mM-\
 
 THE STATEMENTS 
 
 CLAIM OF RIGHT 
 
 ARE THEY TRUE P 
 
 By VERITAS 
 
 EIGHTH THOUSAND. 
 
 GLASGOW: 
 JAMES MACLEHOSE, 6i ST. VINCENT STREET. 
 
 EDMONSTON AND DOUGLAS, EDINBURGH. HAMILTON, ADAMS AND CO., LONDON. 
 1875-
 
 THE CLAIM OF RIGHT. 
 
 When a Free Churchman is asked the reason of his 
 separation from the Church, of Scotland, he points for 
 answer to the " Claim of Right," and he asks in return, 
 whether any conscientious man could have remained in 
 the Church under the state of matters disclosed in that 
 document. I have always had a certain sympathy w^ith 
 that answer. The man believes in the Claim of Right. 
 He believes that the Court of Session did all the things 
 detailed in it. Why should he not believe in it .'' He never 
 himself, of course, examined into the facts on which its 
 conclusions are founded. It would be unreasonable to 
 suppose that he had done so. It would take an astute 
 lawyer weeks of labour to examine In detail all the 
 facts and circumstances with which it deals ; and fevv' 
 ministers, and fewer laymen, could be expected to enter 
 on such an investigation. But that is no reason 
 why the Free Churchman, who read the Claim of 
 Right after it was laid on the table of the General 
 Assembly in 1842, should have hesitated to assume its 
 accuracy. It was prepared by a Non-intrusionist — one 
 of his own party — a man in whom he had implicit 
 confidence — a lawyer, of long standing — one who had for 
 many years made church matters and church lavr his
 
 special study. I confess that if I had myself been one 
 of that party, and had possessed no other source of 
 information, the chances are, that whatever doubts I may 
 have previously had, would have been determined by a 
 perusal of the Claim of Right, and that I would probably 
 have left the Church with the rest. Just look at it. Any- 
 thing more unjust, more overbearing, more tyrannical than 
 the conduct of the Scotch judges, if we accept the state- 
 ments in this remarkable document, it would be impossible 
 to conceive. Justice had been denied, Acts of Parliament 
 trampled upon, the rights of the Church overborne, and 
 every principle of law and equity set at defiance. 
 
 Is it surprising that after reading such a statement, 
 so prepared, and solem.nly adopted by the majority in 
 the General Assembly, so many Scotchmen — ministers 
 and laymen — should have left a Church Avhich they 
 believed had been subjected to such treatxnent, and for 
 which, when as a last resource complaint was made to 
 the State, redress was refused .? I do not think it 
 surprising. 
 
 But what if the things alleged in the Claim of Right 
 to have happened did not happen ? What if the state- 
 ments are not true ? 
 
 This, to an intelligent and conscientious Free Church- 
 man, must be a very startling question. But he must meet 
 it ; and my present object is to bring him face to face 
 with it, for upon the answer to it rests the very foundation 
 of his separate standing-ground. 
 
 What, I repeat, if the statements so solemnly and forcibly 
 made in the Claim of Right have — the greater part of them, 
 the most important of them — no foundation in fact ? The 
 great bulk of the ministers, and probably the whole of the 
 laity, who left the Church in 1843 believed these state- 
 ments to be true, and they left only because they believed 
 
 ^if^i 

 
 5 
 
 them. The document was sent out to India, and to our 
 other foreign mission stations ; and the missionaries there, 
 accepting it on trust and believing it, separated from the 
 Church. Tlie Synod of the Enghsh Presbyterian Church 
 had it transmitted to them. ; and they also believing it, 
 adopted it, and entered upon their records an excommuni- 
 cation of all who in such circumstances could continue in 
 a church which had been so treated. The English Pres- 
 byterians showed at first, indeed, a caution which did not 
 lind imitators elsewhere ; but it came to nothing. When 
 asked to adopt the Claim of Right, they inquired, Is it all 
 true ? and in order to be informed on that point, they 
 remitted the document to a committee to examine its 
 statements, and to report to a future meeting of the Synod. 
 But the committee, after looking at it, reported that it 
 was impossible for them within the time at their disposal 
 to verify its statements, and they suggested that each 
 member of the Synod should examine it and judge for 
 himself ; and so, without further investigation, the Synod 
 accepted it on trust. Thus people in Scotland, the 
 missionaries abroad, and the Presbyterians in England, 
 adopted the statements and conclusions of the Claim of 
 Right, simply because they found them there, and because 
 the leaders of the Non-intrusion party told them that they 
 were all true. I need hardly say that few of the laity ever 
 studied the Claim, or sought to verify its statements; but 
 they were told by ministers whom they trusted that every- 
 thing stated there had taken place, and that no man with 
 any regard for his soul's welfare could remain in a church 
 which had suffered such things. One of their principal 
 leaders, Dr. Cunningham, did not hesitate to state publicly 
 that those who remained in the Church of Scotland consti- 
 tuted " a synagogue of Satan " ; and generally the people 
 were told that they could not remain without renouncing
 
 their allegiance to Christ. It is not surprising that in such 
 circumstances the congregations as a rule followed their 
 ministers in a mass. As regards many of the ministers 
 who told their people this, let us not be hasty in con- 
 demning them. The ministers, I have no doubt, believed 
 in the Claim of Right themselves, and they believed it 
 because it was put forth by men whom they trusted, 
 and who assured them that it was true, and that it 
 could not be answered. 
 
 I return then to the question — Are the statements in 
 this Claim of Right true ? and the answer is that they are 
 not true; that, on the contrary, this celebrated document is 
 full of misrepresentations; and that, on all the important 
 points with which it deals, the facts are either the reverse 
 of what is asserted, or they are so stated as necessarily to 
 convey a false impression of what actually took place. 
 This is a very serious charge, and I am fully sensible of 
 the responsibility incurred in making it. My object is to 
 show that it is well founded, and in doing so I shall en- 
 deavour to write calmly and impartially — dealing not with 
 arguments or deductions, but with facts, and so stating 
 them as to enable each reader to form his own judgment. 
 
 Let me at the outset state in a sentence what were the 
 circumstances under which the Claim of Right was put 
 forth — avoiding details which v/ill come afterwards. The 
 party which had obtained a majority in the General As- 
 sembly previous to 1843 succeeded in passing two Acts — 
 the Veto Act and the Chapel Act. Both were opposed by 
 large minorities. In an assembly of 323 members, the Veto 
 Act was carried by the votes of only 184. A minority of 
 no less than 139 protested against it as ?//tra vires of the 
 Assembly. But no factious opposition was offered, and the 
 State did not interfere. After a time, however, both Acts 
 were called in question — in separate actions — by certain
 
 individuals, who alleged that their civil interests were 
 injuriously affected by them. These parties contended that 
 the General Assembly had no power to pass the Acts in 
 question — that they were opposed to the laws and constitu- 
 tion and practice of the Church itself, as well as to statute 
 law. In both cases these pleas were, after trial, sustained 
 by the Court of Session ; and in one of them, the leading 
 case, the decision was confirmed by the House of Lords. 
 All the other cases arose out of these two. The party 
 represented by the protesting minority was satisfied 
 that in all of them the Court had only exercised its 
 constitutional function of deciding pure questions of 
 law submitted to its judgment, in which civil interests 
 were involved. But the Non-intrusionists — those in the 
 General Assembly who afterwards founded the Free 
 Church — professed different views, and they gave expres- 
 sion to them in language which nothing short of the most 
 criminal disregard of law and justice on the part of the 
 Court of Session could have justified. I may aptly quote 
 here the striking and dignified language of the Lord Chief 
 Justice of England on a recent public occasion."^ " One of 
 " the great safeguards of the Constitution," his Lordship 
 said, " has been the confidence of the people in the 
 " purity and integrity of the administration of justice. 
 " Woe to those who seek to undermine that confidence — 
 " to those who, by calumny and vituperation, seek to shake 
 " the confidence of the people in the administration of the 
 " justice of the country." To this grave charge the 
 founders of the Free Church have laid themselves open, if 
 the statements in the Claim of Right are not true. Li that 
 document it is averred that in the predisruption cases the 
 Court had acted unjustly ; that it had " invaded th^ 
 
 ■^' Speech at meeting of the Chamber of Commerce in Southampton, 
 31st March, 1875, as reported in the Times.
 
 8 
 
 jurisdiction of the Church " — had " usurped the power of 
 the keys " — had " illegally attempted to coerce the Church 
 Courts " — and had acted " in opposition to the doctrine of 
 '' God's Word ; in violation of the Constitution of the 
 " country, in defiance of the statutes, in breach of the 
 " Treaty of Union, and in contempt of the laws of the 
 " kingdom." In such terms did the leaders of the party 
 seek to shake the confidence of the people of Scotland in 
 the administration of justice, and to hold up to reproba- 
 tion and contempt the highest judicial tribunal in the 
 kingdom. And in all this, the Claim of Right adds, the 
 Court of Session had acted in direct opposition to what 
 had been previously decided in the same Court in similar 
 cases. 
 
 This grave charge the Non-intrusionists embodied in a 
 document which they laid on the table of the General 
 Assembly in the session of 1842, and which they called a 
 " Claim, Declaration, and Protest anent the encroachments 
 " of the Court of Session " — since commonly called the 
 Claim of Right. This Claim they laid before the Govern- 
 ment of the day, and asked for the Church relief and 
 protection against a state of matters which — assuming all 
 that was charged to be true — was certainly altogether 
 intolerable. The Government considered what was 
 demanded to be unreasonable and unconstitutional, and 
 declined to interfere. And thereupon the "disruption" 
 took place. 
 
 Now the question I am to consider is. Did the Court of 
 Session really act in the manner alleged ? On the answer 
 to that question this Claim of Right stands or falls. It is 
 important to keep this in view, because, although the 
 Claim recites numerous statutes, and refers to ever so 
 many decisions, it ends with asking nothing but this — 
 freedom for the Church to enjoy her liberties and privileges
 
 " according to lazu,'' and " protection therein from the fore- 
 '* said unconstitutional and illegal encroachments of the 
 " Court of Session." It does not ask that the Veto Act or 
 the Chapel Acts should be confirmed by Act of Parlia- 
 ment. It does not ask that patronage should be abolished. 
 It only asks that the State should interfere in favour of 
 the claims put forward by the Non-intrusionists, and 
 against the jurisdiction of the Civil Courts ; and because 
 the State declined to interfere, that party left the Church 
 of Scotland. If, therefore, it can be shown that the Court 
 of Session did nol do what it is accused of doing, and 
 that it did not act illegally and unconstitutionally, the 
 Claim of Right falls to the ground. 
 
 Now, let us examine this Claim. The opening sentence 
 — the preamble, as the lawyers would call it, on which all 
 that follows rests, sets forth that, notwithstanding the 
 securities of the government and liberties of the Church 
 " provided by the statutes of the realm, by the constitution of 
 this country!' and by the coronation oath, " these have been 
 '' of late assailed by the very Court to which the Church 
 " was authorized to look for assistance and protection, to 
 " an extent that threatens their entire subversion." 
 I quote this in order to call attention to the all 
 important fact that Vv^hat is claimed is rested not 
 upon any inherent " spiritual independence" in the 
 Church, but on her rights as recognized by statute and 
 secured by the laws and constitution of the kingdom. 
 It is impossible to exaggerate the importance of the 
 principle thus conceded, for if, as is here broadly admitted 
 and asserted, all that the Non-intrusionists demanded before 
 1843, was what had been secured to them by statute and 
 common law, then it follows that in every one of the 
 questions which arose, the legitimate and the only 
 competent tribunal to decide upon the measure of the
 
 lO 
 
 rights claimed was a court of law. It equally 
 follows that, in exercising its judicial function of deciding 
 such questions, the Court of Session did not " invade the 
 jurisdiction of the Courts of the Church," as the Claim of 
 Right asserts it did; for in none of the cases did it do 
 anything more than interpret the law and the statutes of 
 the realm, when required to do so — a function which it 
 will not be pretended belonged in any way to the Church 
 Courts. 
 
 Following up this important preamble, the Claim of 
 Right proceeds to set forth the statutes by which the rights 
 and the constitution of the Church are defined, including 
 the Confession of Faith, which it takes care to explain is 
 itself an Act of Parliament, being " recognized, ratified, 
 and confirmed by Parliament," and embodied in the 
 treaty of Union. And it bears expressly that the '* exclu- 
 sive jurisdiction" claimed by the Church is that which has 
 been, " by diverse and repeated Acts of Parliament, 
 recognized, ratified, and confirmed." Then the Claim 
 goes on to assert that " diverse civil rights and privileges 
 " were, by various Acts of Parliament, secured to the 
 "Church" ; and various Acts are cited as those which con- 
 ferred these rights. Thereafter the Acts of Parliament 
 relating to patronage are recited, including the Act of 
 Queen Anne (lO Anne, c. 12). 
 
 It is unnecessary to discuss the terms of these statutes. 
 They speak for themselves. I would only repeat that 
 the very fact that they are cited at all, coupled with 
 the admission in the Claim of Right that no exclu- 
 sive jurisdiction is claimed for the Church other than 
 what had been ratified and confirmed by these Acts of 
 Parliament, at once negatives the assertion that the Civil 
 Courts — the sole interpreters of statutes — had, in judging 
 of the cases submitted to them which fell to be decided
 
 II 
 
 by the terms of these Statutes, invaded the jurisdiction 
 of the Church. The Civil Courts might, of course, err in 
 judgment, for no human tribunal — Church Court or Civil 
 Court — is infallible. In one of the cases — aa interdict 
 granted in absence, but which was never enforced — it did 
 err; but that does not affect the question. If the Court 
 of Session did nothing more than judicially decide the 
 cases brought before them, according to " the statutes of 
 the realm and the constitution of this country," under 
 which alone any right was claimed for the Church, the 
 charge that the Court had stepped beyond its province, 
 and had invaded the spiritual jurisdiction of the Church, 
 falls to the ground. 
 
 After reciting the statutes, the Claim of Right proceeds 
 to set forth the , principle of Non-intrusion ; and the Veto 
 Act is described from the point of view of the Non- 
 intrusibnists. 
 
 After this narrative, the Claim proceeds to make this 
 statement: "That by a judgment pronounced by the 
 " House of Lords, in 1839, it was for the first time 
 " declared to be illegal to refuse to take on trial, and 
 " to reject the presentee of a patron (although a layman, 
 " and merely a candidate for admission to the office of the 
 " ministry), in consideration of this fundamental principle 
 " of the Church and in respect of the dissent of the con- 
 '* gregation." This is the only place in the Claim of Right 
 in which this judgment is referred to, and the passage 
 stands alone as a statement that a particular Act of the 
 Church had been pronounced by the House of Lords to 
 be illegal. 
 
 Now this — taken with its context — is an important 
 passage in the Claim of Right. The judgment referred to 
 in it was that which was pronounced in the first Auchter- 
 arder case, by which it was decided, after exhaustive
 
 discussion — first in the Court of Session, and then in 
 the House of Lords — that the Court of Session had 
 jurisdiction to entertain an action complaining of the 
 illegal refusal of a Presbytery to take a presentee on 
 trial, to the effect of vindicating the civil rights of the 
 patron and presentee ; and that the Presbytery of Auch- 
 terarder had, in refusing to take the presentee on trial 
 on the sole ground of the Veto Act, acted illegally and 
 contrary to the statutes recited in the Claim of Right, 
 and particularly the Act lo Anne, c. 12. The ground of 
 the judgment was, that the General Assembly had exceeded 
 its powers in passing the Veto Act, and that a patron or 
 presentee, whose civil rights were defeated by it, must 
 necessarily be entitled to the protection of the Civil 
 Courts. 
 
 This first Auchterarder case was the one according to 
 the principles settled in which all the cases which followed 
 arising out of the settlement of ministers were decided — 
 just as all questions which arose regarding the erection of 
 parishes and the legal constitution of Church Courts were 
 decided by the judgment in the Stewarton case. 
 
 I have said that the passage regarding the decision of 
 this first Auchterarder case which I have quoted from the 
 Claim of Right is an important one. It is important in 
 this, that while in every one of the decisions subsequently 
 cited, the Court of Session is accused of having invaded 
 the jurisdiction of the Church, and acted in defiance of 
 statute and in contempt of law, there is not one sentence in 
 the Claim which asserts that the Courts went beyond their 
 legitimate province when they decided, in the first Auch- 
 terarder case, that to refuse to take on trial the presentee 
 of a patron was illegal. On the contrary, it recognizes the 
 decision as one which settled the law as regarded every 
 civil right and interest. The Claim of Right expressly
 
 13 
 
 states accordingly that, so far as the decision affected civil 
 rights, the Church " bowed to its authorit3\" 
 
 This, then, is not a decision of which the Claim of Rigrht 
 complains. The only decisions in which the Court of 
 Session is accused of acting illegally and unconstitutionally 
 are those which were subsequently pronounced, " pending 
 " the efforts of the Church to accomplish a/i alteration of 
 '' the /azi<y 
 
 I may here remind the reader of what is well known in 
 the history of this controversy, that among some of the 
 best and ablest of the Non-intrusion party, serious doubts 
 existed as to the power of the Church to pass the Veto 
 Act ; and it will be remembered how often the Free 
 Church party have stated in defence of their action in 
 passing that Act that — notwithstanding that they claimed 
 to be the interpreters of the mind of Christ in such 
 matters^— they had taken legal advice on the subject. No 
 one doubted their good faith in passing the Act, and they 
 certainly adopted a wise and prudent course in taking 
 legal counsel before they passed it. The event proved 
 that the lawyers they consulted were wrong, just as in 
 many other cases it is found that the advice given by 
 counsel to the disappointed litigants has been erroneous. 
 But why consult lawyers about it at all 1 The answer is 
 obvious. It was because they knew that the question 
 of their power to pass it at all was a pure question of 
 law. They must have felt, therefore, that when the 
 question was tried and decided against them, they had no 
 alternative but to acquiesce in the decision, and to "bow 
 to it," as one which the Courts of Law had jurisdiction 
 to pronounce. 
 
 But if it did fall within the legitimate function of the 
 Courts of Law to judge in the case, why did the Non-intrusion 
 party refuse to give effect to the judgment by repealing
 
 H 
 
 the Veto Act ? It was their refusal to do so that caused all 
 the misery. The Claim of Right asserts that they did give 
 obedience to it as regarded all civil consequences ; but this 
 is not the case, for in regard to the most important civil 
 consequences they set it at defiance. The words of the 
 Claim are : " To the authority of which judgment, so far as 
 " disposing of civil interests, this Church implicitly bowed." 
 But how ? " By at once abandoning all claim to the jus 
 " devolutum — to the benefice for any party to be settled 
 '' by her — and to all other civil right or privilege zvJiich 
 *' might otherwise have been competent to the ChurcJi or 
 " her Courts." 
 
 But why limit the submission to civil rights competent to 
 the Church.'^ There w^ere other civil rights and interests 
 involved in the judgment, and these of a far higher and more 
 important kind than \\\^jns devohitnni or the benefice — not 
 to speak of the absurdity of making a merit of abandoning 
 any claim to what, after the judgment, could in no possible 
 circumstances be available to '' the Church." What about 
 the civil rights of the patron whose right of patronage was 
 rendered valueless } What about the civil rights of the 
 presentee who was kept out of the benefice, and whose 
 prospects were blasted by the refusal of the Presbytery 
 to take him on trial } And if these interests could be 
 thrown aside, what about the still higher and more im- 
 portant civil interests involved in providing a minister for 
 a vacancy in one of the parishes of Scotland, and filling a 
 vacant place in the Presbytery — a court empowered and 
 bound by statute to exercise certain important judicial 
 functions in civil causes } On their own admission, the 
 Presbytery could not supply the vacancy — either in parish or 
 Church Court ; for the only way in which a Presbytery can 
 do this is by the exercise of the jns devolutinn ; and that 
 right never can come into operation unless the patron
 
 15 
 
 has failed to present. The only other way in which the 
 vacancy could be supplied was by disregarding the Veto 
 Act, and taking the presentee on trial ; and this the 
 Non-intrusion party refused to do. The parish, there- 
 fore, would remain vacant, and a Court of the Church 
 would be deprived of one of its members, to the detri- 
 ment or rather to the entire sacrifice of most important 
 civil interests. 
 
 In refusing, therefore, to repeal the Veto Act, the Non- 
 intrusionists did not bow to the decision of the House of 
 Lords, " so far as disposing of civil interests." They over- 
 looked the fact that the duty of the Presbytery to fill a 
 vacant parish was a civil duty, and that, apart alto- 
 gether from the civil loss sustained by the patron and 
 presentee — although that also was involved — it was a duty, 
 incumbent on them officially, to supply the vacancy accord- 
 ing to the law of the Church — in the way, that is, in which 
 they would have supplied it but for the Veto Act, and by 
 which alone it could be supplied, now that that Act 
 had been declared illegal. They overlooked, in short, 
 the fact that the filling up of vacant parishes by inducting 
 ministers not only involved important civil interests, but 
 was a ministerial duty which, by accepting office in the 
 Church, they had undertaken to perform, " according to 
 law," and in regard to which, therefore, they had no 
 option. As Lord Mackenzie truly observed, when giving 
 judgment in the Lethendy case : " The effect of the decision 
 " in the Auchterarder case w^as that, although the acts of 
 " the Presbytery in regard to the admission of ministers, 
 " such as the taking the party on trials, the inquiry into his 
 " qualifications, and his final admission, are ecclesiastical 
 " acts exclusively within the functions of the Presbytery, 
 " the question zvhether or not the Presbytery is bound 
 '^ministerially to enter into tJiat course of proccd2ire, and to
 
 i6 
 
 " exercise its ministerial functions In regard to them, is a 
 " civil qnestion which the Court of Session is entitled to 
 '' entertain and to decide upon." In the Auchterarder case 
 the Presbytery refused to exercise this ministerial func- 
 tion. The House of Lords decided that in so doing they 
 acted illegally ; and therefore if they really meant to " bow 
 '' implicitly to that judgment so far as disposing of civil 
 "interests," there remained no course open to them but to 
 exercise the ministerial function of taking the presentee on 
 trial — that being the only v/ay by which the parish of Auch- 
 terarder could be supplied with a minister, and by which 
 the vacant seat in the Presbytery could be filled. But they 
 continued to refuse, and in so doing they set the judgment 
 of the House of Lords at defiance as regarded the most 
 important civil interests which were involved in it. Out 
 of that refusal all the subsequent trouble arose ; and let it 
 ever be kept in vicv\^ that in every judgment which the 
 Court pronounced in these subsequent cases they did no 
 more than carry out the principles of the Auchterarder 
 judgment to their legitimate consequences ; and that in 
 every one of them the Court exercised its judicial function 
 because of the civil rights and interests in regard to Vv'hich 
 its protection was sought, and because of these alone. 
 
 Having stated the decision in this case, by which it was 
 declared to be illegal to refuse to take on trial the presentee 
 of a patron in consideration of the Veto Act, and having 
 stated it, too, as a decision which must bind the Church in 
 all civil matters, including, as I have shown, the very act 
 itself of taking the presentee on trial as a civil obligation, 
 the Claim of Right goes on to admit that the consequence 
 of the decision would be to effect " a separation between 
 the cure of souls and the benefice thereto attached." It 
 ought to have added that, if the decision was disobeyed in 
 this and other instances, the whole machinery of the
 
 17 
 
 Church would be brought to a dead-lock, and the Church 
 of Scotland itself would necessarily become extinct. The 
 Non-intrusionists indeed saw this, and the Claim of Right 
 virtually admits that such a result could only be averted 
 by " an alteration of the law " — meaning by that that the 
 law should be altered to meet their views. 
 
 Here, then, is the first misleading statement in the Claim 
 of Right, for the only impression made on the general 
 reader must be that in every matter of civil right — in 
 every matter, that is, with which a Civil Court could 
 competently deal — the Church had given obedience to the 
 decision in the Auchterarder case ; whereas the fact was 
 the reverse — the Church having defied the law, and refused 
 obedience to the judgment in regard to various civil rights 
 of the very highest importance. 
 
 Such being the general character of this Claim and the 
 circumstances in which it was made, I now pass to that 
 important part of it which deals with the decisions of the 
 Court, and what I am about to show is, that the Court 
 of Session — against whose misdoings the whole document 
 is directed — did not do what the Claim of Right alleges it 
 did. If I succeed in showing this, the whole Claim, as I 
 have said, necessarily falls to the ground, for it concludes 
 with nothing but a demand that the Church shall be pro- 
 tected *' from the foresaid unconstitutional encroachm.ents 
 '' of the Court of Session, and her people secured in their 
 " Christian and constitiLtional rights and liberties," that is, 
 as elsewhere expressed in the Claim, that they be allowed 
 to enjoy their liberties and privileges " according to Ictivr 
 
 The Claim of Right first proceeds to found an argument 
 on certain earlier decisions — contrasting what the Court 
 did in these cases Avith what it did in those of a later date 
 In these earlier decisions, the Claim asserts, the Court of 
 Session " never attempted or pretended to direct or coerce
 
 i8 
 
 " the Church Courts in the exercise of their functions in 
 *' regard to the collation of ministers," but, on the contrary, 
 " limited their decrees to the regulation and disposal of the 
 " temporalities which were derived from the State, and 
 "which, as the proper subject of actions civil, were within the 
 " province assigned to the Court of Session by the constitu- 
 '* tion ; refusing to interfere with the peculiar functions and 
 " exclusive jurisdiction of the Courts of theChurch. Thus: — " 
 and then follows what professes to be an account of the 
 different cases in v>/hich it is said this was done. Of course, 
 in no case did the Court of Session ever interfere with the 
 legitimate exercise of the functions and jurisdiction of the 
 Church Courts ; but the inference conveyed by the state- 
 ment in the Claim of Right is that, even in cases where the 
 Church Courts had acted illegally, the Court of Session 
 limited the exercise of its jurisdiction to the disposal 
 of the temporalities, and " refused " to judge as to any- 
 thing else. But such was not the case. I have not space 
 to refer to all the cases, but those I shall cite will more than 
 bear out v/hat I have stated. 
 
 The first is the case of Auchtermuchty.* " In this case," 
 says the Claim of Right, " where the Presbytery had 
 " wrongfully admitted another than the patron's presentee, 
 " the Court found that the right to a stipend [the italics are 
 " in the Claim of Right] is a civil right, and therefore, that 
 " the Court have power to cognosce and determine upon 
 " the legality of the admission of ministers in hnnc effeetnnt, 
 '' whether \hQ persoji admitted shall have right to the stipend 
 '* or not ; and simply decided that the patron was entitled 
 " to retain the stipend in his own hands." 
 
 This case, it will be observed, is quoted in proof of 
 the assertion that the Court " refused to interfere " with any 
 thing but the stipend, and ''simply decided" as to that. 
 * Moncrieff z/. Maxton, 15th Feb., 1735.
 
 19 
 
 But the fact is, that the only matter before the Court was 
 a claim for the stipend. The ground of the claim was 
 that the settlement of Mr. P^Iaxton by the Presbytery, in 
 the face of a presentation by the lawful patron, was illegal ; 
 and the question which Maxton raised was, whether the 
 judgment of the Church Courts was not final. It was 
 plainly impossible for the Court to entertain and sustain 
 this claim without examining the grounds of it. But did 
 the Cotirt refuse to consider the objections to Mr. Maxton's 
 settlement by the Presbytery .^ On the contrary, it con- 
 sidered them, and sustained them, and found that the 
 patron had right to retain the stipend, " as in the case of a 
 vacancy." The words quoted are significantly omitted in 
 the Claim of Right. As the only matter before the Court 
 was the right of the patron to retain the stipend, the decree 
 of the Court was necessarily limited to that. But on the 
 very same principle on which they decided for the patron, 
 they would have decided for the presentee, had he been 
 a party, as they did in the Auchterarder case. They 
 would have ordained the Presbytery to proceed with the 
 settlement, and on their refusal to do so, would have found 
 them liable in damages. In this case, then, the Court did 
 not do what the Claim of Right asserts it did. 
 
 Another of the cases instanced in the Claim of 
 Right as one of those in v/hich the Court of Session in 
 former times " refused " to interfere in anything beyond 
 the regulation and disposal of the temporalities, was that cf 
 Culross ;* but neither in that case is it true that there was 
 any such refusal. As in the Auchtermuchty case, the only 
 question was one as to the stipend between the patron 
 and a minister settled by the Presbytery — the patron 
 claiming it on the ground that the Presbytery had acted 
 illegally in the settlement. Stoddart, the party inducted, 
 * Cochrane v. Stoddart, 26th June, 175 1.
 
 20 
 
 resisted the patron's claim. He demanded the stipend as 
 inseparable from the cure, and contended that the Court 
 had no jurisdiction to inquire into the legality of his 
 admission. But the Court decided, as before, that they 
 Jiad jurisdiction, and having found that the proceedings 
 of the Presbytery in filling up the vacancy had been 
 illegal, they " preferred the patron." They treated 
 the whole proceedings of the Presbytery, in short, as 
 absolutely null, and their decree accordingly was, that 
 the patron should be entitled to the stipend, " aye and 
 until the vacancy should be legally supplied." It is clear 
 from the principles on which the Court proceeded in this 
 case, that had the presentee appeared to prosecute Jiis claim, 
 the Court, so far from refusing to interfere, would have 
 given the relief asked. Equally clear is it that if the 
 heritors had thought fit to appear, the Court would, at 
 their instance, have excluded the intruder from the use of 
 the church, and from the manse and glebe (as they did in 
 the case of Unst, to be presently noticed), and that they 
 would also (as in the case of Stewarton) have interdicted 
 him from sitting in the Presbytery. Yet it is asserted in 
 the Claim of Right that in this case the Court ''refused" 
 to go into these questions. As regards the heritors, the 
 incumbent anticipated any action on their part, for, as 
 might have been expected, on finding he was to get no 
 stipend, he demitted his charge within a year after the deci- 
 sion — verifying in this his own plea, that for all practical 
 purposes " the stipend is inseparable from the cure." 
 
 The Case of Unst* is another of the same class of 
 decisions. It is quoted in the Claim of Right, like the 
 two already noticed, to prove the assertion that the Court 
 " never attempted to direct the Church Court in the 
 exercise of their functions " ; but, on the contrary, "refused " 
 * Lord Dundas v. Presbytery of Zetland, 15th May, 1795.
 
 21 
 
 to judge In such matters. The case is thus cited in the 
 Claim : " So, in the same manner, in the case of Unst, zvJien 
 " the party concluded to have the Presbytery ordained to 
 '' proceed to the presentee's settlement, as well as to have the 
 "■ validity of the presentation and the right to the stipend 
 " declared, the Court limited their decree to the civil matters 
 '' of the presentation and stipend." But, Incredible as it 
 may appear, the facts were the reverse. The pursuer ob- 
 tained all that he asked — namely, decree in terms of the 
 declaratory conclusions of the libel. The summons had 
 contained rescissory conclusions for setting aside the pro- 
 cedure of the Presbytery, but these the pursuer departed 
 from — the declaratory conclusions being quite sufficient for 
 his purpose. These conclusions were " that the Presbytery 
 " of Zetland should be ordained to give due obedience to the 
 " presentation, and to proceed to the settlement of the said Mr. 
 " John Nicholson, according to the rules of the Church; and 
 " until the conclusion of the process to follow thereon, and 
 " that the said Mr. John Nicholson shall be settled in the 
 " said chnrch and parish, It ought and should be found 
 "and declared that the pursuer and the other heritors, 
 *' liable In stipend, are entitled to retain and uphold the 
 " same, and to prevent the said Archibald Gray from taking 
 " possession of the manse, glebe, or other rights and prlvi- 
 " leges belonging to the minister of said parish." * And 
 in these terms the Court gave decree. To afford another 
 illustration of the Impracticability of separating the cure 
 from the temporalities, the presentee In this case followed 
 the example of the minister of Culross, by demltting his 
 charge within a few months after the date of the decree. 
 
 After citing these cases as examples of the '' refusal " of 
 the Court to entertain any questions but such as related to 
 
 '^ Bell's fol Cases, p. 170. Robertson's Report of Auchterarder 
 Case, I, p. 323.
 
 22 
 
 the temporalities, the Claim of Right proceeds to adduce 
 this additional instance in support of the same assertion : 
 '• So, further, in the before mentioned case of Culross, the 
 " Court refused * as incompetent ' a bill of advocation pre- 
 " sented to them by the patron for the purpose of staying 
 " the admission by the Presbytery of another than his own 
 " presentee."* Here the obvious meaning conveyed to the 
 general reader is that the Court of Session refused to 
 judge as to the legality of a Presbytery's proceedings 
 in a matter of induction. But, on referring to the case, it 
 will be found that the one and only ground of the Court's 
 judgment was, that the matter had been brought before it 
 in an incompetent form, namely, by a bill of advocation — 
 the Court in this confirming, what has never been disputed, 
 that there is no appeal from an Ecclesiastical to a Civil 
 Court — an advocation being the form adopted in appeals. 
 Had the patron brought his action in the proper form, the 
 Court would unquestionably have heard the case. This 
 the framer of the Claim of Right, as a lawyer, could not fail 
 to know ; yet he so puts it as necessarily to lead to the in- 
 ference that the Court had, on principle, considered itself 
 powerless to interfere in the case of a settlement threatened 
 to be made contrary to law. 
 
 The reader will be already able to judge from these in- 
 stances what faith is to be placed in the statements in the 
 Claim of Right. In every one of them, it will be seen, it 
 is untrue that the Court of Session did what the Claim 
 avers it did. But instances of misrepresentation far more 
 serious remain to be noticed. 
 
 Plaving adduced these examples of what the Claim untruly 
 
 says the Court refused to do in earlier times, out of respect to 
 
 the rights of the Church, it proceeds to notice another class 
 
 of cases — those, namely, which occurred shortly before 1843, 
 
 ■^Cochrane, 19th November, 1748.
 
 23 
 
 in which it avers the Court, reversing its former line of con- 
 duct, acted in disregard and violation of the Church's rights. 
 
 The averment is that in this class of cases the Courts of 
 Law, not confining themselves to matters which affected 
 civil interests, "stepped beyond the province allotted to 
 " them by the constitution — deciding not only ' actions 
 " civil,' but ' causes spiritual and ecclesiastical,' and that, too, 
 " v\'hen these had no connection with the exercise of the 
 " right of patronage." This, it is averred, the Court did 
 " by interdicting Presbyteries of the Church from admitting 
 " to a pastoral charge, wJien about to be done irrespective of 
 " the civil benefice attached thereto ; or even where there 
 ''was no benefice, no right of patronage, no stipend, no 
 *' manse or glebe, and no -place of worship, or any patriinonial 
 " right connected therewith!' 
 
 Now if the Court of Session really did this — if the act 
 of the Presbytery in these cases v/as of a purely spir- 
 itual character, and did not affect any civil interest — the 
 action of the Court of Session was one of intolerable 
 tyranny and injustice ; for that Court has jurisdiction in 
 no case in which a civil interest or patrimonial right 
 is not involved. Let us see whether the charge be true. 
 
 The two principal cases cited to prove it are the first 
 Lethendy case and the Stewarton case. 
 
 To begin v/ith the Lethendy case. So far from having 
 " no connection with the exercise of the right of patronage," 
 as stated in the Claim of Right, this case arose entirely out 
 of a question of patronage. A question had arisen, which 
 of two presentees had the legal civil right to claim 
 induction; and pending an action raised by one of them 
 to establish his claim, the Court, on his application, 
 and in order to protect the civil right, ordained the Pres- 
 bytery to delay proceedings till it should be ascertained 
 which had the legal right. The Presbytery, however, in
 
 24 
 
 defiance of the order of the Court, Inducted the other. 
 When the case came before the Court on a complaint, the 
 Presbytery sought to shelter themselves under the plea 
 that they had only appointed to the spiritual charge, and 
 had done nothing which could affect any civil right. This 
 plea the Court at once repelled as untenable, because 
 opposed to the palpable facts. The Lord President said : 
 " The act of Induction of Mr. Kessen was as regular and 
 '* formal an Investiture of him, with the full status and 
 " rights of a parochial minister as the Presbytery could 
 "possibly confer. Including the addition of his name to the 
 " roll of the Presbytery, which could only be done as the 
 " parochial minister. The act of the Presbytery, therefore, 
 " w^as 7iot of a purely ecclesiastical character, ^//^ directly 
 ''interfered with tJie temporalities of the beneficed Dr. 
 Rainy and his party In the Free Church are in the habit 
 of quoting Lord Cockburn as expressing sound views In 
 these predlsruption cases. Let us see what Lord Cockburn, 
 sitting as a judge, said in this Lethendy case. By the 
 Induction, he said, they have given to Mr. Kessen " a right 
 " to claim the stipend. By enrolling him as a member of 
 " Presbytery they have given him a vote in several civil 
 " matters touching schools and manses ; and I am not sure 
 '^ that they have not given him the benefit of the Widows' 
 " Fund. These civil privileges folloived the indnctionl' And 
 Lord Fullerton — whose opinion Is of peculiar value, as he 
 had been in the minority In the Auchterarder Case, said : 
 "Above all, it seems to me clear that we can and ought, 
 '' when necessary, to interdict the Presbytery froin the 
 " commission of civil ivrong, by proceeding Avithout pre- 
 " sentatlon, or upon bad and illegal presentation, to the 
 " prejudice of those truly having right as patrons or 
 " presentees. To such interdict there can, I think, be no 
 " objection, except such want of jurisdiction In this Court
 
 25 
 
 " as makes it incompetent for us to take cognizance of 
 " the conduct of Presbyteries in regard to the matter of 
 " patronage altogether. But after the case of Auchter- 
 " arder, that want cannot possibly be held to exist. ... If 
 " we can interdict in any case, we must have jurisdiction 
 *' to interdict whenever there are good grounds for an 
 " interdict, to prevent wrong by the invasion of the right of 
 " patronage, or to prevent apparent danger of such wrong, 
 " And if that be true, then there manifestly was jurisdiction 
 '' to grant an interdict in the present case." 
 
 Yet the framer of the Claim of Right — himself a lawyer, 
 and intimately acquainted with the details of this case 
 — made the Claim of Right assert that, in the Lethendy 
 case, the Court of Session stepped beyond its pro- 
 vince, and exercised its jurisdiction in a matter where 
 no civil right was involved, And because the Claim 
 of Right asserts this. Free Church ministers continue 
 to assert it. Thus, in a recent paper by a Free Church 
 minister of Dr. Rainy's party — one of a series of 
 publications bearing to be for the information of "our 
 people" — the author. Dr. Blaikie, echoing the Claim of 
 Right, asserts that '' the Civil Courts interdicted Pres- 
 " byteries from ordaining men to the charge of souls, even 
 '' though, as in the Lethendy and Stewarton cases, tJiere 
 ^^zvas no question involved of stipend, manse, or glebe, or any 
 ^^ temporal interest whatever'' The italics are Dr. Blaikie's. 
 I do not blame him for making the assertion. He 
 found it in the Claim of Right, and did not know that 
 it was untrue. That it is absolutely untrue as regards 
 the Lethendy case I have shown. That it is equally 
 untrue as regards the Stev/arton case will be shown 
 presently ; yet, this was in the Claim of Right made one 
 of the grounds of charging the Court of Session with 
 judging in a case which involved no civil or patrimonial
 
 26 
 
 right, and thereby " invading the spiritual privileges of the 
 " Church in violation of the constitution of the country, 
 " in defiance of the statutes, and in contempt of the laws 
 " of the kingdom." 
 
 It is asserted in the Claim of Right that, in the Stewarton 
 case, the court v/as guilty of the same unconstitutional 
 conduct by interdicting Presbyteries from admitting to a 
 pastoral charge " irrespective of the civil benefice," and when 
 " there was involved no patrimonial right connected there- 
 with " ; and by " granting interdict against the establish- 
 "ment of additional ministers to meet the wants of an 
 " increasing population." 
 
 To begin with the last of these charges. The only 
 meaning conveyed by the averment is that, when a Presby- 
 tery had proposed to do nothing more than provide a 
 minister to supply the wants of an increasing population, 
 the Court of Session arbitrarily interposed and interdicted 
 them from doing so. Now this was a very serious charge, 
 and one above all others calculated to excite the feelings of 
 the people of Scotland, and to induce them to leave a 
 church on which such an outrage could be inflicted with 
 impunity. For every man in Scotland knew that for a long 
 series of years it had been the practice of Presbyteries 
 to sanction, without question, the erection of q2ioad sacra 
 churches, and it was known also that in this way "the 
 wants of the increasing population" had, by the appoint- 
 ment of ministers, been largely met, and a great amount of 
 good accomplished. Yet, here — if the Claim of Right is 
 to be believed — the Court of Session, in defiance of law, 
 and in disregard of the known rights of the Church, and 
 of a long established practice, had arbitrarily and tyran- 
 nically interdicted the establishment of these additional 
 ministers. 
 
 Is it true ? It is not true. There is not a word of truth
 
 27 
 
 in it. The Court of Session did net in one single instance 
 grant such an interdict, and certainly they did not do so in 
 the Stewarton case. 
 
 The true state of the matter was this : The Courts of the 
 Church, not content with following the mode previously 
 practised for supplying the wants of increasing populations 
 — not content with providing a church and ordaining a 
 minister to preach in it — a course of which, as it did not 
 infringe the constitution of the Church, and interfered with 
 no civil or patrimonial right, no o'ne had ever complained, 
 or had a right to complain, and in which, being a purely 
 ecclesiastical matter, the Courts of Law had no jurisdiction 
 to interfere — the Church Courts, I say, not content with 
 doing this, passed a series of Acts, entirely new in the 
 history of the Church, by which there were given to the 
 ministers of these quoad sacra churches seats in Pres- 
 byteries, with kirk sessions, the members of which were 
 also admitted as members of Presbytery. In this way 
 existing parishes were dismembered in order to assign 
 to the new minister a parochial district, and he was in- 
 vested with all the rights and privileges of an ordained 
 parish minister, the legal endowment only excepted. By 
 these Acts civil interests were directly affected. The 
 ministers and elders so admitted were assigned seats in 
 a Court which, by statute, has the right of judging in 
 important civil matters affecting churches, manses, and 
 glebes ; and, among others, there was conferred on them 
 the civil right of taking part in presentations to vacant 
 livings by the exercise of the jus devolutuni. 
 
 The heritors and parishioners of Stewarton— parties having 
 a say in the matter, under the constitution of the Church, as 
 much as the Presbytery had — objected to this arrangement 
 as unconstitutional. They had no objection to any num- 
 ber of chapels being erected, or to any numbei of ministers
 
 28 
 
 being ordained " to meet the wants of the increasing popu- 
 lation," but they objected to this being done in an illegal 
 way. They objected to the parish of Stewarton being 
 divided, and they objected to plead before a Court illegally 
 constituted ; so they asked the protection of the Court 
 against it, and they got it. '' It is clear," said the Lord 
 President, " that the Church, by its own authority, cannot 
 " authorize the members of what are called quoad sacra 
 " parishes to perform those duties which, as directly con- 
 " ccrniiig civil rights, the law has only devolved upon the 
 " legally constituted ministers of the Presbyteries of the 
 " Church." That the Court of Session had jurisdiction 
 to entertain a question so directly affecting civil interests 
 it requires no argument to prove. Yet the Claim of Right 
 proclaimed to the people of Scotland that in so entertain- 
 ing it and judging on it, the Court had gone beyond its 
 province, and had invaded a '' spiritual privilege " of the 
 Church, by granting interdict against the performance of a 
 purely spiritual act, in which no civil right was involved. 
 
 There was something peculiarly disingenuous in the 
 assertion thus put forth in the Claim of Right that, in the 
 Stewarton case, the Court had judged in a matter in which 
 it had no jurisdiction ; for when they were before the Court 
 the party used very different language. They never for a 
 moment pretended there that the Church Courts had any 
 warrant for passing the Chapel Acts, unless they had it by 
 statute. I give their plea in the words of the Lord Justice 
 Clerk when giving judgment — the italics being those of his 
 Lordship in the printed report revised by him. He said : 
 " The leading counsel for the Respondents (the Presbytery), 
 " in his argument at the bar, expressly disclaimed the notion 
 " that the jurisdiction claimed by the Church could rest on 
 " any other fonrtdaticn than on the statute law of the landl' 
 And again : *' ITe (the counsel for the Presbytery) anxiously
 
 29 
 
 " declared that he rested the powers contended for solely 
 " on the authority of the Acts of the Legislature in reference 
 " to the Church." But, if so, what tribunal but a Court 
 of Law could decide as to the meaning of the statutes, 
 when that meaning was disputed by two parties, the one 
 as much entitled to the benefit and protection of the 
 statutes as the other ? The plea of the Presbytery, 
 his Lordship added, " that although the power is claimed 
 " in virtue of statute alone, yet whatever violation of 
 " statute may be committed — whatever civil wrong done 
 " — whatever may be the usurpation of power, and however 
 " fundamental the changes made in the constitution of the 
 " Church, still the Supreme Court cannot declare the 
 " illegality, and prevent the wrong, is a proposition to which 
 " assent cannot, on legal principles, be seriously entertained." 
 The assertion in the Claim of Right, therefore, that the 
 Court in this case *' interdicted the establishment of addi- 
 " tional ministers to meet the wants of an increasing popu- 
 " lation " — an assertion broadly made, without qualification, 
 and without a v/ord of explanation — is without a shadow 
 of foundation. The right of the Church to provide any 
 amount of additional church accommodation was not, as 
 I have said, for a moment disputed. The only question at 
 issue was whether the Church Courts were entitled to do 
 this in a manner unknown in the Church's history and con- 
 stitution, and in direct opposition to statute law. " The 
 " species of parish proposed to be erected," the Lord Justice 
 Clerk said, " was unknown to law ; the erection of new 
 " parishes could only take place in virtue of authority 
 " flowing from statute ; and the whole history of the appli- 
 " cation to Parliament for the erection of parishes before 
 *' 162 1 and 1633 serves to prove that the Church had not 
 '' the power now claimed, and that the Presbyteries of the 
 *' Church are composed of parish ministers and elders from
 
 30 
 
 '' legal kirk sessions." And Lord Wood observed that 
 '* the Presbytery of Irvine had no power to proceed in the 
 " erection of a parish in the manner proposed, simply for 
 " this reason, that it involves a change in the constitution 
 " of the Church." Yet although unknown to law, and 
 although notoriously the procedure complained of had 
 never been practised in the Church of Scotland previous 
 to the Chapel Act of 1833, the Claim of Right makes the 
 astounding assertion that Avhat the Court granted interdict 
 against in the Stewarton case had been " uninterruptedly 
 practised from the Reformation to this day " ! 
 
 Such was the Stewarton case — the case adduced to prove 
 the assertion in the Claim of Right that, in the important 
 matter of supplying ministers to destitute populations, the 
 Court of Session had interposed to prevent it, and had tram- 
 pled on the spiritual rights and functions of the Church, in 
 a matter in v/hich no civil right or interest was involved.* 
 
 The case of Marnoch, in the Presbytery of Strathbogie, is 
 next cited as another instance of the Court coercing a Pres- 
 bytery in a matter purely spiritual. The assertion made in 
 the Claim of Right is that, in this case, the Court issued a 
 decree requiring a Church Court to take on trial a presentee, 
 and to intrude him on the congregation, contrary to the will 
 of the people — thus ''invading the Church's exclusive juris- 
 " diction in the admission of members recognized by statnter 
 
 How the decree in this case should be objected to as 
 tdtra vires of the Law Courts, when the decision in the 
 Auchterarder case is not so objected to, I do not under- 
 stand; for the one decision proceeded on the same principles 
 as the other, and was a necessary consequence of it. The 
 refusal of the Presbytery to perform the ministerial duty of 
 
 * Parishes are being constantly erected, whose ministers have the 
 full status of other parish ministers — 220 since 1843 — 18 within the 
 last year.
 
 31 
 
 taking the presentee on trial had, as ^ye have seen, been 
 declared illegal by the judgment of the House of Lords, and 
 the Ncn-intrusionists had professed to bow to the decision 
 so far as civil interests were concerned. But here the 
 very same question was involved. The presentee who had 
 been in the first instance rejected under the Veto Act had 
 raised an action similar to that in the Auchterarder case, 
 and had obtained a judgment finding that the rejection was 
 illegal, and another judgment finding that the Presbytery 
 was " bound and astricted " to take him on trial, and, if 
 found qualified, to receive and admit him according to law. 
 These judgments had been acquiesced in, and had been 
 intimated to the Presbytery, who, by a majority of seven 
 to three, had thereafter sustained a call, and resolved to 
 proceed with the trials. For doing this the majority of the 
 Presbytery had been illegally suspended by the Commission 
 of Assembly ; and the Court of Session, on being applied 
 to for protection, had granted interdict against the suspen- 
 sion being carried into effect. It was in this state of 
 matters that the Presbytery, on being required to proceed, 
 superseded consideration of the matter, and the presentee 
 raised another action to have them ordained to admit and 
 receive him according to law, and to take the necessary 
 steps for that purpose ; with an alternative conclusion for 
 damages if they refused to do so. The majority of the 
 Presbytery appeared, and admitted that they could not 
 resist decree. They stated in effect that they were satisfied 
 that, as a Court of the Church, they zcerehound to do what 
 was required of them, but that they were coerced by the 
 order of the General Assembly. As important civil rights 
 were involved, the Court had no option but to entertain the 
 application ; and with the decision of the House of Lords 
 in the Auchterarder case before them as an authority 
 which it behoved them to follow, there was only one course
 
 32 
 
 open to them. Accordingly, after hearing the minority, 
 they granted the prayer of the presentee, and ordained the 
 Presbytery to proceed. " We cannot ourselves ordain," the 
 Lord President said, " but we can ordain the Presbytery to 
 do its duty." Or, as Lord Mackenzie observed in another 
 case,* " 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 ordain you to do it, as you 
 *' aPTeed to do." The soundness of these views is obvious. 
 The members of Presbytery had undertaken at their 
 ordination to execute the ministerial functions pertaining 
 to their office, including the duty of filling vacant parishes 
 according to law. The majority felt that they were bound 
 to do what they had thus undertaken, and they were satisfied 
 that they could not be relieved of the obligation by an 
 order which, although proceeding from a superior Church 
 Court, had been judicially declared to be illegal and idtra 
 vires. And indeed they were no more bound by it than 
 they would have been bound by an order proceeding from 
 a corrupt Assembly prohibiting them from sitting in the 
 Presbytery, and from exercising their function of judging 
 there in these matters of civil right Avhich fall under the 
 cognizance of that Court. The majority was satisfied also 
 that, in discharging a civil duty — which taking the presentee 
 on trial was — in obedience to the order of a civil magistrate 
 (apart altogether from their own convictions of duty), 
 they were only following the views of the fathers of the 
 Church. One of the most eminent of these old Reformers, 
 Gillespie, had Avritteni* : '' As Church officers they are to 
 " be kept within the bounds of their calling, and compelled, 
 '' if need be, by the magistrate to do those duties which by 
 " the clear Word of God and received principles of religion, 
 " or by the received ecclesiastical constitutions of that 
 ■^' Culsalmond. t Aaroii's Rod, p. 176.
 
 '' Church they ought to do." They accordingly did what 
 they beheved to be their duty, and they did it not the less 
 readily that their own convictions of what was right were 
 fortified by judicial sanction. All these important facts — 
 the civil rights of the presentee involved in the case, the 
 civil obligation on the part of the Presbytery to fulfil a 
 ministerial function, and the concurrence of the Presbytery 
 itself represented by its majority — all this is kept back in 
 the Claim of Right, and all that is conveyed is that the 
 Court of Session had unwarrantably interposed in a matter 
 purely spiritual, and had compelled a Court of the Church 
 to intrude a minister on a congregation contrary to the will 
 of the people. Whether the settlement was or was not 
 expedient was a matter with v/hich the Court had nothing 
 to do, and into which it had no right to inquire. It was 
 simply asked to decide in a question of law : in a matter, 
 moreover, in which the law had just been declared by the 
 House of Lords. In a question depending admittedly on 
 the construction of statutes, and in which civil rights wxre 
 concerned, it was bound to do this ; and it did no more 
 than this. The accusation made against the Court, there- 
 fore, that it " invaded the Church's jurisdiction in the 
 admission of ministers recognhed by statute'' is the very 
 reverse of the truth. 
 
 Another instance adduced in the Claim of Right in sup- 
 port of the allegation that the Court of Session had invaded 
 the jurisdiction and spiritual privileges of the Church, by 
 judging in causes purely spiritual and ecclesiastical, is what 
 is known as the second Strathbogie case. The charge made 
 is that the Court had " suspended Church censures inflicted 
 " by the Church judicatories in the exercise of discipline, 
 '' and so reponing ministers suspended from their oflfice to 
 " the power of preaching and administering ordinances, 
 " thus assuming to themselves the ' power of the keys.' "
 
 This case was a branch of the one just noticed, in which 
 the majority of the Presbytery of Strathbogie had, in the 
 circumstances explained, sustained Mr. Edwards' presen- 
 tation, and resolved to proceed with the settlement. For 
 doing this the Non-intrusion majority in the Commission 
 and General Assembly first suspended, and afterwards 
 deposed them from the office of the ministry. They had 
 held the majority of the Presbytery to be guilty of 
 contumacy in giving obedience to the law, as settled in the 
 Auchterarder case, and to the decisions which had been 
 pronounced in the action at the instance of the presentee. 
 This the Court held to be manifestly ultra vires and illegal, 
 and, as farther proceedings were threatened against the 
 majority on account of their obedience to the law^ — includ- 
 ing the illegal invasion of their churches and parishes by 
 persons appointed by the Commission to take their places 
 — the Court held itself bound to protect them against such 
 an outrage on their civil rights. The Court did not reponc 
 them, and did not require to do so, as their suspension from 
 office was held to be an absolute nullity. 
 
 The Constitutional party in the Assembly opposed the 
 harsh and extreme measure of the deposition of these 
 gentlemen, Dr. Cook moving : ** That the whole had ori- 
 " ginated from the said ministers having yielded obedience 
 " to the supreme civil tribunals of the kingdom, /;/ a 
 " matter declared by the tribunals to relate to civil rights, 
 "with v\^hich the Church requires that its judicatories 
 " shall not intermeddle." But the violent counsels of the 
 dominant party prevailed, and the majority of the Pres- 
 bytery w^ere obliged to seek the protection of the Court. 
 
 This act of the Assembly, by which these members were 
 sought to be deprived of their stipends, their manses, and 
 their glebes, and to be prevented from exercising in the 
 Church Courts judicial functions affecting civil interests.
 
 35 
 
 is what is characterized in the Claim of Right as simply an 
 act of Church discipline, exercised in a purely " spiritual 
 and ecclesiastical matter," an act involving no civil conse- 
 quences, and from which, therefore, the jurisdiction of the 
 Court of Session was excluded. So far from this being the 
 case, it was, from first to last, so far as the action of the 
 Court of Session was concerned — and it is with the Court 
 of Session alone that I have here to do — a question affect- 
 ing civil rights, on which it was their peculiar province, as 
 it was their duty by statute law, and by the common law 
 of the kingdom, to sit in judgment. Yet for so judging in 
 it the Claim of Right — withholding, as in the other cases, 
 all explanation — accuses the Court of tyrannically oppres- 
 sing the Church, of " encroaching on her jr//r//?/^/ privileges," 
 and of acting " in defiance of the statutes, and in contempt 
 of the , laws of the kingdom." It is inconceivable that 
 any one should have used this language who was acquainted 
 with the actual history of the decision and the opinions of 
 the judges who pronounced it. These were overlooked in 
 the heat of the struggle in which the Church Courts 
 imagined themselves to be engaged. But nothing can be 
 clearer than that the judgment fully recognized the inde- 
 pendence and exclusive jurisdiction of the Church in every 
 genuine exercise of Church discipline. In moving the final 
 judgment, the Court laid it down expressly that "the 
 " Church Courts have an exclusive jurisdiction in inflicting 
 " Church censures. The keys, by the Confession of Faith, 
 " are committed to them alone, and the Court of Session 
 " has no jurisdiction whatever in such matters. But a 
 ** Court possessing an exclusive jurisdiction is not entitled 
 " to commit the great wrong of perverting and distorting 
 *' that jurisdiction in order to set aside rights which the 
 " Civil Court is bound to protect."* In fact, the judges in 
 * Cruickshank 7/. Gordon, loth March, 1843. 5 D, 923.
 
 36 
 
 giving redress against a tyrannical abuse of ecclesiastical 
 powers, went expressly on the principle stated by Knox, 
 in his Appellation to the Nobility and Estates of Seotland : 
 " It is lawful to God's prophets and to preachers of Christ 
 "Jesus to appeal from the sentence and judgment of the 
 *' visible Church to the knowledge of the temporal magis- 
 " trate, who, by God's law, is bound to hear their causes, and 
 " to defend them from tyrannyr * 
 
 Another instance adduced in the Claim of Right in sup- 
 port of the same charge, is what is called the second 
 Auchterarder case ; and here all that we have is the start- 
 ling statement that it was a case where the members of an 
 inferior Church Court were held liable in damages ** for 
 refusing to break their ordination vows and oaths " by 
 disobeying the orders of a superior Church Court In a 
 spiritual matter. As to what the case was about, or in 
 what circumstances the decision of the Court was given, 
 not a word. Nothing but the bare assertion that the Court 
 of Session found a Presbytery liable in damages, because 
 they refused to break their ordination oaths and vows. 
 A grave charge truly. Let us see what the facts Avere. 
 It was the sequel of the first Auchterarder case, already 
 noticed, in which the power of the General Assembly 
 to pass the Veto Act was tried, and in which It was decided, 
 first in the Court of Session and then in the House of 
 Lords, that the refusal to take a presentee on trial in 
 respect of that Act was illegal. After this decision had 
 been pronounced, the presentee came to the Presbytery 
 and asked them to act upon it, by taking him on trial. 
 But the Presbytery, In defiance of the judgment, refused 
 to do so, and therefore the presentee resorted to the only 
 alternative available to him. He could not force the Pres- 
 bytery to take him on trial, and he therefore asked that 
 * Sec Lord Medwyn's opinion.
 
 17 
 
 the Court should find them liable in compensation for the 
 civil loss to which their illegal refusal had subjected him. And 
 the Court found that he was entitled to damages. How 
 could they do otherwise 1 If the refusal to take the 
 presentee on trial had been decided to be illegal — if the 
 obligation to take him on trial was a civil obligation, and 
 if the loss to the presentee was a civil loss, on what princi- 
 ple could the Presbytery ask exemption from liability to 
 the presentee in damages, if they persisted in their illegal 
 refusal } More than this, the Presbytery was liable to 
 make reparation for the civil wrong on the showing of the 
 Claim of Right itself. That document, whatever it says as 
 to the other cases, does not question that the decision in 
 the first Auchterarder case fell within the legitimate juris- 
 diction of the Courts of Law, and it expressly states that 
 the Church " implicitly bowed to the decision, so far as dis- 
 posing of civil interests." But here was a civil interest 
 involved in the refusal of the Church to obey the decision ; 
 and if that civil interest was sacrificed by the refusal, on 
 what principle — if they bowed to the decision as regards its 
 civil consequences — could they refuse to make civil repara- 
 tion, which was all that they were asked to do } 
 
 Yet, without one word of explanation, the decision 
 of the Court finding damages due, if the Presbytery, in 
 defiance of the decision of the House of Lords, persisted in 
 their refusal, is in the Claim of Right characterized as one 
 by which the Court of Session " held the members of an 
 " inferior Court judicatory liable in damages for refusing to 
 " break tJieir ordination voius and oaths "/ More than this : 
 the Claim of Right asserts that the Presbytery was in this 
 case found liable in damages because they refused to break 
 their ordination oaths and vows " by setting at defiance the 
 '' sentences in matters spiritual and ecclesiastical of their 
 " superior Church judicatories, to which, by the constitution of
 
 38 
 
 " the Church and countjy, they are in such matters sub- 
 " ordinate and subject, and which by their said vov/s and 
 "oaths they stand pledged to obey." In the absence of all 
 explanation the only inference from this would be that the 
 Court of Session had required the Presbytery of Auchter- 
 arder to set at defiance the laiufiil sentence of a superior 
 Church Court — an inference which would be absolutely 
 false. The only orders of a superior Court which a Pres- 
 bytery is bound to obey are those which are lawful and 
 intra vires of the Court which issues them. There is not a 
 word in the Claim of Right explaining — what is the fact — 
 that the order issued in this case by the General Assembly 
 was one which by a judgment of the House of Lords had 
 been declared illegal, and that it was one therefore which by 
 " the constitution of the Church and country " the members 
 of Presbytery were bound to disregard. The duty required 
 of them — that, namely, of entering on the procedure neces- 
 sary to supply a vacant parish — was a civil duty; and there- 
 fore the members of Presbytery would have been guilty of 
 a direct breach of '* the vows and oaths " which they made 
 at their ordination, had they refused to fulfil this important 
 part of their ministerial functions. If they had entered on 
 the discharge of these functions, the Civil Courts, it was 
 admitted, could not have reviewed their proceedings, or 
 inquired into any alleged error. But what was decided — 
 and affirmed in the House of Lords — was that ** Courts or 
 "public officers, having a ministerial duty to perform, 
 " are liable to action for refusal to enter upon the 
 " performance." * Yet all this is kept back in the 
 Claim of Right. The reader is not even told what the 
 case was about, or for what reason the Presbytery was 
 sought to be subjected in damages. All that is put forth 
 is the bare unqualified, unexplained assertion that the 
 * T Bell's App., p. 662.
 
 39 
 
 Court of Session had, in a purely spiritual matter involving 
 no civil interest, found a Presbytery liable in damages 
 because they " refused to break their ordination vows and 
 oaths " by disobeying the orders of their ecclesiastical 
 superiors — all information as to what these orders v/ere 
 being withheld. 
 
 In noticing these cases it does not in any way fall within 
 the scope of my purpose to discuss the questions of law 
 involved in them. Although it could be shown that 
 in every one of them the Court of Session had committed 
 an error of judgment it would not affect the question ; 
 for — apart from the fact that the Court of Session 
 was charged with doing what it did not do at all — the 
 accusation against the Court was, not that they had 
 erred in interpreting the law, but that in defiance of law 
 and statute they had judged in the cases at all. But 
 it is impossible, in passing, to avoid noticing how much the 
 unjust and foolish charge against the Supreme Court of 
 setting the law at defiance is applicable to the Non- 
 intrusion party themselves. In this second case of Auch- 
 terarder, and in a long catalogue of cases which followed, 
 the whole difficulty arose from the dominant party in the 
 Church insisting on maintaining the Veto Act after it had 
 been declared to be idtra vires and illegal. Some of the 
 best men among themselves were of opinion that they 
 should have at once conformed to the decision of the House 
 of Lords by repealing it. Dr. Chalmers published a pamph- 
 let * in which he urged them to rescind it ; and their own 
 friend, Lord Cockburn, writing in 1842, says, "They are 
 "suffering severely and justly for the folly of adhering to 
 '* the Veto Act after the House of Lords declared it to be 
 *' illegal."t And Lord Cockburn adds, what is most true, 
 
 * What ought the Church and people of Scotland to do now .' 
 t Life, Vol. I, p. 331.
 
 40 
 
 that " giving it up would not liave been inconsistent with 
 " any of their constitutional principles, however incon- 
 "venient it might have been to their policy, or hovv'cver 
 " galling to their pride. Their not doing so is the source 
 '' of most of their troubles." 
 
 Before leaving this Auchterarder case, there is one point 
 in connection with it to which I would ask attention, as 
 showing not only how much the Veto Act was opposed to 
 the old and settled law of the Church, but how illogical and 
 inconsistent the Claim of Right is. In a paragraph pre- 
 ceding that which professes to state what the Court of 
 Session did in the Auchterarder case, the Claim of Right 
 says that, by the Act 1690, c. y;^, entitled *' Act concerning 
 Patronages," the whole matter of the rights of the people 
 was " definitely settled"; and the Claim of Right complains 
 that what the Court of Session did was to unsettle what 
 had thus been definitely settled — to upset, in short, a con- 
 dition of things with which the Church was contented, and 
 in which she sought to be protected. Now, observe zu/iaf 
 it was that was settled and fixed by this important Act. 
 By it — I quote the words of the Claim of Right itself — 
 " a right was vested in the heritors and elders of the 
 " respective parishes to name and propose the person to the 
 " whole congregation to be approved or disapproved by 
 '' them — t/ie disapprovers giving in tJieir reasons to the effect 
 "■ the affair may he cognoseed by the Presbytery of the 
 " boimds!' 
 
 But the Veto Act unsettled all that was thus " definitely 
 settled." Not only in disregard of the later Act of Queen 
 Anne, but in direct violation of this old statute of 1690, the 
 Veto Act dispensed with the disapprovers giving in reasons. 
 It vested in them — an irresponsible body — the absolute and 
 final power of rejecting a presentee without assigning any 
 reason whatever, and it took entirelv out of the hands of
 
 41 
 
 the Presbytery the power and the duty of "cognoscing" upon 
 the matter, which the Act of 1690 conferred upon them, and 
 which it required them to exercise as a statutory duty. It 
 does not concern me to discuss in what respect matters were 
 altered by legislation subsequent to 1690. All that I desire 
 to point out is that while the Claim of Right is careful to 
 point out that an Act which is described as having " de- 
 finitely settled " everything, and which is referred to as one 
 which met the views of the Church, required the people, if 
 they objected to a presentee, to state their reasons, and 
 vested in the Presbytery the power and the duty of judging 
 of these reasons, the Veto Act reversed all that, giving to 
 the people an absolute and unreasoning veto, and depriving 
 the Presbytery of all power of cognition. Yet the Non- 
 intrusionists clung to the Veto Act ; and their refusal to 
 repeal it after it had been declared Illegal was the chief 
 cause of all the trouble that overtook them and the 
 Church. 
 
 To pass to another instance — one of the very worst in 
 this extraordinary document. The Claim of Right asserts 
 that the Court of Session carried their illegal encroach- 
 ments on the spiritual privileges and jurisdiction of the 
 Church so far as to " interdict the General Assembly and 
 " inferior CluircJi, judicatories from inflicting Church ccn- 
 " snres, as in one case where interdict was granted against 
 *' the pronouncing of sentence of deposition upon a minister 
 " found guilty of theft by a judgment acquiesced in by him- 
 "self ;* in another, where a Presbytery was interdicted from 
 " proceeding in the trial of a minister accused of fraud and 
 " swindling ;t and in a third where a Presbytery was inter- 
 " dieted from proceeding with a libel against a licentiate for 
 " drunkenness, obscenity, and profane swearing." \ Here, 
 
 * Cambusnethan case. t Stranraer case. 
 
 + 4th Lethendv case.
 
 42 
 
 again, not a word of explanation is given, and the only in- 
 ference to be drawn from the statement is that, in matters 
 of legitimate discipline, which from the beginning of the 
 Church's history have been uniformly recognized as falling 
 within the Church's jurisdiction, and which in the cases in- 
 stanced were depending before Courts of the Church duly 
 constituted, the Court of Session had wantonly and tyran- 
 nically stepped in to shield from the Church's discipline a 
 thief, a swindler, and a drunkard. 
 
 The serious charge thus left to be inferred against the 
 Supreme Court is, like the others adduced already, without a 
 shadow of foundation. In the cases cited, there was no ques- 
 tion raised before the Court of Session as to the guilt or 
 innocence of the parties accused. No question was raised 
 there as to the right and the duty of the Church Courts to 
 deal with such questions, for that was admitted without 
 qualification. Neither was it sought in any of the cases 
 cited to protect the wrongdoers from the punishment justly 
 due to the crimes of which they stood accused. None of 
 these questions was before the Court, and into none of 
 them did the Court inquire. In not one of them 
 was it proposed to supersede the jurisdiction of the 
 Church Courts. In all of them, the only question raised 
 was an important question of law affecting the constitu- 
 tion of the CJiurcJi Conrts which had dealt, or were deal- 
 ing with these cases. The averment of the complainers 
 was that, by the introduction into Presbyteries of parties 
 who were not entitled to sit there as judges, the constitu- 
 tion of the Courts had been vitiated. We admit, the com- 
 plainers said, that the errors of which we are accused, fall 
 properly within the jurisdiction and discipline of the Courts 
 of the Church ; but we claim to be tried by those alone 
 who, by the settled constitution of the Church, are entitled 
 to sit as judges in the Presbytery. And all that the Court
 
 43 
 
 of Session was asked to do was, not to shield the parties 
 accused from the discipline of the Church, but simply 
 to stay proceedings until the legal question of the con- 
 stitution of the Court, before whom they had been cited, 
 should be settled. It was in regard to this question 
 alone — a pure question of law, involving civil interest 
 — that the Court exercised jurisdiction. The Lord 
 President, in one of the cases, emphatically declared : " No 
 " one niiist suppose that it is our zvish to interfere with 
 " the ecclesiastical functions of the Presbytery ; but we have 
 " the assertion made, and there is no doubt of it, that an 
 " individual sits as a member of the Presbytery, who is not 
 " entitled to enter the door, and that, therefore, any 
 " sentence pronounced by the Presbytery must be null and 
 '' void quoad its execution." The accused party might be 
 all that was bad ; but he was entitled to be tried by the 
 judges competent to try him according to the law of the 
 Church, and the law of the land. And in each case, 
 the most important civil and patrimonial rights were 
 at stake. It was only for protection against any thing 
 being done contrary to law which would affect these 
 civil rights that the Court of Session was appealed to ; 
 and because of these civil rights alone did the Court 
 exercise its jurisdiction. How entirely does this simple 
 explanation dispose of the gross imputation made against 
 the Court, that they interposed without reason to shield 
 from discipline drunkards, thieves, and swindlers. Yet not 
 one word is stated in the Claim of Right explanatory of the 
 circumstances in which the jurisdiction of the Court was so 
 justly and legitimately exercised. 
 
 Two other decisions are cited — both arising out of the 
 Strathbogie case — in each of which the Court of Session is 
 accused of having invaded the jurisdiction and encroached 
 on the purely spiritual privileges of the Church. In one
 
 44 
 
 of these ■•'■ the Court is charged with having granted an 
 interdict against the execution of a sentence of deposition, 
 and with supporting the deposed ministers in the exercise 
 of ministerial functions ; and in the other f the Court is 
 accused of interfering as to the right of members to 
 take their seats in the General Assembly — ''thus violating 
 " the freedom of the Church, and violating her freedom in 
 " the holding of General Assemblies, secured to her by 
 " statute." Again, no explanation is given, and again, 
 as in the other cases, it is left to be inferred that the 
 Court had interfered, arbitrarily and tyrannically, with the 
 acknowledged rights and privileges of the Church, and with 
 the rights of members legally elected to take their places 
 in the General Assembly. Yet the explanation is as 
 easy as it is satisfactory. In the one case the Court 
 was merely following out its previous judgment by pro- 
 tecting parties who had applied to it whose civil rights 
 were threatened to be interfered with by an illegal and 
 unconstitutional Act of the General Assembly; and in the 
 other, all that the Court, on being appealed to, did, w^as to 
 interdict from acting as members of Assembly ministers 
 w^ho had been elected by a minority only of their Pres- 
 bytery, and who were therefore illegally elected — the Court 
 in this, as in the other cases just noticed, only judging 
 on a legal question regarding the proper constitution of 
 a Court whose function it was to deal with civil rights 
 as well as with spiritual matters. 
 
 I shall notice only one other case, that of Culsalmond.^ 
 It is adduced in the Claim of Right as another instance of 
 the Court of Session stepping beyond its province, and en- 
 croaching on the spiritual privileges of the Church Courts 
 in defiance of statute law. The assertion in the Claim is 
 
 ^' Third Strathbogie Case. t Fifth Strathbogie Case. 
 
 :!: Middleton v. Anderson, loth March, 1843.
 
 45 
 
 that the Court in this case '' interdicted the execution 
 " of the sentence of a Church judicatory, prohibiting a 
 "minister from officiating or administering ordinances 
 "within a particular parish, pending the discussion of a 
 " cause in the Church Courts as to the validity of his 
 " settlement therein." Here, again, no explanation is given, 
 and it is left to be inferred that the Court had arbitrarily 
 interfered in a purely spiritual matter, in which the Church 
 Courts were acting in a legal and constitutional manner. 
 The fact is withheld that the act complained of was 
 the extraordinary and unprecedented attempt of the 
 Commission of Assembly to suspend an ordained minister 
 actually settled, and to prohibit the administration of 
 ordinances in a parish, on the mere allegation of certain 
 individuals, that his settlement had been irregular, and that 
 the commission had done this, not only without hearing 
 the parties, but before they had even been cited. The whole 
 matter arose out of the continued determination of the Non- 
 intrusion party to enforce the Veto Act after it had been 
 declared illegal. The facts were these. An ordained 
 minister had received a presentation to a parish, and the 
 Presbytery, in fulfilment of their ministerial duty, and 
 acting on their own unbiassed judgment, sustained the call, 
 and admitted him. A minority of the Presbytery, however, 
 and certain of the parishioners presented a petition to the 
 Commission of the Assembly — whose power to entertain 
 the matter at all, by the way, was more than questionable 
 — complaining of the settlement on the ground, inter alia, 
 and " more especially " that, in their proceedings in the 
 settlement, the Presbytery had disregarded the Veto Act. 
 The Presbytery had certainly disregarded that Act, and for 
 the very good reason that it had been declared ultra vires 
 and illegal by the judgment of the House of Lords. The 
 Commission, however, ordered the parties to be cited before
 
 46 
 
 them, and in the meantime took, as 1 have said, the extraor- 
 dinary and unwarrantable step of prohibiting the minister 
 from officiating or administering ordinances until the case 
 should be heard. It was in these circumstances that the 
 minister applied to the Court for protection, and got it. 
 The Lord President said : " The attempt to arrest the 
 "settlement being founded principally, if not solely, on the 
 " application of the Veto law, and that law as a legislative 
 " Act of the Church having been declared wholly abortive, 
 " the right of those aggrieved by the extraordinary and 
 " unprecedented interference of the Commission of the 
 " General Assembly to apply for protection flows directly 
 "from the solemn determination of the law promulgated 
 ** by the judgment of the House of Lords in the case of 
 " Auchterarder." As I have already said, the Claim of 
 Right avers that "the Church" had bowed to that decision 
 as regarded civil rights, but here the action of the Com- 
 mission was a direct invasion of civil rights. This the 
 Lord President noticed. " Any attempt," his lordship said, 
 '* to use the Veto law as a bar to the taking on trials and 
 " admission of a presentee is a direct invasion of civil right. 
 " The Church is utterly powerless in attempting to subvert 
 " by its own authority the law of Patronage, which is a mat- 
 '* ter regulated by the statutory law of the land, and to which, 
 *' until altered by the legislature, implicit obedience must 
 " be given." In such circumstances, it was obviously the 
 function, as it was the duty, of the Court to uphold the 
 statute law, and to give effect to the decision of the House 
 of Lords. It had no alternative. Yet all this is kept back, 
 and without a v/ord of explanation the case is represented 
 as one in which the Court of Session had tyrannically 
 interfered to subvert the government of the Church and to 
 violate statute law ! 
 
 Such are the principal cases dealt with in the Claim
 
 47 
 
 of Right. In not one of them did the Court of Session 
 do what it accuses them of doing. In not one of them 
 did that Court do anything but exercise the judicial 
 function, imposed upon it by the laws of the country, of 
 judging when required in cases where civil interests were 
 concerned; and in every one of them the decision proceeded 
 on the ground that the constitution of the Church itself 
 was being sought to be violated, and that the interposition 
 of the Court was necessary to protect it from violation. 
 
 Had the Court erred in judgment in any of the cases, 
 it would not have been surprising. If in point of fact 
 they did err, it would not in any way affect my argu- 
 ment, for in every case the Court admitted the indepen- 
 dence of the Church Courts acting within their own pro- 
 vince, and proceeded on the ground of some excess of 
 power, resulting in a violation or denial of civil rights. 
 All courts occasionally err ; but no one would dream of 
 accusing them of acting " in defiance of statutes, and in 
 contempt of law," because they erred in the application 
 of the law. I believe it to be now the opinion of the 
 soundest lawyers that in all the predisruption cases — with 
 one unimportant exception — the decisions of the Court of 
 Session were the result of a true interpretation of the law, 
 and that the cases fell legitimately within its proper juris- 
 diction as the only tribunal competent to decide disputed 
 points involving civil interests. The exception to which 
 I have referred, was one where I think the Court was 
 wrong ; but that case has been made use of to an extent 
 altogether beyond its importance. It was an interdict 
 granted in absence. The parties complained of made no 
 appearance ; and in such cases interdicts are apt to be 
 granted without that consideration which the matter 
 would receive were appearance made, and the ques- 
 tion argued. As it was, it was a very harmless
 
 48 
 
 proceeding. The party v/ho applied for the Interdict 
 never sought to enforce It. The party against whom 
 it was directed paid no attention to It, and certainly 
 the Church was not In that instance " coerced," or the 
 freedom of her action arrested by anything the Court did. 
 Had the case proceeded, there can be no doubt that the 
 interdict would have been recalled — and that for the simple 
 reason that, however unwarrantable and provoking the 
 conduct of the party complained of was, no civil interest 
 w^as involved. I may add that, as a rule, all the interdicts 
 were set at defiance by the Non-intrusion party, which 
 openly sought " to show its contempt of the Civil Court." * 
 The members, illegally elected by the minority of the 
 Strathbogie Presbytery, took their places in the General 
 Assembly in avowed defiance of the judgment of the 
 Court of Session — announcing as they did so that they 
 had come there to break the interdict. In the same spirit, 
 while the Stewarton case was in dependence, a case which 
 involved the most important civil interests, and which on 
 the admission of the Non-intruslonists themselves, fell to be 
 determined on the interpretation of statutes — the General 
 Assembly declared its resolution to maintain the quoad 
 sacra ministers, wdiatever the determination of the Court 
 might be. t 
 
 In every one of the other cases the Court of Session 
 did no more than exercise its legitimate function of 
 judging on matters of civil Interest. It exercised no 
 " coercion " in the settlement of ministers — it never 
 sought to compel the Church Courts to break oaths 
 and vows, or do anything else which their conscience dis- 
 approved. It only, when called upon, decided what the 
 law was ; and when the dominant party refused, in matters 
 affecting civil interest, to obey the law, the Court had no 
 *Life of Lord Cockburn, vol. I, p. 235. t Ibid, p. 235.
 
 49 
 
 alternative but to ordain them to make compensation to the 
 parties whose civil rights were compromised by the refusal. 
 The majority in the Assembly professed to yield implicit 
 obedience to the sentences of the Courts of Law in those 
 civil matters which concerned themselves, but refused to 
 obey them where the rights of others were concerned. In 
 these cases they sought to shelter themselves under the 
 plea that the act declared illegal was a spiritual act, and 
 that the Court of Session had no jurisdiction, even though 
 in carrying out the spiritual sentence civil rights were 
 sacrificed. What we have done, they said, is a spiritual 
 act ; if it injuriously affects the civil rights of other parties, 
 so much the worse for these parties ; that is Jus tertii to us, 
 and you the Court of Session cannot inquire into it or give 
 relief, however illegal you may consider our proceedings to 
 be. The answer of the Court — as it must be the answer of 
 every jurist — was: The question of our jurisdiction depends 
 upon the other question, whether, by the laws under which 
 alone the Church has a corporate existence, you have power 
 to do the acts complained of — and of that question we are, 
 by the laws and constitution of the kingdom, the only 
 judges. If we find you Jiave the power, we cannot enter- 
 tain the complaint, whether we approve of your acts or 
 disapprove of them. But, if the party complaining avers, 
 and succeeds in satisfying us, that you have exceeded 
 your power, then it will be our duty to declare your sen- 
 tence null. With its purely spiritual consequences wc 
 have nothing to do ; but we shall declare it null, and set it 
 aside, in so far as it interposes as a bar to that relief to 
 which every subject is entitled, where his civil rights are 
 affected by an illegal act. On that principle, and on 
 that only, did the Court act in all the predisruption 
 cases, and it was on precisely the same principle that it 
 
 dealt with the Free Church in the Cardross case. 
 
 D
 
 50 
 
 But it was not on that principle, nor on any principle, 
 that the Court did, or, rather, could possibly have done, 
 what is alleged against them in the Claim of Right. The 
 statement that they did what is there alleged is simply 
 baseless. And I may add that the cases which have 
 occurred since 1843 abundantly prove that none of the 
 decisions referred to justify the allegation that the Civil 
 Court, in pronouncing them, asserted a right to interfere 
 with '' the peculiar functions and exclusive jurisdiction " of 
 the Courts of the Church.* 
 
 I may add that it has become a stereotyped boast 
 of the party in the Free Church, now represented by Dr. 
 Rainy, that the Claim of Right has never been answered. 
 Nothing could be further from the truth. Putting aside 
 the answers which have been made to it over and over 
 again in various publications since 1843, it is enough to 
 say — paradoxical though it may seem — that it was an- 
 swered before it was written. The Claim of Right is truly 
 nothing more than a rechauffe of what the party had brought 
 forward in the cases decided before its date. All the 
 statutes, all the decisions, all the averments in it, are the 
 same statutes and decisions and averments on which they 
 founded in these cases — only the Free Church party, when 
 they were at the bar, did not venture to present to the 
 Court such a misleading account of the cases as the Claim 
 of Right does. They argued that, according to their con- 
 struction of the statutes and decisions, all that they had 
 done was legal, and that the parties complaining were not 
 entitled to redress. The answer to all this is to be found 
 in the statements of the parties on the opposite side — and 
 
 * See Sturrock v. Greig, 3rd July, 1849, 11 D, 1220; Lockhart v. 
 Presbytery of Deer, 5th July, 1851, 13 D, 1296 ; Paterson v. Presbytery 
 of Dunbar, 9th March, 1861, 23 D, 720 ; Wight v. Presbytery of 
 Dunkeld, 29th June, 1870, 8 MacP., 921.
 
 51 
 
 these were full and exhaustive. The report of the plead- 
 ings, and of the speeches of the judges in the Auchterarder 
 case alone, occupies two bulky octavo volumes of the Law 
 Reports. And the answers prevailed. The Courts of Law, 
 sitting in judgment as impartial tribunals, were satisfied 
 that the Free Church party was in the wrong, and they de- 
 cided accordingly, giving that redress in regard to the civil 
 rights and interests involved, which the circumstances of 
 each case called for. The Claim of Right, therefore, is — 
 except in one important particular — nothing more than a 
 repetition of the case of a disappointed litigant — worthless 
 for every practical purpose after the case had been decided, 
 and his pleas repelled as untenable. 
 
 But in one particular the Claim of Right is not a 
 repetition of the case which the Free Church party sub- 
 mitted to the Court. With intelligent judges on the bench, 
 and acute counsel on the other side of the bar, and with 
 the authorized reports of the decisions open before them, 
 the Non-intrusionists could not venture to state matters as 
 other than they were. They were free to use such argument 
 as they thought proper, but with facts they did not dare to 
 tamper. Had the same course been followed in the Claim 
 of^Right — had the facts been stated in each case fairly 
 and impartially, as they came out before the Court — the 
 Claim of Right would have proved a very harmless, and, 
 for the purpose intended, a very useless document. But 
 in the Claim of Right that course was not taken ; and 
 when, in the form in which it has been presented, an 
 answer to it is challenged, the answer is a short one — it 
 is not true. The premises being false, the conclusion falls 
 to the ground. Had the premises been true — had the 
 Court of Session done what the Claim alleges, there 
 might be some room for argument. But, if the accusa- 
 tion against the Court of Session is untrue — if any
 
 52 
 
 man of ordinary intelligence can, by turning up the law 
 reports, see for himself, as he will see, that the Court did 
 not do what it is accused of doing, there is no case to 
 argue about. When the Claim of Right, for example, makes 
 the wild assertion that the erection of parishes by the Church 
 on its own authority, and the assigning to the members 
 and elders of such parishes seats in the Church Courts had 
 been " uninterruptedly practised from the Reformation to 
 this day," what are we to think of the party which makes it 
 matter of boast that that assertion has never been answered ? 
 And so with the other assertions in the Claim of Right. 
 So with the assertion — in which it is all summed up — that 
 in all the decisions quoted, the Court of Session had 
 " invaded the jurisdiction of the Church, had usurped the 
 " power of the keys, had illegally attempted to coerce the 
 " Church Courts, and had acted in opposition to the 
 '' doctrine of God's Word, in violation of the constitution 
 " of the country, in defiance of the statutes, in breach 
 " of the Treaty of Union, and in contempt of the laws 
 *' of the kingdom." That is what the Claim of Right asserts 
 — what Dr. Rainy and his party continue to assert. I 
 think the friends of truth have erred in contenting them- 
 selves with a simple denial of it, and challenging the party 
 which makes the assertion to prove it. But as that party 
 have never responded to this challenge, and yet continue to 
 repeat the assertion, I think it is proper to assume the onus 
 of proving the negative. This I have attempted to do. I 
 have at least said enough to make it the duty of every candid 
 Free Churchman to examine into the facts and judge for 
 himself. 
 
 GLASGOW" : 
 PRINTKD BY IMACI.KHOSE AND MACDOL-GAI
 
 ^r<^, '-^^