbyteries, had none of the 
 autocratic powers of a bishop. The superintendents with 
 their temporary powers were commissioners of the General 
 Assembly, to which they had yearly to render account, and 
 which gave and took away their powers, as it thought 
 proper. The Assembly itself consisted of Presbyters, or 
 elders, that is to say, teaching elders, or ministers and 
 
150 SCOTTISH CHURCH 
 
 ruling elders, and it is undeniable that the Scottish Church 
 then possessed and exercised as much an independence in 
 spiritual matters as it could manifest itself in the position 
 of a Church in her infancy. 
 
 II. In the document in question this principle is 
 decidedly established as far as it relates to the point 
 of the present controversy. The " examination and admis- 
 sion of ministers " was " only in the power of the Kirk" The 
 lay patron might certainly present, but the superintendent 
 might conscientiously " refuse to receive and admit" The 
 patron might appeal from him to the Synod, and from this 
 to the " General Assembly of the whole realm ; but with this 
 the cause takes end, as they decern and declare ; " and of an 
 appeal from the latter to a civil court, whatever name it 
 might bear, WE FIND NO TRACE WHATEVER. It is untrue 
 to history to maintain that the superintendent was restricted 
 in his right of Veto to those tests of unqualifiedness of the 
 presentee, which are supposed at present to be included in 
 the peculiar sense of this word, and therefore it is not 
 historically true that the conclusive decision of the General 
 Assembly only bore this restricted signification. And yet 
 it is not to be denied that the decree in the Auehter- 
 arder case depends on that false but strenuously sup- 
 ported supposition. At that period there were no 
 scholastic examinations of ecclesiastically educated proba- 
 tioners, but the Church courts had to take into considera- 
 tion the entire character and qualifications of the person 
 presented to them, and compare these with the entire com- 
 plication of circumstances among which they were about 
 to place him, and from this comparison they made their 
 decision. On this account we find all expressions relating to 
 the decision of Church courts, from the present document 
 down to the Church of Scotland Benefices Bill, conceived 
 in a wide and general form. Thus we find that the Church 
 
 
QUESTION EXAMINED. 151 
 
 courts are to judge "the cause, " "the affair," "the whole 
 affair," &c., and it is in these wide and general views 
 that the Church has a right conclusively to determine 
 without appeal whether the presentee can be admitted or 
 not. 
 
 III. During the regencies all possible means were tried 
 to give the superintendents the power of bishops, and thus 
 to undermine Presbyterianism. But the Church introduced 
 in 1578 a complete and detailed view of the economy of 
 the Presbyterian Church into the Book of Policy, or, 
 Second Book of Discipline; and in this the office of a 
 bishop in the sense of prelacy is disavowed, and in 1580 it 
 was authoritatively abolished by the General Assembly, and 
 its functions given to the Presbyteries, which were rapidly 
 organizing over the whole country. 
 
 1580. 
 
 We now come to consider the Book of Policy, or Second 
 Book of Discipline. 
 
 The authority of this standard of the Church has been 
 already discussed in a general manner, and were it neces- 
 sary the objections against it might be examined in detail 
 and proved to be perfectly untenable. The first chapter of 
 this book is entitled, " Of the Kirk, and policy thereof, 
 and wherein it is different from the civil policy ; " and the 
 jurisdiction of the Church is shown to extend, not merely 
 over word and sacrament, but over its whole organization 
 and regulation as an institution, which is essentially 
 distinct from the State. We there read: "The policy of 
 the Kirk, flowing from this power (the power of Jesus 
 Christ) is an order or form of spiritual government which is 
 exercised by THE MEMBERS APPOINTED THERETO BY THE 
 WORD OF GOD, and therefore is given IMMEDIATELY to the 
 
152 SCOTTISH CHURCH 
 
 OFFICE-BEARERS, by whom it is exercised to the weal of the 
 whole body." 
 
 "This power and policy ecclesiastical is different and 
 distinct in its own nature from that power and policy which 
 is called the civil power, and appertains to the civil govern- 
 ment of the commonwealth. 
 
 " This power ecclesiastical flows immediately from 
 God, and the Mediator, Jesus Christ, and is spiritual, 
 having no temporal head on earth, but Christ, the only 
 spiritual King and Governor of his Kirk." 
 
 " The magistrate commands external things for external 
 peace and quietness among his subjects. The minister 
 handles external things only for conscience cause. The 
 magistrate handles external things only, and actions done 
 before men. But the spiritual ruler judges both, inward 
 affections and external actions in respect of conscience, by 
 the Word of God. The civil magistrate craves and gets 
 obedience by the sword and other external means ; but 
 the ministry by the spiritual sword and spiritual means." 
 
 1582. 
 
 The Affair with Robert Montgomery, 
 (Cf. M'Crie's " Life of Melville," vol. i., p. 183, seq.) 
 
 A certain case which was debated before the General 
 Assembly in 1582, will distinctly show to the kind reader 
 the extent of what has been granted to the Scottish 
 Church in 1567; how this was in danger of being 
 re-assumed by the State, but how the Church had ulti- 
 mately the good fortune triumphantly to maintain her 
 rights. This case had itself had much influence on the 
 ecclesiastical law of Scotland, and its details throw much 
 light upon many recent proceedings. It is the case of 
 
 
QUESTION EXAMINED. 153 
 
 Robert Montgomery, in which the present contest about 
 the limits of jurisdiction had almost its prototype. 
 
 King James I. desired to bestow on his favourite, the 
 recently created Duke of Lennox, wealth suitable to his 
 rank. For this purpose he thought of making use of 
 the revenues of the archbishopric of Glasgow. But in 
 order that these revenues might be claimed, it was necessary 
 that an archbishop should exist. As the Duke himself 
 could not be an archbishop, a minister in Stirling, of the 
 name of Robert Montgomery, came forward to be appointed 
 to this place by the King, on condition of drawing only a 
 certain proportion of the yearly revenues of the arch- 
 bishopric, so that the remainder should belong to the Duke 
 as Titular Archbishop. The King sent a message to the 
 General Assembly, in 1581, requesting it to admit Robert 
 Montgomery as Archbishop of Glasgow. The title of arch- 
 bishop had indeed not been formally abolished by the 
 Church, but only that of bishop ; and the latter had been 
 so by the Church alone, whose independent power James 
 cordially hated. 
 
 The General Assembly of course found it impossible to 
 give effect to this very extraordinary request, and instructed 
 the Presbytery of Stirling to prevent Montgomery from 
 taking any steps in a matter which threatened to throw the 
 Church into serious embarrassment. But Montgomery, 
 setting at nought the obstacles thrown in his way by the 
 Presbytery, procured an injunction from the secular power, 
 requiring the Presbytery of Glasgow to admit him as 
 Archbishop. Quite similar was the modern proceeding of 
 the Court of Session towards the Presbytery of Auch- 
 terarder concerning Mr. Young; and as the latter in 
 modern times, so the former at that time, refused to 
 " receive and admit" The cause pended till the year 1582, 
 
154 SCOTTISH CHURCH 
 
 and the new Session of the General Assembly was 
 approaching. Montgomery feared the censure of this 
 body, and not without reason. In order to gain a move in 
 advance of it, he resolved on a proceeding quite similar to 
 that adopted by Mr. Clark in the Lethendy case, against 
 the Presbytery of Dunkeld.* He obtained from the Privy 
 
 * The Lethendy Case. Mr. Clark was appointed by the Crown to a 
 place of Crown patronage as assistant, of the still living incumbent cum 
 spe succedendi. On the moderating in the Call he was rejected under 
 the operation of the Veto Law. At first he contented himself with the 
 decision of the Church courts ; but as within a few months the 
 incumbent died, he resolved, only without co-operation of the patron, 
 on the same means as Mr. Young. The congregation could not remain 
 without a minister. The Auchterarder case pended from year to year. 
 The Church, therefore, proposed Mr. Kessen, whom the congregation 
 willingly received. Mr. Clark obtained an interdict against the 
 Presbytery from the Court of Session, which " prohibited it from 
 farther proceeding in any way to give effect to the presentation in 
 favour of the said Andrew Kessen," forbidding the latter to take 
 possession of any of the temporalities of the place. To the latter, of 
 course, the Court of Session had a perfect right, which was not the case 
 with regard to the former. The Commission of the General Assembly 
 declared that " admission to a pastoral charge" is entirely an 
 ecclesiastical act, and instructed the Presbytery to ordain Mr. Kessen 
 " upon the Call in his favour," not " on the presentation and Call 
 together," and this in order that no contest might arise about the 
 temporalities, to which the Church could of course make no claim if 
 the Auchterarder ease should be decided unfavourably. The Court of 
 Session granted a new interdict in the most comprehensive form, which 
 not only forbade Mr. Kessen to take possession of the temporalities 
 of the place, but also to undertake the charge itself. The Presbytery, 
 in pursuance of the instructions of the General Assembly, did not obey 
 the injunction as far as regards the spiritualities, on the ground of this 
 point being beyond the jurisdiction of the secular court, and accordingly 
 ordained Mr. Kessen. This proceeding of the Church was looked on 
 as open rebellion ; although closely examined nothing more has been 
 done either on the part of the secular court or of the General Assembly 
 than to proceed anew on the same principles which were conflicting in 
 
 
QUESTION EXAMINED. 155 
 
 Council an interdict against the General Assembly, for- 
 bidding it to proceed in any manner against him in the 
 affair of the bishopric. The General Assembly could as 
 little recognise this interdict as authorized and binding, as 
 the present Presbytery of Dunkeld could do so with regard 
 to the interdict of the Court of Session; and it is remark- 
 able that Dr. Cook praises the proceedings of the Church 
 at that time, in the debate on the Independence Resolution 
 (1838), in the following decided words : 
 
 " The Church rebelled against this ; and it would have 
 been unworthy of the name of a Church if it had not 
 done so." 
 
 Montgomery was threatened by the General Assembly 
 with deprivation and excommunication if he did not confess 
 his repentance of his conduct and the resolution to alter it. 
 He appeared before the General Assembly, confessed that 
 he had " luinously offended" and promised, on oath, to 
 take no farther step in the affair, and to retract what he 
 had already done. The General Assembly, knowing his 
 character, saw that they could not trust him, and instructed 
 the Presbytery of Edinburgh to excommunicate him if he 
 should break his word. At the same time it passed the 
 
 Resolution of Assembly, 1582. 
 
 " That it is conformable to the Word of God and most 
 godly acts of ancient councils, that no man pretend to 
 ecclesiastical function, office, or benefice, by any absolute 
 gift, collation, or admission of the civil magistrate or 
 patron, by letters of horning, or whatsoever other means, 
 
 the still undecided Auchtevarder case, only with this distinction, that in 
 the Lethendy case the whole Church, even to the extreme Moderates, 
 have been unanimous in their opposition to the presumption of the 
 Court of Session. 
 
156 SCOTTISH CHURCH 
 
 than is established by the Word of God and acts of the 
 General Assembly, and hitherto ordinarily used within the 
 Reformed Kirk of Scotland, under penalty of excom- 
 munication." 
 
 Even at the risk of interrupting too much the historical 
 tenor of this relation, the writer cannot deny himself two 
 remarks on this document, which could nowhere find so 
 good a place as the present. The first is, that this Act is 
 still in legal force, and if taken by the letter, would render 
 Mr. Young's proceedings against the Church punishable by 
 law. This was the Act alluded to in the preceding 
 section, where Mr. Young is said to have rendered himself 
 liable to the severest censure of the Church. The second 
 is, that the comparison between this Act and the Veto Act 
 is interesting and important ; namely, at the conclusion of 
 it we find stated, that this Act shall not be " prejudicial to 
 the laic patrons and their presentations, until the time the 
 laws be reformed according to the Word of God." From 
 this we may conclude that this Act, like the modern Veto 
 Act, was intended to work conjointly with the patronage 
 system, and was not an attempt to abolish the patronage of 
 lay persons, a measure which the Church would have no 
 right to pass without consent of the State, but that it 
 was calculated to secure the Church from being forced by 
 the secular power to act contrary to her principles. If the 
 Directory of 1649 shows on the one hand that the spirit of 
 the Veto Act was not unprecedented, the document in 
 question, on the other, shows the same concerning the 
 right of passing it. 
 
 The wretched Montgomery, influenced by the Duke of 
 Lennox, and impelled perhaps by his own ambition, again 
 renewed his agitation, and was excommunicated. The 
 
 
QUESTION EXAMINED. 157 
 
 Privy Council declared his excommunication null and void, 
 just as in modern times the Court of Session espoused the 
 cause of the suspended minister of Strathbogie.* 
 
 The General Assembly hastened its meeting, and before 
 it could be summoned before the Privy Council for defiance 
 and breach of the law of the land (as the Court of Session 
 recently summoned the Church courts before itself), it 
 drew up a remonstrance against these " encroachments on 
 the jurisdiction of the Church" (just as was done by the 
 General Assembly of 1842,) and named deputies to 
 deliver this remonstrance to the King in Council. In this 
 document the General Assembly expresses itself respect- 
 fully, but clearly and firmly, in the following terms : f 
 
 " That your Majesty, by desire of some counsellors, is 
 caused to take upon you a spiritual power and authority 
 which properly belongs unto Christ, as only King and 
 Head of the Kirk, the ministry and execution whereof is 
 only given unto such as bear office in the ecclesiastical 
 government in the same. So that in your Highness's 
 
 * The Presbytery of Strathbogie was not so unanimous as those of 
 Auchterarder and Dunkeld, but seven of its members decided against 
 five to side with the Court of Session against their spiritual superiors. 
 After long delay of the painful measure, the General Assembly could 
 at last not act otherwise than suspend the refractory ministers. Not- 
 withstanding this, the latter considered themselves, on the authority of 
 the secular power, as the real Presbytery of Strathbogie, and in this 
 capacity they intruded, in a truly disgusting transaction (the Banner 
 of Aberdeen, from the 21st of January, 1841), Mr. Edwards upon the 
 congregation of Marnoch. It must also be said of this case, that 
 nothing new has been done on either side which was not the natural 
 result of the principles in conflict, but that in the same the destructive 
 effect of these results to all ecclesiastical rights, order, and decorum, 
 was more strikingly exhibited. 
 
 f " The Booke of the Universall Kirk of Scotland." etc., ed. by 
 Alex. Peterkin, Esq. Edin., 1839, page 256. 
 
158 SCOTTISH CHURCH 
 
 person some men press to erect a new Popedom, as though 
 your Majesty could not be full king and head of this 
 commonwealth, unless as well the spiritual as the temporal 
 sword be put in your Highness's hands ; unless Christ be 
 bereft of his authority, and the two jurisdictions con- 
 founded which God has divided." 
 
 Andrew Melville was the person who presented this 
 document to the King in Council. When it had been read, 
 Arran, the brother of the Duke of Lennox, and a great 
 favourite of the King's, exclaimed with flashing eyes, 
 " Who dares subscribe these treasonable articles?" " We 
 dare," said Melville, calmly; and stepping forward to the 
 table, he took a pen from the hand of a clerk and signed 
 his name. The other deputies followed his example. The 
 King yielded. Montgomery found his proceedings vain; 
 and the independent jurisdiction of the Church, especially 
 as regards the collation and deprivation of ministers and 
 the exercise of Church discipline and censure, was thus 
 practically and virtually recognised. 
 
 It was certainly not from a conviction of the scriptural 
 authority of the Episcopal forms of Church Government, 
 or of its intrinsic excellency, that James and the Stuarts 
 in general adhered to it, but from political views. The 
 celebrated saying of James in Hampton Court, " no bishop 
 no king," is typical in this respect ; and all his methodi- 
 cally clever steps against Presbyterianism were so firmly 
 connected with his strivings for unlimited supremacy, that 
 he has really contributed to identify the struggle of the 
 Scotch for their Church with their contest for their political 
 rights and liberties. This character of primary bulwark 
 and pledge of national rights has since never been lost by 
 the Scottish Church. The Scottish Church is therefore, 
 to use a political expression, a Conservative Institution, 
 
 
QUESTION EXAMINED. 159 
 
 and whoever narrowly examines the recent affairs from this 
 point of view, will find much cause of surprise that this 
 great feature should have been overlooked. The Scottish 
 Church has not, like the English, arisen through the 
 influence of the monarch, or in co-operation with the 
 ecclesiastical dignitaries of the country ; but she has been 
 brought into existence by the religious energy of the people, 
 and adhering to the written Word of God without com- 
 promise and with pertinacious firmness, has she struggled 
 through two centuries in the rapidly altering positions of 
 conqueror and conquered. On this account the jealous 
 affection the Scotchman bears towards her and her 
 privileges is inextinguishable. The State, during that 
 period, has been placed in all possible relations to her, 
 from the bitterest enmity to complete recognition and 
 esteem. The Church, on the other hand, has been driven 
 a hundred times by necessity to consider as conscientiously 
 and clearly as possible, what belongs to Caesar and what to 
 God, in order to render to them their relative dues. Thus 
 the Scottish Church, in the opinion of the writer, has 
 arisen to fulfil an important mission in the Protestant 
 world, which will be the more generally recognised the 
 more the principles of the Scottish Church question are 
 understood. If the Reformation of the sixteenth century 
 has a definite principle by which the Reformed Church is 
 thoroughly distinguished from and contrasted with the pre- 
 viously existing Roman Catholic Church, this will not only 
 manifest itself in this or that particular doctrine, in this or 
 that element of worship, etc., but in the pervading spirit of 
 their whole systems, and consequently, also, in their 
 relation to the State. The problem is still to be solved of 
 finding the true position of the Reformed Church towards 
 the State. In Scotland the germs of sound principles are 
 
160 SCOTTISH CHU11CH 
 
 
 sown for the practical solution of this problem, and we are 
 perhaps warranted in drawing from the signs of the times 
 the conclusion that the hour is at length at hand when 
 history will take up this great question once more, and 
 settle this unfinished element of the Reformation. 
 
 The writer does not mean to say that other Protestant 
 branches of the Church of Christ might take the Scottish 
 Church in this respect as an absolute model. On the contrary, 
 the clearer she is understood, the clearer will be recog- 
 nised how entirely national she is, and consequently how 
 untransferable in her detailed form. But the more clear, 
 also, will the universal (Catholic) element in her appear; 
 and this it is which will extend its influence over the whole 
 Protestant world. 
 
 The plan of some Scotch Barons, known under the 
 name of the Raid of Ruthven, to snatch the young King 
 by force from the hands of notoriously mischievous favourites 
 and advisers, which had received the uncalled-for and 
 blameable approbation of part of the clergy, roused the 
 enemies of the Church anew against her, and gave the 
 King new weapons, by which he was enabled to get the 
 Parliament to pass, in 1584, the so-called 
 
 
 Black Acts. 
 
 Of these it has been said, by one of the leaders of the 
 Moderate part, that " they destroyed the Church, tliey left it 
 no liberty or independence" But in the writer's opinion, 
 the Moderates exhibit an indistinctness of vision in not 
 seeing that the position with regard to the Church which 
 they have supported the State in taking is of such a nature, 
 that, to say the least, all guarantee for the liberty and 
 independence of the Church has vanished. We have only 
 
 
QUESTION EXAMINED. 161 
 
 to alter the expressions of the Black Acts to suit the 
 altered circumstances of the present time, and this will be 
 very evident. 
 
 Act 1584, c. 2. 
 
 This Act ordains that the King and his successors, " by Act 
 
 J c. 2. (Vol. 
 
 themselves and their councils, are, and in time coming shall iii. p. 292.) 
 be, judges competent to all persons, his Highness's 
 subjects, of whatever estate, degree, function, or condition 
 that ever they be, spiritual or temporal, in all matters 
 wherein they or any of them shall be apprehended, sum- 
 moned, or charged to answer to such things as shall be 
 enquired of them by our Sovereign Lord and his council." 
 
 Remark. The Lords of Session have now taken the 
 position of such a " council" and as "judges competent" 
 for a spiritual court, deciding over " spiritual matters" 
 
 Act 1584, c. 4. 
 
 This Act is directed against the. Presbyterian Church Act 1584, 
 courts and their jurisdiction as they were organized for Hi. p . 283.) 
 twenty years, and " not yet allowed of and approved by 
 his Majesty and his three estates of Parliament;" and 
 deprives of force " all judgments and jurisdictions, 
 spiritual or temporal, which are not approved by his 
 Highness and his said three estates convened in Parlia- 
 ment;" and ordains them " to cease in time coming until 
 the order thereof be first seen and considered by his 
 Highness and his said three estates convened in Parliament, 
 and be allowed and ratified by them." 
 
 Remark. The view which has served as basis in the 
 recent decisions concerning the Scottish Church, that the 
 Church established by Law is a "creature" of the State, 
 and subject to the laws enacted by the State in the same 
 manner as any other " civil corporation," is that taken by 
 
 M 
 
162 SCOTTISH CHURCH 
 
 this Act. This view consistently leads to the conclusion 
 that all rights and powers of the Church courts flow 
 primarily from the State, and that therefore the supreme 
 law courts of the State are courts of review of the General 
 Assembly. 
 
 Act 1584, c. 20. 
 
 Act 1584, This Act directs that the bishops, and other such persons 
 iii p 303) as are appointed by the King as commissioners, " shall and 
 may direct and put order to all matters and causes eccle- 
 siastical within their dioceses, receive presentations, and 
 appoint ministers," altogether things which had been per- 
 formed by the Presbyteries. 
 
 
 Act 1584, c. 5, 
 
 Act 1584, Directs that all ministers who are convicted before the 
 iii 5 p ^293) R va l commissioners of certain transgressions were to be 
 " deprived as well from their functions in the ministry as 
 from their benefices" 
 
 Remark. If the power " to direct and put order to all 
 matters and causes ecclesiastical" rests ultimately with the 
 State, Acts like the above, passed in the present day, would 
 neither be impossible nor unjustifiable, though they might 
 be imprudent. Why should not the State even now, if it 
 saw expedient, withdraw from the Presbytery the power 
 given to it, and appoint certain commissioners to exercise 
 it; why should Royal commissioners or courts in our time 
 have to make a distinction between " the functions in 
 the ministry" and ; ' the benefice" (the spiritualities and 
 temporalities) ? In a word, the State has acted through its 
 courts of law in the late contest virtually in the same views 
 of the Church as those of King James. 
 
 The following may represent the position of the Church 
 
 
QUESTION EXAMINED. 163 
 
 at that time. She had, in 1578, laid down a complete 
 model of her Presbyterian economy in the " Book of 
 Policy." The principal features of this economy had been 
 already sketched in the " First Book of Discipline," and it 
 was at that time to a great extent in practice. The Church 
 had organised for herself her constitution and government: 
 and who else was there to give them to her? The State or 
 the ecclesiastical dignitaries ? Both were estranged from 
 her and hostile to her. The Church of Scotland was there- 
 fore placed by Providence in a position in which she was 
 obliged to exercise a right essentially inherent in the 
 Church of Christ, namely, that of framing her own constitu- 
 tion according to the Word of God and her spiritual nature, 
 and of governing herself under her divine head. For this 
 she had not only not received the sanction of the State, 
 but the Government and a fraction of the nobility were 
 decidedly hostile towards her. The Church adopted, in 
 1580, the " Book of Policy" as a standard, and all her 
 ministers signed it: and from 1581 to 1583 Presbyterian 
 Church courts were rapidly organizing over the whole of 
 Scotland. Now came the Black Acts and declared all these 
 proceedings null and void ; they established the Episcopal 
 constitution of the Church and the unconditional supremacy 
 of the Crown in spiritual as well as in temporal matters, and 
 declared the Church courts to be illegal and even treason- 
 able assemblies. The following alternative therefore arose: 
 Either the principles of the Black Acts were to be carried 
 into effect, in which case the Church of Scotland must 
 have ceased to exist, or the principles of the " Book of 
 Policy," and the Church founded on them, were to gain the 
 ascendancy, in which case the Black Acts must have been 
 repealed, and the constitution of the Presbyterian Church 
 legalized by the State. The decision of Providence 
 declared itself in favour of the latter. The conditions 
 
 M 2 
 
164 SCOTTISH CHUItCH 
 
 which the Church had to demand at this juncture, in order 
 to obtain the legalization of her constitution, were the 
 three following : 
 
 1 . To be freed from the government of bishops and 
 Royal commissioners. 
 
 2. The Presbyterian Church courts to be recognised 
 both in their liberty of meeting and in the legitimacy of 
 their ecclesiastical jurisdiction. 
 
 3. This ecclesiastical jurisdiction to be supported by the 
 recognition of the independence of the Church in spiritual 
 matters, that is to say, the power of the Church in its 
 legislative, as well as in its administrative exercise, (of 
 course, subject to the placet or the Veto of the State,) to 
 be expressly recognised as no branch of the secular power, 
 and the principle to be recognised, that the Sovereign is not 
 the head or governor of the Church. 
 
 All these claims were gained by the Scottish Church 
 through the 
 
 Act of 1592, c. 8, 
 
 Act 1592, Containing the ratification of the liberty of the kirl 
 Si. p. 54i,' General and Synodal Assemblies, &c. 
 
 seq., Act for 
 
 of the axtis ! General View of this Document. 
 
 contrair the . . 
 
 trew reli- This Act is justly called the charter of the Church 
 
 gioun.) o Scotland, and is to the present day in full force. 
 
 It was certainly repealed in 1662, but was re-enacted 
 
 in 1690. It contains in itself the acts of 1567, 1581,* 
 
 and the " Book of Policy," in the sense in which it 
 
 * The writer would here supply an omission which he has made 
 
 1567, c. 12. while considering the Act of 1567. He has to ohserve that another 
 
 (Vol. iii. p. Act of 1567) c 12 ( Arient the Jurisdiction of the Kirk"), after having 
 
 granted to the Church the jurisdiction over doctrine, sacraments, and 
 
 discipline, further declares, " that there be no other jurisdiction ecclesi- 
 
 
QUESTION EXAMINED. 165 
 
 has been explained, and on its own part it has been 
 embodied in the Revolution Settlement and the Act of 
 Security. This document perfectly legalizes, in the opinion 
 of the writer, the views which the General Assembly of 
 1842 submitted to the Government in its celebrated docu- 
 ment, entitled " Claim, Declaration, and Protest," &c. 
 
 Even the tone of the Act in question is characteristic of 
 the position in which the Church was placed. The Black 
 Acts " confer," certain powers on " commissioners," who 
 " were to be constituted by the King;" but the document 
 in question does not constitute the Presbyterian Church 
 courts, nor confer certain rights and powers on them, but it 
 recognises, ratifies, and approves them and their authority and 
 independent spiritual jurisdiction, as they existed already, 
 partly by virtue of expressed ratification, partly by virtue 
 of acquiesence of the State in what appeared as necessary 
 consequences of that ratification. 
 
 1 1. View of this Document with regard to the three Conditions 
 which the Church had to demand for the legalization of her 
 Constitution. 
 
 1. The Black Act concerning the restoration of the 
 Episcopal authority and the empowering of Royal commis- 
 sioners, is said in our document " to be expired in theself, 
 and to be null in time coming and of no avail, force, or 
 effect." 
 
 2. The legality and authority of the Church courts are 
 
 astical acknowledged within this realm other than that which is and 
 shall be within the same Kirk, or flowes therefrom, concerning the 
 premises;" and that the above Act of 1581, c. 1, entitled* "Ratification Act 1581, 
 of the Liberty of the true Kirk of God and Religion, with Confirmation ^ ^ 2 K).) 
 of the Laws and Acts made to that effect of before," re-enacts arid 
 confirms those two Acts of 1567, as on its own part it is ife-enacted and 
 continued in the Act of 1592. 
 
166 SCOTTISH CHURCH 
 
 recognised ; and, on the other hand, " all and whatsoever 
 Acts, laws, and statutes, made at any time before the day and 
 date hereof, against the liberty of the true Kirk, JURISDICTION, 
 and discipline thereof, AS THE SAME is USED AND EXERCISED 
 WITHIN THIS REALM," are repealed and annulled. 
 
 3. It is declared, concerning the supremacy of the King 
 and his council, that it " shall noways be prejudicial nor 
 derogate anything to the privilege that God has given to the 
 spiritual office-bearers of the Kirk, concerning heads of 
 religion, matters of heresy, excommunication, collation and 
 deprivation of ministers, or any such like essential, censures 
 specially grounded and having approval of the Word of 
 God." In elucidation of the latter point, the writer allows 
 himself to add the following three remarks : 
 
 First Remark. The Scottish Church maintains decidedly, 
 to use a technical figure, the separation of the temporal and 
 spiritual swords, or, in other words, the separation of the 
 power of the sword from the power of the keys. The 
 former, of these she considers as given to the civil 
 magistrate, the latter to the office-bearers of the Church, 
 both committed and separately entrusted to their several 
 holders by God. The State, under James, maintained that 
 the spiritual authority vested in the office-bearers of the 
 Church had sprung from the State itself as the sole sove- 
 reign and ultimate source of all power on earth. On the 
 other hand, the Scotchman maintains the divine origin of 
 the power of the Church as distinct from the power of the 
 State. The form of constitution and government of the 
 Church in its essential features is to him neither a matter 
 of expediency nor an object of human ordinance and will, 
 but like the revealed doctrine, (though minor in import- 
 ance,) a matter of divine appointment. Now this doctrinal 
 view of the origin and form of Church Government (incor- 
 porated in the " Book of Policy," afterwards more dogma- 
 
 
QUESTION EXAMINED. 167 
 
 tically detailed in the Confession) was ratified by the State 
 in the document of which we are treating, in terms to the 
 following effect : that " God has given to the spiritual office- 
 bearers of his Kirk" certain spiritual privileges, which are 
 not to be infringed by the State. And again, that when 
 the supremacy of the King and his councils (the State) is 
 spoken of nothing shall be understood prejudicial to the 
 divine privilege of the Church as she is represented by her 
 office-bearers. 
 
 Second Remark. This "privilege given by God to the 
 spiritual office-bearers of his Kirk" is then more minutely 
 determined. It concerns "heads of 'religion, matters of heresy, 
 excommunication, collation and deprivation of ministers" &c. 
 By collation is here meant the appointment to the pastoral 
 office or charge, as by deprivation, the deposal from this office, 
 not from the temporalities. Both these are acknowledged as 
 belonging to the Church, not as granted by the civil power, 
 but as a right given to her by God, that is to say, as being 
 inherent in her just like the control of her doctrine, the 
 adjudication on heresies, the exercise of spiritual discipline, 
 &c. The right of the Church over the collation and conse- 
 quently, also, over the non-collation of candidates for her 
 offices, in pursuance of her decision on their qualifiedness 
 or non-qualifiedness, is ranked in our statute in the same 
 class of rights as her right of decision on points of 
 doctrine ; and one of these rights stands or falls with the 
 other. It is hard to conceive that the Court of Session 
 should be able to set aside the statute on one of these 
 points and not equally be able to do so with regard to the 
 other. Suppose, for instance, that a minister were (as 
 happened a few years ago) to be deposed for not preaching 
 the doctrine of election in the severe sense of the Cal- 
 vinistical creed. According to the principles recently 
 established, he might very well appeal, like Mr. Young, 
 
168 SCOTTISH CHURCH 
 
 to the Court of Session; and the Court of Session would 
 in his case be just as well entitled to find that the Church 
 interpreted her Confession of Faith to the prejudice of the 
 civil rights of the minister, as it was in Mr. Young's case 
 to find that she interpreted her "Book of Policy" to the 
 injury of Mr. Young's civil rights. 
 
 Third Remark. It is of importance to keep in mind 
 that the provisions of the document in question were 
 framed in fresh recollection of Robert Montgomery's affair. 
 In that very affair an attempt was made to compel the 
 Church to grant the " collation of an ecclesiastical office" 
 which was just as much opposed to her fundamental laws 
 as the principle of intrusion. In that affair the censure of 
 the Church (the excommunication) was just as unwarrantably 
 over-ruled by the Privy Council as to-day the suspension of 
 the Strathbogie ministers by the Court of Session. 
 Hereby we may conclude that the State of that time was 
 perfectly aware of the extent of its concessions to the 
 Church in granting this statute ; and, on the other hand, 
 that the Church knows perfectly well how much she has 
 received by that statute, and how much has been recently 
 arbitrarily taken away from her. 
 
 ' 
 
 III. View of this Document as regards the Auchterarder 
 
 Case. 
 
 The statute in question re-enacts, as has been already 
 remarked, the Act of 1581, together " with the whole 
 particular Acts therein mentioned, which shall be as suffi- 
 cient as if the same were here expressed" 
 
 Now, among the Acts " therein mentioned" is the Act of 
 1567, which places " the examination and admission of 
 ministers" in the poicer of the Kirk, inasmuch as it provides, 
 that a patron, whose presentee shall have been rejected, 
 can appeal from the superintendent (afterwards the Pres- 
 
 
QUESTION EXAMINED. 169 
 
 bytery) to the Synod, and from this to the General 
 Assembly, " by whom the cause being decided, it shall take 
 end as they decree and declare" In what we gather therefore 
 from the Act of 1592 concerning the presentation on the part 
 of the patron, and the collation on the part of the Church, 
 the following two points are to be well recollected : 
 
 1. That the "collation and deprivation of ministers" are 
 recognised as belonging to the jurisdiction of the Church 
 by a similar right to that which she has of judging of 
 heresy, refusing the sacrament, or even of excommuni- 
 cation. 
 
 2. That it gives the Church (General Assembly) the 
 final decision as to whether the presentee be admitted or 
 
 rejected. 
 
 Under the supposition that this is recognised and 
 guaranteed, the statute of 1592 ordains, "all presentations 
 to benefices to be directed to the particular Presbyteries* in 
 all time coming, with full power to give collation thereupon, 
 and to put order to all matters and causes ecclesiastical within 
 their bounds, according to the discipline of the Kirk^ pro- 
 viding the foresaid Presbyteries be bound and adstricted to 
 receive and admit whatsoever qualified minister be pre- 
 sented by his Majesty or laic patrons." The latter 
 provision, if we judge by the whole tenor of the Act, 
 means nothing more than that patronage remains established, 
 and that qualified presentees must be received from the 
 hands of patrons, not chosen by the congregation or Pres- 
 bytery. But as to the qualifiedness of the presentee, the 
 technical explanation of the term newly brought into 
 vogue, is neither just nor warranted ; and at any rate, in 
 
 * Not to the bishops or Royal commissioners, as the Black Acts had 
 provided. 
 
 f Not according to certain powers granted by the State, like those 
 possessed by those Royal commissioners. 
 
170 SCOTTISH CHURCH 
 
 the case of a difference of opinion between the patron and 
 Presbytery on the subject, the Church (General Assembly) 
 has a final and uncontrolled veto. 
 
 That this view of the statute is no gratuitous interpre- 
 tation, but is the legitimate explanation of it, such as it 
 was understood by the Church and State of the time, will 
 appear clearly in the observations on the following period 
 of the history of Scottish Church legislation in this treatise, 
 where the State will be shown to have desired its repeal 
 precisely because it lore the above-explained sense. For 
 the present, however, the following circumstance will 
 render its meaning indisputable: It is not hard to con- 
 ceive, that after granting to the Church the right of judging 
 of the qualifications of a presentee, and of exercising a 
 conclusive veto on his collation, cases would arise in which 
 the Church (General Assembly) would confirm the rejec- 
 tion of a presentee by a Presbytery on grounds which did 
 not appear to the patron or the civil court to be included 
 in the sense of the Act. To "Jind and declare" this, 
 according to its conscientious understanding of the statute, 
 and with regard to the civil questions in the affair, 
 obviously lay in the province of the civil court. Now, in 
 the event of such cases happening, a legal remedy had, of 
 course, to be framed, to indemnify the patron for the pro 
 hac vice suspension of his rights. A remedy of this 
 description was given in the 
 
 ,. 
 
 Act 1592, Act 0/1592, c. 9, 
 
 c.9.(Vol.iii. 
 
 p. 542.) which ordains, that in the case of the rejection o 
 
 presentee, " qualified" in the opinion of the civil court, 
 the patron have the right " to retain the whole fruits of the 
 benefice in his hands," a proceeding very different from 
 that of forcing the Church i( to receive and admit" the 
 presentee. 
 
 
QUESTION EXAMINED. 171 
 
 Now, it is true, 'this statutory remedy must naturally 
 have become inactive on the extinction of patronage itself. 
 After the revival of patronage, it was modified by new 
 regulations, in such a manner that the Church, in cases of 
 disputed settlement, could lay no claim to the fruits of the 
 benefice, neither could the patron retain them in his hands, 
 but they were devoted to the " Widow Fund," or to certain 
 other purposes connected with religion or education. It 
 must be admitted, that the laws of patronage exhibit a 
 defect in this point; this was the point, by the redress of 
 which the Legislature, at the right time, was able and 
 called upon to avert, and to avert most easily, the whole 
 disastrous controversy. But never can it be admitted, that 
 the injury sustained by a patron by the defect of the law, 
 warrants the law courts of the State in injuring the 
 Church, by violation of her rights and laws, in order to 
 indemnify the patron. 
 
 The general conclusion, 
 
 then, which we arrive at in the end of the first period of 
 the Scottish Church Legislation, is that, 
 
 1. The power of conclusively deciding on the qualified- 
 ness or unqualifiedness of a presentee for a pastoral charge, 
 and of admitting him or rejecting him accordingly, is an 
 inherent right of the Church, or, in the Scotch expression, 
 belongs to that "privilege which God has given to the office- 
 bearers of the Church" 
 
 2. The Church is, in her Presbyteries, " bound and 
 adstricted" to receive the presentations from the existing 
 patrons, in as far as the candidate presented is " qualified" 
 
 3. This obligation of the Church courts is not uncon- 
 ditional, but takes place " according to the discipline of the 
 Church:' 
 
 4. The Church has to know and to declare what belongs 
 
172 
 
 SCOTTISH CHURCH 
 
 to the " discipline of the Church" according to the Word of 
 God, and the State has the full right of either establishing 
 it by statute or not to do so. 
 
 5. The State HAS recognised and established, that the 
 Church has just as independent and conclusive a right of 
 judging concerning the "collation or deprivation of her 
 ministers" as concerning " heads of religion, matters of 
 heresy" &c. 
 
 6. If the Church appear to the State, in any particular 
 case, to decide wrongly, and to declare a presentee to be 
 "unqualified" from grounds \vhich the secular court does 
 not recognise as contained in the statute, the secular court 
 has not the power of erecting itself into a court of review 
 over the General Assembly, and of intruding its interpre- 
 tation of the statutes on the Church, neither has the 
 Church the power to intrude her interpretation and deci- 
 sion on the secular court and the State; but both decisions 
 have their effect in different directions, and, therefore, 
 without collision : the Church does not receive the tempo- 
 ralities from the State, and the State does not injure the 
 spiritualities of the Church. The State has thus a natural 
 and efficient guarantee against any obstinacy or arbitrari- 
 ness on the part of the Church, and the Church has a 
 natural and efficient motive to act in conformity with the 
 known views and regulations of the State agreed upon. 
 Therefore, in the ordinary course of affairs, and under 
 mutual goodwill, the general conditions of peace and har- 
 mony are fully provided (notwithstanding any differences 
 in individual cases), and a disruption like that which has 
 recently happened can only take place when this constitu- 
 tional relation between the two powers, Church and State, 
 is overlooked, as has been done lately by the civil courts. 
 
 Such were the position of the Scottish Church and the 
 
QUESTION EXAMINED. 173 
 
 legislative enactments concerning her jurisdiction at the 
 end of the sixteenth century. It remains now to be seen, 
 whether or not the Church has, at a later period, forfeited 
 this position and her statutory privileges and rights. 
 
 SECOND PERIOD. 
 From 1592 till 1640. 
 
 The concessions contained in the Act of 1592, made to 
 the Church by a Government inimical to her, were, in 
 general, wrung from this Government, and not granted 
 with good will. The next ten years, therefore, exhibit 
 nothing but a series of attacks, on the part of the State, to 
 resume these concessions by force or cunning. The moral 
 disgust with which we must contemplate all these attempts 
 is, however, repaid by one consideration. It is this : When 
 the Erastian lawyers and clergy of the present day seek to 
 weaken the concessions of 1 592, the unmistakeable public 
 declarations and deeds of the next ten years effectually 
 controvert them. All disputes concerning the sense in 
 which the Act of 1592 was understood by both parties, 
 concerning how much was conceded in it by the State to 
 the Church, and how much was wrung through it by the 
 Church from the State, are set at rest by an examination 
 of the means by which the State afterwards attempted to 
 resume its concessions. 
 
 The King, having found force and intimidation powerless 
 means to mould the Church to his liking, thought to over- 
 come her by the seducing allurements of covetousness and 
 ambition. He held forth the advantages which would 
 accrue to the Church from having her interests defended by 
 bishops, who joined to an imposing outward appearance the 
 privilege of a seat and vote in Parliament. Who that under- 
 stands human nature can be surprised that the King found 
 
174 SCOTTISH CHURCH 
 
 individuals in the Scottish Church who looked on this with 
 approbation? But the Church, as a whole, may justly 
 boast, that she acted with the same decisiveness against the 
 intermeddling of civil power with spiritual things with 
 which she has ever opposed the Church's intermeddling 
 with earthly pomp and civil and political affairs. From 
 this time till the Revolution we recognise, as a prominent 
 feature of the Scottish Church history, that the revival of 
 prelacy has been always accompanied by the revival of the 
 supremacy of the State over the Church, which supremacy, 
 at last, is maintained to be an inherent right of the Crown, 
 whilst, on the other hand, the restoration of Presbyterianism 
 has always been followed by the destruction of that supre- 
 macy. Thus, in appearance, the preference of one form of 
 Church government over another, the Episcopal over the 
 Presbyterian, or vice versa, was the point at stake, while, 
 in reality, the point of contest was, to use a Scotch 
 expression, which doctrine should prevail in the land, 
 that of the dependency of the Church of Christ on the 
 supremacy of the head of the State, or that of the 
 Headship of Christ over his own spiritual kingdom the 
 Church. 
 
 Act 1606, Act 1606, c. 2. 
 
 c.2. (Vol.lv., 
 
 pp. 281 The King obtains from Parliament the re-establish- 
 ment of bishops in their civil estate, and he is again 
 recognised in this Act " to be sovereign monarch, absolute 
 prince, judge and governor over all persons, estates, and 
 causes, both spiritual and temporal, within the said realm." 
 
 Act 1612, Act 1612, c. 1. 
 
 p. 469, seq.) This Act ratifies the Resolutions of the corrupted 
 General Assembly of 1610, by which every minister at his 
 induction is obliged to take an oath of allegiance in a form, 
 
 
QUESTION EXAMINED. 175 
 
 in which the King is styled " the only lawful supreme 
 governor of this realm, as well in matters spiritual and 
 ecclesiastical as in things temporal." 
 
 There is a point in this Act which is of great interest 
 as regards the present struggle, and which merits to be 
 brought particularly into notice. It is ordained, that the 
 presentations of the patrons shall be made to the Bishop, 
 and, in case of his rejecting the candidate, an appeal shall 
 be made to the Archbishop. In case the latter reject the 
 candidate, a new check is introduced, in the place of that 
 of 159-2, which allows the patron to retain the whole 
 fruits of the benefice in his hands. This check is as 
 follows : 
 
 " That the Lords of the Privy Council, upon the parties' 
 complaint of the refuse, and no sufficient reason being given 
 of the same, shall direct letters of horning, charging the 
 ordinary (the bishop) to do his duty in the receiving and 
 admitting of such a person as the said patron has pre- 
 sented." 
 
 We cannot read this regulation without being struck 
 with its containing the precise line of proceeding which has 
 been adopted in recent times against the Church, requiring 
 only the substitution of "Court of Session" for "Privy 
 Council,'' and of " Presbytery" for " Ordinary." This is a 
 point which must have painfully surprised the Scottish 
 Church, and which, in the writer's opinion, is an ample 
 excuse for just indignation. And let it be remarked, that 
 that clause of an Act, notoriously hostile to the Presby- 
 terian Church, does not go so far as the opponents of the 
 Church have gone in the recent affair. For that clause 
 related only to " ministers once received and admitted to the 
 function of the ministry, being then still undeprived ;" there- 
 fore it related to persons WHO WERE ALREADY ORDAINED, 
 
176 SCOTTISH CHURCH 
 
 and concerning whose admission to the ministerial office 
 in general the Church had already decided. 
 
 And now that this Act, which permitted the patron to 
 attain his object by means of letters of horning, and which 
 never related to any persons but such as were already 
 ordained, is altogether repealed ; now that the Presbyterian 
 constitution of the Church is recognised once for ever in 
 the Revolution settlement, and with this constitution the 
 abolition of the supremacy of the State in ecclesiastical 
 affairs is established ; now the Court of Session assumes 
 the old authority of the Privy Council, and exercises it 
 against Presbyteries and General Assemblies, and even 
 in respect of persons who have never been ordained, and 
 this momentous oversight of the difference between an 
 unordained probationer and an ordained minister has been 
 supported even by the House of Lords ! 
 
 The Scottish Church, in the writer's opinion, has not 
 only been justly conscious of her rights in the recent 
 struggle, but she can justly maintain that these rights have 
 been unquestioned during the last century and a-half, and 
 that even the Act of Queen Anne, faithless and mischievous 
 as the passing of it was, has not been a mortal blow to 
 these rights. But, truly, she is not to be blamed for not 
 having been able to endure the recent fundamental infringe- 
 ments of her constitutional sphere of jurisdiction. She is 
 not to be blamed for not having been able to bring herself 
 to grant that to the State in the year 1839, which King 
 James himself did not dare to ask her to grant to the 
 bishops, the creatures of his power ! She is not to be 
 blamed for considering the levity and decisiveness with 
 which her claims to her rights have been termed hierar- 
 chical, presumptuous, monstrous, rebellious, anything but 
 soundness and matureness of judgment ! 
 
 
QUESTION EXAMINED. 177 
 
 King James, it must be admitted, had in all his pro- 
 ceedings an eye to decorum and appearance of propriety. 
 He always strove to acquire the consent (at any rate appa- 
 rent) of the Church to his ecclesiastical measures. About 
 the means of acquiring this he was, indeed, little scrupu- 
 lous; and if corruption can be excused on the ground that 
 men presented themselves who were open to corruption, 
 we must admit that such men existed in that time in the 
 Scottish Church, as in all other times ; but his unfortunate 
 son and successor, acting under the counsel of Laud, did 
 away with all such restraint, and laid claim to regulate 
 ecclesiastical affairs simply by virtue of his Royal authority, 
 wisdom, and pleasure. In judging of our subject, love of 
 plain truth demands that we look at the thing itself, and 
 not at changing names given to it under changed circum- 
 stances. That which was at that time called " Royal 
 authority, wisdom, and pleasure," and as such claimed the 
 sovereign regulation of Church affairs, has now the name of 
 " law of the land," proceeding in .unconditional force from 
 the Legislature and authoritatively interpreted by the 
 " courts of law." But the Church of Christ justly main- 
 tains that she has received her essential laws and ordi- 
 nances from a higher quarter than any Legislature or State 
 whatever. An impartial consideration of those times, so 
 stormy for the Scottish Church, teaches that this claim of 
 supremacy over the Church by the State was a source of much 
 more vexation to conscientious and powerful men in the 
 Scottish Church than the Episcopal origin and Roman- 
 izing character of the Canon and Service Book, which 
 was then to be introduced into Scotland. After all, Charles 
 the First cannot be accused of having undervalued his 
 adversary, the Kirk. He had made many concessions 
 which he intimated to the celebrated General Assembly of 
 1638, by his Lord High Commissioner, the Marquis of 
 
 N 
 
178 
 
 SCOTTISH CHURCH 
 
 Hamilton, to be the ultimatum on the King's part. But 
 these concessions all rested on the supposition of the 
 King's supremacy over the Church, and his supreme juris- 
 diction in spiritual affairs, founded on this supremacy and 
 exercised by means of organs responsible to the State, 
 whatever name these organs may bear. It was on this 
 account that Alexander Henderson, the Moderator, in the 
 name of the Assembly, refused to accept the offers of the 
 Royal ultimatum. Whoever reads the transactions of this 
 General Assembly with attention cannot help remarking 
 the wisdom, composedness, and integrity, with which the 
 Church first ascertained the full extent of her statutory 
 rights, and the clear-sightedness and decision with which 
 she afterwards deliberated in all loyalty upon all Erastian 
 and Prelatic infringements and innovations which were 
 made during the previous forty years. 
 
 It is well known that the Lord High Commissioner left 
 the Assembly after having declared in the King's name that 
 it was dissolved. This was a great and decisive moment 
 for the Scottish Church. Alexander Henderson appears 
 like her guardian angel. The Assembly, in the name of its 
 invisible King and Lord, declares itself constituted as 
 representative of the Scottish Church and competent for all 
 spiritual things, even without the presence of the State ; 
 this being, of course, under the provision that the control 
 of all civil matters connected with its resolutions should 
 belong unconditionally to the State. In this position it 
 proceeded with order and dignity to business. 
 
 At the close of its session the General Assembly ad- 
 dressed a letter to the King, which is exceedingly instructive 
 with regard to the position which the Church was obliged 
 to assume against the unjust machinations through which 
 she had been almost overthrown. This position she was 
 justified in assuming under the Acts of 1567, 1581, and 
 
 
QUESTION EXAMINED. 179 
 
 1592. The question then was, as it was in the month of 
 May (1843,) whether the Scottish Church of the Reform- 
 ation with regard to the most important point of spiritual 
 jurisdiction should stand or fall. It was then, as now, in 
 the power of the State, either to respect the established 
 rights of the Established Church of the land, or to have 
 another establishment which should be more conformable 
 to the views of the statesmen. The difference in position 
 between the Kirk of those times and of to-day is only this, 
 that the latter has been called on to testify to the purity of 
 her convictions and of her moral resistance by the greatness 
 of her sacrifices. 
 
 Alexander Henderson makes the following interesting 
 conclusion to his eloquent reply to the Lord High Com- 
 missioner. After having dilated on the difference between 
 civil and spiritual authority, on the separation of person in 
 those exercising these authorities and on the sources, 
 means, forms, and limits of jurisdiction of both, he con- 
 tinues: " So, whatsoever is ours, we shall render it to his 
 Majesty, even our lives, lands, liberties, and all; but fur 
 it that is God's and the liberties of His house, we do 
 think, neither will his Majesty's piety suffer him to crave, 
 neither may we grant them, even though he should 
 crave it." 
 
 The General Assembly abolished all the foreign and 
 dangerous elements which had been introduced into the 
 Church by force or stratagem since 159'2, and the Church 
 again appeared in the pure Presbyterian form of 1592. 
 
 The question now was, whether or not this should be 
 recognised as " the Church of Scotland established by law." 
 Providence decreed that she should not be thrown 
 yet from her position of Establishment, for the Reso- 
 lutions of the General Assembly of 1638 received the 
 
 N 2 
 
180 SCOTTISH CHURCH 
 
 Act 1640, sanction of the Legislature in 1640, with repeal of all 
 (Vol. v. p. s t afcu t es to the contrary. 
 
 291 &292.) 
 
 Hitherto, therefore, nothing can be brought forward in 
 the statutes and standards of the Kirk, on which the recent 
 attacks of the State against her independence of spiritual 
 jurisdiction can be founded. The only question which now 
 remains to be examined is, whether or not the Scottish 
 Church has lost this position in the Revolution settlement. 
 If it be found that the Act of Security has indeed guaran- 
 teed the same Scottish Church which was first recognised 
 in 1567, was again recognised in 1592, and again in 1640, 
 it will be clearly proved that in the recent struggle the 
 Church has been right and the State in the wrong. 
 
 The view which the State took of the Church at that 
 time is clearly and strikingly exhibited in the Act of 
 Parliament of 1649, which has been considered in the 
 third section of this work, and to which the writer requests 
 his kind reader to recur. 
 
 THIRD PERIOD. 
 
 From 1640 till 1690. 
 
 The transactions of the Westminster Assembly in 
 respect to ecclesiastical jurisdiction, are of the greatest 
 importance in order to understand the interpretations of 
 the Scottish Church as to Church Policy. It is well 
 known that the Presbyterians were opposed in this 
 Assembly, partly by their so-called " Dissenting brethren," 
 the Congregationalists ; partly by those properly termed 
 Erastians. By the former, chiefly in respect to the form 
 of Church government, and to the relation between the 
 Church of Christ as a whole, and the individual congrega- 
 tion ; by the latter, in respect to the same question which 
 
QUESTION EXAMINED. 181 
 
 has arisen in our times, namely, the relative extent of juris- 
 diction of the ecclesiastical and civil power ; by both parties 
 in matters of Church discipline. The Presbyterian doc- 
 trine proved decidedly victorious in the Assembly ; but the 
 minority was comforted for their defeat in the consciousness 
 that one party possessed a power in Parliament, the 
 other in Cromwell's head, sword, and army, of which the 
 display would certainly be much more cogent than the 
 arguments of a debate. And indeed, the Parliament of 
 England was not at all inclined to content itself with the 
 mere placet, the right of inspection and protection of the 
 Church then arising, and refused to ratify those Resolutions 
 of the Westminster Assembly which treat of Church 
 government and Church discipline ; whilst, on the contrary, 
 the Church and Parliament of Scotland recognised and 
 adopted the whole laborious work of the Assembly with 
 full approbation. 
 
 Thus in 1647 the Westminster Confession became a 
 standard of the Scottish Church : and the writer requests 
 once more to refer his kind reader to the most important 
 Act of Parliament of 1649. 
 
 The Westminster Confession was expressly ratified by 
 the Treaty of Union, and appended to this Treaty. 
 Should this document be found to lend its support to the 
 Free Church, the latter cannot be condemned for having 
 given, in 1842, to her numerous pressing and imploring 
 addresses to the State, the title of a " Claim of right, 
 declaration, and protest," etc. 
 
 It will be convenient to examine the Westminster Con- 
 fession in connexion with the document by which it was 
 ratified by the State at the Union, so that we may have 
 together at the end of our research, the entire ground of 
 right on which the Scottish Church has been based since 
 
182 SCOTTISH CHURCH 
 
 the Reformation, and on which she will rest all her future 
 claims under the Union with England. 
 
 The abnormous episode under Cromwell, having left 
 nothing remarkable behind it with regard to the subject of 
 our inquiry, is to be passed over. After the Restoration 
 the old struggle began again ; and it may certainly be as 
 well said of the Stuarts as of the dynasty to whom the 
 saying was originally applied, that they neither forgot 
 anything nor learned anything, even to the consummation 
 of their well-deserved fate. 
 
 King Charles II. took oath at his coronation in Scotland, 
 to honour and protect the Established Church of the land ; 
 he had signed the Solemn League and Covenant at his 
 restoration, and soon afterwards promised, in a letter to 
 the collective Presbyteries, " that he would protect and 
 preserve the government of the Church of Scotland as 
 settled by law." 
 
 Nevertheless incessant attempts were made in his reign, 
 under a succession of corrupt High Commissioners, and 
 through the obsequiousness of Parliament, to establish 
 the Royal supremacy in ecclesiastical affairs, to overthrow 
 Presbyterianism, and to introduce the Episcopal constitution 
 of the Church ; and this was attended by such cruelty, 
 violence, and cunning, that all the deeds with which the 
 Covenanters are charged, appear, if not justifiable o 
 excusable, at least not much surprising. 
 
 Dr. Cook, alluding to this in his " History of the 
 Scottish Church," says : " In the face then of all, which a 
 man of honour should have revered, he had restored 
 prelacy and even rendered it more obnoxious than it had 
 formerly been. It was thus associated with a breach of 
 integrity in the Sovereign which would have degraded the 
 
 1 . 
 
 
QUESTION EXAMINED. 18-3 
 
 meanest of his people ; and it appeared polluted by the 
 contamination of an unprincipled monarch. This, how- 
 ever, might have proved, as it ought to have done, only 
 momentary, but its effect was increased from the polity not 
 having been sanctioned by the authority of the Church ; it 
 was, in fact, ushered in by a mere exercise of the Royal 
 prerogative, and it hence carried with it the melancholy 
 and heart-rending reflection to men glowing with the love 
 of freedom, that the struggles for their civil rights had termi- 
 nated in oppression." 
 
 In the year 1661, the intemperate Earl of Middleton 
 was Lord High Commissioner, and imagined best to please 
 his Royal master by pursuing the shortest course with the 
 Church of Scotland. He therefore pressed through the 
 so-called 
 
 Act Rescissory, 1661, 
 
 which annulled all statutory enactments since 1640, and c> 12 e, 127. 
 thus swept away with one stroke all that was legally p^-S? ) 
 
 conceded to the Church under Charles I. (Act re- 
 
 scinding and 
 annulling 
 
 4 + J* i rr*ci tne P re ~ 
 
 Act 0/H662, tended Par- 
 
 liaments in 
 
 For the restoration and re-establishment of the ancient the years 
 government of the Church by archbishops and bishops. * t 6 c 4 ?' 1641 ' 
 
 This Act begins with the declaration, " The ordering Ac g t 1662 
 and disposal of the external government and policy of the (Vol. vii., 
 Church does properly belong unto his Majesty, as an p> 
 inherent right of the Crown,* by virtue of his Royal pre- 
 rogative and supremacy in causes ecclesiastical" 
 
 The Act then re-establishes the bishops in their estates, 
 rights, and functions; revives and ratifies earlier statutes 
 
 * According to the altered circumstances of present times, it would 
 read, " as an inherent right of the supreme power of the State," whose 
 views are authoritatively interpreted by its supreme law courts. 
 
184 
 
 SCOTTISH CHURCH 
 
 in their favour, and renders of no effect those which are 
 opposed to them. But here it is of the greatest import- 
 ance to observe the expressions in which this is done, 
 especially with reference to the Act of 1592, to which we 
 shall always have to recur. It " casses and annuls all 
 Acts of Parliament by which the sole and only power and 
 jurisdiction within this Church does stand in the Church, 
 and in the general, provincial, and Presbyterial Assemblies 
 and Kirk Sessions ; and all Acts of Parliament or Council 
 which may be interpreted to have given any Church power, 
 jurisdiction, or government to the office-bearers of the 
 Church at their respective meetings, other than that which 
 acknowledges a dependence upon and subordination to the 
 sovereign power of the King as supreme, and which is to be 
 regulated and authorized by the archbishops and bishops, 
 who are to put order to all ecclesiastical matters and 
 causes, and to be accountable to his Majesty for their ad- 
 ministration ; and particularly abolishes the Act of 1592." 
 
 Remarks on this Document. 
 
 1. By the " Rescissory Act," all Acts of Parliament 
 since 1640 were annulled,, and with them the respective 
 obnoxious clauses of the Westminster Confession were 
 disratified. But however sweeping the " Rescissory Act" 
 might have been, it was equally unsatisfactory. Certain 
 inconvenient earlier laws still remained in force, namely, 
 the Act of 1592, with all those ratified in it, such as the 
 Acts of 1567, 1581, etc. These were therefore also 
 annulled in the above-mentioned document. 
 
 2. In justice to the State of those times, we must 
 observe, that it had no hesitation in seeing and acknow- 
 ledging that its proceedings against the Church could not 
 be vindicated by a certain interpretation, but were founded 
 on an uncompromising abolition of her documents; and 
 
 
 
 
QUESTION EXAMINED. 185 
 
 indeed, either this uncompromising abolition or a candid 
 recognition of them, appears to the writer the only solid 
 way of " removing doubts" which even now exist in 
 Scotland, and threaten new secessions, individual and col- 
 lective, in future times. The State of the present day has 
 committed an error in supposing that the interpretation 
 which the Free Church gives to the Statutes and Standards 
 of the Kirk is an innovation, and is monstrous and absurd. 
 In this error it has drawn public opinion with it, at least 
 that of . England. The State of those times understood 
 the matter more clearly. It did not deny that it was the 
 real meaning of the documents which legalized the claim 
 of the Church of Scotland ; that " the sole and only power 
 and jurisdiction within the Church " was to " stand in the 
 Church," and that the exercise of this power and juris- 
 diction was to stand " in the General, Provincial, and Pres- 
 byterial Assemblies and Kirk Sessions ; " and that this power 
 and jurisdiction was not to be exercised " in dependence 
 upon, and subordination to, the sovereign power of the King 
 as supreme," but by the office-bearers of the Church, in 
 dependence on, and subordination to, the sovereign Lord 
 and King Jesus Christ, according to the rules and ordi- 
 nances of the Word of God. Now, the State of those 
 times hated these powers in the Church, and made no 
 secret of purposing to alter, by the enforcement of its 
 views, the whole constitutional position of the Church to 
 the State, and the whole constitutional organism of the 
 former in itself. On this account it annuls, in our docu- 
 ment, not only all Acts of Parliament, which according to 
 its own acknowledgment establish the rights hitherto 
 enjoyed by the Church, but also, " all Acts of Par- 
 liament and Councilj which might be interpreted to have 
 given," etc. 
 
 The State of to-day, on the contrary, has the intention 
 
186 
 
 SCOTTISH CHURCH 
 
 " to put an extinguisher," as a Noble Lord expresses it, 
 on all such (supposed flagrant) presumption in the Church ; 
 but it takes the appearance of wishing to protect the 
 Church against hierarchical fanatics contained in her, 
 whilst in truth it has been disestablishing her, retaining an 
 establishment which, though it may contain, as the author 
 willingly admits, much that is good, is not the " Church of 
 Scotland" constitutionally guaranteed a century and a-half 
 since. 
 
 3. A corroboration is afforded to these remarks by the 
 circumstance, that in the above-mentioned document the 
 restored archbishops and bishops are declared, without any 
 more definite limitation, " to be accountable to his Majesty 
 for their administration" The function of the bishops is 
 defined similarly in general to what it is in the Black Acts 
 of 1 584, namely, " to put order to all ecclesiastical matters 
 and causes ;" but the additional provision, " to be accountable 
 for their administration to his Majesty" is here expressly 
 introduced, in opposition to the principles of Scottish 
 Presbyterianism. According to the privileges of the Kirk, 
 the Church of Christ in Scotland was accountable, in all 
 secular and civil things, to the civil magistrate; but in 
 spiritual matters, only to her heavenly Lord; no earthly 
 king nor council, no secular law-court, had any control 
 over her. In this additional provision it is clearly to be 
 seen, that although the State of those times had no 
 affection towards the Church, it by no means misunder 
 stood her. 
 
 It would be both unnecessary and tiresome to repeat 
 here the details of the struggle between Church and State, 
 which ended at the Revolution settlement. The recog- 
 nition of the " supremacy of the King over all persons and 
 in all causes" in the Act of 1661, unconditionally ex- 
 
 
 
QUESTION EXAMINED. 187 
 
 pressed, and repeated in the Act of 1669 with dogmatical 
 distinctness, and applied to ecclesiastical matters, was made 
 a TEST, according to which ministers were admitted to 
 office or deprived of it, and according to which proceedings 
 were determined in the persecution of the Covenanters. 
 It is well known that in England 2,000 Nonconforming 
 clergymen were deposed from their places in one day; in 
 Scotland, the proportionate larger number of about 400 
 were made the victims of their conscientiousness. 
 
 The Act of 1669 Act 1669> 
 
 Declares : " That his Majesty has the supreme authority (Vol. vii., 
 and supremacy over all persons and in all causes ecclesi- p< 554> ) 
 asticul within this kingdom ; and that by virtue thereof the 
 ordering and disposal of the external government of the 
 Church does properly belong to his Majesty and his 
 successors, as an inherent right to the Crown; and that his 
 Majesty and his successors may settle, enact, and emit such 
 constitutions, Acts, and orders . concerning the adminis- 
 tration of the external government of the Church, and the 
 persons employed in the same ; and concerning all ecclesi- 
 astical meetings and matters to be proposed and determined 
 therein, as they in their Royal wisdom shall think fit:" 
 which constitutions and Acts, etc., " are to be observed 
 and obeyed by all his Majesty's subjects." 
 
 The writer would here remark, that this Act of 1669 
 was the very first which was repealed in the Revolution 
 settlement ; and the reason of this was not, as is now 
 sometimes asserted, because it invested the King with a 
 power which was in future to rest solely with the Legis- 
 lature^ but because, as it is stated in the " Articles of 
 Grievances, No. 2," " it was inconsistent with the establishment 
 of Church government now desired" 
 
 The establishment of Church government then desired 
 
188 
 
 SCOTTISH 
 
 took place in a manner and to such an extent in the 
 Revolution settlement, that the Church was satisfied with 
 it, and it was ratified and solemnly guaranteed by the Act of 
 Security at the union of the two kingdoms. Let us now 
 examine that Act which, in the year 1690, after the 
 Revolution, settled the ecclesiastical affairs of Scotland. 
 
 Act of 1690, 
 
 Ratifying the Confession of Faith and settling Presbyterian 
 Church Government. 
 
 This Act, restoring the Presbyterian form of Church 
 government, does this, not in the Erastian terms of the 
 statutes of the Stuarts, which talk of " conferring" Church 
 powers on the Church courts, and of " constituting" bishops 
 and Royal Commissioners to put order to all ecclesiastical 
 things, but it " allows and declares" " that the Church 
 government be established in the hands of, and be exercised 
 by, those Presbyterian ministers who were outed since the 
 1st of January, 1661, &c., and such ministers and elders 
 only as they have admitted or received, or shall hereafter 
 admit or receive."* 
 
 Again, it does not found its concessions, like the statutes 
 of the Stuarts, on " Royal wisdom or pleasure" but, after 
 the following preamble, " Our sovereign Lord and Lady, 
 the King and Queen's Majesties, and the three Estates of 
 Parliament, considering it to be their bounden duty, after 
 the great deliverance, that God has lately wrought for this 
 Church and kingdom, in the first place to settle and secure 
 
 * There can be little doubt of whom these " ministers outed since 
 the 1st of January, 1661," are the spiritual fathers, whether of those 
 who at the recent disruption have remained in the Establishment, or of 
 those who have been outed on the 18th of May, 1843, and who, with 
 their people, constitute now the Free Church of Scotland. 
 
QUESTION EXAMINED. 189 
 
 therein the true Protestant religion according to the truth 
 of God's Word, as it has of a long time been professed 
 within this land,* as also the Government of Chris? s 
 Church within this nation, agreeable to the Word of God, 
 and most conducive to the advancement of true piety and 
 godliness, and the establishing of peace and tranquillity 
 within the realm," &c., it proceeds to ratify all the Acts 
 which have been passed in favour of the Church in earlier 
 times, to grant her several civil rights and privileges, 
 " to ratify and establish the Confession of Faith now read 
 in their presence and voted and approved by them as the 
 pullic and avowed confession of this Church^ containing 
 the sum and substance of the doctrine of the Reformed 
 Churches (which Confession of Faith is subjoined to this 
 present Act), as also they do establish, ratify, and confirm 
 the Presbyterian Church government and discipline, that 
 is to say, the government of the Church by Kirk Sessions, 
 Presbyteries, Provincial Synods, and General Assemblies, 
 ratified and established by the 114th Act of James VI., 
 Parl. 12, anno 1592, intituled, Ratification of the Liberty 
 
 * " A singular way certainly for the Legislature, if it regarded the 
 Church of Scotland as a ' Corporation,' to be subjected to the ordinary 
 civil courts, thus to speak of the signal deliverance which God has 
 wrought for this ' Church AND kingdom,' evidently treating ' this 
 Church ' as something distinct from, and co-ordinate with, ' this king- 
 dom ; ' nay, actually giving the precedence to the Church, and speaking 
 not of ' this kingdom and Church,' but of ' this Church and kingdom,' 
 a precedence yielded to the Church, not certainly on account of any 
 earthly pre-eminence which belongs to her, for that, as well as all 
 earthly power she utterly disclaims, but yielded on account of that 
 sacred character, function, and government, which the Legislature was 
 in the act of recognising to be inherent in her as a spiritual body, 
 distinct and separate from the State itself." (John Hamilton, " The 
 Present Position," etc., page 32.) 
 
 f Not " of this State." 
 
190 SCOTTISH CHURCH 
 
 of the true Kirk/ &c., and thereafter received by the general 
 consent of the nation to be the only government of Christ's 
 Church within this realm, reviving, renewing, and confirm- 
 ing the foresaid Act of Parliament in the whole heads 
 thereof, except that part of it relating to patronages^ which 
 is hereafter to be taken into consideration,* and rescinding, 
 annulling, and making void the Acts following," &c., 
 (namely, the Acts restoring prelacy and Erastian arrange- 
 ments), it proceeds then to confer on the Church the 
 regulation of several temporal matters connected with her 
 interests, which, as the Act directs, she is to order " accord- 
 ing to the custom and practice of Presbyterian govern- 
 ment throughout the whole kingdom and several parts 
 thereof," &c. 
 
 Remarks on this Act. 
 
 1. The writer does not see how this Act could be worded 
 so as more clearly to prove the justness and constitutionality 
 of the cause of the Free Church. To this document, 
 however, which contains in itself the Acts of 1567, 1581, 
 1592, &c., the public faith of the Treaty of Union is 
 pledged. Now, although the Act of Queen Anne has been 
 a crying violation of this faith, and an open infringement 
 of the Act of Security, it only altered a single, though 
 important point, namely, patronage, but it did not change 
 the constitutional relation of the Church to the State and 
 her independent jurisdiction in spiritual matters; and if 
 the principle of Non-intrusion, in the sense of the Free 
 Church, were a debateable point (although, the writer 
 
 * This passage does not restrict the Act of l, f )92, but, on the con- 
 trary, proposes to reserve for future consideration an extension of rights. 
 It is well known that the result of this " consideration of that part of 
 the Act relating to patronages," has been, that patronage was altogether 
 abolished. 
 
QUESTION EXAMINED. 191 
 
 thinks, that she is in the right on this point), nevertheless, 
 every impartial person, who has paid attention to the 
 statutes of the Church, will admit, that there can be no 
 doubt about the legality of the principle of her spiritual 
 independence. 
 
 2. Relatively, therefore, that is to say, in respect to the 
 before-mentioned documents, on which the treaty between 
 the Scottish Church and the State rests (for her estab- 
 lished connexion with the State was, indeed, a matter of 
 mutual agreement and faith), the State has done wrong 
 and the Church has suffered wrong. In the next place, it 
 is the civil courts that have committed an injustice by 
 exceeding their powers, but the Legislature has not given 
 to understand that the proceedings of the law courts were 
 not those of the State itself, on the contrary ; after much 
 that is irretrievable was lost by a passive line of proceeding, 
 the Church of Scotland Benefices Bill appeared. This is 
 so far from redressing, in the name of the Siate, the 
 unwarrantable infringements of the privileges of the Church 
 of Scotland, that it does not take any notice of the melan- 
 choly effect of these infringements, namely, the rise of the 
 Free Church ; and instead of calling back peace and tran- 
 quillity, and of restoring a Church which reigns in the 
 hearts of the people, and not merely in the dead letter of 
 the law, it leaves, more closely examined, all the essential 
 matters in dispute just in the same state in which they 
 were before. The Legislature can, of course, do no legal 
 wrong, since all that it does constitutes what is to be held 
 legally right. If the constitutional and legitimate privi- 
 leges of the Scottish Church appeared no longer compatible 
 with the rights of the State over one of its hitherto most 
 valued and most effective Church Establishments, it was 
 perfectly in the power of the Legislature to say to the 
 Church, " I withdraw your privileges, and propose you 
 
192 
 
 SCOTTISH CHURCH 
 
 new conditions, to which you must consent if you would 
 continue to enjoy the advantages of an Establishment," 
 nothing could be said against this on the score of mere 
 power, and it would have been well had the State declared 
 in words what were the principles of its deeds. But if the 
 Church considered herself as conscientiously unable to 
 accede to these propositions, and to surrender a spiritual 
 independence which she alone was possessed of in all 
 Protestant Christendom, a great moral wrong has been 
 done to her, a wrong continually increasing, by lasting 
 prejudice and convenient ignorance of the true state of the 
 question, in branding her as the breaker of the law and the 
 disturber of the peace. 
 
 Let us now conclude this treatise with a brief examina- 
 tion of the great Standard of the Kirk, 
 
 
 The Confession of Faith. 
 
 The writer will give at once the authoritative declarations 
 of this most important document, together with the able 
 observations made on it by one of the most intelligent and 
 moderate defenders of the Church of his fathers (John 
 Hamilton, Esq., Advocate. " The present Position of the 
 Church of Scotland," 3d ed., 1840, p, 29.) He says 
 
 " The Confession of Faith, as a matter of course, is 
 mainly occupied with points of doctrine and religious 
 belief; but the nature of the Church and of its govern- 
 ment, while they are set down in the succinct terms suited 
 to such a treatise, are expressed at the same time so 
 absolutely as to admit of no mistake.' 5 
 
 In chapter twenty-five it is stated, " There is no other 
 head of the Church but the Lord Jesus Christ"* 
 
 * Remark of the Author. In relation to this principle, it is sai< 
 " Nobody denies this : but this does not prevent that under Christ, as 
 Head of the Church, there may be an earthly head or governor of her 
 
 er 
 
 : 
 
 ier 
 
QUESTION EXAMINED. 193 
 
 The thirtieth chapter devotes its first and leading section 
 to the following most explicit announcement : 
 
 " The Lord Jesus, as King and Head of his Church, has 
 therein appointed a government in the hand of Church officers, 
 distinct from the civil magistrate" 
 
 The means by which the Church officers are to enforce 
 the authority of their government are entirely of a spiritual 
 nature, and are stated in these terms " The officers of the 
 Church are to proceed by admonition, suspension from the 
 Sacrament of the Lord's Supper for a season, and by excom- 
 munication from the Church," the last being the highest 
 penalty the Church can inflict; after that the parties are 
 freed absolutely from her government and control. 
 
 The thirty-first chapter states, that, "for the letter 
 government and further edification of the Church, there ought 
 to be such assemblies as are commonly called Synods or 
 Councils" 
 
 The Confession does not descend to any particulars 
 respecting the constitution of these assemblies, whether 
 supreme or subordinate, but it distinctly describes their 
 
 too, just as the principle that God is the father of all men does not 
 combat the care and government of an earthly father." But in this the 
 principle is not taken in the dogmatical meaning in which Presbyte- 
 rianism, or let us rather say Protestantism, understands it. The position 
 in the principle is to be deduced from the opposition which is implied 
 in it. The principle means that there can and shall be no earthly 
 head over the Church, whether Pope, or prince, or clergy, with 
 autocratic authority and powers in spiritual matters in contradistinction 
 to a passive laity, but that the Church shall govern herself, under Christ, 
 according to God's Word by means of a body of rulers, who are not 
 immediate viceregents and divinely-appointed representatives of Christ 
 on earth, but representatives of the Church of Christ on earth. Christ 
 only confers power on them through means of the Church as a whole, 
 and the Church, comprehending both the governing and governed, 
 stands over both. 
 
 O 
 
194 
 
 SCOTTISH CHURCH 
 
 \ 
 
 duties, both in regard to ecclesiastical and civil matters. In 
 respect of the former: "It belongeth to Synods and Councils, 
 MINISTERIALLY to determine controversies of faith and cases 
 of conscience ; TO SET DOWN RULES AND DIRECTIONS FOR 
 
 THE BETTER ORDERING OF THE public WOrS/lip of God and 
 
 GOVERNMENT OF HIS CHURCH ; to receive complaints IN 
 CASES OF MALADMINISTRATION, and authoritatively to 
 determine the same., which decrees and determinations, if con- 
 sonant to the Word of God, are to be received with reverence 
 and submission not only for their agreement with the word, 
 but also for the power whereby they are made, AS BEING 
 AN ORDINANCE OF GoD APPOINTED THEREUNTO IN HIS 
 WORD." 
 
 And with respect to civil affairs, the statement is : 
 " Synods and Councils are to handle and conclude NOTHING 
 BUT THAT WHICH is ECCLESIASTICAL, and are not to inter- 
 meddle with CIVIL affairs which concern the commonwealth, 
 unless by way of humble petition in cases extraordinary, or by 
 way of advice for satisfaction of conscience, if they be there- 
 unto required by a civil magistrate." 
 
 And, in regard to the "civil magistrate," it is stated, 
 chapter twenty-three, " 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 HAS ARMED THEM WITH THE POWER OF THE 
 SWORD for the defence and encouragement of them that are 
 good, and for the punishment of evil doers^ 
 
 And after stating that <f the civil magistrate MAY NOT 
 ASSUME to himself the administration of the word and sacra- 
 ments, Or THE POWER OF THE KEYS OF THE KINGDOM OF 
 
 HEAVEN," it proceeds in terms which will require a single 
 word of observation : " Yet he has authority, and it is his 
 duty to take order that unity and peace be preserved in the 
 Church, that the truth of God be kept pure and entire > that all 
 
 
QUESTION EXAMINED. 195 
 
 blasphemies and heresies le suppressed, all corruptions and 
 abuses in worship and discipline prevented or reformed, and 
 all the ordinances of God duly settled, administered, and 
 observed, for the better effecting whereof he has power to call 
 synods, to be present at them, and to provide that whatsoever 
 is transacted in them BE ACCORDING TO THE MIND OF 
 GOD." 
 
 Now, upon the duty and authority which are here 
 ascribed to the civil magistrate, I content myself with 
 making two remarks, viz. 
 
 First, that as this authority of the civil magistrate con- 
 sists in " taking order," or "providing" that certain sacred 
 matters be done and attended to, not by himself (for he is 
 immediately before expressly debarred from performing 
 them), but by the Church; and as, in so taking order or 
 providing, he is to proceed not according to any human law 
 or maxim whatsoever, but " according to the mind of God," 
 the duty here assigned to him is of a very peculiar and 
 qualified character. 
 
 Secondly, that whatever may be the nature of the duty so 
 assigned to the magistrate, it cannot by possibility derogate 
 anything from the power and duty of the Church to exercise 
 that government which by the Lord Jesus Christ himself, 
 the sole Head and King of the Church, has been committed 
 to its officers as distinguished from all civil magistrates; and 
 that the Church therefore can never be absolved from the 
 necessity of administering that government which con- 
 stitutes its own assigned and peculiar province upon its own 
 most solemn and undivided responsibility. 
 
 The writer of the foregoing treatise begs to offer, by way 
 of conclusion, a few words in respect to the Scottish Church 
 question, viewed in the light of the above quoted passages 
 of that celebrated standard. 
 
196 
 
 SCOTTISH CHURCH 
 
 According to Presbyterian principles and views, the 
 ministers of the Church are not merely preachers of the 
 word and administrators of the sacraments, but as members 
 of the different Church courts, all of them are taking part 
 also in the government of the Church. Now, the question is 
 simply this, Does the admission or rejection of individuals 
 who are about to take part in the government of the Church 
 form itself a part of Church government, or not? The 
 writer thinks nobody will deny it does. Well, then, it follows 
 necessarily that the Church, having the acknowledged 
 right " to set down rules and directions for the better ordering 
 of the government of Gods Church," had the right to pass 
 the Veto Act, since this act is nothing else than a rule and 
 direction for the Presbyteries for the better ordering of the 
 government of the Church in that very important point of 
 admission or non-admission to the ministry. 
 
 Furthermore, it is a part of the question, whether the 
 proceedings of the Presbytery of Auchterarder against Mr. 
 Young were " a case of mal-administration" or not? If not, 
 Mr. Young had no reason to complain ; but if it were, then 
 his complaint was to be authoritatively determined on by 
 the Synod, and finally by the General Assembly; and there 
 the affair should have stopped ; and the proceedings of the 
 Court of Session, which went to annul the lawful decisions 
 of the Church courts in the Auchterarder case, Strathbogie 
 case, &c., appear rather as cases of mal-administration in 
 its own province, which ought to have been corrected, and 
 not confirmed by the Court of Appeal. 
 
 The Scottish Church has therefore perfect right to com- 
 plain of great injustice on the part of the State, inasmuch 
 as the latter granted her no hearing, when she solemnly 
 represented in her claim of right, as early as May, 1842, 
 the following encroachments of the Court of Session on her 
 
 
 
QUESTION EXAMINED. 197 
 
 own jurisdiction, in violation of the Constitution of the 
 country : 
 
 " The Court of Session have invaded the jurisdiction of 
 the courts of this Church 
 
 "1. By interdicting Presbyteries of the Church from istLethendy 
 admitting to a pastoral charge, when about to be done 
 irrespective of the civil benefice attached thereto, or even 
 where there was no benefice, no right of patronage, no Stewarton 
 stipend, no manse or glebe, and no place of worship, or any 
 patrimonial right, connected therewith. 
 
 " 2. By issuing a decree requiring and ordaining a Marnoch 
 Church court to take on trial and admit to the office of the 
 holy ministry, in a particular charge, a probationer or 
 unordained candidate for the ministry, and to intrude him 
 also on the congregation contrary to the will of the people; 
 both in this and in the cases first mentioned, invading the 
 Church's exclusive jurisdiction in the admission of 
 ministers, the preaching of the Word, and administration of 
 sacraments, recognised by statute to have been 'given by 
 God' directly to the Church, and to be beyond the limits of 
 the secular jurisdiction. 
 
 " 3. By prohibiting the communicants of the Church from Daviotcase. 
 intimating their dissent from a Call proposed to be given to 
 a candidate for the ministry to become their pastor. 
 
 " 4. By granting interdict against the establishment of Stewarton 
 additional ministers to meet the wants of an increasing 
 population, as uninterruptedly practised from the Reforma- 
 'tion to this day ; against constituting a new Kirk Session 
 in a parish to exercise discipline; and against innovating 
 on its existing state, < as regards pastoral superintendence, 
 its Kirk Session, and jurisdiction and discipline thereto 
 belonging.' 
 
 " 5. By interdicting the preaching of the Gospel and Strathbogie 
 administration of ordinances, throughout a whole district, 
 
198 SCOTTISH CHURCH 
 
 by any minister of the Church, under authority of the 
 Church courts; thus assuming to themselves the regulation 
 of the 'preaching of the Word' and 'administration of the 
 sacraments,' and at the same time invading the privilege, 
 common to all the subjects of the realm, of having freedom 
 to worship God according to their consciences, and under 
 the guidance of the ministers of the communion to which 
 they belong. 
 
 sdAuchter- "6. By holding the members of inferior Church judi- 
 ardercase. ca t or i es liable in damages for refusing to break their 
 ordination vows and oaths, (sworn by them in compliance 
 with the requirements of the statutes of the realm, and, in 
 particular, of the Act of Security embodied in the Treaty 
 of Union,) by disobeying and setting at defiance the sen- 
 tences, in matters spiritual and ecclesiastical, of their 
 superior Church judicatories, to which, by the constitution 
 of the Church and country, they are, in such matters, 
 subordinate and subject, and which, by their said vows and 
 oaths, they stand pledged to obey. 
 
 Culsamond " 7. By interdicting the execution of the sentence of a 
 Church judicatory, prohibiting a minister from preaching 
 or administering ordinances within a particular parish, 
 pending the discussion of a cause in the Church courts as 
 to the validity of his settlement therein. 
 
 Cambusne- " 8. By interdicting the General Assembly and inferior 
 than case. Q mrc h judicatories from inflicting Church censures; as in 
 one case, where interdict was granted against the pro- 
 nouncing of sentence of deposition upon a minister found 
 Stranraer guilty of theft, by a judgment acquiesced in by himself; 
 in another, where a Presbytery was interdicted from pro- 
 ceeding in the trial of a minister accused of fraud and 
 swindling ; and in a third, where the Presbytery was inter- 
 4th Le- dieted from proceeding with a libel against a licentiate for 
 thendy case, drunkenness, obscenity, and profane swearing. 
 
 
QUESTION EXAMINED. 199 
 
 "9. By suspending Church censures, inflicted by the lstand2d 
 
 J Strathbogie 
 
 Church judicatones in the exercise of discipline, (which, by cases. 
 
 special statute, all ; judges and officers of justice' are 
 ordered c to give due assistance ' for making ' to be obeyed 
 or otherwise effectual,') and so reponing ministers sus- 
 pended from their office to the power of preaching and 
 administering ordinances; thus assuming to themselves the 
 ' power of the keys/ 
 
 "10. By interdicting the execution of a sentence ofsdStrath- 
 
 !/- /v / i i i bogie case. 
 
 deposition from the office of the holy ministry, pronounced 
 by the General Assembly of the Church ; thereby also 
 usurping the 6 power of the keys,' and supporting deposed 
 ministers in the exercise of ministerial functions, which is 
 declared by special statute to be a high contempt of the 
 authority of the Church and of the laws of the kingdom 
 establishing the same.' 
 
 " 11. By assuming to judge of the right of individuals sth Strath- 
 elected members of the General Assembly, to sit therein, 
 and interdicting them from taking their seats ; thus inter- 
 fering with the constitution of the supreme court of the 
 Church, and violating her freedom in the holding General 
 Assemblies secured to her by statute. 
 
 " 12. By, in the greater number of the instances above 
 referred to, requiring the inferior judicatories of the Church 
 to disobey the sentences, in matters spiritual and eccle- 
 siastical, of the superior judicatories, to which, by the 
 constitution in Church and State, they are subordinate and 
 subject, and which, in compliance with the provisions of 
 the statutes of the realm, their members have solemnly 
 sworn to obey ; thus subverting ' the government of the 
 Church by Kirk Sessions, Presbyteries, Provincial Synods, 
 and General Assemblies,' settled by statute and the Treaty 
 of Union as ' the only government of the Church within the 
 kingdom of Scotland.' " 
 
200 
 
 SCOTTISH CHURCH 
 
 The Church of Scotland has been constrained, thi 
 the persisting refusal of her rightful claims, to withdraw 
 from the position of an Establishment in the month of May 
 of this year (1843). She has perfect right to lay all the 
 unhappy consequences of this event on the conscience of 
 her opponents; for she could not have acted otherwise 
 than she did without committing a great dereliction of duty. 
 As matters stand, it is her opponents who have committed 
 an oppressive fault. The entire mistaking of the true 
 position of the affair is evidenced even in the judgment 
 passed on her final truly glorious, though tragical step ; for 
 it has been asked of her to continue an honest and con- 
 scientious opposition in the Assembly, but not to leave it 
 and thereby consummate the present lamentable disrup- 
 tion. The truth is, that under the circumstances in which 
 it was placed, the General Assembly of the Establishment 
 could not be the General Assembly of the " Kirk of Scot- 
 land," and that the Seceders felt the obligation of keeping 
 their cause pure. The grounds of Secession are quite 
 satisfactorily given in the " Act of Protest," with which 
 they effected, on the 18th May, 1843, their very peaceful 
 and orderly dissolution from the Church of the State, and 
 saw the Church of their fathers once more in the same 
 position in which, as history proves, she had been placed 
 several times before, through an hostility which does not 
 scruple to set aside established concessions and to violate 
 solemnly granted rights. 
 
 In conclusion, the writer would remark, that the ques- 
 tion relating to the so-called " Quoad sacra ministers," was 
 decided by the Court of Session against the Church, quite 
 consistently, it is true, not with several previous decisions 
 connected with this question, but with the views of Church 
 jurisdiction with which that court had set out in the 
 Auchterarder case, but just as unwarrantably as in this. 
 
 
 
QUESTION EXAMINED. 201 
 
 This decision necessarily extended the difference of prin- 
 ciple even to the examination of the roll of the House of 
 Assembly itself. Thus, strictly speaking, the General 
 Assembly of this year (1843) being unable to constitute 
 itself, a split was rendered inevitable, and, as matters 
 stand, it seems to the writer rather promising, with respect 
 to a future settlement, so very desirable, that for the present 
 the two opposite parties separated from each other upon 
 their own antagonistic principles. 
 
 The Free Church claims the right of styling herself the 
 Church of Scotland ; and this is derided, in many quarters 
 of the Establishment, with scorn and contumely. The 
 unhappy question has now arisen whether the former or 
 the latter is to become the Church of the nation. In the 
 opinion of the writer, futurity will declare in favour of the 
 Free Church;* and either the injustice which has been 
 committed will be redressed, or the present Establishment 
 of Scotland must gradually lose its effectiveness and the 
 respect of the nation, an event which cannot but be 
 accompanied by the most disastrous consequences towards 
 all the relations of the country. 
 
 * During the writer's visit to Edinburgh in the month of May, 1843, 
 he witnessed the first histoi-ical verification of this. The deputations 
 from the Presbyterian bodies of America, Ireland, Holland, and England, 
 together with those from the bodies of the earlier Scottish Seceders, 
 that were deputed to the then undivided General Assembly had, at 
 the disruption of the Assembly, to decide, where they should find the 
 representatives of the Church of Scotland. But all of them, without 
 a moment's hesitation, passed St. Andrew's Church, and went to 
 Cannon-mill Hall, to address what they deemed the true General 
 Assembly of the Kirk. 
 
ALEXANDER MACINTOSH, 
 POINTER, 
 
 GKI.A1 NEW STREET, LONDON. 
 
LATELY PUBLISHED, 
 BY JAMES NISBET AND CO., 
 
 AT THEIR 
 
 SELECT THEOLOGICAL CIRCULATING LIBRARY 
 21, BERNERS STREET. 
 
 In foolscap 8vo., price 4s., cloth boards and lettered, 
 
 THE CHURCH of CHRIST POURTRAYED, as to the Peculiar 
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