^^^-- f---^ •"-•i5=: ?j>-v X''':: ■ L I B R.ARY OF THE UN IVLR.SITY Of ILLI NOIS r Ct)urc|) of ^totlanti^ STATEMENT ON THE LAW OF CHURCH PATRONAGE PKEPARED BY A COMMITTEE OF THE GENERAL ASSEMBLY OF THE CHURCH OF SCOTLAND IN 1870, IN COMPLIANCE WITH A SUGGESTION OF THE EIGHT HON. W. E. GLADSTONE, WITH DELIVERANCES OF THE GENERAL ASSEMBLY ON THE SUBJECT OF PATRONAGE. EDINBUKGH: PRINTED BY NEILL AND COMPANY. 1874. ^< COMMITTEE. The Rev. Dr Pirie, Professor of Divi- nity and Church. History, Aberdeen. ,, Dr Barty. ,, Dr Charteris, Professor of Biblical Criticism, Edin- burgh. ,, Dr Macrae. ,, Dr Crav^^ford, Professor of Divinity, Edinburgh. ,, Dr AViLLiAM Smith. ,, Dr Trail, Professor of Syste- matic Theology, Aberdeen. ,, Dr Mitchell, Professor of Ecclesiastical History, St Andrews. ,, Dr MiLLiGAN, Professor of Divinity and Biblical Cri- ticism, Aberdeen. ,, Dr Dickson, Professor of Di- vinity and Biblical Criti- cism, Glasgow. ,, Dr Nicholson. ,, F. L. Robertson. „ J. C. Lees. ,, Dr J. E. CuMMiNG. ,, J. Rankin (Muthill). ,, Dr GiLLAN, Inchinnan. ,, Dr Phin. ,, Arch. Scott, Greenside. ,, Dr Sellar, Aberlour. ,, Dr Brander, Duffus. ,, Mr Mackenzie, Urquhart. ,, Alex. Gardner, Brechin. ,, A. Martin, Snizort. ,, Dr Herdman, Melrose, ,, J. Frazer, Logierait. ,, A. Stewart, Peterhead. ,, J. M'Laren, Fraserburgh. , , George Campbell, Eastwood. „ Dr MrNRO, Campsie. ,, W. C^SAR, Tranent. ,, Alex. Gray, Auchterless. ,, David Williamson. ,, D. Thomson, Forgan, „ G. Turnbull, Glasgow. ,, Dr LiDDEL, Lochmaben. ,, J. Stark, Kilmary. „ J. N. Sandilands, Urr, ,, J. R. Mitchell, Kirkmichael. ,, W. Forsyth, Abernethy. „ Thos. M. Pirie, Knockando. The Rev. K. Mackenzie, Kingussie. ,, Dr Macdonald, Inverness. ,, David Webster, Fetlar. „ Dr Boyd. ,, Thos. Eraser, Croy. ,, D. Cameron, Glengarry. „ J. Robertson, Whittingharn. ,, Daniel Maclaren, Carluke. The Right Hon. Lord Polwarth. The Hon. Major Baillie. Sir Robert Anstruther, Bart. , M.P. Wellw^ood H. Maxv^ell, Esq., M.P. John Tait, Esq. James Baird, Esq. David Milne Home, Esq. J. A. Campbell, Esq., yr. of Stracathro. David Smith, Esq. Alex. Kinloch, Esq., yr. of Gilmerton. Sheriff Barclay. Edmund Baxter, Esq. T. G. Murray, Esq. Edward S. Gordon, Esq., Dean of Faculty, M.P. J. J. Grieve, Esq., M.P. William Yeats, Esq. The Lord Provost of Glasgow. R. S. F. Spottiswoode, Esq. John M'Culloch, Esq. William Law, Esq. Alexander Simpson, Esq. Alexander Burnet Whyte, Esq. Philip Oliphant, Esq. William Lindsay, Esq. William Lumsden, Esq. Charles Stewart, Esq. Charles Gordon Robertson, Esq. William Taylor, Esq., Glasgow. Charles MacTaggart, Esq. Matthew Foester Heddle, Esq. EVANDER M'lVER, Esq. Robert Scarth, Esq. William Lawrence, Esq. William John Menzies, W.S. James Reid, Esq. Archibald Smith, Esq. Patrick Small Keir, Esq. Robert Cooke, Esq. Duncan C. Kennedy, Esq. Robert Hutchison, Esq. Daniel Forbes, Esq. J. T. Maclagan, Esq. Dr Pirie, Convener. T. G. Murray, Esq., and Dr Charteris, Vice-Conveners. W. J. Menzies, 22 Hill Street, Edinburgh, Clerk to tJie Committee. STATEMENT ON THE LAW OF CHURCH PATRONAGE PREPARED BY A COMMITTEE OF THE GENERAL ASSEMBLY OF THE CHUECH OF SCOTLAND. In compliance with a suggestion made by Mr Gladstone, the following Statement has been prepared, to explain the posi- tion of Lay Patronage in Scotland, in its historical aspects, and as it exists at the present day; and to set forth, in a brief compass, some of the grounds of the claim made for its abolition. The circumstances which led to the appointment of the Committee may be briefly stated. While the operation of the Laws of Patronage has been Narrative of pro- always felt to be unsatisfactory, the great majority of the tra^ppofnufient^ ministers and members of the Church of Scotland were un- °^ committee. willing to disturb the arrangement effected by the law of 1843.* Many attempts have been made within the last twenty years, by framing regulations for the guidance of the Church Courts, and otherwise, to secure the better working of that Law ; a Standing Committee on the subject of these" regulations has been continued year by year ; and on two different occasions special Committees were appointed to consider whether the Act itself could be modified so as to produce greater harmony in the settlement of ministers. But at length it came to he generally felt that the chief evils were * Act 6 and 7 Vict., cap. 61. inseparable from the system of Lay Patronage which the Act sought to administer ; and accordingly the General Assembly of 1866 resolved that, 'having respect to the advantages * that would accrue from the modification of the Law of ' Patronage, a Committee be appointed to inquire into the ' subject. ' In 1867 the General Assembly was almost equally divided on the question of reappointing this Com- mittee. In 1868 the General Assembly voted upon two motions, one of them proposing the abolition of the Act of Queen Anne, and the other, which was carried by a small majority, appointing a Committee to inquire whether any modifications of the Law of Patronage ' are called for and ' can be made,' with power to consult ' influential parties ' as to such modifications as may appear likely to command ' success and promote the interests of the Church.' The Committee reported that they had consulted Presbyteries, Elders, and Patrons, and that while many of the Elders and Patrons had not replied to their communication, a large majority of the Eeturns from Presbyteries, and of the Answers received from the others, were in fav^our of an alteration on the Law of Patronage. The General Assembly thereupon, by a majority of 193 to 88, passed a resolution (26th May 1869), adopting 'the said Eeport in so far as it * indicates the evils which have arisen from the existing Law * of Patronage ; the advantages which would arise from the * abolition thereof, with such compensation to Patrons as may * appear just and expedient ; and generally, in so far as it * recommends that the nomination of ministers should be * vested in heritors, elders, and communicants, leaving the ' details, both as to the constitution of the nominating body, * and as to the respective powers of the nominating body * and the congregration at large, to be arranged so that there * should be conferred on the permanent male communicants ' of each parish the greatest amount of influence in the ' election of ministers which may be found consistent with ' the preservation of order and regularity in the proceedings.' At a subsequent meeting of Assembly it was resolved ' to ' petition both Houses of Parliament for the removal of ' Patronage,' in terms of the resolution just quoted ; and the present Committee were appointed ' to take all other * necessary steps for carrying their resolution into effect, and I o' ' for attending to the progress of any legislative measure on * the subject of Patronage which may be introduced into ' Parliament.' The petitions were presented to the House of Lords by Deputation to the Earl of Stair, and to the House of Commons by Sir Eobert Anstruther; and a deputation was sent to London from the Committee, to lay the resolutions of the Church before the Prime Minister and the Lord Advocate for Scot- land. The deputation, which was received by the Scotch Members of Parliament with much cordiality, had, in the first instance, an interview with the Lord Advocate MoncriefP, who expressed his general approval of their views. Three Peers and thirty-seven Members of the House of Commons subsequently had the kindness to accompany them to the Prime Minister, by whom they were most courteously re- ceived. Mr Gladstone suo^s^ested that a statement should be drawn up, so as to bring more fully before the Govern- ment, and other members of the Legislature, the claims of the Church of Scotland, and the grounds upon which these rest. The Committee have in consequence prepared, and now present, this Statement, with the view of meeting.the sugges- tion of Mr Gladstone, so far as their commission from the General Assembly enables them to do so. Whatever may have been the origin of Lay Patronage, it History of Pat- appears that at the Eeformation, in the year 1560, there were Re"vStion^set-'* 940 parochial benefices in Scotland, of which 262 were desig- ^™^" ' nated as Patronate, and 678 as Patrimonial. In patronate benefices, the incumbent, who was styled rector or parson, had a right to the whole tithes. Patrimonial benefices were such as had been conveyed absolutely to ecclesiastical corporations or Church dignitaries ; and in them the cure was served by a member of the corporation or by a stipendiary. The patronate benefices were for the most part in the gift of the Crown, although in some the Patronage belonged to individual laymen or ecclesiastics. It was, therefore, in less than 262 out of 940 benefices that Lay Patronage existed, bequeathed to the Church from pre-Eeformation times. With regard to Patrimonial benefices, Lord Stair observes, ' there was no patronages of all * these kirks.' The ' Piist Book of Discipline,' which, though never ratified First Book of Dis- cipline, 1560. by Parliament, was subscribed by a majority of the members of the Privy Council, and approved by the earlier General Assemblies, thus lays down the principle on which the appoint- ment of ministers should proceed : ' It appertaineth to the ' people and to every several congregation to elect their minister.' ' This libertie with all care must be reserved to every several ' church, to have their votes and suffrages in the election of their ' ministers ' (chap. iv. 2-4). The only limitations to this liberty were, that the right must be exercised without undue delay ; and that if not so exercised, the superintendent and his council might present a man whom the vacant church ought to receive, I unless upon examination he should be found unqualified. Book of Common To the Same effect is the direction in the ' Book of Common Order. ' Order,' which had been used in Knox's congregation in Geneva, and was received and approved by the Church of Scotland : ' The ministers and elders at such times as there ' wanteth a minister assemble the whole congregation, exhort- I ' ing them to advise and consider who may best serve in that Mode of electing ' room and of&ce.' The General Assembly of 1560 'appointed ministers, 1560. . *^ ^^ ' the election of the minister, elders, and deacons to be in the ' public kirk.' At the election and admission of a superin- tendent* for the churches of Lothian, in 1560, at which John Knox presided, and to which all the churches ' having a voice ' in the election ' had been duly summoned, the question was put ' to the whole multitude, If there was any other whom ' they would put in election ? ' and then the further question, ' If they would have the said M. John superintendent ? ' The same form was appointed to be followed in the election and admission of ministers generally, t * Sujjerintendent. — As the number of ministers was not sufficient to supply all the parishes, the Reformers appointed a few men of the highest attainments to superintend districts, requiring them to travel incessantly to and fro, preach- ing not less than three times a- week. They were subject to reprimand or deposition by the General Assembly. See Principal Lee's ' Lectures on the ' History of the Church of Scotland,' vol. i. p. 160. t While the Church thus, m the ' First Book of Discipline, ' declared that the election of ministers should be vested in the people, it is to be observed that the Reformed ministers had no wish to serve themselves sole heirs to the Proposed applica- rich endowments of the Popish hierarchy and corporations ; but presented a t-°"i ^^ ■^^^^^^^^^~ petition to the Convention of Estates, praying, amongst other things, that ' the patrimony of the Church should be employed to the sustentation of the * ministry, the provision of schools, and entertainment of the poor.' But this. The principles by which the Chnrch was to be guided in the ordinance of n ' ' ^ - 1 1-11 1 J 1 ^T Council, 15G6. election of ministers being thus laid down and acted on, the Eeformers had to deal with the fact, that in nearly one-fourth of the parochial benefices there existed the system of Lay Patronage. Their first object seems to have been to limit and rei£ulate its exercise even within the bounds to which it was confined. In 1566, they obtained an ordinance of the Queen in Council, that all benefices under the yearly value of 300 merks should be disponed, i.e, assigned to such persons as the superintendents and Assembly of the Kirk, after due examina- • tion, should find qualified, and should nominate and present to her Majesty; and in 1567 a series of statutes was passed by which statutes, iser. Popery was abolished, the Eeformed religion was recognised, its Confession of Faith was ratified and approved, and a more satisfactory legal provision was made for the ministers. By one of these Acts (1567, c. vii.), ' It is statute and ordained * . . . that the examination and admission of ministers * within this realm be only in the power of the Kirk now openly ' and publicly professed within the same — the presentation of ' laick patronages alwaies reserved to the just and auncient ' patrones.' This reservation, it will be observed, would not apply even to the whole of the 262 patronate benefices, and did not apply to any patronages which, since 1560, might have been granted by the Crown. ' Laic patronages (says Sir says Spottiswoode, * ' was not very pleasing to divers of the nobility, who, * though they liked well to have the Pope, his authority, and doctrine con- ' demned, had no will to quit the Church patrimony, wherewith in that stirring * time they had possessed themselves.' The result was, that for the first few Position of mlnis- vears after the Reformation, while the cures were served by the Eeformed t^-Ts after Refor- J ' -' mation. ministers, these seem generally to have drawn little from the benefice, and to have been to a great extent dependent for subsistence on the contributions of their flocks, or on their own means. Queen Mary had directed that two-thirds of the fruits of the benefices should be retained by the old possessors, and that out of the remaining third a suitable stipend should be paid to the Reformed ministers ; but this fund was neither fairly levied nor properly applied. In the meantime many of the laity appropriated the possessions and tithes of the benefices, and were aided in doing so by the old incumbents. The patrons of the smaller benefices took possession of them as they became vacant, in many instances without legal authority, while the greater benefices were often granted by Queen Mary, as they fell vacant, to lay nobles and others in commendam — a well-known device, originally contrived for evading the canon law, and enabling persons otherwise incapable of holding a benefice to draw its fruits j through one who was a mere trustee for them. \ * Spottiswoode's ' History of Religious Houses,' p. 150. 8 Grants of Pat- ronage by King James. Second Book of Discipline. ' George Mackenzie * commenting upon this Act, 1567), are ' such as have been disponed before the Eeformation by his ' Majesty (and those pass by infeftment), or have been founded ' by laic patrons since.' King James, on assuming the reins of government, claimed for the Crown all the property of the Popish Church in Scot- land, and made heritable grants to nobles and others of the great benefices, with the rights of patronage which had be- longed thereto. The grantees of these erected benefices, called Titulars,-]- or Lords of Erection, came thus into possession of the right of patronage of the patronate churches belonging to the benefice, and, in room of the ecclesiastical corporations to which they succeeded, became titulars of the patrimonial churches of the suppressed Establishment. The King also assumed the right of erecting the stipendiary cures into bene- fices, and made grants of the patronage thereof, although Sir George Mackenzie, who is a high authority, affirms that * nothing could be so unjust or illegal as these patronages ' were.' The Church did not fail to protest against the system, both by Act of Assembly and in practice. In 1582 the Assembly made a reservation in favour of the ' laic patrons ' and their presentations,' but this only ' until the tyme the ' lawes be reformit according to God's Word.' In 1588 they agreed to petition the King that all gifts of the Patronage of patrimonial benefices might be annulled in the ensuing Parlia- ment, and in the meantime they prohibited Presbyteries from instituting any minister who had been presented by * the new ' patrones ' until the next General Assembly ; and even so late as 1596, they declared that if any should seek presentation, without advice of the Presbyteries beforehand, they should be repelled ' as rei amhitus' The ' Second Book of Discipline,' which was agreed upon by the General Assembly of 1578, protests no less distinctly than the ' First ' against Lay Patronage, though it proposes a somewhat different substitute. In chap, xii., under the title, ' Certain special heads of Eeformation which we crave,' there is the following statement : — * 'Observations on the Act 1592.' Sir George Mackenzie was the well- known Lord Advocate in the reign of Charles II. t Titulars of the tithes had by their grants the same title to the benefices which the monasteries had formerly, and [they became responsible for the supply of the cure out of the tithes thus acquired. ' Because this order, which God's Word craves, cannot ' stand with Patronages and Presentation to Benefices, as used ' in the Pope's Kirk, we desire all them that truly fear God ' earnestly consider, forasmeikle as that manner of proceeding ' has no ground in the Word of God, but is contrary to the ' same, and to the said libertie of election, they ought not to ' have place in the light of this Pteformation.' The ' said * libertie of election' was proposed to be ' by the judgment of the eldership and consent of the congregation.' So far as the practice of the Church at this early period can Eariy Practice of be traced, it is found, to some extent at least, upholding popular election. At St Ninians in 1587, at St Andrews in 1590, at Haddington in 1601, the appointments were made by the people. In 1597 a presentation to the vicarage of Tranent was refused, and another, in 1602, to the vicarage of Aberlady ; and the presentee in each case was declared to be ' reus ambitus* Even in 1621, under Episcopacy, the Presbytery of Haddington refused to induct a presentee against the wishes of the people. The remonstrances of the Church were, however, unavail- ing ; and in the Act 1592, chap. 116, which gave the sanction Act ratifying of the civil power to the Presbyterian form of Church govern- Government" ment, it was expressly provided that the Presbytery - be bound ^^^^" ' and astricted to receive and admit quhatsumever qualified ' minister presented be His Majestic or uther laic patrones.' From that time down to 1638, including the thirty years of Period from 1592 Episcopacy, Patronage continued to be the law binding upon ^^ ^^^^' the Church ; though, as has been shown already, individual parishes often protested against it, and sometimes not in vain. Even during that period the Church did not submit to, nor did the Patrons attempt to enforce, unrestricted Patronage. When Presbytery was restored in 1638, the struggle against Patron- age was renewed, but it was felt and admitted that a suc- cessful issue in that struggle could only be reached by Act of Parliament. In the meantime, the Church bore with the evil which she could not remove. In a pamphlet written in 1641 by Alexander Henderson, the well-known ecclesiastical leader, * it is said, ' This libertie of election is in part prejudged or hin- ' dered by patronages and presentations, which are still in use ' there, not by the rules of their discipline, but by toleration of * that which they cannot amend.' * In the next year, 1642, the * '* Treatise on the Government and Order of the Church of Scotland." 10 Crown Patronage was laid aside in favour of lists of qualified preachers recommended by the Church, of whom the King was to select one ; and in ' Bailie's Letters ' * it is stated that the Marquis of Argyle made to the General Assembly ' a fair ' offer for himself and all the noblemen present, hoping to ' persuade other noblemen and gentlemen to do the like, that ' they would give free liberty to presbyteries and people to ' name whom they would to vacant places, upon condition the ' Assembly would oblige intrants to rest content with modified stipends/ The condition here made was naturally objected to, but the plan suggested was otherwise carried out in the Act of 1649, cap. 39, one of the most important in the history of the question. Patronage abo- By this Act Patrouage was abolished. The preamble of the Act declares that ' Patronage and presentation to Kirks is an ' evil and bondage under which the Lord's people and the ' ministers of this land have long groaned, and that it has no ' warrant in God's Word,' and further, ' that it is prejudicial ' to the libertie of the people.' The Act then proceeds to ' discharge for ever thereafter all patronages and presentations ' to kirks ; ' and to annul all gifts made ' in favor of any ' patrone or patrones whatever ; ' and to ordain that ministers be settled ' on the sute and calling, or with the consent of the ' congregation, on whom none is to be obtruded against their 'will ; ' leaving the Church to arrange the working of the Act Compensation to by regulations of its own. The Act further made direct com- Patrons. peusatiou to Patrous for the loss involved in its provisions : * It is further statute and ordained, that the tithes of these ' kirks whereof the presentations are hereby abolished, shall * belong heritably unto the said Patrons, and be secured unto * them, and inserted in their rights and infeftments in place of ' the Patronage.' Power of Pur- Bcsidos this direct compensation to Patrons, the Act con- giveTtoHeritOTs. fcrrod a boon on heritors and proprietors of land in Scotland. In 1629, an Act had been passed giving them power to buy up at nine years' purchase the tithes of their own lands, burdened with stipend and future augmentations thereof. The Act 1649, cap. 39, which abolished Patronage, gave to heritors power to buy at six years' purchase. uestoratioii,i66o. At the Ecstoratiou, Episcopacy and Patronage were restored * 'Bailie's Letters,' vol. i. p. 337. 11 together. All the provisions of the Act 1649 were repealed, and orders were given that Presbyterian ministers settled under that Act should be ejected from their livings, nnless they accepted presentation from the Patron, and came under special obligations to submit to the bishop. In consequence, nearly one-third of the clergy vacated their livings. The persecution of the ejected clergy and their adherents, com- monly known as the Covenanters — which, after the lapse of two hundred years, is still fresh in the memory and indigna- tion of the people — continued till the Eevolution of 1689. Scotland rejoiced as much as any other part of the British Revolution settie- dominions in the civil and religious freedom secured by the "^^" ' Eevolution Settlement, which restored the Presbyterian Church and gave deliverance from Patronage. The Act 1690, cap. 5, ratified the Act 1592, called the ' Charter of the Church,' with the exception of the clause regarding Patronage, which was * reserved ; ' and the Act 1690, cap. 23, abolished Patron- age, which it af&rmed had been ' greatly abused,' and was ' inconvenient to be continued in this realm ; ' and in its place gave the power of nominating ministers to the ' heritors of the ' parish (being Protestants), and the elders,' who were ' to ' name and propose the person to the whole congregation, to be approven or disapproven by them.' The Act revived the compensation to provisions of the Act 1649, cap. 30, giving compensation to ^ ^""^'~ Patrons, enacting that ' the right of the teinds of the said i. Teintu. parishes which are not heritably disponed, shall, hy virtue of ' this present Act, belong to the said Patrons, with the burden always of the ministers' stipends;' and by Act 1693, cap. 25, those provisions were expressly extended to the churches which were originally patronate, and where the rector or parson had before been entitled to draw the whole teinds of the parish. There was another provision of this Act, apparently intended to secure compensation to a Patron where, from the position of the teinds in the parish, he might not benefit by the prior enactment. This provision, which ultimately proved injurious, was as follows : — ' And in lieu and recompence of the said right 2. Money. * of presentation hereby taken away, their Majesties, with advice ' and consent foresaid, statute and ordain the heritors and life- ' renters of each parish, and town-council for the burghs, to pay ' to the said Patrons, betwixt and Martinmas next, the sum of ' six hundred merks (L.33, 6s. 8d. sterling.)' It is then pro- 12 Patron age of only four parishes purchased. Working of the Act of 1690. vided that the Patrons shall be bound to accept this payment, and to grant a renunciation of their rights thereupon ; and ' in ' case the heritors and others aforesaid be unwilling to pay, ' ordains letters of horning to be direct at the instance of their ' Majesties' solicitor against either of them.' It is provided also that, till renunciation is given by Patrons, ' in the mean- * time heritors and Kirk-Session to call the minister, conform * to this Act.' The provision for buying up the Patronages at a nominal sum was not acted on, only four parishes having tendered the money ; and one of these (the parish of Strathblane) having paid it by mistake to the wrong person, his renunciation was declared void. But it cannot be maintained that the blame of allowing this provision to remain inactive lay with the Church; for payment was to be made, not by the Church at large, or by the Kirk-Session, or by the congregation, but by the heritors and life-renters. And the letters of horning against those who delayed payment beyond ' Martinmas next,' were to be at the instance, not of the Church or the Kirk- Session, but of the Crown solicitor. That the provision was not enforced was probably due to the clause transferring the Patronage to the Kirk-Session and heritors, whether payment were made or not. The working of the Act of 1690, abolishing Patronage, may be said, making allowance for the circumstances of the times, to have been satisfactory. The preamble of the subsequent Act of Parliament 1712 does indeed state that 'that waj^ of * calling ministers occasioned great heats and divisions among ' those who were entitled and authorised to call ministers ;' but against this (which was, as will be shown immediately, a hostile representation) may be set the assurance of the Com- missioners of the Assembly 1735 (and engrossed in the Eecord of Assembly 1736), that under it matters were managed '^ with * much calmness, decency, and order,' and that ' religion and * loyalty daily gained ground against profane principles and ' practices, and against disaffection to the civil government :' and this other testimony, still more conclusive, that the Com- mission of the Assembly 1711 unanimously and eagerly opposed its abolition, as tending inevitably ' to obstruct the * work of the gospel, and create great disorder and disquiet in * the Church and nation.' 13 In the year 1712, under the administration of Harley and Act of Queen Bolingbroke, and just before the meeting of the General ""^' Assembly, there passed in great haste through the British Parliament the Act of Queen Anne, cap. 12, restoring Patron- age. This Act repealed the Act of 1690, and restored the rights of Lay Patrons, except where renunciation of Patronage had been formerly made. Nevertheless, it preserved the right of the Patrons to the teinds which had been given them in 1649 and 1690 * in place of the Patronage.' As was stated by the Commissioners from the General Assembly in their repre- sentation against the Bill when passing through Parliament, * This Bill takes back from the Church the power of presenta- ' tion of ministers, without restoring the tythes which formerly ' belonged to her, by which the Patrons come to enjoy both ' the purchase and the price." The Act requires and obliges Presbyteries to receive any qualified person presented to a parish, as presentees ought to have been admitted before the passing of the Act ; and it makes no reference to any call or consent on the part of the people. These are the chief provisions of one of the most important Acts ever passed affecting the Church of Scotland. And in order to understand both the Act itself and the effect which it produced, it is necessary to inquire, with what objects and motives it was passed. There exists ample historical evidence that it was one of the acts of a conspiracy for the purpose of bringing back the Stuart dynasty to the throne. The deputa- tion of the General Assembly of 1735 (only twenty- three years afterwards) state openly in their address to the King, * That it was done in resentment against the Church of Scot- ' land, and that further threatenings were by these persons * breathed out against her, for her firm and loyal adhesion to the ' Revolution interest, and especially to the succession of the ' Crown in your Majesty's royal Protestant family, was not then ' denied, but boasted of, and is still remembered by all who ' observed these times.' Bishop Burnet (a member of the House of Peers when the Act passed) describes it as intended * to weaken and undermine ' the Church of Scotland. Lock- hart of Carnwath, who was one of those who drew up the Act, states in his Memoirs that he did so ' against the interests of * the House of Hanover.' And it is of this Act that Lord Macaulay says : — ' The British Legislature violated the Act 14 Protest of the Church. Act of Queen Anne at first only partially enforced. of Union and made a change in the constitution of the Church ' of Scotland. From that change has flowed almost all the ' dissent now existing in Scotland. . . . From the Act of 1712 * undoubtedly flowed every secession and schism that has taken * place in the Church of Scotland.' * The Act was received with a unanimous protest on the part of the Church. The Assembly of 1712 carried their remonstrances to the foot of the throne. They protested that ' the Act abolishing Patronage must be understood to be a ' part of our Presbyterian constitution, secured to us by the ' Treaty of Union for ever.' Again and again did the General Assemblies of the Church repeat their protest. A quarter of a century afterwards, commissioners were again at the foot of the throne, imploring that the Church and people of Scotland might be restored to their just right and privilege in the settlement of ministers ; and for nearly seventy years in suc- cession instructions were given to the Commission of Assembly to embrace any favourable opportunity for getting the Act repealed. This law of 1712 was for a long time only partially enforced. The Patrons seem to have been unwilling to exercise a privi- lege so unpopular and invidious ; and many settlements con- tinued to take place in conformity with the Act 1690. The general course of procedure seems to have been, that on a vacancy the Patron forebore to present. The jus devohUitm "f thus coming to apply, the Presbytery, on the lapse of the six months appointed by statute, made over their right to the heritors and elders, but required the consent of the congrega- tion, who were asked to sign what was termed a ' call ' in testimony of their approbation of the appointment. Gradually * Burnet's ' History of his own Time,' ii. 595 ; Lockhart's Memoirs, vol. i. p, 418; Macaulay's Speeches, vol, ii. p. 180. The haste shown in passing the Act is remarkable. No intimation of the intention of Government to deal with the question was made until notice of the Bill was given in the Commons on the 13th March ; it was read a second time on the 24th, committed on the 28th, and passed on 7th April. Next day it was read a first time in the Lords. The Commissioners of the Church, who had hurried to London on the first tidings of the Bill reaching Edinburgh, arrived too late for the proceedings in the Commons ; they petitioned to be heard by counsel at the bar of the Lords ; were heard on the 12th April ; and on the same day (a Saturday) the Bill was read a second time, committed, aud read a third time. t Jiis devolutum. If a Patron does not present a qualified person within six months of a vacancy in a parish, his right falls to the Presbytery, under the above name. 1733. 15 the call became the most important document in the whole procedure ; and the appointment, even when presentations were issued, seems to have taken place rather under the call than under the presentation.* The Church Courts, in various instances, set aside presentations for no other reason than the opposition made to them by the people, and never proceeded to a settlement without first sustaining the call. Matters continued in this state till about the year 1725, ^^^s«^^««i«"°f when a party began to appear, complaining of various griev- ances in the Church. Among other things they maintained that, in the elections which fell to Presbyteries jure devoluto, the heads of families ought to be the electors. The Church was disturbed by the disputes which followed ; and the General Assembly of 1732 passed an Act entrusting to the heritors and elders the power of electing and calling a minister, and to the congregation the right of approving or disapproving. In the event of the congregation disapproving, the Presbytery were to judge of the sufficiency of the reasons alleged. This Act of Assembly gave great offence to the party just men- tioned ; and Mr Ebenezer Erskine, minister of Stirling, who was regarded as their leader, took an early opportunity of denouncing the position and conduct of the Church as un- scriptural. This was done chiefly in two sermons — one preached to his own congregation at Stirling, the other before the Synod of Perth and Stirling, of which he was at the time Moderator. In the former, alluding to recent acts in the Church, he declared that ' those professed Presbyterians who ' thrust men upon congregations without, and contrary to, the * free choice their King had allowed them, were guilty of an ' attempt to jostle Christ out of His government.' The Synod of Perth and Stirling having proceeded to cen- sure Mr Erskine for his sermon preached before them, he appealed to the General Assembly, and was joined in the appeal by three of his brethren. The Assembly ordered the appellants to withdraw the language which they had employed, and to express regret for having used it ; and, on their refusal, they were first suspended and afterwards deposed. Subsequent Assemblies endeavoured to heal the breach that had taken placed ; but their efforts at conciliation were not successful. * Between 1712 and 1730 many settlements were made without a presenta- tion; none without a call (Cunningham's 'Church History,' vol. ii. p. 422.) 16 The seceding brethren formed themselves into an independent presbytery ; and, in reply to the sentence of deposition passed against them in 1733, they ' appealed unto the first free, ' faithful, and reforming General Assembly of the Church of ' Scotland.' Such was the origin of the Secession Church. The Relief The dcpositiou of Thomas Gillespie, and the rise of what came to be known as the Eelief Church, took place in 1752. He and five other members of the Presbytery of Dunferm- line refused to take part in settling a presentee whom the General Assembly had ordered to be inducted in face of the opposition to the parishioners. It had become customary in such cases to effect the settlement by the appointment of a committee of ministers in place of unwilling members of Pres- bytery. But by this time the leading men in the Church deemed it necessary to put a stop to what they considered acts of insubordination and disobedience. They seem to have feared that, otherwise, the whole working of their ecclesiastical system would be thrown into confusion. Ac- cordingly, the six ministers were summoned to the bar, where they made a declaration, ' that ever since the Act restoring * Patronage in the end of Queen Anne's reign, there has been a * vehement opposition to all settlements by presentation where ' there was but small concurrence [^.e., on the part of the ' congregation], which settlements have already produced a ' train of the most unhappy consequences, greatly affecting the ' interests of religion.' They further referred to the fact, that so recently as 1736 the Assembly had passed an Act against the intrusion of ministers, which called upon all Presbyteries, as ' they regarded the glory of God and the edification of the * body of Christ, to see that no minister be intruded into ' any parish contrary to the will of the congregation.' They followed up this declaration by declining to take part in the case of intrusion, which they maintained to be in direct dis- regard of the principles held by the Church of Scotland since the Reformation, and enjoined anew by the Act of Assembly 1736. The General Assembly, notwithstanding that there was a sufficient quorum in the Presbytery willing to settle the presentee, thought it necessary, by way of example, to depose for disobedience one of those who objected, and fixed on Mr Thomas Gillespie, minister at Carnock. The result was the formation of the Relief Church. 17 Several small churches were subsequently formed from the Giowthotthe ■•■ "^ Secession and Secession Church, but most of these, along with the parent iieiief chmches. body and the Eelief Church, were, some years ago, consolidated into what is known as the United Presbyterian Church. The two seceding Churches did not carry with them originally any large number of the people. A few ministers seceded, carrying with them their congregations, or a portion of them. But the results which followed were seriously injurious to the Church. Patronage came to be more and more stringently exercised ; and Sir Henry Moncreiff states in his * Life of Erskine,' speak- ing of the position of matters some sixty years ago, ' The ' battle in Assemblies is in a great measure over, as a disputed ' settlement no longer creates any serious interest or division ' in the Church Courts ; but the silent increase of seceding ' meetings has gradually weakened and contracted the influence * of the Establishment on the general population.' It was, to a great extent, through unacceptable settlements in the Established Church, that the seceding Churches acquired from time to time large additions to the number of their adherents. It has been mentioned that on the passing of the Act of continued avcr- ^ " , sion of Estab- Queen Anne the General Assembly protested earnestly against ^^«^^^^^f 'J'^'^^ '^ it. An unsuccessful attempt to obtain its removalVas made in 1735 ; and in the following year the General Assembly recorded in solemn words ' that the Church of Scotland was ' obliged to persist in using her best endeavours to be relieved ' from the grievance of Patronacre.' Erom that date down to the year 1783 the Assemblies of the Church gave an annual instruction to their Commission to avail themselves of any opportunity for obtaining a repeal of the Act. Eor forty-five years after 1783 the Church may be said to have submitted to Patronage, although a minority of its members still protested against it. The feeling with which some even of what is called the Moderate party, which had then the ascendancy in the Church, and was least unfavourable to Patronage, regarded it, may be gathered from the words of Dr Hardy, one of the ministers of Edinburgh, Professor of Church History, and an influential member of that party. In 1782 he published a pamphlet entitled * The Principles of Moderation, addressed ' to the Clergy of the Popular Interest in the Church of Scot- ' land,' with the object of uniting parties. In that pamphlet he says: ' Ye subjoin that this transference of power in 1712 B 18 The Veto Act, 1834. Committee of House of Com- mons, 1834. was wrong; that it was unfriendly in its intention, and hath been Imrtful in its effects; and that the liberty of British subjects entitles you to say that it is a grievance, in the simple and grammatical sense of the word, and ought to be redressed. What reply do we make to this? None. We are silent here in our Assemblies. We are afraid to fret the sore which, alas! we cannot heal; or to say to the people in a great court, Your displeasure is not groundless ; because we cannot add that " our votes can remedy the evil." But we agree with you, gentlemen, in your sentiments of the law itself; we allow that it is a hardship; or, if you will contend for a word, we say with you it is a grievance ; not such indeed as to justify resistance, but such as will warrant application for redress. When I speak thus, I am certain that I speak the sentiments of a great majority of the Moderate interest.' And in a subsequent passage he says : ' The experienced opposition of seventy years, joined to the revolt of a hundred thousand people, are the proofs that absolute Patronage is irreconcilable with the genius of Presbytery.' After 1784 no special action was taken for the next forty years, though there always existed a party in the Church de- sirous to renew the old movement against Patronage. In the year 1825 an Anti-patronage Society was formed, having no connec- tion with the Courts of the Church, but serving to sustain and stimulate the traditional feeling on the subject. In 1832 a movement was made in the General Assembly to make the call given by the people to the presentee efficient. This having failed, there was next proposed the famous Veto Act, which, defeated in 1833, was again proposed, and was carried in 1834. The provision of this Act was, that the dissent of a majority of the male heads of families in a parish, being com- municants, should, without any reason assigned, be sufficient to set aside a presentee. It was an Act of the General Assembly, not of Parliament ; but it was not passed without a full assurance from the law officers of the Crown in Scot- land that it was quite within the power of the Church. The intention of the promoters of this Act, however, was not to abolish Lay Patronage, but rather to save it by necessary modification. In the same year, 1834, a Select Committee of the House of Commons was appointed on the Law of Patronage, the 19 evidence before which is the best summary of the historical and legal aspects of the question which we possess. The Committee came to no definite finding on the subject. The necessity for doing so was regarded, even by those who desired a change, as superseded by the action of the General Assembly, which was taken between the date of the Com- mittee's appointment and that of their giving in their Eeport. But the warm expressions of regard for the Church with which the Committee conclude their Eeport should not be omitted in this statement. ' No sentiment,' they say, ' has been so ' deeply impressed upon the minds of jour Committee, in the * course of their long and laborious investigation, as that of * veneration and respect for the Established Church of Scot- * land. They believe that no institution has ever existed * which, at so little cost, has accomplished so much good. ' The eminent place which Scotland holds in the scale of ' nations is mainly owing to the purity of the standards and * the zeal of the ministers of its Church, as well as to the ' wisdom with which its internal institutions have been * adapted to. the habits and the interests of the people.' * Within a year after the Veto Act was passed the presenta- 1834-43. The tion to Auchterarder was issued. There immediately followed the veto against the presentee by a majority of the male heads of families, and the challenge in the Civil Court of the legality of that veto — a challenge sustained by the Court of Session, and ultimately by the House of Lords. Close on this followed the case of Lethendy, and then the case of Marnoch, in the Presbytery of Strathbogie. It was no longer the desirable- ness of the Veto Act, but the right of the Church to pass it, which was in question. The ' non-intrusion ' controversy had passed into that of ' spiritual independence.' The decision of the House of Lords in the Auchterarder case led at once to a collision between the Courts of the Church and the Court of Session. And it was on a question thence arising in re