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Document : 144

Title: Blackwood's Magazine, Vol. 46, No. 289

Author(s): Anonymous

BLACKWOOD'S
EDINBURGH MAGAZINE.
No. CCLXXXIX. NOVEMBER, 1839. VOL. XLVI.
ON THE PRESENT POSITION OF THE CHURCH OF SCOTLAND.
PART I
THE lively but painful interest excited
among the friends of the Church of
Scotland by recent judicial proceedings,
which, in the opinion of many of
her most zealous lay and clerical members,
threatened her independence,
or even her existence, imposes on us
the duty of reviewing the past history
of the question involved in the Auchterarder
Case, and of endeavouring to
present, in a short and intelligible
form, the result of what we believe to
have been a patient and dispassionate
consideration of the subject. Some
months have elapsed since the decision
of the House of Lords in the Auchterarder
Case, the judgment of the
Court of Session in the Lethendy
Case, and the discussions in the General
Assembly respecting the course
to be pursued by the Church, with a
view to the removal of the difficulties
with which she is beset. All undue
excitement, therefore, may be supposed
to have so far subsided as to render
the present occasion well fitted for our
purpose; and we entreat the attention
and the favourable construction of our
readers, while we endeavour, in the
first place, to remove certain erroneous
impressions, as they appear to us, tending,
materially to increase the difficulties
inseparable from the discussion of
this subject, and to expose certain fallacies
respecting the true position and
functions of the Church, as a component
part of the British Constitution —
fallacies which have obtained the more
ready currency, because presented in
a captivating form, couched in loose
and popular language, and addressed,
principally at least, to that portion of
the community, of whom we shall be
pardoned for saying, that neither their
education nor their mental habits have
fitted them to sit in judgment on a
question of constitutional law.
The most directly important and
interesting enquiry, no doubt, relates
to the practical expediency of that
legislative measure to which the
Church has resolved to ask the sanction
of Parliament. But it is impossible
duly to appreciate the merits of
the proposed law, unless we first understand
the proceedings which have
placed the Church in her present position,
and thus ascertain the motives
of this application to the Legislature,
and the true intent and object of those
who advocate a change. Our observations,
however, on this part of the
case, shall be as concise as possible.
It is said that a collision has taken
place between the Civil and Ecclesiastical
Courts, as separate and independent
jurisdictions — that neither of
these co-ordinate powers can, without
a violation of its duty, consent to abandon
the independent ground which it
has assumed and seeks to maintain —
that therefore no executive power has
the means of interposing, or the right if
it had the means — and that an alteration
of the existing law, or, it may be,
of the existing constitution, is the only
possible remedy — the only possible
mode of preventing what, in colloquial
language, is called a dead lock. But
we doubt very much whether this be a
true or correct statement of the question.
We more than doubt that a collision,
in the proper meaning of the
term, can take place between the Civil
and Ecclesiastical Courts of this country.
To render a collision possible
between two separate branches of the
same constitution, it is not necessary,
we admit, that both should be conversant
exclusively with the same subject--
matter, or that the territory, or the nature
of the two jurisdictions, should be
altogether the same. Civil, criminal,
fiscal, or ecclesiastical matter, may
equally furnish the materials of a collision.
But both courts must be armed
with equal powers, or powers the
same in kind, if not equal in extent,
constitutionally if not actually equal,
for enforcing its orders and maintaining
its authority, otherwise that which
is constitutionally weaker must yield,
just because the constitution has given
it no adequate means of resistance, and
because the theory of the constitution
must therefore be presumed to be, that
the one shall be subordinate to the other.
This is a most grave and serious subject;
and we should be sorry to be
supposed to have broached so important
a doctrine unnecessarily, or without
due consideration. Let us be
judged, therefore, by the sequel.
The majesty of the Law is supported
and vindicated by the exercise of certain
powers which the Constitution has intrusted
to the civil courts. To give
redress for wrong done, and to punish
the wrongdoer — in the exercise of
preventive justice, to prohibit the perpetration
of meditated or threatened
injury — is the peculiar province of
such courts, and the free and unrestrained
use of these powers is
essential to the maintenance of law
and order in the state. But it would
have been in vain to vest such powers
and such discretion in any body of men,
by virtue of statute or otherwise, if
the means of enforcing their own decrees,
and compelling obedience to
their own orders, had been at the same
time withheld. Therefore it is, that
the Constitution has conferred on the
Judge the power of execution, or, in
other words, has permitted to him the
use of physical force, to secure the
infliction of the pubishment which he
has awarded, the payment or performance
of the recompense which he has
decreed, and the execution of all orders
whatsoever, which he in his discretion
has seen fit to pronounce. Between
any two Courts, armed with
such powers as these, a collision (how
ever improbable the occurrence) may
take place, as, for example, between
any two of the three Courts of Session,
Justiciary, and Exchequer. If
contradictory orders be issued by two
such courts, the unfortunate individual,
to whom they are both addressed,
has only the alternative of obeying
one or the other; he cannot obey both;
and his imprisonment will be the appropriate
punishment of his inevitable
disobedience of the one or the other.
The court whose order he has obeyed,
may then direct his liberation; and
thus, and thus only, a proper collision
arises. Let us not be supposed to
maintain that both of these two courts
must necessarily be right or justifiable,
in a moral point of view, in the means
adopted to maintain their own dignity,
or the authority of the law. On the
contrary, either one or both may have
erred in judgment, and abused the
discretion committed to it. But because
a Court has done iniquity, it has
not therefore exceeded its constitutional
powers; nor does it therefore follow
that its commands are brutum, fulmen,
and may be safely disregarded or
despised. Every human institution is
necessarily imperfect: and it is in consequence
of the impossibility of finding
a better tribunal, that judgment has
been committed to fallible men, who,
like their brethren, may from error in
judgment, or even from other and less
excusable causes, do grievous and irreparable
wrong. But the power being
once conferred, by reason of the overwhelming
necessity of the case, it follows
as an inevitable consequence, that
for the wrong done in the exercise of
that power there is no remedy, but only
a preventive safeguard against its commission
in the moral and constitutional
responsibility of the judge, which always
bears exact proportion to the extent
of his power.
The Court of Session, then, as the
supreme civil tribunal of this country
being invested with powers such as
we have endeavoured to describe, are
there any materials for a collision between
that court and a Church Court?
Is there in the latter any power which
can control the proceedings of the
former, or any power which is equal
in kind, that is constitutionally if not
actually equal, to the powers of the
civil court?
1st, It will be readily conceded to
us, that the Church Courts have no
powers of execution, no means of enforcing
their own orders. Disobedience
of such orders infers no penal
consequences, by imprisonment or
otherwise. But, 2d, It necessarily
follows from this defect, as well as
from the confined and exclusive character
of ecclesiastical jurisdiction,
that a Church Court cannot competently
issue any decree which may be
carried into effect only by the use of
physical force. To ordain payment
or performance is, therefore, clearly
beyond the power of such a spiritual
court; and it is equally so to provide
a remedy, or to give redress for any
personal or patrimonial wrong. 3d,
From the defect of power first noticed,
it also follows that Church Courts
have no preventive or prohibitory
power; for an interdict or an injunction
which cannot be enforced, is
something like a contradiction in
terms. Lastly, we take leave to doubt
whether Church Courts have any penal
jurisdiction, properly so called.
Not that we would venture to dispute
the powers of the Church to inflict
ecclesiastical censures, and to proceed
to deprivation or suspension of ministers
and licentiates, on certain well
ascertained and peculiar grounds. In
this popular sense, the Church Courts
may be said to punish members of the
Church. But that is a very different
matter from the infliction of punishment
by a court of law — different both
in character and effect. That is not
the administration of public justice;
but rather is closely analogous to, if not
identical with, the management of the
internal concerns of an exclusive body,
incorporated by statute, and invested
with certain privileges and immunities.

We know that this view of their
position is by no means palatable to
many zealous and and influential members
of the Church, and it may, at first sight,
stagger even some of our most unbiased
readers. But far from dreading
to subject our opinions to the test
of discussion, we are satisfied that the
theory which we now propound is at
once so simple, so intelligible, and so
rational, that any thing like a dispassionate
consideration of the subject
must ensure its cordial reception.
THE CHURCH, then — that is, the
Church of Scotland — in connexion
with the State, whose ministers have
by law an indefeasible right to a maintenance
out of the teinds, and are recognised
as the accredited organs of
the State in teaching the national religion
and superintending the education
of the people — to the benefit of
whose ministrations every Scottish
subject has by law an undoubted title
— the Church, which the Sovereign
has solemnly sworn to maintain as an
integral part of the Constitution, and
which, on the other hand, has sworn
allegiance to the Sovereign, not only
as an individual, but as representing
the majesty of the law — the Church,
which looks to the law to provide for
the security of her privileges and immunities,
and demands from the State,
as matter of right, an extension of her
means of usefulness, at the expense of
the State, to meet the wants of an increasing
population — this Church, we
say, as distinct from the Catholic
Church of Christ, of which she is a
noble branch, is in law an incorporation,
created by the law for the achievement
of most important ends, subject,
like every other individual or body
corporate, to the supreme civil authority,
in all cases where she does not
enjoy some express privilege or exemption.
The distinction at which we
point, has been eloquently and forcibly
explained by the venerable President
of the Court of Session, in his
late solemn and most impressive address
to the Presbytery of Dunkeld.
"I think," he says, "much confusion
has lately arisen from the Church not distinguishing
between her situation as a
portion and member of the Universal or
Catholic Church of Christ, and her situation
as the Established Church of Scotland.
In the first view, that you are a
branch, and a most numerous and most
respectable one, of the Universal Church
of Christ, you are on the same footing —
but on no better footing — with all the
other bodies adhering to the Presbyterian
form of church government throughout
the country. Taking you in your character
as merely members of the Church of
Christ, the Synod of Burghers, and the
Synod of Anti-Burghers, or any other
Synod, have the same powers and privileges
as you have, and you have no greater
powers than they have. But, considered
as having been adopted by Parliament to
be the Established Church of Scotland,
you neither had nor can have any powers
or privileges except what Parliament gave
you when it adopted you as the Established
Church."
From the obvious and indisputable
soundness of this reasoning, it might
fairly be presumed that the Church's
claim to exclusive and independent jurisdiction,
must be rested entirely on
the statutes to which she owes her existence
as a national establishment. But
of late some doctrines have been obscurely
hinted at, and some opinions
pretty freely indicated, which, as they
are startling in the announcement,
are still more alarming in their consequences.
It seems to be maintained,
that there resides in the Church of
Scotland some undefinable, but inherent
and indefeasible authority, derived
from the Saviour himself as Head of
the Church, in the exercise and maintenance
of which, all considerations of
expediency, and all reverence for civil
government, must be abandoned and
forgotten. We are deeply anxious
to understand this doctrine, and we
shall analyse it with care. If the
Church have a duty to perform to her
spiritual head, which is inconsistent
with obedience to the civil law of the
country, one of two conclusions is inevitable
— either the Church has allied
herself with a Government which is
unfit for union with a Christian Church,
or there is something in the character
of the Christian religion itself, which
renders an alliance of the Church with
the State improper or inexpedient.
The element of disunion must reside
in the one party or the other. Now,
the latter of these alternatives, it will
be observed, is directly subversive of
the whole argument in support of civil
establishments of religion; but it is also
something worse — it is obviously a libel
on the Gospel to say, that Jesus Christ
founded a church which could not
exist in union with the freest and most
perfect civil government that the world
ever saw. It is irreverent, if not
blasphemous, to maintain or believe
that the Gospel dispensation, the
Gospel of peace, imposes duties inconsistent
with civil obedience — that the
faithful and uncompromising minister
of Christ may, or must, be a rebellious
and disobedient subject. No minister
of the Church of Scotland, we are well
assured, will persevere in entertaining
or promulgating such an opinion. But
is there any thing in the constitution
of this country, or in its existing laws
which renders it unfit for an alliance
with a branch of the Catholic Church?
There is no new element in the Constitution,
no fundamental principle of
Government, which did not exist when
the alliance was formed in 1592, or
when it was renewed at subsequent
periods; and the rights and privileges
of the Church are, down to the present
day, regulated by the statutes passed
on these occasions. We shall consider
by-and-by how far the Church herself
has recently maintained and performed
the conditions on which she originally
received the protection and support of
the State.
But we may, after all, misunderstand
the views of some of our clerical
friends as to the nature of the duty
imposed, and the authority conferred
on them by their Divine Master, to
resist the civil power in certain cases.
It may be, that no more is meant than
the duty and authority to preach the
Gospel in spite of all opposition, and
to maintain and defend the faith in
the face of the cruelest intolerance
and persecution. Surely this is not
the day when such doctrines need be
pressed on the public attention, or the
mind of the Legislature. Fear of
persecution can hardly be the inductive
cause of any recent movement in
the Church. But, besides, if such be
the true meaning of the opinions to
which we have referred, what connection
have they with the recent proceedings
of the Church, or how can
they be used in defence of the Church's
present disobedience of the civil law?
There is no question of doctrine raised.
There is no proposal on the part of
the Court of Session to remodel the
Confession of Faith, or to interfere
with the office of the Church in expounding
its doctrines. That standard
of orthodoxy is part and parcel of the
Treaty of Union between England and
Scotland; and an invasion of the
Church's exclusive privileges, as the
National Teacher of Religion, would
be high treason against the Constitution.
But it is not alleged that any
such violence is threatened. The subject
of contention  is not matter of doctrine,
but admittedely matter of discipline.
The proceedings of the Church
Courts, which were made the subject
of litigation in the Court of Session,
related to the internal management of
the Church of Scotland, as a body
corporate, created by statute.
It may still be argued, however, that
one part of the Church's duty to her
spiritual head, consists in asserting and
maintaining to the utmost all the privileges
conferred on her as a national
establishment. This we freely admit.
It is her duty to maintain the privileges
and independence conferred on
her by law — according to law — by
all lawful means. But it cannot be her
duty to assert or maintain privileges
inconsistent with law, which the law
has withheld or not conferred. And
accordingly the argument just returns
to the point from which we set out.
The only question which has truly
arisen, regards the nature and extent
of the privileges and jurisdiction conferred
on the Church by statute.
Let us shortly advert, then, to the
nature and extent of the Church's statutory
powers and privileges. In the
first place, she is the teacher of the
national religion, and superintendent
of all educational institutions; and in
these matters her powers are exclusive.
By common law, independent of any
special enactment, she would, as a
corporation, be entitled to pass resolutions,
and to make rules and regulations
for the guidance of her members,
so long as they were not inconsistent
with the public law of the country. But
these consuetudinary privileges are not
extended, or even expressly recognised
by any statute; far less has the
Legislature conferred on the Church a
power of making ordinances, which
shall be at once against the law and
above the law. Then as to the composition
of the Church itself, some
powers are conferred by the statutes
relative to the induction of ministers,
or (as would be said in the case of any
other incorporation) relative to the
admission of new members; but these
are not very extensive or various,
(though certainly most important,) being
confined to taking trial of the qualifications
of candidates, and granting
or refusing induction or admission, according
to the opinion which the Presbytery,
as the executive officer of the
incorporation, shall form respecting
these qualifications. Some such power
as this is to a greater or less extent
enjoyed by every body corporate.
Previous to the recent Municipal Reform
Act, the absolute and irresponsible
power of election was vested in
the corporations of the Scotch burghs
— a power far more extensive and peculiar
than that conferred on the Church
by statute, of taking trial of the qualifications
of candidates. Many corporations
also exist, both in Scotland and
England, possessed of special privileges
and immunities, in which candidates
for admission are presented or nominated
by some third party, independent
of the corporation, but are tried
and admitted by the corporation itself.
Every step that we advance tends
to confirm and illustrate the proposition
with which we started, that the Established
Church of Scotland is in law
nothing but an incorporation, however
harsh the phrase may sound. Let
there be an end of mystification on
this subject. If the Church has any
power or privilege inconsistent with
the character of a corporation, any extraordinary
and anomalous exemption
from civil jurisdiction or civil obedience,
which raises her in law above the
character of an incorporation, let it be
fairly announced, and let all men understand
from what source it is derived,
or to what source at least it is ascribed.
But it is unbecoming the dignity or
the honesty of a national establishment,
to indulge in vague and meaningless
boasting of powers undefined and
undefinable, too subtle for the comprehension
of ordinary understandings,
conferred for unexplained purposes,
productive of unascertained effects,
ascribed at one time to divine authority
and commission, at another to
the statutes of the realm, and at another
still, to some immemorial usage
of which the evidence is not extant.
Again, we say, this is neither honest
nor decorous. If the advocates of the
opinions to which we refer, will fairly
put their case on the Acts of Parlialiament
(to which they are now compelled
if our reasoning be sound),
the whole case may very soon be
brought to issue. Be it observed,
we have not in the remotest degree
touched on the merits of the Auchterarder
cause — we have not said a word
on the construction of the statutes.
But we hope we have brought our opponents
to admit, that their case depends
on the construction of the statutes.
This admission once made, our
task, or at least one portion of it, is
near a close.
But the powers conferred on the
Church by the Acts of Parliament are
said to be so extensive, that though no
Presbytery may directly interfere with
civil rights, yet in the exercise of these
powers they may, and often must, so
act, that important civil consequences
will follow — patrimonial benefit to one,
and patrimonial loss or injury to another.
The Presbyteries do not maintain,
that they can simply refuse to receive
any candidate who is defiled with
what has been somewhat indecently
denounced as the "leprosy of patronage;"
but they so read the Acts of
Parliament as to extract from them
power to make the veto law, and thereby
indirectly to allow the people to
defeat the choice of the patron. This
we hope and believe is a fair representation
of their construction of the statutes.
But it does not concern our
present argument to enquire, whether
it be a right, and sound, and legal construction,
or whether the Parliament
of Scotland really intended to confer
such powers as the Church claims.
It is enough for our purpose, that the
claim now advanced depends on the
construction of statute. The Church,
of course, cannot be surprised to find
that an Act of Parliament may bear
two constructions, or that some other
party interested should think the
Church's construction wrong. What
is the consequence? The most Quixotic
champion of the Church's powers,
we should think, will hardly venture
to maintain, that among the other
privileges conferred by these Acts
of Parliament, the Legislature has
made Church Courts interpreters of
statutes. This is the office of the civil
court in all countries, which, so far as
we know, has never been abolished,
derogated from, or transferred to other
hands; and it would surely require
enacting Words of special force and
stringency, to create in the Church a
rival power which should control the
Civil Court, or reign in conjunction
with it over a divided empire. No
implication, at least no provision of
doubtful meaning, could be permitted
to abrogate a principle which lies at
the foundation of every known system
of jurisprudence. If, then, the Church
be not made its own judge in the interpretation
of statute law — if the construction
of the Church be not conclusive
and binding on all the lieges —
there must necessarily be some higher
tribunal to which the Church is amenable,
and whose interpretation she is
bound to receive and adopt. When a
patron and a presbytery, therefore, differ
as to the limits of their respective
rights and powers as regulated and defined
by Acts of Parliament, they must
of necessity submit their dispute to the
decision of the court whose jurisdiction
is private in the interpretation of
statutes — that is, to the Court of Session.

But it is said that the present is a
question of jurisdiction, and that, in a
competition of jurisdictions, neither of
the courts claiming is the proper judge.
We do not admit either the truth of
the premises or the legitimacy of the
conclusion. 1st, There is no question
of jurisdiction; for the Presbyteries
under the statutes are acting ministerially,
not judicially. But let that
pass. 2d, Supposing there were a
question, whether the jurisdiction of
the Court of Session be excluded by a
privative jurisdiction vested in the
Church Courts by statute — so far from
the Court of Session being an incompetent
tribunal for the disposal of that
question, the nature of the case renders
it the only competent tribunal.
Every lawyer knows, and all men may
be made to understand, that the Supreme
Civil Court is the proper tribunal
for disposing of questions of jurisdiction,
and that all matter of jurisdiction
is matter proper for the decision
of that Court. Were it otherwise, no
such case could ever be extricated.
The Supreme Civil Court is entitled
and bound to take cognisance of all
complaints, except where it can be
shown that its jurisdiction is excluded.
The party who pleads the exclusion of
the Court's jurisdiction, of course submits
that question to the decision of
the Court. He does not stand aloof
and refuse to plead at all, because he
knows well, that, if he were so obstinate
or so ill advised, judgment must
go against him by default, and the
strong arm of the law would compel
him to give obedience to that judgment.
But he appears and pleads,
and the Court disposes of the question
of jurisdiction, either by dismissing the
complaint, or by sustaining its own jurisdiction
and giving redress. In the
latter event, was it ever heard of that the
party who had pleaded the exclusion
of the Court's jurisdiction, refused to
abide by the Court's decision, or solicited
the interference of the other Court
whose jurisdiction he had unsuccessfully
attempted to support? This may
be illustrated by a familiar example.
Justices of Peace are by a certain statute
(the Small Debt Act, 6 Geo. IV.)
empowered to dispose of actions for
sums under £8:6:8 in a summary
form, and all review of their judgments
by the Court of Session is specially
excluded. It would be in vain,
therefore, for the party defeated before
the Justices, to apply to the Court
of Session for an alteration of their
judgment, on the general ground that
it was contrary to law or evidence.
But suppose such an application to be
made, the Court of Session would be
called upon to decide the question of
jurisdiction, and this they would do by
reading and interpreting the statute.
Again, suppose the party who lost his
cause before the Justices, applied to the
Court of Session to set aside that
judgment, on the ground that the Justices
had exceeded their powers, or had
violated the provisions of the statute,
the Court would, as before, decide the
question of jurisdiction, by reading
and construing the statute; and if they
found that the Justices had exceeded
their powers, they, as interpreters of
the statute, would determine accordingly,
and set aside the judgment complained
of, notwithstanding the exclusion
of review by the statute. The
Justices might have read the statute
differently; but their opinions could
not interfere with the judgment of the
Court of Session, as supreme and uncontrolled
interpreter of the law. Just
so is it with Presbyteries of the
Church. By virtue of certain statutes
they exercise (on the hypothesis) certain
jurisdiction in the trial and admission
of ministers. If a rejected presentee
brought a judgment of the Presbytery
under review of the Court of
Session, and pleaded that he was
wrongously rejected on the ground of
heresy, praying the Court to take trial
of his orthodoxy, and reverse the judgment
of the Presbytery, it is to be presumed
that the application would be
dismissed, and the Court would find
that their jurisdiction is excluded by
statute. But would they decide this
without reading the statute, or are
they to sit in judgment on the statute,
with power to interpret it only in one
way? On the contrary, their judgment
would be pronounced in respect of the
construction which they themselves, as
supreme interpreters of the law, put on
that statute. But, again, if a rejected
presentee complained that the Presbytery
had violated the statute, and exceeded
its powers, what principle or
what consideration, in the name of law
and of common sense, could exclude
the Court from again, as before, judging
of the construction of the statute?
They would read it again, and, if they
thought the complaint well founded,
they would give redress just as they
had done in the case of the Justices of
Peace. Such was the complaint of
Lord Kinnoul and Mr Young in the
Auchterarder case, and such is the
mode in which the Court disposed of it.
The powers and privileges of the
Church Establishment rest exclusively
on statute law; and the Court of Session
is the proper and legally constituted
interpreter of statute. Is it possible
then to dispute, that the statutes
of the realm, as interpreted by the
Court of Session, are the measure of
the Church's powers — that the statutes,
as interpreted by the Court, must
command the obedience of the Church
as completely as if the Legislature had
spoken so unambiguously as not to require
the intervention of an interpreter?
The construction of the Court is
part of the statute — it is law.
What then becomes of the COLLISION
between the civil and ecclesiastical
courts? The latter are bound to
obey the statute as interpreted by the
former, and the Church may be compelled
to obedience by physical force,
which the constitution has furnished
her with no means of resisting. Collision!
This is the collision between a
sovereign and his subject, between the
law and the lieges, between the judge
and the litigant.
Our readers cannot fail to have observed,
that we have avoided entering
on the merits of the Auchterarder
case, and our motive to this course
must be obvious; for if the Court be
entitled, as we venture to think we
have demonstrated, to instruct the
Presbyteries of the Church in the
meaning of Acts of Parliament, and to
define and explain the duties thereby
imposed on Presbyteries, it is enough
for our present argument, that judgment
has been given to a certain effect
on the import of these statutes.
That judgment must, of course, command
the obedience of Presbyteries as
subjects of the realm. But, in order
to a precise understanding of the position
assumed by the Church since
the judgment of the House of Lords,
it may be necessary in a few words to
state, what we conceive to have been
the question raised and determined in
the Auchterarder case.
By the Act 1592, c.116, which has
always been considered and looked
up to as the great charter of the Presbyterian
Church in this country, the
trial and admission of ministers is
committed to Presbyteries, with full
powers to judge of the qualifications
of any party presented to them by a
patron, but under this most emphatic
and significant proviso, "Provided
the foresaid Presbyteries be bound
and astricted to receive and admit
quhatsumever qualified minister presented
be his Majesty or laick patrones."
This Act is admitted to be
in force, and we need not trace the
history of the law of patronage in the
interval between 1592 and 1690. But
in the latter year the Presbyterian
Church was again made the Church
of the State, and the rights formerly
vested in patrons were transferred to
other hands, viz. to the heritors and
elders. A new machinery was called
into existence for the extrication of
these new rights and arrangements;
but the whole system worked so ill, that
it was declared "inconvenient" by
the statute 10 Anne, which restored
patrons to their "ancient rights" of
presenting "qualified ministers" to
the various benefices, and of new
bound and obliged the Presbyteries,
as under the Act 1592, c.116, to "receive
and admit" them, after taking
trial of their qualifications. In 1834,
the General Assembly declared the
Church's resolution not to receive and
admit any minister who should prove
to be unacceptable to a certain portion
of the people of the parish to which
he should be presented, and there was
at the same time framed a set of regulations,
by which Presbyteries are
enjoined to reject every presentee to
whom a majority of male heads of families,
communicants within the parish,
shall object, without the necessity
of their assigning reasons, or of the
Presbytery judging of the reasonableness
or relevancy of the grounds of
objection. Such was the Veto Act.
Under its operation, Mr Young, who
was duly presented by Lord Kinnoul
to the church and parish of Auchterarder,
was objected to by a majority
of the male heads of families, communicants
within the parish, (who
assigned no reasons in support of
their objections,) and in respect of
the objections he was rejected by the
Presbytery, who refused to proceed to
take trial of his qualifications, in terms
of the Acts of Parliament. Lord Kinnoul
and Mr Young were advised that
this rejection was unauthorized by
law, and that the Presbytery had no
warrant for refusing to perform its
statutory functions. They accordingly
complained of this alleged breaking
of the law to the Supreme Civil Court
as the only tribunal in Scotland competent
to the decision of such a question of
statutory duty and statutory privilege.
The patron and presentee pleaded on
the statutes, maintaining that the
powers of the Presbytery were limited
to the matter of qualification. The
Presbytery also pleaded on the statutes,
contending for a different and
more liberal interpretation, and specially
justifying the rejection of Mr
Young, on the ground that the Church
had power, under the statutes, to give
such effect to the Veto of the congregation.
The Court of Session found,
"That the defenders, the Presbytery
of Auchterarder, did refuse, and continue
to refuse, to take trial of the qualifications
of the said Robert Young, and have rejected
him as presentee to the said church
and parish, on the sole ground (as they
admit on the record) that a majority of
the male heads of families, communicants
in the said parish, have dissented, without
any reason assigned, from his admission
as minister, — Find that the said Presbytery
in so doing have 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, and, in particular, contrary to
the provisions of the Statute of 10 Anne, c.
xii., entituled, 'An Act to restore patrons
to their ancient rights of presenting ministers
to the churches vacant in that part of
Great Britain called Scotland.'"
The House of Lords have unhesitatingly,
and without qualification or reservation,
affirmed this judgment, and
it is therefore now settled law, that the
General Assembly's Act of 1834 cannot
be enforced consistently with the
performance of the duty of presbyteries
under the statutes. It is solemnly
decided, after a full, deliberate, and
unprecedentedly laborious discussion,
that the circumstances of a presentee
being unacceptable to the people of a
parish, forms no legal bar to his induction,
and that no Presbytery is entitled
to give effect to the people's dislike,
by rejecting the presentee who is
its object. If this, then, be intrusion —
if being unacceptable to a majority be,
in the eyes of the Church, a sufficient
disqualification, though no grounds of
objection are stated — and if, in such a
case, they consider it intrusion to induct
a presentee, then the import of
the Court's judgment is, that no
Presbytery can legally refuse (if so
required) to INTRUDE a duly presented
and duly qualified minister into a parish,
on the general ground of his
being unacceptable to the people, or a
portion of the people.
By the judgment in the Auchterarder
case, therefore, the Church was sufficiently
certiorated that the passing of the
Veto Act was contrary to law, and ultra
vires of the Assembly; and that the rejection
of a presentee by a Presbytery,
under the operation of that Act, is illegal.
In these circumstances two
courses were open, either of which,
we apprehend, would have been consistent
with the dignity and the independence
of the Church, neither of which
would have subjected her to the charge
of disobedience and rebellion. Viewing
the existing state of the law as an
intolerable evil, she might fairly,
honourably, and consistently apply to
Parliament for an alteration of the law,
and for a legislative sanction of what is
called the principle of non-intrusion.
On the other hand, if a recurrence
to the practice which obtained before
1834, turned out after all no such
mighty evil as in the heat of controversy
it had been represented, or if the
success of an application to Parliament
seemed doubtful or hopeless —
full, ungrudging obedience
to the law, and to the Civil Court as the
interpreter of the law, was the high
imperative duty of the Church, both
as a Christian Church and as the
Church of a Christian State. And is
this submission, this Christian obedience
to the civil power, the less necessary
or the less obligatory, because
the Church has resolved to approach
Parliament as a humble suppliant?
Did any subject of a state ever apply
to the Legislature for powers and privileges,
which in the mean time,
without the Legislature's sanction, and
in despite of the supreme civil authority,
he was exercising by masterful usurpation?
Would it be decorous, would
it be expedient, would it be consistent
with the principles of morality and
religion, would it tend to further the
great end of the Church's existence
in connexion with the State, that while,
with an arrogant assumption of independence,
the Church bid defiance to
the supreme executive authority, and
contemned its orders, she should at
the same time humbly solicit, or respectfully
importune, the Legislature
to make new laws for the regulation
of ecclesiastical concerns, to which, of
course, she will conform so long only as
it suits her own views of ecclesiastical
expediency or ecclesiastical ambition
— as if laws were made only to be
broken, or as if Parliament would lend
a ready ear to the petition of him who
has already set at nought the power of
Parliament, by refusing obedience to
the statute law of the realm? We
have put this case hypothetically only;
but let us see what is the attitude
which the Church has in fact assumed.
The General Assembly, in May
1839, took into their consideration the
judgment of the House of Lords in the
Auchterarder case, and this is their
deliverance: —
"The General Assembly having heard
the report of the Procurator on the Auchterarder
case, and considered the judgment
of the House of Lords, affirming the decision
of the Court of Session, and being
satisfied that by the said judgment all
questions of civil right, so far as the
Presbytery of Auchterarder is concerned,
are substantially decided, do now, in accordance
with the uniform practice of the
Church, and with the resolution of last
General Assembly, ever to give and inculcate
implicit obedience to the decisions
of Civil Courts, in regard to the civil
rights and emoluments secured by law to
the Church, instruct the said Presbytery
to offer no farther resistance to the claims
of Mr Young or the patron, to the emoluments
of the benefice of Auchterarder,
and to refrain from claiming the jus devolutum,
or any other civil right or privilege
connected with the said benefice.
"And whereas the principle of non-intrusion
is one coeval with the Reformed Kirk
of Scotland, and forms an integral part of
its constitution, embodied in its standards
and declared in various Acts of Assembly,
the General Assembly resolve that this
principle cannot be abandoned, and that
no presentee shall be forced upon any parish
contrary to the will of the congregation."
This, it must be admitted, is ingenious
enough; but it is not manly or
straightforward — it is unworthy of
the Church of Scotland. The first
and paramount duty of the General
Assembly, in the circumstances, was to
instruct the Presbytery of Auchterarder
as to their future course in the
matter of Mr Young's settlement. The
Court of Session and the House of
Lords had found that, in refusing to
take that gentleman on trial, the Presbytery
had broken the law — the General
Assembly do not instruct them
to retrace their steps and obey the law.
But neither, on the other hand, have
they the manliness or the courage in
direct terms to enjoin them to set the
law at defiance. They instruct them,
in the first paragraph above quoted, to
"offer no farther resistance to the
claims of Mr Young or the patron to
the emoluments of the benefice;" but
this does not meet the exigency of the
case — this does not dispose of the difficulty
raised by the judgment of the
Court of Session. What that Court
denounced as illegal, and contrary to
the provisions of statute, was not "resistance
to the claims of Mr Young or
the patron to the emoluments of the
benefice," but refusal to take trial of
the qualifications of Mr Young. Had
the resolution, therefore, stopped with
the first paragraph, the Presbytery of
Auchterarder might have been puzzled
to know how the General Assembly
wished or expected them to act. But
then they go on to say, that they cannot
abandon the principle of non-intrusion,
and resolve "that no presentee shall
be forced upon any parish contrary to
the will of the congregation." This
language, as addressed to the Presbytery
of Auchterarder, is perfectly intelligible.
No intrusion, they say, shall
take place, and of course the Presbytery
understand that they are not to violate
this general resolution in the case of
Mr Young. The General Assembly
thus instruct the Presbytery, the defenders
in the Auchterarder case, to
persist in that refusal, which has been
solemnly adjudged to be illegal, and
a violation of the statutes. They direct
and enjoin the Presbytery to disobey
the law. Will the framer of that
resolution, will any member of Assembly
who supported it, venture to say,
that such is not, or was not intended
to be, the meaning of the clause which
we have quoted? Will any advocate
of the Church's recent measures tell
us, that if the Presbytery of Auchterarder
were now proceeding to the settlement
of Mr Young, in obedience to
the civil law, they would not be held
by the General Assembly directly to
have violated the instructions delivered
to them in that resolution?
The Church having been compelled,
for conscience sake as is alleged, to
assume this attitude of defiance, and
for a time so far to abandon her duty
as to set the evil example of disobedience,
it might have been expected, at
least, that her leading members and
her most prominent supporters would
have been ready to join with us in deploring
the necessity which led to so
painful and so mischievous a result;
and, above all, that they would not
have hesitated to admit the true character
of their own conduct and condition
as a Church. But with a glaring
inconsistency, which nothing can explain
or justify, at the very moment
that they are thus declaring war in the
parish of Auchterarder, and reading
this lesson of rebellion to the Presbytery,
their language to the Legislature
and the country is moderate and bland
and peaceful, and, alas, most deceitful!
They say that they are ready "ever
to give and inculcate implicit obedience
to the decisions of Civil Courts;" *
and one writer, who seems to have
been instructed to speak the sentiments
of the dominant party in the Church,
gravely maintains that the Church
has † "deferentially suspended all proceedings
that might conflict with the
actings of the Civil Court," and complains
of the charge of disobedience
brought against the Church as "wanton
and absurd."‡ Is it possible, then,
that the Church designedly speaks to
* Dr Chalmers's Resolution.
† "The Present Position of the Church of Scotland Explained and
Vindicated."
By a Lay Member of the Church. P. 14.	‡ Ibid. p.42.
the Legislature and the country in language
different from, and inconsistent
with, that in which she addresses her
own inferior judicatories? Or is this
resolution of set purpose couched in
terms so equivocal as readily to bear
a double meaning? We most sincerely
hope that the leaders of the Church
have not so far forgotten their own
dignity — nay, abandoned the principles
of common honesty. We cannot
for one moment, even in argument,
assume the possibility of such conduct
or such motives. The Church must
elect one of two courses; if she sincerely
desire to yield obedience to the
law, let her instruct the Presbytery of
Auchterarder to proceed with the settlement
of Mr Young. Till this be
done — cheerfully, unqualifiedly, and
because the law requires it — the supporters
of the Church's recent proceedings
must smother their indignation,
when they are denounced as rebellious
and disobedient subjects.
On general grounds, whatever tends
to interrupt the harmony and good
understanding which ought to subsist
between Church and State, or to lessen
or destroy their cordial co-operation
in promoting the cause of peace and
order and religion, is in itself a national
calamity. At the present moment
too, the scheme of Church Extension,
in support of which the members
of the Church of Scotland have
displayed such noble energy, confessedly
depends for its ultimate and full
success on the pecuniary assistance of
the Government. In a manner and
on grounds which must render the
application irresistible, the Church
demands endowments for those new
places of worship which the liberality
of her own sons has enabled her to
erect. But no man in his senses can
doubt that the course pursued in regard
to the Veto Act, is a material
bar to the advancement of the claim
for additional endowments. Many
men, and these not the least influential
portion of the community, look
on that course with something more
than disapproval. Parliament must
pause, and inquire into the truth of
the charge of rebellion and disobedience
brought against the Church by
a large and most respectable minority*
of her own members. No Government
can reasonably be asked or can safely
consent to confer new boons, and to
make new grants in favour of the
Church, while such heavy suspicions
lie against her loyalty, and good faith,
and obedience.
Add to this, that the agitation of
any such question as the present is
calculated to withdraw the attention
of the clergy from the performance
of their pastoral duties, and to engender
animosities and disunion in the
Church. There is here surely abundance
of present immediate evil resulting
from the course which the last
General Assembly have resolved to
pursue.
But what is there to account for
such zeal, or to justify such sacrifices?
Previous to the passing of the Veto
Act in the General Assembly of 1834,
there were many discussions in the
Church Courts as to the expediency
of that measure, independent altogether
of its legality; but to the
Church Courts these discussions were
entirely, or almost entirely, confined.
Now, however, it is high time that
the attention of all men who are
friendly to the Church, and especially
of those who may be called to legislate
on this subject, should be closely,
anxiously, and impartially directed to
the enquiry, whether such a modification
of the law of patronage as the
Veto Act was intended to accomplish,
would be a practical benefit to the
Church and people of Scotland.
The discussion of every question of
policy is materially facilitated by
ascertaining in the first place the precise
nature and limits of the matter in
dispute, and by a clear short statement,
in unequivocal terms, of the
question to be solved; for, as Mr
Locke remarks, "there is no such
way to give defence to absurd doctrines,
as to guard them round with
legions of obscure, doubtful, undefined
words."
We understand, then, that there is
no proposal now on the part of the
Church to abolish patronage. The
parliamentary enquiry on this subject
in the year 1834, afforded an opportunity
to many of the most distinguished
and best qualified members of the
Church of Scotland to put on record
their valuable opinions, and the result
* The number of members of Assembly who voted for Dr Cook's motion was 155,
in a house consisting of 359 members.
seems to be, that a very great majority
of all classes in Scotland are convinced
that a measure for the abolition
of patronage is neither expedient nor
desirable. In 1834, Lord Moncreiff
informed the Committee of the House
of Commons, that "beyond all doubt
a large proportion, at least more than
one-half of the whole clergy in Scotland,
must be supposed to be adverse to the
motion for repealing the law of patronage."*
Again, in speaking of the
people of Scotland generally, he
says, — †
"I think that there has been great activity
used, and strong measures used;
measures, some of which I own have excited
my great surprise, and my very great
regret, for exciting the people to come
forward in this matter; and that great
exertions have been made to procure
those petitions, and to obtain the signatures
of persons who have little understanding
on the subject, who have never
contemplated the difficulties, who are
moved almost entirely by what I have
already mentioned as the still remaining
strong prejudices and hereditary feeling,
rather than any thing else, against the law
of patronage.
"In this state of things, I find it not
only difficult, I must say impossible, for
me to infer that the feeling of all, or of
any thing like all, the intelligent people of
Scotland is against the law of patronage.
I very strongly suspect that if the city of
Edinburgh, and many other of the large
places within the country, if the counties
even, and even the Royal burghs were
polled, it would be found that there is a
large mass of the population that are decidedly
hostile to the measure, and that
the population of the highest intelligence,
in particular in Scotland, are very much
against it."
If such were the state of feeling in
1834, it is not surprising that hostility
to the existence of patronage in the
Church should have become more and
more uncommon, when, in the report
already referred to, we find such
men as Lord Moncreiff and Mr Bell
on the one hand, and Dr Cook and
Mr Whigham on the other — men diametrically
opposed in their general
views of Church polity — concur in
holding that patronage forms a most
important element in the union of
Church and State, a most powerful
"connecting link" in the maintenance
of that union.‡ It is not surprising
that the General Assembly should, repeatedly
since that time, have negatived
by very large majorities propositions
for the abolition of patronage;
on the last occasion by a majority of
166 to 96.§ For all practical purposes,
therefore, this question may be
fairly considered as settled; and in the
present controversy the Church must
be held not to contemplate in any event
the total repeal of the patronage law.
On the other hand, there is no queslion
raised as to the right of a congregation
to state objections to the
life, literature, and orthodoxy of a
presentee, or the right of the Presbyteries
to dispose of these objections,
and if they be well founded to give
effect to them by refusing to induct.
Under the existing law, the congregation
are afforded two separate opportunities
in the course of every settlement
of advancing such objections;
the first, at the moderation in the call;
and the second, immediately before
ordination;॥ and no one disputes
the competency of Presbyteries to
judge and determine in this matter, or
the power of the General Assembly
to make such rules and regulations as
will give the greatest practical effect
to the privilege of objection, provided
that no attempt be made to extend the
people's right beyond its proper subject
matter, viz. the qualifications of
the presentee properly and technically
so called.
The whole controversy then turns
on the propriety and expediency of
giving to a congregation a right to
reject a presentee without assigning
any reasons, a power of exercising an
absolute veto on the patron's choice,
to which the Presbytery are bound to
give effect, without enquiry as to the
reasonableness of the ground of objection.
It matters little to the argument
whether the people's will be expressed
in the form of a consent or a
dissent. The question relates to the
nature and extent of the power which
should be conferred on the people; and
* Report on Church Patronage, p. 196, In. 1346.
‡ See Report on Patronage, pp. 115, 190, 191, 353, 434.
§ Acts of Assembly, An, 1837, p. 42, 43.
॥ Hill's Practice, Third Edition, pp. 60—64.
† Ibid. p. 197-8.
we understand the principle maintained
by the majority of the Church
to be that no presentee ought to be
settled in any parish where the people
say simple terms, "we do not like
him," or "we will not have him,"
without any explanation whatever.
We have been the more anxious to
arrive at a very clear understanding
of the question at issue, because there
are obvious symptoms of a wish on
the part of the Church to avoid the
real difficulty of the subject. For
example, the pamphleteer already
quoted has the following passage: —*
"Upon this motion" (Dr Chalmers's)
"I only further observe at present,
that while it distinctly pledged the
Assembly to adhere to the fundamental
law of the Church against the intrusion
of ministers, it did not pledge the
house to adhere to the particular mode
of giving effect to that fundamental
law by the Veto of the majority of the
heads of families, but left it open to
the Church hereafter to modify or
alter that branch of the law as might
yet seem to be advisable." Again,
he speaks of "calling in the control
of the Presbytery" where opposition
is stirred up against a presentee
upon groundless prejudices, or
from motives positively unworthy." —
P. 45. Nay, he says, "the very first
duty of the Presbytery in such circumstances
would necessarily be to support
the hands of the patron, and to
put down the unworthy and scandalous
opposition." — Pp. 47, 48. Now
we repeat our admission, that the precise
form in which the people's absolute
right is exercised does not affect
the question of principle, nor would it
alter the course of our argument, if, in
place of the male heads of families
within the parish, the Church had
seen fit to commit the right of Veto to
the females under fourteen years of
age. But the moment that our opponents
begin to speak or to write of
the "control" or the "judgment" of
the Presbytery in this matter, they
necessarily and at once abandon their
broad principle, that the people's dislike,
expressed in a negative monosyllable,
shall exclude — that being unacceptable,
no matter from what cause,
shall constitute a disqualification.
Having so far cleared the way towards
a full understanding of the
question truly at issue, we proceed to
enquire into the merits of the principle
of non-intrusion as thus explained and
defined, and to examine the arguments
chiefly relied on by its supporters.
In the Act of 1834, "The General
Assembly declare, that it is a fundamental
law of this Church, (i.e. of
the Church of Scotland,) that no
pastor shall be intruded on any congregation
contrary to the will of the
people." This is at once the inductive
cause and the justification of the
enactment which follows. The principle
of non-intrusion therefore is defended,
not only on the general ground
of its expediency or necessity, but also
by reason of its antiquity and its fundamental
character. We are told that
it is "coeval with the existence of
the Christian Church," † and that the
Veto Act is therefore no innovation,
but the revival of an old law. This
is perhaps not the most important
branch of the subject; but we are unwilling
to omit the consideration of an
argument so confidently advanced by
the supporters of the General Assembly's
enactment.
We directly and utterly deny that
there ever existed in the Church of
Scotland, or in any Established Church
whatever, such a fundamental law as
is now sought to be enforced. Neither
during the centuries which have elapsed
since the Reformation, nor at any
earlier period, have the people in the
Church of Scotland possessed or exercised
a right of negativing the
choice of the patron, without stating
special grounds of objection for the
consideration of the Presbytery — a
right of having the bare expression of
their will given effect to as against
the presentee, without explanation and
without enquiry. The people, it is
true, have always borne some part in
the ceremony of induction, their presence
and concurrence being thought
conducive to the decency and solemnity
of the occasion, and their right to
state and prove objections to the life
and doctrine of the proposed new pastor,
necessarily implying that their
presence was recognised and desired.
The rule of the Canon Law is "Ple*
The Present Position, &c., p. 13.
† The Present Position of the Church, &c., p. 43.
bis non est eligere, sed electioni consentire."
But this consent, so far from
being essential to induction, was a
mere formal part of the proceedings;
and wherever it was unreasonably
withheld, the officers of the Church
were instructed to proceed notwithstanding,
and by admonition, and, if
need were, by Church censures, to
compel the consent of the people — assidua
admonitione compellere ut omnes
in unum consentiant.* To the same
purpose is the instruction of the Pontiff
Stephanus to the Archbishop of
Ravenna : — "Veruntamen in hoc tuam
plurimum oportet adhiberi solicitudinem,
ut convocato clero et populo talis
ibi eligatur per Dei misericordiam cui
sacri non obvient canones. Sacerdotum
quippe est electio, et fidelis populi
consensus adhibendus est; quia docendus
est populus, non sequendus."† The
text of the canon law is thus clearly
contradictory of the existence of any
right of control in the people; and so
these texts have been understood by all
the commentators, and by the later
canonists. Thus Zoesius, after mentioning
the presence of the people as
a usual part of the ceremony of election
and induction, adds: — "Verum
hoc non ita accipiendum, quasi populus
suffragia daret, sed quod vel populus
aliquem postularet aut desideraret,
quem postea clerus pro populi voto
eligeret, non tamen necessario: vel
quod postea consentiret in electum per
clerum populus, ut gratior esset."‡ So
that the people were at liberty to express
either their wish for the election of
a particular person, or their approval of
the person elected; but neither their
desire nor their opinion had any legal
or necessary effect on the election.
But it is not in the canon law alone
that we find authority for the opinion
which we have so distinctly expressed;
for the Protestant churches generally
have received the doctrine of the
people's assent to precisely the same
effect, and in the same spirit. Boehmer,
in a work which is of great
authority in all Protestant churches,
describes the general practice in
terms almost exactly descriptive of
our own system, which allows the
people to state special objections: —
"Præterea nec ipsi parochiani, quibus
præsentandus præficiendus, prosus
excluduntur, sed itidem voto negato
gaudent, salvo jure præsentandi soli
patrono debito. Audiendi itaque sunt,
et hunc in finem; antequam præsentetur
candidatus Episcopo, sistendus iis
est in cathedrâ sacrâ ad concionem
δοϰιμυστιϰήν habendam; alibi etiam eâ
habitâ et finitâ, superintendens, qui
eidem interesse jubetur, sententiam
parochianorum de candidati moribus
et vitâ exquirit, et quæ forsan in
eo reprobata ipsique objecta fuerint,
consistorio refert."§ In the next section,
he tells us what effect the Consistory
give to such objections. "Operatur
vero hoc votum negativum, ut
probatâ inhabilitate aliisque defectibus
candidato objectis demonstratis, repellatur,
et patrono injungatur ut magis
idoneum præsentet."॥ The same author,
in another and a later work, (as
quoted by Lord Corehouse in the
Auchterarder case,) repeats the same
doctrine in terms equally express; and
we make no apology for the length or
the number of our quotations, because
the presumption arising from the absence
in all Protestant churches, other
than our own, of any provision for
giving effect to the unexplained dissent
of the people in settlements, appears
to be conclusive against the alleged
antiquity of the principle of the Veto
Act. In his Jus Parochiale, Boehmer
says, "Equidem in omni jure
patronatus non quidam excluditur consensus
populi, sed it a ut patrono votum
decisivum in electionetribuatur, populo
negativum ut possint dissentire; non
tamen aliter quam si justas dissensus
causas allegare queant." ¶
It would be an easy matter to multiply
authorities on such a point, but we
refrain, the rather because we apprehend
that our opponents in the argument
will hardly venture on this field
of enquiry. They will, we think, hardly
* 1 Dec. Dis. 63, cap. 11.
† Ibid. cap. 12.
‡ Zoesius in Decret. lib. I. tit. iv. § 24. See also Lancellotti, Inst.
Jur. Can. lib.I.
tit. xviii. § 1, et seq.
§ Boehmer, Jus. Eccles. Protestantium, lib. III. tit. xxxviii. § 77.	॥
§ 78
¶ Boehmer Jus Parochiale, III. I. 18. as quoted by Lord Corehouse.
Robertson's
Report, vol. ii, p. 222.
affect to find traces of their fundamental
principle, either in the Canon
Law or in the ecclesiastical polity of
the continental Protestants. For the
same reason we shall assume, without
argument, that no such principle exists
in the Church of England.
But the assertion of the fundamental
principle is rested mainly, we presume,
on the history of the Reformed
Church of Scotland, and the claims
and pretensions to exclusive power and
jurisdiction which that Church has
from time to time advanced. To a
consideration of these we accordingly
proceed.
In the year 1558, on the eve of the
Scottish Reformation, but while the
Canon Law was still the law of the
Church, and as such the law of the
land, immediately after the accession
of Elizabeth to the English throne,
and while the Queen Regent in Scotland
was "labouring what she could
to make up the differences that had
arisen in point of religion,"* the
grievances of the CONGREGATION (as
the Reformers were called) were presented
in an articulate form to the
Regent, and by her remitted to a convocation
of all the ecclesiastics within
the kingdom. Among other demands,
there is one relating specially to the
settlement of ministers; "That Bishops
be elected by the consent of the
gentry of the diocese, and parish priests
by consent of the parishioners." †
This is the first regular and formal
intimation, so far as we know, of a desire
on the part of any section of the
Church of Scotland for the introduction
of a new principle into this branch
of Ecclesiastical Law. The answer
of the Convocation is, "That what is
decreed by the Canon Law concerning
the election of bishops and pastors,
ought to be maintained entire. And
moreover, seeing the election of prelates
was a privilege belonging to the
Crown, which required only the consent
of the Pope to determine any
thing in opposition thereto, at a time
when the Queen was so young, would
be a piece of very high indiscretion
and insolence, and a treasonable encroachment
upon the royal prerogative."

But the demand on the part of the
people, thus, for the first time, announced
in general terms, was not lost
sight of, when the triumph of the reforming
principles in 1560 gave to
John Knox and his brethren a favourable
opportunity of pressing on
the notice of Parliament such views
as they deemed necessary to the promotion
of the Reformation. It was
under these circumstances that tho
"First Book of Discipline" was compiled,
and submitted to Parliament as
a system of ecclesiastical polity suited
to the improved principles and condition
of the Church. Many of its
provisions, however, were so distasteful,
especially to the nobility,
that it never obtained the sanction
of the Legislature, but, on the contrary,
was generally denounced as
a "devout imagination." ‡ The authority
of this book therefore is, to
say the least, extremely questionable;
nor could it, with any show of reason,
be relied on as evidence of the existence
of a fundamental law. But, as
illustrative of the views entertained on
many important questions of polity,
by the fathers of the Reformation in
Scotland, it is beyond doubt a valuable
monument, and well worthy of notice
in such a discussion as the present.
The fourth chapter concerns the settlement
of ministers, and the subject
is thus introduced: —
"In a church reformed, or tending to
reformation, none ought to presume either
to preach, or yet to minister the sacraments,
till that orderly they be called to
the same. Ordinarie vocation consisteth
in Election, Examination, and Admission.
And because that election of ministers,
in this cursed Papistrie, hath altogether
been abused, we think expedient to intreat
it more largely."
The initiative, or the right of election,
is then committed to the people:
"It appertaineth to the people, and to
every several congregation, to elect
their minister." But if the people did
not exercise their right within forty
days after the vacancy, the election
was to devolve upon the superintendent
and his council, in whose place the
presbytery now stands. In the first
case of course, that of absolute popular
election, no minister could be elected
who was unacceptable to a majority
* Keith's History, p. 78.	† Ibid, p. 82,
‡ Tytler's History of Scotland, vol. vi. p.19.
of the congregation, and no collision
could take place between the right of
nomination and the mera voluntas,
the unreasoning dislike, of the people.
But when the election fell to the
Church Court, let us see what provision
was made for consulting the wishes
of the people. In the first place, it is
said that "the admission of ministers
to their offices" (as distinct from election,
and forming the third part of
"ordinarie vocation") "must consist
in [the] consent of the people and
church whereto they shall be appointed,
and approbation of the learned
ministers appointed for their examination."
And if the "learned ministers"
approve of the candidate; if his "doctrine
be found wholesome, and able to
instruct the simple, and if the Church
justly can reprehend nothing in his
life, doctrine, nor utterance, then we
judge the church (i.e. the congregation)
which before was destitute,
unreasonable, if they refuse him whom
the Church did offer; and [that]
they should be compelled, by the censure
of the councell and church,
to receive the person appointed and
approved by the judgment of the godly
and learned." — "For altogether
this is to be avoided, that any man be
violently intruded or thrust in upon
any congregation; but this liberty,
with all care, must be reserved to
every several church to have their
votes and suffrages in election of their
ministers. But violent intrusion we
call not, when the councell of the
Church, in the feare of God and for
the salvation of the people, offereth
unto them a sufficient man to instruct
them, whom they shall not be forced
to admit before just examination, as
before is said."
Violent intrusion therefore, according
to the"First Book of Discipline,"
does not consist in compelling the congregation
to receive a minister whom
they wish to reject without stating
relevant objections to his "life, doctrine,
or utterance;" for this latter
course is recommended to the Church
Court, while violent intrusion is denounced
as inexpedient. Between
the Reformers of that day at least, and
the framers of the Veto Act, there is
but small sympathy. The stern and
manly mind of John Knox must have
revolted from the idea of giving effect
to objections, the grounds of which the
people would not or could not state.
If the First Book of Discipline is to
be taken as an exposition at length of
the views of those men who, in 1558,
required the consent of the people in
the settlement of ministers, the earliest
Reformers clearly looked to popular,
or a mixture of popular and clerical
election as the most desirable system,
and must, of course, have aimed at
the total abolition of the ancient rights
of patronage. Indeed, it is impossible
to read the above quoted passages, and
to observe the studious omission of all
allusion to the patron's right and interest
to interfere, without arriving at
the conclusion, that the authors of the
First Book of Discipline wished and
intended that lay patronage should
form no part of the new code of ecclesiastical
law. With the wisdom of
the design we have at present no concern;
suffice it to say, that the attempts
to abolish patronage in the
sixteenth century were eminently unsuccessful.
For not only was the First
Book of Discipline rejected by Parliament,
but in five years after its compilation,
the leaders of the Church
found themselves compelled to admit
and acquiesce in the patron's right to
present to benefices. In 1565, the
General Assembly solicit her Majesty
"that the Benefices now vaikand,
or has vaikit since the moneth of
March 1558, or that hereafter sall
happin to vaike, be disposed to qualified
and learned personis, able to
preach God's Word, and to discharge
the vocatioun concerning the ministrie,
be the tryall and admissioun of the
superintendents."* This seems modest
and reasonable enough, but the Queen's
answer betrays considerable jealousy
of the designs of the Church: — "To
the second article it is answerit, That
her Majestie thinks it na wayes reasonable
that scho sould defraude herself
of sa great a Pairt of the Patrimonie
of her Crowne, as to put the
Patronage of Benefices furth of her
awin hands."† The explanation of the
General Assembly, in their "Answers
to the Queen's Answers," is a complete
submission and acquiescence in
the existence and exercise of patronage
within the Church: —
* Keith, p. 534,	† Ibid, p. 550.
"Our mind is not that her Majestie,
or any uther Patron of this Realm, sould
be defrauded of their just Patronagesi;
but we mean, quhensoever her Majestie or
any uther Patron does present any person
to a Benefice, that the person presentit
sould be tryit and examineit be the judgement
of learned men of the Kirk, sick as
presently are the superintendents appointed
thereto: and as the presentatioun
of Benefices pertains to the Patrone, sa
aucht the collatioun thereof, be law and
reason, pertain to the Kirk: of the quhilk
collatioun the Kirk sould not be defraudit,
more nor the patrones of their presentatioun:
For utherwayes, if it sal be lesum
to the Patrone absolutely to present quhom
ever they please, without Tryall or Examinatioun,
what, then, can abyde in the
Kirk of God bot meere Ignorance without
all Ordour?"
All, therefore, that the Church here
proposes as a check on the absolute
exercise of patronage, is the trial and
examination of presentees; and the
motive for insisting on this is perfectly
satisfactory — viz. to prevent the
intrusion of ignorant men into the
ministry.
Then follows the Act 1567, c. 7,
which, in the spirit of the above communications,
statutes and ordains —
"That the examination and admission
of ministers within this realme be only
in the power of the Kirk, now openlie
and publickly professed within the samin,
the presentation of laick patronages
alwaies reserved to the just and
auncient patrones."
Various attempts, however, still continued
to be made, to substitute the
election of the people or of the
Church Court for the presentation
of the patron. Of these, one of the
most celebrated, and historically the
most important, is contained in The
Second Book of Discipline, compiled
by Andrew Melville and others in
1578 — a work of which it is only necessary
to say, that, though some of
its provisions received a partial and
doubtful sanction from Parliament,
that portion to which our attention is
at present directed, (Chap. III. §4,)
was certainly never admitted as law:
"Ordinar and outward calling (it is
said) hes twa parts, election and ordination.
Election is the chusing out
of a person, or persons, maist abile to
the office that vaiks be the judgment
of the elderschip and consent of the
congregation." And a little after (§
5): — "In this ordinar election it is to
be eschewit that na person be intrusit
in ony of the offices of the kirk, contrar
to the will of the congregation to
whom they ar appointed, or without
the voce of the elderschip." This is
a very broad doctrine, boldly stated;
and, if it had been represented as a declaration
of the existing law, it might
have been a difficult task to reconcile
it with the admissions of the Church in
their answers to the Queen in 1565.
But it is not a little remarkable that,
in a subsequent part of the book,
Melville and his coadjutors admit, that
the system which they propose and
admire is altogether impracticable in
conjunction with patronage — that the
two are positively incompatible. In
a subsequent chapter (Chap. XII. §
9) they say: — "The libertie of the
election of persons callit to the ecclesiastical
functions, and observit without
interruption swa lang as the Kirk
was not corruptit be Antichrist, we
desyre to be restorit and retenit within
this realme, swa that nane be intrusit
upon ony congregation, either
be the prince or ony inferior person,
without lawful election and the assent
of the people ower quham the person
is placit; as the practice of the apostolical
and primitive kirk and gude
order craves. And because this order,
quhilk God's word craves, cannot stand
with patronages and presentations to
benefices usit in the Paip's kirk, we desyre
all them that trewlie fear God, earnestly
to consider that, for swa meikle
as the names of patronages and benefices,
together with the effect thairof,
have flow'd fra the Paip and corruption
of the canon law only, in so far
as thereby ony person was intrusit,
or placit owir kirks having curam animarum,"
therefore they beseech all
true Protestants to join them in the
crusade against patronage.
On this passage we remark, in the
first place, that there is a clear admission,
by the framers of The Second
Book of Discipline, that a right of
election in the people cannot exist in
union with the exercise of the patron's
right of nomination; and if this be
morally true, we maintain, in the se*
Keith, ut supra.
cond place, that it must be historically
untrue that the liberty of election in
the people was "observit without interruption
swa lang as the Kirk was
not corruptit be Antichrist." For
this seems to imply that the introduction
of patronage and the corruption
by Antichrist were contemporaneous;
that the one did not exist before the
other. Now, in what church is it asserted
that patronage did not exist,
and that the liberty of election in the
people was observed without interruption?
Is it in the Church universal
during the first ages, or at least
before Constantine? The history of
those days, one would think, can be
of little value in this question. The
absence of patronage, where its exercise
was impossible, in a Church not
recognised by law and not possessed
of benefices or endowments of any
kind, is a fact of no force or relevancy
in a question of ecclesiastical history
or policy in a Church established and
endowed. But if it be in the Church
of Scotland that the liberty of election
in the people is said to have been observed
without interruption, we challenge
the supporters of this doctrine
in the present day to point out any
period, previous to the compilation of
The Second Book of Discipline, in
which patronage did not exist, and was
not acknowledged in this Church.
There is a distinct statement made
that it did not exist till the age of corruption;
and, to justify this statement,
there must he some record, there must
be some authority, to which we can be
referred for proof of the fact.
But if the challenge be declined, and
no attempt made to produce authority
in support of the statement contained
in The Second Book of Discipline, we
think there is abundant means to show
that that statement is historically false.
It is contradicted by the language of
the Act 1567, which reserves the ancient
right of patronage. It is contradicted
by the admission of the General
Assembly in 1565, already quoted,
that "the presentation of benefices
pertaines to the patrone." But the
proofs on this subject are both numerous
and direct. The oldest and most
venerable authority in Scottish law or
Scottish history, the Regiam Majestatem,
speaks of patronage as an
undoubted, ancient, and well-recognised
part of the ecclesiastical constitution:
— "Sed caveat sibi Patronus
laicus, quod vacante Ecclesiâ vel vicariâ,
presentet personam idoneam, in literaturâ
sufficientem, vitâ laudabili et
sane morigeratum, et quod presentet
illum infra quatuor menses, ne dilatio
ulterior suæ præsentationis præjudicare
sibi valeat."* And the same
book, in another place, states the necessity
of qualification (idoneitas) in the
presentee as the sole check on the
patron's absolute right.† It is sufficient
for our purpose thus to advert
to the antiquity of patronage and
its recognition in the law. Its origin
is ascribed to a very remote period
by the learned Selden.‡ So early as
the sixth century, we have traces of
its existence in the Roman law.§ Before
there was a church in Scotland,
the canon law had received the maxim
"Patrouum faciunt dos, ædificatio,
fundus," and till the Reformation the
canon law was the only law of the
Church of Scotland. But in the days
of Melville, it is impossible that such
ignorance as he exhibits, whether pretended
or real, on the subject of
Church History, could have been at
all common among the educated classes;
for Sir James Balfour of Pittendreich,
an eminent contemporary of
Melville's, devotes a chapter of his
"Practicks of the more ancient law
of Scotland,"॥ to the subject of "Advocatioun
and Patronage of Kirkis,"
every sentence of which goes to satisfy
the reader that he is treating of a
right which must have existed and
been recognised from the earliest period
in the law of Scotland. Sir Thomas
Craig, too, who was alive in 1578,
though his celebrated treatise had not
yet been published, gives the most
direct testimony to the same effect.¶
The result, then, of our examination
of the two Books of Discipline, seems
but little conducive to the support of
the principle of the Veto Act. John
Knox treats the unreasonable or unexplained
objections of the people with
* Regiam Majestatem, Lib. I. Chap. ii. § 3.
† Reg. Maj. III. xxxiii. 5.	‡ Selden on Tithes, chap. 6.
§ Nov. IX. tit.6. cap. 18.	 ॥ Balfour's Practicks, p. 501.
¶ Craig de Feudis, Lib. II.; Dieg. 8. § 37.
wonderfully little respect, in recommending
their removal by the compulsitor
of Church censures; and the inconsistency
of this rule with the profession
of a desire to place the election
of pastors absolutely in the hands of
the whole congregation, naturally excites
a suspicion, either that the First
Book is, in this matter at least, a compilation
as crude and ill-considered as
might be supposed from the haste with
which it was prepared; or, on the
other hand, that tile true purpose of
the early Reformers was to procure the
transference of patronage into their
own hands — a purpose which they
veiled, in the mean time, under the pretext
of giving a voice to the people,
and thus apparently liberalizing the
constitution of the Church. The Second
Book of Discipline, no doubt,
maintains the propriety of popular
election in unqualified terms. But
this is accompanied by an admission
of its incompatibility with patronage,
which nullifies the authority of The
Book the present argument; while
the historical inaccuracy of the statement
respecting the previous existence
of patronage in the Church, whether
arising from ignorance or design, obviously
renders it an unfit source from
which to extract evidence of the antiquity
or fundamental character of any
law, and tends, in no small degree, to
bring both the work itself and its
authors into disrepute.
Fourteen years elapsed between the
publication of the Second Book of
Discipline and the final settlement of
the Reformed Ecclesiastical Constitution
in 1592. In this interval, many
attempts were made to enhance the
influence both of the Church Courts
and of Congregations in the settlement
of ministers; and the uniform want of
success which attended these attempts,
shows the determined purpose of the
Sovereign and the Parliament to resist
the introduction of any element
which should interfere with the exercise
of the right of patronage. The
Act 1592, c.116, had specially in view
the numerous recent discussions on this
subject; and the Legislature doubtless
saw the necessity of fixing, by
some unambiguous enactment, the
limits of the Church's power in the
matter of collation. The Statute, accordingly,
in exact conformity with
the tenor of the communications between
the Queen and the General
Assembly in 1565, "ordainis all presentations
to benefices to be direct to
the particular presbyteries in all time
cumming, with full power to give colation
thereupon; and to put ordour to
all maters and causes ecclesiasticall
within their boundes, according to the
discipline of the Kirk: providing the
foresaid presbyteries be bound and
astricted to receive and admit quhatsumever
qualified minister presented
be his Majesty or laick patrones."
By this Act, therefore, the qualification
of the presentee is the sole restriction
on patronage — the single particular
in which the Church is privileged
to interfere. There is no
concession to the demand for popular
election, and still less is there any
recognition of a right in the people to
dissent, without cause shown, from
the nomination of the patron.
Our conclusion then is, that in the
Reformed Church of Scotland, in the
sixteenth century, there existed no
fundamental law which authorized the
rejection of a presentee on the ground
of the dissent of a majority, or any
part of the people, without objections
stated and verified. We have already,
we hope, sufficiently demonstrated the
absence of any such law or principle
in the polity of the Church before the
Reformation; and the history of the
seventeenth and eighteenth centuries
may, in the present question, be
dismissed with a very few remarks.
For the present, however, we must
pause, and reserve for another occasion
our observations on the later
periods of the history of the Church,
as well as the discussion of the more
practical and important part of this
great subject.