See = IS ISIS ET 3 3 A ae (a ree } Theological Seminary, | PRINCETON, N. J. | 7a KDC 965 .156 ) Innes, A. Taylor 1833- 1914) The law of creeds in Scotland ap pe ty Crs , 2 Fe eT a aly vs eae t a : ne at P=. i ne | Re a o Be hag THE LAW OF CREEDS IN SCOTLAND THE LAW OF CREEDS IN SCOTLAND A TREATISE ON THE LEGAL RELATION OF CHURCHES IN SCOTLAND ESTABLISHED AND NOT ESTABLISHED, TO THEIR DOCTRINAL CONFESSIONS BY ALEXANDER TAYLOR INNES, M.A. SOLICITOR BEFORE THE SUPREME COURTS OF SCOTLAND, AND MEMBER OF THE FACULTY OF PROCURATORS OF GLASGOW WILLIAM BLACKWOOD AND SONS EDINBURGH AND LONDON MDCCCLXVII ae ory re Wee & oe | ee Be 4 er oe aw ee ee i! ‘a peat ae ae "i rie “a oo eat PREFAC-E. Tuts is not a book of Church law, but of the civil law of Scotland ; and of that law only in so far as it affects or controls Churches in the matter of their creed. Yet the subject is not a small or poor one. Hitherto Churches have made much of their doctrines, and Scot- tish Churches above others. And law has had much to do with both. Exactly three hundred years have passed since the Reformed Church was acknowledged by the nation in 1567; and our immobility in respect of doctrine during these centuries has been the subject of much unreason- able self-complacency, and much undeserved reproach. But the past is past. That an absolute immobility is to reign in the future, is what few wise men desire, and what no man, whether wise or foolish, expects. And if we are now entering upon a period of flux and change, it may be a useful thing for theologians, or for those who believe in a higher guidance than that of theology, to have in an accessible form the legal facts and doc- vl PREFACE. trines — statutes, principles, and precedents — which limit or regulate from without the power of recon- struction. That the law of Scotland has had much to do with the Creed of the Established Church is well known; and the first part of the volume is devoted to this subject. That it has, or may have, a very serious bearing upon the connection even of Non-established Churches with their creeds, has been less generally considered; and the latter half of this publication is believed to be the first attempt to present this difficult subject in one view. The Author thought that it might be appropriate to consider these cognate questions together; and in executing his task he has found that to do so is even necessary. The second part of the volume would be unintelligible without the historical founda- tion of the first; and the first part would be incom- plete without the deeper questions touched upon in the second. On both sides, it is hoped that the mere compilation may be found useful to lawyers and the public. To each chapter is added an Appendix—of Statutes, Acts of Assembly, Articles of Faith, Legal Decisions, Judges’ Speeches, and illustrative documents generally. By these even an unprofessional reader may test most of the statements in the text ; and lawyers will be able to study the points more at large in the authorised Reports quoted or referred to. An Index of Subjects, of Statutes, and of Cases is added. PREFACE. Vil In presenting the book to his profession, the Author trusts that its many imperfections of treatment may be atoned for by the endeavour to collect into one view some useful but scattered law, and by the honest desire to lay bare important questions with which the Judges and the Bar of Scotland must yet have to deal. But the subject branches on both sides into theology and history, regions in which he feels him- self even more deficient than in the matter of law. To the many accomplished students of Scottish his- tory he has to apologise for too recent an acquain- tance with a field now so admirably laboured. In theology every legal writer is compelled to deal with a subject of inexhaustible freshness and life in a merely ~ verbal way, and to handle the heart of things with- out tenderness, and therefore without truth. But it would have been desirable that one approaching a science of so majestic a range should at least have had some scientific acquaintance with it, or some spe- cial training. Failing this, all that can be done is to put the necessary questions, and leave it to theologians to answer them. In the prosecution of his work the Author has received courtesies and kindnesses from so many quarters that the amount of his indebtedness must prevent any detailed or discriminating acknowledg- ment of it. He hopes to remember what he does not record. But among divines he must expressly return thanks to Principal Candlish, Dean Ramsay, Vill PREFACE. and Mr Charteris; who, while none of them is re- sponsible for any position or statement contained in the book, have in different ways laid the Author under great obligations. Guascow, 17 Newton TERRACE, May 1, 1867. GiOuN Teh Ne res: CHAPTER I. THE SCOTTISH CONFESSION. 1560 AND 1567. PAGE Reasons for treating the subject historically, . 1 Legal history of creed must commence with the Batbbunbion! : A **The Congregation” and its creed, . A - é : 6 The Parliament of 1560, : 8 Preparation and revision of the Soottich Contemstare , : 4 9 Its public reading, and adoption. August 1560, : , ‘ 1] Not imposed by the Church on the State, A : : : 14 Statutes of 1560, : : . : : 15 Period of Mary’s reign, from 1560 to 1567, . 16 Act 1567 anent the True and Holy Kirk, perabiiorad it by velerenrs to the Confession of 1560, .. : rs ; 17 Attitude of the early Reformed peas to its areed : : : 19 Creed not imposed by the State upon the Church, . . . 20, 24 Assemblies from 1560 to 1567, . - ; - : A 22 Private judgment in 1560, : : ; A ; ; 25 Unity of the Creed of 1560, .. : ; : F ‘ 28 Subscription to the Creed of 1560, : ; : - ; 29 Statute 1572 ordering subscription, . ‘ ; 30 Jurisdiction of the Church? in matters of creed and hereays - 3 33 Subsequent legislation and the Covenants, .. - : : 36 Episcopalian Confession of 1616, ’ ‘ : : ; 38 APPENDIX— Note A. The Scottish Confession, as ratified in 1560, . , 39 ;, B. The Acts of 1560 as re-enacted in 1567, 45 », ©. Acts Declaring the true Church, and as to the King’ 8 Oath 47 », D. Acts of 1572 (Subscription to creed), . 4 49 », E. Acts of 1579 (jurisdiction in creed), . 50 », F. Acts ratifying the Presbyterian order of the TS 1592, 51 », G. Correspondence between the General Assembly and Queen Mary in 1565, . : : 54 », H. Edward Irving upon the Scottish Gan neion: , , 55 x CONTENTS. CHAPTER Raul THE WESTMINSTER CONFESSION. 1647 AND 1690. The change of creed, : The Westminster Assembly and Rimenee tates from Bestlaget: Preparation of the Confession, . The doctrine of the Westminster Cantession as as Breeie Adoption of it by the Assembly 1647, Differences between Scottish Confession and Westutiinter Covteamiont Subscription before Revolution, The Restoration period, The Revolution of 1688, and Act ratifying the Confession 2690, Cc. 5), Construction of Act 1690, c. 5, . : Act of Assembly 1647 ignored by it, ; Introduction of present subscription to Confession, King William’s formula, . Opposition of the Church, : Act for Settling the Quiet and Peace of the Churel (orderan subscription, da Breach between the King and the Church averted, Formula of 1694 (signed now by elders), Subsequent ecclesiastical legislation on subscription, Enactment and formule of 1711, Circumstances in which they were passed, Questions raised with regard to their validity, APPENDIX— Note A. The Westminster Confession of Faith, », B. Act of the General Assembly approving the Goniecaae Faith, 27th August 1647, of », ©. Act Ratifying the Confession of Faith, and Settling the Presbyterian Church Government (Act 1690, c. 5), », D. Documents of 1690 (Minutes of Parliament, and King William’s Letter and Remarks upon Act 1690, ec. 5), », E. Questions and formula appointed by the Assembly of 17 and at present in use in the Established Church Scotland for ministers and probationers, 101 i of 103 », F. Controversies as to creed and subscription in the Cham of Scotland in the eighteenth century, », G. Acts of Assembly confirming subscription of 1711, CHAPTER III. THE TREATY OF UNION, AND THE DEFINITION OF 1843. Bearing of the Union with England upon Church principles, . Act limiting the powers of the Commissioners for Union, Act of Security, 106 113 115 116 116-118 CONTENTS. Its references to creed, Declared fundamental and mialeeeabice Alleged violations of it—viz., . (a) Toleration Act,. (6) Act restoring patronage, ; (c) Act abolishing the university tests, How far is the Treaty of Union unalterable? . How far is it pleadable, and by Mig 2 Its bearing upon creed, . The question of Church ndependaoa Patronage and the controversy of 1843, Bearing of the decisions of 1843 on the matter of Pe se 1. The relation of the Church to the State, 2. The authority of statute over the Church, 3. Direct references to creed in the judgments, : Rejoinder as to creed in the Catechism of the Free Church, . Final decision as to Church independence, and definition of parties, Influence of the new position of the Established Church on the ques- tion of creed, APPENDIX— Xl My, 118 119 119 120 122 124 127 129, 130 130 131-133 134-140 140-142 142-148 149, 150 151-153 Note A. Act for Securing the Protestant Religion and Presbyterian Church Government (as incorporated into the Act Rati- fying and Approving the Treaty of Union, of date 16th January 1707), », B. University tests. Professor Blaskis ood the Presbytery of Aberdeen, », C. Tests in parochial pohoolss », D. The Claim of Right of 1842, and Protest ‘and Act of Separa- tion of 1843, 155 158 160 162 ;, E. The House of Lords’ fad enacten in the Micktertvdel cases, 173 » . List of decisions by the Court of Session before May 1843, in reference to the claims of the Church of Scotland, of its General Assembly, or inferior courts, CHAPTER IV. and 182 THE PRESENT LEGAL RELATION OF THE ESTABLISHED CHURCH TO ITS CREED. I. Legislative power as to creed, Power of directly diminishing or aint to ore Power of indirect legislation as to creed, ° Limited by statute, Limited by the immemorial Saatieut of i Church ? 2 The Barrier Act and the seat of Church power, IL. Judicial power as to creed reaffirmed since 1843, Case of Sturrock v. Greig on jurisdiction of ecclesiastical courts, Limitations of their privilege, 187 187-191 191 192 192-196 196-199 200 201 203 XU CONTENTS. Case of Lockhart v. the Presbytery of Deer, . ; i J we206 Results of these and other cases, : : ; : 206-208 Comparison with English principle, . , : ; ‘ 208 Questions in administration of creed, . : : : . 210 Who may originate a process of heresy, ‘ ‘ ; : 211 Must the Church court entertain it? . : : ; 4 212 Judgment of relevancy in such a process, 4 3 ; . 213 Protection of judgment of relevancy, . 4 f 5 : 215 Definitions of heresy and scandal, : : : ; : 216 Subscription, . A : 5 ‘ é : : 217 APPENDIX— Note A. Opinions on the legislative power of the Church, ‘ 219 », B. Barrier Act and its predecessors, : 222 », C. Opinions on the present judicial power of the Established Church, ; , : ; , 223 zs Case of Sturrock v. Greig, , : 223 2. Case of Lockhart v. the Preahy tary’ of Dee ‘ 231 rey ABD ecw of the English Privy Council in cases of doctrine and heresy, . 5 . : : : 234 1. The Gorham case, _. ; : : : 234 2. Mr Heath’s case, : : ‘ . 238 3. The ‘Essays and Reviews’ case, . : 239 An Act for the ministers of the Church to be of sound religion (13 Eliz., c. 12), : : : ; 240 CHAPTER V. THE LEGAL THEORY OF NON-ESTABLISHED CHURCHES. Non-established Churches originally not tolerated or recognised by our law, : : : Z A 243 The Episcopal Coane in Resi. : : : ; : 244 The Reformed Presbyterian Church, . - . : : 245 The Secession Church, . 4 : oh. 2 ‘ : 245 The Relief Church, : ; 247 Relation of the Secession to tie Phar pera in the Establishment, 247-249 Principles on which the Courts at first dealt with dissenting cases, 249-251 Theory of Churches founded on contract, 5 é : : 252 Case of Dunbar v. Skinner, : : : ; 252-254 The Cardross case, : : : 3 , : : 254 First judgment, . F ys : : » : 256 Second judgment, : : : Z 2 257 Third judgment and premature dernination! : ° : : 258 Jurisdiction of non-established Churches, : . 259-263 Constitutional questions as to non-established Churches, 3 264-266 Case of Forbes v. the Synod of the Scottish Episcopal Church, : 266 Difference of opinion on the Scottish Bench as to the right of the Court to reduce Canons, and House of Lords’ decision, . : 268-272 CONTENTS. * xu APPENDIX— Note A. Churches and the doctrine of Contract, 273 », 3B. M. Renan on the Christian Church idee the Hanan faye 275 », C. The Scottish Toleration Act, . - , a 277 », D. The case of Dunbar v. Skinner, . : , 281 », E. The Cardross case—first judgment, , : ; 284 », F. The Cardross case—second judgment, . : : 288 », G. The Cardross case—third judgment, 2 298 »» H. Rev. Mr Forbes v. the Scottish Episcopal Syitod! 1866, 303 POSS i Do. Decision by the House of Lords, 1867, 313 CHAPTER VI. QUESTIONS OF PROPERTY OF NON-ESTABLISHED CHURCHES IN RELATION TO CREEDS. Necessary often to inquire into creeds in order to decide questions of property, . ; ° : : 323 Church property in Scotland held:t in trust ; : : , 325 By local trustees, : : ; : : 325 Early cases on Church property, ; ; ; ; - 326 Given then to the majority in cases of schism, ‘ : : 327 Leading case of Craigdallie v. Aikman, : ‘ F 328 First judgment—property given to majority of bonteibutors, : : 329 Second judgment—property given to those adhering to judicatories, . 331 Whole principle changed by Lord Eldon’s judgment in 1813, . : 333 Terms of the judgment—property held for the principles or mea fn 335-339 Result of Craigdallie case, : ; 341 Exposition of Lord Eldon’s principle by Lord Meadowbank i in Camp- beltown case in 1837, . 343-345 Contrary exposition of it by the Lord 7 ustice- Clerk Hope i in 1850, . 345 Property follows not the judicatories, but the congregation and its principles, . : 346 Right of doctrinal deviation i in the Raedorn: or in ‘the Ghareh: 347-349 Second Campbeltown case in 1839, : : : 349 Lord Moncreiff and the Second Division on pesentinls and non-essen- tials within the Confession of Faith, ; ° ; 350-353 English cases 6f doctrinal deviation, . - 353-356 The four leading cases on the law of Church eee in Scotland, . 356 Questions in the case of Union of separate Churches, . F ; 357 Kirkintilloch case, : : ; : ; i : 357 Thurso case, ; : : - ; : ‘ 359 Results to be apprehended, : i : ; 360 Rules already laid down in cases of property, : } : ; 362 Carnoustie case, , a pe P : : 363 XIV CONTENTS. APPENDIX— Note A. The Campbeltown case— 1. Galbraith v. Smith, 1837, . : é ; 365 2. Smith v. Galbraith, 1839, . é : . 369 ,, 3B. The Kirkintilloch case, 1850, _ . : : ‘ 375 », C. The Thurso case, 1829, . c 398 », D. Cases of property and creed in the iach of Bngland ‘and Ireland, A : - 405 », EH. American ew on the platen of ‘Chusshee to creeds, . 410 », F. Scheme of the divisions of the Presbyterian Church in Scotland since 1688, . ; ; : 418 CHAPTER VII. THE POSITION ASSUMED BY NON-ESTABLISHED CHURCHES IN SCOTLAND IN REFERENCE TO THEIR CREEDS. What is their attitude to civillaw? . ; é : é 420 I. Church Trust and Tenures. The Act 13 Vict., c. 13, giving continuity to pees trusts, : 421 The Free Church Model Trust-Deed, . . F 423 Its provisions, qualifications, and reeales j : 426 The United Presbyterian Church Model tare Decist ; ‘ 427 Titles of other Presbyterian bodies, . F 4 : : 429 Titles of the Roman Catholic Church, . : ; : : 430 Titles of the Scottish Episcopal Church, E A j F 432 Titles of Congregational Churches, . . : : ; 433 II. Declarations by Non-Established Churches as to their relation to their creed. The Free Church. Acts of 1846 and 1851, .«. : 3 435-437 The United Presbyterian Church Union in 1847, ; : 438 The Scottish Episcopal Church. Its change of creed in 1792 and 1804, 439 IIL. The right to change a Confession of Faith. Do they claim such aright? . - 440 Moderator’s address to Free Church Ganerit Neeembly of 1866, - 441 Claim to be free from the Confession, and to be founded on the Con- fession, : a Contradictory and inadnieabien in lay ; : : 444 Inadmissible, even if the temporalities are abandoned, ; : 446 FTave they such a right ? g : 445 The Scottish Episcopal Church on the Pera af deceane ‘ 448 The Non-Established Presbyterian Churches— 1. They are not bound to any documents, : 2. How far are they bound to their past history ? ? : . 450 Principles of a Church — to be disentangled from its documents, its history, and its doctrines, . : ; ; : ; 452 CONTENTS. XV APPENDIX— Note A. Act of the General Assembly of the Free Church of Scot- land anent Questions and Formula, . 453 44. Met aera yee by the Free Church Assembly as ee Seandanis, Ss 1Sdl : : 57 », ©. The United yore vet Church. Basis of Union of 1847, 461 ,, D. United Presbyterian Formule, . ‘ 463 ,, E. Documents of the Scottish Episcopal Check 1. Preface to Code of Canons, : : ; 466 2. Extracts from Canons, > ; : : 467 3. The Thirty-Nine Articles, ; 469 ,, F. Notes on the theory of a Church and ie creed, wah special reference to the ‘‘ Doctrine of the Reformed Churches” (Act 1690, c. 5), : ; : : 471 INDEX OF MATTERS, : ; ; ; : ; 484 INDEX OF CASES, . : : : : 491 INDEX OF STATUTES, . : : : ; 494 THE LAW OF CREEDS IN SCOTLAND. Cli nar rR Rael: THE SCOTTISH CONFESSION. 1560 AND 1567. THERE are many reasons why the legal relation of Scottish Churches to their creeds should be looked at, in the first in- stance, historically. The creed of the Established Church at present is the Con- fession of Faith, originally compiled by the Assembly of Divines which met at Westminster in 1643; and the legal connection between them may be said chiefly to depend upon two Acts of King William and Queen Mary, one of which ratifies it as the public Confession of the Church, while the other appoints that its ministers and preachers shall subscribe it as the confession of. their faith. But the administration of the creed, which is thus made the standard of doctrine, is left in the hands of the Church by a long series of legislative acts and judicial interpretations, which extend from the Reforma- tion to the present day, and the more important of which are closely connected with historical changes and revolutions. All questions, therefore, as to the limits and civil effects of this administrative power will be best approached by a know- A 2 THE SCOTTISH CONFESSION. 1560 AND 1567. ledge of the historical process which subjects the Church to its present conditions ; and especially of the successive Acts of Parliament as to religion, which hold a place of undisputed precedence in our Statute-book, earlier even than the date of the first recognition of the Church—now exactly three hun- dred years ago. ) But the Confession framed at Westminster was not the original creed of the Scottish Church. Our native creed is the Scottish Confession, which appears in the creeds of the Reformation, of date 1560, when it was drawn up by John Knox and his compeers. And the Westminster Confession, which only became the law of the land by the statute of 1690, was made the law of the Church forty-three years earlier, by an Act of Assembly—an Act, too, by which the Confession was adopted under certain explanations and conditions, which the statute presently binding the Church has rejected or ignored. These circumstances remind us that our subject has a close connection with that three hundred years’ debate be- tween statesmen and men of the Church, on the point of ecclesiastical independence, which forms so great a part of the history of Scotland. And before we arrive at the second por- tion of our volume, and inquire into the legal relations of Churches not established to the creeds which they have volun- tarily taken up, we shall be called upon to consider whether the attitude of the historical Church party in times past throws any light upon their present relation to their creed, now that the final decision of 1843 has rooted them out of the Establishment. The matter will be found so doubtful as to need all the historical illustration it can receive. The ques- tion how far the Established Church is tied to its creed, is a simple and easy one compared with the question how far the Free Church or the United Presbyterian Church is so tied. Nor is the question peculiar to those Presbyterian bodies which, with or without Voluntaryism, claim to stand on the ground of Church independence mapped out for them by Andrew REASONS FOR HISTORICAL TREATMENT. 3 Melville, and whose leaders, after the bitter controversy of the earlier part of this century, are now, in the irony of Provi- dence, negotiating for incorporation. It applies specially to bodies such as the Scottish Episcopal Church, and to all who cherish the idea of Church authority and jurisdiction. How far, at common law, can they vary their creed? The question comes up when civil rights are involved; and the tenures of churches and the execution of trusts make it necessary for law to give an answer. The rule of law is, that the property shall follow the principles to which it is devoted, and the Court will prevent its being diverted :—but what if one of these principles be that the Church shall have a right to change its principles or improve its creed? In humbly collecting and collating the series of judicial decisions on this point, and in afterwards indicating what the authoritative documents of the non-Established Scotch Churches are, it will be found an advantage to have first gone over the ancient ground where almost all of these bodies find a common origin. And if the Established Church is relieved from this most embarrassing legal question by the narrow limits of its legislative power, the difficulty is only transferred to the higher platform of the Legislature. The Treaty of Union in 1707, confirming the Re- volution Settlement in favour of Presbytery and the Confession of Faith, stipulates with the most solemn reiteration that its provisions shall remain and continue unalterable, and that their being observed “without any alteration thereof or derogation thereto, in any sort for ever,” shall be a fundamental and essen- tial condition of the Union: a provision which raises at once the whole question of the right of one generation to bind its successors in matters of religion, and reveals another of the constitutional questions surrounding and shadowing those legal problems which we propose rather to discuss. 4 THE SCOTTISH CONFESSION. 1560 AND 1567. Tur Creep of Scotland and the Church of Scotland emerge into history so nearly at the same moment,! that it is diffi- cult to say which has precedence even in order of time. It is at least equally difficult to say which is first in respect 1 Whatever the Christian or the statesman may do, it does not seem practicable for the lawyer to go farther back than the Reformation in dealing with the history of the Scottish Church. The Scottish Reformers, indeed, like all others in Europe, acknowledged Roman Catholic baptism as valid ; and this seems, on their own principles, to imply a visible Church of some kind previously subsisting in the country. So, too, the statute introducing the Scottish Confession abolishes many Acts of Parliament in the reigns of the first five Jameses, as having given occasion to the maintenance of ‘‘ ido- latry and superstition within the Kirk of God, and repressing of such persons as were professors of God’s holy Word, wherethrough divers innocents did suffer ;” and the phrase of the times, a ‘* Re-formation” of religion, or a new ‘‘face”’ of religion, might carry a similar interpretation. (Knox, in a well-known and eloquent passage of his History, declares the object of all his efforts to have been, ‘‘That the reverend face of the primitive and apostolic Kirk should be reduced again to the eyes and knowledge of. men.’’) But, on the other hand, the Acts de- claring the new Church of ‘‘ the bless- ed Evangel” to be the ‘‘only true and holy Church of Christ within the realm” (1567); and again, that there is ‘‘no other face of Church nor other face of religion than is presently by the favour of God established within this realm” (1579), are very express. No doubt this must not be pushed too far; for the ‘‘ Church of the Evan- gel” held communion with the other Churches of the Reformation, whose doctrine and discipline, though simi- lar, was not: identical with its own ; and our later legislation expresses this. A question might therefore con- ceivably be raised whether, now that the Revolution Settlement and the doctrine of toleration have intervened, these ancient statutes wholly exclude from the recognition of our law Dis- senting Churches similar in doctrine to the Church of Scotland, or differing from it only in such a point as the practice of a moderate Episcopacy. But there can be no question as to the deadly opposition between all our statute -law since the Reformation, whether of an earlier or later date, and the Higher Church doctrine which would make either Episcopacy, or what the Scottish Confession calls ‘*lineal descence,”’ essential to a Church of Christ; and, of course, between it and that absolute and centralised form of the doctrine embodied in the Church of Rome. So, while the Reformation statutes ignore any previous Church of Scotland, they do not ignore but denounce the visible Catholic Church of Rome; and throughout our law the relation between the ‘‘ Kirk” ac- knowledged before 1560 and that ac- knowledged after, is one of the sharp- est contrast. In the Scottish Confes- sion (1560) the Romish Church is al- luded to very unmistakably as ‘ the Church malignant ;” while even that of Westminster, after declaring that some Churches have so degenerated as to become mere synagogues of Satan, pronounces the Pope to be Antichrist. (See on this subject Lord Medwyn’s speech in the case of Cuninghame v. The Presbytery of Irvine ; Report of the Stewarton case, p. 17.) We can therefore derive no advantage in THE CHURCH BEFORE 1560. 5 of authority; and, indeed, the question whether the Church is founded upon the creed or the creed upon the Church, appears to be at the root of most of the legal difficulties that lie before us. The Church of, Scotland was recognised or established by the State in 1567 ; but the Scottish Confession of Faith dates from 1560, in which year also the first General Assembly was held. For the origin of the Reformed Church, however, we have to go back several years earlier, to the December of 1557, when the leading men of the new persuasion signed what was called the “ First Covenant,” or common bond. The subscribers to this document, on a preface of attacks being made upon “the Evangel of Christ and His congregation,” pro- mise “before the majesty of God and His congregation,’ to maintain, nourish, and defend “the whole congregation of Christ, and every member thereof,” to the death; “unto the our inquiries from the Pre - Reform- ation statutes as to ‘the libertie of Holy Kirk” (1424, c. 1; 1424, c. 26; 1443, c. 7; 1466, c. 1; 1489, Ga 72080, Gl < 1535,, ¢: 9; 1535; Gc 362 Lbd1, c. 7; 1551, c. 18)5 for the external or visible institute that is meant by the Kirk in all these is rejected by succeeding legislation in the most violent way. (The Statute 1571, c. 35, it must be admitted, reads ambiguously). How the Reformers speak of a Church (invisible) in Scotland before the Reformation may be gathered from the following extract from the Harmony of the Protestant Confessions, where (in the year 1581) the Churches of France and Belgia comment on a statement by the sister Church of Bohemia. (It will be remembered that the ‘‘doctrine of the Reformed Churches” is imported into our law by the Act 1690, c.5; and that our Scottish Confessions are rather more strongly anti-Romanist than those ut- tered abroad.) There are places, they say, where ‘‘it cannot safely be affirm- ed that the visible Church of Christ is to be seen, or is at all. And yet, notwithstanding, there is no doubt to be made, but some secret true mem- bers of Christ, and such as (it may be) are only known to God, be there hid; and therefore that there is a Church even in Popery, as it were, over- whelmed and drowned ; whence God will fetch out His elect, and gather them to the visible Churches that are restored and reformed, whereas Popery never was, nor is, a true Church.”— Harmony of Protestant Confessions, translated from the Latin: London, 1842. Whether, theologically, they were not bound also to have acknowledged a Church visible within, or in some way connected with, the old Romish Church, it is unnecessary to inquire. The legislation which we are about to trace is pure from any such ad- mission. 6 THE SCOTTISH CONFESSION. 1560 AND 1567. which holy Word and congregation we do join us, and also do renounce and forsake the congregation of Satan, with al] the superstitious abominations and idolatries thereof.” Henceforth the name Congregation! (by no means a worse rendering of the Scriptural ecclesia than the subsequent xvgaxéy or kirk) was the distinctive name of those who held themselves to be the only “professors of the religion” or “of the truth” in Scot- land; and their leaders are known in history as the “ Lords of the Congregation.” The first thing they did after being thus associated was to pass a remarkable ordinance as to the order of worship “in all the parishes of this realm,” the much greater part of which was still Romish, so that the ordinance took no effect out of their own particular territories; and a year after they protested to the Queen Regent (Mary of Guise) and Parliament, “Seeing we cannot obtain ane just Reformation, according to God’s Word, that it be lawful to us to use ourselves in matters of religion and conscience, as we must answer unto God, unto such time as our adversaries be able to prove themselves the true ministers of Christ’s Church ”—a prayer to “God’s lieutenant” for what they call “indifference” which is rare in Scottish history,? and which the Queen Regent was at that time disposed to grant. Next year, 1559, a rupture took place, and we find letters and mani- festoes to “the nobilitie of Scotland from the congregation of Christ Jesus within the same,” as well as a much less eivil and very menacing one to the “generation of Antichrist within Scotland.” A second covenant or bond was made on the 31st of May of this year by “the congregation of the west country with the congregation of Fyfe, Perth, Dundee, Angus, Mearns, and Montrose, being convened in the town of Perth in the 1 «* The visible Church of Christ isa but the liberty of conscience, and our congregation of faithful men.”—Nine- religion and fact to be tried by the teenth Article ofthe Church ofEngland. Word of God.”—Knox, i. 313. The 2 Knox, looking back on this early references to Knox’s Works in this time, says, ‘‘ We offered due obedience volume are to Dr Laing’s edition, in to the authority, requiring nothing six volumes: Edinburgh, 1846. CONFESSIONS BEFORE 1560. 7 name of Jesus Christ for forthsetting of His glory, understand- ing nothing more necessary for the same than to keep a constant amity, unity, and fellowship together.” And three months after a third bond, with the more special object of defence, was signed at Stirling, while a public proclamation was made “to the nobility, burgesses, and commonalty of this realm of Scotland” from “the lord barons and others, brethren of the Christian congregation.” ! The various “congregations” which belonged to the “con- gregation of Christ” in Scotland, seem at first to have used the liturgy of King Edward VI., which was the Book of Common Prayer referred to in the ordinance of the Lords of the Congregation just mentioned.2 It included the Apostles’ Creed, and when published in England in 1552, was followed in 1553 by King Edward’s Catechism, “containing the sum of Christian learning” in the form of articles of reli- gion, as well as of question and answer. But this have been very soon superseded by the “ Order of Geneva,” containing the Confession of Faith of the English congrega- tion there, which had been presided over by Knox. This short Confession is said to have been “approved of by our Church” before 1560,* and was certainly used in it both be- fore and after that time. But there is no record of any formal approval of any Confession (the ordinance as to worship being the nearest approach to it), until the death of the Queen Regent, and the calling of the Parliament of 1560, brought the nation to the great crisis of its history.° must 1 Knox, Calderwood, Spottiswoode, Keith, &c. 2 Knox, i. 275, and vi. 277. 3 Liturgies of King Edward VI. (Parker Society), 485. £ “Before this Book of Common Order is set down the Confession of the English Church at Geneva, which was approved by our Reformed Kirk, before this other Confession of our Kirk was ratified at this last Parlia- ment.’’—Calderwood’s History (folio), 25. 5 Indeed, while the Church was in the state long after described by Knox, ‘when as yet there was no public face of a Kirk, nor open assemblies, but secret and privie conventions in houses or in the fields,” public adop- tion of a Confession was hardly to be’ expected. If formally adopted at all, then it must have been for local 8 THE SCOTTISH CONFESSION. 1560 AND 1567. The Parliament of 1560—by far the most important which has ever sat in Scotland—contained a “great assembly,”? chiefly of the lesser barons; but being without royal autho- rity, its legality was always impugned, and required the ex- press ratification of a subsequent Act. That Act (the third of the first Parliament of James I., 1567) is the first in the usual editions of our Statute-book which refers to and em- bodies the Confession of Faith ; but it does so in the follow- ing retrospective form: “Ratifies and approves the Act underwritten, made in the Parliament holden at Edinburgh the 24th day of August, the year of God 1560 years; and of new in this present Parliament, statutes and ordains the said Act to be as a perpetual law to all our sovereign lords and lieges in all times coming. Of the which the tenor follows.” We are thus thrown back to the year 1560, and to the great document of that year, which is described in our Statute-book, in words every clause of which deserves to be carefully weighed, as “The Confession of the Faith and Doctrines be- lieved and professed by the Protestants of Scotland, exhibited to the Estates of the same in Parliament, and by their public votes authorised as a doctrine grounded! upon the infallible Word of God.” The history of the transaction, in so far as it has been preserved, seems in accordance with each part of this terse description. A “Supplication” was presented to the Estates from “the barons, gentlemen, burgesses, and others, subjects of this realm, professing the Lord Jesus within the same,” the first prayer of which was the abolishing of “such doctrine and idolatry as by God’s Word are both condemned;” and in response to this “were the barons and ministers called purposes, as elders and deacons were carefully and formally appointed.— Knox, ii. 151. And whatever was the ease afterwards, the ‘‘gude and godly ballate” entitled ‘The wind blaws -cauld,’ in all probability gives the true account of the confession of its authors in the earliest times— ‘Wha does present the New Testament, Which is our faith surely, Priests calls him like ane heretick, And says, ‘ Burnt shall he be.’ ” 1 Knox.—The names of those who sat in it are to be found in Bishop Keith’s History, i. 311. REVISION OF THE CONFESSION. 7 and commandment given unto them, to draw in plain and several heads the sum of that doctrine which they would maintain, and would desire that present Parliament to estab- lish as wholesome, true, and only necessary to be believed within the realm: which they willingly accepted, and in four days presented this Confession,” says Knox, who undoubtedly was its principal author! Yet either within this short period, or immediately after, it was subjected to at least one revision. “This our Confession,” says ‘Knox (for it was the Confession of the “ Protestants within the realm of Scotland,” presented to the Estates, and might have been rejected by the latter in- stead of being accepted), “was publicly read, first in audience of the Lords of the Articles,? and after in audience of the haill 1 Our only information as to the compilers of the Confession seems to be Knox’s statement with regard to the Book of Discipline. “Commission and charge was given to Mr John Winram, sub-prior of St Andrews, Mr John Spottiswoode, Johne Willok, Mr Johne Douglas, rector of St Andrews, Mr Johne Row, and Johne Knox, to draw in a volume the policy and disci- pline of the Kirk, as well as they had done the doctrine.”—Knox, ii. 128. 2 The Parliament was summoned for the 10th of July, and (as the Act 1581 c. 115 informs us) was continued to the Ist of August; but ‘‘ few or no lords” attended till the 8th, and Maitland says that it began, and that the Lords of the Articles were chosen, on the latter day, when he as chairman doubtless made his oration. The sup- plication might be presented shortly after; and the Lords of the Articles passed the Confession on the 14th. Randolph writes to Sir W. Cecil on the 15th as follows :— ‘*Mr Knox and Mr Wyllockes were yesterdaye before the Lordes of the Articles, with the Bishoppes. St Andrews desyered to have a coppie of the Confession of their Faythe. Yt was not denied hym to have yt shortly, thoughe yt be dowted that yt be to sende yt into France, before the Lordes do sende, then that he hathe any mynde tvexamen the veritie or reforme hys consciences, be yt never so resonable. Beinge but yesterdaye concluded, yt was not possible to send your honour a coppie thereof so soone. Forasmuche as yt is purposed shortly to sende them unto you, with whatsomever shallbe more resolved upon, I do also for thys tyme tayke my leave. ‘‘ Wrytten at Edenbourge, the xvth {of August], at viij of the clocke in the mornynge, 1560.” Maitland himself wrote Cecil on the same day :— ‘* There is sensyne already past the Confession off our Fayth, by ane uni- forme consent off the haill Lords off Articles, and to be sent to the King and Quene, whereoff within these three or four dayes I shall send you the copy. The whole estait off the clergy is on our syde, a few excepted off them that be present, as the Archebishop of St An- drews, the Bishopes off Dumblane and Dunkeld. The religion is lyke aneugh to fynd mony favourers off the whole off all estates.” —Knox, vi. 114, 115. 10 THE SCOTTISH CONFESSION. 1560 AND 1567. Randolph, the envoy in Edinburgh of Queen Elizabeth, informs us that, “before it was published or many words spoken of it, it was presented unto certain of the Lords It was committed unto the Laird of Maitland of Lethington, an able statesman, and afterwards as Secretary of Parliament.” to see their judgments. Lydington and the sub-prior to be examined.” State the clear-headed opponent of Knox, was speaker of this Parliament, which he had opened with a “harangue ;” and the remit to him and Wynram, the sub-prior of the Augustinian convent at St Andrews, was doubtless made by their brethren, the other Lords of the Articles. Whether their revision re- sulted in the suppressing of a whole chapter on the duty of obeying or disobeying magistrates (Mr Tytler alleges this), seems very doubtful; but as Randolph, in a most interesting letter quoted below, positively states that, without interfering with the doctrine, they “mitigated the austerity of many words and sentences,”! it’ is probable that the alterations on this particular portion were considerable.? Knox says nothing of this whole matter of revision, merely saying that within four days from the time the commission was given, they (the 1 “Tf my poore advice myght have bene harde touching the Confession of the Faythe, yt sholde not so sdone have come into the lyghte. God hathe sent it better success for the confirma- tion thereof then was looked for. It passed men’s expectatione to see it passed in such sorte as yt dyd. Be- fore that yt was published, or maynie wordis spoken of yt, yt was presented unto certayne of the Lords to see their judgements. It was commytted unto the Laird of Lydington and the sub- prior to be examined. Thought theie coulde not reprove the doctrine, yet dyd theie mitigate the austeritie of maynie words and sentences which sounded to proceede reather of some evil conceaved opinion, then of anie sounde judgement. The autor of thys worke had also put in this treatie a tytle or chapitar of the obediens or dys- obediens that subjects owe unto ther magistrates. It contayned lyttle les matter in fewe wordes then hathe bene otherwyse written more at large. The surveyors of thys worke thought it to be an unfit matter to be intreated at thys tyme, and so gave their advice to leave it owte.”—Knox, vi. 120, 121. 2 “Tt was no doubt owing to the recommendation of Lethington and Winram that the chapter in the Con- fession on the civil magistrate was drawn up in the language finally adopted—language which gives no en- couragement to the political theories of the school of Knox and Goodman.” —Grub’s_ Ecclesiastical History of Scotland, ii. 91. PARLIAMENT OF 1560. re barons and ministers) “ presented the Confession as it follow- eth without alteration of any one sentence.” The account of the public reading, “in audience of Parlia- ment,” on Saturday the 17th August 1560, is exceedingly in- teresting ; and the graphic description given by the chief actor in the scene is countersigned by the private letters of the sagacious English envoy, now given to the world.! 1 Randolph sends a copy of the Con- fession, which is still in the State _Paper Office, to Cecil on the 19th August, with the following account of this extraordinary legislative scene: ““T never harde matters of so great importance, nether soner dispatched, nor with better will agreed unto. The - matters concluded and past by com- mon consent upon Saturday last in such solemne sort, at the firste daye that thei assembled, are these: Firste, That the barons, accordinge to ane old Acte of Parliment, made in James's tyme the fyrste, the yeare of God 1427, shall have free voice in Parliment. This Acte passed without anie contra- dictioun, as well of the bishopes Papysts, as all other present. The nexte was the ratification of the Con- fession of their Fayth, in the which the Bishope of St Andrews, in maynie words saide this in effecte, That was a matter he had not byne accustomed with; he had had no sufficient tyme to examin yt, or to confer with his friends; howbeit as he yet will not utterly condemn it, so was he lothe to give his consent thereunto. To that effect also spoke the Bishops of Dun- kell and Dumblane. Of the temporall lords the Earle of Cassiles and the Earle of Caithness said, Noe. The rest of the lords, with common con- sent, and as glad a will as ever I heard men speake, allowed the same. Dyvers with protestation of their consciens and faythe, desyred rather presently to end their lyves than ever to thinke contrarie unto that that allowed ther. Maynie also offereit to shede ther blude in defence of the same. The olde Lord of Lyndsay, as grave and goodly a man as ever I sawe, sayd, I have lived manie yeres; I am the oldeste in thys companye of my sorte; now that yt hath pleased God to lett me see this daye, wher so manie nobles and other have allowed so worthie a work, I will say with Simion, Nunc dimittis. The olde Larde of Lundie confessed howe longe he had lived in blindnes, repented his former lyf, and imbrased the same as his trewe beleive. My Lord James, after some other pur- pose, saide, that he muste the sonner beleeve yt to be trewe, for yit some other in the compagnie did not allowe the same, he knew that Goddes truthe wolde never be without his adversaries. The Lord Marshall saide, thoughe he were otherwyse assured that yt was trewe, yit might he be the bolder. to pronounce yt, for that he sawe ther present the pyllars of the Pope’s Church, and not one of them that wolde speake agaynste yt. Maynie other to lyke effect; as the Laird of Erskin, Laird of Newbottle, the Sub- Prior of Andrews, concludinge all in one that that was the faythe wherin thei ought to lyve and die,”—Knox, vi. 116-118. Next day the Archbishop of St Andrews, the head of the Papal party in Scotland, wrote to the Archbishop of Glasgow, then in Paris, ‘‘ All men, for the most part, has made in Parlia- * 12 THE SCOTTISH CONFESSION. 1560. AND 1567. “This our Confession was publicly read, first in audience of the Lords of the Articles, and after in audience of the whole Parliament, where were present, not only such as pro- fessed Christ Jesus, but also a great number of the adver- saries of our religion, such as the forenamed bishops, and some others of the temporal Estate, who were commanded in God’s name, to object, if they could, anything against that doctrine. Some of our ministers were present, stand- ing upon their feet, ready to have answered, in case any would have defended the Papistry, and impugned our affirma- tives: but seeing that no objection was made, there was a day appointed to voting in that and other heads. Our Confession was read every article by itself over again, as they were written in order, and the votes of every man were re- quired accordingly. Of the temporal Estate only voted in the contrary, the Earl of Athole, the Lords Somerville and Borth- wick; and yet for their disassenting they produced no better reason, but, ‘ We will believe as our fathers believed.’ The bishops (Papistical we mean) spake nothing. The rest of the whole three Estates, by their public votes, affirmed the doctrine; and many the rather because that the bishops would nor durst say nothing in the contrary; for this was the vote of the Earl Marschall: ‘ It is long since I have had some favour unto the truth, and since I had a suspicion of the Papistical religion; but I praise my God, this day has fully resolved me, in the one and in the other; for seeing that my lords bishops, who for their learning can, and for that zeal they should bear to the verity, would (as I suppose) gainsay anything that directly repugns ment the confession of their faith, as ye shall receive the copy thereof, which was agreed in Parliament 17 Augusti, and voted without meikle resistance, except three bishops ;” and he givesa list of seven lords who were absent and unfavourable to the ratification, and seemingly) of three others who were Sly > to the verity of God; seeing, present. ‘‘In time,” adds the Arch- bishop, ‘‘if they be thollit (allowed), no man may live but without they grant their articles, which I will not.” —Bishop Keith’s Affairs of Church and State, iii. 4. See also Spottiswoode’s account, RATIFICATION OF THE CONFESSION. 13 I say, my lords bishops here present speak nothing in the contrary of the doctrine proponed, I cannot but hold it to be the very truth of God, and the contrary to be deceivable doctrine. And therefore, in so far as in me lieth, I approve the one and damn the other: and do farther ask of God, that not only I, but also all my posterity, may enjoy the comfort of the doctrine that this day ‘our ears have heard. And yet more, I must vote as it were by way of protestation, that if any persons ecclesiastical shall after this oppose themselves to this our Confession, that they have no place nor credit, considering that they having long advisement, and full knowledge of this our Confession, none is now found in lawful, free, and quiet Parliament to oppose themselves to that which we profess: and therefore, if any of this generation pretend to do it after this, I protest he be repute rather one that loveth his own commodity, and the glory of the world, than the truth of God, and the salvation of men’s souls.’ ” ! Nothing can be clearer than that the doctrine was not adopted in any way upon the authority of the new-born or Reformed Church. Knox and his compeers were present to support their supplication; the bishops, in their place in Par- liament, were invited to impugn the articles proposed; and all the forms of a free and deliberate voting of the doctrine as truth—as the creed of the Estates, not of the Church—were gone through. It was a doctrine “ professed by the Protest- ants,” exhibited by them “to the Estates,’ and by the Estates voted “as a doctrine grounded upon the infallible Word of God.” The preface bears out the same thing, for it is directed by “the Estates of Scotland, with the inhabitants of the same professing Christ Jesus His holy Evangel, to their natural coun- trymen, and unto all other realms and nations professing the same Lord Jesus with them.”* But indeed not only were the * Knox, ii. 121. as 7s proponed unto us, and as we be- 2 It goes on to speak of “this brief lieve and profess.” and plain confession of such doctrine 14 THE SCOTTISH CONFESSION. 1560 AND 1567. relations of the civil magistrate to the Church in Scotland postponed and subordinated to the more immediate claims and more absolute authority of “truth” (“God’s truth ”—“ the re- ligion”—“ doctrine grounded upon the infallible truth of God’s Word”): but at this early stage these relations were almost wholly ignored, even in the Confession itself, while the magis- trate’s relation to truth is made most emphatic and express. “ Moreover, to kings, princes, rulers, and magistrates, we affirm that, chiefly and most principally, the conservation and purgation of the religion appertains; so that not only they are appointed for civil policy, but also for maintenance of the true religion, and for suppressing of idolatry and superstition whatsoever.” + “The religion” in every case comes first; and the allusions to the Church are either incidental or come in by way of in- ference and deduction. This precedence given to truth above all things, and to doctrine which is the form of truth, comes out in the whole legislation of Scotland, and is not wanting in the three Acts passed in 1560, exactly a week after the Con- tession was ratified—Acts which were all re-enactéd in 1567.” By the first of these the jurisdiction of the “ Bishop of Rome, called the Pope,” was abolished, on the ground that it had been “ very hurtful and prejudicial to our sovereign authority and commonwealth of this realm.”? By the second, all Acts of Parliament “ made in times bypast not agreeing with God’s Word, and now contrary to the Confession of Faith, according to the said Word, published in this Parliament,” were annulled, 1 Scottish Confession, c. 24. Estates of the realme, at Edinburgh, 2 These Acts, passed on 24th Aug. 1560, were formally repeated or re-en- acted in 1567. The ratification of the Confession was never repeated, but is constantly founded upon in subsequent Acts. The minutes of Parliament, of 17th August 1560, embody the whole Confession, exactly as we give it in the appendix, with the addition, ‘‘ Thir Acts and Articles are red in the face of Parliament, and ratefyit be the three the 17 day of August the year of God 1560 yearis.” The Scottish Confession is to be found in Knox’s History, Calderwood’s History of the Church of Scotland, Dunlop’s Collection of Confessions, Edward Irving’s reprint of the Con- fessions of Faith and Books of Disci- pline, and (translated into Latin) in Niemeyer’s Collectio Confessionum. SA CE LO6T 4 Coe STATUTES OF 1560. “15 the reasons given in the preamble being their opposition to “God’s Word,” and that men had taken occasion’ by them of “maintenance of idolatry and superstition in the Kirk of God, wherethrough divers innocents did suffer.’' By the third, on the ground that “God and His holy Word” had made the true use of the sacraments “notour and perfectly known,” and yet that, “notwithstanding the reformation already made according to God’s Word,” some of the Papistical Kirk and their ministers stubbornly persevered in celebrating the mass, such “idolatry” was made penal, the third lapse into it to be punished with death.? It is the second of these Acts into which the Confession is incorporated in our published Statute- books. After being twice referred to in conjunction with God’s Word, it is added, “of which Confession of the Faith the tenour follows;” and then are inserted the twenty-five chapters, some of which we give in full (with the titles and order of the whole Confession), in the appendix to this chapter.’ From 1560, after the death of the Regent, Mary of Guise, to 1567 and the abdication of Mary Queen of Scots, matters continued in the same state. The one circumstance that prevented the great doctrinal revolution being carried into effect by an establishment of the Church, was the arrival, in 1 Act 1567, c. 3. 2 Some Acts passed during the re- years;” 1578, c¢. 613° 1581; ¢. 91, ‘«The ratification of the liberty of the mainder of the century may here be enumerated as bearing remotely on the subject of this volume, and not spe- cially referred to in subsequent pages, viz.:—1567, c. 11, ‘That teachers of youth should be tried by the visitors OletheeKirk;~ 8Lb6/,. Ca l4s, 107, C. 15; 1572, c. 58, ‘‘ Excommunicate persons should be denounced rebels ;”’ 15738, c. 55, declaring divorce for de- sertion competent, ‘‘since the true and Christian religion was publicly preached, avowed, and established within this realm, namely, since the month of August the year of God 1560 true Kirk of God and Religion, with confirmation of the Laws and Acts made to that effect of before,” contain- ing an important enumeration ; 1581, e. 100; 1581, ¢. 104; 1581, c. 106; 1581, c. 115; 1584, c. 181; 1584, c. 132; 1587, c. 23; 1587, c. 24; 1587, ce. 25, ‘*That sellers and dispersers of erroneous books should be punished, and the books destroyed ;” 1587, c. 27; 1587, c. 125; 1593, c. 168; 1594, c. 196; 1594, c. 197; 1600, c. 16. 3 Appendix, Note A. For the stat- utes see Note B. 16 THE SCOTTISH CONFESSION. 1560 AND 1567. 1561, of a young, beautiful, and strong-willed queen, who was received with great enthusiasm. Mary’s first proclamation was, Knox says, “penned and put in form by such as before professed Christ Jesus ;” death, to make any alteration until a meeting of the Estates and it forbade any one, on pain of on the “state of religion which her majesty found publicly and universally standing at her arrival in this her realm.” Mary’s object, doubtless, was to recover her ancient kingdom to the Romish faith ; but the tide ran so strongly against her that she found it impossible to preserve even the mass held in her private chapel from the indignant intolerance of the newly-converted nation. And shortly before her abdica- tion she was able, with some show of truth, to take her sub- jects to witness, in an Act of Parliament, that “her high- ness, since her arrival, has attempted nothing contrary to the estate of religion which her majesty found publicly and universally standing.” And all this time it was an 5) “estate of religion,” a reign of creed. The Church was not established — was scarcely recognised, certainly not as the national Church. Only the Estates of Scotland had solemnly confessed that “there has been, now is, and to the end of the world shall be, one Kirk—that is to say, one company and multitude of men chosen of God, who rightly worship and embrace Him.’ They had confessed also that “neither an- tiquity, title usurped, lineal descent, place appointed, nor multitude of men approving one error,’ were notes of the true Church; but, the true preaching of the Word, the right ad- ministration of the sacraments, and church discipline rightly administered. And wherever these last were found, though the number be about two or three, there is the Church of Christ —not the universal, of which they had given the de- finition before, but the particular, such as was in Corinthus, Galatia, Ephesus, and other places called in Scripture kirks of God. “And such kirks, we the inhabitants of the realm of Scotland, professors of Christ Jesus, profess ourselves to have ACT 1567, Cc. 6. Wi in our towns and places reformed.” Farther than this they did not go—till Darnley was murdered in Kirk-of-Field, and Mary, after marrying Bothwell, succumbed to the indignation of her subjects. And then, in the Parliament of 1567,that great Act was passed, “ Anent the true and holy Kirk, and of them that are declared not to be of the same” (1567, c. 6), by which (far more than by the subsequent Act of 1592, which has been called its charter) the Church was formally recognised and defined. It is never to be forgotten, for it is very much a key to the history of Scotland, that the civil power thus actually sanctioned the creed of the Church seven years before it recognised the Church itself. And yet it was but one step more they had now to take. They had already confessed the religion and the Evangel, and had avowed that there was a church, or at least that there were churches of God in the realm. That state of matters had continued for many years, and for the last seven years had been avowed. The Act now proceeds upon it :— “Our sovereign Lord, with advice of his three Estates, and haill body of this present Parliament, has declared and declares the ministers of the blessed Evangel of Jesus Christ, whom God of His mercy has now raised up among us, or hereafter shall raise, agreeing with them that now live in doctrine and administration of the sacraments, and the people of the realm that professes Christ as He is now offered in His Evangel, and does communicate with the holy sacraments (as in the Re- formed Churches of this realm are publicly administered) according to the Confession of the Faith, to be the only true and holy Kirk of Jesus Christ within this realm.” Several things will be observed in this important enactment. It is declaratory, proceeding upon a state of things fully under- stood and for a number of years avowed, but which it now 1 Some confusion crept into the text above I give the corrected ver- printing of this Act, and on this ac- sion, the original one being put in its count it was corrected and re-enacted place in the appendix to the chapter. in the year 1579: Act c. 68. In the B 18 THE SCOTTISH CONFESSION. 1560 AND 1567. formally accepts, declaring the existing Church to be the true one. Secondly, it not merely acknowledges, but it establishes the Church (so far as enactment without endowment goes) ; and it establishes it not only for the present, but for all future time. And, lastly, it not only acknowledges and establishes, but it defines the Church. It does so by the “ Evangel” as then preached, by “doctrine” as then held, and by the “sac- raments” as publicly administered ; but the definition is made far more valuable for our purposes when it is added, “ accord- ing to the Confession of the Faith.” And this application of the Creed of 1560 as, along with participation in the sacra- ments, a test and definition of the Church, comes out still more plainly in the rest of the enactment, which “Decerns and declares all and sundry, who either gainsay the word of the Evangel, received and approved, as the heads of the Confession of the Faith professed in Parliament of before in the year 1560 years, as also specified and registrate in the Acts of Parliament made in the first year of his highness’s reign, more particularly do express, or that refuse the partici- pation of the holy sacraments as they are now ministered, to be no members of the said Church within the realm [and true religion'] now presently professed, so long as they keep them- selves so divided from the society of Christ’s body.” Thus it was that the Church, which seven years before had persuaded the Estates to acknowledge its creed as the truth of God, was, by a much later Act, acknowledged as being the Church of God. And the latter transaction was founded upon the former. It is the Confession of 1560 which in the Act of 1567 defines the Church. But if the State in its dealing with creed acted inde- pendently of the Church, and indeed so long ignored it, the position of the Church during the same period is equally striking. We have seen it already as the “Congregation of 1 These three words are not in the old Act. ' THE CHURCH BEFORE ITS ESTABLISHMENT. 19 Christ Jesus,” embracing “ particular Kirks ;” and when “ con- vened in council,” making occasional ordinances for common prayers, doctrine, preaching, and interpretation of Scripture in all parishes ; but without any regular polity or common eccles- iastical action. The great crisis for the Church in Scotland, as well as for every other interest there, was that of 1560. It was 1567, indeed, which statutorily recognised or established it, and so turned it, by State authority, from the Church in Scotland into the Church of Scotland. But while there is overwhelming evidence to show that the Church held itself long before this statute to be the Church of Christ in Scotland, there is not a little to indicate also that it held itself to be the Church of Scotland, if indeed in their view there was any difference between the two phrases. At all events, the Church of Knox, which even before 1560 called itself “the Congre- gation of Christ within the realm,” was not likely to make too little of the all but unanimous approval of its whole doctrine by the Estates of Scotland. Besides, in the Confession itself there are two important doctrines bearing on the subject. They say nothing there, indeed, about a Church of Scotland. They confess first, like all the creeds of the Reformation, a church catholic, which is invisible, but consists of all through- out the world who individually believe in Christ. They also acknowledge particular churches visible in the “ cities, towns, and places of Scotland ”—that is, particular congregations. So far they have not arrived even at one church in Scotland, still less a Church of Scotland. But they go on to say, “ We con- fess and acknowledge empires, kingdoms, dominions, and cities to be distincted and ordained by God; . . . so that whosoever goeth about to take away, or to confound the whole state of civil policies, now long established, we affirm the same men not only to be enemies to mankind, but wickedly to fight against God’s expressed will.” After this strong and rash expression of a divine right in existing nationalities, a particu- lar Church of Scotland became almost a necessity, and they 20 THE SCOTTISH CONFESSION. 1560 AND 1567. scarcely needed the doctrine which immediately follows in the same chapter, but which is still more conclusive, that “ kings, princes, rulers, and magistrates are appointed not only for civil polity, but also for maintenance of the true religion.” This latter principle they could, indeed, in the mean time make but_ partial use of; for their queen, “ God’s lieutenant,” was steadily and skilfully hostile to them. But it was the manner of the Church in Scotland, then and always, to take all the recogni- tion it could get, to demand more, and to protest that it had So here while the Church had assumed independent national ac- tion, without the magistrate, in regard to matters of polity, its apologists were obliged to take up a similar position even with regard to the creed. Immediately after the Parliament of 1560 voted the Confession, the Lord of St John (Sir James Sandilands) was sent to France to get the ratification of it by the young queen, then the wife of the Dauphin. He was not well received at the great Catholic Court of St Denis. “No ratification brought he unto us. But that we little regarded, nor yet do regard; for all that we did was rather to show our dutiful obedience, than to beg of them any strength to our religion, which from God has full power, and needeth not the suffrage of man, but in so far as man hath need to believe it, if that ever he shall have participation of the life everlasting.” While this most characteristic utterance shows the position which Knox was prepared to take up, if need be, against the Estates as well as the sovereign, it cannot be doubted that he and the whole Church highly valued the sanction which had been given to their Confession by the former power.? Had full original rights apart from any recognition at all. 1 «¢Gusiani in eum asperrime cohor- ti increpabant, quod homo sacre mil- itie addictus mandata rebellium pro heresi illa execrabili, quam tum max- imus omnium gentium consensus in Concilio Tridentino damnaret, perfer- enda suscepisset.’” — Historia Georgii Buchanani (folio, 1582), 199. 2 The able argument of the Duke of Argyll, in his ‘Presbytery Exam- ined,’ that the Church and the State were at this early time not really dis- tinct, or at least not nearly so distinct as they afterwards became, is worthy of consideration. The history of the Reformed party, both before and after THE FIRST GENERAL ASSEMBLIES. 21 this not been given, the Confession would have remained simply the creed of the Protestants in Scotland, exhibited to the Estates and rejected by them. As it was, they could claim that there was a “state of religion publicly and universally standing” when their queen came. The Parliament had met, and the Confession had been rati- fied in August; and in December of the same year, 1560, the first General Assembly was held. We have seen already the two steps of theory by which they may have founded a Church of Scotland out of the “particular Kirks;” but it is curious to trace the actual transition in the Book of the Universal Kirk.’ Whatever the theory may have been, it was practically the Parliament of 1560, is unfavour- able to the theory of identity ; and the Confession itself, with the exception of the passage about the civil magis- trate, bears against it. The joint Act of the Reformers and the Parliament in establishing the Confession of 1560, is the thing most in its favour ; and it must be remembered that the General Assembly which met soon after never attempted to ratify the Confession, but took it as a fait accompli. The reason for this may have been that it was ‘‘ the professors of Christ Jesus ” who originally presented it to Parlia- ment; but it may also have been that Parliament had authority to publish the creed for its subjects, and that the Church simply accepted it. And when we find the Estates, which in 1560 had professed the religion accord- ing to the Confession, declaring in 1567 that those who professed the re- ligion according to the Confession are the Church, the coincidence of the two institutions, though not their identity, may be held to be proved. The late Professor Ferrier of St An- drews had an extreme theory that the Church and State in Scotland are one; that the General Assembly is a national council, or junior House of Parliament, not subordinate to the other, being, in fact, ‘itself the State, acting in a peculiar capacity ;” and that if, in 1843, it could not make terms with the other Parliament, it ‘*should have clung at all hazards even to the temporalities.’’ — Obser- vations on Church and State, suggest- ed by the Duke of Argyll’s Essay. William Blackwood & Sons, 1848. 1 This earliest record of the minutes of Assembly is entitled ‘The Booke of the Universall Kirk of Scotland : wherein the heads and conclusions de- vyset by the ministers and commis- sionaris of the particular Kirks there- of are specially expressed and con- tained.’ (In this work we quote the edition in one volume, 1839.) It commences with the /irst General Assembly, giving ‘‘the names of the ministers and commissioners of the particular Kirkes of Scotland convened to consult upon these things which are to set forward God’s glory and the well of His Kirk in this realm,” in Decem- ber 1560, ending on the 27th of that month, when ‘‘the Kirks convened continows this their Assembly till the 15th day of Januarie.” The second Assembly, 1561, com- menees, ‘‘ The whole Kirk, convened 1560 AND 1567. 22 THE SCOTTISH CONFESSION. by meeting in General Assembly that the “ particular Churches of Scotland” became “the whole Church convened,” and “ the universal Church of Scotland ;” and it is strange to find the verbal traces of the old confused state of matters in the record _of the polity which was superseding it. But with this the very first General Assembly and its work commenced the long and fatal question of Church independence. By it the Book of Discipline of the Church was “examined, allowed, and approved,” and then, like the doctrinal Confession a few months before, presented to the nobility,! but with a different result. The Council from the first refused to sanction it ;? and when the queen returned shortly after, it became hopeless to expect that this could be obtained. , The result was remarkable, and throws the strongest light in the Tolbooth of Edinburgh, has de- cerned,” &c.; and they, inter alia, au- thorised a petition to her majesty in the name of the ‘‘ professors of Christ Jesus His holy Evangel.” The third, June 1562, bears to be ‘‘the convention of the Kirk of Scot- land, gathered in Edinburgh,” &e. And the fowrth, December 1562, is **the General Assembly of the Kirk of Scotland, convened at Edinburgh ;”’ so that we need continue our deduc- tion no farther. 1 The right of the State to an inde- pendent judgment on Church matters is acknowledged in this transaction as clearly as it had been formerly with regard to matters of doctrine: ‘‘ For as we will not bind your honours to our judgments further than we are - able to prove by God’s plain Scripture ; so must we most humbly crave of you, even as ye will answer in God’s pre- sence, before whom both ye and we must appear to render account of all our actions, that ye repudiate nothing for pleasure and affection of men, which ye are not able to disprove by God’s written and revealed Word.” It is well to observe here, what the reader of Scottish Church history finds everywhere afterwards, that the Book of Discipline is a sort of creed—a de- claration of what was supposed to be God’s mind and will in the particular region of Church matters. To follow out all the subsequent discussions on Church polity and discipline in this volume would be quite impossible—it would be to write the history of Scot- land. But through them all this re- mained the position of the Church— not lower, founding on expediency ; nor higher, founding on a Church right to give doctrine to the world ; but merely, a continual confession of a Church order supposed to be delivered to men in Scripture—a faith in an ex- ternal revelation, over which men had no power but to confess and obey it. The whole strength, or weakness, of the Church for many ages lay in this position. 2 Knox writes the reasons with his sharpest pen: ‘‘Some were licen- tious ; some had greedily gripped the possessions of the Kirk; and others thought that they would not lack their part of Christ’s coat.” CHURCH INDEPENDENCE BEFORE 1567. 23 upon the interesting period between 1560 and 1567, when there was a creed of Scotland established, but no Church of Scotland established. The Book of Discipline being rejected by the State, the Church itself approved (and: indeed the As- sembly of 1560 had seemingly “subscribed”?) this scheme of its polity; and it instantly proceeded to carry it into execution, so far as all matters within its own control were concerned. The General Assembly continued to meet by the authority of the Church itself? and year by year laid the deep foundations of the social and religious future of Scotland. From 1560, if not earlier, down to 1567, the Kirk was a volun- tary Church, in the sense that not only all endowment, but all jurisdiction and authority, and even all recognition, were denied her by the State. During all this time the records of the first fifteen General Assemblies, preserved in the Book of the Universal (7.¢., whole) Kirk, show abundantly that the 1 «Thus far out of the Book of Dis- cipline, which was subscribed by the Kirk and the lords ”’—7.¢., certain of the lords of the Council. 2 It has been observed that the doctrine of the independence of the Church has not that prominence in the writings and actings of Knox which his more zealous followers would have desired. The fact is, that that doctrine in its explicit form is scarcely found there. The work of that founder of our nation was to build up, not to break down—to unite Church and State in a perpetual bond, not to sug- gest reasons for their separation. Yet in that age of principles, men, whether they willed it or no, went deeper than the political surface; and in perus- ing every page of his History, we feel heaving under our feet the ignes sup- positos of many a future explosion. This comes out especially in the con- versations with Maitland, his great adversary, who, says Mr Froude, ‘*would at any age of the world have been in the first rank of statesmen.” The clear-sighted Erastian had ob- jected to the first Assembly held after the arrival of Queen Mary, as being convened without her authority. Knox, of course, scouted the objec- tion; but his reason is interesting : “*Take from us the freedom of Assem- blies, and take from us the Evangel ; for without Assemblies, how shall good order and unity in doctrine be kept?” The connection between synods and community of creed is brought out more fully in the article on councils quoted in the appendix to this chapter. It may be remembered that the freedom of assembly—the right to hold synods and councils apart from any permission by the State—has been held, even by High Churchmen (as by Mr Gladstone in his ‘State in its relation to the Church,’ ii. 28, 34), to be a test in the last resort of that native independence of the Church which for a time the Church may re- sign. 24 THE SCOTTISH CONFESSION. 1560 AND 1567. Church did not shrink from exercising all judicial and admin- istrative and legislative—in short, all conceivable—functions of a Church; while for all civil objects and results that her unaided powers (stretched not a little) failed to attain, she constantly and clamorously appealed to the State, which for the time refused to hear. Nearly three centuries later it was claimed pertinaciously at the bar and on the Scottish bench, as well as by the predomi- nant party in the Church, that the State acquiesced in this independence claimed by the Church, and that on this under- standing it was afterwards established. The claim was re- jected after the fullest and most careful consideration; but while it has been decided that the claim of the Church was never submitted to by the State, the fact that such a claim was cherished and put forth by the Church itself has scarcely been seriously disputed, and the immense preponderance of historical evidence is in its favour. Yet while the claim of independence, made always in the matter of Church polity, apples a fortrort to that of Church doctrine, the conflicts have generally taken place about the former, not about the latter. The creed at the time of which we now treat was the bond between the Church and State—the one thing which both held, and to which they professed a common allegiance ; and it has been the one thing from which, amid the innumerable struggles that have since taken place between the two parties, neither has ever broken away. Yet what has not occurred in the past may occur in the future; and though it might seem unnecessary, especially since 1843, to consider the effect of the old claims of independence upon the creed of the Church, even this may be too hasty a conclusion. But proposing in this volume to consider the relation to creeds, not only of the Established Church of Scotland, but of voluntary Churches claiming to represent its most ancient principles, it will be very necessary to bear in mind the position of the Universal Kirk before 1567. PRIVATE JUDGMENT IN 1560. 25 We have seen the historical origination of the creed by the State and the Church, and their mutual relations in regard to it. Another interesting question arises, How far did they, or either of them, intend themselves to be permanently bound to this creed? The question is raised in the most striking way by the “ Protest” embodied in the Preface to the Confes- sion of 1560:1 “ Protesting that if any man will note in our Confession any article or sentence repugning to God’s holy Word, that it would please him, of his gentleness, and for Christian charity’s sake, to admonish us of the same in write, and we of our honours and fidelity do promise unto him satis- faction from the mouth of God—that is, from His holy Scrip- tures, or else reformation of that which he shall prove to be amiss.” A very striking commentary on this abnegation of infallibility and expression of the right of private judgment is given in the article of the Confession which treats of gen- eral councils.” It goes very far, asserting that the right of councils is “ neither to forge new articles of our belief, neither to give the Word of God authority, much less to make that to be His word, or yet the true interpretation of the same, which was not before by His holy will expressed in His Word.” None of the Confessions of the Reformation has a stronger ex- pression of that right and duty of private judgment, on which 1 We give in the appendix thisim- cils of the Roman Catholic Church portant document, with the salutation from the Estates of Scotland to the world, from the minutes of Parliament of 1560; neither of them being re- produced in the Statute of 1567, which is commonly in the hands of lawyers, while in the title of the Confession there are also some verbal alterations. 2 In reading the article on councils (see appendix to this chapter), it is interesting to remember that the Council of Trent was at that very time sitting in the south, slowly elaborating its colossal schism, and buttressing it with definition and ana- thema; that in Scotland several coun- —i.e¢., clergy—had been held with- in the last few years; that on the other hand, ‘‘the lords and barons professing Christ Jesus convened fre- quently in council” had issued thence their ordinances; that the General Assembly commenced its sittings i1m- mediately after; and that the meet- ing in Parliament in 1560 was as like a general council as any of these, being universal as regards the nation, and as regards the Church, not only in- cluding its representatives, but laying a doctrinal foundation for its ordinary assemblies in time to come. 26 THE SCOTTISH CONFESSION. 1560 AND 1567. they are all founded, and which they necessarily tend to re- press. The question at once occurs, How far this protest for freedom to follow God’s Word only is reconcilable with en- actments by the State founding the Church upon the Confes- sion, or at least defining it by the Confession, as in the funda- mental Act of 1567; or, indeed, with enactments by the Church itself binding itself for the future to the Confession of its present faith? It is difficult, on the one hand, to see how the Church can be recognised and established without some definition, such perhaps as the Confession supplies; on the other, the declaration that those who in all time coming shall believe it, and those only, are the true and holy Church of Christ Jesus, leaves little room for that correction of the Confession which our Reformers pray men of their gentleness to make. 1 Tt must not be forgotten that the Church gave a certain sanction to other doctrinal confessions and utter- ances, besides that adopted by statute, and seems to have felt itself in no de- gree restrained in this respect. Before 1560, the ‘‘ Congregations” which made up the ‘‘ Congregation of Jesus Christ within the realm,” used first the Service-book of the Church of England (of King Edward VI.), and afterwards the Order of Geneva, the first part of which, beginning, ‘‘I believe and confess my Lord God eter- nal,” &c., is entitled ‘ The Confession of Faith used in the English Congre- tion at Geneva, received and approved by the Church of Scotland.’ The catechism also (Calvin’s Catechism), contained in the Order of Geneva, is expressly appointed to be taught in Scotland by the First Book of Dis- cipline—i.e., as early as 1560. In 1564 the Book of Common Order was established by the Assembly as a form of worship; and this book not only contains the Genevan Confession and Calvin’s Catechism, but appoints It is to be remarked that the preface which con- the parent at the administration of baptism to ‘‘rehearse the articles of his faith,” —7. e., the Apostles’ Creed, the clauses of which are expounded in detail. An interesting episode is the solemn approval given by the Assembly of 1566 to the later Confession of Helve- tia, sent for their approbation by Beza and his Church. A letter to Switzer- land acknowledges the courtesy of the appeal to Scotland (“gentem in ultimis terre angulis Domino servientem”’) for an expression of its communion in the faith confessed; and explains how, having met at St Andrews, they went carefully over every chapter and sen- tence, and now gave their united and energetic approval (patrocinium) to it. The members of this St Andrews meeting sign individually, and add the seal of the university, offering, if need be, to procure ‘‘subscriptionem hujus Ecclesize publicam,” and to send to Zurich in return their own Scot- tish Confession. This was in Sep- tember, and the Assembly which met in December adopted both the Zurich PRIVATE JUDGMENT SUPERSEDED BY CREED, 27 tains this remarkable petition, and which is addressed by the Estates to all countries, though inserted in the minutes of the Parliament of 1560, is omitted when the Confession comes to be re-enacted in 1567, and does not now appear on our Statute- book. It remains, therefore, a document as much of the Church as of the State, and indeed is fully as characteristic of the former as of the latter, so far as aspiration for freedom is concerned. And yet we find that the Church, which always outran statesmen in its passion for orthodoxy, accepted estab- lishment on conditions which seem practically to tie it down to doctrine, and, except on two important occasions of sub- sequent history, has never shown more than a formal willing- ness to carry out the protestation of 1560. Scotland has always, indeed, asserted the Word of God to be “the only rule of faith,” while the creed is only the utterance, expression, or confession of that faith. It has always preferred to call this document. not the standard, but one of the “subordinate standards,” of the Church, reserving the absolute name for the holy Scriptures. Yet ever since the passing away of that noble generation of men whose earlier years were spent in rejecting the right of the Church to impose upon them any creed, and their later in fixing down, by civil and ecclesiastical enactment, their own creed upon all generations to come /— Confession and the letter of approba- tion, and ordered both to be printed, adding, however, a note of excep- tion to the clause approving of holidays. This Confession, besides having the approval of six Swiss Churches, was ratified by the Protes- tant Churches of Geneva, Savoy, Po- land, Hungary, and Scotland.—See Knox, vi. 544. The Scottish Confession, indeed, seems to have been felt as no bar, either to that sympathy with foreign Churches, by which the Scottish feel- ing of responsibility to European opin- ion (which Mr Froude notes) was at this time enriched, or, on the other hand, to the use of all other means of diffusing religious truth among the people at home.—See Notes upon the Catechisms of the Scottish Refor- ination (London, 1866), by Horatius Bonar, D.D.; where the sequence of Calvin’s, Ursins’s, and Craig’s Cate- chisms, successively sanctioned by or used in the Church of Scotland dur- ing the reign of its earlier Confession, is traced. 1 How the Reformed Church, im- mediately after so strong a statement of the right of private judgment, was able to combine with it a passionate attachment to the dogmatic truth they held themselves to have attained, 28 THE SCOTTISH CONFESSION. 1560 AND 1567. ever since that insurrection of private judgment which we call the Reformation—private judgment has been frowned upon in Scotland; and the people and youth have been practically referred, not to the “truth of God” alone, but to that wise and careful interpretation of it which their ancestors used their private judgment to attain. It is to be remarked, however, that in the whole literature of this time, and especially in civil and ecclesiastical enact- ments, the Confession is always treated as a whole. Adherence to it is used as convertible with adherence to “the Evangel,” or with “profession of Christ Jesus.” One living principle, of immediate acceptance with God through His promise in Christ, in opposition to a system which was supposed to interpose a screen between God and man, burns through all the documents; and there is no approach to the idea which oppresses the mind of a colder age, that a confession is a vast congeries of propositions, all of nearly equal importance, and to be dealt with individually rather than collectively. It is also very manifest that this is essentially a Reforming Con- fession—not so much a scientific exhibition of theology as an explosion of God’s truth against Rome; and in this respect, as in the former, it affords a contrast to the later Confession of Westminster.’ These characteristics of the Scottish Confession comes out well in their correspondence with no less illustrious a pupil than Queen Mary.—See Note G of Appen- dix. 1 The object of the Confession is best to be gathered from the preface : ‘*A thirst to notify unto the world the sum of that doctrine which we profess, and for which we have sus- tained infamy and danger,” led to it ; ** partly for satisfaction of our breth- ren” who hear us calumniated, and ‘“‘ partly for stopping the mouths of blasphemers ” —7.¢., revilers. ‘‘ For God we take to witness in our con- sciences, that from our hearts we ab- hor all sects of heresy, and all teachers of erroneous doctrine,” and they pro- fess themselves ready to die for ‘‘ the purity of Christ’s Gospel.”—See Pre- face in Appendix. It is interesting to compare this with the Preface to the Geneva Cate- chism, a treatise which was afterwards adopted by the Church of Scotland, where the internal danger of error is more strongly insisted upon: “ More- over, the dangers which hang over Christ’s Church in these days move us very much; for as men may see present signs of certain barbarousness, and puddles of error which are like to chance in the Church of God, so there is no better preservation against SUBSCRIPTION TO CREED OF 1560. 29 are important for the study of the legislation of the time ; and will probably be held of value in interpreting not only the greater statutes already narrated, declaring the Confession to be the Confession of the Church and those gainsaying it not to be members of the Church, but also those which we now proceed to notice demanding individual adherence to it, and even subscription. Subscription is a distinct and additional step; and we find no record of this having been formally, or at least statutorily, required till 1572.’ John Knox was still alive. The Queen of the same than if all godly Churches would agree in one kind of doctrine and Confession of Faith, which in all points were agreeable to God’s holy Word, that our posterity might be confirmed by the universal example of Christ’s Church against all heresies, persecutions, and other dangers, per- ceiving that it is not only the doctrine of one man, but the consent of the whole Christian Church, and that wherein all youth hath been brought up and trained in.” 1 In Bishop Keith’s History we have a letter to the Archbishop of Glasgow, then in Paris, from his fac- tor, who was in Edinburgh at the time of the great Parliament of 1560, and having made application to ‘‘ The Duke ”—i. e., of Chatelherault — for some of his lord’s rents, ‘‘ gat an an- swer, that his grace would not have ado therewith, and that there would no kirkmen be answered, neither of their places nor rents, without that they subscribed the articles of the new religion, as they have set it for- ward.”’ — Keith’s History (Spottis- woode Society edition), iii. 8. And it cannot be said that the idea of sub- scription was alien to the minds of churchmen even at this early time. The Book of Discipline was subscribed not only by the Assembly, but by many of the Council ; and Knox has preserved a most interesting discus- sion as to the import of this act ; Lethington having alleged that it was often done ‘‘in fide parentum, as the bairns are baptised,” while his oppo- nent pointed to the deliberate pre- vious discussion of it that had taken place. —Knox, ii. 297. The Book of Common Order of Geneva originally contained not only ‘The Confession of Faith used in the English Congregation at Geneva, re- ceived and approved by the Church of Scotland,’ but also another ‘ Form of the Confession of Faith, wherewith all subscribe as are received to be scholars in the Universitie of Geneva ; and it is very profitable for all townes, parishes, and congregations, to dis- cerne the true Christians from Ana- baptists, Libertines, Arians, Papists, and other heretics.’ See it printed in full in the sixth volume of Dr Laing’s edition of Knox, p. 361. In the Form of Election of Super- intendents and Ministers, given by Knox as of date March 1560, after half-a-dozen doctrinal questions to the candidate, it is asked, ‘‘ Will you not contain yourself in all doctrine within the bounds of this founda- tion?” But this is stipulatio rather than subscription ; and the first of the 50 THE SCOTTISH CONFESSION. 1560 AND 1567. Scots was in prison in England. Scotland was torn by civil dissensions—the regent, in alliance with Elizabeth of England, waging doubtful war with the Roman Catholic barons. The Reformed Church was trodden aside amid the feudal turbu- lence; but in consequence of the representations of Erskine of Dun, the Convention of Leith was held, and the result was that curious compromise by which bishops and superintend- ents were retained in the Church, but both were made subject to the General Assembly in spiritualibus. of this conference between “the commissioners of the king’s majesty and the Reformed Kirk of Scotland” was the Act of date 26th January 1572, which usually appears in our Statute- book under the rubric, “ That all ecclesiastical persons should subscribe the Confession of the Faith. Of heretics;” but which in the minutes of Parliament (Thomson’s Acts, vol. ii.) bears the title, “That the adversaries of Christ’s Evangel shall not enjoy the patrimony of the Kirk” (1572, c. 46). It proceeds expressly on the doctrine that the conservation and purgation But another result of the religion pertains to Christian princes, and bears that “every person who shall pretend to be a minister of God’s Word and sacraments,” or who does or shall enjoy the funds of any benefice, “and is not already under the discipline of the true Kirk, and participates not with the sacraments thereof,’ shall give his assent, and “subscribe the articles of religion contained in the Acts of our sovereign lord’s Parlia- ment,’? and also give his oath for acknowledging the king, questions refers to Scripture, as the ‘only true and most absolute founda- tion of the universal Kirk of Christ.” —Vol. ii. 146. At a date later than these, but still before 1572, a distinct case of com- pulsory subscription is found in the visit of the Regent Murray to Aber- deen in June 1569, when the princi- pal, sub-principal, and regents, all said to be Popish, were ordered by the Privy Council to subscribe the Confession and submit to the Kirk. The Act of Council narrates that ‘*they refused to give their said pro- fession by their handwrits,’’ and ‘in respect of the said persons’ plain denial to join in the true Kirk of God,” they are deprived of all instruction of youth. 1 From the articles of the conference at Leith, of which this Act of Parlia- ment is nearly a transcript, we learn that the ‘‘ Articles of Religion” are the Confession of the Faith and ACTS OF 1572. 31 “and shall bring a testimonial in writing thereupon.” ! Farther, both the Confession and the testimonial are to be read openly “on some Sunday, in time of sermon or public prayers, in the Church” by the incumbent, within a month after his admission, under pain of deprivation. And then the latter part of the Act gives the rule for enforcing this Confes- sion as a test: “If any person ecclesiastical, or who shall have ecclesiastical living, shall wilfully maintain any doctrine directly contrary or repugnant to any of the said articles, and being convened and called as follows, shall persist therein, and not revoke his error, or after his revocation shall of new affirm such untrue doctrine, such maintaining, affirming, and per- sisting shall be just cause to deprive him of his ecclesiastical living.” This Act, however interesting, is not so important as it appears. It and the subsequent Act 1572, ¢. 47, “Of Apos- tates,” which declares that “adversaries of the true religion are not subjects to the king,” ” bear marks of having resulted from the horror felt throughout northern Europe upon the recent massacre of St Bartholomew's Day. They are also obviously safeguards chiefly for the filling of the more lucrative higher offices now proposed to be introduced into the unwill- ing Church ; and they shared in the dislike felt for Morton the regent, and in the discredit which very soon attached to the Convention of Leith. There is no ‘notice whatever taken Doctrine of 1560, and that the en- actment was intended to apply to all ministers, and probably also to lay- men who might enjoy the emoluments of a benefice.—-See Calderwood’s His- tory, iii. 175. 1 There was at this early time no ‘*formula of subscription” in addi- tion to the subscription itself, the Scottish Confession (differing in this from that of Westminister) being framed in the first person, ‘‘ We con- fess and acknowledge ”—‘‘ We most constantly believe,” and only requiring individual subscription to testify in- dividual concurrence. The only thing like a formula is the preface, which we have already referred to. 2 This is Sir Thomas Murray of Glendook’s heading. The original Act has the more merciful rubric, ‘**Anent the disobedients whilkis shall be ressavit to our soverane lordis mercy and pardoun.”’ 3 Principal Lee, in his Lectures on Church History, is inclined to as- cribe this enactment to some contriv- ance against the queen’s party on the 32 THE SCOTTISH CONFESSION. 1560 AND 1567. of the Act as to subscription in the records of Assembly ; and it does not appear that it was ever obeyed or carried into effect by the Church.t lent.as they are, interfere (just because they are regulations) with that independent jurisdiction in matters of heresy which the Church in Scotland always claimed ; and the very phraseo- The most re- markable thing about it is thus the singular parallel between Indeed, the regulations contained in it, excel- logy which it employs seems foreign to our ears. it and that important statute of Elizabeth from which it is evidently copied, which, more fortunate than this abortive piece of Scottish State policy, has become the great rule of the Church of England in matters of doctrine, and whose application to recent questions has attracted the keenest interest of the present age.” part of Morton, the new regent, ‘‘ who never got the credit of having intended this or any other measure for the benefit of the Church.” But the whole Leith arrangement was odious tothe Church. The Assembly of 1572 protested that it was to be ‘‘ only re- ceived as an interim, until farther and mair perfect order be obtained ;” and, two years after, the learned and fiery Andrew Melville organised an opposi- tion to the pseudo-Episcopacy ; and in the Second Book of Discipline the Church introduced a policy for itself, without any reference to this or simi- lar enactments. It is somewhat remarkable that subscription, both to the Westminster Confession and to this old one, seems to have been first introduced by a power from without while the Church was rather unwilling to receive it. 1 This and the subsequent Act, however, were expressly confirmed by 1581, c. 99; and the Statute 1581, c. 105, against Papists, must refer to this Act, 1572, c. 46, among others, when it narrates that ‘‘sindrie per- sons, disobeyeris of his hieness autho- ritie, for not “giving the Confession of their Faith, conform to the Acts of Parliament, has theirthrow tint their benefices, ipso facto.” 213 Eliz. c. 12. For this statute, which passed in 1558, thirteen years before its Scottish counterpart, see the appendix to a subsequent chapter, where a summary of the English prin- ciples of law derived from the cases founded upon it is given. Any evidence of the approximation in matters of faith between the two countries at that early time is interest- ing. We find Maitland writing to Cecil immediately after the Parliament of 1560, ‘‘ begging to know if there be anything in the Confession of Faith which he mislikes.” — State Papers, 13th Sept. 1560. And while that Par- liament was still sitting, the English envoy writes of Knox, Goodman, and the ministers, ‘‘I have talked with them all, to search their opinions, how a uniformity might be had in opinions in both these realms. They seem willing that it so were: many commodities are alleged that might ensue thereof. Howbeit I find them so severe in that they profess, so loath to remit anything of that they have re- ADMINISTRATION OF THE CREED. 33 Meantime, however, the Confession had evidently become not only a confession, but a standard, and even a test—and a test, too, to be enforced by subscription. It will be observed also that this statute speaks of doctrine repugnant to “ any of the said articles of religion,” instead of doctrine contrary to “the Evangel received and approved as the heads of the Confession do express.” A farther step seems taken in the very next Act, already referred to; for while this Act enforc- ing subscription (c. 46) only relates to ministers, the Act 47 of the same Parliament declares “that none shall be repute as loyal and faithful subjects to our said sovereign lord or his autho- rity, but be punishable as rebellers and gainstanders of the same, which shall not give their confession, and make their profession of the said true religion.” It is not difficult to see how some things in these Acts should have been distasteful to the Scottish Church, which has always defended its members from any tyranny other than its own. It is doubtful whether it originally intended its Confession, in all its parts, to be used as a test or term of communion. It was, perhaps, meant to be a standard ; but the Church seems to have intended to keep its standard in its: own hands, educating the people indivi- dually, until the weak in faith grew up to the full measure of the true and holy Church. And the year 1567, which saw the establishment of the Church, had produced also the statute “declaring and grant- ing” jurisdiction to it.1 The Church had, of course, exercised it, without civil sanction, for the seven years before; and it now claimed it, in no humble tone, as “justly appertaining to the true Church and immaculate spouse of Jesus Christ.” But the Parliament was cautious in its enactment. It “de- clared and granted it,” using two terms, the distinction be- cetved, that I see little hope thereof.” 1 Acts of the Parliaments of Scot- —Knox, vi. 119. The same project land (Thomson), iii. 24. Calderwood. was renewed at the next great critical Keith. Repeated in the Act 1579, period, 1567.—See Froude’s History, c. 69. ix. 22. 34 THE SCOTTISH CONFESSION. 1560 AND 1567. tween which split the Church in sunder in the nineteenth century ; and of this jurisdiction it says, that it “ consists and stands in preaching of the true word of Jesus Christ, correc- tion of manners, and administration of holy sacraments.” This definition was not satisfactory to the Church, even when joined with the very strong declaration which follows, “ that there is no other face of kirk nor other face of religion than is presently by the favour of God established within this realm ; and that there be no other jurisdiction ecclesiastical acknow- ledged within this realm other than that which is and shall be within the same Kirk, or that which flows therefrom con- cerning the premises.” Accordingly, the remainder of the Act contains a commission to several laymen—Maitland being one—and ministers, of whom was Knox—“ to search furth more specially, and to consider what other special points or clauses should appertain to the jurisdiction, privilege, and authority of the said Kirk.” This, however, procured nothing of note in the way of legislation. But a very important constitutional Act, “Anent the king’s oath, to be given at his coronation,” was passed at the same crisis of 1567; by which the kings of Scotland not only swore that “during the whole course of their lives they shall serve the Eternal God,” and shall “ main- tain the true religion of Christ Jesus,” but that “out of their lands and empire they shall be careful to root out all heretics and enemies to the true worship of God, that shall be convict by the true Kirk of God of the foresaid crimes.”! This was precisely the footing on which the Church desired to have the matter; and the Assembly of 1570 presented “ Articles per- taining to the jurisdiction of the Church,” of which the first is, “That the Church have the judgment of true and false religion or doctrine, heresies or siclike, annexed to the preach- ing of the word and ministration of the sacraments.”? But no distinct response was made. Morton’s Acts in 1572, as 1 Statute 8 of Parliament 1567. 2 Book of the Universal Kirk, 124 Statute 6 had defined the true Kirk. (twenty-second General Assembly). JURISDICTION IN HERESY. 35 we have seen, rather take these matters into the jurisdiction of civil statute. And the Act in 1579,! when the Church was again in power, is conceived in the same terms which we have quoted from that of 1567. The Church was left to claim and exercise this more special jurisdiction itself, as it does abundantly in the records of Assembly and in the Books of Discipline; and the strongest statutory recog- nition of the ecclesiastical jurisdiction in matters of creed and heresy is the indirect declaration embodied in the Act 1592, c. 116, by which the authority of the different Presby- terian Assemblies is established, and which provides “ that the 129th Act of the Parliament holden at Edinburgh May 22, 1584” (which was an Act of Supremacy over Estates Spiritual and Temporal), “ shall nowise be prejudicial nor derogate any- thing to the privilege that God has given to the spiritual office-bearers in the Kirk, concerning heads of religion, matters of heresy, excommunication, collation or deprivation of minis- ters, or any suchlike essential censures, specially grounded and having warrant of the Word of God.” But whether by the assumption of the Church, or the acquiescence of the State, or the inference contained in the Acts which the Parliament did pass, it was early settled that the Church had complete and primary jurisdiction—possibly, even, as in later times has been conceded, exclusive jurisdiction?—in matters of doctrine and heresy. And the State proceeded—e.g., by the Acts 1572, ec. 53, and 1593, c. 164—to annex civil penalties to the eccle- siastical judgments, giving power, however, to those whom the Church sought to punish by the secular sword, “to propone their lawful defences.” Meantime, while the Church, without relying much on statute, cherished the Confession and cared for doctrine, the civil power, in the more rigid and formal way competent to it, 1 Act 69 of James VI. (sixth Par-* Jdegiwm) in the Act 1592, be intended liament). to include (inaccurately) the sense of 2 Can the word ‘‘ privilege” (privi- exclusive or ‘‘ privative jurisdiction” ? 36 THE SCOTTISH CONFESSION. 1560 AND 1567. moved steadily in the same direction. It had declared the Confession to be grounded on the Word of God, and those who received it to be the true Church ;! it had bound the king? to profess it, and with him all judges and members of courts of justice ;° and it now declared that all subjects who did not do so should be reputed disloyal,* and that all ministers who did not do so formally should be deprived of their benefices.° Nor can it be said that either State or Church ever receded from the position which they had thus taken up, until the vener- able Scottish Confession was superseded by our present Creed of Westminster. The Act 1581, c. 99, and that of 1592, c. 116, by which the present Presbyterian order was statutorily fixed or recognised, both imply what had been done before, and confirm the former Acts. The struggles between the State and the Church, or between statesmen and churchmen, were ceaseless; but they never touched upon any question of doctrine proper, nor drew into question the Confession of the Faith of 1560. We cannot follow the changes of the time ; nor in particular do we propose to go into the new era when the Scottish Church, by successive national covenants, gave form and body to the pious patriotism of its members. It is only necessary to remark. that these engagements proceeded upon, and expressly bound the people to, the ancient creed with which the history began. Thus there is a document which fills a large space in our history as the National Covenant. It was originally signed by James VI. in 1580, and thence took its name of the King’s Confession of Faith, though as frequently called the Negative Confession, from being chiefly a repudia- tion of supposed errors. It was repeatedly commanded, both by the king and the Assembly, to be imposed upon all ranks and classes of the realm, laymen as well as ministers; and amid the subsequent struggles between the Presbyterian and Epis- 1 1567, ¢. 3. 2 1567, c. 8. puritie of religion and doctrine now 3 1567, c. 9: ** None to be received presently established.” to bear public office [removeable] of 4 1572, c. 47. judgment, but such as profess the 5 1572, c. 46. THE CONFESSION IN THE COVENANTS. 37 copalian parties of the Church for several generations, it was held to by the latter party as well as by the former. It is, therefore, eminently a national and historical document; and the opening paragraph is one of the most characteristic of the old religion of Scotland that could be quoted. Yet this, the corner-stone of all the covenants, is nothing but a renewed adherence to the old Confession. “ We, all and every one of us underwritten, protest that, after long and due examination of our consciences in matters of true and false religion, we are now thoroughly resolved in the truth by the Word and Spirit of God. And therefore we believe with our hearts, con- fess with our mouths, subscribe with our hands, and con- stantly affirm, before God and the whole world, that this only is the true Christian faith and religion, pleasing God and bringing salvation to man, which is now, by the mercy of God, revealed to the world by the preaching of the blessed Evangel, and is received, believed, and defended by many and sundry notable Kirks and realms, but chiefly by the Kirk of Scotland, the king’s majesty, and three Estates of this realm, as God’s eternal truth, and only ground of our salvation; as more particularly is expressed in the Confession of our Faith, stablished and publicly confirmed by sundry Acts of Parlia- ment, and which now of a long time hath been openly pro- fessed by the kine’s majesty, and whole body of his realm, both in burgh andland. To the which Confession we willingly agree in our consciences, in all points, as unto God’s undoubted truth and verity, grounded only upon His written Word.” ? We have here acceptance of the creed by all—acceptance of it in all points—acceptance of it as the personal faith of the individual—acceptance of it expressed in formula and certified by subscription—all demanded, under appropriate penalties, by both Church and State: We need trace the matter no farther. 1 Mr Gladstone instances this as the Reformation.—State in its Rela- one of the most complete and extreme tions with the Church, ii. 123. illustrations of private judgment since 38 THE SCOTTISH CONFESSION. 1560 AND 1567. Through all the fluctuations of this first century of Scottish Church history, under presbyters, bishops, or superintendents, the Scottish Confession uttered by Knox to Parliament in “the beginning of the Evangel” remained the only creed which was fully acknowledged by both State and Church.’ It is true that in 1616 the Church, then fully Episcopal, ordained that a new Confession, engrossed in the Acts of Assembly, should be universally received and subscribed in the king- dom; and this creed, somewhat more Calvinistic than that of Knox, must have had a certain authority for some years. At the enthusiastic Presbyterian Revolution in 1638, however, all the Acts of these Episcopal Assemblies were rescinded; and when the Episcopal form of government was brought back after the Restoration, the Confession of 1616 was forgotten, and the old Confession of 1560 was restored.” was to supersede it, and to become the doctrinal standard of The new creed which modern Scotland, was to come into existence in a different way. 1 In the year 1616, about the time when King James’s Episcopacy had attained undisputed sway, his ma- jesty’s commissioners proposed to the Assembly, among other resolutions, “That a true and simple Confession of Faith be set down, to the which all shall swear, before they be admitted to any office in Kirk or commonweil, and all students in colleges.” The proposal was agreed to; and a new Confession of Faith, penned by Mr John Hall and Mr John Adamson, was presented to the Assembly, sanctioned by them, and was ordered to be'revised before being printed. Bishop Russell states that this compend is ‘‘remark- able at once for its orthodoxy and mo- deration.” It is as.strictly Calvinistic, and as distinctly anti-Romanist, as that of Knox, which indeed it seems not to have opposed, being intended rather, as was surmised, to correct the Nega- tive Confession or Covenant of 1580, by omitting (says the Presbyterian historian) ‘‘many points of super- stition damned there.’? Calderwood, who gives it in full, fell at this time under the displeasure of the king for his opposition to some ‘* points,” introduced by the Articles of Perth; and Jaines’s discourse to him on the 12th July 1617 is interesting, when we remember the new creed re- cently brought in: ‘‘ Hear me, Mr Calderwood. I have been an older keeper of General Assemblies than you. A General Assembly serves to preserve doctrine in purity from error and heresy, the Kirk from schisme; to make Confessions of Faith, to put up petitions to the king and Parlia- ment. But as to matters of order, rites, and things indifferent in Kirk policy, they may be concluded by the king,” &c.—Calderwood, vii. 226, 233, and 262; and Book of the Universal Kirk, 595. 2 Test Act, 1681.-—See infra. APPENDIX. 39 APPENDIX TO CHAPTER I. NOTE A. THE SCOTTISH CONFESSION, AS RATIFIED IN 1560. The Confession of the Faith professed and believed by the Protes- tantis within the realme of Scotland, publisched by thame in Parliament, and by the KEstatis thareof ratifeit and aprovit, as holesome and sound doctrine, grounded upoun the infallibll treuthe of Godis Word. MarTueEl xxiy.: And this glaid tydings of the kingdome sall be preiched throw the haill world, for a witnes unto all natiounis, and then sall the end cum. The Preface. The Estaites of Scotland, with the inhabitants of the same, professing Christ Jesus his holy Evangell, to thair naturall countreymen, and unto all uthers realmes and natiouns, professing the same Christ Jesus with thame, wissch grace, mercy, and peice from God the Father of our Lord Jesus Christ, with the spirit of rychteous jugement, for salutatioun. Lang have we thristed (dear brethren) to have notified unto the warld the soum of that doctrine quhilk we profes, and for the quhilk we have susteined infamy and danger. But sick hes been the rage of Sathan against us, and against Christ Jesus his eternall verity laitly borne among us, that to this day na tyme hes bene granted unto us to cleir our con- sciences, as maist gladlie we wald have done; for how we have bene tossed a haill yeir past, the maist parte of Europe (as we suppois) dois under- stand. Bot seing that of the infinite gudeness of our God (quho never sufferethe His afflicted utterly to be confounded) above expectation, we have obteined sum rest and liberty, we culd not bot set furth this breve and plane Confessioun of sick doctrine as is proponed unto us, and as we beleve and profes, partely for satisfactioun of our brethren, quhos hairts we dout not have bene and yet ar wounded by the despytfull raylling of sick as yet have not learned to speik well; and partely for stopping of the mouths of impudent blasphemers, quho bauldlie condemne that quhilk they have nouther hard nor understand. Not that we juge that the canckerit malice of sick is abill to be cured by this simple Confessioun ; no, we knaw that the sweit savour of the Evangell is and sall be deyth to the sones of perditioun. But we have cheif respect to our waik and 40 THE SCOTTISH CONFESSION. 1560 AND 1567. infirme brethrein, to quhome we wald communicat the bottom of our hairts, least that they be trubled and caryed away be diversities of rumours quhilk Satan sparseth contrair us, to the defeating of this our godlie in- terpryis: Protesting, That if any man will note in this our Confessions any artickle or sentence repugning to Godis holie Word, that it wald pleis him, of his gentilnes, and for Christiane cheriteis saik, to admonische us of the same in writte, and we of our honours and fidelitie do promeis unto him satisfactioun fra the mouthe of God—that is, fra His holie Scriptures, or ells reformatioun of that quhilk he sall prove to be amiss, For God we tak to record in our,consciences, that from our hairts we abhore all sectis of heresie, and all teichers of erroneous doctrine; and that with all humilitie we embrace the puritie of Christ’s Evangell, quhilk is the onelie fude of our saulls; and tharefore so precious unto us, that we ar deter- mined to suffer the extremitie of warldlie danger, rather than that we will suffer ourselvis to be defrauded of the same: for heirof we ar maist certanely perswaidit, That quhosoever denys Christ Jesus, or is aschamed of Him, in presence of men, sall be denyed befor the Father, and befor His holy angells; and thairfoir, be the assistance of the michtie Spirit of the same Lord Jesus, we firmlie purpois to abyde to the end in the Confession of this our Fayth. Chapters, 1, Of God. 2. Of the Creation of Man. 3. Of Original Sin. 4, Of the Revelation of the Promise. 5. The Continuance, Increase, and Preservation of the Kirk :— We maist constantly beleeve that God preserved, instructed, multiplied, honoured, decored, and from death called to life, His Kirk in all ages fra Adam till the cumming of Christ Jesus in the flesh. For Abraham He called from his father’s cuntry, him He instructed, his seede He multiplied, the same He marveilouslie preserved, and mair marveilouslie delivered, from the bondage and tyrannie of Pharaoh; to them He gave His lawes, constitutions, and ceremonies ; them He possessed in the land of Canaan ; to them after judges and after Saul He gave David to be king, to whome Hee made promise, that of the fruite of his loynes suld ane sit for ever upon his regal seat. To this same people from time to time He sent pro- phets, to reduce them to the right way of their God, from the quhilk oftentimes they declined be idolatry. And albeit for their stubborne contempt of justice, He was compelled to give them in the hands of their enimies, as befoir was threatned be the mouth of Moses, in sa meikle that the haly cittie was destroyed, the temple burnt with fire, and the haill land left desolate the space of lxx zears: zit of mercy did He reduce them againe to Jerusalem, where the cittie and temple were re-edified, and they against all temptations and assaultes of Sathan did abide till the Messias came, according to the promise. 6. Of the Incarnation of Christ Jesus. APPENDIX. 4 41 7. Why it behoved the Mediator to be very God and very Man. 8. Election. 9. Christ’s Death, Passion, Burial, &c. 10. Resurrection. 11, Ascension. 12, Faith in the Holy Ghost. 13. The Cause of Gude Warkes. 14, What Warkes ar reputed gude before God. 15, The Perfectioun of the Law, and Imperfectioun of Man. 16. Of the Kirk :— As we believe in ane God—Father, Sonne, and Halie Ghaist—sa do we maist constantly believe, that from the beginning there hes bene, now is, and to the end of the warld sall be, ane Kirk ; that is to say, ane company and multitude of men chosen of God, who richtly wor- ship and imbrace Him, be trew faith in Christ Jesus, quha is the only Head of the same Kirk, quhilk alswa is the bodie and spouse of Christ Jesus ; quhilk Kirk is catholike, that is, universal, because it conteinis the elect of all ages, all realmes, nations, and tounges, be they of the Jewes or be they of the Gentiles, quha have communion and societie with God the Father and with His Son Christ Jesus, throw the sanctificatioun of His Haly Spirit ; and therefore is it called the communion, not of pro- phane persounes, bot of sancts, quha, as citizenis of the heavenly Jeru- salem, have ye fruitioun of the maist inestimable benefites, to wit, of ane God, ane Lord Jesus, ane faith, and of ane baptisme: out of the quhilk Kirk there is nouther lyfe nor eternal felicitie. And therefore we utterly ab- horre the blasphemie of them that affirme that men quhilk live according to equitie and justice sall be saved, quhat religioun that ever they have professed. For as without Christ Jesus there is nouther life nor salva- tioun, so sall there nane be participant thereof bot sik as the Father hes given unto His Sonne Christ Jesus, and they that in time cum unto Him, avowe His doctrine, and beleeve into Him (we comprehend the children with the faithful parentes). This Kirk is invisible, knawen onelie to God, quha alane knawis whom He hes chosen, and comprehends alsweil (as said is) the elect that be departed, commonlie called the Kirk trium- phant, and they that zit live and fecht against sinne and Sathan, as sall live hereafter. 17. The Immortalitie of the Saules. 18. Of the Notes be the quhilk the Trewe Kirk is decerned fra the False, and quha sall be Judge of the Doctrine :— Because that Sathan from the beginning hes laboured to deck his pestilent synagoge with the title of the Kirk of God, and hes inflamed the heartes of cruel murtherers to persecute, trouble, and molest the trewe Kirk and members thereof, as Cain did Abel, Ismael Isaac, Esau Jacob, and the haill priesthead of the Jewes Christ Jesus him- selfe and His apostles after Him; it is ane thing maist requisite that the true Kirk be decerned fra the filthie synagogues be cleare and perfite notes, least we, being deceived, receive and imbrace to our 42 THE SCOTTISH CONFESSION. 1560 AND 1567. awin condemnatioun the ane for the uther. The notes, signes, and assured takens whereby the immaculate spouse of Christ Jesus is knawen fra the horrible harlot, the Kirk malignant, we affirme are neither an- tiquitie, title usurped, lineal descente, place appoynted, nor multitude of men approving ane error ; for Cain in age and title was preferred to Abel and Seth ; Jerusalem had prerogative above all places of the earth, where also were the priests lineally descended fra Aaron. And greater number followed the scribes, Pharisies, and priestes, then unfainedly beleeved and approved Christ Jesus and His doctrine ; and zit, as we suppose, no man of sound judgement will grant that ony of the forenamed were the Kirk of God. The notes, therefore, of the trew Kirk of God we beleeve, con- fesse, and avow to be, first, the trew preaching of the Word of God, into the quhilk God hes revealed Himselfe unto us, as the writings of the pro- phets and apostles dois declair; secondly, the right administration of the sacraments of Christ Jesus, quhilk mon be annexed unto the word and promise of God, to seale and confirme the same in our hearts ; last, eccle- siastical discipline uprightlie ministred, as God his Word prescribes, whereby vice is repressed and vertew nurished. Wheresoever, then, thir former notes are seene, and of ony time continue (be the number never so fewe above two or three), there without all doubt is the trew Kirk of Christ, who, according unto His promise, is in the midst of them. Not that universal, of quhilk we have before spoken, bot particular, sik as was in Corinthus, Galatia, Ephesus, and uther places in quhilk the min- istrie was planted be Paul, and were of himselfe named the Kirks of God ; and sik Kirks we, the inhabitantis of the realme of Scotland, professoris of Christ Jesus, professis our selfis to have in our citties, townes, and places reformed, for the doctrine taucht in our kirkis is conteined in the writen Worde of God—to wit, in the buiks of the Auld and New Testamentis, in those buikis, we mean, quhilk of the ancient have beene reputed canon- ical. In the quhilk we affirme, that all thingis necessary to be beleeved for the salvation of mankinde is sufficiently expressed. The interpreta- tion quhairof, wee confesse, neither appertaines to private nor publick persone, neither zit to ony Kirk, for ony preheminence or prerogative, personalle or localle, quhilk ane hes above ane uther ; bot apperteines to the Spirite of God, be the quhilk also the Scripture was written. When controversie, then, happinis for the right understanding of ony place or sentence of Scripture, or for the reformation of ony abuse within the Kirk of God, we ought not sa meikle to luke what men before us have said or done, as unto that quhilk the Halie Ghaist uniformelie speakes within the body of the Scriptures, and unto that quhilk Christ Jesus himselfe did and commanded to be done. For this is ane thing univer- sallie granted, that the Spirite of God, quhilk is the Spirite of Unitie, is in nathing contrarious unto Himselfe. Gif, then, the interpretation, determination, or sentence of ony doctor, kirk, or councel, repugne to the plaine word of God, written in ony uther place of the Scripture, it is a thing maist certaine, that there is not the true understanding and mean- ing of the Haily Ghaist, although that councels, realmes, and nations have APPENDIX. 43 approved and received the same. For we dare not receive nor admit ony interpretation quhilk repugnes to ony principal poynt of our faith, or to ony uther plaine text of Scripture, or zit unto the rule of charitie. 19. The Authoritie of the Scriptures:— As we beleeve and confesse the Scriptures of God sufficient to in- struct and make the man of God perfite, so do we affirme and avow the authoritie of the same to be of God, and nether to depend on men nor angels. Wee affirme, therefore, that sik as allege the Scripture to have na uther authoritie bot that quhilk it hes received from the Kirk to be blasphemous against God, and injurious to the trew Kirk, quhilk alwayes heares and obeyis the voyce of her awin spouse and pastor, bot takes not upon her to be maistres over the samin. 20. Of General Councels, of their Power, Authoritie, and Cause of their Convention :— As we do not rashlie damne that quhilk godly men, assembled together in general cotncel lawfully gathered, have proponed unto us, so with- out just examination dare we not receive quhatsoever is obtruded unto men under the name of general councels; for plaine it is, as they wer men, so have some of them manifestlie erred, and that in matters of great weight and importance. So farre, then, as the councel provis the determination and commandement that it gives, bee the plaine Worde of God, so far do we reverence and imbrace the same. Bot gif men, under the name of a councel, pretend to forge unto us new artickles of our faith, or to make constitutionis repugning to the Word of God, then utterlie we must refuse the same as the doctrine of devils, quhilk drawis our saules from the voyce of our onlie God, to follow the doctrines and constitutiones of men. The cause, then, quhy that general councellis convened was nether to make ony perpetual law quhilk God before had not maid, nether zit to forge new artickles of our beleife, nor to give the Word of God authoritie, meikle les to make that to be His word, or zit the trew interpretation of the same, quhilk was not before, be His haly will, expressed in His Word ; bot the cause of councellis (we meane of sik as merite the name of councellis) wes partlie for confutation of heresies, and for giving publick confession of their faith to the posterite following, quhilk baith they did by the authoritie of God’s written Word, and not by ony opinion or prerogative that they could not erre be reason of their general assemblie: and this we judge to have beene the chiefe cause of general councellis. The uther was for gude policie and ordour to be constitute and observed in the Kirk, quhilk (as in the house of God) it becummis all things to be done decently and into ordour. Not that we think that ane policie and ane ordour in ceremonies can be appoynted for all ages, times, and places ; for as ceremonies (sik as men have devised) ar bot temporal, so may and aucht they to be changed, when they rather foster superstition then that they edifie the Kirk using the same. 21. Of the Sacramentes, 22. Of the richt Administration of the Sacraments. 23, To whome Sacraments appertaine. 44 THE SCOTTISH CONFESSION. 1560 AND 1567. 24, Of the Civil Magistrate :— We confesse and acknawledge empyres, kingdomes, dominiouns, and citties to be distincted and ordained be God; the powers and autho- ritie in the same, be it of emperours in their empyres, of kings in their realmes, dukes and princes in their dominions, and of uthers magistrates in fre citties, to be God’s haly ordinance, ordained for manifes- tatioun of His awin glory, and for the singular profite and commoditie of mankind: so that whosoever goeth about to take away, or to con- found the haill state of civile policies, now long established, we affirme the same men not onely to be enimies to mankinde, but also wick- edly to fecht against God his expressed will. Wee farther confesse and acknawledge that sik persouns as are placed in authoritie ar to be loved, honoured, feared, and halden in most reverent estimatioun, because that they are the lieutennents of God, in whose sessiouns God himself dois sit and judge ; zea, even the judges and princes themselves, to whom be God is given the sword, to the praise and defense of gude men, and to revenge and punish all open malefactors. Mairover, to kings, princes, rulers, and magistrates wee affirme that chieflie and most principallie the conserva- tion and purgation of the religioun appertaines, so that not onlie they are appointed for civil policie, bot also for maintenance of the trew religioun, and for suppressing of idolatrie and superstitioun whatsoever; as in David, Josaphat, Ezechias, Josias, and uthers highlie commended for their zeale in that caice, may be espyed. And therefore wee confesse and avow that sik as resist the supreme power, doing that thing quhilk appertains to his charge, do resist God his ordinance, and therefore cannot be guilt- les. And farther we affirme that whosoever denies unto them their ayde, counsel, and comfort, quhiles the princes and rulers vigilantly travel in execution of their office, that the same men deny their help, support, and counsel to God, quha be the presence of His lieutennent dois crave it of them. 25. The Guiftes freelie given to the Kirk. Arise, O Lord! and let Thy enimies be confounded, let them flee from Thy presence that hate Thy godliename. Give Thy servands strength to speake Thy word in bauldnesse, and let all natiouns cleave to Thy trew knawledge. Amen. 5 Thir Acts and Artickles ar red in the face of Parliament, and rati- fyed be the three Estaitis of this Realm, at Edinburgh the 17 day of August, the zeir of God 1560 zeiris. (Note.—The above Confession and the following statutes, printed from one of the older editions of the Scots Acts, are-collated with Mr Thomson’s Acts of the Parliaments of Scotland.) APPENDIX. 45 NOTE B, THE ACTS OF 1560 AS RE-ENACTED IN 1567. 1, Anent the Abolishing of the Pape, and his usurped Authoritie (Act 1567, c. 2). : Our soveraine lord, with advise of his dearest regent and three Estaitis of this present Parliament, ratifyis and apprevis the Act under-written, maid in the Parliament haldin at Edinburgh the 24 day of August, the zeir of God 1560 zeiris. And of new in this present Parliament, statutis and ordainis the said Act to be as ane perpetual law to all our soveraine lordis lieges in all times cumming. Of the quhilk the tenour followis: Item, the three Estaitis understanding that the jurisdictioun and authoritie of the Bischop of Rome, called the Pape, used within this realme in times bypast, hes not onely bene contumelious to the Eternal God, but also very hurtful and prejudicial to our soveraine’s authoritie and commoun weill of this realme. Theirfoir has statute and ordained that the Bischop of Rome, called the Pape, have na jurisdictioun nor authoritie within this realme in ony time cumming. And that nane of our said soveraine’s subjects, in ony times heirafter, sute or desire title or richt of the said Bischop of Rome or his sait to ony thing within this realme, under the paines of barratrie—that is to say, proscription, banishment, and never to bruke honour, office, nor dignitie within this realme. And the contra- veners heirof to be called before the justice or his deputes, or before the Lords of the Session, and punisched therefoir, conforme to the lawes of this realme. And the furnischers of them with finance of money, and purchassers of their title of right, or maintainers or defenders of them, sall incurre the samin paines, And that na bischop nor uther prelat of this realme use ony jurisdiction in time cumming be the said Bischop of Rome’s authoritie, under the paine foirsaid. And therefoir of newe de- cernis and ordainis the contraveners of the samin, in ony time hereafter, to be punished according to the paines in the foirsaid Act above rehearsed. 2. Anent the Annulling of the Actes of Parliament made against God his Word, and Maintenance of Idolatrie in ony Times by- past (Act 1567, ¢. 3). Item, Our soveraine lord, with advise of his dearest regent and three Estaitis of this present Parliament, ratifyis and apprevis the Acte under- written, made in the Parliament haldin at Edinburgh the 24 day of August, the zeir of God ane thousand five hundreth threescore zeiris. And of new in this present Parliament statutis and ordainis the said Act to be as a perpetual law to all our soveraine lordis liegis in all times cumming. Of the qubilk the tenour followis: The quhilk day, forsameikle as there hes beene divers and sinnrie Acts of Parliament made in King James 46 THE SCOTTISH CONFESSION. 1560 AND 1567. the First, Secund, Thrid, Fourt, and Fift times, kinges of Scotland for the time, and als in our soveraine ladie’s tyme, not aggreing with God’s haly Word, and be them divers persones tuke occasion to maintaine idolatrie and superstition within the Kirk of God, and repressing of sik persones as were professours of the said Word, quhairthrow divers inno- cents did suffer. And for eschewing of sik inconvenientes in time cum- ming, the three Estaitis of Parliament hes annulled, and declared all sik Acts made in times bypast, not agreing with God his Word, and now contrary to the Confessioun of Faith according to the said Word, publish- ed in this Parliament, to be of nane availe, force, nor effect. And de- cernis the said Acts, and every ane of them, to have na effect nor strength in time to cum, bot the samin to be abolished and extinct for ever, in sa far as any of the foirsaidis Acts are repugnant and contrarie to the Confessioun of Faith and Word of God foirsaid, ratyfied and approved be the Estaites in this present Parliament. And therefore decernis and ordainis the contraveners of the samin Act, in ony time hereafter, to be punisched according to the lawes. Of the quhilk Confession of the Faith the tenour followes. (In twenty-five chapters, as above printed, but excepting the Salutation and the Preface.) 3. Anent the Messe abolished, and Punishing of all that hearis or sayis the samin (Act 1567, c. 5). Item, Our soveraine lord, with advise of his dearest regent and the three Estaits of this present Parliament, ratifyis and apprevis the Act under-written, maid in the Parliament halden at Edinburgh the 23 day of August, the zeir 1560 zeires. And of new in this present Par- liament statutis and ordainis the said Act to be as an perpetual law to all our soveraine lord’s lieges in all times to cum; of the quhilk the tenour followes: The quhilk day, forsameikle as Almichty God, be His maist trew and blessed Word, hes declared the reverence and honour quhilk suld be given unto Him ; and be His Sonne Jesus Christ hes declared the trew use of the sacraments, willing the same to be used according to His will and Word. Be quhilk it is notour and perfitelie knawen that the sacramentes of baptisme and of the bodie and bloud of Jesus Christ hes bene in all times bypast corrupted be the Papistical Kirk and be their usurped ministers. And presentlie, notwithstanding the re- formatioun alreadie made, according to God’s Word, zit not the less there is sum of the said Papis Kirk that stubburnely perseveris in their wicked idolatrie, sayand messe and baptizand conforme to the Papis Kirk, prophanand therethrow the sacraments foirsaides in quiet and secreete places, therethrow nouther regardand God nor His holy Word. Therefoire it is statute and ordained in this present Parliament that na maner of persoun or personnis, in onie time cumming, administrat ony of the sacraments foirsaids, secreetly or ony uther maner of way, but they that APPENDIX. 47 are admitted and havand power to that effect. And that na maner of persoun or persounis say messe, nor zit hear messe, nor be present theirat, under the paine of confiscatioun of all their gudis, movabil and unmovabil, and punishing of their bodyes, at the discretioun of the magistrat within quhais jurisdictioun sik personnis happinnis to be apprehended, for the first fault ; banishing of the realme for the second fault ; and justifying to the death for the thrid fault. And ordainis all schireffes, stewards, baillies, and their deputes, provestes and baillies of burrowes, and uthers judges quhatsumever within this realme, to take diligent sute and inquisitioun within their bounds quhair ony sil: usurped ministerie is used, messe saying, or they that beis present at the doing thereof, ratifyand and approovand the samin, and take and apprehend them to the effect that the paines above written may be execute upon them. And therefore of new decernis and ordaines the contraveneris of the samin, in ony tyme heirafter, to be punished according to the paines of the aforesaid Acte above rehearsed. NOTE C. ACTS DECLARING THE TRUE CHURCH, AND AS TO THE KING’S OATH. 1. Anent the Trew and Haly Kirk, and of them that ar declared not to be of the samin (Act 1567, c. 6). Item, Forasmeikle as the ministers of the blessed Evangel of Jesus Christ, whom God of His mercie hes now raised up amangst us, or heir- after sall rayse, agreeing with them that now livis-in doctrine and administratioun of the sacraments, and the peopil of this realme that professis Christ as He now is offered in His Evangel, and do commu- nicat with the haly sacraments (as in the reformed Kirkes of this realme they are publicklie administrat) according to the Confessioun of the Faith: Our soveraine lord, with advise of my lord regent and three Estaitis of this present Parliament, hes declared and declaris the fore- said Kirk to be the onely true and halie Kirk of Jesus Christ within this realme. And decernis and declaris that all and sindrie, quha outher gainsayis the word of the Evangel received and approved, as the heades of the Confessioun of Faith professed in Parliament of before, in the zeir of God 1560 zeires, as also specified in the Actes of this Parlia- ment mair particularlie dois expresse, and now ratifyed and approoved in this present Parliament, or that refusis the participatioun of the halie sacramentes as they are now ministrat, to be na members of the said Kirke within this realme now presently professed, sa long as they keep them- selves sa divided fra the society of Christ’s bodie. 48 THE SCOTTISH CONFESSION. 1560 AND 1567. 2. Anent the King’s Aith, to be given at his Coronation (Act 1567, C58): Item, Because that the increase of vertew and suppressing of idolatrie craves that the prince and the people be of ane perfite religioun, quhilk of God’s mercie is now presently professed within this realme, theirfore it is statute and ordained be our soveraine lord, my lord regent, and three Estaites of this present Parliament, that all kinges and princes, or magistrates whatsoever halding their place, quhilkis hereafter in ony time sall happen to reigne and beare rule over this realme, at the time of their coronatioun and receipt of their princely authoritie, make their faithful promise be aith, in presence of the Eternal God, that induring the haill course of their lyfe they sall serve the samin Eternal God to the uttermost of their power, according as He hes required in His maist haly Word, reveiled and contained in the New and Auld Testaments. And according to the samin Worde sall mainteine the trew religion of Jesus Christ, the preaching of His halie Word, and dew and richt ministration of the sacraments now received and preached within this realme; and sall abolish and gainstand all fals religioun contrare to the samin; and sall rule the peopil committed to their charge according to the will and commaund of God, reveiled in His foresaide Word, and according to the lovabil lawes and constitutions received in this realme na wise repugnant to the said Word of the Eternal God ; and sall procure to the uttermaist of their power, to the Kirk of God and haill Christian peopil, trew and perfite peace in all time cumming. The richtis and rentis, with all just priviledges of the Crowne of Scotland, to preserve and keip inviolated, nouther sall they transfer nor alienate the samin. They sall forbid and represse, in all estaites and degries, reif, oppression, and all kinde of wrang. In all judgementes they sall command and procure that justice and equitie be keiped to all creatures, without exception, as the Lord and Father of all mercyis be merciful to them. And out of their landes and empyre they sall be careful to rute out all heretikes and enimies to the trew worship of God, that sall be convict be the trew Kirk of God of the foirsaidis crymes. And that they sall faithfullie affirme the things above written be their solemne aith. Between these Acts stands the Statute 1567, c. 7. That the examination and admission of ministers within this realm be only in power of the Kirk, now openly and publicly professed within the same ; the presentation of lawit patronages always reserved to the just and ancient patrons. APPENDIX. 49 NOTE D. Acts oF 1572. 1. That the Adversaries of Christis Evangell sall not injoy the Patrimonie of the Kirk (Act 1572, c. 46). Forsameikle as the conservation and purgation of the religion chiefly perteines to the Christian and godlie kings, princes rewlars, and magistrats, and that it is maist requisite that the Kirk within this realme be served be godlie persones of sound religion, obedient to the authoritie of the king’s majestie our soveraine lord, it is theirfoir concluded, statute, and ordained be his majestie, with advise of his said regent, the three Estaites, and haill bodie of this present Parliament, that everie person quha sall pretend to be an minister of God’s Word and sacraments, or quha presentlie dois, or sall pretend to have, and bruik ony benefice, use of the fruites, stipend, pension, or portion foorth of benefice, and ar not alreadie under the discipline of the trew Kirk and participates not with the sacramentes theirof, sall in the presence of the archbischop, bischop, superintendent, or commissioner of the diocese or province quhair he hes or sall have the ecclesiastical living, give his assent and subscrive the artickles of religion, conteined in the Actes of our soveraine lord’s Parliament, and give his aith for acknaw- ledging and recognoscing of our soveraine lord and his authoritie, and sall bring ane testimonial in writing thereupon. And openly on sum Sunne- day, in time of sermone or publick prayers in the kirk, quhair be reason of his ecclesiastical living he aucht to attend, or of the fruites quhairof he receives commoditie, reade baith the testimonial and confession ; and of new mak the said aith, within the space of ane moneth after the publication of this present Act. And gif he be foorth of the realme, within threescoir dayes after the publication heirof. And in time cumming, within ane moneth after his admission, under the paine that everie person that sall not do as is above appoynted, sall be, ipso facto, deprived, and all his ecclesiastical promotions and living sall be vacand, as gif he war then naturallie dead. And gif ony person ecclesiastical, or quhilk sall have ecclesiastical living, sall willfullie maintene ony doctrine directlie contrair or repugnant to ony of the saidis artickles, and being convened and called as followes, sall persist therein, and not revoke his error, or after his revocation sall of new affirme sik untrew doctrine, sik mainteining, affirming, and persisting sall be just cause to deprive him of his ecclesiastical living. And it sall be lauchful to them befoir quhome he is called and convened to deprive him. Quhilk sentence of deprivation pronounced, he sall be deprived indeede, and his living vacand, as gif he war naturallie deade. And that all archbischoppes, bischoppes, superintendentes, possessoures, or titulares of prellattis, be called and convened for this effect befoir the General Assemblie of the D 50 THE SCOTTISH CONFESSION. 1560 AND 1567. Kirk ; and all inferiour persones befoir the archbischoppes, bischoppes, superintendentes, or commissioneres of the diocese or provinces within the quhilkes they dwell. 2. Anent the Disobedientis whilkis salbe ressavit to our Soverane Lordis mercy and pardoun (Act 1572, ¢. 47). Item, Forsameikle as there hes bene great rebellion and disobedi- ence against our soveraine lord’s authority in time bypast, and seeing the cause of God’s trew religion and his hienesse’ authoritie foirsaid ar sa joyned as the hurt of the ane is common to baith, it is theirfoir declar- ed, statute, and ordained be our soveraine lord, with advise and con- sent of my Lord regentis grace, with the three Estaites and haill bodie of this present Parliament, that nane sall be repute as loyal and faithful subjectes to our said soveraine lord or his authoritie, bot be punishable as rebellares and gainestanderes of the samin, quhilk sall not give their confession and make their profession of the saide trewe religion. And that all sik as makis profession thereof and zit hes maid defection fra their dewe obedience aucht to our soveraine lord, sall be admonished be the pastours and ministers of the Kirk to acknowledge their offence and returne to their dewtiful obedience ; and gif they failzie therein, to be excommunicate and secluded from the societie of the Kirk, as rebellious and corrupt members, betuixt and the first day of Junij nixt to cum, And that alwaies befoir sik personnes as hes maid defection be received to our soveraine lordis mercie and favour, they sall give the confession of their faith of new, and promise to continew in the confession of the trewe religion in time cumming, mainteine our soveraine lordis authoritie; and that they sall at the uttermaist of their power fortifie, assist, and main- teine the trew preachoures and professours of Christ’s religion against quhatsumever enimies and gainestanderes of the samin; and namelie, against all sik, of quhatsumever nation, estaite, or degree they be of, that hes joyned and bund themselves, or hes assisted or assistes to set forward and execute the cruel decreittes of the Councel of Trent (quhilk maist in- juriouslie is called be the adversaries of God’s truth the Haly League), contrarie to the preachoures and trew professours of the’ Word of God. NOTE E. ACTS OF 1579. 1. Anent the Trew and Haly Kirk, and them declared to be not of the samin (Act 1579, c. 68 ; in Thomson’s Acts, c. 6, iii. 137). This is the ratification of Act 1567, c. 6 (see page 47): “ Ordaining the APPENDIX. 51 same to be here insert of new, because of sum defection and informalitie of words in default of the prenter.” We have given the corrected form in the text (p. 17, 18), and need not repeat it. It is followed by— 2. Anent the Jurisdiction of the Kirk (Act 1579, c. 69). Our soveraine lord, with advise of his three Estaites of this present Parliament, hes declared and granted jurisdiction to the Kirk, quhilk consistis ‘and stands in the preaching of the trew Worde of Jesus Christ, correction of maners, and administration of the halie sacraments, and declairis that there is na uther face of kirk, nor uther face of religion, then is presentlie be the favour of God establisched within this realm, and that there be na uther jurisdiction ecclesiastical acknowledged within this realme uther then that quhilk is and sall be within the samin Kirk, or that quhilk flowis theirfra, concerning the premisses, (Then follows the appointment of a Commission.) NOTE F. ACT RATIFYING THE PRESBYTERIAN ORDER OF THE CHURCH. 1592. Ratification of the Liberty of the Trew Kirk; of General and Synodal Assemblies ; of Presbyteries ; of Discipline; all Lawes of Idolatrie are abrogate; of Presentation to Benefices (Act 1592, c. 116).2 Our soveraine lord and Estaites of this present Parliament, following the lovabil and gude exemple of their predecessours, hes ratified and appreev- ed, and be the tenour of this present Act ratifies and apprevis, all liberties, priviledges, immunities, and freedomes quhatsumever, given and granted be his hienesse, his regentes in his name, or ony of his predecessours, to the trew and halie Kirk, presently established within this realm, and de- clared in the first Act of his hienesse’ Parliament, the twentie day of Octo- ber, the zeir of God ane thousand five hundreth threescoir ninetene zeires ; and all and quhatsumever Actes of Parliament and statutes maid of before be his hienesse and his regentes, anent the liberty and freedome of the said Kirk ; and specially the first Act of the Parliament halden at Edin- burgh the twentie-foure daie of October, the zeir of God ane thousand five hundreth fourscore ane zeires, with the haill particular Acts there mentioned, quhilk sall be als sufficient as gif the samin were here ex- 1 Inthe Acts of the Parliament (Thom- for abolisching of the Actis contrair the son, iii, 541) this Act is entitled, ‘Act Trew Religion.’ 52 THE SCOTTISH CONFESSION. 1560 AND 1567. pressed ; and all uther Acts of Parliament maid sensine in favour of the trew Kirk ; and siklike ratifies and appreivis the General Assemblies ap- pointed be the said Kirk ;. and declares that it sall be lauchfull to the Kirk and ministers, everilk zeir at the least, and oftner pro re nata as occasion and necessity sall require, to hald and keepe Generall Assem- blies, providing that the king’s majesty, or his cominissioners with them to be appoynted be his hienesse, be present at ilk Generall Assemblie before the dissolving thereof, nominate and appoynt time and place quhen and quhair the nixt Generall Assembly sall be halden. And in case naither his majesty nor his said commissioner beis present for the time in that toun quhair the said General Assembly beis halden, then and in that case it sall be lesum to the said General Assemblie, be themselves, to nominate and appoynt time and place quhair the nixt Generall Assembly of the Kirk sall be keiped and halden, as they have bene in use to do thir times bypast. And als ratifies and apprevis the synodicall and provinciall assemblies to be halden be the said Kirk and ministers twise ilk zeir, as they have bene and ar presently in use to do, within every province of this realme. And ratifies and apprevis the presbyteries and particular sessiones appoynted be the said Kirk, with the haill jurisdiction and discipline of the same Kirk, aggried upon be his majesty in conference had be his hienesse with certaine of the ministrie conveened to that effect, of the quhilkes articles the tenour followes : Maters to be intreated in Provincial Assemblies.—Thir assemblies ar constitute for weichtie maters, necessar to be intreated be mutual consent and assistance of brethren within the province, as neede requiris. This assembly hes power to handle, ordour, and redresse all thinges omitted or done amisse in the particular assemblies. It hes power to depose the office-bearers of that province for gude and just cause deserving depriva- tion ; and generally, thir assemblies hes the haill power of the particular eldershippes quhairof they are collected. Maters to be intreated in the Presbyteries—The power of the presbyteries is to give diligent laboures in the boundes committed to their charge ; that the kirkes be keeped in gude ordour ; to inquire diligently of naughty and ungodly persons, and to travel to bring them in the way againe be admonition, or threatning of Gods judgements, or be corection. It appertaines to the elderschippe to take heede that the Word of God be purely preached within their boundes, the sacramentes richtly ministered, the discipline interteined, and ecclesiastical guddes uncorruptly distributed. It belangis to this kinde of assemblies to cause the ordinances maid be the assemblies, pro- vincialles, nationals, and generals, to bee keeped and put in execution, to make constitutions, quhilk concernis to prepon in the Kirk, for decent ordour in the particular kirk quhair they governe, providing that they alter na rules maid be the provincial or general assemblies, and that they make the provincial assemblies foresaids privy of the rules that they sall make ; and to abolish constitutiones tending to the hurt of the same. It hes power to excommunicate the obstinate, formal proces being led and dew interval of times observed, Anent particular Kirks, gif they be APPENDIX. 53 lauchfully ruled be sufficient Ministers and Session.—They have power and jurisdiction in their awin congregation in maters ecclesiastical. And decernis and declaris the saids assembles, presbyteries, and sessiounes, jurisdiction and discipline thereof foresaid, to be in all times cumming maist just, gude, and godly in the selfe ; notwithstanding of quhatsum- ever statutes, actes, canone, civill, or municipal lawes made in the con- trare. To the quhilkis and every ane of them, thir presentes sall make expresse derogation. And because there ar divers Actes of Parliament maid in favour of the Papistical Kirke, tending to the prejudice of the liberty of the trew Kirk of God presently professed within this realme, jurisdiction and discipline thereof, quhilk stands zit in the buikes of the Actes of Parliament nocht abrogated nor annulled, therefore his hienesse and Estaites foresaids hes abrogated, cassed, and annulled, and be the tenour hereof abrogatis, cassis, and annullis, all Actes of Parliament maid be ony of his hienesse’ predecessoures for maintenance of superstition and idolatry, with all and quhatsumever acts, lawes, and statutes maid at ony time before the daye and dait hereof against the liberty of the trew Kirk, | jurisdiction and discipline thereof, as the samin is used and exercised within this realme., And in speciall, that part of the seventh Act of Parliament halden at Striviling the fourth day of November, the zeir of God ane thousand four hundreth fourty-three zeires, commaunding obedience to be given to Eu- genius, the Paipe for the time; the Acte maid be King James the Thrid, in his Parliament halden at Edinburgh the twenty-four day of Februar, the zeir of God ane thousand four hundreth fourscor zeires. And all utheris Actes quhairby the Paipis authority is established ; the 47 Acte of King James the Thrid, in his Parliament halden at Edinburgh the twenty day of November, the zeir of God ane thousand four hundreth threescore nine zeires, anent the Satterday and uther vigiles to be halie dayes, from even-sang to even-sang. Item, That part of the Act maid be the queene-regent in the Parlia- ment halden at Edinburgh the first day of Februar, the zeir of God ane thousand five hundreth fifty-ane zeires, giving speciall licence for hold- ing of Pasche and Zule. Item, The kingis majesty and Estaites foresaidis declaris that the second Acte of the Parliament halden at Edinburgh the xxij day of Maij, the zeir of God ane thousand five hundreth fourscoir four zeires, sall na wayes be prejudiciall nor derogate ony thing to the priviledge that God hes given to the spirituall office-bearers in the Kirk, concerning heads of religion, maters of heresie, excomunication, colla- tion or deprivation of ministers, or ony siklike essentiall censours, speciallie grounded and havand warrand of the Word of God. Item, Our soveraine lord and Estaites of Parliament foresaids abrogatis, cassis, and annullis the 20 Act of the same Parliament, halden at Edinburgh the said zeir ane thousand five hundreth fourscoir four zeires, granting commis- sion to bischoppes and utheris judges, constitute in ecclesiasticall causes, to receive his hienesse’ presentationes to benefices, to give collation there- upon, and to put ordour in all causes ecclesiasticall; quhilk his majesty 54. THE SCOTTISH CONFESSION. 1560 AND 1567. and Estaites foresaidis declaris to be expired in the selfe, and to be null in time cumming and of nane availl, force, nor effect. And therefore ordainis all presentations to benefices to be direct to the particular pres- byteries 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 foresaids presbyteries be bound and astricted to receive and admitt quhatsumever qualified minister, presented be his majesty or uther laick patrones. NOTE G. CORRESPONDENCE BETWEEN THE GENERAL ASSEMBLY AND QUEEN MARY IN 1565. The Church in 1565 had petitioned the queen that the mass be sup- pressed, and that the religion now professed be established by an Act of Parliament. “It is answered, first, for the part of her majesty’s self, that her highness is in no ways yet persuaded in the said religion, nor yet that any impiety is in the mass; and therefore believes that her loving subjects will in no way press her to receive any religion against her own conscience, which should: bring her to perpetual trouble by remorse of conscience, and therewith a perpetual unquietness ; and, to deal plainly with her subjects, her majesty neither may nor will leave the religion wherein she has been nourished and upbrought; . . . praying all her loving subjects, seeing they have had experience of her goodness, that she neither has in times past, nor yet means hereafter, to press the consciences of any man, but that they may worship God in such sort as they are persuaded to be best, that they also will not press her to offend her own conscience.” The Assembly in their answer do not concern themselves with how far this mutual toleration of opinion was consistent with the “religion in which her majesty had been brought up,” but at once proceed to the position which they invariably take — founding . nothing on expediency, but all on truth, and insisting on truth as a thing which may be discovered, proved, and held : “ Where her majesty answers, that she is not persuaded in religion, neither that she understands any impiety in the mass, but that the same is well grounded, that is no small grief to the Christian hearts of her godly subjects ; considering that the trumpet of Christ’s Evangel has been so long blown in the country, that her majesty remains yet unpersuaded of the truth of this her re- ligion ; for our religion is not else but the same religion which Christ Jesus has in the last days revealed from the bosom of His Father, whereof He made His apostles messengers, and which they preached and established among His faithful till the ’gaincoming of our Lord Jesus Christ; . . . and therefore, as we are dolorous that her majesty in APPENDIX. 55 this our religion is not persuaded, most reverently we require, in the name of the Eternal God, that her highness would embrace the means whereby she miay be persuaded.”—(Book of the Universal Kirk, 34, 35). The right of their queen to a private judgment of her own seems here to be fully acknowledged, and to be qualified only by an obligation on her to “use the means” for persuading her to the truth. In the event, however, of her using these means, there can be little doubt that the Reformers were prepared to enforce another obligation, “ to be persuaded ” by them. And the Act “anent the mass,” which had been already enacted by the Estates in 1560, and was repeated in 1567, shows the high- est civil penalties attached to “stubbornness” in wrong opinions and practices in religious matters. NOTE H. EDWARD IRVING UPON THE SCOTTISH CONFESSION. “This document is the pillar of the Reformation Church of Scotland, which hath derived little help from the Westminster Confession of Faith : whereas these twenty-five articles, ratified in the Parliament of Scotland in the year 1560, not only at that time united the states of the kingdom in one firm band against the Papacy, but also rallied the people at sundry times of trouble and distress for a whole century thereafter ; and it may be said even until the Revolution, when the Church came into that haven of rest which has proved far more pernicious to her than all the storms she ever passed through; for, though the Westminster Confession was adopted as a platform of communion with the English Presbyterians in the year 1647, it exerted little or no influence upon our Church, was hardly felt as an operative principle either of good or evil, until the Revolution of 1688; so that the Scottish Confession was the banner of the Church in all her wrestlings and conflicts, the Westminster Confes- sion but as the camp colours which she hath used during her days of peace—the one for battle, the other for fair appearance and good order. This document consisteth of twenty-five articles, and is written in a most honest, straightforward, manly style, without compliment or flattery, without affectation of logical precision or learned accuracy, as if it came fresh from the heart of laborious workmen, all the day long busy with the preaching of the truth, and sitting down at night to, embody the heads of what they continually taught. There is a freshness of life about it which no frequency of reading wears off. Upon this also I would make one or two remarks. “ Note First—This Confession is most precious on this account, that it hath guarded as well as could be against the abuse of Confessions by being advanced into a certain lordship over the consciences of the mem- 56 THE SCOTTISH CONFESSION. 1560 AND 1567. bers and ministers of the Church, yea, and of the Word of God itself. So little did the writers of it think that they were binding the Church of Scotland to the very words and sentences and even matters of this their deed of faith, that they declare themselves to be bound by it only so long as they should see it to be according to God’s Word, and no longer. “ Note Second. —This, the native and proper Confession of our Church, is very strong upon the panics of faith, as being no doubtsome, wavering, unresolved persuasion, but a firm and strong assurance of our personal interest in Christ ; and so this they make to be not only of the essence, but the very essence of regeneration. “ Note Third.—This Confession of ours is ea strong and stable upon the subject of the incarnation of the Son of God, and the nature of the flesh in which He was incarnate. “ Note Fourth—This, the Cuneta of the Droteshint Church of Scotland, is mighty upon the sacraments, that strongest hold of faith, which superstition is ever endeavouring to possess, and infidelity to undermine. “ Note Lifth. —The Confession is good against the modern notion of a spiritual coming of Christ (as they term ay that is, a work done in the spirit, but not in person, for the end of bringing all things under Him upon the earth, Antichrist and all, some thousand years before the judgment. “ Note Sexth. —The idea of a Church (not the Church) given in this precious symbol of our faith, and the faith of our eaihbea is true, and well worthy of particular hea in these days, when it is believed that there are but two Churches in all this island, the Church of Scotland and the Church of England ; which, in truth, are the only two things so named, that are, properly speaking, not Churches, but religious nation- alities, or national communions of Churches: a church hath the same relation to the Natwonal Church, which a person hath to the com- munity. . . . In one word, the church of which I am a minister, while doctrine, sacraments, and discipline are rightly administered in it, is, in the eye of our Reformers, as true and complete a church, as if it were the limb of a presbytery, synod, or General Assembly. This is an awfully important conclusion, and I thank the Reformers for being so explicit upon it. I learned it not from them, but from the patient study of the seven epistles in the Apocalypse. But I rejoice to know that it is the doctrine approved by the Church of Scotland. “ I now dismiss this document, with the highest encomium which I am capable of bestowing upon a work of fallible men. It hath been pro- fitable to my soul, and to my flock. For several years I was in the habit of reading it twice in the year to my people; and once upon a time, when two men whom I wished to make elders had their difficulties in respect to the Westminster Confession, I found them most cordial in giving their assent to this. So that I may say my own church is constituted upon it. I love it for another reason, that it is purely a confession of faith, con- ~~ APPENDIX. 57 taining neither matters of church government nor discipline. And if, as I foresee, the faithful of all Churches should be cast out of their com- munions, they could, without forfeiting any of their peculiarities of government and of worship, find in this standard a rallying-point. The doctrine is sound, its expression is clear, its spirit is large and liberal, its dignity is personal and not dogmatical, and it is all redolent with the unction of holiness and truth. With a very few enlargements of what is implied but not fully opened, with no changes or alterations, I could give it forth as the full confession of my faith.”—Collected Writings of Edward Irving (London, 1864), i. 601. CHAPTER IL THE WESTMINSTER CONFESSION. 1647 AND 1690, Mipway in the history of the Scottish Church, its Confession of 1560—the Scottish Confession proper—was exchanged for that of the Westminster Assembly. This step was taken by the Church in 1647, and was not sanctioned by the State for forty-three years after. The history of both incidents in the change must be adverted to. Scotland was no longer “ distincted” as a kingdom by having a separate king. The monarch whose first Parliament ratified the Confession of 1560, ascended the English throne: and the immediate consequence was, on the one hand, an attempt on the part of the Stewart sovereigns to model the Church of Scotland on some English pattern; and a farther develop- ing, on the other hand, in the minds of churchmen, of the doctrine (latent in 1560) of the independence of the Church. Nearly a hundred years passed away with varied fortunes, till, Charles I. and Laud having driven Puritanism and Constitu- tionalism into an alliance, an explosion occurred at Edinburgh in 1638, succeeded immediately by the famous Assembly of that year, and the resumption by the Church of its long- claimed autonomy. In England the popular party had a longer battle to fight. The civil war commenced in August of the year 1642. In the September following, Prelacy was abolished by the Parliament; and on 12th June 1643, an “ Ordinance of the Lords and Commons in Parliament” was _ THE ASSEMBLY OF DIVINES. 59 passed, calling the Westminster Assembly. It proceeds upon the statement that the “purity of religion” is “most dear to us;” that the liturgy, discipline, and government of the Eng- lish Church requires reformation ; and, in particular, that such a government must be settled therein ‘‘ as may be most agree- able to God’s holy Word, and most apt to procure and pre- serve the peace of the Church at home, and nearer agreement with the Church of Scotland and other Reformed Churches abroad :” and it proceeds to call certain learned, godly, and judicious divines to consult and advise as to doctrine, with a view to these ends. On 22d June, King Charles by proclama- tion forbade and denounced the meeting; but it commenced as ordered on the 1st of July, the Royalist divines staying away. On the 7th of August, commissioners from the Lords, Commons, and Assembly of Divines arrived in Edinburgh, with creden- tials addressed both to the Convention of Estates and to the General Assembly, desiring aid and counsel from the more united northern nation. After discussions, in which, Baillie says, “the English were for a civil league, we for a religious covenant,”! they agreed, as the best means for “settling the true Protestant religion and propagating the same to other nations, and for establishing his majesty’s throne,” to have a bond including both the civil and the religious element, as a “most near tie and conjunction” between the two nations. The result was the Solemn League and Covenant, the chief articles of which are engagements, first, for the preservation and reformation of religion in the three kingdoms, “ according to the Word of God, and the example of the best Reformed Churches ;” and, secondly, for the extirpation of “Popery and Prelacy.” It was passed unanimously by the General Assembly on 17th August, the Lord High Commissioner of King Charles refusing to concur; and soon after received the solemn assent of the Scottish Convention of Estates, the English Houses of Lords and Commons, and the members of 1 Baillie’s Letters and Journals, ii. 90. 60 THE WESTMINSTER CONFESSION. 1647 AND 1690. the Westminster Assembly. Commissioners were appointed by the General Assembly to represent Scotland in the Assem- bly of Divines, the ministers being Henderson, Gillespie, Rutherford, and Baillie! and the elders, Lord Maitland ? and Johnston of Warriston. The Assembly of Westminster was at first occupied with the Form of Church Government, and Directory for Wor- ship; both of which, after numerous and interesting discus- sions raised by the Erastian and Independent members, were passed, carried to Scotland, and approved of by the General Assembly, with a proviso that their general ratification “ shall be in noways prejudicial to the farther discussion and exam- These documents so received by the Assembly have continued ever since to be of authority within the Church. Ata later period the Assembly took up the properly doc- trinal part of their work, and in order to construct a Confes- sion of Faith they on 9th May 1645 appointed a committee® and sub-committees to prepare each section and division, which were afterwards discussed and settled first by the larger com- mittee and then by the Assembly itself. The whole was finished by November 1646, and towards the end of that year ination” of certain articles. 1 The first three, men of high repute for learning and piety; the last, the Boswell of the Westminster Assem- bly. 2 The representative of the family of that Maitland of Lethington who had adjusted the first Confession with Knox, this. nobleman was afterwards too well known in Scotland as Duke of Lauderdale. The parallel between his history and that of his greater an- cestor is curious. 3 The names of the committee were Dr Gouge, Dr Hoyle, Mr Herle, Mr Gataker, Mr Tuckney,Mr Reynolds, and Mr Vines, with the four Scots divines. Neal, in his History of the Puritans (iii. 378), says that ‘‘the English di- vines would have been content with revising and explaining the Thirty- nine Articles of the Church of England, but the Scots insisted on a system of their own.” Yet the system adopted was not their own; and the model of the Westminster Confession seems to have been the Articles of the Irish Church, framed under the care of Archbishop Usher. It was certainly not the Scottish Confession. For valuable remarks upon these historical relations of the new creed, see ‘ Lec- ture on the Westminster Confession of Faith,’ by Professor Mitchell, D.D., St Andrews; Edinburgh, 1866. RESULTS OF THE WESTMINSTER ASSEMBLY. 61 * was presented to the Houses of Parliament. On the 22d March 1648 a conference was held on the subject between the two Houses; but the Westminister Confession was never formally adopted by the English nation or by its parlia- mentary representatives,’ the obstacle being the strong feel- ing, on the one hand, in the direction of toleration and Congregationalism, and on the other of Erastianism, which prevailed in the Parliament. Cromwell’s government was fol- lowed by the counter-revolution and the re-establishment of Episcopacy, after which neither Puritanism nor its doctrinal Confession ever recovered their hold in England. In Scotland the Restoration brought with it, as we shall afterwards see, renewed attempts to introduce Episcopacy, and a pressure on the Presbyterian Church, ending in a severe persecution ; but at the close the Church system seems to have been deeper in the imaginations and hearts of the people than at any pre- vious time, and the creed adopted in 1647 was accepted without any question in 1690 as that which the State was now willing to sanction. As in the case of the Scottish Confession, we give in the appendix to this chapter the heads of all the chapters of that of Westminster, printing in full those sections which seem to bear on the subject of this volume. Of the manner in which the Scottish Church adopted its present Confession we have, fortunately, very complete evidence in the important Act of Assembly of 1647, which we give in the appendix. It contains many points of interest, such as the importance of a Confession of Faith? (as “the chiefest 1 The Parliament proposed to leave out the thirtieth and thirty-first chap- ters, relating to Church censures and to synods and councils ; as also the fourth paragraph of chapter twenty, on the power both of the Church and magistrate to punish open main- tainers of mischievous opinions or practices.—See these paragraphs given in full in the appendix to this chap- ter. 2 The Westminster Confession, like that of 1560, has no chapter on creeds; and it lacks the preface which sup- plied that want in the case of its pre- decessor. On the other hand it is full- er and more express in the doctrinal region around and near the subject of 62 THE WESTMINSTER CONFESSION. 1647 AND 1690. part of that uniformity in religion” which the three kingdoms were bound to endeavour); the deliberation of the Scottish Church in adopting the Confession, which was printed for the inspection and consideration of members, and not’ only ex- creed ; and we may here collate these utterances. The Confession declares that God “is truth itself” (c. 20, § 4) ; that holy Scripture is ‘* therefore to be received, because it is the Word of God ;” and that the authority of it dependeth not upon the testimony of any church; that ‘‘ God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything con- trary to His Word, or beside it, in matters of faith or worship” (ce. 20, § 2); and that all synods and councils may err, and are not therefore to be made the rule of faith, but are to be used as a help to faith (c. 31, §4). And yet this Christian liberty is not op- posed to the ‘‘ powers which God hath ordained,” which are also set forth. God, the King of the world, hath ordained civil magistrates under Him for ‘‘His own glory and the public good ;” and it is the magistrate’s duty not only to take order for the unity of the Church, and the purity of God’s truth, worship, and ordinances, but also to punish those who publish scandalous and mischievous doctrines (c. 28). The invisible Church is the whole elect, living and dead, and yet to live, under Christ their Head: the visible Church consists of all those everywhere ‘‘that profess the true religion ;” and visible or particular Churches, with the highest privileges from Christ their King, are yet sub- ject both to mixture and error (c. 25). They have from Him a govern- ment in the hands of church-officers, distinct from the civil magistrate ; these officers have a ‘‘ power of the keys,” by the Word and Gospel, and also by censures and absolution (c. 30) ; and Christ’s ministers may meet in synod or council with or without the magistrate, and to them so met it belongeth, not of their own authority, but as appointed thereunto by God, ‘‘to determine controversies of faith” in accordance with His Word. And while this is the fune- tion of synods, and the ‘‘ civil magis- trate may not assume to himself the administration of the Word,” he has yet authority, in order ‘‘that the truth of God be kept pure and en- tire,” to call synods, be present at them, and to ‘‘ provide that whatso- ever is transacted in them be accord- ing to the mind of God ” (c. 23). It appears to result generally from the paragraphs here reviewed and quoted in the appendix, that creeds (which are not directly treated of) have no proper authority, that being given only to truth or God’s Word ; that, however, both the magistrate and the Church having to deal with God’s Word—the latter as its proper work, the former indirectly—they may have an interest that creeds be constructed, but that it is rather the province of the Church to construct them with the magistrate’s countenance and sanction ; that these two powers should. work together in this matter, but if they cannot, may work separately ; and, finally, that individuals, churches, and states are at all times and in- alienably free to follow truth rather than their creeds, but at the risk on the part of the Church of being pun- ished by the State, on the part of the State of being censured by the Church, and on the part of the in- dividual of suffering in both ways. THE CHURCH'S CHANGE OF CREEDS. 63 amined in private, but twice publicly read over; the twofold approval of it, first, “as to the truth of the matter, judging it to be most orthodox, and grounded upon the Word of God ;” and also, “as to the point of uniformity, agreeing, for our part, that it be a common Confession of Faith for the three ? kingdoms ;” and, lastly, the independence of the Church’s reception and approval of it, as shown in all these circum- stances, and still more remarkably in the several explanations and modifications under which alone they accept and ratify it. These modifications are two—a reservation in’ favour of the system of Presbytery, which is omitted from the Confes- sion, but which, though only given in the Directory, they indicate to be the “truth of Christ;” and a full statement as to the power of the magistrate in reference to synods or assemblies, and of the right of the Church to meet even without his consent. No mention is made in this Act of the old Confession of 1560. It may be supposed that the Assembly held both their old Confession and their new to be true, and therefore con- sistent with each other; but this is not stated. Whether in any sense they held the old Confession to be still binding is a more doubtful matter. As the new one is to be a “ Confession for the three kingdoms,” it may be argued that the old Scottish Confession might still continue as a municipal or domestic authority for Scotland; but as the change is founded on the obligation to “uniformity in religion,” the presumption seems rather in favour of the exclusive authority of the new creed. The fact that the Scottish Church did, at the culminat- ing point of its history, and in the period of its greatest energy and influence, throw away the old creed upon which it might plausibly be said to have been even founded, and proprio motu exchange it for another and a wholly new one, casts a strong and not unneeded light upon the previous and subsequent history. And this is not less striking when we observe that the new creed is in no respect a modification 64 THE WESTMINSTER CONFESSION. 1647 AND 1690. or re-presentation of the old. Not only is it the case that many propositions, and even whole paragraphs and chapters, con- tained in the Scottish Confession, are not found in that of West- minster, and that very many are found in the new creed which were not in the old—but the two were not even made upon the same plan. The structure of the one is wholly different from that of the other. And they are equally different in details. There is no one sentence or proposition in the Westminster Confession identical with any one in the Scottish Confession. The new creed was made de novo, without any thought of the old. the Confessions, to suppose that these are irreconcilable. It is not necessary, in noting the differences between All truths are reconcilable; and an adequate intelligence could deduce the whole body of divinity with absolute certainty from any one limb or fragment. But that very large dif- ferences do exist is certain. We shall have occasion after- wards to notice that, on so important a matter as the doc- trine of the visible Church, these creeds occupy extreme positions, which are separated by the bulk of the Confessions of the Reformation. The doctrine of the Magistrate, of the Sabbath, of Predestination, of Assurance, of Church rulers, and of the Sacraments, may be instanced as matters in which all theologians have observed a great difference, while some have alleged a decided contrast between the two.1 And while the diversity extends to each sentence and to each clause of each 1 See Herzog’s Real-Encyclopiidie, article Schottland, xiii. 708. In 1831 Edward Irving printed an edition of the older Scottish standards, in- cluding the Confession, with a preface, some portions of which we have in- serted in the appendix to the last chap- ter (Note H), as showing not so much the particular differences (which Irving was incapable of noting minutely or accurately), as the general influence of the Confession of Knox upon a mind singularly open to such influence. Irving’s preference for the older Con- fession on the subjects of faith and assurance was shared by the ‘‘ Mar- row men,” divines far more trusted in Scotland than the illustrious Lon- don preacher. Two of these minis- ters, in the year 1725, even brought, in their commissions to the Gen- eral Assembly, ‘‘a declaration that they had signed the Confession of Faith as agreeable to our old stan- dards.” —Wodrow’s Correspondence, ili. 194. RECEPTION OF THE CONFESSION IN SCOTLAND. 65 sentence, there is a difference in the tone and sentiment, as well as in the mode of treatment and style of thought, of the whole, which reminds us of the lapse of the century between, and of the difference between the stand-point of the Reforming and the Puritan age—a difference not so great, perhaps, as be- tween that of the Puritans and our own, but still one which is unmistakable and important. That the Scottish Church, bound with innumerable oaths and engagements to its old creed, should have voluntarily made a change so great without the smallest scruple or hesitation on the part of a single mem- ber of it, indicates a vitality in the protestation for freedom of 1560, which the intermediate history had scarcely given us the right to expect. Two years after the General Assembly had adopted the Westminster Confession, the Estates of Parliament, “having seriously considered the Catechisms, with the Confession of Faith, with three Acts of Approbation thereof by the commis- sioners of the General Assembly, presented unto them by the commissioners of the said General Assembly, do ratify and approve the said Catechisms, Confession of Faith, and Acts of Approbation of the same.”* But this was one of the Parlia- ments whose Acts were abolished by the Act Rescissory of Charles II. A few months later? the General Assembly passed what be- came practically a very important Act, ordaining that in every house there should be at least one copy of the Catechisms, Directory, and Confession of Faith (that of Westminster had evidently already usurped the clarum et venerabile nomen, and needed no distinguishing addition); and all ministers and elders were ordained to further the teaching of the igno- rant therefrom. During the twelve years of Cromwell’s vigor- 1 The mere difference of style of the ‘‘si oratio nostra minus fluere tibi new Confession is interesting — for videatur.” See appendix to Dr Nie- example, that ‘‘ materiw spissitudo” meyer’s Collectio Confessionum ; Leip- which the old Latin translators of it sic, 1840. plead to the reader as their excuse 2 Feb. 7, 1619. 3 July 30, 1649. E 66 THE WESTMINSTER CONFESSION. 1647 AND 1690. ous government, Scotland enjoyed profound peace, and. the instruction of the people was carried on by the ministers in their presbyteries (meetings of the Assembly being prohibited) in a more thorough way than was perhaps the case before or since. The consequence was that the Confession and Cate- chisms became early what they have ever since been—the great theological repositories from which, or through which, Scripture truth flowed to the people; and the change of creed made in one day by the General Assembly of 1647, was accepted without difficulty or delay.! . On the accession of Charles II. in 1660, an Act? was passed in the first session of Parliament, rescinding and annulling all the Scottish Parliaments from 1640 to 1648, and all their 1 Was the Westminster Confession subscribed between the years 1647 and 1690, either before or after the Resto- ration? This question was put to Robert Wodrow by an Irish cor- respondent at the time a controversy broke out upon subscription in Ulster, in the year 1723. Wodrow, in answer, regrets that he had not particularly inquired into the matter: ‘‘ At pre- sent, what offers to meis this. Our National Covenant, you know, is pro- perly a Confession of Faith against Popery, and accordingly was sworn and subscribed by all ministers and intrants, till Prelacy came in 1610. Then the Articles of Perth were urged ; and as I think, though I can- not be positive about it, the conform clergy were urged to sign them, at least they did swear and sign the oath of canonical obedience. When, in the year 1636, our new canons were framed, it was designed they should be signed by all ministers and intrants; but this was happily prevented by the second Reformation, 1687 and 1638, which you know began with swearing and subscribing the National Cove- nant, and that with the explanation of the Assembly at Glasgow, declaring that Episcopacy was renounced in that Covenant. This continued to be the Confession of this Church, in conse- quence, as you know, of the Solemn League and Covenant, 1643. Whether that Confession was then formally signed, and ministers and intrants required to give their explicit assent, I cannot so well inform you; but of this I can, that till the Restoration the Solemn League and Covenant was still subscribed by intrants, and the Solemn League and Covenant binds down to that uniformity of doctrine, &c., that was to be agreed upon by both Churches, and consequently was a material subscribing of it when ap- proven by the General Assembly. In licensing and ordaining sub cruce, I cannot be positive whether there was a formal subscription; but I know that there was a verbal assent requir- ed to our doctrines contained in the Westminster Confession ; and the min- isters, 1690, who framed the Act for subscribing the Confession, were just the suffering ministers in the period twixt the Restoration and Revolution.” —Wodrow’s Correspondence, iii. 84. 2 Act 15, first Parliament of King Charles IT. CREED AFTER THE RESTORATION. 67 enactments; and the immediately succeeding Act, while it allows “in the mean time” the present administration of the Church by sessions, presbyteries, and synods, declares his majesty’s resolution “to maintain the true Reformed Protes- tant religion in its purity of doctrine and worship, as it was established within this kingdom during the reigns of his royal father and grandfather of blessed memory.” No countenance is certainly intended to the Westminster Confession, which was the child of the Solemn League and Covenant, always denounced as ‘“‘treasonable.” The first Act of the second session of Parliament annulled “all Acts of Parliament by which the sole and only power and jurisdiction within this Church doth stand in the Church,” and by which it would seem that the office-bearers of the Church had any “ church power, jurisdiction, or government, other than that which acknowledgeth a dependence upon and subordination to the sovereign power of the king as supreme.” The same Act restores the “ancient and sacred order of bishops ;” and the next denounces the Solemn League and Covenant, and the modification of the old National Covenant sworn in 1638. These statutes are chiefly negative or condemnatory ; but the first Act of his second Parliament (1669) asserted posi- tively “his majesty’s supreme authority and supremacy over all persons, and in all causes ecclesiastical, within his king- dom.” The Westminster Confession is all this time ignored ; and the famous Test ordered in 1681 to be administered to all persons in trust, goes expressly back to the Scottish Con- fession. Before going on to renounce the Covenants and ”? acknowledge the king’s jurisdiction in ecclesiastical causes, it commences, “I own and sincerely profess the true Protestant religion, contained in the Confession of Faith, recorded in the first Parliament of King James VI., and I believe the same to be founded on and agreeable to the Word of God.”! The 1 The oath goes on to ‘‘affirm and the king’s majesty is the only supreme swear, by this my solemn oath, that governor of this realm over all per- 68 THE WESTMINSTER CONFESSION. 1647 AND 1690. passing over the Westminster Confession is the more remark- able, as it is at this point that Bishop Burnet (on such a matter an impartial and competent witness) tells of the com- plete hold the later creed had got of the people. At this year, 1681, he says, the Confession of 1560 “was a book so worn out of use that scarce any one in the whole Parliament had ever read it; none of the bishops had, as appeared after- wards. For these last thirty years the only Confession of Faith that was read in Scotland was that which the Assembly of Divines at Westminster, anno 1648, had set out, and the Scotch Kirk had set up instead of the old one; and the bishops had left it in possession, though the authority that This is borne out very much by the unquestioning way in which the Westminster Confes- sion was afterwards received by all parties to the Revolution Settlement, when even those who, like William of Orange, desired to gather into the reconstituted Church all the Epis- copal clergy, apprehended no. difficulty in their signing the Westminster Creed. (Some of the bishops and ministers of this party seem to have leaned towards Arminianism, and enacted it was annulled.” this imputation was thrown out against them at the Revolu- tion by the Presbyterians ;! but they indignantly denied it.) With regard to the mass of the people, there can be no doubt that the Test proposed to them a Confession which they had forgotten, and a doctrine as to supremacy over the Church which most of them by tradition disliked, and some on prin- ciple abhorred. Their steadfast resistance is manifest as we go on into the Statute-book of James II., crowded with in- quisitorial and persecuting Acts—the eighth statute of his sons, and in all causes, as well ecclesi- astical as civil; . . . and I judge it unlawful for subjects, upon pretence of reformation, or any other pretence whatsoever, to enter into covenants or leagues, or to convocate, convene, or assemble in any councils, conventions, or assemblies—to treat, consult, or de- termine in any matter of state, civil or ecclesiastic, without his majesty’s express command or special licence had thereto.”—Third Parl. of Charles Tnceec: 1 See History of the Scottish Epis- copal Church, by J. P. Lawson, M.A., 1843, p. 166. THE REVOLUTION OF 1688. 69 first Parliament, for example, enacting that those who are merely “present as hearers at field-conventicles shall be pun- ished by death and confiscation of their goods.” We have now come down to the Revolution of 1688. When William of Orange landed, the Estates of Scotland met, and, declaring in their letter to him that “religion, liberty, and law are the dearest concerns of mankind,” they in all their subsequent enactments observed the same order and precedence of religion over other interests. King James’s not taking the ancient oath to preserve the Protestant religion ' is made the first article of grievance in the Claim of Rights.” The meeting of Estates was turned into a Parliament which in its first session abolished Prelacy, but postponed the ques- tion of what the Church government should be ;* and accord- | ingly it is to the second session of this Parliament, meeting in the year 1690, that we owe the present legislative consti- tution of the Church of Scotland. The first statute of this most important session was one rescinding the Act of 1669 already mentioned,* which is de- scribed as “asserting his majesty’s supremacy over all persons and in all causes ecclesiastical.” The second restores the ministers who had been banished “for not conforming to Pre- lacy, and not complying with the courses of the time.” The third and fourth relate to elections of commissioners and committees of Parliament. And the fifth is that most impor- tant statute, “Ratifying the Confession of Faith, and Settling Presbyterian Church Government,”® the chief part of which runs as follows :— “Our sovereign lord and lady, the king and queen’s ma- jesties, and three Estates of Parliament, conceiving it to be their bound duty, aftér the great deliverance that God hath lately wrought for this Church and kingdom, in the first 1 See p. 48, supra. ° 1 William and Mary, c. 3. 2 April 11, 1689. + 1690, c. 1, 5 1690, c. 5. 70 THE WESTMINSTER CONFESSION. 1647 AND 1690. place to settle and secure therein the true Protestant reli- gion, according to the truth of God’s Word, as it hath of a long time been professed within this land; as also, the gov- ernment of Christ’s Church within this nation, agreeable to the Word of God, and most conducive to the advance- ment of true piety and godliness, and the establishing of peace and tranquillity within this realm; and that by an article of the Claim of Right it is declared that Prelacy, and the superiority of any office in the Church above presbyters, is and hath been a great and insupportable grievance and trouble to this nation, and contrary to the inclination of the generality of the people ever since the Reformation, they having reformed from Popery by presbyters, and therefore ought to be abolished; likeas, by an Act of the last session of this Parliament, Prelacy is abolished; therefore their ma- jesties, with advice and consent of the saids three Estates, do hereby revive, ratify, and perpetually confirm, all laws, statutes, and Acts of Parliament made against Popery and Papists, and for the maintenance and preservation of the true Reformed Protestant religion, and for the true Church of Christ within this kingdom, in so far as they confirm the same, or are made in favours thereof. Likeas, they by these presents ratify and establish the Confession of Faith, now read in their presence, and voted and approven by them, as the public and avowed Confession of this Church, contain- ing the sum and substance of the doctrine of the Reformed Churches (which Confession of Faith is subjoined to this present Act). As also they do establish, ratify, and confirm the Presbyterian Church government,” &c. Some things may be at once observed with regard to this Act. Both in the preamble and in the enactment the settlement of religion takes precedence of the settlement of the Church. The religion to be settled and secured is described in the preamble as “true ;” as “Protestant” (or perhaps this means THE ACT 1690, ©. 5. ; vat the truly Protestant religion) ; and as “according to the truth of God’s Word;” but also, “as it hath of a long time been pro- fessed within this land.” A contrast is acknowledged between this religion and Popery, insomuch that it is not held too vague to confirm all Acts against Popery and Papists, and in favour of this true religion and the true Church of Christ. : A continuity and identity is acknowledged in this true religion that has been “of a long time professed in Scotland ” —seemingly, indeed, “ever since the Reformation :” inso- much that the present Confession (though not the original one in favour of which the Acts confirmed had been made) “contains the sum and substance of the doctrine of the Reformed Churches.” + Lastly, this Scottish Religion is confirmed not only as the religion of the people and Church of Scotland, but as “ true,” and “according to God’s Word ;” and the Church is acknow- ledged as the true Church of Christ. But a question may be raised whether the Confession of Faith is adopted in the same express and absolute way in this statute as the “true Reformed Protestant religion” is. This Act was passed on the 7th of June 1690, and it is to be observed that the approval of the Confession by the Estates was on the 26th of May previous, running in these words, “The Confession of Faith under-written was this day pro- duced, read, and considered, word by word, in presence of their majesties’ High Commissioner and the Estates of Par-. lament; and being voted and approven, was ordained to be recorded in the books of Parliament.” The old Confession of 1560 had been, “ by the public votes of the Estates of Scot- . land, authorised as a doctrine grounded on the infallible Word of God ;” and the voting, approving, and recording of the later 1 The expression ‘‘ Reformed have come to mean the Calvinistic, as Churches” is of course equivalent in distinguished from the Lutheran or our law to ‘‘the Protestant Churches.” Evangelical: but this is not the sense Abroad, the ‘‘ Reformed Churches” of the Act. 72 THE WESTMINSTER CONFESSION. 1647 AND 1690. creed, after it had been “considered word by word,” seems naturally to convey the same idea—to show, at least, that the Confession was not only approved, but adopted, by Parliament. Still the words of this Approval in May are by no means so strong as those of the ancient Acts; and the terms of the Act which followed in June are still less so. No doubt the sovereigns and Parliament “ratify and establish” the (new) Confession of Faith, and “vote and approve” it; but it is not said that they do so as their own Confession, or as “the truth of God,” but “as the public and avowed Confession of this Church.” The Church had forty-three years before “ publicly avowed” a Confession, which the State having first approved now au- thorises her to maintain or retain; not, perhaps, on the ground that it is in all respects and absolutely true, but on these grounds at least, whatever others there may be—first, that it is her public and avowed Confession; and, secondly, that it “contains the sum and substance of the doctrine” which the State does acknowledge to be true, and desires to “ settle and secure, maintain and preserve.” Taking the whole words of the Act in connection with past legislation confirmed by it, and comparing it with the approval given two months before, the enactment cannot mean less than we have here indicated, and it may mean more. At the same time, the well-known leanings of King William to a compre- hension which should reconcile the Churches of England and Scotland in respect both of doctrine and government, and the dissatisfaction which high Presbyterians have always expressed with this Act, even when founding upon it, combine to show that this moderate reading of the statute is nearly true. What the Revolution Settlement therefore unquestionably establishes 1 The draft of this Act was sent up by the Earl of Melville to the king, who returned it with alterations, some of which were adopted, while others were not. This curious and important document is found in the Leven and Melville Papers (and with other valu- able circumstances), in Dr M ‘Cormick’s Life of Principal Carstairs, to whom it is believed King William dictated it. We give it in the appendix to this chapter, Note D. CONSTRUCTION OF ACT 1690. 73 is—l. The doctrine historically held by the people of Scot- land (especially as that doctrine is common to the Reformed Churches and opposed to Popery); and this doctrine it con- fesses to be the truth of God. 2. The Presbyterian Church. 3. The Westminister Confession, as the public doctrine of the Church,’ and now (generally) approved by the State. 1 An idea has been frequently sug- gested of late that the Church of Scotland, and even the ministers of it, are bound by the Confession of Faith only in so far as it is the ‘‘sum and substance of the doctrine of the Re- formed Churches ;” and in fact are only bound to that substance of doc- trine. It is to be observed— 1. So far as individual ministers are concerned, their adherence is re- gulated not by the Act 1690, from which these words are taken, but by the very strict terms of the Act 1693, now still farther straitened by the for- mula of subscription. 2. Even as.to the Church, the words of the Act 1690, if construed on the ordinary principles of interpretation, are unfavourable to this suggestion. By it the Confession is ratified “as the public and avowed Confession of this Church, containing the sum and sub- stance of the doctrine of the Reformed Churches.” It does not appear, as has been already remarked, that the State ratifies the Confession as abso- lutely true. It does not say that it is the sum and substance of the Re- formed doctrine; in which case, as we gather from the rest of the Act, there would have been no hesitation in ratifying it absolutely. It says that it contains that sum and sub- tance, and therefore it ratifies it as the permanent Confession of the Church which had already adopted it. But it is the Confession which the statute thus ratifies—the Confession as it was read—and not the Reformed doctrine. (It does not appear that the word ‘‘as”’ is to be read in con- nection with the word ‘ containing.” The words ‘‘ containing the sum and substance of the doctrine of the Re- formed Churches” appear to be not tuxative or conditioning, but demon- strative or descriptive. ) 3. While this seems to be the strict construction, three things are to be observed on the other side. The Con- fession is treated as a whole, as a unity, almost as a system. It is rati- fied not as a detail of the doctrines of the Church, nor as a heap of proposi- tions about these doctrines, but as the Confession of this Church —a Con- fession having gradation, subordina- tion, and structure—having such an essential unity in it as to contain the sum and substance of thirty or forty Reformed Confessions, all of them systematic, and all so harmonious that this statute speaks of them in the singular number, as ‘‘the doctrine” of the Reformed Churches, and sub- stantially one. In the second ‘place, the statute refers to the Confession not only in connection with the doc- trines of other Churches, but with the past history and past doctrine of the Church of Scotland; and recognises the doctrine as the same, though the Confession had been changed. In the third place, it is known that this was done not per incuriam, but deliber- ately, and with an intention, on the part of the sovereign at least, of recalling and perhaps reuniting the Church of Scotland to other Churches. While, therefore, to qualify or limit the Confession by the ‘‘ substance of - 74 THE WESTMINSTER CONFESSION. 1647 AND 1690. Another point of considerable interest in this statute relates to the independence of the Church as to the new Confes- sion! Does the Act impose a creed upon the Church, or does it ratify it as adopted by the Church long ago? It ratifies the Confession of Faith, meaning thereby not the Scottish Con- fession, but that of Westminster, which hitherto had only an ecclesiastical existence in Scotland. On the other hand, it ratifies and establishes it as “ now read in the presence of the Estates, and voted and approven by them;” and it establishes it, so read, as “ the public and avowed Confession of this Church,” without any of those qualifications, reservations, or amendments Reformed doctrine” would be to invert the meaning of the enactment, and to interpret obscurwm per obscurius, con- trary to the usual principles of exegesis of statutes, it does seem suggested or demanded by the Act that in all ad- ministration of the Confession by the Church or the Court respect shall be had to its character as a system of Reformed doctrine, an organisation of truth, in which some statements are principles, others deductions, and others details, and the whole is greater than the parts—in which some root propositions are properly vital, and others partake of their life. And thus also where any question occurs as to the meaning of whole or parts, or as to their subordination, which is left doubtful on the face of the document itself, it should probably be answered by a reference to the doctrine of the Reformed Churches, and especially of the old Reformed Church of Scotland. But these remarks are thrown out, and thrown out with deference, only on the point of interpretation of this Statute of 1690. The conclusion for freedom, which its words do not seem of themselves sufficient to sup- port, may possibly be reached by a wider historical survey, and a fearless application of more general legal principles. 1 The Lord President Hope’s state- ment in the Auchterarder case, though given in the form of a narrative, seems to be quite as much a statement of the true theory of a Church’s rights in the matter: ‘*‘ Now as to this Act 1690, one circumstance is very remark- able. If there was one thing more than another within the compass of the exclusive cognisance and jurisdic- tion of the Church, it would seem to be the settling the terms of the Creed or Confession of Faith of the Church. But the Church knew that it could not do so, and did not venture to do so by its own authority. The Church drew up what she thought ought to be the Confession of Faith of the Presby- terian Church, but she did not declare and enact by her own authority that this is and shall be the Confession of Faith of the National Church of Scot- land. No; the Church presented it to the Parliament, which ‘by these presents ratify and establish the Con- fession of Faith now read in their presence, and voted and approven by them, as the public and avowed Con- fession of this Church, containing the sum and substance of the doctrine of the Reformed Churches.’ Now, after this admission on the part of the Church of its dependence on the Legislature,” &¢.—Robertson’s Report, ii. 13. ACT 1647 AND CHURCH FREEDOM. 75 with which alone the Church had avowed it. The minutes of Parliament bring out very satisfactorily the meaning of the en- actment. The Confession was read finally on the 26th of May, and approved by vote. It was then moved “that the approba- tion of the Confession may be as it was approven by the Gen- eral Assembly 1647,” and it was ‘answered, that this were contrary to the vote approving the Confession as read, the Con- fession as approven by the Assembly containing some differ- ences.” As the result, “the clause relative to the Assembly 1647” was “left out.” And two days after (on the same day when, in direct opposition to King William’s desire, Presbytery was declared to be “the only government of Christ’s Church within this kingdom”), the question as to 1647 being again raised, was decided as before. The minutes of a meeting afew - days previous (23d May) seem to show that, on the one hand, an attempt had been unsuccessfully made to dispense with the Confession as a standard altogether, or at least to leave “ reli- gion” very much to the “Church” alone; while, on the other hand, a motion “ that the Assembly be prohibited to make any Act contrary to the standing laws of the kingdom,” with a significant allusion to one of the immunities claimed by the Assembly in their Act 1647, was also made but not adopted. The former proposal was probably that of the highest Presbyterians, headed perhaps by the Earl of Craw- _ ford; the latter may have been by Stair or Dalrymple. But both proposals were a great deal too extreme to be adopted." The Parliament compromised the matter. The old Act of Assembly and the claims .of the Church were left unnoticed, on the one hand, and unassailed; but, on the other, the Con- fession was ratified, deliberately ignoring the modifications insisted on by that Act.2 The question of independence 1 See all the minutes of Parliament the Confession of Faith as it was rati- referred to in appendix to the chap- fied by the Parliament of Scotland in ter, Note D. the year 1690. ... The difference 2 «The only standard of the Church between the Confession of Faith as of Scotland which is now in force is ratified in Parliament 1690, and that 76 THE WESTMINSTER CONFESSION. 1647 AND 1690. remained, as it had hitherto done, a doubtful and open one, not to be decided for a century and a half later. But this ignoring of the Assembly of 1647 was one of the circumstances in the Act which now produced a strong feeling of resistance in the Church. And this feeling found expres- sion in the very remarkable history attending the statutory ‘introduction of the present subscription to the Confession of Faith. A Church may make a Confession or declaration of its faith at any time in its history, without establishing it as a standard for the faith of its members or office-bearers. Again, it may do both these things—may issue its Confession, and afterwards hold and use it as a standard or even test-—without requiring individual subscription to it. The Act “Ratifying the Con- fession and Settling Church Government,” of 1690, cannot be said to have taken either of these additional steps. It estab- lishes the Westminster Confession only as “the public and avowed Confession of this Church,’ leaving, seemingly, the use of it as a standard to that jurisdiction which was now restored to the Church; and not exacting any subscrip- tion, which indeed the Church itself had not done when it adopted it. But the Church on this point now took the initiative The Parliament had ratified the Confession in May and June 1690. The Assembly met in October, and “after mature deliberation” approved an overture, which it . appointed “to have the force and strength of an Act and ordinance of Assembly,” to the following effect :— “For retaining soundness and unity of doctrine, it is judged which had been approved by the As- sembly 1647, appears to consist chiefly in the omission of the explanations or qualifications contained in the Assem- bly’s Act of Approbation.”— Principal Lee’s History of the Church of Scotland, ii. 366. (From Paper on the Claims of the Church of Scotland, written in 1842.) 1 Except with regard to univer- sities, colleges, and schools, as to which Parliament had on 4th July 1690 passed an Act (c. 17) providing that none should bear office in these ‘‘ but such as do acknowledge and profess, and shall subscribe to the Confession of Faith, ratified and approven by this present Parliament,” and also swear the oath of allegiance, &c. KING WILLIAM’S PROPOSED SUBSCRIPTION. 77 necessary that all probationers licensed to preach, all intrants into the ministry, and all other ministers and elders received into communion with us, in Church government, be obliged to subscribe their approbation of the Confession of Faith, approven by former General Assemblies of this Church, and ratified in the second session of the current Parliament; and that this be recommended to the diligence of the several presbyteries, and they appointed to record their diligence thereanent in their respective registers.” But while the Presbyterian Church had resolved to admit none who did not sign the Westminster Confession, it had by no means determined to admit all Episcopalians who should offer to do so; and on this point they were at issue with the king, who also irritated them by the calm and peremptory way in which he signified his wishes on points which they had always conceived to belong to themselves exclusively. Accordingly William wrote to the Assembly of 1692, “It is represented to us that you are not a full General Assembly, there being as great a number of the ministers of the Church of Scotland as you are, who are not allowed to be represented;” and with regard to these, formerly Episcopal clergymen or curates, he says, “We have signified our pleasure to these conform ministers to apply to you in the terms of a formula and declaratory, which we have delivered to our commissioner, being rather inclined (that this union may be the more effec- tual and cordial) that it should be an act of your own to receive and assume into Church government and communion with you such as shall address to you in these terms and subscribe the Confession of Faith, which clears the soundness of their principles as to the fundamental articles of the Pro- testant religion.” The letter which the king sent at the same time to the large body of ministers of the Episcopal com- munion was well received. Two commissioners from the 1 See his very fine letter to the corded in the Acts of Assembly of Assembly of 10th October 1690, re- date 17th October. 78 THE WESTMINSTER CONFESSION. 1647 AND 1690. Aberdeen Synod, the centre of northern Episcopacy, went to Edinburgh with authority to accept his majesty’s proposal ; and having there met the representatives of the southern Episcopalians, they united in presenting the requisite ad- dresses to the Assembly. The “formula and declaratory” which they desired to subscribe was as follows: “I, A. B, do sincerely declare and promise that I will submit to the Presbyterial government of this Church; . . . and I do further promise that I will subscribe the Confession of Faith, and the Shorter and Larger Catechisms, now confirmed by Act of Parliament, as containing the doctrine of the Protestant religion professed in this kingdom.” These last words should be remarked, as showing what William intended should have been the import of the Act 1690, c. 5. The symbols are confirmed not as being, but “as containing,” the doctrine of the Protestant religion; and the subscription is to the Confes- sion not necessarily as the personal belief of the individual, but “as containing the doctrine of the Protestant religion professed in this kingdom.” The Assembly remitted the applications to a committee, which studiously delayed its report; and was indeed so evidently determined not to acquiesce in the king’s proposal, that the Earl of Lothian, the commissioner, suddenly and with some sharpness dissolved them, without naming a day for another meeting. The moderator stood up, and requesting in his brethren’s name to be heard, protested (in the words of the proviso which the Assembly’s Act of 1647 had added to the Confession, and which the recent statutes had ignored) “that the office-bearers in the house of God have a spiritual intrin- sic power from Jesus Christ, the only Head of the Church, to meet in Assemblies about the affairs thereof, the necessity of the same being first represented to the magistrate;” and thereupon appointed a day on the authority of the Assembly itself for its next meeting, a proposal which was carried by acclamation. The Assembly so fixed was never held; but ACT 1693, C. 22. 79 before the day for it arrived the Act of Parliament was passed which introduced and still regulates the subscription to the Westminster Confession—an Act which had the unfor- tunate effect of both excluding the Episcopalians, and greatly increasing the irritation and alarm of the Presbyterian Church. The Act “ For Settling the Quiet and Peace of the Church” was passed on 12th June 1693, in the fourth session of this first Parliament of William and Mary (c. 22); and it commences with a ratification, approval, and perpetual con- firmation of the still more important Statute of 1690, as to the Church’s doctrine and government. It then “further” statutes and ordains— “That no person be admitted, or continued for hereafter, to be a minister or preacher within this Church, unless that he, having first taken and subscribed the oath of allegiance, and subscribed the assurance in manner appointed by another Act of this present session of Parliament made thereanent, do also subscribe the Confession of Faith, ratified in the foresaid fifth Act of the second session of this Parliament, declaring the same to be the confession of his faith, and that he owns the doctrine therein contained to be the true doctrine which he will constantly adhere to; as likewise, that he owns and acknowledges Presbyterian Church government as settled,” &e. Unfortunately for the quiet and peace of the Church, several of the other provisions contained in this Act were very of- fensive to the Presbyterians, who indeed were most of all offended by the attempt to provide for the conduct of Church affairs by civil legislation at all. Thus all ministers were by it obliged to subscribe not only the Confession, but the oath of allegiance and assurance, taken to William as king not only de facto but de jure. The ministers, not seriously objecting to the substance of this oath, yet resented its being imposed upon them in their sacred capacity. The long manifesto pre- served in the Life of Carstairs’ (which, whether emanating 1 Carstairs State Papers and Letters, p. 52. 80 THE WESTMINSTER CONFESSION. 1647 AND 1690. from friends of the Church or enemies of William, was cer- tainly intended to express and inflame the feelings of the former) treats the proposal to enforce oaths, the substance of which very few of the members scrupled at, as an act of un- precedented tyranny which it concerned the privileges of the Church to resist; and the same argument applied equally, or perhaps a fortiori, to subscription to the purely doctrinal Confession, the Act in both cases prescribing peremptorily to the Churéh whom it was to admit to the office of the holy ministry, and whom to exclude. But all the different objec- tions to the Act united and culminated when it went on to provide for summoning a General Assembly by royal autho- rity, and when, this having been done, all the members were ordered to make the subscriptions, and especially the Assur- ance, in terms of the statute, and that under a threat, first of being individually excluded from that court, and after- wards of its being dissolved. Scotland was once more in a religious storm. The Church was now on the old ground, so familiar to it from 1560 to 1843, of “freedom of As- sembly,” and the threat of a second dissolution seems to have made them resolve that on this occasion the “ intrinsic power” to meet, asserted by their Act of 1647, should not bend to the Act of 1693. The Assembly was determined, if dis- solved, to continue its sittings. The king was equally firm;! and all authorities appear to agree that the Church was on the point of an open breach with the new monarch and his goy- ernment, when the hurried irruption of Mr Carstairs into the presence of the king at Kensington, after having intercepted the royal despatches, prevented the explosion at the last mo- ment. On the morning of the meeting of Assembly, 29th 1 William was probably displeased when he heard that the Presbyterians, with his ministers, Dalrymple or Tar- upon what he considered a mere re- bat, for passing an Act with so much _ ligious punctilio, refused and resented stricter a subscription than he had an enactment so much more favourable himself proposed to the Episcopalians; to them than he had intended, and he must have been confounded FORMULA OF 1694. 81 March 1694, permission came to the royal commissioner to withdraw the threat of dissolution, and relieve the members from taking the Assurance. This concession was of the greatest service to King William. A cordial feeling took possession of the Assembly at once. They persisted, indeed, in steadily ignoring the obnoxious statute; but they proceeded at once to pass an Act which carried into effect almost exactly what the statute contemplated—so far at least as subscription to the Confession was concerned. The Assembly, by this Act (11 of 1694), appointed a commission, who “may receive into minis- terial communion such of the late conforming ministers as, having qualified themselves according to law, shall apply per- sonally to them one by one, duly and orderly, and shall acknow- ledge, engage, and subscribe upon the end of the Confession of Faith as follows, viz.:— 68 J , do sincerely own and declare the above Confession of Faith, approven by former General Assemblies of this Church, and ratified by law in the year 1690, to be the confession of my faith; and that I own the doctrine therein con- tained to be the true doctrine, which I will constantly adhere to ; as likewise that I own and acknowledge Presbyterian Church government of this Church,” &c. “ As also the General Assembly require all presbyteries and synods, in their admitting or receiving any to ministerial communion, that they oblige them to take and subscribe the above acknowledgment ;” and the Commission is authorised also to fill up vacant congregations on the north side of Tay (the Episcopal part of the kingdom), “by ordaining well- qualified expectants, who shall be bound at their entry to subscribe the said Confession of Faith, with the acknow- ledgment above expressed.” The words of subscription are taken from the Act of Parlia- ment; but the Assembly took care to interpolate the clause that the Confession had been “approven by former Géneral Assemblies of this Church”—z.e., by the Assemblies held in F 82 THE WESTMINSTER CONFESSION. 1647 AND 1690. 1647 and thereafter, which were all held without or against the royal authority, and were ignored by the recent statutes. As a farther manifesto of independence, they enjoin in the ‘same Act that none of their judicatories “take advantage to censure any minister whatsoever for not having qualified him- self in terms of the ‘ Act for Settling the Quiet and Peace of the Church,” an injunction which is. repeated in a separate Act (12th of this Assembly); and seemingly well aware that even these safeguards would by no means satisfy the Camer- onian party (who were not only offended by the ignoring of the whole “attainments” of the covenant period, but equally so by the statutory and, as they alleged, the quasi-Erastian - character of the present settlement), they add (section 8 of Act 11), “The Assembly being informed that several aspersions are laid on the ministers and judicatories of this Church by some persons, as if the said ministers and judicatories had receded from the known principles thereof, in relation to the constitu- tion and government of the Church, contained in the Confes- sion of Faith, though the contrary thereof be evident, not only by the ministers of this Church their owning of and adhering to the said Confession, wherein these principles are contained, but also by the whole course of their ministry, therefore the General Assembly require the said commission to take all due pains to inform, convince, and satisfy any such persons of their mistakes, that they may be reclaimed.” Meantime, amid all these protestations of independence, the Act of 1693 was translated into a formula of subscription; and the matter came to an end as a question between the Church and the State. It was not again raised, and it is not now likely that it ever will be. In the remainder of this chapter we may carry on the history of subscription as enforced by the internal regulations of the Church, the Act 1693 being the 1 The reference is probably to the government in the hand of church- well-known clause of the Confession, officers, distinct from the civil magis- ‘‘The Lord Jesus, as King and Head of _ trate.” His Church, hath therein appointed a SUBSCRIPTION FROM 1694 TO 1711. 83 only statute upon the subject. It will be seen that the eccle- siastical modifications have been in the direction of making the formula more stringent and exclusive. The resolution of the Assembly of 1690 was merely that all office-bearers should “ subscribe their approbation of the Con- fession of Faith.”! The subscription proposed by King William in 1692 was also to be a general one to the Confession, “as containing the doctrine of the Protestant religion professed in this kingdom.” The Act of 1693, repeated in the formula of 1694, is much more explicit, and, as the statutory bond of the Church to this day, requires careful attention. By it the sub- scriber (1) declares the Confession to be “the confession of his faith” (and the formula adds that he “sincerely” declares this); (2) he “owns the doctrine therein contained to be the true doctrine;” and (3) he engages “constantly to adhere to” this doctrine. Down to the year 1711 this was the only for- mula in use in the Church, and it is still that in terms of which elders sign the Confession. On 4th January 1696, the General Assembly, on a preamble lamenting the spread of scepticism and deism, and the attacks.on “the grand mysteries of the Gospel” and the authority of revelation, give various recommendations to their ministers how to meet these; “and, in general, the Assembly doth discharge [%.e., forbid] all minis- ters, and other members of this Church, to publish or vent, either by speaking, writing, printing, teaching, or preaching, any doctrine, tenet, or opinion contrary unto or inconsistent with the Confession of Faith of this Church, or any article, part, or proposition therein; and appoints that all such as contra- vene this Act, or any part thereof, be censured by the Church according to their demerit.” The reference in this Act to the separate articles of the Confession is more stringent than any- thing we find since the Revolution; and it is repeated in nearly the same terms by the Act 12 of the Assembly of 1704. Both 1 In another Act of the same As- Faith.” But this was in an authority sembly 1690, it is expressed, ‘‘Shall to a commission appointed pro presenti own and subscribe the Confession of statu Ecclesie. 84 THE WESTMINSTER CONFESSION. 1647 AND 1690. these, however, relate to the ordinary judicial or inquisitorial proceeding of the Church, subscription remaining as settled in 1693 and 1694. It may, indeed, be doubted whether the Assembly’s enactment of 1694, before narrated, did not relate exclusively to Episcopal ministers; but if it did not include all ministers (as the Statute of 1693 seems to have intended) and all elders (as the Acts of Assembly 1690 contem- plate), that omission was attempted to be rectified by the 11th Act of the Assembly of 1700 (passed 17th February), which is as follows: “The General Assembly appoints that all ministers and ruling elders belonging to this National Church subscribe the Confession of Faith as the confession of their faith, according to the Act of Assembly 1690, and the formula agreed upon in the Assembly held in the year 1694, Act 11, paragraph 6; and that this be done betwixt and the next General Assembly.” Andon the footing of these Church ordinances, matters remained, in regard to ministers and preachers, down to 1711, and in regard to elders down to the present day. In 1711 another change took place in internal legislation as to subscription, a change which introduced a stricter formula than that of 1694, for ministers and probationers (v.e., candidates or expectants of the ministry who, as licensed to preach by the presbytery on probation, are also preachers or licentiates). The Act, the 10th of Assembly 1711 (passed 22d May), prescribes a course of six years’ study of divinity for all candidates for the ministry, and enjoins presbyteries to make trial of their orthodoxy and knowledge in divinity: ‘And the General Assembly, judging it fit that the same method should be followed in all presbyteries as to the questions put to and engagements taken of all proba- tioners when licensed, and ministers when ordained or ad- mitted, and that probationers and ministers should not only give sufficient proof of their piety, literature, and other good qualifications for the ministry, but also come under engage- FORMULA OF 1711. 85 ments to adhere to the doctrine, worship, discipline, and government of the Church, do therefore enact and appoint that the following questions be put to all such as pass trials in order to be licensed, as also to such as shall be ordained ministers or admitted to any ministerial charge or parish, and that they shall subscribe the formula after set down before they be licensed, ordained, or admitted respectively; and the General Assembly hereby strictly prohibits and discharges the licensing, ordaining, or admitting of any who shall not give satisfying answers to these questions, and subscribe the for- mula hereto subjoined.” There are, therefore, two sets of questions to be put to ministers and probationers respec- tively, and a common formula to be subscribed by both, all which documents we give in full in the appendix to this chapter. Both sets of questions begin with a stipulation of belief in the Scriptures as “the Word of God and the only rule of faith.” That for probationers proceeds, “Do you sin- cerely own and believe the whole doctrine of the Confession of Faith, approven by the General Assemblies of this National Church, and ratified by law in the year 1690, and frequently confirmed by divers Acts of Parliament since that time,’ to be the truths of God, contained in the Scriptures of the Old and New Testaments? and do you own the whole doctrine therein contained as the confession of your faith?” And among the remaining questions to probationers are found these: ‘“ Are you persuaded that the said doctrine is founded upon the Holy Scriptures, and agreeable thereto? Do you promise that, through the grace of God, you will firmly and constantly ad- here to, and in your station to the utmost of your power assert, maintain, and defend the said doctrine? Do you re- nounce all doctrines, tenets, or opinions whatsoever, contrary to or inconsistent with the said doctrine of this Church? Do you promise that you will submit yourself to the several judi- 1 The Acts at the time of the Treaty of Union had intervened, of which in the next chapter. 86 THE WESTMINSTER CONFESSION. 1647 AND 1690. catories of this Church, and are you willing to subscribe to these things?” The questions for ministers are nearly the same with those for probationers, only the “whole doctrine of the Confession” is here stated to be “founded upon the Word of God” instead of being “the truths of God;” but the personal confession and obligation is the same: some of the tenets inconsistent with the Confession are specified; and there is added a special engagement to submit to the judicatories of the Church, “and that, according to your power, you shall maintain the unity and peace of this Church against error and schism, notwithstanding of whatever trouble or persecution may arise ; and that you shall follow no divisive courses from the present established doctrine . . . of this Church?” But the Formula, which is to be subscribed by all, includes all the expressions contained in both sets of oral questions, profess- ing the “whole doctrine” to be “the truths of God,” and also “founded on the Word of God, and agreeable thereto ;” own- ing the Confession as the “confession of my faith,” promising to “adhere to, assert, maintain, and defend it,” and renouncing all doctrines “contrary to or inconsistent with” it. Such is the present clerical subscription in the Church of Scotland. It has not been changed since the Act 1711; but the Act 1711 was itself.a considerable change upon the sub- scription which had preceded it. Yet it does not appear that this was at the time held to be «a very strong exercise of Church power. Principal Carstairs was the moderator of the Assembly; and Wodrow, in his Correspondence, says, in a very cursory way, of date 17th May 1711, “ This afternoon, in the Committee of Overtures, the overtures anent ordination of ministers and elders and probationers were agreed upon as a directory, not as standing Acts.”! Five days after, he records the voting and passing of the Act as we have it, with some particulars of the discussion.2 The reasons for its being 1 Wodrow’s Correspondence, i. 227. the Acts anent admission of probation- 2 «This day the Assembly voted ers, and questions to ministers and ACT 1711: WHY PASSED. 87 passed seem to have been, first, a desire for uniformity in the procedure, as the Act itself bears ;? secondly, a vague but strong dread of heresy, as indicated by an Act of the immedi- ately preceding Assembly ;? and, thirdly, a more special fear of that Episcopalian reaction which was now beginning upon intrants were voted and passed. It was urged that the binding up of pres- byteries from licensing till the judg- ment of the synod was known and had with respect to the young men, did infringe the radical power of pres- byteries. But it was thought neces- sary to keep that in at this juncture. It was asked, If this formula did ex- clude all other questions at intrants ? It was answered, It did. But there might be questions anent errors, &c., proposed at private trials. Mr Ander- son of St Andrews alleged there were several questions ordinarily proposed (I suspect it was as to Prelacy and the Covenants) that were not there, and it was not proper to insist much on them ; but he thought it hard to bind up persons to these only. It was answered, that all these were in- cluded in the general, if they believed the Scripture and Confession of Faith, and that a uniformity of queries was proper; and any that condescended upon particulars, if they were included in the generals, they were to do it swb periculo.” —Correspondence, i, 238. 1 The above extract from Wodrow sufficiently shows that there had not as yet been any uniformity in the ex- action of adherence to doctrine—but this is plain also from the records of Assembly. 2 This Act, 12th of Assembly 1710, is very instructive as to the feeling of the time. It is entitled ‘‘ Act for Pre- serving the Purity of Doctrine ” :— ‘‘The General Assembly, consider- ing that the purity of doctrine is a signal blessing to the Church of God, and that it hath been the great happi- ness of this Church, ever since her reformation from Popery, to have en- joyed and maintained the same; and that the avoiding all expressions in matter of faith, contrary to the form of sound words, tends not a little to preserve the said purity which is so desirable : And it being informed that in some places some expressions are used, and opinions as to some points of religion vented, which are not agree- able to our Confession of Faith and Catechisms, and the known sentiments of the greatest lights and most famous Gospel ministers wherewith this Church has been blessed : Therefore the Gen- eral Assembly does discharge all per- sons to vent any opinions contrary to any head or article of the said Confes- sion and Catechisms, or use any ex- pressions in relation to the Articles of Faith not agreeable to the form of sound words expressed in the Word of God, and the Confession of Faith and Catechisms of this Church, which are the most valuable pieces of her Re- formation, And the General 128 THE TREATY OF UNION. On the contrary, it holds that the Church of Scotland, if not independent, has at least a high jurisdiction and a perpetual existence as a living corporation statutorily belonging to the State. The covenant of 1707, therefore, while it exists, can never be in abeyance for want of a body in right to appeal to it; and can never be unjustly infringed, even by the Legisla- ture, without a protest from a body which has both right and interest to make the protest. II. The alleged infringements which have already taken place have not been avowed or serious attacks upon what may be held the most important aspect of the Act of Security. The Act 1690 confirms, first, the Protestant religion as held in Scotland, and, secondly, its Presbyterian Church; and the Act of Security was unques- tionably chiefly intended to secure these against the Episco- palian influence of the English Legislature. Neither the Tole- ration Act, nor the restoration of patronage, nor the modification of university tests, can be called an avowed or deliberate attack upon the Presbyterianism of that Act; and still less can the actings of the Crown, the Legislature, and the Court in 1843. What the Church recently split upon was not a question be- tween Presbytery and Episcopacy, but one more ancient and abstract—one which had been ‘debated between two parties within it, or at least between statesmen and churchmen within Scotland, long before the Revolution; and the obligations of the Union, though certainly founded on in that controversy, were less discussed than the Statutes of 1567 and 1690, and the fundamental relation of the Scottish Church and State. If the courts and the Legislature were right in their construc- tion of that fundamental relation, they were not wrong in reference to the Treaty of Union, which merely perpetuated the relation existing at the time. The question of the inde- pendence of the Church may have been more important, or of the settlement, may renounce it main unrepealed which recognise the for themselves ; but the union of the Presbyterian Church as the Church Church of Scotland with the State established by law within the king- is indissoluble while the statutes re- dom of Scotland.” HOW IT MAY BE FOUNDED UPON. 129 less important, than that between Presbytery and Episcopacy ; but it was a different question. And the threefold safeguard to Scotland against “Prelacy,” of the Revolution Claim of tight, and the Act 1690, and the Act of Security, all confirm- ing “the Presbyterian Church government and discipline to be the only government of Christ’s Church within this kingdom,” remain intact—binding the British Legislature to ignore in Scotland probably even such a simple Episcopacy as Knox was willing to tolerate, but infinitely more any conceivable Episco- pacy which has not fellowship and communion with the Pres- byterian Churches of the Reformation. III. The claim under the Act of Security, which is prima facie pleadable on behalf of Scotland only by the Established Church of Scotland, is doubtless capable of being strengthened by the concurrence of other Scotch Presbyterian bodies ; for though these are ignored by the law, they are not necessarily ignored by the Legislature. The very strong historical claim of the Free Church might thus at any time be used (could it only forget the spretw in- juria forme), not now to neutralise, but to corroborate with an independent strength, the claim of the Church Established against any threatened transgression of the Union securities. If this transgression were an infringement of religious free- dom, the Voluntary Churches would have a right to be heard with peculiar respect; and (to return to our subject) the common claim would be exceedingly strong in anything relat- ing to doctrine. In the Act of Security, and in all our legis- lation, doctrine takes precedence even of Church rights; and the same principle runs through the constitutions of all the Presbyterian Churches which fill Scotland at this day. They have laid great stress upon the rights and freedom of ecclesi- astical assemblies; but their Second Book of Discipline de- clares that “the final end of all Assemblies is first to keep the religion and doctrine in purity, without error and corruption.” And as the leading stipulation of the Act 1690 is not political, nor even ecclesiastical, but doctrinal, the various Presbyterian I 130 THE DEFINITION OF 1843. Churches, differing among themselves in polity, might sub- stantially agree in doctrine; and so long as they did so they would stand on the Union engagements of England in this re- spect with an impregnable moral and legal strength. We shall not be thought to have devoted too much space to the Union Treaty, for it has always been spoken of as that which permanently binds both State and Church to the Con- fession of Faith. That this is so with regard to the State, or how far it is so, has already been considered. The same questions might now be raised on the side of the Church also, and we might proceed to inquire whether the Church of Scot- land, independent (even of statute) as it has often claimed to be, is not bound by the compact of a federal treaty? But within the recollection of the present generation the whole question of Church independence, and especially of Church relation to statute, has been examined and decided; and one undoubted result of this process is, that the Church is as effec- tually bound to its creed by the Acts of the Revolution—z.e.; by simple legislation—as it could be by any supposed compact or treaty in 1707. We may, therefore, proceed at once to these decisions, which constitute the last chapter of the his- tory of the Established Church necessary to be looked at be- fore summing up the results as to its relation to its creed. In tracing the history of the Church down to a period within the memory of our readers, we have been able to avoid the chief contests which took place on the subject of Church independence. Except for a brief period in 1794, our subject has led us away from these. Yet, while tracing the history of the Church solely in the interest of creed, we have been forced again and again to remark a constant tendency in churchmen to claim an original independence of the Church upon the State—an independence not lost or compromised NON-INTRUSION. 1I3L even by its establishment, by which indeed it was sometimes alleged to have been confirmed. That statesmen leaned to a different view was evident; but it was the interest of both parties to avoid collision. And it was not till near the end of the third century of its existence that a question so interest- ing to the Church in all its relations, and among others in its relation to its creed, was fairly raised, exhaustively discussed, and finally decided, at the expense of the excision from the Establishment of that Church party which for so many ages passionately maintained the doctrine. Whether the Revolu- tion Settlement was more favourable to the Church’s claims than its previous establishment is a little difficult to say. On the one hand, the Statutes of 1690 give far less of the appear- ance of a jus divinuwm to the Church than those of King James I.’s. But the Westminster Confession perhaps makes up for this by its famous assertion that “The Lord Jesus, as King and Head of His Church, hath therein appointed a government in the hand of church-officers, distinct from the civil magistrate ;” and while its 23d chapter gives’ large power to the magistrate circa sacra, it goes by no means so far in this direction as the Scottish Confession. The matter remained very equally poised, and left room for one of the greatest debates in modern jurisprudence. We shall find the ° legal definition of 1843 fruitful in inferences and illustrations bearing on the subject of these pages. The occasion upon which the question arose was in every Way an appropriate and adequate one. The resistance of the Church to patronage, which we have already seen manifested at the Revolution, and till long after the Union, had dated from the very commencement of its existence; and found expression, especially in the form of a determined opposition to intrusion, in both Books of Discipline. Yet the rights of 1 What measure of authority is al- He says, ‘‘There are two authorities lowed to the Books of Discipline by in favour of the call’’—the First and Lord Brougham, in his speech in the Second Books of Discipline. But Auchterarder case, is not very clear. ‘‘the First Book of Discipline is of 132 THE DEFINITION OF 1843. the “just and ancient patrons” continued to hold their place in the Statute-book, and the system, abolished by King Wil- liam and restored by Queen Anne, vexed and diminished the Church of Scotland during the hundred years that followed. And when the Church at last roused itself from the selfish somnolence of the last century, and began to covet and regain its ancient popularity, this question was found to lie full in front of it. It could not abolish the civil right of patronage ; but in May 1834 the General Assembly passed an Act declar- ing, “That it is a fundamental law of this Church that no pastor shall be intruded on any congregation contrary to the will of the people.’ This step soon produced the inevitable results. In the Auchterarder case, “by far the most important the Court has ever been required to determine,’? the conduct of a presbytery in founding on this Act, and rejecting a presentee who had been refused by a congregation, was found illegal; and the defence that it was a matter “subject to the jurisdic- tion of the Church courts” was rejected. The position being laid down by the heads of the Court that this jurisdiction is derived from and dependent upon the State, the Assembly of 1838 adopted a contrary resolution, binding the Church to “assert and at all hazards defend” the independence of the “Church, and to enforce obedience to this upon its office-bearers. This led to the Strathbogie cases, where the majority of a presbytery refused to obey the Act of Assembly 1834, now declared illegal, and insisted, in the face of orders from the Assembly, upon at once ordaining a presentee as minister of a recusant congregation. The Presbytery were accordingly suspended by the Church (before they were able to carry out no legal authority at all;” and the strangely called”), his Lordship says, doctrine of the Second Book on calls “If I were called to a conflict with ‘*is not the law now: it never wasthe the Book of Discipline on any point fact at any time.” Yet ofthe second of Church discipline, or upon any of these ‘‘authorities, as they have article of theology, I should no doubt been strictly called” (soin Supplement _ feel great anxiety.’’ This whole speech to Report, p. 18.—The Scottish Jurist was delivered extempore. Report has it, ‘‘as they have been 1 Lord Cockburn, THE CHURCH CRISIS. 133 the intrusion), but actively protected by powers, appealed to by parties having interest, now fell heavily in every direction upon the rebellious ecclesiastical body. Its position became especially unworkable when the quoad sacra and secession ministers, whom the Church had received by its own authority as equal in status and function with the ministers generally, were declared to be no members of Church courts, insomuch that their presence invalidated the acts of these judicatories, and when large sums of damages were found due to parties injured by acts of presbyteries done in obedience to the “fundamental law” of non-intrusion, and even by their evading or delaying the infraction of that law. The endeavour to escape, by in each case aban- doning the temporalities of the benefice, and claiming the spiritual and pastoral rights only for the Church, was met by the principle that office-bearers of the National Church were statutory functionaries, who were bound and compellable to perform their duties as fixed by the Supreme Courts, and could not evade them by merely abandoning emoluments. The negotiations for relief from this conflict of supposed jurisdictions, by means of legislation, failed. The Church issued the Claim, Declaration, and Protest of 1842—a most important historical document, gathering up the principles of the party now dominant, and always up to this time represented in the Church; and in the following year the individual members commissioned to the Assembly of 1843, who adhered to the Claim,’ seceded, declaring in a new Pro- the Court; whose 1 The curious equipoise in the con- is in its favour. On the other hand, stitutional question was maintained with a nice justice to the last. The question whether it was a majority or a minority of members of Assembly who seceded, depends on whether the previous exception of qwoad sacra min- isters by the Church’s own authority, many of whom were members, was valid. Ifthe principles of the Church are admitted, the numerical result here even on these principles, the ministers and elders who throughout the coun- try jomed the Free Church were a minority. Even had it been otherwise, the legal result would have been quite the same. According to some of the cases just decided, the majorities of judicatories in incompetent acts were ignored, and the minorities recognised; and the 134 THE DEFINITION OF 1843. test! that a free Assembly of the Church of Scotland could not be held under the conditions of establishment as now fixed; and, leaving “the presently subsisting ecclesiastical Establishment,” they formed themselves into a body which claimed to continue or to become the Free Church of Scot- land. It will be observed that this critical discussion turned not ona matter of doctrine, but on a question of Church order, and afterwards on the question of Church authority and in- dependence. Whatever instruction, therefore, we may look for from this period as to the connection of the Established Church with its creed, will be found (1) in the general principles laid down as to the relation of the Church to the State, (2) in more particular statements as to the binding force of statute, and (3) in certain references which the Bench made to the Confession in dJlustration of their central argument. I. The Relation of the Church to the State. The position of the Church, as set forth in the resolution of the Assembly 1838,? “anent the independent jurisdiction,” was that “In all matters touching the doctrine, government, attempt of any number of ministers, however large, whether acting as in- dividuals or as judicatories, to sever the Church of Scotland from the State, would have been simply nugatory— while on the ecclesiastical principles, on the other hand, it was only sepa- rate from the State that the Church of Scotland could now exist, or at least hold Assembly. But the Protest of 1843, and the secession, were the acts not of judicatories, but of indivi- duals. The Claim, Declaration, and Protest of 1842 was the act of the Assembly. 1 These documents are interesting as illustrating ex adverso the princi- ples brought out in this and the fol- lowing chapter, but will be found of great importance when we come to treat in the second part of the volume of the principles of non-established Scottish Presbyterians. They are themselves, too, admirable specimens of public documents— whole centuries of history concentrated into formula. We can only print the conclusion of the Claim of Right, but give the Pro- test of 1843, and the short Act of Separation, in full.—See Appendix, Note D. 2 Act14. This Act, unlike the other manifestoes of the Church in its war of independence, was not re- scinded by the Established Assembly of 1843. LORD. MEDWYN’S THEORY DENIED. 135 and discipline of this Church, her judicatories possess an exclusive jurisdiction, founded on the Word of God, ‘ which power ecclesiastical’ (in the words of the Second Book of Discipline) ‘flows immediately from God and the Mediator Jesus Christ.’”! pleadings by the senior counsel of the Church;? and among This position was not fully taken up in the the powerful minority of Judges who favoured its claims,’ some, like Lord Cockburn, acknowledge fully “the great principle that the Church, as an Establishment, has no power but what the State has conferred upon it,” arguing thereafter that the State had conferred, or at least acquiesced in or acknowledged, all that the Assembly now claimed. But the opinions of the minority of the Bench, and the powerful argu- ment in which they upheld the constitutional recognition of the Church’s independent authority by the State, have now only an historical interest. One Judge, who voted with the majority, took up in theory an almost intermediate position. Lord Medwyn held that the Church had natively and originally the independence and authority which it claimed, and had them not from the State, but from a higher source; but that, by forming a compact with the State, this original position had been abandoned, and that now the State has right and interest to enforce obedience upon the Church of all the conditions of the contract as the courts of law shall interpret them—reserving to the Church “a rescission of the contract, and a restitutio in integrum, which is always within its power, however much to be depre- 1 The independence claimed by the Church of Scotland is stated by a very high authority to have been the same in extent with that maintained by the defenders of the ‘‘ Gallican liberties” abroad, against Ultramontanes and Krastians. — Principal Cunningham’s Discussions, 152, 2 “Tt has been said that the Church has a divine right, independent of, and superior to, the power of Parlia- ment. This was not argued by the counsel, and Mr Rutherfurd particu- larly disclaimed it. Assuredly such an argument can never be listened to here.” —Lord Mackenzie in Middleton v. Anderson (Culsalmond case), 4 D. 1010. 3 Lords Glenlee, Fullerton, Mon- ereiff, Jeffrey, Cockburn, and Ivory. 136 cated,” } THE DEFINITION OF 1843. Lord Medwyn’s opposition to the Church was upon the constitutional question—the question how much in point of fact the State in Scotland had (in compact) given to the Church. His general theory was rather favourable to eccle- ‘ 1 None of your Lordships can carry your notions higher than I do, as to the power of the Universal or Catholic Church asa spiritual body, and independent altogether of the State, for making laws relative to its constitu- tion, ceremonies, polity, or confession of faith, binding on its own members, and to be submitted to as a test of membership, and enforced by ecclesi- astical discipline. 1tis from a higher source than the temporal power that the Church derives its existence and rights; no less than from that Power ‘which gave Christ to be Head over all things to (z.e¢., to the benefit of, ' Whitby) the Church, which is His body.’ Yet exalted as its origin, its dominion is but spiritual, and its legislative powers thus far limited ; and care must be taken to keep their exercise within such, limits that no civil right be affected by any law of this spiritual body, and obedience to its decrees can only be expected from its members. But when this inde- pendent society asks not toleration merely from the civil power, but es- tablishment,” &c. This was in the Auchterarder case (Robertson’s Re- port, ii. 147); andin Lord Medwyn’s third great speech inthe case of Cruick- shank v. Gordon, 10th March 1843, he says of the Church and the State : ** Rach will be entitled to support its own jurisdiction against aggression by the peculiar arms bestowed, — the Church, by ecclesiastical censures— the civil magistrate, by the sword. The Church is exclusive and indepen- dent, accountable to no one on earth in the exercise of her spiritual powers, in the performance of those eeclesias- tical functions which she derives from her Divine Head; but it is only in the legitimate exercise of them that the Church can possibly have the high sanction which most churches have claimed; if they exceed their due power, it is excess—it is usurpation— it has no longer the privilege which it would have had under other circum- stances, and cannot claim the sanction of its Divine Founder, because exceed- ing and not exercising powers com- mitted by Him to His Church.”—5 D. 926, Again in the same speech (5 D. 964) he says: ‘‘It is not, then, that the Court of Session exercises jurisdiction over a co-ordinate court, but that the supreme power of the State exercises its legitimate and constitutional mode of securing implement of a solemn contract entered into by itself in be- half of its subjects, and which the other contracting party knew at the time would be thus enforced, and hence has expressly agreed to. This must have been an inherent condition, otherwise it would have been a most insane act on the part of the State to have given an irresponsible power, to a society that might become either a most useful and efficient ally, or a most tyrannical or oppressive oppo- nent ; and, further, to allow to this ally the right of saying, and that without review or control, that it is acting within its own province, when, in fact, it has failed in its duty to the State, by obstructing its lawful pro- ceedings. This, however, was not done. On the contrary, the Church knew that it was intended to enforce the contract, with all its conditions, purchased by correspondent advan- tages. If the Church feels itself bur- dened with this condition, its remedy ESTABLISHMENT NOT FOUNDED ON CONTRACT. 137 siastical claims.! But this theory, like that of the Assembly, was opposed by the majority of the Court. Lord Gillies says, in the Auchterarder case:? “As to the alleged compact between the Church and the State, I ob- serve in passing that it is an improper term. There can be no compact, properly speaking, between the Legislature and any other body in the State. Parliament, the King, and the three Estates of the realm are omnipotent, and incapable of making a compact, because they cannot be bound by it.” is not disobedience at its own hands, but a rescission of the contract, and a restitutio in integrum, which is always within its power, however much to be deprecated.” 1 Lord Medwyn’s theory is interest- ing, as being very much that of Eng- lish High-Churchmen, which is simi- lar to the old Scottish doctrine, but probably essentially distinct from it. The root of the Scottish theory seems to be, that all church power is minis- terial; that churchmen are not autho- rities, with a power of discretion, but servants of Christ; that, being ser- vants, they have no right to do more in the Church than they are com- manded to do in Scripture; but, on the other hand, they have no power to do less, or to delegate their church functions to others. The Church, therefore, on this theory, has no power to compromise or surrender its origi- nal independence even for a time. The theory, on the other hand, of Mr Gladstone (for example) assumes that it has some such power of surrender, and that for the noblest purposes ; while the retention of an ultimate right of disruption is enough to defend it from the imputation of unfaithful- ness.—State in its Relations with the Church, ii. 28-35. 2 Robertson’s Report, ii. 32. 3 How far the Judges admitted the idea of contract may be gathered from the following statement of Lord Mac- kenzie’s in the Culsalmond case: ‘* It is said that our commission is limited ; so that, independently of the alleged exclusive jurisdiction of the Church, we are barred from judging in this case by our own inherent want of power. I do not understand that. Suppose the Church had never been established, and had no exclusive eccle- siastical jurisdiction by law, but had been an independent sect, only toler- ated, like the Episcopal sect in Scot- land ; and then suppose that a pres- bytery, duly authorised by the sect, had entered into an agreement with A B, by which he agreed to build a church, and endow it; and the pres- bytery, duly authorised by the sect, agreed that, upon a vacancy, A B should present a qualified person, whom the presbytery agreed to or- dain ;—suppose, then, A B fulfilled his part, and then, on a vacancy, the presbytery refused to fulfil its part— would it ever occur to anybody that we had not authority to enforce this contract ? It would be no answer to say to us, You are not ecclesiastical— you cannot ordain. The answer would be, No; and, for that reason, we de- cern you to do it, as you agreed to do. Just as much must we have jurisdic- tion, unless it can be made out that we are excluded by ecclesiastical juris- diction, given by statute to the Church, where a right and obligation to the same effect are created vi statuti. In 138 THE DEFINITION OF 1843. “In some expressions in Lord Medwyn’s opinion,” said the Lord Justice-Clerk Hope in the Stewarton case,’ “ which appear to admit of the possibility of a proper conflict of juris- diction between the Church courts and the supreme court of law, I cannot concur. I cannot admit that an Establishment, instituted by statute, can claim or legally pos- sess any authority from a divine source, which the State, constituting the Establishment, may not have thought fit to acknowledge as belonging to it. And,-of course, I cannot admit that an Establishment can ever possess an independent jurisdiction, which can give rise to a conflict as between two In the same case,? the Lord President Boyle says, “There exists, in reality, no such thing as a conflict between the civil and ecclesiastical courts of a country, in which a Church is established and endowed by the State” The previous head of the Court, the Lord President Hope, was at least as emphatic on this point as his successor. In the Strathbogie case he puts it thus : “The Church courts say that they have an independent jurisdiction ; but who gave them any jurisdiction ? separate and independent jurisdictions.” The law, and that alone, gave it; and the law defines what it has so given.”® In the very first speech on the Auchterarder case fact, patronage has, in justice, the support of contract or quasi contract also, as well as of statute. For Parlia- ment, with the consent, I believe, of patrons, gave to the Presbyterians the whole Establishment ; and, on a va- cancy in a church, enjoined the patrons to present a qualified man to the pres- bytery to fill it ; and that being done, Parliament bound and astricted the presbytery to ordain or admit. And of this gift of the Establishment, with its condition, the Presbyterian Church accepted, which bound herin good faith, as well as allegiance, to observe the con- dition, and admit the qualified presen- tee.”,—Middleton v. Anderson, 4 D. 1010, 1011. But that the legal ground was not good faith or contract, but allegiance, is put very expressly by Lord Mackenzie in the Auchterarder case (Report, ii.,121): ‘‘I agree with the senior counsel, that the subjection of the Assembly is not owing to any contract between Church and State, but simply to the supreme power of the Legis- lature, which every subject of this country, and all bodies consisting of subjects of this country, must obey.” 1 Cuninghame v. Lainshaw, 20th January 1843. See Separate ‘ Report of the Stewarton Case’ (Thomas Clark, 1843), 53. 2 Report, 141. 32D. 606. And in Kinnoull ». Ferguson (second Auchterarder case), ORIGINAL RELATION TO THE STATE. 139 “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 dignify by no other name than absurdity. THE PARLIAMENT is the temporal 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.” 4 he had put it more strongly still. That these principles were reasserted in the House of Lords cannot be said; for they were not so much asserted as assumed throughout the speeches of Lord Brougham, Lord Cottenham, and Lord Campbell, in the first and second Auchterarder appeals.2 The nearest approach to the formal discussion of them is perhaps Lord Brougham’s allusion to a conflict between the House of Lords and the Church courts, which he con- demned as an indecent supposition.? 5th March 1841, 3 D. 797, his Lord- ship says: ‘‘If these gentlemen wish to maintain the situation of what they call a Christian church, they would be no better off than the Catholic Church, or the Episcopal Church, or the Burghers or Anti-burghers ; but when they come to call themselves the Established Church, the Church of Scotland—what makes the Church of Scotland but the law? What were they in the interval between the Re- storation and the Revolution? by, or must be consistent with, law ;” and that, for example, the Church courts “may be limited in their powers as to what shall be the doctrines of the Church.” His lordship’s most important generalisation was, that “these views will not surround these courts with protection 7f they exceed their jurisdiction,” giving instances of this excess which have a manifest bearing on the cases before the Disruption of 1843 ; but he went very much farther when he added, in accordance with the same cases, that these would be no protection “if Church courts” (negatively) “refuse to perform a duty im- posed on them by statute, as a part of the ecclesiastical con- stitution of the Church.” And in accordance with this, he declared that he could easily conceive many questions “ which might arise regarding the conduct of a Church court, even when in the exercise of its proper province of discipline” (such conduct, for example, as subornation of testimony, an allega- tion which he held would be diverse from that before the Court, which was a mere general imputation of malice). Lord Medwyn remarks that the boundary between the civil and ecclesiastical is hard to hit, but that “ within the proper province of the Church court” its proceedings cannot be questioned by the civil authorities. He adds, however, the awkward exception, that if, for example, a minister were kept out of his benefice “from some unworthy and improper motive, and in a case of manifest violation of duty,” damages could be obtained through the civil court—making the difference be- tween such a case (which was the second Auchterarder case) and the present, that the present was not for patrimonial loss but for solatium—a distinction which Lord Moncreiff ignored, and Lord Cockburn scouted, in their opinions which followed. That this case, even with these exceptions, gives a large LOCKHART ¥v. DEER. 205 measure of protection to Church judicatories is certain. The general rule, that an action of damages will only lie against the members of an inferior court, if they are alleged to. have acted maliciously and without probable cause, was affirmed in the same year in the case of Dunbar v. the Presbytery of Auchterarder.! Here the Court reduced the sentence of a presbytery deposing a schoolmaster (under the School- masters Act), but refused the man injured an action against the members of court unless he made these allegations. Up to this point there is no doubt of the protection accorded to Church courts, even when they act under special statute. But the attempt of the Lord Justice-Clerk to carry this farther in the case of Sturrock, so as to give these courts in matters of discipline not only a real but a peculiar and abori- ginal jurisdiction, and so to refuse action against their mem- bers when both malice and want of probable cause are alleged, cannot be said as yet to be successful. The practical result of it has, as we have seen, been authoritatively questioned in the case of Edwards v. Begbie; and the theory on which it was founded was, with much plausibility, stated by Lord Cockburn to be equivalent to “a direct reversal of the prin- ciple” of the judgments of 1843. “Iam aware that this is not what your lordships mean; but I suspect that it is the only construction that lawyers can put upon what you are doing.” Perhaps the only thing to be certainly concluded from this case of Sturrock is, that the bare allegation of malice, without a sufficient detail of facts to support it, will not be listened to against ecclesiastical judges. A mere imputation of evil motive will not found a claim of reparation. In the mean time we may pass from it to the next important case. Two years after, in Lockhart v. the Presbytery of Deer,? “a minister, who had been deposed by the General Assembly on 1 The opinions of the First Division Smith v. Presbytery of Auchterarder, upon the occasion are instructive ; 12 12 D. 296. D. 284, 11th Dec. 1849. See also 2? 13D. 1296. 206 THE ESTABLISHED CHURCH AND ITS CREED. the ground of immoral conduct, presented a note of suspension against the sentence being carried into effect, on the grounds that the libel on which the sentence proceeded was defective in the instance, that evidence had been improperly rejected, and that the procedure before the presbytery had been gene- rally irregular and oppressive.” The former case had been before the Second Division ; and this came before the First on a reclaiming note from the decision of Lord Colonsay, afterwards the Lord President, who held that it did not appear that the presbytery, in dealing with a case confessedly appropriate for its decision, had “exceeded their powers, or acted in violation of any statute.” The Court did not even call upon counsel for the presbytery, but unanimously refused to inquire into its proceedings. They held, in the words of Lord Cuninghame, that “the ecclesiastical courts have an exclusive jurisdiction in proper ecclesiastical cases; and we are no more competent to review the proceedings of such courts on preliminary or incidental points, than their final judgments on the merits.” Or, as Lord Ivory put it, “If we are not entitled to review a sentence on its merits—even in the extreme case, that it is plainly against all principles of law and justice—still less can we interfere with any of the steps of procedure by which that sentence has been reached.” The difficulty of the Auchterarder and Strathbogie, and other precedents, was referred to by Lord Fullerton, who thought them “ special cases;” and by Lord President Boyle, who de- fended them on the ground that the decisions.of the General Assembly, which had been there reviewed, “involved a de- parture not only from the statutes of the realm, but from the constitution of the Church itself.” In comparing these two cases, and the theoretical exceptions allowed in them, with subsequent cases (such as Edwards v. Begbie, and the Cardross case, and others, in which it was attempted, though chiefly in the case of Dissenters, to reduce these theoretical exceptions to practice), the idea occurs very EXCEPTIONS TO ECCLESIASTICAL IMMUNITY. 207 frequently that the question is one of degree. The courts have refused to allow an action against ecclesiastical judges on the ground of malice, and have refused to review an ecclesiastical sentence on the ground of irregularity.? Yet there can be little doubt that swch a case (of malice on the one hand, or of irregularity on the other) could be stated as the Court would at once take up. If the irregularity came to be wltra vires, or to be contrary to statute, or, without being so, amounted to a gross withholding of justice by the ultimate Church tribunal, the act would probably be held to amount to legal malice, and at all events to come up to the exceptional cases admitted by the Lord Justice-Clerk Hope. And if the allegation of malice, on the other hand, were not only, as in the case of Sturrock, a mere imputation of motive, but a detail of ecclesiastical corruption or conspiracy against which there was no ecclesiastical remedy, the result would probably be the same. In both the cases which we have been considering, it was carefully laid down by the Bench that they did not mean to make a precedent for “extreme cases :” and it may be safely inferred that the Scottish Supreme Court will not, in this century, exclude itself by anticipation from the consideration of such cases when they arise. The occasions on which jurists have held that there is a recursus ad princi- pem, cited especially by Lord Medwyn in the case of Cruick- shank v. Gordon (10th March 1843), and the interdicts and decisions following upon the Auchterarder case, however inapplicable to a theory of co-ordinate jurisdiction, are of permanent value in the ecclesiastical constitution as now fixed. Before as well as after 1843, the majority of the Court protested that they did not interfere, and would not interfere, with the proper spiritual or ecclesiastical jurisdiction of the Church ; and the emphatic reassertion of this principle as to discipline after the Disruption does not change the position. One point, indeed, these later cases, taken by themselves, 1 Case of Sturrock, 2 Cases of Lockhart and of Dr Lang, infra. 208 THE ESTABLISHED CHURCH AND ITS CREED. would seem to show—viz., that so long as there is any ecclesi- astical remedy competent for an ecclesiastical irregularity, the Court will not step in to put it right. They will not reverse the ecclesiastical act until the superior court has been appealed to. This was formally found in the case of Dr Lang v. The Presbytery of Irvine (5th March 1864, New Series of Reports, ii, 823), where an action of reduction of the findings of a pres- bytery on the ground of irregularity and illegality was held not competent, because the pursuer had not exhausted the remedies open to him in the ecclesiastical judicatories. This of course does not apply to actions of reparation or damages for the irre- vocable consequences of a wrongful act already done; and this very case of Dr Lang’s indicates that the courts may in some cases leave it to the Assembly to rectify the ecclesiastical wrong, while (if malice is proved) they may themselves give civil reparation for the civil injury which. that wrong has caused. But it cannot be said that the courts have receded from their ultimate right to reduce and reverse the ecclesias- tical sentence itself, by way of reduction, provided there be a final failure of justice. But this failure of justice, it would seem, must be no mere common mistake, either in matter or form. It must be some- thing excessive and gross, before the courts will even consider it. For there is no (ordinary) appeal from the ecclesiastical to the civil courts; and the latter have no (ordinary) power of review of the judgment of the former. And this seems to indicate a permanent distinction between the law in England and in Scotland. “From all these (ecclesiastical) courts,” says Blackstone, “an appeal lies to the king in the last resort.” The Act, indeed, authorising appeals, declares that “for lack of justice at or in any the courts of the archbishops of this realm, or in any the king’s dominions, it shall be lawful to the parties grieved to appeal to the king’s majesty in the king’s Court of Chancery;”? and the phrase “lack of justice” might be held 1 25 Henry VIII., ¢ 19, sec. 4. APPEALS FROM ENGLISH ECCLESIASTICAL COURTS. 209 to mean something other or worse than a mere false deci- sion. But it has been construed so as to give the right of ordinary and regular appeal from all ecclesiastical or spiritual decisions ; and the extension of the liberty cannot be said to be inconsistent with the statutory doctrine that the king “is and hath always justly been by the Word of God supreme head in earth of the Church of England, and hath full power and authority to correct, punish, and repress all manner of heresies, errors, vices, sins, abuses, idolatries, hypocrisies, and superstitions, sprung and growing within the same, and to exercise all other manner of jurisdictions, commonly called ecclesiastical jurisdiction,” and that by means of laymen learned in the civil or Church law, as well as clergymen.! Blackstone’s three “strong marks and ensigns of authority” of the king over the Church—viz., the power of prohibition or interdict, the power of interpretation of ecclesiastical statutes, and the appeal to the king—have all been exercised in Scotland through the king’s courts, but only in extraordinary circum- stances. The separate and exclusive jurisdiction of the eccle- siastical courts, in all ordinary circumstances, has here been always acknowledged ; and this too is in consistency with the express repudiation of the royal supremacy in matters eccle- siastical, by which our Revolution Settlement was inaugurated. The principles, therefore, which the English Supreme Court of Ecclesiastical Appeal has laid down for its own guidance, a note of which we think it well to give in the appendix, possess but a remoter legal interest for us.” It would appear, therefore, that, in the judicial proceedings of the courts of the Established Church, it is only when they act in some way which is wltra vires, or outrageously unjust,° 1 37 Henry VIII., c. 17. See also 2 See Appendix, Note D. the Act of Elizabeth, ‘‘To restore to 3 In Dunbar». Stoddart (11 D. 587) the Crown the ancient Jurisdiction over the phrase ‘‘ violation of duty” was the Estate Ecclesiastical and Spiritual, held to be pretty nearly equivalent to and Abolishing all foreign Powers re- malice. See also the Auchterarder pugnant to the same.” cases. 0 210 THE ESTABLISHED CHURCH AND ITS CREED. or contrary to express law, that they can be repressed by the supreme civil courts. These civil courts, on the other hand, have the exclusive right of determining whether the former have or have not so acted: and their right of correcting and coercing the Church courts extends to the spiritualia as well as the temporalia with which these may have to deal. And lastly, this interference may be claimed and set in motion by any one who can show any civil right or any civil interest affected directly or indirectly by ecclesiastical proceedings of the extraordinary nature supposed. For it is only in extra- ordinary cases that the question can arise—in cases where the wrongful act has been so wrongful as to lose the aspect of being judicial, and the protection which that aspect affords. We have referred to the so-called legislative power of the Church, and to its undoubted judicial power. Both may be held to be parts of its administrative function, and to this more general region may be referred another question which has been raised. The Church courts cannot exceed their legal powers, and: may be restrained from doing so. But must they exercise their legal powers, and can they be compelled to do so? Thus, in the case of creed, they cannot change the Confession of Faith, or use anything else as their standard. But must they use it? Can they decline to exercise their functions? Has the Court power to enforce upon the Church the positive exercise of its judicial functions, and in particular, the administration of its creed ? There is a good deal to be observed on either side of this interesting question. Confining our view of the use of the Confession to the judicial function of the Church, or its deal- ing with heresy, we may remember, in the first place, that no process against a minister or probationer can be instituted ina kirk-session (Form of Process, vii. 1; Act 9, Assembly 1745). ORIGINATION OF HERESY CASES. Za “Tt belongs to presbyteries to receive and investigate charges against their characters.”1 But while the presbytery is the only court, the origination of such processes before it is two- fold. “A libel may proceed at the instance either of the presbytery within whose bounds the parish is situated, or of individual parishioners.” In the former case, the presbytery are both prosecutors and judges ; and they have successively the two questions to consider: first, whether they ought to libel at all—whether they ought to commence the process; and, secondly, whether, having raised the process, they are to find the libel relevant and proven. The second question is wholly judicial, and our previous remarks apply to it. The former is a point of administration, which, if not judicial, is at least committed to the discretion of the presbytery; and it is always a very delicate and often a very difficult one. The rules laid down in Church books are that the presbytery should be slow to raise a libel, and become prosecutors of a brother; and that this should only be done on a dis- tinct and credible accusation lodged with them by persons in the parish, or on a vague but loud and unmistakable fama.’ But of the sufficiency of these reasons the presbytery seem to be absolutely the judges; so absolutely, that only some such outrageous case as we saw excepted by the Court in the case of Sturrock would entitle the civil court to inter- fere with their proper and sacred function. That a case could be figured where the general fama, or the particular allegation laid before the presbytery, might be so intolerably strong as to make it dangerous for them, even in civil law, to decline to take it up as prosecutors, is conceivable. But it is barely conceivable, especially when we. remember that it is at all times open to individuals within the parish to prosecute if the presbytery refuse, or whether they refuse or not. Any male parishioner may prosecute for heresy, and the pres- 1 Dr Hill’s Practice in the Church 2 Form of Process, Cook’s Styles. Courts. Hill’s Practice. 212 THE ESTABLISHED CHURCH AND ITS CREED. bytery have no power to decline taking up the case. And it is not necessary that the parishioner should be in communion with the Church. “In the case of the libel against the Rev. James Scott, minister of Banchory-Ternan, the objection to the title of the prosecutor, who was patron and one of the principal heritors in the parish, that he was not also in com- munion with the Church, was repelled (Assembly 1845, sess. 8); and in another more recent case, the fact that the lbeller, the principal heritor and vice-patron of the parish, was not a member of the Church of Scotland, although brought under the notice of the Assembly, was not founded upon as an objection to his title (Hope, Assembly 1849, sess. 10, 11).”? In these cases it will be observed that the libeller had an im- portant civil connection with the parish as heritor, but his right to bring the ecclesiastical charge was seemingly no stronger than that of any individual in the parish, and was certainly weaker than that of every one within it in com- munion with the Church. And when such a charge is brought, the presbytery seem to have no such discretion as to receiving it as they had in the question whether they would become prosecutors or not. No doubt they are the exclusive judges in the case; but a judge has no power to dismiss a case unheard and uncalled. In exercising the judge’s function he is privileged and protected, whether his judgment be right or wrong. But the Auchterarder case makes it for ever clear that there is no safety in refusing to exercise that function—in declining. to judge.2 When a libel has been presented to the presbytery, whether at the instance of the presbytery itself or of individuals, the only thing to be done is to cite the accused, receive his defences, and proceed to “judge of the relevancy of the libel.” Our ecclesiastical law still retains this important peculiarity, 1 Dr Cook’s Styles, 106 (edition case the Court could not be at once 1856). invoked against the presbytery without Nor is it at all clear, from the pre- the necessity of appealing even to the cedents of 1839-1843, that in such a higher ecclesiastical tribunals. THE LIBEL IN HERESY. 213 that before any proof of the facts alleged in the libel can be taken, their relevancy to infer the conclusions of the libel must be affirmed. The result of this is that all questions of general interest emerge on the very threshold of every ecclesiastical process ; and while a recent Act (Assembly 1851, 2d June, sess. 15) appoints the presbytery, after finding the relevancy, to go on to proof notwithstanding any appeal taken to the superior courts against this their judgment, reserving the dis- cussion of these appeals till the case is closed, there is a special exception of cases “which involve error in doctrine.” In these cases the old form of process still holds. Not only does the judgment on the relevancy come first, but that judg- ment must be finally settled by the court immediately con- cerned, or by the court of appeal, before anything more can be done in the case. “The body of the libel consists of three parts, which, to- gether,” it is commonly said, “should form a regular syllogism. The first or major proposition sets forth the criminality of the species factt charged, and alleges the guilt of the accused ; the second, or minor, narrates the facts of the particular offence; and the third, or conclusion, deduces the justice of punishing the individual offender.”! The major proposition, or first part of the so-called syllogism, must always be a doc- trinal statement in the class of cases which we are considering. In one of the most famous cases of alleged heresy with which the Church of Scotland has had to deal, the following was the major: “That albeit the doctrine of universal atonement and pardon through the death of Christ, as also the doctrine that assurance is of the essence of faith and necessary to salvation, are contrary to the Holy Scriptures and to the Confession of Faith approven by the General Assemblies of the Church of Scotland, and ratified by law in the year 1690; and were moreover condemned by the 5th Act of the General Assembly held in the year 1720 as being directly opposed to the Word 1 Dr Cook’s Styles, 106. 214. THE ESTABLISHED CHURCH AND ITS CREED. of God, and to the Confession of Faith and Catechisms of the Church of Scotland; yet true it is and of verity, that you hold, and have repeatedly promulgated and expressed the foresaid doctrines from the pulpit or other places; in so far as,” &c. This older example does not follow the rule which Dr Cook in his ‘Styles’ lays down, that “if a statute or act is to be founded on, the passage of the statute or act should be quoted at length in the major proposition ;” and indeed the form of libel is somewhat different from what, according to the same authority, seems to be generally used. That form runs, “ Albeit, by the Word of God, and the laws and discipline of the Church of Scotland, is an offence of a heinous nature, unbecoming the character and the sacred profession of a minister of the Gospel, and severely punishable by the laws and rules of the Church; yet true it is and of verity, that you are guilty of the said offence, in so far as,” &c. The minor ought to contain a detail of circumstances which amount to the general offence set forth as criminal in the major. This narrative is introduced by the words, “in so far as,” as above, and must set forth the time, place, and cir- cumstances of the alleged offence or offences. . It follows that the judgment of relevancy is twofold. The major proposition or statement that such and such a doctrine is a crime against the creed must be found relevant first, and then follows the question, whether each or all of the separate utterances alleged, which make up the minor, amount to this doctrine: Each of these must be found separately, and any number of the propositions in the libel may be found irrele- vant and struck out, provided a major proposition be left, under which the surviving charges of the minor may be legiti- mately and relevantly grouped. It is obvious that it is under the question of relevancy that the most interesting questions in reference to the creed of Scotland may be expected to arise judicially. It is at this RELEVANCY OF THE LIBEL. 215 point alone that important errors in the administration of the creed may be made. It is here that a practical refusal on the one hand to execute the creed at all, perhaps amounting to an abnegation of legal functions, may be possible. Here, too, an excessive and outrageous application of the existing creed may take place, quite equivalent to the addition of a new and private faith to the common and authorised standard. Yet, in looking at the question how far the law can at all concern itself with such actings of the ecclesiastical court, the first thing to be kept in view is that the judgment of relevancy is undoubtedly and eminently a judicial act. It is not minis- terial, like the act of a judge in receiving a libel and citing the accused,’ but is judicial Whatever has been already ascertained in this chapter with regard to the protection to which such acts are entitled, is applicable to this first act of the presbytery as much as it is to their findings upon the evidence, and their decision of the whole case. And, there- fore, while the members of the Church courts are statutory functionaries, legally bound to administer justice in cases of heresy and doctrine (and that according to the Church’s pub- lic and avowed confession), and while the allegation that by their interlocutor of relevancy, in any particular case, they had denied such justice, and by wilful contempt or extreme neglect of law had caused serious civil injury to one of the lieges, would not be incompetent, yet such an allegation would be so excessively difficult to prove, that the attempt to bring it forward in the civil courts is unlikely and remote. It might be possible to make such an allegation so strongly, and with such a detail of extreme circumstances, that the Court could not throw it out on the mere ground of the exclusive ec- clesiastical jurisdiction. But such a case, even if admitted to a proof before answer, would have little chance on the 1 The judge does this—receives the retically distinct, were aetanlly sepa- libel, and compels the attendance of rated, and assigned to different per- the accused —not as judge, but as_ sons, in the Roman law. magistrate. The two functions, theo- 216 THE ESTABLISHED CHURCH AND ITS CREED. principles of the cases before 1843, and very little indeed on those of the cases decided since. It must be remembered that the jurisdiction in heresy is not only peculiarly appropriate to the Church, but that it has been /e/t in her hands by the State, rather than expressly given by statute; and that the creed is declared by the Revo- lution statute to be the “public and avowed Confession,” but: not the standard, of the Church, though the Church has itself always used it as the latter. Farther, the extent in which the Church shall use it as a standard seems to be nowhere regulated or prescribed by law. On this last point it may be remembered that the ordinary form of libel states in the major that the delinquency, whether heresy or otherwise, “is ? a heinous crime and severely punishable ;” and the question of degree, or heinousness, is certainly for the Church court. Some remarks on this may be appropriate. The “Form of Process” approved by the General Assembly in 1707, declares that “nothing ought to be admitted by any Church judicatory as the ground of a process for censure but what hath been declared censurable by the Word of God, or some act or universal custom of this National Church agreeable thereto ;” and it is intimated that what the judicatories ought to take notice of are scandals—z.e., things not merely evil, but which, being evil, offend also the moral or religious sense of the community, and are of dangerous example. Error in doc- trine evidently has, or may have, such a position; for among the processes which “natively begin at the kirk-session,” or lowest or congregational court, but which “for the atrocity of the scandal, or difficulty in the affair, or general. concern,” should be at once remitted to the presbytery or higher court, consisting of the ministers and elders of the district, are enu- merated “heresy and error, vented and made public by any in the congregation.” What, then, is heresy? A modern divine of much authority within the Established Church as now constituted says: “Heresy, when considered as a legitimate WHAT AMOUNTS TO HERESY ? 217 object of Church censure, denotes not the entertaining of a false opinion in the mind, but the publication of that opinion by discourse or by writing. Secondly, heresy, when considered as a legitimate object of Church censure, must respect some fundamental and pernicious error.”! This agrees sufficiently with the utterance of the most ancient standard of the polity of the Kirk, which declares, “If any minister be deprehended in any notable crime, as whore- dom, adultery, manslaughter, perjury, teaching of heresy, or any other deserving death, or that may be a note of perpetual infamy, he ought to be deposed for ever.” But then follows the definition of heresy: “By heresy we mean pernicious doctrine plainly taught, and openly defended” (in another edition it reads, “obstinately defended”) “against the founda- tions and principles of our faith ; and such a crime we judge to deserve perpetual deposition from the ministry; for most dangerous we know it to be to commit the flock to a man infected with the pestilence of heresy.” ? In recalling to our readers these points, we do not mean to imply that the Church ought not by law to use the whole Con- fession as its creed and test ; but merely that, in the event of any of its judicatories seeming not to do so in a particular case, it would be exceedingly difficult to invoke the civil law to protect the orthodoxy which the appointed guardians of it were alleged to have slighted in the exercise of their proper jurisdiction. A formal resolution to ignore the creed is one thing: the actual neglecting of it, or any part of it, is another. But it may be argued, though the law in most matters leaves the creed to the independent administration of the Church, it has taken the complete orthodoxy of ministers and probationers under its special cognisance by the Statute of 1693, ordering subscription. This does not, however, appear to be conclusive. The Statute of 1693 is not like the old one of 1572. It merely 1 Dr Hill’s View of the Constitution, 82. 2 First Book of Discipline. 218 THE ESTABLISHED CHURCH AND ITS CREED. orders subscription at entering upon the Junction of minister or probationer ; and it might plausibly be argued that, by thus providing a guarantee of orthodoxy once for all, it intends to liberate the party signing from any subsequent inquisitorial proceedings on the part of the Church courts. And even Church courts, when prosecuting their ministers for error in doctrine, have not usually adduced the breaking of the sub- scription engagement as an aggravation. The great nomen juris of heresy has been found in Scotland weighty enough and odious enough without adding an imputation which harasses pure and tender minds in proportion to their ten- derness and purity. The Church courts have seemingly not the power of demanding a renewed subscription from a minister; or of forcing him to say how far he now adheres to the clauses of the Formula. It is rather as a case of heresy that they must take it up. Subscription is, no doubt, intended to exert a certain influence over the whole of the rest of a man’s life, and to bind him to doctrinal truth by good faith and honesty. But it must be remembered that the clauses which refer to the future in the existing Formula do not belong to the Act of Parliament, but were chiefly introduced by the Assembly. And while, if the Church enforced them strictly, the Court might probably not interfere in the direction of freedom, it is almost impossible to imagine that it could in any case step in to compel the ecclesiastical court to greater strictness in this which is so much its exclusive territory. _ APPENDIX. 219 APPENDIX TO CHAPTER IV. NOTE A. OPINIONS ON THE LEGISLATIVE POWER OF THE CHURCH. In the original Auchterarder case, Lord Medwyn said (Robertson’s Report, ii. 147) :— “Tt is true the Church has legislative powers. In this respect it re- sembles a corporation or society which has the power of making by-laws for its internal government and regulation, But the Church holds this power on a still higher footing, and in this respect is altogether unlike an ordinary corporation. A corporation derives its existence and its privileges solely from the sovereign or executive power. The Church has a different origin.” Lord Meadowbank said (Report, ii. 108, 109) :— “That a power of legislation exists in the Church, to a certain extent, no one can possibly deny. Its General Assemblies are authorised by the Confession of Faith, which forms part of the statute law of the land, ‘to determine controversies of faith and cases of conscience—to set down rules and directions for the better worship of God and the government of His Church—to receive complaints in cases of maladministration, and autho- ritatively to determine the same.’ But these are all the powers which, in the Confession of Faith, the Church lays claim to, in any part of this, which it required the Legislature, in the year 1690, to recognise as the charter of its rights, and as exhibiting the extent of its legal powers... . “In like manner, in the Statute 1592, I can find no sanction for ap- pealing to any power of legislation derogatory to or subversive of any of the municipal and legislative enactments of Parliament, or of the civil rights of the people. And holding the Church to be but the creature of the law, and that every power which it possesses is derived from the law, it must follow, as a necessary consequence, that if those powers of regulating its own affairs, which it has nicknamed a power of legislation, are exceeded, the Church, like every other body of temporal creation, must, in the exercise of its temporal powers, whether of adjudication or alleged legislation, be subject to the control of the civil magistrate repre- sented by your lordships.” 220 THE ESTABLISHED CHURCH AND ITS CREED. The curious inconsistency (verbal at least) between these two paragraphs of Lord Meadowbank’s speech is repeated in the more important speech of Lord Gillies (Report, 11. 25, 30) :— “Here again it is said that the General Assembly is a legislative body. So is every corporation. For the nature and extent of its legislative powers, I turn to Bankton, ii. 592, who there says: ‘The jurisdiction of the General Assembly is either constitutive or judicial. The first con- sists in making acts and canons ordering the method of proceeding in matters before them, and other affairs touching the discipline and gov- ernment of the Church, im the same manner as other corporations make by-laws. Not legislative but constitutive powers are assigned to it by Bankton. Thus its power is just that of making by-laws—a privilege, properly speaking, of corporations. Every corporation has privileges. The power of making by-laws is one of its privileges. I certainly mean and wish to say nothing disrespectful to the Assembly. On the contrary, I feel great regard and veneration for it. It holds, and properly holds, a high place in our constitution ; but as to its legislative powers, I humbly think, with Bankton, that they are just analogous to the powers or privi- leges of corporations generally to make by-laws. Its laws are perfectly good, if they are completely consistent with the law of the land, and do not interfere with civil rights; but good for nothing, if inconsistent in any degree with either. Good also, if ratified by Parliament—as are the by-laws of the town of Edinburgh and other corporations. “ As to this claim of legislative power, I have one observation yet to make. If the claim is good, there is a union in the same body of judicial and legislative power. This is reprobated by every political writer. 1 am aware of the Barrier Act, requiring the concurrence of the presby- teries ; but that does not affect my argument. If the General Assembly of the Church combines the legislative with the judicial power, and if its judgments must take end in it as a court, then indeed its power is supreme and unexampled. But it is said that this is only in matters ecclesiastical, which obviates the danger,” &c. The chief other references which we find to legislative power are in the second Auchterarder case, the Strathbogie interdict, and the Stewarton or guoad sacra churches case. In the first of these (Kinnoull v. Ferguson, March 5, 1841, 3 D. 787), Lord Cuninghame, Ordinary, says, in the note to the inter- locutor affirmed by the Court :— “The Scottish Legislature, from the first, gave only the most limited power to the Kirk. The Legislature prescribed their creed, fixed the constitution of the ecclesiastical bodies, by repeated provisions as to the rights of presentees, and conferred on Church courts the very limited APPENDIX. 221 powers legally possessed by them, chiefly in cases of examination and heresy. The Kirk, therefore, can no more, of their own authority, dis- regard any of these fundamental statutes than they can, by a direct law of their own, abolish the whole of the present system of Church govern- ment (as the General Assembly of 1638 did), and substitute a new one in its place. When such an attempt is made, in whole or in part (and the exclusion of a qualified presentee is of that description), it is clearly open to the Supreme Civil Court of the State, as the constitutional expounders of the statutes, to afford protection and redress to the lieges, when they have sustained injury by a manifest departure from the law.” We have already quoted a similar utterance of this judge, on p. 147, from the case of Cruickshank v. Gordon, March 10, 1843,5 D. 909. In the Strathbogie case (February 14, 1840, 2 D. 606) one of the heads of the Court, Lord President Hope, said :— “The Church courts cannot go one inch beyond the limits which the law has assigned to them, The Presbyterian form of Church government is not an innate or self-created system. The Church, as an Established Church, did not give it to itself. The Reformation took place in 1560, and it was not till the Act 1592 that the Presbyterian form of govern- ment was created. It was created by that Act, which is the charter of the Presbyterian Church. It was not at its creation endowed with all the powers which it would have assumed to itself in the two Books of Discipline, nor, generally, with any powers such as it might afterwards choose to assume to itself. It was created with definite powers, and under various obligations, one of which expressly was, that the presby- teries should be bound and astricted to take on trials the presentee of the lawful patron. But we are told that this Established Church, which exists by statute, may go beyond its statutory powers, and usurp what- ever powers it thinks necessary for ecclesiastical purposes. Were this well founded, we should not only have an empervum in imperio, but an imperium super imperium, in this country.” We conclude with the statement already quoted, of the Lord Justice-Clerk Hope, in the Stewarton case (Report, p. 60). He had by this time succeeded Lord Justice-Clerk Boyle. “Statute has specially described the species of authority given to the Established Church. Its power of government is defined in different statutes, by terms which, to my mind, are clear and unambiguous; and in these statutes I find no legislative power granted to the Church, placing any changes within their competency. I do not find the recognition of any 222 THE ESTABLISHED CHURCH AND ITS CREED. general and undefined legislative power. On the contrary, I think both the Statute 1592 and the statute at the Revolution, restoring Presbytery and embodying the Confession of Faith, exclude the least pretence to such power in the Church. These statutes are framed with most delicate and deliberate caution; and I think they settle and establish the Church of Scotland within limits the most precise, and with authority expressly limited to purposes therein set forth.” NOTE B. BARRIER ACT AND ITS PREDECESSORS. 1, Act 1639. The General Assembly, desiring that the intended Reformation, being recovered, may be established, ordains, that no novation which may dis- turb the peace of the Church and make division be suddenly proponed and enacted; but so as the motion be first communicate to the several synods, presbyteries, and kirks, that the matter may be approved by all at home, and commissioners may come well prepared, unanimously to conclude a solid deliberation upon these points in the General Assembly. 2, Act 1641. Since it hath pleased God to vouchsafe us the libertie of yearly Generall Assemblies, it is ordained, according to the Acts of the Assembly at Edinburgh, 1639, and at Aberdene, 1640, that no novation in doctrine, worship, or government, be brought in or practised in this Kirk, unless it be first propounded, examined, and allowed in the General] Assembly ; and that transgressors in this kinde be censured by presbyteries and synods, 3. Act 9,1697.—Act anent the Method of Passing Acts of Assem- bly of general concern to the Church, and for Preventing of Innovations (commonly called the Barrier Act). The General Assembly, taking into their consideration the overture and Act made in the last Assembly concerning innovations, and having heard the report of the several commissioners from presbyteries to whom the consideration of the same was recommended, in order to its being more ripely advised and determined in this Assembly; and considering the frequent practice of former Assemblies of this Church, and that it will mightily conduce to the exact obedience of the Acts of Assemblies, that General Assemblies be very deliberate in making of the same, and APPENDIX. 223 that the whole Church have a previous knowledge thereof, and their opinion be had therein, and for preventing any sudden alteration or innovation, or other prejudice to the Church, in either doctrine, or wor- ship, or discipline, or government thereof, now happily established ; do therefore appoint, enact, and declare, that before any General Assembly of this Church shall pass any Acts which are to be binding rules and con- stitutions to the Church, the same Acts be first proposed as overtures to the Assembly, and being by them passed as such, be remitted to the con- sideration of the several presbyteries of this Church, and their opinions and consent reported by their commissioners to the next General Assem- bly following, who may then pass the same in Acts, if the more general opinion of the Church thus had agreed thereunto. NOTE C. OPINIONS ON THE PRESENT JUDICIAL POWER OF THE ESTABLISHED CHURCH, I. Case of Sturrock v. Greig, 3d July 1849, 11 D. 1220. In this case the Lord Justice-Clerk Hope said :— “The procedure before the kirk-session raises the important question we are to decide—a question of the greatest delicacy, and of unspeakable importance. With a view to that, the material point is the matter of fact already adverted to, that the pursuer distinctly stated to us, that the ground of action against the kirk-session for defamation and damages in this part of the case, was the actual findings and sentence of the kirk- session in the case of discipline brought before them. He admitted, most fully and fairly, that he did not found on any preliminary state- ments or narrative in the minutes, but distinctly, solely, and purely on the findings and sentence pronounced by the kirk-session, as their deliverance and judgment on the matter which came before them. “The defenders then maintain that no action will lie in law against them, the kirk-session—minister and elders—for any sentence or judg- ment pronounced by them in a proper case of discipline duly brought before them—pronounced by them as a Church court, on matters which are clearly proper questions of discipline, and so within their competency and province as a Church court, even although the pursuer avers that the findings and sentence—their judgment, in short—was pronounced maliciously and without probable cause. I add the latter quality, because none of us had any doubt that the want of probable cause in any view must be averred, and because, when the pursuer came to explain his case, he substantially and practically admitted that he must establish to the 224 THE ESTABLISHED CHURCH AND ITS CREED. jury the absence of probable cause. The plea of the defenders, however, is that, even when these qualities are distinctly alleged, still no action for damages can, on the facts averred, be maintained in point of law. “Then, what are the facts, as they appear on the face of the pursuer’s statement, and the proceedings he sets forth? First, that one of the kirk-session, the minister, brought before them, and that the session entertained, a charge involving a matter of Church discipline against the defender, he being a member of the Established Church, and subject to its discipline as such, and also as the parochial schoolmaster of the parish: that this charge was taken up by the kirk-session in its capacity as a judicature of the Church: that the matters of complaint against the pursuer, so stated to the kirk-session, were within the cog- nisance and competent jurisdiction of the kirk-session, as proper matters of ecclesiastical discipline, according to the laws of the Church, apart of course altogether from any question as to the propriety or discretion of the proceeding; this was distinctly admitted: that the kirk-session took the matter up in their capacity as a Church court, and in no par- ticular went beyond their duty, competency, and province as such judi- catory—laying aside as wholly immaterial, as it was admitted to be, the irregularity in point of form on the first reason, in holding that the party ought to have appeared, in consequence of a certain letter, and was pronounced against in absence as contumacious: that his case was entered on and discussed—his defences heard, and professedly taken into consideration, and judgment finally and competently pronounced on the charges then competently brought before them. “ All these facts are, in truth, admitted, in the way the case is brought before us. “Hence the kirk-session were acting within their competency, duty, and authority as a Church court, in considering a question of discipline duly brought before them, respecting a party, rateone officir, and ratione status personalis, subject to their discipline, being a member of the Church, Then the procedure is that of a deliverance and judgment by the kirk-session acting as a Church court. on this proper matter of dis- cipline brought before them as a court, to whose ecclesiastical jurisdiction (I prefer the term to ‘spiritual’) the pursuer was subject. “He avers that they entertained, entered upon, and disposed of the alleged violations of religious duty, and irregularities in point of dis- cipline and order, by him, as a member of the Church, maliciously and without probable cause, and with these dispositions judged of the case, and pronounced the sentence of suspension from Church privileges. The pursuer has already appealed against this deliverance and sentence of the kirk-session, and has obtained a reversal and acquittal from the supreme Church court, the General Assembly. “It is to be observed, that no case is stated of subornation of testimony by the defenders, of preparation of false evidence by forgery or otherwise, of fabrication of documents, or alteration or vitiation of the same— nothing amounting to a crime, or even to any overt act, in violation of APPENDIX. 225 their duty. I notice such cases, and many other extreme cases might be figured, in which other elements might occur, in which the question might not be, as here, With what motives did the defenders discharge their duty? I desire to give no opinion except on the general case, very fully and fairly raised on the record before us—which seemed to all of us, I believe, to raise a general point, depending on no specialties averred by the pursuer, or appearing on the face of the proceedings. I repeat, that on that general case alone I give my opinion—reserving for con- . sideration any special case; and I can easily conceive any which might arise regarding the conduct of a Church court, even when in the exercise of its proper province of discipline. “T am of opinion that, on the facts of this case, as above explained, an action of damages cannot be entertained, notwithstanding the averment of malice and want of probable cause, against the kirk-session. “T have, I admit, great jealousy and distrust of Church discipline exer- cised judicially, and by the infliction of Church censures, or suspension of Church privileges—great jealousy of the spirit, temper, and feelings with which it is liable to be exercised—and the utmost distrust not only of the fitness of the fallible office-bearers of every Church who attempt to exercise it, but of the expediency and good for the interests of the Church, except in very flagrant cases, of that mode of enforcing the authority and principles of religion, or of preserving the purity of the Church as a body, the obedience to the faith of its members, and the influence of the courts of the Church. But this is not the place to discuss the great questions which occupied the mind and talents of Calvin and Knox, or the wisdom of the powers actually intrusted to the Church courts of this country, by the laws and constitution of the Church, although greatly modified and softened in practice. “JT distrust the mind of man when invested with the high prerogative, so flattering to pride, so apt to magnify trifles into acts of irreverence, sinfulness, and irreligion, for the duty of judging of the religious conduct and motives of others—by whomsoever that prerogative shall be exer- cised; and I cannot forget that, under the discipline of one of the best Christians and greatest theologians the Church ever knew—that of the great Calvin—414 publie trials took place before the Consistory in two years (1558 and 1559), ending not only in Church censures, but many in civil punishments, for matters, a great number of which there is nota pious Christian of the present day would not deem wholly unfit to be noticed in any other way than by private rebuke. “J think it right to say this, that I may not be suspected of dealing with the very serious question, raised by the defenders, in any other spirit than that of a lawyer. But, on the other hand, I am very clearly of opinion that, on the facts as above stated, an action for damages against the Church judicatory, acting in a proper case of discipline, will not lie, although malice and want of probable cause shall be averred. “We must attend to what is involved in the subjection to Church dis- cipline, undertaken and submitted to by every one who joins any Church Pp 226 THE ESTABLISHED CHURCH AND ITS CREED. in which Church discipline is to be exercised by the office-bearers or courts whom the Church intrusts with such authority, and to whom they hold that such authority over the members of the Church is committed by our Lord, in His commission to the ministers and presbyters and office-bearers of the ministry of the Gospel. There can be no doubt that, according to the Word of God, as interpreted and adopted by the Church of Scotland, that authority is bestowed, and the members of the Church subjected to the discipline flowing from that authority. “We are not now discussing the right principles of Church government according to the Scriptures, neither are we to consider the extent of the authority over the members of a dissenting establishment flowing from the principles sanctioned among themselves, and submitted to by the act of joining the same. I avoid the question as to whether similar protec- tion extends to their Church courts, solely because that is not the case before us—but not from any doubt now entertained by me that they may claim the same. I take simply the fact that the Church of Scotland, as established by law, has adopted—and that statute has declared and pro- claimed that, according to the Word of God, as interpreted by the Church of Scotland, its Church courts are invested with—the right and duty of discipline over its members; and that such right flows from the divine institution of the Christian ministry, and of the presbyteries which the Church of Scotland holds to be, although not of divine prescription, as the only form of Church government, but as founded on and as agreeable to the Word of God. “No one need be, unless he chooses, a member of the Church of Scot- land, or of any particular sect, in the constitution of which there are things to which he objects. If he joins the same—and, if I understand the statements here, the pursuer did so deliberately, after being employed in the teaching of youth, and therefore of mature years—then he must take its constitution as he finds it. He must be subjected to the autho- rity and discipline of the Church, and he must be content to acknowledge the authority under which that discipline is exercised to be of divine institution, and bestowed by the great Head of the Church on the office- bearers of the Church over him—if such shall be the view taken of his subjection to Church discipline by the laws of the Church of Scotland. “No doubt all this is a very grave and weighty question— one of the most serious with which legislation or the arrangements of Volun- tary Churches have to deal. No doubt such views of the origin and character of the authority of the Church over its members, whether an Established or Dissenting Church, intrust much to the weakness and frailties of human nature. But if the Church which the individual has joined, being the Church of Scotland, has proclaimed and announced its views of Scripture on this subject,-and placed its members under the discipline of the Church, by reason and in respect of the authority bestowed on the Church acting through its office-bearers by divine ordination and appointment; then, according to that very theocracy, so established, the member of the Church must acknowledge and submit to APPENDIX. 227, the authority under which the discipline is exercised over him. In an establishment he may have this advantage, that the grounds on which discipline can be exercised over him may be defined by, or must be con- sistent with, law; and, whether some think this interferes with the spiritual liberty of the Church, at least in this question it removes one great source of objection to the plea contended for by the defenders, and affords the members of the Established Church a protection which it may be—I only say it may be—the constitutions of Voluntary Churches may not have given as clearly as they have established the subjection of their . members to ecclesiastical discipline. “Now Iam not about to state theoretical views as the result of a theological inquiry as to the nature of the authority of a Christian Church and its office-bearers over its members. The inquiry here is simply, What is the sowrce, foundation, and character asserted by the law of the Church of Scotland for the authority of the courts of that Church over its members, and the extent of their duties and dominion, the exercise of such discipline, and of the character and kind of submis- sion to that discipline, which the view taken by the Church laws of its origin and high authority necessarily fixes down on those who have sub- jected themselves to the jurisdiction of the Church ? “We have to deal only with a party who has deliberately by choice, we must presume, and still more by the acceptance of an office, but still voluntarily, subjected himself to the discipline of the Church of Scotland, whatever that may be. “Clear it is to my mind that he can have no claim for reparation of alleged wrong, said to be committed in the exercise of that discipline, if that claim is utterly irreconcilable with the character of the authority over him which he has acknowledged, and with his subjection to that authority. “Tt will be of no avail to him to state as a general plea, ‘I aver I have been greatly injured: your defence will arm the Church court with powers which may exterminate and crush individuals, ruin character, and destroy peace of mind: it is tyranny over the mind, and over the character, not safe to enforce; and there is no form of it more hideous, more oppressive, more appalling, than that exercised under the power of Church discipline.’ “Tt may be so. Viewing such discipline as a likely source of abuse in the hands of man, there may be some truth in the dogma. But in this case it is only a dogma, if the Church of Scotland, as by law established, has settled the character of the authority which it exercises on discipline, and the nature of the subordination of its members to their office-bearers who exercise such authority. Now, then, what is the character in respect of which the office-bearers of the Church of Scotland exercise jurisdiction in proper matters of discipline falling within their competency, to the extent to which law has admitted their functions and jurisdiction, and what is the nature of the subjection which the members of the Church have acknowledged they owe to that authority? The subjection is of a 228 THE ESTABLISHED CHURCH AND ITS CREED. nature peculiar—exclusive—distinct from all others, and that in respect of the source from which the authority is derived. “In the consideration of this matter I go no farther than the Act 1690, establishing the Church in Scotland, and containing, as a statutory enact- ment, the Confession of Faith. That this statute may have been intended to apply to all the subjects may be true, from the hope that thereafter dissent could not exist. But at least its enactments are binding on all the members of the Church, and part of the statute is even broader. “Tts object is declared to be ‘ the government of Christ’s Church within this nation, agreeable to the Word of God, and most conducive to the advancement of true piety and godliness.’ Then the statute ‘ ratifies and establishes the Confession of Faith subjoined, as the public and avowed Confession of this Church.’ Further, it ‘ ratifies, establishes, and confirms the Presbyterian Church government and discipline ’—that is to say, it revives the Act 1592, and describes the judicatories of the Church, kirk- sessions, and so forth. By that statute, 1592, the special jurisdiction of particular sessions as to maintaining of discipline and diligent inquiry ‘of naughty and ungodly persons,’ is very particularly set forth. “Then the Confession of Faith, the law of the Church by statute, treats separately, and with great discrimination, doctrinal or spiritual matters, and ecclesiastical matters. As to doctrinal matters, it distinctly subjects all false doctrines to the censures of the Church. And, in con- sidering the question now before us, we must remember, that if an action will lie in a case of discipline such as the present, it must equally lie in a case where the Church courts, acting within their competency as to the proper doctrines of the Established Church—adding nothing thereto as requirements from its members—have judged of -heresy, and suspended or deprived a minister in respect of false doctrines; a notion utterly repugnant, surely, to any conception which can be taken of the authority of the Church courts in the Church of Scotland, as developed in the Westminster Confession of Faith. They may be limited in their powers as to what shall be the doctrines of the Church; but I am treating at present of an inquiry into their motives, when the matters are within their competency, and when they are dealing with the recognised doc- trines of the Church. The Confession then, in chapter 30, comes to the title of Church censures—the title is short, and I shall read it all— [reads]. . “Now, the first section announces a great truth of the Church—liable to misapprehension, doubtless, but a doctrine which is the foundation of the whole authority and government of the Church over its members— that is, that in the matter of discipline, whether as to doctrine or evil practices, or non-observance of Church ordinances, the Church is exercis- ing a government through its Church officers, appointed by the Lord Jesus, distinct from the civil magistrate. “ Whatever questions have been raised as to the wider effect of this declaration, to which I need not now advert, this is undeniable, that, in regard to discipline, the authority of the Church, as a distinct and APPENDIX. 229 separate government, is so derived from that source. To that declaration, as the foundation of the exercise of Church censure over the members of the Church, I think courts of law must give full effect, as much as to any other statutory enactment. It is not our place to consider the truth of this declaration; if it were, I should be prepared to defend it. Neither are we to consider whether it will arm men with alarming power, capable of producing great mischief. The statute has given the remedy in the courts which it trusted—in the appeals competent to the superior Church courts. But the matter of discipline it has vested in the Church officers. “T need not pursue this point farther, for in the view I take of the case, the Church, in exercising discipline on its members, is thus exercis- ing that separate government for the Church, the authority and source of which is declared to be divine appointment. “From this I think it necessarily follows, that in matters clearly within the cognisance of Church officers or courts, as subject of Church censures (I keep to the exact case before us, and the law within the statute), when the Church judicatory is thus exercising the government so intrusted to it, its judicatories and officers are not amenable to the civil courts of the country in damages for alleged wrong. They have been trusted as a separate government. The declaration of the authority under which they act assumes that it must be separately administered—free from control—free from subjection or subordination to civil tribunals. “The inquiry into their motives—which is the very essence of the pursuer’s case—by other civil courts—it may be by men not even of the Church—is absolutely repugnant to the freedom which must belong to a Church in matters of discipline. “To any party alleging wrong by such courts, the answer, then, is plain, If these courts were acting wholly within the matter committed to them, they are distinct and supreme, and the authority under which they sit excludes any inquiry into their motives by civil courts. But hardship, in truth, there is not, whatever the party may feel, for he has chosen to subject himself, in all matters which can come within the dis- cipline of the Church, to the Church of Scotland as established by law; and the authority of that Church, in cases falling within discipline, has been announced and fixed. “The view that may be taken of this matter by independent religious bodies, unless their constitution is very express, may go much further ; and it may be that their Church courts may have, as against their own ministers, the sole right to decide what is competent matter for Church discipline and ecclesiastical government. And such bodies may consider it an objection to the purity and independence of the Established Church, that it does not possess such power uncontrolled. But to the members of the Establishment there is, on the other hand, the benefit of the pro- tection which the establishment of a Church by statute implies—viz., that the Church courts must act within the limits assigned to them. Now the opinion I give applies solely to a case in which, as here, it is distinctly admitted, or plainly appears, that the Church censures were enforced in 230 THE ESTABLISHED CHURCH AND ITS CREED. respect of matters clearly falling within the discipline competent to the Church, and of which the Church court had entire cognisance. “This view will not surround these courts with protection, if they exceed their jurisdiction—e.g., to take a case I stated many years ago: If a kirk-session, on grounds of discipline within their cognisance, refuse a member of the Church admission to the Lord’s table—not rejecting his application without inquiry, but judging of his case, and on such grounds refusing to admit him—they are not subject to be compelled to receive him by the civil courts, nor can he call on the civil courts to inquire into their motives. But if they refuse to receive him, because he will not subscribe a covenant to extirpate Episcopacy in England, or to expel the Bishops from the House of Lords, or to assert the entire independence of the Established Church from the jurisdiction of the civil courts as to the extent of its forms, or on any ground palpably not within the subject of the separate government of the Church by its officers which the statute acknowledges, then they have not the same complete protection; so, also, if Church courts refuse to perform a duty imposed on them by statutes, as a part of the ecclesiastical constitution of the Church. “J am not afraid, then, of any hazardous results from the protection which I think the Church courts possess, from any inquiry into their motives when exercising, in the matters falling within Church discipline, that separate government recognised in the Church as of divine appoint- ment; for the limit of their protection is, I think, clearly defined, and is sufficient, as it has hitherto proved to be, to guard against any great abuse. And I see no other remedy, if there has been abuse, compatible with the declaration of the Confession of Faith, but an appeal to the higher judicatories; and of that appeal this pursuer had the benefit.” Lord Medwyn, in the course of his opinion, said :— “Tn every country in Christendom there are Church courts as well as civil courts: while the jurisdiction of the latter embraces all acts done by one member of the State to another, and to redress all wrongs done and suffered in that character; within the cognisance of Church courts are all matters of Church discipline founded on the conduct of the mem- bers, leading to many delicate inquiries into character, and which it is the duty of the office-bearers in the Church to inquire into according to forms prescribed. In discharge of this important duty, and while acting in their ecelesiastical character, the civil court can have no right to inter- fere with or control them. The two jurisdictions, the civil and ecclesias- tical, are as separate and distinct as the subject-matters about which they adjudicate, and the objects with which they act. The boundary between the two is not always very easy to define; but whenever the matter clearly falls within the proper province of the Church court, its proceed- ings cannot be questioned in the civil court. The Scottish Confession of Faith is declaratory of this distinction, and of the independence of the Church courts of the Established Church of Scotland; but the rule is not confined to these. I ascribe the right of independent Church government to a much higher source, and give it a much wider application: accord- APPENDIX. 231 ingly, our courts respect it in the case also of all tolerated sects—those other religious bodies where the members submit themselves voluntarily to the jurisdiction of the office-bearers of their Church, whatever it may be, so that no member can come to the civil court with a claim of dam- ages in a proper ecclesiastical question, implying a review of the proceed- ings of the Church court on its merits, on an allegation of a wrong done by that court. This was found in the case of Auchincloss against Black, 6th March 1793, reported by Borthwick, p. 405, where Lord Justice-Clerk Braxfield pronounced an interlocutor, finding it ‘incompetent to this Court to review the proceedings of Associate congregations, commonly called Burghers, when sentences are pronounced by them in their ecclesi- astical character” A similar judgment was given in another case, Grieve against Smith, 12th February 1808, as to the sect called the Berzeans. “Jt will not make it competent to apply to the civil court, by simply libelling that the proceeding was done maliciously and without probable cause. This averment is easily made; and more especially it will not avail, if no specific statement is made as to the cause and origin of the malice, nor any instances given of the indulgence of this improper feeling.” , 2. Case of Lockhart v. the Presbytery of Deer, July 5, 1851, 13 D. 1296. In this case we give the following quotations from the four judges of the First Division who decided it :— Lord President.— My lords, I do not think we require any further argument. The only question we have to determine is, whether this Court has any power to interfere with the proceedings of the Church courts in a matter of ecclesiastical discipline. Although we may form a different opinion in regard to matters of form, or even of substantial jus- tice, in my opinion we cannot interfere to quash the sentence. I listened with the greatest attention to the argument of Mr Logan, and though he opened the case with his usual ability, he cannot make bricks without straw. “Although I had the misfortune to differ from my brethren on the right hand, Lords Fullerton and Ivory, in the memorable cases of Auch- terarder and Strathbogie, I did so on the ground that these cases involved matter of civil right, and that the decisions of the General Assembly in- volved a departure not only from the statutes of the realm, but from the constitution of the Church itself. I stand clear of any inconsistency in holding the opinion I do in this case; for I hold that the matter involved in the proceedings before us is a pure question of ecclesiastical discipline. “We have not here anything like the question which was raised in the cases of Kilberry and Ferguson. These were the cases of schoolmas- ters, over whom the presbytery have jurisdiction by the force of a statute. The Court held that in these cases the presbyteries had deviated from the 232 THE ESTABLISHED CHURCH AND ITS CREED. forms which under the statute they should have observed—that they had deviated from the ordinary principles of justice and law—and that, acting under the Schoolmasters Act, they were bound to adhere to the rules which they had disregarded. “This case, however, stands on a ground totally different. No doubt the note of suspension contains very clamant statements as to the irregu- larity of the mode in which the case was conducted before the presbytery; but this was a libel at the instance of a presbytery against a clergyman charged with offences which infer deposition ; and after it had been fully heard before all the Church courts, the General Assembly, in discharge of a most solemn and painful duty, deposed this man from the office of the ministry. The offence was an ecclesiastical offence, the charge was tried in an ecclesiastical court, and we cannot interfere. We are just driven to ask this question, Does the Court of Session sit in review of the highest ecclesiastical court? We have just as little right to interfere with the procedure of the Church courts in matters of ecclesiastical discipline, as we have to interfere with the proceedings of the Court of Justiciary in a criminal question. ° “JT am therefore of opinion that this application is incompetent, and that the Lord Ordinary was right in refusing the note.” Lord Fullerton.—* I am perfectly satisfied that the Lord Ordinary was right. “This is an attempt which, if successful, would go far indeed. For, on the very principle that we are called on to suspend the proceedings taken by the Presbytery of Deer, under an order of the General Assembly, we may, and in all probability will, be called upon to review every sentence of the Church courts, which a party considers or maintains to be contrary to form, and unwarranted by the justice of the case. “T think it of the utmost importance that we should at once express our sense of the incompetency of any such attempt.” Lord Cuninghame.—“ I apprehend that the present case is not attended with any difficulty. The ecclesiastical courts have an exclusive jurisdic- tion in proper ecclesiastical cases ; and we are no more competent to review the proceedings of such courts on preliminary or incidental points, than their final judgments on the merits. “ On the contrary, it is notorious that Church courts have their own appellate jurisdiction, from which parties subject to them must seek redress upon all objections to evidence and forms arising in the course of a properly spiritual process. Accordingly, there can be no doubt that the very objection to evidence maintained in this suspension was competent to the suspender before the Church courts primary and appellate. And if these judicatories have disposed of it, can we review their judgment ? It would be altogether unprecedented and unconstitutional to do so. “Tt is said the suspender’s civil right in the benefice is affected by the proceeding complained of. But that consequence (which must follow in all trials for grave ecclesiastical delinquency) does not give the civil court right to assume a jurisdiction not belonging to them, but appropriately APPENDIX. 233 conferred privately.on Church courts. If it did, this Court might be called to review the sentence of a Church court in a case of heresy, which, it is obvious, would be preposterous.” Lord Ivory.—“ Tam of the same opinion. This Court does not sit as a court of review over the Church courts in ecclesiastical matters. We are asked to quash certain proceedings taken before the proper tribunal, the ecclesiastical court ; and we are asked to do so upon some such ground as this, that, being the supreme judicatory of the land, we have a control over all other judicatories, and are bound to keep them within their pro- per forms of procedure. “Even taking the matter in that view, it is only as a supreme civil judicatory that the Court can exercise these functions ; and it is one of the inconveniences, if inconvenience it be, of having two independent and supreme judicatories in the same kingdom, that each is necessarily supreme within its own province, and is not, with reference to matters falling within that province, liable to any review whatever. “Even where the matter is properly within the province of the civil court, and where we are interfering with an inferior civil judicatory, whose jurisdiction in that particular matter has been declared exclusive, and not subject to review, our right to control its proceedings arises from the fact, that the inferior judicatory has exceeded its powers. We inter- fere, because the inferior court has gone beyond its province, and has by doing so lost the protection of the statute under which it possesses exclusive jurisdiction. “T should no more think of disturbing a decision of the supreme ec- clesiastical court in an ecclesiastical matter, than I should think of dis- turbing the decisions of the Courts of Justiciary or Exchequer in a matter falling within their respective provinces. These courts may, in our opin- ion, have gone wrong in rejecting evidence which we would have received; but because there happened to be a diversity of opinion as to the propriety of rejecting that evidence, could it be maintained that it was competent to seek a remedy in this Court ? “Where any court possesses an exclusive jurisdiction, supreme within its province, any question arising within that province must be exhausted and brought to a close before that tribunal. Here the offence is ecclesias- tical, the procedure is ecclesiastical, and the whole matter was compe- tently dealt with by the supreme ecclesiastical court. If we are not entitled to review a sentence on its merits—even in the extreme case, that it is plainly against all principles of law and justice—still less can we interfere with any of the steps of procedure by which that sentence has been reached. “Suppose that the sentence we are called upon to review had been pronounced by the presbytery, and that the complainer was asking for interdict against any further proceeding until these witnesses had been admitted, would not the answer have been that he should go to the tribu- nal appointed to dispose of such matters—that his remedy lay in the ec- clesiastical court through all its gradations? If there be no remedy in 234 THE ESTABLISHED CHURCH AND ITS CREED. that case, neither is there any here. If a great wrong is to be redressed, the sooner it is corrected the better. We could not do it in the case sup- posed, because we have no jurisdiction—still less can we do it here. It would be a most dangerous precedent to entertain this application... . “T give this opinion with greater confidence, because in the memorable cases of Auchterarder and Strathbogie, in which I had the misfortune to differ from the majority of the Court, I was inclined to take the wider view of the ecclesiastical jurisdiction. I am bound to hold that these cases were rightly decided ; but what was the ground on which the Court interposed? It was not because they thought themselves entitled to in- terfere with the proper ecclesiastical jurisdiction of the Church courts, but because they held that the ecclesiastical courts were going out of their province, and were touching matters which were properly questions of civil right. That ground went to this, that in those questions, viewed as questions of civil right, the Church court was no tribunal at all.” NOTE D. DECISIONS OF THE ENGLISH PRIVY COUNCIL IN CASES OF DOCTRINE AND HERESY. A most valuable ‘Collection of the Judgments of the Judicial Commit- tee of the Privy Council in Ecclesiastical Cases relating to Doctrine and Discipline’ has been published by the Bishop of London (Murray, 1865), edited, under his lordship’s direction, by the Hon. Mr Brodrick, barrister- at-law, and by the Rev. Mr Fremantle, the bishop’s chaplain. The object of the publication is stated in Dr Tait’s preface to be to present “the series of those judgments which the Final Court of Appeal from the Ecclesiastical Tribunals in England has pronounced in causes relat- ing to doctrine and discipline since the Court assumed its present con- stitution” — that is, since the year 1833. The introduction gives a history of the right of appeal to the sovereign in English ecclesiastical cases, and of the various ways in which this has been exercised, down to the constitution of the present Court; and it observes that “there are a few leading principles which have been enunciated in the decisions of the committee, and by which the Court may be considered to be bound. The most important and comprehensive of these are to be found in the judgments in cases of doctrine—viz., those of Mr Gorham and Mr Heath, and of Dr Williams and Mr Wilson.” I, THE GORHAM CASE. 1 am indebted to the editors of this volume (page 64) for the following summary of the principles laid down in the Gorham case, given nearly APPENDIX. 235 in the exact words of the judgment: “ And it must be remembered that this case, being the first in which the limits of clerical liberty, in matters of doctrine, were brought under the cognisance of the Judicial Commit- tee, has been cited ever since as the leading case on the construction of the formularies of the Church of England in proceedings involving ques- tions of a like nature.” The positions so laid down are as follows :— “1, The question which the Court has to consider is, not whether the opinions impeached are sound or unsound, but whether they are contrary and repugnant to the doctrines which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its ministers. “2. The Court applies to the Articles and Liturgy the same principles of construction which are by law applicable to all written instruments, assisted only by such external or historical facts as it may find necessary to enable it to understand the subject-matter to which the instruments relate, and the meaning of the words employed. “3. In all cases in which the Articles considered as a test admit of different interpretations, it must be held that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something which the Church has elsewhere allowed or required. “4, If there be any doctrine on which the Articles are silent or ambigu- ously expressed, so as to be capable of two meanings, we must suppose that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formularies clearly and distinctly decide it. “5, Devotional expressions (in the Services) involving assertions, must not, as of course, be taken to have an absolute and unconditional sense. The meaning must be ascertained by a careful consideration of the nature of the subject, and the true doctrine applicable to it. “6, The whole Catechism requires a qualified or charitable construction. The Services abound with expressions which must be taken in a charitable or qualified sense, and cannot, with any appearance of reason, be taken as proofs of doctrine. “7, The Court does not affirm that the doctrines and opinions of eminent divines can be received as evidence of the doctrine of the Church of England; but their conduct, unblamed and unquestioned as it was, proves at least the liberty which has been allowed of maintaining such doctrine.” The following are some of the more important parts of the judgment ° in this case, as delivered by Lord Langdale on the 8th of March 1850 :— “These being, as we collect them, the opinions of Mr Gorham, the question which we have to decide is, not whether they are theologically sound or unsound—not whether upon some of the doctrines comprised in the opinions, other opinions opposite to them may or may not be held with equal] or even greater reason by other learned and pious ministers of the Church; but whether these opinions now under our consideration are contrary or repugnant to the doctrines which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its minis- 236 THE ESTABLISHED CHURCH AND ITS CREED. ters, so that upon the ground of those opinions the appellant can lawfully be excluded from the benefice to which he has been presented. “This question must be decided by the Articles and the Liturgy; and we must apply to the construction of those books the same rules which have been long established, and are by law applicable to the construction of all written instruments. We must endeavour to attain for ourselves the true meaning of the language employed, assisted only by the considera- tion of such external or historical facts as we may find necessary to enable us to understand the subject-matter to which the instruments relate, and the meaning of the words employed. “In our endeavour to ascertain the true meaning and effect of the Articles, Formularies, and Rubrics, we must by no means intentionally swerve from the old-established rules of construction, or depart from the principles which have received the sanction and approbation of the most learned persons in times past, as being on the whole the best calculated to determine the true meaning of the documents to be examined. If these principles were not adhered to, all the rights, both spiritual and temporal, of her Majesty’s subjects would be endangered. “ As the subject-matter is doctrine, and its application to a particular question, it is material to observe that there were different doctrines or opinions prevailing or under discussion at the times when the Articles and Liturgy were framed, and ultimately made part of the law: but we are not to be in any way influenced by the particular opinions of the eminent men who propounded or discussed them; or by the authorities by which they may be supposed to have been influenced; or by any sup- posed tendency to give preponderance to Calvinistic or Arminian doc- trines. The Articles and Liturgy as we now have them must be considered as the final result of the discussion which took place ;—not the repre- sentation of the opinions of any particular men, Calvinistic, Arminian, or any other; but the conclusion which we must presume to have been deduced from a due consideration of all the circumstances of the case, including both the sources from which the declared doctrine was derived, and the erroneous opinions which were to be corrected. “Tt appears from the resolutions and discussions of the Church itself, and from the history of the time, that from the first dawn of the Reforma- tion, until the final settlement of the Articles and Formularies, the Church was harassed by a great variety of opinions respecting baptism, and its efficacy, as well as upon other matters of doctrine. “The Church, having resolved to frame Articles of faith, as a means of avoiding diversities of opinion, and establishing consent touching true religion, must be presumed to have desired to accomplish that object as far as it could, and to have decided such of the questions then under dis- cussion as it was thought proper, prudent, and practicable to decide. But it could not have intended to attempt the determination of all the questions which had arisen or might arise, or to include in the Articles an authoritative statement of all Christian doctrine; and in making the necessary selection of those points which it was intended to decide, we APPENDIX. 237 may be allowed to presume that regard was had to the points deemed most important to be made known to, and to be accepted by, the members of the Church, and to those questions upon which the members of the Church could agree, and that other points and other questions were left for future decision by competent authority, and, in the mean time, to the private judgment of pious and conscientious persons. “Under such circumstances, it would perhaps have been impossible, even if it had been thought desirable, to employ language which did not admit of some latitude of interpretation. If the latitude were confined within such limits as might be allowed without danger to any doctrine necessary to salvation, the possible or probable difference of interpreta- tion may have been designedly intended, even by the framers of the Articles themselves; and in all cases in which the Articles considered as a test admit of different interpretations, it must be held that any sense of which the words fairly admit may be allowed, if that sense be not contra- dictory to something which the Church has elsewhere allowed or re- quired ; and in such a case, it seems perfectly right to conclude that those who imposed the test, command no more than the form of the words employed in their literal and grammatical sense conveys or implies; and that those who agree to them are entitled to such latitude or diversity of interpretation as the same form admits. “Tf it were supposed that all points of doctrine were decided by the Church of England, the law could not consider any point as left doubtful. The application of the law, or the doctrine of the Church of England, to any theological questions which arose, must be the subject of decision ; and the decision would be governed by the construction of the terms in which’the doctrine of the Church is expressed—viz., the construction which on the whole would seem most likely to be right. “ But if the case be, as undoubtedly it is, that in the Church of Eng- land many points of theological doctrine have not been decided, then the first and great question which arises in such cases as the present is, whether the disputed point is or was meant to be settled at all, or whether it is left open for each member of the Church to decide for himself according to his own conscientious opinion. If there be any doctrine on which the Articles are silent or ambiguously expressed, so as to be capable of two meanings, we must suppose that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formu- laries clearly and distinctly decide it. If they do, we must conclude that the doctrine so decided is the doctrine of the Church. But, on the other hand, if the expressions used in the Rubric and Formularies are am- biguous, it is not to be concluded that the Church meant to establish indirectly as a doctrine that which it did not establish directly as such by the Articles of faith—the code avowedly made for the avoiding of diversities of opinion, and for the establishing of consent touching true religion.” Again :— “This Court, constituted for the purpose of advising her Majesty in 238 THE ESTABLISHED CHURCH AND ITS CREED. matters which come within its competency, has no jurisdiction or autho- rity to settle matters of faith, or to determine what ought in any particular to be the doctrine of the Church of England. Its duty extends only to the consideration of that which is by law established to be the doctrine of the Church of England, upon the true and legal construction of her Articles and Formularies; and we consider that it is not the duty of any court to be minute and rigid in cases of this sort. We agree with Sir William Scott in the opinion which he expressed in Stone’s case, in the Consistory Court of London: ‘ That if any article is really a subject of dubious interpretation, it would be highly improper that this Court should fix on one meaning, and prosecute all those who hold a contrary opinion regarding its interpretation.’ ” II, MR HEATH’S CASE, The next important case was that of Heath v. Burder, 1860-62. Lord Cranworth, in commencing to deliver the judgment, said :— “Tt may be well to premise that the offence charged against Mr Heath, though of an ecclesiastical character, is one strictly defined by statute. He is accused of having, in violation of an Act of Parliament, propounded doctrine contrary to that laid down in certain of the Articles of Religion. In investigating the justice of such a charge, we are bound to look solely to the statute and the Articles. It would be a departure from our duty if we were to admit any discussion as to the conformity or nonconformity of the Articles of Religion, or any of them, with the Holy Scriptures. The statute forbids the promulgation of any doctrine contradicting the Articles. It leaves no discretion, All, therefore, which we have to do is, first, to ascertain, on the ordinary principles of construction, what is the true meaning of any of the Articles alleged to be infringed; next, what is the fair interpretation of the language used by Mr Heath; and then, finally, to decide whether, by his language so construed, he has or has not put forward doctrine which contradicts the Articles. “ These are the principles of decision which the Dean of the Arches laid down, and we think most correctly laid down, as those by which he ought to be governed, and they must also guide us.” , The points decided in this case are stated as follows :— “ As to the sufficiency of the accusation :— “Tn a proceeding under 13 Eliz., c. 12, being a penal statute, it is necessary that, besides the extracts from the writings of the accused person, the articles of charge should contain a statement of those portions of the Thirty-nine Articles of Religion which he is alleged to have con- travened, and a specification of the unsound doctrine which he is alleged to have maintained. “But if a single distinct passage complained of contains a plain mean- ing which can admit of no doubt, it may be sufficient to set it out, and state that it is directly contrary to such one or more of the Thirty-nine Articles as are conceived to be opposed to it. APPENDIX. 239 “The judgment upon the merits of the case decides the following points :— “1st, It is immaterial, in a general charge of publishing false doctrine in sermons, whether the sermons were actually preached or not. “9d, The word ‘advisedly,’ in 13 Eliz., c. 12, s. 2, means not ‘inten- tionally,’ or ‘avowedly,’ but ‘deliberately.’ “3d, It is the duty of the Court, in considering a charge of contraven- ing the Articles of Religion, to satisfy itself, (1) As to the meaning of the article alleged to be contravened, (2) As to the meaning fairly to be put on the language of the accused person. “Ath, It is not necessary, in order to bring a clergyman within the Statute 13 Eliz., c. 12, that the Court should distinctly comprehend the exact bearing of the whole of his opinions on the subject as to which false doctrine is imputed to him. It is sufficient that he should have propounded doctrine directly contrary to the doctrine laid down in the Articles. “5th, To obtain the benefit provided by the Statute 13 Eliz., ec, 12— viz., the benefit of retractation—the clergyman accused must hand in to the Court a formal revocation of those parts of his published writings which have been adjudged heretical.” III. THE ‘ESSAYS AND REVIEWS.’ The last great doctrinal case is that of the ‘Essays and Reviews ’— Williams v. the Bishop of Salisbury, and Wilson v. Fendall, 1864. The two archbishops dissented from those parts of the judgment pronounced by Lord Chancellor Westbury, which found that certain opinions as to the inspiration and authority of the Bible were not penal in a clergyman, But the whole members of the Court, lay and clerical, seem to have con- curred in the following rules as to its procedure, which we have therefore to add to those already expressed in the cases of Mr Gorham and Mr Heath :— “1, The Court does not pronounce upon the general tendency of writ- ings from which extracts are brought before it, but only upon the ex- tracts themselves. “2, Proceedings under the ecclesiastical law for the correction of clerks are of the nature of criminal proceedings, and it is necessary that there should be precision and distinctness in the accusation. “3. The accuser is, for the purposes of the charge, confined to the pas- sages which are included and set out in the articles as the matter of the accusation ; but it is competent to the accused party to explain from the rest of his work the sense or meaning of any passage or word that is chal- lenged by the accuser. “4, The Court cannot ascribe to the Church any rule or teaching which it does not find distinctly stated, or which is not plainly involved in, or to be collected from, that which is written. “5. The meaning to be ascribed to the passages extracted from the 240 THE ESTABLISHED CHURCH AND ITS CREED. writings of accused parties must be that which the words bear, according to the ordinary grammatical meaning of language; and the writer cannot be held responsible for more than is directly involved in his assertions. “6, The accuser having specified the portions of the Formularies which he thinks to have been contravened, the Court is confined to the consider- ation of these materials.” These cases have proceeded chiefly upon the Statute 13 Elizabeth, c. 12, passed in the year 1558, and to which we have referred in an earlier chapter as remarkably parallel to the early Scottish Act 1572, c. 46—each of them enforcing subscription to the Articles of Religion, and adherence to the doctrine therein contained, in nearly the same phraseology. We give the English Act below, and the reader can compare it with the Scottish statute already printed on page 49. The English Act is of course immensely more important than its nor- thern counterpart—if, indeed, the latter is not quite obsolete. The Act 13th of Elizabeth, along with the Act of Uniformity (13th Charles II.), are the only two statutes specially confirmed in the “Act for Securing the Church of England as by Law established,” which was introduced into the Treaty of Union to balance the Scottish Act of Security; and it may be held, therefore, to correspond to our Act 1690, in so far as it “ ratifies the Confession of Faith,” and to include the Act 1693 as to subscription; while the Act of Uniformity may have more analogy to the remainder of the former statute, “Settling Presbyterian Church Government.” This Act seems to be variously entitled,—“ To Reform Disorders touching the Min- isters of the Church,” and sometimes, as in the Union statute, * An Act for the Ministers of the Church to be of Sound Religion” (13 Eliz., c. 12). “Be it enacted, that every person under the degree of a bishop, which doth or shall pretend to be a priest or minister of God’s Holy Word and sacraments, by reason of any forme of institution, consecration, or or- dering, then the forme set forth by Parliament in the time of the late king of most worthie memorie, King Edward the Sixt, or now used in the raigne of our most gracious soveraigne lady, before the feast of the Na- tivitie of Christ next following, shall, in the presence of the bishoppe or gardian of the spiritualities, of some one dioces where he hath or shall have ecclesiasticall living, declare his assent, and subscribe to all the Articles of Religion which onely concerne the Confession of the true Chris- tian faith, and the doctrine of the sacraments, comprised in a booke im- printed, intituled ‘ Articles whereupon it was agreed by the archbishops and bishops of both provinces, and the whole clergie,in the convocation holden at London in the yeare of our Lord God a thousand five hundred sixtie and two, according to the computation of the Church of England, for the avoyding of diversities of opinions, and for the establishing of consent APPENDIX. 241 touching true religion, put forth by the queene’s authoritie :’ and shall bring from such bishop or gardian of spiritualities in writing under his seale authentike a testimoniall of such assent and subscription: and openly on some Sunday in the time of the publique service afore noone, in every church where, by reason of anie ecclesiasticall living, he ought to attend, read with the said testimoniall, and the saide Articles, upon paine that every such person which shall not before the said feast doe as is above appointed, shall be (¢pso facto) deprived, and all his ecclesiastical promotion shall be voide, as if he then were naturally dead. And that if any person ecclesiasticall, or which shall have ecclesiasticall living, shall advisedly maintaine or affirme any doctrine directly contrary or repug- nant to any of the said Articles, and being convented before the bishop of the diocesse, or the ordinarie, or before the queene’s highnesse Commis- sioners in Causes Ecclesiasticall, shall persist therein, or not revoke his errour, or after such revocation, eftsoones affirme such untrue doctrine ; such maintaining, or affirming and persisting, or such eftsoones affirming, that be just cause to deprive such person of his ecclesiasticall promotions, And it shall be lawfull to the bishoppe of the diocesse, or the ordinarie, or the said commissioners, to deprive such person so persisting, or lawfully convicted of such eftsoones affirming, and upon such sentence of depriva- tion pronounced he shall be indeede deprived. And that no person shall hereafter be admitted to anie benifice with cure except he then be of the age of three-and-twentie yeares at the least, and a deacon, and shall first have subscribed the saide Articles in presence of the ordinarie, and pub- liquely reade the same in the parish church of that benefice, with declara- tion of unfeined assent to the same. And that every person after the end of this session of Parliament, to be admitted to a benifice with cure, except that within two months after his induction he doe publiquely reade the said Articles in the same church whereof he shall have cure, in the time of common prayer there, with declaration of his unfeined assent thereto, and be admitted to minister the sacraments within one yeare after his in- duction, if he be not so admitted before, shall be upon every such default, ipso facto, immediately deprived. And that no person now permitted by anie dispensation, or otherwise, shall retain anie benifice with cure, being under the age of one-and-twentie yeares, or not being deacon at the least, or which shall not be admitted as is aforesaid, within one yeare next of the making of this Act, or within sixe months after hee shall accomplish the age of twentie-four yeares, on paine that such his dispensation shall be meerely void. And that none shall be made minister, or admitted to preach, or minister the sacraments, being under the age of foure-and-twen- tie yeares, nor unless hee first bring to the bishoppe of that diocesse, from men knowne to the bishoppe to be of sound religion, a testimoniall both of his honest life and of his possessing the doctrine expressed in the said Articles ; nor unless he be able to answer and render to the ordinary an account of his faith in Latine, according to the said Articles, or have speciall gift and abilitie to be a preacher ; nor shall be admitted to the order of deacon or ministerie, unlesse he shall first subscribe to the said Q 242 THE ESTABLISHED CHURCH AND ITS CREED. Articles. And that none hereafter shall be admitted to anie benifice with cure of or about the value of £30 yarely in the queene’s bookes, un- lesse he shall then be a Batchelor of Divinitie, or a preacher lawfully allowed by some bishoppe within this realme, or by one of the universi- ties of Cambridge or Oxenford; and that all admissions to benefices, insti- tutions, and inductions to be made of any person contrarie to the forme or any provision of this Act, and al tolerations, dispensations, qualifica- tions, and licences whatsoever to be made to the contrarie hereof, shall be meerely void in law, as if that never were; provided alway, that no title to conferre or present by lapse shall accrue upon any deprivation, ipso Facto, but after six months, after notice of such deprivation given by the ordinarie to the patron.” GTA PTE RAY. THE LEGAL THEORY OF NON-ESTABLISHED CHURCHES. THAT law has to do with Established Churches, and may have to do with their creeds, is obvious and intelligible. But it does not at first sight appear that law has anything to do with Churches which are not established; and lawyers on the one hand, and churchmen on the other, would be well pleased if the separation between the two could be made permanent and complete. Such a separation is impossible, under any conceivable jurisprudence ; and it will be our duty, in the remainder of this volume, to bring out how, in the juris- prudence of Scotland, the legal relation of such Churches to their creeds already forms a chapter of much importance and of great difficulty. Toleration was long unknown in the law, as in the history, of Scotland. The intense sentiment of national unity was strongly against it. The nation was one, and the Church became one. The Church claimed to be the Church of Christ in the realm, exclusively and of divine right. The State so far acknowledged it as even to declare statutorily that those who did not believe its doctrine and communicate in its ordinances were “no members of the Kirk of Christ so long as they keep themselves so divided from the society of Christ's body;” and the sentence of excommunication, pro- nounced by the Church on heresy in the exercise of its own jurisdiction, was followed by civil pains and penalties. The 244 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. Church brooked no rivals, and tolerated no individual and far less any collective dissent. Claiming independence of the State, it at the same time demanded full and exclusive recog- nition from it; and it used against all dissent both its proper and its borrowed power. The war between Presbytery and Episcopacy was so bitter, very much because neither party contemplated the possibility of their coexisting side by side. The obligations of the National Covenant of course greatly strengthened the feeling of religious unity; and the Solemn League and Covenant came into existence just at the time when the first symptoms of modern disintegration began to be felt in England. The Scottish Commissioners went to the West- minster Assembly to work out the “covenanted uniformity in ’ and the new doctrine of the “toleration of sects” which met them there they most earnestly resisted.1 The restoration of Charles II. brought back Episcopacy to both England and Scotland; but what was soon acquiesced in by the former kingdom was felt as a foreign yoke in the latter, and in 1688 the royal institute was overthrown in a day. Presbytery was by statute declared to be the only government of Christ’s Church within the kingdom; and the dissenting, or nonconformist, or seceding Churches which now exist, commenced their course without any reason or theory being struck out upon which the law could recognise their existence. THE EPISCOPAL CHURCH IN SCOTLAND claims precedence as the most ancient of these bodies, as having been once establish- ed, and as still standing over against all the others in the pos- session of a polity held essential by so much of Christendom, and held dear by so much more. Identical before the Revolu- tion with the Presbyterians in ritual and creed, and seemingly willing at that crisis to have surrendered whatever elements of individuality it did possess, it was driven into independence against its will; and, in spite of the curious infelicity with cA al oes religion ; 1 See Baillie’s Letters, passim. EPISCOPALIAN DISSENT. 245 which it has attached itself to every failing cause and every unpopular name in the history of Scotland, it has survived to represent a great ecclesiastical principle, and possibly to enact a more important part in the future. Coeval with it, or at least like it dating a separate existence from the Revolution, we may note the REFORMED PRESBYTERIAN CHURCH, or Cam- eronians, who would not enter the Established Church on account of the alleged defects in its reconstitution, and whose Jong contest with the party which most resembled them in the Establishment as to the legal import of the Revolution Settlement has now, after one hundred and fifty years, been decided in favour of the malcontents by the courts of law themselves. Neither of these two eldest Churches was in a position to familiarise the law with the doctrine of toleration. The Cameronians objected to the doctrine altogether, and the Episcopalians had the suspicion of disloyalty added to the fact of their dissent. All the more important was the Act 10th of Queen Anne, cap. 7, which we have already had occasion to notice, and which for the first time, and in the interest of the Scottish Episcopalians alone, forced upon our courts the recognition of a Church other than the Church which the law established, and extended to this Church in its worship and other functions a certain measure of positive protection. This, the only Scottish Toleration Act, we give in full in the appendix.? But these Churches of the Revolution were not the most important of the nonconformist bodies of Scotland. For the last century the SECESSION CHURCH and the RELIEF CHURCH, with their various subdivisions,” now generally merged into the one “United Presbyterian Church of Scotland,” were the 1 See Note C. sions of Scotch dissent are so numer- 2 Scotland has never been able to ous as to make a map absolutely neces- plead (in the words of the Compte de sary. Accordingly we give one on a Narbonne to Napoleon I.), ‘‘Sire, il subsequent page, reference to which n’y a pas assez de réligion en France at different points may be found of pour en faire deux ;” and the divi- use. 246 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. most important body of Scottish dissenters —if indeed we may apply to them such a name. For the great peculiarity of Scottish dissent has been, that it was not properly dissent at all, and earnestly repudiated the name. Not merely was it the same in doctrine, discipline, and worship, with the Church of Scotland, but the desire to maintain that doctrine, disci- pline, and worship unimpaired was the cause (at least in the case of the earlier or Secession Church of 1733) of its very existence. It separated—or, in its own phrase, seceded—from the majorities of the Church, from a regard to that Church’s honour and faithfulness ; and its bitterness was the perverted The word they chose was one which should express not dissent from true doctrines, but separation from flow of love. unfaithful men; not an abnegation of their old tenets, but merely a change from their former surroundings. The Scottish secessions were eminently conservative—looking back to a golden age of Church purity and independence; and the greatest of all, that of 1733, was eminently so. We must refer to histories of the time for the narrative how patronage and other grievances gave occasion to the movement; but sufficient evidence will be found in their subjoined manifesto,! 1 «We hereby adhere to the pro- testation formerly entered before this Court, both at their last meeting in August, and when we appeared first before this meeting ; and further, we do protest in our own name, and in the name of all and every one in our respective -congregations adhering to us, that, notwithstanding of this sen- tence passed against us, our pastoral relation shall be held and reputed firm and valid ; and likewise we pro- test that, notwithstanding our being cast out from ministerial communion with the Established Church of Scot- land, we still hold communion with all and every one who desire with us to adhere to the principles of the true Presbyterian Covenanted Church of Scotland, in her doctrine, worship, government, and discipline ; and par- ticularly with every one who are groaning under the evils, and who are affected with the grievances we have been complaining of, who are in their several spheres wrestling with the same. But in regard the prevailing party in this Established Church, who have now cast us out from ministerial com- munion with them, are carrying on a course of defection from our reformed and covenanted principles, and par- ticularly are suppressing ministerial freedom and faithfulness in testifying against the present backslidings of the Church, and inflicting censures on ministers for witnessing, by protesta- tion or otherwise, against the same : PRESBYTERIAN DISSENT. 247 that they carried the old passion for Scottish Church purity along with that (equally characteristic of their party) for Church independence. But as years passed away, the latter principle gradually became stronger; and in the second Seces- sion, when Mr Gillespie in 1752 originated the Relief Church, the doctrine of the spirituality of the Church, and its freedom from State control, had acquired preponderance. Gillespie himself had originally signed the chapter of the Confession of Faith as to the power of the civil magistrate in matters of religion with an explanation or modification. He was deposed by the Assembly in Dr Robertson’s time, because he refused to take a personal part in ordaining a presentee over a re- claiming congregation, and the majority of the Church had determined to exact on this point not merely passive, but active and individual obedience. The Churches founded by himself and his friends, being consequently very much Churches of relief from the supposed despotism of an Estab- lished Church, laid more stress on freedom of conscience, and less on the old Scottish uniformity, than had hitherto been done. And as years passed on, the contest of those in both communions who had left the Church naturally came to be not with the Moderate party, but with those who, holding the same principles within the Church with themselves, had yet not seceded. Men who held spiritual independence, whether within or without the Established Church, agreed in condemn- ing the practical administration of the matters of that Church by the dominant party, as being a denial of that principle. But Therefore we do, for these and many other weighty reasons to be laid open in due time, protest that we are ob- liged to make a secession from them, and that we can have no ministerial communion with them till they see their sins and mistakes, and amend them. And in like manner we protest that it shall be lawful and warrantable for us to exercise the keys of doctrine, discipline, and government, according to the Word of God, and Confession of Faith, and the principles and consti- tution of the Covenanted Church of Scotland, as if no such censure had been passed upon us. Upon all which we take instruments ; and we hereby appeal to the first free, faith- ful, and reforming General Assembly of the Church of Scotland.” See ‘His- tory of the Secession Church,’ by the Rey. John M‘Kerrow, D.D. 248 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. while those who remained in held this to be merely an abuse, those who had left soon came to argue that it was more or less essential to the very existence of an Establishment. A great revolution of opinion on this point passed over the minds of the large bodies of Seceders—a crisis which, as we shall see in the next chapter, has left considerable traces in the precedents of our law. The larger masses of these Churches became Voluntary, though minorities objected to the change, and split off to emphasise their adherence to the old doctrine. But the majorities received what was called the “New Light” hospitably, and a great controversy arose on the principle of Establishments, which in this century swelled into a storm. It was at last about to spend itself, when a strange climax occurred to the whole history. The spiritual independence party within the Established Church obtained the majority, and immediately, as we have seen, used their power to carry out their ancient principles. The result was that, being met and challenged by the law, they preserved indeed their own consistency at the expense of extreme sacrifice, but one great point of the argument in the question with the Voluntaries was finally decided against them. We observed above that the conditions of the Revolution Settlement have now been decided by law to be what the Cameronians had ever since 1688 held them. We must add that the whole conditions of Establishment have also been decided by law to be what the later Seceders, as distinguished from the elder, accused them of being. The principle of these decisions, as expressed in repeated: powerful opinions of the majority of the Court, is, that not merely the Revolution Settlement, but the whole establishment of the Church of Scotland, ab initio, was upon grounds irreconcilable with the claims of the Church party, as these were put forward by Andrew Melville in the Book of Discipline, and have been held since by all the sections above enumerated. The Free Church no doubt left upon the table of the Court and the Legislature its “Protest” that this THE VOLUNTARY CONTROVERSY. 249 was a misreading of the legislation of Scotland. But even the Free Church does not venture to deny that this reading has now been given, and that it has been given authorita- tively by the functionaries who are entitled to declare what the meaning and intention of the law has been throughout all those ages. The protest of the Free Church is, that the condi- tions of establishment have been changed. But the doctrine of law is, that the conditions of establishment have really been ever since 1560 what they are now defined to be, and that the connection of the Church of Scotland upon these conditions with the State is indissoluble. One step more. No one can carefully study the judgments following the Auchterarder case without seeing that their principle is not only that there has been, but that there can be, no establishment of a church by the State except on the principles of subordination there laid down. It is clearly put in many of these, and it is implied in all of them, that the old claim of Church independence and co-ordinate jurisdiction is absolutely unrealisable except on the condition of Voluntaryism—lIf the defeat of 1843 has been claimed by the Free Church as a moral triumph, it may certainly be claimed as a legal triumph by its old adversaries the Voluntaries. Reverting, however, to the earlier days of these dissenting Presbyterians, it is obvious that, so long as they retained a passionate attachment to the old Church of Scotland, and merely resented its want of that purity and independence which in an unwilling separation they exhibited themselves, the Courts had rather a difficult task to perform in dealing with them. Accordingly the manner in which the law of Scot- land dealt at first with such bodies was peculiar. It vacillated between the attempt to ignore them altogether, and (when this was impossible) the abandonment to them of everything they _ claimed. The Courts had of course in their statutory confes- sions the definition of a Church; and they knew generally that, high as the rights of this spiritual body were construed 250 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. to be by the Established Church, the view taken of these by non-established (Presbyterian) bodies was higher still. Con- sequently, when in some of the cases they were forced to acknowledge the existence of these communities, they treated their jurisdiction in their own matters ecclesiastical as un- doubted and axiomatic—a public fact, not admitting denial, and not needing proof. But in the earlier cases a different feeling—the idea that law was bound wholly to ignore them— finds a place. 1 This seems to have been the case in Auchincloss v. Black, March 7, 1791, reported by Baron Hume (Dice. 595), and mentioned in the report of the case of Dunn v. Brunton (F. C. No. 14, p. 29; and Morrison, voce Society, App. part 1, p. 16). Here “* Lord Justice-Clerk Macqueen refused to review the proceedings of the Asso- ciate Synod, so far as they regarded an ecclesiastical offence ”—a decision the weight of which is very greatly enhanced by the converse proceeding ‘‘in an adyocation from the sheriff between the same parties,” in which the same judge ‘‘ sustained the com- petency of certain proceedings respect- ing the possession of the meeting- house glebe and manse, and admitted the relevancy of an investigation as to which of the parties was supported by a majority of the congregation.” In the former or ecclesiastieal offence case, a deposed Associate Burgher minister “argued the point of juris- diction,” but the judges threw out the case as incompetent unless he proved malice. There is a similar case, also re- ported by Baron Hume (p. 637), viz., Grieve v. Smith, where the Lords thought “everything must be laid aside which had passed, judicially in some measure, at the meetings of the congregation, and according to the rules and usages” of a Church of Dissenters, who either called them- Thus, in a very early case,? in 1752, it was selves, or were called, by the eccentric but honourable name of Bereans. Of these modern Bereans, the reporter says (seemingly without any idea that the same might have been the case with their Macedonian prototyes), ‘*It is a fundamental rule of their policy and discipline that every mem- ber shall watch over the moral and religious deportment of his breth- ren, and submit the matter, if he find anything amiss, to the cognisance of the congregation, whose decision shall be final.” 2 Gib’s case — reported by Lord Elchies under the name of Bryson and others v. Wilson and others—of date June 80, 1752. Here the congrega- tion of the ‘‘Seceding Meeting-House at Bristo,” Edinburgh, called upon the trustees in whom the building was vested to denude in favour of new trustees named by them, in terms of powers to that effect in the title. They refused. The new trustees sued. The old objected ‘‘that the congregation was not nomen juris, and they were not a body corporate, neither was this seceding session, and there- fore could neither sue nor be sued;” and ‘‘the Lords found that the pur- suers had no legal title to pursue, their constituents being no legal con- gregation.” On the 8th of July of the same year ‘‘ the like was found” in the case of Pollock v, Maxwell (Eagles- ham congregation), also reported in EARLY LEGAL CASES. 201 found that a dissenting Church “ was no legal congregation,” and therefore that its trustees had no title to sue; while in another important one to be noticed in next chapter, the ignoring not now of the congregation, but of the whole body of the sect, was ably urged and as ably opposed by some of the greatest names that have ever adorned our Bar! And even when the judges did come to recognise the tolerated bodies as existing, their refusal to intermeddle with Church matters by no means took the form of respect for the privi- leges of such sects. On the contrary, their utterances often remind us of that most characteristically Roman speech of the Proconsul of Achaia, “If it were a matter of wrong or wicked lewdness, O ye Jews! reason would that I should bear with you; but if it be a question of words and names and of your law, look ye to it—I will be no judge of such matters.” Yet all these various causes combined to bring about the same result—that in the earlier cases of the Scottish Court’s deal- ing with non-established and tolerated Churches, they avoided interfering with the ecclesiastical acts and jurisdiction. But they did so without much inquiry as to what the ground of that jurisdiction was, or upon what legal theory it could be supposed to exist. And even when the Courts began to deal with the interests of such religious bodies, it was only gradually that the principles now recognised in our law with regard to them were settled. The Elchies’s Decisions. The principle of these cases was reversed in Wilson v. Jobson, 1771 (Morrison, 14555); and Allan v. Macrae, 1791 (Morrison, 14583). 1 Davidson v, Aikman (Craigdallie or Perth case). We shall have ozca- sion very carefully to review in the next chapter the decision arrived at in this case in the House of Lords, which did not at all turn on the toleration or recognition of dissenting Churches. But in the Faculty Collection for the year 1805 (No. 216, p. 481), and in Morrison’s Decisions, 14584, a most interesting discussion in the Court of Session is reported, in which the re- cognition of these sects, as continuous if not corporate bodies, was vigorously debated. Most of these cases are to be found under the word “ Society ” in Morrison; and in the Appendix to that title (p. 10), another equally inte- resting discussion is reported in the case of Dunn v. Brunton—a case about the year 1794—F. C. No. 14, p. 29. 252 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. question, in particular, whether dissenting Churches are held in law to be mere voluntary associations founded on contract, or to be communities which at common law have a peculiar and public privilege of jurisdiction, has only recently been finally discussed and determined in Scotland, though in Eng- land it seems to have been long held as settled. And the farther questions, by what means such a contract may be proved, and how far it may when proved give a voluntary jurisdiction to bodies which without it have no authority, cannot be said to be yet settled in our law. And it will be found that these questions have a bearing on our subject. It has, no doubt, been in questions as to the destination of pro- perty, as we shall find afterwards, that the law as to the creed and principles of dissenting Churches has been chiefly elabo- rated; but the root and principle of that law—viz., the legal theory of what a Church, not established, is—has come out more in cases of jurisdiction; and we shall find it of advan- tage to review these in the first place. The first case in which the grownd of Church authority came to be discussed was that of a sentence by a bishop of the Scot- tish Episcopal Church, pronounced in very special circum- stances.t. An Episcopal congregation in Aberdeen, which for a century from 1722 had existed independently of any con- nection with the Scottish Episcopal Church (and which was described in its title-deeds as “a voluntary society, united under the sanction of the Act of Toleration ”), at last, in 1841, entered into a deed of “voluntary union,” by which, under certain conditions and safeguards for retaining their former modifications of doctrine and worship, and declaring that any violation of these conditions should put an end to the union, they agreed to join the Scottish Episcopal Church. Their clergyman also at the same time was admitted by the Bishop of Aberdeen, and came under a solemn obligation to acquiesce in 1 Rev. Sir W. Dunbar v. Bishop Skinner, 8d March 1849, 11 D. 945. DUNBAR VU. SKINNER. 253 the decisions of the Episcopal authorities in all questions fall- ing under their spiritual jurisdiction, and not to appeal from their sentence to the civil court. Quarrels soon arose as to doctrine and practice, acts of the bishop were declared by the clergyman (Sir William Dunbar) to amount to violation of the deed of union, and he withdrew from the authority to which he had submitted; a step which was immediately followed by a sentence of deposition and almost excommunication on the part of Bishop Skinner, to which the widest publicity was given. An action of damages for defamation was raised by the clergy- man, the first defence stated to which was the exclusive spiri- tual jurisdiction of the bishop. All the judges remarked on the peculiarity of the circumstances, as not raising the ordi- nary case of an ecclesiastical superior and inferior; but they at the same time took occasion, for the first time in Scotland,! to indicate what the principle of law should be not only in exceptional but in all other cases. “There exists in Scotland no Episcopal Church whatever,” said Lord President Boyle, “except as a distinct sect, fully recognised and protected under the Toleration Act.” And such a body, being consti- tuted by agreement or contract, has, properly speaking, no jurisdiction—none at least that can be recognised by a court of law. “Jurisdiction,” said Lord Fullerton, “necessarily implies the existence of a power conferred by the State, and vested in functionaries sanctioned for that purpose by the State. . . . In regard to the Protestant Episcopal Church of Scotland, it appears to me that this Court, administering the laws of the realm, can recognise no jurisdiction whatever as existing in any official of that communion. They enjoy, it is true, toleration, but merely as a body of private individuals united by particular religious views, and associated for the laudable purpose of promoting those views.” On the question how far the contract may simulate jurisdiction, or may confer 1 Lord Moncreiff had done this already, but only as Ordinary, in the case of Osborne afterwards referred to. 254 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. a factitious and voluntary power equivalent to jurisdiction, his lordship’s views are guarded: “There is no doubt that all parties entering into an association for purposes not pro- hibited by law, may effectually bind themselves to submit without appeal to the determination of certain matters, and even to the infliction of certain censures, by the official autho- rities to whom such power is committed by the terms of the association ; and if it could be instantly shown that, by the admitted or proved circumstances of this case, the defender had absolutely bound himself to submit to such a sentence as that for which he now seeks redress, the defence in the second plea in law might have been sustained, and the case sent out of Court.” } These views were destined to receive more careful consider- ation and more deliberate utterance in a case directed against the body whose very existence rested upon its claim to eccle- siastical jurisdiction and independence. Seventeen years after the High party in the Establishment finally left it, protesting that they were the true representatives of the /’ree Church of Scotland, one of their ministers was accused of misconduct in his presbytery, and the libel, partly sustained by the presby- tery, but wholly refused by the synod, came by appeal to the Assembly. The Assembly, having all the evidence in the case in their hands in print, insisted on taking up the whole matter as it had originally come before the presbytery, and found the accused guilty to a considerably larger extent than the pres- bytery originally had done. This course was taken only after long reasoning on Church law and the nobdile officium of the Assembly, the constitutional objections to it being strongly urged by Mr Macmillan, before the sentence, which was resolved upon by a majority, was pronounced.” He at once appealed to the civil court against a judgment which unquestionably drew. 111 D. 962. See opinions in this the Assembly was thus judging of case in the Appendix, Note D. what had never been appealed, and 2 His objection was, of course, that what was not competently before it. ‘THE CARDROSS CASE. 255 after it results affecting his civil interests and emoluments, by presenting a Note of Suspension and Interdict. A copy of the Note of Suspension having been served upon the Assembly in ordinary form while it was still sitting, they instantly resolved “to cite Mr Macmillan to appear at their bar on Tuesday, the first day of June next, at twelve o’clock noon, He appeared accord- ingly (preceded by a messenger-at-arms, who served upon the moderator a Summons of Reduction of the previous sentence, to answer for his conduct thereanent.” the interdict against its execution having been refused in the Bill Chamber), and being ordered by the Assembly to say (Yea or Nay, without explanation or defence) whether or not he had authorised the application to the civil court, he answered Yes; upon which, by the immediate and unanimous resolution of the Assembly, and “in respect of the reply so given,” he was deposed on the spot from the office of the holy ministry. This exceedingly characteristic proceeding? resulted in two actions of reduction and damages—reduction of the two sen- tences by the Assembly, and damages against it in respect of 1 In the Assembly of 1581, the case by his submission, but on his relapse of Robert Montgomery, minister of Stirling, accused of having accepted a bishopric from the Court against the Book of Discipline, was called, when a Messenger appeared, and handed to the moderator the king’s letters from the Lords of Secret Council, forbid- ding the Assembly to take up the case on this ground. The Assembly ap- pointed Montgomery to appear at ten o’clock next day, when he was accused, inter alia, of ‘‘raising and executing letters, procuring the letters by sinis- trous information, for overthrowing the discipline of the Kirk,” and ‘‘ pro- curing a charge discharging the As- sembly, under paine of horning, to proceed against him,” found guilty, suspended, and appointed to be excom- municated. The sentence of excom- munication was prevented at the time was executed. The case is more than a parallel. Nothing can show more the extraordinary tenacity with which the Church party in Scotland holds to its history, than the fact that the Act of Assembly 1582, passed after Mont- gomery’s affair, was quoted and founded upon by the Free Church in the Cardross case as of present autho- rity. It enacts that no minister ‘‘make any appellation from the Gen- eral Assembly to stop the discipline and order of ecclesiastical policy and jurisdiction granted by God’s Word to the office-bearers within the Kirk, under. the pain of excommunication summarily and without any process or admonition.” See Calderwood’s History (Wodrow edition), iii. 599; and Acts of Assembly. 256 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. each of them—and the two actions were subsequently conjoined. Partly from the strong feeling excited in Scotland by the Car- dross case while it lasted, and partly from the confusion and failure into which the action as laid ultimately fell, the precise amount of gain from it to our law has not been accurately estimated. More has sometimes been found in it than was actually decided; while, on the other hand, it has been con- tended that nothing, or at least nothing of more than technical importance, was there laid down against the claims of Scotch dissenting Churches in general, and the Free Church in parti- cular. This seems a mistake. It was, in the first place, decided again, in the clearest way, that every Church in Scotland but the Established Church is to be regarded as a mere voluntary association for religious purposes, founded upon contract between the members, and that it therefore has, and can have, no proper jurisdiction. This point had not properly or purely arisen in the case of Skinner v. Dunbar; but it was now solemnly decided, in the face of the most strenuous opposition, raised not by an Episco- palian, but by a Presbyterian Church, appealing to the ancient conception of a church as imbedded in Scottish legislation ; and this doctrine, together with the most wholesome rule that the Court will always insist on examining every ecclesiastical sentence complained of (whether they will thereafter judge of it or not),! was nearly all that was decided at the first hearing of the cause. On this occasion? the Church was ordered to produce the sentences complained of, reserving all its pleas against the right of the Court to judge of them when pro- duced. The second step in the case was more important, but it was a logical consequence of the principle already laid down. The 1 The Toleration Act provides that ? Macmillan v. the General Assem- the doors of the churches tolerated bly of the Free Church, 22 D. 290, shall be not locked, barred, or bolted 23d Dec. 1859. See Appendix, Note while the worship permitted is going E, for some of the more important on. An instructive analogy. principles laid down on this occasion. CARDROSS CASE AND DOCTRINE OF CONTRACT. 257 pleas of the Free Church in this case were of two kinds—some which were stated as common to it with all Christian Churches, and others which were founded on its own individual consti- tution. It pleaded, first, that, simply on the ground of its being a church, its church sentences could not be reviewed ; and only thereafter went on to plead the special ground of its being the Free Church, with such and such a constitution. And the Court by their finding gave the greatest prominence to this distinction. The two general pleas of the defenders were as follows :— “1. The sentences complained of being spiritual acts, done in the ordinary course of discipline by a Christian Church, tolerated and protected by law, it is not competent for the civil court to reduce them, and the action should therefore be dismissed. “3. As the actions, in so far as they conclude for reduction of the sentences complained of, do not relate to any question of civil right, the actions cannot be main- tained.” These two pleas were repelled. Besides these general pleas, the defenders presented the following :— “2. The pursuer, by becoming and continuing a minister of the Free Church, and by having voluntarily acknowledged and submitted himself to its authority in spiritual matters as final, cannot maintain the present actions, which should therefore be dismissed. “5. As the sentences complained of were pronounced in the exercise of the authority belonging to the courts of the Free Church, as acknowledged by its members, and to which au- thority the pursuer had subjected himself, no decree for damages can be pronounced.” These pleas were reserved. And they were reserved expressly on the ground “that the parties are not agreed as to the terms of the constitution of R 258 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. the Free Church of Scotland.”! That is, the pleas founded on public privileges of Churches were rejected, while those found- ing on private contract were retained. The pleas common to all Churches were disregarded, but those proper to the indi- vidual Church in question were reserved. This result was exactly what the legal principle already laid down demanded ; and it was that also which might have been safely inferred from the current of decision before the disruption of the Church in 1843. The Court then steadily refused to listen to theories, whether drawn from Scripture or the Confession of Faith, as to what “a church” was, and demanded proof from statute or otherwise of what powers had been expressly given by the State to this particular institute. And in spite of chance hints thrown out to the contrary,” it was plain that a similar principle would guide its dealing with dissenting bodies. But it was fit that that Church which in the Estab- lishment had maintained its supposed native and original rights with unparalleled boldness and power, should maintain the same position and suffer the same defeat as the self- constituted representative—not now of the Church of Christ established in Scotland, but of the Church of Christ pure and simple. It is much to be regretted that the Cardross case did not go on farther,? so as to deal with the question how far the con- 1 See Lord Jerviswoode’s interlocu- case, Kinnoull v. Ferguson, March 5, tor, adhered to by the First Division, 19 July 1861, 23 D. 1314. Appendix, Note F. - 2 «Tf these gentlemen wish to maintain the situation of what they call a Christian Church, they would be no better off than the Catholic Church, or the Episcopal Church, or the Burghers or Antiburghers; but when they come to call themselves the Established Church, the Church of Scotland—what makes the Church of Scotland but the law ?”—The Lord President in the second Auchterarder 1841, 3 Dunlop, 778. 3 The fate of the Cardross case was curious. Being directed against the General Assembly of the Free Church as a body, and concluding for a formal reduction of their sentence, as well as damages, it excited the greatest oppo- sition ; and it was with difficulty that the Church defending agreed, even upon a reservation of all its pleas, to ‘‘satisfy production’ —7.e., formally to produce their sentence for the review of the Court—and it did so only after the statement from the Bench that END OF THE CARDROSS CASE. 259 tract or constitution of the Free Church individually, as ac- ceded to by her recalcitrant office-bearer, gave it authority— how far it was a “contract of jurisdiction.” There is no doubt whatever that it would have turned out to be, in the intention of the parties, and as a contract between them, a contract of jurisdiction—a yielding to jurisdiction in the strict sense of the word. the reduction was auxiliary to the civil claim for damages. At a later stage the Court, very much proprio motu, and before any inquiry as to what the constitution of the Free Church was had been gone into, pro- nounced that no action for damages could lie against an unincorporated body like the General Assembly, and that this part of the action must be dismissed ; and farther, that the ac- tion of reduction, being only auxiliary to the claim of damages, fell to be dismissed likewise. Not only the dis- missal, but the grounds of it, were to a certain extent satisfactory to the Church concerned, which has well earned a right to represent other Churches in questions of jurisdiction. An action of damages against indivi- dual office-bearers (provided malice be alleged, as was contemplated by Lord Colonsay when sitting as President in this case) seems always admissible, and affords no ground of umbrage to a Church. It was the action against the Assembly as such that exacerbated this contest, and the refusal to allow such an action, with the consequent rejection of the reduction, is gratifying to churchmen. But the comparison of the earlier and closing part of this protracted case yields no clear result for lawyers. 1 The only doubt that has arisen on this subject is from the occasional use of the word jurisdiction in the sense of what has been called coercive juris- diction—a right not only jus dicere, This might be proved without difficulty in the case but also to enforce the law declared. And it is argued this cannot even be pretended to by unestablished tri- bunals. Assuming, for the sake of argu- ment, that this is contained in the proper meaning of the word, there is no difficulty in seeing how the Apostle John, or Polycarp, could claim juris- diction within the Christian Church as truly as any of their successors re- cognised by Constantine. Theirjudg- ment, or that of the humblest Chris- tian Church, is not necessarily futile because it is not enforced by civil law. ‘* Whatsoever ye bind on earth shall be bound in heaven.” It is not necessary that the law should believe this; it is only necessary that the law should believe that the Church believes this. For this justifies the Church’s use of the word, and makes a coercive jurisdiction of the highest kind. But again, the sentence takes its proper earthly effect within the Church, upon the consciences both of the culprit and of others, and af- fects their whole relations ; and that without any appeal to civil law. In- deed, the results and consequences which civil law has to do with are always remote and secondary, and are not the proper and immediate objects of the sentence. Church jurisdiction is jurisdiction guoad spiritualia. For the temporal consequences, as_ the Church of Scotland always acknow- ledged, appeal may have to be made to the magistrate ; for these belong 260 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. of every Presbyterian Church in Scotland—certainly in the case of every Presbyterian disestablished Church ;1 and in the case of the Free Church, with its modern documents all refer- ring to claims lying in the full blaze of Scottish history for centuries back, it is probably more undoubted than in the case of any other Church in the world. But that certainly does not exhaust the matter. Assuming that this was the intention and contract of the parties, how far will the Court carry it into effect? There are some possible heights of authority— some conceivable incidents of jurisdiction—which it rather seems the Courts would not acknowledge, however clearly it be proved that they were submitted to; and, in particular, any attempt by way of private contract to shut out the Court from the fullest inquiry and znvestigation into all matters would not be tolerated. But, on the other hand, the principle that the Court has proper and primary jurisdiction, does not make it by any means impossible for it to recognise (always within limits) another secondary jurisdiction founded upon voluntary properly to the province of the ma- gistrate. The churchman is fwnctus before the civil judge is appealed to. The civil coercion belongs to the jurisdiction of the civil judge, who may be appealed to even on the ground of contract and fairness to add these consequences ; but whether he chooses to add his coercion or not does not affect the religious jurisdiction, which is already explete and finished. It always comes back to the same point. The courts cannot hold that the Christian Church has jurisdiction until it is established; but its own members do. And their use of the word is not inaccurate. All this is trite in Scotland, and may be found coming out in the Eng- lish courts, as in the recent judgment in the case Colenso v. Gladstone, by the Master of the Rolls, afterwards referred to. 1 The a fortiori nature of the claim of the Free Church and other non- established bodies in Scotland is very strongly alluded to by the Lord Jus- tice-Clerk Hope in Sturrock v. Greig, quoted from in a former chapter. While indicating in several parts of his judgment that he had no doubt dissenting judicatories could claim the same protection from actions of dam- ages which that judgment gives to the Established Church, even against allegations of malice, he adds, ‘‘ The view that may be taken of this matter by independent religious bodies, un- less their constitution is very express, may go much further ; and it may be that their Church courts may have, as against their own ministers, the sole right to decide what is competent matter for Church discipline and ecclesiastical government.” VOLUNTARY TRIBUNALS. 261 and private contract! This is not impossible; and if full effect is to be given to the principle of contract, it is necessary ; but it is always a question how far it is expedient. The most important deliverance upon this subject in the courts of the United Kingdom, is the principle of the Privy Council decision in the case of Long v. the Bishop of Capetown, which was stated as follows :— “The Church of England, in places where there is no Church established by law, is in the same situation with any other religious body—in no better, but in no worse position ; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body, which will be binding on those who expressly or by implication have assented to them. It may be further laid down that where any religious or other lawful association has not only agreed on the terms of its union, but has also consti- tuted a tribunal to determine whether the rules of the association have been violated by any of tts members or not, and what shall be the consequence of such violation, then the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and if not, has proceeded in a manner consonant with the principles of justice.” 1 The words of a famous judgment of Lord Stowell may be used to illus- trate this. Speaking of a question turning on a Scotch marriage, he says, the law of Scotland.” The puzzle in the Cardross case as to two possible jurisdictions is effectually unravelled here; but the real question is, whe- ‘‘The cause being entertained in an English court, must be adjudicated according to the principle of the Eng- lish law applicable to such a case: but the only principle applicable to such a case by the law of England is, that the status or condition of the claimant must be tried by reference to the law of the country where the status originated; and having furnish- ed this principle, the law of England withdraws altogether and leaves the question of status in the case put to ther civil law will allow to a Chris- tian Church, in the unestablished and merely tolerated form which it held for the first centuries of its existence, that jurisdiction which it is supposed to have then claimed, and which Scotch Churches at least have always claimed, expressly on the ground that the early Church did so. See in the Appendix some very interesting re- marks by M. Renan on the early Church and the Roman law, Note B. 262 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. It can scarcely be said that the courts of Scotland have gone so far as this in recognising voluntary tribunals.t Yet Churches in Scotland have from time immemorial gone much farther than this in constituting them; and if the Court is to ignore their voluntary jurisdiction, it must do so on some other ground than the doctrine of contract. And if the Court adheres to the doctrine of contract in the ecclesiastical It will not allow the name of jurisdiction,” but how far will it give the thing? region, how far will it adhere to it? The question still lies open for discussion in our law,’ and it 1 Except, perhaps, in the last judg- ment in the Cardross case, which see in the Appendix. 2 The English Court is clear on this in the above judgment. To the para- graph above quoted it is added: ‘* In such cases the tribunals so constituted are not in any sense courts; they derive no authority from the Crown, they have no power of their own to enforce their sentences — they must apply for that purpose to the courts established by Jaw, and such courts will give effect to their decision, as they give effect to the decisions of arbitra- tors, whose jurisdiction rests entirely upon the agreement of the parties. ‘‘These are the principles upon which the courts in this country have always acted in the disputes which have arisen between members of the same religious body not being mem- bers of the Church of England.”— Ecclesiastical Judgments of the Privy Council, 310. John Murray: London, 1865. 3 See indications of different lean- ings of opinion in the later stages of the Cardross case, some of the utter- ances in which are given in the Appen- dix. The same came out in a brisk exchange of sentiments in Lang v. the Presbytery of Irvine (vol ii. of New Series of Reports, p. 823, March 5, 1864), in the First Division, where Lord Deas says: “ The only other ob- servation I have to make is this, that as we are here dealing with the pro- cedure of a constituted court of the country, the principle is different from the principle applicable to a voluntary association — different as respects their right to regulate their own procedure and power of process, and as respects the principles of their constitution. In the case of a volun- tary association, the question resolves itself into a breach of a civil contract, and I know no law for holding that malice is necessary to render parties liable for a breach of a civil contract. That was the sort of question that oc- curred in the case of Macmillan against the Free Church.” Lord Ardmillan, in the close of his judgment, said : **In consequence of what has fallen from Lord Deas, I feel it to be my duty to state my deliberate opinion, that in this matter of privilege in judicial proceedings there is no differ- ence between the judgment in mat- ters spiritual of the Church courts of the Established Church, and the Church courts of nonconforming bodies, provided there is jurisdiction which by law or contract the parties are bound to recognise, and a judg- ment pronounced by judges whom by law or by contract the parties are bound to obey. In both cases I think A JURISDICTION FOUNDED ON CONTRACT. 263 may be assumed that the Courts will not rashly close it by extreme utterances. The general rule at least has been fully laid down—that Churches not established are founded on con- tract; that their authority is founded on contract; that the Court will not assume them to have authority till it is proved, and that when it is proved as will (generally) sustain it. that the judgment is privileged, and that malice must be alleged.” Lord Deas : ‘‘I must explain that I did not give any opinion as to what would be the law in the case of a civil contract with a voluntary association acting within the contract. The case to which I referred was one in which it was distinctly alleged, and offered to be proved, that the parties had acted not according to, but in violation of, the contract. It was of that case alone I spoke.” Lord Ardmillan, ‘‘1 referred to no particular case.” 1 An early anticipation of this doc- trine seems to be found in Lord Mon- creiff’s judgment on the unreported case of Osborne v. the Southern Re- formed Presbytery. His lordship’s judgment was as follows :— “* Edinburgh, July 5, 1831.—The Lord Ordinary having considered this bill, with the answers and produc- tions, and haying heard parties by their counsel,—In respect that the complainer admits that he was a mem- ber of the religious society referred to, that he received his ordination as a minister from this Reformed Presby- tery, and that he bound himself to submit to their jurisdiction as an ec- clesiastical body ; and in respect that it does not appear to the Lord Ordi- nary, according to the statement of the complainer himself, that he had been loosed or released from that con- nection and jurisdiction in regard to his ecclesiastical status, finds it in- competent for this Court to interfere to stop the proceedings of the respon- part of the contract the Court dents in the matters alleged, which are purely of an ecclesiastical nature : therefore refuses the bill as incompe- tent, finds expenses due, and remits the account, when lodged, to the au- ditor to be taxed. ‘* JAMES W. MONCREIFF.”’ This reads like a full acknowledg- mwment of ecclesiastical claims, but his lordship’s note places these distinctly on the ground of contract :— ‘* Note. —The complainer having voluntarily bound himself, as a mem- ber of this association of Christians, tolerated and protected by law, to submit to the discipline of the Pres- bytery, according to the ordinary principles of Presbyterian government, the law will recognise the obligations thereby come under as matter of con- tract. This gentleman admits that he was charged with certain matters of a proper ecclesiastical nature ; and while the Presbytery were in cwrsw of prosecuting the charges, he says that he intimated that he wished to re- nounce the connection, and cease to be a member of the society. But the Lord Ordinary apprehends that an ordained minister of any such sect or association cannot, merely by saying so, relieve himself from the jurisdic- tion, once solemnly contracted ; and that the legal effect of the contract is, that the Presbytery must have autho- rity to prosecute to an end the meas- ures of Church censure or discipline which they have begun, unless the party has been loosed from his con- nection with them by their own act.” 264. LEGAL THEORY OF NON-ESTABLISHED CHURCHES. But on the particular applications of it great doubt may rest. Thus in the Cardross case. If the Court had gone on, as it proposed, to inquire into the constitution of the Free Church and the contract of its members, it would have found that it was a contract to submit to jurisdiction, and that in the intention of the parties this was intended to exclude all civil redress for such mere irregularities in form of process or otherwise as the Court refused to review in the Estab- lished Church in the case of Lockhart v. Deer. But the alle- gations of Mr Macmillan in the Cardross case were a great deal more serious than those of Mr Lockhart in the other case, and might be argued to involve not forms of process merely, but questions of Church constitution. It may well be doubted, on the legal principles which we have endeavoured to reach in the last chapter, whether, if a case like his had been brought forward in the Established Church with its undoubted but limited legal jurisdiction, the Court would not have at once in- quired into the competency of the General Assembly, as merely one organ of the Church, to do such an act as Mr Macmillan complained of. No doubt the jurisdiction claimed by the Free Church is a fortiori of that claimed by the Established Church. No doubt it was expressly to conserve this larger jurisdiction that the Free Church was erected; and therefore it is more likely to be fundamental to it, and part of the original contract of its members. But this being granted, two questions remain. It does not, in the first place, appear whether the Free Church itself holds that its contract and jurisdiction are intended to exclude from the judgment quoad civilia of the civil court any properly constitutional questions. And, secondly, if it did, the Court would probably refuse to give effect to the contract to this extent ; leaving a voluntary jurisdiction acknowledged by civil law not much wider (if at all) than that which civil law has expressly given to the Established Church of the country. The only difference might come to be, that the extraordinary emphasis with which the contract of the Free Church guards CHURCH QUESTIONS FROM CAPE COLONY. 265 against its spiritual sentences being formally reviewed, might, as in the Cardross case, prevent its members from asking any interference with them quoad spiritualia, and prevent the Court from giving it. But it would not prevent the Court from giving damages against Church office-bearers for acts which in the sense of law were malicious and wrongful. It is difficult to believe that, even on the doctrine of contract, law will yield to a tolerated Church a much higher jurisdiction than it concedes to its own guarded and limited national institute. Instead of any farther immunities, bodies not established must probably content themselves with that position of free- dom to act according to the corporate conscience (with what- ever civil pains and inconveniences), the attaining of which was the ostensible reason—and, according to the documents of 1843, the only sufficient reason—for the schism of the Free Church. Scotland has long been the arena of questions of this kind. But recently the higher courts in England have been occu- pied with a number of cases of Church jurisdiction, all from the colony of the Cape of Good Hope, and the convergence of these with cases from Scotland may in future bring out some interesting legal points. In the recent equity case of the Bishop of Natal (Dr Colenso) v. Gladstone (Law Reports, Equity Cases, 11. 1), the Master of the Rolls, Lord Romilly, on 6th November 1866, pronounced a judgment finding Dr Colenso sufficiently a bishop to be entitled to his salary, not- withstanding that he had no territorial or coercive! jurisdic- tion, and had been deposed by his metropolitan (who, according to a previous judgment, had himself no jurisdiction to depose him) ; and the discussion brought out some interesting points, though nothing of great importance to our law. Another case from the same region, Murray v. Burgers, was a case before the Judicial Committee of the Privy Council from the Dutch Reformed Church of the Cape, and had a considerable analogy 1 See previous note as to coercive jurisdiction, p. 259. 266 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. to the Cardross case. In it the supreme court of their body had insisted on trying a minister for heresy without his ever having come before the presbytery or local court at all; and he raised an action of reduction of their sentence of suspension. But the peculiarity of this case is that this body, though, according to Lord Westbury, “a voluntary society, constituted and subsisting by voluntary agreement,” has been for a good many years under “an Ordinance or Statute enacted in 1843 by the Governor of the Cape of Good Hope, with the advice and consent of the Legislative Council thereof,” which this Church seems to have asked for or accepted as a constitution. And on a construction of this document, with certain alterations made upon it in 1847, the Privy Council found, as matter of fact, that “the object and intent of the Ordinance of 1847 was to strip the synod absolutely of all original jurisdiction in cases of charges against the doctrine or conduct of ministers, and to reduce it simply in such cases to a court of appeal.” ? The Dutch Reformed Church itself seems strongly to object to this rendering, on the ground of an exception in the Articles of 1847, which reserves “the right of the higher courts to take notice of cases, even without appeal, which concern the wel- fare of the Church in general, and come under its jurisdiction.” But the case of a Church under such statutory ordinances, and yet not established, is peculiar; and the chief interest attaching to it is in the difficulty as to the ecclesiastical position of the minister, who is at this moment regarded by the Church as suspended, while the civil court has set aside the suspension “as illegal and void.’ In this case, that simple reduction of a Church sentence seems to have been carried out from which, in the Cardross case, the Courts of Scotland shrunk. These precedents give a still greater interest to the last important Scotch case, Forbes v. Eden, 8th December 1865 (Third Series of Reports, vol. iv. p. 143)—one which has been recently decided—which has gone to the House of Lords upon 1 See Lord Westbury’s judgment, delivered on 6th February 1867. FORBES v. EDEN. 267 appeal 1—which, like that of the Bishop of Natal, concerns an Episcopal Church—and, like the Cardross case, is an action of reduction. Similar to some of the previous cases in these respects, this last has a more immediate bearing upon our subject; for it is an attempt on the part of a clergyman to get the Court to reduce not a particular act of discipline, but a code of canons, on the ground that the Church in question had no right to change its former regulations and give authority to these. This case of Mr Forbes against the Synod of the Episcopal Church in Scotland has therefore much resemblance to a pure question of change of creed, and it is remarkable also for the startling and suggestive difference of opinion that appeared upon the Bench in Scotland. Part of the difficulty in this, as well as in the Cardross case, seems to have been caused by the form of the action of reduc- tion—a mode of procedure, the usefulness of which in Church cases has by no means compensated for the intense irritation which it excites in every ecclesiastical body attacked by it. In this case the embarrassment was increased by the fact that patrimonial loss was hardly alleged to have been sustained by the pursuer,? and in trying to reduce the new regulations he was forced to take his stand on possible or future loss of his pastoral status in consequence of their enactment. This loss of status, however, the present Lord President of the Court argued very powerfully would be patrimonial or equivalent to patrimonial;* and the more important doubt remained, 1 See Appendix for the result. 2 In the Cardross case the Court took occasion to explain, in the most elaborate way, that they only allowed the action of reduction as auxiliary or ancillary to the demand for damages ; the pursuer, to meet this, formally stated that ‘‘the action contains no conclusion that the pursuer should be restored to his position as a minister of the Free Church;” and, lastly, the Court, acting on this principle (but Lord Deas dissenting), threw out the reduction as soon as they became of opinion that the claim for damages was not competently laid. See Ap- pendix, Notes F and G. 3 The course of the cases has been such as to bring out very clearly the futility of this circumstance of patri- monial right as a criterion. Lord Brougham’s principle in the Auchter- arder case, that Church courts ‘‘ are barred and shut out from any cogni- sance of civil patrimonial rights, and not only of civil patrimonial rights 268 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. whether such a real loss, if caused by the exercise of proper Church authority, could receive any remedy at the hand of the Court, or at least the remedy of reduction. There was nothing in the opinions given to indicate any resiling on the part of the Court from the principle laid down, that Churches are held at law to be founded on contract ; but there was much to show the extreme difficulty of applying the doctrine, and ascertaining the extent of ecclesiastical juris- diction which the contract provided. The present Lord Pre- sident of the Court, Lord Glencorse, laid down the general principle as follows: “If a society, whether for religious or secular purposes, is bound together by articles of constitution, and an attempt is made to alter any fundamental article of the constitution, the general rule of law undoubtedly is, that the majority may be restrained, on the application of the minority, from carrying the alteration into effect.” Not merely, his lordship argued, could the minority have redress for civil injury actually sustained thereby, but they would be entitled to anticipate the injury and prevent the alteration being car- ried into effect—a conclusion from which Lord Cowan, as well as Lord Barcaple, the Ordinary in the case, seemed distinctly to dissent. But the illustrations by the Lord Justice-Clerk, now Lord President, of what “fundamental articles” may be, are still more important. The creed of the Scottish Episcopal Church at present is the Thirty-Nine Articles. In last cen- tury, and until recently, it seems to have been the Confession of Knox.. Could they revert now from their present standard to their former? “The whole body would have power to make the change, if they were unanimous. But a majority, I apprehend, would have no power to do so against the wishes of a minority, however small.” Again, passing from doctrine to ritual, “‘ If the Synod, whose acts are here complained of, directly, but of those things which in- by any Church court, established or directly affect civil patrimonial rights,” dissenting. Every ecclesiastical act if taken literally, would render incom- has civil consequences. petent every judgment ever delivered THE LORD PRESIDENTS OPINION. 269 had passed an ordinance prohibiting the use of all set forms of prayer, the result would be the same; and any one having sufficient interest might complain of it as a breach of contract, because in this communion it seems to be a fundamental article of the constitution, since 1811 at least, that set forms of prayer shall be used in public worship.” These startling illustrations imply that, if not in the de- liberate and official judgment, at least in the opinion at the time of utterance, of the distinguished judge who spoke them, the Articles and set forms of prayer are fundamental in the Scottish Episcopal Church; and negatively, that there is in its constitution no fundamental power of abandoning them. Whether they also imply that that Church has no power of modifying them, might be more difficult to say; and it would be very rash to conclude that the illustrations are intended to apply to other Churches, or to the general case, so as to make the existing creed and ritual of every dissenting Church more fundamental than any right to change alleged to exist in its constitution. At the same time, the contrast between the general leaning of this speech on the one hand, and the note to the Lord Ordinary’s interlocutor, confirmed by the opinion of Lord Cowan, on the other, is striking.’ Lord Cowan says: “I cannot but regard it as an entire novelty to ask courts of law to determine whether the ruling judicatory of a voluntary Church acted within its powers in matters so purely and exclusively relating to the government ‘of the body as a Church, its doctrine and discipline.” And Lord Barcaple says: “It appears to the Lord Ordinary that the present action proceeds upon a fallacious view of principles, which have been recognised in these cases, and of dicta which had reference only to the questions then under consideration. When, in defence against an action on account of something done by an ecclesiastical body, it was pleaded that the matter, being ecclesiastical, 1 See Appendix, Note H. 270 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. was solely for the determination of that body itself, it was effectually replied that that was an assertion of exclusive power of jurisdiction, which could only rest upon contract, and that the contract was to be found, if anywhere, in the constitution and laws of the Church. In the discussion which thus arose, the constitution and laws of the Church came to be referred to as ‘the contract’ upon which the question turned, and most correctly ; for by reference to them the question of jurisdiction, or of the legality of the proceed- ing complained of, was to be determined. The fallacy of the present action appears to the Lord Ordinary to be, that the pursuer treats the canons of his Church as if they were pri- marily and by their main intention a contract between the members of the Church. Taking this view, he complains that the terms of his contract have been changed without his authority, and to his injury. Analogies are brought forward drawn from other associations, formed for entirely different purposes, and having nothing equivalent either to the author- ity which is vested in synods and other ecclesiastical bodies, or to the regulations for the doctrine and internal government of a Church. And the Court is asked to deal with the canons of a Church as they are from time to time enacted by the proper authority, as if they were nothing else than attempted modifications of the contract between the members of an association for ordinary civil purposes. This is, as the Lord Ordinary thinks, altogether a fallacious view, and quite un- warranted by the authorities referred to. The canons of a Church are not enacted for the purpose of constituting a con- tract, but to establish and regulate its doctrine and discipline. The contract, in the sense in which that expression is im- portant in these discussions, may or may not be embodied in the canons. They are only to be looked at as giving evidence, more or less complete, in regard to it.” And again: “Into matters of this kind courts of law have always refused to inquire, except for the purpose of vindicating a civil right LORD COWAN'S AND LORD BARCAPLE'S ‘OPINIONS. 271 or protecting against a civil wrong. Even in that case the courts have never given the remedy by altering or setting aside proceedings taken by the ecclesiastical authorities within their proper province, and least of all by making or unmaking regulations for the doctrine or discipline of the Church. The pursuer, indeed, does not ask the Court to pro- nounce as to the theological soundness of the doctrines in question, but only as to whether they are not now brought in as an Innovation. But civil courts do not undertake to pro- tect Churches, or individual members of Churches, from the influx of new doctrines. They only interfere to prevent the uses of property being perverted through its being retained by a majority who only keep the name, while they have aban- doned the principles, of the Church to which it was devoted. The proposal to give such a remedy as is here asked, against the canons regarding the powers of the bishops to establish missions, and the power of general synods to make and alter canons, may appear less startling, because they are not strictly matters of theological doctrine, though they are not less po- lemical for that reason. But the Court will as little interfere to impose upon a dissenting body immutability of Church government as immutability of doctrine; while in either case it will protect property from being diverted, or persons from being injured, by the consequences of changes on doctrine or constitution.” It does not appear that there is any absolute inconsistency between these opinions and that of the present Lord President, unless upon the one point of the Court’s interfering to prevent anticipated patrimonial loss—and perhaps on the definition of what patrimonial loss should be held to be. From the later paragraphs of the Lord President’s speech as given in the Appendix, it would seem that his general propositions above quoted are intended to be received with some qualification. And while the opinions of Lord Cowan and Lord Barcaple are directed against the “reducing” of a merely ecclesiastical 272 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. (certainly of a merely doctrinal) sentence, and indeed against interfering with it at all unless it has been followed with con- sequences of civil injury, neither of these judges objects to such civil injuries being taken cognisance of (perhaps by some other form than the action of reduction) when they have actually resulted. In such a case the unanimous view of the Bench is that the Court would sustain their own jurisdiction, and would proceed at least to inquire into the matter. And the inquiry would be, as we have already seen, What is the constitution of the body ? mental to it in whole or in part? to it that they cannot be altered ? Are these canons, this ritual, this creed, funda- Are they so fundamental Or is there a fundamental power of alteration in the constitution? and if so, how far does it extend ?1 But the most important body of authority on this matter belongs to another department of the law, which we must now take up. 1 Probably even the objection which some of the judges expressed to deal- ing directly with a code of canons may be reduced to the principle we venture here to extract from formier cases. The Court, they say, shrinks from doing such a thing. But why? Probably because it is assumed, and perhaps could be proved, that an appeal to the Court for this purpose is contrary to the constitution of this (or of every) Church, and contrary to the ‘‘ con- tract’’ of jurisdiction submitted to by its ministers. But the preliminary pleas of defence in this case were not discriminated in the instructive way we have noticed in the Cardross case—the defenders pre- ferring to join issue on the relevancy of the special averments on record, a course in which they were successful. This case has gone by appeal to the House of Lords upon a very full and able case for the appellant. But un- less the Court of Appeal should differ in opinion with al/ the inferior judges as to the fact of the case (the question whether the Scottish Episcopal Church has made such an alteration as is com- plained of), it is not likely to discuss the general question of law which would only then emerge—viz., had it not a right to make the alteration com- plained of? Mr Forbes argues that the change is a change of doctrine, and, being so, is incompetent : the Synod denies that there is any change of doctrine, or any serious change of practice ; but rather avoids deciding the question whether and how far such a change, had it existed, would have been competent for the Church. While these sheets are passing through the press, the appeal case has been heard at the bar of the House of Lords, and the decision of the Court below unanimously affirmed. Extracts from the judges’ opinions will be found in the Appendix. APPENDIX. 213 APPENDIX TO CHAPTER V. NOTE A. CHURCHES AND THE DOCTRINE OF CONTRACT. The doctrine that Churches are founded on contract presents many ad- vantages and facilities for the administration of law, but it has at the same time some disadvantages. Of these the first in order, though perhaps not the most important, is that it is not true. Churches do not spring out of contract any more than families or nations do. And they are not mere religious associations. There are innumerable religious associations in this and every country; but they do not claim to be Churches. They claim to be founded on contract; and because they do so, they are not Churches, according to the universal use of language. Churches claim to be founded on the relation of the individuals composing them to God, and they are founded on the belief of that relation. So the submission of each member to their so-called jurisdiction is rather his submission to God’s jurisdiction assumed to be exercised in matters ecclesiastical through church-rulers as in matters temporal through civil rulers. This of course is the theory of Scotch Churches especially, as laid down in the standards familiar to the Statute-book. The Court cannot, however, admit this alleged divine authority as a fact in any case, unless it chooses to do so in the case of an established Church. All other Churches it regards as founded not on divine authority, but on their own persuasion of divine authority. The Court does not believe in this divine obliga- tion, and cannot be expected to do so. But they do. And as a matter of fact it is on this conscientious belief that they have been founded. To say that they have been founded on contract is either an inaccurate use of words or a convenient and justifiable legal fiction. Originally and fundamentally there is no contract between the members. Mutual relations of the nature of quasi-contract no doubt soon and necessarily arise between them, and these get indefinitely complicated as the Church deals with civil interests. But Church authority historically rests, and permanently rests, if not upon divine right, which the Court will not allow, at least upon a persuasion of divine right—+z.e., upon conscientious obligation, a different category from contract. No doubt this chapter of conscientious obligation is one so embarrassing for jurisprudence that it would be allowable to substitute any other name that would equally serve the purposes of justice. But (in the second place) it remains to be seen how far the idea of contract will be adequate as a sub- stitute. Could we—through the means of a contract of jurisdiction, a con- S 274 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. tract of authority, a contract of obedience, a contract of faith—restore all the elements of the original and true Church relation, obliging the parties in each case to prove, as in an ordinary case of civil consensus, that such ele- ments did exist, and then giving judicial effect to them, the legal path might be safe though circuitous. But apart from the difficulties of proof, it has yet to be seen how far all or any of these ideas, undoubtedly parts of the Church relation, can be allowed entrance under the narrower category. We have already seen significant intimation that it might become pars judicis to step in and refuse effect to some of these, though admitted to have been conditions in the contract made, on the ground of pactum illicittum. The circumstance is most suggestive. It proves that it is impossible to deal with this matter exhaustively otherwise than as a branch of public law. If the existence of Churches, as divine institu- tions, or at least as religious institutions founded on conscience, is denied, and they are attempted to be dealt with under the category of private contract, it will be necessary that public law step in at a later stage to rectify the inadequacy of the earlier treatment, The decision in each particular case whether that voluntary jurisdiction (which it would be the easiest of all things to prove to have been submitted to in the case of nearly all Scotch Churches) is to be recognised by the Court, is not a decision that can be pronounced on the ground of contract, or upon any of the principles of private law. The admission, or the rejection, of such a fact are equally steps which belong to a higher region of jurisprudence, and which call for the exercise of those greater functions which courts are slow to exercise, but slower to resign. The majesty of law has always hitherto maintained its ability to deal on equal terms with religion and conscience, and all the greatest powers of human life; and a persistent attempt to evade this responsibility might lead not merely to self- impoverishment and degradation, but to positive danger. Those great spiritual forces, which create and rend nations, cannot be wholly com- pressed within the narrow limits of a commercial formula; and it is better to recognise that they cannot. The greater present anxiety to the law is counterbalanced by the diminished risk of future explosion ; and in the mean time there isno abnegation of her functions, ‘‘to whom all things in heaven.and earth do homage—the very least as feeling her care, and the greatest as not exempt from her power.” There can be no doubt that our courts will yet have to deal face to face with Churches as institutions founded neither on statute nor on contract, but on conscience towards God ; and there can be equally little doubt, in spite of some present appearances, that our law will not then be found to have prematurely disabled itself from the discharge of its highest functions. Ct APPENDIX. 27 NOTE B. M. RENAN ON THE CHRISTIAN CHURCH UNDER THE ROMAN LAW. An eloquent writer has recently pointed out that the attacks upon the Christian Church under the Empire were directed not so much against the individual religionist, as against the liberty of association—the Roman law making gatherings under the head of religion or vows come within the range of “ majestas” and the Lex Julia. “The root of all the perse- cutions,” says M. Ernest Renan, “was the refusal to allow communities to exist for purposes of religion within the State, but independent of the State.” And this, he argues, is for modern times the great question of the future. The statement is remarkable in one who founds the Church upon the “enthusiasm of humanity.” It would be in no respect extraordinary in a writer who should found it, as almost all Churches—Presbyterian, Epis- copalian, and Roman Catholic—have done, on the enthusiasm of Divinity and the obligations of the religious conscience. We take the following quotations from the chapter in the ‘ Les Apdtres’ of M. poner (Paris, 1866), entitled “The Religious Legislation of the Time : “La aie chose & laquelle l’empire romain ait déclaré la guerre, en fait de religion, c’est la théocratie. Son principe était celui de |’Etat laique ; il n’admettait pas qu'une religion efit des conséquences civiles ou politiques & aucun degré ; il n’admettait surtout aucune association dans lEtat en dehors de l’Etat. Ce dernier point est essentiel ; il est, & vrai dire, la racine de toutes les persécutions. La loi sur les confréries, bien plus que Vintolérance religieuse, fut la cause fatale des violences qui déshonorérent les regnes des meilleurs souverains. “ Une des principales attentions de Oésar et d’ Auguste fut d’empécher la formation de nouveaux colléges, et de détruire ceux qui étaient déja établis, Un décret porté, ce semble, sous Auguste, essaya de définir avec netteté les limites du droit de réunion et d’association. Ces limites étaient extrémement étroites. Les colléges doivent étre uniquement funéraires. . . . Voila pourquoi le christianisme se présenta longtemps & Rome comme une sorte de collegiwm funebre et pourquoi les premiers sanctu- aires chrétiens furent les tombeaux des martyrs. Si le christianisme n’etit été que cela, il n’etit pas provoqué tant de rigueurs ; mais il était bien autre chose encore ; il avait des caisses communes ; il se vantait d’étre une cité complete ; il se croyait assuré d’avoir Pavenir, “Les sociétés, une fois munies d’une autorisation epecinle, avaient a Rome tous les droits de personnes civiles ; mais cette autorisation m’était accordée qu’avec des réserves infinies, dés que les sociétés avaient une caisse et qu il s’agissait d’autre chose que se faire enterrer. Le prétexte de religion ou d’accomplissement de voeux en commun est prévu et formelle- ment indiqué parmi les circonstances qui donnent 4 une réunion le car- 276 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. actére de délit ; et ce délit n’était autre que celui de lése-majesté, au moins pour Vindividu qui avait provoqué laréunion. Claude alla jusqu’a fermer les cabarets ot les confréres se réunissaient, jusqu’’ interdire les petits restaurants ou les pauvres gens trouvaient & bon marché de l’eau chaude et du bouilli. Trajan et les meilleurs empereurs virent toutes les associa- tions avec défiance. L’extréme humilité des personnes fut une condition essentielle pour que le droit de réunion religieuse ffiit accordé ; et encore Vétait-il avec beaucoup de réserves. Les légistes qui ont constitué le droit romain, si éminents comme jurisconsultes, donnérent la mesure de leur ignorance de la nature humain en poursuivant de toute fagon, méme par la menace de la peine de mort, en restreignant par toute sorte de précau- tions odieuses ou puériles un éternel besoin de ’&Ame. Comme les auteurs de notre Code Civil, ils se figuraient la vie avec une mortelle froideur. Si la vie consistait a s’amuser par ordre supérieur, & manger son morceau de pain, & gofiter son plaisir en son rang et sous l’ceil du chef, tout cela serait bien congu. Mais la punition des sociétés qui s’abandonnent a cette direction fausse et bornée, c’est d’abord l’ennui, puis le triomphe violent des partis religieux. Jamais ’homme ne consentira & respirer cet air gla- cial ; il lui faut la petite enceinte, la confrérie ob Von vit et meurt en- semble. Nos grandes sociétés abstraites ne sont pas suffisantes pour ré- pondre 4 tous les instincts de sociabilité qui sont dans VPhomme. Laissez- le mettre son cceur 4 quelque chose, chercher sa consolation ow il la trouve, se créer des freres, contracter des liens de ceeur. Que la main froide de lEtat n’intervienne pas dans ce royaume de l’éme, qui est le royaume de la liberté. La vie, la joie ne renaitront dans le monde que quand notre défiance contre les collegia, ce triste héritage du droit romain, aura dis- paru. L/association en dehors de l’Etat, sans détruire )Etat, est la ques- tion capitale de l’avenir. La loi future sur les associations décidera si la société moderne aura ou non le sort de lancienne. Un exemple devrait suffire : ’empire romain avait lié sa destinée & la loi sur les ceetus illiciti, les cllicita collegia. Les chrétiens et les barbares, accomplissant en ceci Poeuvre de la conscience humaine, ont brisé la loi ; Empire, qui s’y était attaché, a sombré avec elle.” M. Renan has sometimes slender evidence for his conclusions, and the texts on this subject in the Roman law are very few. One of them is under the title “ Quod Cujuscunque” (Dig. 3. 4. 1), which begins, “ Neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur ; nam et legibus, et senatus-consultis, et principalibus consti- tutionibus ea res coercetur: paucis admodum in causis concessa sunt hujusmodi corpora, ut ecce, vectigalium publicorum,” &e. The other important heading, “De Collegiis et Corporibus” (Dig. 47. 22. 1), says distinctly that “religionis causa coire non prohibentur,” provided the senatus-consulta are not infringed ; but Ulpian (Dig. 47. 11. 2) observes that “sub preetextu religionis, vel sub specie solvendi voti, ccetus illicitos nec a veteranis tentare oportet ;” and the same jurist (tit. “ De Coll. et Corp.”) makes the penalty of anillicit collegium to be that provided by APPENDIX. ey the Lex Julia Majestatis for attempts “ adversus populum Romanum vel adversus securitatem ejus.” The Code Napoléon, to the administration of which M. Renan seems to refer, defines Socvété as a contract by which two or more persons agree to put something into common property, with the intention of getting some benefit from it. It lays down that every society must have a lawful object, and must be contracted for the common interest of the parties, and that each member of it must contribute either money, or other goods, or his industry. It takes no notice of religious associations. NOTE C. THE SCOTTISH TOLERATION ACT. An Act to prevent the Disturbing those of the Episcopal Communion in that part of Great Britain called Scotland, in the Exercise of their religious Worship, and in the use of the Liturgy of the Church of England ; and for repealing the Act passed in the Parliament of Scotland, intituled An Act against irregular Baptisms and Marriages. (10th of Anne, cap. 7, a.p. 1711.) Whereas, since the abolishing of Episcopal government in Scotland, those of the Episcopal persuasion there have been frequently disturbed and interrupted in their religious assemblies, and their ministers prose- cuted for reading the English service in their congregations, and for administering the sacraments according to the form and manner pre- scribed in the Liturgy of the Church of England: Be it therefore enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same, that it shall be free and lawful for all those of the Episcopal communion in that part of Great Britian called Scotland, to meet and assemble for the exercise of divine worship, to be performed after their own manner by pastors ordained by a Protestant bishop, and who are not established ministers of any church or parish, and to use in their congregations the Liturgy of the Church of England, if they think fit, without any let, hindrance, or disturbance from any person whatsoever; and all Sheriffs of Shires, Stewards of Stewartries, and Magistrates of Boroughs, and Justices of the Peace, are hereby strictly required to give all manner of protection, aid, and assistance to such Episcopal ministers, and those of their own com- munion, in their meetings and assemblies for the worship of God, held in any town or place, except parish churches, within the extent and juris- diction of that part of Great Britain called Scotland. 278 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. II. Provided always, and be it enacted by the authority aforesaid, that none shall presume to exercise the function of a pastor in the said Epis- copal meetings and congregations, except such as shall have received holy orders from the hands of a Protestant bishop ; and that every person who shall be called or appointed to be a pastor or minister of any Episcopal congregation or assembly, before he take upon him to officiate as pastor of the said congregation, be hereby obliged and required to present his letters of orders to the Justices of Peace, at their General or Quarter Sessions to be held for the shire, stewartry, city, town, or other place in which the said Episcopal congregation is or shall be; and that the said letters of orders be there entered on record by the register or clerk of the said meeting of the justices, for which there shall be no greater fee or reward taken than the sum of one shilling. III. And be it further enacted by the authority aforesaid, that all ministers of the Established Church of Scotland, and all and every person and persons, who is or are pastor or pastors, minister or ministers, of any Episcopal congregation in Scotland, shall be obliged and are hereby required, on or before the first day of August next, to come to take and subscribe the following oaths, in such manner and under such penalties, as all officers, civil and military, in Scotland are obliged to take the oath recited in the fourteenth Act of the sixth year of her majesty’s reign, intituled An Act for the better Security of her Majesty’s Person and Government; and that all ministers of the Established Church of Scotland, hereafter to be admitted into their respective churches or benefices, and all and every person and persons, who shall hereafter be pastor or pastors, minister or ministers of any Episcopal congregation, shall, before such admission or exercise of their respective functions, be obliged to take and subscribe likewise the following oaths, in the same manner, and under the same penalties above mentioned: “TI, A. B., do sin- cerely promise and swear that I will be faithful, and bear true allegiance to her majesty Queen Anne. So help me God.” “TI, A. B., do truly and sincerely acknowledge, profess, testify, and declare, in my conscience before God and the world, that our sovereign lady Queen Anne is lawful and rightful queen of this realm, and of all other her majesty’s dominions and countries thereunto belonging. . . . And all these things I do plainly and sincerely acknowledge and swear, according to these express words by me spoken, and according to the plain and common sense and understanding of the same words, without any equivocation, mental evasion, or secret reservation whatsoever. And I do make this recogni- tion, acknowledgment, abjuration, renunciation, and promise, heartily, willingly, and truly, upon the true faith of a Christian. So help me God.” IV. Provided always, that the assemblies of persons for religious worship in the Episcopal meetings be held with doors not locked, barred, or bolted during such assembly; and that nothing herein contained shall be construed to exempt any of the persons frequenting the said Episcopal congregations from paying of tithes or other parochial duties to the church or minister of the parish to which they belong and in which they reside. APPENDIX. 279 V. And whereas sinée the establishment of the Presbyterian govern- ment in Scotland, some laws have been made by the Parliament in Scot- land against the Episcopal clergy of that part of the United Kingdom, and particularly an Act passed in the Parliament held in the year one thousand six hundred ninety-five, intituled Act against irregular Baptisms and Marriages, by which all Episcopal ministers, who were turned out of their churches, are prohibited to baptise any children, or to solemnise any marriage, upon pain of perpetual imprisonment or banishment: Be it therefore enacted by the authority aforesaid, that the said Act above mentioned be hereby repealed and annulled; and that in all time coming no person or persons shall incur any disability, forfeiture, or penalty whatsoever upon account of his or their resorting to the said Episcopal meetings held for the worship of God; and that it shall be free and lawful for all the subjects in that part of Great Britain called Scot- land to assemble and meet together for divine service without any disturbance, and to settle their congregations in what towns or places they shall think fit to chuse, except parish churches, and for the Episcopal ministers not only to pray and preach in the Episcopal congregations, but to administer the sacraments, and marry without incurring any pain or penalty, any law or statute to the contrary notwithstanding. VI. Provided always, that the parents who have their children chris- tened by Episcopal ministers be hereby obliged to enter the birth and christening of their children in the register-books for christenings belong- ing to the respective parishes in which they live; and provided likewise, that no Episcopal minister or ministers residing within that part of the United Kingdom called Scotland presume to marry any persons but those whose bans have been duly published three several Lord’s days in the Episcopal congregations which the two parties frequent, and in the churches to which they belong as parishioners, by virtue of their resi- dence; and that upon the same pains and punishments as are already inflicted by the laws of Scotland in cases of clandestine marriages, and the ministers of the parish churches are hereby obliged to publish the said bans; and in case of neglect or refusal, it shall be sufficient to pub- lish the said bans in any Episcopal congregation alone, any law, statute, or custom to the contrary notwithstanding. VII. Provided always, and it is the true intent and meaning of this Act, that all the laws made against prophaneness and immorality, and for the frequenting of divine services on the Lord’s day, commonly called Sunday, shall be still in force, and executed against all persons that offend against the said laws, or shall not resort to some church, or to some congregation or assembly of religious worship allowed and permitted by this Act. VIII. Provided likewise, that neither this Act nor any clause, article, or thing herein contained, shall extend, or be construed to extend, to give any ease, benefit, or advantage to any Papist or Popish recusant whatsoever, or to any person that shall deny in his preaching or writing the doctrine of the blessed Trinity. 280 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. 1X. And be it further enacted by the authority. aforesaid, that if any person or persons, at any-time after the twenty-fifth day of March next to come, shall willingly and of purpose, maliciously or contemptuously, come into any congregation or assembly of religious worship permitted by this Act, and disquiet or disturb the same, or give any disturbance to the said congregation at the doors or windows, or misuse any minister or pastor of such congregation, such person or persons, on proof thereof before two Justices of the Peace, by two or more sufficient witnesses, shall find two sureties to be bound by recognisance in the penal sum of fifty pounds sterling, for his or their appearance at the next General or Quarter Sessions, or before the Court of Justiciary, or other judge or judges com- petent, and in default of such sureties shall be committed to prison, and upon conviction of the said offence at the said General or Quarter Sessions, or before the said Court of Justiciary, or other judge or judges competent, shall forfeit the sum of one hundred pounds sterling; one moiety thereof to the informer, the other to be disposed of for the use of the poor of the parish where such offence shall be committed: and if the magistrates of any town or place, or others pretending to have authority or jurisdiction any where in Scotland, shall, in contempt of this law, forbid or hinder those of the Episcopal persuasion from meeting or assembling together for divine worship in the places subject to their jurisdiction, or shall shut up or cause to be shut up the doors of the houses or other places where such Episcopal assemblies are held, or intended to be held, such magistrates or others so offending, upon proof thereof before the Court of Justiciary, by two or more sufficient witnesses, shall forfeit the sum of one hundred pounds sterling, to be distributed as aforesaid. X. And be it further declared and enacted by the authority aforesaid, that no civil pain or forfeiture, or disability whatsoever, shall be in any ways incurred by any person or persons, by reason of any excommunica- tion or prosecution in order to excommunication by the Church judica- tories, in that part of Great Britain called Scotland; and all civil magistrates are hereby expressly prohibited and discharged to force or compel any person or persons to appear when summoned, or to give obedience to such sentence when pronounced, any law or custom to the contrary notwithstanding. XI. And be it further enacted by the authority aforesaid, that every minister and preacher, as well of the Established Church in that part of Great Britain called Scotland, as those of the Episcopal communion protected and allowed by this Act, shall, at some time during the exercise of the divine service in such respective church, congregation, or assembly, pray in express words for her most sacred majesty Queen Anne, and the most excellent Princess Sophia, Electress and Duchess-dowager of Han- over whilst ving, and all the royal family. And every such minister or preacher neglecting to do so, shall for the first offence forfeit the sum of twenty pounds sterling, to be recovered and distributed in such manner as touching the other penalties in this Act is herein before directed: and for the second oifence every minister of the Established APPENDIX. 281 Church in that part of Great Britain called Scotland, being thereof con- victed by the oaths of two sufficient witnesses before the Lords of Justi- ciary, shall be ipso facto deprived, and declared incapable of any church or ecclesiastical living during the space of three years; and every Episco- pal minister allowed and protected by this Act, being thereof in like man- ner convicted, shall from thenceforth forfeit and lose the benefit of this Act, and be declared incapable of officiating as pastor of any Episcopal congregation during the space of three years. XII. Provided always, that no minister or preacher offending herein shall suffer such penalties, or either of them, unless he be prosecuted for the same within the space of two months after the offence is committed. NOTE D. THE CASE OF DUNBAR v. SKINNER. In giving judgment, on 3d March 1849 (11 D. 945), in this case, the circumstances of which have been generally stated m the text, the Lord President Boyle said :— “ That no privilege, or claim of jurisdiction, as it has sometimes been styled, has been established in the person of the reverend defender, so as to render it incompetent for this Court to take cognisance of the action at the instance of the pursuer, the Rev. Sir William Dunbar, when the summons, the record, and the various documents and productions referred to by the parties are attended to, seems to me a proposition that is most abundantly manifest. As all that the Lord Ordinary has done is ‘to re- pel the defences pleaded in respect of privilege, and to sustain the com- petency of the action as well as the jurisdiction of the Court to try the same, and as he only remits to the Issue-clerks that the cause may be prepared for trial in common form, it seems to be free from all doubt that the Lord Ordinary has adopted the only course that is proper under the circumstances. “ For surely it cannot be doubted that, even if the reverend defender can successfully establish that all that is complained of as to his proceed- ings by the pursuer, was protected and justified by his having acted only in the due exercise of the privilege he asserts to belong to him as bishop of the Scottish Episcopal Communion, acting with the assistance of his Synod, it is still undoubtedly within the jurisdiction of this Court to try such an action as the present, concluding for damages on the ground of a grievous wrong having been inflicted, as set forth in the summons and record. For, supposing such an action concluding for damages had been raised even against one of the most eminent ministers of the Established Church of Scotland, no allegation of privilege on his part, or assertion that he was only acting in the exercise of his ecclesiastical functions, 282 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. could be pleaded as a bar to the competency of the action, or to exclude the jurisdiction of this Court to try it. We have had many such cases recently brought before us, in which reverend clergymen have been called as defenders, such as Smith v. Gentle, Adam v, Allan, and the case of Dudgeon against a minister of a parish in the north of Scotland, in all of which, while privilege and the exercise of ecclesiastical jurisdiction were pleaded in defence, nobody contested the jurisdiction of this Court to entertain the actions. “The sustaining the jurisdiction of this Court, and finding such an action competent, does not certainly preclude the defender from pleading on his privilege; but that is not a reason for at once dismissing the action. Nothing is yet decided by the Lord Ordinary as to what form of issue may be necessary for the pursuer to adopt, and we are not at present arrived at that stage so as to be able to decide that no issue should be granted. All that has hitherto been decided is, that the reverend de- fender has shown no such privilege as entitles him to object to the com- petency of the action, or exclude the jurisdiction of this Court to try the case. “Such, then, being the shape in which the interlocutor of the Lord Ordinary truly presents the case to us, I hardly think it necessary to say more, because it is*possible that when issues are prepared they may give rise to discussions on which it may become indispensably necessary for the Court to enter, and to deliver an articulate judgment regarding them. At present it appears to me to be premature for us to advert, with any degree of particularity, to the various topics on which so much was said on both sides of the Bar, “T am, however, quite satisfied that the defender has been entirely unsuccessful in showing—notwithstanding his extensive and elaborate review of the history of the Scottish Episcopal Communion, beginning from its first legislative recognition, in the Act of the 10th of Queen Anne, granting it toleration and protection, after Prelacy had been totally abolished at the Revolution, and the Presbyterian Church fully estab- lished, according to the Bill of Rights, and declared unalterable by the Treaty of Union; and tracing it down through the heavy pressure laid upon it in 1746, by the 19th of Geo. IT., c. 38, and the repeal of that Act by the 32d Geo. ITI., c. 63, and again extending to it equal toleration with that granted to any other body of Protestant dissenters from the Church of Scotland—that any jurisdiction whatever was conferred upon its bishops, and certainly nothing of the nature of privilege such as can exclude a court of law from entertaining an action such as the present, against any of its members. Neither can the late statute of her present Majesty, 3 & 4 Vict., c. 33, though unquestionably recognising the order of bishops of the Protestant Episcopal Church in Scotland, apparently for the first time, and conferring, under certain limitations, the right on the bishops or clergy of the Scottish Episcopal Church in Scotland, to officiate in the Churches of England or Ireland, provided they have been ordained by a bishop thereof, have any such effect. This recognition of the order of APPENDIX. 283 Scottish Episcopal bishops cannot, however, aid the defender’s objection to the jurisdiction of this Court, or establish his right to deal with the pursuer as complained of in the summons. And surely the late judgment and opinions in the House of Lords, in the case of Snell’s exhihition, establish beyond all controversy, that there exists in Scotland no Episco- pal Church whatever, except as a distinct sect, fully recognised and pro- tected under the Toleration Act.” Lord Fullerton said :— “The objection to the jurisdiction forms the subject of the defender’s first plea in law, and is as follows: ‘1. The declaration of rejection complained of, being an ecclesiastical and judicial sentence wn spiritualt- bus, regularly pronounced by the defender with his clergy sitting in law- ful Synod, in his ecclesiastical character as a bishop of the Protestant Episcopal Church in Scotland, of which the pursuer was a minister, can- not be called in question by the pursuer, or interfered with by a civil court. The defence of privilege forms the ninth plea, and is, in the pre- sent stage of the process, inseparably connected with and dependent on the proposition assumed in the first—viz., that the sentence pronounced by the defender was so pronounced in virtue of the jurisdiction vested in him as a bishop of the Protestant Episcopal Church in Scotland. In short, it is maintained that this Court has no jurisdiction, because the defender had the exclusive jurisdiction in the matter involved in the sentence complained of by the pursuer. “Now, I cannot entertain a doubt that the Lord Ordinary was perfectly right in repelling that defence. The jurisdiction of a bishop of the Pro- testant Episcopal Church in Scotland has no existence. Indeed, though not expressly disclaimed, it was hardly asserted in the defender’s argu- ment, unconnected from the other point, to be afterwards considered, of the relative rights and duties created by special agreement between the ~ parties. “ According to the definition of the civil law, jurisdiction is ‘ potestas judicandi et exsequendi causas jure magistratus competens. According to our own, as laid down by Erskine, ‘jurisdiction is a power conferred on a judge or magistrate to take cognisance of and determine debatable questions according to law, and to carry his sentences into execution.’ And taking the widest construction of these terms ‘judge and magis- trate,’ jurisdiction necessarily implies the existence of a power conferred by the State, and vested in functionaries sanctioned for that purpose by the State. Accordingly we have various courts of civil, criminal, and fiscal jurisdiction ; and we have courts of ecclesiastical jurisdiction in our presbyteries, synods, and General Assembly. But, in regard to the Pro- testant Episcopal Church of Scotland, it appears to me that this Court, administering the laws of the realm, can recognise no jurisdiction what- ever as existing in any official of that communion. They enjoy, it is true, toleration, but merely as a body of private individuals, united by particular religious views, and associated for the laudable purpose of pro- moting those views. Bishops, of course, are, in some of the tolerating 284 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. Acts, recognised as existing de facto. But no office-bearer of their com- munion, or of any other merely tolerated communion, can lay claim to jurisdiction any more than the office-bearer of any private association. “ But this goes far to solve the only question now before us. For if there is here no jurisdiction in the proper sense of the term, pleadable by the defender, the question truly resolves itself into one of agreement, and that seems to be the import of the second plea in law. “Now, there is no doubt that all parties entering into an association for purposes not prohibited by law, may effectually bind themselves to sub- mit without appeal to the determination of certain matters, and even to the infliction of certain censures, by the official authorities to whom such power is committed by the terms of the association; and if it could be instantly shown, without any further inquiry, that, by the admitted or proved circumstances of this case, the defender had absolutely bound: himself to submit to such a sentence as that for which he now seeks redress, the defence in the second plea in law might have been sustained, and the case sent out of Court. But can it be said with any show of reason, that the case does stand in that situation? or that the Lord Ordi- nary was wrong in holding that there were various matters of fact here on which the parties were at variance, and which required to be ascer- tained in the usual way, before the case could be disposed of. “In the first place, when the defender’s case is put, not on jurisdiction, where I think it cannot rest, but on the terms or conditions of that pri- vate association designated the Protestant Episcopal Church in Scotland, the defender cannot advance a step without proving the nature and extent of his rights and powers as a bishop of that Church. We, admin- istering the law of Scotland, are presumed to know the nature and limits of the jurisdiction of the various constituted authorities. But of the rights and powers of a bishop in the Scottish Episcopal Church we can know nothing until they are established in evidence, like the terms and conditions of any other association. ‘Secondly, the nature of the alleged agreement in this case presents additional difficulties. It is one of a very peculiar kind.” NOTE E. THE CARDROSS CASE—FIRST JUDGMENT. In pronouncing judgment on the question of satisfying the production in this case, on 23d December 1859 (22 D. 290), the Lord President (Lord Colonsay) said :— “A good deal is said throughout the papers, especially in the revised case for the defenders,—which, I suppose, is language intended to be used in a limited sense,—in which they describe their authority over the body APPENDIX. 285 in this way: ‘While the Free Church cannot prevent parties betaking themselves to the civil courts, they can say, and have said, that, as a Church of Christ tolerated by law, they have an independent jurisdiction in spiritual matters, and that, if a member does not choose to abide by their sentences, he cannot remain in their body.’ And again they say, ‘That the sentences themselves, and consequently an action for the pur- pose of reducing them, involve exclusively a question of ecclesiastical discipline, and not any question of civil right; and that therefore a civil court cannot take cognisance of them; and that an allegation that a court which is admittedly supreme in all matters which come within its jurisdiction has violated its forms of process, is a plainly irrelevant ground of action, for the simple reason, that the admission that the court is a supreme court necessarily involves an admission of its power to regulate its forms.’ Now, in using this expression ‘court,’ ‘a supreme court,’ and ‘ court of supreme jurisdiction,’ I presume the parties mean to use it as the most convenient way of expressing what the rules and consti- tution of that body are. For in a strict sense I cannot hold that they are a court recognised as such by law—a supreme court recognised by law, or exercising jurisdiction in a strict sense. I adopt upon that subject the views and expressions of Lord Fullerton in one of the cases which were previously decided. But they are convenient enough expressions for indicating the kind of self-constituted jurisdiction and authority that these parties have by their own constitution; that they have formed themselves into presbyteries, synods, and General Assembly; that they have subjected themselves. to certain authority which they have agreed to confer on these respective bodies; and that the ‘court’ is used in that sense, and the word ‘jurisdiction’ in that sense; and in that sense it is easily intelligible.” Lord Ivory held that the importance of the case was exaggerated :— “There seems more or less on both sides to be no inconsiderable mis- apprehension as regards the practical and ultimate bearing and operation of the present action. It will settle nothing, or all but nothing, of the larger field of constitutional matters that have been brought under dis- cussion; for even were the pursuer to succeed, that judgment could not materially, if at all, affect the radical and fundamental right of the defen- ders to fraine a new constitution for their body, under which, there being nothing incompatible with the public law of the country, they might competently and validly bind their members to fulfil and obtemper all and every of those provisions and enactments therein embodied, and so framing a mutual compact whereby they would be well and lawfully associated, and to which contract the various consenting parties would thenceforth be subject. The power of the defenders, as of every other dissenting Church, and, indeed, as the power of every private association of individuals, so to associate themselves together, and, in all respects, not encroaching on the law of the land, to frame a code of by-laws bind- ing within their body, no one would be disposed to dispute, and this Court would be the first to support, and the last to interfere with. Ac- 286 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. cordingly it is not there that any difficulty arises in the present case. The puzzle here is in getting at the solution of two questions—first, What truly is the contract? and second, What is its sound and legal construc- tion, if it exists? If the present constitution, therefore, shall turn out to work defectively in any respect, it only follows that it has in so far been ill made, and the parties might at once proceed to frame another and a better. But whatsoever contract they may frame, certainly no more than any other contracting parties, whether an association or individuals, will they be able to exclude the ordinary civil jurisdiction of this Court to decide between the members—Ist, Whether such a contract does really subsist or not? 2d, What is the true measure and meaning of that con- tract ? and 3d, What is the construction and interpretation to be put on any one or more of its particular clauses and provisions, about which the members of the body are at variance? When these questions, however, are once settled—and they are clearly here, as in all other questions of private contract, questions for the decision of a civil tribunal—this Court may be excluded from interfering in any matter which truly falls within the contract, and the dealing with which the parties have reserved to themselves. But if anything be attempted out of the contract, and beyond its stipulated action, the Court undoubtedly will continue to have jurisdiction in that case, as in every other, to keep the contracting parties to the bargain, whatever it may be, which they have made for themselves. It may be of use, therefore, and tend somewhat to allay any apprehension that in any quarter may exist, to keep in view that such is all the length which even the most unfavourable decision in the present case could possibly go as against the defenders. The parties are here at issue as to what their contract is, and this must be decided be- tween them. But were the decision to be ever so unsatisfactory, the remedy is open. The Free Church and its members would only have to begin anew, and frame with greater care and better success a fresh con- tract, more perfect in its operative enactments, and more consonant with the views and intentions of all and sundry.” Lord Curriehill, under one of the heads of his speech, observes :— “1. It is maintained that the pursuer has no title to insist in this action. Assuming that he would succeed in establishing the case he has stated in the summonses, I cannot doubt that he has a sufficient title to insist in them. If it be true that by the sentences complained of he has been deprived of his office, status, and emoluments thereto attached, that these sentences were ultra vires of the body by whom they were pro- nounced, and that he is in consequence entitled to pecuniary reparation from the defenders, he has a good title to insist in an action for trying the legality and validity of these sentences. Hence it is plain that the merits of this objection depend upon the merits of the actions themselves ; and that it cannot be sustained as a preliminary bar to the trial of these actions. “2. It is maintained that the reductions are incompetent in this Court because the sentences were pronounced in matters of ecclesiastical disci- APPENDIX. 287 pline or Church government by a judicatory of an association of Chris- tians tolerated and protected by law. The meaning of this plea appears to be, not that the General Assembly of the Free Church is empowered by the conventional agreement among its members and office-bearers to exercise authority over them, because they state a separate plea to that effect—to which I shall presently advert—but that it is a judicial institu- tion. If this is what is meant by the plea, it plainly cannot be sustained. The dissenting bodies in this country, although they are unquestionably tolerated and protected by law, are still in their nature and character only voluntary associations or societies, and those office-bearers whom they appoint for the management of their affairs are not included among the judicial institutions of the country. The associations themselves are constituted only by the conventional contracts of their members. Their office-bearers have no authority over any persons except those who are parties to these contracts; and their authority even over the latter does not extend beyond what is conferred upon such functionaries by the terms of the conventional constitutions of the societies. Nor does such authority over them endure longer than while they voluntarily remain members of the association. If this plea has any other meaning, it has not hitherto been explained to us; and therefore it cannot at present be sustained as a bar to the progress of the cause. If the defenders have any other explanation to give of it, or can state anything further in sup- port of it, as a defence on the merits of the actions, it will be open to them to do so under the reservation with which the judgment now to be pronounced will be qualified. “3. It is maintained that the pursuer, as a minister of the Free Church, did contract and bind himself to submit to the discipline and government of that Church. This plea raises what is truly the main question in this case. The parties are agreed that, by the contract which forms the con- stitution of the Free Church, the pursuer became bound to submit to its discipline and government. Both parties found upon that contract; and the question between them, when sifted, comes to be, whether or not, by that contract, authority was conferred upon the defenders, the Free Church Assembly, to pronounce the sentences under challenge. If it did, the pursuer, who was confessedly a party to that contract, is bound to submit to these sentences. If it did not, he is not bound to do so. Hence the question between the parties appears to me at present to re- solve into one as to the true meaning and effect of the contract.” Lord Deas’s statement is especially clear and vigorous; and though violently opposed to the whole doctrine of the Scottish Church as to the source of Church jurisdiction, it lies very much in the line of the import- ant judgments of the heads of the Court in the leading cases in 1838 and afterwards, and also, it may be said, of the dicta of Erskine :— “Now, if anything be clear in the case, it is, that.the defenders are invested with no jurisdiction whatever, ecclesiastical or civil, All juris- diction flows from the supreme power of the State. The sanction of the same authority which enacted the laws is necessary to the erection of 288 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. courts, and the appointment of judges and magistrates to administer the laws. The Established Church of Scotland had, and has, this sanction. The statute law of the land conferred upon it ecclesiastical jurisdiction, to be exercised by kirk-sessions, presbyteries, provincial synods, and General Assemblies. But there is no such statute law applicable to the association called the Free Church. When the defenders separated from the Establishment, they left all jurisdiction behind them. If they meant to carry it with them, as some expressions in the deeds and writing pro- duced would seem to indicate, it is enough to say that this could not be done. No voluntary association can, by an agreement among its mem- bers, assume jurisdiction, which flows only from the legislative power and royal prerogative. The Free Church of Scotland is a voluntary associa- tion, tolerated and protected by law, as all voluntary associations, for lawful purposes, in this free country are. What is termed toleration is in reality freedom, just as much as if there were no Established Church in the country. But the presbyteries, synods, and assemblies of the Free Church have not been erected into courts, either ecclesiastical or civil. The constituent members of these presbyteries, synods, and assem- blies are not judges in any legal sense. They sit, and act, and vote solely in virtue of private contract, regulating their proceedings among them- selves, and such contract neither does nor can confer upon them any jurisdiction whatever. There is no such thing as voluntary jurisdiction, in the ordinary sense of the term ‘ voluntary.’ What was called ‘ volun- tary’ jurisdiction in the Roman law, was that which related to matters admitting of no opposition, in contradistinction to ‘contentious,’ which related to matters debatable. Voluntary jurisdiction may be exercised by a judge at any time and in any place,—such as administering an oath of ratification to a married woman, or any lawful affidavit,—but still it must be by a judge. There is no such thing as a voluntary judge, in the sense of his being created either by his own act, or by the act and consent of any individual or set of individuals.” NOTE F. THE CARDROSS CASE—SECOND JUDGMENT. On 19th July 1861, the First Division unanimously affirmed the fol- lowing interlocutor of Lord Jerviswoode, Ordinary :— “13th November 1860.—Repels the first and third pleas in law stated on behalf of the defenders, the General Assembly of the Free Church of Scotland, and the office-bearers thereof, and also the first, second, and fourth pleas in law stated in defence for ‘the Rev. Dr Alexander Beith and others, as individuals; and, further, in respect that the parties are APPENDIX. 289 not agreed as to the terms of the constitution of the said Free Church of Scotland, and as to other matters of fact material to the issue raised under the record, and the pleas in law, other than those hereby disposed of, appoints the cause to be enrolled, that parties may be heard in regard to the manner and form in which probation is to proceed as to such matters; reserving entire the pleas of parties, excepting in so far as expressly dealt with by the present interlocutor, and reserving also all questions of expenses,” The chief pleas here referred to have been stated in the text. In pronouncing judgment, the Lord President, Lord Colonsay, ob- served :— “This question does not arise out of the proceedings of any established judicatory of the land, civil, criminal, or ecclesiastical—out of the pro- ceedings of any institution on which the State has conferred jurisdiction, or to which it has delegated power or authority of any kind. The ques- tion arises out of the proceedings of a voluntary association—a numerous body, certainly, of Christians—associated for purposes of religion—form- ing a religious society called, and perhaps not inappropriately, a Church, though we could get no accurate definition of that word; and it is a body of professed Christians, tolerated by law and enjoying the protection of the law in the expression and promulgation of their religious opinions and doctrines, and in the performance and exercise of their religious rights. That body has a constitution and rules by which the society is governed, and to which its members have voluntarily subjected them- selves; and in so far as they have subjected themselves to these rules, and to that constitution, the civil courts will not hold that they are entitled to complain when these rules are observed, unless there is some- thing in them contrary to the public law of the land. It is not necessary, in the view I take of this case at present, to go into the question whether any of these matters that are said on one side to form part of the rules of this association, and on the other not to be part of them, are of that character or not. It has certainly not been made out that they are. “ But this association formed for that proper and laudable purpose is an association which has temporalities as well as spiritualities. It has stipends, manses, offices of emolument, to the possession and enjoyment of which certain of its members are eligible. . . “T cannot assent to the proposition which was contended for on the part of the defenders, that, whatever may have been the constitution and rules of this association, and however flagrantly they may have been violated by the Assembly, no redress can be obtained in the civil courts. I think that, for injury done by gross violation of the contract, redress may be given, and in the form in which it is asked—that is to say, in the form of damages; and I think that there is no incompetency, but, on the contrary, that there is expediency, in accompanying the claim for damages with a conclusion for reducing the sentence, and having it declared null and void. There is no proposal here to review this sentence on its merits, or to review it at all in any technical or proper sense of fh 290 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. that term. The object is to have it declared null, and to have the pur- suer reponed and restored against it. That conclusion, I apprehend, must be construed with reference to the objects of the action, and the powers of the Court to which it is addressed. The Court may not have the power to repone and restore the pursuer to the ministry, but it does not thence follow that the Court may not repone and restore him, to the effect of depriving the sentence of which he complains of any validity as an obstacle to the prosecution of his civil rights and interests, whatever they may be. “Tt always comes back to this, Has the pursuer sustained injury by the act of the defenders in violation of the agreement which they entered into with him? Has that injury accrued to him in violation of the agreement ? It may be that there was no violation of the agreement. It may be that the pursuer and other members of this association have submitted themselves absolutely to the uncontrolled power, or it may be the caprice, of other members of the association. It may be, as was con- tended on the part of the defenders, that they are entitled, without being called in question, to do what they like with any of the members—that is to say, that their rules are in no way binding upon themselves—they may be binding on the individual members, but they are not binding on the body. They are no protection to the individual members compos- ing the association. If that shall be made out as part of the constitution of this body—if they are entitled at any time, as was the case put—if the General Assembly may any morning draw any ten names from the ballot- box and declare them to be no longer ministers of the body—for that was the legitimate consequence fairly admitted by the defenders—if that be part of the rules and constitution of this association—then this pursuer cannot obtain the redress which he asks, because he has submitted him- self to such conditions and such control. But until it is established that such is the contract—until we see what the contract is—until the pur- suer shows that the contract has been violated—we cannot take for granted either that it has or has not been violated. We must take the averments as they are made at present; and when we see the results of the investigation, which is what the Lord Ordinary has desired to inquire into, we shall then know how the case is to be further dealt with. If they could do that without violating their compact—if they could do all that is contended for—I think there would probably .be an end of this case, unless there was something in it that was contrary to morality and propriety. One can fancy in the contract of a body of this kind some- thing which the law will not recognise at all. I do not say there is any- thing of the kind here. If there were, it might still be open to the pur- suer to obtain redress. But I do not say whether that is so here. It is not necessary to go into that question now.” Lord Ivory said :— “T may take the liberty of expressing my surprise that this question has given rise to so much feeling and temper, as it is impossible to live in this country without perceiving that it has been attended with, in the APPENDIX. 291 different sections of the public mind. It seems to me an absolute delu- sion on the part of the members of the Free Church to speak of the in- terference of this Court in these proceedings as implying, in the most distant degree, an interference with the freedom of religious opinion or religious status in congregations or other combined bodies—as interfering in the slightest degree with their full and perfect freedom of action and toleration. The Free Church on this question is in precisely the same predicament with any other dissenting Church, and it is not necessary that that Church should be a Christian Church in order to entitle them to the freedom and toleration which the law of this country gives to all bodies associated in such a manner, so long as they do not interfere with or infringe the public law of the land. It isa very broad question, and it is impossible to approach it without seeing the necessity and the pro- priety of watching over the principles upon which such questions are to be dealt with, because justice demands that the same course shall be followed, and the same judgment pronounced, in regard to the rights of other tolerated bodies as in regard to the rights of this tolerated Free Church. “ Now, with reference to one and to all, 1 beg, for my own part, that I be distinctly understood as recognising the fullest right in the Free Church, and other dissenting Churches, to deal with their own constitu- tion. They are free within themselves to frame their constitution, and to set forth its principles and its limits, and to point out the duties and the course of conduct to be expected within the association. They may hold their own opinions, they may settle their own doctrines, they may regulate their discipline, they may regulate the appointment and the deposition of their officers. They may make what nobody will object to call their own judicatories, and in certain respects they are entitled also to settle and regulate their own forms of proceeding. All this they may do in the most complete manner; and when they have done so, if they will only add the virtue of remaining together, and not differing and contending with each other, they have the power of doing everything which any person whatever ought to wish in a free land to be entitled to do, They may also pronounce their sentences and decrees, and if they pronounce them within the powers given by the constitution, no man will interfere with them or say that they have done wrong. But if they are not conforming to the constitution—if they act against the powers which they have vested in their judicatories —if their sentences are pronounced by those who are not judicatories to that effect, it is a very different affair. Then what has been so done will have been done against law, will have been done so far against law that this Court must be entitled to interfere, and they will do so, because such proceedings will be an infringement and violation of the constitution, without which they cannot exist as a body at all. The moment they proceed beyond the powers vested in their officers, whoever these officers may be within their courts, whatever may be the decrees of subordination and succession of the tribunals, the moment they go beyond the constitution they are act- 292 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. ing wltra vires, they are acting in breach of their own solemn compact, and the proceedings which they thus perform may be quashed, and de- clared to be void. “ Their sentences and decrees in such a case will not be reviewed upon their merits. That has never been hinted at. It has never been at- tempted ; it would be beyond the jurisdiction of this Court or of any other court to interfere as to that. But, apart from that, the sentence may be bad for reasons of inherent invalidity, as well as for unsoundness in their reasonings upon which it is propounded. But if the parties have power by the constitution to deal with the question, and if they deal with it in the manner pointed out by their constitution, then, although they may err in the conclusions to which they may come, although they may err in the amount of proof with which they are satisfied, or although, in any other manner, they may pronounce an erroneous and unsatisfac- tory judgment, being within their power, being within that which the defender in the case has submitted to bear at their hands, it will not be interfered with. “ There has, in the course of this discussion, been a remark oftentimes repeated, that in regard to matter of process every judicatory is entitled to enforce its own rules, and that what they do in that respect is not reviewable at all. That is partly true, and partly not so. The case of Lockhart is a clear case. That was a case within the Established Church, and it must be kept in mind that the Established Church and its judica- tories form a recognised institution of the land—that the judicatories are of the description which exercise jurisdiction by authority of the country —that their courts are supreme and independent courts in ecclesiastical matters—that they are just as much supreme as the Justiciary Court is in regard to criminal questions, or this Court in regard to civil questions, —and, therefore, as every independent judicatory has inherent within itself the power of doing all which is necessary to follow out its proper jurisdiction, they may make their own forms of proceeding, and no other court can interfere, because no other court is more independent than themselves, and while they are proceeding within their proper functions, they are as supreme as this Court. But there is this important distine- tion in the present case, and I do not think it should be overlooked —it is too much overlooked, I am afraid, by these defenders—that even in the matter of process they have no jurisdiction. In the proper sense of the term they have none, but in the matter of pro- cess they have no power, and no jurisdiction, and no right to make rules; and these rules, when made, have no other authority than by the constitution consented to by all the parties, and made effectual in conse- quence of the agreement of the individuals composing that body. It is that, that is the measure of the form of process; and if, in the body of the constitution, it is expressed in distinct and intelligible terms what are the forms of process, then the members of the Church are entitled to have these forms followed out as much in regard to process as in regard to anything else.” . APPENDIX. 293 _ Lord Curriehill went carefully over the whole case, and remarked, with regard to the action of reduction :— “The other erroneous assumption of the defenders to which I have referred, is that, by the conclusion for reduction of the sentence and for restoring the pursuer against it i integrum, the pursuer calls upon this Court to replace him in an office from which he has been removed, and which he does not at present hold. As I read the summons, this is not the case. The fallacy upon which this assumption rests consists in over- looking a broad distinction which exists between two different kinds of actions of reduction, Those of the one class are in effect declaratory actions. Their object is merely to have it declared by the judgment of the Court that what is complained of never has had any validity or effect, and has been ab znztio null and void. Reductions of the other class have the effect of creating a nullity, in deeds or proceedings which are effectual so long as they are not rescinded. As examples of rescissory actions of the former class, reference may be made to the cases of reductions ‘of deeds granted by persons in a state of insanity or of pupillarity, and of decrees arbitral pronounced ultra vires compromissi. As examples of rescissory actions of the other class, reference may be made to reductions of deeds granted by minors beyond the years of pupillarity on the ground of minority and lesion, or of deeds granted on deathbed. The distinc- tion between the two classes of reduction is also illustrated by those which are instituted for rescinding decrees of inferior courts. When the ground of reduction is only that the inferior court has exceeded its powers, the effect of the decree of reduction is merely to declare judicially the inherent nullity of the decree of the inferior court, and to leave entire the merits of the matter on which that court may have so incom- petently adjudicated ; and, accordingly, such an action of reduction is competent in this Court, even although the question on the merits be excluded from its jurisdiction. But if, in such a case, the summons ~ should also conclude that this Court should pronounce a judgment on the merits of the question itself, that conclusion would be dis- missed as incompetent. In the present case, what is sued for is merely a decree reducing the proceeding complained of as having been ab initio a nullity, and not a judgment on the merits of that proceeding. The re- medy, therefore, which the pursuer is seeking by this action is not of the nature and import which has been assumed by the defenders in their argument, but is limited to a demand for having the sentence reduced, as having been ab initio null for want of power in the defenders to pro- nounce it, and for reparation of loss and damage alleged to have been sustained by the pursuer in consequence of its having been so pronounced. What, then, are the defences which are pleaded against this action? The defenders deny the more important of the allegations of the pursuer as to the constitution of the Church; and make counter-allegations that by that constitution the ministers and the members individually of the asso- ciation bound themselves to submit implicitly to the sentences of the defenders, whatever these might be, and not to seek redress from a civil . 294. LEGAL THEORY OF NON-ESTABLISHED CHURCHES. — court, however much the defenders might exceed the power or contravene the conditions of their constitution. If thé defenders aver, as I under- — stand they do, that by their constitution the ministers and members individually of the Free Church have intrusted such arbitrary power to them, I am not prepared to hold that these averments would be irrelevant asa defence against this action. If, by the constitution of the Free ~ Church, its members and ministers individually have thought. it right or proper to surrender their right to challenge in a civil court any acts of their governing bodies, even although these should be contraventions of the condition of that constitution itself, I do not see why they should not be bound by that agreement. In the record the pursuer pleads that such a condition would be pactum ilicitum. But I don’t see that there would be anything contra bonos mores in such an agreement, even if its mem- bers had agreed to a condition that their General Assembly should, in the exercise of an unlimited discretion, and without assigning any reason for their conduct, be empowered to deprive any of their office-bearers of their offices, or even to expel from the association. I do not think there would be anything unlawful in such a contract. But as the allegations of the defenders are denied by the pursuer, I think that the Lord Ordinary is quite right to institute an inquiry into the truth of these disputed mat- ters. But while the defenders admit in their argument in this case that the constitution of their association is not only the source, but likewise the measure, of their powers over their members and ministers, they not- withstanding maintain that, although they should transgress the powers so committed to them in their proceedings agamst any of their members or ministers, the parties so wronged would not be entitled to have the nul- lity of the proceeding adjudged by this Court. The grounds upon which they maintain this doctrine in the present action are embodied in two of their preliminary pleas now under our consideration. They are—first, that the proceedings are ‘ spiritual acts done in the ordinary course of discipline of a Christian Church, tolerated and protected by law ;’ and, secondly, that ‘the actions, in so far as they conclude for reduction of the sentences com- plained of, do not relate to any question of civil right.’ These pleas raise a question of vast importance to all the individual members and office-bearers not only of the Free Church, but also of all the religious associations in Scotland ; for, while the questions raised upon the conditions of the con- stitution of the Free Church would affect the rights of the ministers and members of its own communion, the far wider question raised by those preliminary pleas would affect the rights of the ministers and members of all the religious associations in Scotland. That is a question between the members and office-bearers, individually, of these associations on the one hand, and the bodies to whom they intrust the supreme power of govern- ing them on the other. And the question is, Whether the former can have no redress whatever against the proceedings of the latter, however unlawful and unconstitutional these may be? For, if these pleas be well founded, no limits nor conditions which, in framing their constitutions, the members of such associations may think fit to place upon the powers APPENDIX. 295 of the bodies to whom they intrust the supreme power of managing their spiritual affairs, would be practically available to them, because in such cases, however much the proceedings of such ruling bodies might be beyond the power intrusted to them by their constituents, no redress could be obtained by the latter either extrajudicially — because there would be no other tribunal within the association itself to whom applica- tion for relief could be made—or judicrally, because the proceedings would, according to the plea, be spiritual acts, and would not relate to matters of civil right.” Lord Deas, in the following portion of his vigorous and eloquent speech, alluded first to the results of reduction, and afterwards to the necessity of having an inquiry into matters of fact :— “The notion that we shall, in any event, reduce these sentences, except in so far as they may form a bar to redress for civil injury, has not, so far as I know, been hitherto countenanced by any of your lordships. If there has been no civil contract at all—if no civil wrong, for which the law provides redress, has been committed—we shall neither give reduction nor damages. If, on the other hand, a civil contract has been violated, we cannot refuse to the pursuer an opportunity of establishing his claim for damages occasioned by that violation. If the sentences complained of shall be found to carry with them no presumption of validity, and so not to stand in the way of a claim of damages, there may be no necessity for any reduction of them. But if they are to be reduced, it has never occurred to me, and I do not think it has been suggested by any of your ° lordships, that .such reduction could go further than removing them out of the way as an apparent obstacle to patrimonial redress. Nobody con- templates that the defenders are to be ordained to receive the pursuer back into their association—to allow him to sit and vote in their presby- teries, synods, and general assemblies—or that the Free Church congre- gation at Cardross are to be compelled either to listen to his sermons or to absent themselves from the church, and leave him to preach in it to empty benches. The principle upon which we should decline to take that course is a very ordinary principle. If a master unwarrantably dismisses his servant, we give pecuniary redress ; but we do not compel the master to take the servant back into his service. If I engage a teacher in any department of science, literature, or art, the law will com- pel me to pay him, but the law will not compel me to be taught by him. It is not because the office of a, clergyman is a holy office—it is not be- cause those who ordained or deposed him did so by divine authority—it is not because the Church he belongs to is a Christian Church—it is not because the object of the association is a religious object—that we decline to interfere further than I have indicated; it is simply because this Court deals only with civil or patrimonial interests and consequences, and, while vindicating or giving redress for these, refuses to go beyond them. “It is upon the same ordinary principle that, if no civil interests are involved, we refuse to interfere at all. Men may associate themselves 296 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. together for innumerable purposes under rules and regulations which may be called, if you please, a contract or agreement, but of the breach or observance of which the law will take no cognisance. It is of no moment whether these purposes be trivial or important—temporal or spiritual—scientific or religious—so long as they do not involve civil or patrimonial rights. If our judicial interposition, or non-interposition, turned, to any extent, upon the laudable nature of the association—upon its object being spiritual or religious, or upon the truth or falsehood of its religious principles—it is quite plain that, before determining whether and how far we should interfere or not, we would have to inquire into and judge of the very matters and distinctions which the defenders are so anxious to keep in their own hands, and with which, happily, we have nothing to do. But if parties choose to connect with, or superadd to such objects, or any of them, a lawful civil contract—if they introduce the element of pecuniary or patrimonial remuneration—then our interposi- tion in aid of civil rights, and to redress civil wrong, is just as much a matter of course, irrespective altogether of what may be the object of the association, as our non-interference where the civil element is wanting. There are innumerable compacts or arrangements every day entered into which, although not to be compared in importance with compacts or arrangements as to matters of religion, may materially affect the comfort and happiness of society, and in respect of which, nevertheless, so long as they do not involve civil or patrimonial rights, no action will lie, either for implement or damages. Two persons agree to ride together, to dance together, to sing or play together, to travel together; the one breaks his engagement, and the other shall have no redress. But if the one has agreed to pay the other for the instruction to be derived in riding, danc- ing, music, or any other branch of study, or for accompanying him as his courrver or valet de place, the law will give redress to the party injured by the breach of that agreement. So it is in other matters, less or more important. The case is not varied by the introduction of the religious element. A number of persons agree to constitute themselves an associa- tion to read the Bible together, to pray together, to worship together. in any form which the law sanctions or tolerates, and the law will not in- terfere whether they keep or break such engagements. They may call themselves a Christian Church, or a Synagogue, or a Free Church, or a True Church, or any name'they please, and the law will not even inquire whether they merit the name they so appropriate, nor whether their doctrines be heterodox or orthodox, provided only their objects be not unlawful. They may assign to certain of their number certain functions —so many to be ministers or office-bearers of whatever kind suits the denomination to which they belong; and if the labours of the minister and other office-bearers are undertaken only by those who are rich enough and generous enough to undertake them gratuitously, the associa- tion may enjoy that happy state of freedom in which nobody is bound to anything. But if the association make a compact with certain of its members that, on condition of the latter going through a long course of APPENDIX. » 297 study and preparation, and devoting themselves exclusively to the labours of the ministry, they shall be held qualified to be inducted, and accord- ingly do induct them into the charge of particular congregations, with right to certain emoluments as a means of livelihood, and on the footing that the qualification thus conferred shall not be taken away except for one or more of certain causes, to be ascertained by certain tribunals, acting in a specified order, then the association, or its members, if they break this compact, may become liable for the consequences, precisely as if the emoluments had been attached to a purely secular qualification and employment. A minister is just as much entitled to rely upon his compact for the means of subsistence as any other man. A breach of that compact, whereby he and his family are thrown upon the world to starve, is a wrong which could only be left without a remedy in a country where law is unknown. It was stated by the defenders’ counsel, Mr Young, in answer to questions put, partly by your lordship in the chair, and partly by me, that the Free Church General Assembly might, at any time, resolve that any given number of ministers, whose names should be first drawn from a ballot-box, should be deposed ; and that, if the pursuer had been convicted of being sober, in place of being intoxicated, on Christmas- day 1857; or if the sentence had borne that he was the ablest man and the best preacher in the Church, and therefore that he was deposed, there would still have been no legal claim for redress. It may be so, if it can be shown either (jirst) that the» pursuer bound himself to such conditions, or (second) that the compact involved no matters of civil or patrimonial right. But if neither of these two things can be shown, the result seems just about as startling as that the Faculty of Advocates should be allowed, with impunity, to expel one of its members because he was the most able and accomplished and successful member of the body. If the ministers of the Free Church choose to agree that a majority of their General Assembly, or any other committee of the asso- ciation, shall have power to depose all or any of them at pleasure, without cause assigned, let them do so. No man in this country has any power over another, in matters either religious or civil, beyond what the civil law itself confers, except by that other’s own consent. But there is great latitude in the extent to which this consent may be carried. It may go the length of enabling any leader of a dissenting presbytery, synod, or assembly, who can command a bare majority at the moment, to have any leading member of the minority at once deposed, without cause assigned ; or of enabling the majority at once to depose the whole minority. But such consent,-to be effectual, must be clear on the face of the compact. The law will neither presume nor readily infer such consent where civil interests are involved. The liberty of the majority may be the slavery of each individual, and of the whole minority. That is not the kind of liberty which the law of this country favours. Still less does the law favour or even recognise the liberty of one party to a civil contract to break it with impunity, or to interpret it in his own favour to the pre- judice of the other party. The interpretation of all contracts belongs to 298 » LEGAL THEORY OF NON-ESTABLISHED CHURCHES. the civil courts, to the effect, in the first instance, of ascertaining whether they involve civil rights; and, in the next place, if they do, of vindicat- ing or giving redress for the violation of these rights; and, although every human tribunal must be fallible, history has shown that nowhere else can these powers be so safely lodged. Rightly viewed, they are, in us, not powers, but duties which, when required by any of her Majesty’s subjects, be their religion what it may, we have no choice but to per- form.” NOTE G. THE CARDROSS CASE—THIRD JUDGMENT. On 9th July 1862, this case was advised for the third time, nominally upon issues reported by Lord Jerviswoode, to which the Church defend- _ ing wholly objected ; but the Court took the opportunity of reviewing the whole case and hearing counsel, especially upon the question whether parties were well called. Lord Colonsay, President, explained the grounds on which he thought the whole action should be thrown out :— “ The action is directed against the General Assembly of the religious denomination calling themselves the Free Church of Scotland, and the Rey. Dr A. Beith, the moderator, and the Rey. P. Clason and the Rev. Sir H. Moncreiff, both residing in Edinburgh, the Assembly’s clerks, as representing the General Assembly. Iam of opinion that it is not com- petent so to convene that body or aggregate of persons in an action of damages. They are not a corporation ; they are not a joint-stock com- pany, that are to be sued by their office-bearers. They are a certain selected number of the members of a voluntary association—members chosen and assembled according to the rules of the association—to trans- act a certain part of its business, and then to be dissolved. It was said that they met as a court, and in their collective and gwasz judicial char- acter did the wrong complained of ; but it does not from thence follow that in their collective capacity they can be convened in an action, and subjected in damages. There is nothing on the record to show who were the individuals composing the body, or composing the alleged majority in the division which is said to have taken place. There is nothing to show who were the doers of the wrong that is complained of. The wrong—I mean the wrong inferring lability for damages—if done at all, was done by the members of the body who voted for and carried the sentence com- plained of as having caused injury. For these reasons I am of opinion that the conclusion for damages cannot be insisted in, and that no issue for damages should be allowed in reference to the matter involved in the first action in which the General Assembly are the only defenders. There is no record to show a case as against any person whatever. It is against APPENDIX. 299 that body such as I have described it. Now, if the conclusion for dam- ages cannot be insisted in or sent to trial, the only other conclusions in that action would be the reductive conclusions. In regard to these con- clusions, I am of opinion that, if dissevered from the demand for damages, they cannot in this action be proceeded with as separate and independent conclusions. I form this opinion upon the same grounds on which I formerly tested my opinion that the reductive conclusions were compe- tently and fitly coupled with the demand for damages. It was not main- tained by the pursuer, and certainly not stated by the Court, that these conclusions were to be read and construed in the widest sense which the language of them can upon any reading admit of—that they could be read as extending to anything but civil consequences. They must be read with reference to the action in which they occur, and with reference to the demand which the pursuer is making for redress in that action on account of a civil wrong. The redress which he is here asking is dam- ages ; the party from whom he is asking that redress is the General Assembly. He is not asking to have it declared that he is still entitled to the emoluments of his former offices; the proper parties to resist any such demand are not here. It is not alleged that the stipend was payable by the General Assembly. The demand here is a demand for damages against the General Assembly. The Assembly have no interest in this action; they are not the proper parties for that demand ; and the parties who might have an interest in supporting the sentence, as against another demand, are not here. I therefore read these conclusions for reduction as auxiliary to the demand for redress which the action contains, and as proper and fit to be there, in case the sentences should be set up as a bar to the demand, and to give the power to sweep them out of the way, so far as they could in any view be construed as an impediment to getting at once to that demand. But I read them with reference to that demand. I read the summons as showing the purpose for which they are there. They are there as auxiliary to the demand for damages; and being of opinion that the demand for damages cannot be maintained under this action, I am of opinion that these conclusions, which are auxiliary to that demand—and which are only there for the purpose of enabling the party to get at that demand without impediment, and with reference to the parties entitled to resist that demand for damages—cannot be main- tained either.” While thus dismissing the action on the ground of form, his lordship indicates his opinion on what is probably the most important practical point embraced in it :— “There is another view of the matter which might lead to the same result, though upon other grounds, and it is this: The matter with which the General Assembly were dealing, as I have already observed, was a matter which had been brought before the presbytery. It was compe- tently before the presbytery. The presbytery is a tribunal which exists by the rules of this voluntary association, and is capable of dealing with such matters; and the parties had voluntarily submitted themselves to 300 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. it. They erected that tribunal for the determination of questions which might be raised in reference to them, and it is not’contended that the tribunal of the presbytery had no power to pronounce such a sentence upon the matter submitted to them. The synod and the General Assem- bly are also tribunals which the parties have reared up for the govern- ment of their own affairs, and for the discipline of their own Church. The matter which was dealt with here was a matter which came before them as acting as a quas? court or tribunal, so constituted by the volun- tary act of the parties concerned. If they had refused to entertain ques- tions such as were fit to be entertained, and proper to be entertained before them, as between the parties, and to decide them, they would have been refusing to perform the duty which the members of the Free Church were entitled to expect to be performed at their hands. The matter which they were so asked to deal with was a matter on which they were to adjudicate. It is contended that the matter which they did adjudicate upon—the guilt or innocence of the party of certain charges—was not competently before them, and, therefore, that they were beyond their power ; but they were bound to adjudicate upon this question whether it was competently before them or not. Ido not mean to say that, by dealing with that question in a wrong way, the members who do so may not subject themselves to damages ; but when they are required by the parties to exercise a judgment—when they are placed by the parties in a position in which they are to exercise a judgment in reference to a ques- tionable matter or mode of proceeding, as to a subject which the Church courts can entertain—till I hear something more, I am disposed to think that, with reference to such a question, in maintaining that they had gone wrong, it would require to be alleged that, in coming to the decision at which they arrived, they were actuated by malice. But I do not think that question is necessary for the disposal of this action.” Lord Curriehill speaks more fully upon the same important point :— “ What, then, is the redress which the pursuer is actually claiming by this action? He asks a decree for payment of a sum of £500, in repara- tion of the loss and damage which, as he alleges, he has sustained by having been irregularly deprived of these emoluments. And the ques- tion is, Whether the pursuer’s allegations in the record, even assuming all of them to be true, would be relevant to support that claim? Iam of opinion that this question must be answered in the negative. The ground of this opinion is, that parties upon whom judicial functions are lawfully conferred, and who, in the bona fide exercise of these functions over parties subject to their authority, fall into errors in judgment, are not liable in damages to these parties in consequence of such errors. Humanum est errare. Infallibility of judgment is attainable by no man, however laboriously and conscientiously he may exert his powers to do what is right ; and if, notwithstanding a judge’s best and bona fide en- deavours to do so, he should be liable in damages for errors into which he might fall, such offices would be shunned by those best qualified for performing their functiéns. But such functionaries have an immunity APPENDIX. 301 from liability for errors in judgment, unless their errors arise from cor- ruption or malice, The law unquestionably confers such an immunity upon judges officiating in the public judicial institutions of the country, whether civil, criminal, or ecclesiastical, upon whom jurisdiction is confer- red by the State. It also extends such immunity to private persons upon whom parties, by voluntary agreement, confer authority to adjudicate in certain matters among themselves—it being the policy of our law to en- courage and support the settlement of disputes by such private arrange- ments. This is exemplified by the support which is afforded to arbitra- tions. It is likewise illustrated by those conditions which are often in- serted in mutual contracts, to the effect that disputes which may arise among the contracting parties as to the subjects of their contracts shall be adjudicated upon by parties therein appointed for that purpose. Such arbitrators are not liable in damages to the contracting parties for errors of judgment into which they may happen to fall in the bona fide exercise of the functions so conferred upon them. In like manner, when volun- tary associations, constituted for religious purposes, confer upon some of their own members authority to adjudicate among them in certain mat- ters, the law extends to the persons so appointed immunity from claims of damages, on the part of members of their respective associations, for errors into which these functionaries may fall in the bona jide exercise of the authority so intrusted to‘them. They enjoy such immunity, not because such functionaries become invested with any superhuman autho- rity in addition to that which they derive from the members of their own associations, but because these members, by voluntarily conferring such judicial authority upon them, are held to confer upon them likewise the privilege which the law itself attaches to the bona jide exercise of judicial functions. This is a principle which is of great importance in this coun- try, as, in my opinion, it enters into the constitution of most, if not all, of the voluntary religious associations which have been formed in Scot- land under the protection of the Toleration Acts. And, accordingly, effect has often been given to this principle in questions which have arisen between individual members or office-bearers of such associations, and those whom they had voluntarily invested with such judicial authority. For example, in the case of Auchincloss, 6th March 1793 (Hume, 595), a presbytery of the association which was denominated the Associate Burghers having deposed one of its ministers on a charge of licentious conduct, he sued some of the members of the presbytery for damages on the ground of the allegation being false ; but he did not allege that the charge had been made maliciously. It was held ‘that the defenders were answerable, if it could be shown that, though made in a judicial form, the charge against the pursuer was truly a calumny, and was made and prosecuted in a malicious spirit ; but all agreed in thinking that the pursuer had not condescended relevantly.’ In the case of Smith v. Grieve, 18th February 1808 (Hume, 637), a member of the association called Bereans sued some other members of the congregation (which, according to the constitution of that body, was intrusted with such judicial authority) 302 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. for damages for defamatory language used by them in a congregational inquiry as to some charges against him. It was held that they ‘ were not liable for anything which has passed judicially in some measure at the meetings of the congregation according to the rules and usages of the Berean Society.’ And in the case of Edwards, 28th June 1850 (12 D. 1134), the principle was recognised in opinions delivered by the Court (although the ultimate judgment was rested on other matters) in reference to a claim of damages made by a member of a vestry in an Episcopalian association against the other members for a defamatory sentence of that body, notwithstanding a reversal of that sentence by the bishop as having been ultra vires of the vestry, These cases exemplify the operation of the principle that tribunals upon which, by the constitution of such voluntary associations, judicial authority over its individual members and ministers is conferred are not liable in damages to them for what may be done in bona fide by these tribunals in the exercise of such judicial functions; and, in accordance with that principle, I am of opinion that in the present case the defenders, who were intrusted by the pursuer and the other members of the association with such authority, would not be liable to him in damages for what they did in the exercise of that autho- rity, even were it true that they fell into an error to the extent alleged by him, since he does not accuse them Of having acted maliciously and without probable cause. “The pursuer, however, maintains that the defenders are not entitled to that immunity, because to some extent it was wltra vires of them to pronounce the sentence complained of, in consequence of the alleged irregularity in the proceeding. But assuming, as must be done in this question of relevancy, that there was such an irregularity in the proce- dure, still, according to the pursuer’s own statements in the record, the error imputed to them as to the extent of their powers would have been merely an error in judgment in the bona jide exercise of their judicial authority. “But I must here guard against any misconception as to what would be the legal effect in other respects of such a transgression of their powers as is imputed to the defenders. The conditions of the constitution of such voluntary associations are as binding upon the functionaries to which the members intrust such judicial authority, as they are upon the members themselves ; and the latter are not bound by such proceedings of the former as are beyond the limits of the powers conferred upon them by the constitution. It was upon this ground the Court, in the former stages of this case, repelled the plea of the defenders, that their sentence, even supposing it to have been beyond their powers, precluded us from even entering upon the consideration of the pursuer’s claims; and although that line of pleading is not now persisted in, and we are now disposing of these claims of damages on their own merits, I do not say that the allegation of the sentence having been w/tra vires of the Assem- bly would not have been relevant to support a claim for redress of a different kind, For example, were a claim made by the pursuer against APPENDIX. 303 the administrators of the funds and subjects from which the patrimonial emoluments are derived, and were the sentence in question pleaded as a bar to such a claim, I do not say that the alleged nullity of the sentence would not have been relevant to support a claim for redress of that kind. A claim for redress of that kind would depend upon principles quite different from those which regulate such a claim of damages as we are now considering ; and I reserve my opinion upon any such case until it shall actually occur. In many cases, judgments pronounced by Sheriffs, Justices of the Peace, and others, in contravention of conditions of statutes under which they were acting, have been set aside as incompe- ‘tent, even although the statutes have declared their judgment not to be subject to review; and the rights of parties against whom such sentences were pronounced have been found to remain unaffected by such judg- ments, and yet the judges by whom they were pronounced were not liable in damages. So also arbiters, if they pronounce awards which are wltra vires compromissi, are not liable in damages if they acted purely, although their awards may be found to be null and ineffectual against the parties,” Lord Deas dissented from the judgment, on the ground that “ it is not a sufficient objection to the competency of a reduction that the damages are not claimed in the same action, or that, being claimed, the conclu- sions for these damages are ill laid, and are either abandoned or fall to be dismissed,” NOTE H. MR FORBES ¥. THE SCOTTISH EPISCOPAL SYNOD, 1866. The Rev. Mr Forbes v. Dr Eden and Others, Members of the Gen- eral Synod of the Episcopal Church in Scotland held in 1862 and 1863. This is an action of reduction of the new Canons, in so far as specified in the summons ; with farther conclusions that, whether they were reduced or not, the alterations upon the Canons formerly existing in this Church should be declared ultra vires of the defenders, and the pursuer declared free from them ; and also with certain petitory conclusions, (The effect of the alterations may be roughly stated to be to authorise the use of the English Communion Office in any congregation of the body which prefers it to the Scottish Office.) But the nature of the action is sufficiently stated in the Lord Ordinary’s note to his interlocutor of 18th March 1865, finding that the pursuer’s statements “are not relevant or sufficient in law to support the conclusions of the action.” His lordship (Lord Barcaple) says :— “ This case differs materially from others of a somewhat similar kind that have been before the Court. The action is brought by the pur- 304 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. suer as an ordained clergyman of ‘the religious denomination known as the Episcopal Church in Scotland,’ and minister of the Scotch Epis- copal congregation, Burntisland. It is directed against the bishops and a large body of the clergy of that Church, as members of a General Synod of the Church held in 1862 and 1863, and as individuals. The leading conclusion of the action is for reduction of certain portions of a Code of Canons of the Episcopal Church in Scotland, enacted in 1863 by the General Synod before mentioned. There are also conclusions for declarator—jirst, that it was ultra vires of the General Synod to alter, amend, or abrogate any of the Canons contained in a previous code enacted in 1838, orto make new Canons, except in conformity with the constitu- tion which was recognised, and the practice which’ was acknowledged, at the time of the pursuer’s ordination, and set forth in the Code of Canons of 1838, which was then subscribed by him; and, secondly, ‘ that the pursuer is entitled to celebrate divine worship, and all the other services, and to administer the sacraments and all other rites of the said Church, in conformity with the Canons of 1838, and is entitled to the free exercise and enjoyment of all the privileges conferred on him under these Canons, or under the deed of institution in his favour. The summons finally con- tains pecuniary conclusions against the defenders, conjunctly and sever- ally, or severally and respectively. There is first the sum of £120 con- cluded for, as the amount paid by the pursuer to the Reverend Mr Wil- kinson for his services as curate, of which the pursuer was deprived through the wrongous refusal of a licence to. Mr Wilkinson. There is finally the sum of £200, concluded for generally as damages and solatiwm for the loss and injury which the pursuer has sustained patrimonially, and in his health and feelings, by the wrongous refusal to license his curate. This refusal is alleged, and indeed admitted, to have been caused by the curate declining to sign the Canons. It thus appears that the whole mat- ters as to which the pursuer seeks a remedy, either consist in or arise out of the enactment of the Canons of 1863, in so far as they alter the Canons of 1838 in a way not in conformity with the consitution and practice of the Church, Both sets of Canons are referred to by the pursuer, and made part of his case. “The peculiarity of the case is, that the pursuer does not merely ask redress against an invasion of his rights, which he alleges to have taken place in consequence of the enactment of these Canons, and under their authority, but he complains of the Canons, and seeks to have them set aside by the Court, as being in themselves, and by their mere enactment, a wrong done to him. In short, he maintains that he acquired such a jus qgueesitum in the Canons of 1838, which were in existence when he was ordained, and in the constitution of the Church as fixed by them, that he is entitled, as a matter of civil right, to prevent them being altered by the Synod, except in so far as the alterations may be consistent with the re- cognised constitution and acknowledged practice of the Church. It may be that the reductive and declaratory conclusions are also intended to prepare the way for the conclusions for damages. But as the Lord Ordi- APPENDIX. 305 nary reads the record, and as he understood the argument for the pursuer, the more important complaint made against the Canons, for which redress is sought in this action, is, that they are in themselves, and irrespective of anything that may have followed upon them, a wrong done to the pur- suer of such a kind that he is entitled to be protected against it by a court of law. “Tt may be more convenient to consider, in the first place, whether the pursuer has stated a relevant case of injury inferring damages against the defenders by the wrongous refusal to license his curate. It appears to the Lord Ordinary that, on principles altogether apart from the ecclesiastical origin of the cause, this part of the pursuer’s case is clearly irrelevant.” After stating these reasons, the conclusion is drawn :— “Tf the case is irrelevant as regards the conclusions for damages, the existence of these conclusions cannot aid the relevancy of the case stated by the pursuer for redress against the new Canons by reduction and declarator, which must therefore be considered upon its own merits. “The defenders do not raise any question either as to the jurisdiction of the Court or the competency of the action. They maintain that, upon his own showing, the pursuer has not a good case in law for any of the remedies which he seeks. On the other hand, the pursuer does not main- tain that he can ask the Court to interfere with, or even inquire into, the Canons of his Church, except for the purpose of giving him redress in a matter of civil right. The peculiarity of his case, apart from the claim for damages, is, that the civil right, which he alleges to have been illegally invaded, is his right to insist that the Canons of 1838 shall not be altered except in conformity with the recognised constitution and acknowledged practice of the Church ; and that the wrong which he seeks to have re- dressed is the adoption and continued existence upon the Statute-book of the Church of the Canons which were enacted in 1863. This is a case very different, as it appears to the Lord Ordinary, from any of the same class which have been hitherto insisted in.” The peculiarity of this case, and the grounds on which it is rejected, are put in the following passage :— “The pursuer admits that he can only seek redress for a civil wrong ; and the wrong of which he is here complaining is the enactment and sub- sistence of the altered Canons which he asks leave to set aside by the Court. He does not dispute that the General Synod was competent, by the laws of the Church, to alter and enact Canons, Indeed, he refers to Canon 33 of 1838, which enacts that a General Synod ‘ has the undoubted power to alter, amend, and abrogate the Canons in force, and to make new Canons,’ which ‘ being in conformity with the recognised constitution and acknowledged practice’ of the Church, shall bind all its members. The Canons, therefore, which the Court is asked to treat as being in themselves, by their mere enactment, a civil wrong done to the pursuer, and on that ground to set aside, are internal regulations, enacted by the proper autho- rity, in regard solely to the ecclesiastical and spiritual affairs of the Church itself. The Lord Ordinary does not know of any similar demand having U 306 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. hitherto been made for the intervention of a court of law in matters touching the faith and discipline of a religious denomination. There is not here any violation of statutory duties and rights, as in the Auchter- arder case. Neither is there the alleged perversion of property from its destined use, as in Craigdallie v. Aikman, 1 Dow, 1 and 2 Bligh, 529 ; Smith v. Galbraith, 6 June 1839, F.C. ; and Attorney-General v. Pearson, 7 Simon, 290; and the case of Lady Henley’s charity, 2b. p. 309. Nor is there the allegation of direct patrimonial injury done by an ecclesiastical body acting illegally, as in the case of Macmillan v. the Free Church, 23 D. 1314; or of injury by libellous matter contained in an ecclesiastical sen- tence, as in Dunbar v. Skinner, 11 D. 945. In all these cases it was not only alleged that the ecclesiastical body or its office-bearers had violated the law or constitution of the Church, but a direct and substantive patrimonial injury was alleged to have been inflicted on the party seeking redress. “ It appears to the Lord Ordinary that the present action proceeds upon a fallacious view of principles, which have been recognised in these cases, and of dicta which had reference only to the questions then under con- sideration. When, in defence against an action on account of something done by an ecclesiastical body, it was pleaded that the matter, being eccle- siastical, was solely for the determination of that body itself, it was effec- tually replied that that was an assertion of exclusive power of jurisdiction, which could only rest upon contract, and that the contract was to be found, if anywhere, in the constitution and laws of the Church. In the discussion which thus arose, the constitution and laws of the Church came to be referred to as ‘the contract’ upon which the question turned, and most correctly ; for by reference to them the question of jurisdiction, or of the legality of the proceeding complained of, was to be determined. The fallacy of the present action appears to the Lord Ordinary to be, that the pursuer treats the Canons of his Church as if they were primarily and by their main intention a contract between the members of the Church. Taking this view, he complains that the terms of his contract have been changed without his authority, and to his injury. Analogies are brought forward drawn from other associations, formed for entirely different pur- poses, and having nothing equivalent either to the authority which is vested in synods and other ecclesiastical bodies, or to the regulations for the doctrine and internal government of a Church. And the Court is asked to deal with the Canons of a Church as they are from time to time enacted by the proper authority, as if they were nothing else than at- tempted modifications of the contract between the members of an associa- tion for ordinary civil purposes. This is, as the Lord Ordinary thinks, altogether a fallacious view, and quite unwarranted by the authorities referred to. The Canons of a Church are not enacted for the purpose of constituting a contract, but to establish and regulate its doctrine and dis- cipline. The contract, in the sense in which that expression is important in these discussions, may or may not be embodied in the Canons. They are only to be looked at as giving evidence, more or less complete, in re- gard to it. For that purpose the Canons of the pursuer’s Church of 1838 APPENDIX. 307 are as available now as ever they were. If the pursuer can show that he has suffered patrimonial injury by the violation of any civil right which he possessed under them, the enactment of altered Canons in 1863 will not deprive him of his legal remedy. But it is new, and, as the Lord Or- dinary thinks, contrary to all the principles which have been recognised in this class of cases, that the Court should be asked to interfere with the Canons of a Church, and that not for the purpose of protecting a party from injury done to him under their authority, but merely to relieve him from what he considers to be the civil wrong done to him by their enactment and subsistence.” None of the civil evils threatened by the change, it is remarked by the Lord Ordinary, have as yet come upon the pursuer. When they do, it will be time to try what is the constitution or contract of the Church, In the mean time,— “ By the declaratory conclusions, the Court is called upon to deal with the Canons of 1863, by declaring, first, that it was wltra vires of the Gen- eral Synod to enact them ; and, secondly, that the pursuer is entitled to perform his functions as a clergyman in conformity with the Canons of 1838. This is just asking the Court to regulate the internal affairs of this Church in regard to the matters as to which the pursuer alleges that the two sets of Canons differ—the more important of which are alleged by him to relate directly to questions of doctrine. Into matters of this kind courts of law have always refused to inquire, except for the purpose of vindicat- ing a civil right or protecting against a civil wrong. Even in that case the courts have never given the remedy by altering or setting aside proceed- ings taken by the ecclesiastical authorities within their proper province, and least of all by making or unmaking regulations for the doctrine or discipline of the Church. The pursuer, indeed, does not ask the Court to pronounce as to the theological soundness of the doctrines in question, but only as to whether they are not now brought in as an innovation. But civil courts do not undertake to protect Churches, or individual mem- bers of Churches, from the influx of new doctrines. They only interfere to prevent the uses of property being perverted through its being retained by a majority who only keep the name, while they have abandoned the principles, of the Church to which it was devoted. The proposal to give such a remedy as is here asked, against the Canons regarding the powers of the bishops to establish missions, and the power of General Synods to make and alter Canons, may appear less startling, because they are not strictly matters of theological doctrine, though they are not less polemical for that reason. But the Court will as little interfere to impose upon a dissenting body immutability of Church government as immutability of doctrine ; while in either case it will protect property from being diverted, or persons from being injured, by the consequences of changes on doctrine or constitution.” The Second Division advised the case on the 8th December 1865. Tue Lorp Justice-CLERK said :— 308 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. “The pursuer, who describes himself as ‘a clergyman of the religious denomination known as the Episcopal Church in Scotland,’ and ‘ minister of the Scottish Episcopal congregation at Burntisland,’ brings this action against a large number of persons who are also clergymen belonging to the same communion, and several of them holding the office of bishop in that communion, all as members of a General Synod of the body held at Edinburgh in the end of 1862 and beginning of 1863. ‘“‘ His complaint against them is that, in making certain alterations on the Code of Canons, they have violated the constitution of the religious body to which both parties belong, and have thus committed a breach of contract. “He alleges further, that he cannot conscientiously obey or conform to the new and altered code, and, as by that altered code itself he is taken bound to do so under heavy penalties, including degradation from the office, functions, and character of a clergyman, he has a material interest, personal and patrimonial, to challenge the legality of the alterations complained of, and to seek the protection of the law against their enforce- ment. “To the general relevancy of such an action it does not appear to me that any good objection can be stated. “Tf a society, whether for secular or religious purposes, is bound to- gether by articles of constitution, and an attempt is made to alter any fundamental article of the constitution, the general rule of law undoubt- edly is, that the majority may be restrained, on the application of the minority, from carrying the alteration into effect. The rule may be illus- trated by an example which comes readily to hand. This religious body effected a union with various congregations of English Episcopalians on the footing of taking the Thirty-nine Articles of the Church of England as their formulary and standard of faith and doctrine. They might never- theless now propose to abrogate that standard, and revert to the Confes- sion of Faith originally prepared by Knox and the other early Reformers, and sanctioned by Parliament in 1567, which was their only standard or formulary (if they had any except the Apostles’ Creed) during the eighteenth century. The whole body would have power to make the change, if they were unanimous (though they might thereby individually lose some sta- tutory privileges). But a majority, I apprehend, would have no power to do so against the wishes of a minority, however small. Again, if the Synod, whose acts are here complained of, had passed an ordinance pro- hibiting the use of all set forms of prayer, the result would be the same. If all the members of the communion agreed or acquiesced, the change would be perfectly lawful ; but any one having sufficient interest might complain of it as a breach of contract, because in this communion it seems to be a fundamental article of the constitution, since 1811 at least, that set forms of prayer shall be used in public worship, and in the administration of the sacraments. “There may no doubt be breaches of contract where the party com- plaining has no such interest to enforce the contract as can be recognised APPENDIX. 309 by a court of law. Thus an association may be formed for mere sport or amusement, which every member is at liberty to leave as soon as he feels inclined, and which he can leave without any pecuniary loss. In such a case the law will not interfere. And though the subject-matter of this contract be as far removed as possible from sport or amusement, still, if the complaint here were at the instance of a mere lay member of the Scot- tish Episcopal communion, his interest and title to defend the constitution of the society might be seriously questioned ; for he would be met with the ready answer, that as soon as the practice of the religious body became disagreeable to him he was at liberty to bring his connection with it to an end. “Tt may seem that the distinction between a lay and clerical member of such a voluntary association is scarcely so substantial as to justify giving to the one and refusing to the other a legal title to complain of any Violation of the fundamental articles of association. But there are some weighty considerations which support such a distinction. “The possession of a particular status, meaning by that term the capa- city to perform certain functions or to hold certain offices, is a thing which the law recognises as a patrimonial interest ; and no one can be deprived of its possession by the unauthorised or illegal act of another without having a legal remedy. “The position of a minister or clergyman in a dissenting communion differs, no doubt, from that of a minister of the Established Church, and from that of a member of any of the law or medical corporations, inas- much as he has no legal or recognised status. But it is beyond question, that where a religious society embraces a numerous and wealthy section of the community, the position of a minister of religion in that society is an object for the attainment of which men are specially educated at con- siderable cost, and for the sake of which they throw away, it may be, other and more profitable prospects. When, therefore, one has, by com- -petent authority, been ordained a minister in such a communion, I hesi- tate to come to the conclusion that he has not obtained something which is of appreciable value, even according to the vulgar standard of money. “Tf, therefore, the pursuer can show that he became a minister in the Episcopal communion under one law, and now finds himself, by the pro- ceedings of the defenders, under a new law, the enactment of which is a breach of the fundamental constitution of the society which he cannot conscientiously obey, and which, if he disobey, he is liable to be deprived of his position as a minister, and of the character impressed on him by his ordination, I am not prepared at once to say that he is without legal remedy. That he has not yet been challenged for his disobedience to the new law, and has suffered no actual injury, seems to me of little import- ance. If he can satisfy the Court that injury is surely impending, he is as much entitled to the exercise of preventive justice to stop the infliction of a wrong, as he is to reparation when the wrong has been done and the injury suffered. “ Holding these views as to the general nature of the case before us, I 310 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. hesitate to adopt the course of reasoning in the note of the Lord Ordinary, and to give judgment against the pursuer solely or mainly on the ground that he has no sufficient title and interest to sue, apart from a full con- sideration of the grounds of his complaint on its merits. I think we can scarcely do justice between the parties in this case unless we carefully consider what are the terms of the contract alleged to subsist between them, and what are the alleged breaches of that contract.” His lordship accordingly went on to point out that there had heen no change in point of fact from the old standard, because in point of fact no fixed and accurate formulary had been appointed before. Lorp Cowan also agreed with the Lord Ordinary’s judgment on the matter of fact ; but, unlike the Lord Justice-Clerk, approved of it also on the general ground of law :— “The first inquiry to which I have directed my attention, in advising the lengthened and able argument addressed to us in this case, regards the extent to which the Court is called on to deal judicially with the import- ant questions that have been argued. And the more consideration I have given to the case, I have become the more satisfied with the manner in which it has been disposed of by the Lord Ordinary, and with the grounds of judgment on which his lordship has proceeded, as these are explained in the note to his interlocutor. “Both parties concur in the statement, that no point affecting the jurisdiction of the Court to entertain this action has been raised ; and I am willing so to view the case; but while making this admission, the defenders state in their record, that, ‘ having regard to the subjects and terms of the Canons which are complained of, they respectfully maintain that the Canons are not liable to be reduced by this Court.’ This state- ment appears to me to suggest very important matter for consideration, which requires to be disposed of at the outset. For on the same grounds that the reductive conclusions are thus objected to, the competency of a judgment on the declaratory conclusions of the summons, in the general terms in which they are expressed, may be challenged. These conclusions are twofold: (1.) That it was and is wltra vires of the Synod of this Church to alter, amend, or abrogate any of the Canons contained in the Code of 1838, or to make new Canons, except in so far as in conformity with the constitution and acknowledged practice of the Church at the time of the pursuer’s ordination as a minister ; and (2.) That the pursuer is entitled to celebrate divine worship and to administer sacraments in conformity with the Canons of 1838, and is entitled to the free exercise and enjoyment of all the privileges conferred on him by these Canons, and under the deed instituting him to be minister of the Episcopal congregation of Burntisland. These are very wide conclusions, and, as I apprehend, could be entertained in this Court for judgment only if the Canons themselves, to which the pursuer objects, could be competently reduced. For, assuming the Code of 1863 to be left the standing law of the Church, it is impossible to see how on any good ground the Court could be called on to declare either APPENDIX. 311 that the alterations it makes on the prior Code of 1838 are wltra vires and inoperative, or that the pursuer is entitled to continue a minister of the Scotch Episcopal Church on the footing of the law of the Church being the abrogated Code of 1838. “T cannot but regard it as an entire novelty to ask courts of law to determine whether the ruling judicatory of a voluntary Church acted within its powers in matters so purely and exclusively relating to the government of the body as a Church, its doctrine, and discipline. It surely could not be pretended that any one of the laity of the Church, connected with it only as in the enjoyment of its ordinances, could thus evoke the jurisdiction of the civil court. When the ecclesiastical governing body has recognised changes either in doctrinal matters or in the rights and ceremonies of the Church, dissentient laymen may leave its communion. Their remedy cannot be to bring the resolutions of the Church judicatory into a court of law, as a court of review. Some civil wrong justifying a demand for redress, or some patrimonial injury entitling the party to claim damages, must be alleged and instructed, ere the civil court enter- tain and adjudicate in such cases, This is the principle which pervades the whole of the cases of this class. And it leads directly to the solution of what I have ventured to state is the primary inquiry under this record. Has the pursuer set forth that, by and through the synodical acts of which he complains, he has suffered civil wrong or patrimonial injury, to sup- port and justify his demand on the civil court to investigate and adjudi- cate upon those acts of this spiritual court in matters ecclesiastical and connected with the government of their Church, as in themselves right or wrong, or as within or beyond the powers of the Synod ?” Farther on, Lord Cowan says :— “(1.) The first point resolves into the question, Whether there is a title in every presbyter of the Church, as matter of contract, to evoke the jurisdiction of the civil court to set aside and overrule any alleged departure from the doctrine and discipline subsisting in the Church at the time of his entering on his office, which the constituted authorities may at some future period consider it expedient to enact? To affirm this proposition in the abstract, and irrespective of alleged patrimonial injury to be re- dressed, would, I apprehend, be as inconsistent with sound principle as it is unsanctioned by any precedent. The Court will not take notice of re- ligious opinions with a view to decide whether they are right or wrong, or whether regulations for the internal administration and discipline of a religious body have been rightly and properly adopted ; but it will notice them as facts pointing out the ownership of property, or as supporting a claim for civil redress for civil wrong. Nor does the dictum of Lord Eldon, C. (1 Dow, 16), lose its force by asserting that in the new regula- tions and declaration of doctrines there is a departure from the old prin- ciples to which some of the body may still tenaciously adhere. When no patrimonial right is to be settled, or no injury patrimonially to be re- dressed, it is vain for dissentients to plead breach of contract with them on the part of the ruling authorities within the Church. It is the pro- 312 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. vince of the civil courts to redress civil wrongs. It is not their province, and has not been their practice, to interfere as courts of review with the theological dogma, or the internal regulations or discipline of religious sects or denominations. And it would be a strange utterance from this Court to pronounce a judgment in terms of the reductive or declaratory conclusions of the summons. The Lord Ordinary has, in my opinion, justly observed on this part of the case, that the fallacy of the pursuer’s action lies in his treating ‘the Canons of his Church as if they were primarily, and by their main intention, a contract between the members of the Church ;’ whereas ‘the Canons of a Church are not enacted for the purpose of constituting a contract, but to establish and regulate its doc- trine and discipline.” Taking this view, as there is no civil wrong or injury to redress arising out of the alleged breach of contract, the demand for judicial investigation and for a decerniture to the effect concluded for is not one which this Court will sanction. “(2.) Entertaining this view, on the first aspect of the plea under con- sideration, I might leave the case to be decided on the grounds which have been fully noticed, and as the Lord Ordinary has done. But in justice to the parties I feel that I ought to advert shortly to the other aspect in which this plea may be considered—its sufficiency, viz., to support the summons, having regard to the allegations in the record bearing on the question whether the changes were or were not in the power of the Synod by which the Code of 1863 was sanctioned.” Lorp BENHOLME stated that he was “clear for adhering to the Lord Ordinary’s interlocutor,” but the grounds stated by his lordship are those more special ones to which the Lord Justice-Clerk had confined himself. He sums up the argument of the defenders to the following effect :— “The doctrines of this Church are not to be found set forth and de- fined either in the English Office or the Scotch Office. These Offices, being both either sanctioned or permitted by the Canons of the Church, must be held both of them to be consistent with the doctrines of the Church as to the solemn subject to which they relate; but they cannot be considered as creeds, or as exclusive expositions of doctrinal truth. The differences in point of form and expression between them may well give rise to a preference for the one or the other amongst the different members of the Church. But, except as matter of mere inference, in deducing which minds of different character will necessarily disagree, no specific or distinctive doctrines can be deduced from them. It is quite otherwise with the Articles of the Church of England, which are sub- scribed as the basis of doctrine by all clergymen of the Episcopal Church in Scotland. These Articles have been subscribed by the pursuer; and the 28th, 29th, 30th, and 31st Articles state in definite terms the doc- trines of both Churches on the subject of the holy communion.” Lorp NEAVES gives a very interesting historical review of the career of the Scottish Episcopal Church, in respect especially of its creed and APPENDIX. 313 formularies, and agrees with all the other judges in the result bearing on this case. On the general question as to which we have given extracts he expresses hesitation :— “With regard to the reductive and declaratory conclusions, the Lord Ordinary seems to me to rest his judgment upon the ground mainly that the questions raised relate to an ecclesiastical matter which involves no civil right, Ido not say that the Lord Ordinary’s views in this respect are erroneous. On the contrary, I concur in them generally. But there is one aspect of the case on which I entertain some doubt, and would wish to reserve my opinion. Suppose it could be held that the pursuer, as he alleges, was placed by the Canons complained of in imminent peril of being deprived of, or degraded from his orders, I am not satisfied that that may not involve a matter of civil injury from which the pursuer might seek protection. If, contrary to the Canons and to the contract with him, the pursuer was threatened with the immediate prospect of degradation, there seems to me to be room for considering whether the possession of holy orders, and the loss of them through a wrongful act, do not involve privileges and capabilities that may infer civil or patri- monial consequences. Clerical orders conferred by a non-established Church may have little or no civil effect in this part of the island. But they may possibly confer benefits elsewhere which may entitle the pur- suer to have them preserved by the interference of a civil court. The pursuer may not be in a situation personally to urge this plea, or his complaints may be groundless, or his action premature, or not directed against the proper parties; but at present I should hesitate to throw it out on the mere ground that it involved no civil interest. It was sug- gested at the Bar that the pursuer’s orders could not be taken away. But this is a mistake. The Church that confers orders can take them away, and the new Canons contemplate the exercise of this power. The ground on which I am prepared, without difficulty, to adhere to the Lord Ordi- nary’s interlocutor, is that the pursuer has not shown any excess of powers in the acts of the defenders, or any contract of which they have committed a breach.” NOTE H. FORBES v. EDEN. DECISION BY THE HOUSE OF LORDS. This case was pleaded at the bar of the House of Lords at great length by the reverend appellant personally; and judgment was pronounced on the 11th April 1867, confirming the decision of the Court below, and dismissing the appeal with costs. .I am indebted to the courtesy of the pursuer’s agent, Mr Peacock, for an early perusal of the shorthand 514. LEGAL THEORY OF NON-ESTABLISHED CHURCHES. report of the opinions delivered by the judges present,—the Lord Chan- cellor (formerly Sir Frederick Thesiger), Lord Cranworth, and Lord Colonsay. Those parts of the speeches which relate to the general ques- tion, in which all Churches have a common interest, are given in full below. The views expressed in this last utterance of the supreme tribunal of the law of Scotland are interesting and important; but they postpone rather than solve some grave questions. The Court, it is decided, will not deal with merely doctrinal or abstract questions, nor will they inter- fere with Church actions at all, unless it is alleged that civil injuries have been already suffered, or civil—+. e., patrimonial—rights have been already interfered with. But when such results have emerged, all the judges agree that the jurisdiction of the civil court is cleared, and that it will entertain the question whether the Church act in question was competent. But even in such a case (e. g., in the “ alleged perversion of property from its destined use” by a change of doctrine), the question of competency may not be an easy one, and we may be only at the threshold of the real difficulty. The Court may have to deal with the question, What are “the fundamental doctrines or articles of faith upon which the constitution of a religious community depends,” as opposed, not only to matters of order and discipline (as the Lord Chancellor puts it), but to minor matters of opinion? And still more, it may have to deal, as the speech of Lord Cranworth (concurred in by Lord Colonsay) very strikingly suggests, with an essential power of change in the governing body of the Church—a power of change which there seems no authority for con- fining to the region of Church practice. The recital or preamble of the Code of Canons of the Scottish Epis- copal Church (referred to especially by Lord Colonsay) does indeed give great prominence to the distinction between doctrine and discipline, and this came to be of much importance in this case. This preface, retained in the new Code as well as the old, says,— “The doctrine of the Church, as founded on the authority of the Scrip- ture, being fixed and immutable, ought to be uniformly received and adhered: to at all times and in all places. The same is to be said of its government, in all those essential parts of its constitution which were pre- scribed by its adorable Head. But in the discipline, which may be adopted for furthering the purposes of ecclesiastical government, regulating the solemnities of public worship as to time, place, and form, and restraining and recifying the evils occasioned by human depravity, this character of immutability is not to be looked for.” But while the Scottish Episcopal Church holds this, other Churches may hold, and have held, otherwise. They may hold, on the one hand, that some rules of discipline are at least as essential as many doctrines ; and, on the other, that the “character of immutability” in all its doc- trines is not essential to a particular Church of Christ, which is under a constant obligation to go back to Scripture. And it does not appear that our law has committed itself to any of these theories. Its theory seems APPENDIX. 315 rather to be that whatever is held essential by a Church (whether doc- trine or practice) will be given effect to by the law; and that whatever the Church holds itself to have power to alter, the law will permit it to change. It will be observed, indeed, that Lord Cranworth reserves the question whether the supposed authority to change, inherent in a govern- ing body, can be allowed to “ affect civil rights already acquired ;” and the same reservation runs through most of the opinions in the lower and higher court. Yet if the civil rights are acquired by members of the Church after this authority of the Church and its judicatories has been distinctly understood and acknowledged within it, it should seem that such rights are qualified thereby—that the power of change (within the understood limits) has become a condition of the contract or of the trust —and that civil law, if it acknowledges the condition as really existing, must acknowledge it as existing to its necessary intents and effects. But the case we are considering seems rather to lead up to this question than to decide it. Tue Lorp CHANCELLOR, after describing the nature and conclusions of the action, said :— “The ground of action laid by the appellant is that the General Synod, in making alterations in the Code of Canons of 1838, by the new Canons _ of 1863, have departed from the recognised constitution and acknow- ledged practice of the Scotch Episcopal Church, and have therefore vio- lated the contract into which he entered by subscribing the Code of 1838. And he alleges that he cannot conscientiously obey this new Code, and in consequence may become liable to penalties, even to the degradation from his office of minister of the Scotch Episcopal Church, and thereby be deprived of all the temporal advantages he derives from his office of minister of the congregation of Burntisland, which is a damage and injury of which the civil courts can take cognisance. The appellant does not allege any actual damage which he has sustained, except with regard to the refusal to license his curate ; but he founds his action upon the pos- sibility of his sustaining damage hereafter by a conscientious adherence to his own views of his obligations, and upon what I must call a senti- mental feeling of having been brought to be a member of an association which, departing from the original terms of communion, has left him in the position of a dissenter. “Tf it had not been for the petitory conclusion of the summons, I think there might have been a plea to the relevancy of the action upon the claim for reduction of the enactments in the Code of Canons of 1863. Sup- posing the appellant to have really sustained damage by reason of the Code of 1863, it would have been open to the Court to consider whether the General Synod had authority to make the Canons from which this civil in- jury had arisen ; but actual damage flowing directly from the effect of the Canons of 1863 is wholly out of the question. The Court had therefore to consider whether it could properly entertain the question of the reduc- tion of the Canons upon the ground that they were a departure from the 316 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. doctrine and discipline of the Scotch Episcopal Church at the time the appellant became one of its ministers. Now, this it refused to do, as it was a mere abstract question involving religious dogmas, and resulting in no civil consequences which could justify the interposition of a civil court. “The case of Macmillan v. the General Assembly of the Free Church of Scotland (23 Dunlop) was frequently relied upon in the course of the argument, and the opinions of the judges were referred to on both sides. The appellant urged it as a strong authority in his favour, because it was there held that sentences of suspension and deposition pronounced by the General Assembly of the Free Church of Scotland, a voluntary religious association, against one of its ministers, were properly the subject of an action of reduction and damages, on the allegation that such sentences had been irregularly pronounced in excess of their powers, and in violation of the conditions which regulated the proceedings of the association amongst themselves, and which were alleged to form a contract amongst the mem- bers of the association, But it must be observed that in that case there were actual sentences of suspension and deposition, from which the loss of the pursuer’s emoluments as minister of the Free Church of Cardross followed as a consequence. The appellant in this case has not been dis- turbed either in his charge of the congregation at Burntisland, or in his legal position as a minister of the Scotch Episcopal Church. If he had been—though in this latter respect only—I should have considered, with the Lord Justice-Clerk, that ‘the possession of a particular status, mean- ing by that term the capacity to perform certain functions or to hold ,certain offices, is a thing which the law will recognise as a patrimonial in- terest, and that no one can be deprived of its possession by the unauthor- ised or illegal act of another without having a legal remedy,’ “The appellant not having sustained any injury which can be the subject of cognisance in a civil court, his appeal might be shortly disposed of upon that ground. But the questions of the power of the General Synod to enact the Code of Canons of 1863, and their moral effect upon the position of the appellant,as a minister of the Scotch Episcopal Church, have been so earnestly and strongly pressed upon your lordships’ atten- tion, that I do not feel justified in passing them by without notice. “The appellant rests his claim to maintain his action upon the follow- ing grounds: He alleges that, by his ordination as a minister of the Scotch Episcopal Church, he became a member of a voluntary religious association under a contract, the terms of which were contained in the Canons of 1838, which he subscribed ; that it was not competent to any number of the members of the association, short of the whole body, to change its fundamental character ; and that the enactment of the Canons of 1863 was a violation of the contract into which the appellant had entered, and materially and injuriously affected his position as a member of the association. “Tt does not appear to me that the Canons of 1838 can properly be regarded as the contract between the members of the Scotch Episcopal APPENDIX. Bay Church at the time when the appellant was ordained to the ministry. They are principally, if not altogether, directed to the regulation of order and discipline, and contain nothing with regard to the fundamental doctrines or articles of faith upon which the constitution of a religious community depends. But assuming that the Canons of 1838 are to be taken as the contract between the members of the Scotch Episcopal Church, the appellant subscribed (amongst the rest) to the 33d Canon, which declares that ‘a General Synod of the Church, duly and regularly summoned, has the undoubted power to alter, amend, and abrogate the Canons in force, and to make new Canons. And by his subscription to the Thirty-nine Articles he agreed that the Church has authority over rites and ceremonies, as declared in the 20th and 34th Articles.” Lorp CraNnwortTH.—“ My lords, the decision of this case depends on certain well-established principles of law. “There is no authority in the courts either of England or Scotland to take cognisance of the rules of a voluntary society entered into merely for the regulation of its own affairs, save only so far as it may be necessary that they should do so for the due disposal or administration of property. If funds are settled to be disposed of amongst members of a voluntary associ- ation according to their rules and regulations, then the Court must neces- sarily take cognisance of these rules and regulations, for the purpose of satisfying itself who is entitled to the funds ; so if the rules of a religious association prescribe who shall be entitled to occupy a house, or to have the use of a chapel or other building. This is the principle on which the Courts have administered funds held in trust for dissenting bodies, There is no direct power in the Courts to decide whether A or B holds a par- ticular station according to the rules of a voluntary association; but if a fund held in trust has to be paid over to the person who, according to the rules of the society, fills that character, then the Court must make itself master of the questions necessary to enable it to decide whether A or B is the party so entitled. “These considerations go to the root of the present case. The appellant contends that he was ordained under the Canons of 1838, and, so ordained, was entitled to exercise the functions of a clergyman of the Episcopal Church of Scotland, according to the doctrine and practice established by those Canons. And he complains that the effect of the Canons of 1863 has been to impose on him the maintenance of doctrines and the adoption of a practice different from those to which he bound himself on his ordina- tion under the prior Canons. But assuming that to be so—assuming that the General Synod of 1863 had no power, according to the constitution of 1838, to make the alterations of which the appellant complains, that of itself gives no jurisdiction to the superior courts. There is no jurisdiction in the Court of Session to reduce the rules of a voluntary society, or in- deed to inquire into them at all, except so far as may be necessary for some collateral purpose. The only remedy which the member of a 318 LEGAL THEORY OF NON-ESTABLISHED CHURCHES. voluntary association has, when he is dissatisfied with the proceedings of the body with which he is connected, is to withdraw from it. If con- nected with any office in a voluntary association there is the right to the enjoyment of any pecuniary benefit, including under that term the right to the use of a house or land, or a chapel, or a school, then incidentally the Court may have imposed on it the duty of inquiring as to the regu- larity of the proceedings affecting the status in the society of any indi- vidual member of it; but here there is no question of that sort. “This seems to me to dispose of the whole case, for I cannot think that the statements in the condescendence allege the violation of any legal right which enabled the Court of Session to inquire into the power of the General Synod to frame the Canons of 1863. In the 4th condescendence the appellant states that, as minister at Burntisland, he is in receipt of an income of £40 per annum, besides an annual grant of £10 from the Church Society towards the maintenance of a school. This may all be true, but there is no allegation that he is entitled as of right to this in- come, or that there is any intention on the part of those from whom it is derived to deprive him of it under the provisions of the new Canons. In the 5th condescendence he states that he is a member of a friendly society to which none but clergy of the Scotch Episcopal Church can belong ; and he complains that, if he is deprived of his status as a clergy- man of the Scotch Episcopal Church, he will lose all benefits from the premiums which he has paid since his ordination in 1848. But here, again, there is no allegation of an intention to deprive him of his status as a clergyman; and if there were, it is not that status which entitles him to the benefits of the friendly society, but a contract into which he has voluntarily entered with that body. If any rights which he or his representatives may have acquired, or may acquire, under that contract, should be violated or withheld, he will seek, and no doubt will obtain, proper redress ; but until such a question arises there is no power to pass any judgment on the validity of the Canons of which the appellant complains. They are the mere rules which a voluntary association has prescribed for itself. “Tn the view I have taken of this question, I do not feel myself in strictness called on to go any further ; but the appellant has argued his case with so much earnestness and ability that I have felt it due to him that I should shortly examine the case from his own point of view—that is, that I should consider whether, assuming that there is any power in the Court to reduce the Canons of 1863, he has shown any ground for such reduction. J am of opinion that he has not. “The appellant rests his case on the analogy which he supposes to exist between the body associated as the Scotch Episcopal Church and an ordi- nary commercial partnership. He contends truly that, unless so far as the articles of partnership authorise it, no change can be made in its pro- visions by the mere will of a majority of the partners, nor indeed without the concurrence of every individual of which the partnership is composed. And he contends that on the same principles the Synod, or general APPENDIX. 319 assembly of persons associated as a Church or religious body, can have no power to alter the Canons or rules of that Church or religious body without the consent of every member of it, except so far as they are expressly authorised to do so by the terms of their constitution. But the Synod of a Church seems to me to resemble rather the Legislature of a State than the articles of association of a partnership.