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ment 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 reasonable
ness 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 Auchter. arder, 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 these 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 sta tutes, 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 of the said Robert Young, and have reto refuse, to take trial of the qualifications jected 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 can.
not 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 circumstance 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 intrusionif 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 suffici ently 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 hopelessfull, unqualified, 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? 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 alt 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
*Dr Chalmers's Resolution.
thas 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 hast "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
"The Present Position of the Church of Scotland Explained and Vindicated." By a Lay Member of the Church.
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 indigna. tion, 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, confess edly 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 1884, 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,-t
"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 nega tived 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 question 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 grounds 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.