Chapters from the history of the Free church of Scotland

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I NEC^X^TAMEN

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Contents

CHAP.

I. WHAT LED Tf) THE DISRUn'ION

III. RECONSTRUCTING THE FRAMEWORK •

Chapter I

"ITrHEN" the second quarter of the present century was ' ^ beginning, signs of the stirrings of a new life appeared in this country almost everywhere.

These were manifested, for example, in the keen political agitation which sprang up. The people, dissatisfied with seeing power and privilege confined to the few, became clamorous for an extension of the suffrage, and Parliament was obliged to meet the demand by passing the Reform Bill of 1832. A historian, referring to the excited state of feeling which then prevailed, says that the nation had never before been so much in earnest since the days of the Long Parliament.

It was natural that the Churches should come to feel the swell of this tide. It was now that the Oxford Movement began which has told so influentially on the Church of England, and it was about the same time that that remarkable wakening up in Scotland took place which has affected so sensibly its subsequent history.

The new era here it is customary to trace almost wholly to spiritual causes — to the conversion of Chalmers, the ministry of Dr. Andrew Thomson, the writings of Dr. M'Crie, and the evangelical revival which was the fruit of their labours. But it would be quite an oversight to take no account of the electric condition of the age, and of the strength of the currents that were then running in favour of the recognition of popular rights. It is undoubtedly in considerable measure to these currents that we are to ascribe the beginnings of that ecclesiastical agitation which ultimately culminated in the formation of the Free Church.

From the Eeformatiou, the Scottish people had been taught to believe that they were entitled to have some say in the choice of their ministers. When Moderatism, however, became dominant, these rights were disregarded, and a very unsatisfactory state of things was the result. Congregations came either passively to acquiesce in the appointments made by patrons, no matter how unpalatable they were, or they sought relief by quietly seceding from the Establishment. But now a time had arrived when this was no longer to be submitted to. The popular will was discovered to be a more potential force than had been supposed in determining the character of public institutions, and demands were made requiring reforms in the Church as well as in the State.

Dr. Andrew Thomson at once took a radical view of the situation, and so early as 1825 insisted on the necessity for abolishing patronage altogether. But the Church was so little prepared then to go that length, that when in 1832 — the year of the Keform Bill — a proposal was made in the General Assembly to consider " whether the call might not be restored to its constitutional and salutary efficiency," the reasonableness of such a motion was so little recognised that it was not allowed even to be sent to a Committee.

It is evident that at that time, as afterwards, the Moderate party imagined that they could stem the tide which had begun to flow, by opposing all changes ; but in doing so they simply exhibited one of their most distinguishing characteristics. In some quarters they are credited with possessing a great deal of worldly wisdom. But the truth is that their wisdom is of that sort which sees clearly only within a very limited circle. They have always shown themselves to be incapable of taking a comprehensive view of things, or of estimating the power of forces other than those that can be seen. As matters then stood, it was no more possible to suppress the determination of the people to have more influence in the Church, than it was to arrest the popular movement for some reform in the State. The time had come when more or less of " acceptability " behoved to be recognised as an indispensable condition in the formation of the pastoral tie. And prudence and policy (to speak of nothing higher) were unmistakably with the Evangelicals when they addressed themselves to the business of at least limitinof the powers of the lay patron.

But the difficulty was to find the method of readjustment to which the minimum of objection could be taken.

Nominally the " call " was still maintained. Before any man could be ordained, he needed to be able to show not only a presentation by a patron, but also an invitation from the people among whom he was to settle. This had become a mere formality, and nothing was really considered but the will of the patron. But the call might have been vitalised, and the Church might have decreed that no settlement should take place where a clear majority of the communicants did not express a distinct wish for it. This was regarded, however, to begin with, as too advanced a step, and a more modest and moderate proposal was made — to the effect that a presentation should be set aside only when a majority of the male heads of families in a parish (all of them being communicants) came forward to express their dissent from it. In this scheme there was nothing extreme. All the communicants were not allowed a voice in the matter, but only the male communicants, and not all of these either ; standing was conceded to none of them who were not heads of families. Besides, they were asked not to come forward and to express their hearty concurrence in a presentation, but simply to say if they viewed it with positive aversion.

An Act embodying this arrangement was introduced in the Assembly of 1833 by Lord Moncreiff, but it was then defeated. In the following year, however, it was again proposed by Dr. Chalmers, and carried. And its suitableness to the time was at once demonstrated. The scandal of intrusions into parishes was stopped — the interest of the people in the Church was increased — and the process of secession was arrested. But ere very long the sky became suddenly overcast. In connection with a vacancy which had occurred at Auchterarder, the presentee named by the patron was set aside by the Presbytery, because with only two exceptions the whole of the male heads of families in the parish objected to his settlement among them. The right of the Presbytery to do that was called in question, the competency of the " Veto Act " (as it was called) was disputed, and the Civil Courts were appealed to, to say whether the General Assembly was entitled to decree as it had done.

Then began a " Conflict " which raged for a number of years, and in connection with which other questions came to be discussed of far graver interest than that of the place of the people in the Church.

What conclusions the Civil Courts arrived at, after reviewing the whole situation, have been given with, one might say, almost brutal frankness, in a comparatively recent work edited by Professor Story.^ The section of that work which deals with the " Helation of the Church to the Law and to the State," was written by Dr. Macgeorge, a recognised authority on that particular subject ; and the following is his summary of the judgments pronounced first by the Court of Session and afterwards by the House of Lords : —

" It was authoritatively settled," he says —

" 1. That patronage was a civil right which it was within the province of the Civil Court to deal with and to vindicate.

" 2. That Presbyteries were under an obligation of statute law to take on trials a presentee of a patron with a view to his induction if found qualified, and this was a civil ministerial duty enforceable by civil law.

" 3. That it was a ministerial civil duty incumbent on Presbyteries to fill up vacancies in parishes according to law, and that this duty could not be evaded by any attempt to separate the spiritual office from the temporalities.

" 4. That the Veto Act, as interfering with these civil rights and obligations, was outwith the powers and jurisdiction of the Church, and illegal.

"And 5. That the refusal of the Church Courts to fulfil a statutory duty subjected them to damages."

It seems almost incredible nowadays that anyone could suppose that the Church of Scotland might have settled down content under such conclusions ; but to the author of the summary now given, the conclusions indicated seem to have been entirely satisfactory, and what is more strange, his arguments in defence of them have been pronounced to be " unanswerable " in liigli quarters within the present Established Church.

The Auchterarder Case, he held, lay in a nutshell. " The whole question," he said, " arose from the refusal of the

^ The Church of Scotland, Past and Present. London : William Mackenzie.

Presbytery to adopt the introductory step of taking the presentee on trials." It was true, in a sense ; but within that question lay another touching the heart of the whole controversy, namely, this : " Was the element of acceptability to be considered or no ? " In the opinion of the Moderate party, that was a point of no importance ; or rather, it was one in regard to which they had made up their minds. The will of the people was not to be considered at all. On that subject Dr. Macgeorge spoke quite explicitly ; for here, according to him, was the effect of the Veto Act : " The whole matter of the settlement of a parish minister was then for the first time taken out of the hands of the Church and committed to cm irresponsible hody of laymen." " The irresponsible body of laymen," it will be recollected, were the male heads of families, being communicants, who represented the congregations to be ministered to ; and surely no language could more significantly than this express the scorn felt by the writer for the principle of popular election.

The reason why the Presbytery did not proceed to take the presentee on trials was that his unacceptability had been already proclaimed. This was held by them to be at the very outset an insuperable hindrance to his ordination, and to discover afterwards that he had Greek and Hebrew enough would have been nothing to the purpose. To Dr. Macgeorge and those associated with him the attitude thus assumed was an intolerable one, but it was so simply because they had no sympathy with the position which the Church felt itself constrained to take up. It had finally adopted the principle of Non- Intrusion, and it was not to be driven to surrender it by any consideration whatever.

When the Auchterarder decisions were made known ^ indeed, it felt constrained to survey the situation afresh, so as to decide upon its course in future. It had come to the parting of two ways. On the one hand if it acquiesced in the judgments which had pronounced it to be legal to force men into parishes against the will of the people, it would put back the hands on its dial-plate and undo the work of the reformation that had been begun ; while, on the other hand, if it persevered with the " Forward Movement " which had commenced so auspiciously, it would expose itself to collisions with the Civil Courts, and run risks the seriousness of which could only be vaguely apprehended.

There were, however, three considerations which seemed to shut it up to the conclusion to which it came to go on.

One was that to which we have already referred the character of the times. The era of the democracy had begun. The people were asserting their rights in the State in a manner which compelled attention, and it seemed absurd to suppose that in such a Church as that of Scotland, the male heads of families being communicants would ever again consent to be regarded in connection with the election of their parish ministers as a mere " irresponsible body of laymen."

Another significant circumstance was, that the convictions current on the subject of popular election had been undergoing a suggestive change. At first, the belief that the people ought to be consulted in the choice of their ministers was with many thought of as simply a reasonable thing. Men, it was argued, have a place of influence in political, and why not also in ecclesiastical connections ? But as time went on, feelings deepened. And at the date referred to, popular election was regarded as of the nature of a right. To take part in the choice of a minister was then thought of not simply as a privilege — it was a duty. And to deprive communicants of the qualification was to take away something which " appertained " to them. Conscience, therefore, being involved in this way, the question was not one to be settled l)y a Law Court.

Further, however, there was a third thing of importance. The new powers which had been conceded to the people had immensely quickened their interest in the Church and in its work. Experience, in short, had come to give an emphatic sanction to the Act. And it was clearly seen that to return to the position which was formerly occupied would imply an arrest, more or less, on tlie new enterprises which had been entered on.

Here, then, already a deadlock had been reached. Even on the point of the settlement of ministers the Church could not conscientiously or safely go back. The Civil Courts insisted that Presbyteries were bound, under pain of damages, to take on trials whomsoever a patron chose to name, and if they found his scholarship satisfactory, to induct him into a parish no matter although all the people objected to him. In other words. Intrusion was pronounced to be strictly legal, ■ — and peace was made possible only under conditions which involved the maintenance of a Moderatism from whose blighting influence the Church was only beginning to recover, and the encouragement of secessions by which the Establishment was being fatally undermined.

Under the impulse of the new life which, as has been said, was infused into it, the Church began missions to the heathen and in the Colonies, it took steps toward commencing work among the Jews, and it covered the whole land at home with extension churches. In the belief, too, that it had a free hand in spiritual matters, it addressed itself to the perfecting of its home machinery. As a first step, it had given effect to the constitutional principle of making acceptability to the people an indispensable condition in the formation of the pastoral tie ; and further, assuming that it was within its right to say who should sit in its own Courts, it invited the ministers of the new congregations which had been formed to constitute kirk sessions in conformity with the Presbyterian system, and to sit in these, and in the Superior Judicatories.

In proceeding, however, to take these steps, she w^as suddenly informed that she was exceeding her powers. The Civil Courts imperiously intervened, and not only ordered the induction of all otherwise qualified presentees, whatever might be thought about them by the people among whom they were to labour, but pronounced to be of no legal value or effect the acts of all the Presbyteries into which ministers, other than parochial, had been admitted.

The claims thus advanced startled the Church, but the question which was now raised was not at all a new one, and the crisis was met with perfect intelligence. The conclusion had been definitely come to, that the intrusion of a minister on a reclaiming congregation could neither be for the glory of God nor for the interest of religion, and the demand made that that should be assented to was refused. The Church at the same time declined to recognise the right of the State to interdict the carrying out, throughout all its bounds, of the Presbyterian system, the attitude thus taken up being assumed on the principle that Christ has conferred certain powers of self - government on His Church, and that these behove to be exercised with a conscientious regard to His will.

The resistance thus offered to the decrees of the civil judges was resented, and a violent conflict was the consequence. Not only did the Courts of Law continue to maintain the position they had taken up, but they proceeded to fresh acts of aggression into what was regarded as the spiritual domain. They drew a cordon round a particular district of country, and forbade any but certain ministers to preach the gospel within it. They interposed in processes of discipline, and directed lo WHAT LED TO THE DISRUPTION

procedure in them to be stopped. They ordered Presbyteries, under a threat of damages, to ordain and to refuse to ordain men to the ministry. And they treated as null and void the most solenm Acts of Assemblies.

Of course, no Scottish Civil Court would, in so many words and in the abstract, claim an inherent right to do all these things. The assaults made on the independence of the Church were of the nature of reprisals. The Church, in the judgment of the Court of Session, was intruding into the sphere of the State, and that Court sought to vindicate the authority of the State by carrying the war, as it were, into the enemy's country. It was perilous policy to pursue, because it can never be good in the long run for a litigant to take the law into his own hands. But, besides, it was needless ; other methods of punishing the offenders were open, apart from those resorted to. The Church never denied tlie riglit of the State to take back its endowments if it did not think they were being properly employed; and no objection, in principle, would have been offered if, for example, to Mr. Edward of Marnoch or to Mr. Young of Auchtcrarder had been assigned tlie stipends of their respective parishes. But it was different when the Court of Session ordered the I'resbytery of Strathbogie to proceed to the induction of Mr. Edward, and insisted on the clerical members of that Presbytery being regarded as ministers of the Church of Scotland after they had been deposed by the General Assembly. The conclusion which seemed to l)e reached was that the Church had no independence, but was l)ound to do whatever the Civil Courts chose to direct.

This description of the situation, however, was not accepted by all as strictly correct. What the civil authorities said to the Church, it was argued, is this : " You liave a domain if you will only keep to it, and wlien we resort to pressure in tlie way we have done, it is sini])ly to prevent you from

IVHAT LED TO THE DISRUPTION li

Irausgressing the limits wliicli luave been set to you. Po not exceed your powers, and you will be strenuously upheld in the exercise of them."

But here a dilhculty presented itself — a crucial dilliculty. "What are tlie limits referred to ? and when any question arises as to their extent, who is to decide between the contending parties ?

The answer was given in an exceedingly plain and eN])licit way by Sir James (^iraham. This is what he said : —

" Whether a i)articular matter in dispute is so entirely spiritual as to fall exclusively within the jurisdiction of the Church Courts, may often be a difhcult question ; but it is a ([uestion of law, and cpiestions of law are decided in Courts of Taw, and questions of jurisdiction are also ended there — all subject to an appeal to the House of Lords."

Nothing could be simpler. The Church and the State have each a ])rovince, and witliin their respective spheres each must rule. lUil, it is admitted, there may arise now and again questions of jurisdiction. What are the limits of the State's dominion ? When may it be said lo keep to its ilomain, or unwarrantably to go beyond it ? That is a nuitter easy of determination, we were told. Above both ('hurch and State alike is a serene tribunal — the Court of Session, supplemented by the House of Lords — whose business it is to look at all legal didiculties in a dispassionate spirit, and to its deliverances instant submission must be rendered.

This theory commended itself as self-evidently just and reasonable to the politicians of the day and to many of the lawyers, l»ut it is dillicult to understand how it could have given satisfaction to any intelligent Tresbyterian, and especially how it could have been accepted — as it continues to be — by the Established Church of Scotland.

One objection to it lies at the threshold. It is customary to speak of the union between Church and State as being based upon a contract. The term does not sound very apposite when one thinks of the manner in which the Act of Queen Anne imposing Patronage was passed. To that Act the Church offered a unanimous opposition, and it was driven through Parliament not with its concurrence, but in the face of its strenuous dissent. Let us suppose, however, that there was a contract. In that case it is surely not too much to expect that the ordinary laws respecting contracts will be observed by both parties. If, for instance, a difference of opinion should arise as to its terms, it would not be reasonable to compel one of the parties to submit the quarrel to the arbitration of a Board composed entirely of representatives from the other side. But that is precisely what the Church is asked to do when it is required to submit the question of its jurisdiction to the Courts of Law. It is notorious that the qualifications of the men who sit in these Courts are civil and not spiritual, and that they hold their appointments from the State only. In determining points of jurisdiction, religious as well as political considerations require to be taken into account, and no provision has ever been made that there shall be found on the Bench any capacity to estimate these. If the subjects involved were of comparatively little moment, or if there was little or no likelihood of serious mistakes being made, the Church might, conceivably, have acquiesced in the constitution of such a lopsided Court of Appeal. But the case looks different when we remember that the questions submitted for judgment may often concern, in a vital way, the honour of the King, and also when we call to mind the utterances which have once and again come from the lips of the highest legal authorities.

One of these utterances it may be worth while to reproduce here. It will help to show what the Church may lay its account with bearing, if it assents to surrender to the State that supreme right of review to which it lays claim. Here is what was said by Lord President Hope : —

" That our Saviour is the Head of the Kirk of Scotland in any temporal or legislative or judicial sense, is a position which I can signify by no other name than absurdity. The Parliament is the head of the Church, from whose Acts, and from whose Acts alone, it exists as the National Church, and from which alone it derives all its powers. Who," he added, " gave the Church Courts any jurisdiction ? The law, and that alone, gave it, and the law defines what it has so given."

Any Church might well have trembled to commit the keeping of its liberties to Courts in which such sentiments were received with satisfaction.

But these and like utterances might conceivably be set aside as exceptional and extraordinary. Few judges, it may be said, will now talk in this style ; and what is valuable and trustworthy in the Courts of Appeal is that they form, as has been said, a serene tribunal, which rises superior to the passions and prejudices of common life, and is able to look at whatever is brought under its notice in a calm, candid, and dispassionate spirit.

But, alas ! we can no longer maintain this beautiful ideal conception of the Court of Session. One of the judges themselves has spoken. He has taken us behind the scenes, and the representation he gives of their state of feeling has disenchanted us. All through the Conflict, Lord Cockburn was writing down daily in his Journal his impressions of what was taking place, and some of his entries are exceedingly significant.

" The majority " [of the law lords], he says, " made it apparent that their legal opinions were affected by their view of the expediency of the Veto Act. They wished to preserve patronage."

In other words, the members of the Court of Appeal — the most of them — were privately persuaded that the demand for popular election was improper, and they were swayed accordingly. That is to say, they had their private prejudices which warped their view of the situation, and so far affected the value of their judgment.

Further, however, what Lord Cockburn has to say about the spirit of his brethren is rather fitted to shake our confidence in the serenity of the Court.

" On looking back on the matter," says he, " what I am chiefly sorry for is the Court of Session. The mere purity of the judges it would be ludicrous to doubt. They all delivered what each, after due inquiry, honestly believed to be the law ; but passion sometimes invades the Bench, and when it does, it obstructs the discovery of truth as effectually as partiality can. The majority of the Court may have been right at first and to a certain extent, but they soon got rabid, in so much that there seemed to be no feeling except that of pleasure at windno- wild Churchmen."

" Passion sometimes invades the Bench." " They soon got rabid." So writes one who was in the best possible position for knowing the truth. It is a melancholy picture, but surely there is another thing to be said about it. It is a sugricstivc picture. The Court of Session, when acting within its own sphere, is worthy of all honour. But when one thinks of the light in which it regards the Church — as a body which has no jurisdiction except that which the State may choose to give to it, and when one recalls the treatment to which it subjected the Evangelicals when they were fighting for what they believed the crown rights of the Eedeemer (it had no feeling save that of pleasure at winging wild Churchmen) — one may well wonder that any earnest man should be willing to commit to it the supreme authority to redd the marches between the secular and the sacred.

That is the arrangement, however, to which the present Established Church appears to have given its assent. The State is saying to it: "You have undoubtedly a province within which you will have all the countenance and all the support which we can give you. But, of course, if any question should ever arise as to the limits of that province, the answer to it must be given by the Court of Session — subject to an appeal to the House of Lords." Experience is a great teacher. It is not likely that a serious collision will occur soon. Both parties will do their best to avoid the awakening of a new controversy. But before 1843 no truce was even proposed. The Conflict was acute. The Civil Courts were requiring an immediate and a practical acceptance of positions like these : that it is not within the competency of the Church to regulate as it thinks right the formation of the pastoral tie, or to say who should sit in its own Courts, or to ordain and depose men without leave given ; and to secure its liberty it saw no course open to it but that of surrendering all the benefits of an Establishment and taking up an independent position outside.

Of course this step was not one which was taken lightly. The most earnest and persevering efforts were made to persuade the Legislature to interfere by giving relief from the law as a majority of the judges were interpreting it. But the Government of the day turned a deaf ear to all the appeals that were addressed to it. It unfortunately allowed itself to believe that no serious crisis was being reached, and that all the threatened troubles would be overcome by a display of firmness. By and by the leading advocates of this policy were brought to see their mistake ; and Lord Aberdeen and Sir James Graham were profuse in their expressions of regret that they had had any hand in bringing about the catastrophe.

But at the moment a spirit of infatuation prevailed, and a great body of earnest ministers and people were compelled to seek freedom for their Church by severing their connection with the State altogether.

CHAPTER ir

"lirHEN" the 18th of May 1843 was approaching, a question of some interest and importance presented itself for consideration, namely, that of how the contemplated separation from the State could best be carried into effect. It was believed that a majority of the members elected to the General Assembly were on the Evangelical side, and it seemed not unreasonable to propose that the act of disruption should be decided upon by a vote of the representative House.